Human Rights and Power in Times of Globalisation [1 ed.] 9789004346406, 9789004346390

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Human Rights and Power in Times of Globalisation

Human Rights and Power in Times of Globalisation Edited by

Ekaterina Yahyaoui Krivenko

leiden | boston

Cover illustration: Element of MyZeil shopping centre building, Frankfurt am Main. Photo by Ekaterina Yahyaoui Krivenko. Library of Congress Cataloging-in-Publication Data Names: Yahyaoui Krivenko, Ekaterina, editor. Title: Human rights and power in times of globalisation / edited by Ekaterina Yahyaoui Krivenko. Description: Leiden ; Boston : Brill Nijhoff, 2018. | Includes papers presented at “ a conference ... organised and held from 31 November to 1 December 2015 at the Irish Centre for Human Rights, National University of Ireland Galway.”-- ECIP galley “Context of the Volume” | Includes bibliographical references and index. Identifiers: LCCN 2017053622 (print) | LCCN 2017056413 (ebook) | ISBN 9789004346406 (E-book) | ISBN 9789004346390 (hardback : alk. paper) Subjects: LCSH: Human rights and globalization--Congresses. Classification: LCC KZ1266 (ebook) | LCC KZ1266 .H8584 2018 (print) | DDC 341.4/8--dc23 lc record available at https://lccn.loc.gov/2017053622

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-34639-0 (hardback) isbn 978-90-04-34640-6 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. 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. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

To my husband Yahyaoui M.B.S. and my son Rayan who are my constant supporters.

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Contents Notes on Contributors ix Introduction: Human Rights, Power and Globalisation: A Roadmap 1 Ekaterina Yahyaoui Krivenko

Part 1 Human Rights in Times of Globalisation: A Panacea? 1 Indigenous Peoples’ Collective Self-determination in the Age of Legal Globalisation 13 Ranjoo Seodu Herr 2 Re-appraising the Significance of ‘Third-Generation’ Rights in a Globalised World 42 Dustin N. Sharp

Part 2 Human Rights and Power of States in Context 3 Sovereignty as Responsibility at the International Criminal Court: The Frontiers of International Judicial Intervention 69 Emanuela Piccolo Koskimies 4 Taming the Way of Conducting Hostilities in Times of Global Conflict 109 Patrycja Grzebyk 5 Denizenship as a Basis for Compulsory Diplomatic Protection: Does Residence Security as a Human Right Restrict State Sovereignty? 135 Tomoko Yamashita

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Part 3 Human Rights and Power of International Organisations 6 International Organisations and the Pluralist International System: Threatening the Role of Human Rights? 173 Scarlett McArdle 7 The Gradual Normative Shift from ‘Veto as a Right’ to ‘Veto as a Responsibility’: The Suez Crisis, the Syrian Conflict, and un Reform 196 Nao Seoka

Part 4 Human Rights Taming Power Through Domestic Processes 8 The Bounds of (Il)legality: Rethinking the Regulation of Transnational Corporate Wrongs 227 Valentina Azarova 9 Imagining People’s Tribunals as the Promoter of Human Rights 267 Regina Menachery Paulose Index 287

Notes on Contributors Valentina Azarova is an international law researcher and practitioner currently a Post-Doctoral Fellow at the Center for Global Public Law, Koç University Law School. She researches and has several publications on the regulation of ­contemporary belligerent occupations under international law, the notion of third p ­ arty ­responsibility and processes of peer enforcement in international and t­ ransnational legal process. With over a decade of experience in human rights documentation and advocacy with local and international nongovernmental groups, she is continues to advise rights groups and is a legal adviser to the Global Legal Action Network (glan). She completed her doctoral studies at the Irish Centre for Human Rights, nui Galway. Patrycja Grzebyk is Adjunct Professor at the University of Warsaw. Her field of research is International Humanitarian Law, International Criminal law, Human Rights Law and Use of Force Law. Author of numerous publications, including the monograph Criminal responsibility for the crime of aggression, Routledge 2013. Holder of scholarships of the Foundation for Polish Science, Polish Ministry of Science and Higher Education, Polish Ministry of Foreign Affairs. She was visiting professor or research fellow at the Universities of Cambridge, Geneva, Zagreb, Barcelona, Munich, Madrid as well as at the Peking University and Renmin University of China. She is a deputy director of the Network on Humanitarian Action at the University of Warsaw. Lecturer of numerous courses on human rights and international humanitarian law for the army as well as for civilian students. More info at: http://www.en.ism.uw.edu.pl/dr-patrycja-grzebyk/; email address: [email protected]. Ranjoo Seodu Herr is Associate Professor of Philosophy at Bentley University, ma, u.s.a. She has published widely on topics of political and social philosophy, feminist philosophy, and comparative philosophy in peer-reviewed journals, such as Hypatia, Meridians, Political Theory, Social Theory and Practice, and Philosophy East & West. Herr’s current research interests are in theories of democracy, nationalism, collective self-determination, human rights, multiculturalism, global governance, feminist philosophy, Third World/transnational feminisms, and Confucian philosophy.

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Emanuela Piccolo Koskimies is a PhD Candidate in World Politics and sylff fellow at the University of ­Helsinki. Interested in the cross-disciplinary field of International Theory, her current research deals with the prospects and limitations of international institutionalisation, focusing on the mediating forces that bridge the normative and the empirical articulations of the phenomenon. She has been visiting research fellow at several universities and institutions, including the University of Liverpool’s School of Law and Social Justice, the Center for the Politics of Transnational Law of the Vrije Universiteit Amsterdam and the Global Governance research unit of the wzb Berlin Social Science Center. Scarlett McArdle is a Senior Lecturer in Law at the University of Lincoln. She has held this post since September 2017. In 2014 she completed her doctoral thesis at the University of Sheffield on the International Law Commission’s work on the Responsibility of International Organisations and the complexity in applying these principles to the European Union as an international actor. Her research interests largely focus on the global nature of the European Union, interinstitutional relationships at the international level and the law of responsibility, predominantly in relation to institutional frameworks. Regina Paulose received her j.d. from Seattle University School of Law (2004) and her l.l.m in International Crime and Justice from University of Turin/unicri (2012). She has been a practicing attorney in the United States where her focus is on international criminal law and human rights. She was the Chair of the Steering Committee for the United Kingdom Child Sex Abuse People’s Tribunal for its duration. She publishes in the areas of genocide and human rights. Nao Seoka is a lecturer at Faculty of International Studies of Kindai University, Japan. He specializes in Public International Law and Collective Security Law. He received his m.a. in Law from Doshisha University, Kyoto in 2002, ll.m in International Legal Studies from New York University School of Law as a Fulbright scholar in 2009, and Ph.D. in Law from Doshisha University in 2013. He published his first monograph, The Implications and Limitations of the Veto Power in the United Nations: A Critical Review of the Practice from its Birth to the Suez Crisis (Tokyo: Shinzansha Publisher, 2012) (in Japanese). His published articles include ‘The Conflict between Order and Justice in the United Nations ­Collective Security System: The Case of nato Air Bombing on Kosovo’ in Doshisha Law Review

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(2005) (in Japanese). He is currently working on recognition of governments, humanitarian intervention and laws of armed conflict. Dustin N. Sharp is an associate professor at the Joan B. Kroc School of Peace Studies at the University of San Diego where he teaches courses in transitional justice, human rights, and advocacy. Prior to teaching, he worked as an attorney at the United States Department of State and as a researcher at Human Rights Watch, where he documented atrocities in West Africa. Sharp is the editor of Justice and Economic Violence in Transition (2014), and has authored numerous scholarly articles appearing in journals such as the International Journal of Transitional Justice and the Harvard Human Rights journal. He holds law degrees from Harvard and Leiden Universities. Ekaterina Yahyaoui Krivenko is currently a lecturer at the Irish Centre for Human Rights, School of Law, National University of Ireland Galway. She studied and worked in Germany, Switzerland, Canada and the usa. She specialises in gender, migration, and theoretical approaches to global ordering. In 2016 she received nui Galway President’s award for research excellence. She is a member of the coordinating committee of the interest group on International Legal Theory and Philosophy of the European Society of International Law. She acted as an independent expert for the eu Horizon2020 Programme. From 2013 to 2016 she led a eu FP7 funded project addressing the challenges of human rights in global constitutionalism. Her most recent book entitled Rethinking Human Rights and Global Constitutionalism: From Inclusion to Belonging is published by Cambridge University Press in 2017. Tomoko Yamashita is Lecturer in International Law at Aichi Prefectural University, Japan. She holds a Ph.D. (2015), ll.m. (2009) and ll.b. (2007) from Kobe University, Japan and Master complémentaire en droit international (2012) from Université libre de Bruxelles, Belgium. She researches and publishes in the areas of international criminal law, international investment and human rights with a special focus on questions of jurisdiction.

Introduction: Human Rights, Power and Globalisation: A Roadmap Ekaterina Yahyaoui Krivenko Abstract This chapter describes the context and basic assumptions of the volume. It summarises the main arguments of each chapter explaining the structure of the volume and connections between chapters. It also draws general conclusions.

Keywords Human rights – globalisation – power – states – institutions



Context of the Volume

Very often globalisation is pointed out as a distinct feature of our contemporary condition. However, what precisely globalisation means remains, what consequences it has in different areas and how to respond to challenges posed by globalisation remains a highly contested issue.1 While there are different understandings of globalisation and divergent analyses of the consequences of globalisation, hardly anybody denies that today we are living in a world that is characterised by more intense exchange and interconnectedness in a variety of areas.2 This intensity of exchange and interconnectedness leads to

* Lecturer, The irish Centre for Human Rights, School of Law, NUI Galway. 1 On many difficult issues arising when one attempts to study globalisation, see e.g. a very informative critical volume by Jan Aart Scholte that so far had two editions: Jan Aart Scholter, Globalization: A Critical Introduction, 2nd ed (New York: Palgrave Macmillan, 2005). 2 With regard to the origins and historical development of globalisation, there are again divergent views, some of which emphasise historical continuity of what we call today globalisation from so far back as Middle Ages. This position is represented most prominently by Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton and Oxford: Princeton University Press, 2006).

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important changes in ways familiar institutions, structures and norms function. These changes can be more or less visible but at times they attain such a degree that the institution, structure or norm in question is not able anymore to fulfil adequately the function for which it was created. This volume proceeds from the assumption that this is precisely what happens to the system of human rights today. If activists and scholars invoke so often today the end or the ­crisis of ­human rights,3 it is precisely because globalisation altered the ­functioning of human rights in unprecedented ways. In particular, the powerlimiting ­function of human rights becomes perhaps less efficient in face of new ­actors, new systems and institutions emerging in our contemporary globalised society. If traditionally the threat to human rights came from states, today a variety of new ways appeared in which individuals’ rights a threatened from non-state actors, international organisations or even systems. Moreover, states’ role in human rights violation, enforcement and implementation also changed significantly. All these factors lead to the inability of the human rights system to fulfil its power-limiting function even to the limited extent to which it was successfully fulfilled in the traditional international law system in the 70-ies or 80-ies. Against the backdrop of these developments the question about the continuing relevance and the role of human rights in the globalised society arises. This volume therefore targets the changing nature of the p ­ ower-limiting or power-taming function of human rights under the conditions of globalisation. Are human rights able to some limited extent and perhaps in a way distinct from their traditional functioning to constrain arbitrary exercise of power by new actors and by old actors under different conditions? If yes, how precisely and what are the strategies that allow human rights to function successfully? If no, what is required for human rights to become again successful in limiting power of various actors under the conditions of globalisation? If this is not possible, what alternative mechanism could be proposed? In an attempt to provide some answers to these questions, a conference was organised and held from 31 November to 1 December 2015 at the Irish Centre for Human Rights, National University of Ireland Galway. The scholars from a variety of disciplines and perspectives discussed these questions with the aim to provide clarifications illuminating various specific subject areas of human rights. A general answer to the above questions dealing with foundations and theoretical underpinnings of the human rights system is more adequately addressed within a framework of a monograph and therefore excluded from the

3 Costas Duzinas, The End of Human Rights (London: Bloomsbury, 2000), Stephen Hopgood, The Endtimes of Human Rights (Ithaca and London: Cornell University Press, 2013), Eric A. Posner, The Twilight of Human Rights Law (Oxford: Oxford University Press, 2014).

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purview of the present volume. However, no one single scholar is able to cover the diversity of areas that human rights enter and influence today. Therefore, this volume aims at providing as much clarification as possible on the above questions by addressing various subfields of human rights as they unfold today, under the conditions of globalisations. Some of these areas are very familiar and human rights deal with the power unfolding in these areas from the first days of their existence. Such are for example, issues of diplomatic protection (Chapter 5), the problem of applicability of human rights in armed conflict (Chapter 4) or the interplay between human rights and state sovereignty in international criminal law (Chapter 3). However, as the chapters included in this volume demonstrate, globalisation rendered more complex conditions and circumstances under which these issues arise today. Therefore, the capacity of human rights to act as a power-taming mechanism changes today as compared to the early days of human rights even in these traditional areas. The chapters highlight some new developments that indicate how human rights system can adapt to these new conditions and circumstances brought about by globalisation and suggest ways forward. Other chapters while dealing with traditional international law areas, such as powers of the Security Council (Chapter 7) or the issue of responsibility of international organisations (Chapter 6) demonstrate how human rights as a mechanism become more relevant in these areas due to the new ways in which these areas progressively encroach on individual rights and freedoms. In this light, raising issues about the functioning and role of human rights in these areas becomes more urgent today. While problematizing the role of human rights in these traditional areas the chapters do not dismiss completely the relevance of human rights, but highlight persisting difficulties and hurdles. The same idea – that human rights while facing difficulties and being inadequate in their present form to the challenges of globalisation have a potential to provide much needed answers if reformed effectively – is expressed in two chapter that deal with areas of human rights themselves. The chapter on indigenous peoples’ rights (Chapter 1) and the chapter on third generation rights (Chapter 2) demonstrate the inadequacy of human rights framework as such, as they unfold in these two areas traditionally covered by human rights. The fact that human rights themselves can at times serve the power instead of limiting it becomes apparent in these two chapters. Despite at times staunch criticism expressed in these two chapters with regard to the human rights mechanism and its inadequacy in times of globalisation, both do not reject human rights completely but suggest how the way forward can be envisaged. Finally, some areas where human rights today are called to act as power-limiting devices are entirely new either in a sense that human rights a called to address new actors such as business corporations (Chapter 8) or they arise in new contexts and through new channels (Chapter 9).

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The contributors take a very broad and general understanding of globalisation that highlights intensified interconnections and exchange. The volume does not take any stance on the discussion of the globalisation itself except this very general premise. In this sense the volume is perhaps an easy target for those who criticize a poor conceptualisation of globalisation.4 However, tackling the conceptual fuzziness of globalisation would require a distinct volume. Therefore, in order to ensure a degree of precision when talking about globalisation, each of the contributors clarifies precisely how the globalisation process alters the traditional operation of the field within which the particular contribution is situated and what new challenges it brings to the operation of human rights in this field. The ways power is exercised today at the global level seems to be qualitatively different, demanding new responses from international law and other relevant disciplines. In particular, it seems that today the exercise of power at the global level is less controllable, less subject to traditional restraints and checks than some decades ago. Global governance, international or global constitutionalism, legal pluralism are terms indicating some of the ways developed in the scholarship to comprehend, analyse and respond to challenges posed by the contemporary forms of exercise of power at the global level. This volume does not privilege any particular approach to the question of power and contributors were free to either specify their own perspective on the question of power at the global level or simply proceed through an analysis of the power dynamics in their particular area. Human rights are featured prominently in the Western thought as hallmarks of protection of individuals against the arbitrary exercise of power. Historically, they first emerged as constitutional guarantees within domestic orders of particular states. This model of articulating specific rights as guarantees of individual freedom and protection first of all against the state then was transposed to the international level.5 Human rights form today a core of any 4 As Anthony Giddens stated: ‘there are few terms that we use so frequently but which are in fact so poorly conceptualized as globalization.’ (Anthony Giddens, Keynote address at a United Nations Institute of Social Development (unrisd) conference ‘Globalization and Citizenship’ 9–11 December 1996 as quoted in: unrisd, Globalization and Citizenship: Report of the unrisd International Conference, Geneva, 9–11 December 1996 (1996) 6 available at http:// www.unrisd.org/unrisd/website/document.nsf/(httpPublications)/FFCD6CBCDF88D089C1 256EAD00438AEB?OpenDocument (last visited 20 April 2017)). However, if globalisation is such a multifaceted and difficult to grasp phenomenon, defining it too precisely and thus too narrowly for the purposes of this volume would be counterproductive. 5 The influence of the us and its constitutional experience on the formulation of international human rights is particularly prominent. See e.g. Louis Henkin, ‘Constitutionalism and

Introduction

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Western constitutional order. However, the role of international human rights as mechanisms for controlling exercise of power at the global level is articulated unevenly. In particular, the main theme of the volume, namely the role of human rights as power-taming devices under the conditions of globalisation is hardly ever addressed. Even when such attempts are made, the enduring framework of the state often impedes emergence of new insights.6 The volume aims at providing a detailed account of the place of human rights as powertaming devices at the global level. Instead of assuming that human rights are a proof of the possibility to control power at the global level, the volume examines this premise from a variety of perspectives. Due to the complexity of the issues involved, in the first place due to the complexity and diversity of fields within which human rights operate today, it is not possible to provide a full and detailed picture. However, it is hoped that the contributions provide a representative selection of relevant areas and together provide a good foundation for thinking about the above-mentioned issues.

Structure and Contents

The book is organised in four parts that address each a particular site within which the dynamic of power-limiting function of human rights unfolds. Part 1 focuses on human rights themselves as a site where through definition and delimitation of particular rights battles for power unfold. The chapter ‘Indigenous Peoples’ Collective Self-Determination in the Age of Legal Globalisation’ by Ranjoo Herr deals with a relatively new area of human rights – indigenous peoples’ rights. The approach adopted is phislosophical and constrasts the traditional liberal vision of human rights as exemplified by the works of Allen Buchanan with the developments of indigenous peoples’ rights. The chapter argues that the liberal approach is inadequate for the globalised society. It offers some thoughts on the alternative approach to human rights that is better able to respond to interconnected diversity brought about by globalisation. The contribution by Dustin Sharp ‘Re-Appraising the Significance of “ThirdGeneration” Rights in a Globalised World’ demonstrates how through the ­Human Rights.’ In Louis Henkin & Albert J Rosenthal (eds) Constitutionalism and Rights. The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990) 383, 384. 6 See for example the criticism by Teubner that in addressing human rights violations by transnational private actors the current response remain fixated on states: Gunther Teubner, Constitutional Fragments (Oxford: Oxford University Press, 2012) 12.

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d­ iscussion of third generation rights human rights can either strengthen their legitimacy as a global project or continue to be utilised by powerful actors to legitimise their activities. In suggesting a way forward he particularly emphasises the need to redefine the notion of the duty-bearer in order to respond to the realities of a more interconnected world that requires a heightened degree of solidarity. Part 2 of the book focuses on areas that still deal with the traditional power of states. However, even when encountering the traditional power of states that human rights were designed to limit and control from the beginning, ­human rights have to encounter new phenomena and have to address the power of states in different ways as contributions in this part demonstrate. The first chapter in this part ‘Sovereignty as Responsibility at the International Criminal Court: The Frontiers of International Judicial Intervention’ by Emanuela Koskimies revisits the relationship between human rights and the classical notion of sovereignty. While human rights were always called to limit state sovereignty, the increased interconnection brought about globalisation was arguably even called to redefine sovereignty as responsibility towards each and every human being. The chapter tests this assumption within the context of the activities of the International Criminal Court. The conclusions of the chapter are rather skeptical in the sense that according to the analysis performed any institutionalisation of sovereignty as responsibility loses parts of its ability to limit power. The examination of the power-limiting role of human rights in a traditionally state-dominated context continues in the chapter by Patrycja Grzebyk ‘Taming the Way of Conducting Hostilities in Times of Global Conflict’. However, in the context of hostilities the impact of globalisation is different. The field of law that was traditionally designed to deal with inter-state hostilities has to respond to the changing nature of the armed conflict and diversification of its actors. In this context human rights law is called to re-discover its powerlimiting force according to the author of this contribution. The final chapter in this part (‘Denizenship as a Basis for Compulsory Diplomatic Protection: Does Residence Security as a Human Right Restrict State Sovereignty?’ by Tomoko Yamashita) addresses the issue of diplomatic protection, a traditional domaine reservé of states. However, under the conditions of globalisation with changing lifestyle of many persons the continuing operation of diplomatic p ­ rotection as a privilege of states creates unjust situations for many groups of people. Therefore, using trends in human rights law this chapter argues for the reconceptualization of diplomatic protection as an obligation of states not tied to the notion of citizenship. Contributions in this part of the volume are less critical of human rights. It appears that in these more traditional areas human right conserve their power-limiting function even under the changing conditions of globalisation.

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The next part of the book focuses on an area of public international law that traditionally was not perceived as a playing field of human rights: the law of international organisations. One contribution focuses on a very specific continuously thorny issue of international law, namely the veto power of the permanent members of the un Security Council (‘The Gradual Normative Shift from “Veto as a Right” to “Veto as a Responsibility”: The Suez Crisis, the Syrian Conflict, and un Reform’ by Nao Seoka) while another one address a broader problem of responsibility of international organisations for human rights violations (‘International Organisations and the Pluralist International System: Threatening the Role of Human Rights?’ by Scarlett McArdle). Both chapters demonstrate that in this area that human rights were not designed to address, globalisation only exacerbates the difficulties of human rights operation. The historical account of the discussions surrounding the exercise of the veto power demonstrates that contemporary discussions about the need to condition the exercise of veto power by human rights considerations are not entirely new. However, the intensity of the debate certainly heightened. Human rights also feature more prominently in various proposals aimed at reforming the exercise of the veto power. Nevertheless, the success of these efforts at reorienting the exercise of veto not as a right but as a responsibility remains to be seen which in turn suggests that human rights have limited power-taming potential in this area, if at all. The issue of responsibility of international organisations for human rights violations demonstrates the same pattern: international organisations and various actors becoming more active at the global level, the law is still not able to respond to this diversification. In fact, the chapter argues that the law is still largely based on the model of the sovereign state, even when addressing new actors. Therefore, it is not only unable to respond to evolving new challenges posed by globalisation, but can even jeopardise the few existing achievements with regard to human rights. This rather pessimistic outlook is not shared by the contributions to the final part of the volume. The final part of the book deals with areas and patterns of human rights invocation that are qualitatively different from both traditional international law areas and traditional problems addressed by human rights. Most importantly, while human rights are traditionally regarded as a branch of international law and thus operating above the domestic sphere of states, the contributions in the final part argue for specific form of human rights uses within the domestic sphere that then is expected to produce impact globally. The chapter ‘The Bounds of (Il)legality: Rethinking the Regulation of Transnational Corporate Wrongs’ by Valentina Azarova examines ­particular ways in which domestic regulation of of overseas business activities can not only remedy the existing weaknesses of business and human rights framework but also provide a model for ensuring a better respect for human rights standards in a more

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diversified globalisied world. The main mechanism proposed in this chapter is founded on turning international human rights law standards into internalised regulatory imperatives at the domestic level. The chapter ‘Imagining People’s Tribunals as the Promoter of Human Rights’ by Regina Paulose also locates the mechanism for ensuring respect for and promoting human rights at the domestic level. However, in this case the proposed mechanism: people’s tribunals are located outside the domestic legal system. Although they activate domestic political and social processes that then have impact on the respect for human rights globally, they intentionally avoid the formal juridical procedures and legal constraints imposed be state-regulated frameworks. Conclusions The following preliminary conclusions can be drawn from analyses performed in this volume. First of all and most importantly, despite all scpetisism and critisism expressed in many contributions as to the ability of human rights to fulfil their power-limiting function under the conditions of globalisation, no contribution went so far as to declare the end or even the nearing end of human rights. Some contributions even view human rights as a tool that can limit the power expanding in areas that traditionally were regulated by other branches of law (for example, Chapters 4 and 5) or in new emerging areas of concern where previously international law did not reach out (Chapter 8 and 9). Thus, they argue that human rights can discover a new power-limiting potential under the conditions of globalisation. On the other hand, those contributions that acknowledge the inability of human rights to respond to new challenges arising out of the conditions of globalisation do not for that reason dismiss human rights (Chapters 1 and 2). They emphasise that human rights in their traditional form are an inadequate mechanism. However, if appropriately rethought and reformed human rights can according to authors of these chapters stand up to the challenges posed by globalisation. Finally, in the last group of contributions the diagnosis is rather uncertain. More than anything they highlight how various developments taking place within the respective areas discussed make the task of human rights more difficult. For instance ­Chapters 3 and 7 demonstrate that the political dynamics have to be taken into account for human rights to be ever abale to fulfill their promise. Chapter 6 expresses a broader skeptisism regarding the ability of international law as a state-­centred system to respond to new challenges arising out of the pluralism brought about by globalisation. In this context the fate of human rights as a

Introduction

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branch of international law remains bound to the ability of international law to overcome its state-centrism. The second conclusion that is closely linked to the first is the clearly emerging need to rethink the mechanism and functioning of human rights. As already mentioned several contributions argue for such a new model of human rights and even suggest what needs for human rights to aquire a stronger and a more persuasive power-limiting role in a globalised world. However, these proposals are restricted to the particular areas within which they are ­formulated. A broad effort of thinking systematically about the functioning of human rights under different conditions is also required.7 Another conclusion relates to the nature of power that is unfolding at the global level. If traditionally human rights are designed to constrain the power of states as the most powerful actors at the international arena, various contributions in this volume reveal that power which can affect individuals is ­generated by a variety of actros, in a variety of sectors and in different forms. Therefore, if human rights are to retain any significance as power-limiting devices in times of globalisation, they need to adapt to different forms and sites of power. This relationship between human rights and different forms and sites of power needs to be investigated and comprehended in more detail and more systematically. Contemporary conditions, whether called globalisation or not, generate new needs and new challenges in terms of human rights protection. In order to respond to these new needs and challenges efficiently, there is a need to acquire a deeper and more detailed understanding of the impact of these new conditions on the functioning of human rights. This should be followed by an effort at formulating reform and rethinking proposal that will enable human rights to fulfil their role more efficiently under these changing conditions. Bibliography Duzinas, Costas, The End of Human Rights (London: Bloomsbury, 2000). Henkin, Louis, ‘Constitutionalism and Human Rights.’ In Louis Henkin & Albert J Rosenthal (eds) Constitutionalism and Rights. The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990) 383. 7 The editor of this volume proposes one such broad and more systematic vision of human rights in Ekaterina Yahyaoui Krivenko, Rethinking Human Rights and Global Constitutionalism: From Inclusion to Belonging (Cambridge: Cambridge University Press, 2017).

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Hopgood, Stephen, The Endtimes of Human Rights (Ithaca and London: Cornell University Press, 2013). Posner, Eric A., The Twilight of Human Rights Law (Oxford: Oxford University Press, 2014). Sassen, Saskia, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton and Oxford: Princeton University Press, 2006). Scholter, Aart, Jan Aart, Globalization: A Critical Introduction, 2nd ed (New York: Palgrave Macmillan, 2005). Teubner, Gunther, Constitutional Fragments (Oxford: Oxford University Press, 2012). UNRISD, Globalization and Citizenship: Report of the UNRISD International Conference, Geneva, 9–11 December 1996 (1996). Yahyaoui Krivenko, Ekaterina, Rethinking Human Rights and Global Constitutionalism: From Inclusion to Belonging (Cambridge: Cambridge University Press, 2017).

Part 1 Human Rights in Times of Globalisation: A Panacea?

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Chapter 1

Indigenous Peoples’ Collective Self-determination in the Age of Legal Globalisation Ranjoo Seodu Herr Abstract This article considers whether the international legal human rights system founded on liberal individualism, as endorsed by liberal theorists, can function as a fair universal legal regime. This question is examined in relation to the collective right to self-­determination demanded by indigenous peoples, who are paradigmatic decent nonliberal peoples. Indigenous peoples’ collective right to self-determination has been internationally recognized in the Declaration on the Rights of Indigenous Peoples, which was adopted by the United Nations in 2007. This historic event may seem to exemplify the international legal human rights system’s ability to function as a truly global legal regime applicable cross-culturally to all well-ordered societies, whether liberal or nonliberal. The article argues, however, that the collective right to self-­determination advocated by indigenous peoples for the sake of cultural integrity is inconsistent with the international legal human rights system founded on liberal individualism. By showing the plausibility of indigenous peoples’ defense of their cultural integrity, this article suggests that the international legal human rights system ought to be reconceptualized to reflect a genuine international consensus on human rights among all well-­ordered societies if it is to function as a just mechanism for global governance.

Keywords Collective right to self-determination – cultural integrity – decent nonliberal peoples – group agents – indigenous peoples – international legal human rights system – Allen Buchanan – Declaration on the Rights of Indigenous Peoples

* Ranjoo Seodu Herr, Bentley University, 175 Forest Street, Waltham, ma 02452–4705, usa. Email: [email protected].

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Globalisation1 has become the dominant reality of the contemporary world. Global exchanges and networks in trade date back to the Ancient times of the Silk Road, but the process of globalisation has increasingly deepened and intensified since the modern era of European colonialism. The contemporary iteration of globalisation since the end of the Second World War is in many ways a continuation of what has been set in motion during the era of European colonialism. However, optimists about contemporary globalisation tend to view the end of the colonial era as signalling a new hopeful millennium in which all nation-states equal in their political status convene at the United Nations (un) and make genuinely collective decisions to promote world peace and justice. As beautiful and inspiring as this vision may be, it is, at least presently, wishful thinking. There are reasons to believe that the current world order is not substantially different from the colonial era. Some aspects of ­globalisation are more problematic than others. The economic aspect of globalisation as transnational capitalism, in particular, has often been criticised, rightly I believe, for its negative impact on ordinary citizens of not only Third World nation-states but increasingly also of liberal Western states, such as the u.s. The legal aspect of globalisation, predicated on the ‘international legal human rights system (ilhrs)’,2 seems to have been the least scrutinised. The ­i lhrs comprises un-based human rights law and its supporting institutions,3 at the heart of which is the Universal Declaration of Human Rights (udhr) adopted by the un in 1948.4 The udhr in itself is a resolution of the un General Assembly, which is not legally binding in itself. The udhr’s ‘international legal universality’ began to deepen substantially in the mid-1970s after the two i­nternational human rights Covenants were signed by member states.5 As of 2012, major international human rights treaties enjoy, on average, an 88% ­ratification rate.6 In comparison to Westphalian international law, which considered only states as international agents and completely disregarded ­individual rights, the ilhrs has been hailed as the global conscience

1 I follow Manfred Steger’s definition of globalisation as ‘a multidimensional set of social processes that create, multiply, stretch, and intensify worldwide social interdependencies and exchanges’ in Globalization (Oxford: Oxford University Press, 2003) 13. 2 Allen Buchanan, The Heart of Human Rights (Oxford: Oxford University Press, 2013). 3 Ibid, 6. 4 udhr, 10 Dec 1948, ga Res 217A (iii). 5 Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 2013) 95. International Covenant on Civil and Political Rights (iccpr), 16 Dec 1966, 999 unts 171, International Covenant on Economic, Social and Cultural Rights (icescr), 16 Dec 1966, 993 unts 3. 6 Donnelly (n 5) 94.

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and ­become a powerful engine of legal globalisation. Premised on the idea that legal globalisation is moral progress, innumerable human rights Nongovernmental Organisations (ngos) have been created and are operating both in the liberal West and the Third World, employing a staggering number of human rights activists, in order to hold state parties to the human right treaties accountable. Given the immense global influence of the ilhrs, it is necessary to examine whether the ilhrs is adequate as a just mechanism for global governance. This article will consider this very important question by examining in particular the relation between the ilhrs and indigenous peoples’ right to self-­ determination. This relation may be examined in a number of ways: One way may be descriptive, involving a careful look at the existent declarations, covenants, and conventions of the ilhrs relevant to indigenous peoples’ rights and their applications in practice, and then uncovering inconsistencies, inadequacies, or adverse consequences. As worthwhile as it may be, this article does not take this approach. Rather, this article will proceed by first determining the ilhrs’ normative foundation and then considering whether it is compatible with the conception of the right to self-determination advocated by indigenous peoples themselves.7 This normative analysis would call for a considerable reconstruction, since much of un documents on human rights and their applications lack consistency, as they result from negotiations and compromise at the un in order to secure maximum consensus. The normative approach, however, has been favored by prominent political philosophers who have proposed different constructions of the ilhrs’ normative foundation,8 and I will follow in their footsteps. While these philosophers have various disagreements among themselves,9 a major consensus is that the ilhrs is at its base liberal individualist.10 The view that the ilhrs has a liberal 7

8

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10

I will focus on the claims of indigenous peoples in the North American context for the sake of focus. The discussion provided here, however, may be applicable to other indigenous peoples’ situations. Charles Beitz, ‘Human Rights as a Common Concern’ (2001) 95 American Political Science Review 269; Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009); Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004); James D. Griffin, On Human Rights (Oxford: Oxford University Press, 2008). One of the most recent disagreements concerns whether to view the normative foundation of ilhrs as ‘political’ or ‘naturalistic’. See, S. Matthew Liao and Adam Etinson, ‘Political and Naturalistic Conceptions of Human Rights: A False Polemic?’ (2012) 9 Journal of Moral Philosophy 327. One exception among liberal theorists of human rights is Joseph Raz (Joseph Raz, ‘Human Rights Without Foundations’ in Samantha Besson and J. Tasioulas (eds) The ­Philosophy

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individualist foundation is consistent with what many consider to be the evaluative core of the ilhrs, namely the udhr;11 the ilhrs is centered around the udhr that endorses the ‘inherent dignity’ and ‘the equal and inalienable rights’ of ‘all members of the human family’ primarily understood as human individuals.12 In examining the ilhrs’s normative foundation, I will focus in particular on Allen Buchanan’s liberal political philosophy of international law.13 Two reasons can be adduced in support of this choice: First, Buchanan’s theory has been considered ‘an enormously valuable contribution’14 to the field by liberal theorists and, second, Buchanan, in contrast to other liberal theorists, is in favor of legalising indigenous peoples’ right to self-determination within the ilhrs. These two reasons combined render Buchanan’s position particularly suited for analysing whether the liberal individualist ilhrs would provide an appropriate framework for incorporating indigenous peoples’ right to self-determination. Some people may argue that the answer to this question is a clear ‘Yes’ by citing as evidence the 2007 un adoption of the Declaration on the Rights of Indigenous Peoples (drip) in which indigenous peoples’ right to self-­determination is centrally placed.15 Indeed, some claim that the un adoption of the drip is

11

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of International Law (Oxford; New York: Oxford University Press, 2010) 321), who rejects liberal ‘individualism’ (Joseph Raz, The Morality of Freedom (New York: Clarendon Press, 1986). Buchanan (n 8); Griffin (n 8 8); Beitz, The Idea (n 8); Donnelly (n 5). In his more recent work, Buchanan (n 2) again takes the udhr as the most significant among the ‘set of documents that contain canonical formulations of rights’ that constitute the ilhrs (Ibid, 6). Buchanan includes in this set the icescr, perhaps because the icescr is the first human rights ‘covenant’ (Ward Churchill, ‘A Travesty of a Mockery of a Sham: ­Colonialism as “Self-determination” in the un Declaration on the Rights of Indigenous Peoples’ (2011) 20 Griffith Law Review 526, 533) to state that ‘All peoples have the right of self-determination’ (Art 1(1)). What is puzzling, however, is that Buchanan does not include the Declaration on the Rights of Indigenous Peoples (drip, 13 Sept 2007, A/Res/ 61.295) in the set, although the un’s adoption of the drip predates Buchanan’s publication of the book by 6 years. His exclusion of the drip remains unexplained in the book. udhr (n 4), Preamble. As developed in two works: Buchanan (n 2) and (n 8). Michael Blake, ‘Book Review: Allen Buchanan, Justice, Legitimacy, and Self-determination.’ (2008) 118 Ethics 721, 722. S. James Anaya, ‘The Right of Indigenous Peoples to Self-determination in the Post-­ declaration Era’ in Claire Charters and Rodolfo Stavenhagen (eds) Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen: International Work Group for Indigenous Affairs, 2009) 184; Erica-Irene Daes, ‘The un Declaration on the Rights of Indigenous Peoples: Background and Appraisal’ in Stephen

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‘a major victory’ for indigenous peoples across the globe.16 The aim of this ­article to examine the relation between the ilhrs’s normative foundation and indigenous peoples’ right to self-determination, then, may seem redundant or futile. Yet, many indigenous scholars have argued that the drip as an instrument for enabling indigenous collective self-determination has been severely declawed17 from its 1994 Draft drip (Draft) by the Working Group on Indigenous Populations (wgip), which was endorsed by the representatives of indigenous peoples. The Commission on Human Rights had rejected the Draft because of the opposition from the Western settler states – the United States, Canada, Australia, and New Zealand.18 The Draft was back on the drawing board and the redrafting was assigned to a new Working Group on the Draft Declaration (wgdd), which took over 10 years to complete. According to Charmaine White Face, the redrafting process was marred by politics and has resulted in a document, the drip, which indigenous peoples themselves do not approve, as it is only a pale shadow of the 1994 Draft.19 Furthermore, despite the claim that the rights of indigenous peoples, including the right to self-determination, are ‘at bottom human rights or at least are derived from, or instrumental to, human rights’,20 the relation between the liberal individualist foundation of the ilhrs and indigenous peoples’ collective right to self-determination is contradictory, as I shall argue in this article. If this is the case, then the future of indigenous peoples’ self-determination is far from clear, the official un recognition of the collective right to self-­ determination in the drip notwithstanding.21 Given their contradictory relation, the progress toward indigenous self-determination may be hampered by the ilhrs itself. Under these circumstances, I believe that a critical conceptual

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20 21

Allen and Alexandra Xanthaki (eds) Reflections on the un Declaration on the Rights of Indigenous Peoples (London: Bloomsbury Publishing, 2011) 11; Ronald Niezen, ‘Recognizing Indigenism: Canadian Unity and the International Movement of Indigenous Peoples’ (2000) 42 Comparative Studies in Society and History 119. Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ in Stephen Allen and Alexandra Xanthaki (eds) Reflections on the un Declaration on the Rights of Indigenous Peoples (London: Bloomsbury Publishing, 2011) 183, 183. See Art 4 and 46(1) drip. Churchill (n 11) 544 ff. Charmaine White Face, Indigenous Nations’ Rights in the Balance: An Analysis of the Declaration on the Rights of Indigenous Peoples (St Paul, mn: Living Justice Press, 2013) Introduction. Anaya (n 15) 187. Corntassel (2012) discusses difficulties in implementing indigenous rights several years after the un adoption of the drip.

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analysis of this relation is urgently called for. This article aims to provide just that. The article will proceed as follows. Section i provides an overview of ­Buchanan’s ‘moral individualist’ justification of the ilhrs22 and the ways in which it supports indigenous peoples’ ‘legal’ right to self-determination. ­Section ii examines Buchanan’s rejection of indigenous peoples’ own rationale for the collective right to self-determination – cultural integrity. Although Buchanan’s main reason for the rejection is a ‘fundamental conflict of values between respect for cultural preservation and respect for individual human rights’,23 it remains unexplained. I therefore reconstruct Buchanan’s fuller argument for the rejection by extrapolating from his critique of John Rawls’ ‘decent nonliberal peoples,’24 as indigenous peoples are paradigmatic decent nonliberal peoples; a key hidden premise that supports Buchanan’s conclusion that respecting indigenous cultural integrity ultimately clashes with respecting individual human rights is identified as his presumption that indigenous cultures, as instances of decent nonliberal culture, are ‘very deeply and arbitrarily inegalitarian’.25 In Section iii, I contrast Buchanan’s essentialist conception of nonliberal cultures with indigenous peoples’ own conception of their cultures as complex, porous, and evolving, and argue that the latter allows for conceptualising the internal aspect of collective self-determination as democracy, broadly understood. I then develop, in Section iv, a defense of indigenous peoples’ moral collective right to self-determination, which would entitle them to protect and promote their cultural integrity. I conclude by suggesting an alternative global legal system of human rights to the ilhrs, which may serve as an impartial arbiter of justice for all well-ordered peoples demanding their collective right to self-determination. i

Buchanan on Indigenous Peoples’ Right to Self-determination

In his recent book, The Heart of Human Rights (2013), Allen Buchanan attempts to provide a normative justification for the ilhrs, which ought to serve as ‘a moral standard that can be employed for political mobilization to change the behavior of states, corporations, and other agents, even in cases where it does

22 23 24 25

Buchanan (n 2) 12. Buchanan (n 8) 422. John Rawls, The Law of Peoples (Cambridge, ma: Harvard University Press, 1999). Buchanan (n 8) 164.

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not impose clear legal duties on them.’26 Buchanan argues that limiting sovereignty of states for the ‘sake of individuals themselves’ is one of the ‘key features’ of the ilhrs.27 His reason is that the ‘primary function’ of the ilhrs is to ‘provide universal standards for regulating the behavior of states toward those under their jurisdiction, for the sake of those individuals themselves’,28 as it is robustly committed to ‘affirming and protecting the equal basic moral status of all individuals.’ Buchanan calls this the ‘status egalitarian function’ of the ilhrs.29 What justifies the status egalitarian function of the ilhrs? A philosophical justification can be found in Buchanan’s influential book, Justice, Legitimacy, and Self-Determination, in which he argues for a branch of ‘moral individualism’ that is ‘individualistic’ in a ‘justificatory’ sense.30 The fundamental moral principle in his ‘justificatory individualism’ is the ‘Moral Equality Principle’ predicated on a Kantian premise that ‘all persons are entitled to equal respect and concern’ and that ‘each is to be treated as an end.’31 This is what it means for Buchanan to treat persons ‘justly,’ which is in turn identified as ‘helping to make sure that their basic human rights are not violated’.32 ‘Basic human rights’ are defined as rights that, ‘if respected, protect those interests that are most crucial for having a good human life.’33 Basic human rights at the heart of Buchanan’s principles of justice echo human rights enumerated in the udhr and include the right to freedom from religious persecution and against at least the more damaging and systematic forms of religious discrimination; the right to freedom of expression; the right to association; and the right against persecution and against at least the more damaging and systematic forms of discrimination on grounds of ethnicity, race, gender, or sexual preference.34 Since only just institutions, including legal ones, can help ensure that all persons are treated justly, Buchanan derives the fundamental but ‘limited’ moral obligation, which he calls the ‘Natural Duty to Justice’ to ‘help ensure that all 26 Buchanan (n 2) 26, emphasis added. 27 Ibid, 23. 28 Ibid, 27 emphasis in the original. 29 Ibid, 28 emphasis in the original. 30 Buchanan (n 8) 413, emphasis in the original. 31 Ibid, 87. 32 Buchanan (n 8) 87. 33 Ibid 129. 34 Ibid.

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persons have access to institutions, including legal institutions, that protect these basic human rights.’35 This means that ‘all justifications for ascriptions of moral and legal rights (and duties) must be grounded ultimately on consideration of the well-being and freedom of individuals.’36 Accordingly, states have ‘legal duties’ that correspond to ‘individual international legal rights’ of those under their jurisdiction. In case a particular state is unable or unwilling to fulfill these duties, then ‘other states may have some sort of responsibility to achieve their fulfillment’.37 The ilhrs, then, has an ‘interference-justifying role’38 vis-à-vis not only noncomplying states, but also noncomplying nonstate collectivities, such as nations/peoples39 without a state.40 Consequently, the ilhrs has the authority to transform the world, as it may ‘require creating new institutions’ or ‘reforming existing institutions’ in noncomplying – or nonliberal – states or nations/peoples in order to ensure that individuals in such collectivities have ‘access to institutions that protect their basic human rights.’41 Given Buchanan’s moral individualist framework, his support for the indigenous claim to self-determination is surprising. Liberal theories based on ‘methodological individualism,’42 of which justificatory individualism is an example, are typically averse to indigenous demands for self-­determination.43 Yet, Buchanan is sympathetic to the ‘need to honor the valid claims of indigenous ­peoples to rectification of past injustices and their continuing­ 35 36 37 38 39

40

41 42

43

Ibid, 74. Ibid, 413, emphasis added. Buchanan (n 2) 24. Beitz, ‘Human Rights’ (n 8) 273. Nation, in this sense, does not refer to the ‘statist’ nation, which is primarily a territorialpolitical unit, but rather to the ‘ethnicist’ nation, which is predicated on a common descent and culture and is often used interchangeably with ‘people.’ See, Anthony D. Smith, Theories of Nationalism (New York: Holmes & Meier, 1983) 176–180. Although Buchanan focuses mostly on states in this discussion, I believe that the ilhrs’ interference-justifying role is applicable to other collectivities, such as nations/peoples without a state, which have political power over their members. This interpretation is not only consistent with Buchanan’s ‘justificatory individualism,’ but also with his position on ‘decent nonliberal peoples’ to be discussed below. Buchanan (n 8) 88. This view takes groups as epiphenomena completely reducible to their constitutive individuals (Raimo Tuomela, Social Ontology (New York: Oxford University Press, 2013) 10). For more, see Section iv. See Amy Gutmann, Identity in Democracy (Princeton, nj: Princeton University Press, 2003); Jeremy Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ (1992) 25 University of Michigan Journal of Law Reform 751.

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effects’44 and recognises that protecting indigenous peoples’ interests may provide the ‘strongest case for international legal support’ for the right to self-­determination.45 The right to self-determination only requires ‘an independent domain of political control’46 and not an independent state;47 it is ­therefore distinct from the right to secession that involves establishing a separate ‘legitimate state’.48 Buchanan favors granting certain sub-state political entities – for example, indigenous peoples – the right to self-determination, as this could obviate the risks associated with secession, such as violence and the oppression of new minorities.49 Buchanan is willing to grant the right to self-­ determination to indigenous peoples not only when principles of ­transnational justice are violated but also in order to promote ‘more efficient, more meaningful democratic participation,’ or to ‘better serve the interest of minorities’.50 Since the right to self-determination is often thought to belong to groups, Buchanan recognises that his sympathy for the self-determination of indigenous peoples may seem inconsistent with his moral individualism.51 He ­argues, however, that this seeming inconsistency can be resolved in his justificatory individualism. Buchanan recognises that groups or collectivities can be ‘real’ in that ‘not all the properties of groups can be reduced to the properties of individuals who are members of the groups’.52 Still he denies that group rights can be ‘ascribed primarily to groups’ or ‘possessed by groups’,53 since this idea is contradictory to the premise of justificatory individualism that ‘only individuals are moral subjects’.54 The right to self-determination, therefore, can be justified based solely on the idea of members’ individual interests. 44 45 46 47 48

49 50 51 52 53 54

Buchanan (n 8) 404. Ibid, 408. Ibid, 333. See Ibid, 401. Ibid, 334. Indeed, indigenous peoples make it clear that their demand for self-­ determination does not involve secession (S. James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 2004) 102–103, Anaya (n 15) 188; Niezen (n 15) 140–143). This is not to deny the ‘territorial’ nature of self-determination (Steven Wall, ‘Collective Rights and Individual Autonomy’ (2007) 117 Ethics 234; Christopher Wellman, ‘A Defense of Secession and Political Self-Determination’ (1995) 24 Philosophy and Public Affairs 142), but only to say that it does not require an independent state. Buchanan (n 8) 404. Ibid, 403. Ibid, 408. Ibid, fn 10, 413. Ibid, 411. Ibid, 414.

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While a ­justificatory individualist may refer to the interests of groups, it is only as ‘shorthand for the interests of the members of the group,’ including interests that individuals may have ‘only by virtue of being members of a group’.55 In other words, the notion of group interest is merely an aggregative interest derived from accumulating the members’ individual interests, and the idea of group right based on group interest is a mirage that lacks any moral basis. Therefore, the right to self-determination that Buchanan is willing to acknowledge is ‘legal’56 and is an application of his moral individualist framework. As such, the legal right to self-determination of indigenous peoples can be deployed primarily in order to protect individual human rights of their members. ii

Buchanan on Indigenous Peoples’ Defense of Cultural Integrity

Although Buchanan is sympathetic to indigenous peoples’ demand for the ‘group’ right to self-determination, he argues that it can be justified primarily for ‘intrastate autonomy’ as ‘self-government’,57 involving ‘an independent domain of political control.’58 Buchanan then considers another rationale for the collective right to self-determination, ‘cultural integrity’, invoked by indigenous peoples themselves;59 the ‘rights to “cultural integrity”’ may include ‘rights against interference with cultural activities’ as well as ‘rights to positive action by states to help indigenous peoples to not only preserve but also “strengthen” their cultures and determine the direction of their cultural development.’60 Buchanan, however, rejects cultural integrity as a rationale for the collective right to self-determination, because this may lead to a ‘fundamental conflict of values between respect for cultural preservation and respect for individual human rights, with no indication of how it might be resolved even in principle.’61 Buchanan’s rejection of indigenous cultural integrity is noteworthy, as it contradicts indigenous peoples’ own position on their collective right to 55 56

57 58 59 60 61

Ibid, 414–415. Ibid, 414; ‘Moral’ human rights have priority over ‘legal’ human rights in that their validity is ‘independent of any and all governmental bodies,’ while this is not the case for the latter (Thomas Pogge, ‘How Should Human Rights Be Conceived?’ in World Poverty and Human Rights:Cosmopolitan Responsibilities and Reforms (Malden, ma: Polity, 2002) 52–53). Buchanan (n 8) 409. Ibid, 333. See Glen S. Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis, mn: University of Minnesota Press, 2014) Chapter 2, in particular 71–72. Buchanan (n 8) 409. Ibid, 422.

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­self-determination.62 Cultural integrity has been constitutive of indigenous peoples’ justification for their collective right to self-determination.63 Not surprisingly, the drip – as unsatisfactory as it may be to many indigenous peoples – is ‘imbued with an affirmation of the cultural rights of indigenous peoples.’64 Most notably, indigenous peoples’ collective right to self-­determination is affirmed so that indigenous peoples, who have a right to ‘belong to an indigenous community or nation in accordance with the traditions and customs of the community or nation concerned’ (Article 9 drip), can ‘freely pursue their economic, social and cultural development’ (Article 3 drip), maintain and strengthen their ‘distinct’ cultural institutions (Article 5 drip), and ‘practise and revitalise their cultural traditions and customs’ (Article 11 drip); indigenous peoples’ ‘collective right’ would ensure them to ‘live in freedom, peace, and security as distinct peoples’ (Article 7 drip) without being ‘subjected to forced assimilation or destruction of their culture’ (Article 8 drip). The core value of collective freedom as a people to live in accordance with their own cultural ways reverberates throughout the drip (Articles 12, 13, 14, 15, 24, 31, 33, 34, 35). Given the adamance with which indigenous peoples have defended their cultural integrity, Buchanan’s rejection of their claim to cultural integrity calls for critical scrutiny, as he is in essence insisting that indigenous peoples’ own perspectives about their right to self-determination ought to be overridden in favour of his liberal conception of the indigenous ‘legal’ right to selfdetermination. Stakes are high for indigenous peoples on how this debate is resolved, as they are the most directly affected by the ilhrs’s determination of the nature and scope of their right to self-determination. Buchanan’s reason for rejecting indigenous cultural integrity is that there is an irresolvable ‘fundamental conflict of values between respect for cultural preservation and respect for individual human rights.’65 What would such a ‘fundamental conflict of values’ involve? Unfortunately, Buchanan does not elaborate on the nature 62

63 64 65

Jeff Corntassel, ‘Cultural Restoration in International Law: Pathways to Indigenous Selfdetermination’ (2012) 1 Canadian Journal of Human Rights 93; Johanna Gibson, ‘Community Rights to Culture: The un Declaration on the Rights of Indigenous Peoples’ in Steve Allen and Alexandra Xanthaki (eds) Reflections on the un Declaration on the Rights of Indigenous Peoples. (London: Bloomsbury Publishing, 2011) 433; Elsa Stamatopoulou, ‘Taking Cultural Rights Seriously: The Vision of the u.n. Declaration on the Rights of Indigenous Peoples’ in Steve Allen and Alexandra Xanthaki (eds) Reflections on the u.n. Declaration on the Rights of Indigenous Peoples (London: Bloomsbury Publishing, 2011) 387. Anaya (n 48) Chapter 4. Stamatopoulou (n 62) 388. Buchanan (n 8) 422.

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of the ­‘fundamental conflict.’ Given the importance of assessing Buchanan’s argument, I propose to reconstruct his argument by examining his critique of John Rawls’ ‘decent nonliberal peoples’, which provides important clues. In his last major work, The Law of Peoples (1999), Rawls argues against mainstream liberals who believe that liberal societies are the only legitimate societies. According to Rawls, there are at least two kinds of societies that can be considered ‘well-ordered’ and therefore legitimate, liberal societies/peoples and decent nonliberal peoples. Decent nonliberal peoples meet ‘two criteria’, one international and the other domestic: internationally, they are non-­ aggressive.66 Domestically, decent nonliberal peoples, although not perfectly just according to liberalism, are just according to their ‘common good idea of justice [that] assigns human rights to all [the] members.’67 Members of decent nonliberal peoples have ‘the capacity for moral learning and know the difference between right and wrong as understood in that society.’68 If so, decent nonliberal peoples are worthy of liberal toleration, as they, just as liberal peoples, ‘recognize certain basic principles of political justice as governing their conduct.’69 Liberal societies and decent nonliberal peoples, therefore, may coexist peacefully in a ‘realistic utopia’ in which the ‘gravest forms of political injustice are eliminated.’70 The debate about nonliberal decent peoples is relevant here, because indigenous peoples of North America offer paradigmatic examples of Rawls’ decent nonliberal peoples, although Rawls himself did not explicitly consider them as such. Most indigenous peoples in North America were matriarchal and had egalitarian cultures.71 The Iroquois League of the Northeast in 66 67

68 69 70 71

Rawls (n 24) 64. It is important to note that, according to Rawls, the conception of human rights honored by decent nonliberal peoples represents a minimalist conception of human rights. As such, they are not the human rights incorporated in the udhr, and a fortiori the ilhrs. Rather, they ‘express a special class of urgent rights’ acceptable to both well-ordered societies with divergent traditions and cultures (Ibid, 79). Ibid, 1999, 66, emphasis added. Ibid, 32. Ibid, 7. Kim Anderson, A Recognition of Being: Reconstructing Native Womanhood (Toronto, on, Canada: Sumach Press, 2000); Annette Jaimes and Theresa Halsey, ‘American Indian Women: At the Center of Indigenous Resistance’ in Aamir Mufti, Anne McClintock and Ella Shohat (eds) Dangerous Liaisons: Gender, Nation, and Postcolonial Perspectives (Minneapolis, mn: University of Minnesota Press, 1997) 298; Mary Ellen Turpel, ‘Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences’ (1989) 3 Canadian Journal of Human Rights 3.

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­ articular ­exemplifies egalitarian and even ‘democratic’ indigenous culture p most ­prominently. The Iroquois League comprised six indigenous nations of the Northeast – the Mohawks, Oneidas, Onondagas, Cayugas, Senecas, and Tuscaroras – ­related to one another in language and ancestry. The League, well established by 1500, was formed in order to stop warfare among them, and all six nations agreed on the ‘Great Law of Peace,’ the overarching values of which were ‘peace, brotherhood, unity, a balance of power, the natural rights of all people, and sharing of resources’.72 Domestically, members of the six Iroquois peoples loved ‘equality’ and ‘liberty’73 and acknowledged ‘basic rights’ of members.74 The expression of ‘public opinion and debate’ was encouraged and disputes were solved ‘by giving all parties an equal hearing’.75 Most importantly, each nation had a form of ‘counselor democracy’76 in which the ‘authority and power’ of chiefs rested upon ‘the consent of the governed’.77 Although these traditional values and institutions have been considerably disrupted and weakened during centuries of European colonialism, members of contemporary indigenous peoples are insisting on their collective right to self-­determination precisely to revive such cultural values and institutions.78 Buchanan, however, while posing as a defender of indigenous peoples’ right to self-determination, viciously attacks Rawls’ call for the liberal toleration of decent nonliberal peoples, claiming that decent nonliberal peoples’ ‘common good conception of justice’ is ‘very deeply and arbitrarily inegalitarian’.79 Buchanan agrees with Rawls that members of decent nonliberal peoples may be ‘reasonable’, as they may not only ‘acknowledge the burdens of judgment’ but also ‘accept fair terms of cooperation’.80 Yet, according to Buchanan, being ‘reasonable’ in this sense and engaging in reasoning that is ‘coherent, consistent, sincere, and yields a conception of public order in which everyone’s good 72

Donald A. Grinde Jr and Bruce Johansen, Exemplar of Liberty: Native America and the Evolution of Democracy (Los Angeles, ca: American Indian Studies Center, University of California, 1991) 29 emphasis added. 73 Ibid, 12, 14, 15. 74 Ibid, 31. 75 Ibid. 76 Ibid, 12. 77 Ibid, 32. 78 Gerald R. Alfred, Heeding the Voices of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Toronto, on, Canada; New York: Oxford University Press, 1995); Gerald R. Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (New York: Oxford University Press, 2009). 79 Buchanan (n 8) 164. 80 Ibid, 162, see also 166.

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is to count’81 is not enough to render a person worthy of respect.82 The reason is that ‘the reasonableness criterion’ would allow members of nonliberal cultures to accept conceptions of justice that are ‘very deeply and arbitrarily inegalitarian’83 compatible with ‘extreme inequalities that are morally arbitrary and indefensible.’84 Buchanan claims in particular that Rawls’ idea of the common good conception of justice is ‘compatible with systematic discrimination against religious minorities in both the private and the public sphere.’85 Therefore, according to Buchanan, even reasonable persons in decent nonliberal societies would accept ‘unsupported generalizations about the nature of blacks, women, or untouchables.’86 Members of a decent nonliberal people would support ‘a permanent, hereditary caste’ or systemic gender oppression in which women are denied the opportunity for an education, are excluded from political participation (except by being represented in a ‘consultation hierarchy’) and from economic positions, and are not allowed to go outside the home except under highly restrictive conditions.87 In decent nonliberal societies, women’s treatment would be ‘so inadequate that it is compatible with some of the severe inequalities that reportedly existed in Taliban society.’88 Furthermore, those who are socially subjugated, such as ‘women or untouchables or blacks’, would accept their subjugated status without complaint or resistance.89 The reason, according to Buchanan, is that they may be ‘brainwashed into submissiveness by being acculturated within a sexist framework of social institutions and practices.’90 Consequently, ­Buchanan alleges, Rawls’ decent nonliberal peoples are ‘indefensibly inegalitarian’ on a par with the Taliban regime in Afghanistan that brutally subjugates women.91

81 Ibid, 173. 82 Ibid, 167. 83 Ibid, 164. 84 Ibid. 85 Ibid, 165. 86 Ibid, 173. 87 Ibid, 160–161. 88 Ibid, 170. 89 Ibid. 90 Ibid, 170, emphasis added. 91 Ibid, 169.

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Reconceptualising Culture

As damning as Buchanan’s claim and ‘evidence’ against nonliberal peoples may seem, they simply lack any empirical backing. Buchanan accuses Rawls’ account of decent nonliberal peoples of ‘a combination of extraordinarily sloppy reasoning and patently false empirical premises.’92 Ironically, this accusation applies to Buchanan’s own critique of Rawls’ account: Not only does it involve uncharitable misinterpretations of Rawls’ position but also exemplifies ‘patently false empirical premises.’ Regarding the first point, it is puzzling how Buchanan can claim that reasonable persons would accept conceptions of justice compatible with ‘extreme inequalities that are morally arbitrary and indefensible’,93 given Rawls’ rigorous explication of the idea of reasonableness elsewhere.94 Regarding the second point, Buchanan presumes without evidence that decent nonliberal peoples’ social structures would be egregiously unjust much like those of the Taliban or the South African Apartheid regime. If Buchanan had instead engaged in due empirical research about peoples and nations, both historical and contemporary, which would satisfy conditions of Rawls’ decent nonliberal peoples, he would have soon realised that indigenous peoples before the European conquest and colonialism are paradigmatic examples of decent nonliberal peoples. Rather than being ‘very deeply and arbitrarily inegalitarian’, most indigenous cultures were far superior to Western cultures of the same era in gender equity; indigenous women, while recognised as different from men due to the fact that they have reproductive capacities, had an elevated social status,95 as their ‘innate power to bring forth life’ was revered in most indigenous communities.96 If indigenous peoples are prime examples of Rawls’ decent nonliberal peoples, as I have argued, then Buchanan’s sympathy toward the indigenous right to self-determination is doubly problematic: First, given his uncharitable portrayal of decent nonliberal peoples and his assertion that they do not deserve liberal toleration, it is unclear how Buchanan can justify his claim that indigenous peoples ought to have a right – albeit ‘legal’ – to self-determination. Let us suppose, for the sake of the argument, that we can somehow make sense of Buchanan’s incoherent position and concede that indigenous peoples deserve a ‘legal’ right to self-determination. We are still confronted with a more serious 92 93 94 95 96

Ibid, 167. Ibid, 165. John Rawls, Political Liberalism (New York: Columbia University Press, 1993) 54–56. Turpel (n 71) 180. Anderson (n 71) 83.

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second problem: Since Buchanan rejects cultural integrity as the foundation on which indigenous peoples can build their defense of their collective right to self-determination, he contradicts indigenous peoples’ own position that cultural integrity is at the heart of their demand for collective self-determination. Buchanan’s ‘sympathy’ toward indigenous peoples’ right to self-determination, then, is at best empty and at worst an affront to the dignity of indigenous peoples who deserve to have their perspectives respected by the international community. According to indigenous scholars, ‘traditional indigenous cultural values’ are ‘at the core of [indigenous peoples’] struggles for self-determination’.97 Not only are indigenous peoples defined in terms of culture,98 their demand for collective self-determination is explicitly made in the name of culture, whether for ‘indigenous [cultural] authenticity’,99 ‘cultural integrity’,100 preserving cultural identity,101 or ‘cultural recognition’.102 Having been subjected to ‘cultural genocide’103 and still living under the conditions of cultural imperialism of the dominant liberal society, members of indigenous peoples demand their collective right to self-determination so that they as a people can ‘freely determine their political status and freely pursue their economic, social and cultural development.’ (Article 3, drip). The regeneration of indigenous communities must be predicated on ‘culturally sound strategies’ reflecting ‘the clearest and most useful insights’ emerging from their ‘lived collective and individual experiences as Indigenous peoples.’104 Hence, members of indigenous peoples argue that ‘self-determination for us means self-determination within our own cultural definitions and through our own cultural ways’;105 ‘We ask only to be

97 Alfred, Peace (n 78) 15; see also Coulthard (n 59) Chapter 2. 98 Brysk as cited in Jeff Corntassel, ‘Who is Indigenous? “Peoplehood” and Ethnonationalist Approaches to Rearticulating Indigenous Identity’ (2003) 9 Nationalism and Ethnic Politics 75, 78, en 18. 99 Alfred, Peace (n 78) 6. 100 Anaya (n 15). 101 Niezen (n 15) 129. 102 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995) 3–4. 103 Art 7, Draft (n 17). 104 Taiaiake Alfred and Jeff Corntassel, ‘Being Indigenous: Resurgences Against Contemporary Colonialism’ (2005) 40 Government and Opposition 597, 601. 105 Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawaii (­Honolulu, hi: University of Hawaii Press, 1999) 263.

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allowed to grow and change in our own way, true to the values and traditions of our people.’106 What explains the gaping chasm between Buchanan’s skepticism about even decent nonliberal cultures and indigenous peoples’ unwavering dedication to the integrity of their nonliberal cultures? Why do Buchanan’s and indigenous peoples’ views of nonliberal culture differ so drastically? Given Buchanan’s unsubstantiated allegation that even reasonable persons in decent nonliberal societies would support ‘a permanent, hereditary caste’ or systemic gender oppression,107 it seems reasonable to suppose that Buchanan is presuming that even decent nonliberal cultures, just by virtue of their being nonliberal, have always been and are destined to remain oppressive, inegalitarian, and patriarchal.108 This essentialist and monolithic conception of nonliberal culture is simply not how indigenous peoples think of their nonliberal cultures. In other words, Buchanan is presupposing a fabricated conception of nonliberal culture as incorrigibly oppressive to which no member of indigenous peoples subscribes. Culture, whether liberal or nonliberal, is a comprehensive way of life that has endured over time, predicated on common institutions, language, evaluative (moral/religious) framework, and history, shared by members of an ­intergenerational community occupying a territory.109 It is not monolithic, hermetic, or static, but rather complex, porous, and ‘evolving’.110 Although culture provides a comprehensive evaluative framework compatible with a range of members’ individual plans of life, no monolithic ‘essential’ set of cultural 106 Domingo Montoya of Sandi Pueblo, quoted in Frances Svensson, ‘Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes’ (1999) 27 Political Studies 421, 432. 107 Buchanan (n 8) 160. 108 The idea that essentialist and monolithic nonliberal cultures of indigenous peoples are hopelessly oppressive has been more explicitly discussed by another liberal philosopher, Amy Gutmann (Amy Gutmann, Identity in Democracy (Princeton, nj: Princeton University Press, 2003)), in her argument against indigenous peoples’ demand for sovereignty predicated on cultural integrity. For an in-depth analysis of Gutmann’s position, see Ranjoo S. Herr, ‘Cultural Claims and the Limits of Liberal Democracy’ (2009) 34 Social Theory and Practice 25. 109 Corntassel (n 62) 97; see also, Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 1995) 18, 76; Avishai Margalit and Joseph Raz, ‘National Self-Determination’ (1990) 87 Journal of Philosophy 439, 444. 110 Gerald R. Alfred and F. Wilmer, ‘Indigenous Peoples, States, and Conflict’ in David Carment and Patrick James (eds) Wars in the Midst of Peace: The International Politics of Ethnic Conflict (Pittsburgh, pa: University of Pittsburgh Press, 1997) 26, 27.

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­elements exists to be engraved in the identities of every member. Culture encompasses multiple cultural values as well as their multiple interpretations. Under non-coercive circumstances, even those who self-identify as members of the same cultural group – people or nation – would adopt different cultural values and/or interpretations as constitutive of their personal plans of life and disagree with one another on various issues pertaining to their common cultural-­political system. I refer to this as the fact of intracultural pluralism. The fact of intracultural pluralism, however, is not incompatible with a strong desire of self-identifying members of a cultural group to live in accordance with their cultural way of life through collective self-determination, ­especially if the group in question has been oppressed by outside forces. ­Indigenous peoples of North America and elsewhere have been subjected to extreme forms of oppression due to the European conquest and colonialism: Their populations were decimated; most of them lost their original homelands and were banished to unfamiliar and often barren lands; their cultures and ways of life have been annihilated through centuries of European colonialism and cultural imperialism. The European majority have rationalised this process by claiming that indigenous cultures are ‘backward’111 or ‘uncivilized’112 unfit to be accommodated by the dominant liberal society. Under these circumstances, indigenous peoples have been remarkably united in their pursuit of the collective right to self-determination centered around ‘certain common beliefs, values, and principles that form the persistent core of a community’s culture.’113 Although many liberals may be sympathetic to indigenous peoples’ demand for collective self-determination, they may still insist that indigenous peoples’ commitment to cultural integrity requires a moral justification. One need not appeal to an essentialist conception of indigneous cultures to argue that the exercise of indigenous peoples’ collective right to self-determination for the sake of cultural integrity may lead to the oppression of vulnerable members. In other words, even if one accepts that indigenous cultures of the past were egalitarian, it does not follow that they will be in the future, as many of them are currently in disarray due to the corrosive effects of centuries of European colonialism.114 Take, for instance, the fact that many contemporary indigenous women suffer from discrimination and violence in their own cultural communities, as their indigenous cultures have undergone considerable 111 Anaya (n 15) 30. 112 Ibid, 27. 113 Alfred, Peace (n 78) 16. 114 Jaimes and Halsey (n 71).

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disintegration and deterioration since the European conquest.115 Allowing indigenous peoples to exercise collective self-determination under these conditions, liberals may continue, would be detrimental to women who are already disadvantaged. I agree that discrimination against women in many contemporary indigenous communities is a serious problem. Yet, predicated on the idea of culture as complex, porous, and evolving, I believe that indigenous women would be able to mitigate such internal problems by participating in the process of robust collective self-determination. This is because the ‘internal’ aspect of collective self-determination is none other than democracy,116 broadly understood as a politics that enables self-identifying members of a people, who may disagree with one another about various aspects of their cultural community (intracultural pluralism), to participate as equal members in internal contestations and negotiations and thereby contribute to the development of a cultural-political system that would promote every member’s well-being.117 Indigenous women, as equal members of their communities, are equally entitled to participate in the collective self-determination of their cultural communities and have their voices heard and respected. Indeed, even the indigenous women who oppose discrimination and violence within their communities identify themselves as ‘members’ of their communities and support ‘self-determination’,118 ‘sovereignty’, or ‘nationhood’.119 It is only by insisting on their equal status as members to participate in collective self-determination that indigenous women can reform their cultural-political systems to approximate their egalitarian past. iv

Conceptualising the Moral Collective Right to Self-determination

Once we acknowledge that indigenous peoples’ nonliberal cultures are as complex, porous, and evolving as liberal cultures, could we conceptualise indigenous peoples’ collective right to self-determination as moral and not merely legal? In this section, I attempt to provide an argument for this position. Let us, however, start with some definitions. 115 Janet Silman, Enough Is Enough (Toronto, on, Canada: Canadian Scholars’ Press, 1987). 116 See Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995) 11. 117 For more, see Ranjoo S. Herr, ‘In Defense of Non-liberal Nationalism’ (2006) 34 Political Theory 304. 118 Silman, (n 115) 235. 119 Ibid, 224.

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A right is collective120 only when it is attributable to a group qua group and is not reducible to the aggregation of the rights of individual members. Groups to which collective rights can be attributed are ‘conglomerate’ collectivities as opposed to ‘aggregate’ collectivities. A conglomerate collectivity maintains its independent identity as a group despite changes in its constitutive membership. In contrast, an aggregate collectivity is merely a collection of individuals.121 A prime example of the conglomerate collectivity is a people or nation, members of which share common sympathies with one another generated by a common culture, language, history, and institutions. I will argue below that a group in this sense can be considered an intentional group agent122 that is conceptually and functionally irreducible to the aggregation of its members’ individual intentions and actions. It can have a ‘moral status’ as a group over and above the mere collection of its members123 and be a holder of the moral collective right to self-determination. Invoking the idea of group agents, however, has set off alarm bells among mainstream liberal theorists and invited the critique that such an idea smuggles in the assumption that groups have an ‘ontological status’ as agents.124 This is patently false, liberal theorists argue, because only individuals have 120 In order to avoid confusion, let me clarify that my usage of ‘collective’ here is different from Jones’ (Peter Jones, ‘Group Rights’ in Edward N. Zalta (ed) The Stanford Encyclopedia of Philosophy (2016) available at http://plato.stanford.edu/archives/sum2016/entries/ rights-group/ (last visited 10 Feb 2017)) usage and is equivalent to his term ‘corporate.’ 121 (Peter French, Collective and Corporate Responsibility. New York: Columbia University Press, 1984) 5, 13; see also, Dwight Newman, ‘Collective Interests and Collective Rights’ (2004) 49 American Journal of Jurisprudence 127, 4. 122 In the literature of collective rights, two main approaches are dominant: The first is to derive the idea of collective rights from the concept of interest, inspired by Raz’s work: Joseph Raz, The Morality of Freedom (New York: Clarendon Press 1986), Peter Jones, ‘Group Rights and Group Oppression’ (1999) 7 Journal of Political Philosophy 353; Leighton McDonald, ‘Can Collective and Individual Rights Coexist?’ (1998) 22 Melbourne University Law Review 310; Newman (n 121); Denise Réaume, ‘Individuals, Groups, and Rights to Public Goods’ (1988) 38 University of Toronto Law Journal 1; Wall (n 48). Buchanan seems to align himself with this approach (see Buchanan (n 8) 414–415). The second is to rely on the idea of group agency (French (n 121); Adina Preda, ‘Group Rights and Group ­Agency’(2012) 9 Journal of Moral Philosophy 229; Tuomela (n 42)). The former approach, despite its popularity among liberals, involves inconsistencies (see, Adina Preda, ‘Group Rights and Shared Interests’ (2013) 61 Political Studies 250) and is not compatible with the moral collective right to self-determination that indigenous peoples demand. I therefore follow the second approach. 123 Jones (n 120). 124 Preda, ‘Group Agency’ (n 122) 230.

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the requisite ontological status necessary for the attribution of rights. As we have seen, Buchanan’s justificatory individualism leads him to conclude that groups cannot be the ‘possessors of moral rights’, because ‘only individuals are moral subjects.’ Therefore, the indigenous right to self-determination is at best ‘legal’.125 Buchanan’s justificatory individualism is a version of methodological individualism, which claims that social phenomena consist ‘solely of the activities and properties (including mental activities and properties) and interactions (including mental interactions and relations) between individuals.’126 When describing group activities or group properties this position takes them ‘reducible’ to attitudes and motivating reasons of individuals that compose them.127 A defensible idea of group agents, however, does not require an ontological status of groups on a par with individuals. According to ‘methodological collectivism’128 which has been gaining traction in social sciences, the idea of group agents makes sense, because it has ‘indispensable explanatory, predictive, and descriptive usefulness for theorizing about the social world.’129 Ultimately, it is individuals who are ‘the only causally initiating agentive motors,’ and the conception of group agents ‘ontologically depends’ on the members’ psychological and emotional states and actions.130 Yet, group agents are both ‘epistemically objective’ in that they really do exist and ‘causally objective’ in that they have causal powers to generate practical outcomes in the real world.131 This does not mean that groups are ‘intrinsically’ intentional132 or that they are ‘full-blown’ agents133 with properties that pertain to embodied human agents. Rather group agents are intentional only in a ‘derived, extrinsic sense’ in that their intentions are predicated on the members’ ‘collective attribution of attitudes’ to the group.134 Yet, in the ‘minimal’ sense of having ‘a capacity for acting,’ group agents are nevertheless intentional.135 125 Buchanan (n 8) 414. 126 Tuomela (n 42) 10. 127 Ibid. 128 Ibid. Some call it ‘methodological holism’ (Christina List and Kai Spiekermann, ‘Methodological Individualism and Holism in Political Science: A Reconciliation’ (2013) 107 ­American Political Science Review 629). 129 Tuomela (n 42) 46, emphasis in the original; see also List and Spiekermann (n 128) 631. 130 Tuomela (n 42) 22. 131 Ibid, 47, emphasis in the original. 132 Ibid, 3. 133 Preda, ‘Group Agency’ (n 122) 231. 134 Tuomela (n 42) 23, emphasis in the original. 135 Preda, ‘Group Agency’ (n 122) 233, emphasis in the original.

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I propose that an intentional group agent, such as a nation or a people, attain a moral status and be ascribed a moral collective right to self-­determination if at least two conditions are met: First, its members operate according to what Raimo Tuomela calls the ‘we-mode’, at least some of the time, and, second, there is a coherent, collective, and public ‘decision-making procedure’ that makes group decisions genuinely attributable to the group itself and not to only some of its members.136 Let me elaborate on each of these two components. First, in the we-mode, individuals function ‘fully as a group member’137 in that they ‘intend to act together as a group’ by meeting the requirement of ‘collective commitment’.138 Members satisfy the collective commitment condition when they are committed to attaining the group’s goals (especially its ‘ethos’) and to performing their part qua group members in this process by fulfilling their group-based obligations toward not only the group itself but also one another.139 Collective commitment in the we-mode functions to bind ‘the members together around an ethos, serving to ground the unity and identity of the group’ and provides the group with ‘the authority to decide about its members’ activities in a practically efficient way.’ Consequently, when members act in the we-mode, they not only are committed to the group’s ethos but also form a sense of duty to perform their part in the collective activity to preserve the ethos; each member is willing to be ‘accountable for [her] participatory actions, not only to [her]self but also to the other members.’140 Second, in order for members to act in the we-mode efficiently and make group decisions genuinely attributable to the group itself, they must follow a collective ‘decision-making procedure’ that is coherent and public.141 In order for decisions to be genuinely collective, they must be ‘attributable to the whole group’.142 This requires a collective decision-making procedure that is accepted by all members as legitimate, which may involve a majority vote or consensus. As Adina Preda states, ‘it does not matter what the procedure is as long as it

136 137 138 139 140

Ibid, 247. Tuomela (n 42) 23. See Ibid, 3.4, 6, emphasis in the original. Ibid, 43. Ibid, 45, For a similar emphasis on the ‘subjectivity’ of group members as critical for transforming a group into a group agent (Jones (n 120), see Marlies Galenkamp, Individualism versus Collectivism the Concept of Collective Rights (Rotterdam: Rotterdamse Filosofische Studies, 1998); Michael McDonald, ‘Should Communities Have Rights? Reflections on Liberal Individualism’ (1991) 4 Canadian Journal of Law and Jurisprudence 217.) 141 Preda, ‘Group Agency’ (n 122) 247. 142 Ibid, 248.

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specifies that the group as a whole decides in that manner.’143 This procedure is compatible with giving authority to a subset of group members to whom the power to make further decisions and execute those decisions is delegated. This procedure ought to be ‘public’ and transparent, however, so that group members are fully aware of what is involved, can give their approval when they deem it legitimate, and can contest it in case they consider the procedure corrupted. Furthermore, the procedure ought to incorporate mechanisms by which the group can make ‘coherent’ decisions144 and avoid ‘discursive dilemmas’ that arise when ‘the votes of entirely consistent individuals on logically connected issues can generate a set of inconsistent positions on those issues.’145 The process by which equal members of a group in the we-mode collectively decide upon a collective decision-making procedure that is acceptable to all members constitutes a core element of internal collective self-determination or democracy, although it is by no means the only element. The second condition for an intentional group agent to gain a moral status to exercise the moral collective right to self-determination, then, is that it be democratic, broadly understood. If an intentional group agent meets these two conditions – it is a group in the we-mode and that it is democratic – then I believe that it is entitled to exercise its moral right to collective self-determination in order to protect its cultural integrity. Most indigenous peoples have been – and, in case they no longer are, aspire to be – paradigmatic intentional group agents in the we-mode, whose collective decision-making procedure has been based on consensus among equal members. Members of contemporary indigenous peoples feel affinity with one another as cultural co-members bound by kinship, and mutually recognise one another as equal members to whom they owe their group-based obligations. They are deservingly proud of their exceptionally egalitarian and consensus-based traditions, and many have wholeheartedly embraced their indigenous cultural values and ways of life (‘ethos’). Indigenous peoples therefore have been strongly committed to reviving and rejuvenating their honored cultural values and traditions in the name of cultural integrity. Internationally recognising indigenous peoples’ moral collective right to self-­determination for the sake of cultural integrity, then, would not only invigorate internal 143 Ibid, 249. 144 Ibid, 247. 145 Philip Pettit, ‘Varieties of Public Representation’ in Susan Stokes, Ian Shapiro, E.J. Wood et al (eds) Political Representation (Cambridge: Cambridge University Press, 2009) 61, 75. This implies that any majoritarian voting system ought to be supplemented by other mechanisms to ensure that consistency is maintained between democratic input and policy output (see Ibid, 76).

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c­ ollective self-determination – democracy – and empower all self-identifying members of indigenous peoples to participate as equal members in internal contestations and negotiations concerning their common cultural-political systems, but also enable them to restore and revitalise their unique indigenous forms of democracy, which were undoubtedly some of the most remarkable moral achievements in human history.

Concluding Remarks: Overhauling the International Human Rights System

The aim of this article has been to examine whether the ilhrs is adequate as a legal system for just global governance by focusing on the ilhrs’ relation to indigenous peoples’ right to self-determination. If the ilhrs’s normative foundation is conceptualised as liberal individualist, along the lines s­ uggested by Buchanan, then it is not compatible with the normative conception of the collective right to self-determination advocated by indigenous peoples themselves. The reason is not only that liberal individualism’s methodological ­individualism is averse to conferring on oppressed cultural groups, such as indigenous peoples, the moral right to collective self-determination. It is also that liberal individualism presumes nonliberal cultures to be ‘excessively inegalitarian’ and rejects the value of cultural integrity on which indigenous peoples’ demand for collective right to self-determination is predicated. I have shown that nonliberal cultures of indigenous peoples, as paradigmatic ­examples of Rawls’ decent nonliberal peoples, are far from excessively inegalitarian. To the contrary, their traditional cultures were remarkably egalitarian and democratic, albeit nonliberal. The passion to resuscitate and reinvigorate their egalitarian and democratic nonliberal cultural values and institutions has been the primary driving force behind the movement by contemporary members of indigenous peoples for their collective right to self-determination. If my argument has been plausible, then the ilhrs, predicated on a liberal individualist foundation, cannot operate as an impartial arbiter of justice for all nations and peoples demanding their moral collective right to self-­ determination. Despite the fact that the ilhrs’ various documents affirm that ‘All peoples have the right to self-determination’,146 this affirmation cannot be more than lip service unless the liberal foundation of the ilhrs and its limits are exposed and confronted. The aim ought to be to reconstruct it according 146 Preamble, Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 Dec 1960 A/Res/1514(xv); Art 1 icescr and iccpr.

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to ‘a genuine, unforced international consensus on human rights’147 among all well-ordered societies. This, however, must be premised on the realisation that such a consensus may be limited, as diverse well-ordered cultural groups or peoples may subscribe to incompatible views about fundamental ideas concerning human nature, theology, and metaphysics148 and may disagree about their ‘underlying justification’.149 Therefore, the most that can be agreed upon by well-intentioned well-ordered societies may be an ‘overlapping consensus’ concerning ‘certain norms that ought to govern human behavior.’150 It is this limited consensus, which ought to become the core of an alternative human rights system. Such a system of human rights would be drastically different from the current human rights system whose philosophical justification is predicated on liberal individualism that originates from the liberal West. In this alternative system, philosophical justifications regarding the acceptable norms of human behaviour accepted by different well-ordered peoples would remain outside of the human rights system; the human rights system would consist of the content of the overlapping consensus among all well-ordered peoples on what counts as a universally acceptable norms of behaviour for human and group agents. Although the elaboration and defence of such a system requires more space than is permitted, I will end this paper with a glimpse of what this alternative human rights system may involve. Among the universally acceptable norms of conduct for human and group agents, the collective right to self-­determination of all well-ordered peoples would be featured prominently as constitutive of the human rights system. I endorse Rawls’s main criterion of well-ordered groups or societies that they ‘recognize certain basic principles of political justice as governing their conduct.’151 Liberal peoples are just societies in the sense that they follow principles of liberal justice. In the case of decent nonliberal peoples, among which are indigenous peoples, they are just in the sense that they subscribe to the ‘common good ideas of justice.’ Although the common ideas of justice may differ from decent nonliberal people to decent nonliberal people, one common denominator among culturally different common ideas of justice would be that the decent nonliberal people protect ­certain 147 Charles Taylor, ‘Conditions of an Unforced Consensus on Human Rights’ in Joanne Bauer and (Daniel Bell (eds) The East Asian Challenge for Human Rights. New York: Cambridge University Press, 1999) 124. 148 Ibid. 149 Ibid, 125. 150 Ibid, 124. 151 Rawls (n 24) 37.

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vital human interests of their members, such as life, physical security, subsistence, bodily and mental freedom to live one’s life without undue external interference,152 and fair treatment in the penal system.153 The importance of protecting these vital human interests would be another constitutive element of this alternative human rights system. We might call them ‘human rights proper’154 that express a minimalist conception of human rights acceptable to all well-ordered societies with divergent traditions and cultures. While this alternative human rights system may seem incomplete and anemic to some, it may be the only universal human rights system that expresses ‘a proper respect and recognition’ of equality among all well-ordered peoples.155

Acknowledgements

A previous version of this paper has been published in Journal of International Political Theory, 13/2, June 2017 by SAGE Publications Ltd, All rights reserved. © Ranjoo S. Herr.

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152 I say ‘undue’ interference because the range of individual freedom protected in decent nonliberal communities may be somewhat restricted vis-à-vis liberal societies. 153 See Rawls (n 24) 65. 154 Ibid, 80, note 23. 155 Ibid, 35.

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Pogge, Thomas, ‘How Should Human Rights Be Conceived?’ in World Poverty and ­Human Rights:Cosmopolitan Responsibilities and Reforms (Malden, MA: Polity, 2002) 52. Preda, Adina, ‘Group Rights and Group Agency’(2012) 9 Journal of Moral Philosophy 229. Preda, Adina, ‘Group Rights and Shared Interests’ (2013) 61 Political Studies 250. Rawls, John, Political Liberalism (New York: Columbia University Press, 1993). Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). Raz, Joseph, The Morality of Freedom (New York: Clarendon Press, 1986). Raz, Joseph, ‘Human Rights Without Foundations’ in Samantha Besson and J Tasioulas (eds) The Philosophy of International Law (Oxford; New York: Oxford University Press, 2010) 321. Réaume, Denise, ‘Individuals, Groups, and Rights to Public Goods’ (1988) 38 University of Toronto Law Journal 1. Silman, Janet, Enough Is Enough (Toronto, ON, Canada: Canadian Scholars’ Press, 1987). Smith, Anthony D., Theories of Nationalism (New York: Holmes & Meier, 1983). Stamatopoulou, Elsa, ‘Taking Cultural Rights Seriously: The Vision of the U.N. Declaration on the Rights of Indigenous Peoples’ in Steve Allen and Alexandra Xanthaki (eds) Reflections on the U.N. Declaration on the Rights of Indigenous Peoples (London: Bloomsbury Publishing, 2011) 387. Steger, Manfred, Globalization (Oxford: Oxford University Press, 2003). Svensson, Frances, ‘Liberal Democracy and Group Rights: The Legacy of Individualism and its Impact on American Indian Tribes’ (1999) 27 Political Studies 421. Taylor, Charles, ‘Conditions of an Unforced Consensus on Human Rights’ in Joanne Bauer and Daniel Bell (eds) The East Asian Challenge for Human Rights. New York: Cambridge University Press, 1999) 124. Trask, Haunani-Kay, From a Native Daughter: Colonialism and Sovereignty in Hawaii (Honolulu, HI: University of Hawaii Press, 1999). Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). Tuomela, Raimo, Social Ontology (New York: Oxford University Press, 2013). Turpel, Mary Ellen, ‘Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences’ (1989) 3 Canadian Journal of Human Rights 3. Wall, Steven, ‘Collective Rights and Individual Autonomy’ (2007) 117 Ethics 234. Wellman, Christopher, ‘A Defense of Secession and Political Self-Determination’ (1995) 24 Philosophy and Public Affairs 142. White Face, Charmaine, Indigenous Nations’ Rights in the Balance: An Analysis of the Declaration on the Rights of Indigenous Peoples (St Paul, MN: Living Justice Press, 2013).

Chapter 2

Re-appraising the Significance of ‘Third-Generation’ Rights in a Globalised World Dustin N. Sharp Abstract Some forty years after they some of them were initially proposed, so-called ‘third-­ generation’ rights – including rights to development and a healthy environment – have not gained the traction may would have hoped. Meanwhile, the gap between the mainstream human rights regime and some of the most pressing humanitarian issues of the twenty-first century appears to be growing. Problems of crushing poverty, radical inequality, pervasive economic and structural violence, climate change and ecological collapse often seem to elude protections of earlier generations of rights. In this chapter, I will argue that if further development of and acceptance of third-generation rights as ‘real rights’ is not without challenges, their effective dismissal in many quarters during previous decades represented a wrong turn. Renewed engagement with third-generation rights is critical for at least three reasons: (1) they can help to address grave threats to human security in the changing landscape of the twenty-first century; (2) they challenge traditional conceptual boundaries of human rights law that may help push the field forward in ways better adapted to a globalised world; and (3) forging greater consensus around the meaning and significance of third-generation rights would help further a sense of human rights as a shared global project. While taming power in times of globalisation is a task with many dimensions, revitalising the debate around third-generation rights should be an important part of the landscape.

Keywords human rights – third-generation rights – right to development – right to a healthy environment – globalisation – human rights duties – solidarity

* Assistant Professor, Joan B. Kroc School of Peace Studies, University of San Diego, usa. Email: [email protected].

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_004

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Writing in 1990, Louis Henkin triumphantly proclaimed human rights to be ‘the idea of our time.’1 If such optimism was warranted some twenty-five years ago, buoyed as it may have been by a sense of the ‘end of history,’2 the continued relevance of that idea in an era where globalization has radically altered the landscape in which it was created warrants careful reflection.3 Not only have rights not always received the ‘universal acceptance’ that Henkin optimistically sounded,4 but the gap between the human rights regime and some of the most pressing humanitarian issues of the twenty-first century appears to be growing. Problems of radical poverty and inequality, economic violence,5 global warming and ecological collapse often seem to elude protections of the dominant, liberal-legalist human rights regime. At the same time, with a dramatic increase in the number and power of transnational corporations, together with the influence wielded by international organizations such as the World Bank, the International Monetary Fund and the World Trade Organisation (wto), power in a globalised world has become less state-centric, less democratic and more diffuse. In many instances, this has served to reduce the policy autonomy of governments, particularly in the Global South, to address problems such as poverty. For the most part, these changing dynamics have not been met with a corresponding evolution in global normative and institutional accountability ­mechanisms. We then end up with a global governance not without governments, but lacking the requisite checks and balances required to serve as a ‘gentle civilizer of globalization.’6 With these challenges in mind, even if one 1 Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990) ix. 2 See generally Francis Fukuyama, The End of History and the Last Man (New York: Avon Books, 1992). 3 See Tony Evans, ‘Universal Human Rights in the Global Political Economy’ in Cindy Holder & David Reidy (eds) Human Rights; The Hard Questions (Cambridge: Cambridge University Press, 2013) 174, 179. 4 Henkin (n 1) ix. 5 As used here, the term ‘economic violence’ clearly echoes Galtung’s notion of ‘structural violence,’ but with at least one very important distinction. Galtung conceived of structural violence as being essentially impersonal, indirect, and unintentional as compared with physical violence. See, Johan Galtung, ‘Violence, Peace, and Peace Research’, (1969) 6 Peace Research 167. In contrast, economic violence – ranging from corruption and plunder of natural resources to the lopsided trade rules that underpin the international economic order and structural adjustment programs imposed the International Financial Institutions – cannot be characterized in the same way, and is in some ways more akin to physical violence than structural violence. 6 See Marttii Koskenniemi, The Gentle Civilizer of Nations; The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2004).

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does not believe, as has been suggested, that Henkin’s ‘Age of Rights’ is entering into its twilight or ‘endtimes,’7 it is nevertheless incumbent upon each ­generation to re-appraise the relevance of the human rights regime to the thorny social justice issues of its own time, and to adapt things where they are found wanting. One of the problems with Henkin’s vision of human rights is that it appears to assume a rather one-directional narrative of progress. Seen through this lens, rights are a means by which the downtrodden use the power of law to curtail the various pathologies of state power, re-negotiating the social contract to allow for ‘better standards of life in larger freedom.’8 While the promise of human rights to tame power is certainly an important part of the story, overlooked in this conception is the extent to which human rights law is and always has been a terrain for moral, legal, political and ideological struggle, representing both the ‘power of law’ as well as the ‘law of power.’9 Thus, if the law, including human rights law, may at times operate as a check on abuses of power, it may also serve to legitimize the violence of the state – allowing, for example, certain forms of state sanctioned killing and not others, certain forms of discrimination and not others, etc.10 By focusing primarily on physical violence meted out by the state, human rights law may also render largely invisible and legitimize other forms of violence, including economic and structural violence, not easily captured within the four corners of its legal cosmovision. In other words, if human rights law is occasionally subversive, it is also the product of dominant power relations. When the line between the law’s redemptive power and its service to power becomes too thin, the perceived legitimacy of the human rights regime and its ability to constrain power grows dimmer.11 These dynamics – the two faces of human rights law – are reflected in the historically marginal status of economic and social rights, which were pushed to the periphery of thinking and policy making by neoliberals throughout and beyond the Cold War, together with the fate of the rights to development, 7 8 9 10 11

See Stephen Hopgood, The Endtimes of Human Rights (Ithaca, ny: Cornell University Press, 2014). Universal Declaration of Human Rights (udhr), 10 Dec 1948, ga Res. 217A (iii), un Doc A/810 at 71 (1948), Preamble. Terrence E. Paupp, Redefining Human Rights in the Struggle for Peace and Development (Cambridge: Cambridge University Press, 2014) 257. Jeanne Woods, ‘Theorizing Peace as a Human Right’ (2013) 7 Human Rights & International Legal Discourse 178, 180. See Thomas M. Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990) 24–26.

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peace and a healthy environment. Many of these so-called ‘third-generation’ rights – the right to development in particular – have been met with a degree of ­hostility and derision in the liberal West,12 even as their moral and legal significance in the Global South are often taken for granted. While their sun initially rose in 1970s and 1980s, this proved to be a false dawn. With the ascendency of neoliberalism and globalisation as both an ideology and a process, third-generation rights have, in recent years, been largely pushed to the margins.13 If the Global North can take much of the blame for the seeming demise of third-generation rights as an ascendant force, their story and fate is not as simple as a clean political and ideological division between the West and the rest. Progressive understandings of the right to development – understandings that might disturb dominant power interests in North and South – have been undermined by governments worldwide, and constitute a vivid illustration of the tension between the power of law and the law of power. Yet whatever the cause, the failure of these rights to take stronger root forces us to ask hard questions about the politics and ideology of the human rights regime, as well as its relevance to the problems and suffering of a twenty-first century humanity in a globalized world. In this chapter, I will examine the history, current status and possible future of the right to development (R2D) and the right to a healthy environment (R2E) in particular.14 I will argue that more vigorous engagement, debate and action (particularly from the Global North) is both timely and essential if we are – to update Henkin’s famous phrase – make human rights ‘the idea of our [globalized] time.’ Stronger engagement is critical for at least three reasons. First, because it has become ever clearer that in the twenty-first century, the R2D and the R2E are true ‘survival rights,’ essential both to our collective ability to respect, protect and fulfil earlier generations of rights, but also critical in and of themselves to address threats to human security exacerbated by globalisation. Second, because the R2D and the R2E challenge the traditional narrow boundaries of the mainstream conception of human rights – expressing more 12

13 14

See, eg, Jack Donnelly, ‘In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development’ (1985) 15 California Western International Law Journal 473. It should be noted that the North-South or East-West divide has been less salient in the case of the right to a healthy environment than for rights to development and to peace. This is not to say totally abandoned, as evidenced by on-again, off-again efforts within various rooms and corridors of the un Human Rights Commission. For reasons of space, I will not delve into the right to peace or other third-generation rights in any degree of detail.

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expansive notions of rights holders, duty bearers and territorial obligations – the questions they raise are critical to the future of the human rights regime more generally and can serve as the crucible in which some of the dilemmas arising out of human rights in a globalised world might begin to be reconciled. Finally, forging a greater North-South consensus on the meaning and status of the R2D and the R2E might take us one step further towards a world in which human rights are perceived as a shared global project, rather than a largely western or northern one. In sum, I will argue that if further development and acceptance of these rights as ‘real rights’ is not without challenges, their effective dismissal in many quarters during previous decades represented a wrong turn for the international human rights regime and movement as a whole. While taming power in times of globalization is a task with many dimensions, generating a stronger and more widely shared commitment to the realisation of third-generation rights should be an important part of the landscape. i

History & Status of Third-Generation Rights

In 1977, Karel Vasak published an essay in the unesco Courier in which he characterized international human rights in terms of ‘three generations.’15 The ‘first generation’ comprises civil and political rights as reflected in the International Covenant on Civil and Political Rights (iccpr)16 such as freedom of expression and the right to be free from torture. The ‘second generation’ involves economic and social rights now associated with the International Covenant on Economic, Social and Cultural Rights (icescr),17 such as rights to education and health. Vasak then identified a ‘third generation’ of rights, which he called ‘solidarity rights,’ including rights to peace, development, a healthy environment and the right to ownership of the common heritage of mankind. Vasak associated each of these ‘generations’ with the motto of the French Republic, namely liberté, egalité, and fraternité (solidarity) respectively. In a later essay, Vasak further associated each generation or wave of rights with periods of history, with the first wave said to arise out of the French revolution, the second wave out of the Russian revolution of 1917, and the third wave out of ‘the emancipation of colonized and dominated peoples’ in the mid-twentieth century.18 15 16 17 18

Karel Vasak, ‘A 30-Year Struggle’, unesco Courier, November 1977, 29. International Covenant on Civil and Political Rights, 16 Dec 1966, 999 unts 171. International Covenant on Economic, Social and Cultural Rights, 16 Dec 1966, 993 unts 3. Karel Vasak, ‘Pour une troisième generation des droits de l’homme’, in C Swinarski (ed) Studies and Essays on International Humanitarian Law and Red Cross Principles

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While Vasak’s concept of generations has been consistently perpetuated in international law scholarship, it has also been controversial for a number of reasons.19 Unlike real generations, generations of rights do not of course replace each other. Moreover, to the extent they are associated with the udhr or the subsequent Covenants, so-called first and second generations are actually contemporaneous. There is also the problem of a potential hierarchy implied by the first, second and third-generation terminology. On the other hand, abandoning the term ‘third-generation’ entirely begs the question of suitable alternatives. While some may prefer ‘solidarity rights,’ one could object to this alternative on the grounds that all generations of rights can be said to require a certain amount of solidarity for their realisation, not just the third generation. Thus, for example, the right to self-determination, which can be seen as a collective, group or solidary right akin to other thirdgeneration rights, is actually set forth in both the iccpr and icescr. Yet if differences between the various generations are not as crisp as suggested by Vasak’s typology, third-generation rights can nevertheless lay some claim to distinctiveness in terms of their historical genesis and conceptualisation. In addition, if the hierarchy suggested by the generational terminology rubs partisans of second and third-generation rights the wrong way, it may be said to accurately reflect the comparative marginalisation of those rights in mainstream discourse and practice. In this light, one might argue for retention of the ‘third-generation’ label as a form of subversive appropriation, akin to legal scholars from the Global South who have mobilized under the banner of twail (‘Third-World Approaches to International Law’).20 For these reasons, and for want of suitable alternatives, the generational terminology is retained in this chapter. The Right to Development: A Brief History Unlike earlier generations of rights, most third-generation rights do not have a long historical pedigree, and did not benefit from a lengthy period of ­normative incubation and debate within (or outside of) the un prior to being declared as rights, giving some the impression that they have been ‘conjured up’ out of nowhere.21 Of course, there is also a strong argument that international human rights of all generations arose ‘seemingly from nowhere,’ gaining serious legal 19 20 21

(The Hague: Martinus Nijhoff, 1984) 837. See, e.g., Patrick Macklem, ‘Human Rights in International Law: Three Generations or One?’ (2015) 3 London Review of International Law 61. See Makau Mutua and Antony Anghie, ‘What is twail?’ (2000) 94 Proceedings of the Annual Meeting (American Society of International Law) 31. See generally, Philip Alston, ‘Conjuring up New Rights: A Proposal for Quality Control’ (1984) 78 The American Journal of International Law 607.

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and institutional currency only in the 1970s.22 But as Philip Alston has noted, the rushed and flawed process for the formulation and proclamation of many third-generation rights may help to explain, at least in part, some of the resistance they have faced.23 First popularized by Senegalese jurist Kéba M’Baye in 1972, and then recognized by the un Commission on Human Rights in 1977, the R2D was enshrined as an international human right in the Declaration on the Right to Development in 1986.24 In a move that expressed its hostility to economic and social rights more generally, the Regan administration famously cast the solitary lone vote against the Declaration (with many European donor states choosing to abstain).25 The R2D was subsequently unanimously endorsed at the World Conference on Human Rights in Vienna in 1993, and has been reaffirmed and elaborated upon in resolutions and publications of various organs of the un ever since.26 Aside from its recognition in one regional convention, the African Charter on Human and Peoples Rights,27 and several national constitutions,28 the R2D remains ‘soft law’ and its periodic reaffirmation does little to obscure a deep and abiding debate about its meaning and significance. Nor has the adoption of the Declaration served to erase the North-South frictions that gave rise in the 1970s to proposals for a New International Economic Order (nieo) that would include a more equitable distribution of resources. If anything, these proposals were rebutted by the Washington Consensus, structural adjustment programs 22 23 24 25 26

27

28

See Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010) 3. Alston, ‘Conjuring up New Rights’ (n 21) 613. Declaration on the Right to Development, 4 Dec 1986, ga Res. 41/128 (Annex), un Doc A/41/53 (1987). Bonny Ibhawoh, ‘The Right to Development: The Politics and Polemics of Power and Resistance’ (2011) 33 Human Rights Quarterly 76, 86. The culmination of much of this norm development can be found in Office of the un High Commissioner for Human Rights, Realizing the Right to Development: Essays in Commemoration of 25 Years of the United Nations Declaration on the Right to Development, HR/PUB/12/4 (2013). African Charter on Human and People’s Rights, 27 June 1981, oau Doc CAB/LEG/67/3 rev. 5, 21 ilm 58 (1982), Art 22. Though it does not have the same ‘hard law’ status as the African Charter, the 2012 asean Human Rights Declaration also recognises, in its Art 35, the right to development. See Association of Southeast Asian Nations (asean), asean Human Rights Declaration, 18 Nov 2012. Examples include Benin, the Central African Republic, the Democratic Republic of the Congo, Ethiopia, Malawi and Senegal. Both Ghana and Uganda include the R2D as a ‘directive principle’ of national policy.

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and the wto, making a gospel out of deregulation, privatisation, elimination of subsidies, free trade and so forth. While the International Financial Institutions may now preach a somewhat chastened version of the Washington Consensus, it is clear that international law has yet to create a level playing field for the Global South, as issues surrounding the global trading order, loan conditionalities and debt relief suggest all too well. In short, this is not the world that early proponents of the nieo and the R2D were looking for. The Right to a Healthy Environment: A Brief History In comparison with the R2D, the R2E is less associated with a North-South cleavage, even while its status under international law is significantly murkier. As with the R2D, the R2E is not explicitly mentioned in the udhr, iccpr or icescr. While environmental rights are provided for in two regional human rights conventions,29 a R2E is not more generally recognised under international law, in either ‘hard’ or ‘soft’ form.30 There have been multiple opportunities for such recognition to take place over the last forty plus years. At the 1972 Stockholm Conference on the Human Environment, the United States actually proposed to cast environmental protection in human rights terms (‘Every human being has a right to a healthful environment’),31 yet this proposal was rejected in favour of language noting only that ‘man has the fundamental right to … conditions of life in an e­ nvironment of quality.’32 Twenty years later, the 1992 un Conference on Environment and Development (also known as the Rio Summit, Rio Conference and Earth Summit), produced a declaration that made scant reference to human rights, affirming only that ‘[human beings] are entitled to a healthy and productive life

29

30

31 32

These are the African Charter on Human and People’s Rights, Art 24, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’) 17 Nov 1988, oas Treaty Series No 69; 28 ilm 156 (1989), Art 11. Though it does note have the same ‘hard law’ status, the 2012 asean Human Rights Declaration also recognizes, it its Art 28, the ‘right to a safe, clean and sustainable environment.’ The only international human rights treaty to make explicit reference to aspects of environmental protection is the un Convention on the Rights of the Child, 20 November 1989, 1577 unts 3, Art 24. Dinah Shelton, ‘Environmental Rights’, in Philip Alston (ed) People’s Rights, (Oxford: ­Oxford University Press 2001) 185, 194. Declaration of the un Conference on the Human Environment, 16 June 1972, un Doc. A/ CONF.48/14/Rev.1, 12 ilm 849 (1972).

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in harmony with nature.’33 Yet another two decades later in 2012, the outcome document to the Rio+20 Conference on Sustainable Development reaffirmed many first and second-generation rights, and once again affirmed the right to development, but when it came to a freestanding environmental right, noted only that ‘some countries recognize the rights of nature in the context of the promotion of sustainable development.’34 As a result of this lacuna in international law, international lawyers working at the nexus of human rights and the environment have often sought either to use procedural rights provided for under international human rights law (such as rights to information and participation) to effect environmental protections,35 or to derive environmental protections from established rights to life, health and privacy.36 One of the limitations of such approaches, of course, is that unlike a freestanding R2E, if we require individuals to wait until the environment has degraded to the point where it seriously threatens the right to (human) life, it may be too late for both people and their environment, assuming that notoriously complex issues of causation can be worked out in the first place. Such approaches to securing environmental protection are also unabashedly anthropocentric, and may not protect the environment in the case of species loss, habitat loss or pollution not deemed a threat to human life. With these clear weaknesses in internationally guaranteed protections, it is worth noting that some kind of environmental duty is present in nearly every national constitution adopted or revised in since 1970, though judiciaries differ on whether the right is considered justiciable.37 Crosscutting Issues and Controversies with the R2D and the R2E Human rights are part of a dynamic and adaptable tradition, and the existing treaties express less monolithic coherence than a pluralistic and heterogeneous blend of values, ideas and philosophies. It is perhaps then unsurprising that architects of the modern international human rights system, including 33

Rio Declaration on Environment and Development, 14 June 1992, A/CONF.151/26 (Vol i.) 8, 31 ilm (1992) 881. 34 Rio+20 un Conference on Sustainable Development, Outcome of the Conference, The Future We Want, 27 July 2012, ga Res. 66/288 (Annex), un Doc. A/Res/66/288, para 39. 35 Shelton (n 31) 198–213. 36 See, e.g., Melissa Fung, ‘The Right to a Healthy Environment: Core Obligations Under the International Covenant of Economic, Social and Cultural Rights’ (2006) 14 Willamette Journal of International Dispute Resolution 97; Sumudu Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law’ (2002–2003) 16 Tulane Environmental Law Journal 98. 37 Shelton (n 31) 236.

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­ leanor Roosevelt, foresaw the inevitability and importance of demands for E new rights.38 Yet almost across the board, third-generation rights have succeeded in generating more contentiousness than consensus, and the R2D and the R2E are no exceptions. At one level, this is hardly surprising. Every generation of rights has produced controversy, including the most basic notions of human (or ‘natural’) rights that Jeremy Bentham famously described as ‘nonsense upon stilts.’39 Much of the historic opposition in each era has come from the dominant power interests of the day. Examples of this can be seen in the fierce debates surrounding the right to self-determination in the 1950s and 1960s – which many western lawyers saw as incoherent and non-justiciable – and the opposition of conservative and neoliberal political interests in the us to the concept of economic and social rights. However, if human rights are not static, and if trying to create new rights should not be viewed as akin to rewriting the Bible or Koran,40 one must also surely acknowledge, as the critics of third-generation rights are wont to do, that not everything good or desirable is a right.41 The proliferation of rights claiming and framing in the 1980s and 1990s caused some to wonder whether rights talk had not become the ‘hegemonic discourse of emancipation,’ with too many activists trying to fit round pegs better suited for the political and economic marketplace into the square holes of human rights.42 One might look to the example of the World Tourism Organisation’s proposal for an internationally recognized ‘right to tourism’ as a particularly silly example of this phenomenon.43 However, while proposals for new rights undoubtedly need some ‘quality control,’44 the R2D and the R2E can hardly be said to fall into the frivolous category. Indeed, given the suffering inflicted by radical poverty, inequality and environmental devastation, it would not be going too far to say 38

39

40 41 42 43 44

M. Glen Johnson, ‘The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights’ (1987) 9 Human Rights Quarterly 19, 36. Jeremy Bentham, The Collected Works of Jeremy Bentham: Rights, Representation and Reform: Nonsense upon Stilts and Other Writings on the French Revolution, Philip Schofield, Catherine Pease-Watkin and Cyprian Blamires (eds) (Oxford: Oxford University Press, 2002) 317. Alston, ‘Conjuring up New Rights’ (n 21) 609. Donnelly (n 12) 483. See David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights Journal 101, 108–109. Philip Alston, ‘Peace as a Human Right’ (1980) 11 Security Dialogue 322. See generally, Alston, ‘Conjuring up New Rights’ (n 21).

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that we are dealing with true survival rights that likely would have long been understood as preemptory norms of international law were the guardians at the international legal temple forced to walk a mile of the shoes of those deprived of them. Nevertheless, even if the gravity of the underlying threats to human security is recognized, one must confront charges that have dogged the R2D and the R2E that they are hopelessly vague, non-justiciable, and unenforceable.45 As regards charges of vagueness, even its staunchest partisans would be hard pressed to argue that the Declaration on the Right to Development is characterised by an exuberance of legal precision. Like so many documents produced by the un, it is the result of compromise and legal sausage making, and in some ways merely encodes rather than reconciles the heterogeneous and contradictory impulses and political goals of its drafters. Yet if mere vagueness were the test of whether a right ought to be considered a ‘real right,’ then one is forced to acknowledge that many recognised rights whose status as lex lata is beyond dispute – ranging from the right to be free from cruel, inhuman and degrading treatment, to the right to education, to the right to self-determination outside of the colonial context – appear almost hopelessly vague based on the text, and often also in practice. And indeed, the same is true for the national constitution of the us, where phrases like ‘cruel and unusual punishment’ and ‘unreasonable searches and seizures’ are still being worked out well over 200 years after the rights in question were first articulated. Many such ‘vague’ rights might well have been regarded as ‘non-justiciable’ if we had not given judiciaries the chance to work through their meaning and applicability in the context of actual concrete cases and controversies. Where such rare opportunities have been presented in the case of third-generation rights, such as the serac case where the African Commission on Human and People’s Rights found that Nigeria had violated the right to a healthy environment under Article 24 of the African Charter, or the Endorois case where the same Commission found that the government of Kenya had violated the right to development under Article 22 of the African Charter, judiciaries have risen to the task.46 One can also look to claims of non-justiciability surrounding economic and social rights that have been steadily undermined by the work of the 45 46

See, Donnelly (n 12) 483. Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/ Center for Economic and Social Rights v. Nigeria), Case No. ACHPR/COMM/A044/1, 27 May 2002; Decision Regarding Communication 276/03 (Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of Endorois Welfare Council)/Kenya), 25 November 2009.

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Constitutional Court of South Africa as well as many others.47 Thus, one might say that claims of ‘non-justiciability’ are in many instances more of a political and ideological construct and argument than an objective fact.48 If we confront the question of the ‘non-enforceability’ of the R2D and the R2E, there too one must acknowledge that this is a defect of almost all international human rights law, which lacks a centralised judiciary and executive body. And as Lauterpacht observed long ago, ‘the existence of a right and the power to assert it by judicial process are not identical.’49 Otherwise, governments could always argue that unenforceability undercuts the existence of a right by simply denying formal means of enforcement, thereby conjuring away the basis for claims to the existence of the right itself. Thus, as Jeanne Woods has noted, one should be wary of legal dichotomies such as legal/moral, justiciable/non-justiciable, and enforceable/non-enforceable as they often operate to mask prevailing power relations, pushing some issues of concern into the legal foreground, and others into the background, while asking us to imagine that such distinctions are naturally occurring.50 To be clear, if rights are to be more than paper promises, concerns about vagueness, justiciability are enforceability are hardly irrelevant. But in the case of the R2D, for example, the underlying problem appears to be less that it cannot be concretized or is not susceptible to judicial determination than the fact that the ‘international community’ simply does not agree on the content of the right that is to be enforced. In other words, debates about vagueness, justiciability and enforceability are often debates about substantive content and consensus in drag. As Bonny Ibhawoh has pointed out, many leaders in the Global South have sought to use the R2D as both a sword and a shield, claiming a collective right to challenge a hegemonic international economic system controlled by the Global North, while asserting national sovereignty to maintain the status quo at home,51 including by denying other human rights in the name of development.52 Yet for many in the Global North, the R2D is understood to require change in national-level governance in the South, including various ‘good governance’ and economic liberalisation reforms, even as suggestions 47 48 49 50 51 52

See generally Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008). Woods (n 10) 198. Hersch P. Lauterpacht, ‘The Subjects of the Law of Nations’ (1947) 63 Law Quarterly Review 438, 455. Woods (n 10) 181. Ibhawoh (n 25) 78. Anne Orford, ‘Globalization and the Right to Development’ in Philip Alston (ed) People’s Rights (Oxford: Oxford University Press, 2001) 127, 133.

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that changes in the international order might also be required are steadily resisted. Thus, in many ways the impasse in the debate surrounding the R2D has served to insulate and legitimise status quo power in both North and South.53 The problem, of course, is that change in both domestic and international orders is required if the R2D is to be realised, and finger pointing in both North and South can hardly move the needle forward. The Declaration on the Right to Development clearly contemplates that the right has both collective and individual dimensions, with positive and negative obligations for a range of actors at the micro, meso and macro levels. Thus, lost in both interpretations is a more balanced, yet also radical and counter-hegemonic view that would see in the R2D both a means of challenging international barriers to development – rigged trade rules, neoliberal economic orthodoxy and many others – and the right of individuals to demand things from multiple levels of governance – ­participation, transparency, lack of corruption, equitable access to the fruits of development, and so forth.54 As will be discussed in the following section, the implications of a broader view of rights bearers and duty holders are ­revolutionary from the standpoint of mainstream human rights thinking and practice, yet vital not only to the goals inherent in the R2D, but to the future of human rights in a globalised world as well. ii

Why More Vigorous Engagement with Third-Generation Rights Matters

It has now been almost thirty years since the Declaration on the Right to Development was adopted and sadly, the R2E does not even yet have a declaration of its own to debate. Yet while the legal and political stalemate over the status of these rights has persisted, the pace of globalisation has accelerated, generating both winners and losers to be sure, but also altering the frameworks and power structures under which the human rights regime initially evolved. In this section, I set forth my argument that stronger engagement with thirdgeneration rights, including the R2D and the R2E, is critical to the future of human rights because: (1) they can help to address grave threats to human security in the changing landscape of the twenty-first century; (2) they challenge traditional conceptual boundaries of human rights law that may help push the field forward in ways better adapted to a globalised world; and (3) forging 53 54

Ibhawoh (n 25) 79. See Balakrishnan Rajagopal, ‘Right to Development and Global Governance: Old and New Challenges Twenty-Five Years On’ (2013) 35 Human Rights Quarterly 893, 899–900.

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greater ­consensus around the meaning and significance of third-generation rights would help further a sense of human rights as a shared global project. Addressing Twenty-First Century Realities Though a gross oversimplification, one could see the various generations of rights as a sort of defence mechanism to some of the most pressing threats of the day: in first-generation rights an effort to protect humans from the weight of the leviathan, the potential tyranny of the state; and in second-generation rights a buffer against bare-knuckled industrial capitalism. Following this line, the third generation might be seen to address threats to collective human survival itself that seem to elude the protections offered by earlier generations of rights: radical poverty and inequality, economic violence, global warming and ecological collapse. Of course, this is hardly a new claim, and indeed arguments that third-­ generation rights were necessary to respond to ‘emerging threats’ were forcefully made during the first wave of debates about these rights in the early 1980s.55 Yet, if anything, the intervening years have only proved just how prescient those fears were, for the emerging threats of the early 1980s are the realities of today: climate change, for example, is no longer the abstraction that is was 35 years ago;56 fish stocks are dwindling, raising the possibility of a ‘global collapse’ as soon as mid-century;57 species are being driven to extinction at an unprecedented rate, with the Earth having lost half its wildlife in the last forty years;58 and the parade of horribles seemingly goes on and on. It goes without saying that environmental collapse would have (and in fact is having) catastrophic effects on human beings – particularly the most poor and vulnerable, undermining all of the rights to which they are entitled under international law. If we take the infamous example of oil extraction in Ogoniland in Nigeria,59 we see that that the environment itself can become so degraded as to threaten enjoyment of rights to life and health; aggressive, profit-driven 55 56 57 58 59

Stephen Marks, ‘Emerging Human Rights: A New Generation for the 1980s?’ (1980–1981) 33 Rutgers Law Review 435, 440. See Intergovernmental Panel on Climate Change, Fifth Assessment Report (AR5), available at http://www.ipcc.ch/report/ar5/index.shtml (last visited 10 Feb 2017). Cornelia Dean, ‘Study Sees “Global Collapse” of Fish Species’, The New York Times, 3 Nov 2006. ‘The Earth Has Lost Half of Its Wildlife in the Past 40 Years, Says wwf’, The Guardian, 30 Sept 2014. See generally Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities (New York: Human Rights Watch, 1999).

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d­ evelopment at any cost can cause environmental problems; and all of this creates a political powder keg in which civil and political rights abuses are likely to be rampant. Thus, all generations of rights exist in a tight nexus, can rightly be seen as indivisible and must be pursued in harmony with each other. Even with this, one could still argue, as many have, that third-generation rights like the R2D are essentially synthetic rights that simply compile existing first and second-generation commitments. Under this view, third-generation rights have little new to offer when it comes to facing the challenges of twentyfirst century globalization since the underlying harms are sufficiently captured by earlier generations of rights. While a fuller response to this argument is provided in the following section, as an initial response, one should note that the re-framing offered by newly articulated rights is important. Just as the Pope’s 2015 encyclical helped some constituencies to understand climate change as not just a scientific or political but a moral and spiritual question,60 the R2D and the R2E help to situate the broad issue of human rights in context of poverty and planetary survival, and simultaneously help to frame those issues as questions of justice rather than charity or open-ended policy. The re-framing that comes with understanding questions of development and the environment as human rights issues might thus further underscore the imperative of actually doing something about them. Rights framing also helps to provide important directive principles to policy by emphasising that when it comes to pursuing solutions to environmental problems, for example, there are limits to the economic cost-benefit trade-off analysis that may have helped to create part of the problem the first place.61 It is intriguing to imagine, for example, what a future round of climate change talks might look like if the bargaining took place in the shadow of an internationally recognized human right to a healthy environment. Or what might a future round of wto trade negotiations look like if the R2D were accepted by all as a ‘real right,’ requiring that all international barriers to development be removed? If these seem like idealistic propositions, it is useful to recall that all human rights would have seemed equally utopian as early as 70 years ago. Finally, one should note that historically, giving meaningful content to rights has depended more on the work of activists and their networks than 60 61

Encyclical Letter Laudato Si’ of the Holy Father Francis On Care for Our Common Home, 24 May 2015. Stephen Gardiner, ‘Human Rights in a Hostile Climate’, in Cindy Holder & David Reidy (eds) Human Rights; The Hard Questions (Cambridge: Cambridge University Press, 2013) 211, 215.

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government officials. More explicitly articulated rights can be tremendously empowering to those suffering deprivations, or advocating in these domains. Campaigners attempting to block action based on violations of a freestanding R2E, for example, may be in a stronger position than those today who are limited to trying to shoehorn environmental protections into existing rights to life and privacy. Adapting Human Rights to a Globalised World The traditional human rights regime is based on a formally positivist conception of rights as grounded in legal texts and a global order in which each state serves as the primary duty bearer, with duties flowing to individuals within its territory. Violations can occur though acts and omissions, with states having a duty to respect, protect and fulfil the rights in question. There are at least two problems with this narrow traditional view. First, if to some lawyers a right is a right only when the un says so in a treaty, we must nevertheless acknowledge that, in the minds of many, rights still oscillate between positive and natural law, the legal and the moral, political constructs and something higher. It is the very fact that rights are grounded in both of these realms that accounts for the power of Henkin’s ‘idea’ of human rights. Second, from the perspective of a rights holder or rights claimant, it hardly matters whether it is a single state that does the violating, a rapacious corporation, or a group of states acting collectively through the World Bank. This is especially poignant when we consider that globalisation has made a mockery of the state-based foundation on which the rights regime was built, and a range of actors and entities, many of them beyond the reach of any single state, now hold sway over whether individuals will in fact be able to enjoy their internationally guaranteed rights.62 Problems relating to development and the environment are, more than ever, fundamentally trans-boundary dilemmas unrestricted to the confines of any one individual nation state, both in terms of drivers and solutions. Thus, if actual enjoyment of human rights is the goal, conventional positivist human rights law and discourse is in many ways illsuited to the realities of a globalised world.63 In contrast, third-generation rights such as the R2D and the R2E generally embrace more expansive notions of rights holders, duty bearers and territorial obligations, asking us to take a broader and more ‘purposive’ approach

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Rajagopal (n 54) 895. Ibhawoh (n 25) 100.

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to understanding the traditional positivist framework.64 Rights holders are ­therefore not exclusively individuals, but include communities; duty bearers are not limited to the state acting individually, but are extended to states acting collectively through international organisations such as the World Bank and the wto; and more expansive notions of territorial obligations mean that all states have a collective responsibility to address rights to development and to the environment, even where a policy decision taken in state A has negative effects on rights holders who happen to live in state B. Responsibilities transcend borders because threats to human rights transcend borders. In this way, third-generation rights serve to capture not just the micro and meso, but also the macro dimensions of harms, including the international and collective dimensions of harms in ways that earlier generations of rights manage to do only clumsily, if at all. This is important because traditional conceptions of human rights tend to reflect a foundational assumption of an individual perpetrator. As Tony Evans has noted, this is more than a question of individualism and communitarianism; rather it represents a blindspot to the possibility that the cause of many violations may be rooted in the larger socioeconomic order itself, an order created and enforced by national and global regulatory regimes.65 Thus, the R2E and the R2D force us to recognize that pollution does not respect international boundaries and cannot be addressed solely at a national or individual level; development can only happen with concerted international and national efforts to eliminate barriers to development, including, to name only a few, those created by the international trade regime, policy strictures of the World Bank and the International Monetary Fund, and international money laundering that facilitates corruption. It might therefore be said that this more expansive conception of rights maps onto the expansive realities of globalisation, serving to remind us of aspects of human rights protection that are ‘in danger of being forgotten and discarded,’ including individual and collective rights, national and interstate behaviour, together with the ever increasing importance of international organisations as architects of global governance.66 If the expansiveness of thirdgeneration rights raises hard questions about how to actualise these extended concepts of rights and duties, these are surely questions worthy of intensified 64

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Adam McBeth, ‘What do Human Rights Require of the Global Economy?’ in Cindy Holder & David Reidy (eds) Human Rights; The Hard Questions (Cambridge: Cambridge University Press, 2013) 153, 154–162. Evans (n 3) 183. Orford (n 52) 172. See also Chapters 6 and 7 in this volume on the increasing and changing role of international organisations.

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examination and debate. Such debates might examine, for example, the merits of further developing radically extended conceptions rights holders and duty bearers, as opposed to or in addition to an enhanced understanding of the duty of individual states not just to ‘respect’ the R2D and R2E in a more direct and limited sense, but to more robustly ‘protect’ their inhabitants from actions taken by corporations, international organisations, and a host of non-state actors that impact their ability to effectively enjoy such rights.67 In reinvigorating this discussion, third-generation rights might serve as the crucible in which the dilemmas and limitations of human rights in a globalised world might be reconciled, or at least confronted more seriously. Furthering a Sense of Human Rights as a Shared Global Project If Vasak was correct that first-generation rights arose in large part out of two liberal, bourgeois revolutions (French and American), and the second generation arose out of a socialist revolution, then third-generation rights, and particularly the R2D, represent in a sense an attempt and an opportunity for the developing or ‘third’ world to make its own lasting contribution to the ­human rights corpus. Such a contribution could be viewed to include the substantive protections contained in the Declaration on the Right to Development, ­including a right to participation in development, a right to an equitable ­distribution of the benefits of development, a right to removal of barriers to development – both domestic and international – and so forth. However, in a broader sense this contribution calls upon us to grapple with the deeper notions of shared responsibility and solidary inherent in most third-generation rights, and to re-appraise the balance required between liberté, egalité, and ­fraternité in the realization of all human rights. Such notions might be seen to present a challenge to the more libertarian and individualistic strands of some western ideologies. Yet these ideas are hardly alien to the established human rights cannon. The udhr, for example, provides that ‘[e]veryone has duties to the community in which alone the free and full development of his personality is possible,’68 and that ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’69 The icescr provides that economic and social rights must be progressively realised both ‘individually and through international assistance and co-operation.’70 Under the un 67 68 69 70

See Chapter 8 in this volume dealing with some aspects of this issue. udhr (n 8) Art 29. Ibid, Art 28. icescr (n 17) Art 2(1).

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­Charter, all members have pledged to take ‘joint and separate action’ to promote ‘conditions of economic and social progress and development’ and ‘universal respect for, and observance of, human rights.’71 Third-generation rights might therefore be seen as partial elaborations of these established principles, which have otherwise been given short shrift in international law. Moreover, if expanded notions of duty and solidary create controversy in the minds of some,72 grappling with the third-generation rights that embrace these conceptions might, over time, help reconcile mainstream human rights with non-western legal traditions because many of them contain a robust jurisprudence of rights and duties unconstrained by narrower western models.73 In this way, third-generation rights might come to evoke notions of human rights as ‘hybridity,’74 and open the door to developing a more heterogeneous, mosaic and cosmopolitan theory and praxis of human rights. In the long run, a greater sense of shared authorship of the human rights corpus has serious implications for human rights compliance across all generations of rights. As Abdullahi An-Na’im has noted, ‘so long as there is a perception of exclusive western authorship of the concept of human rights and its normative implications,’ the human rights movement will not be effective.75 Similarly, if the human rights regime is not seen as being relevant to the threats arising in a globalised world or otherwise less than fully preoccupied with the concerns facing all of humanity, how should it be expected to generate adequate ‘compliance pull’ and help create enthusiastic global ‘compliance constituencies’? In this sense, re-appraising the significance of third-generation rights is fundamentally about strengthening the legitimacy of the human rights regime as a global project. Many human rights lawyers appear to be stuck in a top-down, rights-aslaw, enforcement mind-set. From this perspective, the question of compliance 71 72 73

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Charter of the un, 24 Oct 1945, 1 unts xvi, Arts 55 & 56. See, e.g., Carl Wellman, ‘Solidarity, the Individual and Human Rights’ (2000) 22 Human Rights Quarterly 639. See generally, Jason Morgan-Foster, ‘Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement’ (2005) 8 Yale Human Rights and Development Journal 67. See generally, Rosa Freedman, ‘“Third Generation” Rights: Is There Room for Hybrid Constructs within International Human Rights Law?’ (2013) 2 Cambridge Journal of International and Comparative Law 935. Abdullahi An-Na’im, ‘Human Rights and the Challenge of Relevance: The Case of Collective Rights’ in Monique Castermans-Holleman et al (eds) The Role of the Nation-State in the 21st Century: Human Rights, International Organizations, and Foreign Policy (Leiden: Brill-Nijhoff, 1998) 3, 7.

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becomes one of strengthening formal human rights institutions and enforcement machinery with the aim of endowing them with some teeth. While these are indeed important questions for the future of human rights, we also have to think about how to create a sense of global ownership and trans-­civilizational legitimacy that may eventually lead to greater norm internalization.76 As Jeanne Woods notes, maybe we should think less about enforcement in a narrow legal sense, and more about holistic operationalization of human rights.77 While third-generation rights are no guarantee that any of this – whether enforcement or operationalization – can be achieved, they might nevertheless be seen as a critical injection of ideas into a stale compliance debate. iii

Looking Forward: Conflicts and Synergies

Greater engagement with third-generation rights, including the R2D and the R2E is hardly a panacea, and can be expected to generate, at least in the short term, further conflict and hard questions. As is painfully clear, adoption of the Declaration on the Right to Development did not indicate that consensus was achieved as to the meaning and scope of the right, myriad subsequent re-­ affirmations of the Declaration notwithstanding. At the same time, progress on R2D cannot be made unless the right is acceptable in North and South, or at least until a greater degree of consensus is achieved.78 This will be no easy task. Third-generation rights are informed by but also challenge dominant ideologies. They have been used by those in power, North and South, to preserve the status quo, and all governments might consider that they have something to lose from more progressive interpretations of the R2D. Thus, greater engagement with and even acceptance of third-generation rights will not change the fact that they have been and will continue to be a terrain for moral, legal, political and ideological contestation. If the power struggle starts with whether the right ‘exists,’ it then continues into skirmishes over interpretation and whether such a right should be ensconced in ‘hard law’ form. Rights can be framed narrowly or broadly, and the law’s redemptive power and its service to power play out in complex ways in and through them. For example, the international community might forge consensus on the existence 76

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For a brief overview of the theory of transnational legal process and norm internalisation, see generally Harold H. Koh, ‘Transnational Legal Process After September 11th’ (2003– 2004) 22 Berkeley Journal of International Law 337. Woods (n 10) 230. Atapattu (n 36) 122.

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on the R2E, but in ways that are so anthropocentric as to only capture the proverbial tip of the (melting) iceberg of environmental harm. The Global North might come to accept the R2D in more genuine fashion, but in ways that reduce it to a narrow individual entitlement more in keeping with other human rights.79 While such an interpretation might be useful for advocates fighting local development policies or corrupt practices that inhibit development, it might nevertheless fail to capture the broader collective and trans-boundary harms. One should not therefore assume that the R2D and R2E will necessarily be synonymous with ‘economic justice’ and ‘environmental justice.’ Even if greater consensus is forged, it will always be important to ask ‘whose development’ and ‘whose environment’ is really being protected by the rights in question. Yet another reason for more sustained engagement with third-generation rights is that in forging greater consensus as to their content and scope, such rights need to be considered in interaction with one another. This is particularly true of the R2D and the R2E. As Balakrishnan Rajagopal has pointed out, to the extent that the R2D is conflated with ceaseless accumulation, consumption and growth, it is quite simply unsustainable, and would certainly appear to be in tension with the R2E.80 Thus, it is clear that the R2D as articulated almost thirty years ago needs to be ‘rethought without being abandoned.’81 Some have pointed to the concept of ‘sustainable development’ as a way to bridge tensions between the R2E and the R2D,82 yet it should also be said that more equitable sharing of the environmental burdens of development, especially as regards climate change, cannot be overlooked.83 Of course, conflict and balance between rights is certainly nothing new. If ‘characterizing something as a human right elevates it above the rank and file competing societal goals,’84 courts are nevertheless regularly called upon to balance things like freedom of expression in view of other human rights commitments. This is yet then another reason where the evolution of third-generation rights would benefit from allowing judiciaries to develop a jurisprudence over time. 79 80 81 82 83

84

Philip Alston, ‘“Peoples” Rights: Their Rise and Fall’, in Philip Alston (ed) People’s Rights (Oxford: Oxford University Press 2001) 259, 292. Rajagopal (n 62) 908. Ibid, 894. Atapattu (n 36) 125. un Human Rights Council, Working Group on the Right to Development, ‘Report of the High-level Task Force on the Implementation of the Right to Development on its Sixth Session,’ A/HRC/15/WG.2/TF/2/Add.2, 2 March 2010, 9. Philip Alston, ‘Making Space for New Human Rights: The Case for the Right to Development’ (1988) 1 Human Rights Yearbook 3, 4.

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Conclusion

Even if its precise meaning proves confounding today, the right to self-­ determination was one of the great organising principles of the post-wwii decolonisation process.85 It is intriguing to imagine a century in which thirdgeneration rights – including the R2D, the R2E and, though it has not been discussed in this chapter for reasons of space, the right to peace – operated as similar directive principles for national and international policy. Yet it is hard to imagine them doing so if they are not firmly recognised as rights, even if such recognition is hardly a sufficient condition for their fruition. The need to check pathologies of power in the twenty-first century includes torture and many classic human rights violations, as mass killings and the resurgence of muscular authoritarianism make all too clear, yet must also be seen to include things like pollution, climate change and an international trade and financial system that seems systemically biased against the poorest and most vulnerable. These are true forms of violence legitimated by states, international organisations and the regulatory regimes that they create and (selectively) enforce, not volcanoes, earthquakes or other forces of nature beyond our control.86 In thinking about these challenges and the world that globalisation is bringing into existence, human rights advocates need to ask themselves whether the existing body and theology of human rights is really up to the task of protecting human dignity and security, of promoting true social justice in the twentyfirst century. It may well be that globalisation cannot be ‘tamed’ by a paradigm that fails to capture and contest the deeper, collective, economic and structural biases at play.87 Human rights were once seen as subversive, a challenge to the dominant order of the day. Yet if rights are now both more mainstream while remaining impotent, it must be asked whether they are not, in a sense, constitutive of the dominant order.88 Any normative regime that helps to legitimise or render invisible the violence inherent in such an order might well be considered ‘part of the problem.’89 Now more than ever we need to renew and reinvigorate the global project of human rights, providing activists with 85 86 87 88 89

Roland Rich, ‘Solidarity Rights Give Way to Solidifying Rights’ (2002) 21 Dialogue 25, 28. See note 5 regarding the directness and intentionality undergirding many forms of economic violence. Rajagopal (n 62) 896. See generally Nicola Perguini and Neve Gordon, The Human Right to Dominate (Oxford: Oxford University Press, 2015). See generally, Kennedy (n 42).

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the means to challenge exploitation and inequality in all its evolving forms.90 The time has come to take third-generation rights seriously. Bibliography Alston, Philip, ‘“Peoples” Rights: Their Rise and Fall’, in Philip Alston (ed) People’s Rights (Oxford: Oxford University Press 2001) 259. Alston, Philip, ‘Conjuring up New Rights: A Proposal for Quality Control’ (1984) 78 The American Journal of International Law 607. Alston, Philip, ‘Making Space for New Human Rights: The Case for the Right to Development’ (1988) 1 Human Rights Yearbook 3. Alston, Philip, ‘Peace as a Human Right’ (1980) 11 Security Dialogue 322. An-Na’im, Abdullahi, ‘Human Rights and the Challenge of Relevance: The Case of Collective Rights’ in Monique Castermans-Holleman et al (eds) The Role of the NationState in the 21st Century: Human Rights, International Organizations, and Foreign Policy (Leiden: Brill-Nijhoff, 1998) 3. ASEAN, ASEAN Human Rights Declaration, 18 Nov 2012. Atapattu, Sumudu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law’ (2002– 2003) 16 Tulane Environmental Law Journal 98. Bentham, Jeremy, The Collected Works of Jeremy Bentham: Rights, Representation and Reform: Nonsense upon Stilts and Other Writings on the French Revolution, Philip Schofield, Catherine Pease-Watkin & Cyprian Blamires (eds) (Oxford: Oxford University Press, 2002). Dean, Cornelia, ‘Study Sees “Global Collapse” of Fish Species’, The New York Times, 3 Nov 2006. Declaration of the United Nations Conference on the Human Environment, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1, 12 ILM 849 (1972). Declaration on the Right to Development, 4 Dec 1986, GA Res. 41/128 (Annex), UN Doc A/41/53 (1987). Donnelly, Jack, ‘In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development’ (1985) 15 California Western International Law Journal 473. Encyclical Letter Laudato Si’ of the Holy Father Francis On Care for Our Common Home, 24 May 2015. Evans, Tony, ‘Universal Human Rights in the Global Political Economy’ in Cindy ­Holder & David Reidy (eds) Human Rights; The Hard Questions (Cambridge: Cambridge University Press, 2013) 174. 90

Orford (n 52) 183.

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Franck, Thomas M., The Power of Legitimacy among Nations (New York: Oxford University Press, 1990). Freedman, Rosa, ‘“Third Generation” Rights: Is There Room for Hybrid Constructs within International Human Rights Law?’ (2013) 2 Cambridge Journal of International and Comparative Law 935. Fukuyama, Francis, The End of History and the Last Man (New York: Avon Books, 1992). Fung, Melisaa, ‘The Right to a Healthy Environment: Core Obligations Under the International Covenant of Economic, Social and Cultural Rights’ (2006) 14 Willamette Journal of International Dispute Resolution 97. Galtung, Johan, ‘Violence, Peace, and Peace Research’, (1969) 6 Peace Research 167. Gardiner, Stephen, ‘Human Rights in a Hostile Climate’, in Cindy Holder & David Reidy (eds) Human Rights; The Hard Questions (Cambridge: Cambridge University Press, 2013) 211. Henkin, Louis, The Age of Rights (New York: Columbia University Press, 1990). Hopgood, Stephen, The Endtimes of Human Rights (Ithaca, NY: Cornell University Press, 2014). Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities (New York: Human Rights Watch, 1999). Ibhawoh, Bonny, ‘The Right to Development: The Politics and Polemics of Power and Resistance’ (2011) 33 Human Rights Quarterly 76. Intergovernmental Panel on Climate Change, Fifth Assessment Report (AR5), available at http://www.ipcc.ch/report/ar5/index.shtml (last visited 10 Feb 2017). Johnson, M. Glen, ‘The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights’ (1987) 9 Human Rights Quarterly 19. Kennedy, David, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights Journal 101. Koh, Harold H., ‘Transnational Legal Process After September 11th’ (2003–2004) 22 Berkeley Journal of International Law 337. Koskenniemi, Martti, The Gentle Civilizer of Nations; The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2004). Langford, Malcolm (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008). Lauterpacht, Hersch P., ‘The Subjects of the Law of Nations’ (1947) 63 Law Quarterly Review 438. Macklem, Patrick, ‘Human Rights in International Law: Three Generations or One?’ (2015) 3 London Review of International Law 61. Marks, Stephen, ‘Emerging Human Rights: A New Generation for the 1980s?’ (1980– 1981) 33 Rutgers Law Review 435.

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McBeth, Adam, ‘What do Human Rights require of the Global Economy?’ in Cindy Holder & David Reidy (eds) Human Rights; The Hard Questions (Cambridge: Cambridge University Press, 2013) 153. Morgan-Foster, Jason, ‘Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement’ (2005) 8 Yale Human Rights and Development Journal 67. Moyn, Samuel, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010). Mutua, Makau and Anghie, Antony, ‘What is TWAIL?’ (2000) 94 Proceedings of the Annual Meeting (American Society of International Law). Office of the United Nations High Commissioner for Human Rights, Realizing the Right to Development: Essays in Commemoration of 25 Years of the United Nations Declaration on the Right to Development, HR/PUB/12/4 (2013). Orford, Anne, ‘Globalization and the Right to Development’ in Philip Alston (ed) People’s Rights (Oxford: Oxford University Press, 2001) 127. Paupp, Terrence E., Redefining Human Rights in the Struggle for Peace and Development (Cambridge: Cambridge University Press, 2014). Perguini, Nicola and Gordon, Neve, The Human Right to Dominate (Oxford: Oxford University Press, 2015). Rajagopal, Balakrishnan, ‘Right to Development and Global Governance: Old and New Challenges Twenty-Five Years On’ (2013) 35 Human Rights Quarterly 893. Rich, Roland, ‘Solidarity Rights Give Way to Solidifying Rights’ (2002) 21 Dialogue 25. Rio Declaration on Environment and Development, 14 June 1992, A/CONF.151/26 (Vol I.) 8. Rio+20 United Nations Conference on Sustainable Development, Outcome of the Conference, The Future We Want, 27 July 2012, GA Res. 66/288 (Annex), UN Doc. A/ Res/66/288. Shelton, Dinah, ‘Environmental Rights’, in Philip Alston (ed) People’s Rights, (Oxford: Oxford University Press 2001) 185. United Nations Human Rights Council, Working Group on the Right to Development, ‘Report of the High-level Task Force on the Implementation of the Right to Development on its Sixth Session,’ A/HRC/15/WG.2/TF/2/Add.2, 2 March 2010. Vasak, Karel, ‘A 30-Year Struggle’, UNESCO Courier, November 1977. Vasak, Karel, ‘Pour une troisème generation des droits de l’homme’, in C Swinarski (ed) Studies and Essays on International Humanitarian Law and Red Cross Principles (The Hague: Martinus Nijhoff, 1984) 837. Wellman, Carl, ‘Solidarity, the Individual and Human Rights’ (2000) 22 Human Rights Quarterly 639. Woods, Jeanne, ‘Theorizing Peace as a Human Right’ (2013) 7 Human Rights & International Legal Discourse 178.

Part 2 Human Rights and Power of States in Context

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chapter 3

Sovereignty as Responsibility at the International Criminal Court: The Frontiers of International Judicial Intervention Emanuela Piccolo Koskimies Abstract This chapter enquires into the increasingly popular idea of sovereignty as responsibility, focusing on its institutionalisation in the framework of the International Criminal Court (icc). The claim that a new norm of sovereignty as responsibility is on the rise is commonly framed within normative parameters. Conversely, here it is assumed that norms (and their critical potential) must be subjected to the constraint of ‘ought implies can’, and the main aim is precisely to map how environmental and operational conditions enable or limit normative change. Operating at the intersection between normative international political theory and the politics of international criminal law, the analysis unfolds in three major steps: it revises the theoretical foundations of the debate; it explores how the system set up by the icc Statute bears upon the Court’s prosecutorial policy and its outcomes; it determines how the latter feed back to the norm of sovereignty as responsibility. The chapter concludes that the icc Statute is built on a basic tension – between ‘sovereignty-limiting’ rationale and ‘sovereigntybased’ operation. Such tension reflects the persistence of the state as the primary site of political authority and agency, and leaves the icc ill-equipped to break with a notorious pattern of hyper-protected macro-sovereignty. Yet, the chapter contends that the desirability of a further move to political hierarchy should be considered in light of the relationship that arguably connects any forms of agency to power and the permanent possibility of its irresponsible exercise.

* Ph.D. Candidate, University of Helsinki. ** I wish to thank Ekaterina Yahyaoui, editor of this volume, for her precious comments on the several drafts of this chapter, and the Critical Approaches to International Criminal Law (caicl) research cluster, especially Christine Schwobel-Patel and our extensive talks during my research visit at the University of Liverpool.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_005

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Keywords Agency – delegation – International Criminal Court – normative change political authority – sovereignty as responsibility

Introduction The considerable growth of human rights in the last decades has sparked competing claims of change and continuity with regards to the normative fabric of international society and, in particular, the status of sovereignty. A widespread account is that the end of the Cold War has reopened the door to the progressive organisation of international society along more cosmopolitan lines. Coupled with the arguable growth of globalisation that creates a more interconnected world, this process is expected to radically change the traditional understanding and place of sovereignty in international law. More specifically, it is presumed to re-characterise sovereignty in a way that ‘emphasizes the transcendent and universal character of obligations owed to human beings’.1 In 2001, the International Commission on Intervention and State Sovereignty (iciss) issued ‘The Responsibility to Protect’,2 a report that aimed to reframe international intervention by advancing the idea of sovereignty as responsibility. The same notion has been thereafter embraced by the un and other major international actors on several occasions. The idea of sovereignty as responsibility involves two main prongs: firstly, sovereignty is not an absolute right of governments, but, instead, is an earned right, based upon fulfilment of government’s responsibility to protect its people; and, when governments fail to protect people, a residual responsibility to protect befalls the international community. Yet, the report has argued, such recharacterisation of sovereignty as responsibility does not entail any ‘transfer or dilution of state sovereignty’.3 The Rome Statute, which led to the establishment of the International Criminal Court (icc) in 2002, similarly affirms that, if domestic courts fail to genuinely prosecute those guilty of genocide, crimes against humanity, war crimes, 1 Frédéric Mégret, ‘icc, R2P, and the International Community’s Evolving Interventionist Toolkit’, (2012) 21 Finnish Yearbook of International Law 21, 35. 2 iciss, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), available at http://www.responsibilitytoprotect.org/index.php/publications/core-rtop-documents (last visited 10 Feb 2017). 3 Ibid. para 2.14.

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the icc will prosecute them, with no exception for senior political, military and security officials.4 In other words, the common moral commitments of the ‘Responsibility to Protect’ doctrine (R2P) and the icc are clear:5 ‘the responsibilities to protect and prosecute reside first and foremost in the state, and both regimes insist that a residual responsibility rests with international society’.6 What is more, the icc is said to overcome the collective actor problem that hinders the implementation of R2P more in general. It is argued that, in the absence of specific agents officially entrusted with a broad responsibility to protect, intervention risks being mostly ‘contingent on a coincidence of major power interests’,7 as exposed by the current institutional deadlock in the Syrian situation. On the contrary, ‘international criminal justice has institutionalized the residual responsibility to prosecute, allocating it to the icc’,8 meant to supersede (or defer to) domestic jurisdictions according to the legal criteria set in the Rome Statute. Therefore, the icc is expected to ‘deliver concrete and impartial action’,9 thanks to prosecutorial decision-making unmarred by political interference and matched with the power to put real people in real jails, including representatives of state power. To the latter, indeed, the existence of the Court would be a reminder that they ‘are not above international law even in the manner with which they treat their own citizens.’10 As a result, the establishment of the Court has raised hopes that, finally, ‘the normative structure being created by international law might influence or even restrain the Hobbesian order established by the politics of States.’11

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Rome Statute of the International Criminal Court, 17 July 1998, 2187 unts 90 100–106 (Rome Statute). 5 Selena Lucent and Michael Contarino, ‘Stopping the Killing: The International Criminal Court and Juridical Determination of the Responsibility to Protect’ (2009) 1 Global Responsibility to Protect 560. 6 Jason G. Ralph, ‘The International Criminal Court’, in Alex Bellamy and Tin Dunne (eds) The Oxford Handbook on the Responsibility to Protect. (Oxford: Oxford University Press, 2016) 638. 7 Ibid. 8 Ibid. 9 Ibid. 10 Richard Falk, ‘Revisiting Westphalia, Discovering Post- Westphalia’ (2002) 6 The Journal of Ethics 311, 341. 11 Leyla N. Sadat, ‘The Evolution of the icc: From The Hague to Rome and Back Again’ in Sara B. Sewell and Carl Kaysen, (eds) The United States and the International Criminal Court: National Security and International Law (Lanham, Md; Oxford: Rowman and Littlefield Publishers, 2000) 31, 41.

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Even several years after the establishment of the icc, the proponents of the Court’s catalytic role still show a certain unconvincing remoteness of theoretical construction from the institution’s lived practice, and largely frame the debate within normative parameters.12 Conversely, only very few of the analyses that delve deeper into the practice of the Court13 are likewise interested in ­normative questions.14 The debate about the icc and sovereignty is thus paradigmatic of the ‘normative/empirical divide’ that hinders the study of ‘the international’ more broadly,15 that is to say the limited engagement of normative international theory, on the one hand, and empirical research, on the other,

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Gareth Evans, ‘R2P: The Next Ten Years’, in Alex Bellamy and Tin Dunne (eds) Oxford Handbook on The Responsibility to Protect (Oxford: Oxford University Press, 2016) 913; Ramesh Thakur and Thomas Weiss, ‘R2P: From Idea to Norm – and Action’ 2009 1 Global Responsibility To Protect 1. However, several observers have shown an increasing engagement with the practice of the Court. See, e.g., Patrick Hayden, ‘Political Evil, Cosmopolitan Realism, and the Normative Ambivalence of the International Criminal Court’, in Steven C. Roach (ed) Governance, Order and the International Criminal Court (Oxford: Oxford University Press, 2009) 157, in comparison to the earlier Patrick Hayden, ‘Cosmopolitanism and the Need for Transnational Criminal Justice: The Case of the International Criminal Court’ (2004) 51 Theoria: A Journal of Social and Political Theory 69. A similar trajectory is also noticeable in Ralph, on whose recent work (2016) this chapter indeed largely draws. Yet, the empirical focus of Ralph’s analysis remains primarily centred on the icc’s relationship with major powers. For a comparison with less recent work, see, e.g., Jason G. Ralph, ‘Anarchy is What Criminal Lawyers and Other Actors Make of it: International Criminal Justice as an Institution of International and World Society’, in Steven C. Roach (ed) Governance, Order and the International Criminal Court (Oxford: Oxford University Press, 2009) 133. For a critical reappraisal of the international criminal law (ilc) and the icc see Christine Schwöbel-Patel (ed) Critical Approaches to International Criminal Law. An Introduction (Oxford: Routledge, 2014). Adam Branch, ‘Neither Liberal nor Peaceful? Practices of “Global Justice” by the icc’, in S. Campbell, D. Chandler & M. Sabaratnam (eds) A Liberal Peace? The Problems and Practices of Peacebuilding (Place: Zed Books, 2011); Frédéric Mégret, ‘The Creation of the International Criminal Court and State Sovereignty: The “Problem of an International Criminal Law” Re-Examined’, in William V. Dunlap & R. John Pritchard. (eds) International Humanitarian Law: Prospects (Leiden: Martinus Nijhoff, 2006) 47; Mégret (n 1) 21; Sarah M. Nouwen, ‘Legal Equality on Trial: Sovereigns and Individuals before the International Criminal Court’ (2012) 43 Netherlands Yearbook of International Law 151. Heikki Patomäki, After International Relations. Critical Realism and the (Re)Construction of World Politics (London and New York: Routledge, 2002); Andrew Sayer, Why Things Matter to People: Social Science, Values and Ethical Life (Cambridge: Cambridge University Press, 2011).

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respectively with the relevant facts of the international legal order and the relevant normative questions.16 This chapter grafts itself precisely onto the intersection between normative international theory and the politics of international (criminal) law,17 in the attempt to hold ‘critical moral edge’ and ‘political focus’ in tension.18 The analysis unfolds in the following major steps. The first part revises the theoretical foundations of the debate, in the attempt to offer a more balance treatment of the tension between norms and facts. Thereafter, the analysis turns to the case law of the icc. This explores the conditions of possibility of sovereignty as responsibility in the framework of the Rome Statute, calling special attention to the environment in which the icc operates. Finally, it seeks to determine how such conditions of possibility feed back to the normative structure.19 I

Sovereignty and the Life-Cycle of Norms Revisited

The claim that sovereignty is undergoing profound change hinges on a set of questionable (and is some respect contradicting) foundations, which are the result of an inadvertent collusion of ‘normativistic’ and ‘descriptivistic’ fallacies. These involve: the concept of sovereignty; the model of sovereignty ­assumed as benchmark for assessing change; and the development of international norms. The belief that sovereignty is undergoing a major transformation has been greatly facilitated by a relatively recent ‘linguistic turn’ in the social sciences.20 This, in fact, has enabled theorists to define sovereignty as a ‘bundle of rights, duties, and competencies’,21 whose conceptual redefinition offers on 16

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Peter Sutch, ‘Normative ir Theory and the Legalization of International Politics: The Dictates of Humanity and of the Public Conscience as a Vehicle for Global Justice’ (2012) 8 Journal of International Political Theory 1, 2. Ibid, 1. Peter Euben, ‘The Polis, Globalization, and the Politics of Place’, in A. Botwinick & W.E. Connolly (eds) Democracy and Vision: Sheldon Wolin and the Vicissitudes of the Political. (Princeton: Princeton University Press, 2001) 270. Jennifer M. Ramos, Changing Norms through Actions: The Evolution of Sovereignty (Oxford: Oxford University Press, 2013) 144. Jens. Bartelson, ‘Sovereignty Before and After the Linguistic Turn’, in Rebecca Adler-­ Nissen and Thomas Gammeltoft-Hansen (eds) Sovereignty, Self-defense, and the Disciplining of States. Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (New York: Palgrave Macmillan, 2008) 33. Tanja E.Aalberts-Meeuwsen and Wouter G. Werner, ‘Sovereignty beyond Borders’, in Rebecca Adler-Nissen and Thomas Gammeltoft-Hansen (eds), Sovereignty, Self-defense, and

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its own sufficient ground to advance a (valid) claim of change. At the same time, though, advocates of sovereignty as responsibility turn to the contested and contingent nature of sovereignty only selectively. In fact, the ‘new’ norm is commonly framed as radical departure from a model of formal equality,22 held to have licensed the untrammelled exercise of power for more than three centuries without major changes.23 Finally, the claim that a new norm of sovereignty is on the rise is supported by a constructivist understanding of norm development. Made popular by Finnemore and Sikkink’s norm life-cycle, this proposes a three-stage linear trajectory from ‘norm emergence’ to ‘norm cascade’ and ‘internalization’.24 The next following paragraphs aim at re-orienting the terms of this debate. Sovereignty as ‘Both Norm and Fact’ To start with, I suggest that the debate about sovereignty should be reset – from a purely normative understanding of sovereignty – onto the reconceptualization of the latter as ‘both norm and fact’.25 In the first place, such shift involves the acknowledgment of the normative side of sovereignty in conjunction with its factual reality. The normative side of sovereignty qualifies sovereignty as a socially constructed claim to power; its factual reality in terms of the actual exercise of sovereign prerogatives through some forms of power. That said, reckoning with the factual reality of sovereignty does not amount to reducing the latter to absolute power. Instead, sovereignty has an inescapable ‘relational or societal aspect’,26 and internal sovereignty is a

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the Disciplining of States. Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (New York: Palgrave Macmillan, 2008) 129, 131. The Westphalian model of sovereign equality is the taken for granted template also for the critics of sovereignty as responsibility. As Bartelson has noted, ‘by emphasizing the corrosive effects of supranational legal and political authority on the international society of sovereign equals’, these inspire ‘nostalgia for a political order that may never have existed outside our textbooks in international relations and law’. See Jen Bartelson, ‘From Empire to Sovereignty – and Back?’ (2014) 28 Ethics & International Affairs 251, 261. Luke Glanville, ‘The Myth of “Traditional” Sovereignty’ (2013) 57 International Studies Quarterly 79, 79. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887. Tanja. E. Aalberts, Constructing Sovereignty between Politics and Law (Hoboken: Taylor & Francis, 2012) 49. Ibid, 16–17.

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corollary of states being recognised27 as sovereign by other states.28 Two main upshots follow. The ‘force of the sociological dynamic and the flexibility of the normative possibilities’29 are beyond question; nevertheless, to develop a theory of sovereignty as responsibility without addressing the factual reality of sovereignty is ‘akin to trying to climb a ladder that has only one side’.30 Moreover, bringing attention to sovereign power allows us to see more clearly that ‘to redefine sovereignty so as to deny states exclusive jurisdiction over their territory and population must necessarily compromise their internal sovereignty.’31 Finally, there is a further way in which the realm of power impinges on the normative side of sovereignty. In a basic epistemic sense, sovereignty is understood as being before politics, namely as a particular way of making sense of world.32 However, moving beyond purely epistemic terms, sovereignty can be seen as a process of framing the polity precisely by means of enabling a specific form of politics. In fact, as we will see below, the (hierarchical) structure of international society determines the specific qualifications and restrictions on sovereignty that operate at any given time,33 and different conceptions of sovereignty are thus used to legitimise (and delegitimise) different forms of political authority.34 In line with this, the normative element of sovereignty can be further refined: from a mere historically contingent discursive claim to power, to a practical discourse that justifies certain relations of power, by recasting them into a set of rights, responsibilities and limitations concerning the exercise of power itself.

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See Stephen D. Krasner, ‘Recognition: Organized Hypocrisy Once Again’ (2013) 48 International Theory 170, 172, where the author convincingly argues that there are, indeed, ‘many states that are universally recognized that do not have effective domestic sovereignty or governance’, the extreme case being the one of ‘failed states’. Bartelson (n 22) 259. Neil Walker, ‘The Variety of Sovereignty’, in Rebecca Adler-Nissen and Thomas GammeltoftHansen (eds) Sovereignty, Self-defense, and the Disciplining of States. Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (New York: Palgrave Macmillan, 2008) 21, 30. Jeremy Moses, ‘Sovereignty as Irresponsibility? A Realist Critique of the Responsibility to Protect’ (2013) 39 Review of International Studies 113, 132. Bartelson (n 22) 259. Walker (n 29) 23. Edward. Keene, ‘International Hierarchy and the Origins of the Modern Practice of Intervention’ (2013) 39 Review of International Studies 1077. Bartelson (n 22) 260.

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The Westphalian Model of Sovereign Equality Discarded Once and for All The Peace of Westphalia As explained in the following paragraphs, understanding sovereignty as both norm and fact also offers a way out of the ‘dehistoricisation’35 and ‘reification’36 of the model of sovereign equality assumed as benchmark for assessing change. Following those who have already attempted to discredit the – yet popular – myth of Westphalia, I intend to reiterate that neither the provisions of the treaties signed in Westphalia, nor the ensuing order supports the claim that the Peace of Westphalia constitutes a paradigm shift towards sovereign equality and non-intervention.37 To start with, the Peace of Westphalia consisted of two bilateral treaties, one between Sweden and the German Emperor and the other between France and the German Emperor. This already casts doubt on the conventional portrayal of the Peace of Westphalia as a treaty between sovereign states acknowledging their exclusive spheres of authority. Secondly, while the treaties did not explicitly mention sovereignty, they reaffirmed the constitution of the Holy Roman Empire, which lasted for a further 158 years, until 1806. In fact, although the estates of the Empire were given new rights38 and often functioned as independent units after 1648, they still recognised the Emperor as their overlord, sent representatives to the Diet, paid common taxes, and even raised a joint army.39 In addition, it is true that the principle of ‘cuius regio, eius religio’, enshrined in the treaties, granted rulers in the Empire the right to choose the r­ eligion of 35 Glanville (n 23) 88. 36 Ibid. 37 David Armitage, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2012); Stéphane Beaulac, The Power of Language in the Making of International Law. The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijhoff, 2004); Derek Croxton, ‘The Peace of Westphalia of 1648 and the Origins of Sovereignty’ (1999) 3 The International History Review 569, 574; Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2003) 55 International Organization 253; Pärtel Piirimäe, ‘The Westphalian Myth and the Idea of External Sovereignty’, in Hent Kalmo and Quentin Skinner (eds) Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (Cambridge: Cambridge University Press, 2004) 64; Bruno. Teschke, The Myth of 1648: Class, Geopolitics and the Making of Modern International Relations, Vol. x. (New York: Verso, 2003). 38 The estates obtained a territorial right of superiority within their own dominions. In addition, even though they had been making alliances with outside powers long before 1648, their right to do so was formally acknowledged by the treaties. 39 Croxton (n 37) 574.

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their subjects. Nonetheless, before regarding this as crucial evidence for the end to the medieval system of overlapping authorities, we should also consider that, not only had the same principle already been proclaimed by the Peace of Augsburg (1555); but in 1648 the rule of ‘cuius regio, eius religio’ was actually mitigated by the provision of protections for minorities and equality guarantees (for Catholics and Protestants).40 Moreover, it was not until the mid-eighteenth century that Emeric de Vattel clearly articulated for the first time the right of non-intervention.41 Yet, even then, he balanced the right of non-intervention with the claim that tyrannical and oppressive states were illegitimate and should be denied protection from external interference.42 In this respect, Vattel’s formulation was actually receptive of rising ideas of popular sovereignty, which tied the mutual recognition of claims to sovereign authority to the capacity of sovereign representatives to secure the ‘rights of man’.43 Finally, and crucially, the explicit formulation of the sovereign prerogative to non-intervention did not actually end intervention. In Europe, while the French Revolution and Napoleon brought an end to the Holy Roman Empire, the ‘revolutionary rhetoric of equality was almost immediately contrasted with French hegemonic ambitions.’44 Napoleon ‘carved up, annexed, reconfigured, partitioned, and sold territory as if it were a personal possession.’45 After the Napoleonic Empire was defeated, the 1815 Congress of Vienna restored the Austrian Empire and expanded the Russian one. In 1867 the Austrian Empire became the Austrian-Hungarian Empire, and, since 1871, also the monarchs of Germany had styled themselves emperors. The dissolution of the European Empires after World War i was followed by Hitler’s attempt to unify Europe by force of arms. Allegedly Westphalian norms applied even less – actually did not apply at all – to the relationship between Europe and the rest of the world. Here, the concept of ‘civilization’ was put to work to justify a range of practices 40 41 42 43

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Beaulac (n 37) 204. Emmerich de Vattel, Droit des Gens (London [Neûchatel], 1758). Luke Glanville, Sovereignty and the Responsibility to Protect: A New History (Chicago: The University of Chicago Press, 2014) 6–7. Jean-Jacques Rousseau, Social Contract and Discourses (New York: E.P. Dutton & Co., 1913). However, contrary to conventional wisdom, constraints on sovereignty were contemplated even by earlier ideas of absolute sovereignty, which subjected the authority of sovereigns to moral, juridical and divine responsibilities. Peter Stirk, ‘The Westphalian Model and Sovereign Equality’ (2012) 38 Review of International Studies 641, 651. Kalevi J. Holsti, ‘The Decline of Interstate War: Pondering Systemic Explanations’, in Raimo Väyrynen, (ed) The Waning of Major War: Theories and Debates (London and New York: Routledge, 2006) 135, 137.

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of intervention. Largely resonant with present day notions of responsible sovereignty, these included: armed interference in the Ottoman Empire supposedly to ‘protect’ Christian subjects; imposition of unequal treaties; interference of the United States in the Western Hemisphere.46 Finally, albeit dominant approaches in international relations (ir) and international law (il) remaining blatantly reticent in this regard, intervention culminated in a phenomenon of enormous proportion, European colonialism, and in 1914 more than the 80% of the world’s surface was under European colonial rule. All things considered, the international order emerged from the Peace of Westphalia is better understood as one in which the Empire remained a keyactor, and medieval hierarchies were recast so as to guarantee the right of the more powerful to intervene in the affairs of the others.47 With this in mind, and especially by resituating colonialism at the core of history, we can see that, for much of the world, intervention had actually been more the norm than the exception.48 It is also important to underline that colonialism should not be considered the mere outside of the sovereign European state.49 The reading of sovereignty as a practical discourse justifying power relations suggests that colonialism meaningfully shaped the principle of sovereignty itself.50 What is more, as described in the next paragraph, ‘an implicit standard of civilisation’51 was even reaffirmed as a result of decolonization. The un and Decolonisation The supposed traditional principles of sovereign equality and freedom from external interference were firmly formalised in international law for the first time in the un Charter only in 1945. It is also popular to suggest that the same principles were universalised over the following two decades through the process of decolonisation. Does this mean that the era of Westphalian sovereignty finally arrived with the establishment of the United Nations and decolonisation in the second half of the twentieth century? This charter’s qualification of

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Glanville (n 42) 100–131. Piirimäe (n 37) 65. Jessica Whyte, ‘Always on Top: Sovereignty, the “Responsibility to Protect” and the Persistence of Colonialism’, in Jyotsna G. Singh and David D. Kim (eds) Postcolonial World. (Abingdon, Oxon: Routledge, 2017) 308, 311. 49 Ibid, 313. 50 Ibid. 51 Tanja E. Aalberts, ‘Rethinking the Principle of (Sovereign) Equality as a Standard of Civilisation’ (2014) 42 Millennium 767, 788–789.

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sovereignty and the resulting international order present ‘a series of puzzles and paradoxes’52 that pave the way to a more prudent conclusion. In the first place, it remains unclear to what extent a norm of equality ‘can mitigate the inequalities resulting from asymmetrical power relations’.53 ‘The normative presumption in favour of equality largely discredited principled ­arguments for hierarchy’; nonetheless, ‘in the post-war world the discrepancy between the doctrine of equality and the real distribution of powers was as great, if not greater, than ever.’54 Not to mention that, despite the proclaimed equality of its members, the un notoriously rests on the institutionalisation of their political inequality, as clearly attested by the veto power of the five permanent members of the un Security Council. Similarly, the letter of the Charter has not restrained powerful states from intervening in the internal affairs of other countries; and, during the Cold War, the interference of the two super-powers had been systematic in nearly the entire world.55 Another fundamental aspect to consider is the relationship between the principle of sovereign equality and human rights. Since 1945 we have been confronted with the institutionalisation of both the principle of sovereign equality, and an – increasingly popular – understanding of sovereignty that subordinates equality to the protection of fundamental human rights. Many in ir and il literature have argued that qualifying sovereignty and human rights as clearly differentiated or even mutually antagonistic regimes misunderstands their inherent connection.56 In particular, this would disregard that sovereignty has been increasingly justified on the grounds of individual rights since the emergence of popular sovereignty; and that decolonisation can be seen as the universalisation of the right to sovereign independence.57 Albeit each of these arguments has merit, the way to a more persuasive – and less apologetic – interpretation has been opened by Aalberts, by sensibly bringing in the issue of inequality:

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Brad R. Roth, ‘Sovereign Equality and Non-Liberal Regimes’ (2012) 43 Netherlands Yearbook of International Law 25, 26. Lora Anne Viola, Duncan Snidal and Michael Zürn, ‘Sovereign (In)Equality in the Evolution of the International System’, in Stephan Leibfried, Evelyne Huber, Matthew Lange, Jonah D. Levy, Frank Nullmeier and John D. Stephens (eds) The Oxford Handbook of Transformations of the State (Oxford Handbooks Online, 2014) 222. Stirk (n 44) 658. However, ‘intervention for human protection purposes was extremely rare’. iciss (n 2) 12. Christian Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’ (2001) 27 Review of International Studies 519, 522. Glanville (n 42) 157.

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Sovereign equality is not just a liberal right to individuality, but by the same token operates as a norm to be equally sovereign, that is to say, to be a sovereign of a similar (i.e. liberal) kind… After decolonisation, we can identify the imposition of an implicit standard of civilisation as the paradoxical outcome of the universalization of the principle of sovereign equality and expansion of European international society to a globalised one. The supposition of legally ‘like units’ in effect exposes differences between formally sovereign states. Having sovereign equality as a right then recoils in the form of the validation of equality in terms of sovereign being on the basis of the underlying metavalue of legitimate (or ‘normalised’) statehood.58 In sum, by portraying sovereignty as responsibility as a radical break with a previous norm of equality, the dominant narrative obscures the longstanding ‘tension between the enjoyment of sovereign rights and the enforcement of sovereign responsibilities’,59 and the continuities (and discontinuities) with earlier forms of intervention. Indeed, since the early modern period, the exercise of sovereign entitlements has actually been subjected to an international normative order. More to the point, this has dictated the scope and content of states’ ‘room to maneuver’,60 and it has done so reflecting specific hierarchies and conceptions of the standard of civilisation.61 In other words, sovereigns have traditionally been understood to bear an evolving range of rights and responsibilities. Accordingly, long before the end of the Cold War, states have interfered and intervened in the internal affairs of other sovereigns, often with the endorsement of political theorists, jurists and laypeople (especially those at the top of the international hierarchy). Finally, there is another crucial factor of continuity between older and newer forms of intervention: the lack of an overarching authority and enforcement system. The remaining part of the analysis will show that, contrary to the expectation that the icc would have finally ‘squared the circle’ between the primacy of states and human rights, this is instead the institution on which ‘the schizophrenic role of states’ as supporters, breakers and enforcers62 has most powerfully backfired.

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Aalberts (n 51) 788–789. Glanville (n 23) 88. Aalberts and Werner (n 21) 134. John Hobson, ‘The Twin Self-Delusions of ir: Why “Hierarchy” and Not “Anarchy” is the Core Concept of ir’ (2014) 42 Millennium 557, 562. Christopher Stephen, ‘International Criminal Law: Wielding the Sword of Universal Criminal Justice?’ (2012) 61 International and Comparative Law Quarterly 55, 89.

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The Development of Norms In line with the broader ‘linguistic turn’ in the social sciences, constructivist ir theory has stressed the socially constructed nature of the world we live in and the individual-level mechanisms that drive change. Accordingly, in their seminal work, Finnemore and Sikkink have argued that the development of international norms goes through the following three-stage process. In the first stage, ‘norm emergence’, norm entrepreneurs introduce a new idea into significant arenas, attempting to persuade others to adopt the idea. The second stage, called ‘norm cascade’, can occur only once the previous stage has reached a ‘tipping point’, that is, after a critical number of states have endorsed the emergent norm. In many cases, the ‘norm cascade’ is facilitated by the institutionalisation of the norm in specific sets of rules or organisations. In the final ‘internalisation’ stage, the norm becomes an accepted rule of behaviour.63 This classical constructivist understanding of norm development has surely the merit of challenging neorealism and neoliberalism’s typical determinism on matters of agency.64 Nonetheless, it also carries this goal too far. In fact, it ends up theorising a linear trajectory, which overstates the role of norm entrepreneurs and international institutions by falling short of contextualising them within the environment in which they operate. The approach invoked here holds on to ‘structuration theory’. ‘Structuration’ is precisely aimed to reconcile ‘agent-based explanations with structure-based accounts of social phenomena’.65 Its main tenet is that ‘the structural properties of social systems are both the medium and the outcome of the practices that constitute those systems.’66 Accordingly, the linear trajectory from ‘norm emergence’ to ‘internalisation’ is updated to reflect a more complex configuration. This retrieves environmental features as a fundamental factor in the construction of norms, yet without losing sight of agents. More specifically, it accounts for: how environmental conditions and operational realities influence agents, notably the institutions that interpret, shape and apply the norm;67 and how their decisions and their outcomes feed back to the normative structure.68 63 64 65 66

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Finnemore and Sikkink (n 24) 895. Paul A. Kowert, ‘The Peril and Promise of Constructivist Theory’ (2001) 13 Ritsumeikan Journal of International Studies 157. Ramos (n 19) 24. Anthony Giddens, Central Problems in Social Theory (London: Macmillan, 1979) 69. See also Antje Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters (Cambridge: Cambridge University Press, 2008) 27. Jutta Brunnée and Stephen J. Toope, ‘Norms, Institutions and un Reform: The Responsibility to Protect’ (2006) 2 Journal of International Law and International Relations 121, 134. Ramos (n 19) 144.

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Such a qualification of Finnemore and Sikkink’s model is also in line with what suggested by recent English School scholarship. The latter has pointed to a structural process, though which ‘primary institutions’ (e.g. sovereignty) instantiate a balance of power resulted from a previous process of negotiation among actors. This is reflected in the sorts of ‘secondary institutions’ (e.g. the icc) that are achieved, thereby impinging on their margin for manoeuvre and, in turn, on the scope of normative change.69 Well-suited to explain how the realm of power impinges on the normative side of sovereignty, the proposed model hence conforms with the dual nature of sovereignty as both norm and fact introduced above. The remaining part of the analysis will apply these revised readings of sovereignty and norm development to explore the norm of sovereignty institutionalized in the framework of icc. II

The Trade-off between the Norm and Its Enforcement at the icc

This part of the chapter focuses on the tension between the icc’s ‘sovereigntylimiting rationale’ and ‘sovereignty-based’ operation, and how this tension impinges on its legal and policy decisions to investigate and prosecute and their outcomes. However, the reader should not interpret this as a ‘truth-telling’ endeavour to reveal point by point how ‘politics infiltrates the legal process.’70 Instead, placing (the inescapability of) the tension between these two frameworks as the starting point of the analysis,71 this is more an attempt to inquire into the conditions of possibility of sovereignty as responsibility within the framework negotiated in Rome. Further, by looking at the whole system established by the Rome Statute, this section intends to broaden a critique that nowadays is still mostly centred on the Court.

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Cornelia Navari, Modeling the Relations of Fundamental Institutions and International Organisations. Paper given at the 8th PanEuropean Conference on International Relations, Warsaw, 18–21 September 2013. Rod Rastan, ‘Comment on Victor’s Justice & the Viability of Ex Ante Standards’ (2010) 43 The John Marshall Law Review 569, 599. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005).

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The Statutory Provisions There are two typologies of statutory provisions primarily relevant to the debate: the provisions defining the icc jurisdiction, and the provisions regulating the admissibility of situations and cases before the Court. A crime falls within the jurisdiction of the Court when the following conditions are met: the crime has been committed after the date of entry into force of the Statute (temporal jurisdiction); the crime consists of one of the crimes defined in Article 5 of the Statute (subject-matter jurisdiction); the crime has been or is being committed by a national of a state party (personal jurisdiction), or on the territory of a state party (territorial jurisdiction),72 or, finally the un Security Council has referred the situation to the Court.73 Many have pointed to the Court’s reach over third party nationals – ensuing from the principle of territorial jurisdiction – as a significant way in which the ‘Westphalian ideal of sovereignty is slowly being replaced by a cosmopolitan vision of justice.’74 In fact, not only the icc can intervene irrespective of any consent for cases referred by the un Security Council. But also, for cases opened on a state party’s referral or on the Prosecutor’s own initiative, the Court is allowed to exercise jurisdiction over any individuals, third party nationals included, for crimes committed on the territory of a member state (e.g. on us forces in Afghanistan; Russian forces in Georgia and Ukraine,75 and Israeli forces in Palestine76). Such supra-national authority is said to be further enhanced by the Court’s dismissal of state immunities, today the major point of contention between the icc and African states. According to Article 27, the Statute applies ‘equally to all persons without any distinction based on official capacity’, namely ‘official capacity as a Head of State or Government, a member of a Government or 72

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According to Art 12(3) of the Rome Statute, a crime also falls within the jurisdiction of the Court if it has been committed by a national of a state not party that has lodged a declaration accepting the jurisdiction of the Court or on the territory of a state not party that has lodged a declaration accepting the jurisdiction of the Court. Art 13 Rome Statute. Kevin Gray and Kafumu Kalyalya, ‘Overcoming Statism from Within: The International Criminal Court and the Westphalian System’ (2016) 17 Critical Horizons 53, 61. Ukraine is not a party to the Rome Statute. However, on 17 April 2014, the Ukrainian government lodged a declaration under Art 12(3) of the Rome Statute accepting the icc’s jurisdiction over alleged crimes committed on its territory from 21 Nov 2013 to 22 Feb 2014. Palestine acceded to the Rome Statute on 2 Jan 2015 (just after obtaining recognition as a ‘non-member state’ observer status at the un), thereby giving the icc jurisdiction from that date forward. Afterwards, Palestine submitted a declaration giving the icc jurisdiction over alleged crimes committed in the context of the Israel-Palestine conflict in Gaza and East-Jerusalem beginning June 2014.

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parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.’ However, jurisdictional provisions pertain to the mere existence of jurisdiction. The Court, in fact, can exercise its jurisdiction over one or more crimes falling within its jurisdiction only if the case fulfils the admissibility criteria. These, in other words, set the criteria according to which the icc can override domestic courts. For example, the Court has already ascertained its jurisdiction over alleged crimes committed in Afghanistan by us forces; but it will actually exercise its jurisdiction only if the admissibility criteria (currently under the Court scrutiny) are satisfied.77 Analyses centred on admissibility are, therefore, more compelling. According to Articles 17 and 53, cases are admissible before the Court provided that the alleged crimes are of ‘sufficient gravity’ to justify the intervention of the Court, and they are not being, or have not been, genuinely investigated or prosecuted at the domestic level (‘complementarity’). The icc is the ultimate judge as to whether a case is admissible before the Court; and, in a dispute over jurisdiction between the territorial state and the icc, the Court has the authority to override the claims of the territorial state and seize jurisdiction.78 Gravity’ and ‘complementarity’ are apparently in line with the legal standards prescribed by sovereignty as responsibility. Having said that, a more careful look portends a regime of radical ambivalence, which, in practice, allows the Prosecutor to shape the meaning of ‘sufficient gravity’ and ‘complementarity’ beyond the realm of legal thresholds.79 The Statute offers no indication at all as to how to assess ‘gravity’.80 What is more, considering that ‘complementarity’ is precisely aimed to strike a proper balance between effective prosecutions and safeguarding sovereignty, its own construction of sovereignty cannot but 77

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Office of the Prosecutor (otp), Report on Preliminary Examination Activities (2016) 43–51, available at https://www.icc-cpi.int/pages/item.aspx?name=161114-otp-rep-PE (last visited 10 Feb 2017). Madeline Morris, ‘Democracy, Global Governance and International Criminal Law’, in Petrus Adrianus Maria Malcontent and Ramesh Chandra Thakur (eds) From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (Tokyo; New York: un University Press, 2004) 187, 188. Carsten Stahn, ‘Judicial Review of Prosecutorial Discretion: Five Years On’, in Carsten Stahn & Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 247, 267. Schabas has described the criterion of ‘gravity’ as a ‘contrived attempt’ to make discretionary judgements appear ‘objective and judicial’. See William Schabas, ‘Victor’s Justice: Selecting “Situations” at the International Criminal Court’ (2010) 32 The John Marshall Law Review 535, 549.

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be ambivalent. ‘Complementarity’ inconclusively affirms both the primacy of states and the supranational authority of the Court. And, as ‘linguistic indeterminacy’ reopens ‘the field for politics’,81 it also puts a strain on ‘our traditional illusion of objective normativity with its strong positive connotations.’82 It follows that, while the delegation of legal authority to the icc has resulted in the legitimisation of discretionary power at the global level, ‘“politics in law” represents the political overtones and pressures that arise when prosecutorial discretion is exercised.’83 Finally, with this in mind, we can see how the specific orientations of prosecutorial discretion in relation to admissibility84 will in practice define the Court’ relationship with state sovereignty.85 A Definite Farewell to ‘Pure Legalism’ The political embeddedness described above is heightened by a crucial condition. Reflecting the persistence of the state as the primary site of political power, the system negotiated in Rome is one in which the Court is judicially independent, but also crucially dependent on states in practice. This tension unfolds in three main dimensions, which all arguably contribute to steer prosecutorial discretion: jurisdiction, resources and cooperation. Jurisdiction. In the absence of a un Security Council referral, the icc can only exercise its jurisdiction if either the territorial state or the state of the suspect’s nationality has accepted its jurisdiction. As a result, the capacity of the icc to exercise its own jurisdiction is largely a function of sovereign decisions. The withdrawal of Burundi and threats of mass-withdrawal from the African Union have clearly exposed the limits of these basic jurisdictional conditions of possibility. Hence, these already set the basis for a careful reconsideration

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Immi Tallgren, ‘Completing the “International Criminal Order”’ (1998) 67 Nordic Journal of International Law 107, 110. Ibid, 134–135. Steven C. Roach, ‘Introduction’, in Steven C. Roach (ed) Governance, Order and the International Criminal Court (Oxford: Oxford University Press, 2009) 1, 11 (emphasis added). Prosecutorial discretion arises not only when deciding whether to open an investigation ‘proprio motu’, but also when the jurisdiction of the Court has been triggered by a state party or the un Security Council, in order to decide whether to open an investigation and whom to prosecute. The Prosecutor’s discretion is only limited by the power of the PreTrial Chamber to review a decision not to proceed solely based on the ‘interests of justice’ criterion when there has been a un Security Council referral (Art. 53 Rome Statute). Manuela Melandri, ‘The Relationship between State Sovereignty and the Enforcement of International Criminal Law under the Rome Statute (1998): A Complex Interplay’ (2009) 9 International Criminal Law Review 531, 538.

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of the expectation of a Court able to act unrestrainedly against the interests of states.86 Resources. State parties are also the financial patrons of the icc, being the Court primarily funded through their contributions. It has been already noted that ‘the elective nature of their involvement produces a role akin to a shareholder evaluating an investment.’87 However, the point here is not to argue that state parties directly influence the decisions of the Prosecutor. The financial conditions of possibility gain special importance because the otp itself has often presented its scarcity of resources88 as a major constraint directly threatening its impartiality, namely by pushing the Prosecutor to prioritise investigations portending higher rates of success.89 The issue of resources, therefore, sheds further light on the gap between expectations and ‘practical realities’ faced by the Court in its work.90 Cooperation. A ‘decisive structural weakness’91 of the system negotiated in Rome is that the Court does not have the competencies and means to enforce its own decisions. Philippe Kirsch, first president of the icc, has described it in terms of a two-pillar system: a judicial pillar represented by the Court itself

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The Court’s need for political support also stretches to non-party states, especially to states with global power and reach. See: David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford: Oxford University Press, 2014); Ralph (n 6). Sara Kendall, ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’ (2015) 13 Journal of International Criminal Justice 113, 121. See Darryl Robinson, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win’ (2015) 28 Leiden Journal of International Law 323, 332–333: ‘On a per-situation basis, the icc has a small fraction of the resources that were available to previous institutions. Accordingly, the icc must not only select situations, but within each situation it has to be even more selective than past institutions.’ otp, Strategic Plan 2016–2018 (2015) 18, available at https://www.icc-cpi.int/iccdocs/ otp/070715-otp_strategic_plan_2016-2018.pdf (last visited 10 Feb 2017): ‘Faced with resource constraints, the Office has had to make difficult decisions by not starting certain investigations or placing others on hold. This has damaged the Office’s ability to respond to evolving situations (e.g. Libya, Darfur, Mali), and impacted negatively in terms of perception’. otp, Policy Paper on Case Selection and Prioritisation (2016) 15, available at https://www .icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf (last visited 10 Feb 2017). Hans P. Kaul, ‘The icc and International Criminal Cooperation: Key Aspects and Fundamental Necessities’, in Mauro Politi and Federica Gioia (eds) International Criminal Court And National Jurisdictions (Farnham, Surrey: Ashgate, 2008) 85, 86.

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and an enforcement pillar that relies on states.92 As a result, on the one hand, the icc is entitled to act even in situations and cases where states or the Security Council have not requested its intervention (and so in striking defiance of state-centric assumptions of world order); on the other, the same ability will ‘only become effective if the Court is able to rely on effective forms of ­cooperation from States and, where appropriate, the Security Council’.93 This tension is even magnified by the fact that the icc operates in contexts where there has not yet been a transition.94 In other words, local authorities are likely to be embroiled themselves in crimes falling within the jurisdiction of the Court, being thus hostile to judicial scrutiny. To sum up, the Rome Statute has placed the Court in the pressing need to enlist state power for its cause,95 thereby ultimately relocating the ‘unwillingness’ and ‘inability’ of states to investigate and prosecute.96 Effective investigations and prosecutions are thus generally difficult to achieve, ‘having to depend upon the same institutional and procedural weaknesses that were deemed incapable of supporting domestic investigations and prosecutions.’97 But, more to the point, while the exercise of jurisdiction by the icc in the absence of state consent is the most visible manifestation of the Court’s supranational authority, this is also the situation in which the Court’s intervention is most likely to remain symbolic. In fact, absent extraordinary international pressure or military intervention, the very unwillingness of the regime to prosecute will also prevent the icc from securing custody over alleged criminals who remain 92 93

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Rastan (n 70) 599. Rod Rastan, ‘The Responsibility to Enforce: Connecting Justice with Unity’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 163, 165. Robinson (n 88) 18. Mégret (n 1) 34. Ralph (n 6) 643. Yet, as pointed out above (n 12), Ralph’s conclusions result from an analysis that focuses on the impact of major powers over the work of the Court. The conclusions presented here follow from a wider focus on the overall role of states in the system negotiated in Rome. Rod Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431, 455. To give a quick overview, in nearly 15 years of activity, the icc has achieved four convictions – in addition to five convictions in the same case involving offences against the administration of justice – and one acquittal. Six suspects have had the charges against them dismissed. Two have had the charges against them withdrawn. One has had his case declared inadmissible. Trials are ongoing against four suspects. Finally, 12 warrants of arrest against 13 individuals remain outstanding, largely due to lack of state cooperation.

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under the regime’s protection.98 These considerations already expose the paradox that ‘intrinsically powerless institutions’99 are expected to ‘achieve ­objectives whose attainment would be a serious challenge to even their most powerful national counterparts’.100 The Court personnel is well-aware of these limits. The otp has expressly acknowledged that the effectiveness of the institution depends on ‘external critical resources factors’, such as ‘cooperation and external relations, resources, security’.101 The otp’s ‘Strategic Plan 2012–2015’ states that ‘evaluating the Office’s success will also require measuring the level of effective support it is receiving from States Parties, intergovernmental organizations, ngos and other to overcome the obstacles it faces in executing its mandate.’102 Focusing on cooperation, the same report argues that this ‘requires trust and respect between the partners, alignment of interests and an established network of contacts.’103 Moreover, in a recently released paper on case selection and prioritisation, the otp has officially conceded that ‘operational feasibility does become a relevant factor’104 at the case prioritisation stage.105 According to the same report, considerations about feasibility involve: the quantity and quality of the incriminating and exonerating evidence; international cooperation and judicial assistance to support the Office’s activities; the Office’s capacity to effectively conduct the necessary investigations within a reasonable period of time; the potential to secure the appearance of suspects before the Court.106 98

Alexander K.A. Greenawalt, ‘Justice Without Politics? Prosecutorial Discretion and the International Criminal Court’ (2007) 39 New York University Journal of International Law and Politics 583, 630. 99 Mirjan R. Damaška, ‘The International Criminal Court Between Aspiration and Achievement’ (2009) 14 ucla Journal of International Law and Foreign Affairs 19, 23. 100 Ibid. 101 otp (n 89) 35. 102 otp, Strategic Plan 2012–2015 (2013) 36, available at https://www.icc-cpi.int/iccdocs/otp/ OTP-Strategic-Plan-2013.pdf (last visited 10 Feb 2017). 103 Ibid, 28. 104 otp (n 90) 15. 105 Prioritisation is expressly intended to govern the process by which cases that meet the selection criteria are rolled-out over time. On the contrary, as far the selection and prioritisation of situations is concerned, the otp has remained largely silent. It may be argued that compared to case selection, the selection of situations is less a matter of prosecutorial discretion, being inherently limited by the icc’s legal jurisdiction. However, neither a state party nor even a Security Council referral automatically triggers an investigation, which will only start when the Prosecutor finds that there is a ‘reasonable basis’ to proceed, a determination that, as described above, does entail large spaces of discretion. 106 otp (n 90) 15.

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The ‘impact and the ability of the Office to pursue cases involving opposing parties to a conflict in parallel or on a sequential basis’ is also listed among the case prioritisation criteria.107 The following step of the analysis is hence to see how the conditions of possibility presented above have shaped the practice of the Court so far. The Test of Institutional Practice By February 2017, 23 cases in ten situations have been brought before the International Criminal Court.108 Four state parties – Uganda, the Democratic Republic of the Congo (drc), the Central African Republic (car)109 and Mali – have referred situations occurring on their territories to the Court. The un Security Council has referred110 the situations in Sudan and Libya, both non-state parties to the Statute. The Prosecutor has initiated investigations ‘proprio motu’ in Kenya, Côte d’Ivoire, and Georgia. Ten situations remain under preliminary

107 Ibid. 108 Pursuant to the Rome Statute, the Prosecutor can initiate an investigation on the basis of a referral from any state party (Art 14) or from the un Security Council (Art 13(b)). In ­addition, the Prosecutor can initiate investigations ‘proprio motu’ on the basis of information on crimes within the jurisdiction of the Court received from individuals or organizations (Art 15). If the prosecutor seeks to initiate an investigation ‘proprio motu’, a pre- trial chamber has first to authorize the investigation (Art 15(3)). 109 The Government of the car has referred two situations to the Court, in Dec 2004 and May 2014. The icc has opened an investigation into both of them. See: ‘Prosecutor Opens Investigation in the Central African Republic’ (22 May 2007), available at https://www .icc-cpi.int/Pages/item.aspx?name=prosecutor%20opens%20investigation%20in%20 the%20central%20african%20republic (last visited 10 Feb 2017); ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Opening a Second Investigation in the Central African Republic’ (24 Sept 2014), available at https://www.icc-cpi .int/Pages/item.aspx?name=Statement-open-CARII (last visited 10 Feb 2017). 110 Hans Köchler, ‘Global Justice or Global Revenge? The icc and the Politicization of International Criminal Justice’ International Progress Organization Online Papers (2009), 1, 4–5, available at i-p-o.org/koechler-ICC-politicization-2009.pdf (last visited 10 Feb 2017). The privilege granted to the un Security Council to refer or defer an investigation or prosecution for a renewable period of 12 months under the icc Statute is very similar, in structural terms, to the veto power of the five permanent members of the un Security Council. Yet, as Köchler has noted: a ‘special irony’ of the Council’s referral-deferral authority lies in the fact that ‘it is bound to the political will of states that are not even parties to the Rome Statute’, at the moment three out of five permanent members, who, ‘with their own and their allies’ leaders and personnel being shielded from the Court’s jurisdiction, can use the Court to advance their own political agenda.’

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examination:111 Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, Registered Vessels of Comoros and Greece and Cambodia, Ukraine. In line with the effectiveness of the icc being largely dependent on state ­support and cooperation, the Court has prioritised intervention in s­ ituations enjoying some sort of sovereign backing, namely whenever the Security Council has expressly endorsed it through a referral, or, most often, whenever ­governments have portended their cooperation by self-referring their own situations. State self-referrals, which represent the majority of the situations before the Court,112 have, therefore, been ideal, providing the Court not only with its ‘first work’,113 but also enhancing ‘its legitimacy (states were seen to agree with icc intervention) and its effectiveness (states promised cooperation).’114 However, the tension between the practice of self-referrals and the formal framework of ‘complementarity’ is clear, self-referrals amounting to ‘a form of negotiated, ad hoc primacy’.115 The case of Uganda is paradigmatic of the malleability of ‘complementarity’. ‘Uganda was not “unable” to prosecute certain lra commanders, except that it had failed to capture them; and it was not “unwilling” to prosecute, except that it wanted the icc’s intervention’116 to use it as ‘another instrument to defeat its enemy’.117 What is more, the icc was (and is) not any more able to arrest. All these facts were not subject to critical reflection, giving the impression that the requirements of ‘complementarity’ could easily be bypassed towards a mutually beneficial cooperation.118 A similar pattern has taken place also in the situation of Mali. Moreover, here, the application of the gravity threshold is not entirely undisputed. In particular, it 111 During a preliminary examination, the opt analyses whether or not the icc has (material, temporal, personal or territorial) jurisdiction, whether an investigation would be admissible; and whether an investigation would be in the interests of justice and of the victims (the Prosecutor considers whether, regardless of jurisdiction and admissibility, there is some good reason not to open an investigation) (Art 53 Rome Statute). 112 Five situations out of a total of ten have been (self-)referred by states to the Court. To these can be added the situation in Côte d’Ivoire, which amounts to a ‘de facto’ state selfreferral, President Ouattara having invited the Court’s intervention. 113 Sarah M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013) 400. 114 Ibid. 115 Jann K. Kleffner, ‘Auto-referrals and the Complementary Nature of the icc’ (2009) 48 Legal Aspects of International Organization 41, 41. 116 Adam Branch, ‘Uganda’s Civil War and the Politics of icc Intervention’ (2007) 21 Ethics & International Affairs 2 179, 187. 117 Sarah M.H. Nouwen and Wouter Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 21 ejil 4 941, 949. 118 Nouwen (n 113) 120.

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has been suggested that the international concern for the crisis in Mali119 may have played a decisive role in determining the Court’s involvement.120 On the other hand, before the recent opening of an investigation in Georgia (January 2016), the Prosecutor had exercised the power to open an investigation ‘proprio motu’ very cautiously – only in two situations. One of these, Côte d’Ivoire, amounts to a ‘de facto’ self-referral by the government.121 The other, Kenya, while being far from the interests of major powers and their allies, is, yet, characterised by a relatively limited violence. Alleged crimes against humanity committed in the context of post-election violence in Kenya between 2007 and 2008 had resulted in over 1000 dead, 600,000 displaced and hundreds sexually assaulted. The Pre-Trial Chamber’s decision to authorise this investigation was not unanimous, as judge Hans–Peter Kaul claimed that the violence was not part of a ‘state or organizational policy’ thus falling outside the icc subject-matter jurisdiction.122 Furthermore, in a later stage, judge Anita Ušacka dissented from the Pre-Trial Chamber’s application of ‘complementarity’. She argued that the Chamber had applied ‘an unduly high burden’ in its definition of ‘investigation’ and ‘case’, thereby unnecessarily hastening the requirements of admissibility.123

119 icc Prosecutor Fatou Bensouda opened a formal investigation in January 2013, while France was militarily intervening in support of the Malian government through ­‘Operation Serval’. This was authorized retroactively by the un Security Council, which in ­December 2012 had already authorised the deployment of peacekeepers by the Economic Community of West African States (ecowas). 120 A similar criticism has been directed at the icc intervention in Libya. According to an analysis combining the data of three widely accepted databases (the Uppsala Conflict Database, Political Terror Scale and Failed State Index), the situation in Libya ‘would not even rank amongst the ten gravest situations in its worst years (2010 and 2011) – but compared to some other countries was clearly more of an international concern as demonstrated by attention dedicated to Libya by the unsc.’ See Alette L. Smeulers, Maartje Weerdesteijn and Barbora Hola, ‘The Selection of Situations by the icc: An Empirically Based Evaluation of the otp’s Performance’ (2015) 15 International Criminal Law Review 1 1, 32. 121 See n 112. 122 Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber ii’s Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11, 15 March 2011, available at http:// www.haguejusticeportal.net/Docs/ICC/Kenya/Justice%20Kaul%20Dissent%2015%20 March%202011.pdf (last visited 10 Feb 2017). 123 Charles C. Jalloh, ‘Kenya vs the icc Prosecutor’ (2012) 53 Harvard International Law Journal 269, 274.

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By contrast, other situations implicating major states have been more or less lengthily protracted as preliminary examinations. The preliminary examination concerning the Afghan situation is surely a case in point, being protracted for approximately a decade. Another notable preliminary examination is the one into the situation in Colombia, which has been ongoing since 2004. Here the otp’s approach has been interestingly ‘nuanced’.124 ‘It identified early on that crimes in the jurisdiction of the icc had been committed’125 and repeatedly indicated that the Court would step in if Colombian investigations and prosecutions did not satisfy Rome Statute requirements. Nonetheless, it certainly ‘did not rush to claim jurisdiction over cases’.126 It has also been noted that the interaction between the Court and the Colombian government has placed the latter in the position to assert control over other parties to the conflict and the political opposition as to how the conflict is portrayed.127 A similar destiny of prolonged preliminary examination is likely to await also Palestine, for which both former Prosecutor Luis Moreno-Ocampo and current Prosecutor Fatou Bensouda have shown ‘marked caution’.128 As outlined here below, the relevance of the criterion of sovereign backing is also confirmed by the selection of cases before the Court and, even more tellingly, by the outcomes of the few attempts to prosecute representatives of state power. All cases in self-referred situations as well as in Côte d’Ivoire have targeted opposition and rebel forces, despite evidence of serious crimes committed by the self-referring governments.129 While the absence of cases against the 124 Kirsten Ainley, ‘The Great Escape? The Role of the International Criminal Court in the Colombian Peace Process’, Justice in Conflict, 13 Oct 2016, available at https://justiceincon flict.org/2016/10/13/the-great-escape-the-role-of-the-international-criminal-court-in-the -colombian-peace-process/ (last visited 10 Feb 2017). 125 Ibid. 126 Ibid. 127 Jennifer Easterday, ‘Beyond the ‘Shadow’ of the icc. Struggles over Control of the Conflict Narrative in Colombia in Contested Justice’, in Christian M. d. Vos, Sara Kendall and Carsten Stahn (eds) Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015) 432, 453–455. 128 David Bosco, ‘Palestine in The Hague: Justice, Geopolitics, and the International Criminal Court’ (2016) 22 Global Governance 1 155, 156. 129 An exception has been the transitional government of car led by Catherine Samba-­ Panza, which decided to refer the situation on 30 May 2014 requesting the otp to investigate alleged crimes falling within icc jurisdiction committed in the country since 1 Aug 2012.

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latter has unquestionably reinforced them, it has also seriously undermined perceptions of the Court’s independence and impartiality and, ultimately, its legitimacy. Severe criticism has been raised by the Lubanga case. Leader of the rebel Union des Patriotes Congolais (upc) operating in the Congolese discrict of Ituri, the icc found Lubanga guilty of enlisting and conscripting children under 15. However, there is widespread acknowledgment that these charges are not representative of the crimes allegedly committed by Lubanga and his troops, nor of the gravity of crimes allegedly committed in the district, including those attributable to local and neighboring government forces. Close observers of the icc have even suggested that on this occasion the Court replaced the gravity test with something more akin to an ‘expediency test’.130 In other words, the decision to prosecute Lubanga for child-soldiers’ conscription was based not on gravity, but rather ‘on which crime investigators could quickly gather evidence on in order to secure an arrest warrant’.131 In fact, while Congolese authorities were holding Lubanga in preventive detention on different counts of war crimes and crimes against humanity, the Prosecutor dropped the investigation of a wider range of crimes upon learning that he was about to be released due to lack of sufficient evidence.132 In order to prevent such release, the Prosecutor decided, by the otp’s own admission,133 to focus his investigation on the more manageable – albeit less serious – crime of enlisting 130 This argument was advanced by Mariana Getz at the ‘Second Public Hearing of the Office of the Prosecutor ngos and Other Experts The Hague, 26 September 2006’, 14, where she was representing redress, an international ngo promoting victims’ rights. Report available at https://www.icc-cpi.int/iccdocs/otp/OTP_PH2_HGNGO.pdf (last visited 10 Feb 2017). 131 Pascal Kalume Kambale, ‘A Story of Missed Opportunities. The Role of the International Criminal Court in the Democratic Republic of Congo’, in Christian M. d. Vos, Sara Kendall and Carsten Stahn (eds) Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015) 171, 180. 132 The Pre-Trial Chamber (ptc) declared the case admissible on the grounds that the drc could not be considered to be acting in relation to the specific case before the icc (‘same person/same conduct test’). Such an approach has been widely criticized for reflecting a narrow, technical interpretation of ‘complementarity’. It has even been denounced as ‘a textbook case of abusive complementarity’, which discouraged domestic proceedings rather than serving as a catalyst for them, as envisaged by the spirit of the Rome Statute. See Frédéric Mégret and Marika Giles Samson, ‘Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials’ (2013) 11 Journal of International Criminal Justice 2013 3 571, 587. 133 otp, Report on the activities performed during the first three years (June 2003–June 2006) (2006) 8, 12, available at https://www.icc-cpi.int/NR/rdonlyres/D76A5D89-FB64

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and conscripting children under 15. Furthermore, albeit Prosecutor MorenoOcampo presented the Ituri conflict as predominantly of an ethnic nature, the region had actually been the battleground for a war between the governments of Uganda, Rwanda and the drc, ‘motivated by the desire to control political space and natural resources’.134 According to Human Rights Watch, these ­governments ‘provided political and military support to local armed groups’;135 and, ‘as was the case with most of the militia in Ituri, […] the upc’s operations were under the effective strategic control of the Ugandan army and later the Rwandan army’.136 However, the Ugandan government, crucial ally of the icc in its investigations in Northern Uganda, was left untouched even after the icj suggested that this was highly likely to be involved in the very crimes investigated by the otp in Ituri.137 Moving to the un Security Council referred Libyan situation, it is former govern authorities, nowadays private citizens, that have been prosecuted. On the contrary, the Libyan revolutionary forces, currently governing the country, have been so far excluded from prosecutions, despite evidence that they have also committed crimes. The Misratan militia, accused by the Commission of Inquiry on Libya of serious crimes (e.g. unlawful killing, arbitrary arrest, and torture)138 was even praised by former Prosecutor Luis Moreno-Ocampo as an -47A9-9821-725747378AB2/143680/OTP_3yearreport20060914_English.pdf (last visited 10 February 2017). 134 Kambale (n 129) 184. See also Phil Clark, ‘Law, Politics and Pragmatism: The icc and Case Selection in the Democratic Republic of Congo and Uganda’ in Nicholas Waddell & Phil Clark (eds) Courting Conflict? Justice, Peace, and the icc in Africa (London: Royal African Society, 2008) 37, 41: ‘The Pre-Trial Chamber’s 29 January 2007 ruling included an unprecedented statement that the Prosecutor’s charges against Lubanga were insufficient as they failed to recognise the ‘international’ nature of the Ituri conflict, implying the role of Uganda and Rwanda. The Prosecutor appealed to the Pre-Trial Chamber, requesting that references to crimes in the ‘international’ conflict dimension be removed from the charges against Lubanga, as the otp’s evidence related only to crimes committed in the ‘internal’ conflict.’ 135 Ibid. 136 Ibid, 179. 137 Ibid, 195. 138 un Human Rights Council, ‘Report of the International Commission of Inquiry on Libya’ (2012), available at http://www.ohchr.org/EN/NewsEvents/Pages/LibyaReport.aspx (last visited 10 Feb 2017). However, Kevin J. Heller has criticised the Commission for not considering whether the Mistratan militia ‘committed the crimes against humanity of forcible transfer and persecution, to say nothing of genocide, even though its factual findings clearly suggest that they did’. See Kevin J. Heller, ‘The International Commission of Inquiry on Libya: A Critical Analysis’, in Jens Meierhenrich (ed.), International Commissions: the

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‘example for the world’.139 Nor the Court has drawn attention to alleged crimes of the international military forces that enabled the installation of the new government.140 Another key thing to consider is that the Prosecutor remained silent about the double standards contained by the resolution through which in 2011 the Security Council referred the situation of Libya to the Court (Resolution 1970). Getting hold of the intentions and language of the 2005 Darfur referral (Resolution 1593), Resolution 1970 excluded non-party states – other than Libya – from the icc jurisdiction, a concession that especially the us had set ‘as a pre-condition for supporting the referral’.141 But the Libyan referral went even further than its archetype. It restricted the icc’s jurisdiction Role of Commissions of Inquiry in the Investigation of International Crimes (Oxford: Oxford University Press, forthcoming). 139 Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (Oxford: Oxford University Press, 2016) 155. 140 Operation Unified Protector (oup) started on 23 March 2011, following un Security Council resolution 1973 (2011). The R2P doctrine was explicitly invoked in the resolution, which declared that a core goal is ‘to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’. See un Security Council resolution 1973 (2011) [on the situation in the Libyan Arab Jamahiriya], 17 March 2011, S/RES/1973 (2011), para 4, available at: http://www.refworld.org/docid/4d885fc42.html (last visited 10 Feb 2017). Eighteen countries (14 nato member-states and four partners) took part in the operation, 15 of them in air-operations: Belgium, Bulgaria, Canada, Denmark, France, Greece, Italy, Jordan, Netherlands, Norway, Qatar, Romania, Spain, Sweden, Turkey, United Arab Emirates, United Kingdom, and the United States. Bulgaria, Greece and Romania were the countries not participating in air-operations. nato air-strikes killed, at least, between 55 and 72 civilians, many of them children under age 18. Human Rights Watch documented eight incidents, which ‘raise questions as to whether the attacking forces acted fully in accordance with their obligations under the laws of war to exercise “constant care to spare the civilian population” and take “all feasible precautions” to minimize loss of civilian life’. See Human Rights Watch, Unacknowledged Deaths. Civilian Casualties in nato’s Air Campaign in Libya (2012), 64, available at https://www.hrw.org/report/2012/05/13/ unacknowledged-deaths/civilian-casualties-natos-air-campaign-libya (last visited 10 Feb 2017). See also: Amnesty International, Libya: The Forgotten Victims of nato Strikes (2012), available at https://www.amnesty.org/download/Documents/24000/mde190032012en .pdf (last visited 10 Feb 2017); Arab Organization for Human Rights, Palestinian Centre and International Legal Assistance Consortium, Report of the Independent Civil Society Fact-Finding Mission to Libya (2012), available at http://www.legal-tools.org/doc/c4f71a/ (last visited 10 Feb 2017). 141 Mark Kersten, ‘Between Justice and Politics The icc’s Intervention in Libya’, in Christian M. d. Vos, Sara Kendall and Carsten Stahn (eds) Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015) 456, 460.

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to events post-February 15 2011, so as to shield even state parties to the Rome Statute from having their affairs with Libya come under scrutiny. In fact, ‘in the years preceding the intervention, many of the same Western states that ultimately […] help overturn the regime had maintained close economic, political and intelligence connections with the Libyan government’.142 In short, the encroachment upon the sovereignty of Libya – a peripheral state (non-party to the Rome Statute) – could take place only at the ultimate price of major states having their military personnel and political elite largely143 exempted from the Court jurisdiction. Finally, looking at the only two situations where both sides of the conflict were targeted by the Court, Sudan and Kenya, the picture becomes even more discouraging. In Sudan, the Court opened cases against three rebels and four state-actors, including President of Sudan Omar al Bashir.144 The rebels were charged with orchestrating an attack against the African Union Mission in Sudan, during which 12 peacekeepers died. One has been trialed (and had his charged dismissed); another remains at large (after voluntarily appearing before the icc at the pre-trial stage); proceedings against another one were terminated following his passing. On the other hand, all state-actors remain fugitives, despite the relative gravity of their alleged crimes – crimes against humanity and even genocide, in addition to war crimes – is strikingly greater. A similar pattern has applied to Kenya. Here the icc opened cases against six suspects from both sides of Kenya’s 2007 elections. While the icc proceedings against them were ongoing, Kenyatta and Ruto, run jointly in Kenya’s 2013 presidential election, and they were elected respectively as president and 142 Ibid, 462. 143 Considering that oup operation took place after February 15 2011, the icc member-states that joined the operation (all the oup participating countries except Qatar, Turkey, Ukraine, the United Arab Emirates, and the us) can potentially be the subject of an icc investigation. 144 It is interesting to note that the Prosecutor attempted not to alienate the Sudanese government by initially focusing on two senior, but not top-level officials (The Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’) ICC-02/05-01/07). See Anna F. Triponel and Paul R. Williams, ‘The Clash of the Titans: Justice and Realpolitik in Libya’ (2013) 28 American University International Law Review 3 775, 808. According to Nouwen and Werner, the Prosecutor also ‘requested the judges to consider issuing summonses to appear as an alternative to arrest warrants, since summonses would not corner the Sudanese government’. The otp changed his policy into one of full confrontation with the Sudanese government only when the latter broke off all cooperation (after the indictment of Ahmed Harun and Ali Kushayb). See Nouwen and Werner (n 117) 959.

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his deputy. Given their strenuous opposition to the Court’s proceedings, and hence the difficulty for the otp to collect and preserve evidence, their cases collapsed, while three other suspects remain fugitives under their protection. In sum, to date, all the sporadic efforts of the icc to prosecute representatives of state power have failed. Since the end of 2015 there have been signs pointing to a reorientation of the Court’s prosecutorial policy. The Prosecutor has repeatedly launched appeals to state parties to increase the budget allocated to the otp and thus enable it to catch up with the ‘delay in investigating both sides’ in Côte d’Ivoire.145 The 2015 otp Report on Preliminary examinations summoned – more overly than ever before – alleged crimes of major powers and their allies.146 In January 2016, the Prosecutor opened an investigation in Georgia, the first full-blown investigation outside of the African continent, which may even implicate the conduct of Russian forces on Georgian territory.147 Finally, the 2016 Report on Preliminary examinations promised an imminent decision as to whether to open a full investigation into the Afghan situation, including alleged crimes of American military and cia forces.148 Albeit this new course is still more at the level of a ‘declaration of intent’ than a practice (no ‘controversial’ case has been opened yet, and the imminent decision about Afghanistan is still to be made), the icc has undoubtedly reached an unprecedented involvement in situations where it may take on (powerful) state interests: in Georgia and Ukraine (Russia), Iraq (United Kingdom), Afghanistan (United States), Palestine (Israel).149 At the same time, though, the recent withdrawal of Burundi from the Rome Statute,150 coupled with the mounting African Union’s opposi145 otp (n 89) 18. 146 otp, Report on Preliminary Examination Activities (2015), available at https://www.icc-cpi .int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf (last visited 10 Feb 2017). 147 ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, Following Judicial Authorisation to Commence an Investigation Into the Situation in Georgia’ (27 Jan 2016), available at https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-27 -01-2016-georgia (last visited 10 Feb 2017). 148 otp (n 77) 51. 149 Patryk I. Labuda, ‘Africa and the icc: Shattered Taboos, and the Status Quo’, ejil: Talk! Blog of the European Journal of International Law (23 Nov 2016), available at https://www .ejiltalk.org/africa-and-the-icc-shattered-taboos-and-the-status-quo/#more-14778 (last visited 10 Feb 2017). 150 Burundi’s decision to withdraw from the Rome Statute in Oct 2016 came after the Court had publicly announced its preliminary examination of the situation in the country in April 2016, and after the un Human Rights Council had resolved, at the end of Sept 2016, to create a commission of inquiry that would have identified alleged perpetrators and

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tion, has materialised the ultimate backlash that may emerge if states see its mandate ‘being stretched too far beyond what they are willing to support’.151 As a result, albeit the more recent icc practice may signal some increase in its own ‘willingness’ to exercise jurisdiction against representatives of state power, the Court’s ‘ability’ is by no means improved. Some may argue that, by rendering services to states ‘in need’ (ie unable to prosecute non-state actors accused of heinous crimes), the icc is still playing a full part in the project of civilising sovereignty.152 Nevertheless, the fact that all the individuals who are or have been in the Court’s custody are associated with non-state actors153 should no longer be overlooked. Instead, one can hardly remove the suspicion that the other side of the Court’s focus on non-state actors is exactly the acquittal of the irresponsible exercise of sovereignty. In sum, the practice of the icc so far suggests that the process of delegating legal authority to the Court is an intensely political one.154 While this consideration already sets the Court closer to ‘mechanisms of international diplomacy,’155 we should also concede that such process remains far from resolving the collective actor problem. Instead, cutting to the core of the theoretical premises and practical purposes of both R2P and international criminal justice, this may inadvertently end up re-entrenching a notorious pattern of ­‘hyper-protected macro-sovereignty’. Finally, such a conclusion is also backed

151

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recommend steps to guarantee their accountability. Burundi’s decision has added momentum to mounting African opposition to the Court. David S. Koller, ‘The Global as Local: The Limits and Possibilities of Integrating International and Transitional Justice’, in Christian M. d. Vos, Sara Kendall and Carsten Stahn (eds) Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015) 85, 102–103. Frédéric Mégret, ‘In Whose Name?: The icc and the Search for Constituency’, in Christian M. d. Vos, Sara Kendall and Carsten Stahn (eds) Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015) 35. It may be argued that specific classificatory difficulties raise with regard to the case of Jean-Pierre Bemba Gombo (Prosecutor v. Jean-Pierre Bemba Gombo ICC-01/05-01/08). Former vice-president of the Democratic Republic of Congo, in 2002 he was invited by the then car President Ange-Félix Patassé to help resist a coup attempt by François Bozizé, who later became president. However, at the time when he is alleged to have committed his crimes, Bemba was not in a governmental position and was, instead, the leader of the Mouvement de Libération du Congo (mlc). Furthermore, when the government led by Bozizé referred the situation to the icc, Patassé, in whose support Bemba had intervened, was also a private citizen, having lost its office. Ralph (n 6) 643. Koller (n 151) 89.

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by the theoretical presupposition that to redefine sovereignty so as to deny states exclusive jurisdiction must necessarily compromise their internal sovereignty. III

Conclusions

Unlike international institutions governing trade, monetary, environmental, or security policy, etc., international human rights institutions do not merely regulate interactions across borders, but are meant to ‘hold governments accountable for purely internal activities’.156 The growth of international human rights institutions in the midst of various globalisation processes has eminently raised the question of to what extent the political power traditionally associated with the state is being constrained. Several observers have regarded the icc as the cutting edge of an ongoing re-characterisation of sovereignty as responsibility. While they have mostly framed the debate within purely normative parameters, this chapter has moved from the assumption that norms cannot live as mere philosophical abstractions,157 and, instead, must be subjected to the constraint of ‘“ought implies can”’.158 If norms and their critical moral edge are important ‘so is their implementation’.159 The first step of the analysis has been to reset the debate from a purely normative understanding of sovereignty onto the reconceptualization of the latter as both norm and fact. The chapter has accounted for the factual reality of sovereignty in two fundamental ways: as actual exercise of sovereign prerogatives through some forms of power (ie sovereign power); and in terms of how the actual distribution of power in international society impinges on the normative qualification(s) of sovereignty operating at a given time. The account in terms of sovereign power has, from the onset, shed critical light on the claim that the re-characterisation of sovereignty as responsibility does not entail transfer or dilution of state sovereignty. In addition, understanding sovereignty as both norm and fact has opened the way for reconceptualising the model of sovereign equality conventionally as156 Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217, 217. 157 Martti Koskenniemi, ‘International Law in the World of Ideas’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012) 47, 61. 158 Jan N. Pieterse, ‘Emancipatory Cosmopolitanism: Towards an Agenda’ (2006) 37 Development and Change 6 1247, 1254. 159 Ibid.

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sumed as benchmark. Joining the voices already critical of Westphalian sovereignty, the chapter has argued that, since the early modern period, the exercise of sovereign entitlements has actually been subjected to a normative order, this reflecting specific hierarchies and conceptions of the standard of civilisation. In particular, long before the end of the Cold War, states have interfered and intervened in the internal affairs of other sovereigns, often with the endorsement of political theorists, jurists and laypeople (especially those at the top of the international hierarchy). Accordingly, by portraying sovereignty as responsibility as a radical departure from equality and non-intervention, the dominant narrative obscures its deep and complex historical roots. Finally, in line with the dual nature of sovereignty as both norm and fact, the chapter has suggested that the linearity of the classical constructivist understanding of norm development should give way to a more complex configuration. The latter shall track: how environmental conditions and operational realities influence agents, notably the institutions that interpret, shape and apply the norm; and how their decisions and their outcomes feed back to the normative structure. The remaining part of the analysis has applied these revised readings of sovereignty and norm development to explore the case of the icc. This has focused on the tension between the icc’s sovereignty-limiting rationale and sovereignty-based operation, and how such tension has impinged on the Court’s legal and policy decisions to investigate and prosecute and their outcomes. All things considered, both the Court’s statutory framework and practice have suggested that it is hard for sovereignty as responsibility to become institutionalised and still retain a critical stance against power, which today remains largely concentrated in the hands of states. However, whilst the formal delegation of mere legal authority to the ICC has apparently been insufficient to move the Court away from a notorious pattern of ‘hyper-protected macro-sovereignty’, a final caveat is needed. Even if we concede that the re-characterisation of sovereignty as responsibility does indeed logically require a greater delegation of political power to the supranational level, we still cannot ignore the relationship that arguably connects agency – presumably even in its supranational forms – to power and its irresponsible exercise. In other words, the potential for irresponsible power is latent in the very structure of power that enables agency.160 The point here is not to merely dismiss the idea of responsible sovereignty; but, instead, to war160 This is a sensible revision of Pavel’s claim that ‘the potential for abuse is latent in the very structure of power that enables state authorities to perform their functions.’ ­(emphasis added). See Carmen E. Pavel, Divided Sovereignty: International Institutions and the ­Limits of State Authority (New York, ny: Oxford University Press, 2015) 196. See also Susan ­McManus, ‘Cosmopolitan Exception’ (2013) 9 Journal of International Political Theory 2

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rant cautiousness in imaging the future. Institutional models and operational realities need to play a more central role – in particular questions of delegation/agency in international institutions,161 and yet, a genuine reflection can take place only when the familiar dualisms - between facts and norms, power and law, polis and cosmopolis - are finally discarded.162 Bibliography Aalberts-Meeuwsen, Tanja E. and Werner, Wouter G., ‘Sovereignty Beyond Borders’, in Rebecca Adler-Nissen and Thomas Gammeltoft-Hansen (eds), Sovereignty, Selfdefense, and the Disciplining of States. Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (New York: Palgrave Macmillan, 2008) 129. Aalberts, Tanja. E., Constructing Sovereignty between Politics and Law (Hoboken: Taylor & Francis, 2012). Aalberts, Tanja. E., ‘Rethinking the Principle of (Sovereign) Equality as a Standard of Civilisation’ (2014) 42 Millennium 767. Ainley, Kirsten, ‘The Great Escape? The Role of the International Criminal Court in the Colombian Peace Process’, Justice in Conflict, 13 Oct 2016, available at https:// justiceinconflict.org/2016/10/13/the-great-escape-the-role-of-the-international -criminal-court-in-the-colombian-peace-process/ (last visited 10 Feb 2017). Amnesty International, ‘Libya: The Forgotten Victims of NATO Strikes’ (2012), available at https://www.amnesty.org/download/Documents/24000/mde190032012en .pdf (last visited 10 Feb 2017). Arab Organization for Human Rights, Palestinian Centre and International Legal Assistance Consortium, Report of the Independent Civil Society Fact-Finding Mission to Libya (2012), available at http://www.legal-tools.org/doc/c4f71a/ (last visited 10 Feb 2017). Armitage, David, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2012). Bartelson, Jens, ‘Sovereignty Before and After the Linguistic Turn’, in Rebecca AdlerNissen and Thomas Gammeltoft-Hansen (eds) Sovereignty, Self-defense, and the Disciplining of States. Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (New York: Palgrave Macmillan, 2008) 33.

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Piirimäe, Pärtel, ‘The Westphalian Myth and the Idea of External Sovereignty’, in Hent Kalmo and Quentin Skinner (eds) Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (Cambridge: Cambridge University Press, 2004) 64. Ralph, Jason G., ‘Anarchy is What Criminal Lawyers and Other Actors Make of it: International Criminal Justice as an Institution of International and World Society’, in Steven C. Roach (ed) Governance, Order and the International Criminal Court ­(Oxford: Oxford University Press, 2009) 133. Ralph, Jason G., ‘The International Criminal Court’, in Alex Bellamy and Tin Dunne (eds) The Oxford Handbook on the Responsibility to Protect. (Oxford: Oxford University Press, 2016) 638. Ramos, Jennifer M., Changing Norms through Actions: The Evolution of Sovereignty ­(Oxford: Oxford University Press, 2013). Rastan, Rod, ‘Testing Co-operation: The International Criminal Court and National ­Authorities’ (2008) 21 Leiden Journal of International Law 431. Rastan, Rod, ‘The Responsibility to Enforce: Connecting Justice with Unity’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 163. Rastan, Rod, ‘Comment on Victor’s Justice & the Viability of Ex Ante Standards’ (2010) 43 The John Marshall Law Review 569. Reus-Smit, Christian, ‘Human Rights and the Social Construction of Sovereignty’ (2001) 27 Review of International Studies 519. Roach, Steven C., ‘Introduction’, in Steven C. Roach (ed) Governance, Order and the International Criminal Court (Oxford: Oxford University Press, 2009) 1. Robinson, Darryl, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win’ (2015) 28 Leiden Journal of International Law 323. Roth, Brad R., ‘Sovereign Equality and Non-Liberal Regimes’ (2012) 43 Netherlands Yearbook of International Law 25. Rousseau, Jean-Jacques, Social Contract and Discourses (New York: E.P. Dutton & Co., 1913). Sadat, Leyla N., ‘The Evolution of the ICC: From The Hague to Rome and Back Again’ in Sara B. Sewell and Carl Kaysen, (eds) The United States and the International Criminal Court: National Security and International Law (Lanham, Md; Oxford: Rowman and Littlefield Publishers, 2000) 31. Sayer, Andrew, Why Things Matter to People: Social Science, Values and Ethical Life (Cambridge: Cambridge University Press, 2011). Schabas, William, ‘Victor’s Justice: Selecting “Situations” at the International Criminal Court’ (2010) 32 The John Marshall Law Review 535. Schwöbel-Patel, Christine (ed) Critical Approaches to International Criminal Law. An Introduction (Oxford: Routledge, 2014).

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Smeulers, Alette L., Weerdesteijn, Maartje and Hola, Barbora, ‘The Selection of Situations by the ICC: An Empirically Based Evaluation of the OTP’s Performance’ (2015) 15 International Criminal Law Review 11. Stahn, Carsten, ‘Judicial Review of Prosecutorial Discretion: Five Years On’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009) 247. Stephen, Christopher, ‘International Criminal Law: Wielding the Sword of Universal Criminal Justice?’ (2012) 61 International and Comparative Law Quarterly 55. Stirk, Peter, ‘The Westphalian Model and Sovereign Equality’ (2012) 38 Review of International Studies 641. Sutch, Peter, ‘Normative IR Theory and the Legalization of International Politics: The Dictates of Humanity and of the Public Conscience as a Vehicle for Global Justice’ (2012) 8 Journal of International Political Theory . Tallgren, Immi, ‘Completing the “International Criminal Order”’ (1998) 67 Nordic Journal of International Law 107. Thakur, Ramesh and Weiss, Thomas, ‘R2P: From Idea to Norm – and Action’ 2009 1 Global Responsibility To Protect . Teschke, Bruno, The Myth of 1648: Class, Geopolitics and the Making of Modern International Relations, Vol X (New York: Verso, 2003). Triponel, Anna F. and Williams, Paul R., ‘The Clash of the Titans: Justice and Realpolitik in Libya’ (2013) 28 American University International Law Review 775. Vattel, Emmerich de, Droit des Gens (London [Neûchatel], 1758). UN Human Rights Council, Report of the International Commission of Inquiry on Libya (2012), available at http://www.ohchr.org/EN/NewsEvents/Pages/LibyaReport.aspx (last visited 10 Feb 2017). Viola, Lora Anne, Snidal, Duncan and Zürn, Michael, ‘Sovereign (In)Equality in the Evolution of the International System’, in Stephan Leibfried, Evelyne Huber, Matthew Lange, Jonah D. Levy, Frank Nullmeier and John D. Stephens (eds) The Oxford Handbook of Transformations of the State (Oxford Handbooks Online, 2014) 222. Walker, Robert B.J., ‘Polis, Cosmopolis, Politics’ (2003) 28 Alternatives: Global, Local, Political 267. Walker, Neil, ‘The Variety of Sovereignty’, in Rebecca Adler-Nissen and Thomas Gammeltoft-Hansen (eds) Sovereignty, Self-defense, and the Disciplining of States. Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (New York: Palgrave Macmillan, 2008) 21. Wiener, Antje, The Invisible Constitution of Politics: Contested Norms and International Encounters (Cambridge: Cambridge University Press, 2008). Whyte, Jessica, ‘Always on Top: Sovereignty, the “Responsibility to Protect” and the Persistence of Colonialism’, in Jyotsna G. Singh and David D. Kim (eds) Postcolonial World. (Abingdon, Oxon: Routledge, 2017) 308.

chapter 4

Taming the Way of Conducting Hostilities in Times of Global Conflict Patrycja Grzebyk Abstract The aim of the article is to present the current state of interaction between the hrl and the loac, and to discuss the possibility of using the hrl to tame the recent tendencies in interpretation of the loac as the norms authorizing the use of force. These expansive tendencies in interpretation of the loac are particularly prominent and dangerous if we take into account the impact of globalisation with its technological development and the corresponding more global character of warfare. Globalisation facilitates states’ use of power including in the form of armed force. Therefore, the need to consider to what extent and how human rights can restrain this growing power of states. The first part addresses the tension between these two regimes in terms of the increasingly broad territorial scope of application. It examines whether the loac can be applied worldwide and whether the hrl can be applied extraterritorially. The second part describes the main differences between the principles of the loac and the hrl on the use of lethal force. Those differences often are interpreted as excluding any possibility of applying both regimes in armed conflicts, particularly by members of armed forces who – allegedly – cannot live up to legal expectations of law enforcement operations and combat operations at the same time. The third part is devoted to the possible application of the hrl and the loac at the same time in all armed conflicts, and to the theoretical and practical results of this solution.

Keywords Law of armed conflict – human rights law – use of lethal force – hostilities – right to life in armed conflicts – scope of application of the law of armed conflict – application of human rights law in armed conflicts * Adjunct Professor, University of Warsaw, [email protected]. ** The project was financed from the means of the Polish National Center of Science based on the decision no. DEC-2013/11/D/HS5/01413.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_006

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Introduction

States engaged in the ongoing armed conflict against Al-Qaeda, the Taliban, and the associated forces (till 2009 described as a ‘global war on terror’1) have now (re)discovered the usefulness of the Law of Armed Conflicts (loac) where it concerns a justification of attacks on persons allegedly threatening the security of those states. The loac is no longer perceived as the branch of law just putting uncomfortable restraints upon warfare. Instead, it is considered a far more permissive regime in comparison to the Human Rights Law (hrl). The loac does limit attacks on particular types of persons and objects, but it tends to be read as authorizing attacks on anything that falls beyond this scope. This is the reason why some states (mainly the usa and Israel) as well as a part of the scholarship oppose the application of the hrl in situation of armed conflict, in particular where it concerns extraterritorial application of the hrl. In their opinion, this would impact the effectiveness of military operations abroad.2 At the same time, these actors prefer to stretch the territorial scope of application of the loac in order to be able to apply it worldwide.3 The aim of the article is to present the current state of interaction between the hrl and the loac, and to discuss the possibility of using the hrl to tame the recent tendencies in interpretation of the loac as the norms authorizing the use of force. These expansive tendencies in interpretation of the loac are particularly prominent and dangerous if we take into account the impact of globalization with its technological development and the corresponding more global character of warfare. Globalization facilitates states’ use of power

1 See George Bush, xliii President of the United States, Military Order – Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 13 Nov.2001 in which the President stated: ‘International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the Unites States Armed Forces.’ (The Order is available at http://www.presidency.ucsb.edu/ws/?pid=63124, last visited 10 Feb 2017). 2 Richard Ekins, Jonathan Morgan, Tom Tugendhat, Clearing the Fog of Law. Saving our armed forces from defeat by judicial diktat (London: Policy Exchange, 2015) 11. 3 See Noam Lubell, Nathan Derejko, ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’ (2013) 11 Journal of International Criminal Justice 65, 77l see also Adam Roberts, ‘Counter-terrorism, Armed Force and the Laws of War’ (2002) 44 Survival 7, 11; Barry A. Feinstein, ‘The Applicability of the Regime of Human Rights in Times of Armed Conflict and Particularly to Occupied Territories: The Case of Israel’s Security Barrier’ (2005) 4 Northwestern Journal of International Human Rights 238, 263–264.

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i­ncluding in the form of armed force. Therefore, the need to consider to what extent and how human rights can restrain this growing power of states. The first part addresses the tension between these two regimes in terms of the increasingly broad territorial scope of application. It examines whether the loac can be applied worldwide and whether the hrl can be applied extraterritorially. The second part describes the main differences between the principles of the loac and the hrl on the use of lethal force. Those differences often are interpreted as excluding any possibility of applying both regimes in armed conflicts, particularly by members of armed forces who – allegedly – cannot live up to legal expectations of law enforcement operations and combat operations at the same time. The third part is devoted to the possible application of the hrl and the loac at the same time in all armed conflicts, and to the theoretical and practical results of this solution. I

Territory War (Expanding the Scope of Application of the loac and the hrl)

The simultaneous application of the hrl and the LOAC in times of armed conflict was confirmed by the International Court of Justice (icj) in several judgments.4 It was also upheld in the jurisprudence of the European Court of Human Rights (ECtHR)5 and the Inter-American Court of Human 4 See e.g. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] icj Rep 136, para 106; icj, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] icj Rep 168, para 216. 5 See e.g. Al-Skeini and Others v the United Kingdom App no 55721/07 (ECtHR 7 July 2011) para 164; Hassan v The United Kingdom App no 29750/09 (ECtHR 16 Sept 2014) para. 77. There were also several interesting Chechen cases which clearly referred to situation of a non-­ international armed conflict, however the Court did not refer to the loac as Russia did not formally derogate from its obligations enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 Nov 1950, 213 unts. 222 (echr), based on the Art 15, that’s why the Court formally was talking about peacetime, see e.g. ECtHR, Former First Section Judgments: Esmukhambetov and Others v Russia App no 23445/03 (ECtHR 29 March 2011) para 138 ff; Isayeva v Russia App no 57950/00 (ECtHR 24 Feb 2005) para. 209 ff; Isayeva, Yusupova and Bazayeva v Russia App nos 57947/00, 57948/00 and 57949/00 (ECtHR 24 Feb 2005) para. 168 ff. See also William Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 ejil 741.

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Rights,6 as well as in the decisions of regional and national bodies.7 Despite this fact, opinions continue to be voiced to the effect that the hrl cannot be applied in armed conflicts, as it does not take into account the specific circumstances of warfare.8 In turn, the loac is presented as the branch of law which is an expression of a worldwide consensus on the ideal balance between humanity and military necessity. This opinion neglects the fact that even the Security Council reminded the states that ‘essential and inalienable human rights should be respected even in the vicissitudes of war’,9 which proves that universal consensus does not exclude the application of human rights standards in armed conflicts. The tension between these two branches of the international law sharpened when, in the time following 2001 (ie beginning of the global war on terrorism), the scope of geographic application of each of them grew considerably. The LOAC can be applied only during an armed conflict. If there is no armed conflict, the situation can be assessed only from the perspective of the hrl. Moreover, depending on the classification of the conflict as an international or a non-international one, different norms of conventional and customary law apply.10 In international armed conflict, all Geneva Conventions Relative to the Protection of War Victims of 1949 (gc)11 apply, along with 6

See e.g. Inter-American Court of Human Rights, Bàmaca Velásquez v Guatemala Case no. 11/129 (25 Nov 2000) para 209. See more in Cordula Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310, 321; idem, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 International Review of the Red Cross 501, 517 ff. 7 See e.g. African Commission on Human and Peoples’ Rights, Commission Nationale des Droits de l’Homme et des Libertes v Chad Comm No 74/92 (1995) para 21 where the Commission stated: ‘The African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter.’ 8 See e.g. Feinstein (n 3) 245–247. 9 See un Security Council Resolution 237, 14 June 1967, S/Res/237. 10 The compilation of the customary rules of the loac prepared by the International Committee of the Red Cross was published in Jean-Marie Henckaerts, Louise Doswald-Beck, Customary International Humanitarian Law, Volume i: Rules (Cambridge: Cambridge University Press, 2005) 3 ff. This compilation was a result of works undertaken in response to the Resolution 1 adopted by the 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 Dec 1995 in which the Conference endorsed and mandated the icrc to prepare a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts. 11 Geneva Conventions Relative to the Protection of War Victims, 12 Aug 1949, 75 unts 31.

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their First A ­ dditional Protocol of 1977 relating to the Protection of Victims of International Armed Conflicts (ap i).12 In non-international armed conflict, depending if a non-state party to the conflict controls part of the state’s territory, either the Second Additional Protocol of 1977 to the gc of 1949 relating to the Protection of Victims of Non-International Armed Conflicts (ap ii) or only Article 3 of the gc apply. An international armed conflict (iac) exists if the parties to the conflict are states or a state and peoples who are ‘fighting against colonial domination, alien occupation or racist regime’ (Article 1 of the gc and Article 1(4) ap i.). The threshold of hostilities which must be attained in order to qualify a situation as an iac is very low in comparison to non-international armed conflicts (niacs); any recourse to armed force by one state against another state triggers the application of the loac.13 This means that from the very first victim, first bullet shot, or the occupation of the smallest part of the territory of another state, the loac must be applied.14 The geographic scope of the application of the loac in an iac is not determined by the gc and the ap i. That is why it can be assumed that the loac can be applied in every place where there are hostilities between states (or a state and people exercising their right to selfdetermination). It does not matter if this is the territory of the hostile states or a territory which is exempted from any state’s jurisdiction, e.g. the High Seas or the Outer Space.15 In a niac, the crucial issue is to differentiate between ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of 12 13

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First Additional Protocol Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 unts 3. The commentary to the Geneva Conventions of 1949 emphasizes that, in order to classify an armed conflict as an international one: ‘[i]t makes no difference how long the conflict lasts, or how much slaughter takes place’. Jean Pictet (ed), Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: International Committee of the Red Cross, 1952) 32. However, it must be noted that the International Criminal Tribunal for the former Yugoslavia has suggested that requirements of intensity also apply to international armed conflicts, icty, Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 Oct 1995, para 70 (‘These hostilities exceed the intensity requirements applicable to both international and internal armed conflicts’). Marco Sassòli, Antoine A. Bouvier, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol i, 2nd ed (Geneva: International Committee of the Red Cross, 2006) 116. Yoram Dinstein, War, Aggression and Self-Defence, 5th ed (Cambridge: Cambridge University Press, 2011) 23–24.

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v­ iolence and other acts of a similar nature’ to which the loac cannot be applied (Article 1(2) ap ii) and a non-international armed conflict to which few conventional provisions of the loac apply. Neither the gc nor the ap ii define a niac. However, in the widely quoted statement of the International Tribunal for the former Yugoslavia, the tribunal emphasized that a non-international armed conflict exists when there is a ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.’16 This means that in order to classify a situation as an internal armed conflict, a minimum level of intensity, including duration (as the icty’s definition stresses that the conflict must be protracted), must be achieved. In the literature and in the jurisprudence, the following factors are treated as indicators of an armed conflict: the deployment of armed forces instead of police; the number of armed forces and partisans involved in hostilities; collectiveness and frequency of fighting; the number of casualties; displacement of civilians; detention of fighters; usage of heavy weaponry; and a relatively wide geographical scope of hostilities.17 In addition, in every niac there must be clear parties to the conflict, which means that a non-state armed group involved in the conflict should be organized to such an extent it can be considered as a party to the conflict.18 Thus, this group must have organized armed forces with a command structure, and be able to conduct military operations. In order to apply the ap ii, as it was mentioned above, it is necessary to assess that an armed group exercises ‘such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’ (Article 1(1) ap ii). If a state is engaged in hostilities against different armed groups, it means that it is engaged in distinct armed conflicts with every armed group separately, even if the military operation is labeled as ‘counterterrorism’ or a ‘conflict with Al-Qaeda and associated forces’. In consequence, it must be assessed if hostilities between governmental forces and the specific armed group (and only this group) have reached a level of an armed conflict. The crucial determination is whether we must take into account hostilities in the territory of only one state, or whether it is possible to accumulate incidents which take place in different parts of the world. That is why it is important to indicate the geographic scope of a niac. 16 17

18

icty, Prosecutor v Tadic (n 13) para 70. See e.g. Prosecutor v Ljube Boškoski, Johan Tarčulovski Judgment IT-04-82-T, 10 July 2008, paras 177–178. See also remarks in Patrycja Grzebyk, ‘Classification of the Conflict between Ukraine and Russia in International Law (Ius ad Bellum and Ius in Bello)’ (2015) 34 Polish Yearbook of International Law 39, 51 ff. See common Art 3 of the gc which refers to ‘each Party to the conflict’.

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The ap ii requires that a niac must ‘take place in the territory of a High Contracting Party’ (Article 1(1) ap ii), while Article 3 of the gc requires only that a niac must occur ‘in the territory of one of the High Contracting Parties’ which would suggest that it is necessary to occur in the territory of one of the High Contracting Parties (hcp), but it does not exclude a spillover of a niac to the territory of other (usually neighbouring) states. Another possible interpretation allows for understanding the term ‘one hcp’ mentioned in Article 3 of the gc as ‘a hcp’ (per analogiam to the ap ii regulation). In consequence, taking into account in particular that the gc have more parties (196) than there are un members (193), which is a clear proof of their customary character,19 the territorial dimension of Article 3 is no longer relevant.20 However, there is no consensus among scholars if a foreign engagement in the territory of another state internationalizes the entire conflict, or if it means that two types of conflicts – international and non-international – are taking place simultaneously. The problem especially arises when state B does not give its consent to hostilities being conducted on its territory by state A against some armed groups. On the one hand, in light of the letter of the ap ii, a niac is a conflict in the territory of a hcp between its (!) armed forces and dissident forces or other organized armed groups. This suggests that in case of engagement of foreign armed forces against an armed group in the territory of another state, the conflict cannot be classified as a non-international one.21 This is particularly evident considering that in case of occupation of the territory which is met with no resistance (thus there are no hostilities between two states), the law of international armed conflicts still applies (Article 1(4) of the gc). Clearly, the question of where the military operation is conducted must have some relevance. On the other hand, the regulation of the occupation can be treated as exceptional. The principle of exceptiones non sunt extandae would then allow us to neglect the occupation example, and to stress the importance of parties to the conflict (ie between whom the conflict is occurring). In consequence, in the above mentioned situation of a foreign intervention, it is possible to classify it both as an international armed conflict (in terms of protection of the population of state B and eventual clashes between governmental armed 19

20

21

Eritrea-Ethiopia Claims Commission, Partial Award, Prisoners of War, Ethiopia’s Claim 4, between the Federal Democratic Republic of Ethiopia and the State of Eritrea. The Hague, 1 July 2003, paras 30–32. Katja Schöberl, ‘Boundaries of the Battlefield: The Geographical Scope of the Laws of War’, in Stephen Barela (ed) Legitimacy and Drones. Investigating the Legality, Morality and Efficacy of ucavs (Farnham: Ashgate, 2015) 83. Ibid, 76.

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forces of states A and B) and as a simultaneous non-international armed conflict (in terms of hostilities between the armed forces of state A and the armed group operating in state B).22 The icty also offered a cue as it described a niac in opposition to an iac. This would mean that any clashes taking places not between governmental forces of two or more states must be classified as a niac.23 If the loac does not put any limits on its geographic scope of application, as its focus is on the parties to the conflict and not where the conflict takes place, this would mean that any hostilities between e.g. American forces and Al-Qaeda and its associates might be treated as a part of the same conflict.24 Doubts can however arise if a particular terrorist/armed group is organized enough to be treated as a party to the niac, and – even more importantly – if the level of hostilities between this group and a state is sufficient to talk about an armed conflict to which the loac would apply.25 If the answers to both of these questions are positive, it can be argued that members of the armed group, as well as civilians taking direct part in hostilities (but also members of governmental armed forces), carry the armed conflict with them wherever they move,26 even if it means that the conflict would take place thousands of miles away from the active battlefield. In consequence, the loac could be applied worldwide in the framework of the conflict between a particular state and the armed group or groups. This interpretation has gained support within American administration.27 The expansion of the application of the loac was mirrored by the enlargement of the geographic scope of the hrl. This development is opposed ­mainly

22

See Lindsey Cameron, Bruno Demeyere, Jean-Marie Henckaerts, Eve La Haye and Iris Müller, with contributions by Cordula Droege, Robin Geiss and Laurent Gisel, Commentary of 2016 to Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, Art 3, paras 402–413. 23 Compare with Hamdan v Rumsfeld, 29 June 2006, 548 us 557, 126 S. Ct. 2749, 66. 24 Ibid. 25 See Noam Lubell, ‘The War against Al-Qaeda’, in Elizabeth Wilmshurst (ed), International Law and the Classification of Conflicts (Oxford: Oxford University Press, 2012) 424 ff. 26 Schöberl (n 20) 73. 27 See speech of Harold Hongju Koh (Legal Adviser, u.s. Department of State) on ‘The Obama Administration and International Law’ at the Annual Meeting of the American Society of International Law, Washington, dc, 25 March 2010 (available at at https://www.state.gov/ documents/organization/179305.pdf (last visited 10 Feb 2017)); see also Harold Hongju Koh, ‘The Lawfulness of the u.s. Operation Against Osama bin Laden’, Blog Opinio Iuris, 19 May 2011 (available at http://opiniojuris.org/2011/05/19/the-lawfulness-of-the-us-operation -against-osama-bin-laden/ (last visited 10 Feb 2017)).

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by the usa28 and Israel,29 which stress that the International Covenant on Civil and Political Rights of 1966 (iccpr)30 should be applied only to individuals within their territory and subject to their jurisdiction (Article 2(1) iccpr). Thus, extraterritorial application of the iccpr must be excluded, particularly in situation of armed conflicts when the loac is applied.31 However, the International Court of Justice, in its advisory opinion of 9 July 2004 entitled Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, stressed that the iccpr is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.32 Also, the Human Rights Committee (hrc) has noted that states parties are required to ensure the Covenant rights ‘to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.’33 The European Court of Human Rights had a simpler task, as the echr requires that states parties secure human rights to everyone within their jurisdiction (­Article 1 28

29

30 31 32 33

Human Rights Committee regularly from 1995 notes that the us maintains ‘the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory’ (see CCPR/C/USA/CO/4, 23 April 2014, para 4.) ‘nor in time of war’ (see CCPR/C/USA/CO/3/Rev.1, 18 Dec 2006, para 10). See also Fiftieth session, Report of the Human Rights Committee A/50/40, 3 Oct 1995, para 284. However, within American administration there are some doubts concerning possibility of extraterritorial application of the hrl, see Gloria Gaggioli, ‘Lethal Force and Drones: The Human Rights Question’, in Stephen Barela (ed) Legitimacy and Drones. Investigating the Legality, Morality and Efficacy of ucavs (Farnham: Ashgate, 2015) 96. Human Rights Committee (hrc) regularly regrets that ‘the State party continues to maintain its position on the non-applicability of the Covenant to the Occupied Territories, by claiming that the Covenant is a territorially bound treaty and does not apply with respect to individuals under its jurisdiction, but outside its territory’ and ‘It is further concerned at the position of the State party that international human rights law does not apply when international humanitarian law is applicable’ (see CCPR/C/ISR/CO/4, 21 Nov 2014, para 5; and also CCPR/C/SR.1675, 21 July 1998, paras 23, 25; CCPR/CO/ISR/3, 3 Sept 2010, para 5; CCPR/CO/78/ISR, 21 Aug 2003, paras 11 and CCPR/C/79/Add.93, 18 Aug 1998, para 10; CCPR/C/ISR/2001/2, 4 Dec 2001, para 8. International Covenant on Civil and Political Rights, New York, 16 Dec 1966, 999 unts 171. See Barry Feinstein (n 3) 241. Legal Consequences of the Construction of a Wall (n 4) para 109. See also Armed Activities (Democratic Republic of the Congo v Uganda) (n 4) para 216. hrc, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, un Doc CCPR/C/21/Rev.1/Add.13 (2004). See also, hrc, Sergio Euben Lopez Burgos v Uruguay, Comm no R.12/52, un Doc Supp No 40 (A/36/40) at 176 (1981), paras 12.1–12.3;. hrc, Lilian Celiberti de Casariego v Uruguay, Comm no R.13/56, un Doc Supp no 40 (A/36/40) at 185 (1981), para 10.1.

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echr); there was no territorial link expressly mentioned.34 Just like the hrc, the ECtHR easily accepted the responsibility of a state for the actions of its agents abroad where an individual was under the control of the state35 or in situation of the occupation of the territory of another state party.36 However, it was initially reluctant to apply the Convention extraterritorially in the territory of a non-state party where hostilities were taking place to which the loac should be applied. In the decision of the Grand Chamber in the Banković case the Court emphasized that [t]he case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.37 In the case at hand, concerning the bombing of Radio Televizija Srbije by the nato forces which resulted in death of sixteen persons and serious injuries of another sixteen persons, the Court was of the opinion that a sufficient level of control was not achieved but what was perhaps more important, the bombing took place in the territory which was outside espace juridique of the echr. The Court was apparently willing to apply the Convention extraterritorially, but only in cases when the territory in normal circumstances would be covered by 34

35 36 37

A similar solution was adopted in the American Convention on Human Rights, 22 Nov 1969, 1144 unts 123 which in the Art 1 states: ‘The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction.’ In case of the African Charter on Human and People’s Rights, 27 June 1981, oau Doc CAB/LEG/67/3 rev. 5, 21 i.l.m. 58 (1982) the states parties to the Charter ‘shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.’ so the Charter does not even have a requirement for a person to be in the jurisdiction of a member state. See e.g. Öcalan v Turkey App no 46221/99 (12 May 2005) para 91; Issa and Others v Turkey App no 31821/96 (16 Nov 2004) para 55. See e.g. Cyprus v Turkey App no 25781/94 (10 May 2001) paras 78, 80. ECtHR, Decision as to the Admissibility of App no 52207/99 by Vlastimir and Borka Banković, Živana Stojanović, Mirjana Stoimenovski, Dragana Joksimović and Dragan Suković against Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, ­Turkey and the United Kingdom (19 Dec 2001) para 71.

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the Convention (e.g. in situation of occupation of a state party to the Convention by another state party to the Convention). Yet the Court would exclude applicability of the Convention in other parts of the world.38 Some scholars assume that the time of the issuing of the judgment (just after 11 September 2001) may have had an impact on the approach of the Court.39 However, in subsequent judgments the Court changed the line of reasoning. It applied the Convention in the situation of occupation outside the espace juridique of the Convention,40 in case when a particular person was under the control of the state during hostilities because of detention,41 and also in case of hostilities when neither the territory nor the person could be perceived as being ­under the control of the state party to the Convention.42 However, the Court appeared to not require the fulfilment of impossible obligations. It stressed that depending on the situation of the individual, the conventional rights can be appropriately ‘divided and tailored’.43 In consequence, according to many international organs, both branches of international law, i.e. hrl and loac, are profoundly expanding their scope of application, which must result in more frequent discussions as to which regime should prevail in a specific situation. The question is of great importance as both branches of law have – at least at first sight – completely different approaches to the possibility and mode of conducting hostilities. II

Condemned to Fight (Differences in Approach to Hostilities between the loac and the hrl)

There are many differences between the loac and the hrl, from the genesis, the history, the philosophy, the sources, the principles, the character, and the personal, material and time scope of application, to the measures of implementation.44 The differences between the loac and the hrl are especially evident 38 39

Ibid, para 80. Karima Bennoune, ‘Toward a Human Rights Approach to Armed Conflict: Iraq 2003’ (2004–2005) 11 u.c. Davis Journal of International Law and Policy 171, 228. 40 See e.g. Al-Skeini (n 5) paras 132–142. 41 See Hassan (n 5) paras 74–77. 42 See Jaloud v The Netherlands App no 47708/08 (20 Nov 2014) paras 139–151. 43 Ibid, para 154; Al-Skeini (n 5) para 137; ECtHR; Banković (n 37) para 75. 44 See Droege, ‘The Interplay’ (n 6) 312 ff; idem, ‘Elective Affinities’ (n 6) 521 ff; Michelle A. Hansen, ‘Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law into Armed Conflict (2007) 194 Military Law Review 1, 6 ff, Feinstein (n 3) 245 ff; Louise Doswald Beck, ‘International Humanitarian Law: A Means of Protecting Human

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in the principles concerning the use of lethal force. The loac in iacs permits attacks based on the status of persons (combatants45) and objects (military objectives46), and additionally based on the current conduct of persons (direct participation in hostilities47). As a result, armed forces of the enemy as well as civilians supporting them in hostilities can be eliminated comparatively easily, without the need for long proceedings before courts or investigations in every case of loss of life. In the framework of non-international armed conflicts, as the status of members of non-state armed groups (as well as of members of governmental armed forces) was not clear according to the conventional law and the customary law,48 it was possible to argue that those categories of persons should be treated as a part of civilian population therefore they can be attacked only while taking direct part in hostilities as it the case with a civilian.49 Within the niac, it was therefore not the status, but rather the type of activity (engagement in hostilities) that determined the classification of the person as a possible lawful target. However, states were complaining that this solution is unrealistic; they could not accept a situation in which a person who is a regular fighter can easily regain their protection when they end their participation in military operation (a ‘revolving door’ rule). In consequence, there was a strong tendency to broaden possible targets. The concept that membership in an armed group should be treated as a kind of continuous participation in hostilities gained support,50 as it permitted the states to attack members of an armed group at all times and not only during the time of their direct involvement in hostilities. The International Committee of the Red Cross, in the Interpretive Guidance on the Notion of Direct Participation on Hostilities under International Humanitarian Law of 2009, went even further. It accepted the existence of the status of a member of an armed group who can be attacked at all time; this is also the case with regard to members of governmental armed forces. In consequence, the Guidelines introduced a status-based approach to the use of lethal force in

45 46 47 48 49 50

Rights in Time of Armed Conflict’ (1989) 1 African Journal of International and Comparative Law 1989 615 ff. Art 43 ap i. Ibid, Art 52 (2). Ibid, Art 51 (3). Henckaerts, Doswald-Beck (n 10) 12. Art 13 (3) ap ii. Melzer Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: International Committee of the Red Cross, 2009) 27.

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niacs.51 The Guidelines are not formally binding. Yet in light of the fact that the legal possibility of attacking those having continuous combat function within an armed non-state group was well received and implemented by states, this approach could be perceived as gaining the status of a customary norm. The consequence of the above-mentioned solution is that even if a person does not use or even does not have a weapon on their person, they can be killed based on the assumption that they have a combat function within an armed group. This person’s status dooms them to the attack, even if they are not endangering anyone at the moment. This stands in opposition to the hrl approach.52 Taking into account that members of armed groups are usually not distinct from civilians, the result is that in niacs, the civilian population is endangered: killing a person can be easily explained by saying that despite their appearance, the person was a legitimate target because of their role within an armed group. Add to this the loac’s possible worldwide applicability, and it appears that a person located thousands of kilometres from the battlefield still can be simply shot (even if they offer no resistance) based on their status. This must raise doubts. After all, this means that the person cannot disengage and lose the status of a member of the armed group by merely leaving the hostilities zone. This also potentially opens wide doors for states to eliminate undesirable individuals using possibilities offered by modern military technology. A completely different approach to the use of lethal force can be observed in the hrl. The echr is the most precise as it explicitly allows states to intentionally deprive someone of their life only in limited instances, such as. the execution of a court sentence following a conviction for a crime for which this penalty is provided by law; in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection (Article 2 echr). At the same time, it stresses that in ‘time of war or other public emergency threatening the life of the nation’ the derogation from the obligation to respect right to life is impossible except ‘deaths resulting from lawful acts of war’ (Article 15). It must be however noted that states rarely derogate from the echr.53 The reason is their unwillingness to admit that the state .

51

52 53

hrc, Fourteenth session, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Addendum: Study on targeted killings, 28 May 2010, A/HRC/14/24/Add.6, para 65. Compare with Nachova and Others v Bulgaria App nos 43577/98 and 43579/98 (6 July 2005) para 95. Recently on 9 June 2015 the General Secretariat of the Council of Europe registered a declaration by the Government of Ukraine to the effect that it exercises the right of

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is engaged in an armed conflict, and especially in a niac, because this would mean admitting that there is a non-state actor which can be considered as a party to the conflict (suggesting its equal status with governmental ­forces), implying that the state does not control the situation. Therefore, the fact that derogations are rare cannot be considered conclusive evidence that states want to apply the hrl in armed conflicts extraterritorially. Actually, it could also be argued that states do not derogate as they are convinced that there is no legal need to do so, as the echr does not apply in the above situations. In addition, the fact that Article 15 of the echr mentions ‘lawful acts of war’ does not mean that this lawfulness should be assessed only from the point of view of the loac with a complete disregard for the hrl standards, especially in case of niacs which are so poorly regulated by the loac. The question about appropriateness of the usage of the notion of ‘war’ in reference to any niac can be also raised. As far as universal instruments are concerned, the iccpr simply generally prohibits arbitrary deprivation of life (Article 6) even in ‘time of public emergency which threatens the life of the nation’ (Article 4), so there is no possibility of derogation from the obligation to respect the right to life. However, situations in which lethal force can be used are specified in e.g. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990, which stress that ‘intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’,54 while the commentary to the Code of Conduct for Law Enforcement Officials of 1979 notes that that force must be used exceptionally only ‘for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders.’55 In consequence, according to the hrl, there is no room for a status-based authorization to kill anyone. Consequently, it cannot be planned in advance that some categories of persons can be killed; other measures must always be taken into account and the whole operation must be planned in such a way as to minimize the risk of death or injury.56 Not surprisingly, the supporters of the hrl approach

54

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56

d­ erogation (see Press Release, echr 296 (2015), 1 Oct 2015. The Basic Principles were adopted by the Eighth un Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 Aug–7 Sept 1990, available at http:// www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx (last visited 10 Feb 2017). The Code was adopted by the General Assembly resolution 34/169 on 17 Dec 1979, available with commentary at http://www.ohchr.org/EN/ProfessionalInterest/Pages/LawEn forcementOfficials.aspx (last visited 10 Feb 2017). Droege, ‘The Interplay’ (n 6) 344–345.

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to hostilities do not see how, in the light of the hrl, e.g. killing of conscripts could be justified.57 In addition, from the point of view of the hrl, it is significant for what reasons the force was used (for the sake of self-defence or as an aggression), as this impacts the assessment of lawfulness of the attack.58 In contrast, the loac does not take into account the ius contra bellum at all, as attacks of both the aggressor and the self-defending state are assessed exactly in the same manner.59 A significant part of the loac doctrine claims that if a person is a lawful target, they can be killed without any warning. This means that it is possible to use the ‘shoot to kill’ doctrine instead of the hrl-promoted ‘use of graduated force’.60 In consequence, the loac justifies a killing of a child soldier who was drafted (against the binding international law61) and therefore is qualified as a combatant and a lawful target (Article 4 gc iii, Article 43 ap i), even while resting. The hrl allows for the use of force which is no more than absolutely necessary, so the use of lethal force will be extremely limited.62 57 58

59

60

61

62

Bennoune (n 39) 186–187, 193, 205. Ibid, 214–215; William A. Schabas, ‘Lex specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Ius ad Bellum’ (2007) 40 Israel Law Review 592, 606. See also Isayeva (n 5), para 191. See Preamble of the ap i (‘Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.’). See e.g. Thomas Michael McDonell, ‘Sow What You Reap? Using Predator and Reaper Drones to Carry Out Assassinations or Targeted Killings of Suspected Islamic Terrorists’ (2012) 44 George Washington International Law Review 243, 273; Richard S Taylor, ‘The Capture versus Kill Debate: Is the Principle of Humanity Now Part of the Targeting Analysis When Attacking Civilians Who Are Directly Participating in Hostilities?’ (2010) 6 Army Law 203, 204. See e.g. Art 77 (2) ap i; Art 4(3)(c) ap ii; Art 38(3) of the Convention on the Rights of the Child, 20 November 1989 1577 unts 3; Article 22 (2) of the African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990); Art 8(2)(b)(xxvi) and (e) (vii) of the Rome Statute of the International Criminal Court, 17 July 1998, 2187 unts 90, 2187 unts 3; Rule 136 of the Customary International Humanitarian Law, Henckaerts, Doswald-Beck (n 10) 482. See e.g. McCann and Others v The United Kingdom App no 18984/91 (ECtHR 27 Sept 1995) paras 148–149; hrc, Husband of Maria Fanny Suarez de Guerrero v Colombia Comm no R.11/45, un Doc Supp no 40 (A/37/40) at 137 (1982) para 13.2. See also para 4 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (n 54) which state: ‘Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force

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This ­requirement must be fulfilled even in exceptional circumstances, also those allowing for derogation (based e.g. on Article 15 echr).63 Thus in the above situation, the hrl would require the capture of the child soldier, instead of immediate killing. Another difference lies in the understanding of the principle of proportionality, which must be applied at least in the iacs (Articles 51(5)(b), 57(2) (a)iii, 57(b) ap i).64 The principle of proportionality allows the killing of civilians if these losses would not be ‘excessive in relation to the concrete and direct military advantage anticipated.’ However, there is no common standard of understanding of proportionality, so the ratio of civilian losses to military gains can vary from 1:2 to 100:1 depending on the tradition, experience of the commander, as well as the assessment of the value of the death of the target and life of civilians.65 The loac does not specify which proportions are still allowed and which are excessive or clearly excessive, thus entailing criminal responsibility (see Article 85 ap i).66 In case of the hrl, the losses must always be proportionate to the aim of protecting life,67 so civilian losses cannot be more than absolutely necessary. From the point of view of the hrl, it would be impossible to accept the ratio 100:1 based on the high position of the target in the hierarchy of the armed group or to assess as proportional killing civilians in order to e.g. prevent access to the fuel for members of an armed group (Kunduz incident of 4 September 2009).68 If we take into account the differences mentioned above, the position of states such as the usa or Israel (which argue the impossibility of simultaneous

63

64

65

66 67 68

and firearms only if other means remain ineffective or without any promise of achieving the intended result.’ Francesco Bruscoli, ‘The Rights of Individuals in Times of Armed Conflict’ (2002) 6 The International Journal of Human Rights 45, 47. See also Basic Principles (n 54) para 8 which states that: ‘exceptional circumstances, such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.’ According to the icrc Study on Customary International Humanitarian Law (Rule 14), the principle of proportionality must be applied also in niacs, Henckaerts, DoswaldBeck (n 10) 46. Stuart Casey-Maslen, ‘Pandora’s Box? Drone Strikes Under Ius ad Bellum, Ius in Bello and International Human Rights Law’ (2012) 94 International Review of the Red Cross 597, 612 ff. Compare with Art 8(2)(b)(iv) of the Rome Statute (n 61). Droege, ‘The Interplay’ (n 6) 345. More on Kunduz incident see Deutsche Welle, ‘German prosecutors drop case against Kunduz airstrike colonel’, 1 April 2012, http://www.dw.de/german-prosecutors-drop-case -against-kunduz-airstrike-colonel/a-5483181-1 (last visited 10 Feb 2017).

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application of hrl and loac) seems to be completely justified and convincing. The discrepancy between both regimes coupled with broadening territorial scope would legitimize application of loac worldwide in a global conflict with a non-state armed group as the only possible regime which was – in fact – designed for the purpose of conducting hostilities while armed conflict as such is against the principles of hrl. However, the result of this reasoning would be unrestricted use of force by states giving them excessive, uncontrollable power. Therefore, there is a compelling need to refer to hrl in order to tame this power and indicate a way to reconcile both regimes in times of armed conflict, especially of allegedly global character. III

Possible Mutual Understanding Policy

The echr has emphasized [t]hat the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Court must also take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity with the governing principles of international law …. [T]he Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part ….69 This mean that in the situation of an armed conflict it is impossible to neglect the loac, but at the same time the hrl cannot be completely disregarded. However, this quotation must be understood also to mean that the obligation to apply the hrl in armed conflicts cannot deprive the loac all its meaning. As Yoram Dinstein rightly pointed out: ‘Should nothing be theoretically permissible to a belligerent engaged in war, ultimately everything will be permitted in practice – because the rules will be ignored.’70 In consequence, it is noticeable that the hrl tribunals have never undermined the lawfulness of killing combatants in iacs or rebels in niacs.71

69 70 71

Banković (n 37), para 57. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004) 1–2. See e.g. Isayeva (n 5) para 180; Isayeva, Yusupova and Bazayeva (n 5) para 178. See also Marco Sassòli, Laura M. Olson, ‘The Relationship between International Humanitarian

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Majority of states are parties to the main instruments of both the loac and the hrl. We can therefore assume that they did not perceive those instruments as contradicting each other. In any case, the travaux préparatoires neither indicate that states excluded the applicability of the hrl in armed conflicts nor prove that states were willing to apply it.72 In consequence, the attempt to harmonize these two branches of international law is necessary to establish ‘a single set of compatible obligations’.73 This is more than welcome by those engaged in hostilities; they want to avoid criminal responsibility for violations of the loac and the hrl. It is significant that the echr is willing to refer to the loac norms even if states had not formally derogated according to Article 15. This practice complies with Article 31 of the Vienna Convention on the Law of Treaties of 1969,74 which requires that ‘[a]ny relevant rules of international law applicable in the relations between the parties’ must be taken into account while interpreting a treaty. It must also be noted that some treaties explicitly demand the interplay of both (the LOAC and the hrl) regimes.75 Thus, the hrc rightly stressed that these two spheres of international law are complementary rather than mutually exclusive.76 In relation to the conditions of using lethal force, the icj stressed the role of the loac in the assessment of arbitrariness of deprivation of life.77 However, the description of the loac as a lex specialis by the icj was misleading78 and in consequence abandoned in the subsequent judgments. The loac definitely is quite precise in answering the question who can be attacked in iacs. Yet it does not give clear answers concerning possible human targets in niacs, how

72 73

74 75

76 77 78

and Human Rights Law: Where It Matters: Admissible Killing and Internment of Fighters in Non-international Armed Conflicts’ (2008) 90 International Review of the Red Cross 599. See Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press, 2011) 39, 108 ff. Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, in: Yearbook of the International Law Commission 2006, vol ii, Part ii, 178 (‘A norm may assist in the interpretation of another norm for example as an application, clarification, updating, or modification of the latter. In such situation, both norms are applied in conjunction.’). Vienna Convention on the Law of Treaties, 22 May 1969, 1155 unts 331. See e.g. Art 21 of the Rome Statute (n 61) or General Assembly Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 21 March 2006, A/Res/60/147. hrc, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, un Doc CCPR/C/21/Rev.1/Add.13 (2004) para 11. Legality of the Threat or Use of Nuclear Weapons (n 4) para 25. Droege, ‘The Interplay’ (n 6) 337 ff.

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force can be used against lawful targets, and how the proportionality should be assessed. Answers to these questions cannot be found in the customary loac either. In result, the (different) standard in the hrl would have to be taken into account in order to fill the gap, to complement the apparently insufficient loac rules or to decide which line of interpretation of the loac provisions should prevail.79 Contrary to appearances, there are great similarities between both branches. It also seems that their approach to use of lethal force is merging and bona fide interpretation of their norms brings the same results, especially with regard to niacs.80 This could be observed for instance in reference to the obligation of taking appropriate precautions, which is expressed not only in the loac (Article 57 ap i) but also in numerous ECtHR judgments.81 Both branches of law have humanitarian values at their roots. It is worth noting that for example Israel mentions that it ‘remained committed to upholding the relevant norms and principles of human rights as set down in humanitarian law.’82 This can be understood as acceptance of application of the hrl seen through the lens of the loac or, in other words, the loac interpreted in the light of the hrl. Let us now consider the ‘shoot to kill’ tactic. Even among the loac scholars there is a strong tendency to argue that force, if possible, should be used gradually, taking into account the principle of necessity and prohibition of treacherous killings83 and the fact that the choice of means of injuring enemy is not unlimited.84 Jean Pictet urged to ‘not inflict more harm on your enemy than the purpose of the war demands’,85 so ‘[i]f we can put a soldier out of action by capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill him. If there are two means to achieve the same military advantage, we must choose the one which causes the lesser

79 80 81

82 83 84

85

A/HRC/14/24/Add.6 (n 51) para 29. Sassòli, Olson (n 71) 601; Bruscoli (2002) 56–57. Ergi v Turkey App no 66/1997/850/1057 (ECtHR 28 July 1998) para 79; Isayeva (n 5) para 176; Özkan and Others v Turkey App no 21689/93 (ECtHR 6 April 2004) para 297; McCann (n 63) para 150, 194. hrc, Sixty-third session, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Initial report of Israel, 21 July 1998, CCPR/C/SR.1675, para 25. Sassòli, Olson (n 71) 606. See e.g. Art 22 of the Convention (iv) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land. The Hague (18 Oct 1907); Art. 35 ap i. Jean Pictet, Humanitarian Law and the Protection of War Victims (Geneva: Henry Dunant Institute, 1975) 32.

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evil.’86 The same principle was adopted in the above-mentioned Interpretive Guidance on the Notion of Direct Participation on Hostilities under International Humanitarian Law, which reads: ‘the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.’87 This means that the hrl approach to minimization of lethal use of force also against lawful targets can be found in the loac too, and the hrl can just tip the balance in favour of a more humanitarian understanding of the loac norms. It is true that the loac allows subjects to kill civilians if civilian losses are not excessive in relation to the concrete and direct military advantage anticipated (Article 51(5) ap i). Yet in some circumstances the hrl also accepts killing innocent people, for instance when they are bystanders.88 The impact of the hrl would be a stricter approach to the proportionality principle envisaged in the loac norms. This is a need also felt by the LOAC scholars, because the vague expression ‘excessive’ contained in Articles 51(5)(b), 57(2)(a)iii, 57(b) ap i (for which no definition is provided) leaves too much room for abuse. The loac does not require the investigation of all deaths incidents,89 while the hrl considers assessment of circumstances of death to be an element of the protection of the right to life.90 However, if there are doubts concerning the lawfulness of killing a person, the loac puts special burdens on commanders to initiate penal or disciplinary action against violators (Article 87 ap i). The hrl also takes into account the armed conflict situation and applies a different standard of due diligence.91 So it is possible for the hrl and the LOAC 86 87 88

89 90

91

See Jean Pictet, Development and Principles of International Humanitarian Law (Dordrecht: Nijhoff, 1985) 75. Interpretive Guidance (n 50), ix. See e.g. Kerimova and Others v Russia App nos 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05 (ECtHR 3 May 2011) para 246; Andronicou and Constantinou v Cyprus App no 86/1996/705/897 (ECtHR 9 Oct 1997) para 194. See e.g. Art 121 iii gc; Art 131 iv gc. Kaya v Turkey App no 158/1996/777/978 (ECtHR 19 Feb 1998) para 91 (‘The Court notes that loss of life is a tragic and frequent occurrence in view of the security situation in southeast Turkey …. However, neither the prevalence of violent armed clashes nor the high incidence of fatalities can displace the obligation under Article 2 to ensure that an effective, independent investigation is conducted into deaths arising out of clashes involving the security forces, more so in cases such as the present where the circumstances are in many respects unclear.’). See also Isayeva (n 5) para 209 ff. Isayeva (n 5) para 210; Jaloud v The Netherlands App no 47708/08 (ECtHR 20 Nov 2014) para. 226.

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to meet in the middle, as consensus can be reached: in some circumstances, a general statement on the causes of death would be sufficient from the point of view of both branches of law. The fact that the hrl is not indifferent to the question of the ius ad bellum does not hinder the aim of the loac, which is to bind all parties to the conflict with the same restraints on warfare. In order to state if a war crime or any other violation of the loac was committed, the court or any other body will not take into account the reasons of the use of force; this would contradict one of the basic principles of the loac: the complete separation between ius ad bellum and ius in bello.92 However, if the responsibility of the state for the use of force by its agents is considered, the issue of the respect of the principles on the use of force enshrined among others in the un Charter must be taken into account.93 This is particularly the case in light of the recent works within the Human Rights Council, which prove that states recognize the indissoluble link between the right to life and peace. Claims have even been made that the right to peace as a separate human right is emerging.94 The application of the hrl to the loac and vice versa would result in taming the tendency to abuse the loac and use it as a justification for killings, especially within a framework of a global conflict with any armed group. It must be also stressed that the application of the hrl in armed conflict does not have to confuse members of armed forces and privilege non-state actors. The argument that military troops are trained according to completely different rules than police (namely law enforcement) is not convincing. Troops must be prepared, depending on circumstances, to be able to use law enforcement measures as well as combat measures in armed conflict. This is particularly evident in a situation of occupation and of a niac, where armed forces are engaged in calming violent protests, arresting criminals, as well as fighting with the resistance movement when hostilities suddenly break out.95 The situation for example during an occupation can be rapidly changing. The armed forces must be prepared to apply different standards of using lethal force. Moreover, an analysis of mandates of the un peacekeeping forces proves that the un ­Security Council requires armed forces (and not only the police) to fulfil tasks

92 93 94

95

Sassòli, Bouvier (n 14) 105. Schabas (n 58) 606. See e.g. resolutions of Human Rights Commission no 5 (xxxii) 27 Feb 1976; no 66, 27 April 2000; no 71, 25 April 2002 and resolutions of Human Rights Council no 8/9, 18 June 2008, no 11/4, 17 June 2009, no 14/3, 17 June 2010. Gaggioli (n 28) 98–99; Droege, ‘Elective Affinities’ (n 6) 892.

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related to potential outbreak of hostilities as well as to different law enforcement operations. It can certainly be argued that the obligation to apply the hrl in armed conflicts would privilege non-state armed groups. This is because the hrl binds, in principle, only the states, while the loac binds all parties to the conflict.96 However, if the norms of the hrl are used to promote a more humanitarian interpretation of the loac, this must impact the customary law, which would bind all parties to the conflict. In consequence, the same standard of the loac would have to be applied by states and non-state actors. In addition, the fact that states would have to comply with a higher standard than non-state actors is not particularly shocking: after all, states are supposed to be standard bearers97 and are better prepared to fully implement the loac and the hrl.98 Does the negative approach of a few states (including the usa and Israel) prevent the establishment of customary principles concerning application of the hrl in armed conflict, and in result the creation of a common standard of conducting hostilities? This argument is based on the reasoning that a custom is a result of a common practice and opinio iuris of states, so it is impossible to have different customary rules of the hrl and of the loac concerning the use of lethal force in armed conflicts.99 These states would be particularly affected by the potential emergence of a customary principle obliging the states to apply the hrl approach. In theory, their constant opposition could prevent the establishment of such a principle or at least give them the status of persistent objectors.100 It is therefore important to show them the advantages of application of the hrl in armed conflicts. One consequence of interpretation of the loac through the lens of the hrl would be greater protection of 96

See e.g. Jann K. Kleffner, ‘The Applicability of International Humanitarian Law to Organized Armed Groups’ (2011) 93 International Review of the Red Cross 443, passim. 97 The Remarks by the President Barack Obama at the Acceptance of the Nobel Peace Prize on 10 Dec 2009 could be repeated in this context: ‘Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength.’ (Speech available at https://www.nobelprize.org/nobel_prizes/peace/laureates/2009/obama-lecture_en.html (last visited 10 Feb 2017)). 98 Marco Sassòli, Yuvel Shany, ‘Debate: Should the Obligations of States and Armed Groups under International Humanitarian Law Really be Equal?’ (2011) 93 International Review of the Red Cross 425, 427 ff. 99 Sassòli, Olson (n 71) 605. 100 Hansen (n 44) 14.

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c­ ivilians. Another would be a more humanitarian approach to those who are not protected by the loac, namely combatants and combatant-like members of armed groups. This is in the best interest of states, given that members of armed forces are nowadays as precious as civilians, or possibly even more so.101 Universal harmonization of standards applied in armed conflicts is necessary also from the point of view of international constitutional order whose goal is to better serve the interest of humanity (thus states’ interest must conform to it).102 It should be noted that peremptory norms, such as prohibition of crimes against humanity and of some war crimes, are treated as rudiments of a world constitution. Yet without a clarification who and how can be eliminated in armed conflicts, it is impossible to state what kind of actions should be treated for example as war crimes in borderline cases. The merging of the hrl and the LOAC standards in armed conflicts is also necessary to ensure coherence of international law, which in turn is a prerequisite if it should be treated as a system.103 IV

Conclusions

The relations between the loac and the hrl were hostile after the end of World War ii. The un in particular did not want to refer to and develop the loac, as the loac was supposed to regulate warfare and the un wanted to eradicate war.104 A few decades of functioning of the un proved however that the loac is still relevant and that it remains necessary as an instrument to protect humanity.105 The two branches mutually influenced each other, but the influence of the hrl on the loac was much stronger, so much so that the Additional Protocols were treated as a tribute to the hrl.106 The situation changed after 2001, when several states decided to go back to the traditional understanding of the loac norms and neglect the process of humanisation 101 Martin Shaw, The New Western Way of War. Risk-Transfer War and its Crisis in Iraq (­Cambridge: Polity Press, 2008) passim. 102 Jerzy Zajadło, ‘Konstytucjonalizacja Prawa Międzynarodowego’ (2011) 3 Państwo i Prawo 6, 12. 103 Droege, ‘The Interplay’ (n 6) 337. 104 Bennoune (n 39) 182. 105 See e.g. General Assembly Resolution 2444, Respect for Human Rights in Armed Conflicts, 19 Dec 1968, A/Res/2444. 106 Louise Doswald-Beck, Sylvain Vité, ‘International Humanitarian Law and Human Rights Law’ (1993) 293 International Review of the Red Cross 94, 113.

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of the loac.107 They prefer to rely on the loac as a more permissive regime than the hrl in relation to the elimination of persons threatening the security of the state, even in situations which could be hardly qualified as armed conflicts. The problem of alleged lack of armed conflict, the only framework in which the loac can be applied, was eliminated by the ‘global conflict’ concept. In consequence, never in history had the hrl a greater role to play in taming the loac’s conservative approach to the conduct of hostilities. The hrl can help fill the obvious gaps and clear up the vagueness of the loac. Moreover, it can once again humanize the interpretation of the entirety of the law applied in armed conflicts. The harmonisation of standards applied in every situation when military force is used is desirable from the point of view of constitutionalisation of international law and consolidation of international law as a coherent system. Perhaps even more importantly, it is needed in order to enhance the protection of those who are not engaged in hostilities, as well as those who do take part in those hostilities, but often do so against their will. This is particularly pressing in our times, when technological developments prompted by globalization make human life so fragile. Bibliography Abresch, William, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 EJIL 741. Bennoune, Karima, ‘Toward a Human Rights Approach to Armed Conflict: Iraq 2003’ (2004–2005) 11 U.C. Davis Journal of International Law and Policy 171. Bruscoli, Francesco, ‘The Rights of Individuals in Times of Armed Conflict’ (2002) 6 The International Journal of Human Rights 45. Cameron, Lindsey et al., Commentary of 2016 to Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 (online version). Casey-Maslen, Stuart, ‘Pandora’s Box? Drone Strikes under Ius ad Bellum, Ius in Bello and International Human Rights Law’ (2012) 94 International Review of the Red Cross 597. Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004).

107 On humanisation of the loac see Theodor Meron, ‘The Humanization of the Law of War (Marek Nowicki Memorial Lecture)’ in Theodor Meron, The Making of International Criminal Justice: The View from the Bench: Selected Speeches (Oxford: Oxford University Press, 2011) 42.

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Dinstein, Yoram, War, Aggression and Self-Defence, 5th ed (Cambridge: Cambridge University Press, 2011). Doswald, Beck Louise, ‘International Humanitarian Law: A Means of Protecting Human Rights in Time of Armed Conflict’ (1989) 1 African Journal of International and Comparative Law 615. Doswald-Beck, Louise, Vité, Sylvain, ‘International Humanitarian Law and Human Rights Law’ (1993) 293 International Review of the Red Cross 94. Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310. Droege, Cordula, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 International Review of the Red Cross 501. Ekins, Richard, Morgan, Jonathan, and Tugendhat, Tom, Clearing the Fog of Law. Saving our armed forces from defeat by judicial diktat (London: Policy Exchange, 2015). Feinstein, Barry A., ‘The Applicability of the Regime of Human Rights in Times of Armed Conflict and Particularly to Occupied Territories: The Case of Israel’s Security Barrier’ (2005) 4 Northwestern Journal of International Human Rights 238. Gaggioli, Gloria, ‘Lethal Force and Drones: The Human Rights Question’, in Stephen Barela (ed) Legitimacy and Drones. Investigating the Legality, Morality and Efficacy of UCAVs (Farnham: Ashgate, 2015) 91. ‘German Prosecutors Drop Case against Kunduz Airstrike Colonel’ Deutsche Welle, 1 April 2012. Grzebyk, Patrycja, ‘Classification of the Conflict between Ukraine and Russia in International Law (Ius ad Bellum and Ius in Bello)’ (2015) 34 Polish Yearbook of International Law 39. Hansen, Michelle A., ‘Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law into Armed Conflict’ (2007) 194 Military Law Review 1. Henckaerts, Jean-Marie, Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules (Cambridge: Cambridge University Press, 2005). Kleffner, Jann K., ‘The Applicability of International Humanitarian Law to Organized Armed Groups’ (2011) 93 International Review of the Red Cross 443. Lubell, Noam, ‘The War against Al-Qaeda’, in Elizabeth Wilmshurst (ed), International Law and the Classification of Conflicts (Oxford: Oxford University Press, 2012) 421. Lubell, Noam, Derejko, Nathan, ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’ (2013) 11 Journal of International Criminal Justice 65. McDonell, Thomas Michael, ‘Sow What You Reap? Using Predator and Reaper Drones to Carry Out Assassinations or Targeted Killings of Suspected Islamic Terrorists’ (2012) 44 George Washington International Law Review 243. Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: International Committee of the Red Cross, 2009).

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Meron, Theodor, ‘The Humanization of the Law of War (Marek Nowicki Memorial Lecture)’ in Theodor Meron, The Making of International Criminal Justice: The View from the Bench: Selected Speeches (Oxford: Oxford University Press, 2011) Chapter 4. Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford: Oxford University Press, 2011). Pictet, Jean (ed), Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field(Geneva: International Committee of the Red Cross, 1952). Pictet, Jean, Humanitarian Law and the Protection of War Victims (Geneva: Henry ­Dunant Institute, 1975). Pictet, Jean, Development and Principles of International Humanitarian Law (Dordrecht: Nijhoff, 1985). Roberts, Adam, ‘Counter-terrorism, armed force and the laws of war’ (2002) 44 Survival 7. Sassòli, Marco and Bouvier, Antoine A., How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Volume I, 2nd ed (Geneva: International Committee of the Red Cross, 2006). Sassòli, Marco, Olson, Laura M., ‘The Relationship between International Humanitarian and Human Rights Law: Where It Matters: Admissible Killing and Internment of Fighters in Non-international Armed Conflicts’ (2008) 90 International Review of the Red Cross 599. Sassòli, Marco, Shany, Yuvel, ‘Debate: Should the Obligations of States and Armed Groups under International Humanitarian Law Really be Equal?’ (2011) 93 International Review of the Red Cross 425. Schabas, William A., ‘Lex specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Ius ad Bellum’ (2007) 40 Israel Law Review 592. Shaw, Martin, The New Western Way of War. Risk-Transfer War and its Crisis in Iraq (Cambridge: Polity Press, 2008). Schöberl, Katja, ‘Boundaries of the Battlefield: The Geographical Scope of the Laws of War’, in Stephen Barela (ed) Legitimacy and Drones. Investigating the Legality, Morality and Efficacy of UCAVs (Farnham: Ashgate, 2015) 71. Taylor, Richard S, ‘The Capture versus Kill Debate: Is the Principle of Humanity Now Part of the Targeting Analysis When Attacking Civilians Who Are Directly Participating in Hostilities?’ (2010) 6 Army Law 203. Zajadło Jerzy, Konstytucjonalizacja prawa międzynarodowego (2011) 3 Państwo i Prawo 6.

chapter 5

Denizenship as a Basis for Compulsory Diplomatic Protection: Does Residence Security as a Human Right Restrict State Sovereignty? Tomoko Yamashita Abstract Diplomatic protection, with its origin in the international arbitrations of the 18th and 19th centuries, is one of the oldest principles in customary international law which protects ‘nationals’ abroad by using state-to-state procedures as a corollary of sovereign power. From an orthodox positivist view, states have the right to utilise this institution as a corollary of personal jurisdiction. It may, however, conflict with the global scheme of human rights protection. Although the possible restrictions of a state’s discretion in its exercise of diplomatic protection have been discussed for a century, this question has not attracted the interest of practitioners until recently, when the detainees at Guantanamo Bay camp asked their governments to exercise diplomatic protection on their behalf. Against this backdrop, this paper examines how states exercise personal jurisdictional power with a special focus on the classifications of societal membership – national, citizen, and denizen – as a legal basis for invoking diplomatic protection in the international sphere. The first section focuses on the fragility of the concept of ‘nationality’ in international law. The second section illustrates a predominant trend for residence-oriented protection of individuals in international human rights law, and this link to residence is sometimes superior to their formal nationality or citizenship. Based on these arguments, the third section scrutinises possible constrains on the discretion of a state in its exercise of diplomatic protection.

Keywords Diplomatic protection – the 2006 ilc’s Draft Articles on Diplomatic Protection – nationality – effective nationality – citizenship – denizen – refugee protection – family reunion – Article 8 of the European Convention on Human Rights – jus cogens * Lecturer in International Law, Aichi Prefectural University, Japan, [email protected]. ac.jp.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_007

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Introduction: Protection Gaps to be Closed

Diplomatic protection, with its origin in the international arbitrations of the 18th and 19th centuries, is one of the oldest principles in customary international law which protects ‘nationals’ abroad by using state-to-state procedures as a corollary of sovereign power.1 From an orthodox positivist view, states have the right to utilise this institution as a corollary of personal jurisdiction. It may, however, conflict with the global scheme of human rights protection. This is firstly because diplomatic protection cannot, in principle, be exercised for persons lacking nationality even if they are granted long-term or permanent working and residence permits based on their family ties, even if they reside with their families, have the local voting rights, and the right to receive social security from the state where they live. The second and more classical criticism against diplomatic protection centres on its discretional exercise based on the will of the state.2 Although the possible restrictions of a state’s discretion in its exercise of diplomatic protection have been discussed for a century, this question has not attracted the interest of practitioners until recently. The situation drastically changed when a series of cases were brought from the Guantanamo Bay detention camp. The detainees, through their agents, asked their governments to exercise diplomatic protection on their behalf in face of inhuman and degrading treatment in the camp. Indeed, the situation at Guantanamo Bay was roundly criticised by civil society, the mass media, as well as other governments and international organisations including the eu, oas, and un. From a procedural perspective, these individuals were arbitrarily detained in a ‘legal black-hole’.3 There was no effective possibility for them to submit habeas corpus in criminal proceedings, which should have been ensured for every detainee under the us Constitution.4 At that time, the us government alleged that human rights treaties to which us is a party were not applicable even though the us exercises exclusive 1 Commentary to Art 1 of the ilc’s Draft Articles on Diplomatic Protection (second reading 2006) with commentaries [hereinafter, ‘2006 ilc’s Draft on Diplomatic Protection’], in Yearbook of the International Law Commission 2006, Vol II(2), paras 1–3. 2 Statement of H. Rolin, in (1932) 37 Annaire de l’Institut de Droit International, 500; Charles de Vissher, Theory and Reality in Public International Law (pe Corbett tr, first published 1957, Oxford: Oxford University Press, 1968) 273; Geoges Scelle, ‘Règles générales du droit de la paix’ (1933-IV) 46 Recueil des cours d’Académie de droit international 657, 660–666. 3 R (Abbasi) v Secretary of fco [2002] ewca Civ 1598, Judgment of 6 Nov 2002, para 64. 4 This situation was subsequently found to be an unconstitutional suspension of their rights by the us Federal Supreme Court. Boumediene et al v Bush, 553 us, 12 June 2008, 37–38; 54–64.

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jurisdiction over the camp,5 which does not officially form a part of the us territory because it is located in Cuba.6 This kind of legal black hole is not exclusive to Guantanamo, since a dangerous gap also exists in international law related to diplomatic protection, especially in relation to the protection of natural persons, and this gap needs to be bridged through the development of case law.7 A number of claims have been brought before domestic courts seeking diplomatic protection over the past decade and this number is rising, suggesting an emerging international obligation to provide diplomatic protection based on citizenship. In this sense, the legal foundation of diplomatic protection needs to be reconceptualised to reflect the progressive reality of the international community where a rising number of states are exercising personal jurisdictional power outside their territory in order to fulfil their obligation under human rights treaties. Against this backdrop, the present paper examines how states exercise personal jurisdictional power with a special focus on the classifications of societal membership – national, citizen, and denizen8 – as a legal basis for invoking diplomatic protection in the international sphere. Traditional international law does not make clear distinctions between these notions because such distinctions fall under the competence of the national legal system of each state. The conceptual differences between these notions do not matter for those who are both nationals and citizens of the same state. However, the situation is complex for persons whose nationality and citizenship are not identical such as stateless persons as well as long-term residents or refugees who maintain their original nationalities but enjoy denizenship in their current country of residence. Moreover, as these individuals spend their family, business, fiscal and social lives in their country of habitual residence, they sometimes have stronger connections with it than with the state of which they are nationals or citizens. Therefore, they may not expect diplomatic protection from their original state despite it being the final resort for protecting their human rights. 5 Article iii, Agreement between the United States and Cuba For the Lease of Lands for Coaling and Naval stations, Signed by the President of Cuba, 16 Feb 1903; Signed by the President of the United States, 23 Feb 1903. 6 u.s. Additional Response to the Request for Precautionary Measures, Definition of Enemy Combatants at Guantanamo Bay, Cuba, Inter-American Commission on Human Rights, 15 July 2012. 7 Sandrine Turgis, Les interactions entre les normes internationales relatives aux droits de la personne (Paris: Pedone, 2012) 305–307. 8 ‘Denizen’ is the expression designating the group of persons who are intermediate between ‘citizen’ and regular ‘foreigners’. This notion is discussed in more detail below in section ‘Residence Security as being Superior to ‘Nationality’ from a Human Rights Standpoint’.

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A very restrictive traditional view of diplomatic protection that excludes many individuals from the possibility of claiming diplomatic protection does not reflect the realities of the contemporary intensified movement of persons induced by globalisation. Diplomatic protection needs to be reconceptualised to respond to realities of lives of an increasing number of individuals entertaining close ties with a series of places that are not necessarily located in their country of citizenship or nationality. This chapter proposes one such ­reconceptualization that utilises trends in human rights law to argue for an obligation – an not only a right – of states to exercise diplomatic protection in certain situation not limited to their nationals. The first section of the present paper focuses on the fragility of the concept of ‘nationality’ in international law. There are indeed several international and national cases emphasising a real connection with a particular society rather than paper-based attachment to the state of nationality. This doctrine of the so-called ‘effective nationality’ was traditionally developed for persons with multiple nationalities. However, it is also applicable to individuals with a single nationality in the context of diplomatic protection. In this sense, international law seems to perceive nationality in a very fragile way to the extent that it cannot be legitimised under the domestic law of the state of nationality of the concerned person. The second section illustrates a predominant trend for residence-oriented protection of individuals in international human rights law, and this link to residence is sometimes superior to their formal nationality or citizenship. If nationality for the purpose of diplomatic protection is described as a ‘social fact of attachment,’ a state should be entitled and obliged to protect its longterm residents, regardless of whether they have the nationality of this state or not, through international proceedings when their rights are infringed by the third state. At the same time, residents may be entitled to ask their state of residence to afford them such protection based on human right instruments. For instance, a human right to residence security in a country where one does not possess nationality is emerging in some international instruments including the European Convention on Human Rights9 (echr).10 With a special focus on residence security and family reunion, this section discusses the possible

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European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov 1950, 213 unts 222. Daniel Thym, ‘Residence as De Facto Citizenship? Protection of Long-term Residence under Article 8 echr’ in Ruth Rubio-Marín (ed) Human Rights and Immigration (Oxford: Oxford University Press, 2014) 108.

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basis for demanding a state to exercise diplomatic protection in favour of its long-term residents who are nationals of third states. Based on these arguments, the third section scrutinises possible constrains on the discretion of a state in its exercise of diplomatic protection. It scrutinises domestic judicial challenges to the established practices of diplomatic protection. It is widely discussed in the literature whether a general provision on citizenship or human rights in constitutions can create such a governmental obligation without explicit provisions. Indeed, the constitutional provisions in a number of states recognise the right of an individual to receive diplomatic protection for injuries suffered abroad. Moreover, and even if the constitution lacks such a provision, there are signs in recent state practice, constitutions, and legal opinions that provide support for the view that states have a legal obligation to protect their nationals abroad.11 In particular, this section sheds light on the Kaunda decision of August 2004 by the South African Constitutional Court,12 which maintained that an obligation for the government to exercise diplomatic protection globally follows from a general constitutional provision. This section also examines the argument raised by the Special Rapporteur John Dugard of the International Law Commission (ilc), which posits that States are obligated to exercise diplomatic protection on behalf of injured persons ‘if the injury results from a grave breach of a jus cogens norm’.13 This draft provision was finally deleted, but it should be studied how and how far this argument based on jus cogens can be reconciled with the argument in the Kaunda decision. I

‘Nationality’ as a Fragile Concept in International Law

Although ‘nationality’ has a core value in diplomatic protection, it is in reality a fragile concept in this particular context. Nationality is ‘a fictitious identification between State and national’.14 Based on the socio-political philosophy correlating allegiance and protection, nationality has emerged as a historical institution that unites private persons with a state that disposes their rights 11 12 13 14

John R. Dugard, ‘First Report on Diplomatic Protection’ in Yearbook of the International Law Commission 2000, Vol II(1) paras 80–87. Kaunda v President of the Republic of South Africa, 4 Aug 2004, (2005) 4 South African Law Reports 235 (cc). Dugard (n 11) Art 4 (1), para 74. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] icj Rep 174, Opinion dissidente de Badawi Pacha, 212.

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and obligations.15 Nationality itself, however, does not go as far as to create any rights and obligations for individuals in relation to the state in the sphere of international law.16 By analysing the practice of states, arbitral and judicial decisions, and the opinions of writers, the icj in the Nottebohm case of 1955 described ‘nationality’ for the purpose of diplomatic protection as follows: nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. … Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.17 The important role of nationality in this context is to link the legal interest of a state and its national’s injury suffered in another state.18 These vague and broad conceptualisations of ‘nationality’ in international law are caused by the fact that states have absolute freedom to regulate nationality – from its acquisition, loss, to its consequences – as a corollary of sovereignty, which can be limited by international human rights treaties.19 The concept of nationality is hard and brittle, just like glass. It is for the state to determine, in accordance with its municipal law, who is to qualify for its nationality; at the same time, there are limits imposed by international law on the granting of nationality.20 This principle is based on both judicial decisions and treaties.21 At the same time, however, a state cannot submit an 15

16 17 18 19 20

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Jean Salmon, ‘Nationalité’ in Dictionnaire de droit international (Bruxelles: Bruylant, 2001) 727; Oliver Dörr, ‘Nationality’ in Max Planck Encyclopedia of Public International Law (online ed.; last updated on Nov 2006), paras 4–5; Malcolm N. Shaw, International Law, 6th ed (Cambridge: Cambridge University Press, 2008) 258. Guy I.F. Leigh, ‘Nationality and Diplomatic Protection’ (1971) 20 International and Comparative Law Quarterly 453–475, 454. Nottebohm (Lichtenstein v Guatemala; Second Phase), (Judgment) [1955] icj Rep 4, 23. Ian Brownlie, Principles of Public International Law (7th ed, Oxford: Oxford University Press, 2008) 477–478. Dörr,(n 15), paras 5–7. For instance, automatic acquisitions of nationality resulting from marriage may be inconsistent with Art 9(1) of the Convention on the Elimination of All forms of Discrimination against Women, 18 Dec 1979, 1249 unts 13: Commentary to Art 4 of 2006 ilc’s Draft on Diplomatic Protection (n 1), paras 3, 6. Nationality Decrees Issued in Tunis and Morocco (French Zone) (Advisory Opinion) [1923] p.c.i.j. Reports, Series B, No. 4, 24; 1930 Hague Convention on Certain Questions Relating

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­international claim concerning injuries to private persons without establishing their nationality.22 That said, just proving their nationality is usually not enough and some other particular qualifications are required for the purpose of invoking diplomatic protection. Firstly, the nationality of victims needs to be ‘continuous’ from the date of injury (dies a quo) to the date of the official presentation of the claim23 or that of the final resolution of the dispute (dies ad quem).24 Conceptualised by Edwin Borchard in 1915 in his book,25 the terminology of ‘continuous nationality’ is widely employed in practice and scholarship to the extent that it is considered to be a well-established rule.26 According to ­Article 5 of the 2006 ilc Articles on Diplomatic Protection, such continuity is presumed if nationality existed on both dates.27 Secondly, the nationality is required to be ‘effective’ as is suggested by the International Law Association to the Conflict of Nationality Laws, 12 Apr 1930, 179 lnts 89, No 4137; European Convention on Nationality, 6 Nov 1997, 2135 unts 213, Art 3. 22 Gerald G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: General Principles and Substantive Law’ (1950) 27 British Yearbook of International Law 24–25; Pheobe Okowa, ‘Admissibility and the Law on International Responsibility’ in Malcolm D. Evans (ed) International Law (2nd ed, Oxford: Oxford University Press, 2006) 479. 23 Art viii of Project no 16 on Diplomatic Protection prepared by the American Institute of International Law (1925), reproduced in Yearbook of the International Law Commission 1956, Vol ii, un Doc A/CN.4/SER.A/1956/Add.1, 227; Art 15 of Draft Convention on the Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners prepared by Harvard Law School [hereinafter, ‘1929 Harvard Draft’], in ibid, 229. 24 Basis of Discussion no 28, National Character of Claims, drawn up in 1929 by the Preparatory Committee of the Conference of the Codification of International Law (The Hague, 1930), reproduced in Yearbook of the International Law Commission 1956, Vol ii, 225; Francisco V. García Amador, ‘Third Report on International Responsibility’ un Doc A/CN.4/111, in Yearbook of the International Law Commission 1958, Vol ii, 61. 25 Edwin M. Borchard, Diplomatic Protection of Citizens Abroad (New York: Banks Law, 1915) 660–666; this fact is pointed out by authors such as Eric Wyler, La règle dite de la continuité de la nationalité dans le contentieux international (Paris: puf, 1990) 228 and Chittharanjan F. Amerashinghe, Diplomatic Protection (Oxford: Oxford University Press, 2008), 100. 26 Kren claim, u.s. Int’l Claims Commission 1951–1954 in (1975) 20 ilr, 234; Leigh, (n 16) 475; Ian M. Sinclair, ‘Nationality of Claims: British Practice’ (1950) 27 British Yearbook of International Law 125; Lassa Oppenheim, International Law: A Treatise, Vol i, 8th ed (London, New York: Longmans Green & Co., 1955) 347–348; J. Mervyn Jones, ‘Claims on Behalf of Nationals Who Are Shareholders in Foreign Companies’ (1949) 25 British Yearbook of International Law 225, 244. 27 Art 5(1) of 2006 ilc’s Draft on Diplomatic Protection (n 1).

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(ila).28 As the ‘effectiveness’ of nationality precisely explains the fragility of nationality, this argument is examined in this section below. II

Effective Nationality of Persons with Multiple Nationalities

Diplomatic protection is exercised because the state of nationality of the person injured so decides. Therefore difficulties may arise if that person has multiple nationalities.29 As such, states have attempted to reduce the incidence of dual nationality by concluding bilateral agreements and other arrangements allowing for the transfer of nationality in most cases.30 However, recent state practice points to the increased acceptance of multiple nationality and, at the same time, global mobility has resulted in a large increase in the number of births of dual nationals.31 Even if all such nationalities are obtained in a manner consistent with international law, such a person may be required to decide which nationality is superior in view of the stability, equity, and fairness of the legal system. In this respect, international scholarship has given two competing answers. The first is the doctrine of ‘non-responsibility’ that denies the exercise of diplomatic protection between states of nationalities of the person concerned as a logical consequence of the established principle of sovereign equality. This idea is clearly stated in Article 4 of the Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930: ‘[a] State may not afford diplomatic protection to one of its national against a State whose nationality such person also possesses’.32 The same formula can be found in Article 16(a) of the Harvard Draft Convention on the Responsibility of States of 1929, stipulating that ‘[a] state is not responsible if the person injured or the person on behalf of whom the claim is made was or is its own national’33 and Article 4(a) of the Warsaw Resolution of the Institute of International Law of 1965 affirming that 28 29 30 31 32 33

Resolution no 5/2006, Diplomatic Protection of Persons and Property, 72nd Conference of the ila, Toronto, Canada, 4–8 June 2006, Nationality of Claims, paras 6 and 8. Francisco Orrego Vicuña, ‘Changing Approaches to the Nationality of Claims’ (2000) 15 icsid Review 340, 346–349. Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, 6 May 1963, ets No.043. Peter J. Spiro, ‘Multiple Nationality’ in Max Planck Encyclopaedia of Public International Law (online ed; last updated on Apr 2008) paras 6–13. 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws (n 21) Art 4. Art 16(a) of the 1929 Harvard Draft (n 23) 230.

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‘[a]n international claim presented by a State for injury suffered by an individual who possesses at the same time the nationalities of both claimant and respondent States may be rejected by the latter and is inadmissible before the court (jurisdiction) seized of the claim’.34 This doctrine addresses the problem based largely on the traditional theory of international responsibility which is a state-to-state procedure. However, it lacks a viewpoint of any concerned private persons who make the situation complex. The second answer provided by the doctrine to the issue of multiple nationalities arises from the principle of effective and dominant nationality, which allows a state of dominant or effective nationality to bring a claim against another state. For the purpose of the claim, the person concerned with multiple nationalities is treated as if he or she has only one nationality. This doctrine decides a state of nationality not only based on law but also taking into account such factual factors as which state may have a stronger, superior, and effective connection or a higher level of control over the person concerned.35 Article 5 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws provides that [w]ithin a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.36 The principle that allows a state of dominant or effective nationality to bring a claim against another state of nationality has attracted interest of academics for decades. In 1961, García Amador formulated this principle in a way that ‘[a] State may not bring a claim on behalf of an individual if the legal bond of 34

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Art 4(a) of the Resolution on the National Character of an International Claim Presented by a State for Injury Suffered by an Individual, Warsaw Session, 1965 [hereinafter, ‘Warsaw Resolution’], in Resolutions de l’Institut de Droit International, 1957–91 (1992) 55–56 or in Annuaire de l’Institut de Droit International, Session de Varsovie (1965 ii). Blumenthal, French-German Mixed Tribunal,(1925–1926) Annual Digest of Public International Law Cases, Case no 148, 216.; Barthez de Montfort v Treuhänder hauptverwaltung, etc, French-German Mixed Arbitral Tribunal, 10 July 1926, ibid, Case no 206, 279. Art 5 of 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws (n 21).

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nationality is not based on a genuine connexion between the two’ and ‘[i]n cases of dual or multiple nationality, the right to bring a claim shall be exercisable only by the State with which the alien has the stronger and more genuine legal and other links’.37 Acknowledging effectiveness and dominancy as important elements of nationality, Dugard proposed Articles 6 and 7 for the ilc’s Draft Articles on Diplomatic Protection.38 Although these provisions may conflict with the doctrine of ‘non-responsibility’ in Article 4 of the Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930,39 his idea of codifying this principle won general support of the ilc and it was codified into Article 6 of the draft articles provisionally adopted in 2002.40 The ilc in its commentary to the draft articles states that the principle reflects the present position in customary international law and that it is ‘consistent with developments in international human rights law, which accords legal protection to individuals, even against a State of which they are nationals’.41 This mention was deleted from the first reading of the draft articles adopted in 2004 because doubts arose in the Sixth Committee about the consistency of two fundamentally different mechanisms, namely, diplomatic protection and international human rights law.42 However, the principle itself is ­overwhelmingly supported 37

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40

41 42

Francisco V. García Amador, Art 23 (3) and (5) of ‘Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens: Revised Draft’ Yearbook of the International Law Commission 1961, Vol ii, un Doc A/CN.4/SER.A/1961/Add. 1, 49. Dugard (n 11) Art. 6&7, paras 121–174. Report of the ilc on the work of its 52nd Session (1 May–9 June and 10 July–18 Aug 2000) [hereinafter, ‘ilc Report 2000’], in Yearbook of the International Law Commission 2000, Vol II(2) paras 473–480, 482–485; Topical summary of the discussion held by the Sixth Committee of the General Assembly during its 55th session prepared by the Secretariat (2000) [hereinafter ‘Sixth Committee 2000’], un Doc A/CN.4/513, paras 217–227; Topical summary of the discussion held in the Sixth Committee of the General Assembly prepared by the Secretariat, 56th session (2001) [hereinafter ‘Sixth Committee 2001’], un Doc A/ CN.4/521, para 71. Art 6, Draft Articles on Diplomatic Protection Provisionally Adopted by the Commission [hereinafter, ‘2002 Provisional Draft on Diplomatic Protection] in Yearbook of the International Law Commission 2002, Vol II(2) 67: ‘A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the time of the injury and at the date of the official presentation of the claim’. Commentary to Art 6, ibid., 74, para 4. No mention was made afterwards to the consistency between diplomatic protection and human rights in the text of the draft articles on diplomatic protection. Summary Records of the Meetings of the 58th session 2006, 2881st meeting on 30 May 2006, un Doc A/CN.4/ SR.2881, 12; Topical summary of the discussion held in the Sixth Committee of the General

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by governments43 and was maintained and codified in Article 7 in the 2006 ilc’s Draft on Diplomatic Protection. As explained in the commentary to Article 7, the Mergé case in 1955 at the Italian–United States Conciliation Commission is the starting point for applying the principle of effective nationality in practice.44 In this case, a claimant of dual nationality – us nationality by birth and Italian nationality by m ­ arriage – made a claim against Italy, which was responsible for damage to the claimant’s assets. Here, the Conciliation Commission stated that: The principle, based on the sovereign equality of States, which excludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming State. But it must not yield when such predominance is not proved because the first of these two principles is generally recognised and may constitute a criterion of practical application for the elimination of any possible uncertainty.45 The principle of effective nationality and concept of dominant nationality were simply two sides of the same coin. In the discussion on diplomatic protection at the ila, among the lump-sum agreements concluded between 1975 and 1995, David Bederman pointed out only three references to the problem of multiple nationalities. Crucially, however, all included the meaning of dominant and effective nationality.46 Among these, the Iran–United States Claims Tribunal clarified the elements and conditions of effective nationality for dual nationals by considering a number of cases involving this problem,47 even Assembly during its 59th session prepared by the Secretariat (2004), un Doc A/CN.4/549/ Add.1, para 9. 43 Diplomatic Protection: Comments and Observations received from Governments [hereinafter, ‘Comments from Governments’], 27 Jan 2006, un Doc A/CN.4/561, 22–23. 44 2006 ilc’s Draft on Diplomatic Protection (n 1) 45, para 3. 45 Florence Mergé (1955) 14 un Reports of International Arbitral Awards 236, 247. 46 David J. Bederman, ‘Lump Sum Agreements and Diplomatic Protection’ Interim Report Submitted to the Committee on Diplomatic Protection of Persons and Property, ila New Delhi Conference Report (2002), available at http://www.ila-hq.org/index.php/committees (last visited 10 Feb 2017) 12 and 20. 47 The number of claims submitted by persons with dual nationality is approximately 130 out of 4,000 claims in total. Mohsen Aghahosseini, ‘The Claims of Dual Nationals before the Iran–United States Claims Tribunal: Some Reflections’ (1997) 10 Leiden Journal of International Law 21, 22. Indeed, the proceedings before the Tribunal are not the same as the proceedings in case of diplomatic protection, but some identical elements can be

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though it could only rule on claims that arose until January 1981 (the signing of the Claims Settlement Declaration).48 In the A/18 Decision, the Tribunal lists a number of relevant factors for determining dominant and effective nationality. One factor is the claimant’s life until the critical date (his or her whole life from birth to the date of the claim). Another is evidence of trustworthiness and the sincerity of the allegiance to the state as shown by ‘habitual residence’, ‘centre of interests’, ‘family relationships’, ‘participation in public life’ and ‘cultural affiliation and economic interests’.49 The idea of effective and predominant nationality originated from the concern for military obligations. For example, Article 1 of the Protocol Relating to Military Obligations in Certain Cases of Dual Nationality clarifies that ‘[a] person possessing two or more nationalities who habitually resides in one of the countries whose nationality he possesses, and who is in fact most closely connected with that country, shall be exempt from all military obligations in the other country or countries’.50 Since the military experience of the person concerned is an important element,51 mental factors such as the loyalty and willingness of that person help decide which nationality is predominant. In the Miliani case, the claimant succeeded in his Italian father’s claim against Venezuela but the question of ‘non-responsibility’ arose because of his dual nationality of the states concerned. However the Commission accepted his claim that his Italian nationality was superior to his Venezuelan one.52 Indeed, ­deduced. Compare Esphahanian v Bank Tejarat (1983) 2 Iran-United States Claims Tribunal 165. 48 Art ii (1) of the Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Claims Settlement Declaration), 19 Jan 1981, (1981) 20 ilm 223, 223–224. 49 Malek v Iran, Award No.ITL 68-193-3 (23 Jun 1988) (1989) 19 Iran-United States Claims Tribunal 48, 51; David J. Bederman, ‘Nationality of Individual Claimants before the IranUnited States Claims Tribunal’ (1993) 42 International and Comparative Law Quarterly 119, 129–134. 50 Protocol Relating to Military Obligations in Certain Cases of Double Nationality, 12 April 1935, 178 lnts 227, no 4117. 51 The state of nationality to which the person concerned belongs is regarded as the state of effective nationality. Prince d’Aremberg v Procuatour-General of Brussels, Q.Q. Boulanger and Associate, Cour d’appel de Bruxelles (27 May 1925); Cour de cassation, Belgium (25 May 1926) (1925–1926) Annual Digest of Public International Law Cases 281 (Pasicrise Belge, 1926, i 317 and ii 31; La Belgique Judiciaire 1926, 321ff); Prince Elie de Bourbon-­Parme, Cour de cassation, Belgium (14 May 1923) Recueil Dalloz de doctrine de jurisprudence et de législation (Paris: Dalloz, 1955), vol. i, 110. 52 Miliani (Italy) v Venezuela, Italian-Venezuelan Claim Commission 1903, 585–586.

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this doctrine was largely employed in international arbitrations by mixed tribunals in the early 20th century, where the state of residence was considered to have the strongest connection with the person concerned, thereby making the nationality of such a country effective for international claims.53 III

Effective Nationality of Persons with a Single Nationality

The Nottebohm case of 1955 was the first where the icj explicitly applied the disputable idea of effective nationality to a person with a single nationality.54 In this case, Liechtenstein accused Guatemala of the unjustified detention, internment, and expulsion of Nottebohm and the sequestration and confiscation of his property.55 He was German by birth and still possessed German nationality in 1905 when he went to live and work in Guatemala. During wwii, he applied for naturalisation in Lichtenstein to avoid enemy treatment against the Germans in Guatemala. Until that time, Nottebohm had paid only a few visits to Liechtenstein therefore he could not fulfil the condition of three years’ residence prescribed by law to obtain nationality. By submitting a statement concerning his assets and making the payment of dues in connection with his 53

54 55

Dugard (n 11) paras 128–147; Zvonko R. Rode, ‘Dual Nationals and the Doctrine of Dominant Nationality’ (1959) 53 American Journal of International Law 141. See Mergé claim, Italy-American Commission (1955) 22 International Law Reports 455; Stevenson (merits), Great Britain-Venezuela Mixed Claims Commission, (1903) 9 un Reports of International Arbitral Awards 438; Mathison (merits), British-Venezuelan Mixed Claim Commission, ibid., 485–494; Canevaro case (Italy v Peru), Permanent Court of Arbitration, 2 May 1912, in James Brown Scott (ed) The Hague court Reports, vol. 1 (Oxford: Oxford University Press, 1916) 284; Alexander Tellech (usa) v Austria Hungary, 25 May 1928, (1928) 6 un Reports of International Arbitral Awards 248; Barthez de Montfort v Treuhander (1925–1926) Annual Digest of Public International Law Cases Case no 206, 279; Georges S. Hein. Hildersheimer Bank, Anglo-German Mixed Arbitral Tribunal (1919–1922) Annual Digest of Public International Law Cases Case no 148, 216; Amelia de Brissot, Ralph Rawdon, Joseph Stackpole and Narcisa de Hammer v Venezuela, usa-Venezuela Mix Claim Commission, 5 Dec 1885, (2009) 29 un Reports of International Arbitral Awards 240; Carlos L. Oldenbourg (gb) v United Mexican States, British-Mexican Claims Commission, Decision no 11, 19 Dec 1929, (1952) 5 un Reports of International Arbitral Awards 74; Frederick Adams and Charles Thomas Blackmore (Great Britain) v United Mexican States, 3 July 1939, (1952) 5 un Reports of International Arbitral Awards 216–217; Salem (usa v Egypt), 8 June 1932, (1949) 2 un Reports of International Arbitral Awards 1187. Cuthbert Joseph, Nationality and Diplomatic Protection – The Commonwealth of Nations (Leyden: A.W. Sijthoff, 1969) 11. Nottebohm (Preliminary Objection) (Judgment) [1953] icj Rep 111, 112–113.

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naturalisation proceedings, he sought dispensation from the residence condition without indicating the special circumstances warranting such a waiver. After losing his German nationality and obtaining Liechtenstein’s passport and a Guatemalan visa in his Lichtenstein passport, he returned to Guatemala in 1940. Although Nottebohm was a Liechtenstein national both at the time of injury and on the date of the submission of the claim, the icj doubted the effectiveness of his nationality because of his distant relationship with that country: he was naturalised according to the law of Liechtenstein but by an exceptional procedure. Explaining that his ‘actual connections with Liechtenstein were extremely tenuous’, the icj found ‘on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalisation in no way weakened’.56 It decided that Guatemala was under no obligation to recognise his naturalisation to Liechtenstein and Liechtenstein consequently was not entitled to extend its protection to Nottebohm, thereby making his claim inadmissible.57 In other words, the icj placed more importance on his real life connections with Guatemala than his paper-based nationality of Liechtenstein. The conclusion of the Nottebohm case was even criticised by some judges of this case. Judge Read points out that the principle of effective nationality is not applicable in this case because its application has been limited to cases of dual nationality.58 In a similar vein, Judge Guggenheim regards the icj’s reasoning for ‘a sufficient bond of attachment’ as going ‘beyond the requirement of general interactional law’ concerning the nationality for a claim of diplomatic protection in case of the person holding a legitimately obtained nationality.59 Judge Klaestad criticises, although implicitly, the Court for not scrutinising whether Nottebohm committed fraud when he applied for and obtained Liechtenstein nationality.60 Reactions from academics were also negative for the decision to apply the principle of effective nationality to persons with a single nationality.61 Indeed, outside of the Nottebohm case, the ilc 56 57 58 59 60 61

Nottebohm (Second Phase) (n 17) 25–26. ibid, 26. Dissenting Opinion of Judge Read, ibid, pp. 41–42. Dissenting Opinion of Judge Guggenheim, Nottebohm, ibid, 60–61, paras. 12–13. Dissenting Opinion of Judge Kaestad, Ibid, 33. Wilhelm K. Geck, ‘Diplomatic Protection’ in Rudolf Bernhardt (ed) Encyclopedia of Public International Law (Amsterdam: North-Holland, 1992), Vol 1, 1050; Josef L. Kunz, ‘The Nottebohm Judgment’ (1960) 54 American Journal of International Law 707; Clive Parry,

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confirmed that the principle should be applied only to persons with multiple nationalities.62 As shown by the Nottebohm case, the doctrine of effective nationality is rarely applied to a person with a single nationality and there exists also certain amount of criticism against the icj’s conclusion in this case. Nevertheless, the doctrine of effective nationality offers interesting suggestions for my argument for a foreigner with a single nationality qualified as a refugee or a long-term resident of the other country, or for a person without any nationality in order to close the protection gap existing under customary international law. The following section examines how this argument can be conceptually linked with the right to family life or residence security from a human rights standpoint. IV

Residence Security as being Superior to ‘Nationality’ from a Human Rights Standpoint

As observed above, international lawyers prefers to decorate ‘nationality’ with some explicative adjectives for the purpose of diplomatic protection. On the other hand, domestic lawyers seem to use ‘citizenship’ instead of nationality in certain contexts. On this point, Olivier Dörr notes that in domestic law, as a matter of terminology, ‘citizenship’ is preferred to ‘nationality’ when it describes the consequences produced by the status of ‘nationality,’ ie the rights and duties under national law.63 According to Daniel Thym, most lawyers use the term ‘nationality’ with reference to formal status or frame, while citizenship is either used interchangeably or with a wider connotation hinting at the contents under domestic (constitutional) law, including political rights.64 Although both terms refer to the status of an individual in his or her relationship with the state, they do not necessarily describe the same ­relationship

62

63 64

‘Some Considerations upon the Protection of Individuals in International Law’ (1956-II) 90 Recueil des Cours 39 536; Jones (n 26) 239–240, 243–244; Dugard, (n 11) paras 106–111. Commentary to Art 6 of 2002 Provisional Draft on Diplomatic Protection (n 40) 73, para 3; Commentary to Art 7, ilc’s Draft Articles on Diplomatic Protection (First reading 2004) with commentaries [hereinafter, ‘2004 ilc’s Draft on Diplomatic Protection (first reading)’], in Yearbook of the International Law Commission 2004, Vol II(2) & 2006 ilc’s Draft on Diplomatic Protection (n 1) para 3. Dörr (n 15) para 2. Thym (n 10) footnote 130; see also Stefan Kadelbach, ‘Union Citizenship’, in Armin von Bogdandy and J. Bast (eds) Principles of European Constitutional Law (Oxford: Hart/Beck, 2009) 443.

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towards the state as they do in certain national legal systems.65 Since the meaning of ‘nationality’ or ‘citizenship’ differs from jurisdiction to jurisdiction, it is difficult to find a critical distinction between them from their functions in international law.66 Therefore, they are even used as synonyms.67 We can still find a subtle nuance of meanings in the context of international law: ‘nationality’ is mainly mentioned in the context of personal jurisdiction of a state and its discretion, whereas ‘citizenship’ has more positive implications for the protection of human rights. Citizenship has been discussed in human rights, especially in relation to the right to vote, but this is not the case for nationality.68 Indeed, international legal instruments for human rights protection commonly mention ‘citizenship’ instead of ‘nationality.’ For example, a legal opinion prepared by the un Secretariat for a Working Group of the Third Committee of the General Assembly articulates their differences as follows: ‘Nationality’ is that quality or character which arises from a person’s belonging to a nation or State. … ‘Citizen’, on the other hand, is the term normally applied to describe an individual who under the laws of a particular State is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil and political rights.69 In this argument, lawyers ignore another important group that some jurisdictions categorize as ‘citizen,’ precisely, foreign citizens who are not nationals of the country of their domicile. For the last three decades, the interest of political philosophers has focused on this new group called ‘denizens’, who are neither regular foreign citizens nor naturalised citizens of the host state.70 This expression itself has been used in the practice of ‘denization’ in archaic British law for ‘[o]ne who lives habitually in a country but is not a native-born citizen; a foreigner admitted to residence and certain rights in a country; in the law of 65

66 67 68

69 70

Legal Opinions of the Secretariats of the un, ‘Use of the Term ‘Non-Citizen’ in International Practice’ (Paper prepared for a Working Group of the Third Committee, 24 Oct. 1980) in (1980) un Judicial Yearbook 189, 189–190, para 3. Ibid, 190, para 6–7. Jean Salmon, ‘Citoyenneté’ in Dictionnaire de droit international (Bruxelles: Bruylant, 2001), 175. Romano v Comma, Egyptian Mixed Court of Appeal, 12 May 1925, Gazette des Tribunaux Mixtes 1926, 158, para. 3 (Annual Digest of Public International Law Cases, vol. 3 1925–1926, 265–266). Legal Opinions of the Secretariats of the un (n 65) 190, para. 4. Meghan E. Benton, A Theory of Denizenship (Doctoral Thesis, University College London, 2010), 10–15.

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Great Britain, an alien admitted to citizenship by royal letters patent, but incapable of inheriting, or holding any public office.’71 Considering a major change in the legal residence status of foreign citizens in the 1980s, Tomas Hammar, a Swedish philosopher, revised this old English word to designate those who are granted permanent work and residence permits without time restrictions or the need for prolongation and granted full social and legal rights.72 Denizens are different from ‘citizens’ of the country of their domicile in the sense that they are not granted full political rights but are also distinguished from regular foreign citizens being temporary visitors, tourists, guest-workers, etc. who do not want to get or have not yet obtained permanent resident status of the host state.73 The term ‘denizenship’ is not common among lawyers, just because this conceptual expression itself does not appear in legal documents. However, the philosophical development of this concept indeed reflects legal proceedings as will be shown below. Within these legal proceedings the core value of denizens is described by existing legal expressions although they do not make explicit references to ‘denizenship’. Residence as a Primary Identification in Certain Cases In fact, some legal practices show that there is a trend putting more value on the actual residence than formal nationality. Within this trend the country of residence tends to treat foreigners as de facto nationals, whose status is effective, dominant, and superior even to their official status as foreign nationals. An early sign of this idea can be found in a domestic criminal proceeding of the uk after wwii. In the Joyce case of 1946,74 the accused, a natural-born American citizen, was found guilty of treason despite his American nationality. He had resided on British territory for about 24 years and had obtained a British passport by describing himself as a British subject by birth. On its expiration, Joyce obtained renewals on September 24, 1938 and August 24, 1939, each for one year, again describing himself as a British subject. After the outbreak of wwii and before the expiration of the validity of the renewed passport, he was found to have been employed by a German radio company and to have ­broadcasted

71 72 73 74

Oxford English Dictionary (Oxford: Clarendon Press, 1989). Tomas Hammar, Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration (Aldershot: Avebury, 1990) 12–21. Ibid, 16. Joyce v Director of Public Prosecutions [1946] a.c. 347.

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talks in English that were hostile to Great Britain. He was alleged to have no moral right to return to Great Britain, as he only had us nationality.75 The prosecution reasoned that ‘[a]llegiance ceases when protection ceases’.76 Joyce chose by his own will to obtain and renew his British passport several times even though he did not need it to leave England nor, if he could establish his American nationality, to enter the us. Under international conventions, one of the uses of a passport is that the issuing country is bound to receive back the person holding the passport. A passport is a method by which the Crown accords its protection to persons abroad. By applying for a passport and renewing it several times, Joyce voluntarily sought the protection which the Crown can give to a British subject travelling abroad. He had made his home in England and enjoyed all the privileges of British citizenship. It would be an unthinkable outrage if it were held that while temporarily absent he was absolved from the reciprocal duty of allegiance and could not be held to have committed treason.77 Considering these arguments, the court found Joyce guilty because ‘an alien abroad holding a British passport enjoys the protection of the Crown and if he is adherent to the King’s enemies he is guilty of treason, so long as he has not renounced that protection’.78 According to Lord Jowitt, the value of the passport was emphasised above his real nationality not only because of the existence of international customary rule, which claims that every state holds the right to protect its citizens abroad, but also because of the special value as a British subject in Germany. For this character, he was employed as a broadcaster and his British passport was doubtless accepted as the ‘voucher’.79 The British court notably considers here the possession of a passport as a method to receive the ‘protection which the Crown can give to a British subject travelling abroad’ that may include diplomatic protection in a sense we are arguing. This is because, as Borchard wrote in 1927, although its absence is not fatal to protection, a passport is considered to be a prima facie warrant of diplomatic protection, and its possession is evidence of citizenship under

75 76 77 78 79

Ibid, 348–349. Ibid, 357. Ibid, 358–360. Ibid, 347. Ibid, 371–372.

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international law.80 In fact, the argument disregarded the means he employed to obtain a British passport in a genuine manner, even though it was an absolute mistake by the British administration to issue a genuine British passport to a non-British person. It was also a mistake of Mr. Joyce who had never realised his real nationality until the proceedings started. In other words, it was his ‘social fact of attachment, a genuine connection of existence, interests and sentiments’ with Great Britain – a son of a naturalised American citizen who had previously been a British subject by birth – that caused these mistakes and made him guilty.81 Although this is very exceptional case not necessarily related to diplomatic protection, Joyce case suggests that long-term residence could be an element generating ‘a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’ to the extent that it would be equivalent to or even superior to formal nationality. This conclusion is reinforced by the contemporary developments in human rights law as discussed in the next section.

Enhanced Protection of Residence in International Human Rights Instruments In the terminology usually employed in international human rights law, the core value of denizens’ protection is described as the right of residence security and family reunification. Indeed, cross-border family unity issues and related residence security problem arise most frequently when a host state either seeks to deport one member of a family of non-citizens, or seeks to deny entry to an individual seeking to join family members already residing in the state.82 The Human Rights Committee rightly pointed out in its General Comments that the right to family unity is not limited to citizens;83 and the right to enter one’s own country may include not only nationals but also ‘other categories of long-term residents, including but not limited to stateless persons.’84 The current human rights jurisprudence shows a trend towards protecting established social and fiscal lives of long-term residents in the country where they have domicile, though the traditional idea of sovereignty allows states

80 81 82 83

84

Borchard (n 25) 493–494. Ibid, 348. Kate Jastram, ‘Family Unity’ in Thomas A. Aleinikoff and Vincent Chetail (eds) Migration and International Legal Norms (Den Haag: t.m.c. Asser, 2003) 186. Human Rights Committee, General Comment 15, The Position of Aliens under the Covenant, un Doc HRI/GEN/1/Rev.9 (Vol i) (2008) para 7; Report of the Special Rapporteur on the Human Rights of Migrants, 9 Jan 2001, un Doc. E/CN.4/2001/83, para 24. Human Rights Committee, General Comment 27, Freedom of Movement, un Doc CCPR/C/21/Rev.1/Add.9 (1999), para. 20.

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to have absolute discretion for control over the entry and stay of foreigners. The European Court of Human Rights (ECtHR) is the first international court, which extended the human rights of foreigners beyond the sphere of forced migration to voluntary migration.85 Based on Article 8 of the echr, the Court has gradually extended the reach of protection since 1991, when it first qualified the deportation of a foreigner as a violation of his right to family life.86 This timing corresponds perfectly to when Hammar reviewed the idea of ‘denizen’ with regard to major change of the legal residence status of foreign citizens in West Europe.87 Those denizens may consist of second-generation immigrants who may still possess the nationality of their state of origin, but such a bond is only paper-based. They have, rather, stronger connections with the state of their domicile, since [t]hey have received their education, established most of their social contacts and hence developed their personal identity there. They were born or relocated in the host country as a consequence of the emigration of their parents and usually maintain their principal family relations there. Some of these immigrants have conserved nothing with their country of origin but only the sole link of nationality.88 In recent years, ECtHR obliged a contracting state to grant foreigners the option of cross-border family reunion in its territory with family members living abroad;89 and it has further extended the protective reach of Article 8 of echr to cover long-term residence status, including a potential right to regularize illegal stay.90 Recently, the Court has been focusing on protection of core family composed of spouses and minor children. On the other hand, it declared that long-term-residence status now enjoys autonomous human rights protection under Article 8 of echr, independent of the family situation, because it is ‘the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of ­every human being.’91 85 86 87 88 89 90 91

Thym (n 10) 106–107. Moustaquim v Belgium App no 12313/86 (ECtHR 18 Feb 1991). Hammar (n 72) 19. Benhebba v France App no 53441/99 (ECtHR 10 July 2003) para 33 [only in French: translation by the author]. Şen v the Netherlands App no 31465/96 (ECtHR 21 Dec 2001). Slivenko et al. v Latvia App no 48321/99 (ECtHR 9 Oct 2003) and Sisojeva v Latvia App no 60654/00 (ECtHR 15 Jan 2007). Thym (n 10) 115; Slivenko et al. v Latvia (n 90) para 96.

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Although all these arguments have mainly advanced in the context of immigration control, they also have a potential to be a legal basis for restricting states discretion in the exercise of diplomatic protection in favour of its nationals as well as long-term residents possessing third country nationality, especially in certain extreme cases that are discussed below. V

Using Human Rights to Constrain the Discretion of States: Towards a Compulsory Diplomatic Protection

Diplomatic protection is a tool used to protect citizens abroad when they suffer due to a wrongful act of another state. If one uses the terminology of the ilc, a state is indirectly ‘injured’ through and because of the injury suffered by its nationals.92 This allows the state to apply for diplomatic protection, that is, to invoke the responsibility of the wrongdoer. The historical development of the concept of diplomatic protection through international arbitrations between European and Latin American states reveals that the origins of diplomatic protection have an interventionist nature.93 As it is well known, this old-fashioned legal fiction of diplomatic protection was formulated in the 1924 Mavrommatis Palestine Concessions case: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights.94

92

93

94

Commentary to Art 1, para 3 of the 2006 ilc’s Draft Articles on Diplomatic Protection (n 1) 25; Emer de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and Sovereigns, Vol iii (C.G. Fenwick tr, first published 1758, Washington: Carnegie Institution, 1916) Chap. vi, 136. Daniel Müller, ‘The Work of García Amador on State Responsibility for Injury Caused to Aliens’ in J. Crawford et al (eds) The Law of International Responsibility (New York: Oxford University Press, 2010) 70; Philip Jessup, A Modern Law of Nations (New York: MacMillan, 1958) 96. Mavrommatis Palestine Concessions (Greece v uk) (Judgment) [1924] pcij Series A, no 2, 12.

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This approach, which is still defended by the icj,95 was indeed strongly influenced by Dionisio Anzilotti’s dualistic understanding of international law.96 Anzilotti served at the pcij as a judge, and during that period the fiction that underpins diplomatic protection was generally supported as a corollary of state sovereignty.97 Authors supporting his view have sought to explain and justify it on a number of bases, including the right to equality,98 the mutual respect between states,99 and the duty to grant legal protection to foreigners as far as the safety of persons and property are concerned.100 Other authors continuously criticized this approach. As early as in 1930s, several authors of l’Instute de droit international insisted that the exercise of diplomatic protection is not a discretion but rather an obligation a state owes to its nationals.101 In a similar context, some writers argue that a state is never injured when it exercises diplomatic protection on behalf of its nationals who are the real victims; the state merely substitutes or represents private claims in the circumstances where international remedies are not available for private persons.102 95

See for example Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (New Application: 1962, Preliminary Objections, Judgment) [1964] icj Rep 6, para 85. 96 Dionizio Anzilotti, ‘La responsabilité internationale des états – à raison des dommages soufferts par des étrangers’ (1906) 13 Revue générale de droit international public 5, 8–10; Hersch Lauterpacht, The Development of International Law by the Permanent Court of International Justice (London: Longmans, 1934) 51–53; Roland Portmann, Legal Personality in International Law (New York: Cambridge University Press, 2010) 69–73. 97 His dualistic view of international law has been repeatedly confirmed in the pcij’s jurisprudences. For example, Factory at Chorzów (Germay v Poland) (Merits, Judgment) [1928] pcij Series A, no 7, 28; Serbian Loans (Serbia v France) (Judgment) [1929] pcij Series A, no 20, 41; Jurisdiction of the Courts of Danzig (Advisory Opinion) [1928] pcij Series B, no15, 17–18; Panevezys-Saldutiskis Railway (Estonia v Lithuania) (Judgment) [1939] pcij Series A/B, no 76, 18. 98 John N. Pomeroy, Lectures on International Law in Time of Peace (Boston: Woolsey’s ed, 1886) para 205, 313–314. 99 William E. Hall, A Treatise on the Foreign Powers and Jurisdiction of the British Crown, 6th ed (Oxford: Atlay, 1909) para 5, 4. 100 Lassa Oppenheim, International law, a treatise, 2nd ed (London: Longmans, 1905) sec 142, 319. 101 See views recorded during the discussion of the Oslo Session of 1932 in (1932) 37 Annuaire de l’Institut de Droit International, by Francisco L. de la Barra, 263, de la Pradelle, 492–493 and Coudert, 500. 102 Jackson H. Ralston, The Law and Procedure of International Tribunals (Stanford: Stanford University Press, 1926) 147–148; Clyde Eagleton, The Responsibility of States in International Law (New York: New York University Press, 1928) 221; Friedrich A. von der Heydte, ‘L’individu et les tribunaux internationaux’ (1962-III) 107 Recueil des cours d’Académie de

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These arguments have remained a pure academic controversy for a century until cases brought from the Guantanamo Bay detention camp have materialised this discussion into a real problem within social life. With regard to a theoretical evolution for protection of residence security in human rights law, it is now necessary to examine whether such an evolution has an impact on the way that diplomatic protection, which is considered to be under the absolute discretion of the State looking to invoke it, is exercised.

Compulsory Diplomatic Protection for Citizens in Case of a Grave Breach of a Jus Cogens Norm Considering the case of nationals, Dugard in his draft Article 4 proposed to create the obligation of a state to exercise diplomatic protection on behalf of its injured nationals ‘if the injury results from a grave breach of a jus cogens norm’.103 This draft provision was proposed as a lex ferenda but was severely criticised at the ilc for its lack of opinio juris and thus deleted from the final document.104 If proposal was retained, then a state that waived private claims against the responsible state should be responsible for not invoking diplomatic protection for their nationals. On this point, however, the obligation to provide diplomatic protection for grave violation of human rights seems to be emerging at the national level with respect to the wwii-related compensation disputes in South Korea and Italy. In 2012, the Constitutional Court of the Republic of Korea found that it is the state’s duty to tackle the problem of war compensation, which is a fundamental right of its nationals.105 In Italy, the Constitutional Court refused in 2014 to

droit international 287, 325–326; Maximilian Koessler, ‘Governmental Espousal of Private Claims before International Tribunals’ (1946) 13 Chicago Law Review 180, 189. 103 Dugard (n 11) Art 4, paras 75–93. 104 Report of the ilc on its work 52nd Session, in Yearbook of the International Law Commission 2000, Vol ii, Part II.78, paras 450–451. 105 Republic of Korea Constitutional Court, Determination of the constitutionality of the inaction with respect to Article 3 of the Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan, Anonymous (64 former Japanese military sex slaves) v Minister of Foreign Affairs and Trade, Individual constitutional complaint, Decision of Aug 30, 2011, 23-2(A) kccr 366, 2006 Hun-Ma788, available at http://search.ccourt.go.kr/ths/pr/eng_pr0101_E1.do?s eq=1&cname=%EC%98%81%EB%AC%B8%ED%8C%90%EB%A1%80&eventNum=174 50&eventNo=2006%ED%97%8C%EB%A7%88788&pubFlag=0&cId=010400 (last visited 10 Feb 2017).

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implement the icj’s judgment of 2012106 stating that the guarantee of access to a court in the Italian Constitution cannot be waived even in face of international obligations.107 Among other decisions, the Kaunda decision in 2004 should be analysed here. The claimants were a group of South African citizens arrested in Zimbabwe on the way to work as security guards for a mining company in the Democratic Republic of Congo. They asked the South African government to intervene in their case because they were at risk of being extradited to Equatorial Guinea where there was a danger of being accused of being mercenaries and plotting a coup against the president.108 According to the claimants, they should enjoy the right to diplomatic protection based on Section 3(2) of the Constitution providing that ‘[a]ll citizens are (a) equally entitled to the rights, privileges and benefits of citizenship’, in conjunction with Dugard’s Draft Article 4.109 However, the court unanimously dismissed the claim because of the lack of evidence suggesting that the charges faced by the applicants in Zimbabwe were not offences according to Zimbabwean law. Moreover, there was no evidence to justify bringing such charges against them.110 Indeed, no real risk that they would be likely to face proceedings in Zimbabwe regarding their extradition to Equatorial Guinea was established.111 In addition, remedies were not available for the claimants because capital punishment is permissible under international law and the South African government does not comment on the justice systems of foreign countries.112 The general remarks made in the conclusion are interesting to quote here: 5. South African nationals facing adverse state action in a foreign country are, however, entitled to request the South African government to provide protection against acts which violate accepted norms of international law. The government is obliged to consider such requests and deal with them appropriately. 106 Jurisdictional Immunity of the State (Germany v Italy: Greece intervening) (Judgment) [2012] icj Rep 99. 107 Italian Constitutional Court, Judgment no 238-Year 2014, 22 Oct 2014. English translation is available at http://www.cortecostituzionale.it/documenti/download/doc/recent_judg ments/S238_2013_en.pdf (last visited 10 Feb 2017). 108 Kaunda (n 12), paras. 2–3. 109 Ibid, paras 23–28. 110 Ibid, paras 95–96. 111 Ibid, paras 104, 106. 112 Ibid, paras 112, 122, 133.

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6. Decisions made by the government in these matters are subject to constitutional control. Courts required to deal with such matters will, however, give particular weight to the government’s special responsibility for and particular expertise in foreign affairs, and the wide discretion that it must have in determining how best to deal with such matters.113 The Constitutional Court deduced the obligation from a general constitutional provision of human rights granted to its citizens. This argument may affect the emerging norm obliging a state to exercise diplomatic protection in favour of the members of its political community, since the same can be said when international human rights norms are interpreted and applied with such a connotation.114 In this judgment, Chief Judge Chaskalson notes that the Constitution may apply beyond the borders only if there are ‘special circumstances’ where such an application ‘does not interfere with the sovereignty of other states’.115 Nonetheless, ‘[t]raditionally, international law has acknowledged that states have the right to protect their nationals beyond their borders but are under no obligation to do so’:116 There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to the government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action. There may even be a duty on government in extreme cases to provide assistance to its nationals against egregious breaches of international human rights which come to its knowledge. The victims of such breaches may not be in a position to ask for assistance, and in such circumstances, on becoming aware of the breaches, the government may well be obliged to take an initiative itself.117

113 Ibid, para 144. 114 In addition to provisions concerning residence security and family reunifications, the right to life can be interpreted in a way obliging a state to exercise diplomatic protection for its nationals, citizens, and denizens. 115 Kaunda (n 12) paras 36, 44. 116 Ibid, para 23. 117 Ibid, paras 69–70.

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Judges Langa, Moseneke, Skweyiya, van der Westhuizen and Judge Yacoob agreed with the judgment of Judge Chaskalson.118 However, Judges Ngcobo119 and Sachs120 confirmed that the Constitution obliges the government ‘to consider properly the request for diplomatic protection’ with due regard to the provisions of the Constitution, while Judge O’Regan expressed that ‘[i]t is not only its constitutional obligation to take appropriate steps to provide diplomatic protection to its nationals that requires government to consider this matter, but the developing global and regional commitment to the protection of human rights also requires government to be responsive to these issues’.121 In 2008, ‘the framework of the principles of the Kaunda judgment’ was scrutinised by the Supreme Court in a separate case.122 According to the Supreme Court, it is a ‘right to diplomatic protection’ and not a ‘right to have a request [for diplomatic protection] considered’ nor ‘the duty of Government to provide a particular type of diplomatic protection’.123 This ‘right to ask for diplomatic protection derives from s 3 [viz. Section 3] of the Constitution as an aspect of citizenship – and nothing else’.124 The argument developed by the South African courts is so innovative in deducing the right to diplomatic protection from a general provision that this may be triggered in (almost all) other states that have a similar constitutional provision. As diplomatic protection allows a state to take up the case of its subjects,125 the right to diplomatic protection cannot exist independently of the state’s action. Here, such a right and corresponding governmental obligation is presumed to exist in cases involving ‘a gross abuse of international human rights norms’ as far as the constitution has a general provision concerning human rights for those who have certain membership in that state. Diplomatic Protection for Non-nationals with a Licit Domicile In recent doctrinal arguments and judicial decisions, there are some developments for admitting diplomatic protection exercised by a state in favour of non-nationals, especially stateless persons and refugees who have legal resi-

118 119 120 121 122 123 124 125

Ibid, para 145. Ibid, para 210. Ibid, para 275. Ibid, para 267. Van Zyl v Government of the Republic of South Africa [2008] 3 sa 294, para 53. Ibid, paras 52–53. Ibid, para 61. Mavrommatis Palestine Concessions (n 94).

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dences in that state. In principle, since a refugee ‘is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’,126 protection from his or her state of nationality can never be expected.127 Neither can a stateless person expect such protection. Following the traditional logic of diplomatic protection, a state ‘does not commit an international delinquency in inflicting an injury upon an individual lacking nationality, and consequently, no State is empowered to intervene or complain on his behalf either before or after the injury’.128 However, some development contrary to this principle can be observed. For instance, Article 25 of the 1954 Convention relating to the Status of Stateless Persons stipulates that ‘[w]hen the exercise of a right by a stateless person would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting State in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities’.129 Further, ‘a national of a State’ includes ‘a stateless person having his habitual residence in that State’ according to the 1961 Draft Convention on the International Responsibility of States for Injuries to Aliens.130 A more recent example is Article 8 of the 2006 ilc Articles on Diplomatic Protection. According to this article a state may exercise diplomatic protection in respect of ‘a stateless person who, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State’; and ‘a person who is recognized as a refugee by that State, in accordance with internationally accepted standards, when that person, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.’131 This exercise in the progressive development of international law from a humanitarian perspective departs from the traditional rule of diplomatic protection.132 The term ‘refugee’ employed here 126 Art 1 A (2) of Convention Relating to the Status of Refugees, 28 July 1951, 189 unts 137, amended by Protocol relating to the Status of Refugees, 31 Jan 1967, 660 unts 267. 127 Atle Grahl-Madsen, ‘Protection of Refugees by Their Country of Origin’ (1986) 11 Yale Journal of International Law 362, 389–391, 394. 128 Dickson Car Wheel Company v United Mexican States (1931) 4 un Reports of International Arbitral Awards 669, 678. 129 Art 25 (1) of the Convention Relating to the Status of Stateless Persons, 28 Sep 1954, 360 unts 117. 130 Art. 21(3)(c) of the Draft Convention on the International Responsibility of States for Injuries to Aliens in Louis N. Sohn and R.R. Baxter, ‘Responsibility of States for Injuries to the Economic Interests of Aliens’ (1961) 55 American Journal of International Law 545. 131 Art 8 (1) of the 2006 ilc’s Articles on Diplomatic Protection 2006 (n 1). 132 Commentary to Art 8, ibid, paras (1)–(2), (4), (11)–(12); Dugard (n 11) paras 175–184.

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is not strictly limited to refugees as defined in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Rather, it aims to cover, in addition, persons who conform to the broader standards expounded in different conventions, especially through regional instruments.133 Therefore, this provision attracted criticism at the Sixth Committee of the General Assembly.134 ­However, only one state commented negatively on the proposal.135 The proposal has been accepted at the end because a failure to grant diplomatic protection in such circumstances is considered to be hardly imaginable in practice given that stateless persons or refugees are rarely injured outside their country of lawful and habitual residence.136 Nevertheless, such a rare problem actually arose at Guantanamo Bay. After the Abbasi case brought by British detainees with a view to persuading the ­British government to intervene and secure their return to the uk, the government had already intervened with the us authorities in relation to British ­nationals detained in Guantanamo.137 However, it refused to do so at the beginning in the case of non-nationals, including refugees, even though they were lawfully residing in the uk before their travel overseas and subsequent detention, and notwithstanding the fact that many still had family in the uk, many of whom were British citizens. In the Al Rawi case of 2006, the detainee claimants were not British nationals but they had been granted indefinite leave to remain in the uk or were British-recognised Convention refugees issued with Convention travel documents valid for 10 years.138 Following intervention by 133 Commentary to Art 8 (2), ibid, para (8). 134 Sixth Committee 2000 (n 39) paras 228–231. 135 With regard to the 2004 ilc’s Draft on Diplomatic Protection (first reading), Austria, the Netherlands and Norway, on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), as well as Panama welcomed Art 8 with a view of progressive development of international law; by contrast, the uk expressed negative remarks about it, presumably because the Al Rawi case was pending in its courts. Comments from Governments are contained in (n 43) 24–26 and un Doc A/CN.4/561.Add1, 8. 136 ilc Report 2000 (n 39) paras 487–494. Refugees are most probably injured by their state of nationality but their state of residence cannot exercise diplomatic protection in such a case as explicitly mentioned in Art 8 (3). 137 This intervention resulted from the case brought by the detainee’s families asking governmental intervention for their release from Guantanamo Bay, although neither the High Court nor the Royal Court of Justice dismissed their claims. Abbasi v Secretary of fco (n 3). 138 R (Al Rawi & Others) v Secretary of fco [2006] ewhc 972 (Admin), Judgment of 4 May 2006.

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unhcr,139 the claimants refuted the decision of the government not to formally represent the detainee claimants in this case, which constitutes ‘direct discrimination on racial grounds (viz. nationality)’ contrary to Sections 1(1)(a) and 19B(1) of the 1976 Race Relations Act and Article 14 of the echr, with other violations of human rights and refugee law.140 Against these claims, the Court stated that ‘non-nationals have been treated differently from the nationals not because of their race (nationality) but because one group is entitled to diplomatic protection and the other is not.’141 Considering the argument for family reunification and residence security in the previous section, the argument for human rights has a potential for restricting such a discretion and distinction between nationals and non-­nationals. Therefore, by emphasising the traditional diplomatic protection rule, the English Court avoided touching upon the problem of discrimination. While the Court mentioned Article 8 of the 2006 ilc Articles, it concluded that this provision is ‘no more than lex ferenda’.142 As discussed in the Al Rawi case, both the government and the court are ‘public decision-makers’ but they play different roles: the court should refrain from making decisions on the conduct of foreign relations but maintain ‘a special responsibility in the field of human rights’.143 A positive aspect of the above statement is that unlike in the Abbasi case, the national is described as having the right to diplomatic protection.144 In the Abbasi case, the court did not admit the existence of such a right; it was at most a ‘legitimate expectation’ of diplomatic protection, which is subject to the very wide discretion of the 139 For the case description by the agent of unhcr, see Guy S.Goodwin-Gill, ‘The Queen (Al-Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another (un High Commissioner for Refugees intervening)’ (2008) 20 International Journal of Refugee Law 675, 675–709. 140 R (on the application of Al Rawi & Others) v Secretary of fco & Another [2006] ewca Civ 1279, Judgment of 12 Oct 2006, para 66. The other provisions allegedly violated were Art 3 (interdiction of torture), 8 (respect for private and family life), the first paragraph of Art 1 of the First Protocol (enjoyment of his possessions) and Art 16 of the Refugee Convention (free access to the courts). 141 Ibid, para 78. 142 Ibid, paras 118–119. 143 Ibid, paras 131, 140, 147. 144 Lorna McGregor, ‘Legal Routes to Restoring Individual Rights at Guantanamo Bay: the Effectiveness of Habeas Corpus Application and Efforts to Obtain Diplomatic Protection’ in Alice Edwards and C. Ferstman (eds) Human Security and Non-Citizens: Law, Policy and International Affairs (Cambridge: Cambridge University Press, 2010) 584.

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government.145 Nevertheless, the uk government started negotiations with the us with a view of releasing all detained nationals in Guantanamo and succeeded in securing their release by 2005.146 Therefore, the statement made in the Al Rawi case can be considered to reflect this practice of the uk government, which confirms the existence of the right to diplomatic protection for British nationals. After the Al Rawi case, the uk government restarted negotiations with the us authorities for the release of the non-British nationals detained in Guantanamo,147 showing that while diplomatic protection for stateless persons and refugees used to be a mere lex ferenda in 2006, it is emerging as lex lata from the subsequent state practice as an existing international law.

Conclusion: Denizenship Instead of Nationality

In diplomatic protection, individuals (the victims) are connected with the state that protects them through their nationality. This ‘constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national’.148 Nationality amounts to a link, ‘status’, or ‘relation’ between persons and a state.149 Traditionally, no state was entitled to use diplomatic protection as a means to safeguard the rights of stateless persons.150 The socio-legal bond of nationality involves relations of allegiance and protection, whereas the rights and obligations of individuals are determined by the states to which they belong.151 In Diallo, the icj not only confirmed diplomatic protection, but also added certain innovative elements to it by stating that ‘the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the min145 146 147 148 149

Abbasi v Secretary of fco (n 3) para 106. McGregor (n 144) 576. Ibid, 585. Nottebohm (n 17) 23. Zsuzsanna Deen-Racsmány, ‘Diplomatic Protection and International Criminal Law: Can the Gap Be Bridged?’ (2007) 20 Leiden Journal of International Law 909, 911, footnote 8. 150 Anzilotti (n 96) 12–13. Contrary to this traditional rule, Art 8 of the 2006 ilc’s Draft Articles on Diplomatic Protection (n 1) is an attempt, which expands the scope of diplomatic protection to stateless persons and refugees. However, as the ilc itself recognises, such a provision is no more than an ‘exceptional measure introduced de lege ferenda’ in contemporary international law. See Commentary to Art 8 of the 2006 ilc’s Draft Articles on Diplomatic Protection (n 1) paras 1–2, 4, 11–12 and Al Rawi & Others (n 140) paras 118–119. 151 Amos A. Hershey, The Essentials of International Law and Organization (New York: Macmillan Company, 1927) 347.

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imum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights’.152 Therefore, the icj ordered the Democratic Republic of Congo to compensate Guinea for the material and non-material sufferings of Mr Diallo, a private merchant, resulting from the violations of his human rights.153 However, the questions remain why a state should be seen as being intangibly and indirectly injured for damages suffered by its nationals, and whether the sole link of nationality suffices to justify the entitlement of the state to invoke the responsibility of another state. Likewise, questions are raised as to how and why human rights are transformed through diplomatic protection into state rights. Human rights are by definition inherent to human beings and ought to be protected irrespective of nationality.154 Since direct remedies for human rights violations are now available for private persons in increasing number of states and regions, state-centric diplomatic protection appears relatively old-fashioned but there still exist lacunae where diplomatic protection remains useful. Against this difficulty, this ­chapter discussed the possibility to close such a protection gap by compulsory diplomatic protection with a special focus on the protection of residence security and family reunification. Indeed, it revealed the vulnerability inherent in the concept of nationality, which has been considered to be the core of diplomatic protection as a proof of ‘social fact of attachment’ to the state. Some more remarks are required with regard to the use nationality for legal proceedings. In particular, the effectivity of nationality could be conceptually assimilated with the right of residence security and family reunification since such effectivity is measured based on the strength of social attachment to that country. In international law, effectivity is discussed even for persons with a single nationality who have a stronger social connection with a country other than the country of their nationality. Such scenarios will only multiply with the increased globalisation and growth of mobility of persons across borders. In such a case, jurisprudence shows that the state of habitual residence is not allowed to exercise diplomatic protection against the state of nationality and that the former state may exercise diplomatic protection against a third State. Further, the impact of the Kaunda decision can-

152 Ahmadou Sadio Diallo (Guinea v drc) (Judgment) [2007] icj Rep 582, para 39. 153 Ahmadou Sadio Diallo (Guinea v drc) (Judgment) [2012] icj Rep 324. 154 Giorgio Gaja, ‘Is a State Specially Sffected When its Nationals’ Human Rights are Infringed,’ in Antonio Cassese and Lal C. Vohrah (eds) Man’s Inhumanity to Man – Essays on International law in Honour of Antonio Cassese (The Hague, London, New York: Kluwer, 2003) 382.

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not be ignored, as this characterises the nature of the ‘right to diplomatic protection’ as a ‘right of citizenship’. Provided that the right of residence security and family reunification contribute to creating a global right of denizenship, this argument can have a progressive impact and help restricting states’ discretion in exercising diplomatic protection in order to protect individuals’ permanent residence and their family lives. The lacuna of protection is to disappear if the Kaunda framework is globalised, meaning that everyone, irrespective of their nationality, can enjoy ‘denizenship’ based on habitual residence, centres of interests, family relationships, participation in public life or cultural affiliation, and economic interests. In this way, governmental obligation to provide diplomatic protection can be considered to be emerging globally, leading to a reduction of global suffering through global judicialisation. Bibliography Aghahosseini, Mohsen, ‘The Claims of Dual Nationals before the Iran–United States Claims Tribunal: Some Reflections’ (1997) 10 Leiden Journal of International Law 21. Amerashinghe, Chittharanjan F., Diplomatic Protection (Oxford: Oxford University Press, 2008). Anzilotti, Dionizio, ‘La responsabilité internationale des états – à raison des dommages soufferts par des étrangers’ (1906) 13 Revue générale de droit international public 5. Benton, Meghan E., A Theory of Denizenship (Doctoral Thesis, University College London, 2010). Bederman, David J., ‘Lump Sum Agreements and Diplomatic Protection’ Interim Report Submitted to the Committee on Diplomatic Protection of Persons and ­Property, ILA New Delhi Conference Report (2002), available at at http://www.ila-hq .org/index.php/committees (last visited 10 Feb 2017) Bederman, David J. ‘Nationality of Individual Claimants before the Iran-United States Claims Tribunal’ (1993) 42 International and Comparative Law Quarterly 119. Borchard, Edwin M., Diplomatic Protection of Citizens Abroad (New York: Banks Law, 1915). Brownlie, Ian, Principles of Public International Law, 7th ed (Oxford: Oxford University Press, 2008). Deen-Racsmány, Zsuzsanna, ‘Diplomatic Protection and International Criminal Law: Can the Gap Be Bridged?’ (2007) 20 Leiden Journal of International Law 909. Dörr, Oliver, ‘Nationality’ in Max Planck Encyclopedia of Public International Law (­online ed.; last updated on Nov 2006).

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Dugard, John R., ‘First Report on Diplomatic Protection’ in Yearbook of the International Law Commission 2000, Vol II(1). Fitzmaurice, Gerald G., ‘The Law and Procedure of the International Court of Justice: General Principles and Substantive Law’ (1950) 27 British Yearbook of International Law 24. Eagleton, Clyde, The Responsibility of States in International Law (New York: New York University Press, 1928). Gaja, Giorgio, ‘Is a State Specially Sffected When its Nationals’ Human Rights are Infringed,’in Antonio Cassese and Lal C. Vohrah (eds) Man’s Inhumanity to Man – ­Essays on International law in Honour of Antonio Cassese (The Hague, London, New York: Kluwer, 2003) 373. García Amador, Francisco V., ‘Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens: Revised Draft’ Yearbook of the International Law Commission 1961, Vol II, UN Doc A/CN.4/SER.A/1961/Add. García Amador, Francisco V., ‘Third Report on International Responsibility’ UN Doc A/ CN.4/111, in Yearbook of the International Law Commission 1958, Vol II, 61. Geck, Wilhelm K., ‘Diplomatic Protection’ in Rudolf Bernhardt (ed) Encyclopedia of Public International Law, Vol 1, (Amsterdam: North-Holland, 1992) 1050. Goodwin-Gill, Guy S., ‘The Queen (Al-Rawi and Others) v Secretary of State for Foreign and Commonwealth Affairs and Another (United Nations High Commissioner for Refugees Intervening)’ (2008) 20 International Journal of Refugee Law 675. Grahl-Madsen, Atle, ‘Protection of Refugees by Their Country of Origin’ (1986) 11 Yale Journal of International Law 362. Hall, William E., A Treatise on the Foreign Powers and Jurisdiction of the British Crown, 6th ed (Oxford: Atlay, 1909). Hammar, Thomas, Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration (Aldershot: Avebury, 1990). Hershey, Amos A., The Essentials of International Law and Organization (New York: Macmillan Company, 1927). Heydte, Friedrich A. von der, ‘L’individu et les tribunaux internationaux’ (1962-III) 107 Recueil des cours d’Académie de droit international 287. Jastram, Kate, ‘Family Unity’ in Thomas A. Aleinikoff and Vincent Chetail (eds) Migration and International Legal Norms (Den Haag: T.M.C. Asser, 2003) 185. Joseph, Cuthbert, Nationality and Diplomatic Protection – The Commonwealth of Nations (Leyden: A.W. Sijthoff, 1969). Jessup, Philip, A Modern Law of Nations (New York: MacMillan, 1958). Kadelbach, Stefan, ‘Union Citizenship’, in Armin von Bogdandy and J. Bast (eds) Principles of European Constitutional Law (Oxford: Hart/Beck, 2009) 443. Koessler, Maximilian, ‘Governmental Espousal of Private Claims before International Tribunals’ (1946) 13 Chicago Law Review 180.

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Scelle, Georges, ‘Règles générales du droit de la paix’ (1933-IV) 46 Recueil des cours d’Académie de droit international 657. Shaw, Malcolm N., International Law, 6th ed (Cambridge: Cambridge University Press, 2008). Sinclair, Ian M., ‘Nationality of Claims: British Practice’ (1950) 27 British Yearbook of International Law 125. Spiro, Peter J., ‘Multiple Nationality’ in Max Planck Encyclopaedia of Public International Law (online ed; last updated on Apr 2008). Thym, Daniel, ‘Residence as De Facto Citizenship? Protection of Long-term Residence under Article 8 ECHR’ in Ruth Rubio-Marín (ed) Human Rights and Immigration (Oxford: Oxford University Press, 2014) 106. Turgis, Sandrine, Les interactions entre les normes internationales relatives aux droits de la personne (Paris: Pedone, 2012). Vattel, Emer de, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and Sovereigns, Vol III (C.G. Fenwick tr, first published 1758, Washington: Carnegie Institution, 1916). Vissher, Charles de, Theory and Reality in Public International Law (PE Corbett tr, first published 1957, Oxford: Oxford University Press, 1968). Wyler, Eric, La règle dite de la continuité de la nationalité dans le contentieux international (Paris: PUF, 1990).

Part 3 Human Rights and Power of International Organisations

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chapter 6

International Organisations and the Pluralist International System: Threatening the Role of Human Rights? Scarlett McArdle Abstract This chapter examines the changed nature of the international legal system from one originally about the bilateral relationships between sovereign states to one that encompasses numerous actors, many of which have complex and multifaceted international identities. It argues that the international system has become increasingly pluralist but that the legal framework has not evolved to address this. The chapter does this by examining the Law of Responsibility and, most particularly, its more recent expansion to address the actions of international organisations. The chapter argues that the basic principles of responsibility and, in particular, the principle of attribution are still structured around the concept of the state and cannot address international organisations. With Responsibility existing to provide redress for breaches of the law and international organisations only growing in power and number, the inability of the legal framework to address these actors is a concerning limitation of the international system.

Keywords Pluralism – responsibility – attribution – international organisations – multilayered actors – redress

The late twentieth and early twenty first century has seen a continued expansion of human rights law. In spite of this development, the fundamental nature of rights has not changed and they continue to have the sovereign state at their

* Senior Lecturer in Law, School of Law, University of Lincoln, uk.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_008

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core; individuals exist as citizens within a sovereign state, which then has the power to grant, and subsequently protect, the rights of such citizens. The continued grounding of human rights within the traditional state based concept of international law within an international arena that now encompasses so many other international actors leaves any attempt to actively uphold such rights substantially limited. The explosion of international organisations, both in role and number, since the mid-twentieth century began to pose a general challenge to the traditional international law paradigm, with a new actor existing within the international system. This challenge has only expanded further with the evolution of institutions beyond simple collections of states into individual legal orders governing their own frameworks. The term ‘legal orders’ is used in this context to mean the existence of legal norms within a distinct legal framework. The terms ‘international system’ and ‘global system’ are seen as distinct concepts, with the international system addressing the traditional legal order of international law within which, for example, treaties and custom are regulated. The term ‘global’ is used in a much more flexible sense to mean the overarching legal space within which all legal orders, including the international legal order interact. The existence of a plethora of legal orders rather than simply the duality of a relationship between the international legal system and particular domestic legal orders has meant that a new conception must be made of a pluralistic global legal order. While the reality of the system may have changed, however, the normative framework continues to be one built around the traditional concept of international law, with the sovereign state still being given the primary role, as is the case with human rights. This chapter focuses on the principles of international responsibility as a mechanism for gaining redress for breaches of human rights principles. In particular, it focuses in terms of the issues it raises on applying principles of responsibility to the actions of international organisations. In largely being translated from principles of state responsibility, the application of such norms to institutional frameworks has a number of substantial flaws and the extent to which redress for rights breaches is able to be ensured is questionable. The limited development of the law of responsibility leaves these principles unable to address breaches by international organisations. The ability of these principles to address the multifaceted action now most common at the international level is highly limited. The possible solutions developed by courts to enable responsibility furthermore fail to address the inherent weaknesses in the principles. The chapter pursues this argument by, first of all, considering the theoretical foundations of the international legal system, arguing that it

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now exists in a pluralist manner focused around the interaction of distinct legal orders. Following this, the chapter considers the development of the law of responsibility to address international organisations. It argues that although this attempts to take the principles beyond the state, the principles retain foundations originally developed in relation to bilateral state interactions. They simply cannot respond to international organisations. The chapter then finally considers the practical consequences of such issues for the area of human rights protection, arguing that the limitations of responsibility threaten the role of human rights within the global international legal system. It argues that case law has developed some practical solutions to enable findings of responsibility by utilising the idea of dual attribution. The reasoning of the courts in this area undermines the core principles within the law of responsibility which only serves to leave their meaning in an uncertain state. I

A Pluralist International Legal System in a Framework Built for States?

The international legal system was originally centred around the concept of the sovereign state as the sole actor with which the international system was concerned. This continues to be the case in spite of the increasing variety of international actors and, more recently, legal orders that are only serving to shift the global order into an increasingly pluralist system. It is the increase in globalisation that has given increased weight to the argument defending the existence of legal pluralism.1 The sovereign state does, of course, continue to play a substantial role within the international legal system. In fact, the structures and systems of international law are still entirely grounded within this idea.2 Sovereignty is, however, largely conceived of from the internal concept of the state.3 The state remains sovereign in an internal sense; however developed the international system has become, ultimately a state’s internal affairs cannot be interfered with. The ‘traditional’ concept of the nation state, at least, remains self-determining internally. This has previously been ‘externalised’ by international law to result in this internal authority determining the status of international norms. 1 Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science, 243. 2 For example, see Article 2(4) un Charter. 3 Jean L. Cohen, ‘Sovereignty in the Context of Globalization: A Constitutional Pluralist Perspective’, in Samantha Besson and J. Tasioulas (eds) The Philosophy of International Law (Oxford: Oxford University Press, 2010) 261, 272–273.

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The high status placed on sovereignty largely arises from the importance of a state protecting its own internal affairs. This originates from a time when action was largely based on bilateral state relations as then the action at the international plane was a reflection of the internal needs and will of the state. This is no longer the case, however. The significant influx of actors and systems has moved beyond the notion of the traditional ‘nation state’. The growth of international organisations, both in terms of number and powers, has proven a particularly significant development in this regard. As institutions have grown in their ability, many have increasingly grown into autonomous international legal regimes. This leads to the existence of numerous legal orders within a single global space, giving rise to the question of how the interaction of norms is regulated. The difficulty with this existence of multiple legal orders is the lack of an overarching framework. The concept of a unitary system, as has long been the focus of the international system is, in fact, more recent than that of a multiplicity of norms. As early as the Middle Ages, there was a very early concept of the existence of a plethora of norms, systems and orders, all of which interact.4 This only really began to shift to the more unitary and homogenous concept of legal rules as understood in the international system with the Treaty of Westphalia in 1648, the development of the sovereign state and the explicit division of legal orders.5 Such a prominence for the state led to a system of international law focused around the state and state law, with its norms and development only emerging in response to state action and state consent. Originally the relationship between international norms and those of domestic legal orders, in such a binary existence, was characterised through the terms of monism and dualism. These terms no longer reflect the relationships at play, even at the binary level between the international order and the domestic level. They are too basic and, instead, need to be deconstructed.6 A pluralist concept needs to be developed that can address the multiplicity of legal norms at the global level. Pluralism can be conceived of as an approach to address what Krisch has titled ‘postnational law’; as the traditional Westphalian division between the international and the state has broken down, there now exists a ‘disorder of 4 Walter Ullman, The Medieval Ideal of Law (London: Barnes and Noble, 1969) 71. 5 Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global.’ (2008) 30 Sydney Law Review 375, 379–380. 6 Armin von Bogdandy, ‘Pluralism, Direct Effect and the Ultimate Say: On the Relationship Between International and Domestic Constitutional Law’, (2008) 6 International Journal of Constitutional Law 397, 399–400.

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orders’ within which numerous orders, actors and sub-orders coexist.7 As there is an increase in the relationship between international law and domestic law, as well as an increase in regimes and actors in international law, the interface between them increases and becomes more complex.8 As von Bogdandy has argued, constitutional systems no longer exist in the sense of ‘normative universum’ but rather in terms of ‘normative pluriversum’.9 There is a frequent degree of interaction between legal orders and this cannot be captured by a discussion in terms of such unitary activity. Rather, instead, it is only captured when such a discussion engages with the multiple layers that are now seen in global action. There are numerous legal orders developing and interacting internationally and to conceive of any sort of hierarchy is, at best, simply inaccurate and, at worst, will lead to such developments as have been seen with the law of responsibility and its inability to develop a comprehensive system of redress. It is to this end that pluralism provides a framework to consider such interaction and interdependence. In light of the numerous conceptions of legal pluralism, the present chapter conceives of it as characterising the multiplicity and high degree of interaction of differing legal actors, legal orders and norms. While there often exist discussions on the clashing of norms and systems, pluralism goes beyond this and conceives of these interactions as ones that are ‘complex and multisided’.10 At its most basic, pluralism seeks to address situations where there exist numerous orders with competing claims to authority. The European Union (eu) is a particular example of these difficulties. It’s evolution into an autonomous legal order with a comprehensive judicial system, together with its own evolution of legal norms with the capacity for direct effect within the legal systems of the Union’s member states shows a substantial development. It’s comparatively more recent evolution as an external actor has, furthermore, shown a significant interaction with international law. The actions of the Union externally have meant that it is bound, to a degree, by some principles of international law, while contributing to the development of other norms, showing the significant interaction of legal norms. A particularly clear statement on this comes from the Advocate General’s opinion in the Kadi case: This does not mean, however, that the Community’s municipal legal order and the international legal order pass by each other like ships in 7 8 9 10

Niko Krisch, ‘The Case for Pluralism in Postnational Law’, lse Working Papers 12/2009, 1–2. Ibid, 40–42. von Bogdandy (n 6) 401. Tamanaha (n 5) 399.

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the night. On the contrary, the Community has traditionally played an active and constructive part on the international stage. The application and interpretation of Community law is accordingly guided by the presumption that the Community wants to honour its international commitments. The Community Courts therefore carefully examine the obligations by which the Community is bound on the international stage and take judicial notice of those obligations.11 The existence of international legal norms, within the ‘traditional’ concept of the international legal system, eu legal norms and norms from domestic legal systems shows the degree of interaction that exists at the global level. Each of these norms can interact and seek to possess the same normative space. While the Union is a particularly well-developed legal order, the number and role of institutional frameworks developed substantially over the second half of the twentieth century, with a significant expansion in the past couple of decades. These frameworks also only provide additional principles and actions that engage and interact with the various legal orders. In considering the importance of the nature of pluralism, it is fundamental that no concept of hierarchy is conceived of. The predominantly analytical approach of pluralism is by far preferable to the predominantly normatively focused one of constitutionalism.12 The global order does not impose an overarching legal framework, nor yet can a sufficiently coherent set of ‘constitutional’ principles be identified under which all such norms and orders are governed. There is, instead, an interaction of various legal orders, in the truly pluralist sense. The conception of a global constitutionalism even in basic terms of the existence of a hierarchy of norms13 is misplaced, as the conception of an overarching system in place continues to pursue the ideal of a unitary monist legal order, rather than grasping the true level of interaction and interdependence that exists at the global level. To conceive of a global constitutionalism, it would need to be possible to conceive of an overarching global framework governing the variety of legal orders that exist and would also presuppose a set and established hierarchy between the various norms.

11 12 13

Case C-402/05 P Yassin Abdullah Kadi v Council and Commission, Advocate General (ag) Maduro’s Opinion, 16 Jan 2008, para 22. See, Krisch (n 7) 2. Erika de Wet, ‘The Constitutionalization of Public International Law’ in Michel Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 1209.

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This idea is not only largely utopian and unrealistic but its desirability even if it were feasible has been long questioned.14 While this broad notion of pluralism as explanatory of the nature of the global system is certainly accurate, there are difficulties with such an expansive concept, not least its uncertainty. Pluralism conceives of the relationship between legal norms as heterarchical and horizontal and not in any way hierarchical; there is an interaction of norms without the regulation of an overarching framework.15 While this is certainly a more accurate explanation of the relationships and norms at the global level, it does not succeed in explaining the interactions and reconciling the different systems and principles. This concept of pluralism results in the potential for coexistence but also the potential for such coexistence to be difficult or for clashes to arise.16 Two dominant problems emerge when faced with pluralism as an explanation of the global system. There exists first of all the conceptual difficulty: when there exists no hierarchy and no drawing together of norms, it is difficult to conceive of the consequences for such a system and how it could be implemented. The second difficulty is much more pressing and far harder to address. Irrespective of the way in which the global system is conceived, the structures and norms of the international legal system remain rooted in the traditional framework of the international system centred around the sovereign state. This gives rise to the development of legal principles that cannot address the actors that they purport to apply to. The first of these difficulties gives rise to a basic problem that pervades the entire concept of developing and applying legal norms. While there may, at times, be a lack of coherence between norms from different legal spaces and normative systems, how such clashes and interactions are dealt with has very little clarity. A clash and existence of tensions is not necessarily inevitable but the possibility does exist. This also follows through with the potential gaps in the applicability and upholding of norms and principles. The determination of the relevant norm in question may depend upon which ‘system’ or principle possesses the particular ‘normative space’ in question. It may be that there is no alignment that enables a determination to be made and, consequently, there arises conflict between norms or uncertainty as to their application. This first difficulty then further gives rise to, and compounds, the second; the international legal system continues to be structured and responsive to 14 15 16

Michel Rosenfeld, ‘Is Global Constitutionalism Meaningful or Desirable?’ (2014) 25 ejil 177–199. Cohen (n 3) 274–275. Tamanaha (n 5) 403.

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the sovereign state as the sole international actor. The global order may be becoming increasingly pluralist but this is without the accompanying development in norms and structures. These concerns can be seen prominently within the area of human rights. First of all, there are difficulties with the basic concept of rights, as this is one that emerged from state-focused nature of international system; the state existed as the ‘granter’ of rights upon the individual as the ‘receiver’. This is now not reflective of the nature of international actors – numerous other actors being involved in human rights issues. The extent to which this now enables human rights to develop and be upheld is questionable. There is also, however, the question of gaining redress for breaches of rights. Not only is the system of rights itself built around the concept of the state as the conferrer of rights upon its individual citizens, but the main system that exists for redress for breaches of international law is also built around the state. The law of responsibility was initially developed in response to the state as the primary actor at the international level. The basic concept of responsibility is inextricably linked to the concept of state sovereignty. These origins become apparent when examining the core principles of responsibility, which have a unitary concept of action at their core that this is responsive to the traditional structure of the state. The focus of these principles is upon a single ‘wrongdoer’ and a single ‘victim’ as reflective of the origins of responsibility as existing to uphold state sovereignty. This unitary nature cannot respond to the multi-layered and multifaceted activities that now occur at the global level. This becomes most pronounced with the difficulties in the implementation of the principles of responsibility of international organisations. II

The Law of Responsibility: Unable to Address the Increasing Actions of International Organisations?

The binary concept of the state within the international legal system has continued to persist with the development of the law of responsibility. Even when this development was explicitly seeking to address actors outside of this traditional framework, namely, international organisations. This difficulty hampers the ability of the international system to ensure redress for breaches of the law, such as those concerning human rights, thereby restricting the ability of individuals to gain redress for breaches of human rights.

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Some define the law of responsibility as being at the very core of international law.17 It is the main way in which breaches of international law can be addressed and so its ability to address actors engaged in international law is fundamental. The key importance of responsibility as an area of law was seen when it was placed as an initial topic for consideration by the International Law Commission (ilc) following its creation as the body responsible for the codification and progressive development of international law.18 It quickly became apparent, however, that the law of responsibility was only conceived of as the law of state responsibility.19 This continued to be the focus even despite early calls for the responsibility project to be conceived of in broader terms.20 There were early calls for the law to have the capacity to address international organisations, particularly following the issues surrounding the breaches of rights committed by United Nations peacekeepers in the Congo as early as the 1950s.21 Such actions had already begun to shift the early view of institutions as the ‘salvation of mankind’22 towards an understanding that such organisations needed to be conceived of within the framework of responsibility. Irrespective of the fact that pluralist conceptions of the global order were already beginning to emerge, the ilc was clear in its determination that the 17

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Factory at Chorzów (Germay v Poland) (Merits, Judgment) [1928] pcij Series A, no 7, 4,29; Alain Pellet, ‘The Definition of Responsibility in International Law’, in James Crawford, Alain Pellet and S. Olleson (eds) The Law of International Responsibility (Oxford: Oxford University Press, 2010) 3, 3; Third Report on State Responsibility by Roberto Ago, Special Rapporteur, A/CN.4/246 and Add. 1-3 (F) in Yearbook of the International Law Commission 1971, Vol ii (1) 199, 205, para 31. Art 1(1) Statute of the ilc, ga Res 174(II), 17 Nov 1947; First Report by Abdullah El-Erian, Special Rapporteur, Relations Between States and Inter-Governmental Organizations, A/CN.4/161 and Add.1, in Yearbook of the International Law Commission 1963, Vol ii, A/CN.4/SER.A/1963/ADD.1, 159, 184. Report on International Responsibility by Mr Francisco V. Garcia-Amador, Special Rapporteur, A/CN.4/96, in Yearbook of the International Law Commission 1956, Vol ii, 173. Report by Roberto Ago, Chairman of the Sub-Committee on State Responsibility, 16 Jan 1963, A/CN.4/152, in Yearbook of the International Law Commission 1963, vol ii, 227, A/CN.4/SER.A/1963/Add.1, 234. Exchange of Letters Constituting an Agreement Relating to the Settlement of Claims Filed against the un in the Congo by Belgian Nationals, New York, 20 Feb 1965, no 7780 (1965) Recueil des Traités 198; Vanessa L. Kent, ‘Peacekeepers as Perpetrators of Abuse. Examining the un’s Plans to Eliminate and Address Cases of Sexual Exploitation and Abuse in Peacekeeping Operations’, (2005) 14 African Security Review 85. Nagendra Singh, Termination of Membership of International Organisations (London: Stevens and Sons, 1958) vii.

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conception of law needed to remain one focused around the state. While the reality was that the system was already developing in pluralist terms, the system was very much retaining its sovereignty-focused approach. The system of responsibility was, in fact, utilised in order to reinforce this concept of the state as the sovereign actor; responsibility existed to ensure that obligations held towards sovereign states were upheld. Not only can this be seen in the basic concept of responsibility, but it can also be seen in the manner in which the responsibility obligations have been developed and further implemented. There has very much been an emphasis on the law of responsibility in bilateral terms; there is a general focus on the existence of a single responsible actor who has committed a wrong against a single ‘victim’. This is reflective of the traditional nature of international action, namely the traditional Westphalian notion of inter-state actions being bilateral relationships between states. It is furthermore reflective of the difficulties in retaining such an approach when the reality of the system has evolved far beyond this. This is only demonstrated further when considering the expansion and translation of the Articles on the Responsibility of States for Internationally Wrongful Acts (asr)23 to the Articles on the Responsibility of International Organisations (ario).24 Irrespective of the fact that the law has, on the face of it, now developed to address actors beyond the state, the structures and principles of the system have not been fully able to respond to the pluralist conception of the global order that is now in existence. The very basic concepts of responsibility continue to reinforce these difficulties. This is not least due to the fact that they remain identical irrespective of the actor that they are addressing: states or international organisations. The core principles are identical; responsibility will be incurred where an internationally wrongful act can be identified. An internationally wrongful act is constituted by a breach of international law that can be attributed to the responsible actor.25 While some commonalities in the law seemingly appears to be a logical approach, there is a particular problem with the principle of attribution. Attribution exists as a defining principle within the law of responsibility. It is a necessary component for the establishment of responsibility. An inability to clearly attribute action in line with the principles within the ario will mean an inability to determine and establish responsibility. This is a serious consequence and yet while the principles of attribution have kept this primary 23 24 25

General Assembly Resolution 56/83, 12 Dec 2001; Report of the ilc, 53rd Session, Yearbook of the International Law Commission 2001, Vol ii(2), 25. Report of the ilc, 61st Session, 2009, A/64/10, 13–178. Art 2 asr; Art 4 ario.

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determining position, they have also kept the same nature and basic concept as developed initially in relation to the state as an actor. There is a consideration that it is possible, and even desirable to determine action as that of a single actor, which is reflective of the origins of international action as being primarily bilateral. Attribution, irrespective of its application to states or institutions, seeks to make this determination of action in that ‘singular’ fashion. The attribution principles initially developed within the asr have been traced and the main concepts reproduced within the ario. Both primary principles of attribution, contained within Articles 6 and 7 ario are structured in response to the state as an actor. Article 6 states: 1. The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization. 2. The rules of the organization shall apply in the determination of the functions of its organs and agents. The difficulty with this provision is that it is premised upon the existence of organs or agents of the relevant international organisation. This shows a clear origin in relation to the state as an international actor; states have organs and agents through which they act. International organisations, on the other hand, frequently either do not have permanent organs or agents, or, if they do, then they do not rely upon them to act externally. Rather, they more frequently utilise other international actors or the personnel of other international actors. Article 6 ought to be the main article of attribution here but it’s origins in relation to state based action leaves its potential stunted. When considering the commentary to this Article 6, furthermore, it is noteworthy that it continually seeks to draw comparisons with the state as an actor.26 This is the only consideration that seems to exist when developing this principle. Rather than addressing the nature and actions of organisations, the ilc could only continue to turn to the concept and structures of the state as an actor. There was a refusal to fully engage with the multifaceted nature of international organisations and more broadly the increasingly pluralist international action that such principles of responsibility should have been considering.

26

Commentary to Art 6, ario, in Yearbook of the International Law Commission 2011, Vol ii (2) 17.

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Article 6 has seen very little application in the case law and its broader value therefore remains questionable.27 This article simply does not respond to the multifaceted nature of international organisations. With this limited focus upon the state concept of action an article has been created which largely cannot be used. While the global order has long seen an expansion beyond the state and international organisations have been at the forefront of the expansion of actors, as well as the increased plurality of legal orders at the global level, the law has not done so. The law of responsibility took time in expanding to address actors beyond the state acting at the global level and, even once it had, the principles remain so engrained around the concept of the state as an actor at the international level that they are incapable of applying to these actors. The other primary principle of attribution only serves to raise further difficulties in addressing the multiplicity of action engaged with by institutional frameworks. Article 7 ario is the dominant article that has been applied in the case law and utilized in attributing action to international organisations. It states: The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct. This Article considers the more frequent type of action engaged with by an international organisation at the global level; institutions most often rely upon ‘borrowing’ the organs and agents of other international actors in order to operationalise their own actions. Article 7 seeks to respond to this. It does still, however, conceive of international action in a unitary fashion as something to be determined as existing on the part of one actor or another, whether that be the state or organisation who has lent the organ or agent or the organisation under which that organ or agent is now acting. This is a division that needs to 27

Behrami and Behrami v France and Saramati v France, Germany and Norway App no 71412/01 and 78166/01 (ECtHR 2 May 2007); R (on the application of Al-Jedda) v Secretary of State for Defence, [2008] 1 ac 332; Case of Al Jedda v the United Kingdom App no.27021/08 (ECtHR, 7 July 2011); Netherlands (Ministry of Defence and Ministry of Foreign Affairs) v Nuhanovic, Final appeal judgment, ECLI/NL/HR/2013/BZ9225, 12/03324, Supreme Court, 6 Sept 2013; Claimant 1 et al and the Mothers of Srebrenica v the State of the Netherlands and the un Case Number C/09/295247/ ha za 07-2973, Judgment of The Hague District Court, 16 July 2014.

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be made in order to establish attribution. In requiring this, the Article retains a binary concept of action and fails to engage with the nature of international action, particularly action engaged with by institutional frameworks. The requirement to make this binary consideration is seen with the inclusion of the test of ‘effective control’. In applying the test of effective control a clear determination is needed as to which actor is possessing effective control. This article, as compared to Article 6, has been capable of application in the case law. The case law has only served to show the inability of this Article to apply to the multi-layered nature of institutional frameworks. The first difficulty arises with the effective control test being applied in a number of different ways. While the test does need to be capable of addressing the diverse range of circumstances that organisations find themselves engaged in, this does give rise to uncertainty in its meaning. At its simplest, the effective control test is inappropriate when faced with the multi-layered nature of international organisations. In its origins in the law of state responsibility, after a number of cases on this area,28 it became accepted that the effective control test was one with a high threshold that required the relevant state, as it then was, to be exercising complete authority over the organ or agent that had been lent to them. When considering the level of control discussed in relation to this test in the asr, it is argued that this substantial threshold would not be met if the home state were to be continuing to exercise any form of authority. This will simply not be the case. Organisations exist in such a developed fashion that leaves them capable of significant international action, however their nature is frequently what has been termed as ‘transparent’.29 They exist in a multi-layered fashion that leaves them simultaneously as autonomous international actors and also collections of autonomous member states. Any attempt to definitively say any action will be solely that of the autonomous international organisation and that a ‘loaned’ organ or agent will have no links with its home member state is unrealistic. This does not respond to the nature of international organisations, nor yet does it respond to the increasingly pluralist global activity that sees collectives of international actors engaged in international action. This takes the difficulties beyond the theoretical. The misalignment between the global order and the international framework results in a legal framework that is unable to address the actions occurring and runs the risk of an inability to address breaches of 28 29

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] icj Rep 14. Catherine Brölmann, The Institutional Veil in Public International Law. International Organisations and the Law of Treaties (Oxford: Hart, 2007).

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human rights. This next section illustrates these deficiencies using two strands of case law. It first of all considers the Behrami and Saramati cases arguing that a strict application of these principles has resulted in a lack of redress. It also considers case law that has undertaken a more flexible approach to these principles and sought to find a way in which redress can be gained, namely the cases of Nuhanovic; Mustafic and the Mothers of Srebrenica, all of which were brought against the Dutch state. While this approach may have furthered the possibility of redress, the case law did so by applying the principle of effective control in a way that does not fit with the accepted meaning of this legal test. This leaves the application of these principles in an uncertain position and questions the overall certainty and meaning of the law of responsibility III

The Threat to Human Rights: The Law of Responsibility and Its Inability to Address Institutional Legal Orders

The attempt to determine responsibility for human rights breaches by institutional frameworks has led to a number of concerning consequences, which is only further borne out when the case law in the area is considered. There have been cases which, firstly, resulted in no finding of responsibility and cases which, secondly, restrict the application of the principle of effective control. This latter category of case law has the benefit of enabling redress but leaves the principle of effective control in an uncertain position. The difficulties in both strands of case law, again, return to the nature of the principles as continuing to reflect the unitary concept of the state and the traditional format of the international legal system when the system itself has now shifted to a pluralist structure. The Inability to Determine Responsibility and a ‘Responsibility Gap’ The Behrami and Saramati cases are well documented and well criticised in the literature on the law of responsibility.30 The cases came before the European Court of Human Rights (ECtHR) seeking to address the actions of individuals who acted as a part of the un and nato operations in the region. The actions of such individuals led to the death and serious injury of two young boys, the 30

Behrami and Behrami v France and Saramati v France, Germany and Norway (n 26); Marko Milanovic and Tatjana Papic, ‘As Bad as it Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General international Law’ (2009) 58 International Comparative law Review 267; Kjetil M. Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’ (2008) 19 ejil 509.

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sons of Mr Behrami, and the unjust imprisonment of another individual, Mr Saramati. The particular question before the Court was one of jurisdiction, as the case was brought against the member states who had contributed personnel to the particular operations that gave rise to the cases. The Court utilised the principles of responsibility being developed and considered that actions of personnel were attributable not to the contributing state, but to the overall authority authorising the action, in this case the un.31 As a consequence, it determined that no jurisdiction could be established and the result was that there was no mechanism allowing the establishment of responsibility.32 The case showed a clear example of damage arising from a breach of an international law norm. The absence of responsibility for this largely arose from the inability of the international legal system to conceive of actors beyond the state, first of all, and, second, to conceive of an overarching framework that would recognise the nuanced interactions between different legal orders. In Behrami the difficulty was not simply in terms of the principles of responsibility. When seeking to apply these principles to the situation in Behrami, the court needed to consider action authorised by the un, involving nato operations and being carried out and operationalized for these institutions by a number of member states. At such a point, the Court needed to consider the intersection and interaction between numerous legal orders. This begins to show the practical difficulties of the pluralist system in existence and the reasoning in the case begins to show the inability of state-based principles to respond to such a system. Not only was the Court then limited in the problematic principles that it was seeking to apply, but also, the system itself is incredibly limited in its ability to comprehend this interaction of legal orders. The critiques and errors in the application of the problematic principles arise from the difficulties that courts and the overall system have in dealing with numerous actors and legal orders. Furthermore, in the Behrami case there are two main issues with the way in which the principles of responsibility were utilised. The first is an issue with the principles themselves, as the Court inappropriately applied them in order to try to address the complexity of action occurring in this case. The Court focused, appropriately, on the principle now codified in Article 7 ario, namely the principle that conceives of loaned organs or agents under the effective control of the responsible organisations. In doing so, however, the Court failed to fully grasp the complexity of interactions at play and, instead, simply sought to 31 32

Behrami and Behrami v France and Saramati v France, Germany and Norway (n 26) para 133–135. Ibid, para 151–152.

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apply the principle of effective control in a rather blanket fashion that would be comparable to the manner in which this principle is applied in the context of a traditional state action. Rather than recognising the nuances of the interactions at play, the Court determined that control could be traced to the un as the body that had authorised actions and was, therefore, in ‘overall’ control. This attempt to apply the principle of effective control seeks to engage it in the same manner it could be utilised in its application to traditional state based action. There was an attempt to focus on a unified actor rather than recognise the interactions of legal orders involved. When considering the variety of actors and regimes involved, it is not surprising that there was some uncertainty in the manner in which this principle of effective control should be applied. It is questionable whether any actor in such a circumstance would ever have ‘effective control’ over actors in the manner traditionally understood within the law of state responsibility. There is such a degree of interaction that control is inevitably split and often continues to change and shift in differing circumstances. The second issue shows broader implications. The ECtHR utilised principles of responsibility in order to address the question of jurisdiction. While the ability to deal with state action is fairly clearly established, questions of jurisdiction and the ability to hear claims that relate to international organisations or numerous legal systems remain uncertain. The Court had no capacity and no accepted principles by which to address the questions of jurisdiction that arose in this case. Its ability to engage and address breaches of rights committed within the realms of action involving institutional frameworks is highly limited. The principles of jurisdiction that the Court does possess only reflect the traditional concept of state based action, namely, they address cases when states parties to the Convention are able to engage jurisdiction. Cases such as Behrami and Saramati involve action that goes beyond this and, consequently, the Court had to seek to utilise available principles in order to address the questions before it. The end result of this case, and the inability to address the increasingly pluralist nature of international action, was that responsibility could not be established. When considering the rights questions that were at stake in a case such as this, the inability to engage and determine responsibility and ensure redress for such actions is highly concerning.

Piercing the Veil and Finding Responsibility on the Part of Member States? While the law has sought to address the actions of institutions, it could be argued that a solution exists in returning to the original actors around which the international system is focused and determining responsibility on the part of member states. There exists an argument that responsibility could be ensured

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if the veil of an institution is pierced and its member states are held to account for its actions.33 While this may have some theoretical benefits, it ignores the identity of institutions as autonomous actors in their own right that simply cannot be seen as collections of states. More specifically, the international system has moved beyond the state as the primary actor at the international level and now a substantially pluralist international order exists. The solution that views institutions as collections of member states would, again, seek to bypass this development. Part five of the ario comes closest to a solution of this type by addressing the responsibility of a state in connection with an act of an international organisation. The Articles 58 to 62 address situations where there exists a conduct attributable to an institution, but where a state has also been involved.34 The involvement of the state can take one of the following forms: aiding or assisting in the wrongful act,35 direction or control of the institution,36 coercion37 or the circumvention of a state’s international obligations through the actions of an institution.38 The vast majority of articles contained in this part still do not address the weaknesses in gaining redress for institutional action. The concept that institutions exist in some sense as collections of states, with this ability to turn to the state as a fallback, continues to prevail. The articles do not address the institutional conduct. Responsibility is, furthermore, found here for the coercion or assistance, for example, and not primarily for the international wrong committed. Much of this part is an exercise in progressive development on the part of the ilc and its potential application is far from clear. The final article of this part does require closer consideration, however. Article 62 enables responsibility on the part of a state for the wrongful act committed by an institution. It states:

1. A State member of an international organization is responsible for an internationally wrongful act of that organization if: (a) it has accepted responsibility for that act towards the injured party; or (b) it has led the injured party to rely on its responsibility.

33 See Westland Helicopters Ltd v Arab Organization for Industrialization, United Arab Emirates, Kingdom of Saudi Arabia, State of Qatar, Arab Republic of Eqypt, and Arab British Helicopter Company, Arbitration, 5 March 1984, 80 ilr 600; Brölmann (n 29) 29–33. 34 Commentary, Part v ario (n 25) 89–90. 35 Ibid, Art 58, 90–91. 36 Ibid, Art 59, 91–92. 37 Ibid, Art 60, 92–93. 38 Ibid, Art 61, 93–95.

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2. Any international responsibility of a State under paragraph 1 is presumed to be subsidiary.

The commentary to this article recognises that its accepted that member states are generally not responsible for the actions of institutions of which they are a member.39 To do otherwise would offend the autonomy and personality of the institution. While it perhaps shows some potential in the determination of responsibility and the enabling of redress for wrongs, it is difficult to envisage its application. Furthermore, if the content of paragraph two is considered, namely that any responsibility of a state being subsidiary, a gap in action, and potential wrongs, and redress remains.

Confusion in the Development of the Principles and the Restriction of Responsibility: Further Uncertainty in the Law? There has arguably been some development in the case law in more recent years that has sought to address the ability to gain redress for breaches of human rights that involves actors other than states. Following the Behrami case and a number of other cases that led to such a concerning lack of redress, there has more recently been action within the courts to try to interpret the law to enable redress. While this shows some positive movement, in terms of the ability to determine redress for rights breaches, the fact remains that such redress has had to be developed within the existing principles. This means determining responsibility in a manner that continues to focus upon a unitary conception of action rather than being fully able to embrace the pluralist nature of action dominant at the global level. The main cases that must be considered in this context is that of Nuhanovic and Mustafic as well as the Mothers of Srebrenica both of which came before Dutch courts and sought to address the potential responsibility of the Dutch state for injuries arising out of the massacre at Srebrenica.40 Both lines of case law dealt with the same basic facts in terms of a un mandated operation that was being staffed by personnel provided by the Netherlands. In questioning where responsibility lay, the courts sought to engage in the effective control test and, from this, to question the relationship and the interaction of the actors involved. In doing so the courts sought to address more explicitly the interaction of various actors and to recognise the nature of the international

39 40

Ibid, Art 62, 95–99. Nuhanovic (n 27); Netherlands (Ministry of Defence and Ministry of Foreign Affairs) v Mustafic, Final appeal judgment, CLI/NL/HR/2013/BZ9228, 12/03329, Supreme Court, 6 Sept 2013; Mothers of Srebrenica (n 27).

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activity. The limitations of the international system as a whole became apparent in these discussions. Equally, difficulties in developing principles that appropriately address such activity surfaced. In both lines of case law, however, the courts were able to reason the control test in such a manner as to enable some form of responsibility and some sort of redress. When considering the standard understanding of the effective control test, this reasoning remains highly questionable, as the ability to determine control on the part of either the un or the Netherlands seemed unlikely in the remit of a standard peacekeeping operation. In order to get some form of redress, the courts utilised the principles of dual attribution in order to develop its innovative approach.41 In focusing on this idea of ‘dual attribution’, the courts showed an acceptance of the idea that the same actions could be attributed to more than one actor, which seems to contradict with the basic idea of the effective control test and attribution. As a consequence of engaging with this idea of dual attribution, in the Nuhanovic case, the Court of Appeal considered the actions at hand and determined that there was a ‘transition period’ in which control was exercised by both the un and the Netherlands.42 In reasoning in this manner, the Court then simply focused on whether the Netherlands exercised effective control for its own part in this ‘transition period’.43 This was answered in the affirmative and therefore the responsibility could be established. The Supreme Court then affirmed the reasoning on attribution.44 In a similar manner, in the Mothers of Srebrenica case, the Court became even more explicit and considered that, as dual attribution was a possibility, it did not matter if action could also be attributed to the un. If action could be attributed to the Netherlands then any involvement of the un could simply be discounted and would not affect the case.45 When considering the basic concept of effective control, the idea of being able to discount the actions of an actor which might be exercising some form of control should simply not be feasible. The high level of control traditionally required by effective control is called into question by this interpretation. Control exercised by another actor should prevent a determination of attribution. This is one of the core difficulties of this test; it is constructed in a manner that cannot address multiple actors. 41

Nuhanovic v the Netherlands Court of Appeal Judgment, 265615/HA ZA 06-1671, 5 July 2011, 5.18-5.19 and 5.9; Nuhanovic (n 27) 3.11.2-3.11.3. 42 Ibid. 43 Nuhanovic (n 41) 5.18-5.19 and 5.9; Nuhanovic (n 27) 3.11.2-3.11.3. 44 Nuhanovic (n 27) 3.11.2-3.11.3. 45 Mothers of Srebrenica (n 27) 4.44-4.60.

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While the case law discussed above shows some positive moves in terms of its ability to determine redress for breaches of rights, the uncertainty in the meaning of the principles leaves such a development in an uncertain position. Dual attribution exists as an exception to the basic principles of responsibility. The cases show that the courts by seeking to make the best of the principles as they currently exist often contradict the basic ideas behind these principles. The limitations of the basic principles continue to prove problematic in their application beyond the state. While this exception has seen some application and provided a method of enabling redress, its limitations continue to show the weaknesses that sit at the very core of the law of responsibility. As such, while this case law did show a positive outcome, it is argued that the principle of dual attribution could only ever work as an exception within this area. To go beyond this would only create further uncertainty in the basis of the law. The situation is not a comfortable one, with dual attribution being an unhappy, ad hoc exception, whose application could lead to further uncertainty. These concerns only grow when the difficulties in relying upon domestic judicial systems are considered, as the ability to do so for individual victims of human rights violations varies considerably. The lack of enforcement mechanisms by and against institutional frameworks only reinforces these difficulties. This further upholds the mismatch between the principles being centred on the concept of binary action and the reality now being substantially pluralist. iv Conclusion The law of responsibility has been continually grounded in the concept of the sovereign state and the basic nature of bilateral action. As the case law developed in an early fashion, it could clearly be seen that there was a disconnection between the structure and concept of the principles and the structure and concept now in existence at the global level. The global order has evolved far beyond the basic Westphalian concept but as the system has evolved, the law has not evolved in line with this; the law continues to be structured in response to the state and not in response to other actors. Not only can it be said that the basic principles fail to engage with the nature of actors beyond the state, there are further problems within the system that can prevent issues even getting to the stage of judicial proceedings. The principle of immunity is a most concerning aspect in this regard. There have been a number of questionable incidents involving, in particular, the un where no action has been taken because the principle of immunity was invoked by the organisation. It must therefore be questioned whether much of the discussion

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on the difficulties with the law of responsibility remains a largely theoretical one as, even if the problematic approach within this area of law was addressed, the un, at least, could claim immunity and no redress would be available to victims. The very reason for developing such a principle of immunity again returns to the traditional conception of the international order and fails to conceive of the un as a comprehensive international actor. It was considered that immunity needed to be developed as a principle to enable the un to act in a manner akin to a diplomatic division within a state. Any judicial fora in relation to institutional frameworks also often remain highly limited in what they are able to legitimately consider. The judicial fora that do exist internationally still remain heavily focused upon the state as the dominant international actor and very few even conceive of the possibility of other actors being able to engage in such a system. With the eu, for example, it may have a highly developed judicial system, but the ability to gain access to the judicial system is highly limited. The development of regional human rights institutions and judicial frameworks may have shown some progress in recent years but they all remain, however, heavily focused around the state. Even when considering the European Convention on Human Rights (echr), which the eu has committed to accede to, in order for this to happen, the Treaty required an amendment and a particular accession agreement between the eu and the Council of Europe needed to be concluded46 before this could be contemplated because the framework could not conceive of a non-state actor as a party to the Convention. It may now be quite clear that the global order has evolved far beyond its origins, but the legal framework remains highly limited in its ability to address actions that go beyond such origins. When considering the extent to which actors such as organisations now find themselves engaged at the international level, such a limitation in the framework leaves the law in a difficult position. As it currently stands, the law of responsibility creates a potential gap in the ability to gain redress for any breaches of norms involving institutional frameworks, including in particular breaches of human rights norms. The power of 46

Opinion 2/94, Opinion of the Court on Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ecr I-1759; Article 6(2) teu; Draft Agreement Providing for the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms in Fifth Negotiation Meeting between the cddh ad hoc Negotiation Group and the European Commission on the Accession of the European Union to the echr, Final Report to the cddh, 10 June 2013, 47+1(2013)008rev2; Opinion 2/13 on eu Accession to the echr: C:2014:2454.

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institutions is continuing to expand but without the accompanying redress mechanisms. With globalisation only further expanding and the international system continuing to develop, institutions in particular are becoming more active. From this the issues with the law of responsibility are only likely to become further pronounced. The very principles that should exist to constrain such power simply are not responsive to these growing actors. The only solution that would fully address weaknesses in the law though would be to redevelop it to fully respond to the pluralism of the international system. This is clearly unlikely as things stand. The best that can be hoped for is that the current principles will adjust to apply as appropriately as possible and that exceptions, such as dual attribution, can occasionally be utilised to enable redress to be gained. Bibliography Ago, Roberto, Report of the Chairman of the Sub-Committee on State Responsibility, 16 Jan 1963, A/CN.4/152, in Yearbook of the International Law Commission 1963, Vol II, 227, A/CN.4/SER.A/1963/Add.1, 234. Ago, Roberto, Special Rapporteur, Third Report on State Responsibility, A/CN.4/246 and Add.1-3 (F) in Yearbook of the International Law Commission 1971, Vol II(1) 199. Bogdandy, Armin von ‘Pluralism, Direct Effect and the Ultimate Say: On the Relationship Between International and Domestic Constitutional Law’, (2008) 6 International Journal of Constitutional Law 397. Brölmann, Catherine, The Institutional Veil in Public International Law. International Organisations and the Law of Treaties (Oxford: Hart, 2007). Cohen, Jean L., ‘Sovereignty in the Context of Globalization: A Constitutional Pluralist Perspective’, in Samantha Besson and J. Tasioulas (eds) The Philosophy of International Law (Oxford: Oxford University Press, 2010) 261. El-Erian, Abdullah, Special Rapporteur, First Report on Relations Between States and Inter-Governmental Organizations, A/CN.4/161 and Add.1, in Yearbook of the International Law Commission 1963, vol II, A/CN.4/SER.A/1963/ADD.1, 159. Exchange of Letters Constituting an Agreement Relating to the Settlement of Claims Filed against the United Nations in the Congo by Belgian Nationals, New York, 20 Feb 1965, no 7780 (1965) Recueil des Traités 198. García Amador, Francisco V., Special Rapporteur, Report on International Responsibility, A/CN.4/96, in Yearbook of the International Law Commission 1956, Vol II, 173. Kent, Vanessa L., ‘Peacekeepers as Perpetrators of Abuse. Examining the UN’s Plans to Eliminate and Address Cases of Sexual Exploitation and Abuse in Peacekeeping Operations’ (2005) 14 African Security Review 85.

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Krisch, Nico, ‘The Case for Pluralism in Postnational Law’, LSE Working Papers 12/2009 (2009). Larsen, Kjetil M., ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’ (2008) EJIL 509. Milanovic, Marco and Papic, Tatjana, ‘As Bad as it Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General international Law’ (2009) 58 International Comparative law Review 267. Opinion 2/13 on EU Accession to the to the European Convention for the Protection of Human Rights and Fundamental Freedoms: C:2014:2454, European Court of Justice, 18 Dec 2014. Opinion 2/94 on Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, European Court of Justice, 28 March 1996. Pellet, Alain, ‘The Definition of Responsibility in International Law’, in James Crawford, Alain Pellet and S. Olleson (eds) The Law of International Responsibility (Oxford: Oxford University Press, 2010) 3. Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol.II(2), 25 (2007). Report of the ILC, 61st Session, 2009, GA Official Records, 64th session, Suppl No 10, UN Doc A/64/10. Rosenfeld, Michel, ‘Is Global Constitutionalism Meaningful or Desirable?’ (2014) 25 EJIL 177. Singh, Nagendra, Termination of Membership of International Organisations (London: Stevens and Sons, 1958). Tamanaha, Brian Z., ‘Understanding Legal Pluralism: Past to Present, Local to Global.’ (2008) 30 Sydney Law Review 375. Ullman, Walter, The Medieval Ideal of Law (London: Barnes and Noble, 1969). Wet, Erika de, ‘The Constitutionalization of Public International Law’, Michel Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 1209.

chapter 7

The Gradual Normative Shift from ‘Veto as a Right’ to ‘Veto as a Responsibility’: The Suez Crisis, the Syrian Conflict, and un Reform Nao Seoka Abstract This chapter examines the normative development of the veto system based on two fundamental rationales: ‘veto as a right’ and ‘veto as a responsibility.’ It argues that while Article 27 (3) of the Charter was originally introduced based on these two rationales in 1945, the un member states have made continuous efforts to produce a gradual normative shift from ‘veto as a right’ to ‘veto as a responsibility.’ This chapter consists of three main parts. First, it critically reviews the drafting history related to veto power and clarifies its two fundamental rationales. Second, it examines how the balance between the two fundamental rationales was recognized during the Cold War. In so doing, it seeks to apply these rationales to the British and French vetoes in the Suez Crisis (1956) as a classic inter-state conflict, which served as an important precedent for future veto reform. Finally, this chapter examines how the balance between ‘veto as a right’ and ‘veto as a responsibility’ has gradually shifted since the end of the Cold War. It looks at the Chinese and Russian vetoes in the Syrian case (2011~) as a salient intra-state conflict involving mass atrocities, which impelled many member states to move toward the recent veto-restraint proposals. This chapter shows that their recent inclination to adhere to the ‘veto as a responsibility’ rationale allows the Security Council to work in a timely and decisive manner to achieve the evolving un purposes and principles in the 21st century.

* Kindai University, Lecturer, Faculty of International Studies. I would like to express my gratitude to Yahyaoui Ekaterina, Nisuke Ando, and Akira Mayama for their valuable comments on an earlier draft of this article. All the remaining errors are mine. This article was supported by Grand-in-Aid for jsps Fellows.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_009

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Keywords veto as a right – veto as a responsibility – the Suez Crisis – the Syrian Case – Responsibility to Protect – Responsibility while protecting – regime change – humanitarian intervention – the act Group



Introduction

This chapter examines how the veto system was originally introduced into the un Charter based on two fundamental rationales (‘veto as a right’ and ‘veto as a responsibility’) and how their relationship has been gradually developing since the founding of the un. The Security Council bears the primary responsibility for the maintenance of international peace and security in the un collective security system, and the five permanent members of the un Security Council (hereafter the P5) are granted veto power under the un Charter to be used by any of them to obstruct the passage of resolutions for which there is otherwise majority support. To date, many scholars have tended to tolerate the threat or use of vetoes on substantial matters, which is consistent with a literal interpretation of Article 27, paragraph 3, of the Charter.1 However, it is important to remember that since the establishment of the un, a significant number of member states have frequently made proposals on veto restraint. In 2001, for instance, France proposed a ‘code of conduct’ requiring that the P5 voluntarily refrain from the use of veto especially in cases of humanitarian crisis such as the Kosovo case in 1999.2 More recently, three major initiatives on veto restraint in cases of mass atrocity have been developed against the backdrop of the deteriorating situation in Syria: a French-Mexican initiative; the Accountability, Coherence and Transparency Group (act) initiative; and a reform proposal by the Elders.3 As of 17 March 2017, 93 states have 1 See, e.g., Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (New York: Frederick A. Praeger, 1950) 265; Philippa Webb, ‘Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria’ (2014) 19 Journal of Conflict & Security Law 486. 2 The International Commission on Intervention and State Sovereignty (iciss), The Responsibility to Protect: Research, Bibliography, Background (Ottawa: The International Development Research Center, 2001) 379. 3 For these initiatives, see, Security Council Report, The Veto (2015) No 3, 5–6, http://www .securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/re search_report_3_the_veto_2015.pdf (last visited 17 Apr 2017).

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supported the French-Mexican ‘political statement on the suspension of the veto in case of mass atrocities’ and also 110 states including the uk and France have signed the act Group’s ‘Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes’.4 Given this tension, and the unlikely prospect of formal amendment of the un Charter under Article 108, it is essential to scrutinise to what extent the use of veto has been justified by the un purposes and principles, with particular emphasis on the fundamental rationale of the veto power, member states’ statements, and their voting patterns in the Security Council.5 This is all the more important under the contemporary condition of globalisation because the Security Council measures have been significantly diversified, thus having a huge impact not only on the un member states, but also on the individuals per se especially in case of serious violations of human rights. This paper is divided into three parts. First, it critically reviews the drafting history related to veto power and clarifies its two fundamental rationales (‘veto as a right’ and ‘veto as a responsibility’). Second, it examines how the balance between the two fundamental rationales was recognized during the Cold War. In so doing, it seeks to apply these rationales to the British and French vetoes in the Suez Crisis (1956) as a classic inter-state conflict, which appears to serve as an important precedent for future veto reform. Third, it examines how the balance between ‘veto as a right’ and ‘veto as a responsibility’ has been gradually shifting since the end of the Cold War. In particular, it carefully analyses the Chinese and Russian vetoes in the Syrian case (2011~) as a salient intrastate conflict involving mass atrocities, with which the recent veto-restraint proposals have been greatly concerned. In conclusion, this article argues that while Article 27 (3) of the Charter was introduced based on the two fundamental rationales in 1945, the un member states have made continued efforts, no matter how rudimentary they may seem, to produce a gradual normative shift from ‘veto as a right’ to ‘veto as a responsibility. ’ It explores the implications of such a shift, lending to the ability of the Security Council to work in a timely and decisive manner to achieve the evolving un purposes and principles in the 21st century. 4 See, Global Centre for the Responsibility to Protect, un Security Council Code of Conduct, http://www.globalr2p.org/our_work/un_security_council_code_of_conduct (last visited 17 Apr 2017). 5 Nao Seoka, The Implications and Limitations of the Veto Power in the United Nations: A ­Critical Review of the Practice from its Birth to the Suez Crisis (Tokyo: Shinzansha Publisher, 2012) 174– 177 (in Japanese).

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Drafting History of the Veto Power: Two Fundamental Rationales

A close examination of the drafting history of the un Charter demonstrates that there are two fundamental rationales underlying the veto system under Article 27 (3) of the Charter: the protection of the P5’s vital interests (‘veto as a right’) and the P5’s special responsibility for the maintenance of international peace and security (‘veto as a responsibility’). The Protection of the P5’s Vital Interests (‘Veto as a Right’) The veto power is a privilege to block any draft resolutions on substantial matters in situations where any of the P5 members perceives its vital interests to be at stake (‘veto as a right’). When us President F.D. Roosevelt, British Prime Minister W. Churchill, and Soviet General J. Stalin discussed the veto power at the Yalta Conference in February 1945, their primary concern was whether they could use their vetoes to block Council measures in disputes where they perceived that their narrowly defined national interests were directly endangered, such as in the Suez conflict, the Hong Kong dispute, the renewed German aggression, the Soviet-Finland War, and the us–Argentina conflict.6 Moreover, at the San Francisco Conference in May 1945, the uk emphasised the harsh reality that the application of sanctions against any of the P5 members could mean, in most cases, not the maintenance of peace, but the beginning of world war, potentially resulting in the collapse of the un.7 These concerns of the major states reveal their understanding that one of the fundamental rationales of the veto system was to prevent the Security Council from taking actions contrary to their respective perceived vital interests. It became increasingly evident that the P5 would never join the un without the privilege of veto, leading the remaining states to face the acute dilemma characterised by the tension between ‘the un including the P5 with veto power’ and ‘the un with no veto but without the membership of the P5.’ They had no choice but to accept the former option, realising that achieving universality in the un should be the highest priority, due to the lessons of the League of Nations. Thus, the veto system was the price for obtaining the

6 Foreign Relations of the United States (frus), The Conference at Malta and Yalta 1945 (Washington: United States Government Printing Office, 1955) 660–667. 7 Documents of the un Conference on International Organization (uncio), San Francisco, 1945 (New York: W.S. Hein, 1998) Vol xi, 322.

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­ embership of the P5, each of which regarded its veto right as indispensable m for protecting its own vital interests and preventing wwiii.8 The P5’s Special Responsibility (‘Veto as a Responsibility’) The ‘veto as a right’ dimension itself was recognised, somewhat paradoxically, only to the extent that it would, due to the P5’s great power and influence, contribute greatly to the interests of the un as a whole, that is, the universality of un membership and the prevention of wwiii, among others. Thus, it is reasonable to assume that the ‘veto as a right’ rationale, as such, would not be recognised unless it has the essential dimension of contributing significantly to the interests of the un as a whole, which would be gradually evolving.9 Furthermore, smaller states demanded that the use of veto would not be ­justifiable unless the following three requirements were fulfilled: first, in exchange for the veto privilege, the P5 should bear special responsibility for such serious matters as the maintenance of international peace and security;10 second, the P5 must exercise veto power in moderation, to contribute to the common interests of the international community relating to peace, self-­ determination, and human rights;11 and third, the veto system should be revised in the near future, depending on the shifting power balance among the un member states.12 These requirements were explicitly demanded not only by the states that abstained from voting on the draft of Article 27 (3), but also by those that voted in favour.13 Notably, the P5 themselves also pledged that these requirements were a prerequisite for their veto privileges to be incorporated into the un

8 9

10 11 12

13

Seoka (n 5) 34–46. It should be noted that Committee I adopted the report on the right of withdrawal by member states. uncio (n 7) Vol vii, 266–267. See, Nicholas Tsagourias, ‘Whither the Veto: The Responsibility to Protect and the Security Council Veto’, in Vasilka Sancin and Masa K. Dine (eds) Responsibility to Protect in Theory and Practice (Ljubljana: GV Zalozba, 2013) 166–167. See, e.g., Turkey (uncio (n 7) Vol xi, 473–474), Yugoslavia (Ibid, 350–351), South Africa (Ibid, 352). See, e.g., Australia (uncio (n 7) Vol xi, 434), Mexico (Ibid, 474–475), Canada (Ibid, 459), Turkey (Ibid, 473–474), Venezuela (Ibid, 488), Iraq (Ibid). See, e.g., Australia (uncio (n 7) Vol xi, 440, 492), Chile (Ibid, 488), Peru (Ibid, 457, 517), Egypt (Ibid, 491, 518), India (Ibid, 489), Argentina (Ibid, 473, 528), Philippines (Ibid, 487), Uruguay (Ibid, 488). Para 3 of Art 27 was adopted with 30 affirmative and 2 negative votes, 15 abstentions, and 3 absences. Art 27 as a whole was then adopted with 25 affirmative and 2 negative votes, 20 abstentions, and 3 absences.

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Charter.14 Thus, this pledge represented their verbal commitments to future behaviour that could prove costly to them.15 Interestingly, under the procedures of the San Francisco Conference, this arrangement itself would not have been adopted without the majority vote. This means that the P5’s pledges on the requirements were seen as essential for the smaller states, without which Article 27 (3) would never have been adopted. As such, this dimension should be understood as ‘veto as a responsibility, ’ the second fundamental rationale of the veto system. Importantly, the term ‘responsibility’ does not mean legal responsibility that arises from an internationally wrongful act of a state, as there was a wide consensus at the San Francisco Conference that the P5 would not bear a fullfledged legal obligation to refrain from the use of veto on substantial matters. Thus, the ‘veto as a responsibility’ implies that the P5 should commit themselves – not as a precise legal rule, but as a guideline or a code of conduct – to their pledges indicated above in exercising their veto power.16 The Relationship between the Two Fundamental Rationales The drafting history of the veto clause shows that these two fundamental rationales are inextricably intertwined as two sides of the same coin,17 indicating 14

15 16

17

See, Statement by the Delegations of the Four Sponsoring Governments on Voting Procedure in the Security Council, uncio (n 7) Vol xi, 713, the us (Ibid, 131–132, 493), the uk (Ibid, 436, 475), the Soviet Union (Ibid, 434), France (Ibid, 456–457). Ian Hurd, After Anarchy – Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2007) 83–110. Seoka (n 5) 91–93. A question can be raised whether the act of the P5’s use of veto is attributable to the P5 themselves or to the Security Council under Draft Articles on the Responsibility of International Organizations (dario). However, dario, which covers legal responsibility for internationally wrongful acts, is not, strictly speaking, applicable to the issue of ‘veto as a responsibility’ dimension, because this dimension was introduced not as a precise legal rule but as a guideline or a code of conduct. Thus, this article focuses on the question if and to what extent the P5 have committed themselves to their pledges under the ‘veto as a responsibility’ dimension, without touching upon the issue of attribution under dario. Interestingly, some scholars have recently argued the possibility of legal consequences of the P5’s veto in mass atrocity situations by examining the issue of attribution. See, e.g., Anne Peters, ‘The Responsibility to Protect and the Permanent Five: The Obligation to Give Reasons for a Veto’, in Julia Hoffmann and Andre Nollkaemper (eds) Responsibility to Protect: From Principle to Practice (Amsterdam: Pallas Publications, 2012) 205–207. Kishore Mahbubani, ‘The Permanent and Elected Council Members’, in David Malone (ed) The un Security Council: From the Cold War to the 21st Century, (London: Lynne Rienner Publishers, 2004) 262.

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that whenever a P5 member decides to cast a veto in a given case to defend its vital national interests, it must bear special responsibility for achieving the un purposes and principles, and the veto thus must have the essential dimension of contributing significantly to the interests of the un as a whole. Most importantly, the relationship between the two rationales can be either complementary or contradictory, depending mainly, if not exclusively, on the power balance between the P5 and the other un member states as well as on the evolving un purposes and principles. This relationship can be complementary when any of the P5 exerts, as an important party to a dispute, its considerable or even rising power and influence so greatly that its justification to protect its perceived vital interests under the ‘veto as a right’ dimension can be seen as being tolerable from the ‘veto as a responsibility’ dimension as well; in this case, its use of veto can be regarded as a contribution to the interests of the un as a whole because it could be thought to serve as a ‘fuse’18 to block Council measures that would otherwise result in the collapse of the un. On the other hand, the relationship between ‘veto as a right’ and ‘veto as a responsibility’ can be contradictory when any of the P5, as a third party to a dispute, cannot exert its special military and economic capabilities so effectively to resolve a dispute in question that its justification for veto power in terms of safeguarding its perceived vital interests can be seen as being arbitrary from the ‘veto as a responsibility’ perspective. The reason is that, due to a shift in the balance of power among the member states and the evolution of the un purposes and principles, among others, its use of veto power can hardly contribute to the interests of the un as a whole concerning the maintenance of peace and security, the right of self-determination, and the protection of fundamental human rights. Here, there is a gap between the ‘veto as a right’ and the ‘veto as a responsibility’ dimensions, meaning that the P5 fails to bear their ‘special’ responsibility for contributing to the development of the un purposes and principles without consciously attempting to bridge the gap between the two rationales: the P5 members cannot and should not use veto power to protect their own interests in such a manner as to clearly constitute an infringement on the gradually evolving un purposes and principles. Given this theoretical understanding, how has the balance between the two fundamental rationales actually been interpreted by the member states in light of the un purposes and principles?

18

Inis L. Claude, Jr, Swords into Plowshares – The Problems and Progress of International Organization, 4th ed (New York: Random House, 1971) 156.

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The Precarious Balance between ‘Veto as a Right’ and ‘Veto as a Responsibility’ during the Cold War

The Complementary Relationship between the Two Rationales The P5, especially the us and the former Soviet Union, often exercised their veto power during the Cold War, which was a unique era in the sense that international peace and security was maintained mainly by the ‘balance of terror’, which relied on nuclear deterrence.19 These key political and military considerations reminded the un members of the implications of the ‘veto as a right’ dimension, and the P5’s justifications in many cases also tended to be considered as tolerable, if not convincing, from the viewpoint of the ‘veto as a responsibility’ dimension, because the veto system arguably served a useful function as a ‘fuse’ to avoid the outbreak of wwiii and collapse of the un. Thus, in general, it is plausible to say that, during the Cold War, the two fundamental rationales were viewed, in a rough sense, as two sides of the same coin. The Attempts to Restrict the Use of Veto in the Early Period of the un However, that does not mean that the un member states did not attempt to restrict the frequent use of the veto power during the Cold War. For instance, responding to the frequent vetoes by the Soviet Union relating to peace and security,20 the General Assembly held deliberations on the veto restriction for the first five years after the un’s creation. Most notably, the four Western permanent members submitted a draft resolution based on the British ‘gentleman’s agreement’ proposal on veto restraint.21 This later became General Assembly Resolution 267 (iii), which can be viewed as the dynamic interpretation of the ‘veto as a responsibility’ dimension:22 [T]o avoid impairment of the usefulness and prestige of the Council through excessive use of the veto, (the General Assembly recommended that) [i]f there is not unanimity, (the P5 members) exercise the veto only when they consider the question of vital importance, taking into account 19 20 21 22

Paul G. Lauren, Gordon A. Craig, and Alexander L. George, Force and Statecraft: Diplomatic Challenges of Our Time, 5th ed (Oxford: Oxford University Press, 2014) 101. Because of limited space, this chapter will not cover the Soviet vetoes on membership issues during this period. un, Official Records of the Second Session of the General Assembly, First Committee, 1947, 495. un General Assembly, The Problem of Voting in the Security Council, un Doc A/ Res/267(III), 14 April 1949.

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the interest of the United Nations as a whole, and state upon what ground they consider this condition to be present.23 The General Assembly’s continued attempts to limit the excessive use of veto were greatly advanced by the adoption of Resolution 377 (v) (the ‘Uniting for Peace’ resolution) on 3 November 1950, during the Korean War. This was an initiative taken by the us to circumvent Soviet vetoes in the context of the Cold War. This resolution emphasised, in its preamble, the ‘veto as a responsibility’ dimension, by [r]eaffirming … the duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto. (It also provided that) if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures.24 The Soviet Union insisted that the resolution was in flagrant violation of Articles 11(2) and 24 of the Charter, emphasising the Security Council’s primary responsibility for the maintenance of international peace and security.25 In spite of disagreements among the un member states over the constitutionality of the ‘Uniting for Peace’ resolution, it has been applied to several cases in evolutionary ways, based on the dynamic interpretation of the ‘veto as a responsibility’ dimension under the un Charter. Indeed, contrary to the us’s original intentions, it was in response to the British and French vetoes in the Suez Crisis that the un member states convened the very first Emergency Special Session based on the ‘Uniting for Peace’ resolution. Equally, the Eastern states led by the Soviet Union did accept its application to the Suez Crisis, thereby weakening their previous positions on strict adherence to the unanimity principle among the P5 in the Security Council.26

23 24 25 26

Ibid, para 3 (c). See also un General Assembly, Essentials of Peace, un Doc A/Res/290 (iv), 1 Dec 1949, para 10. un General Assembly, Uniting for Peace, un Doc A/Res/377 (v), 3 Nov 1950. un General Assembly, First Committee, 357th meeting, un Doc A/C.1/SR.357, 10 Oct 1950, 80–86. Seoka (n 5) 118–138.

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The Suez Crisis (1956): The Evolutionary Interpretation of the Relationship between ‘Veto as a Right’ and ‘Veto as a Responsibility’ On 26 July 1956, Egyptian President Gamal Abdel Nasser announced the nationalisation of the Suez Canal Company of which the uk and France were two large shareholders. This announcement threatened their national interests, and led them to develop secret plans with Israel: Israel would attack Egypt, which had been sending guerrillas across the Israeli border, and then the uk and France would intervene to restore peace, occupying the Suez Canal. As planned, Israel launched an attack on Egypt across the Sinai Peninsula on October 29. On the same day, the British and French Governments addressed a joint ultimatum to Egypt and Israel, calling on both sides to cease hostilities and withdraw their forces from the Canal. The ultimatum was accepted by Israel, whose troops in any case were still far from the Canal, but it was rejected by Egypt. The Security Council held a meeting on October 30 at the request of the us, which submitted a draft resolution calling ‘upon Israel immediately to withdraw its armed forces behind the established armistice lines’ and demanding ‘all members to refrain from the use of force or threat of force in the area in any manner inconsistent with the Purposes of the United Nations.’27 Not only this draft but also a similar one sponsored by the Soviet Union28 was vetoed by the uk and France. On 31 October, the two states launched attacks against Egypt. The matter was immediately transferred to the General Assembly in accordance with the procedure set forth in the ‘Uniting for Peace’ resolution, and its first Emergency Special Session was convened on 1 Nov 1956.29 The General Assembly adopted a series of resolutions dispatching the First United Nations Emergency Force (unef i), and Israel, the uk, and France finally withdrew from the Canal.30



The British and French Failure to Bear their Special Responsibility for Achieving the un Purposes and Principles The factual background shows that the uk and France used their vetoes to protect, at all costs, their strategically and economically vital interests on the Suez Canal, and they justified their vetoes by arguing that they needed to station

27 28 29 30

un Security Council, un Doc S/3710, 30 Oct 1956. un Security Council, un Doc S/3713/Rev.1, 30 Oct 1956. un Security Council, un Doc S/Res/119, 31 Oct 1956. un General Assembly, un Doc A/Res/998 (es-i), 4 Nov 1956; un General Assembly, un Doc A/Res/1000 (es-i), 5 Nov 1956.

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troops temporarily on the Canal for the purpose of separating the belligerents and ensuring the safety of shipping.31 Focusing on the dimension of ‘veto as a right’, it is possible to argue that the two veto-wielders did use their vetoes at their own discretion, as they perceived their vital interests to be at stake. Yet, a closer look at Council deliberations reveals that many, if not most, member states recognised that there was a huge gap between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions in their use of vetoes and that the two veto-wielders failed to bear their ‘special responsibility’32 to take into serious consideration the interest of the un as a whole. In this regard, the following two points should be noted. First, the primary aims of the two draft resolutions sponsored by the us and the Soviet Union respectively were consistent with the alleged purposes of the British and French temporal police action. However, the uk and France not only vetoed the draft resolutions, but also conducted, with Israel, military intervention in Egypt to pursue what can be called a blatant 19th century colonial policy, which could have even potentially escalated into a nuclear war involving the us and the Soviet Union.33 Second, almost all the member states realised that the British–French military action was a conspiracy with Israel, and a flagrant violation of the un Charter, including the non-use of force principle under Article 2 (4).34 They also argued that it constituted a threat to the peace, a breach of the peace or an act of aggression under Chapter 7 of the Charter, which led them to invoke the ‘Uniting for Peace’ resolution in an expeditious manner.35 Taken together, the Suez Crisis can serve as a significant precedent for the successful application of the ‘Uniting for Peace’ resolution ‘in order to ensure prompt and effective action by the United Nations’,36 by which the un collective security system prevented the inter-state armed conflict from deteriorating in response to the abusive use of vetoes by the uk and France. 31 The uk (un Security Council Official Records, S/PV.750, 11). All documents starting with S/PV are minutes of Security Council meetings while ones with A/PV are minutes of General Assembly meetings; the number after S/PV or A/PV is the number of the meeting. 32 See, e.g., Peru (S/PV.748, 9), Iran (S/PV.750, 13), Czechoslovakia (A/PV.562, 42), Lebanon (A/PV.563, 59), El Salvador (ibid, 8), India (A/PV.567, 119), Ecuador (A/PV.562, 25). As for the statements on the abusive use of veto power, see, Iraq (A/PV.561, 49; A/PV.567, 105), Lebanon (A/PV.563, 60). 33 frus (n 6) 1956, xvi, 994. 34 See, e.g., Columbia (A/PV.562, 15), Syria (Ibid, 16), Greece (Ibid, 37). 35 See, e.g., the us (S/PV.748, 2), Yugoslavia (Ibid, 4), the Soviet Union (S/PV.750, 6–7), Philippines (A/PV.563, 50). 36 Art 24 un Charter.

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The Implications of the Suez Crisis It may be true that the strong consensus regarding the total failure of the uk and France to bear their special responsibility would not have reached among the un member states so quickly and clearly without the unique political factor that existed, that is, the strange alliance between the us and the Soviet Union in the Security Council. At that time, with the gradual globalisation of the Cold War to the Middle East, Asia, and Africa, the us and the Soviet Union advanced their own national interests respectively, to win allies among the newly independent states. This confrontation of their sphere of influence in the Middle East led to the us’s vote in favour of the ‘Uniting for Peace’ resolution, leaving the two closest Western allies isolated on one hand, and the Soviet’s vote in favour of the ‘Uniting for Peace’ resolution, suggesting its reconsideration of the previous position on the strict adherence to the unanimity principle among the P5, on the other. ‘This was the first and only time that the United States was to vote with the Soviet Union against its closest allies.’37 However, the inherent uniqueness of the Suez Crisis should not be overestimated, for there had been a changing interpretation of the un purposes and principles ever since 1945, which had huge impacts on both the P5 and the other member states. Without the changing interpretation of the un purposes on the right to self-determination of people under Article 1 (2) of the Charter through the continuous decolonisation movement, especially since the end of wwii, the smaller states could not have built a clear consensus on the illegitimate nature of the British and French vetoes based on the huge gap between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions in such a timely and decisive manner. Significantly, there had been a gradual change in the global constellation of power due to the decolonisation movement. Asian and African states had slowly but surely gained power in the un as the so-called non-aligned group, which did not belong to either the West or the East. This structural change had a profound impact on Council’s deliberations. For instance, the initiative of Yugoslavia, seen as a leader of the non-aligned movement, made the Security Council advance towards convening the first Emergency Special Session in accordance with procedures of the ‘Uniting for Peace’ resolution.38 As for the P5 members, they also felt compelled to consider these normative changes since the un’s creation. The us and the Soviet Union would not have responded so decisively against the joint vetoes without the ‘Uniting for Peace’ 37 38

Henry Kissinger, Diplomacy (New York: Simon & Schuster Paperbacks, 1994) 542. un Security Council, Letter dated 30 October 1956 from the Representative of Egypt addressed to the President of the Security Council, Yugoslavia: draft resolution, un Doc, S/3719, 31 Oct 1956.

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resolution and pressure from the decolonisation movement.39 On the other hand, this movement had significant impacts on how the uk and France recognised the relationship between ‘veto as a right’ and ‘veto as a responsibility.’ At the Yalta Conference, W. Churchill had referred to the Suez question as a typical case where the uk would be entitled to use veto power to protect its vital interest, emphasising the complementary relationship between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions as two sides of the same coin, but it turned out in the Suez Crisis that the un member states were highly critical of the vetoes, with particular emphasis on the widening gap between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions. This major difference in views of the nature of veto power shows that the uk and France had been increasingly forced to consider the growing political costs of justifying their vetoes in ways that infringe the right to self-determination of people under Article 1 (2) of the Charter.40 This analysis potentially set an important precedent for further discussion about un reform: while the use of veto relating to a certain issue used to be considered legitimate to protect the P5’s vital interests based on the complementary relationship between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions, it can no longer be consistent with evolving un purposes and principles in subsequent cases due to the widening gap between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions. In conclusion, the un responses to the Suez Crisis can be seen as a rare but important case during the Cold War that shows the contradictory relationship between the two fundamental rationales of veto power, thereby, leading to further discussion on un reform with a view to the gradual normative shift from ‘veto as a right’ to ‘veto as a responsibility’ in light of evolving un purposes and principles.41 III

The Shifting Balance from ‘Veto as a Right’ to ‘Veto as a Responsibility’ after the End of the Cold War

Since the end of the Cold War and with the gradual advance of globalisation, the gap between ‘veto as a right’ and ‘veto as a responsibility’ has become 39 40

41

As for their other considerations such as the Hungarian Revolution in 1956, see, frus (n 6) 1956, xvi, 968–972, 1018. See, David Goldsworthy (ed) The Conservative Government and the End of Empire 1951– 1957, Part i International Relations (London: hmso, 1994) 171, para 2; Documents Diplomatiques Francais, 1956, Vol iii (Paris: Imprimerie Nationale, 1990) 205. Seoka (n 5) 146–153.

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i­ncreasingly evident. Indeed, the veto-wielders’ special responsibility towards the un member states for the maintenance of peace and security has increasingly come under close scrutiny, especially in the case of mass atrocities, due to the following three main considerations: the real possibility of nuclear war among the P5 has been greatly, if not completely, reduced; the concept of Responsibility to Protect (R2P) has emerged in response to large-scale human rights violations in many conflicts including Rwanda and Kosovo; and the structure of the Security Council has been more unrepresentative than ever before due to a considerable shift in power balance since 1945. These three major considerations have helped most, if not all, member states realise that the gap between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions has been getting wider than ever before. Hence, the extent to which the use of veto has served the interests of the un as a whole has seriously been questioned. In light of these considerations, this chapter examines the implications of the Chinese and Russian vetoes in the Syrian Conflict. The Syrian Conflict (2011~) This section analyses the Chinese and Russian vetoes in the on-going Syrian conflict, focusing on how evolutionary interpretations of the un Charter have had impacts on the Council’s deliberations with regard to the relationship between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions. There are two reasons for taking up Syria for examination: first, it is against the backdrop of the deteriorating situation in Syria that the recent initiatives on veto restraint in mass atrocity (a French-Mexican initiative, act initiative, a reform proposal by the Elders) have been developed; second, there is a sharp contrast between Libya and Syria in terms of Chinese and Russian voting behaviour, implications of which should be examined. While China and Russia refrained from vetoing Security Council Resolution 1973 authorising all necessary means to protect civilians in the case of Libya, they have jointly cast vetoes four times in the case of Syria. It is essential to analyse the meaning of their different responses to the similar humanitarian crises that stemmed from the 2011 Arab Uprisings. The Basic Positions of China and Russia The Syrian crisis broke out in March 2011 when Assad’s government cracked down on nationwide protesters demanding his resignation. Violence escalated, and the country descended into civil war between the Assad regime and several opposition groups. Since then, the Security Council has unanimously adopted several resolutions to the effect that an immediate end to the use of force and mass-atrocity crimes by all parties should be the first step towards

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the Syrian-led political transition to a democratic, plural political system.42 The Security Council has nevertheless failed to take effective measures to achieve this goal in a timely and decisive manner, even allowing the emergence and expansion of the ‘Islamic State’ in the Syrian territory. The Security Council’s failure has largely stemmed from a fundamental disagreement among the Council members about whether and how it should take enforcement measures to halt violence and crimes against humanity in situations where all the parties to the conflict have been unwilling to comply with a series of Council resolutions. For the purpose of this chapter, it is important to stress that China and Russia have exercised their vetoes against four draft resolutions since 2011,43 by arguing, among other things, that the dimension of threat of sanctions in some of them would be an infringement on the basic un principles of state sovereignty, territorial integrity, peaceful settlement of disputes, and non-intervention in other states, while at the same time, strongly criticising the overthrow of the Qaddafi regime by nato-led intervention based on Security Council Resolution 1973 in March 2011.44 Their justifications were consistent with their traditional foreign policy, based mainly on the notion of ‘sovereignty as a right’ rather than ‘sovereignty as a responsibility’, and thereby aimed at what can be called ‘state-oriented’ peace. At this point, a question should be raised: whether and to what extent are their joint vetoes against the draft resolutions imposing sanctions or the threat thereof consistent with the evolving purposes and principles under the un Charter, judging from the two fundamental rationales of veto power?

The Chinese and Russian Vital Interests: The ‘Veto as a Right’ Dimension How have China and Russia seen their own vital national interests with respect to the Syrian conflict? A closer examination of their statements on the vetoed 42

43

44

See, e.g., un Security Council, un Doc S/Res/2042, 14 April 2012; un Security Council, un Doc S/Res/2043, 21 April 2012; un Security Council, un Doc S/Res/2118, 27 Sept 2013; un Security Council, un Doc S/Res/2139, 22 Feb 2014; un Security Council, un Doc S/ Res/2165, 14 July 2014; See also, Russia (S/PV.6710, 23), China (un General Assembly, un Doc A/66/PV.97, 16 Feb 2012, 8). See, the first vetoes (un Security Council, un Doc S/2011/612, S/PV.6627, 4 Oct 2011, 2), the second vetoes (un Security Council, un Doc S/2012/77, S/PV.6711, 4 Feb 2012, 2), the third vetoes (un Security Council, un Doc S/2012/538, S/PV.6810, 19 July 2012, 2), and the fourth vetoes (un Security Council, un Doc S/2014/348, S/PV.7180, 22 May 2014, 4). See, e.g., Russia (S/PV.6627, 3–4; S/PV.6710, 24; S/PV.6711, 9; S/PV.6810, 2, 8–9), China (S/ PV.6627, 5; S/PV.6710, 25; S/PV.6810, 13). There was a strong concern over the Libyan experience among many un member states at the thematic meetings entitled ‘protection of civilian in armed conflict’. See, e.g., Argentina (S/PV.6790, Resumption 1, 5), Chile (S/ PV.6650, Resumption, 16), Canada (Ibid, 7), Pakistan (Ibid, 20).

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draft resolutions reveals that their biggest concern was what Russia called a ‘violent’ or ‘quick regime change’45 by un intervention. There seem to be two main reasons for their insistence on the avoidance of regime change of this kind. First, they have their own political, economic, and/or strategic interests in Syria. For instance, Syria is a major importer of Russian firearms and defence equipment and hosts a strategically positioned Russian naval base at Tartus on the Mediterranean Sea, which is the only naval base outside the former Soviet Union.46 Meanwhile, China has been the largest importer for Syria. Notably, China ranks first among the P5 in its trade volume with states that have been criticised for their gross and systematic human rights violations by the un, such as dprk, Sudan, Myanmar, Libya, and Syria. China’s commercial interactions with them have grown significantly due to its rapid economic growth for the first decade in the 21st century.47 These Chinese and Russian strategic and economic interests would have been greatly impaired, had the vetoed draft resolutions on economic sanctions against Syria been adopted. The second reason for their deep concerns about regime change is that a collapse of the Syrian government might become ‘another Libya,’48 which would set dangerous precedents for un intervention in their own internal matters, such as Chechnya for Russia and Tibet, Xinjiang, and Taiwan for China. These are the essential parts of the specific vital interests of their own definition, and it is against this background that they have been compelled to use their vetoes to prevent even the threat of sanctions, which would potentially result in quick regime change in Syria. With focus on this dimension of ‘veto as a right’ itself, it is possible to suggest that the two veto-wielders used their vetoes at their own discretion, as they perceived their vital interests as described above to be at stake, even if their vetoes have aggravated not only gross and systematic human rights violations, but also the infringement of the right to self-determination of people in Syria.49 Furthermore, it is often difficult to distinguish between the two fundamental rationales in the un deliberations. In fact, China and Russia felt 45 S/PV. 6627, 4–5. 46 Graham Cronogue, ‘Responsibility to Protect: Syria The Law, Politics, and Future of Humanitarian Intervention Post-Libya’ (2012) 3 International Humanitarian Legal Studies 47. 47 Joel Wuthnow, Chinese Diplomacy and the un Security Council: Beyond the Veto (New York: Routledge, 2013) 7–9. 48 The us (S/PV.6710, 13). 49 For a similar comment, see, Patrick Stewart, ‘Contribution to Colloque International “Regulating the Use of Veto in the un Security Council in Case of Mass Atrocities”’, available at http://www.sciencespo.fr/psia/sites/sciencespo.fr.psia/files/Contribution_Stewart.pdf (last visited 3 Oct 2015) 3–4.

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compelled to justify their vetoes in terms of ‘state-oriented’ peace as the un purposes and principles, not of their respective vital interests per se. This is probably because they recognised that their arguments solely based on their vital interests would not be tenable among the member states. However, just because they justified their vetoes in terms of the un purposes and principles does not mean that their vetoes are always legitimate and contribute to the interests of the un as a whole; otherwise, it would mean that the two veto-wielders, not the majority un members, would always have the power to decide what the un purposes and principles are or what they should be. Rather, what should be emphasised is that as the Chinese and Russian arguments in terms of un purposes and principles have been greatly influenced by their perceived vital interests in the Syrian conflict, they can hardly be the same as those of many, if not most, member states with regard to the interpretation of the interests of the un as a whole. It is the implications of these differences that should be scrutinised for the purpose of clarifying the relationship between ‘veto as a right’ and ‘veto as a responsibility’ in the Chinese and Russian vetoes.

The Repeated Chinese and Russian Vetoes: The ‘Veto as a Responsibility’ Dimension There are three points to make from the viewpoint of the gap between ‘veto as a right’ and ‘veto as a responsibility.’ First, China and Russia have strictly adhered to the traditional Westphalian notion of state sovereignty and the principle of non-intervention, without considering seriously the fact that since 1945 there has been a gradual reinterpretation of ‘peace’ to be maintained under Article 1 (1) of the Charter, due to a rapid increase in the number of internal conflicts involving serious human rights violations, that is, a significant normative shift from ‘state-oriented’ to ‘human-oriented’ peace, and from ‘sovereignty as a right’ to ‘sovereignty as a responsibility.’50 Most recently, the iciss proposed the R2P concept in 2001, and the General Assembly subsequently adopted the World Summit Outcome Document, endorsing the R2P concept by consensus in 2005. The latter prescribed that the states are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including

50

Vera Gowlland-Debbas, ‘Security Council Change: The pressure of emerging international policy’ (2009–2010) 65 International Affairs 119; iciss, Responsibility to Protect, Research (2001) 5–13.

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Chapter 7, on a case-by-case basis … if national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.51 In fact, China and Russia’s repeated vetoes and strict adherence to ‘state-­ oriented’ peace to protect their vital interests have eventually led to the Security Council’s inability to take timely and decisive actions, thereby ­aggravating the situation involving acts amounting to crimes against humanity, and causing a massive flow of over four million Syrian refugees,52 not only into its neighbouring states such as Lebanon, Jordan, Turkey, and Iraq, but also into a significant number of European countries. Therefore, the Syrian conflict is no longer a domestic matter of Syria to which the principle of non-intervention can apply. This refugee crisis, with the death toll in Syria rising to over 250,000, has inevitably caused a growing threat to regional and international peace and security under Chapter 7 of the Charter, against which the Security Council in general and the P5 in particular have responsibilities to take measures in order to ensure prompt and effective action by the un. Second, China and Russia have failed to keep in mind ‘the duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto.’53 Focusing on the linkage argument between Libya and Syria, the majority of the Council members have sought unanimity by emphasising that the Syrian case is distinguishable from the Libyan one in terms of the Security Council enforcement measures. Specifically, the primary purpose of the threat of coercive measures in the first and third vetoed draft resolutions was not to take military intervention that would potentially contribute to the overthrow of the Assad regime (‘another Libya’), but only to disable its ability to keep harming its own populations by imposing threat of economic sanctions as the first step to achieve the Syrian-led political transition to a democratic, plural political system in light of the pursuit of ‘human-oriented’ peace.54 This course of action was also strongly supported by the Arab League, which not only had 51 52

53 54

un General Assembly, un Doc A/Res/60/1, 24 Oct 2005, para 139. S. O’Brien (Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator), Statement to the Security Council on Syria, New York, 27 August 2015, https:// docs.unocha.org/sites/dms/Documents/27%20Aug%2015%20USG%20Syria%20Sec%20 Co.pdf (last visited 15 Oct 2015). un General Assembly, un Doc A/Res/377 (v), 3 Nov 1950, preamble. See, e.g., the us (S/PV.6627, 8; S/PV.6710, 13), France (Ibid, 16), the uk (Ibid, 16), Qatar on behalf of the Arab League (Ibid, 30), Portugal (S/PV.6711, 6), South Africa (Ibid, 11).

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suspended Syria, but also had taken sanctions against Syria on its own initiative in November 2011.55 China and Russia have nevertheless constantly made linkage arguments between Syria and Libya in terms of their strong concerns over quick or violent regime change, and have never yielded to the majority’s efforts to achieve unanimity.56 These two permanent members’ positions became very clear when Russia, for instance, stated categorically that it ‘simply cannot accept a document under Chapter 7 of the Charter of the United Nations, that would open the way for the pressure of sanctions and later for external military involvement in Syrian domestic affairs.’57 Moreover, the unwillingness of China and Russia to seek unanimity became more evident in the negotiation process of the second vetoed draft resolution under Chapter 6, which excluded any possibility of coercive measures of a non-military or military kind, and also condemned ‘all violence, irrespective of where it comes from,’58 with consideration for continued human rights violations in Syria. In short, the second draft resolution seemed to represent ‘the broadest possible consensus’59 of the un member states, but was nevertheless rejected by 13 votes in favour, 2 against (China, Russia). Had China and Russia made a decision, recalling the dimension of ‘veto as a responsibility’, to at least abstain from the vote of the second vetoed draft resolution on Syria, and also had the Security Council acted more effectively and in a more timely manner in the conflict to carry out its duties, the Council might not have missed a chance to seek a solution by peaceful means, or might have prevented the escalation of the conflict to a civil war and the gross violation of human rights claiming the lives of more than 250,000 people, while allowing the ‘Islamic State’ to continuously expand its territorial control in Syria. Third, as the ‘Uniting for Peace’ resolution states, the failure of the Security Council and the P5 to fulfil their responsibilities neither ‘relieve (the un) [m]ember [s]tates of their obligations’ nor ‘deprive the General Assembly of its rights’ under the Charter with regard to the maintenance of international peace and security.60 As for the member states’ obligations, it is noteworthy 55

Spencer Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 Melbourne Journal of International Law 21. 56 Alex J. Bellamy, ‘From Tripoli to Damascus? Lesson learning and the implementation of the Responsibility to Protect’ (2014) 51 International Politics 23. 57 S/PV.6810, 8. 58 un Security Council, un Doc S/2012/77, 4 Feb 2012, para 3. 59 See, France (S/PV.6711, 4). 60 un General Assembly, un Doc A/Res/377 (v), 3 Nov 1950, preamble.

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that, although China and Russia have exercised their veto power four times, the other Council members have never voted against the Council draft resolutions on Syria. In this respect, it is important to examine the implications of the ambivalent voting behaviours of India, Brazil, and South Africa (collectively referred to as ibsa) in comparison to that of China and Russia, because the group of five is known as the brics states, all of which have taken a more traditional stance on the interpretation of state sovereignty and the principle of non-intervention in domestic matters, expressing serious concerns over the overthrow of the Qaddafi regime by nato-led military intervention;61 comparing with Chinese and Russian steadfast opposition to any measures potentially resulting in quick regime change in Syria, the ibsa states have taken ‘softer, more flexible stances’62 to proposed international action, thereby distancing themselves from Chinese and Russian vetoes, not only in terms of the necessity of a spirit of compromise and flexibility,63 but also in terms of the need to disable the Assad regime’s capacity to harm its own people by imposing at least the threat of economic sanctions against Syria. These differences illustrate that Chinese and Russian stubborn arguments in terms of un purposes and principles have been so greatly influenced by their own vital interests that they were fairly, if not completely, isolated in the Council deliberations. This helped most member states – including the ibsa states – realise that the relationship between ‘veto as a right’ and ‘veto as a responsibility’ in the Chinese and Russian repeated vetoes could hardly be seen as two complementary sides of the same coin contributing significantly to the interests of the un as a whole. As for the General Assembly’s secondary responsibilities, this organ has already adopted resolutions with substantial majority that repeatedly demand that the Security Council take all effective measures to halt serious violations of international human rights law and humanitarian law, and invite member states to provide all support to the Syrian people.64 Given these three points, while China emphasised, in justification of its veto, that its ‘purpose is to safeguard the interests of the Syrian people and Arab countries, and the interests of all countries-small and medium – sized 61 62

63 64

See, e.g., India (S/PV.6650, 18), South Africa (Ibid, 22), Brazil (Ibid, 17). Andrew Garwood-Gowers, ‘The brics and the Responsibility to Protect: Lessons from the Libyan and Syrian Crises’ in Vasilka Sancin and Masa K. Dine (eds) Responsibility to Protect in Theory and Practice (Ljubljana: GV Zalozba, 2013) 291. India (S/PV.6810, 7), South Africa (Ibid, 11). See, e.g. un General Assembly, un Doc A/Res/66/253B, 3 Aug 2012, para 15; un General Assembly, un Doc A/Res/67/262, 15 May 2013, para 9; un General Assembly, un Doc A/ Res/68/182, 18 Dec 2013, para 12.

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­countries in particular,’65 it should be noted, however, that there has been a growing consensus among the member states that the Security Council’s inaction over the crisis has resulted from the failure of China and Russia to bear their special responsibilities for promoting un purposes and principles, making their use of veto abusive from the viewpoint of the contradictory relationship or the widening gap between ‘veto as a right’ and ‘veto as a responsibility’ under the Charter.66 This, in turn, led the majority of the Council members to express, in order to bridge the gap between the two fundamental rationales, that the P5 should not exercise their veto in cases of humanitarian crises within a sovereign state when it manifestly fails to protect its own people.67

The French Proposal on Veto Restraint and the Chinese Proposal on ‘Responsible Protection’ What should be done to make the Security Council respond to humanitarian crises in a more timely and decisive manner in similar future cases? There is a wide range of issues to be resolved, but this article focuses on the implications of the two recent proposals made by France and China, respectively.

The French Proposal on Veto Restraint France has made a detailed ‘code of conduct’ wherein the P5 would voluntarily and collectively refrain from using the veto where a mass atrocity has been committed.68 Most importantly, this state’s proposal includes an ‘exceptional clause’ that allows any of the P5 members to use its veto power even in massatrocity situations when it perceives its vital national interests to be at stake.69 65 S/PV.6810, 13. 66 Nao Seoka, ‘The Implications and Limitations of the Veto Power in the United Nations: A Critical Analysis of the Use of Veto by China and Russia in the Case of Syria’ (2015) 16 The United Nations Studies, 171 (in Japanese). See, e.g., Columbia (S/PV.6627, 8), France (Ibid, 3; S/PV.6711, 3–4), the uk (Ibid, 7), Guatemala (Ibid, 8), South Africa (A/66/PV.95, 13), eu (Ibid, 14), Costa Rica (A/66/PV.97, 10). 67 See, e.g., France (S/PV.7180, 4), Jordan (Ibid, 7), Australia (Ibid, 9), Luxemburg (S/PV.7052, 4), Brazil (Ibid, 24), Mexico (Ibid, 27). 68 Intervention de M Gérard Araud. Assemblée générale, Réforme du Conseil de sécurité/ usage du veto, 19 March 2014, available at http://www.franceonu.org/19-mars-2014-Assem blee-generale (last visited 10 Feb 2017). 69 Interestingly, this exceptional clause is contained in other proposals on veto restraints in case of mass-atrocity situations, such as in the iciss report (2001) and the High-Level Panel Report (2004): iciss, The Responsibility to Protect – Report of the International Commission on Intervention and State Sovereignty (Ottawa: The International Development

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This exceptional clause leads us to a larger and fundamental question: how the relationship between ‘veto as a right’ and ‘veto as a responsibility’ should be conceptualised more precisely in case of mass atrocities. Remarkably, there are several veto-restraint proposals with regard to mass atrocity that do not contain the vital-interest exceptional clause on the understanding that protecting people from mass-atrocity crimes should not be considered to be matters clearly related to any vital interests of the P5.70 It could be argued that this ‘Responsibility Not to Veto’ (RN2V) idea should be pursued, without any vital-interest exceptions, to raise the political cost of the use of veto, restore the authority and credibility of the Security Council, and more importantly, halt large-scale human rights violations.71 In fact, more than 100 states have expressed their support for such RN2V proposals in the form of the act initiative providing no vital-interest exceptions. However, it seems too early to say that there cannot be any case where the ‘veto as a right’ dimension applies to a mass-atrocity situation. It is submitted that the vital-interest escape clause may be invoked only in an extremely exceptional circumstance where the P5 themselves commit mass atrocities in and around their own territories: the rationales of the ‘veto as a right’ dimension, as a fuse, should be still applicable to such a case even in this globalised world. It seems plausible to assume that Security Council enforcement measures to halt the P5’s mass atrocities where their clear vital interests are greatly endangered would potentially result in an outbreak of wwiii among the P5 followed by the collapse of the un. Thus, the exceptional clause in the French proposal is neither unreasonable nor unrealistic if it applies only to a case of mass atrocity committed by the P5 themselves. In other words, the P5 should refrain from exercising their veto in any other mass-atrocity situations. Had this ‘code of conduct’ been adopted, China and Russia would have felt compelled to take the growing political costs of the use of vetoes far more seriously in the case of Syria, and the same would have applied to the frequent use of veto by the us on Israel-Palestine conflicts.

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Research Center, 2001), xiii, 51; United Nations General Assembly, un Doc A/59/565, 29 Nov 2004, para 256. For instance, neither the Small Five proposal (A/60/L.49, 17 March 2006, para 14; A/66/L.42/Rev.1, 3 May 2012, para 20) nor the un Secretary General Ban Ki-Moon proposal (A/63/677, 12 Jan 2009, para 61) contains the vital-interest clause, although the former proposal was withdrawn due to P5 pressure in the 2012 General Assembly deliberations. Stewart Patrick, ‘Limiting the Veto in Cases of Mass Atrocities: Is the Proposed Code of Conduct Workable?’ Council on Foreign Affairs, 21 Jan 2015.

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With this formula, it will be possible to properly assess the legitimacy of the use of veto in case of mass atrocities by a clear and precise standard; not by whether the P5’s justification on un purposes and principles, which is often a pretext for their vital interests, is convincing or not, but instead by whether the P5 themselves commit mass atrocities in and around their own territories. This will make it easier for the un member states to examine if the P5 bear their special responsibility for contributing to evolving un purposes and principles. It shows that the ‘veto as a right’ dimension is no longer a fundamental rationale, but only a truly exceptional one as far as mass atrocities are concerned.72 Interestingly, while a question may be raised on the feasibility of reaching an agreement on this ‘code of conduct’ to put it into practice, this understanding of the exceptional clause seems consistent with the original position of the three leaders at the Yalta Conference where their primary concern was to block Council measures in such cases as the Suez conflict,73 the Hong Kong dispute, the renewed German aggression, the Soviet-Finland War, and the us–Argentina conflict, in all of which their narrowly defined national interests were endangered as direct parties to the disputes. Although the Cold War made the un member states overlook this original understanding as the P5’s vital interests were gradually interpreted as widely and loosely as possible due to unique ‘balance of terror’ structure of nuclear weapons, it is high time that the un member states remember this original and strict understanding of vital interests of the P5 with regard to veto power. If this analysis is correct, it seems that the strict interpretation of the French exceptional clause is a reasonable way to bridge the gap between the ‘veto as a right’ and ‘veto as a responsibility’ dimensions in terms of mass-atrocity situations. This proposed ‘code of conduct’ is all the more necessary not only because there is little prospect of a formal amendment of Article 27 (3) of the un Charter, but also because the structure of the Security Council has been and will be unrepresentative due to a continuing shift in the balance of power since 1945. 72

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For a similar view, see, Gareth Evans, ‘Contribution to Colloque International “Regulating the Use of Veto in the un Security Council in Case of Mass Atrocities”’, available at http://www.sciencespo.fr/psia/sites/sciencespo.fr.psia/files/Contribution_Evans.pdf (last visited 10 Feb 2017). Yet, as discussed above, the Suez Crisis nevertheless suggests that the use of veto can be seen as a clearly abusive case, even in a situation where the P5 themselves get directly involved, depending on the changing power balance between the P5 and the member states, evolving un purposes and principles, and the gradual normative shift from ‘veto as a right’ to ‘veto as a responsibility’.

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The Chinese Proposal on ‘Responsible Protection’ On the other hand, it is important to remember that the recent veto-restraint proposals on mass atrocity have mainly, if not exclusively, relied on the ­power-limiting function of human rights to tame veto power in times of globalisation. This could potentially lead to much more dependence of the un collective security on major Western Powers to implement Security Council resolutions aimed at halting gross and systematic violations of human rights in a timely and decisive manner. At the same time, however, we cannot rule out the risk that their implementation might be used or seen as a pretext for increasing their own influence and power. This risk shows that the veto-­ restraint proposals excessively relying on the power-limiting function of human rights cannot be very convincing without taking fully into account the power-­legitimating function of human rights.74 This concern became evident in the Libyan case where China and Russia, both of which had abstained from voting on Security Council Resolution 1973, strongly condemned the Western-led military intervention authorised by the Council for having exceeded its mandate, thereby resulting in the overthrow of the Qaddafi government.75 This regime change was one of the main reasons why China and Russia felt compelled to exercise their veto power four times in the Syrian conflict to prevent ‘another Libya’. In response to the Libyan experience, the two brics members – Brazil and China – have each made interesting proposals on how to implement Security Council resolutions concerning military intervention for humanitarian purposes. In 2011, Brazil proposed the idea of ‘Responsibility while Protecting’ (RwP) in the aftermath of the military intervention in Libya.76 This initiative was followed more recently by the semi-official Chinese idea known as ‘Responsible Protection’ (rp).77 With this idea, China explicitly recognises that non-consensual military intervention for humanitarian purposes can be an appropriate course of action for the Security Council to pursue, albeit within a very narrow range of 74 I am grateful to Yahyaoui Ekaterina, who helped me develop this point. 75 S/PV.6498, 3. 76 Oliver Stuenkel and Marcos Tourinho, ‘Regulating Intervention: Brazil and the Responsibility to Protect’ (2014) 14 Conflict, Security & Development 379. 77 Ruan Zongze, ‘Responsible Protection: Building a Safer World’, China Institute of International Studies, 15 June 2012, available at http://www.ciis.org.cn/english/2012-06/15/con tent_5090912.htm (last visited 10 Feb 2017). The rp has not yet been formally adopted as the official Chinese position on R2P.

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circumstances.78 Meanwhile, it emphasises that ‘[i]t is absolutely forbidden to create greater humanitarian disasters because of protection, let alone to use protection as a means to overthrow the government of a given state.’79 Taken together, rp can be seen as an attempt to ensure China’s last option of vetoing any proposed Security Council action that could potentially lead to quick regime change, as nowhere in the rp concept is the RN2V idea mentioned. In addition, it is probable that the detailed, strict rp guidelines may result in prolonged negotiations over the mandate of the Security Council, thereby undermining, even without Chinese veto, the ability of the Council to make timely and decisive responses to humanitarian crises.80 It seems that there is little reasonable prospect for reaching consensus on how to reconcile the Chinese rp proposal with the French veto-restraint proposal in un reform. This is all the more so because of fundamental disagreement among the P5 members over a dilemma characterised by the tension ­between R2P and regime change.81 While an overthrow of a government is not, as such, a legitimate objective of coercive measures under R2P doctrine, there can be a situation where mass atrocities by a government are so gross, systematic and widespread that disabling its capacity to keep harming its own people may necessarily or accidentally result in a quick regime change.82 In such a situation, the regime change should be, as lex ferenda, recognised as a legitimate consequence of the protection of civilians, not as an illegitimate intervention exceeding the un mandate.83 This understanding should be viewed as consistent with the growing consensus that the Security Council has endorsed a basic policy that a political transition in a peaceful and democratic manner should be a long-term strategy in tackling mass-atrocity situations.84 In short, the recent veto-restraint proposals should be coupled with the continued elaboration of rwp and rp, because it will be important to convince 78

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Andrew Garwood-Gowers, ‘China’s “Responsible Protection” concept: Re-interpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes’ (2015) 6 Asian Journal of International Law 28. Zongze (n 77). Garwood-Gowers (n 78) 21. Alex J. Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’, E­ -International Relations, 27 Sept 2011, http://www.e-ir.info/2011/09/27/the-responsibility -to-protect-and-the-problem-of-regime-change/ (last visited 10 Feb 2017). See also, iciss (n 69) 35, para 4.33. For a similar argument, see, Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (4th ed, New York: Basic Books, 2006) x. Sean Butler, ‘Separating Protection from Politics: The un Security Council, the 2011 Ivorian Political Crisis and the Legality of Regime Change’ (2015) 20 Journal of Conflict & Security Law 251.

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China and Russia that the Libyan case is the exception rather than the rule. At the same time, we have to see if rwp and rp are not so strict or detailed as to make it impossible for the Western Powers to implement Council resolutions aimed at halting mass atrocities.85

Concluding Remarks

This article has examined under what conditions the P5 should refrain from the use of veto in light of evolving un purposes and principles, with an emphasis on viewing the veto power as a broader concept that encompasses both the P5’s rights (‘veto as a right’) and their special responsibility (‘veto as a responsibility’). The idea that the dimension of ‘veto as a right’ is inherently bound by that of ‘veto as a responsibility’ requires each of the P5 members to take into serious consideration the interest of the un as a whole regarding the maintenance of international peace and security, the right of people to selfdetermination, and the protection of human rights, even when they use the veto as a right to protect their vital national interests that they perceive to be at stake. These rationales imply that the P5 members cannot and should not exercise veto power to protect their own interests in ways that constitute a clear infringement of un purposes and principles, which have been gradually evolving. With these rationales in mind, this article clarifies three salient points. First, the two fundamental rationales of veto power were viewed, in a rough sense, as two sides of the same coin in many, if not most, cases during the Cold War. More significantly, however, the un responses to the Suez Crisis under the ‘Uniting for Peace’ resolution can be seen as a rare but important case that highlights the huge gap between the two fundamental rationales of veto power, thereby, conducing to further discussion on un reform with focus on a gradual normative shift from the ‘veto as a right’ to the ‘veto as a responsibility’ dimension in light of evolving un purposes and principles. Second, since the end of the Cold War and with the gradual advance of globalisation, the gap between ‘veto as a right’ and ‘veto as a responsibility’ especially in cases of mass atrocities has become increasingly evident. This article argues that the Chinese and Russian vetoes in the Syrian conflict should, as with the uk–France joint vetoes in the Suez Crisis, be regarded as typically abusive and therefore illegitimate use of veto power, because these permanent members pursued their own self-defined vital interests in ways that failed to identify a ground for compromise to achieve unanimity in accordance with 85

Cronogue (n 46) 145; Stewart (n 49) 6.

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‘the spirit and letter of the Charter’86 and also failed to fulfil their special responsibilities to exercise restraint in the use of the veto. Third, this article focuses on the implications of the two recent proposals made by France and China, respectively, for the purpose of making the Security Council respond to humanitarian crises in a more timely and decisive manner in similar future cases. As for the French proposal, its vital-interest escape clause may be invoked only in an extremely exceptional circumstance where the P5 themselves commit mass atrocities in and around their own territories; the P5 should, in turn, refrain from their use of veto in any other mass-atrocity situations. This article also highlights the necessity for the recent veto-restraint proposals to be coupled with continued elaboration of rwp and rp on the monitoring mechanisms for the implementation of Security Council resolutions concerning military intervention for humanitarian purposes. At the same time, however, it is necessary to ensure that these proposals are not so strict or detailed as to make it impossible for the Western Powers to implement Council resolutions aimed at halting mass atrocities. One of the essential issues to be resolved is the relationship between R2P and regime change. Indeed, the Syrian case represents the fundamental dilemma characterised by the tension between R2P and regime change in the aftermath of the Libyan case. In this respect, the ibsa’s flexible or ambivalent positions among brics members might have some influence on China and Russia’s decision-making process as a veto-wielder in response to m ­ ass-atrocity situations. This is true, not only because the ibsa states are, as rising powers, considered strong candidates for becoming new permanent members in the Security Council reform and therefore need to show their capacity and willingness to play a greater role in achieving the evolving un purposes and principles, but also because, as democratic brics states, they have been compelled to take ‘sovereignty as a responsibility’ more seriously in R2P situations. It is incumbent on us to explore more deeply the relationship between R2P and regime change in order to ascertain what ‘veto as a responsibility’ means in mass-atrocity situations. Only such an investigation will meaningfully clarify the implications and limitations of veto power in the 21st century, which may contribute to more realistic and effective Security Council reform. Bibliography Bellamy, Alex J., ‘From Tripoli to Damascus? Lesson learning and the implementation of the Responsibility to Protect’ (2014) 51 International Politics 23–44. 86

United Nations General Assembly, un Doc A/Res/377(V), 3 Nov 1950, ANNEX C.

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Bellamy, Alex J., ‘The Responsibility to Protect and the Problem of Regime Change’, E-International Relations, 27 Sept 2011, http://www.e-ir.info/2011/09/27/the-respon sibility-to-protect-and-the-problem-of-regime-change/ (last visited 10 Feb 2017). Butler, Sean, ‘Separating Protection from Politics: The UN Security Council, the 2011 Ivorian Political Crisis and the Legality of Regime Change’ (2015) 20 Journal of Conflict & Security Law 251–276. Claude, Jr, Inis L., Swords into Plowshares – The Problems and Progress of International Organization (4th ed, New York: Random House, 1971). Cronogue, Graham, ‘Responsibility to Protect: Syria The Law, Politics, and Future of Humanitarian Intervention Post-Libya’ (2012) 3 International Humanitarian Legal Studies 124–159. Evans, Gareth, ‘Contribution to Colloque International “Regulating the Use of Veto in the UN Security Council in Case of Mass Atrocities”’, available at http://www.sci encespo.fr/psia/sites/sciencespo.fr.psia/files/Contribution_Evans.pdf (last visited 10 Feb 2017). FRUS, The Conference at Malta and Yalta 1945 (Washington: United States Government Printing Office, 1955). Garwood-Gowers, Andrew ‘The BRICS and the Responsibility to Protect: Lessons from the Libyan and Syrian Crises’ in Vasilka Sancin and Masa K. Dine (eds) Responsibility to Protect in Theory and Practice (Ljubljana: GV Zalozba, 2013) 291–315. Garwood-Gowers, Andrew, ‘China’s “Responsible Protection” concept: Re-interpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes’ (2015) 6 Asian Journal of International Law 89–118. Goldsworthy, David, (ed) The Conservative Government and the End of Empire 1951– 1957, Part I International Relations (London: HMSO, 1994). Gowlland-Debbas, Vera, ‘Security Council Change: The pressure of emerging international policy’ (2009–2010) 65 International Affairs 119–139. Hurd, Ian, After Anarchy – Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2007). Kelsen, Hans, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (New York: Frederick A. Praeger, 1950). Kissinger, Henry, Diplomacy (New York: Simon & Schuster Paperbacks, 1994). Lauren, Paul G., Craig, Gordon A., and George, Alexander L., Force and Statecraft: Diplomatic Challenges of Our Time (5th ed, Oxford: Oxford University Press, 2014). Mahbubani, Kishore, ‘The Permanent and Elected Council Members’, in David Malone (ed) The UN Security Council: From the Cold War to the 21st Century, (London: Lynne Rienner Publishers, 2004) 253–266. Ministère des affaires étrangères, Documents Diplomatiques Francais, 1956 tome III (Paris: Imprimerie Nationale, 1990). Peters, Anne, ‘The Responsibility to Protect and the Permanent Five: The Obligation to Give Reasons for a Veto’, in Julia Hoffmann and Andre Nollkaemper (eds) Respon-

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sibility to Protect: From Principle to Practice (Amsterdam: Pallas Publications, 2012) 199–211. Seoka, Nao, The Implications and Limitations of the Veto Power in the United Nations: A Critical Review of the Practice from its Birth to the Suez Crisis (Tokyo: Shinzansha Publisher, 2012) (in Japanese). Seoka, Nao, ‘The Implications and Limitations of the Veto Power in the United Nations: A Critical Analysis of the Use of Veto by China and Russia in the Case of Syria’ (2015) 16 The United Nations Studies, 163–185 (in Japanese). Stewart, Patrick, ‘Contribution to Colloque International “Regulating the Use of Veto in the UN Security Council in Case of Mass Atrocities”’, available at http://www.sci encespo.fr/psia/sites/sciencespo.fr.psia/files/Contribution_Stewart.pdf (last visited 3 Oct 2015). Stewart, Patrick, ‘Limiting the Veto in Cases of Mass Atrocities: Is the Proposed Code of Conduct Workable?’ Council on Foreign Affairs, 21 Jan 2015. Stuenkel Oliver and Tourinho, Marcos, ‘Regulating intervention: Brazil and the responsibility to protect’ (2014) 14 Conflict, Security & Development 379–402. The International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Research, Bibliography, Background (Ottawa: The International Development Research Center, 2001a). The International Commission on Intervention and State Sovereignty, The Responsibility to Protect – Report of the International Commission on Intervention and State Sovereignty (Ottawa: The International Development Research Center, 2001b). Tsagourias, Nicholas, ‘Whither the Veto: The Responsibility to Protect and the Security Council Veto’, in Vasilka Sancin and Masa K. Dine (eds) Responsibility to Protect in Theory and Practice (Ljubljana: GV Zalozba, 2013) 157–174. United Nations Information Organization, Documents of the United Nations Conference on International Organization (­U NCIO), San Francisco, 1945 (New York: W.S. Hein, 1998) vol. XI. Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (4th ed, New York: Basic Books, 2006). Webb, Philippa, ‘Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria’ (2014) 19 Journal of Conflict & Security Law 471–488. Wuthnow, Joel, Chinese Diplomacy and the UN Security Council: Beyond the Veto (New York: Routledge, 2013). Zifcak, Spencer, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 Melbourne Journal of International Law 1–35. Zongze, Ruan, ‘Responsible Protection: Building a Safer World’, China Institute of International Studies, 15 June 2012, available at http://www.ciis.org.cn/english/2012 -06/15/content_5090912.htm (last visited 10 Feb 2017).

part 4 Human Rights Taming Power Through Domestic Processes

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chapter 8

The Bounds of (Il)legality: Rethinking the Regulation of Transnational Corporate Wrongs Valentina Azarova Abstract The chapter critically interrogates the remedial limits of international law as regards the regulation of extraterritorial business by their home-states, by exploring the conceptual foundations of this area of law and their effects on state practice. The un Guiding Principles on Business and Human Rights offer limited guidance to home-states on their obligations to regulate their corporate nationals’ extraterritorial activities. At the same time, traditional approaches to the domestic implementation of international human rights law have failed to account for the interplay and interrelation between international law and domestic law. As a result, the limits of the remedial nature of human rights law as regards the regulation of extraterritorial corporate activity have effectively shielded businesses and their home-states from consequences under both international and domestic law. A rethinking of the legal risks entailed by transnational corporate wrongs for home-states through a transnational legal process, under home-states’ obligations to ensure the non-recognition as lawful of internationally unlawful acts by its domestic legal order opens the possibility of regulating such wrongs as either illegally-constituted gains or unlawfully obtained factors of production under * Post-Doctoral Fellow, Centre for Global Public Law, Koç University Law School, Istanbul, [email protected]. The research and writing for this chapter was undertaken during a Visiting Research Fellowship at the Legal Studies Department, Central European University, Budapest, funded by the Open Society Foundations. An earlier version of this chapter was presented at ‘Business and Human Rights: Turkish Law and Practice in Light of International Standards’, a workshop that took place on 26 May 2016 in Istanbul, co-organised by the Centre for Global Public Law, Koç University, and the Essex Business and Human Rights Project. The author has worked on corporate involvement in international law violations in the Israel/Palestine context since 2010; she presently advises actions that challenge transnational corporate activities in the Global South by multinationals domiciled in the Global North, including as a legal committee member of the Global Legal Action Network (glan). Parts of this chapter are based on extensive discussions with Charles Shamas, founder and senior partner at The MATTIN Group, whose unique methodological approach to enforcement of international law in the context of interstate relations and dealings inspires its particular approach. All errors and idiosyncrasies remain the author’s. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_010

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domestic laws – and not only as violations of human rights law. The chapter offers such a re-examination and invites a rethinking of the regulation of extraterritorial business as a transnational legal process.

Keywords Business and human rights – extraterritoriality – home-state regulation – nonrecognition – illicit financial flows – domestic corporate regulation – transnational legal process

Human rights law sets a very lofty ideal at a certain level of generality but it doesn’t drill it down so that policy-makers can know how to use it.1

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Introduction

The un Guiding Principles on Business and Human Rights (ungp) were conceived of as a set of implementing rules for existing international law, with a substantive focus on international human rights law (ihrl),2 but they appear to have overpromised. Failing to develop a granular understanding of the limits of relevant ihrl practice, the ungp depend for their implementation on states’ good-willed efforts to craft a regulatory approach that penalises corporate violations of human rights and other international law. Such an approach requires delimiting the bounds of business conduct according to states’ and 1 Michael O’Flaherty, fra Director, European Union Agency for Fundamental Rights, Interview with Deutsche Welle, 24 February 2016, available at http://bit.ly/21f87ee last visited 10 Feb 2017. 2 See on the conservative compromises of the ungp, Karin Buhmann, ‘Navigating from “Trainwreck” to Being “Welcomed”: Negotiation Strategies and Argumentative Patterns in the ­Development of the un Framework’, in Surya Deva and David Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013). For the notion of a weak obligation or duty of international law I draw on Başak Çalı, The Authority of International Law (Oxford: Oxford University Press, 2015).

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companies’ obligations under international law. But the ungp did not directly define prohibited acts by business that would constitute unequivocal violations of international law, nor provide model regulatory approaches for states to curb such conduct. The farthest that states have been willing to go is merely to encourage companies to consider those obligations in their decision-making process, without state-led supervision or review.3 The emerging state practice indicates reluctance by home-states to outlaw forms of business misconduct known to cause human rights harms.4 The ungp’s vague, generic guidance on forms of regulation has fuelled the existing ihrl indeterminacies on the obligations of states in relation to private actors; the very constructive ambiguities that have arguably thus far permitted states to give minimal consideration to such obligations in practice.5 The solution to this regulatory conundrum doubtless is not monolithic, but real promise lies in the operationalisation of corporate human rights obligations through their home-states (sometimes known as indirect corporate human rights obligations).6 An abundant literature addresses these and other shortcomings of the business and human rights (bhr) project, but few interrogate bhr’s normative pull to enforceability and ability to compel home-states to regulate their corporate nationals’ overseas dealings from the perspective of the internalisation of international law norms by domestic legal orders; also known as ‘vertical legal process’.7 It observes how transnational corporate actors generate interactions with foreign actors, trigger the interpretation of international legal norms by its home-state regulatory authorities, and in turn 3 See on the voluntariness of business responsibilities, David Bilchitz, ‘A Chasm between “Is” and “Ought”? A Critique of the Normative Foundations of the srsg’s Framework and the Guiding Principles’, in Surya Deva, David Bilchitz (eds) Human Rights Obligations of Business (Cambridge: Cambridge University Press, 2013) 107. 4 See on the forms of human rights harm caused by business, Business and Human Rights Resource Centre, Abuses, available at http://business-humanrights.org/issues/abuses (last visited 10 Feb 2017). As Wettstein denotes, the ‘accountability piece’ is left for governments to figure out; Florian Wettstein, ‘Normativity, Ethics, and the un Guiding Principles on Business and Human Rights: A Critical Assessment’ (2015) 14 Journal of Human Rights 162, 166. 5 This is not to say that such obligations, given states’ inconsistent practice, could do as much as is expected by some advocates that tend to rely on lege ferenda. 6 See generally, Carlos M Vazquez, ‘Direct vs. Indirect Obligations of Corporations Under International Law’, (2005) 43 Columbia Journal of Transnational Law 927–959. See also, for one proposal to this effect, Surya Deva, ‘Corporate Human Rights Violations: A Case for Extraterritorial Regulation’, in George Bragues (ed) Handbook of the Philosophical Foundations of Business Ethics (The Hague: Springer, 2013) 1077. 7 Harold Hongju Koh, ‘Why Do Nations Obey International Law?’, (1997) 106 Yale Law Journal 2599, 2645–2650.

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promote the internalisation of relevant international law norms in domestic law. In so doing, this chapter explores the potential conceptual and operational contribution of a regulatory perspective based on a re-understanding of homestates’ normative interests and needs in keeping overseas business activity in line with ihrl. This chapter considers how to compel more vigorous homestate regulation and enforcement of transnational corporate wrongs, in particular in contexts where there is a high-risk of human rights abuses, i.e. where abuses are structural and systematic for being either sanctioned by a government’s laws or practice or for taking place in an unregulated environment.8 In the dawn of globalisation, the prospect of turning ihrl standards into internalised regulatory imperatives at the domestic level offers promise of remedying the limited reach of traditional human rights and international mechanisms to the transnational activities of business domiciled in the global north and operating in the global south. The chapter begins with a set of diagnostic reflections on the structural shortcomings related to the ungp framework as a function of the limits of ihrl’s remedial nature (Section ‘The Conceptual Limits of Human Rights Protection’). It proceeds to test these propositions against examples of home-state practice on the implementation of the ungp through ‘national action plans’ (Section ‘The Operational Limits of Home-state Regulation’). The chapter proceeds by charting a regulatory approach that can remedy the limits of IHRL extraterritoriality through transnational regulation by the home-state’s legal order. In effect, certain forms of state involvement in extraterritorial human rights violations through their corporate nationals constitute legal risks to the domestic legal order home-state. Such home-states may be prompted to take a proactive approach to the regulation of overseas business, using ex ante hard rule-based factual tests and administrative measures to avert business from becoming involved in dealings that generate legal risks for the company and other nationals under the home-state jurisdiction, and threaten the deficient implementation of its domestic laws. In line with the broader themes of this volume, this chapter argues that minimalist understandings that prevail amongst practitioners and scholars of ihrl neglect the interface between international law and the domestic legal orders of home-states and have therefore failed to account for the effects of corporate involvement in ihrl and other international law violations – ­particularly

8 Liabilities under a home-state’s domestic laws may also be relevant to companies listed on its stock exchange or that maintain headquarters in its jurisdiction, and not only those domiciled in its jurisdiction.

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internationally unlawful acts the effects of which are invalidated by operation of international law – under domestic laws regulating corporate actors. Hence, such understandings limit the potential of the business and human rights framework in international law to pursue effective constraints on the power of such transnational actors. Partial understandings of the regulatory interface between international norms and domestic law that plays out in transnational legal processes have limited the ability of proponents of the business and human rights framework to reconstruct the current predicament, in which rights have been demoted to the realm of power-legitimating discourses and tactics,9 and operationalise home-states’ obligations as duty-bearers vis-à-vis victims of their corporate nationals’ conduct abroad.10 This chapter observes the potential contribution of such a paradigmatic shift in regulatory approaches that accounts for the ways in which transnational corporate involvement in human rights violations is regulated under domestic law. It considers the underexplored potential of a transnational (vertical) legal process, based on legal criteria from both international and domestic law, in furthering ex ante home-state regulation of overseas business under domestic laws.11 Relying on a regulatory perspective inherent to the needs of many home-states to protect their legal order from the harmful effects of internationally unlawful acts by ensuring their non-recognition as lawful, and denying them legal effect under domestic law, the chapter recasts existing perceptions of the bounds of (il) legality of overseas business in which businesses’ overseas wrongdoing is beyond the pale of the home-state’s regulatory obligations under international law.12 9

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See for a critique of the watering-down of human rights protection imperatives by the ungp, Surya Deva, ‘Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles’, in Surya Deva, David Bilchitz (eds) Human Rights Obligations of Business (Cambridge: Cambridge University Press, 2013) 78–104. Muchlinski argues that the reference to ‘due diligence’ in the ungp should lead to a binding duty of care of home-states towards victims; Peter Muchlinski, ‘Implementing the New un Corporate Human Rights Framework: Implications for Corporate Law, Governance and Regulation’, (2012) 22 Business Ethics Quarterly 145, 167. For the concept of the ‘transnational legal process’ I draw on Harold Hongju Koh,’Why Transnational Law Matters’ (2005–2006) 24 Penn State International Law Review 745, 746. See also, Peer Zumbansen, ‘Neither Public Nor Private, National Nor International: Transnational Corporate Governance from a Legal Pluralist Perspective’, (2011) 38 Journal of Law and Society 1, 50. This regulatory paradigm is based on the foundations of international human rights law where the state remains a paramount duty-bearer in relation to non-state actors under its effective control and jurisdiction; Eric De Brabandere, ‘Human Rights Obligations and Transnational Corporations: The Limits of Direct Corporate Responsibility’, (2010) 4

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The Limits of International Human Rights Law’s Remedial Reach

The ungp’s conception of responsibility in relation to overseas business suffers from shortcomings related to horizontality and extraterritoriality that can be traced back to the inherently state-centric nature of ihrl and the limits of its remedial nature.13 First is the weakness of horizontal obligations in ihrl, which manifests in their limited ability to prescribe, let alone compel, hard rule-based regulation. Second is the problem of ihrl’s aspiration for extraterritoriality: absent the factual tests or incentive-structure to assess and enforce businesses’ compliance with human rights standards abroad, home-state regulation has been limited to the promotion and dissemination of these standards. Indeed, the very policy-preferences embedded in ihrl give cover to businesses ability to rein free in line with the neo-liberal economic ideology and globalization, and essentially ‘maps onto a liberal economic model of laissez faire, with a modicum of light touch regulation and social provision in exceptional areas.’14 Weak Horizontality The first shortcoming is evident from home-states’ tendency to take a ‘back seat’ in relation to their so-called ‘duty’ to protect human rights when it comes to regulating business.15 As a subject of international law, bound by customary law, business is required to undertake due diligence measures to prevent actual harm, but the primary mediator and arbiter of the legality of a business’s transnational operations is its home-state; the primary addressee of human Human Rights and International Law Discourse 66. Andrew Clapham, ‘The Challenge of Non-State Actors for Human Rights Law’, in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran, with David Harris (eds) International Human Rights Law (Oxford: Oxford University Press, 2nd ed, 2017 forthcoming). 13 See for a detailed discussion of these parameters as they relate to the field of business and human rights, Olivier de Schutter, ‘The Challenge of Imposing Human Rights Norms on Corporate Actors’, in Olivier de Schutter, Transnational Corporations and Human Rights (Oxford: Hart Publishers, 2006) 1. 14 On ihrl remedial limits and neo-liberal ideological affinities, Ralph Wilde, ‘Dilemmas in Promoting Global Economic Justice through Human Rights Law’, Nehal Bhuta (ed) The Frontiers of Human Rights: Extraterritoriality and its Challenges (Oxford: Oxford University Press 2016) 173. 15 That which is framed as Pillar i of the un business and human rights framework; Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011) (‘ungp’).

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rights law (as opposed to rights ‘talk’). As part of their horizontal human rights obligations (of means) to take reasonable and appropriate measures,16 homestates are required to ‘protect against non-state human rights abuses’ including ‘by business entities.’17 The home-state is responsible for establishing an appropriate regulatory environment to ensure that business meets ‘the basic expectation society has.’18 Formally, such responsibilities and obligations are grounded in international and domestic law,19 and developed in the jurisprudence of regional human rights courts and un bodies.20 The ungp requires that home-states adopt a ‘smart mix of measures’, including legislative, administrative and judicial, to show that they have complied with their obligations.21 Yet, states enjoy extraordinary latitude in determining the appropriateness and adequacy of regulatory measures that would effectively uphold a minimum ‘do no harm’ standard of conduct by business.22 In general, home states merely encourage self-regulation, reporting and disclosure by business. In the absence of an articulation of what Knox calls ‘direct correlative duties for business’, horizontal indirect duties remain an unfulfilled promise by the state to rein-in wrongdoing business.23 Not only have states 16

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Platform Arzte für das Leben’ v Austria, App no 10126/82 (ECtHR 21 June 1988). See also Olivier De Schutter, International Human Rights Law (Cambridge: Cambridge University Press, 2010) 414. Adding that, ‘[t]he duty to protect exists under the core United Nations human rights treaties as elaborated by the treaty bodies, and is also generally agreed to exist under customary international law’: Report to the Human Rights Council by the Special Representative of the Secretary-General (srsg) on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/8/5, 7 April 2008, para 18. Ibid, para 9. See, for a critique of this grounds for corporate human rights obligations, Deva (n 9) 79. For the scope of human rights law in international and domestic law, Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford: Oxford University Press, 2012) Chapter 4. See for a discussion of the regional human rights courts’ case law and un bodies jurisprudence on horizontal obligations, Robert McCorquodale and Penelope Simons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 Modern Law Review 598. Principle 3, ungp (n 16). Wettstein notes that despite leaving plenty of room for interpretation, the guidelines have to some extent overcome the optionality that was previously associated with business obligations. Wettstein (n 4) 166. John Knox, ‘Horizontal Human Rights Law’ (2008) 102 American Journal of International Law 38. Knox observes that horizontal obligations essentially fail to place ‘converse duties on individuals [ie businesses] that governments could use to restrict their human rights.’

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failed to define prohibited conduct and assign penalties, but in many cases they do not even consider businesses’ duty of due diligence to be mandatory.24 The regulatory order that has emerged, such as it is, overemphasises corporate judicial lawsuits, which rely excessively on victims and civil society to initiate lawsuits and monitor company conduct, and on domestic judges to apply international law directly to business; often without such obligations having been clearly and explicitly incorporated into domestic law.25 The ungp does not assign strict regulatory duties to home-state authorities. The effectiveness of human rights norms in domestic law depends on their transposition into operational regulatory frameworks through legal and administrative acts and procedures, and their articulation as duties that businesses owe to states and other domestic subjects. Without hard-rule-based prohibitions and clear roles for national regulatory authorities to assign liabilities to business activities under domestic law, businesses are left to their own devices to interpret international law, decide if their activities violate it, and assess whether such violations would entail legal risks and could be punishable under domestic civil or criminal laws.26 In sum, and not entirely out of step with the horizontality predicament, overseas business effectively

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France is considering a bill to require parent companies to perform due diligence on their subsidiaries and subcontractors overseas: Novethic, ‘Une proposition de loi sur le devoir de vigilance pour les multinationales’, 8 November 2013, available at http://www .novethic.fr/isr-et-rse/actualite-de-lisr/isr-rse/une-proposition-de-loi-sur-le-devoir-de -vigilance-pour-les-multinationales-141118.html last visited 10 Feb 2017. Cf. Switzerland’s parliament narrowly rejected the motion for a draft law on human rights due diligence for Swiss companies overseas in March 2015; Swiss Coalition for Corporate Justice, ‘Over 140’000 signatures for the Swiss Responsible Business Initiative’, 15 April 2016, available at http://konzern-initiative.ch/over-140000-signatures-for-the-swiss-responsible-business -initiative/?lang=en last visited 10 Feb 2017. Some domestic judges remain averse to the application of international law to corporate actors, e.g. in the Veolia case where judges refused to see businesses as direct subjects of international law: Valentina Azarova, ‘Backtracking on Responsibility’ in Rights as Usual (1 May 2013), available at http://rightsasusual.com/?p=414 last visited 10 Feb 2017. Cf. for a discussion of abundant us case law making the opposite determination: Jordan Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) 35 Vanderbilt Journal of International Law 801. See for a discussion of the proposed conversion formulae for defining the human rights obligations of business: De Schutter (n 13) 40–43. Steven R Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal 481. David Kinley and Junko Tadaki, ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’ (2004) 44 Virginia Journal of International Law 931.

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remain unaccountable and unrestrained, even in international law-abiding home-states.27 Aspirational Extraterritoriality The parameters and scope of the home-state’s horizontal obligations to protect against business wrongdoing, weak as their status is domestically, are further problematized in the case of extraterritorial harms. Home-states’ duty to require their corporate nationals ‘not to act in such a way as to cause harm outside [their] territory,’28 encompasses an obligation to bring private actors into conformity with international law – as corroborated by the logic of the home-state’s ‘sphere of activity and influence.’29 Here too, home-states have often hidden behind the host-state’s international law obligations and defaulted in their ‘sphere of influence’-based duties, absent a firm correlative liability of the home-state in international law for failing to guarantee a specific standard of corporate conduct. Until a more granular conception of the state as transnational duty-bearer emerges in international law and practice – potentially with the drafting of an international treaty on the human rights obligations of business30 – our ability to hold home-states accountable under their extraterritorial ihrl obligations for overseas harms by their corporate nationals will likely remain an aspirational objective. ihrl’s extraterritoriality problem has been a source of political and legal dissatisfaction.31 Extraterritorial human rights obligations may traditionally 27

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See, on the definition of the international rule of law, which includes considerations of legality, accessibility and predictability, and is underpinned by respect for human rights; Robert McCorquodale, ‘Defining the International Rule of Law’ (2016) 65 International and Comparative Law Quarterly 277. Robert McCorquodale and Penelope Simmons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’, (2007) 70 Modern Law Review 598, 617. See also, Markos Karavias, ‘Shared Responsibility and Multinational Enterprises’, (2015) 62 Netherlands International Law Review 91. The concept does not have a ‘legal pedigree’: Ibid, 25. On the need for an international treaty on businesses’ international law obligations: David Bilchitz, ‘The Necessity of a Business and Human Rights Treaty’ (2016) 1 Business and Human Rights Journal 203. See also unhrc Resolution 26/9, adopted 14 July 2014, A/ HRC/26/L.22/Rev.1, and the work of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, available at http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/ IGWGOnTNC.aspx last visited 10 Feb 2017. See, e.g., Ralph Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’ (2007) 40 Israel Law Review 503; Frederic Megret, ‘Where Does the Critique of International Human Rights Stand? An Exploration in 18 Vignettes’,

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arise from a state’s exercise of state authority abroad,32 or through its empowerment of domestic bodies, courts and regulatory authorities, to adjudicate and regulate overseas situations as part of the predicate facts assessed by domestic regulatory authorities in the implementation of domestic laws.33 A state’s corporate nationals’ involvement in extraterritorial wrongdoing is considered the ‘most complex and controversial issue within the State duty to protect pillar of the un Framework.’34 The Maastricht Principles35 maintain that a state’s extraterritorial obligations (eto) include the regulation of corporate conduct, and an obligation to provide protection from the harm or threat of harm originating from the home-state’s territory, based on the company’s nationality and the ‘reasonable link between the State concerned and the conduct it seeks to regulate.’36 In practice, however, indeterminacies in the reach of ihrl, combined with the political imperative of non-interference in the domestic affairs of another state, limit the home-state’s ability to readily reverse the presumption on the application of the host-state’s laws.37 Although states often regulate

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in José María Beneyto and David Kennedy (eds) New Approaches to International Law: The European and the American Experiences (The Hague: tmc Asser Press, 2012) 3, 22–24, 25–27. For a discussion of extraterritorial obligations in the context interstate cooperation see Gearoid Ó Cuinn and Sigrun Skogly, ‘Understanding Human Rights Obligations of States Engaged in Public Activity Overseas: The Case of Transnational Education’ (2016) 20 International Journal of Human Rights 761. De Schutter (n 3) 142. Elizabeth Umlas, Human rights due diligence: Swiss civil society pushes the envelope, Business and Human Rights Resource Centrer (bhrrc) available at http://business -humanrights.org/en/human-rights-due-diligence-swiss-civil-society-pushes-the -envelope last visited 10 Feb 2017. Principles 24–25, Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights 2011. Olivier De Schutter, Asbjørn Eide, Ashfaq Khalfan, Marcos Orellana, Margot Salomon, and Ian Seiderman, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2012) 34 Human Rights Quarterly 1084. This principle is set out as a prohibition on non-interference in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v The United States), Judgment [1986] icj Rep 14, 64, para 205. The principle of universal jurisdiction enshrined in domestic criminal laws provides what can be seen as an exemption from non-interference; Menno T Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses’ (2001) 23 Human Rights Quarterly 940, 941–943. As regards human rights protection, discussed below, as a rule the host-state’s law is applied barring some exceptions.

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subsidiaries through their parent company, the scope of regulatory measures under domestic law or by domestic courts seldom accounts for the effects of the internationally unlawful overseas operations of a subsidiary on the parent company’s obligations under domestic law.38 Acknowledging the state of current ihrl practice, the Special Representative on Business and Human Rights noted in his 2011 report that ‘States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction,’ nor ‘are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.’39 In an attempt to advance protections in light of this acknowledgment, the report proposes an extra-territoriality matrix that distinguishes the home-state’s exercise of ‘direct extraterritorial jurisdiction over actors and activities abroad,’ from the home-state’s application of ‘domestic measures with extraterritorial implications.’40 The report adduces ‘strong policy reasons’ for states to regulate extraterritorial business activity, including that of ‘ensuring predictability for business enterprises by providing coherent and consistent messages, and preserving the State’s own reputation.’41 Yet, given the sensitivities and restrictions associated with the exercise of extraterritorial jurisdiction in international relations, the question is not only how home-states could use ‘domestic measures with extraterritorial implications’ to extend the reach of domestic regulation to overseas business, but also whether they could do so indirectly, without actually exercising jurisdiction, by 38

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Zerk distinguishes ‘parent-based’ and ‘foreign perspective regulation’, noting that the us Third Restatement on ‘extraterritorial regulation’, however does not make this distinction; Jennifer A Zerk, Multinationals and Corporate Social Responsibility (Cambridge: Cambridge University Press, 2008) 106–107. ungp (n 15) 7. Ibid, para 49. See also, International Law Institute, ‘The Protection of Human Rights and the Principle of Non-Intervention in the Internal Affairs of States’ (1989) 63 Annuaire de l’Institut de Droit International 338. ungp (n 15) para 2. See for a discussion of forms of extraterritorial jurisdiction in domestic law, e.g. import and export of goods; public procurement and investment; criminal regimes governing foreign corruption and bribery: Jennifer A Zerk, ‘Extra-territorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas’, Report of the Harvard Corporate Social Responsibility Initiative to Inform the Mandate of the srsg (June 2010); Herve Ascensio, ‘Extra-territoriality as an Instrument’, Report Prepared for an Expert Meeting on Exploring Extra-territoriality in Business and Human Rights, Boston (September 2010). For a more recent collection of case studies, Fons Coomans and Rolf Künnemann (eds) Cases and Concepts on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (Cambridge: Intersentia Publishing, 2012).

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accounting for the effects of corporate activities predicated on internationally unlawful acts and facts on the home-state’s domestic legal order.42 Extra-territoriality has the appeal of a potential ‘magic potion’ for holding business accountable for overseas human rights harms.43 Yet, except for universal jurisdiction for the most heinous acts, there is limited contemporary ihrlbased practice to offset state and business objections to extraterritoriality,44 notwithstanding policy arguments that it would serve national, business, and also international public interests.45 Given the resistance of states to internationalise responsibility for business harms, prospects for an international treaty on business and human rights appear bleak, at least in the short term.46 Human Rights Law’s Normativity Deficit In addition to the drawbacks arising from the classical understandings of the confines of state authority and territoriality, the prescriptive and prohibitive rules that ascribe behavioural standards to home-states as regulatory dutybearers suffer from a normativity deficit. It neither offers concrete content on the manner in which states are expected to internalise international law norms, nor on the regulatory processes they should use to operationalise them. The material scope of human rights protection, including as pertaining to the human rights violations of business, has broadened to include violations of 42

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Augenstein and Kinely ask whether home-states actually use domestic measures with extraterritorial application to protect human rights: Daniel Augenstein and David Kinley, ‘When Human Rights “Responsibilities” Become “Duties”: The Extra-territorial Obligations of States that Bind Corporations’, in Surya Deva and David Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013), 279. Nadia Bernaz, ‘Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?’ (2013) 3 Journal of Business Ethics 493. Advocates for an international treaty use this as one of the main points of attraction for clarifying the binding nature of business obligations and the their spatial and material reach: David Bilchitz, ‘The Necessity for a Business and Human Rights Treaty’ (2016) 3 Business and Human Rights Journal 203. See for a conceptual discussion of these shortcomings Zerk (n 38) 133–136. During the ilo Summit in June 2016, little progress was made by way of convening a ‘technical meeting of experts’ to assess failures, consider challenges and recommend measures: International Labour Conference, Fourth item on the agenda: Decent work in global supply chains, 105th Session, Geneva, May–June 2016. eu meetings are preoccupied with practical measures: European Commission, Directorate-General for Trade, eu and its partners discuss further steps to ensure better future for Bangladeshi garment industry workers, 28 January 2016, available at http://trade.ec.europa.eu/doclib/press/ index.cfm?id=1447 last visited 10 Feb 2017.

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international humanitarian and criminal law,47 but just like other ihrl norms, they depend on states for their particularisation and internalisation in domestic law, and for their enforcement on businesses. In all these fields of international law, home-states’ international law obligations suffer from a similar malaise of deficient enforcement: even rule of law-based home-state orders remain distinctly amiss with regards to their approach to the transposition of the business and human rights framework into domestic law (as apparent from nap practice observed in Section ii).48 Internalisation in this case refers not to the giving of direct effect to international law in domestic law, but to the incorporation of international law-based criteria into the domestic legal process as predicate facts. The under-appreciation of the normativity of home-state regulatory roles and legal consequences of business wrongdoing is manifest in the ungp’s use of watered-down terms such as ‘impact’ instead of ‘violation’.49 What matters for discerning the normativity of the commitment to protect human rights, as Wettstein remarks, is not the language being used to explain it, but the expectation that legal developments will flow from it and ‘whether or not it could [in practice] be turned into law’ by ‘defining, assigning and enforcing such a duty.’50 In other words, what legal risks, using Knox’s formulation of direct correlative ihrl duties,51 should businesses expect to incur in the course of their domestic and transnational operations through their regulation by their home-state’s domestic regulatory agencies? A further question can be asked of the nature of the regulatory processes the home-state applies to business: can human rights norms be reconstituted as legal criteria that transcend the strict jurisdictional and analytical divides that oftentimes artificially dichotomise domestic and international law-based 47

See, for case-studies of violations, Robert C Bird, Daniel R Cahoy and Jamie D Prenkert (eds) Law, Business and Human Rights: Bridging the Gap (Cheltenham: Edward Elgar, 2014) Part ii. See for international humanitarian law and international criminal law violations, Human Rights Watch, Occupation Inc.: How Business in Settlements Contribute to Israel’s Violations of Human Rights (2015). See also, on self-determination and rights to natural resources, Ben Saul, ‘The Status of Western Sahara as Occupied Territory under International Humanitarian Law and the Exploitation of Natural Resources’ (2015) 27 Global Change, Peace & Security 301. 48 Anne-Marie Slaughter, William Burke-White, ‘The Future of International Law Is Domestic (or, The European Way of Law)’ (2006) 47 Harvard International Law Journal 328. 49 Deva describes this casual play on human rights terminology as having the effect of ‘rolling back the legal concretization of human rights obligations’. Deva (n 9) 80. 50 Wettstein (n 4) 165, 169. 51 Ibid.

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criteria of legality? Or, in the transnational context, what is the essence52 of a business basing its overseas operations on another authority’s internationally unlawful acts in terms of the legal risks it should be expected to incur under its home-state’s domestic law?53 The next sections reflect on these questions by examining the potential contribution that could be made by domestic regulatory processes in regulating and enforcing transnational corporate activities and wrongs. Given the strictures of ihrl set out above, the potential for the business and human rights framework to amalgamate the components of a spatial law that captures the wrongdoing and assigns concrete liability to economic activities that contribute to or benefit from violations of international law, as things stand, hinges on the home-state’s commitment to combat the harmful effects of globalisation on economies and peoples in the global south. The need to absorb international law into domestic law and streamline its effects as part of a coherent and inter-reliant transnational legal process resonates Dworkin’s understanding of the legalisation and recognition of human rights in ‘positive law, so that they can be enforced,’54 and generate feelings of legal obligation and compliance-pull.55 The rule of law, as McCorquodale recalls, is ‘both an outcome and the means’ for human rights enforcement.56 Yet, in addition to the legal risks they generate under international law – with potential consequences in home-states’ domestic courts – business involvement in human rights violations can also generate risks through other d­ omestic

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Drawing on the meaning of the term ‘essence’ in the discussion of the law of identity: ‘Two things are called one, when the definition which states the essence of one is indivisible from another definition which shows us the other (though in itself every definition is divisible)’: Aristotle, Metaphysics, Book vi, Part 4 (c) (Translated by W D Ross; mit Internet Classics Archive). The transnational legal process by which such acts constitute predicate facts that can alter the implementation of domestic laws is considered in Section iii. Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985) 11–12. See on the formation of shared understandings around the value of human rights protection; Jutta Brunnée and Stephen J Toope, Legitimacy and Legality in International Law (Cambridge: Cambridge University Press, 2010) Chapter 2. See also, See Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887. McCorquodale (n. 28) 284–285, 302–303. See also, Case C-402/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ecr I-6351 (Kadi i) para 284 (measuring the legality of Community acts in terms of their compliance with human rights).

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l­ aw-based regulatory processes.57 The 2013 un report on Strengthening and Coordinating United Nations Rule of Law Activities observed that the rule of law, not only accords ‘predictability and legitimacy to the actions of states,’ but also ‘underpin[s] the responsibility of a state to all individuals within its territory and subject to its jurisdiction.’58 That responsibility is echoed not only by the need to protect the legal order from internationally unlawful illicit titles and benefits, but also by the need to protect nationals from other domestic subjects such as corporate nationals who become involved in transnational wrongs and ‘import’ them into the domestic sphere. It follows that states’ essential interest in the international rule of law is premised on an existential need to protect the effectiveness of the domestic rule of law.59 A more granular understanding of the implications of corporate nationals’ involvement in overseas violations of international law on the home-state’s laws and legal order, could therefore compel home-states to more vigorously account for and regulate the involvement of their corporate nationals in internationally unlawful acts on said businesses’ rights, liabilities and responsibilities under domestic law. II

Home-State Regulation of Overseas Business under the ungp Framework

The conceptual and operational limits of human rights protection in cases of overseas wrongdoing have invariably meant that ungp-based home-state regulation initiatives and their presentation in ‘national action plans’ have fallen short of paving the way for diligent regulation of overseas business. The ungp’s structures rely on corporate voluntarism and lack specific definitions of prohibited conduct, or a regulatory mechanism to ensure the appropriateness 57

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Such legality concerns pertain to home-states with developed legal orders, including administrative law that is premised on respect for international law and consistency between domestic public policy and the dealings of domestic subjects with foreign authorities, and a detailed body of law regulating corporate actors. It further maintains that the un Charter and ihrl are ‘central to collective efforts to maintain international peace and security, effectively address emerging threats and ensure accountability for international crimes’: Report of the Secretary-General, Strengthening and Coordinating United Nations Rule of Law Activities’, United Nations General Assembly Sixty-Eighth session, A/68/213, 29 July 2013. For the hybridity between domestic and international law underpinning the body of transnational law, I draw on Koh (n 11) 747–748. See also, discussion in McCorquodale (n 28) 281, citing Lon Fuller, The Morality of Law (Yale University Press, 1964) Chapter 2.

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of business operations and assign liabilities to those that fall afoul of domestic standards of legality with concrete statutory provisions that enshrine aversive attachments to violations of ihrl in domestic laws. From the limited pool of state practice, and the even more limited number of ‘best practice’ examples, that could fall under the category of ‘smart-mix regulatory measures’,60 this section draws on the practice (including ‘national action plans’ (nap)) of Sweden, Denmark, Norway, and Finland in relation to non-judicial enforcement, i.e. legislative and administrative regulation of overseas business, to show how well-intentioned states struggled to draw on the ungp and ihrl to put in place a coherent and effective regulatory framework in domestic law for overseas business. The Limits of ungp-based Practice Three observations can be made about the limited state practice and initial naps that distinctively echo the limits of human rights protection as a regulatory perspective. First, the mechanisms states propose to regulate corporate human rights harm are soft measures that aim to encourage business to conduct due diligence, providing counselling and guidance in this regard, but fail to define clear regulatory objectives and means.61 Given the lack of incentive structures, business protection and compliance measures with ihrl standards remain unchecked and unregulated.62 Denmark’s nap, for instance, refers to existing corporate social responsibility (csr) policies and 60 61

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For a critique of the ungp’s minimalist vision of ihrl obligations for states and business; Wettstein (n 5). In most cases, due diligence is not mandatory and states resort to an approach based on encouragement. The Swedish nap ‘encourage[s] all Swedish companies to use the international guidelines as a basis for their operations’ at home and abroad: Action Plan for Business and Human Rights, Government Offices of Sweden, Ministry of Foreign Affairs (August 2015) (Swedish nap) 13. The uk nap is almost entirely about encouragement and exhortation: Gerry Boyle, uk Guidance for Business on Human Rights Issues Needs Some Legal Teeth, The Guardian, 4 September 2013. Due diligence is required for state owned companies only: The Danish Government, Danish National Action Plan – I­ mplementation of the un Guiding Principles on Business and Human Rights (March 2014) 10–11 (Danish nap). Norway Ministry of Foreign Affairs, Business and Human Rights: National Action Plan for the implementation of the un Guiding Principles (Norwegian nap). See references to reputation in Finland Ministry of Employment and the Economy, National Action Plan for the Implementation of the un Guiding Principles on Business and Human Rights (Competitiveness 46/2014). On the inadequacy of regulatory options: International Corporate Accountability Roundtable (icar), European Coalition on Corporate Justice (eccj), Assessment of Existing National Action Plans (naps) on Business and Human Rights (November 2014) 4.

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mechanisms ­without the crucial distinction with bhr’s standards for accountability.63 By using csr as a regulatory benchmark, this nap epitomises the confusion surrounding what the ungp expects of home-states in upholding business’ responsibilities – or perhaps rather what states could get away with not doing by choosing to merely affirm their policy commitment to csr and assuming unfettered self-regulation.64 A second related issue is that not a single home-state’s nap (out of six reviewed by this author and by icar) proposes a clear domestic regulatory ­perspective for overseas business. States’ naps do not appear to establish important causal or normative links between business’ domestic legal obligations and their minimum obligations to ‘do no harm’ at home or abroad under ihrl. They do not take into account the company’s duty to abide by domestic regulations and other domestic legal obligations, and fail to address any number of domestic regulatory agencies responsible for various aspects of business activity. Instead, since most plans are conceptually limited to a state’s human rights commitments, they address national regulatory authorities charged with the protection of human rights domestically. In states’ plans thus far, the presentation of these authorities’ mandates and regulatory capacities has been limited to the ihrl instruments the state has ratified, and the manner in which they are incorporated in domestic law, including the non-judicial bodies (eg Ombudsmen, Committees) tasked with their implementation.65 Sweden’s nap merely lists direct offenses such as violations of the rights to life, health and property; criminal liability for corruption, offences such as theft, robbery, fraud, extortion, receiving stolen goods, bribery, dishonesty to creditors and infliction of damage.66 Without a particularised account of the liabilities business could incur under domestic laws for involvement in such wrongs overseas, given the wrongful character of the foreign authority’s actions, this is hardly adequate as a map of the links between the ungp and domestic regulation, which leaves business in the dark about their ability to manage such legal risks that may 63

64 65

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This observation was originally made in the icar report on nap. See on the crucial nature of the bhr focus on accountability: Anita Ramasastry, ‘Corporate Social Responsibility versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability’ (2015) 14 Journal of Human Rights 237, 243–248. Sweden and Finland also refer to existing csr efforts, as a starting point. See also, Norwegian nap (n 61) 13–14; and Finnish nap (n 62) 15. Norway’s plan recalls the work of different ombudsmen on labour, equality, and children as relevant complaint mechanisms but it remains unclear what their mandate and practice is in relation to business; Norwegian nap (n 61) 40–41. Sweden’s plans alike others provides a list of domestic legislation but does not explain its concrete, specific contribution to human rights protection: Swedish nap (n 61) 10.

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arise from their transnational activities.67 As discussed later, this is particularly relevant to offenses under domestic public and private laws, which seldom account for ihrl violations as the basis for responsibilities and liabilities of businesses under domestic law. Even well-established social and labour considerations in procurement law,68 which are recalled by most naps, requiring companies to provide information about social aspects of their activities (potentially also overseas), defer assessment of the legal risks of corporate involvement in human rights violations overseas to the procurer or the business, without sufficient guidance on either the specific wrongs or their implications of certain overseas harms on domestic law.69 Given states’ conception of businesses’ ‘responsibilities’ to protect human rights as neither obligations nor prohibited acts with concrete enforcement leverage,70 it is not clear that states’ naps even send the message that business activities that are predicated on human rights violations abroad, can have concrete legal consequences.71 Thirdly, virtually none of the nap that make reference to relevant domestic laws particularise what facts would be considered relevant for an assessment of a business’ responsibilities under domestic law, explain which domestic authorities are charged with the regulation of overseas conduct, or specify when and how any such regulation will occur. In other words, in terms of the icar/ Danish Institute for Human Rights (dihr) nap assessment criteria, many nap states have as yet to conduct a national baseline assessment.72 Even if 67

On the need to increase precision of norms and localising them: Damiano De Felice and Andreas Graf, ‘The Potential of National Action Plans to Implement Human Rights Norms: An Early Assessment with Respect to the un Guiding Principles on Business and Human Rights’ (2015) 7 Journal of Human Rights Practice 44. Cf. Norway’s nap that establishes an interministerial working group headed by the Ministry of Foreign Affairs to ensure that such reviews are conducted and domestic legislation is kept in line with international developments: Norwegian nap (n 61) 18. 68 Procurement procedures are mentioned as indirect penalties: Finnish nap (n 64) and Danish nap (n 61) 12. 69 Finnish nap requires companies to provide information on social aspects of their operations, Finnish nap (n 62) 20–21. The Danish government ‘has committed itself to promoting responsibility in public procurement’, including through the use of common ­guidelines for socially responsible procurement: Danish nap (n 61) 13. 70 Sweden’s nap (n 61) does not consider the application of laws, policies to overseas business. 71 See in relation to the uk and the Netherlands’ plans. All four initial naps reviewed did not conduct a baseline assessment; icar (n 62) 3. 72 All four initial naps reviewed did not conduct a baseline assessment: Ibid, 3. The Dutch ­government is one of a few to make a commitment to undertake such an assessment:

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the domestic protection mandate of some national regulatory authorities may be obvious, their regulatory role in relation to parent-companies’ overseas operations remains under-articulated and under-developed in practice. The only legal accountability measure contemplated by the Swedish nap relies on civil society to represent victims by launching lawsuits in domestic courts.73 Transnational civil and criminal lawsuits against corporations are however limited to the most egregious human rights violations, require victims to meet high standards of evidence (eg for causality and complicity),74 and are fraught with procedural hurdles.75 The fact that lawsuits against corporations are one of the only unequivocal hard law-based accountability mechanisms that indirectly defines and penalises prohibited conduct,76 means that most businesses enjoy a wide margin of appreciation in evading criminal or civil liability for their overseas operations.77 A number of naps provide a reminder of a further hurdle to legal accountability for overseas business: the presumption that overseas business should follow the host-state’s law. While it is appropriate, indeed necessary for homestates to defer activities to a host-state’s regulatory system, the doctrine of comity presumes the recognition and validity of other states’ laws and practices, only so long as they are deemed to be functionally equivalent and do not threaten the ability of the home-state, in our case, to implement its domestic

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75 76

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­ overnment of the Netherlands, National Action Plan for Human Rights and Business: G ‘Knowing and Showing’ (2013) 5. Documents produced on France, Italy, Switzerland and Norway by academics and civil society over emphasise desk research and are not based on interviews: De Felice and Graf (n 67) 54–55. The Swedish nap (n 61) discusses accountability almost exclusively as judicial adjudication. See on the gaps of prosecution: icar, Commerce, Crime, and Human Rights: Closing the Prosecution Gaps, 2014, available at http://icar.ngo/analysis/cchrlaunch/ last visited 10 Feb 2017. See, on the evidentiary hurdles in the criminal suit against Riwal in the Netherlands, Valentina Azarova, ‘Investigative or Political Barriers? Dutch Prosecutor Dismisses Criminal Complicity Case Against Riwal’, Rights as Usual, 29 May 2013, available at http://rightsasu sual.com/?p=543 last visited 10 Feb 2017. Under Swedish penal law, the perpetrator has to have some ties to Sweden: Swedish nap (n 61) 10. It has also been dubbed a form of ‘defensive extraterritoriality’: Ellen S. Podgor, ‘Defensive Territoriality: A New Paradigm for the Prosecution of Extraterritorial Business Crimes’ (2002) 31 Georgia Journal of International and Comparative Law 1. Gross human rights abuses can exceptionally be penalised under Norwegian penal law: Norwegian nap (n 61) 32.

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laws.78 Hence, a host-state’s laws that harbour business activities that either result in or are premised on forms of rights abuses and international law violations, or are otherwise either unregulated or unlawful from the perspective of the home-state, cannot be given legal effect by the home-state, as discussed below. While the practice of deference to host-states is premised on considerations of sovereignty and non-interference, naps should provide an opportunity for home-states to consolidate their practice and formulate clear limits on comity, not only in relation to tort law’s public policy exception,79 but also in terms of the reliance on the legality and validity of certain host-state laws and institutional practices by the home-state’s regulatory authorities in applying domestic law. Unaware of the inconsistency of such practices with the legal character of the activities under international law, businesses could themselves fall hostage to the courtesy politics of international relations and find themselves liable for both violations of international law and breaches of domestic law. Regulating Transnational Wrongs Efforts to implement the ungp are taking place amid growing awareness of the need for hard-and-fast checks on overseas business. Following recent disasters in global supply chains, including Bangladesh’s Rana Plaza in 2013, there is growing awareness of the need for law reform to clarify liability for human rights violations at production locations.80 Even so, serious reform efforts are few and far between, and it is unclear whether they will include 78

For a discussion of comity as a multifarious doctrine on both when to apply foreign law and how to justify deference to foreign courts and authorities: Joel R Paul, ‘The Transformation of International Comity’ (2008) 71 Law and Contemporary Problems 19. 79 See eu public international and procedural legal instruments such as Regulation (ec) No 44/2001 (Brussels i) and Regulation (ec) No 864/2007 (Rome ii) that provide a basis for the application of the home-state’s law, but the exception, which is often invoked, is seldom applied: Burkhard Hess, Thomas Pfeiffer, Interpretation of the Public Policy Exception as referred to in eu Instruments of Private International and Procedural Law (dg for Internal Policy, Legal and Parliamentary Affairs, 2011) 30–36, 43–45, available at http://www.eu roparl.europa.eu/RegData/etudes/etudes/join/2011/453189/IPOL-JURI_ET(2011)453189 _EN.pdf last visited 10 Feb 2017. 80 Miriam Saage-Maaß, Forging New Legal Ground: Why Families & Survivors of the Karachi Factory Fire Could Spell the End of Voluntary Corporate Responsibility, Business and Human Rights Resource Center (2016) available at http://business-humanrights.org/en/ forging-new-legal-ground-why-families-survivors-of-the-karachi-factory-fire-could-spell -the-end-of-voluntary-corporate-responsibility last visited 10 Feb 2017.

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the elaboration of prohibited conduct, or merely be about mandatory due diligence processes (such as a French proposal) that rely on civil society documentation and reporting for their activation (such as the uk Modern Slavery Act81).82 The European naps show that governments are struggling to define the laws and modes of liability that would hold business accountable for overseas wrongdoing.83 This state of affairs is unsatisfactory from the perspective of the ungp’s implementation, but also insofar as it reflects the extent of the internalisation and absorption by domestic legal orders of considerations of international legality as a standard for the application of domestic law. States have signalled that they intend to assess the gaps in domestic legislation with respect to human rights protection, and consider relaxing the limits on the extraterritorial application of domestic law given the frequency and likelihood of wrongdoing taking place in the context of overseas business.84 But to properly reconstruct this predicament, we need to both understand legality as comprising human rights protection imperatives, and deconstruct the underlying neo-liberal approach and its normative divider: shielding business from state scrutiny, on the one hand, and the state from the effects of its corporate nationals’ activities, on the other. Such that it both obscures the state’s sphere of influence over its corporate nationals, and diminishes the agency and culpability of corporate nationals for such activities. The way states account for overseas human rights harms and define the effects of such activities on the domestic rule of law and domestic subjects are of course critical to the approach they take to law enforcement.85 The position reflected in current approaches debases the normative legality of the human rights obligations of business and absolves the home-state from its responsibility and obligation to effectuate the regulation and compliance of business. ­Absent hard-law ex ante measures to define and assign liability to 81

82 83

84 85

See for a discussion of the role of civil society: core, Effective Reporting Under the Modern Slavery Act: A Civil Society Guide for Commercial Organisations on the Transparency in Supply Chains Clause (February 2016). For the apologetic rewarding of small steps perceived to go in the right direction see: De Felice and Graf (n 67) 59–60. Wettstein observes that states clearly appear to consider them as ‘imperfect obligations’ using Kant’s categories, which means they remain mere expectation of good conduct that are unspecific and opportunist in their implementation; Wettstein (n 4) 168. The Danish Government has passed the buck to the Council of Europe recommending it should lead on the issue of extraterritoriality; Danish nap (n 61) 15. See, Ascensio (n 41).

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prohibited conduct86 – by explicitly enumerating those acts that amount to ihrl violations and particularising the responsibilities and liabilities that can be incurred by business under domestic laws for their involvement in such acts – home-states will be unable to effectively regulate overseas business in line with a commitment to the ungp.87 That is, business will be left to free-ride while becoming vulnerable to involvement in criminal or otherwise outlawed activities with implications in domestic law.88 Therefore, the crucial task before home-states is identifying and particularising the effects of extraterritorial wrongdoing by business on the domestic law-based obligations of corporate actors. III

Rethinking the Regulation of Transnational Corporate Wrongs

Using the rule of law and legality approach to human rights protection discussed in the first section, this section redraws the material and geographic scope of home-state regulation by particularising the effects of internationally unlawful acts and facts on the home-state’s domestic legal order. To demonstrate the effects of corporate involvement in internationally unlawful acts on the company’s home-state’s legal order, it uses the lens of the third state responsibility law duty of non-recognition, codifying the inherent need of domestic legal orders (now part of customary international law) to ensure that unlawfully construed facts – including titles, rights and entitlements – do not alter the implementation of domestic law. Applied to overseas corporate wrongdoing, this regulatory perspective places the burden of ensuring nonrecognition of internationally unlawful acts and facts arising from its ­corporate 86

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Deva notes that the discussion of human rights responsibility is so weak that business are given the impression that ‘all of their human rights responsibilities are without any legal consequence’: Deva (n 8) 94. These critiques are recurrent in the works of leading publicists in the field and in civil society work. Of note are the insights of the Irish government’s consultation process, upon which I have also drawn: bhrrc, Ireland: Submissions to Consultation on National Action Plan on Business and Human Rights, available at http://business-humanrights.org/ en/ireland-submissions-to-consultation-on-national-action-plan-on-business-human -rights last visited 10 Feb 2017. icar and dhir’s baseline assessment template provides an instructive list of relevant domestic laws and institutions that should be included in the review of the coherence of policy and law on extraterritoriality mandated by the ungp. dihr and icar, National Action Plans on Business and Human Rights: A Toolkit for the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks (June 2014).

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­ ationals’ overseas operations on the home-state authorities. The need to n guarantee a certain standard of corporate conduct is potentiated by the need to avert against the legal risks arising from such activities to the company, the home-state’s market and its domestic legal order writ large. High-risk situations of structural illegality are considered for their being a case in point for the operationalization of these effects. From International Illegality to Transnational Invalidity The international legal doctrine of pacta sund servanda (good faith) is, as the icj affirmed, one of the ‘basic principles governing the creation and performance of legal obligations, whatever their source.’89 The imperative of good faith is both an obligation of states when complying with specific international law norms to which they have consented, as well as a meta-principle of the international relations in which ‘each of them [states] has confidence in reaching legal agreements to secure their own interest and to assist in attaining international legal order and stability.’90 In the international law of state respon­ sibility, good faith is sustained by a set of principles that govern the conduct of third party states vis-à-vis the wrongdoing with a focus on the most severe violations. This normative framework regulates both states’ complicity in and proximity to the most egregious international law violations: they are prohibited from becoming complicit through knowingly aiding or assisting wrongful acts,91 and expected to ensure the non-recognition as lawful of serious breaches of the peremptory norms of international law (jus cogens).92 What is more, actions and their perquisites that entail violations of peremptory norms are 89 90 91

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Nuclear Tests (New Zealand v France) Judgment [1974] icj Rep 457, para 49. McCorquodale (n 28) 297. Article 16, ilc Draft Articles on the Responsibility of States for International Wrongful Acts, in Yearbook of the International Law Commission year, vol ii (Part 2) page. See for a discussion of the relationship between due diligence and complicity; Sabine Michalowski, ‘Due Diligence and Complicity: A Relationship in Need of Clarification’ in Surya Deva, David Bilchitz (eds) Human Rights Obligations of Business (Cambridge: Cambridge University Press, 2013) 218. Many of the serious ihrl and fundamental international humanitarian law violations surrounding overseas business – e.g. modern slavery, forced labour, discrimination, torture and cruel and degrading treatment, and other basic rights of the human person – ­entail violations of jus cogens (ilc Draft Articles (n 91) 40–41) and are considered to be owed by all states to the international community as a whole: Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Judgment [1970] icj Rep, paras. 33–34. The state practice is broader than violations of jus cogens: International Law Association, Recognition/Non-Recognition Committee, Report, March 2014.

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invalidated ipso jure by operation of international law, and are expected to be deemed as such in the objective sense by international law-observing actors.93 Therefore, in the course of regulating their proximity to international wrongs through its public and private dealings, home-states assume the role of enforcers of international law.94 Non-recognition is also a meta-principle of domestic law, in the sense that national authorities use it as a criterion to ensure that when domestic law provisions are applied to extraterritorial predicate facts such as overseas business operations, they do not entail the recognition as lawful by the national system of such unlawful acts. National regulatory authorities that apply domestic private and public laws to corporate nationals (eg procurement, consumer protection, tax and anti-bribery and corruption laws95) are precluded from giving legal effect to unlawful facts and situations associated with their overseas operations. National authorities apply international law-based criteria of legality, consistently with the home-state’s public policy positions on the legal status of another authority’s actions under international law. This requirement of consistency is particularly firm when the home-state’s administrative law requires that they correctly assign rights, liabilities and responsibilities to business under domestic law. That is, the legal status – in terms of both ex ante (e.g. valid licensing) and ex post (e.g. end-use or user) legality – of the practices of other states in international law determines and can alter the application of the home-state’s domestic law to its corporate nationals.96 The domestic regulatory process of (international) law-abiding states97 demands that their domestic authorities refuse to give legal effect to rights 93

Alexander Orakhelashvili, ‘Peremptory Norms and Reparation for Internationally Wrongful Acts’, (2003) Baltic Yearbook of International Law 19, 26–30. See also, Christos L Rozakis, ‘The Law on Invalidity of Treaties’, (1974) 16 Archiv des Völkerrechts 2, 150–193. 94 McCorquodale (n 28) 297, 304. Kirsch denotes global legal pluralism as the reason for ‘full legitimacy’ not being granted by any one actor: Nico Kirsch, Beyond Constitutionalism. The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2010) 88. 95 See, core (n 81). 96 The principle of consistency between policy and the implementation of domestic law is in most cases uncodified. In the case of the eu, however, this principle features prominent in the Treaty of the eu, Art 21, Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992, Official Journal of the European Communities C 325/5, 24 December 2002. 97 Koehane denotes that in ‘liberal states’ law and politics must be viewed ‘as related dimensions […] of the same sphere’, adding that ‘law does not necessarily determine behaviour, but politics is conditioned by law’: Robert O Keohane, ‘Compliance with International Commitments: Politics Within a Framework of Law’, asil Proceedings (1992) 180.

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and titles accrued in the course of business activities that are constituted on the basis of the host-state’s internationally wrongful acts. Indeed, the non-­ recognition of such illegal perquisites is intended to protect against the effects of instability and uncertainty in the implementation of domestic law.98 That is, the invariable result of giving such titles and rights effects under domestic law99 is not only its implementation inconsistent with with public policy, including a commitment to the ungp, but also the potential implication of domestic subjects in such wrongful acts. Such understandings of the risks of deficient implementation of domestic law, with all their limitations, can potentiate a law-abiding home-state to further the regulation of its corporate nationals’ extraterritorial activities with the aim of upholding the effectiveness and integrity of its domestic legal order.100 In a world bounded by transnational rules, as Koh observes, political leaders cannot make foreign policy sensibly ‘without understanding how legislative, judicial and executive branches can and should incorporate international legal rules into their decision-making.’101 Home-states committed to their domestic rule of law, and concerned with the harms to which it may be exposed due to its nationals transnational activities, cannot but participate in the observance of international law. They are expected not only to assess the rights, gains and titles of business transactions in certain contexts, but must ensure that domestic authorities are instructed of the correct application of domestic law to such transactions,102 and that businesses are duly informed of the legal risks they may incur as a result of certain internationally-unlawful activities.103 98 99

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101 102 103

McCorquodale (n 28) 294. Pauwelyn defines ‘legal facts’ by contrast to ‘legal acts’ as having legal effects that stem from the application of a separate legal act to them, Joost Pauwelyn, ‘Is it International Law or Not, and Does It Even Matter?’ in Joost Pauwelyn, Ramses A Wessel and Jan Wouters (eds) Informal International Lawmaking (Oxford: Oxford University Press, 2012) 125, 153–155. See on the rule of consistency as a linchpin of the effectiveness of the domestic rule of law in the case of the eu: Patrick Muller and Peter Smolinski, ‘The Role of Law in eu Foreign Policy-making: Legal Integrity, Legal Spillover, and the eu Policy of Differentiation towards Israel’, (2016) Journal of Common Market Studies, 1–18. Koh (n 8) 2658. See for a discussion of the effects of legal facts, Pauwelyn (n 100) 154. Despite not featuring in the ilc Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001, corporations are not excluded from the ambit of international responsibility of states in toto, even if they are not acting on the name of or on instruction of the state: Karavias (n 29). Other models for shared responsibility rely on financial or other social considerations, and should be crucially distinguished from a legal necessity based approach driven by the rule of law needs of the home-state. Cf. World

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Transnational Wrongs under Domestic Law To operationalize a regulatory approach that accounts for the effects of transnational corporate wrongs on the home-state’s legal order, home-states should be made aware of and brought to clearly measure and define the interface between international law violations and conduct subject to regulation under existing domestic laws. In other words, home-states should be compelled to actively interrogate the consequences of the involvement of business in a hoststate’s legal system whose domestic law sanctions labour abuses or unlawful (including unregulated) exploitation of natural resources, and how the admission of such unlawful facts into the domestic legal order, in a manner that gives them legal effect and recognises them as lawful, can harm the effectiveness of domestic law.104 The question is then whether a home-state can tolerate or accept the effects of admitting and giving legal effect internationally unlawful facts and situations into its legal order as a result of its corporate national’s overseas dealings – given the implications of such admission for the incorrect implementation of domestic law-based disincentives for business misconduct. It bears noting that a home-state’s authorities can wrongfully recognise as lawful internationally unlawful acts in one of two ways: by omission or through commission. Recognition by omission can result from a home-state regulatory authority’s failure to assess the legal status of certain overseas business activities under relevant legal criteria from domestic and international law. For instance, regulators may fail to consider a parent-company’s involvement in overseas labour or land rights abuses through its subsidiary as unlawfullyobtained factors of production that may for the integrity of the company’s revenue streams;105 or they may default in scrutinising overseas business under domestic criminal law standards on illicit financial flows and proceeds of crime.106 Recognition through commission, on the other hand, could result Economic Forum, Shared Responsibility: A New Paradigm for Supply Chains (November 2015). 104 See for a discussion of the local options in responding to indirect involvement in abuses in Burma: Robert Stumberg, ‘Preemption & Human Rights: Local Options After Crosby v nftc’ (2000) 32 Law and Policy in International Business 109. 105 Procurement however is also precarious for being historically linked to the governmental policy of the day: Christopher McCrudden, ‘Corporate Social Responsibility and Public Procurement’, in Doreen McBarnet, Aurora Voiculescu & Tom Campbell (eds) The New Corporate Accountability: Corporate Social Responsibility and the Law (Cambridge: Cambridge University Press, 2007) 93. 106 For a proposal for statutory parent-based liability based on benefit see also Gwynne Skinner, ‘Rethinking Limited Liability of Parent Corporations for Foreign Subsidiaries’ Violations of International Human Rights Law’ (2015) 72 Washington and Lee Law Review 1769.

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from home-state regulatory authorities actively validating illegally procured or constituted (eg laundered or unregulated) titles, property rights, and revenue (eg tax107) obtained in the course of overseas business operations that are predicated on the host-state’s internationally unlawful acts, including in a manner that gives legal effect to an unlawfully constituted and maintained legislative regime either in the host-state’s domestic jurisdiction (e.g. oppressive land law regimes or exploitative migrant worker employment systems), or in foreign territory (e.g. an occupation administration privately profiting from the natural resources, business in the occupied territory). An inappropriate assessment of the legal regime and circumstances of production in such perilous human rights contexts risks a home-state not only defaulting in the regulation of overseas business but giving effect to their unlawfully obtained perquisites under its domestic law. The international law doctrines of non-recognition and invalidity offer an alternative perspective on the implementation of the ungp and what is at stake for home-states and businesses when it comes to regulation of transnational corporate wrongs. Some businesses would risk the revocation of revenue, titles and rights acquired in their overseas operations in the course of their regular tax audits, for instance. Other businesses could be held ‘accountable’ for ‘professional misconduct’ by public procurers, and subject to review by risk-aversive financial and investment institutions. National consumer protection authorities may be required to review a company whose activities either fall afoul of its own code of conduct (at risk of amounting to commercial deceptive practices), or for marketing goods produced overseas with unlawfully-­obtained factors of production (eg labour abuses).108 These legal risks can potentiate home-states’ re-understanding of the effects of the transnational activities of corporate nationals on their legal order. Most home-states’ approaches to the regulation of transnational corporate wrongs neither account for the indirect consequences of human rights violations in such cases on the domestic legal order, nor for the liabilities and responsibilities of corporate nationals under domestic law. Investors and 107 See on French tax law and the reach of French tax authorities’ review processes to entities outside France on which the parent-company is dependent, or which it controls: Ascensio (n 42) 9. 108 See, e.g., Who Profits, Made in Israel: Agricultural Exports from Occupied Territories (April 2014). Profundo, European Trade and Investment Relationships with Companies in Israeli Settlements in Occupied Palestinian Territories: The United Kingodm (2009). Jonathan Molony et al., From Settlement to Shelf: The Economic Occupation of the Syrian Golan (Majdal Shams: Al-Marsad, 2009).

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i­nvestment institutions committed to a socially responsible or otherwise risk aversive practice;109 financial institutions’ liabilities for laundering unlawfully-­ obtained revenues and proceeds of crime;110 and consumers’ subjection to deceptive commercial practices111 where a product originates in unlawful circumstances of production.112 A multiplicity of interfaces between domestic and international law in the transnational legal process, where a home-state’s need to uphold its public policy positions on the legal status of a host-state’s activities translate into legal risks for corporate actors under their home-state’s domestic laws. In other words, the implementation of the ungp in line with an existing commitment to observe international law can lead to home-states’ internalisation of the ungp through its articulation of prohibitive acts that entail corporate nationals’ involvement in transnational corporate wrongs. The proposition that underpins this regulatory perspective is that the implementation of the ungp relies on the ability of a home-state to pre-empt through ex ante measures, the activities of their nationals that are harmful to its legal order; by concretely assessing, qualifying and managing such legal risks and articulating prohibitive acts through specific implementing rules for 109 Some pension and sovereign funds as well as banks, account for ‘ethical standards’ and international law violations in their investment risk assessments. See also, Facing Finance, Dirty Profits 4: Report on Companies and Financial Institutions Benefiting from Violations of Human Rights (2016). Norway People’s Aid, Dangerous Liaisons: Norwegian Ties with the Israeli Occupation (May 2012). Dutch Association of Investors for Sustainable Development (vbdo), Dutch Institutional Investors and Investments Related to the Occupation of the Palestinian Territories (February 2014). 110 See e.g. French law for the supervision of banks; Ascensio (n 42) 10. Norway’s Sovereign Fund disinvestment based on its Ethical Guidelines, which incorporate international law; Recommendation on Exclusion from the Government Petroleum Fund’s Investment Universe of the Company Kerr-McGee Corporation, Letter to the Ministry of Finance from the Petroleum Fund’s Council on Ethics, dated 12 April 2005. 111 Consumers are interested in the quality of products and how the goods they consume are produced, and by extension in labour conditions and other human rights issues related to production. Consumer concerns create leverage that companies can use to start a conversation on human rights with their franchisees and licensees. See e.g., the eu’s labelling guidelines based on eu consumer protection law intended to label such goods correctly, short of at this point banning the import of all settlements goods: Interpretative Notice on Indication of Origin of Goods from the Territories Occupied by Israel since June 1967, Brussels, 11 Nov 2015, C(2015) 7834. 112 us law prohibits the importation of merchandise mined, produced or manufactured, wholly or in part, in any foreign country by forced labour: S 307 of the Tariff Act of 1930 (19 u.s.c. § 1307).

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­different domestic laws. Such underexplored (vertical) internalisation processes give home-states a chance to refine their understanding of the effects of transnational activities by domestic subjects on domestic law, as well as ultimately contribute to the generation of a practice that makes up for the indeterminacies and open-endedness of international law in this area.113 Structural Human Rights Violations and Immitigable Harm Overseas business operations carried out in contexts where human rights violations are of a structural and systematic character, by virtue of being sanctioned in law or administrative practice of a host-state, are emblematic of the risks entailed by transnational corporate wrongs under a home-state’s laws.114 Hence, high-risk situations of human rights abuses – considered risky from the perspective both of the vulnerable population and of the business operating in the abusive foreign jurisdiction – are also the most promising overseas contexts for operationalizing this regulatory paradigm.115 Critically, businesses operating in such contexts are faced with concerns about exacerbating and fuelling on-going conflict.116 The failures to adequately regulate transnational business operations in such contexts are emblematic of the conceptual and operational protection gaps that exist in both relevant international law and in home-states’ regulatory orders. An obvious gap is seen in the fact that no category of immitigable harm exists under the ungp to account for the egregious nature of such situations. In fact, businesses often nonchalantly adhere to the laws of hoststates, with which they are effectively unable to negotiate noncompliance, in a

113 See e.g. the following statement: ‘Reaffirms the urgent need to […] address the legal problems resulting from the extra-territorial dimension […] and the related uncertainty as to where the liability for human rights violations lies’ European Parliament Committee on Foreign Affairs Rapporteur Ignazio Corrao, Draft Report on Corporate Liability for Serious Human Rights Abuses in Third Countries (2015/2315(INI)) para 2. Zerk observes that ‘parent-based’ extraterritorial regulation of the wrongdoing of subsidiaries is not new, e.g. us Foreign Corrupt Practices Act (fcpa) 15 usc ss 78dd-1: Zerk (n 39) 108–109. 114 For a list of these and other factors see, Shift, Business and Human Rights Impacts: Identifying and Prioritising Human Rights Risks (January 2014) 14. 115 The potential impact of corporations on human rights is perceived as a ‘risk’, which can be addressed through ‘prevention or mitigation’, whereas the actual impact ‘should be a subject of remediation’: ungp (n 16) 18. 116 Centre for Research on Multinational Corporations (somo), Risks and Challenges around Human Rights and Conflict (December 2015) 2–3.

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­manner that entails their proximity and involvement in unlawful acts.117 Given the source and irremediable nature of the wrongdoing in such cases, businesses have no option of conducting their operations in such contexts diligently and in line with the ungp. That is, the harms which such business operations entail are immitigable. Such cases necessitate that home-states undertake a coherent review of their corporate nationals’ dealings with a view to their effective regulation. To this end states are obligated to (1) analyse and take heed of the character of prominent host-states’ activities; (2) issue informed compliance measures to corporate nationals about the liabilities and responsibilities they would incur for transnational activities in certain contexts; and (3) instruct national regulatory authorities on the correct implementation of domestic law, in line with said international law assessments.118 To ensure the effectiveness of such measures, home-states should proactively review the high-risk third country contexts where their corporate nationals operate or are likely to become involved resulting in the issuance of advisories on specific country situations and their abusive legal and institutional practices as they relate to business dealings (eg land, employment, discrimination), and guidance notes tailored to specific industry sectors.119 In some instances home-states would be justified and even legally obliged, under domestic law, to assign strict liability, and perhaps even prohibit as such certain dealings with specific authorities in a given geographical context to avoid giving effect to (and wrongfully recognising as lawful) the

117 For example,, in the context of interstate relations with Israel there is a growing awareness amongst third home-states that all legislative acts predicated on the entitlement of Israel to exercise sovereign authority in occupied territory – cannot be complied without recognising that Israel is entitled to exercise powers reserved for sovereigns. On the solesovereign paradigm Israel uses to govern occupied Palestinian territory see Orna BenNaftali, ‘PathoLAWgical Occupation’, in O Ben-Naftali (ed) International Humanitarian Law and International Human Rights Law (Cambridge: Cambridge University Press, 2012) 129. 118 See e.g., Al-Haq, Language to be Included in a Template for States’ National Action Plans (naps) for the Implementation of the United Nations Guiding Principles on Business and Human Rights (ungps), 20 Feb 2014, available at http://www.alhaq.org/images/stories/ PDF/2012/Al-Haq_Template_for_States_National_Action_Plans.pdf last visited 10 Feb 2017. 119 See, e.g., ict sector requirements for checks on end-use or the extractives industry obligation to obtain consent from communities, importers being required to screen supply chains for serious rights abuses such as child labour, bonded labour, and servitude.

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kind of structural and systemic violations that contribute to immitigable ex ante120 and ex post121 harms to human rights. Considerable headway in mending the governance gap for overseas business by using existing elements of global north based home-states’ domestic legal framework to constrain and penalise such transnational corporate wrongs. Although the implementation of legal and policy instruments addressing contexts of large-scale human rights abuses remains piecemeal, given their largely political and social drivers, several precedents exist.122 Such measures were used in relation to the abuses that took place during the systematically discriminatory regimes in Northern Ireland and South Africa,123 and more recently in relation to situations of foreign occupation and de facto administration that entail serious breaches of international humanitarian law, the law on the interstate use of force, and the right to self-determination of peoples (e.g. in Western Sahara, Palestine and Crimea).124 Particularly instructive 120 Some businesses have become aware of the structural character of certain abuses, such as the invalidity of laws that sanction unlawful practices: Deutsche Bank’s decision to freeze plans to create 250 new jobs in North Carolina following enactment of the antilgbt law: Jon Kamp, Valerie Bauerlein, ‘Deutsche Bank Freezes North Carolina Expansion, Citing Transgender Law’, Wall Street Journal, 12 April 2016, available at http://www .wsj.com/articles/deutsche-bank-freezes-north-carolina-expansion-citing-transgender -law-1460469042 last visited 10 Feb 2017. 121 See e.g. selling any technology or services to an abusive regime; bhrrc, Amesys lawsuit (re Libya) , available at http://business-humanrights.org/en/amesys-lawsuit-re-libya -0#c18496 last visited 10 Feb 2017 and Qosmos investigation (re Syria), available at http:// business-humanrights.org/en/qosmos-investigation-re-syria?page=1 last visited 10 Feb 2017. See also the example of G4S providing and servicing control systems for Israeli prisons unlawfully detaining Palestinians from occupied territory: Lawyers for Palestinian Human Rights (lphr) & G4S plc: Fina Statement After Examination of Complaint, uk National Contact Point for the oecd Guidelines for Multinational Enterprises (March 2015). 122 See, e.g., us Reporting Requirements on Responsible Investment in Burma, 23 May 2013. See, for a critique of these standards, Human Rights Watch, Burma: Investors Need Robust Rights Safeguards, 24 May 2013, available at https://www.hrw.org/news/2013/05/24/ burma-investors-need-robust-rights-safeguards last visited 10 Feb 2017. 123 Global Sullivan Principles of Social Responsibility, 1 January 1999. The Macbride Principles, by Father Sean McManus, President, Irish National Causus, December 1997. See on the adjudication of the Massachusetts ‘Burma Law’ which sought to replicate antiApartheid measures: Crosby v National Foreign Trade Council, 120 S. Ct. 2288 (2000). 124 European Council on Foreign Relations (ecfr), ‘eu member state business advisories on Israeli settlements’, 2 November 2016, available at http://www.ecfr.eu/article/eu_mem ber_state_business_advisories_on_israel_settlements last visited 20 Apr 2017. Denmark,

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are the advisories that were issued by European governments warning their businesses of the legal risks entailed by their operations under Israel’s occupation of Palestinian territory and Morocco’s occupation of Western Sahara – whose authority cannot be recognised as lawful and whose administrative and legislative acts in the occupied territory are invalidated by operation of international law (ipso jure invalid). These signals of a growing awareness amongst European countries of the effects of their corporate nationals’ activities in these ‘high-risk business environments’ on their legal orders, have also propelled companies to revise and terminate such dealings.125 Situations of structural human rights violations offer home-states a landscape of normative power-based enforcement opportunities for the regulation of their corporate nationals’ extraterritorial activities in line with international law.126

Concluding Remarks: Rethinking Extraterritorial Regulation

The international law framework for bhr relies on states to operationalise business’s obligations, and the discussions among advocates and experts in the field shows a great eagerness to produce ‘new’ legislative and administrative measures to control corporate actors. The problem is that home-states view Norway and Sweden have warned their business of the risks of operating in Western Sahara. The Danish Parliament has called for its companies not to trade with Western Sahara: Aleksandra Eriksson, Danish mps warn firms not to trade with Western Sahara, eu Observer, 3 June 2016 available at https://euobserver.com/nordic/133686 last visited 10 Feb 2017. See on Crimea, Information Note to eu Business Operating and/or Investing in Crimea/Sevastopol, 12078/2/14 REV 2, Brussels 11 June 2015. 125 ecfr, eu Differentiation and Israeli Settlements (June 2015). Krassimiar Nikolov, Ashton’s Second Hat, Diplomacy (2014). See also, Valentina Azarova, ‘eu Legal House-Keeping’, Open Democracy, July 2013. Muller and Smolinski (n 101). 126 Since the cjeu’s 10 December 2015 judgment to annul the eu Morocco Association Agreement’s application to Western Sahara (Case T-512/12, Frente Polisario v Council, judgment of 10 Dec 2015) at least half a dozen eu private actors withdrew their activities from the territory given Morocco’s structural wrongdoing. See for news stories about the decision since 10 Dec 2015 on Western Sahara Resource Watch website, http://www.wsrw.org/. Recent development have also led the Netherlands to annul and then condition its bilateral social security cooperation agreement with Morocco on Morocco’s agreement to exclude Western Sahara and Moroccans that reside in Western Sahara from its scope of application. For the decision of the Dutch government see https://www.rijksoverheid.nl/docu menten/kamerstukken/2016/06/05/kamerbrief-bilateraal-verdrag-met-marokko, last visited 10 Feb 2017.

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their obligations to regulate extraterritorial business through the limited ungp and ihrl frames. The result has been that the extraterritorial activities of business domiciled in the global north have been placed largely outside the bounds of illegality, in terms of both international and domestic law. However, the bhr framework and emerging practice have overlooked an area with the potential to be developed so as to better implement the ungp: the domestic corporate regulation machinery and normative attachments that already exist in many business’s home-states in the global north. The transnational legal process-based perspective reviewed by this chapter rethinks and to some degree suggests ways to remedy the limits of ihrl in this regulatory domain. This approach analyses the home-state’s system of selfregulation, so as to identify the ways in which its corporate nationals’ overseas dealings may cause the state to admit into its legal order predicate facts based on internationally unlawful acts, which confront the state with unacceptable harm to its legal order. The ability of law to address these harms depends on the extension of the application of existing domestic legal rules and normative commitments (including the public policy commitment to implement the ungp) through the articulation of correlative aversive attachments. Since law is a product of differential awareness that is negotiated into rules, it points to understandings and attachments that pre-exist these rules. Such understandings and attachments are the precursors to a commissive course of action to avert against previously unheeded legal risks and effects on the domestic legal order (which in our case result from a domestic subject’s extraterritorial activities).127 A regulatory perspective that elaborates these understandings and attachments by extending their application to new relevant bodies of (extraterritorial and predicate) fact can, moreover, lead to the reconstruction of political intent, and hence to the improved regulation of overseas business activity.128 Beginning with the case of business activity in high-risk human rights situations in abusive host states, home-states could provide a statutory basis to reverse the presumption that a business must comply with a host-state’s laws, and necessitate the revision or termination of certain transnational dealings and activities by corporate nationals for fear of breaching 127 For the understanding of the commitment that flows from the illocutionary effect of speech acts see John R Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969). 128 On the limits of political intent even in the starkest cases, see Canada’s failure to reign Talisman in when the latter was involved in dealings with the Sudanese government: Stephen J Kobrin, ‘Private Political Authority and Public Responsibility: Transnational Politics, Transnational Firms and Human Rights’ (2009) 19 Business Ethics Quarterly 349.

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their home-state’s laws.129 A company’s obedience to its home-state’s domestic laws can further the socialisation of businesses130 and limit if not deter their instrumental and calculated use of human rights law as self-legitimating discourse.131 The normative premises that underpin current home-state regulatory approaches to the implementation of the ungp would be advanced by a process in which home-states’ regulation of transnational corporate wrongs is activated, implemented, and re-exported back to international law, as well as horizontally transposed by other domestic jurisdictions.132 The particularisation and internalisation of international legal criteria by home-states under a rubric of internal legal necessity is a case-in-point of a ‘vertical’ transnational legal process that is the basis for deep-seated obedience to international law norms.133 By basing regulatory measures on internalised norms, home states would quell concerns that the measures would flout their imperative of ensuring non-interference in the host-state’s affairs; and, given their basis in internal legal necessity (and not strictly speaking the observance of international law), stand a fair chance of being perceived and accepted by the host-state and its subjects as acts of peer enforcement (as opposed to being rejected as coercive measures).134 The deficiencies in the regulation of transnational corporate operations discussed in this chapter can be seen as symptoms of a broader malaise, in which a key feature of globalization is the freewheeling behaviour by businesses domiciled in the global north that contribute to and benefit from conditions of social and economic inequality in the global south. The proposed regulatory framework, which operationalises existing domestic legal processes that incorporate criteria of legality enshrined in international law, would appropriately 129 On the requirement to use contractual responsibility see e.g. James Ghathii, Ibironke T Odumosu-Ayanu, ‘The Turn to Contractual Responsibility in the Global Extractive Industry’ (2016) 1 Business and Human Rights Journal 69. 130 Explanatory Memorandum CM/Rec(2016)3 of the Committee of Ministers to member states on human rights and business, 1249 Meeting, 2 March 2016, Section iii. 131 International human rights law is being ‘hijacked’ by companies as accessorial considerations that can further legitimacy and reputational wants, without a consequential edge. See e.g., Rights and Accountability in Development, Principles Without Justice: The Corporate Takeover of Human Rights (March 2015). 132 Koh (n 11) 746. 133 Harold Hongju Koh, ‘Bringing International Law Home’, (1998) 35 Houston Law Review 623. 134 See Koh (n 7) 2649.

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chapter 9

Imagining People’s Tribunals as the Promoter of Human Rights Regina Menachery Paulose Abstract People’s Tribunals have become an increasingly used tool in response to the power imbalances between citizens and governments. This power imbalance has been created as a result of dominant government narratives, which silence minority or alternative viewpoints on the same or similar issues. People’s Tribunals are movements created by citizens, which integrate both local and international participants to take human rights from the abstract level of treaty provisions to a reality of victim’s needs. Unlike the tribunals within a formalised justice system, which are through various means to various degrees controlled by the state, People’s Tribunals allow citizens to freely organise themselves and discuss issues without being silenced or imposed a specific narrative. In a globalised world, the narratives of victims and survivors of crimes has become a cornerstone in allowing other movements to raise the prospect of justice. People’s Tribunals movements bring together various factions of society so that people are united in an alternative narrative to the one held by the state. This chapter explores the concept of People’s Tribunals in a globalised world and specifically looks at the Iran Tribunal and the United Kingdom Child Sex Abuse People’s Tribunals as two different versions of a People’s Tribunal which were recently completed.

Keywords People’s tribunal – grassroots movements – ukcsapt – Iran Tribunal – impunity– justice

* Chair of the Steering Committee for the uk Child Sex Abuse People’s Tribunal. The author would like to thank the members of the ukcsapt for their support.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004346406_011

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Introduction In 2014 a group of individuals, including survivors and victims of child sex abuse, gathered together to form a People’s Tribunal to address rampant impunity in the United Kingdom towards child sex abuse perpetrators. The idea of a People’s Tribunal was discussed and debated until it became a reality for survivors and victims in 2015. The United Kingdom Child Sex Abuse People’s Tribunal (ukcsapt) is one of several models of People’s Tribunals that have occurred since 1960. People’s Tribunals have become a growing alternative response to the power imbalances between citizens and governments, which prevents justice from being properly dispensed. People’s Tribunals are movements created by citizens, which integrate both local and international participants to take human rights from the abstract level of treaty provisions to a reality of victim’s needs. Unlike the tribunals within a formalised justice system, which are through various means to various degrees controlled by the state, People’s Tribunals allow citizens to freely organise themselves and discuss issues without being silenced or imposed a specific narrative. In a globalised world, the narratives of victims and survivors of crimes has become a cornerstone in allowing other movements to raise the prospect of justice. Globalisation allows people of different backgrounds to see that they are connected in their struggles and share the same basic human rights. Examples of this can be seen in the ‘Global South’ where there is a reliance on ‘bottom-up social movements and transnational coalitions, and on political spaces and pragmatic opportunities offered by the co-existence of plural and fragmented legal orders to frame innovative human rights strategies.’1 People’s Tribunals bring together various factions of society so that people are united in an alternative narrative to the one held by the state. The chapter begins with a brief discussion of the current human rights landscape. As a next step, the history of People’s Tribunals and their definitional contours are discussed. This section also distinguishes People’s Tribunals from other judicial mechanisms that have emerged. The next section examines how People’s Tribunals have been used to challenge existing power structures and the response to those challenges. Two notable examples are analysed, the Iran Tribunal which concluded in 2012 and the ukcsapt which concluded in 2016. Against this background the final section discusses the question central to this 1 Jeremy Perelman, ‘Transnational Human Rights Advocacy, Clinical Collaborations, and the Political Economies of Accountability: Mapping the Middle’ (2013) 16 Yale Human Rights & Development Law Journal 89, 106.

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volume, namely can People’s Tribunals been seen as a more accessible method of incorporating human rights and justice in a globalised landscape. I

The Current Human Rights Landscape

It is important to briefly turn our attention to the current landscape of human rights in order to understand why a People’s Tribunal, an alternative judicial mechanism, has been necessary. In the status quo a rupture between civil society’s notion of human rights and a state’s notion of human rights exists. The division is caused by the power the state has over interpreting human rights and its control over implementation of human rights in national systems. Human rights could be regarded as constraining mechanisms because they can serve as a check on those who abuse power. However in reality, those who abuse power, and in particular the state as the main subject of international law and therefore standard setter in the area of human rights, are the ones with the ultimate power to constrain or promote human rights that are afforded to citizens. There are examples that can be used to show how human rights are constrained and utilised by those with power, even though they can serve to check those with power. The first example is situated within the realm of accountability. ‘Accountability has become a central concern of the international human rights movement.’2 This is evident by the development and continuing emphasis on the treaty body system, the jurisprudence of the ad hoc tribunals, the European Court of Human Rights, the International Court of Justice, and the International Criminal Court. Accountability from a human rights perspective refers to the relationship of Government policymakers and other duty bearers to the rights holders affected by their decisions and actions. Accountability has a corrective function, making it possible to address individual or collective grievances, and sanction wrongdoing by the individuals and institutions responsible.3 2 Aryeh Neier, The International Human Rights Movement: A History (Princeton: Princeton University Press, 2012) 259. 3 Center for Economic and Social Rights and un Office of the High Commissioner for Human Rights, Who Will be Accountable? Human Rights and the Post 2015 Development Agenda (2013) ix, available at: http://www.ohchr.org/Documents/Publications/WhoWillBeAccountable.pdf (last visited 10 Feb 2017).

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It also has a ‘preventative function’ so that it builds upon and can adjust to what is not working.4 Unfortunately, the notion of accountability is constrained by political will. The responsibilities to create, determine, and enforce human rights are entirely within the state’s purview. This means that the state is the sole arbiter of what is just and unjust. It also means that solutions to violations are top down approaches whereby the state holds the power to decide if those particular human rights are worthy of protection. Human rights, in essence, become moving targets of the state’s whims. This is not the proper way to approach justice and human rights. David Kennedy, Professor at Harvard Law, succinctly notes, By defining justice as a relationship to the state, rather than a condition in society, human rights can distract our attention from background norms and economic conditions which often do far more damage. Perhaps most disturbingly the international human rights movement often acts as if it knows what justice means, always and for everyone – all you need to do is adopt, implement, and interpret these rights. But justice is not like that. It must be built by people each time, struggled for, and imagined in new ways.5 Professor Kennedy’s analysis highlights another tension in the human rights area, which relates to the fact that the human rights system itself is built in an inaccessible manner. Due to the high complexity and level of abstraction at which formulation and interpretation of human rights is conducted by states, civil society grassroots organisations often have difficulties to get a clear picture of the basic rights they may have under international and in many cases – national law. Unfortunately the people who need to understand and protect their rights the most are excluded from the international human rights movements in many cases.6 The specific examples of the Iran Tribunal and the United Kingdom Child Sex Abuse People’s Tribunal are examples of what kinds of 4 Ibid. 5 David Kennedy, ‘The International Human Rights Regime: Still Part of the Problem?’ in Rob Dickinson, Elena Katselli, Collin Murray, and Ole Pederson (eds) Examining Critical Perspectives on Human Rights (Cambridge: Cambridge University Press, 2012) 25. 6 James Ron, David Crow, and Shannon Golden, ‘The Struggle for a Truly Grassroots Human Rights Movement’ Open Global Rights, 18 June 2013, available at: https://www.opendemoc racy.net/openglobalrights/james-ron-david-crow-shannon-golden/struggle-for-truly -grassroots-human-rights-move (last visited 10 Feb 2017).

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alternative and non-traditional mechanisms can be created to provide justice when victims have no recourse in state justice systems. Turning to the mechanism of People’s Tribunals the next section highlights how People’s Tribunals challenge these traditional structures preventing cooptation of particular issues by one single party. It encourages collective action across all sectors of society and most importantly minimizes the silence on issues of justice. Therefore, People’s Tribunals can aptly be thought of as ‘counter public spheres’.7 II

People’s Tribunals: New Days of Reckoning

People’s Tribunals are a result of strong peaceful grassroots movements within society. Those who share a common interest in discussing a legitimate human rights problem, which has not been adequately addressed by the state, create these movements. ‘[C]ollective action is needed at every level if human rights are to make a real difference. Grassroots organizing is necessary if people are to be able to define more often than not the wrongs people suffer benefit national and global elites.’8 In some cases the problem cannot be handled in a formal judicial system due to political considerations or a technical legal rule preventing the issue from being raised. Some recent examples highlight the tension between human rights and justice in traditional structures at the international arena. The ‘no’ vote or ‘veto’ by Russia to prevent the formation of an international tribunal to determine culpability in the downing of flight mh 17 highlights how one state could determine the course of justice for many victims.9 The racial tensions in the United States between minorities and law enforcement continue to highlight discrepancies between individual rights within the national judicial system. Generally, People’s Tribunals focus on significant human rights issues.10 The main goal of a People’s Tribunal is to shed light on a historical or ongoing issue 7

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Kate Nash, ‘Is it Social Movements that Construct Human Rights?’ in Donatella della Porta, Mario Diani (eds) The Oxford Handbook of Social Movements (Oxford: Oxford University Press, 2015), 746, citing Nancy Fraser. Ibid, 750. Carol Williams, ‘Russia Uses u.n. Veto Power to Scuttle Tribunal for MH-17 Downing’ Los Angeles Times, 29 July 2015, available at http://www.latimes.com/world/europe/la-fg -russia-malaysia-airlines-downing-tribunal-veto-20150729-story.html (last visited 17 Feb 2017). Andrew C. Byrnes and Gabrielle Simm, ‘Peoples’ Tribunals, International Law and the Use of Force’ (2013) 36 University of New South Wales Law Journal 711.

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to help foster discussion, create a legitimate record of evidence, and suggest constructive solutions to the issues raised. People’s Tribunals create space for civil society to engage in discourse and produce a legitimate alternative narrative. People’s Tribunals also increase awareness of an issue and by taking up abstract laws and rights and provides them with context making them concrete and relevant for society. People’s Tribunals are unique establishments. Each Tribunal addresses specific issues defined by those who create it. Each Tribunal also has its own rules and procedures which govern it. In some cases the rules and procedures mirror that of the legal system in the country of where the issue arises. In other cases, the procedure is a mix between the international legal system and a general fair practice that allows all participants to understand how the process will work. Before discussing the various forms of some People’s Tribunals, there are some general features which should be highlighted. These features emerge from the experience of those Tribunals that already completed their work. They underscore the commonalities that the Tribunal’s share despite addressing different topics in different countries or towards different groups. First, they use the language of justice from everyday settings. The plain language that is used is created by the many different actors that are involved in the process of creating the Tribunal. As the examples below will highlight, victims, survivors, lawyers, and activists work together to create the mission, purpose, and language of the Tribunal, ensuring that it is accessible to the groups they are providing justice to. Although they borrow technical terms such as ‘tribunals’ and utilise ‘judges’ and in some cases ‘juries’ and they issue ‘findings’ or ‘verdicts’ they are still defined in plain terms. Second, they deviate from the traditional judicial mechanisms in that they are not contentious or adversarial. Rather, they are meant to discuss the central issue raised and provide a narrative alternative to the dominant one that may or may not exist on the issue. Of course, the majority of the People’s Tribunals thus far are heavily victim/survivor centred which, depending on the jurisdiction or crime, can be similar to prosecutions within criminal justice systems. Third, People’s Tribunals in most cases seek to indict the nation state for a failure or legal breach that it has committed or participated in. These indictments are done in a peaceful and constructive manner. They are not traditional indictments where a warrant is issued or charges are made, but focus on a central question that will be addressed. Finally, unlike formal justice systems which gain power through the state and whose judgments are recognised as binding, the legitimacy of People’s Tribunals comes from the people themselves and can exist independently of a state’s authority or state’s recognition. In most cases, the state has not endorsed the findings of the People’s Tribunal.

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It is important to note quickly that People’s Tribunals are not Truth Commissions. Truth Commissions have been defined as bodies which are ‘(1) focused on the past; (2) set up to investigate a pattern of abuses over a period of time, rather than a specific event; (3) temporary body, with the intention to conclude with a public report; and (4) officially authorized or empowered by the state.’11 The last distinction is the most important, because People’s Tribunals are not empowered by the state, but rather, set up in response to the state’s narrative of a contentious human rights issue. In addition it is suggested that Truth Commissions are special in that it is ‘their intention of affecting social understanding and acceptance of a country’s past, not just resolve specific facts.’12 One of the most popular examples is the Truth and Reconciliation Commission of South Africa, which was set up by the state (as in most cases of the Truth and Reconciliation structure) and went as far as to grant amnesties to perpetrators who participated in crimes in exchange for full public testimony.13 There are many examples and formats of People’s Tribunals. One of the most commonly discussed versions of a People’s Tribunal is the International War Crimes Tribunal (Russell Tribunal) sponsored by Bertrand Russell. This Tribunal, held in the second half of the 1960’s, focused on the impact of the us policy in Vietnam.14 Another Russell Tribunal was held in 1976 to address human rights violations in Latin America. These Tribunals became the inspiration behind the current and ongoing Russell Tribunal on Palestine, which seeks to ‘reaffirm the supremacy of international law as the basis for a solution to the Israeli Palestinian conflict.’15 The Russell Tribunal is not without criticism. While some consider it to have public influence on matters relating to Palestine,16 it has been termed a ‘kangaroo court’ by others in reference to the ongoing issues between Israel and Palestine. 11

Pricilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd ed (New York: Routledge, 2002) 11. 12 Ibid. 13 See Truth and Reconciliation Commission South Africa official website: http://www .justice.gov.za/Trc/legal/index.htm (last visited 10 Feb 2017). 14 Bertand Russell Vietnam War Crimes Tribunal, information available at http://911review .org/Wget/www.homeusers.prestel.co.uk/littleton/v1tribun.htm (last visited 10 Feb 2017). 15 Russell Tribunal on Palestine, Information about this particular Russell tribunal can be found at http://www.russelltribunalonpalestine.com/en/about-rtop (last visited 10 Feb 2017). See also the general website of the Bertrand Russell Peace Foundation: http://www .russfound.org/RToP/RToP.htm (last visited 10 Feb 2017). 16 ‘Guilty! Russell Tribunal Condemns Obama, Poroshenko, “War Crimes” in E. Ukraine.’ Russia Today, 13 Sept 2014, available at https://www.rt.com/news/187584-russell-tribunal -obama-ukraine/ (last visited 10 Feb 2017).

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Another type of a People’s Tribunal was created in 1979 by Lelio Basso, which was modelled upon the Russell Tribunal. The Permanent People’s Tribunal (ppt) is part of the international section of the Lelio Basso Foundation.17 The ppt has had 36 rulings since its inception. These rulings have addressed various issues around the world. One of the most recent issues that the ppt body addressed was the Bhopal Agrochemical Tragedy in India which killed approximately 8,000 people and poisoned thousands more. This ppt was created to address the crimes committed by specific actors who have continued to elude justice and cannot be held accountable for suffering resulting from their actions in traditional judicial fora.18 Another ppt which was formed addressed violations by the Canadian Mining Industry. This ppt released its judgment in December 2014.19 Another recent example is the ppt on Sri Lanka which discussed the ongoing issue surrounding the crimes committed against the Tamils.20 The ppt’s verdict has propelled further conversation and dialogue regarding the complicity of various actors and the verdict has been translated in at least two more languages for wider readership.21 As will be discussed in the next section, there are now other forms of unique and independent People’s Tribunals that are forming. They are modelled in a manner to allow victims to discuss and educate society on the horrors suffered. They also create a safe space to discuss the issue amongst a supportive community of survivors/victims, a community of interested activists and academics, as well as other members of society who are interested in addressing the injustices that transpired. As mentioned above, People’s Tribunal’s do not have formal legal authority like a court of law. Nevertheless, these bodies do utilise legal standards and rules of procedure. Interestingly, the standards and rules of procedure may emulate domestic law, international law, or be a mix of both systems. However these standards and legal rules of procedure are drafted for and unique to each People’s Tribunal. The language used by People’s Tribunals can easily 17 18 19 20

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Lelio and Lisli Basso Foundation, International Section, ‘Introduction’ at http://www .internazionaleleliobasso.it/?page_id=207&lang=en (last visited 10 Feb 2017). The Permanent People’s Tribunal on Agrochemical Corporations official website: http:// www.agricorporateaccountability.net/en/page/general/20 (last visited 10 Feb 2017). Permanent People’s Tribunal Session on Canadian Mining Industry official website: http://www.tppcanada.org/presse/communiques/?lang=en (last visited 10 Feb 2017). Bruce Haigh, ‘Tribunal Delivers Sri Lanka’s Guilty Verdict’ Canberra Times, 2 Jan 2014, available at http://www.canberratimes.com.au/comment/tribunal-delivers-sri-lankas -guilty-verdict-20140101-305zf.html (last visited 10 Feb 2017). See, People’s Tribunal on Sri Lanka official website: http://www.ptsrilanka.org/ (last visited 10 feb 2017).

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lend itself to confusion. Therefore, there are drawbacks that are worth discussing before moving on to two recent examples of People’s Tribunals. First, the language used by People’s Tribunals can be confusing to those who automatically equate the same language with that of a formal judicial mechanism. As a result, society may doubt the legitimacy of People’s Tribunals because it is not sanctioned by the state and it may be viewed as a farce or ruse to manipulate people into believing it has power. Second, the language and the structure of People’s Tribunals can be seen as subversive because it often represents a minority viewpoint on an issue. As a consequence, People’s Tribunals may encounter resistance from society. For the most part People’s Tribunals are independent and therefore the idea of them being a subversive entity is furthered. This in turn can detract from the goals of promoting human rights discourse. Despite all difficulties, the role and contribution of People’s Tribunals should not be underestimated. For those who believe in democratic principles, People’s Tribunals are true expressions of freedom of speech and freedom of expression. People’s Tribunals raise civic participation, engage cross sections of society, raise awareness on various issues, foster healing, and are a model of peaceful engagement. It is important to note that the success of each People’s Tribunal is hard to measure precisely. However, in many cases the mere ability of the Tribunal to raise awareness on a particular issue that was silenced for decades can already be viewed as a tremendous success. In the next section we take a closer look at the functioning and success of two People’s Tribunals. This allows a better appreciation of the contribution of People’s Tribunals to the promotion of justice and containment of state power in the final section of this chapter. III

Challenging Power: Can People’s Tribunals Work?

Iran Tribunal Ayatollah Khomeini appointed a provisional government in 1979. Since the late 1970’s, Iran has been skirting its international human rights obligations. The un attempted a dialogue on human rights issues with Iran since that time period. Beginning in 1979 until 1982 un Special Representative Olof Palme reported human rights violations that occurred in the country.22 From 1984 to 1986 Special Representative Andres Aguilar was given the cold shoulder when he attempted to meet with Iranian officials regarding these issues. In 1986 un 22

Secretary General, un Economic and Social Council, Treatment of the Baha’is in Iran, un Doc E/CN.4/1517/, 31 Dec 1981.

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Special Representative Reynaldo Galindo Pohl was appointed and continued to report on various human rights violations.23 In 1988 Special Representative Pohl reported that he had spoken to people who witnessed presence of mass graves and arbitrary executions.24 The following year, Special Representative Pohl reported witness testimony of female prisoners being raped, forcibly married, and then executed.25 More reports regarding the same kind of gross violations followed every year. Special Representative Pohl requested the Iranian government to implement criminal law reforms in the country and conduct a ‘scrupulous investigation’ of all allegations of human rights violations that have occurred.26 Those requests were and continue to be ignored by Iranian authorities. Despite all the un monitoring and dialogue since 1979, in 2013 the Special Rapporteur on Human Rights in Iran reported similar human rights violations: A preponderance of human rights defenders interviewed for this report maintained that they were arrested in the absence of a warrant, and subjected to physical and psychological duress during interrogations for the purpose of soliciting signed and televised confessions. A majority of interviewees reported that they were kept in solitary confinement for periods ranging from one day to almost one year, were denied access to legal counsel of their choice, subjected to unfair trials, and in some cases, subjected to severe physical torture, rape (both of males and females, by both male and female officials), electro-shock, hanging by hands or arms, and/or forced body contortion.27 When questioned by the un, the Iranian government justified the oppression. During the 1980s Iran argued that Islamic law was incompatible with international law. They further argued terrorism and the Iraq war were justifications for human rights abuses, although they largely denied such abuses took place.28 23 24 25 26 27 28

Reynaldo Galindo Pohl appointed pursuant to resolution 1986/41. Reynaldo Galindo Pohl, Report of the Economic and Social Council, Situation of Human Rights in the Islamic Republic of Iran, un Doc A/43/705/, 13 Oct 1988, para 14. Reynaldo Galindo Pohl, Report of the Economic and Social Council, Situation of Human Rights in the Islamic Republic of Iran, un Doc A/44/620/, 2 Nov 1989, para 27. Ibid, para 127(b). Special Rapporteur, Report on the Situation of Human Rights in the Islamic Republic of Iran, un Doc A/HRC/22/56, 28 Feb 2013. Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, with Particular Reference to Colonial and Other Dependent Countries and

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Sometime around 2005, a group of survivors of the political massacres of the 1980’s decided to move forward in educating more people about the dark chapter in Iran’s history. The main motivation of the survivors was to increase awareness among the broader public about these massacres and hold Iran accountable for its crimes. Inspired by the Russell Tribunal, survivors, families of deceased victims, activists, and scholars, created an ‘Iran Tribunal’ to address the atrocities that were committed in the 1980’s by the ruling regime in Iran. The Tribunal heard and documented detailed evidence that showed the regime’s use of forced disappearances, various kinds of torture, massive rapes, and other forms of cruel and inhumane treatment of prisoners. Witnesses who came before the Tribunal also gave names of hundreds of victims who were executed without any due process. They described how these prisoners were held for as little as three days and executed by a firing squad or by hanging. In addition there was testimony regarding various massacres that took place.29 For example, the Jahrom Massacre was described as follows: After Mahmoud Vatanparast, the Governor of Fars Province, refused to rig the province’s parliamentary election results in 1980 in favour of Mohammed Behsarati, a losing candidate, the shari’ah leader of Jahrom ordered the murder of Vatanparast’s entire family from the pulpit of the mosque. Several family members where then summarily executed, including by crucifixion, defenestration, skinning alive, being cut into pieces with shears, and being dragged along the asphalt behind a moving van. Children as young as nine were arrested; others were incarcerated and then killed under torture or in the massacres of 1988. After inhabitants of Jahrom smelt a foul odour coming out of a canal, seventeen dead children were shortly found in the water.30 Testimonies also described other grotesque situations. During the Rasht Prison Fire, several inmates burned to death as guards would not open their cells to allow them to escape the flames. There were massacres in Kurdistan, where hundreds of Kurds were killed in an airport and children were executed in

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Territories, Report on the Human Rights Situation in the Islamic Republic of Iran, un Doc E/CN.4/1988/24, 25 Jan 1988, para 58. See also Economic and Social Council, Situation of Human Rights in the Islamic Republic of Iran, un Doc A/44/620/, 2 Nov 1989, para 92. The facts that I use here are taken from the Iran Tribunal, Findings of the Truth Commission, 30 July 2012, 31 available at http://www.irantribunal.com/Eng/PDF/Commission%20 Report-p.pdf (last visited 10 Feb 2017). Ibid, 2.3–2.3.1.4.

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front of their schools. The regime also used ‘pardon commissions’ but it was commonly referred to as ‘death commissions.’ Prisoners would be brought before the commission and questioned as to their religious/political beliefs. If the commission did not approve of their answer, the prisoners would be taken out and executed. In its Findings, the Tribunal documented the perpetrators involved and the various locations where these crimes took place. In the Final Judgment the Tribunal held that the ‘evidence tendered in these hearings supports a finding that crimes were committed by agents of the Islamic Republic of Iran, beginning with the Supreme Leader, and ending with the executions in the prisons and these constitute a breach of international law.’31 It concluded that the Islamic Republic of Iran committed crimes against humanity during the 1980–1989 timeframe. To this day, the Findings of the Iran Tribunal have not been recognised by the Iranian regime. Since the Findings the Iran Tribunal reconvened in 2014 in a conference dedicated to continue to raise public awareness about the Tribunal’s work, its judgment, and the campaign to hold the Iranian regime accountable. The event was streamed live into Iran and many of its videos are available for viewing on the internet. It appears that the Tribunal’s work has received praise and attention from the broader international community.32 The Tribunal’s work was memorialised in a film which has been accepted into various film festivals.33 ukcsapt The ukcsapt movement began in 2014 through efforts of survivors and civil society members who wanted the uk government to address and investigate institutional child sex abuse throughout the United Kingdom. At the same time the government in response to calls from victims and civil society also announced its own inquiry. Some of the parties involved in the ukcsapt also wholeheartedly supported the Government Inquiry that is discussed a few paragraphs below. However, many felt disenfranchised and did not believe that the uk Government would create an impartial or effective inquiry given the history of past inquiries in the uk on this particular issue. 31 32

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‘Final Judgment in the Iran Tribunal Published’ Payvand News, 7 Feb 2013. Mahsa Alimardani, ‘Hague Tribunal to Investigate Iran Massacre of Political Prisoners’ Vancouver Observer, 26 Oct 2012, available at http://www.vancouverobserver.com/ politics/hague-tribunal-investigate-iran-massacre-political-prisoners (last visited 10 Feb 2017). The documentary film is available at https://www.youtube.com/watch?v=A2jwW-3yaB4 (last visited 10 Feb 2017).

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In September of 2014 a meeting was called among a group of select survivors, lawyers, and activists to discuss an independent movement to address child sex abuse and what the stakes of such a movement would be. It was suggested that consideration be given to forming a People’s Tribunal. One of the questions discussed was whether, given the potential inquiry by the government, the People’s Tribunal should occur and what the remit of such a People’s Tribunal should be. Among many factors discussed, the main motivations of having a People’s Tribunal focused on the need for victims/survivors to be able to share their narratives freely, a safe space for survivors/victims to discuss what had happened to them without fear of retaliation, shame, or punishment. Many survivors and victims had felt that there was government cover up and a large amount of distrust existed given the amount of child sex abuse that was alleged to have occurred in these institutions. The model discussed initially was inspired by the Iran Tribunal, as many of the parties initially involved had been active with the Iran Tribunal. An initial steering committee was selected and the process of forming the Tribunal began. The Tribunal was officially launched in December 2014 with an initial campaign aimed at raising awareness of its existence and its general Terms of Reference.34 Almost at the same time, during the summer 2014, the uk Government announced its inquiry.35 The climate surrounding the Child Sex Abuse Inquiry, (csa Inquiry) was highly politicized. uk media tended to focus on the personalities involved in the csa Inquiry rather than the problems of child sex abuse. The first appointed Chair of the Inquiry was Judge Judith Butler Sloss, who was quickly asked to resign given her close connections to the political establishment.36 Following Butler Sloss’s departure Fiona Woolf was appointed as the next Chair. She was also asked to resign as a result of close connections to the political establishment.37 Home Secretary Theresa May was then forced to consider more candidates eventually searching outside the uk and finally

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Current information regarding the ukcsapt can be found http://www.ukcsapt.word press.org (last visited 10 Feb 2017). uk Home Office, Independent Inquiry into Child Sex Abuse, 19 February 2015, https:// www.gov.uk/government/collections/independent-panel-inquiry-into-child-sexual -abuse (last visited 29 April 2017). ‘Butler-Sloss Steps Down from Child Sex Abuse Inquiry’ bbc News, 14 July 2014, http:// www.bbc.com/news/business-28295282 (last visited 10 Feb 2017). Rowena Mason, ‘Fiona Woolf Resigns as Chair of Government’s Child Abuse Inquiry’ The Guardian, 31 October 2014, http://www.theguardian.com/politics/2014/oct/31/fiona -woolf-resigns-chairman-child-abuse-inquiry (last visited 10 Feb 2017).

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appointing Justice Lowell Goddard from New Zealand.38 The csa Inquiry turned from an investigative panel into a statutory inquiry with powers to compel witnesses and evidence.39 Goddard had stated that under the Terms of Reference the Inquiry’s competence is limited to investigating the failure of institutions in their duty of care within England and Wales and that the csa Inquiry could potentially last until 2020.40 During Goddard’s appointment to the csa Inquiry, media reports focused on various episodes, from personnel changes to the handling of survivor/victim evidence, that have drawn criticism from survivors, victims, and stakeholders. The csa Inquiry bumbled along in the status quo seemingly without a strong support base.41 The ukcsapt after its initial broad launch repositioned itself given the lack of monetary resources and people, to investigate complicity, perpetration, and/or cover up of child sex abuse within law enforcement or parliament. The narrow focus on these two areas was determined by the two following considerations. First, it hoped to demonstrate the ability of dedicated people, such as those in the ukcsapt to produce an end result that would be manageable and of substance that the uk public understands. Second, this highlights that civil society can and should hold those with power accountable for their failings and wrongdoings. In February 2015 the ukcsapt announced the opening of its submissions process. The uk public was invited to contact the ukcsapt with their narratives whether they were survivors, victims, witnesses, whistleblowers, or experts in the child sex abuse field. Throughout that time period of the ukcsapt (2014–2016) the Steering Committee actively used social media to encourage people to come forward with their narratives so that collectively they could serve as a basis for recommendations to stop child sex abuse. The submissions process closed in August 2015. Those who participated in the process were grateful to share their experiences knowing that it could possibly save one child’s life in the future. For others it brought healing and closure. To date, mainstream media in the uk has been unresponsive to this particular 38 39 40 41

‘New Zealand Judge Lowell Goddard to Lead Abuse Inquiry’, bbc News, 4 February 2015, http://www.bbc.com/news/uk-31130805 (last visited 10 Feb 2017). Terms of Reference, uk Independent Inquiry into Child Sex Abuse, available at https:// www.iicsa.org.uk/terms-reference (last visited 20 April 2017). ‘Child Sex Abuse Inquiry “Could Last until 2020”’, bbc News, 9 July 2015, http://www.bbc .com/news/uk-33442588 (last visited 20 April 2017). Tom Parmener, ‘Abuse Survivors Lose Faith in Goddard Inquiry’, Skynews, 26 May 2015, http://news.sky.com/story/1490572/abuse-survivors-lose-faith-in-goddard-inquiry (last visited 20 April 2017).

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movement. The csa Inquiry has not acknowledged the existence of the ukcsapt publicly. However, it should be noted that the ‘Truth Project’ that the csa Inquiry set up modeled the ukcsapt.42 In addition to encouraging submissions to build a final report with the selected independent experts, the ukcsapt began educational interviews on topics related to child sex abuse which can be accessed worldwide via the internet.43 These interviews aimed to bring the issues surrounding child sex abuse to the forefront. In addition, the ukcsapt announced its own Child Sex Abuse Awareness Day on November 2, 2015 in an effort to continue its promotion of ending impunity for perpetrators and stopping child sex abuse. This is a vastly different approach from the approach adopted by the mainstream media, which continues to discuss celebrity perpetrators and dead parliamentarians who allegedly sexually abused children. While the ukcsapt continued to make progress in raising awareness about the dangers of child sex abuse as a human rights violation and continued to advocate no impunity for child sex abuse perpetrators, the real impact of the ukcsapt will only be known once the recommendations begin to be implemented on a national level. A panel of independent experts together with the Steering Committee presented the preliminary report44 at the Houses of Parliament in March 2016. The ukcsapt was invited to present its preliminary findings by the Member of Parliament Sara Champion. The preliminary report has made its way into the hands of the uk Home Office and various treaty bodies at the United Nations and is publicly available online. The report continues to be used as a tool by the members of the independent panel and the steering committee as a guidepost in what tools can be used to address the concerns of survivors and victims and more importantly, concrete next steps to tackle the issue. From start to finish it took approximately a little over one year to complete the ukcsapt. The findings of the ukcsapt are now accessible to the public and the next leg of the journey for the People’s Tribunal is to continue to share its finding worldwide with various communities in and out of the United Kingdom. 42

43 44

Information about Truth Project component of the uk Home Office Independent Inquiry into Child Sex Abuse is available here https://www.iicsa.org.uk/how-we-work (last visited 20 June 2017). ukcsapt created videos on its own Youtube channel: https://www.youtube.com/ channel/UCEGelU2cQCNmBOfaBf4aH5w (last visited 10 Feb 2017). ukcsapt, Healing and Justice: In Defence of the Survivors of Child Sexual Abuse, Preliminary Report of the United Kingdom Child Sexual Abuse People’s Tribunal, 1 March 2016, available at www.ukcsapt.org.uk (last visited 10 Feb 2017).

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Sadly, the csa Inquiry was met with another round of failure. Lowell Goddard resigned from her post in August 2016. Goddard stated that the inquiry suffered from a ‘legacy of failure.’45 While Goddard did not finish her mandate, survivor groups did have some trust in the csa Inquiry as groups did reach out to report evidence.46 Shortly thereafter, Professor Alexis Jay, who handled previous government inquiries into child sex abuse, was named the chair of the csa Inquiry. It is clear that the media reports and the continued focus on the politics of the csa Inquiry means that the state’s support of such an Inquiry gives it an semblance of propriety and legitimacy that did not need to be earned, whereas with the ukcsapt, it was a continued effort since the beginning to ensure that the public and survivors/victims could trust the ukcsapt process. Conclusion People’s Tribunals can be an accessible method to promote the common language between justice and human rights. As highlighted in this chapter, the current international framework of human rights is hardly accessible to the people who need human rights protections. Most of the human rights discussions are carried on by elites and states. Therefore, the top down approach dominates. As a consequence, in many cases groups that need protection the most are left out. A possible way to respond to the top down approach is to utilise civil society’s role in creating grassroots solutions, such as People’s Tribunals. People’s Tribunals, can be a reality in shaping and promoting human rights within local communities so that human rights become accessible. People’s Tribunals share the language of justice and are always connected to a human rights issue. From issues related to the environment to genocide, People’s Tribunals put civil society in the driver’s seat and are legitimated by the power the people give to the structure. As discussed in this chapter, the Iran Tribunal

45

46

Alan Travis, ‘Child Abuse Inquiry: Alexis Jay to Take Over from Lowell Goddard’ The Guardian, 11 Aug 2016, available at https://www.theguardian.com/society/2016/aug/11/ child-abuse-inquiry-prof-alexis-jay-to-take-over-from-lowell-goddard (last visited 10 Feb 2017). ‘Goddard Inquiry: Children Were Abused on an Industrial Scale at Lambeth Council Run Homes’, bbc News, 24 March 2016, http://www.bbc.com/news/uk-35889595 (last visited 10 Feb 2017).

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dissected a certain period of atrocities that occurred to indict the Iranian regime of crimes against humanity. This effort brought healing to many because they were given the space to hold the state accountable and bring closure to a painful time in their lives. The same can be said of the survivors of child sex abuse in the United Kingdom who remained committed to the People’s Tribunal in order to raise awareness regarding the gross injustices that have occurred in institutions throughout the country and in raising awareness on an issue that plagues countries around the world. In a globalised society, grassroots justice movements such as People’s Tribunals, allow people all over the world to share a common language in their struggle to hold power to account. As the Iran Tribunal and the ukcsapt has shown, people despite their differences on the nuances of the issues, can come together to form a movement to generate a counter-narrative so that civil society, whether locally or around the world, can understand why access to justice is important. Particularly with the ukcsapt, participants recognize that even with limited narratives that a diverse group of people can create strong recommendations that are more in touch with what the victims and survivors need. Although seen as out of the box, movements such as the ukcsapt, represent a globalised society’s efforts allow all voices to be heard. Bibliography Alimardani, Mahsa, ‘Hague Tribunal to Investigate Iran Massacre of Political Prisoners’ Vancouver Observer, 26 Oct 2012, available at http://www.vancouverobserver.com/ politics/hague-tribunal-investigate-iran-massacre-political-prisoners (last visited 10 Feb 2017). ‘Butler-Sloss Steps Down from Child Sex Abuse Inquiry’, BBC News, 14 July 2014, available at http://www.bbc.com/news/business-28295282 (last visited 10 Feb 2017). Byrnes, Andrew C. and Simm, Gabrielle ‘Peoples’ Tribunals, International Law and the Use of Force’ (2013) 36 University of New South Wales Law Journal 711. Center for Economic and Social Rights and UN Office of the High Commissioner for Human Rights, Who Will be Accountable? Human Rights and the Post 2015 Development Agenda (2013), available at: http://www.ohchr.org/Documents/Publications/ WhoWillBeAccountable.pdf (last visited 10 Feb 2017). ‘Child Sex Abuse Inquiry “Could Last until 2020”’, BBC News, 9 July 2015, available at http://www.bbc.com/news/uk-33442588 (last visited 10 Feb 2017). Economic and Social Council, Situation of Human Rights in the Islamic Republic of Iran, UN Doc A/44/620/, 2 Nov 1989.

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‘Final Judgment in the Iran Tribunal Published’ Payvand News, 7 Feb 2013. ‘Goddard Inquiry: Children Were Abused on an Industrial Scale at Lambeth Council Run Homes’, BBC News, 24 March 2016, http://www.bbc.com/news/uk-35889595 (last visited 10 Feb 2017). ‘Guilty! Russell Tribunal Condemns Obama , Poroshenko, ‘war crimes’ in E. Ukraine.’ Russia Today, 13 Sept 2014, available at https://www.rt.com/news/187584-russell -tribunal-obama-ukraine/ (last visited 10 Feb 2017). Haigh, Bruce, ‘Tribunal Delivers Sri Lanka’s Guilty Verdict’ Canberra Times, 2 Jan 2014, available at http://www.canberratimes.com.au/comment/tribunal-delivers-sri -lankas-guilty-verdict-20140101-305zf.html (last visited 10 Feb 2017). Hayner, Pricilla B., Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd ed (New York: Routledge, 2002). Iran Tribunal, Findings of the Truth Commission, 30 July 2012, 31 available at http://www .irantribunal.com/Eng/PDF/Commission%20Report-p.pdf (last visited 10 Feb 2017). Kennedy, David, ‘The International Human Rights Regime: Still Part of the Problem?’ in Rob Dickinson, Elena Katselli, Collin Murray, and Ole Pederson (eds) Examining Critical Perspectives on Human Rights (Cambridge: Cambridge University Press, 2012) 25. Mason, Rowena, ‘Fiona Woolf Resigns as Chair of Government’s Child Abuse Inquiry’ The Guardian, 31 October 2014, http://www.theguardian.com/politics/2014/oct/31/ fiona-woolf-resigns-chairman-child-abuse-inquiry (last visited 10 Feb 2017). Nash, Kate, ‘Is it Social Movements that Construct Human Rights?’ in Donatella della Porta, Mario Diani (eds) The Oxford Handbook of Social Movements (Oxford: Oxford University Press, 2015), 746. Neier, Aryeh, The International Human Rights Movement: A History (Princeton: Princeton University Press, 2012). ‘New Zealand Judge Lowell Goddard to Lead Abuse Inquiry’, BBC News, 4 February 2015, http://www.bbc.com/news/uk-31130805 (last visited 10 Feb 2017). Parmener, Tom, ‘Abuse Survivors Lose Faith in Goddard Inquiry’, Skynews, 26 May 2015, http://news.sky.com/story/1490572/abuse-survivors-lose-faith-in-goddard-inquiry (last visited 20 April 2017). Perelman, Jeremy, ‘Transnational Human Rights Advocacy, Clinical Collaborations, and the Political Economies of Accountability: Mapping the Middle’ (2013) 16 Yale Human Rights & Development Law Journal 89. Pohl, Reynaldo Galindo, Report of the Economic and Social Council, Situation of Human Rights in the Islamic Republic of Iran, UN Doc A/43/705/, 13 Oct 1988. Pohl, Reynaldo Galindo, Report of the Economic and Social Council, Situation of Human Rights in the Islamic Republic of Iran, UN Doc A/44/620/, 2 Nov 1989. Pohl, Reynaldo Galindo, Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World, with Particular Reference to Colonial and Other

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Dependent Countries and Territories, Report on the Human Rights Situation in the Islamic Republic of Iran, UN Doc E/CN.4/1988/24, 25 Jan 1988. Ron, James, Crow, David and Golden, Shannon ‘The Struggle for a Truly Grassroots Human Rights Movement’ Open Global Rights, 18 June 2013, available at: https://www .opendemocracy.net/openglobalrights/james-ron-david-crow-shannon-golden/ struggle-for-truly-grassroots-human-rights-move (last visited 10 Feb 2017). Russia Today, ‘Guilty! Russell Tribunal condemns Obama , Poroshenko, “war crimes” in E. Ukraine.’ (13 Sept 2014) available at: https://www.rt.com/news/187584-russell -tribunal-obama-ukraine/ last visited 10 Feb 2017. Secretary General, UN Economic and Social Council, Treatment of the Baha’is in Iran, UN Doc E/CN.4/1517/, 31 Dec 1981. Special Rapporteur, Report on the Situation of Human Rights in the Islamic Republic of Iran, UN Doc A/HRC/22/56, 28 Feb 2013. The Iran Tribunal, Findings of the Truth Commission (30 July 2012), pg 31 available at: http://www.irantribunal.com/Eng/PDF/Commission%20Report-p.pdf last visited 10 Feb 2017. Travis, Alan, ‘Child Abuse Inquiry: Alexis Jay to Take Over from Lowell Goddard’ The Guardian, 11 Aug 2016, available at https://www.theguardian.com/society/2016/ aug/11/child-abuse-inquiry-prof-alexis-jay-to-take-over-from-lowell-goddard (last visited 10 Feb 2017). UKCSAPT, Healing and Justice: In Defence of the Survivors of Child Sexual Abuse, Preliminary Report of the United Kingdom Child Sexual Abuse People’s Tribunal, 1 March 2016, available at www.ukcsapt.org.uk (last visited 10 Feb 2017). UK Home Office, Independent Inquiry into Child Sex Abuse, 19 February 2015, https:// www.gov.uk/government/collections/independent-panel-inquiry-into-child -sexual-abuse (last visited 29 April 2017). Williams, Carol, ‘Russia Uses U.N. Veto Power to Scuttle Tribunal for MH-17 Downing’ Los Angeles Times, 29 July 2015, available at http://www.latimes.com/world/europe/ la-fg-russia-malaysia-airlines-downing-tribunal-veto-20150729-story.html (last visited 17 Feb 2017).

Index Abbasi case (see Diplomatic protection, ­Abbasi case) Accountability, Coherence and Transparency Group 197–198 Al Rawi case (see Diplomatic protection, Al Rawi case) Armed conflict application of human rights in 111–119, 125, 127–131 international 112–113 law of 110, 126–127 non-international 112–116, 120–121, 127, 129 proportionality 124, 128 Agency 81 Attribution (see Responsibility, attribution) Buchanan, Allen 16, on decent non-liberal people 25–26, 29 on group rights 33 on indigenous peoples’ defence of cultural integrity 22–26 on indigenous peoples’ right to selfdetermination 18–22, 27–28 on Rawls 27 Business and human rights 228–261 Guiding Principles on 228–229, 234–235, 241–248, 260 National Action Plans on 242–246 Citizenship 137–138 and nationality 159–151 Cultural integrity 30 Buchanan on indigenous peoples’ defence of 22–26 Denizenship 137, 151, 165–166 Decent non-liberal people (see People, decent non-liberal) Declaration of the rights of indigenous people (see People, Declaration of the rights of) Decolonisation 78–79 Delegation

Diallo case (see Diplomatic protection, Diallo case) Diplomatic protection 135–166 Abbasi case 162–164 Al Rawi case 162–164 and human rights 155–164, 165–166 Diallo case 164–165 Kaunda decision 158–160 refugee 160–164 the 2006 ilc’s Draft Articles on 141, 145, 155, 161–162 Domestic regulation 7–8, 176–177 and human rights 230–231, 255–258 and the International Criminal Court  84–85 and transnational corporation 229–230, 241–248, 250–255 Duties (see human rights duties) European Court of Human Rights and family life 154 and responsibility of international organisations 186–188 and the use of lethal force 121–122, 127 European Union 177–178, 193 Extraterritoriality 235–238 Family reunion 154, 165–166 Globalisation 1–2, 4, 14, 174, 268 and human rights 2–3, 5, 9, 15, 43, 57–59, 63–64, 70 and pluralism 179–180 and power 4, 9, 63, 110–111, 124–125, 132 and responsibility 192–194 and states 70 Grassroots movement 270, 271, 283 Group agents 32–36 Home-state regulation (see Domestic regulation) Human rights, 4–5, 14–15 (see also Right) alternative system 37–38 and armed conflict 111–119, 127–131

288 Human rights, (cont.) and business 228–261 and diplomatic protection 155–164, 165–166 and domestic sphere 7–8, 230–231 and globalisation 2–3, 5, 9, 15, 43, 57–59, 63–64, 70 and power 8–9, 44, 63, 269–270 and responsibility 186–192 and sovereignty 79–80 and veto 221 approach to hostilities 121–125 duties 60 expanding scope of 116–119 future of 54–61 liberal theory of 15–16, 23–24 limits of 232–241 normative foundations 15–16 opposition to 51 Humanitarian crisis (see Veto, exercise in humanitarian crisis) Individual 137, 164, 173–174 Indigenous people (see People, indigenous) International Criminal Court 70–100 admissibility 84–85 and limits on sovereignty 82–98 complementarity 84 cooperation of states 87–88, 89–90 jurisdiction of 83–84, 85 Prosecutor 83, 86, 91 Rome Statute of the 70–71, 83–84, 87 International organisations (see also Responsibility, of international ­organisations) 174, 176 power of 7, 43 Iran Tribunal (see People’s tribunal, Iran tribunal) Jus cogens 139, 157–160, 249 Kaunda decision, see Diplomatic protection, Kaunda decision Law of armed conflict (see Armed conflict) Nationality 137–138, 139–142 and citizenship 149–151 effective 142–149

Index multiple 142–143 Nottebohm case 140, 147–149 Norm 74, 175, 179 development of 81–82 sovereignty as 74–75 Nottebohm case (see Nationality, Nottebohm case) People decent non-liberal 24–26, 29 Declaration of the rights of indigenous, 16–17, 23, 28 Indigenous 16 right to self-determination 51, 63 of indigenous 16, 17 Buchanan on 18–22 People’s tribunal 268–283 and Truth Commissions 273 Iran Tribunal 275–278 United Kingdom Child Sex Abuse 268, 278–283 Pluralism 175–180 and globalisation 179–180 Power 4 and globalisation 4, 9 and human rights 8–9, 44, 269–270 of international organisations 7, 43 of states 6, 44, 110–111 Rawls, John 24 Buchanan on 27 on decent non-liberal people 24 Refugee, see Diplomatic protection, Refugee Residence 149–151, 160–164, 165–166 Responsibility 174, 180–182 and globalisation 192–194 and human rights 186–192 attribution 182–188, 191–192 of international organisations 174–194 of states 180 sovereignty as 70, 74, 80 to protect 70, 209, 220 Right economic and social 44 third-generation 45, 55–57 and the future of human rights  54–61 duty-bearer 58–59 history and status of 46–54

289

Index to development 51–54, 59, 61–62 Declaration on the right to 48, 54, 59, 61 history of 47–49 to healthy environment 51–54, 61–62 history of 49–50 to self-determination (see people, right to self-determination) Security Council 83, 87, 197–222 Veto of permanent members of (see Veto) Solidarity 59–60 Sovereignty 73–80, 153–154, 173–176 and human rights 79–80 and International Criminal Court  82–98 as both norm and fact 74–74 as responsibility 70, 74, 80 Westphalian model of 76–80 States and human rights 44, 57 power of 6, 85, 87–88, 175, 269–270 Suez crisis 205–208 Syrian conflict 209–216

Third-generation rights (see Right, third-generation) Transnational corporations (see also Business and human rights) 43, 228–261 United Kingdom Child Sex Abuse People’s Tribunal (see People’s tribunal, United Kingdom Child Sex Abuse) United Nations Reform 208 Security Council (see Security Council) Veto 79, 197–222 and human rights 221 as a right 199–202, 208, 210–212 as a responsibility 200–202, 208, 212–216 attempts to restrict 203–204 drafting history 199–202 exercise in humanitarian crisis  216–221 Westphalia, The Peace of 76–78