International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature 9781474201254, 9781849465199

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List of Contributors Christine Bakker, Research Fellow, Academy of European Law, European University Institute, Florence, Italy. Ben Boer, Distinguished Professor, Research Institute of Environmental Law, Wuhan University and Emeritus Professor of Environmental Law, University of Sydney, Australia; Deputy Chair, IUCN World Commission on Environmental Law. Alessandro Chechi, Researcher, Art-Law Centre, University of Geneva, Switzerland; PhD in Law, European University Institute, Florence, Italy. Francesco Francioni, Professor Emeritus of International Law, European University Institute, Florence, Italy, and part-time Professor LUISS University, Rome, Italy; Member of the Institut de Droit International; Consultant to UNESCO. Federico Lenzerini, PhD, International Law. Professor of International Law and European Union Law, University of Siena, Italy. Lucas Lixinski, Lecturer, Faculty of Law, The University of New South Wales, Sydney, Australia; PhD in Law, European University Institute, Florence, Italy. Riccardo Pisillo Mazzeschi, Professor of International Law, University of Siena, Italy. Massimiliano Montini, Professor of European Union Law, University of Siena, Italy. Elisa Morgera, Senior Lecturer in Global Environmental Law at the School of Law of the University of Edinburgh, United Kingdom. Emanuela Orlando, Lecturer in Environmental Law, University of Sussex, United Kingdom. Riccardo Pavoni, Associate Professor of International and European Law, University of Siena, Italy. Ernst-Ulrich Petersmann, Emeritus Professor and former Head of the Law Department, European University Institute, Florence, Italy. Ottavio Quirico, Senior Lecturer, School of Law, University of New England, New South Wales, Australia.

viii  List of Contributors Natalino Ronzitti, Emeritus Professor of International Law, LUISS University, Rome, Italy; Member of the Institut de Droit International. Tullio Scovazzi, Professor of International Law, University of MilanoBicocca, Milan, Italy. Bruno Simma, Judge at the Iran-United States Claims Tribunal, former Judge at the International Court of Justice, former member of the International Law Commission, Professor of Law (on leave) of the University of Michigan Law School, Ann Arbor, USA. Valentina Vadi, Emile Noël Postdoctoral fellow, New York University; Reader (Associate Professor), Lancaster University, United Kingdom. Patrizia Vigni, Researcher and Lecturer of International Dispute Settlement at the Law Faculty of the University of Siena, Italy. Ana Filipa Vrdoljak, Professor and Associate Dean (Research), Faculty of Law, The University of Technology, Sydney, Australia. Siegfried Wiessner, Professor of Law and Director, Graduate Program in Intercultural Human Rights, St Thomas University School of Law, Miami, Florida, USA. Abdulqawi A Yusuf, Judge, International Court of Justice.

Introduction ANA FILIPA VRDOLJAK

O

N 3 AND 4 November 1966, the city of Florence was engulfed by water from the River Arno. The city’s ancient treasures, its build­ ings, paintings, sculptures, manuscripts, as well as its inhabitants and their everyday lives became subsumed by raging torrents of water. During a period of significant social, political, economic unrest and turbu­ lence in many societies worldwide, the reactions to these possible losses in Florence were immediate and consistent – and global. Assistance and support to halt and repair the damage and destruction came from all quarters. One of the most enduring images was the people – who came to be known as the angeli del fango (‘angels of mud’) – who formed human chains with the locals as they endeavoured to recover, what could be recovered, from the bowels of the Biblioteca Nazionale Centrale on the banks of the Arno which houses centuries’ old archives now laden with mud. All felt a deep connection to the city and the repository of human know­ ledge and creativity that it represented, regardless of their nationality or age. The potential loss and efforts to counteract it spoke to our common heritage and shared humanity, unbounded by time or space. Much has been written about this historical period, the 1960s and 1970s, during which the disastrous events occurred. It has usually been defined as a time of unrest, disruption and disjuncture – as convulsive as the waters that spread through Florence. Yet, in this upheaval there are innu­ merable examples of people coming together, united efforts, and common purposes – from the local to the global communities. If the 1966 Florence and Venice floods represent an international communal response to threats to our common heritage, then there are similar responses covering envi­ ronmental calamities and large-scale human rights abuses which reinforce this sentiment. Public, grassroots responses would within a few short years become translated into multilateral instruments covering human rights, cultural heritage, and the environment.1 They provide evidence in 1   The leading exemplars being the International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, entered into force 23 March 1976, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights (ICESCR), GA Res 2200A(XXI), 16 December 1966, entered into force 3 January 1976; Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), 16 November 1972, in force 17 December 1975, 1037 UNTS 151; and Declaration of the UN Convention on the

2  Ana Filipa Vrdoljak international law of an understanding of an international community unfettered by time or territory, and not exclusively defined by the rights and interests of States. Modern international law has long been dominated by the State. However, it has been apparent for decades that this bias is unrealistic and untenable in the contemporary world. Despite the seemingly intractable inadequacies and blockages engendered by long-established international institutions, there has been a proliferation of international organisations covering every facet of human activity, which reinforce our global inter­ connectedness, but also an international society still largely defined by States. However, there is a need to look beyond (or below or within) these institutional developments. The rise of the notion of common goods challenges this dominance. They may prove to be more fundamental and enduring in defining our conception of an international community. Whether they are common val­ ues (like human rights, rule of law, etc) or common domain (including the environment, cultural heritage, space, and so forth), they speak to an emergent international community beyond the society of States and the attendant rights and obligations of non-State actors. This collection of essays details how the idea of common goods in three key areas – human rights, culture and the environment – of international law is pushing the boundaries of this field of law toward a more humanist outlook, while shaping our contemporary understanding and commitment to an inter­ national community. The first part of this book considers the common unifying value: human rights, evidenced by its growing influence on (and reshaping of) the field of international law generally. This was first articulated with the rise of the modern State and its relationship with its citizens. By the mid twenti­ eth century, the veil of the statehood was lifted as individuals were held responsible for gross violations of human rights within States. By the twenty-first century this was reinforced by a commitment to human rights permeating almost every facet of international law and the working of international organisations. Bruno Simma in his chapter entitled Critical Reconstruction of Human Rights in ICJ’s Jurisprudence, details how despite the inbuilt bias towards States in its constitutive statute, the World Court has implicitly from the beginning and more explicitly in recent years engaged human rights. For Simma, the constructive (and recognisably limited) role the ICJ can play is to mainstream human rights, that is, ‘inte­ grating human rights into the fabric of international law’. Simma acknow­ ledges that this is distinctive from the more inventive role undertaken by specialist, regional human rights courts and commissions. It is this Environment (Stockholm Declaration), adopted 16 June 1972, UN Doc A/CONF 48/14/Rev 1(1973); 11 ILM 1416 (1972).



Introduction 3

characteristic which is explored by Abdulqawi Yusuf in his essay on the African human and peoples’ rights framework, entitled The Progressive Development of Peoples’ Rights in the African Charter and in the Case Law of the African Commission of Human and Peoples’ Rights. Yusuf centres on what renders the African Charter unique among multilateral human rights instruments, its explicit articulation of peoples’ rights. He notes that despite its initial slow start, the jurisprudence of the Commission and now the Court has in the last two decades enabled a more fully-formed interpretation of peoples’ rights in international law generally. The remaining four essays in Part I examine how human rights law is interacting with and shaping key fields of public international law. Federico Lenzerini in his chapter, From Jus in Bello to Jus Commune Humanitatis: The Interface of Human Rights Law and International Humanitarian Law in the Regulation of Armed Conflicts examines the jurisprudence of the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights and the European Court of Human Rights con­ cerning human rights violations during (more often than not internal) armed conflicts. Such conflicts invoke two distinct spheres of international law, international humanitarian law (which is lex specialis) and human rights law, which remains operable. Lenzerini’s analysis highlights how recent case law arising from these regional human rights bodies is humanis­ ing the impact and conduct of war, and thereby complements the aim of international humanitarian law. The next two contributions focus on the influence of human rights law on State responsibility. Riccardo Pisillo Mazzeschi’s chapter entitled Human Rights and the Modernization of International Law focuses on the primary rules of State responsibility and how human rights law is redefining rights and obligations beyond States to encompass non-State actors, particularly individuals. While Natalino Ronzitti’s contribution entitled Reparation for Damage Suffered as a Consequence of Breaches of the Law of War centres on the secondary rules of State responsibility. He lays bare the continuing limitations of international humanitarian law in addressing individual claims for compensation for harm inflicted during armed conflict which may be more beneficial addressed through human rights law (and international criminal law). Ernst-Ulrich Petersmann in his essay entitled Why Justice and Human Rights Require Cosmopolitan International Economic Law takes up these similar con­ cerns and extends them to the ever increasing ambit of international eco­ nomic law to argue that it protects economic freedom and rule of law for States but also for their individual citizens and their human rights. The second part focuses on cultural heritage as a common good and the attendant growing body of international law governing its protection. Culture and its manifestations have long attracted protection at the inter­ national level from the earliest copyright conventions to its specialized treatment in international humanitarian law in the nineteenth century.

4  Ana Filipa Vrdoljak What has altered in the intervening period is the articulation of a special­ ist body of instruments which cover movable and immovable, tangible and intangible heritage and which aligns this with the protection of cul­ tural diversity and human rights. The first three essays in Part II explore this latter development. In my contribution entitled Human Rights and Cultural Heritage in International Law considers the idea of cultural diver­ sity as a common good by detailing the evolving relationship between culture, heritage and human rights in international law. I show that the international community is increasingly acknowledging that that cultural diversity is a source of peace and stability rather than disunity and strife. This shift has influenced how cultural heritage is protected in inter­ national law away from the dominance of national interests to ensuring the contribution of all peoples. Siegfried Wiessner in his chapter, The Cultural Dimension of the Rights of Indigenous Peoples, details this shift with particular reference to indigenous peoples. Drawing on developments in domestic law and international law across a range of instruments and cul­ minating in the 2007 UN Declaration on the Rights of Indigenous Peoples, Wiessner lays out the intrinsic importance of culture to the enjoyment of human rights generally by indigenous communities and their members. While Lucas Lixinski in his contribution, Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law, takes this thread further by examining the interplay and sometimes competing roles of individuals and communities in the protection of cultural heritage in international law and the possible utility of human rights law in resolving such tensions. The final three contributions in Part II explore how international law conceptualizes the protection of cultural heritage as a common good. Tullio Scovazzi in his chapter, Underwater Cultural Heritage as an International Common Good, argues that while there is growing consensus of erga omnes obligations for the protection and conservation of the cul­ tural heritage of all peoples, this remains contested in respect of underwa­ ter cultural heritage. Scovazzi maintains that the main blockage to this development is the UN Convention on the Law of the Sea which provides that underwater archaeological and historical heritage must be preserved and disposed for ‘the benefit of mankind as a whole’ but nonetheless gives precedence to salvage law and other rules of Admiralty. He argues that only the specialist Convention for the Protection of Underwater Cultural Heritage adopted under the auspices of UNESCO can properly protect the interests of the international community in underwater herit­ age. Valentina Vadi in her chapter entitled Public Goods, Foreign Investments and the International Protection of Cultural Heritage explores in detail a point touched upon by Scovazzi. By examining the interaction between direct foreign investment and cultural goods as public goods, Vadi suggests that foreign investment law may offer enrichment to the international protec­



Introduction 5

tion of cultural heritage but cautions that these developments must con­ form with human rights and other international law norms. Alessandro Chechi in his chapter entitled New Rules and Procedures for the Prevention and the Settlement of Cultural Heritage Disputes highlights the growing body of norms, formal and informal procedures and diverse fora for the settle­ ment of the often fraught disputes concerning movable cultural heritage. He advocates a multidimensional approach as the most effective means of ensuring the protection of cultural objects as common goods. The third part revisits the idea of the environment as a common good through the critical deliberation of multilateral efforts covering climate change, land degradation, and desertification, and the polar regions, and current developments in fields as diverse as international investment law and EU law. Whilst the environment probably may take prominence within global public consciousness today, it is the latest of our trio of themes which has defined a space within the corpus of international law. The first three contributions consider the articulation of a unifying trope to tie multilateral efforts in distinct areas of environmental protection. Massimiliano Montini in his Revising International Environmental Law through the Paradigm of Ecological Sustainability argues for an overarching paradigm to guide environmental law efforts. He suggests that the notion of ‘ecological sustainability’, that is, the duty to protect and restore the integrity of ecosystems which support life should underpin all inter­ national environmental law. A complementary theme is taken up by Ben Boer in his chapter, Land Degradation as a Common Concern of Humankind. Focusing on soils with particular reference to land degradation and deser­ tification, Boer considers the evolution of the concept of ‘common concern of humanity’ in international environmental law and compares this with the idea of ‘common goods’. He concludes that this concept is an import­ ant component in the protection of soils when combined with established international law principles. Patricia Vigni examines the concept of the ‘common concern’ of the international community in respect of the Arctic and Antarctica in her chapter entitled Protecting the Environment of Polar Regions. She reviews the effectiveness of the State-centred system govern­ ing the Arctic with the international regime covering the Antarctica and argues that there are lessons to be learnt from both which would serve to protect the environment more generally. The next cluster of chapters in Part Three coalesces around the interplay of the environment and human rights law. Riccardo Pavoni in his chapter, Public Interest Environmental Litigation and the European Court of Human Rights, challenges the European Court’s jurisprudence in the protection of the environment because of its emphasis on individual interests. He shows that by allowing public interest litigation and recognising collective con­ cerns, the Court would further allow its work to flourish in the field of environmental law whilst more effectively protecting the environment as a

6  Ana Filipa Vrdoljak common good. Christine Bakker in her chapter, Children’s Rights Challenged by Climate Change: Is a Reconceptualization Required?, provides an important point of intersection between key international law concepts such as inter­ generational equity, the notion of common good and human rights law. By covering a longitudinal environmental concern through the lens of the human rights of children, she explores the notion of common good as not being wed to the present but something that is also for the benefit of future generations. While Ottavio Quirico in his chapter entitled, A Human RightsBased Approach to Climate Change? Insights from the Regulation of Intangible Cultural Heritage, brings the three thematic threads of the volume together. He explores how States’ obligations in respect of cultural human rights, and related protection of cultural heritage, impact upon their international obligations to combat the present day and potential long term impact of climate change. The final two contributions to Part III consider the interrelation between international law and EU Law for the protection of the environment as a common good. Emanuela Orlando in her chapter, Public and Private in the International Law of Environmental Liability, lays out the complexities and possibilities of holding persons and entities responsible and obtaining reparations for environmental damage through public and private law avenues. She shows that national and international regimes are not mutu­ ally exclusive but can and should coexist and operate cooperatively. Elisa Morgera in her chapter entitled Protecting Environmental Rights through the Bilateral Agreements of the European Union shows how the EU can be more effective when finalising bilateral agreements, which cover environmen­ tal impact assessment, corporate environmental accountability, traditional knowledge, climate change and forest protection, to ensure coherence between human rights and environmental protection in its external rela­ tions and take a leadership role in environmental protection. Every book, including the present one, is the result of the efforts of its author(s). Sometimes we tend to consider a book only for the explicit mes­ sage offered by its text, but if one reads between the lines, it is usually possible to detect that those lines are the result of a number of activities and events which have intertwined with each other, eventually resulting in what is visible for the eyes of the reader. Usually, however, the ‘invisi­ ble’ says much more than what results from the black characters. The pre­ sent book is the result of the personal experiences and efforts of all the contributors who have provided a chapter, but beyond the amalgam of contributions composing the book there is a unifying line – a trait d’union – which provides such an amalgam with a precise and well evident coher­ ence. Obviously, such a trait d’union is represented by the theme of the safeguarding of common goods in international law. Each of the contribu­ tors to the present book has devoted at least a notable part of her or his professional life to the study of certain features belonging to this theme.



Introduction 7

However, there is one person in particular who embodies the latter in its entirety: Francesco Francioni. During his academic career he has been able to show that the three common goods represent – each of them – a compo­ nent of a unique whole deserving to be evaluated in its entire complexity, rather than considering them separately from each other. His epilogue at the end of this volume best encapsulates this ethos. This volume represented the contributions and deliberation arising from a conference hosted by the Academy of European Law, European University Institute, in Florence in mid-2012. The conference was designed as a cele­ bration and forensic analysis by leading scholars in fields engaged by the oeuvre of Francesco Francioni, at the time of the completion of his tenure as Professor of International Law and Human Rights at the Law Department, EUI. We thank all the participants and contributors who have been unflinch­ ingly enthusiastic in their commitment to this project – we recognize that it is reflective of the esteem and affection with which Francesco is held by his colleagues and students through the decades of service to the Academy and the field of international law. It is no accident that our introduction starts with the story of the 1966 Florentine floods. It is a story which we have heard told numerous times by Francesco – who was a first-hand witness to its destruction – observed from the hills overlooking Piazzale Michelangelo on the eve of the com­ pletion of his legal studies at the University of Florence. He is both an embodiment of the city’s humanist traditions but also unique in seeking to explore and engage the world beyond it. These characteristics are evid­ ent in the themes and range of contributions to this volume which are designed around key concerns of his work during this academic career to date. Francesco has always understood learning to be a collective process – being open, curious and receptive to the views and contributions of col­ leagues and students alike – to what has gone before, with a deep and critical understanding of the present, and consciousness of our legacy for future generations. A true teacher equips others with a way of under­ standing the world which is constructive and positive – not with prede­ termined answers which are impossible in any milieu because of flux and diversity but an ethical outlook which makes one open to others, to other points of view, to changing realities whilst knowing oneself and remain­ ing true to oneself and what it means to be human – with all one’s frailties and gifts. Francesco is a rare example of a true teacher and for this we owe him an abiding debt of gratitude.

1 The ICJ and Common Goods: The Case of Human Rights BRUNO SIMMA

F

I. INTRODUCTION

RANCESCO FRANCIONI AND I have been friends for more than 30 years. I remember many conversations we had – obviously about topics of international law and our experiences of teaching it in our home countries and abroad, but also about Italy, its light and dark sides and the features which make it so attractive, like the beauty of its landscape, its food and wine – many of them at the Certosa di Pontignano, with the towers and cupolas of Siena gleaming in the evening sun. I soon got to know Francesco as an exceptionally serious scholar,1 setting himself and others the highest standards, never wasting time with rehashing but always questioning established wisdom, seeking to find new angles to look at things and venture into unexplored realms. It was thus particularly fitting that the Symposium in Francesco’s honour which his pupils and friends organized in the Badia Fiesolana in the summer of 2012 was devoted to a ‘critical reconstruction’ of those issues of international law in regard to which Francesco had strived to engage in this very task. I had been asked by the organizers of the Symposium to analyze the contribution, if any, to such critical reconstruction by the International Court of Justice (ICJ). The papers that grew out of this conference have now been assembled in the present volume under the motto of ‘International Law for Common Goods’. The critical reconstruction of international law in order to develop it into a system capable of protecting and furthering goods common to humanity – these will also be the parameters within which I will engage in a brief assessment of the potential of the Hague 1   In the early 1980s, Francesco had visited the Faculty of Law in Munich for the first time before the two of us met and I remember that when I asked my Munich colleagues about what kind of person he was, more than one answer was that he had not struck colleagues as a ‘typical Italian academic’ (whatever that meant), rather as an exceptionally serious person, more ‘British’ somehow than Italian . . .

12  Bruno Simma Court to participate in this great exercise and the degree to which it has made use of it up to the present. I have chosen human rights as the subject of my case study because I regard them as the ultimate common good to strive for also by means of international law. A few weeks before the Symposium just mentioned, another conference had taken place at the Badia in memory of Antonio Cassese. It turned around Nino’s last academic project, a grand design for a reform of international law, undertaken as a collective endeavour, the results of which had just been published under the title Realizing Utopia: The Future of International Law.2 Among the chapters that Nino himself had contributed to this volume, we find one devoted to the World Court, bearing the somewhat provocative (and probably not terribly politically correct) title ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’.3 There, with the impatience that was so typical of him and (maybe also typical of Italian men) after comparing the Court to a ‘prepossessing lady . . . needing some peptone in her arteries and greater grit’, Cassese speaks of the ICJ as ‘a substantially arbitral court, a late-­ nineteenth-century institution oriented to unrestricted respect for outmoded conceptions of state sovereignty’, in need to be brought ‘into the twenty-first century and turned into a proper court of law’.4 We might consider this description exaggerated (and indeed one of the purposes of the present chapter is precisely to examine the justification of such a harsh assessment), but would also have to admit that prima facie it is not entirely off the mark. The characteristic features of the International Court, its juridical-institutional essence, has always appeared to me to resemble the appearance of the Peace Palace: awesome, dignified – but also old and certainly outmoded, with the more contemporary – office – extension of the building being in little harmony with the main Palace and its architectural mix between a Bavarian Ludwig II castle and the grim fortress-like appearance of public buildings in late nineteenth-century Prussia. Entering the Peace Palace always made me think that I was entering a museum of the ‘Westphalian system’ with Vattel as its curator, exquisite presents of the sovereigns all over the place but the non-governmental world, the ‘civic society’, quietly but firmly asked (and assisted in this task by a lot of cast iron fences – a gift of the pre-World War I German 2   Cassese A (ed), Realizing Utopia: The Future of International Law (Oxford, 2012). For a collection of papers presented at this conference, see ‘Realizing Utopia: Reflections on Antonio Cassese’s Vision of International Law’ (2012) European Journal of International Law 1029 ff. 3   Ibid, 239–49. I must confess that I had originally intended to present my critical comments on this chapter of ‘Realizing Utopia’ at the conference commemorating Nino Cassese under the title ‘In Praise of Older Women’, until Anny Bremner suggested that I choose a less loaded heading in order not to endanger my own – moderately feminist – reputation (but cf Vizinczey S, In Praise of Older Women: The Amorous Recollections of Andras Vajda (London, 1965)). 4   Ibid, 239.

The ICJ and Human Rights 13 Reich) not to enter, at least outside the visiting hours for tourists. To turn from such impressions back to our line of orientation, human rights: what is to be expected of a court, the statute of which, except for a few details, will in the near future be 100 years old, an institution created at a time when human rights in today’s sense was a subject regarded by at least the mainstream of international legal doctrine as a matter of morals, but not of positive law? Remember: we are supposed to focus on a critical reconstruction of human rights! Indeed, if the codification of human rights and the enforcement of thus-created international obligations, the protection of the rights of individuals by means of international law, institutions and procedures, is regarded as the core of the international concern for human rights, most if not all observers will relegate the ICJ to a back seat. From such a viewpoint, they will be right. II.  ELEMENTS IN THE WAY OF A MAJOR ROLE OF THE COURT IN INTERNATIONAL HUMAN RIGHTS LAW

The most basic, but also the most fundamental, juridical reason for such modest ranking is to be seen in the principle that the Court’s jurisdiction presupposes the Parties’ consent. This is the feature that Nino Cassese missed when he characterized the ICJ as a ‘substantially arbitral court’, distinguishing it from ‘a proper court of law’: the possession of compulsory jurisdiction in the sense that consent to the Court’s competence is given once and for all. Focusing our attention on human rights treaties, in their case the most important expression of such consent is to be found in compromissory clauses. However, among the major human rights treaties, only a few contain such a clause and only the oldest among these treaties, namely the Genocide Convention of 1948, allows States Parties immediate, direct access to the Court. This Convention is the only major UN human rights treaty which did not establish a treaty body for the supervision of performance by States Parties5; where such monitoring bodies do exist in addition to a compromissory clause providing for ICJ jurisdiction, a second hurdle will arise, namely the question whether, as an alternative or a cumulative condition, recourse to the treaty-based procedures before the respective monitoring body must be had before a case can be brought to the Court.6 5   For a human rights-friendly view on the consequences of this feature for the legitimacy and admissibility of reservations excluding the jurisdiction of the ICJ as the only institutional means of supervising performance by States Parties to the Genocide Convention, see the Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma to the judgment on Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda, New Application: 2002), Jurisdiction and Admissibility, ICJ Reports 2006, 6 ff, 65 ff. 6  Thus, in its decision on Preliminary Objections in the Georgia v Russia case, turning around the allegation of violations of the International Convention on the Elimination of All

14  Bruno Simma A second reason for the modest role of the ICJ with regard to judicial enforcement of human rights is structural: we are approaching the issue of such enforcement from a ‘wrong angle’, as it were. Viewing human rights problems, above all the issue of violations, from an inter-State perspective can only bring to the fore certain limited aspects of these problems. What I mean is that the ICJ will deal with violations of human rights as matters of State responsibility, and State responsibility is typically ‘law by states for states’.7 In such an inter-State conversation, the individual victims of human rights violations will not have a voice, they remain mute and invisible (as Parties before the Court, that is); if a State decides to espouse the claims of the victims by exercising diplomatic protection in the form of suing the violator in the Hague Court, the almost century-old spirit (or should I say, ghost?) of Mavrommatis will remain present, a rigid straitjacket will be in place for the admissibility of claims, even though the affected individual might become a little more visible in our picture if the Court followed the precedent it set in the Diallo case.8 The task of the ICJ, however, is precisely the settlement of inter-State disputes; only States can sue each other before the Court, while (unprivileged) individuals have to watch from the gallery in the Great Hall of Justice. Furthermore, it is a fact that the preparedness of States, also the States of nationality of the victims, to bring ‘pure’, genuine human rights scenarios before the Court has always been extremely limited, and it is fair to assume that this will remain the case – the few swallows I will mention later have yet to make a summer. What might be such a ‘pure’ human rights scenario that would not simply involve human rights as an accessory to some legally or politically more significant inter-State dispute? Such Kantian purity9 would have to comprise two elements. First, it would have to involve an instance in which State A brought before the Court violations of human rights comForms of Racial Discrimination of 1965, the Court did not reach the merits because it found that the Claimant had not fulfilled one of the (alternative) conditions set out in International Convention on the Elimination of All Forms of Racial Discrimination’s (CERD) compromissory clause, namely to engage in negotiations with its adversary: ICJ, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Judgment of 1 April 2011, ICJ Reports 2011, paras 115 ff, 187. 7   McCorquodale R, ‘Impact on State Responsibility’ in Kamminga MT and Scheinin M (eds), The Impact of Human Rights Law on General International Law (Oxford, 2009) 235 ff, 236. 8  Permanent Court of International Justice (PCIJ), Mavrommatis Palestine Concessions, Judgment, No 2, 30 August 1924, PCIJ Ser A, No 2, 12: ‘By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’ On the Diallo case, see section III. B. i, n 26. 9   Cf Schiller F, Gedichte, Dritte Periode (4): Gewissensbisse: ‘Gern dien’ ich den Freunden, doch tu’ ich es leider mit Neigung und so wurmt es mir oft, dass ich nicht tugendhaft bin’.

The ICJ and Human Rights 15 mitted by State B against that other State’s own nationals. In other words, the case would have to be a ‘disinterested’ one, not governed by the reflexes of diplomatic protection of a State’s own nationals. And secondly, the case would have to not be (at least, not evidently) a collateral attack on another State within the context of a broader political dispute, that is, constitute a kind of juridical Nebenkriegsschauplatz, an ancillary theatre of conflict. However, even if these two elements were present (and the first and only ICJ case getting close to fulfilling both conditions would be Belgium v Senegal10), the Court would still remain structurally different from, and very far away from deserving the label of, a ‘world court of human rights’.11 For example, since most human rights violations are committed by the victims’ ‘home’ States, in order to turn the ICJ into a genuine human rights court, among many other things, access to the Court as Parties would have to be opened to the individual victims of human rights violations – a utopian thought, with regard to The Hague, that is. The establishment of a Human Rights Chamber of the present Court would not be able to overcome any of the hurdles described.12 And, of course, the ICJ would then join the ranks of and compete with regional human rights courts which are in many ways already fulfilling a more specialized role; while these regional courts face plenty of challenges of their own, they do not suffer from the just described inherent limitations to which The Hague Court is subject. Returning to the Court’s role as an instrument designed for use by and between States, in contentious cases – and these instances constitute an overwhelming majority of the ICJ’s workload – the Court’s findings will depend on, and essentially be limited, by the submissions ultimately formulated by the Parties. The situation resembles that of domestic civil litigation, characterized by the judicial deference to party autonomy coined in the prohibition of going ultra petita partium. In this regard, the Court is thus ‘hostage’ to the Parties; it is the Parties which remain the masters of the proceedings, and for a variety of legal and strategic reasons they may be more or less inclined to let human rights become part of arguments. Further, while it is true that, at the level of doctrine and theory, contemporary international law undeniably posits a community interest in the respect for human rights (accommodated, for instance, in the International 10   Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, not yet reported (on the Court’s website ). For more on Belgium v Senegal, see section III. B. iv. 11   That is why human rights activists have never given up on the idea of a real, genuine, World Court of Human Rights. 12   For an animated pleading in this regard, cf Zyberi G, ‘Taking Rights Seriously: Time for Establishing a Human Rights and Humanitarian Issues Chamber at the International Court of Justice?’ (2009) University of Prishtina Journal of Human Rights and Policy 103–26. G Zyberi is also the author of the most comprehensive work on the very topic of the present chapter: The Humanitarian Face of The International Court of Justice (Antwerp/Portland, 2008).

16  Bruno Simma Law Commission’s 2001 Articles on State responsibility),13 States have hitherto not shown great willingness, to put it mildly, to enforce such interest by litigating human rights disputes as such before the ICJ, even though, both doctrinally and technically, the possibility of doing so exists.14 On the other hand, the ICJ, however fragile the socio-legal basis for its function may be, is still the only international court in existence worldwide possessing general competence ratione materiae. It is designed to deal with any question of international law whatsoever if it is brought by two or more States that have agreed to do so. Thus, it can also decide, or render advisory opinions on, matters of international human rights law and it can do so at the global, universal level, which distinguishes its role from that of all existing human rights courts. This is precisely what makes the question of the judicial contribution of the ICJ to the development of international human rights relevant after all: the role of the Court as the guardian of universally recognized international law at the entrance gate which human rights precepts have to pass in order to be treated as precepts of law world-wide. In performance of this function, the ICJ has the authority to decide which parts of human rights substance and procedures developed at the regional level by specialized courts can be counted as accepted also at the level of general international law. The same is true with regard to internationally relevant human rights jurisprudence developed by national courts – the recent judgment of the Court in the case of Jurisdictional Immunities of the State between Germany and Italy provides a perfect example.15 Thus, the role of the ICJ which we are perusing here can be described as one of determining, or establishing, the international legal framework within which human rights operate in the international legal realm. In this role, the Court is not alone of course, it will remain open to States to define this framework by their agreement, but the Court’s contribution will always be special through its institutional impartiality and what we could call judicial ‘objectivity’. Let us now see how the ICJ in the role of the gatekeeper of general international law just described has hitherto handled human rights questions. Following this brief overview, I will try to distil from it the elements of what I consider to be a proper role for the Court to play in this field. 13   Cf Simma B, ‘Human Rights and State Responsibility’ in Reinisch A and Kriebaum U (eds), The Law of International Relations – Liber Amicorum for Hanspeter Neuhold (Utrecht, 2007) 359 ff. 14   Cf Tams C, Enforcing Obligations Erga Omnes in International Law (Cambridge, 2005, reprinted 2010), particularly 158 and 364; Article 3 of the Resolution of the Institut de Droit International on Obligations erga omnes in International Law adopted at the 2005 Kraków Session, in: Annuaire de l’Institut de Droit International (2006) 289, and the present author’s Separate Opinion in the Congo v Uganda Case, ICJ Reports 2005, 334 ff, 347 ff. On the Belgium v Senegal Case see section III. B. iv. 15  ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment of 3 February 2012, not yet reported (on the Court’s website ). For more on the case see section III. B. iii.

The ICJ and Human Rights 17 III.  A CONCISE TOUR D’HORIZON OF THE COURT’S HUMAN RIGHTS CASE LAW

A.  A Gradual Build-Up 1949–2007 Up to the 1990s, ICJ jurisprudence relevant to human rights remains scarce and the little we find is marked by hesitation and restraint. This is not surprising in view of the fact that the global human rights project driven by the UN spent several decades concentrating on standard-setting rather than on implementation of norms and later, while gradually and hesitatingly turning its attention to implementation, achieved only very modest progress. Quite naturally, ICJ case law containing human rights elements developed in sync with the widening and thickening of the corpus of international human rights. In the case law we do come across, it is possible to distinguish three ways in which human rights became relevant. In a number of decisions of the Court, human rights considerations appear more or less incidentally, with our rights playing a subordinate role only and thus mentioned rather in obiter dicta, neither developed fully nor always in an entirely positive sense, sometimes even avoided. I would consider Corfu Channel (1949), Barcelona Traction (1980), Tehran (1980), LaGrand (2001) and Avena (2004) as belonging to this group.16 Human rights considerations occupy somewhat more space in a second group of cases, but also here they appear essentially as occasions for the Court to engage in discussions of matters different from human rights proper, even though the subject matter of these cases might be linked to our rights in a technical way; as exemplified in the Advisory Opinion on Reservations to the Genocide Convention (1951), the Opinions on the Interpretation of Peace Treaties (1950), no less than three Opinions relating to the international status of South West Africa (1950, 1955, 1956), in the 1986 judgment in the Nicaragua Case, two Advisory Opinions on the legal status of UN human rights rapporteurs: Mazilu (1989) and Cumaraswamy (1999)17 and the Arrest Warrant judgment of 2002.18 A third cluster is made up of the decisions in which the ICJ developed the right of self-determination of peoples. Even though the relationship 16  For more details on LaGrand and Avena see Simma B, ‘Human Rights before the International Court of Justice; Community Interest Coming to Life?’ in Hestermeyer HP et al (eds), Coexistence, Cooperation and Solidarity. Liber Amicorum Rüdiger Wolfrum (Leiden/Boston, 2012) vol I, 577 ff, 581 f. 17  References; Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion of 15 December 1989, ICJ Reports 1989, 177; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, ICJ Reports 1999, 62. 18  ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3 ff.

18  Bruno Simma between this part of the jurisprudence and the topic of the present article is obvious since UN doctrine regarded, and still regards, the realization of the right to self-determination as amounting to a conditio sine qua non for the enjoyment of individual human rights, I will not pursue the Court’s case law on the matter any further in the present context because I view it as marked by legal-political features that are substantially different from those displayed by the individual-human-rights jurisprudence to be analyzed here.19 Within recent years, however, the picture has changed and cases relevant from a human rights viewpoint have begun to fare more prominently on the ICJ’s docket. The Court has begun to tackle human rights questions – as well as issues of international humanitarian law – in more straight­ forward ways and also had the opportunity to decide cases focusing squarely on allegations of violations of these rights. We observe what could be called changes both in quantity, that is, in the number and relative space on the docket of cases in point, and in quality, that is, with regard to the importance of the human rights elements involved in the overall dimensions of the case law and the attention given by the Court’s decisions to these elements. However, I would still make a distinction here between, on the one hand, cases in which human rights questions constituted one out of several subject-matters to be treated by the Court and, on the other, cases whose merits squarely and centrally turn around human rights. I regard the two Advisory Opinions on Nuclear Weapons (1996) and the Wall (2004), as well as the judgments in the Congo v Uganda (2005) and Genocide (Bosnia Herzegovina v Serbia 2007) cases as belonging to the first-mentioned (sub)group,20 to which I will now briefly turn. In the Nuclear Weapons Opinion, the Court for the first time in its jurisprudence squarely faced and developed views on the substance of human rights, as it were, in particular whether the use of nuclear weapons would violate the right to life embodied in the International Covenant on Civil and Political Rights of 1966 and in regional human rights treaties, and, further, whether such use might constitute violations of the Genocide Convention of 1948.21 As to the right to life, while recognizing that the prohibition of arbitrary deprivation of life consecrated in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) did not lose its validity in times of armed conflict, the Court stated that the matter will then become subjected to the lex specialis of international humanitarian law (to which the Court turned later).   See, however, Simma B (n 16).   I have not included Congo v Rwanda (2006), where the Court was not able to reach the merits of the case because of lack of jurisdiction, but refer the reader to the Joint Separate Opinion of five judges appended to the Judgment, which relates to limits de lege ferenda of reservations excluding ICJ jurisdiction over the Genocide Convention (n 5). 21  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226 ff, 239–40. 19 20

The ICJ and Human Rights 19 In its Wall Opinion, the ICJ found that the construction of the separation barrier/wall on occupied Palestinian territory by Israel resulted, inter alia, in violations of obligations arising from human rights treaties. What is noteworthy in this context is that the Court, for the first time in its history, dealt with economic and social rights of the individuals affected by the Wall and affirmed the extraterritorial effect of the obligations arising under the respective UN Covenant. Further, the Court took the opportun­ ity to somewhat refine its view on the relationship between human rights law and international humanitarian law first enunciated in Nuclear Weapons.22 A year later, in the Congo v Uganda case,23 the Court judged the activities of the Ugandan army in the Democratic Republic of the Congo during the Great Lakes conflict of 1998–2003 as against the yardstick mainly of international humanitarian law but also of the ICCPR, the African Charter of Human and Peoples’ Rights, as well as the UN Convention on the Rights of the Child. It found Uganda responsible for multiple violations of obligations under these treaties without, however, examining the precise circumstances of the instances in which these violations had occurred. In 2007 followed the judgment in the Genocide case, deciding on an application which Bosnia-Herzegovina had brought as early as 1993.24 Like the African case just described, this litigation constituted what I would call a juridical Nebenkriegsschauplatz, in other words, collateral action within the context of a wider political-military dispute. The Court followed the findings of the International Criminal Tribunal for the former Yugoslavia (ICTY), according to which one single incident of genocide, albeit of utmost gravity, had occurred at Srebrenica in July 1995, and declared Serbia in breach of, inter alia, the obligation of prevention embodied in the 1948 Convention, without regarding it as an accomplice in the crime. Despite the essence of the case belonging to the realm of inter­ national humanitarian law, the case can also be qualified as a human rights case, like the still-pending second Genocide case, this time brought by Croatia against Serbia in 1999, in regard to which the Court engaged in a truly remarkable effort to confirm jurisdiction and admissibility in 2008.25

22  ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136 ff, 184–92. 23  ICJ, Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, ICJ Reports 2005, 168 ff, 231–45. 24  ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007(I), 43 ff. 25  ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 18 November 2008, ICJ Reports 2008, 412.

20  Bruno Simma B.  The Recent Cluster of Human Rights Cases In the last few years there emerged a whole cluster of case law with its very focus on human rights, resulting in decisions in which the Court’s treatment of questions of human rights law reached new degrees of intensity. As to the actual success of human rights arguments put forward by the Parties in these cases, what we see is something like a roller-coaster ride: great heights followed by distinct lows. i. Diallo First in our cluster is the Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo).26 Mr Diallo, a Guinean businessman resident in the Democratic Republic of the Congo (DRC) for several decades, had founded two companies in the Congo of which he was Managing Director and later on the only shareholder. When in the late 1980s he resorted to the DRC courts to recover alleged debts from other companies and from the Congolese State, Mr Diallo overstepped the limits of his influence in his host country: he found himself arrested in early 1988 and was not released until a year later. In October 1995, the Prime Minister of Zaire issued an expulsion decree against him and, awaiting expulsion, Diallo was again placed in detention, before he was finally deported to Guinea in 1996. Diallo’s case was brought to the ICJ by Guinea, his State of nationality, in late 1998 in the exercise of diplomatic protection and on the jurisdictional basis of the Statute’s Optional Clause, with Guinea claiming that the DRC, by arbitrarily arresting and expelling Mr Diallo, subjecting him to humiliating and degrading treatment, neglecting his right to information on consular protection,27 depriving 26   Like all the following decisions, the Diallo Judgment on the merits of 30 November 2010 has not yet been published in print in the ICJ Reports, but is available, together with both the written and oral pleadings and the other materials of the litigation on the Court’s website: . For pertinent comments, see the case notes by Andenas M (2011) International and Comparative Law Quarterly 810 ff, and Bjorge E (2011) American Journal of International Law 534 ff. 27   This right had been the subject of two earlier decisions of the ICJ in the LaGrand (2001) and Avena (2004) cases. In the first-mentioned case, Germany had argued that the entitlement of a foreigner to be informed of this right without delay under Article 36(1)(b) of the Vienna Convention on Consular Relations was not only an individual right but had over time assumed the character of a human right proper, akin to an international guarantee of a fair trial. Germany’s position reflected the approach which had already been adopted not only by the UN General Assembly in the 1980s, but also in 1999 by the Inter-American Court of Human Rights in an Advisory Opinion on the question. In its LaGrand judgment of 2001 (LaGrand (Germany v United States of America), 27 June 2001, ICJ Reports 2001, 466 ff), the ICJ avoided pronouncing on the issue (and thus taking any stand on a position taken by another international court but remaining controversial between the Parties to the case before it). Having found that the United States had violated the rights accorded by the Convention to the LaGrand brothers as individual rights, it declared that it did not need to examine

The ICJ and Human Rights 21 him of the exercise of his rights of ownership and management in respect of the companies he had established in the DRC, preventing him from pursuing recovery of the debts owed to himself and his companies, as well as not paying these debts to him and his companies, had breached international law and therefore owed Guinea full reparation. Against these claims, the DRC raised preliminary exceptions as to their admissibility which were dealt with in a first judgment of 24 May 2007.28 While the Court followed the Respondent by declaring inadmissible the protection of Mr Diallo in respect of the alleged violations of the rights of his companies, it admitted the protection of Mr Diallo’s rights as an individual as well as of his direct rights as member of these companies. The judgment of the ICJ dealing with the merits of the case followed on 30 November 2010. The Court threw out what had remained of the original company law claims, that is, the claims based on Mr Diallo’s direct rights connected with his companies. Likewise, it found that the claims regarding Mr Diallo’s first arrest and detention, in 1988/89, had been raised too late in the course of the proceeding. But then the Court turned to the claims relating to the treatment Mr Diallo had received in violation of his rights as an individual and there it found the 1995/96 detention and expulsion to have been arbitrary and in violation both of the ICCPR and of the African Charter on Human and Peoples’ Rights. Mr Diallo’s rights deriving from Article 36(1)(b) of the Vienna Convention on Consular Relations had been violated as well. In contrast, the ICJ did not consider that the treatment to which Mr Diallo had been subjected during and in connection with his detention had been inhumane or degrading. What is noteworthy in our context is that, while in Guinea’s application of 1998 allegations of violations by the DRC of obligations arising under Congolese corporate law, elevated to the level of international (economic) law matters by Guinea engaging in diplomatic protection, had enjoyed distinct priority over the claims of violations of Mr Diallo’s personal Germany’s additional argument claiming human rights status for these entitlements (ibid, 494). This diffidence did not deter Mexico, in the Avena case brought in 2003, to again put to use the German argument with even greater emphasis and to attach farther-reaching consequences to it, by claiming that the Article 36 right ‘is a fundamental human right that constitutes part of due process in criminal proceedings, . . . this right as such is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right’ (Avena and Other Mexican Nationals (Mexico v United States of America), 31 March 2004, ICJ Reports 2004, 12 ff, 60 f). The Court replied first, in confirmation of LaGrand, that whether or not the Vienna Convention rights were human rights was a matter that it did not have to decide, and then went on to observe ‘that neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in this regard’ (ibid, 61). In the Diallo Case, the Court stated the violation of the Article 36(1)(b) right almost routinely, without attaching any doctrinal reasoning. 28  ICJ, Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, 24 May 2007, ICJ Reports 2007 (II) 582 ff.

22  Bruno Simma rights, this strategy underwent a marked change after the ICJ had declared in 2007 that the most important company and shareholders’ law claims were inadmissible. From then on, the human rights aspects rose like a phoenix from the ashes of the case, if I am allowed this rather unflattering metaphor, and enjoyed equal rank with the rest of Guinea’s company law claims, if not priority, in the Parties’ pleadings. In the judgment of the Court, Mr Diallo’s individual rights, now labelled human rights, are all that counts. Mr Diallo’s home State pursued treaty rights, both its own as a State Party to the human rights treaties in question and those that Diallo was entitled to under these instruments. The ICJ turned to the relevant provisions both in the ICCPR, as the global human rights treaty in question, as well as in the African Charter and found that the conditions of lawful expulsion of aliens and of arrest and detention as secured in both instruments had been violated as a consequence, first, of the neglect of the provisions of Congolese law governing these measures and, in the second instance, through the arbitrary manner in which the measures had been applied to Mr Diallo. Another remarkable feature of the Diallo judgment is the way in which the ICJ handled the fact that the case had been brought as a means of diplomatic protection of Mr Diallo’s rights by his State of nationality. What the Court managed to do in this regard was to emancipate the case from the dogmatic straitjacket of diplomatic protection: the judgment goes on speaking of Diallo’s individual human rights as such and does not even try to translate these rights back into rights of Diallo’s home State à la Mavrommatis; it engages in straightforward assessments of breaches of human rights treaty provisions and, as already noted, in so doing expressly refers to, and follows, the jurisprudence of UN and regional monitoring bodies and courts, without engaging in any of the exercises in coyness that had hitherto marked the Court’s relationship with other international courts and tribunals. Only at the very end of the judgment does an element of diplomatic protection resurface, namely with regard to the question of reparation for the injuries suffered by Diallo: such reparation was to be determined through negotiations between the Parties, for which the Courts set a rather tight deadline of six months.29 After this period of time had passed without the Parties having reached agreement, the Court took the case back into its hands and, in a judgment rendered on 19 June 2012,30 awarded Guinea (rather modest) monetary compensation, not without reminding the Claimant State that the sum awarded in the context of diplomatic protection was intended to provide reparation for the injury suffered by Mr Diallo himself. Thus, an inter-State mechan­ism was used by which the affected individual as the   Ibid, para 164.   On the Court’s website .

29 30

The ICJ and Human Rights 23 bearer of the human rights in question is represented at the diplomatic level by his State of nationality; while the individual is the holder of the rights, the judicial enforcement of these rights remains entrusted to the State (faute de mieux, one could say, because in the case at hand, no other, specialized implementation machinery, like an individual communication to a treaty body, was available). I would submit that in so squaring the procedures of diplomatic protection and human rights as direct rights of the individual under international law, the Court in Diallo made an important contribution to the reconciliation of these two areas of the law in a progressive sense, further away from the spirit of Mavrommatis and in line with the recent efforts of the UN International Law Commission (ILC). ii.  Georgia v Russia The roller-coaster ride continued, however, and within six months the heights of Diallo were followed by what I at least consider to be a decidedly low point in our narrative. I refer to the case of Georgia v Russia, submitted by Georgia on 12 August 2008,31 in which the Applicant claimed that the Russian Federation, by the actions of its own organs as well as of the de facto authorities in South Ossetia and Abkhazia in and around Georgian territory, culminating in the armed conflict in August 2008, had breached the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 1965 by subjecting ethnic Georgians to discrimination and not preventing such ethnic discrimination by other participants. Georgia combined its application with a request for the indication of provisional measures in order ‘to preserve [its] rights under CERD to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries’.32 The Court followed the request and on 15 October 2008 issued an order – directed at both Parties – spelling out such measures.33 It accepted a prima facie basis for its jurisdiction, saw no territorial limitation to the reach of CERD, was not impressed by the argument of the Respondent that at no moment during the long dispute between the Parties on the status of South Ossetia and Abkhazia had the rights and obligations deriving from CERD been relied upon, and, with regard to the 31  ICJ, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (application to be found on the Court’s website ). 32   Judgment of the Court on Russia’s preliminary objections (cf (n 6), on the Court’s website), para 3. 33  ICJ, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Order of 15 October 2008, ICJ Reports 2008, 353 ff.

24  Bruno Simma procedural preconditions set up in Article 22 of the Convention,34 found that issues relating to ethnic discrimination had been raised between the Parties even though CERD had not been specifically mentioned; thus an attempt to initiate discussions on matters that would fall under CERD had been made by Georgia and the respective conventional precondition had thus been fulfilled. The order was adopted by a majority of eight votes to seven, which throws a light on the controversial nature of the case. In 2009 Russia raised four preliminary objections against the jurisdiction of the ICJ, in one of them claiming that the procedural requirements of Article 22 of the Convention had not been fulfilled. This time, the majorities on the bench changed. In its judgment of 1 April 2011,35 the Court overruled the prima facie determination underlying its 2008 order and declined jurisdiction by finding that Georgia had fulfilled neither of the two procedural requirements contained in CERD’s Article 22, with its reasoning focusing almost exclusively on the precondition of negotiation prior to recourse to the Court. The majority of the Court was of the view that between 9 and 12 August 2008, Georgia had not attempted to negotiate CERD-related matters with Russia and that, consequently, the Parties had not engaged in negotiations with respect to Russia’s compliance with its substantive obligations under CERD.36 Let me mention two features of the case which are of particular relevance in the context of this chapter. On the one hand, this was a case which, like the Balkan Genocide cases mentioned earlier, turned exclusively around a particular human rights treaty; within an inter-State, and in this sense purely bilateralist, framework – one State party accusing another State party of having committed violations of its obligations under CERD – a constellation that had already come to the fore in the Diallo Case with regard to other human rights instruments and was to repeat itself in the following case of Belgium v Senegal. This jurisprudence ought to put to rest a view of the legal nature of human rights treaties according to which the States Parties to such treaties are condemned to play a role only in something like a juridical side-show, in the (legal) shadow of the individuals as the real repositories of the treaty rights.37 On the other hand, however, if there ever was an instance of ICJ litigation 34   ‘Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement’ (emphasis added). 35   Judgment on the Court’s website . 36   Ibid, para 182. 37   Cf on this view see Simma B, From Bilateralism to Community Interest in International Law (Collected Courses of the Hague Academy of International Law (Recueil des Cours), 1994) vol 250, 217 ff, 364–75.

The ICJ and Human Rights 25 presenting all the features of a legal Nebenkriegsschauplatz, this was the one. iii.  Germany v Italy This case brought to the Court a grim chapter of World War II: severe breaches of international humanitarian law committed by the German Reich in Italy and against Italian nationals after the country surrendered to the Allies in 1943. In recent years a number of victims, respectively their successors in law, instituted proceedings against the Federal Republic of Germany in the Italian courts, claiming that they had not obtained (adequate) compensation for their suffering under respective German legislation. Germany defended itself by claiming jurisdictional immunity also for the acts in question. However, beginning with the Ferrini judgment of 2004,38 the highest Italian Court with jurisdiction on the matter, the Corte di Cassazione, held in a number of cases that sovereign immunity could not protect Germany from civil responsibility for what the Court called international crimes, and that Italian courts thus did have jurisdiction over the claims for compensation originating from these illegalities. Preceding these developments in Italy, analogous cases had been brought against Germany in Greece, culminating in 2000 in the Distomo judgment of the Hellenic Supreme Court.39 When the Distomo Claimants could not succeed in having the Greek judgments enforced either in their country or in Germany, they took their case to Italy, where the courts, including the Cassazione, applied the Ferrini jurisprudence and declared the Greek decisions enforceable in Italy. The Greek Claimants also managed to enter in the Land Registry of the Province of Como a legal charge against Villa Vigoni, a property of the German State. In December of 2008, Germany brought Italy before the ICJ on the basis of the European Convention of 1957 for the Peaceful Settlement of Disputes, claiming that Italy, by allowing the civil suits just described to go forward, as well as by taking measures against Villa Vigoni and declaring the Distomo judgment enforceable in Italy, had breached international law by failing to respect the jurisdictional immunity due to Germany. One year later, in its Counter-Memorial, Italy raised a counterclaim by which it attempted to put the blame, as it were, on Germany, arguing that the Italian victims of the grave violations of international humanitarian law committed by the German Reich during the War who had not obtained compensation from Germany as a consequence of the position taken 38  Italian Court of Cassation, Ferrini c Republica Federale di Germania (United Sections), Judgment 11 March 2004 No 5044, (2004) Rivista di Diritto Internazionale 539 ff. 39  Hellenic Court of Cassation (Areios Pagos), Prefecture of Voiotia v Germany, Case No 11/2000, Judgment of 4 May 2000 (Distomo Massacre Case), 129 International Law Reports 513 ff.

26  Bruno Simma by the German courts as well as the German legislature, had become subjected to a fundamental denial of justice, and that this, ie, the issue of individual reparation, was the real matter in dispute to which the Court ought to turn. In July 2010, the Court declared this counterclaim inadmissible ratione temporis. In January of 2011, Greece filed an application for permission to intervene in the case as a non-party. To the surprise of most observers, the Court authorized Greece to intervene in that capacity, strictly limited, however, to the question of the decisions of the Greek courts declared enforceable in Italy. Thus far, the procedural set-up of the case. The legal issues before the Court were rather clear-cut: would the ICJ, under the impact of human rights considerations, recognize a development in customary international law allowing domestic courts to deny immunity to a foreign State’s sovereign acts if by such acts that State had committed international crimes whose victims have no other recourse, or would the Court confirm the old State-centred rules on immunity also under these circumstances? The Court rendered its judgment on 3 February 2012.40 Although the outcome was no great surprise for the international law profession, it was seen as a big disappointment by the human rights community. The Court found that, by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, Italy had violated its obligation to respect Germany’s jurisdictional immunity. The Court arrived at the same result with regard to the measures of constraint taken against Villa Vigoni and the treatment by the Italian courts of the Greek judgments against Germany. It concluded that Italy, by enacting appropriate legislation or by other means of its choosing, has to ensure that the decisions of its courts and those of other judicial authorities infringing Germany’s immunity ‘cease to have effect’.41 The Court based its decision on the customary international law on State immunity, no conventions on the matter being applicable between the Parties. It clarified that due to the dismissal of Italy’s counterclaim, the question of whether Germany had a duty of reparation towards the Italian victims of the crimes in question and whether and to what measure the Claimant had complied with that obligation, was not before it for jurisdictional reasons ratione temporis; and that in dealing with the merits it would only have to return to that question if it were to find that a failure by a State to (fully) compensate victims ‘is capable of having an effect, in law’ 40  ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment of 3 February 2012, not yet reported (on the Court’s website ). For a more extensive commentary on the judgment see Simma B, Human Rights in the International Court of Justice: Are We Witnessing a Sea Change?’ in Festschrift Pierre-Marie Dupuy (forthcoming). 41   Germany v Italy, ibid, para 139(4).

The ICJ and Human Rights 27 on the existence and scope of that State’s jurisdictional immunity before foreign courts.42 As the Court’s examination of the state of international custom on this matter led to a negative result, the Court ultimately did not have to – indeed would not have had the competence to – delve into the questions of the individual rights of war victims to compensation or the existence vel non of sufficient grounds for the Italian courts for setting aside Germany’s immunity. The Court thus limited its analysis of the law to the question whether in customary international law there had developed an exception to full immunity for acta jure imperii, if these acts consisted of severe breaches of international humanitarian law committed by armed forces in the course of an armed conflict. It arrived at the conclusion that this was not the case and that the established rules on State immunity still stood unchanged. It did so on the basis of an analysis of State, ie judicial, governmental, legislative and, with regard to the scope of the territorial tort principle claimed by Italy, also treaty practice. In conformity with this unambiguous diagnosis, neither the gravity of the underlying violations, nor the alleged character of the rules violated as jus cogens, nor the Respondent’s argument that the Italian courts were justified in denying Germany immunity because all other attempts to secure compensation for the victims involved in the Italian proceedings had failed, nor, finally, the combined effect of all these circumstances, could lead the Court to a different result. Based on the traditional positivist doctrine on the sources of international law and employing an inductive method, the Court’s analysis of the existence of customary international law on State immunity is thorough and comprehensive, at least compared with the cavalier fashion in which the ICJ has come to usually deal with unwritten sources of the law – in this regard, Germany v Italy, together with North Sea Continental Shelf 43 certainly deserve to become the leading cases on the determination of custom. Further, the decision is another instance of what I would call the ICJ’s ‘yes, but’ approach to jus cogens: the Court, while accepting that certain rules of international law do have peremptory character, refuses to also accept the legal consequences of this result claimed by the party relying on such rules – in our case the retreat of sovereign immunity.44 Finally, I do not want to conceal that Francesco Francioni is to be   Ibid, para 50.  ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3. 44   Cf the Congo v Rwanda judgment of 2006 (n 5), in which the Court accepted that the prohibition of genocide at the basis of the respective Convention of 1948 had the character of jus cogens, but that this qualification did not spill over into the jurisdictional part of the Convention and could not invalidate reservations excluding ICJ jurisdiction. For the Court’s analogous approach in the Belgium v Senegal case if the text infra following n 64. 42 43

28  Bruno Simma counted among the (mainly, but not only Italian) observers whose evaluation of the Germany v Italy judgment has been extremely critical. For him, in this case, ‘the reason of justice and the right of access to judicial remedies are trumped by a deferential interpretation of the rule of sovereign immunity’.45 He regards the judgment as a re-statement of the overriding importance of the traditional black-box value of sovereignty and state-centred immunity at the expense of the contemporary value of individual access to justice, effective remedy for victims of gross violations of human rights, and the fight against impunity for heinous crimes.46

I was a member of the Court participating in the decision and thus I am not supposed to comment in any depth on the judgment. But let me state frankly that I cannot agree with Francesco’s criticism. For me, the decisive issue on which the hopes of the human rights community and that of my friend were misguided was the expectation that a denial of State immunity before domestic courts could serve as an effective remedy for the victims of State mass crimes of World War II calibre. I am genuinely convinced that such expectations aimed at an inappropriate and unsuitable target. The juridical ‘closure’, as it were, necessary after humanitarian catastrophes like the one lying at the basis of Germany v Italy, must be accomplished by other means, on the basis of diplomatic negotiations, leading for instance to lump sum settlements (like the ones that took place between the two countries) or to the establishment of mechanisms for the settlement of large numbers of compensation claims like the Mixed Claims Commissions which international practice has long known and successfully used, or, more recently, the UN Compensation Commission created after the first Gulf War and the Iran-United States Claims Tribunal established by the 1981 Algiers Accords. The judgment shows some awareness of this.47 Besides, it states expressly that the claims of Italian nationals, military internees as well as civilians, which had allegedly not been settled ‘could be the subject of further negotiation involving the two States concerned, with a view to resolving the issue’,48 thus referring Italy back to a more suitable way of redressing injury, in which, of course, the question of how Italy had distributed payments received from Germany on the basis of two agreements concluded in 1961 would also be open to investigation.49 I must confess that I cannot see anything awkward50 in the 45   Francioni F, ‘From Utopia to Disenchantment: The Ill Fate of “Moderate Monism” in the ICJ Judgment on the Jurisdictional Immunities of the State’ (2012) European Journal of International Law C2, 1125 ff. 46   Ibid, 1128. 47   Germany v Italy (n 40) paras 101f. 48   Ibid, para 104. 49   Cf on these treaties ibid, paras 24 f. 50  But cf Francioni F (n 45) 1129.

The ICJ and Human Rights 29 Court’s expression of ‘surprise and regret’51 about the fact that the Italian prisoners of war subjected to inhumane conditions of forced labour in Germany remained excluded from an otherwise comprehensive German scheme of compensation of war victims. Let me now turn to the final act of our drama – in which the Court brought its recognition of the impact of human rights on international law to a resounding crescendo. iv.  Belgium v Senegal The application introduced by Belgium against Senegal in February 2009 relating to the obligation to prosecute or extradite52 appears to me as the most clean-cut, ‘unpolitical’, as it were, human rights case so far brought before the Court. If a fully-fledged droits de l’hommiste53 were to express it somewhat colloquially: this is a human rights case which is almost too good to be true. Belgium came to the Court to vindicate its right as a State Party to the UN Convention against Torture of 1984 (CAT) as well as under customary international law, to see that Mr Hissène Habré, the former dictator in Chad and alleged perpetrator of acts of torture and other crimes during his violent reign in the 1980s, for a long time having been present in Senegal, would either be prosecuted by Senegal, also a Contracting Party to CAT, or, failing such prosecution, would be extradited to Belgium – in other words, that Senegal fulfil the obligation of aut dedere aut judicare it owed to Belgium. Belgium claimed that this obligation had been violated by the Respondent’s handling of the CAT obligations in point. As to the basis for standing in the case, the Applicant did not frame its request in terms of diplomatic protection of Belgian nationals except very marginally. While the Application mentioned that at the domestic level, the case was triggered by complaints to the Belgian courts made, among others, by a Belgian national of Chadian origin and taken up by the Belgian judiciary in the exercise of the passive personality principle,54 this link retreated to the background in Belgium’s further pleadings. Instead, Belgium attempted to base its locus standi, first, on its specific position as the particular party to CAT which had (in the pursuit of the passive personality principle just mentioned) set into motion vis-àvis Senegal the inter-State procedures embodied in the Convention designed to prevent impunity through the operation of the principle aut punire aut dedere and had thus acquired a special interest in Mr Habré   Germany v Italy (n 40) para 99.   Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, not yet reported (on the Court’s website ). 53   In the sense coined by Pellet A; cf ‘Droits de l’hommisme et droit international’, Gilberto Amado Lecture held on 18 July 2000 at the United Nations (Geneva); English translation: ‘Human Rightism and International Law’ (2000) Italian Yearbook of International Law 3 ff. 54   Application instituting proceedings, Belgium v Senegal, 16 February 2009, 1, para 3. 51 52

30  Bruno Simma being brought to justice, if necessary in Belgium. Secondly, Belgium referred to the nature of the rights and obligations embodied in CAT to the effect that this treaty establishes for any State Party the legal right to see to it that any other State Party fulfil the obligation correlative to this right, that is in our context, the obligation to either prosecute or extradite. Belgium regarded this obligation as arising erga omnes partes to the Convention. It thus based itself on an exclusively inter-State construction of CAT, which, by the way, perfectly fits the structure of the Convention itself: CAT contains nothing but a set of obligations for its States Parties and nowhere mentions the premise of these duties, namely the individual human right to be free from torture; rather, the Convention presupposes the prohibition of torture as enunciated in other human rights treaties, above all the ICCPR, as well as anchored in rules of general international law juris cogentis. Significantly, Senegal appeared to agree with Belgium’s view of the situation in conventional as well as customary international law. Again, what we have before us here is an understanding of the rights and obligations arising for States Parties to human rights conventions which do not rest on lofty constructs of ‘objective’ obligations under such treaties, but retains the emphasis on mutually-bound States Parties and their responsibility to keep the treaties alive. It also deserves to be mentioned that Belgium v Senegal was the first instance in which a remarkably progressive construct introduced by the ILC in its Articles on State responsibility of 2001,55 was put to use before the ICJ, namely the possibility of invocation of such responsibility also by ‘States other than injured States’. Presenting the double basis of its standing in terms of State responsibility, Belgium not only claimed that it was an injured State within the meaning of ILC Article 42 due to its special interest in the prosecution of Mr Habré, but also put forward, as a sort of fall-back position, that it had locus standi also as a State other than an injured State in the sense of Article 48 of the ILC code.56 Immediately after the filing of its application, Belgium had also requested the Court to indicate provisional measures requiring Senegal to keep Mr Habré under its control and surveillance during the proceedings. After Senegal’s Agent had made a promise in this regard, the Court did not find it necessary to take this step.57 The Court rendered its judgment on 20 July 2012.58 While it found that it had no jurisdiction to entertain claims of violations of customary inter-

  On this concept cf my contribution to the Festschrift for Hanspeter Neuhold (n 13).   With particular clarity in its response to a question put by Judge Cançado Trindade at the end of the public sitting of 8 April 2009, Doc BS 2009/15 (15 April 2009) 4 (on file with the author). 57   Order of 28 May 2009 (on the Court’s website ). 58   Belgium v Senegal (n 52). 55 56

The ICJ and Human Rights 31 national law committed by the Respondent,59 it concluded (by an overwhelming majority of votes) that the Belgian claims based on Articles 6(2) and 7(1) of CAT were admissible and that Senegal had breached its obligations under these two provisions by failing to undertake immediately a preliminary enquiry into the facts relating to the crimes allegedly committed by Mr Habré and to submit his case to its competent authorities for the purpose of prosecution. From the perspective of international human rights law, two aspects of the judgment deserve particular attention. The first is its position on the matter of Belgium’s standing, conceived as a question of admissibility. The Court avoided any discussion of the first, and more contentious, limb of Belgium’s reasoning in favour of locus standi, that is, a basis derived from nationality, passive personality and Belgium’s particular position as a State which, on the basis of these two links, had requested Senegal to either prosecute or extradite. Thus, the judgment did not take a stand on the ILC’s Articles on invocation of State responsibility I have just referred to (see further below). Instead, the Court resorted to the arguments put forward by the Applicant on the particular nature of the obligations of CAT and considered ‘whether being a party to the Convention is sufficient for a State to be entitled to bring a claim to the Court concerning the cessation of alleged violations by another State party of its obligations under that instrument’. The ICJ answered this question with a resounding ‘yes’.60 It set out by emphasizing the common interest of the States Parties to CAT to ensure the prevention of torture and that penetrators of torture will not enjoy impunity. The Court then subjected the obligations under CAT to closer analysis and in so doing made a decisive contribution to the theory of the structure of the obligations deriving from human rights treaties. First, the Court clarified that in order to achieve the aim pursued by CAT, the obligations of a State Party to conduct a preliminary enquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of an alleged offender in its territory, regardless of the nationality of the offender or of the victims, or of the place where the alleged offences occurred. The Court continued by stressing that all the other States Parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present: That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. All the States parties 59  According to the Separate Opinion of Judge Abraham (paras 6 ff), the Court should have accepted jurisdiction on this matter and then have refused to accept the existence of a duty under customary international law to make use of the principle of universal criminal jurisdiction in the way done by Belgium. 60   On the following, see Belgium v Senegal (n 52) paras 68–70.

32  Bruno Simma ‘have a legal interest’ in the protection of the rights involved . . .61 These obligations may be defined as obligations erga omnes partes’ in the sense that each State party has an interest in compliance with them in any given case.62

According to the Court, the common interest in compliance with the relevant obligations under CAT thus implies the entitlement of each State Party to make a claim concerning the cessation of an alleged breach by another State Party: If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.

For these reasons, the Court concluded that Belgium had standing to invoke the responsibility of Senegal for the alleged breaches and that, therefore, the claims of Belgium were admissible. In view of this finding, the Court saw no need to deal with the question of Belgium’s special interest in compliance with the CAT obligations by Senegal and the consequences of this particular position of the Applicant for its standing and the measures available to it to induce Senegal to return to performance of CAT obligations. On the other hand, what the Court did accept as the basis for Belgium’s entitlement to bring Senegal before the ICJ lets the Applicant appear as a perfect example of a State ‘other than an injured State’ within the meaning of the ILC’s 2001 Article 48(1)(a), according to which such a State ‘is entitled to invoke the responsibility of another State . . . if . . . [t]he obligation breached is owed to a group of States including that State and is established for the protection of a collective interest of the group.’ Taking a step back and assessing this part of the judgment as to its added value for the development of human rights doctrine by the Court, I suggest that the following distinction is to be made: viewed in the abstract, the verdict is decidedly positive. In the wake of the ILC’s 2001 broadening of the range of States entitled to invocation of responsibility and developing this entitlement into a jus standi before the Court, as well as by letting the concept of treaty obligations erga omnes partes share the dignity of that of obligations erga omnes in the sense of the Barcelona Traction case, the judgment’s paras 68–70 recognize the particular status of human rights treaties and provide them with sharper teeth, so to speak. Regarding the 61   The Court here refers to the well-known passage in its Barcelona Traction judgment of 1970, ICJ Reports 1970, 3 ff, 32, para 33. 62   At this point, the Court quotes the classic passage in its Advisory Opinion on Reservations to the Genocide Convention, in which it referred to the common interest, rather than individual interests of the States Parties of their own, in the performance of that Convention (ICJ Reports 1951, 15 ff, 23).

The ICJ and Human Rights 33 specific circumstances of the case at hand, however, while its option for the erga omnes partes solution as a matter of admissibility allowed the Court to avoid having to answer certain more difficult and disputed questions that would have posed themselves if it had (also) taken up the issue of the legal effect of the special interest claimed by Belgium, the Court’s solution deprived Belgium of its particular position (in ILC terms: of its quality as an injured State within the meaning of Article 42) and reduced its status to that of just one State Party to CAT among the omnes, with a corresponding limitation of the legal remedies at its disposal.63 But again, in the case at hand this negative side effect played no role because the Court dealt with admissibility and the merits in one and the same phase of the proceedings.64 The second feature of the judgment to which I want to draw attention is to be found in the context of the ICJ’s treatment of the temporal scope of the Convention, relating to the application of CAT’s provisions in question.65 The Court determined that Senegal’s obligation to prosecute commenced with CAT’s entry into force for Senegal in 1987; Belgium on its part, was entitled to invoke the Respondent’s responsibility and request the ICJ to rule on Senegal’s compliance with effect from 1999, ie, when it became a Party to the Convention. There appears to be nothing remarkable about these findings – above all, it deserves to be emphasized that the Court does not equip the obligations of CAT with the mysteriously ‘objective’ character recognized for those under the European Convention of Human Rights in the (old) Strasbourg Commission’s Pfunders Decision of 196166 and since then accepted as an unquestioned mantra in the mainstream literature on human rights. However, then, in the middle of its discussion on the scope ratione temporis of the CAT provisions in question, 63   Cf para 2 of ILC Article 48; see also the Declaration of Judge Owada, paras 15 ff. Judges Skotnikov and Xue frontally attacked the majority’s erga omnes partes concept and the conclusions drawn from it in favour of a jus standi for the omnes (cf Separate Opinion of Judge Skotnikov, passim; Dissenting Opinion of Judge Xue, paras 2 ff). However, their argument to the effect that the permissibility of reservations to CAT and the optional nature of the interState communications procedure contained in CAT Article 21 prove that the States Parties to the Convention did not intend to create treaty obligations erga omnes partes, does not seem correct. As a very general observation, human rights treaties share the erga omnes partes nature of obligations diagnosed by the ICJ in Belgium v Senegal (n 52) despite the abundance of reservations precisely to human rights treaties. What is called for here is a regime custommade for reservations to such treaties. More particularly, concerning the optional character of CAT’s Article 21, I share the view expressed by Judge Donoghue in para 16 f of her Declaration that here we have to deal with two different matters. Again, several human rights treaties’ dispute settlement mechanisms are characterized by such flexibility. Procedural provisions in these treaties cannot detract from the erga omnes partes character of substantive obligations. 64   Cf Declaration of Judge Donoghue, para 15. 65   Belgium v Senegal (n 52) paras 96 ff. 66   Decision of the European Commission of Human Rights on the Admissibility of Application No 788/60 lodged by the Government of the Federal Republic of Austria against the Government of the Republic of Italy; cf Simma B (n 37) 364 ff.

34  Bruno Simma the Court, rather abruptly, states that in its opinion, ‘the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)’.67 The ICJ views this prohibition grounded in a widespread international practice and on the opinio juris of States: It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966; General Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.

Such recognition by the ICJ of the customary and peremptory status of the prohibition of torture at the basis of CAT is to be welcomed. With it, the Court has finally confirmed what the ICTY had found the law to be in its Furundzija Decision no less than 14 years ago.68 Two observations are apt to somewhat dampen the enthusiasm of the human rights-minded observer (at least the present one), however. First, what follows the one paragraph of the judgment dealing with jus cogens is a big ‘however’: the temporal scope of the obligations deriving from the prohibition of torture remains limited to that of CAT. The 2012 judgment thus replicates what the Court did to jus cogens in the first decision in which it gave up beating around the bush and used the term, six years earlier in Congo v Rwanda: while it recognized that certain rules had become jus cogens, this did not mean that the consequences claimed to derive from this higher rank actually had to be drawn. Secondly, the way in which the Court explains the anchoring of the prohibition of torture in customary international law is cursory, to put it mildly, and compares unfavourably with the thorough analysis of the elements of the customary norms on State immunity made by the Court in the Germany v Italy judgment only half a year earlier. Not a word is lost on the reasons etc of the prohibition’s jus cogens nature or on the particular problems of determining the pedigree of human rights obligations deriving from non-treaty based sources.69 But of course we have not been spoiled by the Court in this regard and thus any judicial acknowledgment of the existence of jus cogens, however summary, is a welcome sign of the ICJ finally ridding itself of its blinders vis-à-vis progressive elements in international law. If I may be allowed to make what some might regard as a risqué observation: would we be totally off the mark in seeing a certain parallel here   Belgium v Senegal (n 52) para 99.   ICTY, Prosecutor v Anto Furundzija, Case No IT-95-17/1-T, judgment of 10 December 1998 [on the 50th anniversary of the Universal Declaration!], particularly paras 147 ff. 69   Cf, for instance, Simma B and Alston P, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1992) Australian Yearbook of International Law 82 ff. 67 68

The ICJ and Human Rights 35 with Barcelona Traction as a ‘left turn’ following the Court’s 1966 South West Africa judgment – some, maybe unconscious, attempt to mitigate the disappointment of the droits de l’hommistes caused by Germany v Italy by what could be called a (slightly simplistic) turn in favour of human rights dogmas in Belgium v Senegal? IV.  ELEMENTS OF A PROPER ROLE FOR THE COURT IN HUMAN RIGHTS LITIGATION

A.  A Word of Caution Before the just mentioned droits de l’hommistes will get carried away by the saga of the human rights cases thus concluded, let me express a word of caution. At the outset, it is to be noted that what we have witnessed in the last few years, starting with Diallo and, in a way, cumulating with Belgium v Senegal, appears to have been a singular accumulation of cases with an emphasis on human rights. The emergence of such a cluster seems to me to have been purely coincidental. A look at the list of cases currently pending before the Court (that is, in early 2013) does not impress me as similarly human rights-heavy.70 Besides, as we have seen, not in all of the cases forming this cluster, have human rights claims carried the day. What is also true, however, is (and I apologize for this outworn metaphor) that the genie of human rights has escaped from the bottle. Human rights considerations permeate more and more areas of international law; hence we will be safe in assuming that they will also continue to present themselves before the Hague Court. Already now, albeit yet to a modest degree, the ICJ has joined Strasbourg, San Jose and Arusha as a source of human rights jurisprudence. What remains to be answered is the question whether the ICJ should – and could – develop a role for itself in the human rights field in which it will not just find itself ‘besides’ the regional human rights courts, but would be able to perform functions that these courts would not be in a position to fulfil as well as the ICJ. But at this point, again, a word of caution is due. First, let me mention only in passing (because I consider this point to be so obvious) that, as a generalist court, the ICJ ought by all means to avoid levelling the quality of the human rights acquis reached by the specialized courts just mentioned. My next remark might be regarded as more problematic by human rights lawyers (who, in the words of the first Director of the UN Division of Human Rights, are ‘notoriously wishful thinkers’71). I have been an 70   Rather, there is hope that we might see some contributions to international environmental law. 71   Humphrey J, ‘Foreword’ in Lillich R (ed), Humanitarian Intervention and the United Nations (Charlottesville, Virginia, 1973) VII.

36  Bruno Simma observer, and also a participant, in the human rights project carried forward at the global, UN, level for several decades, after paying attention to it first as a scholar, then as a member of a human rights treaty body, followed by six years in the ILC, and finally as a judge at the ICJ. Such long exposure to the words and deeds of the intergovernmental ‘concern’ with human rights has, however, not been able to dispel the feeling that when we let human rights be handled by governments, we find ourselves on very thin ice indeed. Governments remain the makers and the breakers of international human rights; human rights are a nuisance to all of them at times, and to some an existential threat. This leads me to conclude that human rights are a part of international law in regard to which our Court, too, had better tread with utmost care. In reaching out to human rights, it ought to remain aware of the relatively fragile socio-political basis on which its jurisdiction still rests, despite the growth in popularity that the Court appears to enjoy at present. Might at least part of its clientele not be somewhat unpleasantly surprised if the ICJ, to whose jurisdiction States might have consented with the expectation that what they could possibly become confronted with at The Hague would be inter-State litigation of the traditional kind, began to assume more pronounced features of a human rights court, turning States’ insides out? Let me instantly clarify that I do not advocate a return by the ICJ to more respect for those features of sovereignty that have been obstacles in the way of human rights. All I plead for is caution and political sensitivity – on the part of the Court as well as of States considering bringing cases before it. Finally, [w]e should accept that the International Court is principally a transactional court, focusing on the cases placed before it, and that the primary audience for its pronouncements is the parties in the instant case, with any consequent normative development being a secondary consideration.72

B.  The Court as a ‘Mainstreamer’ of Human Rights In my view, the most valuable contribution the ICJ can make to international human rights is what could be called the juridical ‘mainstreaming’ of these rights, in the sense of integrating human rights into the fabric of international law. Thus, the Court can render human rights arguments more acceptable to international law generalists by interpreting and applying human rights norms in what could be called ‘orthodox’ ways, compared for instance to the not-infrequent handling of such norms by UN human rights treaty bodies in a spirit of wishful thinking rather than by proper legal analysis. Further, the Court can devise solutions for more technical legal problems arising at the interface of human rights and more   Scobbie I (2012) European Journal of International Law (n 2) 1087.

72

The ICJ and Human Rights 37 traditional international law. Thus, it can play a major role in determining the international legal framework within which international human rights operate. In this direction, the Court has already made quite substantial contributions, albeit with differing degrees of success (depending on the viewpoint of either human rights-minded or more ‘statist’ observers). Let me turn your attention to the following developments in ICJ case law: i.

I n recent decisions the Court has contributed to the clarification of the nature of human rights treaty obligations: such treaties do consecrate rights for individuals, it is true, but they also remain instruments which establish rights – and correlative obligations – for their States Parties, that is, they link their Parties essentially in the same way as other multilateral treaties and grant each State Party the right to enforce performance by the others or, if this avenue is available, vindicate such performance in judicial proceedings.73 Such clarification is welcome and necessary to rid our treaties of mystifications of the kind propagated by influential voices in human rights jurisprudence and doctrine, according to which such instruments embody what this school calls ‘objective’ obligations, with their States Parties being relegated to play little more than a supporting role. Such a doctrine may have some justification if limited to regional human rights regimes in which independent courts possessing compulsory jurisdiction provide a genuine collective guarantee of the treaty rights (and how many do we have of these?), but in the rougher environment of global human rights, ‘objectivizing’ human rights treaties contributes to pulling the few teeth they have.74 ii. Already in the formative years of the human rights movement, the Court has triggered the development of a special regime of reservations to human rights treaties75 and has assisted in the solution of several other questions of the law of treaties applying particularly to such instruments, for instance, by its confirmation of the case law of regional human rights courts and UN human rights treaty bodies on the territorial scope of human rights treaty obligations.76 iii. The Court has participated in the development of the doctrine of positive obligations deriving from human rights by giving contours to obligations of prevention.77   Cf my observations on the Diallo, Georgia v Russia and Belgium v Senegal cases.   On this, see Simma B (n 37) 368 ff. 75   Cf the Court’s 1951 Advisory Opinion on Reservations to the Genocide Convention as well as its judgments in the Congo v Uganda (2005) (n 23) and Congo v Rwanda (2006) (n 5) cases. 76   Cf paras 104–13 of the Wall Opinion of 2004 (n 22) and the Court’s 2008 Order on Provisional Measures in the Georgia v Russia case (n 33). 77   The most important contribution being paras 428–32 of the Court’s Genocide judgment (2007) (n 24). 73 74

38  Bruno Simma iv. T  urning to issues of State responsibility, the Court has dealt in several decisions with problems of attribution to States of human rights violations by non-State actors.78 v. Likewise, it has adapted rules on State responsibility to fit the special situation of human rights violations.79 vi. The Court has attempted to clarify the relationship between human rights law and international humanitarian law.80 vii. Of particular relevance, albeit not to the satisfaction of human rights activists, the Court has engaged in setting priorities between norms and obligations in the field of human rights and norms and obligations belonging to other realms of international law of the more conservative, State-centred kind, in particular the traditional rules on immunities of States and their agents.81 viii. Finally (and this is a slightly broader observation), the Court has accepted and developed, albeit in somewhat meandering ways, what I would call international legal ‘vehicles’ which the human rights movement active at the international legal level is using to invest these rights with a higher degree of legal authority (I would continue to say ‘and thus constitutionalize’ them, if I did not have serious reservations vis-à-vis this fashion). What I am referring to here are the doctrines of jus cogens and of obligations erga omnes. While the present chapter is not the place for tracing the Court’s position towards the first category and the reasons for its reticence in any detail (this will have to wait for another Festschrift), let me just repeat my observation on the Belgium v Senegal case: while the Court, since the Congo v Rwanda judgment of 2006, does not shy away anymore from at least pronouncing the term, what could be called its contribution to the doctrine of peremptory international law has hitherto essentially consisted in stating that, although some rules might have been proven to have this higher status, this does not mean that the consequences which its protagonists claim to derive from this rank, actually follow. Thus, there is a car in the garage, to use Professor Brownlie’s metaphor,82 but the Court apparently prefers to leave it right there.

  Cf Genocide (2007) (n 24) and Congo v Uganda (2005) (n 23).  Above all, concerning responsibility for the breach of negative as well as positive (cf note 72) obligations in the 2007 Genocide judgment (n 24), concerning reparation for the nonprevention of genocide in the same case, and more recently, concerning reparation for human rights violations for the benefit of the individual victim in the Diallo case (n 8) (on which is given in more detail in the text). 80   In its Advisory Opinions on Nuclear Weapons (1996) (n 21), paras 24–25, and the Wall (2004) (n 22), paras 104–106. 81   I refer to the Arrest Warrant/Yerodia judgment of 2002 and Germany v Italy (n 40). 82  Brownlie I, ‘Comment’ in Cassese A and Weiler JHH (eds), Change and Stability in International Law-Making (Berlin, 1988) 110. 78 79

The ICJ and Human Rights 39 The ICJ has shown less hesitancy towards obligations erga omnes. Indeed, it put the concept (back83) on the stage in the Barcelona Traction case in order to demonstrate to its clientele that it wanted to return onto the politically correct track after the 1966 aberration of South West Africa. In its East Timor judgment of 1995, the Court started what a little earlier I called a meandering course when it agreed with Portugal that the right to selfdetermination was a right erga omnes (from which in Portugal’s view it followed that it could require Australia to respect it regardless of the behaviour of Indonesia).84 In the Wall Opinion of 2004, the ICJ returned to the notion of obligations of erga omnes nature (as opposed to rights) but then appears to deduce from the violation of such obligations by Israel the existence of obligations on all other States.85 In view of this conceptual overkill, the Court’s recent rather sober exposition of obligations erga omnes partes is very welcome. In sum, the concept of obligations erga omnes might be ‘murky’, but it is far from being abandoned by the Court, as Jan Klabbers erroneously assumed.86 On the contrary, it is here to stay and the human rights community will continue using this vehicle. V.  CONCLUSION

In his criticism of the Germany v Italy judgment to which I referred earlier, Francesco Francioni stated that the lesson learned from that decision ‘suggests that international courts are not always the vehicle for advancing international law towards the goal . . . [of] . . . the development of the human dimension of international law, the minimization of violence, the respect of human dignity, and social justice’.87 I cannot but agree. As concerns the ICJ, the opportunities for the Court to contribute to the development of international human rights law are limited by its main function to decide disputes between States; thus windows of opportunity to go beyond the ‘transactional’ will essentially depend on how the Parties to a case frame their claims. It is not to be expected that States will select the ICJ to frontally adjudicate pronounced human rights cases and, for reasons that I have just set out, this is a limitation which ought not greatly concern us. The Court has a very particular role to play, and indeed does so already, in the realization of human rights – maybe a relatively modest role, but one where it can do best.   On the uses of the concept prior to Barcelona Traction, see Tams C (n 14) 76 ff.  ICJ, Case concerning East Timor (Portugal v Australia), judgment of 30 June 1995, ICJ Reports 1995, 90 ff, 102 (para 29). 85   Wall Opinion (2004) (n 22) 136 ff, 199, paras 155 ff. This extension of the concept led Judge Rosalyn Higgins to complain that ‘[t]he Court’s celebrated dictum in Barcelona Traction . . . is frequently invoked for more than it can bear’, ibid, Separate Opinion, 216. 86   Klabbers J, ‘Probing Precedent: Principles, Politics and “Public” International Law’ (2001) Turku Law Journal 71 ff, 80. 87  Francioni F (n 45) 1111. 83 84

2 The Progressive Development of Peoples’ Rights in the African Charter and in the Case Law of the African Commission on Human and Peoples’ Rights ABDULQAWI A YUSUF*

T

I. INTRODUCTION

HE AFRICAN CHARTER on Human and Peoples’ Rights, also known as the ‘Banjul Charter’, was adopted in 1981 and entered into force in 1986. It is the cornerstone of human rights protection in Africa.1 One of the main purposes of the Charter was to establish a human rights protection system which reflected the specificities of the African continent.2 It was widely felt in African countries that Western approaches to human rights, centred as they are on the individual, did not adequately address certain human rights considerations deemed import­ ant in African societies, such as collective rights.3 Thus, the African Charter shifts the traditional paradigm of human rights theory through an extensive coverage of peoples’ rights, placing these col­ lective rights on an equal footing with the rights of the individual. In the words of Fatsah Ouguergouz, ‘through its emphatic enshrinement of the * The author wishes to thank Ms Ciara Murphy, a university trainee at the Court in 2012/2013, for her extensive research of the case law of the African Commission and for her effective assistance. 1   Ouguergouz F, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague/London/New York, 2003) 372. 2   Ouguergouz F, ‘African Charter of Human and Peoples’ Rights’, Max Planck Encyclopedia of Public International Law, online edition www.mpepil.com, last updated in 2010. 3  Rapporteur’s Report, Annex, Report on the Draft African Charter presented by the Secretary-General at the 37th Ordinary Session of the OAU Council of Ministers, Nairobi, Kenya, CM/1149 (XXXVII), 15–21 June, 1981.

42  Abdulqawi A Yusuf rights of peoples, the African Charter can be seen as a revolutionary legal instrument’.4 It is therefore befitting to discuss the progressive development of peoples’ rights in the African Charter and in the case law of the African Commission on Human and Peoples’ Rights in a Liber Amicorum for Professor Francesco Francioni, whose own scholarly work has contrib­ uted so much to a better understanding of peoples’ rights, not only at the universal level but also under the African Charter. II.  THE EMERGENCE OF PEOPLES’ RIGHTS IN INTERNATIONAL LAW

The contemporary notion of peoples’ rights finds its origin in Article 1 of the Charter of the United Nations, which states that one of the purposes of the UN shall be ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peo­ ples’. The principle of equal rights and self‑determination of peoples played a decisive role during decolonization and in the recognition of the right to independent sovereign statehood of peoples subjected to colonial oppression and alien domination in international law. This might not have been the original intention of the drafters of the Charter. Nonetheless, the proclamation of the principle of equal rights and self‑determination of peoples in the Charter made the continued colonization or domination of one people by another legally and politically impermissible. Moreover, Chapters XI and XII of the Charter, concerning Non-SelfGoverning Territories and the International Trusteeship System respec­ tively, refer to the interests and well-being of the peoples of colonized and trust territories which are to be respected,5 to the promotion of the peoples’ ‘political, economic, social and educational advancement’,6 and to ‘. . . the freely expressed wishes of the peoples concerned’.7 Furthermore, Article 80 stipulates that the trusteeship system – which replaced the mandate system in place under the League of Nations – must not affect ‘the rights whatsoever of . . . any peoples’. In order to give effect to the Charter principles, the UN General Assembly, in its Resolution 1514(XV) of 14 December 1960, declared that ‘the subjec­ tion of peoples to alien subjugation, domination and exploitation’ consti­ tutes a denial of human rights contrary to the UN Charter and an impediment to the promotion of world peace and security. The Assembly then proclaimed that ‘all peoples have the right to self‑determination; by   Ouguergouz F (n 2) 372.   See Articles 73 and 76, United Nations Charter. 6   Article 76(a), ibid. 7   Article 76(b), ibid. 4 5

Peoples’ Rights and the AfCHPR 43 virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. Thus, coloniza­ tion, foreign occupation and alien domination were declared not only to constitute a violation of the equal rights of peoples, and consequently con­ trary to the Charter, but also to give rise to a right of the peoples concerned to determine their political status and decide on their destiny free from for­ eign pressure. This is indeed the manner in which the interaction between the two concepts operates in the context of the principle, with the violation of equal rights of peoples giving rise to a right to self‑determination, while the exercise of the latter leads to the realization or restoration of the equal rights of the peoples concerned. The International Court of Justice (ICJ) has played a key role in the development of peoples’ rights. It first dealt with the issue in its Advisory Opinion on Namibia in 1971.8 In this opinion, the Court made two funda­ mental contributions. First, the Court, after having referred to Article 80, paragraph 1, of the UN Charter, pointed out that ‘a striking feature of this provision is the stipulation in favour of the preservation of the rights of “any peoples”, thus clearly including the inhabitants of the mandated ter­ ritories and, in particular, their indigenous populations’.9 By emphasizing the rights of dependent peoples, the Court took the view that peoples, as such, could be holders of rights and bearers of obligations in international law. The Court’s pronouncement came at a time when it was generally believed that only States could have such rights and obliga­ tions. The Court also declared that the principle of self-determination was applicable to all dependent peoples. A few years after the Namibia Advisory Opinion, the Court had to deal with the issue of Western Sahara,10 and took this opportunity to further elaborate its views on self-determination which it now characterized as a ‘right of peoples’.11 The Court thus shifted from its position in the Namibia Advisory Opinion, where it still referred to a ‘principle of self‑ determination’,12 making it clear in the Western Sahara case that its reference in this advisory opinion to a ‘right of peoples to self‑determination’13 was a reflection of the evolution that the principle of self‑determination had undergone in the practice of the UN, particularly as a result of Resolution 151414 of the UN General Assembly. Not only did the self-determination of 8  ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16 (hereafter Namibia Opinion). 9   Ibid, 33, para 59. 10   Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 12 (hereafter Western Sahara). 11   Ibid, 31, para 55. 12   Namibia Opinion (n 8) 31, para 52. 13   Western Sahara (n 10). 14   United Nations General Assembly, Fifteenth Session, 947th Plenary Meeting, 14 December 1960, A/RES/1514(XV) (cited in Western Sahara, ibid, 31, para 55).

44  Abdulqawi A Yusuf peoples move from a principle to a right, but according to the Advisory Opinion of the Court, it had become a customary rule of international law which had to be respected and applied by all members of the international community.15 III.  PEOPLES’ RIGHTS UNDER THE AFRICAN CHARTER: A QUANTITATIVE AND QUALITATIVE LEAP?

The provisions relating to peoples’ rights are contained in Articles 19 to 24 of the African Charter. The opening provision deals with the equal rights of peoples. Besides its enunciation as part of the principle of ‘equal rights and self-determination of peoples’ in the UN Charter, the concept of equal rights of peoples finds its most explicit articulation in the African Charter, which provides that ‘[a]ll peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domina­ tion of a people by another’. Article 20 deals with the right to self-determination, but it distinguishes between the right to self-determination of colonized peoples and the right of ‘[a]ll peoples to existence’ and to ‘the unquestionable and inalienable right to self‑determination’ under which they ‘shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen’. According to the case law of the African Commission, the external self-determination described in the latter sentence, though generally available to all peoples, cannot be claimed by peoples forming part of the inhabitants of a sovereign State where they are treated in conditions of equality and non-discrimination with other component peoples of the State, and are allowed to participate in the choice of a representative government, however ethnically or racially distinct they may be (see the Katangese Peoples case below). Article 21 contains innovative provisions relating to permanent sover­ eignty over natural resources which, in the first instance, affirm the fiduci­ ary relationship between the State and its citizens in the management and utilization of natural resources, and secondly, provide that ‘in case of spo­ liation, the dispossessed people shall have the right to the lawful recovery of the property as well as to an adequate compensation’. It also makes it very clear that permanent sovereignty over natural resources and the right to dispose freely of such resources belongs to the people and not to the State or to its governmental authorities, and that it shall be exercised in the exclusive interest of the people. Under Article 22, the right of peoples to their economic, social and cul­ tural development is recognized, while the corresponding duty of States  See Western Sahara (n 10) 32, para 56 (citing Namibia Opinion (n 8) 31, para 53).

15

Peoples’ Rights and the AfCHPR 45 Parties to the Charter, individually or collectively, to ‘ensure the exercise of the right to development’ is established for the first time in a binding international instrument. Article 23 consecrates the right of peoples to national and international peace and security. Finally, Article 24, which rounds up the provisions of the Charter on peoples’ rights, provides that ‘all peoples shall have the right to a general satisfactory environment favourable to their development’. As will be shown below, the Commission has already had the opportunity to deal with the scope of application of this provision. Quantitatively, there is no doubt that the African Charter, which devotes the six Articles described above to peoples’ rights, goes much further than any other international instrument with regard to the number of peoples’ rights recognized and protected by it. Does this, however, amount to a qualitative leap in terms of the development of peoples’ rights at the inter­ national level or even in the African context? Based on the unique charac­ ter of the provisions of the Charter, some scholars have described it as a ‘revolutionary legal instrument’16 in terms of its protection of peoples’ rights; while for others, although the Charter ‘seemed to offer the greatest prospect of changing the international community’s attitude to and way of thinking about peoples’ rights’, it failed to live up to this promise with the relevant provisions coming to ‘little in practice’.17 The latter assess­ ment was made before most of the African Commission’s case law on peo­ ples’ rights came into being. It may indeed be argued that the proof of the pudding is in the eating, and that the practical effect of the Charter’s pro­ visions on peoples’ rights could not be usefully evaluated before their interpretation and application to real life cases by judicial or quasi-judicial bodies such as the Commission and the more recently created African Court. Now that some of those provisions have been tested before these bodies, the time may have come to take a fresh look at the six Articles of the Charter dealing with peoples’ rights and to see to what extent they have acquired practical relevance in the protection of human and peoples’ rights in the continent and contributed to the evolution of the scope of application of such rights. A key issue, in this context, is the definition of ‘peoples’, upon which the proper elucidation of the scope and content of peoples’ rights depends. This term was, however, purposefully left undefined by the drafters of the Charter. The question was whether the Commission, when called on to interpret and apply peoples’ rights under the Charter, would confine itself to a definition of a ‘people’ which coincides with the population of a sover­ eign State or of a colonized or occupied territory, or whether it would rec­ ognize a broader notion of peoples to include racially or ethnically distinct   Ouguergouz F (n 2) 372.   Alston P, ‘Peoples’ Rights: Their Rise and Fall’ in Alston P (ed), Peoples’ Rights (Oxford, 2001) 259 ff, 286. 16 17

46  Abdulqawi A Yusuf groups or communities within the State. In the first two or three decades following the independence of African States, fears were expressed in many quarters that the recognition as ‘peoples’ of the component groups or communities of multi-ethnic African States could lead to the fragmenta­ tion of such States and disrupt the consolidation of their statehood. As was stated in the Report of a ‘UNESCO International Meeting of Experts on further study of the concept of the rights of peoples’: [I]t is said that the definition of ‘peoples’ is uncertain and that the notion of peoples’ rights could lead to dangerous proliferation of claims, undermining settled borders, national sovereignty and international peace and security. In earlier times, and in some places today, individual human rights were equally criticized as dangerous and subversive to law and order. It is true that there is need for further efforts to define ‘peoples’ for the purposes of peoples’ rights.18

Although some of those fears still persist, it appears today that African States as well as the African Commission on Human and Peoples’ rights have come to recognize that ethnically and racially distinct groups and communities within the State may be considered as peoples entitled to exercise the rights enshrined in the African Charter without necessarily disrupting the unity and territorial integrity of the State. Moreover, the 1995 Constitution of Ethiopia, which opens with the words ‘we, the Nations, Nationalities and Peoples of Ethiopia’ is a poignant illustration of the willingness of some African States to use the recognition of peoples’ rights within the State borders as a keystone in the consolidation of statehood. Although the term ‘peoples’ was not defined in the Charter, the text of some of the provisions therein, such as Article 20, appeared to indicate that there were various conceptions of the word ‘peoples’ depending on the nature of the rights involved. As aptly described by Fatsah Ouguergouz, the notion of ‘peoples’ enshrined in the African Charter is a ‘chameleon-like term’19 that varies in accordance with the nature of the substantive right. The author identifies four different types of ‘entity’ that could come under the meaning of peoples in the Charter, ranging from the nationals of a State, the population or inhabitants of a State, peoples subject to colonial or racial domination and ethnic or other distinct communities.20 The African Commission initially skirted the issue of elucidating the meaning of the term ‘people’, but, as shown below, it has subsequently addressed, explored and developed the notion of ‘peoples’ protected by the Charter, while engaging with some of the challenges and fears described above. 18   United Nations Educational, Scientific and Cultural Organization (UNESCO), Final Report and Recommendations, International Meeting of Experts on further study of the con­ cept of the rights of peoples, SHS-89/CONF.602/7, 27–30 November 1989. 19   Ouguergouz F (n 2) 211. 20   Ibid.

Peoples’ Rights and the AfCHPR 47 IV.  DEMYSTIFYING ‘PEOPLE’: THE CASE LAW OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

A The Katangese Peoples’ Congress (1995) The first case in which peoples’ rights were raised in a communication submitted to the Commission was Katangese Peoples’ Congress v Zaire.21 The President of the Katangese Peoples’ Congress asked the Commission to recognize, among other things, the Katangese Peoples’ Congress as a liberation movement entitled to ‘support in the achievement of independ­ ence for Katanga’ from the Republic of Zaire (now the Democratic Republic of the Congo (DRC)), invoking the right to self-determination enshrined ­in Article 20 of the Charter. In its conclusions, the Commission noted, in the first instance, that there were ‘no allegations of specific breaches of other human rights apart from the claim of the denial of self-determination’ and then declared that ‘all peoples have a right to self‑determination’.22 However, the Commission observed that there may be ‘controversy as to the definition of peoples and the content of the right’.23 Self-determination could be exercised in different ways, from inde­ pendence to local government and federalism, but it had to be exercised in a manner that was ‘fully cognizant’ of the ‘sovereignty and territorial integrity of Zaire’.24 The Commission then gave its opinion on the matter as follows: In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to partici­ pate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of selfdetermination that is compatible with the sovereignty and territorial integrity of Zaire.25

In other words, the Commission held that the Katangese people should exercise their right to self‑determination internally unless it could be clearly demonstrated that their human rights were egregiously violated by the Government of Zaire (now DRC) and that they were denied the right to participate in government.26 The African Commission has relied in several   Katangese Peoples’ Congress v Zaire (2000) AHRLR 72.   Ibid, para 2. 23   Ibid, para 3. 24   Ibid, para 4. 25   Ibid, para 6. 26   The Canadian Supreme Court came to a similar conclusion in the case on the Secession of Quebec, see Reference by the Governor-General concerning Certain Questions relating to the Secession of Quebec from Canada ([1998] 2 SCR 217; 161 DLR (4th) 385; 115 Int Law Reps 536). 21 22

48  Abdulqawi A Yusuf instances, including the above case, on Article 13(1) of the African Charter on Human and Peoples’ Rights27 as a fundamental criterion in deciding whether a people is so oppressed or discriminated against, or otherwise excluded from participation in government within its own State, that it becomes entitled to the right of external self‑determination and separation from that State. It appears that the denial of the right of a people to partici­ pate in its own government and the consequent non-existence of a govern­ ment which represents its entire population would constitute, in the view of the Commission, a crucial element of the exceptional circumstances that may justify resort to external self‑determination within an existing State. The importance of the Commission’s findings in this case relates to the recognition by the Commission of the right of a people to exercise internal self-determination, which it characterized as ‘a variant of selfdetermination’; in other words, the Commission recognised it as one of the normative strands of the principle of equal rights and self-­ determination of peoples which prescribes the right of peoples within a State to freely elect a government of their own choice and to participate in such a government. B.  The Ogoni People (SERAC and CESR v Nigeria) (2001) In a communication submitted to the Commission on 14 March 1996,28 two Nigerian non-governmental organizations (NGOs) – the Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) – alleged that the military Government of Nigeria had been involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the major­ ity shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations had caused environmental contamination and health problems among the Ogoni people of the Niger Delta. Moreover, the communication alleged that the Nigerian security forces had attacked, burned and destroyed several Ogoni villages and homes following the non-violent campaign of local groups against the destruction of their environment by oil companies. With regard to the African Charter, the Communication specifically alleged the violation of a   Article 13 reads:

27

1. Every citizen shall have the right to participate freely in the government of his coun­ try, either directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

28   Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria (2001) AHRLR 60.

Peoples’ Rights and the AfCHPR 49 number of rights, including the right of a people to a clean environment and to dispose freely of their own resources. The Commission began its analysis by recalling that ‘both civil and political, and social and economic rights generate at least four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote and fulfill these rights’.29 It then noted that the Government of Nigeria did not contest the allegations made by the complainants, but the Government described in a Note Verbale addressed to the Commission the remedial measures taken by the new civilian administration, including the establishment of a judicial commis­ sion of enquiry and a Niger Delta Development Commission which would address the environmental and social related problems of the Niger Delta area. The Commission then addressed together the alleged violations of a peo­ ples’ right to a general satisfactory environment (Article 24) and the right to health (Article 16). For the Commission, these rights imposed a clear obliga­ tion on States to take measures ‘to prevent pollution and ecological degra­ dation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.30 In addition, ‘compliance with the spirit of Articles 16 and 24 of the African Charter must also include’ environmental and social impact studies, appropriate monitoring and the provision of information to local communities about developments, as well as meaningful opportunities for ‘individuals to be heard and to participate in the development decisions affecting their communities’.31 Applying these rules to the case at hand, the Commission recognized that Nigeria did have the right to produce oil, ‘the income from which will be used to fulfill the economic and social rights of Nigerians’.32 However, the Government had not only failed to uphold the ‘care that should have been taken’ to protect the Ogoni people, for example by conducting the relevant studies and undertaking appropriate monitoring of the impact of the oil production activities, but it also directly contributed to their plight and to the environmental degradation by ordering its security forces to engage ‘in conduct in violation of the rights of the Ogonis by attacking, burning and destroying several Ogoni villages and homes’.33 In its analysis of Article 21 of the Charter, which provides for the right of peoples to freely dispose of their wealth and natural resources, the Commission singled out paragraph 5 therein under which States Parties must undertake to ‘eliminate all forms of foreign economic exploitation’ to enable their peoples to fully benefit from the advantages derived from   Ibid, para 44.   Ibid, para 52. 31   Ibid, para 53. 32   Ibid, para 54. 33   Ibid. 29 30

50  Abdulqawi A Yusuf their national resources.34 According to the Commission, ‘the origin of this provision may be traced to colonialism, during which the human and material resources of Africa were largely exploited for the benefit of out­ side powers, creating tragedy for the Africans themselves’.35 The African governments had, therefore, a duty to protect their citizens from ‘damag­ ing acts that may be perpetrated by private parties’.36 This duty called for positive action by governments in fulfilling their obligation under human rights instruments. The Commission thus concluded that: ‘contrary to its Charter obligations . . ., the Nigerian Government has given the green light to private actors, and the oil companies in particular, to devastat­ ingly affect the well-being of the Ogonis’. Consequently, it was the view of the Commission that the practice of the Nigerian Government fell short of the minimum conduct expected of States Parties to the Charter, and was in violation of Article 21 thereof. In this case, as in the Katanga case, the Commission did not explicitly define the Ogonis as a people, nor did it provide a definition of ‘people’ in the African Charter; but it applied the provisions on peoples’ rights, par­ ticularly Articles 21 and 24, to the Ogonis, thus recognizing that, as a dis­ tinct community in Nigeria, the Ogonis are entitled to protection under the provisions on peoples’ rights of the African Charter. Another outstanding feature of this case is that the Commission clearly affirms the justiciability of peoples’ rights and socio-economic rights in the Charter. In the words of the Commission: The uniqueness of the African situation and the special qualities of the African Charter imposes upon the African Commission an important task. International law and human rights must be responsive to the African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective.37

A further significant feature of the Commission’s conclusions in this case is that the Commission spells out the normative content and implications of the right to a satisfactory environment, focusing in particular on the procedural aspects of the right and emphasizing the right to information, consultation and participation in decisions affecting community rights. It also highlights the importance of establishing appropriate environmental impact assessments with independent oversight bodies and of monitor­ ing industrial activities likely to have an impact on the environment.   Article 21(5), African Charter.   SERAC and CESR v Nigeria (n 28), para 56. 36   Ibid, para 57. 37   Ibid, para 68. 34 35

Peoples’ Rights and the AfCHPR 51 C.  Southern Cameroon (Kevin Mgwanga Gunme et al v Cameroon) (2009) It was in the Southern Cameroon case that the Commission finally decided to clarify its understanding of the notion of ‘people’ as used in the African Charter, and declared that the people of Southern Cameroon ‘qualify to be referred to as a “people” because they manifest numerous characteristics and affinities, which include a common history, linguistic tradition, terri­ torial connection and political outlook’.38 Even more importantly for the Commission, the people of Southern Cameroon qualified as a people because ‘they identify themselves as a people with a separate and distinct identity’, such identity being ‘an innate characteristic within a people’.39 This communication was submitted to the Commission by 14 individuals from Southern Cameroon on their own behalf and on behalf of the people of Southern Cameroon, alleging that the former UN trust territory adminis­ tered by Britain until 1961 was ‘forcefully annexed’ into the Republic of Cameroon following the 1961 plebiscite and subsequently marginalized and denied equal opportunities and democratic representation by the Republic of Cameroon which had a majority Francophone population. They claimed that the people of Southern Cameroon constitute a ‘separate and distinct people’, characterized by the English language and different ‘legal, educational and cultural traditions’ as a result of British and AngloSaxon influence in the region. Finally, the complainants alleged, in addition to the violation of the rights of individual Southern Cameroonians, the violation by the Government of the Republic of Cameroon of Articles 19, 20, 21, 22, 23(1) and 24 in respect of the peoples of Southern Cameroon. The Commission acknowledged that it ‘initially shied away from inter­ preting the concept of peoples’,40 mindful of the fact that the drafters deliberately refrained from defining it and that there was little concrete international jurisprudence on the issue. It stated that ‘to date, the concept has not been defined under international law’ and acknowledged the ‘controversial nature of the issue and the political connotation that it car­ ries’.41 It also recognized that ‘certain objective features attributable to a collective of individuals, may warrant them to be considered as “people”’42 and referred to the Report of the UNESCO Expert Meeting, which listed a number of objective common characteristics manifested by a people as well as the subjective aspect of self-identity – the common consciousness of being a people. The Commission then declared that: 38   Communication 266/03 Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009, available at . 39   Ibid, para 179. 40   Citing the Report of the African Commission’s Working Group on Experts on Indigenous Populations/Communities, 2005. 41   Kevin Mgwanga Gunme et al v Cameroon (n 38) para 169. 42   Ibid, para 170.

52  Abdulqawi A Yusuf In the context of the African Charter, the notion of ‘people’ is closely related to collective rights. Collective rights enumerated under Articles 19-24 of the Charter can be exercised by a people, bound together by their historical, tradi­ tional, racial, ethnic, cultural, linguistic, religious, ideological, geographical, economic identities and affinities, or other bonds.43

With regard to the people of Southern Cameroon, the Commission expressed the view that, by virtue of their distinct identity, they could avail themselves of peoples’ rights under the Charter. Their distinct iden­ tity manifested itself in numerous characteristics and affinities, including a ‘common history, linguistic tradition, territorial connection and political outlook’.44 Responding to Cameroon’s arguments that the complainants advanced ‘no ethno-anthropological’ evidence that they constituted a separate people, the Commission held that ethno-anthropological attrib­ utes are not the only determining factor. The notion of ‘peoples’ protected in the Charter is much broader than that, guaranteeing ‘equal protection to people on the continent, including other racial groups whose ethno‑anthropological roots are not African’.45 Turning to the substantive violations, the Commission, first, addressed the temporal limitations of its jurisdiction. It sidestepped the issue of the 1961 plebiscite on the grounds that it was not competent to consider it, since it was conducted 20 years before the entry into force of the Charter.46 However, the Commission found that it had jurisdiction over events pre­ dating the entry into force of the Charter where those acts continued to have effect after 1989. This was the case for the alleged inequality of peo­ ples and economic marginalization. In addition, it had jurisdiction to con­ sider the adoption of the 1995 Constitution of Cameroon and whether the refusal to accommodate the Southern Cameroonians’ appeals for auton­ omy at that time amounted to a denial of the right of self‑determination. The Commission held that the relocation of major economic projects from Southern Cameroon to Francophone Cameroon ‘generated negative effects on the economic life of Southern Cameroon’47 and therefore vio­ lated the equal rights of peoples, protected by Article 19. The key issue was, however, whether the refusal to recognize the claims of Southern Cameroon as an entity entitled to autonomy in the new Constitution amounted to a violation of the right to self-determination. Here, the Commission recalled that in light of the principle of territorial integrity ‘which the Commission is obliged to uphold’,48 it could not ‘envis­ age, condone or encourage secession’ as a form of self-determination and   Ibid, para 171.   Ibid, para 179.   Ibid, para 178. 46   Ibid, para 155. 47   Ibid, para 162. 48   Ibid, para 189. 43 44 45

Peoples’ Rights and the AfCHPR 53 held that secession is not a variant of the right to self-determination within the context of the African Charter.49 It opined that ‘secession is not the sole avenue open to Southern Cameroonians’.50 There were other internal avenues to exercise self-determination within a State, ranging from self‑­ government to confederacy. In order to determine whether there was a violation of self-determina­ tion, the Commission applied the test in the Katanga case, which requires a showing of evidence of ‘massive’ violations of human rights coupled with the denial of the right to participate in government to a people,51 or as the Commission also referred to it, a two part test demonstrating ‘oppression and domination’.52 Although the Commission found a number of human rights violations, it declared that it was satisfied that the people of Southern Cameroon had the opportunity to participate in government and were sufficiently represented in the National Assembly, in accordance with Article 13 of the Charter. Therefore, there was no denial of self‑determination. Comprehensive national dialogue, rather than secession, was the solution to the grievances of the people of Southern Cameroon.53 The importance of the Southern Cameroon case lies in the Commission’s decision to define the notion of ‘people’ in the African Charter after a long period of hesitation and reluctance to rush in where the drafters of the Charter feared to tread. In doing so, the Commission adopted a broad notion of ‘people’, which is not limited to the population of a State, but which extends to ethnically or racially distinct groups within the State or groups bound together by historic, traditional, cultural, linguistic and geographical affinities. The decision is also noteworthy for its suggestion that, where there is an allegation of domination or oppression of one people by another, the Charter imposes a positive duty on the State to address such issues and not to ignore them ‘under the guise of sovereignty and territorial integrity’.54 The work of the African Commission itself exemplified the need for institutions which can address grievances and resolve disputes in a peaceful manner. The utilization of such mechanism in good faith ‘can spare the continent valuable human and material resources, other­ wise lost due to conflicts fighting against ethnic, religious domination or economic marginalization’.55

  Ibid, para 190.   Ibid, para 191. 51   Ibid, para 194. 52   Ibid, para 197. 53   Ibid, para 203. 54   Ibid, para 181. 55   Ibid, para 181. 49 50

54  Abdulqawi A Yusuf D.  Darfur (COHRE v Sudan) (2009) The Commission had to deal again with the notion of ‘people’ under the Charter in a communication concerning Sudan,56 submitted by a number of NGOs, including the Sudan Human Rights Organization (SHRO) and the Centre on Housing Rights and Evictions (COHRE), on behalf of indig­ enous tribes in the Darfur region, who had allegedly suffered ‘massive and systematic violations’ of human rights at the hands of the Murhaleen and Janjaweed militias, which, it was claimed, operated with the backing of the Sudanese Government.57 The complaint also included allegations of ‘large-scale killings, the forced displacement of populations, the destruc­ tion of public facilities, properties and disruption of life through bombing by military fighter jets in densely populated areas’.58 The complainants further alleged the violation of the right to life and a number of socio-economic and peoples’ rights, including the right to eco­ nomic, social and cultural development under Article 22 of the Charter. The main question was whether the alleged victims – specifically the three major tribes of the Darfur region described as being ‘people of black African origin’59 – could collectively constitute a people for the purpose of the Charter. The Commission noted that the content of ‘peoples’ rights’ remained ambiguous and ‘very fluid’. However, it embarked once more on the difficult task of defining the notion of ‘people’, because, in its own words, ‘it believes that in defining the content of peoples’ right’, or pro­ viding the definition of ‘people’, it would make ‘an important contribu­ tion to Africa’s acceptance of diversity’,60 a diversity which should be a cause for celebration in the continent. The Commission then made the following avant-garde statement: There is a school of thought . . . which believes that the ‘right of a people’ in Africa can be asserted only vis-à-vis external aggression, oppression or coloni­ zation. The Commission holds a different view, that the African Charter was enacted by African States to protect human and peoples’ rights of the African peoples against both external and internal abuse.61

This is a very powerful statement which marks the end of a post-colonial period in which oppression and domination in Africa were generally ascribed to, and sometimes exclusively associated with, foreign aggres­ sion, Apartheid and colonialism, while the acts of home-grown dictatorial 56   Communication 279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, 27 May 2009, available at . 57   Ibid, paras 110, 114. 58   Ibid, para 3. 59   Ibid, para 219. 60   Ibid, para 220. 61   Ibid, para 222.

Peoples’ Rights and the AfCHPR 55 and oppressive regimes were overlooked by African intergovernmental organizations. The Commission appears to have decided to call upon African governments to practice what they preach in the context of the African Charter and other human rights instruments enacted at their own initiative. With regard to the victims of the alleged violations in Darfur, the Commission found that ‘the people of Darfur in their collective are a “peo­ ple” as described under Article 19’ of the Charter, and that they ‘do not deserve to be dominated by people of another race in the same State.’62 Addressing the alleged violation of the right of the people of Darfur to their economic, social and cultural development, the Commission declared that, in so far as the attacks by government forces and by the Janjaweed militia amounted to massive human rights violations and the consequent displacement denied the people of Darfur the opportunity to engage in economic and social activities and denied their children the right to education, the right to development of the people of Darfur was violated. E.  The Endorois (Centre for Minority Rights Development v Kenya) (2009) The Endorois are a pastoral, indigenous community from the Lake Bogoria area of Kenya where they have lived for centuries. The communi­ cation was submitted by the Centre for Minority Rights Development (CEMIRIDE) with the assistance of Minority Rights Group International (MRG) and COHRE on behalf of the Endorois community.63 The com­ plainants alleged that the Government of Kenya had forcibly removed the Endorois from their ancestral lands around the Lake Bogoria area without proper prior consultations, or adequate and effective compensation, in violation of the African Charter. They were allegedly relocated to an area unsuitable for their traditional way of life and were denied regular access to the Lake, which is integral to their spiritual beliefs and practices. Promises to compensate and resettle the families were never fulfilled.64 Given the Endorois’ spiritual, cultural and economic ties to the land, the complainants alleged that their eviction from the land amounted to a violation of their right to property, to religion, to participate in the cultural life of the community, as well as the right to development and to freely dispose of their wealth and natural resources.   Ibid, para 223.   Communication 276/03 Centre for Minority Rights Development (CEMIRIDE) (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, 29 November 2009, avail­ able at . 64   Ibid, paras 8–11. 62 63

56  Abdulqawi A Yusuf The Government of Kenya disputed the characterization of the Endorois as a distinct community and requested the African Commission to deter­ mine whether the Endorois could be recognized as a community on their own. The Commission was also asked whether an indigenous community could claim special protection under the peoples’ rights provisions of the Charter. The Commission recognized that ‘indigenous peoples’ was a par­ ticularly contested concept ‘since no single accepted definition captures the diversity of indigenous cultures, histories and current circumstanc­ es’.65 It then referred to the four criteria identified by its Working Group on Indigenous Populations/Communities, namely the occupation and use of a specific territory; the voluntary perpetuation of cultural distinc­ tiveness; self-identification as a distinct collectivity as well as recognition by other groups, and an experience of subjugation, marginalization, dis­ possession, exclusion or discrimination.66 It further noted that indigenous peoples have an unambiguous rela­ tionship to a distinct territory, a link between the people, their culture and their land.67 Indeed, the key characteristic of many African indigenous groups was the relationship between their way of life and the land. Also, for the Commission, at ‘the heart of indigenous rights’ under the Charter was the right to preserve one’s identity through identification with ances­ tral lands.68 Having analyzed the submissions of the complainants and the respond­ ent State, the Commission expressed its views as follows: the Endorois culture, religion, and traditional way of life are intimately inter­ twined with their ancestral lands – Lake Bogoria and the surrounding area. It agrees that Lake Bogoria and the Monchongoi Forest are central to the Endorois’ way of life and without access to their ancestral land, the Endorois are unable to fully exercise their cultural and religious rights, and feel disconnected from their land and ancestors.69

Self-identification is also considered by the Commission as ‘another import­ ant criterion for determining indigenous peoples’.70 The Commission concluded that since the Endorois identify themselves as a distinct people and share a common history, culture and religion which was in turn attached to their traditional land in the region around Lake Bogoria, they were a ‘people’ who can avail themselves of the collective rights under the Charter. In addition to the recognition of the Endorois as an indigenous people, the Commission made a number of significant statements with respect to   Ibid, para 147.  Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, Twenty Eighth Session, 2003. 67   CEMIRIDE v Kenya (n 63) para 154. 68   Ibid, para 162. 69   Ibid, para 156. 70   Ibid, para 157. 65 66

Peoples’ Rights and the AfCHPR 57 the substantive violations alleged by the complainants, particularly under Articles 21 and 22 of the Charter, as well as the content of peoples’ rights. First, the Commission recognized a type of ‘collective’ ownership rights – a ‘communal property system’71 – in so far as a community’s rights and interests in traditional lands can constitute property under the Charter. The Endorois had lived in the area for centuries, and on the basis of this evidence, the ‘only conclusion that could be reached is that the Endorois community has a right to property with regard to its ancestral land, the possessions attached to it, and their animals’.72 Secondly, the Commission held that where indigenous peoples tradi­ tionally possessed land, they have the equivalent of full property title to the land and are entitled to recognition of that title. Moreover, they are entitled to restitution of those lands if they unwillingly lost possession of them – dispossession cannot extinguish their title.73 While there may be legitimate and proportionate limitation of a Charter right on the basis of ‘public need’, the test is necessarily ‘much more stringent when applied to the ancestral land rights of indigenous peoples’74 and the Government must demonstrate that it consulted and sought consent of the indigenous people. Thirdly, the Commission recognized that the right to participate in cul­ tural life had both an individual aspect and a collective one, namely the obligation of the State to promote and protect the cultural life of a com­ munity. ‘Culture’ includes the particular way of life and connection to the land of indigenous and pastoralist societies. By denying them access to the lands, and thus the resources necessary to maintain their livestock, Kenya created a major threat to the Endorois people’s pastoralist way of life and denied them the very essence of their right to culture.75 Turning to the right of the Endorois to dispose of their natural resources, the Commission reiterated the principle in the Ogoni case that the right to natural resources contained within traditional lands is also vested in indigenous peoples. Kenya, conscious of protecting ruby mining conces­ sions granted in the region, tried to argue that the Endorois only had a right to resources necessary for their survival. The Commission rejected this argument and found that the State must ‘consult with [the people], in conformity with their traditions and customs, regarding proposed mining concessions’ and must ‘allow the members of the community to reason­ ably participate in the benefits’.76   Ibid, para 196.   Ibid, para 184.   Ibid, para 209. 74   Ibid, para 212. 75   Ibid, para 251. 76   Ibid, para 266. 71 72 73

58  Abdulqawi A Yusuf Finally, the Commission, in its analysis of the right to development, stated that the right to development consisted of two inter-related aspects, which were of procedural and substantive nature. In determining whether those aspects have been respected, the Commission took note of a number of principles which must inform the implementation of the right to devel­ opment, including equity, non-discrimination, participation, accountabil­ ity and transparency, and the freedom of choice.77 In the view of the Commission, the substantive aspect of the right to development concerns the freedom of choice of the community as well as a right of the community to share in the benefits of projects or develop­ ments on ancestral lands. The procedural aspect, on the other hand, relates to the State’s obligation to ensure participation and consultation with the community. The Commission takes these requirements even further by holding that where the development or investment project would have a major impact on the community, ‘the State has a duty not only to consult with the community but also to obtain their free, prior and informed con­ sent, according to their customs and traditions’.78 V.  THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS: AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS v GREAT SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA

On 25 March 2011, the African Court on Human and Peoples’ Rights made its first ever order for provisional measures in the case of African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya.79 It was only the second decision issued by the Court and it was the first time the Court was seized by an application deposited by the African Commission on the basis of an NGO communication. Importantly, it was also the first time that peoples’ rights were raised before the Court. In February 2011, the African Commission received numerous com­ plaints from NGOs concerning the deteriorating situation in Libya. Three NGOs entered a complaint specifically requesting the Commission to refer the case to the Court. The Commission concluded that the actions of the Libyan security forces against the population amounted to ‘serious and widespread’ violations of the Charter rights to life, integrity of per­ sons, freedom of demonstration and assembly, as well as the peoples’ right to peace and security under Article 23.   Ibid, para 277.   Ibid, para 291.   Application No 004/2011, African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya, Provisional Measures, Order of 25 March 2011, available at www.african-court.org/en/index.php/2012-03-04-06-06-00/all-cases-and-decisions/2home/203-decisions-orders-epp-no_004-2011. 77 78 79

Peoples’ Rights and the AfCHPR 59 On 3 March 2011, the Commission duly instituted proceedings against Libya before the African Court on Human and Peoples’ Rights,80 expressly referring to the serious human rights violations committed by the security forces. The Court began by reiterating the Commission’s conclusion that the actions of the Libyan security forces amounted to ‘serious and widespread violations of the rights enshrined in Articles 1, 2, 4, 5, 9, 11, 12, 13 and 23 of the Charter’.81 The Court unanimously decided to issue provisional measures. While the Commission did not expressly request provisional measures, the Court referred to Article 27(2) of the Protocol and Rule 51 of the Court’s Rules of Procedure which provide that the Court may issue provisional measures of its own motion in ‘cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons’ and ‘which it deems necessary to adopt in the interest of justice’. The Court was satisfied that it had prima facie jurisdiction in this matter, since Libya had ratified the Charter and Protocol. Then, relying on the statements and resolutions of international and regional organizations, including statements of the Peace and Security Council of the African Union and the Secretary General of the Arab League, as well as UN Security Council Resolution 1970 (2011), the Court concluded that the sit­ uation prevailing in Libya was one of extreme gravity and urgency such as to warrant ordering, proprio motu, provisional measures.82 It also reiter­ ated the Commission’s finding that Libya had violated a number of human rights, including the peoples’ right to peace and security enshrined in Article 23 of the Charter. The Court therefore unanimously ordered Libya to immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the Charter or of any other international human rights instrument to which it is party.83

In addition, it ordered Libya to report to the Court within a period of 15 days from the receipt of the order. VI. CONCLUSION

As pointed out by the African Commission itself in the Endorois case, it could be argued that ‘the African Charter is an innovative and unique 80   Article 5 of the Protocol to the African Charter lists the Commission as one of the Parties entitled to submit a case to the Court. 81   African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya (n 79) para 2. 82   Ibid, para 23. 83   Ibid, para 25.

60  Abdulqawi A Yusuf human rights document compared to other regional human rights instru­ ments, in placing special emphasis on the rights of peoples’.84 Indeed, no other international instrument provides for, and protects, peoples’ rights as extensively as the African Charter. It might therefore be affirmed that the fundamental difference between the African Charter and other human rights instruments is to be found in its coverage of peoples’ rights. Through this unique and extensive coverage, the Charter has undoubt­ edly contributed to the recognition and progressive development of peo­ ples’ rights at the international level. It is understandable that a certain measure of doubt may have existed until recently as to the practical effect of the Charter’s provisions on peo­ ples’ rights, since the extensive provisions of the Charter still had to be interpreted or applied in the domestic legal orders of African States, or in the case law of the judicial or quasi-judicial organs of the African Union. Moreover, as recognized by the African Commission itself, for more than two decades the Commission shied away from interpreting the notion of ‘people’ in the Charter, not feeling ‘at ease in developing rights where there was little concrete international jurisprudence’.85 Through its most recent case law, which has been examined above, and in particular through the Southern Cameroon, the Darfur and the Endorois cases, the Commission has overcome its initial reticence to define the attributes of a people and has provided its own clarification and interpre­ tation not only of the notion of ‘people’, but also of the normative content of peoples’ rights in the Charter. One may not necessarily agree with this interpretation, particularly as applied to the Southern Cameroon or the Endorois cases. However, it cannot be denied that the Commission has at least tried to transform the quantitatively important coverage of peoples’ rights in the African Charter into a qualitative development of the recog­ nition and protection of such rights at the international level, thus contrib­ uting to the progressive development of peoples’ rights in international law as well as in the public law of Africa.

  CEMIRIDE v Kenya (n 63) para 149.  See Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, Twenty-Eighth Session, 2003. 84 85

3 From Jus in Bello to Jus Commune Humanitatis. The Interface of Human Rights Law and International Humanitarian Law in the Regulation of Armed Conflicts FEDERICO LENZERINI*

I

I. INTRODUCTION

N THE COURSE of human history, armed conflicts have commonly been considered a context in which the operation of legal rules is in principle suspended. The old axiom ‘all’s fair in love and war’, meaning that in these fields one is allowed to act fraudulently and with no respect for the established rules in order to achieve the goals pursued, reflects a conviction traditionally entrenched in human behaviour, especially with respect to armed conflicts. Nevertheless, historical evidence shows that this vision is misleading, at least partially. Since the rise of human history, humanitarian norms have emerged aimed at protecting the fate of certain categories of victims of armed conflicts, including wounded, sick and shipwrecked persons.1 Accounts exist testifying to the existence of humanitarian rules within the main ancient civilizations. For instance, in the Book of Kings of the Old Testament, the King of Israel orders not to kill Syrian prisoners who had moved war against Israel, but to feed and refresh them with water as well *  The author gratefully acknowledges Dr Rebecca Mori, JD University of Siena, LLM University of Toronto, for her valuable help in the research of the doctrinal and jurisprudential sources used in the present chapter. The author also wishes to thank Professor Francesco Francioni for his comments on an earlier draft of this chapter. 1  See Partsch KJ, ‘Humanitarian Law and Armed Conflict’ in Bernhardt R (ed), Encyclopedia of Public International Law, Volume 2 (Amsterdam, 1992) 933 ff, 934.

62  Federico Lenzerini as to allow them to return to their master.2 Significant restrictions to warfare and its conduct have existed in Confucian Chinese ethical theory since the fourth century BC.3 In both ancient Greece and Rome a quite advanced law of armed conflict existed and was applied in warfare; the expressions jus ad bellum (law governing recourse to armed force) and jus in bello (law regulating warfare), which continue to be used today, were actually forged by Roman law.4 Likewise, according to Islamic law people who did not participate in the fighting – including women, children, monks, the sick and the elderly – were not to be harmed, at least when they agreed to convert to Islam or to pay a tax for their life5; prisoners of war should also not be killed for the only reason of participating in the conflict as enemies.6 Similar rules also existed in ancient India, as testified by the Manu Smŗiti; these rules included the duty of combatants not to use weapons which are concealed, ‘barbed, poisoned or the points of which are blazing with fire’ as well as that of not striking those who, inter alia, join the palms of their hands in supplication, are asleep, have lost their coat of mail, are naked, disarmed, or do not take part in the fighting.7 In modern times the said humanitarian rules have evolved toward the establishment of a comprehensive body of international legal rules shaping the corpus of jus in bello, or international humanitarian law (IHL). IHL is traditionally conceived as a sort of ‘abridged’ version of international human rights law (HRL), based on the conviction that the level of protection granted to the human being in armed conflicts may not be as high as in peacetime, in light of the inherent drop of the rule of law intrinsic to belligerent activities. In most recent years, however, this view is being strongly challenged, in parallel with the progressive affirmation in international jurisprudence of the idea that HRL is fully applicable even in wartime. The purpose of this chapter is to analyze the interface between HRL and IHL in the context of armed conflict – particularly through an assessment of the relevant case-law – in order to ascertain the current status and future perspectives of the never-ending struggle of the international legal movement aimed at humanizing the conduct of war.

  2 Kings 6:21–23.  See McCoubrey H, International Humanitarian Law. Modern Developments in the Limitation of Warfare (Dartmouth, 1998) 10. 4  See Bassiouni MC, ‘Humanitarian Law’, eNotes, 2005, available at (last visited on 30 May 2013). 5  See Khadduri M, War and Peace in the Law of Islam (Clark, New Jersey, 2006) 103 ff. 6  See McCoubrey H (n 3) 13. 7  See Manu Smŗiti (Hindu Law Book), English version extracted by Hariharan MG, available at (last visited on 30 May 2013), 7.90 ff. 2 3

From Jus in Bello to Jus Commune Humanitatis 63  II.  HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW: SEPARATE SPHERES OR CONCENTRIC CIRCLES?

While it is commonly held that HRL and IHL represent two distinct legal regimes,8 their strict interrelation is evident not only in light of their common philosophical roots – ie the protection of the paramount common good, that is human dignity – but also due to the formulation of some key provisions included in the first historical instruments aimed at regulating IHL. For example, the well-known Martens clause, included in the Preamble to the 1899 Hague Convention II concerning the laws and customs of war on land, proclaimed the principle according to which, [u]ntil a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.9

The reference in this clause to the ‘laws of humanity’ and to ‘the requirements of the public conscience’ is prophetic, formulating at once the very inspiration and basis of the international human rights movement that would later spread as a reaction to the tragic catastrophe of World War II. Indeed, the concern that in barely five decades would lead to the solemn adoption of the Universal Declaration of Human Rights by the UN General Assembly was already burning in the conscience of the international community, although it needed the cataclysm of the Second World War in order to overcome the striking obstacle represented by the firm devotion of States to the principle of territorial sovereignty. In the legal background characterizing international law at the end of the nineteenth century, it was far more acceptable for States to convene for the establishment of a set of rules aimed at regulating the conduct of war. Their scope of application was in fact limited to the very specific context of (international) armed conflicts, and their influence on State sovereignty was much more restrained than human rights law would have been, being human rights inherently designed to operate within the State borders in everyday life. In any event, the birth of IHL allowed the idea of human dignity to emerge from the quicksand of the absolutely-conceived notion of territorial sovereignty, 8  See Tomuschat C, ‘Human Rights and International Humanitarian Law’ (2010) European Journal of International Law 15 ff. 9   The text of the 1899 and 1907 Hague Conventions on the Laws and Customs of War is available at (last visited on 30 May 2013). On the significance of the Martens clause in the context of the relationship between HRL and IHL, see Scobbie I, ‘Principle or Pragmatics? The Relationship between Human Rights Law and the Law of Armed Conflict’ (2009) Journal of Conflict & Security Law 449 ff.

64  Federico Lenzerini which previously suffocated all philosophical impulses toward the ‘humanization’ of international law. However, it would then take a long time before this philosophical seed yielded positive international law in the field of human rights. At the same time, existing rules of IHL showed that they were constrained by too many inherent limits (eg the si omnes clause conditioning the operation of the 1899 and 1907 Hague Conventions, according to which a convention could be applied to an armed conflict only if all countries involved in such a conflict were Parties to it) to enable them to prevent the occurrence of the most dreadful abuses of human dignity during armed conflicts. Therefore, the development of the two fields of international law in point continued in parallel, with the purpose of creating rules capable of achieving the purposes for which each of them was conceived. However, while HRL developed quite plainly – being unconstrained by any inherent restrictions which could restrain its scope – the situation was quite different with respect to IHL, as by its very nature it was destined to extend its scope of application only to the ‘peripheral portion’ of the subject-matter it was aimed to regulate. In fact, the inherent boundaries of IHL rest in the circumstance that its purpose is only limited to controlling ‘adverse effects’ of armed conflicts, ie to prevent those forms of fighting prejudicial to certain protected values (basically human dignity), which are useless and unjustifiable in light of the purposes ordinarily achieved in time of war. That aside – and apart from a limited cluster of specific horrible crimes – IHL cannot intrinsically extend to cover all those situations in which the most important prerogatives attached to human dignity (particularly the right to life) are sacrificed in order to pursue the ordinary goals of belligerent parties. However, once human dignity emerged as the paramount common good of the international community, this lack of protection could no longer be accepted. In particular – although, as stated by most international human rights instruments, most rules of HRL can be suspended in situations of emergency, which undoubtedly include armed conflicts – it was hardly acceptable that in armed conflicts the protection available for certain fundamental rights of the human being was restrained within the narrow limits of IHL. Hence, in its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,10 the International Court of Justice (ICJ) constructed its theory of IHL as lex specialis. However, the Court formulated this principle in a quite ‘contradictory fashion’11; in fact, while asserting that ‘the right not arbitrarily to be deprived of one’s life [contemplated by Art 6 of the International Covenant on Civil and Political Rights 10  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226. 11  See Tomuschat C (n 8) 17.

From Jus in Bello to Jus Commune Humanitatis 65  (ICCPR)] applies also in hostilities’, as it is not included among the provisions that ‘may be derogated from in a time of national emergency’ (by virtue of Art 4 ICCPR), the Court held that [t]he test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life [. . .] can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.12

As authoritatively noted by Professor Tomuschat, this statement – due to its ambiguity – was open to different interpretations. On the one hand, the use of the term ‘can only be decided’ could mean that in time of war the only protection offered for the right to life (and, a fortiori, for human rights in general) is that available under IHL; on the other hand, the reference to the fact that Article 6 ICCPR ‘applies also in hostilities’ seems to suggest that in the event of armed conflict the application of HRL is to be evaluated ‘in conjunction’ with the applicable rules of IHL.13 The ICJ refined its position in 2004, showing that, among the two possible interpretations just mentioned, the latter is to be preferred. In the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,14 the Court confirmed that ‘the protection offered by human rights conventions does not cease in case of armed conflict’, except with respect to those human rights that can be derogated from in times of emergency. Then, in defining the relationship between IHL and HRL, the Court offered three possible solutions, although it did not provide the criteria for ascertaining which of them is to be applied in the different circumstances: ‘some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’.15 In any event, both HRL and, as lex specialis, IHL must be taken into consideration. This statement was reiterated by the ICJ in its 2005 judgment concerning the armed activities of Uganda in the territory of the Congo,16 through reaffirming ‘that both branches of international law [. . .] have to be taken into consideration’ in the course of an armed conflict,17 as well as that ‘international human rights instruments are applicable “in respect of acts done  ICJ, Legality of the Threat or Use of Nuclear Weapons (n 10), para 25.  See Tomuschat C (n 8) 17–18. 14  ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136. 15   Ibid, 178, para 106. 16  ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, ICJ Reports 2005, 168, para 216. 17   Ibid. See also para 178 ff. 12 13

66  Federico Lenzerini by a State in the exercise of its jurisdiction outside its own territory”, particularly in occupied territories’.18 The Court also listed the ‘instruments in the fields of international humanitarian law and international human rights’ applicable to the case, which include the ICCPR, the African Charter on Human and Peoples’ Rights (1981),19 the Convention on the Rights of the Child (1989)20 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000).21 22 Subsequently, in 2008, in the context of the dispute between Georgia and the Russian Federation concerning the application of the Convention on the Elimination of All Forms of Racial Discrimination, the ICJ affirmed that this Convention always applies in the event of armed conflict ‘even if certain of these alleged acts might also be covered by other rules of inter­ national law, including humanitarian law’.23 With respect to the latter statement, one has certainly to be aware that, as Professor Tomuschat warns, it ‘should not be overrated since the Court was faced with a request for issuing a provisional measure. The urgency of the matter prevailed over any other consideration’.24 However, the position taken by the Court paves the way for the unconditioned application of HRL even in the event of armed conflict, at least when the relevant matter is not adequately regulated by the lex specialis represented by IHL or when the value protected by the relevant rules of HRL is so fundamental – as with the prohibition of racial discrimination – that even the peculiar situation existing in the event of armed conflict can in no way influence its application, even in the presence of other rules, including those belonging to IHL, that could in principle be applied to the same facts covered by applicable HRL.25 This inference seems to be implicitly confirmed by a statement of the ICJ in a case in the context of which flagrant and serious violations of human rights had been allegedly perpetrated by Rwanda, resulting from acts of armed aggression in the territory of the Democratic Republic of the Congo   Ibid.   ILM 1982, 58. 20   1577 UNTS 3. 21   Available at (last visited on 30 August 2013). 22  See Democratic Republic of the Congo v Uganda (n 16), para 217. 23  ICJ, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, Order of 15 October 2008, available at (last visited on 30 May 2013), 31, para 112. 24  See Tomuschat C (n 8) 18. 25   In its judgment on ‘Preliminary Objections’, issued on 1 April 2011 (Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Preliminary Objections, Judgment, ICJ Reports 2011, 70 ff), available at (last visited on 30 May 2013), in which the Court found that it had no jurisdiction to decide the dispute, no significant observations were developed with respect to the issue in point. 18 19

From Jus in Bello to Jus Commune Humanitatis 67  (DRC).26 The Court, while concluding that it had no jurisdiction on the case, eventually declared that, although it was precluded by its Statute from taking any position on the merits of the claims made by the DRC . . . there is a fundamental distinction between the question of the acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law. Whether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law.27

It follows from the foregoing that the relationship between HRL and IHL is to be seen as the connection existing between two concentric circles, the smaller being represented by IHL, as lex specialis. Therefore, the relevant aspects covered by IHL should in principle be regulated – due to their speciality – according to the rules pertaining to this body of law. However, as emerges from the statement of the ICJ in the case concerning the application of the Racial Discrimination Convention, a caveat is necessary, ie that IHL must conform with the principles of human rights defending values which are considered so fundamental by the international community that they cannot be the object of derogation even in time of war. In practical terms, this outcome can be achieved through interpreting IHL in a way that is consistent with human rights principles, usually possible due to the coincidence of the basic goal pursued by both bodies of law, ie the protection of the paramount value of human dignity. This idea of ‘consistent interpretation’ paves the way for a dynamic and harmonic approach to the relationship between HRL and IHL, which is usually referred to as the principle of complementarity. As stressed by one scholar, this principle ‘in a sense, enshrines the idea of international law understood as a coherent system’,28 as proclaimed in the rule of interpretation codified by Article 31(3)(c) of the Vienna Convention on the Law of Treaties.29 The two bodies of law in point can therefore mutually reinforce, particularly through the interpretation of one consistent with the principles enshrined by the other.30 However, theory can sometimes be difficult to implement. In fact, the two principles of, respectively, IHL as lex specialis and consistent interpretation between the two bodies of law in point can be hardly reconciled 26  See ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, ICJ Reports 2006, 6 ff. 27   Ibid, para 127 (emphasis added). 28  See Droege C, ‘The Interplay between International Humanitarian Law and International Human Rights in Situations of Armed Conflict’ (2007) Israel Law Review 310 ff, 337. 29  See McLachlan C, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) International and Comparative Law Quarterly 279 ff. 30  See Droege C (n 28) 340 ff.

68  Federico Lenzerini with each other in some practical circumstances.31 This happens, in particular, with respect to the right to life, the degree of protection of which varies substantially depending on whether it is considered under the perspective of HRL or that of IHL. According to HRL, in fact, apart from the limited contexts in which the death penalty is still lawful, use of lethal force is only justifiable for reasons of self-defence or for defending the life of others, in the event of an imminent danger that cannot by prevented through resorting to any other means. On the contrary, according to IHL, lethal force can normally be used to pursue the ordinary purposes of armed conflicts and, within certain limits, incidental killing of civilians not directly participating in hostilities is tolerated. The test that is commonly applied in order to establish whether or not taking of life occurring in time of war can be considered lawful pursuant to IHL, is that of proportionality. Under IHL this term takes a different meaning to the one it has in the realm of HRL. In fact, while in the context of the latter it requires that the force used is proportionate to the purpose of protecting someone’s life, with respect to IHL proportionality is measured on the basis of the military advantage concretely pursued, in the sense that, for it to be satisfied, it is sufficient that incidental loss of civilian life is not excessive in relation to such an advantage.32 The problem of how these two approaches can be reconciled has been addressed in detail in the context of the recent practice of the European and Inter-American Courts of Human Rights (hereinafter ECtHR and IACtHR, respectively), and the African Commission of Human and Peoples’ Rights (ACHPR). This practice will be examined in the following section. III.  THE PRACTICE OF REGIONAL MONITORING BODIES CONCERNING HUMAN RIGHTS BREACHES OCCURRING IN ARMED CONFLICTS

The most recent decades have been characterized by the progressive intensification of non-international armed conflicts, some of which, due to the sporadic fighting by which they are characterized and the ambiguous status of the armed groups involved, remain at the fringe of war proper and situations of internal disturbances and tensions that cannot be properly qualified as armed conflicts.33 Some of these conflicts have offered regional 31   The use of both principles to describe the relationship between HRL and IHL has been criticized by Milanović M, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2010) Journal of Conflict & Security Law 459 ff, respectively 476 and 464. 32  See Droege C (n 28) 345–46. 33   See Article 1, para 2 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (Protocol II).

From Jus in Bello to Jus Commune Humanitatis 69  human rights bodies the opportunity to face situations of human rights breaches taking place during the fighting, and consequentially to address a number of problems concerning their competence to deal with those cases as well as the law applicable to them.34 In fact, while the institutional competence of human rights bodies is limited to cases in which HRL is applicable, the proper sector of law competent to regulate situations occurring in the event of armed conflict is in principle IHL, which should be technically extraneous to the sphere of competence of said bodies. A.  The Practice of the Inter-American Court of Human Rights Historically, the first case of significance to this enquiry was Las Palmeras, decided by the IACtHR in 2000. The facts of the case occurred in the context of internal fighting between the State army and the left-wing guerrillas which – although characterized by the alternation between intense peaks and times of relative calm – has taken place in Colombia from the 1960s to date. In particular, in January 1991, during an armed operation in Las Palmeras (in the municipality of Mocoa, Department of Putumayo), close to a rural school, the National Police Force extrajudicially executed six defenceless persons, including a schoolteacher. The IACtHR was asked by the Inter-American Commission on Human Rights (IACHR) to declare that Colombia had violated the right to life ‘embodied in Article 4 of the [American Convention on Human Rights (ACHR)], and Article 3, common to all the 1949 Geneva Conventions, to the detriment of six persons’.35 Colombia, in its preliminary objections, contested the competence of both the IACHR and the IACtHR ‘to apply international humanitarian law and other international treaties’.36 Then, at the public hearing, the respondent State clarified its position, specifying, on the basis of the distinction between ‘interpretation’ and ‘application’, that ‘[t]he Court may interpret the Geneva Conventions and other international treaties, but it may only 34   For a comprehensive analysis of these cases, see Mori R, The Protection of the Right to Life in Non-International Armed Conflicts: What the ECTHR and the IACTHR Should Learn from One Another, LLM Thesis (University of Toronto, 2008) (on file with the author). See also Hampson FJ, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body’ (2008) International Review of the Red Cross 549 ff; Gioia A, ‘The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict’ in Ben-Naftali O (ed), International Humanitarian Law and International Human Rights Law, (Oxford, 2011) 201 ff. 35   See IACtHR, Case of Las Palmeras v Colombia, Series C No 67, Preliminary Objections, Judgment of 4 February 2000 (all judgments of the IACtHR are available at (last visited on 30 August 2013)), para 12 (emphasis added; footnotes omitted). It is to be noted that the IACHR has never shown any reluctance in considering itself competent to apply IHL; see, for instance, Case 11.137, Juan Carlos Abella v Argentina, 18 November 1997, Doc OEA/Ser.L/V/II.98 doc 6 rev of 13 April 1998, para 154 ff. 36  See Case of Las Palmeras v Colombia (n 35) para 16.

70  Federico Lenzerini apply the [ACHR]’.37 The Court – confuting the reasoning of the IACHR – accepted the objection of Colombia, and concluded declaring its incompetence to ‘determine whether the acts or the norms of the States are compatible with [. . .] the 1949 Geneva Conventions’, its competence being limited to releasing ‘an opinion in which the Court will say whether or not [the conduct of a State party] is compatible with’ the ACHR.38 This conclusion was partially mitigated by the position taken by the Court in stressing that it is in any case ‘competent to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible or not with the American Convention [. . .] [therefore] interpret[ing] the norm in question and analyz[ing] it in the light of the provisions of the Convention’.39 However, the IACtHR was shortly offered the opportunity to reconsider its position in the subsequent case of Bámaca Velásquez, also decided in 2000, concerning the torture and execution of a leader of a revolutionary organization fighting against the national army in Guatemala in the context of the internal conflict taking place in the country during the 1980s and 1990s. Like in Las Palmeras, also in this case the Court was asked by the IACHR to decide whether Guatemala had violated, in addition to a number of provisions of the ACHR, Common Article 3.40 In this respect, quite surprisingly, in its final oral arguments the respondent States declared that, ‘although the case was instituted under the terms of the American Convention, since the Court had “extensive faculties of interpretation of international law, it could [apply] any other provision that it deemed appropriate”’.41 The approach followed by Guatemala arguably offered the Court the chance to revise the position expressed in Las Palmeras with respect to its competence to deal with IHL.42 In fact, although reiterating its incompetence ‘to declare that a State is internationally responsible for the violation of international treaties that do not grant it [. . .] competence’,43 it could nevertheless observe that certain acts or omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the 1949 Geneva Conventions and, in particular, common Article 3.44   Ibid, para 30 (emphasis added).   Ibid, para 33. 39   Ibid, paras 32–33. 40   See IACtHR, Case of Bámaca Velásquez v Guatemala, Series C No 70, Merits, Judgment of 25 November 2000, para 1. 41   Ibid, para 204. 42  See Mori R, ‘The Protection of the Right to Life in Non-International Armed Conflicts: What the ECTHR and the IACTHR Should Learn from One Another’ (n 34) 17. 43  See Case of Bámaca Velásquez v Guatemala (n 40), para 208. 44   Ibid. According to Byron C, ‘Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies’ (2007) Virginia Journal of International Law 839 ff, 862, this statement would imply the competence of the Court to condemn the conduct of 37 38

From Jus in Bello to Jus Commune Humanitatis 71  In addition – noting that ‘there is a similarity between [Common Article 3] and the provisions of the American Convention and other international instruments regarding non-derogable human rights (such as the right to life and the right not to be submitted to torture or cruel, inhuman or degrading treatment)’ – the Court reiterated, more explicitly and less timorously than in Las Palmeras, that ‘the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention’.45 Having the foregoing in mind, what is now important to stress is that in the instant case the IACtHR actually found a violation of (inter alia) Article 4 ACHR, which protects the right to life, in a context with respect to which – as explicitly clarified by the Court itself – ‘[a]t the time when the facts relating to this case took place, Guatemala was convulsed by an internal conflict’.46 In other words, the Court found the ACHR applicable in the event of a non-international armed conflict, on the basis of the assumption that, irrespective of the fact that such a conflict existed, although the State has the right and obligation to guarantee its security and maintain public order, its powers are not unlimited, because it has the obligation, at all times, to apply procedures that are in accordance with the law and to respect the fundamental rights of each individual in its jurisdiction.47

This was further confirmed by the Court through pointing out that, as Guatemalan legislation was not sufficient or adequate to protect the right to life, in accordance with the provisions of Article 4 of the American Convention [. . .], in any circumstance, including during internal conflicts[, . . .] the Court reserves the right to examine this point at the appropriate time during the reparations stage.48

In sum, fundamental human rights (as enshrined in the ACHR) and the rule of law,49 according to the IACtHR, must be respected also in the event of (non-international) armed conflict. The Court reached this conclusion without actually relying on IHL as a source of interpretation of the relevant provisions of the ACHR. In fact, in assessing the specific issue of the violation of Article 4, the Court did not include any reference to IHL; in addition, its appraisal concerning the actual existence of the said violation a State and to recommend it to comply with its international obligations pursuant to IHL. For a more restrictive approach, see Moir L, ‘Law and the Inter-American Human Rights System’ (2003) Human Rights Quarterly 182 ff, 199. 45  See Case of Bámaca Velásquez v Guatemala (n 40), para 209. 46   Ibid, paras 121(b) and 207. 47   Ibid, para 174. In particular, a breach of Article 4 of the ACHR was found in connection to the violation of Article 7 of the same instrument (providing for the right to personal liberty), which entails a series of judicial guarantees in favour of persons deprived of their liberty that in the instant case had not been granted. 48   Ibid, para 225 (emphasis added). 49   Ibid, para 143.

72  Federico Lenzerini was concluded – positively – well before the Court evaluated the signific­ ance of Common Article 3 for the instant case, and totally independently. Therefore, the IACtHR considered Article 4 sufficient in itself (or in connection with other provisions of the ACHR) to determine whether a breach of the right to life occurred in the instant case (although it took place during an armed conflict), while IHL was (at best) used by the Court ad abundantiam. This approach was confirmed in Castro Prison, in which the Court had to deal with a case of massive extrajudicial executions, as well as cruel, inhuman, or degrading treatment perpetrated by the Peruvian military police and security forces in a Lima’s high security penitentiary, in the context of the civil war taking place in Peru between the national army and the revolutionary group Sendero Luminoso (lasting for nearly two decades from the 1980s to 2000). Also in this case the Court acknowledged the fact that, at the material time, ‘Peru lived a conflict between armed groups and agents of the police force and the military’,50 thus accepting that the facts of the case were contextualized in a situation of non-international armed conflict. Like in Bámaca Velásquez, the Court found that the respondent State breached Article 4 ACHR, without relying on IHL to determine how the right to life was infringed. The Court first reiterated its traditional position that States must adopt the necessary measures not only to prevent and punish the deprivation of life as a consequence of criminal acts, bt [sic] also to prevent arbitrary executions by their own police force [. . .] The State must especially supervise that their police forces, which were attributed the use of legitimate force, respect the right to life of those under its jurisdiction.51

Then, relying on the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials52 (an instrument which – as is evident from its text – is conceived for application in peacetime), the Court affirmed that police forces can make recourse to the use of lethal weapons only when it is ‘strictly inevitable to protect a life’, provided that less extreme measures result ineffective.53 In fact, due to the circumstances of the case and of the modalities of their action, the conduct of the Peruvian forces could not be justified on the basis of the ‘power and even the obligation of the State to guarantee security and maintain public order, especially within the prisons, using force if necessary’54; such a justification could instead exist if State agents had been forced to act the way they behaved by a ‘need of self 50  See IACtHR, Case of the Miguel Castro-Castro Prison v Peru, Series C No 160, Merits, Reparations and Costs, Judgment of 25 November 2006, para 197(1). 51   Ibid, para 238. 52   Available at (last visited on 30 August 2013). 53  See Case of the Miguel Castro-Castro Prison v Peru (n 50) para 239. 54   Ibid, para 240.

From Jus in Bello to Jus Commune Humanitatis 73  defense, or an inminent [sic] danger of death or serious injuries against the police officers’.55 In other cases, however, the IACtHR has adopted a different approach. This happened in particular in the case of the Mapiripán Massacre, relating to the slaughter of civilians that took place in Mapiripán, Meta Department, in Colombia, perpetrated in July 1997 by a group of Colombian paramilitaries, the United Self-Defense Forces of Colombia. In this case the Court, in evaluating the international responsibility of the State, declared that it could not ‘set aside the existence of general and special duties of the State to protect the civilian population, derived from International Humanitarian Law’,56 specifically Common Article 3 and Protocol II. As a consequence, the Court affirmed that ‘[t]he obligations derived from said international provisions [. . .] are useful to interpret the Convention, in the process of establishing the responsibility of the State and other aspects of the violations alleged in the instant case’.57 This attitude was confirmed by the Court in a subsequent case concerning other massacres, perpetrated between 1996 and 1997 in Colombia by the national Army, by means of successive armed raids featuring the assassination of defenceless civilians, deprivation of property, terror and displacement.58 Having proven the existence of an internal armed conflict in Colombia,59 the Court stressed that it was useful and appropriate that the scope of the provisions of the ACHR (with respect in particular to Art 21, protecting the right to property) was examined through using ‘international treaties other than the American Convention, such as Protocol II [. . .], to interpret its provisions in accordance with the evolution of the inter-American system, taking into account the corresponding developments in international humanitarian law’.60 In particular, according to the Court, Articles 13 and 14 of Protocol II, concerning, respectively, protection of the civilian population and protection of the objects indispensable to the survival of the civilian population, had been breached.61 In addition, the Court noted that, as it had been proven that the facts of the case ‘took place in a widespread situation of internal forced displacement that affected Colombia as a result of the internal armed conflict’, the problem of forced displacement had to be examined ‘in light of international human rights law and international humanitarian law’.62   Ibid, para 245.  See IACtHR, Case of the ‘Mapiripán Massacre’ v Colombia, Series C No 134, Merits, Reparations and Costs, Judgment of 15 September 2005, para 114 (emphasis added). 57   Ibid, para 115 (emphasis added). 58  See IACtHR, Case of the Ituango Massacres v Colombia, Series C No 148, Preliminary Objections, Merits, Reparations and Costs, Judgment of 1 July 2006. 59   Ibid, para 125. 60   Ibid, para 179 (emphasis added). 61   Ibid, para 180. 62   Ibid, para 208 (emphasis added). 55 56

74  Federico Lenzerini A more recent judgment, concerning a case of forced disappearances, extrajudicial executions and torture occurring in the context of the internal armed conflict of Guatemala, reiterated the same approach.63 The Court found, in particular, that the members of the family of victims of serious human rights breaches – including forced disappearances – have the right to know the truth about the fate of their loved persons, as it is confirmed, inter alia, by customary international humanitarian law applicable to both international and non-international armed conflicts.64 In this respect, lack of disclosure of truth translates into a breach of Article 5 ACHR, establishing the right to humane treatment. In the latter three cases, hence, the Court used IHL as a parameter for the interpretation of the provisions of the ACHR. However, it must be noted that in the practice of the IACtHR, IHL is considered only to the extent that it plays a positive role, consisting of enhancing the content of the norms of the ACHR in applying to armed conflicts; in this respect, it is sometimes used ad abundantiam, to reinforce the Court’s conclusions already reached on the basis of the ACHR.65 On the contrary, in the cases in which IHL would contemplate a lesser protection than HRL on account of the situation of emergency existing in wartime, it is carefully ignored by the Court; otherwise, it might lead to the consequence of hindering the full applicability of the provisions of the ACHR. This was implicitly confirmed by the Court in the case of the Ituango Massacres, through stressing that, even though appreciating the difficult circumstances experienced by Colombia in trying to achieve peace, ‘the country’s situation, however difficult, does not liberate the State Party to the American Convention from its obligations under this treaty, which subsist particularly in cases such as this one’.66 It is also to be stressed that, in both Mapiripán Massacre and Ituango Massacres, the Court considered respect for, and correct application for, IHL a necessary condition to ensure due respect for human rights. In fact, among the measures of reparation to be taken by the respondent States, 63   See IACtHR, Caso Gudiel Álvarez y Otros (‘Diario Militar’) vs Guatemala, Series C No 253, Fondo, Reparaciones y Costas, Judgment of 20 November 2012. 64   Ibid, para 299. 65   See IACtHR, Case of the ‘Las Dos Erres’ Massacre v Guatemala, Series C No 211, Preliminary Objection, Merits, Reparations and Costs, Judgment of 24 November 2009. The case related to the alleged lack of due diligence in the investigation, prosecution, and punishment of the persons responsible for the massacre of 251 individuals, including children and women, perpetrated by the armed forces of Guatemala in 1982, in the context of the internal armed conflict which upset the country from 1962 to 1996. In dealing with the violation of the rights of the child – protected by Article 19 ACHR – the Court ‘noted’ that ‘within the context of an internal armed conflict, the State’s obligations toward children are defined in Article 4(3) of the Geneva Conventions’ Additional Protocol II’. This Article establishes that: ‘the children will be provided with the care and help they need, and, particularly: [. . .] b) the timely measures to facilitate the reunion of the temporarily separated families will be taken’. 66  See Case of the Ituango Massacres v Colombia (n 58), para 300.

From Jus in Bello to Jus Commune Humanitatis 75  the Court included, in the context of human rights education, the obligation to ‘provide training to members of its armed forces and its security agencies on the principles and norms of human rights protection and international humanitarian law’.67 In sum, the IACtHR, despite some initial hesitation, has affirmed its competence to use – and has actually used – IHL as an interpretative tool of the provisions of the ACHR, to the extent that these provisions need to operate in wartime. At the same time, however, the Court, except in Las Palmeras, has constantly affirmed its competence to deal with human rights breaches occurring in armed conflicts, also emphasizing the fact that the scope of the provisions of the ACHR – at least with respect to those which, according to Article 27(2),68 may not be suspended in time of emergency – cannot be limited in light of the inherent difficulties usually faced by States in ensuring their application in difficult situations like those usually characterizing armed conflicts.69 In a very recent case concerning the issue in point, the Court even explicitly rejected a preliminary exception raised by Colombia using an argument equivalent to the one which in Las Palmeras had persuaded the judges to declare their incompetence to evaluate whether human rights breaches are compatible with IHL. In this case,70 the respondent State claimed that, since the alleged facts had occurred in a typical situation of armed conflict, they fell outside 67   Ibid, para 409. See also Case of the ‘Mapiripán Massacre’ v Colombia (n 56), para 316; Case of the ‘Las Dos Erres’ Massacre v Guatemala (n 65), para 251. 68   According to Article 27(2) ACHR, the provisions of the Convention which may not be the object of derogation even in time of war, public danger, or other emergency that threatens the independence or security of a State Party are the following: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government). This rule extends to the judicial guarantees essential for the protection of the said rights. 69   The applicability of the provisions of the ACHR in the event of armed conflict has been recently reiterated in Case of Anzualdo Castro v Peru, Series C No 202, Preliminary Objection, Merits, Reparations and Costs, Judgment of 22 September 2009, and in Case of the ‘Las Dos Erres’ Massacre v Guatemala (n 65). Other cases in which the Court has exercized its competence with respect to human rights breaches which occurred in armed conflicts are: Case of the Plan de Sánchez Massacre v Guatemala, Series C No 105, Merits, Judgment of 29 April 2004; Case of the Pueblo Bello Massacre v Colombia, Series C No 140, Judgment of 31 January 2006; Case of the Rochela Massacre v Colombia, Series C No 163, Merits, Reparations and Costs, Judgment of 11 May 2007; Case of Contreras et al v El Salvador, Series C No 232, Merits, Reparations and costs, Judgment of 31 August 2011; Case of the Río Negro Massacres v Guatemala, Series C No 250, Preliminary Objection, Merits, Reparations, and Costs, Judgment of 4 September 2012; Case of the Massacres of El Mozote and nearby places v El Salvador, Series C No 252, Merits, Reparations and Costs, Judgment of 25 October 2012. 70   See IACtHR, Case of Massacre of Santo Domingo v Colombia, Series C No 259, Preliminary Objections, Merits and Reparations, Judgment of 30 November 2012. The case concerned a bombing carried out by the Colombian air forces in December 1988 in the area of Santo Domingo, which resulted in the death of 17 civilian persons (including six children), while 27 other civilians (including nine children) were wounded.

76  Federico Lenzerini the competence of the Court, which would not include the laws of war.71 The Colombian Government also submitted a subsidiary objection, to be considered by the Court in the event that it would not accept the previous one, asking that in the judgment on the merits the judges would not include any finding based on alleged violations of IHL, but only on breaches of the ACHR.72 The Court replied that several of its past judgments were related to events that occurred in the course of non-­ international armed conflicts, as well as that the ACHR does not establish any limits to the Court’s competence to deal with cases taking place in the event of armed conflicts.73 Quoting the cases of Bámaca Velásquez v Guatemala74 and of the ‘Mapiripán Massacre’ v Colombia,75 the IACtHR reiterated that the use of IHL as a source of interpretation, complementary to the ACHR, constitutes an absolutely correct operation. In fact, in doing this the Court does not presuppose any hierarchy between different legal orders, since there is no doubt on the applicability and relevance of IHL in situations of armed conflict. Therefore, the Court may well take into account the rules of IHL – as specific law in the field – to ensure a more specific application of the provisions of the ACHR in defining the scope of State obligations arising from them.76 The judges, consistently, evaluated the alleged violations by Colombia in the case in point making extensive recourse to IHL as an interpretative source and confirmed the full applicability of the ACHR in the event of armed conflict. In particular, the Court found that the respondent State violated the right to life (protected by Art 4 ACHR) and the right of every person to have her physical, mental and moral integrity respected (enshrined in Art 5.1 ACHR), basing its conclusion on the fact that Colombia breached three well-established principles of customary IHL, ie the principle of distinction between civilians and combatants, the principle of proportionality in attack and the principle of precaution in attack.77 In addition, in considering the special protection that States owe to children, the Court referred to Article 4.3 of Protocol II, establishing the obligation to provide children with the care and means of protection they need.78 Finally, the IACtHR also used customary IHL – establishing the obligation of belligerent parties to distinguish between civilian goods and military objectives and not to make the former a target of attack – to substantiate its finding that Colombia also breached the right to property protected by Article 21 ACHR.79   Ibid, para 16.   Ibid, para 18. 73   Ibid, para 22. 74   See nn 40–44 and corresponding text. 75  See Case of the ‘Mapiripán Massacre’ v Colombia (n 56) para 107. 76  See Case of Massacre of Santo Domingo v Colombia (n 70) paras 23–24. 77   Ibid, para 211 ff. 78   Ibid, para 238. 79   Ibid, para 271. 71 72

From Jus in Bello to Jus Commune Humanitatis 77  The judgment just described offers a strong confirmation that the jurisprudence examined in this paragraph is now etched in stone as a piece of evolutionary interpretation of the IACtHR.80 B.  The Practice of the African Commission on Human and Peoples’ Rights A regional human rights monitoring body that has shown no hesitation in considering HRL as fully applicable in situations of armed conflict is the ACHPR. In developing its approach, the African Commission has certainly been facilitated by the fact that no general provision exists in the African Charter on Human and Peoples’ Rights equivalent to Article 15 of the European Convention of Human Rights (ECHR) or Article 27 ACHR, allowing derogation in situations of emergency (including armed conflicts) with respect to most rights recognized by their provisions. The ACHPR has explicitly affirmed that, since [t]he African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations [. . .] even a civil war [. . .] cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter.81

Following this assumption, for example, the Commission found the State of Chad responsible for breaching a number of provisions of the African Charter due to the massive violations of human rights perpetrated 80   The significance of IHL in the context of the inter-American human rights system has been recently elucidated by Judge ad hoc Ramón Cadena Rámila in a concurring opinion released in the case of ‘Las Dos Erres’ Massacre (see Case of the ‘Las Dos Erres’ Massacre v Guatemala (n 65), Concurring opinion, Ramón Cadena Rámila, Judge ad hoc). In particular, the circumstances that IHL ‘is of a compulsory nature’ and that ‘its rules constitute absolute commitments that need to be fulfilled by all States without exceptions’ imply the ‘unavoidable responsibility’ of States breaching its provisions. This responsibility may be sanctioned on the basis of the ACHR for at least three reasons, which are interconnected with each other: 1) the interpretation and application of the ACHR ‘do not exclude those of general international law’, as the preamble of the Convention refers to the principles reaffirmed and developed in international instruments of universal and regional nature, as well as to generally recognized principles of international law; 2) the fact that the IACtHR lacks jurisdiction to apply IHL conventions, including the Geneva Conventions, ‘does not mean that the Court cannot consider acts that these conventions typify as grave violations or genocide, as aggravating circumstances . . . This argument becomes stronger when these conventions relate to the violation of a right established in [the ACHR]’; 3) States are in any event bound to respect common Article 3 to the Geneva Conventions as the rules contained therein are ‘part of the customary international law, and even of the jus cogens domain’. 81   See Communication No 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad, 1995, available at (last visited on 30 May 2013), para 21 (emphasis added); Communications No 279/03, Sudan Human Rights v the Sudan, and 296/05, Centre on Human Rights and Evictions v The Sudan, AHRLR, 209, 153, para 165, 28 May 2009.

78  Federico Lenzerini by its security services during the civil war against anti-government groups.82 This position has subsequently been refined by the ACHPR. In particular, in a case concerning the incommunicado detention without trial of a number of journalists in Eritrea, starting from September 2001, the Commission affirmed that ‘[t]he existence of war, international or civil, or other emergency situation within the territory of a state party cannot [. . .] be used to justify violation of any of the rights set out in the Charter’; consequently, ‘Eritrea’s actions must be judged according to the Charter norms, regardless of any turmoil within the state at the time’.83 In addition, the ACHPR also specified that [e]ven if it is assumed that the restriction placed by the Charter on the ability to derogate goes against international principles, there are certain rights such as the right to life, the right to a fair trial, and the right to freedom from torture and cruel, inhuman and degrading treatment, that cannot be derogated from for any reason, in whatever circumstances [. . .] [t]he existence of war in Eritrea cannot therefore be used to justify excessive delay in bringing the detainees to trial.84

According to the Commission’s approach, the application of HRL in the event of armed conflict – even of international character – is total and unconditioned, although the caveat included by the Commission in paragraph 98 of Article 19 v Eritrea85 could lead one to maintain that such a rule is limited to fundamental rights. Indeed, the fact that human rights are treated in exactly the same way both in peacetime and in the event of armed conflict makes Article 27(2) of the African Charter – stating that the rights included in such an instrument ‘shall be exercised with due regard to the rights of others, collective security, morality and common interest’ – applicable to an equivalent extent in both circumstances.86 In any event, most human rights breaches usually perpetrated during an armed conflict are not certainly included within the scope of application of Article 27(2). Consistently, with respect to the long civil war in Darfur, the ACHPR stressed that ‘[t]he forced eviction of the civilian population cannot be considered permissible under Article 27(2) of the African Charter’.87 In this case, the Commission found the State of Sudan responsible for not having acted ‘diligently to protect the civilian population in Darfur against the violations perpetrated by its forces, or by third parties. It failed 82   See Communication No 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad(n 81). 83   See Communication No 275/2003, Article 19 v Eritrea, AHRLR, 2007, p 73, para 87 (emphasis added). 84   Ibid, paras 98–99. 85   Ibid. 86   See Communications No 279/03, Sudan Human Rights v. the Sudan, and 296/05, Centre on Human Rights and Evictions v The Sudan (n 81), para 165. 87   Ibid, para 166.

From Jus in Bello to Jus Commune Humanitatis 79  in its duty to provide immediate remedies to victims’.88 The ACHPR also recognized that the Darfur Region has been engulfed in armed conflict and there has been widespread violence resulting in serious human rights violations. It is the primary duty and responsibility of the Respondent State to establish conditions, as well as provide the means, to ensure the protection of both life and property, during peace time and in times of disturbances and armed conflicts. The Respondent State also has the responsibility to ensure that persons who are in harm’s way, as it seems the victims were, are resettled in safety and with dignity in another part of the country.89

In the end, according to the ACHPR, the human rights that are usually recognized as non-derogable in time of emergency apply fully and unconditionally in the event of armed conflict – in the context of which States are bound to use at least the same level of diligence expected from them in peacetime – irrespective of the existence of the lex specialis represented by IHL. C.  The Practice of the European Court of Human Rights A more laborious practice has been developed by the ECtHR. At first, to use the words of a distinguished scholar, the European Court, in ‘[b]ypassing the lex specialis application of humanitarian law to directly apply human rights law to internal armed conflicts’, developed sic et simpliciter a ‘human rights law of internal armed conflict’.90 This trend, however, has ultimately shifted (at least in part) to a more sophisticated approach, according to which IHL is actually credited with a role in shaping the scope of the provisions of the ECHR applicable in situations taking place in the event of armed conflict. The Court has extensively been offered the opportunity to deal with the issue of applicability of the ECHR in armed conflicts, especially with respect to a number of cases concerning human rights breaches which occurred during the non-international war in the North Caucasus, taking place from 1999 to 2009 between the Russian Army and Chechen separatists. The first two judgments concerning the Chechen civil war were released by the ECtHR on 24 February 2005. In Isayeva, Yusupova and Bazayeva v Russia – decided unanimously – the Court neither addressed the problem of its competence to extend its authority over human rights breaches   Ibid, para 168.   Ibid, para 201. 90  See Abresch W, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) European Journal of International Law 741 ff. On the practice of the ECtHR see also Bowring B, ‘Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the European Court of Human Rights’ (2010) Journal of Conflict & Security Law 485. 88 89

80  Federico Lenzerini occurring in armed conflicts nor raised any doubt on the applicability of human rights norms in wartime, without devoting any consideration to the ‘competence’ of IHL to regulate those breaches. With respect to the killing of some civilian persons (including two children) and the wounding of others, resulting from an aerial missile attack by the Russian forces over a convoy of civilians who were trying to escape from the fighting in Grozny, the Court rebutted the Government’s argument, according to which ‘the attack and its consequences were legitimate under Article 2 § 2(a), i.e. they had resulted from the use of force absolutely necessary in the circumstances of protection of a person from unlawful violence’.91 According to the Court, Article 2 covers not only intentional killing but also the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life [. . .] Any use of force must be no more than ‘absolutely necessary’ for the achievement of one or more of the purposes set out in subparagraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is ‘necessary in a democratic society’ [. . .]. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims.92

In the instant case, therefore, as Russia ‘failed to produce convincing evidence’ that the measures adopted by its army ‘were no more than absolutely necessary for achieving [one of those purposes]’,93 the Court found that a breach of Article 2 had occurred, since, even assuming that the military were pursuing a legitimate aim in launching [the aerial missile attack] [. . .], the Court does not accept that [such an] operation [. . .] was planned and executed with the requisite care for the lives of the civilian population.94

In addition, a violation of Article 2 ECHR also occurred on account of the fact that the Russian authorities had ‘failed to carry out an effective investigation into the circumstances of the attack’,95 reiterating the wellestablished principle according to which the procedural obligation under Article 2, consisting in taking all reasonable steps to ensure that adequate 91   See ECtHR, Isayeva, Yusupova and Bazayeva v Russia, Applications 57947/00, 57948/00 and 57949/00, Judgment of 24 February 2005, para 160. All ECtHR judgments may be found through the HUDOC database, available at (last visited on 30 August 2013). 92   Ibid, para 169 (emphasis added); in reaching this conclusion the Court reiterated what it had already stressed in previous judgments (see, in particular, McCann and Others v the United Kingdom, Application 18984/91, Judgment of 27 September 1995, paras 149–50; Ergi v Turkey, Application 23818/94, Judgment of 28 July 1998, para 79). 93  See Isayeva, Yusupova and Bazayeva v Russia (n 91), para 179 ff. 94   Ibid, para 199. 95   Ibid, para 225.

From Jus in Bello to Jus Commune Humanitatis 81  investigation is carried out into alleged violations of the right to life, continues to apply in difficult conditions, including in armed conflicts.96 The same approach was followed by the ECtHR in a number of other cases, including Isayeva v Russia,97 Khatsiyeva and Others v Russia98 and Mezhidov v Russia,99 the latter two decided in 2008, as well as in Suleymanova v Russia,100 decided by the First Section in 2010. To summarize the ECtHR’s approach, in order to demonstrate that a taking of life is justified in light of paragraph 2 of Article 2 ECHR, the test of absolute necessity must be passed, which translates into the need that the kind of force used is strictly proportionate to the permitted aim pursued (ie, inevitable).101 This goes much beyond than the test of proportionality ordinarily required for a taking of life to be legitimate pursuant to IHL, ie that incidental loss of life is not excessive in relation to the military gain that is intended to be won.102 The applicability of the ECHR in the context of armed conflict is not limited, according to the Court, to Article 2. In Al-Saadoon and Mufdhi v the United Kingdom103 the Court addressed a case of two Iraqi nationals, who, in 2005, during the invasion of Iraq performed by the Multi-National Force led by the United States, had been transferred by British forces to Iraqi authorities in order to be subject to trial for war crimes, with respect to which the punishment of the death penalty was applicable according to Iraqi law. The Court found that, through transferring the applicants to Iraqi authorities without obtaining adequate assurances as to their safety, 96   See, eg, ECtHR, Güleç v Turkey, Application 21593/93, Judgment of 27 July 1998, para 81; Ergi v Turkey (n 92), para 79; Isayeva v Russia, Application 57950/00, Judgment of 24 February 2005, para 210; Avkhadova and Others v Russia, Application 47215/07, Judgment of 14 March 2013, para 116. 97   See previous note; see, in particular, paras 173, 200 and 224 (corresponding, respectively, to paras 169, 199 and 225 of the judgment concerning the case Isayeva, Yusupova and Bazayeva v Russia (n 91)). The case concerned the bombing by the Russian military of the village of Katyr-Yurt in Chechnya on 4 February 2000, as a result of which the applicant’s son and three nieces were killed. 98  ECtHR, Khatsiyeva and Others v Russia, Application 5108/02, Judgment of 17 January 2008. The case concerned a helicopter bombing launched against the village of Arshty, in the Sunzhenskiy District of the Republic of Ingushetia, on 6 August 2000, as a result of which two persons were killed and one wounded. See, in particular, para 129 of the judgment (corresponding to para 169 of the judgment concerning the case Isayeva, Yusupova and Bazayeva v Russia (n 91)). 99  ECtHR, Mezhidov v Russia, Application 67326/01, Judgment of 25 September 2008. The case concerned the bombing by the Russian artillery of the village of Znamenskoye, in Chechnya, which took place on 5 October 1999, as a result of which the applicant’s parents, brother and sisters were killed by a shell. See, in particular, para 56 of the judgment (corresponding to para 169 of the judgment concerning the case Isayeva, Yusupova and Bazayeva v Russia (n 91)). 100   ECtHR, See Suleymanova v Russia, Application 9191/06, Judgment of 12 May 2010, para 76. 101   Ibid, para 82. 102   See section II above. 103  See ECtHR, Al-Saadoon and Mufdhi v the United Kingdom, Application 61498/08, Judgment of 2 March 2010.

82  Federico Lenzerini the United Kingdom breached Articles 2 and 3 of the ECHR.104 Conversely, no violation of Article 6105 was found by the Court, because ‘at the date of transfer, it was not established that the applicants would risk a flagrantly unfair trial before the [Iraqi High Tribunal]’106; however, according to the reasoning of the Court, should such a risk be established, a breach of Article 6 would also have occurred. It is to be noted that in this case the ECtHR extensively described the Geneva Conventions as among the ‘rele­ vant international legal materials’,107 but did not make any use of IHL in the context of its legal assessment. The case of Al-Saadoon and Mufdhi v the United Kingdom is notable not only for extending the applicability to armed conflicts of human rights other than the right to life, but also for the fact that the Iraqi war was actually an international armed conflict. This means that the applicability of the ECHR is not limited to non-international wars, of course on the condition that the jurisdiction of the respondent State on the applicant(s) – pursuant to Article 1 ECHR108 – is established. Subsequently, in several other cases relating to the Chechen civil war, the ECtHR found that several rights protected by the Convention were infringed. And, again, it totally ignored IHL. This first happened in seven cases decided on 8 April 2010,109 all of which concerned unlawful disappearances and deaths in Chechnya and Dagestan. The Court found various breaches of Arts 2, 3 (for the pain suffered by the applicants due to the loss of their loved persons), 5 (right to liberty and security of the person), 13 (right to an effective remedy) and, in one case, of Article 1 of Protocol 1 (right to peaceful enjoyment of one’s possessions), due to the damages suffered in the applicant’s home.110 The same approach was followed in other cases, decided in 2012, concerning abductions perpetrated by Russian military forces controlling Chechnya.111 Similarly, in two other cases decided on 3 May 2011,112 relating to airstrike attacks performed by 104   According to Article 3 ECHR, ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’. 105   Article 6 ECHR states that ‘[e]veryone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law . . .’. 106  See Al-Saadoon and Mufdhi v the United Kingdom (n 103), para 150. 107   Ibid, particularly paras 90–91. 108   Article 1 states that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. 109  See Abayeva and Others v Russia, Application 37542/05; Abdurashidova v Russia, Application 32968/05; Mudayevy v Russia, Application 33105/05; Sadulayeva v Russia, Application 38570/05; Seriyevy v Russia, Application 20201/05; Tasatayevy v Russia, Application 37541/05; Umalatov and Others v Russia, Application 8345/05. 110  See Abdurashidova v Russia (n 109). 111   See ECtHR, Vakhayeva v Russia, Application 27368/07, Judgment of 10 July 2012; Ilayeva and Others v Russia, Application 27504/07, Judgment of 10 July 2012; Umarova and Others v Russia, Application 25654/08, Judgment of 31 July 2012. 112   See ECtHR, Kerimova and Others v Russia, Applications 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05; Khamzayev and Others v Russia, Application 1503/02.

From Jus in Bello to Jus Commune Humanitatis 83  Russian forces in 1999, which resulted in killings and physical injuries of civilians as well as in the destruction of houses, the Court found breaches of Arts 2, 8 (right to private and family life) and Article 1 of Protocol 1, again without even mentioning the rules of IHL. Not in all cases, however, is the relevant practice of the ECtHR oriented towards completely ignoring the role that can be played by IHL in the context of human rights breaches occurring in armed conflicts. In a recent case, concerning the disappearance in life-threatening circumstances of nine men during the Turkish military operations in northern Cyprus in July and August 1974, the Grand Chamber affirmed that Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict.113

The Grand Chamber, therefore, made explicit reference to international humanitarian law as a tool for the interpretation of a provision of the ECHR, following the approach previously embraced by the IACtHR. The Grand Chamber then found that, albeit in the instant case no proof existed demonstrating that any of the disappeared persons had been unlawfully killed, a continuing violation of Article 2 had occurred, on account of the failure of the respondent State ‘to provide for an effective investigation aimed at clarifying the fate’ of the nine disappeared men.114 Following a similar approach, in a recent case the First Section of the Court, in noting that ‘[g]ranting amnesty in respect of “international crimes” [. . .] is increasingly considered to be prohibited by international law’, specified that such an understanding may be drawn from a number of sources, including ‘customary rules of international humanitarian law’.115 The ECtHR went even further. In the case of Kononov v Latvia, the Court did in fact apply IHL incidenter tantum. In this case the applicant was convicted for war crimes by Latvian courts, as a result of his participation in a punitive military expedition taking place on 27 May 1944 (in the course of the Second World War), by virtue of a law approved in Latvia in 1993 that criminalized acts such as genocide, crimes against humanity or peace, war crimes and racial discrimination. The final guilty verdict, in a prosecution which began in 1998, was released by the Latvian Supreme Court Senate on 28 September 2004. The applicant complained before the ECtHR 113   See ECtHR, Varnava and Others v Turkey, Applications 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, Grand Chamber, Judgment of 18 September 2009, para 185 (emphasis added). A footnote is included in the paragraph in point making explicit reference to the four Geneva Conventions of 1949, the two Additional Protocols of 1977 and the Third Additional Protocol of 2005. 114   Ibid, para 194. 115   See ECtHR, Marguš v Croatia, Application 4455/10, Judgment of 13 November 2012, para 74.

84  Federico Lenzerini that he had been a victim of retroactive application of criminal law, and that the respondent State had therefore infringed the principle of nullum crimen, nulla poena sine lege enshrined in Article 7 ECHR.116 The Third Section Court – by a majority of one (4–3) – found Latvia responsible for a violation of Article 7 for applying criminal law retroactively, since at the time of the relevant facts no provision of national or international law existed, according to the majority, which qualified the acts committed by the applicant as war crimes. The Third Section considered pertinent to its assessment the Regulations annexed to the Hague Convention of 1907 (Hague Regulations),117 as well as customary IHL.118 However, the Third Section held that it had ‘not been adequately demonstrated that the attack on 27 May 1944 was per se contrary to the laws and customs of war as codified’ by the IHL instruments existing at the relevant time119 and that there was ‘no plausible legal basis’ in international120 or domestic law121 that could serve as a foundation to lawfully convict the applicant for the acts of which he was accused. The reason for this was, as stated by the Third Section, that ‘the applicant could not reasonably have foreseen on 27 May 1944 that his acts amounted to a war crime under the jus in bello applicable at the time’.122 The finding of the Third Section was reversed by the Grand Chamber of the ECtHR in its judgment of 17 May 2010. The Grand Chamber carried out a very meticulous assessment of pertinent IHL instruments already existing at the relevant time or adopted shortly after the events at stake, as well as of the historically pertinent practice.123 In light of such an assessment, it held that by May 1944 war crimes were defined as acts contrary to the laws and customs of war and [. . .] international law had defined the basic principles underlying, and an extensive range of acts constituting, those crimes. States were at least permitted (if not required) to take steps to punish individuals for such crimes, including on the basis of command responsibility.124 116   Article 7 ECHR reads as follows: ‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed [. . .]’. 117   See ECtHR, Kononov v Latvia, Application 36376/04, Judgment of 24 July 2008, para 118. On 26 January 2009 the case was referred to the Grand Chamber. 118   Ibid, para 120 ff. 119   Ibid, para 137. 120   Ibid. 121   Ibid, para 148. 122   Ibid. For a critical comment on the reasoning developed by the Court see Pinzauti G, ‘The European Court of Human Rights’ Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v. Latvia’ (2008) Journal of International Criminal Justice 1043 ff. 123   See ECtHR, Kononov v Latvia, Grand Chamber, Judgment of 17 July 2010, especially para 200 ff. 124   Ibid, para 213.

From Jus in Bello to Jus Commune Humanitatis 85  Therefore, ‘there was a sufficiently clear legal basis, having regard to the state of international law in 1944, for the applicant’s conviction and punishment for war crimes as the commander of the unit responsible for the attack [. . .] on 27 May 1944’.125 The Grand Chamber added that ‘any prescription provisions in domestic law were not applicable [. . .] and [. . .] the charges against the applicant were never prescribed under international law [. . .]’.126 In addition, it refuted the argument according to which at the relevant time the applicant could not reasonably have foreseen that his acts amounted to a war crime; in fact, having regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers in the established circumstances of the operation on 27 May 1944 [. . .], even the most cursory reflection by the applicant, would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable.127

For this reason, it was reasonable ‘to find that the applicant could have foreseen in 1944 that the impugned acts could be qualified as war crimes’,128 as well as, consequently, that ‘the applicant’s prosecution (and later conviction) by the Republic of Latvia, based on international law in force at the time of the impugned acts and applied by its courts, cannot be considered unforeseeable’.129 In light of the foregoing, the Grand Chamber concluded that, ‘at the time when they were committed, the applicant’s acts constituted offences defined with sufficient accessibility and foreseeability by the laws and customs of war’.130 This led the Court to affirm that ‘the applicant’s conviction for war crimes did not constitute a violation of Article 7 § 1 of the Convention’.131 The case just described is of special significance for the present chapter, for the fact that the Court was obliged to resolve the question préjudicielle of the existence, content and legal status of IHL at the time in which the crimes attributed to the applicant were perpetrated. Therefore, the ECtHR used a hermeneutic interpretation of IHL, preventing it from being considered a mere fact. On the contrary, in the dynamics of the case in point, it must be thought of as a set of legal rules used by the Court to extend its competence.132 As a consequence, the Court did de facto apply IHL. In the instant case, however, the Court was expressly authorized to carry out this   Ibid, para 227.   Ibid, para 233. 127   Ibid, para 238. 128   Ibid, para 239. 129   Ibid, para 243. 130   Ibid, para 244. 131   Ibid, para 245. 132   Ibid, para 1049. 125 126

86  Federico Lenzerini operation by the text of Article 7 ECHR. This provision, in fact – through making explicit reference to ‘act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’133 – demands the Court incidenter tantum to evaluate and interpret the content of relevant domestic and/or international law in order to ascertain whether or not a breach of the principle of non-retroactivity of criminal law did actually take place. An equivalent approach was followed by the Grand Chamber in 2011, in the case of Al-Jedda.134 The case concerned a former national of the United Kingdom, of Iraqi origins, who since 2004 was detained for more than three years in a detention centre in Iraq – without being formally charged with a crime – on the grounds of his alleged terrorist activities. In this case the Court made extensive use of IHL. In fact, like in Kononov, the ECtHR needed to evaluate two questions préjudicielles on the basis of that body of law, which therefore determined the content of the Court’s final decision. First, the Court considered the United Kingdom (together with the United States) as ‘occupying power’ in Iraq ‘within the meaning of Article 42 of the Hague Regulations’135; on this basis, the Court concluded that the applicant fell within the United Kingdom’s jurisdiction. The Court then passed to evaluate whether there were applicable rules justifying the treatment of the applicant by the United Kingdom. In this respect, while United Nations Security Council Resolution 1546(2004) explicitly authorized the United Kingdom to take measures to maintain security and stability in Iraq, ‘neither Resolution 1546 nor any other UN Security Council Resolution explicitly or implicitly required the United Kingdom to place an individual whom its authorities considered to constitute a risk to the security of Iraq into indefinite detention without charge’.136 Therefore, ‘in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention’.137 Hence, the Court evaluated whether ‘in the absence of express provision in Resolution 1546, there was any other legal basis for the applicant’s detention which could operate to disapply the requirements of Article 5 § 1’.138 The Court concluded that Article 43 of the Hague Regulations – requiring occupying powers to take ‘all the measures in [their] power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’ – presupposes a duty to secure respect for the applicable   Emphasis added.   See ECtHR, Al-Jedda v the United Kingdom, Application 27021/08, Judgment of 7 July 2011. 135   Ibid, para 77. 136   Ibid, para 109; see also para 106. 137   Ibid. 138   Ibid, para 107. 133 134

From Jus in Bello to Jus Commune Humanitatis 87  rules of HRL.139 At the same time, it appears ‘from the provisions of the Fourth Geneva Convention that under international humanitarian law internment is to be viewed not as an obligation on the Occupying Power but as a measure of last resort’.140 As a consequence, the ECtHR found the United Kingdom responsible for violating Article 5 ECHR. In another landmark decision, also concerning facts which occurred during the military occupation of Iraq by the United Kingdom, released on the same day of the Al-Jedda judgment, the Grand Chamber found the respondent State responsible for violating Article 2 ECHR for failing to carry out effective investigation with respect to the killing of five civilians during security operations by the British Army in Basra. In particular, some of the victims had been shot dead or shot and fatally wounded by British soldiers.141 According to the Grand Chamber, since at the relevant time the United Kingdom was an occupying power in the area, it had the obligation to ensure full application of the ECHR there, and, consequently, it had jurisdiction over the applicants’ relatives. Like in Al-Jedda, the Court resolved the question préjudicielle consisting in ascertaining whether the United Kingdom was actually an occupying power on the basis of Article 42 of the Hague Regulations.142 The position of the ECtHR is certainly to be welcomed, as it ensures that the level of protection of human life applicable in time of war is equivalent to that available in time of peace. In this regard, going back to IHL would represent a clear step backwards with respect to the present practice of regional monitoring bodies in terms of effectiveness of human rights, as well as an abrupt interruption of the progressive humanization of the conduct of armed conflicts.143 IV. CONCLUSION

In light of the practice examined in the previous section, the full application of human rights – with respect, at least, to those rights that cannot be 139   Ibid. The Court relied on the ICJ’s judgment relating to the Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (n 16). 140   Ibid. 141   See ECtHR, Al-Skeini and Others v the United Kingdom, Application 55721/07, Judgment of 7 July 2011. 142   Ibid, para 143. 143  This idea is substantially shared by Abresch W (n 90) 767. For a different view see Pinzauti G (n 122) 1059–60, advocating the opportunity for the Court to apply IHL also in the context of the application of Article 2, ‘when deciding whether a particular instance of deprivation of life in the context of an armed conflict resulted from a “lawful act of war”, or was instead a violation of the right to life’; this position is based on the reasoning that ‘[t]he ECHR, although formally applicable in times of armed conflict, is not designed to regulate such exceptional situations. Instead humanitarian law, which is the applicable lex specialis, is better tailored to regulate the belligerents’ behaviour on the battlefield’.

88  Federico Lenzerini derogated from in time of emergency – is not hindered in the event of armed conflict, while IHL remains at best an interpretative tool for better defining the scope of application of the relevant human rights provisions in time of war. This implies that, in the event of breaches of fundamental human rights perpetrated by members of the State Army or other personnel under the control of the State, the latter cannot escape its responsibility through simply demonstrating that a breach of human rights occurred incidentally, and was not excessive, in relation to the military advantage sought. On the contrary, a far more severe test applies – especially with respect (but not limited) to the taking of life – on the basis of which a breach can only be justified if it was absolutely necessary and strictly proportionate to the aim pursued, and this aim was worth safeguarding in terms of balance between competing rights. The recent practice of the regional monitoring human rights bodies has paved the way for a highly promising development in the long process of humanization of armed conflicts representing the essential rationale of IHL. In fact, especially with respect to protection of the paramount right to life, the approach consisting in considering HRL fully applicable to hostilities, if crystallized, would facilitate the grant of a higher level of protection for human life than the one which can be inherently ensured by IHL. Of course, from a technical perspective the practice in point can raise a problem of coherence with some legal principles that are generally accepted within the system of international law, particularly the principle according to which lex specialis derogat legi generali. In fact, once IHL is considered as the lex specialis entitled to regulate the conduct of hostilities, it should be applied in place of HRL to situations taking place in the event of armed conflict. However, this problem of legal theory could be easily resolved if the practice of the regional monitoring human rights bodies investigated in this chapter were seen as the latest step in the development of IHL, eventually leading the rules belonging to this body of law substantially to coincide with human rights principles and, by extension, notably improving the outcomes of the process of humanization of war which began in the nineteenth century. In this way HRL would finally became the jus commune humanitatis accompanying the human being in all moments of her/his existence, irrespective of the events – either peaceful of warring – characterizing the surrounding environment. The fact that this is something more than a ‘romantic’ inference is demonstrated by the circumstance that – with the only exception of the very first case of the IACtHR – no State involved in the relevant cases before the regional monitoring bodies has ever disputed neither their competence to address situations occurring in wartime nor the applicability of HRL with respect to these situations, showing that an opinio juris has developed supporting and complementing the practice of these bodies.

4 Human Rights and the Modernization of International Law RICCARDO PISILLO MAZZESCHI

T

I. INTRODUCTION

HE THEORY OF human rights has had a great impact on the whole system of international law, with the result of modernizing it. We may distinguish between the impact exercised: a) on the structure itself of the international legal system; b) on the area of State responsibility; c) on other fields of international law. II.  IMPACT OF HUMAN RIGHTS ON THE TRADITIONAL STRUCTURE OF INTERNATIONAL LAW

The theory of human rights has gradually assumed great importance in international law and has had an extensive impact on the international legal system as a whole. One may therefore speak of a true process of structural change of this system. This depends on two main reasons. First, that theory is, by its own nature, ‘revolutionary’1 with regard to the traditional structure of interstate relationships, because it conflicts with the principle of State sovereignty, which is at the foundation of ‘classic’ international law and which has protected for centuries the domestic jurisdiction of the State on its own citizens. Secondly, the theory of human rights, tending to give the individual an increasing role within the international community, conflicts with the traditional and typical interstate nature of international law. We shall now deal, in a more specific way, with the structural characters of international law, which have been changed. 1  See Cassese A, Diritto Internazionale: II. Problemi della Comunità Internazionale (Gaeta P, ed) (Bologna, 2004) 83.

90  Riccardo Pisillo Mazzeschi A.  Content and Scope of Application of International Law The typical content of ‘traditional’ international law regulates only matters concerning inter-State relationships; that is, legal questions substantially pertaining to the external relations of States. The theory of human rights has produced a considerable break with respect to that element, because it transfers at the international legal level the relationships between the State and its own citizens and gives the individual a central role. In this way, it has produced a dynamic trend towards an overall expansion of the content and scope of application of international law. In fact, contemporary international law regulates not only the traditional inter-State relationships, but also an increasing number of relationships which exist between States and individuals and of inter-individual relationships; that is, it deals with legal questions which formally belonged only to the domestic jurisdiction of States. Suffice it to think of international criminal law, contemporary international humanitarian law, European Union law, internal administrative law of international organizations, international economic law concerning foreign investments, international environmental law, many bilateral or multilateral treaties which directly establish individual rights, etc. The International Court of Justice has confirmed this trend, by stating that the 1963 Vienna Convention on Consular Relations contains provisions which give international rights to individuals.2 In short, one could say that contemporary international law, with regard to its substantive content, regulates not only State interests, but also individual interests. In other words, inter­ national law has greatly expanded its scope of application and it has become a more complete and modern legal system. This important development originated from the theory of international human rights. B.  Function and Nature of International Law Traditional international law, especially through its customary norms, had the typical function of governing coexistence among States, in the framework of an equalitarian and horizontal structure of the international community. It was basically founded on the principles of reciprocity and bilateralism. Therefore it had the typical legal nature of private law, since it tended to regulate the individual and ‘egoistic’ interests of each single State. 2   See ICJ, LaGrand (Germany v USA), Merits, Judgment of 27 June 2001, ICJ Reports 2001, paras 77 and 89; Avena and Other Mexican Nationals (Mexico v USA), Judgment of 31 March 2004, ICJ Reports 2004, para 40. See also Inter-American Court of Human Rights (IACtHR), The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Series A No 16 (1999) para 80.

  Human Rights and the Modernization of Intl Law  91 This private law-oriented nature regarded two main aspects: a) the lack of concern for collective interests of States; b) the absence of fundamental values belonging to the international community as a whole. The first aspect is highlighted by the fact that traditional international norms, even when they were addressed to many States, worked in a bilateral and reciprocal way. The second aspect is shown by the fact that almost all the traditional norms of general international law could be derogated by States through an agreement. This is further confirmation that traditional international law did not recognize the existence of fundamental and peremptory values of the international community as a whole. With regard to these two aspects, the theory of human rights has produced a radical change, which is well shown by the two concepts of obligations erga omnes and of ius cogens. The first concept is linked to the development and establishment, in contemporary international law, of some collective or even community interests of States. It is clear that the initial impulse and the decisive incentive for the development of erga omnes obligations came from the field of human rights. In fact, customary norms and multilateral treaties on human rights are paradigmatic examples of norms respectively containing erga omnes obligations and erga omnes partes obligations. It follows that their violation by a State affects a right, or better a legal interest, of the whole international community (in case of erga omnes obligations) or of any other State Party of a multilateral treaty (in case of erga omnes partes obligations). This depends on the fact that such obligations protect State interests of collective or community nature, rather than State individual interests. Therefore, in our view, it is clear that the new concept of solidaristic obligations, even though it still coexists with the traditional concept of bilateral and reciprocal obligations, has introduced an important change in the typical function and nature of traditional international law. In fact the recognition of collective and community values constitutes a progressive trend towards the ‘public law-oriented’ nature of international law. One can make similar remarks with regard to the concept of ius cogens, which also originates from the growth of collective interests of States; but more specifically from the development, in contemporary international law, of some fundamental and non-derogable values of the international community as a whole. The legal notion of ius cogens, as is well known, finds a first international recognition in Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties and was later universally recognized. However, it should not be confused with the concept of erga omnes obligations, since the former does not concern the particular structure of the obligation, but rather the value, the force of resistance, and perhaps even the hierarchic rank of the norm, which is peremptory (ie non-derogable) and prevails over other conflicting and non-peremptory customary

92  Riccardo Pisillo Mazzeschi norms. Moreover, the notion of ius cogens is more limited than the notion of erga omnes obligations. However, there are also strong affinities between the two concepts. The idea at the basis of ius cogens is that some fundamental and ‘constitutional’ values of the whole international community must be protected. A similar (but less strong) conception inspires the notion of erga omnes obligations: some ‘public’ interests of States should be recognized by contemporary international law. Having said that, it is clear that the theory of human rights has played an important role in creating and developing the concept of ius cogens and that, in practice, many international peremptory norms correspond to customary norms on human rights, such as the prohibition of gross violations of these rights and the prohibition of single and serious violations of some fundamental rights (slavery, torture, racial discrimination, apartheid, war crimes, etc). Therefore the theory of human rights has contributed, also through the concept of ius cogens, to changing and modernizing the typical nature of traditional international law: beside the ‘private law-oriented’ dimension of that law, a ‘public-law oriented’ dimension has gradually materialized. C.  International Personality or Capacity of Individuals As is well known, under ‘traditional’ international law only the States are formal addressees of international norms and considered as subjects of that law. The individual is only an ‘object’ or, at least, a mere ‘de facto bene­ ficiary’ of international norms. More recently, the international personality of international organizations has been recognized. The theory of human rights has given a fundamental contribution to a further change of this traditional conception. Nowadays one can maintain that international law regulates formally and directly (ie, without need to be incorporated in domestic law) also some relationships between States and individuals (and other non-state entities) and some inter-individual relationships. In other terms, the individual is now a direct addressee of some international (primary, secondary and tertiary) norms; and therefore he is also a holder of rights and a bearer of obligations at the international level. The international norms on human rights are the best, but not the only, examples of norms imposing on States’ obligations, to which rights of other States and of individuals correspond. Likewise, the norms of international criminal law are the main example of international norms directly imposing obligations on individuals. International law scholars do not agree on the concept itself of inter­ national personality. Therefore they still debate whether the above-­ mentioned change means that nowadays the individual is a ‘subject’ or a ‘partial subject’ of international law or merely an ‘actor’ in the international arena. In my view, this discussion is by now only a theoretical and

  Human Rights and the Modernization of Intl Law  93 useless one, which does not resolve the real and concrete problem; that is, to establish which are the addressees of each single international norm and the holders or bearers of each single international right or obligation. This is a pragmatic solution to the problem.3 If one needs a more theoretical and systematic solution, I think that we could adopt the distinction, borrowed from domestic legal systems, between legal personality and legal capacity. That means that the individual is an international subject, but has each time different capacities (and sometimes no capacity at all) depending on each single norm of international law. In any case, leaving aside any theoretical view, it is clear that the international law of human rights, strengthening the international role of the individual, has radically changed a fundamental element, which had characterized for centuries the traditional structure of international law. Nowadays one may maintain, in my opinion, that the international community should be understood within a wide meaning, as including not only States and international organizations, but also individuals and other non-State actors. III.  IMPACT OF HUMAN RIGHTS ON STATE RESPONSIBILITY FOR INTERNATIONALLY WRONGFUL ACTS

The theory of human rights, together with other factors, has also produced important changes within the system of the secondary norms of international law, especially those concerning State responsibility for wrongful acts. In fact, it has affected the fundamental elements of that field, which were constituted by the principle of bilateralism and the principle of the strictly inter-State character of the responsibility. The theory of human rights has modernized these two aspects, because the above-­ mentioned structural changes have necessarily produced an impact also on the ‘pathological’ dimension of international law, represented by the internationally wrongful act and State responsibility. In particular, those changes: a) have established, beside the traditional regime of State responsibility, another regime of so-called ‘aggravated’ responsibility; b) have expanded the range of States and other subjects which are entitled to invoke the responsibility of the offending State; c) have contributed to developing a modern theory of international obligations.

3  See Higgings R, Problems and Process: International Law and How We Use It (Oxford, 1995) 48 ff; Pisillo Mazzeschi R, Esaurimento dei Ricorsi Interni e Diritti Umani (Torino, 2004) 24–32; Brownlie I, Principles of International Law, 7th edn (Oxford, 2008) 65.

94  Riccardo Pisillo Mazzeschi A.  ‘Aggravated’ State Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms As we already said, an important aspect of the process of structural change of contemporary international law is the development and establishment of the concept of ius cogens. From the perspective of State responsibility for internationally wrongful acts, the notion of ius cogens has contributed to creating, within the International Law Commission (ILC) Project of Draft Articles on that topic, the concept of international crimes of States, which was afterwards substituted by the notion of ‘serious breaches of obligations under peremptory norms of general international law’ (Art 40 of the Project). These serious breaches produce an ‘aggravated’ responsibility of the offending State. In fact, they give rise to some particular consequences, which are added to the usual consequences of the wrongful act, and which entail a common sharing in some specific obligations by all States: a) the obligation to cooperate to bring to an end through lawful means the breach; b) the obligation not to recognize as lawful a situation created by the breach; c) the obligation not to render aid or assistance in maintaining that situation (Art 41). In our view, these particular consequences, even if they contribute to aggravating the responsibility of the offending State, are not very effective and fall short of expectations, taking into account that they should apply sanctions against serious breaches of fundamental values of the international community as a whole. However, one should consider that the ILC Project does not prejudice the norms on State responsibility established by general international law, which may be applied as lex specialis (Art 55) or as norms not regulated by the Project (Art 56) or as rules of the UN Charter (Art 59). Moreover, in case of serious breaches of ius cogens obligations, we think that Article 54 of the ILC Project is also applicable. This provision specifically regulates breaches of erga omnes obligations; but it can be interpreted as governing also serious breaches of ius cogens. It establishes the right of any State, entitled to invoke the responsibility of the offending State, to take ‘lawful measures’ against the latter, in order to ensure cessation of the breach and reparation in the interest of the injured State or of the bene­ ficiaries of the obligation breached. The ILC Project does not expressly clear the concept of ‘lawful measures’; but, in the light of the Commentary to Article 54 and of Articles 55, 56 and 59, one may maintain that, in order to define such a concept, it is possible to make a reference to general international law (even in its progressive development) and to the UN Charter. Therefore, we think that, in case of serious breaches of ius cogens (for instance, gross violations of human rights), the ‘lawful measures’ may include: a) lawful and pacific retaliations; b) pacific

  Human Rights and the Modernization of Intl Law  95 countermeasures4; c) measures not involving the use of armed force recommended or decided by the Security Council under Article 41 of the UN Charter, when the serious breaches of ius cogens determine the existence of a threat to the peace or of the other conditions provided for by Article 39 of the Charter; d) measures involving the use of armed force, authorized by the Security Council, still in cases governed by Article 39. In conclusion, the legal regime of aggravated responsibility for serious breaches of ius cogens is not very effective in the provisions of the ILC Project; but it can be strengthened through a dynamic interpretation of international law. In any case, this regime may give rise to an important modernization of the field of State responsibility. However, we must admit with regret that the great potentialities of ius cogens in the field of State responsibility have not been, so far, fully utilized by international courts. In particular, the International Court of Justice has for some time avoided dealing with the breaches of ius cogens. More recently the Court has declared that genocide is a serious breach of ius cogens in two important judgments.5 But it has lost an important opportunity to deepen the legal regime of serious breaches of ius cogens in its recent judgment on Jurisdictional Immunities of the State of 3 February 2012.6 B.  Invocation of Responsibility for Breach of Erga Omnes Obligations We have seen that another important aspect of the process of change of contemporary international law, owing to the theory of human rights, concerns the increasing role of collective and community interests of States. This development has materialized with the growth of many international norms which establish erga omnes or erga omnes partes obligations. The solidarity of the obligation entails the consequence that its breach affects an interest of all States (or all States Parties of a multilateral treaty). In other words, it produces an expansion of the States which are entitled to invoke the responsibility of the offending State. Having said that, the most important problem is to establish how the principle of solidarity actually works in case of breach of erga omnes obligations. 4   A part of the international practice supports pacific countermeasures: see, for example, the countermeasures adopted by some States in situations of gross violations of fundamental human rights (against Uganda in 1978, against Poland and USSR in 1981, against South Africa in 1986, against Yugoslavia in 1998). 5  ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (new Application: 2002), Judgment of 3 February 2006, ICJ Reports 2006; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007. 6  ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, available at < www.icj-cij.org/homepage/index.php>.

96  Riccardo Pisillo Mazzeschi In this regard, the ILC Draft Articles on State responsibility for internationally wrongful acts make a general distinction between injured States (Art 42) and States other than an injured State which are entitled to invoke the responsibility of the offending State (Art 48). The former States can assert all the traditional consequences of the wrongful act. The latter States, instead, can assert only some of the typical consequences of the wrongful act. In particular, they may claim cessation of the wrongful act, guarantees of non-repetition, and reparation only in the interest of the injured State (if there is an injured State) or of the beneficiaries of the obligation breached (for instance, the individual victims of human rights’ violations). Moreover, these States may adopt against the offending State those ‘lawful measures’ (Art 54) of which we have already spoken. However, in our view, when the breach of an erga omnes obligation does not entail also a serious breach of ius cogens, the concept of ‘lawful measures’ should be interpreted in a more restrictive way; that is, it should be limited to lawful and pacific retaliations. It seems quite logical that the legal consequences of a grave breach of ius cogens should be more serious than those of any simple breach of a solidaristic obligation. If we accept this view, we may maintain that, with regard to State responsibility for breach of erga omnes obligations, the ILC Draft Articles have reached a kind of compromise: they have widely expanded the number of States entitled to react to the breach, but, at the same time, they have greatly limited the measures of reaction which such States may take. It should be added that, with regard to breaches of treaty norms establishing erga omnes partes obligations, many treaties (especially the main conventions on human rights) provide for supervisory bodies and procedures in order to ascertain and punish the breaches. Then it is clear that, according to the principle of lex specialis, any State Party must use the supervisory mechanism provided for by the Treaty and must abstain from resorting to retaliations or countermeasures. In conclusion, the expansion of the entitlement to invoke responsibility for breach of erga omnes obligations, in spite of its limits, constitutes another important modernization of the secondary norms of international law. C.  State Responsibility towards Individuals and Individual Right to Reparation International human rights law, by contributing to the development and establishment of the concept that the individual may be a direct addressee of some international norms, has produced another change in the field of State responsibility, since it has affected and jeopardized the classic principle of the inter-State character of international responsibility. In fact, in

  Human Rights and the Modernization of Intl Law  97 our view, nowadays the individual may, in certain cases, be an addressee of international secondary norms7; and therefore he can claim and assert the responsibility of a State. In other terms, if a State breaches a primary obligation which is directed not only towards another State but also towards an individual, such State is internationally responsible not only towards the other State but also towards the individual. Unfortunately, the ILC Draft Articles on State responsibility for internationally wrongful acts do not tackle these innovative problems, because they deal only with the international responsibility of States towards other States.8 But the ILC has not excluded (rectius has implicitly admitted) that contemporary international law may contain norms on State responsibility towards an individual.9 The most important practical consequences of a legal regime on State responsibility towards individuals concern: a) the individual right to invoke State responsibility; b) the individual right to claim reparation. The right of the individual to invoke State responsibility is clearly shown by the numerous cases in which an individual may bring a judicial or a quasi-judicial action against the offending State before international supervisory bodies on human rights. But similar individual actions are possible also in other fields of international law. With regard to the right of the individual to claim reparation, its existence in international law is demonstrated by numerous treaty norms on human rights, which establish that the responsible State has an obligation to redress the injury towards the individual victim. The judicial and quasijudicial practice of the international supervisory courts and bodies on human rights shows, very clearly, that the decisions of these bodies often establish a reparation (restitution, compensation or satisfaction) which is directly in favour of the individual victim, even if the obligation of reparation is up to the State responsible for the breach.10 Moreover, in support of this argument, at least with regard to gross violations of human rights, one can cite the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory11; the General Assembly Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Flagrant Violations of Human Rights and Serious Breaches of Humanitarian Law12; the Report adopted by the   See the LaGrand and Avena judgments of the ICJ (n 2).  See Pisillo Mazzeschi R, ‘The Marginal Role of the Individual in the ILC’s Articles on State Responsibility’ (2004) Italian Yearbook of International Law 39 ff. 9   See Articles 33(2) and 33 of the ILC Project and their Commentaries. 10   For an extensive examination of this practice see Bartolini G, Riparazione per Violazione dei Diritti Umani e Ordinamento Internazionale (Naples, 2009). 11  ICJ, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004. 12   UN Doc A/RES/60/147, 16 December 2005. 7 8

98  Riccardo Pisillo Mazzeschi International Commission of Inquiry on Darfur13; and the Resolution of the Institute of International Law on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes.14 Therefore, one may conclude that the individual is a holder of a right to reparation for violations of human rights, and that such right is directly attributed by international law. Nowadays, one may also maintain that the individual has a right to reparation also for the breach of certain norms of international humanitarian law. In short, one may speak, also with regard to this issue, of an important modernization of international law on State responsibility. D.  Different Categories of State Obligations and Different Forms of Responsibility for their Breach It is well known that the so-called objective element of the internationally wrongful act is the breach of an international obligation. Therefore it is clear that the topic of State responsibility cannot leave aside a theory of international obligations, which should examine and systemize various categories of obligations and various consequences in case of their breach. The practice of the international supervisory bodies on human rights has given an import­ant contribution to a better clarification of some categories of international obligations, whose breach produces different forms of responsibility. International human rights lawyers often adopt the distinction between ‘obligations to respect’, ‘obligations to protect’ and ‘obligations to fulfil’ human rights. In our view, such distinction is not a convincing one.15 Instead, we think that the above-mentioned practice has confirmed and specified the distinction between negative and positive obligations and, especially within the latter, the distinction between ‘obligations of result’, ‘obligations of due diligence’ and ‘obligations of progressive realization’.16 There is an obligation of result when the international norm obliges the State to obtain, through an action, a result, whose realization does not entail a particular risk or uncertainty. One may speak of an obligation to succeed. Instead, there is an obligation of due diligence when the international norm obliges the State to adopt a certain conduct in itself, aside from the result of that conduct; because the realization of the result is, by its own 13   Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, paras 595–99. 14   Adopted on 10 September 2009, available at . 15  See Pisillo Mazzeschi R, Responsabilité de l’Etat pour Violation des Obligations Positives Relatives aux Droits de l’Homme, in Collected Courses of the Hague Academy of International Law (Recueil des Cours), vol 333 (2008) 242–49. 16   Ibid, 282–97 and 311–496.

  Human Rights and the Modernization of Intl Law  99 nature, uncertain or subject to risk. Therefore one can ask of the State only a particular effort of diligence in order to reach the result. One may also speak of ‘best effort obligations’. Lastly, there is an obligation of progressive realization when the international norm obliges the State to act in order to ensure gradually, as time passes, the full realization of the result asked by the norm. Typical examples are many norms on economic, social and cultural rights, whose full realization needs some time. However, it should be noted that the State is not free as to the time and the means, but it is obliged to proceed, as quickly and effectively as possible, and to use all appropriate means and all available resources, in order to reach the final result asked by the norm. In the field of human rights, the distinction between these three categories of obligations is applied by the judicial and quasi-judicial practice of the international supervisory bodies and it is very useful to identify with more accuracy the State conducts really required by each obligation and the forms of State responsibility in case of breach. In reality, such practice has better developed and clarified a distinction which already existed in the general theory of international obligations. IV.  IMPACT OF HUMAN RIGHTS ON OTHER FIELDS OF INTERNATIONAL LAW

International human rights law, as we have already said, has also had an impact on many other fields or single norms of the international legal system.17 We shall give only some examples. International humanitarian law and international criminal law are the two fields which, being strictly linked with human rights law, have been mostly influenced by that law. In fact, international humanitarian law has greatly mitigated its original interstate character, to such an extent that one should now recognize that the individual may be a direct addressee of some norms of that law. Moreover, a confluence has materialized between international humanitarian law and international human rights law, and the International Court of Justice has established that some human rights are applicable even in times of armed conflict.18 International criminal law is very much linked with international human rights law and it is influenced by the latter, because its main object is to strengthen, through the instrument of individual criminal responsibility, 17   See especially Kamminga M and Scheinin M (eds), The Impact of Human Rights Law on General International Law (Oxford, 2009). 18  See ICJ, The Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 ICJ Reports 1996; The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (n 11); Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, ICJ Reports 2005.

100  Riccardo Pisillo Mazzeschi the protection of fundamental human rights in time of peace and in times of armed conflict. But the theory of human rights has also had an impact on many other fields of international law. With regard to the sources of international law, that theory has contributed to creating a more dynamic and flexible system, by strengthening the role of opinio iuris with respect to diuturnitas in customary law, by increasing the importance of treaties and of soft law in the process of the creation of new customary norms, and finally by revaluating the importance of general principles of law recognized by civilized nations, especially in the new fields of international law, in which customary norms have not yet materialized. It should also be recalled the abovementioned impact of human rights on the development and establishment of the concept of ius cogens. With regard to general and instrumental norms of international law, one may underline that the theory of human rights has influenced: a) the process of formation of treaties, because of the important role exercised by the United Nations, by other international organizations and by soft law in that process; b) the rules on reservations to treaties; c) the rules on interpretation of treaties; d) the rules on termination and suspension of treaties because of breach; e) the rules on States’ succession on treaties. Coming to the fields of general and substantive norms of international law, one may think, for example, of: a) the norms on the treatment of aliens, which have been widely absorbed by the rules on human rights; b) the norms of international environmental law, where the individual human right to a healthy and safe environment has developed; c) the international norms on immunities, typical examples of State sovereignty, in which the protection of human rights and of workers’ rights are developing; d) the norms of international economic law, in which some human rights of a collective nature and some mechanisms for dispute settlement open to individuals are emerging; e) some norms of the law of the sea and the law of common spaces, in which the theory of human rights has contributed to the development of the concepts of common heritage of mankind and of protection of future generations. Lastly, the theory of human rights has also influenced the secondary norms of international law. We have already spoken of the field of State responsibility. But also the norms on diplomatic protection, another typical bulwark of the traditional State-centred international law, are undergoing a partial process of modernization, based on a certain degree of protection for individual rights.19 19  See Flauss JF (ed), La Protection Diplomatique – Mutations Contemporaines et Pratiques Nationales (Brussels, 2003); Vermeer-Kunzli AMK, The Protection of Individuals by Means of Diplomatic Protection – Diplomatic Protection as a Human Rights Instrument (Leiden, 2007); Pisillo Mazzeschi R, Impact on the Law of Diplomatic Protection in Kamminga M and Scheinin M (eds), The Impact (n 17) 211 ff.

  Human Rights and the Modernization of Intl Law  101 V.  CONCLUSION

In conclusion, one may maintain that nowadays it is difficult to find a field of international law, on which the theory of human rights has not produced or is not producing meaningful changes. The most important one are those affecting the structure itself of international law (see section II.). The broadening of the scope of application of international law; the trend towards an increasing protection of collective, solidaristic and community interests; the development of fundamental and peremptory values of the international community as a whole; the broadening of the subjects of international law and the increasing role of the individual in the international legal system, have produced a process of radical transformation and modernization of the traditional international law. Contemporary international law may still be defined as the law of the international community; but, as we already said, such community should have, in our view, a new and wider meaning, because it now includes States, international organizations, individuals and other non-state actors. Moreover, the new international community does not confine itself to govern the coexistence and coordination of the individual and private interests of States; but, on the contrary, it expresses also its own values, which tend, although slowly and gradually, to overcome internationalism and move in the direction of universalism.

5 Reparation for Damage Suffered as a Consequence of Breaches of the Law of War NATALINO RONZITTI

V

I. INTRODUCTION

IOLATIONS OF THE law of war may happen both as a breach of rules of international armed conflicts or rules of non-international armed conflicts. For the first category, the law to be considered is that contained in the Hague Convention No IV of 1907 and in Protocol I of 1977, additional to the Four Geneva Conventions. Both state that a belligerent is responsible for the conduct of its armed forces. Until recently, only violations of law in international armed conflicts came into consideration. Jus ad bellum is properly concerned with interState violence, whilst the use of force against rebels during a civil war is not regarded as a violation of international law. Jus in bello rules relate both to international and non-international armed conflicts. However, the codification of rules on reparations for violations of jus in bello has, until now, only dealt with international armed conflict. For non-international armed conflict there is no general rule and norms regulating reparations should be extracted from State practice or from general principles of law. I.  THE VIOLATION OF JUS IN BELLO: THE 1907 HAGUE CONVENTION NO IV AND PROTOCOL I OF 1977 ADDITIONAL TO FOUR GENEVA CONVENTIONS

The responsibility for violations of jus in bello, ie for violations of the law regulating armed conflict, is enshrined both in Article 3 of Hague Convention No IV of 1907 and in Article 91 of Protocol I additional to the Geneva Conventions. Both state that a Party to the conflict is obliged to

104  Natalino Ronzitti pay compensation for violations of the Regulation appended to The Hague Convention No IV and of the provisions of the Geneva Conventions or of the Additional Protocol, respectively. Both provisions add that the compensation is due ‘if the case demands’. However, this formulation does not set out a limit on State responsibility; it means only that compensation is due if other forms of reparation, for instance restitution, are not possible. The belligerent is responsible for all acts committed by persons forming part of its armed forces, including acts committed ultra vires. The responsibility for violations of the law of war is also established in connection with the rules on the protection of cultural property, as demonstrated by Article 38 of the 1999 Protocol II to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, which states that the criminal responsibility of an individual does not prejudice the responsibility of States, according to international law, including the duty of reparation. The rule on responsibility for violations of the law of war and the obligation to pay compensation belong to customary international law. Both Article 3 of the Hague Convention No IV and Article 91 of Protocol I only concern international armed conflict. The central issue is determining whether they only regulate State-to-State relations or if they may also be invoked by an individual victim before a domestic tribunal. The case law, primarily from the Japanese Courts, indicates that the Hague Convention does not contain self-executing provisions and that an individual does not have any right to claim damages before a domestic tribunal. This opinion was followed by the US and German Tribunals which had the occasion to judge claims by individuals. A different stance was taken by the Greek Court of Cassation in the Distomo affair (a decision later reversed) and by the Italian Military Tribunals, which condemned German nationals who committed war crimes during World War II. The Italian Courts, in addition to inflicting penalties, also required the wrongdoers to pay compensation in conjunction with Germany. The International Court of Justice (ICJ) Advisory Opinion on the Legal Consequences of the Construction of a Wall in Palestine is also relevant here. The Court affirmed that Israel had violated a number of rules of international law and was under the obligation ‘to make reparation for the damage caused to all natural or legal persons concerned’.1 However, the critics say that this sentence is just ‘a short cut’, that is not conducive in a direction on which a true right to reparation may be founded.

1   ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para 152.

  Reparation and War Damages  105 III.  THE DECLARATION ADOPTED BY THE ILA AT THE HAGUE (2010)

As discussed above, reparation and compensation for war damages, and in particular for violation of the rules on armed conflict, is a State-to-State matter and an individual has no locus standi to enforce State responsibility and obtain redress for a violation. In order to remedy this situation the International Law Association (ILA) in 2010 enacted a Declaration of International Law Principles on Reparation for Victims of Armed Conflict.2 Although the Declaration is soft law, it may still influence the work of international bodies, including international tribunals. It may also be rele­ vant for domestic tribunals that have to judge claims by individuals who have been the victim of a violation of the law of war. The Declaration addresses violations occurring in both international and non-international armed conflicts and affirms that the victim, ie the natural or legal person who has suffered harm, has a right to reparation, the form of which may consist of restitution, compensation, satisfaction and guarantees and assurances of non-repetition – either singly or in combination. The responsible party is the author of the violation, which may be a State or an international organization responsible for a violation of the law of armed conflict. Non-State actors may also be included in the category of responsible party. It is of utmost importance that the responsible party establish programmes and maintain institutions to give effect to reparations and that States ensure that victims have a right to reparation under national law. The statutes of limitation may frustrate the right of the individual to reparation. It is thus recommended that the statutes should not unduly impact the victim’s ability to exercise their rights and claim reparation.

IV.  INDIVIDUAL CLAIMS FOR VIOLATIONS OF JUS IN BELLO: THE HURDLE OF IMMUNITY OF STATES FROM FOREIGN JURISDICTION

The main obstacle for individual claims for reparation is the principle of immunity of States from jurisdiction, in addition to the political question and the non-self-executing nature of the provisions establishing a right to reparation. Action by the victim is often defeated since the immunity of the responsible State from jurisdiction in national courts is well established under international law.   The Declaration is available at .

2

106  Natalino Ronzitti The distinction between absolute and relative immunity from civil jurisdiction in foreign countries is a well-settled principle of international law. Since military activities are, by definition, a manifestation of a State’s sovereignty, they fall squarely within the principle of absolute immunity, namely concerning combat activities. The law of State immunity has been the object of two conventions, the 1972 Council of Europe Basel Convention and the 2004 UN Convention on the Jurisdictional Immunities of States and Their Property. Both Conventions follow the method of lists. They affirm the principle of State immunity (Article 15 of the Basel Convention and Article 5 of the UN Convention). Article 5 is paradigmatic: ‘A state enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provision of the present Convention’. The list enumerates the instances in which a State may be submitted to the jurisdiction of another State, eg in cases of commercial transactions or contracts of employment with local manpower. Military activities are excluded from the jurisdiction of foreign States. This principle is expressly stipulated in Article 31 of the Basel Convention and is also affirmed, albeit implicitly, by the UN Convention.3 How can the rule on sovereign immunity be removed? There are two ways: the tort exception and the jus cogens argument. The tort exception is established both in Article 11 of the Basel Convention and in Article 12 of the UN Convention. A number of conditions are required to nullify the rule on sovereign immunity. Firstly, the damage should occur in the forum State; secondly, the author of the damage should be present in the territory of the forum State when the damage occurred. The action should be aimed at recovering pecuniary compensation for death or injury, or damage or loss of property. In the Distomo case, the Greek Areios Pagos (Supreme Court) decided, on November 2000, that Germany could not invoke immunity from jurisdiction for atrocities committed during the occupation of Greece at the time of World War II.4 The Greek Special Supreme Court reversed the Areios Pagos decision in 2002.5 It stated that the Basel Convention was not applicable, since Greece was not a State Party, and that it is not declaratory of customary international law, nor was the tort exception retained by the European Court of Human Rights in the judgment McElhinney v Ireland.6 3   Haffner G and Lange L, ‘La Convention des Nations Unies sur les Immunités Juridictionnelles des Etats et de Leurs Biens’ (2004) Annuaire Français de Droit International 45 ff, 75. 4   Prefecture of Voiotia v Federal Republic of Germany, 4 May 2000, reproduced in (2001) American Journal of International Law 198 ff. 5   Panezi M, ‘Sovereign Immunity and Violation of Jus Cogens Norms’ (2003) Revue Hellénique de Droit International 199 ff. 6   ECHR, McElhinney v Ireland [GC], No 31253/96, 21 November 2001, ECHR 2001-XI. McElhinney was fired upon by a British policeman when passing the border with Northern

  Reparation and War Damages  107 Whilst Article 31 of the European Convention states that the Convention cannot prejudice the actions of armed forces stationed in foreign territory, such a clause is not contained in the UN Convention. Yet a number of scholars believe that it is implied. However, as I have demonstrated elsewhere, this opinion is untenable as the drafters of the UN Convention were very familiar with the Basel Convention and did not feel the necessity of excluding the acts of armed forces from the tort exception. According to a doctrinal construction, jus cogens norms are hierarchically superior to all other provisions of international law. If a State infringes a jus cogens norm, it implicitly forfeits its right to immunity from jurisdiction. The jus cogens exception was recognized, together with other lines of reasoning, by the Court of Cassation of Italy in the Ferrini case. Mr Ferrini was deported to Germany during the occupation of Italy by Germany after 8 September 1943 and the Court said that Germany was not entitled to sovereign immunity since Germany had violated fundamental principles of international law.7 The Ferrini finding has been followed in a number of judgments by Italian tribunals. The issue has recently been decided by the International Court of Justice, since Germany instituted proceedings against Italy on 23 December 2008, and the Court did not accept any jus cogens exception to the rule on sovereign immunity.8 This judgment will be commented on in the next paragraph. Greece applied to intervene, stating that it had a legal interest, due to the Distomo affairs, and its request was accepted by the Court in its order of 4 July 2011.9 It is worth noting that the drafters of the 2004 UN Convention knew the jus cogens exception argument and it was not taken into account in completing the list of exceptions to sovereign immunity.10 However, this does not prove that the jus cogens exception might not be part of the exception to sovereign immunity. The Preamble of the New York Convention clearly states that the rules of customary international law continue to govern matters not regulated by the Convention. Since the jus cogens exception is part of customary international law and since that matter is not regulated by the New York Convention, it is possible to conclude that this exception is still valid, notwithstanding the silence of the Convention on this point. Ireland. The Supreme Court of Ireland (1985) stated that the UK was entitled to immunity from jurisdiction. The Irish judgment was confirmed by the ECHR. 7   Court of Cassation, Italy, Ferrini v Repubblica Federale di Germania (Cass Sez Un No 5044/04), 11 March 2004, reproduced in (2004) Rivista di Diritto Internazionale 539 ff. 8   The controversy has been settled by the ICJ in its judgment of 3 February 2012. The judgment rejected all the Italian defences and found that Italy violated the customary norm on the jurisdictional immunity of States by allowing civil claims to be brought against Germany: Jurisdictional Immunities of the State (Germany v Italy): Greece Intervening, ICJ Judgment of 3 February 2012, not yet reported. 9   Jurisdictional Immunities of the State (Germany v Italy), Application by the Hellenic Republic for Permission to Intervene, ICJ, Order of 4 July 2011. 10   Haffner G and Lange L (n 3) 67.

108  Natalino Ronzitti Contrary to the Italian and Greek case law, the Supreme Court of Poland held on 29 October 2010 that the immunity of foreign State from jurisdiction cannot be removed even if the foreign State has committed serious violations of the law of war.11 The Institut de Droit International, in its 2009 Naples session, passed a resolution on international law and State immunity, and the immunity of State agents.12 However, it did not take a stance on the issue of violations of a jus cogens norm and State immunity before foreign jurisdictions and it only affirmed, in Article IV of the Resolution, that the provisions on agents’ immunity ‘are without prejudice to the issue whether and when a State enjoys immunity from jurisdiction before the national courts of another State in civil proceedings relating to an international crime committed by an agent of the former State’. V.  THE ICJ JUDGMENT OF 3 FEBRUARY 2012: JURISDICTIONAL IMMUNITY OF THE STATE (GERMANY V ITALY), GREECE INTERVENING

All the above arguments were rejected by the ICJ that in its 2012 judgment it was stated that there is no exception to the State immunity even if the State in question has committed a serious violation of international law, including the law of war. The conclusion was that the individual cannot bring an action against a foreign State before the tribunals of the forum State and the tort exception cannot be applied to military activities. Nor can the State immunity be defeated by the jus cogens exception, since the norm on State immunity is a procedural rule, while the one on jus cogens has a substantive nature, with the consequence that the two rules are incommensurable. The Court also rejected the argument brought by Italy, according to which the national judge was correct in removing the State immunity since there were no alternative means of redress. Note that the ICJ applied the law on State immunity as it was in existence at the time of judgments rendered in Italy and not at the time when the alleged violation of the law of war had been committed (1943–45). This means that the rule on State immunity for the activities of its armed forces is current international law and should be applied even if the wrong has been committed in the forum State, with the consequence that the individual does

11   Czaplinski W, ‘L’immunité de l’Etat en Droit International devant la Cour Suprême Polonaise (note sur l’affaire Natoniewski)’ (2010) Annuaire Français de Droit International 217 ff. 12   Salmon J, ‘La Resolution de Nâples de l’Institut de Droit International sur les Immunités de Jurisdiction de l’Etat et de ses Agents en cas de Crimes Internationaux (10 Septembre 2009)’ (2009) Revue Belge de Droit International 316 ff.

  Reparation and War Damages  109 not have a direct action and his claim should be endorsed by the national State through the institute of diplomatic protection. The approach taken by the ICJ on State immunity is very conservative. One may speculate that it stops any future development of customary international law in the field. Note that both Norway and Switzerland made declarative interpretations at the time of signing/ratifying the UN Convention on jurisdictional immunities of States, affirming that the UN Convention is without prejudice to any future development in the protection of human rights. A similar declaration will probably be formulated by Italy at the moment of deposit of its instrument of accession. VI.  NON-INTERNATIONAL ARMED CONFLICTS

There is no express provision either in the Geneva Conventions or in Additional Protocol II on responsibility for violations of law of armed conflict. Under the Geneva Convention and their Article 3, violations by the constituted government are construed as an obligation towards the States Parties (Article 1 common to the Geneva Conventions). The rebels too may violate Article 3; however, their international responsibility is not spelled out mainly for the difficulty (political, even if not theoretical) to admit insurgents’ legal personality. A violation of law of non-international armed conflict is a violation attributable to the constituted government and/or to the rebels which generate harm for the victims. Who is obliged to pay compensation? The violations committed by the constituted government should be compensated according to the ordinary principles of the international responsibility. The main issue is the holder of the corresponding right and the mechanism for ensuring the enforcement of the right to compensation. For rebels the law of international responsibility (Article 10 of the International Law Commission (ILC) Draft Articles on State Responsibility) affirms that if rebels are victorious they are responsible for the violations committed during the insurrection. What if the insurrection fails? How is it possible to consider accountable under international law a non-State actor? The outlook for the victim to have his right to reparation implemented is very gloomy. A mechanism (a compensation commission for serious violations amounting to war crimes) has been proposed, for instance by the International Commission of Inquiry on Darfur including the establishment of a Trust Fund.13

13   Report of the International Commission of Inquiry on Darfur to the Secretary-General, UN Doc S/2005/60, 1 February 2005, paras 591, 602.

110  Natalino Ronzitti VII.  REMEDIES FOR VIOLATION OF HUMAN RIGHTS LAW

It is important to point out that remedies for violations of human rights law are at the disposal of the individuals who suffered harm during the hostilities, or after they have ended. For harms suffered during the hostilities the remedies available under the law of war are not the only tools at the disposal of individuals. One has to point out that human rights law applies during hostilities unless derogated by the lex specialis of humanitarian law. This is particularly true for non-international armed conflict, unless the derogation clause which is inserted in human rights treaties has been activated by the responsible government. However, even in this case, the core provisions cannot be derogated from, such as the prohibition of torture. The second point to be mentioned concerns the extra-territorial application of human rights treaties. Their provisions apply to foreign territories in so far as they are under the control of the army belonging to a State that has ratified the relevant human rights treaty.14 Even remedies under human rights law may be barred by the doctrine of sovereign immunity, but are not usually subject to the exception of the non-self-executing nature of the provisions giving rights to individuals. Human rights law should be applied, in its entirety, within the territories formerly involved in war and thereafter freed from hostilities. Again, the extraterritorial application of human rights treaties should protect individuals against troops stationing in the territory. In this case the main hurdles are the following: – The stipulation of a SOFA (Status of Force Agreement) with the host country, which usually exempts the stationing troops from the local jurisdiction; – The unwillingness of the international organizations dispatching soldiers or other officials in the host country to be held accountable for their conduct before the local jurisdiction. Claims commissions are, in some cases, instituted and this may provide some remedy against a situation which is not consistent with human rights law and the right to access to justice. Usually the State of nationality of the officials dispatched abroad under the banner of an international organization is not held responsible, but this affirmation was refuted by the judgment of 5 July 2011 of The Hague Court of Appeal which held the Dutch Government responsible for not having given protection to three Bosnian men who had taken refuge with the Dutch contingent serving as members of the UN peace-keeping 14   See for instance Gioia A, ‘The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict’ in Ben-Naftali O (ed), International Humanitarian Law and International Human Rights Law (Oxford, 2011) 201 ff, 207–12.

  Reparation and War Damages  111 forces.15 The Supreme Dutch Court, in its judgment of 13 April 2012, confirmed the judgment. As to the dual attribution (the Netherlands and the UN), the Supreme Court affirmed that the United Nations could not be summoned, since they enjoyed immunity from the legal proceedings. According to the Supreme Court, the rule may not be disregarded even if a violation of the jus cogens rule occurred. On this point the Court applied the finding of the ICJ in the judgment Germany v Italy. VIII.  THE ISSUE OF COLLATERAL DAMAGES

Collateral damages are not a violation of the law of war. However, they may entail extensive harm not only to governments but also to individuals. From the victim’s perspective, harm is harm, whether caused by a violation of the law of war or by collateral damage. The ILA Committee avoided dealing with the issue of collateral damages in adopting the Hague Declaration referred to above. It stated in the Commentary: As regards incidental losses, which are sometimes referred to as ‘collateral damages’, two situations have to be distinguished. On the one hand, incidental losses might be caused by unlawful conduct. Article 51(5)(b) and article 57(2)(b) of Additional Protocol I to the 1949 Geneva Conventions prohibit attacks causing incidental losses which are excessive in relation to the concrete and direct military advantage anticipated. Here, a right to reparation might be triggered. On the other hand, incidental losses might be caused by lawful conduct according to the rules of international law applicable in armed conflict, given that not every injury to civilians constitutes a violation of international law. It is as yet unclear whether a right to reparation is triggered in such a situation. Care should be taken not to render the distinction between lawful and unlawful conduct meaningless. The fact that victims may be entitled to reparation for harm caused by lawful conduct does not mean that responsible parties are to be equally liable for consequences of lawful and unlawful conduct. Rather, pragmatic solutions are to be encouraged.

In the same vein, the current ILA rapporteur on procedural issues for war reparation argued in his report submitted to the Sofia biannual Conference (2012): From a legal perspective, there are two kinds of victims of armed conflict. One is a person who has suffered harm as a result of a violation of rules of inter­ national law applicable to armed conflict. The other is a person who has suffered incidental losses (collateral damages) caused by lawful conduct according to the rules applicable to armed conflict. The ILA Declaration confines the scope 15   Cf van Dam C, ‘The Netherlands Found Liable for Srebrenica Deaths’, ASIL Insight, 19 September 2011; Dannenbaum T, ‘Killings at Srebrenica, Effective Control and the Power to Prevent Unlawful Conduct’ (2012) International and Comparative Law Quarterly 713–28.

112  Natalino Ronzitti of victim to the former because it is as yet unclear whether a right to reparation is triggered in the latter situation. Actually no existing mechanism deals with the claims of person who suffered harm caused by conduct that was explicitly found lawful. Thus policy-makers should confine the competence of possible mechanism to the victims of violations of international law applicable to armed conflict.

The problem is that the victims are still victims even though the act causing the harm is not an international wrong or may be excused. Unless one prefers to rely only on ex gratia payments, the issue, which cannot be solved here, may be approached from the standpoint of Article 27 of the Draft Articles on State Responsibility and the duty to pay a compensation when a circumstance precluding wrongfulness is claimed, or from the standpoint of law relating to injurious acts not forbidden by international law.16 IX.  REPARATIONS FOR VIOLATIONS OF JUS AD BELLUM

Article 31 of the Draft Articles on State Responsibility affirms that the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Article 34 sets out the following methods for full reparation of the injury caused by an international wrong: restitution, compensation and satisfaction. They may be granted either singly or in combination. The point is that while it is certain that a violation of jus ad bellum is an international wrong, it is less certain that the obligation to repair the damages caused by the wrongdoer ‘puisse être adéquatement régie par les dispositions normalement applicables à la responsabilité en droit international’.17 This pessimistic evaluation derives from the practice of the peace treaties after the two World Wars and even Security Council Resolution 687 (1991), terminating the Iraq-Kuwait conflict, is not perfectly in line with the law of international responsibility and the consequences deriving from an internationally wrongful act. Decision No7 of the Eritrea-Ethiopia Claims Commission contains guidance regarding jus ad bellum liability. The starting point is that ‘Compensation can only be awarded in respect of damages having a sufficient causal connection with conduct violating international law’. However, the degree of remoteness to establish the causal link varies and this is reflected in the amount of compensation to be given. Legal causation is explained as a reasonable connection between the violation and the damage, or, as proximate cause. All these criteria entail a measure of 16   Cf Ronen Y, ‘Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict’ (2009) Vanderbilt Journal of Transnational Law 181 ff. 17   Verhoeven J, ‘Preface’ in d’Argent P, Les réparations de guerre en droit international public. La responsabilité internationale des Etats à l’épreuve de la guerre (Bruxelles, 2002) XIII.

  Reparation and War Damages  113 discretion. Another distinction is between direct and indirect damages, or damage foreseeable by the wrongdoer, or, at least, reasonably foreseeable and damage that is unforeseen and unforeseeable. The Claims Commission opted for the criterion of proximate cause, which best describes the connection between the wrong and the damage: In assessing whether this test [i.e. the ‘proximate cause’] is met, and whether the chain of causation is sufficiently close in a particular situation, the Commission will give weight to whether particular damage reasonably should have been foreseeable to an actor committing the international delict in question. The element of foreseeability, although not without its own difficulties, provides some discipline and predictability in assessing proximity. Accordingly, it will be given considerable weight in assessing whether particular damages are compensable.18

The Commission made a distinction between aggressive war and a mere violation of the rule on prohibiting the use of force. While the former entails extensive financial responsibility and full reparation for war damages, the latter renders the financial responsibility less serious. However, there is no mathematical formula and the proximity criteria should be substantiated by an appropriate finding of a claim commission or a tribunal or through a negotiating process. Note that damages to be compensated from an illegal resort to the use of force are also those provoked by a lawful action according to the jus in bello, for instance the aerial bombardment of a lawful target, such as an airfield. This was the finding of the Eritrea-Ethiopia Claims Commission in its Final Award of 17 August 2009. The Commission awarded compensation to Ethiopia for the attack on the Mekele airport, which the Commission found in conformity with the law of war, but was nevertheless an action arising from the context of Eritrea’s illegal recourse to violence.19 This finding is in accordance with the opinion rendered by a number of learned writers.20 To argue otherwise, ie to endorse the contrary opinion, according to which the wrongdoer would not be responsible for that conduct which is in keeping with the law of war, would render the responsibility for violation of jus ad bellum an empty rule. At most, it can be concluded that respect for jus in bello is a kind of extenuating circumstance, influencing the quantum of compensation. If a belligerent violates jus ad bellum and simultaneously commits a 18   Eritrea-Ethiopia Claims Commission, Decision No 7, Guidance Regarding Jus ad Bellum Liability. 19   Ethiopia’s Damages Claims, paras 426–27. 20   See, for instance, Fitzmaurice G, ‘The Juridical Clauses of the Peace Treaties’, Collected Courses of the Hague Academy of International Law (Recueil des Cours), vol 73 (1948) 255 ff, 325–26; Lauterpacht H, ‘The Limits of the Operation of the Laws of War’ (1953) British Yearbook of International Law 206 ff, 254 and the authors quoted by Koppe EV, ‘Compensation for War Damages under Jus ad Bellum’ in de Guttry A, Post HHG and Venturini G (eds), The 1998-2000 War between Eritrea and Ethiopia. An International Legal Perspective (The Hague, 2009) 417 ff, pp 427–29, who criticizes the above opinion. Cf also the remarks by GowllandDebbas V ‘Some remarks on compensation of war damages’, ibid, 435 ff, 440–48.

114  Natalino Ronzitti violation of the law of war, it will be responsible for the violation of both jus ad bellum and jus in bello. If, on the contrary, it violates only the jus ad bellum, but is abiding by the law of war, it will be held responsible only for the violation of jus ad bellum, according to the meaning described above. This would act as an incentive to respect the laws of war. It is necessary to note that the Draft Articles on the Law of State Responsibility demand that the responsible State terminates the inter­ national wrongful act, if it is continuing, and offer assurances and guarantees of non-repetition ‘if circumstances so require’. Assurances and guarantees of non-repetition are typical of peace treaties, or other inter­ national acts imposed by the victorious party, to prevent the loser from resuming its aggressive policy. For instance, the 1947 Peace Treaty with Italy imposed a vast programme of demilitarization. Security Council Resolution 687 (1991) did the same with Iraq. The practice of peace treaties concluded after World War II reveals that the victorious powers confiscated assets belonging to the defeated State and to its citizens. A limit to the type of property which may be seized is now established by Article I, para 3, of the Protocol to the Hague Cultural Property Convention of 1954, which prohibits the seizure of moveable cultural property as war reparation. X.  THE INTERNATIONAL CRIMINAL COURT AND THE PRINCIPLES ON REPARATIONS

Article 75 of the International Criminal Court (ICC) Statute deals with reparations. The Court may award reparation to the victim upon request or on its own motion, but only in exceptional circumstances in the latter case. The Court is empowered to adjudicate claims against individuals, but not against the State to which the individual belongs, even though the State bears international responsibility. Reparation may consist of restitution, compensation and rehabilitation. According to the opening of Article 75, the Court establishes principles relating to reparations. This was done in the Lubanga Case and the principles drawn are not general principles which may serve as a guide when the reparation is due directly to the individual or to the State for damages suffered by individuals even if the claim is pursued by the State of nationality of the individual.21 As a matter of fact, the ICC pointed out that the principles are tailored for that particular case. They concern reparations due to individuals by the wrongdoer, who is a physical person. In case of the wrongdoer’s lack of substance, reparation should be operated through a Trust Fund, which is a treatycreated body and the victims cannot rely on general international law for 21   ICC, No: ICC-01/04-01/06, 10 July 2012, Trial Chamber I, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo.

  Reparation and War Damages  115 that purpose. The most notable finding for our purpose is the ICC language on the right to reparation. The Court stated that: The Chamber accepts that the right to reparation is a well-established and basic human right, that is enshrined in universal and regional human rights treaties, and in other international instruments . . .22

To this end, the Chamber listed a number of international human rights treaties, which confer a right to reparation to the individual. Ad abundantiam the Universal Declaration on Human Rights is listed among treaties, notwithstanding the fact that the Universal Declaration, whatever its value might be under customary international law, is not a treaty! As for other instruments of international law, the UN Basic Principles are quoted together with a number of other documents. XI.  CONCLUSION

The principle according to which the State that violates the law of war bears responsibility and is obliged to make reparation is well settled in current international law. There is no controversy on the existence of the rule as far as violations of international humanitarian law are concerned, as proven by the provisions enshrined both in the Hague Convention No IV of 1907 and the Protocol I Additional to the Geneva Conventions. A law concerning reparation for violations of jus ad bellum is also emerging as shown by the practice of the Eritrea-Ethiopia Claims Commission. This is the situation for the State-to-State relations. It is open to question whether the individual has a right to reparation under customary inter­ national law, against the wrongdoer, be it a State or a non-State entity. The majority of writers say yes. However, the main problem is how to enforce the right to reparation. In this regard, the main unregulated issues are the following: a)  Reparation (compensation) for violations of rules on non-international armed conflicts; b)  The status of the individual who suffered the harm: may s/he have any locus standi against the wrongdoer?; c)  If there is no treaty mechanism for setting in motion the individual right to reparation, how can this right be enforced under customary inter­ national law? d)  Usually a number of mechanisms are available to States to enforce their right to reparation. However, the issue here is whether those mechanisms are compulsory and the State claiming a right to reparation may unilaterally set them in motion. 22   ICC, No: ICC-01/04-01/06, 7 August 2012, Decision establishing the principles and procedures to be applied to reparations, para 185.

6 Why Justice and Human Rights Require Cosmopolitan International Economic Law ERNST-ULRICH PETERSMANN

P

ROFESSOR FRANCIONI’S APPROACH to academic teaching, research and legal practice has been inspired by the statutory goals of the United Nations Educational, Scientific and Cultural Organization (UNESCO), for which he served as a representative of Italy: ‘since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed’. In the Law Department of the European University Institute, the intellectual challenge of Francesco’s seminars reflected his efforts at ‘mainstreaming human rights’ into other fields of international law, like cultural heritage law, biotechnology law, humanitarian, environmental and international economic law (IEL). Francesco’s ‘Renaissance personality’ cultivating his Florentine origins and traditions of humanism – as illustrated by Francesco’s references to the ‘Platonic Academy’ in Florence during the Renaissance and to Pico della Mirandola’s Oration on the dignity of man founded on individual freedom – conveyed to his academic colleagues and doctoral researchers another ‘credo’ from the UNESCO Constitution: ‘the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man’. As Francesco personified why culture and justice are the essence of human life, this contribution to the book honouring Francesco explores some of the relationships between justice and human rights in IEL. When we co-taught doctoral seminars on Human Rights and IEL at the EUI, Francesco and I proceeded not only from the positive law requirement that human rights are a relevant context for interpreting and designing IEL; we also shared a moral duty to explore to what extent modern IEL remains justifiable by principles of justice. As both Francesco and myself had devoted our academic and professional lives to combining academic teaching with reforming international law as legal advisors in national and international rule-making and dispute settlement, we both

118  Ernst-Ulrich Petersmann criticized the prevailing ‘Westphalian practices’ of disregarding the customary law requirement – as codified in the Preamble and Article 31 of the Vienna Convention on the Law of Treaties (VCLT) as well as in the UN Charter (eg Article 1) – of interpreting treaties and settling related disputes in conformity with human rights and other ‘principles of justice’. My own publications argue long since that the human rights obligations of all UN Member States require recognizing – in the international regulation of the global division of labour – producers, investors, traders and consumers no longer merely as objects of ‘international law among sovereign states’ but also as legal subjects of IEL and ‘democratic principals’ of all governance institutions. Under what conditions should ‘courts of justice’ recognize individuals and other, non-governmental economic actors as legal subjects of human rights law (HRL) and IEL if international ‘primary rules’ were drafted by governments in terms of their own rights and reciprocal obligations without explicitly recognizing citizens as being entitled to invoke the ‘secondary obligations’ of States in relation to cessation of illegal acts and reparation of injury caused by violations of international law?1 This contribution discusses six diverse conceptions of justice in IEL. The main proposition is that the human rights obligations of all UN Member States and their corresponding duties to protect human rights also in international economic cooperation among citizens justify legal presumptions that – as recognized in European economic and international investment law – international guarantees of economic freedoms and transnational rule of law must be interpreted as protecting the rights not only of governments (as agents with limited, delegated rights) but also of citizens as ‘primary legal subjects’ of IEL and of ‘inalienable’ human rights. This includes – as recognized in Article 28 of the Universal Declaration of Human Rights (UDHR) – their rights ‘to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized’. As many IEL rules reflect the public and private self-interests of ‘Westphalian rulers’ (eg in limiting their democratic and legal accountability for welfare-reducing governance failures vis-à-vis adversely affected citizens) and run counter to the emancipatory functions of HRL requiring constitutional protection of the common, reasonable self-interests of citizens, the necessary reforms of IEL require critical review of its power-oriented ‘Westphalian foundations’ and frequent ‘governance failures’ to protect human rights. 1   The ICJ judgment in LaGrand (Germany v USA), Merits, 27 June 2001, ICJ Reports 2001, and the jurisprudence of European courts offer examples for judicial recognition of individuals as ultimate beneficiaries and holders of international rights negotiated by governments on behalf of their citizens. The International Law Commission’s codification of the rules on state responsibility is explicitly ‘without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State’ (Article 33(2)); cf Crawford J, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries (Cambridge, 2002) 209 ff.

  Cosmopolitan International Economic Law  119 I.  ‘CONSTITUTIONAL JUSTICE’ IN DISPUTE SETTLEMENT: NEED FOR ‘CONSTITUTIONAL INTERPRETATION’ OF ‘RULES OF RECOGNITION’

Questions of justice arise in social conflicts, for instance if citizens claim conflicting rights or request the elimination of arbitrary distinctions and the fair settlement of their disputes on the basis of ‘just principles’ and ‘fair procedures’ reviewing and ‘balancing’ competing claims and justifying the final judgment. In view of the conflicts of interests and limited reasonableness of individuals, theories of justice and HRL emphasize the need for justifying governmental restrictions of equal freedoms on the basis of impartial ‘principles of justice’ which reasonable citizens can voluntarily accept,2 for example in constitutional deliberations behind a ‘veil of uncertainty’, in judicial ‘administration of justice’, and in democratic discourse among free and equal citizens searching for principles protecting their common long-term interests. The fact that HRL and IEL continue to fail to protect access of more than two billion people to essential social goods (like human rights, rule of law, water, sanitation, food and essential medicines at affordable prices) shows that international law in the twentyfirst century remains confronted with systemic injustices. It also illustrates why ‘Westphalian principles’ focusing on ‘sovereign equality of states’ – rather than on the moral equality and equal rights of individuals – remain political rather than moral principles. As only individuals and people – but not States – have moral rights, the ‘public interest’ to be protected by national and international law in the twenty-first century must be justified in terms of the common self-interests of reasonable citizens and democratic people rather than in terms of ‘state interests’. Human rights and constitutional democracy derive their legitimacy from protecting equal freedoms of citizens as ‘first principle of justice’ ( J Rawls). The more individual and social welfare depend on global division of labour, the more citizens have reasons to insist that their freedoms to engage in international division of labour must be legally and judicially protected as individual rights unless democratic parliaments have overriding reasons to limit such cosmopolitan rights in order to protect non-economic citizen interests.3 Similar to constitutional democracies treating citizens as legal subjects entitled to constitutional and judicial justification of all governmental restrictions (cf Articles 1, 2, 19 of the German Basic Law), modern HRL justifies interpreting international trade and investment 2   Cf Forst R, The Right to Justification. Elements of a Constructivist Theory of Justice (New York, 2012). 3   For an explanation of why reasonable citizens would agree on maximum equal freedoms as ‘first principle of justice’ in order to obtain more rather than less ‘primary social goods’ (like rights, freedoms of exchange, income opportunities), subject to ‘difference principles’ limiting individual risks, see Rawls J, A Theory of Justice (Oxford, 1973) 78 ff.

120  Ernst-Ulrich Petersmann agreements not only in terms of rights of governments but also as guarantees of equal freedoms and rights of citizens unless there are overriding non-economic public interests justifying legal limitations of ‘normative individualism’. The ‘constitutional function’ of individual rights is to empower and protect equal freedoms of individuals, participatory democracy and ‘public reason’ against arbitrary, majoritarian restrictions and other abuses of power, for instance by protecting inclusive, democratic rulemaking and individual remedies of judicial review of unnecessary or disproportionate restrictions of individual freedoms. This ‘constitutional function’ of individual rights entails that their ‘recognition’ depends on ‘constitutional interpretation’ and ‘public reason’ of citizens – as determined by democratic constitutions, legislation and ‘courts of justice’ – rather than on the will of ‘Westphalian rulers’; as emphasized by the German Constitutional Court and by other European courts, all addressees of governmental restrictions and other adversely affected citizens have a constitutional right to reasonable justification and independent judicial review of such restrictions.4 Even if non-inclusive rulemaking prompted the rulers to focus only on their own rights and reciprocal obligations without acknowledging their legal accountability towards citizens, constitutional democracies and courts of justice should protect ‘constitutional justice’ for the benefit of adversely affected citizens and their rights to judicial review of harmful restrictions of equal freedoms. The need for peaceful settlement of disputes and for judicial remedies based on principles of procedural, distributive, corrective, commutative justice and equity is today more recognized in regional HRL and IEL than in most other areas of international law. The EU Charter of Fundamental Rights protects civil, political, economic and social fundamental rights also vis-à-vis multilevel economic governance, including transnational market freedoms and freedoms of profession in conformity with rule of law (cf Articles 15 and 16). Post-colonial IEL also includes ‘principles of transitional justice’ (eg in Part IV of the General Agreement on Tariffs and Trade (GATT)). As inside national legal systems prior to their ‘democratization’, the lack of adequate rights and judicial remedies of individuals in worldwide IEL remains the main reason for the inadequate legal accountability and failures of governments to limit their welfare-reducing ‘Westphalian power politics’ and collusion with vested interest groups (like domestic banks, import-competing producers) in intergovernmental economic regulation. Constitutional theories of justice suggest that – in order to protect human rights and other public goods more effectively – the human rights obligations of all governance institutions in the twentyfirst century require interpreting also international ‘rules of recognition’ 4   On this constitutional jurisprudence and the underlying ‘Schutznormtheorie’ see eg Herrmann C, Währungshoheit, Währungsverfassung und Subjektive Rechte (Tübingen, 2010) 282 ff.

  Cosmopolitan International Economic Law  121 (eg as codified in Article 38 of the Statute of the International Court of Justice (ICJ)) in conformity with human and constitutional rights for the benefit of citizens, as practiced by national and European courts in the 31 Member States of the European Economic Area (EEA).5 II.  INADEQUATE PROTECTION OF THE DIFFERENT ‘SPHERES OF JUSTICE’ IN MULTILEVEL ECONOMIC ADJUDICATION

Impartial protection by independent judges of equal rights of citizens to due process of law and ‘rule of law’ – as a constitutional restraint on the ‘rule by men’ – is the oldest legal paradigm of ‘constitutional justice’. Access to justice is increasingly recognized in constitutional law and HRL as a human right to justification and judicial review of governmental restrictions of equal freedoms.6 Judicial administration of justice treating the parties to the dispute in an equal manner is part of a broader ideal of ‘constitutional justice’ requiring institutionalization and protection of human rights through constitutional, legislative, administrative and also international rules and institutions. The ICJ has acknowledged that: Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable.7Equity as a legal concept is a direct emanation of the idea of justice. The Court whose task is by definition to administer justice is bound to apply it.8

Yet, since individuals and non-governmental organizations have no direct access to the ICJ, the latter continues to be more reluctant than European courts to acknowledge that international rules addressed to States must be construed and applied also for the benefit of citizens and their individual rights: [T]he fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in compliance with the obligations thus laid down (see Case 43/75 Defrenne v. Sabena [1976] ECR 455, par. 31). Such consideration must, a fortiori, be applicable to Article 48 of the Treaty, which . . . is designed to ensure that there is no discrimination on the labour market.9

Due to their ‘Westphalian focus’ on reciprocal rights and obligations of States and governments, the Bretton Woods Agreements, GATT 1947, the 5   On the need for ‘cosmopolitan IEL’ see: Petersmann EU, International Economic Law in the 21st Century. Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (Oxford, 2012). 6   Cf Francioni F (ed), Access to Justice as a Human Right (Oxford, 2007). 7  ICJ, North Sea Continental Shelf, Judgment of 20 February 1969, ICJ Reports 1969, 48–49, para 88. 8  ICJ, Continental Shelf (Tunisia v Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, 60, para 71. 9   ECJ, Case C-281/98 Angonese [2000] ECR I-4139, 6 June 2000.

122  Ernst-Ulrich Petersmann World Trade Organization (WTO) Agreement and most other worldwide economic agreements include no explicit references to human rights and general consumer welfare. Their dispute settlement procedures regulate the settlement of disputes among States based on principles of distributive and corrective justice (eg in case of GATT/WTO violation complaints), commutative justice (eg in case of GATT/WTO ‘non-violation complaints’) and principles of equity (eg in case of GATT/WTO ‘situation complaints’ based on principles of equity). Treaty guarantees of individual remedies in domestic courts (eg pursuant to Article X GATT) and transnational arbitration (eg pursuant to the WTO Agreement on Preshipment Inspection) remain exceptional and often without individual rights to invoke and enforce the international treaty obligations of governments in domestic courts (as provided for in Article XX of the WTO Agreement on Government Procurement). This intergovernmental treatment of citizens as mere objects of IEL – eg without rights of citizens to invoke and enforce international guarantees of equal freedoms and rule of law in domestic courts – and the frequent lack of cooperation among national and international courts in protecting transnational rule of law for the benefit of citizens reflect pre-democratic ‘Westphalian conceptions’ of ‘international law among sovereign states’. In order to protect their foreign policy discretion and limit their legal and judicial accountability towards citizens, governments often encourage this lack of cooperation among national and international courts and their frequent disregard for the ‘consistent interpretation principle’ underlying both national and international legal systems. The legal and institutional separation of UN HRL and worldwide IEL impedes judicial interpretation and application of HRL, IEL and principles of justice in mutually supportive ways, for instance by interpreting treaty obligations of ‘strict compliance with international law’ (Article 3 Treaty on European Union (TEU)) and ‘providing security and predictability to the multilateral trading system’ (Article 3 Dispute Settlement Understanding (DSU)) as justifying domestic judicial review of treaty violations adversely affecting individual rights. The ‘path-dependent’ judicial deference to ‘state sovereignty’ – rather than to ‘popular’ and ‘individual sovereignty’ based on human rights – facilitates the ubiquity of power-oriented ‘market failures’ and ‘governance failures’ in multilevel economic regulation to the detriment of the equal rights of citizens and their consumer welfare. III.  JUSTICE IN IEL AS EFFICIENCY AND MAXIMIZATION OF UTILITY?

The Bretton-Woods Agreements, GATT/WTO law and many other areas of IEL outside Europe are based on utilitarian principles of economic

  Cosmopolitan International Economic Law  123 efficiency aimed at enhancing ‘total national welfare’ and the capacity of national governments of raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development’ (WTO Preamble).

For instance, GATT/WTO law ranks trade policy instruments and subsidies according to their respective economic efficiency by allowing use of non-discriminatory product and production regulations, production subsidies and ‘unbound’ tariffs; it legally limits the imposition of tariffs in excess of market access commitments and prohibits welfare-reducing, discriminatory non-tariff trade barriers, ‘unnecessary’ technical regulations and sanitary standards, and trade-distorting subsidies. Yet, in contrast to European economic law committed to a ‘highly competitive social market economy’ within ‘an area of freedom, security and justice’ (Article 3 TEU) protecting individual rights in all 31 EEA Member States, the prevailing utilitarian conceptions of worldwide IEL do not effectively protect general ‘consumer welfare’ against redistribution of domestic income in favour of powerful producer interests (‘producer welfare’). Even though social and individual welfare (eg in terms of health, education, democratic self-government) cannot be inferred from measuring national income, ‘utilitarians’ neglect this impossibility of measuring, comparing and maximizing all human preferences, values and other forms of happiness (‘utilities’) on a single scale. Also definitions of ‘utility’ in terms of equal opportunities for satisfying individual desires (eg in the market place) tend to treat citizens as objects, for instance by neglecting human rights whenever restrictive business practices or emergency situations price out poor people from access to water, essential food and medical services. Likewise, ‘maximizing happiness’ by governmental redistribution of the ‘gains from trade’ at the whim of the rulers fails to recognize individuals as legal subjects of human rights. IV.  JUSTICE IN IEL AS LIBERTARIAN FREEDOM AND SELF-OWNERSHIP?

From ancient Greek, Roman and Italian republicanism up to the human rights revolutions during the eighteenth century, the republican ideal of freedom and self-government of citizens for the common good (res publica) was linked to the idea of not being subject to anyone’s domination: citizen rights to freedom, ownership of the public goods and collective self-determination and control of the government (as agent with limited

124  Ernst-Ulrich Petersmann powers delegated by the citizens as the principals) were often limited to male property-owners who did not depend on the goodwill of others and were not subject to anyone’s domination.10 Commercial law, arbitration and the ‘merchant republics’ during the Italian Renaissance were likewise shaped by libertarian claims that personal self-ownership of one’s body, labour, ‘fruits of labour’, property rights, investments, freedom of contract and other ‘market freedoms’ must be legally protected against government interferences provided economic transactions were based on ‘justice in initial holdings’ and ‘justice in transfers’.11 Mercantilist policies and IEL were influenced by power-oriented colonialism, imperialism and the evolution of some trading countries (like England, Portugal and Spain) into powerful hegemons protecting their foreign investments abroad by subjecting other countries to colonial and imperial exploitation and welfare-reducing trade barriers. Modern economic theory and theories of justice emphasize that the welfare of people depends on reasonable rules, institutions and ‘human resources’ rather than on natural resources. Hence, the fact that some resource-poor countries (like Hong Kong, Singapore, Switzerland) have become rich and industrialized, whereas some resource-rich countries remain less-developed (like many lessdeveloped countries in Africa), can be explained in terms of their respective legal systems for protecting economic freedoms, property rights and other legal preconditions of a welfare-enhancing division of labour. Yet, in the twenty-first century, libertarian claims to unrestricted self-ownership (eg, to sell one’s body parts), freedom of voluntary exchange (eg, for outsourcing pregnancy for pay) and compensation for ‘regulatory takings’ of foreign investor rights, like libertarian opposition to governmental taxation for financing the supply of public goods, risk being inconsistent with HRL and constitutional democracy: economic freedoms and property rights must be reconciled and ‘balanced’ with all other constitutional rights. Libertarianism offers neither a coherent theory for ‘deliberative democracy’ based on inclusive, public discussion nor for multilevel governance limiting ‘harmful externalities’ of national policies (eg in terms of pollution of the environment) and protecting reasonable, common citizen interests in interdependent ‘aggregate public goods’ such as efficient monetary, trading, financial and rule-of-law systems enabling mutually beneficial international division of labour.

  Cf Pettit P, Republicanism. A Theory of Freedom and Government (Oxford, 1997).   Cf Nozick R, Anarchy, State and Utopia (Oxford, 1974).

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  Cosmopolitan International Economic Law  125 V.  DOES JUSTICE IN IEL REQUIRE PRIORITY OF HUMAN AND CONSTITUTIONAL RIGHTS OVER THE COMMON GOOD?

Utilitarian inference of moral and legal principles from satisfaction of human desires, like libertarian derivation of moral and legal claims from ‘freedom as non-domination’, privilege the powerful and leave the rights of weaker persons vulnerable. Constitutional theory explains why ‘market freedoms’ and mutually beneficial, voluntary market transactions should be justified on moral grounds rather than only by libertarian and utilitarian ‘instrumental rationality’, for instance as integral parts of constitutional contracts among reasonable citizens whose discursive and social nature requires social cooperation among free and equal citizens for realizing their existential autonomy and professional self-realization. Social discourse, constitutional contracts and market transactions – even if they are part of the empirical, sensible world subject to heteronomous ‘laws of nature’ – are reasonable only to the extent that the discourse partners recognize each other as free and equal participants in their discursive search for truth.12 Human rights also require taking into account the diverse ‘contexts of justice’ (eg the different dimensions of human autonomy rights) in international economic regulation, such as: • private freedoms of citizens (eg freedoms of association) to define and develop one’s individual identity in private communities with due respect for the legitimate diversity of individual and social conceptions of a ‘good life’; • private freedoms of all members of global humanity (eg respect for, and protection of, ‘inalienable’ and ‘indivisible’ human rights and other moral ‘principles of justice’) in their relationships with other human beings inside and beyond States; • legal freedoms of citizens to equal treatment and participation in legal communities, including ‘negative freedoms’ from unjustified government restrictions and ‘positive freedoms’ of participation and development of one’s human capacities; • political freedoms of citizens to participate as co-authors of democratic legislation in the democratic exercise of national governance powers; • cosmopolitan freedoms of citizens (eg in their roles as producers, investors, traders and consumers cooperating in the global division of labour) to be recognized and legally protected as ‘world citizens’ in national and 12   On discourse theory – and the implicit, moral respect of discourse partners as having reasonable autonomy and dignity – as justifications of human rights ‘without metaphysics’ see: Alexy R, ‘Menschenrechte ohne Metaphysik?’ (2004) Deutsche Zeitschrift für Philosophie 15–24. For a comparison of the moral Kantian and constitutional Rawlsian justifications of principles of justice, human rights and hypothetical ‘social contracts’ see, eg: Sandel MJ, Justice. What’s the Right Thing to Do? (New York, 2009) chs 5 and 6.

126  Ernst-Ulrich Petersmann international law in order to be able to exercise their collective responsibility for jointly supplying transnational public goods, including entitlement ‘to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’ (Article 28 UDHR).13 Contrary to utilitarian conceptions of individuals as being ‘the slaves of our desires’ and libertarian acceptance of many people remaining subject to domination by others, human rights require respecting the human capacity of reasonable autonomy (‘dignity’), the ‘inalienable birth rights’ and freedoms of choice of every human being. European economic law protects and enforces the common market freedoms among the 31 EEA Member States as fundamental, cosmopolitan rights that must be exercised in conformity with all human rights. Whereas John Locke invoked god for justifying human rights, UN and European HRL derives human rights from respect for human autonomy and reasonableness. Kantian, Rawlsian and other modern theories of justice (eg, by R Dworkin and B Ackerman)14 explain why moral respect for reasonable autonomy requires the priority of equal liberty rights (as ‘first principle of justice’) over particular conceptions of the ‘good life’ and the ‘common good’. According to both Kant and Rawls, a just society protects the equal freedoms of its citizens to pursue their own, often diverse conceptions for a good life – provided such conceptions remain compatible with equal freedoms for all – without imposing any particular conception of a good life. European economic law protects cosmopolitan rights comprehensively both as economic ‘market freedoms’, as well as non-economic constitutional rights requiring reconciliation through legal and judicial ‘balancing’. Arguably, Kantian multilevel ‘cosmopolitan constitutionalism’ is not only morally, but also legally necessary for protecting ‘cosmopolitan public reason’ and transnational ‘public goods’ on the basis of cosmopolitan rights of citizens in a globally integrating world.15 Kant justified this ‘priority of the right’ over particular conceptions of the good by what Kant called ‘the supremacy of the moral law’.16 In order to protect ‘constitutional justice’ guaranteeing equal freedoms on the basis 13   The different private, legal and political ‘contexts of justice’ in particular communities, and of moral and cosmopolitan principles in the world community of human beings, have been recognized in human rights declarations since the Déclaration des droits de l’homme et du citoyen of 1789; cf Forst R, Contexts of Justice: Political Philosophy beyond Liberalism and Communitarianism (Berkeley, 2002). 14   Cf Dworkin R, Taking Rights Seriously (London, 1977); Ackerman B, Social Justice in the Liberal State (New Haven, 1980). 15   Cf Petersmann EU (n 5) chs III and VIII. 16   Cf Kant I, ‘On the Common Saying: This May be True in Theory, but it does not Apply in Practice’ in Reiss H (ed), Kant. Political Writings (Cambridge, 1991) 61 ff, 73: the right is ‘derived entirely from the concept of freedom in the external relationships of human beings, and has nothing to do with the end (i.e. the aim of achieving happiness) or with the recognized means of attaining this end. And thus the latter end must on no account interfere as a determinant with the laws governing external rights’.

  Cosmopolitan International Economic Law  127 of an autonomous, categorical foundation independent from the heteronomous, hypothetical particular inclinations and ends pursued by individuals, Kant justified constitutional protection of equal freedoms in all national, transnational and international human interactions as being based on a self-imposed, moral duty of all human beings to respect and protect reasonable human autonomy and equal freedoms.17 Rawls justified ‘justice as the first virtue of social institutions’ – and equal basic freedoms as ‘first principle of justice’ prior to the good – by a procedural interpretation of the ‘categorical imperative’: Reasonable persons choosing principles of justice in an ‘original position’ – ie before knowing which particular persons (eg, rich or poor, strong or weak) they will be in social life – would prioritize as most essential to our personhood principles that do not presuppose any particular ends (like the human capacity to choose) over the choice of particular ends; hence, they would ‘view the right as prior’.18 Arguably, regardless of moral and philosophical theories and conceptions of human agents and their ‘individual sovereignty’, the universal recognition of human rights (eg, in UN HRL) as a constitutional foundation of all governance powers confirms this legal priority of equal human freedoms as an integral part of positive, national and international legal systems in the twenty-first century. Contrary to Kantian and Rawlsian justifications of ‘principles of justice’ through ‘thought experiments’, democratic discourse theories (eg Habermas’ theory of communicative rationality in the public sphere) are devoted to protecting – in cooperation with social analyses of speaking, reason-giving, understanding, judging and acting on the basis of ‘validityclaims’ (eg of sincerity, rightness and truth of ‘speech acts’) – the ‘validity basis’ of social orders, for instance through legal and democratic protection of ‘ideal speech situations’ revealing the human potential for reason, emancipation and rational-critical communication in democratic institutions.19 17   ‘When we think of ourselves as free, we transfer ourselves into the intelligible world as members and recognize the autonomy of the will’, Kant I, Groundwork of the Metaphysics of Morals (translated by Paton HJ (New York, 1956)121. Just as such ‘transcendental subjects’ participating in ‘pure, practical reason’ perceive themselves as being capable of autonomous freedom (in a transcendental intelligible world) independent from heteronomous experiences and prior to choosing particular conceptions of a good life (in the sensible world governed by the laws of nature and human inclinations), so must autonomous rights be prior to heteronomous choices of the good; societies must be legally governed by equal constitutional freedoms protecting equal freedoms of choice of particular conceptions of the good. Kant’s ‘pure practical reason which legislates a priori, regardless of all empirical ends’ (Kant I (n 16) 73) must be distinguished from instrumental rationality in human actions governed by sentiments and ‘hypothetical imperatives’ pursuing particular ends (in contrast to ‘categorical imperatives’ treating persons as ends and acting on maxims that could become ‘universal laws’). 18   Rawls J (n 3) 560. Rawls describes his two principles of justice as being based on ideas of liberty, equality, reward for services contributing to the common good, and limitation of risks through ‘difference principles’ protecting the least-advantaged. 19   On democratic discourse justifications of cosmopolitan rights and ‘public reason’ see, eg, Habermas J, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, 1996).

128  Ernst-Ulrich Petersmann Yet, it remains contested among constitutional, majoritarian and non-liberal democracies to what extent the moral and legal ‘priority of right over the good’ constitutionally limits majoritarian legislation to protect agreed ‘common goods’. For instance, should the Rawlsian ‘difference principle’ protecting the least advantaged people in society be constitutionally justified by human rights rather than merely by utilitarian arguments of sharing common resources as a kind of insurance against future risks of life?20 Was it lawful, in the case of the ‘sovereign default’ of Iceland in 2008, that the Icelandic people and Government prioritized the legal and financial protection of the property claims of Icelanders over those of foreign creditors of Icelandic banks? In contrast to Anglo-Saxon conceptions of civil and polit­ ical constitutional rights as ‘trumping’ in case of conflicts with democratic majority legislation, European courts acknowledge that legislative and administrative restrictions of human rights may be aimed at protecting other constitutional rights and require ‘balancing’ of competing rights in order to establish whether governmental restrictions were suitable, necessary and proportionate means reconciling competing human or constitutional rights in reasonable procedures.21 VI.  JUSTICE IN IEL AS COMMUNITARIAN DEMOCRACY IN A GLOBAL ECONOMY?

As individuals are born and grow up in social communities and their individual control over the forces governing individual lives is diminishing with ‘globalization’, liberal conceptions of individuals as ‘freely choosing, unencumbered selves’ are criticized from communitarian perspectives.22 Even if individual consent to ‘social contracts’ and agreements may reflect ideals of autonomy and reciprocity, the mere fact of an agreement does not prove its fairness, for instance if consent to the agreement was due to unequal bargaining power and information asymmetries. The moral and legal ‘human rights imperative’ of treating all persons as ends in themselves and as reasonable ‘principals’ of governments with limited, delegated powers justifies conceptions of democratic self-governance and 20   As Rawls considered the distribution of human talents by which some get more and others get less as being arbitrary from a moral point of view, he proposed to regard these talents as common assets that must also benefit the least advantaged, cf Rawls (n 3) 101 f: ‘Those who have been favoured by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. . . . In justice as fairness, men agree to share one another’s fate.’ 21   For comparative studies of the different American and European judicial standards of reviewing economic legislative and administrative acts see: Petersmann EU (n 5), chs III and VIII. 22   For a criticism of liberal conceptions of human persons and of their ‘moral autonomy’ from a communitarian perspective see, eg: Sandel MJ, Liberalism and the Limits of Justice (Cambridge, 1982).

  Cosmopolitan International Economic Law  129 communitarian supply of public goods that go far beyond republican conceptions of common ownership of public goods (res publica) by propertyowning citizens contributing to the republican institutions. The less national constitutions and democracies remain capable of protecting international public goods demanded by citizens, the stronger becomes the democratic need for limiting ‘intergovernmental governance failures’ undermining national democracies through new forms of ‘cosmopolitan democracy’ based on ‘cosmopolitan constitutionalism’ protecting transnational communities of citizens and their reasonable self-interests in stronger protection of cosmopolitan rights and other international public goods.23 HRL and democracy limit not only libertarian claims of ‘self-ownership’ of one’s body, labour and ‘fruits of labour’ (eg, if they neglect human dignity and other human rights limiting market freedoms) as well as libertarian opposition to redistribution of ‘market outcomes’ based on market transactions respecting ‘justice in holdings’ and ‘justice in transfers’ (R Nozick). Human rights and democracy must also be protected if they give rise to conflicts and contestation reducing the ‘utilitarian efficiency’ of regulation, for instance if utilitarian conceptions of IEL neglect human rights by treating some individuals as means for the happiness of others and ignore general consumer welfare by one-sidedly prioritizing ‘producer welfare’. In view of the unlimited demand of citizens for scarce goods and resources, constitutional and democratic procedures for legislative, administrative, judicial, national as well as international supply of ‘public goods’ must inevitably resort to majority decisions that must reconcile and ‘balance’ competing civil, political, economic, social and cultural human rights. HRL also protects individual and democratic diversity and requires respect for reasonable ‘constitutional pluralism’, for instance in ‘majoritarian democracies’ with constitutional traditions of more limited judicial review of democratic legislation. Even though most UN Member States have adopted written national constitutions protecting human rights, the lack of constitutional documents in some democracies (like England and Israel) has not prevented effective protection of human rights limiting the potential tyranny of majoritarian democracies. HRL increasingly limits traditions of ‘procedural democracy’ based on ‘parliamentary sovereignty’ by obligations under international law to protect cosmopolitan rights, transnational rule of law and review by international courts of legislative, administrative and judicial acts with harmful ‘externalities’. The inevitable tensions between human rights, majoritarian democracy and multilevel governance of interdependent public goods 23   Cf Petersmann EU (ed), ‘Multilevel Governance of Interdependent Public Goods: Theories, Rules and Institutions for the Central Policy Challenge in the 21st Century’ (RSCAS Working Paper 2012/23, Florence, 2012).

130  Ernst-Ulrich Petersmann must be limited by ‘multilevel constitutional restraints’, as increasingly recognized in regional HRL, IEL, related multilevel governance and judicial institutions. VII.  HUMAN RIGHTS REQUIRE COSMOPOLITAN CONCEPTIONS OF IEL INSTITUTIONALIZING ‘COSMOPOLITAN PUBLIC REASON’

In spite of Kant’s justification of multilevel ‘cosmopolitan constitutionalism’ as being morally necessary for protecting equal freedoms in all human interactions at national, transnational and international levels, the historical evolution of constitutionalism, HRL and IEL remains replete with ‘democratic discourse failures’ and ‘governance failures’ in supplying and protecting international public goods. The reasonable self-interests of citizens in continuing their ‘enlightenment project’ call for legal protection of their ‘emancipatory interests’ through cosmopolitan ‘access rights’ to international public goods (like the world trading and rule-oflaw system protected by WTO law and regional trade agreements) and to related judicial remedies against welfare-reducing violations of inter­ national public goods regimes. The more ‘globalization’ transforms national into transnational public goods whose protection depends on international rules and institutions, the more HRL requires citizens as ‘democratic principals’ to assume democratic control and responsibility of transnational governance powers and of their ‘cosmopolitan property’ of international public goods (res publica). Stronger multilevel protection of cosmopolitan rights to private and democratic self-governance in mutually beneficial, international cooperation requires re-interpreting the ‘rules of recognition’ of international legal systems for the benefit of citizens and their constitutional rights so as to promote transnational participatory and ‘deliberative democracy’ based on ‘cosmopolitan public reason’ rather than on Westphalian power politics. The more UN and WTO institutions fail to limit the ubiquity of ‘market failures’ and ‘governance failures’ in the global economy and governments continue excluding citizens from their ‘international law among states’, the stronger becomes the need for challenging ‘Westphalian disorder’ through more inclusive forms of ‘cosmopolitan democracy’ based on cosmopolitan rights. The rights-based evolution of European common market law illustrates how individual ‘access to justice’ in regional HRL and IEL can empower civil society and courts of justice to protect transnational public goods for the benefit of citizens and of their cosmopolitan rights based on mutually ‘consistent interpretations’ of multilevel regulation in conformity with cosmopolitan constitutionalism.24   Cf Petersmann EU (n 5) chs III and IV.

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  Cosmopolitan International Economic Law  131 European economic integration also confirms the Kantian expectation that mutually beneficial trade based on ever more precise, legal clarification of equal freedoms, cosmopolitan rights and remedies contributes to institutionalizing ‘public peace’ by limiting the ‘unsocial sociability’ of rational egoists. Rawls has explained why institutionalizing ‘public reason’ limiting human rivalry and protecting rule of law in social cooperation requires a ‘four stage sequence’ of constitutional, legislative, executive and judicial rulemaking and institutions protecting an ‘overlapping consensus’ on ‘principles of justice’ and rule of law among citizens and governments with often conflicting value preferences and self-interests.25 Empirical evidence confirms that rights-based IEL regimes – like the common market law of the EU and EEA Agreements, regional free trade areas (eg chapters XI and XIX of the North American Free Trade Agreement (NAFTA) and investment treaties protecting individual rights and judicial remedies – tend to protect more effectively the rights of citizens, their consumer welfare and mutually beneficial cooperation across frontiers based on transnational rule of law than the prevailing ‘Hobbesian conceptions’ of ‘international law among states’ denying citizens individual rights to enforce international rules in domestic courts in order to protect trans­ national rule of law for the benefit of producers, traders, investors and consumers.26 The free movement of persons and ‘EU citizenship rights’ inside the EU illustrate that cosmopolitan rights can broaden and enrich, rather than undermine, communitarian conceptions of a just and diverse society and of a good life embedded into social solidarity. The history of many EU Member States (like Germany) illustrates why democratic and cosmopolitan culture is essential for preserving other dimensions of culture (which did not prevent dictatorship and genocide in Nazi-Germany). In contrast to Rawls’ nationalist refusal to extend his principles of justice for a constitutional democracy to an international Law of Peoples,27 globalization renders cosmopolitan rights and cosmopolitan IEL ever more important for empowering citizens to assume their individual and democratic responsibilities for protecting social welfare and ‘democratic peace’ across frontiers. As illustrated by the unnecessary poverty of so many people in less-developed countries, the prevailing ‘Westphalian conceptions’ of ‘international law among sovereign states’ fail to protect citizens against widespread abuses of foreign policy powers and undersupply of international public goods. Diplomatic insistence on ‘memberdriven governance’ (eg, in the Bretton Woods institutions, GATT and the WTO) reflects pre-democratic claims that, once the people have conferred powers to the rulers, citizens have surrendered their authority rather than 25   On the ‘four-stage sequence’ of legitimate rulemaking inside constitutional democracies like the US, see Rawls J (n 3) 195 ff. 26   Cf Petersmann EU (n 5) 145 ff. 27   Cf Rawls J, Law of Peoples (Cambridge, 1999).

132  Ernst-Ulrich Petersmann remaining ‘democratic principals’ and holders of ‘inalienable rights’ to individual and democratic self-government protected by rule of law. The more globalization transforms national constitutions into ‘partial constitutions’ that cannot unilaterally protect transnational ‘aggregate public goods’ (like mutually beneficial monetary, trade, financial, environmental and rule of law systems composed of national public goods), the more citizen welfare and effective protection of economic rights beyond state borders require ‘cosmopolitan constitutionalism’ based on human rights, democratic self-governance and transnational rule of law rather than only on state consent.28 As universally acknowledged already in Article 28 UDHR (1948), stronger protection of economic welfare and human rights of billions of citizens in today’s globally integrated world economy depends on whether IEL will succeed in regulating the ‘collective action problems’ of a mutually beneficial world trading, financial, environment and development system more effectively for the benefit of citizens and their cosmopolitan rights. VIII.  CONSTITUTIONAL LIMITS OF MULTILEVEL DEMOCRATIC GOVERNANCE IN IEL: DEMOCRATIZING THE ‘EURO’?

European economic integration operates like a ‘laboratory’ for new forms of multilevel protection of international public goods, notably in those areas (like the rules-based common market among 31 EEA member countries) where cosmopolitan rights of the more than 500 million EU and EEA citizens were legally and judicially protected by national, EU and EEA institutions cooperating in multilevel protection of rule of law. In other areas with less effective judicial protection of individual rights (like the common commercial, agricultural and monetary policies), EU institutions and EU Member States engaged in systemic violations of the EU treaty obligations of ‘strict observance of international law’ (Article 3 TEU) and of the fiscal, debt and economic convergence disciplines in the Lisbon Treaty. As illustrated by more than 40 GATT and WTO dispute settlement findings of illegal trade protection by EU institutions in their common agricultural and commercial policies, the political and judicial EU institutions often colluded in accommodating protectionist interest group pressures for redistributing domestic income through arbitrary violations of the GATT/WTO obligations of the EU. The systemic violations of the fiscal and debt disciplines of the Lisbon Treaty by 23 of the 28 EU Member States confirm that ‘aggregate public goods’ (like monetary stability in the EU’s common market) cannot be effectively protected without cosmopolitan rights (like the ‘common market freedoms’ and competition rules   Cf Petersmann EU (n 5) chs III and VII.

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  Cosmopolitan International Economic Law  133 guaranteeing individual rights and judicial remedies of EU citizens) and independent ‘guardians’ (like the EU Commission) identifying regulatory failures, limiting ‘intergovernmental collusion’, and counteracting vested interests in obstructing and distorting multilevel regulation (eg of financial markets). The ever more complex governance of the Euro by the 18 EU member governments (2013) using the Euro as their common currency illustrates that – if rule of law is no longer protected, and citizens can no longer understand the harmful collusion among governments and financial institutions (eg financing governments and their violations of agreed fiscal and debt disciplines through purchases of government bonds in exchange for regular ‘bail-outs’ by national and EU institutions) – democratic self-governance becomes an illusion. In order to remain comprehensible, the inevitable ‘legal fragmentation’ among national and functionally limited transnational legal regimes for the protection of international public goods must remain limited by multilevel legal and judicial cooperation in protecting transnational rule of law and cosmopolitan rights of citizens. Intergovernmental politics asserting powers to violate international rules ratified by parliaments for the benefit of citizens risk becoming incomprehensible for citizens and eluding democratic control. In the European Monetary Union (EMU), for instance, politicians in all 28 EMU Member States have recognized – since their ‘Growth and Stability Pact’ of 1997 – that budget and debt disciplines and economic growth must be pursued simultaneously; but they persistently failed to deliver on their promises of transforming the EU into the most competitive economy. Economists disagree on whether fiscal and monetary demand-expansion should be given temporary priority over the agreed fiscal and debt disciplines and ‘bailout prohibitions’ in EU law; or whether the financial and economic growth problems require focusing on ‘supply side reforms’ (like labour market reforms) rather than on demand stimulus. Lawyers lament that the private and public debt crises reflect a deeper ‘rule of law’ crisis; the ‘spread’ among the interest rates charged for over-indebted Euro-zone countries is seen as a rational response to increased risks of private and public debt defaults (ie breaches of contract law) and persistent violations of the budget and debt disciplines of EU law (eg Article 126 of the Treaty on the Functioning of the European Union (TFEU)). The European Parliament expresses frustration at the fact that the ‘fiscal compact treaty’ of March 2012 was negotiated ‘outside the EU’ as an intergovernmental treaty signed by only 25 EU member governments. Citizens rightly challenge the multilevel governance failures and lack of democratic legitimacy of persistent violations of EU law by most Euro-zone Member States. Supported by judgments of national courts (like the German Constitutional Court) and the European Court of Justice (ECJ), they are increasingly insisting on the constitutional limits of multilevel economic governance inside the EU

134  Ernst-Ulrich Petersmann and on the primarily national competences and parliamentary responsibilities for fiscal, debt, economic and labour market policies in accordance with the ‘subsidiarity principle’ of EU law. EU institutions have proposed a popular election of the EU Commission President in order to strengthen the democratic legitimacy of EU governance, notably in future ‘excessive deficit’, economic policy surveillance and other Euro governance procedures. But should a currency be dem­ ocratized? Can systemic violations of the rule of law be legitimized by popular election of the EU Commission’s President? The governance of the Euro remains characterized by multilevel constitutional restraints, independent central banks, and increasing judicial safeguards at national and EU levels. Empirically, the protection of price stability by the EU central bank system was more successful than economic and fiscal policy coordination or the protection of rule of law by the EU’s political institutions. As only four EMU Member States comply with the fiscal and debt disciplines of the Lisbon Treaty, the Fiscal Compact Treaty of March 2012 has further strengthened judicial remedies vis-à-vis excessive government deficits (Article 8). Both the German Constitutional Court and the ECJ have emphasized the constitutional limits of Euro governance. As the Euro crisis is primarily a crisis of national fiscal, debt, economic, labour market policies and democratic politics in Greece and other Euro countries, additional EU disciplines and conditionality of financial assistance are warranted. But there are also sound economic and political reasons for strengthening ‘checks and balances’ between the separate institutions responsible for taxes and spending and those responsible for money creation. The European Parliament lacks competences for ‘bail-outs’, and its members are better known to many EU citizens for their frivolous financial claims than as guardians of the rule of law in EU governance. Hence, EU citizens have good reason to insist more on strengthening legal accountability and rule of law in financial markets and Euro governance than on ‘democratizing the Euro’. Sartori’s well-known conclusion of his research on democracy – that ‘democracy is a high-flown name for something that does not exist’ – illustrates the increasing discontent over the ever more obvious crises of democratic governance in a globally interdependent world; democracies in the sense of ‘self-government by discussion’ are ‘not viable unless their citizens understand them’ and unless national polities respect rule of law.29 The diverse conceptions of national constitutional, parliamentary, participatory, deliberative and ‘cosmopolitan democracies’ and of multilevel governance in the EU’s demoi-cracy (including 28 national peoples with diverse constitutional identities) illustrate the limits of national democracies and of democratic legitimation of intergovernmental governance at   Sartori G, The Theory of Democracy Revisited: Part One (Chatham, New Jersey, 1987) ix, 7.

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  Cosmopolitan International Economic Law  135 international levels. The more globalization transforms national public goods into international ‘aggregate public goods’ that no single state can unilaterally secure, the more national constitutions must be recognized as ‘partial constitutions’ that can protect ever more international public goods only through international cooperation based on international law and institutions. The successive ‘Euro crises’ since 2010 resulting from persistent governance failures in the national fiscal, debt, economic and labour market policies of Greece, Portugal, Spain, Cyprus and Italy demonstrate not only that EU law – ie the world’s most advanced attempts at protecting inter­ national public goods through multilevel regulation and supranational institutions – has failed to protect citizens against systemic treaty violations by opportunistic national politicians30; the financial politics in Greece, Ireland and other democracies (like Iceland) also confirm that majoritarian democracy no longer offers an adequate blueprint for multilevel protection of international public goods. Economists need to think beyond utilitarianism and heed the advice of Adam Smith that the legitimacy and efficiency of rules-based market economies depend on respect for prin­ ciples of justice like rule of law, subsidiarity and limited delegation of powers. The elaboration of a new ‘cosmopolitan culture’ for ‘civilizing’ and ‘constitutionalizing international law’ depends on promoting participatory, deliberative and ‘cosmopolitan democracy’ insisting on more inclusive, democratic interpretations of the ‘primary rules of conduct’ and ‘secondary rules of recognition, change and adjudication’ of the inter­ national legal system.31 Civil society, democratic institutions and courts of justice must struggle to realize ‘cosmopolitan constitutionalism’ protecting mutually beneficial, transnational economic cooperation among free and equal citizens against the ubiquity of abuses of public and private power. International public goods regimes must be justified and constitutionally limited by ‘cosmopolitan public reason’ and ‘cosmopolitan law’ that is supported by reasonable citizens as ‘democratic principals’ of all governance institutions. As citizens cannot understand themselves as reasonable authors of Westphalian ‘international law among sovereign states’ disregarding cosmopolitan rights and remedies, they have good reasons for challenging ‘Westphalian rules of recognition’ and related government refusals to allow individuals to invoke and enforce international HRL and IEL in domestic courts for the benefit of citizens.

30   Cf Bastasin C, Saving Europe. How National Politics Nearly Destroyed the Euro (Washington, 2012). 31   On legal systems as a union of primary and secondary rules see: Hart HLA, The Concept of Law (Oxford, 1994). On cosmopolitan constitutionalism see Petersmann EU (n 5).

7 Human Rights and Cultural Heritage in International Law ANA FILIPA VRDOLJAK

It has been claimed that culture is central to man and that without it no rights are possible since it is the matrix from which all else must spring. Culture is the essence of being human.1

R

I. INTRODUCTION

EGIONAL AND INTERNATIONAL conflicts defined as a socalled ‘clash of civilisations’,2 civil conflicts from Central and South America, to former Yugoslavia, from North Africa and the Middle East to Southeast Asia,3 and discrimination against and persecution of vulnerable individuals within ethnic or religious communities, appear to indicate tensions between human rights and culture at all levels of society, from the global to the local, from the collective to the individual. Despite the growing cognizance of these divisions, the international community rather than suppressing cultural, ethnic or religious differences, has actively promoted the importance of cultural diversity and religious tolerance for peace and stability and enjoyment of human rights generally. This chapter focuses on cultural diversity as a common good by exploring the relationship between culture and human rights in international law and its possible future development. This emphasis on cultural diversity is encapsulated in a new humanism in which the protection of culture is increasingly conceptualized through the prism of human rights.4 It is manifested in a push for elaborating the   UNESCO, Cultural Rights as Human Rights (Paris, 1970) 10.   See Huntington SP, The Clash of Civilizations and the Remaking of World Order (New York, 1996). 3   Harbom L and Wallensteen P, ‘Armed Conflicts 1946-2009’ (2010) Journal of Peace Research 501 ff. 4   Bokova I, Director-General of UNESCO, ‘A New Humanism for the 21st Century’, 7 October 2010, UNESCO Doc ERI-2010/WS/1 Rev (2010). 1 2

140  Ana Filipa Vrdoljak definition and strengthening the implementation of cultural rights, and access to cultural heritage as integral to the enjoyment of such rights.5 Yet, this connection between human rights and cultural heritage is a recent phenomenon, with the protection of human rights and cultural heritage being relative newcomers to the framers of international legal norms. Whilst certain human rights norms have their precursor in the minority protections of the nineteenth and early twentieth century, the first specialist human rights instrument of universal application was adopted in the mid-twentieth century, the Universal Declaration of Human Rights.6 In the intervening 60 plus years, cultural rights remained underdeveloped when compared to other human rights (civil and political, social and economic) contained in the International Bill of Rights.7 Similarly, the first initiative in modern international law to protect cultural property occurred in the late nineteenth century with the codification of the rules relating to armed conflict and belligerent occupation.8 The first specialist multilateral legal instrument dedicated to the protection of cultural heritage at the international level was the 1954 Hague Convention.9 The State has figured large in both initiatives. Although the individual (as citizen and bearer of rights) and (national) culture have been integral to the modern State, human rights and culture (both universal and particular) are testing the boundaries of ongoing, positivist understandings of inter­ national law and centrality of the State within it. If indeed ‘culture’ is what renders us ‘human’, then unsurprisingly the exponential expansion of our understanding of what is culture and cultural heritage within international law in the last half century has been intimately connected to more nuanced and deeper interpretations of human rights norms. The diversity of engagement in international lawmaking since the end of the Second World War with the influx of new States from every region, augmented by the re-emerging or emerging influence of minorities and indigenous peoples, has propelled this trend. Likewise, multidisciplinary research has revealed the transformative impact that engagement by these diverse groups (including those groups not based on ethnicity or religion, like women, children, disability, sexual orientation, etc) in local and regional struggles are having on the vernacularization of the human rights, whilst also highlighting the need to be 5   Report of the independent expert in the field of cultural rights, Farida Shaheed, UN Doc A/HRC/17/38 (2011). 6   Universal Declaration of Human Rights (UDHR), GA Resolution 217A(III), 10 December 1948. 7   Symonides J, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) International Social Science Journal 559 ff. 8   Convention (IV) respecting the Laws and Customs of War on Land, and Annex, The Hague, 18 October 1907, in force 26 January 1910, 208 Parry’s CTS (1907) 77 American Journal of International Law 1908 (supp), p 90. 9   Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention), 14 May 1954, in force 7 August 1956, 249 UNTS 240.

  Human Rights and Cultural Heritage in International Law  141 vigilant against claims of culture which are used as a shield to hide from scrutiny human rights violations against vulnerable members of these groups.10 In seeking to highlight the transformative effects of culture and human rights in dissolving boundaries in international law, which have often been barriers to its progressive development, I have divided this chapter into two parts. First, I examine the dominance of the State in the protection of cultural heritage and mid-century interpretations of cultural rights. Then, as a foil to the trenchant resilience of the State, I will consider the rise or re-emergence of non-State groups in the late twentieth and early twenty-first centuries and their dissolution of pre-existing boundaries and accepted wisdoms in international law. It is suggested that rather than leaving international law and international society in a fragmented state, culture and human rights and their protection have not only exposed the shortcomings and instability of long-established principles, practices and personalities in international law; they are a common good which may serve to reformulate the values and aspirations which bind citizens with a State, and individuals within international society. II.  STATES, NATIONAL CULTURES AND INTERNATIONAL PROTECTION OF CULTURAL HERITAGE

A centralized, unified national culture has been a key component of national identity for the modern State. From its earliest manifestation, the modern State has sought to bind the persons within its territory, its citizens, together, not by chance but through design – an ‘imagined commun­ ity’ – a national culture.11 The essence of the State, its collective identity reflected in a national culture, was often deliberately and systematically manufactured. The centralizing, assimilating urge encompassed monuments and sites, cultural objects, and language – with effective control and standardization of all aspects of culture being vitally important to reinforcing claims over national territorial boundaries, internally and externally. Since the nineteenth century, the ‘logic of possessive individualism’ that defines an individual by the property she or he possesses, has been assigned to nation States.12 Within international society, these communities 10   See Goodall M and Merry SE (eds), The Practice of Human Rights: Tracking Law Between the Global and the Local (New York, 2007); and Blake J, ‘Taking a Human Rights Approach to Cultural Heritage Protection’ (2011) Heritage & Society 199 ff. 11   Anderson B, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, 1996). 12   See Macpherson CP, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1962); Radin MJ, ‘Property and Personhood’ (1982) Stanford Law Review 957 ff; and Handler R, ‘Who Owns the Past? History, Cultural Property, and the Logic of Possessive Individualism’ in Williams B (ed), The Politics of Culture (Washington DC, 1991) 63 ff;

142  Ana Filipa Vrdoljak are viewed as ‘collective individuals’, imagined to be spatially and historically defined, homogenous within and autonomous from other States. Each State seeks to define itself through a unique cultural identity that is constituted by its undisputed possession of property. The assimilation and centralizing policies which drove the realization of national cultures commenced in Europe, spread to their colonial dominions worldwide by settler States, and were reinforced again by new States following independence. Even a cursory survey of the main treaties for the protection of cultural heritage at the international and regional levels betrays the centrality of the State, as the right-holder and primary bearer of international obligations. It is States which determine the final form of these treaties, including the nature of their obligations under them. Even after the treaty is finalized and adopted, it is the individual State which determines whether to ratify the instrument and become bound by its obligations. Even after ratification, it is clear that the culture and heritage which is being protected is overwhelming the national culture heritage, with the State Party determining what shall come within the remit of its rights and obligations under the instrument’s framework (whether it be reporting, lists, etc). Enforcement procedures are generally triggered by the State in respect of violation of its rights in its self-defined national cultural property. Despite recent incremental developments in the field of international cultural heritage law, discussed below, this body of law remains defined by State interests and inter-State relations. Until recently, interpretations of cultural human rights largely augmented this focus on the national culture and its manifestations. In this first part, by looking at national and multilateral arrangements for the legal protection of monuments and sites, cultural objects, and intangible heritage, particularly language, I expose the on-going bias in favour of States’ conceptualization of culture and cultural heritage. If States are an artifice, then is it logical and sustainable that protection of cultural property by international instruments be based upon notions of national culture and the rights of States? It will be my contention that while it may be necessary to delegate the obligations (or the task) to States, we must not delegate the purpose or rationale to them. If cultural diversity is a common good of humanity, then its protection for the benefit of all human beings should be driving rationale. However, because of the legacy and continuing dominance of States in international law-making, the purpose and the task for the protection of cultural heritage remains primarily with the State. cf Carpenter K, Kaytal S and Riley A, ‘In Defense of Property’ (2008–09) Yale Law Journal 1022 ff; and Brown MF, ‘Culture, Property and Personhood. In Defense of Property: An Exchange’ (2010) International Journal of Cultural Property 569 ff.

  Human Rights and Cultural Heritage in International Law  143 To examine this persistent dominance, I will consider three centralizing, classifying and assimilating urges of the modern state which have indelibly shaped the legal protection of cultural heritage at the international level: inventories of monuments and sites, museums (and libraries) as storehouses of cultural artefacts, and dictionaries and the standardization of language. A.  Monuments and Sites Monuments and sites, because of their visual significance as markers on the national territory, were the prime targets of this assimilationist urge to transform and incorporate them into the prevailing, official narrative propounded by the central power. For example, during the nineteenth century on the Indian subcontinent, functionaries of the British Empire and its Colonial Office in London set about ordering every minutia of its imperial dominion and subject peoples.13 A plethora of surveys, including the Archaeological Survey, entailed the collection and ordering of phys­ ical and documentary information.14 These initiatives to know and order the imperial subject were also aimed at redefining and reordering their societal relations and economies to neutralize any threat to the metropolitan power, a purpose which would prove beneficial for its successor. This organizational structure and related policies and practices were retained and reinforced following partition and Indian independence in 1948. Today, the Archaeological Survey of India (ASI) oversees the implementation of the Ancient Monuments and Archaeological Sites and Remains Act 1958 and Antiquities and Art Treasure Act 1972, which were introduced originally under British colonial rule but reconfigured post-independence for the protection of monuments and sites of ‘national’ importance.15 This persistent, centralizing effort to collect, collate, and standardize by the central, metropolitan power (whether it be the Empire or State) has met with resistance because of realities on the ground as thousands of residents and local businesses adjoining these sites become displaced.16 13   See Anderson B (n 11) 184–85; and Rocher R, ‘British Orientalism in the Eighteenth Century: The Dialectics of Knowledge and Government’ in Breckenridge CA and van der Veer P (eds), Orientalism and the Postcolonial Predicament: Perspectives on South Asia (Philadelphia, 1993) 215 ff. 14   See Watson JF, On the Measures required for the Efficient Working of the India Museum and Library (London, 1874) 25–26. 15   See Narender Anand and Anor v Archaeological Survey of India and Ors, Civil Appeal No 2430 of 2006, Justice GS Singhvi; and Archaeological Survey of India v Narender Anada (2012) 2 SCC 562. 16   Rautela P, ‘Under Siege’, The Times of India, 9 October 2011; and Commissioner of Thiruvannamalai Municipality v Arunachala Giri Pradakshana Samithi and Ors, Supreme Court of India, Civil Appellate Jurisdiction, SLP (Civil), Nos 12443–12447 of 2001.

144  Ana Filipa Vrdoljak This preoccupation with the protection of tangible, cultural property was replicated domestically by States throughout the world from the early twentieth century.17 Consequently, it is predictable that this bias was reflected in initial efforts to legally protect cultural heritage at the inter­ national level. The earliest codifications of the laws and customs of war consistently afforded special protection to cultural property and particularly monuments and sites, and buildings housing cultural objects, books, and artefacts. Dedicated provisions in the 1907 Hague IV Regulations were elaborated in the first specialist instrument on the protection of cultural heritage, the 1954 Hague Convention and First Protocol (and 1999 Second Hague Protocol).18 The World Heritage Convention adopted in 1972, which was originally conceived as an instrument for the protection of monuments and sites, covers both natural and cultural heritage sites.19 Both instruments require States Parties to prepare and maintain inventory of significant sites, though protection is not confined to sites inscribed on these lists.20 The importance of monuments and sites as zones of often violent contestations between States and within States over territory (and national imagining) is typified by a series of recent examples which engage both instruments. These include the shelling of the old town of Dubrovnik in 1992,21 destruction of the Bamiyan Buddhas in 2001,22 the dispute between Thailand and Cambodia over the Temple of Preah Vihear,23 and most recently, the destruction of the mausoleums and ancient manuscripts in 17   See Brown G, The Care of Ancient Monuments, An Account of the Legislative and Other Measures Adopted in European Countries for Protecting Ancient Monuments and Objects and Scenes of Natural Beauty, and for Preserving the Aspect of Historic Cities (Cambridge, 1905). 18   Articles 27 and 56, 1907 Hague IV Regulations; Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention), 14 May 1954, in force 7 August 1956, 249 UNTS 240; Protocol for the Protection of Cultural Property in the Event of Armed Conflict (HPI), 14 May 1954, in force 7 August 1956, 249 UNTS 358; and Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (HPII), 26 March 1999, in force 9 March 2004, ILM 1999, 769. 19   Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention or WHC), 16 November 1972, in force 17 December 1975, 1037 UNTS 151. 20   Articles 11 and 12 WHC; and Article 11 HPII. 21   Listed on the World Heritage List (1979) and perpetrators of the bombing being subject to violations of international criminal law and international humanitarian law: ICTY, Trial Chamber II, Prosecutor v Pavle Strugar, Rule 98bis Motion, No IT-01-42-T, 21 June 2004. 22   The Cultural Landscape and Archaeological Remains of the Bamiyan Valley listed on the World Heritage List (2003) and their destruction led to the adoption of the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, 17 October 2003, UNESCO Doc 32C/Resolution 39. 23   Listed on the World Heritage List (2008) and subject of proceedings before the ICJ: Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment of 15 June 1962 and Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Order following Request for Provisional Measures, 18 July 2011.

  Human Rights and Cultural Heritage in International Law  145 Timbuktu, Mali in 2012.24 Yet, as is explained below, the Hague Convention and World Heritage Convention, whilst encapsulating the principle of subsidiarity are underpinned by the notions of solidarity and protection of a cultural heritage of humanity. For example, the United Nations Educational, Scientific and Cultural Organization (UNESCO) DirectorGeneral referred to the mosques and mausolea of Timbuktu as ‘part of the indivisible heritage of humanity’.25 The international community’s response to cultural destruction, while often ineffectual, does underscore this basic premise: the universal significance of the monument or site beyond the State on whose territory it may be located. B.  Cultural Objects If the survey and listing of monuments and sites represents the centrifugal force of the State extending its reach over its territory, the collection and display of cultural objects in museums entailed the opposite gravitation pull – toward the metropolitan centre, the national capital. The public possession and display of significant movable cultural heritage in dedicated buildings has been deployed by the modern State in the formation and inculcation of a unified national identity. From the Louvre and Bibliothèque nationale in republican Paris to the British Library, British Museum and Public Records Office (now National Archives) in Imperial London, this centralizing, universalizing and encyclopaedic drive to bring together under one roof a narrative of the nation (and Empire), has been replicated as a means of collecting, collating, presenting and preserving cultural objects and artefacts worldwide. This privileging of the museum and library as storehouses of cultural objects was reflected in the 1907 Hague IV Regulations which affords protection to these buildings rather than the objects themselves.26 A bias toward cultural objects located in museums and collections, rather than archaeological sites, is also replicated in current treaties for the protection of movable heritage. This centripetal drive was accompanied by a concomitant legislative initiative: antiquities laws, designed to facilitate state ownership of cultural materials and fill public collections. By the early twentieth century, many States had introduced domestic laws covering ownership of archaeological

24   Listed on the World Heritage List (1988). See Office of Director-General, Press Release: ‘Director-General of UNESCO Urges Respect for the Preservation of the World Heritage Site of Timbuktu’, 5 April 2012. 25   Office of Director-General, Press Release, ‘Irina Bokova Concerned about the Growing Threats to the Cultural Heritage in Mali’, 4 May 2012. 26   Articles 27 and 56, 1907 Hague IV Regulations. See also Article 1(b), 1954 Hague Convention.

146  Ana Filipa Vrdoljak materials.27 Like monuments laws, the antiquities laws were often introduced by imperial power and retained by States following independence.28 Present-day treaties covering movable heritage reflect the preoccupations and modes of protection contained in domestic laws. Iraq’s efforts to protect movable cultural heritage located on its territory provides a prescient example of these twin threads: the national museum and antiquities legislation, and how they are often intimately entwined. Iraq adopted its own Antiquities Law in 1924 upon independence (the first independent Arab State in the League of Nations). It served to build the collections of the Baghdad Antiquities Museum, which its Director, Gertrude Bell, referred to as: ‘[A] real Museum, rather like the British Museum only a little smaller’.29 The subsequent Director of the retitled National Museum of Iraq, Sati al-Husri, oversaw the introduction of a new Antiquities Law in 1936, which vested ownership of all antiquities in the Iraqi State and was only superseded in 2002.30 Public outcry, internationally and locally, followed the looting of the National Museum and other museums in major cities during the invasion of Iraq in 2003, with one local observing: ‘Our history was in the building. It was the soul of Iraq’.31 A Security Council Resolution required UN Member States to prohibit the transfer and facilitate the return of cultural property illegally removed from ‘the Iraq National Museum, the National Library and other locations in Iraq’.32 During the occupation, the National Museum became a symbol of the regaining of sovereignty and progress toward national reconstruction and reconciliation. Ironically, the on-going security threat has meant that the museum is rarely open to the public but its impact on the national and global public consciousness has led to its collections being made accessible virtually.33 Perhaps because of its ability to be removed from the State’s territory, specialist international instruments covering cultural objects are distinctly more statist when compared to those covering immovable or intangible heritage. State interests in cultural property dominate the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and 27   See Hill G, Treasure Trove in Law and Practice from the Earliest Time to the Present Day (Oxford, 1936). 28   For example, George Hill, the Director of the British Museum, was involved in drafting the antiquities laws for Iraq, Palestine, and Cyprus, which were modelled on his reworking of the British law of treasure trove, ibid 270. 29   Bell G, The Letters of Gertrude Bell Selected and Edited by Lady Bell, D.B.E (London, 1927) 602–03. 30   Article 3, Antiquities Law No 59 of 1936, as amended by No 120 of 1974 and No 164 of 1975. 31   Lemonick MD, ‘Lost to the Ages: Could the U.S. have Stopped the Looting of Iraq’s Priceless Antiquities? The Answer is Not That Simple’, Time, 28 April 2003, vol 161, 46. 32   Para 7, SC Resolution 1483 of 22 May 2003. 33   The Virtual Museum of Iraq at ; and Nordland R, ‘Google Chief Announces Plan in Baghdad to Put Iraqi Artifacts Online’, New York Times, 25 November 2009.

  Human Rights and Cultural Heritage in International Law  147 Transfer of Ownership of Cultural Property (1970 UNESCO Convention).34 The most striking characteristic of the Convention is the centrality of the State. The final text is pervaded by the references to the ‘State’ and ‘national’ culture, laws, institutions, and enforcement mechanisms. It is the State that defines which cultural material is protected and implements the measures for its protection.35 The removal of the cultural material from the State’s territory triggers the Convention’s control and enforcement mechanisms.36 At this high point of decolonization in 1970, newly independent States having inherited former colonial territorial boundaries also adopted metropolitan policies and practices to imagine their new dominion, including the establishment of national museums with supporting antiquities laws to instil a cohesive national identity.37 The travaux préparatoires of the 1970 UNESCO Convention recognized the importance of the link between cultural heritage and collective cultural identity. Early drafts had defined the Convention’s purpose as controlling the illicit transfer of the cultural heritage of ‘peoples’, rather than ‘states’. Also, the Preamble of the preliminary draft provided that Article 27 of the Universal Declaration of Human Rights (UDHR), concerning the right to participate in cultural life, required ‘States to protect the cultural property existing within their territory against the dangers from the illicit export and transfer of such property’.38 Neither of these appeared in the final text of the Convention. As noted below, Article 27 UDHR was initially interpreted as the right to participate in national cultural life.39 The subsequent Convention on Stolen or Illegally Exported Cultural Objects (1995 UNDROIT Convention) provides greater recognition of interests of non-State groups in accessing cultural heritage, but nonetheless, remains largely focused on States’ interests.40 Like the 1970 UNESCO Convention, the 1995 UNIDROIT Convention only applies to transfer of cultural objects across national boundaries. Like the UNESCO Convention, its rules delineate between cultural objects housed in museums and collections and those removed from archaeological sites, that is, between the ‘restitution’ of ‘stolen’ cultural objects, and the ‘return’ of ‘illegally exported cultural property’, that is, contrary to the   14 November 1970, in force 24 April 1972, 823 UNTS 231.   Articles 1, 5 and 14, 1970 UNESCO Convention. 36   Articles 3, 5(a), and 6, 1970 UNESCO Convention; and UNESCO Doc SHC/MD/3, paras 10–13. 37   Anderson B (n 11) 178–85. 38   UNESCO Doc SHC/MD/3, paras 9 and 10. 39   See UN Doc A/C.3/SR.797 (1957) 178; and UN Doc A.C.3/SR.799 (1957) 190–91. 40   24 June 1995, ILM 1995, 1322. Drafted and negotiated shortly after the adoption of the draft Declaration on the Rights of Indigenous Peoples by the UN Working Group on Indigenous Populations and Declaration on the Rights of Minorities by the General Assembly, the UNIDROIT Convention at several junctures accommodates the communal interest in movable heritage held by ‘national, tribal, indigenous or other communities’: Preamble, para 3 and Articles 3(8), 5(3)(d), and 7(2). 34 35

148  Ana Filipa Vrdoljak export laws of the requesting Contracting Party.41 Only Contracting Parties can bring claims for illegally exported objects, while private individuals can also bring claims for stolen cultural objects. C.  Intangible Heritage and Language That which prefigures all these centralization efforts of the modern State to instil loyalty and affinity with the new polity is language standardization.42 Its integral importance to this task reflects the long-standing resistance of States to any external interference in national cultural policies and the codification of protection for intangible heritage, especially languages, at the international level. The codification of the vernacular often preceded the secular, republican State (France) or was designed to promote unification of disparate States (Germany and Italy). Like the national list of monuments and museums housing the national collections which would follow it, the Académie française was charged with standardizing the French language and preparing an official dictionary, its own central repository. The proliferation of this drive was accelerated by the French Republic as it sought to inculcate the transition of its populace from subjects following the deposition of the monarchy to citizens, through the universalization and standardization of public education and the greater availability of books and newspapers to cater for the increasingly literate public.43 Article 2 (Sovereignty) of the Constitution of the French Republic of 4 October 1958 provides first that: ‘The language of the Republic shall be French.’44 Less than a third of the French populace spoke French in the late nineteenth century. Today, of the 26 vernacular languages spoken in France, 13 are listed as severely vulnerable (that is, while the grandparents’ generation or older speak the language, the parents may understand it but do not speak it among themselves or with their children).45 Added to this are kin States, or linguistic and ethnic communities which straddle France’s boundaries with neighbouring States, for example, the Basque, and migrants or descendants of migrants living in France speaking their own mother tongue. Upon its ratification of the International Covenant on Civil and Political Rights (ICCPR), France provided that in respect of Article 27 covering minorities: ‘In the light of article 2 of the Constitution of the French Republic,   Article 1, and Chapter III and Chapter II respectively, UNIDROIT Convention.   Anderson B (n 11) 67–82. 43   Ibid. 44   Language is followed by other intangible aspects of French national identity including the tricolor flag, La Marseillaise (anthem), the motto ‘Liberty, Equality, Fraternity’, and its governing principle, ‘government of the people, by the people and for the people’. 45   Moseley C (ed), Atlas of the World’s Languages in Danger, 3rd edn (Paris, 2010). 41 42

  Human Rights and Cultural Heritage in International Law  149 the French Government declares that article 27 is not applicable so far as the Republic is concerned’. France maintains that minorities do not exist in the State because its Constitution ensures equality before the law, without distinction as to origin, gender or religion. The Human Rights Committee (HRC), which oversees the ICCPR’s implementation, noted that: ‘[T]he mere fact that equal rights are granted to all individuals and . . . are equal before the law does not preclude the existence in fact of minorities in a country, and their entitlement . . .’.46 Nonetheless, each application brought under Article 27 against France has been ruled inadmissible.47 The Lisbon Treaty, to which France is a Party, incorporates the Charter of Fundamental Freedoms of the European Union, which under Article 22 provides that the Union shall respect cultural, religious and linguistic diversity.48 Subsequently, France introduced a constitutional amendment in Title XII (on territorial communities) which States that ‘Regional languages are part of France’s heritage’ (Article 75-1). The Conseil Constitutionnel has determined that this provision does not bestow an enforceable right or freedom.49 Furthermore, France is not a State Party to the European Charter for Regional or Minority Languages,50 and the Conseil Constitutionnel has found that the Charter is contrary to Article 2 of the Constitution.51 Yet, the French Government (and Académie française) has actively and strenuously advocated linguistic diversity beyond France’s borders to ensure the vitality, usage and prominence of the French language inter­ nationally.52 The negotiation and adoption of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005 Cultural Diversity Convention) provides a telling example of this strategy. The Convention was initially intended as a multilateral instrument for the protection of cultural rights but in its final form reads like a ‘trade agreement’,53 reflecting the concerns of a coalition of French-speaking 46   Concluding Remarks of the Human Rights Committee: France, 8 April 1997, UN Doc CCPR/C/79/Add.80, para 24. 47   See HRC, TK v France, Communication No 220/1987, Decision on Admissibility, 8 November 1989, UN Doc CCPR/C/37/D/220/1987; HRC, MK v France, Communication No 222/1987, Decision on Admissibility, 18 December 1989, CCPR/C/37/D/222/1987; and HRC, SG v France, Communication No 347/1988, Decision on Admissibility, 1 November 1991, see separate opinions of Rosalyn Higgins in this case and in HRC, HK v France, in Annual Report of the Human Rights Committee, UN Doc A/45/40, 1990, vol II, annex X.A, appendix II, annex X.B, appendix II. 48  Article 6, Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 December 2007, in force 1 December 2009 [2007] OJ C306/01; and Charter of Fundamental Freedoms of the European Union, 18 December 2000 [2000] OJ C364/01, . 49   Decision No 2011-130 of 20 May 2011. 50   5 November 1992, in force 1 March 1998, CETS No 148. 51   Decision No 99-412DC of 15 June 1999. 52   See France diplomatique, ‘Multilinguism’, at . 53   Stamatopoulou E, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Leiden, 2007).

150  Ana Filipa Vrdoljak countries.54 This bloc effectively transformed it into a vehicle for the protection of French-language cultural goods (including books, film, and other media) in response to its fear that further trade liberalization would increase the influx of foreign language cultural goods, particularly English-language products.55 The 2005 Cultural Diversity Convention notes that while globalization can facilitate interaction between cultures, it also constitutes a potential threat to cultural diversity.56 One of its objectives is the recognition of the ‘distinctive nature of cultural goods and services as vehicles of identity, values and meaning’ so that they are not treated as ordinary consumer goods.57 Nonetheless, the Convention draws significantly from inter­ national trade, intellectual property, and development law. This tone is reflected in the use of terms like ‘cultural goods and services’ and ‘expressions’, and provisions like Article 16, under international cooperation, which permits preferential treatment for developing countries. The Convention acknowledges that ‘cultural diversity is the defining characteristic of humanity’58 and that it can be sustained through the ‘constant exchange between cultures’ and ‘the right of access of all people to a rich and diversified range of cultural expressions from all over the world’.59 Significantly, it recognizes the fundamental right of groups, especially minorities and indigenous peoples, ‘to create, disseminate and distribute their cultural goods and services, including their traditional cultural expressions . . .’.60 Its third principle acknowledges the equal dignity and equal respect for these communities and their cultures. While no definition of ‘culture’ is contained in the Convention, it does note that it ‘takes diverse forms across time and space’ and recalls that ‘linguistic diversity is a fundamental element of cultural diversity’.61 Nonetheless, the 2005 Cultural Diversity Convention repeatedly reaffirms ‘the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory.’62 However, it also reiterates that these rights are subject to human rights norms and the States Parties’ existing treaty obligations.63 54   Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Cultural Diversity Convention), Paris, 20 October 2005, in force 18 March 2007, 2440 UNTS 311. 55   Voon T, Cultural Products and the World Trade Organization (Cambridge, 2007). 56   19th recital, Preamble, Cultural Diversity Convention. 57   Article 1(g), ibid. 58   First recital, Preamble, ibid. 59   Article 2, Principle 7, ibid. 60   15th recital, Preamble, ibid. 61   Seventh and 14th Recitals, Preamble, ibid. 62   Articles 1(h), 2, 5(1) and 20(2) ibid. 63   Articles 2(1) and 5(1) ibid.

  Human Rights and Cultural Heritage in International Law  151 The adoption of the Convention for Safeguarding of the Intangible Cultural Heritage (Intangible Heritage Convention) in 2003 was propelled by similar concerns to those that drove the 2005 Convention.64 The UNESCO Director-General in his preliminary study observed that the Convention ‘should be effective in countering adverse impact of globalisation which threaten the survival of much intangible cultural heritage. . . . [which] helps to affirm cultural identity, promote creativity and enhance diversity worldwide.’65 This emphasis is replicated in the final text which provides that ‘globalization and social transformation’ while enabling increased intercultural dialogue, ‘also give[s] rise, as does the phenomenon of intolerance’ and to ‘grave threats’ to intangible heritage.66 Article 2 of the Convention defines its ratione materiae to include: ‘the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups, and in some cases, individuals recognise as part of their cultural heritage’. Language is not protected per se, but only as a ‘vehicle’ for the intangible heritage. Intangible heritage will only attract protection if it is compatible with the international human rights framework and does not foster intolerance and destruction of other cultures.67 One of the purposes of the Convention is to ensure respect for the intangible heritage of ‘communities, groups and individuals’ and States are obliged to seek the ‘participation’ of communities, groups and relevant non-governmental organizations.68 Nonetheless, the role of the State remains central. Although adopted more than 30 years after the World Heritage Convention, the drafters of the Intangible Heritage Convention used a legal framework designed for immovable, tangible heritage as a template.69 Furthermore, the Convention explicitly does not affect the protection afforded by the World Heritage Convention nor intellectual property rights.70 Most significantly, the Intangible Heritage Convention also establishes lists.71 States Parties are required to maintain an updated inventory of their intangible heritage.72   17 October 2003, in force 20 April 2006, 2368 UNTS 1.   Report on the Preliminary Study on the Advisability of Regulating Internationally, through a new Standard-Setting Instrument, the Protection of Traditional Culture and Folklore, UNESCO Doc 161 EX/15, para 4. 66   Fourth recital, Preamble, Intangible Heritage Convention. 67   UNESCO Doc 161 EX/15, Annex, 3, para 11. 68   Article 11(b), Intangible Heritage Convention. Self-governing groups within States can accede to the Convention in certain circumstances: Article 33. 69   UNESCO Member States had deliberated, but decided against, the inclusion of intangible heritage in the 1972 World Heritage Convention: UNESCO Doc 30C/DR.84. Since 1977, the World Heritage Committee has progressively amended the Operational Guidelines (OG) to promote an integrated approach to cultural heritage with the increased likelihood of intangible cultural heritage being protected on the World Heritage List. 70   Article 3, Intangible Heritage Convention. 71   Part IV, ibid. 72   Article 12, ibid. 64 65

152  Ana Filipa Vrdoljak Also, they nominate intangible heritage for inclusion on the Representative List of Intangible Cultural Heritage of Humanity and the List of Intangible Heritage in Need of Urgent Safeguarding inscribed by the Intangible Heritage Committee.73 A number of delegations, who unsuccessfully argued against the inclusion of lists, maintained that they create a hierarchy of cultures which is incompatible with intangible heritage and that excellence, uniqueness and typicality be emphasized. The 2003 Intangible Heritage Convention represents a moment of transition reflected in its split approach. Its Preamble and purposes indicate an awareness of the importance of culture and heritage to communities and individuals, but the substantive components of the treaty continue to betray the continuing predominance of the State in respect of rights and obligations. D.  Right to Participate in Cultural Life and National Cultural Policy From 1945 to 1989, minority protection was subsumed within the emerging international human rights discourse. Set against the cold war and the threat of fragmentation precipitated by liberation movements, States privileged the need for national unity through integration policies. They argued that the universalization of minority protection threatened their internal political, economic and social stability.74 Minority protection was confined to the realm of non-discrimination and human rights enjoyed by individuals.75 Any notion of cultural rights as being positive and collective was rejected in most international fora. The right to participate in the cultural life of the community was incorporated into Article 27 UDHR and subsequently rearticulated in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).76 This right has until recently been strictly limited to participation in the ‘national culture’ by the individual right holder. The travaux of Article 27(1) UDHR reveals that the drafters were preoccupied with the participation and enjoyment by the wider population of culture manifestations confined ordinarily to a small élite. Culture was defined narrowly as ‘high’ culture including museums, libraries and theatres.77 While the UDHR is a non-binding declaration, this human right’s later inclusion in the ICESCR renders it legally binding on States Parties. Also, the inclusion 73   Articles 16 and 17, ibid. In cases of extreme urgency the Committee may inscribe an item on the List in Need of Urgent Safeguarding ‘in consultation with the State Party concerned’. 74   See UN Doc A/C.3/SR.162, 723. 75   Articles 2 and 7 UDHR. 76   GA Res 2200A(XXI), 16 December 1966, in force 3 January 1976. 77   Donders YM, Towards a Right to Cultural Identity? (Antwerp, 2002) 139. See also O’Keefe R, ‘The Right to Take Part in Cultural Life under Article 15 of the ICESCR’ (1998) International and Comparative Law Quarterly 904 ff.

  Human Rights and Cultural Heritage in International Law  153 of Article 27 in the UDHR meant that this right was to be enjoyed by every human being and it was a right equal to and indivisible from all other rights contained in the Declaration.78 UNESCO presented a preliminary draft Article 15 which referred primarily to the preservation and development of tangible cultural heritage. However, it also required States Parties to ‘encourage[e] the free cultural development of racial and linguistic minorities’.79 The Committee of Experts called by UNESCO to elaborate upon this right observed that a distinction needed to be made ‘between different types of communities, to which any given individual may belong at one and the same . . . may run counter to, or at least differ considerably from, those of the national community . . .’.80 UNESCO’s recommendation to include the words: ‘to take part in the cultural life of the communities to which he belongs’, was eventually defeated.81 The focus of the international community clearly remained on the ‘national’ community. III.  DISSOLVING BOUNDARIES, COMPETING IDENTITIES: COMMUNITIES AND INDIVIDUALS

Cultural, religious and linguistic groups are not defined by territorial boundaries. These communities exist within and across States. Despite the nationalist project of most modern States to create a singular, cohesive identity, this diversity remains. Equally, individuals invariably possess multiple identities which may traverse ethnic and religious groups but also gender, age, sexual orientation, etc. Our collective and individual awareness of these diverse allegiances as potential sources of creativity but also conflict has accelerated with modernity and with the latest wave of globalization. These forces have also destabilized the conceptualization of the state in international law – exposing its artifice. As explained in the first part of this chapter, most (if not all) States have endeavoured to create and promote a unified, national cultural identity to fill (and legitimize its occupation of) its territory. The current multilateral agreements for the protection of cultural heritage are defined by this preoccupation. States (their rights and obligations) dominate not only the framework of these treaties, their design is reflective of a purpose and rationale which remains Statefocused and primarily designed to promote national cultural policies. It is not surprising that States have invariably adopted (and tailored) the preceding policies and practices of empires in pursuit of this task because it is   UNESCO Doc UNESCO/DG/188, 6 October 1952.   UN Doc E/CN.4/541. 80   CUA/42, 17. 81   UN Doc A/C.3/SR.797, 178; and UN Doc A.C.3/SR.799, 190–91. 78 79

154  Ana Filipa Vrdoljak a familiar one, the illusion of a singular, overarching dominant collective identity for a diverse populace. The period from 1945 to 1989 during which the protection of minorities in international law was subsumed within the human rights framework, in particular, non-discrimination, due to the resistance particularly of settler States with indigenous populations and fear of scrutiny of national assimilation policies was not the norm. The rise of the State in modern international law was accompanied by the recognition of minority (cultural, religious or linguistic) protections. From the recognition of Poland in the 1919 Treaty of Versailles to the recognition of Kosovo in 2008, the international community has repeatedly accompanied the recognition of statehood with guarantees for the diverse communities contained within its territory. These protections go beyond equal enjoyment of human rights and non-discrimination to ensuring the ongoing viability of these cultural, linguistic and religious differences. The second part is a foil to the first part of this chapter. It highlights the collision between culture and human rights in contemporary international law with particular reference to access to cultural heritage and the transformative effect the articulation of cultural diversity as a common good has had on our accepted understanding of statehood. First, there is an examination of the reinterpretation of the right to cultural life (Article 15 ICESCR), then an analysis of the broader implication of the re-­ emergence of the right to one’s own culture (Article 27 ICCPR), and finally, the promotion of cultural diversity as a common good by the international community. A.  Right to Participate in Cultural Life Redefined After 1945, cultural rights became human rights held by every individual human being. It was argued that non-discrimination and the effective realization of human rights would ensure members of minorities in new and existing States would also have their rights protected, including their cultural rights. After 1989, this argument was no longer tenable as it became apparent that individual human rights alone could not operate as an effective shield against a State hostile to groups on its territory. Gradually, certain existing human rights, particularly cultural rights, were reinterpreted as having a ‘collective’ dimension and the question of special measures for protection of minorities re-emerged at the multilateral level. The right to participate in cultural life has similarly undergone a metamorphosis, which complements the jurisprudence related to Article 27 ICCPR. I will only consider three elements pertinent to the present discussion: first, the shift from an emphasis on national culture to culture as a

  Human Rights and Cultural Heritage in International Law  155 way of life of individual and groups, second, elaboration of access to cultural heritage as integral to cultural rights, and thirdly, the transformation of the understanding of culture and cultural heritage as cultural rights become vernacularized through their utilization by communities worldwide, especially indigenous peoples. A decade after the adoption of Article 15 ICESCR, a gradual reconfiguration of the boundaries of the right to take part in cultural life began which encompassed UNESCO’s original interpretation. The 1976 UNESCO Recommendation, which elaborates upon the right contained in Article 15 ICESCR, obliges State Parties to ensure that minorities have ‘full opportun­ ities for gaining access to and participating in the cultural life . . . in order to enrich [the relevant country] with their specific contributions, which safeguards their right to preserve their cultural identity.’82 General Comment No 21 provides that ‘everyone’ covers a person as an individual, in association with others or within a community or group.83 The Committee for Economic, Social and Cultural Rights (CESCR), the body which monitors the implementation of this treaty’s obligations, requires States Parties to report on their efforts to ensure participation and access to cultural life by all parts of their population, in particular children (especially of poor, migrant or refugee families), older persons, and persons with disabilities.84 CESCR has repeatedly linked specific reference measures addressing minorities and indigenous peoples to the promotion of cultural diversity generally.85 It also requires States Parties to report on initiatives to ‘promote awareness of the cultural heritage of ethnic, religious or linguistic minorities and of indigenous communities, and create favourable conditions for them to preserve, develop, express and disseminate their identity, history, culture, language, traditions and customs’.86 The CESCR has confirmed that States Parties have both negative (noninterference with exercise of cultural practices and access to cultural ‘goods and services’) and positive (ensuring conditions for participation, facilitation and promotion of cultural life and access to and preservation of cultural heritage) obligations.87 The minimum core obligation is defined as: ‘The obligation to create and promote an environment within which a person individually, or in association with others, or within a community 82   See Article 4(f), 1976 UNESCO Recommendation on the Right to Participate in Cultural Life, adopted on 26 November 1976 by UNESCO General Conference, 19th session, Nairobi. 83   General Comment No 21, Right of everyone to take part in cultural life, 21 December 2009, UN Doc E/C.12/GC/21, para 9. 84   Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, 13 January 2009, UN Doc E/C.12/2008/2, 14, para 67. 85   See General Discussion on the Right to Take Part in Cultural Life as recognised in Article 15 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1993/22, Chapter VII, para 205; Revised Guidelines, para 1(d). 86   UN Doc E/C.12/2008/2, 14, para 68. 87   General Comment No 21 (n 83), para 6.

156  Ana Filipa Vrdoljak or group, can participate in the culture of their choice . . .’.88 This includes the immediate removal of hindrances to accessing one’s own culture or other cultures ‘without discrimination and without consideration for frontiers of any kind’.89 Access to culture is further elaborated by the Committee as: [T]he right of everyone – alone, in association with others or as a community – to know and understand his or her own culture and that of others . . . to follow a way of life associated with the use of cultural goods and resources such as land, water, biodiversity, language or specific institutions, and to benefit from the cultural heritage and the creation of other individuals and communities.90

UN Special Rapporteur on Cultural Rights, Farida Shaheed notes that: [A]ccess to and enjoyment of cultural heritage as a human right is a necessary and complementary approach to the preservation/safeguard of cultural heritage. . . . Accessing and enjoying cultural heritage is an important feature of being a member of a community, a citizen and, more widely, a member of society.91

The 1976 UNESCO Recommendation likewise provided that ‘access to culture’ means ‘concrete opportunities’ for ‘enjoying cultural values and cultural property’.92 The Human Rights Council has recalled that States Parties to the ICESCR must take measures ‘necessary for the conservation, development and diffusion of science and culture’, to fully realize rights under Article 15.93 As with other human rights, the right entails a three-pronged obligation for States Parties: the obligation to respect, the obligation to protect, and the obligation to fulfil. The obligation to respect includes access to one’s own cultural and linguistic heritage and that of others.94 General Comment No 21 notes ‘cultural heritage and diversity are interconnected’ in respect of the obligations to respect and protect this right.95 Consequently, States Parties are obliged to respect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters,96 of all groups and communities, especially those disadvantaged and marginalized, and the cultural production of indigenous peoples including their traditional knowledge and other forms of intangible heritage, lands and resources, by the State, private or transnational corporations.97 The State Party’s positive obligation to fulfil   Ibid, para 55 (emphasis added).   Ibid, para 55(d).   Ibid, para 15(b). 91   UN Doc A/HRC/17/38, para 2. 92   Article 2(a), 1976 UNESCO Recommendation (n 82). 93   Fourth recital, Preamble, HRC Resolution 6/11 of 28 September 2007, Protection of Cultural Heritage as an important component of the promotion and protection of cultural rights, UN Doc A/HRC/RES/6/11. 94   General Comment No 21 (n 83), para 49(d). 95   Ibid, para 50. 96   Ibid, para 50(a). See also HRC Resolutions 6/1 Protection of cultural rights and property in situations of armed conflict of 27 September 2007, UN Doc A/HRC/RES/6/1; and 6/11 of 28 September 2007, UN Doc A/HRC/RES/6/11 (n 93). 97   General Comment No 21 (n 83), paras 50(b) and (c). 88 89 90

  Human Rights and Cultural Heritage in International Law  157 includes enabling cultural and linguistic minorities to exercise their right to association in order to exercise their cultural and linguistic rights; promoting respect for cultural heritage and cultural diversity through education and awareness-raising; and enacting appropriate legislation, programmes to preserve and restore cultural heritage and ensure access of all to ‘museums, libraries, cinemas and theatres and to cultural activities, services and events’.98 While the Committee notes that States Parties have a wide margin of discretion concerning the implementation of these obligations at the national level, they were encouraged to bring their ‘valuable cultural resources’ within the reach of everyone.99 The definition of culture has similarly broadened in the intervening decades, with a corresponding relegation of the earlier interpretation. The 1976 UNESCO Recommendation states that: Culture is not merely an accumulation of works and knowledge which an elite produces, collects and conserves in order to place it within reach of all; or that a people rich in its past and its heritage offers to others as a model which their own history has failed to provide them; that culture is not limited to access to works of art and the humanities, but is at one and the same time the acquisition of knowledge, the demand for a way of life and the need to communicate.100

This view was reiterated in the General Comment No 21 when it emphasized the need to move away from ‘the material aspects of culture (such as museums, libraries, theatres, cinemas, monuments and heritage sites)’ and embrace ‘proactive measures that also promote effective access by all to intangible cultural goods (such as language, knowledge and traditions)’.101 Accordingly, the CESCR, reflecting developments in other fields of human rights and cultural heritage law, has endorsed an understanding of culture that not only covers its individual and collective dimension and accepts that it ‘reflects . . . the community’s way of life and thought’.102 The UNESCO Recommendation had also provided that the   Ibid, paras 52(c), 53 and 54.   Ibid, para 68. 100   Fifth recital, Preamble, 1976 UNESCO Recommendation (n 82). See also Fifth recital, Preamble, Declaration of the Principles of International Cultural Co-operation, adopted by the UNESCO General Conference on 4 November 1966. 101   General Comment No 21 (n 83), paras 68 and 70. The Independent Expert on Cultural Rights, UN Doc A/HRC/17/38, para 4, has defined cultural heritage as including (but not limited to): 98 99

[T]angible heritage (e.g. sites, structures and remains of archaeological, historical, religious, cultural or aesthetic value), intangible heritage (e.g. traditions, customs and practices, aesthetic and spiritual beliefs, vernacular or other languages, artistic expressions, folklore) and natural heritage (e.g. protected natural reserves, other protected biologically diverse areas, historic parks and gardens and cultural landscapes).

102   General Discussion on the Right to Take Part in Cultural Life as recognised in Article 15 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1993/22, Chapter VII (‘General Discussion’), paras 204, 209, 210 and 213; and General Comment No 21 (n 83), para 11.

158  Ana Filipa Vrdoljak concept of culture be ‘broadened to include all forms of creativity and expression of groups or individuals, both in their ways of life and in their artistic activities’.103 The CESCR has noted that: ‘Culture shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities.’104 However, this transformation in the definition of culture entails an emphasis on its ‘living’ or evolving nature. The Independent Expert on Cultural Rights elaborates that it is a ‘dynamic concept’ which evolves over time as it is ‘transmitted from generation to generation’.105 The vernacularization of human rights norms, especially cultural rights, by indigenous communities and minorities has significantly affected this process. Whilst several UNESCO instruments have defined culture and cultural heritage,106 the definition espoused by indigenous peoples is differentiated by a number of key factors.107 Indigenous peoples embrace a holistic conceptualization of culture which covers land, immovable and movable heritage, tangible and intangible elements.108 Indigenous peoples emphasize the symbiotic relationship between these elements in sustaining and developing their collective identities.109 This symbiosis is combined with the central importance of land (and resources) to the maintenance and survival of indigenous cultures and identities.110 General Comment No 21 recognizes this strong communal aspect of indigenous heritage and the integral nature of land and resources in respect of the right to participate in cultural life.111 This relationship between indigenous peoples and their traditional lands goes beyond proprietorship and is primarily defined by its ‘spiritual’ aspect.112 Another characteristic of   Para 3(a), 1976 UNESCO Recommendation (n 82).   General Comment No 21 (n 83), para 15. 105   UN Doc A/HRC/17/38, para 5. 106   For a discussion of the inadequacy of definitions contained in existing UNESCO instruments, see UN Doc E/CN.4/Sub.2/1991/34, paras 4 ff. Recent UNESCO instruments have gone some way to accommodating a broader notion of culture and its manifestations: see eighth and 15th recitals, Preamble and Article 4, Cultural Diversity Convention; Article 2, Intangible Heritage Convention; Articles 7 and 8, Universal Declaration on Cultural Diversity, 2 November 2001, UNESCO Doc 31C/Resolution 25, Annex I; ILM 2002, 57. 107   See UN Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Resolution 61/295 of 13 September 2007; Final Report of the Special Rapporteur, Erica-Irene Daes, 21 June 1994, UN Doc E/CN.4/Sub.2/1995/26, Annex: Revised text of the Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples (1994 Guidelines); and Review of the draft principles and guidelines on the heritage of indigenous peoples, Yozo Yokota and the Saami Council, 16 June 2006, UN Doc E/CN.4/Sub.2/2006/5, Annex: [Revised] Draft guidelines on the protection of the cultural heritage of indigenous peoples (2006 draft Guidelines). 108   Articles 11–13, 25, and 31 UNDRIP (n 107). 109   See UN Doc E/CN.4/Sub.2/1995/26, Annex, paras 11–13; E/CN.4/Sub.2/2000/26, Annex I, paras 12–14; and E/CN.4/Sub.2.AC.4.2006/5, 6-8, paras 1–2. 110   Tenth recital, Preamble, UNDRIP (n 107). 111   General Comment No 21 (n 83), paras 36, 37 and 50(c). 112   Article 26, UNDRIP (n 107). See General Comment No 21 (n 83), para 49(d); Article 13(1) ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries 103 104

  Human Rights and Cultural Heritage in International Law  159 indigenous culture and cultural heritage is that its protection within the relevant community is already governed by their own customs, laws and practices.113 Whilst customary law necessarily varies from community to community, it usually recognizes the following inherent characteristics of indigenous heritage: it affirms that ownership and custodianship of indigenous heritage is usually collective or communal in character114; that such ownership and custodianship over heritage is permanent and inalienable115; and, it reinforces the intergenerational nature of custodianship and transmission of their cultures.116 Customary law addresses vital characteristics of indigenous cultural heritage which make it inherently difficult (if not impossible) to be protected by existing international and national legal regimes covering cultural heritage. The Chairperson of the UN Working Group on Indigenous Populations suggested that the submission of indigenous cultural heritage into the purview of these laws has ‘the same effect on their identities, as the individualization of land ownership . . . that is, fragmentation into pieces, and the sale of the pieces, until nothing remains’.117 B.  Right to Enjoy One’s Own Culture Article 27 of the ICCPR is the right of ‘members of the minorities to enjoy their own culture, practice their own religion, and use their own language’.118 Whilst certain liberal theorists have argued for the importance of possessing a culture in order to exercise freedom of choice in the pursuit of civil and political rights as a citizen of a State,119 others have emphasized the significance of one’s own culture for individual identity and the enjoyment of all human rights.120 It is this latter interpretation of cultural rights through jurisprudence arising in respect of Article 15 ICESCR and Article 27 ICCPR which is gaining prominence in the early twenty-first century. (ILO 169), 27 June 1989, entry in force 5 September 1991, 1650 UNTS 383; and IACtHR, Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment (2001), No 79 IACtHR (ser C), para 149. 113   Article 34, UNDRIP (n 107); and Principles 5 and 6, 2006 draft Guidelines (n 107). 114   Principle 5, 2000 revised draft Guidelines and Principle 20, 2006 draft Guidelines (n 107). 115   Criteria (f) and (i) and Principle 11(c), 2006 draft Guidelines (n 107). See Coombe RJ, ‘The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy’ (1993) Canadian Journal of Law and Jurisprudence 249 ff. 116   Criteria (g), (n) and (q) and Principles 1, 11(a) and (b), 2006 draft Guidelines (n 107). 117   UN Doc E/CN.4/Sub.2/1993/28, para 32. 118   GA Res 2200A(XXI), 16 December 1966, in force 23 March 1976. 119   See Kymlicka W, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford, 2007). 120   See Margalit A and Halbertal M, ‘Liberalism and the Right to Culture’ (1994) Social Research 492 ff.

160  Ana Filipa Vrdoljak The Universal Declaration does not include a provision dedicated to minority protection. During deliberations of the draft Universal Declaration, the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities and UN Secretary-General distinguished between non-discrimination provisions and a regime of minority protection.121 They noted that minority protection implied a permanent set of arrangements to protect the identity of the community by placing a positive obligation on the State to establish institutions for non-dominant groups to protect and develop their language, culture and religion.122 The Sub-Commission prepared a draft provision which was not included in the final text of the UDHR.123 A dedicated, binding ‘minority’ protection was only realized in 1966 with the adoption of Article 27 ICCPR. The large-scale human tragedy and instability caused by civil conflicts in the late twentieth century, led to a growing acceptance that dependence on the universal application of individual human rights and non-­ discrimination alone failed to protect victims targeted because of their membership of an ethnic or religious community. In response, new instruments which incorporated cultural rights were finalized at the inter­ national and regional level to protect minorities and indigenous peoples. The most significant of these are the United Nations’ 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Minorities Declaration),124 and the 2007 Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 27, which evolved from the UN General Assembly Resolution on Fate of Minorities, was adopted on the same day as the Universal Declaration.125 Its purpose is: ‘towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned . . .’.126 It is a right granted over and above other rights contained within the two International Covenants, including nondiscrimination.127 Similarly, the 2005 Commentary to the UN Declaration advises that it augments other international human rights instruments ‘by strengthening and clarifying those rights which make it possible for persons belonging to minorities to preserve and develop their group

  UN Doc E/CN.4/Sub.2/8 (1947).   See Capotorti F, ‘The Protection of Minorities under Multilateral Agreements on Human Rights’ (1976) Italian Yearbook of International Law 3 ff; and UN Doc E/CN.4/ Sub.2/384/Add.5 (1977) paras 29 ff. 123   UN Doc A/CN.4/AC.1/3. 124   UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, 18 December 1992. 125   UNGA Res 217C(III), 10 December 1948, UN Doc A/810. 126   General Comment No 23, The Rights of Minorities, 26 April 1994, UN Doc HRI/ GEN/1/Rev 1, p 38, para 9. 127   Ibid, paras 4, 5(1) and 9. 121 122

  Human Rights and Cultural Heritage in International Law  161 identity’.128 In its Preamble, the Declaration notes that it is inspired rather than based on Article 27 ICCPR, and therefore, is not restricted by the provision.129 Yet, despite being riddled with provisos, since its inclusion in the ICCPR, Article 27 has played an important role in defining the cultural rights held by minorities and indigenous peoples in international law. In an effort to limit the reach of the protection Article 27 afforded, several States insisted on the inclusion of the words: ‘In those states in which ethnic, religious or linguistic minorities exist.’130 However, as the Permanent Court of International Justice observed, the existence of a minority is a question of fact not law.131 Likewise, in its General Comment No 23, HRC states that the existence of a minority within ‘a given state party does not depend upon a decision by that state party but requires to be established by objective criteria’.132 The inclusion of the minority protection within the international human rights framework reinforced the presumption that the right-holder is an individual and not the group.133 Indeed, Article 27 refers to ‘persons belonging to such minorities’ and not ‘minorities’ per se. In addition, the complaint mechanism contained in the Optional Protocol to the ICCPR provides standing to States or individuals but not to ‘communities’.134 The concession to the collective aspect of minority rights came with the words ‘in community with other members of their group’. The HRC has repeatedly affirmed that the right of enjoyment of culture, practice of religion, or use of language can only be realized meaningfully when exercised ‘in a

128   Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 4 April 2005, UN Doc E/CN.4/Sub.2/AC.5/2005/2.f 129   Fourth recital, Preamble, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, 18 December 1992, UN Doc A/ Res/47/135; ILM 1993, 91. See Thornberry P, ‘The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update’ in Phillips A and Rosas A (eds), Universal Minority Rights (Helsinki, 1995) 13 ff, 37. 130   See UN Doc A/C.3/SR.1104, para 23. 131   See Permanent Court of International Justice (PCIJ), Rights of Minorities in Upper Silesia (Minority Schools), 1928, ser A, No 15, 29; and Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig territory, 1932, Series A/B, No 44, 28 and 39. 132   General Comment No 23 (n 126), para 5.2. See Lovelace v Canada, No 24/1977, 30 July 1981, UN Doc CCPR/C/13/D/24/1977, para 14; and Kitok v Sweden, No 197/1985, UN Doc A/43/40 (1988), 221, para 9(7). 133   See UN Doc E/CN.4/Sub.2/384/Add.2, paras 125 ff.; and General Comment No 23 (n 126), para 1. 134   Optional Protocol to the International Covenant on Civil and Political Rights, UNGA Res 2200A(XXI), 16 December 1966, in force 23 March 1976, 21 UN GAOR Supp (No 16) 59; UN Doc A/6316 (1966); 999 UNTS 302; and ILM 1967, 368. Nonetheless, the Committee has noted that ‘in principle, [there is] no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about the alleged breaches of their rights’: Howard v Canada No 879/1999 Doc CCPR/C/84/D/879/1999, para 8.3.

162  Ana Filipa Vrdoljak community’, that is as a group.135 General Comment No 23 states that Article 27 protects ‘individual rights’ but that the obligations owed by States are collective in nature.136 Likewise, the UN Declaration privileges individual rather than collective rights by referring to the rights of ‘persons belonging to minorities’.137 Nonetheless, it does provide a bridge between the individual right and its exercise in the collective context.138 While the rights are granted to individuals, the duties of States extend to minorities as groups.139 The commentary also stipulates that ‘the state cannot fully implement them without ensuring adequate conditions for the existence and identity of the group as a whole’.140 The right contained in Article 27 is negatively conferred, with the addition of the words ‘shall not be denied the right’. However, General Comment No 23 provides that Article 27 imposes positive obligations on States Parties.141 In the UN Declaration, the cultural rights of the group are accommodated by the restatement of the wording of Article 27 ICCPR, but it does so as a positive rather than negative obligation.142 The commentary insists that the safeguarding and promotion of the identity of minorities and the effective realization of their cultural rights will often require protective and proactive measures by the State.143 In addition, according to the Declaration, special measures designed to meet these obligations will not prima facie offend the principle of equality contained in the UDHR.144 The UN Independent Expert on Cultural Rights notes that while Article 27 ICCPR does ‘not mention cultural heritage specifically, . . . people cannot enjoy culture without accessing and enjoying cultural heritage’.145 Unlike specialist instruments dealing with indigenous peoples, the UN Minorities Declaration primarily concentrates on access to measures for the protection of language. It stipulates that States should where possible provide ‘adequate opportunities to [persons belonging to minorities] to learn their mother tongue or to have instruction in their mother tongue’.146 The commentary notes that ‘language is among the most important carriers of group identity’.147 135   See Lubicon Lake Band (Bernard Ominayak) v Canada, No 167/1984, UN Doc A/45/40 (1990), Pt 2, 1, para 32(1); and I Länsman v Finland, No 511/1922, UN Doc CCPR/52/D/511/ 1992, and No 671/1995, UN Doc CCPR/C/58/D/671/1995. 136   General Comment No 23 (n 126), para 6(2). 137   Article 2, UN Minorities Declaration. 138   Article 3, ibid. 139   Article 1, ibid; and UN Doc E/CN.4/Sub.2/AC.5/2005/2, para 14. 140   UN Doc E/CN.4/Sub.2/AC.5/2005/2, p 5, para 14. 141   General Comment No 23 (n 126), paras 6(1), 6(2) and 9. 142   Article 2(1), UN Minorities Declaration. 143   UN Doc E/CN.4/Sub.2/AC.5/2005/2, 8, para 33. 144   Article 8(3), UN Minorities Declaration. 145   UN Doc A/HRC/17/38, para 37. 146   Article 4(2), UN Minorities Declaration. 147   UN Doc E/CN.4/Sub.2/AC.5/2005/2, para 59.

  Human Rights and Cultural Heritage in International Law  163 Whilst indigenous peoples have consistently rejected their categorization as ‘minorities’ arguing that their plight is distinguishable because of differing historical circumstances, the articulation of cultural rights applicable to indigenous peoples in international instruments borrows heavily from Article 27 ICCPR. In turn, its subsequent interpretation and elaboration by these communities provides a fuller understanding of access to cultural heritage pursuant to this right. The 2007 UN Declaration and International Labour Organization (ILO) Convention No 169 of 1989 provide a glimpse into the reworking of cultural rights to reflect the concerns of indigenous peoples. In its Preamble, ILO 169 recognises: ‘[T]he aspirations of these peoples to exercise control over their own institutions, ways of life . . . to maintain and develop their identities, languages and religions, within the framework of the states in which they live.’148 ILO 169 acknowledges the collective right of indigenous and tribal peoples to preserve and develop their cultural identity.149 UNDRIP specifically addresses the cultural rights of indigenous peoples. Originally contained in Part III entitled ‘cultural rights’, Articles 11 through 13 of the Declaration correspond to the typology of Article 27 ICCPR. Extrapolated to reflect the concerns of indigenous peoples: Article 11 covered enjoyment of culture including ‘right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature’;

Article 12 concerns profession and practice of religion including ‘right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to repatriation of their human remains’; and

Article 13 related to use of language which includes ‘the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures and to designate and retain their own names for communities, places and persons.’

In addition, related provisions covering education, media, land, resources and cultural heritage reinforce these cultural rights and through the inclusion of terms like ‘control’ strengthen indigenous claims to autonomy in respect to cultural matters.150 General Comment No 23 affirms that protection of rights pursuant to Article 27 ICCPR to ensure the survival and development of minority

  Fifth recital, Preamble, ILO 169 (emphasis added).   See fifth recital, Preamble, and Articles 2(2)(b) and (c), 4, 5, 7, 23, 26–31, ILO 169. 150   See Articles 14–15 (education), 16 (media), 26 (land), 31 (traditional knowledge) and 34 (customary law), UNDRIP (n 107). 148 149

164  Ana Filipa Vrdoljak cultures is for the benefit of these communities and the entire society.151 The rationale for ensuring the continuation of the diverse cultural, religious and linguistic identities within and across States and the corresponding rejection of past national assimilation policies has been explicitly reiterated by the United Nations and related bodies.152 The commentary to the UN Minorities Declaration confirms that ‘elimination is illegal’ and ‘forced assimilation is unacceptable’. However it notes that a certain degree of integration is required to enable the State to ‘respect and ensure human rights to every person within its territory without discrimination’. The purpose of minority protection becomes ‘ensur[ing] that integration does not become unwanted assimilation or undermine the group identity of persons living on the territory of States’.153 It adds that to achieve this aim: Minority group identity requires not only tolerance but a positive attitude towards cultural pluralism on the part of the State and the larger society. Not only acceptance but also respect for the distinctive characteristics and contribution of minorities to the life of the national society as a whole are required. . . .154

The prohibition against forced assimilation encompasses the acts of the State and those of third parties. The Council of Europe’s Framework Convention on National Minorities contains a similar prohibition against ‘forced’ assimilation, whilst its explanatory report makes clear that ‘voluntary’ assimilation is not prohibited.155 It too acknowledges the potentially positive role of official integration policies for ‘social cohesion’ and promotion of ‘cultural diversity’, which is ‘a source and a factor, not of division, but of enrichment of each society’.156 These concerns are replicated explicitly in multilateral instruments covering indigenous peoples. The 2007 UN Declaration states that indigenous peoples have a right to ‘maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State’.157 It specifically provides that indigenous peoples and individuals have a right not to be subject to ‘forced assimilation or destruction of their culture’. Pursuant to this right, States should provide mechanisms to prevent and enable redress for forced assimilation and acts which deprive them of their cultural identity, dispossess them of their   General Comment No 23 (n 126), para 9.   Article 1(1), UN Minorities Declaration. 153   UN Doc E/CN.4/Sub.2/AC.5/2005/2, para 21. 154   Ibid, para 28. 155   Article 5(2), Framework Convention for the Protection of National Minorities, ETS No 157 of 1 February 1995; and Explanatory Report to the Framework Convention for the Protection of National Minorities, paras 42–46. 156   Ibid. 157   Article 5 UNDRIP (n 107). 151 152

  Human Rights and Cultural Heritage in International Law  165 lands or resources, force population transfers, or propaganda which incites racial discrimination.158 The prohibition against assimilation is complemented by provisions covering self-identification and the individual right to exit the group. The UN Minorities Declaration provides under Article 3(2) that there shall be ‘no disadvantage . . . for any person belonging to a minority as a consequence of the exercise or non-exercise of rights set forth in the present Declaration’. The related commentary elaborates that this provision prohibits States from imposing an ethnic identity on individuals through sanctions against those that refuse to form part of that group as occurred during Apartheid in South Africa.159 The provision also implies at least ‘moral duties’ for ‘agencies of the minority group’, with States Parties obliged to prohibit minorities from taking measures which impose rules on persons who do not wish to be part of the minority nor exercise their related rights.160 Similarly, General Comment No 21 defines it as a ‘freedom’. The CESCR has noted that: [t]he decision by a person whether or not to exercise the right to take part in cultural life individually, or in association with others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality.

The CESCR has held that this was a right of special importance for indigenous peoples, individually and collectively.161 In a similar vein, Article 9 UNDRIP provides that indigenous peoples and individuals have the right to belong to an indigenous community in accordance with the community’s traditions and customs. No discrimination is permissible in respect of the exercise of this right. Furthermore, under Article 33, indigenous peoples have a right to ‘determine their own identity or membership in accordance with their customs and traditions’. This does not impact upon the right of indigenous persons to obtain the citizenship of their relevant State. Yet, conflicts may arise between the collective and individual rights to self-identification. In Lovelace v Canada, HRC found the State in violation of Article 27 ICCPR because the relevant national legislation, Indian Act, had stripped Ms Lovelace of her Indian status following her marriage to a non-Indian, which remained even after her relationship ended, and meant that she could not return to her tribal land. The respondent State conceded in its national report that the law ‘required serious reconsideration and reform’ not the least because of its discrimination between women and men. However the legislation was ‘designed to protect the Indian minority’ and it could only be amended in consultation   Article 8 ibid.   UN Doc E/CN.4/Sub.2/AC.5/2005/2, para 54. 160   Ibid. 161   General Comment No 21 (n 83), paras 6 and 7. 158 159

166  Ana Filipa Vrdoljak with the community itself, which was divided on reform.162 The Committee acknowledged the ‘need to define the category of peoples entitled to live on a reserve, for such purposes as those explained by the Government regarding . . . preservation of the identity of its people.’163 However, it concluded that the denial of Ms Lovelace’s right to access her culture and language ‘in community with other members’ of her group was not ‘reasonable or necessary’, to achieve the stated aim of the legislation.164 Human rights instruments in which cultural rights are located reaffirm that they cannot violate existing human rights norms and fundamental freedoms.165 The commentary to the UN Minorities Declaration noted that ‘cultural or religious practices which violated human rights law should be outlawed for everyone’, so that the qualification was of universal application, to minorities and the majority alike.166 Article 8(2) of the Declaration provides that agencies of the minority cannot interfere with the human rights of individual members of the group in order to preserve their collective identity. The CESCR has indicated a similar position in respect of Article 15 ICESCR stating that: ‘[N]one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope’.167 It has found that States Parties shall be in violation of their obligations if they fail to take steps to combat harmful practices which are attributed to custom and tradition like ‘female genital mutilation and allegations of the practice of witchcraft’, which the Committee terms ‘barriers to the full exercise by the affected persons’ of their rights under this provision.168 Likewise, recent cultural heritage instruments intended to protect and promote cultural diversity invariably include a ‘saving’ provision. Provisions guaranteeing cultural diversity cannot be invoked as a justification for violation of human rights and fundamental freedoms protected by the international and regional human rights instruments.169 In Interights on behalf of Safia Yakubu Husaini et al/Nigeria, the African Commission on Human and Peoples’ Rights was asked to consider a complaint arising from   Lovelace v Canada (n 132), para 5.   Ibid, para 15. 164   Ibid, paras 15 and 17. 165   For example, 18th recital, Preamble, 1976 UNESCO Recommendation; Articles 4(2) and 8(2) UN Minorities Declaration; and Article 46(2) UNDRIP (n 107). General Comment No 21 (n 83), para 17, provides that States are obliged to implement Article 15 ICESCR together with other obligations under the covenant ‘in order to promote and protect the entire range of human rights guaranteed under international law’. Previously, the CESCR has reiterated that: ‘[N]o one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope’: General Comment No 21, para 18. 166   UN Doc E/CN.4/Sub.2/AC.5/2005/2, para 57. 167   General Comment No21 (n 83), paras 18 and 20. 168   Ibid, para 64. 169   Article 4, Cultural Diversity Declaration; Article 2(1), Intangible Heritage Convention; and Article 2, Cultural Diversity Convention. 162 163

  Human Rights and Cultural Heritage in International Law  167 the operation of penal legislation and Sharia Courts in northern Nigeria.170 It was alleged that these laws ‘lowered the standards of fair trial’ including limiting the rights to legal representation to lawyers of the Muslim faith and installing the special Sharia Courts of Appeal as the last appellate body rather than the Nigerian Supreme Court. They were only applicable to persons of the Muslim faith. The complainant alleged that the discriminatory application of these laws and legal process to persons of one faith was a violation of Nigeria’s obligations concerning non-discrimination, fair trial and due process under the African Charter of Human and Peoples’ Rights.171 A margin of appreciation is given to the States Parties in the implementation of these guarantees depending on the circumstances prevailing in its territory. The CESCR in respect of Article 15 ICESCR has observed that a State may need to impose limitations on the right to participate in cultural life, especially in respect of ‘negative’ practices which infringe other human rights.172 These limitations must pursue a ‘legitimate aim’, be ‘compatible’ with the right and ‘strictly necessary for promotion of the general welfare in a democratic society’, and proportionate (that is, the least restrictive measures for attaining the ends).173 In respect of a similar qualification in the UN Minorities Declaration, its commentary provides that, whilst having consideration for the conditions within the particular State, the prohibitions shall be respected as long as they are ‘based on reasonable and objective grounds’.174 The CESCR has noted that States when adopting such measures must ensure protection for related rights, including the right to privacy, freedom of thought, conscience or religion, freedom of opinion and expression, to peaceful assembly and freedom of association.175 The ongoing debate concerning HRC resolutions on Combating Defamation of Religions promoted by the Organization of Islamic Conference and domestic blasphemy laws in States like Pakistan and Qatar illustrate the intersection between the rights of a group, in this case a religious group, and individual human rights like those listed by the Committee.176 The HRC in   269/03, Decision, ACHPR, 27 April 2005.   African Charter on Human and Peoples’ Rights (Banjul Charter), 27 June 1981, in force 21 October 1986, OAU Doc CAB/LEG/67/3 rev. 5, ILM 1982, p 58. 172   UN Doc E/C.12/GC/21, para 19. 173   Article 4 ICESCR. See also ECHR decisions including Case of Dogru v France, application no 27058/05, ECHR Chamber, Merits, Judgment of 4 December 2008. Cf Case of Lautsi v Italy, application no 30814/06, ECHR Grand Chamber, Merits, Judgment of 18 March 2011. 174   UN Doc E/CN.4/Sub.2/AC.5/2005/2, para 58. 175   UN Doc E/C.12/GC/21, para 19. 176   HRC Resolutions 2000/84, 26 April 2000 (‘Defamation of religions’) to the latest 16/18, 24 March 2011 (‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief’); Report of the UN High Commissioner for Human Rights on the implementation of Human Rights Council Resolution 10/22 entitled ‘Combating defamation of religions’, 11 January 2010, UN Doc A/HRC/2010; and Kasem Said Ahmad and Asmaa Abdol-Hamid v Denmark, Communication No 1487/2006, Human Rights Committee Admissibility, 1 April 2008, CCPR/C/92/D/1487/2006. 170 171

168  Ana Filipa Vrdoljak its General Comment No 34 on freedoms of opinion and expression has observed that ‘prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’ except where they are designed to prevent incitement to war or ethnic or religious discrimination or hostility.177 C.  Cultural Diversity as a Common Good Evolving interpretations of cultural rights (Article 15 ICESCR, Article 27 ICCPR) in the closing decades of the twentieth century were often accompanied by the articulation of the importance of cultural diversity in various international fora and multilateral instruments. The UNESCO Declaration of Principles of International Cooperation adopted in 1966 provided that: ‘In their rich variety and diversity, and in their reciprocal influences they exert on one another, all cultures form part of the common heritage of all mankind.’178 By the beginning of the twenty-first century, several specialist multilateral declarations had been adopted on cultural diversity.179 The 2001 UNESCO Universal Declaration on Cultural Diversity reiterates: Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.180

Cultural diversity has been promoted as a common good for a range of reasons including its importance to peace and stability,181 progress and 177   General Comment No 34, Freedom of Opinion and Expression, 21 July 2011, UN Doc. CCPR/C/GC/34, para 48. See also Concluding Observation on the United Kingdom of Great Britain and Northern Ireland, 27 March 2000, CCPR/C/79/Add.119, para 15; and Concluding Observations on Kuwait, HRC, 27 July 2000, CCPR/CO/69/KWT, para 20. 178   Article 1(3), UNESCO Declaration of Principles International Cooperation (1966 UNESCO Principles), resolution adopted on General Conference, 4 November 1966. 179   Universal Declaration on Cultural Diversity, adopted by UNESCO General Conference, 2 November 2001; Declaration on Cultural Diversity, adopted by Council of Europe, Committee of Ministers, 7 December 2000; Charter for African Cultural Renaissance, adopted by African Union at Sixth Ordinary Session, 24 January 2006; and Declaration on ASEAN Unity in Cultural Diversity: Towards Strengthening ASEAN Community, adopted by the Ministers responsible for Culture and Arts of ASEAN Member States, 17 November 2011. 180   Article 1, 2001 UNESCO Declaration. See also Third recital, Preamble, UNDRIP; First recital, Preamble, CoE Declaration; and Fifth recital, Preamble, and Article 5(1), 2006 African Charter. Cf Third recital, Preamble, ASEAN Declaration. 181   Second recital, Preamble, 1966 UNESCO Declaration; Second recital, Preamble, 1976 UNESCO Recommendation; Second and seventh recitals, Preamble, 2001 UNESCO Declaration; Fifth recital, Preamble, 2006 African Charter; Fifth recital, Preamble, ASEAN Declaration; Sixth and seventh recitals, Preamble, UN Minorities Declaration; Fifth recital, Preamble, CoE Framework Convention.

  Human Rights and Cultural Heritage in International Law  169 prosperity,182 and full realization of human rights and fundamental freedoms and a democratic society.183 These specialist instruments on cultural diversity have recognized the importance of protection and promotion of cultural rights for the realization and maintenance of cultural diversity; and correspondingly, human rights instruments and bodies have acknow­ ledged the importance of cultural diversity.184 These specialist instruments on cultural diversity have also underscored the importance of effective protection, promotion and access to cultural heritage.185 Given the emphasis on cultural diversity, it is not surprising that the milieu which has realized these instruments has also witnessed the adoption of the first specialist instruments for the protection of intangible heritage and that these treaties in turn explicitly affirm the importance of cultural diversity.186 However, the rationale and application of long-standing cultural heritage instruments on the protection of tangible heritage are also being revisited and reinterpreted.187 The trial of defendants involved in the shelling of the Old Town of Dubrovnik during the Yugoslav conflicts provides a telling example of this process as it relates to protection afforded to cultural heritage under the 1954 Hague Convention (and the 1972 World Heritage Convention). During their sentencing for war crimes against cultural property, the Trial Chamber of the ad hoc International Criminal Tribunal for the former Yugoslavia found that ‘this crime represents a violation of values especially protected by the international community’.188 In Jokić, the Trial Chamber held that while ‘it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site’.189 A site once destroyed could not be returned to 182   Fifth recital, Preamble, 1966 UNESCO Declaration; Fourth recital, Preamble, 1976 UNESCO Recommendation; Sixth recital, Preamble, and Article 3, 2001 UNESCO Declaration; CE Declaration generally; Fifth recital, Preamble, 2006 African Charter; Sixth recital, Preamble, and Part 3, ASEAN Declaration; Sixth and seventh recitals, Preamble, UN Minorities Declaration. 183   Third recital, Preamble, 1966 UNESCO Declaration; 23rd recital, Preamble, 1976 UNESCO Recommendation; Fourth recital, Preamble and Articles 2 and 5, 2001 UNESCO Declaration; Fourth recital, Preamble, CoE Declaration; and Paragraph 4, ASEAN Declaration; and Sixth and seventh recitals, Preamble, CoE Framework Convention. 184   Articles 4 and 5, 2001 UNESCO Declaration; and Article 5(1), 2006 African Charter; Third recital, Preamble, UNDRIP; and General Comment No 21 (n 83), para 40. 185   Articles 6 and 7, 2001 UNESCO Declaration; Parts IV–V, African Charter; and Art 5(2) ASEAN Declaration. 186   Second and sixth recitals, Preamble, Intangible Heritage Convention; and first and second recitals, Preamble, UNESCO Cultural Diversity Convention. 187   See for example the inclusion of cultural landscapes generally and associative cultural landscapes in particular within the operation of the World Heritage Convention. Inscription of the latter on the World Heritage List is determined because of its ‘powerful religious, artistic or cultural associations of the natural element rather than material cultural evidence’: WHC-92/CONF.002/12. 188  ICTY, Prosecutor v Jokić, No IT-01-42/1-S, Trial Chamber I, Judgment of 18 March 2004, para 46. 189   Ibid, para 53.

170  Ana Filipa Vrdoljak its original status.190 It found that the attack on Dubrovnik was exacerbated because it was a ‘living city’ and ‘the existence of the population was intimately intertwined with its ancient heritage’.191 The 1954 Hague Convention’s rationale is contained at the commencement of its Preamble which states: ‘[D]amage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world, . . .’.192 For the first time in a multilateral instrument there is reference in the 1954 Hague Convention to ‘cultural heritage’ rather than ‘cultural property’.193 It points to its intergenerational importance, an aspect reaffirmed by a resolution adopted at the first meeting of the High Contacting Parties to the Convention which noted that ‘the purpose of the Convention . . . is to protect the cultural heritage of all peoples for future generations’.194 The Preamble also deliberately refers to ‘peoples’ rather than ‘States’. The UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage was adopted in response to increased acts of deliberate destruction of cultural heritage, including the Buddhas of Bamiyan in 2003.195 It reiterates that ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.196 It is significant that Africa and Europe, two continents which have been riddled with violent ethnic and religious conflict in recent decades, have adopted multilateral framework conventions focusing on the promotion of cultural diversity and human rights, and heralding a reinterpretation of the protection of cultural heritage.197 The Charter for African Cultural Renaissance (2006 African Charter) adopted by the African Union in 2006,198 and the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) of 2005,199 together with 2000 ASEAN Declaration on Cultural Heritage,200 and the work of the UN Independent Expert on Cultural Rights concerning access to cultural her  Ibid, para 52.   Ibid, para 51. 192   Second and third recitals, Preamble, 1954 Hague Convention. 193   UNESCO Doc 7C/PRG/7, Annex II, p 20. 194   UNESCO Doc CUA/120, para 22. 195   UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (n 22). 196   Fifth and sixth recitals, Preamble, Intentional Destruction Declaration. 197   See for example, Explanatory Report for Council of Europe Framework Convention on the Value of Cultural Heritage for Society (CETS No 199). 198  Replacing the Cultural Charter for Africa, adopted by the Organization of African Unity, 15 July 1976. 199   Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro Convention), 27 October 2005, ETS No 199. See also the Council of Europe, European Cultural Charter, adopted in Paris on 19 December 1954, ETS No 18. 200   ASEAN Declaration on Cultural Heritage, Bangkok, 25 July 2000. 190 191

  Human Rights and Cultural Heritage in International Law  171 itage, have the potential to have a transformative impact on our understanding of cultural heritage and its legal protection at the multilateral level, from previous emphases on States and national cultures to human rights and cultural diversity.201 The intent is not to serve to promote unity within a State by bolstering protection of the national cultural identity. Instead, the purpose is a culture within society (regional, national, local) which fosters intercultural and intergenerational dialogue and understanding and respect for human rights.202 And this in turn is underpinned by an acknowledgement that this can only be achieved through multilateral cooperation.203 The Faro Convention recognizes the ‘need to put people and human values at the centre of an enlarged and cross-disciplinary concept of cultural heritage’.204 The African Charter provides that ‘all the cultures of the world are equally entitled to respect just as all individuals are equal as regards free access to culture’.205 The elaboration of two characteristics of these instruments will serve to highlight this distinctive human rights focused approach to the international protection of cultural heritage. First, States are no longer the primary holders of rights (and obligations). Instead, they are replaced by communities, groups and individuals. The Faro Convention recognizes that the right to participate in cultural life includes rights to cultural heritage which entail individual and collective rights and responsibilities.206 It acknowledges that everyone, individually or collectively, has a right to benefit and contribute to cultural heritage, subject to restrictions necessary for a democratic society for the protection of public interest or the rights and freedoms of others. Conversely, they have an obligation, individually or collectively, to ‘respect the cultural heritage of others as much as their own heritage, and consequently the common heritage of Europe’. The 2006 African Charter similarly acknowledges the rights and obligations of non-State actors with references to ‘all citizens’, ‘minorities’, ‘peoples’, ‘nations’, ‘national and regional identities’, as well as ‘men and women’, ‘youth’, ‘elders and traditional leaders’, ‘marginalized and underprivileged communities’ and ‘artists’.207 Second, these instruments are intended to be read in conjunction 201   Even though both are multilateral instruments intending to promote cooperation on their respective continents, Parts II and III, 1976 African Charter; and Article 1, Faro Convention, reflect a statist approach to rights and obligations. The 2000 ASEAN Declaration still has a strong State based approach. Cf for example, Articles 1 and 2. 202   Fifth recital, Preamble, 2006 African Charter; and first and sixth recitals, Preamble, Faro Convention. See also Article 2 UNESCO Diversity Declaration; and 11th recital, Preamble, Article 1, 2000 ASEAN Declaration; and General Comment No 21 (n 83) para 50(a). 203  Eighth recital, Preamble, Faro Convention; sixth recital, Preamble, 2006 African Charter; and 10th recital, Preamble, 2000 ASEAN Declaration. 204   Second recital, Preamble, Faro Convention. See also fourth recital, Preamble, 2000 ASEAN Declaration. 205   Third recital, Preamble, 2006 African Charter. 206   Articles 1 and 4, Faro Convention. See Articles 3, 8 and 14, 2000 ASEAN Declaration; and UN Doc A/HRC/17/38, paras 61–63. 207   Articles 4 and 5 and Part III, 2006 African Charter.

172  Ana Filipa Vrdoljak with existing rights and obligations contained in international conventions and declarations for the protection of cultural heritage.208 Consequently, these existing treaty obligations are reinforced by a distinct human rights dimension. This is reflected in the integration of cultural heritage protection and promotion into aims including cultural diversity, ethics and dialogue between communities,209 and environmental protection, sustainable use, and economic development,210 and processes including shared responsibility and public participation, access and democratic participation, and knowledge and information-sharing.211 IV.  CONCLUSION

In the decades after the Second World War, States, especially newly independent States, relied heavily on effective national cultural policies to inculcate a unified, collective identity amongst its citizenry. In so doing, they borrowed from the centralizing, standardizing and assimilatory policies and practices of former metropolitan powers that had also sought to unify (and subdue) a diverse populace. It is not surprising then, that they strongly resisted any efforts within the international sphere, which scrutinized and curbed assimilatory practices. Nor is it revelatory that inter­ national law protections for cultural heritage have long betrayed a bias for States and national cultures. Yet, by the late twentieth century this emphasis was no longer sustainable as it became accepted that ‘cultures have no fixed borders’.212 It became increasingly clear that the period from 1945 to 1989 which witnessed reliance on non-discrimination and civil and political human rights, and the underdevelopment of minority protections and cultural human rights, did not make ethnic and religious diversity disappear nor dampen the level of violent conflicts within and across States. In the intervening period, the international community has become aware and acknowledged that cultural diversity must be addressed as a source of peace and stability rather than a cause of civil strife. This recent development which has evolved through the prism of human rights discourse is distinct from earlier examples of minority protection and protection of cultural heritage in international law. Minority protections are part 208   See Second recital, Preamble, 2006 African Charter; and Seventh recital, Preamble, Faro Convention. 209   Article 7 Faro Convention. See also recitals 11, 12 and 13, Preamble, and Articles 2, 6, and 7, 2000 ASEAN Declaration. 210   Articles 8, 9 and 10, Faro Convention; Parts II and III, 2006 African Charter; and Ninth recital, Preamble and Articles 8-14, 2000 ASEAN Declaration. 211   Section III, Faro Convention; Part III, 2006 African Charter; and Second recital, Preamble, 2000 ASEAN Declaration; and UN Doc A/HRC/17/38, paras 64–72. 212   General Comment No 23 (n 126), para 41.

  Human Rights and Cultural Heritage in International Law  173 of and subject to general human rights protections. This has entailed an acknowledgement of the importance of communal identities (beyond the State) for individuals, reflected in the elaboration and reinterpretations of existing cultural human rights (including Article 15 ICESCR, Article 27 ICCPR). In turn, there is a reinforcement of the notion that all groups, not just States, must not infringe human rights and fundamental freedoms. These processes have been complemented by an evolution in the protection of cultural heritage by the international community, with the distinct movement away from the dominance of national interests to its protection as a means of ensuring the contribution of each people. This shift is reflective of the increased recognition of cultural diversity as a common good for humanity generally which has entailed a broadening of our understanding of cultural heritage and has the potential to reconfigure rights and obligations under existing multilateral instruments for the protection of cultural heritage going into the future.

8 The Cultural Dimension of the Rights of Indigenous Peoples SIEGFRIED WIESSNER*

I

I.  THE PROBLEM

NDIGENOUS PEOPLES ARE defined by their culture, their ways of life, their traditions, and their specific, often spiritual relationship with their land. They have been subjected to various attempts at annihilation – physical and cultural – sometimes reaching the extremes of genocide and ethnocide. Motivating forces have been the quest for power, greed, feelings of cultural superiority, and urges to help indigenous people move to perceivedly higher levels of civilization. The siren song of progress, with all its comforts, also contributed to the maelstrom in which indigenous populations appeared to vanish. They have been driven from many of their traditional lands; often they have lost their most characteristic feature, their language, as every year 5000 languages die. Still, indigenous peoples have not disappeared. They have adapted, gone underground, but their spirit, their collective will to unity, their culture persisted. From the graves of termination and assimilation, the traps of strategies of divide and conquer, in the last half century they rebounded, united within and across borders, and laid their claim to self-determination aimed not only at the survival, but the development and flourishing of their traditional ways of life, their identity. This quest for re-strengthening, for finding their own voice, their life again, was couched in the terminology of valuesbased post-World War II international law: self-determination and human rights, responding to the moral outrages of colonization and the Holocaust. Neither of these conceptual shoes quite fit, as they had a slightly different *   The author expresses his deep appreciation to our honouree, Professor Francesco Francioni, for inviting him to serve as Fernand Braudel Fellow at the European University Institute (EUI) in the fall of 2009, to enter into a vivid inter-jurisprudential dialogue in his EUI seminar, and to teach in the 2011 Academy of European Law. His friendship will be forever treasured.

176  Siegfried Wiessner grounding: beneficiaries of the principle of self-determination as remedy to colonization were, in the practice of the UN, and somewhat contrary to the wording of its Charter, not the ‘peoples’ subjugated by the colonizers, but, under the principle of uti possidetis, the inhabitants of the territories as bounded by the colonizers; human rights were typically to be held by individuals, not by peoples or groups, following the tradition of the French and American bills of rights. Indigenous people, to be sure, had individual needs and aspirations that were to be met by the universal, regional and domestic human rights regimes. Their main concern, however, was about their survival and flourishing as a community, the continuity of their traditions as they defined and developed them. In short, they asked to be able, through the legal system, to retain and develop their culture, as they conceived of it. As these claims were typically tied to their land, and as they involved recognition of their systems of authority and control, they ran into resistance from stakeholders in modern society who often misunderstood this cultural dimension of indigenous peoples’ claims as essential threats to their existence, assets and prospects. I will analyze briefly those conflicting claims (II) before presenting the responses the processes of international law have found to date, from domestic State practice and opinio juris, resulting in customary inter­ national law, to conventional prescriptions and the 2007 United Nations Declaration on the Rights of Indigenous Peoples as well as institutional innovations such as the Permanent Forum on Indigenous Issues (III), making brief predictions of future decisions in the field (IV), and appraising the past and predicted decisions in light of a world order of human dignity, inventing alternatives and suggesting solutions to this problem that are in the common interest of all humankind. II.  CONFLICTING CLAIMS, CLAIMANTS, IDENTIFICATIONS, PERSPECTIVES AND BASES OF POWER

Starting with colonization, indigenous peoples have been subjected to physical and cultural aggression for more than half a millennium. While open genocides and individual massacres receded slowly from the public eye, intentional and unintended attacks on the culture of indigenous peoples persisted. There were open policies of termination of existing tribes, coupled with nearly universal attempts at creating unicultural nations whose modern ideas of progress the cultures of indigenous peoples had to subordinate themselves to, to the point of self-annihilation. The conqueror’s way of life was imposed. Indigenous peoples’ use of their languages was severely sanctioned, often in boarding schools of the majority population. The conqueror took away the land that indigenous peoples,

  The Cultural Dimension of Indigenous Rights  177 in line with their cosmovision, had freely shared. Their political autonomy was drastically curtailed. As a result, they were often relegated to extreme poverty, disease, and despair. Most importantly, however, their view of the world itself, their cosmovision or ‘inner world’, was under existential attack. As Michael Reisman has explained, these inner world cosmovisions, or introcosms, are the central, vital part of the individuality of each of us. This is, to borrow Holmes’ wonderful phrase, ‘where we live’. Respect for the other requires, above all, respect for the other’s inner world.1

As to indigenous peoples, ‘it is the integrity of the inner worlds of peoples – their rectitude systems or their sense of spirituality – that is their distinctive humanity. Without an opportunity to determine, sustain, and develop that integrity, their humanity – and ours – is denied.’2 Five basic claims of indigenous peoples arose from this condition: (1)  traditional lands should be respected or restored, as a means to their physical, cultural, and spiritual survival; (2)  indigenous peoples should have the right to practice their traditions and celebrate their culture and spirituality with all their implications; (3)  they should have access to welfare, health, educational, and social services; (4)  conquering nations should respect and honour their treaty promises; and (5)  indigenous nations should have the right to self-determination. Self-determination was the banner-cry under which the renascent indigen­ ous peoples united worldwide. It was the first in the foundational Declaration of Principles adopted by the Fourth General Assembly of their first global organization, the World Council of Indigenous Peoples, proclaimed in Panama in September 1984.3 Up to the present day, this claim, however, in virtually all cases, did not include a quest for political independence or secession. The most recent case of arguably attempted secession by an indigenous people, the declaration of independence of Azawad in northern Mali, was issued by a faction of the Touareg, not the entire group.4 It has found no resonance in the world community of States, 1   Reisman WM, ‘International Law and the Inner Worlds of Others’ (1996–97) St Thomas Law Review 25 ff, 26. 2   Ibid, 33. 3   Declaration of Principles Adopted by the Fourth General Assembly of the World Council of Indigenous Peoples in Panama, September 1984, Principle 1, reprinted in Charters C and Stavenhagen R (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, 2009) 48 ff, 49 [hereinafter: Making the Declaration Work]. 4   On 6 April 2012, the ‘Executive Committee’ of the National Movement for the Liberation of Azawad, consisting mostly of Touareg people, declared the independence of ‘Azawad’, the north-eastern part of Mali, from the Republic of Mali, ‘based the principles of international law

178  Siegfried Wiessner and the Islamist movement of their former ally Ansar Dine, itself not interested in political independence, but in strict application of their interpretation of Sharia law, ousted them in a June 27, 2012 battle from all the cities of northern Mali,5 including Gao and Timbuktu. In a multicultural global community, indigenous peoples’ value systems and world views, deeply spiritual, are at the centre of their demands. Jaime Martínez Luna, a Zapotec anthropologist, made this important point: The need to survive causes us to view everything from a materialistic perspective. . . . But here is where the difference from indigenous thinking springs forth. Comunalidad is a way of understanding life as being permeated with spirituality, symbolism, and a greater integration with nature. It is one way of understanding that human beings are not the center, but simply a part of the great natural world. It is here that we can distinguish the enormous difference between Western and indigenous thought.6

The goal of self-determination is thus primarily claimed as respect for local and internal self-government, what is called ‘internal’, rather than ‘external self-determination’. It is not concerned with setting up embassies abroad or an effective military machinery. In the words of revered Indian leader Vine Deloria, indigenous sovereignty ‘consist[s] more of a continued cultural integrity than of political powers and to the degree that a nation loses its sense of cultural identity, to that degree it suffers a loss of sovereignty.’7 and the principle [sic] international legal instruments governing the right of peoples to selfdetermination, particularly Articles 1 and 55 of the United Nations Charter, and the relevant provisions of the international Declaration of the Rights of Indigenous Peoples.’ Azawad Declaration of Independence, 6 April 2012, (‘[r]ecalling the massacres, the atrocities and abasement, the plundering and genocide of 1963, 1990, 2006, 2010 and 2012, which targeted exclusively the people of AZAWAD up until 1 April 2012; [and re]calling the inhumane conduct of Mali, which utilized the various droughts (1967, 1973, 1984, 2010, etc.) to eradicate our people by devastation even as it sought and obtained generous humanitarian support’) (last seen on the Internet on 1 June 2012; as of 8 October 2012 the French version is still available at ). 5   ‘Islamists Declare Full Control of Mali’s North’, Reuters, 28 June 2012, at . As to Ansar Dine, see ‘Mali Islamists Want Sharia Not Independence’, AFP, 20 June 2012, at . Lamentably, Ansar Dine proceeded to destroy mausoleums of Muslim holy men and other world heritage sites in the ancient trading post of Timbuktu, the ‘city of 333 saints’. ‘Timbuktu’s Destruction: Why Islamists are Wrecking Mali’s Cultural Heritage’, Time, 2 July 2012, at . 6   Martínez Luna J, ‘The Fourth Principle’ in Meyer L and Maldonado Alvarado B (eds), New World of Indigenous Resistance (San Francisco, 2010) [hereinafter Indigenous Resistance] 85 ff, 93–94. 7   Deloria V Jr, ‘Self-Determination and the Concept of Sovereignty’ in Wunder JR (ed), Native American Sovereignty (New York, 1996) 118 ff.

  The Cultural Dimension of Indigenous Rights  179 Again, here, the cultural dimension grounds and bounds the indigen­ ous quest for self-determination. The details of what powers are claimed to be left to indigenous peoples and which ones to the States on whose territories they reside, may differ from people to people, and context to context. There is the very rare context of indigenous peoples who desire no contact at all with the modern world, such as the Ayoreo in the remote North of the Chaco of Paraguay.8 Most indigenous peoples have entered into contact, voluntarily or not, and their claims range from more or less wide-ranging self-rule in accordance with their traditions and institutions, including tribal systems of justice, to the full range of governmental powers over their territory, similar to that of a composite entity (‘State’ or ‘province’) in a federal union. Their claims to their land are also grounded in their typically spiritual relationship to what they call ‘Mother Earth’ or ‘Madre Tierra’, signifying a seamless web of sustenance, both physical and mental, since time immemorial. The indigenous peoples’ claims to self-determination and to their traditional lands were the ones that have been met with the most resistance by States. These claims, in 2006, prompted the Member States of the African Union to temporarily block the passage of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the UN General Assembly pending clarification on these rights.9 The logjam was broken with the addition of preambular provisions that allowed for differential application of the Declaration in different contexts, and a clarification, similar to Article 2(4) of the UN Charter, that self-determination may not threaten the territorial integrity or political independence of States. Thus the States’ fear of the spectre of secession – not a typical claim of indigenous peoples in the first place – was allayed. The claimed communal rights to land may run against the vested rights of landholders in certain States, or the rights of investors, protected under bilateral investment treaties, as in the case of German agricultural interests 8   For brief details on their life, see the video produced by Survival International, Uncontacted Chaco, . See also Vidal J, ‘Natural History Museum Expedition “Poses Genocide Threat” to Paraguay Tribes’, The Guardian, 8 November 2010, . 9   The African positions regarding UNDRIP are well described in van Genugten W, ‘Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems’ (2010) American Journal of International Law 29 ff, 34. The African group’s initiative in the Third Committee was spearheaded by Namibia who had concerns about a possible encouragement for a secessionist movement on its territory claiming the status of an indigenous people. Other concerns included land rights, as in the case of Kenya and Nigeria (both countries ended up abstaining in the final vote in the General Assembly). Barume AK, ‘Responding to the Concerns of the African States’ in Making the Declaration Work (n 3) 170 ff. Ultimately, Africa ‘voted almost en masse for the Declaration’. Kipuri N, ‘The UN Declaration on the Rights of Indigenous Peoples in the African Context’ in Making the Declaration Work (n 3) 252 ff, 261.

180  Siegfried Wiessner facing indigenous claims in Paraguay. Mining companies might, and do, object to the limitation of their licensed rights to explore and exploit valuable resources in lands considered sacred by indigenous peoples. There are also objections to the worldview of indigenous peoples as standing in the path of progress. Cost-benefit oriented theories of decision making have a hard time quantifying spirituality. Adherents of ideologies less interested in maximising individual profit, but in spreading the wealth across those who need it, also may not see the transcendent spiritual value of lands safeguarded for the use of indigenous peoples, while other communities, in equal material need for the land’s resources, do not receive the benefit of an international legal right. The latter, poor, nonindigenous communities, however, are not as existentially dependent on the particular piece of land at issue as indigenous peoples are10; they can be helped in other ways than by according rights to a specific area of land, eg by granting them the benefits of individual social and economic rights. Recently, the rights of indigenous peoples to manifest their culture and ways of life have become less contested. With the growth of the indigen­ ous movement domestically and globally, tolerance of indigenous languages and traditions has increased. The idea of a cultural melting-pot has receded, and the concept of promoting cultural diversity has gained ground. Obviously, there are still remnants of the previously prevailing goal of assimilation and integration. III.  PAST TRENDS IN DECISION AND THEIR CONDITIONING FACTORS

Indigenous peoples have enjoyed unprecedented success in their quest for legal protection of their culture both at the national and international levels. This is not the time or place to reiterate this progress. Suffice it to say that international and domestic pressure from the indigenous movement and its supporters has generated transformational changes in domestic law – from the top of the Constitution (as in Brazil, Canada and 10   The Coordinator of the Indian Nations Union in the Amazon has articulated this defining and unique spiritual link between indigenous peoples and their land:

When the government took our land . . . they wanted to give us another place . . . But the State, the government, will never understand that we do not have another place to go. The only possible place for [indigenous] people to live and to re-establish our existence, to speak to our Gods, to speak to our nature, to weave our lives, is where our God created us . . . We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life . . . The only thing we have is the right to cry for our dignity and the need to live in our land. Krenak A, World Commission on Environment and Development [WCED], Public Hearing in Sao Paulo, Brazil, 28–29 October, 1985, in Report of the WCED: Our Common Future, para 69, UN Doc A/42/427/Annex, 1987.

  The Cultural Dimension of Indigenous Rights  181 Guatemala), to statutory reforms (as in the Philippines’ Indigenous Peoples’ Rights Act, the Treaty of Waitangi Act in New Zealand, the Native Title Act in Australia) and court action (as in the jurisprudence of the Colombian Constitutional Court, and Mabo v Queensland, Australia’s High Court decision), to mention but a few of the pathbreaking decisions in the field.11 A close analysis of State practice and opinio juris of the specially affected States has led to the conclusion, in 1999, that customary international law is not only emerging, but has arisen and includes indigenous peoples’ rights to cultural integrity, autonomy and their traditional lands.12 This conclusion has been shared by the present UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Professor S James Anaya.13 The International Law Association Committee on the Rights of Indigenous Peoples, in its Interim Report of 2010, closely reviewed, amplified and updated pertinent State practice and confirmed the content of customary international law in this field.14 In its final report of 2012, it also stated: ‘When the essence of their cultural integrity is at significant risk, obtaining the free, prior and informed consent of the indigenous peoples concerned becomes mandatory.’15 At the same time, upon a close review of State practice in the field of language rights, it concluded that a negative obligation under customary international law exists ‘in the sense that States are bound not 11   For details, see Wiessner S, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) Harvard Human Rights Journal 57 ff. 12   Ibid, 127. 13   Anaya SJ, Indigenous Peoples in International Law (Oxford, 2004) (2nd edn) 49–72; Anaya SJ and Williams RA, ‘The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources under the Inter-American Human Rights System’ (2001) Harvard Human Rights Journal 33 ff. Anaya SJ and Wiessner S, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment’, JURIST Forum, 3 October 2007, available at ; Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Anaya SJ, UN Doc A/HRC/9/9, 11 August 2008, para 41. 14   For detailed research, see the chapter by the Committee’s Rapporteur, Professor Federico Lenzerini, ‘The Rights of Indigenous Peoples under Customary International Law’, ILA Committee on the Rights of Indigenous Peoples, Interim Report to the 74th ILA Conference in The Hague, 15–20 August 2010, available at (hereinafter 2010 ILA Interim Report) 43–52. See also Wheatley S, ‘Autonomy or Self-Government’, 2010 ILA Interim Report, 1516; Oguamanam C, ‘Indigenous Peoples and International Law: The Making of a Regime’ (2004–05) Queen’s Law Journal 348 ff. A recent monograph on the protection of groups in international law also concluded that ‘there is sufficient proof of State practice and opinio juris among States to suggest the existence of a right to autonomy for indigenous peoples in international law’; Wenzel N, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Berlin, 2008) 508. Accord Weller M, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) European Journal of International Law 111 ff, 116. For a concurring analysis of indigenous land rights under customary international law and UNDRIP, see Stevenson SM, ‘Indigenous Land Rights and the Declaration on the Rights of Indigenous Peoples: Implications for Maori Land Claims in New Zealand’ (2008) Fordham International Law Journal 298–343. 15   Final Report, ILA Committee of the Rights of Indigenous Peoples, 8 June 2012, 10.

182  Siegfried Wiessner to create any obstacles to the efforts and activities carried out by indigen­ ous peoples in order to preserve their own languages as an element of their cultural identity’.16 In a historic decision, the International Law Association (ILA), at its 75th Biennial Meeting in Sofia, Bulgaria, on August 30, 2012, adopted the Committee’s conclusions and recommendations as ILA Resolution No 5/2012.17 This Resolution, for the very first time, adopted the concept of collective human rights, and affirmed the customary international law rights of indigenous peoples to their autonomy, land and cultural traditions as described above. This resolution, adopted by consensus without any objection, constitutes evidence of international law under Article 38(1)(d) of the Statute of the International Court of Justice (ICJ)18 as such collectively shared views by eminent scholars and practitioners from very different legal traditions and cultures are ever more important in light of the depth of these differences.19 The United Nations Educational, Scientific and Cultural Organization (UNESCO) is a place particularly dedicated to the protection of the cultural property of indigenous peoples. Tangible immovable items of indigenous cultural property may be inscribed in the World Heritage List under the 1972 UNESCO World Heritage Convention,20 albeit in the US – and, according to the UN Expert Mechanism on the Rights of Indigenous Peoples and the African Commission on Human and Peoples’ Rights, globally – not without the free, prior and informed consent of the indigenous peoples.21 Similar involvement of indigenous peoples in the designation and management of intangible cultural resources is mandated in the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.22 Of interest to indigenous peoples is also the 2005 Convention for the Protection of the Diversity of Cultural Expressions.23

  Ibid, 19.   ILA Resolution No 5/2012, Rights of Indigenous Peoples, 30 August 2012, available at . 18   American Law Institute, Third Restatement of the Foreign Relations Law of the United States, § 103 Reporters’ Notes No 1 (1987). 19   Vitzthum W, ‘Begriff, Geschichte und Quellen des Völkerrechts’ in Vitzthum W (ed), Völkerrecht, 3rd edn(Berlin, 2004) 72, para 147. 20   UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, 1972. 21   For details, see Lenzerini F, ‘Cultural Rights and Cultural Heritage’ in 2012 ILA Final Report (n 15) 23. 22   Ibid, 24–25. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, UNESCO Doc MISC/2003/CLT/CH/14, 17 October 2003. See also Lenzerini F, ‘Intangible Cultural Heritage: The Living Culture of Peoples’ (2011) European Journal of International Law 101 ff. 23   UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, UNESCO Doc CLT-2005/CONVENTION DIVERSITE-CULT REV, 20 October 2005. 16 17

  The Cultural Dimension of Indigenous Rights  183 In addition, indigenous peoples are specifically protected if their cultural heritage is stolen or illegally exported. According to Article 5(3)(d) of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,24 a court or other competent authority of a State Party must order the return of an illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs ‘the traditional or ritual use of the object by a tribal or Indigenous community’. Of particular interest to indigenous peoples is the return of remains of their loved ones. The US Native American Graves Protection and Repatriation Act (NAGPRA)25 has led the way. A similar practice exists in Australia.26 And a recent campaign by the Museum of New Zealand effectuated the return from museums or private collections abroad to New Zealand of 300 to 500 mummified Maori heads (Mokomokai) – to be returned for burial according to Maori traditions to the relatives of the person to whom the head belonged in life – when they may be identified – or to be kept in the Museum.27 Article 8(j) of the Convention on Biological Diversity28 affirmed indigenous peoples’ rights to their traditional knowledge and has led to continued protective efforts in this forum. The 2010 Nagoya Protocol to this convention29 obligates States Parties, inter alia, to take measures to ensure that ‘traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities’.30 The World Intellectual Property Organization also discusses the protection of traditional knowledge and cultural expressions.31 In 2000, the United Nations Sub-Commission on the Promotion and Protection of Human Rights approved the revised United Nations Draft Principles and   ILM 1995, 1322.   Public Law 101-601 of 16 November 1990. 26   Lenzerini F (n 21) 26, with reference to European Network for Indigenous Australian Rights, ‘Repatriation of Aboriginal Human Remains’, available at . 27   Lenzerini F, ‘The Tension between Communities’ Cultural Rights and Global Interests: The Case of the Maori Mokomokai’ in Borelli S and Lenzerini F (eds), Cultural Heritage, Cultural Rights, Cultural Diversity: New Trends and Recent Developments in International Law (Leiden/Boston, 2012) 157 ff. 28   United Nations Convention on Biological Diversity, Article 8(j), UN Doc ST/DIP/1307 (5 June 1992), available at . 29   Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, available at . 30   Ibid, Article 7. 31   Cf World Intellectual Property Organization (WIPO), ‘Traditional Knowledge’, . 24 25

184  Siegfried Wiessner Guidelines on the Protection of the Heritage of Indigenous People,32 suggesting a comprehensive sui generis regime of protection of indigenous heritage.33 The World Bank Operational Policy and Bank Policy on Indigenous Peoples (OP/BP 4.10) of 200534 continued an early involvement of indigen­ ous peoples in their projects as demonstrated in Operational Directive 4.20 of 17 September 1991.35 It demanded, wherever possible, the active participation of indigenous peoples in the development process itself. The cultural dimension of indigenous rights has also been visible in the formulation and interpretation of universal and regional human rights treaties. Article 27 of the International Covenant on Civil and Political Rights states the following guarantee: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The protection of indigenous peoples’ culture in this instrument thus appeared to be channelled, for individual complaints, through the guarantee of individual rights of their members.36 The Human Rights Committee’s General Comment No 23 on Article 27 of the International Covenant on Civil and Political Rights (ICCPR) states that this provision protects ‘individual rights’, but that the obligations owed by States are collective in nature.37 In its jurisprudence, it has consistently stated that the right to enjoyment of culture, practice of religion, or use of language can only be meaningfully exercised ‘in a community’, ie, as a group.38 Also, indigenous peoples have the right to self-determination under Article 1 of the ICCPR, a right monitored through the review of State reports. 32   UN Economic and Social Council (ECOSOC), Commission On Human Rights, Geneva, 1 March–19 June 2000, Human Rights of Indigenous Peoples: Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, UN Doc E/CN.4/Sub.2/2000/26, 19 June 2000, available at . 33   Wiessner S and Battiste M, ‘The 2000 Revision of the United Nations Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People’ (2000) St Thomas Law Review 383 ff, 384. 34   Cf Operational Directive 4.10 on Indigenous Peoples, World Bank Operational Manual (July 2005), available at . 35   Operational Directive 4.20 on Indigenous Peoples, World Bank Operational Manual (17 September 1991). 36   Cf Vrdoljak A, ‘Self-Determination and Cultural Rights’ in Francioni F and Scheinin M (eds), Cultural Human Rights (Leiden/Boston, 2008) [hereinafter Cultural Human Rights] 41 ff, p 59. 37   General Comment No 23, UN Doc HRI/GEN/1/Rev.1, 38 (1994), para 6(2). 38   Vrdoljak A (n 36) 61, with further references, including the Kitok, Ominayak, Länsman and Apriana Mahuika cases.

  The Cultural Dimension of Indigenous Rights  185 The key contribution of human rights to the protection of the cultural dimension of indigenous peoples’ rights have, however, been made in a regional system, specifically, by the Inter-American Court of Human Rights. The tribunal, in its celebrated Awas Tingni judgment of 31 August 2001,39 affirmed the existence of an indigenous people’s collective right to its land. It stated: Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention – which precludes a restrictive interpretation of rights –, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua. Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centred on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.40

This decision set in motion a jurisprudence constante, including a recent decision involving Suriname,41 which included the right to life, including a dignified communal existence, the right to collective property over lands, territories, and natural resources, the right to consultation and consent, and the right to political participation in accordance with their traditional ways of life. In 1989, the International Labour Organization (ILO) promulgated the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No 169).42 Although Convention No 169 does 39   Inter-American Court of Human Rights (IACtHR), Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment of 31 August 2001, reprinted in ‘The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua’ (2002) Arizona Journal of International and Comparative Law 395 ff, 430–31, 440. 40   Ibid, paras 148–49. 41   IACtHR, Saramaka People v Suriname, Preliminary Objections, Merits, Reparations, Costs, Ser C, No 172, 28 November 2008. See also Moiwana Village v Suriname, Judgment of 15 June 2005, Ser C, No 124; Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June 2005, Ser C, No 125; Sawhoyamaxa Indigenous Community v Paraguay, Judgment of 29 March 2006, Ser C, No 146. 42   Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989, reprinted in ILM 1989, 1384 ff [hereinafter ILO Convention (No169)].

186  Siegfried Wiessner not explicitly use the term ‘self-determination’, it ensures indigenous peoples’ control over their status, lands, internal structures, and environmental security, and it guarantees indigenous peoples’ rights to ownership and possession of the total environment they occupy or use. As of October 15, 2013, Convention No 169 has only garnered the ratification of 22 States, albeit virtually all of the States of Latin America with significant indigen­ ous populations.43 A more successful and global and comprehensive effort to formulate the rights of indigenous peoples was undertaken by the UN Working Group on Indigenous Populations under the leadership of Erica-Irene Daes. Established in 1982, the Working Group, in 1993, agreed on a draft which ultimately, through a number of permutations, was accepted by the UN Human Rights Council and passed, on September 13, 2007, in a landslide vote of 143 yes and four no votes, with 12 abstentions, by the United Nations General Assembly.44 As all four dissenters, including the US, have now endorsed the Declaration, it enjoys virtually universal support.45 UNDRIP formulates the rights of indigenous peoples to the extent, as well as in the structure and format, that the international community of States has recognized them. In UN practice, as a ‘declaration’, it is a ‘solemn instrument resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected’.46 Though not legally binding per se, a declaration may become binding to the extent that its various provisions are reflected in conforming State practice and opinio juris. This distinct body of customary international law concerning indigenous peoples, not necessarily coextensive with the full reach of the current UNDRIP, may have formed long before this vote occurred, and may emerge thereafter.47 The State practice and opinio juris backing up the claim of customary international law predating key parts of the Declaration, and involving the triangle of culture, self-determination and land, has been dealt with above.48 The safeguarding of indigenous cultures plays a pre-dominant role in UNDRIP: at least 17 of the 46 Articles are about cultural rights; it has been 43   NORMLEX Information System on International Labour Standards, Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No 169), available at . 44   United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) GA Res 61/295, 13 September 2007. For details of the process, see Wiessner S, ‘Indigenous Sovereignty: A Reassessment in Light of the United Nations Declaration on the Rights of Indigenous Peoples’ (2008) Vanderbilt Journal of Transnational Law1141 ff, 1159–62. 45   Wiessner S, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’ (2011) European Journal of International Law 121 ff, 129. 46   ECOSOC, 19 March–14 April 1962, Report of the Commission on Human Rights, para 105, UN Doc E/3616/Rev. 47   Anaya SJ and Wiessner S (n 13). 48   Cf text (nn 11–19).

  The Cultural Dimension of Indigenous Rights  187 stated that ‘in fact, one can find the cultural rights angle in each article of the Declaration’.49 The preamble affirms that indigenous peoples are ‘equal to all other peoples’, and that ‘all peoples contribute to the diversity and richness of civilization and cultures, which constitute the common heritage of mankind’. Even though their situation ‘varies from region to region and from country to country’,50 indigenous peoples and persons enjoy all human rights (Articles 1, 17(1)), and they are free and equal to all others (Article 2). The essential novelty of this instrument is its recognition of ‘indispensable’ collective rights,51 which include: self-determination, the preservation and flourishing of cultures, and the protection of indigenous peoples’ rights to their lands. The designation of the ‘diversity and richness of civilization and cultures’ as ‘common heritage of mankind’ is of particular interest in this symposium as it is dedicated to the ‘International Law for Common Goods’ and ‘intangible cultural heritage’ as well as ‘underwater cultural heritage’ have been designated as such ‘international’ or ‘global’ common goods. It may be apposite to state, however, that neither the designation of global cultural diversity as common heritage of mankind nor intangible cultural heritage as international common good affects the rights of indigenous peoples to their heritage, their exclusive control over it, as stated in Article 31(1) UNDRIP: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

As detailed above, indigenous peoples’ free, prior and informed consent is necessary to effectuate international protective regimes under the pertinent UNESCO conventions. As stated above, the effective protection of indigenous culture is key to the understanding of UNDRIP. This fundamental policy goal undergirds, in particular, the novel prohibition of ethnocide against indigenous peoples (Article 8(1) – going beyond the prohibition of genocide against them, 49   Stamatopoulou E, ‘Taking Cultural Rights Seriously: The Vision of the UN Declaration on the Rights of Indigenous Peoples’ in Allen S and Xanthaki A (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford, 2011) [hereinafter Reflections] 387 ff, 392. 50   UNDRIP (n 44), at Preamble. 51   Ibid.

188  Siegfried Wiessner as enunciated in Article 7(2)),52 the prohibition of their forced removal and relocation (Article 10), their right to practice and revitalize their cultural traditions and customs, including the right to maintain, protect and develop past, present and future manifestations of such cultures (Article 11), including the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies, as well as the restitution and repatriation of ceremonial objects and human remains (Article 12). Article 13 guarantees indigenous peoples the right to ‘revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies’, etc and obligates States to ‘take effective measures to ensure that this right is protected’. An indigenous people’s language is central to its culture – an ever more important issue in view of the accelerating threat that those languages will vanish and the need for this alarming downward spiral to be brought to a halt.53 Individual and collective rights to education, in their own institutions and public schools, are contained in Articles 14 and 15.54 Article 15 guarantees indigenous peoples the right to have ‘their cultures, traditions, histories and aspirations . . . appropriately reflected in education and public information’. This includes the State’s duty to combat prejudice and discrimination and to develop tools that ‘promote tolerance, understanding and good relations among indigenous peoples and all other segments of society’. Article 16 grants indigenous peoples the right to ‘establish their own media in their own languages’, an important aspect of self-­ determination, and to have non-discriminatory access to non-indigenous media; also States have a ‘duty to ensure that indigenous cultural diversity is duly reflected in non-indigenous media’.55 This is the essence of UNDRIP expressing the cultural dimension, narrowly conceived, of indigenous peoples’ rights. IV.  THE FUTURE

The indigenous movement has shown a vitality and cohesion that allows for the prediction that UNDRIP will be ever more implemented in the domestic legal systems of the Member States of the UN. It also gives great cause for optimism that the UN Special Rapporteur on the rights of indigenous peoples has not met with any contestation of his applying the 52   Even though Article 8(1) UNDRIP does not use the word ‘ethnocide’, it captures its essence: ‘Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.’ 53   For a recent discussion of these issues, see Mancini S and de Witte B, ‘Language Rights as Cultural Rights: A European Perspective’ in Cultural Human Rights (n 36) 247 ff. 54   Graham L, ‘Education and the Media’, 2010 ILA Interim Report (n 14) 25–28. 55   Ibid, 26.

  The Cultural Dimension of Indigenous Rights  189 Declaration as the standard for review of the record of the countries he has visited as of yet. It is therefore to be expected that there will be ever more, and ever more comprehensive, State practice and opinio juris that will buttress the conclusion, now shared by the ILA, of key and further provisions of UNDRIP forming part and parcel of customary international law. Its function will thus most likely be similar to that of the 1948 Universal Declaration of Human Rights, which now in many provisions is seen as reflective of customary international law, and which serves, in all of its provisions, as the standard for the universal periodic review of State conduct by the United Nations Human Rights Council. V.  APPRAISAL, ALTERNATIVES AND SUGGESTED SOLUTIONS

1.  The concern for the safeguarding of indigenous cultures lies at the core of the success of indigenous peoples in their remarkable global cooperative effort which has been called their ‘international legal project’. The cultural dimension of indigenous peoples’ rights, not political or economic objectives, lay at the root of the overwhelming State support for UNDRIP. In this sense, all indigenous peoples’ rights are cultural rights, and any interpretation of these rights ought to keep this telos in mind.56 2.  Most probably, States adopted and endorsed UNDRIP to celebrate and continue into the future the ‘diversity and richness of civilization and cultures’ which they called the ‘common heritage of mankind’. The ‘common heritage of mankind’ metaphor cannot be taken too far, however, as its original meaning in the 1982 Law of the Sea Convention would not allow for exclusive control by individuals, groups or nation-States over the resource so labelled.57 Other international common goods such as the high seas are also inapposite for the heritage of indigenous peoples. Indigenous cultural heritage is, as UNDRIP, ILO Convention No 169 and pertinent customary international law recognize, the intellectual property of indigenous peoples. 3.  This state of ownership does not mean, however, that indigenous cultural heritage may not be the object of particular protection under   Wiessner S (n 45) 129.   It would include the principle of non-appropriation, international administration, and a system of licensing and equitable sharing of the benefits of use – all quite inapplicable to the indigenous context. In the case of the original ‘common heritage of mankind’, ‘the Area’, Part IX of the 1982 Law of the Sea Convention, commonly designated as the deep sea-bed, is being administered by the International Sea-Bed Authority. A similar provision was included in Article XI of the 1979 Moon Treaty. There, however, the goal of international administration of economic exploration and exploitation failed to gain sufficient State support, leaving outer space and the celestial bodies with the 1967 Outer Space Treaty designation of ‘province of all mankind’ – a similar ‘international common good’, but without the strictures of international administration, licensing and equitable sharing. 56 57

190  Siegfried Wiessner international law. If they agree, indigenous peoples’ cultural heritage, if tangible and immovable, can be safeguarded on UNESCO’s World Heritage list; their intangible heritage, often more relevant to their identity and life, can be protected under the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage. 4.  Culture is a trans-individual phenomenon. Belonging to a commun­ ity is essential to the fulfilment of a human being, his or her condition of happiness. The concept of an ‘individual culture’ has been rejected, with good grounds, particularly in the context of indigenous peoples.58 In fact, the reciprocal interaction between the individual and the group into which he or she was born or has chosen to affiliate with, is an empirical reality59 which cannot be denied and which the law ignores at its peril. 5.  As the preservation and flourishing of otherwise vulnerable individuals is the motivation for legal protections of individual human rights, so is the survival and blossoming of the otherwise doomed ways of life, languages, and other cultural heritage necessarily to be protected by com­ munal, or group, rights. They complete the human rights project, as they respond to all of the human needs and aspirations, including rectitude and affection. These rights are not, and should not be, necessarily the same for all groups. On the contrary, the rights should be tailor-made to the context, the vulnerabilities of each class of communities. As special individual human rights protections were carved out for the particular needs of women and children, for refugees, or the disabled, special protections are necessary for groups with particular needs, facing specific historical and present threats. 6.  Concerns have been articulated that the pursuit of exclusive special rights for indigenous peoples could possibly undermine support for their cause, as other groups also have special needs, yet unfulfilled, for international legal protection of their aspirations.60 The best response to these 58   Torres RM, ‘Indigenous Education and “Living Well”: An Alternative in the Midst of Crisis’ in Indigenous Resistance (n 6) 213 ff, 217 (‘The notion of individual culture is unacceptable for indigenous peoples who claim the collective production, throughout history, of all systemic expressions of their particular cultures.’). See also Esteva G, ‘Beyond Education’ in Indigenous Resistance (n 6) 115 ff, 121 (‘Among all indigenous peoples, the condition of the strong “we” is expressed existentially and in the language itself, for this is the subject of comunalidad, the first layer of existence, formed by the interlocking of the networks of real relationships that make up each person.’). 59   George Herbert Mead has provided the critical insight that in the constant interplay between the individual and society’s constituent groups, not only is the individual selfshaped and changed, but general patterns of group behaviour are reconstructed and modified as well. See, eg, Morris CW (ed), Mead GH, Mind, Self and Society: From the Standpoint of a Social Behavioralist (Chicago, 1934); Strauss A (ed), Mead GH, On Social Psychology: Selected Papers (Chicago, 1964). 60   Kymlicka W, ‘Beyond the Indigenous/Minority Dichotomy?’ in Reflections (n 49) 183 ff., 207 (‘We need to recognize that indigenous peoples aren’t the only group in need of targeted rights – this is also true, in different ways, of national minorities, the Roma, Dalits, immigrants, and others’).

  The Cultural Dimension of Indigenous Rights  191 worries is to see the indigenous success as an encouragement for other vulnerable groups to pursue a similar path of international legal empowerment, not as a negative outcome to be lamented. Severely underprivileged and often persecuted groups such as the Roma and Dalit ought to present their case to the international community and ask for rights tailormade to combat their particular plight. In the case of the Roma, this regime would probably not include a claim to land, but protection of their culture in other respects. 7.  Indigenous peoples face the unique threat, often materialized, of losing their land with which they share a strong, often spiritual bond. Their inner world, or cosmovision, is centred around their connection with their madre tierra. This connection is not an individual one, but essentially one of their collectivity. It is spiritual, ie it cannot be moved to another place. So their essential need is the preservation of these lands via an international legal right to their demarcation, registration, and use. 8.  The rights of nature, of Mother Earth, as recently proclaimed in Bolivia’s 2010 Ley de Derechos de la Madre Tierra,61 may draw their inspiration from indigenous peoples’ traditional treatment of the environment. In fact, in Article 4, the law protects the ‘life systems of Mother Earth’, including the cosmology of peasant indigenous peoples and nations. As nature cannot present itself in court, concerns have been raised that standing for the rights of nature, in legal proceedings, might be given to an institution of the government or environmental groups to the detriment or exclusion of the indigenous peoples who have been faithful stewards of their particular part of Mother Earth since time immemorial. In implementing the concept of the ‘rights of nature’, care should be taken that indigenous peoples’ rights to their traditional lands are not circumvented. 9.  Also, in order to live their lives in self-defined dignity and in accordance with their traditions, indigenous peoples need to enjoy a wide range of autonomy. As with their rights to land, the raison d’être of cultural survival and flourishing guides the scope and the limits of self-determination. Secession is rarely desired, as indigenous peoples have less of a political or economic, but cultural concept of sovereignty – and even more rarely allowed, on a basis of equality with any other people in extra-­ colonial contexts. Substantively, autonomy ought to be limited by the customary international law of human rights. 10.  The ‘disenchantment of the modern world’ has been lamented not only by Max Weber.62 Overcoming prevalent materialism and excessive 61   Ley de Derechos de la Madre Tierra – Ley 071 (21 December 2010), available at . 62   Weber M, ‘Science as a Vocation’ in Gerth HH and Wright Mills C (eds & trans), From Max Weber: Essays in Sociology (New York, 1946) 155 (‘The fate of our times is characterized by rationalization and intellectualization and, above all, by the “disenchantment of the world”’).

192  Siegfried Wiessner individualism, indigenous peoples’ rights, based essentially on their spiritual connection with the land and all living things, should be celebrated as a welcome reversal of this tendency.63 The flourishing of indigenous cultures is, however, ultimately in the hands of indigenous peoples themselves. To a large degree, the legal architecture sustaining this project has already been built.

63   Wiessner S, ‘Re-Enchanting the World: Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights Regime’ (2010) UCLA Journal of International Law and Foreign Affairs 239 ff, 241.

9 Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law LUCAS LIXINSKI*

S

I. INTRODUCTION

INCE THIS CONTRIBUTION is part of a book in honour of Francesco Francioni, my PhD supervisor, I find it fitting to start with an anecdote about my relationship with him during my PhD years. I wrote my doctoral thesis under Professor Francioni on the topic of intangible cultural heritage in international law, a topic in which he is extremely well-versed, having taken part in the drafting of major UNESCO instruments in the area. It is also a very specialized, somewhat narrow topic, being a domain of heritage within the already very specialized field of international heritage law. So it came to me as a surprise when, after I submitted one of the earlier chapters of my thesis, he asked me the following question: ‘how does your argument fit within the larger normative framework of international law?’ I was taken aback by the question, as I had thought of myself up until then as writing for a very specific audience, and aiming at resolving a very specific set of legal problems that only attained to intangible cultural heritage. However, the more I thought about it, the more I recognized the import­ ance of the question I was posed. To fit one’s specialized research into the broader normative framework of international law is not only good technique, but it also has two beneficial results. On the one hand, it significantly broadens the scope and reach of the research, ensuring that international law does not fall prey to its own diversification and expertisation; on the other, it also means that studies in specialized fields can *  I am very thankful to Andrew Byrnes, Alessandro Chechi and audiences in Cambridge (UK) and Florence (Italy) for their comments on previous drafts. All errors remain my own. E-mail: [email protected].

194  Lucas Lixinski feed back into larger international law, and have an influence on it. In other words, thinking of specialized fields of international law in relation to general international law increases the communicability and impact of international legal research for both specialists and generalists. The question Francesco Francioni posed me one sunny morning in Fiesole has stayed with me since, and informs much of my research agenda to this day. The following pages are an example of this impact: by using the example of international heritage law, I hope to make a case for how inter­ national law is evolving, or at least can evolve, towards the effective safeguarding of common goods without alienating those closest to them, who play a core role in this safeguarding. I will discuss the roles of communities in international legal processes, trying to make the case for a move towards communitarianism in international cultural heritage law. A lot of paper and ink has been employed in discussing the role of individuals in international legal processes. By comparison, though, much less has been said about the role of communities, understood as sub-State actors with a shared sense of identity, but who do not (necessarily) have any aspirations to statehood. These communities’ participation in inter­ national fora is important, at the very least, as actors of contestation of the sovereign nation-State’s positions. Cultural and ethnic minorities are a classic example of communities being given a role in international law. The minority protection systems implemented under the League of Nations aimed at offering safeguards for groups which, without these safeguards, were bound to be crushed by the majoritarian forces of homogeneous national identity-building. But, with the rise of liberalism in the aftermath of World War II, these systems collapsed, and international human rights law (and, with it, much of international law) took a sharp turn towards the protection of individuals over communities. While the protection of individuals in international law has many advantages (for one, it gives these individuals the right to contest the practices of the groups within which they were born), there is also an important disenfranchisement that takes place by ignoring communities’ role in the formation of even individual identity. If individuals are considered only as such, and not as also part of a certain collective entity, they are necessarily in a lesser position to stand up for certain prerogatives. The fact that UN human rights treaty bodies have deemed the right to self-determination to be non-enforceable precisely because it cannot be translated as an individual right is an example of what can be at stake in forcing a principled choice between collectivities and individuals. This contribution explores the role attributed to communities in the specific context of international cultural heritage law. International cultural heritage law and fora are relatively innocuous spaces where many of

  Heritage for Whom?  195 the tensions regarding the power and limits of collective identity can be played out (to the extent culture is a fairly watered-down proxy for contestation of broader political issues, inasmuch as the recognition of distinctive identity necessarily leads to debates about differentiated status towards the larger polity). It is also an area of international law where discussions about the role of communities have gained new force in the past decade, particularly as a move away from State-centric models of control and ownership over identity. Communities are often caught in the cross-fire between individuals and States. To be more specific, States resist admitting communities into international legal processes because of communities’ roles as collective elements of political contestation and entities that can exercise self-­ determination, one of the most important means to challenge States’ near-monopoly in international legal processes. And individuals resist communities because of the idea that communities can oppress individual freedoms. This antagonizing discourse is primarily generated by States, which are in a privileged position to create the perceptions individuals have towards communities (at least to the extent they are in a position to make claims of communities as selfish and unaware of the requirements of the common good), and see in the State a guardian against the possible dictatorship of these groups, and at the same time States, because they have a near-monopoly over international definitions of stakeholders in international legal processes, manage to successfully exclude communities. Communities and individuals have historically been excluded from the international legal processes within the United Nations Educational, Scientific and Cultural Organization (UNESCO), mostly due to sovereignty concerns reinforced by understandings of guardianship and international community interest. This chapter highlights this historical evolution, analyzing how cultural heritage regimes have evolved and steps have been taken to give communities increasingly larger roles in heritage management and protection. However, these steps are still burdened with sovereignty concerns, under a notion of State guardianship of individuals’ and communities’ cultures, sometimes to the detriment of the very individuals and communities that should be the beneficiaries of heritage protection. By looking at the roles of individuals and communities in heritage regimes from the 1950s to the present day, it is possible to understand how States’ rights have been eroded in this area of international law, leading to the emergence of a ‘human dimension’ of the field, which is reflected not only in specific provisions in international cultural heritage treaties about individuals’ and communities’ involvement, but also in the overall orientation of these instruments, heavily influenced by the victories of international civil society in the environmental and human rights fields.

196  Lucas Lixinski I argue that, even though current mechanisms for individuals’ and communities’ involvement in the international legal process are still far from ideal, they have planted the seed that can lead not only to an individual / community right of access to these international fora, but also to more integrated legal and policy approaches to heritage, blurring lines between the domestic, the regional and the international and a re-orientation of the field towards a more humanized version of international cultural heritage law. The chapter will proceed as follows: the next section will examine the move from State interests to peoples’ interests in international cultural heritage law. The following section will focus on some of the tensions between communities and individuals in this field (and with some reference to international human rights law). And the final section will offer some concluding remarks on the topic. II.  FROM STATES’ TO PEOPLES’ INTERESTS IN INTERNATIONAL CULTURAL HERITAGE LAW

International cultural heritage legal regimes started from a traditional State-centred model, which relied on States alone to make determinations about the fate of cultural heritage. That is the case with the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention),1 which, in light of the specificities of warfare, had no other apparently viable alternative than to confer upon States the mono­ poly of heritage decision-making. Even though the Convention’s Preamble recognizes that cultural property belongs to a ‘people’, and not to States, States are still the addressees of the instrument, and the only ones with rights and obligations under the instrument. States in this sense become ‘stewards’ of heritage, acting as agents of the international community. Local communities, ‘peoples’, are assumed to be fairly represented by States. This model is largely replicated by the 1972 World Heritage Convention (WHC),2 still granting States ultimate control over determining what heritage is worth protecting, and the means of protection. But the WHC is also a major step forward in that it includes non-State actors prominently in heritage processes. However, these non-State actors are experts, and not local communities. The Preamble mentions that protection cannot be complete without the use of experts, and that it is essential that protection mechanisms be ‘organized on a permanent basis and in accordance with 1   Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted at The Hague on 14 May 1954, Article 15. 2   Convention concerning the Protection of the World Cultural and Natural Heritage, adopted in Paris on 16 November 1972.

  Heritage for Whom?  197 modern scientific methods’. The Convention was drafted with the advice of the International Council on Monuments and Sites (ICOMOS),3 a leading non-governmental organization (NGO) of cultural heritage experts. Having been drafted by experts, it is only natural that the role of experts is central to the operation of the instrument. Even though the Convention attributes to the State Party the primary duty of identifying cultural heritage properties situated in its territory,4 and of protecting heritage, the protective duties are expected to be discharged through scientific and technical assistance.5 Little to no mention is made of community involvement in protecting heritage, and, more specifically, in determining what their heritage actually is. While Article 5, on the measures for the protection of heritage, does mention the need to adopt policies aiming ‘to give the cultural and natural heritage a function in the life of the community’ in its first paragraph, the remaining four paragraphs refer to the import­ ance of expertise and expert training,6 which shows an imbalance in how experts and heritage holders are perceived in the international legal process of heritage protection. This instrument was subsequently developed by successive iterations of the Operational Guidelines for its implementation. However, little has changed in the sphere of community inclusion. One of the few mentions to community involvement in the World Heritage system is the idea of local communities acting as ‘partners’ in the protection and conservation of World Heritage.7 One must highlight the significance of inclusion of non-State actors so centrally in the heritage process, which is an important step forward, but one that lacks significant bite, because of the restriction of non-State actor participation to experts, as opposed to the peoples to whom the heritage actually belongs. The sense of ‘ownership’ over heritage still lies largely with States in the World Heritage system. Thirty years later, UNESCO adopts another major instrument, the 2003 Convention on Intangible Cultural Heritage. This instrument, among other things, creates two lists of intangible heritage,8 into which States can inscribe manifestations of heritage within their territories. Further, the very definition of intangible heritage in the instrument clearly associates it with ‘communities, groups, and, in some cases, individuals’, thus attributing, at least on paper, a more prominent role to non-State actors over  See Smith L, Uses of Heritage (London/New York, 2006) 95.   Convention concerning the Protection of the World Cultural and Natural Heritage, adopted in Paris on 16 November 1972, Article 3. 5   Ibid, Article 4. 6   Ibid, Article 5. 7   Operational Guidelines for the Implementation of the World Heritage Convention (2008 version), Guideline 40. 8   Convention for the Safeguarding of the Intangible Cultural Heritage, adopted in Paris on 17 October 2003, Articles 16 and 17. For a fuller discussion of these lists, and some of the shortcomings of this mechanism, see Lixinski L, ‘Selecting Heritage: The Interplay of Art, Politics and Identity’ (2011) European Journal of International Law 81 ff. 3 4

198  Lucas Lixinski States. Further, the fact that individuals are put last, and recognized only ‘in some cases’, seems to clearly indicate their secondary role in the intangible cultural heritage (ICH) context.9 This reflects a general anthropological consensus in the sense of thinking of intangible heritage as belonging to collective entities, rather than identifiable individuals. Community involvement is an important part of the system created by the 2003 Convention.10 It is in fact one of the basic purposes of the Convention to the extent that the Convention sees communities as not only the bearers of ICH entitled to assistance, but also the primary responsible parties for the safeguarding of intangible heritage. The use of the term ‘communities’ generated a fair amount of debate during the drafting of the 2003 Convention. It was unclear what the word meant as a legal term. Also, it raised the possibility of claims for group rights, which was not something all the drafters were supportive of or willing to accept.11 Doubt persists to this day (at the time of writing), but the Intergovernmental Committee adopted the position that a definition of community was not necessary, and the one adopted by each State Party was sufficient to indicate community participation in the inscription of manifestations of heritage in the lists, for instance.12 According to the Operational Directives of the Convention, States Parties should consult not only communities, groups and individuals who are bearers of ICH, but also experts and research institutes. States Parties are encouraged to create consultative bodies to bring together communities and experts to help in the identification of ICH, the drawing of inventories and the preparation of nomination files, among other activities.13 Another important element of community participation is that States Parties commit to efforts to sensitize communities to the importance and value of their heritage. This is a means to ensure that the bearers of ICH may fully benefit from the Convention as a standard-setting instrument.14 Naturally, if one of the core goals of the Convention is to raise awareness as to the importance of ICH, awareness should be raised primarily at the local level. This is because it is only by creating a sense of ‘pride’ that binds a community to its heritage that ensures its survival. 9  See Blake J, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (Leicester, 2006) 35. 10  See Blake J, ‘UNESCO’s 2003 Convention on Intangible Cultural Heritage: The Implications of Community Involvement in “Safeguarding”’ in Smith L and Akagawa N (eds), Intangible Heritage, (London, 2009) 45 ff, 62; and Aikawa-Faure N, ‘From the Proclamation of Masterpieces to the Convention for the Safeguarding of Intangible Cultural Heritage’ in Smith and Akagawa N (eds) ibid, 13 ff, 37. 11  See Blake J (n 9) 29. 12   See Form ICH-02 (2009) – Representative List. Explanatory Note. 13   General Assembly of States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage, Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, June 2008, Rule 77. 14   Ibid, Rule 78.

  Heritage for Whom?  199 But these concessions to non-State actors in the language of the ICH Convention fall short of actually moving away from the State-centred paradigm. Janet Blake, in her study that served as the basis for the drafting of the ICH Convention, highlighted the importance of involvement of communities in the implementation of the Convention.15 According to the Convention and the early practice under it, however, community participation is restricted to the national level, and communities seem to not have a space at the international level of implementation of the Convention. Instead, it seems that communities are gradually being replaced by experts at the international level. Bulgaria has warned against this shift at a meeting on this topic organised the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, and the need to preserve communities as the essential non-State actor in terms of ICH safeguarding.16 Such a shift refers to the criticism of Laurajane Smith, in which what she calls the Authorized Heritage Discourse (AHD) is perpetuated by the prominent role of heritage professionals over that of heritage bearers. This differentiation between communities and experts has been supported by several States, most notably Norway. According to the Norwegian delegation during the negotiations of the 2003 Convention, communities must be excluded from participation at the international level because they lack the required expertise to contribute effectively to international cooperation, and should thus have the primary role to perform, maintain and distribute ICH, but at the local / national level.17 Further, experts would have roles to play both at the national and international level, while communities would be restricted to the national level.18 This relegation of communities to the domestic level was the solution built into the adopted text of modalities of participation of communities and experts.19 Communities, groups and individuals play a role in the following instances: (1) consultation for the inscription in one of the Lists; 15  See Blake J, Developing a New Standard-Setting Instrument for the Safeguarding of Intangible Cultural Heritage: Elements for Consideration (Paris, 2001) 70. 16   See Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Report of the Rapporteur of the subsidiary body on the modalities for the participation of communities or their representatives, practitioners, experts, centers of expertise and research institutes in the implementation of the Convention, presented at the Second Extraordinary Session (Sofia, Bulgaria, 18–22 February 2008). Doc ITH/08/2.EXT.COM/ CONF.201/INF.4, of 12 February 2008. Annex 1. 17   UNESCO, Extracts of States Parties comments on possible modalities for the participation of communities or their representatives, practitioners, experts, centers of expertise and research institutes in the implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, Working document prepared by the Secretariat of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, January 2008, para 62. 18   Ibid, paras 76 and 82. 19   See Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (n 16). Annex 2, paras 1(2) and 1(3).

200  Lucas Lixinski (2) evaluation and selection of best practices; (3) provision of experts and practitioners to evaluate requests for international assistance; (4) evaluation of status of safeguarding of elements concerning them; (5) preparation of documents on manifestations of ICH concerning them; and (6) the establishment of operational directives for the implementation of the Convention.20 The result of this posture is that it disenfranchises communities from their own heritage, allowing States to retain their monopoly of what heritage is, and whether it is worth protecting. Not all is gloomy in the domain of community participation, however. A new set of operational directives for raising awareness about intangible heritage was approved by the General Assembly of the ICH Convention in June 2010, which advances much stronger forms of community involvement. It uses much stronger language in referring to States’ obligation to involve communities. Even though these rules refer to an apparently harmless aspect of the Convention, they can be read as a backdoor through which stronger views about the legal bite of the Convention and more effective means of community involvement are snuck into the system. These revised directives include principles on awareness-raising, which require not only that free, prior and informed consent be sought, but also that control over the uses of heritage be ultimately given to the communities, rather than the State seeking an eventual nomination.21 Despite these initiatives, the fact is that States still have a monopoly over what heritage is and what it means. Most importantly, States act as single mediators between the international instrument and local commun­ ities, determining who is a community to the international sphere, and what the international sphere can offer to communities. In that sense, States are in an ideal place to erode whatever possible role communities might have at the international level, or in connection with the inter­ national legal framework. Communities often contest their secondary (at best) position in relation to international frameworks, but, because international law-making is still largely a State prerogative, the contestation struggle always unfolds on very uneven ground. Some of this problem is partly diffused by the requirement of the ICH Convention that communities’ free, prior and informed consent be sought out before inscription in one of the instrument’s lists. The problem here becomes determining who the ‘real’ or ‘qualified’ representatives of a certain community or group where a certain manifestation of heritage devel  Ibid, para 3(1)(h).  See General Assembly of the States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage, Third Session (UNESCO Headquarters, 22–24 June 2010), Resolutions, Resolution 3.GA 5, Doc ITH/10/3.GA/CONF.201/RESOLUTIONS, of 24 June 2010, paras 100–02. 20 21

  Heritage for Whom?  201 ops are. Practice under the 2003 UNESCO Convention system shows that, in the case of manifestations of heritage belonging to an entire national group, or to a segment of society that cannot be easily identified and isolated, there are many segments that should be consulted. This type of practice is contained in the documents proving the expression of consent to inscription on the list, attached to the nomination forms.22 For instance, when proposing a joint nomination between Buenos Aires and Montevideo (the capitals of Argentina and Uruguay, respectively) for inscription of the Tango in the Representative List of the Intangible Heritage of Mankind, entities consulted included the Argentinean National Secretariat of Culture, the Uruguayan Ministry of Culture, the Legislative City Council of Buenos Aires, a number of citizens through a signed petition, the Uruguayan Association of Musicians, the association Demilonga (which calls itself the First Uruguayan Tango Forum), Joventango, the Uruguayan Tango Academy, the General Association of Tango Authors, the Montevideo City Legislature, and a list of Uruguayan artists and intellectuals who supported the inscription. In this example, of a manifestation of heritage that is by no means limited to a single community or even to a single nation, UNESCO considered that non-governmental entities, natural persons associated with the manifestation of heritage and the legislature (considered to be the democratic representative of the people par excellence) were the ones whose accordance was sufficient to meet the requirement of community participation and consent for inscription. The groups consulted were ultimately seen as sufficiently representative not only by UNESCO, but also by Tango entities which were not consulted in the process.23 In the process leading up to the inscription of the Holy Blood Procession of Bruges (therefore, a single city, as opposed to two entire countries), the following parties showed their consent: the Flemish Commission for UNESCO, the Flemish Minister of Culture, the Noble Confraternity of the Holy Blood (who pushed for the nomination at the national level), the Arts and Heritage Agency, the Bishop of Bruges, the Governor of West-Flanders, the Town Clerk and Burgomaster of Bruges, the President of the College of Europe (located in Bruges),24 natural persons, schools, a traditional musical 22   All the information regarding these nominations is available as downloadable files along with the description of each element inscribed in the list. See UNESCO Intangible Heritage, The Intangible Heritage Lists, available at (last accessed 18 August 2012). 23   See eg Centro Foro y Estudios Culturales Argentinos – FECA, ¿Qué significa y a qué nos comprometemos?, available at (last accessed 18 August 2012). 24   The College of Europe is an international institution (and thus not a Belgian Academic Institution), and in many ways a sister institution to the European University Institute, receiving students from numerous countries across Europe and the world. The letter of support of its President is noteworthy for indicating how the Holy Blood Procession is an important part of the College’s efforts to integrate its international studentship into the Bruges local community.

202  Lucas Lixinski group involved in the Procession, groups of expats who return to Bruges solely for the Procession (and who see in the Procession a vital part of their identity, and a main reason why they still feel attached to the Belgian culture), and the Confrérie du Saint-Sang (another group that participates in the organizing of the Procession). For this city-level manifestation of heritage, then, bodies linked to the Executive Branch of government were asked for their assent, along with several segments of the local community and even from abroad, in an attempt to show the international relevance of the festivity. The nomination process for the Tibetan Opera by China reveals a more limited effort in consulting with interested parties. On the nomination form, all there is regarding free, prior and informed consent (the rubric under which community participation is proven in the nomination forms) is the signature of a single individual who is identified as an ‘inheritor of Tibetan Opera’, and the stamps of two associations of Tibetan Opera. In the nomination for Chinese Sericulture and Silk Craftsmanship, however, many more actors were consulted, including the Chinese Silk Museum, provincial Departments of Culture, municipal governments, local silk museums and institutes, individuals identified as ‘inheritors’ of the practice, and a silk factory. This latter process, much more extensive than the Tibetan Opera, took into account several segments of society and government, mostly within the Executive Branch. Finally, one example of a practice that can be geographically restricted is the Candombe Cultural Space (Uruguay), an area comprising three districts of southern Montevideo inhabited largely by afro-descendant groups where every Sunday drum calls mark the start of parades throughout the neighbourhoods, a historical expression of resistance that now plays an important role in social cohesion. For this practice, only actual practitioners and members of the community were consulted, since there was no specific local association that could be consulted, suggesting that the range of actors to be consulted in order to create agency necessary for decision-making relative to ICH will necessarily vary in direct relationship with the geographical expansion of the manifestation of heritage. It has been established that the UNESCO systems for the protection of heritage have evolved somewhat in involving communities, and giving them some form of access to international fora, even if ultimate control over heritage still rests with States. However, why should communities be given a voice, as opposed to individuals? And are there any shortcomings to privileging collective entities that often defy identification over rather more easily identifiable individuals? Are there advantages? The following section explores some of these tensions.

  Heritage for Whom?  203 III.  COMMUNITIES V INDIVIDUALS

‘Community’ is a fairly vague term, but for the purposes of heritage protection it can be loosely defined as a group of people sharing history, customs knowledge and other cultural and social expressions – in sum, a group of people brought together at least partly by commonly shared intangible heritage. Heritage helps the community identify its members and exclude others; more specifically, it helps the community identify who the third parties are (if any) in situations involving the use of their heritage.25 When it comes to mediating tensions between communities and individuals, both the internal and external aspects of community identification must be considered. On the external front, the important question is how communities portray themselves before actors external to the communities. On the internal front, there are two separate questions: (1) who gets to speak on behalf of a community; and (2) how the tensions between community and individual interests and rights can be mediated. I suggest that the internal dimension, in particular the mediation of tensions, can be best addressed by looking at the experience of international human rights law. A.  How do Communities Portray Themselves? In determining how a community portrays itself, one must consider the roles it adopts in relation to other stakeholders. The determination of roles to be played by each stakeholder (and the identification of the stakeholders) in the heritage context can be aided by the use of guidelines enacted in the context of the Convention on Biological Diversity (CBD) relating to the use of traditional knowledge. The Akwé: Kon Guidelines on impact assessment of 2004 are particularly important in this respect. These Guidelines were enacted bearing in mind Article 8(j) of the CBD, which is the core provision relating to traditional knowledge, and they are intended to provide a framework that ensures the full involvement of indigenous and local communities in assessing the cultural, environmental and social impact of proposed developments on the interests and concerns of traditional communities. They take into account traditional practices and knowledge as part of the impact assessment process.26 25  See Hazucha B and Kono T, ‘Conceptualization of Community as a Holder of Intangible Cultural Heritage’ in Kono T (ed), Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development (Antwerp, 2009) 145 ff, 147. 26   See Secretariat of the Convention on Biological Diversity, Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites, and on Lands and Waters Traditionally Occupied by Indigenous and Local Communities (2004) 1–2.

204  Lucas Lixinski The Guidelines propose a collaborative framework involving governments, indigenous and local communities, decision makers and managers of development projects. In this framework, these actors can support full and effective participation of communities, taking into account their cultural, environmental and social concerns and interests. They take into account traditional knowledge and practices, and should be implemented in conjunction with other international instruments and obligations (which presumably includes heritage instruments).27 The Guidelines state that a single assessment process should integrate cultural, environmental and social issues.28 They also outline steps that should be taken when the developed project takes place in lands or sites that are sacred to or traditionally occupied by indigenous or local communities. These include the identification of all relevant stakeholders likely to be affected by the project, the establishment of effective mechan­ isms for consultation with all segments of a community, including women, youth, the elderly and other vulnerable groups, and a process of recording the views expressed by members of the community. The Guidelines also determine that the community should have veto power over a project that can impact the community, and that sufficient human, financial, technical and legal resources should be given to communities in order to ensure the effectiveness of their participation in all phases of the impact assessment process. Actors should also be identified who would be responsible for liability, redress, insurance and compensation, and measures must be identified to prevent or mitigate negative impacts.29 These steps, at least inasmuch as they concern community participation, tend to individualize community members, as opposed to referring to the community as a whole. This individualization implies a disbelief in traditional indigenous agency, in which one single individual or select group of individuals speaks on behalf of the community, and advances a more inclusive model, but one that may come into conflict with perceived notions of group identity and group rights in traditional communities, while at the same time advancing individualism. When it comes to the identification of stakeholders, for instance, the Guidelines suggest that a formal process is undertaken to identify all the community members, and that then a committee representative of all the segments of the community be established to advise on the impact assessment process.30 But, who gets to speak on behalf of the group, and make sure the possibilities offered for community involvement are taken full advantage of (even if they are few, and always subject to each State’s sovereign prerogative)? To this internal dimension of community involvement we move next.   Ibid, Guidelines 3 and 4.   Ibid, Guideline 7. 29   Ibid, Guideline 8. 30   Ibid, Guideline 13. 27 28

  Heritage for Whom?  205 B.  Who Gets to Speak on Behalf of a Group? The way communities portray themselves before others connects to another set of concerns, related to the internal dimension of assessing stakeholders in the heritage context. The community can hardly be considered a single entity with a single will, and assessing this ‘will’ is all the more problematic when someone is exercising it on behalf of the community. A community’s ‘amorphous membership’ and ‘evolving direction’ creates a central problem in the difficulty of recognizing, monitoring, transferring and enforcing claims of entitlement. A wide cultural and legal gap is created if enforcement relies on a set of customary rules which are largely unfamiliar to the forum where that enforcement is sought. The scenario creates a problem in domestic courts in proving and enforcing customary law.31 Furthermore, one can argue that the very idea of representation is colonial in framing, and that it is just a means to force indigenous communities to engage with the colonizers, often out of economic necessity.32 The Panama Kuna example is particularly enlightening to understand some of these issues. Panama has a very sophisticated piece of legislation creating a sui generis regime for the safeguarding of intangible cultural heritage. It created the ‘Law on the special intellectual property regime upon collective rights of indigenous communities, for the protection of their cultural identities and traditional knowledge’.33 With the support of an implementing Decree,34 indigenous communities’ customary law is applied. These communities express their views on the management of their heritage through their general congresses or traditional authorities, which, for legal purposes, are the holders of the rights over folklore.35 This reflects a conception of cultural heritage which prioritizes human relationships above economic rights.36 31  See Hazucha B, ‘Community as a Holder of Intangible Cultural Heritage: A Broader Public Policy Perspective’ in Kono T (ed), Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development (Antwerp 2009) 223 ff, 238; and van Zanten W, ‘Prior Informed Consent: Experiences with Ethnomusicology Recordings’ in Kono T (ed) ibid 283 ff, 302. 32   Bowrey K, ‘Indigenous Culture, Knowledge and Intellectual Property: The Need for a New Category of Rights?’ in Bowrey K, Handler M and Nicot D (eds), Emerging Challenges in Intellectual Property (Melbourne, 2011) 46 ff, 56 (citing Watson I, ‘Aboriginal Sovereignties: Past, Present and Future (Im)possibilities’ in Perera S (ed), Our Patch: Australian Sovereignties Post-2001 (Perth, 2007) 33. 33   Law No 20 of 26 June 2000. A complete translation is available in the article by De Obaldia I, ‘Western Intellectual Property and Indigenous Cultures: The Case of the Panamanian Indigenous Intellectual Property Law’ (2005) Boston University International Law Journal, 337 ff, 390–94. 34   Executive Decree No 12 of 20 March 2001. 35   See WIPO, Comparative Summary of Sui Generis Legislation for the Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/INF/3, Annex p 5. 36   See generally, for all, von Lewinski S, ‘The Protection of Folklore’ (2003) Cardozo Journal of International and Comparative Law 747 ff, 765–66.

206  Lucas Lixinski Law No 20 was enacted as the culmination of a long series of legislative acts that gradually extended protection to the mola. The mola is a type of textile craft that consists of panels of often intricate design with unnoticeable stitching, creating a beautiful visual effect. The mola panels then become the front of shirts used in everyday activities by Kuna women. An important feature to be highlighted is that the art is produced exclusively by women and that the myth behind the craft mentions the resistance of men in allowing women to master and control this craft.37 The gender dimension is thus very apparent and is partly responsible for the imbalances in the protection of the mola through Law No 20. According to Law No 20, though, the management of the rights over the exploitation of the mola are held by the traditional indigenous authorities, which are organs dominated by men, in accordance with Kuna indigenous customary law. Hence, the concerns of women, who are the producers of the molas, are ultimately disregarded. As a result, there have been awkward clashes between the individual rights of the Kuna women and the collective rights of the tribe over the molas. Some women started teaching their craft to non-Kuna individuals in contravention of decisions of the indigenous authority. They produced molas to be sold in neighbouring Costa Rica for a lower price, and did not observe the procedure determined by the indigenous authority, which aims, among other things, at controlling the quality and particularly the quantity of molas produced. Ultimately, a meeting between Kuna women and the heads of the Kuna General Congress seem to have dealt with the situation and reached a suitable compromise in favour of collective rights.38 The Panamanian example shows that different segments of the same community can feel very differently about the use of the community’s heritage. On the one hand there is the community’s council exercising the role of representative of the community (an all-male body, according to the indigenous people’s customary laws), and on the other there were the women of the community, who were in fact the producers of the manifestation of heritage involved in the dispute, and who felt very differently about the ways in which the community’s ICH should be exploited. It is of course impossible to offer a solution to this issue without stepping into the boundaries of the community’s self-determination, a version self-determination being ultimately the best way to resolve issues of control over heritage.39 But the Panamanian example serves as a reminder that, at least in principle, all segments of a given community should be involved in the decision-making process leading up to the exploitation of   Ibid, 356–59.   Ibid, 371–74. 39  See Posey DA and Dutfield G, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (Ottawa, 1996) 64. 37 38

  Heritage for Whom?  207 their intangible heritage.40 In other words, not only men and women, but also the elderly, and even children (should it be the case that the specific manifestation of heritage is performed primarily by children), ought to be involved in these decision-making processes. But how can tensions between individual and group interests be best mediated, in international law? International human rights law is the prime area of international law where some of these issues have come up, and to the potential lessons to be borrowed from that experience I turn next. C.  What Does International Human Rights Law Have to Say About All of This? The connection between a community and its cultural heritage, or the link that makes a certain community feel entitled to certain claims over its heritage, be they property claims or softer aspirations at some form of control, can be justified in two ways. The first way is the idea of inheritance or legacy, meaning that communities feel entitled to their own heritage based on the idea that they simply are the biological and cultural successors of those who have created those practices in the first place. Individuals are then simply deemed as the custodians of manifestations of heritage acting on behalf of past and future generations, and these interests are to be taken into account when making decisions regarding heritage management.41 This first justification, because it boils down to an affirmation of temporary custodianship, does not allow for property claims over heritage. Another justification is the idea that the community is an entity different from its individual members, and that it is this collective creativity that functions in each manifestation of heritage, each social and cultural practice. In this sense, heritage is a product of the moment, less bound to the past and the future, and it is easier to assert property claims. This argument can be read as a collective version of Locke’s labour theory, which is by and large the liberal justification for intellectual property rights.42 International human rights law has responded to the tensions between individual and community rights. The tension between individual and group rights exists both at the doctrinal and adjudication levels. As to the latter, it can be argued that judicial or quasi-judicial procedures for 40   Another example of internal divisions within a community related to the exploitation of ICH is that of the Body Shop and the Kayapó Indians of Brazil. For an analysis of this incident, see ibid 52. 41  See Hazucha B and Kono T, ‘Conceptualization of Community as a Holder of Intangible Cultural Heritage’ in Kono T (ed) (n 31) 145 ff, 148 . 42   Ibid, 145 ff, 148–49.

208  Lucas Lixinski considering complaints under existing human rights mechanisms are supposed to address only individual claims, and not claims of a larger group (prohibition of actio popularis). The actio popularis tension is always present in HR adjudication, though, to the extent that in order to resolve an individual case it is often necessary to adopt measures that will have effects on the community at large, and benefit other people in situations similar to the victim’s. This is at least the approach adopted by the InterAmerican Court of Human Rights (IACtHR) in its jurisprudence on reparations, when it comes to determining ‘other forms of reparation’.43 A related argument goes on to question the very justiciability of group rights’ claims in international human rights adjudication. One of the few group rights provisions in international human rights instruments is the provision on the right to self-determination, contained in Article 1 common to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). A survey of the Human Rights Committee’s jurisprudence in cases involving Article 1 of the ICCPR shows that the Committee has repeatedly declared the non-justiciability of rights protected under Article 1, and at most has transformed these claims into claims under other, individual rights protected by the Covenant.44 These adjudicatory tensions are a reflection of a much more nuanced scholarly debate. While it is not my goal to exhaust this debate, as it would 43   This has been done in several cases before the IACtHR, in which several measures have been determined, as a means to ensure that similar violations do not take place again in the future. These include police training programs (IACtHR, Case of López-Álvarez v Honduras, Merits, Reparations and Costs, Judgment of 1 February 2006, Series C No 141), the construction of memorials (IACtHR, Case of the ‘Mapiripán Massacre’ v Colombia, Merits, Reparations and Costs, Judgment of 15 September 2005, Series C No 134), medical centres (IACtHR, Case of the Plan de Sánchez Massacre v Guatemala, Merits, Judgment of 29 April 2004, Series C No 105), the creation of scholarship funds (IACtHR, Case of Myrna Mack-Chang v Guatemala, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No 101) and even the modification of internal legislation incompatible with obligations under the American Convention (IACtHR, Case of ‘The Last Temptation of Christ’ (Olmedo-Bustos et al) v Chile, Merits, Reparations and Costs, Judgment of 5 February 2001, Series C No 73). The latter hypothesis derives from a specific obligation under the American Convention that requires a State Party to have its legislation in accordance with the standards of the Convention (Article 2). For more on the jurisprudence of the IACtHR on reparations, see García Ramírez S, ‘La Jurisprudencia de la Corte Interamericana de Derechos Humanos en Materia de Reparaciones’ in La Corte Interamericana de Derechos Humanos: Un Cuarto de Siglo 1979-2004 (Corte Interamericana de Derechos Humanos, San José, 2005) 1 ff, 81. 44   See for instance the decisions of the Human Rights Committee in: Human Rights Committee, Communication No 547/1993, Apirana Mahuika et al v New Zealand, UN Doc CCPR/C/70/D/547/1993, 15 November 2000 (concerning Maori fisheries); Human Rights Committee, Communication No 413/1990, AB et al v Italy, UN Doc CCPR/C/40/D/413/1990, 5 November 1990 (concerning the German minority in South Tirol), to name but two examples. The Human Rights Committee has, however, at least on one occasion transformed claims under the right to self-determination (Article 1) into claims under the right to minority protection (Article 27), in what seems to be an application of the principle of iura novit curia. See Human Rights Committee, Communication No 167/1984, Lubicon Lake Band v Canada, UN Doc CCPR/C/38/D/167/1984, 10 May 1990, para 13(4).

  Heritage for Whom?  209 go beyond the scope of this piece, it is necessary to sketch some of it, and draw on the elements that can enlighten the present discussion. On the side of criticism, it may be argued fundamentally that to protect cultural heritage through individual human rights implies accepting a liberal human rights framework centred on individual rights, and on the idea that group interests boil down to individual interests. Advocates of the idea of group rights contend that collapsing group rights into individual rights reduces a much more complex structure of social relations to the sum of its individual components,45 or that certain rights cannot be exercised individually, and hence there must be group rights.46 While these are good points, it must not be forgotten that group rights may be regarded as collective dimensions of individual rights (such as the individual rights protected in Article 27 of the ICCPR). This perspective avoids the necessity of creating an entirely separate category of group rights. Concerning the former argument, as philosophically and historically constructed, the goal of rights is to protect individuals against oppressive groups. Thus, to protect group rights would necessarily bring into question the eventual clashes between the interests of groups and opposing interests of individuals belonging to such groups.47 And several group interests have been protected as individual rights for a long time, and there does not seem to be much of a problem, in international legal practice, with translating group interests into individual rights,48 especially if one considers that instruments protecting minorities focus on the language of individual rights (at least to the extent that the individual claiming rights under these instruments are considered to be speaking on behalf of the cultural groups they belong to).49 Further, to the extent that the foundation of groups is to promote the well-being of individuals, group interests must be translated into individual interests.50 45  See Johnston DM, ‘Native Rights as Collective Rights: A Question of Group SelfPreservation’ (1989) Canadian Journal of Law and Jurisprudence 19 ff, reprinted in Kymlicka W (ed), The Rights of Minority Cultures (Oxford/New York, 1995) 179 ff, 180–82 (arguing that communitarianism can be an alternative to a rights-based ethics). 46  See Dinstein Y, ‘Collective Human Rights of Peoples and Minorities’(1976) International and Comparative Law Quarterly 102 ff, 115. 47  See Hartney M, ‘Some Confusions Concerning Collective Rights’ (1991) Canadian Journal of Law and Jurisprudence 293 ff, reprinted in Kymlicka W (ed) (n 45) 202 ff, 203. 48   Ibid, 202 ff, 219; Johnston DM (n 45), reprinted in Kymlicka W (ed) (n 45) 179 ff, 185 (mentioning an argument according to which collective rights are meaningless and individual rights collectively asserted are a common phenomenon); and Kukathas C, ‘Are There Any Cultural Rights?’ (1992) Political Theory 105 ff, 107, reprinted in Kymlicka W (ed) (n 45) 228 ff. 49   In this sense, see Article 27 of the ICCPR, as well as the Council of Europe’s Framework Convention on the Protection of Minorities. As to the latter, it is interesting to note that the original recommendation leading to the adoption of this Convention adopted the language of group rights, and that this language was abandoned in favour of individual rights in the final text. For a commentary on this evolution, see Jovanović MA, ‘Recognizing Minority Identities through Collective Rights’ (2005) Human Rights Quarterly 625 ff, 628–29. 50  See Hartney M (n 47) 293, reprinted in Kymlicka W (ed) (n 45) 202 ff, 208.

210  Lucas Lixinski Another possible argument is that to protect minorities could lead to essentializing them, in that individual interests would be suppressed in favour of a certain understanding of the group’s needs. This liberal individualist argument goes on to say that groups do exist, but as associations of individuals, and the interests of groups should not prevail over the interests of its individuals,51 the rights of individuals being a conditio sine qua non for the protection of groups, a position recognized even by advocates of group rights.52 While some defending this argument come to the point of denying communities the right to self-preservation – a position which I do not share53 – their point is valid in saying that clashes between individual and group rights are in fact clashes between rights of individuals as members of a culturally distinct community on the one hand, and rights of individuals as part of the common political community on the other.54 To a certain extent, this point replicates the challenge posed in the introduction of communities being caught in the cross-fire between individuals and States. Moreover, current debates over individuals’ roles in society no longer dissociate the latter from the groups in which they live, and explore how an individual’s presence within a group shapes their personality, aspirations, and ultimately rights pretensions.55 That is to say, a nuanced view of individual human rights nowadays will necessarily take group-originated dimensions of an individual into consideration, referring to a ‘sociallylocated individual’, rather than merely an individual.56 Naturally, my defense of this position attains to a rather ‘Westernized’ conception of individuals and societies, and I concede it will not be applicable in all cases. However, as many cases can be addressed with this framework in mind, I strongly believe that individual human rights can play an important role in occupying the ‘adjudicatory vacuum’ of group rights, even if only as a temporary fix. In the specific context of intangible heritage, according to one commentator on the ICH Convention, while the notion of collective cultural rights seems to come from the text of the Convention, such an interpretation would be erroneous, as the Convention clearly refers to universal human rights standards, obviously based on  See Kukathas C (n 48) 105 ff, 114, reprinted in Kymlicka W (ed) (n 45) 228 ff.  See Jovanović MJ (n 49) 625 ff, 646. 53   While I do not think communities are entitled to a right to self-preservation, I believe individuals are entitled to pursue the preservation of the communities they belong to. This can in fact be one of the core concerns behind the protection of intangible heritage. For an argument in favour of the right to self-preservation, see Johnston (n 45) DM, ‘Native Rights as Collective Rights: A Question of Group Self-Preservation’, Canadian Journal of Law and Jurisprudence, 1989, p 19 ff, reprinted in Kymlicka WW (ed) (n 45), The Rights of Minority Cultures, (Oxford/New York, 1995) p 179 ff, p 186. 54  See Kukathas C (n 48) 105 ff, 117–18, reprinted in Kymlicka W (ed) (n 45) 228 ff. 55  See Gillman D, The Idea of Cultural Heritage (Leicester, 2006) 19. 56   Ibid, 4. 51 52

  Heritage for Whom?  211 individual human rights.57 Which is to say, heritage is to be held up against universal human rights standards (eg, practices such as female circumcision are unlikely to be listed), but also human rights law can help in the protection of culture, to the extent cultural practices can be individualized (eg, the practice of Tibetan Opera by an entire population can be protected indirectly through the protection of an individual’s right to free expression in performing this form of opera). This interpretation of heritage instruments as protecting individual human rights over group rights is further reinforced by another point of view which aligns the ‘individual v group rights’ tension with the discussion of the interests to be protected by heritage. According to one commentator involved in this debate,58 to look at heritage from the perspective of groups means to favour the national interests at stake, which may not always be protective of heritage,59 or may protect heritage at the expense of other peoples’ heritage.60 On the other hand, looking at heritage from the perspective of individual rights provides room for looking at heritage as a ‘global common’, or ‘the common heritage of mankind’, which gives it a truly cosmopolitan character, and enhances the desirability of its protection and safeguarding, precisely because it becomes part of everyone’s identity, present and future, and not the identity of a certain group alone. This position seems to be the one adopted by the ICH Convention. The argument based on intergenerational equity as a ground for protecting cultural heritage (that is, the idea that heritage must be safeguarded for the sake of future generations) is an argument that seems to favour a group perspective, as it is not possible to protect an individual that does not yet exist.61 Intergenerational equity is an important principle for the protection of cultural heritage. One of the main ideas behind the articulation of cultural heritage as a ‘common concern of mankind’ is the idea that future generations are entitled to share into this heritage, and nothing short of concerted global action can guarantee that. Hence, the group perspective for the sake of future generations is an important factor to be considered in the design of legal mechanisms for safeguarding cultural heritage. However, the protection of heritage in the interest of future generations is but one of the goals of this branch of international law, and it is by no means a compelling argument against the use of individual 57  See Blake J, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (Leicester, 2006) 35. 58   Gillman D (n 55) 1–3. 59   An example of this is the story of the Bamiyan Buddhas, destroyed by the Taliban regime of Afghanistan in 2001. One of the claims made at the time was that this was solely an Afghan domestic affair, and the international community had no say in the matter. For this account, see Gillman D (n 55) 4–5. 60  See Lowenthal D, The Heritage Crusade and the Spoils of History (Cambridge/New York, 1998) 230–41; and Gillman D (n 55) 52. 61  See Jovanović MA (n 49) 625 ff, 635.

212  Lucas Lixinski rights, that can be even seen as indirectly protecting the interests of future generations, since by granting protection in the present one necessarily safeguards the good for the future. Another argument generally supportive of group rights, but particularly suitable to the heritage debate, is to say that what differentiates a group from the mere sum of its individual components is heritage. The group has a separate existence from that of its members through commonly shared heritage, and thus it is precisely heritage that makes it impossible for group interests to be reduced to those of its members.62 There is no way around this argument, I suggest. However, there are means of articulating group culture in a way that also makes sense for individuals, and the debate on interculturalism is an example of this possibility. To the extent that multiculturalism is the official State policy of cultural inclusion, the argument goes: interculturalism represents how multicultural values are translated individually.63 Furthermore, seen as judicial practice in international human rights does not seem to have a problem with translating group claims into individual ones, the argument of heritage as the factor that prevents reducing a group to the sum of its parts still holds true; what is desired instead is that the individual be thought of as more than just an individual. The experience in the field of international human rights law teaches us that there is some wiggle room, even under the classic liberal (individualistic) paradigm, to create some form of standing for communities as entities separate from their individual members. At the same time, though, the critique that prompted the move to individual rights (defense against the dictatorship of the majority) still holds true, especially if one takes the Panamanian Kuna case as an example of situations that can easily happen elsewhere. Nevertheless, this sort of framing suggests that community aspirations might be thrown out the window fairly easily, and are overall pernicious influences. Far from that, my suggestion is that, while inter­ national human rights law and the experiences with the Panamanian Kuna and the Akwé: Kon Guidelines support a wary approach to the protection of communities above individual interests, there is a strong need for the protection of communities in international law, perhaps not a state of affairs where communities are endowed with human rights, but one in which they are given platforms internationally, and allowed to take part in decision-making with respect to matters affecting their identity. But, what does this all mean for international law in general? What is the lesson to be drawn from international cultural heritage law? 62   Ibid, 633, citing Thornberry P, International Law and the Rights of Minorities (Oxford/New York) 57. 63  See Kymlicka W, ‘Multicultural States and Intercultural Citizens’ (2003) Theory and Research in Education 147 ff.

  Heritage for Whom?  213 IV.  A HUMAN DIMENSION OF INTERNATIONAL CULTURAL HERITAGE LAW?

International cultural heritage law, because it built upon international human rights law in identifying the stakes for its own mandate, has gradually moved away from strict understandings of State ownership over heritage. Even though early instruments in the field already acknow­ ledged, at least as an aspiration, that heritage belonged to ‘peoples’ and not to ‘states’, in practice States were the ones given the prerogative to decide what heritage was, and whether it was worth protecting. More recent instruments, while not exactly breaking the stranglehold of States, have certainly taken steps to weaken it, as community participation becomes an essential condition in international cultural heritage law. However, this requirement is still fairly weak, and can be worked around by States, perhaps partly because of the poor position communities are put in, as an obstacle to be overcome by both individuals and States. But it is an important step forward. International human rights law can be used as an important reference point in fully understanding how communities can have a place in heritage-related international legal processes, and how community aspirations can relate to individual ones, but this must be taken with a pinch of salt. All of this leads to the assertion of an emerging human dimension to international cultural heritage law, one in which communities (and, in some cases, individuals) are actually given more of a voice. Whether this will someday be translated into actual remedies, or stronger forms of participation, is still to be seen. An international law for common goods has certainly a lot to learn from the experience of international heritage law in addressing the true holders of common goods, peoples, and not States. More specifically, reliance on human rights, while a powerful means to quickly advance a post-State logic, brings with it the unintended consequence of further ostracizing communities, the ones that are actually capable of looking after common goods, beyond the State and beyond blind individualism.

10 Underwater Cultural Heritage as an International Common Good TULLIO SCOVAZZI

T

I.  AN UNCONTESTED RECOGNITION?

HE FRIEND AND colleague to whom this collection of essays is dedicated has clearly expressed in a number of writings the view that the protection of cultural heritage is becoming more and more a concern of the international community and that certain obligations in this regard are imposed on States as a matter of general international law.1 These obligations, which have an erga omnes character, are based on the idea ‘that the cultural heritage of any people is the object of a general interest of the international community in its conservation and enjoyment’.2 With specific reference to underwater cultural heritage, he has emphasized the uncontested recognition by the international community of the public inter­ est in the conservation of underwater cultural heritage against the risk of destruction and dispersion which is posed by unregulated commercial exploi­ tation of a heritage that is still largely unknown and that is indispensable to the advancement of the knowledge of the history of man and civilization.3

I do share the view that a normative trend is developing in the direction of the manifestation of a general interest in the protection of the cultural heritage. But unfortunately I am not convinced that this trend is today ‘uncontested’, as far as the underwater cultural heritage is concerned.4 It 1  See, recently, Francioni F, ‘The Evolving Framework for the Protection of Cultural Heritage in International Law’ in Borelli S and Lenzerini F (eds), Cultural Heritage, Cultural Rights, Cultural Diversity – New Developments in International Law (Leiden/Boston, 2012) 3 ff, 7. I am personally glad to have shared with Francesco several research projects, always car­ ried out in a very friendly and cooperative spirit. They have resulted in a number of publica­ tions, including some on cultural heritage. 2   Ibid, 25. 3   Ibid, 21. 4   On the questions discussed in this chapter see, in general, Strati A, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (The

216  Tullio Scovazzi is my impression that the present international law regime for the protec­ tion of underwater cultural heritage lags behind the regimes already established for other kinds of cultural heritage under, respectively, the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage or the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. The main obstacle on the way to a full recognition of a public inter­ national interest in the protection of the underwater cultural heritage is to be found in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).5 The UNCLOS does not provide a comprehensive regime for the underwater cultural heritage. Only two provisions are devoted to what is called in the UNCLOS ‘archaeological and historical objects’, namely Article 149, included in Part XI (‘the Area’), and Article 303, included in Part XVI (‘General Provisions’). They are very different in their contents and objectives. The idea that underwater cultural heritage is to be considered as an international common good may be noticed in the former provision, but not in the latter, which basically goes in an opposite direction. II.  THE BENEFIT OF MANKIND AS A WHOLE

Under Article 149 UNCLOS, all objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.

The provision, being limited to ‘the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’, as the Area is defined in Article 1 (1) UNCLOS, has a special scope of application and conse­ quently prevails, where the Area is concerned, over Article 303, which has a general scope of application and includes any kind of marine waters and seabed. Hague, 1995); Camarda G, Scovazzi T (eds), The Protection of the Underwater Cultural Heritage – Legal Aspects (Milan, 2002); O’Keefe PJ, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (Leicester, 2002); Garabello R and Scovazzi T (eds), The Protection of the Underwater Cultural Heritage – Before and after the 2001 UNESCO Convention (Leiden/Boston, 2003); Aznar Gómez MJ, La protección internacional del patrimonio cultural subacuático con especial referencia al caso de España (Valencia, 2004); Dromgoole S (ed), The Protection of the Underwater Cultural Heritage – National Perspectives in Light of the UNESCO Convention 2001 (Leiden/Boston 2006); and Dromgoole S, Underwater Cultural Heritage and International Law (Cambridge, 2013). 5  See Scovazzi T, ‘The Law of the Sea Convention and Underwater Cultural Heritage’ (2012) International Journal of Marine and Coastal Law 753 ff.

  Underwater Cultural Heritage  217 The particular regime of common heritage of mankind, set forth under Part XI UNCLOS for the Area and its mineral resources,6 does not apply to archaeological and historical objects, which are man-made artefacts and cannot be considered as mineral resources.7 However, Article 149 pro­ vides that such objects must be preserved or disposed of ‘for the benefit of mankind as a whole’. This seems to be something close to the objectives for which the regime of common heritage of mankind was established in the case of mineral resources. Leaving aside the lack of precision in its wording,8 Article 149 contains two excellent ideas from the point of view of ensuring an appropriate pro­ tection to the underwater cultural heritage. First, archaeological and historical objects must be preserved or dis­ posed of for ‘the benefit of mankind as a whole’. Uses having a public character, such as research or exhibition, are given priority. Uses that are intended for private interest, such as trade and personal gain, are given little weight, if any. Second, some categories of States which have a link with the objects are given preferential rights, which put them in a better position than all the other States. However, Article 149 does not specify the content of these rights and the manner in which they should be harmonized with the bene­fit of mankind as a whole. Some details on the application of Article 149 are today provided by the regulations on prospecting and exploration for certain mineral resources in the Area adopted by the International Sea-Bed Authority, the inter­ national organization through which States Parties organize and control activities in the Area, particularly with a view to administering its resources (Article 157(1)). These regulations relate to polymetallic nod­ ules, to polymetallic sulphides and to ferromanganese crusts and have been adopted, respectively in 2000, 2010 and 2012. They provide for an obligation of notification, if ‘objects of an archaeological or historical nature’9 are found in the Area10:   ‘The Area and its resources are the common heritage of mankind’ (Article 136).   ‘For the purposes of this Part: (a) “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (. . .)’ (Article 133). 8   For instance, Article 149, which applies to ‘objects of an archaeological and historical nature’, seems to require that the objects in question have both an archaeological and his­ torical nature. This would exclude from the scope of the provision objects which do not have a millennium-honoured background. To avoid a manifestly unreasonable result, it is better to interpret Article 149 in a broader sense, as covering cultural objects in general, in conform­ ity with the objective of preserving all kinds of underwater cultural heritage. Moreover, the difference between ‘the State or country of origin’, ‘the State of cultural origin’ and ‘the State of historical and archaeological origin’ is far from being clear. 9   Here the ‘and’ between ‘archaeological’ and ‘historical’ becomes, more correctly, an ‘or’. 10   See also infra, para 4 D, as regards the regime provided for under the Convention on the Protection of the Underwater Cultural Heritage. 6 7

218  Tullio Scovazzi A prospector shall immediately notify the Secretary-General in writing of any finding in the Area of an object of an archaeological or historical nature and its location. The Secretary-General shall transmit such information to the DirectorGeneral of the United Nations Educational, Scientific and Cultural Organization (Reg 8 of the Regulations for the nodules). The contractor shall immediately notify the Secretary-General in writing of any finding in the exploration area of an object of an archaeological or historical nature and its location. The Secretary-General shall transmit such information to the Director-General of the United Nations Educational, Scientific and Cultural Organization. Following the finding of any such object of an archaeo­ logical or historical nature in the exploration area, the contractor shall take all reasonable measures to avoid disturbing such object (Reg 34 of the Regulations for the nodules). A prospector shall immediately notify the Secretary-General in writing of any finding in the Area of an object of actual or potential archaeological or historical nature and its location. The Secretary-General shall transmit such information to the Director-General of the United Nations Educational, Scientific and Cultural Organization (Reg 8 of the Regulations for the sulphides and Reg 8 of the Regulations for the crusts). The contractor shall immediately notify the Secretary-General in writing of any finding in the exploration area of any human remains of an archaeological or historical nature, or any object or site of a similar nature and its location, including the preservation and protection measures taken. The SecretaryGeneral shall transmit such information to the Director-General of the United Nations Educational, Scientific and Cultural Organization and any other com­ petent international organization. Following the finding of any such human remains, object or site in the exploration area, and in order to avoid disturbing such human remains, object or site, no further prospecting or exploration shall take place, within a reasonable radius, until such time as the Council decides otherwise after taking account of the views of the Director-General of the United Nations Educational, Scientific and Cultural Organization or any other competent international Organization (Reg 37 of the Regulations for the sulphides).11

The second and third sets of regulations have a broader scope, insofar as they cover also objects of only potential archaeological or historical nature, they aim at protecting also human remains and they give to the Council of the Authority the power to take decisions on whether exploration activi­ ties can be resumed after their suspension within a reasonable radius from the objects or remains. However, none of the three sets of regulations specifies the content of the preferential rights enjoyed by certain States under Article 149 UNCLOS and the manner in which they should be harmonized with the concept of benefit of mankind as a whole. These kinds of questions have little to do with mining activities. 11

  Reg 37 of the Regulations for crusts has an almost identical wording.

  Underwater Cultural Heritage  219 III.  THE PRIORITY OF SALVAGE LAW OR OTHER RULES OF ADMIRALTY

Under Article 303 UNCLOS, 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. 3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cul­ tural exchanges. 4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.

Article 303(1) sets forth two very general obligations of protection and cooperation which apply to all archaeological and historical objects, wher­ ever at sea they are found. Because of its broad content, the provision does not say very much. But some legal consequences can be drawn from it. An obligation to cooperate can be seen as implying a duty to act in good faith in pursuing a given objective and in taking into account the position of the other interested States. A State which knowingly allowed the destruc­ tion of objects belonging to the underwater cultural heritage or a State which persistently rejected any request by other States to cooperate in the protection of such heritage would be responsible for an internationally wrongful act. While the sovereignty that the coastal State enjoys within the maritime internal waters and the territorial sea also covers archaeological and his­ torical objects, Article 303(2), also allows the coastal State to exercise some rights in the waters between the external limit of the territorial sea (12 nautical miles in most cases) and the 24-mile limit from the baselines of the territorial sea. But the content of these rights is far from clear because of the many complications inherent in the text of Article 303(2). The main aspect of the provision is the reference it makes to Article 33, according to which in a zone called the contiguous zone the coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, as well as punish infringement of the above laws and regu­ lations committed within its territory or territorial sea. The contiguous zone has to be proclaimed by the interested State and may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

220  Tullio Scovazzi If literally understood, Article 303(2) suggests that the removal of archaeological and historical objects located between the 12 and the 24 nautical miles can determine a violation of the domestic legislation of the coastal State on matters which have little or nothing to do with the cul­ tural heritage, such as smuggling, public health and immigration. Under the UNCLOS logic, it is only as a consequence of the competences which a State can already exercise in dealing with cigarette smugglers, clandes­ tine immigrants or infectious patients that it can exercise other compe­ tences for the protection of the underwater cultural heritage. The wisdom of such a logic, which implies that underwater cultural heritage does not deserve be protected per se, is not fully convincing, to say the least. Other problems arise from the wording of the same Article 303(2). The coastal State is granted some rights only ‘in order to control traffic’ in archaeological and historical objects, but cannot carry out any activity to ensure the protection of such objects. While it is empowered to prevent and sanction their ‘removal from the sea-bed’, the coastal State is defence­ less if such objects, instead of being removed, are simply destroyed in the very place where they have been found (for instance, if they are destroyed by a company holding a licence for oil exploitation). Again, it is difficult to subscribe to the logic of such a result. It is inevitable to ask the question why such a complicated provision has been included in the UNCLOS. An answer can be found in what a learned author has written: For reasons of principle whose importance transcended any interests in marine archaeology as such, the maritime powers were unwilling to yield to any fur­ ther erosions in the freedoms of the seas, particularly regarding coastal state jurisdiction over non-resource uses beyond the territorial sea. The inclusion of paragraph 2 of article 303 in the general provisions of the Convention rather than the texts dealing with jurisdiction, and the indirect drafting style employ­ ing cross-references and presumptions, were intended to emphasize both the procedural and substantive points that the regimes of the coastal state jurisdic­ tion as elaborated by the Second Committee of the Conference were not being reopened or changed.12

A number of conclusions can be drawn from the explanations provided above. First, Article 303(2) was proposed by the major maritime powers. Second, it was deliberately elaborated in an ‘indirect drafting style’. Third, those who conceived Article 303(2), did not care about the protection of 12   Oxman BH, ‘Marine Archaeology and the International Law of the Sea’ (1988) Columbia VLA Journal of Law and the Arts 353 ff, 363. ‘To create a new “archaeological” zone, or expressly to expand the competence of the coastal state to include regulation of diving for archaeological objects in the contiguous zone, would amount to converting the contiguous zone from an area where the coastal state has limited enforcement competence to one where it has legislative competence’ (Oxman BH, ‘The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)’ (1981) American Journal of International Law 211 ff, 240).

  Underwater Cultural Heritage  221 the underwater cultural heritage, but were prompted by so-called more transcendent reasons of principle. Fourth, these reasons consisted in pre­ venting any further erosion against the principle of freedom of the sea besides the rights over exploitation of natural resources that had already been granted to the coastal State under the newly established regime of the 200-mile exclusive economic zone. Rather than envisaging a substan­ tive regime to deal with the new concern of the protection of the under­ water cultural heritage, those who conceived this provision were more concerned with devising legalistic lucubrations (in this case called pre­ sumptions) that were in fact intended to prevent the granting of any meaningful rights to coastal States. Fifth, the question of underwater cul­ tural heritage was discussed too late and too hastily by the UNCLOS drafters to be addressed and solved in a sensible way. While specific provisions apply to the space within 24 nautical miles on the one hand, and to the Area (Article 149) on the other, the UNCLOS does not define any regime relating to the archaeological and historical objects found on the continental shelf or in the exclusive economic zone,13 that is the space located between the 24-mile external limit of the archaeological contiguous zone14 and the 200-mile internal limit of the Area. The rights of the coastal State on the continental shelf are limited to the exploration and exploitation of the relevant ‘natural resources’, as explicitly stated in Article 77(1) UNCLOS, and cannot be easily extended to man-made objects, such as those belonging to the underwater cultural heritage.15 The legal vacuum left by Article 303 greatly threatens the protection of cultural heritage, as it brings into the picture the abstract idea of freedom of the seas that could easily lead to a first-come-first-served approach. Availing himself or herself of the principle of freedom of the sea, any per­ son on board any ship could explore the continental shelf adjacent to any coastal State, bring any archaeological and historical objects to the sur­ face, become their owner under a domestic legislation (in most cases, the flag State legislation), carry the objects into certain countries and sell them on the private market. If this were the case, there would be no guarantee that the objects would be disposed of for the public benefit rather than for private commercial gain. Nor could a State which has a cultural link with the objects prevent the pillage of its historical heritage. The danger of free­ dom of fishing for underwater cultural heritage is far from being merely theoretical. 13   The reference to the exclusive economic zone seems redundant, as the objects of archae­ ological or historical nature are more likely to lie on the seabed than to float in the waters of the exclusive economic zone. 14  Or the 12-mile limit of the territorial sea, if the coastal State has not established an archaeological contiguous zone. 15   It seems too artificial to assume that archaeological and historical objects which are found embedded in the sand or encrusted with sedentary living organisms can be likened to natural resources.

222  Tullio Scovazzi The possibility of uncontrolled activities is aggravated by Article 303(3), which subjects the general obligations of protection and cooperation pro­ vided for in para 1 to a completely different set of rules, that is ‘the rights of identifiable owners, the law of salvage and other rules of admiralty, or laws and practices with respect to cultural exchanges’. Salvage law and other rules of admiralty are given an overarching status by Article 303.16 If there is a conflict between the objective to protect the underwater cultural heritage on the one hand, and the provisions of salvage law and other rules of admiralty on the other, the latter prevail.17 The UNCLOS does not clarify the meaning of ‘the law of salvage or other rules of admiralty’. In many countries, the notion of salvage (sauvetage in French) is only related to the attempts to save a ship or cargo on behalf of its owners from imminent marine peril. But it is never intended to apply to ancient sunken ships or to cargo carried by them, which, far from being in peril, have been definitively lost for hundreds or thousands of years. On the contrary, in a minority of common law countries the con­ cept of salvage law has been enlarged by some court decisions to cover activities which have very little to do with the proper sphere of salvage. For example, the United States Court of Appeals for the Fourth Circuit in the decision rendered on 24 March 1999 (case RMS Titanic, Inc v Haver)18 stated that the law of salvage and finds is a ‘venerable law of the sea’. It was said to have arisen from the custom among ‘seafaring men’ and to have ‘been preserved from ancient Rhodes (900 B.C.E.), Rome (Justinian’s Corpus Juris Civilis) (533 C.E.), City of Trani (Italy) (1063), England (the Law of Oleron) (1189), the Hansa Towns or Hanseatic League (1597), and France (1681), all articulating similar principles’. Looking at the conclusions reached in their decisions on underwater cultural heritage, it would seem that some American courts do have access to all the ancient sources from where such a ‘venerable law of the sea’ can be inferred, do know all the mysterious languages in which the relevant rules have been written, do interpret such rules correctly and do seize the intrinsic consistency between one source and the other. This is impressive indeed. Coming to the practical result of such a display of legal erudition, the law of finds seems to mean that ‘a person who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession becomes the property’s owner’19. The application of the law of salvage, which seems to be something different from the law of finds, gives the salvor a lien (or 16   Luckily enough, Article 149 does not subject the heritage found in the Area to salvage law and other rules of admiralty. 17   It is difficult to interpret Article 303, para 3, as it only referred to cases in which archaeo­ logical and historical objects are not involved. 18   Text in ILM 1999, 807. 19   Decision quoted supra, n 18.

  Underwater Cultural Heritage  223 right in rem) over the object. Yet the expression ‘the law of salvage or other rules of admiralty’ simply means the application of a first-come-firstserved or freedom-of-fishing approach which can only serve the interest of private commercial gain. It is not clear how a ‘venerable’ body of rules, that is said to have devel­ oped in times when nobody cared about the underwater cultural heritage, could today provide any sensible tool for dealing with the protection of the heritage in question. The almost theological expressions employed by the supporters of the law of salvage and the law of finds (‘return to the mainstream of commerce’, ‘admiralty’s diligence ethic’, ‘venerable law of the sea’, etc) are dubious euphemisms that may be interpreted as an incen­ tive to the looting of the underwater cultural heritage. The fact remains that the body of ‘the law of salvage or other rules of admiralty’ is today typical of a few common law systems, but remains a complete stranger to the legislation of other countries. Because of the lack of corresponding concepts, the very words ‘salvage’ and ‘admiralty’ can­ not be properly translated into languages different from English.20 In the French and Spanish official texts of the UNCLOS, they are rendered with expressions (droit de récupérer des épaves et (. . .) autres règles du droit maritime; las normas sobre salvamento u otras normas del derecho marítimo) which have a broader and very different meaning. All this worsens the already sad picture of Article 303. Does this provi­ sion, while apparently protecting the underwater cultural heritage, lead to a regime which results in the destination of this heritage only for com­ mercial purposes? Does Article 303 give an overarching status to a body of rules that cannot provide any sensible tool for the protection of the her­ itage in question? The doubt is far from being trivial. IV.  THE 2001 CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE

The subject matter covered by Articles 149 and 303 UNCLOS falls today also under the Convention on the Protection of the Underwater Cultural Heritage (CPUCH), adopted on 2 November 2001 within the framework of the United Nations Organization for Education, Science and Culture (UNESCO). The CPUCH was adopted by vote on 2 November 2001, with

20   As it results from the records of the meeting of 22 August 1980, ‘it was also decided that in translating the term “rules of admiralty” from the original English into other languages account should be taken of the fact that this was a concept peculiar to Anglo-Saxon law and the corresponding terms in other legal systems should be used to make it clear that what was meant was commercial maritime law” (UN Doc A/CONF.62/L.58, 22 August 1980, para 14).

224  Tullio Scovazzi 87 States voting in favour, four against21 and 15 abstaining,22 and entered into force on 2 January 2009. The lack of consensus at the time of adoption and the considerable time needed for the entry into force show that sev­ eral States are still hesitant or even contrary to accept the innovating regime established under this treaty. For the time being (April 2014), the number of the parties to the CPUCH is limited to 46. The CPUCH may be seen as a reasonable defence of the underwater cultural heritage against the results of the counterproductive regime of the UNCLOS. The main defensive tools are three, namely: the elimination of the undesirable effects of the law of salvage and finds; the exclusion of a first-come-first-served approach for the heritage found on the continen­ tal shelf; and the strengthening of regional cooperation. A) While most countries participating in the negotiations for the CPUCH concurred in rejecting the application of the law of salvage and finds to underwater cultural heritage, a minority of States were not pre­ pared to accept an absolute ban on it. To achieve a reasonable compro­ mise, Article 4 CPUCH (‘Relationship to law of salvage and law of finds’) provides as follows: Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds, unless it: (a) is authorized by the competent authorities, and (b) is in full conformity with this Convention, and (c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection.

This provision is to be understood in connection with Article 2(7) (‘under­ water cultural heritage shall not be commercially exploited’) and with the rules contained in the Annex, which form an integral part of the CPUCH. In particular, under Rule 2 of the Annex, 21  Namely, the Russian Federation, Norway, Turkey and Venezuela. The United States which was not entitled to vote (not being a member of UNESCO at that time), regretted that it could not accept the CPUCH because of objections to several key provisions relating to jurisdiction, the reporting scheme, warships and the relationship of the Convention to the UNCLOS. The negative vote of Turkey and Venezuela was due to disagreement on the CPUCH provisions on peaceful settlement of disputes (Article 25) and reservations (Article 30). 22   Namely, Brazil, Czech Republic, Colombia, France, Germany, Greece, Iceland, Israel, Guinea-Bissau, Netherlands, Paraguay, Sweden, Switzerland, United Kingdom, Uruguay. The abstentions were based on different, and sometimes opposite, reasons. For instance, the Greek delegate stated inter alia that ‘despite the fact that throughout the negotiations at UNESCO the majority of governmental experts were in favour of extending coastal rights over underwater cultural heritage on the continental shelf, the Draft Convention does not even mention the term “coastal State”’. According to the French delegate, ‘la France est en désaccord avec le projet sur deux points précis: le statut des navires d’Etat et les droits de juridiction, dont nous considérons qu’ils sont incompatibles avec les dispositions de la Convention sur le droit de la mer’ [France does not agree with the draft on two points: the status of warships and the rights of jurisdiction, that we consider as incompatible with the provisions of the Convention on law of the sea].

  Underwater Cultural Heritage  225 the commercial exploitation of underwater cultural heritage for trade or specu­ lation or its irretrievable dispersal is fundamentally incompatible with the pro­ tection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.

Although it does not totally exclude the application of law of salvage and law of finds, the CPUCH regime has the practical effect of preventing all the undesirable effects of the application of this kind of rule. Freedom of fishing for archaeological and historical objects is definitely banned. This important result seemed generally acceptable to all the States participat­ ing in the negotiations. B) The majority of the countries participating in the negotiations were ready to extend the jurisdiction of the coastal State to the underwater cul­ tural heritage found on the continental shelf or in the exclusive economic zone. However, a minority of States assumed that the extension of the jurisdiction of coastal States beyond the limit of the territorial sea would have altered the delicate balance embodied in the UNCLOS between the rights and obligations of the coastal State and those of other States. Such a difference in position proved to be a thorny question. Finally, a procedural mechanism was envisaged which involves the participation of all the States linked to the heritage. It is based on a three-step procedure (report­ ing, consultations, urgent measures). As regards the first step (reporting), the CPUCH bans secret activities or discoveries.23 States Parties must require their nationals or vessels flying their flag to report activities or discoveries to them. If the activity or discov­ ery is located in the exclusive economic zone or on the continental shelf of another State Party, the CPUCH sets forth two alternative solutions: (i) States Parties shall require the national or the master of the vessel to report such discovery or activity to them and to that other State Party; (ii) alternatively, a State Party shall require the national or master of the vessel to report such discovery or activity to it and shall ensure the rapid and effective transmission of such report to all other States Parties (Article 9 (1), (b)24.30

States Parties must also notify the Director-General of UNESCO who must promptly make the information available to all States Parties. 23  For obvious reasons, information is limited to the competent authorities of States Parties: ‘Information shared between States Parties, or between UNESCO and States Parties, regarding the discovery or location of underwater cultural heritage shall, to the extent compatible with their national legislation, be kept confidential and reserved to com­ petent authorities of States Parties as long as the disclosure of such information might endanger or otherwise put at risk the preservation of such underwater cultural heritage’ (Article 19, para 3). 24   On depositing its instrument of ratification, acceptance, approval or accession, a State Party shall declare the manner in which reports will be transmitted (Article 9(2)).

226  Tullio Scovazzi As regards the second step (consultations), the coastal State is bound to consult all States Parties which have declared their interest in being consulted on how to ensure the effective protection of the underwater cultural heritage in question (Article 10(3)(a), and Article 9(5))25. The CPUCH provides that this ‘declaration shall be based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned’.26 The coastal State27 is entitled to coordinate the consultations, unless it expressly declares that it does not wish to do so, in which case the States Parties which have declared an interest in being consulted shall appoint another coordinating State. The coordinating State must implement the measures of protection which have been agreed by the consulting States and may conduct any necessary preliminary research on the underwater cultural heritage. As regards the third step (urgent measures), Article 10(4) provides as follows: Without prejudice to the right of all States Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with interna­ tional law to prevent immediate danger to the underwater cultural heritage, including looting, the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. In taking such measures assistance may be requested from other States Parties.

The right of the coordinating State to adopt urgent measures is an important aspect of the CPUCH regime. It would have been illusory to subordinate this right to the conclusion of consultations that are normally expected to last for some time. It would also have been illusory to grant this right to the flag State, considering the risk of activities carried out by vessels flying the flag of non-parties or a flag of convenience. By defini­ tion, in case of urgency a State must be entitled to take immediate meas­ ures without losing time in procedural requirements. The CPUCH clearly sets forth that in coordinating consultations, taking measures, conducting preliminary research and issuing authorizations, the coordinating State acts ‘on behalf of the States Parties as a whole and not in its own interest’ (Article 10(6)). Any such action shall not in itself constitute a basis for the 25   Here and everywhere else, the CPUCH avoids the words ‘coastal State’, in order not to give the impression of an extension of coastal State’s jurisdiction. It chooses other expres­ sions, such as the ‘State Party in whose exclusive economic zone or on whose continental shelf’ the activity or the discovery is located. 26   No attempt was made during the negotiations for the CPUCH to define what is a ‘veri­ fiable link’. 27   See (n 24).

  Underwater Cultural Heritage  227 assertion of any preferential or jurisdictional rights not provided for in international law, including the UNCLOS. It is regrettable that, despite all the efforts to reach a reasonable compro­ mise, a consensus could not be achieved at the moment of the adoption of the CPUCH on the procedural mechanism envisaged for the heritage located on the continental shelf or in the exclusive economic zone. C) The CPUCH devotes one of its provisions (Article 6) to bilateral, regional or other multilateral agreements: 1.  States Parties are encouraged to enter into bilateral, regional or other multi­ lateral agreements or develop existing agreements, for the preservation of underwater cultural heritage. All such agreements shall be in full conformity with the provisions of this Convention and shall not dilute its universal charac­ ter. States may, in such agreements, adopt rules and regulations which would ensure better protection of underwater cultural heritage than those adopted in this Convention. 2. The Parties to such bilateral, regional or other multilateral agreements may invite States with a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned to join such agreements.

Article 6 opens the way to a multiple-level protection of underwater cul­ tural heritage. This corresponds to what has already happened in the field of the protection of the natural environment where treaties having a worldwide sphere of application are often reinforced by treaties con­ cluded at the regional and sub-regional level. The key to coordination between treaties applicable at different levels is the criterion of the better protection (or of the added value), in the sense that the regional and subregional treaties are concluded to ensure better protection than the protec­ tion granted by the treaties adopted at a more general level.28 D) As far as the Area is concerned, the CPUCH provides in general that States Parties are bound to ‘preserve underwater cultural heritage for the benefit of humanity’ (Article 2 (3)). Article 11 (Reporting and notification in the Area) and Article 12 (Protection of underwater cultural heritage in the Area) grant to the States having a ‘verifiable link’ with the heritage concerned the right to enter into consultations on how best to protect it: 1. States Parties have a responsibility to protect underwater cultural heritage in the Area in conformity with this Convention and Article 149 of the United Nations Convention on the Law of the Sea. Accordingly when a national, or a vessel flying the flag of a State Party, discovers or intends to engage in activities directed at underwater cultural heritage located in the Area, that State Party shall require its national, or the master of the vessel, to report such discovery or activity to it. 28   The possibility to conclude regional agreements should be carefully considered by the States bordering enclosed or semi-enclosed seas which are characterized by a particular kind of underwater cultural heritage, such as the Mediterranean, the Baltic, the Caribbean.

228  Tullio Scovazzi 2. States Parties shall notify the Director-General and the Secretary-General of the International Seabed Authority of such discoveries or activities reported to them. 3. The Director-General shall promptly make available to all States Parties any such information supplied by States Parties. 4. Any State Party may declare to the Director-General its interest in being con­ sulted on how to ensure the effective protection of that underwater cultural heritage. Such declaration shall be based on a verifiable link to the underwater cultural heritage concerned, particular regard being paid to the preferential rights of States of cultural, historical or archaeological origin (Article 11). 1. No authorization shall be granted for any activity directed at underwater cultural heritage located in the Area except in conformity with the provisions of this Article. 2. The Director-General shall invite all States Parties which have declared an interest under Article 11, paragraph 4, to consult on how best to protect the underwater cultural heritage, and to appoint a State Party to coordinate such consultations as the ‘Coordinating State’. The Director-General shall also invite the International Seabed Authority to participate in such consultations. 3. All States Parties may take all practicable measures in conformity with this Convention, if necessary prior to consultations, to prevent any immediate dan­ ger to the underwater cultural heritage, whether arising from human activity or any other cause including looting. 4. The Coordinating State shall:

(a) implement measures of protection which have been agreed by the con­ sulting States, which include the Coordinating State, unless the consult­ ing States, which include the Coordinating State, agree that another State Party shall implement those measures; and (b) issue all necessary authorizations for such agreed measures, in conform­ ity with this Convention, unless the consulting States, which include the Coordinating State, agree that another State Party shall issue those authorizations.

5. The Coordinating State may conduct any necessary preliminary research on the underwater cultural heritage and shall issue all necessary authorizations therefor, and shall promptly inform the Director-General of the results, who in turn shall make such information available to other States Parties. 6. In coordinating consultations, taking measures, conducting preliminary research, and/or issuing authorizations pursuant to this Article, the Coordinating State shall act for the benefit of humanity as a whole, on behalf of all States Parties. Particular regard shall be paid to the preferential rights of States of cultural, historical or archaeological origin in respect of the underwa­ ter cultural heritage concerned. 7. No State Party shall undertake or authorize activities directed at State vessels and aircraft in the Area without the consent of the flag State (Article 12).

  Underwater Cultural Heritage  229 Although the concept of ‘verifiable link’ is not defined in the CPUCH, Article 11(4) is clear enough in pointing out that, in the Area, the States enjoying preferential rights as States of cultural, historical or archaeologi­ cal origin are those that are entitled to declare their verifiable link to the heritage concerned. V.  THE COEXISTENCE OF TWO CONFLICTING REGIMES

As regards the relationship between the UNCLOS and CPUCH, the latter provides as follows: Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea (Article 3).

Does Article 3 CPUCH tell the truth? A negative answer is probably the most correct one from a substantive point of view. The drafters of the UNCLOS could not forecast the subsequent progress in underwater tech­ nologies and the diffusion of treasure hunting activities in many seas of the world. They probably did not feel that the protection of the under­ water cultural heritage was to be considered an urgent need. As already remarked,29 rather than laying down a substantive regime to deal with a new concern, such as the protection of the underwater cultural heritage, the UNCLOS seems more interested in paying tribute to abstractions, such as the keeping of an already established balance between the rights granted to the coastal State within its own exclusive economic zone and the rights granted to other States within the same zone. The consequence is that the underwater cultural heritage located within the exclusive eco­ nomic zone is left without protection from looting because, if other rights were granted to the coastal States besides those relating to the natural resources, the balance established by the UNCLOS would be altered.30   Supra, n 12.   In this regard, referring to the ‘substantive balance’ that is ‘the essence’ of the UNCLOS regime for the exclusive economic zone, a leading scholar wrote that ‘a better organized assault on that balance in an institutional setting occurred in the United Nations Educational, Scientific and Cultural Organization, from which emerged a controversial UNESCO conven­ tion that purports to expand the authority of coastal states in the EEZ [exclusive economic zone] and on the continental shelf to embrace marine archaeology. In itself, the matter may have little impact on the balance of the EEZ. The problem is that it reflects a view of the EEZ as an appropriate vessel for accumulating additional coastal state competences. And each such move increases the territorial perception of the EEZ, which in turn facilitates further territorialisation’ (Oxman BH, ‘The Territorial Temptation: A Siren Song at Sea’ (2006) American Journal of International Law 830 ff, 840). In this passage it is frankly admitted that the underwater cultural heritage could in principle deserve to be protected. Nevertheless, this heritage should remain defenceless against the risk of looting, because, if it were protected, 29 30

230  Tullio Scovazzi To depart from Article 303(3) UNCLOS and to develop a regime based on the principles set forth in Article 149 UNCLOS, as the CPUCH did, was the only way to grant a complete protection to the underwater cultural heritage. The drafters of the CPUCH did not care about any balance that could have been established by the UNCLOS. They simply realized that some aspects of the UNCLOS regime were an invitation to the looting of the heritage and tried to bring a remedy for such a disastrous situation. If the looting of the heritage is the result of the UNCLOS regime, it is the UNCLOS that is wrong on this specific matter, irrespective of all the bal­ ances that the UNCLOS might wish to preserve.31 In conclusion, it is a matter of fact that two different regimes for under­ water cultural heritage are today in place, as they result from two different treaties in force. The more recent and specific regime, that would ensure the general interest of the international community in the protection of the underwater cultural heritage, has not yet received the broad acceptance by States that it deserves.

an essential balance established by the UNCLOS would be altered. Such an assumption, which in fact ranges the protection of the underwater cultural heritage as the least and the less respectable among the interests taking place in marine waters, cannot be shared. 31  A more legalistic approach to the question of the relationship between the UNCLOS and the CPUCH is to recall that Article 303, para 4 UNCLOS does not prejudice the ‘other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature’. There is no reason why this provision should refer only to agreements concluded before the adoption or the entry into force of the UNCLOS and not also to subsequent agreements, such as the CPUCH. In other words, the UNCLOS allows the drafting of more specific treaty regimes which can ensure a better protection of the underwater cultural heritage. The UNCLOS itself seems to encourage the filling of its gaps and the elimination of the contradictions that it has generated.

11 Public Goods, Foreign Investments and the International Protection of Cultural Heritage VALENTINA VADI*

W

I. INTRODUCTION

HAT ROLE DOES cultural heritage play in international investment law and arbitration? Can economic analysis help address the interplay between the protection of cultural resources vis-à-vis economic activities including foreign direct investment? The promotion of foreign direct investment, the leitmotiv of international investment law, could in its own right be seen (but not necessarily is) as a public good. The capital exporter countries see their companies reinforcing their position in the global markets; the capital importing countries receive in turn capital, know-how, transfer of technology and other economic spill­ overs. The promotion of foreign direct investment can be deemed (but not necessarily is) a public good as market forces alone and in particular domestic ones may not sufficiently provide for such good, hence the need for regulatory intervention at both national and international levels. In parallel, cultural heritage can be conceptualized as a public good. While private markets financed by admission revenue, sponsorship and donations can foster the recovery and protection of cultural heritage, market forces alone may not supply it sufficiently. As a seminal study highlighted, ‘there will be cases where the market can work reasonably efficiently and cases where it may not . . .’.1 For instance, some types of * Valentina Vadi has received funding from the European Union Seventh Framework Programme (FP7/2007–2013) under grant agreement No 273063 for conducting this research. The chapter reflects the authors’ views only and the usual disclaimer applies. The author wishes to thank Professors Francesco Francioni, Federico Lenzerini and Ana Vrdoljak for valuable comments on an earlier draft. 1   Peacock A, ‘Preserving the Past: An International Economic Dilemma’ (1978) Journal of Cultural Economics 1 ff, 2.

232  Valentina Vadi cultural activities may gradually become obsolete vis-à-vis new forms; the fact that they are not marketable does not imply that they do not hold cultural value. In case of market failures, government intervention may be necessary.2 In turn, international regulation allows States to address the shortcomings of national regulation.3 Finally, international regulation is needed because ‘nations and regions may not fully, or sufficiently, appreciate the value of cultural and natural sites as a global public good . . .’.4 While the regulation of cultural heritage used to fall under the domaine réservé of States, nowadays cultural goods are governed by multilevel governance5; both national and international law protect these goods in the fulfilment of community interests.6 Is there a clash of cultures between international investment law and international cultural law? The promotion of foreign direct investment and the conservation of cultural heritage are often in conflict, especially in investment treaty arbitration.7 In most cases, foreign investors who see their investment flows restricted and/or allegedly overregulated by the host State will want to be compensated; their claims will be based on the implicit assumption that foreign direct investment is a global public good. For instance, investors may claim that conservation measures are discriminatory8 or that they go too far, thus amounting to an indirect expropriation9 or to a violation of other investment treaty provisions. Other conflicts which do not reach investment arbitration similarly involve the conflicting interest of foreign investors   Hale RD, ‘Economic Aspects of Historic Preservation’ (1978) Journal of Cultural Economics

2

47.

3   Efrat A, ‘A Theory of Internationally Regulated Goods’ (2008–09) Fordham International Law Journal 1466 ff, 1467. 4   Frey BS and Steiner L, ‘World Heritage List: Does it Make Sense?’ (2011) International Journal of Cultural Policy 555 ff, 567. 5   See eg Vadi V, ‘The Cultural Wealth of Nations in International Law’ (2012–13) Tulane Journal of International and Comparative Law 87 ff; Francioni F, ‘The Human Dimension of International Cultural Heritage Law: An Introduction’ (2011) European Journal of International Law 9 ff; Casini L, ‘Italian Hours: The Globalization of Cultural Property Law’ (2011) International Journal of Constitutional Law 369 ff; Zacharias D, ‘Cologne Cathedral versus Skyscrapers – World Cultural Heritage Protection as Archetype of a Multilevel System’ (2006) Max Planck Yearbook of United Nations Law 273 ff. 6   On the protection of community interests in international law, see eg Villalpando S, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) European Journal of International Law 387 ff. 7   For an analogous analysis albeit in the international trade law context with general reference to public goods, see Pauwelyn J, ‘WTO Dispute Settlement: Of Sovereign Interests, Private Rights and Public Goods’ in Maskus KE and Reichman JH, International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge, 2005) 815 ff, 816. 8   Parkerings-Compagniet AS v Republic of Lithuania, Award, ICSID Case No ARB/05/8, 11 September 2007, available at (last visited 9 March 2012). 9   Glamis Gold Ltd v United States of America, ICSID Award, 8 June 2009, available at (last visited on 9 March 2012).

  Cultural Heritage as a Public Good  233 and heritage conservation. For instance, when an Indian company planned to develop a soda ash processing plant on Lake Natron Tanzania, a Ramsar site, environmental experts cautioned that one of the world’s biggest breeding grounds for pink flamingos would be jeopardized. Equally (if not more) importantly, the Masaai people, who inhabited the area, was concerned about the possible water depletion caused by the project.10 On the other hand, cultural heritage is the originating ground of investment disputes in exceptional circumstances. In such cases, the cultural interest (the construction of a tower designed by a world-renowned architect, the recovery of an ancient shipwreck, the conservation of heritage) can (and has) coincide(d) with the investor’s interest. For instance, a Luxembourg incorporated company recently threatened to file an investor–State arbitration claim against Poland due to delays in national courts’ proceedings.11 The group is building a residential complex in central Warsaw, after having obtained the relevant construction permits.12 The project, including the iconic Zlota Tower, designed by a renowned architect, was halted until local courts assessed the merit of the local neighbours’ opposition.13 As the Administrative Court in Warsaw recently reaffirmed the validity of the building permit,14 it is likely that no claim will be filed against Poland and the construction of the tower will move forward. Analogously, a Canadian investor filed an investment treaty claim against Barbados for failure to enforce its own environmental law implementing international obligations.15 As the investor acquired wetlands and subsequently developed them into an ecotourism facility, he claimed that Barbados had failed to prevent the discharge of raw sewage into the wetlands and to investigate or prosecute polluters, thus reducing the profitability of his investment.16 As Viñuales points out, ‘Irrespective of whether this claim prospers, its interest lies in the way it has been formulated’, which illustrates a novel form of interplay between inter­ national investment law and the protection of heritage.17 More importantly, such cases show the interdependence of public goods and may provide   Rice X, ‘Factory May Destroy Natural Wonder’, The Guardian, 12 July 2007.   Peterson LE, ‘Investor Warns Poland of Arbitration Unless Permit is Green-Lighted for Resumed Construction of Libeskind-Designed Tower in Warsaw’, Investment Arbitration Reporter, 28 August 2010. 12   Ibid. 13   Ibid. 14   ‘Zlota Tower Moves Forward in Warsaw’, Studio Daniel Libeskind, 12 January 2012, available at (last visited on 13 April 2012). 15   Peter A Allard v Government of Barbados, Notice of Dispute, available at . 16   Ibid, para 16. 17   Viñuales J, ‘Foreign Investment and the Environment in International Law: An Ambiguous Relationship’ (2009) British Yearbook of International Law 244 ff. 10 11

234  Valentina Vadi argument in favour of the principle of mutual supportiveness between different treaty regimes.18 Most often, however, cultural heritage tends to enter into play as a possible defence that a State invokes in the attempt to justify its conduct. For instance, foreign investors have challenged State measures to introduce language quotas in radio broadcasting to favour national music. While this constitutes a restriction and may amount to a performance requirement, prohibited under international investment treaties, international cultural law – in the form of specific treaties such as the UNESCO Convention on Cultural Diversity19 – allows States to protect their cultural diversity, promoting the use of the national language vis-à-vis foreign languages in radio broadcasting.20 In order to illustrate the ‘clash of culture’ between economic considerations and cultural concerns in international investment law and arbitration, this study briefly explores the conceptualization of foreign direct investment and cultural heritage respectively as global public goods. Then, it explores the interplay between public goods, foreign investments and the international protection of cultural heritage, contributing to the debate on the unity of international law and its ability to provide public goods. While international cultural law is setting modes of good cultural governance, investor-State tribunals have been willing to integrate cultural concerns within international investment law and arbitration, albeit with varying results. This study concludes that while economic analysis is useful in that it provides useful conceptual tools in the regulation of cultural goods, it is not the ultimate approach to the study of cultural phenomena, but needs to be complemented by other approaches including but not limited to human rights approaches.21 II.  FOREIGN DIRECT INVESTMENT AS A GLOBAL PUBLIC GOOD

The leitmotiv of investment treaties is the promotion of foreign direct investment (hereinafter FDI). FDI can be defined as ‘the transfer of tangible or intangible assets from one country into another for the purpose of their use in that country to generate wealth under the total or partial control of the owner of the assets’.22 The majority of economists and policy18   On the principle of mutual supportiveness, see eg Pavoni R, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the “WTO-and-CompetingRegimes” Debate?’ (2010) European Journal of International Law 649 ff. 19   Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, in force 18 March 2007, in UNESCO, Records of the General Conference, 33rd session, Paris, 3–21 October 2005, (2 vols, 2005), vol I, p 83. 20   For an analysis of the relevant cases, see eg Vadi V, ‘Cultural Diversity Disputes and the Judicial Function in International Investment Law’ (2011) Syracuse Journal of International Law and Commerce 89 ff. 21   See eg Ana Vrdoljak’s contribution in this volume in chapter seven. 22   Sornarajah M, The International Law on Foreign Investment, 3rd edn (Cambridge/New York, 2010) 8.

  Cultural Heritage as a Public Good  235 makers in both developing and developed countries see FDI as an engine for promoting economic growth and development.23 As contained in investment treaties, investment is an all-encompassing concept, including almost any kind of business activity. All assets of an enterprise, such as movable and immovable property, contractual rights, intellectual property rights, concessions, licenses, and similar rights are included.24 The promotion of FDI could in its own right be seen as (but not necessarily is) a public good. The promotion of FDI is deemed to make anyone better off: the capital exporter countries see their companies reinforcing their position in the global markets; the capital importing countries receive in turn capital, know-how, technology transfer and other economic spillovers. As market forces alone and in particular domestic ones may not sufficiently provide for optimal governance of FDI, hence the need for regulatory intervention at both national and international levels. In turn, international investment law can be conceptualized as an intermediate public good; as such legal framework permits the channelling of private interests into public virtue. Traditionally, international investment law has constituted an important part of public international law, mainly referring to the concepts of State responsibility and diplomatic protection and being articulated in amity, commerce and navigation treaties.25 As there is still no single comprehensive global treaty, investor rights are mainly defined by almost 3,000 international investment treaties.26 Investment treaties are creatures of public international law; under such treaties, States Parties agree to give certain protections – including compensation in case of expropriation, fair and equitable treatment, full protection and security among others – to investors coming from the other Contracting Party/ies.27 At the procedural level, most investment treaties allow foreign investors to file arbitral claims directly against the host State. This is a major novelty in international law; as investors are not required to exhaust local remedies and no longer depend on diplomatic protection to defend their interests against the host State. The claims are heard by ad hoc arbitral tribunals whose arbitrators are selected by the disputing Parties and/ or appointing institution. Depending on the arbitral rules chosen, the 23   See eg Bhagwati J, ‘Why Multinationals Help Reduce Poverty’ (2007) The World Economy 211 ff. 24   Given the broad scope of the concept, some investment provisions include a general clause and an illustrative list of covered investments, as well as a negative list of areas specifically excluded from the scope of the agreements. See eg North American Free Trade Agreement (NAFTA), Article 1101(2). 25   For an historical overview, see Sornarajah M (n 22) 19 ff; Newcombe A and Paradell L, Law and Practice of Investment Treaties (Alphen aan den Rijn, 2009) 3 ff. 26   United Nations Conference on Trade and Development (UNCTAD), ‘World Investment Report 2011’ (New York/Geneva, 2011) 100. 27  See Salacuse JW, ‘The Emerging Global Regime for Investment’ (2010) Harvard International Law Journal 427 ff.

236  Valentina Vadi proceedings occur in camera and the very existence of the claim and the final award may never become public. Due to the recent boom of investment treaty making and arbitration, investment governance, that is the ensemble of investment treaties and arbitrations and the effects they produce altogether, has come to the forefront of legal debate.28 Once deemed an ‘exotic and highly specialized’ domain of international law,29 international investment law is now moving mainstream.30 At the same time, investment treaty law and arbitration is experiencing growth pains, as it has raised a storm of criticism mainly due to the alleged lack of democratic insight, and its impact on the host State’s sovereignty.31 Investors have increasingly challenged regulatory measures in key sectors relating to a number of public goods, including but not limited to water services, cultural and environmental goods and public health. The recent boom of investment treaty making and arbitrations has attracted increasing attention from the media and the public on what used to be a specialized area of international law. In turn, this has led to an ever growing academic focus on the field, albeit with uneven methodological approaches and results.32 III.  CULTURAL HERITAGE AS A GLOBAL PUBLIC GOOD

Cultural heritage can be scrutinized adopting law and economics approaches.33 Such approaches refer to the application of the methods of economics to legal problems and/or the use of economic concepts in the context of legal analysis.34 Economic analysis of law has been extremely 28  See eg Franck SD, ‘Developments and Outcomes of Investment Treaty Arbitration’ (2009) Harvard International Law Journal 435 ff. 29   International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group (Martti Koskenniemi), UN Doc A/CN.4/L.682, 13 April 2006, para 8. 30   Schill SW, ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’ (2011) European Journal of International Law 875 ff, 875. 31  See Waibel M, Kaushal A, Chung KHL and Balchin C, ‘The Backlash against Investment Arbitration: Perceptions and Reality’ in Weibel M et al (eds), The Backlash against Investment Arbitration: Perceptions and Reality (Alphen aan den Rijn, 2010) xxxvii; Brower CN and Schill SW, ‘Is Arbitration a Threat or a Boon to the Legitimacy of International Investment Law?’ (2008–09) Chicago Journal of International Law 471 ff; Sornarajah M, ‘A Coming Crisis: Expansionary Trends in Investment Treaty Arbitration’ in Sauvant K (ed), Appeals Mechanism in International Investment Disputes (New York, 2008) 39 ff. 32   Roberts A, ‘Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System’ (2013) American Journal of International Law 45 ff (offering a theoretical framework for understanding how the investment treaty system is being constructed). 33   For a pioneering contribution, see Francioni F, ‘Public and Private in the International Protection of Global Cultural Goods’, paper presented at the conference ‘Global Public Goods and the Plurality of Legal Orders’, ESIL-ASIL-EJIL-HiiL Symposium held at the European University Institute on 24–25 October 2011. 34   Posner RA, Economic Analysis of Law, 6th edn (New York, 2003).

  Cultural Heritage as a Public Good  237 influential especially in the past quarter century of the twentieth century, and has been applied to many branches of law including international law.35 Law and economics approaches have also been applied to the regulation of cultural heritage.36 Fundamental criticisms have been moved to law and economics current. For instance, economic analysis does not capture the importance of human rights and other non- economic concerns which characterize legal systems,37 and often assumes the existence of unique optimal result.38 Market rhetoric, which ‘conceive[s] everything people value as if it were a commodity subject to market exchange’,39 cannot capture the cultural and social value of cultural heritage which remains incommensurable. Therefore, law and economics approaches are not exhaustive, and cannot be meant to be as the ultimate method of legal analysis. Nonetheless, they can provide a useful complementary paradigm as economic concepts are currently used in discourse relating to heritage conservation and can constitute a valid component of broader analysis.40 Adopting a law and economics approach, one may question whether cultural heritage can be categorized as a global public good, given the collective benefits it provides and its positive intergenerational and intragenerational spillovers.41 As a public good, cultural heritage cannot easily be provided by the ‘invisible hand’ of the market. Market forces alone may not supply it efficiently.42 As already pointed out, there are cases where the market does not work efficiently. In case of market failures, ‘government intervention is not only necessary, but desirable to improve 35   See generally Ratner SR and Slaughter A-M, ‘Appraising the Methods of International Law: A Prospectus for Readers’ (1999) American Journal of International Law 291–302; Dunoff JL and Trachtman JP, ‘Economic Analysis of International Law’ (1999) Yale Journal of International Law 1 ff. 36   See eg Posner EA, ‘The International Protection of Cultural Property: Some Sceptical Observations’ (2007) Chicago Journal of International Law 213 ff (deeming cultural property as not sufficiently distinct from ordinary property to justify its distinct regulation; and that market efficiency should govern the regulation of cultural goods). 37  See eg Ellickson RC, ‘Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics’ (1989) Chicago Kent Law Review 23 ff; Epstein R, ‘Law and Economics: Its Glorious Past and Cloudy Future’ (1997) University of Chicago Law Review 1167 ff; Stigler GJ, ‘Law or Economics?’ (1992) Journal of Law and Economics 455 ff. 38   Samuels W, The Legal-Economic Nexus (Abingdon, 2007) 23–24. 39   Radin MJ, ‘Compensation and Commensurability’ (1993–94) Duke Law Journal 56, 57. 40   Due to space limits, this chapter will focus on law and economics approaches. More normative analysis has been undertaken elsewhere. See eg Vadi V, ‘Fragmentation or Cohesion? Investment versus Cultural Protection Rules’ (2009) Journal of World Investment and Trade 573 ff. 41  See Sandler T, ‘Intergenerational Public Goods’ in Kaul I, Grunberg I and Stern MA (eds), Global Public Goods – International Cooperation in the 21st Century (New York/Oxford, 1999) 20 ff (deeming the preservation of culture and the development of cultural norms as a type of intergenerational public good). 42  United Nations Industrial Development Organization, ‘Public Goods for Economic Development’ (Vienna, UNIDO, 2008) 6.

238  Valentina Vadi the market mechanism’43 and regulate and/or finance cultural heritage for the common weal.44 In turn, international regulation addresses the shortcomings of national regulation45 as ‘nations and regions may not fully, or sufficiently, appreciate the value of cultural and natural sites as a global public good . . .’.46 Global public goods present two main features: 1) they present an element of publicness; and 2) they have a global nature.47 With regard to the first feature, although the concept of public goods traces its roots back to antiquity, originating in the writings of Plato, Aristotle, and Cicero (res publica),48 the current meaning of ‘public goods’ as goods that are nonrivalrous and non-excludable derives from the economic literature and was elaborated by Paul Samuelson in 1954.49 Non-Rivalry is the ability of multiple consumers to consume the same good; and Non-Excludability means that no one can be excluded from using the good. Common examples of public goods include: lighthouses,50 clean air, environmental goods, and others. The second feature of global public goods – their global character – is given by the fact that their benefits are almost universal in terms of countries, peoples and generations.51 A number of cultural heritage categories present the features of (global) common goods as they provide collective benefits and inter-generational and intra-generational spillovers. Furthermore, they are not destroyed while people enjoy them. For instance, a poem can be read by many people without reducing the enjoyment of that good by others; Cathedrals, mosques and equivalent buildings of cultural significance constitute public goods to the extent that, first, no-one can be excluded from the complex combination of benefits that they give, including identity formation and architectural beauty, and, second, the appreciation of them by some does not reduce the possibility of others receiving the same benefits.52

However, cultural heritage may also belong to private owners, and some aspects of its conservation can be privatized – for example access to a site   Hale RD (n 2) 47.   UNIDO, ‘Public Goods for Economic Development’ (n 42) 1.   Efrat A (n 3) 1466 ff, 1467. 46   Frey BS and Steiner L, (n 4) 567. 47   Kaul I, Grunberg I and Stern MA, ‘Defining Global Public Goods’ in Kaul I, Grunberg I and Stern MA (eds) (n 41) 2 ff. 48   Velasquez M, Andre C, Shanks T and Meyer M, ‘The Common Good’ (1992) Issues in Ethics 1 ff. 49   Samuelson P, ‘The Pure Theory of Public Expenditure’ (1954) The Review of Economics and Statistics 387 ff. 50   Coase RH, ‘The Lighthouse in Economics’ (1974) Journal of Law and Economics 357 ff. 51   Kaul I, Grunberg I and Stern MA (n 47) 3. 52   Deneulin S and Townsend N, ‘Public Goods, Global Public Goods and the Common Good’ (2007) International Journal of Social Economics 19 ff. 43 44 45

  Cultural Heritage as a Public Good  239 can be restricted and money charged. Thus, only some components of cultural heritage can be categorized as public goods in a strict economic sense. Yet, if one adopts a broader notion of public goods as legal goods, ie as goods which are shaped and constituted by law, which benefit and are available to all States or humankind as a whole,53 several components of cultural heritage can be considered public goods, because everybody can enjoy them, without reducing the enjoyment of those goods by others. Their benefits extend to both developing and industrialized countries, poor and rich, and people of different cultures irrespective of age, gender, religion, political or philosophical belief. In parallel, international cultural law can be conceptualized as (intermediate) public goods instrumental to achieving the common wealth.54 Cultural resources are conceptualized as international common goods or cultural heritage of mankind in a number of international law instruments, such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which recognizes that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world’.55 Similarly, the 1972 World Heritage Convention acknowledges that ‘deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world’.56 Even cultural rights present a collective dimension: while human rights treaties define cultural rights as individual rights, their enjoyment is necessarily linked to other members of a given cultural community.57 According to mainstream economic literature, two main problems affect the provision of public goods: 1) free riding; and 2) the prisoner’s dilemma.58 Free riding refers to the powerful incentive to avoid contributing personal resources to common endeavours. Let us consider the following example. Ancient shipwrecks constitute an important source of knowledge 53  The recent literature on global public goods assumes ‘that they are instrumentally essential to human flourishing’. See ibid. 54   ‘Intermediate public goods, such as international regimes, contribute towards the provision of final global public goods.’ Kaul I, Grunberg I and Stern MA (n 47) 13. 55   1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, in force 7 August 1956, 249 UNTS 240, Preamble. 56  Convention Concerning the Protection of the World Cultural and Natural Heritage, ILM 1972, 1358, Preamble. 57   Donders Y, ‘Culture and Human Rights’ in Forsythe P (ed), Encyclopaedia of Human Rights (Oxford/New York, 2009) 445. See also Hansen S, ‘The Right to Take Part in Cultural Life: Toward Defining Minimum Core Obligations Related to Article 15(1)(A) of the International Covenant on Economic, Social and Cultural Rights’ in Chapman A and Russell S (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerp/Oxford/ New York, 2002) 288 ‘[cultural rights] can exist only when they are practised with other members of a group’. 58   Kaul I, Grunberg I and Stern MA (n 47) 6.

240  Valentina Vadi and the recent UNESCO Convention on the Protection of the Underwater Cultural Heritage requires their conservation and protection.59 While a number of States have ratified the Convention, other States are reluctant to do so, fearing that by ratifying the Convention they could jeopardize the profitable ‘salvage’ industry.60 Underwater cultural heritage is a finite resource; and once the artifacts are sold they are lost forever. If a State behaves as a pure homo economicus,61 ie rational and narrowly self-interested human, it will seek to ‘free ride’ by allowing others to commit themselves to a binding regime, and then allow its nationals to exploit the scarce and finite underwater cultural heritage. If the free-rider problem cannot be solved, valuable goods will remain unprotected and overexploited.62 Hardin reformulated this problem, calling it the ‘tragedy of the commons’: if shepherds share a common pasture, they may be tempted to increase their herd without limit.63 Therefore, the pursuit of individual self-interest can jeopardize natural resources that should sustain current and future generations. The prisoner’s dilemma refers to a situation in which cooperation would lead to a better outcome, but individual players driven by self-interest prefer a less desirable outcome.64 In the imagined scenario two prisoners are held in separate cells and so are unable to agree on a common line of defence.65 Meanwhile, the prosecutors give the prisoners the following three options: 1) if both prisoners deny the charge they will each get one year in prison; 2) if one confesses while the other denies, the one who collaborates will be rewarded with freedom, while the other will spend five years in prison; 3) if both confess, each will spend three years in prison.66 Both prisoners select the option of confessing in the attempt to minimize the higher risk.67 Lacking the ability to communicate, they also lack the pos59   Convention on the Protection of the Underwater Cultural Heritage Convention on the Protection of the Underwater Cultural Heritage, 2 November 2001, in force 2 January 2009, ILM 2002, 37. 60   Salvage is a maritime law term which refers to the act of saving people and object in peril found at sea. The concept has been applied mutatis mutandis to the recovery of ancient shipwrecks and the related industry that is the number of companies that after locating shipwrecks claim property or a salvage award recovering their expenses through the sale of the recovered artifacts. See Vadi V, ‘Investing In Culture: Underwater Cultural Heritage and International Investment Law’ (2009) Vanderbilt Journal of Transnational Law 853 ff. 61   Homo economicus, or economic human, is a concept elaborated by political economists in the nineteenth century; such concept sees humans as rational and narrowly self-interested actors ‘who desir[e] to possess wealth, and who [are] capable of judging the comparative efficacy of means for obtaining that end’, Stuart Mill J, ‘On the Definition of Political Economy, and on the Method of Investigation Proper to It’ in Essays on Some Unsettled Questions of Political Economy, 2nd edn (London, 1874), essay 5, paras 38 and 48. See generally Persky J, ‘The Ethology of Homo Economicus’ (1995) Journal of Economic Perspectives 221 ff. 62  See Cowen T, ‘Public Goods’ in Anderson DE (ed), The Concise Encyclopedia of Economics, 2ndedn (Monterey CA, 2005). 63   Hardin G, ‘The Tragedy of the Commons’ (1968) Science 1243 ff, 1244. 64   Kaul I, Grunberg I and Stern MA (n 47) 7–8. 65   Ibid, 7. 66   Ibid. 67   Ibid.

  Cultural Heritage as a Public Good  241 sibility to cooperate and thus to optimize their chances.68 The prisoner’s dilemma clarifies that Parties to a regime may have an incentive to defect from the system, unless mechanisms are established to facilitate communication and cooperation.69 For instance, States may have economic incentive to defect from the World Heritage Convention, which demands the conservation of world heritage sites, when a particular heritage site presents mineral resources and thus is suitable for mineral exploitation. However, the risk that a particular site be delisted from the World Heritage List and inserted in the List of World Heritage in Danger constitutes a mechanism of blame and shame, and a number of States have taken action to prevent delisting because of consequential loss of reputation, and the desire to be perceived as a reliable partner in future negotiations.70 The management of shared resources has attracted increasing attention, and even economists have acknowledged that common goods have an autonomous raison d’être as an alternative to private and public property.71 Authors have highlighted that common goods are often endangered by the same States that should keep them in custody but subordinate them to the economic interests of private actors.72 Logging or mining concessions can irremediably damage the cultural heritage; once cultural heritage is damaged or destroyed it cannot be replaced. Once cultural resources are lost, they are lost forever. While conventional solutions typically involve either centralized governmental regulation or privatization of the resource,73 Nobel Prize winner Elinor Ostrom has suggested the design of durable cooperative institutions to be governed by the resource users themselves.74 More holistic models that more fully account for the individual, the community, and the commons have been proposed.75 For instance, economist Herman Daly and theologian John Cobb propose a paradigm shift from economics conceived as wealth maximization to the kind of economics that Aristotle called ‘oikonomia’ (or household management for the benefit of its residents and the community). Such an approach entails a fundamental move from the radical individualism of homo economicus as an autonomous   Ibid.   Ibid, 8. 70   According to Ohlin, States make rational decisions regarding strategy in light of strategies selected by other States, thus generating Nash equilibria and, ultimately, a stable social contract. See Ohlin JD, ‘Nash Equilibrium and International Law’ (2010–11) Cornell Law Review 869 ff, 876 (‘A Nash equilibrium functions as a kind of focal point, where participants in the game gravitate toward a particular legal norm and choose compliance as their strategy if and only if the other players in the game are also choosing compliance as their strategy’). 71   Mattei U, Beni Comuni – Un Manifesto (Roma/Bari, 2011) vii. 72   Ibid, viii. 73   Ostrom E, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’ (2010) American Economic Review 641 ff, 641 (developing new theory to explain phenomena that do not fit in a dichotomous world of ‘the market’ and ‘the State’). 74   See generally Ostrom E, Governing the Commons (Cambridge/New York, 1990). 75   See generally Daly H and Cobb J, For the Common Good – Redirecting the Economy Toward Community, the Environment, and a Sustainable Future (Boston, 1989). 68 69

242  Valentina Vadi individual driven solely by self-interest (and of society as a sum of such individuals) to the notion of social person and ‘communities of communities’. Conceptualizing cultural heritage as a global common good is useful in that it emphasizes the positive spillovers and common benefits that derive from cultural assets. The paradigm also provides useful theoretical tools to examine State and individuals’ conduct in the cultural domain. The risk of State failure in providing global common goods is systemic.76 Should the the international community intervene to protect cultural goods? How much should be left to the private sector allocating scarce resources through the market-based mechanisms? Clearly, answers to these questions cannot be provided by economic analysis only, as ‘culture seems to both attract and resist economic analysis’.77 The value and welfare impacts associated with cultural heritage cannot be easily quantified within the framework of standard quantitative economic analysis.78 The regulation of cultural heritage cannot be guided by pure economic considerations as it holds a profound political, social and legal dimension in addition and beyond its economic value.79 More normative approaches are needed because economic analysis seems too narrow a perspective80; future generations’ interests ought to be considered as well. On the other hand, conceptualizing cultural heritage as a global common good presents certain drawbacks. In a preliminary fashion, ‘what con­ stitutes a public good is an ideological question; public good might be bene­ ficial to one social group but detrimental to another’.81 Furthermore, international and State cultural policies may lead to the primacy of professional elites vis-à-vis their inhabitants. As Hewitt points out, ‘These processes are top down, solidifying the privileges and power of the cultural class and reinforcing the powerlessness of ordinary citizens through opaque knowledge and systems.’82 Similar critiques have been moved to the functioning of the World Heritage Convention, with regard to the lack of consultation of local people in the process of administering properties inscribed in the World Heritage List.83 For instance, the African Commission on Human and Peoples’ Rights recently noted that:

  Kaul I, Grunberg I and Stern MA (n 47) 15.   Doyle G, ‘Why Culture Attracts and Resists Economic Analysis’ (2010) Journal of Cultural Economy, 245 ff. 78   Ibid, 247. 79   Ibid, xii. 80   Ibid. 81   Hewitt A, ‘Privatizing the Public: Three Rhetorics of Art’s Public Good in “Third Way” Cultural Policy’ (2011) Art & the Public Sphere 19 ff, 20. 82   Ibid, 28. 83   Affolder N, ‘Mining and the World Heritage Convention: Democratic Legitimacy and Treaty Compliance’ (2007) Pace Environmental Law Review 35 ff, 58. 76 77

  Cultural Heritage as a Public Good  243 [T]here are numerous World Heritage sites in Africa that have been inscribed without the free, prior and informed consent of the indigenous peoples in whose territories they are located and whose management frameworks are not consistent with the principles of the UN Declaration on the Rights of Indigenous Peoples.84

The African Commission urged the World Heritage Committee and UNESCO to review and revise current procedures and Operational Guidelines, in consultation and cooperation with [. . .] indigenous peoples, in order to ensure that the implementation of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous Peoples and that indigenous peoples’ rights, and human rights generally, are respected, protected and fulfilled in World Heritage areas.85

Finally, conceiving cultural heritage as a common good may conceal State interventionism and even lead to cultural dictatorship, if it is not coupled with human rights guarantees. In conclusion, the conceptualization of cultural heritage as a global common goods may be useful in that it highlights certain specificities of cultural resources; however, the use of law and economics approaches is not meant to be exclusive but as a component of a necessarily broader analysis. IV.  A CLASH OF CULTURES?

This section investigates the relationship between the protection of cultural heritage and the promotion of FDI, focusing on how international investment law and arbitration have dealt with heritage issues. Under most investment treaties, States have agreed to give arbitrators a comprehensive jurisdiction over what are essentially regulatory disputes. Modern investment treaties do not require the intervention of the home State in the furtherance of a dispute. In practice, this means that foreign investors have access to arbitration against the host State if there is an international investment treaty between the home State and the host State. Since many investment disputes arise from the exercise of public authority by the State, arbitral tribunals are given the power to review and control such an exercise of public authority, settling what are, in essence, regulatory disputes. In particular, international investment disputes with a cultural heritage component are generally characterized by the need to balance the legitimate interests of a State to adopt cultural policies on the one hand, and the legitimate interests of foreign investors to protect their property rights on the other. 84   ACHPR/Res 197 (L) 2011: Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage Site, 5 November 2011, available at (last visited on 13 March 2012). 85   Ibid.

244  Valentina Vadi Some characteristics of investment treaty arbitration hinder the consideration of public goods in the arbitral process, while other features can facilitate it. First, the very fact that the balancing process occurs in the context of investor-State arbitration could lead to the procedure being deemed biased in favour of the investors. Mainly (but not exclusively) private actors activate investment arbitrations.86 Second, arbitral proceedings are held in camera and the documents submitted by the Parties remain confidential. Third, several investment lawyers have an international commercial law background rather than training in public law or international law.87 Fourth, arbitral tribunals are tribunals of limited jurisdiction and cannot adjudicate on eventual violations of international cultural law. Fifth, international investment law and arbitration has developed its own culture and lexicon which is based on but increasingly specifies (and may in time diverge from) international law.88 In turn, international cultural law has more recent origin, and only in the past century has it increasingly been ‘codified’ in UNESCO instruments. Finally, cultural considerations are generally not mentioned at all in bilateral investment treaties, or only in vaguely drafted clauses. On the other hand, some specific features of investment treaty arbitration facilitate the consideration of public goods in the arbitral process. First, international investment treaties are creatures of international law and thus need to be interpreted according to customary canons of treaty interpretation which may provide some ground for systematic interpretation. Second, a growing number of international law experts are participating in investment treaty arbitration as counsels and/or arbitrators.89 Third, the submission of amicus curiae briefs can open the door to noneconomic considerations.90 Fourth, some investment treaties require that FDI be in accordance with domestic law.91 Fifth, if one deems that ordre public comprises elements of ordre culturel, then the former is always applicable. 86  Some arbitrations have been activated by States exercising diplomatic protection in favour of their nationals. See eg Republique d’Italie v Republique de Cuba, Arbitrage ad hoc, Sentence Finale, 2008, available at (last visited on 4 May 2012). 87   Fontoura Costa J-A., ‘Comparing WTO Panelists and ICSID Arbitrators: The Creation of International Legal Fields’, Oñati Socio-Legal Series Working Paper, 2011, vol 1, no 4. 88   Bjorklund AK, ‘The Emerging Civilization of Investment Arbitration’ (2008–09) Penn State Law Review 1269 ff. 89   See eg Schill S (n 30) 875 ff. 90   See eg Fach Gómez K, ‘Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favourably for the Public Interest’ (2011–12) Fordham International Law Journal 510 ff, 563 (pinpointing that ‘several rules on investment arbitration have increasingly recognized the possibility that the general interest is protected through amicus submissions’). 91  See Moloo R and Khachaturian A, ‘The Compliance with the Law Requirement in International Investment Law’ (2010–11) Fordham International Law Journal 1473 ff.

  Cultural Heritage as a Public Good  245 Given the above mentioned elements, one might expect the embryonic field of international cultural law to be overwhelmed by the long established and sophisticated web of investment treaties – not least given that arbitral tribunals have limited jurisdiction and so cannot adjudicate on the violation of other norms of international law outside the realm of international investment law. However, one can identify underlying processes that lead to the consideration of cultural concerns within investorState arbitration. Arbitrators have increasingly taken cultural concerns into consideration in deciding cases brought before them, refusing to limit themselves to purely economic standards of valuation. For instance, in the Glamis Gold case, the arbitral tribunal accorded deference to the federal and State legislative measures.92 In this case, the Quechan, a Native American tribe, opposed the mining project of a Canadian company because it would destroy the Trail of Dreams, a sacred path still used while performing ceremonial practices. California, the host State, had adopted legislative measures to prevent irreparable harm to the indigenous landscape, requiring backfilling after mining. Against this background, the foreign company filed an investor–State arbitration contending that the regulatory measures adopted by California amounted to an indirect expropriation of its property and a violation of the fair and equitable treatment. The Arbitral Tribunal dismissed such claims recognizing that: ‘It is not the role of this Tribunal or any international tribunal, to supplant its own judgment of underlying factual material and support for that of qualified domestic agency’s vicinity’93 and that ‘governments must compromise between the interests of competing parties’.94 The Tribunal held that ‘the sole inquiry for the tribunal [. . .] is whether or not there was a manifest lack of reasons for the legislation’. 95 In Parkerings v Lithuania, the Arbitral Tribunal did not consider the cultural heritage elements of the case as a justification of a breach of investment rules, but considered them as an integral part of the adjudicative process. The case arose from the development of a parking system of the Municipality of Vilnius (Lithuania). Parkerings, a Norwegian enterprise, filed a claim before an International Centre for Settlement of Investment Disputes (ICSID) Arbitral Tribunal claiming that Lithuania breached the most favoured nation (MFN) clause as a result of the allegedly preferential treatment granted to the Dutch competitor. Parkerings had stipulated an agreement with the Municipality for the construction of parking facilities. 92   Glamis Gold Ltd v United States of America, Award (NAFTA Arbitral Tribunal, 8 June 2009), para 10, available at (last visited on 14 May 2012). 93   Ibid, para 779. 94   Ibid, para 803. 95   Ibid, para 805.

246  Valentina Vadi Because of substantial technical difficulties, legislative changes and growing public opposition due to the cultural impact of the investor’s project on the city’s Old Town, the Municipality terminated the agreement and subsequently signed another contract with a Dutch company for the completion of the project. The new project, however, would not excavate under the Vilnius historic centre – the Old Town – which has been on the UNESCO World Heritage List since 1994. The Tribunal dismissed Parkerings’ claim, taking the view that the Norwegian enterprise and the Dutch competitor were not in like circumstances. The consideration of the cultural features determined the finding that the two projects were different and thus no discrimination was involved.96 A similar approach was taken in the Pyramids case, where lucrum cessans was not awarded because of the unlawfulness of the proposed economic activity under cultural heritage law.97 The Arbitral Tribunal stated: ‘sales in the areas registered with the World Heritage Committee under the UNESCO Convention would have been illegal under [. . .] international law [. . .] the allowance of lucrum cessans may only involve those profits which are legitimate’.98 From an investment law perspective, the integration of cultural concerns within international investment arbitration is a welcome move because it contributes to the harmonious development of international law. Nonetheless, from a cultural heritage law perspective, concerns remain that, unlike bodies with, for example, responsibilities for human rights, arbitral tribunals are ill-suited to the task of protecting cultural heritage. One may wonder whether these developments are enough to protect cultural heritage when foreign investments are at stake. At the end of the day, these cases represent an ex post remedy, that is, a remedy that is available only after an investor files an investor State claim. What if an investor did not file a claim, but cultural heritage concerns arose nonetheless? What about the other relevant stakeholders, such as, for instance, the local communities? The institutional structure, the processes and the outcomes that arbitral tribunals sanction can be far from what would be required of a body to which significant human rights authority could be entrusted. Furthermore, there is a risk of ‘epistemological misappropriation’ that is, declining cultural heritage and related cultural rights in a way that is discordant from the jurisprudential developments and interpretations of human rights courts and tribunals. For instance, excavation 96   Parkerings-Compagniet AS v Republic of Lithuania, ICSID Case No ARB/05/08, Award of 11 September 2007, available at (last visited on 14 May 2012). 97   Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt, ICSID Case No ARB/84/3, Award on the Merits, 20 May 1992, reprinted in (1993) ICSID Review-Foreign Investment Law Journal 328. 98   Ibid, para 190.

  Cultural Heritage as a Public Good  247 will take place in the Trail of Dreams, the sacred route of the Quechan tribe. As the complainant sharply pointed out, backfilling does not avoid harm to the cultural artefacts. What relevance, if any, do the narratives of indigenous peoples and minorities have in the context of investor–State arbitration? Much more study is needed to explore ways in which the two bodies of law can be best reconciled and rendered complementary to the greatest extent possible. V. CONCLUSIONS

Conceptualizing cultural heritage as a global common good is useful in emphasizing the positive spillovers and common benefits that derive from cultural assets. Such a paradigm also constitutes a useful theoretical tool to examine State and individuals’ conduct in the cultural domain. The risk of State failure in providing global common goods is systemic. If a State privatizes lands characterized by cultural traditions and worldviews, it expropriates the community of its common good.99 Once alienated or destroyed, cultural heritage no longer exist and cannot be reproduced, determining a loss for both present and future generations. The conceptualization of foreign direct investment and cultural heritage as common goods may provide an additional paradigm for analyzing the interaction between international investment law and international cultural law. The potential for a conflict of norms is inherent in every legal system. As such, this should not be conceived as a sort of anomaly in the law, but as a characteristic of the system.100 Not only does international law not constitute an exception to this notion, but it offers a fertile ground for overlapping norms and conflicting obligations. The multitude of lawmakers and the constellation of courts and administrative bodies are elements which all contribute to the complexity of the system. As Slaughter contends, conflict may be seen as ‘the motor of positive change’101 and the successful management of conflicts may actually strengthen the legal order.102 In this sense, far from neglecting cultural concerns, investment treaty tribunals have taken cultural concerns into account, and this can lead to the coalescence of good cultural governance standards. More research, however, is needed to ensure that such standards, as elaborated by arbitral tribunals, fully conform with those elaborated under human rights and other international law courts and tribunals. Furthermore, law and   Mattei U (n 71) v.   Pauwelyn J, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (New York, 2003) 12. 101   Slaughter AM, A New World Order (Princeton and Oxford, 2004) 209. 102   Ibid. 99

100

248  Valentina Vadi economics approaches may be useful as they provide an additional conceptual framework; however, they do not constitute either the best or the ultimate perspective; rather, other paradigms need to complement this analysis.

12 New Rules and Procedures for the Prevention and Settlement of Cultural Heritage Disputes: A Critical Appraisal of Problems and Prospects ALESSANDRO CHECHI

M

I. INTRODUCTION

ANY ARE THE consequences of the illicit trafficking in cultural objects. One can point to the destruction and mutilation of immovable sites and the dispersion of works of art. Another notorious effect is the proliferation of restitution claims. Contrary to what it may appear, restitution claims are not only frustrated by the uncooperative behaviour of current holders. Significant hurdles are also posed by the drawbacks of existing national and international regulations. Indeed, the legal framework that has been built since the end of the Second World War for safeguarding the world cultural heritage has proven to be imperfect in many respects. The treaties adopted under the aegis of the United Nations Educational, Scientific, and Cultural Organization (UNESCO)1 neither regulate the issue of the applicable law nor harmonize domestic legislation. In addition, international treaties and domestic laws are not retroactive. Other problems are posed by the statutory norms barring the exercise of legal action. These include the rules that subject the starting of judicial proceedings to certain time limits, or that regulate prescription or standing, or that grant immunity from seizure to artworks temporarily on loan from abroad. Another major pitfall of the existing legal regime is the 1   These include the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property (17 November 1970, 823 UNTS 231 – hereafter ‘1970 UNESCO Convention’), the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (24 June 1995, ILM 1995, 1322 – hereafter ‘UNIDROIT Convention’), and the Convention on the Protection of the Underwater Cultural Heritage (2 November 2001, ILM 2002, 37 – hereafter ‘2001 UNESCO Convention’).

250  Alessandro Chechi lack of a dedicated forum for resolving disputes. None of the existing treaties sets up a special international court or adequate mechanisms of control to ensure the consistent application of their norms.2 As a result, the controversies involving cultural assets are to be settled through political or diplomatic negotiations or, if these fail or are not available, through existing dispute settlement mechanisms, which include litigation before domestic courts or international tribunals and the dispute resolution means alternative to litigation (hereafter ADR), ie negotiation, mediation and arbitration. It is against this background that a number of international and non-governmental organizations have established specific rules and procedures aimed at coping with the issue of the resolution of cultural heritage-related disputes. In particular, these institutions have either expanded the mandate of existing bodies or set up brand new mechanisms. These newly developed procedures differ from pre-existing ADR options for being specifically tailored to deal with cultural heritage disputes. The purpose of this chapter is to assess the efficacy (or inefficacy) of such new ADR rules and procedures. The discussion is divided into three parts. The first part (section II) describes the new ADR methods. The second part (section III) provides a critical assessment of these dispute settlement mechanisms. The third part (section IV) brings the focus back into a larger context, namely the discourse over the coherent development and effective implementation of the international law concerning cultural heritage. This part is followed by some general concluding remarks (section V). II.  NEW RULES AND PROCEDURES FOR THE PREVENTION AND SETTLEMENT OF CULTURAL HERITAGE DISPUTES

The institutions that have contributed to an increase in the density of the mechanisms for the prevention and the resolution of disputes in the field of tangible cultural heritage are UNESCO, the World Intellectual Property Organization (WIPO) and the International Council of Museums (ICOM). At the outset, it is worth emphasizing that the developments prompted by these international and non-governmental organizations can be looked 2   The 1970 UNESCO Convention (n 1) addresses the problem of dispute settlement at only one point: Article 17(5) provides that, when two States Parties to the Convention are engaged in a dispute over its implementation, UNESCO can offer its ‘good offices to reach a settlement between them’. The UNIDROIT Convention (n 1) provides that claims concerning its application may be brought before ‘the courts or other competent authorities of the Contracting State where the cultural object is located’ (Article 8(1)) and that the parties are permitted to submit their dispute to arbitration (Article 8(2)). The 2001 UNESCO Convention (n 1) contains an elaborate dispute settlement system (Article 25), but it only encompasses inter-State claims, whereas it can be predicted that most of the disputes over underwater heritage will be between States and non-State entities.

  Rules and Procedures for Cultural Disputes  251 at from three different perspectives. First, these new ADR rules and procedures make it possible to sustain the view that non-adversarial and nonjudicial means represent the most effective pathway for the prevention and resolution of restitution claims. Second, they confirm the opinion that existing international courts are ill-equipped to resolve disputes over cultural heritage.3 Third, the developments under consideration reproduce analogous initiatives adopted at the domestic level. For instance, since the eruption of the Holocaust-looted art restitution movement at the end of the 1990s, various non-judicial institutions have been set up in various States to resolve restitution disputes.4 A.  UNESCO and the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation The task of UNESCO is to ‘contribute to peace and security by promoting collaboration among the nations through education, science and culture’.5 UNESCO pursues its objectives through the adoption of various legal instruments – such as recommendations, declarations and conventions. Instead, as hinted above, it has not come to play a decisive role as a forum for the resolution of cultural heritage disputes. In effect, UNESCO has confined itself to promoting the settlement of disputes through cooperation. This is demonstrated by the intergovernmental nature of the restitution procedure under Article 7(b)(ii) of the 1970 UNESCO Convention and by the nature and functions of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (hereafter ICPRCP). Created in 1978,6 the ICPRCP is a permanent intergovernmental body that was entrusted with the mandate to assist UNESCO Member States in dealing with cases falling outside the scope of application of the 1970 UNESCO Convention, such as the disputes concerning historical cases of cultural objects lost as a result of colonial or foreign occupation. In effect, the ICPRCP’s initial objective was to complete the decolonization process and to facilitate the reconstruction of the cultural heritage of former 3  See Chechi A, ‘Multi-Level Cooperation to Safeguard the Human Dimension of Cultural Heritage and to Secure the Return of Wrongfully Removed Cultural Objects’ in Lenzerini F and Borelli S (eds), Cultural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law (Leiden/Boston, 2012) 347 ff, 354–58. 4   These include the Kommission für Provenienzforschung (Austria), the Commission d’indemnisation des victims de spoliations (France), the Restitution Committee (the Netherlands), the Spoliation Advisory Panel (the United Kingdom) and the Beratende Kommission (Germany). 5   Article I, UNESCO Constitution (1945). 6   Established with Resolution 20 C4/7.6/5, 24 October–28 November 1978.

252  Alessandro Chechi colonies through the repatriation of material from the museums of former colonial powers.7 Therefore, the Committee’s focus did not encompass the issue of illicit traffic per se. The ICPRCP has no jurisdictional power to rule in disputes between States. Rather, it may simply act in an advisory capacity, thereby offering a framework for discussion and negotiation. Therefore, States are neither compelled to bring a case before it, nor to abide by its recommendations. The ICPRCP’s Statutes provide that a return request can be made for: [A]ny cultural property which has a fundamental significance from the point of view of the spiritual values and cultural heritage of the people of a Member State or Associate Member of UNESCO and which has been lost as a result of colonial or foreign occupation or as a result of illicit appropriation (Article 3(2) ICPRCP Statutes).

A State can bring a case before the ICPRCP only if bilateral negotiations with the State in which the requested object is located have failed or have been suspended. Instead, cases where Article 7 of the 1970 Convention applies cannot be brought to the Committee.8 Over the years, the ICPRCP has been called on to solve eight cases only.9 Admittedly, one of the main reasons for this dismaying caseload is the unequal bargaining power of former colonial powers and requesting States. Another reason may be that State-run museums oppose repatriation. In particular, these often maintain that cultural objects were obtained in accordance with laws and custom applicable at the time of the acquisition, or that requesting States lack facilities and resources for ensuring the preservation of the requested material. Further, it must also be acknow­ ledged that the procedure for the lodgement of claims with the ICPRCP is complex or not accessible to many States because it requires the input of information which is not easily available. In view of these difficulties, in October 2003 the UNESCO General Conference adopted a Resolution which invited the Director-General to present ‘a strategy to facilitate the restitution of stolen or illicitly exported cultural property by [. . .] strengthening the mandate of the Intergovernmental Committee [. . .] in terms of proposals of mediation and conciliation for Member States’.10 Following the observations adopted by the ICPRCP at its 7   In addition, the ICPRCP was charged with: (i) undertaking research and studies; (ii) fostering public information campaigns; (iii) guiding the planning and implementation of UNESCO’s activities; and (iv) promoting exchanges of cultural property (see Article 4 ICPRCP Statutes). 8   ICPRCP, Guidelines for the use of the ‘Standard Form Concerning Requests for Return or Restitution’, 30 April 1986, CC-86/WS/3, 17. 9  See Prott LV, ‘The History and Development of Processes for the Recovery of Cultural Heritage’ in Prott LV (ed), Witnesses to History. A Compendium of Documents and Writings on the Return of Cultural Objects (Paris, 2009) 16. 10   32 C/Resolution 38, para 9(a), p 66.

  Rules and Procedures for Cultural Disputes  253 13th session11 and the Decision of the Executive Board,12 the General Conference amended the Statutes of the Committee in 2005 with 33 C/ Resolution 44. Article 4(1) of the ICPRCP Statutes now reads as follows: The Committee shall be responsible for: [. . .] seeking ways and means of facil­ itating bilateral negotiations for the restitution or return of cultural property to its countries of origin when they are undertaken according to the conditions defined in Article 9. In this connection, the Committee may also submit pro­ posals with a view to mediation or conciliation to the Member States concerned, [. . .] provided that any additional, necessary funding shall come from extra budgetary resources. For the exercise of the mediation and conciliation functions, the Committee may establish appropriate rules of procedure. The outcome of the mediation and conciliation process is not binding on the Member States concerned, so that if it does not lead to the settlement of a problem, it shall remain before the Committee [. . .].

Apart from clarifying that the regular UNESCO budget will not cover the costs of mediation and conciliation, Article 4(1) empowers the ICPRCP to make a proposal for mediation or conciliation to States that have submitted a dispute before it and specifies that the outcome of such processes is not binding. Pursuant to Article 4(1), in June 2007 the Secretariat of the ICPRCP presented a set of draft rules of procedure on mediation and conciliation. These rules, which were adopted in September 2010,13 confirm that mediation and conciliation under the aegis of the ICPRCP are voluntary and that the outcome ‘shall be binding on the Parties only when they reach a binding agreement on it’ (Article 10(4)). Article 10(1) describes the ways in which mediation or conciliation procedures can be concluded and establishes that if these have failed the dispute can nonetheless ‘remain before the Committee’ (Article 10(3)). Furthermore, the Rules of Procedure regulate the process for appointing mediators and conciliators,14 the relationship between mediation or conciliation procedures and other dispute settlement proceedings (Article 6(4)(5)), and the issues of time (Articles 8(9) and 10(1)(c)), cost (Article 11) and confidentiality (Article 8). Article 4 was the most debated provision of the Rules of Procedure. It identifies the Parties that can have recourse to mediation or conciliation procedures. Certain States submitted that the ICPRCP should concern itself only with inter-States disputes, while other States contended that, as 11   Recommendation 3, Report on the 2004–2005 Activities and the Thirteenth Session of the ICPRCP, Doc 33 C/REP/15, 23 August 2005. 12   171 EX/Decision 17. 13   Doc CLT-2010/CONF.203/COM.16/6, Recommendation No 4; Doc CLT-2010/ CONF.203/COM.16/7. 14   The Rules establish that States will have the option of choosing their mediators or conciliators from the list of independent experts that will be maintained by the ICPRCP Secretariat (Article 2(6)). Hence, the ICPRCP will not act as a mediator or conciliator, nor will it choose mediators or conciliators.

254  Alessandro Chechi long as the requesting Party is a Member State or Associate Member of UNESCO, the mediatory and conciliatory procedures can involve a nonState entity if this is the current holder of a requested property. A compromise was reached after a lengthy debate. Article 4 now establishes that only UNESCO Member States and Associate Members of UNESCO may have recourse to a mediation or conciliation procedure (para 1). These States can represent either their own interests or the interests of public or private institutions located in their territory or the interests of their nationals (para 2). Crucially, Article 4(3) states that a ‘request to initiate a mediation or conciliation procedure may be submitted [. . .] with regard to a public or private institution’ that ‘is in possession of the cultural property concerned’. In this case, mediation or conciliation can start only if the State in which the requested institution is located is immediately informed of the request and does not object. The consent of the State of nationality of the requested institution is important because participation and assistance in a procedure of mediation or conciliation is costly and because the initiation of such a process might have repercussions on existing bilateral relations.15 It follows that the mediatory and conciliatory functions of the ICPRCP will not apply to cases where the holder of a contested object is an individual. Article 4 is complemented by Article 3, which reads: 1. Mediation and conciliation procedures require the consent in writing of the Parties before they may be initiated. 2. Mediation and conciliation procedures shall be conducted [. . .] in accordance with the general principles of fairness, impartiality and good faith. [. . .]. 4. The Parties, the Mediator(s) or the Conciliator(s) shall participate with a view to facilitate an amicable and just solution or settlement of the dispute having due regard to international law and recognized principles.

This provision confirms the State-centric approach of mediation and conciliation procedures: States remain the protagonists of the process and, as such, they are empowered to shape the mediation and conciliation proceedings to fit their needs. The invocation of the principles that traditionally govern inter-State relations evidences that these mechanisms are not detached from the body of international law. However, the principle of State consent represents a procedural constraint that might impact on the efficacy of ICPRCP mediation and conciliation procedures. For instance, it may undermine the ability of non-State groups to exercise the collective right to self-determination and cultural development.16 This can occur when the State where these culturally distinct groups are settled refuses to 15  See Zedde K, ‘UNESCO’s Intergovernmental Committee on Return and Restitution of Cultural Property and the Mediation and Conciliation of International Disputes’ in Renold MA et al (eds), Resolving Disputes in Cultural Property (Geneva, 2012) 107 ff, 114. 16  See Vrdoljak AF, International Law, Museums and the Return of Cultural Objects (Cambridge, 2006) 214–15.

  Rules and Procedures for Cultural Disputes  255 bring the claim to the attention of the ICPRCP to avoid straining its relations with the country where the disputed object is located. B  WIPO Arbitration and Mediation Center Established in 1967,17 WIPO is a specialized agency of the United Nations dedicated to the development of a balanced and effective international intellectual property system as a means of stimulating innovation and creativity for the economic, social and cultural development of all countries.18 WIPO’s core tasks include, inter alia: supporting the evolution of intellectual property law; administering international treaties; assisting governments and organizations in employing intellectual property for economic development; and providing global services for the protection of intellectual property.19 WIPO is also responsible for a number of activities related to the protection of indigenous peoples’ cultural heritage. The necessity to protect indigenous peoples’ heritage through intellectual property is proved by various examples of misappropriation and exploitation: indigenous art copied onto carpets, T-shirts and greeting cards; traditional music fused with dance rhythms to produce albums; indigenous words and names trademarked and used commercially; traditional medicinal knowledge patented by pharmaceutical companies without neither recognition nor fair remuneration for indigenous peoples. WIPO began to work in this area at the beginning of the 1980s in cooperation with UNESCO.20 Furthermore, in 2000, the WIPO General Assembly established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (hereafter IGC).21 It is not possible, within the limited space of this chapter, to provide a detailed examination of the many interesting aspects of the IGC’s activity. Nevertheless, it is worth underlining that a number of IGC studies have emphasized that ADR mechanisms are particularly appropriate for the resolution of disputes concerning indigenous peoples’ heritage.22 17   See the Convention Establishing the World Intellectual Property Organization, 14 July 1967. 18   See at: . 19   WIPO – An Overview, 2010, available at: . 20  See Stoll P-T, ‘Indigenous Peoples, Indigenous Knowledge and Indigenous Resources in International Law’ in von Lewinski S (ed), Indigenous Heritage and Intellectual Property. Genetic Resources, Traditional Knowledge and Folklore (The Hague/New York, 2008) 5 ff, 30 ff; and Lucas-Schloetter A, ‘Folklore’ in von Lewinski S (ed), ibid, 259 ff. 21   See at: . 22   See, eg, WIPO Secretariat, ‘Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources: The International Dimension’, Doc WIPO/GRTKF/IC/6/6, 30 November 2003, p 24, available at: ; Torsen M and Anderson J, ‘Intellectual Property and the Safeguarding of Traditional Cultures – Legal Issues and Practical Options for Museums,

256  Alessandro Chechi In particular, these studies underlined that disputes concerning indigenous peoples’ heritage should be settled preferably through the WIPO Arbitration and Mediation Center (hereafter WIPO Center). Established in 1994, the WIPO Center offers dispute resolution mechan­ isms to respond, on a voluntary and consensual basis, to the specificities of international intellectual property-related disputes.23 In particular, it appears that the Center was established in recognition of the fact that the conditions for the effective use of intellectual property include the availability of time and cost-efficient alternatives to litigation for the resolution of disputes that may interfere with the optimal exploitation of such assets.24 The Center has become the principal international institution for the resolution of intellectual property disputes through arbitration, mediation, expedited arbitration and expert determination.25 The WIPO Center is open to any stakeholder and acts both as a resource center and a case administrator.26 As an administering authority, the Center makes use of its multilingual case management system to, inter alia, provide electronic case communication tools and procedural guidance, as well as help the Parties in submitting disputes to WIPO procedures, selecting mediators, arbitrators or experts, and arranging meetings. As a resource center, it administers a database of specialized mediators, arbitrators and experts, organizes training and workshops, and provides the WIPO ADR Rules.27 These Rules have been developed by leading specialists and contain specific provisions that are particularly suitable for intellectual property disputes. In addition, the WIPO Center has set up a tailored ADR Service for Art and Cultural Heritage (hereafter WIPO ADR Service) in order to enhance dispute resolution efficiency in this area.28 The WIPO ADR Service is Libraries and Archives’, WIPO Publication No 1023(E), 2010, available at: ; Pantalony ER, ‘WIPO Guide on Managing Intellectual Property for Museums’, 2007, available at: . 23   For an overview see Gurry F, ‘The Dispute Resolution Services of the World Intellectual Property Organization’ (1999) Journal of International Economic Law 385 ff. 24   See at: . 25   To date, the WIPO Center has administered over 270 mediations and arbitrations. See at: . 26   Theurich S, ‘Alternative Dispute Resolution in Art and Cultural Heritage – Explored in the Context of the World Intellectual Property Organization’s Work’ in Odendahl K and Weber PJ (eds), Kulturgüterschutz, Kunstrecht, Kulturrecht: Festschrift für Kurt Siehr zum 75 (Baden-Baden, 2010) 569 ff, 587 ff. 27   The Rules on Arbitration, Mediation, Expedited Arbitration and Expert Determination are available at: . 28   See and Theurich S, ‘Designing Tailored Alternative Dispute Resolution in Intellectual Property: The Experience of WIPO’ in De Werra J (ed), Résolution des litiges de propriété intellectuelle. Actes de la Journée de droit de la propriété intellectuelle du 8 février 2010 (Geneva, 2010) 175 ff. Further information is available at: .

  Rules and Procedures for Cultural Disputes  257 based on the application of the standard WIPO Rules and on the provision of additional services. Essentially, these services revolve around the setting up of a specialized list of mediators, arbitrators and experts that combine qualification in art and cultural heritage matters with relevant expertise in the area of dispute resolution. They can be appointed by Parties under WIPO Rules, but Parties are also free to select professionals from outside the list. The expertise and qualifications of the specialists inscribed in such a list – together with the Party’s autonomy, confidentiality and flexibility provided for by the standard WIPO Rules – make the WIPO ADR Service a useful tool for the settlement of all types of cultural heritage dispute. These can involve private or public stakeholders, legal or non-legal issues, and such varied matters as authenticity, digitization, use and misuse, donation, exhibition, ownership, restitution, return or repatriation and restoration.29 Moreover, upon request, and when appropriate, the WIPO Center can provide guidance in the establishment of adapted ADR frameworks, including rules, fees and clauses.30 As such, the WIPO ADR Service promises to bring about creative solutions and remedies that can be tailored to the needs of the Parties and the factual circumstances of the case. For instance, these can go beyond monetary relief and can include long-term loans and co-ownership.31 Over the last few years the WIPO Center has administered a number of cases involving tangible heritage. However, the Center only provides concise examples in an anonymous form in order to respect the confidentiality sought by the Parties. Nevertheless, these summaries are important in order to foster the resort to the WIPO ADR Service.32 C. ICOM ICOM, a non-governmental and non-profit organization, is the only institution representing the international community of museums and museum professionals. Established in 1946, it deals with museum concerns ranging from security to illegal trafficking. Over the years ICOM has developed various tools to fight against the illicit trade in cultural objects. One of these tools is the Code of Ethics for Museums.33 This Code sets minimum standards to museums for their professional practice and performance in terms of acquisition and transfer of collections that reflect the principles generally accepted by the international museum community. Moreover,   See at: .   Ibid.   Theurich S (n 28) 186 ff. 32   Theurich S (n 26) 591 ff. 33   Available at: . 29 30 31

258  Alessandro Chechi ICOM contributes to the fight against illicit trafficking by: (i) providing training for museums’ personnel; (ii) offering tools to make inventories of museums’ collections; (iii) publishing international guidelines of security; (iv) encouraging States to adopt legislation and to ratify international treaties; (v) collaborating with international organizations and national enforcement agencies; and (vi) raising awareness about the detrimental consequences of the illicit trade through publications and the organization of workshops.34 As far as the issue of dispute settlement is concerned, it has been the policy of ICOM to encourage the amicable resolution of restitution claims since at least 1983. In that year, the General Conference of ICOM recommended that disputes regarding the ownership of artefacts in museum collections should be settled where possible through voluntary procedures such as mediation or informal negotiation rather than through lengthy and expensive litigation.35 As part of the same effort, in May 2011 ICOM launched – together with the WIPO ADR Service – a special mediation process, the ICOM-WIPO Art and Cultural Heritage Mediation Program (hereafter ICOM-WIPO Mediation).36 This resource is the result of the long-standing relationship between ICOM and WIPO and of recent initiatives calling for the adoption of new and innovative methods to facilitate the settlement of cultural heritage disputes.37 ICOM and the WIPO Arbitration and Mediation Center provide procedural advice and support to disputants that decide to resort to the ICOMWIPO Mediation. The parties are provided with a clear and efficient procedural framework set out in the ICOM-WIPO Mediation Rules (hereafter Mediation Rules).38 As clarified by Article 2, ‘[t]he scope of the mediation procedure is intended to cover disputes relating to ICOM’s areas of activities, including but not limited to return and restitution, loan and deposit, acquisition, and intellectual property [. . .]’. In effect, it may also cover issues relating to digitalization, donation, droit de suite, and misappropriation or misuse of traditional cultural expressions. The same Article states that the scope of the mediation procedure may involve ‘public or private parties including but not limited to States, museums, indigenous   See: .   See Statement by the President of ICOM, Cummins A, ‘Promoting the use of Mediation in Resolution of Disputes over the Ownership of Objects in Museum Collections’, 2006, available at: . 36   ICOM, ‘ICOM and WIPO to Join Forces in Cultural Heritage and Museum Fields’, 3 May 2011, available at: . 37   See eg the ICOM Legal Affairs & Properties Standing Committee, ‘Report on the International Process for the Resolution of Disputes over the Ownership of Objects in Museum Collections’ (2005); and ICOM’s General Assembly Resolution No 4, ‘Preventing Illicit Traffic and Promoting the Physical Return, Repatriation, and Restitution of Cultural Property’ (2007). 38   See at: . 34 35

  Rules and Procedures for Cultural Disputes  259 communities, and individuals’. In effect, the Mediation Rules are available also to non-ICOM-members. The Mediation Rules provide for the establishment of a list of mediators with expertise and experience in art and related areas (Article 7) that can be appointed by the parties (Article 8). Furthermore, the Mediation Rules refer to the ICOM Code of Ethics for Museums as a tool providing guidance for the mediator and the parties (Article 14). The Mediation Rules further include: (i) safeguards for mediator impartiality and independence; (ii) timelines; (iii) guarantees of confidentiality; (iv) a reduced schedule of fees on a not-for-profit basis; and (v) specific model mediation clauses and submission agreements. Unsurprisingly, the Mediation Rules confirm that mediation binds the disputants only if they agree to accept it. Article 17 further states that the mediator can either promote the settlement of the issues in dispute that he believes to be appropriate or, when he believes that any issues ‘are not susceptible to resolution through mediation’, he may propose procedures for resolving those issues which are most likely ‘to lead to the most efficient, least costly and most productive settlement’. These other procedures and means include expert determination or expedited arbitration. The Mediation Rules offer two further options for dispute settlement. First, in cases where the Parties have not concluded a mediation agreement – ie a contract clause or a separate submission agreement with which the parties agree to submit to mediation all or certain disputes which have arisen or which may arise between them – WIPO and ICOM are available to carry out their good offices upon request. Such good offices aim to facilitate the submission of disputes to ICOM-WIPO Mediation. Second, disputants have the possibility of combining the mediation procedure with other dispute resolution mechanisms, such as WIPO arbitration, expedited arbitration, or expert determination. III.  AN APPRAISAL

The mechanisms introduced by UNESCO, WIPO and ICOM should be considered as the more recent and vigorous evidence that ADR mechanisms have become the most suitable means to resolve cultural heritage disputes, as a substitute of litigation before domestic and international courts. Indeed, even a cursory examination of the practice reveals that the vast majority of disputes concerning art objects which have arisen in the past three decades have been settled through such means.39 39  See Fellrath Gazzini I, Cultural Property Disputes: The Role of Arbitration in Resolving NonContractual Disputes (Ardsley, 2004) 59 ff; Bazyler JM, ‘Nuremberg in America: Litigating the Holocaust in United States Courts’ (2000) University of Richmond Law Review 1 ff, 165; Borodkin JL, ‘The Economics of Antiquities Looting and a Proposed Legal Alternative’ (1995)

260  Alessandro Chechi Negotiation is the primary ADR mechanism for resolving disputes. It allows the parties to retain control over the process without involving third parties and to cooperate in order to create win-win solutions. Negotiation is an option available at any time, either together with, or as a part of, other processes. For instance, sometimes it runs parallel to lawsuits. Several cases demonstrate that negotiation is a suitable technique for resolving restitution requests about artefacts stolen, illicitly exported, clandestinely excavated or wrongfully removed in times of war or colonial domination.40 The agreements concluded in the past few years between States and between States and museums are illustrative. These can be seen as efficient non-adversarial settlements through which the parties involved have negotiated mutual advantages besides the restitution of claimed objects. For instance, the agreements concluded between 2006 and 2008 by the Italian Government with the Boston Museum of Fine Arts, the New York Metropolitan Museum of Art and the J Paul Getty Museum of Los Angeles included clauses on exchanges, loans and programmes of cooperation involving the sharing of information about potential future acquisitions and collaboration in the areas of scholarship and conservation.41 Mediation constitutes a highly suitable option when the antagonism between the parties impedes direct negotiations. The mediator’s task is: (i) to bring the parties together to cooperate in a continuous process of consultation; (ii) to promote bargains and reciprocal concessions; and (iii) to reach a mutually satisfactory agreement in a flexible, expeditious, confidential and less costly manner. One excellent example of the advantages of mediation is provided by the dispute between the Swiss cantons of Zurich and St Gallen. These resorted to the mediation of the Swiss Confederation to solve a dispute over a collection of manuscripts, paintings and some astronomical instruments that were removed during the War of Villmergen of 1712.42 Arbitration is another non-judicial method of settling disputes. Yet it shares some features of litigation. Indeed, arbitration is a resolution mode that does not seek to compromise disputes because it is decisional by nature. Instead, unlike judicial settlement, arbitration is not tied to pre-established procedural and substantive rules and hence it may prove to be particularly flexible for the resolution of legal issues. In this respect, the primary benefit of arbitration resides in the parties’ power to shape the process to fit their needs. In practice, disputants can agree, inter alia, on the selection of one or more arbitrators, Columbia Law Review 377 ff, 403; and Coggins CC, ‘A Licit International Traffic in Ancient Art: Let There Be Light!’ (1995) International Journal of Cultural Property 61 ff, 75. 40   See the examples listed in ArThemis, a database containing case notes about disputes over cultural objects created by the Art-Law Centre of the University of Geneva, available at: . 41   Ibid. 42   Ibid.

  Rules and Procedures for Cultural Disputes  261 the applicable law, as well as the rules of evidence to be applied. The classical example of arbitration in the field of art is the Altmann case. Maria Altmann brought suit in the United States against the Republic of Austria and the Austrian National Gallery to recover six paintings by Gustav Klimt that the Nazis took from her Jewish uncle, Ferdinand Bloch-Bauer, during the Second World War. Although the Supreme Court of the United States lifted Austria’s jurisdictional immunity,43 the disputants reached an agreement to end the litigation and submit the dispute to arbitration in Austria. The arbitration panel ruled that Austria was obliged to return five of the six masterpieces to Maria Altmann. In the light of the above, it appears that ADR means combine different virtues. The first advantage resides in the parties’ power to tailor the settlement process according to the interests at stake and the circumstances of the dispute. Second, given that private settlement is likely to be speedier, ADR means allow the parties to lower the costs of litigation. Third, these mechanisms provide for flexibility and creativity for handling disputes relating to cultural heritage that cannot be achieved through litigation. ADR mechanisms broaden the number of remedies available to the parties and hence might lead to mutually agreeable and conciliatory solutions and take account of emotional, spiritual and other extra-legal factors. Fourthly, since disputes are resolved out of the public eye, extracurial resolution ensures confidentiality and privacy. Secrecy is pivotal not only to art trade professionals – who want to avoid reputational harm and protect their confidential relationships – but also indigenous peoples in cases involving secret sacred materials and rituals. Lastly, ADR means entail neutrality and fairness as disputants can appoint independent specialists with expertise in the specific subject matter at issue, as well as knowledge of the cultural and linguistic background of the parties. All in all, it can be argued that these virtues derive from the fact that such dispute settlement procedures operate in the ‘shadow of the law’. In other words, ADR means may provide such benefits as efficiency, expeditiousness, flexibility and informality because they are free from the constraints implied by juridical orders and structured legal systems. Indeed, ADR procedures can be seen as the response to the excessive technicality and formalism of court litigation. The unsustainable delay and prohibitive costs of court proceedings and the publicity of the procedure and of the final verdict constitute other vexing problems. Other shortcomings are the antagonism between winners and losers engendered by litigation and the national judges’ lack of experience in art and cultural matters: not only are judges mistaken in equating artefacts to chattels, but they also have an insufficient understanding of the dynamics of the illicit trade in antiquities.   Republic of Austria v Altmann, 541 US 677 (2004).

43

262  Alessandro Chechi Despite their virtues, it is rather unlikely that all controversies can be effectively resolved through ADR means. This is due to the fact that such methods are characterized by some important shortcomings. First, it is routinely assumed that ADR methods are less costly and time-consuming than litigation. This is certainly true as far as negotiation and mediation are concerned. Instead, this benefit is not always attainable by resorting to arbitration. The whole arbitral process, including the recognition and enforcement of the award, entails a lot of formalities and is not always expeditious. In part, this explains the rarity of arbitrated settlements. Second, arbitration entails a risk of partiality. Notwithstanding the obvious fact that each Party may select the arbitrator(s) who are inclined to support their own interests, it can be expected that arbitrators may favour whichever Party is most likely to need their services in the future, irrespective of the interests at stake.44 In addition, Pierre Lalive warned about the risk that ADR methods could be exploited by criminals, unethical art professionals or reckless collectors to avoid judicial proceedings and the ensuing sanctions.45 Third, ADR methods are consensual in nature. This constitutes the most significant handicap. This means that outside the realm of contractual disputes litigants may be reluctant to resort to negotiation, mediation or arbitration in the absence of significant incentives.46 This is illustrated by the abovementioned Altmann case, where the Republic of Austria rejected the initial proposal to submit the dispute to arbitration made by Maria Altmann, thereby forcing her to sue them in court. The same holds true as regards negotiation: only if all Parties have a perspective of mutual gain can they agree on starting negotiations. A related problem is that of enforcement. Negotiation cannot guarantee that a dispute will eventually be settled. Likewise, mediation is voluntary and hence there is no mechanism by which Parties can be compelled to honour a mediated settlement. The enforcement of arbitral awards is greatly facilitated by the 1958 New York Convention.47 However, the prevailing Party will have to move for the recognition and enforcement of the award through the court system of the relevant State if the losing Party fails to honour it. In the same manner, the losing Party can oppose this motion or, alternatively, can attempt to set aside or annul the award through the judiciary.48 44   Shapiro D, ‘Litigation and Art-Related Disputes’ in Byrne-Sutton Q and GeisingerMariéthoz F (eds), Resolution Methods for Art-Related Disputes (Zurich, 1999) 17 ff, 32–33. 45   Lalive P, ‘Themes and Perspectives: Litigation – A Declining Solution to HolocaustRelated Claims?’, paper presented at the conference ‘Dispute Resolution and HolocaustRelated Art Claims: New Principles and Techniques’, London, 18 October 2006. 46   Fellrath Gazzini I (n 39) 124–25. 47   Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 330 UNTS 38. 48   Article V of the 1958 New York Convention sets the conditions that allow judicial authorities to refuse the recognition or enforcement of an arbitral award at the request of the Party against whom it is invoked. Moreover, recognition or enforcement may be refused on its own motion by a court if: (a) the subject matter is not capable of settlement by arbitration;

  Rules and Procedures for Cultural Disputes  263 As pointed out above, the mechanisms introduced by UNESCO, WIPO and ICOM are also consensual in nature. For instance, Article 3(1) of the ICPRCP Rules of Procedure on Mediation and Conciliation affirms that ‘[m]ediation and conciliation procedures require the consent in writing of the Parties before that may be initiated’. However, it should be mentioned that this aspect has not paralysed the ICPRCP. Granted, over the years the number of cases formally entrusted to this body has been minimal.49 Yet, the ICPRCP has not been without influence. Indeed, its authority should not be judged by its docket. Rather, it should be acknowledged that, through its moral pressure, it has persuaded States, institutions and individuals to adopt collaborative perspectives and to make restitutions.50 The tens of thousands of returns that had taken place since 1978 testify to this. For this reason the ICPRCP has been defined as one of the most successful committees of UNESCO.51 In addition, the authority of the ICPRCP is demonstrated by the various tools instigated or produced – also in cooperation with other organizations – in order to enhance the implementation of the 1970 UNESCO Convention.52 Arguably, the same holds true as regards the mechanisms offered by WIPO and ICOM: despite their consensual nature, they have the potential to offer constructive possibilities of preventing and resolving disputes. In sum, it can be concluded that ADR’s virtues outnumber and offset the vices. IV.  ENHANCING THE PROTECTION OF A GLOBAL COMMON GOOD THROUGH ADR RULES AND PROCEDURES

The goal of the foregoing analysis was to shed light on the virtues and vices of ADR means. In addition, it has emphasized that the existing shortcomings do not reduce the importance of non-judicial methods with respect to the prevention and resolution of cultural heritage disputes. This or (b) the recognition or enforcement of the award would be contrary to the public policy of the country. See Shengchang W and Lijun C, ‘The Role of National Courts and Lex Fori in International Commercial Arbitration’ in Mistelis L and Lew JDM (eds), Pervasive Problems in International Arbitration (Alphen aan den Rijn, 2006) 155 ff. 49   See (n 9) and related text. 50   For an overview see: . 51   ICPRCP, Oral Report of the Rapporteur, Folarin Shyllon, Sixteenth Session, CLT-2010/ CONF.203/COM.16/8, October 2010, p 5, available at: . 52   These tools include: (1) the International Code of Ethics for Dealers in Cultural Property (1999); (2) the Database of National Cultural Heritage Laws (2005); (3) the Model Export Certificate for Cultural Property (2007, developed in conjunction with the World Customs Organization); (4) the Standard Form concerning requests for return or restitution; (5) the Model Provisions on State Ownership of Undiscovered Cultural Objects (2011, drafted by a group of experts from UNESCO and UNIDROIT); and (6) publications and videos aimed at awareness-raising.

264  Alessandro Chechi finding can be reinforced by emphasising that recourse to ADR procedures entails two further benefits. First, available evidence demonstrates that ADR methods promise to resolve cultural heritage disputes by ensuring the proper allocation of contested works of art on the basis of historic, educational, scientific and cultural priorities. In other words, ADR methods should be the preferred mode to settle disputes because these permit the achievement of nonzero-sum solutions which, in turn, reverberate positively on the preservation of a global public good. In effect, it appears that – together with UNESCO’s standard-setting activity – the increasing resort to ADR means may contribute to the progressive elevation of cultural heritage to the rank of an international common good, on a similar footing as human and peoples’ rights and the environment.53 In addition to being valuable at the level of the community or the State, culture is a public good that deserves universal support.54 This permits to emphasize that the safeguarding of cultural heritage requires more than definite and enforceable rulings imposed ab extra by a neutral judge according to strict law. Rather, it necessitates systems that may take account of the specificity of art and culture and of the unique features of the international art market; that can balance the Parties’ interests against the concerns of justice and fairness, also by reconciling the various moral, historical, cultural, financial, and legal issues involved. As the past is embedded in every work of art, legal and non-legal issues are intertwined in disputes over items of cultural heritage. These multiple factors can be addressed and reconciled through ADR means because these are not tied to pre-established procedural and substantive rules and because they entail the participation of experienced specialists. This is particularly true as regards disputes over objects lost as a result of colonial or foreign military occupation which occurred in the distant past. In these cases, ADR means permit to set aside the existing legal obstacles and to shift the focus on the factual circumstances of the taking, the ensuing damage and the function of the assets concerned for the memory and identity of the dispossessed individuals or groups. The second benefit is that the increasing resort to ADR means may lead to the development of the international law concerning cultural heritage. This is not only motivated by the fact that many of the available settlement agreements invariably contain clauses reflecting the provisions of the con53   Francioni F, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’ in Yusuf AA (ed), Standard-Setting in UNESCO, Normative Action in Education, Science and Culture (Leiden, 2007) vol I, 221 ff, 222, 236. 54   Francioni F, ‘Public and Private in the International Protection of Global Cultural Goods’ (2012) European Journal of International Law 719 ff; and Serageldin I, ‘Cultural Heritage as Public Good: Economic Analysis Applied to Historic Cities’ in Kaul I, Grunberg I and Stern MA (eds), Global Public Goods – International Cooperation in the 21st Century (New York/ Oxford, 1999) 240 ff, 240.

  Rules and Procedures for Cultural Disputes  265 ventions adopted under the aegis of UNESCO. More significantly, it can be argued that the growing number of inter-State and inter-institutional agreements achieved through the non-adversarial dispute settlement means made available by UNESCO, WIPO and ICOM may contribute to the crystallization of two general principles of customary international law: the first compelling the restitution to the country of origin of material lost in peace time as a result of theft, clandestine excavation or illicit exportation; the second obligating States to resort to cooperative means for the resolution of disputes concerning objects important for the history, identity and culture of a country or sacred or important to a culturally or ethnically distinct living community. In other words, it is argued that the procedural tools examined above could serve as catalysts for increasing the density and uniformity of State practice (diuturnitas) – which is composed of numerous treaties, UN resolutions and the legislative and judicial practice of States – and nourishing the conviction that such practice reflects, or amounts to, law (opinio juris). It should not be a matter of surprise that the new rules and procedures examined above may enhance the protection of a fundamental common good, foster States’ compliance with their international obligations, and contribute – under a perspective de lege ferenda – to the formation of new general principles of international law. In international law, the development of new legal rules generally follows the affirmation of public attitudes and ethical pronouncements. This is demonstrated by the fact that UNESCO treaties, recommendations and declarations, as well as the instruments of other international organizations or non-governmental organizations, regardless of their soft legal nature, have by and large had a profound effect: Through an incremental and cumulative process spanning three or four decades, they have helped transform what were initially perceived as remote and abstract propositions about the common interests and values (ie the public goods) of a hardly discernible international community into palpable concepts familiar to large sectors of international public opinion.55

In light of these considerations, the new rules and procedures developed by UNESCO, WIPO and ICOM should be praised as important attempts to foster, streamline and formalize the use of the non-adversarial dispute settlement means. Nevertheless, it remains to be seen whether the new non-judicial options will encourage more stakeholders to settle amicably cultural heritage disputes and whether they will prove to be complementary. They are in place now, but it is impossible to predict their actual role given the little time since their inception. As far as the ICPRCP is concerned, there has been no sign thus far of formally proposing mediation   Abi-Saab G, ‘General Conclusions’ in Yusuf AA (ed) (n 53) 395 ff, 399.

55

266  Alessandro Chechi or conciliation for the cases pending before it.56 Likewise, no dispute has been submitted to ICOM-WIPO Mediation (at least to the knowledge of the present author). Instead, the WIPO Arbitration and Mediation Center has already permitted the settlement of a few cases.57 V.  CONCLUDING REMARKS

The purpose of this chapter was to examine the dispute resolution options set up by UNESCO, WIPO and ICOM and to evaluate their role in the protection of cultural heritage. On the one hand, it has been demonstrated that the ICPRCP Rules of Procedure on Mediation and Conciliation, the WIPO Arbitration and Mediation Center, the WIPO ADR Service for Art and Cultural Heritage and the ICOM-WIPO Art and Cultural Heritage Mediation Program promise to support the efforts of those seeking to retrieve cultural objects lost as a result of theft, illegal export or other wrongful acts. On the other, this chapter has evidenced that ADR procedures entail two further benefits: the sound resolution of controversies and the development of international cultural heritage law. These go beyond the limited interests of the disputants and address some of the weaknesses of the existing legal regime: the lack of clear cut obligations regarding the recovery of art objects wrongfully removed other than in wartime situations and the absence of a dedicated forum for resolving disputes. Although they are in place, it is too early to say whether the new dispute settlement rules and procedures will fill the existing gaps and enhance the protection of cultural heritage. In any case, it seems that this global common good requires that the developments occurring in the field of dispute settlement must be accompanied by more incisive actions in other related fields. It is not difficult to imagine which actions would need to be taken at the domestic level. First, all States should introduce clearer legal prohibitions and stronger punitive measures. States should pass appropriate legislation for criminalizing all activities related to trafficking in cultural objects – including the import, export or transfer of ownership. As public museums are important participants in the inter­ national art market, States should also enact specific norms on their acquisition policies. By curtailing the demand for undocumented antiquities,

56   There are two cases pending before the ICPRCP: between Greece and the United Kingdom about the Parthenon Marbles and between Iran and Belgium about archaeological objects from the Necropolis of Khurvin. See at: . 57   See (n 32) and related text.

  Rules and Procedures for Cultural Disputes  267 these norms could create a sort of indirect regulation of the market.58 As far as punitive measures are concerned, penalties such as fines or imprisonment should be increased. In effect, in many States the light penalties inflicted for art-related crimes provide little deterrence for art theft and looting.59 In addition, punitive measures should be applied effectively and more widely, that is, not only against criminals – be they tomb raiders, thieves or smugglers – but also against purchasers – be they art professionals or dilettanti. The law should impose a cost on those who contribute directly or indirectly to the looting of sites by punishing the handling, selling and buying of looted antiquities.60 Recent court cases have revealed the functioning of the art trade, that the acquisition of antiquities is a well-organized business, and that as long as there is profit in looting and in smuggling there will always be somebody willing to run the risk of being caught.61 It is therefore evident that the measures put in place by source and market nations will remain unsuccessful as long as they do not control and discipline effectively the demand side of the market. For the deterrent effect of the legal regime to be most effective, the risk of detection and the certainty and severity of punishment must be high.62 This means that buyers should escape punishment only by proving that they have met the required standards of due diligence by engaging in reasonable efforts to investigate the provenance of the artworks to be bought and the status of the transferor. In addition, such laws should allow the seizure of illicitly traded objects and the confiscation of the proceeds of crime.63 Second, all States should promote education and specialized training. Law enforcement officers – police, customs and border officers – should be targeted for education in their duties regarding sites and cultural objects. Likewise, judges and prosecutors should be helped by training in the problems inherent in taking action on breaches of the laws controlling excavation and exportation. Art trade professionals and museum personnel should also be introduced to the prevailing ethical standards and to the effect demand has on source countries.64 In other words, it is necessary to build capacity to apply the law to concrete cases. 58   Gerstenblith P, ‘Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past’ (2007–08) Chicago Journal of International Law 169 ff, 194. 59   Kunitz M, ‘Switzerland & the International Trade in Art & Antiquities’ (2000–01) Northwestern Journal of International Law & Business 519 ff, 522. 60   Gerstenblith P (n 58) 174. 61   The convictions of Tokeley-Parry in England (R v Tokeley-Parry [1999] Crim LR 578) and Schultz in the United States (United States v Schultz, 333 F.3d 393 (2nd Cir NY, 10 June 2003) are symptomatic. 62   Mackenzie SM, Going, Going, Gone: Regulating the Market in Illicit Antiquities (Leicester, 2005) 21. 63   See United Nations Economic and Social Council, Recommendations of the Expert Group on Protection against Trafficking in Cultural Property, UN Doc E/CN.15/2010/5, 14 December 2009, p 4. 64   O’Keefe PJ, Trade in Antiquities. Reducing Destruction and Theft (London, 1997) 89 ff.

268  Alessandro Chechi In addition to this, there should be extensive publicity on the importance of protecting the artistic patrimony of the nation and on the damage caused by destruction and theft of antiquities. States should thus disseminate information on the prevention of theft and pillaging of cultural materials and on the consequences of dealing with clandestinely excavated or illicitly traded artefacts.65 States should encourage their citizens to report finds, denounce tomb raiders and to refrain from engaging in speculative looting. In this respect, education of local people where there is clandestine excavation can be an effective means. In many art-rich countries awareness-raising campaigns have bolstered local pride and, accordingly, resulted in a considerable reduction in clandestine excavations.66 This could be done, for instance, by demonstrating that the money received for antiquities at the source is relatively small compared to the price paid for them in destination markets. In turn, this will permit to emphasize that the looting causes the impoverishment of the territory and that the preservation and conservation of the local patrimony represents a sort of investment that – if accompanied by the building of infrastructures – could lead to the enrichment of the territory. In conclusion, it can be assumed that only the combination of efforts encompassing, inter alia, vigorous law enforcement, direct and indirect regulation of the acquisition practices of art professionals and effective dispute settlement means, would make it possible to counter the dangers denounced by UNESCO and other specialized institutions. These have repeatedly stressed that the existing worldwide art market where unprovenanced (and falsely provenanced) items are traded is unacceptable from an ethical and legal perspective. In this respect, the 1970 UNESCO Convention emphasizes that ‘cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding is origin, history and traditional setting’ and that States should ‘become increasingly alive to the moral obligations to respect its own cultural heritage and that of all nations’ against the dangers of destruction, ‘theft, clandestine excavation, and illicit export’.67

  See United Nations Economic and Social Council Recommendations (n 63) p 5.   O’Keefe PJ (n 64). 67   Preamble, 1970 UNESCO Convention (n 1). 65 66

13 Revising International Environmental Law through the Paradigm of Ecological Sustainability MASSIMILIANO MONTINI

T

I.  THE LACK OF EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL LAW

HE FIFTH GLOBAL Environment Outlook, issued by the United Nations Environment Programme (UNEP) in June 2012, shows that the global environmental situation is declining in many areas, despite the impressive existing framework of international environmental policy and law.1 In the last four decades, since the 1972 Stockholm Conference, which is normally said to coincide with the foundation of international environmental law, a huge number of treaties and soft law instruments have been concluded at international level. However, despite the rapid and impressive proliferation of international environmental law, it has been questioned by Bodansky whether ‘the accumulating mass of international environmental law has done very much to improve the environment’. There is in fact a growing perception that international environmental law has developed too much and not in a very coordinated way over the years. The result is a sort of ‘treaty congestion’, which ‘creates the potential for duplication of efforts, lack of coordination, and even conflict between different legal regimes’ within the environmental law field.2 A different reading of the unsatisfactory state of international environmental law, which focuses on the persistent institutional deficit at international level in the environmental governance and on the lack of compulsory dispute settlement mechanisms, is provided by Francioni, who argues that: ‘In spite of the progressive development at the level of treaty law and

  See UNEP, Fifth Global Environment Outlook (GEO 5), 2012.  See Bodansky D, The Art and Craft of International Environmental Law (Cambridge, MA, 2010) 35. 1 2

272  Massimiliano Montini soft law, international environmental law remains a weak and underdeveloped body of law’.3 A similar line of reasoning is proposed by Beyerlin and Marahun, who argue that despite ‘some success stories in specific fields, such as combating ozone depletion or trans-boundary air pollution’, ‘the normative system of international environmental law is far from perfect and shows severe gaps’. Moreover, ‘aware of the fact that humankind today faces an ever-growing number of global environmental problems with tremendous threat potential’, they conclude that ‘progress achieved to date is too fragmentary and sporadic’.4 These three ways of presenting and analyzing the ‘crisis’ which is presently affecting international environmental law, focuses on different aspects and open questions. In particular, the first one highlights the treaty congestion which characterizes the environmental sector and causes overlapping and sometimes conflict between parallel treaty regimes, without necessarily giving a positive contribution to the protection of the environment. The second one raises the issue that this sector, despite the enormous quantity of existing legal instruments, remains a rather weak one, due to the well-known lack of appropriate international institutions which may authoritatively steer actions in this field as well as due to the lack of compulsory dispute settlement mechanisms. The third one stresses the fact that the international environmental legal regime still has severe gaps and, with a few exceptions, is not able to effectively tackle some of the most serious environmental problems. All the three points of view presented above to describe the current ‘crisis’ of international environmental law raise, implicitly or explicitly, the question of the effectiveness of this corpus of norms. Nowadays, there is in fact a common understanding that most of the multilateral environmental agreements (MEAs) which are now in force at international level are not very effective either in preventing or reducing environmental pollution, nor in promoting a more careful and sustainable use of natural resources. Despite this general common understanding, the question of the effectiveness of the international treaties is not that easy to tackle. Preliminarily, it must be decided how we define effectiveness and how we can measure it with regard to the environmental field.5 In this respect, drawing from Young’s research, Bodansky has proposed to address the question of the effectiveness of international environmental law through the following three different meanings of the term effectiveness: 3  See Francioni F, ‘Realism, Utopia, and the Future of International Environmental Law’ in Cassese A (ed), Realizing Utopia. The Future of International Law (Oxford, 2012) 442 ff. 4  See Beyerlin U and Marahun T, International Environmental Law (Oxford, 2011) 439. 5   Young OR, International Governance: Protecting the Environment in a Stateless Society (Ithaca, NY, 1994) 140–60.

  Revising International Environmental Law  273 legal effectiveness, behavioural effectiveness and problem-solving effectiveness.6 The first meaning, namely legal effectiveness, refers to the compliance issue and aims at verifying whether the official and formal goal of a certain treaty is really achieved in objective terms. The second meaning, namely behavioural effectiveness, analyses, in rather subjective terms, the capacity of a certain treaty to cause positive changes in the behaviours of the Parties, them being States or citizens, towards achieving the treaty’s goals. Finally, the third meaning, that is the problem-solving effectiveness, looks at whether a certain treaty effectively helps in achieving its ultimate objectives, or in other terms, whether it contributes to address and solve the environmental problems it aims at addressing. As Bodansky correctly notes, lawyers tend to concentrate on the legal effectiveness of the environmental agreements. They normally focus their attention on whether the obligations of a certain treaty are effectively and formally respected by the Parties and consequently look at the degree of compliance that a certain agreement may be said to have achieved. This explains why so much effort has been devoted, in the last 20 years, to the challenge of promoting an increased compliance by States with their international environmental obligations. In particular, given the wellknown fact that in the environmental field, maybe even more notably than in other areas of international law, States are quite reluctant to being subjected to traditional dispute settlement mechanisms, the efforts at international level have mostly concentrated on the development of alternative dispute settlement or dispute avoidance mechanisms, normally called non-compliance regimes.7 These non-compliance regimes have proliferated in particular in the environmental field, where some of the most successful experiences have taken place, for instance with regard to the Montreal Protocol on the Ozone Layer and the Kyoto Protocol on Climate Change.8 However, as Bodansky correctly points out, ‘compliance by itself is a poor indicator of a treaty’s value because it is neither a necessary nor a sufficient condition for behavioural or problem-solving effectiveness’. In fact, ‘a high degree of compliance (or even perfect compliance) might  See Bodansky D (n 2) 253.   Treves T et al (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (The Hague, 2009); Mitchell RB, ‘Compliance Theory: Compliance, Effectiveness, and Behaviour Change in International Environmental Law’ in Bodansky D, Brunnée J and Hey E (eds), The Oxford Handbook of International Environmental Law (Oxford, 2007) 893 ff; Beyerlin U, Stoll PT and Wolfrum R (eds), Ensuring Compliance with Multilateral Environmental Agreements (Leiden/Boston, 2006). 8  See Montini M, ‘Improving Compliance with Multilateral Environmental Agreements through Positive Measures: The Case of the Kyoto Protocol on Climate Change’ in Kiss A, Shelton D and Ishibashi K (eds), Economic Globalization and Compliance with International Environmental Agreements (The Hague, 2003) 157 ff. 6 7

274  Massimiliano Montini mean only that an international environmental regime is unambitious and does not require States to do much, if anything, to change their behaviour’.9 This is why, in order to determine the effectiveness of a treaty, one needs to look also at the behavioural effectiveness, which tries to determine whether a certain agreement had some recognizable causal effect, in the sense that it has induced a State to act differently than it would have done otherwise. In this respect, the key question becomes the assessment of whether and to what extent the obligations contained in a certain treaty have induced the Parties to modify their behaviours and how much this different approach has contributed in solving the underpinning environmental problems. Unfortunately, behavioural effectiveness is more difficult to detect and to measure than legal effectiveness. Despite that, the reference to behavioural effectiveness shows that one cannot be satisfied with a mere ‘formalistic’ approach towards compliance and effectiveness of a multilateral environmental agreement. This leads us to the third meaning of effectiveness, namely the so-called problem-solving effectiveness. Here, the question of the effectiveness of a treaty relates to the core question of whether a certain agreement concluded in this field effectively contributes to improving the quality of the environment, by preventing or reducing environmental pollution, by promoting a more sustainable use of natural resources or by tackling other complex global environmental issues, such as climate change. The three types of effectiveness may be in fact strongly related. If one looks for instance, as Bodansky suggests, at the example of the Kyoto Protocol on Climate Change, the legal effectiveness will be achieved to the extent that the developed country Parties comply with their emission reduction commitments, as listed in Annex B to the Protocol, during the commitment period 2008–12. However, in this case, the legal effectiveness may derive not so much from a change in the business-as-usual of the Parties, but may be also induced by other external factors, such as for instance the current economic crisis, which is causing a reduction in the industrial output and the related greenhouse gas emissions in many countries. In such a case, the behavioural effectiveness requirement may not be necessarily satisfied. Eventually, even if the legal and the behavioural effectiveness are reached, a consequence of the emissions limitation reductions imposed on the developed countries by the Kyoto Protocol may be the ‘leakage’ of certain industrial installations to developing countries, possibly giving rise to an overall increase, rather than a reduction, in the global emissions. This, not very unrealistic scenario, might lead to a situation where the problem-solving effectiveness is certainly not achieved by the treaty, which, despite its positive results with respect to the behaviour of some countries, will fail to provide an effective contribution to the  See Bodansky D (n 2) 254.

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  Revising International Environmental Law  275 overall decrease in greenhouse gas emissions in the atmosphere and to effectively tackle the climate change problem.10 For the purpose of the present analysis, the focus should be on the third type of effectiveness, namely the problem-solving effectiveness. However, the concept should be adapted and tailor-made to the environmental field. In this sector, in fact, the key question is to determine whether a certain international treaty regime is delivering positive results in envir­ onmental protection terms. In practice, therefore, in order to assess the effectiveness of multilateral environmental agreements we should essentially determine and evaluate their ‘environmental effectiveness’, which is their capacity to contribute to the achievement of environmental pro­ tection goals. II.  IMPROVING THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL LAW THROUGH THE PARADIGM OF ECOLOGICAL SUSTAINABILITY

A.  The Paradigm of Ecological Sustainability A necessary preliminary step for the assessment of the environmental effectiveness of multilateral environmental agreements is represented by the identification of the right paradigm to be used as the reference concept for the analysis and as the benchmark for the evaluation of the single treaties. My proposal is that such a paradigm is identified in the ‘ecological sustainability’ concept. The concept of ‘ecological sustainability’ may be said to refer essentially to the need for the human civilization to live in harmony with nature and the eco-systems which enable life on the planet and support human development. The inspiration for the choice of such a concept as the possible paradigm to be used for assessing the environmental effectiveness of international environmental treaties comes mainly from the work of Bosselmann, which refers to the principle of sustainability as the reference concept for transforming law and governance at the global level. In such a context, it should be underlined that the core of the principle of sustainability is represented by ecological sustainability, which is essentially ‘the duty of the human beings to protect and restore the integrity of the Earth’s ecological systems’.11 In this respect, it should be noted that, according to Bosselmann, the principle of (ecological) sustainability has a normative quality. In fact, it both reflects a fundamental morality (respect for ecological integrity)  See ibid, 256–57.  See Bosselmann K, The Principle of Sustainability (Aldershot, 2008) 53.

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276  Massimiliano Montini and requires action (protect and restore). Therefore it may be inferred that it is able to cause a legal effect.12 Such a duty to protect and restore is grounded in natural law, and the reference to the principle of (ecological) sustainability should help in limiting the negative effects of the highly positivist approach towards nature which has characterized the development of international environmental law so far. This approach, in fact, according to Bosselmann, has caused a widespread ‘environmental reductionism’, which now should be replaced by an ‘ecological expansionism’.13 The proposed new approach should aim at reducing the tendency to perceive the natural environment as a commodity and try to restore a key role for the preservation of the ecosystems as the right basis for a truly sustainable development. In this sense, the principle of sustainability, grounded on the ecological sustainability concept, may be the right paradigm for trying to replace the traditional anthropocentric vision of environmental law with a new approach, based on the recognition of the need to preserve the ecological integrity as the main overarching requirement. B.  Ecological Sustainability in Connection with Sustainable Development In order to exploit the full potential of the concept of ecological sustainability as a paradigm and a benchmark for assessing and improving the environmental effectiveness of environmental law, it is necessary to determine exactly its role in connection with the principle of sustainable development. In this sense, it is useful to refer once again to the analysis of Bosselmann, who identifies the concept of (ecological) sustainability as an idea which has its roots in the history of humanity and traces its application in the European history since the fourteenth century.14 Moreover, the author recalls the analysis and the words of Judge Weeramantry, who, in his Separate Opinion in the 1997 Gabcikovo-Nagymaros case, affirmed ‘the need for human activity to respect the requisites for its maintenance and continuance’.15 In such a context, the line of reasoning proposed by Judge Weeramantry, and recalled by Bosselmann, which places the foundation of the concept of (ecological) sustainability in the analysis of the key features of most of the ancient civilizations which prospered on the Earth, is based on the premise that the human sphere should  See ibid, 53.  See Bosselmann K, ‘Losing the Forest for the Trees: Environmental Reductionism in the Law’ (2010) Sustainability 2424 ff, 2431. 14  See Bosselmann K (n 11) 13. See also Hughes JD, An Environmental History of the World, (London/New York, 2001); Grober U, Sustainability: A Cultural History (Totnes, 2012). 15   See ICJ, Gabcikovo-Nagymaros Case, Separate Opinion of Judge Weeramantry, 1997, 18. 12 13

  Revising International Environmental Law  277 not be separated from the natural sphere. In other terms, according to this approach, economic development should not occur at the expense of ecological sustainability, which essentially consists in the preservation of the integrity of the eco-systems. As it has been correctly stated by Bosselmann, it is crucial to realise the ecological core of the concept of sustainable development. Not realising it means that social, economic and environmental interests ever know where to go. There is only ecological sustainable development or no sustainable development at all. The perceived environmental, economic and social as equally important components of sustainable development is arguably the greatest misconception of sustainable development and the greatest obstacle to achieving social and economic justice.16

This is a good start to address the question of the connection between the concept of ecological sustainability with the principle of sustainable development. In order to support his view that the core of the principle of sustainable development lies with the old concept of (ecological) sustainability, Bosselmann puts forward a major conceptual argument. This argument is based on the fact that the duty of human beings to live in harmony with the eco-systems has been a constant reference for all the traditional civilizations on Earth. This connection to the natural resource base for human development has been somehow weakened, if not lost, from the industrialization period onwards. However, there is an inherent value in the proposition that the basis for any kind of development must be placed on the ecological systems, as being related to local resources, for ancient and more primitive societies, or to global planetary eco-systems, for industrialized societies. Arguing on the basis of this assumption, the logical conclusion can only be that the economic and social dimensions which compose the contemporary understanding of the principle of sustainable development should not lead to any deviation from the ecological core of the concept. Quite the contrary, the ecological dimension should play a pivotal role with regard to the other two dimensions, in order to make the sustainable development concept really operational. Along this line of reasoning, paraphrasing Leopold,17 Bosselmann argues that ‘development is sustainable if it tends to preserve the integrity and continued existence of ecological systems, it is unsustainable if it tends to do otherwise’ and says that ‘this holistic, yet structured, concept of sustainable development equals ecologically sustainable development’.18  See Bosselmann K (n 11) 53.   Leopold A, A Sand County Almanac (New York, 1949) 262, which contains the following well known sentence which summarizes his land ethic: ‘A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.’ 18  See Bosselmann K (n 11) 53. 16 17

278  Massimiliano Montini Such an approach, which places the ecological dimension at the centre of the picture, starts from the need to provide clarity to the question of the long-debated interpretation of the principle of sustainable development. In this sense, Bosselmann proposes a logical interpretation of the term ‘sustainable development’, which focuses on the need to qualify the term ‘sustainable’. What is the essence of a sort of development that we can define ‘sustainable’ as opposed to ‘unsustainable’? The essence, according to Bosselmann, must be defined with respect to the object of the principle. Therefore, it cannot certainly be either ‘economic development’, or ‘social development’. For the same reason, the essence cannot consist in a combination of the three dimensions of sustainable development that places all of them at the same level. As a consequence, according to the author, only the ‘ecological sustainability’ represents the essence of ‘sustainable development’.19 This is, in fact, the (objective) core of the concept, which can provide the right direction to the consequent actions. The other two dimensions should be integrated with the ecological one, but only the latter should have a prominent role. If this is not the case, it will never be possible to make the principle of sustainable development become really operational. C.  Revising the Principle of Sustainable Development in the Light of Ecological Sustainability As mentioned above, the analysis provided by Bosselmann on the origins and the characteristics of the concept of ecological sustainability in connection with the principle of sustainable development shows that the essence of the latter principle should be in the former concept. The author also shows that despite the fact that, in historical and cultural terms, ecological sustainability played a crucial role in shaping the principle of sustainable development, since the appearance on the scene of the Brundtland Report the focus has tended to shift to the economic dimension of the principle at the expense of the original ecological core.20 Therefore, the origin of the misunderstanding and misinterpretation of the concept of sustainable development traces back to the Brundtland definition, according to which sustainable development is to be understood as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. Such a definition should be read in conjunction with Principle 3 of the Rio Declaration,21 which states that ‘the right to development must be fulfilled to equitably meet developmental and environmental needs of present and  See ibid.  See ibid. See Brundtland Report, Our Common Future, Oxford, 1987. 21   See Rio Declaration on Environment and Development, 31 ILM 874 (1992). 19 20

  Revising International Environmental Law  279 future generations’. They are both clearly concerned primarily, if not almost exclusively, with an anthropocentric approach. In other terms, they tend to promote human development as a primary objective, not necessarily limited by environmental considerations. As it has been correctly noted, under such a dominant understanding, ‘the primary concern of sustainable development is sustained human development’.22 This is confirmed by Principle 1 of the Rio Declaration, which affirms that ‘human beings are at the centre of concerns for sustainable development’. However, such an anthropocentric approach was not necessarily the only one possibly available for correctly interpreting and applying the concept of sustainable development. In fact, the reference to the rights of future generations could have been intended as the need to preserve and protect at the same time both the human and the non-human dimension, and as a duty for the present generation to maintain ‘the quality of the planet’, or in other terms the ecological integrity of the ecosystems on the planet, in order to leave the Earth to future generations in the best environmental condition.23 In brief, an eco-centric approach could have been chosen instead, or at least it should have been combined with the prevalent anthropocentric approach. The Brundtland definition, instead, as interpreted and applied with an anthropocentric vision in mind, has inevitably tended to reduce sustain­ able development to a primarily economic concept, just tempered by some (mostly inter-generational) social considerations and a very limited attention to environmental issues. This approach has been restated and reinforced by the 2002 Political Declaration of Johannesburg World Summit on Sustainable Development, which embraced an understanding of the concept of sustainable development based on the three interdependent and mutually reinforcing pillars, namely the economic, the social and the environmental ones. Moreover, along the same line of reasoning, in 2012, the Outcome Document of the Rio+20 United Nations Conference on Sustainable Development, named The Future We Want, reaffirmed that ‘people are at the centre of sustainable development’ and acknowledged ‘the need to further mainstream sustainable development at all levels, integrating economic, social and environmental aspects and recognizing their interlinkages, so as to achieve sustainable development in all its dimensions’. The tripartite structure of sustainable development, which is now dominant, reinforced the anthropocentric view already present in the Brundtland Report and paved the way for relegating the environmental 22  See Bosselmann K, ‘The Concept of Sustainable Development’ in Bosselmann K and Grinlinton D (eds), Environmental Law for a Sustainable Society (Auckland, New Zealand, 2002) 84. 23  See Brown Weiss E, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Tokyo/New York, 1989) 38.

280  Massimiliano Montini protection dimension to a very marginal role. This had very relevant consequences. In fact, in my opinion, the primary cause for the failure of the concept of sustainable development to contribute to the promotion of a high level of environmental protection during the last 25 years must be found exactly in the marginalization of the environmental dimension within its context. As a consequence, if sustainable development ought to have a meaningful role in the future, a major effort should be made to promote its correct interpretation, by promoting its correct location within its natural and historical ecological boundaries. To this effect, the relevance of the anthropocentric approach promoted by the 1987 Brundtland definition as well as by the three pillars (or three dimensions) conception of sustainable development endorsed by the 2002 Johannesburg Political Declaration and by the 2012 Rio+20 Outcome Declaration, should be greatly reduced. Before and beyond addressing the question of the choice between an anthropocentric or an eco-centric approach to sustainable development, there should be a widespread recognition of the absolute necessity to interpret and apply the concept of sustainable development by taking into account the need to act within the ecological boundaries of the Earth. In other terms, as Westerlund correctly points out, ‘sustainable development cannot take place without ecological sustainability, which in turn is related to environmental quality and natural resources’.24 From this line of reasoning, it descends the non-negotiable need to protect and preserve the ecological integrity of the eco-systems, which ensure life on the planet and finally enable human development. The analysis conducted above has tried to demonstrate that the failure of the concept of sustainable development to contribute to the promotion of a high level of environmental protection finds its origin in the misunderstanding and misinterpretation of the concept, which under the pressure of a marked anthropocentric approach, has lost its essence, that ought to be based on the concept of ecological sustainability. This leads me to formulate the hypothesis that there might be a connection between the failure to correctly understand, interpret and promote sustainable development and the parallel widespread lack of effectiveness of international environmental law, which is often unable to deliver satisfactory results in terms of environmental protection.

24   Westerlund S, ‘Theory for Sustainable Development’ in Bugge HC and Voigt C (eds), Sustainable Development in International and National Law (Groningen, 2008) 47 ff, 52.

  Revising International Environmental Law  281 D.  Applying the Paradigm of Ecological Sustainability for the Revision of International Environmental Law The hypothesis made above that there might be a connection between the failure to correctly understand, interpret and promote sustainable development and the parallel widespread lack of environmental effectiveness of international environmental law should be now analyzed and tested. In this respect, the analysis should start from the verification of whether the two situations have really something in common. In this sense, it seems to me that the similarity and connection between the two cases may be found in the failure to recognize an adequate role of the already analyzed concept of ecological sustainability in both contexts. In the first case, in fact, the failure to recognize the core role of ecological sustainability within the concept of sustainable development has brought a marginalization of the environmental dimension in the framework of such a concept, which has turned into its failure to contribute to the promotion of a high level of environmental protection. Quite similarly, in the second case, it may be argued that the emergence of a diffuse lack of environmental effectiveness with respect to many international environmental treaties has been caused by the absence of a reference guiding paradigm, such as the concept of ecological sustainability, in the definition, interpretation and application of the said agreements. Therefore, if one tries to assess the environmental effectiveness of most environmental treaties in the light of the principle of ecological sustainability, the conclusion that international environmental law is often not effective in pursuing and reaching its environmental goals, insofar as it is not adequately grounded in a solid ecological sustainability basis, will be probably reached in the majority of cases. This leads me to the conclusion that, in order to increase the environmental effectiveness of the multilateral environmental agreements, the ‘ecological ignorance’ of international environmental law must be addressed and overcome. Such an ‘ecological ignorance’ essentially derives from the failure to ground the development and implementation of the corpus of law devoted to environmental protection on the ecological sustainability concept. With this reasoning in mind, I can now propose a series of final con­ siderations, before moving to section III of the present contribution to discuss the concrete application of the concept of ecological sustainability as the new paradigm to be used in order to improve the environmental effectiveness of the climate change legislation, which is considered here as a paramount example of a specific sector in the framework of inter­national environmental law. In this respect, my final considerations may be summarized as follows:

282  Massimiliano Montini 1)   International environmental law is characterized by a widespread lack of effectiveness, which is mostly related to the failure to achieve ‘environmental effectiveness’, which is the capacity to achieve environmental protection objectives. 2)  In order to improve its ‘environmental effectiveness’, the adoption of a new grounding paradigm for international environmental law is needed. Such a paradigm should guide the interpretation and enforcement of the existing legislation, as well as the development of the new environmental legislation. 3)  The ecological core of sustainable development should be adequately recognized. As argued by Bosselmann, ‘it is crucial to realise the ecological core of the concept of sustainable development. Not realising it means that social, economic and environmental interests ever know where to go. There is only ecological sustainable development or no sustainable development at all’.25 4)   There is a clear link between sustainable development, ecological sustainability and environmental law. As highlighted by Westerlund, ‘sustainable development cannot take place without ecological sustainability, which in turn is related to environmental quality and natural resources’. Moreover, law needs to be made more sustainable, both in its definition and its application, since ‘unless law is made sustainable, it protects unsustainable conduct’.26 5)  The new ecological sustainability paradigm should constitute a basic reference rule, which ought to represent an environmental Grundnorm. Such a Grundnorm should ‘underpin and guide the interpretation of existing and the creation of new laws’.27 In other words, it should become the paradigm for creating new environmental legislation, as well as for revising and interpreting the existing environmental law provisions. 6)  A complete revision of the existing international environmental law is necessary, in order to promote its increased environmental effectiveness. In the absence of that, all the possible fine-tuning of existing institutions, instruments and issues, such as for instance the improvement of the international institutional setting (eg the never-ending UNEP’s reform) as well as the reorganization of the role and functioning of the market based mechanisms within the environmental law context, will not deliver any significant positive result.

  Bosselmann K (n 11), 53.   Westerlund S (n 23) 52–54. 27  Bosselmann K, ‘Grounding the Rule of Law’, in Voigt C (ed), Rule of Law for Nature (Cambridge, CUP, 2013) 83. 25 26

  Revising International Environmental Law  283 III.  REVISING ENVIRONMENTAL LAW THROUGH THE PARADIGM OF ECOLOGICAL SUSTAINABILITY: THE CASE OF CLIMATE CHANGE

I concluded in section II that in order to increase the environmental effectiveness of international environmental law, this branch of law should be developed, interpreted and applied in the light of the ecological sustain­ ability paradigm. In practical terms, such a revision should be grounded on the duty to protect and restore the integrity of the eco-systems, which support life on the planet. In this sense, the climate change sector represents an excellent example of an area which should be completely revised in the light of the paradigm of ecological sustainability, in order to promote an improvement of its environmental effectiveness. The climate change sector has greatly grown over the last two decades and nowadays represents one of the most important areas within the environmental law field. New policy and legislation in the climate change sector has developed in the last 20 years, in particular through some innovative legal instruments and mechanisms, which are sometimes being tested for the first time in this crucial area. Their application has sometimes raised some concrete questions about their overall ecological sustainability. There is in fact more than one doubt in many specific cases about the effective contribution of the climate change legislation to the fulfilment of the environmental principles underpinning the 1992 Framework Convention on Climate Change, as well as the related 1997 Kyoto Protocol. Moreover, if one looks at the recent trends emerging from the international negotiations focused on the shaping of the post-2012 legal framework, as well as at the development of climate change legislation at the State level and within regional organizations, such as the European Union, there is often the perception that many instruments established under the climate change legislation do not really promote either environmental protection objectives or ecological sustainability goals. On this basis, some specific examples will be provided, starting with a short analysis of the flexibility mechanisms foreseen by the Kyoto Protocol. To this effect, one may firstly look at the ecological sustainability of the Clean Development Mechanism (CDM), which since its establishment has been quite a successful instrument relied upon by the Parties in order to partially meet their emission reduction commitments under the Kyoto Protocol. The CDM is a project-based flexibility mechanism, which aims at promoting cost effective reductions in greenhouse gas emissions through the performance of projects in countries not bound by any reduction obligation. There is an evident risk that the realization of CDM projects in developing countries does not contribute to achieving national or

284  Massimiliano Montini local sustainable development of the hosting country. The drafters of the rules on the functioning of the CDM projects have always been aware of such a risk. In fact, it is prescribed that CDM projects must fulfil inter alia appropriate national sustainable development criteria, to be defined by the Party receiving the international investments related to the CDM projects. In this respect, however, no official and binding guidance was ever adopted by the Conference of the Parties of the Kyoto Protocol. Therefore, the only guidance for potential CDM host countries came from the guidelines issued by UNEP, which contain a set of general and basic sustainable development criteria for CDM project screening, grouped around the traditional three pillars of sustainable development.28 Such criteria however are not binding at all on the Parties. As a consequence, despite the positive duty to establish national sustainable development criteria, there is no guarantee that the hosting Party really aims at the objective of ecological sustainability when drafting such criteria. Moreover, no specific monitoring duties on the respect of such national criteria are requested to the national authorities of the Parties. Therefore, there is a serious and concrete risk that the performance of CDM projects finally does not help in promoting national or local ecological sustainability in the hosting country. Quite the contrary, there might be a paradoxical effect, related to the promotion of a race to the bottom between competing countries, which may decide not to give much import­ ance to the prescribed national sustainability criteria, in order to attract more international investments.29 Different kinds of concerns are also raised with regard to the other most relevant flexibility mechanism foreseen by the Kyoto Protocol, namely emissions trading. Such an instrument is a trading scheme, which enables countries to buy and sell emission credits, so as to promote a cost effective reduction of greenhouse gas emissions. With regard to this scheme, the international practice in the last few years has shown that the trading regime has evolved as a pure financial market, which operates following traditional financial rules and behaviours, while there is a tendency to forget the underpinning environmental dimension objective of contributing to CO2 reductions. Moreover, differently from what happens with regard to the CDM, the emissions trading scheme does not foresee specific sustainability criteria to be respected by the trading partners. Therefore, there is no way to monitor or guarantee that ecological sustainability is promoted and achieved in the functioning of the emissions trading market.   See UNEP, CDM Sustainable Development Impacts, 2004.   Montini M, ‘Sustainable Development within the Climate Change Regime’ in Bugge HC and Voigt C (eds), Sustainable Development in International and National Law (Groningen, 2008) 523 ff. 28 29

  Revising International Environmental Law  285 The same is true also with regard to the European Union Emission Trading Scheme, the so-called EU-ETS, which is based on the duty of the industrial sector to contribute to the CO2 reductions through the compulsory participation to a ‘cap and trade’ system.30 Within such a system, each relevant industrial installation is given a maximum quota of allowed CO2 emissions and trading is enabled among the participating installations with the aim of helping them to reach their target by buying or selling quotas to the other participants. Unfortunately, within such a context there is no obligation to fulfil any sustainability criteria. This is certainly a major shortcoming of the EU-ETS scheme, which should be addressed and overcome. This could be done, for instance, by imposing the respect of specific sustainability criteria to the installations subject to the EU-ETS regime, possibly combined with a ‘sustainability’ certification or labelling of the traded allowances. An example in this sense might come from the experience gained in the biofuels sector. This is an area which has boomed in the last few years, due to the combined pressure deriving from the duty to reduce greenhouse gas emissions, linked with the needs deriving from the current energy crisis, which calls for an increased production of energy from renewable sources. In this field, in fact, the European Union has set certain specific sustainability criteria, which need to be fulfilled during the production of biofuels, irrespective of the fact that the relevant activities take place within or outside the European territory. The promotion of biofuels by the EU is linked to the general provision of EU climate change policy and law which prescribes a minimum 10 per cent contribution that the biofuels ought to give by 2020 with respect to the total quantity of fuels used in the transport sector.31 This represents a positive application of the ecological sustainability paradigm. However, it remains to be seen whether such a system will effectively manage to promote ecological sustainability in concrete terms. In fact, although the sustainability criteria are meant to guarantee against the negative spill-over effects caused by the biofuels production, it could be reasoned whether the biofuels as such are a proper solution in terms of overall ecological sustainability. This is due to the fact that, although they may be a positive instrument to contribute to the fight against climate change, their production might entail severe environmental consequences, which may eventually lead to their negative balance in sustainability terms. 30  EC Directive 2003/87 of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/ EC, OJ L275/32 of 25.10.2003, as amended by EU Directive 2009/29 of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, OJ 140/63 of 5.6.2009. 31  EU Directive 2009/28 of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ 140/63 of 5.6.2009.

286  Massimiliano Montini Another interesting example of a new instrument which has been developed at international level in order to deal in a more effective way with the climate change challenge, and which can be analyzed with reference to its ecological sustainability performance, is represented by carbon capture and storage (CCS). The CCS technology enables the possibility of the sequestration and permanent storage of the CO2 in underground geological formations which should be safe against the risk of leakage over time. Such a technology is not regulated under international law. However, in the last few years it has been regulated by some of the Parties to the Framework Climate Change Convention and the Kyoto Protocol. In this sense, the most interesting legal regime for the regulation of such a technology is probably represented by the 2009 EU Directive on CCS.32 The major problem with the development of such a technology is, however, not so much related to the risk of leakage, but rather to the necessity to make sure that the authorized CCS installations are ultimately operating in a sustainable way. In this sense, the national authorities which are in charge of issuing the authorizations for the construction and operation of CCS installations should assess the ecological sustainability of the plants or at least make sure that they do not have negative effects on the overall sustainability of the territories where they are located. In fact, the existence of specific risks related to the deployment of such technology, in connection with the questions about its high cost, raise several doubts about the environmental effectiveness of such an instrument. Two of them deserve specific attention. Firstly, CCS projects may not be so beneficial in terms of greenhouse gas reductions, if the energy costs of collecting and managing greenhouse gas emissions, as well as the possible costs related to transport, are effectively considered and internalized. Indeed, in this case, the overall balance of the greenhouse gas emissions related to the development of CCS installations may even be negative. Secondly, the construction and operation of CCS plants, which involves complex activities such as the capture, transport and storage of CO2, may have relevant negative side-effects in terms of land planning and management. Ideally, therefore, such effects should be subject to a preventive evaluation of their negative consequences against the expected benefits in terms of CO2 reduction, in order to assess their overall ecological sustainability, which is however not necessarily the case under the present EU legal regime.33 32   EU Directive 2009/31of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, OJ 140/14 of 5.6.2009. 33   On the issue of balancing climate change mitigation and environmental protection interests, see Montini M and Orlando E, ‘Balancing Climate Change Mitigation and Environmental Protection Interests in the EU Directive on Carbon Capture and Storage’ (2012) Climate Law 165 ff.

  Revising International Environmental Law  287 In sum, it may be said that the few examples mentioned above with regard to the evolution of the climate change legislative framework, make clear that there is a concrete risk that this area of environmental law develops in quite an unsustainable way. Therefore, this is a sector where there should be a change of perspective and a coherent move towards a consistent reference to ecological sustainability as the proper paradigm for the development of new legislation as well as, maybe more importantly, for the interpretation and enforcement of the existing environmental legislation.

14 Land Degradation as a Common Concern of Humankind BEN BOER

I.  THE RIO+20 SUMMIT, THE FUTURE OF ENVIRONMENTAL PROTECTION AND THE COMMON CONCERN OF HUMANKIND

T

HE RIO+20 CONFERENCE, which took place in June 2012, involved an intergovernmental meeting of many of the world’s heads of State and ministers of environment and their entourage, as well as a myriad of meetings of non-government organizations and multilateral environmental convention secretariats, attracting an estimated 50,000 people. The official intergovernmental meeting issued a statement entitled The Future We Want.1 This statement renews the commitment of global governments to sustainable development, seeking to ‘ensure the promotion of an economically, socially and environmentally sustainable future for our planet and for present and future generations’ (paragraph 1). In some 50 pages, the document sets out a wide range of concerns in relation to the mainstreaming of sustainable development, ‘integrating economic, social and environmental aspects and recognizing their interlinkages, so as to achieve sustainable development in all its dimensions’ (paragraph 3). While impressive for its rhetoric, as an outcome document from a major global conference costing many millions of dollars, it is unlikely to have anywhere near the long-term effect of the Rio Declaration on Environment and Development, Agenda 21 and the three Rio conventions on climate, bio­ diversity and desertification resulting from the original Summit in 1992. While the above commitments are reaffirmed in the substance of the statement, the title of its introductory paragraphs, ‘Our Common Vision’, has an aspirational quality which might be in danger of being interpreted merely as ‘Our Lowest Common Denominator’. When looked at through the particular lens of the development of international environmental law   The Future We Want, Rio+20 Summit on Sustainable Development, 22 June 2012.

1

290  Ben Boer over the next few years, we can see that there is a recognition of the need to more vigorously implement existing international legal instruments, but falls short on specific commitments to actually achieve that aim. It may well be that, from a legal point of view, the results of some of the non-governmental and United Nations Environment Programme (UNEP)sponsored environmental law conferences that took place in various locations in Rio may have as influential an effect as the outcome of the official intergovernmental conference. The first of these conferences was specifically designed to provide input to the Rio+20 Conference,2 and was based at a major conference in Limoges in October 2011.3 The second conference was also organized by consortium of interests and was designed to offer a range of views on the future of environmental law.4 The third conference, conducted by the UNEP in association with a range of global and national organizations, was more specifically directed to the role of judges, environmental auditors and prosecutors. The latter conference produced a major statement on the role of these actors.5 This chapter proceeds in part in the light of the Rio+20 Conference, focusing on one particular area, land degradation, to illustrate certain characteristics of the development of international environmental law. It argues that land degradation should attract a much greater level of attention in the global debates on environment protection and the achievement of sustainable development. It refers to the current state of land degradation and desertification around the world and the consequences of these phenomena on both people and the environment. One focus of the chapter is on the growth of the concept of a ‘common concern of humanity’. It is argued that the concept of common concern has become fundamental to modern international environmental law, and that it can be found, in various formulations, in the more important environmental conventions developed over the past 60 years. However, it is submitted that there is a need to look more closely at the characteristics of the concept of common concern in order to ascertain the threshold at which an environmental issue converts from a matter of merely national or regional concern to one that is of global and thus by implication common concern. The chapter also briefly looks at the idea of ‘common goods’ 2   See World Meeting of Environmental Lawyers: A Rio+20 Side Event 15, 16 and 17 June 2012, ; One of the products of that endeavour is a publication – Legal Instruments for the Implementation of Sustainable Development, Ediçáo FGV Direito Rio, 2012. 3   Rio+20 Conference, International Centre of Comparative Environmental Law, University of Limoges, October 2011. 4   Among others, the IUCN World Commission on Environmental Law and several associations of judges of Brazil. 5   The statement was entitled Rio+20 Declaration on Justice and Law for Environmental Sustainability; it passed by acclamation at the Supreme Court of Rio de Janeiro on 20 June 2012; see summary report of the World Congress at .

  Land Degradation as a Common Concern  291 and the question of the ‘common good’, and the relationship of these two with the concept of common concern. The chapter uses the field of land degradation and its subset of desertification to explore the concept of common concern. It compares the three Rio conventions, the United Nations Framework Convention on Climate Change (UNFCCC), the Convention on Biological Diversity (CBD) and the Convention to Combat Desertification (CCD),6 and notes that the UNFCCC and the CBD both include the concept of common concern of humankind within their preambles, but that the drafters of the CCD chose not to include this concept as such. It goes on to explore the reasons for this apparently differential treatment. A question that may be asked is whether the characterization of an issue as something of common concern makes any difference in enhancing the effectiveness of international and national environmental law, since, in the light of the fact that on all relevant indicators, we are going backwards rather than forwards on virtually all environmental issues.7 The chapter concludes that the common concern of humankind is a useful element of international and national environmental law, and that, especially when combined with newly emerging environmental law principles,8 it may encourage more effective implementation of that law. Further, it concludes that the fields of land degradation and desertification have clearly become part of the common concern of humankind, and that future MEAs focused on these issues should explicitly recognize that this is the case. II.  THE COMMON GOOD, COMMON GOODS AND COMMON CONCERN

John Rawls defined the ‘common good’ as ‘certain general conditions that are . . . equally to everyone’s advantage’.9 We can see that this concept can 6   The Climate Change Convention and the Biodiversity Convention were opened for signature at the Earth Summit in June 1992. The initial concept of the UNCCD was referred to in Agenda 21, and it was resolved to negotiate the Convention during the 1992 Rio Conference, but was not opened for signature until 1994. It came into force in 1996. 7   For example, Global Environment Outlook 5 (GEO5); this report assessed 90 of the most important environmental goals and objectives and found that significant progress had only been made in four of them. See Progress Towards Goals . 8   For example the principle of non-regression (stand-still, or no backsliding, in environmental law), and the principle of in dubio pro natura. These are not further explored here, but see Prieur M, ‘De L’urgente Nécessité De Reconnaître Le Principe De “Non Régression” En Droit De L’Environnement’ (2011) IUCN Academy of Environmental Law E-Journal 26 ff; Ahteensuun M, ‘In Dubio Pro Natura? A Philosophical Analysis of the Precautionary Principle in Environmental and Health Risk Governance’, Dept of Philosophy, University of Turku, Finland, 2008, at . 9   Rawls J, A Theory of Justice (Oxford, 1972).

292  Ben Boer apply both to the maintenance of social systems and institutions, as well as to the idea of a clean and healthy environment.10 It might also be narrowed to define common goods in the plural in a more particularly physical sense, and to apply it equally at both international level and national level. Thus the atmosphere, the waters of rivers and streams, the land and soil can be regarded as common goods. Thus we can understand the idea of the common good, in its physical expression, as common goods, as a basis for the exploration of environmental protection as global common goods or, perhaps more desirably, as global or planetary commons.11 The book, The Global Commons: A Regime Analysis was among the first to put forward a definitive analysis of which international agreements represented the protection of the global commons.12 More broadly, the book Global Public Goods: International Cooperation in the 21st Century,13 investigates the concept of global public goods in terms of its usefulness in describing and analyzing a range of global challenges, as well as whether feasible policy options and strategies can be found ‘that would apply across the board to ensure a more reliable supply of global public goods – from market efficiency to equity, health, environmental sustainability and peace. Without these global public goods, human security and development will be elusive’.14 The relationship between common concern and common goods in the context of international environmental law is important, as the notion of common goods might well be helpful in ascertaining the point at which a particular environmental issue becomes a matter of common concern. An illustration of this conversion of an issue of domestic or regional concern to one of international concern is that of land and its substantive element of soil. Soil scientists have long argued that soil is fundamental both to the conservation of terrestrial biodiversity as well as to human 10   ‘The common good . . . consists primarily of having the social systems, institutions, and environments on which we all depend work in a manner that benefits all people. Examples of particular common goods or parts of the common good include an accessible and affordable public health care system, an effective system of public safety and security, peace among the nations of the world, a just legal and political system, and unpolluted natural environment, and a flourishing economic system. Because such systems, institutions, and environments have such a powerful impact on the well-being of members of a society, it is no surprise that virtually every social problem in one way or another is linked to how well these systems and institutions are functioning.’ Velasquez M, Andre C, Shanks T, SJ, and Meyer MJ, ‘The Common Good’, Markkula Center for Applied Ethics, Santa Clara University, at . 11   The global commons idea was discussed, inter alia, by the International Law Commission, in the context of its reference ‘International Liability For Injurious Consequences Arising out of Acts Not Prohibited By International Law’, see United Nations, Yearbook of International Law Commission (New York/Geneva, 1994) 164; see also Bosselmann K, The Principle of Sustainability (Aldershot/Burlington, 2009) 162. 12   Vogler R, The Global Commons: A Regime Analysis (Chichester, 1995). 13   Kaul I, Grunberg I and Stern MA, Global Public Goods: International Cooperation in the 21st Century, (New York, 1999). 14   Ibid, xxii–xxiii.

  Land Degradation as a Common Concern  293 welfare. Policy makers and legislators have become more cognizant in recent years of the centrality of healthy soils as the basis of food and water security in order to feed the world’s people, avoid land grabbing,15 reduce mass forced migrations and the attendant economic and political concerns arising from these issues. It has thus become easier to argue that land and soil should be regarded in international law as a part of global common goods, in much the same way as the atmosphere and biodiversity can be regarded as common goods. It is of course difficult to treat climate change, biodiversity and land degradation separately, given that they are linked in a variety of ways. For example on climate change adaptation: ‘[T]he Rio Conventions offer a range of tools, services and expertise that assist vulnerable countries and communities in enabling effective adaptation and achieving sustainable development.’16 In accepting that land and soil can indeed be regarded in the same light, it is argued here that there is a need for land degradation to be regarded with the same degree of seriousness as the increasing loss of biological diversity and the continuing effects of climate change. It follows that the question of land degradation and desertification should be seen more explicitly as a common concern of humanity. If that is so, this provides a solid foundation for global policy makers to take more concrete and integrated steps to address land degradation and desertification. We shall see that, from the point of view of the development of formal instruments, together with recent draft proposals, we are already someway along that path. III.  THE DEVELOPMENT OF THE CONCEPT OF COMMON CONCERN OF HUMANITY

This section explores the characteristics of the common concern of humanity in more general terms. A number of writers have traversed this field, and the following provides a brief overview of their analyses. Alexandre Kiss canvassed development of the area of human rights and fundamental freedoms, as set out in the 1945 United Nations Charter and the 1948 Universal Declaration of Human Rights as constituting ‘a step of paramount importance in the development of the concept of an inter­ national community’.17 He went on to discuss the protection of the human 15   For an exploration of the issue of land grabbing and its implications for biodiversity, see Durousseau M, ‘Quelle Stratégie pour la diversité biologique et la protection fonciere des espaces naturels et ruraux de la planète?’ (‘What should be the strategy for biological diversity and natural and rural land protection of the planet?’), in Legal Instruments for the Implementation of Sustainable Development (Rio de Janeiro, 2012) 239 ff. 16   See CBD, UNCCD and UNFCCC, The Rio Conventions: Action on Adaptation, 2012. 17   Kiss A, ‘Globalization and the Common Concern of Humanity’ in Kiss A, Shelton D and Ishibashi K (eds), Economic Globalization and Compliance with International Environmental Agreements (The Hague, 2003) 3 ff, 4.

294  Ben Boer environment as another universal value of humanity, which he claimed has been recognized as a part of the common concern of humanity.18 He then argued that: In principle, a proclamation that safeguarding the global environment or one of its components is a matter of common concern to humanity should mean that such components, due to their global importance and the consequences for all their potential degradation or destruction, cannot be considered as solely under the exclusive and discretionary authority of states.

Thus, he argued, States should be considered trustees charged with the protection and conservation of environmental components fully within their territory and jurisdiction. He maintained that the situation is analogous to the law respecting fundamental rights and freedoms of individuals, which obliges States to ensure that all persons within the limits of the jurisdiction enjoy such rights and liberties.19 Dinah Shelton, in her 2009 tribute to Alexandre Kiss, states: Environmental issues are common ones because they often cannot be managed effectively by national or regional efforts; moreover, environmental benefits and burdens are shared by all persons. The climate, the stratospheric ozone layer, the oceans, and indeed the entire physical world form an interdependent ecological system, much of which can only be protected at the global level, making it a common concern for all humanity. The modalities of protection and preservation are formulated in law and policy and enforced by national and international institutions.20

Importantly, Shelton identifies the common concern of humanity as a very broad concept, stating that as a term in international law it is notable for what it does not include, namely a reference to States as such, but rather she argues that it is the concerns of humanity as a whole, the multitude of individuals, which is the focus. She contrasts this with the definition of jus cogens as the norm recognized and accepted by ‘the international commun­ ity of states as a whole’.21 Jutta Brunnée explores the development of the concept of common areas, common heritage and common concern22 and argues: ‘The concept of common area and common heritage are both inherently limited by the focus on certain geographic areas and resources. The notion of common concern is conceptually more open ended. Indeed, it has been suggested   Ibid, 4.   Ibid, 8. 20   Shelton D, ‘The Common Concern of Humanity’ (2009) Iustum Aequum Salutare 33 ff, 35. 21   Ibid, 33 (emphasis added), referring to Article 53 of the Vienna Convention on the Law of Treaties. 22   Nico Schrijver also traced the development of the phrase common heritage of mankind to the concept of common concern. Schrijver N, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge, 1997). 18 19

  Land Degradation as a Common Concern  295 that the “global environment” is a common concern of humanity”’.23 She points to Principle Seven of the Rio Declaration on Environment and Development in relation to its call for States to ‘cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’. Judge Weeramantry, in the Danube Dam Case, included a reflection on the development of international law in the environmental field, stating: We have entered an era . . . in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare . . . international environmental law will need to proceed beyond weighing . . . rights and obligations . . . within a closed compartment of individual state interest, unrelated to the global concerns of humanity as a whole. 24

IV.  COMMON CONCERN OF HUMANITY IN MULTILATERAL ENVIRONMENTAL AGREEMENTS

The development of the concept of common concern of humanity in multilateral environmental agreements and other agreements focused on the conservation of natural resources can be traced over the past century. This section provides an account of the various legal formulations on the path to the development of the concept, and provides a table containing a selection of various formulations of the idea of common concern.25 MEA

‘Common Concern’ Formulation

1946 International Convention for the Regulation of Whaling

‘Recognizing the interest of the world in safeguarding for future generations the great natural resources represented by the whale stocks.’ ‘Recognizing that it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress.’ (Preamble)

23   Brunnée J, ‘Common Areas, Common Heritage and Common Concern’ in Bodansky D, Brunnée J and Hey E, (eds), The Oxford Handbook of International Environmental Law (Oxford, 2007) 550 ff, 564; she references Article 3 of the IUCN Draft Covenant on Environment and Sustainable Development in relation to the global environment as a common concern of humanity. See also Hey E, ‘Global Environmental Law: Common Interests and the (Re) Constitution of Public Space’(2009) Iustum Aequum Salutare 41 ff, 43. 24  ICJ, Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7 (reduced quote taken from Brunnée J (n 23) 551). 25   This list is based in part on the discussion in Shelton D (n 20).

296  Ben Boer MEA

‘Common Concern’ Formulation

1959 Antarctic Treaty

‘. . . it is in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes’. (Preamble)

1980 Convention on the Conservation of Antarctic Marine Living Resources

‘. . . interest of all mankind to preserve the water surrounding the Antarctic continent for peaceful purposes only’. (Preamble)

1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty

‘Convinced that the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole.’ (Preamble)

1971 Convention on Wetlands of International Importance

‘Recognizing that waterfowl in their seasonal migrations may transcend frontiers and so should be regarded as an international resource.’ (Preamble)

1972 Convention on the Conservation of World Cultural and Natural Heritage

‘Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong, Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole, Considering that, in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance which, although not taking the place of action by the State concerned, will serve as an efficient complement thereto.’ (Preamble)

1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora

‘Recognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come.’

  Land Degradation as a Common Concern  297 MEA

‘Common Concern’ Formulation

1992 Framework Convention on Climate Change

‘Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind.”

1992 Convention on Biological Diversity

‘Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere, Affirming that the conservation of biological diversity is a common concern of humankind.’ (Preamble)

1994 Convention to Combat Desertification

‘Affirming that human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought, Reflecting the urgent concern of the international community, including States and international organizations, about the adverse impacts of desertification and drought, Acknowledging that desertification and drought are problems of global dimension in that they affect all regions of the world and that joint action of the international community is needed to combat desertification and/ or mitigate the effects of drought.’ (Preamble)

While the language of ‘common concern of humanity’ and its alternative ‘common concern of humankind’ found in some MEAs is of recent origin, the concept has been used in fields other than the environment in a variety of international instruments, most notably in the area of human rights. For example, the Martens Clause in the preamble to the 1907 Hague Convention (VI), in indicating the sources of principles of the law of nations, refers to ‘the laws of humanity, and the dictates of public conscience’.26 It is only the UNFCCC and the CBD which have explicitly used the term ‘common concern of humankind’. While the language of common concern found its way into the UNFCCC and the CBD in 1992, the concept has been expressed in a variety of ways in international conventions concerning the environment and natural resources some decades before that, as indicated in the table above. However, the various writers on inter­ national environmental law generally seem to agree that the formulations are more or less equivalent to the concept of common concern. The fact that they generally use the words ‘of humanity’ rather than ‘of humankind’ seems to be a distinction without a difference. It does appear to be 26   See Shelton D (n 20) 33; see also IUCN Resolution 2.97 2.97 ‘A Marten’s Clause for environmental Protection’, .

298  Ben Boer clear that each of the formulations more or less conform to Shelton’s characterization of environmental issues as common ones, but the question remains: what constitutes the threshold at which an environmental or natural resource issue is raised to the level of a ‘common concern of humanity’? Shelton explains some of the criteria in treaties which embody the concept of common concern of humanity: The various treaties that present a common interest have much in common. They do not establish explicit rules of conduct, but do limit states’ freedom of action, even when other states’ rights are not directly implicated, widening the scope of erga omnes obligations and imposing a duty to cooperate, a duty that has shown itself to be enforceable.27

Perhaps the most sanguine statement on the question of common concern in relation to international environmental law is from Hunter, Salzman and Zaelke: Although the principle of common concern was first used in the environmental context in the 1992 Biodiversity and Climate Change Conventions, all international environmental treaties and instruments arguably reflect a growing acceptance that protecting the environment and achieving sustainable development generally are ‘common concerns of humanity’.28

They go on to point out that Article 3 of the IUCN Draft Covenant on Environment and Development29 includes a statement that the ‘global environment is a common concern of humanity’. The Draft Covenant’s commentary30 on Article 3 justifies the common concern principle on the basis of the scientific reality that harm to the environment resulting from human activities (e.g., depletion of the stratospheric ozone layer, climate modification, and the erosion of biological diversity) adversely affect all of humanity . . . This implies acceptance of both the right and the duty of the international community as a whole to have concern for the global environment.

Hunter et al further state that the principle of common concern ‘can thus be seen in creative tension with the principle of State sovereignty’ and note that prior to the negotiations of the Biodiversity Convention, there was an assumption by States that they had complete control and discretion about the biodiversity within their boundaries.31 Looked at from an ecosystemic perspective, it is possible to argue that almost any action by States or by the private sector in relation to the exploitation of natural resources within the boundaries of a particular   Shelton D (n 20) 39.   Hunter D, Salzman J and Zaelke D, International Environmental Law and Policy, 4th edn (New York, 2011) 459. 29   IUCN Draft Covenant on Environment and Development, 3rd Rev, 2010. 30   The Commentary on the Draft Covenant was written by Dinah Shelton. 31   Hunter D, Salzman J and Zaelke D (n 28) 490. 27 28

  Land Degradation as a Common Concern  299 State can have effects beyond the national jurisdiction, even though at first blush this would not appear to be the case. For example, by deciding to allow mining, whether it is of coal or rare earths, the ‘downstream’ effects of the use of the resource will result in impacts, some direct and some indirect, in other jurisdictions, or in areas beyond national jurisdiction. In this sense, the principles of State sovereignty over natural resources and State responsibility, as articulated in Rio Principle 2,32 can be seen to be in conflict. As international environmental law develops and is more successfully implemented at national level, increasingly the principle of State responsibility can be expected to override the principle of sovereignty in particular cases. V.  LEGAL SUBSTANCE OF COMMON CONCERN

Several writers have considered the question of the legal content of the concept of common concern of humanity. For example, Birnie, Redgwell and Boyle state: If ‘common concern’ is neither common property nor common heritage, and if it entails a reaffirmation of the existing sovereignty of states over their own resources, what legal content, if any, does this concept have? Its main impact appears to be that it gives the international community of states both a legitimate interest in resources of global significance and a common responsibility to assist in their sustainable development. Moreover, insofar as states continue to enjoy sovereignty over natural resources and the freedom to determine how they will be used, this sovereignty is not unlimited or absolute, but must now be exercised within the confines of the global responsibilities set out principally in the Climate Change and Biological Diversity Conventions, and also in the Rio Declaration and other relevant instruments.33

Dinah Shelton also looks at the legal implications of recognizing the environment as a common concern. She maintains that the ‘the notion of common concern leads to the creation of a legal system whose rules impose duties on society as a whole and on each individual member of the community’. As with the other writers, she distinguishes between common heritage and common concern, arguing that common concern is a general concept which does not imply specific rules and obligations; rather, it establishes the general basis for the concerned community to act. She also 32   Rio Declaration on Environment and Development 1992, Principle 2 asserts: ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’ 33   Birnie P, Redgwell C and Boyle A, International Law and the Environment, 3rd edn (Oxford/ New York, 2009) 130.

300  Ben Boer posits that the right and duty to act in matters of common concern must be balanced with respect for national sovereignty.34 However, she goes further than the other writers, in arguing that ‘respect for human rights, economic development and environmental protection have been unified in the concept of sustainable development as a common concern of humanity’.35 VI.  LAND DEGRADATION AND DESERTIFICATION

Turning now to the examples of land degradation and desertification: these issues have been of broad international concern since at least the 1970s. The 1992 Rio Conference on Environment and Development generated a good deal of discussion on the question of deforestation, land degradation and desertification. Agenda 21 includes several chapters which dwelt on various aspects of land, including integrated land use planning and management (Chapter 10) and deforestation (Chapter 12) as well as combating desertification and drought (Chapter 12). Since 1992, various attempts have been made to place forests in the frame of substantive international environmental law, but to date, only non-binding principles have been elaborated.36 Moves to address the question of desertification were more successful, with a recommendation in Agenda 21 for the negotiation of a multilateral environmental agreement on desertification, particularly in Africa. Birnie, Redgwell and Boyle note that States were anxious to avoid conflict and overlap with existing conventions, such as those on climate change and biodiversity. Problems also arose concerning the conclusion and status of specific regional instruments which it was agreed should be an integral part of the convention.37

They note that while the Convention has been in force for some time, ‘political support remains weak notwithstanding the large number of parties’.38 VII.  LAND DEGRADATION AND DESERTIFICATION AS A COMMON CONCERN OF HUMANITY

As indicated in the table above, while there is no explicit mention of ‘common concern’ in the preamble of the UNCCD, the question is whether   Shelton D (n 20) 37–38.   Ibid, 39. 36   1992 Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, A/ CONF.151/26 (Vol III); 2007 Non-Legally Binding Instrument on All Types of Forests. 37   Birnie P, Redgwell C and Boyle A (n 33) 692. 38   Ibid, 694. 34 35

  Land Degradation as a Common Concern  301 various paragraphs could be seen to summon sufficient gravity to amount to the same thing. The Convention begins: The Parties to this Convention, Affirming that human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought,

This reflects Principle 1 of the Rio Declaration,39 and clearly is not equivalent to common concern as such. The next relevant passage is: Reflecting the urgent concern of the international community, including States and international organizations, about the adverse impacts of desertification and drought,

Is ‘urgent concern of the international community’ the same as ‘common concern of humanity’? If one adopts Shelton’s analysis, then the phrases could be regarded as equivalent. However, looking more closely, given that the paragraph was formulated after the UNFCCC and the CBD were completed, the drafters could simply have adopted the same language, thus placing this third so-called Rio Convention on much the same footing as the previous two. The next relevant preambular paragraphs are: Aware that arid, semi-arid and dry sub-humid areas together account for a significant proportion of the Earth’s land area and are the habitat and source of livelihood for a large segment of its population, Acknowledging that desertification and drought are problems of global dimension in that they affect all regions of the world and that joint action of the international community is needed to combat desertification and/or mitigate the effects of drought . . .

Is the statement that the arid lands constitute a significant proportion of the terrestrial globe and acknowledgment that ‘desertification and drought are problems of global dimension’ equivalent to ‘common concern’? They certainly tend in this direction, but are not sufficiently explicit to be definitive. Was the reason that the concept of common concern was not specifically included in the preamble influenced by the idea that land and soil and the processes of their degradation were simply not regarded on the same level of concern as biodiversity and climate change? Or that the UNCCD, while universally subscribed, applies essentially only to drylands, even though they currently constitute some 41 per cent of the terrestrial globe? Or, as Birnie, Redgwell and Boyle indicate, in the early 1990s States regarded both desertification and deforestation as issues that fell ‘wholly within their national sovereignty’.40 Or was it a combination of these reasons? 39   Principle 1 states: ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ 40   Birnie P, Redgwell C and Boyle A (n 33) 692.

302  Ben Boer Certainly, over the past two decades since these conventions were drafted, there has been a growing awareness that land degradation on a global basis has increasingly devastating effects on millions of people, as well as on the natural environment. The causes of land degradation are both human and natural. The anthropogenic causes include over-­ cultivation, resulting in robbing the soil of its nutrients by overreaching its ecological carrying capacity, which are characterized as unsustainable land management practices. The physical manifestations of land degradation include deforestation, devegetation of grasslands, large-scale soil erosion, and decreasing water supplies. The effects of land degradation on people include widespread malnutrition, hunger and consequent starvation, forced migration both internally and across international borders, and loss of cultural heritage through the separation of people from their traditional lands. The tentative conclusion then is that the formulators of these provisions, being presumably fully aware of the way in which common concern is expressed in the latter conventions, chose consciously to place desertification, as a particular form of land degradation, at a lower level of ‘concern’ than that found in the other two Rio conventions. My task here is to make the case that land degradation, desertification and the effects of drought should indeed be regarded as of equal concern to that of climate change and biodiversity depletion and should be explicitly acknowledged as a common concern of humanity. I would argue that it is necessary to develop this area legally by two initiatives. The first is the formulation of a protocol or at least a new Annex to the UNCCD on the achievement of land degradation neutrality, also known as Zero Net Land Degradation (ZNLD).41 The second, in the longer term, is to make the case to go beyond the UNCCD to negotiate a global convention on the conservation and sustainable use of land and in particular, soil. Depending on where one begins, the task is an easy one or somewhat more difficult. If it is considered, as many have done in past, that land degradation is a purely national problem, or at most regional, then it might be summarily dismissed as a matter of common concern. However, if land degradation and desertification is indeed seen as a matter of urgent international concern, as it appears to be in the UNCCD, then what degree of concern is needed to bring it to the level of ‘common concern’? This is one way of formulating the question.

41   Zero Net Land Degradation: A Sustainable Development Goal for Rio+20, subtitled ‘To secure the contribution of our planet’s land and soil to sustainable development, including food security and poverty eradication’, UNCCD Secretariat Policy Brief, May 2012, available at .

  Land Degradation as a Common Concern  303 If we take the propositions of Alexandre Kiss and Dinah Shelton42 that the protection of the environment is a part of the common concern of humanity, do we need to ask the further question whether the environment should continue to be compartmentalized into specific media, such as air, water, the marine envir­onment or land and soil, and the possible effects of the deterioration of those media? On what basis should we compartmentalize them, and accord some of them higher importance than others? Compartmentalization is difficult to maintain, given the increasing recognition of the close and inherent ecological links between land, air and water. If it is impossible to separate them, it would certainly seem to follow that every significant element of the environment is also part of the common concern. In the light of modern scientific information, it is not a major task to establish that land and soil constitute significant elements of the environment. Soil is the primary basis for all terrestrial biodiversity, and provides for the vast proportion of the global food supply.43 Land degradation is defined as reduction or loss of the biological or economic productivity and complexity of rainfed cropland, irrigated cropland, or range, pasture, forest and woodlands resulting from land uses or from a process or combination of processes, including processes arising from human activities and habitation patterns, such as: (i) soil erosion caused by wind and/or water; (ii) deterioration of the physical, chemical and biological or economic properties of soil; and (iii) long-term loss of natural vegetation.44

Desertification is defined as ‘land degradation in arid, semi-arid and dry sub-humid areas resulting from various factors, including climatic variations and human activities’.45 It can be noted that soil scientists also regard desertification as taking place beyond arid, semi-arid, and dry sub-humid areas. Be that as it may, it argued here that the Desertification Convention was too narrowly conceived, given that land degradation not associated with desertification processes is also a very significant global issue, especially if industrial and agricultural land contamination, particularly from chemicals, is taken into account. The umbrella term often employed is ‘Drought, land degradation and drought’. These phenomena are seen to affect food security, water security and human security in general. In other words, they affect people in a very direct way; in the short term even more directly than the effects of the loss of biodiversity and the effects of climate   Kiss A (n 17) and Shelton D (n 20).   Boer BW and Hannam ID, ‘Legal Aspects of Sustainable Soils: International and National’ (2003) Review of European Community and International Environmental Law 149 ff, 149. 44   UNCCD Article 1, Definitions. 45   Ibid. 42 43

304  Ben Boer change. Several of the human impacts of these effects are now briefly canvassed, as a way of underlining the seriousness of the consequences of land degradation and desertification. VIII.  LAND DEGRADATION AND THE EFFECTS OF CLIMATE CHANGE

Global warming and other climate change events exacerbate land degradation through increased dryness, extreme events such as severe storms and floods and increased frequency and intensity of droughts. These processes will result in major crop losses, especially in some of the world’s poorest regions.46 Given the interlinkages of land degradation and climate change, the UNCCD has stated that it aims to address land degradation, desertification and drought in climate change negotiations and UNFCCC implementation processes pursuant to Article 8 of the UNCCD, which is focused on coordination with other conventions. Further, the UNFCCC Secretariat is actively examining the issue of agricultural soils and climate change.47 These developments underline the inextricable links between these conventions, bolstering the argument that land degradation and the effects of climate change must be regarded with the same level of seriousness. IX.  ENVIRONMENTAL REFUGEES: FORCED MIGRATION

Human-induced land degradation, as well as the effects of climate change, or more often a combination of the two, have forced large numbers of people to move from their traditionally occupied land to other land within the country (internally displaced persons48), or to cross borders in order to resettle in other countries (transboundary migration). Such people are referred to as ‘environmental refugees’ or, sometimes, as ‘survival migrants’.49 Three different types of environmental refugees have been identified. They include those displaced temporarily due to local dis­ ruption such as an avalanche or earthquake; those who migrate because environmental degradation has undermined their livelihood or poses unacceptable risks to health; and those who resettle because land degra  Zero Net Land Degradation Policy Brief (n 41) 14.  For example, ‘Enabling agriculture to contribute to climate change mitigation’ Submission by the Food and Agriculture Organization of the United Nations to the UNFCCC, September 2013. 48   See Kälin, W The Guiding Principles on Internal Displacement: Annotations, 2nd Edition, . 49   Morel M and Maes F, ‘From “Climate Refugees” to “Survival Migrants”: The Role of International Law in their Protection’, Proceedings International Symposium ‘Developing Countries Facing Global Warming: A Post-Kyoto Assessment’, Royal Academy for Overseas Sciences and the United Nations, Brussels, 12–13 June 2009, 183 ff. 46 47

  Land Degradation as a Common Concern  305 dation, desertification and drought have resulted in loss of land or because of other permanent and untenable changes in the habitat.50 While factors other than land degradation, such as political and religious/ethnic animosity play a role in some of these migrations, the fundamental issue remains that the sheer pressure of poverty and loss of livelihood, caused by the scarcity of non-degraded productive land, necessitates mass migration, and will do so into the foreseeable future. Furthermore, migration itself has created enormous hardship – more poverty, loss of identity, culture, and loss of access to food and water and, in a number of regions, loss of life. These matters of course raise fundamental issues of human rights.51 X.  WHICH OTHER ENVIRONMENTAL MEDIA SHOULD BE INCLUDED IN THE COMMON CONCERN OF HUMANKIND?

It remains to consider what other environmental and natural resource domains are still left out of this paradigm of common concern. Certainly, the forest biome and the world’s freshwaters might also be more closely considered under this umbrella. As summarized by Tim Stephens, Stephen McCaffrey52 argues that ‘freshwater resources should be considered the common heritage of humankind, given that they are as vital to human existence as other natural resources that have been classified as global commons and subject to international regulation’. Stephens continues: Given the growing proportion of the world’s population afflicted by water scarcity, McCaffrey’s argument that ‘the time has come to view fresh water in global terms’ to allocate water equitably among all peoples is more compelling than it has ever been. McCaffrey freely acknowledged that translating this perspective into legal form is in no way a straightforward task. Progress is possible, however, if there is acceptance at a conceptual level that the supply of freshwater resources is a common concern of humankind and should be considered in global terms, even if the operationalization of an objective to alleviate hydrological disadvantage will often need to be played out at a much more localised scale.53

If this argument applies to water, then equally it applies to land and soil. A similar case might be made in relation to the world’s remaining forests. The loss of vegetation cover, with its rich biodiversity, results in localized climate change and loss of ecosystemic resilience and stability, among 50  Jacobson J, ‘Environmental Refugees: a Yardstick of Habitability’ (1988) Bulletin of Science Technology Society 8(3) 257–58. 51   See further, McAdam J, Climate Change, Forced Migration, and International Law (Oxford, 2012). 52   McCaffrey SC, The Law of International Watercourses, 2nd edn (Oxford/New York, 2007) 168. 53   Stephens T, ‘Re-Imagining International Water Law’ (2011) Maryland Law Review Endnotes 20 ff.

306  Ben Boer other things. Forest ecosystems and cultivated ecosystems cover some 30 per cent and 24 per cent of global land respectively, but at earlier times more land was forested, and less land was cultivated. Forests provide ecosystem services, including water, that support both cultivated and natural ecosystems and provide habitats for species that pollinate plants and regulate pests in croplands and rangelands. An eventual binding instrument on forest conservation, still some way off, should, in the light of the arguments put forward here, quite clearly be regarded as a matter of common concern. XI.  RIO+20 COMMITMENT TO LAND AND SOIL

Paragraphs 205 to 209 of the Rio+20 statement The Future We Want54 focus on desertification, land degradation and drought. Even though the statement as a whole has no particular legal force, within the generalities of these paragraphs the foundation of more solid legal and policy prescriptions can be found. Paragraph 205 emphasizes the importance of good land management, including soil, and particularly recognizes its contribution ‘to economic growth, biodiversity, sustainable agriculture and food secur­ity, eradicating poverty, women’s empowerment, addressing climate change and improving water availability’. The statement, mimicking the preamble of the UNCCD itself, stresses that ‘desertification, land degradation, and drought are challenges of a global dimension and continue to pose serious challenges to the sustainable development of all countries, in particular developing countries’. In relation to the focus of this chapter, we can see that this sentence, read narrowly, does not take us much beyond the current scope of the UNCCD. If read more generously, it could be seen to raise the debate to a more universal, transboundary level, tantamount to affirming that land degradation is a matter of common concern. Within paragraphs 206 and 207 there is also language which calls for concrete action: paragraph 206 states in part ‘we will strive to achieve a land degradation neutral world in the context of sustainable development’. While the paragraph itself only refers to the need for finding the financial resources to achieve land degradation neutrality, paragraph 207 includes the commitment to ‘take coordinated action nationally, regionally and internationally, to monitor, globally, land degradation and restore degraded lands in arid, semi-arid and dry sub humid areas’. This phrase is somewhat ambiguous, but can also read as broadening the consideration of land degradation beyond the scope of the UNCCD.   See (n 1).

54

  Land Degradation as a Common Concern  307 XII. CONCLUSIONS

The chapter has argued that the three areas of biodiversity loss, effects of climate change and land degradation must now be regarded as of equal weight in the international arena. As a consequence, the field of land degradation and its sub-set of desertification can now be more clearly regarded as part of the common concern of humanity. In particular, given the perceived limitations of the UNCCD, in addition to a protocol or an annex to the UNCCD to achieve the target of land degradation, a solid case can be made for the negotiation of a new MEA that covers global land degradation. Such an MEA, entitled ‘Convention on the Conservation and Sustainable Use of Land and Soil’ (or similar title), taking an integrative approach with the UNCCD,55 should recognize explicitly that this field is a matter of common concern.56 This chapter indicates that the common concern of humanity is an important if not fundamental concept of international and national envir­ onmental law. It embodies the idea that decisions about the use of natural resources must conform to globally accepted standards concerning envir­ onmental impact, and that in a wide number of cases, environmental impacts can transcend national borders. The point must be made that characterization of an environmental issue or an environmental medium as a common concern of humanity is not sufficient by itself. Certainly it can be seen as providing a powerful motivation for the achievement of environmental protection and environmental sustainability. However, the recognition of common concern can still only provide the basis for stronger demands from civil society for legal, political, economic and institutional action to address the environmental issue at hand.

55  The IUCN World Environmental Law Commission Specialist Group on Sustainable Soils and Desertification conducted a Rio Pavilions side event ‘Soils and Law: The Legal Aspects of Land Degradation Neutrality’, focusing on the need for an Annex to the UNCCD on Land Degradation Neutrality at the UNCCD Conference of the Parties in Windhoek in September 2013; see . 56  See Boer BW and Hannam ID, ‘Legal Aspects of Sustainable Soils: International and National’ (2003) Review of European Community and International Environmental Law 149 ff.

15 Protecting the Environment of Polar Regions PATRIZIA VIGNI

P

I.  PRELIMINARY REMARKS

OLAR REGIONS HAVE always been considered as unique areas of our planet and have thus attracted the interest of both scientists and adventurers who have attempted to reach these regions since the nineteenth century. Despite the undeniable uniqueness of their envir­ onment, polar regions are more difficult to preserve than other areas of our planet. In fact, the presence of ice makes these regions particularly fragile and, thus, exposed to environmental degradation. As an example, one can mention the devastating effects that climate change can cause with respect to polar regions due to ice melting. As a consequence, the level and temperature of the polar seas increase and trigger an immediate impact on flora and fauna that cannot survive in warm ecosystems. Therefore, even at first glance, special protection seems to be required both for the Arctic and Antarctic environment. Although the presence of ice is a common characteristic of both polar regions, each region has its own peculiarities. For example, climate change seems to have a stronger impact on the Arctic than on Antarctica since the northern polar area is mainly made of water and, thus, ice is thinner and easier to melt. By contrast, Antarctic ices have so far better resisted climate change since they mainly cover land and are therefore thicker. Moreover, the differences that exist between the Arctic and Antarctic not only affect their natural characteristics, but also their political and legal status. While Antarctica has been governed by an international regime for five decades, namely the 1959 Antarctic Treaty,1 the management of the Arctic region is still mainly carried out by the States enjoying sovereign rights over territories that are located beyond the Arctic Circle. Thus, a clear difference seems to exist with regard to the governance of these areas.   Washington, 1 December 1959, 402 UNTS 71.

1

310  Patrizia Vigni This chapter will first of all examine what threats currently affect both the Arctic and Antarctic environments, identifying the diverse effects that these risk factors may have on each polar area. Particular attention will be paid to some threats that have recently increased their impact on the polar environment: first, the exploitation of living and mineral resources; sec­ ond, the growing tourist activities in both polar areas; and finally, climate change. Climate change must be taken into account both as a cause of degradation of the environment and as a consequence of the presence of noxious elements in the environment itself. In fact, on the one hand, the transformation of climate conditions provokes ice melting and, thus, alters polar ecosystems. On the other hand, the presence of polluting sub­ stances in the atmosphere and increasing human activities in polar regions may modify the typical polar climate, which is, in itself, a natural feature and value of polar areas. Second, this chapter will ascertain which legal regimes and political entities are most appropriate to govern and safeguard these areas, the uniqueness of which is globally recognized. The different regimes that currently regulate the Arctic and Antarctic entail two diverse approaches that international law has so far adopted for the management of areas of our planet. The Arctic regime represents the State-centred approach that recognizes the powers and competences of sovereign States. Conversely, the Antarctic Treaty system is an international regime setting aside the selfish claims of States in order to safeguard an area of common concern. However, one must admit that in recent years the Arctic has also become an area of interest for international entities other than Arctic States. In addition, the Antarctic regime has shown some weaknesses, in particular with regard to the enforcement on the part of States Parties of the overly vague obligations of this regime. The contextual analysis of these two dif­ ferent regimes and approaches can help us to find effective solutions to the problems which, at present, not only affect polar regions, but also the global environment, the conservation of which is a common concern of the entire international community. II.  DEFINING THE LEGAL BOUNDARIES OF POLAR REGIONS

The definition of the outer boundaries of both the Arctic and Antarctic appears necessary to determine the scope of the applicable norms to polar regions. This definition also helps us to ascertain whether or not some geographic areas and legal matters remain unregulated by existing rules. In accordance with the Antarctic Treaty (hereafter AT) and the 1991 Protocol on Environmental Protection (hereafter Environmental Protocol),2   Madrid, 4 October 1991, ILM 1991, 1455.

2

  Protecting the Environment of Polar Regions  311 the ‘Antarctic Treaty area’ is located below 60° South Latitude.3 The 60° South Parallel is a political boundary that was established in 1959 in order to regulate the management of an area where territorial, political, and, later, economic interests of different States collided. The concern for the Antarctic environment, which is expressed in the Environmental Protocol, arose several decades after the adoption of the Treaty, when human activ­ ities increased in this area.4 The Protocol relies upon this fixed political boundary, although some of its norms are based on the ecosystem approach and, thus, would sometimes require more flexible borderlines. In fact, the geographic areas that are located above 60° South Latitude present several common natural features with the AT area. However, the scope of the Environmental Protocol was determined by the political choice of AT States Parties (hereafter Consultative Parties)5 of avoiding different boundaries between the legal instruments deriving from the AT.6 By contrast, the 1980 Convention on the Conservation of Antarctic Marine Living Resources (hereafter CCAMLR),7 which is a legal instru­ ment associated, but independent from the AT, recognizes the Antarctic Convergence8 as the outer boundary of its area of application.9 This area includes the AT area, but it extends above the 60° Parallel. The choice for the limit of Antarctic Convergence demonstrates the concern of CCAMLR Parties for the Antarctic environment and resources. In fact, this limit identifies an area that presents homogeneous natural characteristics, the protection of which must be ensured by means of specific legal measures.   See Articles VI and 1 of the Treaty and Protocol, respectively.  For an overview of the evolution of the Antarctic Treaty System, see Francioni F, ‘A Decade of Development of International Antarctic Law’ in Francioni F and Scovazzi T (eds), International Law for Antarctica, 2nd edn (The Hague, 1996) 1 ff 5   States Parties to the Antarctic Treaty are divided into Consultative and non-Consultative Parties. In accordance with Article IX(2) of the Antarctic Treaty, the Consultative Parties par­ ticipate in the Antarctic Treaty consultative meetings and have decision-making power. Among the Consultative Parties there are seven Claimant States (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom), which have claimed sovereign rights over certain Antarctic areas for many years on the basis of different reasons: discovery, geographic proximity, and the theory of ‘sectors’. 6   The same rigid approach was also adopted during the negotiations of the VI Annex on Liability arising from Environmental Emergencies, at . In fact, some Consultative Parties insisted on setting aside the AT in favour of other international legal instruments applicable in the area. For a critical opinion against the narrow approach that Consultative Parties also adopted during the preliminary negotiations of a liability regime for Antarctica, see Francioni F, ‘Liability for Damage to the Antarctic Environment’ in Francioni F and Scovazzi T (n 4) 581 ff. 7   Done in Canberra on 20 May 1980, ILM 1980, 837. 8  Antarctic Convergence is the maritime zone ‘where cold Antarctic waters which are moving northwards dip beneath the warmer southward-moving sub-tropical waters’. For this definition see Watts A, International Law and the Antarctic Treaty System (Cambridge, 1992) 151. 9  For the CCAMLR outer limit see the map at . 3 4

312  Patrizia Vigni Despite some unsatisfactory political compromise, the international legal system arising from the AT (hereafter ATS) establishes common rules that have been accepted by all Consultative Parties including the States claiming sovereign rights over some Antarctic territories. Similarly, CCAMLR provisions encounter the general recognition of States Parties, although its wider area of application also includes zones that are subject to undisputable State sovereignty, such as some sub-Antarctic islands.10 In short, the AT and CCAMLR identify two specific areas where com­ mon rules are applicable. As affirmed above, these areas entail a legal con­ cept that is not only well known by States Parties, but also by third countries. Thus, even from the legal point of view, the conservation of the AT and CCAMLR areas is perceived as an issue of common concern. A similar legal definition of the ‘Arctic area’ does not seem to exist. With the exception of the boundaries of the States that exercise sovereign rights over some territories of the region, no legal delimitation is established in the area. The Arctic Circle, which corresponds to 66°33’39” North Latitude, is just a geographic indicator. From a political and legal point of view, the Circle is only relevant for defining the status of ‘Arctic States’, which per­ tains to the countries whose territories are located beyond the Arctic Circle. Arctic States established the Arctic Council in 1996.11 Another two relevant, but non legal, Arctic boundaries have been established within the Council’s institutional framework. In fact, although the Council does not exercise binding powers, it has increasingly become the most impor­ tant forum for the discussion of Arctic issues.12 The Council’s main task is to enhance the cooperation between Arctic States in order to resolve com­ mon problems relating to the Arctic. To facilitate this task, the Council has established some groups of experts that may provide qualified advisory opinions with regard to scientific or specific matters. Among others, the 10   The conflict between the criterion of state sovereignty and CCAMLR provisions seems to have been resolved by a Statement of the Chairman of the Conference on the Conservation of Antarctic Marine Living Resources from which CCAMLR originated, at , 22–23. The Statement recognizes some exceptions to CCAMLR obligations in favour of states which enjoy sovereignty over subAntarctic islands. In particular, the Statement both recognizes the right of these States to maintain in force national legislation and exercise their veto vis-à-vis the adoption of CCAMLR measures relating to marine areas that are subject to their jurisdiction. 11   1996 Ottawa Declaration on the Establishment of the Arctic Council, at File 01_ottawa_ decl_1996-3.pdf, . The Arctic States are eight: Canada, Denmark (because of its sovereign rights over Greenland), Finland, Island, Norway, Russia, Sweden, and the US. 12   A first attempt at the institutionalisation of the Arctic Council is shown in the very recent establishment of an Arctic Council Secretariat. The establishment of the Secretariat was agreed at the 2012 Deputy Ministers’ Meeting and accomplished in 2013. See the Final Report of the Deputy Ministers’ Meeting, held in Stockholm on 15 May 2012, at .

  Protecting the Environment of Polar Regions  313 groups dealing with the Arctic Human Development Report (AHDR)13 and Arctic Monitoring and Assessment Programme (AMAP)14 defined two areas, the outer boundaries of which do not correspond to the rigid line of the Arctic Circle. In fact, the AHDR and AMAP groups must ana­ lyse the human presence and environmental characteristics, respectively, of some regions that have common demographic and natural features and, thus, cannot be delimited on the basis of geometrical criteria.15 Despite the importance of the research and assessment activities that these working groups carry out, AHDR and AMAP boundaries cannot be considered as legal delimitations because an Arctic legal regime that is applicable to AHDR and AMAP areas does not yet exist. Although Arctic States have so far adopted national legislation that is inspired by the guidelines of the AHDR and AMAP working groups, such legislation does not seem to have the same effects of a homogeneous legal system, which can be uniformly applied to the entire AHDR and AMAP areas. Finally, one cannot disregard the fact that the Arctic mainly consists of an ocean that is surrounded by land. Thus, the protection of this peculiar marine area of our planet also seems to be justified by the need to face the recent attempts of the five Arctic Ocean Coastal States16 to affirm their exclusive rights over the Arctic waters. Thus, the management of the Arctic has so far been dealt with as an activity of the exclusive concern of Arctic States. In order to ascertain whether or not the protection of the Northern and Southern polar environment may be considered as a ‘common concern of humankind as a whole’, one must identify the precise areas to which this protection should be applied. As to Antarctica, the relevant areas that may be easily identified are the AT area and Antarctic Convergence. Conversely, as far as the Arctic is concerned, different ‘legal’ areas must be taken into account when diverse matters are at issue. Within the system of the Arctic Council itself, different boundaries are applied when political, environ­ mental, or demographic matters are dealt with.17 Even at first glance, the protection of the Arctic environment seems to raise considerable conflict 13   AHDR was established in accordance with the 2002 Arctic Council’s Ministerial Declaration. It represents the first comprehensive assessment of human well-being in the Arctic region. 14   Actually, the AMAP was established in 1991, before the creation of the Arctic Council, within the framework of the Arctic Environmental Protection Strategy (AEPS), a preliminary attempt at cooperation between Arctic States. For an overview, see Koivurova T, ‘Do the Continental Shelf Developments Challenge the Polar Regimes?’ (2009) Yearbook of Polar Law 477 ff, 482. 15  For the different borders of AHDR and AMAP areas, see the map at . 16   The Arctic Ocean Coastal States are: Canada, Denmark, Norway, Russia, and the US. 17   For the difficulty in identifying Arctic legal boundaries, see Hall CM and Saarinen J, ‘Polar Tourism: Definitions and Dimensions’ (2010) Scandinavian Journal of Hospitality and Tourism 448 ff, 452.

314  Patrizia Vigni between the competent legal regimes and political entities that are active in the region.18 III.  EMERGING THREATS TO THE POLAR ENVIRONMENT

A.  General Remarks Although polar regions, in particular, Antarctica, seem to be isolated from the other areas of our planet, they have been increasingly affected by the agents that are the main reason for environmental degradation. As affirmed above, the fragility of polar regions represents their most typical feature, which is the fact that these regions are ice-covered areas. In fact, harmful agents appear to have a stronger impact on iced eco­ systems than on other areas of our planet due to the fact that ice may more easily change its original state than land or atmosphere usually do. Among the emerging threats affecting the entire planet in general and the polar regions in particular, mention can be made of the massive exploi­ tation of natural resources. Clearly, exploitation activities may dramati­ cally modify both the external appearance and internal natural equilibrium of the polar environment. Second, polar regions are inevitably threatened by the increasing pres­ ence of human beings, in particular, tourists. Ice-covered areas cannot generally sustain a large population. In addition, tourists are sometimes not adequately trained to move about in these fragile areas. Finally, polar tourist activities are generally carried out by means of ships, the passage of which increases both the possibility of ice melting and the risk of pollu­ tion of the polar environment. Last but not least, one must observe that climate change is probably the main threat to have affected the global environment in the last few dec­ ades. The alteration of the environmental conditions of these regions entails a loss for the global environment and the international community itself.19 This loss is twofold: on the one hand, the alteration of the polar climate certainly entails dangerous consequences for the global environ­ ment such as, for example, the rising level of the seas that is provoked by ice melting. On the other hand, the modification of climatic conditions is an environmental harm in itself because it irreparably changes the polar environment. One cannot deny that the conservation of the peculiarities and fragilities of polar regions is a global environmental value. The protection of polar regions not only affects the interests of the States and people that are geographically close to these areas. Polar regions are   Stokke O, ‘Environmental Security in the Arctic’ (2011) International Journal 835 ff, 837.   For this view see ibid, 843.

18 19

  Protecting the Environment of Polar Regions  315 relevant for the international community as such. This global interest and the attractiveness of polar regions is demonstrated by the fact that tourist activities in these areas have dramatically increased in recent years. In short, if the conservation of polar regions is a value in itself, the envi­ ronment of these regions should be considered as a common good. While this intention of considering polar regions as global values emerges from the ATS which recognizes the status of Antarctica as a ‘natural reserve devoted to peace and science’,20 the same cannot be affirmed in relation to the Arctic, at least, in clear terms. For example, one author has observed that the use of the words ‘natural wilderness’ with regard to polar regions is quite common in ATS official documents, while it is scarcely mentioned in national or international political and legal instruments relating to the Arctic.21 There apparently exist two main reasons why the value of Arctic and Antarctic ‘wilderness’ has a different perception in the international community. First of all, while Antarctica is an uninhabited area, the con­ servation of which is the main concern of all AT Parties, whether Claimant or non-Claimant States, in the Arctic the individual rights of sovereign States, including State security, are also relevant. Second, one cannot ignore the fact that the Arctic also sustains a human population whose interests deserve to be protected, in particular, the rights of indigenous people. Although a balance between diverse interests appears to be necessary in the Arctic, one must consider that the serious and permanent alteration of the Arctic environment may also cause a negative impact on the satis­ faction of interests other than environmental ones. As an example, the major depletion of Arctic living resources may hamper indigenous people from carrying out their traditional ways of getting food. Thus, the analysis of the several threats affecting polar regions will help us to ascertain whether and to what extent environmental interests may be set aside to safeguard rights of a different nature. B.  Exploitation of Natural Resources i.  Antarctic Resources The exploitation of natural resources of both the Arctic and Antarctic has become an emerging problem due to the increasing needs of the world­ wide population. Required resources are both living and mineral. While the exploitation of living resources is harmful to the environment in itself   Article 2 of the Environmental Protocol (n 2).   Bastmeijer K, ‘Protecting Polar Wilderness: Just a Western Philosophical Idea or Useful Concept for Regulating Human Activities in the Polar Regions?’ (2009) Yearbook of Polar Law 73 ff, 99. 20 21

316  Patrizia Vigni since the depletion of flora and fauna directly affects the ecosystems to which these resources belong, the excavation of mineral resources may threaten the environment when it is carried out without taking necessary preventative measures for the protection of the environment. Existing ATS norms considerably restrain the exploitation of Antarctic natural resources. In fact, Annex II to the Environmental Protocol only allows the taking of specimens for scientific purposes.22 This restrictive regime is justified by the fact that, under the ATS, Antarctica must be man­ aged in the interest of humankind.23 The limit of the AT regime is in the scope of Annex II itself, which excludes both marine living resources, the conservation of which is regu­ lated by CCAMLR, and some particular species, such as seals and whales, that are protected by specific international regimes.24 Unlike the Environmental Protocol, CCAMLR allows the ‘rational use’ of marine resources including exploitation for commercial purposes. Thus, the main threat to Antarctic living resources seems to affect marine species. However, one must recall that CCAMLR is not a fishing regime regulating the mutual right of States Parties to use resources; its main pur­ pose is still the conservation of the Antarctic marine ecosystem.25 Thus, the freedom of States Parties to exploit marine resources cannot be consid­ ered unlimited. Moreover, Antarctic living resources have been recently affected by some new forms of ‘utilization’: namely, commercial bioprospecting, which entails the commercial exploitation of the results deriving from scientific activities relating to Antarctic genetic resources. Although bio­ prospecting does not endanger the existence of species, it does not seem to respect the status of Antarctica as a ‘natural reserve devoted to peace and science’. In particular, bioprospecting appears to be inconsistent with some fundamental ATS provisions. For example, commercial exploitation entailing the establishment of patent and copyrights over the discovered scientific data does not allow the free circulation of information, which is one of the main obligations established by the AT and Environmental Protocol. Thus, while the direct impact of bioprospecting activities is quite insignificant on the Antarctic environment since genetic resources may be 22   The collection of specimens is only allowed by permit which is issued by the competent national authorities of States Parties. See Article 3 of Annex II. 23   See AT Preamble. 24   Convention for the Conservation of Antarctic Seals, done in London, 11 February 1972, ILM 1972, 251 and International Convention for the Regulation of Whaling signed at Washington, 2 December 1946, 161 UNTS 72. 25   For a thorough analysis of this issue see Francioni F, ‘La conservation et la gestion des ressources de l’Antarctique’ in Collected Courses of the Hague Academy of International Law (Recueil des Cours), vol 260 (1996) 243 ff. For the misleading view that considers CCAMLR as an agreement regulating commercial fishing, see amongst others, Jones CD and Lockhart SJ, ‘Detecting Vulnerable Marine Ecosystems in the Southern Ocean using Research Trawls and Underwater Imagery’ (2011) Marine Policy 732 ff, 732.

  Protecting the Environment of Polar Regions  317 collected by a single or a few specimens, the presence of some products on the market indicating Antarctica as the origin of their components may lead the international society to the misleading conviction that the Antarctic environment and its resources are suitable for free appropria­ tion and commercialization. As a consequence, if the status of Antarctica as a natural reserve loses its importance, certain greedy private or public operators may be encouraged to overlook a fundamental ATS obligation, such as the ban on exploiting Antarctic resources for commercial pur­ poses. In conclusion, the effective protection of the Antarctic environment can only be fully accomplished if the international community considers this area as a ‘common good’ or, at least a good that must be managed in the interest of humankind.26 Similarly, ATS norms relating to the conservation of Antarctic mineral resources are quite strict. Article 7 of the Environmental Protocol bans mining activities except for scientific purposes.27 This ban also affects the Antarctic continental shelf which is located in the area below 60° South Latitude.28 The mining ban is the result of the failure of entry into force of the Convention for the Regulation of Antarctic Mineral Resource Activities (hereafter CRAMRA).29 The Convention attempted to establish an inter­ national regime for the exploitation of Antarctic mining resources, but it encountered opposition of both third countries and Claimant States. While the former thought that this international regime could limit their claimed sovereign rights, the latter did not accept that common goods, such as Antarctic mineral resources, were managed by a restricted num­ ber of States, namely AT Consultative Parties. In order to respond to the internal and external criticism, a 50-year mining ban was established in the Environmental Protocol. Therefore, it will expire in 2041. At that 26   For the view that Antarctica may be considered as a part of the common heritage of humankind, see Francioni F, ‘Antarctica and the Common Heritage of Mankind’ in Francioni F and Scovazzi T (eds), International Law for Antarctica (Milan, 1987) 101 ff. The concept of common heritage that this author suggests is less rigid than the one that is established by the 1982 UN Convention of the Law of the Sea with respect to the deep seabed. In Francioni’s view, Antarctica should be considered as a common good and, thus, managed in the interest of the international community as a whole. This solution did not entail the need to establish a specific international organisation and regime to achieve this result. To a certain extent one can affirm that this author anticipated the concept of ‘natural reserve’ that was included in the ATS in 1991 with the adoption of the Environmental Protocol. 27   So far scientific mining activities have been scarcely carried out because of both their expensive and environmentally hazardous character. 28   It is still controversial whether or not the Antarctic deep seabed is covered by the min­ ing ban since Article VI of the AT safeguards ‘the rights . . . of any State under international law with regard to the high seas within (the) area’. Some States that are interested in mining exploitation would prefer to apply the UN Convention on the Law of the Sea provisions to this area since, despite its strict regime, the Convention allows the commercial exploitation of the mineral resources of the deep seabed. 29   Done at Wellington, 2 June 1988, ILM 1988, 868. For an overview of CRAMRA see Francioni F, ‘La Convenzione di Wellington sulle risorse minerarie antartiche’ (1989) Rivista di Diritto Internazionale 34 ff.

318  Patrizia Vigni moment, Consultative Parties will have to decide whether they want to maintain the prohibition on mining or whether they intend to revitalize CRAMRA, although this solution might renew the disapproval of the entire international community. Thus, the ATS have apparently adopted a uniform approach with regard to the protection of Antarctic natural resources. On the one hand, this approach is aimed at preserving Antarctica as a natural reserve in the interest of humankind. On the other hand, the exploitation of resources is only allowed for scientific purposes to satisfy the desire of the inter­ national society of having knowledge of this fascinating and almost inac­ cessible area. ii.  Arctic Resources While Antarctic resources are governed by an international regime estab­ lishing the same rights and duties vis-à-vis all States Parties, the conserva­ tion of Arctic flora and fauna is mainly regulated by single Arctic States. Although general principles of international environmental law are glob­ ally recognized and other common obligations may arise from the partici­ pation of Arctic States in global agreements relating to the protection of natural resources, the absence of uniformity is quite possible between diverse national legislations. Some common guidelines have also been suggested by the Arctic Council. For example, one can mention the 2006 Salekhard Declaration in which the Council invites States to pay attention to the preservation of biodiversity for the protection of Arctic flora and fauna.30 However, the major difference that emerges between the regimes for the conservation of Arctic and Antarctic resources concerns the fact that the Arctic sustains human presence. On the one hand, therefore, natural resources must be preserved in the interest of the Arctic population; while on the other, the resources are instrumental for the very existence of these people themselves. For this reason, the abovementioned Salekhard Declaration also mentions the need for sustainable development. As a consequence, the absolute ban on resource exploitation as established by the ATS cannot be a valid solution for the management of Arctic resources. For example, mention can be made of the negative impact that the US ban on polar bear products had on the sport hunting business.31 The protection of Arctic flora and fauna clearly calls upon the balance between diverse interests which are equally important. The recognition of 30  At . 31   Pearce T, Ford JD, Caron A and Kudlak BP, ‘Climate Change Adaptation Planning in Remote, Resource-Dependent Communities: an Arctic Example’ in (2012) Regional Environmental Change 1 ff, 8 (at ).

  Protecting the Environment of Polar Regions  319 the priority of certain interests over others frequently depends on the internal political opinions and conditions of Arctic States. So, States may decide to sacrifice environmental issues during periods of economic crisis. Conversely, States in which environmentalist groups are quite pow­ erful are less likely to ignore environmental matters. In addition, Arctic States must also protect the rights of indigenous peoples inhabiting their territories. At present, these rights have been recognized at the inter­ national, regional, and State level. Thus, Arctic living resources must also be preserved to allow indigenous groups to maintain their traditions. The balance of environmental matters and interests of a different nature is also required with regard to Arctic marine resources. First of all, Arctic States’ sovereignty is recognized over marine areas. Thus, unlike the Antarctic seas, the territorial waters, continental shelf, and exclusive eco­ nomic zone (hereafter EEZ) may be identified in the Arctic as correspond­ ing to Arctic coastal States. Second, one must take into account that, under the international law of the sea, and in particular, the 1982 UN Law of the Sea Convention (hereafter UNCLOS),32 States enjoy sovereign or exclu­ sive rights over the natural resources belonging to these marine areas. Thus, the exploitation of Arctic resources, especially mineral resources of the continental shelf, are entirely under State jurisdiction.33 Although min­ ing may produce serious harm to the marine environment, Arctic States may be encouraged to run the risk of carrying out mineral activities in the marine areas that are under their jurisdiction in order to face the current shortage of energy sources. However, under the UNCLOS, the exploitation of marine, whether liv­ ing or mineral, resources is not completely free. The Convention estab­ lishes the obligation of coastal States to respect the environment when they exercise their sovereign or exclusive powers over marine areas.34 In fact, State private interests cannot disregard a matter of general concern, such as the conservation of the marine environment and its resources. The same argument may be applied to the Arctic, the preservation of which should be ensured by States in the interest of the international community as a whole. In this regard, one author has invoked the concept of ‘respon­ sible sovereignty’, on the basis of which State behaviours, including the exercise of sovereign powers, should only be considered to be legitimate when they are carried out in accordance with international law. 35   Signed at Montego Bay, 10 December 1982, ILM 1982, 1261 ff.   This point is highlighted with regard to the mineral petroleum existing in the seabed. See Stokke O (n 18) 847. 34   See Article 193 relating to the duty of States to control that the activities that are carried out under State jurisdiction respect the environment and Article 208 concerning the duty of coastal States to prevent the environmental pollution that may arise from seabed activities subject to their jurisdiction. 35  For this view see Francioni F, ‘Realism, Utopia and the Future of International Environmental Law’, EUI Working Paper, Department of Law, 2012/11, 1 ff. 32 33

320  Patrizia Vigni iii.  Tourist Activities Another serious threat affecting the polar environment exists in the increasing navigation, in particular, of tourist vessels in the Arctic and Antarctic. Tourists are primarily attracted by the remoteness and wilder­ ness of these areas.36 However, significant human presence is precisely the main cause of the degradation of wilderness. Moreover, one must observe that tourist navigation has a more serious impact on the polar environment than on other areas of our planet. First of all, this is due to the high seasonality of polar tourism that causes a con­ centration of tourists in the short summer period.37 Second, the crossing of ice-covered waters provokes greater carbon emissions because of the need to use the maximum power of vessels’ engines.38 Therefore, although polar tourism may be less significant in terms of the number of vessels and people involved compared to tourist activities that are carried out in other areas of our planet, its environmental impact is considerably greater. In recent years, one of the most crucial issues relating to tourist naviga­ tion is the appropriateness of ships that are used for tourist cruises. This problem has been raised both with respect to the Arctic and Antarctic. The Antarctic waters were often the scene of naval incidents. Nordkapp, a Norwegian tourist vessel which ran aground off the Antarctic Peninsula is just one example.39 This vessel had been classified for light ice conditions and, thus, should have not been suitable for travelling through the Antarctic waters where ice is particularly thick.40 Actually, the majority of the vessels that are currently used to carry out polar tourism are old ships that no longer seem to ensure safe navigation in the fragile polar ecosys­ tems. In order to prevent further incidents, both the ATS and the Arctic Council41 have invited States Parties to implement International Maritime 36   For a thorough analysis of the reasons why tourists choose polar regions as preferred destination, see Hall CM and Saarinen J (n 17) 462. 37   Ibid, 454. 38   Maher PT, Johnston ME, Dawson JP and Noakes J, ‘Risk and a Changing Environment for Antarctic Tourism’ (2010) Current Issues in Tourism 387 ff, 391. 39   Another incident involving MS Explorer, a Canadian cruise ship, resulted in the first sinking of a ship in Antarctic waters. For an overview of this incident see ibid, 388–89. Other serious incidents very recently occurred in the Antarctic waters. In December 2011 and January 2012, respectively, two fishing vessels sunk in the Ross Sea and needed special rescue interventions due to the fact that they were not appropriately equipped to sail icecovered seas. For an overview of these recent incidents see ‘ASOC Briefing on Two Recent Accidents in the Ross Sea, Antarctica Fishing Vessels Sparta and Jeong Woo 2’ (2012) at . 40   Brosnan IG, ‘The Diminishing Age Gap between Polar Cruisers and their Ships: A New Reason to Codify the IMO Guidelines for Ships Operating in Polar Waters and Make Them Mandatory?’ (2011) Marine Policy 261 ff, 264. 41   See the 2009 Tromso Declaration in favour of the implementation of IMO guidelines for ship safety, at ,File 06_tromso_declaration_2009_signed.pdf. Actually, IMO

  Protecting the Environment of Polar Regions  321 Organization (IMO) Guidelines for ships operating in the polar waters.42 These Guidelines establish safety and technical characteristics for vessels operating in polar regions. In particular, the ATS adopted Measure 4(2004),43 which orders Consultative Parties to set out the duties of tourist operators to establish insurance, prepare a contingency plan and provide advanced notice relating to the tourist activities that they intend to carry out in Antarctica. Although the use of safe vessels is certainly an important step for the prevention of the environmental degradation of polar regions from tour­ ist activities, one cannot ignore other aspects relating to this matter. For example, the distinctiveness of polar regions also requires specially trained personnel to be employed on tourist vessels. Moreover, tourists should be prepared in advance to face the fragility of the polar environ­ ment.44 In particular, the landing of tourists on the ice-covered territory should be regulated in order to safeguard the polar environment. Measure 15(2009) was adopted by the AT Consultative Parties to deal with the landing of persons from passenger vessels.45 Even though polar tourism has become one of the main commercial activities carried out in polar regions, insufficient legislation has been so far adopted relating to this matter both within the ATS and legal systems of Arctic States.46 This is primarily due to the fact that tourism is of great economic interest to both tourist operators and States. In particular, Antarctic States that are close to the AT area may gain an advantage from their geographic position to provide assistance to tourist ships travelling towards Antarctica. Similarly, tourist activities have great economic sig­ nificance for Arctic States and their populations as a source of profit. Arctic tourism represents the third largest State export after mining and petroleum products.47 adopted Guidelines for Ships operating in Arctic Ice-covered Waters in 2002, MSC/Circ 1056 MEPC/Circ 399. The 2009 Tromso Declaration is the formal recognition of the 2009 Guidelines which extended their scope to Antarctica as well. 42   2009 IMO Guidelines for Ships operating in Polar Waters (A26/Re. 1024). For the view that the IMO Guidelines are a valid instrument to control the appropriateness of tourist ships, see Brosnan IG (n 40) 262. 43   Measure 4(2004) - ATCM XXVII, Capetown. AT Measures are binding legal acts that enter into force when all the Consultative Parties implement them in their national legal orders. 44   For this view see also Maher PT, Johnston ME, Dawson JP and Noakes J (n 38) 390. 45   Measure 15(2009) - ATCM XXXII, Baltimore. 46   The issue of Antarctic tourism is one of the most important items in the AT Consultative Parties’ agenda. For this reason, they decided to organize a Meeting of Experts on the man­ agement of ship-borne tourism in the Antarctic Treaty Area that was held in Wellington (NZ) in 2009. However, the normative outcome that has so far resulted from this meeting is quite scarce. Only two resolutions (hortatory acts with a non-binding character) were adopted in 2011. See Resolution 3 (2011) on General Guidelines for Visitors to the Antarctic and Resolution 4 (2011) on Site Guidelines for Visitors - ATCM XXXIV, Buenos Aires. 47   For this view see Hall CM and Saarinen J (n 17) 455.

322  Patrizia Vigni In short, tourism is a lawful activity that cannot be banned in polar regions in absolute terms. In particular, State policies seem to favour the development of these types of activities that bring prosperity to their economy and population. Nevertheless, one cannot ignore the significant environmental impact that these activities may have on the polar environ­ ment. In particular, as far as the Arctic is concerned, one must observe that, while frequent navigation provokes ice melting, the reduction of ice facilitates the passage of ships. Thus, environmental degradation may dramatically escalate.48 In short, when the conservation of polar regions is at risk, lawful activi­ ties must be regulated and, if necessary, restrained because of their nox­ ious consequences. In fact, no State political or economic choice should be considered to be legitimate if it is inconsistent with the need to preserve the polar ecosystems. iv.  Climate Change Climate change has recently become one of the most frequently discussed issues in the international fora and, in particular, in the Arctic and Antarctic regimes. During the 2007-2009 International Polar Year, political and scien­ tific dialogue mainly concerned climate change.49 The interest in this matter is not surprising if one considers that climate change is one of the primary causes of degradation of the polar environment.50 The impact of climate change affects several elements of the polar environment, such as land­ scape, flora, and fauna.51 In fact, since polar regions are ice-covered areas, their aspect may be easily altered by rising temperatures that provoke ice melting. In addition, climate change may bring about the extinction of some species that only survive in cold temperatures. Finally, one must observe that, in the Arctic, the harmful effects of climate change also affect people living in this area. In particular, indigenous groups, such as the Inuit popu­ lation, may lose the availability of species important for their subsistence.52 As affirmed above, climate change is not only a cause of the degrada­ tion of the polar environment. Climate change itself represents the nega­ tive consequence of the presence of noxious substances and activities in polar regions. Increasing navigation is an example of a harmful activity for ice-covered areas because it provokes ice melting. Certainly, air pollution is the main reason for climate alterations.53 In this case, the activities that provoke air pollution most frequently occur   This point is highlighted by Stokke O (n 18) 838.   Hall CM and Saarinen J (n 17) 448. 50   Stokke O (n 18) 839. 51   Pearce T, Ford JD, Caron A and Kudlak BP (n 31) 4. 52   Ibid, 1. 53   Stokke O, ‘Protecting the Arctic Environment. The Interplay of Global and Regional Regimes’ (2009) Yearbook of Polar Law 349 ff, 359. 48 49

  Protecting the Environment of Polar Regions  323 outside polar regions and, thus, of the areas of applicability of the norms relating to the protection of these zones. This is particularly so as far as Antarctica is concerned since industrial and commercial activities are banned in the AT area. This peculiarity of the harmful causes of climate change is the primary reason why both AT Consultative Parties and Arctic States have not yet adopted specific provisions for the prevention of climate alterations. Certainly, the activities that are harmful for the polar climate must be reduced. However, climate change is clearly a matter that needs to be dealt with at the global level because both State and regional regimes appear to be ineffective for this purpose. In short, the main reason for environmental degradation, ie climate change, is a common threat that must be challenged by the international community as a whole. IV.  WHAT GOVERNANCE FOR THE POLAR ENVIRONMENT?

The environmental threats affecting polar regions require effective means for the prevention and repair of environmental damage. International law traditionally recognizes the competence of sovereign States to ascertain which means are the most appropriate to preserve the territory and resources that are under State jurisdiction. As for polar regions, one must observe that the criterion of State sover­ eignty is not suitable for application to Antarctica since, under Article IV of the AT, the exercise of existing sovereignty claims has been ‘frozen’. Nevertheless, although territorial sovereignty is not generally recognized, ATS common provisions require Consultative Parties to enforce these obligations vis-à-vis private persons who, under their jurisdiction, organ­ ize activities carried out in Antarctica. For example, the abovementioned duty of tourist operators to adopt contingency plans is regulated by the legislation of the Consultative Party in the territory of which the operator organizes his/her activities. Thus, even if the approach based on State sovereignty is not applicable in the area below 60° South Latitude, the control of sovereign States is fundamental to the enforcement of ATS norms. Conversely, Arctic States’ sovereignty has been generally acknow­ ledged and, thus, States are competent to manage the polar environment and resources that happen to be under their jurisdiction. Even though sovereign State powers are an effective instrument to manage territorial areas, they do not guarantee the uniform regulation of diverse zones. In fact, the different rules that are established by diverse States may conflict or, at least, overlap. As an example, some conflicts have recently arisen from the proposals of Arctic and Antarctic coastal States of extending their continental shelf

324  Patrizia Vigni beyond the limit that is established by the UNCLOS. In fact, Article 76(7) of the Convention allows States to extend the outer boundary of their con­ tinental shelf in accordance with the recommendations of the Commission on the Limits of the Continental Shelf (hereafter UNCLOS Commission).54 AT non-Claimant States did not welcome these proposals of Claimant States because, in their view, the extension of the outer limit of the conti­ nental shelf should be considered as the expansion of existing claims, which is forbidden by Article IV of the AT.55 On the contrary, Claimant States affirm that the right to the continental shelf is inherent in the sover­ eignty over coastal territories. Thus, if Article IV of the AT allows claims over Antarctic territories, the corresponding claims over the continental shelf are also legitimate. In the view of Claimant States, the extension of the continental shelf is the result of the application of evolving inter­ national law of the sea to an existing right. Although the proposals for the extension of the Antarctic continental shelf are comprehensible forms of the reciprocal self-defence of Claimant States, the current evolution of ATS norms should have compelled all Consultative Parties, whether Claimant or non-Claimant, to avoid revitalizing sovereignty issues in order to demonstrate their genuine intention to manage Antarctica in the interest of humankind. Similarly, even if State sovereignty is generally recognized in the Arctic, the proposals of Russia and Norway to extend their continental shelf in accordance with Article 76(7) of the UNCLOS have been strongly dis­ puted both by the Arctic States that do not have coastal territories and indigenous populations.56 In particular, the Inuit population reaffirmed its rights over the Arctic during the 2009 Meeting of the Arctic Council.57 In contrast, Arctic Ocean Coastal States have repeatedly asserted their inten­ tion to deal with the issue of the outer limit of the continental shelf in accordance with existing international law, ie the UNCLOS.58 54   States’ proposals must be submitted to the UNCLOS Commission within 10 years from the date of ratification of the Convention. Thus, both Antarctic Claimant and Arctic coastal States have rushed to comply with this deadline in the last decade. For an overview see Riddell-Dixon E, ‘Meeting the Deadline: Canada’s Arctic Submission to the Commission on the Limits of the Continental Shelf’ (2011) Ocean Development and International Law 368–82. 55   Amongst Claimant States, Australia, New Zealand, Argentina, and Norway submitted a proposal affecting the area below 60° South Latitude. France and the United Kingdom proposed the extension of their continental shelf corresponding to their sub-Antarctic islands that are located in the CCAMLR area. At . In its recommendation to Australia, the UNCLOS Commission stated that it would have set aside the delimitation of the continental shelf cor­ responding to the AT area since the issue of State sovereignty was controversial in this area. 56  Fossum JE and Roussel S, ‘Moving Above and Below the State’ (2011) International Journal 781, 783. 57   2009 Circumpolar Inuit Declaration on Arctic Sovereignty. For an overview, see Koivurova T, ‘The Actions of the Arctic State Respecting the Continental Shelf: A Reflective Essay’ (2011) Ocean Development and International Law 211 ff, 219. 58   See Arctic Ocean Coastal States Declaration, done in Ilulissat (Greenland), on 28 May 2008, at and the Summary

  Protecting the Environment of Polar Regions  325 The extension of the outer limit of Arctic and Antarctic continental shelves is an important issue for the protection of the environment and conservation of resources of polar regions. First of all, if all Arctic coastal States extended their continental shelves in accordance with Article 76(7) of the UNCLOS, the Arctic Ocean would be mainly under State jurisdiction and, thus, a limited area of deep seabed would remain.59 Therefore, the possibility of managing this area in the interest of humankind would be considerably reduced. In addition, if Arctic States carried out mineral exploitation activities in their continental shelves, the impact of mining would be devastating on the polar environment due to its fragility. Although the UNCLOS requires coastal States to perform activities in the marine areas under their juris­ diction in accordance with the general principles of international environ­ mental law, the content of this obligation is too general to ensure that selfish State interests are set aside to satisfy the common concern for the conservation of the Arctic. As regards the extension of the Antarctic continental shelf, the morator­ ium on mining that was established by Article 7 of the Environmental Protocol seems to guarantee the protection of the Antarctic environment and resources in the entire area below 60° South Latitude.60 In sum, although sovereign States demonstrate that they have the most effective enforcing powers, one must admit that these powers are too often exercised in the exclusive interests of States themselves rather than for the benefit of the international community as a whole. The weight of State sovereignty also appears within the bilateral agree­ ments that some States sign to resolve common problems. For example, mention can be made of the treaty that was concluded between Norway and Russia relating to the governance of the Barents Sea in 2010.61 The agreement is in fact aimed at conciliating the separate rights of these two States rather than safeguarding the interests of the international commun­ ity in the area. Sometimes regional entities may establish a regulatory regime relating to a specific geographical area. The Arctic Council is an example of regional cooperation between States sharing interests in the same zone. However, as affirmed above, the Arctic Council has not yet obtained the status of an autonomous entity exercising binding powers vis-à-vis all States acting in the Arctic. of the Chair of Arctic Ocean Coastal States Meeting, held in Chelsea (Canada), on 29 March 2010, at . 59   Koivurova T (n 57) 217. 60   Some concern may arise when the moratorium expires in 2041. At that moment, the extension of the marine claims would increase the possibility of new conflicts relating to the management of Antarctic mineral resources between Claimant and non-Claimant States. 61   Koivurova T (n 57) 219.

326  Patrizia Vigni As regards the protection of the polar marine environment, the 1992 Convention for the Protection of the Marine Environment of the NorthEast Atlantic (hereafter OSPAR Convention)62 appears to be a useful regional instrument to deal with this matter. Thus, in one author’s view,63 the adoption of specific provisions relating to the preservation of the Arctic Ocean within the Arctic Council’s framework would be redundant and less effective than the OSPAR Convention, since this Convention has so far demonstrated a certain expertise in regulating these issues. Conversely, the ATS has been quite successful in achieving authoritative­ ness both amongst the States Parties and third countries with regard to the governance of the Antarctic region. This regime has been considered par­ ticularly appropriate in regulating Antarctic issues, especially after the adoption of the Environmental Protocol. For example, Malaysia, which had campaigned against the AT regime within the UN General Assembly dur­ ing the 1980s, has recently demonstrated its interest in acceding to the ATS.64 In addition, the EU itself has recently attempted to affirm its com­ petence to govern the Arctic. The EU Parliament highlighted the need for common rules relating to the protection of the Arctic environment in a Resolution of 2008.65 As a consequence, the EU Commission and Council added the Arctic to the items on their agendas.66 The role of the EU seems to be restricted with regard to the political issues concerning the Arctic. In fact, the EU Council has recognized States’ competence with respect to the sensitive issue of the extension of the outer boundary of their Arctic conti­ nental shelves.67 Conversely, the EU Commission strongly sustains EU competence with respect to the protection of the Arctic environment, in particular, vis-à-vis EU Member States whose territories are located beyond the Arctic Circle.68 Moreover, EU participation in the global trea­ 62   Done at Paris, on 22 September 1992, at < www.ospar.org/html_documents/ospar/ html/ospar_convention_e_updated_text_2007.pdf>. 63   Stokke O (n 18) 847. 64   See Doc A/37/PV.10 and Doc A/C.1/46/PV38 where Malaysia stated that Antarctica had to be considered as a part of the common heritage of humankind and to be regulated by a global regime rather than the AT. 65   Resolution of 9 October 2008 on Arctic Governance. For an overview see Koivurova T (n 57) 219. 66   Pieper M, Winter M, Wirtz A and Dijkstra H, ‘The European Union as an Actor in Arctic Governance’ (2011) European Foreign Affairs Review 227 ff, 228. 67   Conversely, the EU had a leading political role in the resolution of the Northern Passage dispute. The dispute concerned Canada’s attempt to close the route from the Atlantic to the Pacific Ocean on the assumption that this area was included in Canadian internal waters. The EU supported the US view recognising the status of international strait of the passage, ibid, 233. 68   The EU has so far financed several research projects aimed at ascertaining the conditions of the Arctic environment. For the view that the EU is more active in the organisation of nonbinding activities, such as research funding, than in the binding regulation of Arctic matters, see ibid, 240. For an overview on the EU’s attempt at establishing common governance for environmental policy see Francioni F, ‘From Sovereignty to Common Governance: The E.C. Environmental Policy’ in BS Markesinis (ed), The Gradual Convergence (Oxford, 1994) 205 ff.

  Protecting the Environment of Polar Regions  327 ties regulating the protection of the environment, such as the UNCLOS and the 1992 Convention on Climate Change,69 has increased the possibil­ ity of the Union being a primary actor in the regulation of environmental issues at the global level. Finally, one cannot ignore the EU’s attempt at adopting specific norms for the protection of the Arctic environment and resources, namely the Regulation banning seal products.70 This Regulation was not particularly welcomed by Arctic States. While Denmark, as an EU Member State, expressed its opposition to this Regulation within the EU system, Canada71 and Norway72 submitted a complaint to the World Trade Organization (WTO) Dispute Settlement Body (hereafter DSB) arguing that the quanti­ tative restrictions that had been applied by the EU were discriminatory under the General Agreement on Tariffs and Trade norms. The case is still pending before the DSB, but it demonstrates that the role of the EU as ‘Arctic actor’ has not yet achieved full recognition. Thus, regional regimes may be considered appropriate to manage some specific areas of our planet if their authoritativeness is acknowledged both at the internal and external level. Despite their authority, regional regimes still appear ineffective in deal­ ing with matters of a global nature.73 As affirmed above, although the authoritativeness of the ATS has been generally recognized, one must admit that this regime cannot provide satisfactory solutions to some threats, such as climate change. These kinds of environmental problems require action at the global level. Therefore, global treaty regimes may appear the most appropriate instruments to deal with issues affecting the entire international commun­ ity. The Climate Change Convention is an example of one of these regimes. Similarly, the UNCLOS seems appropriate to regulate the issues relating to the law of the sea and, in particular, the powers of coastal States over the marine areas under their jurisdiction.74 Finally, IMO conventions and guidelines are acknowledged to be the most effective instruments to determine the safety and technical characteristics of navigation.75 In short, the governance of polar regions cannot be either left in the hands of single States, such as in the case of the Arctic, or dealt with by a regional treaty regime exclusively regulating the activities that are carried out in the area of application, such as the ATS. Recent environmental   Done at Rio de Janeiro, on 9 May 1992, in ILM 1992, 849.   Regulation (EC) No 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products, in OJ L286/36, 31 October 2009. 71   72   73   For the view that regional bodies have a modest role in combating global problems, see Stokke O (n 18) 843. 74   Ibid, 845. 75   Brosnan IG (n 40) 1. 69 70

328  Patrizia Vigni threats can only be combated through the multilevel action of the entire international community so as to preserve polar regions as goods of com­ mon concern. V.  CONCLUSIONS

The fragility of the polar environment clearly requires special protection. Environmental threats cannot only harm polar ecosystems, but they may even lead to the disappearance of polar regions. This is primarily due to the fact that these areas are covered by ice that may rapidly and irremedi­ ably melt. The destruction of the polar environment also entails the degra­ dation of other areas of our planet, in particular, the seas. Thus, harms affecting polar regions should be perceived as a threat for humankind as a whole. While Antarctica is already considered a natural reserve that must be managed and safeguarded in the general interest, the same perception does not seem to exist with regard to the Arctic. Too many interests of a different nature are at issue in this area. On the one hand, human presence in the Arctic compels States to safeguard the environment to ensure the protection of human health; on the other, other human needs must be taken into account. For this reason, the concept of sustainable develop­ ment is more frequently associated with Arctic resources and environ­ ment than with Antarctica. Although a balance appears to be necessary between diverse interests at issue, one cannot disregard the fact that sus­ tainable development is only possible if the survival of the polar environ­ ment is ensured. In fact, State, private, and indigenous interests exist as long as the objects of their interest, ie polar regions, survive. Therefore, the conservation of the polar environment is not only a holistic aim, but also a practical necessity. The need for high-level protection of the polar environment requires an identification of the most competent regime and entity to ensure this pro­ tection. First of all, this level of competence must be evaluated on the basis of the authoritativeness that a regime and entity has achieved both at the internal and external levels. International regimes obtain authoritative­ ness when they demonstrate their expertise in dealing with very specific issues. For example, IMO legal instruments have been acknowledged to be the most appropriate means to regulate navigation. Second, legal regimes can be only considered to be effective when their norms are con­ cretely able to resolve the problems for which they have been established. Thus, in some circumstances, authoritative legal systems may be totally inappropriate in regulating some issues for which a global approach is required. This is the case for climate change. Although ATS norms have so far provided a high level of protection of the Antarctic environment, they appear to be totally ineffective with respect to the environmental threats

  Protecting the Environment of Polar Regions  329 occurring outside the area of application of the AT and Environmental Protocol. Although climate change can considerably harm the Antarctic environment, it is clearly caused by activities that are carried out outside the AT area. Therefore, global action limiting these activities is the only means to arrest environmental degradation. Evidently, a single regime or entity is not able to deal with the difficult issue concerning the protection of the environment of polar regions. A multilevel dimension of protection is required.76 First, global treaties and institutions must deal with the problems entailing the action of the inter­ national community as a whole.77 Second, specific norms should be adopted by the regional regimes that know the peculiarities of their area of interest better. Finally, States have the most effective powers to enforce international, whether global or regional, obligations within the territo­ ries and vis-à-vis the persons that are under their jurisdiction. A multilevel system of protection can only work provided that the diverse regimes and entities involved fully cooperate for this purpose. Unfortunately, this cooperation does not occur very often in international law. Overlaps and conflicts are quite frequent between regimes dealing with different matters, as has been demonstrated by the abovementioned WTO dispute relating to the EU ban on seal products. In fact, when diverse interests are at hand, international regimes are inclined to con­ sider the interests that they deal with to prevail over the matters that are regulated by other legal systems. Although a formal hierarchy has not been established between the diverse international issues, one must admit that the conservation of the environment has achieved the general recog­ nition of a fundamental principle of international law. Thus, when the preservation of the environment is at risk, diverse interests should be set aside in order to avoid environmental degradation.78 This conclusion is also valid with regard to the protection of the envir­ onment of polar regions. The shortage of goods, energy, and profit may encourage public and private operators to seek new sources of prosperity   Fossum JE and Roussel S (n 56) 786.   For the need of a global institution regulating the protection of the environment, see Francioni F, Lenzerini F and Montini M, ‘Establishing The United Nations Environmental Organization: The Best Institutional Option For Reforming International Environmental Governance’ in Italian Ministry of Foreign Affairs (ed), International Conference on Environmental Governance (Rome, 2010) 63 ff, at . 78   In order to resolve problems of overlap between regimes safeguarding diverse interests, one author has suggested a criterion of logical succession that should lead States Parties to both trade and environmental agreements, first to seek the solution of the environmental features of a dispute before the dispute settlement organs established by environmental trea­ ties and then, on the basis of its outcome, to resolve the trade-related aspects of the same dispute before the competent organs. See F Francioni, ‘La Tutela dell’Ambiente e la Disciplina del Commercio Internazionale’ in Società Italiana di Diritto Internazionale (ed), Diritto e Organizzazione Internazionale dopo la Creazione dell’Organizzazione Mondiale del Commercio (Naples, 1998) 168. 76 77

330  Patrizia Vigni that may affect the areas of the planet that have so far remained undis­ turbed, such as polar regions. Nevertheless, one must bear in mind that the conservation of the polar environment still remains the only way to ensure the present and future survival and sustainable development of the international community as a whole. Thus, although polar regions may not be defined as common goods in traditional legal terms, the con­ servation of the polar environment is undeniably an aim of common con­ cern, the achievement of which entails the ‘responsible behaviour’ of both public and private actors.

16 Public Interest Environmental Litigation and the European Court of Human Rights: No Love at First Sight RICCARDO PAVONI*

I

I. INTRODUCTION

N A RECENT article,1 Professor Francioni forcefully criticized the environmental jurisprudence of the European Court of Human Rights (ECtHR) for its individualistic methodology, pursuant to which complaints involving the protection of the environment are within the jurisdiction of the Court only when the alleged damage or risk directly affects the personal sphere of the complainant in terms of breach of one or more of the rights envisaged by the European Convention on Human Rights (ECHR), especially the right to life, the right to private life and to a home, the right to property, and the right of access to justice. Such a classic human rights approach to environmental cases would not be sensible and ‘may even be counter-productive in that it tends to reduce environmental values to the very limited sphere of individual interest, thus adulterating their inherent nature of public goods indispensable for the life and welfare of society as a whole’.2 Hence, the author’s plea for a more imaginative and courageous jurisprudence which takes into consideration the collective dimension of human rights affected by environmental degradation and adapts the language and technique of human right discourse to the enhanced risk posed by global environmental crises to society and, indeed, to humanity as a whole.3

*  This chapter covers the jurisprudence of the European Court of Human Rights involving environmental issues up to 30 January 2013. 1   Francioni F, ‘International Human Rights in an Environmental Horizon’ (2010) European Journal of International Law 41 ff. 2   Ibid, 55 (emphasis added). 3   Ibid.

332  Riccardo Pavoni Shortly, by refusing to allow some sort of public interest litigation for the protection of the environment as a common good, the ECtHR would unduly miss the chance to modernize its hitherto remarkable jurisprudence on environmental human rights and bring it in line with the relentless rise of global environmental risks as matters impacting upon the security and well-being of entire peoples, groups and populations, and – possibly – the human family as a whole.4 At a time where the imperative of the ECHR system seems to be that of devising ways and means to reduce the massive caseload faced by the ECtHR,5 any suggestion to revisit the interpretation of existing rights so as to allow more room for complaints in specific areas may appear as misplaced. Yet this contingency, however serious and real, cannot lead to a flat dismissal of Francioni’s quest for a ‘collectivization’ of environmental human rights cases adjudicated by the Strasbourg Court. True, this approach would somehow expand the ratione materiae competence of the Court and imply an enhanced role for non-governmental organizations (NGOs) as complainants before the Court, with a possible decline of the right of individual petition, ie, the cornerstone of the ECHR system.6 At any rate, it is not proven that the much-feared flood of environmental complaints in Strasbourg would inevitably ensue therefrom and adversely affect competing individual claims. On the contrary, the collectivization of ECHR environmental cases may turn out to be a realistic opportunity to rationalize the operation of the Convention also from a procedural point of view, for instance by building upon the pilot-judgment technique and adapting it to the peculiar features of such area of the law. As a matter of fact, this chapter will draw attention to various environmental cases adjudicated by the ECtHR and denoted by a collective dimension, especially given the large number of individuals affected by the alleged ECHR violations and the breadth of the geographical areas in question. While the Court did not abstain from reviewing such complaints on the merits and – often – from ruling against the respondent States, the same cases show that individualized justice in environmental disputes is somehow fictitious, ie, suggested by the specific requirements of human rights litigation, but out of tune with the nature of most environmental problems. 4   On these themes, see also Schall C, ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’ (2008) Journal of Environmental Law 417 ff (enhanced role of ECtHR in environmental cases not feasible, the appropriate solution being a treaty on environmental human rights under the supervision of an international court open to individual complaints, ibid, 452–53). 5   For a powerful recent reiteration of this leitmotiv, see the Brighton Declaration adopted by the State Parties to the ECHR at the High Level Conference on the Future of the European Court of Human Rights, 20 April 2012. See Helfer LR, ‘The Burdens and Benefits of Brighton’ (2012) 1(1) ESIL Reflections. 6  See Vierucci L, ‘NGOs before International Courts and Tribunals’ in Dupuy P-M and Vierucci L (eds), NGOs in International Law. Efficiency in Flexibility? (Cheltenham, 2008) 155 ff, 161–62.

  Public Interest Environmental Litigation and the ECtHR  333 Accordingly, a central purpose of this chapter is to demonstrate that the assertion of jurisdiction by the ECtHR over cases involving the protection of the environment as a common good, alongside adverse impacts on the personal sphere of specifically identifiable victims, would not result in a major overhaul of the current principles governing the admissibility and examination of applications under the ECHR. Conversely, it could promote consistency and clarity in the jurisprudence of the Court. It is indeed submitted that much of the ambiguities and oscillations that are apparent in that jurisprudence reflect the Court’s awareness that the public interest underlying most environmental claims may pave the way for a multitude of identical or similar applications, thereby adding to its already barely tolerable docket. This fear is largely misplaced. On the strength of existing case law, environmental complaints before the ECtHR are, at any rate, exponentially growing and will predictably continue proliferating in the future. This is simply a consequence of the increasing emergence and variety of environmental offences and threats, with the corresponding societal expectation of more severe legal responses thereto. Thus, the main merit of Francioni’s views on this topic is substantive. It sheds light on the fact that the ECtHR environmental jurisprudence has reached a stage where it cannot turn a blind eye to the scientific and legal realities of environmental degradation as a collective phenomenon requiring collective solutions. The ECtHR, as an institution overseeing a ‘living instrument which . . . must be interpreted in the light of present day conditions’,7 should be more receptive to well-founded claims calling attention to serious shortcomings in the environmental law and practice of respondent States which potentially affect the well-being of entire communities of people, while not necessarily disclosing a special and immediate link with the enjoyment of ECHR rights by the complainants. This approach would match the relentless evolution of international environmental law into a body of rules addressed at community interests, as epitomized by the growing emphasis in this area on notions and principles such as common concern of humanity and erga omnes obligations. The alternative would be that the ECtHR rethinks its case law on environmental claims by ruling that the latter are completely excluded from its jurisdiction. Failing this unlikely and unwarranted scenario, the Court should develop its jurisprudence in accordance with the modern tenets of envir­onmental law and its collective and preventive dimension. This chapter will consider the doctrines and principles that are available to the ECtHR in order to dismiss in limine those environmental claims that are regarded as brought in the name of the public interest or common good as such. Such principles emerge, in particular, from the victim requirement and associated prohibition of actio popularis under the ECHR   Tyrer v United Kingdom, Application No 5856/72, 25 April 1978, para 31.

7

334  Riccardo Pavoni system (section II) and from the tests of applicability of ECHR provisions as developed in the Court’s jurisprudence (sections III and IV). The analysis will especially focus on the Court’s environmental decisions relating to the right to private life under Article 8 ECHR and the right to a fair trial under Article 6 ECHR. These are indeed the provisions which have generated the largest body of environmental jurisprudence and which provide the most interesting insights into the past, present and future of ECHR environmental litigation with a public interest/collective dimension. In view of their potential to function as catalysts for collective environmental complaints, the study will specifically address the state of the ECtHR jurisprudence relating to the standing of NGOs. This will also allow a discussion of the purpose and scope of procedural environmental rights under the ECHR according to certain recent, innovative decisions of the Court (section V). II.  SUMMARY DISMISSAL OF ENVIRONMENTAL HUMAN RIGHTS COMPLAINTS: THE VICTIM REQUIREMENT

Two techniques are basically available to the ECtHR in order to reject certain environmental complaints – ie, those allegedly brought in the public interest or lacking a specific link to the personal sphere of the complainant – without an in-depth review of their merits. On the one hand, the Court may find that the complainant is not a victim of a violation of an ECHR right by the respondent State, contrary to what is required by Article 34 ECHR. On the other, the Court may rule that the ECHR provision invoked by the complainant is not applicable to the situation described in the petition. While the problems raised by the tests on the applicability of ECHR provisions to environmental cases will be illustrated below in sections III (in relation to Article 8) and IV (in relation to Article 6), it is appropriate at the outset to emphasize that both requirements in question share the crucial feature that non-compliance with either of them determines a summary examination of the complaint at hand, ie, the latter merits vis-à-vis the principles governing the observance of ECHR rights remain fundamentally unexplored. By reference to the most-frequently invoked ECHR provision in environmental cases, that is the right to private life under Article 8, this means that only when the above requirements are fulfilled will the Court continue its examination of the complaint and enquire into whether the respondent State has struck a ‘fair balance . . . between the competing interests of the individual and of the community as a whole’.8 Accordingly, and taking into account the States’ margin of appreciation in 8   López Ostra v Spain, Application No 16798/90, 9 December 1994, para 51; Hatton and Others v United Kingdom, Application No 36022/97, 8 July 2003, para 98.

  Public Interest Environmental Litigation and the ECtHR  335 this area, the Court will scrutinize both the substantive merits of the disputed national measures and their consistency with the procedural obligations flowing from Article 8, whose purpose is to ensure that the domestic decision-making process was ‘fair and such as to afford due respect to the interests of the individual’.9 This is therefore a critical preliminary juncture in the ECtHR environmental jurisprudence. The approach followed therein is a hotspot for identifying the Court’s receptiveness to environmental complaints, chiefly those marked by a collective/public interest dimension going beyond the immediate injury suffered by the nominal applicants. Being a victim, pursuant to Article 34 ECHR, means that the applicant has to be ‘personally affected by an alleged violation of a Convention right’,10 or, more elaborately, that ‘there must be a sufficiently direct link between the applicant and the loss which he considers he has suffered as a result of the alleged violation’.11 This requirement is usually regarded as complementary to the prohibition of actio popularis in the ECHR system,12 a notion which, in a narrow sense, refers to judicial proceedings brought for the defence of the public interest or common goods as such, thus unrelated to any specific personal injury. The ECHR disallows actio popularis precisely in order ‘to avoid cases being brought before the Court by individuals complaining of the mere existence of a law applicable to any citizen of a country, or of a judicial decision to which they are not party’.13 Moreover, being a victim also means that, as a rule, the applicant must complain of a violation of the ECHR which has already occurred. Indeed, the ECHR system is not conceived of as a mechanism for preventing human rights violations and entertaining applications lodged by ‘potential’ victims. However, by building upon famous cases such as Soering,14 the Court and the former European Commission of Human Rights (ECommHR) have accepted that, ‘in highly exceptional circumstances’,15 petitions about environmental risks which may result in future ECHR violations may be capable of conferring the status of victims to the applicants, provided that they have an arguable and detailed claim that, owing to the authorities’ failure to take adequate precautions, the degree of probability that damage will occur is 9   Taşkin and Others v Turkey, Application No 46117/99, 10 November 2004, para 118. Cf section V. B. 10   Karner v Austria, Application No 40016/98, 24 July 2003, para 25. 11  ECommHR, Tauira and Others v France, Application No 28204/95, 4 December 1995, 83-B Decisions and Reports (DR) 112 ff, 130. 12  See ex multis, Tauira, ibid; Karner (n 10) para 24; Caron and Others v France, Application No 48629/08, 29 June 2010, para 1 (En droit). 13   L’Erablière A.B.S.L. v Belgium, Application No 49230/07, 24 February 2009, para 29. 14   Soering v United Kingdom, Application No 14038/88, 7 July 1989, especially paras 85, 88 and 90. 15   Tauira (n 11) 130.

336  Riccardo Pavoni such that it may be deemed a violation, on condition that the consequences of the act complained of are not too remote.16

The Court has specified that, in such circumstances, the responsibility of ECHR Parties is engaged only in the case of ‘a serious infringement of the principle of precaution’,17 thereby foreclosing judicial review of certain situations involving a degree of scientific uncertainty that, according to environmental and health law, would require the adoption of appropriate preventive measures. Confining the current analysis to environmental complaints filed by natural persons,18 only a small number of them have been explicitly disposed of on the grounds that the applicant individuals were not victims of an ECHR violation. In the earlier jurisprudence, this has occurred a few times, when the ECommHR and the ECtHR consistently found that – in view of the speculative nature of the alleged risks, their insufficient direct effects on the personal sphere of the applicants and the prohibition of actio popularis in the ECHR system – the applications at hand were manifestly ill-founded and therefore inadmissible.19 More recently, the Court has rejected as inadmissible for want of the victim requirement a complaint lodged by several farmers who had been subjected to criminal penalties for their participation in acts of destruction of genetically modified crops.20 This is a rare case where the Court, considering that the applicants were merely acting in defence of the public interest and accordingly pleading in abstracto for an environment free of genetically modified organisms, dismissed the relevant part of the complaint on purely actio popularis grounds.21 However, an increasing tendency on the part of respondent States to advance the ‘no victim/actio popularis’ defence vis-à-vis environmental complaints alleging a violation of the right to private life may be detected.22 The Court usually addresses this objection within its enquiry about   Ibid, 131–32.   Asselbourg and Others v Luxembourg, Application No 29121/95, 29 June 1999, para 1 (The Law); Bernard and Others v Luxembourg, Application No 29197/95, 29 June 1999, para 1 (En droit). 18   Cf section V. A. for the problems raised by the victim requirement in respect of NGOs. 19   Tauira (n 11) (resumption of underground nuclear testing in French Polynesia); Gounaridis and Others v Greece, Application No 41207/98, 21 October 1998 (construction of a road to serve the new international airport in Athens); Asselbourg (n 17) (construction and operation of electrically-fired steel plants); Bernard (n 17) (same). 20   Caron (n 12), paras 1, 2 (En droit). An earlier similar decision in a specular case was adopted by the Human Rights Committee, Brun v France, Comm No 1453/2006, 18 October 2006, para 6(3). The petitioners were not victims of a violation of the International Covenant on Civil and Political Rights (ICCPR) and their communication was therefore inadmissible under the Optional Protocol to the ICCPR. 21   Caron, ibid. 22   See eg Lemke v Turkey, Application No 17381/02, 5 June 2007, para 32; Di Sarno and Others v Italy, Application No 30765/08, 10 January 2012, para 78; Aydin and Others v Turkey, Application No 40806/07, 15 May 2012, para 19. 16 17

  Public Interest Environmental Litigation and the ECtHR  337 the applicability of ECHR provisions. Indeed, such an enquiry may produce the same practical results as a review of the victim requirement and be hardly distinguishable from the latter. III.  APPLICABILITY OF ARTICLE 8 (RIGHT TO PRIVATE LIFE)

A.  The Evolution of the Test and the Kyrtatos Case Insofar as Article 8 is concerned, the original test on its applicability to environmental complaints was coined in the leading case of López Ostra. The Court clarified that ‘severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health’.23 This holding explicitly made the applicability of Article 8 only conditional upon a threshold of seriousness of the environmental harm at stake, while the nature of the link between such harm and the applicant’s situation was left unqualified, save for the important proviso that a serious danger to the applicant’s health was unnecessary. That link has been specified in subsequent decisions, according to which Article 8 may come into play only when an individual is ‘directly and seriously’24 affected by environmental damage or risk. In other words, there must be a narrow connection between the applicant’s personal sphere and the alleged harm to the environment, including serious adverse consequences on the enjoyment of her/his private life and home. In the same context, the Court has lately required a ‘direct and immediate link between the impugned situation and the applicant’s home or private or family life’.25 It is clear that this tightened connection between environmental harm and the complainant’s ECHR rights may pave the way for dismissing in limine (particularly) those complaints that, although alleging breaches of the public interest in securing compliance with environmental standards, are not found to be sufficiently linked to the personal situation of the applicant. It is also clear that a large measure of discretion is afforded to the Court in determining whether the test of the direct, immediate and serious impact on the applicant’s rights has been fulfilled under the circumstances of the case at hand. Therefore, the jurisprudence of the Court on this point may easily be subject to questionable oscillations and accordingly come under attack.   López Ostra (n 8) para 51.   Hatton (n 8) para 96. For more elaboration on the test, see Fadeyeva v Russia, Application No 55723/00, 9 June 2005, paras 68–70. 25   Atanasov v Bulgaria, Application No 12853/03, 2 December 2010, para 66 (emphasis added). 23 24

338  Riccardo Pavoni In Kyrtatos, the ECtHR rejected a complaint of violation of the right to private life allegedly stemming from the environmental deterioration, including destruction of a wetland and associated protected species of fauna and flora, caused by urban development in a part of the island of Tinos where the applicants owned a house and land.26 The Court famously emphasized that Article 8 does not come into play in cases simply involving the general deterioration of the environment. Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent . . .27

On this basis, the Court concluded that, ‘even assuming that the environment has been severely damaged by the urban development of the area’,28 the applicants had not put forward convincing evidence showing that ‘the alleged damage to the birds and other protected species living in the swamp was of such a nature as to directly affect’29 their right to private and family life. Perhaps improvidently, the Court added that a different conclusion might have been reached had the national authorities destroyed a forest instead of a swamp, because this ‘could have affected more directly the applicants’ own well-being’.30 This unsubstantiated consideration highlights the instrumental – if not arbitrary – use of the test of the direct impact on the applicants’ rights that the Court may be inclined to endorse.31 26   Kyrtatos v Greece, Application No 41666/98, 22 May 2003. Francioni’s (n 1) and other scholars’ critical assessment of the ECtHR environmental jurisprudence was chiefly prompted by this much-quoted decision. See, eg, Loucaides L, ‘Environmental Protection through the Jurisprudence of the European Convention on Human Rights’ (2004) British Year Book of International Law 249 ff; see also Boyle A, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) Fordham Environmental Law Review 471 ff, 505–06. The latter author, however, concludes that international human rights courts are not the appropriate forum for entertaining public interest environmental litigation, ibid, 508–11, a view recently restated in Boyle A, ‘Human Rights and the Environment: Where Next?’ (2012) European Journal of International Law 613 ff, 631–32 (where the author also refines his stance that a right to a healthy environment as a common good or common concern of humanity is best conceptualized in terms of economic, social and cultural rights, ibid, 628–29, 632–33). 27   Kyrtatos (n 26) para 52. 28   Ibid, para 53. 29   Ibid, emphasis added. The Court also used the test of seriousness of the impact of environmental degradation on the applicants’ rights to dismiss the complaint relating to the noise pollution and other disturbances caused by the disputed construction works, ibid, para 54. For a more recent decision to the same effect, see Fägerskiöld v Sweden, Application No 37664/04, 26 February 2008, para 1 (noise pollution caused by wind turbines close to the applicants’ property ‘not so serious as to reach the high threshold established in cases dealing with environmental issues’, emphasis added). 30   Kyrtatos (n 26) para 53, emphasis added. For criticism, see ibid, Partly Dissenting Opinion of Judge Zagrebelsky. 31   If the Court’s (unscientific) understanding was that the destruction of a forest is more dangerous for the health of individuals than that of a wetland, it is convenient to recall that Article 8 is triggered also in the absence of evidence of actual harm to one’s health, as most

  Public Interest Environmental Litigation and the ECtHR  339 Arguably, Kyrtatos was not the best case to underscore the tension between the protection of the environment as a common good and the ECHR requirements. True, it clarified that not any breach of domestic environmental standards call the right to private life into question.32 However, in view of the anthropocentric nature underlying the ECHR, the fact that the applicants were apparently the only persons owning a house in the concerned area and that the alleged damage was localized – ie, was affecting a well-defined and limited portion of territory with no tangible, broader repercussions – somehow diminishes the collective dimension of the case. In ECHR jargon, such case could be understood as a pure form of actio popularis aimed at ecological preservation in and of itself. The above tension is instead best encapsulated by those situations where a multitude of individuals may be regarded as equally affected by wide-ranging environmental damage or risk, and thus equally entitled to pursue a human rights complaint before the ECtHR. B. The Atanasov and Di Sarno Judgments in Perspective: Mass Environmental Claims before the Strasbourg Court? Under the influence of the Kyrtatos decision, two such potential mass cases were eventually dismissed by the ECtHR. In Atanasov, the Court had to address a complaint by an individual against a government-approved scheme for the reclamation of the tailings pond of a former copper mine. The scheme was particularly controversial from an environmental viewpoint, because it consisted in laying sludge coming from a waste-water treatment plant on the pond. The sludge contained heavy metals from industrial waste and was therefore likely to produce serious adverse effects on the environment and the health of the local population. The applicant lived about one kilometre from the pond, whereas government reports had concluded that ‘there was a risk of heavy-metal contamination impacting on the population’s health within a ten-kilometre perimeter around the recently confirmed by the Court’s decision in Brânduşe v Romania, Application No 6586/03, 7 April 2009, para 67 (the fact that a detained person’s health had not been deteriorated by a dangerous waste tip next to his prison cell was not essential for the applicability of Article 8). Environmental cases raising significant health concerns should be reviewed in the light of Article 2 ECHR on the right to life, see Öneryildiz v Turkey, Application No 48939/99, 30 November 2004; Budayeva and Others v Russia, Applications Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008; for a recent contribution on this theme, see Sironi A, ‘La tutela della persona in conseguenza di danni all’ambiente nella giurisprudenza della Corte europea dei diritti umani’ (2011) Diritti umani e diritto internazionale 5 ff. 32   The Greek courts had annulled the relevant building permits and ordered the demolition of the buildings already constructed on the grounds of their inconsistency with Article 24 of the Greek Constitution on environmental protection. As the administrative authorities did not comply with such court decisions, the ECtHR found a violation of Article 6 ECHR on the right of access to justice, Kyrtatos (n 26) paras 27–32.

340  Riccardo Pavoni pond’.33 As to the Bulgarian authorities’ conduct, a substantial pattern of contradictory and opaque decisions was before the Court, including the failure to carry out an adequate environmental impact assessment. Yet the Court deemed that the case was not even worthy an examination on the merits. Beyond ‘an unpleasant situation in the surroundings’,34 it was unpersuaded that the pollution resulting from the reclamation scheme ‘affected the applicant’s private sphere to the extent necessary to trigger the application of Article 8’.35 And evidence of any ‘direct impact’36 of the disputed pollution on the applicant’s rights was missing. The various reasons given by the Court for this conclusion and for distinguishing its earlier jurisprudence are unconvincing. Suffice it here to mention the ‘geographical criterion’. The Court stated that, unlike previous cases, the applicant’s home was located ‘at a considerable distance from the pollution’s source’,37 that is at one kilometre from the pond! By contrast, in Lemke, a decision (perhaps deliberately) ignored in Atanasov, the Court had no doubt that Article 8 was applicable to the case of an individual who was living at about 50 kilometres from the gold mine whose exploitation she had successfully challenged before the domestic courts.38 Arguably, the unstated policy reason for the Atanasov decision was the Court’s awareness of the public interest dimension of the complaint, namely that such complaint, although formally submitted by a single applicant, could have well been ‘collectivized’ and made their own by all the individuals finding themselves in a comparable situation, ie, the inhabitants of the village in question or, however, those living, working or owning property in the concerned area. In sum, the Court might have wished to prevent these mass claims from reaching its docket, also considering that they give the impression that the ECHR mechanism is open to environmental cases that cannot be reduced to the protection of the personal sphere of the nominal applicants. What is clear is that Atanasov marked an important precedent that may be relied on by the Court to thwart the proliferation of environmental complaints. Lately, in Aydin, the same approach used in Atanasov was reiterated by the Court. In that case, it rejected, as manifestly ill-founded, an application filed by various individuals who had unsuccessfully challenged the approval of a plan for the construction of dams and hydroelectric power plants close to an ecologically-sensitive valley where most of them owned properties. In the Court’s view, the contested plan did not directly affect the applicants’ well-being and private life and, accordingly,   Atanasov (n 25) para 32.   Ibid, para 76.   Ibid. 36   Ibid, para 78. 37   Ibid, para 76. 38   Lemke (n 22) para 36. 33 34 35

  Public Interest Environmental Litigation and the ECtHR  341 Article 8 was not engaged. The applicants lived at a distance of hundreds of kilometres from the concerned area and the holiday residences they owned therein were not in the proximity of the site of the construction works. The applicants were essentially complaining of the impact of the plan on the valley’s ecosystem.39 By contrast, in Di Sarno, a case involving the ‘waste crisis’ that in the past decade has severely affected the city of Naples and various neighbouring municipalities in the Campania region, the Court dismissed the ‘no victim/actio popularis’ objection raised by the respondent Government. The latter submitted that the 18 applicants were living or working in a municipality (Somma Vesuviana) which had not been hit by the crisis, and that therefore they had not suffered any detriment to their private life by reason of the uncontrolled disposal of waste on the streets and resulting sanitary risks. In reality, according to the Government, the applicants were instituting actio popularis proceedings to challenge in abstracto the Italian waste policy and legal framework.40 The Court acknowledged that the applicants were denouncing a situation affecting the population of Campania as a whole.41 However, there existed a substantial body of evid­ ence showing that Somma Vesuviana had been significantly concerned with the waste crisis, eg, by the massive accumulation of rubbish over its streets or by the numerous waste fires which had required the inter­ vention of the local fire-brigades. Consequently, the Court found that, under such circumstances and unlike the Kyrtatos case, the environmental damage at stake directly affected the applicants’ well-being.42 In turn, this holding paved the way for the Court’s finding of a violation of Article 8 in its substantive aspect by the respondent State.43 Perhaps, there may be reason to distinguish Di Sarno from Kyrtatos. Unlike the latter, the potential public health repercussions of the situation at issue in Di Sarno were more palpable. However, the difference between complaints allegedly aimed at safeguarding environmental common goods in and of themselves (Kyrtatos) and those challenging wide-ranging administrative actions impacting on the environment and the health and   Aydin (n 22) paras 28–29.   Di Sarno (n 22) para 78.   Ibid, para 81. 42   Ibid (‘les dommages à l’environnement dénoncés par les requérants sont de nature à affecter directement leur propre bien-être’). The Court did not explicitly hold that the applicants were victims of an ECHR violation. Indeed, the reasoning and wording retained by the Court in this passage is perfectly compatible with a finding of applicability of Article 8. This shows that the two requirements in question are substantively very similar and, as such, are frequently conflated in the Court’s jurisprudence. Note however that, in a later passage of the Di Sarno decision, the Court expressly stated that Article 8 was applicable to the case (ibid, para 108). Nonetheless, the only additional remark made by the Court in that context was that the absence of evidence of adverse effects on the health of the applicants and, in general, of the concerned population did not prejudge the applicability of Article 8. 43   Ibid, para 112. 39 40 41

342  Riccardo Pavoni private life of countless persons (Di Sarno) is not straightforward. Indeed, the Di Sarno judgment implies that all the people who live or work in the densely inhabited areas affected by the Italian waste crisis, thus having experienced a situation comparable to that of the applicants, might bring a complaint before the ECtHR. This population- or region-wide dimension of significant environmental damage or risk has always been apparent in the pertinent case law,44 but has never induced the Court to reject the complaints in question on ‘actio popularis/no victim/no applicability’ grounds. Not even in the Atanasov decision, where however misgivings about the viability of this type of potential mass claims under the ECHR system are evident.45 Albeit on condition that the specific victims of the disputed measures may be identified, it thus may be said that a form of public interest envir­ onmental litigation is permissible under the ECHR. The best example to illustrate the soundness of this conclusion is probably the litigation concerning the operation of the Ovacik gold mine in Turkey and its dangerous processing methods. The widely-known Taşkin decision,46 where the Court found a violation of the rights to private life and to a fair hearing, was instigated by an application filed by 10 inhabitants of the concerned municipality (including its mayor) and neighbouring villages. About a year and a half later, a veritable mass claim arising from the same situation was adjudicated in an identical way by the Court.47 The complaint had been lodged by 311 inhabitants of the same municipality and surrounding villages. The tail-end of this litigation was the already-­ mentioned Lemke judgment which arose from an application brought by a person living 50 kilometres away from the disputed gold mine.48 Each applicant in the three cases was awarded €3,000 as compensation for moral damage. At no point did the Court signal its uneasiness with this type of mass environmental claim. Rightly so, because the fact that a given instance of environmental damage or threat indistinguishably impinges upon the rights of large sectors of a population does not constitute a bar to proceedings before the Strasbourg Court. The victim and similar requirements in the ECHR only imply that the applicants be personally affected 44   Take for instance the landmark Guerra judgment, which was prompted by a complaint from 40 women living in the heavily populated town of Manfredonia, a town located in the vicinity of a noxious chemical factory, Guerra and Others v Italy, Application No 14967/89, 19 February 1998. 45   Note that, in Di Sarno, the Court did not afford any weight to the ‘geographical criterion’ retained in Atanasov, ie, it did not even mention how far from the sites affected by the waste crisis the applicants’ homes or places of work were. By adopting a precautionary approach, it also downplayed the emphasis of the Atanasov decision on the absence of conclusive evidence about the health risk arising from the challenged measures, see Di Sarno (n 22) paras 108–110. 46   Taşkin (n 9). 47   Öçkan and Others v Turkey, Application No 46771/99, 28 March 2006. 48   Lemke (n 22).

  Public Interest Environmental Litigation and the ECtHR  343 by the violation, not that they be specially affected so as to distinguish their own situation from that of other potential complainants. And this type of litigation cannot be assimilated to an actio popularis stricto sensu, where in principle no specific personal injury can be identified. It is more akin and amenable to the notion of class action. At the same time, given the magnitude of the environmental problems at stake with the resulting large number of potential victims and extensive coverage of the concerned areas and ecosystems, the adjudication of these disputes inevitably contributes to the defence of the environment as a common good. One last crucial point deserves attention in this context. In Tătar, a case involving the same noxious mining technology that was at issue in the Ovacik gold mine litigation and squarely characterized by an analogous population-wide dimension, the ECtHR decided not to award any damages, in particular of a non-pecuniary nature, to the successful applicants.49 Under the circumstances, a declaration that the respondent State had breached the ECHR constituted itself a sufficient reparation for the moral damage sustained. The Court gave no sensible reason for this holding, which was unprecedented in its environmental jurisprudence and was stigmatized as ‘scandalous’50 in the dissent appended to the judgment. Nonetheless, an identical holding was reiterated in Di Sarno.51 Two explanations are possible for this attitude. The most likely is that the Court has fully realized that its environmental jurisprudence has consistently accepted to deal with cases marked by the collective/public interest dimension discussed above and that this may well result in a flood of complaints and related compensatory awards against respondent States. Hence, the elimination of the latter remedy may represent a strong disincentive to bring such complaints, which, moreover, should be regarded as unfit for the ECHR architecture. Alternatively, the Court’s perception may be that individual compensation is not an appropriate remedy in situations involving widespread environmental deterioration with no tangible adverse effects on the health of specific people. In such cases, the cardinal remedy should be restitutio in integrum which, through the removal of the source of pollution and restoration of the environment, would serve the interests of society as a whole. Unfortunately, the Court’s modern approach consisting of calling upon respondent States to enact general and specific measures to comply with its judgments so as to eradicate the causes of the ascertained ECHR violations has never been adopted in environmental cases. On the contrary, in Giacomelli, the Court 49   Tătar v Romania, Application No 67021/01, 27 January 2009, para 132. The Court had unanimously found that Romania had violated Article 8, especially the procedural obligations flowing therefrom, ibid, paras 112, 124–25. 50   Ibid, Partly Dissenting Opinion of Judge Zupančič, joined by Judge Gyulumyan. See the case report on Tătar by Shelton D (2010) American Journal of International Law 247 ff, 252–53. 51   Di Sarno (n 22) para 122.

344  Riccardo Pavoni declined the applicant’s request to urge the respondent State to close down the disputed hazardous-waste treatment plant or move it to another site.52 IV.  APPLICABILITY OF ARTICLE 6 (RIGHT TO A FAIR TRIAL)

A.  The Requirement of a Close Link between the Disputed Domestic Proceedings and the Civil Right at Issue Environmental complaints denoted by a public interest dimension are also difficult to pursue before the ECtHR when they allege a violation of the right to a court and a fair hearing under Article 6 ECHR.53 As relevant in our context, the Court’s settled case law establishes that Article 6 is applicable when the complainant shows that the contested domestic proceedings involved a genuine dispute over a civil right arguably recognized in domestic law. Moreover, the outcome of such proceedings must be directly decisive for the right at issue; thus, tenuous links connecting the proceedings and the right, or remote consequences of the former for the latter, do not engage Article 6.54 The interplay between the requirements of a civil right and of the decisive nature of the proceedings for achieving its protection has soon manifested its potential to curtail public interest environmental litigation under the ECHR. The key test was set by the Court in Balmer-Schafroth, a case involving a challenge to the operating licence of a nuclear power plant by 10 individuals living or owning property in the vicinity of the plant. The complainants lamented, inter alia, that their claims had not been heard by a court. The ECtHR, by a narrow majority and reversing the ECommHR findings, held that Article 6 was not applicable, since the link between the applicants’ right to physical integrity and the domestic proceedings opposing the operation of the power plant was too tenuous.55 The Court underlined that the applicants 52   Giacomelli v Italy, Application No 59909/00, 2 November 2006, paras 100, 102. See also Guerra (n 44), paras 71, 74, and for hints at a possible, different approach, Ledyayeva and Others v Russia, Applications Nos 53157/99, 53247/99, 53695/00 and 56850/00, 26 October 2006, paras 116–17 (case parallel to Fadeyeva (n 24)). 53  Together with Article 8 on the right to private life, Article 6 is the most commonly invoked provision in environmental cases under the ECHR. In the literature, the pertinent case law on Article 6 is much less explored than that on Article 8, although it provides key insights into the Court’s attitude about the relationship between the ECHR and environmental protection. For a recent appraisal, see Pitea C, ‘Diritto di accesso alla giustizia in materia ambientale e Convenzione europea dei diritti umani’ in Tanzi A, Fasoli E and Iapichino L (eds), La Convenzione di Aarhus e l’accesso alla giustizia in materia ambientale (Padua, 2011) 31 ff, 35–43. 54   See, also for further references, Balmer-Schafroth and Others v Switzerland, Application No 22110/93, 26 August 1997, para 32. 55   Ibid, para 40.

  Public Interest Environmental Litigation and the ECtHR  345 failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical.56

Similarly to the potential-victim notion and the threshold for the applicability of Article 8, an evident tension exists between the stringent test of an imminent danger to one’s health and the principles of prevention and precaution. It is therefore unsurprising that, in Balmer-Schafroth, the dissenting judges were vigorously contesting the Court’s majority for ignoring the whole trend of international institutions and public international law towards protecting persons and heritage, as evident in European Union and Council of Europe instruments on the environment, the Rio agreements, UNESCO instruments, the development of the precautionary principle and the principle of conservation of the common heritage.57

Accordingly, it is also clear that the Balmer-Schafroth approach is inimical to complaints essentially aimed at the protection of the environment as a common good, while only incidentally alleging adverse effects on the personal rights of specific individuals.58 The relentless incorporation of a right to a healthy environment in the constitutional law of European States should inevitably impact upon the above framework. In other words, when such States are sued before the ECtHR by reference to Article 6, it becomes difficult to maintain that that provision is not applicable to allegedly unfair domestic proceedings aimed at countering pollution or other forms of environmental harm on the basis of a constitutional right to a healthy environment. If, according to the domestic legal order in question, individuals are holders of that right and enjoy standing for its vindication, the outcome of the domestic litigation at stake should be regarded as decisive both for the individual right and the pursuit of the public interest underlying the protection of environmental common goods. Thus, the increasing recognition of the right to a healthy environment may exert pressure on the ECtHR. In turn, a discrete form of public interest environmental litigation could enter the courtroom via the backdoor   Ibid, emphasis added.   Ibid, Dissenting Opinion of Judge Pettiti, joined by Judges Gölcüklü, Walsh, Russo, Valticos, Lopes Rocha and Jambrek (footnote omitted). 58  This aspect emerges more clearly from the subsequent decision of the Court in the essentially identical case of Athanassoglou and Others v Switzerland, Application No 27644/95, 6 April 2000, which fully endorsed the Balmer-Schafroth precedent (‘the applicants in their pleadings . . . were alleging not so much a specific and imminent danger in their personal regard as a general danger in relation to all nuclear power plants; and many of the grounds they relied on related to safety, environmental and technical features inherent in the use of nuclear energy’, ibid, para 52; ‘the applicants are seeking to derive from Article 6 . . . a remedy to contest the very principle of the use of nuclear energy’, ibid, para 53). 56 57

346  Riccardo Pavoni of the access-to-justice guarantees enshrined in Article 6. Yet, as shown below, the Court’s most recent jurisprudence betrays its resistance to this type of complaint and, conversely, its enduring adherence to the BalmerSchafroth precedent. B.  The Uncertain Impact of the Constitutional Right to a Healthy Environment and the Lasting Legacy of the Balmer-Schafroth Judgment The problem in question was inherent in the Gorraiz Lizarraga case, which concerned a challenge brought by an environmental association before the Spanish courts against the authorization of the construction of a dam in the Navarra region. The project would result in the flooding of certain nature reserves and villages, with resulting expropriation of assets belonging to the local population. An application alleging inter alia the violation of the right to a fair hearing was brought before the ECtHR by the association and five of its individual members who lived in the area. The Court declared Article 6 to be applicable only because, in the domestic proceedings at issue, the association had also meant to vindicate the private and economic rights of its members (ie, their rights to private life and to property).59 On the contrary, the ‘aspect of the dispute relating to defence of the public interest did not concern a civil right which the [individual] applicants could have claimed on their own behalf’.60 It cannot safely be assumed that this holding referred to everyone’s right to ‘enjoy an environment suitable for personal development’ as set forth in the Spanish Constitution (Article 45(1)). As a matter of fact, that right was not invoked by the Parties and was never mentioned by the Court. By contrast, the corresponding right in the Turkish Constitution (Article 56) was squarely at stake in the domestic proceedings instituted by the complainants in the Taşkin case. The ECtHR found Article 6 to be applicable,61 but the chief reason thereof remains unclear. It seems that the Court, being uncertain over whether the right to a healthy environment may be labelled a ‘civil’ right as per Article 6, found refuge in more orthodox personal rights, such as the rights to physical integrity and to compensation for damage, which were also affected by the operation of the disputed gold mine and related governmental decision-making process.62 59   Gorraiz Lizarraga and Others v Spain, Application No 62543/00, 27 April 2004, paras 46–48. On the merits, the Court denied any violation of the right to a fair trial. 60   Ibid, para 46, emphasis added. 61   Taşkin (n 9) paras 128–34. 62   Ibid, para 133. Here the Court swiftly found that Article 6 had been breached by reason of the non-enforcement of judicial decisions by the administrative authorities (ibid, paras 135–38).

  Public Interest Environmental Litigation and the ECtHR  347 The same approach has been closely followed in the Okyay case which, for its peculiar features, must be singled out as – perhaps – the most interesting decision for our purposes.63 Indeed, the case was a prototype of public interest environmental litigation that was nonetheless adjudicated on the merits by the Strasbourg Court. It arose from a complaint against the Turkish authorities’ refusal to shut down three thermal power plants in the Aegean region of Turkey. The authors of the complaint were 10 lawyers (many of whom were representing the applicants in the Taşkin case) living at about 250 kilometres from the site of the disputed plants. They were ostensibly instituting judicial proceedings with a view to safeguarding the ecosystems and biodiversity of the concerned area against the alleged environmental disaster stemming from the operation of the power plants. In the face of the authorities’ failure to comply with the domestic courts’ decisions which had ordered the closure of the plants, they brought an application before the ECtHR, alleging the violation of their right to a fair trial. Turkey forcefully invoked the Balmer-Schafroth jurisprudence, arguing that no serious and imminent danger was threatening the applicants’ personal rights and that therefore the outcome of the domestic proceedings was not decisive within the meaning of that jurisprudence. The Court rejected this objection. First, it stated that the domestic proceedings were concomitantly aimed at protecting the environment and ‘the life and health of the Aegean region’s population, to which [the applicants] belonged’.64 As in Taşkin, it next sought to rephrase the right to a healthy environment in terms of the right to physical integrity. The considerable distance separating the applicants’ homes from the source of pollution visibly distinguished this case from Taşkin. Nonetheless, the Court underscored that, as emerging from one of the studies included in the records of the domestic proceedings, ‘the hazardous gas emitted by the power plants might extend over an area measuring 2,350 kilometres in diameter’.65 Accordingly, [t]hat distance covers the area in which the applicants live and brings into play their right to the protection of their physical integrity, despite the fact that the risk which they run is not as serious, specific and imminent as that run by those living in the immediate vicinity of the plants.66

Aware of the questionable nature of the above holding, the Court offered additional explanation for its conclusion that the outcome of the proceedings was related to the applicants’ civil rights.67 It stressed that the applicants   Okyay and Others v Turkey, Application No 36220/97, 12 July 2005.   Ibid, para 65, emphasis added. 65   Ibid, para 66. 66   Ibid, emphasis added. 67   Ibid, para 67. Given the unquestionable failure to enforce the pertinent judicial decisions on the part of the administrative authorities, the Court swiftly found a violation of Article 6 and awarded €1, 000 as moral damages to each of the applicants, ibid, paras 70–75, 79. 63 64

348  Riccardo Pavoni had standing before the domestic courts to challenge the operation of the plants on the basis of the right to a healthy environment and that they might seek compensation for damage on account of the authorities’ refusal to enforce the ensuing judicial decisions.68 It finally advanced a novel argument in favour of its approach, ie, that an interpretation of the concept of a civil right under Article 6 such as to limit ‘an enforceable right in domestic law’69 would be inconsistent with the safeguard clause enshrined in Article 53 ECHR.70 It is unclear whether the Court, when referring to Article 53, had in mind the right to a healthy environment or, rather, any or all of the other rights it had previously mentioned.71 Regardless, the impression remains that the Okyay decision marked the upper level of engagement on the part of the ECtHR with public interest environmental litigation. As a matter of fact, the subsequent jurisprudence seems less receptive to this type of complaints. At least three environmental cases post-dating Okyay and raising fair-trial claims vis-à-vis the exercise of the constitutional right to a healthy environment have been dismissed on the grounds that Article 6 was not applicable. The crucial authority relied on for these decisions was invariably the Balmer-Schafroth judgment and its doctrine of the necessity of a narrow link between the civil right invoked and the disputed domestic proceedings. As fully emerging from the next part of this chapter, a further controversial aspect of the present decisions is that two of them rejected applications lodged by NGOs or comparable collective bodies, thereby signalling incoherence and hesitation in the Court’s approach to the standing of such associations in ECHR environmental cases. In Sdružení Jihočeské Matky, the Court found Article 6 not to be applicable to the complaint brought by an association against the Czech authorities’ failure to allow its informed participation to the decision-making process relating to various technological adjustments to the Temelín nuclear power plant.72 Albeit convolutedly, the Court agreed to address the complaint from the perspective of both the rights of the association and those of its members, including the right to a healthy environment. In a controversial move, it then ruled out that the reports underscoring the shortcomings and risks associated with the plant were such as to establish   Ibid.   Ibid, para 68. 70   Article 53 reads: ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.’. 71   For an interpretation favourable to the right to a healthy environment and a discussion of its potential impact on the Court’s case law, see Saccucci A, ‘La protezione dell’ambiente nella giurisprudenza della Corte europea dei diritti umani’ in Caligiuri A, Cataldi G and Napoletano N (eds), La tutela dei diritti umani in Europa (Padua, 2010) 493 ff, 525–26, 529–30. 72   Sdružení Jihočeské Matky v Czech Republic, Application No 19101/03, 10 July 2006, para 2(1) (En droit). 68 69

  Public Interest Environmental Litigation and the ECtHR  349 the existence of a serious and imminent danger to the environment and human health.73 Hence, the outcome of the challenged administrative procedures was not decisive for the protection of any of the civil rights – be they the right to life, to a healthy environment or to property – which the Czech legal system bestowed upon the association or its members.74 In the Court’s view, the association was in reality concerned with the general threat arising from the utilization of nuclear energy, thereby advancing arguments that are typical of an actio popularis.75 In the Atanasov case, the Court agreed to examine the Article 6 claim from the angle of the citizens’ right to a healthy and favourable environment laid down in Article 55 of the Bulgarian Constitution. It even conceded that that right could be regarded as ‘civil’ under Article 6.76 However, in light of the Balmer-Schafroth test, it concluded that the applicant had not pointed to ‘concrete health hazards’,77 but rather to ‘hypothetical consequences’78 arising from the disputed measures. Hence, the domestic proceedings were not decisive for the right at stake and Article 6 did not apply.79 Recently, a closely similar decision was handed down in a case brought by Greenpeace France and involving the alleged unfairness of the domestic proceedings that the NGO had instituted against certain legislative measures on the importation and processing of exhausted fuels and radioactive waste. Evidently puzzled by the implications of the right to a healthy environment80 for Article 6 claims, the ECtHR saw it fit to simply reiterate the Balmer-Schafroth test and conclude that, at any rate, Article 6 was not engaged in the case at hand, as the latter did not disclose the existence of a serious, precise and imminent threat to that right.81 In the Court’s view, the object and purpose of the domestic proceedings was ‘très essentiellement l’intérêt général de la protection de l’environnement . . . plutôt qu’un “droit” de “caractère civil” de l’association requérante’.82   Ibid.   Ibid. It should be noted that the Court took it for granted that the right to a healthy environment may be included in the notion of ‘civil rights’ as per Article 6 (‘l’issue des procédures administratives . . . auxquelles l’association requérante n’a pas pu participer, n’était pas directement déterminantes [sic] pour les “droits de caractère civil” – tels que les droits à la vie, à la santé, à un environnement sain et au respect des biens – que l’ordre juridique tchèque conférait à elle ou à ses membres’, emphasis added). 75   Ibid. 76   Atanasov (n 25) para 91. 77   Ibid, para 92. 78   Ibid. 79   Ibid, paras 95–96. 80  This right has been granted constitutional status in France with the Charte de l’environnement approved by virtue of the Loi constitutionnelle No 2005-205, 1 March 2005. According to Article 1 of the Charter, ‘Chacun a le droit de vivre dans un environnement équilibré et respectueux de la santé’. 81   Association Greenpeace France v France, Application No 55243/10, 13 December 2011. 82   Ibid. 73 74

350  Riccardo Pavoni Therefore, these recent decisions show a prudent and restrained attitude by the ECtHR about the implications flowing from the constitutionalization of the right to a healthy environment in the legal systems of Council of Europe Member States. The Court’s firm adherence to the Balmer-Schafroth ‘remoteness test’ warrants this conclusion. That test was formulated having in mind the right to life and physical integrity, where reliance upon classic human rights doctrines seems more justifiable. But the public interest aspects inherent in the notion of a right to a healthy environment make it unsuitable for that test. The added value of this right consists precisely in opening up the possibility of human rights claims brought for the defence of the environment as a common good by individuals and NGOs.83 In this context, the Court’s argument relating to the impermissibility of individual applications in the form of an actio popularis is misleading. This prohibition refers to the very complaint lodged in Strasbourg, not to the allegedly unfair domestic proceedings which eventually give rise to an Article 6 complaint before the ECtHR. Such complaint need only be related to a ‘civil’ right attributed to the applicant by domestic law. Consequently, the Court should adjust its test on the applicability of Article 6 to the peculiar features and legal categories that are pertinent in the realm of environmental law, including the international law obligations incumbent upon respondent States. Most glaringly, the requirement of a specific and imminent threat to the applicants’ right to health, as well as the Court’s frequent broad deference to the national authorities’ findings, are not in accordance with a meaningful review of compliance with the principles of prevention and precaution in the assessment and management of environmental risks. On a policy level, the judicial self-restraint evidenced by the recent cases recalled above may again be traced to the Court’s willingness to prevent a form of public interest environmental litigation from reaching its docket through the backdoor of the Article 6 access-to-justice entitlements and related domestic proceedings involving the right to a healthy environment as safeguarded by the constitutions of respondent States. In turn, this attitude may lead to a progressive abandonment of the public interest-oriented jurisprudence epitomized by cases such as Taşkin and Okyay.84 83   Boyle A, ‘Human Rights and the Environment’ (n 26) 626 ff, 628 (‘To be meaningful, a right to a decent environment has to address the environment as a common good, in which form it bears little resemblance to the accepted catalogue of civil and political rights’). 84  In Atanasov, the Court’s attempt to distinguish the case at hand from Taşkin and Okyay is wholly unpersuasive. According to the Court, the crucial reason why in Taşkin and Okyay Article 6 was found to be applicable was that, in the domestic proceedings, the applicants had obtained judicial decisions in their favour which had explicitly acknowledged the dangerous nature of the contested activities. This had not occurred in Atanasov, where the Bulgarian Supreme Administrative Court had discontinued the case without any finding on the disputed scheme’s adverse effects (Atanasov (n 25) para 93). But the Bulgarian Court’s decision was only motivated by the expiration of the licence challenged by the applicant, not

  Public Interest Environmental Litigation and the ECtHR  351 V.  STANDING OF NGOS AND COLLECTIVE BODIES

A.  The Restricted Locus Standi of NGOs Any meaningful discussion of the current state and prospects of public interest environmental litigation before the ECtHR must necessarily consider to what extent NGOs and other collective bodies have been afforded the right to bring complaints under Article 34 ECHR. Indeed, the muchdiscussed power of NGOs to file amicus curiae briefs largely represents a palliative for their de facto limited locus standi to initiate ECHR cases. Amicus curiae participation may play a significant role in highlighting the public interest dimension of environmental complaints, but it cannot fundamentally alter the individualized-justice approach underlying the ECHR system and associated requirements. On the contrary, the preceding analysis makes it clear that, in the area of the environment, NGOs could perform a pivotal function in bundling a plurality of essentially identical individual claims and channelling them into the ECHR adjudicative process. Moreover, there is a glaring mismatch between the increasing importance attributed to (environmental) NGOs in national legal systems, including vis-à-vis their locus standi, and NGOs’ restricted right of access to the ECtHR. As shown below, the recent case law demonstrates the Court’s mindfulness of these aspects, alongside persistent hesitations. The basic problem arises from a well-settled jurisprudence,85 according to which NGOs cannot file applications to the ECtHR alleging a violation of rights which may be enjoyed only by natural persons, such as the right to life. The same applies to the rights to private life and to a home, at least ‘where the infringement of [such rights] results . . . from nuisances or problems which can be encountered only by natural persons’,86 including environmental pollution. These complaints are inadmissible for want of the victim requirement. The upshot thereof is that the most relevant ECHR provisions87 in environmental cases cannot be the bases of ECHR lawsuits instituted by NGOs. by any assessment whatsoever of the soundness of the complaint (ibid, para 28). In turn, the ECtHR should have simply reviewed whether those domestic proceedings were unfair. 85   For an early assessment of the uncertainties emerging from the jurisprudence in this area, see De Schutter O, ‘Sur l’émergence de la société civile en droit international: le rôle des associations devant la Cour européenne des droits de l’homme’ (1996) European Journal of International Law 372 ff, 372–76. 86   Asselbourg (17) para 1 (The Law) (the location of Greenpeace-Luxembourg’s headquarters in the vicinity of the disputed source of pollution did not therefore make the NGO a victim of a violation of the right to a home). For a reiteration of this holding, see Sdružení Jihočeské Matky (n 72) para 2(1) (En droit). 87   This remark does not consider Article 6 on the right to a fair trial, which is worthy a separate analysis, see below in this section.

352  Riccardo Pavoni Alternatively, NGOs have been afforded the power to act before the ECtHR as representatives of their members.88 Under this guise, they have been entitled to plead breaches of the members’ rights, and have been likened to ‘a lawyer [who] represents his client’,89 without thereby becoming themselves victims of violations. This fictitious role substantially undermines the NGOs’ ability to translate the public interest rationale of their activities at the national level into successful actions before the ECtHR, especially for those among them which cannot be regarded as local associations exclusively defending the specific interests of their members. For instance, in Association des Amis de Saint-Raphaël et de Fréjus, the ECommHR accepted that the applicant NGO was entitled to represent its members in a case concerning, inter alia, the alleged violation of the right to property stemming from an urban development project in an ecologically- and historically-sensitive coastal area. However, the Commission soon added that the NGO’s domestic challenge against the project was essentially prompted by environmental-protection considerations.90 Accordingly, by resorting to the familiar notions of actio popularis and of the exceptionality of potential victims under the ECHR mechanism, it rejected, as manifestly ill-founded, this part of the complaint.91 NGOs have reacted to this jurisprudence by increasingly grounding their complaints on Article 6 ECHR, thereby arguing that they were not afforded a fair trial in the disputed domestic proceedings involving the protection of the environment. This shift to Article 6 overcomes the hurdle posed by the victim requirement: as confirmed by the Gorraiz Lizarraga judgment,92 if an NGO was a party to the purportedly unfair domestic lawsuit, it qualifies ipso facto as a victim of an alleged Article 6 violation, regardless of whether that lawsuit may be categorized as public interest litigation. However, as examined above in section IV, the conditions of applicability of Article 6 may constitute a persistent obstacle. Article 6 complaints filed by NGOs still have to comply with the requirements of a civil right at issue and of a close link between that right and the disputed domestic proceedings. Indeed, in section IV we have seen that two such complaints have been recently rejected essentially on actio popularis grounds and, 88  As regards environmental cases, see eg, ECommHR, Association des Amis de SaintRaphaël et de Fréjus and Others v France, Application No 38192/97, 1 July 1998, 94-B DR 124 ff, 131. 89   Asselbourg (n 17) para 1 (The Law). 90   Association des Amis de Saint-Raphaël et de Fréjus (n 88) 131. 91   Ibid, 132–33. 92   Gorraiz Lizarraga (n 59) para 36, affirmed by Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox v France, Application No 75218/01, 28 March 2006, para 4. It should be noted that the ‘victim issue’ was not even raised by the ECommHR with respect to the Article 6 complaint that was at stake in Association des Amis de SaintRaphaël et de Fréjus (n 88) 133–34.

  Public Interest Environmental Litigation and the ECtHR  353 accordingly, by reason of the remote link between the civil rights in question and the domestic lawsuit.93 Reliance on the constitutional right to a healthy environment was to no avail in those cases. By contrast, other ECtHR decisions delivered in the same period of time show much more mindfulness of the increasingly important role of NGOs in environmental human rights cases, with a consequent downplaying of the ‘spectre’ of disguised public interest litigation under the ECHR. Thus, in both Gorraiz Lizarraga and L’Erablière,94 the Court found Article 6 to be applicable despite the marked public interest dimension of the domestic proceedings at issue. Such findings were facilitated by the local nature and narrow statutory objectives of the applicant associations, as well as by the evident impact that the contested activities had on the rights of their members (flooding of homes and land, in the former case, and adverse effects on private life and value of properties of persons living in the vicinity of an expanded landfill site, in the latter). Thus, the innovative character of these decisions may be questioned. They could be regarded as a straightforward application of the wellknown fictio of the NGO as a representative of its constituency. However, the Court’s decision in L’Erablière is noteworthy. After emphasizing that ‘the general interest defended by the applicant association in its [domestic] application for judicial review cannot be regarded as an actio popularis’,95 the Court ruled that that dispute ‘had a sufficient link to a “right” to which it could claim to be entitled as a legal entity for Article 6 to be applicable’.96 No clarification was given as to what NGO civil right was thought to be at stake, except that it was not its right to information and participation. Arguably, then, that civil right was simply the NGO’s capacity to take legal action in order to safeguard its own statutory aims and the substantive rights of its members. The decision is also remarkable as a rare case where, on the merits, the Court found a violation of Article 6 and awarded €3,000 as moral damages to the NGO, plus €2,500 as expenses incurred for pursuing its complaint in Strasbourg.97 B.  Procedural Environmental Rights and the Imperfect Incorporation of the Aarhus Convention into the ECHR The most interesting insights into the prospects of public interest environmental litigation and the correlative role of NGOs before the ECtHR arise from two 2006 decisions which are of particular importance in the field of   Sdružení Jihočeské Matky (n 72); Association Greenpeace France (n 81).   Gorraiz Lizarraga (n 59) paras 43–48; L’Erablière A.B.S.L. (n 13) paras 24–30. 95   L’Erablière A.B.S.L., ibid, para 29. 96   Ibid, para 30, emphasis added. 97   Ibid, paras 49, 53. 93 94

354  Riccardo Pavoni procedural environmental rights, ie, the rights to information, participation and access to justice in environmental matters. In Collectif Stop Melox et Mox, the ECtHR declared admissible a complaint brought by an NGO under Article 6 and arising from allegedly unfair domestic proceedings challenging a piece of legislation that had authorized the enlargement of a nuclear plant so as to enable the same to increase its output of the nuclear fuel MOX (Mixed Oxyde Fuel). The Court noted that, with its lawsuit before the national courts, the applicant association had undoubtedly intended to defend the general and collective interest vis-à-vis a potentially dangerous activity.98 However, it refused to find Article 6 inapplicable on the grounds that a civil right was not at issue, thereby ruling out a restrictive interpretation of that provision. Instead, it thought that it was appropriate to apply the requirements of Article 6 with ‘souplesse’99 when complaints are lodged by NGOs. Such flexibility was prompted by the well-known dynamic and evolutionary method of interpretation of the ECHR. In the Court’s view, a different approach ne serait pas en phase avec la réalité de la société civile actuelle, dans laquelle les associations jouent un rôle important, notamment en défendant certaines causes devant les autorités ou les juridictions internes, particulièrement dans le domaine de la protection de l’environnement.100

This posture did not lead the Court to do away with the civil right requirement in Article 6, something which would have represented a contra legem interpretation. Rather, the hook for the requirement at stake was found in the public’s right to information and participation in decision-making when activities threatening the environment or health are at stake. The core arguments advanced by the NGO before the national authorities had indeed revolved around the protection of this right. The Court quoted the Aarhus Convention101 in order to show that the notion of ‘public’ does include NGOs.102 Moreover, participatory rights were regarded as ‘civil’ simply because they related to personal/private rights which everybody having an interest may vindicate before the courts, thus regardless of their 98   Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox (n 92) para 4. 99   Ibid. 100   Ibid. 101  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998, in force 30 October 2001. 102   Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox (n 92), para 4. The Court referred to Article 2(4) of the Aarhus Convention on the general definition of ‘public’, while it would have been even more pertinent to mention Article 2(5) on the key notion of ‘public concerned’. According to Article 2(5), ‘public concerned’ means ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making’, and ‘non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’.

  Public Interest Environmental Litigation and the ECtHR  355 economic implications for the plaintiffs.103 The far-reaching potential of this decision for enhancing the role of NGOs before the ECtHR and promoting the protection of the environment as a common good via Article 6 complaints and procedural environmental rights is evident. From the same perspective, even more significant indications emerge from the already-mentioned Sdružení Jihočeské Matky case. The association’s complaint had also submitted that the authorities’ refusal to grant access to a series of documents relating to the operation of the Temelín nuclear power plant constituted a violation of Article 10 ECHR on freedom of expression, specifically of the right to receive information which is an integral part of that provision. The Court recalled its jurisprudence to the effect that the right to information basically aims at preventing State interferences with everyone’s right to receive information that others (such as the press) are willing to impart to her/him. It does not, in principle, provide a general right of access to information held by public bodies, a right which, in and of itself, can hardly be connected to any provision of the ECHR.104 Nevertheless, the Court unexpectedly stated that, under the circumstances of the case, the authorities’ failure to release the requested information amounted to an interference with the NGO’s right to receive information.105 It then offered various reasons why such an interference could not be regarded as arbitrary or disproportionate to the aim pursued, including the security and confidential aspects associated with the information, and concluded that the complaint was manifestly ill-founded.106 Regardless, it seems safe to assume that Article 10 was found to be applicable when the right of access to information held by public authorities is at stake. This is an innovation in the Court’s jurisprudence and, indeed, the Court itself has eventually considered the Sdružení Jihočeské Matky decision as advancing ‘towards a broader interpretation of the notion of “freedom to receive information”. . . and thereby towards the recognition of a right of access to information’.107 It is telling that this innovation occurred in a dispute involving environmental protection, given the prominence of access to information in this field as a matter of general interest. It cannot be overlooked that, in Sdružení Jihočeské Matky, the Court noted: [L]’article 10 de la Convention ne saurait être interprété comme garantissant le droit absolu d’accéder à tous les détails techniques relatifs à la construction 103   Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox, ibid. On the merits, the Court found no violation of Article 6, see Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox v. France, Application No 75218/01, 12 June 2007. 104   Sdružení Jihočeské Matky (n 72) para 1(1) (En droit). 105   Ibid. 106   Ibid. 107   Társaság a Szabadságjogokért v Hungary, Application No 37374/05, 14 April 2009, para 35.

356  Riccardo Pavoni d’une centrale [nucléaire], car, à la différence des informations concernant l’impact environnemental de celle-ci, de telles données ne sauraient relever de l’intérêt général.108

Accordingly, had the NGO’s request involved documents concerning the environmental impact assessment undertaken in respect of the plant, a less deferential review of the authorities’ conduct might have been expected, because such information was by definition a public-interest issue. If the novel interpretation cautiously put forward in Sdružení Jihočeské Matky is consistently upheld in future cases, the ECHR system will become available to pursue a veritable type of public interest environmental litigation via the right of access to information. The point is simply that the holder of such right is the ‘public’ and that, therefore, individuals and NGOs are entitled to request environmental information ‘[w]ithout an interest having to be stated’.109 By definition, this right is exercised in view of the protection of the environment as a common good. Individuals and NGOs are ‘victims’ of its violation merely by virtue of an unjustifiable refusal to afford access to the requested information, not because they are personally affected by the environmental problem to which the information refers. The duty of public authorities to release information upon request is not to be confused with their duty to proactively seek and disseminate information about environmental threats, which the ECtHR, in Guerra, found not to be covered by the right to freedom of information.110 As the Aarhus Convention clarifies, such an obligation to disseminate information is owed only to ‘members of the public who may be affected’111 by an ‘imminent threat to human health or the environment’.112 Hence, it is more plausible to make ECHR complaints about the non-fulfilment of this duty subject to the classic victim requirement. On the contrary, it is by no means certain that, as the Court ruled in Guerra, the appropriate sedes materiae for addressing such complaints is the right to private life and not the right to freedom to receive information.113   Sdružení Jihočeské Matky (n 72) para 1(1) (En droit), emphasis added.   Article 4(1) of the Aarhus Convention. ‘Environmental information’ is broadly defined by Article 2(3) of the Aarhus Convention. 110   The Court, reversing the ECommHR findings, famously ruled out the applicability of Article 10 to the case, since ‘freedom [to receive information] cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion’, Guerra (n 44) para 53, emphasis added. 111   Article 5(1)(c) of the Aarhus Convention (emphasis added). 112   Ibid. 113   Cf Human Rights Committee, General Comment No 34 (Article 19: Freedoms of opinion and expression), CCPR/C/GC/34, 12 September 2011, para 19 (‘To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest’). 108 109

  Public Interest Environmental Litigation and the ECtHR  357 For the above reasons, the de facto incorporation of the Aarhus Convention’s rights into the ECHR114 brought about by the Court’s environmental jurisprudence on Articles 2 and 8 is imperfect and unsatisfactory.115 Confining procedural environmental rights to a dimension, however important, of those provisions implies that such rights come into play only when the victim and applicability requirements studied above have been fulfilled. This was recently confirmed by the Atanasov judgment, where, despite the authorities’ failure to carry out an environmental impact assessment of the disputed activity and – accordingly – to allow the informed participation of the concerned population in the related decision-making process, the Court found that Article 8 was inapplicable.116 Finally, the hesitation on the part of the Court in making use of the potential inherent in the right to freedom of expression for environmental cases is hard to justify from the perspective of a desirable, universal convergence of standards of human rights protection. Both the Human Rights Committee117 and the Inter-American Court of Human Rights have no doubt that freedom of expression includes everyone’s right of access to information held by public authorities, including when public interest environmental information is at stake.118

  Boyle A, ‘Human Rights or Environmental Rights?’ (n 26) 499, 503, 510.   Ibid, 490–91. 116   Atanasov (n 25) para 78. The Court distinguished its previous decisions in McGinley and Egan v United Kingdom, Applications Nos 21825/93 and 23414/94, 9 June 1998, paras 96–97 and Roche v United Kingdom, Application No 32555/96, 19 October 2005, paras 155–56, by noting that in those cases the failure to provide access to information was relevant to the applicability of Article 8 only because the applicants were directly exposed to the disputed noxious activities. Cf Saccucci A (n 71) 523–24, 528 (n 117). 117   General Comment No 34 (n 113) para 18. It should also be noted that, unlike the ICCPR (Article 25(a)) and other regional human rights treaties, the ECHR does not envisage the right to take part in the conduct of public affairs which, arguably, may be applicable to situations involving requests for access to State-held information. 118   Inter-American Court of Human Rights, Claude Reyes and Others v Chile, Series C No 151, 19 September 2006, paras 61–103. The case involved the refusal to release certain information about a forestry exploitation project to certain individuals acting on behalf of the public interest. The Court found a violation of Article 13 of the American Convention on Human Rights (Freedom of Thought and Expression). Most notably, it stated: ‘Article 13 of the Convention protects the right of all individuals to request access to State-held information . . . Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it. . . . The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, th[is right] includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State’, ibid, para 77, emphasis added. 114 115

358  Riccardo Pavoni VI. CONCLUSION

This chapter has sought to demonstrate that, in many respects, the perceived inadmissibility of public interest environmental litigation under the ECHR system is a false myth. Thus, an individual is certainly debarred from challenging in abstracto before the ECtHR, say, a national piece of legislation in the field of energy policy which is alleged to be inconsistent with the fight against climate change. But, on the other hand, an individual may well lodge an ECHR complaint relating to environmental deterioration which affects a whole geographical area and associated population, including her/him. Even broader opportunities for public interest environmental litigation under the ECHR are offered by violations of the right to a fair trial, including those suffered by NGOs, as well as by the hitherto largely unexplored potential of the right to information as part of freedom of expression. The adjudication of such complaints glaringly contributes to the pursuit of the common good. On the other hand, the region- or populationwide dimension of environmental cases, that is apparent in many decisions delivered by the ECtHR, is unsurprising. It arises from the diffuse and collective nature inherent in most instances of environmental harm and shows the artificiality of individualized justice as applied to these situations. As a matter of fact, these cases open up the prospect of mass environmental claims before an already overburdened ECtHR. However, this is not a valid reason for refusing to deal with them. First, the collectivization of environmental cases – that could be achieved especially by attributing an enhanced and meaningful role to NGOs as complainants – may conversely avoid the time-consuming examination of potential repetitive cases concerning the same situation. All the people affected by the environmental risk or damage at stake could be represented in a single mass claim before the ECtHR. Second, mass litigation is a wellknown phenomenon in the ECHR context at large. Far from professing its inability to address these contingencies, the Court, with the cooperation of the Council of Europe Committee of Ministers, has introduced innovative mechanisms aimed at redressing systematic shortcomings in human rights protection arising from the legislation and practice of ECHR Parties. The chief technique devised in this context is the pilotjudgment procedure, which entails that the processing of large numbers of pending applications essentially raising the same complaint be adjourned for a given period of time following the first pilot ruling, during which the respondent State would be urged to introduce measures and compensatory remedies available to all the victims of the vio-

  Public Interest Environmental Litigation and the ECtHR  359 lation at issue. There is clearly room for finding ways to adjust this technique to the specific features of cases involving widespread envir­ onmental harm.119

119

  See the insightful remarks by Saccucci A (n 71) 530.

17 Children’s Rights Challenged by Climate Change: Is a Reconceptualization Required? CHRISTINE BAKKER

T

I. INTRODUCTION

ODAY, CLIMATE CHANGE is generally recognized to be among the most important concerns of mankind. It is also widely agreed that climate change adversely affects the enjoyment of human rights. Children’s rights are especially at risk from global warming and its consequences, both in today’s world, and in the future. In order to ensure these rights in a rapidly changing global context, there may be a need to reconceptualize human rights in general, and the rights of children in particular, from the temporal span of the present, to the ‘constitutionalization’ of common concerns of humankind in a collective future dimension. It is in this theoretical perspective that this chapter aims to examine the interconnectedness between climate change and children’s rights, and to formulate some first ideas on what such a reconceptualization of the rights of the child could entail. At the outset, it should be noted that the impact of climate change on human rights can be either direct or indirect. The right to life is directly affected when people die in hurricanes or floods caused by global warming. On the other hand, the enjoyment of the rights to health, to food, to clean water, and to shelter is indirectly threatened, as a result of rising sea levels, floods, or extreme climatological phenomena. Within the broader context of human rights, the rights of children have been given particular importance, as evidenced by the near-universal ratification of the 1989 Convention on the Rights of the Child (CRC). Many of the rights that are included in this Convention are potentially affected by climate change. At the same time, the threats of global warming and climate change for ‘our children’ and for ‘future generations’ constitute the core rationale of international efforts to combat these phenomena. Nevertheless, the

362  Christine Bakker relationship between climate change and children’s rights has not been expressly recognized in the international climate debate. This chapter aims to clarify this relationship, by examining which rights included in the CRC are (potentially) affected by climate change, and to what extent States have obligations under human rights law, to prevent or address adverse effects of climate change on children’s rights. Finally, this chapter aims to examine the ‘temporal dimension’ of children’s rights in relation to climate change. This idea is based on two main considerations. First, for today’s children, the rights guaranteed by the CRC have a ‘limited duration’, since they are only valid until a child has reached the age of 18. Therefore, immediate responses are required in order to ensure the enjoyment of these rights. Secondly, these same rights need to be guaranteed for the next generations of children, and the threats of climate change clearly endanger the enjoyment of these rights in the future. Therefore, as mentioned above, it can be argued that the actual and foreseeable effects of climate change require a conceptual reconsideration of children’s rights, which incorporates this temporal dimension. These considerations are also relevant for the discussion on global common goods. The rights of children have certain specificities in the broader context of human rights, due to their exceptional vulnerability on the one hand, and to their – current and future – role as global citizens on the other. If the protection and promotion of human rights and human dignity is considered as a common good of humanity as a whole, then the rights of children also constitute a common good, representing, as it were, the hope in the future of humankind. At the same time, the preservation of our planet as a common good is generally recognized. Thus, the interrelationship between children’s rights and climate change touches on questions which are at the heart of this debate. This chapter will first analyze which of the rights included in the CRC are most likely to be negatively affected as a result of climate change (II). It will then examine the obligations of States under human rights law and in particular the CRC, and consider their relevance for States’ policies in response to climate change (III), while also examining the commitments taken towards children and ‘future generations’ in the international climate negotiations (IV). Finally, this chapter will consider whether a reconceptualization of these rights is required, taking account of the challenges posed by climate change, and present some initial suggestions for such a reconceptualization (IV). II.  WHICH CHILDREN’S RIGHTS ARE ADVERSELY AFFECTED BY CLIMATE CHANGE?

In the broader context of human rights, children’s rights enjoy a very high degree of commitment by States, as evidenced by the near-universal

  Children’s Rights and Climate Change  363 ratification of the CRC.1 Children’s rights are also recognized in other human rights instruments. At the regional level, the European Convention on Human Rights (ECHR)2 and the African Charter on the Rights and Welfare of the Child (hereafter: African Charter)3 are of particular importance in this respect. However, it should be noted, in the first place, that the ECHR is almost exclusively concerned with civil and political rights, whereas the CRC also covers social and economic rights. Secondly, the ECHR generally adopts an adult-oriented approach, even where the rights of children are explicitly mentioned.4 Nevertheless, the fact that the rights included in the ECHR extend to both adults and children should be taken into account in the analysis of this chapter. In particular, the possibility of States and individuals to bring cases before the European Court of Human Rights provides better judicial remedies than those available under the CRC, especially since the judgments of this Court are legally binding, and are implemented in domestic law subject to strict monitoring by the Committee of Ministers of the Council of Europe. This is not the case for the conclusions and General Comments of the Committee on the Rights of the Child. As for the African Charter, the situation is quite different, on two points. On the one hand, it is specifically focused on children’s rights, and it covers both civil and political rights, and social and economic rights. The African Charter was adopted just one year after the CRC, and has therefore benefitted from the reflections underway at the international level. On the other hand, the enforcement mechanisms under the African Charter are less stringent than those under the ECHR, since the decisions of the African Committee on the Rights and Welfare of the Child are not legally binding. Moreover, it should be noted that several universal human rights instruments of a general scope also protect the human rights of children, since they apply to all people regardless of their age, such as the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).5 Considering that the CRC is universal in scope, and that it comprehensively covers a broad range of rights, the following analysis of the risks posed by climate change on children’s rights will be based on this latter instrument. If the same rights are also covered by the ECHR, the African Charter or the other above mentioned instruments, this will also 1   Convention on the Rights of the Child, adopted on 20 November 1989, entered into force 2 September 1990. Only the USA, South Sudan and Somalia have not ratified the CRC. 2  Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, entered into force on 3 September 1953. 3   OAU Doc CAB/LEG/24.9/49 (1990), entered into force on 29 November 1999. 4   See Fortin J, Children’s Rights and the Developing Law (London, 2003) 54–55. 5   ICCPR, adopted on December 16, 1966, and entered into force on March 23, 1976; ICESCR, adopted on 16 December 1966, entered into force on 3 January 1976.

364  Christine Bakker be indicated, since it may be relevant for the possibilities of enforcement, and for the ensuing obligations of States to ensure these rights. The CRC, which combines civil and political, economic, social and cultural rights, distinguishes four categories of rights: guiding principles, survival and development rights, protection rights, and participatory rights.6 Although all child rights may be adversely affected by climate change, some rights are particularly at risk from climate change related setbacks.7 A distinction must be made, in this regard, between the adverse impacts of climate change and its consequences on the one hand, and the adverse effects of policies aimed at responding to climate change on the other. A.  Guiding Principles The main guiding principles are the right to non-discrimination (Article 2, CRC),8 the best interests of the child (Article 3) and the general obligation of States Parties to ensure the implementation of the rights recognized in the CRC (Article 4). It could be argued that all these principles, which are also integrated into the other rights of the CRC, are at risk from climate change, or more specifically from climate-related policies. The right to nondiscrimination may be violated, in particular, if the policies adopted in response to climate change do not duly take account of the special needs of children compared to those of adults; of the different needs of girls and boys; or if the rights of indigenous children or children of minority groups are not respected.9 The principle to adhere to the ‘best interests of the child’ has given rise to much debate, both in academic literature and before national courts, since the term ‘best interests’ is not defined in the CRC.10 In general terms, it could be argued that the best interests of children are negatively affected 6   This classification is used by UNICEF and is considered adequate for the purpose of this analysis. Some authors suggest using other classifications, see Fortin J (n 4) 38–39. 7  See Guillemot J (UNICEF Climate Change Adviser) and Burgess J (UNICEF-UK Climate Change Policy and Research Officer), ‘Child Rights at Risk: The Case for Joint Action with Climate Change’, available at , and Unicef UK, Climate Change: Children’s Challenge, 2013, available at http://www.unicef.org.uk/Documents/Publication-pdfs/unicef-climate-changereport-2013.pdf. 8   The right to non-discrimination is also included in Article 14 of the ECHR and Article 3 of the African Charter. 9   Guillemot J and Burgess J (n 7) 3. 10  See Wolf J, ‘The Concept of the “Best Interest” in Terms of the UN Convention on the Rights of the Child’ in Freeman M and Veerman P (eds), The Ideologies of Children’s Rights (Dordrecht, 1992) 125 ff; Camtwell N, ‘Are Children’s Rights Still Human?’ in Invernizzi A and Williams J (eds), The Human Rights of Children: From Visions to Implementation (Farnham, 2011) 37 ff, 49–50; Nolan A, Children’s Socio-Economic Rights Democracy and the Courts (Oxford/Portland, 2011) 222–23. While this principle is not included in the CRC, it is also enshrined in Article 4 of the African Charter.

  Children’s Rights and Climate Change  365 when the effects of climate change lead to an increased risk of disease and of natural hazards disrupting education and impacting child protection.11 However, it should be kept in mind that this principle is directly linked to ‘all actions concerning children, whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies,’12 in which these best interests ‘shall be a primary consideration.’13 Therefore, it would seem more appropriate to consider adherence to this principle in terms of policies and legislation or other actions taken to mitigate the effects of climate change. In this perspective, there is a risk that in climate-related policies, which could arguably fall within the above mentioned term ‘actions concerning children’, the best interests of the child are not sufficiently taken into account. The third principle explicitly calls for the adoption of all appropriate legislative, administrative and other measures for the implementation of the rights of the Convention. Together, these three guiding principles provide the framework for the positive obligations of States to protect and ensure the rights of the child included in the CRC. These will be further considered below, in section III. B.  Survival and Development Rights The survival and development rights include rights to adequate food, shelter, clean water, formal education, primary health care, leisure and recreation, cultural activities, and information about their rights. Specific articles address the needs of child refugees, children with disabilities and children of minority or indigenous groups. Of these rights, the right to life is the most fundamental. The CRC requires that all States Parties shall ‘shall ensure to the maximum extent possible the survival and development of the child.’14 Clearly, a child’s right to life and to survival may be directly at risk from climate change related disasters, such as floods or extreme weather conditions. Other, more indirect risks to these rights include increased probabilities of diseases and hunger, both as a result of disasters, and of more structural changes in the living environment that are caused or exacerbated by global warming, such as drought. Also children’s right to health (Article 24, CRC)15 may be affected by these same conditions. Specific health effects of climate change include the following:   In this sense, see Guillemot J and Burgess J (n 7) 3.   Article 3(1), CRC, emphasis added. 13   Ibid. 14   Article 6(2), CRC. The right to life is also included in Article 2, ECHR; Article 5(1), African Charter; Article 6, ICCPR. 15   The right to health is also included in Article 14, African Charter, and in Article 12, ICESCR. 11

12

366  Christine Bakker (i)  A global increase of temperatures will lead to changing disease patterns, especially the spreading of tropical diseases to wider areas. Children are the most vulnerable to diseases and they suffer the highest death rates. Also diseases transferred by parasites, such as malaria, will spread as a result of rising temperatures.16 (ii) Waterborne illnesses, in particular diarrhoea, constitute a significant risk to child health. There is a high correlation with heavy rain events and waterborne illness. Worldwide, there are approximately four billion cases of diarrhoea each year, causing 1.8 million deaths. These deaths occur mostly among children under the age of five years and represent 15 per cent of all deaths in this age group in developing countries. According to the World Health Organization, it is certain that these problems would be affected adversely by extreme precipitations events stimulated by global warming and climate change.17 The right to health sustaining conditions, including nutritious food and clean water, is a related right (Article 24(2c), CRC).18 Examples of risks caused by climate change are: (i) Both the rise in sea-level and increased ultra-violet radiation may disrupt marine habitats and aquatic food chains, thereby affecting the food supplies of many people, especially in Asia, where fish constitutes 40 per cent of all consumed animal protein, potentially leading to increased protein malnutrition in children19; (ii) Water supplies may be affected by rising sea levels; salt water will contaminate fresh water, including aquifers that provide water for domestic and agricultural purposes, potentially reducing the availability of clean drinking water; (iii) The rising temperatures will result in changes in agricultural production, both through the increased diseases affecting crops, and through drought and desertification, which may lead to shortages in food supply and ultimately to hunger. The right to an adequate standard of living (Article 27) is at risk from climate change as well. Rising sea levels, flooding and hurricanes may destroy housing and create unsafe living conditions for children.20 Moreover, climate-related developments may also have a negative impact on children’s 16   UNEP and UNICEF, The State of the Environment: Children and the Environment (New York/Nairobi, 1990) p 40, and World Health Organization, ‘Global Climate Change & Child Health, Children’s Health and the Environment, WHO Training Package for the Health Sector World Health Organization’, , last updated in December 2009, p 33. 17   WHO 2009 (n 16) p 29. 18   This right is also recognized in Article 14(c) and (d) of the African Charter, and in Article 11, ICESCR. 19   WHO 2009 (n 16) p 41. 20   Guillemot J and Burgess J (n 7) 3.

  Children’s Rights and Climate Change  367 right to education (Article 28, CRC).21 Children may be kept from attending school when the effects of climate change negatively affect the living conditions of their families, and their parents require them to work to support the family. Moreover, children’s access to education can be reduced when schools are destroyed by floods, hurricanes, or by other disasters. Another aspect of this right is that the education of the child shall be directed to, inter alia, ‘[t]he preparation of the child for responsible life in a free society (. . .),’22 and ‘[t]he development of respect for the natural environment.’23 Therefore, children also need to be educated about the risks of climate change, and about their responsibilities, and their possibilities to contribute to changing behaviour and policies aimed at responding to such risks. All the above mentioned risks are higher in countries that are more vulnerable to the effects of climate change, especially in developing States, where the scarcity of resources and capacities to address these developments further aggravates their effects. Finally, the right to indigenous culture and language needs to be mentioned. Children of indigenous origin, or those belonging to an ethnic, religious or linguistic minority or group, ‘shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language’.24 Indigenous populations often live in climate-sensitive ecosystems, such as the Arctic or in island States, and they are highly attached to traditional methods of food production, which are closely related to their living environment. Effects of climate change, such as the loss of land and of traditional species, may negatively influence the right of children of indigenous populations to their cultural identity.25 C.  Protection Rights These rights include protection from all forms of child abuse, neglect, exploitation and cruelty, including the right to special protection in times of war and protection from abuse in the criminal justice system. It has been argued that climate change ‘will induce stress on livelihoods and communities that can potentially result in children being at risk of exploitation and violence, for example increased child labour, abduction, recruitment into fighting forces, sexual violence, and labour migration.’26 The link between such risks and climate-related factors is clearly less direct 21   Also included in Article 2, ECHR, First Protocol, in Article 11, African Charter, and in Article 13, ICESCR. 22   Article 29(1)(d), CRC. 23   Article 29(1)(e), CRC. 24   Article 30, CRC. 25   Guillemot J and Burgess J (n 7) 3. 26   Ibid.

368  Christine Bakker than with the ‘survival and development rights’ discussed above. However, the risk that climate change-related developments may trigger armed conflicts, or become an additional factor in conflicts about territorial or other claims, has long been recognized. In fact, these indirect risks may be very high, because climate change is exacerbating conflicts for access to water and agricultural resources, and has led to the displacement of ‘envir­ onmental refugees’. Children’s rights to protection in armed conflicts are then also at risk. In this regard, the CRC states that State Parties shall, in accordance with their obligations under international humanitarian law, ‘take all feasible measures to ensure protection and care of children who are affected by an armed conflict’.27 In this context, another indirect risk is that children may be recruited as child-soldiers, or otherwise be used to actively participate in the hostilities of an armed conflict.28 D.  Participation Rights Participation rights include the right to express opinions and be heard,29 the right to information,30 and the freedom of association.31 These rights are meant to help children bring about the realization of all their rights and to prepare them for an active role in society. In this regard, Article 12 CRC provides that: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Climate change clearly falls within the scope of ‘all matters affecting’ children. Indeed, the children of today, and those of the next generations, will bear the social, economic and environmental consequences of inadequate climate change decision-making. Therefore, the above mentioned right should be interpreted to cover also the right of children to express their views on how they, their families, their communities, their governments, and even the international community should respond to climate change and its consequences.

  Article 38(4), CRC; see also Article 22, African Charter.   Article 38(2) and (3), CRC; the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict (2000); Article 22 (2), African Charter. 29   Article 12, CRC; Article 4(2), African Charter. 30   Article 13, CRC; Article 10, ECHR; Article 19, ICCPR. 31   Article 15, CRC; Article 8, African Charter (although this right is restricted to being ‘in conformity with the law’); Article 11, ECHR; Article 21, ICCPR. 27 28

  Children’s Rights and Climate Change  369 As this overview has shown, a number of children’s rights, as recognized by the CRC, are either directly or indirectly at risk from climate change and its effects. Especially the so-called ‘survival and development rights’ may be directly affected by these phenomena, while the ‘protection rights’ are more indirectly at risk. Children’s ‘participatory rights’ give them a voice in all matters affecting them, and it is argued that climate change falls within the scope of this right. III.  OBLIGATIONS OF STATES TO ENSURE CHILDREN’S RIGHTS AND THEIR LINK WITH CLIMATE CHANGE

The human rights instruments discussed above all include obligations for the States that are Parties to them. Apart from the obligations to refrain from violating these rights themselves, or ‘negative obligations’, they also include ‘positive obligations’, or ‘due diligence obligations’. These latter obligations require States to protect these rights for all persons within their jurisdiction, which includes the duty to prevent their violation by others, and to provide an effective remedy when these rights have been violated. A.  Positive Obligations of States as Interpreted by Human Rights Monitoring Bodies The European Court of Human Rights has extensively interpreted the positive obligations of States, including in a number of cases concerning children. In this regard, the Court held, for example, that it is not enough for States to refrain from the intentional and unlawful killing of a child under Article 2 ECHR, they must also take appropriate steps to safeguard their life.32 In this same sense, the Court held that social services departments, in order to protect children from inhuman or degrading treatment through abusive parental behaviour, must, when they are aware of such behaviour, intervene to prevent its continuation.33 More generally, the Court has held that States must adopt legislative and administrative measures to ensure that the rights of the Convention are respected, also in the relations between individuals.34 Such positive obligations have especially been confirmed with regard to certain rights under the Convention, 32  ECtHR, Osman v United Kingdom, Judgment of 28 October 1998, Case No 87/1997/871/ 1083, para 115. 33  ECtHR, Z v United Kingdom, Judgment of 10 May 2001, Application No 29392/95, paras 73–74. 34  ECtHR, A v United Kingdom, Judgment of 23 September 1998, 00/1997/884/1096, X and Y v the Netherlands, Judgment of 25 March 1985, Application No 8978/80, para 23. For a detailed analysis on this point, see Fortin J (n 4) 64–65.

370  Christine Bakker including the right to life, the freedom from inhuman or degrading treatment, and the right to physical integrity. The United Nations Human Rights Committee (HRC), which monitors the implementation of the ICCPR, has essentially adopted the same approach.35 Also the monitoring body for the ICSECR, the United Nations Committee on Economic, Social and Cultural Rights has clarified the positive obligations of States, emphasizing that besides the adoption of legislation, other measures which may also be considered ‘appropriate’ include, but are not limited to, administrative, financial, educational and social measures.36 Despite the fact that the views of these two committees are not legally binding, authoritative interpretations of the provisions of the two human rights covenants provide significant guidance for States. B.  Positive Obligations of States included in the CRC In the CRC, such positive obligations of States are explicitly included throughout the text. As already mentioned above, the guiding principles of the Convention specifically require the States Parties to ensure: (i) nondiscrimination of children, (ii) that the best interest of the child ‘shall be a primary consideration’ in all actions concerning children, and (iii) the adoption of all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention. This latter principle, included in Article 4, is a general commitment of the Parties to the Convention. However, the second part of this Article introduces a limitation with regard to economic, social and cultural rights, stating that for such rights, ‘States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.’ This wording is similar to the corresponding provision in the ICESCR.37 It has been observed that this formulation clearly acknowledges that the resource implications of certain provisions, in particular the right to the highest attainable standard of health and to health facilities, and the right of every child to an adequate standard of living, ‘may rule out their immediate or even long-term fulfilment.’38 Indeed, relating to the right to health, the text of the CRC confirms that States Parties undertake to promote and encourage international co-operation ‘with a view to achieving progressively the full realization’ of this right.39 These restrictions clearly 35   General Comment No 31 [80],
The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004. 36   CESCR, General Comment No 3, The Nature of States Parties Obligations, 14 December 1990, para 7. 37   ICESCR, Article 2(1). 38   Fortin J (n 4) 44. 39   CRC, Article 24(4), emphasis added.

  Children’s Rights and Climate Change  371 limit the possibilities for enforcing children’s social, economic and cultural rights. However, the Committee on the Rights of the Child has clarified the positive obligations of States included in the CRC, including those related to the right to health. C.  The Committee on the Rights of the Child The Committee on the Rights of the Child (hereafter ‘the Committee’) is charged with the monitoring of the CRC’s implementation, through the examination of two-yearly reports by the States Parties. It may also issue General Comments on specific rights included in the CRC or in its two optional protocols, or on other points related to their implementation. On 19 December 2011, the UN General Assembly approved a third optional protocol on a Communications Procedure, which will allow individual children to submit complaints regarding specific violations of their rights under the Convention and its first two optional protocols. The Protocol opened for signature in 2012 and will enter into force upon ratification by 10 UN Member States.40 In March 2013, the Committee issued a General Comment on children’s right to health and to health sustaining conditions. It acknowledges that in accordance with Article 4 of the CRC, States Parties shall fulfil the entitlements contained in the right to health to the maximum extent of their available resources and, where needed, within the framework of international co-operation. In this regard, the Committee held that all States, regardless of their level of development, are required to take immediate action to implement these obligations, and even where the available resources are demonstrably inadequate, States are still required to undertake targeted measures to move as expeditiously and effectively as possible towards the full realization of children’s right to health. Irrespective of resources, States have the obligation to not take any retrogressive steps that could hamper the enjoyment of children’s right to health.41

Interestingly, the Committee also specifically refers to climate change in relation to children’s right to health, drawing attention to the relevance of the environment, beyond environmental pollution, to children’s health. It states: Environmental interventions should include addressing climate change as this is one of the biggest threats to children’s health and to exacerbating health 40   Optional Protocol to the Convention on the Rights of the Child on a Communication Procedure, . 41  Committee on the Rights of the Child, General Comment No 15 (2013), CRC/C/ GC/1514 March 2013, para 72.

372  Christine Bakker disparities. States should, therefore, put children’s health concerns at the centre of their climate change adaptation and mitigation strategies.

The recommendation that States should put children’s health at the centre of their climate change adaptation and mitigation policies, translates the interconnectedness between these two concerns into a coordinated policy strategy. It could be argued that the same reasoning holds true for all policies aiming to ensure and to protect children’s rights. In other words, the risks posed by climate change and its consequences to the enjoyment of children’s rights as outlined in the previous section – including risks to children’s right to life, to their right to education, etc – would call for a systematic coordination of climate related policies with policies aiming to ensure children’s rights. The Committee on the Rights of the Child has, at least in one case, asked a State to provide information on the measures taken and foreseen to minimize the impact of climate change on the enjoyment of children’s rights, in particular measures to protect children in emergency situations and to secure safe drinking water and sanitation. This question was addressed to the Pacific island State Tuvalu, which is seriously at risk from a rising sea level.42 If the Committee were to include such questions systematically in its list of issues to be taken up in connection with the consideration of the reports submitted to it, it would thereby considerably contribute to raising awareness about the interconnectedness of climate change and children’s rights. It is, in the first place, at the national level that coordination between climate-related policies and policies aimed at implementing children’s rights should be achieved. However, it would seem that such a coordinated approach would also be appropriate at the regional and international levels. In this regard, the question could be asked whether the positive obligations of States under human rights law, and in particular those related to children’s rights, can be considered to have any bearing on the positions that States adopt in their international efforts to combat climate change. This question will be addressed in the next section. IV.  CLIMATE NEGOTIATIONS AND CHILDREN’S RIGHTS

A.  References to Future Generations and to Children in the Climate Negotiations The United Nations Framework Convention on Climate Change (UNFCCC),43 which provides the international legal framework for the 42   List of issues to be taken up in connection with the consideration of the initial report of Tuvalu (CRC/C/TUV/1), CRC/C/TUV/Q/1, 8 February 2013, para 10. 43   UNFCCC, adopted on 9 May 1992, entered into force on 21 March 1994.

  Children’s Rights and Climate Change  373 international climate negotiations, does not mention children or children’s rights. However, the term ‘future generations’ is included three times in this Convention. In its Preamble, the UNFCCC recalls the resolutions of the UN General Assembly ‘on protection of the global climate for present and future generations of mankind’.44 The signatory States also affirm to be ‘[d]etermined to protect the climate system for present and future generations.’45 The Convention also mentions, as one of its guiding principles, that the Parties ‘should protect the climate system for the benefit of present and future generations of humankind.’46 However, in the sub­ sequent negotiations of the Conference of the Parties (COP), further references to future generations or to children are scarce. At the Climate Conference held in Bali in 2007, the UN Secretary-General called on the States Parties to take decisive action in responding to climate change, adding that [t]his is the moral challenge of our generation. Not only are the eyes of the world upon us. More important, succeeding generations depend on us. We cannot rob our children of their future.47

In a decision taken during the Climate Conference in Cancún, the COP affirmed that: [R]esponses to climate change should be coordinated with social and economic development in an integrated manner, with a view to avoiding adverse impacts on the latter, taking fully into account the legitimate priority needs of developing country Parties for the achievement of sustained economic growth and the eradication of poverty, and the consequences for vulnerable groups, in particular women and children.48

This statement is specifically directed to the needs of developing countries and to vulnerable groups, also in these countries. Considering that the rights of children, in particular their survival and development rights, are mostly at risk from climate change in developing countries, this is a significant affirmation. Moreover, in another decision taken in Cancún, States Parties are invited: (d) To enhance the involvement of, and create training opportunities for, groups with a key role in climate change communication and education, including journalists, teachers, youth, children and community leaders;

  Ibid, Preamble, para 11.   Ibid, Preamble, last para. 46   Ibid, Article 3 (1). 47   Statement by the UN Secretary-General, Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007, FCCC/CP/2007/6, 14 March 2008, p 29. 48   Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010, FCCC/CP/2010/7/Add. 2, 15 March 2011, Section E. 44 45

374  Christine Bakker (e) To foster the participation of women, youth, indigenous peoples, civil society groups and relevant stakeholders in decision-making on climate change at the national level and their attendance at intergovernmental meetings, including sessions of the Conference of the Parties, the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol and the subsidiary bodies.49

These recommendations, which are made in response to Article 6 of the UNFCCC,50 are of particular interest for the analysis in this chapter, since they correspond to the right to education, as well as to the participatory rights of children included in the CRC. In particular the invitation to foster the participation of, inter alia, youth in decision-making on climate change both at the State level, and at the international level, through their attendance of sessions of the COP, is quite far-reaching. While this is certainly a positive step, in practice, the participation of children is limited to taking part in the parallel discussions, which are open to civil society, including NGOs. Moreover, in a decision adopted in Durban in 2011, the COP: Further urges Parties to give full consideration to the positive and negative impacts of the implementation of response measures to mitigate climate change on society and on all vulnerable groups, in particular women and children.51

Here, the emphasis is put on the impacts of the ‘implementation of response measures’ on vulnerable groups, inter alia, children. However, no further details are provided on what these impacts may be, nor what measures would be recommended in order to respond to them. It can therefore be concluded that (i) while the need to preserve the Earth for future generations is explicitly recognized in the UNFCCC; (ii) in the subsequent climate negotiations, references to future generations and to children are scarce and quite general in nature; (iii) nevertheless, in the context of education and capacity-building efforts, the COP has ambitiously invited States to actively involve children and youth in climate change communication and education, as well as in decision-making processes at the national and international levels. B.  The Relevance of Positive Obligations of States on Child Rights for Climate Negotiations The existing case law and views of the human rights’ monitoring bodies on the scope of positive obligations of States has not, so far, addressed the   Ibid. Addendum 2, Decision 7/CP.16, paras 2(d) and (e).   This Article requires States to promote and facilitate the development and implementation of education, training and public awareness programmes about climate change. 51   Report of the Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011, FCCC/CP/2011/9/Add. 1, 15 March 2012, para 90. 49 50

  Children’s Rights and Climate Change  375 question whether such obligations also require States to take certain measures at the international level, eg to actively engage in international negotiations. This would perhaps be an overly extensive interpretation of the concept of due diligence obligations. It could, however, be argued that if it is recognized, and objectively proven by international, independent experts, that the enjoyment of children’s rights is negatively impacted by climate change, the only way to effectively respond to this threat is through international action. Therefore, according to this line of reasoning, it would fall within the scope of the ‘measures that are necessary for the implementation’ of children’s rights to actively engage in inter­national climate negotiations, specifically addressing the adverse impact of climate change on the rights of children, in particular their survival and development rights. Another, less ‘extensive’ interpretation of the concept of positive obligations deriving from human rights instruments, would be that the ‘measures necessary for the implementation’ of children’s rights, include the implementation of commitments taken at the international level in the field of climate change, in particular those that specifically address the impacts of climate change on children. In any case, it is the responsibility of every State to ensure that it complies with all its international commitments, whether they are derived from human rights instruments, or from international negotiations, including on climate change. Therefore, the conclusion seems to be warranted that the positive obligations under human rights law, including the CRC, do not entail any obligation for States to engage in negotiations at the international level with a view to ensuring these human rights. On the other hand, the relevant provisions of the various human rights instruments do provide a basis that can be used by States to reinforce their positions during climate negotiations. In other words, when defining and presenting their positions during international climate negotiations, States could use their obligations under human rights law with respect to children’s rights, to support a more focused consideration of the impacts of climate change and of mitigation and adaptation policies on children at the international level. Considering that only very few references have been made to children in climate negotiations, as outlined in the previous section, it seems that such a link between the duties of States to ensure children’s rights on the one hand, and their efforts to mitigate climate change on the other, has not explicitly been established so far.52 Delegations could, for example, introduce this approach in the context of the negotiations on measures taken in response to Article 6 of the 52   In order to draw more detailed conclusions on this point, an examination of the negotiating positions taken by various delegations during the climate negotiations would be required.

376  Christine Bakker UNFCCC, which requires States to promote and facilitate the development and implementation of education, training and public awareness programs about climate change. It is in this connection that the most far-reaching statements on the participation of children in the decisionmaking on climate policies were made (see section, IV A, above). Moreover, States could, through the appropriate channels, request the Intergovernmental Panel on Climate Change (IPCC) to include in the gathering of scientific evidence on the impacts of climate change, also the effects of global warming on children’s health, and other aspects of their survival and development rights. At the same time, non-governmental organizations (NGOs) that engage in influencing governments during such negotiations could also bring to the fore the argument that States also have obligations under human rights law to ensure children’s rights, and point to the adverse impacts of climate change on the enjoyment of these rights. This could be done by representatives of NGO’s who have access to national delegations, both in the preparation phase of the negotiation positions, and during the negotiations themselves. Moreover, ‘side events’ are often organized in the margin of meetings of the Conference of the Parties, in which civil society organizations present their views and make public statements.53 These gatherings provide a forum where interested NGOs, in particular those directly concerned with children’s rights, could stress these points. Finally, such organizations can also make ‘civil society submissions’ to the COP, in which they can bring such considerations to the attention of the Parties.54 V.  IS A RECONCEPTUALIZATION OF CHILDREN’S RIGHTS REQUIRED?

In the face of unequivocally proven and serious threats such as climate change on the enjoyment of children’s rights, the question can be asked whether the current legal instruments protecting these rights are still adequate, or whether they need to be revised so as to better respond to current challenges. In terms of chronology, the CRC was adopted a few years before the Earth Summit in Rio de Janeiro, and the adoption of the UNFCCC in 1992. Therefore, consensus on the need to ensure children’s rights in a more comprehensive way, more or less coincided with the recognition that climate change required a coordinated international response. However, the two 53   For an analysis of the role of NGOs and other non-state actors in climate negotiations, see Savaresi A, ‘The Role of EU and US Non-State Actors in the Global Environmental System. A Focus on Climate Change’ at . 54   For examples of such submissions, see .

  Children’s Rights and Climate Change  377 conventions were formulated in separate forums, and in those early years the interconnectedness between the two ‘fields’ was not yet identified. Now that the twentieth anniversary of the CRC’s ratification has been celebrated, questions have been raised both in academic literature and in political discourse, about whether this Convention requires a revision in order to adjust it to current challenges.55 However, climate change has not often been mentioned among the factors that would require such a reconceptualization. One aspect that deserves some reflection is what could be called the ‘temporal dimension’ of children’s rights in relation to climate change. This term refers to two considerations related to the duration of the rights of children. First, for today’s children, the rights guaranteed by the CRC have a ‘limited duration’, since they are only valid until a child has reached the age of eighteen. Therefore, immediate responses are required in order to ensure the enjoyment of these rights. Secondly, these same rights need to be guaranteed for the next generations of children, and the threats of climate change clearly endanger the enjoyment of these rights in the future. As for the ‘limited duration’, this is of course an inherent aspect of the concept of children’s rights per se. The recognition of rights pertaining to people within the age range of childhood necessarily involves a limited duration of these rights. In this context, a controversial point is when these rights actually begin, and in particular whether they can be considered to pertain also to an unborn child.56 On this point, the ‘relevant treaty and case law on this issue indicates a predominant view that “childhood” is protected from birth, rather than beforehand’.57 Nevertheless, this discussion is extremely important, considering the potential impacts of new technologies, especially in the field of biotechnology, for decisions regarding unborn children. Therefore, another dimension is added to the ethically sensitive question of the right to life, protected under the CRC and other human rights instruments should be considered to apply also to the unborn child. Even though the effects of climate change on unborn children are not so evident as the other risks outlined in section III of this chapter, studies have proven that high levels of air pollution from greenhouse gas emissions significantly increases the risk of miscarriages and deformations.58 55   See for example, Hanson K and Nieuwenhuys O, Reconceptualizing Children’s Rights in International Development (Cambridge, 2013), putting forward the concepts of ‘living rights, social justice and transition’. 56   Fortin J (n 4) 314. 57   Nolan A (n 10) 3. 58  Rylander C, Odland JO and Manning Sandanger T, ‘Climate Change and the Potential Effects on Maternal and Pregnancy Outcomes: An Assessment of the Most Vulnerable – the Mother, Fetus, and Newborn Child’, Global Health Action, 2013, available at .

378  Christine Bakker For the purpose of the present discussion, another important question is whether the limited duration of children’s rights would not require a more active response of States, based on a stronger sense of urgency to implement these rights so that the children of today can enjoy them, as well as the children of tomorrow. Admittedly, this depends more on the implementation of these rights than on their formulation or conceptualization. At the same time, based on the findings in this chapter, it could be argued that a reconceptualization of the positive obligations of States, linking them explicitly with efforts at the international level on the one hand, and requiring a systematic coordination between policies implementing children’s rights and climate-related mitigation and adaptation policies on the other, would be a positive development. Considering that in the CRC, many rights are formulated in such a way that they are directly linked to the measures to be taken by States in order to ensure them, a reformulation of the State obligations would imply also a reformulation of the rights themselves. Such a reinterpretation of the existing provisions of the CRC would not only readjust them to the ‘new’ challenges of the present time; it would also strengthen the legal basis for children – and for civil society organizations – to call on their governments to protect their rights from the mounting risks of climate change. With respect to the second aspect, namely the need to guarantee children’s rights also for future generations, this implies that these rights also have an ‘unlimited duration’. There is no question that the CRC aims to ensure the rights enshrined therein for the next and future generations of children as well. However, no explicit reference is made to the fact that States may need to adopt certain measures today, so that next generations of children can enjoy their rights under the Convention too. Here again, the risks of climate change for the enjoyment of children’s rights as indicated in this chapter, clearly demonstrate the need for a coordination of climate-related action and policies to implement children’s rights. An explicit reflection of this need in the positive obligations of States, as mentioned above, would be a step in the right direction. Such an integrated approach would also allow for a more explicit identification of the elements to be taken into account in order to ensure the ‘best interests of the child’. It could even be argued that a continuous assessment of the effects of climate change on the enjoyment of each right of the Convention, would be necessary in order to ensure that these ‘best interests’ are duly taken into account. In this regard, the question could be asked whether the debate on global common goods may offer some further guidance. If ensuring the rights of children, in the broader context of human rights, is considered as a common good of humanity as a whole, and the same is true for preserving our planet for present and future generations, then a continuation of the present ‘fragmented’ approach in addressing them would be unacceptable.

  Children’s Rights and Climate Change  379 In practical terms, a reconceptualization of children’s rights, and in particular of the obligations of States, could be achieved in various ways. The first possibility would be to renegotiate the text of the CRC as a whole, which would allow for a reformulation of the positive obligations as mentioned before, as well as other adjustments to current challenges. The risk would be, however, that the rights as agreed in the present text may be ‘watered-down’, thereby effectively diminishing the protection of children’s rights. A second possibility would be to negotiate and adopt an Optional Protocol on Children’s Rights and Climate Change, in which States willing to take more far-reaching commitments could agree on a set of more specific obligations in this field. The downside of this solution is its optional nature, thereby risking its ratification by a relatively small number of States. A third possibility would be that the Committee on the Rights of the Child adopt a new General Comment on the obligations of States, in which it urges States Parties to systematically integrate their policies on the implementation of children’s rights with their climaterelated policies. This recommendation could also be included more systematically in the recommendations of the Committee in its reports on the review of the periodic reports of States. VI.  CONCLUDING REMARKS

This Chapter discusses the question whether a reconceptualization of children’s rights is required in order to better respond to ‘new’ challenges, such as climate change. It concludes that the temporal dimension of children’s rights, according to which these rights have both a ‘limited’ and an ‘unlimited’ duration, requires especially a reformulation of the positive obligations of States, in the sense that States should be required to (i) ensure a more rapid and effective implementation of children’s rights in order to ensure these rights for the children of today, and (ii) to systematically coordinate their policies aiming at the implementation of children’s rights with their climate-related mitigation and adaptation strategies, with a view to ensuring children’s rights also for future generations. Such a reconceptualization could be achieved through a renegotiation of the CRC; through the adoption of an Optional Protocol to the CRC on children and climate change; or through a more systematic insistence by the Committee on the Rights of the Child on the need for such a coordination of policies. An attempt is made to clarify the relationship between children’s rights and climate change. The Chapter identifies which rights of the child included in the CRC are most at risk from climate change, its consequences, and the policies aiming to respond to global warming. It concludes that the so-called survival and development rights, including

380  Christine Bakker children’s right to life, and the right to the highest possible standard of health are especially threatened by climate change. However, also children’s protection rights, such as their right to protection in situations of armed conflict, and their participatory rights, especially the ‘right to a voice’, are at risk from climate change. Moreover, the obligations of States as derived from the CRC and from other human rights instruments are examined, which require States to take the necessary legislative, administrative and other measures necessary for the implementation of children’s rights. Even though the relevant monitoring bodies have interpreted these obligations in an extensive manner, they do not, by themselves, require States to make efforts at the international level, eg in the context of climate negotiations, to create the maximum conditions for ensuring the enjoyment of children’s rights. However, an analysis of the references to children and to ‘future generations’ in the climate negotiations based on the UNFCCC reveals that the COP, in the same sense as the Committee on the Rights of the Child, has recognized the impacts of climate change and the policies responding to it, on ‘vulnerable groups’, including children, calling for a coordinated policy approach. The urgency and irreversibility of the risks posed by climate change require that alongside a process of reconceptualization, as mentioned above, also immediate steps are taken to ensure that climate policies adequately address the needs and rights of children, both at the national level, and in the context of international action, including through climate negotiations.

18 A Human Rights-Based Approach to Climate Change? Insights from the Regulation of Intangible Cultural Heritage OTTAVIO QUIRICO

Look deep into nature, and then you will understand everything better. Albert Einstein

A

I. INTRODUCTION

RECENT STUDY of the United Nations (UN) seeks to establish a framework of analysis for the impact of climate change on human rights and their reciprocal relationships. Works on this issue only started in 2007 and will continue.1 Climate change is likely to affect several human rights and, although the scope of such an impact has not been fully explored yet, prima facie it might be so important as to radically change the human rights scenario. Basically, the relationship between climate change and human rights raises three different legal issues. A first one concerns the necessity of assessing whether or not human rights compel States to take adaptation and mitigation measures according to the responsibility to protect fundamental rights. A second question regards the state obligation to respect human rights in adopting measures against climate change. A third problem relates to the possibility of adopting measures to make States responsible for human rights violations owing to greenhouse gas (GHG) emissions. 1   See United Nations High Commissioner for Human Rights, ‘The Relationship between Climate Change and Human Rights’, Report, A/HRC/10/61, 15 January 2009. See also Knox JH, ‘Linking Climate Change and Human Rights at the United Nations’ (2009) Harvard Environmental Law Review 477 ff.

382  Ottavio Quirico The present chapter concerns exclusively the first aspect of the overall problem. It focuses on the example of intangible cultural heritage, which can nowadays be considered a human right in light of fundamental rules such as Article 27 of the Universal Declaration on Human Rights (UDHR), according to which ‘everyone has the right freely to participate in the cultural life of the community’, and Article 15 of the International Convention on Economic, Social and Cultural Rights (ICESCR), which provides for the right of everybody to ‘take part in cultural life’. More specifically, this chapter seeks to assess to what extent state obligations to adopt measures against climate change stem from the right to culture as it is specified, in particular, in the 2003 Convention on the Safeguarding of Intangible Cultural Heritage (CSICH) and complementary international instruments. II. THE IMPACT OF CLIMATE CHANGE ON INTANGIBLE CULTURAL HERITAGE

The term ‘culture’ is elusive in human rights law. Culture may be defined as ‘the total range of activities and ideas of a group of people with shared traditions that are transmitted and reinforced by members of a group’ or ‘the artistic and social pursuits, expression, and tastes valued by a society or class, as in the arts, manners and dress’.2 Under Article 2(3) of the CSICH, intangible cultural heritage – or ‘living heritage’ – consists of: [T]he practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognise as part of their cultural heritage.3

According to Article 2(2) of the CSICH, intangible cultural heritage is manifested through practices that include: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

Intangible cultural heritage spawns a set of claims, which encompass the right to take part in cultural life, the right to enjoy the benefits of scientific progress, the right to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production, and the   Collins English Dictionary.   Convention for the Safeguarding of Intangible Cultural Heritage (adopted in 2003, in force from 20 April 2006). 2 3

  Cultural Rights and Climate Change  383 right to freedom from States’ interference in scientific or creative pursuits. Thus, the protection of culture in human rights law encompasses two basic concepts: first, the right of peoples to practice and continue shared traditions; and secondly, the right to scientific, literary and artistic pursuits.4 It seems that climate change has an impact on intangible cultural heritage, at least with regard to the right of peoples to practice and continue shared traditions.5 Global warming threatens the existence of plants and animal species, which may negatively affect traditional sources of food and agricultural practices. Desertification provokes massive displacement of peoples. Rising sea levels endanger the survival of peoples living on small islands.6 For instance, the Pacific atoll of Kiribati, which has an average elevation below two metres (6.5ft), suffers heavily from rising sea level, so much so that the small island of Tebua in Tarawa, an old landmark for fishermen, is now under water and it is common in Kiribati to have waves 2.8 metres high. The effects of climate change threaten traditional lifestyles, and thus affect cultures and heritage. Lands, plant and animal species are the necessary for traditional lifestyles, including sites for traditional agriculture and cultural spaces for celebrations or rituals. This is particu­larly relevant to the lifestyle of populations that have a subsistence economy. Deterioration of ritual spaces has a direct impact on cultural practices, such as traditional songs and dances. Resettlement or loss of species could result in loss of traditional knowledge concerning arts and crafts – for instance, canoes – weapons – for instance, spears – and other tools. Most significantly, displacement entails the separation of peoples from their traditional places, fragmentation of communities, and conflicts in highly-populated areas as well as assimilation, which involves a further loss of intangible heritage, first and foremost language. This process might ultimately lead to the complete disappearance of minorities and their cultures. Furthermore, traditional knowledge of weather, climate and species is threatened; think, for instance, about the importance of wind for the Inuit at Clyde River, Nunavut, and seasonal weather calendars for Aboriginal communities in Northern Australia.7 4  See UNESCO, Intangible Cultural Heritage, at . 5   Kim H-E, ‘Changing Climate, Changing Culture: Adding the Climate Change Dimension to the Protection of Intangible Cultural Heritage’ (2011) International Journal of Cultural Property 259 ff, 261–65. 6  ICOMOS, Resolution on Impact of Climate Change on Intangible Cultural Heritage, 22 May 2007, at . 7   Gearheard S, Pocernich M, Stewart R, Sanguya J and Huntington H, ‘Linking Inuit Knowledge and Meteorological Station Observations to Understand Changing Wind Patterns at Clyde River, Nunavut’, 2009, ; Green D, Billy J and Tapim A, ‘Indigenous Australians’ Knowledge of Weather and Climate’, 2010, .

384  Ottavio Quirico International responses to climate change might further endanger intangible cultural heritage. For example, in order to address shortages in rice productivity raised by climate change in Bangladesh, the proposed solution consists of implementing new technology,8 which will eventually result in the loss of traditional farming knowledge.9 The aforementioned effects of climate change are likely to affect especially the culture of indigenous peoples, who have a low-carbon lifestyle directly linked to nature and suffer heavily from global warming.10 In fact, the CSICH explicitly recognizes the link between the natural environment and cultural practices, by stating that intangible cultural heritage ‘is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history’.11 Overall, the impact of climate change on intangible heritage is more significant than its effect on tangible cultural and natural heritage, which is protected under the 1972 World Heritage Convention (WHC). The main difference is that whereas world heritage sites involve limited areas protected because of their outstanding universal value, intangible cultural heritage is much more widespread and linked to the lifestyle of entire populations. Thus, it is not surprising that, under Article 2(3) of the CSICH, the protection of intangible cultural heritage must take place by paying attention to ‘sustainable development’. Nevertheless, scholarly work has so far focused much more on the relationship between the United Nations Framework Convention on Climate Change (UNFCCC) regime and sites of outstanding universal value rather than on the relationship between UNFCCC regulation and intangible cultural heritage.12 III.  THE INUIT PETITION TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

The Inuit petition to the Inter-American Commission on Human Rights (IACHR) is probably the most remarkable case demonstrating the impact of climate change on intangible cultural heritage. 8  See ‘Rice Output May Drop 7% a Year’, 26 May 2010, Bdnews24.com, available at . 9   For an exhaustive analysis of the impact of climate change on intangible cultural heritage see Techera E, ‘Cultural and Spiritual Impacts of Climate Change’, 2010, . 10   Raygorodotesky G, ‘Why Traditional Knowledge Holds the Key to Climate Change’, 2011, ; UN International Expert Group Meeting on Indigenous Peoples and Climate Change, ‘Effects of Climate Change on Indigenous Peoples: A Pacific Presentation’, 2008, available at . 11   Article 2(1), emphasis added. 12   See, for instance, Burns WGC, ‘Belt and Suspenders? The World Heritage Convention’s Role in Confronting Climate Change’ (2009) Review of European, Comparative and International Environmental Law 148 ff.

  Cultural Rights and Climate Change  385 The Inuit – which means ‘the people’ in native Inuktitut – are a linguistic and cultural group that descend from the Thule people and live in four countries: Chukotka (Russian Federation), Northern and Western Alaska (United States), Northern Canada and Greenland. Although there are differences within the Inuit group and several Western innovations have been integrated within their lifestyle, all Inuit share a common culture based on adaptation to similar Arctic conditions, including subsistence harvesting in the terrestrial and marine environments, sharing of food, and travel on snow and ice. In particular, subsistence harvesting provides cultural affirmation and plays a key role in ensuring cultural continuity. Like many indigenous peoples, the Inuit have a strict link with the envir­ onment: cold is indispensable to the Inuit’s culture.13 Annual average Arctic temperatures increasing at a rate that is more than twice faster than in the rest of the world has already had an import­ ant impact on the Arctic region, provoking deterioration in ice conditions, a decrease in the quantity and quality of snow, changes in weather patterns and rapid permafrost melts.14 The impact is so relevant that, for the first time in recorded history, in 2007 the entire Northwest Passage between the Pacific and Atlantic oceans was ice-free.15 Unreliability of traditional knowledge concerning sea ice safety, loss of thickness, extent and lifespan of the sea ice, as well as the increased unpredictability of weather make traditional practices such as harvesting, hunting and housing more difficult and often impossible – think, for instance, about igloo building.16 According to the Arctic Climate Impact Assessment, rising temperatures are likely to disrupt or even destroy the Inuit hunting and food sharing culture.17 The right to culture is indeed the first of several human rights whose violation is claimed by the petition the Inuit submitted to the IACHR in 2005, which also includes the right to property, health, life, physical integrity, residence, movement and inviolability of home. The Inuit filed their complaint with the IACHR against the US, which is one of the world’s largest GHG emitters – responsible for around 15 per cent of the global amount of GHGs18 – for failing to mitigate GHG 13  See the Inuit Petition to the Inter-American Commission on Human Rights, ‘Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States’, 7 December 2005, 1, . 14   Ibid, 2. 15   Roach J, ‘Arctic Melt Opens Northwest Passage’, 2007, . 16   Inuit Petition (n 13) 2. See also Osofsky HM, ‘The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights’ in Burns WGC and Osofsky HM (eds), Adjudicating Climate Change (New York, 2009) 272 ff, 281. 17   See the Arctic Climate Impact Assessment (2004), available at . 18  Emission Database for Global Atmospheric Research, CO2 Time Series 1990/2011 per Region/Country, .

386  Ottavio Quirico emissions. The petition is based on the American Declaration of the Rights and Duties of Men, a regional instrument that protects the right to culture under Article XIII, which provides that: ‘every person has the right to take part in the cultural life of the community’. The petition invokes other international instruments as well, in particular the American Convention on Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the ICESCR, the UNFCCC and the Kyoto Protocol.19 The petition claims that, because the Inuit culture is inseparable from the condition of their physical surroundings, massive environmental upheaval resulting from climate change infringes upon the Inuit’s right to practice their culture and enjoy its benefits.20 The Inuit’s subsistence culture would have been damaged by global warming and might get extinguished if the US and the community of nations do not act against climate change. Therefore, the Inuit invoked a decision recommending that the US adopt mandatory measures to cap GHG emissions and take part in the efforts of the international community to limit emissions globally.21 The Inuit claim was finally dismissed by the IACHR in a short communication, assuming that ‘the information provided [in the petition] does not enable [the Commission] to determine whether the alleged facts would tend to characterise a violation of rights protected in the American Declaration’.22 A crucial reason might have been the impossibility of establishing a clear link between GHGs emitted by the US and environmental damage caused in the Arctic by global warming.23 In the meantime, shrinking ice caps are giving rise to a prospective commerce for oil drilling in the Arctic abysses, so much so that the US, Russia, Canada and Norway are disputing over the extension of their respective continental shelves.24 IV. THE RELATIONSHIP BETWEEN THE CONVENTION FOR THE SAFEGUARDING OF INTANGIBLE CULTURAL HERITAGE AND THE UNFCCC REGIME

Although scholars have so far focused exclusively on climate change obligations imposed upon States under the WHC,25 several provisions of the   Inuit Petition (n 13) 73 and 93 ff.   Ibid, 5. 21   Ibid, 7. 22   Inter-American Commission on Human Rights, Sheila-Watt Cloutier et al, Petition No P-1413-05, 16 November 2006, . 23   Chapman M, ‘Climate Change and the Regional Human Rights Systems’ (2010) Sustainable Development Law and Policy 37 ff, 38. 24   Block B, ‘Arctic Melting May Lead to Expanded Oil Drilling’, 2012, available at . 25   See, for instance, Burns WGC (n 12) 148; Huggins A, ‘Protecting World Heritage Sites from the Adverse Impacts of Climate Change: Obligations for States Parties to the World 19 20

  Cultural Rights and Climate Change  387 CSICH could be interpreted as not only providing States with a right, but even further imposing upon them a duty to take adaptation and mitigation measures against global warming. According to the CSICH, a State Party has an obligation to ‘identify intangible cultural heritage present in its territory’26 and to ‘take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory’.27 ‘Safeguarding’ entails ‘measures aimed at ensuring the viability of the intangible cultural heritage, including [. . .] preservation, protection, promotion, enhancement, transmission [. . .] of such heritage’.28 This language recalls the wording of Article 4 of the WHC, according to which a State Party is obliged to ensure ‘the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage [. . .] situated on its territory’ and ‘will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation’.29 Scholars usually assume that the language of Article 4 of the WHC imposes upon States the obligation to adopt mitigation measures against climate change beyond those established under the UNFCCC and the Kyoto Protocol.30 Thus, in light of the similarity between the language of Article 2(3) of the CSICH and Article 4 of the WHC, the same assumption should be maintained within the framework of the CSICH. This approach is supported by the observation that Article 2(3) of the CSICH not only obliges States to safeguard intangible cultural heritage, but also requires its ‘transmission’, which might be interpreted as a reference to the principle of intergenerational equity embedded in environmental law and in particular in the UNFCCC regime.31 Moreover, in order to ensure that ‘effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory’, Article 5 of the WHC compels States to ‘take the appropriate legal, scientific, technical, administrative and financial measures necessary for [its] identification, protection, conservation, presentation and rehabilitation’.32 Similarly, under Article 13 of the CSICH States are required to ‘foster scientific, technical and artistic studies, as well as Heritage Convention’ (2007) Australian International Law Journal 121 ff; Thorson E, ‘The World Heritage Convention and Climate Change: The Case for Climate-Change Mitigation Strategy beyond the Kyoto Protocol’ in Burns WGC and Osofski HM (eds) (n 16) 255 ff. 26   Article 11(b), emphasis added. 27   Article 11(b), emphasis added. 28   Article 2(3), emphasis added. 29   Emphasis added. 30  See Burns WGC (n 12) 161; Thorson E, ‘On Thin Ice: The Failure of the United States and the World Heritage Committee to Take Climate Change Mitigation Pursuant to the World Heritage Convention Seriously’ (2008) Environmental Law 139 ff, 160; Huggins A (n 25) 125. 31   See the Preamble to the UNFCCC. 32   Emphasis added.

388  Ottavio Quirico research methodologies, with a view to effective safeguarding of the intangible cultural heritage, in particular the intangible cultural heritage in danger’ and ‘adopt appropriate legal, technical, administrative and financial measures aimed at [. . .] the transmission of such heritage’.33 Since both adaptation and mitigation measures are commonly considered appropriate means for the protection of world heritage sites under Article 5 of the WHC,34 they might as well constitute reasonable ‘methodologies’ and ‘measures’ for the protection of intangible cultural heritage under Article 13 of the CSICH. Although the regulatory framework established under the CSICH is still heavily based on the principle of sovereignty, it is more cooperativelyoriented than the regulation of the WHC, which matches the necessary inter-State approach required by the fight against climate change.35 In fact, Article 19(2) of the CSICH provides that States Parties ‘recognise that the safeguarding of intangible cultural heritage is of general interest to humanity, and to that end undertake to cooperate at the bilateral, subregional, regional and international levels’. Such a cooperative framework is strengthened by the Declaration of the Principles of International Cultural Co-operation 1996, which provides that ‘cultural co-operation is a right and a duty for all peoples and all nations, which should share with one another their knowledge and skills’.36 This approach at least replicates the ‘duty of the international community as a whole to cooperate’ in the protection of world heritage established under Article 6(1) of the WHC, which is considered sufficient for the adoption of collaborative climate change measures.37 In any case, intangible cultural heritage is less dependent on territory, and thus borders and sovereignty, than tangible cultural heritage and environmental sites of outstanding universal value. Therefore, it necessarily attracts cooperative regulation. Most importantly, with regard to the CSICH, it is not possible to assume that climate change constitutes an unforeseen ‘fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty’, which might be invoked by the parties as a ground for ‘terminating or withdrawing from’ the Convention under Article 62 of the Vienna Convention the Law of Treaties. This argument, which has implicitly and correctly, in the view of the author,38 been put   Emphasis added.  See Thorson E (n 25) 260.   See the Preamble to the UNFCCC. 36   Article 5. 37  See Thorson E (n 25) 264. 38  See Quirico O, ‘Amidst Fragmentation and Coherence: A Systemic Interpretation of the World Heritage Convention and the UNFCCC Regime’ (2012) New Zealand Yearbook of International Law 33 ff, 59-66; Id, ‘Relationship between the World Heritage Convention and Climate Change Regulation’ in Borelli S and Lenzerini F (eds), Cultural Heritage, Cultural Rights and Cultural Diversity (Leiden, 2012) 391 ff, 407. 33 34 35

  Cultural Rights and Climate Change  389 forward by the US in a position paper addressing the petitions on Climate Change and World Heritage to the World Heritage Committee,39 is not applicable to the CSICH for at least two fundamental reasons. First, the CSICH was adopted in 2003, at a time when the international community had full knowledge of climate change, so much so that regulatory action against global warming had already been undertaken. Second, under Article 2(3) of the CSICH, intangible cultural heritage is explicitly protected within the framework of ‘sustainable development’. V.  CLIMATE CHANGE OBLIGATIONS ARISING FROM OTHER INTERNATIONAL REGULATORY INSTRUMENTS PROTECTING INTANGIBLE CULTURAL HERITAGE

The CSICH followed the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore and the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity 1997. These instruments set out the core regulatory framework of intangible cultural heritage. However, other international instruments indirectly focusing on intangible cultural heritage may be relied upon to respond to climate change threats based on the right to culture. A.  The Protection of Intangible Cultural Heritage in International Human Rights Instruments Among other human rights regulatory instruments, Article 15 of the 1966 ICESCR upholds the right of everyone to ‘take part in cultural life’ and compels States to ‘achieve the full realisation of this right’, including steps ‘necessary for the conservation, the development and the diffusion of science and culture’.40 In light of the proven impact of climate change on cultural rights, this language may be interpreted as imposing upon States an obligation to take adaptation and mitigation measures against climate change. Similar assumptions may be developed in light of Article 27 of the UDHR, according to which ‘everyone has the right freely to participate in the cultural life of the community’. Furthermore, by assuming that cultural claims are human rights, especially in light of Article 27 of the UDHR and Article 15 of the ICESCR, it is not impossible to maintain that they generate erga omnes obligations – 39   United States, ‘Position Paper on Climate Change with Respect to the World Heritage Convention and World Heritage Sites’, 2006, 5–6. See the text of the world heritage petitions at . 40   Emphasis added.

390  Ottavio Quirico possibly peremptory, which is a debated issue as regards the WHC.41 If that is the case, rights and obligations embedded in the CSICH and other instruments, which directly or indirectly protect intangible cultural heritage, should in principle be considered non-derogable. As a consequence, violations committed by means of GHG emissions should not be tolerated, even in situations of emergency, and States should cooperate in bringing breaches to an end according to Articles 40 and 41 of the ILC’s 2001 Draft Articles on State Responsibility.42 This approach would further strengthen the argument that States must take adaptation and mitigation measures against climate change in order to protect intangible cultural heritage. B.  The Protection of Intangible Cultural Heritage in Environmental Treaties Having a look at regulatory regimes that do not directly concern intangible cultural heritage but touch upon it, environmental instruments seem to support the necessity of protecting intangible culture. Article 8(j) of the 1992 Convention on Biological Diversity (CBD) commits States to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’.43 Article 8 of the CBD also provides that States shall engage in traditional lifestyle protection ‘as far as possible’, which could be read as a reference to the principle of common but differentiated responsibility. In fact, according to this principle, which has been clearly recognized by the 1992 Rio Declaration on Environment and Development,44 States bear different responsibility for environmental degradation and global warming based on: (1) their historical GHG contributions; and (2) financial, technological and structural capacity to tackle environmental degradation and global warming. Article 8 of the CBD might thus be interpreted as a reference to the different capacity of States to face climate change. Indeed, a similar interpretation has been developed under Article 4 of the WHC, which provides that a State Party must protect World Heritage sites ‘to the utmost of its own resources’, and under Article 5 of the WHC, according 41  See Francioni F, ‘The Human Dimension of International Cultural Heritage Law: An Introduction’ (2011) European Journal of International Law 9 ff; Carducci G, ‘Articles 4-7’ in Francioni F and Lenzerini F (eds), The 1972 World Heritage Convention – A Commentary (Oxford, 2008) 103 ff, 111, 121–22, 115, 119, 132–44; Buzzini G and Condorelli L, ‘Article 11’ in Francioni F and Lenzerini F (eds), Id 175 ff, 179. 42   See the text of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts in ILC, Report to the General Assembly (UN Doc A/56/10, 2001) 43–59. 43   Emphasis added. 44   Principle 7.

  Cultural Rights and Climate Change  391 to which States must endeavour to undertake appropriate measures to preserve World Heritage sites ‘in so far as possible’.45 Furthermore, Article 10(c) of the CBD requires States to ‘protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements’.46 This rule is particularly explicit in recognizing the existence of a link between nature and intangible cultural heritage. In the same vein, Article 16(g) of the 1996 Convention to Combat Desertification requires States to ‘ensure adequate protection of local and traditional knowledge’, which might be interpreted as including the obligation to take mitigation and adaptation measures against climate change. C.  Intangible Cultural Heritage and Indigenous Peoples Indigenous peoples have a special relationship with their environment, which is the basis of their culture, so much so that they are considered ‘territorial minorities’.47 Article 11(1) of the 2007 Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that ‘indigenous peoples have the right to practice and revitalise their cultural traditions and customs’, which involves ‘the right to maintain, protect and develop the past, present and future manifestations of their cultures’, including ‘archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature’.48 This right is strengthened by an obligation to redress damage under Article 11(2) of the UNDRIP. Furthermore, according to Article 14(3) of the UNDRIP, States, together with indigenous peoples, are obliged to ‘take effective measures, in order for indigenous individuals [. . .] to have access, when possible, to an education in their own culture’.49 Indigenous peoples also enjoy the right to ‘the dignity and diversity of their cultures, traditions, histories and aspirations’.50 Most significantly, under Article 31(1) of the UNDRIP, indigenous peoples have the right to ‘maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures’, which include ‘human and genetic resources, seeds, medicines, know­ ledge of the properties of fauna and flora, oral traditions, literatures,  See Thorson E (n 30) 139.   Emphasis added. 47  See Human Rights Committee, The Rights of Minorities (Article 27), CCPR/C/21/ Rev.1/Add.5, General Comment No 23, 8 April 1994, para 7. 48   Emphasis added. 49   Emphasis added. 50   Article 15(1). 45 46

392  Ottavio Quirico designs, sports and traditional games and visual and performing arts’.51 This claim is complemented by a State obligation to ‘take effective measures to recognise and protect the exercise of these rights’ in conjunction with indigenous peoples.52 More generally, the need to protect and promote the right of indigenous peoples to their culture is clearly highlighted in the Preamble to the UNDRIP. VI. ADAPTATION AND MITIGATION MEASURES IN LIGHT OF THE OBLIGATION TO PROTECT INTANGIBLE CULTURAL HERITAGE

Unlike the controversial case of the WHC, which, in the opinion of the author, allows the adoption of on-site adaptation and mitigation measures, but not of general mitigation constraints against climate change,53 the regulatory framework for intangible cultural heritage might allow, and even compel, the adoption of not only adaptation constraints, but also of mitigation measures against anthropogenic GHG emissions. Factually, this assumption can be maintained in light of the massive impact of GHG emissions on the environment and the strict link existing between the latter and widespread intangible cultural heritage, with specific regard to indigenous peoples. Legally, the framework established by the CSICH, as complemented, on the one hand, by several human rights instruments, such as the UDHR and the ICESCR, and, on the other hand, by relevant environmental instruments, such as the CBD and the Convention to Combat Desertification, allows room for the view that States should adopt general mitigation measures against anthropogenic GHG emissions in order to protect intangible cultural heritage. On closer inspection, regardless of the political hurdles that prevent the adoption of GHG measures on a national, regional and international scale, intangible cultural heritage seems to provide the right framework for taking measures of adaptation to climate change, in particular in order to protect sites exploited for cultural practices. However, intangible cultural heritage alone cannot afford the correct regulatory framework for the approval of general mitigation measures. In fact, climate change is not only a global problem from the territorial viewpoint, but is also multidis­ciplinary from the standpoint of legal regulation. In other words, climate change affects not only the environment, but also many other regulatory frameworks, ranging from intangible cultural heritage to the right of peoples to self-determination and free trade. Invoking general mitigation measures   Emphasis added.   Article 31(2), emphasis added. 53  See Quirico O (n 38) 33 ff; Id (n 38) 391 ff. 51 52

  Cultural Rights and Climate Change  393 within the context of each regime is practically unfeasible and is likely to lead to inconsistent regulation, which is already happening within the framework of private regulatory initiatives addressing climate change.54 In order to avoid regulatory fragmentation, the right approach to the impact of climate change on intangible cultural heritage is one that systematically balances claims arising from different regulatory systems within the context of the UNFCCC regime.55 In this regard, the necessity of protecting intangible cultural heritage should rank very high in the Bali Road Map,56 although so far cultural heritage has not been taken into account within the context of the climate change debate.57 Furthermore, the strict relationship between intangible cultural heritage and environmental protection should stimulate thinking about the role of the environment within the hierarchy of international legal obligations. In fact, since the enjoyment of a healthy environment is preliminary to the right to participate in culture, it is not illogical to infer the existence of a right to a healthy environment having a fundamental – ‘human’ – nature.58 In light of this, it should not be utopistic to regard massive GHG emissions as breaches of peremptory norms, from which no derogation is permitted and which require general cooperative countermeasures. After all, this approach envisaged by Roberto Ago in his early reports to the International Law Commission on the Responsibility of States for Internationally Wrongful Acts almost 40 years ago.59 54  See Biermann F and Pattberg P, ‘Global Environmental Governance: Taking Stock and Moving Forward’ (2008) Annual Review of Environment and Resources 277 ff, 284. 55   See International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, UN Doc A/ CN.4/L.682, 13 April 2006, para 277. 56   UNFCCC, Bali Road Map . 57   Kim H-E (n 5) 277. 58   On a regional scale, this assumption seems to be supported at least by Article 37 of the EU Charter on Fundamental Rights, which provides that ‘a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. 59  Article 18 of the Draft Articles on State Responsibility (State Crimes) submitted by Professor Ago to the ILC in 1976 defined as an ‘international crime’ a ‘serious breach by a state of an international obligation established by a norm of general international law accepted and recognised by the international community as a whole’, including ‘human rights’ and ‘the conservation and the free enjoyment for everyone of a resource common to all mankind’ (see Ago R, Fifth Report to the ILC on State Responsibility, UN Doc A/ CN.4/291, Yearbook of the ILC, 1976, vol 2 part 2, 54). In the Draft of the first part of the Articles adopted by the ILC in 1976, this provision became Article 19, according to which an ‘international crime’ is ‘the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognised as a crime by that community as a whole’, including ‘safeguarding the human being’ and ‘the safeguarding and preservation of the human environment [. . .] prohibiting massive pollution of the atmosphere or of the seas’ (ILC, Report to the General Assembly, UN Doc A/31/10 (1976) 2-2 Yearbook of the ILC, p 75, emphasis added). On the little solidarity that has so far materialized in the field of environmental law, see Francioni F, ‘Realism, Utopia

394  Ottavio Quirico VII. CONCLUSION

The negative impact of climate change on intangible cultural heritage is a proven fact, which may have massive and devastating consequences. To date, nevertheless, this factor has not been adequately addressed by both regulators and academic scholars. In this regard, the most prominent example is certainly the dismissal by the IACHR of the Inuit petition addressing the effect of global warming in the Arctic. A literal and teleological interpretation of the CSICH and other inter­ national legal instruments that directly or indirectly protect intangible cultural heritage seems to support the view that States must take mitigation and adaptation measures against GHG emissions, especially in light of the obligation to protect human rights. However, a systemic interpretation shows that intangible cultural heritage should be more correctly protected against global warming within the context of the UNFCCC regime, with specific regard to general mitigation measures. In any case, if intangible cultural heritage is regarded as a human right, environmental protection should also be considered a fundamental claim, since it is preliminary to the enjoyment of culture.

and the Future of International Environmental Law’, EUI Working Paper, Department of Law, 2012/11, 1 ff, 11–12.

19 Public and Private in the International Law of Environmental Liability EMANUELA ORLANDO

G

I. INTRODUCTION

ROWING CONCERNS FOR the protection of the environment have recently determined the emergence of new perspectives on the question of liability and reparation for environmental damage. The main pillar around which such evolution has taken place is the concept of ecological damage and the progressive legal recognition of damage to the environment and to natural resources as a self-standing value. Alongside its classic function of providing compensation to private victims of environmental pollution, the law of liability has been increasingly regarded as a mechanism to ensure the restoration of the impaired natural resources, as well as a powerful tool for the protection of the envir­ onment. Consequently, classic private law approaches to environmental damage as featured in civil liability rules or in the common law of tort have been paralleled by new types of liability regimes aimed at the restoration of natural resources and the environment. It has become necessary to adjust certain features typical of private law liability schemes to cope with the specificities of harm to natural resources. Overall, a publicoriented approach to liability, based on a central role of the State in the enforcement process, was considered as more appropriate to reflect a broader understanding of the environment as a public, collective good and as a ‘shared responsibility’. Looking at recent developments taking place on the international level, this chapter will argue that not necessarily are public and private aspects of liability mutually exclusive and that the legal systems at national and on the international level are increasingly moving towards the coexistence of classic civil liability regimes with public law approaches to the reparation of environmental harm.

396  Emanuela Orlando II.  PUBLIC AND PRIVATE DIMENSION OF ENVIRONMENTAL HARM

Compared to the enormous expansion and sophisticated character of environmental norms concerned with the prevention and control of pollution, the development of specific rules on liability and redress for environmental damage seems to somehow lag behind. One of the reasons, and partly also a consequence, for such underdeveloped status of liability rules in the environmental field is the scarce recognition of liability as a tool for the protection of the environment, combined with a focus on the private and individualistic aspects of environmental damage. There is a longstanding debate among legal scholars around the appropriateness of using private law tools to attain publicly oriented objectives.1 Yet, the attempt to design a comprehensive regime of environmental liability, which captures in a single instrument the various dimensions of environmental harm – private and public, individual and collective2 – and serves the twin objectives of providing compensation to the victims of environmental pollution and protecting the common environment, would meet with a fundamental challenge. Because of their typical compensatory function,3 the law of civil liability or the common law of torts are probably best positioned to protect the rights and interests of individuals4; they provide victims of environmental harm with an important avenue to seek redress for damage to private property, personal damage and, to some extent, also recover consequential economic losses. However, classic civil liability rules appear conceptually inadequate to address the ecological aspects of environmental harm and to encompass the public and collective dimension of the environment as a public common good. Apart from the difficulty of tackling diffuse cases of pollution by means of liability, there are fundamental limits related to the range of interests that civil liability rules have originally been conceived to address.5 Although there are instances in which private law tools have been invoked for the protection of the public interest, civil liability and tort law remain conceptually designed to protect the individuals affected in their private rights; from this perspective, the public goal of environmental protection remains at best an indirect and ancillary effect. 1   See, among others, Lee M, ‘Tort, Regulation and Environmental Liability’ (2002) Legal Studies 33 ff; Cane P, ‘Are Environmental Harms Special?’ (2001) Journal of Environmental Law 3 ff. 2   See on the various aspects of environmental damage Wetterstein P, ‘A Proprietary or Possessory Interest: A conditio sine qua non for claiming damages for environmental impairment?’ in Wetterstein P (ed), Harm to the Environment: the Right to Compensation and the Assessment of Damages (Oxford, 1997) 29 ff. 3   Cane P, ‘Tort as Regulation’ (2002) Common Law World Review 305 ff. 4   Lee M, ‘Tort Law and Regulation: Planning and Nuisance’ (2011) Journal of Planning and Environmental Law 4 ff. 5   Lee M (n 1).

  Public and Private  397 There are also technical difficulties in applying private law structures and concepts to address harm to the public environment. First and foremost, there is the problem of identifying the subject entitled to act on behalf of the environment, especially in case of damage to unowned natural resources; in international law, an interesting parallel is offered by damage to the environment in areas located beyond the State’s jurisdiction. A further issue is the assessment and valuation of damage to the public environment. Finally, alternative options for reparation of envir­ onmental harm, other than monetary compensation, need to be found if the ultimate objective is the reinstatement of the environment to the best possible extent. III.  THE ENVIRONMENTAL LIABILITY FRAMEWORK IN INTERNATIONAL LAW

The development of international norms in the field of environmental liability has initially followed a private law approach. In both the customary rules of State responsibility and in the early international conventions dealing with liability for damage caused during the operation of certain types of high-risk activities, environmental harm had assumed legal relevance insofar as it infringed private and individual rights or as long as it represented an unlawful interference with the State’s territorial sovereignty. The famous decision rendered by the Arbitral Tribunal in the Trail Smelter6 case offers one of the most illustrative examples of the application of private law concepts in an inter-State dispute concerning transboundary environmental interference. The case concerned the harmful impacts of the toxic fumes emitted during the operation of a smelter located in the Canadian town of Trail and causing severe damage to the territory of the United States and the private interests of the neighbouring American farmers. The arbitral tribunal vested with the assessment of the damage relied plainly on principles derived from the common law of torts, as applied by US courts when dealing with cognate questions of private nuisance and trespass. The award did not deal with pure environmental damage; thus, environmental protection was, at best, only consequential and incidental to the protection of American farmers’ economic interests and to the implementation of classic private law principles of nuisance. The Trail Smelter case shows how the initial responses provided by international law to the problem of transboundary environmental harm consisted in an extension of already existing general principles, rather 6   Trail Smelter Arbitration (US v Canada), 16 April 1938 and 11 March 1941, RIAA, Volume III, 1905.

398  Emanuela Orlando than in the attempt to articulate dedicated rules to address environmental problems. This approach stands in parallel with early developments of environmental liability rules in most national legal systems where instances of environmental harm were indirectly captured through the application of the private law of tort or civil liability rules, thereby leaving out more general environmental considerations – such as the point at which the presence of contamination can be classified as damage with respect to animal and plant life, the question of alteration of environmental quality and so on – which are nowadays considered pivotal in addressing problems of pollution.7 Other decisions of international tribunals in this early phase also endorse an approach to environmental damage which focuses on the impairment of a state’s right to the shared use of natural resources or on the property rights of its nationals rather than on harm to the environment or to natural resources per se considered. In the Lac Lanoux case, concerning the construction of a hydro-electric development scheme, the interests at stake were those of France, concerned with the equitable and shared use of the water resources to serve the agricultural needs of the country, and those of Spanish riparian owners which could be affected by the diversion of the waters.8 In the Gut Dam case,9 concerning a dispute between Canada and United States over the construction, by Canada, of a dam in the St Lawrence River between the Canadian territory and Les Gallops Island in US territory, the possible damage arising from the construction of such a dam consisted in the detriment to the property owners of Les Gallops Islands or to the property of any other US citizen. Moving from the purely public international law level that characterizes inter-State disputes to the level of conventional norms, one of the most remarkable developments in the international legal framework of environmental liability is the elaboration of international conventions establishing uniform schemes of liability for pollution damage occurring during the operation of certain kinds of hazardous activity. This type of liability treaty started to gain ground during the 1960s, mainly in concomitance with the intensified use of modern technologies as nuclear energy, and the growing relevance of international maritime transport.10 The first multilateral treaties that specifically address environmental liability issues have, in fact, been adopted in the field of nuclear energy and oil pollution damage.11 Since then, the number of liability conventions has   Lee M (n 1) 41.   Lake Lanoux Arbitration (Spain v France), 16 November 1957, ILR 1957, 101. 9   Gut Dam Arbitration (US v Canada), 22 September 1968, ILM 1969, 118. 10  Rosas A, ‘Issues of State Liability for Transboundary Environmental Damage’ (1991) Nordic Journal of International Law 29 ff, 31. 11   Respectively, in the field of nuclear energy damage, the 1960 Paris Convention on Third Parties Liability in the field of Nuclear Energy (OECD), and the 1963 Vienna Convention on Civil Liability for Nuclear Damage (IAEA); in field of maritime transport: the 1969 International 7 8

  Public and Private  399 increased and at present it is possible to count at least 14 conventions encompassing other aspects of maritime transport of oil and other dangerous substances,12 as well as other sectors of hazardous and high-risk activities.13 Spurred as a response to the limitations of the law of State responsibility, which at least in the environmental field proved to be a very cumbersome avenue to pursue for victims of transfrontier pollution, these conventions shift the focus on the private law liability of the operator or company responsible for the harmful activity.14 Whereas they are usually referred to as environmental liability treaties, the main purpose of these conventions is not the protection of the environment or reparation for the impairment of natural resources; rather, they aim essentially at improving the prospective of private victims of transboundary or transnational envir­onmental pollution to obtain adequate compensation for the economic and personal damage suffered.15 These civil liability treaties are essentially private international law instruments which lay down uniform schemes of private liability in order to address the main jurisdictional obstacles faced by private plaintiffs in cases of transnational pollution.16 The structure and main elements of these conventions reflect the private law approach and the compensatory function of liability rules. Recurrent features are the definition of uniform standards of liability – generally strict with limited exceptions –, the establishment of specific provisions for the recognition and enforcement of judgments in the other States Parties, and norms ‘channelling’ liability to a specific person, usually the operator responsible for the activity or the owner of the facility. Convention on Civil Liability for Oil Pollution Damage, and the 1971 International Convention on the Establishment of a Fund for Compensation for Oil Pollution Damage. 12   In the field of maritime transport, States adopted, within the framework of the International Maritime Organization (IMO), the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention), and the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Oil Convention). 13   In the field of transport of hazardous substances, by other means than maritime transport, States adopted the 1989 Convention on Civil Liability for Damage Caused during the Carriage of Dangerous Goods by Roads, Rail and Inland Navigation Vessels (CRTD); in 1999 the Protocol on Liability and Compensation for Damage resulting from Transboundary Movement of Hazardous Waste and their Disposal was adopted, under the auspices of the United Nations Environmental Programme (UNEP); in 2003, the Protocol on Civil Liability and Compensation for Damage caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters was adopted within the framework of UN/Economic Commission for Europe; finally, an interesting case of civil liability to fulfil environmental protection objectives, is represented by the 1993 Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment. 14   Boyle A, ‘Globalising Environmental Liability: The interplay of National and International law’ (2005) Journal of Environmental Law 3 ff. 15   Churchill RR, ‘Facilitating Transnational Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems and Prospects’ (2001) Yearbook of International Environmental Law 3 ff. 16   Ibid.

400  Emanuela Orlando The concept of environmental damage – at least in the original texts of the oil pollution and nuclear liability conventions – only covers damage to property, health and personal injury, and further economic losses suffered as a consequence of the oil spill or the nuclear accident; conversely, harm to natural resources or to the unowned parts of the environment that do not fall within the boundary of property damage or land con­ tamination or which had no impact on private economic interests are not contemplated.17 With a view to strengthening the compensatory function of liability rules, while at the same time spreading the liability burden among the different actors in charge of or benefiting from the economic revenues of the activities, both the nuclear damage liability conventions and the oil pollution conventions have been supplemented by the establishment of appropriate compensation funds respectively financed by public funds from the installation States or through the private contribution of the oil cargo industry in the Contracting States.18 The purpose of these funds is to provide a second layer of compensation to the victims of the damage. Overall, the above analysis reflects an international legal framework for the protection of the environment where, at least in the early stages of its development, environmental protection is principally pursued at the level of primary international rules setting standards or imposing specific duties of pollution prevention and control. There is a dichotomy between the primary norms of public international law embedding the public interest in the protection of the environment, and secondary rules of liability and responsibility that appear still anchored to the narrow boundaries of private law concepts or to the notion of territorial sovereignty and, as such, do not apply to areas beyond national jurisdictions and to the global commons. Moreover, liability rules are perceived as a prominently reactive instrument with a specific and narrowly conceived compensatory scope; as such they are still disconnected from more ambitious environmental standards set at the level of primary rules. IV.  THE PROGRESSIVE INTEGRATION OF LIABILITY RULES IN ENVIRONMENTAL PROTECTION STRATEGIES: EXPANDING THE SCOPE AND AIMS OF LIABILITY

Over the last few decades, the growing relevance of environmental concerns at national and on the international level have prompted the 17  See Sandvik B and Suikkari S, ‘Harm and Reparation in International Treaty Regimes: An Overview’ in Wetterstein P (ed) (n 2) 57 ff. 18   Doeker G and Gehring T, ‘Private or International Liability for Transnational Environmental Damage: The Precedent of Conventional Liability Regimes’ (1990) Journal of Environmental Law 1 ff.

  Public and Private  401 integration of an environmental dimension into the texts of many inter­ national civil liability treaties addressing damage caused by hazardous and technological activities. The first moves in this direction have taken place in the field of maritime pollution. The 1992 Protocol to the 1969 Civil Liability Convention (CLC) on Civil Liability for Oil Pollution Damage extends the notion of environmental damage to include alongside the compensation of traditional forms of damage, also the ‘reasonable costs of measures taken to restore the environment’. It also broadens the definition of ‘incident’ to cover any occurrence which ‘creates a grave and imminent threat of ’causing oil pollution damage. Interestingly, rather than being triggered by regulatory reforms concerted at the international level, such revision of the original text of the 1969 Convention was prompted by the interaction of the international regime of civil liability with the domestic legislation of certain States Parties to the Convention. A particularly interesting case is the one concerning the compensation claims lodged before the Court of Messina (Italy) by the Italian Ministry of Environment for the severe damage to marine environment and to the Italian coastline caused by the oil spill resulting from the collision of the Greek tanker Patmos with the Spanish tanker Castillo de Monte Aragon.19 In support of its claim, the Italian Government relied on its national public law statute – Law No 349/1986 – which specifically provided reparation for pure ecological damage, and on the original text of the 1969 CLC, which provided a generic definition of oil pollution damage; while the latter did not intend to cover environmental damage, it did not purportedly exclude it either.20 Dismissed in the first instance, the claim of the Italian Government was eventually upheld by the Court of Appeal in the Patmos II. The ruling of the Italian Court gives a remarkable account of the public and collective relevance of environmental damage.21 According to the Court: Although the notion of environmental damage cannot be grasped by resorting to any mathematical or accounting method, it can be evaluated in the light of the economic relevance that the destruction, deterioration, or alteration of the environment has per se and for the community, which benefits from environmental 19   Bianchi A, ‘Harm to the Environment in Italian Practice: The Interaction of International Law and Domestic Law’ in Wetterstein P (ed), Harm to the Environment – The Right to Compensation and the Assessment of Damages (Oxford, 1997) 103 ff. 20  Pursuant to Article 1(6) of the 1969 Civil Liability Convention, pollution damage included ‘any loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures’. 21   Maffei C, ‘The Compensation for Ecological Damage in the “Patmos” Case’ in Francioni F and Scovazzi T (eds), International Responsibility for Environmental Harm (London/Dodrecht/ Boston, 1991).

402  Emanuela Orlando resources and, in particular, from marine resources in a variety of ways (food, health, tourism, research, biological studies).

Constrained between the evidence of severe environmental harm caused by these types of accidents, and the fear of unlimited liability claims, the International Oil Pollution Compensation (IOPC) Fund opted for a ‘mild’ revision of the concept of damage which takes into consideration the ecological impacts of oil pollution, while also setting out limits to the amount of liability. The IOPC Fund also intended to avoid claims when the amount of compensation requested was the result of calculations made on the basis of abstract criteria. The solution eventually agreed consisted of including in the definition of pollution damage also the reasonable costs of measures to restore the environment, limitedly to the reasonable costs of measures of reinstatement taken or to be undertaken. This definition reveals the difficulty to ensure the coexistence within the same legal instruments of two related, yet different goals, namely compensation for private parties and restoration of the environment as a public, collective good. By limiting compensation of environmental damage to the costs of ‘reasonable measures of reinstatement’, the 1992 Protocol and Convention do not encompass environmental damage which goes beyond the costs of reasonable reinstatement measures, nor do they take into account the interim losses experienced meanwhile the damage is being mitigated by natural regeneration.22 Moreover, the new definition is crafted in a way as to side-step the thorny problem of quantification and assessment of pure ecological damage. On this point, the IOPC Fund Claims Manual makes it clear that ‘a claim qualifies for compensation only to the extent that the amount of the loss or damage is actually demonstrated’.23 In spite of the limits, the revised definition of damage under the 1992 Protocol to the Oil Pollution Convention retains the merit of paving the way for the inclusion of the environmental aspects of the damage into the framework of civil liability treaties. The practice of the IOPC Fund in relation to environmental claims has usually admitted compensation for the costs of reasonable measures aimed at accelerating natural recovery of environmental damage, as well as for the costs of post-spill studies related to the pollution damage.24 The Fund has also allowed contribution for the costs of clean-up measures and other measures taken to prevent or mini22   Wilkinson D, ‘Moving the Boundaries of Compensable Environmental Damage Caused by Marine Oil Spills: The Effect of Two New International Protocols’ (1993) Journal of Environmental Law 71 ff, 89; Ibrahima D, ‘Recovering Damage to the Environment per se Following an Oil Spill: The Shadows and Light of the Civil Liability and Fund Conventions of 1992’ (2005) Review of European Community and International Environmental Law 63 ff. 23   IOPC Fund 1992, Claims Manual, April 2005 edition. 24   IOPC, Claims Manual, December 2008 edition, London, 2008, 35, available at .

  Public and Private  403 mize pollution damage in a State Party. In this respect, the Fund Claims Manual specifies that expenses for preventive measures and response action are recoverable even if no spill of oil occurs, provided that there was a grave and imminent threat of pollution damage; in addition, compensation may also cover preventive measures undertaken on the high seas or within the territorial waters of a State which is not a Party to the Convention, when they are necessary to prevent pollution within the territory of a State Party.25 The definition of environmental damage in the 1992 Protocol has provided a model for similar definitions under subsequent environmental liability treaties negotiated with respect to other sectors of hazardous activities.26 The approach set by the 1992 civil liability Protocol has in fact been retained, sometimes with some minor changes, in the text of most civil liability treaties.27 An interesting example of the use of civil liability rules to fulfil environmental protection purposes is the 1993 Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment. Compared to other civil liability treaties for environmental damage, the Council of Europe Convention stands apart for being the only international treaty which addresses horizontally a broad range of different activities posing a risk to the environment, rather than focusing on a specific sector of activity or on a specific type of damage. Moreover, the Convention applies to both traditional damage and damage to public natural and cultural resources; it provides a broad definition of environment, which also includes the characteristic aspects of landscape and property forming part of cultural heritage. It also includes progressive provisions concerning access of the public to environmental information on environmental damage held by the public authorities, and by the operators, and on access to justice. Article 18 of the Convention entitles environmental associations to file a request for an order so that the operator is obliged to take preventive measures, response action or reinstatement measures, and even to prohibit a dangerous activity which is unlawful and poses a grave threat of damage to the environment. Unfortunately, possibly because of its ambitious scope, the Convention has not yet   Ibid.   De La Fayette L, ‘The Concept of Environmental Damage in International Liability Regimes’ in Bowmann M and Boyle A (eds), Environmental Damage in International and Comparative Law – Problems of Definition and Valuation (Oxford, 2002) 149 ff. 27   See, in particular, the 1997 Protocol that amends the 1963 Vienna Convention on Civil Liability for Nuclear Damage; the Protocol extends significantly the notion of environmental damage, which also now includes ‘the cost of measures of reinstatement of the impaired environment . . . if such measures are actually taken or to be taken’, and ‘loss of income deriving from an economic interest in any use or enjoyment of the environment (. . .)’. See also the 2001 Bunker Oil Convention and the 1996 HNS Convention, negotiated within the IMO framework; and the Basel Protocol on liability and compensation for transboundary movement of hazardous waste. 25 26

404  Emanuela Orlando entered into force and it has become unlikely that it will ever enter into force in the future. Overall, the numerous efforts to negotiate and adopt civil liability instruments, either as stand-alone instruments or as annexes or protocols to international environmental treaties regulating private parties’ and States’ conduct in relation to specific sectors of activities or certain natural resources, signal a renewed interest of the international community towards the liability topic not merely as a tool to provide compensation for private forms of damage but more broadly as a fundamental complement to environmental protection strategies and indirectly as a tool to promote the implementation of primary environmental norms. On this point, the recent trend consisting in the inclusion of liability rules in the context of Multilateral Environmental Agreements (MEAs) reveals an emerging understanding of liability not only as having a compensatory function but also as a tool to support the implementation and strengthen compliance with primary environmental norms.28 A similar approach has been followed in the European Union. According to the Commission’s Explanatory Memorandum to the then Draft Directive on Environmental Liability, ‘the main benefit expected from the proposal is improved enforcement of environmental protection standards in line with the “polluter pays” principle’.29 The idea of liability as an essential component of environmental protection strategies has also been endorsed by the United Nations Environmental Programme (UNEP). The UNEP’s 2002 Report, ‘Environmental Liability and Compensation Regimes: A Review’,30 highlights the importance of liability rules not merely as a tool to compensate the loss of private victims of hazardous activities, but also as important instruments in support of envir­ onmental protection goals. The Report recognizes liability as a technique for internalizing environmental and other social costs into production processes and other activities for the implementation of the polluter-pays principle. As a result, responsibility and liability for environmental harm are regarded as a positive incentive to prevention, deterrence, restoration or compensation.31 28   In this sense, Brunnée J, ‘Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection’ (2004) International and Comparative Law Quarterly 351 ff; see also Daniel A, ‘Civil Liability Regimes as Complement to Multilateral Environmental Agreements: Sound International Policy or False Comfort?’ (2003) Review of European Community and International Environmental Law 225 ff. 29   Explanatory Memorandum to the Draft Directive, p 6. See on this, Lee M, ‘The Changing Aims of Environmental Liability’ (2002) Environmental Law and Management 189 ff. 30  UNEP, ‘Environmental Liability and Compensation Regimes: A Review’ (2003). The Report is the result of an experts’ meeting specifically in relation to liability and compensation for environmental damage organized by UNEP Division of Environmental Policy Implementation as part of the implementation of the Montevideo Programme III. 31   Ibid, 53. See also Hardman Reis T, Compensation for Environmental Damages under International Law – The Role of the International Judge (Alphen aan den Rijn, 2001).

  Public and Private  405 On the other hand, the long and often very controversial negotiations surrounding the adoption of the text of most liability treaties and the very low rate of ratification indicate that liability still remains a very sensitive topic. The scarce success gained by the Council of Europe Lugano Convention also suggests that civil liability regimes are probably more successful when they focus on specific hazardous activities and address the interests of the victims, compared to broader solutions.32 This also explains the preference for a step-by-step approach whereby agreement on more substantive aspects is reached gradually.33 But it also contributes to raise scepticism on the appropriateness of civil liability to pursue envir­ onmental goals, and causes one to wonder whether – if the various civil liability treaties currently adopted or in the process of being adopted enter into force – they will effectively meet the expectations, not only in terms of improving compensation prospects, but also from the standpoint of the protection of the environment.34 A further question is to what extent it is convenient to merge in one instrument and under a single approach the two objectives of private compensation and environmental protection. Finally, to what extent does a sector-specific approach whereby each liability treaty focuses on a specific sector of hazardous activity and addresses certain types of damage meet with the holistic nature of the environment? A sector-specific approach is certainly wiser from a pragmatic point of view, and from the perspective of improving access to justice and compensation for private victims of damage caused by a specific activity; yet, from a purely envir­ onmental perspective, it may run the risk of contributing a fragmented and piecemeal solution to the protection of the environment, disregarding the interdependent nature of the environment and natural resources. In its famous Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice (ICJ) affirmed that ‘the environment is not an abstraction but represents a living space, the quality of life and the very health of human beings including generations unborn’.35 The above remarks are all the more relevant in light of the current scenario in the international law for the protection of the environment that at the level of primary norms is characterized by an enormous expansion of the substantive scope and geographical reach of international rules to address the new environmental challenges. The need to cope with new environmental challenges and to find appropriate responses to the emerging threats to the conservation of the natural resources and ecosystems   Daniel A (n 27) 236.   An example of this is the Antarctic Treaty Liability Annex, whose current text is for the moment limited to liability for ‘response action’ after an environmental emergency has occurred (see further below). 34   Brunnée J (n 27). 35  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para 29 32 33

406  Emanuela Orlando has led to the development of a wide array of legal tools and to sophisticated legal mechanisms of environmental governance. The notion of global commons and the increasing concerns about climate change and biodiversity clearly point to an understanding of the environment as a common, collective good. In this context, the narrow notion of environmental damage retained by the civil liability treaties appears limited and outdated to capture contemporary understanding of the environment based on a more holistic and comprehensive approach to the protection of natural resources. The expanding global scope of many environmental problems cannot be captured and addressed within the narrow structure of private international law of torts. While the harmonization of private international law rules provides an important avenue to ensure compensation of private parties and can also support environmental action, it should remain a complement, not a substitute of a system of liability specifically tailored to the special features of environmental harm. There is a need to expand the reach of liability rules beyond transboundary or transfrontier damage to address damage to global commons. In this light, the next section will proceed to examine some of the most recent developments currently taking shape in the international law of environmental liability. These developments reveal a shift from civil liability to a different, public law-based approach to reparation, or at least response action, for environmental harm. Remarkably, a regulatory approach to the liability issue has arisen within the framework of instruments where environmental objectives appear predominant. The European Union has pioneered new international law developments on this topic by adopting in 2004 the Environmental Liability Directive.36 Drawing partly on the liability scheme established under the relevant United States statutes – namely the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or Superfund and the Oil Pollution Act – the Directive sets up an administrative-type of liability for ecological damage, covering damage to biodiversity, water and land. V.  LIABILITY REGIMES FOR THE PROTECTION OF THE COMMON ENVIRONMENT

A.  The Antarctic Liability Regime On the international level, the opportunity to approach the topic of envir­ onmental liability from a different angle than that of the private law of torts arose in connection with the negotiation of a liability regime for 36  Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143, 30 April 2004, 56.

  Public and Private  407 Antarctica. The Antarctic Liability regime was envisaged as an Annex forming an integral part of the Madrid Environmental Protocol with which it shares the primary objective of ‘a comprehensive protection of the Antarctic environment and of the dependent and associated ecosystems’.37 Though not expressly qualified as a common area – such as the high seas or the outer space – the Antarctic continent can certainly be regarded as a public space.38 The public interest of the whole of mankind in the conservation and maintenance of the fragile and unique Antarctic environment is reflected in the Preamble of the Antarctic Treaty that refers to the role of the Antarctic continent for scientific research in the interest and progress of all mankind.39 It was, therefore, clear since the beginning that a liability regime in Antarctica would be truly significant if its objective and actual effect were to protect the Antarctic environment. Moreover, the special legal and factual characteristics of the Antarctic continent were required to go beyond the traditional tort mechanism of compensating injuries to persons and property.40 In particular, the remote location of Antarctica and the uniqueness and fragility of its environment required the elaboration of ad hoc remedial measures which, besides clean-up and restoration, would also provide for certain kinds of preventative measures to avoid further damage, as well as concrete means of prompt reaction against incidents occurring in the area and threatening serious damage to the Antarctic environment. From a legal perspective, Article IV of the 1959 Antarctic Treaty freezes current and future sovereignty claims over the continent, thereby foreclosing the exercise of traditional State territorial jurisdiction; this entailed the search for alternative jurisdictional links between the State and the private person carrying out activities in Antarctica and eventually threatening damage to the environment.41 The Liability Annex, eventually adopted in 2005, puts forwards a Statecentred, public law type of approach to the question of environmental liability. Article 5 states that ‘Each Party shall require each of its operators to take prompt and effective response action to environmental emergencies arising from the activities of that operator’. Environmental emergency is 37   Article 2 of the Madrid Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, ILM 1991, p 1455; see Francioni F, ‘The Madrid Protocol on the Protection of the Antarctic Environment’ (1993) Texas Journal of International Law 47 ff. 38   Shibata A, ‘How to Design an International Liability Regime for Public Spaces: The Case of the Antarctic Environment’ in Komori T and Wellens K (eds), Public Interest Rules of International Law: Towards Effective Implementation (Farnham, 2009) 347 ff. 39   See para 4 and 5 of the Preamble to the Antarctic Treaty; see also Voneky S, ‘The Liability Annex to the Protocol on Environmental Protection to the Antarctic Treaty’ in Konig D et al (eds), International Law Today: New Challenges and the Need for Reform? (Berlin, 2008) 165 ff, 173. 40  See Francioni F, ‘Liability for Damage to the Common Environment: The Case of Antarctica’ (1994) Review of European Community and International Environmental Law 223 ff. 41   Vigni P, ‘A Liability Regime for Antarctica’ (2006) Italian Yearbook of International Law 214 ff.

408  Emanuela Orlando defined in the Annex as ‘any accidental event that (. . .) results in, or imminently threatens to result in, any significant harmful impact on the Antarctic environment’. The response action shall aim at minimizing or containing the impact of the environmental emergency, including by carrying out a clean-up of the area, where appropriate, and determining the extent and impact of the environmental emergency. The operator’s liability arises in the event of its failure to comply with the obligation to take response action and it is limited to the costs of the response action that should have been undertaken.42 In this case, the operator shall pay the relevant amount either to the Party that undertook the response action or, in the case where no response action was taken by any Party, to a special fund set up by the Annex, to the Party of the non-State operator or the Party that activated the enforcement mechanisms. Because of the lack of territorial jurisdiction on the Antarctic treaty area, the question of which Party would have standing for the enforcement and actual implementation of liability against the operator proved particularly difficult. In order to address this point, the Annex entitles the only Party that has taken the response action to act against the operator, either in the courts of a Party where the operator is incorporated, has its principal place of business or habitual place of residence if it is a non-State operator, or through the dispute settlement procedure of the Protocol if the operator is a State agent. In cases of environmental emergency for which no other Party has taken the response action, the Annex distinguishes between State operators and non-State operators’ liability. In case of State operators’ liability, it provides for an enquiry procedure which may be established by the Parties, or an institutionalized mechanism of implementation and compulsory settlement of disputes by arbitration or in the ICJ, according to Articles 18, 19 and 20 of the Madrid Protocol.43 For the liability of non-State operators, the Annex deviates from traditional patterns of civil liability or State responsibility and introduces the possibility of implementing liability through administrative and penal approaches, whereby either the Party of the operator or any other Party is entitled to enforce the operator’s liability in domestic courts; the broad and generic formulation of this provision leaves enough flexibility to pursue it by means of administrative or penal, rather than civil, approaches. Although liability is ultimately limited to the costs of response action, the Annex nevertheless offers an interesting and innovative design for an environmental liability regime aimed at protecting the public environment. It is therefore an interesting starting point model for relevant developments on the international level. To some extent, the specific problems arising in relation to the establishment of a liability regime for Antarctica   Article 6 of the Liability Annex.   Article 7(4)(5) of the Liability Annex.

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  Public and Private  409 mirror those that would arise in the elaboration of a prospective inter­ national liability regime for damage to the common environment; thus, the Antarctic liability regime could provide a model for future ‘public’ liability regimes.44 B.  The Nagoya – Kuala Lumpur Supplementary Protocol The idea of an administrative approach to liability for damage to the conservation and sustainable use of biological diversity has also gained prominence in the negotiations on the elaboration of international rules and procedures on liability and redress under the Convention on Biological Diversity. During the lengthy negotiations that eventually led to the adoption of a liability supplementary protocol to the Cartagena Protocol on Biosafety for biodiversity damage caused by the transboundary movement of living modified organisms (LMOs), the contrasts revolved around the nature of the future regime and whether it should be legally binding. While most developing countries called for a binding international regime based on substantive civil liability rules, the majority of developed countries clearly supported the idea of an international framework on which to implement a domestic administrative approach. The emergence of a group of ‘Like-Minded Friends’ (around 80 developing country Parties plus Norway, and including all the Africa Group), at a time where negotiations seemed stalled, favoured the achievement of a compromise agreement, which provided the basis for the final text of the Biosafety Protocol. The Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety was adopted in Nagoya, Japan, on 15 October 2010. The Nagoya Protocol is the second liability instrument to be concluded in the context of a multilateral environmental agreement, the first being the 1999 Protocol on Liability and Compensation to the Basel Convention on Transboundary Movement of Hazardous Wastes (Basel Protocol). Unlike its predecessor, which primarily addressed traditional damage to private Parties occurring during a transboundary movement of hazardous wastes, the Nagoya Protocol covers ecological damage to biological diversity. The environmental and public law nature of this instrument emerges already from its stated objective. According to Article 1, the purpose of the Supplementary Protocol is ‘to contribute to the conservation and sustainable use of biological diversity, taking also into account risks to human health’.45 The structure and functional scope of the liability regime are  Shibata A (n 38).   Article 1 of the Supplementary Protocol.

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410  Emanuela Orlando related to this underlying objective. The Supplementary Protocol only covers biodiversity damage, defined as an adverse effect on the conservation and sustainable use of biological diversity taking into account risks to human health; private types of damage are excluded. Accordingly, the remedies do not include compensation or redress for private Parties, but consist of response measures which are classified between preventive types of measures – typically to prevent, minimize, contain, mitigate or otherwise avoid the damage – and restoration measures; in particular, restoration includes action to restore biological diversity, with a preference for primary restoration of biological diversity to the condition prior to the occurrence of the damage or to its nearest equivalent; alternatively, restoration measures may consist of replacing the loss of that specific biological diversity with other biological diversity components offering an equivalent type of use, either at the same or, as appropriate, at an alternative location. For the actual implementation and enforcement of the liability regime against the operator responsible for the harmful transboundary movement of LMOs, the Supplementary Protocol opts for an administrative, public law approach, which in some respects resembles the one under the Antarctic Treaty. Under Article 5 of the Supplementary Protocol, the operator in control of the LMOs is liable to take all the appropriate response measures, to inform the competent authority and evaluate the damage. To this aim, the Protocol envisages the establishment, in each State Party, of competent authorities entrusted with the implementation and enforcement of the liability regime, including identifying the operator, evaluating the damage and assessing the need for further response measures. It also requires the Party to enable the competent authorities to take the appropriate response measures themselves, particularly in those situations where the operator has failed to do so, subject to their right of recourse against the operator to recover costs and expenses incurred.46 In spite of being the fruit of a compromise between different stances and opposing views, the Nagoya-Kuala Lumpur Supplementary Protocol is a welcome piece in the complex puzzle of the international law of envir­ onmental liability. Though not perfect and still limited to the sector specific issue of biodiversity damage deriving from the transboundary movement of genetically modified organisms, it offers a further example of liability rules used in support of environmental objectives. The public law type of liability and the focus on the restoration of the impaired biological resources further contribute to shape an emerging consensus on the need to tailor liability regimes to encompass the special features of ecological damage.   Article 5(4)(5).

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  Public and Private  411 C.  The Guidelines for the Determination of Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area The issue of a liability and compensation regime for pollution damage in the Mediterranean Sea finds its legal basis in Article 16 of the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), which commits the contracting Parties to cooperate in the formulation and adoption of appropriate rules and procedures for the determination of liability and compensation for damage resulting from pollution of the marine environment in the Mediterranean Sea Area. This is not the first time that an international environmental convention contains a programmatic provision envisaging the future development of secondary rules on liability and redress.47 Yet, the scarce follow-up of these provisions, at least for what concerns the marine environment, has led legal scholars to define these Articles as ‘dead letters in the sea’48 or ‘Greek Calendar’ provisions.49 Under the Barcelona Protocol, however, the question of liability and compensation for damage to the Mediterranean marine environment has eventually been dealt with through the adoption, on 18 January 2008, of the Guidelines for the Determination of Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea (hereinafter referred to as ‘The Mediterranean Sea Liability Guidelines’).50 The Mediterranean Sea Liability Guidelines have been developed within the framework of the UNEP – Mediterranean Action Plan (MAP) on the basis of an earlier draft prepared by the UNEP – MAP Secretariat and presented at an experts’ meeting in Brijuni, Croatia, in 1997.51 The text, adopted during the 15th Meeting of the Contracting Parties to the Barcelona Convention, revealed a general consensus among the parties of the environmental objectives which should be underlining the environmental liability regime for the Mediterranean Sea and the idea of the State as a 47  See Scovazzi T, ‘State Responsibility for Environmental Harm’ (2002) Yearbook of International Environmental Law 43 ff. 48   Lefeber R, ‘The Liability Provisions of Regional Seas Conventions: Dead Letters in the Sea?’ in Vidas D and Oestreng W (eds), Order for the Oceans at the Turn of the Century (The Hague/Boston, 1999) 507 ff. 49   Scovazzi T (n 47). 50   Guidelines for the Determination of Liability and Compensation for Damage resulting from Pollution of the Marine Environment in the Mediterranean Sea Area, UNEP(DEPI)/MED IG.17/10 Annex V, 133 51   On the preparatory work leading to the adoption of the current text of the Guidelines see Scovazzi T, ‘The Mediterranean Guidelines for the Determination of Environmental Liability and Compensation: The Negotiations for the Instrument and the Question of Damage that can be Compensated’ (2009) Max Planck Yearbook of United Nations Law 183 ff.

412  Emanuela Orlando trustee of the general interest in the protection of the Mediterranean marine environment.52 These guidelines do not have a binding character, however; ‘they intend to strengthen the parties’ cooperation for the development of a regime of liability and compensation for damage resulting from pollution of the marine environment and to facilitate the adoption by the Contracting Parties of relevant legislation’.53 They essentially aim at promoting convergence among the various national approaches on this issue. Therefore, they indicate the type of provisions that should be included in the domestic legislation of the various contracting parties in order to address damage to the marine environment in the Mediterranean Sea. Moreover, they have a complementary character, and ‘are without prejudice to existing global and regional environmental liability and compensation regimes which are either in force or may enter into force’.54 The scope of compensable damage is crafted in a way as to cover both the private and public law aspects of environmental harm. They distinguish between traditional damage and ‘environmental damage’. ‘Environmental damage’ includes damage caused by the impairment of the marine and coastal environment of the Mediterranean Sea and is defined as ‘a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’. Remedies for environmental damage include the complex set of activities involved in the evaluation, assessment and restoration of the ecological features of the environment; they also cover the preventive measures taken to prevent a threat of damage or an aggravation of damage, thereby extending the scope of liability to cover the ex ante situation of imminent threat of environmental damage. Remarkably, besides the costs of measures to clean up, restore and reinstate the impaired environment, compensatory measures shall consider the diminution of the value of natural resources pending restoration (the so-called ‘interim losses’) and equivalent compensation if the impaired environment cannot return to its previous conditions. The mechanism to actually implement and enforce liability reflects the dual dimension of the damage covered by the Mediterranean Sea Liability Guidelines. A two-system approach is envisaged, whereby alongside civil liability for compensation for traditional forms of damage, an administrative type of enforcement is available for the environmental aspects of the damage. In this respect, paragraph 31 and 32 of the guidelines, dealing with action for compensation, state that the ‘Contracting Parties should identify the public authorities which are entitled to bring action in court for the compensation of environmental damage under the Guidelines’. Parallel provisions also envisage a broad involvement of the public,   Ibid.   Mediterranean Sea Liability Guidelines (n 50) 54   Mediterranean Sea Liability Guidelines B, ‘Relationship with Other Regimes’, para 5. 52 53

  Public and Private  413 including non-governmental organizations (NGOs) active in the environmental field, in the procedure to enforce compensation for environmental damage and, generally, in having access to information concerning envir­ onmental damage or threat of such damage. The relevance accorded to the public and to NGOs sets the Guidelines in line with relevant inter­ national instruments for the protection of the environment55 and with the idea of the environment as a public and common good. The Mediterranean Sea Liability Guidelines do not provide specific indication on the financial limit of the operator’s liability and on the establishment of a financial and security scheme, leaving these issues to be addressed in the national legislation of the various contracting parties. Nevertheless, they both encourage the Parties to develop insurance or other financial security instruments and markets, and to work for the establishment of a Mediterranean Compensation Fund for the cases where the damage exceeds the operator’s liability, where the operator is unknown or incapable of meeting the relevant costs of restoration, or where the State authority has taken the preventive measures in emergency situations and is not reimbursed for the costs thereof. The above examined legal instruments respectively addressing damage to the Antarctic environment, biodiversity damage, and pollution damage in the Mediterranean Sea, show the gradual recognition in international law of liability for ecological damage, and overcome the traditional opposition to the compensation of damage not economically quantifiable. The focus on the ecological aspects of the damage has also entailed an adjustment of the classic contents of liability norms to accommodate the special features of environmental damage. There is an increased emphasis on the preventive aspects of liability, either by providing response action or generally including preventive measures to contain, minimize and, in some cases, avoid the occurrence of the damage.56 Furthermore, rather than on monetary compensation and the economic quantification of environmental damage, reparation tends to focus on the actual measures needed to address the situation of environmental emergency or to restore the environment. Finally, both the Supplementary Protocol on liability for biodiversity damage and the Mediterranean Sea Liability Guidelines provides a progressive approach to reinstatement of the natural environment, by including the recourse to alternative restoration measures and taking into consideration the interim diminution in value of natural resources pending full recovery. 55   These include, typically, the Aarhus Convention on access to information, public participation and access to justice in environmental matters, but also other regional instruments, including certain provisions retained in EU environmental legislation. 56   This is the case in the Mediterranean Sea Liability Guidelines which also include measures to address and prevent the threat of environmental damage.

414  Emanuela Orlando These more recent developments also reveal a consistent trend towards a central role played by the State authorities in the implementation and enforcement of liability, and a greater involvement of the public, including NGOs active in the field. Overall, they mirror a general understanding of liability rules as an instrument to attain the common good of the protection of the public environment and as forming an integral part of envir­ onmental protection strategies. On the other hand, the lengthy and controversial negotiations leading to the adoption of the final texts of the liability regimes, and the lack of consensus on certain crucial issues warn caution against an excessive optimism concerning the impact of the new environmental liability rules. In particular, the non-binding character of the Mediterranean liability guidelines and the limited scope of response action in the Antarctic treaty are signals of the fact that the liability issue still remains a sensitive and controversial battleground, where solutions are often achieved by means of compromise and trade-off. Against this background, it is nonetheless appropriate to ascertain whether and to what extent these new developments may have any influence on the future development of general international law norms on responsibility and reparation for environmental harm. To this purpose, the following section will look at certain developments taking place in the field of international law of State responsibility and liability. VI.  EMERGING TRENDS IN THE LAW OF STATE RESPONSIBILITY

Compared with the relatively more dynamic moves that are taking place at the level of conventional norms, general international law still appears to lag behind the definition of a set of international principles on liability and reparation generally applicable to environmental damage. Under customary international law, the liability of the State, and thereby its obligation to make reparation, is framed in terms of a secondary obligation deriving from the violation of a primary norm of international law. Accordingly, the liability of the State for transboundary environmental harm would arise as a consequence of the perpetration of a wrongful act, specifically the violation by the State of an international environmental rule. Besides the difficulties in encompassing the special features of environmental damage into the somewhat rigid structure of the law of State responsibility,57 and those deriving from the vague content of many environmental law obligations, a major problem hampering the affirmation of 57   See, among others, Brunnée J, ‘The Responsibility of States for Environmental Harm in a Multinational Context – Problems and Trends’ (1993) Les Cahiers de Droit 827 ff.

  Public and Private  415 a customary rule of State liability for environmental harm is the almost total lack of a consistent State and judicial practice. With the exception of the Trail Smelter,58 and a few other international cases, reparation for envir­ onmental damage has very often taken the form of an ex gratia payment, through extra-judicial means of settlement; in most cases there has not been any official assertion of responsibility. From a more positive angle, however, some scholars have interpreted the efforts of the international community to elaborate international norms on liability and compensation in the context of international treaties and conventions as an implicit acceptance of the principle that States shall ensure reparation for the consequence of transboundary envir­ onmental harm.59 From this perspective, it is also possible to discern a progressive penetration of the developments occurring at the level of conventional norms into the shape of a still embryonic international law regime for the reparation of harm to the environment. An important initiative in this sense is the work of the International Law Commission (ILC) on the question of compensation for transboundary harm arising out of hazardous activities. The Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, adopted by the ILC in 2006, are the result of a careful analysis of State practice at national and on the international level concerning various existing models for the allocation of loss in case of transboundary damage.60 Essentially they attempt to identify the main common elements emerging in this field, with a view to providing guidance to States for further elaboration. An important feature of the 2006 Principles, compared to earlier work of the ILC on this topic, is the ‘codification’ of conventional practice focusing on the liability of private operators, rather than try to establish an international principle of State liability. Besides the goal of prompt and adequate compensation of private victims, however, the ILC acknowledges that there is a discernible shift in treaty practice towards a greater focus on damage to the environment per se, and recognizes that States may pursue claims for environmental damage which shall be mitigated through prompt response measures and, to the extent possible, shall be restored or reinstated.61 Accordingly, Principle 2 admits claims for environmental damage, including loss or damage by   Trail Smelter (n 6)   Lefeber R, Transboundary Environmental Interference and the Origin of State Liability (The Hague, 1996) 230; also, International Law Commission, Special Rapporteur Rao, First Report on the Legal Regime for Allocation of Loss in Case of Transboundary Harm Arising out of Hazardous Activities (A/CN.4/531, 21 March 2003), para 150. 60   Draft Principles on the Allocation of Loss in the case of Transboundary Harm arising out of Hazardous Activities, adopted by the International Law Commission at its 58th session in 2006, Yearbook of the International Law Commission, 2006, vol II, Part Two. 61   ILC, ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities’ (Yearbook of the ILC, 2006), vol 2, Part Two. 58 59

416  Emanuela Orlando impairment of the environment; the costs of reasonable measures of reinstatement of the environment, including natural resources; and the costs of reasonable response measures. Although this definition of environmental damage very much recalls the one provided by the civil liability treaties, the ILC emphasizes that such definition of environmental damage not only builds upon trends that have already become prominent as part of recently concluded international liability regimes, but shall open up possibilities for further development of the law for the protection of the environment per se.62 In particular, the ILC Commentaries recognize that recent treaty practice and domestic law increasingly tend to provide a broad scope of compensatory measures, which include measures aimed to assess, reinstate or restore damage or destroyed components of the environment, as well as action to introduce, where appropriate, the equivalent of these components into the environment.63 A further element in support of the above findings is offered by the work of the United Nations Compensation Commission (UNCC), the subsidiary organ of the Security Council created with the mandate of managing claims arising from Iraq’s unlawful invasion of Kuwait. In the case of F-4 category of environmental and public health claims, the F-4 Panel of the UNCC allowed claims for compensation for damage to natural resources without commercial value (pure environmental damage, or ecological damage) and also claims where there was only a temporary loss of resource use during the period prior to full restoration.64 VII.  PRESENT LIMITS AND PROSPECTIVE DEVELOPMENTS OF THE LAW OF ENVIRONMENTAL LIABILITY FACING CURRENT GLOBAL ENVIRONMENTAL CHALLENGES

The global and pervasive nature of many of the current environmental challenges illuminates the limits of the law of environmental liability, but it also highlights possible options for further developments. Two types of limits can be identified: first there are the limits deriving from a still outdated international law framework of liability and responsibility to deal with the global and holistic nature of the environment as an international common good.65 The international law framework on responsibility and   Ibid, para 11, 128.   Ibid, para 15, 131. 64   UNCC, Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Installment of ‘F4’ claims, 30th June 2005, S/AC.26/2005/10, accessible at . 65   See, for the idea of the natural environment as a ‘common good’ the recent article by Francioni F, ‘Realism, Utopia and the Future of International Environmental Law’, EUI Working Paper, Department of Law, 2012/11, 1 ff. 62 63

  Public and Private  417 liability for environmental harm is still anchored to the idea of territorial jurisdiction, whereby environmental damage is relevant only in so far as it becomes a transboundary interference in another State’s territory. Such an approach, which is nonetheless retained in most environmental liability treaties as well as in the ILC Articles on State responsibility and the Draft Principles on Allocation of Loss, still focuses on transboundary damage, and does not fit with the expanding reach of primary environmental norms which also cover areas beyond national jurisdiction. More generally, it stands at odds with an emerging idea of the environment as a global common good. The previous analysis has nevertheless tried to show that there are some moves towards an increasing recognition of the public dimension of the environment in the structure and functional scope of liability regimes. The analysis of international conventions and State practice reveals an international legal framework in the field of environmental liability increasingly characterized by the coexistence of public and private law aspects of environmental regulation. The progressive inclusion of ecological damage bears positive implications for the elaboration of new and alternative tools for the valuation and assessment of this type of damage; it also prompted new approaches to the enforcement of environmental liability which combine the structural elements of civil liability in private law within an administrative law framework where State authorities play a central role in the defence of the public environment. Finally, the inclusion of liability rules to form an integral part of environmental protection strategies reveals a gradual convergence and complementarity between the aims and goals of civil liability and the public law norms on prevention. Again, the work of the ILC which combines the Draft Articles on Prevention with the Draft Principles on Allocation of Losses seems to point towards this conclusion. A prospective international regime of environmental liability which reflects the idea of the environment as a common good should also provide specific norms allowing greater involvement of the public, including NGOs active in the environmental field, both in the enforcement of liability and in the identification and assessment of restoration measures. Unfortunately, with the possible exception of the Mediterranean Sea liability Guidelines, both conventional regimes and the work of the ILC do not seem to recognize the emerging environmental movement and the ever prominent role of NGO and of the public in general. Even though the Antarctic Treaty and the Biosafety Liability Protocol endorse a promising public law approach to the reparation of environmental damage, they are still very much centred around the idea of States as the main, and possibly only, actors in the protection of the environment. At the regional level, the Aarhus Convention affirms the fundamental principles of public participation, access to information and access to justice in

418  Emanuela Orlando environmental matters, thereby launching important signals of environmental democracy. Hopefully, such message will soon penetrate in the realm of international liability rules. The second type of limits that arise when the effectiveness of current liability rules is assessed against the current environmental threats which affect the common environment – such as climate change, maritime pollution of the high seas, air pollution and so on – are those inherent to the structure of liability rules. Liability is per se structurally inadequate to deal with cases of diffuse pollution caused by multiple sources, unless it is possible to identify the activity source of the damage according to a clear link of causality. In fact, even the rather progressive text of the Mediterranean Sea Liability Guidelines restrict their application to damage caused by pollution of a diffuse character only to the extent that ‘it is possible to establish a causal link between the damage and the activities of the individual operators’, providing in such case for an apportionment of liability on the basis of an equitable assessment of their contribution to the damage. Yet, diffuse and widespread pollution deriving from human activities that are causing serious harm to the common environment should not be exempted from the scope of an effective system of liability. Basic principles of environmental justice and a rigorous application of the polluter pays principle mandate the implementation of a system of internalization of the environmental costs of economic activities. This can be achieved, either by exploring alternative solutions to the apportionment of liability or through a re-qualification of the idea of environmental liability. A number of legal rules have, thus, been elaborated in order to introduce greater flexibility in the causality nexus, such as the reversal of the burden of proof or the presumption of causality. The creation of funds financed by the operators responsible for high risks and potentially harmful activities is an interesting attempt to de-link liability from causality and even from actual damage. In national law, discussions and support for the establishment of compensation funds typically concerned those sectors in which it is difficult to identify a specific liable entity. In inter­ national law, the institution of compensation funds, similar to private forms of insurance, have taken place in specific sectors of hazardous activities, in support to the establishment of systems of civil liability, and are often regarded as a means of overcoming the limitations of the international law of State responsibility.66 New types of liability are explored alongside and in addition to civil liability. In particular, the recognition of the environment as a public good 66   Dupuy PM, ‘A propos des Mésaventures de la Responsabilité Internationale des États dans ses Rapports avec la Protection Internationale de l’environnement’ in Prieur M and Lambrechts C (eds), Les Hommes et L’Environnement: Quels Droits Pour le Vingt-et-unième Siècle? (Paris, 2002) 269 ff.

  Public and Private  419 justifies the recourse to other, more-publicly oriented types of legislative action such as may be found in administrative schemes of regulation or criminal law. After a major focus on the law of civil liability for environmental damage, there is a renewed interest in the criminal law aspects of environmental liability. A number of initiatives in Europe67 and on the international level are moving in that direction, thereby pointing to the complementary role that criminal law can play in strengthening compliance with environmental norms. In the field of climate change, an interesting use is made of the law and institutional structures in the field of human rights to claim redress for damage caused by climate change. Here, the individualistic frame typical of human rights litigation is adapted to highlight the devastating effects of global warming on the enjoyment of fundamental human rights of entire communities. To conclude, law is an evolving and flexible instrument; creativity and imagination combined with an approach based on mutual learning and complementarity may help to find the appropriate solution to new problems. Hopefully, prospective developments in the field of environmental liability will contribute to the protection of the global environment, as an international common good.

67   Directive 2008/99/EC on the protection of the environment through criminal law [2008] OJ L328, 28–37; 1998 Council of Europe Convention on the Protection of the Environment through Criminal law, ETS No 172.

20 Protecting Environmental Rights through the Bilateral Agreements of the European Union: Mapping the Field ELISA MORGERA

T

HE EU HAS used its external relations tools, in particular its bilateral agreements, to ensure the protection of human rights in third countries, notably through human rights conditionalities.1 It has not, however, addressed environmental rights2 in that context. And while it has developed a significant and increasingly convergent practice of integrating environmental concerns in its external relations tools, in particular its bilateral agreements,3 it has not systematically used environmental cooperation provisions to contribute to the protection of environmental rights4 abroad. Nevertheless, opportunities to contribute to the protection of environmental rights in the EU’s external relations exist. As international and EU legal scholars have started relatively recently to study the environmental dimension of the EU’s external relations,5   Bartels L, Human Rights Conditionality in the EU’s International Agreements (Oxford, 2005).   Environmental rights can be defined as ‘rights understood to be related to environmental protection’: Preliminary report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H Knox, UN Doc A/HRC/22/43 (2012), para 7. 3   Marín Durán G and Morgera E, Environmental Integration in the EU’s External Relations: Beyond Multilateral Dimensions (Oxford, 2012), particularly ch 2. 4  Academic literature on the linkages between the environment and human rights in international law is abundant: see Francioni F, ‘International Human Rights in an Environmental Horizon’ (2010) European Journal of International Law 41 ff; Boyle A, ‘Human Rights or Environmental Rights: A Reassessment?’ (2007) Fordham Environmental Law Review 471 ff; and Boyle A, ‘Human Rights and the Environment: Where Next?’ (2012) European Journal of International Law 613. 5   Pallemaerts M (ed), The EU and Sustainable Development: Internal and External Dimensions (Brussels, 2006); Morgera E (ed), The External Environmental Policy of the European Union: EU and International Law Perspectives (Cambridge, 2012); and, to a lesser extent, Pallemaerts M (ed), The Aarhus Convention at Ten. Interactions and Tensions between Conventional International Law and EU Environmental Law (Groningen, 2011). The EU’s climate action has received far more attention, although generally with reference to internal legislation with external effects or implications: Oberthür S and Pallemaerts M (eds), The New Climate Policies of the European 1 2

422  Elisa Morgera however, it comes as no surprise that little attention has yet been paid to the potential of EU bilateral agreements to contribute to environmental rights protection. The present chapter aims to map the field, identifying existing and future opportunities for utilizing EU bilateral agreements to promote the protection of environmental rights, as well as available legal avenues to address missed opportunities and possible risks that EU envir­onmental action abroad may negatively impact on environmental rights in third countries. It starts with a brief overview of the external environmental policy of the EU, including constitutional requirements to couple human rights and environmental protection in external relations and an introduction to the practice of EU bilateral agreements. The chapter will then provide a snapshot of the environment-and-humanrights connection in EU law from an internal perspective, to demonstrate the political sensitivity of the issue. Against this background, the central part of the chapter will identify six thematic areas in which entry points for the protection of environmental rights exist in the framework of EU bilateral agreements. The final section will offer a preliminary reflection of the human rights risks of current environmental external relations and possible avenues to address these interactions in EU and inter­ national law. I.  THE EU’S EXTERNAL ENVIRONMENTAL ACTION

Following the entry into force of the Treaty of Lisbon, it has become explicit that the EU’s external environmental action is expected to support human rights in fostering the sustainable environmental development of developing countries, with the primary aim of eradicating poverty, and helping develop international environmental measures. Equally, all EU external action (notably in non-environmental policy areas, such as trade, development and human rights) is expected to contribute, inter alia, to the development of international environmental measures and developing countries’ sustainable environmental development.6 The implication of these specific dimensions of the principle of coherence in the EU external action is that there are indeed several ways in which the EU could use its Union: Internal Legislation and Climate Diplomacy (Brussels, 2010); Scott J, ‘The Multi-Level Governance of Climate Change’ (2011) Carbon and Climate Law Review 25 ff; Scott J and Rajamani L, ‘EU Climate Change Unilateralism: International Aviation in the European Emissions Trading Scheme’ (2012) European Journal of International Law 469 ff, and Kulovesi K, ‘“Make Your Own Special Song, Even if Nobody Else Sings Along”: International Aviation Emissions and the EU Emissions Trading Scheme’ (2011) Climate Law 535 ff. 6  Article 21(2)(b) read in conjunction with Article 21(2)(d) and (f) Treaty on European Union (TEU). For a discussion of coherence in the EU’s external relations and environmental integration, see Cremona M, ‘Coherence and EU External Environmental Policy’ in Morgera E (ed) (n 5) 33 ff.

  Environmental Rights in EU Bilateral Agreements  423 external policies to tackle the linkage between environmental protection and human rights. The above-mentioned Treaty provisions reflect the general principle of environmental integration in all EU policies and activities,7 most likely sharing its unlikely justiciability at EU level.8 It remains unclear whether and to what extent, following the entry into force of the Lisbon Treaty, the accession of the EU to the European Convention on Human Rights9 and the legally binding force recognized to the European Charter on Fundamental Rights10 (which also includes a provision on environmental integration11) would have an impact on access to courts in relation to any shortcomings of EU bilateral agreements from the viewpoint of environmental rights. Nonetheless, relevant references in the EU Treaties, the Charter and the case law of the European Court of Human Rights (ECtHR)12 can still be very influential in the development and implementation of EU bilateral agreements in practice.13 EU bilateral agreements have been concluded with a significant number of third countries that enjoy different types of relationships with the EU. While the name and overall aim of the agreement may change (Partnership and Cooperation Agreement, Association Agreements, etc),14 all these agreements tend to cover a variety of policy areas and generally include environmental provisions aimed both at pursuing environmental cooperation and at integrating environmental concerns in other policy areas, based on a cooperative and consultative approach. Earlier bilateral agreements tended to take a varied approach in relation to the legal strength and detail of environmental clauses, the selection of priorities for environmental cooperation, the specific cooperation areas in which the environmental concerns were integrated, and institutional mechanisms.15 More recent bilateral agreements, however, reflect a more coherent approach, whereby sophisticated clauses on environmental cooperation increasingly rely on international environmental standards. Since 2005 we can in fact identify a new wave of ‘post-Global Europe agreements’16 establishing obligations to   Article 11 Treaty on the Functioning of the European Union (TFEU).   For a discussion, Cremona M (n 6) 39–40; and Marín Durán G and Morgera E (n 3) 32–34. 9   Article 6(2) TEU. 10   Article 6(1) TEU. 11   Article 37, European Charter on Fundamental Rights. For a discussion of its legal relevance, see Marín Durán G and Morgera E, ‘Commentary on Article 37 – Environmental Protection’ in Peers S et al (eds), Commentary on the EU Charter of Fundamental Rights (Oxford, 2014). 12   de Sadeleer N, ‘Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases’ (2012) Nordic Journal of International Law 39 ff, 61–73. 13   Marín Durán G and Morgera E (n 3) 285–88. 14   For a discussion of the various types of agreements and their rationales, see ibid, 59–64. 15   Ibid, 134. 16   As their negotiations were launched by the Commission, ‘Communication – Global Europe: Competing in the World: A Contribution to the EU’s Growth and Jobs Strategy” COM (2006) 567 final, 4 October 2006. 7 8

424  Elisa Morgera effectively implement and enforce key multilateral environmental agreements (MEAs) in the context of trade and sustainable development chapters.17 In addition, environment-specific cooperative monitoring and dispute-resolution mechanisms are set up in that context, requiring the involvement of environmental experts and allowing also for advice to be sought from MEA Secretariats.18 While bilateral agreements will be the focus of this chapter, it should be borne in mind that these agreements are implemented in the context of other tools of a legal and non-legal nature that the EU deploys in its bilateral relations to pursue environmental objectives. The negotiations of bilateral agreements are preceded by Sustainability Impact Assessments (SIAs), which contribute to identify trade-offs between the trade com­ ponent of the agreement under negotiation and environmental protection in the EU and in the partner country.19 SIAs thus often serve to address global environmental issues or instruments.20 SIAs are mainly to feed into the negotiations of bilateral agreements, but their outcomes should also be taken into account in the implementation of these agreements, particularly because some of the recommendations emerging from SIAs may be addressed through other EU external relations tools, such as financial and technical assistance. For the vast majority of bilateral agreements, a different legal framework applies to EU external assistance,21 which is composed of a series of unilateral EU legal instruments, whereby environment-related financial and technical support to third countries is provided on a thematic or geographic basis and is mostly sourced from the EU budget. The EU’s external assistance is increasingly targeting the implementation of key MEAs, as well as contributions to the reform of global environmental governance with the explicit objective of shaping it by the external dimensions of the EU’s own environment and climate change policies.22 In addition, the EU institutionalizes a plethora of policy dialogues with various individual developed and developing countries, and with various groups of third countries, for the periodic exchange of views 17   Marín Durán G and Morgera E (n 3) 133–42, and for an insider’s perspective, Zvelc R, ‘Environmental Integration in the EU Trade Policy: The Examples of the GSP+, Trade Sustainability Impact Assessments and Free Trade Agreements’ in Morgera E (ed) (n 5) 174 ff. 18   This is the case of association agreements (Article 217 TFEU), partnership and cooperation agreements, as well as free trade agreements between the EU and individual third countries or groups of third countries. For a comprehensive assessment, see Marín Durán G and Morgera E (n 3) ch 2. 19   See Commission’s website on SIAs at . 20   Marín Durán G and Morgera E (n 3) ch 6. 21   Ibid, ch 4. See also, Marín Durán G, ‘Environmental Integration in EU Development Cooperation: Responding to International Commitments or its Own Policy Priorities?’ in Morgera E (ed) (n 5) 204 ff. 22   Commission, ‘Environment and Natural Resources Thematic Programme – 2011–2013 Strategy Paper and Multiannual Indicative Programme’, 29 October 2010, 25.

  Environmental Rights in EU Bilateral Agreements  425 on environmental priorities and respective negotiating positions. These exercises, which are mainly organized at the initiative of the EU, serve to develop specific action plans that also address global environmental issues.23 They usually are carried out in addition to the meetings of the institutions created by EU bilateral agreements, as a means to follow up on, and facilitate implementation of, environmental cooperation clauses of bilateral agreements. Dialogues are expected to be informed by SIAs. They may also be used by the EU to support the understanding beyond its borders of certain pieces of EU internal environmental legislation with extraterritorial implications.24 While this contribution focuses on a textual analysis of EU bilateral agreements, future research on environmental rights in this context should also encompass their operation in practice through other external relations instruments. This will be particularly significant as the environmental provisions of EU bilateral agreements have been criticized for their open-ended nature, often avoiding details as regards the procedures and timeframes for implementation.25 It has also been reported that formal differences in the wording of environmental clauses in bilateral agreements do not necessarily have an impact on their actual implementation, which instead rests with the provision of funding and the continued momentum provided by policy dialogue between the Parties.26 Opportunities for protecting environmental rights through the EU bilateral agreements thus need to be verified also in the context of other external tools.27 II.  SETTING THE SCENE: ENVIRONMENTAL RIGHTS WITHIN THE EU

Before turning to the identification of specific entry-points for environmental rights in EU bilateral agreements, it is instructive to take stock of the limited extent to which environmental rights are recognized and protected within the EU. At the outset, it is clear that the EU internally has not embraced the protection and promotion of environmental rights to a significant extent. First of all, while environmental protection is included in the EU Charter of   Marín Durán G and Morgera E (n 3) ch 5.   For a discussion of the complex relationships between these various external relations tools, and implications for transparency and effectiveness, see Morgera E, ‘Ambition, Complexity and Legitimacy of Pursuing Mutual Supportiveness through the EU’s External Environmental Action’ in Van Vooren B, Blockmans S and Wouters J, The EU’s Role in Global Governance: The Legal Dimension (Oxford, 2013) 194 ff. 25   Chaytor B, ‘Environmental Issues in Economic Partnership Agreements: Implications for Developing Countries’ ICTSD Issue Paper 1, September 2009, 34–35. 26   Greven T, Leopold A and Molinari E, ‘An Analysis of the Relative Effectiveness of Social and Environmental Norms in Free Trade Agreements’, 2009 Study, European Parliament, 25–26. 27   This argument was developed in Marín Durán G and Morgera E (n 3) 142–43. 23 24

426  Elisa Morgera Fundamental Rights, the provision is not framed in human rights terms and is specifically qualified as a ‘principle’28 that ‘shall be judicially cognizable only in the interpretation of [acts that implement it] and in the ruling on their legality.’29 In practice, in light of the case law on the environmental integration principle30 after which the environmental provision of the Charter is modelled,31 it is likely that the exercise of judicial review on the basis of the environmental provision of the Charter will be ‘restricted to verifying that the competent institution did not clearly exceed the bounds of its discretion or misuse its powers’.32 In addition, the Charter excludes that principles such as environmental integration can be used for direct claims for positive action by the Union institutions or Member States authorities.33 Realistically, therefore, the value of the envir­ onmental provision of the Charter may only be that of an interpretative tool. Ultimately, the significance of that provision may rather be political: it signals that the EU is currently unable to uphold a substantive right to a decent environment, as is still ambivalent with respect to procedural environmental rights.34 And the latter is more surprising when one considers the EU’s international obligations under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,35 and those emerging from the case law of the European Court of Human Rights,36 that has gradually but steadily developed an environmental dimension to certain rights protected under the European Convention on Human Rights (ECHR).37 Not only have the EU and its Member States missed an ‘exceptional occasion’38 to recognize any environmental right in the Charter, but the 28   Explanations relating to the Charter of Fundamental Rights (2007) OJ C 303/17 (Charter Explanatory Notes), 33. 29   Charter, Article 52(5). 30   Article 11 TFEU. 31   Charter Explanatory Notes (n 28), 33. 32   Marín Durán G and Morgera E (n11). 33   Charter Article 52(5). 34   Marín Durán G and Morgera E (n 11). 35  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (Aarhus Convention), to which the EU and all of its Member States are Parties. Although it should be noted that in light of Charter Article 53, the procedural environmental rights recognized under the Aarhus Convention may not be restricted or adversely affected by the interpretation of the Charter. 36   The Charter rights that correspond to the rights protected under the ECHR must be given the same meaning and scope as under the ECHR: Charter Article 52(3). There are several rights of that kind that have been interpreted as environmental rights by the ECtHR: see discussion in Marín Durán G and Morgera E (n 11). 37   Council of Europe, Manual on Human Rights and the Environment – Principles Derived from the Case Law of the European Court of Human Rights, 2nd edn (2012). 38   Kiss A, ‘Environmental and Consumer Protection’ in Peers S and Ward A (eds), The EU Charter of Fundamental Rights (Oxford, 2004) 268.

  Environmental Rights in EU Bilateral Agreements  427 continued poor practice in relation to access to justice in environmental matters both at Member State and at EU level contributes in projecting a shadow on the situation of environmental rights in the Union from an internal perspective. Member States still struggle to put in place and implement appropriate national procedures on access to courts for envir­ onmental matters,39 partly due to the lack of progress on the Commission’s legislative proposal for a directive in this area.40 The European Court of Justice has, therefore, had the opportunity to stress that national regulations on access to justice in environmental matters must avoid making the exercise of the right impossible, or excessively difficult, in practice.41 At EU level, on the other hand, the ECJ has ‘obstinately clung to its rigid [Plaumann] doctrine’ on standing, and ‘practically barred’ environmental non-governmental organizations (NGOs) and individuals from bringing cases to EU courts to review the legitimacy of EU environmental acts.42 The practice has continued after the adoption of the Charter, and does not seem to be set to change notwithstanding the amendments introduced by the Lisbon Treaty,43 or the censure of the Compliance Committee of the Aarhus Convention.44 This regrettable situation is compounded by the extremely narrow scope for administrative review of EU acts under the regulation implementing the Aarhus Convention at the level of the EU institutions,45 and its ‘extremely restrictive’ interpretation.46 And notwithstanding a host 39   de Sadeleer N, Roller G and Dross M (eds), Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (Groningen, 2005). 40   Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Access to Justice in Environmental Matters’ COM(2003) 624 final, Brussels, 24 October 2003. Levels of implementation at national level remain unsatisfactory also with regards to specific provisions on access to justice in existing EU environmental law: Poncelet C, ‘Access to Justice in Environmental Matters – Does the European Union Comply with its Obligations?’ (2012) Journal of Environmental Law 287 ff, 289–95; and Jans JH and Vedder HHB, European Environmental Law after Lisbon (Groningen, 2012) 228–37. 41  Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, (2011), ECR I-1255, paras 46–51. 42   Poncelet C (n 40) 298. See also Kramer L, ‘Environmental Justice in the European Court of Justice’ in Ebbesson J and Okowa P (eds), Environmental Law and Justice in Context (Cambridge, 2009). 43   See the new provision in Article 263(4) TFEU and pessimistic views on whether it can have any impact on access to justice for environmental matters at EU level by Jans JH and Vedder HHB (n 40) 250. 44   Communication to the Aarhus Convention Compliance Committee ACCC/C/2008/32, 2008; in particular, the Compliance Committee’s Findings and Recommendations (2011) UN Doc ECE/MP.PP/C.1/2011/4/Add.1, para 88, which reads: ‘. . . if the [relevant] jurisprudence of the EU Courts on access to justice, were to continue, unless fully compensated for by adequate administrative review procedures, the [EU] would fail to comply with Article 9(3) of the Aarhus Convention.’ 45  Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies [2006] OJ L264/13, Articles 10–11. 46   Jans JH and Harryvan G, ‘Internal Review of EU Environmental Matters: It’s True. Baron Van Munchausen Doesn’t Exist! Some Remarks on the Application of the So-called Aarhus Regulation’ (2010) Review of European and Administrative Law 53 ff. Indeed, the General Court has explicitly affirmed that this provision is ‘not compatible’ with the relevant

428  Elisa Morgera of compelling legal arguments for the ECJ to depart from its (excessively) restrictive approach to standing in environmental matters at EU level,47 the reluctance of the ‘EU institutions to be challenged by environmental organisations’ persists.48 III. OPPORTUNITIES

Possibly because of the political sensitivity attached to environmental rights within the EU, the Union has not used its bilateral agreements with third countries to contribute to the protection of environmental rights. Nevertheless, several existing areas of environmental cooperation provide fertile ground for promoting environmental rights through EU bilateral agreements, including: environmental assessments, traditional knowledge, corporate environmental accountability, forest protection, and climate change. While these have not yet led to an actual practice of the Union to actively promote or at least protect environmental rights beyond its borders, they still represent concrete opportunities that could be readily seized, should the Union consider itself ready to do so. A.  Environmental Impact Assessment Several agreements concluded by the EU with third countries include cooperation clauses specifically targeting environmental impact assessments (EIA).49 Under these clauses, the EU could engage partner countries provision of the Aarhus Convention: Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v European Commission (2012), not yet reported, paras 76–83. 47   Notably a consistent interpretation of Articles 37 and 47 of the Charter with the Aarhus Convention, as well as with the relevant ECtHR case law: Jans JH and Vedder HHB (n 40) 244; Poncelet C (n 40) 302; Pallemaerts M, ‘Access to Justice at EU Level’ in Pallemaerts M (ed), The Aarhus Convention at Ten (n 5) 273 ff, 311. 48   Poncelet C (n 40) 307. 49   Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part [2010] OJ L108/3 (Montenegro, Stabilization and Association Agreement), Article 111; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, 29 April 2008, (Serbia, Association Agreement), Article 111; Euro–Mediterranean Interim Association Agreement on Trade and Cooperation between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part [1997] OJ L187/3, Article 50; Euro–Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part [2006] OJ L143/2, Article 45; Euro–Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part [2002] OJ L129/3, Article 62; Euro–Mediterranean Agreement establishing an Association between the

  Environmental Rights in EU Bilateral Agreements  429 in utilizing EIAs for assessing also environmental rights impacts. EIAs under EU environmental law, in fact, inherently target human health protection,50 and in particular the EIA Directive already includes impacts on ‘human beings’ among those to be assessed.51 In addition, the existing legal obligation for consultations with potentially affected individuals and communities may provide for possible consideration of human rights implications of proposed development that may not be specifically covered by the text of the Directive.52 Furthermore, the EU could use cooperation clauses on EIA to operationalize jointly with third countries relevant international guidelines adopted under the Convention on Biological Diversity (CBD) that have a human rights dimension. For instance, the CBD Guidelines on the incorporation of biodiversity-related issues into EIAs53 call within EIAs for an assessment of several human rights-related issues. These include: interrelated ‘socio-economic, cultural and human-health’ impacts; changes to access to and rights over biological resources; social change processes as a result of a proposed project; sensitive species that may be important for local livelihoods and cultures; activities leading to the displacement of people; and impacts on societal benefits and values related to land-use functions. In addition, the CBD Akwé: Kon Guidelines provide specific suggestions for cultural, environmental and social impact assessment regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities.54 The EU’s own experience, however, in using EIAs internally in a bio­ diversity-inclusive manner (thereby also considering human rights impacts

European Community and its Member States, of the one part, and the State of Israel, of the other part [2000] OJ L147/3, Article 50(2); Cooperation Agreement between the European Community and the People’s Republic of Bangladesh on partnership and development [2001] OJ L118/48, Article 5(1); Cooperation Agreement between the European Community and the Kingdom of Cambodia [1999] OJ L269/18, Article 5; Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part [2001] OJ L90/46, Article 5. 50   Article 191 TFEU. 51   Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 (EIA Directive), Article 3. 52   As also highlighted by Orlando E, ‘Italy report’, for the European Commission-funded project on Study of the Legal Framework on Human Rights and the Environment Applicable to European Union Companies Operating Outside the EU undertaken by the University of Edinburgh (2010). 53   CBD COP Decision VI/7 (2002) UN Doc UNEP/CBD/COP/6/20, Annex. 54   Notably, the Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, in Article 8(j) and related provisions, CBD COP Decision VII/16F (2004) UN Doc UNEP/CBD/COP/7/21, Annex.

430  Elisa Morgera on indigenous and local communities) has so far been quite limited.55 A future attempt by the Union to use environmental assessments so as to protect environmental rights abroad may thus not be considered very credible unless internal regulation and practices improve. B.  Traditional Knowledge There are only a couple of examples of EU bilateral agreements56 that expressly include as an area for cooperation the protection of traditional knowledge of indigenous peoples and local communities, that is the know­ ledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity.57 For instance, the Economic Partnership Agreement with CARIFORUM incorporates the relevant provision of the CBD on traditional knowledge,58 but significantly goes beyond its letter by making reference to the need for ‘prior informed consent’ of relevant indigenous peoples and local communities before access to traditional knowledge can be granted. It thus uses language that is more in line with relevant human rights instruments,59 but which remains controversial in the CBD context.60 55   Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the application and effectiveness of the EIA Directive (COM/2009/0378 final) p 9. 56   Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other [2008] OJ L289/3 (EU-CARIFORUM EPA), Article 150(1); Free Trade Agreement between the EU and its Member States, on one side, and Colombia and Peru, on the other [2012] OJ L354/3 (EU-Colombia and Peru FTA), Article 272. The Agreement has been provisionally applied since March 2013 with regard to Peru and since August 2013 with regard to Colombia. 57   CBD Article 8(j). 58   Ibid, which reads: ‘Each Contracting Party shall, as far as possible and as appropriate: . . . Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.’ 59   Notably, the UN Declaration on the Rights of Indigenous Peoples (2007) UN Doc A/ RES/61/295. 60   Note that reference to ‘prior informed consent’, one of the key tenets of the UN Declaration on the Rights of Indigenous Peoples, cannot be found in the text of the CBD, but rather in a decision adopted by its governing body, namely the Work Programme on Article 8(j), where general principle 4 refers to ‘prior informed consent or prior informed approval from the holders of such knowledge, innovations and practices’ (CBD Decision V/16, (2000) UN Doc UNEP/CBD/COP/5/23, Annex). Nonetheless, evidence of CBD Parties’ inability to unequivocally incorporate ‘prior informed consent’ can be found in the text of the Nagoya Protocol, where reference is made throughout to ‘prior informed consent or the approval and involvement of indigenous and local communities’. For a discussion, Morgera E and Tsioumani E, ‘Yesterday, Today and Tomorrow: Looking Afresh at the Convention on Biological Diversity’ (2011) Yearbook of International Environmental Law 3 ff.

  Environmental Rights in EU Bilateral Agreements  431 Cooperation on traditional knowledge sits at the intersection between international biodiversity law and the protection of the human rights, but is so far circumscribed to EU cooperation in Latin America and the Caribbean. It has, however, the potential to become much more prominent in the near future with partners in other regions. This is due to the adoption in late 2010 of a new international instrument under the CBD framework – the Nagoya Protocol on Access and Benefit-Sharing (ABS),61 which has significant implications from a human rights perspective.62 Despite its often ambiguous language and references to national legislation, the Protocol requires Parties to take the appropriate measures to ensure that traditional knowledge associated with genetic resources is accessed with the prior informed consent of local and indigenous communities or with their approval and involvement.63 It also requires that benefits arising from the utilization of such knowledge, as well as benefits arising from the use of genetic resources held by communities, are shared in a fair and equitable way and on mutually agreed terms with them.64 These are complemented by several other legal obligations of procedural nature that reflect both the recognition of communities’ customary laws and procedures by domestic legal systems and to the establishment of mechanisms to facilitate implementation of ABS-related regulations with regard to traditional knowledge.65 In addition, the future Parties to the Nagoya Protocol are to proactively support communities’ implementation of national ABS regulations, by empowering and preparing them to develop ABS arrangements.66 The implementation of all these provisions will be particularly challenging, in developed and developing countries alike,67 thus providing a fertile ground for cooperation both on legislative development and on institutional and stakeholder capacity-building. As the prompt ratification of the Protocol is considered essential for the EU ‘to continue to lead international biodiversity policy’,68 the Union’s role in 61   For a discussion of the Nagoya Protocol from an EU perspective, Buck M and Hamilton C, ‘The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity’ (2011) Review of European Community and International Environmental Law 47 ff. 62   Savaresi A, ‘The International Human Rights Law Implications of the Nagoya Protocol’ in Morgera E, Buck M and Tsioumani E (eds), The 2010 Nagoya Protocol on Access and BenefitSharing in Perspective: Implications for International Law and Implementation Challenges (Leiden/ Boston, 2013) 53 ff; and Morgera E, Tsioumani E and Buck M (eds), Unraveling the Nagoya Protocol: Commentary on the Protocol on Access and Benefit-Sharing to the Convention on Biological Diversity (Leiden/Boston, forthcoming 2014). 63   Nagoya Protocol, Article 7. 64   Ibid, Article 5(1)–(2). 65   Ibid, Article 12. 66   Ibid, Articles 21–22. 67   See the review of implementation challenges in different regions in Part II of Morgera E, Buck M and Tsioumani E (eds), The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective (n 62). 68   Commission, ‘Communication on Our Life Insurance, Our Natural Capital: An EU Biodiversity Strategy to 2020’ COM (2011) 244 final, 7.

432  Elisa Morgera supporting developing countries in facing the implementation challenges of the Protocol,69 including at the bilateral level,70 can be expected to be equally relevant for the EU’s leadership in this area. C.  Corporate Environmental Accountability Corporate environmental accountability, a term endorsed by the inter­national community at the 2002 World Summit on Sustainable Development (WSSD),71 can be understood as the legitimate expectation that reasonable efforts will be put in place, according to international standards, by private companies and foreign investors for the protection of a certain global environmental interest or the attainment of a certain internationally agreed environmental objective.72 This is another area in which environmental protection and human rights intersect, in particular with respect to natural resource development by private companies and the rights of indigenous and local communities.73 The EU external and internal action on corporate environmental accountability has been through different phases due to both the uncertain fate of multilateral efforts in this area and also changes in direction of EU policies. In parallel, integration of corporate environmental accountability in EU external relations has been subject to an evolution.74 As early as in 1999 the European Parliament called on the Commission and the Council to develop a legal instrument establishing a European multilateral framework governing companies operating worldwide.75 EU ‘domestic’ regulation, however, 69   The various implementation challenges that will be faced by developing countries are outlined in detail in Article 22 of the Nagoya Protocol (‘Capacity’). 70   Morgera E, ‘The Trajectory of EU Biodiversity Cooperation: Supporting Environmental Multilateralism Through EU External Action’ in Morgera E (ed) (n 5) 235 ff. On the usefulness of bilateral approaches to support the implementation of the Nagoya Protocol, see T Young, ‘An International Cooperation Perspective on the Implementation of the Nagoya Protocol’ in Morgera E, Buck M and Tsioumani E, The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective (n 62) 451 ff, 496–98. 71   Paragraph 49 of the WSSD Plan of Implementation (2002), UN Doc A/CONF.199/20, Resolution 2, Annex. 72   Morgera E, Corporate Accountability in International Environmental Law (Oxford/New York, 2009) ch 2. 73   See in particular the Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (2009), UN Doc A/HRC/12/34, Section E; and Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya (2010), UN Doc A/HRC/15/37, section III. For a discussion, Morgera E, ‘From Corporate Social Responsibility to Accountability Mechanisms’ in Dupuy PM and Vinuales J (eds), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards (Cambridge, 2013) 321 ff. 74   Marín Durán G and Morgera E (n 3) 277–79. 75   European Parliament, Resolution on EU Standards for European Enterprises Operating in Developing Countries: Towards a European Code of Conduct [1999] (A4-0508/98) OJ C104/180, particularly para 23, as discussed in Augenstein D et al, Study of the Legal Framework on Human Rights and the Environment Applicable to European Union Companies Operating Outside the EU (Edinburgh, 2010) para 12.

  Environmental Rights in EU Bilateral Agreements  433 was not enacted to that end, although, at the multilateral level, the EU presented itself as a global leader on corporate accountability issues.76 The EU thus appears more willing to address these issues externally than internally. Indeed, several EU bilateral agreements include cooperation provisions on ‘strengthening the private sector under conditions ensuring environmental protection’,77 which may provide a basis for addressing the links between corporate environmental degradation and human rights violations.78 This possibility appears to find confirmation in the EU Foreign Affairs Council’s support79 for the UN Framework on Business and Human Rights.80 It also underlies indications by the European Commission of the possibility to report on EU companies’ compliance with initiatives for promoting corporate environmental accountability in the mining, oil and gas sectors and promote the adoption of criteria for EU companies investing in third countries.81 In this light, existing cooperation clauses in EU bilateral agreements could allow for a transparent and participatory process through which the EU, its Member States, the third country and relevant stakeholders agree upon specific procedures to monitor the envir­onmental impacts of European companies operating outside of the EU, in the framework of ongoing political dialogues and the EU’s external funding opportunities.82 76   Gatto A, ‘Corporate Social Responsibility in the External Relations of the EU’ (2005) Yearbook of European Law 423 ff, 436. 77   Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part [2005] OJ L26/3, Article 86(1); Montenegro Stabilization and Association Agreement (2007), Article 94; Serbia Stabilization and Association Agreement (2008), Article 94; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Bosnia and Herzegovina, 16 June 2008, , Article 92; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part [2009] OJ L107/166, Article 92; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/13, Article 85(1); Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the one part, and the Republic of South Africa, of the other part [1999] OJ L311/3, Article 51. 78   See generally, Morgera E (n 72). 79   Council, ‘Conclusions on Human Rights and Democratisation in Third Countries’, 8 December 2009. 80   Ruggie J, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Protect, Respect and Remedy: A Framework for Business and Human Rights’ (2008) UN Doc A/ HRC/8/35. Endorsed by the Human Rights Council, Resolution 8/7, ‘Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’ (2008) UN Doc A/HRC/8/52. 81   Andean SIA Position Paper, November 2010, 7 and 9. See also Augenstein D et al (n 75). 82   Morgera E, ‘Expert Report on CSR to Respect Human Rights in the Environmental Sphere’, for the European Commission-funded project on Study of the Legal Framework on Human Rights and the Environment Applicable to European Union Companies Operating Outside the EU undertaken by the University of Edinburgh (2010).

434  Elisa Morgera D. Deforestation Sustainable forest management has been a long-standing international concern for the EU and as such it has been addressed at a multilateral level, with support for the development of a legally binding agreement on forests83 both at a global84 and regional level.85 Its linkages with human rights are well established in international legal instruments, once again with a particular focus on indigenous peoples.86 Recently the EU has developed a sectoral bilateral approach to forestrelated cooperation, though the conclusion of specialized bilateral agreements called ‘voluntary partnerships agreements’ (VPA) under its Forest Law Enforcement, Governance and Trade (FLEGT) initiative.87 FLEGT already provides opportunities for addressing environmental rights: the relevant Action Plan foresees that the Commission will ‘work to address . . . local and indigenous peoples’ rights to the forests they depend on for a living’.88 The VPA signed with Ghana,89 for instance, includes in the definition of legal harvest, reference to national legal norms with social, cultural and labour dimensions.90 This is then coupled with a commitment from the 83   Reischel G, ‘The EU and the UN Forest Negotiations: A Case of Failed International Environmental Governance?’, paper presented to Marie Curie European Summer School on Earth System Governance, Vrije Universiteit, Amsterdam, 24 May–6 June 2007, at . 84   The EU advocated the development of a global, legally binding instrument on forests at the United Nations Forum on Forests (eg, Baldwin A et al, ‘Summary of the Fifth Session of the United Nations Forum on Forests’ (2005) 13 Earth Negotiations Bulletin 133, 4). 85   During the Forest Europe Ministerial Conference, held in Oslo, Norway, from 14–16 June 2011, ministers of European countries and representatives of the EU adopted a mandate for negotiating a legally binding agreement on forests in Europe by 2013: see ‘Oslo Ministerial Mandate for Negotiating a Legally Binding Agreement on Forests in Europe’, 16 June 2011, at . 86   Eg, Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (Rio Forest Principles), ILM 1992, p 881, para 5(a) which reads: ‘Forest policies should support the identity, culture and rights of indigenous people and forest dwellers. Their knowledge of conservation and sustainable forest use should be respected and used in developing forestry programs. They should be offered forms of economic activity and land tenure that encourage sustainable forest use and provide them with an adequate livelihood and level of wellbeing.’ 87   Council Regulation (EC) No 2173/2005 of 20 December 2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community [2005] OJ L 347/1, 30 December 2005. 88   Commission, Forest Law Enforcement, Governance and Trade (FLEGT): Proposal for an Action Plan, COM (2003) 251 final, 3 (FLEGT Action Plan), p 21. 89   Voluntary Partnership Agreement between the European Community and the Republic of Ghana on Forest Law Enforcement, Governance and Trade in Timber Products into the Community (20 November 2009) accessed 19 April 2010. 90   Ibid, Annex II.

  Environmental Rights in EU Bilateral Agreements  435 third country to review its national legal framework where it does not support sustainable forest management.91 This could be interpreted as including also the interactions between forest protection and human rights, thereby opening the door for a bilateral dialogue on the definition of this concept using the national legislation of the third country as a departure point. This understanding seems to be confirmed by the explicit reference in relevant EU instruments on external thematic funding to the ‘promotion on the ground of community-based forest management and respect for local and indigenous peoples’ rights over forestland’.92 The other human right-related dimension of the FLEGT initiative concerns procedural environmental rights. FLEGT provides systematic support for involvement of third-country stakeholders in the definition of the legality of timber.93 And the participation of various stakeholders, including human rights-holders, in forest-related decision-making is indeed considered an essential element of sustainable forest management.94 An NGO report, however, underscored that EU external assistance programming documents provided insufficient information on the involvement of local communities in the VPA negotiating process or on the impacts of the FLEGT initiatives on legal and institutional coherence in the partner country.95 So while this is probably the only thematic areas of EU bilateral external relations where work is already ongoing on environmental rights, it is still too early to determine whether it can serve as a model for other areas of EU bilateral cooperation. E.  Climate Change Climate change is undoubtedly the environmental issue that has received the highest priority and has been most systematically integrated into EU external relations. This may be explained by the ascent of climate change at the international level from an environmental issue to a development and global security challenge.96 At the EU level, climate change had already been singled out by the European Council as a key challenge in the late 1990s and followed up by various policy proposals.97 Several other   FLEGT Action Plan (n 88), p 5.   ENRTP Thematic Strategy 2007–10, p 18; ENRTP Thematic Strategy 2011–13, p 24. 93   Eg, Ghana VPA, Annex. 94   Rio Forest Principles (n 86) para 2(d). 95   WWF, FERN and Birdlife, ‘Environmental Tools in EC Development Cooperation: An Analysis of Country and Regional Environmental Profiles’ (2009) 19. 96   Sindico F, ‘Climate Change: A Security (Council) Issue?’ (2007) Carbon and Climate Law Review 26 ff; Morgera E, ‘The 2005 UN World Summit and the Environment: The Proverbial Half-Full Glass?’ (2006) Italian Yearbook of International Law 53 ff. 97  Commission, Communication – Climate Change in the Context of Development Cooperation, COM (2003) 85 final and Council, Conclusions on Climate Change in the Context of Development Policy, 24 November 2004 (Annex ‘Action Plan to accompany the EU Strategy on Climate Change in the Context of Development Cooperation’). 91 92

436  Elisa Morgera policy initiatives followed, such as the launch in 2007 of the Global Climate Change Alliance,98 and the issuance in 2009 of a White Paper on Adaptation encouraging the systematic inclusion of climate change adaptation into all EU external policies at the bilateral and multilateral level, particularly in the area of trade, development cooperation and security.99 In parallel, EU legislation on climate change has been increasingly refined, reflecting the evolution of the international climate change regime.100 The treatment of the international climate change regime in the EU external relations has accordingly been characterized by a significant evolution. Initially, the inclusion of climate change in the EU external action tools was very generic101 or specifically geared towards encouraging the ratification and implementation of the Kyoto Protocol, as reflected in certain bilateral agreements.102 This was linked to the EU international efforts to ensure the Kyoto Protocol entry into force notwithstanding the declaration by the United States of their intention not to ratify it.103 More recently, the EU has prioritized climate change through all its external relations tools, focusing in particular on the creation of a global carbon market and carbon finance. This has occurred in tandem with developments in EU environmental legislation, the implementation of which will intertwine with the Union’s external action at all levels.104 Notable linkages between internal and external action include the support for the establishment of carbon trading schemes in other regions with a view to expanding the global carbon market first in countries belonging to the Organization for Economic Cooperation and Development (OECD), and later in emerging economies, including in sub-federal or regional entities,105 a non-binding

  Marín Durán G and Morgera E (n 3) 229.   Commission, White Paper – Adapting to Climate Change: Toward a European Framework for Action, COM (2009) 147 final, 15–16. 100   Oberthür S and Pallemaerts M (eds) (n 5). 101   References to climate change as an area for cooperation can be found, eg, in several Partnership and Cooperation Agreements with Commonwealth of Independent States countries (see Marín Durán G and Morgera E (n 3) 130–132). 102   Eg, Bosnia AA, Article 108; Montenegro AA, Article 111; Serbia AA, Article 111. 103   Kulovesi K, ‘How to Prevent Babies from Being Thrown Away with the Bathwater: Perspectives on the International Climate Regime from Buenos Aires to the Future’ in Morgera E and Francioni F (eds), The Future of Environmental Law: International and European Perspectives, The Working Group on Environmental Law: Collected Reports 2004 – 2005, EUI Working Papers Law, Law No 2006/01, 23 ff. 104  Directive (EC) 2009/29 of the European Parliament and the Council amending Directive (EC) 2003/87 so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community [2009] OJ L140/63 (EU ETS Directive). See generally Kulovesi K, Morgera E and Muñoz M, ‘Environmental Integration and Multi-faceted International Dimensions of EU Law: Unpacking the EU’s 2009 Climate and Energy Package’ (2011) Common Market Law Review 829 ff. 105   EU ETS Directive, Article 25(1)(a): this went beyond an earlier formulation that limited linking the ETS only to industrialized countries having ratified the Kyoto Protocol (Kulovesi K, Morgera E and Muñoz M (n 104) 862). 98 99

  Environmental Rights in EU Bilateral Agreements  437 provision on climate finance for developing countries,106 and the opportun­ ity to establish joint projects between EU Member States and third countries on renewable energy.107 This sophistication in the EU approach to climate change has become increasingly visible in all external relations tools. Notably, post-Global Europe agreements include unprecedented cooperation clauses wholly devoted to climate change or significantly detailed language on cooperation on trade and climate change. Recent agreements therefore contain operative provisions focusing on specific aspects of climate change cooperation, such as: mainstreaming climate change in all policy areas, supporting both mitigation and adaptation, supporting trade measures and/or removing trade obstacles to facilitate the implementation of the international climate change regime, facilitating technology transfer and supporting the international carbon market.108 Climate change has also become the number-one priority for EU external funding,109 including for cooperation with industrialized countries.110 A portion of the Union’s thematic funding for the environment is reserved for specific initiatives related to climate change and renewable energy.111 Overall, climate change certainly represents a frontrunner area for envir­onmental integration in EU external relations. So far, however, it has not included notable human rights dimensions, whereas increasingly questions are been raised internationally as to potential and actual negative impacts on human rights of climate change response measures,112 106   EU ETS Directive (n 104), Article 10(3): see comments by Kulovesi K, Morgera E and Muñoz M (n 104) 856. 107   Ibid, Article 9(1). 108   In particular, Cotonou Agreement (Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the one part and the European Community and its Member States of the other [2000] OJ L317/3) – Second Revision of the Cotonou Partnership Agreement – Agreed Consolidated Text (11 March 2010) at , Articles 1, 8, 11 and 32bis; COPE FTA, Article 275; South Korea FA, Article 24; Agreement establishing an Association between the EU and its Member States, on the one hand, and Central America on the other [2012] OJ L346/3, Article 63. The Agreement provisionally applies to the relations with Honduras, Nicaragua and Panama as of 1 August 2013. 109   Regulation (EC) 1905/2006 of the European Parliament and of the Council establishing the financing instrument for development cooperation [2006] OJ L378/41 (DCI Regulation), Article 2(2). 110   Council Regulation (EC) 1934/2006 establishing a financing instrument for cooperation with industrialised and other high-income countries and territories [2006] OJ L405/41, Article 4. 111   Such as the Global Climate Policy Alliance (ENRTP Thematic Strategy 2007–2010, 3). 112   See, eg, Human Rights Council, Resolution on Human Rights and Climate Change: 7/23 of 2008; 10/4 of 2009; and 18/22 of 2011; Cameron E, ‘Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach’ (2009–10) Georgia Journal of International and Comparative Law 673 ff; and Rajamani L, ‘The Increasing Currency and Relevance of Rightsbased Perspectives in the International Negotiations on Climate Change’ (2010) Journal of Environmental Law 391 ff.

438  Elisa Morgera including from the viewpoint of a coherent interpretation of the international climate change regime and the Convention on Biological Diversity.113 Against this background, the European Parliament commissioned a study exploring opportunities of integrating climate change within EU human rights diplomacy or including human rights concerns in EU external climate change action.114 The study pointed to the possibility of integrating human rights criteria (such as participation, non-discrimination, equality and attention to vulnerable groups) into impact assessments of mitigation policies supported by the EU externally,115 and to include climate change concerns in human rights dialogues.116 Notably, the study stresses the importance of favouring better access to courts.117 It also recommends the creation of a bottom-up accountability and recourse mechan­ism to check that EU external climate change assistance is not used for projects that negatively impact on human rights.118 It remains to be seen whether any of these proposals will be taken up by the EU. IV.  RISKS AND AVENUES

The above-outlined opportunities for using the EU’s bilateral agreements to support environmental rights to a great extent represent a potential that has not yet been realized. On the other hand, as Daniel Augenstein has aptly pointed out, the more the EU engages in environmental protection initiatives beyond its borders, the more it incurs in the risk of violating or contributing to violations of human rights of third-country residents affected by the extraterritorial implications of EU environmental measures.119 Several avenues are arguably available to address missed opportun­ities in relation to the promotion of environmental rights, or at least violations of environmental rights, both within and outside the EU. Within the EU,120 the European Parliament could use (or threaten to use) its veto power on the conclusions of EU bilateral agreements121 to push for explicit consideration of environmental rights implications in the SIAs that are carried out during the negotiations of EU bilateral agree113   Morgera E, ‘No Need to Reinvent the Wheel for a Human Rights-Based Approach to Tackling Climate Change: The Contribution of International Biodiversity Law’ in Hollo E, Kulovesi K and Mehling M (eds), Climate Change and the Law (Dordrecht, 2013) 350 ff. 114   Cournil C et al, ‘Human Rights and Climate Change: EU Policy Options’ (European Parliament, August 2012). 115   Ibid, 26. 116   Ibid, 43. 117   Ibid, 11. 118   Ibid, 59. 119   Augenstein D, ‘The Human Rights Dimension of Environmental Protection in EU External Relations Post-Lisbon’ in Morgera E (ed) (n 5) 263 ff. 120   This paragraph builds on Marín Durán G and Morgera E (n 3) 285–88. 121   Article 218(6)(a) TFEU.

  Environmental Rights in EU Bilateral Agreements  439 ments.122 The European Parliament could also use its budgetary powers to ensure that EIAs or strategic environmental assessments undertaken in the context of the EU’s external assistance planning123 include environmental rights implications. In addition, the European Ombudsman may provide an avenue for individuals and NGOs to raise failures to respect procedural environmental rights in the development and implementation of EU bilateral agreements as instances of maladministration.124 This concept has been interpreted quite extensively, and could include, for instance, departures by the European Commission from its own guidelines on stakeholder consultations. As this avenue is limited to EU citizens and any natural or legal person residing or having its registered office in a Member State,125 one could imagine that EU-based environmental NGOs may take this opportunity with regard to EU external action. Under EU agreements (in particular, the post-Global Europe agreements), another option would be to use the bilateral cooperation bodies that have a clear responsibility for monitoring and following up on certain environmental cooperation clauses. These joint institutions, however, have been developed specifically in connection with new ‘trade and sustainable development chapters’ of the bilateral agreements, so it remains uncertain how they will operate in practice and whether they will at all affect non-­traderelated areas of environmental cooperation.126 Nonetheless, the separate, multi-stakeholder advisory bodies established under these new EU agreements can submit findings and opinions to the Parties on the sustainable development aspects of the bilateral agreement’s implementation.127 In that respect, it cannot be excluded that they could bring to the attention of the Parties to bilateral agreements questions related to environmental rights. Beyond these venues, the EU could arguably find itself brought before the ECtHR for failing to ensure that its external environmental policies do not contribute to human rights violations in third countries, particularly when external action is linked to internal regulation with extraterritorial effects. And, as access to justice at the EU level continues to be very challenging on environmental matters,128 the EU could arguably also be brought before the ECtHR for failing to provide access to just­ice and effective remedies to third-country victims in Union courts.129   Marín Durán G and Morgera E (n 3) ch 6.   Ibid, ch 5. 124   The argument has been put forward (albeit in an internal context) by Alemanno A, ‘The Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the Commission’s Walls or the Way Forward?’ (2009) European Law Journal 381 ff, 388. 125   Article 228 TFEU and Charter, Article 44. 126   Marín Durán G and Morgera E (n 3) 286. 127   EU–Central America AA, Article 294(4)(5) and EU–COPE FTA, Articles 281–82. 128   Aarhus Convention Compliance Committee, Findings and Recommendations on the ClientEarth Case (Part I), UN Doc ECE/ MP.PP/C.1/2011/4/Add.1 (2011), para 92. 129   Augenstein D (n 119). 122 123

440  Elisa Morgera In addition, the institutional structure underpinning the Aarhus Convention could foster increased transparency in the EU external relations, as recently called for by a coalition of environmental NGOs.130 The Aarhus Convention includes an obligation for its Parties to ‘promote the application of the principles of this Convention in international environmental decision-making processes’,131 which could arguably extend to decision-making processes under EU bilateral agreements dealing with environmental matters. The relevant guidelines of the Aarhus Convention on this provision, however, appear limited to ‘multilateral’ processes.132 In all events, this may be quite a theoretical option at this stage: the Convention Compliance Committee has yet to receive its first submission related to Parties’ obligation in international fora. On the other hand, it would not be too far-fetched to imagine that certain cases could be at least brought to the attention of the Meeting of the Parties to the Convention, for naming and shaming purposes, if bringing them before the Compliance Committee is not an option. V.  PRELIMINARY CONCLUSIONS

Environmental rights are a sensitive topic for the EU, as clearly demonstrated by the limited development of the linkage between the environment and human rights in the framework of the EU’s internal legal system. This, however, does not mean that the EU will not take initiatives in this regard externally. In fact, without entering into the merit of whether this could be considered a double standard, the EU should systematically consider how (rather than whether) its bilateral agreements could promote environmental rights in third countries. This is called for both by its constitutional objective of ensuring coherence between human rights and environmental protection in its external relations, and because of its ambition to play a leadership role in environmental affairs. There are indeed several opportunities for the EU to contribute to environmental rights on the basis of bilateral agreement clauses on environmental impact assessment, corporate environmental accountability, traditional knowledge, forest protection and climate change. While seizing existing opportunities for promoting environmental rights through bilateral agreements may depend also on the willingness 130   European ECO Forum stressed the need to ‘apply the Aarhus principles in the context of the EU’s European Neighbourhood Policy, Eastern Partnership and related negotiations of bilateral agreements’: see Summary of the fourth session of the Meeting of the Parties to the Aarhus Convention, 29 June–1 July 2011 in Chisinau, Moldova, . 131   Aarhus Convention, Article 3(7). 132  Almaty Guidelines on promoting the application of the principles of the Aarhus Convention in International Forums (2005) UN Doc ECE/MP.PP/2005/2/Add.5, para 9.

  Environmental Rights in EU Bilateral Agreements  441 of third countries, at the very least the EU should ensure that its bilateral agreements and related external relations tools do not lead to negative impacts on environmental rights beyond its borders. To that end, the present mapping exercise has preliminarily identified a few avenues to hold the EU accountable. There remains, however, much scope for policy and academic debate as to the suitability and accessibility of these and other possible venues to counterbalance the increasing reach of EU external environmental action and the inherent risks of negative impacts on envir­ onmental rights.

International Common Goods: An Epilogue FRANCESCO FRANCIONI

I

HAVE AGREED to write this short epilogue but not without some hesitation. This is for two reasons. First, because this book is the result of a symposium organized by Ana Vrdoljak and Federico Lenzerini as an expression of friendship to mark the end of my tenure at the European University Institute. The purpose of the symposium was to discuss the concept of ‘common goods’ in three specific areas of international law to which I have devoted the past thirty yeas of my writing, teaching and practice: human rights, environment and culture. So, it is an emotional experience for me now to see so many friends, distinguished colleagues and former pupils taking part in the discussion of these three topics under the general umbrella of ‘International Common Goods’. The second reason for my uncertainty is scientific. The title of the book is formulated in a propositive form, ‘International Law for Common Goods’. It does not raise a question but rather sends a message that there are indeed common goods that the international community needs to take into account and to safeguard with appropriate regulation. The question, however, is how can international law help define the concept and scope of these goods in the present context of globalization where the steady decline of the State as provider of public goods is not matched by institutional building at the international level, and where the role of private actors as agents of the public interest is all but clear. In this respect, the concept of common goods remains elusive and still inadequately explored in international law. Economists have come up with their own definitions of ‘public goods’, ie as those goods that, in contrast to private goods, are characterized by non-rivalry, in the sense that anyone can use them without diminishing their use by others, and by non-excludability, in the sense that nobody may be excluded from access to them.1 International relations 1  For an early formulation of this theory, see Samuelson, ‘The Pure Theory of Public Expenditure’ (1954) Review of Economics and Statistics 387 ff.

444  Francesco Francioni theory has also made use of this concept, especially with regard to the role of governments and international institutions, and with a focus on the present deficit of the existing political structures in the production and provision of public goods.2 The reasons for the lack of a comprehensive theory of common or public goods in international law are many and their analysis is beyond the scope of these brief reflections. Suffice it to mention the pluralistic nature of the international legal order and the pre-eminent role of the sovereign State as the arbiter of the public interest in a strictly national horizon. To this, one has to add the intellectual legacy of international law as a system of norms regulating reciprocal relations between sovereign States, which weigh heavily against the conceptualization of general community interests to which the idea of common goods is inevitably related. Having said this, one must recognize that in the field of human rights, culture, and the environment the idea of international common goods emerges, even if indirectly, at least in two distinct ways: first, by logical deduction from general normative developments of the past four decades; second, by way of inductive reasoning on the incremental effect that the practice of States has on the formation of new principles of justice and solidarity which underpin the very concept of common goods. The first case is exemplified by the now unanimously accepted idea that certain international obligations have an erga omnes character, in the sense that they are owed to the international community as a whole and not simply to another State or a group of States. This idea, articulated by the International Court of Justice in the cause celèbre of the 1970 Barcelona Traction case,3 has been constantly reaffirmed in subsequent cases, including East Timor4 and the Advisory Opinion on The Wall5 with regard to selfdetermination, and in Bosnia-Herzegovina v Yugoslavia6 and in Congo v Rwanda7 with regard to genocide. The same idea has influenced the International Law Commission in its codification of the law of State responsibility in so far as its 2001 Articles contemplate the possibility that States other than the ‘injured’ State may activate the international responsibility of another State if ‘. . . [t]he obligation breached is owed to the 2  I Kaul et al, Providing Global Public Goods: Managing Globalisation (New York, UNDP, 2003). 3   ICJ judgment in The Barcelona Traction Light and Power Company, Ltd (Belgium v Spain), 5 February 1970, ICJ Reports 1970, p 3 ff. 4   ICJ Judgment in the Case Concerning East Timor (Portugal v Australia), 30 June 1995, ICJ Reports, 1995, para 29. 5   ICJ Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ Reports, 2004, paras 88, 155, 156. 6   ICJ Judgment of 11 July 1996, ICJ Reports, 1996, para 131, and Judgment of 26 February 2007 on the merits. 7   ICJ order on interim measures, 12 July 2002, ICJ Reports, 2002, and Judgment of 3 February 2006, para 64.



International Common Goods: An Epilogue 445

international community as a whole’.8 It is superfluous to underline that the concept of erga omnes obligations presupposes that the international community as a whole is capable of determining the societal values which are essential to its stability and survival and whose breach is to be considered a concern of all States uti universi. The second case is more directly relevant to the theme of this book and can be exemplified by several developments in international law and practice, which have a cross-cutting influence on human rights, culture and the environment. One such development concerns the emergence of the principles of ‘common heritage of mankind’ and the related concept of ‘common concern of humanity’. These principles are expressions of the different degrees of normative intensity and institutional development which the idea of global common goods may produce in international law. The principle of the common heritage of mankind has received general acceptance with regard to the status of mineral resources located in the sea bed area beyond national jurisdiction and entails a collective system of management and supervision through an ad hoc institution and with specific provisions on the protection of the marine environment. In this case, the idea of common goods takes a patrimonial form and involves a collective title of the international community as a whole over exhaustible resources beyond national jurisdiction, as well as a collective institutional mechanism for their management. The ‘common concern’, on the other hand, has evolved through multilateral environmental agreements which have recognized climate and bio-diversity as global common goods but have not gone as far as to create global institutional mechanisms to ensure their governance at the international level. These two principles entail effects beyond the law of natural resources and the protection of the environment and impact also on the law of human rights and of cultural heritage. They do so, first, by limiting the traditional freedom of access to natural resources and by taking into consideration the right of all peoples to enjoy the benefits of scientific progress and its application, as well as equal opportunities of economic development in order to redress the global asymmetries between rich and poor countries.9 Second, the principle of ‘common concern’ implies as a corollary that it is in the general interest of humanity that facilitated access to biodiversity resources be accompanied by equitable benefit sharing between the investors and countries that use bio-genetic resources and countries and peoples that provide access to them in their territory. Third, the principle of access and benefit sharing in the field of bio-diversity resources – now codified in the 2010 Nagoya Protocol10 – has an important cultural dimension in   Article 48 of the Draft Articles.   See Article 15 of the Covenant on Economic, Social and Cultural Rights. 10   Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation, 26 October 2010, CBD Decision 10/1, 20 January 2011, UN Doc UNEP/CBD/COP/10/27. 8 9

446  Francesco Francioni so far as it recognizes the role of local traditional communities and indigen­ ous peoples in providing the cultural lead to the identification of commercially valuable biological resources and their right to an equitable sharing of the benefits accruing from their utilization.11 Another development that is relevant to the conceptualization of common goods in the present dynamics of international law is the expansion of human rights beyond the traditional conception of individual rights. This expansion has three dimensions: material, temporal and spatial. At the material level we can witness a movement that tends to overcome half a century’s traditional predominance of the idea of human rights as essentially civil and political liberties, and focuses on the importance of economic, social and, cultural rights as the essential elements of an agenda of global justice. This is made evident by the adoption of the Millennium Development Goals, the recent entry into force (2013) of the new Protocol allowing individual and group communications to the Committee on Economic, Social and Cultural Rights, and the increasing importance given by the Human Rights Council to thematic issues such as the right to food and water, the right to health, the right to a decent environment, and the right to take part in cultural life. These are all rights that speak of collective entitlements rather than traditional individual freedoms and convey the idea that the corresponding obligations they entail aim at protecting and promoting the international common good of social just­ ice, never so compelling as today in the present situation of persistent economic crisis and the increasing deterioration of living conditions of millions of people. The temporal dimension of the present expansion of human rights as a component of a larger common good represented by global justice concerns the past and the future. For the past, we witness a shrinking of time in the sense that the memory of past grievances, from mass atrocities, slavery and racial discrimination, to dispossession of indigenous peoples and spoliation of cultural heritage, becomes part of present concerns and justice agenda, with a myriad of claims for reparation, truth commissions, prosecution, restitution and compensation. It is regrettable that the International Court of Justice in the recent case of the Jurisdictional Immunities of the State (Germany v Italy)12 has failed to address this issue from the perspective of the common good of global justice, and has rather preferred to follow the comfortable path of the exclusionary rule of State immunity. But in spite of this precedent, the problem of how to deal with past injustices remains, and victims of gross violations of human rights and of international crimes will continue to invoke international law not 11  See also, in this respect, Article 31 of the 2007 UN Declaration on the Rights of Indigenous Peoples. 12   ICJ Judgment of 3 February 2012, available on the web site of the ICJ at .



International Common Goods: An Epilogue 447

only for the sake of restoration of individual rights, but, more importantly, for the acknowledgment of past wrongs and in the public interest of establishing the truth and doing justice. If we move from the past to the future, we can see how certain dev­ elopments in technology and the increasing gravity of the environmental degradation tend to project into the future the protection of human rights. This is happening in the context of the present debate over the patentability of future life (embryos, stem cells) and more evidently with regard to climate change and to the right of future generations to receive from the present generation an environment that permits their continuing existence on the planet. In this case the impending catastrophe of global warming is not only a threat to the stability of climate as a global environmental good but also a devastating rupture of the social compact which presupposes the State as a legal order that extends its binding force not only to those who are living in the present time, but also to those who will be born tomorrow. Finally, the spatial dimension of the expanding sphere of human rights obligations concerns the current trend toward the extra-territorial application of human rights obligation in situations where the State or the relevant private actors have failed to exercise their jurisdiction or effective control over the agent responsible for the violation. This is an established trend in the jurisprudence of human rights courts in Europe, in Latin America and in UN treaty bodies13 with regard to civil and political rights. But it is also an emerging tendency in the field of economic, social and cultural rights, as it can be witnessed by the Guiding Principles on Business and Human Rights, unanimously approved by the Human Rights Council in 2010, and by the Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights. These Principles do not have a legally binding value but they indicate that, in the contemporary international context, globalization should not be understood only in terms of market efficiency, free trade and free movement of capital, but also in terms of global justice, respect for the general environment and for cultural heritage of importance to humanity. In this sense we can understand the meaning of common goods in international law and promote their realization as part and parcel of the general interest of the international community. But the most important contribution of this book is in its offering a new normative perspective on the concept and role of State sovereignty through the lens of ‘common goods’. The analysis of the interconnected themes of human rights, environmental, and culture, compels a rethinking of sovereignty not only in terms of ultimate locus of authority, but also 13   For a thorough review of this jurisprudence, M Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford, 2011).

448  Francesco Francioni as the indispensable source of power to effectively achieve the goal of respecting and protecting these ‘common goods’ in the general interest of humanity. This result has already been attained with regard to human rights, since it is now universally agreed that even with regard to its own citizens every State is bound to accept limits to its own domestic juris­ diction and to act as a trustee of humanity under international standards. It is time that in this shrinking world of increasing inter-dependence and globalization the same role will be taken by the sovereign State as a trustee of the global common goods of cultural heritage and environmental sustainability.

Index Page references in bold refer to tables. Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998: ECHR and, 353–57, 417, 426–28, 440 Ackerman, B, 126 African Charter on Human and Peoples’ Rights, 19, 21, 22, 41– 42, 59–60, 66 breaches, 167 armed conflict, 77–79 children’s rights, 363 cultural heritage, 170–71 effectiveness, 45 ‘indigenous peoples’ defined, 56 ‘peoples’ defined, 45–46, 51 peoples’ rights, 44–46 provisions relating to permanent sovereignty over natural resources, 44 right of peoples to national and international peace and security, 45 right of peoples to their economic, social and cultural development, 44–45 right to a general satisfactory environment, 45 right to economic, social and cultural development, 44–45 right to self-determination, 44 see also African Commission on Human and Peoples’ Rights (ACHPR) African Charter on the Rights and Welfare of the Child, 363–64 African Commission on Human and Peoples’ Rights (ACHPR), 46, 68 armed conflict, 77–79 case law: Centre for Minority Rights Development v Kenya, 55–58 COHRE v Sudan, 54–55 Katangese Peoples’ Congress v Zaire, 44, 47–48 Kevin Mgwanga Gunme et al v Cameroon, 51–53 Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria, 48–50

cultural rights, 166–67 World Heritage List, 242–43 African Commission on Human and Peoples’ Rights v Great Socialist People’s Libyan Arab Jamahiriya, 58–59 African Court on Human and Peoples’ Rights, 45, 58–59 Ago, R, 393 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), 20–23 Akwé: Kon Guidelines on Impact Assessment, 203–04, 212, 429 Al-Jedda v United Kingdom, 86–87 Al-Saadoon and Mfdhi v the United Kingdom, 81–82 alternative dispute resolution, 250, 259–63 consensus, 263 ICOM, 257–59 negotiation, 260 new rules and procedures, 249–68 protection of global common good, 263–64 benefits of ADR, 264 WIPO Arbitration and Mediation Center, 255–57 see also cultural heritage disputes Altmann case, 261–62 American Convention on Human Rights (ACHR), 69–76, 386 IHL interpretation of, 74–77 American Declaration of the Rights and Duties of Men, 386 Anaya, S J, 181 Antarctic Liability Regime, 406–09 Antarctic Treaty 1959, 296, 309–10 see also Antarctic Liability Regime; Antarctic Treaty Area Antarctic Treaty Area, 310–12, 316 Antarctic Liability Regime, 406–09 governance, 323, 326–28 Antiquities Law 1936 (Iraq), 146 archaeological and historical objects, 163, 216–18 indigenous peoples, 391 salvage law, 219–23 sovereignty, 219

450  Index Arctic area, 312–14 exclusive economic zone (EEZ), 319 governance, 323–26 EU, 326–27 state sovereignty, 324–26 Arctic Human Development Report (AHDR), 313 Arctic Monitoring and Assessment Programme (AMAP), 313 armed conflict: ACHPR, 77–79 collateral damages, 111–12 distinction between civilians and combatants, 76 ECHR, 79–87 Hague Convention II 1899, 63 humanitarian norms, 61 jus in bello / international humanitarian law (IHL), 62 IACtHR, 69–77 international human rights law, 61–88 international humanitarian law, 61–88 jus ad bellum, 62 jus in bello, 62, 103–04 non-international armed conflicts, 68, 71–74, 109–10 laws of war, 103, 105 reparation, 115 regional monitoring bodies, 68–69 ACHPR, 77–87 IACtHR, 69–77 Universal Declaration of Human Rights, 63 ASEAN Declaration on Cultural Heritage, 170–72 Atanasov case, 339–41, 342, 349, 357 Awas Tingni case, 185 Balmer-Schafroth case, 344–50 Bámaca Velásquez case, 70, 72, 76 Banjul Charter, see African Charter on Human and Peoples’ Rights Belgium v Senegal, 15, 24, 29–35, 38 Beyerlin, U, 272 bilateral agreements, 421–22, 423–25, 440–41 environmental rights: European Union, 425–28 European Union, 449–41 climate change, 435–38 corporate environmental accountability, 432–33 deforestation, 434–35 environmental impact assessments, 428–30 traditional knowledge, 430–32 threats to bilateral agreements, 438–40 sustainability impact assessments (SIAs), 424–25

voluntary partnerships agreements, 434–35 Birnie, P, 299, 300, 301 Blake, J, 199 Bodansky, D, 271–74 Bosselmann, K, 275–79, 282 Boyle, A, 299, 300–01 Bretton Woods Agreement, 121–23, 131 Brunnée, J, 294–95 carbon capture and storage (CCS), 286–87 CARIFORUM, 430 Cartagena Protocol on Biosafety, 409 Cassese, A, 12–13 Castro Prison case, 72 Centre for Minority Rights Development (CEMRIDE), 55 Centre for Minority Rights Development v Kenya, 55–58 Centre on Housing Rights and Evictions (COHRE), 54, 55 Charter for African Cultural Renaissance 2006, 170, 171 Charter of the United Nations, 86 peoples’ rights, 42 children’s rights, 362–68 climate change and, 361–62, 379–80 state obligations, 369–72 climate negotiations and, 372–76 reconceptualization, 376–79 see also Convention on Rights of the Child clean development mechanism (CDM), 283–84 climate change: bilateral agreements: European Union, 435–38 children’s rights and, 361–62, 379–80 flexibility mechanisms: CCS, 286–87 CDM, 283–84 emissions trading, 284–86 human rights-based approach, 381–82 intangible cultural heritage, 394 CSICH obligations, 382, 384, 386–89 impact on, 382–84 Inuit petition to IACHR, 384–86 other obligations, 389–92 international environmental law, 283–87 see also intangible cultural heritage; international environmental law; land degradation Cobb, J, 241 COHRE v Sudan, 54–55 Collectif Stop Melox et Mox case, 354–55 colonized territories, 147, 175–76, 251 peoples’ rights, 42–43 right to self-determination, 44

Committee for Economic, Social and Cultural Rights (CESCR), 155–58, 165–67 Committee on the Rights of the Child, 363, 379–80 monitoring implementation of CRC, 371–72 ‘common concern of humanity’, 5, 293–95, 445 common heritage distinguished, 299–300 concept: legal content, 299–300 forests and woodlands, 305–06 freshwaters, 305 land degradation 289–305 multilateral environmental agreements, 295–99 common goods: common concern distinguished, 292–93 common good distinguished, 292 concept, 2, 291–92, 443–48 see also cultural heritage; international environmental law; human rights communities: defined, 203 heritage, 203–13 HRL and, 207–12 individual rights versus, 209–12 self-portrayal, 203–04 spokes-persons and stakeholders, 205–07 tensions, 203, 206–07 actio popularis, 208 doctrinal tensions, 207–08 adjudicatory tensions, 208–09 Congo v Uganda, 19 constitutional justice, 121–22, 126 dispute settlement, 119–21 rules of recognition, 120–21 consumer welfare, 122–23, 129 Convention concerning the Protection of the World Cultural and Natural Heritage 1972, 216, 296 Convention for Safeguarding of the Intangible Cultural Heritage (CSICH), 151–52, 182, 197, 216, 382, 384 climate change, 386–89 UNFCCC and, 386–89 Convention for the Protection and Promotion of the Diversity of Cultural Expressions 2005, 149–50, 182 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 326 Convention for the Regulation of Antarctic Mineral Resource Activities 1988 (CRAMRA), 317–18

Index 451 Convention on Biological Diversity 1992 (CBD), 183, 203, 291, 297, 297, 300, 429 Akwé: Kon Guidelines on Impact Assessment, 203–04, 212, 429, 430–31 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973, 296 Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR), 296, 311, 316 Convention on the Conservation of World Cultural and Natural Heritage 1972, 296 Convention on the Elimination of All Forms of Racial Discrimination, 66 Convention on the Protection of the Underwater Cultural Heritage 2001 (CPUCH), 223, 227–29 consultation, 226 jurisdiction of coastal states, 225 law of salvage, 224–25 multilateral agreements, 226 notification, 225 relationship with UNCLOS, 229–30 urgent measures, 226–27 Convention on the Rights of the Child (CRC), 66, 362–64 Committee on the Rights of the Child: monitoring implementation, 371–72 guiding principles, 364–65 monitoring, 371–72 participation rights, 369 protection rights, 367–68 state obligations, 370–71 survival and development rights: right to an adequate standards of living, 366 right to education, 367 right to health sustaining conditions, 366 right to health, 365–66 right to indigenous culture and language, 367 right to life, 365 Convention on Wetlands of International Importance 1971, 296 Convention to Combat Desertification (CCD), 291, 297, 306 ‘cosmopolitan constitutionalism’, 126, 129, 130–32, 135 Council of Europe Basle Convention 1972, 106 Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993, 403

452  Index Council of Europe Framework Convention on the Value of Cultural Heritage for Society 2005 (Faro Convention), 170, 171 cultural diversity, 139, 164, 166–68, 180 common good, as a, 168–72 promotion of cultural heritage, 150, 154, 157, 234 cultural heritage, 3–5 communities: role of, 194–96 culture defined, 157–59 foreign direct investment and, 231, 243–47 global public good, as a, 236–43 human rights and, 139–41, 172–73 origins, 140 indigenous peoples, 175–76 claims, 177–80 communal rights to land, 179–80, 185 prohibition against forced assimilation, 164–65 protection of cultural rights, 163, 180–89 protection, 163, 180–92 right to belong to an indigenous community, 165 individuals: role of, 194, 196 individuals and communities, 193–96 intangible heritage: climate change, impact of, 382–84 international protection, 141–43 international investment law and, 231–34 international legal regimes: state-centred, 196–98 international protection, 141–43 cultural objects, 145–48 intangible heritage, 148–52 language, 148–52 monuments and sites, 143–45 right to participate in cultural life and national cultural policy, 152–53 treaties, 142 international regulation, 232 ownership of archaeological finds, 145–46 private markets and, 231–32 protection of minority rights, 154 right to participate in cultural life, 152–53 redefining, 154–59 salvage law, 219–23 underwater cultural heritage, 215–30 see also cultural heritage disputes; intangible cultural heritage; underwater cultural heritage cultural heritage disputes, 249–50 ADR, 260–63

consensus, 263 negotiation, 260 ICOM: Code of Ethics for Museums, 257 Mediation Rules, 258–59 new rules and procedures, 250–51, 266–68 appraisal, 259–63 ICOM, 257–59, 263, 265–66 ICPRCP, 251–55, 263, 265–66 restitution procedures, 251–55 state-centric mediation and conciliation procedures, 254–55 UNESCO Convention 1970, 251–55, 265–66 WIPO Arbitration and Mediation Center, 255–57, 263, 265–66 Daes, Erica-Irene, 186 Daly, H, 241 Danube Dam case, 295 Declaration of International Law Principles on Reparation for Victims of Armed Conflict, 105 Deloria, V, 178 desertification, 289–91, 300, 366, 383 common concern of humanity, 300–04 see also land degradation development projects: Akwé: Kon Guidelines on Impact Assessment, 203–04, 212 Di Sarno case, 341–42, 343 Distomo case, 25, 104, 106–07 Dworkin, R, 126 ecological sustainability: definition and concept, 275–76 international environmental law, 275–82 revision, 281–82 sustainable development and, 276–78 revision of concept, 278–80 economic law, see ecological sustainability; international economic law emissions trading, 284–86 environment, see international environmental law; international law of environmental liability; environmental rights environmental law, see international environmental law; international law of environmental liability environmental rights, 425–28, 440–41 see also European Union; international environmental law; international law of environmental liability L’Erabière case, 353 erga omnes, see obligations erga omnes

EU Charter of Fundamental Rights, 120 environmental rights, 425–26 EU Directive on CCS, 286 EU Emissions Trading Scheme, 285 Euro, 133–35 European Convention of Human Rights (ECHR), 77 Aarhus Convention and, 353–57 armed conflict, 79–87 tort exception, 107 children’s rights, 363 environmental violations, 336 nullum crimen, null poena sine lege principle, 84 prohibition of actio popularis, 336 European Court of Human Rights (ECtHR), 68 Al-Jedda v United Kingdom, 86–87 Al-Saadoon and Mfdhi v the United Kingdom, 81–82 Chechen civil war, 82–83 civil rights recognized by domestic law: environmental complaints, 344–46 environmental human rights complaints: applicability test (right to a private life), 337–39 rejection of complaints, 334–37 right to a fair trial, 344–50 right to a healthy environment, 346–50 right to a private life, 337–44 international humanitarian law, 84–86 Isayeva v Russia, 81 Isayeva, Yusupova and Bazayeva v Russia, 79–81 jus in bello, 84 Khatsiyeva and Others v Russia, 81 Kovonov v Latvia, 83–86 Mezhidov v Russia, 81 public interest environmental litigation, 331–34, 358 applicability test, 334 rejection of complaints, 334–37 restricted locus standi of NGOs, 351–53 questions préjudicielles, 85–87 right to a fair trial: environmental case law, 344–50 right to a private life: environmental case law, 337–44 European Court of Justice (ECJ): environmental rights, 427–28 European Monetary Union (EMU), 132–35 European Union: Arctic governance and, 326–27 bilateral agreements, 423–25 climate change, 435–38 corporate environmental accountability, 432–33 deforestation, 434–35

Index 453 environmental impact assessments, 428–30 traditional knowledge, 430–32 threats to bilateral agreements, 438–40 environmental rights, 425–28, 440–41 external environmental action, 422–25 multi-level democratic governance: constitutional limits, 132–35 protecting environmental rights: bilateral agreements, 421–22 integration in EU policies and activities, 423 sustainability impact assessments (SIAs), 424–25 Ferrini case, 25, 107 foreign direct investment: cultural heritage and, 231–34, 243–47 investment treaty arbitration, 243 global public good, as a, 234–36 investment treaty arbitration: case law, 245–47 consideration of public goods in arbitral processes, 244 Framework Convention on Climate Change 1992, 297, 327 France: protection of linguistic diversity, 148–50 Francioni, F, 193–94, 271–72 Gabcikovo-Nagymaros case, 276 General Agreement on Tariffs and Trade (GATT), 120, 121–23, 131–32, 327 Geneva Conventions, 34, 69–71, 82, 87, 103–05 collateral damages, 111 non-international armed conflicts, 109 Genocide Convention 1948, 13, 18 Georgia v Russia, 23–25, 66 Germany v Italy: state immunity, 16, 25–29, 34–35, 39 108–09, 111 Giacomelli case, 343–44 Glamis Gold case, 245 global public goods: cultural heritage, 236–43, 242–43, 247–48 features, 238–39 features, 238–39 foreign direct investment, 234–36, 247–48 management of shared resources, 241–42 provision, 239–40 see also common goods globalization, 130–32, 443, 447–48 community democracy and, 128–30 cultural diversity, 150–51, 153 Gorraiz Lizarraga case, 346, 352–53 Guerra case, 356

454  Index Guidelines for the Determination of Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area, see Mediterranean Sea Liability Guidelines Gut Dam case, 398 Habermas, J, 127–28 Hague Convention II 1899, 63 Hague Convention IV 1907: cultural heritage, 144, 145 environment, 297 human rights, 84, 103–04 Martens Clause, 297 Hague Convention 1954: cultural heritage, 144, 169–70, 196 human rights, 140 Hardin, G, 240 Hewitt, A, 242 human dignity, 39, 63–64, 67, 170, 176 human rights, 2–3 cultural heritage, 139–41, 172–73 indigenous peoples, 175–92 erga omnes, 91–92 breach of erga omnes obligations, 95–96 principle of solidarity, 95–96 ICJ, 12–39 impact on norms of international law, 100 impact on secondary norms of international law, 100 impact on sources of international law, 100 impact on state responsibility: aggravated state responsibility, 94–95 breach of erga omnes obligations, 95–96 generally, 93 reparations, 96–98 impact on traditional structure of international law: application of international law, 90 function of international law, 90 generally, 89 nature of international law, 90–91 - 93 scope of international law, 90 international criminal law, 99 international humanitarian law, 99 ‘international personality’, 92–93 jus cogens, 92 modernization of international law, 89 state responsibility, 38 CRC and, 370–71 monitoring bodies, 369–70 treaties: extra-territorial application, 110–11 violations: remedies, 110–11

see also African Charter on Human and Peoples’ Rights; American Convention on Human Rights; European Convention of Human Rights; Inter-American Court of Human Rights Hunter, D, 298 ICOM, 257–59, 263, 265–66 immunity: absolute v relative, 106 removal of sovereign immunity, 106 jus cogens, 107–08 tort exception, 106–07 indigenous peoples: children’s rights, 367 communal rights to land, 179–80, 185 cultural heritage, 175–76 claims, 177–80 protection, 163, 180–89 right to belong to an indigenous community, 165 defined, 56–58 prohibition against forced assimilation, 164–65 protection of cultural rights, 163, 189 history, 180–88 right to belong to an indigenous community, 165 right to education, 188, 367 rights of nature, 191 self-defined dignity, 191 self-determination, 177–80, 185–86 threats, 176–77, 191 intangible cultural heritage: CSICH, 151–52, 182, 197, 216, 382, 384 UNFCCC and, 386–89 climate change: CSICH obligations, 382, 384, 386–89 impact of, 382–84 Inuit petition to IACHR, 384–86 measures of adaptation, 392 mitigation measures, 392 other obligations, 389–92 environmental protection: environmental treaties, 390–91 international human rights instruments, 389–90 indigenous peoples, 391–92 international protection, 141–52 Inuit petition, 386 international cultural heritage law, 198–201 Inter-American Court of Human Rights (IACtHR), 68 armed conflict, 69–77 Bámaca Velásquez case, 70, 72 Castro Prison case, 72

competency, 69–70, 75–76 cultural heritage, 185 Ituango Massacre case, 74–77 Las Palmeras case, 69–70 Mapiripán Massacre case, 73–77 reparations, 208 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP), 251–55, 263, 265–66 International Convention for the Regulation of Whaling 1946, 295 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 23–24 International Council on Monuments and Sites (ICOMOS), 197 International Court of Justice (ICJ): Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), 20–23 application of CAT provisions, 29–30, 31–34 Belgium v Senegal, 29–35 Congo v Uganda, 19 consent of parties, 13, 15–16 doctrine of positive obligations, 37 enforcement of human rights, 13–14 environmental damage, 405 features, 12–13 Georgia v Russia, 23–25 Germany v Italy, 25–29, 34, 39, 111 history, 17–19 recent case law, 20–35 human rights law barriers, 13–16 jus cogens, 34–35 jus in bello: reparations, 104 Legality of the Threat or Use of Nuclear Weapons, 18, 64–65 mainstreaming of human rights: clarifying treaty obligations, 37 generally, 36–37 reservations to human rights treaties, 37 setting norms and obligations, 38 obligations erga omnes, 39 reconstruction of international law, 11–12 role, 14, 16 cautionary note, 35–36 consent of parties, 13, 15–16 mainstreaming human rights, 36–39 state immunity, 108–09 state responsibility, 38 Wall opinion, 19, 39

Index 455 International Covenant on Civil and Political Rights (ICCPR): children’s rights, 363, 370 cultural diversity, 168 cultural heritage, 148–49, 154, 159–63, indigenous peoples, 184 justiciability of group rights’ claims, 208 minority rights, 159–64 right to self-determination, 208 intangible cultural heritage, 148–49 Inuit petition, 386 international human rights adjudication, 208–09 protection of common goods: cultural heritage, 148–49 human rights, 18, 19, 21, 22, 30, 64–66 International Covenant on Economic, Social and Cultural Rights (ICESCR), 152–55, 159, 382 children’s rights, 363, 370 cultural diversity, 168 intangible cultural heritage, 382 climate change obligations, 389, 392 Inuit petition, 386 interpretation of cultural rights, 168 justiciability of group rights’ claims: right to self-determination, 208 minority rights, 159, 166–68 right to participate in cultural life and national cultural policy, 152–54, 155 International Criminal Court: law of war: reparations, 114–15 International Criminal Tribunal for the Former Yugoslavia (ICTY), 19, 34 cultural heritage, 169 international cultural heritage law: community participation, 198–202 intangible cultural heritage, 198–201 nomination process, 201–02 state-centred legal regimes, 196–98 international economic law (IEL), 117–18 economic efficiency: justice and 122–23 HRL and, 118, 125–28 justice and, 118 community democracy v global economy, 128–30 dispute settlement, 119–21 economic efficiency, 122–23 libertarianism, 123–24 self-ownership, 123–24, 129 multi-level democratic governance: constitutional limits, 132–35 international environmental law: climate change, 283–87 ecological sustainability, 275–82

456  Index international environmental law: cont. effectiveness, 271–75, 281–82 behavioural effectiveness, 273, 274 legal effectiveness, 273–74 problem-solving effectiveness, 273, 274–75 lack of appropriate institutions, 272 land degradation, 289–307 legal regime, 272 non-compliance regimes, 273 procedural environmental rights, 353 revision: climate change, 283–87 treaty congestion, 272 see also climate change; ecological sustainability international human rights law (HRL): ACHPR, 77–79 armed conflict, 61–88 international humanitarian law and, 61–88 international humanitarian law distinguished, 38, 62, 65–66 international humanitarian law (IHL): armed conflict, 61–88 Hague Convention II 1899, 63 IACtHR, 69–77 ICJ, 64–66 international human rights law and, 61–88 international human rights law (HRL) distinguished, 38, 62, 65–66 interpretation of ACHR, 74–77 lex specialis, 64, 65, 67 relationship with HRL: principle of complementarity, 67 Universal Declaration of Human Rights, 63 international investment law: cultural heritage and, 231–36 see also foreign direct investment International Law Association: Declaration of International Law Principles on Reparation for Victims of Armed Conflict, 105 rights of indigenous peoples, 181–82 International Law Commission, 23, 393, 415, 444 Articles on State Responsibility 2001, 30, 97, 109 international wrongful acts, 114 Project of Draft Articles: aggravated state responsibility, 94–95 international law of environmental liability, 395 compensatory function, 400 concept of environmental damage, 400

liability regimes: Antarctic Liability Regime, 406–09 Nagoya-Kuala Lumpur Supplementary Protocol, 409–10 liability rules: environmental protection strategies and, 400–06 multilateral treaties, 404 limits, 416–17, 418 Mediterranean Sea Liability Guidelines, 411–14 multilateral treaties, 398–99, 404 private law, 396–97 prospective developments, 417–19 public international law, 397–98 state responsibility, 399 emerging trends, 414–16 International Oil Pollution Compensation Fund (IOPC), 402 Iran-United States Claims Tribunal, 28 Isayeva v Russia, 81 Isayeva, Yusupova and Bazayeva v Russia, 79–81 Ituango Massacre case, 74–75 IUCN Draft Covenant on Environment and Development, 298 Jokić case, 169–70 jus ad bellum, 62, 103, 115 violations: reparations, 112–14 jus cogens, 27, 92, 111, 294 aggravated state responsibility, 94–95 erga omnes and, 38 ICJ, 34–35 jus cogens exception, 107–08, 111 removal of sovereign immunity, 106–08 jus in bello, 62, 84, 103, 113–14 reparations: individual claims, 105–08 violations, 103–04 justice: access to, 121 consumer welfare, 122 IEL and, 118, 122–24 community democracy v global economy, 128–30 dispute settlement, 119–21 economic efficiency, 122–23 libertarianism, 123–24 priority of human and constitutional rights, 125–28 self-ownership, 123–24 protection of rights, 121–22 see also constitutional justice Kant, I, 14, 126–28, 130–31 Katangese Peoples’ Congress v Zaire, 44, 47–48

Kevin Mgwanga Gunme et al v Cameroon, 51–53 ‘peoples’ defined, 51 Khatsiyeva and Others v Russia, 81 Kiss, A, 293–94, 303 Kononov v Latvia, 83–86 Kyoto Protocol on Climate Change, 273–74, 283–84, 286, 536 intangible cultural heritage: Inuit petition, 386–87 Kyrtatos case, 337–39, 341 Lac Lanoux case, 398 Lalive, P, 262 land degradation, 300 climate change: effects of, 304 common concern of humanity, 300–04 environmental refugees: forced migration, 304–05 land degradation neutrality, 302 zero net land degradation, 302 see also desertification Las Palmeras case, 69–70, 71, 75 law of war, 105, 115 aggressive war v violation of rule prohibiting use of force, 113 breaches, 103 remedies, 110–11 collateral damages, 111–12 Germany v Italy, 108–09 International Criminal Court, 114–15 non-international armed conflicts, 109 reparation for damages, 103 International Criminal Court, 114–15 jus ad bellum, 112–14 jus ad bellum, 112–14 jus in bello, 103–04 individual claims, 105–08 remedies for violation of human rights law, 110–11 violation of rule prohibiting use of force, 113 Leopold, A, 277–78 lethal force: IHR and HRL, 68 Locke, J, 126 Lovelace v Canada, 165–66 Lubanga case, 114 McCaffrey, S, 305 McElhinney v Ireland, 106 Madrid Protocol on Environmental Protection to the Antarctic Treaty 1991, 296, 310–11, 316, 408 Mapiripán Massacre case, 73–77 Marahun, T, 272 Martinez Luna, J, 178

Index 457 Mediterranean Sea Liability Guidelines, 411–14, 418 Mezhidov v Russia, 81 Minority Rights Group International (MRG), 55 Mixed Claims Commissions, 28 Nagoya-Kuala Lumpur Supplementary Protocol, 409–10 Nagoya Protocol on Access and BenefitSharing (ABS), 183 431–32, 445 Native American Graves Protection and Repatriation Act (NAGPRA) (US), 183 natural resources, 395, 398–400, 404–06, 445 African Charter, 44 multilateral agreements, 295, 297–99 polar regions, 314 Antarctic resources, 315–18 Arctic resources, 318–19 pollution damage, 412–13, 416 right of peoples to freely dispose of wealth and natural resources, 49–50 right to collective property over, 185 sovereignty over, 44 sustainable development, 240, 272, 274, 280, 282 underwater cultural heritage, 221, 229 see also land degradation non-discrimination: access to culture, 155–57 CRC, 364 cultural rights, 154–59 protection of minorities, 152, 154 obligations erga omnes, 30, 38, 91–92, 215, 333, 389, 444–45 aggravated state responsibility, 94–95 Belgium v Senegal, 32–33 International Court of Justice, 39 scope, 298 Okyay case, 347–48, 350 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 66 Ostrom, Elinor, 241 Parkerings v Lithuania, 245–46 peoples’ rights: African Charter: provisions relating to permanent sovereignty over natural resources, 44 right to a general satisfactory environment, 45

458  Index peoples’ rights: cont. right to economic, social and cultural development, 44–45 right to national and international peace and security, 45 right to self-determination, 44 right to economic, social and cultural development, 44–45 Centre for Minority Rights Development v Kenya, 55–58 Charter of the United Nations, 42 COHRE v Sudan, 54–55 concept, 45–46 ICJ, 43 indigenous peoples, 55–8 Katangese Peoples’ Congress v Zaire, 47–48 Kevin Mgwanga Gunme et al v Cameroon, 51–53 origins, 42 right to self-determination, 43–44 Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria, 48–50 polar regions, 309–10, 328–33 climate change and, 322–23 exploitation of natural resources: Antarctic resources, 315–18 Arctic resources, 318–19 governance: Antarctica, 323, 326–28 Arctic, 323–26 international maritime organisation, 328–30 legal boundaries, 310–14 mining, 317–18 threats, 314–23 tourist activities, 320–22 Protocol I Hague Convention (1954): cultural heritage, 144 human rights, 103–04 Protocol II Hague Convention (1999): human rights, 104, 109, 114 Protocol on Liability and Compensation to the Basel Convention on Transboundary Movement of Hazardous Wastes 1999, 409 Protocol to the 1969 Civil Liability Convention on Civil Liability for Oil Pollution Damage 1992, 401–03 Pyramids case, 246 questions préjudicielles: ECtHR, 85–87 Rawls, J, 119, 126–28, 131, 291–92 Redgwell, C, 299, 300, 301 Reisman, M, 177 reparations, 103, 115

IACtHR, 208 ICC, 114–15 state responsibility and, 96–98 violations of jus ad bellum, 112–14 violations of jus in bello, 103–04 individual claims, 105–08 right of peoples to national and international peace and security, 45 right of peoples to their economic, social and cultural development, 44–45 right of self-determination, 43–44 African Charter, 44 Katangese Peoples’ Congress v Zaire, 47–48 right to a fair trial: environmental violations: case law, 344–50 right to a general satisfactory environment, 45, 48–50 right to a private life: environmental violations: case law, 337–44 right to participate in cultural life and national cultural policy, 152–53 redefining, 154–59 rights of nature: indigenous peoples, 191 Rio+20 Summit on Sustainable Development, 289–91 land and soil, 306 outcome declaration, 279–80 Rio Declaration, 279–80 Salzman, J, 298 Sartori, G, 134–35 Sdruženi Jihočeské Matky case, 348–49, 355–56 Shelton, D, 294, 298, 299, 301 common heritage and common concern distinguished, 299–300 Smith, A, 135 Smith, L, 199 Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria, 48–50 sovereign immunity, see immunity state responsibility: categories of state obligations, 98–99 children’s rights: climate change, link to, 369–72 international law of environmental liability: emerging trends, 414–16 reparations and, 96–98 state sovereignty and, 299 state sovereignty: state responsibility and, 299 Arctic, 324–26 Status of Force Agreement (SOFA), 110 Stephens, T, 305

Sudan Human Rights Organization, 54 sustainability impact assessments (SIAs): EU environmental protection, 424–25 negotiation of bilateral agreements, 424–25 Taşkin case, 342, 346–47, 350 Tătar case, 343 territorial boundaries: cultural heritage, 153–54 territorial waters: sovereignty of archaeological and historical objects, 219–23 Tomuschat, C, 65 tort exception, 108 removal of sovereign immunity, 106–07 Trail Smelter arbitration, 397–98, 415 Treaty of Lisbon, 132, 134, 422–23, 427 Treaty on the Functioning of the European Union (TFEU), 133–34 trust territories: peoples’ rights, 42, 51 see also colonized territories underwater cultural heritage: archaeological and historical objects, 217 sovereignty, 219–23 ‘benefit of mankind as a whole’, 216–17 archaeological and historical objects, 217 human remains, 218 preferential rights, 217 undertaking exploration activities, 218 CPUCH, 223–29 obligations erga omnes, 215 obligation of notification, 217 protection: public international interest, 216 rule of admiralty, 219–23 salvage law: priority, 219–23 territorial waters: sovereignty of archaeological and historical objects, 219–23 UN Charter, 42–44, 94–95, 118, 179, 293 UN Compensation Commission (UNCC), 28, 416 UN Convention against Torture 1984 (CAT), 29–30, 31–34 UN Convention on the Jurisdictional Immunities of States and Their Property 2004, 106 UN Convention on the Law of the Sea 1982 (UNCLOS), 216–30 Arctic area, 319, 327 relationship with CPUCH, 229–30 rules of admiralty, 219–23 salvage law, 219–23

Index 459 UN Declaration on the Rights of Indigenous Peoples 2007, (UNDRIP), 160, 163, 165–66, 179, 186–88 intangible cultural heritage, 391–92 protection of cultural diversity, 189 self-determination of indigenous peoples, 179 UN Declaration on the Rights of Persons Belong to National or Ethnic, Religious and Linguistic Minorities 1992 (UN Minorities Declaration), 160, 164 UN Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People, 183–84 UN Educational, Scientific and Cultural Organization (UNESCO), 145, 147 cultural heritage, 152–53 indigenous peoples, 182 Declaration of Principles of International Cooperation 1966, 168 Universal Declaration on Cultural Diversity, 168 UN Environmental Programme (UNEP), 271 UN Framework Convention on Climate Change (UNFCCC), 291, 297, 300–02, 384 climate negotiations framework, 372–73, 374 CSICH and, 386–89 intangible cultural heritage: Inuit petition, 386 UN International Law Commission, 23 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995, 147–48, 183 Universal Declaration of Human Rights: cultural heritage, 152, 382 environment, 293, 382 human rights, 63, 115, 140, 147 Universal Declaration on Cultural Diversity, 168 Vienna Convention on the Law of Treaties, 67, 91, 118, 388 Weber, M, 191–92 Weeramantry, C G, 276, 295 Westerlund, S, 280, 282 World Heritage Convention 1972, 144–45, 182, 196, 242 World Heritage List, 182, 190, 241–42, 246 World Intellectual Property Organization (WIPO), 183, 265–66 WIPO Arbitration and Mediation Center, 255–57, 263

460  Index World Trade Organization (WTO), 122–23 Dispute Settlement Body (DSB), 327 World War II: breaches of international humanitarian law, 25–29

Young, O R, 272–73 Zaelke, D, 298