German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 54 (2011) [1 ed.] 9783428538867, 9783428138869

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VOLUME 54 · 2011

D U N C K E R & H U M B L O T · B E R L I N

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 54 · 2011

PEER REVIEW BOARD KAI AMBOS • University of Göttingen RICHARD BARNES • University of Hull EYAL BENVENISTI • Tel-Aviv University LAURENCE BOISSON DE CHAZOURNES • University of Geneva ALAN BOYLE • University of Edinburgh MARTEN BREUER • University of Hamburg JUTTA BRUNNÉE • University of Toronto CHRISTINE CHINKIN • London School of Economics CLAUS DIETER CLASSEN • University of Greifswald THOMAS COTTIER • University of Bern JAMES CRAWFORD • University of Cambridge ASTRID EPINEY • Swiss Science and Technology Council BARDO FASSBENDER • University of the Bundeswehr Munich ANDREA GATTINI • University of Padua DOUGLAS GUILFOYLE • University College London MATTHIAS HARTWIG • Max Planck Institute for Comparative Public Law and International Law Heidelberg WOLFF HEINTSCHEL VON HEINEGG • European University Viadrina Frankfurt (Oder) ELLEN HEY • University of Rotterdam CHRISTOPH HERRMANN • University of Passau PETER HILPOLD • University of Innsbruck STEPHAN HOBE • University of Cologne RAINER HOFMANN • University of Frankfurt UWE JENISCH • University of Kiel BING BING JIA • Tsinghua University STEFAN KADELBACH • University of Frankfurt JÖRG AXEL KÄMMERER • Bucerius Law School Hamburg HELEN KELLER • European Court of Human Rights Strasbourg ECKART KLEIN • University of Potsdam MARKUS KOTZUR • University of Hamburg MARKUS KRAJEWSKI • University of Erlangen-Nürnberg CLAUS KRESS • University of Cologne CHRISTINE LANGENFELD • University of Göttingen

JANE MCADAM • University of New South Wales FRANZ MERLI • University of Graz FRED L. MORRISON • University of Minnesota GEORG NOLTE • Humboldt University Berlin ANGELIKA NUSSBERGER • University of Cologne KARIN OELLERS-FRAHM • Max Planck Institute for Comparative Public Law and International Law Heidelberg ROGER O’KEEFE • University of Cambridge ANNE PETERS • University of Basel ALEXANDER PROELSS • University of Trier ANDREAS RAHMATIAN • University of Glasgow ROSEMARY RAYFUSE • University of New South Wales AUGUST REINISCH • University of Vienna EIBE RIEDEL • University of Mannheim MATTHIAS RUFFERT • University of Jena STEFANIE SCHMAHL • University of Würzburg KIRSTEN SCHMALENBACH • University of Salzburg ANDREW SERDY • University of Southampton BRUNO SIMMA • University of Michigan ACHILLES SKORDAS • University of Bristol PETER-TOBIAS STOLL • University of Göttingen STEFAN TALMON • University of Bonn CHRISTIAN TAMS • University of Glasgow DANIEL THYM • University of Konstanz CHRISTIAN TIETJE • University of Halle CHRISTIAN TOMUSCHAT • Humboldt University Berlin ANTONIOS TZANAKOPOULOS • University College London ROBERT UERPMANN-WITTZACK • University of Regensburg ERICH VRANES • University of Vienna CHRISTIAN WALTER • University of Munich THOMAS WEIGEND • University of Cologne NORMAN WEISS • University of Potsdam RÜDIGER WOLFRUM • Max Planck Institute for Comparative Public Law and International Law Heidelberg

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 54 · 2011

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: THOMAS GIEGERICH / KERSTIN ODENDAHL / NELE MATZ-LÜCK Honorary Editor: JOST DELBRÜCK Assistant Editors: NICHOLAS ENGLISH / SYLVIA NWAMARAIHE Editorial Assistants: CHRISTOPH SEIDLER / JULE SIEGFRIED / WIEBKE STAFF Layout and Production: MIRIAM DÖRING / ANDREA NEISIUS

ADVISORY BOARD OF THE WALTHER SCHÜCKING INSTITUTE CHRISTINE CHINKIN London School of Economics JAMES CRAWFORD University of Cambridge LORI F. DAMROSCH Columbia University VERA GOWLLAND-DEBAS University of Geneva RAINER HOFMANN University of Frankfurt FRED L. MORRISON University of Minnesota

EIBE H. RIEDEL University of Mannheim ALLAN ROSAS Court of Justice of the European Union, Luxemburg BRUNO SIMMA University of Michigan DANIEL THÜRER University of Florence CHRISTIAN TOMUSCHAT Humboldt University Berlin RÜDIGER WOLFRUM Max Planck Institute for International and Comparative Law Heidelberg

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

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2012 Duncker & Humblot GmbH, Berlin Printed by AZ Druck und Datentechnik, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-13886-9 (Print) ISBN 978-3-428-53886-7 (E-Book) ISBN 978-3-428-83886-8 (Print & E-Book)

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Printed on no aging resistant (non-acid) paper according to ISO 9706 ∞ Internet: http://www.duncker-humblot.de

TABLE OF CONTENTS FORUM THE GLOBAL FINANCIAL CRISIS CHRISTIAN TIETJE: The International Financial Architecture as a Legal Order . . . . . .

11

CHRISTOPH OHLER: The European Stability Mechanism: The Long Road to Financial Stability in the Euro Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47

FOCUS THE ARCTIC CHALLENGE KRISTIN BARTENSTEIN: Navigating the Arctic: The Canadian NORDREG, the International Polar Code and Regional Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . .

77

JONAS ATTENHOFER: Navigating Along Precedence: How Arctic Sovereignty Melts with the Ice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 NELE MATZ-LÜCK: Continental Shelf Delimitation and Delineation in the Arctic: Current Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 RICHARD BARNES: International Regulation of Fisheries Management in Arctic Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 NIGEL BANKES: Indigenous Land and Resource Rights in the Jurisprudence of the Inter-American Court of Human Rights: Comparisons with the Draft Nordic Saami Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 DAVID L. VANDERZWAAG: The Arctic Council at 15 Years: Edging Forward in a Sea of Governance Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 TIM STEPHENS: The Arctic and Antarctic Regimes and the Limits of Polar Comparativism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

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TABLE OF CONTENTS

AÐALHEIÐUR JÓHANNSDÓTTIR: The European Union and the Arctic: Could Iceland’s Accession to the EU Change the EU’s Influence in the Arctic? . . . . . . . . . . . . 351

GENERAL ARTICLES

EMMANUEL VOYIAKIS: International Law, Interpretative Fidelity and the Hermeneutics of Hans-Georg Gadamer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 BJØRN KUNOY: Conservation and Management of Shared Fish Stocks and the Applicable International Trade Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 ROSEMARY RAYFUSE: Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area . . . . . . . . . . . . 459 RALF MÜLLER-TERPITZ: Genetic Testing of Embryos in vitro – Legal Considerations with Regard to the Status of Early Human Embryos in European Law . . . . . . . . . . . . 489 KASEY L. MCCALL-SMITH: Reservations and the Determinative Function of the Human Rights Treaty Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521 CHRISTOPH J. SCHEWE AND AZAR ALIYEV: The Customs Union and the Common Economic Space of the Eurasian Economic Community: Eurasian Counterpart to the EU or Russian Domination? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565

GERMAN PRACTICE

SUSANNE WASUM-RAINER AND CHRISTOPHE EICK: The UN Security Council and International Law in 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 PETER WITTIG: Climate Change and International Peace and Security: The Open Debate in the United Nations Security Council on 20 July 2011 . . . . . . . . . . . . . . . . 627 THOMAS GIEGERICH: The Federal Constitutional Court’s Deference to and Boost for Parliament in Euro Crisis Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 JAN OLIVA: Legal Persons from EU Member States and their Entitlement to Fundamental Rights under the German Basic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659

TABLE OF CONTENTS

7

BJÖRN ELBERLING: German Practice Regarding Enforcement of Sentences Passed by International Criminal Courts and Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665 PATRICK KROKER: Universal Jurisdiction in Germany: The Trial of Onesphore R. Before the Higher Regional Court of Frankfurt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671 TOBIAS THIENEL: Torture Abroad, Consular Assistance and the Admissibility of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 OLIVER DAUM: Juridicial Virgin Soil and the Well-fortified Democracy – The Annual Report on the Protection of the Constitution under International Legal Scrutiny 697 FELIX MACHTS: Legal Protection of Biotechnological Inventions – Patentability of Extraction of Precursor Cells from Human Embryonic Stem Cells (ECJ) . . . . . . . . 713 PATRICK BRAASCH: The European Convention on Human Rights’ Limitations in the Dismissal of Non-clergy Church Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721 SARA JÖTTEN AND JULE SIEGFRIED: The German Strike Ban for Public Officials in Light of the Jurisprudence of the European Court of Human Rights: The Judgments of the Administrative Court of Düsseldorf of December 2010 and the Administrative Court of Kassel of July 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731 STEPHANIE SCHLICKEWEI: Denial of Individual Right to Compensation to Victims of World War II Massacre in Light of the ECHR: Sfountouris and Others v. Germany 741 CLAUDIA SCHUBERT: Whistle-Blowing after Heinisch v. Germany: Much Ado About Nothing? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753 ANTJE SIERING: Freedom of Expression in a National Context: The Case of Hoffer and Annen v. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765 PHILIPP TAMME: No Residence Permit after Marriage in Denmark: The Federal Administrative Court in Breach of EU Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773

BOOK REVIEWS

Piet Eeckhout: EU External Relations Law (GIEGERICH) . . . . . . . . . . . . . . . . . . . . . . . . . . .

787

8

TABLE OF CONTENTS

Duncan French/Mathew Saul/Nigel D. White (eds.): International Law and Dispute Settlement: New Problems and Techniques; and Enzo Cannizaro (ed.): The Law of Treaties Beyond the Vienna Convention (TAMS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794 Florian Hofmann: Helmut Strebel (1911–1992) Georgeaner und Völkerrechtler (SCHRÖDER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 Victor Kattan: From Coexistence to Conquest – International Law and the Origins of the Arab-Israeli Conflict, 1891–1949 (MÜLLER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801 Martti Koskenniemi: The Politics of International Law (JIA) . . . . . . . . . . . . . . . . . . . . . . .

802

André Nollkaemper: National Courts and the International Rule of Law (JIA) . . . . . . .

805

Alexander Orakhelashvili (ed.): Research Handbook on the Theory and History of International Law (ELBERLING) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808 Lisa Ott: Enforced Disappearance in International Law (JÖTTEN) . . . . . . . . . . . . . . . . . .

812

Armin von Bogdandy/Sabino Cassese/Peter M. Huber (eds.): Handbuch Ius Publicum Europaeum. Band III: Verwaltungsrecht in Europa: Grundlagen; Band IV: Verwaltungsrecht in Europa: Wissenschaft (BECKER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814 Onuma Yasuaki: A Transcivilizational Perspective on International Law (SCHRIEWER) 816 Andreas Zimmermann (ed.): The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (HAILBRONNER) . . . . . . . . . . . . . . . . . . . . . . . 820

BOOKS RECEIVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

823

FORUM THE GLOBAL FINANCIAL CRISIS

The International Financial Architecture as a Legal Order CHRISTIAN TIETJE(

ABSTRACT: The term ‘international financial architecture’ is usually used in order to describe institutional and regulatory attempts of international institutions and actors to provide a basic framework for cross-border financial transactions. In this article it is argued that a more integrated perspective based on interdependencies of financial markets, currency law, and State debts is necessary to conceptualise the challenges of the international financial system. This argument is supported by both historical reasons and current developments. Moreover, as financial market instruments are inherently embedded in domestic legal orders, a multi-layered legal approach is necessary. In addition, the structure of the international financial order is also determined by the fact that there is an increasing necessity to integrate approaches of macro and micro prudential regulation and supervision. All this leads to a constitutional perspective based on relevant provisions of the UN Charter. Even though one may thus identify several aspects of coordination and cooperation as essential for an effective and efficient international legal order, the current international financial architecture remains fragmented. It seems to be too early to acknowledge a comprehensive international financial order. KEYWORDS: financial law, currency law, State debts, Bretton Woods, G20, IMF, World Bank, WTO, international economic governance

I. Introduction The ‘International Financial Architecture’ is once again, after the economic crises of 2007–2009, a catchphrase in political and academic discussions around the globe. Usually while discussing the international financial architecture, issues of its possible reform dominate. This topic shall not be the starting point for this article because it is necessary to define the actual structure of the international financial architecture before discussing aspects of its reform. For this and other reasons Paul Krugman, in his direct and sometimes not very diplomatic way of making a point, emphasised after the Asian crisis of 1997/1998 that the first step in reforming the international finan(

Professor of International Economic Law, University of Halle.

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cial architecture “is to find out who is responsible for that pompous phrase, and punish him.”1 Leaving aside the question of whether one should really punish the person who invented the phrase, it is at least quite clear who actually, for the first time in public, talked about the ‘international financial architecture’. On 14 April 1998, the former Secretary of the Treasury of the United States Robert E. Rubin gave a presentation at the Brookings Institution in Washington D.C. entitled “Strengthening the Architecture of the International Financial System;”2 quickly afterwards, several think tanks published first papers on the ‘international financial architecture’3 and today it is common to refer to this phrase.4 However, even today it remains largely unclear what the definition of international financial architecture is. One approach is through identifying four main elements of the international financial architecture: (1) international financial standards (IFSs) aimed at preventing or at least mitigating systemic international financial crises; (2) the different governmental, non-governmental and intermediate international financial organisations, which have the task of developing and ensuring implementation of IFSs; (3) the actors and instruments who are responsible for solving international financial crises; and (4) those instruments and IFSs which are aimed at ensuring integrity and transparency of financial markets, e.g. with regard to money laundering or financing of international terrorism.5 1

Paul Krugman, Analytical Afterthoughts on the Asian Crisis, in: Takashi Negishi/Rama V. Ramachandran/Kazuo Mino (eds.), Economic Theory, Dynamics and Markets: Essays in Honor of Ryuzo Sato (2001), 243, 244. 2

A transcript of the presentation is available at: http://www.brookings.edu/events/1998/0414 global-economics.aspx (accessed on 26 November 2011). 3

See, e.g., Barry Eichengreen, Toward a New International Financial Architecture, Institute for International Economics (1999); Michael Mussa, Reforming the International Financial Architecture: Limiting Moral Hazard and Containing Real Hazard, in: David Gruen/Luke Gower (eds.), Capital Flows and the International Financial System, Economic Group, Reserve Bank of Australia (1999), 216; from a scholarly perspective see early Peter Behrens, The Institutional Architecture of Global Financial Markets, Maastricht Journal of European and Comparative Law 6 (1999), 271; Ludwig Gramlich, Eine neue internationale ‘Finanzarchitektur’ oder: Der IMF in der Krise?, Archiv des Völkerrechts (AVR) 38 (2000), 399. 4

For a comprehensive assessment see Joseph Jude Norton, NIFA-II or ‘Bretton-Woods-II’? The G20 (Leaders) summit process on managing global financial markets and the world economy – quo vadis?, Journal of Banking Regulation 11 (2010), 261. 5 Mario Giovanoli, The International Financial Architecture and its Reform after the Global Crisis, in: id./Diego Devos (eds.), International Monetary and Financial Law – The Global Crisis (2010), 3, 4.

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These elements certainly represent important aspects of the international financial architecture. However, it is important to realise that any international financial order should not focus only on the prevention and management of financial crises. Instead, an international financial order must also strive to enable and ensure individual liberty as the essential prerequisite of any international financial transaction and of international economic welfare. Moreover, it is not only necessary to include a perspective of individual liberty into the discussion on the international financial architecture and order, but also to broaden the perspective ratione materiae. Discussions on the international financial architecture usually concentrate on international transactions of financial instruments in a classical sense, i.e. securities, derivative, etc.6 The entire areas of currency law and sovereign debts are not considered. As will be demonstrated in this article, a more integrated perspective based on intensive interdependencies of financial markets, currency law, and State debts is necessary to conceptualise the challenges of the international financial system. Moreover, this article will demonstrate that the financial crisis between the years 2007 and 2009 has roots in the circumstances of the indicated integrative nature. Accordingly, this paper will identify de lege lata and de lege ferenda whether and to what extent one may identify elements constituting an international financial order, i.e. values, instruments, and actors shaping the international financial architecture in a comprehensive formal and substantial sense. In order to do so, it is necessary to recall some historical facts; therefore, section II will discuss the historical perspective of the issue in an effort to explain the current deficits and problems of the existing system. Following this, section III will explore and analyse the current system of ‘international financial architecture’. This analysis is followed by a proposal on how to lay the groundwork for a real international financial order in section IV, and an outlook on necessary future improvements in section V.

6 See, e.g., the report by the expert group appointed by the German Federal Government: Expertengruppe ‘Neue Finanzarchitektur’, New Financial Order, Recommendations by the Issing Committee, Preparing G-20 – London, 2 April 2009, available at: http://www.bundesregierung.de/Content/DE/ StatischeSeiten/Breg/G8G20/Anlagen/bericht-issing-london.pdf?__blob=publicationFile (accessed on 22 February 2011).

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II. From 1929 to 2009: The Development of the International Systems of Finance, Currency and Sovereign Debts A. Early Roots

1. Currency System Currency law and international efforts to coordinate currency systems are a relatively new development in the international system. This is due to the fact that monopolies of currency within single States were unknown for the majority of history. On the contrary, it was normal to have competing currencies within one territory. This slowly began to change after the establishment of the modern State with the Westphalian Peace Treaties of 1648. However, real monopolies on currencies, i.e. an exclusivity of one currency in one territory, were factually only developed in the 18th century. It was not until the 19th century that the first currency monopoly was legally established. This happened with the Banking Charter Act 1844 in the United Kingdom. This development continued globally into the second half of the 19th century. It was not until World War II that customary international law began recognising currency monopolies.7

2. Sovereign Debts The history of sovereign debts is long, namely with regard to the default of payments on credits and/or interests towards foreign creditors. Spain, for example, defaulted thirteen times between the 16th and 19th century. In the same time, France defaulted eight times, Portugal and the German States six times respectively. In addition, the Latin-American States and the Ottoman Empire declared that they were unable to fulfil their obligations toward foreign creditors several times during the 19th and 20th centuries.8 In fact, the 20th century is characterised by up to ten 7

Benjamin J. Cohen, Monetary Governance and Capital Mobility in Historical Perspective, in: Rainer Grote/Thilo Marauhn (eds.), The Regulation of International Financial Markets – Perspective for Reform (2006), 27, 32 et seq. 8 Arturo C. Porzecanski, Dealing with Sovereign Debt: Trends and Implications, in: Chris Jochnick/ Fraser A. Preston (eds.), Sovereign Debt at the Crossroads (2005), available at: http://www.law.george town.edu/international/documents/Porzecanski_000.pdf (accessed on 19 November 2011).

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cases of State default per decade. The 1930s are an exception in this regard with more than twenty sovereign defaults due to the world economic crisis of 1929. Even though sovereign defaults are a relatively normal phenomenon in history, international rules pertaining to a State insolvency regime have not been developed. Historically, the normal reaction by a creditor on a State’s default was the threat of military action, which is of course today prohibited by Article 2 (4) of the UN Charter,9 or solving by classical means of diplomatic protection.10 Although State practice for a long time was restricted to classical public international law instruments in case of sovereign defaults, it is interesting to see that scholars were already developing innovative concepts in order to increase legal security of private creditors towards States as debtors in the late 19th and early 20th centuries, namely by granting private individuals an international legal personality.11 State practice at that time did not follow such proposals. Moreover, it was even unclear whether sovereign debts were legally relevant in domestic law as famously indicated by Sir George Jessel MR in Twycross v. Dreyfus: “[t]he result, therefore, is that these socalled bonds amount to nothing more than engagements of honour, binding so far as engagements of honour can bind, the government that issued them, but are not contracts […].”12 The entire legal development was summarised by Georg Schwarzenberger in 1988 as follows: [a]nalyses of State bankruptcy […] in international law may lead to the perhaps oversimplified conclusion that, at least for the purpose of international law, the problem does not exist. More searching minds may conclude that […] the problem exists, but is insoluble.13

9

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

10

On diplomatic protection in a situation of sovereign default see, e.g., PCIJ, Case Concerning the Payment of Various Serbian Loans Issued in France, Judgment of 12 July 1929, Series A, No. 20, 17 et seq.; on the history of military activities because of sovereign default see, e.g., Karl Pflug, Staatsbankrott und internationales Recht (1898). 11 For details and references see Karsten Nowrot, Normative Ordnungsstruktur und private Wirkungsmacht – Konsequenzen der Beteiligung transnationaler Unternehmen an den Rechtssetzungsprozessen im internationalen Wirtschaftssystem (2006), 347 et seq. 12 13

Twycross v. Dreyfus (1877), 5 Ch D 605.

Georg Schwarzenberger, State Bankruptcy and International Law, in: Wybo P. Heere (ed.), International Law and Its Source – Liber Amicorum Maarten Bos (1988), 137, 144; on development in general see Alexander Szodruch, Staateninsolvenz und private Gläubiger – Rechtsprobleme des Private Sector Involvement bei staatlichen Finanzkrisen im 21. Jahrhundert (2008), 72 et seq.

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3. Financial Markets For a long time public international law did not pay attention to private financial markets, which are different from currency markets and sovereign debts. This is surprising as the internationalisation of financial markets is entrenched in history.14 More so than sovereign defaults, private financial crises and banking crises have been normality throughout history in both developed and developing countries.15 However, it is important to note that international financial markets have not been developed as primarily private financial markets. Instead, cross-border financial transactions in history largely fulfilled the purpose of financing State budgets.16 In addition, for a long time private banking crises only affected the domestic economy, thus it did not have a systemic global impact. All these show why there was no need to develop specific international rules for private financial markets. However, for quite some time there have been factual interrelationships between international capital movement and private financial markets. The main cause was the lack of restrictions on capital movement at the end of the 19th century. Thus, substantial international capital flow in emerging markets took place, namely in the form of bonds. Because of this, the time before World War I has been termed the “golden age for emerging market bonds and international capital flows to emerging markets.”17 The difference between before World War I and today is the amount of creditors involved in international capital transactions. Pre-World War I there was no real globalised financial market like there is now. After World War I the international financial centre moved from London to New York. Furthermore, at the end of the 1920s, about 800,000 US citizens held foreign bonds. At that time, bonds were the most important international financial market instrument. States were almost exclusively the recipients of international financial transactions, thus an international financial market 14 For details see David Held/Anthony McGrew/David Goldblatt/Jonathan Perraton, Global Transformations (1999), 190 et seq. 15

Carmen M. Reinhart/Kenneth Rogoff, This Time is Different: Eight Centuries of Financial Folly (1999); Charles P. Kindleberger/Robert Aliber, Manias, Panics, and Crashes: A History of Financial Crises (5th ed. 2005). 16 17

Held et al. (note 14), 191 et seq.

Paolo Mauro/Nathan Sussmann/Yishay Yafeh, Emerging Market Spreads: Then versus Now, IMF Working Paper WT/00/190, available at: http://www.imf.org/external/pubs/ft/wp/2000/wp00190.pdf (accessed on 19 November 2011), 3; Szodruch (note 13), 73.

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with private parties on both sides of the transaction, i.e. a real international private financial market, did not exist.18 However the interdependence of bonds, sovereign debts and private capital markets were already becoming apparent at that time.

B. The Intellectual Background of Bretton Woods: Keynes and White

The Bretton Woods System was created on the basis of the prevailing factual setting of the international financial markets. The most important influencers were the head of the US delegation, Harry Dexter White, and British economist John Maynard Keynes. Although White and Keynes sometimes disagreed,19 the traumatic experience of the world economic crisis of 1929 and what is known today as ‘Keynesianism’ united them. Moreover, both agreed that fixed but adjustable exchange rates are necessary in order to enable free international trade in goods and services. This must be supplemented by general (Keynes) or at least possible (White) capital controls.20 Indeed, the discussion about financial markets at Bretton Woods involved only capital controls. With regard to further aspects of financial markets, everybody at that time accepted what Keynes wrote in 1933: “[…] above all, let finance be […] national.”21 In spite of some common beliefs, some fundamental differences concerning the appropriate approach towards the international monetary systems remained, and in the end White prevailed in his position. This is true regarding the regulation of bilateral monetary relations between the US and the United Kingdom (Keynes), but also in establishing a multinational and integrated system for monetary, investment and trade issues.22 However, the International Monetary Fund (IMF) was kept small and was prevented from being a lender of last resort as a consequence of this approach.23 18

For details see Szodruch (note 13), 73 et seq.

19

See James M. Boughton, Why White, not Keynes? Inventing the Postwar International Monetary System, IMF Working Paper, WP/02/52. 20

Ibid., 11; for details on the opinion of John Maynard Keynes concerning capital controls see, e.g., Cohen (note 7), 45 et seq.; comprehensively also Manuela Moschella, Governing Risk – The IMF and Global Financial Crises (2010), 5. 21

John Maynard Keynes, National Self-Sufficiency, Yale Review 22 (1933), 755, 769.

22

Boughton (note 19), 13 et seq.

23

Ibid., 16 et seq.

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C. Bretton Woods and the International Economic System

As a result of the Bretton Woods conference in July 1944, the International Bank for Reconstruction and Development (IBRD) (also called World Bank) and the IMF were established. The original idea of the World Bank was just to function as a bank and to give money via credits or guarantees to those regions of the world severely affected by World War II.24 In this regard, the World Bank was originally seen as representing the investment pillar of the international economic system with trade and finance as the other two pillars.25 However, since the US started its own financial support programme in 1948, the European Recovery Program,26 the World Bank actually never got a chance to fulfil its original mandate. Thus, the Bank quickly changed its focus and became a development institution.27 The original mandate of the IMF, as the second Bretton Woods institution, was restricted to stable currency systems in direct connection to liberalised trade in goods and services.28 Of course, this mandate was dependent on the establishment of a third Bretton Woods institution responsible for liberalised international trade in goods and services. The establishment of an International Trade Organization (ITO) as designed by the Havana Charter of 1948 would have completed the architecture of the international economic system. Since the Havana Charter never entered into force and the ITO was never established,29 the IMF was thus never able to fulfil its original mandate, even though it worked quite successfully after its establishment. Regarding interna24 For details see, e.g., Sabine Schlemmer-Schulte, Internationales Währungs- und Finanzrecht, in: Christian Tietje (ed.), Internationales Wirtschaftsrecht (2009), § 9, paras. 77 et seq.; Andreas F. Lowenfeld, International Economic Law (2nd ed. 2008), 93 et seq. 25

Douglas Arner/Ross P. Buckley, Redesigning the Architecture of the Global Financial System, Melbourne Journal of International Law 11 (2) (2010), 1, 6. 26 For details see Alfred de Zayas, Marshall Plan (European Recovery Program), MPEPIL, available via: http://mpepil.com (accessed on 19 November 2011). 27

Schlemmer-Schulte (note 24), § 9, para. 81.

28

See Art. 1 Articles of Agreement of the International Monetary Fund, 27 December 1945, UNTS 2, 40 (IMF Agreement): “The purposes of the International Monetary Fund are: […] (ii) To facilitate the expansion and balanced growth of international trade, and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the development of the productive resources of all members as primary objectives of economic policy. (iii) To promote exchange stability, to maintain orderly exchange arrangements among members, and to avoid competitive exchange depreciation”. 29

See, e.g., Lowenfeld (note 24), 23 et seq.

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tional financial markets it is however important to note that the legal order of the IMF only provided for the possibility of control of capital transfers. Based on Article VI (Section 3) IMF Agreement,30 the entire issue of financial markets was therefore left to the sovereign discretion of States, which aligns itself with the above mentioned Keynes quote to “let finance be […] national.”31 The idea of nationalising finance was based on the firm belief that the international financial and economic crisis of 1929 was due to speculative financial transactions, and that capital controls could have as a result prevented it.32 As a logical consequence of this prevailing opinion of that time, States envisaged the dissolution of the Bank for International Settlements (BIS) while establishing the Bretton Woods System. As this never happened, the deficiencies of the system become obvious.33 Furthermore, the original plan was to integrate completely the Bretton Woods institutions into the UN System. In accordance with Articles 57 and 63 Charter of the United Nations (UN Charter), the intent was to divide labour between the UN, namely the Economic and Social Council (ECOSOC), which would be responsible for the overall international economic and financial system, and the Bretton Woods institutions, which would concentrate on more technical issues.34 It is well known that the East-West conflict prevented any effective political work by ECOSOC. Moreover, World Bank, IMF, and today the World Trade Organization (WTO) quickly established a rather reluctant position toward the UN.35 In sum, it is important to emphasise that the design of Bretton Woods was not to establish a comprehensive international economic or financial order in terms of an integration of trade, finance, investment and currency. Furthermore, a genuine lender of last resort was not established. With the exception of capital control, financial market 30

“Members may exercise such controls as are necessary to regulate international capital movements […]”.

31

Keynes (note 21).

32

For details on this opinion namely of Keynes see Moschella (note 20), 5; Boughton (note 19), 10.

33

Arner/Buckley (note 25), 5 et seq.

34

Ibid., 4 et seq.

35

On the ‘special’ relationship of IMF and UN see Daniel D. Bradlow, The Governance of the IMF: The Need for Comprehensive Reform (2006), 20, available at: http://www.g24.org/brad0906.pdf (accessed on 19 November 2011); see also the Special high-level meeting of ECOSOC with the Bretton Woods institutions, the World Trade Organization and the United Nations Conference on Trade and Development, 10–11 March 2011, available at: http://www.un.org/esa/ffd/ecosoc/springmeetings/ 2011/index.htm (accessed on 19 November 2011).

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stability was not addressed, and with the exception of balance of payment questions, the entire issue of sovereign debts was left open. Finally, the envisaged integration of the Bretton Woods institutions into the political system of the UN failed.

D. The (Re-)Invention of the System: 1970 until 2007

1. First Steps Even though the Bretton Woods system was far from complete, the institutions themselves quickly found their respective roles in the international economic system. The World Bank became an important player in the area of development policy. The IMF worked successfully in a system of fixed exchange rates in the 1950s and the 1960s and the framework of the General Agreement on Tariffs and Trade (GATT),36 which came into force on 1 January 1948, liberalised world trade. However, (private) international financial markets did not play a significant role in the international economic system after 1945. Most States had restrictions on capital movement in force at that time, meaning limited opportunities regarding international financial transactions. Fred Hirsch and Peter Oppenheimer described the situation of the international financial system at the end of the 1960s as “like a mini-golf course, with some hole or other always accessible, but others shut off and a variety of shifting obstacles to be negotiated.”37 The situation changed at the end of the 1960s. At this time, private international financial markets became more visible and began to play a significant role in the international economic system. This was due to the introduction of ‘Eurobonds’ in 1963. Eurobonds are bonds issued in a currency other than that of the country of issuance which are usually placed on different domestic financial markets simultaneously by big banks or banking consortiums. Some consider Eurobonds to be a “genuinely de-territorialised form of finance.”38 Eurobonds had the effect that the 36

General Agreement on Tariffs and Trades, 30 October 1947, UNTS 55, 187.

37

Fred Hirsch/Peter Oppenheimer, The Trial of Managed Money: Currency, Credit, and Prices, 1920–1970, in: Carlo M. Cipolla (ed.), The Fontana Economic History of Europe: The Twentieth Century, Part Two (1976), 661, cited by Eric Helleiner, States and the Reemergence of Global Finance – From Bretton Woods to the 1990s (1994), 81 et seq. 38

Szodruch (note 13), 52, with further references on Eurobonds in general.

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international financial market, until the 1960s almost totally controlled and restricted by States, was opened up to the private sector. However at that time the only important private actors in the financial market were exclusively large banks and banking consortiums. In addition to the factual changes in the international financial market, important structural developments occurred in the 1970s. First there was the well-known shift from fixed to flexible exchange rates after the United States lifted the link between the US Dollar and the gold standard on 15 August 1971. This development, which was at least partly due to the problems of the US State deficit at that time, put pressure on the IMF to redefine its task. After a first modification of the IMF Agreement concerning special drawing rights (SDRs) in 1968 the Member States of the IMF reacted to the change with a substantial revision of Article VI IMF Agreement and thus an extension of the IMF mandate in 1976. This revision gave the IMF a new mandate to supervise the international currency system with regard to macroeconomic considerations.39 This development goes hand in hand with the introduction of conditionality as an essential policy tool of the IMF even today. The reason for this was that around the beginning of the 1970s, the IMF had almost exclusively developing countries as ‘clients’. This marked the beginning of the IMF’s slow transformation into a development institution.40 Even though the Washington consensus defines the conditionality policy of the IMF with regard to trade, foreign investment, and financial markets, those issues were never included in the IMF mandate. The shift in the mandate of the IMF at the beginning of the 1970s goes hand in hand with a fundamental change in the global structure of sovereign debts. Most developing countries financed their State budgets after World War II with the help of credits they received from developed countries and the Bretton Woods institutions. As already indicated, private capital played hardly any role and only became relevant with the introduction of Eurobonds. However, the energy crisis at the beginning of the 1970s led to massive profits of the oil-exporting countries. These countries placed their currency reserves – known as Petro Dollars – on the EuroDollar markets, i.e. on accounts of branches of US Banks in the United Kingdom, namely London. The banks themselves used these savings to invest in Latin American 39

See, e.g., Arner/Buckley (note 25), 10.

40

Schlemmer-Schulte (note 24), § 9, paras. 50 et seq.

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States. This was done with hardly any risk insurance. In 1982, oil-importing countries owed debts of about US $ 300.8 billion to foreign private creditors. At the same time, US banks invested about 211 % of their capital in credits to emerging economies.41 The Bretton Woods system was more or less unaffected by these developments. Instead, a structure parallel to Bretton Woods dealing with the described emerging challenges developed. The respective developments occurred under the auspices of the BIS in Basel, Switzerland. As a result of the insolvency of the German Herstatt Bank, the US Franklin National Bank, and the Israel-British Bank in London, the governors of the central banks of the G10 countries founded the Standing Committee on Banking Regulations and Supervisory Practices, which was renamed the Basel Committee on Banking Supervision in 1990.42 The insolvencies of these banks were however only the immediate cause of the establishment of the Basel Committee. The real genesis lies in the introduction of new actors and an increase in the volume of international financial markets, i.e. in the emerging globalisation of financial markets in the 1970s. Essentially, the establishment of the Basel Committee was a reaction to the lack of international standards for the globalised financial market at that time.43 Along with the founding of the Basel Committee, international regulatory structures also emerged in the area of securities. In 1974, the World Bank and the Organization of American States jointly established the regional Inter-American Association of Securities Commissions and Similar Organizations as an informal discussion group.44 This group became the basis for establishing the International Association of Securities Commissions in 1983–1984, which today is the most important regime for international security regulation.45 As a further development, attempts to harmonise 41

Szodruch (note 13), 89 et seq.

42

For details see Birgit Rost, Basel Committee on Banking Supervision, in: Christian Tietje/Alan Brouder (eds.), Handbook of Transnational Economic Governance Regimes (2009), 319. 43

Norton (note 3), 266.

44

Christoph Möllers, Transnationale Behördenkooperation: Verfassungs- und völkerrechtliche Probleme transnationaler administrativer Standardsetzung, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 65 (2005), 351, 360; David Zaring, Informal Procedure, Hard and Soft, in International Administration, New York University Public Law and Legal Theory Working Papers 3 (12) (2006), 11 et seq. 45 Detailed Rost (note 42); David Alexander, International Organization of Securities Commissions, in: Christian Tietje/Alan Brouder (eds.), Handbook of Transnational Economic Governance Regimes (2009), 439.

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accounting standards also started in the mid-1970s. This began with attempts by the Organisation for Economic Co-operation and Development (OECD) and the UN respectively and led to the establishment of the International Accounting Standards Committee on 29 June 1973, which the International Accounting Standards Board replaced in April 2001.46 With the establishment of the aforementioned organisations, an overall movement towards the creation of several intermediate and private international and regional standard setting bodies and other forms of cooperation and coordination concerning global financial markets started. Without going into details, one may state that with an increase in the intensity of globalisation of financial markets in the 1970s, the complexity of the web of informal, intermediate and non-governmental regimes of cooperation and coordination on and for financial markets increased, too.47 Thus, an important part of what is today called Global Administrative Law (GAL) emerged.48 The emerging global regime on financial markets at that time was, however, not restricted to typical forms of administrative coordination and cooperation. Instead, a similar development occurred with regard to political structures. The first important event in this regard was on 25 March 1973 as the finance ministers of Germany, France, UK and the USA met in the White House library to discuss the challenges of the international economic and financial systems after the shift from fixed to flexible exchange rates. After this meeting, the group met on a regular basis and became known as the G5 after Japan joined the talks. Throughout the years the group expanded the scope of issues it discussed to encompass general political topics relevant to the international system. It was the basic conviction of the G5 that the then existing international forums, namely the UN, was not effective or capable of coping with the given challenges to the international economic system, i.e. that there was no

46

Detailed Rost (note 42), 169 et seq.; id., International Accounting Standards Board, in: Christian Tietje/ Alan Brouder (eds.), Handbook of Transnational Economic Governance Regimes (2009), 367 et seq. 47 48

For details see comprehensively Norton (note 4), 266 et seq.

On Global Administrative Law see, e.g., Benedict Kingsbury/Nico Krisch/Richard B. Stewart, The Emergence of Global Administrative Law, Law & Contemporary Problems 68 (2005), 15; Sabino Cassese/Bruno Carotti/Lorenzo Casini/Marco Macchia/Euan MacDonald/Mario Savino (eds.), Global Administrative Law – Cases, Materials, Issues (2nd ed. 2008), available at: http://www.iilj.org/GAL/ documents/GALCasebook2008.pdf (accessed on 19 November 2011); for a comprehensive overview on Global Administrative Law see: Bibliographical Resources, available at: http://www.iilj.org/GAL/ documents/GALBibliographyMDeBellisJune2006.pdf (accessed on 19 November 2011).

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existing effective global economic governance structure. It was on this basis that the G7 and G8 emerged. However, throughout the history of the ‘G-group’, its focus on international governance shifted more and more away from questions of the international monetary system.49

2. New International Financial Architecture I (NIFA I) The developments in the 1970s concerning administrative and political (gubernative)50 cooperation and coordination finally led, in the 1990s, to the establishment of what has been called the New International Financial Architecture I (NIFA I).51 The immediate background for the NIFA I was the financial crisis in Mexico in 1994 (‘Tequila crisis’), the Asian crisis in 1997, and the Brazil and Russia crises in 1998/1999. The G7 finance ministers reacted to these crises in May 1998 with the report “Strengthening the Architecture of the Global Financial System.” With this report, a new dimension of international cooperation concerning the global financial markets began. The NIFA I worked quite successfully until about 2000, specifically with regard to surveillance, standard setting, better transparency and exchange of information. Important effects of its success are the establishment of the Financial Stability Forum (FSF)52 (now: Financial Stability Board), of the Financial Sector Assessment Program (FSAP),53 and of the Reports of the Observance of Standards and Codes (ROSCs), also as a joint initiative of IMF and World Bank. Moreover, NIFA I is characterised by the enlargement of G7 to the G20 finance

49

Peter I. Hajnal, The G8 System and the G20 – Evolution, Role and Documentation (2007), 11 et seq.; Alan Brouder, G8, in: Christian Tietje/Alan Brouder (eds.), Handbook of Transnational Economic Governance Regimes (2009), 95, 96 et seq., with further references. 50 ‘Gubernative’ refers to the part of government being responsible for political decisions and leadership. On the notion of gubernative and the necessity to differentiate between administrative and gubernative structures see Armin von Bogdandy, Gubernative Rechtsetzung (2000), 107 et seq.; Christian Tietje, Internationalisiertes Verwaltungshandeln (2001), 188 et seq., with further references. 51

Very comprehensively on this Norton (note 4), 272 et seq.

52

On the FSF see Tony Porter, Financial Stability Board, in: Christian Tietje/Alan Brouder (eds.), Handbook of Transnational Economic Governance Regimes (2009), 345. 53

Founded in 1999. For details see: http://www.imf.org/external/np/fsap/fsap.asp (accessed on 19 November 2011).

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ministers54 and certain reforms of the IMF. The reforms of the IMF made the organisation more of a standard setter in itself.55 The ambitious structure of NIFA I was successful for some time, namely in its combination of political leadership by G8/G20 and technical cooperation within institutions such as the FSF and the IMF. However, around 2000, and at the latest after 11 September 2001, the focus of G8/G20 shifted from financial market stability to more general political topics. As we know today this was a fatal development, because some of the real causes for the financial crisis in 2007 and 2009 emerged during that time. Even though it is hard to identify the one and only cause of the financial crisis in 2007 and 2009, the low interest rates policy of the Federal Reserve plays a role. This policy was only possible because of the surplus of financial resources in the US market due to China’s policy of investing its foreign currency reserves, which is currently about US $ 3 trillion56 in the US.57 Thus, the decisive foreign currency reserves of China are, to some extent, a result of the export performance of the country after its accession to the WTO on 11 December 2001. Therefore the interdependence of trade, currency, and financial markets becomes obvious, even though this phenomenon did not get any attention in NIFA I. Only after 2002, and only on a domestic level, namely the US, did the issue of China’s foreign currency reserve and the possible ‘currency manipulation’ become an issue.58 The ignorance towards the interdependence of trade, currency, and financial markets 54

Norton (note 4), 275 et seq.

55

Ibid., 280.

56

The China Post, 15 April 2011, China foreign currency reserves surged past US $ 3 trillion in March: China’s central bank, available at: http://www.chinapost.com.tw/business/asia-china/2011/04/ 15/298686/China-foreign.htm (accessed on 19 November 2011). 57 On the causes of the crisis see, e.g., Martin Hellwig, Finanzmarktregulierung – Welche Regelungen empfehlen sich für den deutschen und europäischen Finanzsektor? – Finanzkrise und Reformbedarf –, Gutachten E zum 68. Deutschen Juristentag (2010), 365 et seq.; Christoph Ohler, International Regulation and Supervision of Financial Markets After the Crisis, European Yearbook of International Economic Law (EYIEL) 1 (2010), 3, 6 et seq.; comprehensively Maurice Obstfeld/Kenneth Rogoff, Global Imbalances and the Financial Crisis: Products of Common Causes (2009), available at: http://www.frbsf. org/economics/conferences/aepc/2009/09_Obstfeld.pdf (accessed on 19 November 2011). 58

For a detailed discussion see Martina Franke, Chinas Währungspolitik in der Kritik des USamerikanischen und des internationalen Wirtschaftsrechts (2008), 13 et seq.; see also the contributions in: Simon J. Evenett (ed.), The US-Sino Currency Dispute: New Insights from Economics, Politics and Law (April 2010), available at: http://www.voxeu.org/reports/currency_dispute.pdf (accessed on 19 November 2011).

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is demonstrated by the fact that even though Article III:5 of the Agreement Establishing the WTO59 provides for cooperation of the WTO, “as appropriate, with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies” in order “to achieving greater coherence in global economic policy-making,” WTO members in fact constantly restricted the mandate of the organisation with regard to cooperation with other international agencies.60 Even though the topic is not at all new,61 no real attempt to achieve greater coherence in global economic policymaking was made.62 In contrast to the issue of interdependence of trade, currency, and financial markets, the IMF discussed the problem of State insolvency intensively. In the aftermath of the insolvencies in the 1990s in Mexico, Russia, and Brazil as well as that of Argentina in 2001, the IMF realised the connection between sovereign debts and stability of the international financial market. Anne Krueger, the First Deputy Managing Director of the International Monetary Fund at that time, proposed the establishment of a “Sovereign Debts Restructuring Mechanism.”63 This proposal never got any political support and the IMF officially rejected it at the spring meeting in 2003.64 Therefore even today there is no international legal regime dealing comprehensively with the complexity of international and domestic law affected by a sovereign default. Moreover, the entire topic is not at all integrated into the international financial architecture, even though current events, e.g. the financial situation in Greece, demon-

59 Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, UNTS 1867, 3 (WTO Agreement). 60 For details see Christian Tietje, Global Governance and Inter-Agency Co-operation in International Economic Law, Journal of World Trade 36 (2002), 501 et seq. 61

See, e.g., Declaration adopted by the Trade Negotiations Committee on 15 December 1993, Contribution of the WTO to achieving greater coherence in global economic policymaking, available at: http://www.wto.org/english/docs_e/legal_e/32-dcohr.pdf (accessed on 19 November 2011). 62

See, e.g., Marc Auboin, Fulfilling the Marrakesh Mandate on Coherence: Ten Years of Cooperation between the WTO, IMF and World Bank, WTO Discussion Paper 13 (2007), available at: http://www. wto.org/english/res_e/booksp_e/discussion_papers13_e.pdf (accessed on 19 November 2011). 63 International Financial Architecture for 2002: A New Approach to Sovereign Debt Restructuring, Address by Anne Krueger, First Deputy Managing Director, International Monetary Fund, Given at the National Economists’ Club Annual Members’ Dinner American Enterprise Institute, Washington D.C., 26 November 2001, available at: http://www.imf.org/external/np/speeches/2001/112601.htm (accessed on 19 November 2011). 64

Christoph Ohler, Der Staatsbankrott, Juristenzeitung 60 (2005), 590, 598.

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strate how important the interrelationship between the budgetary crisis of a State and the stability of international financial markets are. The real problem of leaving out the topic of State insolvency from the international financial architecture is not that the world saw some spectacular bankruptcy of States in the last few years, but the phenomenon of ‘private sector involvement’, i.e. the historical unprecedented interdependence of private international financial markets and sovereign debts.65 Private sector involvement has its roots in developments at the end of the 1980s. It became obvious around 1989 that something had to be done to break the everlasting circle of financing State budgets by credits provided by a limited number of international banks, leading to sovereign default of that State some years later, necessitating financial aid by international organisations such as the IMF and debt restructuring based on new international credits by large banks, further sovereign default a number of years later and so on. In order to get out of this never-ending cycle, a radical restructuring of sovereign debts was necessary. Such a new system was proposed by the Brady Plan. According to the principles developed by US Treasury Secretary Nicholas F. Brady in March 1989, large credits to emerging economies are restructured to bonds which are put on the international financial markets in order to finance the original credit. With this, the structure and indeed number of creditors dramatically changes. In the past, only a limited number of international banks had served as creditors; now, theoretically, an unlimited number of bondholders in different jurisdictions have this ability. Due to private sector involvement in State budget finance, today sovereign defaults necessarily also entail crises in the financial markets. However, with the exception of certain attempts to harmonise the law of collective action clauses,66 the international political and legal community did not accept this radical new structure of State debts or its inherent interdependence with private international financial markets. Therefore, it is evident that the fragmentation of NIFA I had several causes. First, the possibility of creating a comprehensive lender of last resort was never in question. On the contrary, the IMF lost almost all significance after the Asia crisis as its tasks 65 66

Comprehensively Szodruch (note 13), passim.

For details see Elmar B. Koch, Collective Action Clauses – The Way Forward, Georgetown Journal of International Law 35 (2004), 665; Stephan Schill, Der völkerrechtliche Staatsnotstand in der Entscheidung des BVerfG zu Argentinischen Staatsanleihen – Anachronismus oder Avantgarde?, ZaöRV 68 (2008), 45, 65.

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were taken over, at least to some extent, by the FSF and the G20. Moreover, the IMF reached the limits of its financial resources, which became more and more marginal in relation to the volume of international financial markets in total. In this regard, the IMF got into a liquidity crisis with itself.67 In addition, as indicated, NIFA I did not see any serious political or legislative attempt to integrate trade, finance, currency issue and State debt problems. Further, the political leadership by G8 and G20, at least after 11 September 2001, shifted its focus away from international financial stability resulting in NIFA I, more or less becoming an exercise of standardisation and technical/administrative cooperation concerning certain actors and instruments on private financial markets in emerging economies.68 Since NIFA I became so concentrated on the technical/administrative issues, the international financial system became a prominent field of research for those scholars following the approach of GAL.69

III. Today’s International Financial Architecture (New International Financial Architecture II?) A. Modification and Improvement of NIFA I

The rather fragmented and incomplete structure of NIFA I became obvious with the outbreak of the financial crisis in 2007. The logical consequence was that international regulatory efforts trying to abate the crisis quickly focused on reforming NIFA I, in this sense creating a ‘new new’ international financial architecture: a NIFA II. This was done by using the unique governance structure that had been developed in NIFA I, which consisted of a patchwork of several international regimes for technical/administrative standardisation, coordination and cooperation under the auspices of G20 finance.70 The substantial debate concerning NIFA II circled around attempts to overcome the structural deficits of NIFA I. The first ‘real’ G20 summit on 15 November 2008, immediately after the breakdown of Lehman Brothers, already made it clear then that 67

Moschella (note 20), 125.

68

Norton (note 4), 281.

69

Eric J. Pan, Challenge of International Cooperation and Institutional Design in Financial Supervision: Beyond Transgovernmental Networks, Chicago Journal of International Law (CJIL) 11 (2010), 243. 70

Moschella (note 20), 127.

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“market principles, open trade and investment regimes, and effectively regulated financial markets” were at stake, as they are “essential for economic growth, employment, and poverty reduction.”71 The G20 directed this statement at the above-mentioned interface problem of integrating trade, finance, currency and investment.72 Moreover, the G20 made it clear that they claim political leadership for the entire international economic system. This was, at least for some time during the crisis, successful, as evidenced by the rather modest use of protectionist measures at that time.73 Next to the reestablishment of political leadership for the entire international economic system, G20 concentrated on a modification and re-organisation of the international financial architecture to make it more efficient.74 This strategy was in line with an insight elucidated some time later in the De Laroisière Report: “the key failure in the past was not so much a lack of surveillance, although the message emerging from the surveillance could have been sharpened, but a lack of policy action.”75 The G20 summits and meetings of G20 finance ministers with central bank governors which subsequently took place followed the goals and principles formulated in November 2008. In addition to several regulatory efforts concerning standardisation, cooperation, and surveillance, G20 initiated important steps towards strengthening the international financial architecture. One important reform project in this regard was the transformation of the FSF to the current Financial Stability Board (FSB) and a respective enlargement of its mandate.76 Developing its formerly soft structure into 71 Declaration – Summit on Financial Markets and the World Economy, 15 November 2008, para. 2. available at: http://www.g20.org/Documents/g20_summit_declaration.pdf (accessed on 19 November 2011), 72

Norton (note 4), 284.

73

For details see Robert Wolfe, Did the protectionist dog bark?, Transparency, accountability, and the WTO during the global financial crisis, Policy Report, March 2011, available at: http://papers.ssrn. com/sol3/papers.cfm?abstract_id=1802783 (accessed on 19 November 2011). 74

See Declaration – Summit on Financial Markets and the World Economy (note 68), paras. 5 et seq.; Arner/Buckley (note 25), 25 et seq. 75 The High-Level Group on Financial Supervision in the EU (De Larosière Report), 2009, 63, available at: http://ec.europa.eu/internal_market/finances/docs/de_larosiere_report_en.pdf (accessed on 19 November 2011). 76

See Financial Stability Board Charter, 25 September 2009 (FSB Charter), available at: http://www. financialstabilityboard.org/publications/r_090925d.pdf (accessed on 3 December 2011). For details see Enrique R. Carrasco, Global Financial and Economic Crisis Symposium: The Global Financial Crisis and the Financial Stability Forum: The Awakening and Transformation of an International Body, Transnational Law & Contemporary Problems 19 (2010), 203.

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a more concrete and legally definable organisation is comparable with the evolution of the Commission on Security and Cooperation in Europe (CSCE) into the Organisation for Security and Cooperation in Europe (OSCE)77 or the GATT in 1947.78 In line with the institutional evolution of the FSB, the division of labour between the IMF and the FSB was clarified. The idea in this regard is that the IMF would be responsible for macroeconomic surveillance, whereas the FSB would concentrate on micro-economic issues, namely standardisation.79 In this regard, the G20 highlighted that the IMF has the “leading role in drawing lessons from the current crisis, consistent with its mandate” and needs to be equipped with better funding.80 Finally, an important reform concerned the enlargement of membership in all relevant international financial institutions in parallel to the structure of G20.81 This is in line with the modification of quotas and voting rights in the IMF that was decided upon on the spring meeting 2008.82 In sum, the actions taken principally by G20 during the crisis of 2007–2009 were rather modest. They are in line with the structure of the international financial architecture developed in the 1990s. However, two developments are new and systemically important: the already indicated enlargement of membership in relevant financial institutions and the role of G20.

B. Enlargement of Membership in International Financial Institutions

The enlargement of membership not only concerning G8/G20, but also with regard to the FSB, the International Organization of Securities Committees 77

Ulrich Fastenrath/Katja Weigelt, Organization for Security and Cooperation in Europe (OSCE), MPEPIL, available via: http://mpepil.com (accessed on 19 November 2011). 78

Christian Tietje/Matthias Lehmann, The Role and Prospects of International Law in Financial Regulation and Supervision, Journal of International Economic Law (JIEL) 13 (2010), 663, 676 et seq. 79 IMF, The Fund’s Mandate – An Overview, 22 January 2010, para. 11 available at: http://www.imf. org/external/np/pp/eng/2010/012210a.pdf (accessed on 27 November 2011). 80 G20 Summit on Financial Markets and the World Economy, Washington, D.C., 15 November 2008, Action Plan to implement principles for reform, Reforming international financial institutions, available at: http://www.pittsburghsummit.gov/resources/125137.htm (accessed on 19 November 2011). 81

This concerns, e.g., the Basel Banking Committee and IOSCO, see Arner/Buckley (note 25), 25

et seq. 82 The G20 Seoul Summit Leaders’ Declaration, 11–12 November 2010, The Seoul Summit Document, para. 16, available at: http://www.g20.org/Documents2010/11/seoulsummit_declaration.pdf (accessed on 27 November 2011).

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(IOSCO) and other international regimes of standardisation, cooperation and coordination was mainly due to the fact that the world saw a shift in economic power in the past few years. Most important in this regard are the BRIC countries (Brazil, Russia, India, China and now South Africa) and some other countries that have an annual growth rate of 5 to 10 %. As a result of the enlargement of membership, the international financial system adopted political power modifications that had already occurred within the WTO, specifically in connection with the Doha Round.83 Moreover, one should consider the historical implications that come from previous decisions of the ‘G Institutions’, because the decisions tended to be less efficient and influential the smaller the number next to the G.84

C. G20

Perhaps the most important development evolving from the financial crisis is the role and function of the G20. Indeed, several scholars note the G20 as being the real centre of the international financial architecture.85 The reason for this conclusion is based largely on the empirical evidence that the G20 was effectively able to exercise political leadership and also to a certain extent exercise technical standardisation during the crisis. This is in line with the self-characterisation of the G20. As the Indian Finance Minister Palaniappan Chidambaram said, the G20 is “the single most important forum to address the financial and economic issues of the world.”86 In order to analyse and explain the role of the G20 in the current international financial order, one must remember that the phenomenon of an informal gubernative forum of nineteen countries and the EU, dealing with international financial stability 83 See Jeffrey J. Schott, America, Europe, and the New Trade Order, Business and Politics 11 (3) (2009), 1. 84

James M. Boughton, A New Bretton Woods?, Finance & Development 46 (1) (2009), 44: “History shows that reforming the international financial system requires both leadership and inclusiveness”. 85

See, e.g., Ngaire Woods, The G20 Leaders and Global Governance, GEG Working Paper 2010/59, October 2010, available at: http://www.globaleconomicgovernance.org/wp-content/uploads/Woods2010-The-G20-and-Global-Governance.doc.pdf (accessed on 27 November 2011); Norton (note 4), 281 et seq.; Arner/Buckley (note 25), 38 et seq. 86

World Economic Forum, G20 replaces G7 as the most important global forum on economic issues, says Indian finance chief, Press Release, 18 November 2008, available at: http://www.weforum. org/news/g20-replaces-g7-most-important-global-forum-economic-issues-says-indian-finance-chief (accessed on 19 November 2011).

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is not new. The G20, which includes finance ministers and central bank governors, was created as a reaction to the Asian crisis in 1997. The first G20 finance met in 1999 in Berlin.87 The work of G20 finance was successful, at least to some degree, especially regarding crisis management and the introduction of crisis prevention instruments, e.g. Collective Action Clauses (CACs).88 However, once the G20 started to broaden its scope of activities to other areas of international relations like the G7/8 before it, the efficiency of its work declined.89 On an institutional basis, G20 finance is based on G7/G8. Thus, the exclusivity of G7/G8 was passed over to G20 – the selection of members was to some degree hard to explain. However, early proposals by parties such as the former Prime Minister of Canada Paul Martin to upgrade G20 finance to an ‘L20’ consisting of head of States got little political support.90 Evolving the G20 into such a gubernative forum was only possible due to the financial crisis. It is not easy to characterise the G20 in analytical terms. Some scholars tend to compare the G20 with the ‘European Concert’ from the 19th century.91 This can however hardly be seen as particularly innovative as academic literature had previously characterised the G7/G8 in this way.92 Already, this demonstrates how difficult it is to find an adequate description for the G20 in its specific role as ‘the’ gubernative of the international financial system. Other attempts to characterise G20’s specific role in global economic governance are also unhelpful.93 The characterisation of G20 is difficult not merely in political science, but also from a legal viewpoint. It seems to be obvious that G20 is not an international organisation in the classical sense of public international law.94 Thus, in accordance with 87

Paul Martin, A Global Answer to Global Problems, Foreign Affairs 84 (2005), 1, 2.

88

Woods (note 85), 3.

89

Ibid.

90

Brouder (note 49), 114; detailed: G20, The Group of Twenty: A History, 51 et seq. available at: http://www.g20.utoronto.ca/docs/g20history.pdf (accessed on 19 November 2011). 91

See, e.g., David Zaring, International Institutional Performance in Crisis, CJIL 10 (2010), 475, 477.

92

For details and references see Brouder (note 49), 101.

93

For an overview on the discussion see ibid., 104; Hajnal (note 49), 4 et seq.

94

Brouder (note 49), 101 et seq.; on the definition of an international organisation in terms of public international law see, e.g., Philippe Sands/Pierre Klein, Bowett’s Law of International Institutions (5th ed. 2001), 470 et seq.; Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, vol. I/2 (2nd ed. 2002), § 105.

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‘soft law’, the characterisation of the G20 as a ‘soft organisation’95 comes to mind. One might criticise this classification as not being very helpful, however it at least provokes discussion on the G20 not exclusively in political, but also in legal terms. A good place to start the legal analysis could be the concept of treaty in public international law,96 namely the broad perspective on the prerequisites as applied by the International Court of Justice (ICJ) in its decision on jurisdiction in Qatar v. Bahrain.97 Moreover, one should remember that in its Injury Opinion98 the ICJ based the concept of legal personality of an international organisation to a large extent on factual, sociological considerations. This is one of the bases for the much broader concept of international actors (participants), as developed e.g. by Rosalyn Higgins.99 Even though the concept of participants or actors has the inherent problem of allocation of responsibility, it at least helps to broaden the legal perspective on legally relevant actors in the international system. Therefore, it is similar to the network concept, which is already quite popular in international law.100 For these reasons, it seems most logical to argue in favour of a broad understanding of legal personality in public international law and to recognise that the factual influence an actor in the international system has is to some degree legally decisive. In this regard, legal personality does not necessarily go hand in hand with rights and duties; instead, legal personality can also mean exclusive duties in the international legal order.101 In sum, several arguments establish the international legal personality of the G20. In this regard, the G20 is actually a functional substitute of ECOSOC in light of its 95

See Jan Klabbers, International Ambivalence by Design: Soft Organizations in International Law, Nordic Journal of International Law 70 (2001), 403. 96

Id., The Concept of Treaty in International Law (1996).

97

ICJ, Maritime deliminiation and territorial questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, 112, paras. 21 et seq.; detailed Jan Klabbers, Qatar v. Bahrain: The Concept of ‘Treaty’ in International Law, AVR 33 (1995), 361. 98 ICJ, Reparation for Injuries Suffered in the Service of the UN, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174, 178. 99

Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), 49 et seq.; for further references see Nowrot (note 11), 570 footnote 2376. 100 101

See Anne-Marie Slaughter, A New World Order (2004), 16, 19, 54.

Alfred Verdross/Bruno Simma, Universelles Völkerrecht (3rd ed. 1984), § 375; Alfred Verdross, Völkerrecht (5th ed. 1964), 188 (“Eine Person kann durch das VR berechtigt und verpflichtet oder aber nur berechtigt oder bloß verpflichtet werden.”) (emphasis in original).

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original task as envisaged at Bretton Woods in 1944. In substantive terms the G20, as a subject of international law, is bound by considerations of international economic and social welfare as laid down in Articles 1 (3), 55 and 56 UN Charter.

IV. Elements of an International Financial Order Based on the foregoing considerations, it is possible to identify some basic elements of an international financial order, i.e. a legal order that goes beyond the rather descriptive characterisation of an international financial architecture. This, however, does not mean that such a coherent and comprehensive international financial order already exists. The current international financial system is fragmented and incomplete, as has been indicated. Moreover, it is obvious that, as the basic structure of the international financial architecture dates back to the 1990s, it was not capable of preventing the global financial crisis of 2007–2009102 and the European sovereign debt crisis of 2010/2011. This is a clear indication that the reform efforts given after September 2008 did not go far enough. One critical aspect in this regard is the still lacking regulatory link between trade, finance, sovereign debt and currency issues, even though some rather limited attempts to address the interface problem were made at the G20 meeting of finance ministers and central bank governors in Paris in February 2011103 and the spring meeting of IMF and World Bank in April 2011.104 Based on this rather disillusioning situation, some broader structural principles essential for a real international financial order shall be discussed.

102

Arner/Buckley (note 25), 37.

103

Meeting of Finance Ministers and Central Bank Governors, Paris, 18–19 February 2011, Communiqué, para. 3, available at : http://www.g20.org/Documents2011/02/COMMUNIQUE-G20_ MGM%20_18-19_February_2011.pdf (accessed on 19 November 2011). 104

IMF, G-20 Moves Forward to Tackle Global Imbalances, IMF Survey online, 16 April 2011, available at: http://www.imf.org/external/pubs/ft/survey/so/2011/NEW041611A.htm (accessed on 19 November 2011); G20 Communiqué, Meeting of Finance Ministers and Central bank Governors, Washington D.C., 14–15 April 2011, available at: http://www.g20.org/Documents2011/04/ G20%20Washington%2014-15%20April%202011%20-%20final%20communique.pdf (accessed on 19 November 2011).

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A. The ‘Order’ of International Finance

The element of ‘order’ as an essential element of any legal system has to be deduced from the fact that any economic and financial activity can be either a spontaneous activity by a natural or juridical person or an intervention of a national, supranational, or even international government.105 Most importantly, to determine the basic concept of ‘order’ is to make a value judgment on whether the individual activity or the governmental intervention is the rule or the exception. In this regard, the international financial order should be construed as the international economic order in general. Individual (free) activities on the international financial market(s) are the rule and only in exceptional circumstances, namely in situations of market failure where public goods are at stake, may a government intervene.106 The function of law must thus be to ensure that individual economic activities may take place, i.e. precisely as the WTO Panel once put it “to produce certain market conditions which would allow this individual activity to flourish.”107 The basic rationale of an international financial order is therefore to provide for the possibility that individual, spontaneous crossborder financial activities may take place.

B. Substantive Elements

1. International Financial Stability and Domestic Embeddedness of Financial Market Instruments Next to the general rationale of ‘order’, it is important to be clear on which normative basis the regulatory structure of the international financial order is to be based. Two aspects are crucial in this regard: first, financial stability as an essential element of any international financial order is a global public good.108 Second, one must take 105

Wolfgang Fikentscher, Wirtschaftsrecht, vol. I (1983), 4; Christian Tietje, Begriff, Geschichte und Grundlagen des Internationalen Wirtschaftssystems und Wirtschaftsrechts, in: id. (ed.), Internationales Wirtschaftsrecht (2009), § 1, para. 12. 106

Comprehensively Tietje (note 105), § 1, paras. 13 et seq.

107

WTO, United States – Sections 301–310 of the Trade Act of 1974, Panel Report of 22 December 1999, WT/DS152/R, para. 7.73. 108

Heribert Dieter, The Stability of International Financial Markets: A Global Public Good?, in: Stefan A. Schirm (ed.), New Rules for Global Markets – Public and Private Governance in the World

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note of the domestic embeddedness of financial market products. Financial market products are inherently linked to a specific domestic legal order; they are indeed the progeny of domestic jurisdiction. For instance an investor buying shares in a Luxemburg investment fund is trusting not only the issuer, but Luxemburg’s wellknown quality of legislation and administrative practices in the area of finance. This is a unique feature of financial market products. Unlike physical products and most services, financial market products always feature a particular jurisdiction. Thus they are products that are deeply rooted in one specific domestic legal order, on the one hand, and increasingly traded on global markets on the other. They are offered not only on their domestic market, but also on a worldwide basis, and in this sense they are ‘international’ or better – ‘transnational’. Therefore, one may speak of transnational financial products and markets by highlighting the above-described double character of products and markets as being both domestic and international.109 This unique feature of financial market products has consequences for any attempt at international regulation because there are inherent limitations due to the domestic embeddedness, which may also be characterised in terms of regulatory competition.110 Because of the domestic embeddedness of financial market products, in most instances regulation and supervision in this area aims not only at financial market stability, but is also influenced by many other considerations, including consumer protection, protection of creditors and the fiscal interests of the government.111 These regulatory aims are not necessarily connected to the character of financial market products as (global) public goods, but also based on purely political considerations.

Economy (2004), 23; Michel Camdessus, International Financial and Monetary Stability: A Global Public Good, in: Peter B. Kenen/Alexander K. Swoboda (eds.), Reforming the International Monetary and Financial System (2000), 9; Geoffrey R. D. Underhill, The Public Good versus Private Interests and the Global Financial and Monetary System, in: Daniel Drache (ed.), The Market or the Public Domain? Global Governance and the Asymmetry of Power (2001), 274. 109

Tietje/Lehmann (note 78), 668 et seq.; see also Rolf H. Weber, Multilayered Governance in International Financial Regulation and Supervision, JIEL 13 (2010), 683. 110 Tietje/Lehmann (note 78), 663 et seq.; similar Weber (note 109), 684: “International regulation and supervision is not ‘naturally superior’ to regional or national rules and supervisory practices or vice versa”; for details see also Joel P. Trachtman, The International Law of Financial Crisis: Spillovers, Subsidiarity, Fragmentation and Cooperation, JIEL 13 (2010), 719. 111

Luis Garicano/Rosa M. Lastra, Towards a New Architecture for Financial Stability: Seven Principles, JIEL 13 (2010), 597, 599.

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In sum, there are inherent limitations for comprehensive international harmonisation concerning financial market regulation and supervision. In addition, there are negative effects on the institutional structure and design of the international financial order. The international financial order will always be characterised by a certain element of decentralisation.

2. Integrating Macro and Micro Prudential Regulation and Supervision The structure of the international financial order is also determined by the fact that there is an increasing necessity to integrate approaches of macro and micro prudential regulation and supervision.112 Practical evidence for this increasingly accepted perspective is demonstrated in the 2011 restructuring of regulation and supervision of financial markets in the European Union (EU). The new EU system is based on three institutions focussing on micro economic risks and the European Systemic Risk Board (ESRB), which is responsible for the macro perspective.113 The international integration of macro and micro prudential regulation and supervision is not without legal problems. This derives from the notion that the mandate of the IMF is, in its original sense, limited to those issues of international finance that have an impact on the international currency system, namely with regard to balance of payments. Financial market stability in a broader sense is not part of the

112

For a definition see: House of Lords’ European Union Committee, The Future of EU Financial Regulation and Supervision, 14th Report of Session 2008–2009, 17 June 2009, paras. 27 et seq., available at: http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/106/106i.pdf (accessed on 3 December 2011): “Macro-prudential supervision is the analysis of trends and imbalances in the financial system and the detection of systemic risks that these trends may pose to financial institutions and the economy. The focus of macroprudential supervision is the safety of the financial and economic system as a whole, the prevention of systemic risk. Micro-prudential supervision is the day-to-day supervision of individual financial institutions. The focus of micro-prudential supervision is the safety and soundness of individual institutions as well as consumer protection. The same or a separate supervisor can carry out these two functions. If different supervisors carry out these functions they must work together to provide mechanisms to counteract macro-prudential risks at a micro-prudential level”. 113

For details see Matthias Lehmann/Cornelia Manger-Nestler, Die Vorschläge zur neuen Architek-tur der europäischen Finanzaufsicht, Europäische Zeitschrift für Wirtschaftsrecht 21 (2010), 87; id., Das neue Europäische Finanzaufsichtssystem, Zeitschrift für Bankrecht und Bankwirtschaft 13 (2011), 2.

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mandate of the IMF.114 Thus, even today the IMF is influenced by its historical construction.115 However, the IMF gradually moved its activities towards macro and micro economic surveillance of Member States’ financial markets, particularly after the Asia crisis in the 1990s. Most important in this regard has been the introduction of the Financial Sector Assessment Program (FSAP), together with the World Bank, and the Reports on the Observance of Standards and Codes (ROSCs) in 1999.116 However, these programmes and activities of the IMF have limits, such as voluntary participation for Member States, discretionary obligations to submit individual bank data (see Article VIII (5)(b) IMF Agreement) and restrictions on countries that allow FSAP and ROSCs. As a result the IMF currently does not have the formal capability to make an assessment of global financial stability; any such attempt would be outside the mandate of the Fund.117 As there seems to be no political willingness to amend the IMF Agreement in order to broker a broader mandate of the Fund, the only alternative is to set up an informal structure outside the IMF. The FSB mandate accomplishes this (Article 2 (1)(a) FSB Charter).118 As a result, the FSB may very well be defined as the fourth pillar of global economic governance – alongside the WTO, the IMF and the World Bank.119 However, it remains doubtful whether the FSB will actually be able to effectively fulfil its mandate, as any report or other result of the work of the FSB has to be accepted by the FSB Plenary by consensus (Article 7 (2) FSB Charter). As practice within the IMF demonstrates, States tend to be hesitant in adopting and

114

IMF, The Fund’s Mandate – The Legal Famework, 22 February 2010, available at: http://www. imf.org/external/np/pp/eng/2010/022210.pdf (accessed on 19 November 2011). 115

See supra, notes 19 et seq.

116

Kern Alexander/Rahul Dhumale/John Eatwell, Global Governance of Financial Systems – The International Regulation of Systemic Risk (2006), 259: “[…] marks a turning point in the Fund’s surveillance activities […]”. 117

For details on the mandate see IMF (note 79).

118

See supra, note 76.

119

See the different contributions in: Stephany Griffith-Jones/Eric Heilleiner/Ngaire Woods (eds.), The Financial Stability Board: An Effective Fourth Pillar of Global Economic Governance?, The Centre for International Governance Innovation, June 2008, available at: http://arts.uwaterloo.ca/~bmomani/ documents/FSBeditedspecialreport.pdf (accessed on 19 November 2011).

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publishing reports criticising their financial/economic system, especially in the lead up to domestic elections.120

3. Constitutional Perspective: Articles 1 (3), 55 and 56 UN Charter A constitutional roof that emanates from Articles 1 (3), 55 and 56 UN Charter tightly holds the aforementioned rather technical, institutional pillars of the international financial order together. According to these provisions, the UN itself and its Member States are obligated “[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character” and to promote “solutions of international economic, social, health, and related problems; and international cultural and educational cooperation.” These fundamental principles shaping the constitutional framework of the international economic order have their direct roots in those parts of the Atlantic Charter dealing with international economic cooperation.121 They are an important part of the overall concept of the international system as a value-oriented international legal order based on human right and social justice – the “supreme paradigm of peace as a legal order.”122 Referring to Articles 1 (3), 55 and 56 UN Charter does not necessarily give any answer on the specific role of the UN itself in the international financial order. Rather, the provisions are important for Member States because they indicate the legal responsibility of a State while engaging in efforts to build and maintain the international financial architecture. As in any other area of international relations, States and other international actors are not free in their actions; international politics are determined by international law, at least in the sense of some broad legal principles. The States themselves adhere to this, as indicated in the “Outcome of the Conference on the World Financial and Economic Crisis and Its Impact on Development,” adopted by consensus by General Assembly Resolution 63/303 of 9 July 2009. In this document, States declared as follows: 120 On this problem with regard to the IMF see Horst Siebert, Zur Reform des Internationalen Währungsfonds, Kieler Diskussionsbeiträge 438 (2007), 7. 121 Rüdiger Wolfrum, Art. 55, in: Bruno Simma (ed.), The Charter of the United Nations, vol. II (2nd ed. 2002), para. 3. 122

Jost Delbrück, Peaceful Change, in: Rüdiger Wolfrum (ed.), United Nations: Law, Policies and Practice, vol. II (1995), 970, 977.

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We reaffirm the purposes of the United Nations, as set forth in its Charter, including “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character” and “to be a centre for harmonizing the actions of nations in the attainment of these common ends.” The principles of the Charter are particularly relevant in addressing the current challenges. The United Nations, on the basis of its universal membership and legitimacy, is well positioned to participate in various reform processes aimed at improving and strengthening the effective functioning of the international financial system and architecture.123

The constitutional or principle-oriented perspective on international cooperation, also with regard to the international financial architecture, is important to keep in mind. Moreover, this perspective indicates that it is not sufficient, and maybe even wrong, to analyse the international financial system as a network or network of networks exclusively from the perspective of GAL.124 GAL might be interesting in order to understand the functioning of certain international financial institutions and organisations. However, as GAL essentially ignores public international law, it is not in a position to actually contribute to the debate on a comprehensive international financial order. Moreover, as the role of G20 as a gubernative institution during the crisis of 2007–2009 demonstrated, global economic governance is more than just technical/administrative networks.125

C. Element of the Institutional Structure of the International Financial Order

The institutional design of the international financial order has to follow the constitutional values of the UN Charter. For example, it has to be based on the general obligation of international cooperation aiming at the achievement of economic and social welfare. This obligation is supported by the insight that international financial stability is a global public good and that financial market products are always domestically embedded. Hence, it is obvious that the institutional structure of the international financial order has to be decentralised and cannot achieve full harmonisation. Regula123

GA Res. 63/303 of 13 July 2009, Annex, para. 2; on the vote see UN Doc. A/63/PV.95 (2009), 3.

124

For such an approach see, e.g., Maurizia De Bellis, Global Standards for Domestic Financial Regulations: Concourse, Competition and Mutual Reinforcement between Different Types of Global Administration, Global Jurist Advances 6 (2006), available at: http://www.bepress.com/gj/advances/ vol6/iss3/art6 (accessed on 19 November 2011). 125

Zaring (note 44), 500.

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tion and supervision of financial markets will accordingly always be characterised by the coexistence of international, regional and domestic regulatory efforts.126 This feature of any international financial system is one of the reasons why efforts towards creating a more centralised system of financial regulation and supervision in the EU have been so difficult.

1. Integration of Real Economy, Financial Markets and Sovereign Debts As already indicated, the multilayered system of an international financial order not only has a vertical, but also a horizontal dimension. This horizontal dimension is concerned with the integration of the real economy (trade in goods and services), financial markets and sovereign debts as an important, if not the most important, challenge facing the international financial architecture. Even though the crisis of 2007–2009 and the European sovereign debt crisis of 2011 are prime examples for the factual interdependence of the international economy, there are hardly any efforts to modify the international financial architecture accordingly. A first and necessary step in this direction would be to intensify the cooperation of the IMF, World Bank, WTO and FSB as the four pillars of global economic governance. This, however, requires that the members of the respective organisations grant sufficient autonomy to the executive organs of the organisations. This is problematic, particularly with regard to the WTO as an ostensibly ‘member driven’ organisation;127 the WTO Secretariat not even being an organ of the organisation. As long as the members are unwilling to change their attitude towards giving more autonomy to the executive organs of international economic organisations, a closer cooperation of these organisations, which is needed to achieve greater coherence in international economic governance, is impossible. Moreover, it must be emphasised that the problem of sovereign debts has to be integrated into the broader framework of the international financial order. Without finding adequate regulatory answers to the increasing interdependence of sovereign debts on the one side and international financial markets on the other, the lack of 126 127

Weber (note 109), 683 et seq.; Tietje/Lehmann (note 78), 663 et seq.

John H. Jackson, The WTO ‘Constitution’ and Proposed Reforms: Seven ‘Mantras’ Revisited, JIEL 4 (2001), 67.

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coherence in the system will perpetuate.128 This is clearly evident in the Greek sovereign debt crisis of 2011 and its repercussions on the international financial markets.

2. Coordination and Cooperation Alongside the necessity for a more integrated approach, coordination and cooperation in a multi-layered system presents a major challenge for the international economic and financial order. The international financial system is represented by a multitude of different domestic, regional and international actors, as well as steering instruments. This causes distinct challenges for coordination and cooperation, and these have not been addressed in spite of the well-established basic obligation for inter-institutional cooperation based on Article 56 UN Charter.129 Legally however, this duty to cooperate only addresses the subject of public international law, i.e. in this context States and international organisations. It is more complicated to establish a legal obligation to coordinate and cooperate with regard to the numerous private and intermediate actors evident in the international financial system, as they do not have (international) legal personality. The system has adopted a pragmatic approach to solve this problem. The FSB has been entrusted with a comprehensive mandate “to promote coordination and information exchange among authorities responsible for financial stability.”130 However, it is questionable whether the FSB is able to effectively fulfil this mandate because it is lacking political authority and, in analogy with the British Crown, has the simple function “to advise, encourage and to warn.”131 It has been known for quite some time that the Executive Committee of the IMF experiences a similar problem.132 128 See, e.g., Ross P. Buckley, The Bankruptcy of Nations: An Idea Whose Time Has Come, International Lawyer 43 (2009), 1189. 129

For details see Tietje (note 60), 501 et seq.; id., The Duty to Cooperate in International Economic Law and Related Areas, in: Jost Delbrück (ed.), International Law of Cooperation and State Sovereignty (2002), 45. 130

Art. 2 (1)(b) FSB Charter.

131

Douglas W. Arner/Michael Taylor, The Global Financial Crisis and the Financial Stability Board: Hardening the Soft Law of International Financial Regulation?, AIIFL Working Paper 6 (2009), 11, available at: http://www.law.hku.hk/aiifl/documents/AIIFLWorkingPaper6June2009_000.pdf (accessed on 3 December 2011). 132 Wolfgang Bergthaler/Wouter Bossu, Recent Legal Developments in the International Monetary Fund, EYIEL 1 (2010), 391, 402 et seq.

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3. Gubernative Based on the above, it is clear that the essential challenges presenting themselves to an international financial order call for more than merely technical administrative structures. In addition to what has already been outlined, an effective and efficient gubernative structure is necessary within the international financial architecture. As indicated, the G20 seems to represent this function, at least from its own perspective. However, it is questionable whether the G20 is well suited to ensure the stability and effective decision making essential for an institution responsible for political leadership. This is less a problem of legitimacy of the G20 itself, as the G20 “represent[s] around 90 per cent of global gross national product, 80 per cent of world trade (including EU intra-trade) as well as two-thirds of the world’s population.”133 Instead, the lack of institutional structure, a probable cause of the rather negative compliance record of the G20, is problematic. Even the G7/G8 had already had severe compliance problems.134 It is not surprising that some G20 Member States have called for more institutional structure with the establishment of a secretariat.135 In addition to the internal structure of G20, a further major problem is caused by the exclusion of the United Nations from international financial governance structures. As already indicated several times, the original initiative was to establish the ECOSOC as ‘the’ gubernative institution in international economic/financial governance. This concept was aligned with the overall notion of the role of the United Nations in the international system, generally and with a structure of international economic governance more specifically as already developed in the famous Bruce Report of 22 August 1939.136 It is important to note that from this historical perspective no strict separation of ‘political’ (gubernative) and technical administrative issues was planned; a rather more integrated approach based on differentiations according to concrete task was foreseen. This approach flows through to the United Nations and the specific function(s) of ECOSOC in global economic governance. 133 See G20, About G-20, available at: http://www.g20.org/about_what_is_g20.aspx (accessed on 19 November 2011). 134

For a discussion of the complicance issue see Brouder (note 49), 113.

135

The Chosunilbo, Who Would Host a G20 Secretariat?, 15 November 2010, available at: http://english.chosun.com/site/data/html_dir/2010/11/15/2010111500563.html (accessed on 19 November 2011). 136

For details see Klaus Dicke, Effizienz und Effektivität internationaler Organisationen (1994), 71 et seq.

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Today there is little evidence of the original concepts of a global economic governance structure, particularly regarding horizontal and vertical integration of trade, finance, investment and sovereign debts. Even though the G20 has a certain, to some degree successful, role in political leadership and developed its concrete ideas on “Reinforcing International Cooperation and Promoting Integrity in Financial Markets” in March 2009,137 it lacks necessary infrastructure. Such an institutional infrastructure is essential to the effective coordination of and guidance over the activities of numerous governmental and non-governmental organisations. Unlike the G20, organisations such as the IMF and the FSB certainly have the resources and the infrastructure to fulfil such a task; however, they lack the political authority necessary in a complex multi-layered international financial system. The problem of having an insufficient gubernative in the structure of global economic governance, if one even exists, was recognised and addressed in the Stiglitz Commission’s report to the president of the UN General Assembly of 21 September 2009: “[o]n Reforms of the International Monetary and Financial System.” The Commission proposed the establishment of a Global Economic Coordination Council supplemented by a panel of experts.138 According to the Commission, the main function of the new Coordination Council would be to take up the role of a real political leadership over the Bretton Woods organisations – including the WTO, which is not part of the UN system. This proposal aims at replacing or at least reactivating the originally proposed functions of ECOSOC. This may indicate that the Stiglitz Commission has circumvented the decades-long impossible task of reforming ECOSOC.139

137

G20 Working Group on Reinforcing International Cooperation and Promoting Integrity in Financial Markets , Final Report, 27 March 2009, available at: http://www.minefe.gouv.fr/directions_ services/dgtpe/international/g20/090403gr2_en.pdf (accessed on 19 November 2011). 138 Report of the Commission of Experts of the President of the United Nations General Assembly on Reforms of the International Monetary and Financial System, 21 September 21, 2009, available at: http://www.un.org/ga/econcrisissummit/docs/FinalReport_CoE.pdf (accessed on 19 November 2011); for a discussion see, e.g., Frank Schröder/Jürgen Stetten, Mythos Weltwirtschaftsrat, Vereinte Nationen 58, 2010, 104 et seq. 139

Thomas G. Weiss, ECOSOC is Dead – Long Live ECOSOC, Perspective – Friedrich Ebert Stiftung New York, December 2010, available at: http://library.fes.de/pdf-files/bueros/usa/07709.pdf (accessed on 19 November 2011); Gert Rosenthal, The Economic and Social Council of the United Nations – An Issue Paper, Dialogue on Globalization Occasional Papers 15, February 2005, available at: http://library.fes.de/pdf-files/iez/global/50091.pdf (accessed on 3 December 2011).

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The main problem with the proposal of the Stiglitz Commission is that it has little chance of being accepted. Thus, for the time being, it has to be accepted that the only gubernative structure within the current system of global economic governance is the G20.140 It does clearly indicate, however, that public international law and international legal scholarship needs to cultivate interest within the international system for the realisation of a proper gubernative structure.

V. Outlook In conclusion it seems there is no reason to be too optimistic. Even though the financial crisis of 2007–2009 has, on the basis of earlier efforts in the 1990s, produced a more coherent and to some extent well-functioning international financial architecture, it seems to be too early to acknowledge a comprehensive international financial order. This is mainly due to the continued lack of integration of trade, finance, investment and sovereign debts. Furthermore, the current international financial architecture remains, at least to some degree, fragmented. The system, as it stands today, is certainly able to solve single problems occurring on the international financial markets, but is not equipped to prevent a new systemic global crisis. This is particularly the case with regard to sovereign debts crises of systemic importance, such as the one currently in Greece and other European countries. Thus, one may say that, in terms of ‘architecture’, the house is not yet statically secured on substantial foundations and may collapse any time. In order to overcome this problem, many changes are necessary. Public international law and international legal scholarship will only be able to contribute to these challenges if a broad evaluation based on fundamental values as laid down in the UN Charter is taken by relevant actors, combining both gubernative and technical-administrative structures.

140

See also Report of the Secretary-General, Global economic governance and development, UN Doc. A/66/506 (2011).

The European Stability Mechanism: The Long Road to Financial Stability in the Euro Area CHRISTOPH OHLER(

ABSTRACT: On 11 July 2011, the Member States of the euro area agreed on a new international Treaty establishing the European Stability Mechanism (ESM). The ESM is the centrepiece of the European strategy in the fight against the sovereign debt crisis from which several countries of the euro area have been suffering since early 2010. Born under the strong pressure by financial markets to create a lasting rescue system for ailing euro States– and accompanied by some political frustration in the Member States over the power exercised by the markets – the new institution will be a basic version of a European Monetary Fund. Once established it will replace the existing ‘European Financial Stability Facility’ that was conceived as a temporary institution with a mandate ending in June 2013. As a permanently operating institution the ESM will complement the design of the European Monetary Union without being an organ or an institution of the EU in a formal sense. The ESM Treaty which requires parliamentary approval in the participating Member States is expected to enter into force prior to June 2013. KEYWORDS: debt-crisis, financial crisis, European Stability Mechanism (ESM), financial stability, private sector involvement, state insolvency, financial assistance, conditionality

I. The Debt Crisis in the Euro Area A. Political and Economic Background

The Treaty on the Establishment of the European Stability Mechanism of 11 July 2011 (ESM Treaty)1 was drafted in difficult economic times and the rationale for setting up this new institution could hardly have been more complicated. Politically, it was born under the pressure of the sovereign debt crisis in Europe and hence it (

The author holds the chair of Public Law, European Law, Public International Law and International Economic Law at the Friedrich-Schiller-University, Jena, Germany. 1

Document available at: http://www.efsf.europa.eu/attachments/esm_treaty_en.pdf and http:// consilium.europa.eu/media/1216793/esm%20treaty%20en.pdf (both accessed on 23 August 2011).

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represents, at least indirectly, a subsequent effect of the financial crisis that hit the world in 2008 and 2009. The financial crisis particularly strained the budgets of those States with deeply rooted structural deficits and minor competitiveness of their economies. Its fiscal effects were directly reflected in the growth of public indebtedness during the financial crisis. Between 2007 and 2011, the debt to Gross Domestic Product (GDP) ratio rose by 22 % on average in all Member States of the euro area.2 In Ireland it rose by 62 %, in Greece by 38 %, in Spain by 36 % and in Portugal by 27 %, compared to an increase of 16 % in Germany and 13 % in Austria respectively. The absolute debt ratio of several euro-countries reached more than 100 % of annual GDP (Belgium 101 %, Greece 133 % and Italy 119 %).3 Effectively, only four countries of the euro area (Luxembourg, Finland, Slovenia and Slovakia) remained under the 60 % threshold set by Article 126 Treaty on the Functioning of the European Union (TFEU).4 Corresponding to that development, the uncertainty about the creditworthiness of those highly indebted countries grew considerably on the financial markets, which resulted in phases of strong nervousness in the course of the years 2010 and 2011. In particular, the European Central Bank (ECB) feared that the overall nervousness could result in a broad loss of confidence in financial markets and eventually lead to another market crisis with all the negative effects apparent during the financial crisis of 2008/2009.5 Under this policy stance it decided to take extraordinary monetary measures, including the Securities Markets Programme, under which it systematically bought securities of the weaker Member States.6 Another emergency measure was to temporarily reduce its requirements for the eligibility of marketable debt instruments issued by the Greek government.7 The ECB finally persuaded the Member States of the euro area to establish a crisis mechanism in May 2010 that resulted in the incorporation of the European Financial Stability Facility (EFSF), the predecessor of the

2

European Commission, Public Finances in EMU – 2010, European Economy 4/2010, 16.

3

Ibid.

4

Art. 126 (2)(b) TFEU (9 May 2008, OJ 2008 C 115, 47) refers to the Protocol (No. 12) on the Excessive Deficit Procedure which provides in Art. 1 this debt/GDP ratio, OJ 2010 C 83, 279. 5

ECB, Monthly Bulletin, May 2010, 7 et seq.; id., Monthly Bulletin, June 2010, 36 et seq.

6

Decision of the European Central Bank of 14 May 2010, ECB/2010/5, OJ 2010 L 124, 8.

7

Decision of the European Central Bank of 6 May 2010, ECB/2010/3, OJ 2010 L 117, 102.

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ESM.8 The rationale behind that division of responsibilities between ECB and Member States was that the role and the powers of the ECB are limited under Article 123 TFEU. This provision prohibits the ECB from directly financing a Member State’s budget but instead permits the purchase of government securities on the secondary market for monetary purposes.9 Therefore, the measures taken by the ECB aim at the stabilisation of financial markets merely in order to make sure that the regular monetary policy remains effective.10 Even though this decision was strongly contested,11 it refers at least to the generally acknowledged assumption that the transmission of monetary policy measures taken by the central bank requires well functioning financial markets that are able to implement them effectively.12 Preventing the malfunction of financial markets is also a task conferred on the ECB by Article 127 (5) TFEU. The problem with this emergency policy is that it produces side effects which go contrary to the intention of Article 123 TFEU and threaten the credibility of the ECB since the massive acquisition of sovereign debt securities makes the ECB one of the major creditors of those States. It is against this background that any direct financial assistance had to respect strictly the line drawn by Article 123 TFEU. It meant that only the Member States – via a newly incorporated entity, the EFSF – could provide budgetary relief to financially distressed countries of the euro area, subject however to the limitations set by the no-bail-out-clause of Article 125 TFEU.

8

Jean-Claude Trichet, Speech in Frankfurt am Main on 9 July 2010: “The third area of institutional reform will be a crisis management framework. This framework has to respect strict conditionality and minimise moral hazard.” Available at: http://www.ecb.europa.eu/press/key/date/2010/html/sp100709. en.html (accessed on 23 August 2011). 9 On the admissibility of secondary market operations see Ulrich Häde, Art. 123 AEUV, in: Christian Calliess/Matthias Ruffert (eds.), EUV/AEUV (4th ed. 2011), para. 10. 10

ECB, Monthly Bulletin, May 2010, 7 et seq.; id., Financial Stability Review, June 2010, 73.

11

Martin Seidel, Gastkommentar, Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 21 (2010), 521; pro ECB the contribution by Christoph Herrmann, EZB-Programm für die Kapitalmärkte verstößt nicht gegen die Verträge, EuZW 21 (2010), 645. 12 On the relevance of market instruments for central banks see René Smits, The European Central Bank (1997), 226, 264. On the relationship between the objectives of monetary stability and financial stability see Francois Gianviti, The Objectives of Central Banks, in: Mario Giovanoli/Diego Devos (eds.), International Monetary and Financial Law – The Global Crisis (2010), 449, 480.

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B. Legal Uncertainties of a Debt Restructuring

There is general consent that the debt crisis in Europe has deep structural roots. Flawed budgetary policies of many Member States could persist for years and were finally revealed in 2009 and 2010. On this basis, the political and legal controversies centre on the question to what extent those Member States are mainly responsible for their budgetary problems13 and which lessons should be drawn from that fact.14 Therefore, strict opponents of the financial assistance packages advocate not intervening and thus allowing Greece and other countries in distress to default on all or parts of their debt.15 From the perspective of a market economy this would be a normal event and, historically, would add just another sovereign default to a long row of similar events.16 Accepting the homemade causes of the crisis does not necessarily mean, however, to exclude any form of financial assistance if the assumption is correct that the costs of non-intervention could be at least as high as the costs actually incurred by providing support.17

1. Lack of Stable and Predictable Rules The reasons for the European Union and its Member States deciding not to allow the default of Greece and other countries to happen can be found in the peculiarities of modern monetary policy and in the imponderabilities of highly networked finan13

This has been particularly discussed in the context of Art. 122 (2) TFEU, cf. Ulrich Häde, Die europäische Währungsunion in der internationalen Finanzkrise – An den Grenzen europäischer Solidarität, Europarecht (EuR) 45 (2010), 854, 857; Jean-Victor Louis, Guest Editorial, Common Market Law Review (CMLRev) 47 (2010), 971, 981; Martin Seidel, Aktuelle Probleme der Währungsunion, integration 33 (2010), 334, 346; Joachim Wieland, Der Rettungsschirm für Irland, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 30 (2011), 340, 341. 14

At least there is consensus that a State may not invoke under general international law the state of necessity if it contributed to the situation of necessity, cf. Art. 25 (2) ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 59 et seq. With respect to the Argentine debt crisis see Federal Constitutional Court, BVerfGE 118, 124, 136. 15 Wissenschaftlicher Beirat beim Bundesministerium für Wirtschaft, Überschuldung und Staatsinsolvenz in der Europäischen Union (2011), 18 et seq. 16

Cf. Carmen Reinhart/Kenneth Rogoff, This Time is Different – Eight Centuries of Financial Folly (2009). 17

Louis (note 13), 980.

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cial markets.18 Lacunae in international law also contribute to that analysis – insofar as general international law does not offer clear-cut rules as to how to proceed in an orderly manner once the private creditors of a sovereign State realise that their debtor is insolvent.19 In practice, most States still consider the legal status of their budget – including its restructuring – to be a primarily domestic affair20 even if they are heavily indebted towards international creditors.21 This means that the absence of internationally recognised rules for the reorganisation of a public debt increases the degree of economic instability existing in times of crisis.22 With a view to the euro area, the amount of sovereign debt securities on the market and the interdependence between markets, monetary policy and fiscal policy make State insolvencies much more complicated and risk-prone than similar events in the late 1990s in East-Asia, Eastern Europe or Argentina.23

2. Risks of Voluntary Arrangements This is even true for the various political proposals for a voluntary restructuring of sovereign debt along the lines of the former Brady initiative.24 The idea discussed in the wake of the Greek debt crisis was to offer a debt swap between existing securities 18

That was generally recognised by Federal Constitutional Court, BVerfGE 126, 158, 168 et seq.

19

Id., BVerfGE 118, 124, 135; Lee Buchheit, A Quarter Century of Sovereign Debt Management: An Overview, Georgetown Journal of International Law 35 (2003–2004), 637, 638; Jörn Axel Kämmerer, State Bankruptcy, MPEPIL, para. 6, available at: http://www.mpepil.com (accessed on 6 September 2011). For an obligation to negotiate bona fide cf. Alexander Szodruch, Staateninsolvenz und private Gläubiger (2008), 157 et seq.; Michael Bothe/Josef Brink, Public Debt Restructuring, the Case for International Economic Co-operation, German Yearbook of International Law (GYIL) 29 (1986), 86, 107. 20

Mechele Dickerson, A politically viable approach to sovereign debt restructuring, Emory Law Journal 53 (2004), 997, 999. 21

In the euro area, on average 53 % of total government debt is held by non-residents (including residents of other EU countries), ECB, Monthly Bulletin, May 2010, 31. 22 Cf. Christian Tietje, Architektur der Weltfinanzordnung, Beiträge zum Transnationalen Wirtschaftsrecht, 109 (2011), 19. 23 For an overview see Christian Walter, Debt Crisis, MPEPIL, paras. 7 et seq., available at: http:// www.mpepil.com (accessed on 6 September 2011). 24

Cf. Andreas Lowenfeld, International Economic Law (2nd ed. 2008), 683 et seq.; Walter (note 23), para. 10.

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and newly issued bonds with a lower nominal value and a longer maturity. For the existing creditors accepting this swap would have resulted in a considerable nominal loss whereas the debt burden for Greece would be lowered accordingly. Structurally, it would have permitted a ‘private sector involvement’, i.e. a financial burden sharing between investors and debtor to avoid a full breakdown of the debtor. It reflects the natural fact that any investment involves risks which eventually the investor must bear when its debtor goes bust. Rating agencies, most market participants and the ECB, however, also considered a voluntary restructuring as a technical default by the debtor which would lead to a down-rating of the State.25 This default could trigger socalled ‘credit events’ under credit default swaps, i.e. bilateral risk transfer agreements, which would bring the ‘protection sellers’, mostly internationally operating investment banks, into massive trouble. In addition, the ECB considered itself unable to accept the debt securities of States in default as adequate collateral for its credit operations under Article 18 (1) ESCB Statute.26 These effects, the ECB feared, could destabilise financial markets further – instead of calming down the situation – and provide the ground for additional contagion effects.27 From a legal point of view, the assumption of the ECB is covered by its margin of discretion28 under its monetary policy function pursuant to Article 127 TFEU – whereas the corresponding appreciation by the rating agencies is protected by their freedom of expression. The question remains whether an orderly restructuring of sovereign debt is possible at all, i.e. at reasonable cost, taking into account the conditions of monetary policy and heavily interwoven financial markets.29 As long as a satisfactory restructuring mechanism is lacking, States are systemically important debtors, the default of whom could trigger further systemic risks. The problem is now that the establishment of a financial assistance mechanism does not fully reduce those risks. On the contrary, it can contribute to the rise of new risks when it creates moral hazard for all sovereign 25 Lorenzo Bini Smaghi (Member of the Executive Board of the ECB), Speech at the Reinventing Bretton Woods Committee, Berlin, 6 June 2011, available at: http://www.ecb.int/press/key/date/ 2011/html/sp110606.en.html (accessed on 23 August 2011). 26

Protocol (No. 4) on the Statute of the European System of Central Banks and of the European Central Bank, 30 March 2010, OJ 2010 C 83, 230. 27

Bini Smaghi (note 25); ECB, Monthly Bulletin, July 2011, 71, 73.

28

Also the organs of the EU Member States enjoy a corresponding discretion, cf. Federal Constitutional Court, BVerfGE 126, 158, 169, with respect to the German federal government. 29

Rosa Lastra, Legal Foundations of International Monetary Stability (2006), 475.

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debtors and their creditors who expect the debtor to be bailed out.30 Neither European law nor international law offers completely satisfying answers to that problem – other than a strict policy of conditionality. These uncertainties culminated in the attempt to arrange for a partial and limited restructuring of the sovereign debt of Greece in July 2011, the results of which were unclear at the time of writing this essay. The Heads of State or Government of the euro area declared in their statement of 21 July 2011: as far as our general approach to private sector involvement in the euro area is concerned, we would like to make it clear that Greece requires an exceptional and unique solution. All other euro countries solemnly reaffirm their inflexible determination to honour fully their own individual sovereign signature and all their commitments to sustainable fiscal conditions and structural reforms. The euro area Heads of State or Government fully support this determination as the credibility of all their sovereign signatures is a decisive element for ensuring financial stability in the euro area as a whole.31

C. Illiquid and Insolvent Countries

A main line of economic reasoning dealing with sovereign debt crises relies on the distinction between illiquid and insolvent countries.32 The dichotomy can build on the maturity (short term/long term) of the debt incurred33 or, more precisely, refer to the ability of the State to raise the necessary financial means to meet its short and long term obligations.34 It was also considered to compare the debts and the assets of a country to analyse its solvency.35 For a realistic analysis this would require that the assets can be disposed of freely by the State, are actually marketable and can be prized at their true value. Bearing those provisos in mind it is extremely difficult to distin30

ECB, Opinion of 17 March 2011, OJ 2011 C 140, 8, para. 7; Francois Gianviti, The Reform of the International Monetary Fund (Conditionality and Surveillance), in: Rosa Lastra (ed.), The Reform of the International Financial Architecture (2001), 94, 101. 31 Statement of 21 July 2011, paras. 6, 7, available at: http://www.consilium.europa.eu/uedocs/cms_ data/docs/pressdata/en/ec/123978.pdf (accessed on 26 August 2011). 32

Paolo Manasse/Nouriel Roubini/Axel Schimmelpfennig, Predicting Sovereign Debt Crises (2003), International Monetary Fund (IMF) Working Paper WP/03/221, 4 et seq. 33 In this sense Paolo Manasse/Nouriel Roubini, ‘Rules of Thumb’ for Sovereign Debt Crises (2005), IMF Working Paper WP/05/42, 7 passim. 34

ECB, Monthly Bulletin, April 2011, 66.

35

Bini Smaghi (note 25).

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guish illiquidity from insolvency.36 Rather, both analytical concepts seem to go hand in hand37 as long as a State funds its current budget deficit and rolls over its existing debt by the issue of bonds on the financial markets. In this case, its ability to raise the necessary means depends mainly on the general trust of the market investors in its creditworthiness. For an investor, creditworthiness means the ability and willingness of the debtor to serve its debt (capital and interest) in full once it is due.38 Thus, sovereign debtors are peculiar since, in the words of a rating agency, they “have unique powers, such as the ability to raise taxes, set laws, and control the supply of money, which generally make them more creditworthy than other issuers with less authority.”39 Apart from that authority, the economic ability of a State will be assessed by a broad variety of figures, e.g. the GDP/debt ratio, the GDP/annual deficit ratio, the development of its primary budget deficit (budgetary income minus budgetary expenditures without interest payments) etc. Yet sovereign debt crises exemplify that creditworthiness does not depend on simple figures but on how they are interpreted in the light of further circumstances. Quantitative criteria mirror only certain parts of a more complex phenomenon which is deeply rooted in the political, social and economic conditions of a particular country.40 Hence, the economic discussion relies additionally on the broader but vague concept of whether a debt is sustainable or not.41 These complexities may be one of the reasons why in the context of monetary policy the liquidity analysis refers mainly to the markets where government bonds are traded. The ECB, for example, argues that its emergency measures aim exclusively at preventing illiquidity on the markets for sovereign debt securities of the euro area countries.42 Undoubtedly, it is possible to monitor the liquidity of primary and 36

Lastra (note 29), 474.

37

ECB, Monthly Bulletin, April 2011, 66.

38

Standard & Poor’s, Sovereign Government Rating Methodology and Assumptions, 30 June 2011, para. 4, available at: http://www2.standardandpoors.com/spf/pdf/japanArticles/1204866805563.pdf (accessed on 6 September 2011). 39

Ibid., para. 19.

40

Cf. id., General Criteria, Principles of Credit Ratings, 16 February 2011,para. 30, available at: http://www2.standardandpoors.com/spf/pdf/japanArticles/GeneralCriteriaPrinciplesOfCreditRatings. pdf (accessed on 6 September 2011); id. (note 38), paras. 36 et seq. 41

ECB, Monthly Bulletin, April 2011, 61 et seq.; from a legal perspective see Wolfgang Kahl (ed.), Nachhaltige Finanzstrukturen im Bundesstaat (2011). 42

See supra, note 10.

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secondary markets for all kinds of bonds and other financial instruments. Both markets are relevant for the State debtor: the primary market for new bond issues, the secondary market for an assessment of the creditworthiness of the debtor via the prices paid for bonds already issued. With a view to maintain financial stability, the illiquidity of these markets may turn out to be as dangerous as the unsustainability of a public debt. Both phenomena are closely linked to each other and both require political and legal answers.

II. The Predecessor: The EFSF It was against this economic and legal background that the Member States of the euro area agreed on 25 March 2010 to provide a package of bilateral loans to Greece.43 As market tensions did not disappear and even reached the bond markets for other Member States, in particular Ireland, the Member States of the euro area decided to establish a broader set of emergency measures during the weekend of 7/8 May 2010. Its main element is a special purpose vehicle, the European Financial Stability Facility (EFSF), the purpose of which is to offer financial assistance to distressed countries of the euro area. The EFSF was incorporated in Luxembourg as a societé anonyme, i.e. a company governed by the private law of Luxembourg.44 The choice of private law instead of public international law demonstrates that States enjoy considerable discretion under international law as to which legal order they want to make use of in financial and economic matters.45 Even if the statutes of most international financial institutions are governed by public international law (e.g. the IMF or the World Bank) there is no stringent requirement in international law that this must be the case under all circumstances. The most notable example for that form of discretion is the Bank for International Settlement (BIS) in Basel that was incorporated in 1930

43 Statement by the Heads of State and Government of the Euro Area of 25 March 2011, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/113563.pdf (accessed on 23 August 2011). On the factual background of the loans see also Federal Constitutional Court, BVerfGE 125, 385, 386. 44 EFSF Articles of Incorporation of 7 June 2010, available at: http://www.efsf.europa.eu/ attachments/efsf_articles_of_incorporation_en.pdf (accessed on 23 August 2011). 45

Cf. Philipp Dann/Michael Riegner, Foreign Aid Agreements, MPEPIL, para. 12, available at: http://www.mpepil.com (accessed on 6 September 2011).

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as a Swiss company limited by shares.46 At the same time it was also recognised as an international organisation under public international law.47 In the case of the EFSF, the operation of the institution is regulated by a Framework Agreement of 7 June 2010 between the EFSF and the euro area Member States which is governed by English law.48 The reasons for establishing and operating the EFSF as a private company are not completely comprehensible. Practicality and time constraints are probably the best answers to why this structure was chosen, since the Member States may have feared that negotiating and ratifying an international treaty would be too timeconsuming under the circumstances of the massive market pressure in May 2010. Under the Framework Agreement, the euro area Member States entered into guarantee commitments for the benefit of bond issues to be undertaken by the EFSF. These guarantees, the total amount of which is fixed according to the Member States’ share in the paid-up capital of the European Central Bank and totals initially € 440 billion, form the basis for an investor grade rating of the EFSF. On the basis of those ratings the EFSF may issue bonds at low costs and thereby raise the necessary means to extend loans or loan facilities to financially distressed Member States. Originally, the EFSF was thought to be able to refund itself up to the maximum amount of € 440 billion that is guaranteed by the Member States. The effective lending capacity is, however, considerably lower, since the bonds issued by the EFSF are over-guaranteed by 120 %. In addition, the EFSF is urged to retain cash reserves and loan specific cash buffers in order to maintain its excellent rating. Besides the financial assistance offered through the EFSF, the Member States agreed on a second element within their emergency package. This is a regulation adopted under Article 122 (2) TFEU establishing a European Financial Stabilisation Mechanism (EFSM).49 Legally, the EFSM is a programme of the European Union which empowers the European Commission to issue debt securities on behalf of the European Union and thereby raise an additional amount of up to € 60 billion for lending operations to distressed euro area countries. In addition to these European 46

See Marc Jacob, Bank for International Settlements, MPEPIL, para. 6, available at: http://www. mpepil.com (accessed on 6 September 2011). 47 Hague Convention respecting the Bank for International Settlements, 20 January 1930, LNTS 104, 441. 48 EFSF Framework Agreement of 7 June 2010, available at: http://www.efsf.europa.eu/ attachments/efsf_framework_agreement_en.pdf (accessed on 23 August 2011). 49

EU Regulation 407/2010 of 11 May 2010, OJ 2010 L 118, 1.

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measures, the IMF provides funds, subject to the requirements of the Articles of Agreement of the IMF.50

III. The ESM as an International Institution under European Law The tenure of the EFSF’s regular operation is limited to 30 June 2013 in order to make clear that any financial assistance offered will be of temporary nature only. Already in December 2010, when the EFSF had not even issued bonds of its own or provided any loans to Member States, most market participants and political observers urged for a permanent rescue mechanism. At the same time massive legal pressure in the Member States was underway, based on the argument the financial assistance offered through the EFSF would openly violate the no-bail-out-clause of Article 125 TFEU.51 On 17 December 2010, the European Council accepted that a new European Stability Mechanism (ESM) should be introduced that will replace the EFSF and the European Financial Stabilisation Mechanism under Article 122 (2) TFEU.52 For this purpose, two legal measures were agreed upon in principle, namely an amendment of the TFEU and an international treaty establishing the ESM. With respect to European Union law, Article 136 TFEU should be amended by a new paragraph 3 that would form the legal basis for the permanent emergency mechanism.53 The new treaty provision will read: The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting 50 Articles of Agreement of the International Monetary Fund, 22 July 1944, UNTS 2, 39. Cf. Charlotte Gaitanides, Intervention des IWF in der Eurozone – mandatswidrig?, NVwZ 30 (2011), 848, with a critical assessment. 51 Hanno Kube/Ekkehart Reimer, Grenzen des Europäischen Stabilisierungsmechanismus, Neue Juristische Wochenschrift (NJW) 63 (2010), 1911, 1912; Matthias Ruffert, Der rechtliche Rahmen für die gegenseitige Nothilfe innerhalb des Euro-Raums, 54. Bitburger Gespräche (2011, forthcoming). Pro legality of the measures: Christian Calliess, Perspektiven des Euro zwischen Solidarität und Recht – Eine rechtliche Analyse der Griechenlandhilfe und des Rettungsschirms, Zeitschrift für Europarechtliche Studien (ZEuS) 14 (2011), 213, 268; Christoph Herrmann, Griechische Tragödie – der währungsverfassungsrechtliche Rahmen für die Rettung, den Austritt oder den Ausschluss von überschuldeten Staaten aus der Eurozone, EuZW 21 (2010), 413, 415; Martin Nettesheim, Finanzkrise, Staatshilfen und bail-out-Verbot, EuR 22 (2011, forthcoming); Louis (note 13), 985. 52

European Council, 16–17 December 2010, Conclusions, EUCO 30/1/10, para. 1.

53

Ibid., para. 1 and Annex I.

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of any required financial assistance under the mechanism will be made subject to strict conditionality.54

The amendment envisaged by the Member States will be ratified under the simplified revision procedure of Article 48 (6) TEU.55 This procedure does not require convening a convention but permits a simple approval by the Member States “in accordance with their respective constitutional requirements.”56 It also simplifies the constitutional procedure prior to ratification in some of the Member States. However, an amendment pursuant to Article 48 (6) TEU is restricted in its scope since it “shall not increase the competences conferred on the Union in the Treaties.” The legal effects of this restriction are the following: First, the European legislator may not base any legislative measures on the new treaty provision. Second, the new provision may not be used as a tool to extend existing competences of the Union by interpretation. Thus, the function of future Article 136 (3) TFEU is not to empower the EU or the Member States (since they do not require any treaty basis for their sovereign measures in any case) but to clarify and limit the scope of the no-bail-out clause under Article 125 TFEU.57 From the Member States’ constitutional point of view this treaty revision will not be considered as a conferral of competences but remains a simple amendment of primary law.58 Another consequence will be that the ESM forms an institution referred to, yet not established by the Treaties. Via Article 136 (3) TFEU it will be bound directly by EU law, but due to the restriction imposed by Article 48 (6) TEU it will not become an institution of the Union. As a result it remains an intergovernmental institution established outside the framework of the European Union,59 yet legally and politically closely woven into the fabric of EU law. Finally, the international legal character of the ESM can be derived from its founding treaty itself since the Treaty establishing the ESM of 11 July 2011

54

European Council, Decision 2011/199/EU, OJ 2011 L 91, 1.

55

Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13.

56

The German Federal Constitutional Court requires an express parliamentary consent in the form of a statutory law, see Federal Constitutional Court, BVerfGE 123, 267, 387. This was transformed into Sec. 2 Law on Integration Responsibility (Integrationsverantwortungsgesetz), 22 September 2009, BGBl. I, 3022, as amended on 1 December 2009, BGBl. I, 3822. 57

ECB, Opinion of 17 March 2011, OJ 2010 C 140, 8, para. 5.

58

For a different view Calliess (note 51), 279.

59

ECB (note 57).

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is an instrument of public international law.60 It demonstrates that the old debate of whether Member States may enter into legal relations between themselves beside the framework of primary law61 requires an answer in the positive. The legality of international treaties between Member States depends, however, on the question as to what extent the Member States and not the EU are still competent for a subject matter or whether primary law provides an express permission.62 The case of the ESM demonstrates that the competences attributed to the Union are limited even if the field of monetary policy for the euro area belongs to the exclusive competences of the EU, Article 3 (1)(c) TFEU. As long as under primary law there is no provision for the establishment of a financial emergency mechanism, this competence belongs to the Member States, Article 4 (1) TEU. Certainly, one could consider why the Member States did not agree on a revision of the Treaties that would bring the ESM fully under the scope of EU law. Apart from the need for a complex revision procedure under Article 48 (2)–(5) TEU, the main reason is probably that Member States were reluctant to lay the decision on the capitalisation of the ESM and accordingly the use of their budgetary resources in the hands of the EU legislator.63 The ESM Treaty which requires parliamentary approval in the participating Member States, the so called ESM Members, is expected to become effective prior to the cessation of operation of the EFSF. The necessary ratifications shall be deposited by the ESM Members no later than 31 December 2012, Article 42 (1) ESM Treaty. Under Article 43 ESM Treaty it shall enter into force on the first day of the second month following the date when ratifications by ESM Members representing 95 % of the capital subscriptions have been deposited. In the meantime, the EFSF Framework Agreement will continue to form the basis of operation of the EFSF.64 It will also be amended to reflect, as far as possible, the future powers of the ESM.

60

Norbert Horn, Die Reform der Europäischen Währungsunion und die Zukunft des Euro, NJW 64 (2011), 1398, 1401. 61 Jürgen Schwarze, Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen, EuR 4 (1983), 1, 5. 62

Ibid.

63

Similar analysis by René Smits, From the Board, Perspectives on the Euro Crisis, Legal Issues of Economic Integration (LIEI) 38 (2011), 107, 110. 64

On transitional arrangements see Arts. 34 and 35 ESM Treaty.

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IV. Tasks of the ESM A. Financial Stability as a General Interest

The task of the ESM is to maintain the financial stability of the euro area as a whole, as Articles 3 and 12 (1) ESM Treaty stipulate. For this purpose, it shall mobilise funding and provide financial assistance for the benefit of ESM Members which are experiencing or are threatened by severe financial problems.65 These treaty provisions clarify that the ESM, by pursuing financial stability, acts in the general interest of all ESM Members.66 Its direct purpose is not to alleviate funding problems of a particular ESM Member on the capital markets, but to mitigate risks for the stability of these markets. The concept of a fully-fledged ‘lender of last resort’ finds, therefore, no basis in the ESM Treaty even if the ESM provides assistance when the market access of an ESM Member is impaired.67 There are two additional reasons why the function of the ESM must be seen restrictively. First, its own means are limited and depend in each case on the preparedness of the ESM Member to put their capital shares at risk. Second, any financial assistance is contingent on the beneficiary country implementing macro-economic reforms. Accordingly, no ESM Member enjoys an individual right to financial assistance. On the contrary, financial assistance by the ESM will only be exchanged for macro-economic reforms by the beneficiary country.68 Even if an ESM Member qualifies for financial assistance by meeting all criteria under the ESM Treaty,69 the decision on whether to grant support depends on the discretion of the ESM Members, acting unanimously through the Board of Governors.70

B. Meaning of Financial Stability

The meaning of the term ‘financial stability of the euro area as a whole’ is neither defined by the ESM Treaty itself nor by Article 136 (3) TFEU. Political and mone65

Art. 3 ESM Treaty.

66

Insofar, financial stability is a global public good, see Tietje (note 22), 28.

67

Critical assessment by Horn (note 60), 1403.

68

With regard to the corresponding legal analysis for the IMF see Lastra (note 29), 416.

69

Art. 13 (1)(a)–(c) ESM Treaty.

70

Art. 13 (2) ESM Treaty: “may grant”.

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tary practice of recent years helps glean at least a basic understanding of the broader picture. According to the repeatedly used formula of the ECB, financial stability can be defined as a condition in which the financial system – which comprises financial intermediaries, markets and market infrastructures – is capable of withstanding shocks and the unravelling of financial imbalances. This mitigates the likelihood of disruptions in the financial intermediation process that are severe enough to significantly impair the allocation of savings to profitable investment opportunities.71

In the secondary law of the EU, the term is used as an element to describe the tasks of the European Systemic Risk Board (ESRB) under Regulation 1092/2010.72 In this context, the Regulation stresses the dangers for financial stability, the systemic risks, and defines them as “a risk of disruption in the financial system with the potential to have serious negative consequences for the internal market and the real economy.” It adds expressly: “all types of financial intermediaries, markets and infrastructure may be potentially systemically important to some degree.”73 Even if these definitions cannot be directly used for a treaty interpretation, they provide at least some orientation in understanding the economic rationale of the ESM Treaty. On the whole they show that a clear concept of what financial stability means in a positive sense is still outstanding – or as one author put it: “Financial stability is an evolving concept.”74 This makes it rather difficult to interpret the task of the ESM in a narrow sense as long as EU Member States rely heavily on financial markets to finance their public indebtedness. Rather, the concept leaves a broad room of discretion to the ESM Members and, pursuant to Article 13 (1)(a) ESM Treaty, to the European Commission and the ECB, which provide the underlying economic analysis. Narrowing the tasks of the ESM is, therefore, effected by the element of ‘indispensability’ under Articles 3 and 12 (1) ESM Treaty and Article 136 (3) TFEU which requires a necessity test in the strictest sense possible. It means that providing financial assistance by the ESM will remain an ultima ratio measure.75 The practice of the EFSF shows that this test depends on one specific scenario: the country is unable to borrow on markets 71

ECB, Financial Stability Review, June 2011, 9, available at: http://www.ecb.europa.eu/pub/pdf/ other/financialstabilityreview201106en.pdf?74a1a01742e03f843add4a32a08c2482 (accessed on 24 August 2011). The definition is used nearly identically in all Financial Stability Reviews of recent years. 72

24 November 2010, OJ 2010 L 331, 1.

73

Art. 2 (c) EU Regulation 1092/2010.

74

Lastra (note 29), 93.

75

ECB, Opinion of 17 March 2011, OJ 2010 C 140, 8, para. 2.

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at acceptable rates.76 Accordingly, the Preamble of the ESM Treaty reads: “[…] the ESM will provide financial assistance when its regular market access is impaired.”77 Since Article 125 TFEU still applies, this condition has to be interpreted very narrowly. Therefore, difficulties to get market access for an ESM Member will only be relevant if there is at the same time a concrete and severe risk for financial stability in the euro area as a whole. The necessity test requires, in addition, that any financial assistance must be of temporary nature only and that its terms and conditions are commensurate to the existing risks for financial stability.

V. Powers of the ESM A. Borrowing by the ESM

The ESM is empowered to borrow on the capital markets from banks, financial institutions or other persons or institutions for the performance of its purpose.78 This requires the power to conclude agreements so that the ESM Treaty attributes also the necessary legal personality to the ESM.79 It includes the capacity to enter into contracts under national private law or under public international law if the investor is a sovereign. As regards the various contractual instruments the ESM may make use of, it is provided that the ESM shall be entitled to raise funds by issuing financial instruments or by entering into financial or other agreements or arrangements with ESM Members, financial institutions or third parties.80 The broad competence does not restrict the geographical scope, the currency, the nature of the other parties or the legal character of the funding instruments to be used by the ESM. This means that the ESM enjoys broad discretion when, where, with whom and under what conditions it raises funds in the markets. The right to borrow is restricted by the purpose of the ESM which means that it may only be exercised to fund the lending operations for the benefit of particular ESM Members. The scope of this right will be under76

EFSF, Frequently Asked Questions, available at: http://www.efsf.europa.eu/attachments/faq_en. pdf (accessed on 26 August 2011), 7. 77

Recital 10 Preamble ESM Treaty.

78

Art. 17 (1) ESM Treaty.

79

Art. 27 (2) ESM Treaty.

80

Art. 3 ESM Treaty.

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stood broadly, as the Heads of State or Government agreed at their meeting of 21 July 2011, so that the ESM may also act on the basis of a precautionary programme.81 Another restriction is imposed by Article 123 TFEU since the function of that provision would be violated if the ECB could lend money to the ESM.82

B. Lending by the ESM

The effective lending capacity of the ESM will be considerably higher than the one of the EFSF, amounting to € 500 billion.83 Beneficiaries of the ESM lending operations will be ESM Members that will use the money for budgetary purposes. In addition, the Heads of State or Government of the euro area agreed at their meeting on 21 July 2011 to extend the mandate of the ESM so that it may “finance recapitalisation of financial institutions through loans to governments including in non programme countries.”84 The procedure for granting financial assistance is complex. It is initiated by a request from an ESM Member to the Chairperson of the Board of Governors.85 On receipt of such request the Chairperson shall entrust the European Commission and the ECB with the task to assess various factors. They include the existence of a risk to the financial stability of the euro area as a whole, the analysis of the debt sustainability of the ESM Member, the actual financing needs of the ESM members and the nature of the private sector involvement.86 The macro-economic, monetary and political complexity of this assessment is high and requires a broad margin of discretion accordingly. Legally, the assessment can be controlled only insofar as the European Commission or the ECB made grave, obvious mistakes. In the event that the assessment by the Commission and the ECB supports the request, the Board of Governors may decide to grant, in principle, financial assistance.87 The decision is taken unani-

81

Heads of State or Government of the Euro Area (note 31), para. 8.

82

ECB, Opinion of 17 March 2011, OJ 2011 C 140, 8, para. 9.

83

European Council, 24–25 March 2011, Conclusions, EUCO 10/1/11, Annex II; Recital 4 Preamble ESM Treaty. 84

Heads of State or Government of the Euro Area (note 31), para. 8.

85

Art. 13 (1) ESM Treaty.

86

Art. 13 (1) (a)–(c) ESM Treaty.

87

Art. 13 (2) ESM Treaty.

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mously, which means that every ESM Member must agree.88 Following that step, the European Commission shall negotiate together with the ECB and the IMF a Memorandum of Understanding (MoU) with the ESM Member concerned.89 This continues the EU practice of financial assistance for non-euro area Member States90 and the practice of the EFSF. The MoU is not directly legally binding even if its language seems to indicate that a binding effect is intended. The reason for the non-binding character is that the MoU does not represent a stand-alone treaty but forms the prerequisite for the granting of financial assistance by the ESM. This means that its enforcement mechanism does not build on legal categories of obligation and liability but on the exchange of economic reforms against the provision of financial support. Accordingly, the MoU specifies the economic policy conditions for the individual beneficiary and creates concrete obligations as to how to adjust its national budgetary and economic policy. As Article 2 (1) ESM Treaty provides, the macro-economic adjustment programme must be commensurate with the severity of the economic and financial imbalances experienced by the ESM Member. The ESM Treaty also provides that the IMF will be integrated in the negotiations of the adjustment programme, thereby building on the long experience of the Fund in the policy area of conditionality. After consent has been reached, the MoU will be signed by the European Commission on behalf of the ESM, subject to prior – unanimous – approval by the Board of Governors.91 In parallel to the negotiations for the MoU, the Managing Director prepares a proposal for a financial assistance agreement which includes the financial terms and conditions and the choice of instruments for the financial support.92 It will also provide that the ESM enjoys preferred creditor status which means that ESM claims are senior towards any claim of third parties and junior towards claims of the IMF.93 As long as it is only agreed in the financial assistance agreement this legal status creates an obligation of the debtor. In order to make it effective towards third parties 88

Art. 5 (6)(e) ESM Treaty.

89

Art. 13 (3) ESM Treaty.

90

Cf. the MoU between the EU and Romania of 29 June 2011, available at: http://ec.europa.eu/ economy_finance/eu_borrower/mou/20110629-mou-romania_en.pdf (accessed on 26 August 2011). 91

Art. 13 (4) ESM Treaty. The decision on the technical aspects is taken prior thereto by the Board of Governors acting unanimously, Art. 5 (6)(e) ESM Treaty. 92

Art. 13 (3) ESM Treaty.

93

Recital 10 Preamble ESM Treaty.

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they must recognise it94 unless it is also written in the terms and conditions of a bond issue. The legal privilege finds its justification in the role of the ESM which provides financial assistance when private investors are unwilling to put their money at risk. Technically, the financial assistance agreement may take the form of a loan or a loan facility, even if the latter is not expressly mentioned by Article 14 (1) ESM Treaty. Before entering into force, the agreement must be approved by the Board of Directors.95 It is to be considered as a treaty under public international law in the form of an executive agreement between the ESM and the beneficiary ESM Member, unless the parties expressly choose a national private law as governing law.

C. Primary and Secondary Market Operations

Instead of granting loans the ESM may also, as an exception, arrange for the purchase of bonds of an ESM Member on the primary market.96 Generally, the purpose of such purchases is to restore the financial stability of the euro area as a whole. In addition, the objective must be to maximise the cost efficiency of the financial assistance. As in the case of a loan, a financial assistance agreement will be concluded that provides the technical terms and conditions under which the bond purchase is closed.97 The granting of financial assistance depends also on the approval of a MoU to safeguard the conditionality requirement.98 On 21 July 2011 the Heads of State or Government of the euro area agreed to widen the scope of operation to the secondary markets. It was decided to authorise the ESM to intervene in the secondary markets on the basis of an ECB analysis recognising the existence of exceptional financial market circumstances and risks to financial stability and on the basis of a decision by mutual agreement of the ESM Member States.99

94

Cf. ECB, Monthly Bulletin, July 2011, 71, 80.

95

Art. 13 (5) ESM Treaty.

96

Art. 15 (1) ESM Treaty; see also ECB, Monthly Bulletin, July 2012, 71, 77 with an explanatory example. 97

Art. 15 (2) ESM Treaty.

98

Arts. 12 (1) and 15 (1) ESM Treaty.

99

Heads of State or Government (note 31), para. 8.

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As in all cases of financial assistance, the programme must be backed by a policy of conditionality that is reflected in a MoU between the ESM and the beneficiary ESM Member. The decision of the ESM to become active on the secondary markets is of high political importance.100 It will take over the burden from the ECB which did the same under its Securities Markets Programme. This will allow the ECB to abstain in the future from the difficult question of where to draw the line between (legal) monetary and (illegal) fiscal interventions under Article 123 TFEU which had threatened its credibility as an independent monetary authority.

D. Debt Sustainability and Conditionality

A key criterion for the ESM to provide financial assistance is whether the debt of the beneficiary is sustainable. An unsustainable debt may not be funded and requires the Member State first to engage into active negotiations with its non-public debtors in order to seek a restructuring of the debt.101 The debt sustainability will be analysed by the European Commission and the ECB102 which enjoy a considerable degree of economic discretion, even if the ESM Treaty requires a ‘rigorous analysis’. It covers a broad variety of elements like growth of deficit and debt, development of the primary deficit, maturity of the debt incurred, interest rates paid, prospects of economic growth, political and social range for austerity measures etc. Many of these factors can be quantified or at least estimated whereas other factors, in particular those regarding the ability and willingness for structural reforms, require political judgement.103 Even the analysis of economic competitiveness does not only rest on labour cost, productivity and export ratio but must take into account the professional training system and, to some extent, mental factors. Any assumption must be made carefully and, as far as possible, on the basis of facts. All judgements must be based on a solid reasoning completely considering all positive and negative aspects. If, and only if, the debt sustainability analysis is positive, can the negotiations go one step further and result in a macro-economic adjustment programme the purposes 100

Critical assessment by Horn (note 60), 1402.

101

Art. 12 (2) cl. 4 ESM Treaty.

102

Art. 13 (1)(b) ESM Treaty.

103

Cf. ECB, Monthly Bulletin, July 2011, 71, 789.

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of which are to re-open the capital market access of the beneficiary ESM Member, eliminate the risks for financial stability in the euro area as a whole and stabilise the beneficiary country. Whereas some of these purposes can possibly be reached within a short time, e.g. a reduction of acute nervousness on the markets and a return of the sovereign debtor to the capital markets, the realisation of other purposes may take many years.104 This is particularly true for structural reforms which require not only legislative measures, but often a new thinking in politics and in society. The range of measures that can be implemented under an adjustment programme is left open by the ESM Treaty. From the ratio of the ESM Treaty, it can however be deduced that any adjustment measures must aim at stabilising the budgetary and general macroeconomic situation of the beneficiary. This includes fiscal consolidation measures, structural reforms on the labour markets and product markets105 or even an overhaul of the financial system in the country. Any forms of ‘cross-conditionality’ to enforce other legal obligation of the beneficiary ESM Member would be illegal.106 From an international law perspective, the economic adjustment programmes are often considered as touching upon the right of self-determination of peoples and, respectively, the principle of non-intervention.107 The justification for this intrusion in the internal affairs of a sovereign State can only be found in the fact that the members of the euro area do not enjoy a right of financial assistance by the other members – neither under general international law nor under EU law. The ESM Treaty, which institutionalises the link between financial assistance and economic adjustment, will be entered into on a voluntary basis by all parties thereto.108 Beyond that contractual basis, conditionality conforms to well founded and long established international practice. Its rationale is not to curb the sovereignty of the beneficiary even if the effects of conditionality are sometimes considered as doing so.109 Conditionality aims at stabilising the economic situation of the beneficiary in the long term and 104 Insofar, financial assistance ‘buys’ time for reform measures, ECB, Monthly Bulletin, July 2011, 71, 72 et seq. 105

Ibid., 73.

106

Cf. Gianviti (note 30), 104.

107

See e.g. Frank J. Garcia, Global Justice and the Bretton Wood Institutions, Journal of International Economic Law (JIEL) 10 (2007), 461, 479. 108

Cf. Sabine Schlemmer-Schulte, Internationales Währungs- und Finanzrecht, in: Christian Tietje (ed.), Internationales Wirtschaftsrecht (2009), 375, 398. 109

Cf. Andreas Lowenfeld, International Economic Law (2nd ed. 2008), 646.

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making it independent from international support again.110 From the creditors’ point of view, conditionality also serves as a substitute for collateral.111 For the financial markets, the successful implementation of an adjustment programme is an important signal to restore the creditworthiness of the sovereign debtor.112 Hence, the more important question will be whether the contents of a particular reform programme match the requirements for a proper macro-economic transformation on the one hand and are proportionate with respect to the effects on the conditions of life of the population on the other hand. It can only be answered on a case-by-case basis, taking into account the social and political conditions of a country. Tensions caused by different political judgements on the proportionality of the adjustment programme must be procedurally mitigated by the negotiations between the beneficiary ESM Member, the European Commission and the ECB and result in a compromise that finds is expression in a MoU. The fact that a beneficiary ESM Member does not live up to the performance targets of a MoU cannot be considered as a violation of a legal obligation under the ESM Treaty or under EU law. The MoU by itself is not legally binding and accordingly missing its targets will not constitute the breach of an obligation by the beneficiary ESM Member. The sanction that can and must be imposed is a revision of the lending policy by the ESM that may suspend the disbursement of further tranches of the financial assistance.113 In severe cases, when the beneficiary ESM Member refuses to co-operate with the ESM even a complete withdrawal of the financial assistance should be possible.

E. Private Sector Involvement and Collective Action Clauses

1. Conditions In a situation where the sovereign debt is unsustainable the ESM Treaty requires that an ESM Member engages actively in negotiations for private sector involvement 110 Christian Walter, Debt Crisis, MPEPIL, para. 28, available at: http://www.mpepil.com (accessed on 16 September 2011). 111

Lastra (note 29), 417.

112

Ibid.

113

Art. 13 (7) ESM Treaty; cf. also ECB, Monthly Bulletin, July 2011, 71, 73.

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in order to restore its debt sustainability.114 The legal conditions for private sector involvement are complex. Firstly, it will happen on a case-by-case basis.115 Secondly, the debt sustainability analysis is framed by the analysis of whether there is a risk of contagion and potential spill-over effects to other countries that would be triggered by private sector involvement.116 Thirdly, the debt sustainability is assessed on the basis of the assumption that a macro-economic adjustment programme accompanied by financial assistance from the ESM will take place.117 All these conditions require difficult economic forecasts and estimations, making the decision on whether to urge for private sector involvement a highly political one. Legally, the obligation to seek private sector involvement honours the fact that the debt was incurred under private law and that its restructuring must fit into this legal context accordingly. In addition, negotiations between the debtor and its creditors open the door for a restructuring process where the interests of both sides are equally represented. The ESM Treaty also provides means to exert pressure on the debtor: financial assistance by the ESM will be contingent on the ESM Member having a credible plan for restoring debt sustainability and demonstrating sufficient commitment to ensure adequate and proportionate private sector involvement.118 Progress and practical results of the negotiation process become thereby a further element of conditionality.

2. Collective Action Clauses The technical means to open negotiations with the private creditors are standardised Collective Action Clauses (CAC) which must be included in all new bond issues from July 2013 onwards if their maturity is above one year.119 The language of these clauses is still under negotiation.120 In any event, their legal impact will be that the 114

Art. 12 (2) cl. 4 ESM Treaty.

115

Art. 12 (2) cl. 1 ESM Treaty.

116

Art. 12 (2) cl. 2 ESM Treaty.

117

Art. 12 (2) cl. 1 and 3 ESM Treaty.

118

Art. 12 (2) cl. 5 ESM Treaty.

119

Art. 12 (3) ESM Treaty.

120

The benchmark will be set by the G10 report on CAC of 2002, cf. ECB, Monthly Bulletin, July 2011, 71, 81. See also Peter Sester, Beteiligung von privaten Investoren an der Umschuldung von Staats-

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debtor may convene a conference of all creditors to open negotiations on a rescheduling or reduction of the debt (interest and capital) held by the creditors. Majority decisions taken by the conference of creditors will permit the amendment of the existing contractual relationship and be binding upon all creditors either of the same tranche or of all outstanding issues. At the same time the effects of legal action brought by individual creditors may not disrupt the negotiation process and privilege the noncooperating creditors towards the group of cooperating creditors.

3. Left-Overs The Treaty provisions on private sector involvement do not solve the problem of how to prevent the contagion risks of a debt restructuring process. Such risks can materialise since the opening of negotiations under CAC will be considered as a (partial) default by the debtor. One effect should not be prevented at all: the downwriting of distressed bonds held by private sector creditors. However, also all other legal regimes relying on a sovereign debtor not being in default will come under pressure. The central challenges will be to prevent a meltdown of monetary policy and to reduce contagion effects on financial markets. The maintaining of liquidity on the markets requires central banks to take unusual measures when confronted with illiquid financial institutes that cannot offer sufficient collateral for regular monetary transactions. One of the necessary instruments in these situations will be emergency liquidity assistance provided by national central banks which is legally possible within the framework of Article 14 (4) ESCB Statute.121 Another challenge to mitigate risk contagion will be the market for credit default swaps where it is unclear which measures need to be taken. To a certain extent, it could become necessary to recapitalise banks and other financial institutes.122 Then, the question will be whether the funds of the ESM and of individual countries will be sufficient to cover the capital needs.

anleihen im Rahmen des European Stability Mechanism (ESM), Wertpapiermitteilungen 65 (2011), 1057, 1063 et seq. 121

Sylvia Radtke, Liquiditätshilfen im Eurosystem (2010), 119 et seq.

122

ECB, Monthly Bulletin, July 2011, 71, 81.

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F. Liability of ESM Members

The main obligation of the ESM Member is to capitalise the ESM adequately since that forms the economic basis for the borrowing activities of the ESM. To reach the effective lending capacity of ESM of € 500 billion the ESM Member is required to subscribe capital of the ESM in an amount of € 700 billion,123 of which € 80 billion will be paid in, whereas the remaining € 620 billion are callable shares.124 The Board of Governors of the ESM may call in authorised unpaid capital at any time and set an appropriate period of time for its payment by the ESM Members.125 The capitalisation of the ESM is one of the big differences to the EFSF which has a share capital of only € 28 million and therefore relies predominantly on guarantees issued by the euro area Member States. From the point of view of an individual ESM Member its liability is expressly limited to its portion of the authorised capital stock at its issue price.126 This means that all financial obligations of an ESM Member are performed once it has fully paid in its portion of the subscribed capital. The right to claim the payment of the capital is attributed exclusively to the Board of Governors which acts on behalf of the ESM. Accordingly, no third party can claim the payment of capital by an ESM Member – neither to the ESM nor to itself. The corporative sphere between ESM Members and the ESM is also strictly divided from the contractual sphere between ESM and third parties, insofar as no ESM Member shall be liable, by reason of its membership, for obligations of the ESM.127 This clear recognition of the corporate veil under the ESM Treaty aims at avoiding the legal uncertainties that surround this issue in general international law128 and is generally considered to be effective towards third parties even if they are not contracting parties to the ESM Treaty.129

123

Art. 8 (1) and Annex II ESM Treaty.

124

Art. 8 (2) ESM Treaty.

125

Art. 9 (1) ESM Treaty.

126

Art. 8 (5) cl. 1 ESM Treaty.

127

Art. 8 (5) cl. 2 ESM Treaty.

128

Jan Klabbers, International Institutional Law (2nd ed. 2009), 288; Matthias Ruffert/Christian Walter, Institutionalisiertes Völkerrecht (2009), 84. 129

Cf. Klabbers (note 128), 290, expressing slight doubts.

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VI. Institutional Design The institutional design of the ESM is simple and corresponds to the needs of an intergovernmental organisation. The ESM Members are represented in the Board of Governors; each Governor being a member of the government who has responsibility for finance.130 Decisions are taken by mutual agreement; i.e. unanimously, with abstentions being possible, or in some cases by either qualified or simple majority.131 One member of the European Commission in charge of economic and monetary affairs and the President of the ECB may participate in the meetings as observers.132 Each Governor appoints one Director and one alternate Director, who together form the Board of Directors.133 This executive organ will be responsible for implementing the tasks delegated to it by the Board of Governors. All current business will be conducted by the Managing Director who chairs the Board of Directors and is at the same time the chief of staff of the ESM.134 The role of the ECB and the European Commission is to provide economic analysis, political advice and other forms of intellectual support. They do not become organs of the ESM, but may be entrusted to act on behalf of the ESM. This is particularly relevant for the negotiations with a beneficiary ESM Member on the conditions of a macro-economic adjustment programme.135 Cooperation with the IMF strengthens the independence of the EU organs in the assessment procedure necessary to find a neutral and balanced approach on the burdensome issues of debt sustainability and conditionality.136

130

Art. 5 (1) ESM Treaty.

131

Arts. 4 (2) and 5 (6)–(7) ESM Treaty.

132

Art. 5 (3) ESM Treaty.

133

Art. 6 ESM Treaty.

134

Art. 7 ESM Treaty.

135

Art. 13 (3) ESM Treaty.

136

ECB, Monthly Bulletin, July 2011, 71, 78; cf. also Tietje (note 22), 34, on the need for further international co-operation in this field.

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VII. Control of the ESM The ESM will be controlled on various levels. Internal and external auditing will assure that the day-to-day business is conducted in accordance with the requirements of the ESM Treaty.137 Questions of interpretation and dispute settlement with regard to the rights and obligations under the ESM Treaty are in the hands of the Board of Directors and the Board of Governors respectively.138 Where an ESM Member contests the decision by the Board of Governors, the dispute shall be submitted to the Court of Justice of the European Union.139 This remedy is possible under Article 273 TFEU. Much political attention is paid to the question of the extent to which national parliaments of the ESM Members may control the operation of the ESM. Since the ESM is an intergovernmental organisation, national constitutional law is concerned whether and in which forms national parliaments may exercise their budgetary prerogative.140 At least from the point of view of international law it is, therefore, possible for a national parliament to instruct its government how the national member in the Board of Governors may vote. Under the ESM Treaty all relevant financial decisions are taken by ‘mutual agreement’,141 which could bring a national parliament in a strong position towards the ESM. The potential strength of national parliamentary control, necessarily conducted under democratic principles, may also become a weakness of the ESM if a national parliament blocks the financial assistance not for budgetary reasons but for other purposes outside the scope of the ESM.

VIII. Outlook “Sovereign debt crises, unlike currency crises, last long and show persistence.”142 It must be hoped that this assessment does not prevent Member States of the EU from 137

Arts. 24 and 25 ESM Treaty.

138

Art. 32 (1) and (2) ESM Treaty.

139

Art. 31 (3) ESM Treaty.

140

Cf. Federal Constitutional Court, 2 BvR 987/10 of 7 September 2011, para. 141, available at: http://www.bundesverfassungsgericht.de/entscheidungen/rs20110907_2bvr098710.html (accessed on 21 September 2011). 141

Cf. Art. 5 (6)(a)–(l) ESM Treaty.

142

Manasse (note 33) 4.

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tackling their budgetary problems in their own interest and bring debts and deficits down to a sustainable size. The ESM will only be able to buy a limited amount of time for a Member State to recover financially and economically.143 Whether it will be successful depends exclusively on the political will and the capacity of the beneficiary Member States to enforce effective reforms in their economic and budgetary policies. Since its own financial capacity will remain limited, the idea that it can act as a lender of last resort for a large number of Member States or even one of the bigger Member States seems hardly realistic.

143

ECB, Monthly Bulletin, July 2011, 71, 84.

FOCUS THE ARCTIC CHALLENGE

Navigating the Arctic: The Canadian NORDREG, the International Polar Code and Regional Cooperation KRISTIN BARTENSTEIN(

ABSTRACT: Human activity is increasing in the Arctic due to several factors, not least of which is global warming, which particularly affects the region. It is against this backdrop that the development of the legal framework for the protection of the marine Arctic is unfolding. Even though it is in its infancy, several problems may already be noted and deserve closer attention. The latest example is the Canadian decision to make NORDREG mandatory. Consequently, vessels going through the Canadian Arctic are required to report to the Canadian authorities and may be denied access if they do not conform to Canadian standards. Several States recently objected to this decision. The main objective of the present paper is to examine the consistency of the compulsory NORDREG regulation with international law not without placing it in its factual and larger legal context. Its secondary objective is then to put such unilateral actions into perspective by highlighting the unavoidability of international standard setting with respect to navigation, referring to the example of the Polar Code, and by exploring the advantages of regional cooperation for the safe development of human activities in the Arctic. KEYWORDS: Arctic, navigation, NORDREG, Article 234 UNCLOS, Polar Code, Arctic Council, Canada, regional cooperation I. Introduction

There are many reasons for the increasing interest in the Arctic region. Some are real, others perceived; yet all are amplified by the media, public awareness and political interests. The facts are well known. Due to the effect of climate change, which is particularly affecting the northernmost part of our planet, significant physical changes are ongoing in the Arctic. The melting of the pack ice is one of the most readily visible signs of these unprecedented transformations.1 Easier access through ( 1

Kristin Bartenstein is a professor of Law at Laval University, Quebec City, Canada.

According to physicists from the University of Bremen, the extent the Arctic sea ice reached an historic low on 8 September 2011, below the previous historic low recorded in 2007. See University of

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less ice-infested, or even ice-free waterways, as well as less harsh conditions, help to accelerate the increase of human activity in the Arctic. However, improved technologies also play an important role in the intensification of human activity. They make activities possible – or cost-effective – which were not even envisioned just a few years ago.2 With respect to known and supposed resources, off shore and on shore,3 the fear of resources shortages and increasing world-market prices improve the profitability of exploitation activities or projects. Seaborne re-supply activities are expanding in order to respond to the demands of rapidly growing populations in the Arctic. This demographic growth is partly a consequence of increased economic activities in the Arctic and partly, as in the Canadian Arctic, a natural phenomenon witnessed in the indigenous communities. Furthermore, the International Polar Year (IPY), which is somewhat disingenuously a period of several years, has attracted many scientists and their research vessels to the Arctic. Some of these expeditions, e.g. those concerning the seafloor, have been sponsored by the littoral States motivated by the need to gather as much scientific data as possible for their submissions to the Commission on the Limits of the Continental Shelf. They are bound by a legal deadline, as these submissions have to be made within ten years of the entry into force of UNCLOS4 for the given State,5 meaning 2013 for Canada and 2014 for Denmark.6 Ten years is a short Bremen, Arctic sea ice extent small as never before, September 2011, available at: http://www.iup.unibremen.de/seaice/amsr/minimum2011-en.pdf (accessed on 9 September 2011). For the recent and historic data see also National Snow and Ice Data Center, Arctic Sea Ice News and Analysis, available at: http://nsidc.org/arcticseaicenews/ (accessed on 9 September 2011). 2 A major step was the development in the 1990s of so-called ‘double acting ships’ whose bow shape is designed for operation in open water or light ice conditions and whose stern shape is designed to be capable of ice-breaking. Depending on the prevailing condition, the ship can manoeuvre ahead or astern. See Kimmo Juurmaa/Tom Mattsson/Göran Wilkman, The Development of the New Double Acting Ship for Ice Operation, Proceedings of the International Conference on Port and Ocean Engineering under Arctic Condicitions 17 (2001), 719. 3 According to the US Geological Survey assessment, about 22 % of the undiscovered, technically recoverable resources in the world may be found north of the Arctic Circle. See US Geological Survey, 90 Billion Barrels of Oil and 1,670 Trillion Cubic Feet of Natural Gas Assessed in the Arctic, 23 July 2008, available at: http://www.usgs.gov/newsroom/article.asp?ID=1980 (accessed on 20 July 2011). 4 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 5 6

Art. 76 UNCLOS and Art. 4 Annex II.

Norway had to submit in 2006 and the Russian Federation in 2007, which did not prevent it from making a first – not completely accepted – submission in 2001. The United States, a non-party to UNCLOS, is not bound by this regime on the extended continental shelf, but it has been gathering data as well.

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term with regard to the Arctic, one of the least known marine areas of the world and one where conducting field research is particularly difficult. While the concentration of data gathering in such a short period may be suggestive of political or economic urgency, the hectic pace is due to this legal deadline. There are currently no exploitation projects related to the extended Arctic continental shelf. In any case, estimates put the majority of the resources within the 200 nautical miles zone,7 where the coastal State has exclusive rights for the purpose of exploiting the natural resources.8 Among the new activities to which a greater accessibility also gives rise is increased seaborne tourism. Its effect of trivialising Arctic navigation should not be underestimated. Finally there has been an increase in military exercises, at least in Canada, after such activities were scaled down considerably after the Cold War. One of the reasons behind these manoeuvres in the Canadian Arctic is to demonstrate readiness to a Canadian population that fears a loss of sovereignty in the Arctic, especially in the Northwest Passage, and who is content to accept as a solution these ‘occupational’ – and supposedly sovereignty-saving – measures.9 All of these human activities pose a risk to the marine environment. The integrity of the Arctic marine environment will be threatened by pollution caused by landbased mining as well as by off-shore oil and gas exploitation and by increased industrial fishing. Given the particular sensitivity of the Arctic ecosystems, these threats must be addressed in a timely manner. For once this is possible, since the risks are known before the damage occurs. The Arctic is still mostly unaffected by pollution and overfishing, without being a completely pristine environment.10 What almost all current activities have in common is that they rely on navigation. This is why navigation is increasing significantly. Even though the melting ice seems to open new waterways for commercial shipping, the Arctic will not evolve into a new major international sea route disencumbering bottlenecks, such as the Suez and the Panama 7

See US Geological Survey assessment (note 3).

8

Arts. 56, 57, 76 and 77 UNCLOS.

9

See the political slogan “Use it or lose it” of the Harper government with respect to the Arctic and a critique from a legal perspective: Kristin Bartenstein, “Use it or Lose it” – An Appropriate and Wise Slogan?, Policy Options 31 (7) (2010), 69. 10 The marine Arctic is affected by long-range air pollution (see information available at: http:// www.amap.no/) and nuclear waste dumped into Russian Arctic waters in the days of the USSR (see International Atomic Energy Agency, Radiological Assessment: Waste Disposal in the Arctic Seas, 1996, available at: http://www.iaea.org/Publications/Magazines/Bulletin/Bull391/specialreport.html) (both accessed on 20 July 2011).

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Canal or the Strait of Malacca. Of course, passing through the Arctic considerably shortens the trips between several ports, in particular between ports in the Northern hemisphere, such as Rotterdam – Yokohama, Hamburg – Seattle or New York – Shanghai.11 Nevertheless, there are and, for years to come will be, no container vessels transiting the Arctic. In the Russian Arctic, the transit of a non-Russian ship from Norway to China caused a stir in July 2010, since this constituted a première.12 According to the Canadian Coast Guard, in 2010, only two out of 26 Arctic transits were made by cargo ships, while 21 transits were attributable to tourism, two others to icebreakers and one to a tugboat;13 this data indicates that the uptrend in transits is exclusively imputable to tourism activities. In general, trans-Arctic navigation has been highly exceptional in the last 100 years of Arctic navigation. Melting ice and icefreer waterways notwithstanding, for commercial shipping, subject to the constraints of just-in-time-operation, depending on predictable shipping conditions and yearround open waterways, uncertainties associated with Arctic shipping are too substantial for the Arctic to be a serious alternative for the shipping industry. Arctic winters, which are extremely dark and cold, will continue to make navigation impracticable. In summer months, the waters may be completely ice-free in some areas, while vessels may encounter heavily ice-laden waters in other usually navigable areas. Frequently changing circumstances make reliable predictions difficult. The disrupted ice-cover might pose an even greater threat to navigation with more icebergs, including smaller, denser and less detectable ones. Other examples of imponderable phenomena include fog, wind and water currents. Furthermore, as far as the Canadian Arctic is concerned, even if it were completely ice-free, it would not be navigable for all vessels, since its waterways would often be too narrow or too shallow. Reliable charts do not exist for all parts of the Arctic. Presumably, regular transits through the Arctic will 11

Rotterdam – Yokohama: 13,360 km through the Northern Sea Route off Russia v. 21,170 km via Suez Canal and Strait of Malacca; Hamburg – Seattle: 12,770 km through the Northern Sea Route v. 17,110 km via Panama Canal; New York – Shanghai: 17,030 km through Northwest Passage v. 20,880 km via Panama Canal. See Frédéric Lasserre, Vers une autoroute maritime? Passages arctiques et trafic maritime international, in: Frédéric Lasserre (ed.), Passages et mers arctiques: géopolitique d’une région en mutation (2010), 449, 454. 12

Thomas Nilsen, “MV Nordic Barents” Makes Historic Voyage, BarentsObserver, 26 August 2010, available at: http://borderzone.barentsobserver.com/index.php?cat=16335&id=4812338&showforum form=1&find (accessed 7 July 2011). 13

See Frédéric Lasserre/Sébastien Pelletier, Polar Super Seaways? Maritime Transport in the Arctic: An Analysis of Shipowners’ Intentions, Journal of Transport Geography 19 (2011), 1465, 1470.

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therefore remain exceptional for years to come. The increasing navigation is attributable to destination shipping activities, identified as being the “growth engine of Arctic traffic.”14 This does not mean that it is not important to legally address increasing local navigation, since it faces the same navigational hazards and also threatens the integrity of the marine environment. It is certainly not too early to think about the legal framework for all activities developing in the Arctic in order to minimise their detrimental environmental side effects, but navigation appears to be the most urgent matter to deal with. At the same time, navigation is perhaps the most difficult matter to deal with, because it stretches across space and causes collision between antagonistic interests. Regulating navigation for the sake of the marine environment inextricably raises the question of how the fundamental principle of freedom of navigation can be conciliated with regulatory constraints upon navigation. The general compromise, elaborated in UNCLOS and differentiating between the maritime zones and the type of regulation, may not apply unaltered to ice-covered waters. In any event, the challenge is to work out a coherent corpus of effective rules for a natural environment which is blind to political borders as well as to the maritime zones determined by UNCLOS. The tightening of the law concerning Arctic navigation is under way and deserves some attention. The present paper scrutinizes the authority of the Arctic coastal States, with a closer look at the controversial Canadian decision to make NORDREG, its regulation applying to Arctic navigation, mandatory. It also examines the role of the international community, acting through the International Maritime Organization (IMO), and of the Arctic regional community, as organised under the Arctic Council. On this basis, it will conclude with some more general thoughts about the future governance of the protection of the marine Arctic.

II. NORDREG’s Setting: The International and Canadian Framework and the Current Controversy In the Arctic, in comparison to the situation prevailing in other regions of the world, the coastal State is a prominent actor when it comes to defining the legal 14 For a comprehensive assessment of the Arctic as a new frontier for shipping activities see ibid., 1467 et seq.

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framework of navigation. The interpretation of this role led Canada to adopt measures encountering resistance from other States expressed in IMO committees. Amid the background of the general legal situation of Arctic navigation, this first part aims at presenting the Canadian legislation and the controversy its latest initiative triggered.

A. The General Legal Situation of Arctic Navigation

The coastal State plays a particularly important role in the governance of navigation in the Arctic Ocean, more so than in other parts of the world where international cooperation within the “competent international organization,”15 i.e. the IMO, has led to a considerable number of internationally agreed-upon regimes. The first reason for this situation is the atrophy, compared to other regions, of international rule-making with regard to the Arctic. The sensitivity of the Arctic marine environment notwithstanding, so far no special regime has been established, despite a whole panoply of possibilities. There is no comprehensive treaty applying to human activity in the Arctic Ocean, contrary to the Southern polar region for which the Antarctic Treaty System has been developed over the last 50 years.16 Not even a specific legal framework applying to navigation in the Arctic has been elaborated to this day, although a number of pre-shaped options would facilitate negotiations. The IMO Member States could proceed under the Annexes of MARPOL,17 as they have done for numerous other vulnerable zones including Antarctica, in order to limit the discharge of oil and other noxious substances from ships. They could establish a Particularly Sensitive Sea Area (PSSA),18 a sui generis area, not explicitly provided for by UNCLOS, but in line with its objectives and enjoying significant popularity, not least because of the associated protective measures, a tailor-made protective regime.19

15

Art. 211 (1) UNCLOS.

16

Antarctic Treaty, 1 December 1959, UNTS 402, 72; Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, ILM 30 (1991), 1461. 17

International Convention for the Prevention of Pollution from Ships, as Modified by the Protocol of 1978 Relating Thereto (MARPOL 73/78), 17 February 1978, UNTS 1340, 62, (MARPOL). 18 Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, IMO Res. A.982(24), 1 December 2005. 19

Ibid., para. 1.2.

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Ships’ routeing, as provided for by Chapter V, Regulation 10 SOLAS,20 may be part of such a PSSA legal regime, but creating a PSSA is of course not a prerequisite for ships’ routeing measures. They are extensively used in regions with particular hazards or heavy traffic. The only specific IMO instrument applicable to navigation in the Arctic is a set of guidelines. In 2002 a first set, the Guidelines for Ships Operating in Arctic Ice-covered Waters, was adopted.21 In 2010 they were updated, amended so as to make them additionally applicable to vessels operating in the Antarctica Treaty region and renamed Guidelines for Ships Operating in Polar Waters.22 Its standards concerning construction, equipment, operation, environmental protection and damage control complement existing instruments, notably SOLAS and MARPOL. They are explicitly meant to fill in the gap of standards related to polar navigation.23 However, as their name indicates, the Guidelines are only recommendatory in nature,24 the States being asked “to take appropriate steps to give effect to the […] Guidelines” and bring them to the attention of the various stakeholders involved in polar shipping.25 The lack of a compulsory instrument addressing the particular risks of polar navigation is believed to be a major shortcoming and negotiations on what is known as the Polar Code, a set of mandatory standards for polar navigation, are ongoing within the IMO. The Guidelines may thus be only a stopgap for the time being (see infra, III. B.). A first regional initiative was announced on 12 May 2011 with the Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic,26 the first legally binding treaty negotiated under the auspices of the Arctic Council. The objective being “to strengthen aeronautical and maritime search and rescue cooperation and co-

20 International Convention for the Safety of Life at Sea, 1 November 1974, UNTS 1184, 278 (SOLAS). 21 Guidelines for Ships Operating in Arctic Ice-covered Waters, IMO Doc. MSC/Circ.1056 – MEPC/Circ.399, 23 December 2002. 22

Guidelines for Ships Operating in Polar Waters, IMO Res A.1024(26), 18 January 2010, Annex.

23

Ibid., Recital 1.3 Preamble.

24

Ibid., Recital 1.4 Preamble.

25

IMO Res. A.1024(26), paras. 2–4.

26

Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic, 12 April 2011, available at: http://arctic-council.org/filearchive/Arctic_SAR_Agreement_EN_FINAL_for_ signature_21-Apr-2011.pdf (accessed on 26 July 2011) (Search and Rescue Agreement).

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ordination in the Arctic,”27 the agreement is concerned with navigation only insofar as it deals with emergencies occurring to vessels navigating in the Arctic. It is not intended to regulate the vessels engaged in Arctic shipping, but to ensure the contingency preparedness of the Arctic States. Another initiative, which is not a navigation regulating regime either, but certainly offers a contribution to safer navigation, is the recent expansion of the World-Wide Navigational Warning Service (WWNWS) into Arctic waters by adding NAVAREA XVII to XXI, i.e. areas where the coordinating State provides navigational and meteorological warnings as well as forecasts to the mariners.28 The five new sectors in the Arctic Ocean are coordinated by Canada (XVII and XVIII), Norway (XIX) and the Russian Federation (XX and XXI). In addition to the scarcity of specific international legal rules and standards applying to Arctic navigation, the particular role of the coastal State is also rooted in UNCLOS, more precisely in Article 234 on ice-covered waters, which reads as follows: Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

The provision gives the coastal State of ice-covered waters the power to prescribe and enforce measures for the prevention, reduction and control of vessel-pollution that go beyond the nuanced powers granted to the coastal State by the ordinary provisions of UNCLOS, notably Article 211 (4)–(6), and Article 220. The precise scope of Article 234 is not clear and the wording causes many uncertainties which must be tackled by interpretation.29 Some of the questions raised by Article 234 will be addressed later. For now it is sufficient to note that one significant distinctive

27

Art. 2 Search and Rescue Agreement.

28

Global maritime distress and safety system (GMDSS) – Report on the Arctic MSI Services, IMO Doc. COMSAR 15/3/9, 23 December 2010. 29 For an attempt at interpretation, see Kristin Bartenstein, The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?, Ocean Development and International Law (ODIL) 42 (2011), 22.

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feature of this provision is that the coastal State may prescribe measures, without prior approval by the IMO and without being limited to IMO standards. In ice-free waters beyond the baselines, completely unilateral standard setting is usually limited to some exceptional situations.30 Article 234 is therefore a lex specialis provision and a striking exception to the dominating international standard setting.31 Some Arctic States have based national legislation on Article 234. With respect to the Northern Sea Route the Russian Federation has adopted a series of regulations and guidelines which apply to shipping activities in the Russian Arctic waters.32 They go beyond internationally agreed-upon standards,33 and the Russian Federation asserts that its regulations are consistent with Article 234.34 Likewise, Canada’s legislation on Arctic navigation is based on Article 234, even though some of it predates Article 234 and was even instrumental for the insertion of this provision into UNCLOS. 40 years after the first important step in national legislation on Arctic navigation, a new Canadian initiative, i.e. the mandatory NORDREG regulations applicable in the Canadian Arctic,35 is once again under the spotlight of international attention, the extent of the regulating role given to the Arctic coastal State being thus put to the test by Canada.

B. Canada’s Legislation on Arctic Navigation

Even though the latest international discussion on Canadian legislation concerns NORDREG, it is useful to give an overview of the regulatory context of Arctic 30

E.g. discharge standards in the territorial sea, Art. 21 UNCLOS.

31

Art. 211 (5) and (6) UNCLOS.

32

Regulations for Navigation on the Seaways of the Northern Sea Route, 1990; Guide to Navigating through the Northern Sea Route, 1996; Regulations for Icebreaker and Pilot Guiding of Vessels through the Northern Sea Route, 1996; Requirements for the Design, Equipment and Supplies of Vessels Navigation the Northern Sea Route SR, 1996 etc., all available at: http://www.morflot.ru/about/ sevmorput/index.php (accessed on 1 July 2011). 33

Erik Franckx, The Legal Regime of Navigation in the Russian Arctic, Journal of Transnational Law and Policy 18 (2009), 327, 339. 34 Ibid., 332–333. See also Vsevolod Peresypkin/Vladimir Vasilyev, The Russian Arctic Marine Transportation Policy, Ocean Yearbook 24 (2010), 411, 415, mentioning that the regulations are currently under revision. 35

Northern Canada Vessel Traffic Services Zone Regulations, SOR/2010-127 (NORDREG), available at: http://laws-lois.justice.gc.ca/PDF/SOR-2010-127.pdf (accessed on 22 September 2011).

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navigation in Canadian waters before turning to this latest debate. Canada’s earliest legislation on navigation dates back to 1970, when Canada enacted the Arctic Waters Pollution Prevention Act (AWPPA), creating a zero tolerance zone by prohibiting any deposit of waste in Arctic waters or on land where it may enter Arctic waters.36 It was the legislative reaction to the highly controversial crossing, in 1969, of the Canadian Arctic archipelago by the SS Manhattan, an American oil tanker with a strengthened hull, sent through the polar waters – empty – for the purpose of testing the technical and economic feasibility of Arctic shipping. The test was rather inconclusive, but the Canadian public became aware of the sensitivity of the Arctic environment. The passage also raised awareness of the vulnerability of the Canadian position that it had full sovereignty over the mythic – and identity-creating – Northwest Passage. In 1970, although the legitimacy of the new Canadian law was not called into question, its consistency with international law was at least doubtful, as it applied up to 100 nautical miles off the shore of the Arctic mainland and islands.37 During the Third United Nations Conference on the Law of the Sea (UNCLOS III), Canada therefore sought to include a provision granting the Arctic coastal States the right to take measures against vessel-source pollution such as those imposed under the AWPPA. Article 234 on coastal State jurisdiction over ice-covered waters is the result of these efforts.38 Rightly called ‘Arctic exception’, it gives the coastal States of the polar regions extraordinary power to regulate navigation. After its election in 2006, the Steven Harper Canadian government made a political commitment to bring the Canadian Arctic to the fore. Although it is considered central to Canada’s character and identity, it has been, in the government’s view, essentially disregarded by the decision makers in the past. As a consequence, Canada’s Northern

36 Arctic Waters Pollution Prevention Act, S.C. 1970, c. 47 (amended version: now R.S.C., 1985, c. A-12) (AWPPA), available at: http://laws.justice.gc.ca/PDF/A-12.pdf (accessed on 22 September 2011). 37 The relevant part of Art. 3 (1) AWPPA read in 1970: “[…] this Act applies to the waters (in this Act referred to as the ‘arctic waters’) adjacent to the mainland and islands of the Canadian arctic within the area enclosed by the sixtieth parallel of north latitude, the one hundred and forty-first meridian of longitude and a line measured seaward from the nearest Canadian land a distance of one hundred nautical miles [sic][…].” (Emphasis added). 38

On the history of Art. 234 UNCLOS, see Donald M. McRae, The Negotiation of Article 234, in: Franklyn Griffiths (ed.), Politics of the Northwest Passage (1987), 98.

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Strategy was released in July 2009.39 It outlines Canada’s priorities for the north, i.e. exercising its Arctic sovereignty, promoting social and economic development, protecting the north’s environmental heritage, and improving and devolving northern governance.40 As part of this Strategy, in August 2009 Canada expanded the geographical scope of the AWPPA. Besides the internal waters, i.e. the waters Canada considers as being its historic internal waters,41 and the adjacent territorial sea, measured from the baselines,42 the definition of the ‘Arctic waters’ now encompasses the entire Canadian Arctic exclusive economic zone (EEZ),43 no longer content with an expansion of up to 100 nautical miles from the shoreline. Hence, the AWPPA now has the maximum territorial scope possible under Article 234 UNCLOS. In the months following the expansion, the geographical scope of the corresponding Shipping Safety Control Zones Order was extended accordingly, as can be seen in figure 1 below.44 It creates sixteen zones within the Canadian Arctic waters determined on the basis of ice-cover and navigability, zone one being the least navigable. For all zones, a zone/date matrix indicates the period of accessibility depending on the hull strength classification of the given vessel, based on probable ice conditions, which are determined by historical data. This zone/date approach suits the legal purpose of clarity and predictability but is perceived as unreasonably rigid, for it does not take into account natural variability. Due to year-on-year variations of ice conditions, access

39 Canada, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians, Canada’s Northern Strategy: Our North, Our Heritage, Our Future, 26 July 2009, available at: http://www.northernstrategy.ca/cns/cns-eng.asp (accessed on 13 July 2011). 40

Ibid., 2.

41

Canada, Department of External Affairs, Letter, 17 December 1973, reprinted in: Canadian Yearbook of International Law 12 (1974), 279. 42 The Arctic baselines were established, with effect from 1 January 1986, on the basis of the line delineating Canada’s historic waters: Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85872, available at: http://laws.justice.gc.ca/eng/regulations/SOR-85-872/index.html (accessed on 22 September 2011). 43

Canada, Bill C-3, An Act to Amend the Arctic Waters Pollution Prevention Act, 1st Sess. 38th Parl, 2008, available at: http://laws.justice.gc.ca/PDF/2009_11.pdf (accessed on 22 September 2011). 44

Shipping Safety Control Zones Order, C.R.C., c. 356, available at: http://laws.justice.gc.ca/PDF/ C.R.C.,_c._356.pdf (accessed on 22 September 2011).

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Fig. 1: Shipping Safety Control Zones. Source: Schedule 2 of the Shipping Safety Control Zones Order.

may either be allowed under unsafe conditions or, particularly in the context of receding ice, be overly restrictive. Canada therefore introduced the Arctic Ice Regime Shipping System45 which applies outside the access periods determined by the order.46 This system allows decisions on a case-by-case basis, depending on current ice conditions, hull strength, displacement and power of the vessel. Significant research has been conducted on a more reliable methodology to revise the regulatory system and

45

Arctic Ice Regime Shipping System (AIRSS) Standards – TP 12259, available at: http://www.tc. gc.ca/eng/marinesafety/tp-tp12259-menu-605.htm (accessed on 13 July 2011). 46

Arctic Shipping Pollution Prevention Regulations, C.R.C., c. 353, available at: http://laws-lois. justice.gc.ca/PDF/C.R.C.,_c._353.pdf (accessed on 22 September 2011) Art. 6 (3). See also Ivana Kubat/Garry W. Timco, Ice Regimes Options for the ASPPR: The Way Forward, paper presented at International Conference and Seminar: Arctic Shipping North America, 20–21 October 2008, available at: ftp://ftp2.chc.nrc.ca/CRTreports/LL_Shipping_08_Way_Forward.pdf (accessed on 13 July 2011).

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a hybrid system combining an updated zone/date system with a modified ice regime system is most likely to be adopted.47 The second decision on Arctic navigation made in the context of Canada’s Northern Strategy concerns NORDREG, a vessel traffic service (VTS) and ship reporting system (SRS).48 It applies not only to the ‘arctic waters’ covered by the AWPPA and the Shipping Safety Control Zones Order, but also to several areas south of latitude 60º in Hudson Bay and Ungava Bay, as can be seen in figure 2.49 Canada decided, as of 1 July 2010, to make NORDREG mandatory.50 Any vessel under the scope of the regulation51 must now provide a sailing report indicating identity, position and voyage information as well as, inter alia, information on cargo, which must be detailed in case of dangerous cargo and pollutants, and on defects, damage, deficiencies and other circumstances adversely affecting the vessel’s normal navigation.52 It must report its sailing plan as to when it is about to enter the NORDREG Zone.53 Furthermore, daily position reports are required.54 If a vessel varies significantly from the sailing plan or if the intended voyage changes, a deviation report must be submitted.55 A final report must be provided, notably immediately before the vessel exits the NORDREG Zone.56 As a consequence of being informed of the identity (and fitness), cargo, destination and position of the vessels sailing in the Arctic, Canadian authorities have a good idea of what is going on, enabling them to take the necessary means to ensure safe traffic, in particular with regard to vessels posing greater risk. 47

See Garry W. Timco/Anne Collins/Ivana Kubat, The Approach for Revising the Canadian Arctic Shipping Regulations, Proceedings of the 20th International Conference on Port and Ocean Engineering under Arctic Conditions, 9–12 June, 2009, Luleå, Sweden, available at: ftp://ftp2.chc.nrc.ca/ CRTreports/POAC_09-57_Regs_Revision.pdf (accessed on 13 July 2011). 48

NORDREG (note 35).

49

Art. 2 NORDREG.

50

Art. 4 NORDREG.

51

See Art. 3 NORDREG: “(a) vessels of 300 gross tonnage or more; (b) vessels that are engaged in towing or pushing another vessel, if the combined gross tonnage of the vessel and the vessel being towed or pushed is 500 gross tonnage or more; and (c) vessels that are carrying as cargo a pollutant or dangerous goods, or that are engaged in towing or pushing a vessel that is carrying as cargo a pollutant or dangerous goods”. 52

Art. 5 (2) NORDREG and particularly Schedules 13 and 14.

53

Art. 6 NORDREG.

54

Art. 7 NORDREG.

55

Art. 9 NORDREG.

56

Art. 8 NORDREG.

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Fig. 2: NORDREG Zone, According to the Northern Canada Vessel Traffic Services Zone Regulations. Source: Transport Canada: http://www.tc.gc.ca/eng/marinesafety/debs-arctic-shipping-operations-nordreg-357.htm.

According to Article 126 (1)(a) Canada Shipping Act 2001, a vessel shall not enter, leave or proceed within the NORDREG Zone without having previously obtained clearance.57 This clearance obligation enables Canada to not only react adequately and in a timely way if a vessel gets into difficulties, but it makes preventive action possible as well. Indeed, a vessel deemed unfit for navigating in the Arctic or in the intended route may be denied clearance for the sake of its own safety and the environmental security of the Arctic. Contravening the clearance obligation is pun-

57

Canada Shipping Act, 2001, S.C. 2001, c. 26, available at: http://laws.justice.gc.ca/PDF/C-10.15. pdf (accessed on 22 September 2011).

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ishable with a fine of up to $ 100,000 or imprisonment of at most one year.58 The vessel in question may also be detained.59 NORDREG was recommendatory for 33 years and according to information provided by Transport Canada and the Canadian Coast Guard, historical data suggests that 98 % of the vessels sailing in or through the Arctic complied with it.60 A vessel complying with NORDREG received in return useful services, such as ice information, ice routing, icebreaker assistance and search and rescue, an advantage which according to the Canadian Coast Guard was instrumental in attaining the high compliance rate.61 Even under a voluntary system, Canada’s authorities were thus able to monitor Arctic navigation extensively, to provide safety enhancing services and to screen the vessels engaged in Arctic shipping. Given the voluntary character of NORDREG, however, it was underlined that it was not possible for Canada to force the residual 2 % of vessels that did not report to Canadian authorities to respect NORDREG.62 Making NORDREG compulsory has consequently been suggested repeatedly over the last 25 years, sometimes by underlining that sovereignty would thus be better asserted as a side effect.63

58

Art. 138 (1) and (2) Canada Shipping Act, 2001.

59

Art. 138 (4) Canada Shipping Act, 2001.

60

House of Commons, Standing Senate Committee on Fisheries and Oceans, The Coast Guard in Canada’s Arctic: Interim Report, 39th Parliament, 2nd Session, June 2008, 32, available at: http://www. parl.gc.ca/Content/SEN/Committee/392/fish/rep/rep04jun08-e.pdf (accessed on 22 September 2011). 61

Ibid.

62

Ibid.

63

Ted McDorman, In the Wake of the ‘Polar Sea’: Canadian Jurisdiction and the Northwest Passage, Cahiers de Droit 27 (1986), 623, 644; Franklyn Griffiths, The Shipping News: Canada’s Arctic is Not on Thinning Ice, International Journal (IJ) 58 (2003), 257, 272; Suzanne Lalonde, Increased Traffic through Canadian Arctic Waters: Canada’s State of Readiness, Revue juridique Thémis 38 (2004), 49, 121 et seq.; Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, ODIL 38 (2007), 2, 7; House of Commons, Standing Senate Committee on Fisheries and Oceans, Controlling Canada’s Arctic Waters: Role of the Canadian Coast Guard, 40th Parliament, 2nd Session, December 2009, 31 (recommendation 1) available at: http://www.parl.gc.ca/Content/SEN/Committee/402/fish/ rep/rep07dec09-e.pdf (accessed on 22 September 2011); Michael Byers, Who Owns the Arctic? – Understanding Sovereignty Disputes in the North (2009), 72; indirectly: Rob Huebert, The shipping news Part II: How Canada’s Arctic Sovereignty is on Thinning Ice, IJ 58 (2003), 295, 302.

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C. The Controversy over NORDREG within the IMO

When Canada made NORDREG mandatory in the summer of 2010, an international skirmish arose. Negative reactions from other States, particularly the United States, were anticipated by Canadian officials in the discussions preceding the decision.64 Interestingly, the discussion of the Canadian law was mainly confined to discussions within specialised IMO committees, the States ultimately reacting in a very measured manner to the alleged inconsistencies with international law. The comments that have been made thus far seem to be more moderate than expected.65 From a practitioner’s point of view, the mandatory nature of NORDREG does not seem to be perceived as being problematic.66 That the compliance rate already verged on 100 % under the previous voluntary regime may be explained by the fact that the responsible ship operator, interested in the safety of its voyage in dangerous waters, is likely to agree with the Canadian standards. Furthermore, the minimal negative impact of the reporting requirements is outweighed by the significant positive effects of receiving essential data which renders responsible and informed decisions possible. The criticism NORDREG has drawn from some States at the IMO appears to therefore be motivated on grounds which are not rooted in practical problems associated with mandatory NORDREG requirements. It arguably rests upon general reasons of consistency with the States’ earlier positions on Canadian Arctic claims. Private shipping associations seem to criticise the Canadian regulation as a matter of principle, since freedom of navigation is at the heart of the shipping industry whose very interests they defend. It is also worth noting that all delegations made clear that they share Canada’s concern for the safety of navigation and the protection of the Arctic marine environment.67

64

House of Commons, Standing Senate Committee on Fisheries and Ocean (note 60), 32.

65

See also Ted McDorman, National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada, 3 (unpublished version of a paper presented at the Conference on Globalization and the Law of the Sea, Washington, D.C., 1–3 December 2010, forthcoming in the proceedings from the Conference to be published by Martinus Nijhoff). 66 Position taken by several private and public German stakeholders of Arctic navigation in informal discussions organised by the Canadian Embassy in Germany and attended by the author in early 2011. 67 United States and INTERTANKO, Northern Canada Vessel Traffic Services Zone Regulations, IMO Doc. MSC 88/11/2, 22 September 2010, para. 2; Report to the Maritime Safety Committee, IMO Doc. NAV 56/20, 31 August 2010, para. 19.23; Report to the Maritime Safety Committee on its Eighty-Eight Session, IMO Doc. MSC 88/26/Add.1, Annex 28, 19 January 2011 (Statement by the delegation of Singapore).

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Even though the legitimacy of Canada’s intention is, therefore, not questioned, the means used by Canada are. At first, the Canadian decision to make NORDREG mandatory provoked criticisms from within the IMO’s Sub-Committee on Safety of Navigation. The Baltic and International Maritime Council (BIMCO) raised the concern that, in accordance with the new clearance requirement, a vessel would not be authorised to proceed without clearance, which was felt to be an interference with the right to innocent passage.68 At the same time, the United States expressed their clear preference for NORDREG being established through the IMO rather than unilaterally.69 During the ensuing discussion within the IMO’s Maritime Safety Committee, the United States and the International Association of Independent Tanker Owners (INTERTANKO) denounced the unilateral character of the mandatory SRS and VTS zones contained in NORDREG. They further held the view that “had these regulations followed the usual course,” they would have been established through the IMO.70 They also considered that a coastal State could adopt a mandatory VTS only within its territorial sea, meaning that Canada could not impose its VTS in a zone extending from the outward limits of the territorial sea up to the limits of its EEZ without passing through the IMO.71 Moreover they expressed doubts as to the type of VTS that was established and, in case that it was one of an advanced level, whether it has been properly designed with Canada being able to shoulder the burden which such a VTS imposes upon the coastal State.72 Germany reportedly stated that “it was of great importance to submit […] proposals for new routeing measures to the [IMO] before implementing them,” referring not only to the legal and practical reasons in favour of following the procedures within the IMO, but also emphasising “the interest of the shipping industry to obtain a clear understanding of the new proposed systems” and the expertise of the Ships’ Routeing Working Group of the NAV Sub-Committee. It therefore invited Canada to proceed with the submission of “appropriate proposals” for consideration and adoption by the 68

Report to the Maritime Safety Committee, IMO Doc. NAV 56/20 (note 67), para. 19.23.

69

Ibid., para. 19.21.

70

United States and INTERTANKO (note 67), para. 3.

71

Ibid., paras. 4 and 5.

72

Ibid., paras. 6 et seq.

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IMO.73 According to the report on the debates concerning the NORDREG SRS and VTS, some other unidentified delegations were also of the view that both should be established by following “the widely accepted SOLAS procedures.” Singapore, contrary to the other critics, commented directly on the conformity of mandatory NORDREG with Article 234 UNCLOS. First, Singapore indicated that “such a mandatory system should be supported by best available scientific evidence” and that “it would be useful if empirical data could be provided to demonstrate how making NORDREG mandatory would materially help to achieve this end.”74 Furthermore, Singapore noted that it was “not clear […] how [the clearance requirement] would adequately give ‘due regard to navigation’.”75 Since Canada bases the compulsory NORDREG regulation on Article 234 UNCLOS,76 it responded to the criticism voiced within the IMO by underlining the consistency of NORDREG with Article 234.77 As McDorman points out, the invocation of Article 234 in support of NORDREG “marks the first time that Canada has directly relied upon Article 234 to support a new initiative in Canada’s Arctic waters.”78 Interestingly, some unidentified delegations considered that the issue was not within the remit of the IMO,79 a position which comes close to Canada’s. Except for Singapore, no other State directly challenged NORDREG for not conforming to Article 234, but doubt was cast on the consistency of NORDREG with the regulations in Chapter V SOLAS. Indeed, Canada considers NORDREG to be both a SRS and VTS,80 regimes which are dealt with respectively by Chapter V, Regulations 11 and 12 SOLAS. A closer look at the arguments of both sides might help to elucidate the issue. 73

Report of the Maritime Safety Committee on its Eighty-Eighth Session, IMO Doc. MSC 88/26, 15 December 2010, para. 11.35. 74

Statement of the delegation of Singapore (note 67).

75

Ibid.

76

Parliament of Canada, Bill C-3 (note 43), para. 35.

77

Canada, Comments on Document MSC 88/11/2, IMO Doc. MSC 88/11/3, 5 October 2010, paras. 1 and 5; IMO, Report to the Maritime Safety Committee on its Eighty-Eight Session (note 64), Annex 27, 1 (Statement by the delegation of Canada). 78

McDorman (note 65), 5.

79

Report of the Maritime Safety Committee on its Eighty-Eighth Session (note 73), para. 11.37.

80

This may be inferred from the terms used in NORDREG, especially Arts. 2 and 5. See also Statement by the delegation of Canada (note 77), paras. 5 and 6.

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III. Canada’s Justification of NORDREG and its Merits In order to identify the proper legal basis for NORDREG, the legal point that must be clarified concerns the relationship between the SOLAS provisions and Article 234. One important feature of the criticism passed on NORDREG is the role of the IMO. Critics all insist on the existence of rules and procedures established under the IMO for the conception and adoption of SRS and VTS schemes and express their marked preference for those rules and procedures to be observed, meaning notably that they are adopted by the IMO. Germany, for example, insisted on the IMO being the only competent international body for the adoption of such schemes.81 According to Regulations 11 on SRS and 12 on VTS, the IMO is indeed intended to have a significant role.82 Nevertheless, the extent of its role is not entirely clear, which explains the dissension within the IMO. Undoubtedly, the IMO has embraced its task of standard-setting. Guidelines have been developed for both schemes, i.e. the General Principles for Ship Reporting Systems and Ship Reporting Requirements, Including Guidelines for Reporting Incidents Involving Dangerous Goods, Harmful Substances and/or Marine Pollutants83 and the Revised Guidelines for Vessel Traffic Services.84 However, neither the mere existence of guidelines nor the wording of the aforementioned guidelines is a clear indicator that the States must submit their planned schemes to the IMO for adoption. Hence, this second part intends to assess NORDREG’s justification against the background of the legal framework of SRS and VTS before considering the interest of the recognition procedure.

A. The General Legal Framework of Ship Reporting Systems and Vessel Traffic Services

It is useful to underline at the outset that SRS and VTS not only contribute to the safety of life at sea, as well as to safety and efficiency of navigation, but also to the 81

Report of the Maritime Safety Committee on its Eighty-Eighth Session (note 73), para. 11.35.

82

Ch. V, Regs. 11 and 12 SOLAS.

83

General Principles for Ship Reporting Systems and Ship Reporting Requirements, Including Guidelines for Reporting Incidents Involving Dangerous Goods, Harmful Substances and/or Marine Pollutants, IMO Res. A.851(20), 27 November 1997. 84

Guidelines for Vessel Traffic Services, IMO Res. A.857(20), 27 November 1997.

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protection of the marine environment:85 hence they are in line with the objectives of Article 234 UNCLOS. The question of hierarchy between SOLAS regulations and Article 234 is thus not a question of hierarchy between objectives, but only between procedures. The core question is therefore that of authority to conceive and adopt these schemes. Concerning SRS, a look at SOLAS shows that States are required to refer their proposal for the adoption of such systems to the IMO,86 which is also recognised as the only international body for developing guidelines, criteria and regulations on an international level for SRS.87 These guidelines and criteria shall be taken into account by the States.88 Yet, Regulation 11.4 stipulates that “[SRS] not submitted to the [IMO] for adoption do not necessarily need to comply with this regulation,” but States “implementing such systems are encouraged to follow, wherever possible the guidelines and criteria developed by the [IMO].”89 This formulation implies that the States may choose to not submit their planned schemes. Even though the wording of Regulation 11.4 is not helpful to determine the conditions under which the States are allowed to make this choice, the abstention from submitting of such schemes to the IMO seems to be a legal option. The legal framework for VTS is laid down in Chapter V, Regulation 12 SOLAS. The States are asked to follow, “wherever possible,” the guidelines developed by the IMO when planning and implementing VTS,90 but there is no submission requirement. However, “the use of VTS may only be made mandatory in sea areas within the territorial sea of the coastal State.”91 Drawing on this provision, the United States and INTERTANKO criticise, with respect to the NORDREG regulation, the “confusion” caused by its unclear geographical limits, which, they argue, make it questionable whether it is mandatory beyond the territorial sea.92 Outside the territorial sea, SOLAS permits a mandatory VTS to be established only under Regulation 11 on SRS and 85

Ch. V, Regs. 11.1 and 12.1 SOLAS.

86

Ch. V, Reg. 11.2 SOLAS.

87

Ibid.

88

Ch. V, Reg. 11.3 SOLAS.

89

Ch. V, Reg. 11.4 SOLAS.

90

Ch. V, Reg. 12.3 SOLAS.

91

Ibid.

92

United States and INTERTANKO (note 67), para. 4.

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under Regulation 10 on ships’ routeing. By referring to IALA Guideline No. 197193 this is also mentioned by the United States and INTERTANKO.94 Since Regulation 10 is designed in the same manner as Regulation 11 on SRS, it raises the same questions of interpretation. In particular, it includes a provision according to which “ships’ routeing systems should be submitted to the [IMO] for adoption.”95 Furthermore, Governments implementing ships’ routeing systems not intended to be submitted to the [IMO] for adoption or which have not been adopted by the [IMO] are encouraged to take into account, wherever possible, the guidelines and criteria developed by the [IMO].96

Having said this, the legal basis for the Canadian decision to not submit NORDREG for prior approval by the IMO, as well as the prerequisites for the decision, still need to be identified. UNCLOS is usually considered as the framework convention of the law of the sea under which numerous specific treaties address specific aspects in a manner that must be consistent with the framework rules, even if the specific treaty predates them. SOLAS is one of these specific treaties. The legal basis for the possibility of non-submission granted by Regulation 11.4 – and Regulation 10.4 – may therefore be found in UNCLOS. This is also confirmed by broad references to general international law in Regulations 10, 11 and 12, indicating that “nothing in this regulation […] shall prejudice the rights and duties of Governments under international law or the legal regime of straits used for international navigation […].”97 In other words, precedence is given to those other rights and obligations of international law over the SOLAS provisions, including the submission requirement. UNCLOS is of course included in the cross reference to international law. This suggests that an analysis of its provisions is necessary in order to identify those granting States the possibility to adopt SRS and VTS without prior approval by the IMO. Canada takes the position that Article 234 UNCLOS permits the States bordering ice-covered waters to establish SRS and VTS without seeking prior IMO approval. It

93 International Association of Marine Aids to Navigation and Lighthouse Authorities (IALA), Establishment of a Vessel Traffic Service beyond Territorial Seas, Guideline No. 1071, December 2009, available at: http://www.iala-aism.org/chapo/publications/documentspdf/doc_263_eng.pdf (accessed on 26 July 2011). 94

United States and INTERTANKO (note 67), para. 5.

95

Ch. V, Reg. 10.4 SOLAS (emphasis added).

96

Ibid.

97

Ch. V, Regs. 10.10, 11.9 and 12.5 SOLAS.

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argues in particular that Article 234, being the lex specialis provision for ice-covered waters, takes precedence over Article 211.98 According to Article 211 (5), the coastal State may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the [IMO].99

Article 211 (6) gives the coastal States the right, regarding a special area within its EEZ, to “adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the [IMO], for special areas.”100 According to Article 234, the coastal State is not limited to such internationally negotiated rules and standards. On the contrary, the right of the coastal State to adopt its own laws and regulations is a unilateral right, not subject to pre-approval or review by the IMO.101 Canada, by comparing the coastal State’s powers under Article 234 with those under Article 211 (5) and (6), seems to address the consistency of NORDREG only with regard to its EEZ. Yet the geographical scope of the somewhat vaguely formulated Article 234, according to the most comprehensive interpretation of the terms of Article 234, extends not only to a State’s EEZ, but also to its territorial sea and, if applicable, international straits.102 While the territorial sea and international straits must be included in the comparison of the differentiated powers of the coastal State as a result of this interpretation of Article 234, SRS and VTS can be imposed in internal waters without question. According to Article 21, “the coastal State may adopt laws and regulations […] relating to innocent passage through the territorial sea,” in respect of, amongst other things “the safety of navigation and the regulation of maritime traffic” and “the preservation of the environment of the coastal State and the prevention, reduction

98

Canada, Comments on Document MSC 88/11/2 (note 77), para. 5.

99

Art. 211 (5) UNCLOS (emphasis added).

100

Art. 211 (6)(a) UNCLOS (emphasis added).

101

See also Bartenstein (note 29), 37; approving: McDorman (note 65), 8.

102

See Bartenstein (note 29), 45.

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and control of pollution thereof.”103 Laws and regulations referred to by Article 21 arguably cover those necessary to establish SRS and VTS.104 Article 21 may in fact be considered as the lex generalis applying to schemes other than sea lanes and traffic separation schemes contemplated by Article 22. Pursuant to Article 21, laws and regulations must be adopted “in conformity with the provisions of this Convention and other rules of international law.” Hence, it must further be asked whether these other provisions force the coastal State to seek prior approval by the IMO. Nothing in the wording of Article 21 suggests an approval obligation. Furthermore, since the cross reference of Regulations 11 and 12 embraces UNCLOS, the reference to other rules of international law in Article 21 cannot refer to Regulations 11 and 12 without creating a circular effect. Molenaar therefore rightly concludes that there is no approval role for the IMO being envisaged with respect to schemes established in the territorial sea.105 Nevertheless, States may unequivocally choose to submit planned schemes to the IMO for approval. The respect of transit passage in an international strait imposes a stricter regime upon the coastal State. Again the “laws and regulations relating to transit passage through straits, in respect of […] the safety of navigation and the regulation of maritime traffic,” which the coastal State may adopt according to Article 42,106 arguably cover those necessary to establish SRS and VTS.107 Article 41 on sea lanes and traffic separation schemes provides however that the coastal State has to refer its proposals to the IMO for adoption before legislating.108 This is relevant, since Article 42 includes, as far as regulation of maritime traffic is concerned, a reference to Article 41.109 It must therefore be concluded that under UNCLOS the State bordering an international strait has no unilateral power to adopt SRS and VTS.110

103

Art. 21 (1)(a) and (f) UNCLOS.

104

Eric Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 203.

105

Ibid., 204.

106

Art. 42 (1)(a) UNCLOS.

107

Implicitly Molenaar (note 104), 290.

108

Art. 41 (4) UNCLOS.

109

Art. 42 (1)(a) UNCLOS.

110

See also Molenaar (note 104), 290.

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With respect to the comparison with Article 211, it is questionable whether laws and standards establishing SRS and VTS constitute “generally accepted international rules and standards” in the sense of Article 211 (5) or “international rules and standards or navigational practices made applicable” in the sense of Article 211 (6)(a). Usually these rules and standards referred to by both provisions are associated with aspects such as construction, design, equipment and manning (CDEM) and discharge of vessels, aspects that are quite different from ship tracking, information exchange and traffic management operated through SRS and VTS. Apart from guidelines, there are no international rules and standards on SRS and VTS that could be considered as being “generally accepted” in the sense of Article 211 (5), since such schemes are tailor-made for the needs of a particular region. Consequently, unilateral, but internationally accepted, action under Article 211 (5) is excluded with respect to the establishment of SRS and VTS.111 SRS and VTS – the latter within an SRS or a ships’ routeing scheme – may however be established within the framework of a special area as “navigational practices” under Article 211 (6)(a) or (c). In both cases, the role of the IMO is clear. Ordinary navigational practices must be “made applicable, through the [IMO],” according to Article 211 (6)(a), thus excluding any unilateral designing of these schemes. Extraordinary navigational practices are approved in the course of the procedure provided for by Article 211 (6)(c) with respect to additional laws and regulations for a special area. In summary, under the general rules, the coastal State may establish SRS and VTS applying in its territorial sea without prior approval by the IMO. Prior approval is however required for SRS and VTS to be established in the EEZ and in international straits.

B. NORDREG and Article 234

Obviously, Canada’s comparison between Articles 211 and 234 UNCLOS is intended to emphasise the non-involvement of the IMO under the latter provision. If Canada is correct and NORDREG qualifies under Article 234, it may indeed proceed unilaterally. Thus, as stressed by McDorman, the core question is whether the NORDREG regulation falls under Article 234.112 McDorman analyses the issue, 111

Ibid., 364.

112

McDorman (note 65), 9.

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yet without answering all questions he raises. This section aims at adding some exploratory comments on his analysis. First McDorman states that the objective of Article 234 is to allow the coastal State the adoption of laws and regulations to enhance the protection of the marine environment, while there is no indication of whether these laws and regulations must be ‘necessary’ to achieve this goal or whether it would be sufficient that they are ‘important’ or ‘useful’. It may be argued, according to McDorman, that in view of the recognised objective of the protection of the marine environment, a broad interpretation allowing for merely useful measures is acceptable. By contrast, the fact that Article 234 constitutes an exception to the general rule of Article 211 may favour a narrow interpretation: requiring the measures to be necessary. The view advanced here is that it seems possible to reconcile these two competing considerations with a narrow interpretation of the scope of Article 234 combined to a broad interpretation of the rights granted to the coastal State under Article 234. A narrow interpretation of the section reading where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance

takes into account the fact that Article 234 was intended to give the coastal States no extraordinary rights except in relation to particular sensitive ice-covered polar regions. Application of Article 234 must thus be strictly confined to those regions where such conditions prevail, whereas in all other sensitive areas Article 211 (5) and (6) may be brought to bear. Where Article 234 is relevant, however, a broad interpretation of the rights granted to the coastal State is particularly suited to achieving the goal of an enhanced protection of the polar marine environment. The original rationale of Article 234 is, according to McDorman, another element suggesting a narrow interpretation.113 The provision was indeed introduced to UNCLOS in order to give an international legal basis to Canada’s AWPPA, which was mainly concerned with discharge and CDEM measures. These were common measures at the time of negotiating UNCLOS, as opposed to SRS and VTS, both of which were still in their infancy. It seems however possible to argue that even though 113

Ibid., 10.

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SRS and VTS were not of the same wide-spread use in the 1970s as they are today, their development was foreseeable with technological progress having increased considerably between the fledgling experiences with such technology and the drafting of UNCLOS. If Article 234 was intended to be limited to discharge and CDEM measures, this could have been made clear in the wording by then. Moreover, other provisions make reference to “navigational practices,” a term which apparently includes SRS and VTS.114 It must also be taken into consideration that one important feature of Article 234 is the particular balance of navigational and protective interests, which are both subject to development in the face of progressive scientific findings and technological possibilities in addition to the evolving pressure on the environment. The evolving character of the measures taken under Article 234 can even be said to be rooted in the provision itself. The laws and regulations the coastal State may adopt and enforce under Article 234 must conform to two conditions, the first being that they must be “based on the best available scientific evidence.” McDorman rightly notes that it is not clear what kind of relationship must be met between the law or regulation and the scientific evidence. Singapore asked to be provided with “empirical data […] to demonstrate how making NORDREG mandatory would materially help to achieve” the goal of Article 234.115 It seems that the wording of Article 234 does not impose too heavy a burden on the coastal State by requiring the measure to be based on scientific evidence. It is questionable whether it imposes the threshold of necessity, as suggested by the Singaporean formulation.116 SRS and VTS are known to enhance safety of navigation and thus to reduce casualties with negative consequences for the marine environment. Only those schemes which are mandatory may be enforced against the small – but arguably worrying – percentage of vessels not abiding by them on a voluntary basis. This kind of evidence should be sufficient. The second condition, i.e. the obligation to pay “due regard to navigation and the protection and preservation of the marine environment,” raises difficult questions of weighing the contradictory interests of freedom of navigation and protection of the marine environment. It is not the purpose of the present paper to delve into these questions in an abstract manner in order to define a comprehensive line of argumen114

Molenaar (note 104), 364.

115

Statement by the delegation of Singapore (note 67) (emphasis added).

116

Ibid.

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tation; this has been done elsewhere.117 Instead, the concrete doubts cast by Singapore on the consistency of NORDREG with the due regard obligation are addressed. Singapore is concerned that measures such as NORDREG may compromise the freedom of navigation in violation of Article 234. As McDorman points out, this view presumes “that navigation considerations create a major or significant constraint on an Arctic coastal State.”118 Given the formulation of the due regard clause of Article 234, these constraints are arguably not as burdensome as under the regimes of innocent or transit passage. The due regard clause indicates that a balance must be struck between considerations of navigation and of environmental protection, the latter enjoying greater weight within Article 234 than in any other regime of UNCLOS balancing these two antagonistic considerations.119 Under Article 234, the coastal State may thus interfere with navigation to an extent that is certainly incompatible with the concept of freedom of navigation. The Singaporean argument is therefore based on false assumptions. Moreover, the balance struck by NORDREG seems consistent with Article 234. SRS and VTS schemes are of such common use that their interference with navigation – if ever their interaction with navigation is perceived as such – is negligible. As McDorman puts it, “the[ir] global proliferation suggests that the NORDREG system meets the Article 234 ‘due regard to navigation’ as it interferes with navigation in a manner that has been accepted.”120 The transmission of the requested information is not an unusual task for the vessels, not least because Canada made sure to comply with the IMO guidelines and criteria for VTS.121 The high compliance rate under the voluntary regime indicates that the burden is considered proportional to the advantage derived from the services provided.122 Furthermore, the insurance companies would arguably decline the insurance of vessels which do not report to NORDREG.

117

Bartenstein (note 29).

118

McDorman (note 65), 12.

119

As already argued in Bartenstein (note 29), 45; approving: McDorman (note 65), 12.

120

Mc Dorman (note 62), 12.

121

Canada, Comments on Document MSC 88/11/2 (note 77), para. 5.

122

This seems also to be the opinion of German stakeholders of Arctic navigation, private and public, according to informal discussions held with Canadian officials in February 2011, which the author attended.

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However, one consequence of the mandatory character of NORDREG is that a vessel considered to not conform to the Canadian rules on Arctic navigation and thus deemed not fit for navigating in the Canadian Arctic could be denied clearance to proceed.123 This necessity of obtaining clearance may be perceived as an unacceptable interference with navigation and a violation of the obligation to pay due regard to navigation under Article 234, particularly in a zone beyond the territorial sea.124 In fact, the clearance obligation can be viewed as a veiled authorisation obligation which clearly contradicts the concept of freedom of navigation. However, as already mentioned, the due regard clause aims at balancing competing interest by giving particular weight to environmental considerations. A look at concepts of environmental law may give some complementary interpretative guidance. The requirement of prior authorisation for hazardous commercial activity is a common feature in domestic environmental law. It provides the State with detailed descriptions of the planned activities and thus enables informed decision-making. This kind of procedure gives form to the principle of prevention, a core principle of environmental law. This same idea of prevention also explains the Canadian requirement of clearance. It is not Canada’s intent to frustrate navigation in its Arctic waters. Neither would it be in its interest to prohibit international navigation altogether, nor would it be consistent with the due regard obligation of Article 234, which excludes complete prohibition. Canada is however interested in making sure, within the limits of the due regard obligation, that navigation in the dangerous and ecologically sensitive Arctic waters is as safe as possible. The due regard obligation is operationalised by granting an authorisation of navigation in principle, subject to a certain number of conditions. Prior authorisation is among the most effective means of preventative action and therefore no longer questioned in domestic law. It may also turn out to be one of the few tools for controlling Arctic navigation in an effective way. Other control mechanisms, which are effective in more temperate regions, may not be suitable for the Arctic. In particular, port State control is not practicable, since it requires more developed port infrastructure than the Canadian Arctic currently possesses. It must be recalled that navigation is not prohibited as a matter of principle, but only in case of disrespect of safety conditions – deemed reasonable by the shipping industry, which generally conforms to them. In this 123

Art. 126 Canada Shipping Act 2001 (note 57).

124

See also McDorman (note 65), 12.

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respect it may be time to rethink the interpretation of the law applicable to Arctic navigation. Admittedly, authorisation requirements have always been an issue of tremendous sensitivity in the law of the sea, even where questions of territorial integrity and political independence are at stake.125 Hence, the interest of environmental protection might be considered as too lightweight. However, as Scovazzi rightly observes, things have changed, since Grotius developed the principle of freedom of the sea in the 17th century.126 New aspects condition the general situation in which navigation unfolds, environmental aspects being among them, as reflected by numerous provisions and especially by Part XII UNCLOS. In fact, the principle of freedom of navigation emerged at a time where navigation was not yet a major source of pollution. Furthermore, navigation must be viewed today against the backdrop of the emerging concept of common concern of humanity, building on the recognition that all States share the responsibility for the health and integrity of the Earth’s ecosystems.127 In addition, Principle 2 Rio Declaration stipulates that States have, in accordance with the Charter of the United Nations and the principles of international law, […] the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.128

In its Nuclear Weapons advisory opinion the International Court of Justice (ICJ) confirmed the customary status of Principle 2.129 Closely related to it is the principle 125

The modern controversial discussion began in the 17th century with the so-called ‘battle of the books’ between Hugo Grotius, Mare Liberum (1609) and John Seldon, Mare Clausum (1635) and their followers. See Ram Prakash Anand, Origin and Development of the Law of the Sea: History of International Law Revisited (1983), 102. More recently, the proposition of a prior authorisation requirement for the passage of warships in the territorial sea did not make it into UNCLOS. See Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), para. 21.10. 126 Tullio Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Considerations, International Journal of Marine and Coastal Law (IJMCL) 19 (2004), 1, 6–7. 127 See Jutta Brunnée, Common Areas, Common Heritage, and Common Concern, in: Daniel Bodansky/Jutta Brunnée/Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (2007), 550, 564 et seq. 128 Declaration on Environment and Development, 13 June 1992, ILM 31 (1992), 876 (Rio Declaration). 129

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 29.

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of prevention, which is not limited to transboundary harm contrary to Principle 2, but includes the obligation to prevent damage to the environment within the State’s own jurisdiction.130 De Sadeleer considers that the reasoning of the ICJ in the GabčíkovoNagymaros Case131 allows drawing the conclusion that the principle of prevention is part of the customary law as well.132 In UNCLOS, the general obligation of preventive action is reflected in Article 192 and particularly in Article 194 (3)(a), which details preventive measures with respect to vessel-source pollution. The obligation of prevention does not prescribe a precise action to be taken by the States and therefore may often remain unheeded. In order to give effect to it, it may be useful to revisit Lowe’s ‘modifying norms’133 and de Sadeleer’s ‘directing principles’.134 According to de Sadeleer, these norms or principles “spur public policies” or “allow courts to weigh and reconcile highly divergent interests.”135 According to Lowe, they “can be used by a tribunal to modify application of other norms” and thus “colour the understanding of the norms that [they] modify.”136 With respect to Article 234, it may thus be argued that the preventive idea should inform the interpretation of relevant provisions on powers and obligations of States with regard to protection of the environment. In the context of tremendous physical changes in the Arctic and increased technical possibilities coming together with unexpected threats, the interpretation and application of Article 234 should bring to bear the obligation of prevention which is not only part of the international customary law, but also confirmed by UNCLOS. As long as it is ensured that the prescriptions of the coastal State are reasonable, in the sense that they are based on scientific evidence and do not amount to an interdiction of principle, a State must have the necessary means to enforce them effectively, including by enforcing a prior clearing requirement against sub-standard vessels. 130

Philippe Sands, Principles of International Environmental Law (2nd ed. 2003), 246.

131

ICJ, Case concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 140. 132

Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2002), 67.

133

Vaughan Lowe, Sustainable Development and Unsustainable Arguments, in: Alan Boyle/David Freestone (eds.), International Law and Sustainable Development (1999), 19, 33. 134

de Sadeleer (note 132), 249.

135

Ibid., 250.

136

Lowe (note 133), 34.

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In short, the unilateral adoption of SRS and VTS intended to enhance the prevention of vessel-source pollution in Arctic waters, including a clearance obligation, seems consistent with Article 234.137 This possibility of action, without any approval by the IMO under Article 234, also explains why Regulations 11.4 and 10.4 regulate non-submission, while respectively encouraging conformity with the guidelines and criteria developed by the IMO and expressing a preference for the adoption by the IMO. Article 234 is one, indeed arguably the only, legal basis for unilateral action to which is deferred by means of Regulations 11.4 and 10.4. It is, furthermore, one feature to which the safeguard clauses of Regulations 10.10, 11.9 and 12.5 apply. Hence, bearing in mind the equilibrium between environmental and economic interests which prevails in modern international law, the most comprehensive interpretation of Article 234 is that the unilateral power of the Arctic coastal State has precedence over the general principle of international standard setting.

C. Recognition: Articulating Article 234 and Chapter V SOLAS

Submission for approval by the IMO is not the only procedure provided for in Chapter V SOLAS. An SRS which is not submitted for approval may be submitted for recognition by the coastal State.138 This procedure is optional, but it is certainly of interest for the international community as well as for the coastal State, explaining Canada’s decision to seek recognition for NORDREG.139 A certain number of considerations may have motivated this decision. The signification of such recognition is not easy to determine. On the one hand, the United States takes the view that it does not constitute “an assessment by the [IMO] of the legitimacy of the system or the validity of its legal basis.”140 On the other hand, while the procedure of recognition implies information of the IMO Member States on the initiative, a mere information role of the procedure would be inconsistent with

137

On this point doubtful: McDorman (note 65), 12.

138

Ch. V, Reg. 11.4 SOLAS.

139

See Statement of the Delegation of Canada (note 77), 1; see also IMO, Information on the Mandatory Canadian Ship Reporting System in Canada’s Northern Waters (NORDREG), IMO Doc. SN.1/Circ.291, 5 October 2010. 140

Report of the Maritime Safety Committee on its Eighty-Eighth Session (note 73), para. 11.38.

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the meaning of the word ‘recognition’, which also connotes admitting the validity.141 As a consequence the following hypothesis is put forward: in defiance of the opinion of the United States, recognition implies some kind of endorsement of the unilateral action by the international community. This endorsement may appertain to legitimacy as well as legality, with fluid boundaries. Even if only the legitimacy of the measure has been recognised, this may enhance the chances that it is observed, at least in the long run, in the case of the international recognition translating into imitation and propagation.142 Without testing the hypothesis that recognition implies some kind of endorsement against the backdrop of State practice, some further remarks on the potential role of recognition seem appropriate. The procedure of recognition allows the coastal State to send a signal of good faith. Since it invites the international community to recognise its SRS, the coastal State is certainly convinced of the measures’ consistency with law as well as its necessity and appropriateness. Its readiness to discuss the question with potentially reluctant States indicates that it is also convinced that its arguments may satisfy these States. Furthermore, the procedure is the appropriate moment to present the ‘best available scientific evidence’ on which measures taken under Article 234 must be based. With regard to NORDREG, the percentage of vessels which did not conform to it on a voluntary basis may be mentioned. If an increase of this percentage is feared, this should be substantiated. The recognition procedure also allows Canada to outline the balance that its regulation is intended to establish in order to conform to the second obligation set forth in Article 234: to pay due regard both to navigation and to the protection and preservation of the marine environment. Having said this, the possible role of the possibility of recognition as provided for by Chapter V, Regulation 11.4 SOLAS becomes apparent. Although unilateral action is clearly allowed under Article 234 UNCLOS, SOLAS gives the coastal State the potential of smoothing the sharp edges of unilateral measures by international recognition. Hence, the coastal State’s legal position is not constricted, but the concerns of the international community that the measures are justified are met by a procedure 141 Philip Babock Gove (ed.), Webster’s Third New International Dictionary (2002), 1896, see entries ‘recognition’ and ‘recognize’. 142

See the interesting analysis on this topic by Daniel Bodansky, What is so Bad about Unilateral Action to Protect the Environment?, European Journal of International Law 11 (2000), 339.

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within the relevant international organisation. This means also that even without any endorsement function, the recognition of non-submitted SRS seems to be an intelligent articulation of unilateral legal power and multilateral political monitoring. Nevertheless, unilateral action has shortcomings, even if it unfolds legally and in a relatively conciliatory environment.

IV. Future Prospects Unilateral initiatives of the coastal State are certainly one option to react to threats upon the marine environment. Due to unilateral action, the coastal State has a direct impact on the threats it has identified and deems dangerous. Yet, unilateral action in zones where other States have rights, which is most often the case in maritime zones, must always be shaped in a way that is respectful to these rights. Even where no rights of other States are affected, unilateral action should avoid infringing upon political, economic and other interests and sensibilities of other States. In some situations this may however be impossible, in others, inconvenient. It is therefore important to evaluate NORDREG in this broader context by outlining briefly some shortcomings of unilateral regimes, before turning to the negotiations of the Polar Code which are underway within the IMO, and then assessing the more general question of the appropriate approach for governing the legal protection of the marine Arctic.

A. Shortcomings of Initiatives such as NORDREG

Although NORDREG and the AWPPA are certainly interesting initiatives, they are far from being a comprehensive answer to all ecological threats to the marine Arctic. Hull strength and equipment requirements are but the most basic aspects of Arctic navigation, while discharge interdictions only regulate the most striking pollution problems. Even though the seriousness of these problems may not be overestimated, the marine Arctic is threatened by many other shipping side-effects, such as pollution by noxious anti-fouling systems, by alien species travelling on the hull or in ballast waters, by the ships’ exhaust, and by noise, interfering particularly with the communication

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of cetaceans. Some of these problems have been addressed by IMO instruments,143 while initiatives for other problems are underway within the IMO.144 The international level is certainly the most appropriate to deal with these forms of pollution and disturbance, since they constitute a general threat to the marine environment, although the ecological carrying capacity of the Arctic environment may be more limited than that of more temperate and less geographically enclosed zones. Before reflecting on the appropriateness of national initiatives, it seems important to mention that even though NORDREG has been, and will continue to be, referred to as a unilateral measure in this paper, it certainly constitutes an atypical, attenuated form of unilateral action. Since it is arguably adopted on the basis of Article 234, its parameters are agreed upon multilaterally. Yet Article 234 only outlines the measures and gives the coastal State the power to define their precise form in a unilateral manner. As a matter of principle, multilateral action is preferred by international environmental law, when it comes to address environmental problems which affect more than one State.145 This preference should not be used, however, as an argument against unilateral action in every situation. Unilateral action is appreciated by the States for its effectiveness, because such measures can be taken expeditiously and are not diluted by international trade-offs. Even from a multilateral point of view, unilateral measures are sometimes profitable, if not necessary. Unilateral measures may be useful as a temporary answer to a given problem or may turn out, in retrospect, to have been only provisional when the unilateral action served as a catalyst for multilateral action. This effect is not to be underestimated and, as Bodansky observes, it is indeed a common feature of international law, which very often evolves thanks to

143

International Convention on the Control of Harmful Anti-fouling Systems on Ships, 5 October 2001, IMO Doc. AFS/CONF/26, Annex; Annex VI MARPOL (Regulations for the Prevention of Air Pollution from Ships). 144 Not yet entered into force: International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 13 February 2004, see Secretariat, Adoption of the Final Act and any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference, IMO Doc. BWM/CONF/36, Annex, 16 February 2004. The problem of noise pollution has been discussed within the Marine Environment Protection Committee (MEPC) since 2008 upon an initiative of the United States (see United States, Minimizing the introduction of incidental noise from commercial shipping operations into the marine environment to reduce potential adverse impacts on marine life, IMO Doc. MEPC 58/19, 25 June 2008) and has translated into an agenda item of MEPC since 2009 (Noise from commercial shipping and its adverse impacts on marine life). 145

Principle 7 cl. 1 Rio Declaration; Bodansky (note 142), 343 et seq.

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unilateral initiatives.146 Furthermore, since it is not subject to trade-offs, as is multilateral action, it may sometimes remain indispensable even though multilaterally agreedupon regimes exist, be it to complement these regimes by filling in lacunae or by imposing stricter standards where the regime provides for merely minimal standards, based on the lowest common denominator. Yet decisions taken on an international basis may also benefit from greater legitimacy,147 which arguably improves the compliance rate. This is a particularly important aspect in the realm of the law of the sea, since most international rules and standards rest upon the flag State principle. Yet the flaws associated with this core principle of the law of the sea are well known. The failure to eradicate them takes the discussion back to the aforementioned complementary role of unilateral action of the coastal States as well as of port States, whose jurisdiction is a major gain for the modern law of the sea. As König points out with a view to Article 218 UNCLOS, contrary to the coastal State which takes action first and foremost in its own interest, the port State acts on behalf of the international community, defending its interests.148 This is true for the problem of discharge, contemplated by Article 218, but it is increasingly true also for CDEM standards. Systematic physical inspection of foreign vessels by the port State has been growing over the last decades due to increase in the regional cooperation of the port States under diverse regional memoranda of understanding (MoU).149 The participating port authorities coordinate their control of compliance with standards agreed upon in international instruments,150 which constitute national conditions of access. Even though it may be questionable whether 146

Bodanksy (note 142), 344 et seq.

147

Ibid., 341.

148

Doris König, Durchsetzung internationaler Bestands- und Umweltschutzvorschriften auf Hoher See im Interesse der Staatengemeinschaft (1990), 204 et seq. (particularly 237–238); see also Doris König, The Enforcement of the International Law of the Sea by Coastal and Port States, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 62 (2002), 1, 6. 149

Nine memoranda of understanding on port State control exist: Abuja MoU, Black Sea MoU, Carribean MoU, Indian Ocean MoU, Mediterranean MoU, Paris MoU, Riyadh MoU, Tokyo MoU Asia Pacific Region, Viña del Mar Agreement Latin American Region. For a good overview of the practice of port State control, see Ho-Sam Bang, Is Port State Control an Effective Means to Combat Vessel-Source Pollution?: An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control, IJMCL 23 (2008), 715. 150 See for example Sec. 2 Paris Memorandum of Understanding on Port State Control, 26 January 1982, ILM 21 (1982), 1; Memorandum of Understanding on Port State Control in the Asia-Pacific Region, 1 December 1993, available at: http://www.tokyo-mou.org/ (accessed on 1 September 2011).

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this is an exercise of port State jurisdiction stricto sensu, the fact is that the port State takes advantage of the anchoring of foreign vessels in its ports and contributes to the enforcement of international standards by enforcing its access conditions. Hence, the difference between port access conditions, which adhere to international standards, and coastal State measures such as NORDREG and the AWPPA, applicable to waters which are under the jurisdiction of the coastal State, is that the latter contribute to the fragmentation of standards applying to navigation. Given that the coastal State may resort, under Article 234 UNCLOS, to CDEM measures which are not based on international rules and standards – because such standards do not exist – the risk of fragmentation is particularly significant. It potentially hampers international navigation. Fragmentation is not only a synonym for a patchwork of standards causing the practical difficulty for operators to keep track of them, but fragmentation can also result in incompatible standards. This situation is dreaded by the international shipping industry, which always lobbies for internationally agreed standards, including for Arctic shipping. The statements made within the IMO by INTERTANKO and BIMCO with respect to NORDREG certainly stem from this motivation. Yet internationally agreed-upon standards suppose coordinated action, and, as Molenaar puts it, “so far, the Arctic marine area or the Arctic Ocean may not have been viewed or addressed as a unity for shipping.”151 A more benevolent reading would be to state that such acknowledgment has barely been translated into concrete action. As mentioned earlier, except for the recommendatory Guidelines for Ships Operating in Polar Waters, no IMO instrument specifically addresses the problem of Arctic shipping. This may however be about to change, thanks to the Polar Code which is currently being negotiated (see infra, next section). When it comes to protecting the marine environment against the negative impacts of navigation, classic standard setting, as reflected by the Polar Code, is one option. Some aspects of navigation may be addressed efficiently in this way, but others require a different approach, though both are equally subject to the tension between unilateral and multilateral action. Indeed, emerging protective management tools, such as the different kinds of marine protected areas (MPAs), are based on the characteristics and needs of a given ecosystem, rather than focussing exclusively on the ship and its route. However, since ecosystems are not concerned with human-made political 151

Molenaar (note 104), 312.

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boundaries, legally determined maritime zones or shipping routes, the alone-acting coastal State may be unable to establish effective regimes. Ecosystems often clash with the zonal approach of the law of the sea and the corresponding nuanced rights and obligations of different categories of States. Often, the most appropriate – and sometimes the only competent – level for the establishment of MPAs is therefore the international level. According to UNCLOS, this is true with respect to MPAs within the EEZ and even more if they extend to high sea areas.152 While the establishment of an MPA up to 12 nautical miles falls into the jurisdiction of the coastal State acting within its marine territory, protective measures which have an impact on international navigation must respect the right of innocent passage in the territorial sea and the right of transit passage in an international strait.153 According to the wording of Article 22 UNCLOS, sea lanes and traffic separation schemes can be designated only “where necessary having regard to the safety of navigation.”154 Proelss concludes that they cannot be established where required for reasons of protecting the marine environment,155 whereas Molenaar argues that they may also be established for environmental purposes.156 Safety of navigation was apparently not the only consideration with respect to such navigational schemes, as Molenaar points out with a view to Article 22 (2) (on vessels with noxious cargo), to Article 21 (1)(a) (the lex generalis to Article 22) and to Article 211 (1). It is submitted here that in the end, the difference between the two readings might be negligible, since a State may be interested in ensuring the safety of navigation for the sake of the ship and crew as well as for the sake of the marine environment.157 Since Article 41 (1) provides for a condition similar to Article 22, the same reasoning seems appropriate. It is further important to note that in the territorial sea, sea lanes and traffic separation schemes are to be designated by taking into account, amongst other things,

152

Art. 211 (6) UNCLOS.

153

Arts. 17 et seq. UNCLOS.

154

Art. 22 (1) UNCLOS.

155

Alexander Proelss, Meeresschutz im Völker- und Europarecht (2004), 92; see also: Nordquist (note 125), para. 22.8 (a). 156 157

Molenaar (note 104), 204.

In this sense also Daniel Bodansky, Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond, Ecological Law Quarterly 18 (1991), 719, 751.

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the recommendations of the IMO,158 whereas such schemes need approval in an international strait159 and the EEZ.160 Respecting the right of innocent passage in the territorial sea, of transit passage in an international strait and of freedom of navigation in the EEZ respectively also means, however, that navigation may not be prohibited altogether, which casts doubt on the possibility of the coastal State to create an MPA where navigation is excluded, at least with respect to large MPAs. However, as the holder of the navigational rights, the international community may decide, by way of consent, to modify rights and obligations of all or part of its members in all maritime zones, including by consenting – often as part of a PSSA – to ‘areas-to-beavoided’.161 The creation of one or more Arctic PSSAs with a comprehensive set of measures tailored to the needs of the Arctic ecosystems and the challenges of Arctic navigation may be an interesting option and has been repeatedly suggested.162 There is no doubt that such a comprehensive approach would be most welcome and complementary to standards currently elaborated within the IMO under the designation of Polar Code.

B. The Future Polar Code

The negotiations of the Polar Code aim at complementing existing rules and standards, mostly those of SOLAS and MARPOL, with a comprehensive and mandatory set of standards addressing particular aspects of Arctic navigation. The idea of agreeing upon such standards dates back at least to the first discussions of what evolved into the 2010 Guidelines for Ships Operating in Polar Waters. Canada spearheaded a multinational drafting initiative by submitting to the IMO in 1998 a document entitled “Development of a Code on Polar Navigation – The International

158

Art. 22 (3)(a) UNCLOS.

159

Art. 41 (4) UNCLOS.

160

Art. 211 (6) UNCLOS.

161

These areas are established by way of ships’ routeing measures based on Ch. V, Reg. 10 SOLAS.

162

Louise Angélique de La Fayette, Oceans Governance in the Arctic, IJMCL 23 (2008), 531, 562. Erik Molenaar, Arctic Marine Shipping: Overview of the International Legal Framework, Gaps, and Options, Journal of Transnational Law & Policy 18 (2009), 289, 320; Aldo Chircop, The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?, IJMCL 24 (2009), 355, 376.

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Code of Safety for Ships in Polar Waters.”163 Mindful of the shortcomings of the merely recommendatory guidelines, the IMO Sub-Committee on Ship Design and Equipment started, in 2009, the elaboration of a mandatory code for ships operating in polar waters,164 following the decision of the Maritime Safety Committee.165 The first substantive proposal was made by Germany.166 Canada submitted a comprehensive document on the structure and contents of the new code shortly thereafter.167 Both States have generally proven very active.168 The elaboration of the Polar Code is ongoing and, according to the Sub-Committee, still only in a “preliminary stage.”169 Most aspects negotiated are essentially technical, which does not prevent political considerations from surfacing from time to time. Current negotiations are concerned inter alia with the method by which the Polar Code is to be made mandatory. The term ‘code’ is indeed somewhat misleading, since it seemingly refers to a stand-alone instrument, which is not what the negotiations are aiming at. The set of standards resulting from the negotiations is rather to be incorporated into existing conventions, completing them in respect to polar navigation. While incorporation of safety related provisions in SOLAS is considered to be straightforward, incorporation of pollution related provisions in MARPOL raises technical difficulties due to State participation, which varies in the different Annexes.170 Another question discussed is whether vessels operating in ice-free polar 163 See Tullio Scovazzi, Towards Guidelines for Antarctic Shipping: A Basis for Cooperation between the Antarctic Treaty Consultative Parties and IMO, in: Davor Vidas (ed.), Implementing the Environmental Protection Regime for the Antarctic (2000), 243, citing the document: International Code of Safety for Ships in Polar Waters, IMO Doc. DE 41/10, Annex 1, March 1998, 3; for the early negotiations see Lawson W. Brigham, The Emerging International Polar Navigation Code: Bi-polar Relevance?, in: Davor Vidas (ed.), Protecting the Polar Marine Environment (2000), 244, 248 et seq. 164

See Outcome of the 32nd Antarctic Treaty Consultative Meeting (ATCM XXXII), IMO Doc. DE 53/18, 22 July 2009. 165

Report of the Maritime Safety Committee on its Eighty-Sixth Session (note 70), para. 23.32.

166

Germany, Development of a Mandatory Code for Ships Operating in Polar Waters, IMO Doc. DE 53/18/1, 11 November 2009. 167 Canada, Proposed Framework for the Code for Ships Operating in Polar Waters, IMO Doc. DE 53/18/2, 20 November 2009. 168

See the following discussion papers: Canada, Discussion Document for Progressing Development of a Mandatory Code for Ships Operating in Polar Waters, IMO Doc. DE 55/INF.4, 17 December 2010, and Germany, Mandatory Code for Ships Operating in Polar Waters, IMO Doc. DE 55/12/6, 17 December 2010. 169

Report to the Maritime Safety Committee, IMO Doc. DE 55/22, 15 April 2011, para. 12.1.

170

Chairman, Summary of discussions, IMO Doc. DE 55/12, 10 November 2010, para. 3.

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waters should also be subject to the code standards.171 This issue is related to the redefinition of ice classes and the requirement of an ice certificate, an issue in which Canada has shown particular interest,172 probably since such a certificate builds on elements similar to those imposed in Canadian Arctic waters through the zone/date matrix of the Shipping Safety Control Zones Order. The ice certificate concept will take the form of an operational manual contained within the Polar Code.173 Further, the risk- or goal-based approach, already advocated by the German proposal,174 is no longer called into question.175 In comparison with a norm-based or prescriptive approach, it has the advantage of flexibility. It is not so much the detailed norms which are decisive, but rather the achievement of the aim, i.e. fitness for Arctic navigation. This approach is distinctly preferred by the shipping industry and, some problematic discretion notwithstanding, provides useful leeway for technical innovation and continuing improvement. Various environmental aspects have also been the focus of the negotiations, with a considerable number of them submitted by a coalition of NGOs. Yet, questions such as the geographical boundaries of the waters covered by the Code, loss of cargo, black carbon emissions and discharge standards as well as voyage planning and operations aimed at avoiding interactions with cetaceans will not – or not immediately – be part of the Polar Code negotiations. This is either because there is an inherent risk of creating inconsistencies with other instruments, because they are already under discussion in other committees or because they should be considered by other committees first.176 Particularly the issue of voyage planning might thus be part of the discussions on the Polar Code at a later stage. Interestingly, the issue of vessel traffic monitoring and information systems promoted by a coalition of NGOs177 will be 171

Ibid., para. 4.

172

International Association of Classification Societies (IACS), The Ice Certificate Concept, IMO Doc. DE 55/12/11, 14 January 2011; Canada, Polar Classes, Ice Certification and Engine Power, IMO Doc. DE 55/14, 28 January 2011. 173

Report to the Maritime Safety Committee (note 169), para. 12.18.

174

See supra, note 166.

175

Report of the Maritime Safety Committee on its Eighty-Ninth Session, IMO Doc. MSC 89/25, 25 May 2011, para. 8.13. 176 177

Report to the Maritime Safety Committee (note 169), para. 12.13.

FOEI, IFAW, WWF and Pacific Environment, Vessel Monitoring and Traffic System, IMO Doc. DE/55/12/9, 14 January 2011.

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deliberated further during the negotiations.178 Even though this decision cannot be interpreted as endorsing NORDREG, an internationally agreed-upon tracking scheme might, in the long run, satisfy Canada and supersede its scheme confirming the catalyst role that unilateral action can play in the international standard setting process. Two politically sensitive features of the negotiations are worth noting, because they highlight the lack of coordination between the Arctic States. Firstly, the Russian Federation and Canada, two States heavily involved in discussions, approach the negotiations from two different points of departure, reflecting two differing experiences in Arctic navigation. Whereas the Russian Federation, in line with its experience and policy, takes navigation escorted by ice-breakers as a given,179 Canada, based on its experience in the Canadian Arctic, negotiates on the presumption that navigation will usually be unescorted.180 The type of navigation may have significant consequences for the establishment of standards. Given the political and economic implications, it might be difficult to come to an agreement on this point in an international forum such as the IMO. Secondly, the negotiations of the Polar Code are not spared from the debate surrounding sovereignty. The Russian Federation advocates introducing a clause into the preamble of the Polar Code which was initially proposed by Canada: “the Code is not intended to infringe on national systems of shipping control until a harmonized system is in place.”181 This safeguard clause is tailored to the Russian and Canadian requirements established on the basis of Article 234 UNCLOS. Canada favours the possibility of interlinking international and national requirements,182 referring especially to the Polar Ship Permit to Operate and related reporting obligations and national systems of navigational control – one cannot help thinking of NORDREG. Unsurprisingly, both proposals were criticised by the United States.183 178

Report to the Maritime Safety Committee (note 169), para. 12.13.

179

Ibid., para. 12.25.

180

Canada, Polar Classes, Ice Certification and Engine Power (note 172), para. 8.

181

Russian Federation, Procedure of Accounting for National Regulations, IMO Doc. DE 55/12/ 23, 1 February 2011. 182 Canada, Application of Requirements in the Mandatory Polar Code, IMO Doc. DE 55/12/7, 14 January 2011, paras. 7 and 15. 183

Secretariat, Report to the Maritime Safety Committee (note 169), para. 12.7.

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Even at this stage of technical negotiation, these considerations already complicate the search for an agreement. Such considerations will probably become even more important as the negotiations progress. A further sign of this may be the recently published Danish “Strategy for the Arctic,”184 which declares that Denmark may consider the adoption of unilateral measures based on Article 234 UNCLOS.185 Three of the five Arctic coastal States have therefore voiced their interest to maintain or establish their own rules with regard to navigation in their Arctic waters. Against the backdrop of significantly diverging interests of the States negotiating the Polar Code, with the five Arctic coastal States all having their own national agendas, it will be difficult to come to an agreement, despite the general consensus on the necessity of protecting the Arctic against vessel-source pollution.

C. The Governance Approach to the Legal Protection of the Marine Arctic

As the preceding discussion shows, when it comes to choosing the governance approach for the legal protection of the marine Arctic against vessel-source pollution, neither the national nor the international level of standard setting has proven entirely satisfactory. Still, neither is dispensable. Due to the fact that navigation is an expansive activity taking place in a space which is divided by law into different maritime areas, “shipping in the Arctic is subject to multiple levels of governance,” as Chircop rightly observes.186 In addition to cooperation at a global level, as embodied by the IMO and numerous sectorial instruments, and action at a national level, as illustrated by the Canadian NORDREG regulation, the regional level of governance deserves some attention. Even though the Arctic States decided in 1996 to organise their cooperation through the Arctic Council,187 the regional level of governance appears, 184 Kingdom of Denmark, Strategy for the Arctic 2011–2020, 22 August 2011, available at: http:// um.dk/en/~/media/UM/English-site/Documents/Politics-and-diplomacy/Arktis_Rapport_UK_ 210x270_Final_Web.ashx (accessed on 14 October 2011). 185

Ibid., 18.

186

Chircop (note 162), 361.

187

Declaration on the Establishment of the Arctic Council (Ottawa Declaration), 19 September 1996, available at: http://arctic-council.org/filearchive/ottawa_decl_1996-3..pdf (accessed on 20 July 2011). The eight Member States of the Arctic Council, which have in common that at least part of their territory lies north of 60° latitude, are the United States of America, Canada, Denmark (Greenland), Norway, the Russian Federation, Iceland, Sweden and Finland. Only the first five are States with a

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from a strictly legal point of view, to be the least developed. Indeed, advancement realised within the Arctic Council has been primarily political and scientific in nature. The Arctic Council was deliberately established as a low-profile forum of cooperation, based merely on a declaration. It has been provided with very modest institutional structures, has been barely funded and deprived of the possibility of making mandatory decisions. This has not prevented the Arctic Council from becoming a driving force behind scientific research and exchange on Arctic issues. Many activities carried out under Arctic Council auspices, such as reports (i.e. the Arctic Marine Shipping Assessment (AMSA) issued in 2009), monitoring programmes (i.e. the latest pan-Arctic initiative on the polar bear) and assessment efforts (i.e. the report on black carbon emissions published in 2011), are all excellent sources of information for strategic decision making. Decision making itself is however limited to political engagements. This cautious approach to cooperation was apparently confirmed by the 2009 Tromsø Declaration, although it was done in a somewhat cryptic way and was only in relation to the governance of the ocean.188 It might, thus, seem vain to dwell on the stronger role that regional cooperation could play through both a stronger institutional structure and a stronger legal framework. After all, the basic prerequisite for strengthened Arctic cooperation is the political will of the Arctic States. Some recent developments may however shed a different light on the political will of the Arctic States. The completion, in May 2011, of the negotiation of the Search and Rescue Agreement marks, as mentioned earlier,189 the first time that a legally binding instrument has arisen out of cooperation within the Arctic Council. Of course, the conclusion of the agreement is owed to particular, helpful, circumstances. Human activities, including aeronautic and maritime traffic, have increased in the Arctic, multiplying the risk of emergencies. They quickly become a serious threat to coastline on the Arctic Ocean. See generally on the Arctic Council, David VanderZwaag, The Arctic Council at 15 Years, German Yearbook of International Law (GYIL) 54 (2011), 281. 188

Recital 8 Preamble Tromsø Declaration, 29 April 2009, available via: http://www.arctic-council. org/index.php/en/about/documents/category/5-declarations (accessed on 2 March 2012). This recital arguably responds to the Ilulissat Declaration, 28 May 2008, available at: http://arctic-council.org/ filearchive/Ilulissat-declaration.pdf (accessed on 20 July 2011), made by the five Arctic coastal States. 189

See supra, note 26 and corresponding text.

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human life, due to the unforgiving Arctic environment, and a danger for the ecosystems, given their particular sensitivity. A quick response is required in such situations and good cooperation may be decisive. The agreement consequently aims at structuring and coordinating the search and rescue operations among Arctic States, which is arguably the most effective way of dealing with emergencies in the Arctic.190 Even though the legally binding agreement on search and rescue has been an exceptional result of Arctic cooperation, it may turn out to be a persuasive precedent. Indeed, coordinating preventative action in order to avoid emergencies is apparently the next step, according to the decision to develop an instrument on Arctic marine oil pollution preparedness and response announced at the last ministerial meeting of the Arctic Council in May 2011.191 Sporadic cooperation could create a spill-over effect and eventually result in a global approach.192 Such a spill-over effect may already be at work, since the Arctic Council recently announced that the Arctic States would once more resort to negotiating regional agreements as new cooperative needs emerge.193 This seems to confirm the departure from strictly political and scientific cooperation under the Arctic Council. Another sign that the tide may have turned could be the decision of the Arctic Council to strengthen its institutional structure by establishing a standing Arctic Council secretariat in Tromsø, Norway, which should be operational by 2013.194 The rotation of secretariat support functions between the Member States, along with the rotation of the chairmanship, has apparently proven no longer satisfactory. The Arctic Council nevertheless remains the “high level forum”195 it has been from the beginning. While its institutional structure will emerge stronger than it is currently, the decision does not introduce a qualitative change since the secretariat, whether rotating or standing, has a merely supportive function. Qualitatively transforming the Arctic Council into an international organisation – very different from its current state – 190

Recital 8 Preamble Search and Rescue Agreement.

191

Arctic marine environment, para. 1 Nuuk Declaration, 12 May 2011, available at: http://www. arctic-council.org/filearchive/Nuuk%20Declaration%20FINAL.pdf (accessed on 28 September 2011). 192

A cautious parallel may be drawn with the spill-over effect of the integration of the coal and steel production on the European integration. See Franz C. Mayer/Imke Stanik, European Union, Historical Evolution, MPEPIL, available via: http://www.mpepil.com (accessed on 31 August 2011). 193

Strengthening the Arctic Council, para. 2 Nuuk Declaration (note 191).

194

Ibid, para. 3.

195

Para. 1 Ottawa Declaration (note 187).

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would have implied the creation of an organ with the capacity to form a genuinely collective will. For the time being, the Arctic States’ ministers will continue to make joint declarations expressing the separate, albeit concordant will of the Member States. These latest developments are of a different nature: the first being normative and the second institutional. Both are, however, a sign of strengthened regional cooperation. The establishment of a “task force to implement the decisions to strengthen the Arctic Council” is another sign.196 The option of reinforced cooperation under the auspices of the Arctic Council may, therefore, be revisited. In this context, it is useful to bear in mind that cooperation on issues with transnational character is encouraged throughout UNCLOS.197 Regional cooperation is particularly recommended in Part IX on enclosed and semi-enclosed seas. Even though it might be questionable whether the Arctic Ocean constitutes a semi-enclosed sea in the sense of the definition of Article 122,198 the related preference for regional cooperation as formulated by Article 123 arguably applies at least analogically.199 One of the reasons for including Part IX in UNCLOS was that semi-enclosed seas need special treatment due to their particular characteristics. As Vukas underlines, these types of sea are notably exposed to a growing danger from all types of pollution because of their small size and poor interchange of 196

Para. 4 Nuuk Declaration (note 193).

197

With respect to environmental issues, see Art. 197 UNCLOS.

198

Pro: Lewis M. Alexander, Regionalism and the Law of the Sea: The Case of Semi-enclosed Seas, ODIL 2 (1974), 151, 157; Chircop (note 162), 364; Peter J. Ricketts, North American Semi-enclosed Seas: A Survey, in: Hance D. Smith/Adalberto Vallega (eds.), The Management of Semi-Enclosed Seas: the Emerging Global Pattern and the Ligurian Case (1990), 71, 74; Donat Pharand, The Case for an Arctic Regional Council and a Treaty Proposal, Revue générale de droit 23 (1992), 163, 187; Budislav Vukas, The LOS Convention and the Polar Marine Environment, in: Davor Vidas (ed.), Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (2000), 34, 40. Contra: William V. Dunlap, The Arctic Ocean and the Regime of Enclosed and Semi-enclosed Seas, in: Gerald Blake (ed.), International Boundaries and Environmental Security: Frameworks for Regional Cooperation (1997), 105, 106; J. Enno Harders, In Quest of an Arctic Legal Regime: Marine Regionalism – A Concept of International Law Evaluated, Marine Policy 11 (1987) 285, 295; Uwe Jenisch, Sovereign Rights in the Arctic, Maritime Policies and Practices after UNCLOS III, GYIL 28 (1985), 297, 321. Uncommitted: Finn Sollie, Polar seas: issues not dealt with in the Law of the Sea Convention, reasons and problems, in: Albert W. Koers/Bernard H. Oxman (eds.), The 1982 Convention on the Law of the Sea, Proceedings of the Seventeenth Annual Conference of the Law of the Sea Institute (1983), 653, 654; Bo Johnson Theutenberg, The Evolution of the Law of the Sea: A Study of Resources and Strategy with Special Regard to the Polar Areas (1983), 41; Donald R. Rothwell/Christopher C. Joyner, The Polar Oceans and the Law of the Sea, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001), 1, 5. 199

Ricketts (note 198).

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their waters with adjacent seas.200 Although its surface is admittedly considerable, the Arctic Ocean is small in comparison to other oceans. Given the polar conditions, it is all the more vulnerable to pollution. The thick ice-cover, though currently thinning, impedes interchange with other bodies of water. It is therefore advisable that the Arctic Ocean be treated differently to other seas, above all with respect to the conservation of the living resources (by analogy with Article 123 (a) UNCLOS) and the protection and preservation of the marine environment (by analogy with Article 123 (b) UNCLOS). Article 123 UNCLOS does not grant any further rights to the bordering coastal States, nor does it frame a firm legal obligation. Instead, it suggests regional cooperation to be the preferable modus operandi for dealing with the particular problems of semi-enclosed seas (“should cooperate”) and formulates what can be qualified as a best effort obligation to coordinate action on a regional basis (“shall endeavour to coordinate”). Cooperation through a regional organisation is an option that is explicitly mentioned. The legal value of these provisions seems perhaps small, but the beneficial effect of cooperation might be worth the effort. If the Arctic coastal States are able to coordinate their action, it may be all the more efficient, legitimate and convincing. Regional norm-setting could benefit from such coordination. In this respect, it could be useful to revisit the concept of regional sea, as Rothwell and Joyner point out.201 Furthermore, coordinated action could be of interest with regard to international norm-setting. As far as navigation is concerned, particularly navigation in the extensive Arctic high seas,202 regional cooperation cannot replace international norm-setting. Coastal State action under Article 234 may, however, prove insufficient in the vast Arctic EEZs. Discussions between the Arctic States could take place before the negotiations at the IMO with the result of a harmonised and thus more effective regional negotiation strategy. This would avoid the situation of Arctic States diverging due to different negotiation goals and approaches, as witnessed in connection with the Polar Code. The question which deserves deeper analysis is whether such closer cooperation could take place in the current legal framework and institutional structures or whether an Arctic agreement outlining the core principles and main goals of cooperation, or even an Arctic international organisation 200

Vukas (note 198).

201

Rothwell/Joyner (note 198), 19.

202

Due to the fact that a considerable percentage of the Arctic Ocean qualifies as high seas, it is difficult to clearly subsume the Arctic Ocean under Art. 122 UNCLOS.

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ensuring cooperation and possibly building upon work accomplished under the auspices of the Arctic Council, is necessary – and realistic.

V. Conclusion Since the increase of Arctic navigation has taken place so far against the backdrop of an underdeveloped legal framework, there is no doubt that the legal protection of the Arctic against vessel-source pollution will be tightened in the next few years. The three levels of governance – national, regional and international – are already involved in governance and that is not about to change, because none of them is dispensable. However, the articulation of how these initiatives are to fit together, given that they have been hitherto mostly isolated from one another, remains to be defined in order for a comprehensive legal framework to emerge. While the development of the Arctic Ocean ecosystems is inexorable, it should unfold in a way that protects them against the danger of serious or irreversible damage. A holistic approach that takes the ecosystems as point of departure would be preferable, since it shapes the development and the protection of the ecosystems on the basis of their characteristics and needs. However, it might also be the most unlikely form of governance, because it potentially conflicts with many rights of the Arctic coastal States and of the nonArctic user States enshrined in the general legal framework for the oceans. For this reason, the governance model of the Antarctic Treaty System, which excludes sovereign rights, might prove to be of limited interest for the Arctic, apart from the more coherent approach it embodies.203 The regional level could and should evolve into the driving force for structuring the protection of the marine Arctic against vessel-source pollution. It could and should also play a structuring role, at least in the long run, with respect to action taken against other dangers for the marine Arctic ecosystems resulting from off-shore oil and gas exploitation, fishing, or on-shore mining activities. Mere unilateral national action often falls short of the protectional needs of transnational ecosystems. Nevertheless, measures like the Canadian NORDREG regulation will continue to 203 Antarctic Treaty System (note 16). The fundamental difference between the Arctic and the Antarctic is that the latter is a continent surrounded by an ocean, while the Arctic is an ocean surrounded by land areas.

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exist as long as no agreed-upon rules and standards meet the level of protection deemed acceptable by the coastal State. Even though the international law of the sea gives the coastal State the necessary leeway for such unilateral measures, this is but one – and indeed not necessarily the best – response to the risks of navigation. This is precisely why the regional level could play a crucial role. National preferences notwithstanding, the coastal States of the Arctic Ocean share the most basic interests when it comes to navigation matters. If they act in concert, the benefit would be twofold. Their influence on international decisions will arguably increase. As a consequence, unilateral national measures may give way to internationally agreedupon measures more and more often – with all the associated advantages. Those national measures which continue to exist could be better coordinated, which may enhance their efficiency while reducing the risk of incompatibility.

Navigating Along Precedence: How Arctic Sovereignty Melts with the Ice JONAS ATTENHOFER(

ABSTRACT: The navigational routes across the Arctic bear the potential to significantly alter global trade routes. Navigational routes through the Arctic depend on the impact that climate change will have on the melting of ice. In the presence of increased sea ice, ships will hold close to shore and thus depend on access to Canadian and Russian coastal waters. The territorial status of these coastal waters determines the applicable legal regime for navigation. If navigation becomes increasingly feasible, the unilaterally delimited coastal waters of Russia and Canada could become subject to judicial scrutiny. Guidance can be found in the existing case law on maritime delimitation, which has elaborated on most of the important factors with respect to the delimitation of internal waters and territorial seas. Meanwhile, the case law on straits used for international navigation provides a somewhat limited guidance for the unprecedented situation of the Arctic sea lanes and the presence of ice. Should however the ice at some point become absent, the coastal waters will be less important for the bulk of navigation, which could then proceed through the open sea across the North Pole. KEYWORDS: maritime delimitation, climate change, Northwest Passage, Northeast Passage, Arctic, North Pole, navigation, straight baselines, strait used for international navigation, transit passage, non-encroachment, cutting-off, internal waters

I. Introduction As a short-cut between the Atlantic and Pacific Oceans, passage through the Arctic could “dramatically change the dynamics of global trade.”1 However, any significant scale of commercial traffic in the Arctic depends on the effects that climate change will have on the presence of ice. It is in the context of the perception of climate change that the legal status of the northern sea lanes has re-emerged on the stage of ( BLaw, MLaw (University of Bern). The author is a 2012 LL.M. candidate at the University of Chicago Law School. 1

Scott G. Borgerson, Arctic Meltdown, Foreign Affairs 87 (2) (2008), 63.

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international law.2 At the same time, it is the extent of the remaining ice that will ultimately decide the legal importance given to any particular sea lane suitable for navigation. In the extreme case of an ice-free Arctic, the direct route across the North Pole even bears the potential to alter global trade patterns. The current 11,200 nautical mile route between Rotterdam and Yokohama (using the Suez Canal) has the potential to be challenged by a 6,500 nautical mile route across the top of the world, reducing the journey by 42 %.3 In the medium term – assuming that the ice melts in a continuous fashion – a variety of routes may compete for the purpose of navigation. Such competition may depend both on global commercial ties and on vessel technology with respect to ice hazards.4 But for now, the Northwest Passage is the focal point of commercially viable navigation in and out of the markets of scale in North America. The debate on the legal status of the northern sea lanes has to date thus gathered most attention around the Northwest Passage with Canada and the United States (US) as the international political protagonists. The geographical and therefore legal situation is however similar in the Northeast Passage – often referred to as the Northern Sea Route5 – where Russia is the territorial stakeholder. Thus the predominant debate on the Northwest Passage also carries “potentially significant implications for its counterpart in the Barents Sea, the so-called Northeast Passage.”6 Both routes through the Arctic will gradually become navigable as the ice melts in the 2 Cf. Günther Handl, Northwest Passage (Candian-American Controversy) MPEPIL, para. 1, available via: http://www.mpepil.com (accessed on 30 October 2011). 3

See Arctic Council, Arctic Marine Shipping Assessment 2009 Report, 102, available at: http:// www.pame.is/amsa/amsa-2009-report (accessed on 30 October 2011); The Economist, 30 December 2008, The Curse of Carbon, available at: http://www.economist.com/node/12798428 (accessed on 30 October 2011). 4

Ibid., 103.

5

The term ‘Northeast Passage’ is employed here for practical purposes when comparing to the Northwest Passage. The two passages, which have in the past mostly been treated in separate instances, now gather attention for the same reason: melting ice. Therefore, the terms Northwest and Northeast Passage are employed, while the focus is only on the Russian coastal waters of the Northeast Passage. Contrary to the present choice of terms, Østreng notes: “the Northern Sea Route […] makes up only part of the Northeast Passage that connects the Atlantic and Pacific oceans along the whole stretch of the northern coast of Eurasia,” Willy Østreng, The Northern Sea Route: A New Era in Soviet Policy?, Ocean Development and International Law (ODIL) 22 (1991), 259, 260. According to that understanding, the Northern Sea Route which connects the northwest areas of Russia with the Bering Strait, is actually a part of the Northeast Passage (Leonid Tymochenko, The Northern Sea Route: Russian Management and Jurisdiction over Navigation in Arctic Seas, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001), 269, 269 et seq.). 6

Handl (note 2), para. 2.

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vicinity of the Canadian and Russian coasts. The navigational regimes applicable to the Northwest and Northeast Passages thus initially depend on the territorial status of the coastal waters.

II. The Law and Procedure Applicable to Arctic Coastal Waters A. UNCLOS and General International Law

Canada and Russia are parties to the United Nations Convention on the Law of the Sea (UNCLOS)7 while the United States is not. A legal dispute with respect to navigation in the relevant areas of the Northwest and Northeast Passages would most likely be dealt with in the realm of unilateral delimitation of internal waters and territorial seas by Canada or Russia. But a navigational dispute could also arise within the setting of delimitation of adjacent or opposite coasts, such as between Canada and the US. Both types of disputes are about maritime delimitation. The term maritime delimitation as used in this article denotes both the delimitation of maritime areas between opposite and adjacent coasts and the delimitation of internal waters8 and territorial seas9 where no other State is immediately opposite or adjacent. It will be shown that for both types of dispute the case law on maritime delimitation as between opposite and adjacent coasts provides essential guidance on one of the defining issues for navigation around the northern sea lanes: the territorial status of the coastal waters. Both in cases of delimitation of opposite or adjacent coasts and in unilateral delimitation, the territorial status of coastal waters pertains to the drawing of baselines and the ensuing determination of internal waters and territorial seas. These elements of delimitation have received useful clarification in the case law of delimitation between opposite and adjacent States. In addition, existing case law provides some guidance on the issue of international navigation in general. 7

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS).

8

Art. 50 UNCLOS uses the term delimitation for the purpose of declaring internal waters.

9

Art. 11 UNCLOS uses the term delimitation both for the unilateral delimitation of territorial seas and possibly for the delimitation between opposite and adjacent coasts. This must follow from the fact that Art. 11 appears under the heading “Limits of the Territorial Sea,” where it is positioned before Art. 15, which refers to opposite and adjacent coasts.

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Both Canada and Russia exempt maritime delimitation disputes as between opposite and adjacent coasts (Articles. 15, 74, 83 UNCLOS) from any kind of compulsory settlement under UNCLOS Part XV by virtue of the opt-out clause of Article 298 (1)(a)(i).10 The same provision also exempts disputes pertaining to historic titles from compulsory dispute settlement. It will however be briefly demonstrated that historic titles are an orphaned legal regime within UNCLOS as far as the delimitation of internal waters is concerned.11 The exemption does however clearly not pertain to the unilateral delimitation of internal waters and territorial sea limits, as these issues are dealt with inter alia in Articles 3, 4, 5, 7, 8 and 50, which are not mentioned by Article 298. Canada and Russia can thus still be compelled to clarify the status of their unilaterally delimited coastal waters under international law in a dispute with respect to navigation.12 By declaration under Article 287 (1) UNCLOS, Canada has chosen the International Tribunal for the Law of the Sea established in accordance with Annex VI UNCLOS or an arbitral tribunal constituted in accordance with Annex VII UNCLOS as forums for potential compulsory dispute settlement.13 Meanwhile, Russia is deemed by Article 287 (3) UNCLOS to have accepted arbitration in accordance with Annex VII UNCLOS. None of the three States accept the compulsory jurisdiction of the International Court of Justice (ICJ).14 There may in any case be a growing incentive on all sides to determine the status of the thawing Northwest and Northeast Passages under international law.15 Needless 10 See United Nations, The Law of the Sea: Declarations and Statements with Respect to the United Nations Convention on the Law of the Sea and to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (UN Sales No. E.97.V.3). 11

See infra, III. A. 1. c).

12

All the while, the potential for conflict in the region seems to be minimal, considering the friendly relations between the US and Canada and the decreasing polarisation between Russia and the US. Between Canada and the US, the North American Free Trade Agreement (17 December 1992, reprinted in: ILM 32 (1993), 289, 605) might provide a disincentive to use the Northwest Passage as the turf for an indirect trade war fought with the weapon of access to transportation. 13 Canada’s declaration made upon ratificationof (7 November 2003, available at: http://www.un. org/depts/los/convention_agreements/convention_declarations.htm (accessed on 7 November 2011). 14 See the website of the International Court of Justice for the declarations of the parties under Art. 36 (2) Statute of the International Court of Justice (ICJ Statute) (26 June 1945, UNCIO 15, 355), available via: http://www.icj-cij.org (accessed on 7 November 2011). 15

Russia and Norway recently found an international legal solution in their longstanding dispute in the Barents Sea, probably due to the overwhelming price of fossil energy (Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, available at: http://www.regjeringen.no/

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to say, the navigational stakes in the region will be allocated along the evolving pattern of global trade. Most of the provisions of UNCLOS that are relevant to the present matter have been held by tribunals and the ICJ to be part of customary law. As the main power in the region and the prime advocate for navigational freedom, the US accepts many of the relevant provisions of UNCLOS to be customary law.16 With respect to some of the more contentious provisions of UNCLOS, the US has set forward its own interpretation, including additional sets of criteria, as will be discussed in the relevant parts.

B. The International Aspect of Delimitation

It is worth recalling that “the delimitation of sea areas has always an international aspect.”17 While the drawing of baselines and territorial sea limits is necessarily a unilateral act, the validity of the delimitation with regard to other States depends upon international law.18 In this respect, courts and tribunals have considered or reconsidered baselines, regardless of whether they were challenged by the opposing party.19 Both Canada’s and Russia’s unilateral baselines and the ensuing internal upload/SMK/Vedlegg/2010/avtale_engelsk.pdf (accessed on 7 November 2011)). Even without much incentive, a comprehensive maritime boundary up to 200 nm was agreed upon according to international law by the US and the former Soviet Union in the Bering and Chukchi Seas in 1990 (Maritime Boundary Agreement Between the United States of America and the Union of Soviet Socialist Republics, 1 June 1990, reprinted in: Jonathan I. Charney/Lewis M. Alexander (eds.) International Maritime Boundaries, (vol. 1 (1993), 447, 448). The US and Russia honour the boundary, which is being applied provisionally, pending its formal entry into force upon exchange of instruments of ratification (David A. Colson/Robert W. Smith (eds.), International Maritime Boundaries, (vol. 5 (2005), 3401, 3403). 16 See generally, United States, Authoritative US Commentary to the LOS Convention included in the Secretary of State’s Letter of Submittal of the LOS Convention, Sen. Treaty Doc. 103–139, reprinted in: ILM 34 (1995), 1402 (US Commentary). 17

ICJ, Fisheries Case (United Kingdom v. Norway), Merits, Judgment of 18 December 1951, ICJ Reports 1951, 116, 132. The principle was stated again implicitly in Barbados/Trinidad and Tobago (Barbados, The Republic of Trinidad and Tobago), Arbitral Award of 11 April 2006, reprinted in: ILM 45 (2006), 800, para. 365; and explicitly in ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Merits, Judgment of 3 February 2009, ICJ Reports 2009, 61, para. 137. 18 19

ICJ, Fisheries Case (note 17), 132.

In the Fisheries Case, the baseline had been challenged on the ground that its course deviate too much from the general direction of the coast (ICJ, Fisheries Case (note 17), 141); In Qatar/Bahrain, neither of the parties had previously to the proceedings specified the baselines, which were to be used for the determination of the breadth of the territorial sea, nor had they produced official maps or charts

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waters and territorial sea limits around the Northwest and Northeast Passages could thus be reconsidered in a proceeding under international law, especially where they would seem to excessively enclose navigable waters.

III. The Territorial Status of the Northern Sea Lanes and the Applicable Navigational Regimes At the outset it should be noted that neither the Northwest nor the Northeast Passage has a single fixed route. The routes depend on prevailing ice conditions.20 The US and Canada dispute the legal status of the waters of the Northwest Passage connecting the Davis Strait/Baffin Bay in the east and the Beaufort Sea in the west.21 Canada regards its Arctic coastal archipelago as integral with and indistinguishable from its sovereign continental mainland areas.22 It has thus argued that the waters of the Northwest Passage are Canadian and that coastal State regulations apply, as well as the requirement for prior authorisation of transit.23 The US on the other hand “has firmly taken the position that the Northwest Passage waters are not internal and that they are subject to the non-suspendable navigational regime of transit passage” under

which reflected such baselines (ICJ, Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports 2001, 40, para. 177). The court therefore first determined the location of the baselines (para. 178); the court in Romani/Ukraine likewise seems to have reconsidered the baselines set forward by the parties (Cf. ICJ, Romania/Ukraine (note 17), paras. 132, 136); the tribunal in Eritrea/Yemen however, held that the validity of the baseline “is hardly a matter that the tribunal is called upon to decide” and instead decided only on the base points, albeit independently of any claim to baselines (Maritime Delimitation Between Eritrea and Yemen (Eritrea, Republic of Yemen), Arbitral Award of 17 December 1999, reprinted in: ILM 40 (2001), 983, para. 142). 20

See Tymochenko (note 5), 270.

21

See maps annexed to this article.

22

Cf. Ashley J. Roach/Robert W. Smith, United States Responses to Excessive Maritime Claims (2nd ed. 1996), 340 footnote 93. It may be assumed that “for Canada, sovereignty in the Arctic North is a potent symbol of both national identity and independence vis-a-vis its powerful southern neighbour,” Handl (note 2), para. 19. 23 Canadian Embassy, Washington DC, Note No. 331 to the State Department, 11 June 1985, State Department File No. P85 0118 0711/0714. “In the past exclusive Canadian control over the Passage had been viewed as a centrepiece of Canada’s assertion of sovereignty over the Arctic Archipelago,” Handl (note 2), para. 19.

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existing international law.24 The US considers the Northwest Passage a strait used for international navigation between one area of the high seas and another.25 Significant parts of the Northeast Passage lie within Russian coastal waters. Depending on seasonal variations, the Northeast Passage may be navigable in some areas. Assuming a continuous melting of ice towards the North Pole, the Northeast Passage may soon be navigable mostly outside Russian territorial waters. So far, however, navigation still keeps close to shore, relying also on the passage of the particularly crucial Vilkitsky Strait.26 Yet already it seems at times possible to skirt the north Severnaya Zemlya archipelago, bypassing the Vilkitsky Strait, which narrowly separates several Russian islands from the continental territory.27 For the duration of the Soviet Union, the Vilkitsky Strait was within Soviet territorial waters and sailing through it was subject to preliminary permission in accordance with Soviet regulations.28 According to Russian regulations from 1991, the Northeast Passage is open in general to vessels of all nations – based on a policy of non-discrimination – and subject to the regulation of safe navigation and the protection of the environment.29 While this general openness of the Northeast Passage may still prevail,30 subsequent regulation has reiterated that it is necessary to yield to Russian permission and assistance when navigating such parts of the Passage as the Vilkitsky Strait.31 All the while Russian regulation maintains that navigation on the seaways of the Northern Sea Route, including the Vilkitsky Strait,

24 Roach/Smith (note 22), 339, 340 footnote 93, with reference to State Department telegram 151842, 17 May 1985; American Embassy Ottawa telegram 03785, 21 May 1985. It may still be valid that “The United States has more to lose than any other nation if its maritime rights are undercut,” Roach/Smith (note 22), 8. 25

Roach/Smith (note 22), 339.

26

See e.g. the 2009 voyage of two German commercial vessels, the MV Beluga Fraternity and the MV Beluga Foresight, The New York Times, 4 September 2009, Commercial Arctic Passage Nearing Goal, available at: http://dotearth.blogs.nytimes.com/2009/09/04/commercial-arctic-passage-nearing-goal (accessed on 30 October 2011). 27

Tymochenko (note 5), 270.

28

See ibid., 280.

29

See ibid., 284; Erik Franckx, The Legal Regime of Navigation in the Russian Arctic, Journal of Transnational Law & Policy 18 (2009), 327, 334. 30

See Franckx (note 29), 330, 334.

31

Tymochenko (note 5), 285; Franckx (note 29), 334 et seq.

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shall be carried out in accordance with the international treaties to which the Russian Federation is a party.32 The application of any particular regime of passage to the Northwest and Northeast Passages depends on the legal status applying to the respective maritime area.33 This legal status has yet to be determined. The potential territorial statuses and their applicable navigational regimes will be treated in this article in the order of decreasing encroachment upon the freedom of the seas.

A. Internal Waters

1. Application and Scope a) Straight Baselines The waters on the landward side of the baseline form part of internal waters (Article 8 (1) UNCLOS). The normal baseline follows the low-water line along the coast (Article 5 UNCLOS). In contrast, a straight baseline is drawn across whole coastal sections, “joining appropriate points” on land (Article 7 (1) UNCLOS). Where straight baselines are applied, the portion of internal waters enclosed behind the baseline can be maximised. For the purpose of drawing straight baselines, islands are considered land (Article 121 (2) UNCLOS). Iceformations, however, should be considered as water, at least if the permanent

32

Art. 14 Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation (Федеральный закон от 31 июля 1998 г. № 155-ФЗ «О внутренних морских водах, территориальном море и прилежащей зоне Российской Федерации»), 31 July 1998, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/RUS_ 1998_Act_TS.pdf (accessed on 30 October 2011). 33 As far as the settlement of a maritime delimitation dispute is concerned, it may be worth noting that the US is not a party to UNCLOS and Canada exempts maritime delimitation disputes from any kind of compulsory settlement under UNCLOS Part XV, see United Nations, The Law of the Sea (note 10). It should further be noted that the bilateral Agreement on Arctic Cooperation (11 January 1988, UNTS 1852, 59) of 1988 commits the United States to not permit navigation by US icebreakers in the disputed waters without the consent of the government of Canada. However, the parties also expressly stipulate that neither the Agreement nor any practice thereunder shall prejudice the parties’ legal positions in this or any other maritime areas (Arts. 3 and 4 of the Agreement).

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physical state is unsure.34 Straight baselines must not depart significantly from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain in order for the regime of internal waters to apply (Article 7 (3) UNCLOS). A State may employ the method of straight baselines in localities where there is a fringe of islands along the coast in its immediate vicinity (Article 7 (1) UNCLOS). Such a constellation could be called a ‘coastal archipelago’.35

b) ‘A Fringe of Islands Along the Coast in Its Immediate Vicinity’ Two cases regarding geographically similar island formations came before the ICJ and an arbitral tribunal respectively at around the same time. The 1999 arbitral award in Eritrea/Yemen36 dealt with opposite mainland coasts, while the 2001 judgment in Qatar/Bahrain37 concerned a mainland (Qatar) and an island (Bahrain) with opposite coasts.38 Both areas of delimitation contained several insular features of varying size and legal quality, including low-tide elevations.39 By agreement, the parties in Eritrea/Yemen mandated the tribunal to take into account not only UNCLOS – despite Eritrea not being a party thereto – but also any other pertinent factor. ‘Any other pertinent factor’ was interpreted by the tribunal to entail various factors generally recognised as being relevant to the process of delimitation, such as proportionality, non-encroachment, the presence of islands, and any other factors that might affect the equities of the particular situation.40 34 Jonas Attenhofer, Baselines and Base Points: How the Case Law Withstands Rising Sea Levels and Melting Ice, American Society of International Law, Law of the Sea Interest Group, LOS Reports 1 (2010), 3. Cf., however, A. T. Uustal, Международно-правовои режим территориальных вод (1958), 184. 35

E. D. Brown, The International Law of the Sea, vol. 1 (1994), 124.

36

Eritrea/Yemen (note 19).

37

ICJ, Qatar/Bahrain (note 19).

38

While the opposite nature of the islands seems obvious here, it should be noted that the court treated the area of delimitation to the north of Bahrain as one between adjacent coasts (ICJ, Qatar/ Bahrain (note 19), para. 247). 39

See maps Eritrea/Yemen and Qatar/Bahrain.

40

Eritrea/Yemen (note 19), para. 130.

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The tribunal in Eritrea/Yemen echoed the Eritrean claim that the Dahlak group of islands were “a tightly knit group of islands and islets, or ‘carpet’ of islands and islets” and branded it a “typical example” of a group of islands that forms an integral part of the general coastal configuration.41 The tribunal also recalled that it had in practice seemingly always been treated as such.42 The tribunal thus found that the Dahlak group of islands met the test of “fringe of coastal islands” and drew the baseline on the external fringes of the island system without protest from Yemen.43 It should be noted that the territorial seas of the individual Dahlak islands overlapped with each other as the distance between them was less than 24 nm. The tribunal also regarded the “relatively large” Yemeni islet of Tiqfash, and the smaller islands of Kutama and Uqban further west as “an intricate system of islands, islets and reefs which guard this part of the coast” and treated them as a “fringe system” in the sense of Article 7 UNCLOS.44 The parties in Qatar/Bahrain agreed that the court should render the maritime delimitation in accordance with international law. Since only Bahrain had ratified UNCLOS, the court found that customary international law was the applicable law, while both parties agreed that most provisions of UNCLOS relevant to the case reflected customary law. Bahrain contended that the maritime features off the coast of the main islands may be assimilated into a fringe of islands constituting a whole with the mainland. The court did not deny that the maritime features east of Bahrain’s main islands were part of the overall geographical configuration; but it held that the islands are “relatively small in number” and that it would go too far to qualify them as a fringe of islands along the coast.45 In contrast to the ostensibly similar yet undoubtedly different geographical situation in Eritrea/Yemen, the ICJ did not qualify the Hawar Islands, lying more than 24 nm off Bahrain’s main islands, as a fringe of islands along the coast.46 Accordingly, the court denied Bahrain the drawing of straight baselines despite the tribunal in Eritrea/ Yemen having allowed this procedure in closely relating circumstances.47 41

Ibid., para. 139.

42

Whether the latter fact is of independent merit seems unclear.

43

Eritrea/Yemen (note 19), paras. 139 et seq.

44

Ibid., para. 151.

45

ICJ, Qatar/Bahrain (note 19), para. 214.

46

Ibid.

47

Eritrea/Yemen (note 19), para. 140; ICJ, Qatar/Bahrain (note 19), para. 215.

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Both judicial bodies applied Article 7 UNCLOS. The ICJ in Qatar/Bahrain, ruling according to customary law, even seems to accord the provision the status of customary law. At the same time, there remains considerable judicial leeway within the concept of “fringe of islands along the coast” as contemplated by Article 7 UNCLOS. It may be interesting to note that the US, as the most obvious non-territorial stakeholder in the issue of Arctic navigation, “accepts that the two specific geographical circumstances under which States may employ straight baselines are as described in [Article 7 (1) UNCLOS].”48 However, the US has taken the position that such a ‘fringe of islands’ must meet all of the following requirements.49 First, the most landward point of each island must lie no more than 24 nm from the mainland coastline. Second, each island to which a straight baseline is to be drawn must be no more than 24 nm apart from the island from which the straight baseline is drawn. These first two criteria thus warrant that a fringe of islands will be essentially parallel to the coast with the individual islands not far from each other.50 In fact, the US contends that no segment of straight baselines shall exceed 24 nm in length. This employs a concept of close spatial relationship in terms of an absolute distance, as opposed to one of relative distances that would take into account the sizes of the islands as well. The third criterion insists that the islands, as a whole, must mask at least 50 % of the mainland coastline in any given locality. It can be argued that the quantitative test for the number of islands should be ‘very high’, comparable to that found in the Norwegian Skjaergaard.51 This also seems to have been the view taken by the ICJ in Qatar/Bahrain, which dismissed Bahrain’s islands for being, among other things, “relatively small in number,” as discussed above.52 Yet quantity arguably played a lesser role in the reasoning of the tribunal in Eritrea/Yemen, which included Yemen’s islet of Tiqfash and the smaller islands of Kutama and Uqban within the straight baseline. Finally, it may be noted that in the view of the US a “fringe of islands along the coast in its immediate vicinity” refers to a number of islands, and not to other features that do not meet the definition of an island contained in Article 121 48

Roach/Smith (note 22), 61.

49

US Commentary (note 16), 8.

50

See United Nations, The Law of the Sea, Baselines (1989), para. 43; Gayl S. Westerman/ W. Michael Reisman, Straight Baselines in International Maritime Boundary Delimitations (1992), 86. 51

Westerman/Reisman (note 50), 86.

52

ICJ, Qatar/Bahrain (note 19), para. 214.

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(1) UNCLOS. According to the judgment in Qatar/Bahrain, the definition of island as found in UNCLOS is part of customary law.53 Contrary to the US view, the tribunal in Eritrea/Yemen seems to have considered not only islands but apparently “an intricate system of islands, islets and reefs which guard [the] coast” which thus constituted a fringe system as contemplated by Article 7 (6) UNCLOS.54 Around its coastal archipelago in the Arctic, Canada maintains a system of straight baselines which it has declared by stating that “the waters of the Arctic Archipelago, including the Northwest Passage, are internal waters of Canada.”55 Due to the distance between some of the islands, it is unlikely that the entirety of the Canadian Arctic coastal archipelago can be considered an integral part of the coast. Considering the size of the Arctic Archipelago in total, the relevant islands may also be considered “relatively small in number,” as in Qatar/Bahrain. While the islands south of the Parry Channel could be regarded as constituting “a fringe of islands along the coast in its immediate vicinity” (Article 7 (1) UNCLOS) and thus qualify as a coastal archipelago to which a straight baseline system might be applied, the more northerly group probably does not fall into this category.56 The Queen Elizabeth Islands, lying north of the Parry Channel – and thus bordering the Northwest Passage to the north – seem to be more loosely scattered and rather remote to be forming “a fringe of islands along the coast in its immediate vicinity” (Article 7 (1) UNCLOS). In the area of the Northeast Passage the most obvious instance of where a “fringe of islands” may be claimed is in the Vilkitsky Strait, which lies between the Taimyr Peninsula and Bolshevik Island in the Severnaya Zemlya archipelago. Arguably the islands around the Vilkitsky Strait do not resemble the “tightly knit group of islands” evoked by Eritrea/Yemen; certainly not in the Strait’s entirety. Also in terms of quantity, it may be difficult to qualify the islands to the north of the Vilkitsky Strait, 53

See ibid., para. 167 in connection with 195.

54

Eritrea/Yemen (note 19), para. 151.

55

Canadian Embassy (note 23). See Roach/Smith (note 22), 343–345, 340, footnote 93. The Canadian diplomatic note was in fact a response to a United States diplomatic note as part of its Freedom of Navigation Program (FON). The FON is the United States’ response to what are perceived to be excessive maritime claims in order to preserve and enhance navigational freedoms worldwide (ibid., 5). 56

Brown (note 35), 124.

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including Bolshevik Island, as a “fringe of islands along the coast” in the sense of Article 7 (6) UNCLOS. Under international law, which corresponds on this point with Russian regulation,57 the Vilkitsky Strait will in all likeliness not be closed by straight baselines. Regardless of the above, the Vilkitsky Strait is also not parallel to the coast, as is required by the US criteria.

c) The Concept of Historic Internal Waters Canada has claimed that the waters enclosed by its straight baselines in the Arctic are not merely internal waters, but “historic internal waters.”58 It is submitted that the content of the concept of historic waters would be equal in legal quality to internal waters.59 Sovereignty over waters does not get more exclusive than the regime of internal waters. Title to historic waters therefore has no selfstanding validity in so far as internal waters have been regulated by international law. The relevant law today, as for Canada and Russia, is UNCLOS with its attribution of internal waters under the heading of straight baselines. UNCLOS makes no mention of historic title where the drawing of straight baselines is concerned.60 Historic waters have thus been dubbed “an orphaned offshore international legal regime” for their absence in the relevant parts of UNCLOS.61 The US, not a party to UNCLOS, has taken a restrictive view of historic waters: “to meet the international standard for establishing a claim to historic waters, a State must demonstrate its open, effective, long term, and continuous exercise of authority over the body of water, coupled with

57

Art. 4 Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation (note 32). 58

Suzanne Lalonde/Michael Byers, Who Controls the Northwest Passage?, Vanderbilt Journal of Transnational Law 42 (2009), 1133, 1153. 59 See also John Kennair, An Inconsistent Truth: Canadian Foreign Policy and the Northwest Passage, Vermont Law Review 34 (1) (2009), 15, 25. 60 In this vein, the European Commission stated that the European Member States cannot recognise the validity of a historic title as justification for the straight baselines which Canada drew (Roach/ Smith (note 22), 121 (citing Note from British High Commission, Note No. 90/86 of 9 July 1986, reported in American Embassy Paris telegram 33625, 24 July 1986)). 61

Ted L. McDorman, Notes on the Historic Waters Regime and the Bay of Fundy, in: Aldo Chircop et. al (eds.), The Future of Ocean Regime Building: Essays in Tribute to Douglas M. Johnston (2009), 701, 701.

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acquiescence by foreign States in the exercise of that authority.”62 The criteria had been elaborated by the United Nations prior to UNCLOS.63 Even if these criteria were applicable for the determination of internal waters in addition to the straight baseline criteria of UNCLOS, the Northwest Passage would be unlikely to qualify as historic internal waters.64 The element of acquiescence by foreign states is clearly lacking.

d) No Cutting-Off from the High Seas Article 7 (6) UNCLOS demands that no straight baseline be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas. In the near future the high seas of the Arctic will still be ice covered, while the coastal regions, including the Canadian Northwest Passage, may be ice-free. There would thus be a cut-off effect from Canadian straight baselines as long as the Arctic remains non-navigable due to the presence of ice and at the same time ships could theoretically sail from American territorial waters through the Canadian Northwest Passage into the high seas of the Atlantic Ocean. While UNCLOS may not have envisioned this scenario, in effect, the Arctic territorial seas of the US would be cut off from the high seas of the Arctic by ice, and at the same time from the Atlantic by the Canadian straight baselines. Under Article 7 (6) UNCLOS, Canadian straight baselines may thus not be permitted to ‘close’ the Northwest Passage. This view should be consistent with Article 7 (6) UNCLOS, since the US would otherwise be prevented from making use of the only connection to the high seas that lie beyond its territorial seas in the Arctic. Article 7 (6) UNCLOS seeks to facilitate access to the high seas and the Exclusive Economic Zone (EEZ) – those maritime zones, which are the getaway for international commercial connections and fisheries. Navigational concerns thus take precedence over the drawing of straight baselines. As long as the presence of ice persists on the high seas and EEZ, it could thus be argued that US 62

Roach/Smith (note 22), 31.

63

United Nations Office of Legal Affairs Codification Division, Juridical Regime of Historic Waters, Including Historic Bays (9 March 1962), UN DOC. A/CN.4/143, 80. 64

James Kraska, International Security and International Law in the Northwest Passage, Vanderbilt Journal of Transnational Law 42 (4) (2009), 1109, 1126.

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navigational access to the Atlantic has to be facilitated even against Canadian straight baselines in the Northwest Passage. At the same time it has to be conceded that the US is not completely cut off from the high seas of the Atlantic, since the country also has an Atlantic coast in the east. However, Article 7 (6) UNCLOS employs the singular form when it refers to territorial sea: “straight baselines may not […] cut off the territorial sea of another State from the high seas or exclusive economic zone.” The singular form should be read to imply that only one entity of territorial sea is meant. A different entity of territorial sea in a different ocean does not ease the restriction of Article 7 (6). It can thus be argued that the US territorial sea in the Arctic must not be cut off from access to the EEZ and high seas of the Atlantic Ocean by Canadian straight baselines.

2. Passage at Discretion of Coastal State, Subject to an Exception The right of innocent passage, which applies up to 12 nm seaward from the baseline (in the territorial sea),65 does not apply in the internal waters landward from the baseline (Article 18 (1)(a) UNCLOS). For the purpose of navigation, internal waters are considered exclusive sovereign territory. Generally, passage is at the discretion of the coastal State. However, this rule is subject to an exception. Where the drawing of straight baselines has the effect of enclosing as internal waters, areas which had not previously been considered such (Article 8 (2) UNCLOS), the right of innocent passage shall prevail. Canada declared the waters of its Arctic coastal archipelago, including the Northwest Passage, to be internal waters with effect from 1 January 1986.66 When Article 8 UNCLOS is applied to the Canadian straight baselines, those routes of the Northwest Passage that were not previously deemed internal waters may still be subject to the regime of innocent passage. The same would probably be true if, instead of UNCLOS, the law in force at the time of Canada’s baseline declaration applied in accordance with the

65 66

See infra, III. B. 3.

See Territorial Sea Geographical Coordinates (Area 7) Order, 10 September 1985, Canada Gazette, Part 11, vol. 119, No. 20.

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doctrine of inter-temporal law.67 A similar provision could also be found in Article 5 Territorial Sea Convention, before the conception of UNCLOS.68 The provision was incorporated into UNCLOS, which by then included several States that employed straight baselines. The saving clause of Article 8 UNCLOS could thus be considered to have had already acquired the status of customary international law by the time Canada claimed straight baselines.69 Accordingly, the right of innocent passage would prevail by way of the exception of Article 8 (2) UNCLOS in the waters of the Northwest Passage, even in the event that Canada’s straight baselines system were found to be valid.

B. Territorial Seas Around the Relevant Islands

1. Application and Scope In the likely case that straight baselines are not applicable to the Northwest Passage, the status of these waters is not that of internal waters, but territorial seas up to 12 nm off the coast (Article 3 UNCLOS). Islands generate territorial seas of their own (Article 121 (2) UNCLOS). The role of various smaller coastal features can be crucial, as when such coastal features have the legal status of islands, they may be used for ‘leapfrogging’. This term refers to the connection of territorial seas by insular features, including low-tide elevations, which are less than 24 nm apart. The geographic circumstances in Eritrea/Yemen included the presence of some small Eritrean islands lying within the territorial seas of both parties and within an international shipping lane.70 The tribunal refused to enclave the Eritrean islands with territorial seas inside Yemen’s territorial sea, stating an “obvious impracticality of establishing limited enclaves around islands and navigational hazards in the immediate neighbourhood of a main international shipping lane.”71 The tribunal instead allowed a chain of Eritrean islands which are less than 24 nm apart to generate a 67

Island of Palmas Case (Netherlands, USA), Arbitral Award of 4 April 1928, Reports of International Arbitral Awards (RIAA) II, 829, 846. 68

Convention on the Territorial Sea and the Contiguous Zone 29 April 1958, UNTS 516, 205.

69

Handl (note 2), para. 14.

70

Eritrea/Yemen (note 19), para. 154.

71

Ibid., para. 155.

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continuous band of territorial sea out to the islands in question. The tribunal emphasised that there was no doubt that an island, however small, and “even rocks provided they are indeed islands proud of the water at high-tide,” are capable of generating a territorial sea of up to 12 miles.72 Only by leapfrogging can major parts of the Northwest Passage be claimed as territorial waters of Canada. One notable exception is the Prince of Wales Strait, where the two large maritime features; the Banks Island and the Victoria Island, are less than 24 nm apart. In the Northeast Passage, navigation will for the time being rely on the Vilkitsky Strait between the Taimyr Peninsula and Bolshevik Island before the ice recedes further towards the North Pole. The length of the Vilkitsky Strait is 60 nm and the minimal width is 30 nm.73 The 12 nm territorial seas generated by the Taimyr Peninsula and Bolshevik Island will therefore almost overlap in the strait. In addition, there are the Heiberg Islands situated at the western entrance of the Vilkitsky Strait which divide the strait into northern and southern passages. The former of these passages has a width of 22.5 miles and the latter about 11 miles. This results in the strait being enclosed with territorial seas by virtue of overlap generated by the 12 nm territorial sea of the Heiberg Islands and that of the Bolshevik Island to the north and Taimyr Peninsula to the south of them.74 The exact extent of territorial seas will of course depend on which of the Heiberg Islands are indeed proud of the high-water line at all tides as necessitated by Article 121 (1) UNCLOS and customary law.

2. The Principle of Non-Encroachment In circumstances of hazardous navigational routes, the principle of non-encroachment might call for an amendment of the territorial sea. Judge Lachs described the principle as employed in the Guinea/Guinea-Bissau Award in the following terms:

72

Ibid.

73

Nathan D. Mulherin, The North Sea Route, Its Development and Evolving State of Operations in the 1990s (1996), 32. 74

Tymochenko (note 5), 280.

142 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 as stated in the award, our principal concern has been to avoid, by one means or another, one of the Parties finding itself faced with the exercise of rights, opposite to and in the immediate vicinity of its coast, which might interfere with its right to development or put its security at risk.75

By recourse to the principle of non-encroachment, the tribunal avoided a ‘cut-off effect’ for Guinea-Bissau, which lies on a concave part of the West African coast, in the presence of a large number of small coastal States. The tribunal avoided an enclavement of Guinea-Bissau’s coastal waters, thus allowing it to extend its maritime territory as far seaward as international law permits.76 In the Anglo/French Continental Shelf arbitration the principle of non-encroachment was employed to draw an enclave around the British Channel Islands. Among the concerns of France were the security and navigational problems presented by having foreign maritime territory so close to its coast.77 The concept of non-encroachment is closely tied to security factors. The idea is that a boundary line should not be so close to the coast of one party that it compromises that State’s security interests, but rather should leave to the coastal State the greatest possible power over the areas close to its coasts.78 Clearly, some encroachment of the maritime zones of one State upon those of another is inevitable in all delimitations. But the principle of non-encroachment may be treated particularly sensitively in the presence of international navigational routes and maritime zones could be thus amended. The tribunal in Eritrea/Yemen made a reference to the principle of non-encroachment in allowing the Eritrean islands to connect their territorial seas instead of enclaving the islands lying furthest off-shore.79 The tribunal made reference to practi-

75

Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (Guinea, GuineaBissau), Arbitral Award of 14 February 1985, RIAA XIX, 149, para. 124. The tribunal in Guinea/ Guinea-Bissau had been asked by the parties to render an award in accordance with international law, and applied customary law and Arts. 74 and 83 UNCLOS (ibid., paras. 43, 87 et seq.). 76

Ibid.

77

France-United Kingdom Arbitration on the Delimitation of the Continental Shelf (France, United Kingdom) Arbitral Award of 30 June 1977, reprinted in: ILM 18 (1979), 397, paras. 175–188. 78

Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (2003), 109, 203. 79

Eritrea/Yemen (note 19), para. 155.

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cal needs – considering navigational hazards in the area of the islands and in the vicinity of an international shipping lane. There is only a slight difference between the circumstances found in Eritrea/Yemen and those surrounding the Northwest and Northeast Passages. In Eritrea/Yemen, the territorial seas of two States were overlapping and the Eritrean islands would have been encroached upon by Yemen’s territorial sea. In the areas of the Northwest and Northeast Passages, however, the enclaved Canadian and Russian islands would be encroached upon by each country’s own maritime zones. Yet the principle of nonencroachment may still have merit in a delimitation matter concerning the Northwest Passage, since here, as in Eritrea/Yemen, a main international shipping lane and the presence of islands coincide.80 After all, the principle as described in Guinea/GuineaBissau takes into account security concerns resulting from the exercise of foreign rights close vicinity of the coast. While there is thus no foreign jurisdiction encroaching upon Canadian and Russian waters, an exercise of foreign rights of navigation in the maritime zones close to some of the islands that may potentially be enclaved with territorial seas nevertheless occurs. The principle of non-encroachment might thus receive some attention, e.g. in the area of the Severnaya Zemlya archipelago. In this area to the west and east of the narrow Vilkitsky Strait, concerns of security may play a role and could tip the balance towards a generous allowance of leapfrogging.81 In this way, substantial parts around the Strait – depending also on the quality of smaller insular features – could be claimed as territorial seas. The principle of non-encroachment as stated by Judge Lachs in the Guinea/ Guinea-Bissau Award also invokes a right to development.82 The right to development may be encroached upon where Canadian and Russian indigenous hunting and

80

Cf. the exception in Art. 38 (1) UNCLOS which under similar geographical circumstances suspends the right of transit passage normally applicable within a strait used for international navigation. 81

Security concerns, as stipulated by the principle of non-encroachment should probably not play a role beyond navigational concerns, since already the shortly discussed regime of innocent passage as applicable in the territorial sea is intended to provide a safeguard to peace, good order or security of the coastal State (Art. 19 (1) UNCLOS). 82

Guinea/Guinea-Bissau (note 76), para. 124.

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fishing grounds lying between islands are disturbed or polluted by shipping.83 Such concerns could re-introduce the influence of more insular elements into the process of defining territorial seas.

3. Innocent Passage In the territorial sea, the right of innocent passage applies; indeed this constitutes one of the cornerstones of the law of the sea.84 According to the ICJ, innocent passage in the territorial sea is part of customary law.85 The right of innocent passage can be seen to include passage which is not prejudicial to the peace and good order or security of the coastal State (Articles 19–26 UNCLOS).86 It presents a compromise between the interests of the coastal State and the maritime users.87 In Qatar/Bahrain, the court was faced with a situation where the only route suitable for navigation in the area led through the territorial seas of Bahrain.88 The court had adopted a delimitation line that in one part runs between Qatar’s peninsula and the Bahraini Hawar islands that lie very close to Qatar. Qatar’s maritime zones situated to the south of Bahrain’s Hawar Islands and those situated to the north of those islands were thus connected only by a narrow and shallow channel, little suited to navigation. Qatari vessels accordingly now ship not through their own territorial waters but through those of Bahrain, lying between the Bahraini Hawar islands and Bahrain’s main island.89

83 Cf. Robin Warner, Charting a Sustainable Course Through Changing Arctic Waters, University of Wollongong Faculty of Law Paper (2009), available at: http://ro.uow.edu.au/cgi/viewcontent.cgi? article=1080&context=lawpapers (accessed on 30 October 2011). 84 Kari Hakapää, Innocent Passage, MPEPIL, para. 47, available via: http://www.mpepil.com (accessed on 3 October 2011): “[t]he fundamental principle of a right to such passage is universally recognized and well-respected in conduct”. 85

ICJ, Qatar/Bahrain (note 19), para. 223.

86

Hakapää (note 85), para. 47: although, “[i]n its specific features State practice may present some contradiction”. 87 Ibid., para. 44: “[a]s such, they constitute an important part of the ‘package deal’ of the [UNCLOS] […] arrangement”. 88

ICJ, Qatar/Bahrain (note 19), para. 223.

89

ICJ, Qatar/Bahrain (note 19), paras. 222 et seq.

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The situation is somewhat reminiscent to that in general in the Northwest Passage and that particularly in the Northeast Passage in respect to the Vilkitsky Strait. In the presence of a large ice cover over the North Pole, these routes are the only ones useful for navigation in any economically useful terms. Vessels operating for global trade under a foreign flag would thus have to navigate through the territorial waters of Canada or Russia – in the Northwest Passage in general and the Vilkitsky Strait in particular. The court in Qatar/Bahrain first recalled that Bahrain was not entitled to employ straight baselines or archipelagic baselines and that the waters were thus not internal but territorial waters of Bahrain. It then stressed that “Qatari vessels, like those of all other States, shall enjoy in these waters the right of innocent passage accorded by customary international law.”90 While the latter finding invents nothing new in terms of material law, it certainly provides an imperative for the Arctic sea lanes where the situation with respect to geography and navigational demands may soon be very similar.

C. Archipelagic Status

1. Application and Scope Under Part IV of UNCLOS, a State may declare archipelagic status in order to draw straight archipelagic baselines between the outermost points of the outermost islands of the archipelago (Article 47 (1) UNCLOS). A State may also declare itself a de facto archipelagic State during delimitation proceedings, where its claim to straight archipelagic baselines is considered.91 In both cases, a State would have to meet the relevant conditions in order to draw straight archipelagic baselines.92 Part IV of UNCLOS is concerned only with the category of archipelagic States and not with coastal archipelagos. Only States that are constituted “wholly by one or more archipelagos” are considered archipelagic States (Article 46 (1)(a) UNCLOS). The provision thus excludes dependent archipelagos.93 States that are ‘mainly’ continental, though their dominions also include archipelagos, are not considered archipelagic 90

Ibid., para. 223.

91

Ibid., para. 184, see also paras. 210–216.

92

Ibid., para. 213; Brown (note 35), 424.

93

Brown (note 35), 109.

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States.94 Only archipelagic States may draw archipelagic baselines, while mainland States with coastal archipelagos may only draw straight baselines in accordance with Article 7 UNCLOS, as discussed above. Since the majority of both Canadian and Russian sovereign land territory is continental, they almost certainly do not qualify as archipelagic States.95

2. Archipelagic Sea Lanes Passage In the unlikely event that either Canada or Russia were entitled to draw straight archipelagic baselines, the right of archipelagic sea lanes passage would apply in designated sea lanes within archipelagic waters (Article 52 (1) UNCLOS). An archipelagic State may designate sea lanes suitable for the continuous and expeditious passage of foreign ships through its archipelagic waters and the adjacent territorial sea (Article 53 UNCLOS). Archipelagic sea lanes passage constitutes innocent passage that can only be suspended completely if essential for the protection of coastal State security (Article 52 (1) and (2) UNCLOS). It includes most of the essential elements of the transit passage regime of non-archipelagic straits used for international navigation (Article 54 UNCLOS).96 Archipelagic sea lanes “shall include all normal passage routes used as routes for international navigation” (Article 53 (4) UNCLOS). Canada would thus have to designate the Northwest Passage as an archipelagic sea lane, while Russia would have to do the same with the Northeast Passage, particularly the Vilkitsky Strait. This is due to the nature of these passages, being obvious routes for international navigation once the ice has receded from the coastal waters but not substantially from the North Pole.

94

Ibid.

95

See ibid., 124.

96

See infra, III. D. 2. It may be interesting to note that the Philippines also regards its archipelagic waters as internal waters subject to permission of transit, cf. the declaration made by the government of Philippines upon deposit of its instrument of ratification, 8 May 1984, available at: http://treaties.un. org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3 &lang=en (accessed on 7 November 2011). The Philippines solved the initial dispute with the United States by granting it permission to operate freely in Philippine waters, see Roach/Smith (note 22), 27.

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D. Straits Used for International Navigation

1. Application and Scope In order to be eligible for the regime of transit passage, the relevant waters must be qualified as a strait “used for international navigation” (Articles 38 (1) and 37 UNCLOS). The definition of a “strait used for international navigation” is contained in Article 37 UNCLOS and entails a geographical and a functional criterion.97 The geographical criterion is that a strait “used for international navigation” must connect one part of the high seas or an EEZ and another part of the high seas or an EEZ. In the view of the US, the geographical criterion that a strait is “capable of being used for international navigation to or from the high seas or the EEZ” is the only relevant criterion.98 The Northwest and Northeast Passages certainly satisfy the geographical criterion, at least when they are ice-free. The functional criterion for a strait “used for international navigation” is contained in that very expression and may thus entail a certain degree of actual use.99 In the view of Canada the functional condition requires that a strait has “traditionally been used for navigation.”100 In the view of the US “the history or volume of traffic flowing through the strait, or its relative importance to international navigation,” are not relevant criteria.101 It has to be recalled that proposals submitted at different times to the United Nations Conference on the Law of the Sea to insert an adverb such as ‘normally’, ‘customarily’, or ‘traditionally’ before ‘used’ have been rejected.102 Additionally, the French equivalent servant, a present participle with the English pendant ‘serving’, suggests that use at the time when the question arises is what really 97

Cf. Myron H. Nordquist et al., United Nations Convention on the Law of the Sea 1982, A Commentary, vol. IV (1991), 317. 98

US Commentary (note 16), 13.

99

In this vein argue Richard R. Baxter, The Law of International Waterways (1964), 3; Daniel P. O’Connell, The International Law of the Sea (vol. 1 1994), 314; Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, ODIL 38 (2007), 3, 35. 100

Nordquist (note 98), 318.

101

US Commentary (note 16), 13.

102

D. H. Anderson/S. N. Nandan, Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982, British Yearbook of International Law 60 (1989), 159, 168; Nordquist et al. (note 98), 318.

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matters.103 It is worth noting that the two conditions were taken and adapted from the Corfu Channel Case.104 In the only international ruling on the issue of straits used for international navigation, the ICJ had to decide on the nature of the North Corfu Channel in a dispute between the United Kingdom and Albania in 1949.105 The court in the Corfu Channel Case mentioned at the outset that “it may be asked whether the test is to be found in the volume of traffic passing through the Strait or in its greater or lesser importance for international navigation.”106 It did add, however, that “in the opinion of the court the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation.”107 The court then held that it cannot be decisive that a strait is not a necessary route between some parts of the high seas, but only an alternative passage.108 It added that the strait in question has nevertheless been a “useful route for international maritime traffic.”109 The same usefulness must also apply to the northern sea lanes when they become icefree. They will then no longer be a mere alternative passage but a necessary one for commercial purposes due to the substantial distance savings. Although the court in the Corfu Channel Case has stressed the criterion of the geographical situation and the fact that use of the strait for international navigation existed, it nevertheless considered the evidence presented by United Kingdom’s representative with regard to the volume of traffic.110 It concluded that “one fact of particular importance is that the North Corfu Channel […] is of special importance to Greece by reason of the traffic to and from the port of Corfu.”111 From this conclusion it does not seem to be entirely clear if past or even historic traffic has to be 103

Anderson/Nandan (note 103), 168.

104

Nordquist et al. (note 98), 317.

105

ICJ, Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4. 106

Ibid., 28.

107

Ibid.

108

Ibid.

109

Ibid.

110

Ibid., 28 et seq.

111

Ibid., 29.

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regarded as having special importance. After all, the evidence cited by the court with regard to traffic concerned a timespan of just 21 months.112 Since traffic will almost certainly pick up quickly in the northern sea routes, once they are ice-free, the above criterion of ‘special importance’ would have to apply here, too. Additionally, ‘special importance’ must apply to the case of the US and most other countries, since impairing or preventing them from using the northern sea lanes would result in a comparative disadvantage in relation to Canada and Russia in terms of commercial traffic and resulting trade. The US has established its intent to use the Northwest Passage and has made some actual use of it.113 In the Northeast Passage, including in the Vilkitsky Strait, Russian navigational activity has predominated, but has not been exclusive.114 Therefore, in conformity with the criterion of the court in the Corfu Channel Case, some international navigation exists in the northern sea lanes.115 It can be argued that “no evidence of use is to be excluded a priori, e.g. as non-traditional or exceptional.”116 Canada however requires a record of past use.117 Such past or historic use can be clearly deduced from neither the relevant provisions of UNCLOS nor the case law. After all, the Corfu Channel Case was decided with respect to a navigational channel that was already being used. Had traffic been absent, this might have served as an indication that the strait was not actually used for international navigation. But the situation is different with respect to a navigational route that, while having all the features of a strait used for international navigation, could not be used as such due to particular 112

From 1 April 1936 to 31 December 1937, see ibid.

113

Indeed, the dispute over the status of the Northwest Passage was triggered when in 1969 the SS Manhattan, an ice strengthened oil tanker accompanied by the US Coast Guard icebreakers Staten Island and North Wind, transited the passage. Prior transit of the Northwest Passage had been undertaken by US Coast Guard Cutters in 1952 and 1957. Subsequent journeys included the US Coast Guard icebreakers Polar Sea and Polar Star in 1985 and 1988, see e.g. Roach/Smith (note 22), 339–353. 114

Two German commercial vessels, the MV Beluga Fraternity and the MV Beluga Foresight made the voyage across the Northeast Passage in 2009, see supra, note 22. 115

Cf. ICJ, Corfu Channel Case (note 106), 28.

116

Anderson/Nandan (note 103), 168–169, arguing that this must be so because the otherwise very similar provision on archipelagic sea lanes passage (Art. 53 (12) UNCLOS) speaks of routes “normally used for international navigation” (emphasis added), while Art. 37 UNCLOS omits the word ‘normally’ in front of ‘used for international navigation’. 117

Cf. Nordquist et al. (note 98), 318.

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circumstances completely foreign to those in the Corfu Channel Case, i.e. the presence of ice. Moreover, it is submitted that since this presence of ice has prevented any larger volume of traffic in the northern sea lanes, both Canada and Russia would be prevented from invoking an argument of absence of sufficient traffic by the general international legal principle of good faith. It is evident both from the established intention of the US and other maritime users, and indeed from the location of the Northwest and Northeast Passages, that they would be and will be used for international navigation were it not for the prevailing navigational hazard of ice.118 This imminent future use has to inform the functional criterion. The unprecedented melting of ice certainly poses a whole new reality for navigation in the Arctic. This was not a situation foreseeable by the voluminous academic work following the Corfu Channel Case.119 Further, if a court were faced with a dispute on navigation in the Arctic sea lanes today, it would most likely give more weight to the geographical criterion than to a strict requirement of past use under the functional criterion. While the unprecedented situation with respect to ice does not make the Arctic a sui generis case, it clearly gives a whole new meaning to the geographic criterion of a strait used for international navigation. Because the Northwest and Northeast Passages will be of imminent overwhelming navigational importance with the melting of ice, there will only be a marginal difference in time between its potential and actual use. To then prevent navigation by invoking only the absence of actual past use under the functional criterion would be an abuse of rights.120 Although it cannot be decided with absolute clarity to what degree actual rather than merely potential use is required under international law, the unprecedented circumstances in the Arctic clearly tip the balance towards potential use as a sufficient criterion.121 The point of time at which the dispute will be brought before a court or tribunal may therefore be decisive. If climate change opens the northern sea routes for 118

See also Handl (note 2), para. 17, who suggests that the very remoteness of the Arctic waters implies a lower evidentiary standard regarding ‘use’, adding that Canada’s denial of the status of the Northwest Passage as an international strait subject to a transit passage regime will lose ground if the growing interest in its use would be given more legal weight, ibid., para. 18. 119

See supra, note 100.

120

Abuse of rights is understood here as a general principle of international law. As such, it is “used to impose limits on the discretion of States and to mitigate their sovereign rights” (Oscar Schachter, International Law in Theory and Practice (1991), 58). 121

Cf. however Lalonde/Byers (note 59), 1174.

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commercial navigation, maritime users, including the US, would most likely be interested in determining their legal status as soon as possible. At the same time, it might be useful to try to establish more navigational use first. This could in turn be prevented by unilateral measures imposed by Canada and Russia, including straight baselines and restrictive passage regimes, arguably in defiance of international law. Much will likely depend on the economic momentum underlying the push for Arctic navigation. Considering each economy’s dependence on global trade, the stakes in the region may after all prove to be more closely connected than is sometimes assumed.

2. Transit Passage, Subject to an Exception In straits used for international navigation, the regime of transit passage applies (Articles 37 and 38 UNCLOS), which is more favourable to the navigator than innocent passage. The regime of transit passage is different from that of innocent passage in so far as the legal positions of the coastal State and the maritime user can be said to be reversed.122 While innocent passage can be regarded as an exception to the sovereign rights of the coastal State in its territorial sea, transit passage can be seen as a positive right of the maritime user subject only to some limited obligations opposite the coastal State.123 Under the innocent passage regime, the coastal State has the right to take measures against a foreign ship whose passage is not innocent (Article 25 UNCLOS). The coastal State has no similar right under the regime of transit passage. Accordingly, transit passage must not be impeded, hampered or suspended through the application of the laws and regulations of the coastal State (Articles 38 (1) and 44 UNCLOS). An exception applies where a strait used for international navigation runs between an island and the mainland. There, the regime of transit passage is not applicable and the regime of non-suspendable innocent passage takes its place (Articles 38 (1) and 45 (1)(a) UNCLOS). This geographical constellation, however, only suspends the regime of transit passage if there is “seaward of the island a route through the high seas or through an [EEZ] of similar convenience with respect to navigational […] 122

Said Mahmoudi, Transit Passage, MPEPIL, para. 20, available via: http://www.mpepil.com (accessed on 30 October 2011). 123

Ibid.

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characteristics.” This criterion cannot readily be said to apply to the area north of Bolshevik Island in the Severnaya Zemlya archipelago or north of the Canadian islands, at least while these areas experience the presence of ice that affects navigation there more adverse than between the island and the mainland. The regime of transit passage should therefore also prevail in the Vilkitsky Strait and between the Canadian islands and the mainland.

E. Exclusive Economic Zone

1. Application and Scope The regime of the Exclusive Economic Zone applies (Article 55 UNCLOS) in those parts of the Northwest Passage where the territorial waters of a Canadian island do not overlap with that of another Canadian island or the Canadian mainland. The same is true of the Northeast Passage and the respective Russian islands and mainland.

2. The Impact of Ice onto Territorial Claims In the Arctic environment, ice-covered sea areas as subject to Article 234 UNCLOS demand some special attention. The provision allows regulations by the coastal State “for the prevention, reduction and control of marine pollution from vessels in icecovered areas within the limits of the exclusive economic zone.” It could be argued that Article 234 UNCLOS moves ice-covered areas away from the EEZ regime towards that of territorial seas. Indeed, Article 234 UNCLOS thus seems to be expanding coastal State jurisdiction versus freedom of navigation. Yet it does so without reversing the priority of navigation over coastal State regulation. In fact, Article 234 UNCLOS equates both agendas when it mandates regulations, which “shall have due regard to navigation and the protection and preservation of the marine environment.” In addition, the purpose of the regulations mandated by Article 234 UNCLOS is common to the general competences of coastal States in the EEZ (cf. Article 56 (1)(b)(iii) UNCLOS). Furthermore, the provision refers its applicability explicitly to the EEZ. Finally, the fact that coastal State legislation under Article 234 UNCLOS has to be non-discriminatory indicates that the provision is not granting more sover-

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eignty to the coastal State in terms of a move away from the regime of the EEZ and towards that of the territorial seas where ice-covered areas are concerned. The issue of Article 234 UNCLOS is somewhat diminished by the fact that the melting of the ice facilitates navigation of significant scale in the first place. Finally, the issue of consolidation of title through continued use may influence the precise geographic delimitation of the EEZ regime. Continued use may be legitimately claimed by Canada and Russia on behalf of their indigenous populations in the Arctic coastal region. Such consolidation of title would likely be accommodated within the framework of drawing an equitable maritime boundary (Articles 74 (1), 83 (1) UNCLOS), rather than as an issue of territorial sovereignty per se. This must especially be true where an ice habitat has melted. Sovereignty over sea areas follows sovereignty over land.124 To make up for the territory of indigenous peoples thereby lost, an equitable solution may be found while drawing any boundary line or defining the location of baselines.

3. Freedom of Navigation In the EEZ, the concept of freedom of navigation applies (Articles 58 (1) and 87 (1)(a) UNCLOS) within basic navigational duties of the vessel and the flag State (Articles 90–115 UNCLOS). In those parts of the Northwest and Northeast Passages that are not enclosed by Canadian or Russian baselines or encroached upon by Canadian or Russian territorial seas, freedom of navigation prevails.

IV. Conclusion It seems quite clear that navigation in the Northwest Passage cannot be unilaterally curtailed under the international legal provisions applicable to Canada and Russia. Under existing international law, navigation through the Arctic coastal waters will benefit from a regime that is more constrained than complete coastal State discretion. 124

ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Merits, Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 96.

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Canada and Russia hardly qualify as archipelagic States in the sense of Part IV UNCLOS and therefore cannot draw archipelagic straight baselines. However, there is still some judicial discretion with respect to e.g. the concept of ‘fringe of islands along the coast’ and thus with respect to the drawing of ordinary straight baselines. But it is unlikely that ordinary straight baselines around the Canadian islands and around some Russian islands would be allowed to enclose much of the Northwest Passage and the Northeast Passage respectively. Yet generally speaking, the extent of maritime entitlements produced by insular features is still unpredictable. In those parts where Canadian and Russian internal waters would be allowed to encroach upon the navigable parts of the Northwest and Northeast Passages, navigational demands would still most likely have to be accommodated as exceptional innocent passage (Article 8 (2) UNCLOS). Key parts of the Northwest and Northeast Passages may likely be characterised as territorial seas. With respect to territorial seas the effect of certain insular features can be multiplied if they are allowed to ‘leapfrog’ and thus connect their territorial seas in a continuous fashion. Also, some weight may have to be given to security and development demands under the principle of non-encroachment as developed by courts and tribunals. Thus, Russia and Canada could be granted leeway when covering narrow parts of the Northwest and Northeast Passages with territorial seas. The regime of innocent passage in the territorial sea thus deserves the attention it was given in the case law. In the long run however, both Arctic sea lanes will likely qualify as ‘straits used for international navigation’, with their beneficial navigational regime. The overwhelming practicality of the northern sea lanes in circumstances of absent ice is testimony enough for that legal characterisation. It should be emphasised that the demands of naval mobility will not be the only economic and environmental interests influencing a delimitation dispute. Generally speaking, the goal of an equitable solution as demanded by modern maritime delimitation will influence a finding on the legal status of maritime areas and the applicable navigational regimes in the Arctic coastal waters.

Continental Shelf Delimitation and Delineation in the Arctic: Current Developments NELE MATZ-LÜCK(

ABSTRACT: While recent years have seen bilateral agreements on the delimitation of maritime zones including the continental shelf between Arctic neighbours, e.g. between Norway and Russia, the limits of the outer continental shelves in the Central Arctic Ocean close to the North Pole have not yet been decided upon. Although there seems to be a trend towards using equidistance as the outset for maritime delimitations, current practice in the Arctic does not clearly reflect preference of this principle. In the Central Arctic Ocean, Russian claims, which have been submitted to the Commission on the Limits of the Continental Shelf (CLCS), may potentially overlap with future claims by Canada and Denmark/ Greenland. The fact that the US is not party to the UN Convention on the Law of the Sea (UNCLOS) further complicates the matter. If the CLCS cannot give final recommendations on the outer limits of the continental shelves in the Central Arctic Ocean because of disputes concerning overlapping claims or if recommendations are not accepted, those States with claims in the area will have to reach an agreement among themselves or resort to dispute settlement. There are no indications, however, that major political conflict may arise over the Arctic’s continental shelf boundaries. KEYWORDS: Arctic, continental shelf, delimitation, delineation, law of the sea, Commission on the Limits of the Continental Shelf

I. Introduction Ever since States have claimed jurisdiction over parts of the seas adjacent to their coasts they have had to delineate the extension of their territorial seas and other maritime zones over which they exercise jurisdictional rights. For most coastal States the designation of the limits of their maritime zones includes a process of delimitation with their neighbours where jurisdictional zones meet or would otherwise (

Professor of the Law of the Sea at the University of Kiel, and Co-Director of the Walther-SchückingInstitute for International Law.

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overlap. The delimitation of maritime zones between two States with adjacent coasts may be equally difficult as those between two or more States with opposite coasts.1 Dispute settlement decisions by arbitral tribunals and the International Court of Justice (ICJ) have contributed to shaping international law on maritime delimitation in cases where States were unable to reach an agreement. Moreover, principles which have been taken into account when delimiting maritime zones in disputed areas are reflected in State practice.2 The relevant legal guidance for delimitation applies to the territorial sea as well as to the Exclusive Economic Zone (EEZ) and the continental shelf, although the relevance of certain criteria to achieve an equitable solution must be assessed on a case by case basis. With regard to maritime boundary delimitation in the Arctic,3 the applicable law does not principally differ from other regions. Yet, State practice as reflected in delimitation agreements does not generally follow the trend to base delimitation upon equidistance and to correct the provisional median line in accordance with special circumstances. Different perceptions concerning the applicability of sector theory as the basis for delimitation, the validity of historic treaties, the status of islands, the special regime concerning Svalbard, and claims4 for extended continental shelves beyond 200 nautical miles, which may overlap in the middle of the Central Arctic Ocean, are specific issues which have to be taken into consideration. States are free to delimit their maritime boundaries without recurring to any specific method or principles of delimitation. Yet, Arctic particularities seem to make the settlement of open questions 1 Examples for disputes concerning lateral boundaries include the one between Croatia and Slovenia concerning delimitation in Piran Bay, which has finally been submitted to arbitration, and the still unsettled question of the sea boundary between Germany and the Netherlands in the Ems-Dollard region, which is likely to be referred to formal dispute settlement in the near future. 2

On the methodology of maritime delimitation see Yoshifumi Tanaka, Reflections on Arctic Maritime Delimitations: A Comparative Analysis between the Case Law and State Practice, Nordic Journal of International Law 80 (2011), 459, 469 et seq. 3

Throughout this study the terms ‘Arctic’ or ‘Arctic waters’ refer to the Arctic Ocean and its marginal seas north of the Arctic Circle. 4

In connection with the continental shelf, whether extended or not, the term ‘claim’, as Vladimir Golitsyn has rightly stated, is not precise because, as repeated by Art. 77 (3) UNCLOS, coastal States’ rights over the continental shelf are inherent and do not depend upon any further act or, to that extent, claims. See Vladimir Golitsyn, Continental Shelf Claims in the Arctic Ocean: A Commentary, International Journal of Marine and Coastal Law (IJMCL) 24 (2009), 401. The present paper nevertheless uses the term ‘claim’ to describe the situation with regard to the extension of the continental shelves beyond 200 nautical miles in the Arctic. In this context, the term allows to take note of the involvement of the CLCS for defining the limits.

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slightly more complicated when compared to other regions. Recent developments reflect the importance attributed to these issues and demonstrate a potential for conflict but likewise a willingness to strive for an agreement on delimitation issues. Navigation and the exploitation of resources have become priority topics for the Arctic due to a continuing gradual warming of the atmosphere and observations on shrinking ice cover in the region. Defining the limits of the Arctic littoral States’ continental shelves has gained particular attention in recent years with two bilateral treaties and two submissions to the Commission on the Limits of the Continental Shelf (CLCS) relevant to the Central Arctic Ocean, one of which has been already been answered with a recommendation.5 Presumptions concerning the wealth of natural resources under the floor of the Arctic Ocean have fuelled the discussion, and the decline of Arctic ice together with new technical developments enhance the chances for the future commercial exploitation of mineral resources.6 Further, continental shelf delimitation between neighbouring States, as well as claims for extended continental shelves beyond 200 nautical miles from the baselines are matters of immediate importance to States, due to the economic relevance of holding exclusive sovereign rights for exploration and exploitation of resources in accordance with Article 77 (1) and (2) UNCLOS.7 In the Arctic context, rights concerning extended continental shelves may have the effect that one or more States enjoy exclusive jurisdiction over the resources of most parts of the Arctic Ocean’s seabed. This prospective circumstance has raised discussions on who ‘owns’ the North Pole and its undiscovered resources.8 As a result, 5

CLCS, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006, 5, para. 11, available at: http://www.un.org/depts/ los/clcs_new/submissions_files/nor06/nor_rec_summ.pdf (accessed on 7 February 2012). 6 Although further study is certainly needed, authors repeat estimations (the scientific foundation and origin of which is often not quite clear) that “the extensive Arctic continental shelf may constitute the largest unexploited prospective area for oil and gas resources remaining on Earth,” Golitsyn (note 4), 402 et seq. A study undertaken by the US Geological Survey in 2009 concluded that “about 30 % of the world’s undiscovered gas and 13 % of the world’s undiscovered oil may be found [in the Arctic], mostly offshore under less than 500 meters of water,” Donald L. Gautier et al., Assessment of Undiscovered Oil and Gas in the Arctic, Science 324 (2009), 1175. 7 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 397 (UNCLOS). 8

Brian Beary, Race for the Arctic: Who Owns the Region’s Undiscovered Oil and Gas?, CQ Global Researcher 2 (2008), 213.

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although the legal issues which are involved are not new, all riparian States give enhanced attention and political priority to concerns over exclusive exploitation rights for Arctic mineral resources on their continental shelves. In recent years an extensive body of legal writing has likewise focused on the Arctic as an area for which the different issues concerning the law of the sea, and, particularly, the law and policy of continental shelf delineation and delimitation have gained importance.9 It is not the purpose of this paper to judge whether hopes for exploiting large quantities of oil, gas and precious metals in ice-covered areas far beyond the coastlines will ever be realised or whether claims to extended continental shelves will be economically meaningless. The objectives of this study are to reconsider the current developments and to put them into context, as well as to revisit the mechanisms of delineation and delimitation in a region where all littoral States claim specific interests concerning resource exploration and exploitation. This serves as the basis for an outlook on the future governance of the Arctic and the development of the international law on continental shelf delimitation. In a first step, this paper gives a brief overview of the law applicable to the delineation and delimitation of maritime zones including continental shelves up to and beyond 200 nautical miles (see infra, II.). It will then evaluate current developments in the Arctic, providing an assessment of recent delimitation efforts on the one hand, and of unsettled questions of continental shelf delimitation on the other hand (see infra, III.). The article closes with some thoughts on how issues concerning Arctic continental shelf delineation and delimitation can be settled in the future (see infra, IV.).

II. The Delineation and Delimitation of the Continental Shelf in International Law Much has been written on the law governing delineation and delimitation of the continental shelf in general, and on the methods and procedures for establishing the 9

From the extensive body of legal writing see only Alexander Proelss/Till Müller, The Legal Regime of the Arctic Ocean, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68 (2008), 651; Travis Potts/Clive Schofield, An Arctic Scramble? Opportunities and Threats in the (Formerly) Frozen North, IJMCL 23 (2008), 151; J. Ashley Roach, International Law and the Arctic: A Guide to Understanding the Issues, Southwestern Journal of International Law (Sw JIL) 15 (2009), 301.

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limits of an outer continental shelf in particular.10 The Arctic has been used as one of the prime examples highlighting the difficulties involved in defining them.11 The following section does not seek to describe in detail the relevant law or repeat an analysis of the interpretation of Article 76 UNCLOS. Yet, it is necessary to give an overview of the relevant legal issues to put the current developments of Arctic continental shelf delineation and delimitation into perspective.

A. The Distinction Between Delineation and Delimitation

Although the terms have not been defined in a legally binding manner, the delineation of maritime zones implies a unilateral act by which a State designates the relevant boundaries, whereas delimitation typically refers to the consensual settlement of boundary issues with neighbouring States (i.e. those with adjacent or opposite coasts).12 The use of the terms in the Convention on the Law of the Sea supports this view. Articles 15, 74, 76 (10) and 83 UNCLOS refer to the ‘delimitation’ of boundaries concerning two or more States with adjacent or opposite coasts. And Article 76 (4) and (7) UNCLOS use the term ‘delineated’ and ‘delineate’ to describe the line with which States fix the limit of their continental shelf by a unilateral act. Only Article 50 UNCLOS deviates from the distinction implied by the other provisions, and alludes to regulating the “delimitation of internal waters” of an archipelagic State, although the boundary between internal and territorial waters of the same State cannot involve its neighbours. Another exception to the common opinion on how to distinguish between delimitation and delineation is a ruling of the ICJ. In its judg-

10

See inter alia Suzette Suarez, The Outer Limits of the Continental Shelf (2009), 242 et seq.

11

See Ted L. McDorman, The Continental Shelf beyond 200 nm: Law and Politics in the Arctic Ocean, Journal of Transnational Law and Policy 18 (2008/2009), 155; Alex G. Oude Elferink, The Outer Continental Shelf in the Arctic: The Application of Article 76 of the LOS Convention in a Regional Context, in: id./Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001), 139; Vladimir Jares, The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Arctic, Vanderbilt Journal of Transnational Law 42 (2009), 1265; Peggy C. Y. Leung, Arctic Continental Shelf Delineation and Delimitation: The Significance of Ratifying the United Nations Convention on the Law of the Sea and the Sector Theory, Ocean Yearbook (OY) 24 (2010), 475. 12

Proelss/Müller (note 9), 675 footnote 93.

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ment in the Fisheries Case13 the ICJ stated that “the act of delimitation is necessarily a unilateral act.” The opposite is terminologically correct: delimitation, as the term is used throughout this paper, necessarily involves two or more States, whereas maritime delineation is defined as a unilateral act. In delineating their maritime zones, States fix the limits as well as the baselines from which the different zones are measured by a national act, through legislation. The designation of the boundaries between States with adjacent or opposite coasts no longer allows for unilateral delineation as a valid means, but requires the agreement of all the States involved. The ICJ has stated in the Gulf of Maine Case that “no maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States.”14 This is also emphasised by Articles 15, 74 (1), 83 (1) UNCLOS. Usually, States conclude international treaties on specific boundary issues which, in the maritime context, can involve one or more sea zones. Lateral boundaries can include the territorial sea, the EEZ and the continental shelf up to 200 nautical miles and, with regard to the latter, the area beyond.15 In the past, many States have appealed to the ICJ16 or to arbitration,17 if they could not reach an agreement on the delimitation of sea boundaries. So far, only one case concerned the Arctic: the Jan Mayen Case.18 Other cases have either involved all possible maritime zones from the territorial sea onwards,19 or specifically concern certain zones such as 13 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116, 132. 14

ICJ, Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports 1984, 246, 299, para. 112. 15

Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, 1 June 1990, ILM 29 (1990), 942. 16

A recent example from the vast body of jurisprudence is the case ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61. 17

E.g. Arbitration between Barbados and the Republic of Trinidad and Tobago Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf Between Them, 11 April 2006, Reports of International Arbitral Awards XXVII, 147. 18

ICJ, Greenland/Jan Mayen Case (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports 1993, 38. 19

See most recently the pending dispute before the International Tribunal for the Law of the Sea (ITLOS) between Bangladesh and Myanmar concerning the maritime boundary between both States in the Bay of Bengal. Cf. ITLOS, Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar (Bangladesh v. Myanmar), Notification under Article 287 and Annex VII, Article 1 of UNCLOS and the Statement of the Claim and Grounds on which it is based, 8 October 2009, paras. 24

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the well-known North Sea Continental Shelf Cases which were decided by the ICJ in 1969.20 With regard to the fixing of the outer limits of the continental shelf beyond 200 nautical miles the act of defining the boundary is typically a unilateral act of delineation. Article 76 (8) UNCLOS sets down a procedure which obliges States parties to submit information on the extension of their continental shelves to the CLCS, to enable it to give a recommendation. This process, however, does not change the legal character of the national delineation act. The recommendation as such is neither legally binding for the submitting coastal State nor for any other UNCLOS member or third States. The legal effect of the boundary being “final and binding” as stated in Article 76 (8) UNCLOS refers to the national act of delineation when it is established on the basis of the CLCS recommendation. However, as with all other acts of maritime delineation, the legal authorisation to define boundaries by unilateral decision does not apply to overlapping continental shelves by States with adjacent or opposite coasts up to and beyond 200 nautical miles. Moreover, Article 76 (10) UNCLOS and Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf21 specify that the CLCS does not give recommendations for disputed areas and, consequently, States have to agree upon delimitation of their extended continental shelves.

B. Legal Principles of Maritime Zone Delimitation

In the course of negotiations on maritime delimitation issues States often express different views as to where the boundary between their maritime zones should be. The failure to agree upon an equitable solution has meant that negotiations regarding the boundary in the Barents Sea took more than 40 years before Russia and Norway reached an agreement. On other disputed boundaries in the Arctic, States have so far

et seq., available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Notification_ Bangladesh_14.12.09.pdf (accessed on 6 February 2012). 20 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. 21

Rules of Procedure of the Commission on the Limits of the Continental Shelf, 17 April 2008, UN Doc. CLCS/40/Rev.1 (2008).

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failed to find a consensual solution. This includes the delimitation of the continental shelves between adjacent coastal States, such as, for example, Canada and the US. International treaties, but particularly, decisions by courts and tribunals have contributed to a large body of legal guidance for designating the boundary where States cannot reach an agreement on the delimitation of their maritime zones.22 While the reference to equity as the guiding approach is evident, two different ways through which an equitable solution can be achieved have become apparent: the ‘result-oriented equity approach’, and the ‘corrective-equity approach’.23 While the first does not rely upon any specific principle such as equidistance, it offers maximum flexibility as long as the result qualifies as equitable. The second approach takes a provisional median line as the outset, and then adjusts this line in accordance with the applicable special circumstances.24 With regard to the continental shelf, the Proclamation by the then President of United States25 (Truman Proclamation) states as early as 1945 that “[i]n cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles.”26 While equity is the ultimate goal the Proclamation is silent on specific methods. Both Article 74 (1) and Article 83 (1) UNCLOS emphasise that the ultimate objective of agreements on delimitation is “to achieve an equitable solution.” Yet, opinions on what is equitable and how to achieve equity may differ fundamentally between States involved in delimitation negotiations or disputes. In contrast to the Geneva Convention on the Continental Shelf,27 UNCLOS does not give explicit preference to the equidistance or any other principle for delimiting the continental shelves. Instead, the Convention refers to ‘international law’ as 22

On maritime delimitation cases see Tullio Scovazzi, Maritime Delimitation Cases before International Courts and Tribunals, MPEPIL, available via: www.mpepil.com (accessed on 6 February 2012). 23

On the distinction see Tanaka (note 2), 470 et seq.

24

Examples for both approaches in ICJ jurisprudence are analysed ibid.

25

President Harry S. Truman.

26

President Truman’s Proclamation on US Policy Concerning Natural Resources of Sea Bed and Fisheries on High Seas, 28 September 1945, reprinted in: American Journal of International Law 40 (1946) Supplement, 45, 46. 27

Convention on the Continental Shelf, 29 April 1958, UNTS 499, 311.

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derived from the recognised sources, and, ultimately, to Part XV, on the settlement of disputes, instead. The same applies for delimiting adjacent or opposite EEZ (Article 74 UNCLOS). It is only in delimitations concerning the territorial sea that UNCLOS give explicit preference to the median line as the equitable principle (unless there are special circumstances which require a different solution (Article 15 UNCLOS)). The drafters of the Convention deliberately evaded explicit references to delimitation principles, as agreements on explicit delimitation principles for the EEZ and continental shelf was considered so difficult that it could have precluded the adoption of the Convention’s text.28 In essence, the Convention on the Law of the Sea gives a predominant role to dispute settlement bodies to define the legal principles for maritime delimitation, where parties fail to agree. While the compulsory dispute settlement procedure established by Part XV, section 2 UNCLOS seems a viable means to settle delimitation disputes, Article 298 (1)(a)(i) grants States parties the option to exempt sea boundary delimitation from the compulsory procedures, in accordance with Article 83. Many parties, including the Arctic States Canada and Russia, have made use of the opt-out clause. As mentioned above, the equidistance principle plays a significant role in the corrective-equity approach to delimitation. While it seems plausible to simply refer to a median line for delimitation, equidistance is only the starting point of searching for an equitable solution. This principle was codified in Article 6 (1) Geneva Convention on the Continental Shelf. This provision refers to the “median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.” However, if the result does not meet expectations from the perspective of equity one must depart from equidistant lines as the sole determining factor in boundary claims. Article 6 (1) Geneva Continental Shelf Convention recognised this by providing that delimitation shall follow the equidistance principle “unless another boundary line is justified by special circumstances.” Taking into account the development of the law through the ICJ and arbitral tribunals, the corrective-equity approach now seems to be the predominant one applied in dispute settlement.29 The approach involves the drawing of a provisional 28

Scovazzi (note 22), para. 1.

29

Tanaka (note 2), 473.

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median line, (i.e. delimitation according to equidistance is taken as the basis), and in a second step, the median line can be modified in the light of special circumstances. These circumstances, as reflected in the case law, primarily relates to geographical factors, e.g. proportionality of coastlines, presence of islands.30 In the Case concerning Maritime Delimitation in the Black Sea, the ICJ employed a further corrective measure by evaluating as a third step, whether the result was inequitable due to a “marked disproportion between the ratio of respective coastal lengths and the ratio of relevant maritime area of each State.”31 With regard to the Arctic, reliance on the ‘sector theory’ either as a different principle for delimitation or as a special circumstance has been employed as an argument to justify deviation from equidistance.32 Delimitation in accordance with the sector theory would result to States defining their Arctic maritime boundaries along meridian lines. Originally, States had proposed the sector theory in order to claim wedges of territory, i.e. land and islands, but likewise waters or ice all the way to the Pole.33 Such ‘pie-shaped’ pieces of territory delineated along meridian lines are prominent in Antarctica. Although States no longer uphold comparable considerations with regard to the North, practice shows that meridians still play a role in delimitation in the Arctic. The Russian Federation, for example, has maintained reference to the sector theory as a method of delimitation during the negotiations with Norway over the maritime boundary in the Barents Sea.34 Another example for promoting reliance upon meridians for delimitation is given by Canada concerning the lateral boundary with the US in the Beaufort Sea, although Canada no longer generally proposes the sector theory for waters.35

30

Ibid., 475 et seq.

31

ICJ, Maritime Delimitation in the Black Sea (note 16), para. 122.

32

Alex G. Oude Elferink, Arctic Maritime Delimitations: The Preponderance of Similarities with other Regions, in: Oude Elferink/Rothwell (note 11), 179, 188. 33 With reference to Canada see Erik Franckx, Maritime Claims in the Arctic – Canadian and Russian Perspectives (1993), 79 et seq. and 90 et seq. On the evolution of the sector theory from a principle concerning sovereignty to one on jurisdiction see also Leung (note 11), 491. 34 35

Oude Elferink (note 32), 182.

On the Canadian position see Robin R. Churchill, Claims to Maritime Zones in the Arctic – Law of the Sea Normality or Polar Peculiarity?, in: Oude Elferink/Rothwell (note 11), 105, 122 et seq.

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C. The Legal Regime of the Continental Shelf

The development of the law of the sea resulted in the extension of maritime spaces (at least partially) under national jurisdiction from three nautical miles – the former, widely accepted limit of the territorial sea36 – to an EEZ with a breadth of 200 nautical miles. This is measured from the baselines with the continental shelf as the natural submarine prolongation of the land which may, under certain circumstances, extend beyond this margin. The Truman Proclamation of 194537 paved the way for national proclamations concerning jurisdictional rights over the continental shelves’ seabed and subsoil resources. According to the Truman Proclamation it was the policy of the United States to “regard […] the natural resources of the subsoil and the sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.” Codifications of the international law of the sea have since explicitly recognised exclusive exploitation rights concerning the continental shelves’ natural resources by coastal States. The 1958 Geneva Convention on the Continental Shelf did so in its Article 2. UNCLOS specifies the legal effect of jurisdiction over the continental shelf in Article 77 (1). The value of exclusive sovereign rights for exploitation purposes made shelf delimitation an important issue in maritime boundary negotiations as well as in relevant disputes.38 It is undisputed in international law that rights concerning the continental shelf are inherent and do not depend upon any act of ‘claiming’ the shelf. Article 77 (3) UNCLOS explicitly states that no act of occupation or express proclamation is needed to benefit from the specified rights over the continental shelf. Rights exist 36 The wide – although not uncontested – recognition of a territorial sea of three nautical miles was replaced when a growing number of States extended the limits to twelve nautical miles during the second half of the 20th century. The twelve-mile limit was codified in Art. 3 UNCLOS and is according to Robin R. Churchill/Alan V. Lowe, The Law of the Sea (3rd ed. 1999), 80 “now firmly established in international law”. 37

President Truman’s Proclamation on US Policy Concerning Natural Resources of Sea Bed and Fisheries on High Seas (note 26). 38 ICJ, North Sea Continental Shelf Cases (note 20); id., Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, 18; id., Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports 1985, 13.

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“ipso facto and ab initio, by virtue of [a State’s] sovereignty over the land, and as an extension of it.”39 According to the contiguity approach,40 the prerequisite for exclusive exploration and exploitation rights is the possession of land territory with a coastline towards the sea. While rights concerning the natural resources are perceived as inherent, international law has different criteria for defining what forms part of the continental shelf of a coastal States. In addition to contiguity principle, other methods for defining the continental shelf appertained to a coastal State include depths or distance from the coasts.41 The Geneva Convention on the Continental Shelf operated with a combination of the criterion of depth and exploitability without further specifying elements of the continental shelf such as the continental margin. Article 1 Geneva Convention provided that the continental shelf consisted of the seabed and subsoil of submarine areas outside the scope of the territorial sea “to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources.” The criterion relating to the depth admitting exploitation is imprecise and raises questions as to whether exploitability refers to technical means in an abstract way or whether the coastal State must be able to exploit the relevant resources. In this case, it would put developing States into a disadvantageous position, whereas a few highly developed States with technical means to exploit resources even on the deep seabed would profit. In 1982 UNCLOS supplemented contiguity with a second criterion which relies on distance by introducing the concept of the ‘juridical continental shelf’. This shelf is defined as extending to a limit of 200 nautical miles from the baselines (the second alternative criterion in Article 76 (1) UNCLOS). Rights concerning this zone are guaranteed to every coastal State even where the shelf ends at a shorter distance from the coasts, i.e. jurisdictional rights exist regardless of geological criteria. This concept has explicitly been recognised by the ICJ in the delimitation case between Libya and Malta: 39

ICJ, North Sea Continental Shelf Cases (note 20), 23, para. 19.

40

On the different concepts of contiguity and distance see Peter-Tobias Stoll, Continental Shelf, MPEPIL, paras. 13 et seq., available via: www.mpepil.com (accessed on 28 February 2012). 41

The UN Convention on the Law of the Sea at least partially follows the distance method by establishing a 200 nautical miles limit in Art. 76 (1). Moreover, the definition of the ultimate limits of the extended continental shelf alternatively follows distance (350 nautical miles) or water depth (100 nautical miles from the 2,500 metres isobath) in accordance with Art. 76 (5) UNCLOS.

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The Court however considers that since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.42

As the definition of the continental shelf in Article 76 (1) UNCLOS takes the natural prolongation of the land up to the outer edge of the continental margin as the outset, Article 76 UNCLOS also enables States to extend their exploitation rights to an area as far off the coasts as 350 nautical miles and even beyond. The precondition is that this corresponds to the ‘geological continental shelf’ and that certain further criteria are met (Article 76 (4)–(6) UNCLOS). Reliance upon geological criteria and the procedural obligation to submit information on the delineation of the outer limit of the continental shelf beyond 200 nautical miles to the CLCS typically requires the gathering of scientific evidence to found a State’s submission. In the Arctic, which is less well known due to climatic conditions, States have jointly undertaken research cruises to map parts of the seafloor.43 The different methods in Article 76 UNCLOS for establishing the outer limits of the continental shelf and references to underwater features, such as ‘oceanic ridges’, ‘submarine ridges’ and ‘submarine elevations’, are not clearly defined; this makes the article one of the most complicated provisions in the Convention. As far as the exploration and exploitation of mineral resources are concerned, UNCLOS designates all parts of the ocean floor to either a regime of exclusive sovereign rights of coastal States or to the common heritage of mankind (Article 136 UNCLOS). In case of the latter, resources are subject to administration by the International Seabed Authority (ISA) in accordance with Part XI of UNCLOS. As a result, all exploration and exploitation activities on or under the seabed are subject to regulation by either the coastal State or the ISA. While it is often disputed between adjacent or opposite States regarding where the continental shelf of the one ends and the other begins,44 the possibility of extending

42

ICJ, Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta) (note 38), 35, para. 39.

43

Ilulissat Declaration of 28 May 2008, reprinted in: ILM 48 (2009), 382.

44

The relevant case law by the ICJ and arbitral tribunals as well as customary law have shaped the principles for continental shelf delimitation which reflect back to interpret the rules established by

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the continental shelf beyond the limit of 200 nautical miles, in particular, may give rise to controversy in the Arctic Ocean. Regardless of whether and when such exploitation will be economically feasible, Arctic States have either already submitted information on the outer limits of their continental shelves to the CLCS;45 have reacted to the two submissions already made;46 or have referred to future submissions; which, as far as the Central Arctic Ocean is concerned, are possible just for Canada and Denmark.47 The US, the only Arctic State which is not a member to UNCLOS, has been closely following the CLCS process and regularly comments on other States’ submissions,48

UNCLOS. On the relevant applicable law in delimitation cases see Arbitration between Barbados and the Republic of Trinidad and Tobago (note 17), para. 223. 45 Russia submitted information on the extension of the continental shelves beyond 200 nautical miles in the Arctic and the Pacific Ocean on 20 December 2001, see infra, III.C.1. Norway submitted information on the outer limits of extended continental shelves in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006, see infra, III. C. 2. 46

The Secretary-General notifies all UN Member States of submissions to the CLCS in accordance with Rule 50 of the CLCS Rules of Procedure to give them the opportunity to communicate any observations. Canada, Denmark/Greenland, Norway and the US have commented on the Russian submission concerning the Arctic Ocean by communications, available via: http://www.un.org/depts/los/clcs_new/ submissions_files/submission_rus.htm (accessed on 6 February 2012). With regard to the parts of the Norwegian submission which concern the Arctic, Denmark/Greenland and Russia commented respectively: Note verbale No. 119.N.8 from the Permanent Mission of Denmark to the United Nations, 24 January 2007, available at: http://www.un.org/depts/los/clcs_new/submissions_files/nor06/dnk07_ 00218.pdf (accessed on 6 February 2012); Note verbale No. 82/n from the Permanent Mission of the Russian Federation to the United Nations, 21 February 2007, available at: http://www.un.org/depts/los/ clcs_new/submissions_files/nor06/rus_07_00325.pdf (accessed on 6 February 2012). 47 Canada has announced to present its submission “to secure recognition for the maximum extent of its continental shelf in both the Arctic and Atlantic oceans” by the end of 2013; cf. Canada’s Northern Strategy (2009), 12, available at: http://www.northernstrategy.gc.ca/cns/cns.pdf (accessed on 6 February 2012). Since Canada has ratified UNCLOS on 7 November 2003, the ten-year time period for making submissions to the Commission in accordance with Art. 4 of Annex II to UNCLOS will expire in 2013. Denmark, having ratified on 16 November 2004, has until the year 2014 to submit information on the outer limits of the continental shelf to the CLCS. In its partial submission concerning the continental shelf south of the Faroe Islands, Denmark has announced that it will submit information on further areas including the area north of Greenland within its ten-year period; cf. Partial Submission of the Government of the Kingdom of Denmark together with the Government of the Faroes concerning the Southern Continental Shelf of the Faroe Islands, Executive Summary, 5, available at: http://www. un.org/depts/los/clcs_new/submissions_files/dnk54_10/SFM-Executive_Summary_secure.pdf (accessed on 6 February 2012). 48

In case of the Russian submission the US points out differences in scientific opinion “regarding key aspects of the proposed submission” and proposes further consideration and broad debate, cf. Letter by the Permanent Representative of the United States of America to the United Nations, 28 February 2002, available at: http://www.un.org/depts/los/clcs_new/submissions_files/rus01/CLCS_01_2001_ LOS__USAtext.pdf (accessed on 6 February).

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without specifying whether it plans to proclaim an extension of its continental shelf in the Arctic and where it would delineate the outer limits. Article 76 (8) UNCLOS provides that the limits of the shelf “established by a coastal State on the basis of [CLCS] recommendations shall be final and binding,” but is silent on a delineation not based upon the recommendation and on disputes over whether or not an act of delineation is in accordance with a recommendation. The qualification of ‘final and binding’ does not rule out that States seek the decision of a dispute settlement body to adjudicate whether an act of delineation is effectively based upon a recommendation.49 The coastal State, to which a recommendation is addressed, however, cannot challenge the findings by the CLCS. UNCLOS, in its Annex II Article 8, requires coastal States to make a revised or new submission to the Commission in cases of disagreement with the recommendation within a reasonable time. This procedural obligation, however, does not specify any ending of the ‘pingpong’ process. In theory, it could go on infinitely if opinions differ in an incompatible manner until the submitting State designates the boundary in disregard of the recommendation.50 Following this, a decision by the CLSC regarding the boundary is not necessarily final and binding, as it is likely to be challenged. To fix limits of the extended continental shelf in disputed areas, an agreement between the relevant parties is necessary (Articles 76 (10), 83 (1) UNCLOS). The Commission’s lack of competence to decide on disputes is explicitly recognised by paragraph 1 of Annex I to the Rules of Procedure of the CLCS. Paragraph 5 of this Annex bars the Commission from considering and qualifying a submission of one of the disputing parties to ensure that there is no prejudice concerning the matter, unless all States that are party to the dispute in question consent to the Commission’s examination (Rules of Procedure of the CLCS, Annex I, paragraph 5 (a)). Yet, even if the other States concerned do not raise objections to the Commission considering the submission on the disputed area, any potential recommendation is still without prejudice to delimitation in that area (Rules of Procedure of the CLCS, Annex I, paragraph 5 (b)). States involved in disputes over maritime boundaries regularly point

49 Rüdiger Wolfrum, The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf, in: Rainer Lagoni/Daniel Vignes (eds.), Maritime Delimitation (2006), 19, 25. 50

Ibid.

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this out explicitly in their communications to the United Nations,51 as has been the case with the submissions on the Arctic.

III. Continental Shelf Delineation and Delimitation in the Arctic A. Relevant Issues

Political rhetoric, the demonstrative – yet merely symbolic52 – planting of a Russian flag by a research submersible on the ocean floor well beyond 200 nautical miles from the coast and the relevant coverage in the international media have sparked the impression that maritime delimitation issues in the Arctic may give rise to severe conflicts between the rim States. Although the scarcity of fossil fuels may put greater pressure on the exploration and exploitation of the presumed wealth lying underneath the Arctic ice, scenarios of a ‘new cold war’ or a “battle over the North Pole”53 including military conflict are oversimplifications.54 A solution based on an agreement is a much more likely prospect for the future. It remains to be seen whether equidistance will be the predominant approach for the delimitations of continental shelves up to, and, potentially beyond 200 nautical miles or whether specific criteria for Arctic delimitation will crystallise. So far, a comparison of State practice concerning shelf delimitation beyond 200 nautical miles does not clearly indicate preferences for certain rules.55 51 In the case of the Arctic both Denmark/Greenland and Russia have consented to the Commission examining the Norwegian submission, while making the ‘without prejudice’ qualification, see Note verbale No. 119.N.8 from the Permanent Mission of Denmark to the United Nations (note 46); Note verbale No. 81/n from the Permanent Mission of the Russian Federation to the United Nations (note 46). 52

On the legal irrelevance of this performance see Betsy Baker, Law, Science, and the Continental Shelf: The Russian Federation and the Promise of Arctic Cooperation, American University International Law Review 25 (2010), 251, 258 et seq.; Nele Matz-Lück, Planting the Flag in Arctic Waters: Russia’s Claim to the North Pole, Goettingen Journal of International Law 1 (2009), 235, 243. 53 This example refers to the title of a report in a German weekly magazine; Gerald Traufetter, Der Kampf um den Nordpol, Der Spiegel 38 (2008), 15 September 2008, 160, available at: http://www. spiegel.de/spiegel/print/d-60135213.html (accessed on 6 February 2012). 54 On the assessment of the potential for conflict from the perspective of international relations see Ian G. Brosnan, Cooperation or Conflict in a Changing Arctic, Ocean Development and International Law (ODIL) 42 (2011), 173. 55

Tanaka (note 2), 469.

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In the Ilulissat Declaration, the five Arctic rim States have confirmed their dedication to adhere to the law of the sea for the “orderly settlement of any possible overlapping claim.”56 This gives no indication as to the underlying principles but merely refers to peaceful dispute settlement. As the settlement of disputes is one of the cornerstones of UNCLOS, reference to an ‘orderly settlement’ within the “legal framework for the law of the sea”57 must be understood to involve all necessary means for reaching an agreement. However, in most cases the submission of disputes over the delimitation of continental shelves in the Arctic to the compulsory procedure entailing binding decisions under Part XV, section 2 of the Convention would be prevented. The US is not party to the Convention; and Canada and Russia have opted out of any compulsory dispute settlement procedure concerning delimitation issues; whereas Denmark and Norway preclude the establishment of an arbitral tribunal to decide upon delimitation issues but have allowed for the settlement of maritime boundary disputes by the ICJ.58 It is now commonly accepted that UNCLOS and customary international law of the sea are applicable to Arctic boundaries, despite the fact that large parts are temporarily or permanently ice-covered. The law of the sea does not have a distinction between fluid and frozen waters. Although ice-covered areas are considered particularly vulnerable which is why coastal States have competences to enact specific regulations for their protection (Article 234 UNCLOS), the issue of boundaries in icecovered or solidly frozen waters is not treated differently from those in other regions.59 The fact that there is no single specific and all-encompassing treaty for the Arctic, and the fact that the five immediate littoral States have clearly signalled that they do

56

Ilulissat Declaration (note 43).

57

Ibid.

58

A table indicating the choice of procedure and the opting-out from compulsory dispute settlement in accordance with Art. 298 (1) UNCLOS is available at: http://www.un.org/depts/los/settlement_ of_disputes/choice_procedure.htm (accessed on 6 February 2012). 59

Former ideas on the extension of sovereignty over ice-covered areas which had been promoted by Soviet commentators as an ‘ice-is-land’ theory have been given up after the adoption of UNCLOS, although the Russian Federation ratified UNCLOS only in 1997; see Franckx (note 33), 170 for an evaluation of Soviet and Russian writings. On the idea of dividing the entire Arctic ocean, whether frozen or not, into five national sectors as one possible governance strategy due to the exceptional character of the Arctic see Douglas M. Johnston, The Future of the Arctic Ocean: Competing Domains of International Public Policy, OY 17 (2003), 596, 616.

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not see a need for such instrument,60 this void has been lamented by scholars.61 Although some issues such as the protection of the Arctic marine environment may benefit from a binding instrument between all the Arctic States and other States,62 delimitation issues are bilateral in nature.63 Even if more than two States were concerned with the continental shelf delimitation in the Central Arctic Ocean, questions concerning the boundaries between them would most likely not be part of a comprehensive ‘Arctic Treaty’. In this regard the situation is distinct from the one in Antarctica.64 In the case of the conclusion of the treaty on Antarctica, only a moratorium on all territorial claims over the continent enabled the designation of the territory as a common space dedicated to peace and science.65 The difference between a continent surrounded by ocean – Antarctica – and an ocean surrounded by continents – Arctic – is apparent. With the exception of some small islands (e.g. Hans Island),66 territorial claims in the Arctic are settled.

60 Ilulissat Declaration (note 43), 382. According to the position of the US, “[t]he geopolitical circumstances of the Arctic region differ sufficiently from those of the Antarctic region such that an ‘Arctic Treaty’ of broad scope – along the lines of the Antarctic Treaty – is not appropriate or necessary,” cf. National Security Presidential Directive 66/Homeland Security Presidential Directive 25, 9 January 2009, reprinted in: ILM 48 (2009), 374, 376. 61 Thomas Blunden, The Legal Status of the Arctic under Contemporary International Law: an Antarctic Regime or Poles apart?, Journal of International Maritime Law 15 (2009), 249, 261 et seq. 62 On the need to apply international environmental law to the particularly vulnerable Arctic environment see Timo Koivurova, The Importance of International Environmental Law in the Arctic, Finnish Yearbook of International Law XIV (2003), 341. 63 This does not preclude that a maritime boundary between two States may influence upon a third State as in ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), Judgment of 10 October 2002, ICJ Reports 2002, 303, 421 et seq. In the land and maritime dispute between Nicaragua and Colombia, however, Honduras claimed that its rights in the Caribbean Sea would be affected but failed to be admitted to intervene: ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment of 4 May 2011, available at: http://www.icj-cij.org/docket/files/124/16500.pdf (accessed on 6 February 2012). 64

See generally Tim Stephens, The Arctic and Antarctic Regimes and the Limits of Polar Comparativism, German Yearbook of International Law 54 (2011), 315. 65 66

On sovereignty in Antarctica see ibid.

The dispute over Hans Island has had the effect that the boundary between certain points has been left open in the Agreement between the Government of Canada and the Government of the Kingdom of Denmark Relating to the Delimitation of the Continental Shelf Between Greenland and Canada, 17 December 1973, ILM 13 (1974), 506. See also David H. Gray, Canada’s Unresolved Maritime Boundaries, IBRU Boundary and Security Research Bulletin 5 (1997), 61, 68 et seq.

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One can distinguish two situations when dealing with open delimitation questions in the Arctic: shelf delimitation between neighbouring States on the one hand and the fixing of the outer limits of an extended continental shelf on the other. The former is, in principle relevant for the lateral limits of coastal States’ jurisdictional rights up to 200 nautical miles, but, may potentially laterally delimit the continental shelf beyond. The defining of the outer limits of extended continental shelves is relevant for either specifying where the zone of national jurisdiction over seabed resources ends and where the regime of the Area begins, or for delimiting the boundary between continental shelves which extend from opposite coasts. In the case of the Central Arctic Ocean, delimitation of extended continental shelves may be necessary somewhere around the North Pole. In this case, the geographic situation has the effect that, if all rim States claim the theoretical maximum extension of their continental shelves beyond 200 nautical miles, only relatively small areas of Arctic seabed would remain uncovered.67 The International Seabed Authority will govern these ‘donut holes’.68 Although the distinction helps to structure the discussion, not all Arctic delineation and delimitation issues clearly fall within the categories as is shown by the following three examples. In the case of the Barents Sea, its geographic situation has meant that Norway and Russia had to decide upon the limit between the mainland coasts, but in the middle part of the area covered by the bilateral treaty between them, they had to deal with the delimitation of the continental shelf beyond 200 nautical miles between the opposite coastlines. The second example refers to the extended Norwegian continental shelf in the Arctic Ocean. Although Norway may delineate the outer limits of its continental shelf in the Arctic Ocean by unilateral act, it still has to delimit the lateral boundaries of this part of its shelf with its neighbours. The last example concerns a boundary which has originally been established as a lateral one between Russia and the US on a provisional basis. Russia aims to prolong this line 67 Ron Macnab/Paul Neto/Rob van de Poll, Cooperative Preparations for Determining the Outer Limit of the Juridical Continental Shelf in the Arctic Ocean: A Model for Regional Collaboration in Other Parts of the World?, IBRU Boundary and Security Bulletin 9 (2001), 86, 92 consider the existence of two relatively small areas of unclaimable seabed. Macnab later modified his assessment and excluded areas on ridges which extend beyond 350 nautical miles from his assumptions which would lead to four areas not subject to national jurisdiction. See Ron Macnab, The Outer Limits of the Continental Shelf in the Arctic Ocean, in: Myron H. Nordquist/John N. Moore/Tomas H. Heidar (eds.), Legal and Scientific Aspects of Continental Shelf Limits (2004), 301, 305. 68

Macnab/Neto/van de Poll (note 67), 92.

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far into the Central Arctic Ocean and to designate this as the outer limits of the Russian continental shelf extending from the long Siberian coast. As a result, due to the specific geographic situation in the Arctic, an agreed boundary between adjacent coastal States, if prolonged, is also the unilateral fixation of the outer limits of the Russian shelf, unless the opposite neighbours claim a collision with the extension of their continental shelves.

B. Continental Shelf Delimitation between Neighbouring Arctic States

Although there are boundaries between Arctic neighbours which remain subject to disagreement, some delimitation issues, including the relevant continental shelves up to 200 nautical miles from the baselines, have recently been settled bilaterally after decades of unsuccessful negotiations. New developments have led to agreements on maritime boundary delimitation between Norway and Denmark/Greenland in 200669 and between Norway and Russia in 2010.70 A review of maritime boundary delimitation in the Arctic has led scholars to conclude that in the past, meridians were a distinctive feature for delimiting Arctic waters.71 The following section groups agreements on Arctic continental shelf delimitation with regard to whether they are based upon equidistance, meridians or other considerations.

1. Equidistance One of the two more recent delimitation agreements, the treaty between Norway and Denmark/Greenland of 2006,72 is an example of the reliance on equidistance. The 69 Agreement Between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home Rule Government of Greenland on the other hand, concerning the Delimitation of the Continental Shelf and the Fisheries Zones in the Area Between Greenland and Svalbard, 20 February 2006, UNTS 2378, 21. 70 Treaty Between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, reprinted as Appendix 2 in: Tore Henriksen/Geir Ulfstein, Maritime Delimitation in the Arctic: The Barents Sea Treaty, ODIL 42 (2011), 1, 11 et seq. 71

Oude Elferink (note 32), 197.

72

See supra, note 69.

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agreement delimits the continental shelf between Greenland and Svalbard up to 200 nautical miles of the baselines (Article 1 of the 2006 Agreement between Norway and Denmark/Greenland). The parties explicitly mention in Article 1 of the 2006 Agreement between Norway and Denmark/Greenland that the determination of the boundary follows the median line. No modifications of the provisional equidistance line with regard to geographical circumstances were undertaken as there is an overall balance of the two relevant coasts of Greenland and Svalbard.73 The treaty does not cover continental shelf delimitation beyond the limit of 200 nautical miles from the baselines. Article 3 of the 2006 Agreement between Norway and Denmark/Greenland states explicitly that the delimitation is without prejudice to questions not governed by the treaty. Although, as stated in the preamble, if the parties intend to revert to continental shelf delimitation beyond 200 nautical miles, the 2006 Agreement shall not be the legal basis. As a result, the treaty does not prejudice the western limit of the Norwegian extended continental shelf in the Western Nansen Basin. Another example for an explicit reliance upon equidistance in bilateral delimitations is Article 1 of the 1997 Agreement between Denmark/Greenland and Iceland.74 The treaty is one of the three bilateral delimitation agreements relying upon the agreed tri-junction point, the so called ‘Jan Mayen triangle’, where the boundaries between Denmark/Greenland, Iceland and Norway meet. In its judgment in the Jan Mayen Case75 on maritime delimitation inter alia of the continental shelf between Denmark/Greenland and Norway in the Jan Mayen area, the ICJ has followed the corrective-equity approach to draw a provisional median line and to reconsider this boundary in the light of special circumstances in accordance with Article 6 Continental Shelf Convention. While the disparities of the coastlines led to an adjustment of the boundary towards the east, the case adds to giving a

73

Alex G. Oude Elferink, Maritime Delimitation Between Denmark/Greenland and Norway, ODIL 38 (2007), 375, 376 et seq. 74

Agreement between the Government of the Kingdom of Denmark along with the Local Government of Greenland on the one hand and the Government of the Republic of Iceland on the other hand on the Delimitation of the Continental Shelf and Fishery Zone in the Area between Greenland and Iceland, 11 November 1997, reprinted in: IJMCL 13 (1998), 613. 75

ICJ, Greenland/Jan Mayen Case (note 18).

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certain prominence to equidistance.76 This judgment has been implemented through an agreement in 1995.77 The 1973 Agreement between Canada and Denmark on the delimitation of the continental shelf78 adds to the relevance of the equidistance principle in maritime boundary delimitation. In accordance with Article 1 of the 1973 Agreement delimitation follows a median line “which has been determined and adjusted by mutual agreement.” As far as Hans Island is concerned, the 1973 Agreement between Canada and Denmark leaves the boundary open due to differences in opinion concerning territorial sovereignty.

2. Meridians as a Relevant Factor for Delimitation The boundary between the US and Russia has been agreed on by treaty in 1990.79 The treaty is only applied provisionally because it has not been ratified by the Russian Duma, and thus, it has never formally entered into force. Although the methods for delimitation are not referred to in the treaty, commentators have pointed out that at least the delimitation line in the Chukchi Sea coincides with a sector line which Russia had applied in national acts of legislation.80 While the US has tried to explain the boundary as ‘treaty-based’, relying upon the treaty concerning the ceding of Alaska to the US, Russia has never agreed to this view.81

76

Geir Ulfstein, Maritime Delimitation between Greenland and Jan Mayen Case (Denmark v. Norway), MPEPIL, para. 29, available via: www.mpepil.com (accessed on 28 February 2012). 77

Agreement between the Kingdom of Denmark and the Kingdom of Norway Concerning the Delimitation of the Continental Shelf in the Area between Jan Mayen and Greenland and Concerning the Boundary between the Fishery Zones in the Area, 18 December 1995, reprinted in: Law of the Sea Bulletin 31 (1996), 59. 78

See supra, note 66.

79

Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary (note 15). 80

Oude Elferink (note 32), 182. The national legislation which is referred to in relation to the Soviet and, later, Russian reliance upon meridian lines is the Decree of the Presidium of the Central Executive Committee of the USSR, 16 April 1926, relevant parts of which are reprinted in an English translation in Churchill (note 35), 122 et seq. with reference in footnote 99 to Manley O. Hudson, Cases on International Law (3rd ed. 1951), 220 as the source of the English translation. 81

Leung (note 11), 492 et seq.

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The 1990 Agreement between the US and Russia is designed to extend beyond 200 nautical miles, and the parties may proclaim an extended continental shelf, “as far as permitted under international law” (Article 2).82 As such, it is relevant for the current developments concerning the limits of the continental shelves beyond 200 nautical miles in the Central Arctic Ocean. This is particularly so because the Russian submission to the CLCS takes this boundary line and prolongs it across the Central Arctic Ocean considerably further than any possible US claims, as the outer limit of the Russian continental shelf. By following the meridian, this claimed outer limit of the continental shelf may be taken as another example for the relevance of the sector theory in Russian policy.

3. Other Considerations The 1981 agreement on the continental shelf boundary between Iceland and Norway concerning Jan Mayen was subject to conciliation. The Conciliation Commission found that the 1980 agreement on the Icelandic EEZ and Norwegian Fishery Zone extended Iceland’s maritime zones beyond a median line, yet, it recommended the adoption of the same line for the continental shelf delimitation.83 At the same time the Commission proposed the establishment of an area of joint hydrocarbon development.84 The Barents Sea Treaty is a recent example for an agreement fixing the continental shelf boundary in areas up to and beyond 200 nautical miles. While the treaty does not state the principles underlying the delimitation, the Joint Statement on Maritime Delimitation and Cooperation on the Barents Sea and the Arctic Ocean85 indicates an equitable solution by stating that the boundary would “divide […] the overall disputed area in two parts of approximately the same size.” Whether the final bound82

On this provision see Oude Elferink (note 32), 182.

83

Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen, Report and Recommendations to the Governments of Iceland and Norway (1981), ILM 20 (1981), 797, 825 et seq. 84 85

Ibid., 826.

Joint Statement on Maritime Delimitation and Cooperation on the Barents Sea and the Arctic Ocean, 27 April 2010, available at: www.regjeringen.no/upload/UD/Vedlegg/Folkerett/030427_ english_4.pdf (accessed on 7 February).

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ary is based upon a median line, however, is unclear. Although in statements made by Norwegian officials they have said that equidistance had been a departure which was later modified.86 In the Joint Statement by the foreign ministers of Norway and Russia, respectively, they have pointed out the “major disparities in respective coastal lines” which may have been crucial for a correction of a boundary based upon equidistance. In the end, since the boundary neither follows the median nor the sector line, both parties can argue that the result had been based upon a modification of their original views. Opinions on the location of the boundary in the Barents Sea as expressed by Norway and Russia during the decades of unsuccessful consultations have differed considerably up to the final conclusion of the 2010 treaty. Negotiations on the maritime boundary between Norway and the Soviet Union (and later with the Russian Federation) had been initiated upon a Norwegian proposal in 1967. Issues which made the negotiations particularly difficult related to the status of Svalbard and whether Norway could exercise sovereign rights over an EEZ and continental shelf around the archipelago in accordance with international law,87 as well as traditional fishing rights and different perceptions concerning the use of either the equidistance principle or the meridian lines, which were advocated by Russia in reliance upon the sector theory.88 Norway originally proposed a median line which it was open to modify with regard to geographic special circumstances.89 In accordance with the relevant case law on delimitation, special circumstances concerning geographical90 – as opposed to socioeconomic91 – considerations such as the length and shape of the relevant coastlines 86

Henriksen/Ulfstein (note 70), 6.

87

Whether restrictions imposed upon Norway by the 1920 Treaty concerning the Archipelago of Spitsbergen, 9 February 1920, LNTS 2, 7, are exhaustive or whether they also relate to the continental shelf and EEZ is subject to debate between the parties. On the issue see Arnfinn Jorgensen-Dahl, The Soviet-Norwegian Maritime Disputes in the Arctic: Law and Politics, ODIL 21 (1990), 411, 412; Geir Ulfstein, Spitsbergen/Svalbard, MPEPIL, paras. 44 et seq., available via: www.mpepil.com (accessed on 28 February 2012). 88

On the Russian view concerning reliance upon the sector theory in the Barents Sea see Robin Churchill/Geir Ulfstein, Marine Management in Disputed Areas: The Case of the Barents Sea (1992), 63 et seq. 89

Oude Elferink (note 32), 187.

90

On the predominant role of geographical circumstances see Scovazzi (note 22), para. 9.

91

Although access to fish stocks due to overwhelming dependence on fisheries has been a factor in the delimitation between Greenland and Jan Mayen (see the report by D. H. Anderson, in: Jonathan I.

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and the presence of islands are used to modify a provisional equidistant line which would otherwise not stand the test of equity.92 According to the Russian view during the negotiations, special circumstances shared equal status with the equidistance principle and were not limited to geographical considerations but included inter alia population size, ice conditions, and economic interests.93

4. Open Delimitation Issues Open questions of Arctic continental shelf delimitation include the lateral maritime boundary between Canada and Denmark/Greenland and between Canada and the US up to and potentially beyond 200 nautical miles from the baselines. In these cases, the dispute over whether and when to rely upon meridians for Arctic maritime delimitation instead of using equidistance as the at least provisional basis becomes apparent.

a) The Boundary in the Beaufort Sea In the case of the Canadian and the US disagreement over the boundary in the Beaufort Sea, their claims overlap significantly. Although in many parts of Arctic waters presumptions concerning mineral resources are difficult to verify, hydrocarbon potential is said to be identified with some certainty with regard to the disputed area in the Beaufort Sea.94 Canada relies upon the 1825 Convention between Great Britain and Russia95 to found its claims, whereas the US defines the boundary be-

Charney/Robert W. Smith (eds.), International Maritime Boundaries, vol. IV (2002), 2913, 2915) the ICJ has rejected socioeconomic considerations in the Greenland/Jan Mayen Case (note 18), 74, para. 80. In the same case, however, two judges explicitly supported the view that socioeconomic considerations should play a role in assessing special circumstances: Separate Opinion of Vice-President Oda, ibid., 89, 116, para. 98; Separate Opinion of Judge Ajibola, ibid., 280, 301. 92

Scovazzi (note 22), paras. 15 et seq.; Tanaka (note 2), 475 et seq.

93

Oude Elferink (note 32), 187 with references to literature in Norwegian and Russian language.

94

Gray (note 66), 63.

95

Convention Between Great Britain and Russia Concerning the Limits of Their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, 16 February 1825, Consolidated Treaty Series 1824–1825, vol. 75 (1969), 95, 97.

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tween Alaska and the Yukon by reference to equidistance.96 Canada’s drawing of a maritime boundary follows the 141st meridian because the 1825 Convention delimits the land territory along this line and determines its “prolongation as far as the Frozen Ocean” or in the authentic French text: “dans son prolongement jusqu’à la Mer Glaciale.”97 Whether reliance upon the sector theory is another reason for insisting on delimitation along the 141st meridian is unclear because Canada, in other delimitation disputes in the Arctic, proposes equidistance.98 Moreover, commentators have indicated, that the limits of the potential Canadian continental shelf beyond 200 nautical miles in the Beaufort Basin does not follow the meridian.99 As a result, a general proposition of delimitation along sector lines no longer adequately reflects the Canadian position. The lateral boundary is relevant for all maritime zones including delimitation concerning the continental shelf in an area beyond 200 nautical miles adjacent to the Beaufort Sea, where Canada and the US have an area of continental margin over which they can exercise authority.100

b) The Maritime Boundary between Canada and Denmark/Greenland The second open delimitation issue concerning Canada relates to the EEZ and continental shelf between Canada and Denmark/Greenland. The boundary concerning the continental shelf, west of Greenland, which was agreed upon between Canada and Denmark/Greenland, terminates in the Robeson Channel just before entering the Arctic Ocean. The northward continental shelf boundary is still open. Canada and Denmark/Greenland both promote a lateral boundary to Greenland which is

96

National Security Presidential Directive 66/Homeland Security Presidential Directive 25 (note 60), 377; Gray (note 66), 64. 97 Donald Pharand, Delimitation Problems of Canada (Second Part), in: Donald Pharand/Umberto Leanza (eds.), The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime (1993), 171, 174. 98

Ibid., 179.

99

Ted L. McDorman, Canada-United States Bilateral Ocean Law Relations in the Arctic, Sw JIL 15 (2008–2009), 283, 295. 100

Ibid.

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based on equidistance but disagree on the positioning of certain baselines.101 This is taken as another example that there is no general principle of following the sector theory in Canadian policy.102 Canada questions the establishment of straight baselines around the coast of Greenland including the ones joining Beaumont Island with other islands. The net effect of the straight baselines would result in moving the equidistance line claimed by Canada further westward, thus adding to the zones in which Denmark/Greenland exercises exclusive economic rights.

5. An ‘Arctic Approach’ to Delimitation? An assessment of delimitation agreements and of positions concerning the open issues does not allow for a general conclusion. The trend towards relying provisionally upon equidistance and to correct the result by reference to special circumstances is countered by some of the examples above, while others like the recent Barents Sea Treaty make it impossible to identify the applied principles. There are no general other criteria either which allow to draw the conclusion that there exists a particular Arctic approach to delimitation.

C. The Outer Limits of Extended Arctic Continental Shelves

Although delineation and delimitation of the outer limits of the continental shelves in the Arctic Ocean and its marginal seas include the Barents Sea, the East Greenland Sea, and parts of the northeast Atlantic north of the Arctic Circle,103 the issue which currently draws the most attention is whether and to what extent Arctic rim States can extend their continental shelves into the Central Arctic Ocean. While the eight States which have jurisdiction over land territory or waters north of the Arctic Circle are usually referred to as ‘Arctic States’ and some more have an 101

Pharand (note 97), 179.

102

Donald Pharand, Canada’s Arctic Waters in International Law (1988), 250.

103

Iceland made a partial submission to the CLCS on 29 April 2009 which covers inter alia area to the northeast of Iceland; Partial Submission to the CLCS in respect of the Ægir Basin area and Reykjanes Ridge, Executive Summary, available at: http://www.un.org/depts/los/clcs_new/submissions_files/isl27_ 09/isl2009executivesummary.pdf (accessed on 7 February 2012).

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interest in Arctic issues due to their proximity or activities in Arctic waters,104 only five States – Canada, Denmark/Greenland, Norway, Russia and the United States – have coastlines facing the north and can claim continental shelves extending towards the Central Arctic Ocean.105 Of these five “coastal States of the Arctic Ocean”106 only three – Canada, Denmark/Greenland and Russia – are likely to compete for continental shelves extending up to the North Pole. Different methods of defining the outer limits and open factual and legal questions make it difficult to estimate exactly how much of internationalised deep seabed under the authority of the ISA would remain if States make their claims. The Norwegian submission also included information on the extension of a continental shelf into the Central Arctic Ocean, the Western Nansen Basin. This area, however, is comparably small and does by no means extend as far towards the Pole as the potential claims by Russia, Denmark/Greenland and Canada. Moreover, it has already been addressed by the CLCS recommendation in 2006.107 The US continental shelf, if extended beyond 200 nautical miles, will be cut off to the west by the agreed boundary with Russia and to the east by a boundary with Canada, yet to be delimited, and, as a result, may resemble a pie-shaped wedge which ends before coming close to the Pole.108 The US with its relatively short Alaska coastline will be prevented to extend the shelf far into the Central Arctic Ocean in a way comparable to Russia and Canada due to its geographical location. The Russian extension of the continental shelf as specified in the submission to the CLCS109 may overlap with potential claims by Canada and Denmark/Greenland in 104

In addition to the eight Member States of the Arctic Council six non-Arctic States enjoy permanent observer status: France, Germany, the Netherlands, Poland, Spain and the UK. 105

Of the other Arctic States Iceland has made a submission to the CLCS in 2009. The same year Denmark has submitted information on the area north of the Faroe Islands. These submissions are irrelevant for continental shelf delineation in the Central Arctic Ocean. 106 Ilulissat Declaration (note 43), 382. Other authors include Iceland as the sixth Arctic coastal State, see Davorin Rudolf, The Russian Continental Shelf Beyond the 200-Mile Zone in the Arctic Ocean, in: Budislav Vukas/Trpimir Šošić (eds.), International Law: New Actors, New Concepts, Continuing Dilemmas (2010), 287. 107

CLCS (note 5).

108

An illustrative map with briefing notes entitled “Maritime Jurisdiction and Boundaries in the Arctic Region” has been established by the International Boundary Research Unit (IBRU), available at: http://www.dur.ac.uk/resources/ibru/arctic.pdf (accessed on 7 February). 109

Russia submitted information on the extension of the continental shelves beyond 200 nautical miles in the Arctic and the Pacific Ocean on 20 December 2001, a brief executive summary of the

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a zone close to the Pole, provided that both States attempt to rely upon a theoretical maximum claim based upon the demarcation of 100 nautical miles seaward of the 2.500 metre isobaths in accordance with Article 76 (5) UNCLOS. The CLCS has not yet played an important role in defining the outer limits of the continental shelves in the Central Arctic Ocean. As far as the Russian information with regard to the Central Arctic Ocean is concerned, the CLCS has not yet reached a substantive conclusion, but has recommended a revised submission.110 Canada and Denmark/Greenland still have time to submit information to the CLCS on the extension of their continental shelves in the Arctic. Overlaps between Russian claims with those from the opposite coasts of Canada and Denmark/Greenland have not been subject to delimitation by treaty. As far as the US is concerned the issue is even more complicated, because as a nonmember to UNCLOS, it is not under procedural obligations to submit information to the CLCS. This raises the question of according to what rules and procedure the US could delineate the outer limit of an extended continental shelf.

1. The Russian Submission Russia was the first State to have submitted relevant information to the CLCS in 2001.111 The extension of the continental shelves according to the Russian submission might extend sovereign exploitation rights to the largest part of the Arctic Ocean seafloor. As has been previously mentioned, the recommendation by the Commission in 2002 asked for a revision of the submission.112 The gathering of samples with a submersible has led to the planting of a Russian flag on the seabed well beyond the 200 nautical Russian submission, which mainly consists of coordinates and maps is available at: http://www.un.org/ depts/los/clcs_new/submissions_files/submission_rus.htm (accessed on 7 February 2012). 110 Report of the Secretary-General, Oceans and the Law of the Sea, Addendum, 8 October 2002, UN Doc. A/57/57/Add.1 (2002), para. 41. 111 Much has been written on the Russian submission, particularly after the flag-planting incident, see, for example, Mel Weber, Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Delimitation, IJMCL 24 (2009), 653; Matz-Lück (note 52); Kristin Bartenstein, Flag-Planting, International Journal 65 (2009–2010), 187. 112

Report of the Secretary-General (note 110), para. 41.

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mile zone. Although this act is without legal relevance, it has sparked reactions by several politicians in other Arctic States. With regard to the Russian claim much will depend upon the question whether the Lomonosov Ridge and the Alpha-Mendelev-Ridge are classified as natural prolongations of the landmasses, and, if so, whether they are submarine ridges or elevations. Opinions regarding this issue vary in the scientific community.113

2. The Norwegian Submission Norway submitted information to the CLCS in 2006 concerning all three Arctic areas beyond 200 nautical miles: the Barents Sea, the Norwegian Sea and the Arctic Ocean. The CLCS has issued a recommendation with regard to the Norwegian submission in 2009.114 In addition to information on the outer limits of the Norwegian continental shelf in the Barents Sea, Norway submitted data concerning the continental shelf beyond 200 nautical miles in the Arctic Ocean north of Svalbard: the Western Nansen Basin. Although Norway stated in its executive summary on its submission in 2006 that “further submissions may be made in respect of other areas,” it has not done so within the relevant time-limit applicable to it,115 and is now procedurally precluded from doing so.116 One difficult issue concerning the Norwegian submission are the differing views on the issue of whether Norway could claim a Svalbard continental shelf. From this

113

Ron Macnab/Lindsay Parson, Continental Shelf Submissions: The Record to Date, IJMCL 21 (2006), 309, 311. See also Ron Macnab, Submarine Elevations and Ridges: Wild Cards in the Poker Game of UNCLOS Article 76, ODIL 39 (2008), 223. 114

CLCS (note 5).

115

In accordance with the Decision [of the States parties] Regarding the Date of Commencement of the Ten-year Period for Making Submissions to the Commission on the Limits of the Continental Shelf Set out in Article 4 of Annex II to the United Nations Convention on the Law of the Sea, 29 May 2001, UN Doc. SPLOS/72 (2001), “it is understood that the ten-year time period referred to in article 4 of Annex II to the Convention shall be taken to have commenced on 13 May 1999” for those States for which the Convention entered into force before this date. Norway belongs to this group of parties because it ratified the Convention on 24 July 1996 and it entered into force for Norway on the same day. 116 As the submission of information to the CLCS is only a procedural obligation, the inherent rights of a State concerning its continental shelf are not waived if it does not submit information within the time-limit.

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perspective, it is decisive whether the shelf is part of mainland Norway,117 or whether the Svalbard archipelago has its own distinct continental shelf. If the shelf was appertained exclusively to Svalbard, Norwegian entitlement to the shelf’s resources would be disputed by some parties of the Svalbard Treaty of 1920. Russia, in consenting to the Commission’s examination of the Norwegian submission, emphasised its position with regard to Svalbard and stated that any recommendation would be ‘without prejudice’ to the provisions of the Spitsbergen Treaty of 1920.118 Likewise, the 2006 Agreement119 between Denmark/Greenland and Norway refers to the uncertain status of offshore rights adjacent to the Svalbard archipelago in its Article 3. The provision specifies that the treaty is ‘without prejudice’ to the views of the parties regarding jurisdiction over the sea and the seabed. This became apparent when dealing with the Barents Sea Loop Hole (Loop Hole). This area, in the central part of the Barents Sea, lies beyond the 200 nautical miles limit from Norway and Svalbard as well as from Russia.120 Norway submitted data on the Loop Hole to have the CLCS examine whether the Loop Hole was part of Norway’s and Russia’s continental shelf at all. However, if the CLCS came to the conclusion (as it did) that the continental shelves of Norway and Russia covered the Loop Hole, the examination of the CLCS had to be without prejudice to the subsequent delimitation between the two neighbours in this area. Accordingly, Russia, in its comments regarding the notification pertaining the Norwegian submission, had pointed out that “the unresolved delimitation issue in the Barents Sea is […] to be considered as a ‘maritime dispute’ for the purposes of rule 5 (a) of Annex I to the Rules of Procedure of the Commission.”121 Nevertheless, the Russian Federation consented to an examination without prejudice to a delimitation agreement.

117 This view is supported by Norway and seems consistent with geological conditions, see Ulfstein (note 87), para. 48. 118

Note verbale No. 82/n from the Permanent Mission of the Russian Federation to the United Nations (note 46). 119

See supra, note 69.

120

The area is described as part of the CLCS Summary of the Recommendations of the CLCS on the Submission Made by Norway (note 5), 5, para. 11. 121

Note verbale No. 81/n from the Permanent Mission of the Russian Federation to the United Nations (note 46).

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While there had already been references by scholars that the continental shelf in the central Barents Sea extended well beyond 200 nautical miles,122 the CLCS acknowledged the extension concerning the Loop Hole in the recommendation on Norway’s submission in 2006, where the CLCS stated that: [t]he seabed and subsoil beyond 200 M in the Loop Hole is located on the shallow geomorphic shelf of the central Barents Sea […] and it undoubtedly part of the submerged prolongation of the land masses of the two coastal States (Norway and the Russian Federation) that lie adjacent to it.123

In accordance with UNCLOS and its Rules of Procedure, the CLCS refrained from recommending any boundary of the continental shelf in this area, since the seabed of the Loop Hole belongs in its entirety to either one of the coastal States, and thus had to be subjected to bilateral delimitation. As a result the CLCS emphasised the prerequisite for Norway and Russia to delimit their maritime zones in the central Barents Sea by stating that “[o]nly a bilateral delimitation between Norway and the Russian Federation remains to be carried out to delineate the extent of each coastal State’s continental shelf in the Loop Hole.”124 This recommendation may have been one element to revive the delimitation process which successfully ended with the conclusion of the Barents Sea Treaty in 2010. The lateral boundaries of the Norwegian continental shelf beyond 200 nautical miles in the Western Nansen Basin have not yet been delimited towards Canada. With regard to the Western Nansen Basin in the Central Arctic Ocean, the CLCS issued a recommendation allowing for unilateral delineation as far as the outer limits are concerned, which was based upon the information submitted by Norway but without prejudice to delimiting the eastern and western limits with neighbouring States.125 As far as the eastern limit of the Western Nansen Basin is concerned, Norway, in its submission, describes this as an area which is disputed between itself and Russia.126 122

Oude Elferink (note 32), 185.

123

CLCS (note 5), 5, para. 14.

124

Ibid., 9, para. 22.

125

Ibid., 15, para. 40.

126

Continental Shelf Submission of Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea, 27 November 2006, Executive Summary, 6, available at: http://www.un.org/ depts/los/clcs_new/submissions_files/nor06/nor_exec_sum.pdf (accessed on 7 February 2012).

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3. Potential Claims by the US The US is not a party to UNCLOS. Presidents and Secretaries of State alike have stated that it was in US interest to accede and confirmed their intention to support accession,127 but so far this has not happened. As a result, the US is not bound by Article 76 (8) UNCLOS and is not required to submit information to the CLCS to attain a recommendation. The Ilulissat Declaration by the five Arctic coastal States confirmed their commitment to the legal framework of the law of the sea,128 which – although it does not explicitly refer to UNCLOS – can be interpreted to include this convention because it constitutes the central and almost universal codification. Despite an obviously strong commitment to accept the legal context of ocean governance, political declarations by the US to generally abide by the Convention (with the exception of the regime on deep seabed mining) cannot be interpreted to imply that the US considers itself bound by the procedural obligations of Article 76 (8) UNCLOS.129 Neither does acceptance of the definitions and substantive delineation criteria of Article 76 (1)–(7) UNCLOS, as proposed by a 1987 Interagency Group on Ocean Policy and Law of the Sea, have implications for the procedure. Whether the CLCS could give a recommendation on a US claim for an extended continental shelf in the Arctic Ocean, should the US decide to submit the relevant information, is not altogether clear when interpreting the Convention’s main text.130 Article 76 UNCLOS in all its subparagraphs consistently refers to ‘coastal States’, not to parties. As the Rules of Procedure of the CLCS specifically define “States Parties” in Rule 1 as “States Parties to the Convention,” it must be presumed that the term ‘coastal States’ is not restricted to this group of States. In Rule 45, however, which is almost identical with Article 4 of Annex I to UNCLOS, it states that when a “coastal State intends to establish the outer limits of its continental shelf […] it shall submit particulars […] within ten years of the entry into force of the Convention for that 127 Reasons why accession would promote US interests are stated in the National Security Presidential Directive 66/Homeland Security Presidential Directive 25 (note 60), 376. 128

Ilulissat Declaration (note 43), 382.

129

Golitsyn (note 4), 404.

130

The question of interpretation of ‘coastal State’ in the context of submissions to the CLCS by non-parties was submitted to the Meeting of States Parties in 1998 but the request for an opinion of the Legal Counsel was deferred to when such a situation actually arises, Report of the Eighth Meeting of States Parties, 4 June 1998, UN Doc. SPLOS/31 (1998), paras. 51–52.

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State.” The reference to a time-limit for submission based upon the entry into force of the Convention indicates a restriction to parties despite the use of the term ‘coastal States’ as opposed to ‘States parties’. The US political position indicates that being a non-party to UNCLOS is detrimental to US interests in the region because international recognition and legal certainty are best achieved through the CLCS procedure.131 Lack of access to the CLCS procedure leaves the US only able to rely on unilateral delineation which does not benefit from the “legitimising effect,”132 or seen as “final and binding” under Article 76 (8) UNCLOS. As a consequence, delineation is burdened with uncertainty in relation to whether other States accept or challenge the boundary. If on the other hand, the US strives to establish the outer limits of the continental shelf in the Arctic “to the fullest extent permitted under international law,”133 not being a member to UNCLOS may, in theory, prove to be beneficial.134 From the international law perspective, the US may not be bound by the limitations imposed upon the extension by Article 76 (5)–(6) UNCLOS because they cannot generally be considered to be part of customary international law.135 Commentators have stated that the delimitation of the continental shelf was one of the most disputed issues during the Third Conference on the Law of the Sea and that Article 76 (4)–(8) UNCLOS may be said not to reflect an agreement on substance but merely on procedure.136 As far as US policy is concerned, the limitations of the said articles shall nevertheless apply to US continental shelf delimitation. In 1987, an Interagency Group on 131

National Security Presidential Directive 66/Homeland Security Presidential Directive 25 (note 60), 377. 132 Rüdiger Wolfrum, The Delimitation of the Outer Continental Shelf: Procedural Considerations, in: Robert Badinter/Jean-Pierre Cot (eds.), Liber Amicorum Jean-Pierre Cot – Le procès internationale (2009), 349, 351. 133

National Security Presidential Directive 66/Homeland Security Presidential Directive 25 (note 60), 377. 134

On further arguments against accession see Jason W. Howard, Don’t Be Left out in the Cold: An Argument for Advancing American Interest in the Arctic outside the Ambits of the United Nations Convention on the Law of the Sea, Georgia Law Review 42 (2007–2008), 833, 854. 135

Golitsyn (note 4), 405. According to Oude Elferink the status of Art. 76 UNCLOS as customary law is “not completely clear,” cf. Oude Elferink (note 11), 142. The US, however, have adopted the position that Art. 76 reflects customary international law, cf. J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (1994), 124. It is unclear, however, whether the US view is shared by a sufficient number of States. 136

Wolfrum (note 132), 350.

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Ocean Policy and Law of the Sea has stated that Article 76 UNCLOS reflects the proper definition and means of delineation.137 As a result, and as part of US policy, the principles enshrined in Article 76 (1)–(7) UNCLOS are accepted and will guide delineation of the outer limits of the continental shelf. This limits the possibility to extend the shelf further than permitted by the Convention but enhances the probability that other States accept delineation, although the US application and interpretation of Article 76 UNCLOS can be challenged. Yet, as a non-party, the US has no means to refer the interpretation of Article 76 UNCLOS to the ITLOS if parties to UNCLOS refuse to accept delineation. In any case, the US status as a non-party to UNCLOS does not prevent it from claiming a continental shelf which extends beyond 200 nautical miles because of its inherent rights over the submarine prolongation of the land up to the continental margin. Non-parties may fix the outer limits of their continental shelf beyond 200 nautical miles in accordance with customary international law. As there is hardly any State practice, other than the few delineations following the CLCS recommendations, it is uncertain if there are criteria to define or measure the extent of the continental shelf beyond 200 nautical miles which have such status. It shall be noted that the US is a member to the Geneva Convention on the Continental Shelf. However, the criteria for extending a State’s continental shelf beyond the 200 metres water depth limit are far from clear because Article 1 of the Convention only vaguely refers to the exploitability. A US claim in the Central Arctic Ocean, if it overlapped with the Canadian or Danish/Greenlandic claims would not be legally irrelevant. Article 83 UNCLOS, which refers to the agreement to delimit the boundary of continental shelves by States with adjacent or opposite coasts, reflects customary international law. The CLCS must refrain from recommendations concerning areas under dispute between States with adjacent or opposite coasts in accordance with Article 76 (10) UNCLOS and paragraphs 1 and 5 of Annex I to the Rules of Procedure of the CLCS. Again, the text of Article 76 (10) UNCLOS does not restrict the clause to parties. Likewise, Annex I to the Rules of Procedure of the CLCS refers to ‘coastal States’ throughout its text. It follows that no distinction can be made according to the status of the States involved 137

Cf. Interagency Group on Ocean Policy and Law of the Sea, United States Policy Governing the Continental Shelf of the United States of America, 17 November 1987, reprinted in: Roach/Smith (note 135), 125.

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as being parties or non-parties to UNCLOS. If the US reacted to UNCLOS Member States’ submissions to the CLCS by specifying that it was a State with an adjacent or opposite coast and its rights to extend its continental shelf would collide with the submission in a disputed area, the CLCS cannot give a recommendation unless the US has consented to the examination without prejudice to a subsequent delimitation agreement. Furthermore, the notification of all UN Member States of submissions to the CLCS safeguards States’ rights to inform the Commission of maritime disputes in order to prevent CLCS recommendations. In contrast thereto, the effect of the delineation of the outer continental shelf as being final and binding, if Article 78 (8) UNCLOS is complied with, can have effect only with regard to other Member States. Hence, the Russian shelf delineation which followed a recommendation by the CLCS would not be ‘final and binding’ for the US. An obligation imposed on third States to accept the delineation, when parties’ procedural obligations are complied with, is prevented due to the pacta tertiis rule (Article 34 VCLT).138 As a consequence, even if a recommendation was given and a national act on delineation is based upon it with the effect as being final and binding between the parties, the US as a non-party would not be prevented from challenging the delineation based upon the CLCS decision in arbitration or before the ICJ.

IV. The Future Future solutions for fixing the boundaries of the continental shelves of Arctic rim States have to depend upon agreements between the relevant States. The recommendations of the CLCS might play an important role. Although the CLCS cannot give recommendations for disputed areas, its assessment of ridges in the Central Arctic Ocean is crucial. The question whether the features upon which parts of the Russian claim are based are submarine or oceanic ridges, and to which continental shelf they belong is also relevant for Denmark and Canada in their potential future submissions to the CLCS. If the area in the Central Arctic Ocean turns out to be a disputed area because of overlapping claims of Canada, Denmark/Greenland and Russia, the relevant question 138

Vienna Convention on the Law of Treaties, 13 May 1969, UNTS 1155, 331.

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is not that an agreement must be reached but according to what principles of international law the outer continental shelf is to be delimited. While the equidistance principle, as in continental shelf delimitation up to 200 nautical miles, is one viable basis, it is open to question as to whether a provisional median line should be measured from the baselines or from the foot of the continental slope.139 An examination of State practice of continental shelf delimitation beyond 200 nautical miles shows that, although some States rely upon equidistance, it is difficult to extrapolate any specific rules.140 In essence, however, there are no indications that conflicts will arise. Recent developments enhance trust in an orderly settlement of delimitation questions within a broad and flexible legal framework.

139

Oude Elferink (note 32), 196.

140

Tanaka (note 2), 469.

International Regulation of Fisheries Management in Arctic Waters RICHARD BARNES(

ABSTRACT: Climate change has opened up the possibility of new fisheries in Arctic waters. There are governance gaps in existing international and regional instruments as they apply to Arctic waters. Existing regimes might be adapted or a new Arctic RFMO created to manage new Arctic fisheries. Whichever approach is favoured by States it will need to address the same general issues facing current fisheries management, such as excess fishing capacity and IUU fishing. It will also need to accommodate the particularly nature of Arctic ecosystems and special interests afforded to indigenous peoples, as well as other activities such as shipping, tourism and mineral exploitation. Any new regime must be capable of adapting to continued change and take a strong precautionary approach. KEYWORDS: Arctic, ecosystems approach, fisheries regulation, indigenous peoples, law of the sea, regional fisheries management

I. Introduction The legal regime for the management of Arctic fisheries is a matter of considerable importance. For example, the United States Joint Resolution was passed into law requiring the US to “initiate international discussions and take necessary steps with other Arctic nations to negotiate an agreement or agreements for managing migratory, transboundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organization or organizations for the region.”1 The EU has also placed it high on its political agenda, designating it as an

( 1

Professor of Law, The University of Hull.

Senate Joint Resolution No. 17 of 2007, 122 STAT. 1569, available at: http://www.gpo.gov/ fdsys/pkg/PLAW-110publ243/pdf/PLAW-110publ243.pdf (accessed on 4 January 2012).

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area of importance for research and policy development.2 Climate change has become of particular concern. Arctic air temperatures have increased twice as much as the global average.3 The period between 2005 and 2010 is the warmest recorded.4 As a result the cover of sea ice, snow and permafrost has rapidly decreased, declining faster since 2000 than it did in the previous decade.5 Within this century, the Arctic Ocean is predicted to become mostly ice free during summer months.6 There is evidence that the decline of the cryosphere has generated feedback that is accelerating global warming.7 The rapid and cumulative changes have increased uncertainty as to the future consequences of climate change in the Arctic, although it is already clear that the changes will impact significantly upon habitats, with severe consequences for some species, such as polar bear, seals, walrus and narwhale. The implications for fish stocks remain difficult to predict in light of potential changes to water temperature and salinity and complex systems interactions.8 What does seem likely is that some species will move to colder Northern waters as waters warm, and as stock patterns and distributions change this may generate new economic opportunities. As Arctic ice-covered waters recede, this opens up the possibility for new fisheries, which in turn raises questions about rights of access, environmental impacts of fishing, and coordination of fishing with other activities in the region, such as shipping and mineral exploitation. These questions have only recently begun to receive attention from experts in international fisheries law.9 Such issues will be considered 2

COM(2008)763 final, 20 November 2008; European Parliament resolution of 9 October 2008 on Arctic governance, OJ 2010 C 9E, 41. 3

See Arctic Monitoring and Assessment Programme (AMAP), Snow, Water, Ice and Permafrost in the Arctic Assessment. Executive Summary (2011), available at: http://amap.no/swipa/SWIPA2011 ExecutiveSummaryV2.pdf (accessed on 4 January 2012). 4

Ibid., 4.

5

Ibid., 6.

6

Muyin Wang/James E. Overland, A sea ice free summer Arctic within 30 years?, Geophysical Research Letters 36 (2009), available at: http://www.agu.org/journals/gl/gl0907/2009GL037820/2009 GL037820.pdf (accessed on 4 January 2012). 7

Ibid., 4.

8

Artic Climate Impact Assessment (ACIA), Arctic Climate Impact Assessment Scientific Report (2005), 520, available at: http://www.acia.uaf.edu/pages/scientific.html (accessed on 4 January 2012). 9

W. E. Schrank, The ACIA, Climate Change and Fisheries, Marine Policy 31 (2007), 5; Rosemary G. Rayfuse, Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction, Review of European Community and International Environmental Law 17 (2008), 3; Erik J. Molenaar/Robert Corell, Background Paper. Arctic Fisheries (2009), available at: http://arctic-transform.org/download/

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in greater detail in Parts II and III, but it should be made clear from the outset that the regulatory issues facing Arctic fisheries are much the same as for other fisheries around the world. Arctic fisheries are equally susceptible to the problems of overfishing, illegal, unreported and unregulated (IUU) fishing, poor enforcement and compliance. Inadequate scientific information about the Arctic fisheries and the wider marine ecosystem is probably more acute than for other regions, so addressing this will be a priority in the short-term. A high profile piece of research by Zeller and others indicates that Arctic fish catches were approximately 950,000 tonnes between 1950 and 2006;10 significantly higher than the 12,700 tonnes (based solely on Russian catch data) that was reported to the Food and Agriculture Organization of the United Nations (FAO) during this period. This might raise concerns about the state of Arctic fisheries. Although there are some indications that Arctic fisheries may be able to sustain higher catch levels in the future, the limited research and underreported levels of fishing may mean that they are more vulnerable than presently assumed. The future of regulation of Arctic fisheries demands a strong precautionary approach. In light of the changes occurring in the Arctic marine environment, there appear to be three broad options for the future management of Arctic fisheries. The first is to leave matters as they stand. This would leave areas within 200 nm exclusive economic zones (EEZs) subject to the control of Arctic coastal States and high seas areas subject to either the freedom of the high seas, or limited management by regional fisheries management organisations (RFMOs). A second option is to extend the remit of existing RFMOs to cover Arctic waters. The third is to establish a dedicated Arctic RFMO responsible for waters not already covered by existing arrangements. A fourth option would be to consider a comprehensive management regime akin to the Antarctic Treaty System. There are of course other variations on these options, such as the adoption of a fisheries moratoria or the development of non-binding guidelines and resolutions to guide fishing operations within new or existing regimes. However, these are likely to emerge as part of the general development of fisheries management, hence, do not form a distinct policy option for Arctic fisheries management.

FishBP.pdf (accessed on 4 January 2012); Timo Koivurova/Erik J. Molenaar/David L. VanderZwaag, Canada, the EU, and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions, Journal of Transnational Law and Policy 18 (2009), 247. 10

Dirk Zeller/Sean Booth/Evgeny Pakhomov/Wilf Swartz/Daniel Pauly, Arctic fisheries catches in Russia, USA, and Canada: baselines for neglected ecosystems, Polar Biology 34 (2011), 955.

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The next part of this paper provides an overview of the context for the development of future regulatory options. Part III reviews the existing regulatory regime for fisheries management in the Arctic, and evaluates the strengths and weaknesses of the key instruments. The final section provides a focused analysis of the key legal issues, including regulatory gaps and weaknesses, as well as assessing their prospects as future management options.

II. Background The future management of Arctic fisheries must take into account the nature of the Arctic area in general and Arctic fisheries in particular. It must also involve the participation of the key Arctic States. A number of regional fora already exist for developing Arctic policies and it is sensible to consider how they might contribute to the management of Arctic fisheries. This part of the paper first outlines the geographic extent of Arctic marine waters and their legal status. It then describes the key actors and their interests, including States and regional arrangements. Finally, some brief remarks are provided about the nature and extent of current fisheries within the Arctic region, which provides a point of reference for current management regimes in the next part.

A. The Arctic Marine Area

Geographically, the Arctic is usually defined as the area north of the Arctic Circle (66°32’N). The Arctic Ocean is a body of water located between North America, Europe and Asia, falling mostly within the Arctic Circle. It includes Baffin Bay, the Barents Sea, the Beaufort Sea, the Chukchi Sea, the East Siberian Sea, the Greenland Sea, Hudson Bay, the Hudson Strait, the Kara Sea, the Laptev Sea, Northwest Passage, and other tributary water bodies. Ice is the dominant feature of the ocean, with a permanent ice pack in the centre of the Arctic Ocean of around 9 million square km with variable winter pack extending a further three to 4 million square km, depending upon climatic conditions. The ice pack currently limits navigation in Arctic waters, as well as commercial fishing and mineral resource development.

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It is important to note that there is no formal legal definition of Arctic waters, although its parameters have been drawn on a functional basis. For example, the FAO’s designation of Arctic waters for Fishing Area 18 is bounded by the Behring Strait in the North Pacific and excludes most waters west of longitude 68°30 to the North American coast, including the Labrador Sea and Baffin Bay. This may be contrasted with the wider geographic area used in the Arctic Monitoring and Assessment Programme (AMAP), which extends further south in the North Pacific region to the Aleutian Islands, and in the North Atlantic to include the Faro Islands and waters south of Greenland as well as including the Hudson Bay and White Sea.11 Such boundaries may be freely drawn for the purpose of research and monitoring, but there is some sense in seeking to coordinate governance regimes for the Arctic. This would help coordinate integrated and ecosystem based approaches to environmental protection and resource management. Of course any such boundaries will depend upon which Arctic management option is favoured by States. Some maritime boundaries in the region remain disputed, although experience shows that this does not necessarily inhibit resource management.12 Beyond the 200 nm limit, Arctic waters remain high seas in which regulation is largely contingent upon control by flag States and so management of resources will require a high degree of cooperation.

B. Arctic Governance

Presently, there is no single, permanent institution responsible for managing the Arctic marine area, although several deal with aspects of Arctic governance. Foremost is the Arctic Council, which was formally established under the Ottawa Declaration of 1996.13 It is an inter-governmental forum intended to promote cooperation among the Arctic States, with the involvement of indigenous communities and inhabitants, and other interested groups.14 Its principal focus is on sustainable development and 11

See AMAP, Arctic Pollution Issues: A State of the Arctic Environment Report (1997), 10–13.

12

See for example, Norwegian and Russian management of Barents Sea fisheries, infra III. C.

13

Declaration on the Establishment of the Arctic Council of 19 September 1996, reprinted in: ILM 35 (1996), 1387. 14

Six groups representing indigenous peoples have been granted Permanent Participant status in the Council and enjoy full consultation rights concerning all negotiations and decisions of the Council. These are: Arctic Athabaskan Council (AAC), Aleut International Association (AIA), Gwich’in Council International (GGI), Inuit Circumpolar Council (ICC), Russian Arctic Indigenous Peoples of the North

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environmental protection in the Arctic. The members of the Arctic Council, the socalled Arctic States, are Canada, Denmark (acting for Greenland), Finland, Iceland, Norway, the Russian Federation, Sweden and the United States. Neither Finland nor Sweden have coastlines to the north, and Iceland is generally considered to fall beyond the scope of the Arctic Ocean, so they can be distinguished from the remaining five ‘Arctic coastal States’.15 The Ottawa Declaration does not impose binding obligations on its members, although the work of the Council has become quite formalised.16 It has not attempted to regulate fisheries in the area. Indeed, this has been positively resisted by its members. The Arctic Council has done much to develop scientific research within the Arctic, particularly in respect to pollution and climate change. More specifically it has positively adopted precautionary and ecosystem based approaches. It has also been broadly facilitative of the interests of indigenous peoples. Koivurova and VanderZwagg note that it is being hampered by uncertain funding and the absence of permanent institutional framework.17 A “study and talk mentality has prevailed” and moving from words to action remains a challenge.18 The next regional arrangement of note is the Nordic Council, an inter-parliamentary body comprised of representatives from Denmark, Finland, Iceland, Norway, Sweden, the Faroe Islands, Greenland and Aland. It works in parallel with an inter-governmental body, the Nordic Council of Ministers, comprised of executive level representatives from member States. These bodies are essentially political fora intended to harness cooperation. In 2009, the Nordic Council of Ministers adopted the Arctic Cooperation Programme 2009–2011, which provides a quite general platform for cooperation with other agencies such as the Arctic Council and EU on Arctic issues.19 Current priorities include following up on climate change impact assessment, control of pollution, (RAIPON), and the Saami Council (SC). A further group of observers, including Germany, the Netherlands, the UK, and the United Nations Environment Program (UNEP) is provided for under the Arctic Council Rules of Procedure, Annex 2, para. 1, available via: http://www.arctic-council.org/index.php/ en/about/documents/category/4-founding-documents (accessed on 4 January 2012). 15

See the Ilulissat Declaration of 28 May 2008, reprinted in: ILM 48 (2009), 372.

16

Evan T. Bloom, Establishment of the Arctic Council, American Journal of International Law 93 (1999), 712, 718. 17

T. Koivurova/D. L. VanderZwaag, The Arctic Council at 10 Years: Retrospects and Prospects, University of British Columbia Law Review 40 (2007), 121. 18 19

Ibid., 191.

Available via: http://www.norden.org/en/publications/publikationer/2009-491 (accessed on 4 January 2012).

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increasing knowledge of indigenous peoples’ needs, preserving nature and biodiversity, increasing democratic governance, promoting economic development, scientific research, cooperation on health matters and education initiatives. The EU is the main consumer of Arctic resources. It has assumed exclusive competence for conserving and managing marine biological resources under the common fisheries policy, meaning that it has a role to play both indirectly through Member States and directly through its participation in RFMOs. It is also engaged in other fora, including the Barents Euro-Arctic Council and Northern Dimension initiative. Like the above Arctic States, it is developing a distinct Arctic policy.20 As such it will have an important role to play in the development of future Arctic management regimes. Although Arctic States collaborate through the Arctic Council and other regional fora, they also pursue discreet national policy agendas. There are also a number of bilateral relations between these States.21 Most Arctic State policies are broadly expansionist and seek to develop economic opportunities in the region, although they do share some common concerns in respect of adapting to climate change and the need for cooperation in respect of expanding economic activities in the Arctic. Canada has adopted its ‘Northern Strategy’ in 2009.22 In this, Canada seeks to consolidate its sovereignty over Arctic territory, clarify maritime boundaries and obtain full recognition of its outer continental shelf.23 Canada is already committed to improving its infrastructure to take advantage of the potential new fisheries. Denmark adopted its ‘Strategy for the Arctic’ in 2011.24 Its strategy is based upon adapting to the consequences of climate change in the Arctic region, and the likely expansion of Arctic activities. It is particularly focused on meeting the needs of inhabitants of the regions and respecting 20 European Parliament Resolution of 20 January 2011 on a sustainable EU policy for the High North, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7TA-2011-0024+0+DOC+XML+V0//EN (accessed on 4 January 2012). 21 See for example, the Agreement concerning Faroese fishing off the Canadian coast, 3 June 1980, Canada-Denmark, UNTS 1469, 159; Agreement concerning mutual fishery relations, 9 June 1992, Denmark-Norway, UNTS 1829, 224; Agreement Between the Government of Iceland, the Government of Norway and the Government of the Russia Federation Concerning Certain Aspects of Cooperation in the Area of Fisheries, 15 May 1999, reprinted in: Law of the Sea Bulletin 41 (1999), 53. 22

Available at: http://www.northernstrategy.gc.ca/cns/cns.pdf (accessed on 4 January 2012).

23

Government of Canada, Statement on Canada’s Arctic Foreign Policy (2010), available at: http://www.international.gc.ca/polar-polaire/assets/pdfs/CAFP_booklet-PECA_livret-eng.pdf (accessed on 4 January 2012). 24

Available in English at: http://um.dk/en/~/media/UM/English-site/Documents/Politics-anddiplomacy/Arktis_Rapport_UK_210x270_Final_Web.ashx (accessed on 4 January 2012).

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the peoples’ rights to use and develop Arctic resources. There is a strong emphasis on fisheries, which is unsurprising given their economic importance, particularly to the economies of Greenland and the Faroe Islands. The strategy embraces an ecosystem approach, and raises concerns about effective management and control of fishing in new fisheries not covered by existing management regimes. Of particular concern to Denmark is the need to develop institutional capacity to manage fisheries, and especially the ability of small communities to manage large ecosystems and supply the necessary expertise to manage fisheries. Norway adopted its ‘High North’ policy in 2006. This was supplemented in 2009 with the “New Building Blocks in the North.”25 The latter specifically targets the development of aquaculture, addressing IUU fishing, and marine bio-prospecting.26 Russia adopted its Arctic policy in 2008: “The Foundations of the Russian Federation’s State Policy in the Arctic until 2020 and Beyond.”27 This explicitly seeks to expand resource opportunities in the Arctic zone of the Russian Federation, as well as enhancing fisheries infrastructure and improving control over fishing activities. The United States announced its current Arctic policy in 2009.28 The policy explicitly refers to adapting to changing ranges and distribution of species and ecosystem-based management. Interestingly, it considers enhancing Arctic governance, including a review of the structure of the Arctic Council and accession to the United Nations Convention on the Law of the Sea 1982 (UNCLOS).29 Since most policies are relatively new, it will take some time to see how specific regulatory agendas develop. The priority afforded to fisheries appears to vary somewhat between States, although there is a strong commitment to cooperation and recognition of the need to adapt to changing stock patterns. The Arctic States appear receptive to reforming existing Arctic institutions, although the specifics of this in the context of fisheries remain to be determined. It is clear that fisheries are only one strand of broad ranging policies and it is unlikely that fisheries management will 25

Available in English at: http://www.regjeringen.no/upload/UD/Vedlegg/Nordomr%C3%A5 dene/new_building_blocks_in_the_north.pdf (accessed on 4 January 2012). 26

Ibid., 19–21.

27

Available in Russian at: http://www.rg.ru/2009/03/30/arktika-osnovy-dok.html (accessed on 4 January 2012). 28

US Directive on Arctic Policy, NSPD-66 / HSPD-25 of 9 January 2009, reprinted in: ILM 48 (2009), 374. 29

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3, reprinted in: ILM 31 (1982), 1261 (UNCLOS).

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develop in isolation from other concerns about maritime boundary delimitation, navigation, mineral resource exploitation and environmental protection. This brief review indicates that various States and agencies already occupy a role in managing Arctic issues. The EU’s Arctic ambitions may present some political difficulties for Denmark, Finland and Sweden who are EU Member States and members of the Arctic Council, and to a lesser extent for Iceland and Norway (non-EU members), both of whom retain close political ties to the EU. Despite recognition of the need for cooperation in the management of Arctic spaces and resources, the present situation is marked by the absence of any single institution capable of adopting binding legal rules. The present collective management process is structurally weak and decisionmaking remains highly decentralised. The informal nature of collective mechanisms has been conducive to the development of a positive, pro-active agenda of environmental protection. It is also flexible, accommodates a wide range of interests and pluralistic. However, there is scope to improve the coordination of activities in the region and achieve economies of scale as regard research and management. This will become increasingly important as human expansion into Arctic areas continues and exploitation activities increase in both scale and magnitude.

C. Arctic Fisheries

Fisheries in Arctic waters to the north of the Atlantic Ocean are more developed than Arctic waters to the north of the Pacific. Indeed, there are no significant commercial fisheries north of the Behring Strait, and only limited subsistence or artisanal fisheries, which tend to be close to shore. As the Arctic environment changes, existing fisheries management mechanisms will have to adapt to the changing distribution of stocks. Changes in the distribution of stocks are likely to occur slowly over the next few decades, allowing for the adaption of fisheries management and avoidance of significant socio-economic upheaval. It is expected that moderate warming may actually improve the conditions for many important commercial species such as Atlantic cod, herring, and walleye pollock, because reduced sea-ice cover may enhance levels of primary and secondary production, and improve stock recruitment.

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The following review of fisheries is broken into the four geographic areas that were subject to detailed scientific review in the Arctic Climate Impact Assessment (ACIA).30 In the Northeast Atlantic, Norwegian Sea and Barents Sea, the total fisheries amounted to 2.1 million tonnes in 2001.31 The main fisheries include Arctic cod, capelin, Greenland halibut, northern shrimp, herring, and northeast Atlantic cod. Some commercial fishing for minke whales, hooded seals and harp seals also takes place. Fishing is predominantly governed by Norway and Russia, with the North East Atlantic Fisheries Commission (NEAFC) managing high seas areas of the North East Atlantic. Waters in this area of the Arctic Ocean tend to be warmer due to the North Atlantic Current, thus, quite productive. Heavy overfishing of major stocks of cod and herring has reduced their potential yield considerably. In the short term, changes to stock patterns are not expected to be significant so long as current fishing does not further impair stock recruitment. However, there is growing uncertainty about stock conditions in the future.32 The ACIA report indicates that a “precautionary approach, as well as the emergence of ecosystem-based management, may enhance the resilience of the stocks.”33 In the central North Atlantic, including Icelandic and Greenland waters, the main fisheries include Atlantic cod, capelin, Greenland halibut, northern shrimp, herring, and more recently blue whiting. This area provides some important lessons about adapting to changing climatic conditions.34 Following a period of warming in the 1920s, cod stocks have moved northwards, and herring expanded their spawning grounds from the south of Iceland to its northern waters. Southerly species such as mackerel and tuna also entered Icelandic waters following periods of warming. Conversely, a cooling of ocean temperatures in the 1960s caused cod spawning to cease completely in Greenlandic waters, and result in the disappearance of the Norwegian spring herring from areas north of Iceland. Although some negative changes may be attributed to overfishing, it seems that an inability to adapt fishing patterns to changing natural conditions was a major contributor to collapse of certain fisheries. 30

ACIA (note 8).

31

Ibid., 695.

32

Ibid., 700.

33

Ibid., 707.

34

Ibid., 716–719.

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Fisheries in the northwest Atlantic region are primarily regulated by coastal States (Canada and Greenland) and the Northwest Atlantic Fisheries Organization (NAFO). The major fisheries include Atlantic cod in the Newfoundland and Labrador seas, Greenland halibut off West Greenland and eastern Canada, capelin, herring, Arctic cod, northern shrimp and snow crab. The most important factor in the deteriorating health of fish stocks has been overfishing, with a severe decline of cod and other demersal species during the 1980s and 1990s. Similar climatic variations to central north Atlantic waters have been experienced, and although this may have impacted on stock recovery of cod, the precise effects of this have not been quantified. In contrast capelin, crab and shrimp fisheries have displayed much higher robustness to exploitation.35 A warmer climate is likely to favour cod and capelin, with a decline in shrimp and crab fisheries. This indicates that more detailed research will be required to assess the impacts of climate change in different species and across the whole ecosystem. Fisheries in the north Pacific are relatively new, having developed mostly in the latter part of the twentieth century. During the 1970s, it is estimated that a quarter of the total global yield of fish came from the Bering Sea.36 Prior to the extension of coastal State jurisdiction to 200 nm and the adoption of multilateral agreements, most fisheries were subject to a range of bilateral agreements or left unregulated under the freedom of the high seas. Most such agreements have been driven by Russia and the United States. The major fisheries are Greenland halibut, shrimp, crab, walleye pollack, Pacific cod, and salmon, with a more limited flatfish fishery. Of these pollack is the most abundant species. Although capelin and polar cod are found in these waters they are not commercially exploited. There is a long history of sealing in the region. Whale fishing developed in mid-twentieth century but is now subsistence fishing. Cyclical climatic shifts have been recorded in the region, with periods of warming favouring the recruitment and productivity of cod, skate, flatfish and salmonids and corresponding declines in shrimp and crab. This data has been used to predict future scenarios for current trajectories of warmer Arctic waters, with potentially increased productivity. However, although short term changes to climatic change are reasonably well-understood, there are no longer term plans to deal with the potential effects of sustained warming or drops in temperature. The most significant change to fisheries in the region has been the extension of coastal State jurisdiction and the decline of 35

Ibid., 745.

36

Ibid., 746.

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distant water fishing. This has made fisheries regulation more certain and easier to enforce. This overview indicates that the ability of existing and new management regimes to adapt to changes in stock patterns will be crucial in preventing stock collapses. Moderate warming is likely to favour the recruitment and productivity of key commercial species, although this will be offset by declines in cold water favouring species, such as crab and northern prawn. Although there is some indication of how climate change will affect general stock conditions, these tend to be assumptions based upon past record of apparent interactions. Also, most such changes have occurred at the same time as significant expansions in commercial fishing, so must be interpreted carefully. Current models are not sufficiently well-developed and there appears to be little assessment of cumulative impacts and long term changes. Whatever management regimes are developed for these fisheries, their primary focus must be to develop a sound scientific basis for stock management. The next major focus will be how best to adapt to changes in migration patterns and the allocation of and control over harvesting activities.37 As the ACIA concludes, the “total effect of climate change on fish stocks is probably going to be of less importance than the effects of fisheries policies and their enforcement.”38 We should countenance lost fishing opportunities as well as potential new fisheries since experience shows both are possibilities.

III. Legal Framework This section outlines the existing framework for regulating fisheries management in Arctic waters.39 It provides an overview of current strengths and weaknesses and identifies potential gaps in the law. The review is divided into three parts dealing respectively with global, regional and bilateral instruments.

37

See International Council for the Exploration of the Sea (ICES), Cooperative Research Report No. 301, May 2010, available at: http://ices.dk/pubs/crr/crr301/CRR%20301-Web-100531.pdf (accessed on 4 January 2012). 38

Ibid., 770.

39

This paper does not consider the regulation of marine mammals.

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A. Global Instruments

Arctic waters, regardless of its precise boundaries, are subject to general international fisheries law. These instruments have been reviewed in considerable detail elsewhere, thus, only key features and issues relevant to Arctic waters are considered here.40

1. The United Nations Convention on the Law of the Sea The UNCLOS establishes the basic framework for the regulation of fisheries, both within coastal waters and on the high seas. All Arctic States apart from the United States are parties to the convention, although for the purposes of fisheries management this probably matters little as the relevant rules are also part of customary international law. The most important rules for fisheries management pertain to the 200 nm EEZ. Here coastal States enjoy sovereign rights for the purposes of exploring, exploiting, conserving and managing living and non-living resources.41 Such rights are balanced by a number of conservation and management requirements, and they should be exercised with due regard to the rights and duties of other States, and in a manner compatible with other provisions of the UNCLOS.42 Coastal States determine the total allowable catch (TAC) of the living resources and shall ensure through proper conservation and management measures that “the maintenance of the living resources […] is not endangered by over-exploitation.”43 This should be done taking into account the best scientific evidence available and, as appropriate, cooperation with any 40

See generally Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989); Edward L. Miles, Management of World Fisheries: Implications of Extended Coastal State Jurisdiction (1989); William T. Burke, The New International Law of Fisheries: UNCLOS and Beyond (1994); Francisco Orrego Vicuña, The Changing International Law of High Seas Fisheries (1999); Richard Barnes, The LOSC: An Effective Framework for Domestic Fisheries Conservation?, in: D. Freestone/R. Barnes/D. Ong (eds.), The Law of the Sea. Progress and Prospects (2006), 233; Kristina M. Gjerde, High Seas Fisheries Management under the LOSC, in: David Freestone/Richard Barnes/ David Ong (eds.), Law of the Sea. Progress and Prospects (2006), 281; Richard Barnes, Entitlement to Marine Living Resources in Areas Beyond National Jurisdiction, in: Alex G. Oude Elferink/Erik J. Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010), 81. 41

Art. 56 (1)(a) UNCLOS.

42

Art. 56 (2) UNCLOS.

43

Art. 61 (2) UNCLOS.

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competent regional, sub-regional or global organization. Scientific data concerning the conservation of fish stocks should be shared with competent organizations and any concerned State(s).44 Management measures shall be designed to maintain or restore fisheries at levels which can produce the ‘maximum sustainable yield’ (MSY), as qualified by relevant environmental and economic factors.45 Any management measures should take account of associated or dependent species affected by harvesting activities.46 Article 62 (1) UNCLOS requires the coastal State to promote the objective of the optimum utilization of the living resources within its EEZ. This may influence the coastal State to increase its fishing capacity too much, because if the coastal State fishing cannot exhaust the TAC, then other States should be given access to the surplus. A range of fisheries are subject to specific rules that reflect their natural attributes. For example, fishing for anadromous species, like salmon, is prohibited beyond the EEZ, except where this would result in economic dislocation to States other than the State of origin.47 In general, States should cooperate in the management of stocks that straddle boundaries between States, and between States and the high seas.48 The high seas, which include the Arctic Ocean beyond the limits of the coastal States EEZs, are open to all States and subject to the freedom of the high seas, which includes the freedom of fishing.49 This is subject only to States treaty obligations, the interests of other States (straddling and highly migratory stocks are specifically mentioned here), and some general conservation and management duties as set out in Articles 117–120 UNCLOS. These provisions broadly mirror the requirements for fisheries management in coastal waters, subject to the important caveat that they can only be secured through agreement between States, and cannot be imposed against third States without their consent. The conservation requirements of the UNCLOS have been subject to considerable criticisms.50 The general and flexible quality of conservation requirements has allowed 44

Art. 61 (5) UNCLOS.

45

Art. 61 (3) UNCLOS.

46

Art. 61 (4) UNCLOS.

47

Art. 66 UNCLOS.

48

Arts. 63 and 64 UNCLOS.

49

Art. 87 UNCLOS.

50

See Barnes, The LOSC: An Effective Framework for Domestic Fisheries Conservation? (note 40); Donna Christie, The Conservation and Management of Stocks Located Solely within the Exclusive Economic Zone, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 395.

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catch levels to be set too high and destructive fishing patterns to continue. Despite the UNCLOS approach to conservation being outpaced by developments in our understanding of the complex interactions between components of the marine ecosystem and the potentially adverse impacts of commercial fishing, it remains the benchmark for fisheries management. Under the convention, input controls (such as gear restrictions and fishing seasons) are the preferred instruments of choice in most States, despite these having failed to reduce excess fishing capacity and may contribute to a destructive race to catch fish. Some States, such as New Zealand, have implemented more sophisticated quota mechanisms that control how much fish can be taken rather than effort put into catching fish.51 These have provoked wider interest in the use of such management tools, although they are currently limited to domestic fisheries due to the weak institutional structure in RFMOs.52 The convention is difficult to amend, and there are no explicit references or mandates for the adoption of subsequent agreements on resource management. Although there is nothing to preclude this being done within the framework of the UNCLOS, and would depend on sufficient political will. This seems to be lacking. As such, it has proved difficult to adopt anything more than non-binding codes of conduct and guidelines on domestic fisheries. In general domestic fisheries are subject to little international supervision. Therefore, although coastal States may potentially adopt strong fisheries management measures in Arctic waters, they will be largely beyond effective international supervision. In the short term, most fisheries in Arctic waters will continue to be directly managed by States in their coastal waters. As such the key challenges facing Arctic fisheries will be the same as for other fisheries; although the potentially fragile nature of the Arctic marine environment suggests that there is good reason to adopt stronger precautionary and ecosystem-based approaches. In the short-term the focus should be on ensuring that domestic management regimes are at least in accordance with the requirements of the UNCLOS and best practices in international fisheries management standards developed in light of it. Although the non-participation of the United States in the UNCLOS does not significantly affect fisheries management, it does mean that the compulsory dispute settlement provisions of Part XV do not apply between the US and other States parties. This does not preclude recourse to 51

See Richard Barnes, Property Rights and Natural Resources (2009).

52

Id., Entitlement to Marine Living Resources in Areas Beyond National Jurisdiction (note 40).

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dispute settlement, but it may relax the pressure placed upon States to resort to cooperative rather than unilateral solutions. There are good indications that the United States will ratify the UNCLOS,53 and this would mark a welcome commitment to strengthening the legal framework for Arctic marine areas and collective management of areas of common interest.

2. The Fish Stocks Agreement Although described as an implementing agreement that is to be interpreted consistently with the UNCLOS, the Fish Stocks Agreement (the Agreement) is actually a stand-alone instrument.54 This means that States may become party to it without being party to the UNCLOS, as in the case of the United States. As of December 2011, the Agreement has 78 parties, including all Arctic States and most distant water fishing nations having an interest in fisheries in Arctic waters. The Agreement establishes a global framework for the conservation and management of straddling and highly migratory fish stocks. It applies to areas both within and beyond national jurisdiction, and would include potential new Arctic fisheries. However, it does not apply to discrete high seas stocks, although nothing in the agreement specifically precludes the extension of an RFMO or other arrangement to such stocks.55 The Agreement seeks to improve compliance with international fisheries law by requiring that States who authorise high seas fishing take steps to ensure that vessels flying their flag comply with applicable international fisheries regulations.56 Moreover, States shall only register fishing vessels under their flag if they are able to exercise effective control over them. Flag States should cooperate with other States to ensure compli-

53

See Executive Order 13547 of 19 July 2010. Available at: http://www.whitehouse.gov/files/ documents/2010stewardship-eo.pdf. (accessed on 23 January 2012). 54

United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, reprinted in: ILM 34 (1995), 1542. 55 See Erik J. Molenaar, Addressing Regulatory Gaps in High Seas Fisheries, International Journal of Marine and Coastal Law (IJMCL) 20 (2005), 533. 56

Art. 18 Fish Stocks Agreement.

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ance with the fisheries regulations. In certain situations, this includes boarding and investigation of vessels on the high seas.57 The Agreement sets out a number of core principles in Article 5, including: the use of the best available scientific evidence; the application of the precautionary approach, a duty to prevent adverse fishing impacts; a duty to minimise pollution, waste or discards, and by-catch;58 and a duty to promote and conduct scientific research and develop appropriate support technologies for fishery conservation and management. The precautionary principle, which is defined in Article 6 (2), is highly relevant to any potential Arctic fisheries where changing natural conditions mean that there is much uncertainty as to the extent, location and health of stocks. Article 6 provides a proactive approach to implementing this in practice, and includes the setting of reference points for sustainable fisheries that when reached should trigger ameliorative action.59 Implementation of the Agreement depends on the creation of regional or subregional fisheries management organisations or arrangements. These are to be created where they do not exist.60 This supports either the extension of existing RFMOs or arrangements to Arctic waters or the creation of a new one. Existing regimes relevant to Arctic waters are considered in more detail below, but some general remarks may be made here. In order to reinforce the effectiveness of these regimes, the Agreement makes compliance with internationally agreed upon management and conservation measures a condition for access to high seas fish stocks.61 Of course, such an obligation can only be enforced against States that are party to the Agreement. Since a number of fisheries management organisations predated the Agreement some aspects of the Agreement have not been put into practice, particularly in respect of the impact of 57

Art. 20 (6) Fish Stocks Agreement.

58

Art. 5 (f) Fish Stocks Agreement.

59

See André Tahindro, Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Ocean Development and International Law (ODIL) 28 (1997), 1, 5–6. 60 61

Art. 8 (5) Fish Stocks Agreement.

Art. 8 (4) Fish Stocks Agreement. However, it is not clear how such a provision can be enforced against non-Parties to the Fish Stocks Agreement. See Erik Franckx, Pacta Tertiis and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, FAO Legal Papers Online No. 8, available at: http://www.fao.org/legal/prsol/lpo8.pdf (accessed on 5 January 2012).

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fishing on the conservation of biodiversity.62 Arrangements predating either the Convention on Biological Diversity (CBD) or the Agreement tend to have a narrow focus on fisheries conservation and management and optimum utilisation, and do not take into account broader biodiversity considerations.63 The North East Atlantic Fisheries Commission (NEAFC), considered below, is an exception. When its constituent treaty was updated in 2006, it introduced a requirement on the Commission to take due account of the need to conserve marine biological diversity.64 This at least means that NEAFC is in line with stated policy objectives for Arctic resource management. Instruments adopted after the Agreement generally make explicit reference to the conservation of marine biodiversity and this would likely be the case for any new Arctic RFMO.65 The Fish Stocks Agreement is currently under review, and a number of measures have been advanced to improve its effectiveness, although no formal changes have been adopted.66

3. The FAO Compliance Agreement67 The FAO Compliance Agreement builds on the UNCLOS and Fish Stocks Agreement seeks to reinforce the effectiveness of conservation and management measures for high seas fisheries.68 Article III requires any vessel fishing on the high 62

See Molenaar (note 54).

63

See Art. 3 of the Agreement for the Establishment of a General Fisheries Council for the Mediterranean, 24 September 1949, UNTS 126, 237; Art. IV of the International Convention for the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63; Art. 1 of the Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts, 13 September 1973, UNTS 1090, 54. 64 See Art. II of the Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, UNTS 1329, 47. 65 See for example, Art. 2 and Part II of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, reprinted in: ILM 40 (2000), 278. 66 See Report of the resumed Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.210/2010/7, para. 53. See generally Erik J. Molenaar, Non-Participation in the Fish Stocks Agreement: Status and Reasons, IJMCL 26 (2011), 195. 67

The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 24 November 1993, UNTS 2221, 91, available at: http://www.fao.org/Legal/treaties/012t-e.htm (accessed on 5 January 2012). 68

See David Balton, The Compliance Agreement, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 31.

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seas to have been specifically authorised by the flag State. Furthermore, States must be able to exercise effective control over vessels flying their flag before they grant permission to fish, and ensure the compliance of vessels flying their flag with appropriately constituted measures, whether or not that State is party to the agreement instituting those measures. The Agreement applies to all vessels used or intended for use in fishing on the high seas, although vessels under 24 miles may be exempted unless this would undermine the object and purpose of the agreement. Further requirements include: the maintenance of a record of fishing vessels under the flag and vessels authorised to fish on the high seas,69 and the cooperation and exchange of information (in respect to vessels reported to have engaged in activities undermining the effectiveness of conservation and management measures).70 The agreement has not been widely ratified with only 40 contracting parties; this includes Canada, the EU, Norway, Sweden and the United States. Securing wider participation in the agreement would assist the management of Arctic fisheries by improving control over both vessels from Arctic coastal States and distant water fishing vessels.

4. Agreement on Port State Measures to Control IUU Fishing Given that coastal States will retain a key role in governing Arctic fisheries, the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing is likely to play a key role in the management of Arctic fisheries.71 This was approved by the FAO in 2009 with the aim of preventing illegally caught fish entering international markets through ports. Once the agreement enters into force, it requires foreign vessels to provide advance notice and request permission for port entry. Port States are required to conduct regular inspections in accordance with universal minimum standards. Offending vessels will be denied use of port or certain port services. These specific requirements are reinforced by general obligations to share information.

69

Art. IV FAO Compliance Agreement.

70

Art. V FAO Compliance Agreement.

71

Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 22 November 2009, available at: http://www.fao.org/Legal/treaties/037t-e.pdf (accessed on 5 January 2012).

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5. Non-Legally-Binding Instruments In addition to formally binding instruments, other soft law instruments play a key role in shaping fisheries management. This includes the FAO Code of Conduct for Responsible Fisheries, a range of FAO Technical Guidelines and International Plans of Action (IPOAs).72 These instruments do not deal with specific Arctic issues, but should form part of any regime for the management of Arctic fisheries. The annual Report of the Secretary General on Oceans and Law of the Sea provides an important measure and driver of regulatory developments in the law of the sea. The serious impacts of climate change have been noted in recent reports, although no specific policy directions have been advanced. Neither have Arctic fisheries management issues been the focus of recent annual General Assembly Resolutions on Sustainable fisheries. The Resolutions have concentrated focused on general priority issues including: improving implementation of existing regulatory regimes, including codes of conduct and guidelines, tackling IUU fishing, strengthening monitoring, control, surveillance, compliance and enforcement mechanisms, reducing over capacity of fishing fleets, lowering by-catch and discards, improving cooperation at regional levels, and applying ecosystem based approaches to fisheries management.73 Of course, such general recommendations are highly relevant to Arctic fisheries management.

B. Regional Instruments

Several regional fisheries management organisations are relevant to the management of Arctic fisheries, either because they overlap with or border Arctic waters.

72 See FAO, Technical Guidelines for Responsible Fisheries – No. 1. Fishing Operations (1996); FAO, Technical Guidelines for Responsible Fisheries – No. 2. Precautionary Approach to Capture Fisheries and Species Introductions (1996); FAO, Technical Guidelines for Responsible Fisheries – No. 4. Fisheries Management (1997); FAO, Technical Guidelines for Responsible Fisheries – No. 8. Indicators for Sustainable Development of Marine Capture Fisheries (1999); FAO, Technical Guidelines for Responsible Fisheries – No. 9. Implementation of the International Plan of Action to Deter, Prevent and Eliminate Illegal, Unreported and Unregulated Fishing (2002); FAO, Technical Guidelines for Responsible Fisheries – No. 10. Increasing the Contribution of Small-Scale Fisheries to Poverty Alleviation and Food Security (2010). 73

See for example, GA Res. 65/38 of 7 December 2010.

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These include the NAFO,74 the NEAFC,75 the International Commission on the Conservation of Atlantic Tunas (ICCAT),76 the North Atlantic Salmon Conservation Organization (NASCO),77 the North Pacific Anadromous Fish Commission (NPAFC),78 the Western and Central Pacific Ocean Fisheries Commission (WCPFC),79 and the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CCBSP).80

1. NAFO The NAFO Convention area includes all waters north of 35°N and west of 42°W, although its regulatory competence is limited to waters outside the jurisdiction of coastal States.81 NAFO’s objective is to “contribute through consultation and cooperation to the optimum utilization, rational management and conservation of the fishery resources.”82 In 2007, this was amended to allow for an ecosystem based approach, but this provision has not yet entered into force.83 NAFO currently has thirteen members, including the Arctic coastal States and the European Union, which acts as a single voice for its 28 Member States. The main decision-making body is the Fisheries Commission which is charged with management and conservation of 74 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 24 October 1978, UNTS 1135, 369. 75 Declaration on the Interpretation and Implementation of the Convention on the Future Multilateral Cooperation in North-East Atlantic Fisheries, available at: http://www.neafc.org/system/files/ london-declarlation_and_new_convention.pdf (accessed on 5 January 2012). 76 International Commission for the Conservation of Atlantic Tunas, Basic Texts (2007), available at: http://www.iccat.int/Documents/Commission/BasicTexts.pdf (accessed on 6 January 2012). 77 Convention for the Conservation of Salmon in the North Atlantic Ocean, 2 March 1982, UNTS 1338, 33, available at: http://www.nasco.int/convention.html (accessed on 5 January 2012). 78 Convention for the Conservation of Andramadous Stocks in the North Pacific Ocean, 11 February 1992, available via: http://www.npafc.org/new/about_convention.html (accessed on 5 January 2012). 79 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (note 64). 80

Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (with Annex), 16 June 1994, reprinted in: ILM 34 (1995), 67. 81

Article I NAFO Convention.

82

Article II NAFO Convention.

83

NAFO/GC Doc. 07/4, Art. 2, available at: http://archive.nafo.int/open/gc/2007/gcdoc07-04.pdf (accessed on 5 January 2012).

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resources. It is required to ensure consistency between coastal State and high seas measures and the interests of members that have traditionally fished in the Area.84 This builds in the pre-existing political interests of the member States. NAFO sets the total allowable catch for each fishery and divides these into quotas which are then allocated to NAFO members. It has also adopted gear restrictions, fishing seasons, closed areas and by-catch requirements. Further controls require the authorisation and monitoring of fishing vessels, catch reporting, and inspection, both at sea and in port. Such measures are adopted by a majority vote and are binding on members unless they object. If a majority of members object, then the measure shall not become binding on any members unless the members specifically agreed to be bound by the measure inter se. If a minority of members object, the measure is binding on nonobjecting members after a specified period of time has elapsed. The effectiveness of NAFO as a regulatory body has depended upon its ability to reconcile the political interests of Canada as the main coastal State and the EU, Japan and Russia as distant water fishing States. Unfortunately, in recent years this proved problematic, and NAFO has attracted considerable criticisms for its failings.85 There has been a high profile dispute between Canada and the EU.86 More recently there appears to be a growth in challenges to inspections under the domestic law.87

2. The North East Atlantic Fisheries Commission (NEAFC) NEAFC was established by the Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries of 1980, as amended. It has five contracting parties: Denmark (for Greenland), the EU, Iceland, Norway and the Russian Federation. Canada recently joined as a cooperating, non-contracting party, leaving only the United States as the key actor outside the regime. The convention covers the entire North East Atlantic, although its regulatory remit is limited to areas beyond national

84

Art. XI NAFO Convention.

85

See Robin R. Churchill, The European Community and its Role in Some Issues of International Fisheries Law, in: Ellen Hey (ed.), Developments in International Fisheries Law (1999), 533, 550–553. 86

See Christopher Joyner/Alejandro von Gustedt, The Turbot War of 1995: Lessons for the Law of the Sea, IJMCL 11 (1996), 425. 87

Rosemary G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004), 257–258.

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jurisdiction.88 It presently applies to a significant section of the Arctic Ocean. It covers all fish, molluscs, crustaceans (including sedentary species), but excludes in so far as they are dealt with by other international agreements, highly migratory species listed in Annex I of the Fish Stocks Agreement, and anadromous stocks.89 The aim of the NEAFC is to ensure long-term conservation and optimum utilization of the fishery resources within the convention area in order to provide sustainable economic, environmental and social benefits.90 The convention now includes reference to the precautionary approach, the conservation of marine biodiversity, and the use of best available scientific evidence.91 In this respect it has moved beyond the basic provisions of the UNCLOS and is consistent with the more sophisticated approach used in the Fish Stocks Agreement. The Commission has legal personality, and enjoys such legal capacity as is necessary to perform its functions.92 However, the Commission is not an autonomous body since it is comprised of representatives from its member States. The Commission has the power to make recommendations.93 These are usually adopted by a simple two-thirds majority, with each member enjoying a single vote. An objection procedure exits, which prevents a recommendation from binding the objecting State. In the exercise of its power the Commission has set total allowable catches and allocated these to contracting parties, adopted a range of technical measures, and implemented closed seasons and areas. The convention relies on flag State enforcement by contracting parties. The same applies to the imposition of sanctions for breaching regulatory measures.94 Arguably, NEAFC is one of the more successful RFMOs, at least in respect of implementing its monitoring and compliance measures. In part this is due to the political cooperation of the members, and because its regulatory area is quite small. Also many high seas fisheries also fall within the EEZ of one or more coastal States members, coastal States and this ensures a high degree of common interest in managing fisheries. The high level of political and economic development of member States 88

Art. 1 (a) NEAFC Convention.

89

Art. 1 (b) NEAFC Convention.

90

Art. 2 NEAFC Convention.

91

Art. 4 NEAFC Convention.

92

Art. 3 NEAFC Convention.

93

Art. 5 NEAFC Convention.

94

Art. 15 NEAFC Convention.

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has meant that it has been able to put in place enforcement measures. This has resulted in a fairly straightforward extension of domestic EEZ enforcement mechanisms to high seas fisheries. However, the position of non-contracting States has been problematic. To an extent these have been alleviated by the admission of Lithuania and Estonia to the EU. They have become bound by NEAFC measures and their vessels no longer engage in third party fishing outside NEAFC control. How NEAFC would adapt to an increased mandate and the full participation of Canada and the United States is yet to be seen. Koivurova and Molenaar note that NEAFC gives a strong degree of control to coastal States, and although Canada and the United States would benefit from this, they might be inclined to push for changes in light of their interests in other RFMOs.95 As fishing opportunities increase in Arctic waters, and stock distributions change, there is likely to be greater uncertainty about how States will pursue their national fisheries interests within NEAFC.

3. International Commission on the Conservation of Atlantic Tunas (ICCAT) ICCAT was established by the International Convention for the Conservation of Atlantic Tunas of 1969.96 It currently has 48 contracting parties, including all Arctic coastal States and interested distant water fishing States. ICCAT has competence over the Atlantic and adjacent seas, both within areas of national jurisdiction and on the high seas.97 In principle this would extend to waters of the Arctic Ocean, although most tuna species are only located in southern parts of the Arctic Ocean.98 To date ICCAT has not developed any specific plans for northern Arctic waters. ICCAT is not a suitable forum for general fisheries management because it only deals with tuna and tuna-like fish, although it may consider other species as by-catch to tuna fishing. The Commission 95 Timo Koivurova/Erik J. Molenaar, International Governance and the Regulation of the Marine Arctic (2010), 74–75. 96 International Convention for the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63, available at: http://www.iccat.int/Documents/Commission/BasicTexts.pdf (accessed on 6 January 2012 (CAT Convention). 97 98

Art. I CAT Convention.

Erik J. Molenaar, Climate Change and Arctic Fisheries, in: Timo Koivurova/E. Carina H. Keskitalo/ Nigel Bankes (eds.), Climate Governance in the Arctic (2009), 145, 159.

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is the principal decision making body and is comprised of delegations from member States.99 It is supported by a range of committees, panels and advisory boards, as well as a permanent secretariat based in Madrid. The Commission is responsible for studying tuna, although it is largely dependent on data and support from contracting parties and other research agencies.100 More specifically, it is responsible for collating and analysing fishery statistics, coordinating research and stock assessment, developing management advice, and making recommendations for management measures. Such recommendations are designed to maintain population at levels capable of permitting the maximum sustainable catch.101 The recommendations are binding on contracting parties within six months of the Commission notifying contracting States of the recommendation, unless a contracting State makes and maintains an objection to the recommendation according to the rather complex procedural requirements of the 1969 Agreement. The ICAAT has been subject to sometimes fierce criticisms of its track record in managing tuna fisheries. It has struggled to accommodate the interests of coastal States and distant water fishing nations.102 The 2009 Performance Review noted that although it had developed reasonable sound conservation and management policies, these needed to be brought in line with current approaches to fisheries management.103 The performance of the compliance committee was subject to reservation. Overall, the ICCAT was not meeting its objectives and management of bluefin tuna in the eastern Atlantic and Mediterranean was described as an international disgrace. Although such failings were largely attributed to the lack of compliance of contracting parties, cooperating non-contracting parties, entities or fishing entities (CPCs), there are good reasons for being cautious about the potential for ICCAT to manage any Arctic fisheries.

99

Art. III CAT Convention.

100

Art. IV CAT Convention.

101

Art. VIII CAT Convention.

102

Andrew Serdy, Post-modern Fisheries Law, or We are All Coastal States Now, International and Comparative Law Quarterly 60 (2011), 387. 103

The full report is available at: http://www.iccat.int/Documents/Other/PERFORM_%20REV_ TRI_LINGUAL.pdf (accessed on 6 January 2012).

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4. North Atlantic Salmon Conservation Organization (NASCO) NASCO has seven contracting parties, including the main Arctic coastal States. It applies to all salmon stocks that migrate beyond areas of fisheries jurisdiction of coastal States of the Atlantic Ocean north of 36°N throughout their migratory range, meaning that it overlaps spatially with NAFO and NEAFC.104 The functional nature of NASCO’s competence means that it could regulate salmon throughout much of Major Fishing Area 18. However, this would require some restructuring of NACSO’s three regional commissions, each of which could potentially be concerned with salmon in northern Arctic waters. At present, catch levels are relatively small due to the nature of the fishery, and a significant proportion of this is recreational.105 NASCO provisions tend to be more restrictive than the UNCLOS. Thus fishing for salmon beyond 12 nm is prohibited, with two exceptions – fishing out to 40 nm of Western Greenland and within the fisheries jurisdiction of the Faroes.106 The main objective of NASCO is to provide a forum for consultation and cooperation, and for the adoption of regulatory measures.107 The regional commissions and the council may propose regulatory measures to members. NASCO has been successful in managing North Atlantic salmon fisheries. However, much of this success may be down to certain particularities of the fishery, which is generally difficult to prosecute and so deters new State entrants. Also the growth in farmed salmon has decreased the economic viability of catch fisheries. There has been a willingness to make diplomatic representations and take enforcement action against illegal third State fishing.108 NASCO has also done much to coordinate and promote enforcement measures by port States, which are effective because they close off the means of landing illegal catch. These factors indicate that NASCO might successfully be adapted to accommodate new salmon fisheries in Arctic waters.

104

Art. 1 NASCO Convention.

105

For example, in 2009 the total catch was 1,300 tons. Unreported catch is estimated to be a further 327 tons. 106

Art. 2 (2) NASCO Convention.

107

Art. 3 NASCO Convention.

108

See Rayfuse (note 85), 113.

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5. The North Pacific Anadromous Fish Commission (NPAFC) The NPAFC regulatory zone includes the waters of the North Pacific Ocean and its adjacent seas, north of 33°N North Latitude beyond 200-miles zones of the coastal States.109 Canada, Japan, the Republic of Korea, Russia and the United States are parties to the agreement. Like NASCO, this suggests that it might be a suitable vehicle for salmon fisheries in Arctic waters, although this would only become a consideration if migratory patterns moved the relevant stocks further north. The convention prohibits directed fishing for anadromous fish in the convention Area.110 It seeks to minimise to the maximum extent the incidental taking of anadromous fish. It further prohibits the retention on board of a fishing vessel of anadromous fish taken as an incidental catch during fishing for non-anadromous fish. There is an exception for fishing for scientific purposes under programmes approved by the Commission. The obligations are only binding on State parties, although other States are encouraged to adopt laws and regulations consistent with measures taken under the convention.111 The Commission can make recommendations for the conservation of anadromous stocks and ecologically related species in the convention area.112 It may also review and evaluate the enforcement actions of the parties and make recommendations on additional measures to be taken to ensure the effective enforcement of the convention. An important aspect of NPAFC’s work is to coordinate the conduct of scientific research, which may extend to other ecologically related species.113 Parties are to cooperate in the collection, reporting and exchange of data, including catch levels and the Commission may specifically request the provision of data or other information from areas adjacent to the convention area. The role of the Commission is largely facilitative, so each party must take necessary measures to ensure its nationals and fishing vessels flying its flag comply with the provisions of the convention.114 The convention establishes quite strong non flag State boarding and investigation systems, although only the flag State may try offense and impose penal109 Art. I NPAFC Convention. It overlaps spatially with the International Pacific Halibut Commission (IPHC), CCBSP, and WCPFC. 110

Art. III NPAFC Convention.

111

Art. IV NPAFC Convention.

112

Art. IX NPAFC Convention.

113

Art. VII NPAFC Convention.

114

Art. III (3) NPAFC Convention.

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ties. Each State party has the right to board and inspect a vessel of another State party reasonably suspected of violating the convention.115 Such penalties should be commensurate with the serious nature of the infractions. The performance review of NPAFC in 2010 concluded that it has been successful in meeting its objectives.116 Direct and indirect high seas fishing for anadromous stocks by the parties has been virtually eliminated, and the Commission had largely succeeded in eliminating high seas drift net fishing by non-contracting parties which directly or indirectly targets anadromous species. A consequence of this is that high seas fishing has moved to target other species beyond the remit of the NPAFC. This indicates that the activities of a RFMO should not be considered in isolation. One reason for the success of the NPAFC is its narrowly drawn focus on anadromous species, and it is perhaps for this reason that the Report stresses the importance of it not overstepping its mandate in respect of other species.117

6. Western and Central Pacific Ocean Fisheries Commission (WCPFC) The aim of the WCPFC is to ensure, through effective management, the longterm conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean.118 The convention applies to “all waters of the Pacific Ocean.”119 It does not have a precisely defined and agreed northern boundary, although this seems to include the Behring Sea. A more precise delimitation of its northern boundary in the convention would have been helpful. It would require an explicit revision of the convention to extend its remit into Arctic waters beyond the Behring Sea. Of the Arctic States, only Canada, the United States and the EU are parties. Given its geographic remit, the non-participation of other Arctic States is unsurprising, although the participation of Russia would seem to be desirable in light of its present remit. 115

Art. V NPAFC Convention.

116

NPAFC, Performance Review Panel Report (2010), available via: http://www.npafc.org/new/ about_prr.html (accessed on 5 January 2012). 117

Ibid., 67.

118

Art. 2 WCPFC Convention.

119

Art. 3 WCPFC Convention.

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7. Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CCBSP) The CCBSP was the culmination of various political efforts to respond to the collapse of the pollock fishery.120 It entered into force on 8 December 1995. China, Japan, Poland, the Republic of Korea, Russia and the United States are parties. The convention applies to the high seas of the Behring Sea,121 although activities of a scientific nature in areas under domestic jurisdiction may be agreed between the parties.122 The aim of the convention is to restore and maintain stocks at levels that can sustain the MSY. Although the principal focus is on pollock, the parties can consider measures related to other living marine resources.123 The convention does not establish a permanent commission, but it supports cooperation in research activities and provides a forum for discussing measures that may become necessary. The convention aims are pursued through an Annual Conference of the Parties, where the annual allowable harvest level (AHL) and national quotas, as well as any other management measures are set.124 This includes a mandatory observer programme.125 Boarding and inspection of vessels registered by contracting parties in the convention area may be undertaken by duly authorised officials of other States parties.126 Any violation must be notified to the flag State, who is solely responsible for further compliance action, including trial and imposition of penalties.127 Since the establishment of the CCBSP, pollock stock levels have been at a level below the minimum required to trigger the setting of an AHL, and so if judged by the effectiveness of the suspension of fishing for pollock on the high seas, the regime can be regarded as a success. That said its limited remit and lack of institutional structure suggest that it can only play a limited role in the wider management of Arctic fisheries. 120 Stuart B. Kaye, Legal Approaches to Polar Fisheries Regimes: A Comparative Analysis of the Convention for the Conservation of Antarctic Marine Living Resources and the Bering Sea Doughnut Hole Convention, California Western International Law Journal 26 (1995–1996), 75. 121

Art. I CCBSP.

122

Art. X CCBSP.

123

Art. II (4) CCBSP.

124

Art. IV CCBSP.

125

Art. XI (5) CCBSP.

126

Art. XI (6) CCBSP.

127

Art. XI (7) CCBSP.

222 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 C. Bilateral Arrangements

There are a number of bilateral agreements between Arctic States that seek to coordinate fisheries management within waters under national jurisdiction in the Arctic marine area.128 Such instruments typically provide for cooperation, recognition of access rights, and authority to set catch levels and regulate fisheries within areas under exclusive jurisdiction. A number of such instruments are key to providing a basis for future cooperation on fisheries management in the Arctic marine area. Of note is the 1988 Agreement between the Government of the United States and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations. This has been periodically extended since 1988 and is currently in force until 2013.129 It provides for research cooperation, reciprocal allocation of surplus fish catch, cooperation in establishing fisheries joint ventures and cooperation to control IUU fishing on the high seas areas of the Behring Sea and North Pacific Ocean. This has focused on salmon and pollack fisheries. The Intergovernmental Consultative Committee established by the 1988 Agreement has also served as a forum for negotiating bilateral fisheries management agreement for the Northern Bering Sea. A draft Agreement between the Government of the Russian Federation and the Government of the United States on the Conservation and Management of Living Resources in the Northern Bering Sea is presently under negotiation. Norway and Russia have long collaborated in the management of fisheries in the Barents Sea.130 The fact that there has until recently been disagreement about the delimitation of their respective maritime zones has not prevented cooperation concerning fisheries management.131 The extension of exclusive coastal State authority to 200nm in the 1970s marked a move away from regional cooperation through NEAFC to bilateral management between Norway and Russia. This was formalised

128 See for example, the Agreement concerning mutual fishery relations between Greenland and the Russian Federation, 7 March 1992, UNTS 1719, 69. 129 Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations, 31 May 1988 UNTS 2191, 3. 130 Geir Hønneland, Enforcement Co-operation between Norway and Russia in the Barents Sea Fisheries, ODIL 31 (2000), 249. 131

Tore Henriksen/Geir Ulfstein, Maritime Delimitation in the Arctic: The Barents Sea Treaty, ODIL 42 (2011), 1.

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in the mid-1970s through the Joint Norwegian-Russian Fisheries Commission.132 Provided that success is measured in the adoption of fisheries regulations, then to that extent, the Joint Commission can be regarded as a success. Initially, the principal concern in this fishery was overfishing by Russian vessels. In part this has been addressed through improved reporting of landings and exchange of data and advances in cooperation on enforcement. Fish stocks appear to be in general good health, although there remains concern about IUU fishing. Measures to address this include raised awareness, multilateral action through NEAFC, and more robust port controls, have resulted in a reduction of IUU fishing, but continued efforts are still required to resolve this. When the underlying delimitation issues were resolved, this included provisions on fisheries management.133 Notably this sought to maintain existing shares of catch and to ensure the relative stability of their fishing activities.134 This indicates the importance of stable fishing opportunities, and may indicate how future fishing patterns in the wider Arctic marine areas might be negotiated. The International Pacific Halibut Commission (IPHC) was established by a series of treaties between Canada and the United States to research and manage stocks of Pacific halibut in the convention area.135 Originally, the coverage extended to the high seas off the west coasts of Canada and the United States. However, this has since been restricted to waters to the west and south of Alaska in which either party exercises exclusive fisheries jurisdiction. Therefore, it is of limited relevance to Arctic fisheries. The IPHC is responsible for establishing and recommending the TAC for the Canada-United States commercial halibut fisheries. It may also adopt other management controls including setting fishing seasons, limiting size and quantity of fish 132 The Commission was established under the Agreement on Co-operation in the Fishing Industry, 11 April 1975, Norway-Union of Soviet Socialist Republics, UNTS 983, 7.This has been supplemented by the Agreement Concerning Mutual Relations in the Field of Fisheries, 15 October 1976, NorwayUnion of Soviet Socialist Republics, UNTS 1157, 146; and the ‘Grey Zone Agreement’ of 11 January 1978, Norway-Union of Soviet Socialist Republics. 133

The Treaty between Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, available at: www. regjeringen.no/upload/ud/vedlegg/folkerett/avtale_engelsk.pdf (accessed on 5 January 2012). 134 135

Ibid., Art. 4.

Convention Between Canada and the United States for the Preservation of Halibut Fisheries of the Northern Pacific Ocean, 2 March 1923, LNTS 32, 93; Convention for the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 2 March 1953, Canada-United States of America, UST 5, 5. This was amended by the Preservation of Halibut Fishery Protocol, 29 March 1979, Canada-United States of America, UST 32, 2483.

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catch in specific areas, regulating incidental catch, licensing vessels, regulating fishing appliances and regulating data collection.136 The IPHC is considered to have had some success in achieving its aims, although in recent years it has witnessed a decline in stock levels and concern over incidental catch.137 This has required aggressive cuts in catch levels. Following the lead of other fisheries management bodies, the Commission will institute a formal review of its working process in 2012. In 1985, the United States and Canada concluded the Pacific Salmon Treaty.138 The agreement commits the parties to prevent over-fishing and provide for optimum production. It also seeks to ensure that both parties receive benefits equal to the production of salmon originating in their waters. The Commission, which comprises four appointees from each party, facilitates the management of several salmon fisheries. It receives technical information, which is analysed by a joint technical committee and distributed to one of four Panels responsible for salmon originating in specific geographic regions. These Panels formulate fishery recommendations. These are sent to the Commissioners who review the recommendations and conclude negotiations, which are then transmitted to the parties for final approval and implementation. In 2002, Canada and the United States reached an agreement on the management of salmon stocks originating in the Yukon River in Canada.139 The agreement was included as an annex of the Pacific Salmon Treaty, but is separate from the Pacific Salmon Treaty because it sets out a distinct regime for Yukon River salmon. These bilateral agreements are well-suited to dealing with localised fisheries. As they are incapable of regulating the rights and duties of third States, they will not be useful in regulating wider Arctic fisheries. However, any general regime should take these bilateral regimes into account since they can provide important information about a number of fisheries; this could improve the information base for ecosystembased fisheries management.

136

Art. III of the 1979 Protocol (note 133).

137

IPHC Press Release, Halibut Commission Completes 2011 Annual Meeting, 31 January 2011, available at: http://www.iphc.int/news-releases/159-nr20110131.html (accessed on 5 January 2012). 138

Pacific Salmon Treaty, 28 January 1985, Canada-United States of America, available at: http://www.psc.org/pubs/treaty.pdf (accessed on 5 January 2012). 139

Yukon River Salmon Agreement, 29 March 2001, Canada-United States of America, available at: http://yukonriverpanel.com/salmon/about/yukon-river-salmon-agreement/ (accessed on 5 January 2012).

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IV. Issues Any future fisheries management option must have a sound scientific basis. Until potential new fisheries are properly understood and regulated, no commercial fishing should take place. Such a moratorium is supported by the United States140 and the EU.141 Support for a moratorium by coastal States is essential since it is areas within coastal state jurisdiction that will likely become available for fishing opportunities first, as ice coverage diminishes. There is nothing to stop States individually or collectively conducting research in Arctic waters under the freedom of the high seas. Although coastal States retain jurisdiction over marine scientific research in their EEZ, they should facilitate research in accordance with Article 246 (3) UNCLOS. Already numerous research plans are underway within States and through regional bodies, so what may be more important is to coordinate research that is capable of building up a better understanding of ecosystems and their capacity to sustain fishing and other activities. This might best be achieved through formalised cooperation. Until such a time when all Arctic waters are included within an existing or new RFMO, this research could be pursued though the Arctic Council’s Working Group on Conservation of Arctic Flora and Fauna (CAFF). It involves the key actors in the region and has a broad-based mandate and integrated, ecosystem-based approach.142 Although the Arctic Council has no authority to adopt binding measures, this does not preclude facilitative measures such as research and the interim use of its scientific work groups to provide information that can be used in other fora. Between 2008 and 2011, CAFF developed an Arctic Biodiversity Marine Monitoring Plan as part of its Circumpolar Biodiversity Monitoring Programme, and its implementation began in September 2011.143 The programme acknowledges that it will coordinate its work with agencies such as the International Council for the Exploration of the Sea (ICES) 140 See Joint Resolution Directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean, para. 4, Public Law Nos. 110–243 (2008). Also, North Pacific Fishery Management Council, Fishery Management Plan for Fish Resources of the Arctic Management Area (2009), para. 2.2.2. 141

COM(2008)763 final, 20 November 2008, 7–8.

142

See Timo Koivurova/Erik J. Molenaar, International Governance and the Regulation of the Marine Arctic (2010), 51. 143

Mike G. Gill et al., Arctic Marine Biodiversity Monitoring Plan (CBMP-MARINE PLAN). CAFF Monitoring Series Report No. 3 (2011).

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and the North Atlantic Marine Mammal Commission (NAMMCO), but might also contribute to research programmes within existing fisheries management bodies, such as NEAFC. As indicated above, there are gaps in the existing governance regime where existing RFMOs lack a geographic remit. These gaps are only likely to increase as ice-covered waters decline. Experience shows that such gaps will be targeted as pressure on existing stocks force fishermen to seek new fishing opportunities, as in Bering Sea ‘donut hole’ and Barents Sea ‘loophole’.144 If the status quo is ruled out, then the choice is between adapting the remit of existing RFMOs or establishing a new RFMO or arrangement. The viability of these options is wholly contingent upon the political will of the Arctic States. Unfortunately it is not entirely clear which option is favoured. Although the Ilulissat Declaration of 2008 rejected the idea that a comprehensive legal regime was required to govern the Arctic Ocean, it was pointedly silent on the issue of living resource regulation.145 It considered that the existing mechanisms provided a sufficient legal basis for managing Arctic spaces and activities. However, given that the law of the sea necessarily functions through RFMOs then too much should not be read into this declaration. The United States appears to favour the creation of a new management organisation for the region.146 This should conform to the requirements of the Fish Stocks Agreement, and “contain mechanisms, inter alia, for establishing catch and bycatch limits, harvest allocations, observers, monitoring, data collection and reporting, enforcement, and other elements necessary for sustaining future Arctic fish stocks.”147 Similarly, the EU is in favour of developing a regulatory framework for any new fisheries that are developed in the Arctic area.148 This represents a powerful block of Arctic States and may point towards the creation of a new RFMO. Although the Arctic Council provides a useful vehicle for the facilitating interim research, it does not provide a long-term solution for the management of fisheries, at 144

See David A. Balton, The Bering Sea Doughnut Hole Convention: Regional Solution, Global Implications, in: Olav Schram Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (2001), 143. Robin R. Churchill, The Barents Sea Loophole Agreement. A ‘Coastal State’ Solution to a Straddling Stocks Problem, IJMCL 14 (1999), 467. 145

See Ilulissat Declaration (note 15).

146

Joint Resolution (note 140), para. 1.

147

Ibid., para. 2.

148

COM(2008)763 final (note 139), 7–8.

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least as presently constituted. Firstly, it cannot issue binding decisions, and this would be needed to regulate fisheries. It lacks a permanent secretariat and structural funding. Secondly, it only represents a limited group of States, and this may not correlate to States that have an interest in participating in Arctic fisheries.149 In short, the Arctic Council would need to be comprehensively reformed and restructured if it were to assume responsibility for fisheries management. There have been calls for a new cross-sectoral instrument to regulate the Arctic, with the power to adopt legally binding measures.150 A quite detailed model for a framework agreement is advanced by Koivurova and Molenaar.151 This is based upon a review of other regional pollution control instruments, such as OSPAR,152 and the Antarctic Treaty.153 It is strongly based upon the Arctic Council, but with a formalised structure and wider membership. The key principles are listed in the main instrument, but more detailed substantive matters would be developed through Annexes or Protocols. It is interesting to note that key issues, such as the precise membership criteria and spatial scope are left open, indicating the difficulty of securing agreement on such matters. It is notable that the EU application for observer status at the Arctic Council has been repeatedly vetoed, as existing members reinforce the preeminence of individual state sovereignty in the region. Also the Arctic Council has so far resisted assuming fisheries management responsibility.154 Given the potential difficulties associated with a comprehensive agreement, another option would be to create a dedicated RFMO for Arctic marine areas. Since an Arctic RFMO would have a more narrowly drawn remit, it seems likely that it would be much easier to negotiate its structure and material scope. Further, since it would be limited to marine areas, and most likely areas beyond national jurisdiction, it would avoid the issue of how to accommodate the territorial interests of Arctic 149

See Erik J. Molenaar, The Concept of ‘Real Interest’ and Other Aspects of Co-operation through Regional Fisheries Management Mechanisms, IJMCL 15 (2000), 475. 150

Donat Pharand, Draft Arctic Treaty: An Arctic Region Council, in: Keith R. Greenaway (ed.), The Arctic Environment and Canada’s International Relations. The report of a working group of the National Capital Branch of the Canadian Institute of International Affairs (1991), A1–A10; Koivurova/ Molenaar (note 142), 95. 151

Ibid.

152

Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, reprinted in: ILM 32 (1993), 1072. 153

The Antarctic Treaty, 1 December 1959, UNTS 402, 71.

154

See Molenaar (note 98), 165–166.

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coastal States. Such an instrument could be readily modelled on existing RFMOs, although the opportunity should be taken to consider how existing deficiencies could be avoided and best practices followed.155 The main question over the viability of an Arctic RFMO is whether or not the fishery resources of the Arctic beyond existing arrangements are sufficient to justify a dedicated RFMO. This will very much depend upon the extent to which new waters become accessible and fishing patterns render existing mechanisms obsolete. Further, the uncertainty over the extent of Arctic fisheries and the fact that new fisheries will only emerge through the gradual shrinkage of ice covered areas or changing migration patterns in existing fisheries; the easiest option appears to be adapting the remit of existing RFMOs. This would avoid potential duplication of research, avoid the cost and expense of potential institutional arrangements and develop the existing expertise. The most likely candidate for an extended regulatory remit is NEAFC. Most States fishing in Arctic waters are already members, and Canada is a cooperating non-contracting party. Article 19 NEAFC provides that any contracting party may propose amendments to the convention, and nothing precludes changes to its geographic remit. Koivurova and Molenaar note that whilst small adjustments would be relatively straightforward, large changes to accommodate presently unregulated Arctic waters would be more problematic.156 The key difficulty would be how to legitimate the extension of regulatory competence to non-participants in existing RFMOs. This is crucial because there appears to be a tendency to limit access to fisheries under RFMOs.157 The soft acquiescence of third States have demonstrated in this respect shows that although this process might produce a degree of welcome stability in existing regional arrangements, it does not provide a clear indication of how entitlements might be allocated in any new Arctic fisheries. A final point to consider is the position of indigenous peoples. The requirement to take account of indigenous peoples’ rights and interests is not only a matter of general international law, but one that has been embodied in existing Arctic instruments. The United Nations Declaration on the Rights of Indigenous Peoples acknowledges 155

See Michael W. Lodge et al., Recommended Best Practices for Regional Fisheries Management Organizations. Report of an independent panel to develop a model for improved governance by Regional Fisheries Management Organizations (2007). 156

Koivurova/Molenaar (note 95), 74–75.

157

Serdy (note 102), 416.

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their rights to self-determination,158 calling on States to prevent any action that “has the aim or effect of dispossessing them of their lands, territories or resources.”159 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, and States must consult with indigenous peoples before adopting measures that may affect them.160 Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.161 More specifically, they have the right to and control of the land and resources which they have traditionally owned, occupied or otherwise used or acquired.162 This includes rights of conservation and protection.163 Under EU law, the position of indigenous peoples is protected. This specifically includes peoples living in Arctic regions of Sweden and Finland.164 To some extent this is recognised in the practice of the Arctic Council, but it would need to be accommodated within any new or adapted fisheries management regime for Arctic marine areas.

V. Concluding Remarks Climate change poses many threats to the Arctic environment, but it also opens upon the possibility of new fisheries. However, current global and regional instruments do not provide a suitable basis for the regulation of such fisheries in the longer term. The key challenges are at a regional level. This means that the regulatory remit of existing fisheries management agreements will have to be expanded or a new regional agreement adopted. Each approach has its advantages and disadvantages. Existing arrangements do not have a good track record of conserving and managing 158 Art. 3 of the United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 of 13 September 2007 (UN Declaration). 159

Art. 8 UN Declaration.

160

Arts. 18 and 19 UN Declaration.

161

Art. 20 UN Declaration.

162

Art. 26 UN Declaration. See also, Art. 32 UN Declaration.

163

Art. 29 UN Declaration.

164

See Protocol 3 to the Treaty Concerning the Accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union of 24 June 1994, OJ 1994 C 241, 9.

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fisheries, and such failings should not be ‘exported’ to new Arctic fisheries. However, they have a wealth of experience, especially in respect of fisheries research. A new RFMO might provide an opportunity to learn from past experience and apply best practices afresh, but it would still have to navigate the same waters. It is not clear that it would be any better equipped to address issues of excess capacity, IUU fishing and politicised decision-making than existing RFMOs. The distribution and condition of Arctic fish stocks and fisheries will continue to change and this requires adaptive management. These are issues that need to be confronted regardless of the format of the preferred management regime.

Indigenous Land and Resource Rights in the Jurisprudence of the Inter-American Court of Human Rights: Comparisons with the Draft Nordic Saami Convention NIGEL BANKES(

ABSTRACT: The first part of the paper distils a set of legal propositions about the rights of indigenous people to land and resources from the jurisprudence of the Inter-American Court of Human Rights. These propositions cover such matters as the rights bearer, the recognition of indigenous lands, the duty to provide effective protection, the nature of the indigenous resource interest, and the right to restitution. The second part of the paper examines the land and resource provisions of the draft Nordic Saami Convention and offers some commentary on those provisions in light of the propositions derived from the jurisprudence of the InterAmerican Court. In particular, the analysis notes that the Inter American Court places more emphasis on the importance of indigenous legal customs in ascertaining the scope and content of indigenous property rights than does the draft Nordic Saami Convention. KEYWORDS: indigenous people, property, natural resources, customary law, traditional territory, restitution, Inter-American Court of Human Rights, draft Nordic Saami Convention

I. Introduction In a recent article in the European Journal of International Law, Gaetano Pentassuglia1 made the observation that the human rights standards encoded in specialised instruments relating to indigenous peoples fall short in some instances of the protections found in the jurisprudence arising under general human rights treaties. Pentassuglia supports this observation by noting that the specialised instruments ( Professor of Law, The University of Calgary, [email protected]. My thanks to Timo Koivurova for his comments on an early draft of this paper. 1

Gaetano Pentassuglia, Towards a Jurisprudential Articulation of Indigenous Land Rights, European Journal of International Law (EJIL) 22 (2011), 165.

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contain important uncertainties at crucial points whereas the jurisprudence that has developed in response to actual cases and petitions may offer more definitive and farreaching guidance. This is an important claim, as some argue that we need specialised instruments precisely because the claims of indigenous peoples will not find full recognition and protection in general human rights law.2 For example, there is the concern that international human rights norms are based upon a model of western liberalism which values the individual above community,3 or the concern that international law is still rooted in a colonial past and needs decolonising.4 Pentassuglia’s account is not a call for one route rather than another, rather, his goal is to emphasise the discursive interplay between specialised instruments and general adjudicative bodies. The result is a ‘jurisprudential dialogue’ rather than an implementation of specialised standards as new customary norms. The specialised instruments that Pentassuglia refers to include the International Labour Organization’s Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO C169) and the UN Declaration on the Rights of Indigenous People5 (UN Declaration). Pentassuglia also refers in passing to ongoing work within the Organization of American States (OAS) of the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples.6 The 2 See, discussing this question, Malgosia Fitzmaurice, The New Developments Regarding the Saami Peoples of the North, International Journal of Minority and Group Rights 16 (2009), 67. 3 See, e.g., Augusto Willemsen Diaz, How Indigenous Peoples’ Rights Reached the UN, in: Claire Charters/Rodolfo Stavenhagen (eds.), Making the Declaration Work (2009), 16, 18; note in this context that while the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (19 December 1966, UNTS 999, 302 ICCPR) can consider petitions from a member of an indigenous minority alleging a breach of Art. 27 ICCPR the Committee will not entertain petitions by a people alleging a breach of Art. 1 ICCPR. For discussion see Karen Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, EJIL 22 (2011), 141, 151–156. 4

Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (2005). Consider, e.g., the fact that indigenous peoples were not directly involved in the negotiation of the International Labour Organization’s Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989, UNTS 1650, 383, (ILO C169)). For discussion of its negotiation see Luis Rodrigues-Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (2005), esp. ch. 9, and briefly, Patrick Thornberry, Indigenous Peoples and Human Rights (2002), 339. 5 6

UN GA Res. 61/295 of 13 September 2007.

The current version and background documents are available at: http://www.oas.org/consejo/ cajp/Indigenous.asp (accessed on 7 November 2011).

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uncertainties that Pentassuglia identifies are four-fold.7 First, Pentassuglia argues that both the UN Declaration and ILO C169 lack clarity as to the legal dimensions of indigenous land rights and in particular the extent to which the dimensions of such rights are controlled by domestic law rather than indigenous customary law or international law.8 Second, both the UN Declaration and ILO C169 are less precise in dealing with the right to restitution of ancestral lands of which indigenous people were wrongfully and historically dispossessed than they are in dealing with the duty of the State to recognise current indigenous possession and use of lands. Indeed, Pentassuglia notes that State unease about the scope of any duty to make restitution during negotiations on the UN Declaration was reflected in a ‘compromise solution’ in which it was agreed that the Declaration should contain more “substantive standards relating to the protection of current lands and procedural, process-oriented requirements to deal with past injustices.”9 Third, the claim of indigenous people to sub-surface natural resources has been left essentially unresolved by the Declaration, and, more generally, specialised instruments seem to assume directly or indirectly the centrality of State ownership of sub-soil resources.10 Fourth, specialised instruments tend to evade the question of whether or not indigenous people have a veto over development projects that may affect traditional lands and resources.11 For instance, ILO C169 largely does not refer to the free, prior and informed consent (FPIC) principle but instead speaks more generally of consultation.12 And while Article 10 of the UN Declaration acknowledges a veto in one situation (forcible removal from lands), Pentassuglia suggests that the language is less clear elsewhere, generally using the formulation of consultation “in order to obtain their free prior and informed consent.”13 In each of these four cases Pentassuglia argues that the more general

7

In some respects of course the fact that there are uncertainties and compromises should hardly be surprising, that is the nature of negotiated instruments whether in this field or any other field (such as climate change) that presents huge political and economic challenges to the status quo. 8

Pentassuglia (note 1), 167–168.

9

Ibid., 169 (emphasis added).

10

Ibid.

11

Ibid.

12

Arts. 6 and 15 (2) ILO C169; the strongest provision is Art. 16 (2) dealing with relocation.

13

Ibid., and see, e.g., in the land and resources provisions of Art. 32 UN Declaration.

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jurisprudence offers more precise and more fully reasoned responses to the uncertainties than do the specialised instruments. The jurisprudence against which Pentassuglia measures the specialised instruments comes from one principal source and three more subsidiary sources. The principal source of jurisprudence is found in the ‘property rights’ decisions of the Inter-American Court of Human Rights (IACtHR).14 The subsidiary bodies of jurisprudence are the Human Rights Committee’s decisions on petitions under Article 27 International Covenant on Civil and Political Rights (ICCPR),15 the practice of the African Commission on Human and Peoples Rights under the African Charter on Human and Peoples’ Rights (Banjul Charter),16 and the decisions of domestic courts from a number of different jurisdictions.17 This paper proposes a modest extension of Pentassuglia’s project by applying the same approach to the draft Nordic Saami Convention (dNSC),18 a proposed specialised instrument dealing with Saami rights to be concluded between Norway, Sweden and Finland. More specifically the article has two goals. First, it aims to distil a set of propositions relating to land and resources from the jurisprudence of the IACtHR under the 14 These decisions are Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2001, Series C, No. 79 (Awas Tingni); Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, Series C, No. 125; Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006, Series C, No. 146; Moiwana Village v. Suriname, Judgment of 15 June 2005, Series C, No. 124 ( Moiwana); Saramaka People v. Suriname, Judgment of 28 November 2007, Series C, No. 172 (Saramaka). There is one additional decision that presumably appeared after Pentassuglia submitted his manuscript: Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations and Costs, (Judgment of 24 August 2010, Series C) No. 214 (Xákmok Kásek). These decisions are all available via: http://www.corteidh.or.cr/ (accessed on 7 November 2011). 15 Pentassuglia (note 1), 182–184, focuses on one recent decision by the Human Rights Committee (CCPR), Ángela Poma Poma v. Peru, Comm. No. 1457/2006,UN Doc. CCPR/C/95/D/1457/2006 (2009). 16 African Charter on Human and Peoples’ Rights, 27 June 1981, ILM 21 (1982), 58. Here the focus is on the Commission’s recent and thoroughly reasoned decision involving the Endorois people of Kenya, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Comm. 276/2003, available at: http://www.achpr.org/ english/Decison_Communication/Kenya/Comm.%20276-03.pdf (accesed on 7 November 2011), but Pentassuglia also canvasses earlier decisions as well as the Commission’s more general work on the status of indigenous peoples in Africa. 17

Pentassuglia (note 1), 190–196, refers to decisions from Kenya, Belize, Peru, Japan, Malaysia, Philippines, Canada and Australia. 18

An unofficial translation of the text is reprinted in: Journal of Indigenous Peoples Rights (JIPR) 3 (2007), 98.

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terms of the American Convention on Human Rights (ACHR).19 Second, it aims to appraise the proposed land and resources provisions of the draft Convention in light of those propositions. This is perhaps something of a geographical stretch, as none of the Nordic States could be a party to the relevant instruments that afford the juridical organs of the OAS their jurisdiction. On the other hand, if one places the Nordic States in their Arctic setting one must recall that both Canada and the United States are members of the OAS. While neither is bound by the compulsory jurisdiction of the Court, both are subject to the American Declaration on the Rights and Duties of Man,20 and to the jurisdiction of the Inter-American Human Rights Commission, which has developed an impressive body of jurisprudence dealing with indigenous peoples.21 Pentassuglia’s four key issues seem particularly pertinent in the present context in light of observations by Mattias Åhrén, a member of the Expert Group responsible for drafting the dNSC. Åhrén notes that two of these issues were short-changed during the negotiations of the draft text.22 This was as a result of the time constraints faced by the Expert Group at the end of its tenure. These were the issues of restitution of lands, and rights to share in the profits from natural resources extraction.23 In both cases the Expert Group effectively decided to reserve on these issues. Therefore, both Articles 34 and 37 dNSC contain a savings clause to the effect that the provisions of the article “shall not be construed as to imply any limitation in the right [to restitution of property or a share in resource profits] that may follow under international law.” In appraising the dNSC in light of this jurisprudence, this paper does not suggest that the Saami and the Nordic States simply ‘transplant’ regional norms from the

19

Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969, UNTS 1144, 123. 20 Adopted by the Ninth International Conference of American States, Bogotá, Colombia, 2 May 1948, OAS Doc. OEA/Ser.L.V/II.82 doc.6 rev.1 (1992), 17. 21 See in particular Marie and Carrie Dann v. United States, Case 11.140, Report No. 75/02 of 27 December 2002, and Maya Indigenous Communities of the Toledo District v. Belize, Case 12.053, Report No. 96/03 of 24 October 2003. An important case to follow involving Canada and which has recently been declared admissible is Hul’qumi’num Treaty Group v. Canada, Petition 592/07, Report No. 105/09 of 30 October 2009 (admissibility), all available via: http://www.cidh.oas.org/casos.eng.htm (accessed on 7 November 2011). 22

Mattias Åhrén, The Saami Convention, JIPR 3 (2007), 8, 27, 29, 30.

23

Ibid., 28–30.

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Americas to Scandinavia.24 Instead it suggests that as the parties move to negotiate the terms of the final instrument, they might have this jurisprudence in mind and consider the extent to which this jurisprudence can be used to identify the conceptual underpinnings of Saami land and resource rights and perhaps clarify some of the more general language used in the draft.25 This paper also has some analogies to an assessment carried out some years ago by Gudmundur Alfredsson. In an article, “Minimum Requirements for a New Nordic Saami Convention,”26 Alfredsson advanced the argument that any new Nordic Saami Convention should not fall below general international human rights standards or below the standards embodied in ILO C169.27

II. Background and Overview of the Draft Convention There are several detailed accounts of the background to the dNSC and accordingly this section will be brief.28 The Saami are the indigenous people of northern 24

The idea of transplanting legal norms is controversial. For some of the literature see Watson, Legal Transplants and Law Reform, Law Quarterly Review 92 (1979), 79; Kahn-Freund, On Uses and Misuses of Comparative Law, Modern Law Review 37 (1974), 1; Pierre Legrand, The Impossibility of ‘Legal Transplants’, Maastricht Journal of European and Comparative Law 4 (1997), 111. Differences in geography and patterns of settlement are important and may justify different approaches. Differences in legal culture must also be acknowledged. My general sense is that the positivism of Nordic States makes it difficult for them to accommodate a pluralistic account of indigenous property and resource rights. But there are of course differences between the three States. Svensson for example argues that Norwegian ratification of the ILO C169 has caused Norway to become more pluralistic: Tom G. Svensson, On Customary Law: Inquiry into an Indigenous Rights Issue, Acta Borealia 20 (2) (2003), 95, esp. 106–108. Svensson offers as evidence of this the decisions of the Norwegian courts in the Svartskog (2001) and Selbu (2001) Cases. Unofficial translations of these two important cases are available at: http://www. galdu.org/web/index.php?sladja=51&vuolitsladja=99&giella1=eng (accessed on 7 November 2011). 25 This is not of course to suggest that the Expert Group was unaware of this jurisprudence. Indeed the published writings of several members (e.g. Åhrén and Scheinin) make it clear that they are very familiar with these decisions and indeed Scheinin served as an expert in the Saramaka Case (note 14), para. 64(i). 26 Gudmundur Alfredsson, Minimum Requirements for a New Nordic Sami Convention (1999), Nordic Journal of International Law (Nordic JIL) 68 (1999), 397. 27 28

Given that even by then (1999) Norway was already a party.

Åhrén (note 22); Timo Koivurova, The Draft for a Nordic Saami Convention, European Yearbook of Minority Law 6 (2006/2007), 103 (hereafter “Draft”); id., The Draft Nordic Saami Convention: “Nations Working Together” (2008), International Community Law Review 10 (2008), 279.

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Norway, Sweden, Finland and the Kola Peninsula in Russia (Sápmi). They traditionally pursued a nomadic lifestyle depending either on the sea (coastal Saami) or on reindeer (mountain and forest Saami).29 The main organisational unit for the Saami is the siida.30 In 1986, the Saami Council proposed that the four countries should develop a convention jointly with the Saami to address Saami indigenous rights and the problems posed by national borders for the Saami.31 Ten years later the three Nordic governments appointed a committee to consider the question.32 The committee recommended proceeding and further recommended that an Expert Group should be established to draft a convention. The Expert Group (comprised of one member from each government and one member nominated by each of the three national Saami parliaments) presented an agreed text to the governments and the Saami parliaments in 2005. The proposed text has four official languages (Finnish, Norwegian, Swedish and Saami).33 An unofficial English translation has also been made available.34 Koivurova’s “Working Together” focuses on the background to the draft Convention and addresses some aspects of the text (e.g. the role of the Saami parliaments); the “Draft” piece also contains a commentary on each of the main chapters as well as some concluding observations discussing the possible obstacles to ratification of the draft Convention in Finland. 29

Mattias Åhrén, Indigenous Peoples’ Culture, Customs and Territories, and Traditions and Customary Law – The Saami People’s Perspective, Arizona Journal of International and Comparative Law 21 (2004), 63, 66. 30 Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Human Rights Council, Report of the Special Rapporteur on the rights of Indigenous People, James Anaya, The situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, UN Doc. A/HRC/18/35/Add.2 (2011). 31

Founded in 1956 the Saami Council is a non-governmental organisation) comprised of Saami member organisations from Finland, Russia, Norway and Sweden, see http://www.saamicouncil.net/? deptid=1116 (accessed on 7 November 2011). 32 Russia and the Russian Saami are not included in the draft Convention. Koivurova, Working Together (note 28), 284 and id., Draft (note 28) 109, explains that the involvement of Russia was simply too difficult given Russia’s general stance in relation to the recognition of indigenous people in UN fora and the reality that there are numerous indigenous peoples in Russia making it difficult for the Russian Federation to become a party to an international convention focusing on the rights of the Saami. 33 See the concluding clauses of the draft Convention following Art. 51. The recognition of Saami as one of the official languages of the Convention is, as Koivurova observes, of tremendous symbolic importance: Koivurova, Working Together (note 28), 288. The Expert Committee itself worked in Swedish and Norwegian, Koivurova, Draft (note 28), 105. 34 Reprinted in: JIPR 3 (2007), 98. The draft Convention was part of a larger report. That entire report has not been made available in translation but some parts have. For example, Annex III to the report dealing with the Saami right of self determination is reprinted in: JIPR 3 (2007), 52.

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In addition to a Preamble the draft contains seven chapters or groups of articles: Chapter I, the general rights of the Saami people (including clauses addressing the right of self determination and non-discrimination as well as a clause dealing with the recognition of Saami legal customs); Chapter II, Saami governance; Chapter III, Saami language and culture; Chapter IV, Saami right to land and water; Chapter V, Saami livelihoods (with specific clauses dealing with reindeer husbandry); Chapter VI, implementation and development of the Convention (including clauses dealing with an implementation committee as well as an article (Article 46) requiring the State parties to make the provisions of the Convention directly applicable in national law); and Chapter VII, final provisions (dealing with entry into force etc. but with two unusual provisions stipulating that the Convention should be submitted to the three Saami parliaments for approval and that ratification may not occur unless and until the three Saami parliaments have approved the text). Each of the three States appointed a committee to prepare an assessment of the dNSC. These assessments focused on the extent to which the provisions of the Convention codify or go beyond the obligations of States as a matter of customary law and the extent to which domestic legislation and practices might change to accommodate the provisions of the draft Convention were it to enter into force.35 The three States indicated in September 2007 that they were prepared to enter into negotiations based on the draft text and held the first negotiating session in March 2011.

III. Lands and Resources Jurisprudence of the IACtHR In the six cases that have come before it, involving the land and resource claims of indigenous people, the IACtHR has relied principally on Article 21 ACHR (right to

35 These committee reports were all prepared in the respective national languages of the three States. The author has benefited from being able to review unofficial translations prepared as follows: the Finnish report (translation prepared by Timo Koivurova, Leena Heinämäki and Tanja Joona); the Norwegian report (translation of Final Remarks prepared by Susann Skogvang); a summary of the Swedish report provided by Christina Allard.

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property).36 Other provisions have been invoked by the Court37 as well as the Commission and the complainant community.38 The Court has also considered the domestic laws of the States concerned39 and other international human rights instruments, in particular ILO C169 and Articles 1 and 27 ICCPR to inform the interpretation of Article 21 ACHR.40 For example, in the three cases involving Paraguay,41 the Court refers to ILO C169 as Paraguay is a party to the Convention. Similarly, the Court refers to and relies upon the domestic laws and constitutions of Paraguay in these three cases and Nicaragua42

36 Art. 21 ACHR provides as follows: “1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law”. 37 These provisions include: Art. 3 (right to juridical personality), IACtHR, Saramaka (note 14); Art. 4 (right to life), id,. Yakye Axa (note 14) and Sawhoyamxa (note 14), para. 148 – and especially re territory, para. 164; Art. 5 (right to humane treatment), id,. Moiwana (note 14), paras. 90–103; Art. 8 (right to a fair (timely) trial), id., Sawhoyamaxa (note 14), paras. 102–108; Art. 22 (freedom of movement and residence), id., Moiwana (note 14), paras. 107–121; Art. 25 (right to judicial protection), id., Sawhoyamaxa (note 14), paras. 102–108. In many cases the Commission and the community advance various combinations of the substantive provisions (e.g. the right to life and property) with the more procedural provisions (e.g. the right to judicial protection/effective remedy). In all of the cases the Court also relies on Art. 1 (obligation to respect rights) and Art. 2 (domestic legal effects). 38

Under the Inter-American system an individual or community has no right of direct access to the Court. A complaint is first brought before the Commission which issues a report on the matter. If the State does not provide a satisfactory response the Commission may take the matter to the Court (Arts. 51, 61 ACHR). The Commission is principally responsible for the carriage of the case before the Court but counsel for the complainant community or individual may also adduce evidence and make argument. The community may rely on the existing factual record to argue a new cause of action; it may not lead evidence of facts in relation to another matter. See IACtHR, Saramaka (note 14), paras. 11–17, dealing with facts in relation to another matter, and ibid., paras. 25–29 dealing with the latitude accorded to the representatives of the community. Id., Moiwana (note 14), provides two examples of the representative of the community arguing breaches of articles not argued by the Commission: the right to humane treatment (para. 87) and the right to property (para. 122). 39 The Court is obliged to consider domestic laws and other conventions to which a State may be a party because of the language of Art. 29 (b) ACHR which provides that “No provision of the Convention shall be interpreted as […] b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party”. 40

For a general discussion of the Court’s interpretive approach see Lucas Lixinski, Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law, EJIL 21 (2010), 585. 41

IACtHR, Yakye Axa (note 14), id., Sawhoyamxa (note 14), and id., Xákmok Kásek (note 14).

42

Paraguay and Nicaragua are both parties to the ILO C169.

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in the Awas Tingni Case since these laws and constitutions contain important protections for indigenous peoples and their land rights. This raises a question of the extent to which the Court’s interpretation of the scope of the property rights protection is in some way contingent upon domestic laws (including constitutional provisions) or other international instruments which protect indigenous property rights. In this context Saramaka is particularly important since Suriname is not a party to ILO C169 and its domestic legislation did not recognise a right to communal property of members of its tribal communities.43 In Saramaka, the Court considered other sources and in particular Articles 1 and 27 of the close to universally ratified ICCPR, and confirmed that it could still apply to Suriname the same broad and inclusive interpretation of Article 21 ACHR that it had developed in its earlier decisions involving Nicaragua and Paraguay.44 The six cases all involved claims by indigenous communities that the State had denied the community the right to the use and enjoyment of its property. It is possible to group the cases as follows. The first are a group of cases in which the trigger for the complaint is that the State is treating indigenous lands as its own and disposing of natural resources rights (forest or non-renewable) to third parties. The cases in this category are Awas Tingni and Saramaka (the latter involving a tribal people rather than an indigenous people). These two cases are characterized by the contemporaneous nature of the interference with indigenous or tribal territory.45 They are not claims of historic dispossession. The second group comprises of cases in which the indigenous community alleges that the State is refusing or unreasonably delaying recognition and protection of an indigenous property interest. They all involve situations in which the land in question had been historically titled in the name of a third party by way of a grant from the Settler State46 and where that third party still has formal ownership of

43

IACtHR, Saramaka (note 14), paras. 93, 98 and id., Moiwana (note 14), paras. 86.5, 130.

44

Id., Saramaka (note 14), paras. 93–95.

45

Ibid., para. 142. The evidence was that the State had issued at least four logging concessions and a number of mining concessions within the traditional territory. 46 The term ‘Settler State’ captures two ideas: (1) the State created as a result of the colonial acquisition of the territory of the formerly sovereign indigenous people, and (2) the reality that in these cases the citizens of the colonial powers stayed (settled) and did not return to the metropolitan territory and in many cases became the majority and the indigenous population the minority. Similarly the term ‘settler laws’ or ‘settler grants’ refers to laws and titles originating with the Settler State rather than from the indigenous people.

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the land concerned.47 These are all restitution cases. The cases in this category are the three Paraguay cases: Yakye Axa (2005), Sawhoyamxa (2006) and Xákmok Kásek (2010).48 Each case involved claims of historic dispossession.49 In each case the Court must (in order to avoid the charge that it had no jurisdiction ratione temporis50) have concluded that there was a continuing breach of a right to property obligation.51 A number of broad propositions or principles, in relation to the land and resource rights of indigenous peoples, can be advanced from these cases52 and eighteen of them are advanced here with detailed commentary. 47 IACtHR, Moiwana (note 14), does not fit into either category since it involved government armed forces dispossessing a tribal community of its lands and territories and in recent rather than historic times. 48

See supra, note 14.

49

Each case involves land in the Paraguayan Chaco that was acquired by British interests through the London Stock Exchange at the end of the 19th century as a consequence of a debt owed by Paraguay after the so-called war of the triple alliance. The Indians occupying the lands were kept in complete ignorance of these transactions. The lands were subsequently conveyed to cattle interests and some evangelising missions. See IACtHR, Sawhoyamaxa (note 14), para. 73(1)–(4), and id., Yakye Axa (note 14), para. 50.10. 50 While an international tribunal can find that a State has waived its right to object to jurisdiction on the basis of failure to exhaust local remedies, a tribunal must affirmatively establish that it has jurisdiction ratione temporis. For further discussion of jurisdiction ratione temporis in the context of indigenous peoples’ claims in the jurisprudence of both the European and Inter-American courts see Nigel Bankes, The Protection of the Rights of Indigenous Peoples to Territory through the Property Rights Provisions of International Regional Human Rights Instruments, Yearbook of Polar Law 3 (2011), 57, and for further discussion of the concept of continuing breach see Joost Pauwelyn, The Concept of a ‘Continuing Violation’ of an International Obligation, British Yearbook of International Law 66 (1995), 415. 51

Conceptually there are perhaps two ways of proceeding: (1) an allegation that the breach is a continuing breach, (2) an allegation that there is a breach of a new obligation, a free standing duty to restore – but it may be that such an obligation has to be rooted in domestic law unless, once again, this can be characterised as continuing obligation. In Xákmok Kásek the IACtHR (note 14), para. 55, was careful to note that “[t]he Court will analyze the facts related to the Community’s right to property and its replevin claim to the traditional land after March 11, 1993 when the State recognized the Court’s […] compulsory jurisdiction. However […] the Court will point to prior facts only so they can be considered as background for the case, not to derive any legal purposes based on them.” Pentassuglia (note 1), 173, comments on this issue. 52 It is important to emphasise that these propositions are not claimed as general propositions of customary law (although some may well have that status). All that is claimed here is that these propositions can be derived from the judgments of the Court in relation to the interpretation of Art. 21 (and related articles) ACHR. As and when these propositions solidify as general principles of law or as norms of customary law then they may also be used to inform the interpretation of other related treaties on the basis of Art. 31 (3)(c) of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). For discussion of this paragraph of the VCLT and the relevant case law see Duncan French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules International and Comparative Law Quarterly (ICLQ) 55 (2006), 281 and Campbell McLachlan, The Principles of Systemic Integration and Article 31 (3)(c) of the Vienna Convention (2005), ICLQ 54 (2005), 279.

242 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 A. Proposition 1: Identity of the Rights Bearers The identity of the rights bearers (the property owner) is not governed by domestic law but by the claimant community as a reflection of its autonomy, drawing on relevant social and historical facts53 and in accordance with its traditional customs and norms.54 The State has a duty to recognise the juridical personality of such an owner.55

In several cases, the State has argued that the petitioner lacked standing or some other capacity to bring a property claim on behalf of an indigenous community. The Court has robustly rejected such objections and in doing so has held that it is not the responsibility of the Court or the State to determine a community’s denomination or its ethnic identity. Accordingly, in Xákmok Kásek the Court saw no reason to reject or suspend a claim where the claimant community was multi-ethnic and based largely on intermarriage between two formerly distinct indigenous peoples.56 Similarly, in Saramaka the Court held that the fact that some individual Saramakans no longer lived in the traditional territory and in accordance with customary norms did “not affect the distinctiveness of this tribal group nor its communal use and enjoyment of its property.”57 Further, the capacity of some members of that group to assert communal rights on behalf of the people “is a question that must be resolved by the Saramaka people in accordance with their traditional customs and norms, not by the State or this Court […].”58 The State has a duty to recognise the juridical personality of the community so that the community can assert and protect its interests in domestic courts. If it cannot do so, the community is rendered vulnerable and placed in a situation where the individual property rights of settlers are allowed to trump communal property rights.59

53

IACtHR, Xákmok Kásek (note 14), para. 37.

54

Id., Saramaka (note 14), para. 164; id., Moiwana (note 14), para. 131.

55

Id., Saramaka (note 14), paras. 172–174.

56

Id., Xákmok Kásek (note 14), paras. 37–43.

57

Id., Saramaka (note 14), para. 164.

58

Ibid. Here the Court made these comments in the context of an allegation that the State was in breach of Art. 3 ACHR, the right to juridical personality. 59

Ibid., para. 173. The Court dealt with another aspect of the identity of the rights bearer in the reparations part of its judgment concluding that (ibid., para. 188) while the Court ordinarily required that individual beneficiaries of reparations be identified, it was not appropriate to insist upon that requirement in this case given, inter alia, the collective nature of the reparations but also observing that “the members of the Saramaka people are identifiable in accordance with Saramaka customary law”.

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The general sense of these cases is that the Court will not allow the State to put in place procedural obstacles preventing rights bearers or a community from arguing their case. The Court also gives great weight to indigenous customary norms.

B. Proposition 2: Property Held Communally in Accordance with Indigenous Norms

The right to property in the ACHR extends to the protection of property that is held communally.60 Such property is entitled to protection equal to that extended by the State to settler titles.61 It is not necessary for the petitioner to show that its property interest originates with a State grant. It is enough for the petitioner community to show that its property interest is based on possession in accordance with the customary norms of an indigenous community.62 The State has a duty to consult with the indigenous community to satisfy itself as to the elements of the community’s tenure system.63 At the heart of this set of propositions is the claim that the Court is prepared to recognise the normative significance of an indigenous legal system and that system’s conceptualization of property. The indigenous community does not have to prove that its occupation of land has some legal significance within the legal categories of the Settler State (e.g. immemorial usage or prescription, or putting the land to agricultural use). It is enough to establish that the indigenous legal system endows such occupation with juridical significance that can be analogized to property. The Court 60

IACtHR, Awas Tingni (note 14), paras. 145, 149. Equal protection may require special measures: id., Saramaka (note 14), paras. 88–91, 102–103. 61

Id., Xákmok Kásek (note 14), para. 87; id., Sawhoyamxa (note 14), para. 120.

62

Id., Awas Tingni (note 14), para. 151.

63

Id., Saramaka (note 14), paras. 100–101, i.e. the State cannot plead that it does not recognise the indigenous tenure system because it is not familiar with it. Although the focus of the Court’s indigenous property rights jurisprudence is on the community, in Yakye Axa the IACtHR (note 14), para. 143, emphasised that Art. 21 ACHR protects “both the private property of individuals and communal property.” It is not clear whether the Court is thinking here about non-indigenous private property interests or indigenous property interests as either individual or communal. The context may suggest that it is the former i.e. the Court is assuming that indigenous interests are communal and non-indigenous interests, individual. More pertinent perhaps is the Court in Moiwana (note 14), para. 86(6), where it acknowledged that land rights in N’dukja society existed at “several levels ranging from the rights of the entire ethnic community to those of the individual”.

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emphasises that a term like ‘property’ when used in an international instrument has an autonomous meaning which is not controlled by the terms and definitions of domestic law.64 It follows that actual physical occupation may not be necessary to establish a property claim.65 Equal protection must be offered to property “springing from the culture, uses and beliefs” of indigenous people as to property claims proceeding from State granted titles. Otherwise there would be “only one way of using and disposing of property” which renders Article 21 protection “illusory for millions of persons.”66 Thus, the Court endorses a pluralistic account of the concept and institutions of property.

C. Proposition 3: Recognising an Indigenous Conceptualisation of Property

The right of indigenous peoples to property under Article 21 ACHR protects the close link that indigenous peoples have to their traditional lands, the natural resources that are part of their culture and to the land’s other intangible elements including their spiritual relationship with that traditional territory.67 The Court has consistently stressed the special relationship between indigenous peoples and traditional territory. It does not seem too far-fetched to suggest that the Court has redefined ‘property’ for the purposes of Article 21. Consequently, property is “the relationship that indigenous peoples have with their territory in order to nurture their social, cultural and economic survival” and it is this conceptualisation of 64 Id., Awas Tingni (note 14), para. 146; on autonomous meaning see Tom Allen, The Autonomous Meaning of ‘Possessions’ under the European Convention on Human Rights, in: Elizabeth Cooke (ed.), Modern Studies in Property Law, vol. II (2002), 58; George Letsas, The truth in autonomous concepts: how to interpret the ECHR, EJIL 15 (2004), 279. 65 And note as well that current occupation or possession is not required in restitution claims where the indigenous people have been unlawfully dispossessed: see IACtHR, Sawhoyamaxa (note 14), para. 128. As the Court says in Awas Tingni (note 14), para. 149: “For indigenous communities relations to land are not merely a matter of possession and production” and that the close ties of such indigenous communities to the land “must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival”. 66 67

Id., Sawhoyamaxa (note 14), para. 120.

IACtHR, Xákmok Kásek (note 14), para. 89; id., Moiwana (note 14), para. 131; id., Sawhoyamxa (note 14), paras. 118, 121 and referencing (para. 119) Art. 13 ILO C169 referring to cultural and spiritual values and connections to land.

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property that the State has a duty to protect.68 This may not be a familiar conceptualization of property for western trained lawyers but property is, after all, an essentially contested concept with a range of possible meanings.69

D. Proposition 4: Clarification of the Geographical Scope of Indigenous Lands

The State has a duty to clarify the geographical scope of indigenous lands and must establish an effective process to delimit, demarcate and title those lands.70 As the Court observed in Yakye Axa, the “abstract or juridical recognition of indigenous lands, territories or resources, is practically meaningless if the property is not physically delimited and established.”71 Delimitation refers to the process of establishing the geographical scope of indigenous territory and should be done “without detriment to the rights of other indigenous communities.”72 The State cannot engage in the delimitation exercise unilaterally but must do so collaboratively and respectfully.73 Demarcation involves physically demarcating the delimited lands on the ground. Titling must involve the issuance of title deeds. 68

See in particular id., Saramaka (note 14), paras. 91, 95 (drawing upon Arts. 1 and 27 ICCPR in support of this interpretation); id., Yakye Axa (note 14), paras. 135, 138, esp. para. 154. The text in quotation marks is my effort to capture the Court’s conceptualisation of property. 69

While lawyers and legal writers tend to emphasise property as a bundle of rights and pay particular attention to the right to exclude (the world) and the right to transfer/alienate to others, some theorists are not so limited. See, for example, Crawford Brough McPherson, Liberal Democracy and Property, in: id. (ed.), Property: Mainstream and Critical Positions (1978), 199, arguing that property as a right to exclude is too narrow and that the individual property right that is needed in a liberal democratic society is “the right not to be excluded from the use of benefit of those things (including society’s productive powers) which are the achievements of the whole society.” Along the same lines see Brendan Edgeworth, Post-property? A postmodern conception of private property, University of New South Wales Law Journal 11 (1988), 87, 90, 114. 70

IACtHR, Awas Tingni (note 14), para. 153. The judgment does not actually refer to an effective process but this seems implicit: Id.; Saramaka (note 14), para. 194(a); see also infra, propositions 6–9. 71

Id., Yakye Axa (note 14), para. 143.

72

Ibid., para. 153. The Court is thus sensitive to the possible problems of overlapping claims to territory from different indigenous peoples. 73 On the importance (and difficulty) of respect and trying to achieve an understanding of the customary norms of another society see Mark D. Walters, The Morality of Aboriginal Law, Queen’s Law Journal 31 (2006), 470.

246 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 E. Proposition 5: Recognition of Title

The title that the State is obliged to recognise is the functional equivalent of an ownership title in settler law.74 The Court had little to say in Awas Tingni about the precise legal quality of the title that it was recognising. In particular it did not indicate whether it was recognising an estate or interest known to customary law or under some category of settler law.75 However, in later cases the Court interprets Awas Tingni somewhat more broadly. For example, in Saramaka the Court cites Awas Tingni for the proposition that “members of indigenous and tribal peoples must obtain title to their territory in order to guarantee its permanent use and enjoyment.”76 Thus, in that case the Court rejected the State’s argument that a privilege of use rights could satisfy Article 21 ACHR. Similarly, in Xákmok Kásek, the Court cited Awas Tingni for the proposition that “the indigenous’ [sic] traditional possession of their lands has equivalent effects as a full land title granted by the State.”77 And finally, in Moiwana the Court concluded that the community members are “considered the legitimate owners of their traditional lands; [and] as a consequence they have the right to the use and enjoyment of that territory.”78 This is a significant issue in some jurisdictions where there is an important debate in the literature as to the consequence of recognising and titling indigenous categories or settler categories of property.79 Much of this literature argues that the recognition 74

See supra, note 46.

75

This does not refer to the question of whether or not an indigenous title includes a mineral estate or is confined to the surface estate but rather the question of whether the interest is (in common law terms) a possessory estate or just a set of incorporeal entitlements or use rights (the distinction also made in Art. 14 (1)(1) and (2) ILO C169). 76

IACtHR, Saramaka (note 14), para. 115.

77

Id., Xákmok Kásek (note 14), para. 109, and referring to id., Sawhoyamaxa (note 14), para. 128 as well as id., Awas Tingni (note 14), para. 151. 78 79

Id., Moiwana (note 14), para. 134.

The debate is especially a live one in Australia where many commentators argue, post the Native Title Act that the High Court’s decisions requiring proof that a particular rights claim is supported by a customary law claim have effectively disaggregated the content of the native title and denied it a modern economic content. See e.g. Lee Godden/Maureen Tehan, Translating Native Title to Individual ‘Title’ in Australia: Are Real Property Forms and Indigenous Interests Reconcilable, in: Cooke (note 64), 263; Samantha Hepburn, Transforming Customary Title to Individual Title: Revisiting the Cathedral, Deakin Law Review 11 (2006), 63; Lisa Strelein, Conceptualising Native Title, Sydney Law Review 23 (2001), 95.

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and titling of customary interests may limit the protection offered the community to a bundle of disaggregated and traditional rights. By contrast, if titling and recognition draws on settler ideas of title (and not just use rights80) then the autonomous space that is reserved to the indigenous community within the settler society and legal system may be enlarged.81

F. Proposition 6: Legal Remedies

The State must ensure that it has in place effective and adequate legal remedies to protect indigenous communities against the violation of their property rights.82 The property interests of indigenous communities may be vulnerable for a number of reasons including the absence of juridical recognition of the community83 and the failure to recognise communal property interests. As a result, the community may be denied access to the judicial remedies which would ordinarily be available to property owners as well as more specialised compensatory remedies. For example, in some legal systems the owner may be entitled to compensation or a fee where mining occurs on that person’s property.84 In the Court’s view the State will be in breach of Articles 21, 25, 2 and 1 (1) ACHR unless it extends similar entitlements to indigenous owners.85

G. Proposition 7: Moratorium on Resource Activities Pending Titling

Pending delimitation, demarcation and titling, the State must abstain from actions that might lead agents of the State or third parties acting under its authority or acquiescence “to affect the existence, value, use or enjoyment of the property located 80

If all that is recognised are use rights (e.g. the right to hunt) then there is perhaps little to choose between the two approaches since both approaches implicitly recognise that if only certain rights are claimable by the indigenous community then the balance of the sticks in the bundle must be held by another owner. 81 On the concept of indigenous title as recognition space for autonomy see Strelein (note 79), 98, and drawing on Noel Pearson’s writings. 82

IACtHR, Saramaka (note 14), paras. 176 et seq.

83

See supra, proposition 1.

84

IACtHR, Saramaka (note 14), para. 183.

85

Ibid., paras. 175, 179–182, 185.

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in the physical area where the members of the Community live and carry out their activities.”86 This proposition serves the interlocutory function of protecting indigenous territorial claims before they can be delimited, demarcated and titled. The area to be protected is the physical area where the community carries out its activities. Two observations are in order. First, the protected lands are identified by relevance to a physical test rather than a juridical test. The Court at this stage is not concerned with the legal quality of indigenous occupation. Second, it follows that the protection offered at this stage may be more extensive or less extensive than actually required once the delimitation, demarcating and titling process is completed.

H. Proposition 8: Review of Existing Third Party Resource Rights

Where the State has issued resource rights to third parties within the traditional territory of an indigenous people it should review those concessions to assess whether they need to be modified to ensure the survival of indigenous people.87 The Court added this proposition in Saramaka in light of its development of the concept of effective participation in resource developments within traditional territory and the articulation of a series of safeguards.88 As with claims to restitution, this proposition requires the State to reach back to examine pre-existing arrangements.89

I. Proposition 9: Effective Participation in Decisions that Affect Traditional Lands

The duty of the State to protect and guarantee Convention rights (Article 1 (1) ACHR) means that the State must ensure the effective participation of the community in relation to plans or decisions that might affect traditional lands or which 86

Id., Awas Tingni (note 14), para. 153(b); id., Saramaka (note 14), para. 194(a).

87

Id., Saramaka (note 14), para. 194(a): contextually this is a reference to recently granted resource rights rather than historical alienations. 88

The resource elements of indigenous titles are developed below, see infra, propositions 11–13.

89

See discussion of restitution infra, propositions 14–18.

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might restrict the use and enjoyment of those lands and thus preclude or limit their use for subsistence purposes.90 The Court in Xákmok Kásek held that Paraguay was in clear breach of the obligation to ensure effective participation when it authorised the creation of a private nature reserve without consulting or even informing the indigenous community.91

J. Proposition 10: Traditional Territory and the Right to Life and Humane Treatment

Denial of access to traditional territory and or denial of a secure community land base may constitute the denial of the right to life92 and or the right to humane treatment.93 In Yakye Axa the Court held that the State’s failure to recognise the community’s right to communal property had the effect of depriving the community of “access to its traditional means of subsistence, as well as to use and enjoyment of the natural resources necessary to obtain clean water and to practice traditional medicine to prevent and cure illnesses.”94 The Court in Moiwana used similar language but there characterised the practical exclusion from traditional lands (leading to an inability to practice customary means of subsistence and livelihood) as a breach of the right to humane treatment.95 These two cases emphasise that a denial of a property interest can be characterised in a number of different ways. The characterisation of the right may affect the ability of the State to justify any infringement.96 90

IACtHR, Xákmok Kásek (note 14), para. 157.

91

Ibid. Decisions in relation protected land status may also prejudice indigenous access to those lands. See also in this context African Court on Human and Peoples’ Rights, Endorois (note 16). This proposition has been included here as part of set of propositions dealing with the duty to protect indigenous access to those lands but it is also related to proposition 13 infra dealing with participation in resource developments within traditional territory. 92

Art. 4 ACHR; IACtHR, Yakye Axa (note 14), para. 168.

93

Art. 5 ACHR, IACtHR, Moiwana (note 14), para. 102.

94

Id., Yakye Axa (note 14), para. 169; despite reference to the denial of the means of subsistence the Court did not in this instance refer to Art. 1 (2) ICCPR. 95 96

Id., Moiwana (note 14), para. 102.

See in this context African Court on Human and Peoples’ Rights, Endorois (note 16), paras. 212, 216, and discussed in Bankes (note 50), 110.

250 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 K. Proposition 11: Protection of Resources

The ‘content’ of an indigenous title that is protected by the right to property (referring here not to the legal quality of the title but the question of which resources are included in such a title) is not governed exclusively by State law. Rather it is informed by: (a) the customary norms of the indigenous community, including the use made of particular resources,97 and (b) the extent to which such resources are necessary or essential to the survival, development and continuation of the way of life of that community.98 Whereas ILO C169 appears to leave it open to States to take the position that its constitution vests all mineral rights in the State and that such a position (at least if applied in a non-discriminatory manner) is determinative of this aspect of an indigenous title,99 the jurisprudence of the IACtHR insists that this is not a matter of autointerpretation or State law. This is clear from Saramaka where the State claimed that all resources and in particular subsoil resources are vested in the State and as such were determinative.100 The Court rejected that submission, preferring instead to emphasise two factors in assessing indigenous resource claims; one factor considers the uses, customs and norms of the indigenous community, and the second factor is the notion of cultural necessity. Both conditions are necessary. It is not enough, for example, that an indigenous community might have used natural seepages of tar and bitumen to caulk boats. That itself will not entitle the community to maintain a property claim to oil resources.101 In Saramaka the Court held that the Saramakans were able to establish an indigenous title to trees and timber since the evidence showed that they made widespread use of different trees and forest resources for building (canoes and houses), for roofing 97 IACtHR, Awas Tingni (note 14) supports the reference to customary norms while id., Saramaka (note 14), paras. 122, 155, supports the reference to actual use. 98

This aspect of the test is based on id., Saramaka (note 14), paras. 122–123.

99

Art. 15 (2) ILO C169. It is important to emphasise that this deference to State rules with respect to minerals does not apply to other natural resources such as forestry and fishery resources or water resources. The rights of indigenous peoples to such resources on lands traditionally occupied “shall be specially safeguarded” (Art. 15 (1)), i.e. Art. 15 (2) is an exception to the general norm of Art. 15 (1). 100 101

IACtHR, Saramaka (note 14), para. 118.

See also Nigel Bankes, Aboriginal Title to Petroleum: Some Comparative Observations on the Law of Canada, Australia and the United States, Yearbook of New Zealand Jurisprudence 7 (2004), 111.

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material, for food and cooking oil.102 Gold, however, did not form part of the tribal title since, apart from the general claim that the Saramakans owned everything from the top of the trees to the centre of the earth, there was no evidence that the Saramakans “traditionally used gold as part of their cultural identity or economic system.”103 At several points the Court suggested that it has used the same test to determine the existence of an indigenous property interest in natural resources104 as it has applied to non-resource property interests. The Court however is not completely consistent. For example, the Court does not use the terms ‘delimit, demarcate and title’ with respect to natural resources but refers more generally to the right of indigenous communities “to use and enjoy” these resources.105 Other elements of the Court’s treatment of the State’s right to use such resources almost makes it appear as if the Court is contemplating some shared interest in such resources.106

L. Proposition 12: Qualifying Indigenous Property Rights

Indigenous property rights (including rights to natural resources), like the property rights of settlers, are not absolute and may be subject to such restrictions as are: a) established by law, b) necessary, c) proportional, and d) established with the aim of achieving a legitimate objective in a democratic society.107 The Court’s general statement of the grounds that might justify State interference with a property right including an indigenous property right is uncontroversial and fully in accord, for example, with the ‘fair balance’ approach of the European Court 102

IACtHR, Saramaka (note 14), paras. 144–146.

103

Ibid., para. 155.

104

See, e.g., ibid., para. 141: “Having declared that the Saramakas’ right to use and enjoy their traditionally owned lands necessarily implies a similar right with regards to the natural resources that are necessary for their survival […].” And ibid., para. 194(c) using the term “collective title” to refer to the territory traditionally used but also “the lands and natural resources” necessary for their cultural survival. 105

See in particular ibid., para. 158.

106

See infra, the discussion and references in the context of propositions 12 and 13.

107

IACtHR, Yakye Axa (note 14), para. 144; id., Saramaka (note 14), paras. 127, 143: “Article 21 of the Convention does not per se preclude the issuance of concessions for the exploration and exploitation of natural resources in indigenous or tribal territories”.

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of Human Rights in cases arising under Article 1 of the Protocol to the European Convention of Human Rights.108 However, the Court’s application of this justificatory approach in Saramaka raised novel considerations. Saramaka did not involve a conflict between Saramakan property claims and the claims of an old settler title. Rather what was at issue was the continuing right of the State to grant resource interests to third parties. The Court discussed the issue of resource rights from the perspective of both the State and the indigenous people. First, inquiring into the ‘nature and scope’ of the Saramakan’s resource interest the Court concluded (see supra, proposition 11 and commentary) that the Saramakan property interest extended to those resources necessarily connected to the physical and cultural survival of the people. But second, having established a Saramakan ownership interest in at least some (but not all) resources the Court then went on to consider “to what extent the State may grant concessions for the exploration and extraction of those and other natural resources found within Saramaka territory.”109 The question here is whether it is appropriate to deal with these two categories of resource interests together (i.e. those resources included in the Saramakan title and those that are held not to be so included). It is one thing to say, as the Court does, that “Article 21 of the Convention should not be interpreted in a way that prevents the State from granting any type of concession for the exploration and extraction of natural resources within the Saramaka territory”110 provided that it is referring to resources that the Saramaka do not own. This must be reasonable since such resources, by the Court’s own definition, are not essential to the cultural survival of the indigenous people. But this can hardly be appropriate if the Saramaka have a property interest in such resources. If they do, then the State should either not be able to alienate such resources to third parties, or, at most, only if it can meet the four fold test referred to within this proposition. It may be possible for the State to do this111 108 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS No. 9. For discussion see Bankes (note 50), 86–90, 101–105. 109

IACtHR, Saramaka (note 14), para. 123 (emphasis added).

110

Ibid., para. 126.

111

For example, the mining legislation of some Nordic States contemplates that miners may be able to stake and develop privately owned minerals (on payment of compensation) but the State would have to develop a non-discriminatory regime to give effect to this. The ‘legitimate public interest’ that is usually

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but unless and until the State has put a regime in place which properly weighs the factors referred to in the proposition then any attempt by the State to grant rights to those resources prima facie engages the responsibility of the State. The justification tests of proposition 12 are also relevant in the context of possible restitution claims where there may be a conflict between State-granted private property titles and claims involving restoration of ancestral lands. In such a situation the State must assess, on a case by case basis, “the restrictions that would result from recognizing one right over the other.”112 And in doing so the State must be sensitive to the values associated with ancestral lands for indigenous peoples: When […] apply[ing] these standards to clashes between private property and claims for ancestral property […], the States must assess, on a case by case basis, the restrictions that would result from recognizing one right over the other. […] States must take into account that indigenous territorial rights encompass a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations. Property of the land ensures that the members of the indigenous communities preserve their cultural heritage. […] Disregarding the ancestral right of the members of the indigenous communities to their territories could affect other basic rights, such as the right to cultural identity and to the very survival of the indigenous communities and their members.113

By contrast, taking the property of a private party to permit restitution to indigenous people might well be justifiable and proportional in a “democratic and pluralist society” provided that compensation is payable.114

M. Proposition 13: Procedural Safeguards

Where the State proposes to licence the development of resources within the traditional territory of indigenous people it must comply with certain safeguards to articulated to justify such laws is that the mineral estate should not be sterilised from development in the national interest by the accident of ownership. See Hans Petter Graver/Geir Ulfstein, The Sami People’s Right to Land in Norway, International Journal on Minority and Group Rights 11 (2004), 337, 367; Nigel Bankes, Oil and Gas and Mining Development in the Arctic: Legal Issues, in: Natalia Loukacheva (ed.), Polar Law Textbook, Nordic Council of Ministers (2010), 100, 114–118. 112

IACtHR, Yakye Axa (note 14), para. 146.

113

Ibid., paras. 146, 147, and see supra, proposition 10.

114

Ibid., para. 148.

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ensure that any resulting restrictions on the property rights of indigenous peoples do not amount to a denial of their survival as an indigenous people.115 Such safeguards should be designed to ensure effective participation and sharing of benefits.116 These safeguards apply where (i) the indigenous people own the resource,117 or (ii) the indigenous people do not own the resource but where the development of that resource will necessarily affect other resources that are essential to that indigenous people.118 In Saramaka the Court developed three safeguards. First, the State has a duty to consult with a view to reaching an agreement with respect to any proposed development or investment plan within the community. Where the project is a large scale project which may have a significant impact, the duty becomes a duty to obtain the free prior informed consent of indigenous people according to their customs and traditions.119 Second, the State must make reasonable benefit sharing arrangements with indigenous people where it proposes to authorise a development that may have the effect of restricting or depriving the peoples of the right to the use and enjoyment of their traditional lands or those natural resources necessary for their survival.120 The Court grounds this safeguard in Article 21 (2) ACHR which provides that no one shall be deprived of property except upon payment of just compensation. There are two reasons for concluding that the Court’s reasoning at this point is unduly deferential to the State. First, it is clear from the context that the Court is referring to resources actually owned by the indigenous people (compensation is only available for the taking of resources that are owned by a person or community). And second, if continued access to such resources is necessary for continued cultural survival one might have thought that this would justify a finding that the State’s taking was unlawful and not simply a finding that the State must pay compensation or enter into a benefit sharing

115

Id., Saramaka (note 14), para. 129, here substituting indigenous for tribal.

116

Ibid., para. 130.

117

In Saramaka this was the case for forest resources, see ibid., paras. 144–154.

118

In Saramaka this was the case for gold mining, see ibid., para. 155 (not owned by the Saramakan people but its exploitation may affect other resource uses). 119

Ibid., paras. 133, 134.

120

Ibid., para. 139.

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agreement.121 The third safeguard that the Court contemplates is that the State must perform a prior environmental and social impact assessment.122

N. Proposition 14: Restitution of Traditional Lands

At least in cases where the right to restitution is recognised in domestic law, (and subject to the conditions outlined below) the indigenous community has the right to restitution of its traditional lands or territories that have been titled by the State to other persons without the community’s consent.123 The State must put in place an effective procedure for communities to claim traditional lands.124 All three of the Court’s restitution cases involve Paraguay. Paraguayan law expressly guarantees indigenous peoples’ right to property125 and provides for replevin. Thus, it is not entirely clear from the decided cases whether the existence of a similar provision in domestic law is a necessary element of establishing a right to restitution. However, in the most recent case, Xákmok Kásek, the Court remarks that the community has “the right to recover” the lands in question “in keeping with the case law of this Court and Paraguayan domestic law.”126 While this is hardly definitive (since the Court was in a position to rely upon either basis) it does suggest that the Court did not believe that domestic law is dispositive of the issue; and clearly (as discussed infra, in proposition 15) the Court did not believe that it was bound by the parameters of the duty to make restitution as developed in domestic law. The relevant traditional territory “is not the territory belonging to the Community’s ancestors but to the [present] Community itself”127 but it is not clear that the right to restitution extends to all the traditional lands of the community wrongfully 121 But perhaps the answer is that in such a case the community would have the right to withhold its consent as per safeguard 1. 122

IACtHR, Saramaka (note 14), paras. 129, 148–152.

123

Id., Xákmok Kásek (note 14); id., Yakye Axa (note 14); id., Sawhoyamaxa (note 14).

124

Id., Yakye Axa (note 14), para. 96.

125

The relevant provisions are set out in ibid., paras. 74–77; id., Xákmok Kásek (note 14), paras. 41, 110–111. 126

Id., Xákmok Kásek (note 14), para. 111.

127

Ibid., para. 95.

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alienated by the State.128 In Xákmok Kásek the community emphasised that it was only claiming restitution of a small part of its traditional territory and in its ruling the Court confirmed that the lands were traditional lands and that these particular lands “are the most suitable” for settlement by the community.129 The Court rejected the State’s contention that the existing community lands (1,500 ha) were adequate for two reasons. First, this would not meet the minimum standard established by domestic law, and second, experts suggested that the minimum standard might not be enough to carry out traditional activities.130 In Xákmok Kásek the Court commented that the lands in question were the “most suitable for its settlement”131 in response to the State’s contention that it could fulfil its responsibilities by granting alternative lands to the community to satisfy its needs.132 This suggests that, at least in the first instance, it is open to the community to identify the lands for which it seeks restitution. Further, unless the State is able to show that the community lacks connection with the land or that the lands are otherwise unsuitable the Court will require the State to defer to the community’s assessment of its interest.133 If the State wishes to propose alternative lands it must at least show that such lands have “certain ‘agro-ecological aptitudes’.”134

128

The State’s argument that if the court granted the community’s request the sins of the past would be visited on the present generation leading to the “absurd situation in which the whole country could be claimed by indigenous peoples,” see id., Sawhoyamxa (note 14), para. 125. 129

Id., Xákmok Kásek (note 14), paras. 90–106.

130

Ibid., para. 120.

131

What did the Court mean by “suitable”? The discussion suggests that the community thought that the lands were suitable because of connections with the past (cemeteries) but also with the present “those lands are more amendable for living” and the future “there is greater biological diversity to allow for supporting the family,” ibid., para. 105. Experts also testified that “the lands were appropriate and suitable for the development of the Community,” ibid., para. 103. On the past, present and future continuums see Martin Scheinin, The Rights of an Individual and a People: towards a Nordic Sámi Convention, JIPR 3 (2007), 40, 45–48. 132

IACtHR, Xákmok Kásek (note 14), para. 91.

133

At least this is one reading of the relevant test. Elsewhere, the Court uses language that seems to suggest that the indigenous community must establish that the lands for which restitution is claimed “is the optimal traditional land” (ibid., paras. 121, 122) but this seems far too demanding and inconsistent with other passages referred to above. 134 Ibid., para. 118 (‘certain’ might be understood as ‘similar’); and arguably this alone should not be adequate if the lands proposed for restoration were selected for spiritual reasons rather than productive reasons.

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The requirement for an effective procedure is based upon Article 25 ACHR. In Yakye Axe the Court held that there was no effective procedure for recovery of lands if lands can only be acquired by agreement or expropriation and if the State refuses (as in all three of the Paraguay cases) to expropriate lands if those lands are being put to productive use.135

O. Proposition 15: Prerequisite for a Restitution Claim

A community does not have to be able to establish present exclusive possession in order to maintain a claim to restitution of its traditional lands.136 But the community must be able to establish a unique relationship with the land based upon spiritual and or physical connections and that such relationship is possible (i.e. “not blocked by factors outside their control”).137 In Xákmok Kásek the Court observed that a community might establish its relationship to the land in a number of ways including “traditional presence or use via spiritual or ceremonial ties; settlements or sporadic farming; hunting, fishing, or seasonal or sporadic gathering; use of natural resources tied to customs; and any other element characteristic of a culture.”138 The Court understands that it might be difficult to continue these activities on lands titled to others and understands therefore that such activities might be carried out secretly and might be “seriously limited.”139 It appears that by “factors outside their control” that preclude use the Court has in mind historical factors that destroyed connection with the land rather than contemporaneous activities. Thus, in Xákmok Kásek the Court noted that the creation of nature reserve in part of the area claimed “completely prevented” pursuit of traditional activities but the Court did not conclude that this precluded a claim to recover 135

Id., Yakye Axa (note 14), paras. 97–98 and noting ibid., paras. 99–104, that this was also a breach of Arts. 1 (1) and 2. 136

Id., Sawhoyamxa (note 14), para. 128.

137

Id., Xákmok Kásek (note 14), paras. 112, 113.

138

Ibid.

139

Ibid., para. 114. The point about secrecy is important given that domestic rules dealing with prescriptive titles by adverse possession typically require that such possession be open and notorious. See e.g., Bruce H. Ziff, Principles of Property Law (5th ed. 2010), 142: “The occupation must be open and notorious and not clandestine.” The point is not completely analogous since in these cases the community is trying to show continued evidence of connection; not that it has (newly) acquired rights against the registered owner.

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lost lands.140 Similarly, in Sawhowyamaxa the Court suggested that where an indigenous community is precluded by other reasons beyond its control (e.g. acts of violence or threats) from exercising traditional activities “restitution rights shall be deemed to survive until said hindrances disappear.”141

P. Proposition 16: Timely Resolution

The State must resolve applications for the restitution of traditional lands with due diligence and within a reasonable period of time.142 In the jurisprudence of the Court, the due diligence obligation is part of the obligation under Article 21 whereas the duty to resolve claims in a reasonable period of time is based on Article 8 (1) ACHR.143 In Xákmok Kásek the Court found the State to be in breach of both obligations and for similar reasons. Specifically in relation to the absence of due diligence the Court referred to the total time that had elapsed since the community’s application was first made, 1990. The Court considered the fact that there were periods of inactivity and that such activity as there was always seemed to be initiated by somebody other than the State (the community or the private land owner), and the fact that the State placed too much emphasis on proceeding by way of negotiations and consensus.144

Q. Proposition 17: Restitution of Lands Held by Third Parties

The State cannot refuse to make restitution simply on the basis (separately or cumulatively) that: (a) the lands are titled to a third party, or (b) that the lands are being put to productive use.145 Pending restitution the lands must be protected. 140

IACtHR, Xákmok Kásek (note 14), paras. 115–116. The nature reserve in question was created in 2008 (after the petition had been filed) and arguably illegal (ibid., para. 81). 141

Id., Sawhoyamaxa (note 14), para. 132.

142

Id., Xákmok Kásek (note 14), paras. 127–138.

143

Ibid.

144

Ibid.

145

This proposition is stated most definitively in the reparation part of the judgment, see ibid., paras. 284, 286, but see also id., Sawhoyamaxa (note 14), paras. 104–108, 139.

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The Court has emphasised this conclusion in each of the three Paraguay claims basing itself variously on Articles 21, 25 (the right to effective recourse), and 1 (1) ACHR (the duty to respect and guarantee rights without discrimination).146 In both Xákmok Kásek and Sawhoyamaxa147 the Court noted that to rely on productive use as a reason for denying restitution was to look “at the indigenous question exclusively from the agrarian perspective […] which is insufficient considering the unique characteristics of these peoples.”148 It follows that the State will, in appropriate cases, be required to expropriate the titled lands of third parties in order to make restitution.149 Pending completion of expropriation and re-titling procedures the State must take measures much as with respect to traditional lands not titled to a third party to ensure the protection of the land, to ensure for example that it is not deforested and that no irreparable damage is done to the natural resources found there.150

R. Proposition 18: Provision of Alternative Land

Where, for objective and well founded reasons, the State decides to prefer a private party’s right to property over the community’s right to restitution it must provide alternative lands within the traditional territory of the community,151 and “chosen by means of consensus with the community.”152 The jurisprudence establishes a hierarchy which follows that of ILO C169:153 preferred lands, alternative lands and ultimately monetary compensation. Where the 146

See on this id., Xákmok Kásek (note 14), paras. 265–275.

147

But less explicitly id., Sahhoyamaxa (note 14), paras. 104, 139, and even less explicitly id., Yakye Axa (note 14), paras. 94–96. 148 Id., Xákmok Kásek (note 14), para. 146. The Court seemingly agreed as well with the community’s similar contentions that the State was taking a mercantilist view of land and property which effectively nullified Paraguay’s constitutional view of itself as a multicultural and multi-ethnic State (ibid., para. 148); see also the Commission’s arguments reported ibid., para. 265, in the context of Art. 1 (1) and to the effect that provisions of Paraguayan law “privilege the protection of the right to ‘reasonably productive’ private property over the protection of the territorial rights of an indigenous population”. 149

Id., Xákmok Kásek (note 14), para. 284.

150

Ibid., para. 291. The analogy in domestic law is to the law of waste.

151

IACtHR, Sawhoyamaxa (note 14), paras. 135, 212; id., Xákmok Kásek (note 14), para. 286.

152

Id., Yakye Axa (note 14), paras. 151, 217; id., Sawhoyamxa (note 14), para. 212.

153

Pentassuglia (note 1), 172, 177; IACtHR, Yakye Axa (note 14), paras. 149–151; Art. 16 ILO C169.

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State pursues the option of alternative lands it must do so with the participation and concurrence of the community. But it is not for the Court in the first instance to decide in any particular case whether the indigenous community’s rights should prevail over those of private owners; such a power is vested in the State. The Court’s only authority is to ensure that in exercising this power the State observes the rights of indigenous communities.154 The antiquity of the settler title is not, in and of itself, “an objective and reasoned ground” for preferring a settler title over an indigenous claim to restitution “otherwise, restitution rights become meaningless.”155 Similar reasoning applies to settler titles protected by bilateral investment treaties.156

S. Conclusions

These are the main propositions in relation to the land and resource rights of indigenous people that can be derived from the jurisprudence of the IACtHR. The propositions cover the rights bearers, the recognition of indigenous lands, the duty to provide effective protection, the nature of an indigenous resource interest, and the right to restitution. Two additional comments seem warranted. The first is to draw attention to an area that is not much discussed in the Court’s decisions and that is the matter of ownership or title versus use rights. This is an important distinction in both ILO C169 and in the domestic jurisprudence of many States and in some cases is used by the State to recognise a non-exclusive use right rather than an exclusive title. Ostensibly, this distinction might have been important in at least some of the cases since the evidence that was led suggested that the peoples concerned were traditionally migratory in the sense of following a seasonal round.157 However, at no point does the Court suggest that such use should be translated in domestic law as a set of ‘use rights’ 154

IACtHR, Sawhoyamaxa (note 14), para. 136.

155

Ibid., para. 138.

156

Ibid., para. 140.

157

Id., Xákmok Kásek (note 14), para. 90; id., Yakye Axa (note 14), paras. 50.3, 50.4; id., Sawhoyamaxa (note 14), para. 73.2: “The economy of the indigenous people of the Chaco was mainly based on hunting, fishing and gathering, and therefore, they had to roam their lands to make use of nature inasmuch as the season and their cultural technology allowed them to, wherefore they kept moving and occupied a very large area of territory”.

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rather than as ‘title’.158 Second, the Court’s assessment of the nature of an indigenous property interest has become increasingly sophisticated over time and more respectful of the different forms of connection to land that indigenous peoples might have. The Court has also identified systemic and culturally biased obstacles that stand in the way of communities seeking to title and protect their land rights. The Paraguayan restitution cases provide the best example of the Court’s enhanced understanding of the difficulties. In Yakye Axa, the first case, the Court identifies that the State fails to make restitution because of defects in the restitution laws which effectively preclude expropriation where the lands are put to effective use.159 This is characterised as a breach of Article 25 rather than Article 21 ACHR. In Sawhoyamxa the Court recognises that the bias in favour of production represents a failure to take into account what the lands mean to indigenous people.160 And in Xákmok Kásek the Court recognises the full cultural importance of land161 while emphasising that the State’s focus on productive uses of land violates not only the community’s right to property but also constitutes “discriminatory treatment that produces social exclusion.”162

IV. Analysis of the Land and Water Provisions of the Draft Nordic Saami Convention in Light of the Jurisprudence of the IACtHR This part analyses selected provisions of the dNSC in light of the jurisprudence of the IACtHR. As indicated in part one, the draft Convention contains a group of seven articles expressly addressing Saami rights to land and water. But it is also important to acknowledge that the draft Convention has several other provisions that touch on land and resource rights including provisions in the preamble, the general provision on self determination (Article 3) and the provisions of Chapter V dealing with Saami livelihoods. In addition, other provisions of the draft Convention which make no 158 That said, it must be recognised that the community was not claiming restitution of its entire territory. 159

IACtHR, Yakye Axa (note 14), paras. 97–98.

160

Id., Sawhoyamaxa (note 14), para. 104.

161

Id., Xákmok Kásek (note 14), paras. 174–175.

162

Ibid., para. 149, and see supra, the discussion of proposition 17.

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explicit reference to land and resources may also be thought relevant. Especially notable in this context is Article 9 dealing with Saami legal customs since such customs might be expected to address land and resource issues including ideas of ownership.163 Accordingly, this part examines first the general provisions that touch on land and resource questions before moving to the contents of Chapter IV. The discussion of the general provisions begins with the preamble.

A. The Preamble

The preamble is divided into two parts. The first part consists of a series of affirmations by the three governments. Important aspects here are the affirmations “that the Saami people has the right of self determination” and “that lands and waters constitute the foundation for the Saami culture and that hence, the Saami must have access to such.” While a preamble typically does not itself create legal obligations these affirmatory and declaratory provisions are not without legal significance because they declare the law as understood by the three States. The same cannot be said for the second group of preambular provisions since these provisions are expressed by the contracting States to represent their understanding of the visions and expectations of the three Saami parliaments. These provisions inter alia (again focusing on the land and resources issues) see the Convention as a renewal of Saami rights “established through historical use of land […] codified in the Lapp Codicil of 1751” and that the parliaments “particularly emphasise that the Saami have rights to the land and water areas that constitute the Saami people’s historical homeland, as well as to natural resources in those.” This second group of provisions expresses a clearer view of the legal status of Saami land rights (the Saami have “rights” to land and water and natural resources) than that embedded in the first group of recitals (viz. “the Saami must have access to lands and waters” – and no mention of natural resources here). However, the overall weight of the second set of recitals is seriously weakened by the fact that they are expressed as the States’ understanding of the aspirations of the Saami parliaments – not the States’ legal understanding of the status of Saami land and resource rights. 163 For discussion in English of Saami customary norms in relation to land and resources see Svensson (note 24); Åhrén (note 29); Elina Helander, Land and Saami Traditional Rights, in: Tom G. Svensson (ed.), On Customary Law and the Saami Rights Process in Norway (1999), 146. It is acknowledged that there is a much richer literature in both Norwegian and Saami.

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B. Self Determination: The Resource Dimension

The next explicit reference to land or resource rights is the provision dealing with the right to self-determination which acknowledges that the Saami have a right of self-determination in accordance with international law, and to the extent that it follows from such a right “the right to dispose, to their own benefit, […] its own natural resources.”164 This carefully drafted provision confirms that the Saami are entitled to the same self-determination rights as other peoples. It is a crucially important statement of principle but it does little to operationalise the resource dimension of the right of self-determination. It does not, for example, assist in determining which resources belong to Saami. And, given the reference to some of the elements of common Article 1 ICCPR/ICESCR, it is perhaps surprising that the text (either here or Chapter V on Saami livelihoods) does not also recite that the Saami may not be deprived of their means of subsistence.165 While this negative entitlement does not loom large in the jurisprudence of the IACtHR,166 it is implicit in the rights infringement threshold established in Article 27 ICCPR.167 That standard – “no person may be deprived of the means of subsistence” – may not be high, but it does provide a minimum objective entitlement and may support an entitlement to restitution. This is especially the case where a community has inadequate access to lands because of past dispossessions or perhaps in situations where the assertion of competing rights by

164

Art. 3 dNSC.

165

International Covenant on Economic, Social and Cultural Rights, 19 December 1966, UNTS 993, 3. But in this it is consistent with Art. 3 UN Declaration, although as Åhrén (note 22), 16 footnote 23, notes the dNSC does contain an explicit reference to resources unlike Art. 3 UN Declaration. Saami livelihoods are addressed further in Chapter V with specific reference to reindeer husbandry as a Saami livelihood that shall enjoy special legal protection (Art. 41). 166 See in the case of forcible exclusion, IACtHR, Moiwana (note 14), and also the restitution cases, id., Yakye Axa (note 14), and supra, discussion of proposition 10. 167 Art. 27 ICCPR provides that minorities “shall not be denied the right […] to enjoy their own culture.” Several decisions of the CCPR address this threshold including the Länsman decisions: I. Länsman et al. v. Finland, Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (1994); J. Länsman et al. v. Finland, Communication No. 671/1995 UN Doc. CCPR/C/58/D/671/1995 (1996); J. Länsman et al. v. Finland, Communication No. 1023/2001, UN Doc. CCPR/C/83/D/1023/2001 (2005). The CCPR’s General Comment No. 23, UN Doc. CCPR/C/21/Rev.1/Add.5 (1994), para. 6.1., emphasises that the State may owe positive obligations as well as the duty not to deny an indigenous member of a minority access to culture. Art. 33 dNSC offers a more positive reading of a State’s obligation noting that a State’s responsibilities in relation to “material culture” extend to ensuring that “Saami are provided with the necessary commercial and economic conditions to secure and develop their culture”.

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settlers denies indigenous people access to grazing areas to which they have customarily had access.168

C. Saami Legal Customs

Article 9 on Saami legal customs does not speak directly of Saami land and resource rights but it is surely important in establishing the existence of such rights:169 The states shall show due respect for the Saami people’s conceptions of law, legal traditions and customs. […] [T]he states shall, when elaborating legislation in areas where there might exist relevant Saami legal customs, particularly investigate whether such customs exist, and if so, consider whether these customs should be afforded protection or in other manners be reflected in the national legislation. Due consideration shall also be paid to Saami legal customs in the application of law.

Viewed in light of the IACtHR’s jurisprudence this provision does not seem very powerful. In the IACtHR, the recognition of indigenous customary property laws and indigenous conceptualisations of relationships to land is a central element in establishing the connection to land that engages the State’s duty to delimit, demarcate and title.170 By contrast, Saami customary law seems to play a more peripheral role in the draft Convention. The first paragraph calls upon the States to show “due respect” for Saami conceptions of law, legal traditions and customs. It is not clear

168

See e.g. the fact pattern that lies at the heart of European Court of Human Rights (ECtHR), Handölsdalen Sami Village v. Sweden, Judgment of 30 March 2010, available via: http://www.echr.coe. int/ECHR/EN/hudoc (accessed on 18 November 2011). 169

Reference may also be made to Art. 23 dealing with Saami language rights. Para. 2 refers specifically to the right of the Saami to “decide and retain geographical names” and to have such names “publicly acknowledged.” In the jurisprudence of the IACtHR naming may be evidence of: (1) use and occupation in accordance with customary norms thereby supporting an indigenous title, see e.g. supra, proposition 2 and IACtHR, Yakye Axa (note 14), para. 50.4, and (2) continuing connection with territory thereby supporting a right to restitution, ibid. Åhrén (note 22), 18 footnote 36, comments that the provision is arguably misplaced and should have been co-located with the self-determination provision of the dNSC. Another general provision that is of interest in the land and resource context is Art. 16 (2) which provides that the States shall not “adopt or permit measures that may significantly damage the basic conditions for Saami culture, livelihoods or society, unless consented to by the Saami parliament concerned.” Koivurova, Draft (note 28), 125, acknowledges that the commentary to Art. 16 contemplates that this might restrict the State’s right to expropriate in particular cases. 170

See supra, proposition 2.

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what this means.171 Respect must be something less than ‘give effect to’; and to the extent that it is something less than ‘give effect to’, it implies that such customs and norms are something less than ‘law’.172 This impression is confirmed by the second paragraph (designed to operationalise the first paragraph (“pursuant to”)) which instructs States when legislating in an area to consider whether Saami customs “should be afforded protection or in other manner be reflected in the national legislation.” The overall impression created here is that such norms will not be given legal effect unless and until expressly incorporated into the national legal system. This will occur on a case-by-case process of recognition rather than on the basis of existing law or through the incorporation of the draft Convention into domestic law as contemplated by Article 46 dNSC. In other words, the recognition contemplated by Article 9 is both limited and none self-implementing. Åhrén acknowledges that Article 9 is disappointing and in doing so connects Article 9 back with the right of self determination. Åhrén argues that Saami customary law and State statute law are entitled to the same status and hence it should not be “reasonably possible to argue that one of the legal systems should per se be subordinate to the other.” Indeed, to take that position “is directly contrary to accepting that two peoples today sharing the same territory both have the right to self determination.”173 Åhrén’s critique is consonant with the jurisprudence of the IACtHR.174

171

That said the term ‘due’ is precisely the type of open-textured term that permits a broader reading by drawing upon the language of the balance of the dNSC and general principles of international human rights law. 172

Agreeing Koivurova, Draft (note 28), 117, observing that the provision “does not place a mandatory obligation on [Nordic States] to take these conceptions of law, legal traditions and customs into account – but only consider this possibility […].” Nevertheless, Koivurova views the provision in a positive light. Åhrén (note 22), 18–19, is less positive and indeed suggests that it is an important weakness in the draft that the Sami members of the Expert Group were forced to accept as a compromise. 173

Ibid., 19; and suggesting as well that there is an internal contradiction between the Expert Group’s position on self determination and the position on respect for customary laws. See also Ahrén’s similar comment some years earlier in id. (note 29), 64. 174 For another Nordic author emphasising the crucial importance of recognising custom as an independent normative order see Svensson (note 24), esp. 98, 102. This may suggest that there is something missing from the Preamble i.e. the recognition of the pluralist nature of Nordic societies and perhaps specifically ideas of property.

266 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 D. Chapter IV

The next sections examine in some detail Chapter IV of the draft Convention entitled ‘Saami right to land and water’ cross referencing at the same time some of the related provisions in Chapter V dealing with Saami livelihoods. An overview of Chapter IV is provided, and then a more detailed analysis interspersed with commentary in light of the IACtHR’s jurisprudence. Chapter IV comprises seven articles (Articles 34–40). Article 34 deals with the recognition of Saami ownership and use rights while Article 35 deals with the protection of those rights. Articles 36 and 37 are also paired together; Article 36 deals with the utilisation of natural resources and Article 37 with Saami rights to compensation and profit sharing as a result of resource exploitation. Article 38 extends the provisions on ownership, protection and resources to fjords and coastal areas and has a special clause dealing with access to quota resources.175 The final two articles are also paired together insofar as they recognise the right of the Saami parliaments to be engaged in the co-determination of the lands and resources of traditional use areas (Article 39) and environmental management of these areas (Article 40). Åhrén confirms that the negotiations on Saami land and resources were the most challenging and difficult for the Expert Group.176 Åhrén characterises these articles as generally drawing “from the corresponding articles in ILO C169” but adapted “to the particular situation of the Saami.”177

1. Article 34: Traditional Use of Land and Water The close link between the dNSC and ILO C169 is immediately observable in the language of the first two paragraphs of Article 34. It proclaims that protracted traditional use of land provides the basis for individual or collective ownership “in accordance with national and international norms” but that, in addition, Saami shall have 175

The article does not give a detailed account of the fjords and coastal rights provisions.

176

Åhrén (note 22), 27.

177

Koivurova, Draft (note 28), 124–126, generally concurs but suggests one important qualification insofar as ILO C169 fundamentally recognises the collective as the property rights bearer whereas Art. 34 recognises that protracted use can form the basis for individual or collective ownership.

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the right to continue to use other areas and resources “without being deemed to be the owners.”178 This bifurcated approach parallels Article 14 cl. 1, 2 ILO C169.179 Examining this text in light of the jurisprudence of the IACtHR prompts three questions or observations. First, apart from the reference to ‘international norms’, the question of ownership (or something less than ownership) seems to be something that is left to be resolved by the non-discriminatory application of domestic law. There is no reference here to ‘use in accordance with customary norms’ and it is doubtful that the qualifier ‘traditional’ can be made to carry that normative weight.180 The reference to international norms is quite opaque. Which norms is this a reference to? It must be a reference to norms on protracted usage but where does one find those norms? International law seems to have more to say about the recognition of pre-existing property systems in the context of colonisation181 than it has to say about whether a national legal system should accord rights to individuals or groups within a society based on protracted usage.182 Absent a clear body of norms to turn to there is little that will serve to discipline the application of national law other than the duty of non-discrimination. Second, and as noted above, the decisions of the IACtHR have not shown any great tendency to endorse the distinction between title and use rights.183 Third, the 178

But again with the qualification, ibid., re the recognition of individual property rights in the dNSC.

179

And for an analysis in the context of Saami in Norway see Graver/Ulfstein (note 111), 348 et seq.

180

Contrast the text of Art. 34 with that of Art. 43 (1) which proclaims that “[t]he right of the Saami to reindeer grazing across national borders is based on custom”; and see also Art. 42 (1) “Reindeer husbandry […] is based on custom and shall enjoy special legal protection”. 181

ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 4 in particular paras. 79–83 rejecting the argument that the Western Sahara was terra nullius at the relevant time. As the Court said (para. 79), lands could only be terrae nullius if they were open to acquisition by the process of “occupation”; territories that were (para. 80) “inhabited by tribes or peoples having a social or political organization were not regarded as terrae nullius”. 182 International law has lots to say about how protracted use prior to a critical date may be important in competing sovereignty claims, see e.g. PCIJ, Legal Status of Eastern Greenland, Judgment of 5 April 1933, Series A/B, No. 53, 160; ICJ, Minquiers and Ecrehos (France v. United Kingdom), Judgment of 17 November 1953, ICJ Reports 1953, 8, but it is not clear that this body of law and norms is relevant to indigenous people establishing a title against the State. International law also has something to say about whether the operation of limitations and prescription legislation (which may shift title from A to B) accords with human rights standards for the protection of A’s property right, see ECtHR [GC], J.A. Pye. (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. United Kingdom, Judgment of 30 August 2007, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 18 November 2011). 183

See supra, text to footnotes 157–158.

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bare claim that continued use should be respected seems, by converting an ‘is’ to an ‘ought’, to conflate facts with norms. Why should Saami traditional use (and here traditional use and not protracted use) be accorded normative weight?184 One possible reason is that it conforms to domestic law rules dealing with the acquisition of use rights over State land or over the lands of a third party. A second possibility is that such use must be accorded normative weight because it is based on and in accord with Saami customary norms which have not been overridden by settler titles or the norms of the Settler State.185 There is a hint of this second approach in Article 34 (3) which requires those responsible for evaluating Saami traditional use to “have regard to what constitutes traditional Saami use” (this must require reference to the internal perspective of the Saami as informed by Saami customs and norms) and taking account of the reality that nomadic usage rarely leaves permanent physical traces. However, and as noted in the previous paragraph this can hardly be read as a strong endorsement of the importance of customary law. In examining the jurisprudence of the IACtHR it is notable that the Court assesses the legal implications of the physical use of land by indigenous people in a broader context and with a somewhat different question in mind. The IACtHR seems to be questioning whether the indigenous people can show a continuing connection with the land and territory that deserves protection. That continuing connection may be based on physical use but it is also informed by cultural and spiritual connections (including obligations) that connect generations across time. Åhrén argues that Article 34 will be of considerable practical importance in arguing Saami title cases since it will oblige “non-Saami Courts to place the burden of proof on Saami parties.” This may be the case, but it does not seem to do anything more. It does not reverse the onus of proof186 nor create a presumption to that effect. 184

Note in this context the descriptive title accorded to the article “traditional use of land and water” rather than say the duty of the State to recognise Saami ownership and use rights. ILO C169 accords titles to the ten different parts of the Convention but does not give titles to specific articles. 185 186

See supra, discussion of Art. 9 dNSC.

I.e. require that the State (or a person claiming from the State) prove its title; on this see the partly dissenting comments of Judge Ziemele inECtHR, Handölsdalen (note 168). For an example of the importance of the burden of proof in a use rights case see Art. 2 Norway’s Reindeer Husbandry Act, which provides that it is the landowner which has the burden of establishing that use of lands for reindeer grazing purposes has been insufficient to establish “immemorial usage.” For discussion see Christina Allard, The Nordic countries’ law on Sámi territorial rights, Arctic Review on Law and Politics 2 (2011, forthcoming), and Øyvind Ravna, The Process of Identifying Land Rights in Parts of

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For example, it does not provide that evidence of use and occupation in accordance with customary norms is evidence of title good against the State unless the State can establish some other basis for its title claim than the extension of sovereignty. The concluding paragraph of Article 34 addresses the right to restitution of property but, as noted in the introduction, it is little more than a marker or a savings clause.187 It does not grapple with the question of whether there is a right to restitution and, if there is such a right, the scope of that right. The jurisprudence of the IACtHR offers some guidance in thinking about these issues. First, the case law suggests that the problem of restitution only arises where the State has titled lands or a resource right to a third party. If there is no third party between the indigenous group and the State, the case is better thought of as triggering the duty to delimit, demarcate and title indigenous lands on the basis of use and occupation in accordance with customary norms. Second, once the exercise of titling lands currently occupied is completed it may still be necessary to assess whether indigenous people have adequate access to lands and resources in a way that meets international standards, such as those imposed by Article 1 and Article 27 ICCPR. In doing so it may be necessary to have some regard to the range of resources available to the indigenous minority as compared to other citizens (i.e. the resource base of an indigenous people should be adequate to offer a range of economic and cultural opportunities and choices similar to those available to other citizens).188 It will also be important to consider whether the titling process adequately protects other connections to territory that may be important to the indigenous community including spiritual and cultural connections. Third, where this last step identifies the need to recognise additional land and resource rights, the legal system of the Settler State needs to be open to the possibility that the interests of third parties may need to be expropriated to provide restitution and meet these additional needs. The State need not and should not provide that this Northern Norway: Does the Finnmark Act Prescribe an Adequate Procedure within the National Law, Polar Law Yearbook 3 (2010), 423, 428 and referring to the Selbu Case (2001) a translation of which is available at: http://www.galdu.org/govat/doc/selbudommen.pdf (accessed on 18 November 2011). 187 188

See supra, text to footnote 22.

This is fairly close to the liberal argument for recognising the rights of minorities and indigenous peoples developed by Will Kymlicka, Liberalism Community and Culture (1989). Kymlicka argues that minorities require a richer resource endowment than others because they have to expend resources to secure their culture, ibid., 187. It is crucial to secure a cultural structure not to preserve or protect a particular (traditional) lifestyle but to provide a context of choice, ibid., 166.

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qualified indigenous right to restitution should necessarily trump the titled settler property interest. Rather it should provide for the weighing of competing interests in a way that takes account of the connections to land and territory that might be adduced by both settler and indigenous interests without according automatic priority to either, explicitly or implicitly.189 In applicable circumstances the State may make good a deficiency in land and resources by providing alternative lands to those identified for restitution by the indigenous people concerned (with the consent of such community). The State may, in the last resort, provide resources in the form of monetary compensation but only so long as the community is not deprived of its (preferred) means of subsistence.190 Article 34 (3)(2) dNSC addresses the balancing of competing interests in the context of situations in which lands may be “used by the Saami in association with other users.” This might encompass cases in which Saami have use rights (e.g. reindeer grazing) in relation to land titled to a third party,191 as well as cases involving State land over which the State has granted resource rights such as logging rights to a third party.192 The text, however, does not offer much guidance. It exhorts each party to have “due regard to each and the nature of the competing rights.” Instead of referring to the types of unique factors connecting indigenous people to land as discussed by the IACtHR the text picks out one Saami use of property for “[p]articular regard in this connection” that is “the interests of reindeer herding Saami.” The phrase, ‘due regard’, for each competing right seems to demand even-handed treatment rather than a treatment that recognises that the Saami interest may be able to make claims based on connection to cosmology, culture and spiritual connections that are simply not available to settler interests.193

189 For example by preferring certain uses or values more closely associated with settler interests and culture. 190 Common Art. 1 (2)(2) ICCPR/ICESCR: “In no case may a people be deprived of its own means of subsistence” (emphasis added). 191

See the fact pattern in ECtHR, Handölsdalen (note 168).

192

See the fact pattern in id., I. Länsman (note 167).

193

See supra, proposition 3, and IACtHR, Xákmok Kásek (note 14), esp. paras. 174–175.

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2. Article 35: Protection of Saami Rights to Land and Water Article 35 requires the Nordic States to take “adequate measures for effective protection of” Article 34 ownership and use rights. The article instructs the States to “identify the land and water areas that the Saami traditionally use.” Viewing this in light of the IACtHR’s jurisprudence, it is notable that in focusing on ‘the duty to identify’ Article 35 specifically addresses only the first of what the IACtHR considers to be a three step process: delimiting, demarcating and titling.194 Second, there is no explicit requirement that this should be a collaborative exercise in which, for example, the State must seek to understand Saami conceptions of land, ownership and territory.195 Indeed Article 35 (2) seems to assume the paradigm of adversarial legal proceedings to settle these issues insofar as it suggests that the Saami shall have access to financial support for such proceedings. Other commentary on the article emphasises that the State may introduce new and efficient measures to assist Saami in establishing their rights to land and waters.196 But if this were the intent, the article seems to send mixed messages. Perhaps the better view is that a bespoke title identification and recognition procedure is simply one option that the State may adopt; it is equally entitled to insist that such claims may be processed through the regular courts provided that such courts provide an effective and timely remedy.197

194 That said the general duty is the duty of effective protection which arguably must extend to demarcating and titling. 195 In practice however, the State may engage in just such a collaborative exercise, see the discussion in Svensson (note 24), 100 et seq., of the launch of a collaborative process in Norway after the Saami Rights Commission failed to discharge its responsibility to inquire into Saami customary rights. See also Åhrén (note 22), 30, describing the procedures that may be followed in each of the three countries to identify traditional Saami areas. 196 Åhrén (note 22), 28. For an example of such a procedure see the process for recognising existing ownership and use rights established under the terms of the Finnmark Act (2005), translation available at: http://www.ub.uio.no/ujur/ulovdata/lov-20050617-085-eng.pdf (accessed on 20 November 2011). The Act creates a Commission to investigate ownership and use of its own motion in a process that seems more inquisitorial than adversarial. For a discussion of the Commission and an appeal body (the Land Tribunal) see Ravna (note 186). 197 ECtHR, Handölsdalen (note 168). In that case the Third Chamber concluded that the proceedings (which were commenced by the landowners against Saami reindeer herders) took an excessive period of time and that therefore there was a breach of Art. 6 (1) ECHR. But of greater interest is ibid., Partly Dissenting Opinion of Judge Ziemele, para. 5, in which she argued that the majority should not have simply accepted as incontestable the fact that the plaintiffs in the domestic proceedings had valid title to the land and that the Saami had the burden of proof to establish their grazing right.

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3. Article 36: Utilisation of Natural Resources and Article 37: Compensation and Share of Profits Articles 36 and 37 address Saami resource rights and it seems useful to address the two articles together considering both the procedural and substantive dimensions. The draft Convention text addresses two substantive rights, ownership and use rights and rights to compensation. Ownership and use rights are addressed in Article 36 (1) and compensation rights in Article 37. Article 36 (2)–(4) addresses procedural rights.

a) Ownership and Use Rights As noted above, the dNSC adopts the ILO C169 approach in recognising both ownership and use rights in relation to land. The draft Convention bases such rights on protracted use. Article 36 (1) applies the same approach to natural resources: “The rights of the Saami to natural resources within such land or water areas that fall within the scope of Article 34.”198 While the reference to Article 34 establishes a method for determining the scope of Saami resource rights (“norms concerning protracted usage”), Article 36 (1) offers additional guidance noting that such rights “shall be afforded special protection” and that “continued access to such natural resources may be a prerequisite for the preservation of traditional Saami knowledge and cultural expressions.”199

198

Given the bifurcated approach of Art. 34, the rights referred to may be either ownership rights or use rights. 199 Protection is the subject matter of Art. 35. In that sense Art. 36 builds on the foundations of both Arts. 34 and 35. The similar term “special protection” or “special legal protection” is also used in Arts. 41 and 42. Art. 41 stipulates that “Saami livelihoods and Saami use of natural resources shall enjoy special protection” by legal or economic means to the extent that they are the foundation of Saami culture. The “particular protection” offered by Art. 36 is contingent the foundational nature of Saami resource rights to culture. Art. 42 requires that special legal protection be extended to reindeer husbandry. See also Art. 15 (1) ILO C169, requiring that indigenous resource rights “shall be specially safeguarded showing,” once again how closely the drafters hewed to the minimum standards of that Convention to which Norway alone is a party.

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b) Compensation Rights Article 37 deals with two distinct interests: the right to compensation and the right to profit sharing.200 Art. 37 (1)(1) deals with the right to compensation for all damage inflicted as a result of State authorised resource activities including mining and other sub-surface resource activities but also forest logging, hydroelectric and wind power plants, construction of roads and recreational housing and military exercise activities and permanent exercise ranges.201 This provision is not linked in any way to a Saami ownership right. Thus it covers not only the damage that may be suffered by Saami as a result of resource activities disrupting access to traditional grazing lands but also any human health impacts that might result from resource activities (e.g. contamination of water supplies or on-site processing activities that cause air pollution). Unlike the right to a share of profit which accrues to “Saami that have traditionally used and continue to use the area concerned,” the right to compensation accrues to “the affected Saami.”202 The duty to compensate is more than just a due diligence obligation. Therefore, the three States will need to create a new cause of action to the extent that existing private or statutory causes of action do not provide the broad right to compensation suggested by this text.203 The jurisprudence of the IACtHR, whether based on the right to property, or the right to life or the right to humane treatment, does not offer a comparable right to compensation in such broad and uncompromising terms. The subject of profit sharing is dealt with by Article 37 (1) and (2). Paragraph 1 focuses on domestic law, Paragraph 2 is a savings clause directed at the international legal order.204 Article 37 (1)(2) suggests that profit sharing is, in the first instance, a matter of domestic law in light of the more general duty not to discriminate. Thus, Paragraph 1 instructs that if the State generally obliges the licensed extractor of natural resources to pay a fee to, or share profits with a landowner, then a similar entitlement 200 This approach also tracks ILO C169 insofar as Art. 15 (2) provides for both: (1) participation in the benefits of mineral resource activities, and (2) compensation for damages. 201

Art. 37, incorporating by reference the language of Art. 36 (2)–(4).

202

Art. 37 (1).

203

James Crawford, Introduction, in: id., (ed.), The International Law Commission’s Articles on State Responsibility (2002), 1, 13: “[D]ifferent primary rules of international law impose different standards ranging from ‘due diligence’ to strict liability”. 204

See supra, text to footnote 22.

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shall be extended to “the Saami that have traditionally used and continue to use the area concerned.” Several conclusions can be drawn from this text. First, while the text defers to national law as a threshold matter it subjects the national law to the discipline and duty not to discriminate. Second, it follows that if the State does not require the resource user to share profits with, or pay fees to, a non-Saami landowner, a Saami landowner or traditional user has no right to a share of profits or any fee. The fall-back here is Article 37 (2) which holds out the possibility that international law may require profit sharing even when not mandated by domestic law. Third, the text does not establish complete parallelism between non-Saami landowners and Saami, or complete parallelism with the bifurcated ownership and use structure of Articles 34 and 36. This is because Article 37 triggers a duty to profit share not only in the case of Saami ownership rights, but also in cases of traditional and continuing use – even if such use rights do not require the State to recognise Saami ownership.

c) Procedural Rights As noted above, Article 36 (2)–(4) deals with the procedural rights afforded to Saami in connection with resource projects. There are two rights bearers for the procedural obligations of the draft Convention: (1) the affected Saami (the same party that holds the right to compensation for damage suffered under Article 37 (1)), and (2) the relevant Saami parliament(s).205

(1) The Affected Saami In the case of the affected Saami, the trigger for procedural obligations is a proposal by a government authority to issue a permit for prospecting or extracting minerals or other subsurface resources, or any decisions related to the use of other natural resources in land and water areas that are either: (1) owned by the Saami, or (2) used by the Saami. The content of the ‘duty’ involves a duty to hold negotiations, and second205

Art. 16 (2) refers to “the Saami parliament concerned” but there are plenty of examples of projects in State A that affect conditions in State B, upstream river projects being simply the most obvious example. See Timo Koivurova, The Case of Vuotos: Interplay Between International, Community and National Environmental Law, Review of European Community & International Environmental Law 13 (2004), 47.

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arily, a duty to obtain the consent of the affected Saami to any government decision where the proposed activity “would make it impossible or substantially more difficult for the Saami to continue to utilize the areas concerned,” provided that such utilisation is essential to the Saami culture. Therefore, there will always be a duty to negotiate. This means that the only triggering threshold for the ‘duty’ to be initiated is a proposal to make a decision. The trigger does not contain a significant harm threshold and the text does not elaborate on the content of the duty to negotiate. One can assume that it must embrace the duty to negotiate in good faith;206 but there are no defined parameters of what is achievable. Is it with a view to identifying whether this is a case that should move to the next step of the procedural obligations? Or does the duty extend to negotiations in relation to possible mitigation measures or even economic benefits (the subject matter of Article 37)? Similarly, while the first trigger and the content of the second duty are clear (the duty to obtain consent), it is less clear who makes the determination: for example, in a case where the two triggers (impossible to utilise and utilisation essential) to the consent regime have been met. Is this a matter on which the parties must agree? If so this may raise other questions. Is there a presumption that the parties can call in aid? Is it the State’s responsibility to make the preliminary determination? Or should there be deference to the Saami assessment of the situation? In the absence of more definitive treatment in the final text it seems likely that the domestic courts of the three States will have to develop a body of jurisprudence on these matters assuming, as contemplated by Article 46, that the provisions of the Convention are made part of domestic law.207

206 Such a duty is grounded in both customary law, ICJ, North Sea Continental Shelf Cases (Germany/Netherlands; Germany/Denmark), Judgment of 20 February 1969, ICJ Reports 1969, 3, Gabčíkovo-Nagymoros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 141, and Art. 26 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). 207 A relevant body of jurisprudence on which Nordic courts might draw is the body of Canadian case law dealing with the government’s duty to consult and accommodate indigenous peoples with respect to proposed government decision-making. The key cases include Supreme Court of Canada, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511; id., Mikisew Cree First Nation v. Canada (Minister of Heritage), [2005] 3 SCR 388; id., Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103; the academic commentary includes Dwight Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009).

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(2) The Saami Parliaments Similar challenges exist with respect to the second rights bearers, the Saami parliaments, although the triggering thresholds differ somewhat. First, there is only a duty to negotiate with the Saami parliament when the matter is such that it falls within Article 16. Article 16 (1) is triggered only in “matters of major importance to the Saami.” To some extent the State will control this gateway but one could imagine that the parties may be able to negotiate protocols on these matters,208 failing which, and as noted above, disagreements as to seriousness or importance might end up before the domestic courts. Articles 36 (2) and 16 (2) contemplate that negotiations do not exhaust the procedural entitlements of the Saami parliaments. In particular, Article 36 (2) contemplates a double veto (e.g. a project that has serious implications for Saami requires the consent of both the affected Saami and the relevant Saami parliament). The threshold for triggering the consent requirement is framed in slightly different ways in Articles 16 (2) and 36 (2). The requirements established by Article 36 (2) are referred to above and on the face of it apply equally to both rights bearers (i.e., the affected Saami) and the Saami parliaments. In sum those requirements are: (1) the resource activity “would make it impossible or substantially more difficult for the Saami to continue to utilize the areas concerned,” and (2) such “utilization is essential to the Saami culture.” The Article 16 consent regime contains its own trigger. Under that regime the Saami parliament’s consent is required where the measure “may significantly damage the basic conditions for Saami culture, Saami livelihoods or society.” It would be advantageous to consider whether these triggers have the same meaning. If they do not, then the applicable principle of interpretation is that in the event of a conflict the more specific rule (in this case the Article 36 rule) will prevail.209

208 See in this context the Procedures for Consultation between State Authorities and The Sami Parliament, adopted in 2005 by the government of Norway and the Norwegian Saami Parliament, translation available at: http://www.regjeringen.no/en/dep/fad/Selected-topics/Sami-policy/ midtspalte/PROCEDURES-FOR-CONSULTATIONS-BETWEEN-STA.html?id=450743 (accessed on 20 November 2011). 209

This rule is not encoded in the VCLT but is a well accepted principle of treaty interpretation and customary law. See, e.g., International Law Commission, Articles on State Responsibility (note 203), Art. 55, Lex specialis, and accompanying commentary (306–308); Anja Lindross, Addressing Norm Conflicts in a Fragmented Legal System: the Doctrine of Lex Specialis, Nordic JIL 74 (2005), 27.

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d) Observations This section offers three observations on these two resource provisions (Articles 36 and 37) in light of the jurisprudence of the IACtHR. First in relation to ownership and use rights with respect to resources, the starting point is analogous in that both regimes contemplate that similar approaches should be taken on both land and natural resources. However, the approaches soon diverge since the dNSC presumes that ownership at least will be the subject matter of Article 37 (1) (i.e. profit sharing) it does not apply to the content of Article 36 (i.e. ownership of resources). Second, the procedural protection rules in both regimes are similar although those arising under the IACtHR are more detailed and prescriptive. The Court has developed three safeguards that will apply when the State is proposing to allow resource developments in indigenous traditional territories. These are: (1) consultation with a view to reaching agreement (with FPIC in the case of a project which may have a significant impact), (2) benefit sharing arrangements and (3) prior environmental and social impact studies. When these safeguards are compared with the draft Convention, the following become evident. First, both approaches suggest that proposed resource developments should always trigger consultations or negotiations and that the threshold in both cases should be low. Second, the threshold for triggering the deeper level of procedural rights (consent, or FPIC) seems lower in the case of IACtHR safeguards approach (significant impact) than in the case of the draft Convention. Third, the benefit sharing rules of the IACtHR apply regardless of what national laws may say about the general rights of landowners to share in the economic benefits associated resource developments on their lands. While the practice of the IACtHR cannot, in itself, establish customary international law it does allow parties to argue that there is already some content in the ‘savings clause’ of Article 37 (2). Fourth, the draft Convention does not impose a specific requirement for environmental impact or social impact assessments (EIAs or SIAs) before projects may proceed in Sami traditional territories. The draft Convention elects to deal with this through the more general language of co-determination in relation to environmental protection and management that we find in Articles 39 and 40 (discussed in the next section). Finally, the IACtHR does not expressly address compensation for damages suffered and indeed does not seem to contemplate a special regime for indigenous lands in this context. The Court, however insists that indigenous people be treated no less

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favourably than others in access to remedies generally available to those who suffer harm as a result of resource activities.

4. Articles 39 and 40: Co-Determination with Respect to Land and Resource Management and Environmental Protection and Management These two articles introduce the term co-determination. This precise term is not a term that has technical meaning in the law relating to indigenous peoples although the term is used in labour relations in at least one Nordic country, Sweden.210 Rather than drawing on that background it seems more pertinent to note the linguistic connections to self-determination and co-management.211 This linguistic connection suggests that these articles are concerned with power-sharing arrangements in relation to the important subject areas of land, resources and the environment as between indigenous people and the State.212 There are significant differences between ‘co-determination’ as used in the draft Convention and ‘co-management’ as generally understood. Co-management typically and crucially involves resource users interacting with governments usually on the basis of rules established by the State (i.e. comanagement and not co-jurisdiction). By contrast, the rights bearers in Articles 39 and 40 are not the resource users or the persons affected but the Saami parliaments. While one might think that co-determination must mean some form of shared rule-making the reference to Article 16 suggests that co-determination must take the form of the negotiation and consent regime described in that article and discussed above. This may limit the scope of co-determination insofar as Article 16 is only triggered with respect to “matters of major importance 210

See e.g. Wolfgang Däubler, Co-Determination: The German Experience, Industrial Law Journal 4 (1975), 218; Klas Levinson, Codetermination in Sweden: Myth and Reality, Economic and Industrial Democracy 21 (2000), 457; Norbert Kluge, Corporate Governance with Co-Determination — A Key Element of the European Social Model, Transfer: European Review of Labour and Research 11 (2005), 163. I am indebted to my colleague Jonnette Watson Hamilton for these references. 211 There is a huge literature on co-management (as between governments and resource users) much of it emphasising the role of indigenous people in resource management. See, e.g., Evelyn Pinkerton (ed.), Co-operative Management of Local Fisheries (1989); Fikret Berkes et al. (eds.), Breaking Ice: Renewable Resource and Ocean Management in the Canadian North (2005). Land claim agreements in northern Canada between indigenous people and the government feature complex co-management arrangements dealing with subject matters such as wildlife, land use planning and environmental impact assessment. For an account see Nigel Bankes, Implementing the Fisheries Provisions of the Nunavut Claim: ReCapturing the Resource?, Journal of Environmental Law and Policy 12 (2003), 141. 212

Anne Julie Semb, Sami Self-Determination in the Making?, Nations and Nationalism 11 (2005), 531.

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to the Saami.” However, one might argue that one of the purposes of Articles 39 and 40 is to establish that the subject matters covered by these two articles are deemed always to be of major importance to the Saami and as such will always trigger Article 16 consultations. There are few direct parallels to be drawn between the draft Convention and the case law of the IACtHR in dealing with the issues of co-determination and shared decision-making.213 This is in part due to the property focus of the cases brought before the Court but in part due to the case-based nature of the rules developed by the Court which are designed to resolve concrete cases and disputes rather than to describe a shared decision-making regime for the future. Thus, while the Court may be prepared to insist that the State conducts project-based EIAs and SIAs as part of a series of safeguards it will not prescribe shared rule-making for indigenous territories. This would reach beyond the ambit of property rights protections and beyond the supervisory role of an international court.214 That said there may be parallels at a more abstract level. Pentassuglia notes that the idea of effective participation is a key theme within the jurisprudence of the IACtHR and effective participation is clearly a key value informing ideas of co-determination and co-management. More specifically, the safeguards formulated by the Court emphasise participation. And as noted in proposition 9 the Court has also emphasised the importance of participation in relation to government decision making where government decisions may affect traditional lands and activities – but in each case the rights bearers would be the community affected rather than an entity like the Saami parliament.

V. General Conclusions This paper had two objectives, first to provide an account of the jurisprudence of the IACtHR as it related to indigenous land and resources rights and second to provide an appraisal of the draft Nordic Saami Convention in light of that account. It remains perhaps to identify some of the most important differences. Two differences are highlighted: (1) the role of custom, and (2) restitution. 213 214

Pentassuglia (note 1), 176–177.

This highlights the reality that some issues are better dealt with in the forum of negotiations rather than through litigation. For interesting observations on different strategic procedures (described as pre-legislative inquiries, negotiation and legal testing in court) for recognising customary laws see Svensson (note 24), 108–112.

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The recognition of customary norms and practices forms an essential part of the Court’s property jurisprudence. The Court recognises that possession of traditional lands in accordance with customary norms provides an indigenous community with a property interest which is protected by Article 21 ACHR. Customary norms are also relevant in identifying the rights holders as well as both the geographical area of the traditional territory and also the associated resource rights. In general, the Court recognises custom as an important normative force that the State must accommodate in the way in which it conceptualises and protects property. This allows the Court to develop a pluralistic account of property which is sensitive to cultural and spiritual values as well as productive values. By contrast custom assumes a much more ambiguous and limited role in the terms of the draft Convention and as a result the vision of property that the draft Convention projects is more statist and less pluralist. The draft Convention has very little to say on the question of restitution of lands preferring to leave this issue, by means of a savings clause (Article 34 (4)), to general international law. By contrast, the Court has developed a number of principles to guide claims to restitution. These principles do not answer all the relevant questions. In particular the cases do not resolve the question of when the right to restitution arises or the territorial scope of such a right. In each of the three restitution cases before the Court, the facts suggest that the plaintiff communities in question were almost completely deprived of access to traditional lands. As such it is possible to surmise that these are communities that are deprived of their preferred means of subsistence as well as access to the material and spiritual elements of culture that are connected with land. The cases do not answer the difficult question of the scope of the right to restitution in a case where a community has access to some (but not all) of the land and resources of its traditional territories. But in those easier (legally that is) cases the jurisprudence of the Court supports a right to restitution according to a hierarchical order (preferred lands, alternative lands, financial compensation). In giving effect to those preferences the Court recognises that the State may have to expropriate settler titles. In making that decision (to expropriate or not) the State must accord weight to the special significance of land and territory to the peoples concerned. A blanket refusal to expropriate is not permissible. It may not be possible to negotiate an agreed set of restitution provisions for the Nordic Saami Convention but the experience of the IACtHR suggests that it may still be possible to breathe some content into the savings clause currently found in Article 34 (4).

The Arctic Council at 15 Years: Edging Forward in a Sea of Governance Challenges DAVID L. VANDERZWAAG(

ABSTRACT: With the impacts of climate change on the Arctic, including the thinning and decreasing extent of sea ice and projected dramatic increases in access to and development of regional resources, the adequacy of existing governance arrangements for the Arctic is increasingly being questioned. Through a two-part format, this article reviews how the Arctic Council is faring as the key regional governance institution for the Arctic since being established pursuant to a Declaration adopted by the eight Arctic States in September 1996. How the Council has edged forward the regional cooperation agenda through its six working groups and Ministerial meetings is first described. The recent governance innovation of establishing task forces to negotiate regional instruments on search and rescue and emergency preparedness and response is highlighted. The paper then turns to provide an overview of key challenges confronting the Arctic Council: fully implementing existing commitments and recommendations; completing the Arctic Council’s restructuring; addressing future governance of ocean areas beyond national jurisdiction in the Arctic; and strengthening the ‘Arctic voice’ in international fora. KEYWORDS: arctic, regional cooperation, indigenous organisations, pollutants, ocean governance, climate change

I. Introduction Evolving from the 1991 Arctic Environmental Protection Strategy (AEPS) which focused on addressing pollutants and environmental protection in the Arctic,1 the

(

Canada Research Chair (Tier 1) in Ocean Law and Governance and Professor, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University. The research support of the Social Sciences and Humanities Research Council of Canada (SSHRC) is gratefully acknowledged under the research project, “Tracking and Envisioning the Future of Arctic Ocean Governance”. 1 For discussions of the AEPS and its history, see David VanderZwaag/Rob Huebert/Stacey Ferrara, The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters, Denver Journal of International

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Arctic Council was established as a regional cooperation forum pursuant to a Declaration adopted in Ottawa, September 1996.2 The Declaration set out an institutional structure which remains largely intact today. The Council consists of eight Member States,3 it is innovative by including indigenous organisations as Permanent Participants,4 and also includes observers.5 The Council is charged with promoting cooperation on common Arctic issues including issues of sustainable development,6 but security matters are excluded from the scope of the Council’s mandate.7 The four original working groups under the AEPS continued under the auspices of the Arctic Council8 with two additional working groups subsequently added namely: the Sustainable Development Working Group (SDWG),9 and the Arctic Contaminants Action Program (ACAP).10 The Council has depended on voluntary financial and

Law and Policy 30 (2002), 131, 142–153; and Timo Koivurova, Limits and Possibilities of the Arctic Council in a Rapidly Changing Scene of Arctic Governance, Polar Record 46 (2010), 146, 146–148. 2 Joint Communiqué and Declaration on the Establishment of the Arctic Council, 19 September 1996, reprinted in: ILM 35 (1996), 1382. 3 Members of the Council are: Canada, Denmark/Greenland, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States of America. 4 Six indigenous organisations presently have permanent participant status: Aleut International Association, Arctic Athabaskan Council, Gwich’ in Council International, Inuit Circumpolar Council, Russian Association of Indigenous Peoples of the North (RAIPON) and the Saami Council, see Arctic Council, Permanent Participants, available at: http://www.arctic-council.org/index.php/en/about-us/ permanentparticipants (accessed on 22 November 2011). 5 Observer status in the Arctic Council is open to non-Arctic States, inter-governmental and interparliamentary organisations, and non-governmental organisations, Arctic Council Declaration (note 2), para. 3. Current observer States include: France, Germany, Netherlands, Poland, Spain and the United Kingdom, see Arctic Council, Non-Arctic States, available at: http://www.arctic-council.org/index. php/en/about-us/partners-links (accessed on 22 November 2011). 6

Arctic Council Declaration (note 2), para. 1 (a).

7

Ibid., footnote 1.

8

They are: the Arctic Monitoring and Assessment Programme (AMAP), Conservation of Arctic Flora and Fauna (CAFF), Protection of the Arctic Marine Environment (PAME) and Emergency Prevention, Preparedness and Response (EPPR); ibid., para. 1 (b). 9 The SDWG, building upon an AEPS Task Force on Sustainable Development and Utilization, was established in 1998, Iqaluit Declaration on the Occasion of the First Ministerial Meeting of the Arctic Council, Iqaluit, Canada, 17–18 September 1998, para. 9, available via: http://www.arctic-council. org/index.php/en/about/documents/category/5-declarations# (accessed on 22 November 2011). 10 ACAP was formally endorsed as a working group at the October 2006 Ministerial meeting, Salekhard Declaration on the Occasion of the Tenth Anniversary of the Arctic Council and the Fifth AC Ministerial Meeting, 26 October 2006, Salekhard, Russia 6, available via: http://www.arctic-council. org/index.php/en/about/documents/category/5-declarations# (accessed on 22 November 2011).

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human resource contributions from Member States for carrying out projects and holding meetings.11 With accelerating thinning and loss of sea ice linked to climate change12 and projected commercial developments on numerous fronts including oil and gas, shipping, tourism and mining,13 the adequacy of the Arctic Council has come under intensified scrutiny. Whether a ‘soft law’ regional forum largely dedicated to monitoring the Arctic environment and undertaking projects and assessments is up to the task of meeting the mounting challenges posed by climate change and globalisation has been questioned by various scholars and non-governmental organisations.14 Numerous calls have been made for further strengthened Arctic cooperation through one or more legally binding agreements with various options suggested.15 This includes a framework treaty formalising the existing Arctic Council arrangements,16 a

11

Koivurova (note 1), 148.

12

Scientific predictions as to when the Arctic Ocean may be ice-free in summer have varied, as early as 2013 or as late as 2100, with one recent estimate being by 2030, U.S. National Snow and Ice Data Center, Frequently Asked Questions about Arctic Sea Ice, available at: http://nsidc.org/arcticseaice news/faq.html#really_declining (accessed on 22 November 2011); and The Guardian, 11 July 2011, Arctic May Be Ice-Free Within 30 Years: Data Showing Dramatic Sea Ice Melt Suggests Warming at North Pole Is Speeding Up, available at: http://www.guardian.co.uk/environment/2011/jul/11/arcticice-free?INTCMP=SRCH (accessed 22 November 2011). 13

Lawson W. Brigham, Thinking about the Arctic’s Future: Scenarios for 2040, The Futurist (September–October 2007), 27. 14

For views emphasising the need to fully implement existing international commitments rather than developing a binding legal regime for the Arctic, see Alf Håkon Hoel, Do We Need a New Legal Regime for the Arctic Ocean?, The International Journal of Marine and Coastal Law 24 (2009), 443; Olav Schram Stokke, The Law of the Sea Convention and the Idea of a Binding Regime for the Arctic Marine Environment, Paper prepared for the 7th Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, 2–4 August 2006, available at: http://www.fni.no/doc&pdf/oss-2006-arctic-parlamentarians. pdf (accessed on 22 November 2011); Oran R. Young, Arctic Governance: Preparing for the Next Phase, article commissioned by the Standing Committee of Parliamentarians of the Arctic Region, June 2002, available at: http://www.arcticparl.org/files/static/conf5_scpar2002.pdf (accessed on 22 November 2011). 15 For a review of options, see Linda Nowlan, Arctic Legal Regime for Environmental Protection, IUCN Environmental Policy and Law Paper No. 44 (2001), 58. 16

Timo Koivurova, Alternatives for an Arctic Treaty – Evaluation and a new proposal, Review of European Community and International Environmental Law (RECIEL) 17 (2008), 14.

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regional seas agreement with annexes or protocols,17 and even a multilateral agreement dedicated to protecting the Arctic environment.18 A long list of reasons have been put forward for not ‘disturbing the balance’ too far through excessive legalization. Those reasons include: the time-consuming nature of diplomatic negotiations; the lack of ratification of existing agreements; the danger of adopting lowest common denominator standards; the need to implement existing international commitments as a first priority; and the concern over interfering with the existing status of indigenous organisations as Permanent Participants.19 This paper takes stock of how the Arctic Council is faring as a governance institution fifteen years after its establishment. Since a comprehensive analysis of the Council’s accomplishments during its first ten years already exists,20 this review largely focuses on initiatives and developments within the last five years. Section II highlights how the Arctic Council has edged forward with progressions on numerous fronts through its six working groups and biennial ministerial meetings. Section III evaluates the key challenges still confronting the Arctic Council: fully implementing existing commitments and recommendations; completing the Arctic Council’s restructuring; addressing future ocean governance of areas beyond national jurisdiction in the Arctic and, strengthening the ‘Arctic voice’ in international fora.

II. Edging Forward The bulk of progressive activities of the Council has occurred through the Council’s six working groups while Ministerial meetings of the Council have served as key decision-making venues where, for example, decisions have been reached to establish 17 Hans H. Hertell, Arctic Melt: The Tipping Point for an Arctic Treaty, Georgetown International Environmental Law Review 21 (2009), 565. 18

Bonnie A. Malloy, On Thin Ice: How a Binding Treaty Regime Can Save the Arctic, Hastings West-Northwest Journal of Environmental Law & Policy 16 (2010), 471. 19 David L. VanderZwaag, Climate Change and the Future of Arctic Governance: A Slushy Seascape and Hard Questions, in: Timo Koivurova/E. Carina H. Keskitalo/Nigel Bankes (eds.), Climate Governance in the Arctic (2009), 403, 416; Oran R. Young, If an Arctic Ocean Treaty Is Not the Solution, What Is the Alternative?, Polar Record 47 (2011), 327, 332. 20

Timo Koivurova/David L. VanderZwaag, The Arctic Council at 10 Years: Retrospect and Prospects, University of British Columbia Law Review 40 (2007), 121.

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task forces to negotiate regional agreements on ‘search and rescue’ and ‘emergency preparedness and response’.

A. Arctic Council Working Groups

1. Arctic Monitoring and Assessment Programme (AMAP) The AMAP Working Group has been progressive in monitoring and assessing the status, trends and risks of pollutants in the Arctic and has developed a typical assessment approach of first issuing non-technical summary reports followed by more detailed, fully-referenced scientific reports.21 Six summary reports, issued since the 2006 non-technical report on Arctic Acidification and Haze,22 provide an illustration of AMAP assessment progressions and are briefly summarised here. A 2011 mercury assessment report23 provides updated information on the levels and sources of mercury in the Arctic and offers various policy recommendations. About 100 tonnes of mercury are estimated to enter the Arctic Ocean from the air each year with an additional 100 tonnes (approximately), thought to inflow, from the Atlantic and Pacific Oceans, rivers and coastal erosion.24 Asian States, with China and India being the highest emitters, are estimated to be responsible for 65 % of global mercury emissions.25 The report issues a warning call on the possible effects of climate change on the mercury cycle with increased releases arising from permafrost thaws, ice melts and rising river discharges.26 The report notes that some Arctic biota, especially marine top predators like polar bears, exhibit high levels of mercury in their bodies which exceed thresholds for biological effects.27 In light of the scientific findings, the 2011 assessment recommends, inter alia, that the Arctic Council should 21 Reports are available at: http://www.amap.no/Assessment/GeneralPublic.htm (accessed on 27 October 2011). 22

AMAP, Arctic Pollution 2006: Acidification and Arctic Haze (2006).

23

AMAP, Arctic Pollution 2011 (2011).

24

Ibid., iv.

25

Ibid., 6.

26

Ibid., v.

27

Ibid., 26.

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continue supporting intergovernmental negotiations to develop a legally-binding global instrument on mercury, and that health authorities develop culturally appropriate communication strategies concerning contaminants and human health.28 AMAP’s Snow, Water, Ice and Permafrost in the Arctic (SWIPA) Assessment,29 also released in 2011, provides an update on climate change impacts on the Arctic ‘cryosphere’, that is, seasonally or perennially frozen areas.30 Key findings include: the revelation that surface air temperatures in the Arctic since 2005 have been higher than any five-year period since measurements began around 1880;31 multi-year sea ice, mountain glaciers, ice caps and the Greenland Ice Sheet have all been declining faster since 2000 than they did in the previous decade;32 the Arctic Ocean is projected to become nearly ice-free in summer, likely within the next 30 to 40 years;33 and Arctic infrastructure faces increased risks of damage due to changes in the cryosphere, particularly the loss of permafrost and land-fast ice.34 Among the recommendations, the report urges Arctic governments to develop and implement Arctic adaptation strategies and Member States of the Arctic Council to increase their leadership in international negotiations to reduce global greenhouse gas emissions as a matter of urgency.35 Building on previous AMAP assessments in 1997 and 2002,36 a 2009 ‘State of the Arctic Environment Report’ gave an updated picture on three areas: persistent organic pollutants, human health and radioactivity.37 The assessment highlighted the need to consider further international and national regulatory actions for groups of chemicals accumulating in Arctic food webs including brominated flame retardants and fluorinated compounds used as stain repellents and as non-stick surfaces in cookware.38 28

Ibid., iii.

29

AMAP, SWIPA 2011 Executive Summary (2011).

30

Ibid., 3.

31

Ibid., 4.

32

Ibid., 6.

33

Ibid., 7.

34

Ibid., 9.

35

Ibid., 15.

36

AMAP, Arctic Pollution 2002 (2002) and AMAP, Arctic Pollution Issues: A State of the Environment Report (1997). 37

AMAP, Arctic Pollution 2009 (2009).

38

Ibid., 6–20.

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The report noted 65 high-production volume (>100,000 tonnes per year) industrial organic chemicals and pesticides may have the ability to biomagnify into Arctic indigenous peoples’ traditional foods.39 About 4,300 organic chemicals, most with low or unknown production, are thought to have Arctic accumulation properties.40 The report also reviewed the risks and inputs of radioactivity from existing sources, such as nuclear fuel reprocessing plants, nuclear power plants in the vicinity of the Arctic, nuclear submarine decommissioning in the Russian Federation and radioisotope thermoelectric generators (RTGs).41 The report summarised some of the numerous international assistance efforts to help the Russian Federation to decommission nuclear submarines, to better manage stored nuclear wastes and to dismantle existing RTGs.42 Potential sources of radionuclides were highlighted including Russian plans for developing floating nuclear power plants and technologically enhanced naturally occurring radioactive materials (TENORM) from various industrial activities such as mineral mining, oil and gas extractions, phosphate production and the use of geothermal energy.43 The assessment report recommended increased attention to TENORM in future assessments and urged information to be provided from all countries engaged in or planning Arctic oil and gas extraction and uranium or other mining.44 Two additional reports were also published by AMAP in 2009. The first was the ‘Summary – The Greenland Ice Sheet in a Changing Climate’45 which emphasised the worrisome rate of loss in the Greenland Ice Sheet with the annual loss of ice between 1995 and 2000, averaging about 50 gigatonnes (Gt),46 and this transitioned to a dramatically increasing average annual loss during 2003–2006 of about 160 Gt.47 The report was presented in December 2009 as an Arctic Council contribution to a 39

Ibid., 22.

40

Ibid.

41

RTGs are self-contained devices using radioactive decay to produce electricity for remote areas, such as lighthouses, ibid., 73. 42

Ibid., 70–74.

43

Ibid., 74–78.

44

Ibid., ix.

45

AMAP, Summary – The Greenland Ice Sheet in a Changing Climate: Snow, Water, Ice and Permafrost in the Arctic (SWIPA) 2009 (2009). 46

A Gt = 1,000,000,000 tonnes. Ibid., 9.

47

Ibid.

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side event at the United Nations Framework Convention on Climate Change 15th Conference of the Parties.48 The second report was the “Update on Selected Climate Issues of Concern.”49 It highlighted the substantial contributions of short-lived climate forcers, black carbon, methane and ozone to Arctic warming and suggested mitigation options.50 AMAP’s Arctic Oil and Gas 2007 report, finalised in 2008,51 provided an overview of present and potential future impacts of oil and gas activities in the Arctic and the likely course of hydrocarbon developments. Russia was identified as the dominant Arctic producer of oil and gas with Russia possessing over 75 % of known Arctic oil and over 90 % of known Arctic gas.52 An increase in oil and gas activity was projected given that the Arctic contains an estimated quarter of the world’s undiscovered oil and gas.53 Among numerous recommendations, the report urged Arctic oil and gas activities to be conducted in accordance with the precautionary approach and polluter pays principle,54 and suggested that consideration be given to the need for additional protected areas and areas closed for oil and gas activities.55 AMAP is in the process of preparing additional assessment reports for the Council’s next Ministerial meeting in 2013. AMAP expert groups are also assessing Arctic Ocean acidification and short-lived climate forcers with a particular focus on tropospheric ozone and methane.56

48 AMAP, Information on GRIS and the SWIPA Project, available at: http://amap.no/swipa/press 2009/GRISContent.html (accessed on 27 October 2011). 49 AMAP, Update on Selected Climate Issues of Concern: Observations, Short-lived Climate Forcers, Arctic Carbon Cycle, and Predictive Capability (2009). 50 Options include, among others: emissions controls on diesel engines and oil and gas flaring; improvements in agricultural practices such as reduced burning; and capturing or eliminating methane emissions from major industrial and waste treatment sources, ibid., 8. 51

AMAP, Arctic Oil and Gas 2007 (final 1 May 2008).

52

Ibid., ix.

53

Ibid., 32.

54

Ibid., v.

55

Ibid., vii.

56

AMAP, Work Plan for 2011–2013 with tentative deliverables in: Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland (May 2011), 30, 31, available at: http://www.arctic-council.org/ index.php/en/about/documents/category/20-main-documents-from-nuuk (accessed on 23 November 2011).

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2. Arctic Contaminants Action Program (ACAP) The ACAP Working Group has mainly focused on undertaking inventories and pollution reduction and control projects in the Russian Federation.57 These projects have been implemented through seven Project Steering Groups (PSGs).58 They address areas of integrated hazardous waste management, environmentally-sound management of obsolete and prohibited pesticides, reduction and elimination of dioxin and furan releases, reduction of mercury releases, phasing out polychlorinated biphenyls (PCB), the reduction and elimination of sources and releases of brominated flame retardants, and local sources of contamination in indigenous communities.59 The project outcomes can be deduced from ACAP’s report for the Senior Arctic Officials (SAOs) which summarises main achievements from 2009 to 2011.60 Some of the progress made include the improved storage of 6,500 tonnes of obsolete pesticides in nine northern Russian priority districts directly impacting the Arctic,61 and the completion in 2010 of a project in several Russian chlor-alkali facilities to reduce mercury releases in wastewater and improve mercury monitoring systems.62 Further, ACAP has identified the lack of facilities in Russia to destroy obsolete pesticide stocks in an environmentally sound manner as a major limitation.63 In addition, ACAP in 2010 established a Project Steering Group on Short-lived Climate Forcers. Initial activities are expected to focus on demonstration projects for reducing Arctic black carbon emissions.64

57 The need to broaden activities to be more circumpolar in nature has been identified by ACAP as a desirable future direction, see ACAP Report for 2009–2011 in: SAO Report, ibid., 9. 58

For a full listing and more detailed project descriptions, see ACAP, ACAP Projects, available at: http://www.ac-acap.org/Page_project_eng.htm (accessed on 13 October 2011). 59

The Indigenous Peoples Contaminants Action Programme, having its Project Steering Group terms of reference approved by ACAP in September 2010, is tasked with developing model demonstration projects addressing local sources of contamination in indigenous communities, ibid. and SAO Report (note 56), 11. 60

SAO Report (note 56), 9–11.

61

Ibid., 10.

62

Ibid.

63

Ibid., 9.

64

Ibid., 11.

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3. Conservation of Arctic Flora and Fauna (CAFF) A comprehensive review of CAFF’s monitoring assessment and conservation activities is beyond the scope of this paper;65 nonetheless two main initiatives stand out on the monitoring and assessment front. First, the Circumpolar Biodiversity Monitoring Program (CBMP), endorsed by Arctic Council Ministers in 2004,66 continues to evolve as an international network of scientists and conservation experts dedicated to harmonising and integrating efforts to monitor living resources in the Arctic.67 Working through Expert Monitoring Groups, the CBMP is developing four umbrella monitoring plans for marine, terrestrial, freshwater and coastal ecosystems.68 In addition, a Pan-Arctic Polar Bear Monitoring Plan is under development.69 In April 2011, the Marine Expert Monitoring Group released the first of the four general plans: the Arctic Marine Biodiversity Monitoring Plan.70 The Plan establishes eight Arctic Marine Areas by which monitoring efforts and results will be organised,71 sets out a suite of biological parameters and indicators to be monitored,72 identifies existing monitoring programs with contribution potential for the CBMP,73 and includes a ten year implementation schedule and budget.74

65

For a detailed listing of CAFF initiatives, see CAFF Report, in: SAO Report (note 56), 14–19.

66

Reykjavik Declaration on the Occasion of the Fourth Ministerial Meeting of the Arctic Council, 24 November 2004, available at: http://www.arctic-council.org/index.php/en/about/documents/ category/5-declarations (accessed on 23 November 2011). 67

CBMP, History of the CBMP, available at: http://caffportal.arcticportal.org/about-the-cbmp/ history-of-the-cbmp (accessed on 28 December 2011). 68

CBMP, e-CBMP Newsletter, Summer 2011, available at: http://www.caff.is/e-cbmp-newsletter (accessed on 2 October 2011). 69 See Dag Vongraven/Elizabeth Peacock, Development of a Pan-Arctic Monitoring Plan for Polar Bears: Background Paper, CAFF Monitoring Series Report No. 1 (January 2011). 70 Mike J. Gill et al., Arctic Marine Biodiversity Monitoring Plan, CAFF Monitoring Series Report No. 3 (April 2011). 71

The eight areas are: Atlantic Arctic, Davis-Baffin, Hudson Complex, Arctic Archipelago, Beaufort, Pacific-Arctic, Kara-Laptev and Arctic Basin, ibid., 22. 72

Suggested parameters and indicators are set out for plankton, sea-ice biota, benthos, fish, seabirds and marine mammals, ibid., 32–40. 73

Ibid., 41–47.

74

Ibid., Appendix A.

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Second, CAFF’s Arctic Biodiversity Assessment (ABA), endorsed by Arctic Council Ministers in 2006,75 aims to assess the current state of Arctic ecosystems and biodiversity and to provide up-to-date scientific and traditional ecological knowledge on changing trends in light of climate change and other stressors. A preliminary report, published in 2010 as a contribution to the UN’s International Year of Biodiversity, was the “Arctic Biodiversity Trends 2010: Selected Indicators of Change.”76 The report reviews 22 indicators of change including trends in various species, such as polar bears, wild reindeer and caribou, seabirds and arctic char, and changes in ecosystems (such as sea-ice and peat lands). A full ABA report is to be completed in 2013 for the next Arctic Council Ministerial meeting.77

4. Emergency Prevention, Preparedness and Response (EPPR) The EPPR Working Group, mandated to help strengthen preparedness to respond to regional emergencies involving oil, hazardous substances, radiation and natural disasters, has moved forward through various technical information exchanges, training exercises and projects.78 The most recent EPPR project report is on the “Behaviour of Oil and Other Hazardous and Noxious Substances Spilled in Arctic Waters.”79 The report provides an overview of the risks of oil and hazardous and noxious substances (HNS) spills in the Arctic, the behaviour of such spills in Arctic conditions and available response methods. Those methods include mechanical recovery, use of sorbents, dispersants, and in-situ burning.80 The report recommends the further development and understanding of technologies for oil spill response in the Arctic;81 it highlights the present lack of information on HNS transported in the 75

Salekhard Declaration (note 10), 6–7.

76

CAFF International Secretariat, Arctic Biodiversity Trends 2010: Selected Indicators of Change, May 2010, available at: http://www.arcticbiodiversity.is (accessed on 14 October 2011). 77

CAFF Report (note 65), 17.

78

A full listing of EPPR current and completed projects along with publications is available at: http://eppr.arctic-council.org/ (accessed on 17 October 2011). 79

EPPR Working Group, Behaviour of Oil and Other Hazardous and Noxious Substances Spilled in Arctic Waters, March 2011, available at: http://eppr.arctic-council.org/ (accessed on 17 October 2011). 80

Ibid., 61–76.

81

Ibid., 94.

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region; and recommends that a systematic survey be undertaken of current and projected HNS shipping in the Arctic.82 At the Arctic Council Ministerial meeting held in May 2011 the Working Group was given a further task. Ministers called for the EPPR, in cooperation with other relevant working groups, to develop recommendations and best practices for the prevention of marine oil pollution and to submit preliminary or final results at the next Ministerial meeting in 2013.83 During the EPPR Working Group meeting in June 2011, a decision was reached to establish a Prevention Correspondence Group, co-led by Norway and Canada, to convene a scoping workshop and to develop a prevention project work plan.84

5. Protection of the Arctic Marine Environment (PAME) The PAME Working Group’s most substantial strides forward relate to Arctic shipping. Following a mandate set out in the Arctic Council’s Arctic Marine Strategic Plan,85 PAME undertook a comprehensive assessment of present and likely future shipping activities in the Arctic. Consequently, the 2009 Arctic Marine Shipping Assessment (AMSA) report86 provided a detailed critique of the adequacy of applicable international agreements and guidelines.87 The report made seventeen recommendations organised under three themes for strengthening shipping governance. Under the ‘Enhancing Arctic Marine Safety’ theme, AMSA recommended that Arctic States should support the updating and mandatory application of relevant parts of the 82

Ibid., 95.

83

Nuuk Declaration on the Occasion of the Seventh Ministerial Meeting of the Arctic Council, 12 May 2011, Nuuk, Greenland, 4, available at: http://www.arctic-council.org/index.php/en/about/ documents/category/5-declarations (accessed on 23 November 2011). 84 EPPR Working Group Meeting Final Report, Whitehorse, Yukon Canada, 15–16 June 2011, 20, available at: http://eppr.arctic-council.org/content/reports/EPPR-Working-Group-Meeting-FinalReport%209-10-11.pdf (accessed on 23 November 2011). 85

Para. 7.1.5 called for a comprehensive assessment of Arctic marine shipping at current and projected levels, Arctic Council, Arctic Marine Strategic Plan, 24 November 2004, available at: http:// www.pame.is/arctic-marine-strategic-plan (accessed on 23 November 2011). 86 Arctic Council, Arctic Marine Shipping Assessment 2009 Report (2009), available at: http:// arcticportal.org/uploads/4v/cb/4vcbFSnnKFT8AB5lXZ9_TQ/AMSA2009Report.pdf (accessed on 23 November 2011). 87

Ibid., 50–69.

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Guidelines for Ships Operating in Arctic Ice-Covered Waters;88 augment global International Maritime Organisation (IMO) ship safety and pollution prevention conventions with specific mandatory requirements or other provisions aimed at protecting the Arctic environment;89 consider possible harmonisation of national shipping regulatory regimes;90 and develop and implement a multi-national Arctic Search and Rescue (SAR) instrument.91 Under the second theme, “Protecting Arctic People and the Environment,” AMSA, among other things, urged Arctic States to identify areas of heightened ecological and cultural significance and to implement protective measures from the impacts of Arctic marine shipping;92 explore the need for internationally designating areas of the Arctic Ocean for special environmental protection (possibly through the IMO by the use of ‘Special Area’ or Particularly Sensitive Sea Area (PSSA) designations);93 and consider working with the IMO to address shipping impacts on marine mammals through developing and implementing mitigation strategies.94 Recommendations under the third theme, ‘Building Arctic Marine Infrastructure’, included the need for Arctic States to improve Arctic marine infrastructure;95 continue developing circumpolar environmental pollution response capabilities (for example, through circumpolar or bilateral agreement(s));96 and increase investments relating to the provision of hydrographic, meteorological and oceanographic data for Arctic waters.97 The AMSA report might be described as a ‘living document’ as monitoring implementation of AMSA recommendations will be an ongoing part of the PAME agenda with regular reports to Arctic Council Ministers. Therefore, many recommendations

88

Ibid., 6, Recom. I. B.

89

Ibid.

90

Ibid., Recom. I. C.

91

Ibid., Recom. I. E.

92

Ibid., 7, Recom. II. C.

93

Ibid., Recom. II. D.

94

Ibid., Recom. II. G.

95

Ibid., Recom. III. A.

96

Ibid., Recom. III. C.

97

Ibid., Recom. III. D.

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have already received substantial follow-ups.98 The IMO is in the process of developing a legally binding Polar Shipping Code.99 The five Arctic coastal States on 6 October 2010 established an Arctic Regional Hydrographic Commission under the auspices of the International Hydrographic Commission to promote enhanced charting and routing in the Arctic region.100 Further, under the leadership of Norway, Russia and the United States, a PAME project is reviewing the risks associated with the carriage of heavy fuel oil (HFO) in the Arctic and exploring ways for minimising risks including the possibility of international regulations.101 Furthermore, the Sustainable Development Working Group, AMAP and CAFF are cooperating in a study of areas of heightened ecological and cultural significance in the Arctic.102 And in May 2011, Arctic States adopted an Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic.103 PAME has also made advances in addressing land-based marine pollution and oil and gas activities. In 2009 PAME completed a revision of the Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities (RPA).104 The RPA reviews the status of nine pollution source categories in the

98 For a full review see Arctic Council, Status on Implementation of the AMSA 2009 Report Recommendations, May 2011, available at: http://www.arctic-council.org/index.php/en/about/documents/ category/26-pame-nuuk-ministerial (accessed on 23 November 2011). 99 In 2009 the Maritime Safety Committee (MSC) of IMO tasked its Design and Equipment SubCommittee with developing a mandatory code for ships operating in polar waters with a target completion date of 2012 and the IMO’s Marine Environment Committee (MEPC) subsequently concurred in the decision, see MSC, Report of the Maritime Safety Committee at Its Eighty-Sixth Session, MSC 86/ 26 (12 June 2009), 111 and MEPC, Report of the Marine Environmental Protection Committee on Its Sixtieth Session, MEPC 60/22 (12 April 2010), 104. 100 See Statutes of the Arctic Regional Hydrographic Commission, 6 October 2010, available at: http://www.iho.int/srv1/index.php?option=com_content&view=article&id=435&Itemid=690 (accessed on 23 November 2011). 101

Arctic Council (note 98), 5.

102

Ibid., 8.

103

Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, available at: http://arctic-council.npolar.no/accms/export/sites/default/en/meetings/2011nuuk-ministerial/docs/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr-2011.pdf (accessed on 23 November 2011). 104 Arctic Council, Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities, 29 April 2009, available at: http://www.arctic-council.org/index.php/ en/about/documents/category/62-pame (accessed on 23 November 2011).

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Arctic,105 ranks source categories as high, medium or low in priority for action,106 and suggests specific measures for addressing the two highest priorities: persistent organic pollutants107 and heavy metals.108 PAME also led the revision of Arctic Offshore Oil and Gas Guidelines (the Guidelines), adopted by the Arctic Council on 29 April 2009.109 The Guidelines encourage regulators in the eight Arctic States to adopt common principles110 and practices in managing oil and gas activities. The Guidelines encourage the application of environmental assessment procedures with special consideration given to potential impacts on indigenous ways of life and cultural heritage.111 The Guidelines suggest various operating practices to control or prevent waste discharges, for example, the use of non oil-based drilling fluids and zero discharge from wastes where feasible.112 A further PAME initiative, launched in 2009, holds particular promise to influence future strengthening in Arctic Ocean governance. PAME’s Arctic Ocean Review (AOR) project in Phase I, completed in 2011, produced a descriptive overview report on the existing global and regional agreements and arrangements relevant to marine environmental protection in the Arctic.113 Phase II of the AOR is expected to produce a final report to Arctic Council Ministers in 2013 with suggested options for 105 The nine categories are POPs, heavy metals, physical alteration and destruction of habitats, radionuclides, petroleum hydrocarbons, sewage, nutrients, sediments and litter, ibid., 6–12. 106

POPs and heavy metals are listed as high priorities while sewage, nutrients, sediments and litter are listed as low, ibid. 107 For example, Arctic States are encouraged to ratify the Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Persistent Organic Pollutants, 24 June 1998, UNTS 2230, 79 (LRTAP POPs Protocol), and the Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, UNTS 2256, 119, and to phase out certain POPs in addition to existing requirements under international agreements, ibid., 14. 108

For example, Arctic States are encouraged to ratify the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Heavy Metals, 24 June 1998, UNTS 2237, 4 (LRTAP Heavy Metals Protocol), and to cooperate in activities at the global level on mercury reduction, ibid. 109

Arctic Council, Arctic Offshore Oil and Gas Guidelines, 29 April 2009, available at: http:// www.pame.is/offshore-oil-and-gas (assessed on 23 November 2011). 110

Key general principles include the precautionary approach, polluter pays, continuous improvement and sustainable development, ibid., 6–7. 111

Ibid., 13.

112

Ibid., 31–33.

113

PAME, The Arctic Ocean Review: Phase I Report (2009–2011), 2011, available at: http://arcticcouncil.npolar.no/en/meetings/2011-nuuk-ministerial/docs/ (accessed on 23 November 2011).

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enhancing global and regional agreements and measures for the management of the Arctic marine environment.114 An AOR Expert Workshop, held in Reykjavik, Iceland, 20–21 September 2011, provided a venue for initial exploration of ideas to advance cooperation in the areas of Arctic marine science, Arctic pollution sources, living marine resource management, offshore oil and gas, and shipping.115

6. Sustainable Development Working Group (SDWG) The SDWG carried out numerous projects and activities116 under six thematic areas,117 but they largely focused on Arctic human health and socio-economic issues.118 The SDWG in collaboration with the PAME Working Group undertook a major policy-relevant project, “Best Practices in Ecosystem-based Oceans Management in the Arctic,” which was completed in 2009.119 The project produced a comprehensive report on indigenous perspectives and the practices of seven Arctic States relating to ecosystem-based management.120 It also developed a summary document on best practices in ecosystem-based ocean management in Arctic countries.121 The

114 Arctic Council, Arctic Ocean Review (AOR) Project 2009–2013, available at: http://www.aor.is/ index.php?option=com_content&view=category&layout=blog&id=2&Itemid=3 (accessed on 23 November 2011). 115

The author was a participant.

116

For a chronological listing of SDWG projects and activities since 1996, see SDWG Work Plans and Projects List, available at: http://portal.sdwg.org/content.php?doc=86 (accessed on 19 October 2011). 117

The themes are Arctic human health, Arctic socio-economic issues, adaptation to climate change, energy and Arctic communities, management of natural resources, and Arctic cultures and languages, SDWG Work Plan 2011–2013, in: SAO Report (note 56), 44. 118 For example, the Arctic Human Health Initiative, led by the United States and began as an International Polar Year coordinating project for human health research, has continued with 28 projects under its umbrella, SDWG, Arctic Human Health Initiative Report to the Arctic Council Ministerial, April 2009, available at: http://portal.sdwg.org/content.php?doc=77 (accessed on 23 November 2011). 119

Alf Håkon Hoel (ed.), Best Practices in Ecosystem-based Oceans Management in the Arctic, Norwegian Polar Institute Report No. 129 (2009). 120 121

Case studies included: Russia, Finland, Norway, Iceland, Denmark/Greenland, Canada and USA.

PAME, Observed Best Practices in Ecosystem-based Oceans Management in the Arctic Countries, available at: http://arcticportal.org/uploads/C8/gZ/C8gZgqLpt59hrMU2gJHpXQ/Dec-08. final-draft-OBP-document---PAME-Nov-2008.pdf (accessed on 23 November 2011).

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report highlighted a major gap in existing ecosystem-based management, namely, the lack of integrated planning in the transboundary context.122 The SDWG’s Workplan for 2011–2013 stands out for its limitations. Projects are proposed under the themes of Arctic human health, socio-economic issues and Arctic cultures and languages. However, no ongoing projects are proposed under the themes of adaptation to climate change, energy and Arctic communities, and management of natural resources.123 At the Nuuk Ministerial meeting in May 2011, Arctic Council Ministers issued a further assessment mandate to be taken up by the SDWG. Ministers called for an assessment of the current state of human development on the Arctic and its relationship with climate change and other factors affecting Arctic communities.124 The SDWG is in the process of developing a project, Arctic Human Development II, to provide a circumpolar assessment of human development and quality of life in the Arctic.125

B. Arctic Council Ministerial Meetings

For most of the Arctic Council’s history, Ministerial meetings could be characterised as largely discussional and limited in law and policy impacts. Decisions were dominated by approving working group workplans and projects and other recommendations suggested by SAOs.126 At the Sixth Ministerial meeting in Tromsø, Norway on 29 April 2009, a major shift occurred with Ministers taking more of a policy-shaping role. Ministers decided to establish a task force on short-lived climate forcers (SLCF) to identify measures to reduce emissions and to recommend immediate response actions with a progress report

122

See e.g. the Canadian report and its highlighting the lack of integrated planning in the shared marine waters of the Beaufort Sea (Canada-USA) and Baffin Bay and Davis Strait (Canada-Denmark/ Greenland), Robert Siron/David VanderZwaag/Helen Fast, Ecosystem-based Ocean Management in the Canadian Arctic, in: Hoel (note 119), 81. 123

SDWG Workplan (note 117), 45.

124

Nuuk Declaration (note 83), 2.

125

SDWG Work Plan (note 117), 46.

126

A common practice is for Working Groups to provide reports to SAOs and for SAOs to draw many of their recommendations to Ministers from the submitted reports.

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requested for the next Ministerial meeting.127 The Ministers approved recommendations of the AMSA report, urged that parts of the Guidelines for Ships Operating in Arctic Ice-covered Waters be made mandatory, and called for augmenting global IMO ship safety and pollution conventions in order to better protect the Arctic environment.128 The greatest jump to a policy formation role was the decision to establish a task force to develop and complete negotiation by the next Ministerial meeting in 2011 of an international instrument on cooperation in Arctic SAR operations.129 A task force under Arctic Council auspices subsequently negotiated an Arctic Search and Rescue Agreement (the Agreement) which was signed during the Arctic Council Ministerial meeting in Nuuk, Greenland on 12 May 2011.130 Besides delineating regions of national SAR responsibility, the Agreement, among other things, calls for carrying out joint SAR exercises and training, and facilitating expeditious cooperative responses to SAR situations. Canada hosted the first gathering of SAR specialists from the eight Arctic Council States for an Arctic SAR table top exercise, 5–6 October 2011 in Whitehorse, Yukon. Also at the Seventh Ministerial meeting in Nuuk, Greenland on 12 May 2011, Ministers welcomed reports on SLCF and encouraged Arctic States to implement at the national level relevant recommendations for reducing emissions of black carbon.131 Ministers also decided to establish a Short-Lived Climate Forcer Contaminants project steering group to undertake circumpolar demonstrative projects to reduce black carbon and other SLCF emissions.132 Ministers further advanced the Council’s governance shaping role by deciding to establish a task force to develop an international instrument on Arctic marine oil pollution preparedness and response.133 127 Tromsø Declaration on the Occasion of the Sixth Ministerial Meeting of the Arctic Council, 29 April 2009, Tromsø, Norway, 3, available at: http://www.arctic-council.org/index.php/en/about/ documents/category/5-declarations (accessed on 23 November 2011). An initial report was subsequently published: Technical Report of the Arctic Council Task Force on Short-Lived Climate Forcers, An Assessment of Emissions and Mitigation Options for Black Carbon for the Arctic Council, May 2011, available at: http://www.arctic-council.org/index.php/en/about/documents/category/7-working-groupsscientific-reportsassessments (accessed on 23 November 2011). 128

Tromsø Declaration (note 127), 4.

129

Ibid., 5.

130

Agreement on Cooperation in Aeronautical and Maritime Search and Rescue (note 103).

131

Nuuk Declaration (note 83), 3.

132

Ibid.

133

Ibid., 4.

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III. Sea of Challenges The key challenges facing the Arctic Council as it voyages beyond its first fifteen years may be largely summarised under four headings. They include: fully implementing existing commitments and recommendations; completing the Arctic Council’s restructuring; addressing future governance of Arctic areas beyond national jurisdiction; and strengthening the ‘Arctic voice’ in international fora.

A. Fully Implementing Existing Commitments and Recommendations

Getting a firm grip on how the numerous commitments and recommendations flowing from Arctic Council Ministerial meetings and reports have been implemented is difficult since the Council has not generally required national reporting or project follow-up monitoring.134 For example, although the Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities recommended the development of a reporting procedure and format for assessing RPA implementation and effectiveness,135 no national reporting system has been created. Nevertheless, various implementation challenges stand out with three of them reviewed below.

1. Getting Full Ratification of International Agreements While various encouragements have been given to Arctic States to sign and ratify key international agreements, implementation remains a challenge. For example, the RPA urges Arctic States to ratify the 2001 Stockholm Convention on Persistent Organic Pollutants (POPs) and the Convention on Long-range Transboundary Air Pollution (LRTAP) Protocols on POPs and heavy metals.136 However, the United

134

The exception standing out is the AMSA report where review is ongoing, see supra, note 98.

135

RPA (note 104), 16.

136

Ibid., 14. Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Persistent Organic Pollutants (note 107) and Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Heavy Metals (note 108).

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States have not ratified the Stockholm Convention;137 the Russian Federation and USA are not parties to the LRTAP POPs Protocol138 and Iceland and the Russian Federation are not parties to the Heavy Metals Protocol.139 Ratification of the International Convention for the Control and Management of Ships Ballast Water and Sediments140 was one of the key recommendations of the AMSA report,141 but implementation has been slow. Only Canada, Norway and Sweden have ratified the Convention.142 National reasons for the lack of ratifications are too diverse to elaborate in this article.

2. Following Through with AMSA Recommendations While considerable progress in implementing AMSA recommendations has occurred since the report was published in 2009,143 many ‘unfinished agendas’ remain. For example, the AMSA Implementation Status Report of May 2011 noted that more work needs to be done to identify and protect areas of heightened ecological and culture significance within the Arctic. Further, sharing Arctic maritime domain awareness information on positions and movements of ships should be enhanced

137 The Russian Federation ratified the Convention on 17 August 2011 and it will enter into force for the Federation on 15 November 2011 (this statement was correct at the time of writing, and at the time of going to press the Stockholm Convention entered into force for Russia). Denmark has ratified but with a territorial exclusion of Faroe Islands and Greenland. Stockholm Convention status of ratification is available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no= XXVII-15&chapter=27&lang=en (accessed on 23 November 2011). 138 LRTAP POPs Protocol status of ratification is available at: http://treaties.un.org/pages/View Details.aspx?src=TREATY&mtdsg_no=XXVII-1-g&chapter=27&lang=en (accessed on 23 November 2011). 139 LRTAP Heavy Metals Protocol status of ratification is available at: http://treaties.un.org/pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-1-f&chapter=27&lang=en (accessed on 23 November 2011). 140

International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 23 February 2004, IMO Doc. BWM/CONF/36 Annex. 141

AMSA (note 86), 7, Recom. II. E.

142

As of 30 September 2011, IMO, Status of Conventions, available at: http://www.imo.org/ About/Conventions/StatusOfConventions/Pages/Default.aspx (accessed on 23 November 2011). 143

Arctic Council (note 98).

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among Arctic Council member governments.144 More effort to ensure adequate spill response capacity across the Arctic was also identified as a further item for attention.145 A priority challenge is the completion of negotiations towards an effective Polar Shipping Code (the Code). However, numerous issues remain to be resolved regarding its contents. They include: types of vessels to be covered such as possible extension to fishing vessels; the appropriate balance between mandatory and recommendatory provisions; the inclusion of ice navigational training requirements; vessel-source pollution discharge standards; and voyage planning requirements, such as possible pairing of ships to assist potential search and rescue.146 In July 2011, a Working Group Report on the development of a mandatory Polar Shipping Code to the IMO’s Sub-Committee on Ship Design and Equipment (DE) noted the lack of final agreement for the various draft chapters of the Code.147 The inclusion of an environmental chapter within the Code has become particularly controversial with an IMO Workshop held from 27– 30 September 2011 to discuss environmental aspects of the Code.148 A further complication is resolving how to make the Code mandatory with three main possible options: adopting the Code as an amendment to the SOLAS Convention;149 developing amendments to SOLAS, MARPOL,150 the Anti-fouling Systems Convention151 and the Ballast Water Management Convention;152 and creating a new convention on polar shipping.153 The IMO Subcommittee on Ship Design and 144

Ibid., 3.

145

Ibid.

146

See IMO Sub-Committee on Ship Design and Equipment, Comments on the Report of the Correspondence Group on the Development of a Mandatory Code for Ships Operating in Polar Waters, Submitted by Denmark, IMO Doc. DE 55/12/15 (31 January 2011). 147

IMO Sub-Committee on Ship Design and Equipment, Report of the Working Group (Part 2), Development of a Mandatory Code for Ships Operating in Polar Waters, IMO Doc. DE 56/10 ( 7 July 2011), para. 6. 148

See IMO, Circular Letter No. 3201/Add. 1, 24 August 2011.

149

International Convention for the Safety of Life at Sea, 1 November 1974, UNTS 1184, 3.

150

International Convention for the Prevention of Pollution from Ships, 2 November 1973, UNTS 1340, 184. 151

International Convention on the Control of Harmful Anti-fouling Systems on Ships, 5 October 2001, IMO Doc. AFS/CONF/26 Annex. 152

International Convention for the Control and Management of Ships’ Ballast Water and Sediments (note 140). 153

IMO Sub-Committee on Ship Design and Equipment, Outcome of DE 55 – Legal Opinion on Making the Polar Code Mandatory, IMO Doc. MEPC 62/11/14. Add 1 (6 May 2011).

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Equipment (DE) has re-established the Correspondence Group on Development of a Mandatory Code under the co-ordination of Norway to further develop the Code with a report to be submitted to the 56th session of the DE Sub-Committee.154 The target completion date of 2012 for the Polar Shipping Code negotiations seems unlikely to be met in light of the numerous issues to be resolved. Arctic Council Ministers in the Nuuk Declaration in 2011 already emphasised the need for timely completion of the Polar Code.155 The PAME Working Group in its meeting in September 2011 recommended that member governments consider the submission of a paper to the IMO, which emphasizes the importance of the completion of the Polar Code to Arctic Council Member States.156 Reducing air emissions from ships, also an AMSA recommendation157 remains a ‘work in progress’. Although the IMO’s Marine Environment Protection Committee (MEPC) at its 62nd session in July 2011 adopted new regulations on energy efficiency for ships,158 sorting out further commitments on reducing greenhouse gas emissions from ships remains. Challenges such as market-based measures and possible setting of emission caps and reduction targets are to be considered further at the MEPC’s 63rd session.159 The MEPC has also tasked the Bulk Liquids and Gases (BLG) Sub-Committee with investigating appropriate control measures to reduce the impacts of black carbon emissions from international shipping and to submit a final report at the MEPC’s 65th session.160 In order to ensure compliance on the AMSA recommendation, shipping-related infrastructure in the Arctic needs to be improved by Arctic States. This stands out as a difficult challenge given the long list of infrastructure deficits identified,161 and concurrently with the need for major national financial and human resource commit154 DE Sub-Committee Report to the Maritime Safety Committee, IMO Doc. DE55/22 (15 April 2011), 28–29. 155

Nuuk Declaration (note 83), 4.

156

PAME, Record of Decisions and Follow-Up Actions PAME II-2011 (21–23 September 2011), 1.

157

AMSA (note 86), 7, Recom. II. H.

158

See MEPC, Report of the Marine Environment Protection Committee on its Sixty-Second Session, IMO Doc. MEPC 62/24 (26 July 2011), Annex 19. 159

Ibid., paras. 5.44 and 5.46.

160

Ibid., para. 4.20.

161

AMSA (note 86), 7, Recom. III. A.

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ments.162 Shipping infrastructure is clearly more advanced in the Barents Sea and Northern Sea Route regions than in other areas of the Arctic.163

3. Putting the Ecosystem Approach into Practice While the Arctic Council’s Arctic Marine Strategic Plan highlights an ecosystem approach as a way forward in managing the Arctic marine environment,164 subsequent Council activities relating to the ecosystem approach might be described as largely ‘conceptual and informative’. The Council’s project on “Best Practices in Ecosystembased Management in the Arctic” developed a list of core elements essential to implementing the ecosystem-based management concept.165 The PAME Working Group has established an Ecosystem Approach Expert Group. They held a workshop in January 2011, which discussed possible revisions to an existing map of seventeen Large Marine Ecosystems (LMEs) in the Arctic and collected information on the numerous assessments already being carried out in the LMEs.166 The Ecosystem Approach Expert Group is expected to plan the further development of ecosystem status reports for the various LMEs. This will help identify possible ways to better integrate existing national and international monitoring and assessment programmes and to contribute to the revision of the Arctic Marine Strategic Plan in light of the ecosystem approach expertise.167

162

For a recent lament over limited infrastructure in the Arctic, see Lawson Brigham, Marine Protection in the Arctic Cannot Wait, Nature 478 (2011), 157. 163 See, e.g., AMSA (note 86), 5, and Mia Bennett, The Northwest Passage Versus the Northern Sea Route (19 August 2011), available at: http://foreignpolicyblogs.com/2011/108/19/the-northwestpassage-versus-northern-sea-route/ (accessed on 26 August 2011). 164

Arctic Council (note 85), para. 7.4.

165

Some core elements include: the application of the best available scientific and other knowledge to understand ecosystem interactions and to manage human activities; an integrated and multi-disciplinary approach to management that takes into account the entire ecosystem; the assessment of cumulative impacts; setting explicit conservation standards, targets and indicators; and enhancing transboundary arrangements, PAME (note 121), 1–2. 166 PAME, Report from the PAME Workshop on Ecosystem Approach to Management, 22–23 January 2011, Tromsø, Norway, available at: http://arctic-council.npolar.no/en/meetings/2011-nuukministerial/docs/ (accessed on 23 November 2011). 167

PAME, PAME Work Plan 2011–2013, 7, available at: http://arctic-council.npolar.no/en/ meetings/2011-nuuk-ministerial/docs/ (accessed on 23 November 2011).

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However, ways in which the ecosystem approach will be further advanced within the Arctic Council remains uncertain. Arctic Ministers at the Ministerial meeting in May 2011 decided to establish an expert group on Arctic ecosystem-based management for the Arctic environment. It has been mandated to recommend further activities in that field for possible consideration by the SAOs before the end of the Swedish chairmanship.168 How the new experts group and the PAME Expert Group will interact is unclear, as they have overlapping interests. The International Union for Conservation of Nature (IUCN), an observer to the Arctic Council, has collaborated with the Natural Resources Defense Council in hosting three workshops on ecosystem-based management in the Arctic marine environment. They have suggested, among others things, the possible development of an Arctic Marine Ecosystem-based Management Strategy by the Council,169 and identified ecologically and biologically significant areas (EBSAs) in the Arctic which may warrant special protection.170 Navigating from high level discussions and assessments to concrete management commitments and measures in light of ecosystem-based management is likely to be incremental. Establishment of a network of marine protected areas in the Arctic and development of integrated management planning in the LME and transboundary contexts stand out as unmet challenges.171

B. Completing the Arctic Council’s Restructuring

While the issue of the Arctic Council’s efficiency and effectiveness has been in the Arctic Council’s agenda since Norway chaired the Council from 2006–2009, prog168

Nuuk Declaration (note 83), 4.

169

IUCN/NRDC, IUCN/NRDC Workshop on Ecosystem-based Management in the Arctic Marine Environment Workshop Report, 16–18 June 2010, Washington, D.C., available at: http:// cmsdata.iucn.org/downloads/arctic_workshop_report_final.pdf (accessed on 23 November 2011). 170 IUCN/NRDC, IUCN/NRDC Workshop to Identify Areas of Ecological and Biological Significance or Vulnerability in the Arctic Marine Environment, Workshop Report, 2–4 November 2010, La Jolla, CA, available at: http://data.iucn.org/dbtw-wpd/edocs/Rep-2011-001.pdf (accessed on 23 November 2011). 171 While the CAFF Working Group has provided useful maps identifying protected areas in the Arctic, CAFF has not been successful in developing a circumpolar protected areas network (CPAN) and a CPAN programme is currently listed as dormant, see Arctic Council, CAFF – Conservation of Arctic Flora and Fauna, available at: http://arctic-council.org/index.php/en/caff (accessed on 28 October 2011).

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ress in making changes in the administration and organisation of the Council has been slow.172 Through the Tromsø Declaration in 2009, Ministers as a small step forward decided to further strengthen the political role of the Council by having deputy minister level meetings, with representatives of Permanent Participants, to discuss emerging issues between Ministerial meetings.173 Ministers called for further consideration of how the Arctic Council should be best structured and for continued discussions on the role of observers in the Arctic Council.174 Ministers also decided to develop guidelines for engagement in outreach activities and an Arctic Council communication and outreach plan.175 A breakthrough occurred at the Nuuk Ministerial meeting in May 2011 where key steps towards strengthening the Arctic Council occurred. Ministers decided to establish a Standing Arctic Council Secretariat in Tromsø, Norway, to be operational no later than the beginning of the Canadian chairmanship of the Council in 2013.176 Ministers also decided to establish a task force to implement decisions to strengthen the Arctic Council including necessary arrangements for the Secretariat and approved the terms of reference for the task force as set out in the SAO Report to Ministers in 2011.177 The SAO Report included an annex, “Framework for Strengthening the Arctic Council,” which partly focused on providing details regarding the proposed secretariat. A key commitment was to provide an administrative budget to cover the operating costs of the secretariat with the budget to be determined at the Ministerial meeting every second year and the budget financing to be equally shared by the eight Arctic States in an amount which should not exceed US $ 1 million.178 The Framework also indicated that the Arctic Council would utilise a wide range of approaches to address

172

See Koivurova (note 1), 152–153.

173

Tromsø Declaration (note 127), 8.

174

Ibid., 9. The addition of further observers has become controversial with requests for permanent observer status by the EU, China, Italy, and South Korea being denied in 2009 pending further discussions within the Arctic Council on how to address the criteria for observers, see EU Observer, 30 April 2009, Arctic Council Rejects EU Observer Application, available at: http://euobserver.com/885/28043 (accessed on 31 October 2011). 175

Tromsø Declaration (note 127), 9.

176

Nuuk Declaration (note 83), 2.

177

Ibid.

178

SAO Report (note 56), Annex 1, 49.

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emerging challenges in the Arctic, including scientific assessments, guidelines, best practices, new legally binding instruments, and an increased use of task forces.179 In Nuuk, Ministers also adopted recommendations of SAOs on the role and criteria for observers to the Arctic Council and decided to apply the criteria to evaluate pending applicants for observer status.180 The criteria by which observer suitability is to be determined by the Council include the extent to which observers: – accept and support the objectives of the Arctic Council defined in the Ottawa declaration, – recognise Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic, – recognise that an extensive legal framework applies to the Arctic Ocean including, notably, the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean, – respect the values, interests, culture and traditions of Arctic indigenous peoples and other Arctic inhabitants, – have demonstrated a political willingness as well as financial ability to contribute to the work of the Permanent Participants and other Arctic indigenous peoples, – have demonstrated their Arctic interests and expertise relevant to the work of the Arctic Council, and – have demonstrated a concrete interest and ability to support the work of the Arctic Council, including through partnerships with Member States and Permanent Participants bringing Arctic concerns to global decision making bodies.181 The role of observers is also clarified. For example, observers may submit written statements at Ministerial meetings and at meetings of the Council’s subsidiary bodies observers may, at the discretion of the Chair, make statements after Arctic States and Permanent Participants, present written statements and submit relevant documents. Observers may propose projects through an Arctic State or a Permanent Participant 179

Ibid., 49–50.

180

Nuuk Declaration (note 83), 2.

181

SAO Report (note 56), Annex 1, 50.

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but financial contributions from observers to any given project may not exceed the financing from Arctic States, unless otherwise decided by SAOs.182 A final strengthening component adopted by Ministers in Nuuk related to Arctic Council communications. Ministers adopted Communication and Outreach Guidelines and instructed SAOs to develop a Strategic Communications Plan for the Council.183 While the Arctic Council’s structural transitionings in process offer hope for a more effective Council, other challenges loom on the horizon. Whether the Indigenous Peoples Secretariat should be integrated with the permanent Arctic Council Secretariat is under review by Permanent Participants and it remains to be seen how services to Permanent Participant organisations might be strengthened.184 By far the biggest challenge may be ensuring adequate financing for Arctic Council assessments and projects and other activities.185 The new budgetary expenditures being proposed for covering the Arctic Council are limited to secretariat costs.186 The Nuuk Declaration itself highlighted the continuing financial limitations of the Council. Ministers reiterated: [t]he need to finance circumpolar cooperation, as well as the importance of providing adequate funding to Permanent Participants to support their preparations for, and participation in, the Arctic Council, the working groups, task forces and Arctic Council projects.187

The suggestions for ways in which the Arctic Council can be strengthened, offered by various groups and authors, have not been followed. Suggestions have included: 182

Ibid., 50–51.

183

Nuuk Declaration (note 83), 2.

184

SAO Report (note 56), Annex 1, 49.

185

A Project Support Instrument (PSI), managed by the Nordic Environment Finance Corporation (NEFCO), has been launched to support Arctic Council projects but since priority is to be given to projects related to pollution prevention, abatement and elimination, it appears likely most funding will be directed towards Russian clean-up and pollution reduction projects, see NEFCO, PSI Status, ACAP Working Group Meeting, Ottawa, Canada, 16–18 September 2009, available at: http://www.ac-acap.org/ WGM%2016-18.09.09%20Ottawa.htm (accessed on 23 November 2011); The Voice of Russia, 5 October 2011, Russia Gives 10 mln Euros for Arctic Clean-Up, available at: http://english.ruvr.ru/2011/10/ 05/58195725.html (accessed on 11 October 2011). 186

SAO Report (note 56), 49.

187

Nuuk Declaration (note 83), 6.

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holding one or more Ministerial meetings at the head of State level,188 reforming the Council’s mandate to include security and education,189 restructuring the working groups,190 and creating a category of consultative party status to enhance the role of leading non-State actors and to encourage them to contribute to an Arctic Fund.191

C. Addressing Future Ocean Governance of Areas Beyond National Jurisdiction in the Arctic

Another pressing challenge is the need to consider future directions for governance arrangements in the Central Arctic Ocean (CAO) beyond national jurisdiction. A large high seas ‘donut hole’ exists in the CAO beyond the 200 nm zones of coastal States and at least two deep seabed areas have been predicted to lie beyond national jurisdiction once the Arctic coastal States delimit the outer extent of their continental shelves.192 Multiplicities of future governance proposals have emanated from academics, nongovernmental organisations (NGOs) and others. Suggestions include: establishment of a regional fisheries management organisation;193 possible expansion of the fisheries 188 The Arctic Governance Project, Arctic Governance in an Era of Transformative Change: Critical Questions, Governance Principles, Ways Forward, Report of the Arctic Governance Project, 14 April 2010, 18, available at: http://img9.custompublish.com/getfile.php/1219555.1529.wyaufxvxuc/AGP+ Report+April+14+2010%5B1%5D.pdf?return=arcticgovernance.custompublish.com (accessed on 23 November 2011). 189

Ibid., 17.

190

For example, merging working groups with environmental action roles, specifically PAME, ACAP and EPPR and part of CAFF, Arctic Athabaskan Council, Improving the Efficiency and Effectiveness of the Arctic Council: A Discussion Paper, March 2007, 8, available at: http://arcticgovernance. custompublish.com/improving-the-efficiency-and-effectiveness-of-the-arctic-council-a-discussionpaper.4640516-142902.html (accessed on 23 November 2011). 191

Franklyn Griffiths, Towards a Canadian Arctic Strategy, Foreign Policy for Canada’s Tomorrow No. 1, Canadian International Council, May 2009, 16, available at: http://2030north.carc.org/docs/ Session%205%20-%20Canadian%20Arctic%20Strategy%20Paper%20-%20Griffiths.pdf (accessed on 23 November 2011). 192 See Ron Macnab, Outer Continental Shelves in the Arctic Ocean: Sovereign Rights and International Cooperation, Meridian (Spring/Summer 2006) 1, 2. Regarding the legal complexities and uncertainties relating to continental shelf extensions see Alexander Proelss/Till Müller, The Legal Regime of the Arctic Ocean, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68 (2008), 651. 193

See Rob Huebert/Brooks B. Yeager, A New Sea: The Need for a Regional Agreement on Management of the Arctic Marine Environment, WWF International Arctic Programme (2008), 33.

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jurisdiction of the North-East Atlantic Fisheries Commission;194 creation of a regional ocean management organisation;195 adoption of an Arctic Ocean framework convention applicable to the Arctic marine environment both within and beyond national jurisdictions;196 a regional sui generis approach whereby the five coastal States would divide the area beyond national jurisdiction (ABNJ) into national sections;197 and a freeze on jurisdictional claims to the central Arctic basin.198 While the Arctic Council has not specifically addressed the topic of ABNJ governance, representatives of the five Arctic coastal States did tangentially consider future directions in governance at their meeting in Ilulissat, Greenland in May 2008. They indicated that the Law of the Sea199 provides a solid foundation for responsible management by the five coastal States and other users of the Arctic Ocean.200 Under a Law of the Sea approach, various freedoms would be open to all States including the freedoms of navigation and fishing.201 Mineral exploration and exploitation of the deep seabed would come under the jurisdiction of the International Seabed Authority.202 Flag State jurisdiction would prevail as the prime principle for controlling

194 For a discussion of the option and its unlikely feasibility see Timo Koivurova/Erik J. Molenaar/ David L. VanderZwaag, Canada, the European Union, and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions, in: Timo Koivurova et al. (eds.), Understanding and Strengthening European Union – Canada Relations in Law of the Sea and Ocean Governance (2009), 107, 137–141. 195

See Rosemary Rayfuse, Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction, RECIEL 17 (2008) 3, 11; and id., Melting Moments: The Future of Polar Oceans Governance in a Warming World, RECIEL 16 (2007), 196, 215. 196

Timo Koivurova/Erik J. Molenaar, International Governance and Regulation of the Marine Arctic: A Proposal for a Legally Binding Instrument, WWF International Arctic Programme (2010). 197 Douglas M. Johnston, The Future of the Arctic Ocean: Competing Domains in International Public Policy, Ocean Yearbook 17 (2003) 596, 616. 198 Oran R. Young, Whither the Arctic? Conflict or Cooperation in the Circumpolar North, Polar Record 45, Issue 1 (2009), 73, 79. 199 While representatives did not specifically refer to the 1982 UN Law of the Sea Convention, the Convention largely codifies the law of the sea, United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 200 Representatives further emphasised that there was no need to develop a new comprehensive international legal regime to govern the Arctic Ocean, Ilulissat Declaration, 28 May 2008, available at: http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf (accessed on 30 October 2011). 201

Art. 87 UNCLOS.

202

Art. 157 UNCLOS.

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activities.203 Various responsibilities would fall upon States to control activities of their vessels and nationals on the high seas, for example, their duty to: conserve fish stocks204 and to cooperate with other States in seeking to manage fish stocks jointly exploited;205 undertake environmental impact assessments for planned activities, that may cause substantial pollution or significant and harmful changes to the marine environment;206 and generally to protect and preserve the marine environment.207 The role of the Arctic Council in addressing future governance arrangements for ABNJ in the Arctic Ocean remains uncertain with at least three main approaches possible. First, a ‘reactive approach’ could be followed whereby Arctic States would forestall law and policy responses until actual development pressures arise, such as proposed commercial fisheries in parts of the ABNJ. Second, a ‘global first’ strategy could be followed where Arctic States defer addressing ABNJ issues in the Arctic until after global discussions and processes result in clarifications as to legal principles208 and consensus on the appropriate international legal framework applicable to ocean areas beyond national jurisdiction.209 Third, Arctic States could follow a ‘proactive approach’ with various steps taken under the Arctic Council umbrella,

203

Art. 92 UNCLOS.

204

Art. 117 UNCLOS.

205

Art. 118 UNCLOS.

206

Art. 206 UNCLOS.

207

Art. 192 UNCLOS.

208

A major principled debate among States continues over whether marine genetic resources beyond national jurisdiction should be subject to the common heritage of mankind principle or considered as one of the freedoms of the high seas, see, e.g., David Leary, International Law and the Genetic Resources of the Deep Sea, in: Davor Vidas (ed.), Law, Technology and Science for Oceans in Globalization: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (2010), 353, 361–367; and Harlan Cohen, Some Reflections on Bioprospecting in the Polar Regions, in: id., 339, 351. 209 The need for an implementation agreement on high seas marine biodiversity is subject to ongoing debate and the ad hoc Open-ended Informed Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond national jurisdiction (ABNJ WG) has held four meetings without resolving differing national views. At its last meeting in June 2011, the Working Group did make some progress on the procedural front in recommending that the UN General Assembly initiate a process for identifying gaps and ways forward in addressing marine biodiversity issues beyond national jurisdiction including through the implementation of existing instruments and the possible development of a multilateral agreement under UNCLOS. The process would take place within the ABNJ WG and through intersessional workshops, see Letter dated 30 June 2011 from the Co-Chairs of the ad hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc A/66/119 (2011), 2.

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such as: convening a workshop or workshops to discuss the preferred policy future;210 engaging non-Arctic States and actors in understanding their governance perspectives;211 establishing a task force to review law and policy options; and encouraging a precautionary moratorium on future commercial living marine resource exploitations until appropriate scientific and management parameters are in place.212

D. Strengthening the ‘Arctic Voice’ in International Fora

Many of the environmental threats to the Arctic arise largely from outside the region and an ongoing challenge is to translate the seriousness of Arctic human and environmental stresses into effective law and policy responses particularly at the global level.213 While AMAP assessments have been influential in the negotiation of agreements relating to chemicals214 and heavy metals,215 the ability for the Arctic Council to push a strong environmental agenda in global fora, besides the IMO, has been weak to non-existent. For example, adequate climate change mitigation responses, reflecting the serious Arctic consequences of melting ice and rising temperatures, have yet to be forged under the UN Framework Convention on Climate Change (UNFCCC).216 210

Various futures might be envisioned including commercialisation, preservation and conservation.

211

On the need for greater engagement with the European Union in particular see Timo Koivurova et al., The Present and Future Competence of the European Union in the Arctic, Polar Record (2011), available on CJO 2011doi:10.1017/S0032247411000295. 212 For such a precautionary approach suggestion see The Aspen Institute, The Shared Future: A Report of the Aspen Institute Commission on Arctic Climate Change (2011), 5, available at: http:// www.aspeninstitute.org/sites/default/files/content/docs/pubs/Aspen_Climate_Change_Report_2011. pdf (accessed on 23 November 2011). 213

VanderZwaag/Huebert/Ferrara (note 1); Young (note 19), 334.

214

See David L. Downie/Terry Fenge (eds.), Northern Lights Against POPs: Combating Toxic Threats in the Arctic (2003). 215 For example, AMAP mercury assessments have fed into the decision of the UN Environmental Programme Governing Council in 2009 to develop a global legally binding instrument on mercury and subsequent negotiations with a goal of a final agreement in 2013. UNEP, The Negotiating Process, available at: http://www.unep.org/hazardoussubstances/Mercury/Negotiations/tabid/3320/Default. aspx (accessed on 24 August 2011). 216 At the Nuuk meeting, Ministers merely confirmed the commitment of all Arctic States to work together and with other countries to implement the agreements reached in Cancun by the next climate talks in Durban, South Africa, and urged all parties to the United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1771, 107 (UNFCCC) to take urgent action to meet the longterm goal of holding the increase in global average temperature below 2° above pre-industrial levels,

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In light of the large number of chemicals being found in the Arctic with bioaccumulation potential which are not subject to international controls, there is a need to consider more proactive approaches to chemicals management.217 The Council’s Arctic Ocean Review project holds considerable promise to help mobilise an Arctic Council agenda for taking action at the global and regional levels to better protect Arctic communities and their environment. The Phase II report expected to be published in 2013 has the development of options to strengthen international agreements and measures as one of its major aims.218 However, it remains to be seen how influential the AOR report and implementation follow-ups will be. Final AOR recommendations are expected to be negotiated by representatives of the eight Arctic States. As a consensus-based, discussion forum, the Arctic Council is limited by the political views and sensitivities of its eight Member States and reaching consensus on a common voice may be difficult. Furthermore, it is Member States that are parties to international agreements and possess membership in international organisations, not the Arctic Council itself. Conceptualising how the Council might best find ways to make the voice of the Arctic heard in international settings is difficult.219 Suggestions have included the establishment of an International Cooperation Working Group or a coordinating committee for external relations220 and a joint working group on the voice of the Arctic among key partners.221

Nuuk Declaration (note 83), 4. On the inadequacy of mitigation efforts see Meinhard Doelle, The Climate Change Regime and the Arctic Region, in: Koivurova/Keskitalo/Bankes (note 19), 27. 217 For a recent review of more precautionary ways forward including the possibility of a global reverse listing approach where only chemicals on a ‘safe list’ would be allowed to be produced and marketed, see David L. VanderZwaag, The Precautionary Approach and the International Control of Toxic Chemicals: Beacon of Hope, Sea of Confusion and Dilution, Houston Journal of International Law 33 (2011), 605. 218

PAME (note 167), 26.

219

Young (note 14), 13.

220

Koivurova (note 1); VanderZwaag/Huebert/Ferrara (note 1), 177.

221

Partners might include the Indigenous Peoples Secretariat, the Executive Committee of the Northern Forum and Senior Arctic Officials of the Arctic Council, Young (note 14), 18.

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Arctic Council Communication and Outreach Guidelines, adopted at the Nuuk Ministerial meeting in 2011, may assist to some extent.222 These Guidelines give the SAO Chair the key role of disseminating information and appearing at conferences, seminars and meetings of international organisations in order to increase the profile of the Arctic Council. However, in communication on behalf of the Arctic Council, the Chair is to confine comments to factual information and agreed positions. When faced with inquiries to which a common position cannot be obtained, the Chair must make it clear that any communication made is on behalf of the Chairmanship and not the Council.223

IV. Conclusion After fifteen years of existence, the Arctic Council, often criticised for its soft law status and structural limitations,224 certainly has evolved from being just a ‘study and talk’ venue to a policy shaping and even law-making forum. The Arctic Marine Shipping Assessment represented a significant shift with its seventeen recommendations leading to concrete follow-up actions at the global, regional and national levels.225 The use of task forces to actually negotiate instrument texts under the auspices of the Council has become an innovation with a Search and Rescue Agreement concluded in May 2011 and a further instrument on regional emergency preparedness and response under development. A sea of governance challenges still confronts the Arctic Council. Those challenges include: full implementation of existing commitments and recommendations; completing the Council’s restructuring; addressing future ocean governance of areas beyond national jurisdictions; and strengthening the influence of Arctic perspectives in international fora.

222 Arctic Council, Report on Communication and Outreach Guidelines, 21 March 2011, available at: http://arctic-council.npolar.no/en/meetings/2011-nuuk-ministerial/docs/ (accessed on 2 November 2011). 223

Ibid., 1.

224

Koivurova (note 1).

225

Arctic Council (note 98).

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An apt phrase that captures the essence of how the Arctic Council is faring after fifteen years is ‘a work in progress’. The Council continues to flexibly and incrementally evolve on many fronts through task forces, assessments, reviews, expert groups, work-plans and other plans.226 Many issues have yet to be addressed by the Council, including bioprospecting and geoengineering,227 and harmonised national regulatory approaches have yet to be forged particularly in the area of oil and gas regulation. Whether the Council will be able to adequately stem the powerful tides of climate change and globalisation has yet to be answered.

226

On the innovative and flexible nature of the Arctic Council with regulatory arrangements being developed as needed see Oran R. Young, Whither the Arctic 2009? Further Developments, Polar Record 45, Issue 2 (2009), 179; and Young (note 19), 333. 227 See Bjørnar Egede-Nissen/Henry David Venema, Desperate Times, Desperate Measures: Advancing the Geoengineering Debate at the Arctic Council, August 2009, available at: http://www.iisd.org/ pdf/2009/desperate_times_desperate_measures.pdf (accessed on 23 November 2011).

The Arctic and Antarctic Regimes and the Limits of Polar Comparativism TIM STEPHENS(

ABSTRACT: The Arctic and Antarctic share many similar ecological features yet are subject to radically different governance arrangements at international law. Whereas the Antarctic Treaty System (ATS) is a legally-binding and heavily entrenched regulatory regime, the arrangements in the Arctic are ‘softer’ and less centralized in an institution with the capacity to regulate the full range of Arctic activities. The ATS is embraced by a wide cross-section of the international community, while the Arctic Council and the even smaller group of Arctic Ocean littoral States have asserted the primacy of their influence in the Arctic region. Commentators on Arctic affairs frequently look South at the ATS as a template for more effective pan-Arctic governance. This interest has intensified significantly in recent years as the visible effects of climate change in the Arctic open up new possibilities for navigation, fishing, mining, tourism and scientific research (both pure and applied). Against the backdrop of resurgent interest in replicating the ‘Antarctic model’ in the Arctic, this article assesses whether the limits have in fact been reached for a useful comparative assessment of the polar regimes. It contends that in structural underpinnings the governance futures of the two regimes have bifurcated, and that there is next to no prospect of an ‘Arctic Treaty System’ to mirror the ATS. KEYWORDS: Antarctic, Antarctic Treaty System, Arctic, Arctic Council, regional governance, law of the sea

I. Introduction The Arctic and the Antarctic, the two largest components of the earth’s cryosphere, have many similar physical and ecological attributes, and inevitably demand attention to cognate governance challenges. Yet the two regions have been treated very differently ( BA(Hons) LLB(Hons) Syd. M. Phil Cantab PhD Syd. Associate Professor and Co-Director, Sydney Centre for International Law, Faculty of Law, University of Sydney. Thanks are extended to Jacinta Mulders and Georgina Hutton for their research assistance. The author acknowledges the valuable collaboration with Alan Hemmings and Donald R. Rothwell that inspired aspects of this article.

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in international law. The Antarctic Treaty1 and associated agreements that make up the Antarctic Treaty System (ATS) are widely recognised as success stories in international law and relations. They establish a sophisticated and stable regime addressing fundamental questions of sovereignty and issues of polar management, including scientific research, demilitarisation, marine resources, and environmental protection.2 By contrast, the Arctic is the subject of only a primitive system of international governance, with no firm legal structure, or regulatory functions assumed by a regional body, and only limited capacity to influence the development of Arctic policy. For this reason commentators on polar affairs have long advocated for greater multilateral engagement in the Arctic in order to establish an integrated and effective management regime that might mirror some or all of the key elements of the ATS. This petition appears on its face more compelling in the 21st century than it has ever been as the effects of climate change challenge the environmental, political and legal status quo in the Arctic.3 The Antarctic is experiencing warming and the effects that flow from it,4 however the biophysical changes being wrought by climate change are more visible in the Arctic5 and the need for effective ‘climate governance’ is more crucial there.6 The period between 2005 and 2010 was the warmest on record in the Arctic, and the Arctic Ocean is likely to be nearly ice-free in summer within the next 30 to 40 years.7 The retreat of sea ice, which reached a new low in 2011,8 has inevitably raised the prospect that the Arctic will be a new frontier for navigation, fishing, mining and tourism, activities that have been kept in check by an unforgiving and frozen environment. Arctic littoral States have begun to respond to this new environmental reality by safeguarding their rights to Arctic seabed resources by defining the 1

Antarctic Treaty, 1 December 1959, UNTS 402, 71.

2

Donald R. Rothwell, The Polar Regions and the Development of International Law (1996).

3

Duncan French/Karen Scott, International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?, Melbourne Journal of International Law 20 (2009), 631. 4 Antarctic Climate and Ecosystems CRC, Position Analysis: Climate Change and the Southern Ocean (2011). 5

John E. Walsh, Comparison of Arctic and Antarctic Climate Change, Present and Future, Antarctic Science 21 (3) (2009), 179. 6 Timo Koivurova/E. Carina H. Keskitalo/Nigel Bankes (eds.), Climate Governance in the Arctic (2008). 7 8

Arctic Monitoring and Assessment Programme, Snow, Water, Ice, Permafrost in the Arctic (2011).

National Snow and Ice Data Center, Arctic sea ice continues decline, 4 October 2011, available at: http://nsidc.org/news/press/20111004_MinimumPR.html (accessed on 22 November 2011).

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outer limits of their continental shelves. These developments have given rise to the popular perception that the Arctic is in the grip of a ‘land grab’ or ‘race to resources’ that could lead to instability and even conflict.9 To temper this unseemly scramble, and to address the whole gamut of interlinked Arctic issues, the Antarctic regime has attracted renewed attention as a template for Arctic governance,10 with the European Parliament in 2008 calling for “the adoption of an international treaty for the protection of the Arctic, having as its inspiration the Antarctic Treaty.”11 Against a background of resurgent interest in Arctic governance futures, this article considers whether the limits have been reached for a useful comparative assessment of the polar regimes. Setting the Antarctic and Arctic regimes side-by-side, the article examines their structural underpinnings and practice in the primary polar policy domains: regional governance, sovereignty, resource development, environmental protection, scientific research, and shipping.12 It contends that there is next to no prospect of an Arctic regime that mirrors the systemic character of the ATS. The fork in the road for the Arctic was reached at the adoption of the 2008 Ilulissat Declaration, in which the Arctic Ocean coastal States declared that they “see no need to develop a new comprehensive legal regime to govern the Arctic Ocean.”13 While this means that the Arctic and Antarctic regimes must now be treated as strangers rather than siblings when it comes to their structural underpinnings, a comparative perspective will continue to be of considerable value in testing the adequacy of each polar regime and as an inspiration for solutions to sectoral governance challenges.

9

Scott Borgerson, Arctic Meltdown: The Economic and Security Implications of Global Warming, Foreign Affairs, 87 (2) (2008), 63. 10 See e.g. Erika Lennon, A Tale of Two Poles: A Comparative Look at the Legal Regimes in the Arctic and the Antarctic, Sustainable Development Law and Policy 32 (2007–2008), 32. 11

European Parliament, Resolution of 9 October 2008 on Arctic Governance, para. 15.

12

These are identified in the Arctic by Ian G. Brosnan/Thomas M. Leschine/Edward L. Miles, Cooperation or Conflict in a Changing Arctic?, Ocean Development and International Law 42 (2011), 173. Note that in the Arctic an additional issue to be addressed is the interests of its indigenous peoples. 13

Ilulissat Declaration, 28 May 2008, available at: http://www.oceanlaw.org/downloads/arctic/ Ilulissat_Declaration.pdf (accessed on 16 December 2011).

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II. The Antarctic Regime The defining geographical feature of the Antarctic is the Antarctic continent itself, most of which falls within the Antarctic Circle. Unlike the Arctic where most of the territory is part of the metropolitan landmasses of Arctic States, most of the Antarctic continent is extremely remote. Ecologically the Antarctic bioregion extends from the continent into the sea, taking in areas of adjacent seas in the Southern Ocean extending beyond the sea-ice fringing the continent and well into the Southern Temperate Zone. A key biophysical boundary that distinguishes the Antarctic is the Antarctic Convergence or Polar Front, variably occurring between 45°S and 60°S, where colder Antarctic waters meet warmer northern waters. The Antarctic regime benefits from two legal definitions of its spatial extent. The more restrictive of these is found in the Antarctic Treaty which defines its area of operation to be south of 60°S,14 which captures the landmass and also significant ocean areas. This ‘Antarctic Treaty Area’ (ATA) sets the boundary which applies in respect of all but one of the treaties that make up the Antarctic Treaty System (ATS). The exception is the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR).15 It adopts a more northerly boundary, extending its operation to the ‘CCAMLR boundary’, a saw-toothed circumpolar line that roughly approximates the Antarctic Convergence16 and better accommodates the entirety of the Antarctic marine ecosystem than the 60°S line of latitude. The ATS also recognises the need to protect the Antarctic ecosystem on land and at sea as a whole. Hence, the central environmental treaty within the ATS, the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol)17 and its six Annexes. While the Environmental Protocol formally applies only within the ATA, it states that its purpose is to “protect the Antarctic environment and dependent and associated ecosystems,” an objective that can only be achieved by applying to some activities north of 60°S. 14

Art. 6 Antarctic Treaty.

15

Convention for the Conservation of Antarctic Marine Living Resources, 20 May 1980, reprinted in: ILM 19 (1980), 841 (CCAMLR). 16 17

Art. 1 (4) CC AMCR.

Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, reprinted in: ILM 30 (1991), 1491 (Environmental Protocol).

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A. Governance

The governance framework for the Antarctic is provided by the ATS, which is built around the Antarctic Treaty. The original parties to the Antarctic Treaty were the twelve States which participated in the Antarctic Conference: Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom and the United States. These represented those States with the most significant interests in Antarctica, including the two superpowers, and all seven States that had made territorial claims over Antarctica: Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. Although negotiated by the club of nations with significant Antarctic interests, the Antarctic Treaty is an open regime allowing any State to join, a position which differs from the Arctic Council (discussed below). Nonetheless, the Antarctic Treaty did confer some privileges upon certain States by creating a two-tier membership structure – Antarctic Treaty Consultative Parties (ATCPs) and non-consultative parties. The ATCPs are the original members in addition to those States subsequently joining the treaty that have demonstrated an interest in the Antarctic by undertaking substantial research activity there.18 There are now 28 ATCPs and these members are entitled to attend and to participate in decision-making at Antarctic Treaty Consultative Meetings (ATCMs). The twenty non-consultative parties may attend ATCMs but are not permitted to vote on decisions. The Antarctic Treaty has been reviewed extensively, and it is necessary for the purposes of this article only to note its core features. First, it declares that Antarctica shall be used exclusively for peaceful purposes, and rules out the deployment of military forces on Antarctica unless used for scientific research or other peaceful purposes.19 Second, the Treaty seeks to promote freedom of scientific investigation and to that end requires States to co-operate in their research endeavours to the greatest extent feasible.20 Third, and most critically, the Treaty includes a carefully drafted provision that places sovereign claims in abeyance.21

18

Art. 9 (2) Antarctic Treaty.

19

Art. 1 Antarctic Treaty.

20

Arts. 2 and 3 Antarctic Treaty.

21

Art. 4 Antarctic Treaty.

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One of the most significant features of the Antarctic Treaty is that it promotes an evolving regime for addressing governance challenges as they arise. It laid legallybinding foundations for what was to become the ATS which was first defined in clear legal terms in the Environmental Protocol as “the Antarctic Treaty, the measures in effect under the Treaty, its associated separate international instruments in force and the measures in effect under those instruments.”22 From 1959 onwards the Antarctic regime was developed first through the adoption of recommendations by ATCMs, including the 1964 Agreed Measures on the Conservation of Antarctic Fauna and Flora.23 Later the ATS was augmented by new treaties, the first being the 1972 Convention for the Conservation of Antarctic Seals (CCAS)24 and later the CCAMLR and the Environmental Protocol. The original ‘constitutional moment’ for governance in the Antarctic, the adoption of the Antarctic Treaty, occurred at a time of high tensions over the potential militarisation of the continent and fractious disputes over sovereignty. However there was a second turning point of similar significance, namely the adoption in 1991 of the Environmental Protocol which resolved the uncertainty surrounding the most significant issue not addressed in 1959, the question of Antarctic minerals, and also established a comprehensive framework for Antarctic environmental management. In terms of the institutions or processes of governance, the Antarctic Treaty provided for regular ATCMs to discuss Antarctic affairs and to agree on regulatory measures as needed. The Environmental Protocol also established a forum for the governance of Antarctic environmental matters, the Committee on Environmental Protection (CEP), the function of which is “to provide advice and formulate recommendations to the Parties in connection with the implementation of this Protocol, including the operation of its Annexes.”25 Among other things the CEP considers Environmental Impact Assessments (EIAs) in relation to activities that may affect the

22

Art. 1 (e) Environmental Protocol.

23

Agreed Measures on the Conservation of Antarctic Fauna and Flora, 1964, ATCM III–VIII (ATCM and CEP documents are available via: http://www.ats.aq/index_e.htm). 24 Convention on the Conservation of Antarctic Seals, 1 June 1972, reprinted in: ILM 11 (1972), 251 (CCAS). 25

Art. 12 Environmental Protocol.

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Antarctic environment pursuant to Annex I of the Protocol and guidelines adopted by the ATCM in 2005.26 There was no standing body to assist ATCPs in the management of the Antarctic until 2004 when the Antarctic Treaty Secretariat was established. The functions of the Secretariat are to support the annual meetings of the ATCMs and the CEP, to assist the exchange of information between parties, to collect and archive ATCM and CEP documentation, and to disseminate information about the ATS to the world at large.27 Despite the importance of the Antarctic to the global environment the process of Antarctic governance through the ATS and its institutions is remarkably free of controversy and relatively low-key, although as Hemmings has noted the limited intensity of the governance structures is open to criticism for being at times both “discontinuous” and “fragmented.”28

B. Sovereignty

Article IV of the Antarctic Treaty diffuses the sovereignty question for the life of the Treaty; existing claims are neither recognised nor rejected, while no new claims or the enlargement of existing claims are permitted. It is this delicate and ambiguous compromise that is central to the stability of the ATS, allowing parties to manage Antarctic affairs in a co-operative manner without having to defend or protest territorial interests.29 Although disputes over Antarctic sovereignty have been deferred, they have not been resolved, and the terms of the postponement are open to interpretation. This has been made apparent by the establishment by Antarctic claimants of maritime zones adjacent

26

ATCM XXVIII, Resolution 4 (2005).

27

Patrizia Vigni, The Secretariat of the Antarctic Treaty: Achievements and Weaknesses three Years after its Establishment, in: Gillian Triggs/Anna Riddell (eds.), Antarctica: legal and environmental challenges for the future (2007), 86. 28

Alan D. Hemmings, Globalisation’s Cold Genius and the Ending of Antarctic Isolation, in: Lorne K. Kriwoken/Julia Jabour/Alan D. Hemmings (eds.), Looking South: Australia’s Antarctic Agenda (2007), 176, 186. 29

Gillian D. Triggs, International Law and Australian Sovereignty (1986), 137.

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to their Antarctic territories.30 These claims have been made purportedly in compliance with both the United Nations Convention on the Law of the Sea (UNCLOS) and the Antarctic Treaty. Though the Antarctic Treaty prohibits the making of new territorial claims or the enlargement of existing claims, it does not prohibit the affirmation of existing entitlements. This is the argument made with some confidence by claimants with regards to the continental shelf, which belongs ab initio and ipso facto to coastal States.31 Whilst these claims have attracted protests from several non-claimants including the United States, these disagreements have never been escalated to a legal dispute. However, after having made maritime claims from the 1960s onwards, Antarctic claimants are now testing the limits of the ATS compromise on sovereignty, and the patience of non-claimants, in submitting data on the extent of their Antarctic continental shelves through the process established by the UNCLOS. The making of Antarctic maritime claims has not produced unresolvable problems for the ATS for the primary reason that the claims have essentially been on paper only. While maintaining their entitlement to sovereignty as coastal States, with all that entails for the claiming of maritime zones, the claimants have not sought to assert jurisdiction inconsistently with the Antarctic Treaty.32 For example, the Australian government has not interdicted Japanese-flagged vessels undertaking whaling research in the exclusive economic zone (EEZ) offshore the Australian Antarctic Territory. This is despite the fact that this activity has been found by an Australian court to be in breach of Australian law which prohibits whaling throughout the Australian Whale Sanctuary, including any EEZ claimed from Australia’s Antarctic Territory.33 As Japan has consistently protested Australia’s claim to Antarctic maritime zones, the Australian government has sought to quarantine Antarctic issues 30 Patrizia Vigni, Antarctic Maritime Claims: ‘Frozen Sovereignty’ and the Law of the Sea, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001), 85. 31

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 397 (UNCLOS), Art. 77 (3). Stewart B. Kaye, The outer continental shelf in the Antarctic, in: Oude Elferink/Rothwell (note 30), 125. 32

Tim Stephens/Ben Boer, Enforcement and Compliance in the Australian Antarctic Territory: Legal and Policy Dilemmas, in: Kriwoken/Jabour/Hemmings (note 28), 54, 58 et seq. 33 See Federal Court of Australia, Humane Society International Inc v. Kyodo Senpaku Kaisha Ltd, 15 January 2008, FCA 3, available at: http://www.austlii.edu.au/au/cases/cth/FCA/2008/3.html (accessed on 15 December 2011). See Natalie Klein/Nikolas Hughes, National Litigation and International Law: Repercussions for Australia’s Protection of Marine Resources, Melbourne University Law Review 33 (2009), 163, 182–189.

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entirely from the whaling controversy, mounting its 2010 case against Japan in the International Court of Justice primarily on the basis of alleged breaches of the International Convention on the Regulation of Whaling (ICRW).34 The second reason why no open challenge has been made to the Antarctic Treaty’s compromise on sovereignty is because Antarctic claimants have mostly (though not uniformly) shown exceptional deference to the letter and spirit of the ATS, evident in the careful way submissions have been made to the Commission on the Limits of the Continental Shelf (CLCS) on Antarctic continental shelf areas. Moreover, there has been restraint on the part of non-claimants who have not objected to Antarctic maritime claims. This is seen in the tolerance towards ‘claims’ to extended continental shelves from sub-Antarctic islands even though these claims project in some cases well within the ATA, and are at odds with the ATS.35

C. Resource Development

1. Living Resources The Southern Ocean around Antarctica contains rich fishing grounds and there is a lengthy history of the exploitation of Antarctic marine living resources. Sealing is comprehensively regulated under the CCAS, but the Treaty has fallen into disuse since the cessation of commercial sealing in the Antarctic.36 Commercial whaling has also been phased out in the Southern Ocean, as a result of the moratorium adopted in 1982 and the establishment of the Southern Ocean Sanctuary in 1994, both under the ICRW. The only whaling that continues is conducted by Japan, relying on Article 8 ICRW which allows parties to take whales for the purposes of scientific research. This highlights one of the few gaps in the ATS framework for managing living resources. The prevailing view among ATCPs, based on a provision

34

International Convention on the Regulation of Whaling, 2 December 1946, UNTS 161, 72.

35

Alan D. Hemmings/Tim Stephens, Reconciling regional and global dispensations: the implications of sub-Antarctic extended continental shelf penetration of the Antarctic Treaty Area, New Zealand Yearbook of International Law 7 (2009), 273. 36

Rothwell (note 2), 323.

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of the Antarctic Treaty that safeguards high seas freedoms,37 and the Final Act of the Environmental Protocol,38 is that whaling activities should not be considered under the umbrella of the ATS. However, given the importance of cetaceans to the Antarctic marine ecosystem, and the potential direct and indirect impact of whaling operations, arguably the ATS can and should be charged with overseeing whaling in the ATA. As regards fisheries, CCAMLR establishes an extensive regulatory framework that applies to all Antarctic marine living resources found south of the Antarctic Convergence, including finfish, molluscs and crustaceans.39 CCAMLR is generally judged to have been an effective regional fisheries management organisation (RFMO), having adopted conservation measures to protect heavily targeted species and associated and dependent organisms. Nevertheless, illegal, unreported and unregulated fishing remains a challenge that has only been partially addressed.40 Another challenge is harmonising CCAMLR with the new generation of international fisheries agreements most notably the Fish Stocks Agreement which adopts a precautionary approach to the management of highly migratory and straddling fish stocks.41

2. Non-Living Resources The Antarctic Treaty had not dealt with the issue of mineral resources, and there was considerable controversy as to whether mining in the Antarctic should proceed given that it would be inconsistent with the growing desire to protect the Antarctic environment. At ATCM IX held in 1977, Recommendation IX-1 was adopted which placed a moratorium on mining pending agreement on an appropriate governing regime. 37 Art. VI Antarctic Regime: “nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within the [ATA]”. 38 Final Act of the 11th Antarctic Treaty Special Consultative Meeting, 1991, reprinted in: ILM 30 (1991), 1460, para. 7. 39

Art. 1 (2), CCAMLR.

40

Rachel J. Baird, Aspects of Illegal, Unreported and Unregulated Fishing in the Southern Ocean (2006).

41

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, reprinted in: ILM 34 (1995), 1542 (Fish Stocks Agree-ment). See Gregory Rose/Ben Milligan, Law for the Management of Antarctic Marine Living Resources: From Normative Conflicts towards Integrated Governance?, Yearbook of International Environmental Law 20 (1) (2009), 41.

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From 1982 to 1988 a special ATCM was held to discuss the mining issue which resulted in the conclusion of the 1988 Convention on the Regulation of Antarctic Mineral Resources (CRAMRA).42 It provided for an internationalised system for Antarctic mining similar to that applicable under Part IX UNCLOS for deep seabed mining. There was a complete turn of events in 1989 when two claimants and original ATCPs, Australia and France, stated that they would not join CRAMRA and would instead push for a comprehensive regime for protecting the Antarctic environment. This led to the abandonment of CRAMRA and the adoption of the Environmental Protocol which provided in Article 7 that “[a]ny activity relating to mineral resources, other than scientific research, shall be prohibited.” This prohibition applies not only to the Antarctic continent but throughout the ATA including the continental margin, and will remain in force until such time as the Protocol is amended to overturn it. Rolling back the mining ban is possible at any time, but is not likely until the 2048 review conference at the earliest.43 Despite the clear prohibition on Antarctic mining there remains conjecture in policy circles and among commentators that Antarctic claimants and non-claimants ATCPs have growing interests in the continent’s resource potential.44 This speculation has inevitably been fuelled by the intensification of China’s research activities in Antarctica and the submissions being made by Antarctic claimants to the CLCS. All seven Antarctic claimants are parties to the ATS and to the LOSC, and assert that by virtue of being coastal States they have the entitlement under the Law of the Sea to define their continental shelves where the margin extends from the landmass beyond 200 nm, subject to the formulae set out in Article 76 UNCLOS. The UNCLOS does not leave it to coastal States to establish outer continental shelf, but requires them to submit information to a technical body, the CLCS.45 Once it has scrutinised the data received, the CLCS makes recommendations and the outer limits then established are final and binding.46 42

Convention on the Regulation of Antarctic Mineral Resources, 2 June 1988, reprinted in: ILM 27 (1988), 868. 43

Art. 24 Environmental Protocol.

44

Ellie Fogarty, Antarctica: Assessing and Protecting Australia’s National Interests, 2011, available at: http://www.lowyinstitute.org/Publication.asp?pid=1661 (accessed on 22 November 2011). 45

Ted L. McDorman, The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World, International Journal of Marine and Coastal Law (IJMCL) 17 (2002), 301. 46

Art. 76 (8), UNCLOS.

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In presenting submissions, claimants have taken different approaches in addressing sovereignty issues. The first submission by a claimant was by Australia and included the continental shelf of the Australian Antarctic Territory.47 Conscious that few States recognise its Antarctic claim, Australia requested the CLCS not to consider this component of its submission for the time being. The CLCS duly avoided addressing the Antarctic data in its recommendations which otherwise accepted most of Australia’s outer continental shelf.48 Six ATCPs lodged an objection with the CLCS to Australia’s submission of Antarctic data,49 including the United States which insisted that while it did not recognise any claim to Antarctic or its continental shelf, it did acknowledge “with appreciation Australia’s request to the Commission that it not take any action on that portion of its submission relating to areas of the seabed and subsoil adjacent to Antarctica.”50 Norway adopted the Australian approach in its May 2009 partial submission relating to its Antarctic possessions, the subantarctic island Bouvetøya (Bouvet) and its continental territory of Dronning Maud Land.51 Norway included Antarctic data but requested the CLCS not to take any action for the time being in relation to it. Three other claimants have abstained from including any Antarctic data. In its 2006 submission, New Zealand made no reference to continental shelf areas offshore the Ross Dependency. New Zealand identified the “special legal and political status of Antarctica” and stated that it is open to States pursuant to the UNCLOS to make a partial submission, and that a submission relating to Antarctic shelf “may be made later.”52 The United Kingdom and France have followed the same approach in reserving their rights to make Antarctic submissions at a later date. 47 Continental shelf submission of Australia, 15 November 2004, available at: http://www.un.org/ depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_web_delivery.pdf (accessed on 22 November 2011). 48

Summary of the recommendations of the CLCS in regard to Australia’s submission, 2008, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/aus_summary_of_ recommendations.pdf (accessed on 22 November 2011). 49

Germany, India, Japan, Netherlands, the Russian Federation, and the United States.

50

Christopher C. Joyner, United States Foreign Policy Interests in the Antarctic, The Polar Journal 1 (2011), 17. 51 Continental shelf submission of Norway in respect of Bouvetøya and Dronning Maud Land, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/nor30_09/nor2009_executive summary.pdf (accessed on 22 November 2011). 52

Note to the Secretary-General of the United Nations accompanying New Zealand’s continental shelf submission, 2006, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/ nzl_doc_es_attachment.pdf (accessed on 22 November 2011).

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Because of technical and financial constraints Chile has only been able to submit ‘Preliminary Information’ to the CLCS, and while describing the Antarctic continental shelf in general terms it has indicated that it is leaving its options open whether to request the CLCS to defer consideration of Antarctic data, or reserve its rights to make a later submission.53 By contrast Chile’s neighbour Argentina took a very assertive approach,54 including the Argentine Antarctic sector and the Islas Malvinas, Georgias del Sur and Sandwich del Sur. As it contained no caveats the submission attracted extensive protest. With the exception of Argentina the CLCS process has been handled with great delicacy and Antarctic claimants have walked a fine line between asserting Law of the Sea rights but not so as to undermine the ATS. On one hand claimants had little choice but to follow the CLCS process given that the UNCLOS directs coastal States to make submissions. However the practice also reflects an unmistakeable trend in Antarctic affairs for claimants to seek to ingrain their assertions of sovereignty and is antithetical to the animating spirit of the ATS.

D. Environmental Protection

A signal strength of the ATS is its governance of environmental issues. Environmental protection has been a leitmotif of Antarctic cooperation from the 1960s. It rose to particular prominence with the Environmental Protocol which committed parties to “comprehensive protection of the Antarctic environment and dependent and associated ecosystems” and also designated “Antarctica as a natural reserve, devoted to peace and science.”55 The Environmental Protocol adopts an ecosystem approach applicable throughout the ATA. It requires parties to cooperate in planning and conducting activities in the

53

Preliminary indicative of the outer limits of Chile’s continental shelf, 2009, available at: http:// www.un.org/depts/los/clcs_new/submissions_files/preliminary/chl2009preliminaryinformation.pdf (accessed on 22 November 2011). 54 Continental shelf submission of Argentina: executive summary, 2009, available at: http:// www.un.org/Depts/los/clcs_new/submissions_files/arg25_09/arg2009e_summary_eng.pdf (accessed on 22 November 2011). 55

Art. 2 Environmental Protocol.

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ATA,56 undertake EIA for potentially harmful activities according to detailed procedures,57 and established the CEP to provide advice on the implementation of the Protocol.58 Drawing from the model provided by the Antarctic Treaty itself, it also sets up a system of inspection to ensure compliance.59 One of the most important features of the Environmental Protocol is its Annexes that form an integral part of the Protocol and have been significantly developed over time.60 In addition to EIA (Annex I), these deal with the conservation of Antarctic Fauna and Flora (Annex II), waste disposal (Annex III), marine pollution (Annex IV), protected areas (Annex V) and liability arising from environmental emergencies (Annex VI). Although legitimate questions are raised about operational issues in the implementation aspects of the Environmental Protocol (such as EIA61), and how it deals with specific activities (such as tourism62), and threats (such as invasive species63), overall it provides a comprehensive regulatory system. However, there are significant challenges particularly in climate change and ocean acidification.64 While climate change has been a major focus of Antarctic research, and has attracted considerable attention within the CEP,65 there have been limited policy initiatives and no concrete legal responses.66 This illustrates that even though the ATS is a highly developed regime it still operates in a global context in which climate mitigation policy is determined under the umbrella of exogenous regimes. As with the interaction of the ATS and the law of the sea, the ATS is not immune from several regime interplay issues that are especially pronounced in the Arctic context. 56

Art. 6 Environmental Protocol.

57

Art. 8 Environmental Protocol.

58

Art. 12 Environmental Protocol.

59

Art. 14 Environmental Protocol. See further Stephens/Boer (note 32).

60

Art. 9 Environmental Protocol.

61

See Alan D. Hemmings/Lorne K. Kriwoken, High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the Comprehensive Environmental Evaluation Process, International Environmental Agreements: Politics, Law and Economics 10 (3) (2010), 187. 62

Murray P. Johnson/Lorne K. Kriwoken, Emerging Issues of Australian Antarctic Tourism: Legal and Policy Directions, in: Kriwoken/Jabour/Hemmings (note 28), 85. 63 Sandra Potter, Protecting Antarctica from Non-Native Species: The Imperatives and the Impediments, The Yearbook of Polar Law (YPL) 1 (2009), 383. 64

French/Scott (note 3).

65

See Report of the Committee for Environmental Protection, CEP XIV, 2011, 38.

66

French/Scott (note 64), 649–650.

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E. Shipping

The Southern Ocean has not been used for significant merchant traffic since the Clipper Route fell into disuse with the opening of the Panama Canal in 1914. Nonetheless, the number and type of fishing, tourist and research vessels operating in the Antarctic has grown significantly in recent times. This increased traffic poses risks for the Antarctic environment, as illustrated by several casualties involving fishing and cruise vessels, including the sinking of the MS Explorer in 2007. As with the Arctic, shipping in Antarctica must confront not only challenging sea conditions but also a fragile environment in which the effects of even small-scale oil spillage incidents can be severe. Moreover, the remoteness of the region means that search, rescue and clean-up responses are difficult and expensive. The Arctic and the Antarctic have been the subject of attention at the International Maritime Organization (IMO) for several decades to improve shipping safety. The IMO has adopted specific rules for shipping safety and marine environmental protection. Guidelines were issued for ships operating in Arctic ice-covered waters in 2002,67 and in 2004 the ATCM requested that the IMO consider extending the Guidelines to the ATA, and to this end prepared amendments to the Guidelines that it adopted at ATCM XXVII. Nonetheless, it was not until 2009 that the IMO Assembly adopted revised guidelines that applied to both Arctic and Antarctic areas: the Guidelines for Ships Operating in Polar Waters.68 While providing extensive safeguards for protecting the Antarctic environment the efficacy of the guidelines is limited because they are recommendatory. Turning the guidelines into a legally binding ‘Polar Code’ is currently being negotiated within the IMO. Some issues remain, they include: the geographical coverage (whether in the Antarctic they will apply only to the ATA or to the Antarctic convergence), and the type of vessels to be included (whether to encompass all vessels including fishing vessels, or only larger vessels). Even in the absence of the polar guidelines or code, Antarctic waters have been the target of IMO regulatory efforts as early as 1990 when the Antarctic was designated a special area under MARPOL 73/7869 which entails stricter rules for the prevention 67

MSC/Circ.1056 MEPC/Circ.399 of 23 December 2002, approved by the MSC in 2002.

68

IMO Doc. A 26/Res.1024 of 2 December 2009.

69

International Convention for the Prevention of Pollution from Ships as Modified by the Protocol of 1978 Relating Thereto, 17 February 1978, UNTS 1340, 62.

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of marine pollution.70 And in August 2011 a new chapter within MARPOL Annex I entered into force, prohibiting the use or transport of heavy fuel oil in the Antarctic.71

III. The Arctic Regime The Arctic region comprises a partially enclosed sea, the Arctic Ocean, surrounded by two continental landmasses, North America and Eurasia, which intrude within the Arctic Circle. Unlike the Antarctic the Arctic is therefore dominated by sea and girt by land. Eight States have clearly recognised territories within the Arctic Circle: Canada, Denmark (Greenland), Finland, Iceland, Norway, Russia, Sweden and the United States. The political, geographical, cultural and legal extent of the Arctic is highly contextdependent,72 and this has been a major impediment to the emergence of a region-wide Arctic regime. There is little guidance from the few treaties specifically applicable in the region. The Agreement on the Conservation of Polar Bears73 refers to the ‘Arctic Region’ without defining its spatial extent. The recently agreed Aeronautical and Maritime Search and Rescue Agreement (AMSAR),74 discussed below, is more helpful. While not defining the Arctic, its ‘areas of application’ throughout the Arctic Ocean and in some places as far south as 50°N provide guidance on the area of primary management concern. Politically, it is the Arctic Circle that has tended to be the dominant defining boundary for the region as only States having territorial sovereignty above the Circle are permitted to participate in the Arctic Council. To capture the main climatic, ecological, political and other elements that make up the Arctic region Rothwell has suggested that the latitude of 60°N be used.75 Not only does this offer a convenient mirror to the ATA (south of 60°S) but it generally 70

Resolution MEPC.42(30), adopted on 16 November 1990.

71

See IMO Press briefing of 29 July 2011, available at: http://www.imo.org/MediaCentre/Press Briefings/Pages/44-MARPOL-amends.aspx (accessed on 22 November 2011). 72

French/Scott (note 64), 640.

73

Agreement on the Conservation of Polar Bears, 15 November 1973, reprinted in: ILM 13 (1974),

13. 74 Aeronautical and Maritime Search and Rescue Agreement (AMSAR), 12 May 2011, available at: http://library.arcticportal.org/1474/1/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr2011.pdf (accessed on 22 November 2011). 75

Rothwell (note 2), 24.

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approximates the ecological boundary at the tree line,76 and another important Arctic biophysical boundary, the 10°C isotherm.

A. Governance

It is difficult to speak of an Arctic ‘regime’ in legal terms as there is no solidary, overarching, legal architecture for the management of the land and sea areas within the Arctic region.77 Primarily because there are no fundamental disputes over Arctic sovereignty,78 there is no strong tradition of Arctic co-operation,79 and the picture that emerges is of a complex and unwieldy set of political and legal institutions.80 Politically, Arctic governance is pursued unilaterally and through two, partially overlapping, groupings of States with Arctic interests. The first is the Arctic Eight, those States with territory reaching northwards into the Arctic Circle, and are members of the Arctic Council: Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States. The second group is the Arctic Five, a more select club of Arctic nations with coasts bordering the Arctic Ocean: Canada, Denmark, Norway, Russia and the United States. Initial efforts to establish a pan-Arctic system for co-operation culminated in the adoption of the Arctic Environmental Protection Strategy (AEPS) by the Arctic Eight in 1991.81 Although not legally binding (and indeed because of its soft-law status) the AEPS was able to include far-reaching objectives, including the elimination of pollution in the Arctic, and it set out a system of action plans to achieve this goal. The AEPS was intended to be a forum for the development of environmental

76 Timo Koivurova, Do the Continental Shelf Developments Challenge the Polar Regimes?, YPL 1 (2009), 477, 478. 77

Carina Keskitalo, International Regime-Building: Development of the Arctic as an International Region, Cooperation and Conflict 42 (2007), 187. 78 Donald R. Rothwell, The Arctic in International Affairs: Time for a New Regime?, 10 December 2008, available at: http://ssrn.com/abstract=1314546 (accessed on 22 November 2011). 79 Donald R. Rothwell, International Law and the Protection of the Arctic Environment, International and Comparative Law Quarterly 44 (1995), 280. 80

Rosemary Rayfuse, Melting Moments: The Future of Polar Oceans Governance in a Warming World, Review of European Community and International Environmental Law 16 (2007), 196. 81

Arctic Environmental Protection Strategy, 14 January 1991, reprinted in: ILM 30 (1991), 1624.

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policy, not a stepping-stone towards a formalised legal regime.82 The contrast with the Environmental Protocol, also adopted in 1991, could not be clearer. The next turning point in the institutionalisation of Arctic cooperation was the creation of the Arctic Council in 1996 at a meeting of the Arctic Eight in Ottawa, Canada.83 The Joint Communiqué and Declaration on the Establishment of the Arctic Council84 set out the mandate for the new body, which was to include issues of “sustainable development and environmental protection” in the Arctic and also unspecified ‘common Arctic issues’.85 As with the AEPS, the Arctic Council was not established by law or intended to adopt legally-binding decisions,86 and was devised instead as a ‘soft-law’ organisation to provide a forum for discussing Arctic issues. Somewhat akin to the ATS, within the Arctic Council there are tiers of participants. There are the core Members (the Arctic Eight), Observers (non-Arctic States, inter-governmental and non-governmental organisations) and Permanent Participants (Arctic indigenous peoples). This has meant that decision-making within the Arctic Council has been able to feel the significant influence of non-state actors having a major stake in Arctic affairs, most notably indigenous peoples who have inhabited the region for millennia.87 Despite the inclusion of indigenous voices, the Arctic Council is otherwise a closed organisation, with a small core membership of eight, and with only six non-Arctic States admitted to Permanent Observer Status (France, Germany, the Netherlands, Poland, Spain and the United Kingdom). The Council has been wary of admitting new Permanent Observers. In 2009 the Arctic Council Ministerial meeting rejected requests from China, the European Union, Italy and South Korea to become Permanent Observers and requested that they demonstrate the extent of their Arctic activities and their potential contribution to the Arctic Council. 82

Donald R. Rothwell, The Arctic Environmental Protection Strategy and International Environmental Cooperation in the Far North, Yearbook of International Environmental Law 6 (1995), 65; David D. Caron, Toward an Arctic Environmental Regime, Ocean Development and International Law (ODIL) 24 (1993), 377. 83 Declaration on the Establishment of the Arctic Council, 19 September 1996, reprinted in: ILM 35 (1996), 1382. 84

Ibid.

85

Art. 1 (a) Declaration on the establishment of the Arctic Council.

86

Evan Bloom, The Establishment of the Arctic Council, American Journal of International Law 93 (1999), 712. 87 Timo Koivurova/David L. VanderZwaag, The Arctic Council and 10 Years: Retrospect and Prospects, University of British Columbia Law Review 40 (2007), 121, 130.

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Legally the Arctic Council functions by applying existing global, regional and bilateral treaties that have relevance to the Arctic, rather than through a dedicated Arctic treaty.88 Institutionally the work of the Arctic Council has been pursued through six working groups: Arctic Contaminants Action Program (ACAP), Arctic Monitoring and Assessment Programme (AMAP), Conservation of Arctic Flora and Fauna (CAFF), Emergency Prevention, Preparedness and Response (EPPR), Protection of the Arctic Marine Environment (PAME) and Sustainable Development Working Group (SDWG). The Council has adopted various non-binding guidelines on topics such as environmental impact assessment,89 but these have had variable impact as they depend on national implementation by the Arctic Eight and there is no system of inspection as in the ATS. Two very recent developments within the Arctic Council indicate a shift in its character. The Arctic Council Secretariat, which supports the work of the Chair of the Arctic Council, initially rotated every two years along with the Chairmanship. This peripatetic arrangement led to variation in the strategic direction of the Council.90 Norway, Denmark and Sweden agreed in 2006 that for their three consecutive Chairmanships the Secretariat would be based in Tromsø, Norway. At the seventh meeting of the Arctic Council in May 2011 this de facto situation became permanent, with the Arctic Eight agreeing on a standing secretariat to be based in Tromsø from 2013. As Byers has commented, this decision “transform[s] [the Arctic Council] from an inter-governmental forum into a fully-fledged international organization.”91 However, though the Council may now have acquired international legal personality its functions have essentially remained the same as a discursive rather than regulatory body. The second development is equally if not more noteworthy. In May 2011 the Arctic Council adopted its very first legally-binding agreement: the AMSAR. The Agreement responds to the need to provide a system for search and rescue in the 88

French/Scott (note 64), 78.

89

E.g. Guidelines for Environmental Impact Assessment in the Arctic, available at: http://ceq.hss. doe.gov/nepa/eiaguide.pdf (accessed on 16 December 2011). 90 91

French/Scott (note 64), 76.

Michael Byers, Cooling Things Down: The Legalization of Arctic Security, Conference Paper, Carnegie Program on U.S. Global Engagement: A Two-Year Retrospective, 3 June 2011, available at: http:// www.carnegiecouncil.org/resources/articles_papers_reports/0102.html (accessed on 22 November 2011).

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Arctic, particularly as aeronautical and maritime traffic increases under changing climatic conditions. The Agreement sets out for each of the Arctic Eight States search and rescue regions that are defined in an Annex to the Agreement. Within these regions each party is required to establish, operate and maintain adequate and effective search and rescue capability.92 The AMSAR is only the second treaty to apply specifically to the Arctic, the other being the Agreement on the Conservation of Polar Bears, which has a limited membership (being restricted to the Arctic Five). The AMSAR is significant not only for its form as a legally-binding instrument, but also its content in which it has had to address issues of sovereignty and jurisdiction including the vexed question regarding maritime boundaries in the Arctic Ocean. Article 3 (2) goes to this point in stating that “[t]he delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States or their sovereignty, sovereign rights or jurisdiction.” This ‘without prejudice’ provision clearly has some parallels with Article IV of the Antarctic Treaty. However, its scope is far more limited, in that it does not seek to limit in any way the assertion by States of sovereignty, sovereign rights or jurisdiction, whereas this restraint upon sovereignty is at the heart of the ATS. Writing in 2007, and before the two developments just mentioned, Koivurova and VanderZwaag assessed the Arctic Council’s major achievement as changing the way in which the Arctic is perceived. Rather than being viewed as a collection of individual national sovereignties surrounding an area of high seas, the Arctic Council firmly established the notion of the Arctic as ‘a distinct political region’.93 Stokke similarly observes that the Council’s contribution has been slight in normative arrangements but strong in terms of improving knowledge of the Arctic environment.94 However, the role and relevance of the Arctic Council has been significantly undermined by separate meetings of the Arctic Five who have assumed for themselves the primary responsibility for addressing Arctic Ocean issues without including Finland, Iceland or Sweden, or the indigenous peoples of the region. This was demonstrated by the 2008 Ilulissat Declaration, the product of the first Arctic Ocean 92

Art. 3 (3) AMSAR.

93

Koivurova/VanderZwaag (note 87), 121, 159.

94

Olav Schram Stokke, Protecting the Arctic Environment: The Interplay of Global and Regional Regimes, YPL 1 (2009), 349, 369.

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conference held in the eponymous town on the west coast of Greenland.95 The Ilulissat Declaration asserted that the Arctic Five “[b]y virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean […] are in a unique position to address these possibilities and challenges.” As regards legal norms for doing so, the Ilulissat Declaration states that it is the Law of the Sea that “provides a solid foundation for responsible management” and that the IMO also has a role to play in improving the safety of Arctic shipping. Pointing to the existing framework, the Declaration proclaims that the Arctic Five “see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.” Rothwell has commented that as a result of the Ilulissat Declaration “[t]he future of the Arctic Council and its ability to represent with one voice the views of Arctic States has been cast into doubt.”96 A concomitant effect is to stifle any moves towards a comprehensive legal regime for Arctic governance that would respond to the reality that Arctic issues are interlinked. In this regard it should be recalled that when instigating the discussions that led to the Arctic Council, in 1987 Soviet Union General-Secretary Gorbachev identified a suite of interrelated issues demanding greater attention in a cooperative manner: nuclear weapons free zone, limited naval activity, peaceful cooperation in scientific research, cooperative environmental protection.97 In terms of issue-areas, the parallels with the topics for discussion at the Antarctic Conference in 1959 are striking yet the factional divisions among Arctic States now make it difficult for these to be addressed through a holistic regime.

B. Sovereignty

There has been no real dispute over sovereignty to Arctic territory on the North American or Eurasian continents. Instead the disagreements that have arisen have been over Arctic islands and maritime zones in the Arctic and neighbouring oceans. An example is disputed Norwegian sovereignty over Svalbard Island that was addressed in the 1920 Treaty Concerning the Archipelago of Spitsbergen (Svalbard

95

Ilulissat Declaration (note 13).

96

Rothwell (note 78).

97

Rothwell (note 2), 229–231.

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Treaty).98 Other sovereignty issues have similarly been resolved by bilateral agreement.99 This is seen in the 1973 Canada-Denmark Boundary Treaty100 setting a combined continental shelf EEZ delimitation line; the 1990 Bering Sea Treaty101 between the former Soviet Union and the United States that sets the boundary in the Bering Sea (with which Russia faithfully complies notwithstanding its non-ratification); the 2006 Denmark-Norway Boundary Treaty102 setting a boundary between the Norwegian Svalbard Archipelago and Greenland; and most recently the 2010 Barents Sea Treaty between Norway and Russia.103 There are few remaining sovereignty issues, and only one relating to territory, namely the tiny Hans Island between Ellesmere Island and Greenland, subject to claims by both Canada and Denmark. However, this dispute has never generated serious tension between the two States and now appears close to resolution. Since 2005 both States have been in discussions to resolve the question of sovereignty over the island and the maritime boundary in the Lincoln Sea. A joint mapping exercise is likely to lead to a resolution before 2013, the deadline by which Canada must submit information on the limits of its continental shelf to the CLCS.104 More significant sovereignty issues concern maritime areas. Several of these are generated or affected by the potential for Arctic States to claim an extended continental shelf (discussed below). An example is the unresolved boundary in the Beaufort Sea

98

Treaty concerning the Archipelago of Spitsbergen, 9 February 1920, LNTS 2, 7.

99

Byers (note 91).

100

Agreement between the Government of Canada and the Government of Denmark relating to the Delimitation of the Continental Shelf between Greenland and Canada, 17 December 1973, UNTS 950, 147. 101 Agreement between the United States of America and the USSR on the Maritime Boundary, 1 June 1990, reprinted in: ILM 29 (1990), 941. 102

Agreement between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home Rule Government of Greenland on the other hand, concerning the delimitation of the continental shelf and the fisheries zones in the area between Greenland and Svalbard, 20 February 2006, UNTS 2378, 21. 103

For commentary and for the text of the agreement see Tore Henriksen/Geir Ulfstein, Maritime Delimitation in the Arctic: The Barents Sea Treaty, ODIL 42 (2011), 1. 104 J. Ibbitson, Danish-Canadian agreement nears for Hans Island, The Globe and Mail, 27 January 2011.

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between Canada and the United States where both States have made claims to continental shelf and there is disagreement over the principles of delimitation to be applied.105 The most prominent sovereignty dispute in the Arctic concerns the Northwest Passage, a range of potentially navigable routes through Canada’s Arctic Archipelago that connects the Beaufort Sea to the Davis Strait and leads to the North Atlantic Ocean. Canada’s declaration of strait baselines along the coastal archipelago encloses the waters landwards as internal waters, whereas the United States and other maritime States insist it is an international strait.106 With the retreat of Arctic summer sea ice the passage will eventually become a trading route between East Asia and the Atlantic as opposed to the much longer voyage via the Panama Canal, although the route may become more treacherous in the shorter term with the increased presence of icebergs.107 While attracting a good deal of commentary, the Northwest Passage dispute may be more readily soluble than generally thought and may be assisted rather than hampered by changing ice conditions. Currently, the governing framework is the 1988 Cooperation Agreement between Canada and the United States108 in which the parties agree to disagree on the status of the Northwest Passage, and that all navigation by United States icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of Canada (whereby consent will not be withheld). Byers contends that the reality of climate change and increased foreign shipping including by ice-strengthened ships makes it inevitable that the agreement will be revisited and expanded.109

C. Resource Development

1. Living Resources Given the extent of ice-cover and its low productivity the Arctic Ocean is not an important fishing ground. However, there are significant fisheries in the marine areas 105

Michael Byers, Who Owns the Arctic? Understanding Sovereignty Disputes in the North (2010), 98.

106

See Donat Pharand, Canada’s Arctic Waters in International Law (2009).

107

Louise Angélique de La Fayette, Oceans Governance in the Arctic, IJMCL 23 (2008), 531, 544.

108

Agreement on Arctic Cooperation, 11 January 1988, Canada-US, UNTS 1852, 59.

109

Byers (note 91).

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further south, including in the Barents and Norwegian Seas, the Central North Atlantic, Newfoundland and Labrador Seas and the Bering Sea. These marine areas and the central Arctic Ocean all fall within the ‘AMAP Area’ identified by the Arctic Council’s Arctic Monitoring and Assessment Programme.110 There is increasing evidence that the range of Arctic fisheries are shifting, with some migrating to higher latitudes.111 Unlike most of the Southern Ocean (with the exception of EEZ areas around sub-Antarctic islands) in the AMAP Area all of the key fisheries fall within the EEZs of coastal States112 and are subject to national management. As fishers move their efforts northwards, there are only four relatively small areas that are high seas for which international management will be needed, they are: the central Arctic Ocean, the ‘Banana Hole’ in the Norwegian Sea, the ‘Loop Hole’ in the Barents Sea, and the ‘Donut Hole’ in the Bering Sea. In the Arctic the international legal framework for fisheries management is provided by the UNCLOS, the Fish Stocks Agreement (to which all Arctic States including the United States are parties), and a host of RFMOs with geographical scope extending within the Arctic marine area (such as the North Atlantic Salmon Conservation Organisation113 and the International Commission on the Conservation of Atlantic Tunas).114 Unlike the Antarctic there is no single fisheries regime or RFMO for the Arctic such as CCAMLR, and the Arctic Council has demonstrated no inclination to become involved in Arctic fisheries management.

2. Non-Living Resources The management of the non-living resources within the territories of the Arctic Five is a question for those States alone. This is also the case in adjacent maritime areas 110

See E. J. Molenaar, Arctic Fisheries Conservation and Management: Initial Steps of Reform of the International Legal Framework, YPL 1 (2009), 427, 430. 111

Ibid., 432.

112

Robin R. Churchill, Claims to Maritime Zones in the Arctic – Law of the Sea Normality or Polar Peculiarity?, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2004), 105, 124. 113

Convention for the Conservation of Salmon in the North Atlantic Ocean, 2 March 1982, UNTS 1338, 33. 114

International Convention for the Conservation of Atlantic Tunas, 14 May 1966, UNTS 673, 63.

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claimed by these States with the exception of the areas where maritime boundaries fall to be determined. In resolving these boundaries States have followed the usual practice in the Law of the Sea and referred to established principles rather than any sui generis approach such as reliance on the sector principle which has been used to divide the Antarctic continent.115 The main focus of attention has been how Arctic States will determine the outer limits of their continental shelves, as most of the seafloor of the Arctic Ocean including the North Pole fall within the continental margins of one or several of the Arctic Five.116 Whereas in the Antarctic, the continental shelf submissions are being made in the abstract given the prohibition on mining in the Arctic, where no such ban applies, the submissions have more pressing relevance. Of the Arctic Five, only Russia (in 2001) and Norway (in 2009) have made submissions to the CLCS. Canada, having ratified the UNCLOS in 2003 has until 2013 to make submissions, while Denmark, having ratified in 2004 has until 2014 to do so.117 The final State of the Arctic Five, the United States, is not party to the UNCLOS, and cannot utilise the CLCS process until it joins. The United States, however regards the definition of the continental shelf in Article 76 UNCLOS as customary international law and its 2009 Arctic Policy, it stated that “[t]he most effective way to achieve international recognition and legal certainty for our extended continental shelf is through the procedure available to States Parties to the [UNCLOS].”118 To date, the making ‘claims’ to Arctic continental shelf areas has been orderly.119 The Arctic Five and the CLCS are grappling with the laborious and complex task of analysing geomorphological and geological data, and there has been cooperation 115

Churchill (note 112), 124; Andrew Serdy, Reactions and Overreactions to the Russian Flag on the Seabed at the North Pole, YPL 1 (2009), 499, 503. But see, contra, Molly Watson, An Arctic Treaty: A solution to the International Dispute over the Polar Region, Ocean and Coastal Law Journal 14 (2009), 307. 116 See Alex G. Oude Elferink, The Outer Continental Shelf in the Arctic: The Application of Article 76 of the LOS Convention in a Regional Context, in: Alex G. Oude Elferink/Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Boundary Delimitation and Jurisdiction (2001), 139. 117

In 2001 a meeting of State parties to the UNCLOS resolved that for those States for which the UNCLOS entered into force prior to 13 May 1999, the ten year deadline under UNCLOS Annex II Article 4 would begin to run from that date: UN Doc. SPLOS/72 (2001). 118 Comprehensive New Statement of U.S. Arctic Policy, in: John R. Crook (ed.), Contemporary Practice of the United States Relating to International Law, American Journal of International Law 103 (2009), 325, 342, 344. 119 Koivurova (note 76); Alex G. Oude Elferink, The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?, Netherlands Yearbook of International Law 40 (2009), 121.

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among States with overlapping shelves in preparing CLCS submissions. By virtue of its complex sea-floor structure,120 the Arctic is a crucible for the interpretation of some of the lesser known provisions of the UNCLOS that draw a distinction between oceanic ridges that are not part of the continental shelf and submarine ridges and elevations that are.121 One of those features is the Lomonosov Ridge which runs across the Arctic Ocean and the North Pole from Siberia to Greenland, which three Arctic States (Canada, Denmark and Russia) regard as belonging to their continental shelves. It was on the Lomonosov Ridge at the North Pole that a Russian submarine planted a Russian flag in 2007. This was a symbolic gesture and Russia accepts that the entitlement to seabed estate must be established according to the UNCLOS rather than any purported act of occupation.122 In response to Russia’s submission, the United States pointed out what it saw as defects in the extent of information provided and the characterisation of submarine features.123 In 2002 the CLCS handed down its interim recommendations in which it requested clarification of certain matters and additional data for the central Arctic (at the time of writing this is yet to occur). By contrast to Antarctic submissions to the CLCS, in the Arctic only limited objections have been raised by other States. Norway’s submission was not as provocative or contentious as the Russian submission,124 and the CLCS’s 2009 recommendations endorsed most of the limits identified by Norway. There were no protests,125 with States comfortable that in identifying the physical

120 Mel Weber, Defining the Outer Limits of the Continental Shelf Across the Arctic Basin: The Russian Submission, State’s Rights, Boundary Delimitation and Arctic Regional Cooperation, IJMCL 24 (2009), 653, 680. 121

Art. 76 (6) UNCLOS. See further Harald Brekke/Philip Symonds, Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf, ODIL 42 (2011), 4. 122

Art. 77 UNCLOS.

123

United States Notification Regarding the Submission made by the Russian Federation of 18 March 2002, available at: http://www.un.org/depts/los/clcs_new/submissions_files/rus01/CLCS_ 01_2001_LOS__USAtext.pdf (accessed on 22 November 2011). 124

See Øystein Jensen, Towards Setting the Outer Limits of the Continental Shelf in the Arctic: On the Norwegian Submission and Recommendations of the Commission, in: Davor Vidas (ed.), Law, Technology and Science for Oceans in Globalisation (2010), 521. 125

Ibid., 535. See also Vladimir Jares, The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Arctic, Vanderbilt Journal of Transnational Law 42 (2009), 1265, 1301.

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limits of a continental margin the CLCS makes recommendations without prejudice to the delimitation of continental shelf boundaries. One unresolved issue however is the effect of the Svalbard Treaty which allows parties equal rights over hunting and fishing in the archipelago. There is ongoing disagreement between Norway and other parties as to whether the treaty also gives equal access to the resources of the EEZ and the continental shelf. The CLCS’s recommendations find that there is a geological continental margin around Svalbard. Whether other States have equal rights to continental shelf resources is a legal and political question to be founded on the terms of the Svalbard Treaty.126 The CLCS acknowledged this in its recommendations, stating that they only address scientific and technical data and “are without prejudice to matters relating to delimitation between States.”127 The evident commitment by the Arctic Five to adhere to the Law of the Sea in their maritime claims, and to do so in a cooperative manner including through the CLCS leads to the ineluctable conclusion that “fears about violent conflicts over Arctic resources are unfounded.”128

D. Environmental Protection and Scientific Research

The environmental protection and scientific research policy domains have been closely linked in the Arctic,129 particularly since the AEPS and the establishment of the Arctic Council,130 are addressed here in tandem. There are two overriding priorities for Arctic environmental management. First, is the need for protection from localised threats (i.e. from the impacts of existing and potential future uses of the Arctic including shipping, fishing, resource extraction and 126

Jensen (note 124), 537. See also Torbjørn Pederson, The Svalbard Continental Shelf Controversy: Legal Disputes and Political Rivalries, ODIL 37 (2006), 339. 127

Summary of the recommendations of the CLCS with regard to the submission made by Norway for areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea, 2009, available at: http://www.un. org/depts/los/clcs_new/submissions_files/nor06/nor_rec_summ.pdf (accessed on 22 November 2011). 128

Elizabeth Riddell-Dixon, Meeting the Deadline: Canada’s Arctic Submission to the Commission on the Limits of the Continental Shelf, ODIL 42 (2011), 368, 379. 129

Linda Nowlan, Arctic Legal Regime for Environmental Protection (2001), 47.

130

de La Fayette (note 107), 552.

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bioprospecting). The second is to protect the Arctic from external threats, several of which the Arctic has experienced more seriously than the Antarctic because of its relative proximity to dense human settlement (for instance the accumulation of persistent organic pollutants in Arctic biota).131 The most serious exogenous threat is climate change and mitigation at a global scale is the only effective response. This can only be achieved through a strengthened global climate change regime. The first efforts at a region-wide Arctic system for environmental protection were made in the adoption of the AEPS in 1991 which identified six main pollution threats: persistent organic pollutants, oil, heavy metals, noise, radioactivity and acidification (from acid rain). It also set out a strategy for responding to these threats. The AEPS was built upon the premise that its objectives would be achieved through the national implementation of environmental laws and policies consistent with it. The AEPS was the forerunner for the creation of the Arctic Council in 1996 which has as its central remit the addressing of environmental threats to the Arctic. The Arctic Council is at the forefront of scientific assessments of the health of Arctic terrestrial and marine ecosystems. One of the Arctic Council’s major achievements has been the support it has provided for comprehensive scientific assessments of the Arctic environment. The level of scientific research has been more expansive and certainly better coordinated than in the Antarctic. Among a host of landmark assessments undertaken by the Arctic Council was the 2004 Arctic Climate Impact Assessment, the first wide-ranging review of climate impacts for a specific region. All of the Council’s six working groups are concerned in one way or another with environmental questions. But unlike the Antarctic, in the Arctic there is no overarching and binding environmental agreement, no centralised agency or body to assess the environmental impact of activities, and no system for international inspection and enforcement. It is a soft-law and advisory system and appears destined to remain so; as suggestions for a comprehensive ‘Arctic Environmental Protection Treaty’ to mirror the Antarctic’s Environmental Protocol has not received support from Arctic States.132 While knowledge of the Arctic environment has undergone a revolution, the system for management is frozen in time. As Koivurova has noted “while there 131 Derek C. G. Muir/Cynthia A. de Wit, Trends of legacy and new persistent organic pollutants in the circumpolar arctic, Science of the Total Environment 408 (2010), 3044. 132

Rayfuse (note 80), 215.

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was a rapid shift […] from AEPS to Arctic Council co-operation, the underpinnings of the co-operation have remained very much the same”133 as they were in 1991.

E. Shipping

It seems inevitable that there will be a substantial increase in trans-arctic and intraarctic shipping in coming decades as summer sea ice retreats and commercial shippers seek to take advantage of the Northwest Passage and the Northern Sea Route that offer significant navigational short cuts to their alternatives along some of the world’s busiest trading routes. Other shipping traffic particularly of cruise and fishing vessels is also likely to increase, posing a particular risk that vessels unsuited to polar conditions will operate in the region. There is a clear need for the adoption and enforcement of standards that match the environmentally sensitive, navigationally challenging and highly remote Arctic waters. Arctic rim States are entitled under Article 234 of the UNCLOS to adopt regulations for ice-covered waters within their EEZs that are stricter than the international standards, however, it must be noted that Article 234 is one of the most ambiguous and contested provisions of the UNCLOS.134 The capacity for coastal State regulation and enforcement is a clear distinction between the Arctic and the Antarctic regimes. However, Arctic shipping will transit through multiple EEZ and high seas areas; thus, there is a need for harmonised marine pollution laws and shipping standards through multiple levels of governance135 and to address issues arising in particular routes such as the Northwest Passage.136

133

Timo Koivurova, Governing Arctic Shipping: Finding a Role for the Arctic Council, YPL 2 (2010), 115, 121. 134 Kristin Bartenstein, The ‘Arctic Exception’ in the Law of the Sea Convention: a Contribution to Safer Navigation in the Northwest Passage?, ODIL 42 (2011), 22, 23. For a review of relevant national regulations see R. Douglas Brubaker, The Arctic: Navigational Issues under International Law of the Sea, YPL 2 (2010), 7. 135

Rayfuse (note 80), 210; Aldo Chircop, The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?, IJMCL 24 (2009), 355, 378–379. 136 See further Elizabeth Elliot-Meisel, Politics, Pride and Precedent: The United States and Canada in the Northwest Passage, ODIL 40 (2009), 204, 215.

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The Arctic Council’s 2009 Arctic Marine Shipping Assessment (AMSA) (the first time the Arctic Council engaged in serious consideration of shipping issues)137 identified key threats associated with Arctic shipping and the need for a more robust regulatory system in anticipation of a significant growth in vessel traffic. It noted that at present “there are no specifically tailored, mandatory environmental standards developed by IMO for vessels operating in Arctic waters.”138 The AMSA recommended that Arctic States actively support the enhancement of the IMO’s Arctic Guidelines139 and their codification as mandatory rules.140 It was further recommended that Arctic States seek to augment existing IMO ship safety and pollution prevention treaties to provide specific Arctic protections. The AMSA fell short of recommending an Arctic shipping treaty, although it did express support for the recently concluded AMSAR.

IV. The Limits of Polar Comparativism The Antarctic and Arctic regimes are products of very different geopolitical eras, bookends to the Cold War. The Antarctic Treaty was negotiated at a time of high political tension as the United States and the Soviet Union competed for strategic advantage in the world’s last true frontier, and was made both necessary and possible because of the need to balance a wide range of issues including the status of sovereign claims over the continent and its demilitarisation. An analogous device to limit the designs of the superpowers over the Arctic was not necessary, as the superpowers already faced one another cheek by jowl across the Bering Strait, and without the focal point of potential conflict there was no need to deal conclusively with the full suite of Arctic issues. Instead they were addressed incrementally, mostly bilaterally and through ad hoc and soft-law instruments, rather than through treaties with regional application.

137

Koivurova (note 133), 138.

138

Arctic Marine Shipping Assessment, Executive Summary, 4, available at: http://www.arctic.gov/ publications/AMSA/exec_summary.pdf (accessed on 19 December 2011). 139

MSC/Circ.1056 MEPC/Circ.399 (note 67).

140

Arctic Marine Shipping Assessment (note 138), 6.

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When the Arctic Council emerged in 1996, almost 40 years after the Antarctic Treaty was concluded, the political and legal landscape in the Arctic and beyond was radically transformed from that of the 1950s. Not only had the spectre of conflict receded, but in the interim a complex body of international law with relevance to the Arctic had emerged. Consider the contrasting international legal environments in 1959 and 1996; in 1959 only the outlines of the Law of the Sea were solidified in the four Geneva Conventions on the Law of the Sea,141 there were no multilateral environmental agreements and modern RFMOs were in their infancy. Yet by 1996 the Law of the Sea had been comprehensively codified in the UNCLOS that entered into force in 1994 and a plethora of regulatory environmental regimes were in operation. As Arctic States joined the ‘constitution’ of the oceans it became apparent that the UNCLOS would also be the charter for Arctic ocean management, fulfilling many of the functions performed by the ATS in Antarctica in addressing sovereign rights, jurisdiction and environmental protection. Despite some hyperbolic commentary about the future of the Arctic region under changing environmental conditions, and as Arctic States seek to realise their resource ambitions, it seems unlikely that the disagreements that are emerging will generate sufficient heat to impel a gestalt shift to a fundamental reordering of legal relations in the Arctic region. There is no real ‘race to resources’ underway. Despite the anxiety conjured up by the possibility of Hobbesian competition, the irony is that if the prospect of conflict were more tangible it could well impel greater cooperation.142 The sites of potential conflict are more limited in the Arctic than they were in the Antarctic because of the much clearer sovereignty picture and the existence of a legal framework, principally in the form of the UNCLOS. The Arctic States are able to pursue and achieve their objectives with far less coordination than those States with an interest in the Antarctic given their possession of sovereign jurisdiction over most Arctic resources.143 Cooperation is needed where there are overlapping maritime zones, where territorial claims are unresolved, and for high seas and transboundary 141 Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, UNTS 516, 206; Convention on the High Seas, 29 April 1958, UNTS 450, 11; Convention on Fishing and Conservation of the Living Resources of the High Seas, 20 March 1966, UNTS 559, 285; Convention on the Continental Shelf, 29 April 1958, UNTS 499, 311. 142

Brosnan/Leschine/Miles (note 122), 173. See also Koivurova/VanderZwaag (note 87), 121. This is reflective of a pattern of international regime-building at times of crisis: Hilary Charlesworth, International Law: A Discipline of Crisis, Modern Law Review 65 (2002), 377. 143

Brosnan/Leschine/Miles (note 122), 180.

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fish stocks.144 Hence, significant but not cataclysmic disputes are possible and how they will be resolved will be a test for the efficacy of international law in the Arctic. In the Arctic the jurisdictional issues are still being played out, particularly in the context of the continental shelf. There is no question that climate change has accentuated the significance of this process, but it has not altered its fundamental character. So this assessment disagrees with the view that in the Arctic there is an intimate coupling of two state system changes – an environmental state-change as the Arctic changes from an ice-covered to an ice-free area in summer and – a geopolitical statechange as Arctic nations vie for resources and influence in the Arctic Ocean.145 When resolved, the Arctic continental shelf claims will mean that Arctic coastal States will have sovereign rights over the seabed throughout the Arctic Ocean with the exception of a small area of high seas.146 This illustrates the general pattern of developments in the Arctic. Unlike the Antarctic where the claims to sovereignty were ‘systemic’, running against almost universal international opposition, in the Arctic the arrogation of sovereignty is recognised and its extension over maritime areas is occurring as part of a regularised process endorsed by the international community in the LOSC. Inevitably this is entrenching the already privileged position of the Arctic rim States, the Arctic Five. In this regard Koivurova has noted that the process of determining the continental shelf areas alters “the politico-legal setting in the Arctic simply by extending the presence of Arctic States further onto to the Arctic Ocean seabed,” with the effect of further strengthening the position of the Arctic Five over the Arctic Eight.147 The Arctic regime therefore appears destined to be governed by two competing groups of States and by a collection of regimes at global, regional, and sub-regional levels; a situation that qualifies the Arctic as a ‘rule complex’.148 International rela144

Ibid. In this respect Henriksen and Ulfstein comment in relation to the Barents Sea Treaty between Russia and Norway that “[i]t is not coincidental that agreement was reached in a period of significant international attention on the Arctic. The prospect of the sea-ice loss, the opening of the region to maritime transport and access to natural resources, particularly petroleum deposits, was probably influential for the parties to reach agreement at this stage”: Henriksen/Ulfstein (note 103), 10. 145

Paul Arthur Berkman, Arctic Ocean State-Changes: Self-Interests and Common Interests, YPL 1 (2009), 511. 146 Rayfuse (note 80), 207. See also Alexander Proelss, Governing the Arctic Ocean, Nature Geoscience 2 (2009), 310. 147 148

Koivurova (note 76), 494.

Louis W. Pauly, The Increasing Complexity of Global and Regional Governance: New Context for Polar Law, YPL 2 (2010), 189, 194.

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tions scholars have identified such rule complexes in both specific regions and in respect of specific subject matters.149 While the ATS has also felt the influence of external regimes, this has been mediated by the ‘objective’ nature of the ATS regime, in which the control over the most fundamental Antarctic issues is centralised in the hands of the ATCPs. In the Arctic there has been far more ‘regime interplay’150 among panoply of treaties, and views differ on whether this is productive or counterproductive and whether the Arctic regime complex can ever be more than the ‘sum’ of its parts. On the one hand, Proelss argues rule specialisation in the Arctic serves the purpose of allowing specific challenges to be addressed by those global rules specifically tailored for the purpose.151 Yet on the other, this significantly complicates and disturbs progress towards a goal of a systemic, centralised and overarching governance framework.152 In the Arctic issue-area linkage is difficult because policy and regulatory responses are moving at different speeds. Brosnan et al. note that some issues such as shipping, scientific research and environmental protection are truly multilateral questions, yet questions of sovereignty and resource development are mostly bilateral.153 They argue that “efforts to achieve cooperation using broad, multidimensional Arctic treaties may prove to be counterproductive if they link what may prove to be challenging issues (e.g. fisheries management) to otherwise unrelated and potentially more benign issues such as scientific research.”154 Hence, while extremely appealing as a matter of principle, as a matter of practicality it is unlikely that calls for a pan-Arctic regime will be heeded.155 The focus of regime building will need to be less ambitious and reflective of the new dynamics in regional Arctic politics. Rayfuse has fleshed out one of the most developed and compelling of such proposals. Noting major gaps in the governance of the Arctic

149

See, e.g., Daniel Drezner, The Power and Peril of International Regime Complexity, Perspectives on Politics 7 (2009), 65. 150

Stokke (note 94), 352.

151

Proelss (note 146), 311.

152

Paul Arthur Berkman/Oran R. Young, Governance and Environmental Change in the Arctic Ocean, Science 324 (2009), 329. 153

Brosnan/Leschine/Miles (note 142), 202–203.

154

Ibid.

155

Stokke (note 94), 369.

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Ocean,156 Rayfuse contends that the Arctic Five should embrace the concept of ‘common stewardship’ to advance their interests and those of the international community generally. Rayfuse proposes an “Arctic Ocean regional oceans management organisation” with wide-ranging jurisdiction over all high seas uses which oversees a regime that “demilitarises the area and ensures a cross-sectoral, ecosystembased, precautionary approach to management and use which embodies modern conservation and management principles.”157 Louise de La Fayette advanced a similar proposal,158 advocating an Arctic regional seas agreement that would address pollution, navigation and fishing, taking inspiration from existing regimes such as the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).159

V. Conclusion This article has suggested that in constitutional form and design the Arctic and Antarctic regimes are increasingly travelling in separate directions. Those anxious about the future of Arctic management should not look south in the quixotic expectation that the fundamental features of the Antarctic regime can be translated or transplanted to the Arctic context. This is not necessarily of concern because, as Young has observed, the focus ought to be on outcomes rather than processes, and on substance rather than form: “[i]n the final analysis, what counts is the ability of institutional arrangements to solve problems of interest to their subjects and to achieve the robustness needed to operate effectively over time.”160 Of course the formal shape and the substantive content of the two regimes are not always able to be so readily disen156

Rosemary Rayfuse, Warm Waters and Cold Shoulders: Jostling for Jurisdiction in Polar Oceans, YPL 1 (2009), 465, 474. See also Alf Håkon Hoel, Do We Need a New Legal Regime for the Arctic Ocean?, IJMCL 24 (2009), 443, 455. 157

Rayfuse (note 156), 475–476.

158

de La Fayette (note 107), 544.

159

Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, reprinted in: ILM 32 (1993), 1069. 160

Oran R. Young, Governing the Arctic: From Cold War Theater to Mosaic of Cooperation, Global Governance 11 (2005), 9. See also Helga Haftendorn, Soft solutions for hard problems, International Journal 65 (4) (2010), 809.

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tangled. One of the consequences of the incremental and non-programmatic way in which international law has been developed and applied in the Arctic context is that it has generated an exceptionally complex and multi-layered legal and political regime. The inevitable effect of this is to make responsive and effective governance of the region more challenging at a time when rapid reactions to changing environmental conditions are more critical than ever. By comparison the defined constitutional form of the ATS has provided a clear framework on which an impressive body of Antarctic law can be built. A focus on the ‘substantive’ similarities rather than ‘formal’ differences of the two regimes rather than their architecture opens up new avenues for constructive bipolar comparison and regime development. There remain many arenas of polar governance where common approaches can and should be taken. The development of the Polar Shipping Code is a clear example, and pressure from Arctic and Antarctic States within the IMO is needed to ensure that it becomes mandatory. There are promising signs that in other areas the Arctic can develop binding sectoral agreements to deal with matters that have been the subject of attention in the Antarctic, including a mooted oil pollution treaty that would stand alongside AMSAR. Notwithstanding the Illulissat Declaration’s disavowal of a comprehensive Arctic Treaty, the conclusion of the AMSAR indicates that Arctic States have finally accepted the need to establish binding regional rules to address 21st century governance challenges.

The European Union and the Arctic: Could Iceland’s Accession to the EU Change the EU’s Influence in the Arctic? AÐALHEIÐUR JÓHANNSDÓTTIR(

ABSTRACT: The article discusses some topics relating to Iceland’s possible accession to the European Union (EU). It argues that, even though there are relatively few signs on the horizon indicating that Iceland’s EU membership would make a substantial difference in the Arctic Region, Iceland’s membership, compared with its current legal situation under the European Economic Area Agreement (EEA Agreement), would nevertheless strengthen both the EU’s political and legal status in the European Arctic due to Iceland’s geographical location. Iceland’s membership could also bring about new opportunities for the current EU Member States and, at the same time, possibly affect Iceland’s sovereign competence to control particular subject matters and, in some instances, lessen opportunities for Icelandic nationals to utilise some natural resources. In this light, although with some exceptions and from a European point of view, the objective of this article is to explore some policy and legal aspects that could have a bearing on Arctic issues if Iceland became an EU Member State. Apart from several general issues that are directly and indirectly tied to Arctic governance and legal control, one particular topic – fisheries – will be highlighted. KEYWORDS: Arctic, European Union, European Economic Area, Iceland’s accession, Common fisheries policy, Arctic Council

I. Introduction The objective of this article is to explore some topics relating to the European Arctic or otherwise to have some bearing on Arctic issues. It discusses how the EU’s situation could change if Iceland – in this article viewed as an Arctic Coastal State as part of its jurisdiction faces the Arctic Ocean,1 became an EU Member State, which is currently (

Professor of Law, Faculty of Law, at the University of Iceland. The author holds a doctoral degree (LL.D.) in Environmental Law and is responsible for the teaching of environmental and natural resources law (international, EU and national) at the Faculty. She chairs the board of the Research Centre in Environmental and Natural Resources Law, located in Iceland. 1

See infra, II. A. and IV. A.

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under negotiation. It is not unfair to expect that Iceland could become an important EU Arctic Coastal State if its membership is approved and confirmed. Iceland, while realising the importance of the Arctic – including new opportunities due to growing accessibility – has not exercised any aggressive international policy towards Arctic governance. Yet the Icelandic government is fully of aware of the Arctic’s importance to Iceland’s economic development and is concurrently realising certain threats and security issues and growing international responsibility.2 At the time of writing, October 2011, the Icelandic government has initiated formal membership negotiations with the EU. It remains to be seen whether an accession agreement will be reached, and if so, whether a national referendum will approve the negotiated agreement. While this article considers Iceland to be an Arctic Coastal State,3 a view which is not necessarily shared by other Arctic States,4 and although not an EU Member State, Iceland is a party to the Agreement on the European Economic Area (EEA)5 and is thus an EEA State.6 It will herein be argued that with Iceland’s accession both the EU’s political and legal status in the European Arctic would strengthen, and it could bring about new opportunities for EU Member States, particularly relating to the utilisation of some natural resources that are currently and exclusively under Icelandic jurisdiction and control. At the same time, future opportunities of Icelandic nationals could potentially diminish. The EU as a defined region does not currently include any Arctic Coastal Member States.7 While three of the EU’s Member States are Arctic States: Denmark (Greenland), Finland and Sweden, the latter two are not Arctic Coastal States despite the fact that their sovereign territory stretches beyond the Arctic Circle (66° 33’ N latitude), as they lack coastline directly facing the Arctic Ocean. In relation to the 2

Parliamentary Resolution of 28 March 2011 on Iceland’s Policy in Issues Relating to the Arctic (Þingsályktun um stefnu Íslands í málefnum norðurlsóða, þskj. 1148 – 337. mál, 28. mars 2011), available at: http://www.mfa.is/media/nordurlandaskrifstofa/A-Parliamentary-Resolution-on-ICE-ArcticPolicy-approved-by-Althingi.pdf (accessed on 12 October 2011). See infra, IV. B. 3

See ibid., inter alia, item 2, and e.g. Thomas H. Heidar, The Legal Regime of the Arctic Ocean, in: Georg Witschel/Ingo Winkelmann/Katrin Tiroch/Rüdiger Wolfrum (eds.), New Chances and New Responsibilities in the Arctic Region, 157, et passim. 4

See infra, II. B.

5

Agreement on the European Economic Area of 2 May 1992, OJ 1994 L 1, 3 (EEA Agreement). For a general coverage of the EEA compared with the EU see M. Elvira Méndez-Pinedo, EC and EEA Law: A Comparative Study of the Effectiveness of European Law (2009). 6

See further infra, IV. C.

7

See on Greenland’s situation infra, notes 10 and 11, and V. B.

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utilisation of sea-based resources, under the United Nations Convention on the Law of the Sea (UNCLOS),8 Coastal States enjoy some exclusive rights that other States have not been awarded.9 Greenland, on the other hand, which became governmentally autonomous within Denmark on 21 June 2009 (Self-Government),10 is not an EU Member State, unlike Denmark. Greenland withdrew from the EU’s predecessor, the European Economic Community (EEC), in 1985.11 This article will however not be exhaustive, as several Arctic-related subjects, including issues on the European Arctic, have been commented on by many authors and several articles and general textbooks are already available. Some of these provide information on particular legal issues relating to the rights of indigenous peoples;12 the utilisation of natural resources,13 and Arctic governance,14 to give some examples.15

8 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS), see particularly Arts. 55–75, et passim. 9

See further infra, II. A and B.

10

According to Art. 22 of Act No. 473/2009 on Greenland’s Self-Government (Lov om Grønlands Selvstyre No. 473/2009), 12 June 2009, Lovtidende A of 13 June 2009. In line with Ch. 4 of this Act, Greenland has some but limited competence in foreign affairs. See Mininnguaq Kleist, Greenland’s SelfGovernment, in: Natalia Loukacheva (ed.), Polar Law Textbook (2010), 171. 11 Treaty amending, with regard to Greenland, the Treaties establishing the European Communities of 13 March 1984, OJ 1985 L 29, 1. According to Art. 3, Greenland has the status of an overseas country or territory. Art. 204 Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (Consolidated Version). 12

See, e.g., Jakob Th. Möller, Case Law of the UN Human Rights Committee relevant to Members of Minorities and Peoples in the Arctic Region, in: Gudmundur Alfredsson/Timo Koivurova (eds.), The Yearbook of Polar Law, vol. 3 (2011), 27; and Asbjørn Eide, Indigenous Self-Government in the Arctic, and their Right to Land and Natural Resources, in: Gudmundur Alfredsson/Timo Koivurova (eds.), The Yearbook of Polar Law, vol. 1 (2009), 246. 13

See, e.g., Kamrul Hossain, International Governance in the Arctic: The Law of the Sea Convention with a Special Focus on Offshore Oil and Gas, Yearbook of Polar Law (YPL) 2 (2010), 139, and Tore Henriksen, Conservation and Sustainable Use of Arctic Marine Biodiversity, Arctic Review on Law and Politics (ARLP) 1 (2010), 249. 14 See, e.g., Timo Koivurova, The Status and Role of Indigenous Peoples in Arctic International Governance, YPL 3 (2011), 169; Piotr Graczyk, Observers in the Arctic Council – Evolution and Prospects YPL 3 (2011), 575, Louis W. Pauly, The Increasing Complexity of Global and Regional Governance: New Context for Polar Law, YPL 2 (2010), 189; and Oran R. Young, Arctic Governance – Pathways to the Future, ARLP 1 (2010), 164. 15

See further coverage on Arctic related issues in YPL 1 (2009), 2 (2010), 3 (2011), and Natalia Loukacheva (ed.), Polar Law Textbook (2010) reflecting a new legal discipline, Polar Law.

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II. Background A. The Arctic Region, Arctic States and Natural Resources

The Arctic, unlike the Antarctic, is not a continent but a spacious area spanning both land and sea areas, including the Arctic Ocean, which is largely covered with ice.16 International law provides no authoritative legal definition of either the Arctic States (sometimes referred to as the Circumpolar States) or the Arctic Region. Some authors consider the Arctic Region to be too narrowly defined by referring only to States partially or wholly situated north of the Arctic Circle and argue for a broader definition, see e.g. coverage on the Icelandic Arctic Policy in section IV. B. For the purposes of this article, the definition of Arctic Region used is not strictly confined to the region, land and sea north of the Arctic Circle, 66° 33’ N,17 thus Arctic land territories fall under the sovereignty of eight States: Canada, Greenland (Denmark), Finland, Iceland, Norway, Russia, Sweden and the United States.18 The same States are usually considered Arctic States.19 Rising temperatures and the gradual melting of the Arctic ice cap will probably bring about new opportunities and concurrently new responsibilities relating to the Arctic Region due to its fragility. This includes responding to negative effects from pollutants and their environmental accumulations and ecological changes.20 On the other hand, melting of the Arctic ice will not only facilitate sailing to, from, and through the Arctic Ocean. It also makes further use of the Northern Sea Route from the Atlantic Ocean to the Pacific Ocean, the Northwest Passage through the Arctic Ocean and Canadian waterways alongside the 16 See for information on the Arctic sea ice, National Snow and Ice Data Center, Arctic Sea Ice News & Analysis, available at: http://nsidc.org/arcticseaicenews/index.html (accessed on 23 August 2011). 17 See on definitions, inter alia, Natalia Loukacheva, Introduction to Polar Law, in: Natalia Loukacheva (ed.), Polar Law Textbook (2010), 13, and also Timo Koivurova, Alternatives for an Arctic Treaty – Evaluation and a New Proposal, Review of European Community and International Environmental Law (RECIEL) 17 (2008), 14, 15, introducing criteria for defining the southernmost boundary of the Arctic including the tree line and the 10°C isotherm. 18 For a recent map on maritime jurisdictions see International Boundaries Research Unit, Maritime Jurisdiction and Boundaries in the Arctic Region, 6 October 2011, available at: http://www.dur. ac.uk/resources/ibru/arctic.pdf (accessed on 25 August 2011). 19 20

See inter alia, Loukacheva (note 15).

See inter alia, WWF Factsheet, Effects of Climate Change on Arctic Fish, available at: http://www.climatechange.ie/pdf/WWF/arctic_fish_factsheet.pdf (accessed on 15 September 2011).

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northern coast of North America, and eventually the Polar Route possible.21 In light of this, further utilisation of Arctic natural resources may become feasible in the near future, primarily due to the Region’s richness in particular natural resources, including oil, gas and fish stocks; at the same time the Region is still somewhat distant from large commercial facilities and markets. Recent evaluation of the potential oil or gas accumulations in areas north of the Arctic Circle indicate that the area may contain the largest unexplored prospective areas for oil and gas on Earth.22 Moreover, due to environmental changes, the composition of Arctic fish stocks is expected to develop and eventually change, which could bring about new fishing opportunities in the Region.23 Most, if not all, of those with jurisdiction within the Arctic Region have prepared policies and national legislation having an Arctic relevance or purpose.24 Although outside the scope of this article, the importance of national legislation should not be underestimated, particularly as it may reflect on implementing international regimes.25 Current environmental changes could lead to further environmental stress upon the Arctic Region; however, this situation may concurrently generate further opportunities, not merely for just the Arctic States, as well as increased economic activities in or connected to the Arctic.

B. Arctic Coastal States – International and Regional Governance

The Arctic Coastal States, i.e. Canada, Greenland (Denmark), Iceland, Norway, Russia and the US obviously have important status when it comes to the utilisation of 21 See, e.g., Ministry for Foreign Affairs, Iceland, North Meets North: Navigation and the Future of the Arctic. Report of a working group of the Ministry for Foreign Affairs (2009), available at: http://www.invest.is/resources/Files/invest_is/Shipping%20hub.PDF (accessed on 23 August 2011). 22

US Geological Survey (USGS), Fact Sheet 2008–3049: Circum-Arctic Resources Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle, available at: http://pubs.usgs. gov/fs/2008/3049/fs2008-3049.pdf (accessed on 12 October 2011). 23

Erik J. Molenaar/Robert Corell, Background Paper Arctic Fisheries, 9 February 2009, available at: http://arctic-transform.org/download/FishBP.pdf (accessed on 17 September 2011). See also Communication from the Commission to the European Parliament and the Council: The European Union and the Arctic Region, COM(2008)763 final, 20 November 2008, para. 3.2, stipulating the EU’s policy objective for Arctic fisheries, which is to ensure that exploitation of Arctic fisheries resources takes place at sustainable levels whilst the rights of the local coastal communities are respected. 24 25

See, e.g., Loukacheva (note 15), 13–21.

Extraterritorial application of national legislation is generally not accepted as a principle binding national or economic operators of third States.

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the Arctic natural resources, including oil, gas and fish stocks, due to their exclusive rights related to the natural resources of their continental shelves26 and within their Exclusive Economic Zones (EEZs).27 In line with international law, they simultaneously have a responsibility to the international community due to the fragility of the Arctic Region and its environment. Easier accessibility to and from the Region is nevertheless on the horizon, and this fact concerns not only the interests of the Arctic States but also interests of other stakeholders, including China.28 Several international and regional organisations have placed the Arctic, or particular subject matters relating to Arctic issues, on their agendas. This development has, inter alia, contributed to the complexity of the Region’s international governance. Some influential international organisations such as the Arctic Council29 – a high level intergovernmental coordinative and cooperative platform on common Arctic issues established by the Arctic States in 1996 – and the European Union (EU), as well as important research institutions, including the European Environment Agency (EEA),30 have an imperative role to play.31 By October 2011, the EU has not obtained permanent observation status within the Council but has to a certain extent enjoyed an ad hoc observer status;32 however, 26

See further on the Dreki Area infra, IV. A.

27

On the basis of an analysis of instruments on the conservation and management of Arctic fisheries, Erik J. Molenaar and Robert Corell point out gaps in the international legal and policy framework whereas large parts of the Arctic marine area are not covered by a regional fisheries management organisation (RFMO) or arrangements between the relevant Arctic coastal States and they present various options for adjustments. See further Molenaar/Corell (note 23), 25–26. 28

See Frédéric Lasserre, China and the Arctic: Threat or Cooperation Potential for Canada? China Papers No. 11, Centre of International Relations, The University of British Columbia (2010). 29

Declaration on the Establishment of the Arctic Council, 19 September 1996, available via: http://www.arctic-council.org/index.php/en/about/documents/category/5-declarations (accessed on 06 December 2011) (Ottawa Declaration of 1996); see for further information on the Arctic Council its website, available at: http://www.arctic-council.org/ (accessed on 12 October 2011). 30 The principal objective of the EEA is information gathering and dissemination in the interest of the EU, its organs and EU Member States. See also Johan Richard Hansen/Rasmus Hanson/Stefan Norris (eds.), EEA Environmental Monograph No. 3: The State of the European Arctic Environment, (2010), 16. 31 Information on scientific work and programmes operated within the Arctic Council include Arctic Contaminants Action Program (ACAP); Arctic Monitoring and Assessment Programme (AMAP); Conservation of Arctic Flora and Fauna (CAFF); Emergency Prevention, Preparedness and Response (EPPR); Sustainable Development Working Group (SDWG), and Protection of the Arctic Marine Environment (PAME), information available at: http://arctic-council.org/section/working_groups (accessed on 17 September 2011). 32

See, e.g. Senior Arctic Official (SAO) Report to Ministers, Tromsø, Norway, April 2009, 3, available at: http://www.arctic-council.org/index.php/en/about/documents/category/53-final-reports-

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three EU Member States, Denmark, Finland and Sweden are full members of the Council and six non-Arctic EU Members States enjoy a permanent observer status.33 To add to the complexity of Arctic governance, five of the Arctic Coastal States (that are also members of the Arctic Council): Canada, Denmark, Norway, Russia and the US have formed an alliance and co-ordinated their general policy and responsibilities towards the Arctic, including the view that the development of a new comprehensive international legal regime to govern the Arctic Ocean is not necessary.34 What is of interest here is that Iceland is ostensibly not regarded as an Arctic Coastal State by the Arctic Five; yet the alliance aims to cooperate with other interested parties.35 For the Arctic States, and particularly the Arctic Coastal States, environmental changes in the Arctic will bring about new and important opportunities in the utilisation of natural resources. Meanwhile several international platforms, including the Arctic Council, have been aware of the necessity of cooperation for some time; inter alia due to sensitive and difficult situations in the area. All the same, the complexity of governance seems to be growing as some of the Arctic Coastal States have formed a particular interest group to tighten their cooperation.

III. International Regimes A. Global and Regional Regimes of Importance

It is not only the cooperative forums which contribute to Arctic governance; several international treaties, global and regional, play an important role in the Arctic Region. Due to the Region’s geographical and environmental circumstances, the law of the sea is fundamental in this respect. UNCLOS is thus particularly relevant and

and-statements (accessed on 30 October 2011), and also http://www.arctic-council.org/index.php/ en/about-us/permanentparticipants (accessed on 30 October 2011). See also Piotr Graczy, Observers in the Arctic Council – Evolution and Prospects, YPL 3 (2011), 607–609 and 629–633. 33

France, Germany, the Netherlands, Poland, Spain, and United Kingdom. See http://www.arcticcouncil.org/index.php/en/about-us/partners-links (accessed on 27 November 2011). 34 Ilulissat Declaration, 28 May 2008, available at: http://www.oceanlaw.org/downloads/arctic/ Ilulissat_Declaration.pdf (accessed on 30 October 2011). 35

Ibid.

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all Arctic States, with the exception of the US, are parties to it.36 Applicable to all oceans including the Arctic Ocean, UNCLOS provides an international framework for determining maritime zones and jurisdictions,37 as well as stipulating the general principles relating to the utilisation of natural resources,38 pollution prevention,39 and a dispute settlement mechanism.40 Equally important in the prevention of pollution from ships in the Arctic Ocean is the International Convention for the Prevention of Pollution from Ships (MARPOL),41 and its Protocol of 1978, relating to the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)42 which all Arctic States have ratified.43 Several other global regimes play an important role in the Arctic Region. These include the Convention on Biological Diversity (CBD);44 the Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Straddling Fish Stocks Agreement);45 the United Nations Framework Convention on Climate Change (UNFCCC)46 and the Kyoto Protocol to the United

36 See UN Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, Chronological Lists of Ratifications, of Accessions and Successions to the Convention and the related Agreements as at 3 June 2011, available at: http://www.un.org/Depts/los/reference_files/chronological_lists_of_ ratifications.htm (accessed on 27 June 2011). 37

Inter alia, Art. 1 UNCLOS, cf. also Arts. 133, 3, 55, 57, 76, and 87 UNCLOS.

38

See further, inter alia, Arts. 56, 61–68, 77, 116–120, 136, and 193 UNCLOS.

39

See, inter alia, Arts. 192–196 UNCLOS.

40

Part XV and Annex VII UNCLOS.

41

International Convention for the Prevention of Pollution from Ships, 2 November 1973, UNTS 1340, 184 (MARPOL). 42 Protocol of 1978, relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978, UNTS 1340, 61 (MARPOL 73/78). 43 See International Maritime Organization (IMO), Status of Conventions, available at: http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx (accessed on 28 June 2011). See also the work of the IMO and IMO, Guidelines for Ships Operating in Polar Waters, IMO Res.A.1024(26), 18 January 2010. 44

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79 (CBD).

45

Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, UNTS 2167, 3 (Straddling Fish Stocks Agreement). 46

United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1771, 107.

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Nations Framework Convention on Climate Change (Kyoto Protocol).47 All Arctic States except the US have ratified these treaties.48 A few regional agreements need mentioning as well. The regional regimes of importance comprise the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),49 providing a comprehensive framework against sea pollution and targeting land-based sources; the Agreement on the Conservation of Polar Bears (Polar Bear Agreement),50 making available a framework for the conservation of polar bears; and also the Treaty Concerning the Archipelago of Spitsbergen (Spitsbergen (Svalbard) Treaty),51 recognising, subject to certain qualifications, the sovereignty of Norway over Svalbard.52 Finally, reflecting the need for closer cooperation of the Arctic States in particular areas, a new Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (Nuuk Agreement)53 has recently been finalised (May 2011) under the auspices of the Arctic Council. This is, however, not yet in force. Accordingly several international and regional legal regimes exist that in one way or another are applicable to the Arctic Region. International legal governance would however typically be complex and decentralised and require high international cooperation as well as vertical implementation to function properly. In comparison, more systematic international legal governance has been developed for the Antarctic,

47 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, UNTS 2303, 1478 (Kyoto Protocol). 48 See ratification lists available at: http://www.cbd.int/information/parties.shtml (accessed on 27 June 2011), and http://unfccc.int/essential_background/convention/status_of_ratification/ items/2631.php (accessed on 9 August 2011), and http://unfccc.int/kyoto_protocol/status_of_ ratification/items/2613.php (accessed on 9 August 2011). 49

Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, UNTS 2354, 67 (OSPAR Convention). 50

Agreement on the Conservation of Polar Bears, 15 November 1973, reprinted in: ILM 13 (1974), 13 (Polar Bears Agreement). Original signatories are Canada, Denmark (Greenland), Norway, Russian Federation (originally Union of Soviet Socialist Republics) and USA. 51 Treaty Concerning the Archipelago of Spitsbergen, 9 February 1920, LNTS 2, 7 (Spitsbergen (Svalbard) Treaty). All the Arctic States have ratified the Spitsbergen Treaty and also several other States. See further Gunnar G. Schram, Hafréttur (2001), 122–129. 52 53

See further Arts. 1 et seq. Spitsbergen Treaty.

Not yet in force. Signed by the eight Arctic States in Nuuk, 12 May 2011, further information available at: http://arctic-council.org/section/press_room (accessed on 28 June 2011). The Agreement’s text is available via: http://www.arctic-council.org/ (accessed on 28 June 2011).

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the Antarctic Treaty System (ATS).54 Its main purpose is to provide the Antarctic55 legal governance in several important areas, including research cooperation, the conservation of living resources and the preservation of the Antarctic environment.56 Whether or not a particular Arctic treaty would be needed is briefly tackled in III. C.

B. The Importance of Vertical Implementation

In spite of the above regimes requiring international and regional cooperation of States, most if not all are highly dependent upon vertical implementation and legal operationalisation within the respective national legal orders and, depending on their substance, implementation into secondary EU legislation. This is usually done by adopting directives or in some cases regulations; otherwise their substance does not become fully effective or have the intended effect. With the exceptions of the Polar Bear Agreement, MARPOL 73/78, the Spitsbergen Treaty and the Nuuk Agreement, the EU as such has become a party to all of the above-named treaties57 and when closely scrutinising EU secondary legislation, one can easily trace how seriously

54 ATS includes the Antarctic Treaty, 1 December 1959, UNTS 402, 71; Convention for the Conservation of Antarctic Seals, 1 June 1972, UNTS 1080 , 175 (CCAS); Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, reprinted in: ILM 19 (1980), 841 (CCAMLR), and Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, reprinted in: ILM 30 (1991), 1455. 55

The area south of 60° S latitude, Article VI Antarctic Treaty and Article I CCAMLR.

56

For comparison of the management regimes of the living marine resources in the Arctic and Antarctic, see, inter alia, Tavis Potts, The Management of Living Marine Resources in the Polar Regions, in: Natalia Loukacheva (ed.), Polar Law Textbook (2010), 65–78. 57 See Council Decision 93/626/EEC of 25 October 1993 concerning the conclusion of the Convention on Biological Diversity, OJ 1993 L 309, 1; Council Decision 94/69/EC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change, OJ 1994 L 33, 11; Council Decision 98/249/EC of 7 October 1997 on the conclusion of the Convention for the protection of the marine environment of the north-east Atlantic, OJ 1998 L 104, 1; Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, OJ 1998 L 179, 1; Council Decision 98/414/EC of 8 June 1998 on the ratification by the European Community of the Agreement for the Implementing of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory fish stocks, OJ 1998 L 189, 14, and Council Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments there under, OJ 2002 L 130, 1.

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international obligations are viewed and effectively made part of the EU’s legal order, usually with the adoption of secondary legislation.58 In order to enjoy a fuller effect it is necessary to implement international and regional legal regimes further, usually vertically – this has been apparent within legal order of the EU.

C. New International Regime?

The changing Arctic environment has led to discussions on the applicability and relevance of several international regimes. Although some authors have argued for a new international treaty for the Arctic,59 a view that can in principle be supported by this article, there seems to be a general consensus on the importance of UNCLOS60 as providing the fundamental international law in relation to Arctic legal governance.61 The Arctic Coastal States have jurisdiction (concerning territorial waters, EEZ and continental shelf62) in the Arctic Ocean, the smallest of the world’s five oceans, according to the principles of UNCLOS.63 Furthermore, in line with the Ilulissat Declaration, the Arctic Five do not deem there to be a need for a separate Arctic treaty.64 Only a portion of the Arctic Ocean is considered to be part of the 58 Including Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, OJ 1991 L 135, 40; Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206, 7; Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ 2003 L 275, 32, and Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ 2005 L 255, 11. 59

See, inter alia, Koivurova (note 17), 14–26.

60

See supra, note 8. Also of importance here is the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 28 July 1994, UNTS 1836, 3. 61

See, inter alia, Koivurova (note 17), passim, and also Heidar (note 3), 157.

62

See further Arts. 2–4, 55–58, and 76–77 UNCLOS et passim.

63

Some of the Arctic Costal States have claimed, or are in the process of doing so, extended continental shelves and initiated formal proceedings by submitting claims to the Commission on the Limits of the Continental Shelf in line with Art. 76 and Annex II UNCLOS. See also Ron Macnab, Nationalizing the Arctic Maritime Commons: UNCLOS Article 76 and the Polar Sea, YPL 2 (2010), 171. 64

See supra, II. B.

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high seas, and a relatively small area ostensibly makes up a section of the international seabed (the Area), thus subjecting it to the jurisdiction of the International Seabed Authority in line with UNCLOS.65 Whether or not a particular Arctic treaty becomes necessary in the future, the importance of UNCLOS as the principal international regime for the Arctic and its governance cannot be underestimated.

D. Concluding Remarks

Although typical for international law, the complex and decentralised nature of Arctic legal governance calls for tight cooperation between the Arctic States and active cooperative forums, as well as for good vertical implementation of international and regional obligations into regional and national legal orders, including the EU’s. A particular Arctic legal regime may be necessary, e.g. similar to the fundaments behind the ATS; there seems however to be a consensus on the importance of UNCLOS as providing the foundations for Arctic legal governance.

IV. Iceland, Arctic-Related Issuesand the EEA Agreement A. Geographical Situation and Natural Resources

Iceland is situated in the North Atlantic Ocean, between latitudes 63° and 67°N and longitudes 25° and 13°W. The Arctic Circle passes through Grímsey, which is an island north of Iceland. Iceland’s vast EEZ stretches north beyond the Arctic Circle, where it meets Greenland’s and Norway’s jurisdictions. Iceland’s interests within its EEZ are mainly related to fisheries and possible oil and gas exploitation within the Dreki Area (Dragon Area) on the Jan Mayen Ridge northeast of Iceland.66 The adjacent jurisdiction 65 66

Arts. 1 (1), 136–137 et seq. UNCLOS.

See also Regulation No. 196/1985 on the Delimitation of the Continental Shelf to the West, South and East (Reglugerð nr. 196/1985 varðandi afmörkun landgrunnsins til vestur, í suður og til austurs), showing the continental shelf’s delimitation (that is identical to the EEZ’s) towards Greenland on the one hand and the Faroe Islands on the other and a medium line. For an agreement between Iceland, Denmark (Faroe Islands) and Norway on the delimitation of the continental shelf outside of the 200 miles see further Ministry of Foreign Affairs, Denmark, Agreed Minutes on the Delimitation of the Continental

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to the east is that of Norway according to bilateral agreements with Norway on the continental shelf in the area between Iceland and Norway, which provide some general principles in addition to delimiting the boundaries of the continental shelf between the Icelandic and Norwegian jurisdictions in the Jan Mayen area. They furthermore contain particular rules on reciprocal rights relating to exploration and exploitation of transboundary hydrocarbon deposits in defined areas in each of the jurisdictions.67 Due to Iceland’s dependence on fisheries management and control,68 prevention of marine pollution plays an important role. Over the years, Iceland’s interest in this respect has led to its active participation in the relevant international and regional organisations, including OSPAR,69 the International Maritime Organization (IMO)70 and the Arctic Council.71It has also developed national legislation determining the sovereign rights within the State’s EEZ and continental shelf72 as well as in the field of marine pollution prevention73 and fisheries management.74 Shelf beyond 200 Nautical Miles between the Faroe Islands, Iceland and Norway in the Southern Part of the Banana Hole of the Northeast Atlantic, 20 September 2006, available at: http://www.regjeringen. no/nb/dep/ud/dok/lover_regler/retningslinjer/2006/Agreed-Minutes.html?id=446839 (accessed on 20 September 2011). 67

See further: Samkomulag við Noreg um landgrunnið á svæðinu milli Íslands og Noregs, 22 October 1981, Stjórnartíðindi C, Advertisement No. 3/1982, available at: http://www.idnadarraduneyti.is/ media/Rafraen_afgreidsla/Noregur-Island-landgrunn.pdf (accessed on 6 August 2011), and also Agreement between Iceland and Norway concerning transboundary hydrocarbon deposits, 3 November 2008, (Samningur milli Íslands og Noregs um kolvetnisauðlindir sem liggja yfir markalínur) available at: http://www.althingi.is/altext/139/s/1196.html (accessed 20 November 2011). 68

See, e.g., on Iceland’s regional fisheries cooperation, inter alia, within the North-East Atlantic Fisheries Commission (NEAFC) and the Northwest Atlantic Fisheries Organization (NAFO), Tore Henriksen/Geir Hønneland/Are Sydnes, Law and Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries Management Regimes (2006), 63–97 and 99–130. 69 See information available at: http://www.ust.is/the-environment-agency-of-iceland/ (accessed on 12 October 2011). 70

Ibid.

71

See supra, note 29.

72

Including Act No. 41/1979 on Territorial Waters, Exclusive Economic Zone and Continental Shelf (Lög nr. 41/1979 um landhelgi, efnahagslögsögu og landgrunn), 1 June 1979, available at: http:// www.althingi.is/lagas/137/1979041.html (accessed on 12 October 2011), and also Act No. 73/1990 on the Ownership of the Icelandic States of Natural Resources of the Continental Shelf (Lög nr. 73/1990 um eignarrétt íslenska ríkisins auðlindum hafsbotnsins), 31 May 1990, available at: http://www.althingi. is/lagas/nuna/1990073.html (accessed on 12 October 2011). 73

Including Act No. 7/1998 on Hygiene and Pollution Control (Lög nr. 7/1998 um hollustuhætti og mengunarvarnir), 24 March 1998, available at: http://www.althingi.is/lagas/137/1998007.html (accessed on 12 October 2011), and Act No. 33/2004 on the Protection Against Pollution of Sea and

364 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 B. Iceland’s Arctic Policy

The Parliamentary Resolution of 28 March 2011 on Iceland’s Policy on Issues Relating to the Arctic75 defines twelve policy areas, referred to in this article as Iceland’s Arctic Policy. In cooperation with other ministries, institutions, associations and the relevant parliamentary committees (Foreign Affairs and Environment), the Minister for Foreign Affairs is responsible for the Policy’s further elaboration and implementation. The Arctic Policy also aims to enhance cooperation with other States and interested parties in relation to the Arctic.76 The Policy’s explanatory notes emphasise Iceland’s interest in the Arctic Region as an Arctic Coastal State; these interests are deemed large due to Iceland’s geographical situation and the fact that access to natural resources has shaped Iceland’s interests from the outset.77 It is clear from the Policy that the strengthening of the Arctic Council as the prime cooperative forum on issues relating to the Arctic, and international decisions concerning Arctic issues being taken by the Council, is viewed as a fundamental issue and reflected in the Policy’s first item.78 The status of Iceland as a coastal State within the Arctic Region is stressed and seen in relation to development and international decisions concerning Arctic issues on the basis of legal, economic, ecological, and geographical arguments.79 Moreover, the Policy draws attention to the enhancement of the understanding that issues concerning the Arctic should be addressed and should not be confined to the Arctic Region but also include the adjoining part of the North Atlantic Ocean. In this regard, the Policy sees the Arctic as a vast area in relation to ecological, economical, political, and security issues, not confined solely to the Arctic Region.80 Within the realm of international Coasts (Lög nr. 33/2004 um varnir gegn mengun hafs og stranda), 1 October 2004, available at: http://www.althingi.is/lagas/nuna/2004033.html (accessed on 12 October 2011). 74

Including Act No. 116/2006 on Fisheries Management as subsequently amended (Lög nr. 116/2006 um stjórn fiskveiða), 17 August 2006, available at: http://www.althingi.is/lagas/nuna/2006116.html (accessed on 12 October 2011). 75

See supra, note 2.

76

General objective of Parliamentary Resolution of 28 March 2011 (note 2).

77

Explanatory notes: Proposal for a Parliamentary Resolution on Iceland’s Policy in Issues Relating to the Arctic (Tillaga til þingsályktunar um stefnu Íslands í málefnum norðurlsóða, 139. löggjafarþing 2010–2011, þskj. 408 – 337. mál). 78

See further item 1 of Parliamentary Resolution of 28 March 2011 (note 2).

79

Ibid., item 2.

80

Ibid., item 3.

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law, the Policy stresses the importance of UNCLOS for resolving Arctic issues and providing a legal frame for subjects relating to the sea, including sailing, fisheries, and exploitation of oil, gas and other resources on the continental shelf, along with the delimitation of sea areas, pollution prevention, research and mechanisms for resolving disputes.81 Cooperation is also emphasised, both with the neighbouring States of Greenland and the Faroe Islands,82 other States, and further parties involved with issues concerning Iceland’s interests.83 In the environmental field, the Policy stresses the necessity to work against manmade climate change and its negative impact in the Arctic. Moreover, due to the increased economic activities in the Arctic Region, the Policy emphasises sustainable utilisation of natural resources and responsibility towards fragile ecosystems and their conservation. Preservation of the unique culture of the Region’s indigenous communities is also highlighted.84 The Policy furthermore draws forward issues relating to civic security and prevention of any militarisation of the Arctic. It also states Iceland’s inter-State cooperation concerning surveillance, search, salvage, and pollution prevention in the Region85 and finally the forging of commercial cooperation of the Arctic States to ensure that Icelanders have the possibility to compete for the growing job opportunities following increased economic activities in the Arctic.86 Iceland’s Arctic Policy does not directly mention the EU; however cooperation with other States, interested parties and several cooperative forums – particularly the Arctic Council – are well reflected in the Arctic Policy. It is nevertheless clear that Iceland’s application to join the EU increases the need for the EU to take the Arctic Region into account geopolitically.87 Iceland, as mentioned in section I., is a State party to the EEA Agreement.88 81

Ibid., item 4.

82

Ibid., item 5.

83

Ibid., item 6.

84

Ibid., item 8.

85

Ibid., item 9. See also infra, F., and supra, note 53 regarding the Nuuk Agreement.

86

See further item 10 of Parliamentary Resolution of 28 March 2011, (note 2).

87

See item D. of European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North (2009/2214((INI)), T/-0024/2011, preamble, and adopted final text in P7_ TA(2011)0024. 88

See supra, note 5.

366 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 C. European Economic Area – The EEA Agreement

For context a few topics relating to the current relationship between the EU and Iceland through the EEA Agreement necessitate some outlining. The EEA Agreement came into force on 1 January 1994.89 Based upon EU’s four freedoms and a system to prevent the distortion of competition,90 the EEA is meant to facilitate economic and other relevant cooperation between the contracting parties. The EEA furthermore incorporates certain flanking and horizontal policies.91 These include several aspects of environmental conservation, including secondary legislation on general environmental issues;92 pollution prevention,93 and climate change.94 Traditional nature protection and biodiversity conservation,95 on the other hand, are excluded from the EEA, along with the EU’s Common Agricultural Policy (CAP) 89

Ibid. The present contracting parties are Iceland, Norway and Liechtenstein (EFTA States) and all the EU Member States: the current total of EEA States is therefore 30. The only EFTA State not an EEA state is Switzerland. See further information on EFTA at: http://www.efta.int/eea.aspx (accessed on 27 July 2011). 90 In line with Art. 2 (2) EEA Agreement, the free movement of goods, persons, services and capital as well as competition. 91 See further Art. 1 (2) EEA Agreement, including research and development, environment, education and social policy. 92 Including Directive 2003/4/EC of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ 2003 L 41, 26, Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175, 40, and Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, OJ 2001 L 197, 30, Annex XX EEA. 93 Including, inter alia, Directive 2008/1/EC of 15 January 2008 concerning integrated pollution prevention and control, OJ 2008 L 24, 8, and Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ 2000 L 327, 1, both included in Annex XX EEA, and also acts such as Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, OJ 2002 L 208, 10; Regulation (EC) No. 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, OJ 2002, L 208, 1, and Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (Recast), OJ 2009, L 131, 57, Annex XIII EEA. 94

See further Annex XX EEA Agreement. Included is Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ 2003 L 275, 32. 95 Notable directives in the nature conservation field that are excluded are Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206, 7, and Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds, OJ 2010 L 20, 1.

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and the Common Fisheries Policy (CFP).96 After the EEA Agreement entered into force, new EU acts, usually regulations and directives, are technically made part of the EEA Agreement when the EEA Joint Committee takes individual decisions in line with Article 7 EEA Agreement.97 The contracting parties are then under an obligation to make the EU acts part of their domestic legal order,98 as the EEA Agreement does not build on constitutional referral to a supranational institution.99 The ECJ lacks jurisdiction over the EEA EFTA States on the basis of the EEA Agreement.100 Although relevant to the operation of the EEA Agreement, general EU policy acts and policy decisions are not made part of the EEA. However, EU secondary legislation incorporated into the EEA may nevertheless reflect particular EU policy issues, which thereby filter into the EEA Agreement. The EEA set-up leaves out particular functions and subject areas of EU law. If Iceland accedes to the EU, particular EU functions and sensitive subject areas will follow. The EEA Agreement lacks transparent objectives directly aimed at the Arctic. Nevertheless several of the incorporated environmental measures should eventually benefit the Arctic environment. If however Iceland accedes to the EU the transformation from the EEA to EU should strengthen the EU’s influence in the Arctic Region at least generally.101 Moreover the geographical situation of Iceland increases the necessity for the EU of taking Arctic geopolitical perspectives into account.

96

See on the scope of the EEA, Stefán Már Stefánsson, Evrópusambandið og Evrópska efnahagssvæðið (2000), 120–121, et passim. See also infra, V. C. 2. 97 See list of decisions available at: http://www.efta.int/legal-texts/eea/list-of-adopted-jointcommittee-decisions-jcds.aspx (accessed on 27 July 2011). 98 This is usually done by enacting new legislation or by issuing administrative regulations implementing the respective EU act. 99

See, inter alia, Méndez-Pinedo (note 5), 113–141. For clarification Iceland follows the ‘dualist’ doctrine. See infra, V. C. 1. See further Gunnar G. Schram, Stjórnskipunarréttur (1999), 384–386. 100 ECJ, Opinion 1/91 of the Court of 14 December 1991, Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, 1991 ECR I-6084. 101

See B. 2. on the Arctic Council.

368 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 D. Iceland’s Accession to the EU

Iceland’s application for EU membership was formally presented to the EU on 16 July 2009.102 According to a Parliamentary Resolution on Application for Accession to the European Union,103 originally submitted to Althingi in May 2009,104 Iceland designates several topics as involving vital interests. These include ensuring the sovereign control and sustainable utilisation of water, energy and fisheries resources. Similarly it is vital to maintain portions of shared or straddling stocks, keeping as high representation of national interests in international agreements on fisheries as possible and the establishment of a particular fisheries control area within Iceland’s EEZ.105 Following a screening process, which was concluded on 21 June 2011, the formal accession negotiations opened at the first intergovernmental conference held in Brussels on 27 July 2011.106 It is clear from the Commission’s Opinion on Iceland’s Application for Membership in the European Union, dated 24 February 2010107 and an Analytical Report prepared by the EU Commission accompanying the Opinion,108 that Iceland has already adopted a significant part of EU law due to the EEA Agreement. In some areas, however, serious efforts need to be made to align Icelandic legislation with EU law and/or implement and enforce it effectively. The areas that the Commission emphasises in this respect include fisheries, agriculture and rural

102

Cf. Iceland’s Application for Membership of the European Union, available at: http://eeas. europa.eu/iceland/iceland_application.pdf (accessed on 22 August 2011). 103

Parliamentary Resolution on Application for Accession to the European Union (Þingsályktun um aðildarumsókn að Evrópusambandinu, þskj. 238 – 38. mál), available at: http://www.althingi.is/ altext/137/s/0283.html (accessed on 22 August 2011). 104

Ibid.

105

See also the opinion of the majority of Parliamentary Committee for Foreign Affairs relating to Proposal for a Parliamentary Resolution on Application for Accession to the European Union, (Nefndarálit. Frá meiri hluta utanríkismálanefndar um till. til þál. um aðildarumsókn að Evrópusambandinu, þskj. 249 – 38. mál), 9 July 2009, available at: http://www.althingi.is/altext/137/s/0249.html (accessed on 27 November 2011). 106

See Ministerial Meeting Opening the Intergovernmental Conference on the Accession of Iceland to the European Union, available at: http://europe.mfa.is/media/esb/27072010-ESB-statement-en.pdf (accessed on 13 October 2011). 107 Communication from the Commission to the European Parliament and the Council. Commission Opinion on Iceland’s application for membership of the European Union, COM(2010)62, 24 February 2010, 1–8. 108

Ibid., 1–95.

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development and the environment.109 In relation to the ongoing membership negotiation, from the outset two areas are expected to be problematic: the CFP, which is relevant to this article, and the CAP, which will not be covered further.110 If Iceland accedes to the EU, the subject areas that are currently excluded from the EEA will be included; however, the extent of their eventual material scope will depend on the details of the accession agreement and any particular arrangements or adjustments included. In relation to the Arctic, potential fishing opportunities for EU nationals within the Icelandic EEZ or from shared or straddling stocks on the basis of rights that Iceland has acquired depend on the outcome of the negotiations.111

E. General Fisheries Policy

As an island situated high in the North Atlantic with a long tradition of fisheries and the utilisation of sea-based natural resources, access to certain fish stocks obviously plays a fundamental role in Iceland’s economy. Moreover, fisheries revenue has been one of the top two major sources of foreign currency entering into the Icelandic economy. The importance of fisheries for Iceland’s economy and further development was clearly reflected with the establishment of the 200 miles fisheries jurisdiction in 1975,112 which led to Iceland’s exclusive utilisation of these valuable sea-based resources and the exclusion of foreign fishing fleets from Icelandic waters.113 Moreover, 109

Ibid., 62, 7.

110

See, inter alia, Proposal for a Parliamentary Resolution on Application for Accession to the European Union (Tillaga til þingsályktunar um aðildarumsókn að Evrópusambandinu, þskj. 38 – 38. mál), May 2009, available at: http://www.althingi.is/altext/137/s/0038.html (accessed on 22 August 2011). 111

See IV. E.

112

In line with Act No. 44/1948 on the Scientific Conservation of the Fishing Banks of the Continental Shelf, with further amendments (Lög nr. 44/1948 um vísindalega verndun fiskimiða landgrunnsins), 7 April 1948, available at: http://www.althingi.is/lagas/nuna/1948044.html (accessed on 13 October 2011) and Regulation No. 299/1975 on the fisheries jurisdiction of Iceland, with amendments (Reglugerð nr. 299/1975 um fiskveiðilandhelgi Íslands, með síðari breytingum) stipulating the size of the jurisdiction as 200 nautical miles from a particular baseline, see further Sec. 1 of the regulation. See further on the decision to enlarge the fisheries jurisdiction in 1975, Helgi Áss Grétarsson, Réttarsaga fiskveiða frá landnámi til 1990 (2008), 43–46. 113 See further, International Court of Justice (ICJ), Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3 and

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the importance of fishing from shared or straddling fish stocks is generally accepted to be increasing. Iceland exercises a rather tight protective policy in practice114 and, with the exception of some, usually reciprocal, bi- and trilateral fishing agreements, foreign fishing fleets have in principle been excluded from the Icelandic fishing jurisdiction since the 1975 regulation came into effect. Not all Icelandic fisheries would necessary be categorised as being Arctic or Arctic related. It is clear however that a reference to Arctic fisheries is not only used as a reference to fisheries physically taking place north of the Arctic Circle. Seemingly it comprises both Arctic and Subarctic marine areas and the waters around Iceland.115 Within the context of this Article the waters around Iceland, not only the portion north of Iceland, would fall under the above. This concurs with the Icelandic Arctic Policy stipulating that Arctic issues should not be addressed too narrowly or confined to the Arctic Region but should also include the adjoining part of the North Atlantic Ocean.116 In addition to fisheries from stocks primarily located within the Icelandic EEZ, such as Icelandic cod, and where foreign vessels have in principle been excluded, Icelandic authorities have over the years concluded several fishing agreements and arrangements with, inter alia, the Faroe Islands, Greenland, Norway, Russia, and the EU.117 At the moment important fisheries relating to either shared or straddling stocks having Arctic reference takes places within the Icelandic EEZ, the jurisdictions of others states or on the high seas in line with in line with agreed arrangements. These include fisheries in herring (Atlanto-Scandian) in the North East Atlantic, where on the basis on an agreement between the interest States, the North East Atlantic Fisheries Commission118 (NEAFC) allocates the total allowable catch (TAC) for each year which is divided id., Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 175. See also Donald R. Rothwell/Tim Stephens, The International Law of the Sea (2010), 83–84 et passim. 114 See further Act No. 116/2006 on Fisheries Management (note 74) providing the legal framework for a management system based upon total allowable catch (TAC system) and individual transferable quotas (ITQ system). See also Helgi Áss Grétarsson, Þjóðin og kvótinn: Um íslenska fiskveiðistjórnkerfið 1991–2010 og stjórnskipuleg álitaefni (2011), particularly 35–96. 115

See Molenaar/Corell (note 23), 4 and 7, and Potts (note 56),73.

116

See supra, IV. B.

117

See further information in, e.g., þskj. 675 – 216. mál, 2010–2011, available at: http://www. althingi.is/altext/139/s/0675.html (accessed on 9 August 2011). 118

Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries, 18 November 1980, UNTS 1285, 129 (NEAFC Convention).

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among the States;119 blue whiting in the North East Atlantic, NEAFC allocates the TAC annually for, inter alia, Iceland, the Faeroe Island, Norway and the EU,120 and mackerel in the North-East Atlantic, where the interested parties (Iceland, EU, Faeroe Islands and Norway) have not been able to reach an agreement on the division, and where Iceland unilaterally decides the TAC within its jurisdiction and on the high seas.121 In line with the principles of the Spitsbergen (Svalbard) Treaty,122 the contracting parties, including Iceland, should in principle be allocated fishing rights on an equal basis within the scope of the Treaty.123 Finally on the basis of a trilateral agreement between Iceland, Norway and Russia,124 Icelandic fishing in the so-called Loophole in the Barents Sea has ceased on behalf of Iceland however is now to some extent conducted within the Norwegian and Russian jurisdiction. Icelandic legislation 119 For the year 2011, see Agreed record of Conclusions of Fisheries Consultations on the Management of the Norwegian Spring-Spawning (Atlanto-Scandian) Herring Stock in the North-East Atlantic for 2011, English text available at: http://www.althingi.is/altext/139/s/1197.html (accessed on 10 November 2011). See also NEAFC Recommendation 5:2011, available at: http://www.neafc.org/ system/files/rec-5_2011_her.pdf (accessed on 10 November 2011). 120 For 2012, see Agreed Record of Conclusions of Fisheries Consultations between Iceland, the European Union, the Faroe Islands and Norway on the Management of Blue Whiting in the North-East Atlantic in 2012 available at: http://www.regjeringen.no/upload/FKD/Vedlegg/Kvoteavtaler/ 2012/Kolmule/Blue_whiting_2011.pdf (accessed 27 November 2011). 121 Regulation No. 987/2010 on the management of mackerel fisheries for Icelandic vessels the year 2011 (Reglugerð nr. 987/2010 um stjórn makrílveiða íslenskra skipa árið 2011), available at: http://www.stjornartidindi.is/Advert.aspx?ID=3a8adc85-daf0-448b-9dc4-0a3199a1d6bf (accessed on 29 November 2011). At the time of writing, October 2011, consultations between the interested Coastal States and the EU have begun are expected to continue in December. See also Grétarsson, Um stjórn veiða á kolmunna og makríl. Hver er réttarstaða Íslands í makríldeilunni? in: Helgi Áss Grétarsson (ed.), Þjóðarspegilinn 2010. Rannsóknir í félagsvísindum XI., October 2010, 28–43, available at: http://skemman.is/stream/get/1946/6858/18382/3/HelgiAssGretarss_LOGbok.pdf (accessed on 29 November 2011). 122

See supra, note 51.

123

See further Art. 2 of the Spitsbergen (Svalbard) Treaty. The legal situation is however far from being uncomplicated as the Treaty was concluded long before the development of the law of the sea, including the establishment of EEZs. In 1977 the Norwegian Government declared a 200 nautical mile fishery protection zone around Svalbard, and has in fact controlled fisheries within the area by allocating quotas to some of the Parties, including to their own nationals, Russia, Greenland, the Faeroe Islands and the EU. This arrangement has been objected to by Iceland. See further, inter alia, Gunnar G. Schram (note 51), 122–129. The EU as such is not a contracting party, but several EU Member States are, including Belgium, Denmark, Finland, France, the Netherlands, Italy, Poland, Sweden and the United Kingdom. 124

Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries, 15 May 1999, available at: http://www.althingi.is/altext/124/s/0002.html (accessed 28 November 2011). See also Bjarni Már Magnússon, The Loophole Dispute from an Icelandic Perspective, Working paper (Centre for Small State Studies), 1–2010.

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furthermore places some restrictions on non-Icelandic residents engaging in business enterprises. This includes foreign investment in fishing operations within the Icelandic fisheries jurisdiction in line with Article 4 of Act No. 34/1991 on Investment by NonResidents in Business Enterprises, which, in principle, reserves this for Icelandic citizens and Icelandic legal persons wholly owned by Icelandic citizens or Icelandic legal persons.125 According to the above, full control of the fisheries resources within the Icelandic fisheries jurisdiction and ensuring Iceland’s interests relating to rights from shared or straddling fish stocks, is a fundamental issue for Iceland’s economy. Membership of the EU and becoming subject to its CFP principles without any particular arrangements, could involve evidently a fundamental changes in the governance of fisheries resources, as only EU institutions would have the final world in decision-making and an exclusive competence to conclude international agreements in this field regardless of Arctic relevance or not. Moreover, although at this time point highly speculative, accession to the EU could, on the basis of the principles of the CFP create new fishing opportunities for the current EU Member States.126

F. Concluding Remarks

Due to Iceland’s location and economic interests, topics relating to fisheries have for a long time been highly relevant – leading to substantial international and regional cooperation. Iceland’s recent Arctic Policy particularly underpins the importance of fisheries and views Iceland as an Arctic Coastal State. Regarding Arctic governance, the role of the Arctic Council is deemed important by Iceland, which views it as the prime cooperative forum relating to Arctic issues. As particular policy areas such as the CFP are excluded from the EEA Agreement, while others, inter alia, general environmental policy, including pollution prevention, the relevant EU acts have been incorporated into the national legal system in line with the EEA Agreement’s principles. If, however, Iceland became an EU Member State then issues relating to the CFP are one of the two areas anticipated to be most problematic to negotiate. In relation to the 125 Act No. 34/1991 on Investment by Non-Residents in Business Enterprises (Lög nr. 34/1991 um fjárfestingu erlendra aðila í atvinnurekstri), 17 April 1991, available at: http://www.althingi.is/lagas/ 139a/1991034.html (accessed on 13 October 2011). 126

See further V. C. 2.

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question whether Iceland’s accession would change EU’s influence in the Arctic, membership should generally strengthen EU’s political influence, inter alia, within the Arctic Council,127 compared with the current situation under the EEA Agreement. However, only time will tell whether Iceland’s accession would substantially affect EU’s fisheries interests in the Arctic, and how this would be manifested in detail.

V. The European Union and the Arctic – Some Aspects A. Arctic Policies

Although lacking a direct coastline on the Arctic Ocean, the EU is definitely not excluded from the Arctic arena; as current EU strategies and policies clearly reflect.128 Based upon existing international law, the European Parliament’s (EP) resolution of 20 January 2011 on a sustainable EU policy for the High North129 tackles the need for a united, coordinated EU policy on the Arctic Region, defining both the EU’s priorities and the potential challenges and strategy. Regard was given to UNCLOS, UNFCCC and CBD; the bulk of existing multilateral declarations by the Arctic

127 This is clearly indicated in European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North (note 87), item 6. See also supra, IV. B. 128

See also an EU initiative, the Northern Dimension policy that is a common forum of the EU, Norway, Iceland and Russia, information available at: http://eeas.europa.eu/north_dim/index_en.htm (accessed on 19 July 2011). In November 2006, the partners adopted a renewed policy document, Political Declaration on the Northern Dimension Policy, 24 November 2006, available at: http://eeas. europa.eu/north_dim/docs/pol_dec_1106_en.pdf (accessed on 19 July 2011), that broadened the scope of the cooperation, and accepted a particular Political Declaration on the Northern Dimension Policy. See also Northern Dimension Policy Framework Document, 24 November 2006, available at: http://eeas.europa.eu/north_dim/docs/frame_pol_1106_en.pdf (accessed on 19 July 2011). 129 European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North. The original motion is in Report on a sustainable EU policy for the High North (2009)2214 (INI), Committee on Foreign Affairs, A7-0377/2010, RR\452510EN.doc PE452.510v03-00. The EP’s resolution was forwarded to the Council, the Commission, the Vice-President/High Representative of the Union for Foreign Affairs and Security Policy, the governments and parliaments of the Member States and the governments and parliaments of the Arctic Region States. See also Graczyk’s arguing for Northern Dimension Action Plans being the formal bases for EU’s policy in the Arctic although acknowledging that EU’s Arctic policy being under construction, Graczyk (note 14), 584–585.

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States and interested parties;130 the Treaty on European Union (TEU)131 and Treaty on the Functioning of the European Union (TFEU)132 (the EU Treaties). The interests of the EEA States and other interested States and partners, including Canada, Russia and the US were also considered. The resolution’s preamble particularly stipulates under item D that Iceland’s application to the EU will increase the need to take the Arctic Region’s geopolitical perspective into account.133 The EP’s resolution furthermore highlights several important policy areas and emphasis, including the following: 1. new world transport routes and associated topics, including safety and security issues in the area;134 2. natural resources and the interests of the sovereign rights of the Arctic States, recommending steps ensuring the highest possible safety, social and environmental standards in the exploration and exploitation of the Region’s resources;135 3. precautionary scientific stock assessments of any new commercial fisheries that are opened in the Arctic Region for the determination of the level of fishing that does not lead to depletion;136 4. climate change and pollution and their effects in the Arctic and the responsibility of the EU in this respect;137

130

Including the Ottawa Declaration of 1996 and the Declaration on the Cooperation in the Barents Euro-Arctic Region of 11 January 1993, available at: http://www.barentsinfo.fi/beac/docs/459_doc_ KirkenesDeclaration.pdf (accessed on 19 July 2011) (Kirkenes Declaration). 131

Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13 (Consolidated Version).

132

Part IV TFEU is particularly mentioned in the reference. It concerns association of the overseas countries and territories that are listed in Annex II TFEU, including, inter alia, Greenland. See further Art. 198 TFEU. 133 European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North (note 129). 134

Ibid., items 8–14.

135

Ibid., items 15–23.

136

Ibid., item 22.

137

Ibid., items 24–30.

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5. sustainable socioeconomic development of the Region, emphasising its indige nous populations;138 6. governance and the recognition of several international regimes, including UNCLOS and the OSPAR Convention, as well as several international and regional cooperative forums and arrangements,139 and finally, 7. the EP requests that several actions be taken by the Commission and, in some instances, the Member States, as a means to strengthening the EU’s position in relation to Arctic policies.140 The new policy framework for the High North takes into account the environmental vulnerability of the area and the effects of climate change, the causes of which mainly originate in areas other than the Arctic.141 It also underlines the relevance of certain EU policies on the Arctic and States falling exclusively under the EU’s competence, including the conservation of marine biological resources under the CFP.142 These policy areas have in common that they both, to differing extents, necessitate international cooperation through international regimes and cooperative forums, as well as particular EU legal acts for internal regulation. This is particularly evident in the case of pollution prevention and climate change issues, where EU regulations can have a direct bearing and influence in the Arctic Region due to the nature of these particular problems. EU Member States are obligated by EU regulations to take particular measures in order to prevent or minimise the environmental effects from pollution and greenhouse gases (GHGs) at their source, as their transfrontier and international effects cannot be confined to the territory of the EU.143 138

Ibid., items 31–41.

139

Ibid., items 42–55.

140

Ibid., items 56–67. See also COM(2008)763 final (note 23), and Council of the European Union, Council Conclusions on Arctic Issues, 8 December 2009, where the Council welcomes the gradual formulation of a policy on Arctic issues to address EU interests and responsibilities, document available at: https://webgate.ec.europa.eu/fpfis/iwt/system/files/Pub%20version%20Arctic%20 Council%20Conclusions%2009.pdf (accessed on 27 June 2011). 141

Inter alia, COM(2008)763 final (note 23) part M and N et passim.

142

Ibid., 3.

143

See further, inter alia, Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61, OJ 2003 L 275, 32; Directive 2004/101/EC of 27 October 2004 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol’s project mechanisms, OJ 2004 L 338, 18, and Directive 2009/29/EC of

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EP’s resolution was forwarded, inter alia, to the Council, the Commission, the governments and parliaments of the Member States and the governments and parliaments of the Arctic Region States.144 It remains however to be seen how effectively EP’s policy resolution, and subsequent actions, will strengthen the EU’s position in the Arctic Region. The general policy towards Arctic fisheries is on the other hand clear.

B. Territorial Scope of EU Law and Governance

It is clear from Article 52 TEU, cf. Article 355 TFEU on territorial scope, that EU law is in general145 only applicable within the geographical jurisdiction of EU Member States. In a sense EU jurisdiction is therefore the sum of all EU Member States’ jurisdictions, including the States’ EEZs;146 however the EEZ of Greenland is excluded from the EU.147 In this context, one of the fundamental principles of public international law necessitates some scrutiny. The generally accepted principle is that States have the sovereign right to exploit their own resources, pursuant to their own environmental and developmental policies, and they concurrently bear the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of regions beyond the limits of national jurisdiction.148 Sovereign rights and responsibilities concerning systems of ownership and property are unchallenged by the EU or EU law,149 although EU law may affect Member States’ conduct in utilising particular natural resources located within their jurisdiction or which have been acquired by an agreement.150 This can encompass the

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 2009 L 140, 63. 144

See supra, note 87.

145

Some exceptions may exist; however their exploration is not necessary for this article.

146

See, inter alia, Till Markus, European Fisheries Law: From Promotion to Management (2009), 32–33. 147

See further supra, I., on Greenland’s withdrawal from the EEC.

148

Principle 2 Declaration on Environment and Development, 13 June 1992, reprinted in: ILM 31 (1992), 876 (Rio Declaration). See also Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (1997), particularly 82–142. 149

See in this respect also Art. 345 TFEU.

150

See on the CFP infra, C. 2.

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use of land in general and acquiescence of polluting activities which take place within their territory or otherwise under their control.151 Due to the origins and nature of the environmental threats currently facing the Arctic, the EU’s regulation of numerous activities taking place within the Member States’ jurisdiction, or under their control, plays a decisive role, as their effects are sometimes global or cannot be confined to the territorial scope of EU law.

C. International Responsibility and Competence

1. The EU as an International Actor – International Agreements The EU is a well established international actor. Over the years, the EU has become a party to several international treaties and has established international responsibility.152 This is possible as the EU has general competence to conclude international agreements with third States and international organisations in line with the TFEU.153 Some of the international agreements that the EU has become party to, basically in the environmental field, have a direct bearing on and applicability in the Arctic Region.154 Important internationally, the EU has an influence in international politics, including in relation to the Arctic, and has taken on responsibility when it comes to transfrontier problems such as the negative effects of climate change. In an attempt to develop international measures for the preservation and indeed improvement of environmental quality, along with the sustainable management of global natural resources, the EU defines and pursues a common policy of cooperation in all fields of 151

See, inter alia, supra, note 143.

152

In line with Art. 216 TFEU, the EU enjoys international competence and may conclude agreements with third countries and international organisations (external competence). This is, inter alia, possible if an agreement is necessary to achieve EU policy objectives or likely to affect common rules or alter their scope. The agreements that are concluded by the EU bind both EU institutions and the Member States. 153 154

See further, inter alia, Arts. 216–217 TFEU, outlining conditions.

Within the environmental field, Art. 191 (4) TFEU (formerly-Art. 174) on the EU’s and the Member States’ cooperation with third countries and competent international organisations stipulates that EU arrangements for cooperation may be the subject of agreements between the EU and third parties. See also Art. 21 (1) TEU, providing the principles guiding EU’s actions on the international scene.

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international relations. This is in line with Article 21 (2) TEU; predominantly item (f).155 As previously introduced, the EU has definitely placed the Arctic and Arctic related issues on its agenda. The EU’s policy documents, including the EP’s Policy Resolution of 20 January 2011,156 reflect a broad and rather high-level approach to the subject, including a particular emphasis relating to any new commercial fisheries that may be opened in the Arctic Region. Article 3 (1)(d) TFEU, however, stipulates the EU’s exclusive competence in areas relating to the conservation of marine biological resources under the CFP, but Article 4 (2) TFEU reflects the EU’s shared competence on issues relating to environment in general.157 In practical terms, EU’s exclusive competence precludes individual Member States from becoming parties to international agreements with third States or international organisations while shared competence leads to a situation where both the EU and individual Member States become parties and exercise competence to a certain extent.158 International agreements concluded by the EU bind both EU institutions and also its Member States.159 They are furthermore capable of creating rights and obligations for the EU’s internal institutions and also the Member States – regardless of whether an individual Member State becomes a party to the same agreement.160 However, the veracity of this viewpoint may depend upon the interpretation of the legal situation in individual cases.161 In spite of the constitutional set-up of individual EU Member States, according to 155

When compared with the legal framework available before Lisbon, set out in the former Art. 11 TEU, the EU’s powers are now clearer and more ambitious, particularly in relation to global environmental problems and natural resources. See further the text of ex–Art. 11 TEU that does not particularly mention the environment or natural resources. 156

See supra, V. A.

157

See further Art. 4 (2)(d), (e), (g), (h), (i), (j) TFEU.

158

See also Alina Kaczorowska, European Union Law (2009), 89–90.

159

See Title VI., Arts. 216–219 TFEU. See also Kaczorowska (note 158), 225–226.

160

See further Kaczorowska (note 158), 298, 326–330, et passim.

161

See inter alia, Case C-459/03, Commission of the European Communities v. Ireland, Judgement of the Court (Grand Chamber) of 29 May 2006, 2006 ECR I-4635, concerning the UNCLOS, generally accepted as mix agreement, and where it had to be examined whether the UNCLOS provisions that Ireland relied upon in the case came within the scope of the EU’s competence (para. 86). The ECJ stipulated that “the question as to whether a provision of a mixed agreement comes within the competence of the Community is one which relates to the attribution and, thus, the very existence of that competence, and not to its exclusive or shared nature” (para. 93). Ireland argued for shared competence (paras. 68–70) as the underlying dispute concerned marine pollution. The ECJ concluded that Ireland had failed to fulfil its obligations as it submitted a dispute to a judicial forum (Annex VII Arbitral Tribunal under UNCLOS) that involved a risk that a forum other than the ECJ would rule on the scope of EU obligations (para. 177).

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standard EU theory, the EU as such follows the monist doctrine.162 However, some EU Member States follow the dualist doctrine.163 All the same, the primacy of EU law is to be respected.164 International agreements concluded by the EU become part of the EU legal sources and are ranked after the EU’s founding treaties (constitutional treaties) and other primary sources, which therefore prevail.165 International agreements are, however, ranked before secondary sources, including regulations and directives. Depending on the subject area and on the basis of the TFEU the freedom to conclude international agreements is thus somewhat circumscribed after a State becomes an EU Member State as they may be disregarded if they are found incompatible with EU law.166 This takes the article to the CFP and its consequences for EU Member States.

2. The EU’s Common Fisheries Policy (CFP) The cornerstone of the EU’s CFP is based on Regulation (EC) No. 2371/2002 on the Conservation and Sustainable Exploitation of Fisheries Resources under the Common Fisheries Policy.167 This provides the basic principles for the EU’s fisheries management system, including the prerequisites for the decisions on the total allowable catch (TAC) for individual fish stocks or fishing effort limits and the allocation of fishing opportunities among the Member States.168 Although the CFP gives individual Member States the freedom to preserve fishing opportunities in the interest of their own nationals within their territorial waters,169 the CFP is based upon the 162

See, inter alia, ibid., 290–298, outlining the basic EU principles.

163

Iceland also follows the dualist approach, supra, note 99.

164

See further on the doctrine of direct applicability of European Union (Community) law. See further, inter alia, Kaczorowska (note 158), 290–298, general principle, and how this has developed in the UK, see further ibid., 342–343. 165

Ibid., 206. Art. 351 (ex-Art. 307) TFEU supports this conclusion.

166

See, e.g., Kaczorowska (note 158), 209–210.

167

Regulation (EC) No. 2371/2002 on the Conservation and Sustainable Exploitation of Fisheries Resources under the Common Fisheries Policy, OJ 2002 L 358, 59. 168

See further Markus (note 146), particularly 65–141.

169

See in this respect Art. 9 Regulation 2371/2002.

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principle of equal access. The EU’s allocation of fishing opportunities takes into account the principle of relative stability of fishing activities for each stock or fishery;170 while the interests of each Member State are to be taken into account in deciding new fishing opportunities.171 According to Article 3 (1)(d) TFEU, the EU has exclusive competence in the area of the conservation of marine biological resources under the CFP within the Union’s waters (Community waters), cf. further Article 3(1) of Regulation No. 2371/2002. The EU has exclusive competence in this regard, meaning that only the EU can legislate; however such legislation may be given in the form of a directive, which by its very nature is a guideline which national legislation must implement and adhere to.172 Other consequences of the exclusive competence regarding the CFP’s supranational approach relate to the EU’s (or the EU institutions’) conducting of external relations in this field and conclusion of international fisheries agreements on access and fisheries management.173 Although Article 52 TEU, cf. Article 355 TFEU, stipulates the territorial scope of EU law – in principle EU law is applicable to the territory of the Member States, including the marine areas included in the concept of territorial sovereignty174 – the EU’s powers to adopt measures to pursue the CFP’s objectives are founded on Article 43 (2) and (3) TFEU that now specifically refers to the common fisheries policy.175 Based on ECJ jurisprudence, and insofar as the Member States have similar competences under public international law, the EU’s institutions are competent to regulate the utilisation and conservation of fisheries resources located within individual Member States’ EEZs as well as on the high seas.176 The EU’s exclusiveness in the field of fisheries and the implementation of the CFP leaves, in principle, few opportunities for individual EU Member States to implement an independent fisheries policy nationally or internationally. As has been demonstrated177 Iceland’s fisheries interests having an Arctic bearing are, inter alia, founded on agreements 170

Art. 20 (1) Regulation 2371/2002.

171

Art. 20 (2) Regulation 2371/2002.

172

Art. 2 (1) TFEU.

173

Markus (note 146), 27 et passim.

174

See further, inter alia, Markus (note 146), and also Arts. 2–4 UNCLOS.

175

See also Markus (note 146).

176

See further on the EU’s competence and the CFP, ibid., 27–61, particularly 32–34.

177

See supra, IV. E.

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and arrangements with the relevant Coastal States and usually depend upon the involvement of NEAFC. Without particular arrangements, the competence to conclude fisheries agreements with third states, and to act within NEAFC or other international organisations, would transfer from Iceland to the EU. Although the actual consequences for Iceland are far from clear, Iceland’s fisheries opportunities would become the EU’s and would, on the basis or the principle of relative stability of fishing activities, be allocated to the Member States through the CFP. In this respect EU’s political and legal status would most likely strengthen considerably from Iceland’s accession.

D. Concluding Remarks

Although the EU is not a newcomer in the Arctic or in Arctic related matters its interest in the Arctic is clearly growing as, inter alia, the recent EP’s policy framework demonstrates. However, due to the fundaments of EU’s competence in issues relating to the conservation of marine biological resources and in line with the principles of the CFP, Iceland’s accession to the EU could fundamentally alter both in relation to the formal competence and also fishing opportunities having an Arctic bearing. This transformation would on the other hand strengthen the EU.

VI. Some Final Conclusions As set out at the beginning of the article, and on the assertion that Iceland’s EU membership would not make a substantial difference in relation to the Arctic, the article’s principal aim was to introduce and discuss topics relating to Iceland’s possible accession to the EU, however, with focus on the Arctic and emphasis on one issue, the CFP. As previously outlined the negotiation process between Iceland and the EU has begun, and two areas are likely to be problematic from the outset, one being the acceptance of the CFP. In comparison to the EEA and the current relationship between Iceland and the EU on that basis, the inclusion of the CFP would result in a fundamental change as the CFP is excluded from the EEA’s material scope. In relation to Arctic governance, there seems to be general consensus on the importance of UNCLOS and some other international regimes, including MARPOL 73/78, OSPAR and the CBD, although a need for a new regional regime should not be

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excluded. However, Arctic governance is far from lacking in complexity, as the political initiative of the Arctic Five demonstrates. The recent EP’s policy framework for the Arctic reflects a general acceptance of responsibility towards the Arctic, including its environment and resources. EU and Icelandic policy documents both emphasise the importance of the role of the Arctic Council as the prime cooperative forum for the Arctic States and the discussion of diverse Arctic topics. The EU’s current Arctic States, Finland and Sweden, and Denmark (due to Greenland which is not an EU Member State) are members of the Council. The EU as such has however not been awarded permanent observation status within the Council. It can however be assumed that if Iceland were to become an EU Member State, the EU’s political status within the Council would strengthen at the least generally as the number of EU states within the Council would be larger. Looking to Iceland’s interests, the utilisation of fishery resources plays a central role. Having the location of Iceland in mind, these interests have an Arctic bearing, and Iceland’s possible accession to the EU could lead to a fundamental change in the governance of fishery resources due to the basic principles of the CFP, and the exclusiveness of EU’s competence in the subject-matter, including a competence to conclude international agreements with third states and international organisations. However these changes would strengthen the EU considerably and could benefit not only the EU politically but also other EU Member States. Until an accession agreement is available the degree of the changes of EU’s influence in the Arctic remains speculative.

GENERAL ARTICLES

International Law, Interpretative Fidelity and the Hermeneutics of Hans-Georg Gadamer EMMANUEL VOYIAKIS(

ABSTRACT: Interpreters want to be faithful to the legal texts and practices and also treat those texts and practices as ‘living instruments’ that are relevant to present concerns. Two dominant schools of thought in international law, positivism and critical legal theory, say that interpreters cannot hold onto both of those desiderata simultaneously. Drawing on the hermeneutic philosophy of Hans-Georg Gadamer, this paper takes the opposite view. Showing fidelity to the interpreted legal texts and practices, and treating them as ‘living instruments’ are not unsophisticated practical ‘ideas’ that turn out to conflict with each other when put under the philosophical lens. They are essential and mutually dependent dimensions of all competent international legal interpretation. KEYWORDS: international law, interpretation, living instrument, objectivity, fidelity, positivism, critical legal theory, hermeneutics

I. Introduction What approach should interpreters of international law take towards the legal texts or practices that they interpret? One ‘idea’ suggests that interpreters of the law should allow international legal texts and practices to ‘speak in their own voice’, or display fidelity to what those texts and practices actually say, as opposed to personal preferences or beliefs of the interpreter. Another ‘idea’ suggests that international law, both treaty and customary, is a ‘living instrument’, and that the interpretation of international legal texts and practices should be sensitive to the changing context in which the task of interpretation takes place.

( Lecturer, Department of Law, London School of Economics & Political Science. I am grateful to Stuart Lakin, Kaiyan Kaikobad, Malgosia Fitzmaurice, Maurice Mendelson, Susan Marks and the Yearbook’s reviewers for their invaluable comments on earlier drafts of the paper.

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Both ideas have strong appeal. They require interpreters of international law to show fidelity to the interpreted texts or practices and allow interpreters to speak in their own voice, which are important for two reasons (but are often lumped together under the ideal of maintaining the law’s ‘objectivity’). The first reason is that this requirement guarantees a distance between what international law says and what any given interpreter of the law (state official; practitioner; judge or arbitrator; academic; student etc.) ‘believes’ the law says. In that respect, insisting on faithful interpretation of interpreted texts or practices rather than the voice of the interpreter is important because it creates awareness of the possibility of interpretative mistake. The second reason is that distinguishing between the voice of the interpreted texts or practices and the voice of the interpreter allows the separation of what international law says from what the interpreter believes international law ought to say. This draws attention to the possibility of interpretative bias or prejudice. The perils of interpretative mistake and interpretative bias are obviously related. An interpreter may misread a text or misconstrue a practice owing to some underlying bias or prejudice about what the interpreter believes the law ought to say. Their relation, though, is not one of necessity, therefore bundling them together under the ideal of objectivity may be analytically unhelpful. An interpreter may make a mistake owing to lack of knowledge of the hard facts, rather than because of any normative bias, while the presence of bias or prejudice does not automatically determine that an interpretation is mistaken. Still, both mistakes and biases or prejudices seem to constitute interpretative failings necessitating reason to guard against. The appeal of the idea that international legal texts and practices ought to be treated as living instruments (or that interpretation of those instruments be ‘evolutive’ in character), is similarly direct. International lawyers do not attend to legal texts and practices out of mere historical curiosity. The enquiry into them is always motivated by some practical concern about the present. This means that the way in which the present situation is understood and how the challenges that are manifested, affect the angle from which international lawyers approach the interpreted texts or practices. Further, international lawyers do not aspire to abide by legal texts and practices slavishly or mechanically, but to abide by them reflectively and to be ready to modify the views of what those texts or practices require or allow when present concerns so dictate. The texts and practices in question become ‘living’ through this process of engagement.

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This paper does not assume that the appeal of the two ideas is incontestable and universal, only that it is wide and significant enough to merit some theoretical attention. One way to substantiate the assumption is to question whether there are many international lawyers who advocate infidelity to interpreted texts and practices, or recommend that those texts and practices are to be treated as ‘dead instruments’. The question to be explored is whether an account of international legal interpretation could hold onto both of those ideas at the same time, i.e. whether we have good grounds to conclude that interpreters of international law can treat international legal texts and practices as living instruments and still be faithful to those texts and practices or allow them to speak in their own voice. This question is worth investigating because two of the dominant theories of international law and its interpretation, positivism and critical legal theory, seem to converge towards a negative conclusion to it. Positivism, this paper argues, places strong emphasis on the idea of fidelity to legal texts and practices, but its insistence that normative considerations play no part in the interpretation of international law, except when some non-normative premises so dictate, is harder to square with the idea of treating those texts and practices as living instruments. In fact, most familiar forms of positivism end up presenting the relationship between the two ideas outlined above as a dilemma. Interpreters may either hear the true voice of the interpreted texts or practices or set them aside (sometimes because those texts or practices instruct interpreters to do so) and exercise fresh normative judgment. Both cannot be done at the same time. The critical claim that international law is radically indeterminate, and that fresh normative choice is a necessary element of all legal interpretation, has an obvious affinity with the idea of treating the interpreted legal texts or practices as living instruments, with the ability to shift and change with present human concerns. However, this paper argues that, this is much harder to reconcile with the aspiration of showing fidelity to those texts or practices. In fact, the critical claim seems to suggest that this ideal of fidelity is no more than an illusion. If that is correct, positivists and critical theorists may take different routes but reach a similar conclusion; it is inconceivable to be faithful to, or hear the true voice of the interpreted international legal texts and practices, and also treat those texts and practices as living instruments. This paper contends that there are sufficient reasons to regard the above conclusion as a mistake. Starting from a brief survey of the contexts in which international lawyers

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have invoked each of the two ideas previously described (see infra, II.), the paper argues that international lawyers ought to doubt some core positivist and critical claims about the nature of legal interpretation and, to that extent, to dispute their joint conclusion about the unfeasibility of holding onto both ideas (see infra, III.). Further, there are ample resources for a theory of international legal interpretation, that attend to both ideas in the tradition of hermeneutics exemplified in the work of Hans-Georg Gadamer (see infra, IV.). In particular, Gadamer’s account of interpretation – and its constituent concepts of the hermeneutic circle and interpretative prejudice – offers not only an intrinsically attractive general explanation of an interpreter’s relationship to the object of interpretation, but also a phenomenologically accurate reflection of how international lawyers go about the task of interpreting international legal texts and practices. If Gadamer is right, the interpretative ideals of hearing the true voice of international legal texts or practices and of treating those texts or practices as living instruments are neither illusory nor opposing. Rather, they mutually support aspects of a unified whole.

II. The Interplay of the Two Ideas in International Legal Interpretation: Some Illustrations One of the best known incarnations of the idea that a treaty is a ‘living instrument’ with the ability to shift and change across time comes from the European Court of Human Rights (ECtHR) decision in Tyrer.1 The ECtHR had to decide on whether the administration of judicial corporal punishment did not outrage local public opinion in the Isle of Man. The Court held that the meaning of Article 3 European Convention on Human Rights,2 concerning the prohibition of inhuman or degrading treatment or punishment, did not depend on public perceptions about the deterrent effect of the punishment in question, but added: The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it, the Court cannot but be influenced by the developments and 1 2

ECtHR, Tyrer v. UK, Judgment of 25 April 1978, Series A, No. 26.

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR).

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commonly accepted standards in the penal policy of the Member States of the Council of Europe in this field.3

The Court’s suggestion that the meaning of the Convention may change over time (sometimes referred to as an instance of ‘evolutive’ interpretation), was echoed a few years later in the case of Dudgeon,4 the first case in which the Court pronounced criminal punishment of homosexual behaviour incompatible with Article 8 ECHR, concerning the right of respect for private life. As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied.5

A noteworthy aspect of Dudgeon is the Court’s suggestion that the main factor that precipitated the evolution in the meaning of Article 8 ECHR was the change in the social understanding of homosexual relationships, rather than the national legislative initiatives that came about as a result of that new social understanding. The idea of regarding a treaty as a living instrument has been invoked outside the human rights context. For example, in the interpretation of the constituent instruments of international organisations, most notably the United Nations Charter.6 In its Advisory Opinion in the Certain Expenses Case,7 the International Court of Justice (ICJ) had to determine whether the deployment of peacekeeping forces by the United Nations General Assembly was consistent with the UN Charter, and therefore a legitimate object of financing from the UN budget. Inter alia, the Court had to address the argument that the Charter allowed the deployment of forces pursuant to the authority of the United Nations, only once the enabling agreements between the Security Council and Member States envisaged in Article 43 UN Charter had been

3

ECtHR (note 1), para. 31 (emphasis added).

4

ECtHR, Dudgeon v. UK, Judgment of 22 October 1981, Series A, No. 45.

5

Ibid., para. 60.

6

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

7

ICJ, Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Reports 1962,

151.

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concluded. In dealing with the argument that the deployment of forces by the United Nations was not possible in the absence of the Article 43 agreements, the Court held: [A]n argument which insists that all measures taken for the maintenance of international peace and security must be financed through agreements concluded under Article 43, would seem to exclude the possibility that the Security Council might act under some other Article of the Charter. The Court cannot accept so limited a view of the powers of the Security Council under the Charter. It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.8

It seems clear that the Court’s reading of the Security Council’s powers was influenced by the fact that no Article 43 agreements had been concluded in the first fifteen years of the United Nations (none have ever been concluded). The ‘emergency situation’ that the Court refers to was precisely this unforeseen practical failure of the enforcement mechanism of Chapter VII, as originally envisaged, to promote the Charter’s objective of maintaining international peace and security. Fassbaender9 has argued that the Court’s willingness to adapt the interpretation of the Charter in accordance with the social context in which the task of interpretation is carried out is consistent with the ‘constitutional nature’ of the Charter. Fassbaender notes that: A constitution […] typically emancipates itself from the forces that brought it about. To use Judge Alvarez’s wonderful metaphor, constitutions “can be compared to ships which leave the yards in which they have been built, and sail away independently, no longer attached to the dockyard.” Hence an interpretation based on the original will of the parties (‘static-subjective interpretation’) is inappropriate. Such an approach would unduly subject the present and the future to whatever a bygone generation declared to be the law, and this would impede the solution of contemporary problems. Instead, an interpretation of a Charter provision must aim to establish, at the time of the interpretation, the objective meaning. It should, in light of the concrete circumstances of the case in question, take account of the dynamic character and inherent incompleteness of any constitution (‘dynamic-evolutionary’ or ‘objective interpretation’).10

A further example of the living instrument idea as a canon for the interpretation of an international treaty is by the Report of the Appellate Body of the WTO in the 8

Ibid., 167.

9

Bardo Fassbaender, The United Nations Charter as a Constitution of the International Community, Columbia Journal of Transnational Law 36 (1998), 529. 10

Ibid., 595.

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Shrimp Turtle11 dispute. The Appellate Body employed contemporary international environmental law to interpret what natural resources count as ‘exhaustible’ under Article XX (g) General Agreement on Tariffs and Trade.12 The Report states that: The words of Art XX(g), ‘exhaustible natural resources’, were actually crafted more than 50 years ago. They must read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment. […] From the perspective embodied in the Preamble to the WTO Agreement, we note that the generic term ‘natural resources’ in Article XX(g) is not ‘static’ in its content or reference but is rather by definition ‘evolutionary’. It is, therefore, pertinent to note that modern international conventions and declarations make frequent references to natural resources as embracing both living and non-living resources.13

Pauwelyn,14 drawing inspiration from Tyrer, recommends this approach as a general canon of interpretation for WTO law. Pauwelyn argues that interpreting most WTO provisions in an evolutionary manner seems both logical and necessary. […] When it comes to regulatory treaties, [the treaty’s] object and purpose soon leads a life that is largely independent and de-linked from the subjective and temporal intentions of the treaty’s original drafters.15

Advocates of the living instrument idea hold that legal texts may be created through distinct historical and political acts, but that their interpretation must be sensitive to changes in the social context in which the task of interpretation is carried out. Such changes may, for example, take the form of an emerging social consensus on a normative concept (Tyrer), an enlightened social understanding of the variety of human relationships (Dudgeon), a greater awareness of modern challenges facing the international community and the role of law in helping to meet them (Shrimp Turtle), or a realisation of the failure of the legislator’s original solution to an important practical problem (Certain Expenses Case). At the same time, advocates of the living instrument idea do not say that the original legislative input and the intentions 11 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 6 November 1998, WT/DS58/AB/R. 12

General Agreement on Tariffs and Trade 1994 (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 190 (GATT). 13

WTO (note 11), paras. 129–130.

14

Joost Pauwelyn, The Nature of WTO Obligations, Jean Monnet Working Paper 1/02, available at: http://centers.law.nyu.edu/jeanmonnet/archive/papers/02/020101.html (accessed on 31 October 2011). 15

Ibid., 34.

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behind it are irrelevant for the purposes of interpretation. The language of deference to the broad principles of the interpreted texts, such as the Preamble to the United Nations Charter or the WTO Agreement16 or the European Convention on Human Rights, aspires to connect the interpreter’s present effort with the legislator’s own abstract conception of the aims and purposes of those texts. The same is true of the implication of continuity that the notion of a ‘living’ organism carries with it: treating a legal text as a living instrument seems to involve some kind of collaboration between author and interpreter on a project conceived by the former and made practically relevant for the present by the latter. Though the living instrument narrative has a satisfying feel to it, the question remains whether there is sufficient reason to endorse it. In this connection, the aspiration to fidelity creates problems for the living instrument idea of interpretation because it seems to cast doubt on the legitimacy of the interpreter of international law seeking to contribute to, or collaborate in the distillation of, the content of the law. In one of the most probing accounts of interpretation in the context of the European Convention on Human Rights, Letsas17defends the living instrument idea. In explaining the ECtHR’s use of the idea in its practice, Letsas writes: The Court was primarily interested in evolution towards the moral truth of ECHR rights, not in evolution towards some commonly accepted standard, regardless of its content. […] [It also] suggests that (a) there is an objective substance or nature of the protected right; (b) evolution is important only because and so far as it gets closer to this substance; (c) for the evolution to constitute a standard of correctness for the ECHR, it is not necessary to establish an explicit consensus among the majority of contracting states. The idea is more that of a hypothetical consensus: given the principles now accepted in the Council of Europe, how would reasonable people agree to apply those principles to concrete human rights cases?18

Other authors have corroborated the view that treating the ECHR as a living instrument does not, in fact, involve a search for an original or at least subsequent consensus amongst Member States,19 but rather reflects a fresh normative choice on the part of the 16 Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, UNTS 1867, 3 (WTO Agreement). 17

George Letsas, The Truth in Autonomous Concepts: How to Interpret the ECHR, European Journal of International Law (EJIL) 15 (2004), 279. 18 19

Ibid., 301 (emphasis in original).

Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996), 195.

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interpreter. The problem, however, is that having an interpreter make a fresh normative choice in determining the meaning of the interpreted texts or practices seems insufficiently sensitive to the ideal of interpretative fidelity. If interpreters of international law can discharge their task, by asking not what the legislators thought or intended about the content of the law, but what they would have thought or intended about it, were they armed with the interpreter’s current factual and normative knowledge. It is hard to envisage whether the present interpreter can still claim to be expressing the voice of the interpreted texts or practices, rather than just their own.20 The concern that interpretation involving fresh normative choice has little claim to being faithful to the interpreted texts or practices has a deep and strong resonance with international lawyers. One of its best known incarnations can be found in the judgment of the ICJ in the South West Africa Cases. The applicants argued that South Africa was in violation of its obligations towards the mandated territory of Namibia on the ground that South Africa had failed to take measures to prepare that territory for independence, but had, in fact, proceeded to annex the territory as its own. The applicants’ argument relied in part on the idea that the purpose of the Mandate system was to create a ‘sacred trust’ on behalf of the international community to be administered by the Mandatory for the benefit of the mandated territory. The Court rejected the appeal of the notion of a ‘sacred trust’ as having any impact on the content of South Africa’s obligations. It said: Throughout this case it has been suggested, directly or indirectly, that humanitarian considerations are sufficient in themselves to generate legal rights and obligations, and that the Court can and should proceed accordingly. The Court does not think so. It is a Court of law, and can take account of moral principles only in so far as these are given sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered. Humanitarian considerations may constitute the inspirational basis for rules of law. […] Such considerations do not, however, in themselves amount to rules of law.21

20

The problem is not alleviated when the interpreter is allowed to choose between the various intentions of the legislator, as recommended by Ryan Goodman, see Ryan Goodman, Human Rights Treaties, Invalid Reservations and State Consent, American Journal of International Law (AJIL) 96 (2002), 531, as the grounds of that choice necessarily involve a fresh normative judgment about the relative importance of each intention. 21

ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, ICJ Reports 1966, 6, paras. 49–50 (emphasis added).

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The Court’s reluctance to regard the exercise of fresh choice about the normative significance of notions or ideals that have not found ‘sufficient expression in legal form’, as having an impact on the content of the law, has been mirrored in several vocal criticisms of the living instrument approach taken by the European Court of Human Rights. Matscher, a former Judge of the Court, has written: Convention organs have in this way, on occasion, reached the limits of what can be regarded as treaty interpretation in the legal sense. At times they have perhaps even crossed the boundary and entered territory which is no longer that of treaty interpretation but is actually legal policy-making. But this, as I understand it, is not for the Court to do; on the contrary, policy-making is a task for the legislature, or the Contracting States themselves, as the case may be.22

Other authors have used less strong language,23 but the charge remains essentially the same: interpretative fidelity is not altogether consistent with allowing the interpreter to exercise fresh normative choice. Similar concerns have been voiced in other contexts where the living instrument approach has been followed.24 The impression that the two ideas are in competition is not alleviated by looking to the general canons of interpretation expressed in Article 31 Vienna Convention on the Law of Treaties.25 In fact, the Vienna Convention canons seem to provide support for both ideas, or to be themselves capable of interpretation in accordance with either one. Article 31 (1) requires international lawyers to interpret a treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” but it does not settle how the object and purpose of a treaty may be determined. One could argue that the object and purpose of a treaty is exhaustively fixed by the original intentions of the parties. One could also argue that the object and purpose of a treaty is only the general aim that the parties took themselves as responding to in a particular situation, and the task of determining what that aim entails for the rights and obligations of 22 Franz Matscher, Methods of Interpretation of the Convention, in: Ronald St. John MacDonald/ Franz Matscher/Herbert Petzold (eds.), The European System for the Protection of Human Rights (1993), 63, 69–70 (emphasis added). 23 Alastair Mowbray, The Creativity of the European Court of Human Rights, Human Rights Law Review 5 (2005), 57, 71; Laurence R. Helfer, Consensus, Coherence and the European Court of Human Rights, Cornell International Law Journal 26 (1993), 133, 140–141. 24 For an excellent summary, see Philippe Sands, Treaty, Custom and the Cross-Fertilization of International Law, Yale Human Rights & Development Law Journal 1 (1998), 85, 87–97. 25

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT).

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treaty parties, which requires the exercise of some normative choice on the interpreter’s part. Similarly, Article 31 (2) advises interpreters to take account of the ‘context’ of the treaty, and could therefore be understood as encouraging an organic approach to interpretation. But this seems to limit that context to considerations that evince actual agreement between the parties. Finally, Article 31 (3) requires that interpretation take account, together with the context, of “any relevant rules of international law applicable in the relations between the parties.” However, it does not specify a ‘criterion of relevance’ or lay out in detail how the taking-into-account of other rules of international law is supposed to affect interpretation. This does not mean that these ambiguities reveal any inherent defect in the Vienna Convention canons, but it shows that one cannot invoke them readily as evidence for resolving the apparent stand-off between the living instrument and fidelity ideas. As already indicated, the remainder of the paper argues that this stand-off is apparent, not real, and that it is possible to hold both that interpreters of international law should allow the interpreted texts or practices to speak for themselves and that those texts and practices are to be treated as living instruments. Before turning to that account, it is important to establish that positivism and critical legal theory, the two main theoretical approaches to international law and its interpretation, are both uncomfortable with this result.

III. Making Theoretical Sense of the Two Ideas: Positivism and Critical Theory Positivism and critical legal perspectives are two of the dominant theories in international law and each theory comes with its own distinctive approach to international legal interpretation. The primary claim pursued here is that both approaches reach the conclusion that the idea of interpretative fidelity and treating international legal texts and practices as living instruments cannot be accommodated under a single interpretative scheme. Critical theory is premised on the idea that every act of interpretation involves fresh normative choice and rejects the suggestion that the interpreted texts or practices have their own distinctive voice, or that their meaning can be independent from the views of the interpreter. Positivism pledges strong allegiance to the idea of fidelity

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to the interpreted international legal materials. But its constitutive claim that it is possible to determine the content of the law without recourse to normative resources is hard to associate with the idea that those materials are ‘living’ in any meaningful sense. So if neither positivism nor critical theory allows one to maintain both the idea of interpretative fidelity and the idea of treating the objects of legal interpretation as living instruments, as part of a single interpretative scheme, then, there is sufficient reason to look for alternatives, whatever the respective merits of each theoretical approach.

A. Critical Legal Theory and Fidelity as an Illusion

The most striking claim that critical legal theorists have brought to debates about the content and interpretation of international legal texts and practices is that the content of those texts and practices is not just sporadically but radically indeterminate.26 This claim relies on three ideas. First, all perception of reality, including perceptions about the actions and intentions of others, are contingent on the assumptions, prejudices and biases of the perceiver. Unmediated access to the content of another perceiver’s thoughts and actions is an illusion. Second, almost all assumptions that the perceiving agent may make in that process are contestable. Third, there are no neutral points from which to arbitrate disagreements to show which assumptions are correct, or no external yardstick against which the opposing views might be measured. As Koskenniemi has put it: We cannot convince someone who disagrees with our interpretation [of the author’s expression] by referring to the correspondence between our interpretation and the expression’s ‘real’ extra-conceptual meaning. That would assume that we are already in possession of the correct meaning – in which case the whole interpretative effort would be unnecessary […]. There is, then, no ‘objective’ meaning to the linguistic expressions of [legal] rules.27 26

See generally Duncan Kennedy, A Critique of Adjudication (1997); Allan C. Hutchinson, Democracy and Determinacy: An Essay on Legal Interpretation, University of Miami Law Review 43 (1989), 541. For a critical discussion see Ken Kress, Legal Indeterminacy, California Law Review 77 (1989), 283. 27 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (reissue with new epilogue, 2005), 531. Similar claims have been made in general legal theory by Roberto Unger, Knowledge and Politics (1984), 66–67; William M. Sullivan, Reconstructing Public Philosophy (1982), 38–40; Mark Kelman, A Guide to Critical Legal Studies (1987), 64 et seq. For a response see Will Kymlicka, Contemporary Political Philosophy (1990), 98–100.

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Taken together, the ideas that make up the critical claim of radical indeterminacy constitute a flat rejection of the notion that there is a matter-of-fact about what international law requires or allows, that is independent of the views of any particular interpreter. If the content of the law is radically indeterminate, the idea of being faithful to the content of the law as laid down by the legislator is no more than an illusion. That is so not only because interpreters lack any privileged vantage point for accessing the intentions of the legislator, but also because any such access that interpreters claim will be contingent on contestable assumptions that interpreters have no objective way to arbitrate. A second upshot of this critical claim is that, in essence, all interpretation is fresh normative choice on the part of the interpreter. This is not to say that the interpreter is not subject to constraints, but that those constraints are imposed by the interpreter’s own context rather than the object of interpretation itself. Such constraints necessarily include the interpreter’s normative biases and prejudices, but they also include concerns about the extent to which the interpreter’s audience is likely to perceive the offered interpretation as correct (for example, because it shares or rejects the interpreter’s normative assumptions or biases). So while prejudice may disable interpreters from having unmediated access to the content of the legislator’s intentions, therefore showing the ideal of fidelity to those intentions to be illusory, it may actually enable them to convince their present audience about the correctness of their interpretation and the falsity of competing ones.

B. Positivism and the Semantics of Retrieval

The core positivist claim is that the interpretation of international legal rules is something that can be done without engaging in moral or ethical reflection; in short, without making an evaluative judgment.28 Interpreting international law is an effort to understand what the interpreted legal texts or practices say, not to judge whether the rules are just or unjust, good or bad, fair or unfair. The latter projects may be fine and important in their own right (after all, one can only hope to make the law better 28

Perhaps the clearest exponent of that view is Georg Schwarzenberger, see Georg Schwarzenberger, The Inductive Approach to International Law (1957), 4–13. See also Lassa Oppenheim, The Science of International Law: Its Task and Method, AJIL 2 (1908), 313, 333.

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through evaluative criticism) but they are not the tasks of the interpreter of the law. To use the metaphor employed in previous sections, proper legal interpretation, for positivists, is interpretation that lets the interpreted legal texts, or the facts of the interpreted practices, speak for themselves and does not attempt to substitute their ‘voice’ with that of the interpreter. Oppenheim expresses these positivist commitments very clearly: I have a last sin of method to discuss, which is frequently committed by workers in the field of the science of international law: Errors of judgment created by political, humanitarian, or other bias. Many a controversy which is ventilated at greater or shorter length owes its origin to such errors of judgment. If the positive is the right method of the science of international law, we must endeavor to get rid of bias of all kinds. […] our science will not succeed in this point, unless all authors endeavor to write in a truly international and independent spirit, and unless they make an effort to keep in the background their individual ideas concerning politics, morality, humanity and justice. We must take the facts of life as they are and the rules of international law as we find them practiced in everyday life. 29

Weil has voiced the same aspiration: [I]f the heterogeneity of the components of international society, far from being an obstacle to the formation of international law, is on the contrary its conditio sine qua non, it follows that international law will be unable to carry out its function of coordination unless it is neutral. This certainly holds true for religious neutrality. […] But ideological neutrality is also necessary to guarantee the coexistence of heterogeneous entities in a pluralistic society. Both religious and ideological neutrality are inherent in the concept of international law.30

Simma and Paulus have put the argument slightly differently. Explaining the positivist position in relation to the problem of responsibility for human rights abuses in internal conflicts, they argue that: Our humanitarian instincts strongly demand that we treat the legal consequences of distinctions between international and internal conflicts, between wartime and peacetime atrocities, as irrelevant. On the other hand, our professionalism does not allow us simply to follow this urge without regard to ‘international law as it is’, as compared to ‘how it should 29 30

Oppenheim (note 28), 333 and 355.

Prosper Weil, Towards Relative Normativity in International Law?, AJIL 77 (1983), 413, 420. Weil’s view is a classic example of theoretical confusion, for it appears to make an argument from the need to preserve and respect diversity and heterogeneity to the idea that law should be evaluatively neutral. This obvious non-sequitur makes Weil’s view difficult to categorise. Is he a normative positivist, as his appeal to heterogeneity would suggest? Or does he believe in the semantic thesis, as his appeal to the possibility of neutrality implies?

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be’ […]. Thus, the lawyer must, as far as possible, openly distinguish between the ‘law in the books’ and her personal prejudices or political motivations.31

For Simma and Paulus, the need for neutrality in legal interpretation is entailed by the very distinction between what the law is and what the law ought to be (or between lex lata and lex ferenda). Since legal interpretation is concerned only with the first task, it should be kept free from the evaluations and judgments inherent in the second task.32 Arguably, the core argument in favour of the claim that the interpretation of a rule should not involve a normative judgment starts from the idea of fidelity, understood as the recommendation that legal interpretation should allow the interpreted text or practice to speak for itself, without substituting its voice with that of the interpreter. Interpreting international law, and indeed any social practice, is not a report of one’s own feelings and predispositions towards the practice. It is an effort to understand a subject-matter that is distinct from the disposition of the interpreter. In that sense, correct interpretation must be interpretation that allows itself to be governed by the nature of the subject-matter, rather than the beliefs and prejudices of the interpreter. This fundamental idea seems to have two corollaries. On the one hand, it raises a question: how can one achieve a direct and unmediated contact with the true meaning of the interpreted text or practice? On the other hand, and more importantly, it expresses a general hermeneutic ideal: that the discovery of the correct meaning of a text or utterance requires the self-effacement of the interpreter, the careful elimination of personal biases, presuppositions or prejudices about the meaning of the ‘object’ of interpretation. One aspect of this interpretative ideal is that correct interpretation must always be independent of the person of the interpreter and “capable of determination […] on the basis of legal standards that are valid and applicable independently 31

Bruno Simma/Andreas Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, AJIL 93 (1999), 302, 303, 306 (emphasis added). 32

In the words of John Austin, “the existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry,” John Austin, The Province of Jurisprudence Determined (ed. by Wilfrid E. Rumble, 1995), 157. Cf. Weil (note 30), 421 for the view that positivism “is simply intended to emphasize the necessity of envisaging international law as positive law, i.e., as lex lata. This means that […] the distinction between lex lata and lex ferenda must be maintained with no abatement of either its scope or its rigour” (footnotes omitted).

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of the purposes of the judge, of the parties or any particular State.”33 This is not to deny that legal interpretation will always need to rely on a criterion of salience or significance and will therefore require the exercise of some judgment on the interpreter’s part. The point, rather, is that this judgment of salience is not evaluative in character but reconstructive. Its proper aim is not to engage the interpreter’s evaluative beliefs but to bring to light a meaning that pre-exists the interpreter’s decision to engage with a text or practice, and to ensure that the pre-existing meaning is rendered pure and unchanged in the present. This semantic ideal is positivist in character precisely because it sees interpretation as the recovery in the present of a meaning previously ‘posited’ in the object of interpretation. Who posits the meaning of the interpreted proposition and how should one go about reconstructing it? Positivists have put forward two suggestions in this regard. The first is that the meaning of the proposition is advanced by its author and, therefore, that correct interpretation requires the recovery or the reconstruction of the author’s original intention – one might call this view intentionalism. The second suggestion is that the meaning of a proposition is fixed not so much by the author’s original intentions but by the attitudes and linguistic conventions of the community using the language in which the proposition has been stated. This view might be called conventionalism. The idea that the task of good interpretation is to retrieve authorial (or legislative) intention is not consistent with taking the object of interpretation to be a living instrument, the meaning of which may change or shift with the context in which interpretation takes place. Intentions are states of mind with an identity, a location and a history, so their faithful retrieval cannot depend on events, attitudes or intentions of persons other than the author, in places and in historical contexts other than the author’s own. An intentionalist need not deny that re-imagining a legal text or practice to make it better suited to present circumstances is a worthwhile exercise. But the intentionalist must deny that this effort of re-imagining is an interpretative effort. It follows that the intentionalist version of the positivist semantics of retrieval must reject the compatibility of the two ideas being discussed in this paper.

33

Oscar Schachter, International Law in Theory and Practice: General Course in Public International Law, Recueil des Cours 178 (5) (1982), 58.

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Aside from its commitment to treating the ideas of fidelity and ‘living instrument’ interpretation as antithetical, is intentionalism a semantic theory that we have reason to endorse? Arguably in another context,34 and despite its initial plausibility, the blunt appeal for intentionalism is unable to resolve any important questions about the content of international law for two reasons. First, when the authors of a text or practice are more than one, as is almost invariably the case in international lawmaking, one needs to know whose intentions should count as those of the original author. Second, even in the unlikely event that all authors of the interpreted text or practice shared the same intentions about its meaning, there is need to determine the pitch of interpreters appeal to their intentions. Thus, one should decide which of their shared intentions (some of which will be more abstract than others) ought to be followed. Although this point is not essential to the present concern, if the above argument holds, then there is reason to reject intentionalism as a plausible theory of international legal interpretation. Conventionalism would appear to fare much better. Its advantage over intentionalism is that it has consciously taken on board many of the insights of 20th century philosophy into the intersubjective nature of language and the public character of the standards for its correct use.35 For conventionalists, meaning resides in the ‘conventions’ or implicit agreements that competent users of a language (linguistic communities) observe when they speak. It is vain to look for some other non-conventional ground on which to tell whether the use of a term or a concept is right or wrong.36 The conventionalist approach to interpretation is much more compatible with the idea that the meaning of legal texts and practices may shift over time. Hence, conventionalism shows some potential for combining the fidelity and the living instrument ideas as one whole. That potential, however, is rather superficial for two reasons. 34

See Emmanuel Voyiakis, Customary International Law and the Place of Normative Considerations, American Journal of Jurisprudence 55 (2010), 163. 35

For a discussion of the relevance of the inter-subjectivity of language for international law, see Emmanuel Voyiakis, International Law and the Objectivity of Value, Leiden Journal of International Law 22 (2009), 51, 69–72. 36

This conventionalist view of legal interpretation has been applied to international law; see especially Stanley Eugene Fish, Is There A Text in This Class? The Authority of Interpretative Communities (1980); id., Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989) and Ian Johnstone, Treaty Interpretation: The Authority of Interpretative Communities, Michigan Journal of International Law 12 (1991), 371; id., Security Council Deliberations: The Power of the Better Argument, EJIL 14 (2003), 437.

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First, whereas the notion of treating international legal texts and practices as living instruments requires interpreters to make fresh normative choices in the light of changes in the social, moral and political context in which the task of interpretation takes place, conventionalism allows for changes in legal meaning only when a new convention has developed. In fact, in affirming some change in legal meaning, the interpreter is not exercising any kind of normative choice at all, but is rather reporting the newly created interpretative convention. Second, and more importantly, the idea that legal meaning depends on conventions that develop amongst interpreters may be broadly consonant with a ‘living instrument’ interpretative attitude. Nevertheless, it seems to reject the idea that interpretation retrieves rather than creates meaning. If a new interpretative convention can change the meaning of a legal text or practice, then all legal meaning turns on the state of contemporary conventions. This question remains: what is the interpretative convention that members of this community currently share? There is nothing to be retrieved, nothing of the past to be faithful to. This fact alone may not disqualify conventionalism from being a plausible theory of legal meaning, but it shows it to have serious difficulty in marrying the fidelity and living instrument ideas. This difficulty aside, the theory of conventionalism suffers from some more general and debilitating problems. A first difficulty with conventionalism is that it offers a weak explanation of disagreement amongst lawyers, inasmuch as it holds that “divergence from the conventions and practices of the relevant interpretative community signifies that the interpreter has taken himself or herself out of it altogether.”37 This claim sounds doubly implausible. On the one hand, the idea that people who disagree about the interpretation of particular legal rules cannot belong to the same interpretative community is counterintuitive. The very existence of disagreement amongst any two interpreters must already presuppose that these interpreters share a common language and, therefore, a generous background of beliefs.38 In any event, the conventionalist claim risks trivialising the notion of community membership, in the sense that it reduces the rich and complex relationships that make up this membership to the fact of intersubjective agreement about individual propositions. On the other hand, the idea that when interpreters disagree about a certain proposition they must 37

Johnstone, Treaty Interpretation (note 36), 377–378.

38

See Voyiakis (note 35), 63.

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belong to different interpretative communities seems to have a distinctly debilitating effect on conversational ethics, in the sense that it deprives competing views of any chance of exercising critical impact on each other. If Fish and Johnstone are right, it is difficult to see how people who disagree could offer any argument to each other; their only option would be to say that they do not understand each other’s perspective.39 More importantly, conventionalism seems weak even in cases where interpreters of a practice happen to agree with each other about what the practice means. Suppose that all international lawyers agree that a treaty provision should be interpreted in a certain way, and whenever they are asked to identify the meaning of that provision, they all give more or less the same response and all find this interpretation so natural that they think it ‘goes without saying’. Do these international lawyers agree on their interpretations because there is a convention as to how the treaty must be read or because they converge on their independent convictions about the proper interpretation of the treaty? The difference between the two options is immense. Ronald Dworkin has explained it as follows: If lawyers think a particular proposition about legislation is true by convention, they will not think they need any substantive reason for accepting it [for example that it is most consistent with a certain principle of law]. So any substantive attack on the proposition will be out of order […], just as an attack on the wisdom of the rules of chess is out of order within a game. But if the consensus is one of conviction, then dissent, however surprising, will not be out of order in the same way, because everyone will recognize that an attack on the substantive case for the proposition is an attack on the proposition itself. The consensus will last only so long as most lawyers accept the convictions that support it.40

The choice between explaining consensus as evidence of a social convention and explaining it as a convergence of independent convictions cannot (on pain of circularity) be made on conventional grounds. For one thing, even if the conventionalist story is accepted, there is need to know at what level one ought to look for a convention amongst international lawyers. Should convergence at the level of particular interpretations be sought, or should one look for convergence at the level of the nature of interpretation itself? Suppose, for example, that all international lawyers agree that proper interpretation turns on the conventions of their ‘international 39

Cf. Reem Bahdi, Truth and Method in the Domestic Application of International Law, Canadian Journal of Law & Jurisprudence 15 (2002), 255, 262–263. 40

Ronald Dworkin, Law’s Empire (1986), 136.

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interpretative community’. Do they agree because there is a convention to that effect or because each of them is convinced that there are substantively good reasons to hold this view, even if other lawyers happened to disagree? If the former were the case, then the only interesting question an interpreter could ever pose would be whether international lawyers agree or disagree on what the law means. The competing views themselves would never have to be discussed, because the very fact that they are contentious would immediately disqualify them from being correct interpretations. By contrast, if the interpretative agreement of international lawyers were one of independent conviction, then there would be ample room for argument, substantive debate and reasonable disagreement, unless at some point a rival interpretation came along. But whichever of the two views is correct, it should be clear that conventionalism evinces a dilemma that it lacks the resources to resolve. One way or another, the mere fact of agreement of international lawyers on the matters of interpretation is itself something that needs to be given sense; it cannot provide an argument for any view about how the treaty should be interpreted.

C. Drawing the Threads Together

The previous section used examples from international practice to outline two ideas about the nature of international legal interpretation. The first idea is that interpreters of international law should display fidelity towards the interpreted legal texts or practices, or that they should allow those texts or practices to speak in their own voice. The second idea is that interpreters should treat those texts and practices as living instruments, the meaning of which may shift depending on the social context in which the task of interpretation is carried out. Two of the dominant theoretical approaches to international law conclude that it is not possible to hold both ideas simultaneously. Critical legal theory claims that the idea of fidelity is altogether misconceived, as all interpretation is necessarily mediated by the interpreter’s own biases and prejudices. Positivism arrives at the same conclusion, contending that fidelity requires the retrieval of posited meaning and is, to that extent, incompatible with the exercise of fresh normative choice on the part of the interpreter. The version of positivist semantics that comes closest to accommodating the idea of treating legal texts and practices as living instruments, conventionalism, seems to lose contact with the idea of fidelity which motivates it.

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As indicated in the introduction, the consensus between the critical and the positivist perspectives on the non-compatibility of the two ideas is mistaken. The next section tries to substantiate that claim by drawing on the hermeneutic philosophy of Hans-Georg Gadamer.41 In particular, it claims that hearing the true voice of the interpreted legal text or practice does not require the self-effacement of the interpreter and the elimination of one’s presuppositions and prejudices, since it is exactly those presuppositions that allow the interpreted text or practice to assert its ‘otherness’ vis-à-vis the interpreter. To that extent, the opposition between the idea of showing fidelity towards the object of interpretation and the idea of treating it as a living instrument is more apparent than real. Although the style of Gadamer’s account in ‘Truth and Method’ is sometimes rather difficult, its general thrust is quite simple and some of its points will surely sound familiar to readers of Wittgenstein, Finnis and Dworkin. The reason for devoting particular attention to Gadamer’s hermeneutics is that it provides a fuller insight to the fundamental nature of interpretation and the relation between the person of the interpreter and the interpreted text or practice. The purpose here is not to provide a full overview of Gadamer’s great contribution to hermeneutics, but to borrow some key elements of thought, to highlight their interrelation and to explain their bearing on the problem of determining the content of international law.

IV. “We Understand Differently, If We Understand At All”: Hans-Georg Gadamer on Interpretation Recall the ideal of interpretation that informs the aspiration to interpretative fidelity. Interpretation must allow the interpreted text or practice to ‘speak for itself’, free of distorting mediation. Its purpose must be to convey the true meaning of the text or practice itself, not the interpreter’s personal view of it. Those who advocate the neutrality of legal interpretation believe that this ideal requires the interpreter to efface their presence in the interpretation. That is, in order to lay a claim to truth, an interpretation of a text or practice must not be affected by the contingencies of the 41

Nicos Stavropoulos has developed a suitably radical account of interpretation that attacks positivist semantics by drawing on Hilary Putnam’s and Saul Kripke’s theories of truth and meaning, see Nicos Stavropoulos, Objectivity in Law (1999).

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interpreter’s own situation; this does not mean that the interpreter should have no view whatsoever. Like any person, the interpreter will have personal beliefs and presuppositions about the meaning of a text or practice, which might sometimes turn out to be correct. But in order to understand the text or practice for what it really is, interpreters must not allow these presuppositions to affect the performance of their role as an interpreter, in the same way that a scientist’s personal beliefs and preferences should not get in the way of scientific observations about the natural world. In short, advocates of neutral semantics consider it a requirement of true interpretation that the interpreter should be able to rise above personal prejudices and presuppositions. In ‘Truth and Method’, Hans-Georg Gadamer takes issue with this idea and claims that understanding and interpretation do not work in a ‘scientific’ manner. Interpretation requires the interpreter to engage with the interpreted text or practice, to place that text or practice within a stream of history and tradition to which the interpreter belongs. This means that interpreting a social practice is not so much a matter of knowing something (of acquiring complete mastery over some ‘object’ of knowledge), as a matter of knowing how to engage in an open exchange of question and answer that allows the interpreted text or practice to reveal its full meaning and significance.42 The engaged nature of the ability to understand and interpret each other contradicts the model of neutral interpretation, according to which the interpreter’s presuppositions and prejudices are obstacles to the truth of interpretation. Good interpretation, Gadamer urges, is not interpretation that has become free of all prejudice, but interpretation that is conscious of its prejudices and can therefore bring them to the foreground of understanding, and scrutinise them for their efficacy in allowing the true voice of the interpreted text or practice to be heard. For ease of exposition, Gadamer’s account will be divided in two parts, the first dealing with the phenomenology of interpretation, the second dealing with Gadamer’s rehabilitation of the idea of prejudices as enabling aspects of one’s ability to interpret.

42

For distinction between ‘knowing that’ and ‘knowing how’ see Ludwig Wittgenstein, Philosophical Investigations (1954), paras. 76–80.

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A. The Phenomenology of Interpretation: Tradition and the Hermeneutic Circle

Can an interpreter of a social practice efface personal preconceptions from one’s work in the way a natural scientist could? To start with, consider the suggestion that the aim of understanding in human sciences is very different from the aim of understanding in the natural sciences. Gadamer explains the difference between them as follows: In the human sciences we cannot speak of an object of research in the same sense as in the natural sciences, where research penetrates more and more deeply into nature. Rather, in the human sciences the particular research questions […] that we are interested in pursuing are motivated in a special way by the present and its interests. The theme and object of the research are actually constituted by the motivation of the inquiry. […] [F]or this reason it is not possible to speak of an ‘object in itself’ toward which its research is directed.43

One aspect of this contrast should be immediately apparent. The purpose of enquiry in the human sciences is never to acquire knowledge by standing over and above a certain ‘object’ of attention. It is to illuminate what is significant in the history of human action from the point of view of present interests and purposes. The special significance of the interpreter’s present emerges “at the beginning of any such research as well as at the end, in choosing the theme to be investigated, awakening the desire to investigate, gaining a new problematic.”44 But the contrast between natural sciences and humanities goes deeper than that. By reflecting on the sense of what ‘progress’ is in the natural sciences compared to the humanities, a deeper understanding can be forged. Generally speaking, progress is associated in Physics, Chemistry or Biology with the acquisition of wider and deeper knowledge of facts about the workings of nature or the development new abilities to manipulate natural elements. Progress in humanities, say in Political Philosophy or Law, has a different meaning. Genuine progress can be made in thoughts about the concepts of justice or legality without acquiring any new information about what the external world is like. In fact, such progress may take the form of a return to ancient 43

Hans-Georg Gadamer, Truth and Method (transl. by Joel Weinsheimer/Donald G. Marshall, 1987), 285. 44

Ibid., 283 (emphasis added). John Finnis expresses exactly this point when he says that all description presupposes a ‘criterion of significance’, see John Finnis, Natural Law and Natural Rights (1980), 18–19.

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thought, for example when we come to realise that a philosopher who lived thousands of years before, and who probably had nothing like present informational resources, may actually have had much better insight into the subject matter of research. A political philosopher cannot begin to think seriously about the subject without engaging with Aristotle’s ‘Nicomachean Ethics’ or Plato’s ‘Republic’, just as an international theorist cannot begin to think seriously about international law without engaging with the works of Hersch Lauterpacht. By contrast, a physicist can excel in their field without ever looking at Aristotle’s ‘Physics’ and a doctor can pursue Medicine without having the slightest knowledge of the works of Hippocrates. Although all these works would be referred to as ‘classics’ in their field, in humanities the term carries a significance that is only partly present in the natural sciences.45 It is not an exaggeration to say that the classics of Political Philosophy or International Law demand to be studied and interpreted in a much more pressing and immediate way than the classics of Medicine and Physics. What is the source and character of the demand that social practices and their classic interpretations make on students of humanities? Gadamer regards this source as ‘the soul of all hermeneutics’: the realisation that the other person may have a better appreciation of the topic that concerns us.46 This better appreciation, however, is not just a matter of the other person possessing more answers about that topic than the other. It is primarily a matter of that person asking the right questions about the topic or having the right perspective on it. The idea again is quite straightforward. What makes social practices and their classic interpretations required items of study is the fact that understanding them better allows one to approach the facts of the social practice from the right perspective, or with the right questions in mind. Lawyers immerse themselves in Aristotle’s ethics or Lauterpacht’s views about the function of international law not because these thinkers had more information, but because lawyers believe that their perspective will aid better understanding of ethical and legal practices. In much the same way, the ways rules of international law have been interpreted and applied in the past, by States and international courts and tribunals, are examined in order to gain a proper perspective on the point and purpose of those practices. In both cases, the interest in the past is grounded on the realisation that the 45

Gadamer (note 43), 285 et seq.

46

Ibid., 302–306.

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understanding of practices need to be informed by the insights of its competent past interpreters, who once stood and faced the same challenges like present interpreters. Following Gadamer the body of social practice and previous interpretations that the interpreter must engage with, can be called a stream of tradition. If understanding a social practice requires one to engage with the stream of tradition that defines and sustains it, the next challenge is to describe more precisely what is involved in this act of engagement. Gadamer borrows and develops this idea from the work of Hegel and Heidegger. Engagement with tradition, Gadamer says, has the structure of a dialogue or a continuous process of question and answer.47 This idea is really the fusion of the need for engagement with tradition with the insight that all research in the human sciences is motivated by the problems and questions of historical present. Gadamer draws particular attention to two features of this dialectical process. First, engagement with tradition always begins with a question, for example a request for information. Second, quite often tradition will not simply provide answers to questions, but it will pose questions of its own, prompting one to reconsider the perspective from which the question is addressed. For example, sometimes people approach a text or practice with the wrong expectations, and, thus, risk missing its real meaning. Suppose an individual was presented with a volume of work, with the instruction that it is a collection of poetry, and as soon as the individual begins to read past the second or third phrase, comes the realisation that the text steadfastly refuses to answer the questions that seem worth asking within any work belonging to the genre of poetry. It has no meter or rhyme, it has footnotes, and it does not address matters which are a standard in poetry. The text would defeat almost all expectations about how a poem should look and read. An experienced interpreter would probably come to conclude that the only way to make the text intelligible is to ask different questions of it, questions that would allow its statements to become intelligible as a whole.48 Thus, the individual would try to read it as a study in international legal theory. Gadamer sees in examples of this nature something that is fundamental to all understanding and interpretation. Martin Heidegger’s reworking of an Aristotelian 47 48

Ibid., 356 et seq.

The reader may know from experience that even basic word processors like Microsoft Word seem to display this charitable attitude. When a certain number of consecutive words appear to have been misspelled, it will automatically search for a language in which the text emerges as grammatically correct.

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idea, suggests that interpretation always takes the form of a hermeneutic circle which involves a continuous movement, between the presuppositions and expectations, with which one approaches parts of the interpreted text or practice and one’s overall conception of its meaning as a whole.49 This idea must be intuitively appealing to an international lawyer. Attempts to understand and account for, customary international practices display very clearly the cyclical form that Gadamer speaks of. Whenever statements are made to the effect that there is a ‘trend’ in State practice; that customary law has ‘developed’ in one or another way; that there has been a ‘change’ in the practice; that the practice has been ‘consistent’ or ‘inconsistent’, among others these are terms of the hermeneutic circle. Therefore, particular international events are approached in the expectation that they form a unity of meaning, which can be called upon in order to invest each individual event with its significance. But this hermeneutic journey is not straightforward. As sometimes the evidence defeats the expectations about the meaning of the practice. For example, one might begin with the assumption that a certain ICJ judgment is a correct statement of customary international law but then find that this assumption shows the majority of States to act in ‘violation’ of the law. Then the realisation that something has gone wrong causes a modification of prior assumptions in the light of the new data. Gadamer goes on to claim that the cyclical structure of understanding has a number of formal implications about the role of the interpreter and their presuppositions in the process of interpretation. Gadamer calls the first of those the “fore-conception of completeness and truth” and explains it as follows: [O]nly what really constitutes a unity of meaning is intelligible. So when we read a text we always assume its completeness, and only when this assumption proves mistaken – i.e., the text is not intelligible – do we begin to suspect the text and try to discover how it can be remedied. […] Just as the recipient of a letter understands the news that it contains and first sees things with the eyes of the person who wrote the letter – i.e., considers what he writes as true, and is not trying to understand the writer’s peculiar opinions as such – so also do we understand traditionary texts on the basis of expectations of meaning drawn from our prior relation to the subject matter. And just as we believe the news reported by a correspondent because he was present or is better informed, so too are we fundamentally open to the possibility that the writer of a transmitted text is better informed than we are, with our prior opinion. […] The prejudice of completeness, then, implies not only this formal element – that a text should completely express its meaning – but also that what it says 49

Gadamer (note 43), 291.

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should be the complete truth. […] Hence the most basic of all hermeneutic preconditions remains one’s own fore-understanding, which comes from being concerned with the same subject. This is what determines what can be realized as unified meaning and determines how the fore-conception of completeness is applied.50

The ‘fore-conception of completeness and truth’ forms the heart of the objection towards the neutral ideal of interpretation. It requires the interpreter to a point, purpose or value that unifies that text or practice and, as far as possible, shows it to be the complete truth about the matter. This constitutes the interpreter’s own contribution to the interpretation, insofar as it reflects hermeneutic conditions that must be in place in advance of any successful engagement with the interpreted text or practice. Section 2 gave some examples of this aspect of interpretation, but it might be helpful to consider a fresh one as well. In its Namibia Advisory Opinion, the ICJ was called on to interpret Security Council Resolution 276 (1970) to determine the precise extent of the legal duty of UN Member States with regards to States’ refusal to enter into treaty relations with South Africa. This was to discover whether the presence of South Africa in Namibian territory was legal. One particular question, on which the Resolution was silent, was whether States ought to perform their human rights obligations towards the Namibian population, even though they had formally incurred those obligations vis-à-vis South Africa. If the Court had followed an intentionalist or a conventionalist approach to the interpretation of Resolution 276, it would have had to search either for the intentions of the Security Council or for a consensus amongst international lawyers as to the interpretation of the Resolution. The Court did nothing of the kind. Instead, it approached the issue by enquiring into the point and purpose of Resolution 276 as a whole and then taking this as a guide for its response to the particular question before it. The Court held: [M]ember States are under obligation to abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia. With respect to existing bilateral treaties, member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the nonperformance of which may adversely affect the people of Namibia […]. In general, the non-

50

Gadamer (note 43), 294 (emphasis added).

412 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation.51

Once again, note that it would be wrong to say that the Court preferred an evolutive or living instrument view of the Resolution over one based on the Council’s intentions. The appeal to what the Council intended could acquire sense only on the condition that the Court credited the Council with what the Court took to be the best justification of the Resolution, which is to assist and support the population of Namibia and not to harm it. Gadamer then draws attention to two further implications of the hermeneutic circle, both of which highlight the centrality of the interpreter’s own situation in all instances of successful interpretation. The first concerns the effect of temporal distance on interpretation. The idea behind this concept is very simple but crucial. The more distance the interpreter has from a certain thing or event, the better placed they are to see it ‘in its proper context’, to appreciate a richer web of meaningful relationships between that thing or event and its environment. Given that the meaning of each particular event must be understood by reference to the whole and vice-versa, this meaning will evolve as history develops and the tradition that lends individual events their meaning becomes more densely populated. Many of these relationships and meanings will have been hidden to the original author, simply because the author stood too close to the statements to have had an equally broad view of their connections and interactions with the rest of history. More importantly, the effect of temporal distance entails that far from obstructing access to the meaning of a text or practice, the passage of time actually produces meaning. Gadamer puts the matter as follows: Time is not primarily a gulf to be bridged because it separates; it is actually the supportive ground of the course of events in which the present is rooted. [T]he important thing is to recognize temporal distance as a productive condition enabling understanding. It is not a yawning abyss but is filled with the continuity of custom and tradition, in the light of which everything handed down presents itself to us.52

51

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, 55, paras. 122, 125. 52

Gadamer (note 43), 297. The influence of Heidegger’s thought, especially as regards the connection between time and the mode of existence (Dasein) that constitutes understanding, is very evident in this beautiful passage. See Martin Heidegger, Being and Time (1927).

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The effect of temporal distance on the way one understands events, texts or practices, entails that all interpretation is in its nature become evolutionary. The play of historical development will always reveal new connections and relationships between individual events, from which new sources of meaning and significance will become apparent.53 In virtue of the hermeneutic circle, these new meanings will in turn affect the questions posed to a text or practice. It will sometimes confirm their usefulness and pertinence, or show them to be unhelpful or unduly limiting. In that sense, evolution in understanding is not so much a change in the answers one receives from what is interpreted, but the effect of history on the interplay of question and answer from which the interpretandum receives its meaning. As Gadamer puts it: Every age has to understand a transmitted text in its own way, for the text belongs to the whole tradition whose content interests the age and in which it seeks to understand itself. The real meaning of a text, as it speaks to the interpreter, does not depend on the contingencies of the author and his original audience. It certainly is not identical with them, for it is also co-determined also by the historical situation of the interpreter and hence by the totality of the objective course of history. […] Not just occasionally but always, the meaning of a text goes beyond its author. That is why understanding is not merely a reproductive but a productive activity as well. Perhaps it is not correct to refer to this productive element in understanding as ‘better understanding’. […] It is enough to say that we understand in a different way, if we understand at all.54

The other formal implication of the hermeneutic circle and the effect of history is that all understanding and interpretation is situational in character, as it always occurs in the application of a meaning to the particular situation in which the interpreter finds themselves.55 Again, the essential idea behind the concept of situationality is quite simple. The basic thought behind the ideal of neutral interpretation was that application consists simply in the concretisation of a result that has been already 53 Cf. Charles Taylor, Understanding the Other: A Gadamerian View on Conceptual Schemes, in: Jeff Malpas/Ulrich von Arnswald/Jens Kertscher (eds.), Gadamer’s Century: Essays in Honor of HansGeorg Gadamer (2002), 279, 284; Richard Rorty, Philosophy and Social Hope (1999), 52–61. 54 55

Gadamer (note 43), 296 (emphasis in the original).

The idea of situationality has recently been put to use in international theory by Outi Korhonen, see Outi Korhonen, International Law Situated: An Analysis of the Lawyer’s Stance Towards Culture, History and Community (2000). It is not possible to do full justice in this work to Korhonen’s view of the fundamental interpretative situation and, more precisely, Korhonen’s insistence that there are meanings and thoughts that are incommunicable and thus that interpretation will always have the effect of ‘shutting them off’ from what is perceived as the truth (especially 275 et seq.). In Voyiakis (note 35), some reasons have been given for thinking that the idea of incommunicable thought is not coherent.

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reached by reflection alone: one first interprets, and then applies the interpretation to the text or practice in question. This thought is false because it assumes that it is possible to detach oneself from the stream of historical development that gives the interpreted text or practice its meaning. However, the hermeneutic circle and the effect of history concern and engulf the interpreter as much as they concern and engulf the interpretandum.56 Given that the interpreter can never extricate themselves completely from the development of history – or that the effect of history can never become entirely transparent to the interpreter, – the fundamental interpretative problem can never be to find out what a text or practice means in an ‘objectified’ or ‘a historical’ manner, but to find out how it speaks to the particular situation that has precipitated the interpreter’s interpretative effort. If this is correct, then application is not a subsequent or a merely occasional part of interpretation, which simply concretises a result fixed by reflection alone, but one of the formal conditions for its possibility. Hence, in order to understand and interpret any text one must know how to apply its meaning to the historical situation.57

B. Interpretative Prejudice and Truth

If the understanding of what treaties say and what States do differ according to the perspective from which they are examined, or according to the historical circumstances in which interpretation takes place, does it not follow that all enquiry into international practice is necessarily partial or lacking in objectivity? This objection can be distinguished in two ways. The first, objection can be understood as claiming that as long as an interpreter brings forth personal presuppositions to bear on the interpretation of a text or practice, that interpretation cannot have a truth-value. This sceptical line of thought has been opposed elsewhere;58 suffice to say that the sceptical reading is confused, since the truth-aptness of an interpretation is already guaranteed as long as that interpretation is intelligible.

56 Gadamer (note 43), 301. Cf. Robert Sokolowski, Gadamer’s Theory of Hermeneutics, in: Lewis E. Hahn (ed.), The Philosophy of Hans-Georg Gadamer (1997), 223, 226–227. 57

Gadamer (note 43), 321.

58

Voyiakis (note 35).

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The second objection is that interpretation that relies on presuppositions may not necessarily deny all access to the true meaning of the interpreted text or practice, but it seems to make its attainment much more difficult. The cause of this difficulty is twofold. On the one hand, it often happens that the presuppositions with which an interpreter approaches a text may in fact reflect nothing more than entrenched prejudices, stale opinions and assumptions that could hardly stand up to critical scrutiny. Indeed, the idea that interpretation requires engagement with tradition seems to carry an inherent risk of allowing the perpetuation of false beliefs and illegitimate prejudices.59 On the other hand, the cyclical nature of interpretation entails that it is extremely difficult to tell where good and honest interpretation ends and illegitimate prejudice begins. Illegitimate prejudices may lie hidden and unnoticed for long, indeed long enough to debilitate interpreters’ critical powers and to put the truth of the interpreted text or practice out of reach. Critical theorists like Hilary Charlesworth have pressed strongly the charge of hidden or silent prejudice against traditional international legal thinking. Critical theorists have argued that “the silences of international law may be as important as its positive rules and rhetorical structures,”60 and that these silences are in the end “an integral part of the structure of the international legal order, a critical element of its stability.”61 Perhaps Gadamer’s greatest contribution to hermeneutic philosophy has been the response to this philosophical and political concern through the careful dissociation of the notion of prejudice from the negative significance which post-Enlightenment thought had placed upon it. Gadamer’s main insight is that recognising the central role of prejudice and presupposition in all interpretation and understanding does not amount to an abandonment of critical thought. Prejudices enable engagement in the interpretation of practices, but they neither fully determine that interpretation nor do they exhaust it. On the contrary, prejudices are always capable of being brought to the

59

This point has been pressed by Jürgen Habermas, see Jürgen Habermas, On the Logic of the Social Sciences (transl. by Shierry Weber Nicholsen/Jerry A. Stark, 1988). For Gadamer’s response see HansGeorg Gadamer, On the Scope and Function of Hermeneutical Reflection, in: David E. Linge (ed.), Philosophical Hermeneutics (transl. by David Linge, 1976), 18, 26–36. 60

Hilary Charlesworth, Feminist Methods in International Law, AJIL 93 (1999), 379, 381; Hilary Charlesworth/Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (2000), 18–19. For discussion of this view see Korhonen (note 55), 212–216. 61

Charlesworth (note 60).

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foreground of understanding and put before the tribunal of critical thought and debate. In that sense, prejudiced understanding becomes not a denunciation of critical interpretation but a condition for its possibility. This also is the heart of the living instrument idea. Gadamer begins by asking why modern (or post-Enlightenment) thought has come to attribute such a negative meaning to the notion of prejudice. Gadamer’s aim is to look behind the banishment of prejudices in modern thought in order to retrieve a more flexible and fundamental meaning of that notion. Gadamer writes: The history of ideas shows that not until the Enlightenment does the concept of prejudice acquire the negative connotation familiar today. Actually ‘prejudice’ means a judgment that is rendered before all the elements that determine a situation have been finally examined [this is perhaps clearer in the Latin version of praejudicium (pre-judgment)]. In legal terminology a ‘prejudice’ is a provisional legal verdict before the final verdict is reached. For someone involved in a legal dispute, this kind of judgment against him affects his chances adversely. […] But this negative sense is only derivative. The negative consequence depends precisely on the positive validity, the value of the provisional decision as a prejudgment, like that of any precedent. This ‘prejudice’ does not necessarily mean a false judgment, but part of the idea is that it can have either a positive or a negative value.62

The reason why the Enlightenment threw all its weight behind the negative aspect of prejudices is very familiar. The heart of that intellectual revolution, famously encapsulated in the rule of Cartesian doubt, lay in the fundamental assumption that nothing can be accepted as true as long as it can be subject to reasonable doubt. This credo led Enlightenment thinkers to the conclusion that judgments are true only to the extent that they can be ‘grounded’ by means of a rational and verifiable method, requiring that every step must be checked by the powers of logic and reason. By that standard, judgments that are not grounded in reasoned and verifiable method cannot be part of a true description of the world. The core concern behind the banishment of prejudices by the Enlightenment is precisely that, not having been verified by critical and methodical reason, these pre-judgments will pose an obstacle to the attainment of truth.63 Gadamer explains why this inference is false by looking into what post-Enlightenment thinkers considered the most dangerous source of prejudice (apart from carelessness), namely reliance on authority in the place of one’s own reason. Gadamer’s 62

Gadamer (note 43), 273.

63

Ibid., 279–280.

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main point is quite simple: Enlightenment thinkers may have been right in urging that reliance on authority (e.g. previous interpretations of customary law, judicial dicta etc.) in the stead of one’s own reason is a source of prejudice; however, they were not entitled to the inference that such reliance may not be a source of truth.64 In making this inference, Gadamer argues, the Enlightenment distorted the concept of authority because it presented it in diametrical opposition to the demands of an agent’s reason and freedom. According to Enlightenment thought, insofar as truth is only attainable through the exercise of one’s reason, reliance on authority can be nothing more than blind obedience.65 Yet, this view misunderstands the nature of relationships of authority: [A]uthority […] is ultimately based not on the subjection and abdication of reason but on an act of acknowledgement and knowledge – the knowledge, namely, that the other is superior to oneself in judgment and insight and that for this reason his judgment takes precedence – i.e., it has priority over one’s own. This is connected with the fact that authority cannot be bestowed but is earned, and must be earned if someone is to lay claim on it. It rests on acknowledgement and hence on an act of reason itself which, aware of its own limitations, trusts to the better insight of others. […] Thus, acknowledging authority is always connected with the idea that what authority says is not irrational and arbitrary but can, in principle, be discovered to be true.66

The reliance on authority, is that openness to the point of view of the more informed interpreter, does not involve the abdication of reason and freedom. On the contrary, recognising that another person may be right or better informed is itself an exercise of freedom, consciously intended to profess personal limitations (in the way every student professes their limitations by turning to a teacher). This recognition entails nothing like total obedience or unquestioning acceptance of another’s views. Rather, it constitutes the background on the basis of which critical thought can begin to challenge particular inherited beliefs, prejudices and presuppositions.67 64

Ibid., 280–283.

65

Ibid., 280–281.

66

Ibid., 281 (emphasis added). Gadamer’s account of authority can be contrasted with that of Joseph Raz, see Joseph Raz, Authority, Morality and Law, in: id.(ed.), Ethics in the Public Domain: Essays in the Morality of Law and Politics (1994), 210. Raz takes the view that authority replaces one’s own reasons and thus claims legitimacy irrespective of the content of its demands. For a critique of Raz’s view of authority as providing ‘content-independent’ reasons see P. Markwick, Law and Content-Independent Reasons, Oxford Journal of Legal Studies 20 (2000), 579. 67

Gadamer (note 43), 34–36.

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In the light of this thought, Gadamer famously appeals for the conception of proper understanding and interpretation not as a process of gaining complete mastery over a text or practice by means of one’s self-sufficient and methodical reason, but as a fusion of the interpreter’s and the text’s respective horizons. As far as all interpretation begins from the recognition that the author of a text or practice may be better informed, the interpreter’s desire to engage with the author is a desire to see what is interpreted from a broader perspective or horizon, which will incorporate what is best in the particular viewpoints of both interpreter and author. Gadamer puts this thought as follows: [O]ne intends to understand the text itself. But this means that the interpreter’s own thoughts have gone into re-awakening the text’s meaning. In this the interpreter’s own horizon is decisive, yet not as a personal standpoint that he maintains or enforces, but more as an opinion and a possibility that one brings into play and puts at risk, and that helps one truly to make one’s own what the text says. I have described this as a ‘fusion of horizons’. We can see that this is the full realization of conversation, in which something is expressed that is not only mine or the author’s but common.68

Gadamer’s point is that prejudices and preconceptions are neither obstacles to correct understanding and interpretation, nor the final arbiters of its results. Instead, they are the keys that enable one to enter into a constructive conversation with the other perspective that is expressed in what is being interpreted, as well as the source of the first contribution to that ‘live’ conversation. Yet, once the conversation in which interpretation finds its home begins to develop, these prejudices are themselves ‘put at risk’ and exposed to the critical power of the better argument and the more informed perspective.

V. Conclusion Lawyers want to be faithful to the legal texts and practices that they interpret, and also want to treat those texts and practices as living instruments that are relevant to the present and its concerns. Two dominant schools of thought in international law, positivism and critical legal theory, say that interpreters cannot hold onto those desiderata simultaneously. Drawing on the hermeneutic philosophy of Hans-Georg Gadamer, it has been shown that interpreters can do so and have done so. Showing 68

Ibid., 362.

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fidelity to the interpreted legal texts and practices and treating them as living instruments are not unsophisticated practical ideas that turn out to conflict with each other when put under the philosophical lens. They are co-essential and mutually dependent dimensions of all competent international legal interpretation. Whereas positivists and critical theorists say that it is impossible to employ both equally. The Gadamerian account, this paper has developed, says that it is unavoidable. The reason is that positivism and critical theory base their shared conclusion on a deficient understanding of the nature of the problem they address. Fidelity does not require retrieval of authorial intention, but a critical fusion of horizons between author and interpreter. Prejudice is not an obstacle to objective interpretation, but its enabling condition. What follows from this for the practice of international legal interpretation? Essentially, two points may be made here. First, the account of interpretation offered shows that taking an international legal text or practice to be a living instrument does not involve switching into some extraordinary or special interpretive mode. Interpretation cannot help but treat its object as a living interlocutor, nor does the engagement of an interpreter with the European Convention on Human Rights or the Charter of the United Nations differ in character from the engagement of an interpreter with garden-variety commercial treaties. The very idea that living instrument interpretation is either an ‘extraordinary’ or especially ‘progressive’ type of interpretation, is a mirage created by some deep-seated but mistaken ideas of positivist origin. In all instances of interpretation, living up to the ideal of letting the interpreted text or practice speak for itself requires not the self-effacement of the interpreter but an active and critical engagement with the tradition in which the interpreted text or practice finds its proper home. Such engagement is a matter of treating what is being interpreted as a unity of meaning, by hypothesising a value that gives sense to the interpreted whole and its parts. This process has the structure of a hermeneutic circle, that is an evolutive and situational exchange of question and answer between the interpreter and the text or practice. Second, the interpretative account developed in this work suggests that merely pointing out the contestability of an interpretative assumption does not suffice to cast doubt on the correctness of the resulting interpretation. For example, those who disagree with the conception of a certain right taken by the European Court of Human Rights, or understand the object and purpose of the WTO Agreement to be different

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from that espoused by the WTO Appellate Body, cannot rest their case on the fact that the interpretations adopted by the institutions in question are controversial or contestable. Inasmuch as such critics aspire to take part in the interpretative process, they are obligated to bring their own normative assumptions to the fore and test them against the object of interpretation. To put it differently, contestability is not a charge against an interpretation, but a condition of its being an interpretation. In that regard, Gadamer has shown that in order to hear the ‘true voice’ of any text or practice, interpreters always have to assume that the interpreted text or practice expresses a truth or better insight of the information sought. This has a core that interpreters consider important and must be brought to light. Understanding and interpretation are always ‘prejudiced’ in this way because they are only possible on the condition that the interpreter has willingly immersed themselves to the conversation between different perspectives from which the interpreted text or practice acquires its meaning and significance. Crucially, it is the same context of conversation that opens up the possibility of better understanding, inasmuch as it allows particular prejudices to be brought to the foreground and to be scrutinised for their ability to show the interpreted texts or practices at their most meaningful.69

69 To put it differently, the exercise of critical power over any single prejudice is only feasible from within one’s own contingent (and to that extent prejudiced) situation.

Conservation and Management of Shared Fish Stocks and the Applicable International Trade Regime BJØRN KUNOY(

ABSTRACT: Where there is no agreement on joint conservation and management of shared fish stocks, States may consider implementing trade related measures to improve the conservation of fish stocks which migrate through its and other States’ jurisdictional zones. Yet, the legality of trade measures adopted in the name of conserving natural resources has to be assessed from the perspective of international trade law. In this respect, compatibility with the Agreement establishing the World Trade Organization (WTO)1 is of particular importance, as has been demonstrated by the relevant WTO cases. This paper seeks to determine to what extent States, as a reaction to the discontentment of conservation and management measures of third States, may adopt measures with punitive characteristics directed towards States through whose jurisdiction a shared fish stock migrates. KEYWORDS: shared fish stock, obligation of conduct, prohibition of quantitative restrictions, exceptions to GATT prohibitions

I. Introduction Pursuant to the principle of fundamental importance in international law, coastal States have sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources within their national maritime jurisdiction as established in Article 56 (1) of the United Nations Convention on the Law of the Sea (UNCLOS).2 Hence, once the boundaries relating to the fishery zone or the economic exclusive zone (EEZ) are established, the management of the living resources within ( Visiting Fellow, Lauterpacht Centre for International Law at the University of Cambridge, currently on leave from Foreign Affairs Department of Prime Minister’s Office, Faroes. I want to thank the anonymous commentators for their very helpful comments. 1 Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, UNTS 1867, 3 (WTO Agreement). 2 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 396.

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such limits should be straightforward, i.e. it becomes an exclusive and discretionary matter of the relevant coastal State.3 The framework is not always that simple, as is the case of shared fish stocks (single biological units that migrate between different jurisdictions), or where such shared fish stocks also straddle the jurisdictions of the relevant coastal States and the high seas.4 The management of such shared fish stocks by one of the relevant coastal States could hardly be done unilaterally and individually without impacting the long-term conservation of such stocks5 of other relevant coastal States, the reason for which the Third United Nations Conference on the Law of the Sea agreed to the language contained in Article 63 (1)–(2) UNCLOS. Past experiences have demonstrated that it can often be cumbersome to reach an agreement on conservation and management measures related to such fish stocks, as the individual allocation demands of relevant coastal States cumulatively go far beyond allowable catch which can ensure maximum sustainable yield.6 Thus, the failure to agree on joint conservation and management measures may lead to the mismanagement of the stock as aggregated autonomous, i.e. non-coordinated, national quotas are likely to produce 3 Ian Brownlie has noted that the “concept of permanent sovereignty over natural resources has its historical origins in the principle of self-determination,” see Ian Brownlie, Legal Status of Natural Resources, Recueil des Cours 162 (1971), 255, 255. 4 While Art. 63 (1)–(2) can be held to have bifurcated concepts of (i) shared fish stocks that straddle only between the waters under the jurisdiction of coastal States, and (ii) straddling fish stocks that occur in the water of one coastal State and the adjacent high seas, both concepts are inextricably linked as it is common that shared fish stocks that occur in the waters under the jurisdiction of several States also occur on the adjacent high seas. Further, the structure and logic in both provisions is almost identical. Hence, for the purposes of this paper, utilisation of the term ‘shared fish stocks’ includes either shared fish stocks that migrate between several jurisdictions or straddling fish stocks that straddle between the jurisdiction of one or several coastal States and the adjacent area of the high seas, except where otherwise provided. 5 It should also be noted that the management and conservation of stocks which today are within the ambit of Part V UNCLOS were, prior to the establishment of the 200 nautical miles fishery zone subject to high seas conservation and management measures of regional fisheries management organisations. See e.g. Annex E to the Report of the Eleventh Meeting of Contracting Parties to the North-East Atlantic Fisheries Commission, 15 August 1973, Recommendations 8 for North Sea Herring, and 11 for Mackerel, respectively (document on file with the author). 6 Recent examples comprise the management of the Jack-Mackerel stock in the maritime areas within national jurisdiction of Chile, Peru and Ecuador. While the participants to the International Consultations establishing the South Pacific Regional Fisheries Management Organization have adopted interim conservation measures, as latest revised on 4 February 2012, that apply to the Convention Area, that is the high seas, there is disagreement among the relevant coastal States as to the whether the measures adopted for the high seas should be extended to the maritime areas within national jurisdiction. Further, there is no coordination for the conservation measures of the stock in question for the catch in the coastal States’ respective national zones. See Preparatory Conference for the Commission of the South Pacific Regional Fisheries Management Organisation, Report of the Third Session, 3 February 2012, available at: http://www.southpacificrfmo.org/assets/PrepCon-3/Meeting-Report/ PrepCon-3-Report-of-PrepCon3-Final-clean.pdf (accessed on 1 March 2012).

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a fishing pressure which does not ensure a maximum sustainable yield, and will imply inequity in the allocation of benefits from it.7 UNCLOS has introduced a legal regime providing that where the same stock(s) of associated species occur within the EEZ of “two or more coastal States, these States shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks.”8 Hence, relevant coastal States are obligated by the treaty to seek to establish coordinated applicable conservation and management measures to deal with stocks that migrate between different jurisdictions. That obligation also includes States that permit fishing vessels to fly their flag, and straddling fish stocks in the adjacent areas of the high seas. The establishment of a total allowable catch, and allocation between States in whose waters a shared fish stock migrates, is a difficult task, susceptible to lengthy and difficult negotiations. In the absence of a joint conservation and management agreement, the States involved in the fisheries could be inclined to adopt unilateral trade retaliation measures9 in order to coerce the other participating State(s) to accede to the demands of the economically stronger State.10 Failing to agree on a joint conservation and management agreement, States who are members of the World Trade Organization (WTO) are not vested with unlimited leverage with regard to the adoption of unilateral measures designed to sanction States that are involved in the management of the stocks in question.11 Articles V and XI of the General Agreement on Trade and Tariffs (GATT)12 provide the general principle 7

Robin Churchill/Vaughan Lowe, The law of the sea (3rd ed. 1999), 294–295. Art. 63 (1) UNCLOS. 9 Moritaka Hayashi, The Management of Transboundary Fish Stocks under the LOS Convention, International Journal of Marine and Coastal Law 8 (1993), 245, 248. 10 The European Union Commission has most recently adopted a Proposal for Regulation which, if adopted by the European Parliament and the European Union Council, confers powers to the Commission to unilaterally adopt trade sanctions towards third States that are engaged in the fisheries of a shared fish stock to which the EU is a relevant stakeholder and for which there is no conservation and management agreement. COM(2011)888 final, 12 December 2011, 2011/0434 (COD) (Proposal for Regulation). 11 For further details see WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, WT/DS193, all documents available via: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds193_e.htm (accessed on 21 March 2012) and ITLOS, Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Union), documents available at: http://www.itlos.org/index.php?id=99&L=0 (accessed on 29 February 2012). 12 The GATT is Annex 1A to the Agreement Establishing the World Trade Organization and as such encompassed in the WTO regime. General Agreement on Tariffs and Trade 1994 (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 190. 8

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of freedom of transit and the general elimination of quantitative restrictions ! both provisions are of fundamental importance in the WTO regime. In the Chile ! Swordfish dispute, the EU contested the consistency with the GATT of the Chilean prohibition on unloading of swordfish in Chilean ports, and based its request for consultations on Articles V and XI GATT.13 These two provisions prohibit transit restrictions and quantitative restrictions which could deprive coastal States of the possibility to close the ports vis-à-vis fishing vessels flying the flag of a third State through whose waters the relevant shared fish stock migrates, and where those States involved have no joint conservation and management agreement in relation to that particular shared stock. However, the WTO legal framework sets forward not only general prohibitions on measures that have reverse effect on international trade, it provides also for exceptions to such general prohibitions, one of which relates to the adoption of measures which aim to conserve exhaustible natural resources. This paper seeks to establish the limits of States’ rights to adopt trade measures, whose purpose or effect is to coerce other States involved in the fisheries of a shared fish stock to endorse an allocation of the shared fish, as suggested by the State imposing the sanctions. Prior to determining the ambit of possible trade measures, the paper looks first at the primary obligation imposed on relevant coastal States with regard to the conservation and management of shared stocks.

II. Sovereign and Exclusive Rights A maritime boundary constitutes of “the exact line or lines where the extension in space”14 of a coastal State terminates. That line confines the jurisdiction of a coastal State, although the jurisdictional powers within those limits may vary subject to the applicable regime. Given that the living resources of the sea are not confined by their habitat to the man-made boundaries, there are situations where joint conservation and management measures are required, as provided in Article 63 UNCLOS and, where

13 WTO, Chile – Measures Affecting the Transit and Importation of the Swordfish, Request for Consultations of 26 April 2000, DS/193/1, G/L/367. 14 ICJ, Aegean Sea Continental Shelf (Greece v. Turkey), Judgment of 19 December 1978, ICJ Reports 1978, 38, para. 85 (emphasis added).

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relevant, in the United Nations Agreement on Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement).15 A. The Ambit of Sovereign and Exclusive Rights

Coastal States have, pursuant to Article 56 (1) UNCLOS, sovereign rights for the purpose of, inter alia, exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed within the maritime areas of their jurisdiction. Such jurisdiction may extend to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. Therefore, in the absence of a coastal State’s consent except otherwise provided, it is only the coastal State which has competence to determine and establish conservation and management measures with regard to fishery resources located within the areas of its maritime jurisdiction. The above is reflected in Article 61 (1) UNCLOS which provides that “[t]he coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.” This implies that another State has no say, except where a permissive rule to the contrary exists with regard to the applicable conservation and management measures of the natural resources that fall within the jurisdiction of the coastal State. However, where exploitation of a shared fish stock takes place within the jurisdiction of one State, “the interests of the other [S]tate(s) are affected and cooperation is required.”16 As elaborated on below, UNCLOS has embraced the idea that relevant coastal States shall cooperate to ensure that the exploitation of shared fish stocks is consistent with the provisions of Article 61 (2)–(3) UNCLOS. To determine the ambit of coastal States rights to exploit the natural resources located in their maritime jurisdiction, comparisons with property law within private law will be examined. 1. Property Rights Property rights are a social institution that governs the legal relationship between people in respect of things.17 The notion of property rights can, for the present 15 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, UNTS 2167, 3 (Fish Stocks Agreement). 16 Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989), 81. 17 See Bruce Ackerman, Private Property and the Constitution (1977), 26.

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purpose, be characterised as the idea of excludability, the well-founded right of a rights holder to, if necessary, exclude others from the res.18 This gives State A, whose maritime boundaries are established, the right to exclude the opposability19 of other States’ fishery licenses, by effective enforcement measures, from exploiting natural resources within its jurisdiction. To the extent that the maritime boundary between coastal State A and B is established and effective, the spatial extent of State title is predetermined. The intangible property rights that State A and B may, in the forms of quotas or otherwise, confer to natural or legal persons to undertake fisheries in areas within its maritime jurisdiction become exclusively effective because State A and State B are, respectively, guarantors of a valid title. This implies that the title to confer property rights, for instance, through contractual licences to undertake fisheries is spatially determined, in the absence of an agreement to the contrary. Further, as a general principle of law, property rights are determined by the lex situs,20 unless an exception is made to that principle. Article 56 (1) UNCLOS is influenced by this general principle of law. Although the sovereign rights in Article 56 (1) do not comprise the natural resources themselves but rather a right to the exploitation of such shared fish stock, no other State may have a bearing on that right. The ‘due regard’ provision within Article 56 (2) UNCLOS characterising how coastal States shall exercise their rights and perform their duties in the EEZ, in relation to the rights and duties of other States, can only be construed to mean that the ambit of the coastal State’s sovereign powers cannot be impaired by the very exercise of its sovereign right. Notwithstanding the above, States are, as enshrined in Articles 192 and 193 UNCLOS, obligated to exercise their rights under Article 56 (1) UNCLOS in accordance with their duty to protect and preserve the marine environment. However, the general obligation 18

See Anthony M. Honoré, Ownership, in: Anthony Gordon Guest (ed.), Oxford Essays in Jurisprudence (1961), 92, 107, cited by Richard Barnes, Entitlement to Marine Living Resources in Areas Beyond National Jurisdiction, in: Erik J. Molenaar/Alex G. Oude Elferink (eds.), The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (2010), 83, 95. 19 On opposability, see Joseph Gabriel Starke, The Concept of Opposability in International Law, Australian Yearbook of International Law 4 (1968), 1, 1–4. 20 That statement should not be construed so as to mean that municipal law will necessarily be the applicable law in the determination of property rights, or the legality of expropriation of such rights with respect to rem belonging to a non-national of that State. For a general introduction to this issue, see Louis B. Sohn/Richard R. Baxter, Responsibility of States for Injuries to the Economic Interests of Aliens, American Journal of International Law 55 (3) (1961), 545; Rosalyn Higgins, The Taking of Property by the State: Recent Developments in International Law, Recueil des Cours 176 (1981), 259, 267.

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to protect and preserve the marine environment in Article 192 UNCLOS does not affect the sovereign right of coastal States to exploit their own resources pursuant to their own environmental policies. This is recognised in the 1972 Stockholm Declaration, and reiterated in the Rio Declaration: “States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies.”21 Further, Article 193 UNCLOS also provides that States may exercise this right “pursuant to their own environmental policies.”22 Finally, reference should be made to the title of Article 193, “Sovereign rights of States to exploit their natural resources.” The use of the possessive pronoun ‘their’ is by no way coincidental, it reflects the sovereign entitlement of coastal States to, inter alia, adopt management measures with regard to all living resources within the waters of their jurisdictions according to their internal policies.

2. Interrelations between UNCLOS and the Fish Stocks Agreement The provision that only coastal States possess the ultimate powers to decide on conservation and management of fisheries resources within its jurisdiction in respect to shared or straddling fish stocks, also applies to discrete fish stocks that remain solely within the jurisdiction of one coastal State. This is not to say that States are not obliged to cooperate with regard to the conservation and management of shared fish stocks. Pursuant to Article 63 (1) UNCLOS,23 coastal States through whose waters a shared fish stock migrates are required to cooperate in order to conserve and manage such fish stocks. In this regard, the Fish Stocks Agreement implements the regime applicable to straddling stocks by seeking to establish a common regime for the conservation and management of fish stocks that straddle national jurisdictions and 21

Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, Chapter I of the Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev. 1 (1973), 3 (emphasis added). 22 See further Myron H. Nordquist/Alexander Yankov/Neal R. Grandy/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea: A Commentary, vol. IV (1990), 49. 23 Art. 63 (1) UNCLOS reads as follows: “Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part”.

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the adjacent area of the high seas. According to its Article 7 (2), States parties to the Fish Stocks Agreement have a treaty obligation “to cooperate for the purpose of achieving compatible measures” in relation to straddling fish stocks. The allocation criteria in Article 11 Fish Stocks Agreement apply solely to fisheries on the high seas, given that the ratione loci of the Fish Stocks Agreement is limited to areas beyond national jurisdiction. The exceptions are its Articles 6 and 7, which apply to areas within national jurisdiction.24 However, the latter provisions do not transform the obligation regarding conduct in Article 63 (2) UNCLOS to an obligation of result in the management of straddling fish stocks.25 By the same token, the Fish Stocks Agreement is “[w]ithout prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing the living resources within areas under national jurisdiction as provided for in the Convention.”26 It is thus submitted that it is unsustainable to confer another meaning to the Fish Stocks Agreement, other than nothing therein prejudices coastal States to exercise their powers to determine the total allowable catch in areas within their jurisdiction according to their own fisheries policies. The above conclusion is corroborated by the fact that despite a duty to adopt conservation and management measures to ensure that “the maintenance of the living resources in the [EEZ] is not endangered by overexploitation,”27 coastal States are vested with “discretionary powers for determining the allowable catch”28 within areas of maritime jurisdiction. In conclusion, neither UNCLOS nor the Fish Stocks Agreement set forward positive obligations in which the latitude of coastal States to autonomously determine, in the absence of an agreement, the separate total allowable catches of shared or

24

Art. 3 (1) Fish Stocks Agreement reads in its relevant parts as follows: “Unless otherwise provided, this Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction, except that Articles 6 and 7 apply also to the conservation and management of such stocks within areas under national jurisdiction”. 25 As is demonstrated by the fact that Art. 7 (1)(a) Fish Stocks Agreement duplicates the ‘shall seek’ provision in Art. 63 (2) UNCLOS in conjunction with the fact that Art. 7 (2)(a) provides that in determining compatible conservation and management measures, States “shall take into account the conservation and management measures adopted and applied in accordance with article 61 of [UNCLOS] in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures”. 26 Art. 7 (1) Fish Stocks Agreement (emphasis added). 27 Art. 61 (2) UNCLOS. 28 Art. 297 (3)(a) UNCLOS (emphasis added).

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straddling fish stocks, which derogate the lex situs principle.29 The latter principle, as applied to the current context being understood as the sovereign powers of States, in conformity with UNCLOS and the Fish Stocks Agreement, in the absence of joint management and conservation measures, to autonomously determine the allowable catch of the relevant stock within its maritime areas of national jurisdiction is intact. In this regard Churchill and Lowe have observed that “[i]f no agreement is reached, each State will manage that part of the shared stock occurring in its EEZ in accordance with the general rights and duties relating to fisheries management by a coastal State in its EEZ.”30 However, it does not necessarily mean that the emergence of separate and autonomous quotas by the respective coastal States, through whose waters the fish stock migrates, could not be the consequence of one of the relevant States’ noncompliance with the obligation of conduct, inherent in Article 63 (1)–(2) UNCLOS.

B. An Obligation of Conduct

It is well established in customary treaty interpretation rules, as reflected in the Vienna Convention on the Law of the Treaties (VCLT),31 that the “ordinary meaning [should] be given to the terms of the treaty in their context and in the light of its object and purpose.”32 According to well established principles of legal hermeneutics, the preliminary step in treaty interpretation is that “the text must be presumed to be the authentic expression of the intention of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text.”33 Where 29

The law of position. The law of the jurisdiction in which the property that is the subject of litigation is located, Aaron X. Fellmeth/Maurice Horwitz, Guide to Latin in International Law (2009), 176. 30 Churchill/Lowe (note 7), 294. 31 It is widely recognised that Arts. 31 and 32 Vienna Convention on the Law of Treaties, 13 May 1969, UNTS 1155, 331 (VCLT) reflect customary international law, see ICJ, Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment of 3 February 1994, ICJ Reports 1994, 6, para. 41. The above is also confirmed in the EC-Chicken Classification ruling of the World Trade Organization Appellate Body: “the customary rules of interpretation [are] codified in Articles 31 and 32 of the Vienna Convention,” see WTO, European Communities – Customs Classification of Frozen Boneless Chicken Cuts, Report of the Appellate Body of 12 September 2005, WT/DS269/AB/R, para. 147. 32 Art. 31 (1) VCLT. 33 Draft Articles on the Law of Treaties with Commentaries, Yearbook of the International Law Commission (1966), vol. II, 187, 220. See generally Emmanuel Voyiakis, International Law, Interpretative Fidelity and the Hermeneutics of Hans-Georg Gadamer, German Yearbook of International Law (GYIL) 54 (2011), 385.

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the logic inherent in the treaty “can be discovered by reference to the terms of the treaty itself, it is impermissible to depart from those terms. In so far it cannot, it is permissible.”34 By the same line of thinking it is reasonable to assume, except if the contrary is established, that the ordinary meaning of a term is likely to represent the intentions of the parties. Thus, interpretation of that term involves the duty of giving effect to the expressed intention of the parties, that is, their intention as expressed in the words used by them in light of the surrounding circumstances.35

1. The Scope of the Obligation Given the terms of Articles 56 (1) and 63 (1)–(2) UNCLOS, and the overarching principle in Article 4 Fish Stocks Agreement,36 establishing the sovereign ambit of rights with which coastal States are vested in order to determine, inter alia, how to exploit living resources within their EEZ, it seems clear that the obligation to seek to establish joint conservation and management measures with regard to shared fish stocks is an obligation of conduct and not an obligation of result.37 Orrego Vicuña has characterised the obligation within Article 63 (1)–(2) as follows: “[t]here is no obligation to enter into such agreements as evidenced by the expression ‘shall seek’.”38 The same view has been voiced elsewhere: that “[a]ll [the coastal State] is required to do is to seek to agree with the fishing state or states on the relevant measures. Should this search fail, the coastal state would be free to exercise its sovereign rights under Articles 61 and 62.”39 Thus, the interpretation of the ‘shall seek’ provision in Article 63 (1)–(2) UNCLOS 34

Daniel Patrick O’Connell, International Law, vol. 1 (2nd ed. 1970), 252. Lord Arnold Duncan McNair, The Law of Treaties (1961), 365 (emphasis in original). 36 Art. 4 Fish Stocks Agreement provides: “Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention”. 37 See Rainer Lagoni, Principles applicable to living resources occurring both within and without the exclusive economic zone or in zones of overlapping claims, in: International Law Association, International Committee on the EEZ, Report of the Committee, Cairo Conference (1992), 5, para. 12; see also Hayashi (note 9), 249. 38 Fransisco Orrego Vicuña, The Exclusive Economic Zone – Regime and Legal Nature under International Law (1989), 61. 39 Kwame Mfodwo/Martin Tsamenyj/Sam Blay, The Exclusive Economic Zone: State Practice in the African Atlantic Region, Ocean Development & International Law 20 (1989), 445, 461; quoted in Peter G. G. Davies/Catherine Redgwell, The International Legal Regulation of Straddling Fish Stocks, British Yearbook of International Law 67 (1996), 236. 35

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cannot be done in ignorance to the famous conclusions of the Permanent Court of International Justice (PCIJ) in Railway Traffic between Lithuania and Poland, in which it held that “an obligation to negotiate does not imply an obligation to reach an agreement.”40 It should also be noted that at the eighth session of the United Nations Third Conference on the Law of the Sea, Argentina sought without success to replace the retained wording “shall seek to agree” in the then consolidated text of what is now Article 63 (1)–(2) UNCLOS, with ‘be obliged’41 to agree. However, the fact that the obligation incumbent upon States, pursuant to Article 63 (1), is not a positive obligation to reach an agreement, cannot be construed to mean that the States involved are not subject to an obligation to genuinely seek to determine joint conservation and management measures. In its now famous judgment the International Court of Justice (ICJ) held in the North Sea Cases that the obligation to seek to determine an agreement implies that the parties have an obligation to conduct themselves appropriately so that negotiations are meaningful: “which will not be the case when either of them insists upon its own position without contemplating any modification of it.”42 Further, recently the ICJ described the obligation to negotiate as requiring “at the very least – a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute.”43 The fact that Article 63 (1)–(2) UNCLOS is confined to obligations of conduct, and that coastal States are vested with sovereign rights to exploit the natural resources within their jurisdiction, does not alter the fact that States are, as expressed in Article 61 (2)–(3) UNCLOS, under an obligation to adopt conservation measures that ensure the maximum possible yield of the stocks within their respective jurisdictions.44 40

PCIJ, Railway Traffic between Lithuania-Poland, Advisory Opinion of 15 October 1931, Series A/B, No. 42, 16. 41 See Official Records of the Third United Nations Conference on the Law of the Sea, vol. XII, Report of the Chairman of the Second Committee, 24 August 1979, UN Doc. A/CONF.62L/42 (1979), 92, 93, para. 42. 42 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, para. 85. 43 Id., 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, para. 157, available at: http://www.icj-cij.org/docket/files/140/16398.pdf (accessed on 12 March 2012). 44 Pursuant to Art. 61 (2)–(3) UNCLOS a coastal State “shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation” and such “measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors”.

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As a matter of treaty interpretation, a hermetic interpretation of a particular treaty provision may not be complete and “if incomplete [the interpretation] be not only ineffectual but actually misleading as to the legal rules applicable to the matter under consideration.”45 Hence, it would be a selective, and thus incomplete, interpretation to argue on the basis of Articles 56 (1), 61 (1) and 63 (1)–(2) UNCLOS that States may, in the absence of an agreement on conservation and management of a shared fish stock, adopt arbitrary conservation and management measures with regard to the exploitation of such stocks within maritime areas of national jurisdiction. However, the obligations established in Article 61 (2)–(3) do not trump the coastal States’ exclusive and sovereign rights to determine and establish the allowable catches within areas of their maritime jurisdiction. Hence, there is no conflict of law between on the one hand Articles 56 (1), 61 (1) and 63 UNCLOS, and on the other hand Article 61 (2)–(3) UNCLOS. The obligation of conducting fisheries in accordance with the principle of sustainable development can be characterised as a meta-principle, acting upon – and not dictating – other legal rules and principles. As noted by Professor Lowe, the concept of sustainable development “is often exemplified and instantiated but rarely, if ever, defined […]. At best ‘sustainable development’ looks like a convenient umbrella term to label a group of congruent norms.”46 The above resonates also in the ICJ´s ruling in the GabčikovoNagymaros Case, in which the Court, after recalling that the “need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development,” added that “[i]t is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty.”47

2. Lessons from the Advisory Opinion of ITLOS? In its Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, ITLOS assimilated the obli-

45 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, 76, para. 10. 46 Vaughan Lowe, Sustainable Development and Unsustainable Arguments, in: Alan Boyle/David Freestone (eds.), International Law and Sustainable Development (1999), 21, 25–26. 47 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 78, paras. 140–141.

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gation of conduct to an obligation of due diligence.48 According to ITLOS, the “notions of ‘due diligence’ and obligations ‘of conduct’ are connected,”49 in which a breach of the obligation of due diligence, as qualified in Article 4 (4) Annex III UNCLOS50 was characterised as susceptible to engage international responsibility: “[n]ecessary measures are required and these must be adopted within the legal system of the sponsoring State.”51 ITLOS also stated that the “main purpose of that provision is to exempt sponsoring States that have taken certain measures from liability for damage. The description of the measures to be taken by that State may also be used to clarify its ‘due diligence’ obligation”52 which makes this provision a lex specialis in comparison to Article 153 (4) UNCLOS. This is because the former, according to ITLOS, “is more specific as it requires the sponsoring State to adopt ‘laws and regulations’ and to take ‘administrative measures’ which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.”53 If that finding were directly transposed to a reading of Article 63 (1) UNCLOS, the fact that the parties were only subject to an obligation of conduct, would not necessarily exempt the States from engaging international responsibility for breaches of other obligations than under Article 63 if it could be held that the exercise of the obligation to negotiate was not diligent. In other words the obligation of conduct would have shifted to an obligation of result implying, inter alia, a scrutiny of Article 61 UNCLOS. It should be noted that the legal basis for the above conclusion of ITLOS is Article 139 (1), in conjunction with Article 153 (4) and Article 4 (4) Annex III UNCLOS. 48

On ‘due diligence’ see Riccardo Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the International Responsibility of States, GYIL 35 (1992), 409, 409–451. 49 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion of 1 February 2011, para. 110, available at: www.itlos.org/ fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf (accessed on 20 February 2012). 50 Art. 4 (4) Annex III UNCLOS provides: “The sponsoring State or States shall, pursuant to Article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction”. 51 ITLOS, Activities in the Area (note 49), para. 119. 52 Ibid. 53 Ibid.

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Notwithstanding the inextricable link between the concepts of obligation of conduct and due diligence, the wording ‘shall seek to agree’ in Article 63 (1) UNCLOS differs significantly in comparison to the positive obligations provided in Article 139 (1); the importance of which, according to customary treaty interpretation rules, cannot be ignored. This difference would beg carefulness for drawing lessons from those findings to breaches of Article 63 UNCLOS.54 This appears also clear when highlighting the classical definition of the duty of diligence: “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”55 in which the central element is that such acts involve harm. The bona fide exercise of coastal States’ rights in Part V UNCLOS could by no stretch of imagination be equated to an act serving for the purpose of harming the rights of other States.

C. Illegal, Unreported and Unregulated Fisheries?

According to a plain reading of Article 63 (1)–(2) UNCLOS, in conjunction with Article 56 (1) and 61 (1), the undertaking of authorised fisheries of a shared or straddling stock in the absence of an agreement on conservation and management measures in waters within the national jurisdiction of the relevant States, cannot constitute a wrongful act of international law.

1. Authorised Fisheries Within National Jurisdiction Beyond the Scope of IUU It is trite to state that fisheries within the waters of national jurisdiction cannot be characterised as illegal or unregulated fisheries, and hence fall within the regime applicable to illegal, unreported and unregulated fisheries (IUU fisheries). Given the ambit of the obligation of Article 63 (1)–(2) UNCLOS, the above assertion applies regardless whether or not relevant States have adopted a joint conservation and 54 On the casuistic nature of findings of breaches of, inter alia, the obligation of due diligence, see James Crawford, The International Law Commission’s Articles on State Responsibility (2005), 81–82, 8, para. 3. 55 ICJ, Corfu Channel (United Kingdom v. Albania) Judgment of 9 April 1949, ICJ Reports 1949, 4, 22.

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management arrangement vis-à-vis a shared fish stock. This implies that the principles enshrined in the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fisheries (PSM Agreement),56 which sets forward a minimum standard applicable to contracting parties to eliminate IUU fisheries (or other international frameworks that are already in force with the adoption of such rules by relevant regional fisheries and management organisations),57 cannot be used as a pretext to block ports or refuse services to vessels that are engaged in such fisheries. The aforementioned argument should also be seen in light of the fact that the PSM Agreement applies the definition of IUU fisheries,58 which is used in the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPA).59 For reasons explained above it should be noted that the IPA defines ‘illegal fisheries’, in its paragraph 3.1.1, as “those fisheries that are conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations.”60 A contrario, provided that the vessels flying the flag of the relevant coastal State have been authorised by the latter to undertake fisheries in the maritime areas under its jurisdiction, such vessels are immune from any characterisation as IUU fisheries by other States.61 The above conclusion could be countered by making reference to paragraph 3.3.2 of the Interna56

Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 22 November 2009, available via: http://www.fao.org/Legal (accessed on 21 February 2012) (PSM Agreement). 57 See for instance the applicable IUU fisheries regime with regard to the Convention Area of the North East Atlantic Fisheries Commission (NEAFC), see http://www.neafc.org/illegalfishing. See also for the Northwest Atlantic Fisheries Organization (NAFO), http://www.nafo.int/about/frames/ about.html (both accessed on 21 February 2012). 58 Art. 1 (e) PSM Agreement reads as follows: “For the purposes of this Agreement: illegal, unreported and unregulated fishing refers to the activities set out in paragraph 3 of the International Plan of Action to Deter, Prevent and Eliminate Illegal, Unreported and Unregulated Fishing”. 59 The International Plan of Action was adopted by consensus at the 24th session of the Committee of Fisheries on 2 March 2001 and endorsed by the 120th Session of the FAO Council on 23 June 2001. FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001), available at: http://www.fao.org/docrep/003/y1224e/y1224e00.HTM (accessed on 21 February 2012). 60 Ibid., para. 3.1.1. 61 However, it is of interest to note that in the Proposal for Regulation, the EU Commission suggests that measures sought in that instrument, and adopted on the basis thereof “shall take into account measures already taken pursuant to Regulation EC No 1005/2008,” the latter establishing a Union mechanism to combat, deter and eliminate illegal, unreported and unregulated fisheries, Art. 5 (2) Proposal for Regulation (note 10).

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tional Plan of Action: one of the two clauses which define unregulated fisheries for the purpose of the instrument.62 Pursuant to that provision, ‘unregulated fisheries’ are fisheries conducted “in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.”63 It could be considered that fisheries of a shared stock in the absence of a joint management and conservation agreement could fall within the realm of the above provision. However, given the scope of obligation in Article 63 (1)–(2) UNCLOS, the lack of a management and conservation agreement with regard to a shared fish stock cannot constitute an autonomous violation of a primary rule of international law that relates to the exercise of rights within Articles 56 (1) and 61 (1) UNCLOS; which could engage the international responsibility of the relevant States with regard to those acts. As recognised in Article 2 of the ILC Articles on State Responsibility,64 for the international responsibility of a State to be engaged it is a prerequisite that the wrongful act of a State “constitutes a breach of an international obligation of that State.”65 To contend that the establishment of autonomous total allowable catches with regard to stocks that fall within the maritime areas of coastal States’ jurisdiction would be a breach of an international obligation susceptible to engage its international responsibility, would stand in contrast with that principle of fundamental importance in international law. That is to say, that the rights of the coastal States, inter alia, to the living resources within their EEZ are sovereign, and as the heading of Part V UNCLOS indicates, exclusive. Therefore, the establishment of conservation measures of such resources within maritime areas of national jurisdiction is a reserved domain of States.

2. Breach of Obligations of Conduct Given the above, it is clear that the circumstances that qualify the legality of the use of countermeasures within the meaning of Article 49, in conjunction with Article 22, 62 Pursuant to para. 4 International Plan of Action (note 59), it “is voluntary. It has been elaborated within the framework of the FAO Code of Conduct for Responsible Fisheries as envisaged by Article 2 (d).” 63 Para. 3.3.2 International Plan of Action (note 59). 64 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83 of 12 December 2001 (adopted on 28 January 2002). 65 Ibid., Art. 2 (b).

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of the ILC Articles on State Responsibility, in order to influence a coastal State’s establishment of a total allowable catch in areas within its jurisdiction are not present.66 Yet, the question is still open whether the acts inconsistent with the obligation of conduct within Article 63 could engage the international responsibility of that State for such a breach. In the Pulp Mills on the River Uruguay Case,67 Argentina argued that by its breaches of procedural obligations in the 1975 Statute, Uruguay had engaged its international responsibility to Argentina.68 According to Argentina, the procedural obligations were intrinsically linked to the substantive obligations laid down by the 1975 Statute and therefore a breach of the former entailed a breach of the latter.69 However, the ICJ did not embrace that understanding of the interrelations of the different obligations. The obligations of conduct and of result in the 1975 Statute are, according to the ICJ, linked but this “does not prevent the States parties from being required to answer for those obligations separately, according to their specific content, and to assume, if necessary, the responsibility resulting from the breach of them, according to the circumstances.”70 The reasoning is also echoed in the Application of the Interim Accord of 13 September 1995 Case.71 After having recalled that both parties to the dispute agree that the obligation under Article 11 (1) of the Interim Accord was an obligation of conduct,72 the ICJ concluded that Greece failed to comply with that obligation “by objecting to the Applicant’s admission to NATO at the Bucharest Summit.”73 The ICJ refused to uphold the second plea of the applicant who sought two measures of relief: (1) a declaration that the respondent had acted illegally, and (2) an order of the Court that the respondent henceforth 66 As the ICJ held in the Gabcikovo-Nagymaros Project Case, countermeasures might justify otherwise unlawful conduct “taken in response to a previous international wrongful act of another State and […] directed against that State,” see ICJ, Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 81, para. 83 (emphasis added). 67 Id., Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, available at: http://www.icj-cij.org/docket/files/135/15877.pdf (accessed on 21 March 2012). 68 See Art. 2 in the Application of Argentina of 4 May 2006, available at: http://www.icj-cij.org/ docket/files/135/10779.pdf (accessed on 21 March 2012). 69 ICJ, Pulp Mills (note 67), para. 68. 70 Ibid., para. 79. 71 Id., Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, para. 67, available at: www.icj-cir.org/docket/ files/142/16827.pdf (accessed on 21 January 2012). 72 Ibid., para. 67. 73 Ibid., para. 113.

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refrain from any action that violates the obligation in the above-mentioned provision in the Interim Accord. The Court referred to its finding in Navigational and Related Rights,74 in which it concluded that there can be no assumption of bad faith, and went on to conclude in the present case that the finding that “the Respondent has violated its obligation to the Applicant under Article 11, paragraph 1, of the Interim Accord, constitutes appropriate satisfaction.”75 A breach of the obligation of conduct in Article 63 (1)–(2) UNCLOS cannot be considered equivalent to a breach of Article 61 (1) UNCLOS. These are two different obligations and in light with the ICJ’s findings in Pulp Mills, a linkage between two different sets of obligations “does not prevent the States parties from being required to answer for those obligations separately, according to their specific content, and to assume, if necessary, the responsibility resulting from the breach of them, according to the circumstances.”76 Bad faith cannot be assumed, as the ICJ highlighted in its recent judgment in Application of the Interim Accord of 13 September 1995,77 and there would seemingly be a high threshold for concluding that the obligation of conduct within Article 63 UNCLOS would be breached.78 However, assuming that a forum would have jurisdiction to adjudge whether a coastal State had breached the obligation of conduct in Article 63, the finding of such a breach could imply a declaration that the State in question would have acted in breach of Article 63 UNCLOS.

74 ICJ, Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, ICJ Reports 2009, 267, para. 150. 75 Id., Application of the Interim Accord of 13 September 1995 (note 71), para. 169. 76 Id., Pulp Mills (note 67), para. 79. 77 Id., Application of the Interim Accord of 13 September 1995 (note 71), para. 169. 78 In its decision in Tacna Arica, the tribunal held that “[t]here must be found an intent to frustrate the carrying out of the provisions” of the relevant treaty provision in order to prove bad faith and “that is, not simply the refusal of a particular agreement proposed thereunder, because of its terms […]. While there should be no hesitation in finding such intent, or bad faith, if established, and in holding the Party guilty thereof to the consequences of its action, it is plain that such a purpose should not be lightly imputed. Undoubtedly, the required proof may be supplied by circumstantial evidence, but the onus probandi of such a charge should not be lighter where the honor of a Nation is involved than in a case where the reputation of a private individual is,” Tacna Arica Question (Chile, Peru), Arbitral Award of 4 March 1925, Reports of International Arbitral Awards II, 921, 930.

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D. Conclusion

Sovereign rights are nothing other than rights which are within the discretion and full powers of the relevant stakeholder, in casu coastal States, without seeking to determine in a definitive manner, the normative characteristics of those provisions. It suffices, for the present purposes, to observe that economic pressure is by definition unfriendly, but also, to point out that it would be pedantic to argue that the use of economic pressure is per se prohibited by the UN Charter.79 Nevertheless, its legality would be subject to its relation to other legal rules in accordance with Article 31 (3)(c) VCLT. By the same line of thinking, it should be stressed that the provisions on countermeasures in the ILC Articles on State Responsibility are residual, within the meaning of Article 5580 therein, and are therefore, as appropriate, superseded by other international instruments, one of which is the WTO.

III. The International Trade Regime The failure to reach an agreement on the conservation and management of a shared or straddling fish stock may give rise to despair and mutual concern among the relevant coastal States because joint management of such a stock is a necessary condition precedent for the long term sustainable exploitation of such a resource. The States involved, or some among them, could be inclined to adopt measures which would have a reverse effect on their respective trade flows, hence seeking to coerce the other relevant coastal State(s) to adapt its fisheries policies accordingly. However, States that are members of the WTO have no carte blanche in that regard.

A. General Prohibitions of Restrictive Measures

The purpose of GATT is to dismantle measures which are obstacles for international trade of goods. These are not limited to duty taxes but also to non-tariff mea79

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter). Art. 55 ILC Articles on State Responsibility provides: “These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law”. 80

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sures one of which relates to obstacles for transit of goods, such as closure of ports and more generally the prohibition of quantitative restrictions.81 Pursuant to Article V:2 GATT, there “shall be freedom of transit through the territory of each contracting party […]. No distinction shall be made which is based on the flag of vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport.” The above-mentioned provision has been subject to sparse consideration by Panels, in the sole Case of Colombia – Indicative Prices and Restrictions on Ports of Entry.82 The Panel concluded that Article V:2 “requires extending unrestricted access via the most convenient routes for the passage of goods in international transit.”83 It added that pursuant to Article V:2 GATT, “Members shall not make distinctions between goods which are ‘traffic in transit’ based on the flag of vessels […] or on any circumstances relating to the ownership of goods, of vessels or of other means of transport.”84 Those conclusions were supplemented with a finding that Article V:2 GATT “extends MFN [most-favoured-nation] obligations to goods based on the circumstances of their transit, and prohibits Members from making distinctions in the treatment of goods, based on their origin or trajectory prior to arriving in their territory, based on their ownership, or based on the transport or vessel of the goods.”85 Hence, it would appear that a closure of ports for vessels flying the flag of a country with whom there is a disagreement as to the management and conservation of a shared fish stock, through whose maritime areas of jurisdiction the stock migrates, would stand prima facie in contradiction to Article V GATT.86 To the extent a prohibition of import, by means of closure of ports towards certain vessels, is adopted and enforced, it is not only a prima facie violation of Article V GATT 81

According to the preamble of GATT, its purpose is the “substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis”. 82 WTO, Colombia – Indicative Prices and Restrictions on Ports of Entry, Report of the Panel of 27 April 2009, WT/DS366/R. 83 Ibid., para. 7.401 (emphasis in original). 84 Ibid., para. 7.402. 85 Ibid., para. 7.428. 86 The Proposal for Regulation of the EU Commission seeks to confer powers to the Commission which comprise the imposition of “restrictions of the use of Union ports by vessels flying the flag of the country allowing non-sustainable fishing […] that had been caught either by vessels flying the flag of the country allowing non-sustainable fishing or by vessels authorised by it while flying another flag,” Art. 4 (1)(e) Proposal for Regulation (note 10).

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but also, and foremost, a measure inconsistent with Article XI:1 GATT. This provision mandates members of WTO not to institute any prohibitions or restrictions or other measures on the importation of any other product from the territory of another Member State.87 The scope of that provision is extensive, given that the enumerated list is non-exhaustive and that it includes a reference to ‘other measures’, other than the enumerated ones, whose effects are similar to prohibitions or restrictions.88 Its general prohibition on all measures other than duties was highlighted in the GATT Panel Report Japan – Trade in Semi-conductors, which referred to the WTO Panel Report in India – Quantitative Restrictions,89 when holding that Article XI:1 GATT applies “to all measures instituted or maintained by a [Member] prohibiting or restricting the importation […] other than measures that take the form of duties, taxes or other charges.”90 In India – Autos the WTO Panel held that because of the specific terms in Article XI:1 GATT, its scope encompasses any measures which constitute “any form of limitation imposed on, or in relation to importation.”91 Accordingly, it can readily be argued that the term ‘restriction on importation’ in Article XI:1 GATT is susceptible to encompass any measure which “effectively limits the amount of imports that a manufacturer may make.”92 In other words, to the extent that one of the relevant coastal States, through whose maritime areas the shared fish stock migrates, imposes sanctions such as closure of ports with regard to any transhipment of catch from vessels flying the flag of the other relevant State(s), this action could effectively be characterised as a measure which falls within the realm of the prohibition in Article XI:1 GATT, given its a priori reverse effect on the respective trade flows.

87

Art. XI:1 GATT reads as follows: “No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party”. 88 On this issue see WTO, Brazil – Measures Affecting Imports of Retreated Tyres, Report of the Panel of 17 December 2007, WT/DS332/R, para. 7.371. 89 Id., India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, Report of the Panel of 22 September 1999, WT/DS90/R, para. 5.128. 90 GATT, Japan – Trade in Semi-conductors, Report of the GATT Panel of 4 May 1988, BISD 35S/116, para. 104. 91 WTO, India – Measures Affecting the Automobile Sector, Report of the Panel of 5 April 2002, WT/ DS175/R, para. 7.265. 92 Ibid., para. 7.268.

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Where a provision appears inconsistent with WTO law, a measure which is contrary to Article XI:1 GATT, and not justified under Articles XI:2(c) and XIII GATT, can nevertheless be justified under the general exceptions provided in Article XX GATT, one of which concerns measures relating to the conservation of exhaustible natural resources: Article XX (g) GATT. In order for a measure to be justifiable under subparagraph (g) it would need to: (i) relate to the conservation of exhaustible natural resources, and (ii) be made effective in conjunction with restrictions on domestic production or consumption. At first sight one notes the different language in that subparagraph in comparison to subparagraphs (a)–(d) of Article XX GATT. While the latter refers to ‘necessary’ measures, subparagraph (g) omits any reference to measures that are ‘necessary’. That difference is, according to treaty interpretation rules, part of the context that should be taken into consideration in the interpretation of subparagraph (g).

1. No Ratione Loci Limitations In Canada ! Unprocessed Herring and Salmon93 the GATT Panel held that the chapeau of Article XX indicates that “the purpose of including Article XX (g) in the [GATT] was not to widen the scope for measures serving trade policy purposes but merely to ensure that the commitments under the [GATT] do not hinder the pursuit of policies aimed at the conservation of exhaustible natural resources.”94 The Tuna – Dolphin II95 dispute is illustrative for the present purposes. In that dispute, the parties were in disagreement as to whether a national policy, in casu that of the United States (US), could validly reach the protection of natural resources beyond the jurisdiction of the State in question. The Panel noted that Article XX (g) GATT does not include any ratione loci limitation. In the words of the GATT Panel “the policy to conserve dolphins in the eastern tropical Pacific Ocean, which the [US] pursued within its 93

GATT, Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, Report of the GATT Panel of 22 March 1988, BISD 35S/98. 94 Ibid., para. 4.6. 95 GATT, US – Restrictions on Imports of Tuna II, Report of the GATT Panel of 16 June 1994, DS29/R (not adopted).

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jurisdiction over its nationals and vessels, fell within the range of policies covered by Article XX (g).”96 In concluding that nothing in the GATT would prevent a contracting party to adopt measures which were located beyond its jurisdiction,97 the Panel noted that two previous GATT Panels had concluded that Article XX (g) could justify a measure whose purpose was to protect migratory fish species, despite contrary to other relevant GATT provisions.98 The Marine Mammal Protection Act of 1972 (MMPA)99 prohibited, inter alia, the import into the US of tuna or tuna products harvested by a method that resulted in the incidental killing or serious injury of marine mammals in excess of US standards. Hence, where a country exporting tuna to the US could not prove to the US authorities that it met the US dolphin protection standards, the US government placed an embargo on all imports of the fish originating from that country or intermediary countries where the fresh product would have been processed.100 That finding differed slightly to the Tuna – Dolphin I Case, in which the GATT Panel held that GATT rules did not allow a contracting party to take trade action unilaterally for the purpose of attempting to enforce its own domestic environmental policies vis-à-vis another contracting party: the provisions of the [GATT] impose few constraints on a party’s implementation of domestic environmental policies […] a contracting party is free to tax or regulate imported products and like domestic products as long as its taxes or regulations do not discriminate against imported products or afford protection to domestic producers […]. As a corollary to these right, a contracting party may not restrict imports of a product merely because it originates in a country with environmental policies different from its own.101

That GATT Panel report shortly after its circulation was characterised as “probably the most controversial in GATT’s 44-year history” and “confirm[s] the fears in 96

Ibid., para. 5.20. Ibid., paras. 5.15–5.17. 98 GATT, Canada ! Measures affecting Exports of Unprocessed Herring and Salmon (note 93); id., United States ! Prohibition of Imports of Tuna and Tuna Products from Canada, Report of the GATT Panel of 22 December 1981, L/5198–29S/91 (adopted on 22 February 1982). 99 Marine Mammal Protection Act of 1972, 16 USC §§ 1361–1421h (1994). 100 The embargo did not apply to countries which had entered into agreement with the US, pursuant to which it had undertaken certain commitments as to the employment of seine nets for the fishing of tuna. 101 GATT, United States – Restrictions on Imports of Tuna I, Report of the GATT Panel of 3 September 1991, DS21/R, para.6.2 (emphasis added) (not adopted). On this case see Theodore McDorman, The 1991 U.S.-Mexico GATT Panel Report on Tuna and Dolphin: Implications For Trade and Environment Conflicts, North Carolina Journal of International Law and Commerce 17 (1992), 461. 97

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some camps that trade rules could hinder environmental efforts.”102 As will be explained below, the underlying reasoning in those findings, which were never adopted by the contracting parties to GATT,103 has to some extent been overruled by the Appellate Body in US – Shrimp.104 Here, the Appellate Body held that in order for a measure to be justified under subparagraph (g) of Article XX GATT, there needs to be a sufficient nexus between the measure, its nature, and its objectives. The sufficient nexus has been understood to imply that if species do not migrate in areas within national jurisdiction there would not be a sufficient jurisdictional nexus. Simmons has argued that “it remains unclear whether future panels will allow countries to implement measures protecting natural resources outside their jurisdiction.”105 A reading of subparagraph (g) of Article XX GATT would seem incorrect given that it could be difficult to substantiate that such physical link would be needed to have an interest to ensure that the goals of optimal use of the worlds resources, as expressed in the first preambular paragraph in the WTO Agreement, would be met.106 However, the question of whether the imposition of trade sanctions, in absence of joint management measures of a shared fish stock, would fulfil the criteria in subparagraph (g) would only become relevant if the State imposing the trade measures would be a third State through whose waters the fish stock did not migrate.

102

Steve Charnovitz, GATT and the Environment: Examining the Issues, International Environmental Affairs 4 (1992), 203, 203. 103 Contrary to the negative consensus rule applicable to, inter alia, the adoption of Panel Reports by the WTO Dispute Settlement Body, the adoption of GATT Panel Reports required consensus. 104 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel of 12 October 1998, WT/DS58/R. The Panel Report was on several issues of importance overruled by the Appellate Body, WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/DS58/AB/R. It has been argued that “[t]hrough a more literal interpretation of the text of Article XX, the Appellate Body has abandoned several tests […] that prior panels had imposed […] that had no basis in the actual language of Article XX.” Carrie Wofford, A Greener Future at the WTO: The Refinement of WTO Jurisprudence on Environmental Exceptions to GATT, Harvard Environmental Law Review 24 (2000), 563, 573. 105 Benjamin Simmons, In Search of Balance: An Analysis of the WTO Shrimp/Turtle Appellate Body Report, Columbia Journal of Environmental Law 24 (1999), 413, 440. 106 See generally Howard F. Chang, Toward a Greener GATT: Environmental Trade Measures and the Shrimp-Turtle Case, Southern California Law Review 74 (2000), 31, 35.

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2. A Measure which ‘relates to’ Article XX GATT does not explicitly refer to the environment as such, but it suffices for the present purpose to note that the Preamble to the WTO Agreement recognises that the “optimal use of the world’s resources” should be attained “with the objective of sustainable development, seeking both to protect and preserve the environment.” In US – Shrimp, the Panel took a view which would confer little discretion to States as to the application of subparagraph (g) of Article XX GATT, and to some extent being resonant of the conclusions in the Tuna – Dolphin Panel Reports. According to the Panel, the US Section 609, the validity of which the claimants rejected, was inconsistent with Article XI:1 GATT and not justified by Article XX (g) GATT. The Panel noted that the US regulation banned imports of shrimp or shrimp products from any country not meeting certain policy conditions,107 before adding that the US measure and its application by the US authorities “are sufficient evidence that the United States imposes a ‘prohibition or restriction’ within the meaning of Article XI.1. We therefore find that the Section 609 violates Article XI.1 of GATT 1994.”108 That Report was appealed by the US and some of the main findings in the Panel Report were overruled by the Appellate Body. While referring to its findings in US – Gasoline,109 it held that when examining measures under subparagraph (g), it should be borne in mind that the chapeau of Article XX “by its express terms addresses, not so much the questioned measure or its specific contents as such, but rather the manner in which that measure is applied.”110 It held further that “it is important to underscore that the purpose and object of the introductory clauses of Article XX is generally the prevention of ‘abuse of the exceptions of [Article XX]’,”111 and by the same token circumscribing the measures susceptible to be justified under Article XX GATT. Subparagraph (g) in Article XX opens with a requirement that in order for a measure, which otherwise would be inconsistent with GATT, to be justified pursuant to Article XX GATT, it needs to relate to the conservation of exhaustible natural

107 108 109 110 111

WTO, US – Shrimp, Panel Report (note 104), para. 7.16. Ibid., para. 7.17. WTO, United States – Gasoline, Report of the Appellate Body of 20 May 1996, WT/DS2/AB/R, 22. WTO, US – Shrimp, Appellate Body Report (note 104), para. 115 (emphasis in original). Ibid., para. 116.

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resources.112 In Canada – Unprocessed Herring and Salmon the Panel stressed that it is a condition precedent that such a measure, in order to fall within the realm of Article XX (g) GATT, “had to primarily be aimed at the conservation of an exhaustible natural resource to be considered as ‘relating to’ conservation within the meaning of Article XX (g).”113 The Appellate Body noted in US – Gasoline, that ‘primarily aimed at’ is not treaty language. However, it decided not to look further at that aspect in those particular proceedings because all the participants and the third participants in that appeal accepted the propriety of the application of the Herring and Salmon report.114 In US – Shrimp the Appellate Body held that Section 609 was primarily aimed at the conservation of natural resources because the measure at stake “is not disproportionately wide in its scope and reach in relation to the policy objective of protection and conservation of sea turtle species. The means are, in principle, reasonably related to the ends.”115 Further, having established that the Panel had erred in its legal findings, and having decided to complete the legal analysis, the Appellate Body held that it was due to “examine the relationship between the general structure and design of the measure […] and the policy goal it purports to serve.”116 It then undertook an examination of whether Section 609 ‘relates to’ conservation of exhaustible natural resources before stressing that the treaty interpreter should “essentially [look] into the relationship between the measure at stake and the legitimate policy of conserving exhaustible natural resources […]. None of the parties to this dispute question the genuineness of the commitment of the others to that policy.”117 It is arguable that the genuineness of the measure played a determinant role when holding that the measure did relate to the conservation of exhaustible natural resources. That examination lead the Appellate Body to state that the contested measure, in its general design and structure is not a simple prohibition of the importation of shrimp, nor is it disproportionately wide in its scope and reach in relation to the policy objective of protection and conservation of sea turtle species. It also stressed that “the means are reasonably related to the ends” and “therefore, Section 609 is a measure ‘relating to’

112 113 114 115 116 117

Ibid., para. 131. GATT, Canada ! Unprocessed Herring and Salmon (note 93), para. 4.6 (emphasis added). WTO, US – Gasoline (note 109), 18. WTO, US – Shrimp, Appellate Body Report (note 104), para. 141. Ibid., para. 137. Ibid., para. 135.

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the conservation of an exhaustible natural resource within the meaning of Article XX (g) of the GATT 1994.”118

3. Restrictions on Domestic Producers Whether a prohibition or restriction, with regard to transhipment (e.g. of fish or other products that originate from one of the States through whose waters the shared fish stock migrates), could be considered to fulfil the first tier of the cross-examination would be subject to a finding of whether the relationship between the general structure and design of the measure and the policy goal it purports to serve could reasonably be seen to serve the conservation of the fish stock in question. That criterion could be considered to be fulfilled, despite such a prohibition could bear retaliatory characteristics. According to a plain reading of subparagraph (g) of Article XX GATT, the consistency of a measure with that subparagraph would be contingent on a determination of whether the prohibition would not only relate to the conservation of exhaustible natural resources but also be “made effective in conjunction with restrictions on domestic production or consumption.” In US – Gasoline, the Appellate Body held the above requirement is a clause of “requirement of even-handedness in the imposition of restrictions, in the name of conservation, upon the production or consumption of exhaustible natural resources.”119 In US – Shrimp, the Appellate Body noted that the US regulations require shrimp trawlers flying the US flag to use approved equipment to protect turtles, the violations of which include civil and criminal sanctions.120 Therefore, Section 609 was held to be even-handed because it is implemented in a manner in which it is made effective in conjunction with the restrictions on domestic harvesting of shrimp, as required by Article XX (g) GATT. That said, would the design and purpose of a restrictive trade measure as a reaction to a failure to reach relevant joint management and conservation measures not be a trade sanction vis-à-vis the other States rather than a measure originating in an environmental policy? Not necessarily, but it should be recalled that the reason for

118 119 120

Ibid., para. 142. WTO, US – Gasoline (note 109), 21. WTO, US – Shrimp, Appellate Body Report (note 104), para. 144.

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which the Appellate Body in US – Shrimp held that the contested measure was evenhanded was because the policy was “shared by all participants in the appeal.”121

4. Fulfilling the Criteria to Trade Measures – Where No Agreement Exists Could the relationship between e.g. the closure of ports or prohibition of unloading of like products towards vessels flying the flag of one of the coastal States engaged in the fisheries of the relevant shared fish stock be held to constitute a genuine environmental policy, while in essence more likely could be a disagreement of allocation between the relevant coastal States? Different parameters could be used to determine that particular finding, e.g. whether the measure would apply indiscriminately to all other parties involved and whether such a measure would have been followed with commensurate measures for the domestic industry (e.g. whether the prohibition of unloading or port closure for vessels flying the flag of the other States interested in the fisheries could be characterised as means “reasonably related to the ends”).122 The key determination would of course be whether the cumulative conditions justifying the otherwise inconsistent GATT measure, would be fulfilled. Firstly, the measure would need to be deemed to ‘relate to’ the conservation of exhaustible natural resources. It could, in light of the above, be considered difficult for a disagreement on allocation of a shared fish stock, provoking trade sanction measures by a State engaged in the fisheries of the shared fish stock in question, to fulfil the even-handedness test. Secondly, the measures would need to apply and be made effective, albeit not in an identical manner, in conjunction with restrictions on domestic production or consumption. This would imply that to the extent a prohibition of unloading or closure of ports would be enforced, vis-à-vis the other parties involved in the fisheries of the shared fish stock, the relevant State should equally, or in a similar manner, apply the measure to the domestic producers in order to be consistent with Article XX (g) GATT. Or, if the State involved had imposed a moratorium on the fisheries of the shared stock, a port closure or prohibition of unloading could definitely be held to relate to the conservation of that stock, and would equally be held to be applied in a commensurate manner to 121 122

Ibid. Ibid,. para. 141.

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the domestic industry, and, hence fulfilling the cumulative criteria in subparagraph (g). This does not necessarily mean that the State in question would indubitably need to impose a moratorium within its own waters for such measure to fulfil the second criterion in subparagraph (g) of Article XX GATT. Nevertheless, it is clear that the prohibition applicable solely for vessels flying the flag of the other States interested in the fisheries would render such measure inconsistent with the second criterion in the subparagraph (g) because it would, thus, not apply in a similar manner to the domestic producers. As the Appellate Body stressed in US – Gasoline, “we believe that the clause “if such measures are made effective in conjunction with restrictions on domestic products or consumption” is appropriately read as a requirement that the measures concerned impose restrictions, not just in respect of imported [products], but also with respect to domestic [products].”123 By the same token it would seem impossible for States, actively involved in the fisheries of the relevant shared fish stock, to adopt trade measures only towards the vessels of third States involved in the fisheries of that same stock that would be consistent with Article XX (g) GATT.

5. Comparisons with the Recent Proposal of the European Commission The Proposal for Regulation of the EU Commission,124 if adopted, confers powers to the Commission to unilaterally adopt trade sanctions towards third States that are engaged in the fisheries of a shared fish stock to which the EU is a relevant stakeholder. The purpose of the Proposal for Regulation would seem to be to define the conditions upon which a country can be considered as allowing “non-sustainable fishing,”125 and to define measures whose purpose “should aim at removing incentives for the fleets of the country allowing non-sustainable fishing to fish on the stock of common interest.”126 It appears that the central element is the determination of third countries which would fall within the ratione personae of the Proposal for Regulation, which is the EU’s definition of “non-sustainable fishing” nations. According to Article 3 Proposal for Regulation, a third country may be defined as a non-sustainable fishing country if 123 124 125 126

WTO, US – Gasoline (note 109), 19. See supra, note 10. Para. 4 Preamble Proposal for Regulation (note 10). Para. 5 Preamble Proposal for Regulation (note 10).

450 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 (a) it fails to cooperate with the Union in the management of a stock of common interest in full accordance with the provisions of [UNCLOS and the Fish Stocks Agreement], and (b) that third country [i] has failed to adopt any fishery management measures, or [ii] has adopted such measures without due regard to the rights, interests and duties of others including the European Union, and those fishery management measures lead to fishing activities which would lead the stock below the levels that can produce maximum sustainable yield, when considered in conjunction with measures taken by the Union either autonomously or in cooperation with other countries.127

It would appear that a coastal State which conducts so-called non-sustainable fisheries of a shared fish stock would, pursuant to Article 3 (1)(a) Proposal for Regulation, partly be any State which has failed to cooperate with the Union. This could seem problematic given that the failure of ‘cooperation’ could be nothing other than a disagreement on allocation of the shared fish stock. Further, this provision would seem to be based on an understanding that the undertaking of fisheries of the shared fish stock by the EU fleet per se does not contribute to the non-sustainable fisheries, a determination which certainly could be open to discussion. This would also imply that sanctions adopted on the basis of the Proposal would – it appears – therefore not apply to the EU industry. However, in order to be consistent with Article XX (g) GATT the restrictions applied to the producers other than the domestic one “and the related domestic restrictions [must] operate at the same time. This view is supported by the ordinary meaning of the term in conjunction with, which is ‘the act or an instance of conjoining: the state of being conjoined; occurrence together in time or space’.”128 By contrast, the Proposal for Regulation admits its exclusive application to foreign stakeholders and therefore seems to be a disguised restriction on trade in order to vest the EU with a legal instrument to safeguard its domestic industry. However, as the recent Panel held in China – Measures related to the Exportation of Various Raw Materials, a finding not reviewed by the Appellate Body, that subparagraph (g) should not “be invoked for GATT-inconsistent measures whose goal or effects is to insulate domestic producers from foreign competition in the name of conservation.”129 Nonetheless, the Proposal for Regulation would seem to do just that. Finally, it should also be pointed out that while the compulsory dispute settlement mechanism is inoperative with regard to the exercise of coastal States’ sovereign 127

Art. 3 (1) Proposal for Regulation (note 10). WTO, China – Measures Related to the Exportation of Various Raw Materials, Report of the Panel of 5 July 2011, WT/DS394/R, WT/DS395/R, WT/DS396/R, para. 7.398. 129 Ibid., para. 7.408. 128

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rights to, inter alia, exploit the natural resources within their EEZ,130 any party to such a dispute may pursuant to Article 297 (3)(b)(i) UNCLOS submit the dispute to conciliation under Annex V, Section 2 UNCLOS. This can be done where a coastal State has “manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not seriously endangered.”131 It would appear that the Proposal of the EU Commission bypassed the Article 297 (3)(c) procedure in UNCLOS applicable to deadlocked situations to, inter alia, the management of shared fish stocks, hence favouring unilateralism instead of exhausting the multilateral remedies in UNCLOS.

C. The Chapeau

To the extent that a national measure prohibiting the imports of an exhaustible natural resource could be considered to relate to the conservation of such a resource, and also fulfil the even-handedness criterion in subparagraph (g) (i.e. that its application extends mutatis mutandis to the domestic industry and consumers), its consistency with Article XX (g) GATT, would still depend on its consistency with the chapeau of Article XX, the so-called second tier. The second tier analysis can be segmented in three different steps. A determination whether the measure constitutes: – an arbitrary discrimination between countries where the same conditions prevail or, – an unjustifiable discrimination between countries where the same conditions prevail, and – a disguised restriction on international trade. In US – Gasoline the Appellate Body held that the discrimination test for the purpose of the chapeau of Article XX is different from the determination of whether a measure is discriminatory with regard to one of the substantive obligations, such as Articles I, III or XI GATT.132 Hence, that determination would not be conducted with the same severity. However, the chapeau in Article XX GATT is animated by 130 131 132

See Art. 297 (3)(a) UNCLOS. Art. 297 (3)(b)(i) UNCLOS. WTO, US – Gasoline (note 109), 23.

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the principle that while the exceptions may be invoked “as a matter of legal right, they should not be so applied as to frustrate or defeat the legal obligations of the holder of the right under the substantive rules of the [GATT].”133 There is no measure which by its purpose or goal may be qualified or disqualified as falling within the ambit of Article XX (g) GATT. The appellant in US – Shrimp had argued that the policy goal of a measure can provide a sole rationale for justification, and therefore by its very nature cannot constitute an unjustifiable discrimination, within the meaning of the chapeau of Article XX GATT.134 However and as rightly pointed out by the Appellate Body, “it does not follow from the fact that a measure falls within the terms of Article XX (g) that the measure also will necessarily comply with the requirements of the chapeau. To accept the argument of the [US] would be to disregard the standards established by the chapeau.”135

1. The Three Inter-Related Criteria Within Article XX GATT Multilateralism is the preferred approach for reaching environmental aims, but is not a requisite in order to fall within the ambit of Article XX (g) GATT. This means that where a State, in the absence of a joint conservation and management agreement, has recourse to unilateral trade measures in the name of conservation, a disqualification with regard to the fulfilment of the criteria in the chapeau of Article XX GATT is not necessarily implied. As the Appellate Body stated, the fact that the genesis of Section 609 MMPA was unilateral, would not inhibit it of being characterised as justifiable discrimination within the meaning of the chapeau of Article XX GATT. On the contrary, it was the failure of the US to “engage the appellees, as well as other Members exporting shrimp to the US domestic market, in serious negotiations with the objective of concluding bilateral or multilateral agreements for the protection and conservation of sea turtles” which was a circumstance which would bear heavily “in any appraisal of justifiable or unjustifiable discrimination.”136 The Appellate Body held also that it was because the US negotiations were serious with some countries, 133

Ibid., 22. United States appellant’s submission, para. 28, quoted in WTO, US – Shrimp, Appellate Body Report (note 104), para. 148. 135 Ibid. 136 Ibid., para. 166. 134

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and less serious with other that the imposition of an import ban was seen as an unjustifiable discrimination within the meaning of the chapeau of Article XX GATT. Further, the compliance Panel in US – Shrimp emphasised its understanding of the above findings of the Appellate Body when stating that the unilateral conception of Section 609 MMPA “failed to take into account the different situations which may exist in the exporting countries. In other words, the [US] failed to pass the ‘unjustifiable discrimination’ test by applying the same regime to domestic and foreign shrimp.”137 Malaysia argued also that pursuant to the Appellate Body findings, the US was obliged to conclude an agreement with the various countries, hence implying that the pactum de negotiando, in order to pass the ‘unjustifiable discrimination’ test was in fact an obligation of result. The compliance panel, in a finding not reviewed by the Appellate Body in its compliance report,138 rejected that argument139 and held that according to its understanding of the Appellate Body findings, the US had “an obligation to make serious good faith efforts to address the question of the protection and conservation of sea turtles at the international level.”140 It stated further that “in view of the serious, good faith efforts made by the [US] to negotiate an international agreement ‘Section 609 is now applied in a manner that no longer constitutes a means of unjustifiable or arbitrary discrimination, as identified by the Appellate Body in its Report’.”141 The three criteria in Article XX are not only cumulative but also inter-related. The determination of the fulfilment of one of the criteria cannot be seen as deprived of an impact for the determination in relation to one or both of the other criteria therein. In US – Gasoline the Appellate Body stressed that arbitrary discrimination, unjustifiable discrimination, and disguised restriction on international trade “may be read side-by-side.” It went on to state that “the kinds of considerations pertinent in deciding whether the application of a particular measure amounts to ‘arbitrary or unjustifiable discrimination’, may also be taken into account in determining the presence of a 137 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia, Report of the Panel of 15 June 2001, WT/DS58/RW, para. 5.46. 138 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 by Malaysia, Report of the Appellate Body of 22 October 2001, WT/DS58/AB/RW. 139 WTO, US – Shrimp, Recourse to Article 21.5 by Malaysia, Report of the Panel (note 137), para. 5.65. 140 WTO, US – Shrimp, Recourse to Article 21.5 by Malaysia, Report of the Panel (note 137), para. 5.76. 141 WTO, US – Shrimp, Recourse to Article 21.5 by Malaysia, Report of the Appellate Body (note 138), para. 134.

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‘disguised restriction’ on international trade. The fundamental theme is to be found in the purpose and object of avoiding abuse or illegitimate use of the exceptions to substantive rules available in Article XX.”142 Thus, findings that port closures or unloading bans would be arbitrary or unjustifiable discrimination could have an impact on whether the third criterion in the chapeau would be fulfilled. Furthermore, the third criterion in the chapeau remains a separate and autonomous element which would seem more purpose-oriented, in which the determination would be subject to the origins of the measure and not only the effects of the measure. Hence, the measure being adopted in the name of environmental policy to conserve a shared fish stock, whose management is not subject to a joint conservation and management agreement, would be subject to a thorough examination in which the determination of its consistency with one criterion of the chapeau would have an impact on the other criteria therein.

2. Proposal for Regulation in Light of the Chapeau It would seem clear that in order not to be arbitrary or permit unjustifiable discrimination, the application of a measure with punitive characteristics would need to apply on a premise that all third States are juxtaposed as to the objective criteria determining its enforcement. The criterion of objectiveness has an impact on the determination whether such a measure would constitute a disguised restriction to trade. It should be noted that the Proposal for Regulation allows third States to be classified as authorising and undertaking non-sustainable fisheries if that State has adopted conservation measures without EU cooperation, which according to the Proposal would render the stock to be below its maximum sustainable yield. If the Proposal for Regulation is adopted, the EU at the domestic level will vest itself with the discretion to determine the level of sustainable allowable catches of third States ! while this is a coastal State’s discretion ! and enforce trade sanctions towards such States. Further, that determination would, according to the Proposal for Regulation, be made by taking into account the autonomous measures of the EU “in cooperation with other countries,”143 thus, admitting differential application to the relevant 142 143

WTO, US – Gasoline (note 109), 25. Art. 3 (1)(b) Proposal for Regulation (note 10).

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stakeholders of the shared fish stock by the entry into separate prior agreements with some of the relevant stakeholders. In other words, the Proposal for Regulation of the EU provides a legal basis to impose trade sanctions to a selective number of States. By determining whether a State is undertaking non-sustainable fisheries not only “when considered in conjunction with measures taken by the Union” but also taking into account measures of third countries144 the criteria seems to fall in subjectivism, and therefore arbitrary discrimination on opportunistic grounds. Therefore, it is clear that such powers would confer on economically powerful States, in casu the EU, an upper hand in the unilateral determination of which States conduct non-sustainable fisheries and towards whom trade sanctions should be imposed. This could, hence, be seen as an instrument rendering more difficult the conclusion of joint conservation and management measures. Not only does it trespass coastal States prerogatives, but by giving a large discretion to the EU to engage in alliances with a selective number of States, and hence ensuring that such States would not fall within the ratione personae of possible trade sanctions, it is likely to be counter-productive.

3. Jurisdictional Limitations and the Objectivity of the Criteria As seen earlier, in US ! Shrimp, while the scene situation is not entirely the same as that of shared fish stocks, the Appellate Body to some extent bypassed the jurisdictional considerations to consider the propriety of a trade measure which assumes that the exploitation of natural resources within a third State is non-sustainable. The Appellate Body noted that sea turtles traverse the US jurisdiction before stating that it would “not pass upon the question of whether there is an implied jurisdictional limitation in Article XX (g), and if so, the nature or extent of that limitation. We note only that in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for purposes of Article XX (g).”145 The Appellate Body took a position directly in contrast with a conclusion of the GATT Panel in Tuna – Dolphins II. Whereas the latter had not concluded that there were territorial limitations per se to 144 145

Art. 3 (1)(b)(b) Proposal for Regulation (note 10). WTO, US – Shrimp, Appellate Body Report (note 104), para.133.

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national environmental measures,146 such extra-territorial measures could not be considered to relate to conservation, within the meaning of Article XX (g) if it would equate to permit contracting parties to take trade measures so as to force other contracting parties to change their policies within their jurisdiction, including their conservation policies, the balance of rights and obligations among contracting parties, in particular the right of access to markets, would be seriously impaired. Under such an interpretation the General Agreement could no longer serve as a multilateral framework for trade among contracting parties.147

For reasons mentioned earlier, it seems clear that where a shared fish stock migrates through the waters of State A, then that State has sufficient nexus to adopt measures under subparagraph (g) of Article XX GATT, with regard to that particular fish stock. The question of whether such measure would be justified or discriminate arbitrarily would inter alia be looked on by seeking to determine whether and to what extent that State had fulfilled its pactum de negotiatum equally between the various States. As a matter of fact, a correct application of the chapeau of Article XX (g) GATT could not be undertaken without assessing the circumstances in which the pactum de negotiatum would have been exercised by the different stakeholders in order to determine not only whether it would be an arbitrary or unjustifiable discrimination but also, and foremost, whether the measure in question would relate to the conservation of the shared stock by contrast to a disagreement on allocation between the relevant stakeholders. It could be seen as a difficult task for a WTO Panel or the Appellate Body to decide whether the obligation of conduct enshrined in Article 63 (1)–(2) UNCLOS would have been breached in the assessment of whether the criteria in the chapeau would have been fulfilled. It would require a detailed factual valuation, including an assessment of the relevant coastal States’ allowable catch, reflecting its demands in the regional negotiations, in order to determine whether a differential application between different stakeholders would be justified under the chapeau of Article XX. Further, the admissibility of such undertaking would be questionable, to the extent the fisheries would have been undertaken in maritime areas of national jurisdiction given that it would necessarily assume that the due regard provision in Article 56 (2) UNCLOS would not have 146 147

GATT, US – Restrictions on Imports of Tuna II (note 95), para. 5.20. Ibid., para. 5.26.

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been complied with. The compulsory dispute settlement mechanism in Part XV Section 2 UNCLOS is inoperative with regard to coastal States’ “discretionary powers for determining the allowable catch”148 of the living marine resources in areas within their jurisdiction. In other words, no Part XV tribunal or the Court would, consistent with UNCLOS, have jurisdiction to consider such a plea in the absence of the relevant coastal States’ consent. Can a WTO panel or the Appellate Body, where relevant, on the basis of Article 31 (3)(c) VCLT, be oblivious to those jurisdictional reservations when seeking, to determine whether trade measures could be justified under GATT – when seeking to determine e.g. whether differential applications to different relevant coastal States is a justifiable or non-arbitrary discrimination? In that regard it should be noted that it is accepted that the jurisdiction of an international court or international adjudicative body to decide in a dispute, in which a State is a party, is limited and only exists in so far the consent has been given.149 It is also well established that international tribunals may be vested with incidental jurisdictional powers as recognised in the maxim accessorium sequitur principale.150 Nevertheless, despite being appropriately vested with incidental powers, an adjudicative forum could only assert jurisdiction if the dispute between the parties “is one which the Court has jurisdiction ratione materiae to entertain.”151

IV. Conclusion As has been generally outlined in this paper, for a measure, taken in response to the failure of the adoption of a joint management and conservation agreement with regard to a shared or straddling fish stock to be justified under the exception in Article XX (g) GATT, it will need to fulfil various criteria. While each of the criteria 148

Art. 297 (3)(a) UNCLOS (emphasis added). PCIJ, Mavrommatis Palestine Concessions (Greece v. United Kingdom of Great Britain and Northern Ireland), Jurisdiction, Judgment of 30 August 1924, Series A, No. 2, 16. 150 See Certain German Interests in Polish Upper Silesia where the Permanent Court stated that “the interpretation of other international agreements is indisputably within the competence of the Court if such interpretation must be regarded as incidental to a decision on a point in regard to which it has jurisdiction,” PCIJ, Certain German Interests in Polish Upper Silesia (Germany v. Poland), Preliminary Objections, Judgment of 25 August 1925, Series A, No. 6, 18. 151 ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment of 12 December 1996, ICJ Reports 1996, 810, para. 16. 149

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in Article XX (g) GATT and those in the chapeau of Article XX GATT are separate and autonomous criteria, they jointly interact and relate to each other. Coastal States have sovereign rights and discretion to determine and establish allowable catches in maritime areas within national jurisdiction. The obligation within Article 63 (1)–(2) UNCLOS is limited to an obligation of conduct, which does not waive a reading of Part V UNCLOS, consistent with which the fisheries policies of coastal States determine the implementation of Article 61 UNCLOS. One issue of fundamental importance as to the justification of trade measures applicable on third States in the absence of relevant conservation and management measures to a shared fish stock relates to the jurisdictional reservation in Article 297 (3)(a) UNCLOS. Further, if a Panel or Appellate Body were to undertake a review of how the pactum de negotiatum in Article 63 (1)!(2) has been exercised in order to determine whether the measures in question were in compliance with the chapeau of Article XX GATT would be tantamount to setting aside the right of States to invoke the conciliation procedures under Annex V UNCLOS. Any State may, consistent with Section 1 of Annex V UNCLOS, institute conciliation proceedings with regard to any matter which is not subject to the Part XV compulsory dispute settlement mechanisms. One such question is the determination of the allowable catch within coastal States’ maritime areas of jurisdiction where the relevant coastal State breaches its obligation with regard to the rights of third States in the exercise of its rights in Part V UNCLOS. All stakeholders to a shared fish stock are evidently reluctant to accept decreases of their shares in an allocation. However, where States use Article XX (g) GATT to impose trade sanctions on third States through whose maritime jurisdiction the shared fish migrates, instead of availing themselves through the procedures under UNCLOS, could be seen as a pretext for enforcing coercion measures that are disguised restrictions to international trade. Such measures have the potential of making the settlement of such disagreements, far more difficult, in light with equitable procedures, and therefore not achieving the goals of Article 63 (1)–(2) UNCLOS, namely to reach an agreement on allocation.

Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area ROSEMARY RAYFUSE(

ABSTRACT: On 1 February 2011 the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea adopted its unanimous Advisory Opinion on the responsibilities and obligations of States sponsoring deep seabed mining activities in the Area. In its Opinion the Chamber endorsed high standards of due diligence and the obligations to apply precaution, best environmental practices, and to undertake effective environmental impact assessments. Importantly the Chamber also confirmed that all sponsoring States, whether developing or developed, have the same obligations in respect of activities in the Area, including obligations relating to protection of the marine environment. Thus, taking into account the special needs and interests of developing sponsoring States may condition the specific content of their international obligations but it does not absolve them of all responsibility for breaches of those obligations. This paper analyses the Opinion against the background of the practice of deep seabed mining and its possible effects on the marine environment, the legal regime governing deep seabed mining, Nauru’s apparent attempt to escape the obligations of sponsoring States as too onerous for developing countries, and the written and oral submissions of States and other interested parties. KEYWORDS: State responsibility, deep seabed mining, the Area, International Seabed Authority, Seabed Disputes Chamber, developing sponsoring States, activities in the Area

I. Introduction At its seventeenth session in July 2011, the International Seabed Authority (ISA, or the Authority) approved applications for approval of plans of work by Nauru Ocean Resources Inc (NORI), sponsored by the government of Nauru, and Tonga Offshore Mining Limited (TOML), sponsored by the government of Tonga, for exploration of polymetallic nodules in reserved areas of the Clarion-Clipperton (

Professor of International Law, Faculty of Law, University of New South Wales, Sydney, Australia and Conjoint Professor of International Environmental Law, Faculty of Law, Lund University, Sweden.

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Zone.1 These applications were the first to have been submitted to the ISA by private contractors sponsored by developing States for approval of plans of work in the reserved areas. Originally submitted in 2008,2 in 2009 the applicants had requested that consideration of their applications be postponed due to the global economic circumstances and concerns over their potential liability for damage caused by exploration activities.3 In an effort to clarify these concerns, in 2010 the Republic of Nauru submitted a proposal to the ISA requesting it to seek an advisory opinion from the Seabed Disputes Chamber (the Chamber) of the International Tribunal for the Law of the Sea (ITLOS) on a number of questions regarding the responsibility and liability of sponsoring States.4 Following extensive discussions on the proposal, the Council of the ISA decided not to adopt the proposal as formulated by Nauru but rather to submit a request for an advisory opinion on three more abstract but concise questions relating to the nature and content of legal responsibilities and obligations and the extent of liability of States involved in sponsoring activities in the Area. On 1 February 2011, in a trio of historic firsts, the Chamber issued its Advisory Opinion on the Rights and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area (Advisory Opinion, or the Opinion).5 Not only was this the first time the advisory jurisdiction of ITLOS had been invoked and the

1 See ISA, Decision of the Council relating to a request for approval of a plan of work for exploration for polymetallic nodules submitted by Nauru Ocean Resources Inc, ISBA/17/C/14, 19 July 2011, and Decision of the Council relating to a request for approval of a plan of work for exploration for polymetallic nodules submitted by Tonga Offshore Mining Limited, ISBA/17/C/15, 19 July 2010; all documents of the ISA are available via: http://www.isa.org.jm/en/sessions (accessed on 10 November 2011). 2 Nauru Ocean Resources Inc., Application for Approval of a Plan of Work for Exploration, ISBA/ 14/LTC/L.2, 21 April 2008, and Tonga Offshore Mining Limited, Application for Approval of a Plan of Work for Exploration, ISBA/14/LTC/L.3, 21 April 2008. 3 See ISA Legal and Technical Commission, Note from the Secretariat on the Application for approval of plans of work for exploration by Nauru Ocean Resources Inc. and Tonga Offshore Mining Ltd., ISBA/15/LTC/6, 11 May 2009. 4 Delegation of Nauru, Proposal to seek an advisory opinion from the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on matters regarding sponsoring States responsibility and liability, ISBA/16/C/6, 5 March 2010 (Nauru Proposal). 5

Available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_0102 11.pdf (accessed on 24 February 2012).

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first time the Chamber had been called upon, it was also the first time that ITLOS has issued a unanimous ruling.6 This article examines the issue of State responsibility for seabed mining in the Area with particular reference to the Chamber’s Advisory Opinion. To situate the significance of both the request and the Advisory Opinion, the article begins with a description of seabed mining and its potential impacts on the marine environment. It then discusses the legal regime applicable to seabed mining activities in the Area and the background to the request for the Advisory Opinion before turning to a discussion of the Opinion itself. It concludes with some observations as to the possible future of State responsibility for seabed mining in the Area and the broader implications of the Chamber’s historic Opinion.

II. Seabed Minerals and Their Exploitation Exploitation of seabed resources is not new. Metals, such as gold and tin, and nonmetals, such as diamonds, have been mined at offshore sites for decades. Oil and gas have similarly been exploited offshore for many years in both shallow and increasingly deeper areas. While global economic conditions have not yet favoured commercial exploitation of other seabed mineral resources, since the 1960s they have been the focus of increasing commercial interest in both areas under national jurisdiction and in areas beyond national jurisdiction. With respect to the former, deep sea mining tenements have been granted or are under application in the territorial sea and exclusive economic zones (EEZs) of Papua New Guinea (PNG), Tonga, Solomon Islands, Fiji and New Zealand.7 With respect to the latter, interest has also been growing in mining operations in sites which fall within the mandate of the ISA over 6 In truth, there were as many as five ‘firsts’. At the opening of the oral hearings the President of the Chamber called the case a ‘double première’ since it marked the first time that the Chamber had been “seized with a case and the first time at all that a request to render an advisory opinion had been brought to the Tribunal.” He later remarked that it was also the first time that the hearings had been broadcast over the internet, see ITLOS Verbatim Record, ITLOS/PV.2010/1/Rev.1, 14 September 2010, 1, and id., ITLOS/PV.2010/2/Rev.1, 15 September 2010, 25. It was also the first time that nongovernmental organisations had had their submissions linked on the ITLOS website despite them not being part of the case file. 7 David Leary, Sustainable Management of Deep Sea Mining in the Pacific Region: Is this an Oxymoron? – A Lawyer’s Viewpoint, Proceedings of the 2nd International Seminar on Islands and Oceans (2010), 213, 213.

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the ‘Area’, defined in Article 1 (1) of the United Nations Convention on the Law of the Sea (UNCLOS)8 to mean “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” While the precise extent of the Area cannot yet be conclusively determined,9 the Area covers at least 50 % of the earth’s surface. A variety of mineral and hydrocarbon resources are found in the Area, however, current activities are focused on the exploration and eventual exploitation of its mineral resources, in particular polymetallic nodules, cobalt-rich ferromanganese crusts, and polymetallic massive sulphides. First discovered in 1868,10 polymetallic nodules, also known as manganese nodules, are small potato sized ‘rocks’ formed, somewhat like pearls, by the concretion of iron and manganese hydroxides around a small core. They are found at all depths, lying atop the sediments on the ocean floor. The highest concentrations of nodules have been found lying on the abyssal plains between 4,000 metres (m) and 6,000 m deep in three areas: the north central Pacific Ocean, the Peru Basin in the south-east Pacific Ocean and the middle of the north Indian Ocean. While the chemical composition of nodules varies, in general they contain high concentrations of manganese, iron, silicon, aluminium, nickel, copper and cobalt. In 1965, the total amount of polymetallic nodules lying on the sea floor was estimated at more than 1.5 trillion tonnes. This estimate was revised downwards to 500 billion tonnes in 1981. However, estimates of commercially exploitable ‘good nodules’, or those containing high metals concentrations, currently range from 100 to 600 million tonnes distributed between three to ten mine sites.11

8

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 397.

9

The limits of national jurisdiction in respect of the continental shelf are either 200 nautical miles from the territorial baselines or out to the limits of the outer continental shelf as determined pursuant to Art. 76 UNCLOS. The precise extent of the Area cannot be conclusively determined until determination of extended continental shelf claims in accordance with Art. 76 UNCLOS. 10 Polymetallic nodules were first discovered in the Kara Sea and their distribution throughout the world’s oceans was subsequently confirmed by the HMS Challenger expedition of 1873–1876. John Murray/A. F. Renard, Report on the Deep Sea Deposits, Bound as Section III (1891), available at: http:// www.19thcenturyscience.org/HMSC/HMSC-Reports/1891-DeepSeaDeposits/README.htm (accessed on 1 June 2011); see also Report of the Scientific Results of the Voyage of HMS Challenger during the years 1873–1876, available at: http://www.19thcenturyscience.org/HMSC/HMSC-INDEX/indexlinked.htm (accessed on 1 June 2011). 11

ISA, Polymetallic Nodules, 3, available at: http://www.isa.org.jm/files/documents/EN/Brochures/ ENG7.pdf (accessed on 1 June 2011).

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Cobalt-rich ferromanganese crusts are found on and around underwater mountain chains or seamounts and their associated ridges and plateaux. Crusts form through a process of mineral precipitation out of seawater onto a rock surface. Crustal ‘pavements’ up to 25 cm thick are found at depths between 400 and 4,000 m with the thickest and most highly concentrated crusts being found between 800 and 2,500 m. Since the 1980s, detailed sampling and mapping of just a few of the tens of thousands of seamounts that have been identified in the Pacific Ocean has revealed large deposits of high content cobalt crusts which are also important sources of other metallic and rare-earth minerals such as titanium, cerium, nickel, and zirconium. It has been estimated that up to 6.35 million km2 of ocean floor are covered by cobalt-rich crusts with the central equatorial Pacific considered to offer the “best potential for crust mining,” particularly within areas under national jurisdiction.12 Polymetallic sulphides are primarily associated with underwater volcanic activity and, in particular, with hydrothermal vents which occur at depths up to 3,700 m at the boundaries of tectonic plates where seawater seeps into the ocean crust. These chimney-like formations, also known as ‘black smokers’, spew the now super-heated mineral-rich hydrothermal fluids back into the surrounding cold sea-water, where the metal sulphides in the fluids precipitate onto the chimneys and the nearby seabed, forming massive deposits estimated to range from several thousand to about 100 million tonnes. While concentrations differ in different volcanic and tectonic settings, these massive sulphide deposits contain high concentrations of the base metals copper, lead and zinc, as well as the precious metals gold and silver. More than 300 hydrothermal vent sites have been identified on submerged volcanic ranges in the deep oceans and near the volcanic island chains bordering the Pacific Ocean. Approximately 40 % of these sites are found in the Area, the other 60 % lying in areas under national jurisdiction. One hundred of these sites are known to host polymetallic sulphide deposits.13 Since the 1960s a number of private and government-owned consortia have invested heavily in developing the technologies needed to explore, and eventually

12

ISA, Cobalt-Rich Crusts , 2, available at: http://www.isa.org.jm/files/documents/EN/Brochures/ ENG9.pdf (accessed on 1 June 2011). 13

ISA, Polymetallic Sulphides, 2, available at: http://www.isa.org.jm/files/documents/EN/Brochures/ ENG8.pdf (accessed on 1 June 2011).

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exploit, seabed minerals. Although many technological hurdles still exist,14 an increasing range of sophisticated prospecting and exploration technologies have been developed to enable acquisition of data and information about mineral occurrence and composition and the environment of the deposit in order to establish the commercial viability of eventual exploitation. In the case of polymetallic nodules, the most promising extraction system appears to be the hydraulic mining system which involves a self-propelled submersible dredge that collects the nodules and then crushes them before they are pumped to the collector vessel on the surface.15 Processing technologies tested have included various leaching and smelting technologies.16 Crust mining, although theoretically easier than nodule mining due to crust prevalence on and around seamounts at relatively shallower depths, is technically more challenging because of the attachment of crusts to underlying rock substrate. Technologies for crust mining and cost-effective separation of crust from the substrate are significantly less well developed.17 Sulphide mining, however, offers the benefits, at least in some locations, of proximity to shore, relative shallowness and exceptionally high-grade mineral content.18 At least one commercial operator, Nautilus Minerals, the commercial operator involved with NORI, has been conducting exploration and technological development activities for the extraction of polymetallic sulphides within the EEZs of PNG, Fiji and Tonga. In 2010, PNG granted the world’s first commercial mining licence to exploit polymetallic sulphides deposits within its EEZ to Nautilus Minerals. Commercial operations at the Solwara I site are expected to commence in 2013.19 While operations at the Solwara I site will not fall under the purview of the 14 See ISA Secretariat, Report on the International Seabed Authority’s workshop on polymetallic nodule mining technology: current status and challenges ahead, ISBA/14/C/7, 23 April 2008, and the information contained in the section on “Developments in ocean technology relevant to seabed mining” produced in the annual reports of the Secretary-General of the ISA submitted to the Assembly of the Authority under Art. 166 (4) UNCLOS, e.g. Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, ISBA/17/A/2, 13 June 2011, 24 et seq. 15

See ISA, Polymetallic Nodules (note 11), 6. See also G. P. Glasby, Lessons Learned from the Deep-sea Mining, Science 289 (5479) (2000) 551; N. K. Mittal/P. K. Sen, India’s First Medium-Scale Demonstration Plant for Treating Poly-Metallic Nodules, Minerals Engineering 16 (2003), 865. 16

ISA, Polymetallic Nodules (note 11), 8.

17

ISA, Cobalt-Rich Crusts (note 12), 3.

18

Porter Hogland et al., Deep-sea Mining of Seafloor Massive Sulphides, Marine Policy 34 (2010), 728, 729. 19

See company information available at: http://www.nautilusminerals.com/s/Projects-Solwara.asp (accessed on 1 September 2010).

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ISA, its success or otherwise will provide valuable lessons for future exploration and exploitation of polymetallic massive sulphides in the Area. Economic and technological hurdles aside, seabed mining also raises a number of environmental concerns. The deep seabed is home to a vast array of unusual, rarely studied ecosystems and species, and significant fears exist that mining activities may destroy species and ecosystems before they are even identified.20 Environmental risks include benthic disturbances, sediment plumes and toxic effects on the water column from leakage or discharge of slurry and tailings.21 Because of the vast spatial scales planned for nodule mining and the limited knowledge of the taxonomy, species structure, biogeography and basic natural history of deep-sea animals, nodule mining is said to represent one of the most significant conservation challenges in the deep sea.22 Crust mining, while likely to be geographically less dispersed, similarly runs the risk of perturbing the biologically complex and highly endemic ecosystems associated with seamounts, the characteristics and biological components of only a small proportion of which have yet been explored or studied.23 For its part, sulphide mining may cause significant damage to highly unique and fragile productive hydrothermal vent systems, the biodiversity of which is still largely unstudied.24 It is generally accepted that the current level of understanding of deep-sea ecology is not yet sufficient to allow conclusive risk assessment of the effects of large-scale commercial mining.25

20

Secretary-General Report 2011 (note 14), para. 66.

21

See Note from the Legal Counsel of the ISA, Summary of Available Information in the Public Domain on the Likely Impact of Exploration and Mining Activities for Nodules on the Marine Environment, 26 August 2010, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_ no_17/ISA_1.pdf (accessed on 1 June 2010); see also, e.g., ISA, Biodiversity, species range and gene flow in the abyssal Pacific nodule province: predicting and managing the impacts of deep seabed mining, ISBA/14/C/2, 14 February 2008; see also Jan Magne Markussen, Deep Seabed Mining and the Environment: Consequences, Perceptions and Regulations, in: Helge Ole Bergesen/Georg Parmann (eds.), Green Globe Yearbook of International Cooperation on Environment and Development (1994), 31; Julie Veillette et al., Ferromanganese Nodule Fauna in the Tropical North Pacific Ocean: Species Richness, Faunal Cover and Spatial Distribution, Deep-Sea Research I 54 (2007), 1912; Jochen Halfar/ Rodney M. Fujita, Danger of Deep-Sea Mining, Science 316 (2007), 987. 22 Adrian G. Glover/Craig R. Smith, The deep-sea floor ecosystem: current status and prospects of anthropogenic change by the year 2025, Environmental Conservation 30 (3) (2003), 219. 23

ISA, Cobalt-Rich Crusts (note 12), 3.

24

ISA, Polymetallic Sulphides (note 13), 4.

25

Secretary-General Report 2011 (note 14), para. 68.

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III. The Legal Regime Governing Activities in the Area The legal regime governing activities in the Area is set out in Part XI and Annexes III and IV of the UNCLOS and in the 1994 Agreement relating to the Implementation of Part XI26 (the IA). Articles 156 and 157 of the UNCLOS provide for the establishment of the ISA as an autonomous body to organise and control activities in the Area with the specific aim of managing its resources on behalf of mankind as a whole. ‘Activities in the Area’ are defined in Article 1 (3) of the UNCLOS as encompassing “all activities of exploration for and exploitation of, the resources of the Area.” The resources to which the ISA’s mandate applies are all “solid, liquid or gaseous resources in situ in the Area at or beneath the seabed, including polymetallic nodules.” The key principles on which the regime is based are set out in Articles 136–149 of the UNCLOS. Article 136 declares the Area and its resources to be the common heritage of mankind. Article 137 prohibits all claims or exercises of sovereignty or sovereign rights over the Area and its resources and stipulates that all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the ISA acts. All exploration and exploitation activities in the Area are to be carried out for the benefit of mankind as a whole, taking into particular consideration the interests and needs of developing States and non-independent or autonomous peoples.27 Exploration and exploitation is based on a scheme known as the ‘parallel system’. Pursuant to Article 153 of the UNCLOS, activities in the Area may be carried out simultaneously by the Enterprise, the proposed commercial arm of the ISA,28 or, in association with the ISA, by States parties or State enterprises or natural or juridical persons which must be either nationals of a State party or effectively controlled by its nationals and must be sponsored by that State.29 Any of these entities, or groups thereof, may apply to the ISA for approval of plans of work for exploration in the Area as long as they meet the requirements, including the requisite financial and technical capabilities and sponsorship, as provided for in Part XI and Annex III of the 26

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 12 December 1982, 28 July 1994, UNTS 1836, 3. 27

Art. 140 UNCLOS.

28

The Enterprise will come into existence when mining becomes feasible on a commercial scale. Pending its establishment the Secretariat of the ISA carries out its functions. Annex, Sec. 2 (1) IA. 29

Annex III, Art. 3 UNCLOS.

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UNCLOS and in the IA.30 The approved plan of work takes the form of a contract between the Authority and the contractor.31 It is the Authority’s duty to exercise such control over activities in the Area as is necessary for securing compliance with the relevant provisions of Part XI and Annex III of the UNCLOS and the IA, as well as the rules, regulations and procedures of the Authority.32 In 2000 the ISA adopted its Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area (Nodule Regulations).33 The Regulations elaborate on the basic conditions of prospecting, exploration and exploitation set out in Annex III of the UNCLOS and set out detailed requirements regarding the application process including the content of the plan of work, the form of the application, the procedure for its consideration and approval, the form and content of the contract for exploration, requirements regarding confidentiality of data and information, dispute settlement and the procedures to be followed should the prospector or contractor locate resources other than polymetallic nodules in the area allocated to it. Similar Regulations on Prospecting and Exploration for Polymetallic Sulphides were adopted in 2010 (Sulphides Regulations)34 and it is expected that the draft regulations on prospecting and exploration for cobalt-rich ferromanganese crusts will be adopted in 2012.35 An important component of the parallel system, designed to give substance to the explicit promotion of effective participation and special consideration of developing, land-locked and geographically disadvantaged States in the exploration and exploitation of minerals in the Area36 is the requirement for applicants to set aside part of the proposed site as a ‘reserved area’ for future exploration and exploitation by the ISA in association with developing States.37 A developing State, or an entity sponsored by such a State, may notify the Authority that it wishes to submit a plan of work with 30

Art. 153 (2)(b) and Annex III, Art. 3 UNCLOS.

31

Arts. 153 (3), 153 (6) and Annex III, Art. 3 (5) UNCLOS.

32

Art. 153 (4) UNCLOS.

33

Available at: http://www.isa.org.jm/files/documents/EN/Regs/PN-en.pdf (accessed on 1 June 2010). 34

Available at: http://www.isa.org.jm/files/documents/EN/Regs/PolymetallicSulphides.pdf (accessed on 15 September 2010). 35

ISA, Statement of the President of the Council of the International Seabed Authority on the work of the Council during the Seventeenth Session, ISBA/17/C/21, 21 July 2011, para. 7. 36

As required by Art. 148 UNCLOS.

37

Annex III, Art. 8 UNCLOS.

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respect to a reserved area. The Enterprise is then required to decide within six months whether it wishes to use the area concerned. The Enterprise has not yet begun to function independently of the secretariat, which currently performs the functions of the Enterprise. If the Enterprise does wish to use the area then, until such time as it begins to function independently of the secretariat, it may do so only through a jointventure operation. If it decides not to use the reserved area, the prospective applicant can submit its application for approval of a plan of work in the reserved area.38 Another important component of the regime is the requirement to protect and preserve the marine environment, one of the core purposes of the UNCLOS.39 All States are under an obligation to protect and preserve the marine environment and to take all measures necessary to ensure that activities under their jurisdiction or control do not cause damage to the marine environment of other States or to areas beyond national jurisdiction.40 With specific reference to seabed mining activities, Articles 145 and 209 of the UNCLOS require necessary measures to be taken to ensure the protection of the marine environment from the harmful effects that may arise from these activities. The ISA has the responsibility to establish international rules, regulations and procedures to prevent, reduce and control pollution of the marine environment, to protect and conserve the natural resources of the Area and to prevent damage to the flora and fauna of the marine environment. States have the corresponding obligation to adopt laws and regulations, of at least equal efficacy, to prevent, reduce and control pollution from activities in the Area undertaken by vessels, installations, structures and other devices flying their flag, or of their registry, or operating under their authority. The rules and regulations adopted by the ISA are contained in Part V of both the Nodules and the Sulphides Regulations which deal with protection and preservation of the marine environment, including the procedure for the application of emergency orders for the suspension or adjustment of operations to prevent serious harm to the marine environment arising out of activities in the Area.41 Pursuant to these regulations the ISA maintains a periodic review of environmental rules, regulations and procedures to ensure effective protection of the marine environment from harmful 38

Annex, Sec. 2 (2) IA; Annex III, Art. 9 UNCLOS.

39

Recital 4 Preamble UNCLOS.

40

Arts. 192, 194 UNCLOS.

41

As per Art. 162 (2)(w) UNCLOS.

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469

effects which may arise from activities in the Area. The regulations impose a duty on each contractor to take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it. In addition, the regulations require that environmental impact assessments and baseline studies are to be provided with each application submitted for approval. Every contract subsequently entered into by the ISA must then require contractors to gather environmental baseline data and to establish environmental baselines against which to assess the likely effects of their activities on the marine environment. Contractors are also obliged to monitor and report any adverse effects, to establish monitoring programmes and to report annually on the results of these programmes. In 2001 the ISA adopted recommendations to guide contractors in carrying out environmental impact assessments, acquiring baseline data on existing environmental conditions and monitoring potentially harmful seabed activities.42 It is currently discussing the adoption of an environmental management plan for the Clarion-Clipperton Zone.43 As of 2010 the Authority had entered into contracts for exploration of polymetallic nodules in the Area with eight entities.44 In 2011 the ISA approved four new exploration contracts in the Area.45 Two of the new contracts relate to exploration for polymetallic sulphides.46 The remaining two are the resubmitted applications by NORI and TOML and involve the first ever contracts for exploration for polymetallic nodules in reserved areas, in this case areas within the Clarion-Clipperton Zone in the Pacific Ocean.

42 ISA Legal and Technical Commission, Recommendations for the guidance of the contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area, ISAB/7/LTC/1/Rev.1, 13 February 2002. 43

Secretary-General Report 2011 (note 14), para. 118.

44

Yuzhmorgeologiya (Russian Federation); Interoceanmetal Joint Organisation (IOM) (Bulgaria, Cuba, Czech Republic, Poland, Russian Federation and Slovakia); the Government of the Republic of Korea; China Ocean Mineral Resources Research and Development Association (China); Deep Ocean Resources Development Ltd (Japan); Infremer (France); the Government of India; and the Federal Institute for Geosciences and Natural Resources of Germany. 45 46

Statement of the President (note 35), paras. 11, 12.

The entities involved are China Oceans Minerals Resources Research and Development Association and the Ministry of Natural Resources and the Environment of the Russian Federation.

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IV. The Request for an Advisory Opinion Given the economic, technical and environmental challenges associated with seabed mining it is perhaps not surprising that States, particularly developing States hoping to be involved in deep seabed mining through sponsorship of private commercial entities, would be concerned as to their potential liability for damage arising from mining and mining related activities. These concerns manifested themselves shortly after the submission by Nauru and Tonga of their applications for approval of plans of work by NORI and TOML in 2008. Both companies were wholly owned subsidiaries of the private commercial entity, Nautilus Minerals Inc., which, as noted above, is involved in mining activities in PNG’s waters. In the event, no consensus was reached on the applications and their consideration was deferred until 2009.47 At its meeting in 2009 the Commission was advised that the applicants had requested that consideration of their applications be postponed due to global economic conditions and what was described as uncertainty surrounding sponsoring State responsibility and liability. Further consideration of the applications was therefore deferred.48 On 5 March 2010 Nauru submitted its proposal to seek an advisory opinion from the Chamber on matters relating to sponsoring State responsibility and liability to the ISA.49 In its proposal Nauru argued that the only way in which developing States can participate effectively in activities in the Area is through engagement with private sector entities which are able to provide the necessary technical and financial resources. Nauru was concerned that developing States lacked the financial capacity to carry out seabed mining activities in the Area and that some could simply not afford exposure to the potential legal risks associated with such projects. According to Nauru its sponsorship of NORI had been premised on the assumption that Nauru could effectively mitigate these potential liabilities or costs which could, in some circumstances, far exceed its financial capacity. Ultimately, as Nauru put it, “if sponsoring States are exposed to potential significant liabilities, Nauru, as well as other developing States, may be precluded from effectively participating in activities in the 47

ISA, Summary report of the Chairman of the Legal and Technical Commission on the work of the Commission during the fourteenth session, ISBA/14/C/11, 5 June 2008, paras. 6–8. 48 Id., Summary report of the Chairman of the Legal and Technical Commission on the work of the Commission during the fifteenth session, ISBA/15/C/5, 27 May 2009, para. 6. 49

Nauru Proposal (note 4).

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Area” contrary to the principles and purposes of Part XI of the UNCLOS. As a result Nauru considered it crucial that guidance be provided on the interpretation of the relevant sections of Part XI pertaining to responsibility and liability, so that developing States can assess whether it is within their capabilities to effectively mitigate such risks and in turn make an informed decision on whether or not to participate in activities in the Area.

Nauru then set out a series of more than 50 specific questions and issues on which it sought clarification from the Chamber.50 The proposal was discussed at length by the Council of the ISA during its sixteenth session in 2010. Thirty-two delegations expressed their views on the topic. Some concerns were expressed over the procedure by which the proposal had been made, effectively by-passing discussion in the Legal and Technical Commission. In addition, some States considered the request to be either premature or misguided on the basis that what was really needed was simply capacity building in developing States rather than the provision of legal advice. Some concern was also expressed that the questions, as formulated, amounted to a request by a particular State for specific legal advice and were not appropriate in the context of a request for an advisory opinion from the ISA itself. Nevertheless, most delegations supported the proposal, albeit requesting that the questions be reformulated in a more concise and clear manner.51 A revised text was prepared by the secretariat, consolidating the multiple questions posed by Nauru, and ultimately the Council decided to request an advisory opinion from the Chamber on the following three questions: 1. What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982? 2. What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1994 Agreement, 50 51

Ibid., paras. 1–5.

ISA, Summary records of meetings at which the Council discussed item 7 of its Agenda (including List of Speakers), Dossier No. 3 submitted to the Chamber on behalf of the Secretary-General of the Authority pursuant to Article 131 of the Rules of the Tribunal, 2010, available at: http://www.itlos.org/file admin/itlos/documents/cases/case_no_17/Request/English/Dossier_No_3.pdf (accessed on 1 June 2011).

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by an entity whom it has sponsored under Article 153, paragraph 2(b), of the Convention? 3. What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement?52 Written statements were submitted by twelve States (the UK, Nauru, the Republic of Korea, Romania, the Netherlands, Russia, Mexico, Germany, China, Australia, Chile and the Philippines). Statements were also submitted by the Authority, the Interoceanmetal Joint Organisation and the International Union for the Conservation of Nature (IUCN). A joint statement was filed, albeit out of time, by Greenpeace International and the World Wide Fund for Nature, who also petitioned, without success, for standing as amici curiae. The joint statement was not included in the case file but it was, nevertheless, posted on the Tribunal’s website. Also filed out of time was the statement submitted by the United Nations Environment Program which was also posted on the website. Oral proceedings took place between 14–16 September 2010 with submissions being made by the ISA, Germany, the Netherlands, Argentina, Chile, Fiji, Mexico, Nauru, the UK, Russia, the Intergovernmental Oceanographic Commission, and the IUCN.

V. The Advisory Opinion The Chamber adopted its unanimous Opinion on 1 February 2011. As this was the first invocation of the Chamber’s jurisdiction it was careful to deal with the questions of jurisdiction, admissibility, applicable law and the rules of interpretation. With respect to jurisdiction, the Chamber was satisfied that the request for the Advisory Opinion had been properly made, that the request concerned questions of a legal nature, and that the questions had arisen within the scope of the activities of the ISA as required by Article 191 of the UNCLOS. On the question of admissibility, in their submissions some States had referred to the difference between Article 191 of the UNCLOS, which states that the Chamber “shall give” an advisory opinion, and Article 65 (1) of the 52 Id., Decision of the Council of the International Seabed Authority requesting an advisory opinion pursuant to Article 191 of the United Nations Convention on the Law of the Sea, ISBA/16/C/13, 6 May 2010.

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Statute of the International Court of Justice53 (ICJ) which states that the Court “may give” an advisory opinion. The Chamber took note of the difference but felt it unnecessary to comment further on it. As provided for in Article 293 (1) of the UNCLOS the applicable law was identified as the UNCLOS, the IA and any other rules of international law not incompatible with the UNCLOS. On the question of interpretation, in addition to noting the applicability of the general rules on treaty interpretation, the Chamber found it necessary to comment on the meaning of the terms ‘legal responsibilities and obligations’ and ‘liability’. The former, it decided, referred to the primary obligations incumbent on States under the UNCLOS; the latter to the consequences of a breach of the sponsoring States’ obligations.54 While there may be issues of interest relating to the Chamber’s decisions on these preliminary matters and on this terminological interpretation by the Chamber, it is the Chamber’s answers to the substantive questions on which the following discussion focuses.

A. The Legal Responsibilities and Obligations of Sponsoring States

At the heart of Nauru’s original proposal to request an advisory opinion was its suggestion that the responsibilities of developing States for damage arising from seabed mining operations which they sponsor should be conditioned and limited because of their status as a developing country. This controversial assertion raised the spectre of a two-tiered system of differentiated State responsibility whereby developing States would be absolved from responsibility and liability for breaches of their international obligations in respect of seabed mining. In its oral submissions, rather than directly reassert this controversial proposition, Nauru instead painted what the UK politely described as “a very broad, impressionistic picture of the economic, social and environmental considerations facing deep seabed mining in the overall perspective,”55 arguing that the concern for the marine environment was misplaced. According to Nauru, the concerns of the international community should more appropriately be placed on restoring the New International Economic Order ideals of Part XI of the UNCLOS by adopting an interpretation of developing sponsoring State responsibilities which would encourage private investment to protect and promote the development rights 53

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute).

54

ITLOS, Advisory Opinion (note 5), paras. 69–70.

55

ITLOS Verbatim Record, 16 September 2010, ITLOS/PV.2010/3/Rev.1, 38.

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and aspirations of those developing sponsoring States. In calling for an interpretation that would best ensure commercial viability, Nauru went so far as to say that “because [deep seabed] mining did not eventuate in the late 1970s, it is likely that millions of people have died in the past 30 years from deaths that could have been prevented had such mining been encouraged and taken place.”56 In Nauru’s words it was “not seeking to diminish responsibility” but merely to ensure that a State could “fulfil its obligations under the Convention to the highest degree.”57 Implicit in their submissions was the belief that this meant placing very few, if any, obligations on the State. The notion of differentiated State responsibilities arises from the frequent articulation in international instruments of the need to take into account the special interests and needs of developing States and is reflected in the principle of common but differentiated responsibilities which, as articulated in Principle 7 of the Rio Declaration, provides, that “in view of the different contributions to global environmental degradation, states have common but differentiated responsibilities.”58 However, both the content and application of the principle are controversial. On the one hand, some consider the principle to be based on differences in levels of economic development. On the other, some consider that the principle is based on differing contributions to global environmental degradation rather than on different levels of development.59 On this interpretation similar levels of contribution to environmental degradation will attract the same responsibilities and liabilities. Fundamentally, Nauru was arguing for the former interpretation while all the other States who made submissions to the Chamber argued in favour of the latter. In its landmark decision the Chamber rejected the idea of a two-tiered model of responsibility and liability based solely on the economic development status of States. While a number of provisions of the UNCLOS were “designed to ensure the participation of developing States in activities in the Area and to take into particular consideration their interests and needs,” there was “no general clause for the consider56

Id., 14 September 2010, ITLOS/PV.2010/1/Rev.1, 30.

57

Ibid., 14.

58

Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc. A/CONF.151/26 (vol. I), Annex. 59 International Law Association, First Report of the Committee on the Legal Principles relating to Climate Change (2010), 11, available at: http://www.ila-hq.org/en/committees/index.cfm/cid/1029 (accessed on 1 September 2010).

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ation of such interests and needs beyond what is provided for in” those specific provisions, none of which indicated the existence of any preferential status for sponsoring States that are developing States.60 Thus, “the general provisions concerning the responsibilities and liability of the sponsoring State apply equally to all sponsoring States, whether developing or developed.”61 In endorsing the application of equality of treatment between developing and developed sponsoring States the Chamber explicitly recognised the need to avoid the possibility of ‘sponsoring States of convenience’, where commercial enterprises based in developed States might set up companies in developing States to seek their sponsorship for the purpose of avoiding more burdensome regulations and controls imposed by developed States.62 The propensity of private entities to engage in this type of avoidance behaviour has been well documented in the context of shipping and high seas fisheries where the existence of ‘flags of convenience’ or ‘flags of non-compliance’ has contributed to the intractable problems of substandard shipping and illegal, unreported and unregulated fishing. The emergence of flags of convenience and flags of non-compliance has been made possible by the lack of universal articulation and acceptance of the precise content of flag State responsibilities binding globally on all States.63 In the seabed mining context, however, the obligations with which sponsoring States and private contractors are to comply while conducting activities in the Area are articulated, for all sponsoring States, in the UNCLOS and elucidated through the regulations, rules and procedures adopted by the Authority. The purpose of the sponsorship requirement is to ensure that these international obligations, which as a matter of treaty law are only binding on States, are also binding on and complied with by private contractors as a result of their implementation in the domestic law of the sponsoring State. In this way the role of the sponsoring State “contributes to the realisation of the common interest of all States in the proper application of the 60

ITLOS, Advisory Opinion (note 5), paras. 151–159.

61

Ibid., para. 158.

62

Ibid., para. 159.

63

See, eg., Rosemary Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004), and id. The Anthropocene, Autopoiesis and the Disingenuousness of the Genuine Link: Addressing Enforcement Gaps in the Legal Regime for Areas Beyond National Jurisdiction, in: A. G. Oude Elferink/E. J. Molenaar (eds.), The Legal Regime of Areas beyond National Jurisdiction: Current Principles and Frameworks and Future Directions (2010), 165–190; id., Non-Flag State Enforcement and Protection of the Marine Environment: Responding to IUU Fishing, in: M. H. Nordquist/T. B. Koh/J. Norton-Moore (eds.), Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (2009), 573–600.

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principle of the common heritage of mankind.”64 As the Chamber noted, there is nothing in the UNCLOS that imposes an obligation to sponsor.65 However, if a State does decide to sponsor, consistent with the fundamental rules on State responsibility, it will be bound by the same obligations as every other sponsoring State. Taking into account the special interests and needs of developing States does not mean absolving them of responsibility for breaches of their international obligations, although it might condition the specific content of those obligations.66 In terms of the content of the responsibilities and obligations incumbent on sponsoring States the UNCLOS is relatively clear. States parties have the responsibility to ensure that activities in the Area, whether carried out by themselves or by State enterprises or private contractors owned or effectively controlled by them or their nationals, are carried out in conformity with Part XI of the UNCLOS.67 States parties must also assist the Authority by taking all measures necessary to ensure compliance.68 To this end States have the responsibility to ensure, within their legal systems, that sponsored contractors carry out activities in the Area in conformity with the terms of their contract with the Authority. States must also uphold their obligations under the Convention to take administrative measures which are, within the framework of their legal system, reasonably appropriate for securing compliance.69 Applications by State enterprises or other entities are to be accompanied by a certificate of sponsorship in which the sponsoring State declares that it accepts responsibility for damage caused by its failure to comply with its obligations under the UNCLOS and the IA.70 Central to the issue of the content of sponsoring State responsibilities was the meaning of ‘responsibility to ensure’, in particular, whether this involves an obligation of result or one of conduct. While the IUCN and Mexico proposed a standard of strict liability, the oral and written submissions of the majority of States made clear their belief that this involves an obligation of due diligence only. As articulated by the

64

ITLOS, Advisory Opinion (note 5), paras. 75–76.

65

Ibid., para. 78.

66

Ibid., para. 160.

67

Art. 139 (1) UNCLOS.

68

Art. 153 (4) UNCLOS.

69

Arts. 139, 153 (4), and Annex III, Art. 4 (4) UNCLOS.

70

Regulation 11 (3)(f) Nodule/Sulphides Regulations.

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International Court of Justice in the Pulp Mills Case, an obligation to act with due diligence is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by the such operators.71

The Chamber accepted that a sponsoring State could not be expected to guarantee a particular result. Rather, it had “an obligation to deploy adequate means, to exercise best possible efforts and, to do the utmost, to obtain this result.”72 As suggested in the submissions of the ISA and others, the Chamber considered due diligence to be a variable concept, meaning that the required measures may change over time in light, for example, of new scientific or technical knowledge, and that different measures may be required depending on the level of risk and the nature of the minerals involved.73 Key was that the measures must be taken within a State’s legal system and that the measures must be appropriate.74 What might constitute appropriate measures was addressed by the Chamber in its response to Question 3. Beyond the due diligence ‘obligation to ensure’, the Chamber went on to articulate a range of ‘direct obligations’ incumbent on sponsoring States the fulfilment of which would also be relevant to meeting their due diligence obligation. The first of these, the obligation to assist the Authority in the exercise of control over activities in the Area, is clearly articulated in Article 153 (4) of the UNCLOS. In discussing this obligation the Chamber needed only to confirm that this obligation requires the taking of all measures necessary to ensure compliance with the State’s own due diligence obligation.75 The Chamber then identified the direct legal obligation, embodied in the Nodules and the Sulphides Regulations, to apply the precautionary approach, as reflected in Principle 15 of the Rio Declaration, in order to ensure effective protection of the marine environment from activities in the Area. As formulated in Principle 15, the precautionary approach, which is to be “widely applied by States according to their 71

ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, available at: http://www.icj-cij.org/docket/files/135/15877.pdf (accessed on 10 December 2011), para. 197. 72

ITLOS, Advisory Opinion (note 5), para. 110.

73

Ibid., para. 117.

74

Ibid., para. 120.

75

Ibid., para. 124.

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capabilities,” requires that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.” Express articulation of the requirement to apply the precautionary approach in the Regulations transformed the “non-binding statement of the precautionary approach in the Rio Declaration into a binding obligation.”76 However, the Chamber went further. Reflecting on the implicit link between due diligence and the precautionary approach taken by ITLOS in the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan)77 and the developing status of the approach in customary international law as reinforced by the ICJ judgment in the Pulp Mills Case, the Chamber considered that the precautionary approach was also “an integral part of the general obligation of due diligence of sponsoring States which is applicable even outside the scope of the Regulations,” and which requires action where scientific evidence is insufficient but “there are plausible indications of potential risks.”78 Consistent with Principle 15, such action would, however, be contingent on the different capabilities of each State.79 Other direct obligations identified by the Chamber included the obligation to apply best environmental practices, the obligation to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment, the obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution, and the obligation to conduct environmental impact assessments. In commenting on these obligations the Chamber appears to have accepted the views of a number of States and the ISA that their content should be interpreted in a progressive, intertemporal manner. For example, the requirement to apply ‘best environmental practices’ is found in the Sulphides Regulations and in the standard clauses for exploration contracts of the Sulphides Regulations whereas the Nodules Regulations and their standard clauses refer only to the ‘best technology’ available to the contractor. The Chamber considered that the adoption of the higher standard in the Sulphides Regulations indicated acceptance by States, in light of scientific advancements, of the need for the more stringent measures as an aspect of 76

Ibid., para. 126.

77

Id., Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 274, paras. 77–80. 78

Id., Advisory Opinion (note 5), paras. 131–135.

79

Ibid., para. 129.

DIFFERENTIATING THE COMMON?

479

their obligation of due diligence.80 In other words, as time marches on the content of the obligation of due diligence may change. The notion of progressively developing obligations is, perhaps, best exemplified in the obligation to conduct environmental impact assessments (EIA). While it is recognised that EIA requirements do exist in respect of some specific activities, the existence of a general obligation to conduct EIA in respect of all activities in areas beyond national jurisdiction has been the subject of considerable discussion in recent years.81 The issue is currently under consideration in the ad hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction82 and is under consideration in other fora including the Convention on Biological Diversity.83 With respect to activities in the Area, however, this is a direct obligation under Article 206 of the UNCLOS and Section 1 (7) of the Annex to the IA, the specific content of which is elaborated on in the Nodules and Sulphides Regulations and the 2002 Recommendations.84 In the Pulp Mills Case the ICJ considered the requirement to conduct an EIA where there is a risk that the proposed activity may have a significant transboundary impact, particularly on a shared resource, to have attained the status of customary international law.85 The terminology of ‘transboundary’ is usually used in the context of areas under the jurisdiction of one or more States. However, in an interesting extension of the ICJ reasoning, the Chamber considered it to be apposite to activities in areas beyond national jurisdiction as well, particularly where, by virtue of the common heritage status of seabed resources, these resources are shared by the entire international community. The requirement to conduct EIA in respect of activities in 80

Ibid., para. 136.

81

Robin Warner, Protecting the Oceans beyond National Jurisdiction: Strengthening their International Law Framework (2009), 51. See also Alex G. Oude Elferink, Environmental Impact Assessment in Areas Beyond National Jurisdiction, Report for the symposium Biological Diversity and Governance of Areas beyond National Jurisdiction, organised by the Netherlands Institute for the Law of the Sea of Utrecht University and the Netherlands Ministry of Economic Affairs, Agriculture and Innovation (EL&I), 8 July 2011 (copy on file with author). 82 The documents of the working group are available at: http://www.un.org/depts/los/biodiversity workinggroup/biodiversityworkinggroup.htm (accessed on 11 December 2011). 83

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79.

84

Reg. 31 (6) Nodules Regulations; Reg. 33 (6) Sulphides Regulations; Environmental Impact Assessment Recommendations (note 42), paras. 10 (a)–(c). 85

ICJ, Pulp Mills Case (note 71), para. 204.

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the Area was therefore also binding as a matter of customary international law. While the precise scope and content of the requirement is not articulated by customary international law, in the Chamber’s opinion this was provided by the Nodules and Sulphides Regulations and the 2002 Recommendations.86 Although Nauru’s submissions with respect to a diminished level of responsibility for developing States were not accepted, there was one aspect of Nauru’s submissions which did meet with some success. In the course of its oral submissions Nauru argued in favour of a restrictive definition of ‘activities in the Area’ and, in particular the definition of ‘transportation systems’, referred to in the definitions of exploration and exploitation in the Regulations to exclude service and transport vessels.87 In noting inconsistencies between the scope of ‘exploration’ and ‘exploitation’ in the Regulations and ‘activities in the Area’ in the UNCLOS, the Chamber concluded that ‘activities in the Area’ includes drilling, dredging, coring, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities as well as shipboard processing immediately above a mine site, including evacuation of water from the minerals and extraction and disposal of noncommercial materials. Also included is transportation within the high seas which is directly connected with extraction and lifting. However, transportation from the high seas to points on land and processing on land are not ‘activities in the Area’.88 As Freestone notes, “the significance of this esoteric distinction should not be underestimated for it does limit the applicability of the ruling”89 and, hence, the responsibilities and liabilities of States. Also limiting is the exclusion of ‘prospecting’ from the definition of ‘activities in the Area’ in Article 1 (1) of the UNCLOS although it is included in Annex III, Article 2 of the UNCLOS, the Nodules Regulations and the Sulphides Regulations. The Chamber took note of this omission and “considered it appropriate to observe that some aspects of the present Advisory Opinion may also apply to prospecting.”90 86

ITLOS, Advisory Opinion (note 5), paras. 141–150,

87

ITLOS Verbatim Record, 16 September 2010, ITLOS/PV.2010/3/Rev.1, 18–20.

88

Id., Advisory Opinion (note 5), paras. 85–96.

89

David Freestone, Advisory Opinion of the Seabed Disputes Chamber of International Tribunal for the Law of the Sea on “Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area,” ASIL Insights 15 (7) (2011), available at: http://www.asil.org/ insights110309.cfm (accessed on 11 December 2011). 90

ITLOS, Advisory Opinion (note 5), para. 98.

DIFFERENTIATING THE COMMON?

481

B. The Extent of State Liability for Failure by Sponsored Entity to Comply with its Obligations

Under the general customary rules on State responsibility a State is responsible, and therefore liable to make reparation, for any breach of its own obligations, regardless of fault or damage.91 This general rule is slightly modified in the context of activities in the Area by Article 139 (2) of the UNCLOS, the first sentence of which provides: Without prejudice to the rules of international law and Annex III, Article 22, damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability.

The responsibilities referred to here relate to the deep seabed mining regime and include both the direct obligations identified in the answers to Question 1 as well as obligations in relation to the activities carried out by sponsored contractors. Consistent with the general rules on State responsibility the Chamber noted that “the sponsoring State’s liability arises not from a failure of a private entity but rather from its own failure to carry out its own responsibilities.”92 However, it went on to note that, on a plain reading of the sentence, liability will only arise in cases of actual damage and where there is a causal connection between the sponsoring State’s failure and the damage caused by the sponsored contractor.93 The requirement of actual damage constitutes an exception to the general customary rule.94 This was not to suggest that no responsibility exists for a failure to meet due diligence obligations not occasioning harm. The requirement of damage in the allocation of liability is stated as being without prejudice to the rules of international law which include the general rules on State responsibility. Although it did not elaborate on the point the Chamber noted that the “failure by a sponsoring State to meet its obligations not resulting in material damage is covered by customary international law which does not make damage a requirement for the liability of States.” In other words, the Chamber appears to have

91

International Law Commission (ILC), Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 34–36, Article 2 and Commentary, paras. 9–10. 92

ITLOS, Advisory Opinion (note 5), para. 182.

93

Ibid., paras. 181–182.

94

Ibid., paras. 178, 184.

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accepted that State responsibility will arise in both situations (i.e., damage or no damage). The difference, however, will lie in the form and quantum of reparation.95 In considering what might constitute damage giving rise to liability, the Chamber noted the absence of guidance in the UNCLOS or the Regulations and opined that it “would include damage to the Area and its resources constituting the common heritage of mankind, and damage to the marine environment.”96 Assuming such damage occurred, the Chamber then considered which States or entities would be entitled to make a claim. The general rules on State responsibility are built around the notion of the ‘injured State’. This includes a State to whom the obligation breached is owed or a group of States including that State, or the international community as a whole, where the breach specifically affects that State or radically alters the position of all the other States in respect of the obligation’s future performance.97 States other than an injured State are also entitled to claim where the obligation is owed to a group of States including that State and is established for the protection of a collective interest of that group or the obligation breached is owed to the international community as a whole.98 In identifying the range of international subjects entitled to claim compensation in respect of a failure of due diligence occasioning damage, the Chamber suggested that this “may include the Authority, entities engaged in deep seabed mining, other users of the sea, and coastal States.”99 Standing of the Authority, while not provided for explicitly in the UNCLOS or the Regulations, could be implied from its obligation to act ‘on behalf’ of mankind. States parties might also be entitled to claim “in light of the erga omnes character of the obligations relating to the preservation of the environment of the high seas and in the Area.”100 In addition to the exemption from liability in the absence of damage, the second sentence of Article 139 (2) of the UNCLOS provides a general exemption from liability in the case of damage in the following terms:

95

Articles on State Responsibility (note 91), 91–94, Commentary to Article 31, para. 7.

96

ITLOS, Advisory Opinion (note 5), para. 179.

97

Art. 42 Articles on State Responsibility.

98

Art. 48 Articles on State Responsibility.

99

ITLOS, Advisory Opinion (note 5), para. 179.

100

Ibid., para. 180.

DIFFERENTIATING THE COMMON?

483

A State Party shall not however be liable for damage caused by any failure to comply with this Part by a person whom it has sponsored under article 153, paragraph 2(b), if the State Party has taken all necessary and appropriate measures to secure effective compliance under article 153, paragraph 4, and Annex III, article 4, paragraph 4.

The pertinent part of Annex III, Article 4 (4) reads: A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.

These provisions are reflective of the general rules on State responsibility by which a State is not responsible for the acts of private entities unless those acts are attributable to the State in some way.101 As such, the exemption does not apply to breaches of the direct obligations of sponsoring States, but only to breaches of their due diligence obligations. At the core of Nauru’s submissions was the proposition that sponsoring States should bear no liability whatsoever for damage caused by the operations of sponsored contractors. According to Nauru, the phrase “within the framework of its legal system” imported a fully subjective element into the consideration of what might constitute appropriate measures. This was rejected by the Chamber which considered that Annex III, Article 4 (4) “does not give States unlimited discretionary powers concerning the measures to be taken in order to avoid liability.”102 At the other end of the spectrum the Chamber also rejected the suggestions of the IUCN and Mexico that a regime of strict liability applied to make the State liable regardless of fault as being inconsistent with the due diligence nature of the State’s obligations.103 However, it did not rule out the possible development of such a regime noting that as activities in the Area move from the exploration phase to the more demanding and potentially environmentally damaging exploitation phase the Authority might strengthen the liability regime in future regulations on exploitation.104 For present purposes it was important 101 Art. 8 Articles on State Responsibility: In respect of conduct of a private person or entity, attribution requires that the person or entity “is in fact acting on the instructions of, or under the direction and control of, that state in carrying out” the acts in question. 102

ITLOS, Advisory Opinion (note 5), para. 187.

103

Ibid., para. 189.

104

Ibid., para. 168.

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to distinguish between the responsibility of the State and that of the contractor. A contractor’s responsibility is to comply with the provisions of the Convention and the terms of its contract with the Authority, whereas the responsibility of the sponsoring State is to ensure compliance by contractors including through adopting laws and taking administrative measures which are reasonably appropriate for securing compliance by persons under their jurisdiction. As long as the State had complied with its own obligations it would not be liable. Where it had failed to do so, it would not be exempt from liability for damage caused by the sponsored contractor.105 It is clear that this interpretation of Article 139 (2) leaves what was referred to as a ‘liability gap’ in three situations: where both the State and the contractor have complied with their obligations but environmental harm nevertheless occurs; where the State complies with its obligations but the operator does not and the operator is insolvent or its assets are spirited away out of the reach of the sponsoring State; and where the State has failed to take the necessary measures but there is no causal connection with the environmental harm.106 To fill these gaps the IUCN and some States argued in favour of a residual liability on the part of sponsoring States basing their argument on Principle 4 (2) of the ILCs Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities.107 This principle starts from the premise of contractor liability but goes on to require sponsoring States to ensure that additional financial resources are made available where the contractor’s resources are insufficient. Others pointed out that these draft Principles are not reflective of accepted customary international law but are intended merely to contribute to its progressive development. To date the international community has preferred to rely on the establishment of civil liability regimes whereby industry wide funds are established to provide compensation in the event of a contractor’s inability to pay. The Chamber rejected the notion of residual liability but it 105

Ibid., para. 189.

106

See the Written Statement of the IUCN Commission on Environmental Law, Oceans, Coastal and Coral Reefs Specialist Group, 19 August 2010, particularly paras. 86, 97, 139, available at: http:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/StatementIUCN.pdf (accessed on 1 June 2011), Written Statement of Mexico, 17 August 2010, particularly paras. 69–111, available at: http:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/Statement_Mexico.pdf, (accessed on 1 June 2011); and oral submissions of IUCN, ITLOS Verbatim Record, 16 September 2010, ITLOS/PV.2010/ 4/Rev.1, particularly 18, 28–32. 107

ILC, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, GAOR, 61st Sess., Suppl. 10, 111, General Commentary, para. 5.

DIFFERENTIATING THE COMMON?

485

did opine that “the Authority may wish to consider the establishment of a trust fund to compensate for damage not covered.”108

C. The Necessary and Appropriate Measures to be Taken by Sponsoring States

A particularly controversial aspect of Nauru’s submission was its argument that a sponsoring State could be considered to have complied with its obligations simply by entering into a contractual arrangement with the private contractor. In its written submission Nauru had argued that, for some States, enacting the requisite legislation would be impractical, unfeasible and a costly waste of limited government resources.109 This proposition was heavily contested in the other submissions made to the Chamber which, like the Philippines, considered it ‘a given’ that the contractual approach would not suffice.110 The Netherlands, for example, pointed out the jurisdictional problems that would arise from such an arrangement and that the complexity of negotiating such a contract required no lesser level of legal expertise than that of setting up a public regulatory regime to ensure fulfilment of the obligation of due diligence.111 The UK and Germany barely stopped short of calling Nauru’s concerns as to the cost and feasibility of such a legislative programme specious.112 The notion of a State contracting out of its international obligations has been witnessed in recent years in the phenomenon of private military contractors hired by States to carry out functions traditionally associated with military activities for which the State would normally have been responsible.113 Although controversial, the practice has been made possible by creative interpretations of vague customary rules. 108

ITLOS, Advisory Opinion (note 5), para. 205.

109

Nauru, Written Submission, 5 August 2010, 5, para. 26, available at: http://www.itlos.org/ fileadmin/itlos/documents/cases/case_no_17/Statement_Nauru.pdf (accessed on 1 June 2011). 110

Philippines, Written Submission, 19 August 2010, 3, available at: http://www.itlos.org/fileadmin/ itlos/documents/cases/case_no_17/Statement_Philippines.pdf (accessed on 1 June 2011). 111

ITLOS Verbatim Record, 15 September 2010, ITLOS/PV.2010/2/Rev.1, 12.

112

ITLOS Verbatim Record, 16 September 2010, ITLOS/PV.2010/3/Rev.1, 38 and 47 and United Kingdom, Written Submission, 29 July 2010, para. 3.6, available at: http://www.itlos.org/fileadmin/ itlos/documents/cases/case_no_17/Statement_UK.pdf (accessed on 1 June 2011); ITLOS Verbatim Record, 16 September 2010, ITLOS/PV.2010/3/Rev.1, 4. 113

For an analysis of this issue see, e.g., Carsten Hoppe, Passing the Buck: State Responsibility for Private Military Companies, European Journal of International Law 19 (2008), 989.

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However, no such vagueness exists in the UNCLOS. Taken together, Articles 139 (2) and 153 (4) specifically require States to assist the Authority by taking all necessary and appropriate measures to ensure effective compliance by contractors with their obligations under Part XI. Annex III, Article 4 (4) makes clear that a State will only be relieved from liability where it has adopted “laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.” Given the specific wording of these provisions, “mere contractual obligations,” according to the Chamber, “could not serve as an effective substitute” particularly as they “would not establish legal obligations that could be invoked against the sponsoring State by entities other than the sponsored contractor.”114 Other concerns noted by the Chamber with respect to the contractual approach included its lack of transparency and that it would undermine the sponsoring State’s obligation to contribute to the common interest of all States in the proper implementation of the principle of the common heritage of mankind by assisting the Authority and by acting on its own with a view to ensuring that entities under its jurisdiction conform to the rules on deep seabed mining.115

Nevertheless, while the Chamber made clear that a legislative framework was required, it was careful not to stray into the realm of predetermining the policy choices of States as to the precise content of the measures to be adopted. Instead it provided general guidance as to what measures it considered to be ‘necessary and appropriate’ in order to ensure compliance by the contractor with its obligations and exempt the sponsoring State from liability. In terms of the scope and extent of the measures to be adopted, the Chamber noted that this will depend on the legal system of the sponsoring State. However, the measures will be expected to provide for the establishment of enforcement mechanisms for active supervision of sponsored contractors and for the coordination between the activities of the sponsoring State and those of the Authority.116 Obligations of the contractor even after the completion of the exploration phase should also be covered.117

114

ITLOS, Advisory Opinion (note 5), para. 224.

115

Ibid., paras. 225–226.

116

Ibid., para. 218.

117

Ibid., para. 221.

DIFFERENTIATING THE COMMON?

487

As for the content of the measures, this is to be determined by the State itself within the framework of its own legal system. However, this does not give the State unfettered discretion. The criteria of “reasonably appropriate” and “within the framework of its legal system” are relevant only to differentiation in the method of securing effective compliance and not to a reduction in that effectiveness. Thus the requirement that the measures be “reasonably appropriate” means the State must act in good faith in adopting measures that are reasonable, relevant, non-arbitrary and conducive to the benefit of mankind as a whole. Measures for protection of the marine environment are to be no less stringent than those adopted by the Authority and no less effective than international rules, regulations and procedures. Other measures to ensure compliance by the contractor with its obligations might concern such things as the “financial viability and technical capacity of sponsored contractors, the conditions for issuing a certificate of sponsorship and penalties for non-compliance by contractors.”118 Importantly, all obligations of the contractor must also be made enforceable. A failure to do so will be a breach of the obligation of due diligence. While the existence of these laws and measures is not a prerequisite to concluding a contract with the Authority, “it is a necessary requirement for compliance with the obligation of due diligence of the sponsoring State and for its exemption from liability.”119 In other words, a State will want to ensure that its legislation is in place before the exploration work commences.

VI. Conclusion It might be thought that the Chamber’s Opinion represents a blow to the aspirations of developing States. That this has not been the case is evidenced by the subsequent approval of the NORI and TOML applications by the Authority. Rather, the Opinion has attracted widespread support for the ‘balanced’ and useful guidance it provides on the content of State responsibilities in the seabed mining context.120 In particular, environmental lawyers have noted the Chamber’s endorsement of high standards of due diligence and its endorsement of the obligations to apply precaution, best environ118

Ibid., para. 234.

119

Ibid., para. 219.

120

See ISA Press Release, Seabed Council in First Substantive Meeting of Seventeenth Session Discusses Recent Advisory Opinion of Seabed Disputes Chamber, SB/17/5, 14 July 2011.

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mental practices and EIA.121 Of fundamental importance is the confirmation by the Chamber that developing States have the same obligations in respect of activities in the Area, including the protection of the marine environment, as developed States. Nevertheless, while the Chamber’s Opinion is firmly grounded in established rules of international law it leaves open, indeed arguably even encourages, the progressive development of a system of international standards of strict liability with respect to exploitation of seabed minerals. The catalytic effect of the Chamber’s opinion was already evident during the seventeenth session of the ISA in July 2011. Specific reference to the Advisory Opinion was incorporated into the Council’s decisions approving the NORI and TOML applications. In addition to reflecting the importance attached to the enactment of appropriate legislation as articulated in the Opinion, these references are intended to help ensure that a legal framework is in place before the actual commencement of work by the contractors. The Legal and Technical Commission also identified a number of issues arising from the Opinion which have now been incorporated into its future work programme including adjustments to the Nodules and Sulphides Regulations to bring them in line with respect to environmental practices and the protection of biodiversity as well as the future development of the precautionary approach. The Commission also recommended the preparation of model legislation to assist sponsoring States to fulfil their obligations as outlined in the Advisory Opinion and called for consideration of the creation of a trust fund to compensate for damage for which neither the contractor nor the sponsoring State was responsible.122 Both of these recommendations were endorsed by the Council.123 With the Authority now beginning to turn its mind to the development of the regulations governing commercial exploitation or seabed minerals in the Area, it remains to be seen whether the Chamber’s suggestions regarding development of a strict liability regime for exploitation activities will be taken up. 121 Freestone (note 89); see also Donald K. Anton/Robert A. Makgill/Cymie R. Payne, Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber, ANU College of Law Research Paper No. 11–06, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1793216 (accessed on 1 September 2011); Robert Mackgill, Protecting the Common Heritage of Mankind, NZLawyer, 25 February 2011, available at: http://ugent.academia.edu/RobertMakgill/Papers/449960/International_Tribunal_For_ The_Law_Of_The_Sea_Case_No._17_Protecting_the_common_heritage_of_mankind (accessed on 1 September 2011). 122

ISA, Summary report of the Chair of the Legal and Technical Commission on the work of the Commission at its seventeenth session, ISBA/17/C/13, 13 July 2011. 123

ISA, Statement of the President on the work of the Assembly of the international Seabed Authority at its seventeenth session, ISBA/17/A/10, 21 July 2001.

Genetic Testing of Embryos in vitro – Legal Considerations with Regard to the Status of Early Human Embryos in European Law RALF MÜLLER-TERPITZ(

ABSTRACT: Due to legal developments in Germany, the subsequent essay deals with the issue of genetic testing of embryos in vitro via the technique of Preimplantation Genetic Diagnosis (PGD). It starts by describing the recent diagnostic possibilities offered by this technique and reports on recent legal changes at national level in Germany regarding the admissibility of genetic testing of early embryos in vitro. The essay then analyses the relevant legal framework from a European perspective by taking into consideration the law of the Council of Europe and the law of the European Union. With respect to regional European human rights law, the essay takes a closer look at the legal treatment of PGD under the Biomedicine Convention and the European Convention on Human Rights. Regarding the legal situation in EU law, it analyses the legislative competences of the European Union in the field of reproductive medicine in general and genetic testing of embryos in particular as well as the question as to which restrictions can be derived from the Charter of Fundamental Rights and from the fundamental freedom to provide services. KEYWORDS: Biomedicine Convention, Charter of the Fundamental Rights of the European Union, Court of Justice of the European Union, European Convention on Human Rights, European Court of Justice, freedom to provide services, fundamental rights, human dignity, human embryo, Preimplantation Genetic Diagnosis, reproductive medicine, right to life, right to physical integrity

I. Introduction For many years, legal questions regarding the protection of human life at its earliest stages have been discussed on the national as well as international level. It has also become an issue for the supranational law of the European Union. In Germany, a decision of the Federal Court of Justice (Bundesgerichtshof) in 2010 has added new ( Professor of Public Law, European Law and Public International Law at the University of Passau. The author owes thanks to stud. jur. Stefan Trommler, who assisted and advised him on linguistic questions.

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impetus to this discussion. It examined criminal liability arising from Preimplantation Genetic Diagnosis (PGD), i.e. of the genetic examination of embryos in vitro, under German law.1 This judgment has led to legislative measures.2 Although the decision of the Federal Court of Justice does not refer to the relevant international or supranational law, it presents an appropriate juncture at which to reconsider the legal status of human embryos in vitro with respect to these legal regimes. This analysis will reveal that the European Court of Human Rights in Strasbourg (ECtHR) especially has already delivered a number of verdicts related to this issue. The European Union has even adopted legislation regarding the treatment of early embryos or embryonic stem cells in the context of pharmaceutical and patent law. Thus, it is unsurprising to learn that the Court of Justice of the European Union (ECJ) recently handed down a judgment concerning the patentability of human embryonic stem cells3 – an issue that also affects the extent to which EU law provides protection for human life at its beginning. This short overview demonstrates that the sensitive issue of the embryo’s legal status has become a subject for international and supranational law. Legal developments on those levels are capable of influencing legal developments on the national level. On the other hand, leading case law and legislative action on the national level may help to interpret the international and supranational law or even influence the process of law-making at those levels. For these reasons, this article examines the protection of human life in its earliest stages, focussing on international and EU law. Starting with an explanation of the technique of embryo screening prior to implantation (section II), it aims to outline the recent legal developments on the national level in Germany (section III), to analyse the international (section IV) and supranational law (section V) and will finish with some conclusions (section VI).

1

Federal Court of Justice (Bundesgerichtshof), Judgment of 6 July 2010, reprinted in: Neue Zeitschrift für Strafrecht 30 (2010), 579. 2 Act on Pre-Implantation Genetic Diagnosis (Gesetz zur Regelung der Präimplantationsdiagnostik), 21 November 2011, BGBl. I, 2228. 3 ECJ, Case C-34/10, Oliver Brüstle v. Greenpeace e. V., available via: http://curia.europa.eu/jcms/ jcms/j_6/ (accessed on 15 February 2012). This case is discussed further in Felix Machts, Legal Protection of Biotechnological Inventions – Patentability of Extraction of Precursor Cells from Human Embryonic Stem Cells (ECJ), German Yearbook of International Law (GYIL) 54 (2011), 713.

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491

II. Technique of Embryo Screening Prior to Implantation Generally, PGDs are performed in order to help couples whose potential offspring have a high risk of genetic disorder to have children unaffected by such disorder. Since the 1990s, PGD has been practised in many countries around the world, mainly in Europe (e.g. Belgium, Denmark, France, the Netherlands and the United Kingdom) and the USA.4 A PGD has a reliability rate of 99 % and therefore allows dependable prediction.5 Until recently, this genetic diagnosis was banned in Germany and is now allowed only under strict conditions.6 There are three techniques for conducting a PGD: the polar body biopsy, the blastomere biopsy and the trophoectoderm biopsy. The polar body biopsy is a method to examine the first and second polar body that takes place after the egg’s meiotic division (meiosis) for genetic or chromosomal disorders. Hence, the examination is carried out either during the still unfertilised oocyte stage after completion of the first meiotic division (first polar body) or shortly after the sperm’s penetration, but still before completion of the fertilisation process (second polar body), i.e. always at a time when an embryo within the meaning of Section 8 (1) of the German Embryo Protection Act7 does not yet exist. However, a polar body biopsy only produces information relating to the maternal genome because the sperm does not form a polar body. For this reason, it is not possible to diagnose diseases that are transmitted via the paternal X-chromosome (such as Duchenne muscular dystrophy). The same applies to changes in the number and structure of chromosomes which sometimes occur after the first or second mitotic cell division of 4 Leopoldina et al. (eds.), Präimplantationsdiagnostik (PID) – Auswirkungen einer begrenzten Zulassung in Deutschland (2011), 21, available at: http://www.leopoldina.org/de/politik/empfehlun gen-und-stellungnahmen/nationale-empfehlungen/praeimplantationsdiagnostik-pid.html (accessed on 15 February 2012). For further information with regard to the legal position in other countries see also Deutscher Ethikrat (ed.), Präimplantationsdiagnostik (2011), 69, available at: http://www.ethikrat. org/dateien/pdf/stellungnahme-praeimplantationsdiagnostik.pdf (accessed on 15 February 2012); Barbara Böckenförde-Wunderlich, Präimplantationsdiagnostik als Rechtsproblem (2002), 34; Martin Heyer/Hans-Georg Dederer (eds.), Präimplantationsdiagnostik, Embryonenforschung, Klonen: Ein vergleichender Überblick zur Rechtslage in ausgewählten Ländern (2007). 5

Leopoldina (note 4), 17.

6

For further details see infra, III.

7

Embryo Protection Act (Embryonenschutzgesetz), 13 December 1990, BGBl. I, 2746. The provision reads as follows: “For the purpose of this Act, an embryo already means the human egg cell, fertilised and capable of developing, from the time of fusion of the nuclei, and further, each totipotent cell removed from an embryo that is assumed to be able to divide and to develop into an individual under the appropriate conditions for that”.

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the embryo, i.e. in its early blastomere stage. Due to these disadvantages, the polar body biopsy is of a lesser significance in diagnostic practice.8 In contrast, the blastomere biopsy is far more common. In the course of this biopsy, two cells (blastomeres) are removed three days post conceptionem (p.c.) from an embryo consisting of six to ten cells for diagnosis purposes.9 To do this, a small hole is created in the zona pellucida to extract blastomeres from the loosened cell structure. In the subsequent genetic analysis, the leached cells are destroyed. Since a diagnosis takes about 24 hours, the embryo is implanted on the following day, i.e. between the third and fourth day p.c. So far, impairments caused to the ‘residual embryo’ or even postnatal defects have not been demonstrated.10 Finally, in the course of the trophoectoderm biopsy the genetic investigation takes place on the fifth or sixth day p.c., i.e. when the embryo consists of about 32 to 64 cells (blastocyst stage). At this stage of development, up to ten cells can be removed for examination. As at this point a differentiation into embryonic blast and trophoblast has already taken place, the genetic diagnosis can be conducted with trophoblast cells, which do not develop into the embryo but into the placenta. However, as the blastocyst stage is not reached before the fifth or sixth day after the fusion of egg and sperm cells, this method has the disadvantage that the embryo transfer cannot be performed before the subsequent hormonal cycle of the woman. As the examination requires additional time, the hormonal climate of the recipient is then no longer suitable for implantation. The embryo must therefore be cryopreserved. Moreover, at this ontogenetic stage the cells are already very small and stick together. Accordingly, there is a risk that some may be destroyed during removal, which may cause a contamination of the analysed cells with genetic material of the destroyed cells and falsify the diagnostic result. Due to these disadvantages, the method is of only minor significance in clinical practice.11 However, since it is expected that genetic diagnosis will be conducted much faster in the future, the need to postpone the embryo transfer until the next cycle and 8

Ralf Müller-Terpitz, Der Schutz des pränatalen Lebens (2007), 539; Leopoldina (note 4), 18.

9

In general, two cells are removed from the embryo to allow a confirming second scan diagnosis. The embryo may only lose a quarter of its cell mass, otherwise it degenerates. Thus, a removal of two blastomeres usually takes place at or after the eight-cell stage and is therefore generally carried out after the removed blastomeres have lost their totipotency, but still before compaction of the morula. 10

Leopoldina (note 4), 17; Müller-Terpitz (note 8), 18.

11

Müller-Terpitz (note 8), 540 with further references.

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the related need for a cryopreservation of the embryo may become obsolete.12 Thus, the trophoectoderm biopsy could one day enjoy increasing popularity. Despite the diagnostic possibilities opened by PGD, its spectrum of analysis is generally limited: the method is only suitable for diagnosing around 100 known monogenic diseases (such as Huntington’s disease, fragile X syndrome, Lesch-Nyhan syndrome, Crohn’s Ty-Sachs, cystic fibrosis, Duchenne muscular dystrophy) and structural chromosomal abnormalities (translocations) or chromosomal aberrations (aneuploidies). The latter mainly occur in cases where the egg donor is of an advanced age (> 35 years). Only around 3–5 % of all genetic disorders have monogenic origins, i.e. are caused by the change or the failure of a single gene. Thus, common disorders such as Alzheimer’s, Parkinson’s, diabetes mellitus, etc. cannot be detected by this diagnosis. Furthermore, diseases with a polygenic cause cannot – now and probably also in the future – be detected via PGD. The same applies to human qualities (intelligence, facial features, growth, sporting ability, etc.) or illnesses that are caused by a multifactorial interplay of a variety of genes and environmental influences.13 Therefore, studies in Germany estimate that the amount of genetic testing of embryos in vitro will only amount to several hundred cases per year.14 Besides, PGD is a very expensive and complex diagnosis which is associated with physical and mental burden for the egg donor, caused particularly by the in vitro fertilisation treatment. Thus, it is only applied to those cases in which a couple’s risk of producing a child with a specific genetic or chromosomal disorder is anticipated. PGD is also considered with regard to women who – due to their age – carry a higher risk of chromosomal abnormalities. However, in those instances PGD is usually only performed after several unsuccessful infertility treatments or miscarriages or where there is a history of chromosomal disorder in the previous children of at least one of the potential parents.15

12

Leopoldina (note 4), 15.

13

Müller-Terpitz (note 8), 541 with further references.

14

Leopoldina (note 4), 4.

15

Müller-Terpitz (note 8), 541. For further scientific and medical details see also Deutscher Ethikrat (note 4), 10; Verena Steinke/Nils Rahmer, Medizinisch-naturwissenschaftliche Aspekte der Präimplantationsdiagnostik, in: Verena Steinke/Nils Rahmer/Annette Middel/Angela Schräer (eds.), Präimplantationsdiagnostik (2009), 13.

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In addition, the fear that PGD could lead to a comprehensive sequencing of the embryo’s genome due to modern high-throughput methods appear to be unfounded. An embryo only possesses those genes that it inherits from its genetic parents. Therefore, genetic screening methods would only be applied to the parents, not to the embryo. If this screening detects a gene that could significantly affect the future child’s health, a selective PGD on the embryo is considered. On the embryo itself a comprehensive genetic testing is not and will not be conducted since every human being in a biological sense – including the embryo – carries a large number of genetic variants (mutations) whose relevance to human health is still entirely unknown.16 Moreover, the complete screening of the embryo’s genome, for instance with the help of chip diagnosis, can be used to simultaneously scan for different genetic variants, but this does not resolve the problem that most diseases have a multifactorial origin.17

III. Legal Developments under German Law While the polar body biopsy, which is performed on cells that do not possess the status of a human embryo, raises no substantial legal problems, the controversial question as to whether carrying out a blastomere or trophoectoderm biopsy is a criminal offence under German law has been discussed for many years.18 In Germany, legal questions regarding the medically assisted reproduction of human life are governed by the Act for Protection of Embryos (Embryo Protection Act) of 13 December 1990.19 Curiously, the Embryo Protection Act is criminal legislation – although the Federation (Bund) had competence over the creation of criminal legislation at the time of the Act’s implementation, competence on the regulation of aspects related to the medically assisted creation of human life was vested in the Federal States (Länder). This has since 16

Leopoldina (note 4), 15.

17

Ibid., 17.

18

See e.g. Urs Peter Böcher, Präimplantationsdiagnostik und Embryonenschutz: zu den Problemen der strafrechtlichen Regelung eines neuen medizinischen Verfahrens (2004), 73; Böckenförde-Wunderlich (note 4), 113; Elisabeth Giwer, Rechtsfragen der Präimplantationsdiagnostik (2001), 58; Hans-Ludwig Günther, in: id. Jochen Taupitz/Peter Kaiser (eds.), Embryonenschutzgesetz (2008), 221; Annette Middel, Rechtliche Aspekte der Präimplantationsdiagnostik, in: Steinke/Rahmer/Middel/ Schräer (note 15), 52; Susanne Schneider, Rechtliche Aspekte der Präimplantations- und Präfertilisationsdiagnostik (2002), 50. 19

See supra, note 7.

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changed: in 1994 this legislative competence was granted to the Federation in Article 74 (1) No. 26 of the German Basic Law (Grundgesetz).20 Nevertheless, to date the federal legislative has not had the political will to adopt an ‘Artificial Reproduction Act’ (Fortpflanzungsmedizingesetz) as has been done in other European countries (e.g. Austria21 and the United Kingdom22). This issue was comprehensively discussed by a parliamentary Inquiry Commission (Enquete-Kommission) which emphatically recommended the adoption of such an act.23 However, since the legislator would then have to decide on certain sensitive ethical and legal issues such as PGD, the single embryo transfer or the heterologous oocyte donation, legislative action was postponed for a long time. That the German Embryo Protection Act is penal in nature is not without significance when questioning whether PGD is a criminal offence under German law. According to Article 103 (2) of the German Basic Law, an act is punishable only if it was defined by law as a criminal offence before the act is committed. Hence, this article embodies the nulla poena sine lege-principle. Under the original Embryo Protection Act, PGD was not expressly prohibited. According to Section 1 (1) No. 2 of the Embryo Protection Act, it is only forbidden to attempt artificial fertilisation of an egg cell for any other purpose than bringing about a pregnancy of the woman from whom the egg cell originated. Additionally, Section 2 (1) of the Embryo Protection Act prohibits the use of a human embryo for a purpose not serving its preservation. As PGD was not expressly prohibited by the Embryo Protection Act, whether these criminal provisions could also be applied to the diagnostic method of PGD was controversial and continually discussed in the German jurisprudence.24

20

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944. The provision reads as follows: “Concurrent legislative powers shall extend to the following subjects: […] human artificial insemination, analysis and modification of genetic information, as well as the regulation of organ and tissue transplantation”. 21

Austrian Artificial Procreation Act (Fortpflanzungsmedizingesetz), 4 June 1992, BGBl., 1299.

22

Human Fertilisation and Embryology Act 2008, 13 November 2008, 2008 c. 22, available via: http://www.legislation.gov.uk/ukpga/2008/22/contents (accessed on 12 March 2012). 23 See Schlussbericht der Enquete-Kommission “Recht und Ethik der modernen Medizin,” BT-Drs. (Federal Parliament Printed Paper) 14/9020, available at: http://dip21.bundestag.de/dip21/btd/14/ 090/1409020.pdf (accessed on 15 February 2012). 24

For references see supra, note 18.

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To clarify this uncertain legal situation for couples as well as physicians, a gynaecologist from Berlin applied PGD to embryos and reported this procedure to the competent public prosecutor. The physician was charged with misuse of reproductive technologies and the abusive use of human embryos but was later acquitted by the competent district court.25 The department of public prosecution appealed against the acquittal to the Federal Court of Justice which rendered its decision in May 2010. The appeal was not successful: remarkably, the Federal Court of Justice ruled that PGD was not under any circumstances a criminal offence under the German Embryo Protection Act. The Court reasoned that Section 1 (1) No. 2 of the Embryo Protection Act was not violated when the physician acted for the purpose of effecting pregnancy. According to the Federal Court of Justice, at the time of fertilisation the gynaecologist had the intention of implanting each fertilised egg to bring about pregnancy. However, his intention was to achieve this pregnancy with healthy embryos. Only in the unfortunate case of a positive diagnostic result would he have refrained from implantation. As the Court indicates in its further argumentation, this did not detract from his intention to bring about pregnancy.26 Throughout the overall fertilisation process, the embryo’s genetic diagnosis had only been a “dependent interim target.”27 It would not have been carried out had the intention to bring about a pregnancy not existed.28 Besides, cell harvesting for examination purposes and omitting transfer of embryos with a positive diagnostic result did not violate Section 2 (1) of the Embryo Protection Act. According to the Federal Court of Justice, this harvesting of cells by a physician does not represent a ‘use’ of the embryo. Only the pluripotent blastomere or trophoblast cells that were taken and which did not possess the status of a human embryo would be ‘used’ within the meaning of the Embryo Protection Act. On the contrary the removal of totipotent cells from the 25 Regional Court Berlin (Landgericht Berlin), Judgment of 14 May 2009, reprinted in: BeckRechtsprechung 2010, 06423. Annotated by Rainer Beckmann, Präimplantationsdiagnostik und Embryonenschutzgesetz, Zeitschrift für Lebensrecht (ZfL) 18 (2009), 125; Middel (note 18), 106. 26

Federal Court of Justice (note 1), paras. 16 and 17. Annotated by Jens Kersten, Die genetische Optimierung des Menschen, Juristen Zeitung 66 (2011), 161, 165; Hartmut Kreß, Präimplantationsdiagnostik und Fortpflanzungsmedizin angesichts des ethischen Pluralismus – Rechtspolitische Gesichtspunkte nach dem Urteil des BGH, Zeitschrift für Rechtspolitik 43 (2010), 201; Matthias Krüger/ Johanna Gollnick, Zur Präimplantationsdiagnostik nach dem Grundsatzurteil des Bundesgerichtshofs, Der Gynäkologe 43 (2010), 955. 27

Federal Court of Justice (note 1), para. 19.

28

Ibid.

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embryo, which might occur in the course of a blastomere biopsy prior to the eight-cell stage,29 is still considered to be a criminal offence by the Federal Court of Justice.30 This judgment strongly influenced the public debate on embryo testing preceding implantation. As the Federal Court of Justice explicitly restricted its finding to “severe genetic damages,”31 it suggested that the issue should be comprehensively regulated by law in order to provide legal certainty for patients and physicians.32 As a result of this judicial recommendation, three bills were discussed in the Federal Parliament, the German Bundestag, having been drafted and introduced by members of Parliament across party lines and not (as is usual) by the Federal Government.33 The first bill would have strictly prohibited PGD.34 This proposal, which was supported inter alia by Federal Chancellor Dr. Angela Merkel, argued that the use of PGD would endanger the acceptance of social diversity and thereby increase social pressure on parents to have solely healthy children. The values of the Basic Law expressly provide that every person, including the embryo in vitro, has the same right to dignity and life; by allowing PGD, this value system would be seriously compromised. The second bill would have permitted PGD in exceptional cases where, due to the genetic disposition of the parents or one parent, a high probability of a severe genetic disease or severe genetic damage to the embryo was to be anticipated. Nevertheless, according to this proposal, PGD should only be carried out after medical and psychosocial counselling, written consent of the mother and a positive vote of an interdisciplinary Ethics Committee.35 Thus, this proposal was very similar to the current legal

29

See supra, note 9.

30

Federal Court of Justice (note 1), para. 36.

31

Ibid., para. 29.

32

Ibid.

33

The bills are presented in detail by Urban Scheffer, Zur Zukunft der Präimplantationsdiagnostik in Deutschland, ZfL 20 (2011), 9 with further references. 34 BT-Drs. 17/5450, available at: http://dip21.bundestag.de/dip21/btd/17/054/1705450.pdf (accessed on 15 February 2012). 35 BT-Drs. 17/5451, available at: http://dip21.bundestag.de/dip21/btd/17/054/1705451.pdf and BT-Drs. 17/6400, available at: http://dip21.bundestag.de/dip21/btd/17/064/1706400.pdf (both accessed on 15 February 2012).

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position in the United Kingdom.36 To a large extent, its reasoning focussed on the legal protection and ethical conflicts of women emphasising that the State had a particular responsibility to protect them against severe physical and mental stress that might be caused by a pregnancy with a genetically damaged child or late abortion. And finally, the third bill would have permitted PGD in the very rare cases where at least one of the embryo’s parents possessed a genetic or chromosomal disposition that, according to the latest medical practice, is usually associated with a high probability of leading to death or miscarriage of the embryo/foetus or to death in the first year of the child’s life.37 The German Bundestag finally adopted the second proposal.38 However, criticism should be levelled at the fact that this proposal primarily focuses on the ethical and legal situation of the potential mother or future parents. In contrast to the first and third legislative proposal, it does not reflect the legal status of the embryo in vitro, especially the issue of its constitutional protection under Articles 1 (1) (dignity of human beings) and 2 (2) (right to life) of the German Basic Law.39 Until now, the Embryo Protection Act has assumed that the embryo is an individual protected by these constitutional provisions. For this reason, the Act inter alia strictly prohibits research on human embryos. As in the future the destruction of embryos with ostensibly adverse genetic results after PGD will under certain conditions be admissible, the question arises whether and how this new legal situation on the level of statutory law will influence the interpretation of the Basic Law’s fundamental rights with regard to the status of human embryos. This development remains to be seen.

36 For further details with regard to British law see Deutscher Ethikrat (note 4), 77; BöckenfördeWunderlich (note 4), 46; Heyer/Dederer (note 4), 29; Leopoldina (note 4), 22. 37

BT-Drs. 17/5452, available at: http://dip21.bundestag.de/dip21/btd/17/054/1705452.pdf (accessed on 15 February 2012). 38

See Bundestag Plenarprotokoll 17/120 of 7 July 2011, 13910, available at: http://dipbt.bundes tag.de/dip21/btp/17/17120.pdf (accessed on 16 February 2012) and Act on Pre-Implantation Genetic Diagnosis (note 2). 39

See with further details and references Böckenförde-Wunderlich (note 4), 147; Petra Ferdinand, Pränatal- und Präimplantationsdiagnostik aus verfassungsrechtlicher Sicht (2009), 174; Middel (note 18), 60; Müller-Terpitz (note 8), 131.

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IV. Legal Status of the Early Human Embryo in European Human Rights Law A. Introduction

From a legal point of view, PGD particularly raises the question as to which fundamental rights protect early human embryos under international law and to what extent. Two fundamental rights are brought into focus: the dignity of human beings and the right to life. If these fundamental guarantees were to be granted to early human embryos, PGD would have to be considered as an infringement of these rights: a suspicious genetic or chromosomal result obtained from such a diagnostic method would automatically lead to a non-transfer of the respective embryo into the uterus of the egg cell donor and in consequence to a killing of the concerned embryo via an act of omission.40 As will be shown below, selecting human beings based solely on physical malfunctions caused, for instance, by genetic or chromosomal aberrations is incompatible with the fundamental principle of human dignity and the fundamental right to life. In particular, under European human rights law, States are not only obliged to refrain from any infringement of the fundamental rights of their citizens, they also have the duty to actively protect them against violations by others, i.e. in the present context by the embryo’s parents and the persons carrying out the genetic diagnosis.41 Hence, if the early human embryo were protected by the guarantees of human dignity and life, the States would have to take positive action to protect them against this form of infringement. The subsequent analysis of the aforementioned question will concentrate on the regional international law of the Council of Europe. This focus is due on the one hand to the fact that an analysis of universal international law cannot be provided within the scope of the present essay.42 On the other hand, in contrast to universal international law, European law possesses a central institution – the European Court of 40

For this consequence, which is often referred to as a ‘selection automatism’ in the German public and legal debate regarding PGD, see Müller-Terpitz (note 8), 556. 41 42

See ibid., 409 with further references to the jurisprudence of the European Court of Human Rights.

For the legal status of prenatal life in universal international law see Maja Kirilova Eriksson, The Legal Position of the Unborn Child in International Law, GYIL 36 (1993), 86; Müller-Terpitz (note 8), 385; Niels Petersen, The Legal Status of the Human Embryo in vitro: General Human Rights Instrument, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 65 (2005), 447.

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Human Rights (ECtHR) – that has the power to provide binding interpretation of the fundamental rights as set out in the European Convention on Human Rights (ECHR).43 Thus, it will be particularly interesting to learn what positions the ECtHR has taken with regard to the protection of early human embryos (section B.2.). Furthermore, the Council of Europe has adopted a specific regulation – the Biomedicine Convention44 – which inter alia contains provisions related to the issue of genetic diagnoses. The subsequent analysis will start with these particular provisions (section B.1.).

B. Protection of Early Human Embryos at European Level

As already mentioned, at European level, two treaties are of relevance for the status of the early human embryo and therefore deserve closer attention: the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997 (1.) and the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (2.).

1. Biomedicine Convention a) Introductory Remarks Like no other legal document, the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine – in short: the Biomedicine Convention – of 4 April 1997 influences the legal assessment of biomedical issues. Its purpose is to extend the human rights embodied in the ECHR into the area of biomedical hazards. The Convention entered into force in December 1999 and has to date been signed by 35 and ratified by 28 Member States of the Council of Europe. Although the Federal Republic of Germany had been actively involved in the drafting of this legal document, it consequently refused to sign the Convention due to reservations regarding it permitting the 43 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR). 44 Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, 4 April 1997, ETS No. 164 (Biomedicine Convention).

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carrying out of interventions on persons without the capacity to consent and its toleration of research on embryos in vitro.45 Nevertheless, the Biomedicine Convention exerts influence not only on the domestic German and European levels, but also adds to the global debate on the legal handling of biomedical issues. Without exaggeration, the Convention can be regarded as one of the most significant international legal documents worldwide in this area. The Convention’s universal significance results inter alia from the fact that it can be ratified by States and other international legal personalities that are not parties to the Council of Europe, such as the Holy See, Australia, Japan, Canada and the United States. Even the European Union, being an international organisation, is entitled to sign the Convention,46 though none of them has exercised this option so far. However, in its biomedical-related legislation and actions, the European Union usually refers to the Biomedicine Convention and its protocols and commits itself to a voluntary respect for its provisions.47 Following a general trend in international law, the Biomedicine Convention was designed as a framework convention. Thus, it only stipulates some general principles and rules as well as human rights and prohibitions with regard to specific biomedical topics. These framework provisions need to be further specified by additional protocols, which themselves constitute international treaties which may only be ratified in conjunction with the Biomedicine Convention.48 Meanwhile, four such protocols have been adopted concerning the cloning of human beings, the transplantation of organs and tissues, the biomedical research and, most recently, the genetic testing for health purposes.49 45

Ralf Müller-Terpitz, Das Recht der Biomedizin (2006), 7.

46

See Art. 33 (1) Biomedicine Convention.

47

See e.g. EC Council Decision 2002/834 of 30 September 2002, OJ 2002 L 294, 1, 7, or EC Directive 2004/23 of 31 March 2004, OJ 2004 L 102, 48, recital 22. 48 49

See Arts. 31 and 32 Biomedicine Convention.

Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings, 12 January 1998, ETS No. 168; Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin, 24 January 2002, ETS No. 186; Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research, 25 January 2005, CETS No. 195 and Additional Protocol to the Convention on Human Rights and Biomedicine concerning Genetic Testing for Health Purposes, 27 November 2008, CETS No. 203.

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b) Provisions Related to the Issue of PGD The Biomedicine Convention contains several provisions that could be of relevance for the issue of PGD: First of all, Article 10 (1) Biomedicine Convention provides that “[e]very-one has the right to respect for private life in relation to information about his or her health.” Thus, the beneficiary of this individual right (‘everyone’) is obliged neither to disclose any information on his or her health to third parties, nor to gain knowledge about his or her health or physical conditions including his or her genetic constitution. Nevertheless, in the present context of genetic testing, this “right to know or not to know” is without relevance as the term ‘everyone’ expresses a strong indication that Article 10 is not applicable to individual prenatal life. For the first time, the term ‘everyone’ is introduced by the Biomedicine Convention in Article 1 (1) as opposed to the expression ‘human beings’. While the latter expression is generally related to a protection of human dignity and identity of beings belonging to the human species and thus may also include human embryos from the moment of their procreation, the term ‘everyone’ (or ‘any’) refers to a legal entity that is entitled to fundamental rights and freedoms.50 The genesis of the Biomedicine Convention shows that a consensus with regard to the interpretation of this latter term could not be achieved – as so often happens in negotiations concerning the status of unborn human life in international law. According to the Explanatory Report to the Biomedicine Convention,51 the contracting parties thus agreed to assign the competence to specify the legal term ‘everyone’ to the national legislator.52 Therefore, the Convention leaves this expression undefined with the result that it grants individual rights such as Article 10 (1) only to born, but not to unborn human beings. Furthermore, Article 11 Biomedicine Convention could be of relevance in the present context, prohibiting “[a]ny form of discrimination against a person on grounds of his or her genetic heritage […].” This prohibition of discrimination leads to the question whether it protects unborn life against discrimination (i.e. destruction) on 50

With general reference to the use of the term ‘person’ (as opposed to the term ‘human being’) in international law Eriksson (note 42), 88. 51 Explanatory Report to the Biomedicine Convention 1997, available at: http://conventions.coe. int/treaty/en/Reports/Html/164.htm (accessed on 12 March 2012). 52

Ibid., para. 18.

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grounds of certain undesirable genetic predispositions or defects. Again, due to the fact that Article 11 only applies to persons (‘a person’), it cannot by itself be extended to the nasciturus. As shown above, this extension requires a corresponding specification by the national legislation or an agreement in an additional protocol.53 The same applies to Article 12 that limits genetic diagnoses to therapeutic purposes.54 Once again, this provision is only applicable to ‘persons’ and therefore its scope limited to alreadyborn human beings.55 This restrictive interpretation is also confirmed by the Explanatory Report, explicitly stating that Article 12 does not stipulate any limitation with regard to diagnostic tests carried out on human embryos.56 Consequently, the new Additional Protocol to the Convention on Human Rights and Biomedicine concerning Genetic Testing for Health Purposes of 27 Novem-ber 2008 explicitly states in its Article 2 (2)(a) that “[t]his Protocol does not apply […] to genetic tests carried out on the human embryo or foetus.” By contrast, protection in favour of the embryo may derive from the prohibition of sex selection as provided for in Article 1457 that incidentally belongs to the absolute provisions of the Convention.58 Article 14 expresses the idea, which is deeply ingrained in European countries, that men and women have equal rights. Thus, selection based solely on sex is perceived as being irrelevant and fundamentally discriminatory. Therefore, Article 14 is particularly close to the principle of human dignity as set out in Article 1 (1) Biomedicine Convention. To the extent that the provision permits sex selection at all, with regard to sex-linked hereditary diseases, such selection – if technically possible and reliable – would have to be made at the gamete stage and not

53

See to that effect Elisabeth Dujmovits, Reproduktionsmedizin – Gesetzgebung im Wandel?, in: Christian Kopetzki/Heinz Mayer (eds.), Biotechnologie und Recht (2002), 91, 116. 54

The provision reads as follows: “Tests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”. 55

With the same conclusion Dujmovits (note 53), 116.

56

See Explanatory Report (note 51), para. 83: “Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child”. 57 The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided. 58

See Art. 26 (2) Biomedicine Convention.

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after the embryo, capable of having human dignity, has been created.59 Although such a restriction is not explicitly set out in Article 14 Biomedicine Convention, it follows from Article 1 (1) serving as a guideline for the interpretation of other provisions of the Convention. The selection process must therefore be carried out pursuant to the principle of minimal impact on human life, which means that the choice – as far as reliably possible – already has to take place in the pre-conceptional stage. In any event, it would not be compatible with Article 14 Biomedicine Convention to conduct PGD solely for the purpose of determining the embryo’s sex. In summary, the Biomedicine Convention treats individual prenatal life expressly as an entity to be protected by international law and approves its status as a ‘human being’ possessing human dignity. However, neither the framework convention nor the additional protocols transfer this general status to concrete normative guidelines or individual rights. Significant fundamental rights such as the “right to know or not to know” (Article 10), the prohibition of discrimination based on grounds of genetic reasons (Article 11) or the prohibition of conducting genetic tests for non-therapeutical purposes (Article 12) are limited to ‘persons’ and therefore not applicable to prenatal life. Restrictions stipulated by the Convention could only be identified with regard to gender selection via PGD. Hence, the Biomedicine Convention leaves the issue of embryo screening, i.e. the question whether and to what extent it shall be admissible, predominantly to the national legislator.

2. European Convention on Human Rights The ECHR is of relevance for the present issue. First and foremost, the question has to be answered whether early human embryos are protected by the right to life as laid down in Article 2 (1) ECHR.60 It is not without reason that its authors placed this fundamental provision at the beginning of the Convention in order to send out an 59 Such a possibility of selection at the gamete stage is made possible by the MicroSort-procedure, a centrifugal technology which is capable of separating sperm carrying X-chromosomes and Y-chromosomes with utmost reliability. See E. F. Fugger et al., Births of normal daughters after MicroSort sperm separation and intrauterine insemination, in-vitro fertilization, or intracytoplasmic sperm injection, Human Reproduction 13 (1998), 2367. 60 Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

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explicit signal against human barbarism as occurred during World War II.61 Some striking parallels are apparent between the protection of human life at the German national62 and European levels: both fundamental rights systems protect the biological existence of human beings per se, i.e. regardless of physical or mental conditions including age, gender, health, mental capacity or genetic constitution. Article 2 (1) ECHR has played an important role with regard to the legal liberalisation of abortion in the Member States of the Council of Europe. This development, which mainly took place in the 1970s, forced the ECtHR to decide whether the termination of pregnancy (and thus kill an unborn human being) violates the right to life of the nasciturus although being permissible in national law. Such a legal perspective would necessarily lead to a prohibition of these practices as abortion cannot be justified by Article 2 (2) ECHR.63 Article 2 (1) ECHR does not explicitly indicate an answer to this question. In addition, the legal status of the embryo under Article 2 (1) ECHR was not discussed during the drafting process.64 In this respect, the ECHR differs from another regional human rights document, the American Convention on Human Rights of 22 November 1969 (ACHR),65 which has been in force since 1978. In its Article 4 (1) cl. 2, the ACHR guarantees the right to have one’s life respected “in general, from the moment of conception.” However, the formulation ‘in general’ already reveals that the Convention does not necessarily intend an absolute protection of prenatal human life from conception. Accordingly, in its famous Baby Boy-decision, the InterAmerican Commission concluded that this formulation had to be interpreted as a compromise between proponents and opponents of abortion so that the State parties to the Convention retain a wide margin of discretion when legislating on this matter.66

61

See ECtHR, Pretty v. United Kingdom, Judgment of 29 April 2002, RJD 2002-III, 155, para. 37.

62

See Art. 2 (2) cl. 1 German Basic Law.

63

This provision reads as follows: “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a) in defence of any person from unlawful violence; b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c) in action lawfully taken for the purpose of quelling a riot or insurrection”. 64

See Holger Haßmann, Embryonenschutz im Spannungsfeld internationaler Menschenrechte (2003), 57; Peter Willem Smits, The Right to Life of the Unborn Child in International Documents (1992), 67. 65 66

American Convention on Human Rights, 22 November 1969, UNTS 1144, 123 (ACHR).

See Inter-American Commission on Human Rights, Resolution No. 23/81, Case 2141 of 6 March 1981, reprinted in: Human Rights Law Journal 2 (1981), 110. For further details see Petersen (note 42), 456.

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The protection of unborn human life had been the subject of several individual applications to the European Commission on Human Rights (ECmHR), which has since been dissolved. All these complaints referred to national abortion law, including Section 218 of the German Criminal Code.67 The ECtHR has also had several opportunities to rule on this issue68, for instance its recent judgment in Vo v. France.69 This case from 2004 concerned a pregnant woman with Vietnamese roots who was born in France. As a result of confusing the applicant with another patient of the same name, she was given an abortion by mistake against her wishes. Ms. Vo then filed charges against the physician on grounds of involuntary homicide. However, the physician was discharged by the French court of last instance, the Court of Cassation (Cour de Cassation), arguing that the criminal offence of involuntary homicide does not protect unborn human life – a point of view that is incidentally shared by the German criminal jurisdiction.70 Consequently, Ms. Vo claimed before the ECtHR that the legal position in France did not sufficiently protect the right to life of an unborn child as laid down in Article 2 (1) ECHR. However, in a Grand Chamber decision the majority of judges (14:3) found itself unable to support this legal point of view. In particular, the Court expressly left open the question whether the nasciturus was to be covered by the term ‘everyone’ in Article 2 (1) ECHR: At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus […], although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person enjoying protection 67 German Criminal Code (Strafgesetzbuch), 13 November 1998, BGBl. I, 3322, as amended on 6 December 2011, BGBl. I, 2557. See as to the complaints ECmHR, Brüggemann and Scheuten v. the Federal Republic of Germany, Resolution of 17 March 1978, reprinted in: Europäische GrundrechteZeitschrift (EuGRZ) 5 (1978), 199; id. Paton v. United Kingdom, Decision of 13 May 1980, reprinted in: EuGRZ 8 (1981), 20; id., Robert Hercz v. Norway, Decision of 19 May 1992, reprinted in: Yearbook of the European Convention on Human Rights 35 (1992), 53 et seq. For further details see MüllerTerpitz (note 8), 401. 68

See ECtHR, Open Door and Dublin Well Woman v. Ireland, Judgment of 29 October 1992, Series A, No. 246-A; id., Boso v. Italy, Decision of 5 September 2002, RJD 2002-VII, 441. For further details, once again see Müller-Terpitz (note 8), 403. 69 70

ECtHR, Vo v. France, Judgment of 8 July 2004, RJD 2004-VIII, 1.

For further references see Albin Eser, in: Adolf Schönke/Horst Schröder (eds.), Strafgesetzbuch (28th ed. 2010), Sec. 222 (2).

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under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom […] require protection in the name of human dignity, without making it a ‘person’ with the ‘right to life’ for the purposes of Article 2. The Oviedo Convention on Human Rights and Biomedicine, indeed, is careful not to give a definition of the term ‘everyone’ and its explanatory report indicates that, in the absence of a unanimous agreement on the definition, the member States decided to allow domestic law to provide clarifications for the purposes of the application of that Convention […]. Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention […].71

Besides, according to the Court’s majority opinion, it was unnecessary to examine whether the abrupt end to Ms. Vo’s pregnancy fell within the scope of Article 2 ECHR. In particular, the Court found that – even assuming that this provision was applicable – there was no failure on the part of France to comply with the requirements relating to the preservation of life in the public health sphere. In this context, the Court recognised that the unborn child’s lack of a clear legal status did not necessarily deprive it of all protection under French law. According to the view held by the Court, Article 2 ECHR requires the State not only to refrain from any ‘intentional’ taking of life, but also to take appropriate steps to protect the lives of those within its jurisdiction. The positive obligations require States to adopt laws compelling public or private hospitals to take appropriate measures for the protection of patients’ life. They also require the existence of effective independent judicial structures so that the cause of death of patients in the care of the medical profession can be determined and, where appropriate, those responsible made accountable. However, if the infringement of the right to life or to physical integrity was not caused intentionally, the positive obligation imposed by Article 2 ECHR to initiate effective judicial procedures does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.72 71

ECtHR, Vo v. France (note 69), paras. 84 and 85. Confirmed in: ECtHR, A, B and C v. Ireland, Judgment of 16 December 2010, reprinted in: Neue Juristische Wochenschrift 2011, 2107, para. 237. Annotated by Katharina Pabel, Recht auf Abtreibung – Reproduktive Rechte der Frau? – Europäische Perspektiven, ZfL 3 (2011), 74, 76. 72

Ibid., paras. 85–90.

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Therefore, the State parties to the ECHR enjoy a wide margin of appreciation with regard to the question ‘whether’, ‘when’ and ‘how’ prenatal life has to be protected. This conclusion was once again emphasised by the ECtHR quite recently in the Case of Evans v. the United Kingdom,73 which is based on the subsequent facts: in 2000, the applicant – Ms. Evans – and her former partner commenced treatment at a reproduction clinic because the applicant’s ovaries had to be removed due to serious pre-cancerous tumours. As the tumours were growing at a slow rate, it was possible to extract some eggs for in vitro fertilisation. The applicant and her former partner signed a form consenting to the in vitro fertilisation treatment and were informed that, in accordance with the provisions of the Human Fertilisation and Embryology Act of 1990, it would be possible for either partner to withdraw his or her consent at any time before the embryos were implanted into the applicant’s uterus. Subsequently, eleven eggs were harvested and fertilised with six embryos being created and consigned to storage. The applicant then underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus. During this period, the couple’s relationship broke down, whereupon Ms. Evans’s former partner wrote to the clinic to notify it of the separation, withdraw his consent and demand that the embryos be destroyed. The applicant commenced proceedings in the High Court of England and Wales, seeking an injunction requiring her former partner to restore his consent and a declaration, inter alia, that he had not varied and could not vary his previous consent. Additionally, she not only sought a declaration of incompatibility under the British Human Rights Act of 1998 to the effect that the Human Fertilisation and Embryology Act breached her rights under Articles 8, 12 and 14 ECHR, but also pleaded that the embryos were entitled to protection under Articles 2 and 8 of the Convention.74 However, referring to the decision Vo v. France, the ECtHR found that the question of when the right to life is violated falls within the discretion (‘margin of appreciation’) of the Member States. In support of this, it again emphasised the lack of a European consensus with regard to the scientific and legal evaluation of the beginning of human life and therefore recognised the respective national legislators’ competence 73

ECtHR, Evans v. the United Kingdom, Judgment of 7 March 2006, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 16 February 2012). 74

Ibid., paras. 7–13.

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to determine this concept. As English law did not grant any individual rights to the embryo prior to implantation, Ms. Evans could not, according to the Court, rely on Article 2 (1) ECHR.75 Thus, it undoubtedly appears compatible with the ECHR to exclude extracorporal embryos from the scope of this individual right. Conversely, the restrictive German provisions as laid down in the Embryo Protection Act are also compatible with the ECHR. Therefore the large margin of appreciation afforded to contractual States by European human rights law leaves State legislators open to a range of options – from no protection of the embryo in vitro to strict protection. Hence, material conflicts between national legislation regarding the treatment of early human embryos and the right to life as set out in the ECHR are unlikely to occur, which means that national legislators are free to decide whether and to what extent PGD is to be permissible. This view is supported by the findings of the ECtHR that no State is obliged by the ECHR to allow assisted reproduction.76 Without such in vitro methods of reproduction being available, PGD cannot be carried out. But even if national law allows the application of reproductive medical techniques, the ECtHR grants a broad discretion to the Convention’s State parties with regard to a limitation of the ‘right to reproduction’ – a right derived by the ECtHR from the Convention’s right to respect for private and family life (Article 8 (1))77 – since no European-wide consensus on the evaluation of such methods exists.

V. Legal Status of the Early Human Embryo in EU Law As already mentioned,78 the status of the embryo has also become a legal issue on the supranational level. Since the European Union is based on the principle of conferral, it may act only within the limits of competences conferred upon it by the Member

75

Ibid., para. 46.

76

ECtHR, S. H. and others v. Austria, Judgment of 3 November 2011, para. 97, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 16 February 2012). 77

Ibid., para. 78. For further details see Katharina Pabel, Recht auf Abtreibung: Reproduktive Rechte der Frau? Europäische Perspektiven, ZfL 20 (2011), 74, 79. 78

See supra, I.

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States in the Treaties.79 Therefore, it has to be clarified to what extent the Union is entitled to legislative powers with regard to reproductive medicine in general and PGD in particular in the first place (section A). Thereupon, it will be necessary to examine which limits arising from EU law the European Union itself (section B) and the Member States have to respect when adopting PGD-related national regulation (section C).

A. Legislative Competences of the European Union with Regard to the Issue of Reproductive Medicine

The European Union possesses few direct legislative competences to regulate medical issues. Nevertheless, some provisions of the Treaty on the Functioning of the European Union (TFEU)80 allow the adoption of legislative acts or the implementation of other policies in this area. Therefore, medical issues can at least be addressed by sector-specific EU secondary law.81 The most important provision in this regard is Article 114 (1) TFEU, which stipulates that [t]he European Parliament and the Council shall […] adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

Based on this internal market competence, the European Union has, for instance, enacted a Directive on the Legal Protection of Biotechnological Inventions providing, inter alia, that the use of human embryos for industrial and commercial purposes is unpatentable.82 Furthermore, the European Union made use of this provision to enact Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro Diagnostic Medical Devices83 and Regulation 1394/2007 of 79 See Art. 5 (1) and (2) Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13 (Consolidated Version) (TEU). 80 Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (Consolidated Version) (TFEU). 81

For further details see Sara Kranz, Biomedizinrecht in der EU (2008), 143; Müller-Terpitz (note 8), 446. 82

See Art. 6 (2)(c) of EC Directive 98/44 of 6 July 1998, OJ 1998 L 213, 13.

83

EC Directive 98/79 of 27 October 1998, OJ 1998 L 331, 1.

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the European Parliament and of the Council of 13 November 2007 on Advanced Therapy Medicinal Products.84 According to its Article 1 (1), the aforementioned directive only applies to in vitro Diagnostic medical devices and thus is not relevant to the present topic. However, the latter regulation is linked with this issue as it amends Article 4 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community Code Relating to Medicinal Products for Human Use85 by means of a provision stipulating that the aforementioned Directive and all Regulations referred to therein shall not affect the application of national legislation prohibiting or restricting the use of any specific type of human […] cells [– comprising above all human germ cells and human embryonic stem cells86 –] or the sale, supply or use of medicinal products containing, consisting of or derived from these cells […].

Therefore, the treatment of human embryos in medical contexts, e.g. the question, whether it is admissible under the respective national law to use embryonic stem cells harvested from human embryos that are going to be destroyed by this procedure, falls within the decision-making authority of the respective national legislator. Due to a lack of consensus among EU Member States on the legal status of early human embryos, the supranational law deliberately refrains from harmonising this sensitive ethical and legal issue. In addition, Article 168 TFEU grants legislative competences to the European Union with regard to health-related issues. According to Article 168 (4)(a) TFEU, the European Parliament and the Council are empowered to adopt measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives in order to meet health-related common safety concerns. Based on this provision, the European Union has enacted a Directive on Setting Standards of Quality and Safety for the Donation, Procurement, Testing, Processing, Preservation, Storage and Distribution of Human Tissues and Cells (Tissue Directive).87 In general, this Directive also applies to foetal and embryonic stem cells. In its Article 4 (3), the European legislator has imposed a restriction similar to the afore84

EC Regulation 1394/2007 of 13 November 2007, OJ 2007 L 324, 121. It is worth mentioning that the Member States have meanwhile put in place a more specific legislative competence for this subject matter in Art. 168 (4)(c) TFEU by the Treaty of Lisbon. See Ralf Müller-Terpitz, Europarecht (No. 170), in: Andreas Spickhoff (ed.), Medizinrecht (2011), 632, para. 13. 85

EC Directive 2001/83 of 6 November 2001, OJ 2001 L 311, 67.

86

See Müller-Terpitz (note 84), 631, para. 12.

87

EC Directive 2004/23 of 31 March 2004, OJ 2004 L 102, 48 (Tissue Directive).

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mentioned Article 4 of Directive 2001/83/EC. According to this provision, the Tissue Directive does not affect the decisions of the Member States prohibiting the donation, procurement, testing, processing, preservation, storage, distribution or use of any specific type of human tissues or cells or cells from any specified source, including instances where those decisions also concern imports of the same type of human tissues or cells.88

Again, the European legislator leaves the decision on how to treat “specific type[s] of human cells,” i.e. human embryonic stem cells in particular89 and thus the treatment of human embryos, to the respective national legislator. Moreover, Recital 12 of the Preamble of the Tissue Directive explicitly emphasises that it “should not interfere with provisions of Member States defining the legal term ‘person’ or ‘individual’.” However, the European Union cannot rely on legislative competences derived from the Treaty’s research-related provisions (Articles 179 et seq. TFEU) or even from the fundamental rights as set out in the Charter of Fundamental Rights of the European Union (CFREU).90 First of all, carrying out genetic testing on embryos via PGD does not constitute research activity. Secondly, according to its Article 51 (1) and (2), the Charter does not extend the scope of EU law beyond the powers of the Union or “establish any new power or task for the Union, or modify powers and tasks defined by the Treaties.” Thus, the fundamental rights as stipulated in the Charter do not empower the European Union to take legislative action. In summary, the foregoing overview illustrates that the current EU secondary legislation does not contain any provision dealing with the issue of assisted reproductive medicine, including the testing of embryos. Yet even if the EU intended to regulate these issues, e.g. based on the services-related legislative competences as set out in Article 62 TFEU in conjunction with Article 53 TFEU or Article 59 TFEU, it would likely avoid creating legislation concerning the sensitive subject of PGD. The current secondary legislation concerning the status and the treatment of early human 88

Emphasis added. Therefore, the German Stem Cell Act of 28 June 2002, which generally prohibits import and use of human embryonic stem cells (see Sec. 4 (1)) and allows exceptions of this prohibition only under strict conditions, is compatible with EU law. Stem Cell Act (Stammzellgesetz), 28 June 2002, BGBl. I, 2277. 89 90

See Recital 12 Preamble Tissue Directive.

Charter of Fundamental Rights of the European Union, 30 March 2010, OJ 2010 C 83, 389 (CFREU).

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embryos and cells derived from those entities shows that the European Union was drafted sensitively enough to not interfere with established ethical and legal traditions of the respective Member States with regard to the status of unborn human life. This assessment of the legal situation under EU law is supported by a recent judgment of the ECJ concerning Directive 98/44/EC on the Legal Protection of Biotechnological Inventions. In this decision, the Court explicitly refrained from raising questions of a medical or ethical nature with regard to the general status of human embryos under EU law. Instead, the Court restricted itself to a legal interpretation of the relevant secondary provisions of the aforementioned directive.91

B. Fundamental Rights as Limitation on EU Legislation

Notwithstanding the above examination of the European Union’s legislative competences with regard to early human embryos, the subsequent analysis focuses on the question to what extent EU institutions are restricted by fundamental rights when legislating on this subject. According to Article 51 (1) CFREU, the provisions of the Charter are addressed to EU institutions, bodies, offices and agencies (and to the Member States when implementing EU law) and thus have to be respected. Such consideration must lead to the question as to which legal status is attributed to early human embryos by the Charter that became a legally binding part of EU law on 1 December 2009.92 In the present context, three fundamental guarantees are of relevance with regard to unborn human life prior to implantation and therefore deserve closer attention: the right to life (Article 2 CFREU), the right to physical integrity (Article 3 CFREU) and the dignity of man (Article 1 CFREU). According to Article 2 (1) CFREU “[e]veryone has the right to life.” Just as at international93 and national level,94 the scope of the term ‘everyone’ remains unclear. Neither the explanations drawn up to provide guidance in the interpretation of the

91

ECJ, Oliver Brüstle (note 3), para. 30.

92

See Art. 6 (1) TEU.

93

See supra, IV. B.

94

See Müller-Terpitz (note 8), 133 with further references.

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Charter, which shall be given due regard while interpreting its provisions,95 nor the discussion in its drafting body – the Convention – reveal an answer to this question.96 By contrast, the Charter does not – as is set down in Article 1 (1) Biomedicine Convention97 – distinguish between the expressions ‘everyone’ and ‘human beings’, but generally speaks of ‘everyone’ to determine its personal scope. Nevertheless, this does not lead to the conclusion that only ‘persons’, being in possession of self-awareness or self-consciousness are protected by the Charter’s fundamental rights. Such a narrow view of the Charter’s scope is refuted by the fact that the German translation of the fundamental rights as laid down in Title 1 (“Dignity of Humans”) consistently uses the expression jeder Mensch (every human being) to describe the personal scope of Articles 1–5 CFREU. As both the German and English version of the Charter are equally authentic,98 the term ‘everyone’ used in the English text cannot be reduced to entities possessing specific cognitive abilities, such as in particular self-consciousness. Besides, in Article 3 (2)(d) CFREU the English version of the Charter refers to “human beings,” thus indicating that the English expression ‘everyone’ can also be interpreted in a manner that does not a limine exclude prenatal stages of human development. Finally, such an open approach is supported by the fact that Article 1 CFREU attributes dignity to all ‘humans’, regardless of their individual conditions and states (for instance age, health, sex or mental capacity). In international and German national law99 every human being, regardless of its individual mental or physical condition, is thus entitled to the guarantee of human dignity and to fundamental rights derived from this ‘meta-guarantee’, in particular the right to life and physical integrity. Therefore, it is assumed that the expressions ‘everyone’ and ‘human being’ are used as synonyms by the Charter’s first title and therefore cannot be restricted to self-conscious persons.100 95

See Art. 52 (7) CFREU.

96

In particular, the attempt of some of the Convention’s delegates to explicitly exempt unborn human life from the scope of Art. 2 CFREU had not been successful. See Martin Borowsky, in: Jürgen Meyer (ed.), Charta der Grundrechte der Europäischen Union (3rd ed. 2011), Art. 2 para. 29. 97

See supra, IV. B. 1. b).

98

See Art. 55 (1) TEU.

99

For international law see supra, IV. B. 2., for German law see Müller-Terpitz (note 8), 339 with further references. 100

With the same result: Borowsky (note 96), Art. 2 para. 29; Jens Kersten, Das Klonen von Menschen (2004), 104.

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Despite the preceding analysis, the question regarding the personal scope of Article 2 CFREU still remains open. To answer this question a circumstance that has not been mentioned thus far needs to be taken into consideration: according to the Charter’s explanations,101 its right to life corresponds to Article 2 (1) ECHR.102 “In so far as th[e] Charter contains rights which correspond to rights guaranteed by [this Convention], the meaning and scope of those rights shall be the same as those laid down by the said Convention.”103 As described above, Article 2 (1) ECHR also refrains from any indication with regard to its personal scope. Consequently, in its decisions Vo v. France and Evans v. the United Kingdom the ECtHR explicitly refused to elaborate on the question whether the Convention’s right to life also applies to unborn human life in general and early human embryonic stages in particular.104 Instead, it argued that due to the lack of consensus amongst the Member States of the Council of Europe with regard to the ethical and legal status of (early) human embryos it would be impossible for the Court to formulate an overall point of view regarding this issue. It is most likely that the ECJ would take a similar approach when confronted with this legal question – not only because of Article 52 (3) CFREU, but also because of the deep-rooted dissent described by the ECtHR.105 Currently, this reluctance of the European Union and its institutions is already reflected by the secondary EU law described above. Thus, Article 2 CFREU itself may not be extended to the protection of (early) human embryos. The aforementioned considerations also apply to Article 3 (1) CFREU stipulating that “[e]veryone has the right to respect for his or her physical and mental integrity.” Nevertheless, it is worth noting that the Charter does not only grant this conventional right to the integrity of the person. It also amends this right by explicit norms and prohibitions regarding medicinal and biological issues. In particular, Article 3 (2)(b) CFREU sets out that the prohibition of eugenic practices, especially those aiming at the selection of persons, has to be respected in the fields of medicine and biology. This 101

See supra, note 95.

102

Christian Calliess, in: id./Matthias Ruffert (eds.), EUV AEUV (4th ed. 2011), EU-GRCharta Art. 2 para. 2 with further references. 103

See Art. 52 (3) CFREU.

104

See supra, IV. B. 2.

105

Nevertheless, it has to be mentioned that Art. 52 (3) CFREU does not prevent the EU to provide a more extensive protection. Different Silja Vöneky/Niels Petersen, Der rechtliche Status des extrakorporalen menschlichen Embryos: Das Recht der Europäischen Union, Europarecht (EuR) 41 (2006), 340, 351 with further references, who argue that Art. 2 CFREU is not applicable to human embryos in vitro at all.

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provision inevitably leads to the question whether it also outlaws a genetic method like PGD. However, the explanations to the European Charter militate against such an interpretation. According to these explanations, the prohibition of eugenic practices shall rule out the organisation and performance of selection programmes by Member States, for instance regarding systematic sterilisations, forced pregnancies or the obligation to choose a marriage partner from the same ethnic group. Eugenic practices undertaken by individuals, in particular via a genetic testing of human embryos in vitro, thus do not fall within the scope of this prohibition.106 Finally, the above analysis also influences the interpretation of Article 1 CFREU – the guarantee of human dignity:107 as it seems to be impossible to extend the personal scope of the right to life and physical integrity to human embryos in vitro, such an extension cannot be assumed with regard to the ‘meta-right’ constituting the ‘basis of fundamental rights’ – the protection of human dignity. The Charter’s explanations are silent on this question. In the Convention, a discussion on this sensitive issue was avoided. Be that as it may, attempts to commit the Charter’s drafters in either direction have been rejected.108 The EU Charter of Fundamental Rights was conceived as a compilation of individual rights within the framework of a supranational institution, unifying differing national ideas and concepts on the ethical and legal status of unborn human life. Therefore, one has to doubt that the ECJ would – were the question to arise – extend the expression ‘human’ to early stages of embryonic life as well.109 Moreover, it has to be stressed that this interpretation does not stand in contradiction to the latest judgment of the ECJ, which ruled out the patentability of human embryonic stem cells.110 Although the Court based its finding on the respect for human dignity and thus concluded that the concept of ‘human embryos’ within the meaning

106 See Borowsky (note 96), Art. 3 para. 44; Calliess (note 102), Art. 3 para. 14; Elisabeth Dujmovits, Die EU-Grundrechtecharta und das Medizinrecht, Recht der Medizin 8 (2001), 72, 77. 107

This provision reads as follows: “Human dignity is inviolable. It must be respected and protected”.

108

See Borowsky (note 96), Art. 1 para. 37.

109

Like here: Calliess (note 102), Art. 1 para. 14; Hans D. Jarass, Die EU-Grundrechte (2005), Sec. 8 para. 8; Vöneky/Petersen (note 105), 345. Different Christian Starck, Ist die finanzielle Förderung der Forschung an embryonalen Stammzellen durch die Europäische Gemeinschaft rechtlich zulässig?, EuR 41 (2006), 1, 12, who extends the guarantee of human dignity under EU law to human embryos from the moment of nuclear fusion or a similar incidence on. 110

See ECJ, Brüstle (note 3) and EC Directive 98/44.

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of Article 6 (2)(c) of Directive 98/44/EC must be understood in a wide sense,111 it nevertheless pointed out that the definition of a human embryo is a very sensitive social issue in many Member States, marked by their multiple traditions and value systems. Therefore, the Court refused to broach questions of a medical or ethical nature, but restricted itself to a legal interpretation of the relevant provisions of the Directive.112 All in all, the Charter’s fundamental rights once again confirm the weak legal protection of prenatal human life in the supranational law of the European Union.

C. Freedom to Provide Services as Limitation on National Legislation

Consequently, genetic testing of embryos is not and will probably not in the future be regulated by secondary legislation of the European Union and thus constitutes a social issue to be regulated autonomously by the respective Member States. Nevertheless, the subsequent law may have to respect other restrictions derived from supranational law. In particular, such restrictions could arise from the freedom to provide services as laid down in Articles 56 and 57 TFEU. According to the settled case-law of the European Court of Justice, medical care services fall within the scope of this fundamental freedom.113 In the past, this right has gained importance particularly with regard to access to medical or pharmaceutical services in other EU Member States.114 As the ECJ ruled in its decision Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan, the freedom to provide services is applicable even to a clinically assisted abortion, as long as this surgery is performed in accordance with the laws of the State in which the abortion is carried out.115 Thus, assisted reproductive measures including diagnostic services on early embryos should also, as long as performed in a 111

See ECJ, Oliver Brüstle (note 3), para. 34.

112

See ibid., para. 30. However, one has to admit that the Court develops a differing idea of the concept of human dignity: one referring to secondary law and one referring to primary law of the Charter. 113

ECJ, Joined Cases 286/82 and 26/83, Luisi and Carbone v. Ministero dello Tesoro, 1984 ECR 403, para. 16. 114 Id., Case C-368/98, Vanbraekel and Others, 2001 ECR I-5399, para. 38; id., Case C-157/99, Smits and Peerboms, 2001 ECR I-5527, para. 47. 115

Id., Case C-159/90, Society for the Protection of Unborn Children Ireland v. Grogan and Others, 1991 ECR I-4733, paras. 18 and 37.

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legal manner, be protected by Article 56 TFEU. Therefore, this provision, being applicable to an ‘active’ and a ‘passive’ freedom to provide services, in principle does not allow Member States to discourage or even prohibit their citizens to require reproductive services as legally offered by physicians in other Member States. However, the cross-border provision of services within the European Union may also, under certain conditions, be impeded or even restricted by national measures. Such restrictions, e.g. under national law, can be justified either via the category of “overriding requirements of general interest” as developed by the ECJ in its Cassis de Dijon jurisprudence116 or by Article 62 TFEU together with Article 52 TFEU.117 However, the national restriction must satisfy the aforementioned justifications in a proportional way. If a medical treatment such as PGD is admissible in the State in which it is performed, but not in the State where the patient seeking such a service has his or her habitual residence, the question may arise as to what extent the patient’s home State is allowed to hinder or even prohibit the use of such medical procedures, e.g. by banning advertising, specific travel bans or by threat of punishment. Unfortunately, the ECJ has not yet had the opportunity to decide on this question. However, the freedom to provide services and its significance for reproductive measures was subject of two national decisions. The first verdict, decided by the Irish Supreme Court in 1992,118 concerned a 14-year-old pregnant girl who had been raped. In order to protect the life of the unborn child, the Attorney General prohibited her departure from Ireland for a period of nine months by means of injunction. At the request of the pregnant girl, who invoked the freedom to provide services as granted by Article 56 TFEU, this injunction was set aside by the Irish Supreme Court. However, the Court did not base its decision on this argumentation, but on Irish law. This was different in ex parte Blood, decided by the English Court of Appeal in 1997:119 this case concerned a woman who had been denied permission by the British Human Fertilisation and Embryology Authority (HFEA) to perform a post 116

See id., Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein, 1979 ECR 649, paras. 8 and 14. 117 For further details see Hans D. Jarass, Elemente einer Dogmatik der Grundfreiheiten, EuR 35 (2000), 705, 716. 118 119

Irish Supreme Court, Attorney General v. X and Others, 5 March 1992, [1992] ILRM 401.

Court of Appeal, Civil Division, R v. Human Fertilisation and Embryology Authority, ex parte Blood, 6 February 1997, 2 All ER (1997), 687.

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mortem insemination with sperm of her dead husband, as this was prohibited under English law. The widow then sought permission to release the sperm in order to carry out such a post mortem insemination in another EU Member State (Belgium), where this form of reproductive treatment was admissible. The Court of Appeal quashed the HFEA’s decision because it did not take sufficient account of the woman’s passive freedom to provide services under EU law. In sum, neither of the two national decisions offers a precise idea of the scope of the freedom to provide services in reproductive contexts. Nevertheless, national legislation restricting this freedom with regard to embryo screening will in general be admissible, even though any justification for derogation from the fundamental principle of the freedom to provide services must be interpreted strictly and thus may be admissible only if there is a genuine and sufficiently serious threat to a fundamental interest of society.120 However, the competent national authorities must be allowed a margin of discretion within the limits imposed by the Treaty, particularly when restrictions are explained with reference to fundamental values enshrined in the national constitution, such as human dignity and the right to life.121 In relation to the protection of the unborn human life, a Member State providing such restrictions would try to put into effect an “overriding requirement of general interest” or “grounds of public policy, public security or public health” (Article 52 (1) TFEU). With regard to a prohibition or at least limitation of PGD being performed abroad, the restricting State would try to prevent the destruction of human life created by its citizens as a result of a chromosomal or genetic malfunction being revealed by genetic testing. Nonetheless, it should be emphasised that until now no Member State has adopted any legislative or other measures to prevent its citizens from procuring PGD services in other EU countries. Therefore, ‘PGD tourism’ has always been a reality. Despite the new legal position in Germany,122 it will certainly continue as – compared to the more liberal regulation in other EU Member States such as, for instance, Belgium123 – the new law takes a very restrictive approach.

120

See ECJ, Case C-54/99, Église de Scientologie, 2000 ECR I-1335, para. 17 with regard to the term ‘public policy’. 121

See id., Case 36/02, Omega, 2004 ECR I-9609, paras. 30–32.

122

See supra, III.

123

See Leopoldina (note 4), 22.

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VI. Conclusion The above analysis illustrates that the ethically sensitive and controversial issues surrounding assisted reproduction and the related aspect of genetic testing via PGD are prejudiced neither by the international law of the Council of Europe nor by the primary and secondary provisions of the European Union. Although international legal documents such as, in particular, the Biomedicine Convention and the ECHR recognise human embryos as entities which are able to enjoy some form of protection, they nevertheless do not grant individual human rights to the nasciturus, leaving this decision to the respective national legislators. Hence, international and supranational law in Europe leaves the definition of the (early) human embryo’s legal status and thus the issue of its protection in assisted procreation contexts (including the admissibility of prenatal genetic testing) to regulation at the national level. Consequently, PGD can be autonomously regulated by each State according to its ethical convictions and legal requirements. Due to the fundamental disagreement that still exists with regard to the protection of human embryos in vitro among the European Member States, this liberal attitude seems to be the right approach to this subject, since the attempt to unify national laws via international or supranational provisions would likely be unable to find acceptance at national level and to pacify these highly controversial topics. Furthermore, it should be kept in mind that the underlying ethical and religious attitudes are an expression of the different national constitutional identities of the Member States which the EU is required to respect under Article 4 (2) TEU. Thus, to come back to the introductory remarks:124 it is not the international or supranational level that influences the decision-finding and law-making processes with regard to assisted reproduction techniques and related diagnostic methods at national level, but vice versa.

124

See supra, I.

Reservations and the Determinative Function of the Human Rights Treaty Bodies KASEY L. MCCALL-SMITH(

ABSTRACT: A treaty body’s competence to determine the permissibility of a reservation elicits a wide spectrum of opinion. For years, many States and observers opposed any suggestion that a treaty body might be competent to adjudge a reservation impermissible. At the same time, States have engaged in ongoing dialogues with treaty bodies over the nature of their reservations, signifying some recognition that the topic in the treaty body forum is fair game. The necessity for recognising this competence stems from the passive approach historically taken by States on the issue of reservations to human rights treaties. This passivity has contributed to the general incoherence of the human rights treaty system as evidenced by the large number of seemingly invalid reservations which remain attached to the core human rights treaties. The recent endorsement of this competence by the ILC is clearly a boon to human rights, yet it yields only cautious optimism in light of the non-binding nature of treaty body jurisprudence. This article outlines the increasingly dynamic role of human rights treaty bodies and argues that recognising the determinative function of these organs increases coherence in the international human rights system by providing definitive views on the permissibility of reservations. KEYWORDS: human rights treaty, reservations, treaty body, determinative function, impermissible reservations, invalid reservations, International Law Commission, Human Rights Committee, severability

I. Introduction For three decades international lawyers have grappled with the role of human rights treaty bodies with regard to reservations.1 Treaty body competence to deter(

Occasional lecturer and tutor in Public International Law at the University of Edinburgh. The author would like to thank Professor Alan Boyle and Professor Thomas Giegerich for their comments in the preparation of this article. Many thanks, also, to the peer reviewers for their insightful comments. 1

See generally Thomas Giegerich, Reservations to Multilateral Treaties, MPEPIL, available via: http://www.mpepil.com (accessed on 4 February 2012); Ineke Boerefijn, Impact on the Law on Treaty Reservations, in: Menno T. Kamminga/Martin Scheinin (eds.), The Impact of Human Rights Laws on

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mine the permissibility of a reservation elicits staunch support on both sides of the issue as well as a spectrum of opinion between the two extremes. For years many States have opposed any suggestion that a treaty body might be competent to assess the permissibility of a reservation. At the same time, States have engaged in an ongoing dialogue with treaty bodies over the nature of their reservations, suggesting some recognition that a discussion of reservations in the treaty body forum is accepted as an essential part of their interpretive functions. Adding to the general body of opinion on the role of the treaty bodies, the International Law Commission’s (ILC’s) recent Guide to Practice on Reservations to Treaties2 supports the long-standing claim of treaty bodies that they are competent to serve in a determinative capacity and therefore assess the permissibility of reservations. The necessity for recognising treaty body competence to assess reservation permissibility stems from the passive approach historically taken by States on the issue of reservations as well as the need to maintain an interpretive authority at the international level. Furthermore, the unsettled legal effect of an impermissible reservation has at best prevented coherence in the United Nations (UN) human rights treaty system and at worst negatively impacted implementation of convention obligations.3 While practice has shown that the permissibility of a reservation to a human rights treaty has little bearing on the treaty relations between States,4 the lack of a conclusive determination on permissibility directly impacts the implementation of human rights protections, or lack thereof, at the domestic level because the obligations taken on by a State are often obscured by reservations.5 This article seeks to demonstrate the General International Law (2009), 63; Ineta Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (2004); Catherine Redgwell, Reservations to Treaties and Human Rights Committee General Comment No. 24 (52), International and Comparative Law Quarterly (ICLQ) 46 (1997), 390; Liesbeth Lijnzaad, Reservations to UNHuman Rights Treaties: Ratify and Ruin? (1995); William A. Schabas, Reservations to Human Rights Treaties: Time for Innovation and Reform, Canadian Yearbook of International Law 32 (1994), 39. 2 International Law Commission (ILC), Report of the International Law Commission on its 63rd session, Guide to Practice on Reservations with Commentary, UN Doc. A/66/10/Add.1 (2011), 1 et seq. (ILC Guide to Practice). 3 Yogesh K. Tyagi, The Conflict of Law and Policy on Reservations to Human Rights Treaties, British Yearbook of International Law (BYIL) 71 (2000), 181; Catherine Redgwell, Universality of Integrity? Some Reflections on Reservations to General Multilateral Treaties, BYIL 64 (1993), 245. 4

Tyagi (note 3), 213–219; Schabas (note 1), 63–68.

5

Lijnzaad (note 1), 4.

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positive influence on international human rights law served by recognising the determinative competence of treaty bodies. Initially, the rules governing reservations will be examined to outline the glaring gap which could be filled by the treaty bodies. This examination will be followed by an overview of the treaty bodies and their role as supervisory mechanisms. To develop the substance of the claim that treaty bodies are competent to serve in a determinative capacity, section IV will consider the evolving practice of the treaty bodies and section V will provide an overview of State practice. Finally, the relevant ILC guidelines will be introduced as further evidence of the evolving recognition of the determinative capacity of the treaty bodies as well as the doctrine of severability. Ultimately, this article concludes that many factors support the determinative function of human rights treaty bodies, which, in turn, promotes greater coherence in the international human rights system.

II. Applying the Vienna Convention Rules to Reservations By the early 1980s, it was clear from reservations made to the expanding UNfacilitated human rights treaties that seemingly impermissible reservations elicited little attention from State parties. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),6 the International Covenant on Civil and Political Rights (ICCPR),7 the International Covenant on Economic, Social and Cultural Rights (ICESCR)8 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)9 were all subjected to reservations of widely varying effect on the obligations contained therein. The then-lack of State response to even the most blatantly impermissible reservations “[undermined]

6 International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, UNTS 660, 195 (ICERD). 7

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR). 8

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS 993, 3 (ICESCR). 9

Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, UNTS 1249, 13 (CEDAW).

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respect for international human rights law and [impeded] progress in implementing the rights guaranteed.”10 A primary factor facilitating this State apathy stems from the normative lacunae in the reservations regime of the 1969 Vienna Convention on the Law of Treaties (VCLT).11 The VCLT is indifferent to subdivisions of international law and creates a ‘one-size-fits-all’ approach for addressing reservations in Articles 19–23 VCLT which serves as the residual reservations regime governing reservations to all treaties where a treaty-specific rule has not been included. Article 19 VCLT proscribes: reservations prohibited by the treaty; reservations extraneous to those specified by the treaty; and reservations not compatible with the object and purpose of the treaty. Article 19 VCLT is the source of several critical uncertainties with regard to human rights treaties. As many authors have noted,12 the subsequent VCLT reservations Articles address the legal effect of valid13 reservations and only in the context of relationships between States. The VCLT works from the presumption that States will only formulate valid reservations.14 The Article 19 (c) VCLT object and purpose test has operated as the single residual reservation assessment test since the adoption of the VCLT and is based on the 1951 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide15 advisory opinion issued by the International Court of 10

Dinah Shelton, State Practice on Reservations to Human Rights Treaties, Canadian Human Rights Yearbook 1 (1983), 205, 234. 11

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT).

12

Anthony Aust, Modern Treaty Law and Practice (2nd ed. 2007), 146; see also, ILC Guide to Practice (note 2), commentary on 4.5.1, para. 20; Edward T. Swaine, Reserving, Yale Journal of International Law (Yale JIL) 31 (2006), 307, 321; Anja Seibert-Fohr, The Potentials of the Vienna Convention on the Law of Treaties with Respect to Reservations to Human Rights Treaties, in: Ziemele (note 1), 183, 204; Tyagi (note 3), 194. 13 Validity is the term adopted by the ILC to “describe the intellectual operation consisting in determining whether a unilateral statement made by a State […] and purporting to exclude or modify the legal effect of certain provisions of the treaty in their application to that State […] was capable of producing the effects attached in principle to the formulation of a reservation.” Therefore, a reservation must be permissible to be valid. See ILC Yearbook 2006, UN Doc. A/61/10 (2006), 324, para. 2 of the general introduction to Part 3 of the draft guidelines. 14 ILC, Text of the draft guidelines constituting the Guide to Practice on Reservations to Treaties, with commentaries, available at: http://untreaty.un.org/ilc/sessions/62/GuidetoPracticeReservations_ commentaries(e).pdf (accessed on 5 February 2012) (ILC Draft Guide to Practice), guideline 3.1, commentary para. 5. 15

ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, 15, 29.

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Justice (ICJ). At best the test is vague, though some have attempted to provide guidance on its application both to general multilateral treaties16 and in specific response to human rights treaties;17 what is most evident is that the test is not static.18 Despite is vagaries, courts, States and treaty bodies have demonstrated that the object and purpose test is viable despite the fact that neither the Genocide Opinion nor the VCLT provide any guidance on how to apply the test or on which entity should use the test to provide a final view on the validity of a reservation.

A. Objections to Reservations to Human Rights Treaties

Article 21 VCLT has been interpreted as the loose basis of the State-policing system by delineating the legal effect of reservations and objections thereto. A logical reading of Article 21 VCLT suggests that it applies only to objections made to valid reservations as it expressly outlines in paragraph 1 that it applies to reservations “established with regard to another party in accordance with articles 19, 20 and 23.”19 Beyond human rights treaties, however, the traditional approach has been that those reservations to which no objection has been made are accepted as valid by virtue of ‘tacit acceptance’, regardless of permissibility,20 which is the premise of Article 20 (5) VCLT. This practice emphasises the political nature of international law-making by placing the ultimate decision on permissibility squarely with the State. The idea that a reservation is automatically accepted, and therefore permissible in the absence of an objection, has greater purchase in reciprocal obligation treaties where objections, or 16

Alain Pellet, Tenth Report on Reservations, UN Doc. A/CN.4/558/Add.1 (2005), para. 81.

17

Françoise Hampson, Specific Human Rights Issues, Reservations to Human Rights Treaties, Final Working Paper, UN Doc. E/CN.4/Sub.2/2004/42 (2004), para. 49. 18

Pellet (note 16), para. 83.

19

Aust (note 12), 146, citing Richard D. Kearney/Robert E. Dalton, The Treaty on Treaties, American Journal of International Law (AJIL) 64 (1970), 495, 512. 20 For recent debate within the ILC see ILC Guide to Practice (note 2), commentary on 4.5.1; ILC, Report of the work of the 62nd session of the ILC, ILC Yearbook, vol. II (part two), UN Doc. A/65/10 (2010), 175–181, summarising the historical debates surrounding tacit acceptance during the original ILC study leading to the adoption of the VCLT through the most recent examination of the idea by the ILC; see also Swaine (note 12), 312 et seq.; Jan Klabbers, Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties, Nordic Journal of International Law (Nordic JIL) 69 (2000), 179, 180–183; Redgwell (note 1), 405–406; Daniel Hylton, Default Breakdown: The Vienna Convention on the Law of Treaties’ Inadequate Framework on Reservations, Vanderbilt Journal of Transnational Law 27 (1994), 419, 439.

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lack thereof, create definitive legal effects on the treaty commitments owed between the reserving State and the objecting State. However, reciprocity is a characterisation that is generally not applied to human rights treaties as they create rights and obligations for the benefit of third parties, individuals, rather than for States inter se.21 Therefore, the State-to-State treaty relationship has little relevance to human rights treaties, which create State-to-human being relationships.22 In the end, the striking omission in the VCLT reservations regime is the lack of acknowledgement of impermissible reservations, thus the practice of objecting to reservations to human rights treaties based on impermissibility has developed in conjunction with the rules rather than as the exercise of a specific reading of the rules. Present practice sees States objecting to reservations on any grounds, including valid reservations: the premise of Article 21 VCLT and the political feature23 of the reservations regime. This article is specifically concerned with the practice of objecting to reservations that are impermissible due to incompatibility with Article 19 (c) VCLT and those reservations which are otherwise invalid. It is these reservations that require a determination of compliance with the object and purpose of the treaty. In keeping with the preferred language of the ILC,24 the term ‘invalid’ will be employed to refer to reservations objected to for any reason pointing to the legal unacceptability of the reservation, including those reservations that are specifically viewed as ‘incompatible’ or ‘impermissible’ for failure to meet the object and purpose test as well as 21

ECtHR, Cyprus v. Turkey, Judgment of 10 May 2001, RJD 2001-IV, 78, para. 239; Inter-American Court of Human Rights (IACtHR), Effect of Reservations on the Entry Into Force of the American Convention on Human Rights, Advisory Opinion of 24 September 1982, Series A, No. 2, para. 29; IACtHR, Hilaire v. Trinidad and Tobago, Preliminary Objections, Decision of 1 September 2001, Series C, No. 80, para. 95. See also, Ryan Goodman, Human Rights Treaties, Invalid Reservations, and State Consent, AJIL 96 (2002), 531, 537; Redgwell (note 1). 22

European Commission of Human Rights (ECmHR), Austria v. Italy, Decision of 11 January 1961, Yearbook of the European Convention on Human Rights 4 (1961), 116, 140; IACtHR, Effect of Reservations (note 21), para. 29; IACtHR, Hilaire v. Trinidad and Tobago (note 21), para. 95. See also ILC Draft Guide to Practice (note 14), guideline 4.2.5, commentary para. 4, recognising the existence of the State-human being relationship in human rights treaties. 23 On reservations as a political tool see Aust (note 12), 133–134; Swaine (note 12), 312; Oona Hathaway, Do Human Rights Treaties Make a Difference, Yale Law Journal 111 (2002), 1935, 1952; Jean K. Koh, Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision, Harvard International Law Journal 23 (1982–1983), 71. 24

The use of the terms ‘invalid’ and ‘impermissible’ were thoroughly debated within the ILC. See ILC (note 13), 324, para. 2 of the general introduction to Part 3 of the Draft Guide to Practice.

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those that are over-broad25 or attempt to subordinate international obligations to domestic law.26 Some observers argue that impermissible reservations are void ab initio and therefore objections are unnecessary.27 However, this view does not have universal acceptance28 and this article therefore assumes that a determination of validity is necessary to secure a picture of the treaty obligations undertaken. Tangential doctrines including permissibility and opposability have traditionally been employed by States, particularly in nonhuman rights treaties, to outline the legal effect of objections based on invalidity or impermissibility and have developed as a form of lex ferenda; though practice has proved that these doctrines produce less than definitive results in the context of human rights treaties and as a result are rarely relied upon by States objecting to reservations thereto. Severance of invalid reservations, see infra, VI. B, is another legal effect outlined, particularly by the European Court of Human Rights (ECtHR), the Human Rights Committee (CCPR) and, most recently, the ILC. Due to the lack of guidance on the legal effect of the prevailing practice in the context of human rights treaties, States’ objections have provided little impetus in reserving States to remove offending reservations. Though reservations to human rights treaties have triggered much debate,29 the reality is that few States actually formulate objections;30 however, objections based on invalidity have steadily increased over the past two decades. The point to glean from 25 Often called ‘sweeping’ reservations. The term is attributed to Redgwell, see Redgwell (note 1), 391, but is echoed by other writers including Françoise Hampson, Working paper submitted pursuant to Sub-Commission decision 1998/113, UN Doc. E/CN.4/Sub.2/1999/28 (1999), para. 25(iii). Other authors have referred to this type of reservation as an ‘across-the-board’ reservation; see, for example, Karl Zemanek, Alain Pellet’s Definition of a Reservation, Austrian Review of International & European Law (ARIEL) 3 (1998), 295. The ILC also references the ‘across-the-board’ reservation in its ILC Guide to Practice (note 2), guideline 1.1, commentary paras. 17–21. 26

In violation of Art. 27 VCLT: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”; see also Hampson (note 17), para. 56. 27 Bowett offers the most in-depth defense of this proposition and his work serves as the basis of most contemporary arguments on the issue, see Derek W. Bowett, Reservations to Non-Restricted Multilateral Treaties, BYIL 48 (1976–1977), 67, 84; see also, ILC, ILC Yearbook 1995, UN Doc. A/50/10 (1995), para. 418. 28

Swaine (note 12), 315; see also comments by Germany in ILC, Reservations to Treaties, Comments and Observations Received from Governments, UN Doc. A/CN.4/639 (2011), paras. 127–128. 29 See discussion by the ILC, Commentary on Draft Guideline 3.1.12 on Reservations to Treaties, Report to the General Assembly, UN Doc. A/62/10 (2007), 113. 30

Aust (note 12), 125–126; see also Goodman (note 21), 537.

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contemporary objection practice is that even in the face of an objection by another contracting State on the basis of invalidity, the reserving State cannot be compelled to withdraw a reservation from a human rights treaty under the VCLT rules. The reality is that most States do nothing to contradict an invalid reservation because they have little incentive to do so31 and, thus, invalid reservations stand.

B. VCLT Silence on Treaty Bodies

Neither the ICJ in its Genocide Opinion nor the ILC in its development of the law of treaties contemplated the proliferation of treaty bodies and their potential as monitors of treaty compliance, including determining the validity of reservations. There is no mention of the function of treaty-specific monitoring mechanisms within the VCLT. Though the ICERD, the ICCPR and the ICESCR were concluded prior to the VCLT,32 the constituent treaty bodies only began to operate after its adoption. This underscores the point that international law, and human rights law in particular, are dynamic and evolving and therefore developments in these fields must be considered in order to maintain a coherent international system. The VCLT does not specifically invite only States to evaluate reservations in the first instance; thus there is no reason to assume that a State’s acceptance (tacit or otherwise) or objection in conjunction with the VCLT rules will preclude a treaty body from taking up the issue,33 a point noted frequently by the regional human rights organs. The treaty bodies offer an alternative reservation monitoring mechanism to State parties which is essential in light of the nature of human rights treaties and the reluctance of States to be vigilant against invalid reservations.

III. The Treaty Bodies Treaty bodies have a duty to monitor States’ compliance with treaty obligations. In the first instance, all of the treaty bodies examine States’ periodic reports. Additional 31

Swaine (note 12), 324; Goodman (note 21), 533.

32

The treaties were adopted on 21 December 1965, 16 December 1966, and 16 December 1966, respectively. 33

The language of Art. 20 (2) VCLT points to “states and the object and purpose” but does not indicate that States alone determine compliance with the object and purpose (emphasis added).

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quasi-judicial functions have been established and widely accepted as part of the UN human rights regime in an effort to further realise the rights set forth in the Universal Declaration on Human Rights (UDHR)34 and the core UN human rights treaties in an effort to promote a global human rights culture. These functions necessitate assessing the validity of reservations, the determinative function, in order to provide a complete picture of a State’s human rights commitments. When interpreting treaties, Article 31 (2)(b) VCLT requires consideration of “any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty;” this naturally extends to reservations as accompaniments to instruments of ratification or accession.35 Treaty interpretation is integral to the treaty bodies’ remits if they are to legitimately evaluate State compliance with treaty obligations.36 The point of contention between some States and treaty bodies is who between them has the ultimate power to determine whether a reservation is invalid. As the “central pillars in the United Nations human rights system,”37 it is crucial to the human rights system that treaty bodies actively fulfil their monitoring function since it is only recently that some States appear to have begun to systematically monitor reservations. As observed by Hampson, “the principal way of ensuring compliance [with human rights treaties] is through monitoring” because the treaty bodies “are, in a sense, representing the interests of all States when they exercise their functions.”38 Thus, the State practice of objecting to invalid reservations is most often replaced by treaty body monitoring in the context of human rights treaties due to the problems which permeate the monitoring system envisioned by States applying the VCLT alone. It must be reiterated that treaty bodies do not lay down the law: they interpret the law. States have negotiated and debated the treaty texts and have chosen to include 34

Universal Declaration on Human Rights, GA Res. 217 A (III) of 10 December 1948.

35

Noted by Elena A. Baylis, General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties, Berkeley Journal of International Law 17 (1999), 277, 314. 36 Boerefijn (note 1), 96; Hampson (note 17), para. 86; CCPR, General Comment 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 18. 37 Marrakech Statement on Strengthening the Relationship between NHRIs and the Human Rights Treaty Bodies System, Marrakech, Morocco (2010), para. 5, available at: http://www2.ohchr.org/ english/bodies/HRTD/hrtd_process.htm (accessed on 4 February 2012). 38

Hampson (note 17), para. 47.

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mechanisms which apply the rule of law equally to those States opting to recognise the authority of these bodies by consenting to become State parties. This does not equate to ‘world government’ as has been forecasted by opposition to the treaty body system.39 The aim of the treaty body system has never been to create an adjudicator above the State; it is to facilitate the existence of a rights-centric forum where a nonbiased monitoring mechanism can ensure that all State parties are abiding by their human rights commitments. While some question the legitimacy of such a role, one only need look to the treaty articles to see that the monitoring role is embedded in each core human rights treaty, and States have consented to monitoring by virtue of becoming a treaty party. The more pertinent question is: what does the monitoring role include? Treaty bodies serve an essential function as they alone are completely devoted to monitoring State implementation of obligations undertaken as treaty members. The flexibility of the VCLT warrants some form of a back-stop to prevent the rules from being bent too far. As argued by Åkermark and Mårsäter: “the more treaty flexibility is available, the more important it is to have institutionalised mechanisms […] for a continuous re-evaluation of the flexibility devices.”40 Treaty bodies are the independent, institutionalised mechanisms that were created specifically to fulfil such a role.41 They interpret the obligations set forth in the treaties on an ever-evolving world stage where each State implements its obligations based on its interpretation of the treaty. If there is no common interpretive forum,42 treaty obligations are at the mercy of each State’s individual interpretation. Çali highlights that there is “an added institutional 39

Similar arguments have been lodged against the WTO, see Michael Moore, The Backlash against Globalization?, speech presented in Ottawa, Canada, on 26 October 2000, available at: http://www. wto.org/english/news_e/spmm_e/spmm39_e.htm (accessed on 4 February 2012). 40

Sia S. Åkermark/Olle Mårsäter, Treaties and the Limits of Flexibility, Nordic JIL 74 (2005), 509.

41

It is important to note that while members of the treaty bodies are nominated by their States, they are bound to act in a personal capacity. The independence of the treaty bodies is an essential characteristic and integral to successfully fulfilling their duties. See Poznan Statement on the Reforms of the UN Human Rights Treaty Body System, Poznan, Poland, 28–29 September 2010, paras. 19–21, available at: http://www.nottingham.ac.uk/hrlc/documents/projectsummaries/pdfs/poznanstatement.pdf (accessed on 4 February 2012); CEDAW Committee, Report on its 41st session, Decision 44/1, UN Doc. A/63/ 38, Supp. 38 (2008), ch. I, 88. The author acknowledges that the independence and expertise of treaty body members has been questioned. However, the present examination is limited to the indicia set forth by the treaties themselves thus the line of inquiry into the true nature of those who sit on the treaty bodies is outwith its scope. 42

There is arguably some room for States to exercise this interpretative role in the forum of a Meeting of the Parties or Conference of the Parties. However, to date States have not taken up this opportunity.

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531

value to international interpretive authorities that individual domestic interpretive authorities individually or collectively cannot secure.”43 As interpretive authorities, the treaty bodies serve to entrench human rights at the global level by applying the common language of human rights using interpretations intended to transcend national boundaries, which is the ultimate goal of human rights treaties. The texts of the various human rights treaties outline the respective treaty body competencies, including reviewing periodic reports, consideration of individual communications, consideration of inter-State communications and/or initiation of inquiries. There is a general duty of good faith to cooperate with the treaty body as recognised by the general principles of treaty law.44 Therefore it is argued that treaty bodies are the primary international interpreters of human rights treaty law. The interpretive authority of the treaty bodies should be understood “as the authority to specify, clarify and infer specific standards of policy and action from the general international human rights law clauses enshrined in international human rights treaties.”45 Reviewing periodic reports of the State parties and issuing general comments are the common features shared by all of the treaty bodies. The importance of reviewing periodic reports must not be undervalued; it creates an avenue for the treaty bodies to develop a dialogue with State parties as they work to impart a global interpretation of treaty obligations. Thus, at the very least, each of the treaty bodies is obligated to do the following: – Receive “reports on measures [the State parties] have adopted which give effect to the rights recognized”46 by the corresponding treaty; – “The Committee shall study the reports submitted by the States Parties […] It shall transmit its reports, and such general comments as it may consider appropriate.”47

43

Başak Çali, The Legitimacy of International Interpretive Authorities for Human Rights Treaties: An Indirect-Instrumentalist Defense, in: Andreas Føllesdal/Johan K. Schaffer/Geir Ulfstein (eds.), The Legitimacy of International Human Rights Treaties (forthcoming), 6, electronic copy available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948415 (accessed on 4 February 2012). 44

Art. 26 VCLT. Also typically noted within each of the treaty texts.

45

Çali (note 43), 4.

46

Art. 40 ICCPR.

47

Ibid.

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The above quotes are taken directly from Article 40 ICCPR but are repeated almost verbatim in the other core human rights treaties.48 The practice of issuing general comments has developed into perhaps one of the most significant, and subsequently controversial, functions of the treaty bodies. The value of the general recommendation/comment must be identified as a distinct form of communication from the other ways in which the treaty bodies engage with a State. Unlike monitoring reports or reviewing individual communications, these represent the primary opportunity of the treaty bodies to enunciate their interpretation of treaty obligations to the entirety of States, rather than in a bilateral communicative process.49 General comments are directed to all State parties, summarise the experience the committee has gained reviewing the periodic reports and focus the attention of the State parties on matters that would improve implementation of the treaty obligations.50 Though several general comments have been issued on the specific topic of reservations, reservation examination is most often a feature of reviewing periodic reports51 as this is the only mandatory supervisory function of each treaty body in its relation to the State parties that does not require a further recognition of competency by the States. Consideration of individual communications is a quasi-judicial function available to eight of the nine treaty bodies upon the requisite recognition of competency. This authorises the treaty body to receive communications – also termed ‘complaints’ – from individuals or groups of individuals (such as those brought by non-governmental organisations). Generally, this competency must be affirmed by a State party by a dec48 The most notable difference being that in a majority of the treaties the use of ‘general recommendations’ is substituted for ‘general comments’. See Art. 9 ICERD; Arts. 16, 19 ICESCR; Arts. 18, 21 CEDAW; Art. 19 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS 1465, 85; Arts. 44, 45 Convention on the Rights of the Child, 20 November 1989, UNTS 1577, 3; Art. 74 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, UNTS 2220, 3; Art. 36 Convention on the Rights of Persons with Disabilities, 13 December 2006, UNTS 2515, 3; Art. 29 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, UN Doc. A/RES/61/177 (2006). 49 On this point see Nigel Rodley, United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementary or Competition?, Human Rights Quarterly (HRQ) 25 (2003), 882, 887. 50 Philip Alston, The Historical Origins of the Concept of ‘General Comments’, in: Henry J. Steiner/ Phillip Alston/Ryan Goodman (eds.), International Human Rights in Context: Law, Politics, Morals (3rd ed. 2008), 873, 876. 51

Boerefijn (note 1), 63.

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laration of consent pursuant to the articles of the treaty or by the ratification of an optional protocol that supplements the original treaty. It is in the process of evaluating individual complaints that a treaty body might also have occasion to evaluate the validity of a reservation. These instances of reservation review have been particularly controversial, particularly in the instance where the State has tried to exempt the subject-matter under review from the examination process, as in the Rawle Kennedy Case52 (see infra, IV. B). Part of the idea behind submitting the assessment of reservations to independent, specialist bodies is to avoid the inevitable political concerns of States53 and to support an alternative to resort to judicial organs with varying jurisdictional impediments. The treaty bodies are the one constant for each of the human rights treaties. The processes of the treaty bodies are largely indifferent to the positions of State parties as they, through their various functions, address States individually in relation to their obligations under specific treaties.54 The growing pains accompanying the development of the international human rights system indicate that, when there are so many different views to be taken into account, independent, expert supervisory organs may provide the greatest opportunity for a competent assessment of treaty obligation implementation, which undoubtedly includes giving opinions on these ‘living instruments’.

IV. Analysis of Evolving Practice An important purpose of the treaty bodies has always been and remains opening and maintaining human rights dialogues with States.55 These dialogues can be fol-

52

CCPR, Rawle Kennedy v. Trinidad and Tobago, CCPR Communication No. 845/1999, Decision of 31 December 1999, UN Doc. CCPR/C/67/D/845/1999 (1999). 53 Goodman (note 21), 537; Pierre-Henri Imbert, Reservations to the ECHR Before the Strasbourg Commission: the Temeltasch Case, ICLQ 33 (1984), 558, 585, 591, specifically referring to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR). 54

Matthew Craven, Legal Differentiation and the Concept of the Human Rights Treaty in International Law, European Journal of International Law (EJIL) 11 (2000), 489, 510–511. 55

See discussions by Martin Scheinin, International Mechanisms and Procedures for Monitoring, in: Catarina Krause/Martin Scheinin (eds.), International Protection of Human Rights: A Textbook (2009), 601, 604 et seq.; Swaine (note 12), 360; Laurence Helfer, Not Fully Committed? Reservations,

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lowed in any number of reports emanating from the periodic reporting process under the core human rights treaties. As we will see, the treaty bodies are increasingly using more stringent language in their reservation dialogues, albeit not always the strict language of determination, such as ‘invalid’, ‘impermissible’ or ‘incompatible’. In analysing the reports and recommendations of the treaty bodies from their inception to the present it is obvious that reservations were a domain approached with caution in the early days of the periodic reporting system. Time has increased the vociferousness of the treaty bodies in their assessment of reservations though it must be emphasised that this increased sensitivity toward reservations has been extremely measured and in line with the general progression of the international community on the issue. From the outset of reviewing treaty body practice, one undercurrent of opposition must be acknowledged. This opposition argues that recognition of the determinative function of treaty bodies at this stage in the development of the international regime allows them to review the validity of reservations years after ratification and therefore prejudices States which ratified in the early days of a convention without the benefit of time to better research the impact of a well-defined reservation.56 This argument may be deflected by looking to the regional systems and their approach to reservations which have been ruled impermissible.57 It is also the nature of the global human rights system that States make incremental steps in the field of human rights, thus earlier reservations may eventually become redundant. The positive aspect of the flexibility found in the VCLT is that it allows for the evolution of law. This concept is reflected in Article 31 (3)(b) VCLT where subsequent practice accepted by the parties is acknowledged as a tool of treaty interpretation. As human rights norms become more engrained in the mainstream international legal project it is logical to assume that reservations made in the early days of core human rights treaties will lose their original purpose. Risk, and Treaty Design, Yale JIL 31 (2006), 367, 381; Philip Alston, Appraising the United Nations Human Rights Regime, in: id. (ed.), The United Nations and Human Rights: A Critical Appraisal (1992), 1, 5. 56

Ronald St. John Macdonald, Reservations under the European Convention on Human Rights, Revue Belge de Droit International 21 (1988), 429, 432; Imbert (note 53), 589, specifically referring to the ECHR; id., Reservations and Human Rights Conventions, Human Rights Review 6 (1981), 28. 57 For example in ECtHR, Belilos v. Switzerland, Judgment of 29 April 1988, Series A, No. 132, Sec. 50, para. 47, the Court opined that though the declaration/reservation by Switzerland had been in place for several years without an objection from another State party, “[t]he silence of the depositary and the Contracting States does not deprive the Convention institutions of the power to make their own assessment”.

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A. Early Treaty Body Approaches to Reservations

As indicated previously, only four of what are now referred to as the core UN human rights treaties were in force throughout the 1980s. The focus of the early treaty body activity on reservations is thus limited to the Committee on the Elimination of Racial Discrimination (CERD), the CCPR and the CEDAW Committee. The ICESCR was initially monitored by ECOSOC but the Committee on Economic, Social and Cultural Rights (CESCR) was ultimately established in 1985.58 The following is an admittedly limited overview of the main reservations practice of these bodies as viewed by the CERD and CEDAW Committee leading up to the CCPR’s divisive General Comment 24. It is provided merely as a backdrop for the increasing activity of the treaty bodies in relation to reservations. In 1978, the CERD considered the question of reservations and determined that in the course of monitoring compliance with the treaty it […] must take the reservations made by the State parties at the time of ratification or accession into account: [because] it had no authority to do otherwise. A decision – even a unanimous decision – by the Committee that a reservation is unacceptable could not have any legal effect.59

The Committee viewed its hands as being tied by States’ reservations regardless of the extent to which the reservations might offend the object and purpose of the treaty. The CERD’s then-reluctance to press its view on reservation validity was undoubtedly based on several factors prevailing at that time.60 Not only were the Committee’s responsibilities subjected to the strictures of the ICERD text but, unlike subsequently negotiated human rights treaties, ICERD contains a provision on reservation compatibility in Article 20 (2) which provides: A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it.

58

ECOSOC Res. 1985/17 of 28 May 1985.

59

CERD, Report on the 17th Session, UN Doc. A/33/18 (1978), para. 374.

60

Shelton (note 10), 230 et seq.

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The ICERD adopted the object and purpose test which was coursing through the ILC drafting committee on the VCLT during the same formative time period and supplemented it with a mathematical test that, if met, would render the reservation incompatible with the treaty. The treaty body was a ‘considerable innovation’ at the time so it was not surprising that the CERD had trepidation about asserting a determinative competence, particularly in light of the more stringent textual and interpretive restrictions than latterly created human rights treaty bodies.61 Over and above the difficult position of the CERD, the CEDAW Committee was faced with a surfeit of reservations, including many of dubious validity. Ten years after the CERD determined that it must defer to States on reservations questions, the reservation situation led the CEDAW Committee to address reservations in its 1987 General Recommendation 4 when it “[e]xpress[ed] concern in relation to the significant number of reservations that appeared to be incompatible with the object and purpose of the [CEDAW].”62 Seeing little progression on invalid reservations in the following years, it issued another call for States to reconsider withdrawing reservations to CEDAW in 1992 in preparation for the World Conference on Human Rights.63 At the time, the Committee did not argue that it had determinative capacity, yet its reports decidedly reveal the Committee’s views on permissibility. The CEDAW efforts now appear pale by comparison to the stand taken by the CCPR just two years later.64 While these early, reticent attempts to address invalid reservations were necessary, the evolving role of the treaty bodies as the primary interpreters of the core treaties was not yet secure at the dawn of the 1990s. All the while, additional human rights treaties were concluded and further treaty bodies created. An increasing number of States were ratifying the first four treaties as well as the newest additions, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC). With each new treaty came a further requirement that State parties report on their progress in implementing 61

Ibid., 230.

62

CEDAW Committee, General Recommendation 4, UN Doc. A/42/38 (1987).

63

Id., General Recommendation 20, UN Doc. HRI/GEN/1/Rev.9 (vol. I) (2008), 200.

64

For a thorough discussion of early CEDAW Committee action see Hanna Beate Schöpp-Schilling, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women: An Unresolved Issue or (No) New Developments, in: Ziemele (note 1), 3, 16–17.

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international human rights thus the supervisory role of the treaty body system was growing; all the while, the number of questionable reservations mounted.

B. General Comment 24 and its Progeny

The competence of the treaty bodies to assess the validity of reservations is derived directly from the reporting procedure.65 Arguably, State parties, at least to the ICCPR, generally accepted the treaty body’s interpretive authority with respect to reservations in the early 1990s as the CCPR had been engaged in evaluating reservations for several years without objection from States.66 The tipping-point that brought the issue to the fore was the controversial General Comment 24 on issues relating to reservations to the ICCPR, issued by the CCPR in 1994.67 General Comment 24 was formulated in specific response to the great number of reservations that were attached to the ICCPR, which was, at the time, 150 reservations of varying significance made among 46 of the then 127 State parties.68 First addressing the types of reservations threatening the coherence of the treaty regime, the CCPR indicated that reservations offending peremptory norms or customary international law were not compatible with the object and purpose of the ICCPR and it provided a laundry list of ICCPR protections against which no reservation could be deemed valid.69 The most radical feature of the comment was the assertion that treaty bodies were competent to determine the permissibility of reservations. Specifically invoking principles of general international law and particularly the VCLT, the CCPR outlined that the traditional reciprocal nature of treaties was not present in human rights treaties and therefore: It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and 65

Boerefijn (note 1), 86.

66

Baylis (note 35), 278.

67

CCPR (note 36).

68

Ibid., para. 1.

69

Ibid., para. 8.

538 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 in part because it is a task that the Committee cannot avoid in the performance of its functions.70

This “interpretive necessity”71 assertion departed from the traditional VCLT approach to general international treaties, whereby the primary reservations interaction took place only between States. Human rights treaties, as mentioned previously, represent a different type of treaty where States owe obligations to third parties rather than inter se. This was not the first instance where the inappropriateness of leaving the determination of the validity of a reservation to a human rights treaty to the mercy of States was highlighted. Previously, the International Court of Justice had pointedly indicated that there are issues that should not be left to the State to decide, including the interpretation of the terms of a reservation.72 Similarly, the ECtHR in Belilos v. Switzerland asserted its role as a treaty supervisory organ with the capability of assessing the validity of a reservation independent of the opinions of parties to the ECHR.73 Belilos was particularly influential in that it introduced the concept of severability (see infra, VI. B), which proposed to sever the impermissible reservation from the State’s consent to be bound to the treaty.74 The aggressiveness of this opinion pertaining to legal effect was picked up by the CCPR and it, too, submitted that it was competent to sever an impermissible reservation.75 Here it must be noted that the determinative capacity is a separate issue from the legal effect resulting therefrom, which is a primary reason why different concepts related to the legal effect of an impermissibility determination have developed, namely: permissibility, opposability and severability.

70

Ibid., para. 18. The CCPR reiterated this point in CCPR, Rawle Kennedy (note 52), para. 6.4.

71

Ibid., para. 19.

72

ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, 392, para. 75. When considering the US multilateral treaty reservation the Court stated “[c]ertainly the determination of the States ‘affected’ could not be left to the parties but must be made by the Court”. 73

ECtHR, Belilos (note 57), para. 60.

74

Ibid., for a discussion see generally Henry J. Bourguignon, The Belilos Case: New Light on Reservations to Multilateral Treaties, Virginia Journal of International Law 29 (1988–1989), 347; Macdonald (note 56). 75

CCPR (note 36), para. 18.

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The articulation of the CCPR’s determinative role and the assertion that impermissible reservations would be severed shocked many observers and States;76 yet by examining the purpose of treaty bodies as set forth in the treaties, the assertion of this competency should not have been such a revelation. However, unlike the Swiss response to Belilos,77 General Comment 24 inspired intense criticism from France, the US and the UK,78 which focused on the CCPR’s contention that a State would remain bound to a treaty without the benefit of its impermissible reservation (as determined by the Committee). The other end of the spectrum of opinion supported the treaty bodies’ determinative function as a step forward in addressing the mounting problems with reservations to human rights treaties.79 At least one State has acknowledged the comment as outlining the principles of international law that apply to making reservations.80 The legacy of the CCPR’s comment is that it was singularly responsible for catapulting the debate surrounding reservations to human rights treaties into the foreground of international law. It is from the ideas posited in General Comment 24 that much of the progress on the question of reservations has stemmed. General Comment 24 led to an equally controversial decision taken by the CCPR when exercising its function to review individual communications in the 1999 Rawle Kennedy v. Trinidad and Tobago Case.81 The year before, Trinidad and Tobago had 76

See Konstantin Korkelia, New Challenges to the Regime of Reservations Under the International Covenant on Civil and Political Rights, EJIL 13 (2002), 437, 437–438; Curtis A. Bradley/Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, University of Pennsylvania Law Review 149 (2000), 399, 429; see acknowledgement of the opposition by Roberto Baratta, Should Invalid Reservations to Human Rights Treaties Be Disregarded?, EJIL 11 (2000), 413, 417–418. 77 Following the ECtHR ruling, Switzerland redrafted and resubmitted an amended reservation, twice, in fact, as the reservation was once again successfully challenged in ECtHR, Weber v. Switzerland, Judgment of 22 May 1990, Series A, No. 177. Notably, Swiss counsel had actually admitted the prevailing importance of ECHR membership during the hearing thus the Court’s gamble that treaty membership was more important than the invalidation of the reservation to Switzerland was not overly assumptive. See Schabas (note 1), 73. 78 See Observations by the Governments of France, the US and the UK on General Comment No. 24 (52) relating to Reservations, UN Doc. A/50/40 (vol. I) (1995), 102 et seq., 127 et seq., 132 et seq., (respectively), the States argued that invalidation of a State’s reservation was tantamount to invalidation of its consent to be bound; see also Baratta (note 76), 417; Baylis (note 35), 318–322; Alain Pellet, Second Report on Reservations to Treaties, UN Doc. A/CN.4/477/Add.1 (1996), paras. 146–147. 79

Redgwell (note 1), 411.

80

Maldives, Common Core Document (CCDoc.), UN Doc. HRI/CORE/MDV/2010 (2011), para. 108. 81

CCPR, Rawle Kennedy (note 52).

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denounced and re-acceded to the Optional Protocol to the ICCPR82 with a reservation that the CCPR would not be competent to consider communications by any prisoner under the sentence of death in respect of any matter relating to prosecution, detention, trial, conviction, sentence or carrying of the of the sentence.83 In a divided opinion, the CCPR declared the application by Rawle Kennedy, a prisoner on death row, admissible despite the reservation. Resorting to the VCLT rules to determine the validity of the reservation, the CCPR determined that the reservation was contrary to the object and purpose of the Optional Protocol84 as the “function of the Optional Protocol is to allow claims in respect of the [ICCPR’s] rights to be tested before the Committee”85 and the reservation in question sought to lessen the procedural protections of a particular group of people.86 McGrory notes that the CCPR “appeared to have abandoned the State-centred, pre-General Comment 24 approach to assessing reservations to human rights treaties.”87 However, in abandoning the State-centred approach the CCPR committed to maintaining the integrity of both the Optional Protocol and the ICCPR.88 It was just this type of controversial decision on the back of General Comment 24 that gave a great sense of urgency to the ILC study on reservations and its debates on the determinative function of the treaty bodies, which will be discussed below. It is unclear whether the Rawle Kennedy decision contributed to the reluctance of other treaty bodies to be as divisive as the CCPR on reservations as most of the treaty bodies have not had the opportunity to address a reservation in the contentious complaints 82

Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (OP-ICCPR). 83

See UN Treaty Collection, available at: http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-5&chapter=4&lang=en#1 (accessed on 14 February 2012), end note 1, Trinidad and Tobago acceded to the OP-ICCPR on 14 November 1980 and denounced on 26 May 1998. It then re-acceded with a reservation on 26 August 1998. Following the CCPR decision in Rawle Kennedy, it denounced the OP-ICCPR once again on 27 March 2000. 84

CCPR, Rawle Kennedy (note 52), para. 6.5.

85

Ibid., para. 6.6, citing CCPR (note 36), para. 13.

86

Ibid., para. 6.7.

87

Glenn McGrory, Reservations of Virtue? Lessons from Trinidad and Tobago’s Reservation to the First Optional Protocol, HRQ 23 (2001), 769, 808. McGrory generally disagreed with the CCPR’s actions in Rawle Kennedy. 88

763.

Ed Bates, Avoiding Legal Obligations Created by Human Rights Treaties, ICLQ 57 (2008), 751,

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forum. Debating the question of upholding the principles of the treaty at the cost of losing a treaty party instigates a further line of questioning: is it better to keep a noncompliant State in the fold or for the State to denounce the treaty altogether if, in fact, denunciation is possible? Though it is not a question discussed further in this article, it is one that has been considered to no avail.89 Despite criticism surrounding General Comment 24 and Rawle Kennedy, the CCPR continues its vigilant monitoring of reservations and no State, no matter what its perceived human rights record, is exempted from questions relating to reservations to the ICCPR.90 Amongst the treaty bodies, only a few have individually engaged in an ongoing struggle against invalid reservations. In reviewing reports of the newest treaty bodies it is obvious that they have had, admittedly, little experience or cause for concern over invalid reservations, largely due to the nature of the obligations contained in their respective treaties, a lack of substantive reservations, or the current small number of State parties.91 Therefore, the remaining review of treaty body engagement in the reservations debate will be limited to those bodies, in addition to the CCPR, which have developed their positions over multiple decades, namely the CEDAW Committee and the CERD. In 2008, the CEDAW Committee adopted Decision 41/1, which discussed compatibility of reservations with the object and purpose of the Convention.92 The decision indicates that the issue of validity falls squarely within its function in relation to not only the reporting procedure but also in relation to the communication and inquiry procedures under the Optional Protocol.93 In its recent review of Israel under the periodic reporting scheme, the CEDAW Committee came to the conclusion that Israel’s reservation to Article 16 CEDAW was impermissible due to it being contrary 89

Kasey L. McCall-Smith, Reservations to Human Rights Treaties, doctoral thesis, University of Edinburgh (2012), ch. 5, sec. 4.2.3 (as yet unpublished). The CCPR addressed denunciation in CCPR, General Comment 26: Continuity of Obligations, UN Doc. CCPR.C/21/Rev.1/Add.8/Rev.1 (1997). 90 See, for example, CCPR, Report of the CCPR, UN Doc. A/66/40 (vol. I) (2011). In the 2011 report the CCPR addresses reservations by Pakistan, Belgium and Nepal. 91

This observation does not extend to the CAT Committee or the CRC Committee though this author did rely on the products of these bodies in the course of research, the information does not directly appear in text. 92 93

CEDAW Committee, Report on its 41st session, UN Doc. A/63/38 (2008), 87, 88.

Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, 6 October 1999, UNTS 2131, 83.

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to the object and purpose of the Convention.94 Israel’s reservation exempts compliance to the extent that the article, which obliges States to take measures to eliminate discrimination in matters of marriage and family relations, contravenes religious practices, thus defeating the obligation of eliminating discrimination. While the Committee asserted no view on the legal effect of impermissibility, it requested withdrawal and it seems evident that in its dealings with the CEDAW Committee Israel will not be able to rely on its Article 16 CEDAW reservation; though at this stage Israel has not removed the reservation. In this instance the Committee exercised the determinative function without forcing the issue of legal effect beyond the Statetreaty body relationship. There remains no guidance on what should happen if a complaint about a violation of Article 16 CEDAW is brought in another forum, but it appears that if the question was put to a competent dispute resolution mechanism then that organ would have the final word on validity regardless of the positions taken by the treaty body or another State party; however, the CEDAW Committee’s opinion would undoubtedly provide guidance, as would State objections. This point highlights the non-exclusive, reservation evaluative role shared by multiple bodies. At present, there is no definite answer to whether Israel’s refusal to remove the offending reservation prevails over the finding of impermissibility by the monitoring mechanism, a situation that suggests more definitive guidance is needed. The recent CCPR General Comment 34 was published in September 2011 on Article 19 ICCPR – the freedoms of opinion and expression;95 once again the Committee drew attention to reservations and the incompatibility of certain reservations with the object and purpose of the ICCPR. Specifically, the CCPR surmised that any reservation to Article 19 (1)96 would be incompatible with the object and purpose test, just as any general reservation to Article 19 (2)97 would be.98 Demonstrating its concern for providing a clear, internationally applicable interpretation of the ICCPR, 94 CEDAW Committee, Concluding Observations on Israel, UN Doc. CEDAW/C/ISR/CO/5 (2011), paras. 8–9. 95 CCPR, General Comment 34: Article 19: Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011). 96

Art. 19 (1) ICCPR reads: “Everyone shall have the right to hold opinions without interference”.

97

Art. 19 (2) ICCPR reads: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. 98

CCPR (note 95), para. 5.

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the CCPR went through several drafts in an effort to maximise the resonance of its interpretation of obligations and the comment ultimately contains 52 paragraphs aimed at clarifying what States must do to ensure Article 19 ICCPR protections. Importantly, the Committee reinforced its primary interpretive role, recalling that “States parties are required to ensure that the rights contained in article 19 of the Covenant are given effect to in the domestic law of the State, in a manner consistent with the guidance provided by the Committee […].”99 The comment is based heavily on the CCPR’s observations made in the course of reviewing individual communications and the Committee went to great pains to link the protections envisioned in Article 19 ICCPR to those found in other articles of the ICCPR. This type of precision in drafting is an absolute necessity if universally States are expected to defer to the treaty bodies’ interpretations. The treaty bodies are increasingly taking great pains to ground their pronouncements on State compliance in the terms of their respective treaties, unlike other UN Charter100-based organs of the UN human rights regime, such as the Human Rights Council,101 which often fail to base their condemnation of human rights violations on any normative order.102 This reiteration of the accepted normative order strengthens the argument when there has been a view taken that a reservation is invalid.103 The above-mentioned recent review of Israel’s periodic report by the CEDAW Committee exemplifies the unequivocal view of the Committee as they interpret Israel’s reservation in light of specific Convention articles: The Committee remains concerned that the State party continues to retain its reservations to articles 7 (b) and 16 of the Convention. The Committee is of the view that the reservation to article 16 is impermissible as it is contrary to the object and purpose of the Convention. It also infringes on other fundamental articles of the Convention, including article 2, and implementation of the principle of substantive equality between women and men in all matters relating to marriage and family relations.104

99 100

Ibid., para. 8. Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

101

The UN Human Rights Council was established by GA Res. 60/251 of 15 March 2006 to succeed the UN Commission on Human Rights. 102

See Alston (note 55), 2.

103

Marrakech Statement (note 37), para. 16 (c).

104

CEDAW Committee (note 94), para. 8.

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It has been suggested that it is unnecessary for a treaty body to actually ‘determine’ permissibility as it can otherwise clarify its concerns over reservations through its dialogue.105 Such a suggestion reflects the reality that treaty bodies may opt for more nuanced language to indicate that a reservation is unacceptable in lieu of using the terms ‘invalid’, ‘impermissible’ or ‘incompatible’ or that they may not outline the legal effect of such determinations. The CERD’s recent observations on Yemen reflect such a practice: The Committee expresses the belief that a reservation to article 5 has the effect of negating the core purposes and objectives of the Covenant. The Committee, therefore, reiterates […] that the State party should consider withdrawing its reservation to article 5 (c) and (d) (iv), (vi) and (vii) of the Convention, which provisions, inter alia, provide for the right to participate in elections, the right to marriage and choice of spouse, the right to inherit, and the right to freedom of thought, conscience and religion. The Committee expresses the hope that the State party will thoroughly examine the reservations and understand the need to withdraw them in order to give full effect to its obligations under the Convention.106

Though the Committee did not expressly indicate that the reservation is ‘impermissible’ or ‘invalid’, the message is the same – the reservation is incompatible with the object and purpose of the treaty and, therefore, invalid. Arguably, to maintain consistency and work toward establishing a universally accepted paradigm of determination, the treaty bodies should commit themselves to utilising the vocabulary of permissibility and validity and leaving no room for alternative interpretations of their views. Despite the heady General Comment 34, the CCPR shrank from pointedly using the language of impermissibility in its March 2011 response to a reservation by Pakistan which asserted that it did not recognise the Article 40 ICCPR competence of the Committee,107 which is the basis of the Committee’s monitoring role. Without using express terms indicating that the reservation was impermissible, the Committee indicated that Pakistan should submit its initial report by 23 September 2011 and highlighted that the monitoring function was the raison d’être of the CCPR. A more stringent pronouncement using the language of invalidity or impermissibility would better serve the ultimate goal – withdrawal – rather than perpetuate a stagnant reservation as has been the case for many arguably invalid reservations to the core human 105

Boerefijn (note 1), 86.

106

CERD, Report of the Committee on the Elimination of Racial Discrimination, UN Doc. A/66/ 18 (2011), 128, para. 13 (emphasis added). 107

The reservation was one of several made by Pakistan upon ratifying the ICCPR.

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rights treaties. The strength of a clearly defined, convention-based opinion on impermissibility is that it provides an uncompromising view on the shortcomings of the reservation. The above examples have indicated the unacceptability of the reservations but by using variable language. Failure to clearly invoke the language of impermissibility is a weakness of the treaty bodies, yet it should be viewed as a valuable step in the evolution of the determinative function and, more importantly for the goal of bringing States on board, the measured approach reflects an awareness that rampaging like a rogue elephant with unrestrained authority posturing would do more harm than good in the pursuit of encouraging global human rights. It is also notable that while the CCPR avoided terms of impermissibility in relation to Pakistan, States objecting to the Pakistani reservation liberally employed determinative terminology.108 It has been suggested that treaty body effectiveness can be measured in relation to the different purposes they set out to achieve through their different functions which include: “doing justice in individual cases, creating a deterrent and encouraging behaviour modification, and interpreting and explaining human rights law beyond the individual case or particular set of state actors.”109 Periodic report monitoring and concluding observations, issuing general comments and reviewing individual communications all play to the strengths of the treaty bodies which include their specific knowledge of the treaty obligations and their ability to create human rights dialogues with State parties. Though the opinions, comments and statements issued by treaty bodies are not binding and generally viewed as forms of soft law, these products are being referenced in a range of courts on both the international and domestic level.110 108

For example, “[…] the Committee provided for in Article 40 of the Covenant has a pivotal role in the implementation of the Covenant. The exclusion of the competence of the Committee is not provided for in the Covenant and in Austria’s views incompatible with the object and purpose of the Covenant,” Objection by Austria to the Reservation made by Pakistan, 24 June 2011, available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang= en#34 (accessed on 14 February 2012). Further similar objections were made by Australia, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Latvia, Netherlands, Portugal, Slovakia, Spain, Sweden, Switzerland, and the United States. The reservation to Art. 40, as well as several other reservations, was ultimately withdrawn. 109 110

Julie A. Mertus, The United Nations and Human Rights: A Guide for a New Era (2005), 113.

The ECtHR, the European Court of Justice and the African Commission on Human Rights, as well as a multitude of domestic courts, have made reference to treaty body jurisprudence, including general comments. See, for example, ECtHR, Hirst v. United Kingdom, Judgment of 6 October 2005, RJD 2005-IX, 681, para. 27; ECtHR, Öcalan v. Turkey, Judgment of 12 May 2005, RJD 2005-IV, para. 60; ECJ, Case C-73/08, Bressol and Others v. Gouvernement de la Commuauté Française (of Belgium),

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Furthermore, as will be introduced below, the ILC has proposed automatic severance of a reservation determined invalid by a treaty body. In 2000, Tyagi noted that the competence of the treaty bodies to determine the validity of a reservation is indicative of lex ferenda in that the treaty bodies are expanding the validity test for reservations through their opinions, decisions and practices.111 The documents produced by the treaty bodies are publicly available through the Office of the High Commissioner for Human Rights (OHCHR), which provides an opportunity for States and their citizens to track the development of human rights law and its implementation. For example, the 2010 and 2011 annual reports of the CERD indicate that the Committee remains vigilant in its attention to reservations. Australia,112 Japan,113 Monaco,114 and Ireland115 each had their reservations examined and each engaged with the Committee on the reasons why these reservations were maintained. The records of these exchanges may be reviewed by anyone with internet access. It is important to appreciate that the body of work produced by the treaty bodies does not stand alone and must be examined in conjunction with the work of the various UN human rights organs, including the OHCHR, the United Nations Human Rights Council (HRC) and the international courts. The point here, however, is that treaty body work is being examined and relied upon by a wide variety of actors including civil society thus it is developing its own currency. C. Collective Treaty Body Efforts to Address Reservations

In addition to their individual efforts, the treaty bodies have driven collective initiatives aimed toward redressing the impact of reservations on human rights 2010 ECR I-02735, para. 136, opinion of AG Sharpston; African Commission on Human and Peoples’ Rights, Communication 155/96, Judgment of 27 May 2002, ACHPR/COMM/A044/1; ZH (Tanzania) (FC) v. Secretary of State for the Home Department [2011] UKSC 4, para. 23; South African Constitutional Court, Residents of Joe Slovo Community, Western Cape v. Thubelisha Homes and Others, Judgment of 10 June 2009, CCT 22/08, paras. 36–37. 111

Tyagi (note 3), 240.

112

CERD, Report of the CERD, UN Doc. A/65/18 (2010), 20, para. 17, reservation against Art. 4 (a) ICERD on criminalising the dissemination of racist ideas, which the CERD considers a mandatory feature of the ICERD. 113

Ibid., 74, para. 13, reservation against Art. 4 (a) ICERD.

114

Ibid., 86, para. 7, reservation against Arts. 2 (1) and 4 ICERD.

115

Ibid., 49, para. 17.

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treaties under the VCLT regime. Through meetings of the chairpersons of the human rights treaty bodies and inter-committee meetings of the human rights treaty bodies, the treaty bodies have further enhanced the understanding of reservations practice specific to each treaty as well as across the entire human rights treaty regime. In 1997 the CERD proposed that a study be undertaken on reservations to human rights treaties.116 A working paper questioning whether in applying the default VCLT reservations regime to a particular reservation there are special characteristics of human rights treaties which have an impact on the interpretation of the reservation was delivered to the ECOSOC Sub-commission on Prevention of Discrimination and Protection of Minorities in 1999.117 The author of the working paper, Françoise Hampson, was then appointed Rapporteur for the purpose of preparing a comprehensive study on reservations to human rights treaties while not duplicating the ILC study on general reservations. Relying on the VCLT and customary rules of international law ten years after General Comment 24, Hampson paralleled the function of a treaty body to that of a judicial or quasi-judicial body that has the inherent jurisdiction to determine its own competence to unequivocally conclude that a treaty body has the authority to determine: – Whether a statement is a reservation or not: and – If so, whether it is a valid reservation; and – To give effect to a conclusion with regard to validity.118 This conclusion supported the CCPR’s position that the treaty bodies are competent to determine compatibility of reservations with their specific treaties.119 Following the submission of Hampson’s final report on Specific Human Rights Issues, Reservations to Human Rights Treaties120 a working group on reservations

116 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/1997/31 (1997), Annex. 117

Hampson (note 25), 5, lit. f.

118

Hampson (note 17), para. 37. Also acknowledged by Boerefijn (note 1), 86.

119

Hampson (note 17), para. 71.

120

Ibid., passim.

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was established.121 From the beginning of the working group it was clear that there was little coordination among the treaty bodies on the issue of reservations which is not surprising considering their disparate experiences with reservations; thus it was determined that the working group should attempt to harmonise the treaty bodies’ approaches to reservations. The working group’s latest report on reservations, issued in 2008, indicated that the treaty bodies were concerted in their efforts – especially in the course of reviewing periodic reports – to see impermissible reservations withdrawn.122 Whether these efforts will realise the desired outcome remains to be seen. Since the adoption of General Comment 24, the treaty bodies have been increasingly vocal about their views on the validity of reservations. The chairpersons of the treaty bodies and the CCPR actively consulted with the ILC as it developed its guidelines on reservations to treaties in an effort to ensure that the special situation of reservations to human rights treaties were taken into account.123 As late as July 2010 the treaty bodies continued to discuss the issue of reservations with the ILC and, as will be demonstrated below, their efforts yielded several positive results in terms of the final ILC Guide to Practice on Reservations. The initial reasons for asserting this competency were based largely on the theory that a quasi-judicial body has the jurisdiction to determine its own jurisdiction and the fact that the VCLT does not elaborate on what to do when a State maintains an invalid reservation following a determination of invalidity by another State party, both reasons advanced in Hampson’s study.124 In keeping with this argument, the treaty bodies, both individually and through joint efforts, resolved to combat invalid reservations to human rights treaties.125

121 Chairpersons of the Human Rights Treaty Bodies, The Practice of Human Rights Treaty Bodies with Respect to Reservations to International Human Rights Treaties, UN Doc. HRI/MC/2005/5 (2005), para. 2. 122

Id., Report on Reservations, UN Doc. HRI/MC/2008/5 (2008).

123

See summary in CCPR (note 90), 13–15.

124

Hampson (note 17), para. 37; id., Specific Human Rights Issues, Reservations to Human Rights Treaties, Expanded Working Paper Prepared in Accordance to Sub-Commission Decision 2001/17, UN Doc. E/CN.4/Sub.2/2003/WP.2 (2003), 19. 125

See, for example, Chairpersons of the Human Rights Treaty Bodies, UN Doc. HRI/MC/2007/5 (2007), 7, para. 16 (5).

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D. Harmonized Guidelines

One of the key problems for the over 80 %126 of States that have ratified more than four of the core UN human rights treaties is the various forms of periodic reporting required by each treaty. Multiple separate reports create a burden on States, especially smaller or developing countries with limited resources, which stymies the essential monitoring feature of the treaties. In 2009, an attempt was made to address this problem when the UN Secretary-General issued the Harmonized Guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Core Document and Treaty-Specific Documents.127 The Harmonized Guidelines not only provide a method of easing the paperwork strain on States but at the same time create more stringent reporting standards which require States to provide the following information on reservations when submitting their common core document: – The nature and scope of reservations; – The reason why such reservations were considered to be necessary and have been maintained; – The precise effect of each reservation in terms of national law and policy; – In the spirit of the World Conference on Human Rights and other similar conferences which encouraged States to consider reviewing any reservations with a view to withdrawing it, any plans to limit the effect of reservations and ultimately withdraw them within a specific time frame.128 The guidelines specific to reservations seek to achieve what the treaty bodies have thus far not been successful in doing: getting States to elaborate upon and withdraw their reservations. The treaty body working group on reservations endorsed the reservation provisions in the Harmonized Guidelines in the hope that they would assist States in filing multiple reports under the range of core human rights treaties.129 The 126 OHCHR, Treaty Based Bodies, available at: http://www.ohchr.org/EN/HRBodies/Pages/ HumanRightsBodies.aspx (accessed on 4 February 2012). 127 UN Secretary-General, Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties, UN Doc. HRI/GEN/2/Rev.6 (2009), 3 (Harmonized Guidelines). Report issued in response to GA Res. 52/118 of 23 February 1998 and 53/138 of 1 March 1999. 128

Ibid., 10.

129

Chairpersons of the Human Rights Treaty Bodies (note 125), 7, para. 16 (8).

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Harmonized Guidelines reflect calls previously made by both the CCPR and the ILC to simplify the reporting procedure.130 The Guidelines do not address the competency of the treaty bodies to assess reservations. However, the fact that they require more detailed information is evidence that consideration of reservations is decidedly a feature of the reporting procedure and a topic to be taken up by the treaty bodies. The reporting rounds for the next few years will be telling as to whether the Harmonized Guidelines achieve the goal of encouraging more systematic reporting and early indications point to a more thorough discussion of reservations by States.

V. State Acquiescence Though objection activity in response to invalid reservations has increased in the past decade, the remnants of the less-vigilant reservation monitoring years remain visible when reviewing the reservations attached to the core human rights treaties. Having, in many cases, foregone the opportunity to object to invalid reservations, States created a gap in reservation monitoring that must be filled, rather belatedly, in order to preserve the integrity of the human rights treaties. State-treaty body exchanges published incidental to periodic reporting indicate a general acquiescence to the treaty body custom of requesting a reconsideration, reduction or withdrawal of States’ reservations,131 a trend that has been developing over the past two decades.132 State engagement in reservation discussions with a treaty body is the most telling sign that States agree that the treaty bodies have an authoritative role to play. The new reservations reporting rules established by the Harmonized Guidelines have encouraged States to give a fuller account of the need to maintain reservations to the core treaties. Since establishing the Harmonized Guidelines, 54 States have filed common core documents, which should include a review of their reservations.133 Reflecting their ha130 See CCPR (note 36), para. 19; ILC, Commentary upon proposed Reservations to Treaties, Draft Guideline 3.1.11, UN Doc. A/62/10 (2007), 109. 131 For example, CCPR, State Report by Belgium, UN Doc. CCPR/C/BEL/5 (2010), 77, 102–103, responding to previous calls to reconsider or withdraw existing reservations to the ICCPR. 132

Boerefijn (note 1), 95; Tyagi (note 3), 218 et seq.; Lars Magnusson, Elements of Nordic Practice 1997: The Nordic Countries in Coordination, Nordic JIL 67 (1998), 345, 349. 133

OHCHR, Common Core Document, available at: http://www2.ohchr.org/english/bodies/ coredocs.htm (accessed on 4 February 2012).

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bitual interaction patterns with the treaty system, Belgium,134 Germany135 and New Zealand136 – States which traditionally comply with treaty body reporting procedures – have supplemented their reports with comprehensive explanations of their reservations. But it is not only States that have traditionally actively engaged with the treaty bodies that are utilising the simplified common core document. China, too, is thawing in respect of discussing its reservations and it has provided a rationale for its various reservations to human rights treaties in its core document.137 While the explanations may not be satisfactory to the treaty bodies, the advanced engagement is a step forward. Further indications of the increasing recognition of the treaty bodies competence to interpret reservations come from outside the traditionally adherent western and European States and can be found in reports by Afghanistan,138 Azerbaijan,139 Djibouti,140 Kenya,141 and the Maldives,142 to name a few, where core documents indicate reservations are clearly a subject for discussion. At this stage it cannot be claimed that there is consistency as far as the depth of the reservations reporting goes as only approximately half of the common core documents submitted thus far address reservations, and some of those with dedicated indolence. However, the mere fact that States are slowly taking up the practice signifies the substantial progress in the treaty body system since General Comment 24. Occasional insights provided by a few State reports underscore why it is necessary to keep reservations at the forefront of treaty compliance consideration. For example, Afghanistan reports that “[o]f the substantive reservations to these (core human rights) treaties there are few – they largely relate to the interaction between international human rights law and Islam, the official religion of Afghanistan.”143 For purposes of this article it is unnecessary to examine the reasons why many Islamic reservations fly in the face of 134

CCPR (note 131).

135

Germany, CCDoc., UN Doc. HRI/CORE/DEU/2009 (2009), 42 et seq.

136

New Zealand, CCDoc., UN Doc. HRI/CORE/NZL/2010 (2011), Annex.

137

China, CCDoc., UN Doc. HRI/CORE/CHN/2010 (2011), sec. II(A)(1)(b).

138

Afghanistan, CCDoc., UN Doc. HRI/CORE/AFG/2007 (2009), para. 128.

139

Azerbaijan, CCDoc., UN Doc. HRI/CORE/AZE/2008 (2009), paras. 34, 73 (l).

140

Djibouti, CCDoc., UN Doc. HRI/CORE/DJI/2010 (2011).

141

Kenya, CCDoc., UN Doc. HRI/CORE/KEN/2011 (2011).

142

Maldives, CCDoc., UN Doc. HRI/CORE/MDV/2010 (2011).

143

Afghanistan, CCDoc., UN Doc. HRI/CORE/AFG/2007 (2009), para. 128.

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several substantive protections found in the core treaties; however, it is sufficient to show that there is still a long road before the ‘universal’ rights become truly universal. Even disagreement as to the compatibility of such reservations facilitates a better understanding of the challenges that face the normative human rights system at the international level. Thus, while a treaty body might disagree with Afghanistan’s assessment of its own reservations, the issue remains on the table. Over and above explaining reservations, States are also reporting on plans to reconsider or remove particular reservations. Maldives, for example, recently intimated that it was in the process of pushing through the necessary domestic processes so that it may withdraw its reservation to Article 7 (a) CEDAW,144 a reservation that has been the focus of several objections as well as criticism from the CEDAW Committee. In its latest common core document, Australia indicated that the majority of its existing reservations remained necessary, however, it was considering the possibility of withdrawing its reservation to Article 11 (2) CEDAW and it maintains “a policy of keeping existing reservations to human rights treaties actively under review, consistent with the Vienna Declaration and Program of Action.”145 Of course, as with all practices related to human rights, there is a wide disparity among the information divulged in common core documents even with more stringent requirements set forth in the Harmonized Guidelines. Disregard for the interpretive authority of the treaty bodies remains evident in those countries which fail to comply with reporting procedures, but this seems less a reflection on the treaty bodies than certain States’ lack of enthusiasm for the international human rights project as a whole. For those States that actively engage the system, if for no other reason than to disagree, it could be argued that disagreement over interpretation of convention obligations undermines the authority of the treaty bodies. However, as suggested by Çali, disagreements with the treaty bodies “should adopt an attitude of reconciliation rather than conflict […] [and] should also be in the spirit of improving the global interpretation of human rights law.”146 Sweden presents a prime example of this over-arching goal which is facilitated by the reservations dialogue even in the face of disagreement. In its 2011 reporting submission it 144

Maldives, CCDoc. (note 142), para. 110.

145

Australia, CCDoc., UN Doc. HRI/CORE/AUS/2007 (2008), paras. 46, 133 (emphasis in original). 146

Çali (note 43), 23.

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specifically refers to treaty body consideration of its reservations to the ICESCR, ICCPR and ICERD during its previous periodic reporting reviews by the corresponding committees. In these instances the treaty bodies had not taken a view that Sweden’s reservations were invalid but rather that removing the reservations would generally be beneficial for the overall implementation of the treaty and therefore asked Sweden to “consider withdrawing its reservations.”147 In its core document, Sweden provides a thorough account of why the reservations are in place and necessary in light of its functioning domestic legal system.148 While Sweden’s views diverge from those of the respective committees on the necessity of the reservations, the considered explanations provide a useful bridge between the competing interpretations. There is a measured desire to explain its reservations, which supports a conclusion that Sweden respects the authority of the treaty bodies. Article 31 (2)(b) VCLT recognises that any instrument incidental to the conclusion of a treaty that is accepted by State parties may be employed to interpret a treaty. A reservation, as defined by Article 2 (1)(d) VCLT, squarely falls into this category as a “unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty […].” State practice of engaging in reservation dialogues with the treaty bodies in the course of the periodic reporting process signifies acceptance of the determinative function of treaty bodies, albeit tacitly in most instances.149 This point relies on Article 31 (1)(b) VCLT regarding treaty interpretation, which recognises any subsequent practice in the application of a treaty as a tool of interpretation and may also be viewed as lex specialis in specific response to the problems surrounding reservations to human rights treaties. As noted by Boerefijn, “[d]etermining the validity of reservations and attaching consequences to this finding is perfectly in line with other developments in the monitoring machinery.”150 From the volume of reservation discussion generated at the reporting level, it is clear that reservations are ‘fair game’ for treaty body consideration. State engagement with the process, whether via the treaty-specific reporting procedures or the common

147

See, for example, CCPR, Concluding Observations Sweden, UN Doc. CCPR/C/SWE/CO/6 (2009), para. 6. 148

Sweden, CCDoc., UN Doc. HRI/CORE/SWE/2011 (2011), paras. 58–61.

149

Boerefijn (note 1), 95; Baylis (note 35), 299.

150

Boerefijn (note 1), 96.

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core document, is a significant step toward further entrenching global human rights.151 The simple act of explaining the purpose behind reservations intimates deference to the treaty bodies insofar as it recognises a need to justify reservations that might have been the subject of previous periodic reports.

VI. ILC Support During the past eighteen years the ILC has been engaged in a study on the practice of making reservations to general multilateral treaties, including human rights treaties. From the beginning of the study there were calls for special attention to be paid to human rights treaties in light of the practice emerging from the treaty bodies and the ECtHR and, in particular, the idea that States alone were not the final arbiters of reservation permissibility. Ultimately, the ILC opted to avoid singling out human rights treaties for special treatment within the reservations system. It did, however, reinforce the evolving role of the most unique feature of the human rights treaties, the treaty bodies.

A. Determining Validity

Though initial indications suggested a lukewarm position on the determinative function of treaty bodies,152 the ILC ultimately took a progressive step by recognising the long-standing treaty body assertion that in addition to contracting States, treaty bodies can serve in a determinative capacity in evaluating reservation permissibility. In keeping with the generally accepted monitoring organs potentially capable of reviewing reservations, the finalised Guide to Practice on Reservations to Treaties took special care to not give precedence to one assessment organ over another: 3.2 Assessment of the permissibility of reservation The following may assess, within their respective competences, the permissibility of reservations to a treaty formulated by a State or an international organization: – Contracting States or contracting organizations; 151

Çali (note 43), 7.

152

Pellet (note 78), paras. 204–209.

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– Dispute settlement bodies; – Treaty monitoring bodies.153

While the guideline makes sense in that these organs share a determinative capacity and may not determine permissibility to the exclusion of one another, it also fuels a potential problem in that there could be different views on permissibility depending on the entity making the evaluation. As it stands with the ILC, a treaty body’s competence to assess reservations does not prejudice the competence of a contracting State,154 which returns to the cyclical debate between the State and a treaty body as to which decision trumps with regard to reservation validity. There has been State concern that allowing multiple entities to assess the validity of reservations will only cause more complications in interpreting obligations affected by reservations.155 Hampson, too, expressed trepidation over the potential problem of States (not the reserving State) and treaty bodies coming to different conclusions.156 This apprehension is grounded in the reality that separate entities operating in tandem to assess the same reservation are not strictly bound to recognise the findings of others, whether it be assessments by multiple States or a State and a treaty body. However, in practice, there have not been reported instances of a non-reserving State being at loggerheads with a treaty body over a finding of reservation impermissibility. The overarching goal should be, at a minimum, to recognise the value of determinations made by the treaty-specific monitoring organs. The problem of conflicting opinion on reservation validity has been addressed by Higgins, particularly in the context of different courts coming to varying conclusions on reservations.157 Her view suggests that each case where a court must address the issue of a reservation to a human rights treaty is an opportunity to further refine the application of the vague object and purpose test created by the Genocide Opinion and promulgated by the VCLT reservations regime. While Higgins’s opinion specifically 153

ILC Guide to Practice (note 2), guideline 3.2.

154

Ibid., guideline 3.2.4.

155

See comments by Austria in ILC (note 28), para. 63.

156

Hampson (note 25), paras. 21–22. There also appears to be confusion within the treaty bodies themselves, see, for example, Chairpersons of the Human Rights Treaty Bodies (note 125), paras. 4–6. 157 Rosalyn Higgins, Speech Given by Dame Rosalyn Higgins, President of the International Court of Justice, on the Occasion of the Opening of the Judicial Year, 30 January 2009, ECtHR Annual Report 2009 (2010), 39, 45.

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addresses the relationship between courts, it is worth noting that each of the entities listed in guideline 3.2 enjoys a completely different relationship with a reserving State and all play an important role in the development of international law; thus every opinion serves a purpose. The obvious limitation to the determinative function is the lack of enforcement capacity of the treaty bodies. Determinations of invalidity are effective only to the extent that the reserving State complies with the finding; a point reflected in guideline 3.2.1: 3.2.1 Competence of the treaty monitoring bodies to assess the permissibility of reservations – A treaty monitoring body may, for the purpose of discharging the functions entrusted to it, assess the permissibility of reservations formulated by a State or an international organization. – The assessment made by such a body in the exercise of this competence shall have no greater legal effect than that of the act which contains it.158

On the whole, the determination of reservation validity will be recognised to the same extent as other treaty body interpretations of treaty obligations; thus it seems that the effect of any treaty body determination will remain dependant on the State’s deference to the treaty body system. Notably, there are no specific references to human rights treaties in the guidelines, though the ILC does acknowledge that “[t]he issue arises only in connection with human rights treaties.”159 While general international law views permissibility of reservation to be an inter-State issue, human rights treaties have developed a parallel practice to accommodate the State-treaty body relationship. Another point underscored is that neither existing practice excludes a determination by a dispute resolution mechanism, such as the ICJ. As it stands, if a treaty body takes the view that a reservation is invalid in the course of assessing an individual complaint then it has the same impact on the reserving State as if it had made the same observation in the course of examining a periodic report. The Guide reflects the practice of the treaty bodies in that they are increasingly taking views on reservation validity in the course of carrying out all of their monitoring roles. To have taken any other view would have been to ignore the evolv158

ILC Guide to Practice (note 2), guideline 3.2.1.

159

Ibid., 394, guideline 3.2, commentary para. 5.

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ing practice of the treaty bodies and increasing acceptance of the practice by States as evidenced in reservation dialogues with the treaty bodies. A point made by the CEDAW Committee in relation to the determinative function being not only incidental to the reporting procedure but also to the communication and inquiry procedures is important to recall here.160 It is a function necessary in relation to all monitoring and quasi-judicial roles of the treaty bodies, and all treaty bodies are competent in this respect, as each might have to interpret the validity of a reservation in order to assess whether a State is complying with its treaty obligations. The Guide puts forth a pre-emptive measure to be used in future treaties by suggesting that States should specify the competence of the treaty bodies to assess reservation permissibility in future treaties.161 The chairpersons of the human rights treaty bodies took issue with the initial draft of this guideline, which was ultimately left unrevised, due to the potential detrimental effect on treaty bodies established in the future where a specific indication of competency was not included in the treaty.162 However, the original second paragraph of the draft, which suggested amending the existing treaties to provide for the determinative competency, did not appear in the final guidelines. It remains to be seen what, if any, effect the pre-emptive guideline will have on future treaties. After all, the reason that reservations have been such a problematic issue over the years is that States have failed, during negotiations, to include specific reservations evaluation provisions in human rights treaties. The obvious caveat in confirming that a treaty body is competent to assess reservations but the effect is limited to that derived from the normal performance of its monitoring role is that not all States take heed of the monitoring mechanisms. The ILC guidelines remind States that have formulated reservations to a treaty with a treaty monitoring body that they “shall give consideration to that body’s assessment of the permissibility of the reservations.”163 This requirement, easily derived from the concept of pacta sunt servanda,164 has always existed, despite evidence to the contrary 160

See CEDAW Committee (note 41), 88.

161

ILC Guide to Practice (note 2), guideline 3.2.2.

162

CCPR (note 90), 14, para. 20.

163

ILC Guide to Practice (note 2), guideline 3.2.3. Compare with the previous ILC Draft Guide to Practice (note 14), draft guideline 3.2.3 suggested a stronger obligation on the State to take heed of the treaty body decision in that States were “required to cooperate with that body and should give full consideration to that body’s assessment of the validity of the reservations”. 164

Art. 26 VCLT. This point was also made by Hampson (note 17), para. 39.

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in the field of human rights. There is no point in including a treaty monitoring body within a treaty framework if its views, at the very least, are not meant to be fully considered in good faith. Otherwise the existence of the treaty body is futile. From a rights-holder’s perspective there is no doubt an argument that States should defer to the interpretations of the treaty bodies because “they are concerned with the treatment regardless of the state an individual may happen to find him or herself in.”165 B. The Legal Effect of Invalid Reservations

The more tedious question addressed in the Guide, and the crux of General Comment 24, is the legal effect of invalid reservations. While the VCLT regime outlines the test, albeit the vague object and purpose test,166 for determining permissibility, and States, courts and treaty bodies have proved they can apply the test to make a permissibility determination, what is less clear is the effect a determination of impermissibility or invalidity will have on the reserving State when the reservation being considered is to a human rights treaty. The ILC answered the question regarding the legal effect of an invalid reservation generally, providing that an invalid reservation is null and void and without legal effect.167 The commentary on the guideline outlines that “nullity is not dependent on the reactions of the other contracting States”168 yet this returns to the cyclical debate on validity. Clearly the States that have in the past put forward invalid reservations did so under the assumption that the reservations were valid; it is only an objection or decision otherwise taken on invalidity that reveals an opposing view. Ultimately, the ILC took a strong stand on the legal effect of invalid reservations by asserting the severability of such and outlining precisely what reserving States could expect as a result of the determination of invalidity. 4.5.3 Status of the author of an invalid reservation in relation to the treaty – The status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State or international organization on whether it 165

Çali (note 43), 16.

166

On the vagaries of the object and purpose test see Isabelle Buffard/Karl Zemanek, The ‘Object and Purpose’ of a Treaty: an Enigma?, ARIEL 3 (1998), 311; Hylton (note 20). 167

ILC Guide to Practice (note 2), guidelines 4.5.1, 4.5.2.

168

Ibid., guideline 4.5.1., commentary para. 3.

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intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty. – Unless the author of the invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State or a contracting organization without the benefit of the reservation. – Notwithstanding paragraphs 1 and 2, the author of the invalid reservation may express at any time its intention not to be bound by the treaty without the benefit of the reservation. – If a treaty monitoring body expresses the view that a reservation is invalid and the reserving State or international organization intends not to be bound by the treaty without the benefit of the reservation, it should express its intention to that effect within a period of twelve months from the date at which the treaty monitoring body made its assessment.169

This assertion is undoubtedly the most controversial and progressive feature of the guidelines with regard to invalid reservations, particularly in light of the treaty bodies’ increasing opinions on reservation validity. While the guideline continues to defer to the intention of the State – thus leaving the long-standing principle of consent untouched – the conclusion that treaty bodies are in a stronger position in the Statetreaty body relationship is undeniable. As mentioned above (supra, IV. B), the ECtHR was the first organ to advance severing invalid reservations. The CCPR picked up the concept in General Comment 24. Each instance was met with different responses by States.170 While still controversial, there is a marked uptake of the principle that States will be bound to a treaty without the benefit of an invalid reservation. It is clear that the traditional principles of permissibility and opposability, which historically guided inter-State treaty relations, yield no results when a State objects to a reservation to a human rights treaty based on invalidity. Therefore, States promoting a coherent human rights treaty system have begun to express severance as the legal effect of impermissible reservations. The primary difficulty with severability is where a State’s consent to be bound is tied to the acceptance of its reservations. For those States whose consent to be bound is facilitated through their domestic legislature and contingent upon the acceptance of reservations attached to instruments of ratification, the current system offers no governing principles on how to treat reservations that are invalid but integrally tied to 169

ILC Guide to Practice (note 2), guideline 4.5.3.

170

See discussion of Switzerland, France, US and UK, supra, notes 77, 78.

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consent to be bound other than ILC guideline 4.5.3. This lacuna is both a practical roadblock in interpretation in the event of a violation and detrimental to determining overall compliance with treaty obligations. States such as the US and the UK will often condition their consent to be bound to treaties upon ratification subject to the reservations as contemplated by their respective legislature and parliament. The Guide has struck a successful balance between State consent and upholding treaty integrity. States appear cognizant of such conditional consent and are willing to maintain reservations without specifying severance, but this is highly dependent on the relationship between the reserving and objecting States. For example, in 1993 Sweden objected to six of the reservations made by the US,171 indicating that “reservations made by the United States of America include both reservations to essential and non-derogable provisions, and general references to domestic legislation” and were therefore contrary to the treaty, but with no specification as to legal effect of its determination.172 It could be argued that Sweden adopted a more nuanced approach to the US reservations compared to its objections to CEDAW reservations where it specified that “[t]he Convention enters into force in its entirety between the two States, without Bahrain [and others] benefiting from its reservation”173 and that Sweden took into account the

171

The US indicated that the ratification of the treaty was expressly subject to acceptance of the reservations attached to the instrument of ratification. Three of the reservations read as follows: “(1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. (2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. (3) That the United States considers itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States,” see UN Treaty Collection, Declarations and Reservations, United States of America, available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY& mtdsg_no=IV-4&chapter=4&lang=en (accessed on 14 February 2012). 172

Objection by Sweden to the Reservations made by the United States of America, 18 June 1993, available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter= 4&lang=en (accessed on 15 February 2012). Many others States, including Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, and Spain also objected to the US reservations. 173

Objections by Sweden to Reservations, 17 March 1986, available at: http://treaties.un.org/pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (accessed on 15 February 2012). The same statement was made mutatis mutandis in response to reservations made by Saudi Arabia, North Korea, Mauritania, Syria, Micronesia, United Arab Emirates, Oman, Brunei Darussalam, and Qatar.

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conditioned US consent factor. However it is more likely a simple fact of timing in the development of the severability doctrine.174 In reviewing reservations to the ICCPR it is evident that several States are slowly adopting severability. Objections to reservations to the ICCPR made by Denmark (to Botswana, 2001), Finland (to Maldives and Pakistan, among others), Greece (to Turkey, 2004), Latvia (to Mauritania, 2005; to Pakistan, 2011), Norway (to Botswana, 2001), Slovakia (to Pakistan, 2011), to identify a few,175 indicate that States are gradually opting for this clearer indication of the consequence of invalidity. The same uptake of the approach can also be seen in the patterns of States’ objections to reservations to ICESCR,176 CEDAW,177

174

There is also a strong argument that political considerations play into the use of severance, and objections generally, but it is not a theme to be pursued here. For further reading on the point see references, supra, note 23. 175 Objection by Denmark to the Reservations made by Botswana, 4 October 2001; Objections by Finland to Reservations made by Maldives, 14 September 2007, by Pakistan, 28 June 2011; Objection by Greece to Declarations made by Turkey, 11 October 2004; Objections by Latvia to Reservations made by Mauritania, 15 November 2005, by Pakistan, 29 June 2011; Objection by Norway to Reservation made by Botswana, 11 October 2001; Objection by Slovakia to Reservations made by Pakistan, 23 June 2011, all available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV4&chapter=4&lang=en (accessed on 15 February 2012). 176 Objection by Denmark to Declaration made by Pakistan, 17 March 2005; Objections by Finland to Declarations made by Bangladesh, 13 December 1999, by Pakistan, 15 November 2005; Objection by Greece to Declarations made by Turkey, 11 October 2004; Objection by Italy to Declarations and Reservation made by Kuwait, 25 July 1997; Objection by Latvia to Declaration made by Pakistan, 10 November 2005; Objection by Netherlands to Declaration made by Pakistan, 7 October 2005; Objections by Norway to Statement made by China, 23 April 2002, Declaration by Pakistan, 17 November 2005; Objection by Pakistan to Declaration made by India, 17 April 2008; Objection by Slovakia to Reservation made by Pakistan, 9 April 2009; Objections by Sweden to Declarations made by Bangladesh, 14 December 1999, Statement made by China, 2 April 2002, Declarations and Reservation made by Turkey, 30 June 2004, by Pakistan, 1 March 2005, all available at: http://treaties.un.org/pages/View Details.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en (accessed on 15 February 2012). 177 The objections to reservations to CEDAW are numerous, thus the following is only a small sample and does not include those States noted for advocating severance in their objections to reservations to the ICESCR (supra note 176): Objections by Austria to the Reservations made by Pakistan, 5 June 1997, by Lebanon, 20 February 1998, by Saudi Arabia and Korea, 21 August 2001, by Mauritania, 13 February 2002, by Bahrain, 31 March 2003, by Syria, 14 August 2003, by the United Arab Emirates, 5 October 2005, by Brunei Darussalam, 18 December 2006, by Oman, 5 January 2007, by Qatar, 12 February 2010, by Malaysia, 24 June 2011; Objections by Belgium to the Reservations made by Brunei Darussalam and Oman, 30 April 2007, by Qatar, 9 April 2010); Objections by Canada to the Reservations made by Brunei Darussalam, 14 June 2007; Objection by the Czech Republic to Reservations made by Oman, 12 January 2007, by Brunei Darussalam, 11 April 2007, by Qatar, 10 November 2009; Objections by Estonia to Reservations made by Syria, 1 April 2004, by Qatar, 29 April 2010, all available at: http://treaties.un.org/pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en (accessed on 15 February 2012).

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CAT178 and, to a lesser extent, in ICERD.179 Combined ILC and State approaches to the legal effect of reservations indicate that severability is no longer a mere ECtHR and CCPR-led crusade. This definitive shift on severability is a boon to the human rights system if the ultimate goal is global recognition of universal rights. VII. Conclusion Since the problem of impermissible reservations to human rights treaties first materialised in the aftermath of the Genocide Opinion, the situation surrounding impermissible reservations has only worsened and the need for an alternative to the traditional model of State objections as the primary mechanism of determining reservation permissibility has increased. When a treaty does not create reciprocal obligations and/or rights and has no specific reservation regime outlining the effect of a determination of impermissibility there must be an alternative mechanism with the competency to access the permissibility of reservations. International human rights law and the competencies of the human rights treaty bodies are evolving to meet the demands of an expanding and inter-connected world society. The work of the treaty bodies, comments from observers, the acquiescence of States and the ILC Guide to Practice point to the competence of treaty bodies to determine the validity of reservations as well as to indicate the legal effect of invalidity. This is supported by the flexibility of the VCLT as well as the evolving practice of the treaty bodies as recognised and practiced by States. Though this is an essential and effective role, in most cases it is clear from the reports issued by each of the bodies

178

Objection by Czech Republic to Reservations made by Pakistan, 20 June 2011; Objection by Denmark to Reservations made by Botswana, 4 October 2001; Objections by Finland to Declaration made by Bangladesh, 13 December 1999, Reservation made by Qatar, 16 January 2001, by Pakistan, 28 June 2011; Objection by Latvia to Reservations made by Pakistan, 29 June 2011; Objections by Norway to Reservation made by Qatar, 18 January, by Botswana, 4 October 2001, by Pakistan, 29 June 2011; Objection by Slovakia to Reservations made by Pakistan, 23 June 2011; Objections by Sweden to Reservations made by Qatar, 27 April 2000, by Botswana, 2 October 2001, Declaration made by Thailand, 29 September 2008, Reservations made by Pakistan, 22 June 2011, all available at: http:// treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (accessed on 15 February 2012). 179 See objections to reservations to ICERD, specifically Sweden’s objections, available at: http:// treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en (accessed on 15 February 2012).

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that compliance with the reporting procedures is far from perfect and their observations on the reports often fall on deaf ears. If treaty bodies are to serve their intended purpose of interpreting human rights treaties in order to monitor State parties, then the determinative function must be recognised and heeded by States in order to increase the coherence of international human rights law. States have accepted that treaty bodies will address reservations, as is clear from the State-treaty body dialogues. Interpreting treaty obligations and the fulfilment of those obligations is an essential part of every monitoring role recognised under the treaty body remits and, therefore, the determinative function extends to each of these. Whether discussing reservations in the context of periodic reports or determining validity in the course of reviewing an individual communication, treaty body competence to address reservations has yet to gain universal appeal though time appears to be on the side of the treaty bodies. Increased recognition of the determinative function of the treaty bodies and the severability doctrine promises to strengthen the pursuit of a global human rights system.

The Customs Union and the Common Economic Space of the Eurasian Economic Community: Eurasian Counterpart to the EU or Russian Domination? CHRISTOPH J. SCHEWE( AND AZAR ALIYEV((

ABSTRACT: It came as a surprise to the World Trade Organisation (WTO) accession negotiators when in June 2009 Russia announced that after having spent nearly sixteen years of intense negotiations aimed at WTO membership, it would abandon its accession plans and instead seek to jointly accede as a customs union together with Belarus and Kazakhstan.1 Besides the overall confusion this declaration caused, it started drawing attention to a relatively unknown organisation, the Eurasian Economic Community (EurAsEC). After unambiguous indications by the relevant accession-negotiators, Russia meanwhile re-adjusted its course towards its individual WTO accession.2 Simultaneously, Russia accelerated its aspirations towards the creation of the Customs Union (CU) and the Common Economic Space (CES) in the Eurasian region to an unprecedented level. Despite the initial attention and the significant efforts that led to the creation of the CU of the EurAsEC in 2010, western Europe has so far widely ignored its existence. Only recently have articles started to comment on the organisation and warn of its potential to help Russia expand its influence in eastern Europe.3 Given that ( Christoph J. Schewe is DAAD Visiting Associate Professor of European and International Economic Law at the University of Latvia in Riga; this article was written with the support of an European Research Council grant when working as DAAD Associate Professor of European and International Economic Law the University of Tartu, Estonia. ((

Azar Aliyev is research assistant at the Institute of East European Law at the University of Kiel, Germany and director of the project “Foreign Investment Law in Azerbaijan, Kazakhstan and Russia”. 1

International Centre for Trade and Sustainable Development (ICTSD), Russia Abandons Unilateral Bid to Join WTO, 10 June 2009, available at: http://ictsd.org/i/news/bridgesweekly/48333/ (accessed on 16 January 2012); ICTSD. Joint Bid Still Baffles WTO Members, September 2009, available at: http://ictsd.org/i/news/bridges/54342/ (accessed on 16 January 2012); Open Democracy, 18 May 2011, WTO membership: confused by the double-headed eagle, available at: http://www.wto. ru/en/opinion.asp?msg_id=28137 (accessed on 16 January 2012). 2 ICTSD, Russia, Belarus, Kazakhstan to Join WTO on Separate, but Coordinated Terms, 21 October 2009, available at: http://ictsd.org/i/news/bridgesweekly/57412/ (accessed on 16 January 2012). 3 Gerhard Gnauck, Bastelt Russland an einer neuen Sowjetunion?, Die Welt, 13 June 2011, available at: http://www.welt.de/debatte/article13427496/Bastelt-Russland-an-einer-neuen-Sowjetunion.html (accessed on 16 January 2012); Ilona Iarmoliuk, Russia makes its move, EUobserver, 6 July 2011, available at: http://euobserver.com/9/32595/?rk= (accessed on 16 January 2012).

566 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 activities of economic integration in Europe may have important implications for the European Union (EU) and its Member States, this article provides an overview of the institutions of the EurAsEC, CU and CES and a comprehensive analysis of their legal systems. Since even the name EurAsEC reminds one of the European Economic Community (EEC),4 the article considers whether the EurAsEC itself or whether the CU and CES established in its framework offer similar instruments for providing legal security as it is supposed to for stimulating trade and attracting investments. KEYWORDS: Eurasian Economic Community, European Union, Russia, Kazakhstan, Belarus, Customs Union, Common Economic Space, Commonwealth of Independent States, Regional Trade Agreements, Economic Integration

I. Introduction Since the 1990s economic integration has become increasingly popular in almost all parts of the world. Due not only to its longevity – with beginnings almost 60 years ago – but also, and particularly, to its success in economic integration, the European Community (EC) (now the EU) is said to serve as a template for younger organisations. Although its history has been marked by success-stories as well as setbacks, economic, and later political, integration has consistently progressed. Even though this achievement cannot be attributed to one factor alone, it is undisputed that law has played a decisive role in the process of European integration. As a result of this political and legal process the EU has developed a unique institutional structure with its own legal system that has proved to be capable of dealing with the challenges that have arisen. With the worldwide increase of Regional Trade Agreements (RTAs) it is no surprise that many successors of the former Soviet Union (SU) have joined this trend and striven for enhanced economic cooperation in order to benefit from the welfare gains that are commonly associated with trade agreements or even go further.5 The history of economic integration in Eurasia is much more recent and basically started after the collapse of the Soviet Union in 1991. Apart from bilateral agreements 4 Igor Shuvalov, The Customs Union development proceeds along the path of EU, PRIME-TASS, 18 April 2011, available at: http://www.wto.ru/en/opinion.asp?msg_id=28051 (accessed on 16 January 2012); Customs Union is only the first stage of integration, Kommersant, 18 April 2011, available at: http://www.wto.ru/en/opinion.asp?msg_id=28047 (accessed on 16 January 2012). 5

Contrary to the assumption of generating welfare gains, see Lúcio Vinhas de Souza, An Initial Estimation of the Economic Effects of the Creation of the EurAsEC Customs Union on its Members, World Bank Economic Premise 47 (January 2011), available at: http://siteresources.worldbank.org/ INTPREMNET/Resources/EP47.pdf (accessed on 16 January 2012).

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there were a number of efforts made to organise international trade under the framework of international organisations or trade agreements.6 Since most of these attempts were not regarded as fruitful, scholarly attention remained at relatively low levels. Still, in October 2000 five countries formed a regional economic organisation – the EurAsEC7 (which in English has also alternatively been abbreviated to EAEC).8 This second abbreviation in particular resembles the starting point of the EU, the EEC. This similarity can be interpreted as a mere coincidence but also as the ambition to follow in the footsteps of its western neighbour.9 There are in fact several indicators which point towards the second assumption, for instance a certain qualitative change in trade integration. The most striking evidence that can be observed is that the process of economic integration has reached an unprecedented level since the three countries Russia, Belarus and Kazakhstan – already Member States of EurAsEC – formed in the framework of the EurAsEC a CU and then a CES. However, the fruitless attempts of predecessor-organisations10 to achieve efficient economic integration seemed to reveal a lack of commitment for trade integration that has led to a sceptical attitude towards these new ambitions. In order to find out whether these declared ambitions are backed with legal commitments and thus differ from previous attempts, this article introduces the structures and institutions of the CU and CES and compares them with their equivalents in the European Communities. The analysis will focus on two levels: firstly, on the institutional level, and secondly on the legal instruments behind the implementation of political aims. 6

For a detailed overview of trade relations in the Commonwealth of Independent States (CIS) see Rilka Dragneva/Joop de Kort, The Legal Regime for Free Trade in the CIS, International and Comparative Law Quarterly (ICLQ) 56 (2007), 233–266. 7

Treaty on Establishment of the Eurasian Economic Community (Dogovor ob učreždenii Evrazijskogo Ekonomičeskogo Soobčšestva), 10 October 2000, Sobranie Zakonodatel’stva RF (SZ RF) 7 (2002), 632, English translation available via: http://evrazes.com/en/docs/base (accessed on 16 January 2012) (EurAsEC Treaty). 8

It is especially this English version which reminds one of early European integration; also the Russian version of the abbreviation – Evrazes – resembles EES, the Russian abbreviation of evropejskoje ekonomičeskoje soobščestvo for EEC. 9

Vice Prime Minister of the Russian Federation, Member of the Commission of the Customs Union for the Russian Federation Shuvalov states “The Customs Union is following the path the EU and will probably go beyond European area,” Moscow, Itar-Tass, 18 April 2011, English summary and full Russian text available at: http://www.wto.ru/en/opinion.asp?msg_id=28051 (accessed on 16 January 2012). 10

For details see infra, II.

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The first level, the plan to establish a CU and later a CES, comprises several structural challenges for establishing an effective international organisation. These challenges lie within the decision-making process,11 the involvement of institutions, and the voting procedures. Since the complex structure of the CU and CES is framed by the extension of the structures of its predecessors, the article will firstly introduce the relevant background information for the CU and CES and its Member States, present the institutional structure and decision-making procedure, it will then examine the legal instruments of the CU and CES and put them in perspective compared to those developed in EU history and which have shown to be vital for the process of integration. The final part will highlight the working modalities of the EurAsEC Court and the role for a future ‘Eurasian Community-Law’.12

II. History of the EurAsEC Since the collapse of the Soviet Union the successor States have made several attempts to maintain economic relations.13 Most of these efforts failed, mainly because the newly independent States were afraid of losing their sovereignty. All international treaties on economic integration were declarative without any enforcement instruments. In addition, despite the declarative character most of them were even not ratified by the Member States.14 However, while Azerbaijan and Georgia could target western oil markets (e.g. Azerbaijan negotiated its ‘Contract of the Century’ on 20 Sep11

Similar to the practice in EU law, the article will distinguish between primary and secondary EurAsEC law. 12 For details concerning the regime on tariffs and the relation to the WTO see Sherzod Shadikhodjaev, Trade Integration in the CIS Region: A Thorny Path Towards a Customs Union, Journal of International Economic Law (JIEL) 12 (2009), 555. 13

Kembayev gives an extensive overview in Zhenis Kembayev, Legal Aspects of the Regional Integration Processes in the Post-Soviet Area (2009); in the CIS see 25–90, in the EurAsEC see 95–167; see also Angelika Nußberger, Supranationales Recht jenseits des Ural, OsteuropaRecht 56 (2010), 113, 114; Rilka Dragnewa-Lewers, Towards Free Trade in the CIS: Challenges of Law and Policy, in: Sergey Bakhin (ed.), Public and Private International Law: Problems and Prospects (2007). 14 Šumskij offers the following statistics: since the foundation of the CIS 286 treaties were to be ratified – however, only 18 (6 %) were ratified by all Member States! Georgia has ratified only 31 (17.4 %), Russia 154 (54.4 %). Nikolaj Šumskij, Soveršenstvovanie organizacionno-pravovoj osnovy dejatel’nosti sodružestva nezavisimyh gosudartv (Improvement of organization and legal framework of activities of the Commonwealth of Independent States (translation by the authors)), Zakonodatel’stvo i ekonomika 9 (2007), 18.

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tember 1994),15 other countries like Belarus, Kirgizstan or Tajikistan did not have any alternative to regional integration.16 Still, political obstacles on the way to re-integration endured because of territorial conflicts after the collapse of the Soviet Union.17 In the mid-90s it became apparent that not all States were equally interested in economic integration.18 Consequently, in 1995 Russia and Belarus decided to implement the provisions of the Commonwealth of Independent States (CIS) Agreement on Establishment of the Economic Union19 and signed the Treaty on Establishment of the Customs Union (1995 Customs Union).20 Kazakhstan and Kirgizstan joined this Agreement on 20 January 1995 and on 6 March 1996 respectively. However, this Agreement was not efficient. The first stress test – the financial crisis of 1998 – turned out to be a catastrophe which Member States tried to fight against, using protectionist measures. In the meantime Kirgizstan joined the WTO without consulting with other Member States of the 1995 Customs Union. Although the crisis of 1998 was a strong backlash against the integration process and the 1995 Customs Union, it was not the end of the process. In 1999, the Member States of the 1995 Customs Union and Tajikistan signed the new Agreement on Customs Union and the Common Economic Space,21 in which the parties expressed their “[…] determination to complete the formation of a Customs Union and create a Common Economic Space.” In 2000, the Member States to the latter agreement established the 15 ‘Contract of the Century’ is a production sharing contract on development of Azerbaijan’s Caspian oil reserves signed on 20 September 1994 between Azerbaijan and a consortium of foreign oil com-panies. Some of the Production Sharing Agreements are publicly available at: http://www.bp.com/ sectiongenericarticle.do?categoryId=9029334&contentId=7053632 (accessed on 16 January 2012). 16 RIA Novosti, 19 May 2011, Does the post-Soviet economic space need a Free Trade Zone?, English summary available at: http://wto.ru/en/opinion.asp?msg_id=28140 (accessed on 16 January 2012). 17

Significant are, for instance, the conflicts in Nagorno-Karabakh, Ossetia, Transnistria etc.

18

Georgia, Ukraine, Azerbaijan and Moldova established the GUAM (Organization for Democracy and Economic Development) in Strasbourg in 1997, see http://guam-organization.org/en (accessed on 16 January 2012), as an alternative to the CIS, Collective Security Treaty Organisation (CSTO) and the EurAsEC, but without any notable success. Uzbekistan joined the GUAM 1999 and withdrew in 2005 to join the CSTO and EurAsEC in 2006. Uzbekistan withdrew from EurAsEC in 2008; Kembayev (note 13), 171–184. 19

CIS Treaty on the Establishment of an Economic Union (O sozdanii ekonomičeskogo sojuza), 24 September 1993, Bjulleten’ meždunarodnyh dogovorov 1 (1995), 7. 20 21

CIS Treaty on Customs Union (O tamožennom sojuze), 20 January 1995, SZ RF 42 (2007), 4938.

Treaty on the Customs Union and the Common Economic Space (Dogovor o tamožennom sojuze i edinom ekonomičeskom prostranstve), 26 February 1999, SZ RF 42 (2001), 3983, the English translation is available at: http://www.evrazes.com/docs/view/128 (accessed on 16 January 2012).

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new international organisation EurAsEC as the successor to the Customs Union of 1995 and subsequent treaties.22 The Treaty on Establishment of the Eurasian Economic Community was signed on 10 October 2000 by the Republic of Belarus, the Republic of Kazakhstan, the Kirgiz Republic, the Russian Federation and the Republic of Tajikistan. In 2006, Uzbekistan and all Member States signed the Protocol on joining of Uzbekistan to the EurAsEC.23 Despite these efforts Uzbekistan did not ratify the treaty and suspended its EurAsEC membership in 2008.24 The efforts at cooperation between the EurAsEC Member States were not limited to economic issues but also extended to further issues such as military cooperation.25 However, while some States were not ready for further integration, Kirgizstan – by joining the WTO – had already moved to a different direction.26 Consequently, three Member States – Republic of Belarus, Republic of Kazakhstan and the Russian Federation – decided to take a fast track route by creating a customs union and subsequently a common economic space under the EurAsEC. Despite the joint decision of the three States, one has to bear in mind the heterogeneity of the coun22

After the failure of previous attempts the legal community became sceptical about the future of the EurAsEC, S. Galina Šinkareckaja, Est’ li buduščee u EvrAzES? (Does the EurAsEC have a future? (translation by the authors)), Gosudarstvo i pravo 11 (2004), 73. 23 EurAsEC Interstate Council protocol on the accession of the Republic of Uzbekistan to the Treaty on the Establishment of the Eurasian Economic Community from 10 October 2000 (O prisoedinenii respubliki Uzbekistan k dogovoru ob učreždenii Evrazijskogo Ekonomičeskogo Soobčšestva ot 10 oktjabrja 2000 goda), 25 January 2006, SZ RF 5 (2007), 559. 24 EurAsEC Interstate Council decision 414 on the Suspension of the Membership of the Republic of Uzbekistan concerning Activities of the EurAsEC Authorities (O priostonavlenii učastija Respubliki Uzbekistan v rabote organov EvrAzES) of 24 December 2008, available via: http://consultantplus.ru (accessed on 16 January 2012). 25 The Member States to the EurAsEC together with Armenia (which is observer to the EurAsEC) and Uzbekistan (which joined the EurAsEC for a limited period (see note 24)), established the military organisation Collective Security Treaty Organisation or CSTO (Organizacija kollektivnoj bezopasnosti, ODKB) in 2002. Charter of the Collective Security Treaty Organisation (Ustav organizacii dogovora o kollektivnoj bezopasnosti), 7 October 2002, SZ RF 3 (2004), 163. The CSTO was founded on the basis of the Treaty on Collective Security (Dogovor o kollektivnoj bezopasnosti), 15 May 1992, UNTS 1894, 309. The treaty was signed by the CIS Member States except Moldova, Turkmenistan and Ukraine. In 1999 Azerbaijan, Georgia and Uzbekistan refused to renew the treaty, although Uzbekistan re-joined in 2006. 26 On the accession process of the CIS States see Shadikhodjaev (note 12), 565; id., Eurasian Economic Community (EurAsEC): Legal Aspects of Regional Trade Integration, KIEP working paper (2008), available via: http://www.kiep.go.kr/eng/publications/pub02_view.jsp?page=1&no= 182723&sCate=013002&sSubCate=005&tabValue=2.

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tries as having implications for institutional structure, decision-making and also the legal system of the CU and CES. Today the Member States of the CU and the CES are identical, but it is very probable that in the future one or another country will participate in the CU but not in the CES. Therefore the CU is remaining to be an independent structure. Firstly, the region itself is comprised of considerably heterogenic countries in terms of size, population, economic capacities and needs. The territory of the Russian Federation comprises an area of 17.1 million square km which equals around 82 times the territory of Belorussia (207 thousand square km) and 6.3 times of Kazakhstan (2.7 million square km). The number of respective populations reveals a similar discrepancy: Russia has 142 million inhabitants, Belarus 9.6 million and Kazakhstan 16.4 million inhabitants.

III. Structure, Organisation and Decision Making Process The current structure of the CU and CES is, on the one hand, marked by the evolutionary process trade integration has undergone in the past decades with the result that, various aspects are reminiscent of previous efforts at integration. It is important to mention the historically grown institutions that still have an effect on competences and relations between the participating States. On the other hand one can regard the particularities that remain from former organisations as they mark a shift from ‘historic’ structures to others, that at first glance appear to resemble those of the EU. The relation between the EurAsEC and the CU and CES can best be described as a double-layer integration process. On a regional level, five countries have created an organisation with its own institutions and a legal framework that commits members to establish a Free Trade Agreement (FTA). Within this organisation the three States, Russia, Belarus and Kazakhstan, have committed themselves to the more ambitious goals of creating a customs union and later a common economic space.27 The CU and CES make use of the existing institutions of the EurAsEC framework but also have own bodies exclusively serving the purposes of the CU and CES. The relation between overlapping, multi-functional and competing bodies is complex and sometimes 27 This initiative is not identical to a previous one from 1999 that today only partially applies, see supra, note 21.

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unclear, for instance when it comes to the application of the treaties of predecessororganisations. Even though being almost identical in composition, function and competence, bodies differ in the EurAseEC on the one hand and the CU and CES on the other. In addition, the legal framework is not comprised of a few comprehensive treaties but a multitude of treaties dealing with particular issues. This makes it difficult to gain a complete overview of the EurAsEC, CU and CES activities. For that reason this article firstly introduces the basic structure of the EurAsEC before explaining the institutional framework of the CU and CES. Given the overriding importance of the court for the legal system of the EurAsEC, this institution will not be presented in the institutional context but later in section IV, where the laws of the EurAsEC and the CU and CES will be considered.

A. Structure of the EurAsEC

Several bodies and institutions govern the EurAsEC:28 the organisation is headed by the Interstate Council, an institution which is a multi-level organ such as the European Council, composed of the Heads of State or the Heads of Government. The Integration Committee fulfils the functions of the Interstate Council as an executive organ of the EurAsEC, while the Interparliamentary Assembly serves the objective of coordinating the legislative activities of the national parliaments. A third body, the Integration Committee Secretariat organises on-going activities and implements decisions taken by the Interstate Council and the Integration Committee, while the EurAsEC Commission of Permanent Representatives29 provides routine work between the meetings of the EurAsEC Integration Committee and arranges the meetings. Finally, there is the EurAsEC Court which has the function of settling economic disputes. According to Article 11 EurAsEC Treaty the EurAsEC shall, in the territory of each Contracting Party, have the necessary legal capacity to achieve its objectives and purposes. EurAsEC may enter into relations with States and international organisations, and conclude treaties with them. EurAsEC shall have the 28 29

Art. 3 EurAsEC Treaty.

The abbreviation and name of this body remind one of the COREPER (Comité des représentants permanents) in the EU.

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rights of a legal person for the achievement of its objectives and purposes, and inter alia has the right to: – conclude treaties; – acquire and dispose of property; – take part in court proceedings; – open accounts and perform transactions with monetary funds.

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1. Interstate Council The Interstate Council is the supreme organ of the EurAsEC and is composed of the Heads of State and Heads of Government.30 Even though the name Interstate Council indicates a single uniform body, factually, one may speak of two organs, the Interstate Council of the Heads of State and the Interstate Council of the Heads of Government. Both hold their meetings separately31 and have slightly different competences. The EurAsEC Treaty rather sketches the competences, functions and procedural rules of the Interstate Council which are then specified in the Regulation on the Activity of the Interstate Council of the EurAsEC32 and the Regulation on the Procedures of the Interstate Council of the EurAsEC.33 According to the EurAsEC Treaty “[…][i]t shall decide on the strategy, means and prospects for integration development and shall take decisions for implementing the objectives and purposes of EurAsEC.”34 Further, the Interstate Council takes decisions on the regulation of mutual trade, customs policy and regulations, harmonisation of national legislations and on membership of the organisation. Furthermore, the Interstate Council approves the budget and the structure of the Secretariat of the Integration Committee, appoints the Secretary General of the Integration Committee, proposes candidates for the judges to the Interparliamentary Assembly and establishes the subsidiary organs.35 The delineation of competences of the Interstate Council of the Heads of State and the Heads of Government is unclear as neither Treaty nor regulations specifically lay out competences. However, some provisions stipulate the exclusive authority of 30

Art. 5 EurAsEC Treaty.

31

Heads of State meet at least once per year whereas the Heads of Government meet twice per year, see Art. 5 EurAsEC Treaty. 32 EurAsEC Interstate Council Regulations on the Interstate Council of the Eurasian Economic Community (Položenie o mežgosudarstvennom sovete Evrazijskogo ekonomičeskogo soobščestva), 31 May 2001, as amended on 23 June 2006, available via: http://evrazes.com/docs/base, English translation available via: http://evrazes.com/en/docs/base (both accessed on 17 January 2012). 33 EurAsEC Interstate Council Resolution 4 on Rules of Procedure for the Interstate Council of the Eurasian Economic Community (Položenie o pravilah procedury mežgosudarstvennogo soveta Evrazijskogo ekonomičeskogo soobščestva), 31 May 2001, last amended on 23 June 2006, available via: http://evrazes. com/docs/base, English translation available via: http://evrazes.com/en/docs/base (both accessed on 17 January 2012). 34

Art. 5 (2) EurAsEC Treaty.

35

Art. 5 EurAsEC Regulations on the Interstate Council (note 32).

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the Interstate Council on the level of the Heads of State which indicates that both organs are intended to have different competences.36 In order to avoid overlaps and confusion the treaties need more precision on this issue.37 Besides its position in the EurAsEC the Interstate Council serves at the same time as the supreme organ of the Customs Union of the EurAsEC. Since decisions are reached by consensus, it has the character of an intergovernmental institution.

2. The EurAsEC Integration Committee The EurAsEC Integration Committee is a standing body of the EurAsEC which is accountable to the EurAsEC Interstate Council. It is composed of the deputy Heads of Governments of the Member States.38 For a period of one year each State of the Community, in turn, chairs the Integration Committee, rotating in the order of the Russian alphabet. The sessions are guided by the Chairman of the Integration Committee who is appointed by the EurAsEC Interstate Council.39 The Integration Committee adopts resolutions and schedules the activities of the EurAsEC Interstate Council. One of its most important functions is to analyse the 36

E.g. the budget of the Community shall be approved by the Interstate Council on the level of the Heads of State. Art. 5 (1) of the EuAsEC Interstate Council Decision 16 on the Regulation concerning revenue and expenditure of the EurAsEC budget (O položenii o porjadke formirovanija i ispolnenija bjudžeta EvrAzES), 31 May 2001, available via: http://evrazes.com/docs/base (accessed on 17 January 2012). 37 Another interesting question is how to define the terms, ‘Heads of State’ and ‘Heads of Government’, as there are presidential and parliamentary forms of governments. The issue did not reveal any problems until the new constitution of the Republic of Kyrgyzstan entered into force, since all States were presidential republics. The new constitution of the Kyrgyz Republic however, constitutes a parliamentary republic with the main competences belonging to the head of government with a ‘semisymbolic’ president. It remains unclear who will represent Kyrgyzstan at the next Interstate Council meeting on the level of the Heads of the State. 38

Kembayev states that for the dependency on the member States the Integration Committee rather resembles to the Council of the EU than to the EU Commission. Zhenis Kembayev, Evrazijskoe ekonomičeskoe soobščestvo: pravovye osnovy dejatel’nosti, problemy i perspektivy razvitija (Eurasian Economic Community: legal basis, problems and prospective of development (translation by the authors)), Gosudarstvo I pravo 10 (2007), 53, 55. 39

Detailed regulation in the EurAsEC Interstate Council Resolution 6 on Regulations on the Integration Committee of the Eurasian Economic Community (Ob integracionnom komitete Evrazijskogo Ekonomičeskogo Soobščestva), 31 May 2001, as amended on 27 April 2003 and 23 June 2006, English translation available via: http://evrazes.com/en/docs/base (accessed on 18 January 2012).

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status and development trends of the integration processes within the Community and to prepare proposals for their development. In line with this purpose, it develops draft resolutions for the Interstate Council that deal with the regulation of mutual trade or the coordination of the customs policies of Member States in relation to third States. In addition, the Integration Committee coordinates national legislation and prepares rules for the mutual relationships between EurAsEC and third States or international organisations. Furthermore, it elaborates and implements inter-State investment projects, economic or social programmes and maintains contacts with the executive bodies of other international organisations. It thus holds a representative function but also performs depository functions pertaining to treaties signed within the framework of EurAsEC and resolutions issued by the Interstate Council. Finally, it controls their implementation and oversees the implementation of the EurAsEC budget.40

3. The Interparliamentary Assembly According to its self-presentation, the Interparliamentary Assembly of the Eurasian Economic Community (IPA) is the organ of parliamentary cooperation within the framework of the EurAsEC. The objectives of the IPA are to provide a legal groundwork for the functioning of the EurAsEC and to harmonise the national legislation of Member States in order to bring it in line with the treaties of the EurAsEC.41 Having its seat in St. Petersburg, it is composed of deputies delegated by the parliaments of EurAsEC Member States, with a total number of 90 parliamentarians.42 The Chairman of the Assembly and the deputies are elected at a meeting of the IPA from the ranks of Heads of Parliament (chambers of parliaments) of the Member States.

40

Ibid.

41

The relevant legal provisions can be found in the EurAsEC Interstate Council Resolution 52 on Regulations on the Interparliamentary Assembly of Eurasian Economic Community, 13 May 2002, as amended on 23 June 2006, available via: http://evrazes.com/docs/base, English translation available via: http://evrazes.com/en/docs/base (both accessed on 17 January 2012). 42

Belarus – 16; Kazakhstan – 16; Kyrgyzstan – 8; Russian Federation – 42; Tajikistan – 8.

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Historically, the IPA finds its roots in the IPA of the CIS.43 During the transition period from a socialist to a capitalist system it prepared numerous model laws after the collapse of the Soviet Union, when the countries were in urgent need of new legislation in all spheres. The composition of the IPA is reminiscent of the beginnings of the parliamentary assembly in the EC which was also composed of delegates from the Member States’ parliaments. However, it is astonishing that, among the aims and functions of the IPA, it is not even mentioned that it represents the peoples of the Member States. Instead, it only emphasises the aim of coordinating EurAsEC legal policy and the legislative activities of the national parliaments towards achieving EurAsEC goals and objectives.44

B. Particularities of the Customs Union and the Common Economic Space of the EurAsEC

As previously indicated, the formation of the CU and subsequently CES on the one hand and the EurAsEC on the other can roughly be described as a two speed integration process. For implementing a deeper level of economic integration, the three Member States of the CU and CES have developed specific bodies, or modified existing institutions of the EurAsEC. Most important are the particularities of the Interstate Council in the CU and the CES, the Commission and the Court.

1. The Interstate Council and the Supreme Eurasian Economic Council of the Customs Union and the Common Economic Space of the EurAsEC Besides its position in the EurAsEC the Interstate Council is simultaneously the supreme organ of the CU and CES of the EurAsEC. The Treaty on the Commission

43 CIS Convention on the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States (O mežparlamentskoj assamblee gosudarstv-učastnikov Sodružestva nezavisimyh gosudarstv), 26 May 1995, SZ RF 50 (1996), 5611. 44 Integration Committee Secretariat of the Eurasian Economic Community, EurAsEC Today (2011), 12, available at: http://www.evrazes.com/i/other/EurAsEC-today_eng.pdf (accessed on 17 January 2012).

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201145 renamed the Interstate Council to the Supreme Eurasian Economic Council (SEEC) which however has no effect on the functions of the organ. Similar to the EurAsEC-FTA, the resolutions of the SEEC for the CU and CES are to be decided only by the Heads of Government and the Heads of State. However, for the CU and CES only the Heads of State and the Heads of Government of the three members of the CU and CES of the EurAsEC have the right to participate. As previously highlighted, the division of the Interstate Council into the two organs Interstate Council of the Heads of State and the Interstate Council of the Heads of the Government also applies to the SEEC. The relevant competences, activities and procedural questions of the activity of the SEEC are to be stipulated in special regulations, which have not yet been adopted.

2. The Commission of the Customs Union of the EurAsEC and the Eurasian Economic Commission During the last months of 2011, the integration process gained considerable impetus. As indicated above, Member States have concluded numerous treaties of high significance. Apart from these developments, the Customs Union is undertaking major institutional changes, in particular concerning the Commission. The changes came into force in January 2012; however, on 18 November 2011 Member States had already agreed to provisionally apply the relevant treaties. Given that this reform process has not been completed yet at the time of writing, the following sections explain the structure and elements of the current (2.1) and the new Commission (2.2). The Commission of the Customs Union as well as its successor, the Eurasian Economic Commission is the main executive organ of the Customs Union.46 Neither 45

Treaty on the Eurasian Economic Commission (Dogovor o evrazijskoj ekonomičeskoj komissii), 18 November 2011, available via: http://www.tsouz.ru/MGS (accessed on 17 January 2012) (not ratified yet, preliminary application since 18 November 2011, see Art. 39) (Treaty on Commission 2011). 46 Art. 1 of the EurAsEC Treaty on the Commission of the Customs Union of the EurAsEC (Dogovor o komissii tamožennogo sojuza), 6 October 2007, SZ RF 12 (2011), 1553, in English available via: http://evrazes.com/en/docs/base (accessed on 17 January 2012) (Treaty on Commission 2007). The treaty entered into force on 10 October 2008.

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of them is named in the EurAsEC Treaty nor in the CU Treaty, since, unlike the Interstate Council, they are not organs of the EurAsEC, but each is an exclusive organ of the CU and in future of the CES.47

a) The Commission under the 2007 Treaty Similar to the Integration Committee of the EurAsEC, and under the old Treaty48 provisions, the Commission is composed of the deputy Heads of Government of the Member States.49 From a de jure perspective, the Commission is an independent organ which can adopt obligatory resolutions for parties to the CU.50 De facto, however, the Commissions’ composition stands in contrast to the assertion of institutional independence, as it is composed of the deputy Heads of Government or government members, which implies that Commissioners are in fact directed by their governments. The Treaty on Commission 2007 defines the competences and functions of the Commission providing that the Commission executes the resolutions of the Interstate Council and prepares its recommendations. Furthermore, it monitors compliance and implementation of the relevant treaties as well as other international treaties constituting the contractual and legal framework of the CU.51 The Treaty on Commission 2007 stipulates that the competences will be laid down in the different treaties.52 In general, the competences of the Commission are significantly wider than those of the Integration Committee, which, by assisting the Interstate Council, only fulfils a subordinate function.53 A further, significant difference between the Commission and 47

Art. 1 Treaty on Commission 2007.

48

Treaty on Commission 2007.

49

‘Deputy Heads of Government’ in the EurAsEC States may imply several positions since different government members may simultaneously serve in this function. 50

Art. 7 Treaty on Commission 2007.

51

Art. 6 Treaty on Commission 2007.

52

E.g. EurAsEC Treaty on regulation of licensing in the area of international trade with goods (O pravilah licenzirovanija v sfere vnešnej torgovli), 9 June 2006, SZ RF 33 (2010), 4399. 53

Art. 6 (1) EurAsEC Treaty states that the main tasks of the Integration Committee are to ensure cooperation between the organs of EurAsEC; prepare proposals for the agenda of meetings of the Interstate Council; prepare proposals for the EurAsEC budget and the expenditure; monitor the implementation of decisions taken by the Interstate Council.

580 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011

the Integration Committee is expressed in the principle that “the Commission will step-by-step take over the competences of the authorities of the member [S]tates.”54 Notwithstanding the presumably comprehensive competences of the Commission one must note that these are severely weakened by fact that the Commission is composed of the deputy Heads of the Government55 or “accordingly authorized members of the cabinet.”56 Consequently, it is to be expected that the Commission’s dependency on national politics may impede it from standing above national interests and thus taking independent supranational initiatives that might enable it to become a motor of integration as it has been the case in the EC. However, Article 4 Treaty on Commission 2007 stipulates that the rule may be altered concerning the number and status of representatives, which might render the institution more efficient. Apart from this deficit the Commissions’ activities are further affected by restraints in the voting procedure and the allocation of votes. In principle the Commission adopts resolutions with a two-thirds majority which in theory should enable the Commission to work efficiently. In practice however, there are two aspects that hinder efficiency. Firstly, a decision is only deemed to be accepted if there is no objection – which factually falls within the definition of a consensus rather than a two-thirds majority voting system. Secondly, each Member State may bring a decision it does not agree with to the Interstate Council, which takes decisions by consensus.57 In addition to these concerns, one must note that Kazakhstan and Belarus hold in sum only 43 % of the votes (21.5 % each) meaning that decisions cannot be adopted without the

54 Art. 2 Treaty on Commission 2007. Since the CU Commission meets at least once per month there is no need for an equivalent of the Council of Permanent Representatives in the structure of the CU especially since the Commission may create special organs to support its activities. According to Art. 6 Treaty on Commission 2007 the Commission is on the one hand free to decide the framework of its competence, on the other hand however, it has to “execute the resolutions taken by the supreme body [Interstate Council] of the Customs Union”. 55

Art. 4 Treaty on Commission 2007.

56

Ibid.

57

Art. 7 Treaty on Commission 2007. Should this situation occur, it is unclear whether the decisions of the Commission enter into force in the time between the meeting of Commission (monthly) and the meeting of the Interstate Council (twice a year) as there is no rule on the interim application of such resolutions. However, in this regard one may argue that, in absence of special rules, the decisions adopted with a 2/3 majority enter into force 30 days after publication on the webpage of the Customs Union.

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consent of the Russian member.58 This allocation of votes provides the Russian Federation with a favourable position and illustrates its structural dominance in the Commission and the CU respectively. Given the experiences with previous organisations,59 and the relevant proportion of votes, it appeared highly unlikely that the situation would change after the accession of Kyrgyzstan and Tajikistan to the Customs Union unless the system of weighted votes is changed. However, surprisingly, under the recent reform of the Commission precisely this change of the voting procedure was made.60 Furthermore, as a consequence of the high number of votes, Russia holds a privileged negotiating position. This position is made even more favourable by the fact that trade relations between Belarus and its counterparts from Central Asia are almost non-existent, and even those existing amongst Kyrgyzstan, Tajikistan and Kazakhstan are considerably weaker than those with Russia. Despite the dominant Russian position, the imbalance is partly equalised by the above-mentioned procedures which allow the re-consideration of a decision at the Interstate Council if any of the Commission members does not agree with the resolution. The weakness of the Commission, thus, might have a beneficial effect for smaller members, reducing, to a certain extent, the surplus of Russian influence in the Community. The functions and competences of the Commission are governed by Article 7 Treaty on Commission 2007 which provides that the decisions of the Commission are binding for Member States. This provision is so far incomplete as it remains silent on the question on whether the decisions of the Commission are directly applicable in Member States. However, the norm is complemented by the Regulation on activi-

58

Problems might arise if Kazakhstan and Belarus agree on a measure while Russia abstains; in this case a 2/3 majority could not be achieved even if – formally – there is consensus. 59

The example of the accession of Uzbekistan to the EurAsEC illustrates this assumption as Russia did not transfer any of its votes to Uzbekistan in the Integration Committee and retained its blocking minority of 40 %, despite the weak position of this body. 60 At the beginning of the EurAsEC the Treaty allocated the votes as follows: Republic of Belarus – 20 %; Republic of Kazakhstan – 20 %; Kyrgyz Republic – 10 %; Russian Federation – 40 %; Republic of Tajikistan – 10 % (Art. 13 EurAsEC Treaty). During the membership of Uzbekistan votes were allocated as follows: Republic of Belarus – 15 %; Republic of Kazakhstan – 15 %; Kyrgyz Republic – 7.5 %; Russian Federation – 40 %; Republic of Tajikistan – 10 %; Republic of Uzbekistan – 15 %. After the suspension of the membership of Uzbekistan (see note 24) the distribution of votes was reset. However, under the reform of the Commission precisely this change of the voting procedure is to be made, see the following section on the Eurasian Commission of the CU/CES, infra III. 2. 2.

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ties of the Commission61 elaborated by the Interstate Council. And according to the latter, the decisions of the Commission are directly applicable in the Member States and have the same legal force as the legal acts of the respective authorities of the Member States. This aspect is highly contestable as international organisations derive their competence from the Member States who for that reason are considered to be ‘the masters of the treaties’. This implies that the Interstate Council as one of the CU’s institutions does not have the competence to unilaterally decide on fundamental questions without the agreement of national parliaments. The issue becomes even more sensitive considering that, already in 2006 the Economic Court of the CIS (acting as the EurAsEC Court)62 had been requested by the Integration Committee of the EurAsEC to adjudicate in a non-binding opinion63 on the legal force and applicability of the legal acts of the EurAsEC authorities in the Member States. The Court stated in its conclusion that an analysis of the legislation of the EurAsEC Member States showed that neither national legislation nor constitutions of the Member States provided any legal basis for the direct application of the legal acts of the EurAsEC authorities.64 In the three Member States there is no common position on the question of the supranationality of the CU. While neither Russia65 nor Belarus officially discussed 61

EurAsEC Interstate Council decision 15 on matters of activity of the Commission of the Customs Union (O voprosah dejatel’nosti komissii tamožennogo sojuza) of 27 November 2009, as amended by the Interstate Council decision 68 of 9 December 2010, available via: http://evrazes.com/docs/base (accessed on 17 January 2012). 62 CIS Economy Court Advisory Conclusion 01-1/3-05 on the Inquiry of the Integration Committee of the EurAsEC on the interpretation of Part 1 of Article 14 of the Treaty on the Establishment of the Eurasian Economic Community from 10 December 2000 (Po zaprosu Intgracionnogo Kommiteta EvrAzES o tolkovanii časti vtoroj statji 1, časti pervoj statji 14 Dogovora ob Učreždenii EvrAzES ot 10.12.2000), 10 March 2006, available via: http://consultantplus.ru (accessed on 17 January 2012). 63

The decision of the Court that takes the form of a legal opinion.

64

Art. 14 EurAsEC Treaty states that the legal acts of the EurAsEC authorities are not directly applicable in the Member States, but the Integration Committee has requested a decision on applicability based on Art. 58 Treaty on the Customs Union of 1999, which remains applicable to the EurAsEC and provides for the direct applicability of the legal acts of the respective authorities. 65 Generally, Russian legal literature regards the concept of supranational law sceptically, even though there are also more open tendencies in recent publications, see Georgiy Vel’jaminov, Tamojennyj sojuz v pravovom rakurse (Customs Union from law prospective (translation by the authors)), Gosudarstvo i pravo 2 (2010), 55.

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the issue of direct applicability of the decisions of the organs of the CU, the matter – on how the closed concept of the Kazakh constitution deals with supranational integration – was referred to the Kazakh Constitutional Council in 2009. Even though the Kazakh constitution lacks a norm which opens the constitution for supranational concepts, the Council found that other provisions allowed for the participation in the CU despite the effects on the Kazakh sovereignty.66

b) The Eurasian Economic Commission The structure of the Commission is currently being reformed by the Treaty on the Eurasian Economic Commission which was adopted by the SEEC on 18 November 2011.67 According to this treaty, the Eurasian Economic Commission is the successor of the Commission of the Customs Union. For that reason, like its predecessor, the Eurasian Economic Commission is not an institution of the EurAsEC, but exclusively serves as a permanent institution of the Customs Union and the Common Economic Space.68 The main objective of the Commission remains unchanged69 as it still aims at ensuring that the treaties on CU and CES are applied in the Member States.70 Despite this continuity, the status, structure, and the activity of the Commission underwent a significant reconstruction. While the old Commission consisted of a single body, today it is composed of a ‘Council’ (which is very similar to the old Commission) and a ‘Board’.71 66 Kazakh Constitutional Council Decision 6 on the official Interpretation of Article 4 of the Constitution of the Republic Kazakhstan regarding the Enforcement of the Decisions of International Organizations and their Organs (Ob oficial’nom tolkovanii norm stat’i 4 Konstitucii Respubliki Kazahstan primenitel’no k porjadku ispolnenija rešenij meždunarodnyh organizacij i ih organov) of 5 November 2009, Kazahstanskaja Pravda 283 (2009), 26027; critically Nußberger (note 13), 118–121. 67

Art. 1 Treaty on Commission 2011.

68

Ibid.

69

Now codified with Art. 6 Treaty on Commission 2011.

70

The competence of the Commission is significantly widened under the CES framework, e.g., the Commission will get a competence to prosecute the breaches of the CES, see also Treaty on Common Principles and Rules of Competition (Soglašenie o jedinyh principah i pravilah konkurencii), 9 December 2010, available via: http://evrazes.com/docs/base (accessed on 17 January) (the treaty entered into force on 1 January 2012). 71

In the Russian version the Board is called ‘Kollegium’.

584 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011

c) The Board of the Commission The Board of the Commission is the only permanent executive organ of the CU and CES which is expressively stated in Article 14 Treaty on Commission 2011.72 It is composed of nine members from the three Member States in equal numbers. Members as well as the chair of the Board are nominated by the SEEC on the level of the Heads of State upon the recommendation of the Member States for four years.73 Similar to other institutions, the chair rotates in the alphabetic order of the names of Member States. A few instruments seem to guarantee the independence of the members of the Board: for instance Article 15 (4) Treaty on Commission 2011 which states that the Board members are independent from Member State organs and authorities. However, despite this principle, the Board members may be withdrawn by their Member State, if they are found violating the provisions on Board members of the Treaty on Commission 2011,74 or performing their duties improperly. Furthermore, any member States may initiate withdrawal of the Board member from another Member State by filing an application to the SEEC. Considering the imprecision of the formulation ‘improper performance of duties’ this provision practically enables the Board member’s State of origin to recall him or her at every moment, especially as the Board member has no possibility to appeal against this decision. Notwithstanding the principal independence of Board members they may become susceptible to pressure from their Member States. Article 18 Treaty on Commission 2011 enlists the main tasks of the Board, such as the preparation of draft documents for the SEEC and the Council of the Commission as well as the implementation of the SEEC’s and the decisions of the Council of the Commission. Furthermore, the Board shall enact the decisions and recommendations on the application of the decisions of the CU and CES treaties as well as the decisions of the SEEC and the Commission. 72 Due to this formulation (‘only’) it remains unclear what precise function the Council of the Commission shall have under the treaty; see infra the following paragraphs. 73 74

Arts. 15 and 17 Treaty on Commission 2011 respectively.

The requirements are strict and along with the standard provisions such as prohibition of any kind of other activity, confidentiality requires also an obligation to transfer all bonds and papers to the trust management.

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d) The Council of the Commission The Council of the Commission is the supreme organ of the Commission. With respect to the composition and the rules of decision making, the Council of the Commission is almost identical to the former Commission. Similar to the former Commission and to the Integration Committee of the EurAsEC, it is composed of the deputy Heads of Governments of the Member States.75 Article 8 Treaty on Commission 2011 stipulates that it is in charge of regulating the integration processes in the CU and CES. It also has an important legislative function as it is the only institution that may draft the international treaties for the SEEC which are the most important legally binding documents of the CU and CES. Furthermore, it has competence for initiating changes of the most important tariffs and technical regulations.76 However, taking a closer look at the provisions, it appears that one of its main functions is to control the Board of the Commission, even though the Board is the only executive organ of the CU and CES which is supposed to be independent, the Council of the Commission has extensive competences for controlling and influencing its activities. The main function of the Board in its function as a ‘guardian of the treaty’ (for example it is in charge of monitoring the application of the legally binding rules of the CU and CES by the Member States), and its independence appears to be vital for identifying infringements and ensure compliance with EurAsEC law. According to the treaty provisions however, the Board does not have the power to automatically initiate a procedure before the EurAsEC Court against a Member State for failure to fulfil an obligation, as it is required to firstly bring the matter to the Council of the Commission,77 which may impede the procedure. Given that the Council is composed of representatives of the Member States governments it becomes questionable if the procedure is efficient for achieving this particular objective of the Treaty.

75 ‘Deputy Heads of Government’ in the EurAsEC States may imply several positions since different government members may simultaneously serve in this function (note 37). 76

Attachment to the Regulations on activity of the Eurasian Economic Commission (Reglament raboty evrazijskoj ekonomičeskoj komissii) and on Functions and Competences of the Council of the Commission (Fukcii i polnomočija soveta), 18 November 2011, available via: http://www.tsouz.ru/MGS (accessed on 18 January 2012). 77

Art. 20 Treaty on Commission 2011.

586 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011

e) Voting Rules Under the Treaty on Commission 2011 Besides these institutional changes, the Treaty on Commission 2011 fundamentally changes the voting procedures which differ between the Council of the Commission and the Board. In principle, the decisions of the Council of the Commission shall be made by consensus. However, every member of the Council of the Commission has the right to bring a failed decision to the SEEC.78 The Board in contrast, adopts its decisions and recommendations by a two-third majority of all Board members. Despite this general rule, the Board may also formulate questions which have to be decided by consensus. While the majority rule strongly resembles the old voting rules,79 the allocation of the votes has completely been changed: under the old Treaty on Commission 2007 Kazakhstan and Belarus in sum only held 43 % of the votes (21.5 % each), meaning that decisions could not be adopted without the consent of the Russian member. Today, every member of the Board holds one vote, i.e. all three countries have equal amount of votes.80

f) Observations on the Reform – A Shift Towards Independency and Supranationality? While the supranational character of the CU was disputed under the previous treaties, several aspects of the reformed Treaty on Commission 2011 indicate a shift of the CU and CES towards a supranational community. The most significant ones to mention are the creation of a Board whose members appear to be independent from Member States and the reform of the voting procedure. A closer look on the relevant provisions, however, relativises this impression as the effects of the reforms do not go as far as one might suppose: it is striking, that the competences of the Board to enact legally binding decisions are limited. This concerns the control of the Member States’ compliance with the law of the treaties as well as enacting important decisions, such as changes of the most important tariffs and all the technical regula-

78

Art. 12 Treaty on Commission 2011.

79

Art. 7 Treaty on Commission 2007.

80

See also supra, note 59.

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tions. Additionally, the proposals of all these measures prepared by the Board still require a positive decision by the Council of the Commission.81 At first glance the relevant provisions seem to aim at creating an institution vested with supranational competences which is similar to the European Commission. In reality however, this is not the case. The deficiencies mentioned above show that, even though the reforms increase its power and transfer additional competences, it remains controlled by the Council of the Commission and consequentially by the Member States. As a result one may summarise that rather than creating an independent institution within the Commission the Board can be compared with the Secretariat of the Commission under the former treaty with somewhat extended competences. Similar considerations concerning the effect of the reforms also apply to the reformed voting procedures. Ostensibly, the change from the weighted voting procedure to the new procedure – which presumably provides the independent Board members (from the Member States) with equal votes – insinuates that the Commission has been detached from national interests and is supposed to exclusively follow the aims of the CU and CES. Notwithstanding, the reach of the new allocation of votes, which seem to deprive Russia of its leading position, its effect was limited through the regulations which make the Board’s decisions dependent on the consent of the member-driven and consensus-based Council of the Commission. This last aspect, especially, raises the question of the efficiency of the Commission since it virtually gives a veto right to all Member States. This effect is intensified by the right of every member of the Council of the Commission, mentioned above, to bring a question which could not be agreed upon to the SEEC. On the one hand this brings a chance to find a political solution on the highest level, but on the other hand limits the practical competence of the Commission, rendering a presumably independent and supranational process ‘inter-governmental’. As indicated above, it is not clear if the reform of the voting procedure will bring significant changes. However, the new rules render the decision-making process of the Commission more complicated and thus, do not contribute to transparency of the system but make it difficult for citizens and traders to understand the mechanisms of the CU and CES. 81

See Attachment to the Regulations on activity of the Eurasian Economic Commission and on Functions and Competences of the Council of the Commission (note 76).

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IV. The Law of the EurAsEC – A Vehicle for Integration? The structure and objectives of the EurAsEC, CU and CES strongly resemble the concept of the European Communities, in particular the EEC. However, the success of the EC and the merits of European integration are closely linked with the jurisprudence of the European Court of Justice (ECJ). Only judgments such as Van Gend and Loos82 or Costa v. ENEL83 allowed the fleshing out of the somewhat vague concepts of the founding treaties and development of the Community to the supranational organisation it has become. This integrative jurisprudence was strongly favoured by the system of judicial control laid down in the treaties, namely in the concept of legal actions. While the EU Commission oversees Member States’ activities and their compliance with EC law, it was the preliminary ruling system in particular that achieved the integrative effect of the ECJ’s jurisprudence. Given the importance of judicial control over the Member States’ compliance with the treaties, it is interesting to examine the CU and CES legal framework and court system. However, before turning to the institutional and procedural aspects of the CU and CES law, the following section provides an overview of the scope of the relevant substantive law.

A. Substantive Law of the EurAsEC Customs Union and the Common Economic Space

By virtue, the definition of a customs union implies the abolition of customs duties which formally was achieved with the Customs Code84 that entered into force on 1 July 2010 for the Republic of Kazakhstan and the Russian Federation, on 6 July 2010 for the Republic of Belarus.

82

ECJ, Case 26/62, Van Gend and Loos v. Netherlands Inland Revenue Administration, 1963 ECR 1.

83

Id., Case 6/64, Costa v. E.N.E.L., 1964 ECR 1251.

84

Customs Code of the Customs Union (Tamožennyj kodeks tamožennogo sojuza), 27 November 2009, SZ RF 50 (2010), 6615. An English version of the Customs Code is available at: http://eng. customs.ru/index.php?option=com_content&view=article&id=1677:customs-code-of-the-customsunofficial-translationunion-&catid=34 (accessed on 17 January 2011).

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However, it has to be noted that the mere ratification of such document does not necessarily imply the effective abolition of all barriers to trade, furthermore, the ambitions of the EurAsEC aim higher than the CU which is only planned as an interim stage. Already Article 7 Treaty on the CU and the CES 199985 stipulated that “[…] [t]he Common Economic Space shall be built in stages.” And according to subsection 2 of the same norm, “[…] [t]he transition from one stage to another shall be conditioned by the actual achievement of the specific goals set by the present Treaty and the fulfilment of obligations by the Parties.” Article 7 (3) stipulates, that “[…] [t]he goal of the first stage shall be to complete the formation of the customs Union and the common customs territory.” And Article 7 (4) specifies the following step as the second stage [which] shall envisage the creation of the Common Economic Space, including the common (internal) market of goods, services, capital and labour, a unified economic policy, a single infrastructure and harmonization of the Parties’ legislation to provide for the functioning of the Common Economic Space.

The final goal of this integration process is described in the last subsection of the norm “[…] to agree on the target values of the main macroeconomic indexes.” Today, the dynamic process of economic integration seems to have reached the peak of its activity and the speed in which the process is driven does not seem to have precedence.86 While the Customs Union was formally completed on 5 July 2010,87 the next step of integration followed on 9 December 2010 when the Heads of State of three members signed the Decision on Progress of the Establishment of the Common Economic Space which was accompanied by eighteen treaties on the Common Economic Space.88 In this regard, it is particularly remarkable that the majority of 85

See supra, note 21.

86

The official website of the Customs Union lists 74 binding treaties and protocols of the Interstate Council and 854 Decisions of the Commission of the CU, see http://www.tsouz.ru/KTS/Pages/ KTS.aspx (accessed on 17 January 2012). The speed of this process is also criticised as neither the legal scholars nor national legislators nor the users are capable to react. Alexander Kozyrin, Das Zollrecht der Zollunion: Das Verhältnis zwischen supranationalem und nationalem Zollrecht, in: Dirk Ehlers/HansMichael Wolffgang/Ulrich Jan Schröder (eds.), Rechtsfragen der Eurasischen Zollunion (2011), 37, 44. 87

Common Statement of the Heads of the Member States of the Customs Union (Sovmestnoe zajavlenie glav gosudarstv členov Tamožennogo sojuza), 5 July 2010, available at: http://www.tsouz.ru (accessed on 17 January 2012). 88

Decision N 65, available at: http://www.tsouz.ru/MGS/MGS13/Pages/R_65.aspx (accessed on 17 January 2012).

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these documents have been ratified only within a couple of weeks, whereas it took years for a huge amount of treaties concluded under previous efforts for economic integration, if they were ratified at all.89

1. Substantive Law as Envisaged by the Customs Union Formally, the necessary steps for completing the Customs Union have been completed with the ratification and application of the Common Customs Tariff on 5 July 2010.90 Article 1 (3) Treaty on the Creation of the Common Customs Territory and Establishment of the Customs Union of 6 December 200791 defines the Customs Union as […] a form of trade and economic integration of the Parties that envisages the common customs territory without customs duties and economic restrictions in mutual trade with regard to goods originating from the common customs territory and with regard to goods originating from third countries and admitted for free circulation in this customs territory, except special protective, antidumping and compensation measures. At this the Parties shall apply the common customs tariff and other common regulative measures in trade with the third countries.

In other words, goods from Member States, and goods imported from third countries to the Member States may circulate freely which also implies a common trade policy towards third countries creating the necessity for the three countries to negotiate tariffs with their trade partners. In many cases States had to lower the rates, in particular Russia with an average of around 130 %, Kazakhstan 50 %, whereas Belarus, which still holds a non-market status, had to lower rates to around 40 %. On the other hand this also implies the need to increase certain rates, in particular for Kazakhstan which had by far the most liberal trade regime of the three countries.92 89

See supra, II.

90

Critically on the factual state of the CU: Olga Bakaeva, Rechtsprobleme der Durchsetzung der Interessen von Wirtschaftsbeteiligten in der Zollunion, in: Ehlers/Wolffgang/Schröder (note 86), Rechtsfragen der Eurasischen Zollunion (2011), 121. 91 Treaty on the Creation of the Common Customs Territory and Establishment of the Customs Union, 6 December 2007, available in English at: http://www.evrazes.com/print/docs/163 (accessed on 23 January 2012). 92

Bakaeva (note 90).

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These announcements do not mean that all necessary steps have been accomplished. In fact, a number of measures for achieving the factual completion of a customs union without any barriers to trade in goods still remain. This can be seen in the existence of numerous exceptions,93 and the need for improving technical procedures and other regulative issues.94 In this regard one has to await experiences made with the Customs Union, the application of the Customs Code, and the possibility for individuals to have recourse to the relevant provisions on the free movement of goods.

2. The State of Substantive Law as Envisaged by the Common Economic Space Article 7 (4) Treaty on Customs Union and the Common Economic Space of 1999 states that: the second stage shall envisage the creation of the Common Economic Space, including the common (internal) market of goods, services, capital and labor, a unified economic policy, a single infrastructure and harmonization of the Parties’ legislation to provide for the functioning of the Common Economic Space.

In accordance with this goal, in December 2009 the Member States of the Customs Union signed the Plan to establish the Common Economic Space.95 Sub-divided into five blocks, this plan sets a more detailed route for achieving the next integration level and implied the adoption of eighteen treaties, which entered into force on 1 January 2012.96 On 18 November 2011 the Heads of the Member States confirmed in a common declaration, that all named treaties were already ratified by the parliaments of the Member States of the CES, and that from 1 January 2012 there will be free movement of capital, goods, services, and workers within the CES territory. Furthermore, the Interstate Council has adopted the Treaty on the Eur-

93

There are for instance 409 groups of goods where differing tariffs apply within the CU, see Eike Albrecht/Alexey Vinogradov, Tarifäre und nichttarifäre Handelshemmnisse in der Zollunion, in: Ehlers/ Wolffgang/Schröder (note 86), 147, 153 and Bakaeva (note 90). 94

Albrecht/Vinogradov (note 93), 154 et seq.

95

See supra, II.

96

The plan is available at: http://www.customsunion.ru/info/4961.html (accessed on 17 January 2011).

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asian Economic Commission (Treaty on Commission 2011),97 which is the successor of the Treaty on Commission of the Customs Union (Treaty on Commission 2007),98 which has been celebrated as a document providing for the ‘genuine supranational organ’. The declaration of 18 November set an ambitious goal to establish an Economic Union by 2015.99 The first and most extensive block of treaties, titled as “Economic Policy” deals with eight of them. The first treaty concerns the macro economy of Member States in order to set up guidelines for adapting national economies to the new treaty framework. However, the following fields deal with the aim of preventing trade distortion, setting up rules on uniform principles for the regulation of monopolies, competition, subsidies – in particular in the field of agriculture – and public procurement. Apart from these objectives, the first block also comprises the fields of trade related investment measures and intellectual property which are regulated in two separate treaties. The second block consists of only two treaties and focuses on “Free Movement of Capital and Monetary Policy.” The first treaty aims at stipulating the framework for the free movement of capital and the regulation of financial markets. The second treaty aims at coordinating the principles of monetary policy. The third block is subdivided into four areas, each dealing with the various economic-politic fields of particular concern to the Member States. Firstly, the treaty ensures the organisation and administration of oil products and petroleum markets. A second treaty specifically deals with electricity, simultaneously ensuring transparency in this field. The same objective in the field of gas is dealt with in the third treaty, whereas the fourth treaty regulates the railway sector. The following two blocks slightly differ in their orientation, as the fourth block contains the Treaty on the Fight of Illegal Migration of Workers from Third Countries, and the Treaty on the Status of Migrating Workers and their Family Members which both focus on the free movement of workers and related issues. Block five contains technical rules, which are laid down in a single treaty.

97

See supra, note 45.

98

See supra, note 46.

99

A common currency was discussed but was not mentioned in the declaration.

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3. The Supranationality of the CU and CES: Substantive Law and Its Direct Application The treaties on the CU and CES contain provisions which create, define and regulate rights and thus may be described as substantive law. Some of these norms define the rights that must necessarily be granted for achieving the goals of economic integration. It is however questionable, to what extent one may speak of supranationality when it comes to the institutions of this organisation that were created for implementing the rules of the CU. Commonly depicted by the organisation itself, State officials,100 and most scholars,101 the CU is considered as a supranational organisation. Still – for the CU – this issue has been discussed controversially as some of the relevant features constituting supranationality may be questioned within the organisation.102 In general, supranationality requires that the international institution is vested with sovereign rights that unfold direct effect and applicability for courts, authorities and citizens in the participating States.103 In this regard, doubts on the supranational character of the only institution which is genuinely supposed to be supranational, the Commission, have been highlighted above. Still, another important element which suggests supranationality is direct applicability and direct effect of the organisations’ norms, an aspect which is furthermore decisive for the efficiency of a customs union. In this regard it is vital that the main actors in the field of Community trade identify and tackle barriers to trade, and rely on the provisions of the CU and CES. Direct applicability of international treaties typically depends on several aspects, firstly, the contracting parties may directly declare such effect, subsequently, the national legal orders determine, under what conditions individuals may recur to these norms, hence the treaty is deemed as 100

Meeting of the presidents of Russia, Belarus, and Kazakhstan, see http://eng.kremlin.ru/news/3090 (accessed on 17 February 2012). 101

Nußberger (note 13), 114; Kozyrin (note 86), 37.

102

Ibid., see also the discussion Dirk Ehlers, Eröffnung des 15. Außenwirtschaftstages, in: Ehlers/ Wolffgang/Schröder (note 86), 1, 3, 13. 103 On the evolution of supranationality in the EU see for instance Thomas Schmitz, Integration in der supranationalen Union (2001), 114, 133. The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the treaty grants the States the right to act unilaterally, it does this by clear and precise provisions.

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self-executing. In addition the relevant norm must be apt to provide rights for individuals in regard to its wording, aim and purpose. There are arguments that speak in favour and against attributing to the CU a supranational character. While the provisions in the legal system of the CU do not give a clear answer, an argument in favour is that legal actions may give certain rights to individuals. This however is only one indicator given that the competences of the courts are very limited. Some provisions of the Customs Code appear to illustrate the supranational character of the CU. Take for instance Article 1 (2)104 which stipulates primacy over national legislation and is accepted to be directly applicable. Much depends on the national courts and their willingness to refer to the CU norms and to use the ‘preliminary ruling procedure’. This is possible, given that the Customs Code is directly applicable within the constitutions of the Russian Federation105 and Kazakhstan,106 providing the possibility to directly apply international law. In that regard, the Belarus legal regime differs. Nonetheless, in case the other two States grant direct applicability it is expected that Belarus would also have to do so despite possible frictions with its constitutional law.107 104 “Customs regulation in the Customs Union is performed according to the customs legislation of the Customs Union, and in the part that is not regulated by such legislation – according to the legislation of the Member States of the Customs Union”. 105 The Russian constitution states in Art. 15 (4) “The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied.” The Constitution of the Russian Federation (Konstitucija Rossijskoj Federacii), 25 December 1993, English text available at: http://www.constitution.ru/en/10003000-01.htm (accessed on 17 January 2012). More extensively on the openness of the Russian constitution for international and European law see Mahulena Hofmann, Von der Transformation zur Kooperationsoffenheit (2009), 327 et seq. 106

A similar provision can be found in Art. 4 (3) Constitution of the Republic of Kazakhstan: “International treaties ratified by the Republic shall have priority over its laws and be directly implemented except in cases when the application of an international treaty shall require the promulgation of a law.” Constitution of the Republic of Kazakhstan (Konstitucija Respubliki Kazahstan), 5 September 1995, English text available at: http://www.constcouncil.kz/eng/norpb/constrk/#section1 (accessed on 17 January 2012). See also Nußberger (note 13), 114. 107 The Constitution of the Republic of Belarus does not contain any provision which would pronounce direct applicability of international treaties. It only states in Art. 8 (1) that “The Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles.” The Constitution of the Republic of Belarus (Konstitucija Respubliki Belarus), 15 March 1994, English text available at: http://president.gov.by/ en/press10669.html (accessed on 17 January 2012). The legal power of international treaties signed by Belarus is also contested: according to the constitution, the constitutional court rules on “[…] the conformity of instruments of interstate formations of which the Republic of Belarus is part, edicts of the

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In 2012 however, the doubts on the supranationality of CES law will cease to exist since Article 5 of the new Treaty on Commission 2011 states that “[…] the decisions of the Commission are an integral part of the legal framework of the CU and the CES are legally binding and directly applicable in the member States.” Whether supranationality remains a formal declaration or not, remains to be seen in the near future.

B. The Court of the EurAsEC

The Community Court of Justice fulfils the function of settling economic disputes between the parties on matters relating to the implementation of the resolutions of EurAsEC bodies and the provisions of the treaties adopted within the EurAsEC. Given the importance of legal aspects for the success of economic integration, the article will now focus more extensively on the composition, function and jurisdiction of the court, starting with a historic overview.

1. History The EurAsEC Treaty stipulates that the organisation shall have a court.108 However, initially it only rudimentarily described the jurisdiction of the Court by stating that, President of the Republic of Belarus which are issued to the execution of the law, the Constitution, the laws, decrees and instruments of international law ratified by the Republic of Belarus.” Legal literature does not accept this provision as an argument for priority of international treaties. According to this opinion national courts rather prefer to apply the national legislation even if it contradicts international treaties signed by Belarus. This is because the Law on International Treaties of the Republic of Belarus provides in Art. 33 that norms of the international treaties of the Republic of Belarus are integral part of the legislation and are directly applicable. On the other hand it stipulates the same legal power of this norm to that of the act through which the consent of Belarus was expressed. Given that all treaties of Belarus are ratified by ordinary law, all provisions of the CU and CES treaties will have the legal power of ordinary legislation of the Republic of Belarus and may thus be changed by an ordinary law. Notwithstanding a potential breach of international treaties the new national legislation may be applicable till the constitutional court will decide on the conformity of the new legislation to the international treaty. Ivan Saeev, Sootnošenie meždunarodnyh dogovorov i nacional’nogo zakonodatel’stva Respubliki Belarus (Relationship between International Agreements and the National Legislation of the Republic of Belarus), Belorusskij Žurnal Meždunarodnogo prava i meždunarodnyh otnošenij 3 (2003), available at: http://elib.org.ua/belorussianlaw/ua_show_archives.php?subaction=showfull&id=1095931115& archive=0411&start_from=&ucat=& (accessed on 17 January 2012). More extensively on the openness of the Belarusian constitution for international and European law see Hofmann (note 105), 407 et seq. 108

Art. 3 EurAsEC Treaty.

596 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 […] [t]he Community Court shall ensure that this Treaty and other treaties in force in the Community framework as well as resolutions adopted by the organs of EurAsEC are applied by the Contracting Parties in a uniform manner. The Community Court shall also deal with disputes of an economic character arising between the Contracting Parties on matters relating to the implementation of resolutions of EurAsEC organs and the provisions of the treaties in force within the Community, and give interpretations and rulings on them.109

The functions and tasks were to be complemented later by other documents. In practice, instead of establishing a new EurAsEC Court as originally envisaged, these provisions were implemented with the provisional EurAsEC Court which from the very beginning was transferred to the CIS Economic Court located in Minsk.110 Notwithstanding its provisional character the EurAsEC and Customs Union still currently benefit from the existing infrastructure of the CIS Court.111 However, it is still envisaged that in the future the EurAsEC will found its own court. Though the institutional implementation does not meet the ambitions set, the legal framework was modernised in 2010. The Interstate Council, in 2010, also adopted a revised Statute on the Community Court that amended the former statute,112 which was relatively short and considered to be insufficient for regulating the Court’s activities.

2. Composition The EurAsEC Court is composed of two judges per party,113 which means that for the EurAsEC it comprises ten judges, whereas the EurAsEC Court Statute provides that, for the CU and CES, only the six judges from the CU Member States shall 109

Art. 8 (1) and (2) EurAsEC Treaty.

110

CIS Agreement on the Status of the Economic Court of the Commonwealth of Independent States (O statuse Ekonomičeskogo suda Sodružestva nezavisimyh gosudarstv), 6 July 1992, Bjulleten’ meždunarodnyh dogovorov 9 (1994), 18. 111 On the CIS Economic Court see also Kembayev (note 13), 59; Gennady M. Danielenko, The Economic Court of the Commonwealth of Independent States, New York University Journal of International Law and Politics 31 (1999), 897. 112 Rešenie N 122 Mežgosudarstvennogo Soveta EvrAzES ot 27.04.2003, Statute of the EurAsEC Court (Statut suda EvrAzES), 27 April 2003, last amended by Decision N 502 of 5 July 2010, available via: http://evrazes.com/docs/base (accessed on 17 January 2012) (EurAsEC Court Statute). 113

Art. 3 EurAsEC Court Statute.

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adjudicate on disputes concerning the CU and CES.114 Furthermore, procedures foresee the possibility to appeal the first instance decisions in proceedings on the basis of the Treaty on Reference of the Business Entities to the EurAsEC Court.115 In this case the decision might be reviewed by an Appeal Chamber in the second instance. The Appeal Chamber is formed by the judges of the Court who have not participated in the first instance proceedings. Considering that only six judges are entitled to adjudicate CU and CES disputes at the EurAsEC Court it follows that the Appeal Chamber does not in fact substantively differ from the first instance, as all the judges work on the same level in the same institution.

C. Jurisdiction of the Court

Chapter II of the amended Statute of the Court provides that the Court has jurisdiction to review, in particular, four legal areas: (1) the conformity of the acts of the organs of the CU with the treaties of the CU, (2) challenges of acts and omissions of CU organs, (3) to interpret the CU treaties and legal acts of the CU organs, and (4) to settle disputes between members of the Customs Union as well as between members and the organs of the CU.116 As regulated in the EurAsEC Court Statute, the EurAsEC Court has competence in these matters.117 Furthermore, the Statute stipulates that the competence of the Court may be extended by a treaty without amending the Statute.

114

The EurAsEC Court Statute does not refer to the CES. Still, since the CES is the next step of integration of the CU and the CES Commission under the Treaty on Commission is the successor of the CU Commission it is to assume that all provisions on the Court applicable to the CU are also applicable to the CES. 115

EurAsEC Treaty on the Reference to the Court of the Eurasian Economic Community of Business Entities on Disputes under the Framework of the Customs Union and Peculiarities of relevant Court Proceedings (O dogovore ob obraščenii v sud EvrAzES hozjajstvujuščih subektiv po sporam v ramkah tamožennogo sojuza i osobennostjah sudoproizvodstva po nim), 9 December 2010, available via: http:// evrazes.com/docs/base (accessed on 18 January 2012). Despite the agreement to ratify the treaty before 1 May 2011 it has not yet entered into force (25 July 2011); EurAsEC Interstate Council decision 534 of 9 December 2010, available via: http://evrazes.com/docs/base (accessed on 18 January 2012) (Treaty on Reference to the Court of Business Entities ). 116

Art. 13 (4) EurAsEC Court Statute.

117

Art. 13 (6) EurAsEC Court Statute.

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Court proceedings can be initiated by several entities in accordance with different proceedings, which are briefly addressed below. In order to facilitate the understanding of functions, reference will be made to the legal actions under the Treaty on the Functioning of the European Union (TFEU).118

1. Action for Failure to Fulfil an Obligation The EurAsEC Court Statute provides that the Commission as well as Member States can bring cases to the Court in order to legally review them. The basic structure of the procedure, thus, resembles that of Articles 259 and 260 TFEU. The decisions of the EurAsEC Court in regard to the disputes among and between Member States and Commission are final (Article 22 EurAsEC Court Statute), and in matters of the CU it will be binding on the Member States of the CU (Article 20 (1)). The first option for bringing a matter to the EurAsEC Court is through an action initiated by the Commission of the CU. As noted earlier, the Commission has the function of monitoring the implementation of the international treaties, and bringing the Customs Union into effect.119 This function, and the experiences gleaned from the EEC (concerning the activities of the European Commission)120 make it a priori to expect that the Commission will actively initiate disputes against the Member States, once it becomes aware of infringements. In practice however, this assumption appears relatively unrealistic, due to the factual dependency of the Commission on the Member States – thereby strongly affecting its role – for independent and active surveillance of the treaty.121 Conversely to the EEC,122 it is likely that the Member States will contest the decisions of the Commission. At this early stage, it is too soon to undermine

118 Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (Consolidated Version) (TFEU). 119

Art. 6 Treaty on Commission 2007.

120

In comparison see Art. 17 Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13 (Consolidated Version). 121 122

See supra, III. B. 2. 2.

From 1960 to 1999 only four cases were initiated by Member States. In the same period the Commission initiated 1604 cases, Karen J. Alter, Establishing the Supremacy of European Law (2001), 15.

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this assumption with references to the practice in the CU.123 However, considering, that in the EC over 35 % of cases before the ECJ were initiated via this procedure, one has to keep expectations low for the EurAsEC given the dependence of the Commission on Member States.124 Similar to the framework in the EEC, Member States may initiate proceedings against other Member States if they consider that the latter has failed to fulfil its obligations under the treaty.125 Since Member States are in principle interested in ensuring that their national traders have free access to the markets of the CU one may, on the one hand, assume that they efficiently monitor the compliance of other Member States. However, statistics in the EU have shown that legal action initiated by States in practice is rarely used.126 Besides the interests in trade in goods relations between States are to a high degree influenced by further issues which affect their readiness to initiate claims against each other. For relations among the EurAsEC and CU States, the degree of politicisation is even more striking; for example the high dependency of Belarus on Russia.127 Furthermore one has to take into consideration that it is usually up to traders to identify trade barriers and they will have to notify the relevant national authorities. In addition, the decision-making process from this initial point to an infringement procedure may become extremely cumbersome especially since it is possible to assume that diplomatic channels might preliminarily be involved. In both cases it is possible to conclude that the decision to initiate disputes is finally taken by national bodies, and is thus politicised. The lack of an independent institution with the aim of acting as a ‘guardian of the treaties’ gives rise to the expectation that pressure on Member States to achieve compliance with EurAsEC-law will remain limited. 123 So far there was only one dispute under the CU Treaty dealing with a Belarus complaint against Russian customs duties on the export of crude oil and oil production. The dispute was settled amicably: CIS Economy Court decision 01-1-Е/2-10 of 10 March 2006, available via: http://www.sudsng.org (accessed on 18 January 2012). 124

The discrepancy becomes even more striking if one considers that statistically, only 7 % of all infringement procedures initiated by the European Commission end at the ECJ. Alter (note 122), 15. 125

Art. 13 (2) EurAsEC Court Statute.

126

See supra, note 122.

127

E.g. Belarus was saved from insolvency by the bail-out credit of the EurAsEC provided mostly by the Russian Federation, see RIA Novosti, 24 May 2011, EurAsEC to decide on $ 800 mln bailout tranche to Belarus on June 4, available at: http://en.rian.ru/world/20110524/164204585.html (accessed on 20 February 2012).

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All in all the procedural norms laying down the requirements for the ‘action for failure to fulfil an obligation’ do not promise an efficient supervision regime for market-rule compliance.

2. Claims by Business Entities The opening of the Court to private persons and legal entities is probably the most innovative feature of the Statute. The procedural aspects on this type of claim are regulated by the Treaty on Reference of the Business Entities to the EurAsEC Court. The Treaty stipulates that private persons and legal entities may file complaints in order to contest legal acts, real acts,128 and omissions of the Commission. In this regard the provision bears some resemblance to the action for annulment laid down in Article 263 TFEU. Still, while in the EU private entities enjoy the possibility to have acts of all institutions and agencies revised – as long they are “[…] of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”129 – the EurAsEC equivalent is limited to acts of the CU Commission and later to those of the Eurasian Economic Commission. Since acts of other organs of the CU – in particular the Interstate Council – are not mentioned, this highlights a structural deficit in the legal protection system. Apart from the interest in procedures to annul Community acts, private parties may have recourse through claiming damages for harm done due to the acts of the organisation and its institutions. While the TFEU deals with this issue in Article 340, the EurAsEC Court does not have jurisdiction to adjudicate on damage claims.130 Since the EC system of State liability for non-compliance with community law was partially developed based on this provision,131 it is not expected that in the near future the EurAsEC legal system will feature a similar mechanism. 128

‘Real act’ in this provision signifies any factual act of an administrative or governmental organ possibly having legal implications. 129

Art. 263 (4) TFEU.

130

Art. 11 (4) Treaty on Reference to the Court of Business Entities explicitly provides that damages claims cannot be reviewed by the Court. 131

ECJ, Joined cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italy, 1991 ECR I-5357; id., Joined Cases C-46/93 and 48/93, Brasserie de Pêcheurs SA v. Federal Republic of Germany and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and Others, 1996 ECR I-1029.

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A procedural aspect worth noting is the requirement for private persons or legal entities to bring the matter to the Commission before filing their complaint to the EurAsEC Court. Only if the Commission does not react within two months, may they proceed with their claim.132

3. Preliminary Ruling Procedure The most important legal action for European integration has been the ‘preliminary ruling procedure’. It is mainly this procedure which has efficiently contributed to the identification of central legal questions arising from collisions of national law and community law, as courts all over the Community could submit requests to Luxembourg. The EurAsEC legal framework seems to provide a similar instrument, laid down in Article 3 Treaty on Reference of the Business Entities to the EurAsEC Court. This norm obliges the supreme courts of the CU Member States to bring requests regarding the application of the treaties of the CU and legal acts of the CU Commission and later of the Eurasian Economic Commission before the EurAsEC Court, if the conclusion of the request is decisive for the case before the supreme court, and there is no possibility to appeal the decision. Firstly, there are several crucial aspects that need to be clarified. In the EEC, the issue of whether Community law enjoys direct effect emerged relatively quickly133 as a central question. In the absence of treaty provisions, the affirmative decision was taken by the ECJ. Considering the importance of direct application of primary law for economic integration in the CU, one would assume that the EurAsEC likewise attributes this effect to EurAsEC treaty law. There is no relevant treaty provision which might indicate whether CU Member States consciously left this question open or not. In this regard it is important to note that the constitutions of Member States stipulate that international law – and thus EurAsEC primary law – ranks between constitutional law and federal law.134 Given this dominant rank in the hierarchy of norms it is in principle possible to assume that EurAsEC-primary law may enjoy primacy at least over federal law. However, one will have to wait and see if the Court pronounces this direct effect. It will, to a large extent, 132

Art. 4 Treaty on Reference to the Court of Business Entities.

133

The decisions Costa v. E.N.E.L. (note 83) and Van Gend and Loos v. Netherlands Inland Revenue Administration (note 82) were made in 1963/64, e.g. six respectively seven years after the creation of the EEC. 134

See Art. 15 of the Russian Constitution.

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depend on this decision and the acceptance of the Member States, as to whether the level of integration will reach deeper than that of previous organisations.135 A further deficit of the EurAsEC provisions on preliminary rulings concerns the question regarding which courts are entitled to submit preliminary ruling requests to the Court in Minsk. At first glance the provision seems to provide good possibilities for contributing to integration in the CU and later in the CES. However, a comparison with the EC provision again reveals deficits: under Article 267 TFEU “any court or tribunal of a Member State, […] may […] request the Court to give a ruling thereon.” In contrast, the EurAsEC provision136 only stipulates that “the supreme courts of the CU member states” are obliged to submit the request about the application of the Treaties of the CU and legal acts of the CU Commission (Eurasian Economic Commission) before the EurAsEC Court, if the conclusion on request is decisive for the case before the supreme court, and there is no possibility to appeal the decision. The provision thus excludes courts of lower instances from submitting requests under the preliminary ruling procedure. The consequences of the difference between the EC provision and the EurAsEC stipulation cannot be overstated: statistics in the EC have shown that the lower courts especially were more willing to bring the matter to the ECJ than higher courts (which were rather reluctant to accept a higher body). In addition, it is a requirement that cases must have reached a supreme court, which in the systems of EurAsEC States automatically excludes disputes of minor economic value. In the EEC however, cases of almost no economic significance such as Costa v. ENEL (with a value of around € 2) have played an enormous role in the process of economic integration. A further aspect concerns the introduction of the concept of supranational law and the psychology of national courts. In the EEC it has been a cumbersome process to achieve (national) courts’ acceptance and support of the ECJ jurisprudence and its position in the European legal system by making use of the preliminary ruling procedure. In the end this success was closely related to the attitude of judges who accepted

135 Even though the Court already commented on the effect of the Integration Committee’s acts in 2006 (see supra, III. 2. 2.) this non-binding decision does not have any precedence for the CU: given the elementary differences between the purposes of the EurAsEC-FTA and the CU, one will have to await the relevant decision of the Court which takes this level of integration into account and which may in addition differentiate between primary and secondary law. 136

Art. 3 Treaty on Reference to the Court of Business Entities.

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the EC legal system, the political value of European integration and the work and argumentation of the ECJ.137 Finally, a considerable challenge for the EurAsEC system lies in the structural differences between the legal cultures of the five founding members of the EurAsEC, and the three members of the CU and CES. Given that the national court systems of the CU still lack efficiency it is doubtful that the EurAsEC legal framework will achieve results similar to those in the EC. However, the consequent application of EurAsEC law might help to promote CU and CES law and strengthen the rule of law in general. This process will require time and considerable support from domestic judges. Especially considering the enormous territory of the CU with its fragmented jurisprudence, there are serious doubts that the preliminary ruling procedure will be the same success story as it has become in the EU.

V. Conclusion Extemporaneously, the organisation and structure of the CU and CES in the framework of the EurAsEC resemble in various aspects that of the EU and its predecessors: the Interstate Council of the EurAsEC and the SEEC of the CU and CES as the supreme body fulfils similar functions as the European Council in the EC, the composition and functions of the Integration Committee, the Commission of the CU and the Eurasian Economic Commission are comparable to the Council of the EU and the European Commission while the Commission of Permanent Representatives is strongly reminiscent of COREPER (Comité des représentants permanents). A closer view, however, reveals considerable differences to the EC and EU. In general, the system is politically far more dependent on the ember States than the early EC system given that the CU Commission and its successor, the Eurasian Economic Commission (which might be seen as the EurAsEC equivalent to the European Commission) only remotely has the competences that, right from the beginning, were attributed to the High Authority under the EC for Steel and Coal. 137 For an overview of the dialectic process of European jurisprudence and the role of national courts see Thomas Schmitz et al., Constitutional jurisprudence in the member states on the participation in the process of European integration (2011), available at: http://lehrstuhl.jura.uni-goettingen.de/tschmitz/ Lehre/Jurisprudence-on-integration-2.htm (accessed on 18 January 2012).

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Even though the functions of the CU Commission and of the Eurasian Economic Commission resemble that of the European Commission’s, qualitative deficits soon become apparent. One of the main weaknesses lies in the dependence of the governments of the Member States. Even the new created Eurasian Economic Commission is strongly dominated by the Council of the Commission, which is composed of the deputy Heads of Government. This illustrates that this body rather serves as an organ representing Member States interests than as a supranational institution that initiates Community legislation, or acts as a guardian of Community law. This influence of national interests on the institution which presumably is to serve as the ‘engine’ or ‘motor of integration’ does not only have consequences for the decision making process, but also affects the system of judicial control. A striking deficit is the absence of an independent guardian of the CU and CES law, given that the organisations lack a comparable equivalent to the European Commission which exclusively represents Community interests. Apart from the deficits stemming from the Commission’s architecture, it is likely, that the system of legal actions does not meet the practical requirements necessary for an efficient control of the implementation of Community law. Even though there is a legal action similar to the preliminary ruling procedure under EU law that serves the purpose of achieving compliance of national laws with the CU and CES law, its effect is limited. It merely addresses supreme courts which makes it rather unlikely that disputes at lower domestic courts – even though being of central interest for the CU or CES – will get to the EurAsEC Court. However, the deficits in the legal system are not limited to these aspects but also materialise in the composition and work of the Court. Another significant problem is the fact that – in legal actions of private persons and legal entities – a single institution, composed only of six judges, serves both as the court of first instance and the appeal chamber. This composition fails to provide the institutional independence necessary for proper reviews and for decisions to be taken. Even though the CU and CES architecture goes far beyond previous organisations in this region, the decision-making structure does not appear to be sufficiently robust and independent to ensure that interests of the CU and CES prevail against national interests. With SEEC and Eurasian Economic Commission, there are two bodies that

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can take legally binding decisions. However, despite the new majority voting procedure in the Board of the Commission, decisions may in the end become subject to a decision taken by consensus in the Council of the Commission or SEEC. Before the 2011 reform, the system suffered from a strong Russian dominance that created a permanent asymmetry which favoured by far the largest and most economically powerful Member State. This seems to have changed with the new voting procedure. In this regard, considering the position of Russia in preceding organisations, its consent to share its leading position with the other members is rather surprising. However, by conceding more rights to the other members Russia does not renounce its rights but indicates that this concession was necessary for achieving the signing of the treaties. Eventually, the fact that under the new treaties all States may block the activities of the CU and CES will make the integration process cumbersome. Concerning the participation of citizens it is no surprise that the EurAsEC system does not intend to promote democratic values especially, since this was not even an issue in the beginnings of the EC, and initially neither Parliamentary Assembly nor the European Parliament played any major role in the early process of European integration. For that reason, relevant deficits in the EurAsEC have been neglected in this study. However, it is striking that not even the Interparliamentary Assembly’s self-presentation mentions a democratic purpose the body might contribute to the organisation’s concept. In sum one may conclude that the three Member States of the CU and CES have created an organisation that has reached an unprecedented level of economic integration in this region. With regards to the ambitions declared for the future and the short time (only four years) in which a relatively deep level of economic integration has already been achieved, it becomes visible that the Eurasean integration process differs significantly from previous attempts. Notwithstanding, this process cannot yet be declared as complete given that as the concept is based on intergovernmental decisions rather than on a supranational concept. Hence, it makes the system susceptible to national interests, rendering further integration process difficult to predict. The existing legal framework alone is not sufficient to ensure that the aims can be achieved and provisions indicate that States are still reluctant to attribute strong competences to the CU

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and CES. Consequently, the future of the CU and CES considerably depends on the poli-tical will of the Member States. It is possible that the course taken leads to the goals announced in the treaties but also that one of the three States may bring the further integration process to an end. With the above possibilities in mind, combined with Russia’s WTO accession and its recent announcements of spectacular growth rates of 40 % of trade,138 it might be justified that expectations on the success of the CU and CES are higher than ever before; however, it promises interesting developments and will certainly attract higher interest than earlier efforts for post-Soviet economic integration.

138 ‘Explosive’ swallows of the Customs Union (‘Vzryvnye’ lastočki tamožennogo sojuza) (an Interview with Sergey Glaz’ev, Secretary General of the CU), available at: http://www.customsunion.kz/ info/4371.html (accessed on 18 January 2012).

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The UN Security Council and International Law in 2011 SUSANNE WASUM-RAINER( AND CHRISTOPHE EICK((

I. Introduction It is often said that the United Nations Security Council is a political organ.1 Indeed, in the day-to-day business of the Council, political considerations tend to dominate the discussions. This is not to say, however, that the Council operates in a legal vacuum, or that its decisions have no bearing on international law. The Council acts within its constitutional framework, the Charter of the United Nations.2 Many of the Council’s decisions are grounded in and motivated by international law. Under its responsibility for the maintenance of international peace and security, the Council may take action in order to secure compliance or to enforce international law. In fact, the Council remains the only body within the international legal system that can take lawful measures to uphold international peace and security that would otherwise violate the law.3 It is thus not entirely surprising that legal considerations play an important role when the Council discusses and takes action on issues that are included on its agenda. On 12 October 2010 Germany was voted as a new member onto the United Nations Security Council, together with Portugal, India, Colombia and South Africa. (

Federal Foreign Office Berlin, Legal Adviser.

((

Permanent Mission of Germany to the United Nations in New York, Head of Political Department and Security Council Political Coordinator for Germany. 1

ICJ, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, ICJ Reports 1948, 57, 64. 2 3

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

Michael Wood, The UN Security Council and International Law, Hersch Lauterpacht Memorial Lectures, 7 November 2006, 3, available at: http://www.lcil.cam.ac.uk/Media/lectures/pdf/2006_ hersch_lecture_1.pdf (accessed on 25 November 2011).

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Since 1 January 2011 Germany has served as a non-permanent member of the Security Council in a tenure that lasts for a period of two years. This article highlights some of the issues dealt with by the Security Council during the first year of German membership which, from both a German foreign policy and an international law perspective, appear to be most relevant. This includes the following issues in particular: clear and fair procedures in the case of targeted sanctions imposed by the Security Council, the strengthening of International Humanitarian Law through a better protection of children in armed conflict, the admission of new members to the United Nations and the focusing and the application of the concept of ‘Responsibility to Protect’. It should also be briefly noted in this context that the Security Council, under the German presidency in July 2011, held an open debate on the security implications of climate change.4 In its Presidential Statement of 20 July 2011, eventually adopted unanimously after very tough negotiations led by Germany, the Council acknowledged for the first time that climate change may, in the long run, aggravate certain existing threats to international peace and security. The Presidential Statement also contains a request to the Secretary General to include in his reports to the Council conflict analysis and contextual information on, inter alia, possible implications of climate change […], when such issues are drivers of conflict, represent a challenge to the implementation of Council mandates or endanger the process of consolidation of peace.5

The Presidential Statement thus ensures that the security implications of climate change will remain on the Council’s agenda, particularly when dealing with crisis regions.

II. Sanctions and ‘Clear and Fair Procedures’ A. Targeted Sanctions

In 2011, the Security Council continued its practice to impose targeted sanctions against individuals and entities. Resolution 1970 (2011) established a new sanctions 4

Maintenance of international peace and security: the impact of climate change, Concept note, UN Doc. S/2011/408 (2011). 5 UN Doc. S/PRST/2011/15 (2011). For further information see Peter Wittig, Climate Change and International Peace and Security: The Open Debate in the United Nations Security Council on 20 July 2011, German Yearbook of International Law (GYIL) 54 (2011), 627.

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regime, including an assets freeze and a travel ban, against leading figures of the Gaddafi regime. The Security Council also decided to split the Al-Qaida/Taliban sanctions regime into two separate regimes, one directed against the Al-Qaida network and its affiliates, the other against the Taliban.6 In all, the Security Council maintained twelve sanctions regimes. Considering that each sanctions regime comprises a sanctions committee set up as a subsidiary organ of the Security Council (and in which all fifteen Council members are represented), Council members devoted a considerable amount of their time and resources to sanctions-related activities. In the context of the various sanctions regimes, the selection, role and function of ‘panels of experts’ or ‘monitoring groups’, small, civilian fact-finding teams supporting the work of the sanctions committees, was sometimes controversially debated. Thus, when the Council adopted Resolution 1984 (2011) extending the mandate of the Panel of Experts working ‘under the direction’ of the Iran Sanctions Committee,7 the Russian delegate was of the view that it is most important for the panel to comply strictly with its mandate, act impartially and independently, and use all reliable information when preparing its conclusions and recommendations. Unverified or politicised information does not help to promote any initiative of the Security Council or its committees. We note the importance of the experts exercising sensible caution with respect to the information they receive.8

By contrast, the delegate of the United States emphasised that “United Nations sanctions panels are a well-established independent tool for improving the implementation of United Nations sanctions. They play a critical role in enhancing the credibility of Security Council resolutions.”9 What is beyond dispute is that the panels of experts have developed into key companions to the targeted sanctions the Council imposes. Their reports, often covering several hundred pages of detailed information and analysis are invaluable tools in ensuring that sanctions are carefully targeted in support of clear objectives and that they remain effective.10 Their findings and 6

SC Res. 1988 (Taliban) and 1989 (Al-Qaida), of 17 June 2011.

7

SC Res. 1984 of 9 June 2011, Recital 2 Preamble.

8

UN Doc. S/PV.6552 (2011), 2.

9

Ibid., 3.

10

See Alix J. Boucher/Victoria K. Holt, Targeting Spoilers: The Role of United Nations Panels of Experts, Stimson Center Report No. 64 (2009).

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recommendations, when made public, play an important role in enhancing transparency in the application and implementation of sanctions regimes.11

B. Fair and Clear Procedures

The year 2011 also saw some notable developments on the issue of ‘fair and clear procedures’ for placing individuals and entities on sanctions lists and for removing them. As in the past, these developments centred on the ‘1267 Committee’ or ‘AlQaida Committee’ whose listings have become the subject of litigation in both regional and national courts. The Security Council had formerly responded to growing concerns over the lack of ‘due process’ in 2009 by deciding that an independent and impartial Ombudsperson, to be appointed by the Secretary General, should assist the Committee when considering de-listing requests. It was only in 2011, however, that the first two requests for de-listing were fully considered in accordance with the procedure involving the Ombudsperson, as set out in Security Council Resolution 1904 (2009). It is worth noting that the Al-Qaida Committee, after considering the observations of the Ombudsperson, approved, by consensus, these de-listing requests.12 At the time of the adoption of Resolution 1904 (2009), some States voiced their disappointment that the Ombudsperson had not been accorded the right to make recommendations (as opposed to mere observations) to the Committee on a delisting request. While the Ombudsperson herself had expressed the view that despite this limitation the process “may be adequate” to bring “sufficient fair process,”13 Council members, including Germany, brought the matter up again when the mandate of the Office of the Ombudsperson came up for renewal in June 2011.14 Security Council Resolution 1989 (2011), adopted on 17 June 2011, now mandates the Ombudsperson to draft and circulate to the Al-Qaida Committee a ‘Comprehen11 See also the statement by the representative of Germany after the vote on SC Res. 2017 of 31 October 2011, UN Doc. S/PV.6644, 2. 12

SC Press Releases SC/10281 and SC/10282 of 15 June 2011.

13

Presentation by the Ombudsperson delivered to the 41st meeting of the Council of Europe Committee of Legal Advisors on Public International Law (CAHDI), 18 March 2011, 3, available at: http:// www.un.org/en/sc/ombudsperson/pdfs/CAHDI_remarks_18.03.2011_E.pdf (accessed on 25 November 2011). 14

UN Doc. S/PV.6536 (2011), 9.

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sive Report’ that will, “based on an analysis of all the information available to the Ombudsperson and the Ombudsperson’s recommendation, lay out for the Committee the principal arguments concerning the delisting request.”15 Moreover, and perhaps more importantly, a recommendation by the Ombudsperson in favour of de-listing can be disregarded by the Committee only through a consensus determination or by a decision of the Council. The first de-listing considered by the Committee under the new procedure led to the delisting of one individual, despite the initial objection of one member of the Committee, as no consensus to keep the individual on the list could be found, and the matter was not referred to the Council. Thus, in practice, a recommendation by the Ombudsperson to de-list an individual or entity may now well trigger a sunset clause. The Ombudsperson’s second report to the Security Council, characterised this most recent de-listing procedure as representing “a significant step forward in terms of enhancing the fairness and transparency of the process,”16 and Council members have generally welcomed the steps taken.17 The Security Council has found it appropriate to reflect on, in a Presidential Statement adopted on 28 February 2011 in connection with the first report of the Ombudsperson,18 “its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations and […] Article 103 of the Charter.”19 The purpose of this statement is clear: to underline that any improvement on ‘fair and clear procedures’ must not detract from the authority of the Security Council to make legally binding decisions with which States must comply in all circumstances. In this regard it is important to recall that the Security Council is not a legislator or a court, and that it is not particularly helpful to seek to encapsulate the nature of the Council in any short description derived from domestic systems.20 Rather, the premise on which any discussion of ‘fair and clear procedures’ should start lies in the 15

SC Res. 1989 of 17 June 2011, Annex II, para. 7 c) (emphasis added).

16

UN Doc. S/2011/447 (2011), para. 43.

17

The representative of Germany spoke of a “major achievement,” UN Doc. S/PV.6557 (2011), 3.

18

UN Doc. S/2011/29 (2011).

19

UN Doc. S/PRST/2011/5 (2011).

20

Wood (note 3), 11.

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unique and central role of the Council within the collective security system. Targeted sanctions have been imposed against, for instance, those involved in the nuclear weapons programmes of Iran and North Korea, those implicated in mass atrocities in the Democratic Republic of the Congo or in the Sudan, or terrorists of Al-Qaida. All measures, including those taken within the Al-Qaida sanctions regime, “are preventative in nature and are not reliant upon criminal standards set out under national law.”21 The Ombudsperson, in developing her own standards for dealing with delisting requests, noted that [I]t is evident that the standard applicable in criminal proceedings, nationally, regionally or internationally, is not appropriate for assessing the information and circumstances related to a listing by the Committee. The sanctions are not intended to punish criminal conduct. Rather, relevant Security Council resolutions demonstrate that the aim is twofold: to hamper access to resources in order to impede, impair, isolate and incapacitate the terrorist threat from Al-Qaida […], and to encourage a change of conduct on the part of those who are members of Al-Qaida […]. In these circumstances, the standards applicable to a determination of criminal guilt or innocence are obviously of a different nature and serve a distinct purpose from that of the sanctions.22

This being said, and because of the serious restrictions imposed on individuals and entities through the application of sanctions, the Security Council was well advised to enhance the mandate of the Ombudsperson. It is worth noting that the individual listed at the centre of proceedings before the European Court of Justice in Luxemburg, Mr. Yasin Qadi, has availed himself of the new procedures to submit, for the first time, a de-listing request to the Ombudsperson. It is noteworthy that there has been little (if any) discussion in the Security Council on establishing similar procedures involving an Ombudsperson to sanctions regimes other than the Al-Qaida regime. When the split occurred within the ‘old’ Al-Qaida/ Taliban sanctions regime, the Taliban sanctions regime reverted to the ‘Focal Point’ system established through Resolution 1730 (2006) applicable to ‘country-specific’ sanctions regimes.23

21

SC Res. 1989 of 17 June 2011, Recital 14 Preamble.

22

Report of the Office of the Ombudsperson pursuant to Security Council Resolution 1989 (2011), UN Doc. S/2011/447 (2011), Annex III, para. 13. 23

SC Res. 1730 (2006) of 19 December 2006. The Focal Point is established within the UN Secretariat (Security Council Subsidiary Organs Branch).

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While the Focal Point continued to receive de-listing requests from individuals and entities listed under the sanctions regimes, and while de-listings have occurred, it is clear that the applicable procedures are less stringent. There may be two explanations for this disparity: the relatively high number of individuals and entities listed under the Al-Qaida regime and, perhaps more importantly, the fact that there is no particular link between the targeted individuals and entities under the Al-Qaida regime and a specific UN Member State. Article 31 UN Charter permits any member of the United Nations which is not a member of the Security Council to participate in the discussion of any question brought before the Council whenever the Council considers that the interests of that member are ‘specially affected’. This right does not however exist for individuals and entities. In the practice of the Council and its subsidiary organs (sanction committees) States may be accorded the right to participate in meetings on sanctions against them, their nationals and entities, whilst individuals and entities are not.

III. International Humanitarian Law: Protection of Children in Armed Conflict The protection of civilians in situations of armed conflict has been on the agenda of the Security Council for a number of years.24 2011 saw a continuation of the Council’s efforts not only to promote a greater understanding of International Humanitarian Law (IHL), but also of Council action and decisions aimed at ensuring respect for IHL. Chief among those decisions was the referral of the situation in Libya to the International Criminal Court (ICC), which received unanimous support in the Council.25 The Council also further developed a normative framework for the protection of children in armed conflict. In 2005, the Council had already authorised the establishment of a monitoring and reporting mechanism to focus on six grave abuses against children: recruiting or use of child soldiers; killing or maiming of children; rape and other grave sexual abuses of children; attacks against schools and hospitals; and denial 24 The Council’s first thematic decision on the protection of civilians in armed conflict was a Presidential Statement adopted on 12 February 1999 (UN Doc. PRST/1999/6). 25

SC Res. 1970 (2011) of 26 February 2011.

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of humanitarian access for children. It also created the Working Group of the Security Council on Children and Armed Conflict.26 An effective, and sometimes controversial, element of the reporting and monitoring mechanism is the inclusion of parties to armed conflict that commit abuses against children in the yearly reports of the Secretary-General; with SC Resolution 1882 (2009), the criteria for listing parties had been expanded to include the recruitment of children, killing and maiming and rape and other sexual abuses. This ‘list of shame’ has been an effective tool in putting pressure on parties to abide by their international obligations.27 In his 2011 report Children and Armed Conflict, the UN Secretary-General had expressed concern about the increasing trend in attacks against schools and hospitals and had encouraged the Security Council to further ensure that these facilities remain protected.28 Acting on that report, Germany, which is chairing the Working Group on Children and Armed Conflict during its tenure on the Council, launched an initiative to provide for the inclusion of parties in armed conflict that engage, in contravention of applicable international law, in attacks on schools and hospitals into the ‘list of shame’. This initiative eventually led to the adoption of SC Resolution 1998 (2011) which, apart from expanding the criteria, expressed the Council’s intention when establishing, modifying or renewing the mandate of relevant sanctions regimes, to consider including provisions pertaining to parties to armed conflict that engage in activities in violation of applicable international law relating to the rights and protection of children in armed conflict.29

26

SC Res. 1612 (2005) of 26 July 2005.

27

SC Res. 1882 of 4 August 2009. The ‘list’ consists of two annexes: Annex I is made up of situations that are on the Council’s formal agenda and Annex II are those not on the Council’s agenda. The extension of the scope of Annex II beyond situations of armed conflict to ‘other situations of concern’, recognised by SC Res. 1882 (2009) has been a source of contention. States generally do not wish to find themselves or non-State parties acting on their territory on the list in order to avoid any suggestion that an armed conflict exists within their borders and for fear of giving ‘legitimacy’ to an armed group. Hence, the reports of the Secretary-General on children and armed conflict contain disclaimers whereby “reference to a situation of concern is not a legal determination and reference to a non-state party does not affect its legal status,” see e.g. UN Doc. A/65/820 (2011), para. 5; see also Note to the Special Representative of the Secretary-General for Children and Armed Conflict concerning criteria for listing and de-listing parties in the Annexes of the Secretary-General’s report on children and armed conflict, UN Juridical Yearbook 47 (2009), 468, para. 11. 28

Children and Armed Conflict, Report of the Secretary-General, UN Doc. A/65/820 (2011).

29

SC Res. 1998 (2011) of 12 July 2011, para. 9(e).

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It should be noted that the Council was well aware that schools and hospitals may lose their protection under IHL should they be used for military purposes; hence the reference to parties in armed conflict that engage in attacks on schools and hospitals “in contravention of applicable international law,”30 and the request addressed to the Secretary-General to continue to report “on the military use of schools and hospitals in contravention of international humanitarian law.”31 At the same time, Council members left no doubt that there can be no impunity for attacks on schools and hospitals that violate international law.32 SC Resolution 1998 (2011) contains an express reference to the ‘relevant provisions’ of the Rome Statute of the ICC,33 which gives the Court explicit jurisdiction to prosecute and punish those that intentionally target schools and hospitals in armed conflict.34

IV. Admission of New Members: South Sudan and the Application of Palestine A. South Sudan

On 9 July 2011, the Republic of South Sudan declared its independence, six years after the Comprehensive Peace Agreement,35 which had brought an end to decades of civil war. The people of South Sudan, in a referendum conducted in January 2011, voted overwhelmingly in favour of independence from the Sudan. On the day of independence, the Republic of South Sudan submitted an application for admission to membership in the United Nations to the UN Secretary-General. The SecretaryGeneral immediately transmitted the application to the President of the Security 30

Ibid., para. 3.

31

Ibid., para. 4.

32

Ibid., para. 11; see also the numerous references made by Council members on impunity in the Council open debate on 12 July 2011, UN Doc. S/PV.6581 (2011). 33

SC Res. 1998 of 12 July 2011, Recital 9 Preamble.

34

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90 (Rome Statute), Art. 8 (2)(b), (e). 35

Comprehensive Peace Agreement, 9 January 2005, Republic of the Sudan – Sudan People’s Liberation Movement/Sudan People’s Liberation Army, available at: http://unmis.unmissions.org/ Portals/UNMIS/Documents/General/cpa-en.pdf (accessed on 7 March 2012). For further information see http://unmis.unmissions.org/Default.aspx?tabid=515 (accessed on 1 January 2012).

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Council (Germany) and to the General Assembly, in accordance with Rule 59 of the Provisional Rules of Procedure of the Council36 and Rule 135 of the Rules of Procedure of the General Assembly.37 On 11 July 2011, the President of the Council convened a formal meeting of the Council in which the application of the Republic of South Sudan was referred to the Committee on the Admission of New Members, a standing Committee of the Council where each member of the Council is represented.38 The Committee met the very same day, considered the application, and unanimously decided to recommend to the Council that the Republic of South Sudan be admitted for membership of the United Nations.39 Two days later, on 13 July 2011, the Council held another formal meeting and passed a resolution in which it recommended to the General Assembly that the Republic of South Sudan be admitted for membership.40 As is customary in the case of a unanimous recommendation, the Resolution41 was adopted without a vote and accompanied by a congratulatory Presidential Statement.42 Finally, on 14 July 2011, the General Assembly, again without a vote, took the decision to admit the Republic of South Sudan as the 193rd member of the United Nations.43 The admission of the Republic of South Sudan took only six days from the date of the application (9 July 2011, a Saturday) to the decision of the General Assembly (14 July 2011). The Republic of South Sudan had made it clear that it wanted to join the United Nations as soon as possible. The Republic of the Sudan had consented to the secession, and in fact was the first State to recognise its new neighbour to the south. The international community had endorsed the Comprehensive Peace Agreement of 2005 which had provided for a referendum on self-determination for the

36 Provisional Rules of Procedure of the Security Council, UN Doc. S/96/Rev.7 (1983) (SC Rules of Procedure). 37 Rules of Procedure of the General Assembly, UN Doc. A/520/Rev.17 (2008); see Note by the Secretary-General, UN Doc. A/65/900 (2011). 38

UN Doc. S/PV.6580 (2011).

39

See Report of the Committee on the Admission of New Members concerning the application of the Republic of South Sudan for admission to membership in the United Nations, UN Doc. S/2011/ 420 (2011). 40

UN Doc. S/PV.6582 (2011).

41

SC Res. 1999 of 13 July 2011.

42

UN Doc. S/PRST/2011/14 (2011).

43

GA Res. 65/308 of 14 July 2011.

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people of Southern Sudan.44 The Security Council, after the announcement of the results of the referendum, had stated that it looked forward “to welcoming an independent South Sudan as a new member of the international community after July 9.”45 The Council was therefore able to act swiftly as there was no dissent among its members in the handling of the application.

B. Palestine

While the positive response by the Security Council to the application of the Republic of South Sudan for UN membership was never really in doubt, a similar application by Palestine did result in some controversy. On 23 September 2011, shortly before his address to the General Assembly in the 2011 General Debate, President Mahmoud Abbas submitted Palestine’s application for UN membership to the Secretary-General. Although there had been some initial speculation on whether the Secretary-General would immediately forward the application to the President of the Security Council,46 a note by the Secretary-General containing the letter by President Abbas reached the Council on the very same day (23 September).47 As in the case of South Sudan, the President of the Council (Lebanon), on 28 September 2011, convened a formal meeting and, in accordance with Rule 59 SC Rules of Procedure, referred the application to the Committee on the Admission of New

44

For more on the self-determination of the Southern Sudanese people see Charles Riziki Majinge, Southern Sudan and the Struggle for Self-Determination in Contemporary Africa: Examining ist Basis Under International Law, GYIL 53 (2010), 541. 45

SC Presidential Statement, UN Doc. S/PRST/2011/3 (2011). The Council also acknowledged that “the process mandated by the [Comprehensive Peace Agreement] represents an exceptional case and does not by itself set a precedent,” para. 5. 46 It was noted that in the case of the Former Yugoslav Republic of Macedonia in 1993, the Secretary-General only circulated the application after requesting the President of the Security Council to hold informal consultations on the ‘receivability’ of the application, see UN Doc. S/25147 (1993), 1, which led to a six-month delay. In practice, every application is reviewed by the Office of Legal Affairs before it is transmitted by the Secretary-General to the President of the Security Council and to the General Assembly. 47 UN Doc. S/2011/592 (2011); attached to the note were actually two letters, one containing the application, and a ‘further letter’, both signed by President Abbas.

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Members.48 The Committee held three formal and five informal meetings (four at the expert level) in order to consider the application. On 11 November 2011, the Committee approved its report to the Security Council. The report stated that “the Committee was unable to make a unanimous recommendation to the Security Council.”49 The members of the Committee considered whether Palestine met the criteria for admission to membership contained in Article 4 UN Charter: whether the applicant was in fact a “State,” was a “peace-loving state,” and was willing and able to carry out the obligations contained in the Charter. Reference was made to the Advisory Opinion of the ICJ on the Admission of a State to the United Nations,50 in particular in support of the view that the criteria set out in Article 4 UN Charter were the only factors that could be taken into consideration in the Committee’s deliberations. The view was also expressed that the Council should be mindful of the broader political context, in particular the need to not harm the prospects of the resumption of peace talks between the parties. The proponents of this view pointed out that the ICJ had concluded that Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article […]. [N]o relevant political factor – that is to say, none connected with the conditions of admission – is excluded.51

On the criteria of statehood, the view was expressed that Palestine fulfilled the requirements of a permanent population and a defined territory; it was stressed that the lack of precisely settled borders was not an obstacle to statehood, as exemplified by the case of Israel’s admission in 1949. As the report shows, different views were expressed as to whether the Palestinian Authority could be considered to have effective governmental control over its territory in view of the fact that Hamas was the de facto authority in the Gaza Strip.52

48

UN Doc. S/PV.6624 (2011).

49

Report of the Committee on the Admission of New Members concerning the application of Palestine for admission to membership in the United Nations, UN Doc. S/2011/705 (2011), para. 21. 50

ICJ, Admission of a State to the United Nations (note 1).

51

Ibid., 57, 63.

52

Committee on the Admission of New Members (note 49), paras. 11 et seq.

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Questions were raised as to whether Palestine fulfilled the requirement of being a “peace-loving state,” since Hamas refused to renounce terrorism and violence, and had the stated aim of destroying Israel.53 The view was expressed, on the other hand, that Hamas’ acts were not attributable to Palestine’s recognised authority and that Palestine’s commitment to the achievement of a just, lasting and comprehensive resolution of the Israeli-Palestinian conflict could not be questioned.54 With regard to the requirement that an applicant accept the obligations of the Charter and be able and willing to carry out those obligations, it was said that Palestine had made a solemn declaration to that effect in its application for membership, and that this was sufficient to meet that criterion.55 However, this view was again not shared by all Council members; some members argued that the Charter required more than a verbal commitment and that Hamas had not accepted the obligations to settle disputes peacefully and to refrain from the threat or the use of force.56 At the time of writing, the Security Council had not taken any decision on the Palestinian application. No member of the Council had tabled a resolution recommending Palestine for admission to the United Nations. Such a resolution, in order to be adopted, would need the concurrent vote of at least nine members of the Council, and would be subject to a veto by the permanent members. In the meantime, and as there is no rule that requires the Council to act by a certain date,57 Palestine may seek to be given the status of Observer State, which would fall under the sole prerogative of the General Assembly.58

53

Ibid., para. 15.

54

Ibid., paras. 15 et seq.

55

Ibid., para. 17.

56

Ibid., paras. 17 et seq.

57

It is generally accepted that the timelines contained in Rules 59 and 60 SC Rules of Procedure are only intended to give the General Assembly sufficient time to consider the Council’s recommendation and do not require the Security Council to act within a certain time frame; these rules were also written at a time when the General Assembly only sat for a limited period each year. 58

Currently, Palestine has a sui generis observer status, higher than all other observers, but still less than a State, see GA Res. 52/250 of 13 July 1998, Annex.

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V. Operationalising the Doctrine of the Responsibility to Protect During the first six months of 2011 the Security Council was looking mostly to countries in North Africa and the Middle East, none of them ‘traditional’ focuses for the Security Council. The Council had to live up to its responsibility for maintaining international peace and security. It did not always meet expectations: in the case of Syria, for instance, a double veto meant that the Security Council was not able to send the necessary strong signal to the leadership in Damascus. Nevertheless, the developments in the Arab world led to a remarkable operationalising of the doctrine of the ‘Responsibility to Protect’ in 2011. The UN General Assembly first recognised the concept of the Responsibility to Protect at the World Summit in 2005. Pursuant to this doctrine, each individual State has the obligation to protect its populations from the most egregious crimes against humankind, namely genocide, ethnic cleansing, war crimes and crimes against humanity. This comprises the ‘first pillar’ of the Responsibility to Protect.59 The international community, acting through the United Nations, has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help States in this endeavour (the ‘second pillar’).60 Should national authorities ‘manifestly’ fail to protect their populations, States declared themselves prepared to take collective action through the Security Council, in accordance with the UN Charter. In the event that peaceful means do not suffice, such collective action would include enforcement measures under Chapter VII UN Charter (the ‘third pillar’).61 In spite of this ‘historic’62 breakthrough in 2005, the Responsibility to Protect received little attention in the years that followed. The doctrine was reaffirmed by the Security Council in just four basic resolutions on the protection of civilians in armed conflict, none of which related to any specific country.63 59

World Summit Outcome Document, GA Res. 60/1 of 24 October 2005, Annex, para. 138.

60

Ibid., para. 139

61

Ibid.

62

Described as such in particular in the UN context, e.g. by former UN Secretary-General Kofi Annan in a speech in Portugal on 11 October 2005, available at: www.unmultimedia.org/radio/english/ detail/43138.html (accessed on 18 November 2011). 63

SC Res. 1674 of 28 April 2006, 1706 of 31 August 2006, 1755 of 30 April 2007, and 1894 of 11 November 2009.

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A. Libya

In 2011, the Security Council itself recalled and implemented the concept of Responsibility to Protect in a way which has been heavily discussed. In Resolutions 1970 and 1973 on the Situation in Libya, the Security Council reminded the Libyan Government of its duty to protect its civilian population: Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians […].64

Whereas SC Resolution 1970 imposed sanctions short of military action (arms embargo, travel ban, asset freeze), Resolution 1973 authorised military intervention. The two resolutions were described as the “first fully-fledged ‘R2P resolutions’” by the UN Under-Secretary-General for Legal Affairs.65 They also sparked off considerable debate on whether they, and Resolution 1973 in particular, constituted a further development66 of international law or a violation67 thereof. The authorisation contained in Resolution 1973 of enforcement measures for the protection of the civilian population in an internal conflict constitutes a logical further development in the interpretation of Articles 39 et seq. UN Charter by the Security Council. 64 SC Res. 1973 of 17 March 2011, Recital 4 Preamble; cf. also SC Res. 1970 of 26 February 2011, Recital 9 Preamble. 65

Patricia O’Brien, Under-Secretary-General for Legal Affairs, in her address of 24 October 2011 to the Legal Advisers of the Ministries of Foreign Affairs during International Law Week, 5, available at: http://untreaty.un.org/ola/media/info_from_lc/POB%20to%20Legal%20Advisers_Oct%202011.pdf (accessed on 21 November 2011); cf. Tom Koenigs, Verantwortungsvolle Einmischung, Frankfurter Rundschau of 10 November 2011, available at: http://www.fr-online.de/meinung/gastbeitrag-verantwortungs volle-einmischung,1472602,11114966.html (accessed on 1 January 2011); Andreas Ross, Nicht einmal China sperrte sich: Der UN-Sicherheitsrat erinnert Libyen an die ‘Schutzverantwortung’, Frankfurter Allgemeine Zeitung of 24 February 2011, available at: http://www.faz.net/frankfurter-allgemeinezeitung/politik/nicht-einmal-china-sperrte-sich-1588890.html (accessed on 1 January 2011). 66 Christian Tomuschat, Wenn Gaddafi mit blutiger Rache droht, Frankfurter Allgemeine Zeitung of 23 March 2011, available at: http://www.faz.net/aktuell/politik/arabische-welt/militaerinterventionin-libyen-wenn-gaddafi-mit-blutiger-rache-droht-1610025.html (accessed on 1 January 2011); Alex J. Bellamy/Paul D. Williams, The new politics of protection? Côte d’Ivoire, Libya and the responsibility to protect, International Affairs 87 (2011), 825. 67

Reinhard Merkel, Völkerrecht contra Bürgerkrieg – Der libysche Aufstand gegen Gaddafi ist illegitim, Frankfurter Allgemeine Zeitung of 22 March 2011, available at: http://www.faz.net/aktuell/ feuilleton/voelkerrecht-contra-buergerkrieg-die-militaerintervention-gegen-gaddafi-ist-illegitim1613317.html (accessed on 1 January 2011).

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Pursuant to the system of collective security, as established in the UN Charter, the Security Council is responsible for maintaining international peace and security, and to that end may take the measures provided for in Articles 40 et seq. UN Charter. The expression “international peace and security” in Article 39 was originally interpreted as referring solely to ‘classical’ inter-State conflicts;68 the Security Council had no remit over internal affairs (including the protection of civilian populations from their governments). Since the early 1990s, the UN Security Council has broadened its interpretation of “international peace and security” by deciding that gross violations of human rights may also constitute a threat to international peace and security.69 This development has been supported by the UN Member States and is underpinned by the emergence of modern international human rights law.70 Notwithstanding this, before any enforcement action is taken in a State, that State’s consent should be obtained prior to the adoption of all previous Security Council resolutions authorising enforcement measures to protect civilians.71 By contrast, the consent of the Libyan government was not obtained prior to the adoption of Resolution 1973. The Security Council nevertheless acted in accordance with international human rights law as it now stands. When the Security Council takes action pursuant to Articles 39 and 42 UN Charter as the ‘guardian of world peace’ – and, according to the modern interpretation, as the protector of civilians from gross human rights violations – the basic object and purpose of the UN Charter dictates that the consent of the affected State is not required.

B. Consequences and Outlook for the Future

The scope of the doctrine of the Responsibility to Protect has not been altered by SC Resolution 1973. The idea that the primary responsibility for the protection of the civilian population is incumbent on the nation-State, and that the international 68

Cf. Tomuschat (note 66).

69

SC Res. 794 of 3 December 1992 on the Situation in Somalia, SC Res. 819 of 16 April 1993 on the Situation in Bosnia and Herzegovina; cf. Simon Chesterman, Leading from Behind: The Responsibility to Protect, the Obama Doctrine and Humanitarian Intervention After Libya, Ethics and International Affairs 25 (2011), 27, 28; Bellamy/Williams (note 66), 828. 70

Tomuschat (note 66).

71

Bellamy/Willams (note 66), 828.

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community may only intervene when the nation-State has proven unable to protect its population, corresponds to what was decided in 2005 in the World Summit Outcome.72 In particular, SC Resolutions 1970 and 1973 cannot be interpreted as imposing a duty on the part of the international community or the Security Council to act in the event of egregious violations of human rights.73 It is notable in this context that the Security Council only referred directly to the first pillar of the Responsibility to Protect, i.e. to the primary responsibility of the Libyan authorities to protect the Libyan population. Does the reference to the Responsibility to Protect in SC Resolutions 1970 and 1973 constitute a step towards establishing a rule of customary international law? Hence is this an indication that States generally consider the responsibility of the international community (‘second pillar’) as a binding legal obligation? The answer would appear to be ‘no’, since neither the Security Council nor its individual Member States justified their action in Libya with their own – albeit secondary – responsibility as members of the international community to prevent the occurrence of gross and systematic human rights violations.74 Nevertheless, the concept of Responsibility to Protect did increase the political pressure to do something in the light of the events in Libya.75 When addressing the Security Council, the French Foreign Minister thus referred to the “responsibility on our shoulders.”76 US President Obama likewise talked of a “responsibility to act when our interests and values are at stake”77 in his speech on 28 March 2011 on the situa72

World Summit Outcome (note 59), in particular para. 139.

73

James Pattison, Introduction, Ethics and International Affairs 25 (2011), 1, 3.

74

Cf. the text of SC Res. 1973 and the Meeting Records of the Security Council on Res. 1970 and 1973, UN Doc. S/PV.6491 (Res. 1970) and UN Doc. S/PV.6498 (Res. 1973). 75

Chesterman (note 69), 30–31; Pattison (note 73).

76

UN Doc. S/PV.6498 (2011), 3: “We do not have much time left. It is a matter of days, perhaps even hours. Every hour and day that goes by means a further clampdown and repression for the freedomloving civilian population, in particular the people of Benghazi. Every hour and day that goes by increases the burden of responsibility on our shoulders”. 77

Available at: http://www.whitehouse.gov/the-press-office/2011/03/28/remarks-president-addressnation-libya (accessed on 18 November 2011): “For generations, the United States of America has played a unique role as an anchor of global security and as an advocate for human freedom. Mindful of the risks and costs of military action, we are naturally reluctant to use force to solve the world’s many challenges. But when our interests and values are at stake, we have a responsibility to act. That’s what happened in Libya over the course of these last six weeks”.

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tion in Libya. The leader of the British opposition, Ed Miliband, also argued in the debate in the House of Commons on Resolution 1973 that doing nothing “would be a dereliction of our duty” in view of the atrocities committed in Libya.78 Even if these statements have remained isolated and do not suffice to prove that the international community considers it has a duty to prevent gross and systematic violations of human rights, they do show that the idea of Responsibility to Protect provides a framework for the discussion of ‘if’ and ‘how’ to act, and provides an argument of no small value to those who advocate intervention. At the same time, the intervention in Libya has prompted some States, including members of the Security Council, to question certain aspects of the Responsibility to Protect. According to Brazil “there is a growing perception that the concept of ‘responsibility to protect’ might be misused for purposes other than protecting civilians, such as regime change.”79 It is likely that the Council will revert to this issue in 2012.

78 Hansard Parliamentary Debates, House of Commons, 21 March 2011, col. 716, available at: http:// www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110321/debtext/110321-0001.htm# 1103219000001 (accessed on 1 January 2011). 79

Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General, UN Doc. S/2011/701 (2011). The sentiment expressed by Brazil is shared by the other IBSA-countries (India, Brazil, South Africa); see e.g. the SC open debate on the protection of civilians in armed conflict of 9 November 2011, UN Doc. S/PV.6650, 17 (India), 21 (South Africa).

Climate Change and International Peace and Security: The Open Debate in the United Nations Security Council on 20 July 2011 PETER WITTIG(

I. Introduction During its presidency of the United Nations Security Council in July 2011, Germany organised an open debate in the Council on the security implications of climate change, the second debate on this topic in the Council’s history. For the first time ever, the Council agreed – after long and difficult negotiations – on a Presidential Statement,1 in which it “expresses its concern, that possible adverse effects of climate change may, in the long run, aggravate certain existing threats to international peace and security.”2 In other words: the Security Council recognised unanimously that the global challenge of climate change has the potential to negatively affect or threaten international peace and security. What was the reasoning behind Germany’s initiative? Why are we convinced that the security implications of climate change must also be dealt with in the Security Council? How was the debate in July prepared and how did it evolve? How did the opponents to this debate argue? And finally: what perspectives are opened for possible future discussions by this debate?

(

Permanent Representative of Germany to the United Nations, New York. The author would like to thank Counsellor Dr. Andreas Pfaffernoschke for his most valuable support and contributions to this article. His expertise and commitment were essential for the successful outcome of the negotiations. 1

Statement by the President of the Security Council, UN Doc. S/PRST/2011/15 (2011).

2

Ibid., para. 6.

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II. Climate Change – A Key Challenge for Mankind and a Case for the United Nations Security Council A. Background

This article cannot go into the details of the scientific discussion on climate change. But there can be no doubt that climate change and its effects on life on our planet are key challenges for the international community. The impacts of climate change are already tangible and will become increasingly visible in the years to come. As the demand for energy escalates, still relying mainly on fossil fuels which further drive climate change, the depletion of fertile soils and freshwater as a consequence of climate change becomes more and more obvious. They bear the potential of driving social tensions, political unrest and even violent conflict. The United Nations Framework Convention on Climate Change (UNFCCC)3 is mandated to deal with steering international negotiations on climate change – the last Conference of the Parties took place in Durban, South Africa from 28 November to 9 December 2011 and has agreed “to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the [UNFCCC] applicable to all Parties.”4 This having been said, other UN organs also have a role to play in dealing with climate change. In June 2009 the United Nations General Assembly invited “the relevant organs of the United Nations, as appropriate and within their respective mandates, to intensify their efforts in considering and addressing climate change, including its possible security implications”5 and requested the Secretary-General to submit a comprehensive report on the possible security implications of climate change.6 Drawing upon the best scientific knowledge available at the time and insights provided by Member States and international organisations, the

3

United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1771, 107.

4

Decision 1/CP.17, Establishment of an Ad-Hoc Working Group on the Durban Platform for Enhanced Action, available at: http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf (accessed on 22 March 2012), para. 2. 5

GA Res. 63/281 of 3 June 2009, para. 1.

6

Ibid., para. 2.

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Secretary-General’s report of 11 September 20097 clearly outlined the link between climate change as a risk multiplier and security – including in armed conflict.

B. The Security Council Debate in 2007: The First Step in Bringing Climate Change to the Attention of the Council

The Security Council debated the security implications of climate change for the first time ever in April 2007 under the presidency of the United Kingdom.8 Due to substantial objections from some Member States and groups of countries9 it was neither possible to agree on discussing the topic under the agenda item “maintenance of international peace and security”10 nor to reach consensus on a negotiated outcome document. A group of countries, mainly the Non-Aligned Movement (NAM), objected to the Council attempting to deal with the matter by arguing that climate change should be dealt with in the General Assembly (GA) and the UNFCCC. The Movement also objected to what they called ‘encroachment’ into the mandate of the GA by the Security Council. Others11 denied any mandate for the Council to discuss the issue, stating that climate change did not pose a direct threat to international peace and security. This pattern of arguments persisted and came back again in 2011, increasing the challenge presented to Germany to organise a new open debate and – even more – to get agreement on a negotiated outcome document.

7 Climate change and its possible security implications, Report of the Secretary-General, UN Doc. A/64/350 (2009). 8

Security Council 5663rd meeting of 17 April 2007, UN Doc. S/PV.5663.

9

See e.g. on behalf of the Non-Aligned Movement (2007) the Letter dated 12 April 2007 from the Chargé d’affaires a.i. of the Permanent Mission of Cuba to the United Nations addressed to the President of the Security Council, UN Doc. S/2007/203 (2007) and on behalf of the group of G77 and China the Letter dated 16 April 2007 from the Permanent Representative of Pakistan to the United Nations addressed to the President of the Security Council, UN Doc. S/2007/211 (2007). 10

The issue was discussed under the agenda item Letter dated 5 April 2007 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, UN Doc. S/2007/186 (2007). 11

Russian Federation, Venezuela, India, South Africa.

630 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011 C. The Decision to Hold a New Debate in 2011

Since this first debate in 2007, the international political and academic discussion on the security implications of climate change had evolved significantly until early 2011, and the awareness for the potential security implications of climate change had increased. The Secretary-General of the United Nations in his report to the General Assembly in 2009 had characterised sea-level rise as “the ultimate security threat”12 for some small island States, which could possibly disappear over the next 30 years. In 2010 the Pacific Small Island Developing States (PSIDS)13 explicitly requested that the Security Council place the security implications of climate change on the Council’s agenda.14 The scientific knowledge on climate change has improved and research on the impact of sea-level rise has evolved. Rising sea-levels raise important questions not only regarding the existence of UN Member States. Receding coastlines could furthermore incite disputes over maritime territories and access to exclusive economic zones. This is not limited to small island developing States, but impacts all island nations and countries with low-lying coastal areas, thus affecting a lot of UN Member States. Current legal and political arrangements as well as the preparedness of the UN system to deal with these situations may prove insufficient to handle them, making climate-induced territorial changes a threat to international peace and security. Climate change is also likely to put pressure on food production globally, with large parts of Africa and Asia suffering particularly negative impacts. The SecretaryGeneral highlighted in his 2009 report to the General Assembly, that “the serious impacts of the recent global food price crisis on food security and malnutrition in vulnerable countries is suggestive of what might occur, possibly on a much larger scale, in the event of future food shortages exacerbated by climate change,”15 including “social protests and unrest in a number of countries around the world.”16 Thus, 12

UN Doc. A/64/350 (note 7), para. 71.

13

Cook Islands, Micronesia, Fiji, Kiribati, Nauru, Palau, Papua New Guinea, Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu. 14 Letter of the Permanent Representative of Nauru on behalf of PSIDS to the Permanent Representative of France, 20 May 2010. 15

UN Doc. A/64/350 (note 7), para. 32.

16

Ibid.

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climate change-induced food insecurity and related developmental impacts make countries more fragile and vulnerable to conflict risks, and may create a threat to international peace and security. Germany is convinced that the Security Council’s mandate goes beyond the dayto-day management of acute crises. At a time where preventive diplomacy becomes more and more important, the Council has to take into account roots and causes of conflict, as foreseen in Security Council Resolution 1625.17 Germany is a globally recognised leading country in fighting climate change, promoting green economy and renewable energy. Our long-standing and generally recognised commitment in this regard has generated high expectations on the part of Small Island Developing States and other proponents of the debate. Who if not Germany has the moral and political authority to bring this issue successfully to the Council? Against this background and after thorough and in-depth consultations with the members of the Security Council, in early 2011 Germany decided to bring the security implications of climate change again to the attention of the Security Council during our presidency of the Council in July 2011, four years after the first open debate under the British presidency. We were deeply convinced that the Security Council of the United Nations, as the body which has the primary responsibility for the maintenance of international peace and security conferred to it in Chapter V of the Charter of the United Nations,18 has an essential responsibility to address the implications of a changing climate on peace and security. Our objective was to organise an open debate, allowing for the participation of UN non-Security Council Member States in accordance with rule 37 of the provisional rules of procedure of the Security Council and to negotiate a Presidential Statement, a consensus document agreed among all fifteen members of the Security Council and read out by the President of the Council on behalf of the Council.

17

SC Res. 1625 of 14 September 2005.

18

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

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III. The Open Debate on 20 July 2011 A. Preparing for the Debate

In order to set the scene for an informed open debate, Germany and Portugal, which was also following the issue closely, in cooperation with Adelphi Research Berlin, organised a preparatory event in the German Permanent Mission in New York on 20 May 2011. There, 130 high-ranking diplomats and scientists discussed security implications of climate change with a special focus on sea-level rise and food security as well as the relevance of the topic for the Security Council. A first important step towards the debate on 20 July was the formal adoption of Germany’s Security Council presidency’s programme of work on 5 July 2011; all members of the Security Council agreed on an open debate on the subject “Maintenance of international peace and security: the impact of climate change” to be held on 20 July. Contrary to what happened in 2007, no member of the Council openly challenged the explicit link between the impact of climate change and the maintenance of international peace and security – a clear indication that the general acceptance of the relevance of the impacts that climate change might have on international peace and security has gained momentum. The same day, I informed the SecretaryGeneral of the United Nations in writing that the Security Council was scheduled to hold this debate and transmitted a concept paper for further distribution.19 In that paper, we reflected the concerns many Member States of the UN continued to have with this issue being dealt with in the Council by stating that “the debate will focus exclusively on the potential security implications of climate change, recognizing the important role of other United Nations bodies in dealing with other aspects of climate change.”20 We made absolutely clear that our debate does not intend to rebalance the mandates given to different UN bodies on the issue of climate change and to promote any kind of ‘encroachment’. Despite this achievement and the clear statement that the debate does not intend to infringe on the authority of other UN bodies, well known patterns of traditional

19 Letter dated 1 July 2011 from the Permanent Representative of Germany to the United Nations addressed to the Secretary-General, UN Doc. S/2011/408 (2011). 20

Ibid., para. 5.

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thinking reappeared. A few days before the debate the Permanent Representative of Egypt to the United Nations, on behalf of the NAM, expressed to me in a letter the deep concern of the Movement regarding the continued and increasing encroachment by the Security Council on the functions and powers of the General Assembly, the Economic and Social Council and other organs in addressing issues that traditionally fall within the competence of the latter organs.21

The NAM continued to look at the impact of climate change as being primarily an issue of sustainable development. The letter further stressed “that the decision to hold this debate does not create a precedent and should not result in any form of outcome that undermines the authority or mandate of other relevant bodies, processes and instruments that already address climate change.”22

B. Main Elements of the Open Debate

The one-day debate on 20 July,23 which I chaired as President of the Council, was opened by the Secretary-General of the United Nations, a long-standing and firm supporter of our idea, who has consistently declared the fight against climate change and the leading role of the United Nations in developing a vision for a more sustainable world as one of his priorities. He characterised this debate in the Council as being not only appropriate, but essential.24 In accordance with rule 39 of the Council’s provisional rules of procedure Germany had invited Mr. Achim Steiner, Executive Director of the United Nations Environment Programme, to give a briefing to the Council on the current status of climate science. After his briefing, the members of the Council made their statements on the matter, before – in accordance with rule 37 of the Council’s provisional rules of procedure – UN non-Security Council Member States were invited to participate in the discussion. In addition to the fifteen members of the

21 Letter dated 14 July 2011 from the Permanent Representative of Egypt to the United Nations addressed to the President of the Security Council, UN Doc. S/2011/427 (2011), 1. 22

Ibid., 2.

23

For the complete protocol of the debate see Security Council 6587th meeting of 20 July 2011, UN Doc. S/PV.6587 (2011). 24

Ibid., 2.

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Council, 47 Member States of the UN25 (plus the European Union as observer) – an extraordinarily high number – spoke on the subject, confirming the high importance attached to the issue by UN Member States. Almost all speakers recognised that climate change was one of the key challenges of our times, and reiterated their commitments to contributing to effective mitigation and adaptation measures to fight climate change. While there was wide-spread recognition that a changing climate has security implications, Member States were divided on the mandate of the Council to deal with the matter. Moreover, the divisions ran neither clearly between developed and developing countries, nor between north and south, nor even between the permanent and the non-permanent members of the Council.26 All representatives from developed countries, as well as some from African27 and Latin American28 countries and all the Pacific Small Island Developing States supported our initiative. The President of the Republic of Nauru, Mr. Marcus Stephen, speaking on behalf of PSIDS, even compared the threat posed to international peace and security by climate change with the threat posed by nuclear proliferation and terrorism, carrying the potential to destabilise governments and regions. He asked for the appointment of a Special Representative of the Council on climate and security – a request that could not be agreed upon by all members of the Council. All speakers of the PSIDS group referred to the obvious security implications of climate change, the mandate of the Council for preventive diplomacy and encouraged the Council to deal further with the matter. In line with the views expressed by Egypt on behalf of the NAM many developing countries emphasised that the UNFCCC is the only legitimate forum to discuss the consequences of climate change in a comprehensive manner. They reiterated their position that coping with the impact of climate change was mainly a problem of sustainable development as opposed to security, that climate change is mainly caused 25 Argentina, Australia, Bangladesh, Barbados, Belgium, Bolivia, Canada, Chile, Costa Rica, Cuba, Denmark, Ecuador, Egypt, El Salvador, Fiji, Finland, Ghana, Honduras, Hungary, Iceland, Ireland, Iran, Israel, Italy, Japan, Kazakhstan, Kenya, Kyrgyzstan, Kuwait, Luxemburg, Mexico, Nauru, New Zealand, Palau, Papua New Guinea, Pakistan, Peru, Philippines, Poland, Korea, Singapore, Slovenia, Spain, Sudan, Turkey, Tanzania, Venezuela. 26

The following Council members supported Germany’s initiative: Colombia, France, Gabon, Lebanon, Nigeria, Portugal, United Kingdom, United States. 27

The Security Council members Gabon and Nigeria as well as the non-members Kenya and Ghana.

28

Colombia, Mexico.

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by developed countries, and that the consequences of climate change, including its security implications, are therefore the responsibility of developed countries according to the “principle of common, but differentiated responsibilities.”29 The Permanent Representative of the United States, whose position had significantly evolved since the debate in 2007, strongly supported our initiative and stated that “the Council has an essential responsibility to address the clear-cut peace and security implications of a changing climate.”30 The representative of the Russian Federation however, while recognising the Council’s prerogative as the body that has primary responsibility for the maintenance of international peace and security, challenged the relevance of the debate by claiming that there were no real security impacts linked to climate change. With this, Russia underlined its long-standing position, maintaining that the mandate of the Council should be limited to dealing with ‘hard core-security issues’ and acute crises. The discussion revealed some progress in comparison to the 2007 debate: there was a broad consensus that climate change clearly had important implications for international peace and security, and a growing understanding on the role of the Council.

IV. The Negotiations on the Outcome Document These diverging views were also reflected in the very difficult negotiations on the Presidential Statement (PRST), which Germany undertook with the members of the Council prior to the debate and which was not successfully concluded until the afternoon of 20 July, during the final stages of the debate. In our draft PRST, which we had circulated among the members of the Council two weeks before the open debate, we had made explicit reference to the security implications of a climate change-induced rising sea-level and of food insecurity. We also outlined the implications of climate change for Security Council mandated peacekeeping operations, and proposed to request the Secretary-General of the United

29

Statement by Ambassador Arguello, Permanent Representative of Argentina, on behalf of the G77, UN Doc. S/PV.6587 (note 23), 26 et seq. 30

UN Doc. S/PV.6587 (note 23), 7.

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Nations to report to the Security Council on the developments related to security implications of climate change on a regular biennial basis. The aims were: – To achieve general recognition from the Council that climate change might have implications on international peace and security and – To keep the issue on the Council’s agenda in the future by establishing a reporting mechanism. When the negotiations on the PRST chaired by Germany started a number of days before the open debate on the basis of this draft, two permanent members of the Council categorically opposed any written outcome and – while being physically present – did not take part in the negotiations. Two important Member States from Africa and Asia took a similar position, arguing that there was no need for negotiations as long as there was no consensus for a negotiated document. After eight rounds of negotiations in which we managed to get all the non-permanent members engaged and found compromise on almost all issues, there was still some opposition against any written outcome on the part of two permanent members. Only in the morning of the debate – after high-level contacts with the respective capitals – these delegations showed some flexibility, thus paving the way for the final negotiations nearing the end of the open debate, which were successfully concluded in the afternoon. In the finally agreed PRST, which was considerably shorter in comparison to our first draft, the Security Council “underlines General Assembly resolution 63/281 of June 3, 2009, which reaffirms that the United Nations Framework Convention on Climate Change is the key instrument for addressing climate change,”31 “expresses its concern, that possible adverse effects of climate change may, in the long run, aggravate certain existing threats to international peace and security”32 and “that possible security implications of loss of territory of some States caused by sea-level-rise may arise, in particular in small low-lying island States.”33 The Council further noted that in matters relating to the maintenance of international peace and security under its consideration, conflict analysis and contextual information on, inter alia, possible security implications of climate change is important, when such issues are drivers of conflict, 31

UN Doc. S/PRST/2011/15 (note 1), para. 3.

32

Ibid., para. 6.

33

Ibid., para. 7.

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represent a challenge to the implementation of Council mandates or endanger the process of consolidation of peace34

and requested the Secretary-General “to ensure that his reporting to the Council contains such contextual information.”35 With that Presidential Statement, we had reached our two main objectives: the Security Council had recognised that climate change might have implications on international peace and security, and we had established a reporting mechanism. Although we did not manage to agree on a stand-alone report to be submitted to the Council every two years, we agreed on integrating contextual information on the possible security implications of climate change in each and every report to be submitted by the Secretary-General to the Council. That represented a great step forward, especially considering the opposition we had originally encountered.

V. Conclusion Agreeing on a Presidential Statement as a result of the open debate on 20 July was major progress. For the first time in the history of the Security Council the relevance of the security implications of climate change for the work of the Council was recognised by all members of the Council in a negotiated outcome document agreed by consensus. This outcome does not redefine the role of the UN in fighting climate change, nor does it open a new track within the UN on negotiations to curb greenhouse gas emissions. This is not the mandate of the Council. But by having this debate and by agreeing on the Presidential Statement, the Council continued to recognise that its mandate is not restricted to dealing with the classical direct (political or military) threats to international peace and security, but that it also has to keep pace with the emerging threats of the 21st century. Climate change is definitely one of the biggest, if not the biggest new emerging threat. Earlier in 2011, the Council had already discussed the link between development and secu-

34

Ibid., para. 8.

35

Ibid.

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rity36 and addressed the HIV/Aids pandemic as an emerging threat to international peace and security.37 Our debate in July was a further important step in that direction. It further underlined Germany’s leading role in the global fight against climate change and strengthened our profile as a country which is committed not only to bringing emerging issues to the Security Council, but also to act as the advocate of those countries whose concerns – although very relevant for the international community – are often disregarded or ignored. And it proved: we can deliver. The expectations many of the countries most affected by climate change had laid on us were fulfilled. At the same time, this outcome of the German presidency of the Security Council in July 2011 serves as a strong incentive for our future commitment to climate security at the United Nations and beyond.

36 Under the Security Council presidency of Brazil in February 2011, see Statement by the President of the Security Council, UN Doc. S/PRST/2011/4 (2011). 37

Under the Security Council presidency of Gabon in June 2011; no adopted outcome.

The Federal Constitutional Court’s Deference to and Boost for Parliament in Euro Crisis Management THOMAS GIEGERICH(

Introduction: Pursuant to the judgment of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) on the constitutionality of the Treaty of Lisbon,1 the Court reserves for itself two kinds of review powers over European Union (EU) acts: (1) ultra vires review, i.e. scrutiny by the FCC as to whether acts of the EU institutions and bodies remain within the powers conferred on them by the Treaties2 in the sense of Article 5 TEU; (2) ‘identity’ review, i.e. scrutiny by the FCC as to whether acts of the EU institutions and bodies infringe the ‘inviolable core content of the constitutional identity’ of the German constitution (Basic Law – BL) (Grundgesetz)3 pursuant to Article 23 (1) cl. 3 in conjunction with Article 79 (3) BL. This inviolable core content includes those fundamental constitutional principles whose purposes may not be affected even by constitutional amendments; primarily human dignity, federalism, the rule of law, the social State principle and democracy.

( Professor of Public Law, International Law and European Union Law at the University of Kiel and Co-Director of the Walther-Schücking-Institute for International Law. 1 FCC, BVerfGE 123, 267 (English translation available at: http://www.bundesverfassungsgericht. de/entscheidungen/es20090630_2bve000208en.html, accessed on 20 September 2011). For a critique see Thomas Giegerich, The Federal Constitutional Court’s Judgment on the Treaty of Lisbon – The Last Word (German) Wisdom Ever Has to Say on a United Europe?, German Yearbook of International Law (GYIL) 52 (2009), 9, 25 et seq. 2 The term ‘Treaties’ comprises the Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13 (Consolidated Version) (TEU) and the Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (Consolidated Version) (TFEU), see Art. 1 (3) cl. 1 TEU. 3 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944. An English translation of the BL is available at https://www.btg-bestellservice.de/pdf/80201000.pdf (accessed on 8 March 2012).

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In view of the political objectives of European cooperation and integration since 1945, it is unsurprising that the aforementioned fundamental principles of the Basic Law are mirrored by the EU values laid down in Article 2 TEU and that respect for them and commitment to their promotion is an essential condition of EU membership (Article 49 TEU). It is therefore all the more surprising that the highest court of a Member State seems to believe that the EU poses a real threat to its own core principles. It was in any event erroneous for the FCC to invoke Article 4 (2) TEU to justify its own identity review powers, because the proper balance between the requirements of an “ever closer union among the peoples of Europe”4 and consideration for Member States’ constitutional identity in the sense of Article 4 (2) TEU can only be struck by the Court of Justice of the EU ECJ on the EU level. There is no doubt that the exercise by a national court of either ultra vires or ‘identity’ review over EU law in force or binding EU acts is incompatible with the Treaties:5 these are based on the concepts of the primacy of EU law over national (constitutional) law6 and the exclusive right of the ECJ to decide on the validity of EU acts.7 Eurosceptics had long waited for an ‘ideal’ case to come up in which the FCC would ultimately use its reserved powers, strike down an EU measure and draw a line under European integration. The first opportunity arose in the summer of 2010 in the Honeywell Case, when the FCC was presented with the question whether a German court was constitutionally prohibited from following a judgment of the ECJ that was allegedly ultra vires. Eurosceptics were, however, disappointed by a 7:1 majority of the FCC which rejected Honeywell’s constitutional complaint.8 This was not surprising, for the circumstances of the Honeywell Case indeed hardly made it an ideal instance for confronting the ECJ.9 4

See Art. 1 (2) TEU and Recital 1 Preamble TFEU.

5

In the process of Member State ratification of amendments to the Treaties (Art. 48 TEU), however, a national court is not prevented by EU law from exercising ‘identity’ (or even general constitutional) review of the proposed amendments and in case of negative outcome, from prohibiting the authorities of this Member State from ratifying them. 6 See the Declaration (No. 17) concerning primacy in the Final Act of the Intergovernmental Conference on the Treaty of Lisbon of 23 July 2007, OJ 2007 C 306, 256. 7

ECJ, Case 314/85, Foto-Frost, 1987 ECR 4199.

8

FCC, BVerfGE 126, 286. Press release of 26 August 2010 in English available at: http://www. bundesverfassungsgericht.de/pressemitteilungen/bvg10-069en.html ( accessed on 7 October 2011). 9 See Thomas Giegerich, The Federal Constitutional Court’s Non-Sustainable Role as Europe’s Ultimate Arbiter: From Age Discrimination to the Saving of the Euro, GYIL 53 (2010), 867, 879 et seq.

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Factual Background: On the day the Honeywell decision was handed down, three other cases were already pending that seemed to be ‘ideal’ for prompting the FCC to exercise its ‘identity’ review power.10 They concerned the constitutionality of various financial measures to save the euro from the sovereign debt crisis of several Member States that were unpopular in Germany:11 first the bail-out of almost bankrupt Greece and secondly a more comprehensive and costly package to stabilise the euro also in view of the financial problems of other euro area Member States such as Ireland and Portugal. This second package, consisting of a European Financial Stabilisation Mechanism (EFSM) introduced by EU Regulation12 and funded by the EU and a European Financial Stability Facility (EFSF), a private company based on an intergovernmental (political) agreement of the Member States and subsequent contract under private law and funded by them, is only temporary, lasting until 2013.13 That temporary emergency instrument is to be replaced by a permanent rescue mechanism, the European Stability Mechanism (ESM) on the basis of an international treaty between the euro area Member States and an amendment to Article 136 TFEU expressly authorising them to establish such a mechanism.14 As this treaty was to be signed only six days after the oral proceedings in the three cases before the FCC15 and was in the process of Member State ratification while the FCC deliberated, the eyes of everyone in the world interested in monetary and financial stability were on the German Court. It bore a very heavy responsibility indeed, dealing with one of those ‘great cases’ which tend to make bad law.16 Had the FCC stopped the 10 Several of the complainants and their representatives have for almost twenty years been involved in attempts to have the FCC ‘save’ German sovereignty from the further deepening of European integration. 11 Many more constitutional complaints against the measures to save the euro are pending; the FCC selected three of them to conduct a pilot procedure. 12 Council Regulation (EU) No. 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism, OJ 2010 L 118, 1. 13

Christoph Ohler, The European Stability Mechanism: The Long Road to Financial Stability in the Euro Area, GYIL 54 (2011), 47. 14

For the details, see ibid.

15

The oral proceedings were conducted on 5 July 2011 and a preliminary version of the Treaty Establishing the European Stability Mechanism was signed on 11 July 2011, available at: http://www. consilium.europa.eu/media/1216793/esm%20treaty%20en.pdf (accessed on 7 October 2011). The final version was signed on 2 February 2012, available at: http://www.european-council.europa.eu/ media/582311/05-tesm2.en12.pdf (accessed on 8 February 2012). 16 US Supreme Court, Northern Securities Co. v. United States, 24 S. Ct. 436, 468 et seq. (1904) (J. Holmes, dissenting).

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German contributions to the bailout of Greece or the EFSF, and thus also the ESM, the consequences could well have been disastrous in financial and political terms, for Germany, the EU and indeed the entire world. Ultimately, therefore, these were not ideal cases for the Court to flex its muscles either. The FCC, having already rejected their applications for interim injunctions in 2010,17 once more disappointed the eurosceptics, this time unanimously dismissing their constitutional complaints.18 Before reading out the judgment, the President of the Court indicated in his introduction that the Court was well aware of the importance of its decision. But he also warned that the dismissal of the constitutional complaints should not be misinterpreted as a constitutional blank cheque for further financial ‘rescue packages’. The complainants had argued that both the bailout of Greece and the EFSF were contrary to EU law (Articles 125, 123 (1) TFEU). In view of their negative impact on monetary stability, both measures also violated the complainants’ fundamental right to property (Article 14 BL). Finally, they were incompatible with the principle of democracy because, due to the sheer volume of the financial guarantees and potential obligations involved,19 they undermined parliamentary control over the budget and in this respect devalued complainants’ fundamental right to vote (Article 38 BL). Admissibility: The FCC decided that the complaints were only partly admissible. In this respect, the decision was taken 7:1 – one unidentified judge would have dismissed them as altogether inadmissible. The majority considered those parts of the complaints as inadmissible which challenged decisions of the Council of the EU and of the Representatives of the Governments of the EU Member States meeting within the Council. These were not German sovereign acts challengeable by constitutional complaints pursuant to Article 93 (1) No. 4a BL and Section 90 of the Act on the Federal Constitutional Court.20 Nor was there any issue concerning the direct appli17

See Giegerich (note 9).

18

FCC, 2 BvR 987/10 et al. of 7 September 2011, available at: http://www.bverfg.de/entscheidungen/ rs20110907_2bvr098710.html (in German). Press release in English available at: http://www.bverfg.de/ pressemitteilungen/bvg11-055en.html (both accessed on 7 October 2011). 19

While Germany contributed guarantees of up to € 22.4 billion to the bailout of Greece, the German share in the EFSF amounts to € 147.6 billion in guarantees. Together, these sums make up roughly one half of the annual expenditures of the Federal Republic of Germany. 20

Act on the Federal Constitutional Court (Gesetz über das Bundesverfassungsgericht), 11 August 1993, BGBl. I, 1473, as amended on 24 November 2011, BGBl. I, 2302.

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cation of those acts in Germany which could be prevented by filing a constitutional complaint and thus activating the ultra vires prong of the FCC’s review powers. The complaints were also inadmissible to the extent to which they challenged the participation of the German Federal Government in the adoption of the aforementioned decisions on the EU level because these German participatory acts did not directly affect the complainants. Here the Court not only referred to its settled jurisprudence but added the following sentence: “In this respect, the same holds true as with regard to acts of German organs participating in the conclusion of international treaties, despite the differences between the law established by international treaties and supranational law.”21 The second half of this sentence is as obvious as it is remarkable, because the FCC had only two years previously vigorously asserted that EU law was part of public international law in its judgment on the constitutionality of the Treaty of Lisbon, the EU being nothing more than an ordinary inter-governmental organisation.22 Yet, the FCC judgment still shows some terminological inconsistencies. It qualifies European integration as a whole as an ‘intergovernmental’ system (like systems of collective security),23 a term to be used properly only with regard to the Common Foreign and Security Policy. In another context, it more correctly speaks of a ‘supranational Union’.24 The FCC later distinguishes ‘intergovernmentally or supranationally agreed’ measures25 and then again mentions financial ‘mechanisms established by a treaty under public international law’.26 Even to the extent to which the complaints were directed against the two German acts of parliament implementing the bailout of Greece (the Monetary Union Finan-

21

The original reads thus: “Insoweit gilt ungeachtet der zwischen Völkervertragsrecht und supranationalem Recht bestehenden Unterschiede nichts anderes als für Mitwirkungshandlungen deutscher Organe an völkerrechtlichen Verträgen.” FCC (note 18, para. 115). 22

See Giegerich (note 1), 19 et seq. See also infra ‘Evaluation’.

23

“System intergouvernementalen Regierens,” FCC (note 18), para. 124.

24

Ibid., para. 98.

25

“[…] einem intergouvernemental oder supranational vereinbarten […] Bürgschafts- oder Leistungsautomatismus,” ibid., para. 127. 26

“Völkervertraglichen Mechanismen,” ibid., para. 128.

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cial Stability Act27) and the EFSM (the Euro Stabilisation Mechanism Act28), they were only partly admissible. They were inadmissible to the extent to which the complainants asserted violations of their fundamental right to property (Article 14 BL), because they could not show that the challenged acts were intended or likely to devalue the euro’s purchasing power to an extent that might raise a justiciable issue under Article 14 BL. The complaints were however admissible to the extent to which the complainants asserted that the budgetary autonomy of the German Federal Parliament (Deutscher Bundestag) was violated. They could do this on the basis of their fundamental right to vote in federal elections (Article 38 (1) cl. 1 BL) in conjunction with the principle of democracy embodied in Article 20 (1) and (2) BL which is transformed into constitutional ius cogens by Article 79 (3) BL. The majority thereby clarified that the FCC was exercising its reserved ‘identity’ review power – not directly regarding EU acts, but German acts adopted to implement intergovernmental political decisions that were made within the (European) Council and closely connected with the EU, although they technically remained outside the scope of the Treaties. It would thus not have been contrary to EU law had the FCC struck down the two acts, because there was no EU law (nor public international law) requiring Germany to enact them in the first place. It would, however, have destroyed the German government’s political credibility within the EU and further afield at the worst possible moment. The fact that one judge dissented from the acceptance of the complaints’ partial admissibility, albeit unfortunately without making public his or her reasons in a separate opinion, caused the majority to once again confirm the controversial procedural avenue via the right to vote (Article 38 BL) which it had opened to eurosceptics in the Maastricht judgment of 199329 and extended in the Lisbon judgment of 2009;30 these were enabled to challenge and thereby at least delay the entry into force of amendments to the Treaties that led to any deepening of European integration and 27

Monetary Union Financial Stability Act (Gesetz zur Übernahme von Gewährleistungen zum Erhalt der für die Finanzstabilität in der Währungsunion erforderlichen Zahlungsfähigkeit der Hellenischen Republik) (Währungsunion-Finanzstabilitätsgesetz), 7 May 2010, BGBl. I, 537. 28 Euro Stabilisation Mechanism Act (Gesetz zur Übernahme von Gewährleistungen im Rahmen eines europäischen Stabilisierungsmechanismus), 22 May 2010, BGBl. I, 627. 29

FCC, BVerfGE 89, 155.

30

FCC, BVerfGE 123, 267.

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accordingly reduced the autonomous decision-making power of the German parliament.31 In the current case, the majority further extended that avenue now also to cover comparable commitments undertaken in a treaty subject to public international law which are institutionally connected with the supranational Union, if they permanently limit the democratic self-government of the people to such an extent that core political decisions can no longer be autonomously made.32

Although in the present case there was no treaty subject to public international law involving any commitments for Germany but simply an inter-governmental political agreement followed by a contract concluded under private law,33 one can still speak of ‘comparable commitments undertaken’ because those political commitments were unquestionably firm, given the circumstances. Indeed, the Court’s majority therefore even further broadened the procedural avenue for eurosceptics. By ordinary standards, their constitutional complaints which challenged statutes on fiscal issues with no individual effects on them would have been obviously inadmissible. The extension is certainly logical, as long as one accepts the FCC’s premise that in the context of European integration (and nowhere else) every voter should be enabled to petition the Court to stop the (super-) majority in the Bundestag from giving up powers. Since the FCC considers the EU as incurably undemocratic,34 every power transfer to the Union in its view inevitably makes government in Germany less democratic. In reaching this viewpoint, the Court ignores two fundamental principles of the TEU: the principle of the closest possible proximity to the citizens (Article 1 (2) TEU) and the principle of subsidiarity (Article 5 (3) TEU). These principles ensure that only those competences which can no longer be exercised effectively solely by the individual Member States are transferred to the EU and henceforth exercised jointly. In other words, power transfers to the EU can be construed as a reacquisition of sovereignty that was lost in fact (though not lost in law) and thus as a positive develop-

31

See Giegerich (note 10), 868.

32

FCC (note 18), para. 98.

33

Daniel Thym, Euro-Rettungsschirm: zwischenstaatliche Rechtskonstruktion und verfassungsgerichtliche Kontrolle, Europäische Zeitschrift für Wirtschaftsrecht 12 (2011), 167, 168. 34 This was made clear in the Lisbon judgment where the FCC identified the European Parliament in its present composition as at best semi-democratic. See Giegerich (note 1), 34 et seq.

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ment in democratic terms, because effective co-decision-making power is better than ineffective autonomous decision-making power. In spite of the critique in the legal literature, the FCC expressly stuck to its jurisprudence that singles out European integration for easy constitutional attacks by practically anybody. It referred to the democratic entitlement of every citizen that is ultimately rooted in human dignity. This entitlement would founder if parliament were able to give up core elements of political self-determination and thus permanently deprive citizens of their democratic influence. In reality, however, citizens are not at all deprived of their democratic influence when Germany transfers powers to the EU: this can still be exercised by voting on the national as well as the EU level, influencing the political direction of both Germany, including her vote in the Council of the EU, and the EU. European integration does not eliminate the democratic self-determination of the peoples of the Member States, it merely transforms it. In any event, the FCC felt constrained to underline that constitutional complaints based on Article 38 BL would only be admissible if the complainant could arguably claim that his or her fundamental right to vote would be voided by the challenged act. This would be the case if parliament’s powers were depleted to the extent that the voters’ political will could no longer be realised.35 In the eyes of the majority, the complainants had met their burden of proof: they had made an arguable claim that the challenged acts were initial steps possibly leading to an ever-extending liability automatism that would ultimately deprive the German parliament of its budgetary autonomy and thus a democratically essential power.36 Merits: The FCC unanimously dismissed the admissible parts of the constitutional complaints as unfounded. Having underlined the democratic importance of the budgetary autonomy of the Federal Parliament, the ‘power of the purse’ enabling it to control the federal government in the most comprehensive manner, the Court acknowledged that the Basic Law’s authorisation and indeed mandate to integrate Germany in a united Europe inevitably goes along with legal and financial commitments. Even if these commitments were far-reaching, the budgetary autonomy of the Federal Parliament would not be infringed. The principle of democracy, however, required that the Bundestag remained the institution that made the decision on 35

FCC (note 18), para. 102.

36

Ibid., paras. 96 et seq.

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revenues and expenditures autonomously, also in regard of international and European commitments. Any arrangement under which decisions on essential questions of budgetary policy concerning revenues and expenditures could be made without the prior consent of the Bundestag or relevant supranational legal commitments could be made without its consent was therefore unconstitutional, because parliament would thereby be reduced to a rubber-stamp institution which could no longer exercise overall budgetary responsibility. This passage is more cautiously formulated than one in the earlier FCC decision on the European Arrest Warrant which had provoked a vigorous dissent. There the majority held that framework decisions made under the former third pillar of the EU Treaty were democratic precisely because the German Bundestag retained the power (though not the right) to refuse their transposition into national law.37 According to the acquis communautaire of the time, the Commission could not institute infringement proceedings against Member States for failure to transpose framework decisions, even though such failure was a clear violation of the EU Treaty. The FCC’s reasoning was obviously inconsistent with the rule of law that is also part of the inviolable core content of the Basic Law (Article 79 (3) BL). In playing off democracy against the rule of law, it introduced a fundamental contradiction into the system of core values of the German constitution. After the Treaty of Lisbon extended the jurisdiction of the ECJ, infringement proceedings can now be instituted in all areas of EU law, except for the Common Foreign and Security Policy (Article 275 TFEU). Accordingly, Member States can no longer with impunity renege on (almost) any legal commitments under EU law, or on financial commitments imperatively resulting from them. But in the present cases, any financial commitment of Germany was based only on a political agreement which could not be judicially enforced. Still, the majority does not repeat the legal reasoning of the European Arrest Warrant decision. Rather, it underlines the importance of parliament’s consent to any prior legal commitment that might prejudice its later budgetary decision-making.38 The FCC held in the present cases that the principle of democracy prevented the Federal Parliament from transferring indeterminate fiscal empowerments on other 37

FCC, BVerfGE 113, 273, 301; see the dissenting opinion by Judge Lübbe-Wolff, ibid., 336.

38

FCC (note 18), para. 124.

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actors. In particular, it must not surrender to financial mechanisms that can lead into incalculable burdens on the budget without its prior consent, no matter whether in the form of additional expenditures or loss of revenues. Accordingly, the principle of democracy would be violated if the determination of the type and amount of public dues imposed on the citizens were to be supranationalised ‘to an important extent’ and thus excluded from the disposition of the Bundestag. If taxation may thus not be supranationalised ‘to an important extent’, the transfer of some taxing power to the EU is apparently allowed, but the extent to which this is permissible has been left unanswered. The FCC explained that the German parliament’s budgetary autonomy meant that it had to remain master of its decisions on revenues and expenditures, which were to be taken free from heteronomous determinations by EU organs and other Member States. The Court recognised the existence of considerable tension between this principle and the empowerment of the German executive to assume guarantees for the solvency of other Member States. The principle of democracy prevented parliament from consenting to any automatic financial transfers or guarantees not subject to strict requirements which were agreed in intergovernmental or supranational form and could lead to unlimited obligations beyond parliament’s control, once the mechanism was set in motion. Rather, it was indispensable that every grant of larger amounts of financial aid by Germany out of solidarity with other Member States remained subject to parliamentary consent. Where Germany participated in a system of financial safeguards in which the default of a Member State could have a major effect on German budgetary autonomy, sufficient parliamentary influence must also be ensured on the way the means put at the system’s disposal were used. In this context, the FCC referred to the concept of the Bundestag’s ‘responsibility for integration’ which it had developed in the judgment on the Treaty of Lisbon with regard to the transfer of legislative powers to the EU and which it now extended to measures with equivalent budgetary effects.39 The FCC next took up the important question of whether the concept of the nontransferable budgetary autonomy of the Member States’ parliaments which it had developed in respect of Germany was compatible with the Treaties. With regard to procedure, the FCC did not even mention its obligation, as a last-instance court, to 39

Ibid., para. 128.

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make a reference to the ECJ pursuant to Article 267 (3) TFEU. It apparently assumed that the answer was clear (acte clair)40 and thus missed another chance to actively co-operate with the ECJ. On the other hand, the delay brought about by any reference to Luxembourg would have caused political uncertainty about the fate of the EFSF and the ESM and further irritated the financial markets. With regard to substance, the FCC correctly underlined that the monetary union established by the Treaties was firmly rooted in the concept of monetary stability, which had been the essential basis for Germany’s ratification of the Treaty of Maastricht. From a general survey of Articles 123–126, 127 (1), 130 and 136 TFEU, the Court then concluded that the autonomy of the national budgets was a constitutive element of the European monetary union in its present form: the Treaties were intended to prevent the assumption of liability for financially effective decisions of other Member States in the form of any direct or indirect communitisation of sovereign debts. Even provided that the FCC’s interpretation of the TFEU was not only correct but so obvious that no reference to the ECJ was needed, the answer to at least two other questions is not at all clear: was the Council Regulation (EU) No. 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism properly based on Article 122 (2) TFEU? Does Article 125 (1) TFEU also exclude voluntary assistance by Member States to one of them which can no longer meet its financial commitments?41 Both issues were raised by complainants, but their constitutional complaints were inadmissible in this regard. Whether at least the second question (and its reference to the ECJ under Article 267 (3) TFEU) could so easily be circumvented by the FCC is however problematic. Assuming that Article 125 (1) TFEU prevents Member States from even voluntarily granting aid to financially ailing Member States in the overall interests of promoting fiscal responsibility on which monetary stability is based, then that treaty violation would also constitutionally doom the challenged German acts. Article 23 (1) BL does not authorise German participation in a scheme which is incompatible with the Treaties.

40 41

ECJ, Case 283/81, CILFIT, 1982 ECR 3415.

Ulrich Häde, Die europäische Währungsunion in der internationalen Finanzkrise – An den Grenzen europäischer Solidarität?, Europarecht 45 (2010), 854; Phoebus Athanassiou, Of Past Measures and Future Plans for Europe’s Exit from the Sovereign Debt Crisis: What is Legally Possible (and What is Not), European Law Review 36 (2011), 558.

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The FCC even expressly stated that German authorities were constitutionally bound to abide by EU law “where they exercise functions for the EU within the institutional set-up of the EU.”42 This is too narrow: the constitutional commitment to European unification43 read together with the rule of law principle44 imposes a general constitutional obligation on the German authorities to comply with EU law, at least the constitutional law of the EU (i.e. the Treaties). But when the German legislature enacts statutes which are so closely intertwined with the EU as the two acts in issue in the present cases, even the narrow definition of the FCC is met. Unfortunately, the FCC held that its right-to-vote approach to the admissibility of the constitutional complaints does not cover this objection against the acts. This does a disservice to legal certainty: we are left with two acts which are potentially contrary to both EU law and the German Basic Law, but there is no immediately available procedural way to clarify these issues. On the other hand, it is not likely that the ECJ would undermine the efforts of the EU and the euro area Member States to save the euro by any narrow interpretation of the TFEU, given the political and financial emergency in the EU and beyond. Ultimately, therefore, it is relatively safe to infer that the acts are compatible with the TFEU, as the ECJ would have interpreted it. As a final touch to the elaboration of the proper standard of review, the FCC added that it could only look for manifest violations of parliament’s budgetary autonomy because it had to respect the legislature’s margin of appreciation, in particular with regard to the risk assessment concerning financial guarantees, the sustainability of future federal budgets and the future economic performance of the German State. This was because the legislature had an expertise in these regards which the Court was lacking. In applying this standard, the FCC found that the Bundestag had not impermissibly voided its budgetary powers. The principle of democracy prevented the assumption of commitments which, albeit in the form of guarantees, imposed a disproportionate burden on the current or future federal budgets, but this limit had not been exceeded in the present cases. For that would require that parliament’s budgetary autonomy was not only constrained, but practically completely depleted for a considerable period of time. This was not the case with either of the two acts. The FCC here used a very deferential standard of review. 42

FCC (note 18), para. 109.

43

See the Preamble and Art. 23 (1) BL.

44

Art. 20 (3) BL.

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However, the FCC took exception to the relatively weak position that parliament was accorded in the Euro Stabilisation Mechanism Act. The Federal Ministry of Finance is empowered by the Act to assume financial guarantees of up to € 123 billion for the sake of the stability of the monetary union. The Federal Government is only required to strive to reach a prior agreement with the Federal Parliament’s Budget Committee before any financial commitment is made (Section 1 (4)).45 For the FCC, this was not enough to ensure the permanent influence of parliament on the decisions concerning the assumption of guarantees. Accordingly, to save it from unconstitutionality, the provision had to be re-interpreted in conformity with the Basic Law in the sense that the Federal Government was required to obtain the Budget Committee’s prior consent, except in cases of extreme urgency in which there were compelling reasons for the immediate assumption of the guarantees. It is questionable whether Section 1 (4) Euro Stabilisation Mechanism Act can really thus be ‘re-interpreted’ to make it constitutional. The FCC’s ‘re-interpretation’ rather amounts to a re-formulation reserved to the legislature. On the other hand, it would have been somewhat formalistic to declare the provision void, state exactly how it would have to be re-formulated and then let the legislature practically copy and paste the FCC’s draft law. That would have unsettled the financial markets unnecessarily. There is another indication that the FCC went out of its way to uphold the Euro Stabilisation Mechanism Act: the judges implicitly approved the delegation of powers of the Bundestag’s plenary to a committee even though such transfer is not specifically authorised by the Basic Law.46 This instance of judicial restraint can only be explained by the special circumstances of the case. In a more recent decision, the FCC confirmed that the Bundestag’s plenary could in exceptional cases delegate its participation rights and thus its bugetary responsibility to a committee, provided this was necessary to maintain the functioning of the Bundestag in cases of extreme urgency or need for secrecy.47 45 “Vor Übernahme von Gewährleistungen nach Absatz 1 bemüht sich die Bundesregierung, Einvernehmen mit dem Haushaltsausschuss des Deutschen Bundestages herzustellen […]”. 46

For an example of such an authorisation see Art. 45 BL according to which the Bundestag may authorise the Committee on the Affairs of the EU to exercise certain rights of the Bundestag. That authorisation does not cover the instant delegation to the Budget Committee. 47

FCC, 2 BvE 8/11 of 28 February 2012, paras. 123 et seq., available at: http://www.bverfg.de/ entscheidungen/es20120228_2bve000811.html (accessed on 28 February 2012).

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Evaluation: The express recognition by the FCC of the differences between public international law and supranational EU law is indeed welcome progress. The judges’ change of mind since the Treaty of Lisbon judgment of 2009 was possibly triggered by the deliberate decision of the EU and Member States to base the future permanent ESM on a dual basis, consisting of EU primary law (an amendment to Article 136 TFEU) and a treaty concluded by the euro area Member States that sets up the ESM as an international organisation under public international law.48 That decision was made precisely because of the fundamental differences between the two bodies of law. More specifically, it was caused by Article 48 (6) cl. 3 TEU which excludes the transfer of additional competences to the EU by way of the simplified treaty revision procedure49 – the only realistic way to speedily put into force the new Article 136 (3) TEU. The most recent project to safeguard the stability and integrity of the Economic and Monetary Union of the EU, the new ‘fiscal compact’, was initiated on 9 December 2011 by the Euro Area Heads of State or Government. It includes measures pertaining to primary law, in particular the reinforcement of the rules governing the excessive deficit procedure (Article 126 TFEU) by the introduction of automatic consequences when a Member State breaches the deficit ceiling of 3 % of the gross domestic product.50 Since the United Kingdom was not ready to agree to an amendment to Article 126 TFEU, the Euro Area Heads of State or Government decided to adopt the necessary measures through an international agreement to be signed in March 2012 at the latest. They also stated that the objective remained to incorporate these provisions into the Treaties as soon as possible. All the non-euro area Member States (except the UK) “indicated the possibility to take part in this process after consulting their Parliaments where appropriate.”51 Primary law of course limits the possibilities of 26 Member States to change the deficit rules of the TFEU by an international agreement inter se even more than public international law.52

48

See Conclusions of the European Council of 24/25 March 2011, Annex II, 22.

49

See Ulrich Hufeld, Zwischen Notrettung und Rütlischwur: der Umbau der Wirtschafts- und Währungsunion in der Krise, Integration 34 (2011), 117, 124 et seq. 50

Art. 1 of Protocol (No. 12) on the Excessive Deficit Procedure, 30 March 2010, OJ 2010 C 83,

279. 51

Statement by the Euro Area Heads of State or Government of 9 December 2011.

52

See Art. 41 (1)(b) of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155,

331.

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Further proceedings are pending before the FCC on whether the obligations of the Federal Government under Article 23 (2) BL to keep the Bundestag informed, comprehensively and at the earliest possible time, also extend to such international agreements outside EU law but closely related to the European integration.53 At first sight, the outcome of this ‘great case’ seems to be relatively modest – a ‘reinterpretation’ of a short clause in a statutory provision. This does not necessarily turn it into ‘bad law’ – the outcome is supported by this article. But it proves again that the course which the FCC has embarked upon since the Maastricht judgment of 1993 in trying to determine the direction and speed of European integration is wrong: it necessarily forces the FCC into political waters in which a court should not sail. Whenever the judges then recognise that they have (again) reached unnavigable waters, they launch a ‘rowing boat’ to ensure their safe return. The ‘rowing boat’ which the FCC has used, both in the judgment on the Treaty of Lisbon in 200954 and in the present judgment, has been the strengthening of the Bundestag’s position in the national decision-making process on German EU policy. This is indeed the proper approach for a national court in a system based on the principle of sincere cooperation (Article 4 (3) TEU): whenever one of the common values of the EU and Member States (such as democracy) needs to be strengthened, the national courts should make the necessary adjustments of the Member State component that is subject to their jurisdiction. In the 2009 judgment, the FCC practically imposed the ‘responsibility for integration’ on the Bundestag, which it had heretofore not been ready to assume voluntarily, leaving the formulation of EU policy instead mostly to the Federal Government (Bundesregierung). In the present judgment, that responsibility has now quite logically been extended to also include fiscal responsibility. Whereas the second chamber of the German legislature, the Federal Council (Bundesrat) of representatives of the governments of the German Federal States (Länder), has vigorously expanded its powers to co-determine German EU policy since the ratification of the Single European Act in 1986, the Bundestag has so far been rather sluggish in this respect. Apparently, it had to a large extent settled for the general political dependence of the Federal Government on the parliamentary

53

FCC, 2 BvE 4/11 (still pending).

54

See note 1.

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majority that seemingly made any specific involvement of the Bundestag in EU matters largely unnecessary. This kind of parliamentary disengagement has been definitely terminated by the FCC, which is certainly a positive from the perspective of the Basic Law’s concept of parliamentary democracy (or a somewhat idealised version of it). At the same time, it clearly proves that EU policy has separated from foreign policy, because, with respect to the foreign relations power, the FCC has defined the parliamentary influence on executive decision-making much more narrowly.55 This again confirms the particularity of European integration in both legal and political terms: it is obviously not an ordinary foreign policy endeavour being pursued in the form of public international law. From the perspective of the EU, the strengthening of national parliamentary influence on EU decision-making by virtue of national (constitutional) law is more ambivalent. On the one hand, the representative democracy of the European Union has a dual basis: besides the input from the European Parliament, the input from the Member States via the (European) Council adds an important element, guaranteeing the democratic legitimacy of EU acts.56 The Treaties actually presuppose that all the Member States are effectively functioning democracies (Articles 2, 49 TEU). Article 10 (2) TEU rightly emphasises that the national governmental representatives in the (European) Council are “themselves democratically accountable either to their national Parliaments, or to their citizens.” The firmer this governmental accountability is embedded in national constitutional law, the further the democratic (input) legitimacy of the EU increases. If the position which the government intends to adopt in the Council requires prior parliamentary approval, national accountability assumes its strictest and most effective form. On the other hand, such national arrangements tend to complicate the decisionmaking on EU level which depends on the Council members’ readiness and ability to compromise. The more difficult EU decision-making becomes, however, the fewer decisions will actually be made and that again will diminish the EU’s output legitimacy. It is for this reason that the Treaties have refrained from according national 55 FCC, BVerfGE 68, 1, 87; id., BVerfGE 90, 286, 363; id., BVerfGE 104, 151, para. 149. With regard to the war power, however, parliament has the final say on the overseas deployment of German troops when hostilities are ongoing or imminent, FCC, BVerfGE 90, 286; id., BVerfGE 121, 135. 56

See Art. 10 (1), (2) TEU.

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parliaments any formal right to participate in ordinary decision-making on the EU level.57 On this background, the German Federal Parliament’s ‘responsibility for integration’ has a national and an EU component. The first one encompasses the responsibility to exercise parliamentary influence on the formulation of German EU policy. The second component subsequently comes in, deriving from Article 4 (3) TEU. It obliges the Bundestag to decide quickly on the direction of German EU policy and take the constraints of the EU decision-making process into account, leaving the Federal Government enough room for compromises in the (European) Council. The present judgment provides an important parameter for the required parliamentary input in the operation of the future ESM. In an intermediate reaction which concerned the increase of guarantee amounts put at the disposal of the temporary EFSF that had been agreed on 11 March and 21 July 2011 by the Heads of State or Government of the euro area Member States,58 parliament has already considerably extended its co-determination rights so as to secure its overall budgetary responsibility by adding four new sections to the Euro Stabilisation Mechanism Act which regulate in detail the participation of the Bundestag in the German decision-making process with regard to emergency financial measures for the benefit of a euro area Member State.59 The new Section 3 (3) was immediately challenged by two members of the Bundestag.60 That section provides that in cases of special urgency or confidentiality the participation rights of the Bundestag should be exercised by only nine of the 41 members of the Budget Committee specifically elected by the Bundestag (the Committee of Nine). The applicants claimed that this arrangement infringed their status as members of the Bundestag (Article 38 (1) cl. 2 BL). On their application, the FCC issued an interim injunction prohibiting the Committee of Nine from exercising the participation rights of the Bundestag while the principal proceedings were still pending.61 In the subsequent judgment on the merits, the FCC unanimously decided mostly in favour of the applicants. With one exception, it did not find that extreme 57 See Art. 12 TEU and Protocol (No. 1) on the Role of National Parliaments in the European Union, as amended by the Treaty of Lisbon, 30 March 2010, OJ 2010 C 83, 203. 58

It raises the German quota from € 123 billion to € 211 billion.

59

See the Act amending the Euro Stabilisation Mechanism Act, 9 October 2011, BGBl. I, 1992.

60

Their application was based on Art. 93 (1) No. 1 BL.

61

FCC, 2 BvE 8/11 of 27 October 2011, available at: http://www.bundesverfassungsgericht.de/ entscheidungen/es20111027_2bve000811.html (accessed on 8 March 2012).

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urgency or the need for secrecy required the delegation of the participation rights of the Bundestag to such a small body.62 The one exception was the purchase of sovereign bonds by the EFSF on the secondary market. Even plans in this regard had to remain absolutely secret; otherwise the measure could not be successfully carried out. Moreover, although the FCC does not mention them, the controversial common European sovereign bonds (Eurobonds) are also affected by the judgment. They would be issued and guaranteed collectively by the euro area Member States, amounting to a major step closer toward a fiscal union. While such Eurobonds would not void parliament’s budgetary autonomy, they would impose additional burdens on the federal budget. This would require the Federal Parliament to retain sufficient influence on and control over their issuance – which would be difficult to realise. The same would apply were plans to install a European economic governance of the euro area Member States to become materialised. All major future measures taken for the management of the euro crisis will undoubtedly be brought before the FCC. How will it deal with them? An indication may be deduced from the address given by the President of the FCC during the ceremony celebrating the Court’s 60th anniversary on 28 September 2011.63 He remarked that the process of Europeanisation and internationalisation would continue, despite the current financial crisis. This would, however, not make national constitutions and constitutional courts less important, because for the time being, the EU Member States remained the masters of the Treaties. Even if they were to transfer further sovereign rights, only a European court association consisting of the ECJ, the European Court of Human Rights and the national constitutional courts would be able to develop a common European constitutional law that could sufficiently take into account the different legal cultures and traditions of the Member States. In this regard, the FCC’s abundance of competences and high esteem in Europe and the world imposed on it a special responsibility which the Court was willing to assume. From a pessimist’s perspective, that may sound threatening in the sense of the FCC assuming the role of master of the Treaties. Optimistically interpreted, the passage indicates that the FCC will henceforth consider the judicial monitoring of European 62 63

FCC (note 47). Only six of the eight judges took part in the decision.

Available at: http://www.bverfg.de/aktuell/60jahre-rede-praesident.html (accessed on 7 October 2011).

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integration as a common endeavour of the European and the national courts. The FCC will also assume responsibility for the effective functioning of the European Union and not only for ‘protecting’ national sovereignty from it. For those who make the decisions on German EU policy in the present difficult situation, however, the future course of the FCC remains an element of uncertainty. The shadow of the FCC looms large over the German delegation at every negotiating table in the EU.

Legal Persons from EU Member States and their Entitlement to Fundamental Rights under the German Basic Law JAN OLIVA(

Legal Background: According to Article 19 (3) German Basic Law (Grundgesetz),1 the fundamental rights provided therein apply to domestic legal persons insofar as they can be exercised collectively. A legal person is considered domestic if its de facto centre of activity is located in Germany.2 In restricting its applicability of the Basic Law to domestic legal persons, the drafters apparently intended to give Germany some leeway for negotiations concerning international agreements pertaining to the treatment of German legal persons abroad (fremdenrechtlicher Aktionsspielraum). The general restriction would allow Germany to confer improvements in bilateral treaties on the basis of reciprocity.3 Despite voices arguing that, as Article 19 (3) Basic Law omits the word ‘only’, the fundamental rights could be applicable to foreign legal persons after all,4 the Federal Constitutional Court (Bundesverfassungsgericht) held that the wording and purpose of Article 19 (3) Basic Law are unambiguous and that foreign legal persons are not entitled to fundamental rights under the German Basic Law.5 (

Doctoral Candidate at the University of Trier (Chair of Prof. Dr. Alexander Proelss).

1

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944. 2

Barbara Remmert, Art. 19 Abs. 3, in: Theodor Maunz/Günter Dürig (eds.), Grundgesetz Kommentar, vol. 3 (55th rel. 2009), paras. 78 et seq. 3

Annette Guckelberger, Zum Grundrechtsschutz ausländischer juristischer Personen, Archiv des öffentlichen Rechts 129 (2004), 618, 620. 4

Christoph Degenhart, Grundrechtsschutz ausländischer juristischer Personen bei wirtschaftlicher Betätigung im Inland, Europäische Grundrechte Zeitschrift 8 (1981), 161, 163. 5

See Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 21, 207, 209.

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The question arises though, whether this reasoning also applies to legal persons with registered offices in Member States of the European Union (EU). The prohibition of non-discrimination, laid down in Article 18 (1) of the Treaty on the Functioning of the European Union (TFEU),6 suggests that those entities must be treated different than non-EU legal persons. While it is established that this rule applies to legal persons as well as to natural persons7 and is furthermore directly applicable in Member States, it is uncertain which ramifications it has concerning the interpretation of Article 19 (3) Basic Law. Concerning this question, opinions in the German legal community vary. It has been argued that the European principle of non-discrimination only regulates matters concerning the internal market, whereas the fundamental rights laid down in the Basic Law have a much broader scope, so that a conflict between Article 18 (1) TFEU and Article 19 (3) Basic Law only arises when an aspect of the internal market is concerned.8 In contrast, most scholars take the view that the principle of non-discrimination mandates an interpretation of Article 19 (3) Basic Law that includes legal persons from EU Member States.9 With regard to Article 18 (1) TFEU, they argue that the norm has a broad range and prohibits discrimination in any case that falls within the scope of European Union law and is, therefore, not limited to cases concerning the internal market.10 That being said, there is still an ongoing debate about how to achieve this interpretation from a methodical point of view. Proposed solutions include a reading of the word ‘domestic’ as to encompass the territory of the European Union or the supersession of ‘domestic’ by the directly applicable Article 18 (1) TFEU.11

6 Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (Consolidated Version). 7

ECJ, Joint Cases C-92/92 and C-326/92, Phil Collins, 1993 ECR I-5145, para. 33.

8

Helmut Quaritsch, § 120: Der grundrechtliche Status der Ausländer, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts, vol. 5 (2nd ed. 2000), para. 40. 9

Guckelberger (note 3), 630 et seq.; Markus Kotzur, Der Begriff der inländischen juristischen Personen nach Art. 19 Abs. 3 GG im Kontext der EU, Die öffentliche Verwaltung 54 (2001), 192, 195 et seq. 10

Armin von Bogdandy, Art. 18 AEUV, in: Eberhard Grabitz/Meinhard Hilf/Martin Nettesheim (eds.), Das Recht der Europäischen Union, vol. 1 (42nd rel. 2010), para. 34. 11

See Guckelberger (note 3), 632 et seq.

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The Federal Constitutional Court left the matter undetermined12 until an order of 19 July 2011, in which it ruled that the interpretation of Article 19 (3) Basic Law has to be extended to include legal persons from EU Member States.13 Facts of the Case: The complainant is a corporation with registered office in Italy which manufactures furniture designed by Charles-Édouard Jeanneret (better known as Le Corbusier). The copyright for Le Corbusier furniture is held by the Fondation Le Corbusier in Paris as well as two other legal successors of Le Corbusier. The complainant has contracts with these entities which grant him exclusive rights for the manufacture and sale of Le Corbusier furniture. The defendant of the initial case is a manufacturer of cigars who used copies of Le Corbusier furniture to furnish a cigar lounge in one of his exhibition halls. The complainant filed for an injunctive relief on the grounds of a copyright infringement which was dismissed by the Federal Court of Justice (Bundesgerichtshof).14 The Court held that the mere use of the furniture in the lounge did not affect the copyright of the complainant. With his constitutional complaint (Verfassungsbeschwerde), the complainant challenged this decision by the Federal Court of Justice and claimed that the Court misjudged specific provisions of constitutional law: in particular the complainant’s right to property which is guaranteed by Article 14 (1) Basic Law. Decision of the Court: With its order, the Federal Constitutional Court took a position concerning legal persons from EU Member States’ entitlement to fundamental rights under the German Basic Law for the very first time. It started by dismissing the above-mentioned approach of interpreting ‘domestic’ as encompassing the territory of the European Union, because this would exceed the clear wording of the norm.15 The Court rather militated in favour of an extended interpretation of 12

See Federal Constitutional Court, 1 BvR 2043/00 of 22 December 2000, available at: www. bverfg.de/entscheidungen/rk20001222_1brr204300.html (accessed on 1 March 2012); see also id., 1 BvR 1620/03 of 2 April 2004, reprinted in: Neue Juristische Wochenschrift 57 (2004), 3031; id., 1 BvR 853/06 of 27 December 2007, reprinted in: Neue Zeitschrift für Verwaltungsrecht 27 (2008), 670, 671. 13

Id., 1 BvR 1916/09 of 19 July 2011, available at: www.bundesverfassungsgericht.de/entscheidungen/ rs20110719_1brr191609.html (accessed on 1 March 2012). 14 Federal Court of Justice (Bundesgerichtshof), Judgment of 22 January 2009, reprinted in: Rechtsprechungsdienst Zeitschrift für Urheber- und Medienrecht 13 (2009), 531. 15

Federal Constitutional Court (note 13), para. 72.

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Article 19 (3) Basic Law to be achieved by the aforementioned supersession of the word ‘domestic’.16 It then went on to stress the European Union’s development towards a highly integrated ‘association of sovereign states’ (Staatenverbund)17 which mandates a broad interpretation of Article 19 (3) Basic Law.18 The extension of the scope of Article 19 (3) Basic Law to legal persons from EU Member States would fulfil Germany’s contractual obligations imposed by the four freedoms and the subsidiary Article 18 (1) TFEU.19 This extension is also necessary as a legal person from an EU Member State may stake its claims in municipal proceedings on the directly applicable primary law of the Union. However, it is certainly possible that a legal person would need to instigate a constitutional complaint to assert its rights in this regard,20 a prerequisite of which is the entitlement to fundamental rights.21 The Court then reiterated that the aforementioned principles rest on the condition that there is a relation to Union law, i.e. the concerned legal person has to act within the scope of European primary or secondary law.22 This was presently the case since the alleged copyright infringement is pertinent to European copyright law.23 The Court lastly stated that it is not necessary to refer the present question to the European Court of Justice under Article 267 (3) TFEU since the interpretation of Article 18 (1) TFEU is “so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved.”24 Evaluation: With this order the Federal Constitutional Court may have definitively settled a debate that was already leaning heavily toward the Court’s conclusion. 16

Ibid., para. 81.

17

A neologism which was used by the Federal Constitutional Court in its Judgment of 30 June 2009, BVerfGE 123, 267, 348. 18

Federal Constitutional Court (note 13), para. 74.

19

Ibid., para. 75.

20

Ibid., para. 77.

21

See Art. 93 (1) No. 4a Basic Law, see also Sec. 90 (1) Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz), 11 August 1993, BGBl. I, 1473, as amended on 24 November 2011, BGBl. I, 2302. 22

Federal Constitutional Court (note 13), para. 78.

23

Ibid.

24

Ibid., para. 80. see also ECJ, Case 283/81, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, 1982 ECR 3415, para. 16. Whether the Federal Constitutional Court has to refer a case to the ECJ at all can be, depending on the individual circumstances at hand, debatable, since the Court takes into account primarily German constitutional law as opposed to European Union law.

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Frequently cited statements to the contrary25 are mostly decades old and from a time when the European integration process had not reached its current level. The interpretation of Article 19 (3) Basic Law in cases where legal persons from EU Member States are concerned is therefore indeed rather obvious, to use the words of the Court. But there is of course no harm in having a definitive judgment by the Federal Constitutional Court, if only for the sake of legal certainty. Although the complainant in the present case may not particularly enjoy the Courts decision ! his constitutional complaint was dismissed because the Court held that there was no violation of the complainant’s right to property26 – in the future, companies from EU Member States may take comfort in the knowledge that they are entitled to fundamental rights under the German Basic Law insofar as their activities in Germany fall within the scope of European law.

25

See Federal Constitutional Court (note 13), para. 71.

26

Ibid., paras. 83 et seq.

German Practice Regarding Enforcement of Sentences Passed by International Criminal Courts and Tribunals BJÖRN ELBERLING(

Introduction: On 7 July 2011, Johan Tarčulovski, who had been convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY), was transferred to Germany to serve his sentence.1 He is the fourth ICTY defendant to serve his sentence in Germany. This paper will briefly deal with the Tarčulovski Case, but also give a short overview of German practice generally concerning enforcement of sentences passed by international courts and tribunals. The Case of Johan Tarčulovski: Tarčulovski, a former police officer of the Former Yugoslav Republic of Macedonia (FYROM), is the only person convicted by the ICTY for crimes committed during the 2001 conflict in that country. Convicted of war crimes committed against ethnic Albanians, he was sentenced to twelve years’ imprisonment. The judgment became final on 19 May 2010.2 On 23 August 2010, the President of the ICTY designated Germany as the State in which he was to serve his sentence.3 However, it took almost a year for this order to be implemented as the agreement on the terms of enforcement still had to be concluded. Contrary to other States enforcing ICTY sentences, all of whom have entered into general agreements with the Tribunal, Germany negotiates individual agreements for ( Dr. iur. (Kiel), practicing lawyer in Kiel, former Research Fellow at the Walther-SchückingInstitute for International Law at the University of Kiel. 1

ICTY, Press Release 1425 of 7 July 2011, available at: http://icty.org/sid/10726 (accessed on 16 November 2011). 2

See generally ICTY, Case Information Sheet – Boškoski and Tarčulovski, available at: http://icty. org/x/cases/boskoski_tarculovski/cis/en/cis_boskoski_tarculovski_en.pdf (accessed on 16 November 2011). 3

ICTY, President, The Prosecutor v. Johan Tarčulovski, IT-04-82, Order Designating the State in Which Johan Tarčulovski is to Serve His Prison Sentence of 23 August 2010.

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every single case.4 The agreement concerning Tarčulovski was concluded by an exchange of notes, dated 1 November 2010 and 16 June 2011, between the ICTY Registrar and the German Ambassador to the Netherlands.5 Conditions of imprisonment are to be determined by German law, but decisions on early release will be left to the Tribunal.6 If “for any legal or practical reasons, further enforcement has become impossible,” Germany is to inform the Registrar, who is to make arrangements for the transfer of Tarčulovski to the ICTY or another State.7 Shortly after the conclusion of the agreement and after a request made by Tarčulovski for early release had been denied,8 he was transferred to a prison in RhinelandPalatinate. Despite the twelve year’s sentence, his stay there is not likely to be particularly long – taking into account time spent in detention prior to and during the trial, he will have served two thirds of his sentence by March 2013 and will thus, according to the usual practice of the ICTY, be eligible for early release.9 Other ICTY Defendants and the Development of German Practice Generally: This section will quickly detail the cases of the three other ICTY defendants who had previously been transferred to Germany and the evolving domestic provisions governing the enforcement of their sentences. The first defendant to be transferred to Germany was Duško Tadić in 2000.10 His transfer was also based on an ad hoc agreement concluded by exchange of notes between German authorities and the ICTY Registry.11 In the domestic sphere, it was based on the Law on Cooperation with the ICTY of 10 April 1995.12 With this 4

See the list of agreements, available at: http://www.icty.org/sid/137 (accessed on 16 November 2011). 5

The agreement is available on the ICTY website (note 4).

6

Secs. 2 and 7 of the agreement.

7

Secs. 8 (2) and 9 of the agreement.

8

ICTY, President, The Prosecutor v. Johan Tarčulovski, IT-04-82, Decision of President on Early Release of Johan Tarčulovski of 23 June 2011. 9

See ibid., paras. 13, 14.

10

See ICTY, President, The Prosecutor v. Duško Tadić, IT-94-1, Order Designating the State in Which Duško Tadić Is To Serve His Prison Sentence of 8 May 2000. 11 12

All such agreements are available on the ICTY website (note 4).

Act on Cooperation with the ICTY (Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof für das ehemalige Jugoslawien), 10 April 1995, BGBl. I, 485, as amended on 21 June

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transfer, the Tadić Case came full circle as the law had been passed in the first place in order to allow his transfer to the ICTY for prosecution based on a request for deferral by the Tribunal – Tadić had been arrested in Germany and was already on trial before the Bavarian Superior Regional Court (Bayerisches Oberstes Landesgericht) when he was transferred.13 At that time Section 5 of the Law on Cooperation with the ICTY, the provision on enforcement, simply stated that provisions of the Law on International Mutual Assistance in Criminal Matters14 dealing with the enforcement of sentences handed down by courts of foreign States should apply mutatis mutandis, thus opting for a ‘horizontal’ approach to enforcement. This approach clashed with the ICTY’s practice of retaining ultimate control over enforcement, which led to some problems in the drafting of the enforcement agreement. These were solved by principally granting German authorities control over enforcement questions yet still allowing the Tribunal to request that Tadić be transferred back to it if irreconcilable difficulties arose.15 Problems concerning procedure also arose in the context of the request for early release; in the end Tadić was granted early release in July 2008 after serving slightly more than two thirds of his sentence.16 The fact that the sentence passed by the ICTY, twenty years’ imprisonment, surpassed the maximum length that German law allowed for determinate prison sentences (fifteen years’ imprisonment) had apparently not been considered problem2001, BGBl. I, 2144. An English translation of this version of the law is available on the ICTY website (note 4). For comprehensive commentaries in the German language, see Wolfgang Schomburg/Jan Christoph Nemitz, Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof für das ehemalige Jugoslawien – Jugoslawien-Strafgerichtshofgesetz (JStGHG) – Jugoslawien-StGHG, in: Wolfgang Schomburg/Otto Lagodny/Sabine Gleß/Thomas Hackner (eds.), Internationale Rechtshilfe in Strafsachen – International Cooperation in Criminal Matters (4th ed. 2006), 1743 et seq.; as well as Claus Kreß, Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof für das ehemalige Jugoslawien (Jugoslawien-Strafgerichtshofgesetz), in: Heinrich Grützner/Paul-Günter Pötz/ Claus Kreß (eds.), Internationaler Rechtshilfeverkehr in Strafsachen, vol. IV (3rd ed., 2011). 13 See Jan MacLean, The Enforcement of the Sentence in the Tadic Case, in: Horst Fischer/Claus Kreß/Sascha Rolf Lüder (eds.), International and National Prosecution of Crimes Under International Law – Current Developments (2001), 727, 727–731. 14 Law on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen), 27 June 1994, BGBl. I, 1537 as amended on 18 October 2010, BGBl. I, 1408. 15 16

See ibid., 732 et seq.

ICTY, President, The Prosecutor v. Duško Tadić, IT-94-1, Decision of the President on the Application for Pardon or Commutation of Sentence of Duško Tadić of 17 July 2008.

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atic, presumably because the crimes Tadić had been convicted of, including murder, would have resulted in life imprisonment under German law.17 The second convicted person, Dragoljub Kunarac,18 was transferred to Germany in 2002. He is currently serving his sentence in a prison in North Rhine-Westphalia. The sentence imposed by the ICTY, 28 years’ imprisonment, again surpassed the maximum allowed under German law. This was again apparently considered unproblematic, in spite of the fact that the crimes Kunarac had been convicted of, rape and other crimes of sexual violence, would not have carried a life sentence under German law. When the German Law on Cooperation with the International Criminal Court (ICC)19 was passed in 2002, Section 5 of the Law on Cooperation with the ICTY was also reformed.20 ICTY sentences are now enforced according to Sections 41 et seq. of the Law on Cooperation with the ICC, which institute a ‘vertical’ approach acknowledging the international court’s ultimate control over enforcement issues. Section 5 also now foresees that determinate sentences will only be enforced up to a maximum length of 30 years, which corresponds to the maximum determinate sentence the ICC may impose under Article 77 Rome Statute of the International Criminal Court (Rome Statute).21 This was the law applicable in Germany in 2009 when Stanislav Galić, who had been sentenced to life imprisonment by the Appeals Chamber for crimes committed during the siege of Sarajevo, was transferred to Germany.22 In this case, problems 17

See MacLean (note 13), 738–739.

18

See ICTY, President, The Prosecutor v. Dragoljub Kunarac et al., IT-96-23, Order Designating the State in Which Dragoljub Kunarac Is To Serve His Prison Sentence of 26 July 2002; Case Information Sheet – Kunarac et al., available at: http://www.icty.org/x/cases/kunarac/cis/en/cis_kunarac_al_en.pdf (accessed on 16 November 2011). 19 Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof, 21 June 2001, BGBl. I, 2144, as amended on 21 December 2007, BGBl. I, 3198. An English translation is available on the ICC Legal Tools website at: http://www.legal-tools.org/doc/37b6dc/ (accessed on 16 November 2011). A comprehensive commentary in German is provided by Claus Kreß in: Grützner/Pötz/Kreß (note 12). 20

An English translation of the revised Law on Cooperation with the ICTY is available on the ICRC website at: http://www.icrc.org/ihl-nat.nsf/WebLAW!OpenView (accessed on 16 November 2011). 21

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90 (Rome Statute). 22

See ICTY, President, The Prosecutor v. Stanislav Galić, IT-98-29, Order Designating the State in Which Stanislav Galić Is To Serve His Prison Sentence of 3 November 2008; Case Information Sheet – Galić, available at: http://www.icty.org/x/cases/galic/cis/en/cis_galic_en.pdf (accessed on 16 November 2011).

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might arise as to the constitutionality of the sentence under German law given the German Federal Constitutional Court’s finding that life sentences can only be deemed constitutional if the prisoner has a realistic prospect of release at some point.23 A situation could arise in which the ICTY President denies early release, but German courts hold that further enforcement of the sentence would violate the German constitution, the Basic Law (Grundgesetz).24 As far as the relationship between the ICTY and Germany is concerned, the ad hoc agreement solves this problem by simply requiring that, should early release be denied, the prisoner be immediately transferred back to the Tribunal.25 Whether this would pass muster under German constitutional law is open to doubt. On the other hand, given that German law does allow quite long periods of imprisonment in such cases and that the Appeals Chamber had not sentenced Galić to ‘imprisonment for the remainder of his life’, but to ‘ordinary’ life imprisonment subject to credit for time spent in detention during the trial,26 it is likely that the ICTY President will grant early release once Galić is deemed eligible for this under German law and thus the requirements set up by the Federal Constitutional Court are complied with in practice.27 German Practice Concerning Other Criminal Courts and Tribunals: As noted above, Germany is alone among States enforcing ICTY sentences in not having a general agreement with the Tribunal. Neither has Germany joined the group of States which have entered into general agreements on enforcement of sentences with the ICC, the International Criminal Tribunal for Rwanda (ICTR), or the Special Court for Sierra Leone (SCSL).28 However, domestic provisions governing such issues do 23

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 45, 187.

24

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944. 25 Exchange of Notes of 4 November 2008 and 12 December 2008, Sec. 2 (4), available on the ICTY website (note 4). 26 ICTY, Appeals Chamber, The Prosecutor v. Stanislav Galić, IT-98-29, Judgment of 30 November 2006, 185. 27 Generally speaking, it seems likely that all defendants given life sentences by the ICTY will be able to apply for release at some point – see Jamil Ddamulira Mujuzi, Is There a Need for the ICTY to Clarify the Difference(s) between Life Imprisonment and Imprisonment for the Remainder of the Offender’s Life? The Galić and Lukić Decisions, International Criminal Law Review 10 (2010), 855. 28

For lists of States which have entered into agreements with these courts, see their respective websites at http://www.unictr.org/tabid/116/default.aspx, http://www.icc-cpi.int/Menus/ICC/Legal+Texts+

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exist for the ICC and the ICTR. As noted above, Sections 41 et seq. of the Law on Cooperation with the ICC allow enforcement of sentences passed by that court. These provisions are also applicable to sentences handed down by the ICTR, according to Section 5 of the Law on Cooperation with the ICTR.29 Therefore, should one of these courts express an interest in transferring a convicted person to Germany, a legal framework is in place which would allow for ad hoc agreements similar to those detailed above to be negotiated.

and+Tools/Official+Journal/ and http://www.sc-sl.org/DOCUMENTS/tabid/176/Default.aspx (all accessed on 16 November 2011). 29

Law on Cooperation with the ICTR (Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof für Ruanda), 4 May 1998, BGBl. I, 843, as amended on 21 June 2002, BGBl. I, 2144. An English translation is available on the ICRC website (note 19).

Universal Jurisdiction in Germany: The Trial of Onesphore R. Before the Higher Regional Court of Frankfurt PATRICK KROKER(

Since January 2011 Onesphore R. has been standing trial before the Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt) for alleged participation in several killings during the Rwandan genocide in 1994. The city of Frankfurt has a rich history of international criminal law, as it hosted the ‘Auschwitz-trials’ in the 1960s, pushed for by the famous former Hessian chief prosecutor Fritz Bauer. The trial against R., however, is the first trial to take place in Germany for crimes committed on the African continent. From 1988 onwards, Onesphore R. was the mayor of a Rwandan community called Muvumba in northeast Rwanda. In 1990, in the course of the civil war, R. fled with the citizens of his community from the advancing Tutsi-rebels of the Rwandan Patriotic Front (RPF), led by Rwanda’s present president Paul Kagame. The community re-settled in refugee camps in and around the Murambi commune, then governed by Jean-Baptiste Gatete, who is appealing his sentence of life imprisonment from the International Criminal Tribunal for Rwanda (ICTR) for his role in the 1994 genocide.1 The Federal Prosecutor General (Generalbundesanwalt) accuses R. of having instigated and participated in several mass killings of Tutsi in this commune during the first half of April 1994, constituting genocide.2 (

Doctoral Candidate at the University of Hamburg and Law Clerk at the Higher Regional Court of Berlin.

1

ICTR, Trial Chamber, The Prosecutor v. Jean-Baptiste Gatete, ICTR-2000-61-T, Judgment of 31 March 2011, available at: http://www.unictr.org/Portals/0/Case/English/Gatete/judgement/110 331.pdf (accessed on 30 November 2011). 2 Originally, the indictment named three massacres in which the accused allegedly had participated. In the course of the proceedings, however, the chamber modified the charges. Following a proposal by the Federal Public Prosecutor it abandoned the eximanation of two of these massacres because it seemed

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This article sets out analysing the legal and historical reasons that R.’s trial is taking place in Germany, focusing especially on the issue of extraditions of genocide suspects to Rwanda. In the second part, specific evidentiary and procedural issues peculiar to international criminal trials will be discussed. The latter will likely play a role in similar trials under the doctrine of universal jurisdiction in Germany3 and other countries.4

I. Why a Trial in Germany? A. Jurisdiction

Criminal accountability for the crime of genocide was introduced into the German Criminal Code (CC) (Strafgesetzbuch)5 in 1954 with the ratification of the Genocide Convention6 and the creation of Section 220a CC,7 the wording of which largely corresponds to that of Articles 2 and 3 Genocide Convention. In addition, the principle of universal jurisdiction for the crime of genocide was introduced into domestic law. unlikely that R.’s involvement could be proven. Legally this only has a limited effect. The three massacres constituted one charge of genocide as does the one remaining massacre. 3 On 4 May 2011, only weeks after the beginning the trial against R. in Frankfurt, another trial attracting much attention was opened before the Higher Regional Court of Stuttgart against two alleged leaders of the ‘Forces Démocratiques de Libération du Rwanda’ (FDLR) for war crimes and crimes against humanity in the Democratic Republic of Congo, which the two accused allegedly directed from Germany; see BBC News, 4 May 2011, Rwanda: Ignace Murwanashyaka and Straton Musoni tried, available at: http://www.bbc.co.uk/news/world-africa-13275795 (accessed on 2 December 2011); monitoring reports of this trial by Amnesty International are available at: http://www.amnesty-straflosigkeit. de/Main/Murwanashyaka-Trial (accessed on 2 December 2011). 4

See e.g. the discussion of the trial of Francois Bazaramba in Finland by Minna Kimpimäki, Genocide in Rwanda – Is It Really Finland’s Concern?, International Criminal Law Review (ICLR) 11 (2011), 155. 5

German Criminal Code (Strafgesetzbuch), 13 November 1998, BGBl. I, 3322, as amended on 1 November 2011, BGBl. I, 2130. 6

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS 78, 277. 7

Law on the Accession of the Federal Republic of Germany to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (Gesetz über den Beitritt der Bundesrepublik Deutschland zu der Konvention vom 9. Dezember 1948 über die Verhütung und Bestrafung des Völkermordes), 9 August 1954, BGBl. II, 729.

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The entry into force of the Code of Crimes against International Law (CCIL) (Völkerstrafgesetzbuch)8 in 2002 and the transfer of Section 220a CC to Section 6 CCIL did not result in any significant modifications to the substantive law.9 The legislator used this opportunity, however, to amend the law regulating the applicability of international criminal law. It now applies to international crimes that have occurred after 30 June 2002 “even when the offence was committed abroad and bears no relation to Germany.”10 In previous cases, the Federal Court of Justice (Bundesgerichtshof) had demanded a link between the circumstances of the case and Germany in order to legitimise the applicability of German criminal law,11 even though this condition was not contained in the wording of the regulation.12 With the new wording the legislator clearly rejected this narrow interpretation.13 Although this widely criticised14 interpretation, which staggered in the years before reform,15 has thus become obsolete with the clear wording of the new universal 8

Code of Crimes against International Law (Völkerstrafgesetzbuch), 26 June 2002, BGBl. I, 2254. An English translation is available at: http://www.iuscomp.org/gla/statutes/VoeStGB.pdf (accessed on 2 December 2011). 9

Claus Kreß, Sec. 220a, in: Wolfgang Joecks/Klaus Miesbach/Günther M. Sander (eds.), Münchener Kommentar zum Strafgesetzbuch, vol. 3 (2003), para. 26; Andreas Zimmermann, Auf dem Weg zu einem deutschen Völkerstrafgesetzbuch: Entstehung, völkerrechtlicher Rahmen und wesentliche Inhalte, Zeitschrift für Rechtspolitik 35 (2002), 97, 101. 10

Sec. 1 CCIL.

11

See, e.g., Federal Court of Justice (Bundesgerichtshof), Decision of 13 February 1994, reprinted in: Neue Zeitschrift für Strafrecht (NStZ) 14 (1994), 232 and id., BGHSt 45, 65 et seq. For a critical overview see Albin Eser, Völkermord und deutsche Strafgewalt: Zum Spannungsverhältnis von Weltrechtsprinzip und legitimierendem Inlandsbezug, in: id. (ed.), Strafverfahrensrecht in Theorie und Praxis (2001), 3 et seq. 12

Sec. 6 Criminal Code then stated that “German criminal law shall further apply, regardless of the law of the place of their commission, to the following acts committed abroad: 1. genocide (Section 220a) […]”; translation available at: http://www.iuscomp.org/gla/statutes/StGB.htm#6 (accessed on 24 November 2011). 13

Kai Ambos calls it the “legislative sanctioning of the restrictive jurisprudence” of the Federal Court, Kai Ambos, Sec. 1, in: Wolfgang Joecks/Klaus Miesbach/Otto Lagodny (eds.), Münchener Kommentar zum Strafgesetzbuch, vol. 6/2 (Nebenstrafrecht III, Völkerstrafgesetzbuch) (2009), para. 19 (translation by the author). 14

See Kai Ambos, Aktuelle Probleme der deutschen Verfolgung von ‘Kriegsverbrechen’ in BosnienHerzegowina, NStZ 19 (1999), 226; Claus Kreß, Völkerstrafrecht in Deutschland, NStZ (20) 2000, 617, 624. 15 Reservations can already be seen in Federal Court of Justice, Judgement of 21 February 2001, reprinted in: Neue Juristische Wochenschrift (NJW) 54 (2001), 2728; see also Ambos (note 13), para. 19;

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jurisdiction clause cited above, it is nevertheless fulfilled in the case of Onesphore R.: the Accused had resided in Germany for a number of years before he was arrested and had even lived in Germany during the 1980s. Furthermore, he was arrested on German territory, where he had moved voluntarily.16 Jurisdiction to hear the case thus lies with the Higher Regional Court of Frankfurt, the Federal Prosecutor General consequently being the competent prosecution authority17 and the Federal Court of Justice being the potential appellate court.18

B. Onesphore R. in Germany

Twenty years after having studied in the city of Trier, Onesphore R. returned to Germany at the age of 45 on 21 August 2002 on board of a Lufthansa airplane bound for Frankfurt. His request for asylum was granted in 2007. It was not until 2008 that investigative authorities became active in his case. The Rwandan Attorney Generalship requested Interpol to place R. on the list of the most wanted fugitives for the 1994 genocide. When it became known that he lived in Germany, the Rwandan prosecutors requested his extradition. For this reason R. was taken into custody in April 2008.

C. Extradition Request by Rwanda

Since the Higher Regional Court of Frankfurt rejected his extradition to Rwanda,19 R. was released in November of the same year. The reasoning of the judges the Federal Constitutional Court (Bundesverfassungsgericht) left the problem unaddressed in its Decision of 12 December 2000, reprinted in: NJW 54 (2001), 1848, 1853; see also the commentary of Christina Hoß/Russell A. Miller, German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany’s Genocide Jurisprudence, German Yearbook of International Law 44 (2001), 576 et seq. 16 See the decision of a similar case by the Federal Court of Justice, BGHSt 45, 65, 68 et seq., in which the Federal Court approved of German jurisdiction. 17

Secs. 120 (1)(8) and 142a German Code of Court Constitution (Gerichtsverfassungsgesetz), 9 May 1975, BGBl. I, 1077, as amended on 24 November 2011, BGBl. I, 2302. 18 19

Sec. 135 (1) German Code of Court Constitution.

Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt), 2 Ausl A 175/07 of 6 November 2008, available at: http://www.lareda.hessenrecht.hessen.de/jportal/portal/t/s15/page/bslaredaprod. psml?&doc.id=JURE080022673%3Ajuris-r01&showdoccase=1&doc.part=L(accessed on 8 December 2011).

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was based on the Munyakazi decision by the ICTR, discussed in more detail below, in which the extradition of a suspect from Rwanda was denied.20 The judges of the Higher Court emphasised at the same time that they saw a probable cause against the suspect on the basis of the evidence that was referred to them by the Rwandan prosecution authorities.

1. Recent Decisions on Extradition Requests At this point, it is worthwhile to discuss more recent decisions on extradition requests from Rwanda, since they might be of importance for the future assessment of such requests by German and other domestic courts. In 2008, the decision by the Court in Frankfurt was in line with other decisions by courts from national jurisdictions concerning over 40 extradition requests of key genocide suspects residing in Europe, including Belgium, Denmark, Finland, France, Switzerland, the Netherlands, and the United Kingdom.21 The main reason regularly stated for denying Rwandan extradition or referral requests in these decisions, as well as in decisions by the ICTR, is the position pertaining to witnesses. Witnesses were reported to have been threatened and even killed when testifying in genocide cases in Rwanda. In other instances, cases were reported in which indictments were issued to witnesses, especially after providing for exculpatory evidence in genocide trials, for ‘divisionism’ or for promoting ‘genocidal ideology’, a term laid down in Rwandan law, which was widely used by the national government, inter alia

20

ICTR, Trial Chamber, The Prosecutor v. Yussuf Munyakazi, ICTR-97-36-R11bis, Decision of 28 May 2008, available at: http://www.unictr.org/Portals/0/Case/English/Munyakazi/decisions/080 528.pdf (accessed on 22 November 2011). Following an appeal by the ICTR Prosecutor, the ICTR upheld two out of three rulings by the Trial Chamber as well as the disposition, ICTR, Appeals Chamber, The Prosecutor v. Yussuf Munyakazi, ICTR-97-36-R11bis, Decision of 8 October 2008, available at: http://www.unictr.org/Portals/0/Case/English/Munyakazi/decisions/081008.pdf (accessed on 22 November 2011). 21

Jürgen Schurr, Green Light: Sweden to Rwanda Genocide Extradition, International Justice Tribune 139 (7 November 2011), available at: http://www.rnw.nl/international-justice/article/greenlight-sweden-rwanda-genocide-extradition (accessed on 21 November 2011); see for an overview ECtHR, Ahorugeze v. Sweden, Judgment of 27 October 2011, paras. 62–75, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 25 November 2011).

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for silencing undesirable voices.22 The courts found that the mere concern of potential defence witnesses about facing mistreatment or prosecution in Rwanda might prevent them from testifying and was likely to jeopardize the equality of arms. It was believed that the defendant would be at a disadvantage, vis-à-vis the prosecution when it comes to presenting evidence and examining witnesses.23 Furthermore, detention conditions in Rwanda and especially the possible application of life imprisonment in isolation were seen to constitute an infringement of international standards. In some cases, the decisions were also based on concerns pertaining to the independence and impartiality of the Rwandan judiciary, although they were dismissed in others.24

a) The ICTR Uwinkindi Decision With the ICTR’s Uwinkindi decision25 in summer 2010, the tide might have turned, however. In its extensive decision the first instance Referral Chamber of the Tribunal in Tanzania examined the legal and technical improvements of the position of witnesses and persons extradited or transferred to Rwanda, especially fair trial guarantees, the conditions of detention, the availability and protection of witnesses, the effectiveness of the defence and the independence and impartiality of the Rwandan judiciary. It concluded that in the period since the previous decisions denying referral of cases to Rwanda, the country had “made material changes in its laws and has indicated its capacity and willingness to prosecute cases referred by this Tribunal”26 and that “the issues that concerned the previous Referral Chambers, in particular, the 22

See Filip Reyntjens, Constructing the Truth, Dealing with Dissent, Domesticating the World: Governance in Post-Genocide Rwanda, African Affairs 110 (2011), 1, 15 et seq. See also ICTR, Appeals Chamber, The Prosecutor v. Gaspard Kanyarukiga, ICTR-2002-78-R11bis, Decision of 30 October 2008, para. 26, available at: http://www.unictr.org/Portals/0/Case/English/Kanyarukiga/dicisions/081030. pdf (accessed on 30 November 2011). 23

ICTR, Appeals Chamber (note 20), paras. 37 et seq.

24

E.g., ICTR, Appeals Chamber (note 20) upheld two of the three reasons on which the decision by the Trial Chamber was based. It found, however, that the Trial Chamber had erred in concluding that Rwanda did not respect the independence of the judiciary and that the composition of the Rwandan courts did not comply with the right to a fair trial. 25 ICTR, Trial Chamber, The Prosecutor v. Jean Uwinkindi, ICTR-2001-75-R11bis, Decision of 28 June 2011, available at: http://www.unictr.org/Portals/0/Case/English/Uwinkindi/decisions/110628. pdf (accessed on 25 November 2011). 26

Ibid., para. 223.

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availability of witnesses and their protection, have been addressed to some satisfaction by Rwanda in the intervening period.”27 As a result, since the Chamber believed “that the case of the Accused, if referred, will be prosecuted consistent with internationally recognised fair trial standards enshrined in the Statute of this Tribunal and other human rights instruments,”28 it decided that there were no legal obstacles to referring the case to Rwanda.

b) The Ahorugeze Decision by the ECtHR Though not final,29 Uwinkindi decision can be seen as a landmark and was thus given “considerable weight”30 by the European Court of Human Rights (ECtHR) in a case brought against Sweden by a Rwandan citizen, where the claimant was arrested and was subsequently to be extradited to Rwanda. Taking into consideration that the standard of review applied by the ICTR “clearly set a higher threshold for transfers than the test for extraditions under Article 6 of the Convention, as interpreted by the Court,”31 the ECtHR decided that the extradition of the applicant to Rwanda for the purpose of criminal prosecutions against him “does not reveal a violation of Article 6 of the Convention.”32 It further decided that the applicant had not shown that he might, if extradited, “face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.”33 The Chamber, echoing the decision by the Referral Chamber of the ICTR in Uwinkindi, considered the changes made by Rwanda in its legal and penal institutions, for example the building of detention centres in Kigali, which according to several sources allow for a detention in compliance with international standards,34 the 27

Ibid., para. 224.

28

Ibid., para. 223.

29

The appeal is pending before the Appeals Chamber of the ICTR.

30

ECtHR (note 21), para. 127.

31

ECtHR (note 21), paras. 127 et seq.; see also ibid., para. 113; European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 32

Ibid., para. 128.

33

Ibid., paras. 84 et seq.

34

Ibid., para. 92.

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abolition of life imprisonment in isolation for defendants transferred to Rwanda from other jurisdicions,35 the immunity of witnesses from prosecution for statements made or actions taken during a trial, as well as arrangements for an additional witness protection unit under the direction of the judiciary.36 Particular weight was given to the possibility of witnesses residing outside Rwanda testifying without having to appear in person at trial, notably by giving testimony via video link.37

2. Assessment Although these decisions are made on a case-by-case basis and are not final,38 they could represent a change in the attitude of international judges towards the question of referrals and extraditions of genocide suspects to Rwanda. Currently, discussion on further amendments to Rwandan law facilitating the introduction of foreign judges into national court procedure to promote fair trial is underway, as is providing for witnesses unwilling to come to Rwanda to be interviewed in the respective countries of origin of these judges.39 With the position of witnesses and suspects in Rwanda thus potentially further improving, Onesphore R. could be one of the last genocide suspects from Rwanda to be tried in Europe under the universal jurisdiction doctrine. Given the legal and financial difficulties attached to the investigation of cases and the conduct of trials from overseas, the executive authorities in many States would be likely to make use of the possibility of extraditing their suspects to the country where the crimes were committed. It is arguably hard to assess whether trials in Rwanda abide by international standards of fair trial and human rights. It should however be remembered that the alleged improved legal situation only applies to cases which are transferred to Rwanda

35

Ibid., para. 93.

36

Ibid., para. 121.

37

Ibid.

38

At the time of writing, the request for referral to the Grand Chamber was pending.

39

F. H., Washington supports transfer of ICTR cases to Rwanda, Hirondelle News Agency, 15 October 2011, available at: http://www.hirondellenews.com/content/view/14883/26/ (accessed on 2 December 2011); see also James Karuhanga, ICTR refers first trial to Rwanda, The New Times, 29 June 2011, available at: http://www.newtimes.co.rw/index.php?issue=14671&article=42686 (accessed on 2 December 2011).

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by international courts for the purpose of genocide investigations.40 This indicates that the standard of the Rwandan judicial system generally does not stand on equal footing with that of many countries currently deliberating extradition. Furthermore, the executive branches of these countries should take into consideration that the capacity of the Rwandan judicial system might be overstrained by the most likely high number of extradited genocide suspects.41 For these reasons, it is essential that genocide cases in Rwanda be monitored closely and evaluated critically. Referrals as well as extraditions should be primarily motivated by the improvement of the Rwandan judicial system and not by the lassitude of the UN and other States in funding expensive and complicated trials at the ICTR or national court systems.42

D. Investigations by the German Federal Criminal Police Office in Rwanda

After the extradition of Onesphore R. to Rwanda was rejected, German investigators used the material provided by Rwandan authorities in the extradition request to build a case against R. in Germany. In December 2008 R. was arrested for allegations of complicity in genocide committed in the Rwandan district of Murambi in 1994. He had to be released again, however, as investigators had investigated exclusively in Europe and had not found any eye-witness of the alleged events. The only evidence collected by that time was indirect witness testimony. In May 2009 the Federal Court of Justice thus repealed the order given by the Federal Prosecutor General for provisional detention, stating that probable cause for the allegations against R. could not legally be created solely on the basis of indirect witness testimony. It was then that investigators of the Federal Criminal Police Office (Bundeskriminalamt) under the auspices of the Federal Prosecutor General set out to conduct investigations in Rwanda. In 2009, investigating teams visited Rwanda twice within a period 40 Organic Law No. 03/2009/Ol. of 26 May 2009 Modifying and Complementing the Organic Law No. 11/2007 of 16 March 2007 Concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and Other States. 41 42

Cf. Schurr (note 21).

A wikileaks cable shows that the United States which are supporting the referral of cases to Rwanda have been discussing the issue with Rwandan authorities ever since it became apparent that the ICTR would not be able to reach its prescribed goal of winding down first instance trials by the end of 2008; see F. H. (note 39).

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of six months in order to interview eye-witnesses with the support of the Rwandan authorities. The Federal Prosecutor General subsequently issued a new provisional detention order against Onesphore R. on 21 July 2010, on the grounds of which he was arrested several days later in the Frankfurt area. Three days after this the Prosecutor General indicted R. with genocide, murder and instigation of genocide and murder.

II. The Trial in Frankfurt The trial in Frankfurt started in January 2011 and was originally scheduled to last for ten months. The following section will examine two specific evidentiary and procedural issues of the trial which are very likely to recur in future international criminal trials conducted in Germany: the remote witness testimony via video link and certain problems concerning the assessment of evidence, specific to international criminal trials.

A. Video Testimony

Soon after the trial started, the judges were confronted with the first problem concerning the presentation of evidence: many witnesses who had been interviewed by the investigators were imprisoned in Rwanda. The Court requested that the Federal Office of Justice (Bundesamt für Justiz) allow for the transfer of these witnesses to Germany so that they could testify in court. The Office however denied the request stating that, due to the inhumane prison conditions in Rwanda, witnesses were likely to file a request for asylum, hence their return to Rwanda could not be guaranteed. They suggested that the witness evidence be introduced into the trial by video link.

1. Requirements Section 247a of the German Code of Criminal Procedure (CCP) (Strafprozessordnung)43 provides for the possibility of video testimony of witnesses in criminal 43

Code of Criminal Procedure (Strafprozessordnung), 7 April 1987, BGBl. I, 1074, 1319, as amended on 23 June 2011, BGBl. I, 1266.

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trials insofar “as this is necessary for establishing the truth” inter alia if “illness, infirmity, or other insurmountable impediments prevent the witness […] from appearing at the main hearing for a long or indefinite period.”44 The decision to order the testimony via video link lies within the discretion of the trial court and is only subject to a limited review by courts of higher instance.45 It has to be made by a formal court order (Beschluss), the absence of which constitutes an error of law. This decision does not have to state reasons, yet it has to name the exact alternative of Section 247a CCP on which it is based.46 Before assuming the existence of an ‘insurmountable impediment’ for a witness to appear personally, the judges have to consider all possibilities to render the personal testimony of the witness in court possible.47 This includes formal requests for referral of witnesses if a witness resides abroad.48 Where such a request is finally and justifiably denied by another State, an “insurmountable impediment […] for an indefinite period” exists.49 The same must be true if the judges cannot make the personal appearance of a witness possible because the request is finally denied by German authorities for political reasons, as was the case in the trial against R. The judges of the Higher Court in Frankfurt turned to the Federal Ministry of Justice (Bundesministerium für Justiz), trying to overturn the decision that prevented

44

This possibility was introduced into German criminal procedure with the Law for the Protection of Witnesses in Criminal Proceedings and for the Improvement of the Protection of Victims (Zeugenschutzgesetz), 30 April 1998, BGBl. I, 820. Since then Sec. 247a CCP has allowed for the examination via audiovisual means “if there is an imminent risk of serious detriment to the well-being of the witness were he to be examined in the presence of those attending the main hearing and if that risk cannot be averted in some other way […].” Sec. 247a further refers to the Sec. 251 (2), which contains the conditions for the substitution of direct testimony of a witness by reading out the minutes of a previous testimony. The other alternatives contained in Sec. 251 (2) not cited in the main text are: (No. 2) “the witness or expert cannot reasonably be expected to appear at the main hearing because of the great distance involved, having regard to the importance of his statement” and (No. 3) if “the public prosecutor, defence counsel and the defendant agree […]” (translation by the author). 45

Federal Court of Justice, Decision of 26 August 2003, reprinted in: NStZ 24 (2004), 347, para. 3.

46

Federal Court of Justice, Decision of 6 February 2008, reprinted in: NStZ 28 (2008), 21.

47

Ulrich Eisenberg, Beweisrecht der StPO (7th ed. 2011), para. 2131; see also Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), Decision of 31 October 1991, reprinted in: Strafverteidiger 12 (1992), 558. 48

For details see Eisenberg (note 47), paras. 229 et seq. and 2132.

49

Federal Court of Justice, BGHSt 46, 73.

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the witnesses from entering Germany. As this request was denied as well, the senate formally ordered on trial day 27 that examination of the witnesses by video link currently in detention in Rwanda be conducted.

2. Realisation In stating that an audiovisual broadcast of the testimony is to be provided in court, the law does not prescribe any conditions concerning its technical manifestation. According to jurisprudence, it has to be of such a quality that all parties are presented with a broad perception of the verbal and physical communications given by the witness.50 In addition, the court has to guarantee that the presiding judge is able to conduct and direct the hearing, and that all parties are enabled to unrestrictedly exercise their procedural rights.51 After having resolved some earlier technical difficulties, more than a dozen witnesses testified in their orange prison clothes from a courtroom in Kigali, where they had previously been transferred by the Rwandan authorities. Because it is more difficult for parties to get an adequate impression of the character and the non-verbal conduct of the witness and because the physical absence of the witness from the courtroom presents a limitation of the principle of the immediacy of evidence,52 it cannot be attributed the same probative value as the testimony of witnesses physically present in court.53 The judges also have to take into consideration that witnesses testifying via video link feel under less pressure than is normally created by the formal atmosphere of a courtroom as well as by the legal criminal consequences of giving false testimony in Germany.54

50

Lutz Meyer-Goßner, Strafprozessordnung: Kommentar (54th ed. 2011), Sec. 247a, para. 10.

51

Federal Court of Justice, Judgment of 15 September 1999, reprinted in: NJW 51 (1999), 3788, para. 26; Meyer-Goßner (note 50), para. 9. 52

Federal Court of Justice (note 51), para. 31.

53

Meyer-Goßner (note 50), para. 6.

54

Federal Court of Justice (note 51), para. 31; Meyer-Goßner (note 50), para. 7.

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B. Prevalence of Witness Testimony

Another procedural issue of importance in the trial against Onesphore R. was the prevalence of witness testimony over other types of evidence. There are four permissible types of evidence in a criminal trial in Germany upon which judges can base their determination of the relevant facts pertaining to the circumstances of a crime, the guilt of an accused and the possible sentence: testimony of experts and witnesses, visual inspection of objects and official documents.55 As in most international criminal trials, eye-witness evidence, widely believed to be the least reliable of the three,56 strongly prevailed in the case against Onesphore R.57 In trials examining international crimes, the factors that bring about the alleged unreliability of eyewitness evidence are strongly aggravated.58 This also became apparent observing Onesphore R.’s trial.

1. Negative Influences Firstly, although two expert witnesses in Frankfurt denied that trauma might have negatively influenced the witnesses’ memories,59 it is argued that the recollection of events is negatively affected if the person witnessed the event under a great amount of distress.60 Another factor potentially distorting the memory of witnesses is the intro-

55

The Strengbeweis-procedure, as it is known.

56

Cf. Nancy Armoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010), 14, citing a study from the United States which revealed by the use of DNA testing “that nearly 80 percent of wrongful convictions in the United States involved eyewitness error”. 57

The Nuremburg trials are to some degree an exception in this regard, see Eric Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (2005), 18 et seq. Combs (note 56) states that out of the researched tribunals, the ICTR, the Special Court for Sierra Leone and the Special Panels in East Timor, only in the latter one frequently received forensic evidence. 58 See Combs (note 56), 54: “Certain factors increase the likelihood of inaccurate testimony, and unfortunately many of these factors are at work in international criminal trials”. 59 See the summary of their testimony at the International Research and Documentation Center for War Crimes Trials (ICWC), Monitoring Report No. 13; all cited reports are available at: http://www. uni-marburg.de/icwc/monitoring/monitoringolgfrankfurt (accessed on 2 December 2011). 60 Combs (note 56), 14 et seq. (“Many Rwandan witnesses testify about massacres in which thousands of people were hacked to death in the course of hours. We cannot expect an individual who has been the target of this sort of one-on-one, brutal violence to have formed a clear and accurate memory

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duction of post-event information either by police questioning, by earlier trials or by the media. This aspect is particularly relevant for the situation at hand because the crimes under examination have already been partly examined by the ICTR and by Rwandan Gacaca courts.61 Furthermore, information might have been directly or indirectly introduced by the Rwandan authorities, since in Rwanda a certain official narrative of the 1994 genocide has been disseminated through various means.62

2. Wilful Perjury Besides these rather subtle and sometimes unknown internal reasons as to why witnesses provide false or tainted testimonies, there are many reasons why they might not want to truthfully explain in court what they have seen. As Nancy Combs has shown, there are several reasons for witnesses to wilfully give false testimony that are particularly relevant in trials examining events of the Rwandan genocide.63 In order to get a sense of the possible influences Rwandan witnesses may be subjected to, it is helpful to consider the situation in Rwanda during in the late 1990s as described by Gerard Prunier: Genocide was so intertwined with everyday life that it could be used at every turn to secure an economic advantage, to settle an old grudge or to cover one’s tracks. Many people were killed by former Interhamwe simply because they might give evidence against them. Other people quickly found out that having survived the genocide could be a profitable business. They created ‘accusation cooperatives’ which would sell their denunciations of real or of who precisely was leading the attack and what exactly that person was doing, even if the perpetrator is recognizable,” ibid., 16). 61 Details about the system of Gacaca trials cannot be provided here. For a thorough discussion of this unique form of transitional justice mechanisms see Paul Christoph Bornkamm, Rwanda’s Gacaca Courts: Between Retribution and Reparation (2012). Before the ICTR, especially the massacres at the parish of Kiziguro, which are part of the trial against R. have been examined in the case against JeanBaptiste Gatete, see ICTR (note 1), paras. 58 et seq. 62

The expert witness Gerd Hankel was inter alia questioned on this issue and stated that culture and social context are apt to influence the personal memory, see for a summary of his testimony ICWC (note 59), Monitoring Reports Nos. 7 and 8; see also Combs (note 56), 16 et seq.: “[…] the memories of international witnesses are apt be [sic] continually revised as witnesses receive information about related crimes, related prosecutions, and the overarching aspects of the conflict as a whole”. 63 Combs (note 56), 130, 165 alleges that “that there is a great deal of lying taking place at (some) international tribunals” and that “[w]illfully false testimony is, I believe, a common feature of many international trials […]”.

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supposed Interhamwe activities to those who could use such testimonies for economic or political benefit.64

The prevalence of these forces still operating in Rwanda is difficult to evaluate, but, as happened in other Rwandan genocide trials, the judges in Frankfurt were “confronted with competing claims”65 by the parties in this regard. More than half of the witnesses who have testified in Frankfurt and who were believed to provide rather incriminating testimony stated that they were afraid because they feared retaliation by friends, family, or sympathisers of the Accused.66 Some told the judges that they had previously received direct threats or had even been mistreated before their departure.67 One witness, who is currently detained in a Rwandan prison, testified that he had not been given drinking water because he had allegedly incriminated R.68 Another witness told the court that his elder brother, who had testified before the ICTR in the trial against Jean-Baptiste Gatete, had been attacked upon his return to Rwanda and had died as a result.69 The court regularly exempted witnesses from the procedural duty of disclosing their residential address publicly.70 Furthermore, witnesses from Rwanda were accommodated in unknown locations during their stay in Germany for the purpose of their testimony. Yet the presiding judge had to tell one witness who asked him to ensure the safety of his

64 Gerard Prunier, Africa’s World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe (2009), 3; also Combs (note 56), 142 states that it is not uncommon in Rwanda’s genocide trials for defendants to be “falsely accused by those who seek their posts or property or who wish retribution for some current or past wrong, real or imagined”. 65

Combs (note 56), 156.

66

Ibid., 138: “a passel of Rwandan witnesses in both ICTR trials and Rwanda’s domestic trials have been threatened, injured, or killed following their testimony. Most frequently, witnesses who fear retaliation simply refuse to testify at all, but threats and intimidation can also motivate witnesses to lie on the stand.” See for the influence of fear on witnesses that testified before the International Criminal Tribunal for the former Yugoslavia Stover (note 57), 74 et seq. 67

See e.g. the statements reported by Andreas Kraft, Töten als Bürgerpflicht, Die Tageszeitung (taz), 3 June 2011, available via: http://www.taz.de/!t27/ (accessed on 2 December 2011). See also ICWC (note 59), Monitoring Report No. 13. 68

Andreas Kraft, Wie in einem schlechten Mafia-Film, taz, 1 July 2011, available via: http://www. taz.de/!t27/ (accessed on 2 December 2011). 69 Id., Zeugen fürchten um ihre Sicherheit, taz, 17 June 2011, available via: http://www.taz.de/!t27/ (accessed on 2 December 2011). 70

According to Sec. 68 (3) Code of Criminal Procedure.

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family in Rwanda: “there is nothing we can do here.”71 When assessing the evidence, the judges have to take into account that witnesses who fear that a German court might not be able to protect them in their Rwandan neighbourhood might not disclose everything they experienced. On the other hand, several factors having the potential to influence a witness’ testimony in the opposite direction are also at play in this situation. R.’s defence lawyers frequently claimed that persons giving incriminating evidence might have been promised benefits or been placed under pressure by Rwandan authorities. The presiding judge reported that Rwandan authorities had informed the chamber that they would accompany the witnesses travelling to Frankfurt, officially in order to secure their return. The chamber declined the request and warned that the proceedings would be abated if the judges had the impression that Rwandan authorities were believed to be influencing witnesses.72 In other contexts, there have been allegations that Rwandan authorities or Tutsi survivor groups were even fabricating incriminating evidence against persons who they believed should be punished for participating in the 1994 genocide.73 Furthermore, as mentioned above, the broad and strongly criticised Rwandan laws on ‘divisionism’ (2001) and on ‘genocide ideology’ (2008) might, according to an expert witness, be instrumentalised against witnesses giving exculpatory evidence.74

71

See Kraft (note 68) (translation by the author).

72

See ICWC (note 59), Monitoring Report No. 9; this problem has also been addressed by the ECtHR (note 21), para. 110, when evaluating the investigations by Dutch investigators in Rwanda. The court found that: “the co-operation of the Rwandan judicial authorities, including on the issue of witness protection, had been exemplary and there were no indications of interference with the investigating teams or with witnesses. The officials never inquired about the witnesses or about the content of their testimonies,” see also ibid., para. 121. 73

See the excerpts from the report of defence expert Filip Reyntjens in ICTR, Trial Chamber, The Prosecutor v. Joseph Kanyabashi, ICTR-96-15-I, available at: http://www.heritagetpirdefense.org/ papers/Filip_Reyntjens_Manipulation_and_falsification_of_ICTR_Evidence.pdf (accessed on 5 December 2011). Assertions have also been made before the ICTR that people were pressured to provide false testimony, many times on behalf of the prosecution, for example a Tutsi survivors’ group called IBUKA, see Combs (note 56), 154 et seq. 74 Cf. the testimony of the expert witness Gerd Hankel summarised in ICWC (note 59), Monitoring Report No. 4; see also Reyntjens (note 22).

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3. Assessment of the Credibility of Witness Evidence Onesphore R.’s lawyers requested for the expert witness on Rwandan society and history to be present during the testimony of witnesses in order to assist the bench in assessing their credibility. The judges dismissed this motion, stating that it is the exclusive responsibility of judges to evaluate witness testimony.75 With so many different potential forces at play this seems like a very ambitious task, however, especially from a courtroom in south-west Germany.

III. Conclusion The case against R. shows that, from a legal perspective, the German court system generally seems to be capable of holding trials examing mass violence under the doctrine of universal jurisdiction. At the same time, the trial revealed the many difficulties entailed by such an endeavor. Some improvements are to be considered. First, when exmaning highly politicised situations, as it is done in Frankfurt, the judges might be well-advised to call in experts from the examined countries to help them in determining the credibility of evidence. Furthermore, it seems that the investigation authorities could have done better when collecting the evidence. Considering the fact that in an inquisitorial system it is not foreseen for the defence to conduct their own investigations, it is crucial that investigations by the Federal Prosecutor General be thorough and impartial. However, most procedural problems might only be adequately addressed if a fair and impartial trial was held in the region or in Rwanda itself. Where this is not possible, universal jurisdiction is a useful complementary tool to combat impunity, no more and no less.

75

ICWC (note 59), Monitoring Report No. 7, 2.

Torture Abroad, Consular Assistance and the Admissibility of Evidence TOBIAS THIENEL(

Introduction: The suppression particularly of terrorist crimes requires States to cooperate in the apprehension of suspects and in the gathering of evidence. Such cooperation can, however, raise serious human rights issues because, unfortunately, not all States apply the same – or indeed, appropriate – standards of due process. The case under discussion, decided by the German Federal Court of Justice,1 has brought up two such issues. The Facts: The appellant before the Federal Court of Justice was convicted of being a member of Al-Qaeda and of having supported the terrorist organisation in Pakistan and Afghanistan. He had undergone training in Afghanistan, recruited new members for the organisation, and made himself available for terrorist attacks. He had finally been arrested in Pakistan, where he was interrogated by the Pakistani military intelligence service (Inter-Services Intelligence – ISI). During these interrogations, he was beaten by ISI officers on at least one occasion. As the appellant is a German national, the ISI informed the German Federal Criminal Police Office’s local liaison officer of the appellant’s arrest. The officer declined the offer to join the investigation, but informed the German embassy in Islamabad of the arrest. The embassy dispatched a consular officer to provide consular assistance to the appellant, as provided for in Article 36 of the Vienna Convention on Consular Relations.2 The consular officer then met the appellant and discussed the (

Lawyer (Rechtsanwalt) with Weißleder Ewer, Kiel, Germany, and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1 Federal Court of Justice (Bundesgerichtshof), 3 StR 573/09 of 14 September 2010, reprinted in: Neue Juristische Wochenschrift (NJW) 64 (2011), 1523. 2

Vienna Convention on Consular Relations, 24 April 1963, UNTS 596, 261.

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situation with him. During those discussions, some of which were held in private, the consular officer asked the appellant whether he understood the charges against him, and also whether these were true or not. The appellant also volunteered information about his involvement with Al-Qaeda. The appellant later returned to Germany and was put on trial there. At the trial, the consular officer who had seen him in Pakistani custody was heard as a witness and told the court what the appellant had told him there. The appellant argued, at trial and on appeal, that this witness statement was inadmissible as evidence. The Issue of Torture: It was in no way submitted that the consular officer, or indeed any other German official, had beaten the appellant or otherwise put undue pressure on him to testify. In fact, the Federal Court of Justice found that the discussions with the officer from the German embassy had not amounted to any interrogation at all, but had rather been aimed solely at providing consular assistance to the appellant, a German citizen.3 The German statutory provision against improper compulsion during interrogations4 therefore did not apply. Moreover, the Court held, even if the provision had been applicable, it would not have rendered the information given to the consular officer inadmissible. While it was possible that a past act of ill-treatment could still weigh heavily on the mind of the person being interrogated, thus influencing his later statements to the authorities and infecting them with inadmissibility,5 such had not been the case here. The relevant discussions in Pakistan had been held in comfortable surroundings, had been conducted in German and had partly been held in private. In addition, the appellant had freely told the consular officer about his ill-treatment at the hands of the ISI, which the Court considered he would not have done had he still been under the influence of those beatings.6 The Federal Court of Justice further held that international law, in the form of Article 15 of the UN Convention Against Torture (CAT)7 and Article 3 of the

3

Federal Court of Justice (note 1), 1524.

4

Sec. 136a Code of Criminal Procedure (Strafprozessordnung), 7 May 1987, BGBl. I, 1074, as amended on 23 June 2011, BGBl. I, 1266. 5

Federal Court of Justice, BGHSt 17, 364, 367 et seq.

6

Federal Court of Justice (note 1), 1524.

7

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS 1465, 85.

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European Convention on Human Rights (ECHR),8 does not reach a different conclusion. There was no rule in either instrument, the Court held, that would require States to exclude as inadmissible any statements that had been made in a setting where acts of torture had previously taken place, i.e. in this case, to rule out any statements that had been made in Pakistani custody. In particular, the wording of the two provisions was held not to suggest that evidence which is taken lawfully, but subsequent to unlawful interrogations (in German legal parlance: Fernwirkung) is inadmissible.9 Therefore, while the statements taken by the Pakistani ISI had already been ruled out at trial,10 the witness statement by the consular officer about his later discussions with the appellant was held to be admissible. Consular Assistance and Incriminating Statements to the Consul: However, the Court itself raised an additional issue regarding the admissibility of the consular officer’s witness statement. It recognised that there might well be an issue under the right to a fair trial (Article 6 (1) ECHR) in that a recipient of consular assistance may well make incriminating statements to the consular officer who has come to his aid and who has to discuss the charges with him. Accordingly, the Court suggested, it may well be appropriate to require a consular officer to inform a citizen receiving help that any statements made to the official will be admissible in evidence in the event of any prosecution at home.11 The Federal Court of Justice did not ultimately decide this question, because this particular procedural error by the trial court and the consular officer had not been formally raised on appeal. In so holding, the Court has applied a rather strict reading of the obligation to formally raise and set out the facts of any procedural error (Section 344 (2) cl. 2 Code of Criminal Procedure12). This has been criticised in academic comments.13 Also, the European Court of Human Rights (ECtHR) has signalled its 8 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 221. 9

Federal Court of Justice (note 1), 1524.

10

Michael Heghmanns, Beweisverwertungsverbote und Fernwirkung, Zeitschrift für das Juristische Studium (ZJS) 4 (1) (2011), 98, 99. 11

Federal Court of Justice (note 1), 1525.

12

See, for a description of German law on this matter, ECtHR, Paljić v. Germany, Judgment of 1 February 2007, paras. 26 et seq. available via: http://www.echr.coe.int/hudoc (accessed on 14 October 2011). 13

See Heghmanns (note 10), 101; Ali B. Norouzi, Anmerkung, NJW 64 (2011), 1525, 1526.

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unhappiness with such extremely strict formal requirements in the past;14 it may not have been advisable for the Federal Court of Justice to dispose of an apparently valid procedural point on this basis. The Issues in International Human Rights Law: It is reasonably clear that statements obtained under torture are inadmissible as evidence, whatever their content and regardless of whether the underlying act of torture was committed by the forum State or any other.15 This rule was observed at trial in this case; the statements taken by the ISI having been excluded by the court of first instance. The more difficult issue was whether later interrogations could also have been tainted by the prior act of torture, where that act had been inflicted by a different State and no ill-treatment continued in the later interrogation. On this issue, Article 15 CAT would seem to support the holding of the Federal Court of Justice, inasmuch as that article only excludes statements “established to have been made as a result of torture.”16 This wording puts the (‘persuasive’ or ‘legal’) burden of proof on those asserting inadmissibility,17 and in so doing requires an actual link between the ill-treatment and the statement that is tendered as evidence. The question under Article 15 CAT, as under German case law, is therefore whether the statement has been brought about by torture or not, irrespective of whether the statement was made directly while acts of torture were taking place, or whether the statement came about later as a result of the suffering inflicted earlier. In this case, the German court’s treatment of the facts seems broadly plausible. It is of course entirely possible that the appellant might have feared that further ill-treatment at the hands of the ISI would ensue if he remained silent in

14 ECtHR, Paljić (note 12), para. 51: “[T]he Court considers that these [requirements] are, as a rule, anything but easy to comply with.” The Court found no violation of the ‘right to a tribunal’ in the case before it, but does not appear to have given its blessing to such strict demands generally. 15

A and Others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221, paras. 34 et seq. (per Lord Bingham of Cornhill); Hanseatic Higher Regional Court of Hamburg, El Motassadeq, Case No. IV-1/04, Judgment of 14 June 2005, reprinted in: NJW 58 (2005), 2326, 2327 et seq.; Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, European Journal of International Law (EJIL) 17 (2006), 349, 359 et seq.; see also EctHR [GC], Gäfgen v. Germany, Judgment of 1 June 2010, para. 166, available at: http://www.echr.coe.int/hudoc (accessed on 14 October 2011). 16 17

Emphasis added.

A and Others (note 15), para. 121 (per Lord Hope of Craighead); Hanseatic Higher Regional Court of Hamburg (note 15), 2328. But see, with reference to the ‘burden of producing evidence’, Thienel (note 15), 354 et seq.

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the interview with the consular officer,18 but this could not be proved, given that the interview did not actually give the appearance of an interrogation, but was rather aimed at offering consular assistance. There is a serious issue, however, as to whether the consular officer was under an obligation to inform the appellant that his prior testimony to the Pakistani ISI would not be used as evidence. Such a warning by an interrogating officer is known as an ‘enhanced warning’ (qualifizierte Belehrung) in German law, and is designed to avoid the mistaken impression on the part of the person being questioned that ‘all is lost’ anyway. In other words, an accused should not be left under the impression that he might as well tell the whole story again, having said it all before under the illicit questioning. German case law is not entirely clear as to whether such an ‘enhanced warning’ is required, but it appears that the case law is moving towards a recognition that it is.19 It is regrettable that the Federal Court of Justice has not seen fit to pass comment on this issue. The European Court of Human Rights, for its part, has only touched on this question. The case of Gäfgen v. Germany merely implies that an ‘enhanced warning’ may well remove an applicant’s status as a ‘victim’ of a violation of Article 3 ECHR, because the authorities would, in giving this warning, acknowledge the violation and remove any detrimental effects on the victim.20 This would make an ‘enhanced warning’ extremely advisable in cases where the ill-treatment was committed by the same State that is doing the questioning, inasmuch as the warning under questioning would remove the risk of the State being taken to the ECtHR for the ill-treatment 18

Heghmanns (note 10), 99.

19

See Federal Court of Justice, 4 StR 455/08, Judgment of 18 December 2008, reprinted in: NJW 62 (2009), 1427, 1428. The Court there found an obligation on the interrogators to give an ‘enhanced warning’ where the accused had in a previous interrogation not been informed of his right to remain silent (resulting in the admissibility of his earlier statements). The Court noted that a similar obligation following the use of torture had been previously denied in the case law and left open whether this should be reconsidered. This may easily be read as a suggestion that it should. 20

See ECtHR, Gäfgen v. Germany, Judgment of 30 June 2008, para. 79, available via: http://www. echr.coe.int/hudoc (accessed on 14 October 2011), where the trial court had made this acknowledgement by ruling out all the confessions of the applicant, partly because they had been obtained by inhuman and degrading treatment and partly because there had been no ‘enhanced warning’ in the following rounds of questioning. The matter did not reappear in the Grand Chamber judgment (note 15) because the applicant was held to have retained his victim status on account of the insufficient measures taken against the policemen responsible; for criticism of this holding see Berenike Schriewer, Gäfgen v. Germany Revisited, German Yearbook of International Law (GYIL) 53 (2010), 945, 950 et seq.

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inflicted earlier. This warning is, however, immaterial where that is not the case; a warning by the German consular officer would not have affected the appellant’s victim status regarding the ill-treatment by the Pakistani ISI. Most importantly, however, the Federal Court of Justice has brought up a valid point regarding the obligation of the consular officer to inform the appellant that any statements made to him would be admissible in any criminal proceedings in Germany. It is perfectly true, as the Court has pointed out, that there is a significant temptation to make incriminating statements to an official providing consular assistance.21 In fact, since consular assistance frequently involves the consulate in the arrangement of legal representation, i.e. in the search for a defence lawyer,22 it seems fair to associate the consular officer with the role of defence counsel. In the absence of indications to the contrary, therefore, there is every reason for an accused to talk to a consular officer just as he would to his lawyer. If – in other words – the consular officer fails to make clear to the accused that he is not bound by any duty of confidentiality vis-à-vis the German courts and authorities, it may be a reasonable assumption that the conversation with that officer attracts a form of legal privilege. It follows that, in such a case, the inadmissibility of evidence about statements by the accused to an official providing consular assistance would be analogous to the inadmissibility of evidence about discussions covered by lawyer-client privilege, which is covered by Article 6 ECHR.23 The duty of the consular officer to inform an accused of his actual role, and of the lack of confidentiality with respect to any German proceedings, then arises as a way of avoiding this particular expectation of confidentiality. As regards the present case, it is far from certain that an application to the European Court of Human Rights along the lines just outlined would succeed. This is because an applicant must comply with the formal requirements of an appeal to the Federal Court of Justice in order to properly exhaust domestic remedies24 – unless 21

Federal Court of Justice (note 1), 1525.

22

See Sec. 7 German Act on the Duties and Powers of Consular Officials (Gesetz über die Konsularbeamten, ihre Aufgaben und Befugnisse), 11 September 1974, BGBl. I, 2317, as amended on 17 December 2008, BGBl. I, 2586. 23 Cf. ECtHR, Khodorkovskiy v. Russia, Judgment of 31 May 2011, para. 198, available via: http:// www.echr.coe.int/hudoc (accessed on 14 October 2011). 24

Art. 35 (1) ECHR. See ECtHR, Massmann v. Germany, Decision of 4 May 2010, available via: http://www.echr.coe.int/hudoc (accessed on 14 October 2011). The appellant would also first have to

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these are excessively formalistic,25 which the Court does not readily accept. Given that the point about the duty to give an ‘enhanced warning’ had not been raised before the Federal Court of Justice in the manner prescribed by domestic law, it is therefore doubtful if the point could validly be raised in an application to the Strasbourg Court.26 For any future cases, however, the dictum of the Federal Court of Justice in this case would seem to have laid down the law. It now establishes that a consular officer has to inform a citizen receiving consular assistance that the consular service does not take the role of a defence lawyer, and that there is no relationship of strict confidentiality. It is entirely convincing that this is indeed a requirement of Article 6 ECHR.

have brought an unsuccessful constitutional complaint (Verfassungsbeschwerde) to the Federal Constitutional Court. 25

See ECtHR, Schwarzenberger v. Germany, Judgment of 10 August 2006, paras. 22, 30, 31, available via: http://www.echr.coe.int/hudoc (accessed on 14 October 2011). 26

The complaints brought before the ECtHR must first have been raised, at least in substance, before the domestic court, and (generally) in accordance with the formal requirements applicable there: see ECtHR, Civet v. France, Judgment of 28 September 1999, RJD 1999-VI, 161, para. 41.

Juridical Virgin Soil and the Well-fortified Democracy – The Annual Report on the Protection of the Constitution under International Legal Scrutiny OLIVER DAUM(

Introduction: The aim of this article is to assess the practice of the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, BfV) concerning the monitoring and subsequent publication of data related to an organisation (pro Köln) in the Annual Report of the Office for the Protection of the Constitution (BfV report) 2010. This well-established BfV practice will be scrutinised under the regimes of the International Covenant on Civil and Political Rights (ICCPR)1 and the European Convention on Human Rights (ECHR),2 Germany is a party to both treaties. The BfV has been thrown into the spotlight due to its recent implication vel non in the tracking of a neo-Nazi terror cell in Zwickau, Germany,3 and the monitoring of Members of Parliament of the political party Die LINKE.4 One delicate issue hereby arises in view of the measures employed by the BfV to fulfil its objectives. These objectives include inter alia the protection of “the free and democratic order,” in accordance with Section 3 of the Federal Act on Protection of the Constitution (BfV

( Research Associate at the Chair for Public Law, European Law and International Law at the University of Trier. 1

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171.

2

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 221. 3

Further information is available at: http://edition.cnn.com/2011/11/14/world/europe/germanyarrest/index.html (accessed on 7 March 2012). 4

Further information is available at: http://news.linktv.org/videos/spying-scandal-grips-germanpolitics (accessed on 7 March 2012).

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Act).5 The BfV has no police powers to carry out its duties, i.e. it may not stop and arrest suspects. However, the office is vested with powers to assess open sources of information as well as with powers to gather intelligence. The BfV is under the control of the Federal Minister of the Interior. It operates within the territory of Germany and is, thus, the main inland intelligence service.6 Unlike the other intelligence services, the BfV and its equivalents in the Federal States (Länder) publish an annual report to distribute the information they have gathered to the public.7 Given its mission and the wide range of measures employed in order to gather information, the

5

Federal Act on the Protection of the Constitution (Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des Verfassungsschutzes und über das Bundesamt für Verfassungsschutz), 20 December 1990, BGBl. I, 2954, 2970, as amended on 7 December 2011, BGBl. I, 2576; Sec. 3 (1) reads as follows: “Pursuant to the Federal Act on the Protection of the Constitution, a main task of the federal and Land authorities responsible for the protection of the Constitution is gathering and analyzing information on the following: 1. activities directed against the free and democratic order or against the existence or security of the Federal Republic or of one of the federal states (Länder), or intended to unlawfully hinder federal or Land constitutional bodies or their members from carrying out their official duties; 2. intelligence activities or those that endanger state security, carried out on behalf of a foreign power within the area of the territorial application of the Federal Act on the Protection of the Constitution; 3. activities in the area covered by the Federal Act on the Protection of the Constitution which – by actual, or preparations for intended, use of force – threaten the foreign interests of the Federal Republic of Germany; 4. activities within the area covered by the Federal Act on the Protection of the Constitution which are directed against the idea of international understanding, in particular peaceful co-existence.” (Translation by the Office for the Protection of the Constitution in its report 2008, 12, available at: http://www.verfassungsschutz.de/en/en_publications/annual_reports/ (accessed on 7 March 2012)). 6 Matthias Schütte, Bundesamt für Verfassungsschutz, in: Hans-Jürgen Lange (ed.), Wörterbuch zur Inneren Sicherheit (2006), 22. 7

The other two main intelligence services are the Federal Intelligence Service (Bundesnachrichtendienst, BND), which is the biggest intelligence agency, and the Federal Armed Forces Counterintelligence Office (Militärischer Abschirmdienst, MAD). The BND is directly accountable to the Federal Government of Germany. In accordance with Sec. 1 (2) Federal Intelligence Service Act (Gesetz über den Bundesnachrichtendienst), 20 December 1990, BGBl. I, 2954, 2970, as amended on 7 December 2011, BGBl. I, 2576, its central function comprises the gathering and evaluation of information about foreign countries relevant to Germany’s national security interest; hence the BND mainly operates abroad. Like the BfV, the BND is also not authorised to resort to forcible measures but employs such methods as observation, surveillance of private housing and telecommunications, the use of informants and it has the right to obtain information about financial transactions, cf. Hans-Jürgen Lange/Peter Krevert, Bundesnachrichtendienst, in: Lange (note 6), 30. The MAD is an entity within the armed forces of Germany and thus is commanded by the Federal Minister of Defence. The MAD is, so to speak, the military counterpart of the BfV, as its competence ratione materiae is comparable to those of the BfV, but restricted to the portfolio of the Ministry of Defence, Sec. 1 Federal Armed Forces Counterintelligence Act (Gesetz über den Militärischen Abschirmdienst), 20 December 1990, BGBl. I, 2954, 2977, as amended on 7 December 2011, BGBl. I, 2576, cf. Matthias Schütte, Militärischer Abschirmdienst, in:Hans-Jürgen Lange (note 6), 202.

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BfV’s practice clearly constitutes a product of the well-fortified democracy in Germany. In view of the German experience with the rise of the Nazi party in the 1920s and early 1930s, one may consider the institution of the BfV as necessary. Individuals and organisations may undertake anti-constitutional activities with the intention of abolishing or impairing the democratic system, as happened when the Nazis effectively abolished the democratic Weimar Constitution in 1933–1934. Such activities may often be undertaken within the confines of the legal system, with the consequence that criminal proceedings cannot always be instituted against them. However, the protection of the Constitution through the use of the intelligence services may also lead to the suppression of a variety of legitimate political opinions that ought to be guaranteed in a democratic system.8 This is particularly significant with regards to the BfV reports which are published annually and can have a considerable ‘chilling effect’.9 In accordance with Section 16 (2) BfV Act the BfV report provides an overview of the activities of monitored individuals and organisations (persons). Monitoring in this respect means the collection, storage and evaluation of information on persons suspected of undertaking anti-constitutional activities, pursuant to Section 3 BfV Act. Although no legal consequences are necessarily incurred upon being listed, some may experience social and even political drawbacks (since these persons are labelled as ‘extremists’ in the report). Furthermore, although the German legal system provides legal protection, judicial review of the practices of the intelligence services in Germany is perceived to be lacking in some respects and in need of improvement.10

8

Dietrich Murswiek, Neue Maßstäbe für den Verfassungsschutzbericht – Konsequenzen aus dem JF-Beschluss des BVerfG, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 24 (2006), 121, 123 et seq.; id., Der Verfassungsschutzbericht – das scharfe Schwert der streitbaren Demokratie. Zur Problematik der Verdachtsberichterstattung, NVwZ 22 (2004), 769, 771 et seq. 9

The BfV report 2010 in German language is available at: http://www.verfassungsschutz.de/de/ publikationen/verfassungsschutzbericht/ (accessed on 7 March 2012), an English summary of the BfV report 2010 is available at: http://www.verfassungsschutz.de/en/en_publications/annual_reports/ (accessed on 7 March 2012). 10 Cf. Murswiek, NVwZ 24 (2006), 121 (note 8), 121 et seq.; id., NVwZ 22 (2004), 769 (note 8), 769 et seq.; for the safeguard in the form of a parliamentary review, cf. Heinrich Amadeus Wolff, Der nachrichtendienstliche Geheimnisschutz und die parlamentarische Kontrolle, Juristen Zeitung (JZ) 59 (2010), 173.

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Pro Köln is a registered association and although it is active mostly in the field of local politics, predominantly in the city of Cologne, it is not a political party. It is noteworthy that the BfV has qualified pro Köln as a right-wing extremist organisation in all of its annual reports since 2007.11 The case of pro Köln is of particular interest because its publication is based solely on grounds of suspicion and not on proven facts. For the purposes of this article, it will be hypothetically assumed that pro Köln seeks to challenge its monitoring by the BfV and the subsequent disclosure of information in the current BfV report before the Federal Constitutional Court (Bundesverfassungsgericht).12 The BfV report 2010 reveals information about the association’s antiIslamic campaigns in March 2010 and its organisation of a European conference against minarets, which followed the Swiss referendum on this issue in November 2010.13 This article provides first an assessment of the relevant national provisions, before in the main section the current case is analysed through the application of the relevant provisions of the ICCPR and the ECHR. At this stage it should be mentioned that in domestic proceedings pro Köln is likely to rely on the right to informational self-determination (Recht auf informationelle Selbstbestimmung). In any human rights proceedings at the international level it would rather be necessary to rely on a comparable right, where the right to informational self-determination is not named as such. The exact content and description of this right of the relevant treaty may vary, but will involve the protection of the same sphere of action. However, throughout all assessments in this article, the relevant right is designated as the right to informational self-determination. The assessment of the right to informational self-determination does not preclude any possible interferences with pro Köln’s freedom of expression and the freedom of association on the domestic level and the international level since the BfV’s practice 11

BfV report 2010, 124; BfV report 2009, 135 et seq.; BfV report 2008, 133 et seq., 161, 192; BfV report 2007, 121, all available at: http://www.verfassungsschutz.de/de/publikationen/verfassungsschutz bericht/ (accessed on 28 March 2012). 12

Thereby it is presupposed that pro Köln has exhausted any potential local remedies before administrative courts. Additionally, pro Köln must be distinguished from the Bürgerbewegung pro NRW, which is a political party, even though both are referred to together in the BfV reports. In the following, the article evaluates only pro Köln. 13

On p. 124 the BfV report 2010 discloses the association’s full name, activities and any cooperation with other right-wing extremist movements in Europe.

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may have a ‘chilling effect’ on the exercise of these two freedoms. However, both interferences may be of an indirect nature, whereas the interferences with the right to informational self-determination may be of a direct character. Therefore, in terms of proximity this article deals with the possible interference with the latter right only. Assessment under German Law: This section briefly outlines the legal protection provided by the German Constitution (Basic Law)14 and the Federal Constitutional Court. First of all, the Federal Constitutional Court has derived the right to informational self-determination from the general right to protection of personality (Article 2 (1) in conjunction with Article 1 (1) Basic Law).15 Pursuant to this right, the gathering and passing on of personal data to third parties requires the individual’s consent, since he or she holds the exclusive right to his or her personal data. Otherwise there will be an interference with the right to informational self-determination. The Federal Constitutional Court initially assigned the right to informational selfdetermination solely to individuals.16 However, legal persons now appear to be encompassed ratione personae by this right, given that they are equally in danger of having their exercise of freedom violated in this respect.17 Secondly, the monitoring of the persons and the subsequent publication of the information gathered in the BfV report may constitute two separate interferences. With regards to the monitoring of persons, the conflicting positions of the BfV on achieving its objectives on the one hand, and the interests of pro Köln on the other, must be weighed and balanced. Irrespective of whether the means employed are open or covert, these may be justified in accordance with Section 8 in conjunction with Section 9 BfV Act. 14

German Basic Law (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1 as amended on 21 July 2010, BGBl. I, 944. The English version of the Basic Law is available at: https://www.btg-bestellservice.de/pdf/80201000.pdf (accessed on 7 March 2012). 15

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 65, 1, 42 et seq.

16

In this context the Federal Constitutional Court defined the term ‘personal data’ as details of the personal or material circumstances of a certain or determinable individual person, cf. id. (note 15). 17

Id., BVerfGE 118, 168, 204, reprinted in: Neue Juristische Wochenschrift (NJW) 61 (2007), 2464, 2471, para. 157; cf. Higher Administrative Court of Lüneburg (Oberverwaltungsgericht Lüneburg), Judgment of 15 May 2009, reprinted in: NJW 63 (2009), 2697; Barbara Remmert, Art. 19 Abs. 3, in: Theodor Maunz/Günter Dürig (eds.), Grundgesetz Kommentar, vol. 3 (55th rel. 2009), para. 102; Michael Sachs, § 107: Die Freiheit der Versammlung und der Vereinigung, in: Klaus Stern (ed.), Das Staatsrecht der Bundesrepublik Deutschland, vol. IV/1 (2006), 1170, 1332.

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Concerning the later publication of the gathered information, the Federal Constitutional Court stated that the disclosure of data in the reports of the Office for the Protection of the Constitution in North Rhine-Westphalia had an effect “equivalent to an encroachment on the fundamental right of communication.”18 Even if it is not yet certain whether the Federal Constitutional Court’s approach is applicable to other constitutional rights, such as the right to informational self-determination, it is likely that the Court would extend the approach.19 Thus, for the purposes of this article, it is presupposed that there has been an interference with pro Köln’s right to informational self-determination.20 Thirdly, in order to justify the interference under the Constitution, the publication in the BfV report must occur within the confines of the rule of law.21 In accordance with Section 16 (2) cl. 2 BfV Act, the office is permitted to publish (personal) data of persons who undertake activities listed in Section 3 BfV Act. Unambiguously, this is lawful in cases where there are proven facts demonstrating a person’s involvement in these activities. However, this practice may be contested in a case based solely on grounds of suspicion. Although the Federal Constitutional Court has attempted to crystallise the corresponding requirements,22 there is, as yet, no well-defined line.23 18

Federal Constitutional Court, BVerfGE 113, 63, reprinted in: NJW 59 (2005), 2912, 2914; an English translation of the Order of the Constitutional Court is available at: http://www.bundes verfassungsgericht.de/en/decisions/rs20050524_1bvr107201en.html (accessed on 7 March 2012), paras. 54 et seq. Formerly, the Federal Constitutional Court stipulated that this practice is a sole expression of opinion undertaken by the competent State authorities which results in no interference, cf. id., BVerfGE 40, 287, 292 et seq. 19

Cf. Murswiek, NVwZ 24 (2006), 121 (note 8), 128; unclear in this respect Bernadette Droste, Handbuch des Verfassungsschutzrechts (2007), 459 et seq. 20 As indicated above it is highly controversial as to which constitutional right the right to informational self-determination can be derived from, if that right as such exists for any legal person. One may argue that a legal person cannot rely on the general right to protection of personality in accordance with Art. 2 (1) in conjunction with Art. 1 (1) Basic Law, because this right extends to individuals only, see Horst Dreier, Art. 2 I, in: id. (ed.), Grundgesetz – Kommentar, vol. 1 (2nd ed. 2004), 288, para. 82. Therefore it is suggested that a legal person can rely on the general right to protection of personality pursuant to Art. 2 (1), see Dietrich Murswiek, Art. 2, in: Michael Sachs (ed.), Grundgesetz – Kommentar (4th ed. 2007), 110, para. 77, or that such a right might be located in the relevant constitutional right such as the right to property in accordance with Art. 14 Basic Law, see Remmert (note 17), para. 102. 21 22

Federal Constitutional Court (note 15).

The Constitutional Court ruled out publication when intelligence provides only a possible suspicion of activities. In contrast, a publication based on intelligence providing an actual suspicion is open for justification, Federal Constitutional Court (note 18), 2915 et seq.; in this Order the Federal

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The Court’s 2005 assessment that the practice was constitutional has not brought an end to the controversial discussion about the lawfulness of possible inclusion in the publication based merely on grounds of suspicion.24 Assessment under International Law: It remains to be seen whether the assessment under international law, especially international human rights law, leads to a different conclusion. In general, whether or not pro Köln enjoys protection under international human rights standards requires an evaluation of the level of the protection of the right to informational self-determination, if such a right exists at all, and a further evaluation of its application to legal persons under the ICCPR and the ECHR. In this respect, the ICCPR includes a duty to protect data as part of the right to privacy, in accordance with Article 17 (1) ICCPR. This provision must be read in conjunction with Article 17 (2) ICCPR, which obliges the State parties to provide adequate legal protection against “interferences or attacks.”25 For instance, the State parties are obliged to take positive action to prevent any misuse of the data of the beneficiaries of this right by both State authorities and private parties.26 Furthermore, in 1988 the Human Rights Committee (CCPR), in its General Comment No. 16, clarified the content of the duty of data protection. It stated that this duty binds the State parties to regulate by law the “gathering and holding of personal information on

Constitutional Court also employed the principle of proportionality instead of a mere review for arbitrariness as was the case previously. 23

Murswiek, NVwZ 24 (2006), 121 (note 8), 123.

24

Id., NVwZ 22 (2004), 769 (note 8), 769 et seq.; against the illegality of the reporting on grounds of suspicion cf. Droste (note 19), 457 et seq. It may be of further interest that the content of the report, especially the subjects mentioned therein, is determined by a reference of Sec. 16 (2) cl. 1 BfV Act to Sec. 3 (1) BfV Act. This cross-reference is now stressed to the extent that the prerequisites of the monitoring, in accordance with Sec. 8 BfV Act, which equally refers to Sec. 3 (1) BfV Act, shall apply to the publication as well, thus rendering reporting merely on grounds of suspicion lawful. This conclusion is misleading because, inter alia, intelligence measures in accordance with Sec. 8 BfV Act constitute a less restrictive interference than being published, in accordance with Sec. 16 (2) cl. 2 BfV Act, in an openly accessible report and labeled as ‘quasi-extremist’ on grounds of suspicion. 25

This section’s evaluation does not address any interference with pro Köln’s “right of protection to correspondence” under Art. 17 (1), (2) ICCPR through the employment of State surveillance measures; in this regard cf. Manfred Nowak, United Nations Covenant on Civil and Political Rights – CCPR Commentary (2nd ed. 2005), Art. 17, para. 48. 26

Ibid., Art. 17, para. 23.

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computers, databanks and other devices.”27 In addition, the State parties have “to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law.”28 That this is constrained to “a person’s private life” might provide a clear signal that legal persons do not fall within the ambit of this right. With regards to the ICCPR’s scope ratione personae, Article 2 (1) ICCPR states that only “individuals” are protected by the rights provided for in the Covenant. This serves as a strong indication that associations are not equally entitled to enjoy Covenant rights. In practice, the CCPR has ruled out any possibility that corporations (as they are legal persons) could submit complaints on their own behalf because legal persons as such have no standing before the CCPR and thus may not rely on any guarantees contained in the ICCPR.29 This conclusion must differ in cases where a legal person claims an interference with its own rights and simultaneously an interference with the rights of its individuals.30 The CCPR has likewise stated in Singer v. Canada that an interference with a company’s right to freedom of expression is “inalienably linked to the person” behind the company. Thus the statement of the CCPR implies that an interference with a company’s right is inevitably accompanied by an interference with an individual’s right, prompting the company’s standing before the CCPR.31 In the present case it is only pro Köln as a legal person whose rights may have been interfered with. The BfV report provides information about the association’s activities but it does not refer to any individual’s personal data. Since there is no interference with the right to privacy of the association’s members when the BfV report 27 CCPR, General Comment No. 16, The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17), para. 10, available at: http://www. unhchr.ch/tbs/doc.nsf/%28Symbol%29/23378a8724595410c12563ed004aeecd?Opendocument (accessed on 7 March 2012). 28

Ibid.

29

Id., A Newspaper Publishing Company v. Trinidad and Tobago, Comm. No. 360/89, UN Doc. CCPR/C/36/D/360/1989 (1989); id., A Publication and Printing Company v. Trinidad and Tobago, Comm. No. 361/89, UN Doc. A/44/40 (1989), 309. 30 Sarah Joseph/Jenny Schultz/Melissa Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary (2005), 69, para. 3.12. 31

CCPR, Singer v. Canada, Comm. No. 455/91, UN Doc. CCPR/C/51/D/455/91 (1994), para. 11.2.

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mentions the association as such, pro Köln is not entitled to bring a claim before the CCPR. At first glance the decision in Singer v. Canada must be applauded, since it seems to broaden the scope ratione personae of the Covenant rights. Nevertheless, this ruling has not since led to any company or legal person per se being given standing at the CCPR. As the applicant company in Singer v. Canada consisted of only one individual, it seems doubtful whether the approach taken by the CCPR could realistically be extended to cases involving more than one individual.32 Moreover, the CCPR’s findings may appear misleading in situations where there has been a factual interference with the company’s rights but not with the individuals’ right, as in the case at hand. To conclude, the duties imposed on the State parties pursuant to Article 17 (1) and (2) ICCPR are rather rough-textured.33 On top of this there is no indication that legal persons are equally protected by the Member States’ duty of data protection. Therefore the ICCPR can only be relied upon to protect the personal data of individuals. Under the ECHR State parties have an obligation to protect the addressee’s right to “respect for private life” pursuant to Article 8 (1) ECHR, which likewise must be read in conjunction with Article 8 (2). As stated above, the Federal Constitutional Court and the Human Rights Committee have thus far hesitated to vest every legal person with a right to informational self-determination, although their reasoning may vary. As a general rule, however, the European Court of Human Rights (ECtHR) appears to assign ECHR rights to legal persons.34 The ECtHR considers inter alia the nature of the legal personality, the nature of the activities undertaken, and the independence from State authorities in order to recognise a non-governmental organisation under Article 34 ECHR.35 In a prominent judgment the ECtHR elucidated “the right to respect for the home,” stipulating that “the time has come to hold that in certain circumstances the rights guaranteed by 32

Joseph/Schultz/Castan (note 30), 69, para. 3.14.

33

Lee A. Bygrave, Data Protection Pursuant to the Right to Privacy in Human Rights Treaties, International Journal of Law and Information Technology 6 (1998), 247, 253. 34

Art. 34 ECHR reads as follows: “The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. 35

Jens Ladewig, Europäische Menschenrechtskonvention – Handkommentar (3rd ed. 2011), Art. 34, para. 11.

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Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises.”36 One may presuppose that Article 8 ECHR already ‘primarily’ protected a company’s head office, and that “the time ha[d] come” to extend this protection to further include “a company’s registered office, branches or other business premises.” In light of Article 34 ECHR the statement of the ECtHR can be expounded to indicate that the provision now provides a broad protection for a company at all sites of business activity. Therefore it can be stressed that the rights under Article 8 ECHR, especially the right to informational self-determination, also protect companies or legal persons in general. There is at least a strong indication that legal persons are protected by Article 8 since the ECHR is “a living instrument which must be interpreted in the light of present-day conditions.”37 In this respect, the ECtHR has already stated that an individual’s ‘private life’ even encompasses “activities of a professional or business nature.”38 This means that a legal person is protected in its specific fields of activity, such as business or political activities. Therefore one is not skating on thin ice in considering that pro Köln, as a registered association, constitutes a non-governmental organisation which may, at least to a certain extent, rely on the right to informational self-determination under Article 8 ECHR. Unlike the CCPR, the Strasbourg jurisprudence has dealt with the right to informational self-determination on several occasions, thus establishing a wide range of case-law on this issue. This section will elaborate on the issues firstly relating to any interference through the monitoring of data and possible justification thereof and secondly, the issue arising with regard to the publication of pro Köln’s data.39 As stated above, in order to gather and evaluate information the State authorities access open 36 ECtHR, Société Colas Est and Others v. France, Judgment of 16 April 2002, RJD 2002-III, 105, para. 41. 37 Ibid.; in the affirmative Thilo Marauhn/Konstantin Meljinik, Kapitel 16: Privat- und Familienleben, in: Rainer Grote/Thilo Marauhn (eds.), EMRK/GG – Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (2006), 744, 798, para. 67. 38 ECtHR, Niemitz v. Germany, Judgment of 16 December 1992, Series A, No. 251-B, para. 29; ECtHR [GC], Amann v. Switzerland, Judgment of 16 February 2000, RJD 2000-II, 201, para. 65. 39

This section does not assess the potential issue as to whether the State party neglects its obligation to provide adequate access to stored data in order to refute, change or delete it. Copied files handed out to subjects, exercising their right to access, can and have been redacted, but this is beyond the scope of this paper. This obligation has been read out of Art. 8 ECHR by the ECtHR for instance in Gaskin v. United Kingdom, Judgment of 7 July 1989, Series A, No. 160, para. 41.

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sources of information in accordance with Section 8 (1) cl. 1 BfV Act. The office also employs measures of State surveillance, such as confidential sources, surveillance, video and audio recordings, and interception of correspondence, mail and telecommunications, pursuant to Section 8 (2) cl. 1 in conjunction with Section 9 BfV Act. In this context the ECtHR has ruled that it is irrelevant for the purposes of Article 8 ECHR whether the data collected stems from public or undisclosed private sources.40 The ECtHR has made it unmistakably clear that the gathering and evaluation of information from open sources constitutes an interference with Article 8 ECHR if it is done systematically.41 With regard to the publication of data, the ECtHR in an important judgment stated that “both the storing and release of such information, which were coupled with the refusal to allow Mr. Leander [the applicant] an opportunity to refute it, amounted to an interference with his right to respect for private life as guaranteed by Article 8 § 1.”42 This passage does not clearly state whether the storage and the release of information as such amounts to an interference, or whether this only applies when the affected person is denied the opportunity to refute the information.43 In 2003 the Court clarified its position in Peck v. United Kingdom. In this case the applicant, in a state of distress, attempted suicide in a public street during the night by cutting his wrists. At the time this occurred he was being monitored by a close circuit television camera which was run by a private security firm. Although the actual attempt itself was not recorded, footage depicting the preceding events and their aftermath, along with still images taken from the footage, were broadcasted and distributed by State authorities nationwide. Thereby, the applicant had been partially unmasked and was readily identifiable to his family, friends, neighbours and colleagues. The Court stated that this disclosure amounted to a serious interference with his right to private life.44

40 European Commission on Human Rights, Tsavachidis v. Greece, Report of 28 October 1997, para. 47, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 7 March 2012); for the employment of State surveillance measures cf. ECtHR, Klass and Others v. Germany, Judgment of 6 September 1978, Series B, No. 26, para. 41; id., Malone v. United Kingdom, Judgment of 2 August 1984, Series A, No. 82, para. 64. 41

Id., Rotaru v. Romania, Judgment of 4 May 2000, RJD 2000-V, 61, para. 43.

42

Id., Leander v. Sweden, Judgment of 26 March 1987, Series A, No. 116, para. 48.

43

Bygrave (note 33), 261.

44

ECtHR, Peck v. United Kingdom, Judgment of 28 January 2003, RJD 2003-I, 123, paras. 62 et seq.

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In the present case, first of all, it can be assumed that the State authorities employed covert intelligence methods in order to monitor pro Köln’s activities. But even if the State authorities only accessed open sources of information, since it was carried out in a systematic manner, this practice amounts to an interference with pro Köln’s rights under Article 8 ECHR. Secondly, the later publication of this data constitutes a further interference with pro Köln’s right to informational self-determination. Regarding the justification of both the monitoring and the subsequent publication of pro Köln’s data, these two interferences will be dealt with separately. An interference may be justified in accordance with Article 8 (2) ECHR if it is: in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The relevant test for the State parties to comply with contains, inter alia, a requirement for the existence of an appropriate legal basis, pursuance of a legitimate aim as listed in Article 8 (2) ECHR and compliance with the principle of proportionality. One essential element of the requirement of an appropriate legal basis is that it must be: formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.45

In this context the ECtHR is well aware that this foreseeability, in the context of interception of communications (as based on Section 8 (2) cl. 1 BfV Act), cannot be construed as strictly as it is in instances where national rules place restrictions on the conduct of individuals.46 However, in the case Rotaru v. Romania, the ECtHR focused on the ‘quality’ of the national legal basis. The relevant legal basis must provide regulations concerning the “limits on the age of information held or the 45 Id., Silver v. United Kingdom, Judgment of 25 March 1983, Series A, No. 61, para. 88; id., Sunday Times v. United Kingdom, Judgment of 26 April 1979, Series A, No. 30, para. 49. 46

Id., Malone v. United Kingdom (note 40), para. 67: “In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly.” This statement indicates that the ECtHR is more likely to approve the foreseeability of the threshold to monitor a person in the first place pursuant to Sec. 3 (1) in conjunction with Sec. 4 (1) cl. 3 BfV Act.

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length of time for which it may be kept.”47 In the case at hand, Section 12 (3) cl. 2 BfV Act provides that person-related data must be deleted after ten or fifteen years, depending on why the data was collected (Section 3 (1) BfV Act), unless otherwise instructed by the Head of the Office for the Protection of the Constitution. The time limit for storage in accordance with Section 10 (3) BfV Act can, however, vary to the extent the BfV deems to be necessary. Therefore it can be held that the resulting uncertainty of the time limit of storage, and as to which provision shall be applicable or even the ambiguity of Section 12 (3) cl. 2 BfV Act alone leads to serious doubts as to whether the provisions are in compliance with the ECHR. One may even go further and argue that no safeguards in respect of the time limit of storage of data vis-à-vis legal persons exists within the BfV Act at all. Sections 10 (3) and 12 (3) cl. 2 BfV Act rule out the storage of person-related data. The term ‘personrelated data’ is defined in Section 3 (1) Federal Data Protection Act (Bundesdatenschutzgesetz).48 Pursuant to Section 27 BfV Act this definition, restricting the application of person-related data solely to individuals, is employed within the meaning of the safeguards of the BfV Act. In conclusion it seems that registered associations such as pro Köln are not encompassed by the safeguards of the BfV Act, and it thus fails to provide an appropriate legal basis in this regard. Coming now to the justification of the publication of pro Köln’s data in the BfV report 2010, the relevant legal basis is provided by Section 16 (2) cl. 2 BfV Act. Although the ECtHR has consistently emphasised that it will not scrutinise whether the requirements of national law have been met,49 it did so in Amann v. Switzerland.50 This may prove to be vital because, as stated above, the adequacy of the national legal basis to publish a person’s information in the BfV report on grounds of mere suspicion is contested.51 However, concerning the legitimate aim, one may properly invoke 47

Id., Rotaru v. Romania (note 41), para. 57.

48

Federal Data Protection Act (Bundesdatenschutzgesetz), 14 January 2003, BGBl. I, 66, as amended on 14 August 2009, BGBl. I, 2814, Sec. 3 (1) reads as follows: “‘Personal data’ shall mean any information concerning the personal or material circumstances of an identified or identifiable natural person (‘data subject’)”. 49

Birte Siemen, Datenschutz als europäisches Grundrecht (2006), 143.

50

ECtHR [GC], Amann v. Switzerland (note 38), para. 75.

51

Murswiek, NVwZ 22 (2004), 769 (note 8), 769 et seq.

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national security interests or public safety concerns, and this is what is usually relied upon in the justification of State surveillance measures.52 In this respect it is noteworthy, however, that whereas the report only accused pro Köln of having organised a European conference against minarets, terror-related activities have been the subject of most of the aforementioned ECtHR jurisprudence in relation to State surveillance.53 Of greater importance in the case of justification of the publication is the assessment of the principle of proportionality. This assessment primarily consists of a weighing between the public and private interests involved, or in the words of the ECtHR “the interference must, inter alia, correspond to a ‘pressing social need’ and be ‘proportionate to the aim pursued’.”54 Even in cases of disclosure of data, the ECtHR grants the State parties a wide margin of appreciation in “striking a fair balance between the relevant conflicting public and private interests.”55 The Court has also noted that this margin might be influenced by the seriousness of the interests at stake and by the gravity of the interference.56 This article cannot supply a comprehensive view of the conflicting interests in the case at hand. However, some indication shall be given in both directions. For instance, on behalf of the State authorities, the BfV report intends to “inform the public and increase general awareness about anti-constitutional activities in the Federal Republic of Germany,”57 therefore pursuing an authentic public interest in respect of Article 8 (2) ECHR. The BfV report is a useful political tool in a democratic system and is thus encompassed by the margin of appreciation, since there are lawful activities directed against the democratic system which cannot be made subject to such judicial means as criminal proceedings. In this respect, the long-standing practice of publication of the BfV report in its current form since 1969 must also be taken into 52

ECtHR, Rotaru v. Romania (note 41), para. 48, cf. Siemen (note 49), 159 et seq.

53

On the contrary, the BfV report 2010, 57, expressly states that there were no right-wing terrorist structures in Germany in 2010 at all. 54

ECtHR, Silver v. United Kingdom (note 45), para. 97; id., Moustaquim v. Belgium, Judgment of 18 February 1991, Series A, No. 193, para. 43; id., Open Door and Dublin Well Woman v. Ireland, Judgment of 29 October 1992, Series A, No. 246-A, para. 70. 55

Id., Peck v. United Kingdom (note 44), para. 77.

56

Ibid.

57

Translation from BfV report (English version) 2008, 16, available at: http://www.verfassungs schutz.de/en/en_publications/annual_reports (accessed on 2 April 2012).

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account.58 A further important point is that the passage in the BfV report on pro Köln specified that it was based on grounds of suspicion. It was made clear that the association was not being labelled as ‘extremist’ on the basis of proven facts.59 In previous publications the sections covering proven extremists and cases based only on the grounds of suspicion were combined, making it difficult to distinguish between them. The current report, however, expressly states that pro Köln is included on the grounds of suspicion, thus constituting a less intense interference than those included based on proven facts. On the other hand, although the interference might be less intense as compared to the cases which are included in the publication based on proven facts, pro Köln still may incur serious social and factual disadvantages, thus the interference has a strong negative effect on the registered association. This is particularly important because pro Köln is active in the field of local politics, where an actor necessarily depends on its reputation within the population. Furthermore, one may take into consideration that pro Köln is not charged with terror-related activities but with the organisation of anti-Islamic conferences. Interestingly, in Peck v. United Kingdom the ECtHR underlined that the applicant was “not charged with, much less convicted of, an offence.”60 This issue arose because the applicant’s attempted suicide was broadcast on the BBC’s ‘Crime Beat’ television programme, used for detection and prevention of crime. From this statement it cannot only be construed that the ECtHR considers, in the context of the necessity test, whether the requirements of the national legal basis are met. With respect to the principle of proportionality the form of accusation is also relevant. Therefore the fact that pro Köln is a case on grounds of suspicion rather than a case on proven facts must be taken into account in the context of the weighing of opposing interests. It is further worth mentioning that pro Köln has been listed in every BfV report since 2007 and has always been a case based on the grounds of suspicion. Thus far no factual evidence has arisen which could lead to their inclusion based on proven facts.

58

This fact was taken into consideration by the European Commission of Human Rights, Tom Lundvall v. Sweden, Decision of 11 December 1985, DR 45, 131. 59

BfV report 2010, 22.

60

ECtHR, Peck v. United Kingdom (note 44), para. 79.

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This analysis of the jurisprudence of the ECtHR does not intend to show that the monitoring and publication of pro Köln (or indeed of any individual or legal person) in the BfV report may not be justified under the ECHR. The purpose of this article is rather to draw attention to the questions raised by the BfV’s current practice concerning its compatibility with the ECHR which have not yet been satisfactorily answered. This is particularly urgent with regards to individuals and even Members of Parliament who are monitored and have their details published by the BfV authorities, although this is not to minimise the possible implications for the rights of organisations such as pro Köln. In conclusion, the lawfulness of the BfV’s practice of monitoring pro Köln and the subsequent publication of the amassed information appears doubtful in the light of the ECHR. However, so far there has not been any comparable case dealt with by the ECtHR. In fact as yet, the legal importance of the BfV practice from the ECHR perspective seems to have been underestimated. Thus, it is the author’s intention to hereby step on ‘juridical virgin soil’ to illustrate that international human rights do not halt at national borders but diversify into national legal systems, and may indeed conflict with long-standing practices.

Legal Protection of Biotechnological Inventions – Patentability of Extraction of Precursor Cells from Human Embryonic Stem Cells (ECJ) FELIX MACHTS(

Introduction: The German Federal Court of Justice (Bundesgerichtshof) asked the ECJ to give a preliminary ruling on the meaning of ‘human embryo’, which is not defined in Directive 98/44/EC on the legal protection of biotechnological inventions.1 The ECJ dealt with the stages of development of the human embryo and the ensuing levels of protection under EU law. The Facts: Oliver Brüstle, a German neuropathologist and expert in stem cell research, holds a patent filed on 19 December 1997 concerning isolated and purified neural precursor cells produced from human embryonic stem cells and processes of their production used to treat neurological diseases. It is claimed that this could play a particular role in the treatment of patients suffering from Parkinson’s disease.2 The Federal Patent Court of Germany (Bundespatentgericht) ruled the patent invalid on 5 December 2006 on application by Greenpeace e.V. insofar as it covers processes for obtaining precursor cells from human embryonic stem cells.3 The ruling was based on

( The Author is doctoral candidate of Prof. Andreas Zimmermann (University of Potsdam) and has worked as research assistant at the Walther-Schücking-Institut for International Law in Kiel until 2011. 1

EC Directive 98/44 of 6 July 1998, OJ 1998 L 213, 13 (Directive 98/44/EC).

2

ECJ, Case C-34/10, Brüstle v. Greenpeace e.V., Judgment of 18 October 2011, para. 16, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=111402&pageIndex=0&doc lang=EN&mode=doc&dir=&occ=first&part=1&cid=720159 (accessed on 14 December 2011). 3

German Federal Patent Court (Bundespatentgericht), 3 Ni 42/04 of 5 December 2006, reprinted in: Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 12 (2007), 1049.

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Sections 22 (1), 21 (1), 2 (1) and (2)(i)(c) German Law on Patents (Patentgesetz) (PatG).4 On appeal, the German Federal Court of Justice (Bundesgerichtshof) referred three questions to the ECJ for interpretation under Article 267 (1)(b)(iii) TFEU.5 Since it found that the meaning of ‘human embryo’ from Section 2 (2) PatG and Section 8 (1) German Law on the Protection of Embryos (Embryonenschutzgesetz) (ESchG)6 had to be interpreted in conformance with the corresponding meaning in Article 6 (2) Directive 98/44/EC, it firstly asked the ECJ to define the term ‘human embryo’ in Article 6 (2)(c) of the Directive.7 This had to be defined in relation to a number of questions, including the stage of development after fertilisation of the ovum at which protection is necessary under the provision. It was further asked whether the provision covered unfertilised human ova into which a mature human cell nucleus had been supplanted or whose division and further development had been stimulated by parthenogenesis. Finally the ECJ was requested to determine whether the provision included stem cells obtained from human embryos in the blastocyst stage, which was essential to Dr. Brüstle’s patent. Secondly, it asked the ECJ to interpret the expression “uses of human embryos for industrial or commercial purposes,” in particular as to whether this includes any commercial exploitation for the purposes of scientific research. Thirdly, it asked whether technical teaching is also to be considered unpat4

Law on Patents (Patentgesetz), 16 December 1980, BGBl. I, 1, as amended on 24 November 2011, BGBl. I, 2302. Sec. 2: “1. Patents may not be granted for inventions whose commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation. 2. In particular, patents shall not be awarded for: [...] (3) uses of human embryos for industrial or commercial purposes; [...] The application of points (1) to (3) shall be governed by the appropriate provisions of the Law on the Protection of Embryos”; Sec. 21: “1. A patent shall be revoked (Section 61) if it appears that: (1) the object of the patent is not patentable pursuant to Sections 1 to 5”; Sec. 22 (1): “A patent shall be declared void on pallication (Section 81) if it appears that one of the grounds set out in Section 21 (1) applies, or that the scope of the protection conferred by the patent has been extended” (translation by the author). 5

Federal Court of Justice (Bundesgerichtshof), Xa ZR 58/07 of 17 December 2009, reprinted in: Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 3 (2010), 212. 6

Law on the Protection of Embryos (Embryonenschutzgesetz), 13 December 1990, BGBl. I, 2746, as amended on 21 November 2011, BGBl. I, 2228. 7 Art. 6 Directive 98/44/EC: “1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation. 2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable: [...] (c) uses of human embryos for industrial or commercial purposes”.

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entable if the use of human embryos is necessary precondition for the application of the teaching and necessitates the prior destruction of human embryos. Following the Advocate General’s opinion of 10 March 2011,8 the ECJ’s Grand Chamber delivered its judgment on 18 October 2011. It held, firstly, that the concept of ‘human embryo’ must be understood in a wide sense.9 As soon as fertilised, any human ovum is regarded as a ‘human embryo’ if that fertilisation is such as to commence the process of development of a human being.10 A non-fertilised human ovum into which the cell nucleus from a mature human cell has been implanted and a nonfertilised human ovum whose division and further development have been stimulated by parthenogenesis must also be classified as a ‘human embryo’.11 As regards stem cells obtained from a human embryo at the blastocyst stage, the ECJ found that it is for the referring national court to ascertain, in the light of scientific developments, whether these are capable of commencing the process of development of a human being and are therefore included within the concept of ‘human embryo’.12 Secondly, scientific research entailing the use of human embryos cannot be distinguished from industrial and commercial use and therefore cannot access the protection of patent law. The patentability of uses of human embryos for industrial or commercial purposes is not prohibited under the Directive where it concerns the use for therapeutic or diagnostic purposes which are applied to the human embryo and which are useful to it.13 An example of this is to correct a malformation and improve the chances of life.14 Thirdly, the production of neural precursor cells presupposes that stem cells are obtained from a human embryo at the blastocyst stage while the removal of a stem cell entails the destruction of that embryo.15 Therefore, an invention involving the

8

ECJ, Case C-34/10, Brüstle v. Greenpeace, Opinion of Advocate General Bot of 10 March 2011, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=81836&pageIndex=0& doclang=EN&mode=req&dir=&occ=first&part=1&cid=723096 (accessed on 14 December 2011). 9

ECJ (note 2), para. 34.

10

Ibid., para. 35.

11

Ibid., para. 38.

12

Ibid., para. 37.

13

Ibid., para. 46.

14

ECJ, Press Release No. 112/11 of 18 October 2011, 2, available at: http://curia.europa.eu/jcms/ upload/docs/application/pdf/2011-10/cp110112en.pdf (accessed on 14 December 2011). 15

ECJ (note 2), para. 48.

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production of neural precursor cells is excluded from patentability.16 The ECJ’s findings are in line with a recent decision of the European Patent Office (EPO) of 2008, in which it favoured a wide interpretation of the concept of ‘human embryo’ in patent law.17 The Issue of Uniform Interpretation: Agreeing with the Advocate General’s opinion, the Grand Chamber decided that the concept of ‘human embryo’ had to be interpreted uniformly within the European Union.18 With no express reference to national law for the purposes of interpretation in the Directive concerning the concept of ‘human embryo’, European Union law normally has to be given an independent and uniform interpretation.19 The ECJ’s findings are in line with its previous jurisprudence.20 The concept of ‘human embryo’ is neither defined in the Directive nor is national law referenced as regards its meaning. In addition, the object and purpose of the Directive is to remove obstacles to trade and to the functioning of the internal market by a harmonisation of the rules for the legal protection of biotechnological inventions. As a result the ECJ found that the concept – designated as an autonomous concept of European Union law – had to be interpreted in a uniform manner.21 This conclusion has been criticised.22 It is submitted that the concept of ‘human embryo’, which is not specified in the Directive, was left deliberately open to and to be interpreted by national provisions, such as Section 8 (1) ESchG.23 For example, not all EU Member States qualify the extraction of human-embryonic stem cells as a violation of

16

Ibid., para. 49.

17

EPO, Use of Embryos/WARF, Decision of the Enlarged Board of Appeal of 25 November 2008, Official Journal EPO 5/2009, 306, para. 22. 18

ECJ (note 2), para. 25.

19

Ibid.

20

ECJ, Case C-327/82, Ekro, 1984 ECR 107, para. 11; id., C-287/98, Linster, 2000 ECR I-6917, para. 43; id., C-5/08, Infopaq International, 2009 ECR I-6569, para. 27; id., C-467/08, Padawan, Judgment of 21 October 2010, para. 32, available at: http://curia.europa.eu/juris/document/document.jsf? text=&docid=83635&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid= 723617 (accessed on 14 December 2011). 21

ECJ (note 2), paras. 26 et seq.

22

Lena Laimböck/Hans-Georg Dederer, Der Begriff des „Embryos“ im Biopatentrecht – Anmerkungen zu den Schlussanträgen von GA Yves Bot vom 10. März 2011, Rs. C-34/10 – Brüstle – zugleich eine Kritik des Kriteriums „Totipotenz“, GRUR, Internationaler Teil 60 (2011), 661, 663. 23

Ibid.

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the ordre public or public morality.24 Several States participating in the proceedings before the ECJ expressed the view that is was to be left to national legislation to determine the concept of ‘human embryo’.25 Interestingly, the European Court of Human Rights (ECtHR) has been keen to avoid determination of highly ethically and politically disputed questions, e.g. it carefully sidestepped a determination of the exact moment the right to life under Article 2 (1) European Convention for the Protection of Human Rights (ECHR)26 applies in abortion cases.27 The Issue of Wide Interpretation: The Grand Chamber concurred with the Advocate General’s opinion stating that the concept of ‘human embryo’ be construed widely.28 The ECJ drew this conclusion by highlighting in Recital 16 in the Directive’s preamble the value of the fundamental principles safeguarding the dignity and integrity of the person in regard of the use of biological material originating from humans and the promotion of investment in the field of biotechnology, EU legislature intended to exclude any possibility of patentability where respect for human dignity could be affected.29 The ECJ’s line of argument has been criticised as being circular since, to find an answer to the question whether the concept of human embryo protects certain early stages of organisms, its systematic and teleological approach presupposes that a human embryo is a human being and therefore necessarily entitled to the rights emphasised in the preamble.30 Critics also maintain that, as a general rule, exceptions from patentability (Patentierungsausschlüsse) must be interpreted narrowly.31 A narrow interpretation can also be derived from Article 27 (2) Agreement

24

Ibid., 666, with further references in footnote 78.

25

Thomas Groh, EuGH: Keine Patentierbarkeit von Erfindungen unter Verwendung von embryonalen Stammzellen, Europäische Zeitschrift für Wirtschaftsrecht 22 (2011), 908, 911. 26 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 27

ECtHR, Vo v. France, Judgment of 8 July 2004, RJD 2004-VIII, 67; see Groh (note 25), 911.

28

ECJ (note 2), para. 34.

29

Ibid.

30

Groh (note 25), 911.

31

Laimböck/Dederer (note 22), 663; EPO, T 315/03 – 3.3.08, Transgenic animals/HARVARD, Decision of Technical Board of Appeal 3.3.8 of 6 July 2004, Official Journal EPO 1/2006, 15, 44, para. 7.4; see also ECJ (note 8), para. 112.

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on Trade Related Aspects of Intellectual Property Rights (TRIPS),32 which is specifically applicable because of the precedence (Geltungsvorrang) of TRIPS over EU secondary law.33 It is expected that the question of compatibility of Article 6 (2)(c) of the Directive as interpreted by the ECJ with Article 27 TRIPS will – since the Grand Chamber did not deal with Article 27 TRIPS specifically – be dealt with within the legal framework of the World Trade Organization (WTO).34 Stem Cells Obtained at the Blastocyst Stage: The ECJ did not make a finding as to whether stem cells obtained in the blastocyst stage were to be included within the concept of ‘human embryo’.35 It found that it did not have the competence to make a finding on the development potential of such stem cells and therefore shifted competence to national courts.36 It is for the referring court to ascertain, in the light of scientific developments, whether the stem cells are capable of commencing the process of development of a human being and therefore to be included within the concept of ‘human embryo’.37 The ECJ considered the analysis of the question whether an organism is capable of commencing the process of development of a human being to be decisive – leaving undecided whether it would be sufficient to have the potential ability to ‘reprogramme’ an impotent cell.38 This renders it possible that a legally obtained patent may later become illegal as a result of new scientific findings.39 It is now for the German Federal Court of Justice to deal with this issue.

32 Agreement on Trade Related Aspects of Intellectual Property Rights, 15 April 1994, UNTS 1869, 299 (TRIPS). 33

ECJ, Case C-431/05, Merck Genéricos v. Produtos Farmacêuticos, 2007 ECR I-7001, para. 35; id., Case C-428/08, Monsanto Technology LLC v. Cefetra BV and Others, Judgment of 6 July 2010, para. 72, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=80491&pageIndex= 0&doclang=en&mode=doc&dir=&occ=first&part=1&cid=725039 (accessed on 14 December 2011); Laimböck/Dederer (note 22), 663. 34

Joachim Feldges, EuGH: Weite Auslegung des Begriffs „menschlicher Embryo“, GRUR 113 (2011), 1104, 1108. 35

ECJ (note 2), para. 37.

36

Ibid.

37

Ibid.

38

See Feldges (note 34), 1107.

39

Ibid.

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Ethical Implications and Projected ‘Brain Drain’: The concept of ‘human embryo’ has been interpreted differently in the various European States.40 This is mainly because the underlying ethical concept of protection granted to the early stages of human life as well as the level of leeway given to progressive scientific research in disease control has not been uniform.41 The Directive evidences this stage of diversity since States could not agree on a definition of the concept of ‘human embryo’.42 The ECJ has adopted control over patent law and has significantly limited the States’ autonomy over promoting national concepts to find a balance between the protection of early life and scientific research into disease control. Its reasoning is based, inter alia, on the necessity to harmonise the rules on the definition of ‘human embryo’ in patent law to protect the internal market.43 As Brüstle points out, the flip side of such enhanced protection could lead the European scientific research market to lose its ability to compete with American and Asian States. Such research could be carried out in those areas where the level of early life protection is less strict, making the American and Asian markets more economically viable.44 The legal situation concerning embryonic stem cells in Germany is particularly paradoxical; while their production is prohibited, their import, under specific circumstances, is not (Section 4 Law on Stem Cells (Stammzellengesetz)45).46 In sum, although it entails significant economic consequences for embryonic stem cell research, the ECJ’s ruling is limited to the sphere of patent law.47 Notably, it does not address highly disputed controver40 Rather strict are Poland and Germany; more liberal e.g. Austria, Switzerland and Great Britain; see also Laimböck/Dederer (note 22), 663, with further reference in footnote 38. 41

Ibid.

42

Ibid.

43

ECJ (note 2), para. 27.

44

This risk is laid out in more detail by Professor Oliver Brüstle in an interview with the Deutsche Presse Agentur (dpa) 18 October 2011, available at: http://www.wdr.de/wissen/wdr_wissen/themen/ gesundheit_medizin/aktuell/2011/10/interviewbruestle.php5 (accessed on 8 December 2011). Feldges rebuts this pessimistic view by referring to the importance of the European market and projects instead that scientists will shift focus from embryonic to adult stem cells, see Feldges (note 34), 1109. 45 Law on Stem Cells (Stammzellengesetz), 28 June 2002, BGBl. I, 2277, as amended on 14 August 2008, BGBl. I, 1708. 46

Michael Quaas/Rüdiger Zuck, Medizinrecht (2nd ed. 2008), paras. 94 et seq.; Oliver Brüstle, Interview with the Kompetenznetzwerk Stammzellforschung NRW, available at: http://www.stamm zellen.nrw.de/fileadmin/media/documents/presse/Interview_KNW_110509-1.pdf (accessed on 8 December 2011). 47

See Groh (note 25), 911.

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sies surrounding the point at which the human embryo is entitled to hold rights, nor does it concern itself with the lawfulness and limits of stem cell research.

The European Convention on Human Rights’ Limitations in the Dismissal of Non-clergy Church Employees PATRICK BRAASCH(

Introduction: Church employers, probably more than other employers, are particularly sensitive about their employees’ conduct in their private lives. If they fail to comply with the moral views, teachings and beliefs of the church, their employers may try to terminate the employment relationship. Employees, on the other hand, will invoke the legal protection of their private life. In three cases against Germany, the European Court of Human Rights (ECtHR) outlined the limitations imposed by the European Convention on Human Rights1 (ECHR) to the dismissal of non-clergy church employees. Facts of the Cases: In Obst v. Germany,2 Schüth v. Germany3 and Siebenhaar v. Germany,4 the ECtHR had to decide on three cases of dismissal of non-clergy church employees.5 Mr. Obst grew up in the Mormon faith and had worked for the Mormon Church as director of public relations for Europe since 1986. In 1993, he confided to (

Research Associate and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 2 ECtHR, Obst v. Germany, Judgment of 23 September 2010 (final), available via: http://hudoc. echr.coe.int/hudoc/ (accessed on 23 January 2012). 3

ECtHR, Schüth v. Germany, Judgment of 23 September 2010 (final), available via: http://hudoc. echr.coe.int/hudoc/ (accessed on 23 January 2012). 4

ECtHR, Siebenhaar v. Germany, Judgment of 3 February 2011 (final), available via: http://hudoc. echr.coe.int/hudoc/ (accessed on 23 January 2012). 5 See also Christoph Grabenwarter, Kirchliches Arbeitsrecht und Menschenrechtskonvention, in: Christine Hohmann-Dennhardt et al. (eds.), Grundrechte und Solidarität – Festschrift für Renate Jaeger (2011), 639; id., Das kirchliche Arbeitsrecht vor dem Europäischen Gerichtshof für Menschenrechte, Kirche und Recht (KuR) 17 (2011), 55.

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his pastor that his marriage was deteriorating and that he had had an extramarital relationship with another woman. On his pastor’s advice, Mr. Obst sought spiritual guidance from his superior, who turned down the request and informed him a few days later of his dismissal without notice. He was subsequently excommunicated by way of an internal disciplinary procedure. Mr. Schüth had been an organist for a parish of the Roman Catholic Church since the mid-1980s. He separated from his wife in 1994 to live with another woman. After his marital children spoke in kindergarten about their father going to have another, non-marital child with the second woman, the parish dismissed him for having committed adultery and bigamy. Ms. Siebenhaar was employed as a kindergarten teacher and manager by a Protestant parish from 1997. After learning from an anonymous source that she was a member of another non-Christian religious community at which she offered primary lessons in the teachings of that community, the Protestant Church dismissed her without notice. The German labour courts ultimately dismissed each applicant’s claim for wrongful dismissal, holding their misconduct to be sufficient grounds for termination. The Federal Constitutional Court (Bundesverfassungsgericht) declined to decide on the employees’ constitutional complaints. The domestic legal background: All the labour courts based their judgments on a leading case by the Federal Constitutional Court handed down on 4 June 1985.6 In this judgment, the Federal Constitutional Court held that the churches’ constitutional guarantee of autonomy7 allowed them to contractually impose special loyalty obligations on all their employees. Such obligations could include compliance with religious values and norms even in private life. Violations of such obligations can, according to the Federal Constitutional Court, amount to compelling reasons justifying the termination without notice under Section 6268 of the Civil Code9 (CC).10 By 6 Federal Constitutional Court (Bundesverfassungsgericht), 2 BvR 1703/83, 2 BvR 1718/83, 2 BvR 856/84 of 4 June 1985, BVerfGE 70, 138, reprinted in: Neue Juristische Wochenschrift (NJW) 39 (1986), 367. 7

Article 140 of the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. I, 1, as amended on 21 July 2010, BGBl. I, 944, in conjunction with Article 137 (3) cl. 1 of the Weimar Constitution (Weimarer Reichsverfassung), 11 August 1919, RGBl., 1383 which states: “Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all”. 8 Section 626 (1) CC states: “The service relationship may be terminated by either party to the contract for a compelling reason without complying with a notice period if facts are presented on the basis of which the party giving notice cannot reasonably be expected to continue the service relationship

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virtue of their constitutional autonomy, it was left to the respective church’s discretion to determine if an employee’s conduct amounted to a violation of loyalty obligations. The domestic courts were bound by the church’s assessment if the obligations imposed on an employee were not incompatible with the German ordre public.11 However, in applying Section 626 CC, the courts had to weigh the employee’s interests against those of the church employer, attaching particular importance to the self-concept of the respective church.12 In the cases at hand, the labour courts held that Mr. Obst and Mr. Schüth had violated the principles of the respective church employer’s religious and moral precepts which did not conflict with the fundamental principles of the German ordre public. Consequently, they accepted the respective church employer’s position that the dismissals had been necessary to maintain credibility, which would otherwise be under threat if they had to continue employing the applicants. With respect to Ms. Siebenhaar, the labour courts held that there was a legitimate reason for the Protes-tant Church to fear that her engagement in the other religious community would influence her work in the kindergarten, putting the church’s credibility at risk. As she could no longer be counted on to respect her employer’s ideals, the necessity of dismissal outweighed her interest in keeping her employment. The ECtHR’s Judgments: In all three cases the ECtHR began its assessment by observing that the applicants were not complaining against immediate State action but rather the State’s failure to protect their various human rights13 against encroachment by private actors.14 Even though all three respondent churches hold the status of to the end of the notice period or to the agreed end of the service relationship, taking all circumstances of the individual case into account and weighing the interests of both parties to the contract”. 9

German Civil Code (Bürgerliches Gesetzbuch), 18. August 1896, in the version promulgated on 2 January 2002, BGBl. I, 42 and 2909; BGBl. I 2003, 738, as amended on 27 July 2011, BGBl. I, 1600 (CC). 10

The same reasoning is applicable, mutatis mutandis, to the ordinary termination with notice according to Section 622 CC and Section 1 of the Protection Against Dismissal Act (Kündigungsschutzgesetz), 25 August 1969, BGBl. I, 1317, as amended on 26 March 2008, BGBl. I, 444. 11

Federal Constitutional Court (note 6), BVerfGE 70, 138, 167 et seq.

12

Id., BVerfGE 70, 138, 168 et seq.

13

The applicants Schüth and Obst filed their complaints under Article 8 ECHR, the applicant Siebenhaar under Article 9 ECHR. 14 ECtHR, Schüth v. Germany (note 3), para. 54; id., Obst v. Germany (note 2), para. 40; id., Siebenhaar v. Germany (note 4), para. 37.

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corporations under public law, they do not exercise any public function.15 Yet, as the ECHR imposes the responsibility to protect the effective exercise of Convention rights on its parties, States may – subject to a wide discretion – be obliged to take positive action to enforce human rights in private relationships, taking into consideration and balancing the rights and interests of the affected parties.16 Thus, in the cases at hand the ECtHR had to examine whether the German courts had properly balanced the applicants’ rights under Articles 8 and 9 ECHR against the respective churches’ rights under Articles 9 and 11 ECHR, affording the applicants sufficient protection.17 The ECtHR reiterated that religious communities traditionally exist within organised structures whose autonomy and protection from unjustified State interference constitute the core of Article 9 ECHR. In particular, the freedom of religion under Article 9 ECHR generally prohibits any kind of judgment by States on the validity of religious belief or its expression.18 The ECtHR went on to observe that all of the domestic courts based their judgments on the prevailing judgment by the Federal Constitutional Court of 4 June 198519 establishing that the German labour law had to be applied with due respect to both the churches’ constitutional autonomy and such loyalty obligations imposed on their employees that reflected their religious values and did not violate the ordre public.20 According to the ECtHR, these fundamental principles of the legal order included the Convention rights and, in particular, the right to respect for private life.21 With respect to Mr. Schüth, the ECtHR accepted the domestic courts’ finding that the applicant had violated his obligations towards the Roman Catholic Church. 15

Ibid.

16

ECtHR, Schüth v. Germany (note 3), paras. 55 et seq.; id., Obst v. Germany (note 2), paras. 41 et seq.; id., Siebenhaar v. Germany (note 4), paras. 38 et seq. 17

ECtHR, Schüth v. Germany (note 3), para. 57; id., Obst v. Germany (note 2), para. 43; id., Siebenhaar v. Germany (note 4), para. 40. 18

ECtHR, Schüth v. Germany (note 3), para. 58; id., Obst v. Germany (note 2), para. 44; id., Siebenhaar v. Germany (note 4), para. 41. 19

See supra, note 6.

20

ECtHR, Schüth v. Germany (note 3), para. 60; id., Obst v. Germany (note 2), para. 46; id., Siebenhaar v. Germany (note 4), para. 43. 21 ECtHR, Schüth v. Germany (note 3), para. 60. No corresponding reference to the Convention rights was made in Obst v. Germany (note 2) and Siebenhaar v. Germany (note 4).

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However, it found that the domestic courts had failed to balance the church’s interest in dismissing Mr. Schüth because of this violation on the one hand, against the applicant’s rights under Article 8 ECHR on the other.22 Instead, they had simply asserted that the church’s interest in dismissing the applicant prevailed over the applicant’s interest in keeping his job. In particular, the domestic courts had accepted without question the church’s claim that his functions as an organist and choirmaster were so closely connected to the church’s proclamatory mission that the parish could not continue the employment of the applicant without losing its credibility. Instead of reproducing the church’s opinion, the ECtHR required a more thorough examination of the nature of the employment.23 Furthermore, the ECtHR held that by signing the employment contract which imposed obligations limiting his right to respect for his private life, the applicant could not be assumed to have unequivocally agreed to a life of abstinence in the event of separation or divorce.24 Finally, also considering that the applicant, due to his profession and his confession, had only limited opportunities of finding another job, the ECtHR found that the domestic courts had failed to properly weigh the applicant’s rights against those of the church.25 Following the ECtHR’s judgment, the applicant’s request for resumption of the domestic proceedings was dismissed as inadmissible by the Düsseldorf Higher Labour Court.26 This raises the scepter of Article 41 ECHR, according to which the ECtHR can afford just satisfaction to the injured party where national law does not ensure complete reparation. Considering the case of Mr. Obst, the ECtHR agreed that the domestic courts had taken account of all relevant aspects of the case and thoroughly balanced the conflicting interests of the applicant and the Mormon Church.27 Moreover, it held that the loyalty obligations which the applicant had agreed to when signing his employment contract were not unacceptable considering the fact that the applicant was familiar with the importance of marital fidelity to the church, and the fact that his exposed 22

ECtHR, Schüth v. Germany (note 3), para. 67.

23

Ibid., para. 69.

24

Ibid., para. 71.

25

Ibid., para. 74.

26

Higher Labour Court of Düsseldorf (Landesarbeitsgericht Düsseldorf), Judgment of 4 May 2011, Case no. 7 Sa 1427/10, reprinted in: Europäische Grundrechte-Zeitschrift (EuGRZ) 38 (2011), 417. The appeal to the Federal Labour Court (Bundesarbeitsgericht) is pending (Case no. 2 AZR 570/11). 27

ECtHR, Obst v. Germany (note 2), para. 49.

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function required increased duties of loyalty towards the church.28 Referring to the domestic courts’ finding that the dismissal amounted to a measure necessary to preserve the church’s credibility and taking into account the particular nature of the applicant’s employment, the ECtHR accepted that the church had not been obliged to choose a less severe penalty.29 Thus, the Court held that in giving more weight to the interests of the Mormon Church than to those of the applicant, Germany had not violated Article 8 ECHR.30 As regards Ms. Siebenhaar, the Court agreed with the domestic courts’ finding that considering her engagement in another non-Christian religious community, she could no longer be counted on to respect her employer’s ideals.31 It observed that the domestic courts had considered all relevant aspects of the case and undertaken a thorough balancing exercise regarding the conflicting interests.32 The Court held that the dismissal had been necessary to preserve the church’s credibility, and that the loyalty obligations imposed on the applicant were acceptable.33 Thus, the domestic courts’ finding that the church’s interest in dismissing the applicant outweighed her interest in keeping her job did not violate Article 9 ECHR.34 Comment: The three cases, which have received considerable attention in Germany,35 deal with a core area of church labour law, the principle of loyalty. Most employers are interested in imposing certain loyalty obligations on their employees who are protected by national and international human rights binding on the respective State. German labour law, in accordance with Article 8 ECHR, determines that as a principle, employers cannot regulate their employees’ conduct in their private lives. What distinguishes the cases of church employees is that unlike regular employers 28

Ibid., para. 51.

29

Ibid., para. 48.

30

Ibid., para. 52.

31

ECtHR, Siebenhaar v. Germany (note 4), para. 44.

32

Ibid., para. 45.

33

Ibid., para. 46.

34

Ibid., paras. 47 et seq.

35

A symposium entitled “Strasbourg and the Church Labour Law” was held at the University of Bochum on 31 January 2011. For reports see Isabella Risini/Benjamin Böhm, Straßburg und das kirchliche Arbeitsrecht, Deutsches Verwaltungsblatt (DVBl.) 126 (2011), 878, and Boris Bullmann/Tim Husemann, Tagungsbericht – Offene Fachtagung “Straßburg und das kirchliche Arbeitsrecht,” KuR 17 (2011), 134.

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churches can claim the protection of competing human rights for themselves, namely the Article 9 ECHR freedom of religion in conjunction with the Article 11 ECHR freedom of association. Completely ignoring the churches’ interests in regulating their employees’ conduct in their private lives and categorically denying them the right to dismiss employees because of private misconduct would amount to a violation of Article 9 ECHR. Thus, States and their legal systems have to balance these competing legally protected interests in a matter compatible with the standards of the ECHR. The jurisprudence developed by the Federal Constitution Court in 1985 affords churches the right to determine the loyalty obligations necessary for the credibility of their proclamatory missions, subject, however, to the requirements of the ordre public. Subsequently, the domestic courts determine whether or not the loyalty obligations established by a church employer have been violated and, balancing the competing interests of the church employer and the employee, the employee’s dismissal is justified. The ECtHR generally accepted this regime and confirmed that the churches’ interest in regulating their employees’ conduct in their private lives generally falls within the scope of protection afforded by Article 9 ECHR. However, it pointed out that the domestic court’s practice of weighting the respective interests often fell short of the standard required by the ECHR. Rather than onesidedly referring to the churches’ legitimate interests in dismissing employees having violated their loyalty obligations, the courts must also take account of the protection afforded to the employee by the ECHR. As a result, German church employers and labour courts will have to put more effort into substantiating the reasons and motives for dismissing church employees and take their concrete position into account. Some commentators argue that this was not required by the Federal Constitutional Court’s 1985 leading judgment. The ECtHR did not, however, overrule this initial judgment. The Federal Constitutional Court already established the requirement of thoroughly balancing the respective interests and legal rights of the church employer and the employee.36 As some courts failed to 36

Federal Constitutional Court (note 6), id., BVerfGE 70, 138, 168 and 170 et seq. See also Christoph Grabenwarter, Das kirchliche Arbeitsrecht (note 5), 55, 56, 66; Hermann Weber, Comment on the Federal Constitutional Court’s judgment of June 4, 1985, NJW 39 (1986), 370; Martin Henssler, § 626 BGB, in: Franz Jürgen Säcker/ Roland Rixecker (eds.), Münchener Kommentar zum BGB (5th. ed. 2009), para. 231; Gregor Thüsing, Grundrechtsschutz und kirchliches Arbeitsrecht, Recht der Arbeit (RdA) 56 (2003), 210, 212 et seq.

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properly apply the regime established by the 1985 judgment and the Federal Constitutional Court refused to intervene in those instances, the ECtHR correctly reminded all German courts of this important aspect.37 In a recent judgment,38 the Federal Labour Court decided that the dismissal of a head physician at a Catholic hospital due to the physician’s second marriage (which the Catholic Church considers to be bigamy) was not justified as the hospital continued to employ other remarried head physicians. The three judgments handed down by the ECtHR have only dealt with individual cases and do not contain or combine into a comprehensive catalogue of relevant factors to be considered by domestic courts. Furthermore, the ECtHR does not address how close an employee must be to a church’s proclamatory mission that a church can legitimately impose special loyalty obligations on him or her. If a church’s credibility is accepted as the interest to be protected by the right to dismiss employees based on conduct in their private lives, one might assume that the line must be drawn between two groups: clergy members, staff involved in religious services and senior managers on the one hand, and e.g. maintenance staff on the other. In its Schüth judgment, the ECtHR criticised the domestic courts for not assessing the applicant’s proximity to the church’s proclamatory mission. It did not, however, present its own assessment and left many questions unanswered. Accordingly, church employers and labour courts now face some uncertainty trying to implement the ECtHR’s requirements. It can be assumed, however, that the ECtHR will be presented with further cases of dismissed church employees.39 Hopefully, the ECtHR will be able to concretise its standards to provide for a higher degree of predictability in its decisions. Critics argue that the scrutiny applied by the ECtHR is too strict, turning it into a regular appellate court rather than a focused human rights court.40 Indeed, considering the workload the ECtHR is facing, it appears questionable whether the ECtHR 37

See Jacob Joussen, Die Folgen des Mormonen- und des Kirchenmusikerfalls für das kirchliche Arbeitsrecht in Deutschland, RdA 64 (2011), 173, 176 et seq.; Martin Plum, Kirchliche Loyalitätsobliegenheiten im Lichte der Rechtsprechung des EGMR, Neue Zeitschrift für Arbeitsrecht (NZA) 28 (2011), 1194, 1200. 38

Federal Labour Court, Judgment of 8 September 2011, Case No. 2 AZR 543/10 (unpublished).

39

Proceedings against other State parties to the ECHR are still pending, including the case of Fernández Martínez v. Spain, application No. 56030/07 concerning the non-renewal of the teaching contract of a married priest following the publication of a newspaper article revealing his membership of an optional celibacy movement. See press release ECHR 248 (2011) of 22 November 2011, available via: http://hudoc.echr.coe.int/hudoc. 40

See Christoph Grabenwarter (note 36), 68 et seq.

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should get involved in a thorough examination of balancing considerations of national labour courts. If, however, the judgments at hand prompt national labour courts to improve the standard of their balancing exercises, the ECtHR may be able to scale down its level of scrutiny.

The German Strike Ban for Public Officials in Light of the Jurisprudence of the European Court of Human Rights: The Judgments of the Administrative Court of Düsseldorf of December 2010 and the Administrative Court of Kassel of July 2011 SARA JÖTTEN( AND JULE SIEGFRIED((

Introduction: Until very recently, the denial of the right to strike of German teachers with the status of public officials (Beamte) seemed to be a well established principle in German jurisprudence. However, two decisions by German administrative courts rendered in 2010 and 2011 start to call this view into question, drawing on the European Convention on Human Rights1 (ECHR), specifically on the interpretation of the freedom of association taken by the European Court of Human Rights (ECtHR) in Strasbourg. Judgment by the Administrative Court of Düsseldorf: The Administrative Court of Düsseldorf (Verwaltungsgericht Düsseldorf) took the lead in its judgment of 15 December 2010,2 nullifying a disciplinary order addressed to a teacher who had participated in a token strike. The teacher, the claimant in this case, is a public official. In January and February 2009 the claimant participated in token strikes during her working hours. On account of this, in August 2009 the defendant instituted disciplinary proceedings ( ((

Dr. iur. Law Clerk at the Hanseatic Higher Regional Court, Hamburg. Research Assistant at the Walther-Schücking-Institute for International Law at the University of Kiel.

1

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 221. 2 Administrative Court of Düsseldorf (Verwaltungsgericht Düsseldorf), 31 K 3904/10.O of 15 December 2010, available at: http://www.justiz.nrw.de/nrwe/ovgs/vg_duesseldorf/j2010/31_K_3904_10_ Ourteil20101215.html (accessed on 26 November 2011).

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against the claimant. These were followed by a disciplinary order in May 2010 imposing a fine of € 1,500 on the claimant who took legal action in the Administrative Court of Düsseldorf in June 2010 requesting to annul the disciplinary order. Although the Administrative Court of Düsseldorf eventually found in favour of the claimant, it held that the claimant committed a malfeasance by going on token strike and thereby missing service without the supervisor’s consent (Section 47 (1) Beamtenstatusgesetz,3 Section 62 (1) cl. 1 Landesbeamtengesetz Nordrhein-Westfalen4). Pointing to previous decisions of the Federal Constitutional Court (Bundesverfassungsgericht) and the Federal Administrative Court (Bundesverwaltungsgericht),5 the Administrative Court of Düsseldorf reached the conclusion that the claimant’s behaviour was neither justified nor excused by the freedom of association derived from Article 9 (3) German Basic Law (BL) (Grundgesetz).6 The Court reasoned that this provision does not provide public officials with the right to strike since his or her pay is defined by law and not by collective agreements. The Court stressed that the ‘traditional principles of the professional civil service’ (Article 33 (5) BL – hergebrachte Grundsätze des Berufsbeamtentums) prohibit public officials from going on strike. The Court explained that this assessment persists with regard to European human rights law. In respect of the freedom of association under Article 11 ECHR, which also covers the right to strike, the Court referred to the recent ECtHR decisions Demir and Baykara v. Turkey7 and Enerji Yapi-Yol Sen v. Turkey.8 The Administrative Court of Düsseldorf argued that restrictions to the freedom of association under Article 11 (2) ECHR, while admissible with regard to certain categories of public officials, are not 3

Federal Act on the Status of Public Officials (Gesetz zur Regelung des Statusrechts der Beamtinnen und Beamten in den Ländern), 17 June 2008, BGBl. I, 1010, as amended on 5 February 2009, BGBl. I, 160. 4 North Rhine-Westphalian Act on Public Officials (Beamtengesetz für das Land NordrheinWestfalen), GVBl. 2009, 224. 5

E.g. Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 8, 1, 17; id., BVerfGE 44, 249, 264; Federal Administrative Court (Bundesverwaltungsgericht), BVerwGE 73, 97, 102; id., BVerwGE 69, 208, 212 et seq. 6 German Basic Law (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944. 7 ECtHR [GC], Demir and Baykara v. Turkey, Judgment of 12 November 2008, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 12 October 2011). 8

Id., Enerji Yapi-Yol Sen v. Turkey, Judgment of 21 April 2009, available via: http://www.echr.coe. int/ECHR/EN/hudoc (accessed on 12 October 2011).

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acceptable concerning public officials in general. The Court suggested that by generally negating the public official’s right to strike the German civil service law could run contrary to the ECtHR’s interpretation of the Convention. However, the Düsseldorf Court pointed out that this does not affect the German law’s validity. The Court abnegated the possibility of an interpretation of the German civil service law in light of international law. The opposing principles of the civil service system which are guaranteed in the German BL mark the limit of the scope of interpretation. Nonetheless, the Court found that the defendant was prevented from enacting a disciplinary order by the ECHR and the jurisprudence of the ECtHR. The Court asserted that recent jurisprudence9 shows that, as well as the abstract strike ban, the individual sanction of a public official going on strike is to be qualified as an interference with rights protected under Article 11 ECHR. In view of the Court, with regard to German law such a sanction cannot be justified under Article 11 (2) ECHR. It argued that a disciplinary order is only “necessary in a democratic society” in terms of Article 11 (2) ECHR if its legal basis restricting the right to strike clearly and narrowly relates to certain categories of public officials only. As previously stated this is not the case in German law as the German legislator notably did not limit the denial of the right to strike to certain categories of public officials executing sovereign power in the narrow sense. Also, the Court notes, teachers do not fall within any category referred to in Article 11 (2) ECHR (armed forces, police and administration of the State). The defendant had to take this violation of the ECHR into account when enacting disciplinary sanctions against the claimant by way of the permissible methods of interpretation and thus had to come to the conclusion that the disciplinary proceedings should have been discontinued. Judgments by the Administrative Court of Kassel: On 27 July 201110 the Administrative Court of Kassel (Verwaltungsgericht Kassel) went even further in two 9

ECtHR, Karaçay v. Turkey, Judgment of 27 March 2007, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 12 October 2011); id., Kaya and Seyhan v. Turkey, Judgment of 15 September 2009, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 12 October 2011); id., Çerikci v. Turkey, Judgment of 13 July 2010, available via: http://www.echr.coe.int/ECHR/EN/ hudoc (accessed on 12 October 2011). 10

Administrative Court of Kassel (Verwaltungsgericht Kassel), 28 K 574/10.KS.D and 28 K 1208/ 10.KS.D of 27 July 2011, available at: http://www.lareda.hessenrecht.hessen.de/jportal/portal/t/s15/ page/bslaredaprod.psml?&doc.id=JURE110017085%3Ajuris-r01&showdoccase=1&doc.part=L (accessed on 8 March 2012).

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judgments. It held that German public officials – with the exception of those exercising sovereign power in the sense of Article 33 (4) BL and Article 11 (2) cl. 2 ECHR – also enjoy the right to strike and, contrary to the opinion of the Administrative Court of Düsseldorf, concluded that the participation in a strike does not violate the duties of these public officials. The claimants in these two parallel cases are also teachers with the status of public officials who took part in a strike in November 2009. As a consequence they received a written note of disapproval (schriftliche Missbilligung) from their superiors against which both took legal action. The Administrative Court of Kassel ruled that the note of disapproval was unlawful as participation in the strike did not violate their duties as public officials because it was covered by their right to strike granted by Article 9 (3) BL. Like the Administrative Court of Düsseldorf before it, the Administrative Court of Kassel regarded the absolute denial of the right to strike for all public officials as a violation of Article 11 ECHR. The Court therefore also relied on Demir and Baykara v. Turkey and Enerji Yapi-Yol Sen v. Turkey. In the latter judgment, according to the Administrative Court of Kassel, the ECtHR called upon the legislator to differentiate clearly and on the basis of substantial criteria between those public servants (Beschäftigte im öffentlichen Dienst) who are granted the right to strike and those who, on the basis of Article 11 (2) cl. 2 ECHR, are not. However, according to the court, the basic understanding of the ECtHR in reaching this decision was not the (German) differentiation between public officials (Beamte) and public employees (Angestellte im öffentlichen Dienst). The Administrative Court of Kassel rejected the opinion that the German State complied with the requirements of Article 11 (2) ECHR by only prohibiting the right to strike with respect to ‘public officials as one group within the group of public servants’.11 As the same jobs are often carried out by both public officials and public employees, the Court opined that public officials cannot be differentiated from the group of public employees solely due to their function. Explicitly opposing the position of the Administrative Court of Düsseldorf, the Administrative Court of Kassel voiced its opinion that as a result of the ECtHR’s interpretation of Article 11 ECHR the ‘traditional principles of the professional civil service’ (Article 33 (5) BL) had changed. The denial of the right to strike does not 11

Compare Josef Franz Lindner, Dürfen Beamte doch streiken?, Die Öffentliche Verwaltung 64 (2011), 305 (also cited in the judgment).

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now apply to all public officials but merely to a limited group of public officials at most – those named in Article 11 (2) cl. 2 ECHR. Teachers are not among this group as they do not execute sovereign power. The Court argues that by interpreting the BL, the ECtHR’s interpretation of the ECHR has to be taken into account. The Court later made clear that it chose the interpretation of Article 33 (5) BL which brings the fundamental rights of the ECHR into full effect. Evaluation: The German legal situation had been clear until the rulings by the Administrative Courts of Düsseldorf and Kassel brought new hope for the German Education Union (GEW – Gewerkschaft Erziehung und Wissenschaft). The first judgment was already celebrated by the GEW as a trend-setting step in the right direction in their struggle against the denial of a right to strike of German Beamte.12 The Düsseldorf and Kassel judgments raise two central questions: did the courts interpret the jurisprudence of the ECtHR correctly regarding the German denial of public officials’ right to strike violating Article 11 ECHR? And furthermore, how would such a violation affect the judgment in the cases at hand? With regard to the first aspect an analysis of the relevant ECtHR jurisprudence supports the assessment that the German denial of the right to strike applying generally to public officials violates the ECHR. The ECtHR – reconsidering its previous case-law and in accordance with the jurisprudence of the Federal Constitutional Court with regard to Article 8 BL13 – has recently ruled that Article 11 ECHR encompasses in principle the right to bargain collectively14

12 GEW, Press Release of 16 December 2010, available at: http://www.gew.de/GEW_Richtungs weisender_Schritt_auf_dem_Weg_zum_Streikrecht_fuer_Beamte.html (accessed on 25 July 2011). 13 For the right to bargain collectively see Federal Constitutional Court, BVerfGE 94, 268, 283; id., BVerfGE 100, 271, 282; id., BVerfGE 103, 293, 304. For the right to strike see id., BVerfGE 88, 103, 114; id., BVerfGE 92, 365, 393 et seq. 14

The right to bargain collectively under Art. 11 (1) of people not belonging to the groups under Art. 11 (2) ECHR was first recognised in ECtHR, Demir and Baykara v. Turkey (note 7), paras. 140– 154. The Grand Chamber, ibid., para. 153, reconsidered its previous case law in light of developments in international law. In ECtHR, Demir and Baykara v. Turkey, Judgment of 21 November 2006, Joint Concurring Opinion of Judges Türmen, Fura-Sandström and Popovic, para. 1, three judges criticised that the Chamber in the Demir and Baykara Case had failed to stress the “close link between the right to form and join a trade union and the right to collective bargaining,” including the right to strike. See for a comment Charles Barrow, Demir and Bakara v Turkey: Breathing Life into Article 11, European Human Rights Law Review 15 (2010), 419.

736 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011

and to participate in strike.15 The ECtHR has also made clear that Article 11 as a whole in principle also applies to all “employees” of the State, as clearly indicated by Article 11 (2) cl. 2 ECHR.16 It had, however, failed to give much guidance to clarify the meaning of the term ‘members of the administration’ in Article 11 (2) cl. 2 ECHR. In Demir and Baykara v. Turkey the Grand Chamber noted that “municipal civil servants, who are not engaged in the administration of the State as such, cannot in principle be treated as ‘members of the administration of the State’”17 without further elaborating on the meaning of the term administration as such. It further stated that if Article 11 (2) cl. 2 ECHR applies concerning one of the three groups the restrictions are still to be construed strictly and the State has to show the legitimacy of the restriction. Therefore, even if Article 11 (2) cl. 2 ECHR is applicable, the restriction has to meet certain criteria, which exceed the test of arbitrariness.18 The ECtHR has not made clear in how far the legitimacy of this restriction differs from the test of necessity in a democratic society included in Article 11 (2) cl. 1 ECHR. In light of the ECtHR jurisprudence – although lacking clear guidance – the claimants before the administrative courts, being teachers, could rightfully be classified as not being members of the administration (as such) within the meaning of Article 11 (2) cl. 2 ECHR. Although the recent relevant jurisprudence by the ECtHR was rendered against Turkey and does therefore not make any statements with regard to the German categories of public officials and public employees which form combined the public servants,19 it may be assumed that the claimants, as teachers, are not exercising sovereign power as such. The term ‘members of the administration’ is to be interpreted narrowly as an exception, the more so than put in context with the other two enumerated groups, the armed forces and the police. The fact that in Germany the duties of public officials are in many cases, as in the case of teachers, also fulfilled by

15

ECtHR, Enerji Yap-Yol Sen v. Turkey (note 8), para. 32.

16

Id., Demir and Baykara v. Turkey (note 7), para. 96. In the Joint Concurring Opinion in the Chamber judgment (note 14), three judges even stated that it is not clear that members of the administration may not enjoy the full extend of the rights enshrined in Art. 11 ECHR. 17

Ibid.

18

Ibid., para. 97, as the Grand Chamber did not share the view taken by the former Commission.

19

Cf. Sec. 4 Federal Act on Employee Representation (Bundespersonalvertretungsgesetz), including inter alia judges.

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public employees demonstrates that they do not automatically exercise sovereign power in a narrow sense because of their status. Furthermore, the Administrative Courts of Düsseldorf and Kassel correctly conclude that the denial of the right to strike in respect of all public officials based on their status as it is in place in Germany at the moment violates Article 11 ECHR.20 This assessment derives from the following statement of the ECtHR in the Enerji Yapi-Yol Sen Case: […] si l’interdiction du droit de grève peut concerner certaines catégories de fonctionnaires […] (voir, mutatis mutandis, Pellegrin c. France [GC], n° 28541/95, §§ 64–67, CEDH 1999VIII), elle ne peut pas s’étendre aux fonctionnaires en général […] ou aux travailleurs publics des entreprises commerciales ou industrielles de l’Etat. Ainsi, les restrictions légales au droit de grève devraient définir aussi clairement et étroitement que possible les catégories de fonctionnaires concernées.21

Important for understanding the cited passage is the meaning given to the term ‘fonctionnaire’ with regard to the formation of the German administration as a whole. The term has been translated into German both with Angehöriger des Öffentlichen Dienstes22 (being referred to here as the comprehensive group of ‘public servants’) and Beamter23 (being referred to here as the limited group ‘public officials’) leading to controversial interpretations of the Strasbourg judgment with regard to German law. Lindner argues that the term has to be understood to encompass all public servants and draws the conclusion that Germany, by prohibiting not all public servants, but 20

See for this conclusion also Detlef Hensche, Der Streik im Öffentlichen Dienst, in: Wolfgang Däubler (ed.), Arbeitskampfrecht (2011), 475, 504; Katrin Löber, Beamtenstreikrecht als Menschenrecht, Arbeit und Recht (AuR) 59 (2011), 74, 76; Matthias Niedobitek, Denationalisierung des Streikrechts – auch für Beamte? – Tendenzen im europäischen und internationalen Recht –, Zeitschrift für Beamtenrecht 59 (2011), 361, 368. For a different view see Josef Franz Lindner, Streikrecht für Beamte? Eine Kritik der Demontage des Berufsbeamtentums aus aktuellem Anlass, PUBLICUS. Der Online Spiegel für das Öffentliche Recht 2 (3) (2011), 15; id. (note 11). 21

ECtHR, Enerji Yapi-Yol Sen v. Turkey (note 8), para. 32.

22

See the German translation of ECtHR, Enerji Yapi-Yol Sen v. Turkey, in: Neue Zeitschrift für Arbeitsrecht 27 (2010), 1423; Lindner (note 11); undecided Administrative Court of Osnabrück (Verwaltungsgericht Osnabrück), 9 A 1/11, 19 August 2011, paras. 17, 38, available at: http://www.dbovg. niedersachsen.de/Entscheidung.asp?Ind=0570020110000019%20A (accessed on 26 November). 23 See Klaus Lörcher, Das Menschenrecht auf Kollektivverhandlung und Streik – auch für Beamte, AuR 57 (2009), 229, 236; Achim Seifert, Recht auf Kollektivverhandlungen und Streikrecht für Beamte, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 92 (2009), 357, 362; Hensche (note 20), para. 83.

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only the public officials to strike, does not violate Article 11 ECHR. In his opinion a clear differentiation between public servants and public employees is possible by formal and substantial criteria, the latter based on the special fiduciary duty of public officials.24 An argument against Lindner’s interpretation of the relevant passage in the ECtHR’s judgment might be that the ECtHR uses the term ‘travailleurs publics’ as well in this context, thereby possibly expressing that the term ‘fonctionnaire’ does not encompass this part of the group of public servants. However, even if the term ‘fonctionnaire’ had to be understood as encompassing all public servants the German differentiation between public officials and public employees would not, as Lindner argues, comply with the requirements of Article 11 (2) ECHR. The formal and substantial criteria Lindner offers for the differentiation would not seemingly be accepted by the ECtHR. As the Strasbourg Court had already noted in Demir and Baykara v. Turkey, it chooses to differentiate by the “nature of the duties performed.”25 Later in Enerji Yapi-Yol Sen v. Turkey the ECtHR related to its judgment in Pellegrin v. France where the Court also decided that the criterion for the classification of public servants, here with regard to the applicability of Article 6 (1) ECHR, “whether established or employed under contract, was functional […] based on the nature of the employee’s duties and responsibilities.”26 Taken that criterion the formal differentiation between public officials and public employees in Germany cannot suffice as they often, e.g. in the case of teachers, fulfil the same duties.27 Finally, with regard to the second question the Administrative Court of Kassel may indeed have overstepped its competence by stating that in the light of the ECHR the ‘traditional principles of the professional civil service’ changed insofar as that now the participation in a strike may under certain circumstances be regarded as compatible with the duties of public officials. Although the Court must be joined on the merits, the Administrative Court of Osnabrück (Verwaltungsgericht Osnabrück) 24

Lindner (note 20), 16; id. (note 11), 307 et seq.

25

ECtHR, Demir and Baykara v. Turkey (note 7), para. 107, concerning the classification of members of the administration of the State. 26 27

Id., Pellegrin v. France, Judgment of 8 December 1999, RJD 1999-VIII, 207, para. 64.

For the exclusion of teachers from the strike ban see id., Enerji Yapi-Yol Sen v. Turkey (note 8), para. 32, in conjunction with id., Pellegrin v. France (note 26), para. 40. The ECtHR in Enerji Yapi-Yol Sen refers to paras. 64–67 of the case Pellegrin. Para. 66 of the case Pellegrin, however, refers to its own paras. 37–41; see also Lörcher (note 23), 241; Seifert (note 23), 376.

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rightfully pointed to the fact that in the German legal system all courts are bound by the decisions of the Federal Constitutional Court by virtue of Section 31 (1) Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).28 As the Federal Constitutional Court claims that this binding effect also relates to the supporting reasons of its decisions,29 all courts are bound by its interpretation of Article 33 (5) BL. To change this binding interpretation a judgment by the Federal Constitutional Court needs to be given. To amend the absolute strike ban for public officials an act of the legislator is thus not necessarily, as the Administrative Court of Düsseldorf and Seifert30 voiced, required.31 Concluding Remarks: Both administrative courts permitted an appeal. It therefore remains to be seen if either or both of the argumentations chosen by the courts will withstand further scrutiny. The GEW already voiced its continuing willingness to support the claimants through all instances, so judgments by the Federal Constitutional Court and eventually the ECtHR might be possible one day. A clarification of the German legal situation is highly desirable – not only in light of the ECHR but also of other regimes of international law. In this context it must be noted that various international monitoring bodies have expressed concerns about the compatibility of the present state of German law regarding the strike ban of public officials with international law.32 In the end, Germany might not evade changing its criteria for the legitimacy of strikes from the formal status of being or not being a Beamter to a more functional differentiation.

28

Federal Constitutional Court Act, 11 August 1993, BGBl. I, 1473, as amended on 22 December 2010, BGBl. I, 2248; see Administrative Court of Osnabrück (note 22), para. 30. 29 30 31 32

Federal Constitutional Court, BVerfGE 40, 88, 93. See Seifert (note 23), 376. Likewise Lörcher (note 23), 242.

See e.g. Committee on Economic, Social and Cultural Rights, Consideration of Reports submitted by States Parties under Articles 16 and 17 of the Covenant, UN Doc. E/C.12/1/Add.29 (1998), paras. 19 and 31; International Labour Office, Report on the Application of Conventions and Recommendations, Report 1987, 179 et seq.; id., Report 1989, 167; id., Report 1991, 174; id., Report 1993, 197 et seq.; id., 1995, 168 et seq.; id., Report 1997, 169; id., Report 1999, 239 et seq.; id., 2003, 261 et seq.; id., Report 2006, 93 et seq.; id., Report 2008, 131 et seq.; Council of Europe, Committee of Independent Experts on the European Social Charter, Conclusions III (1973), 37; id., Conclusions IV (1975), 48 et seq.; id., Conclusions V (1977), 48 et seq.; id., Conclusions VI (1979), 39 et seq.

Denial of Individual Right to Compensation to Victims of World War II Massacre in Light of the ECHR: Sfountouris and Others v. Germany STEPHANIE SCHLICKEWEI(

Introduction: More than 60 years after the end of World War II and the inconceivable atrocities of the Nazi regime, the Federal Republic of Germany is still trying to meet obligations deriving from the fact that it continues the legal personality of the German Reich.1 Nevertheless, not all of the victims from that period of time have received any redress for their unimaginable suffering and loss. Hence, actions against Germany are still lodged even now, with claimants seeking at least monetary compensation for crimes committed by the Nazi regime. Yet to this day the core legal issues of these complaints remain highly controversial. If civil actions are filed in national courts of foreign States, Germany routinely contests those courts’ jurisdiction by invoking State immunity. The famous Ferrini judgment2 of the Italian Supreme Court of Cassation (Corte Suprema di Cassazione) rekindled the discussion of whether Germany’s claim of State immunity was legitimate where the civil actions concerned grave violations of human rights by German military personnel. That discussion was dealt a heavy blow by the recent judgment of the International Court of Justice (ICJ).3 ( Research Associate and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1 E.g. Law on the Creation of a Foundation “Remembrance, Responsibility and Future” (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”), 2 August 2000, BGBl. I, 1263; the Foundation’s website can be found at: http://www.stiftung-evz.de/ (accessed on 23 January 2012). 2 Corte Suprema di Cassazione, Ferrini v. Germany, Judgment of 11 March 2004, reprinted in: Rivista di Diritto Internazionale 87 (2004), 539; English translation in International Law Reports (ILR) 128 (2006), 658. 3 ICJ, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Merits, Judgment of 3 February 2012, available at: http://www.icj-cij.org/docket/files/143/16883.pdf (accessed on 11 February 2012).

742 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011

In Germany, on the other hand, the latest jurisprudence has pertained to the furtherreaching principal substantive question whether any basis in international or German law for an individual right to compensation for victims of Nazi massacres even exists. After the German courts had denied an individual entitlement at every judicial instance, applicants appealed to the European Court of Human Rights (ECtHR). The ECtHR, however, decided in Sfountouris and Others v. Germany in favour of the German courts.4 Facts of the Case: The four applicants are siblings and Greek nationals5 who, by sheer chance, survived a brutal massacre committed by members of the Waffen SS during World War II (June 1944) in the Greek village Distomo (Boeotia). The soldiers, who were integrated into the German armed forces and therefore part of the German occupation troops in Greece, took revenge for an earlier Greek partisan armed attack by killing 218 people (mostly the elderly, women, children, and babies) and devastating their village. The applicants’ parents fell victim to the retribution attack. Like all the other civilian casualties they had not been involved in the Greek partisan assault. The applicants, minors at the time, owe their survival to a German soldier who secretly indicated to them to hide. National Proceedings in Germany:6 The applicants’ endeavours towards financial compensation started with the instituting of proceedings against Germany at the

4 ECtHR, Sfountouris and Others v. Germany, Decision of 31 May 2011, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 15 February 2012), reprinted in: Europäische Grundrechte-Zeitschrift (EuGRZ) 38 (2011), 477. 5 The first applicant, Argyris Sfountouris, has dual citizenship: Swiss and Greek. Further applicants: Chryssoula Tzatha (née Sfountouri), Kondylia Sfountouri, Astero Liaskou (née Sfountouri, died during the proceedings, successors in title are her four children: Maria Liaskou, Dimitrios, Nikolaos and Vasileios Liaskos). 6 Besides their actions in Germany, the applicants ! together with 253 other survivors and after an unsuccessful call on the German embassy in Greece – also brought an action against Germany before the national courts in Greece. While the claims were partially admitted by the Regional Court of Livadeia in 1997 and even upheld on appeal by the First Chamber of the Greek Court of Cassation (Areios Pagos), Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000, Judgment of 4 May 2000, reprinted in: ILR 129 (2007), 513, the Greek Minister of Justice refused to give his permission necessary under local law to a forced execution against another State in respect of Germany’s State immunity and Greece’s political relations to Germany. As the refusal was also approved by a following decision of the ECtHR (ECtHR, Kalogeropoulou and Others v. Greece and Germany, Decision of 12 December 2002, RJD 2002-X, 415) the plaintiffs turned to Italy filing an action for enforcement of the earlier Greek judgments in 1997, but since the judgment of the ICJ without any further chances for success.

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Regional Court of Bonn (Landgericht Bonn, LG Bonn) in September 1995.7 Their action for damages was lodged in their own right with respect to disadvantages in their professional education and career prospects along with negative health implications. It was also brought by virtue of succession transfer in relation to their parents’ right to compensation with respect to the destruction of the familial home and its contents and the stock of products from the parents’ retail shop. Yet even though the applicants’ enormous suffering was acknowledged, the LG Bonn at first instance rejected their complaints, stating that neither international nor national German law provided any basis for their individual compensation claims. The judgment was upheld on appeal by the Higher Regional Court of Cologne (Oberlandesgericht Köln, OLG Köln)8 as well as subsequently by the Federal Court of Justice (Bundesgerichtshof, BGH).9 The courts shared the LG Bonn’s opinion that the claim was without merit.10 While in regard of international law a gross violation of Article 23 (b) and (g) of the Hague IV Regulations11 had been committed by Germany,12 any right to compensa-

7

Regional Court of Bonn (Landgericht Bonn, LG Bonn), Judgment of 23 June 1997, AZ 1 O 358/ 95, reprinted in: BeckRS (2011), 24864. 8 Higher Regional Court of Cologne (Oberlandesgericht Köln, OLG Köln), Judgment of 27 August 1998, AZ 7 U 167/97, reprinted in: OLGR Köln (1999), 5. 9

Federal Court of Justice (Bundesgerichtshof, BGH), Judgment of 26 June 2003, BGHZ 155, 279; unofficial English translation reprinted in: International Legal Materials (ILM) 42 (2003), 1030. The courts denied any res judicata problem and found the claims admissible ! despite the Greek judgments. The OLG Köln relied on the fact that the LG Bonn had adjudicated before the first Greek judgment was rendered (OLG Köln (note 8), para. 40). The BGH resolved that the German courts were not obliged to recognise the foreign decisions since the foreign courts already lacked jurisdiction as Germany had been entitled to invoke immunity (BGH (note 9), 281–285). 10

11 Annex to the Hague Convention (IV) respecting the Laws and Customs of War on Land: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, available at: http://www. unhcr.org/refworld/docid/4374cae64.html (accessed on 22 February 2012) (Hague IV Regulations). This is applicable even though Greece was not a contracting party at that time, since the treaty had already been recognised as an expression of valid customary international law (coutumes de la guerre) for the entire World War II by the International Military Tribunal in 1946, International Military Tribunal (Nuremberg), Judgment of 1 October 1946, reprinted in: Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the dissenting opinion of the Soviet member), Nuremberg, 30th September and 1st October 1946, 65; also e.g. Rudolf Laun, Die Haager Landkriegsordnung (5th ed. 1950), 21–24; OLG Köln (note 8), para. 47; Art. 23 (b) Hague IV Regulations: “To kill or wound treacherously individuals belonging to the hostile nation or army.” Art. 23 (g) Hague IV Regulations: “To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war”. 12

OLG Köln (note 8), para. 46.

744 GERMAN YEARBOOK OF INTERNATIONAL LAW 54 @ 2011

tion resulting from these acts on the level of public international law did not accrue to the applicants themselves.13 The acts had taken place during an armed conflict, were conducted by the German armed forces14 and were therefore also subject to the law of armed conflict15 ! irrespective of the breach of international law and the fact that the military unit’s commander had contravened his instructions.16 Hence, the German Reich’s responsibility as the belligerent party could generally persist, as State liability comprises, inter alia, all acts committed by persons forming part of its armed forces (as a general principle of international law and codified in Article 3 Hague Convention (IV) respecting the Laws and Customs of War on Land (Hague IV Convention)).17 But only Greece, as the victims’ home State, could assert any resulting right to compensation as individuals lacked the necessary legal personality in public international law.18 The damage they suffered was to be regarded as damage to their home State, thus the State held the right to litigate.19 This had been the prevailing legal opinion at least at the time the acts occurred in 1944.20 Hence, as individuals, the applicants could only directly rely on German national law, but there was no substantive basis for a claim. The courts shared the opinion that a compensational claim could not be imposed on the Federal Republic of Germany as an ‘independent post-war liability’ as this would require specific legislation explicitly passed in this area of law. The only possible legislation (Federal Law for the Compensation of the Victims of National Socialist Persecution (Bundesgesetz zur Entschädigung für Opfer von national-

13

Ibid., para. 49; BGH (note 9), 291.

14

They constituted acta iure imperii which was decisive for the courts’ opinions on the question of res judicata. Due to that recognition Germany could rely on its State immunity so the Greek judgments were not binding (see note 10). 15

OLG Köln (note 8), para. 43; BGH (note 9), 292, 293.

16

OLG Köln (note 8), para. 45; BGH (note 9), 293.

17

Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, available at: http://www.unhcr.org/refworld/docid/4374cae64.html (accessed on 22 February 2012) (Hague IV Convention). Art. 3 Hague IV Convention: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces”. 18

OLG Köln (note 8), para. 50; BGH (note 9), 291.

19

OLG Köln (note 8), para. 50.

20

BGH (note 9), 291.

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sozialistischer Verfolgung, BEG))21 was not applicable, since the murder of the applicants’ parents and the devastation of their home town had not been undertaken on discriminatory grounds.22 Also, Germany was not financially responsible on the basis of the German Governmental Liability law since the relevant rules, which had to have been in force when the acts occurred,23 (Anspruch aus Amtspflichtverletzung nach § 839 Bürgerliches Gesetzbuch i.V.m. Art. 131 Weimarer Reichsverfassung)24 could not be invoked. Though some difference can be found in the courts’ argumentation,25 they all agreed that times of war suspended the national law usually applicable in periods of peace as a ‘state of exception’ with only ius in bello remaining as the relevant legal order.26 The armed conflict was seen as a collective act of violence on an interState level, therefore any accountability also had to be regulated on the belligerent party level.27 In accordance with the BGH the non-liability clause of Article 7 of the Law on the Liability of the Reich for its Officials (Gesetz über die Haftung des Deutschen Reichs für seine Beamten, RBHG)28 also confirmed this conclusion as it states that any claim against the German Reich could only be asserted if a bilateral agreement or 21

Federal Law for the Compensation of the Victims of National Socialist Persecution (Bundesgesetz zur Entschädigung für Opfer von nationalsozialistischer Verfolgung, BEG), 18 September 1953, BGBI. I, 1387, as amended on 5 February 2009, BGBl. I, 160. 22

Persecution on political, ethnic or religious grounds, Sec. 1 BEG; OLG Köln (note 8), para. 56; BGH (note 9), 286, 287. 23

The courts recognised the claim as original liability of the German Reich, BGH (note 9), 290.

24

German Civil Code (Bürgerliches Gesetzbuch, BGB), 2 January 2002, BGBl. I, 42, 2909; 2003 I, 738, as amended on 27 July 2011, BGBl. I, 1600; Constitution of the German Empire (Verfassung des Deutschen Reiches, Weimarer Reichsverfassung), 19 July 1919, RGBl., 1383. 25

The BGH ruled that the OLG Köln had appropriately denied any compensation in its judgment as regards the result (BGH (note 9), 293, 295). The OLG Köln drew the conclusion that in times of war the prerequisites of the claims could not be met as usual and therefore no translation of official responsibility to third parties (sog. Drittbezogenheit der Amtspflicht) could be affirmed as the official duty violated by the German troops could not be considered as existing towards the wronged individuals (OLG Köln (note 8), para. 59). In contrary the BGH stated that the acts were referable to third parties (drittgerichtet) so all elements of the offense were fulfilled, but nevertheless it did not constitute an executable liability under domestic law since military acts during an armed conflict were not comprised by domestic public liability (BGH (note 9), 295, 296). 26

BGH (note 9), 296; OLG Köln (note 8), para. 59.

27

BGH (note 9), 296.

28

Law on the Liability of the Reich for its Officials (Gesetz über die Haftung des Deutschen Reichs für seine Beamten, RBHG), 22 May 1910, RGBl., 798.

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relevant legislation were to secure the reciprocity of liability which did not yet exist between Greece and the German Reich in 1944.29 Furthermore, the courts denied any right to compensation on grounds of the rules relating to other parts of the German State Liability Law (rules relating to quasi-expropriation (Entschädigungsanspruch aus enteignungsgleichem Eingriff) or sacrifice (Aufopferung)),30 since these rules only applied to an act in circumstances of day-to-day administrative action (Sachverhalte des alltäglichen Verwaltungshandelns) and not to an act of war.31 The constitutional complaint to the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG)32 was also unsuccessful as the BVerfG held that the challenged decisions were in accordance with the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland).33 The BVerfG affirmed the lower courts’ reliance on the law of the time in which the acts occurred.34 Concerning international law, the BVerfG stuck by the view it had expressed in earlier decisions35 that Article 3 Hague IV Convention did not provide an

29

BGH (note 9), 297. OLG Köln left the question of reciprocity open. Until 30 June 1992 reciprocity had to be guaranteed either by way of legislation of the foreign State or through an international agreement. Such a guarantee was only provided towards Greece since 1957, Announcement of Liability of the Federal Republic of Germany for Acts of Civil Servants vis-à-vis Nationals of the Kingdom of Greece (Bekanntmachung über die Haftung der Bundesrepublik Deutschland für ihre Beamten gegenüber den Angehörigen des Königreichs Griechenland), 31 May 1957, BGBl. I, 607. 30

Drawing from the legal idea (Rechtsgedanke) contained in Secs. 74 and 75 of the Introduction to the Prussian Civil Code (Einleitung zum Preußischen Allgemeinen Landrecht), 5 February 1794, reprinted in: Günter Bernert/Hans Hattenhauer (eds.), Allgemeines Landrecht für die preussischen Staaten von 1794: Textausgabe mit einer Einführung von Hans Hattenhauer (3rd ed. 1996). 31

BGH (note 9), 300.

32

German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), 2 BvR 1476/03 of 15 February 2006, reprinted in: Neue Juristische Wochenschrift (NJW) 59 (2006), 2542. 33 The applicants had claimed a violation of their fundamental rights of Arts. 1 (1), 2 (1), (2), 3 (1), 14 (1) cl. 1, (3), 19 (4), 101 (1) cl. 2, 103 (1) Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1, as amended on 21 July 2010, BGBl. I, 944. The BVerfG had already found the appeal as only partly admissible since a violation of Arts. 103 (1), 19 (4) cl. 1, 2 (1), (2) Basic Law had not been sufficiently substantiated in view of Secs. 92, 23 (1) of the Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz), 11 August 1993, BGBl. I, 1473, as amended on 24 November 2011, BGBl. I, 2302. 34

BVerfG (note 32), 2543.

35

E.g. id., 2 BvR 1379/01 of 28 June 2004, reprinted in: NJW 57 (2004), 3257, 3258.

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individual right to compensation.36 And as to national law, while raising its concern over the civil courts’ view that the German national State liability rules were completely superseded by public international law, any claim that could be achieved from those rules failed in any event due to the lack of a guarantee of reciprocity of liability.37 In addition there was no violation of the equal treatment clause: the German legislator was entitled to distinguish between different categories of victims of National Socialist injustice, as this had not been done in an arbitrary manner.38 Further the BVerfG underlined that Germany had already recognised its responsibility under international law by making payments of reparations and compensation in general as well as on the basis of bilateral accords.39 Decision of the ECtHR: In their subsequent application to the ECtHR on 9 June 2006 the applicants firstly contested the German courts’ refusal to award any compensation, relying on Article 1 of the (first) Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (First Protocol ECHR)40 concerning the right to property. They also challenged the perceived discrimination committed by the German Parliament in compensating victims of Nazi persecution and forced labour but not victims of massacres, relying on Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in conjunction with Article 1 of the First Protocol ECHR.41 However, in its decision of 31 May 2011 the Fifth Section of the ECtHR, meeting as Chamber, declared the application to be inadmissible since it was incompatible ratione materiae with the ECHR’s provisions in terms of Article 35 (3)(a) ECHR.42 In particular the right to property codified in Article 1 of the First Protocol ECHR had not been violated.43 The German courts had neither formed their judgments in 36

BVerfG (note 32), 2543.

37

Ibid., 2543, 2544.

38

Ibid., 2544.

39

Ibid.

40

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, UNTS 213, 262 (First Protocol ECHR). 41 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (European Convention on Human Rights, ECHR). 42

Therefore the application had to be rejected under Art. 35 (4) ECHR.

43

ECtHR, Sfountouris (note 4), 482.

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an arbitrary manner nor had they applied the international or national law in an unreasonable way.44 Therefore the applicants were not able to assert a ‘legitimate expectation’ to receive redress within the meaning of the ECHR since they were not entitled to any compensation, either on the international or national level and they were also unable to rely on any judicial decision to support their claims.45 The ECtHR also pointed out that a Member State had no ‘specific legal obligation’ to compensate any wrongdoing or tort committed by its predecessor State.46 The contention of a breach of Article 14 ECHR alone was also inadmissible, with the ECtHR reaffirming that the non-discrimination clause may only be relied upon in conjunction with other rights arising from the ECHR.47 The applicants were unable to prove the existence of a sufficient entitlement in respect of Article 1 of the First Protocol ECHR and therefore Article 14 ECHR was inapplicable.48 Furthermore the ECtHR emphasised the States’ wide margin of appreciation as to the form and execution of compensation payments to be made for damages to which the State was not responsible under the terms of the ECHR since they were caused before its ratification.49 According to the ECtHR, its decision denying any ‘legitimate expectation’ to successfully demand compensation could not be regarded as being inconsistent with its decision in Stec and Others v. United Kingdom50 in which a general regime of social benefits had been established by the government, since Germany had not introduced any global regulation for compensation concerning the victims of World War II.51 Evaluation: In 1928 the Permanent Court of International Justice had already determined in the Chorzów Factory Case,52 that States’ responsibility for violations of 44

Ibid.

45

Ibid.

46

Ibid.

47

Ibid., 483.

48

Ibid.

49

Ibid.

50

See ECtHR, Stec and Others v. United Kingdom, Decision of 6 July 2005, RJD 2005-X, 321, para. 54; id., Stec and Others v. United Kingdom, Judgment of 12 April 2006, RJD 2006-VI, 131, para. 53. 51 52

Id., Sfountouris (note 4), 483.

Permanent Court of International Justice, Case concerning the Factory at Chorzów, Judgment of 13 September 1928, Series A, No. 17.

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international law was recognised as a general principle of international law, meaning a breach of international law creates an obligation to make adequate reparation. However, the decision of the ECtHR shows once more that, despite individuals being the ‘real’ victims of armed conflicts, they are still unable to assert any rights to compensation since there is no such direct right which is generally recognised. From a purely human rights point of view this might be difficult to understand. Nevertheless, in substance, the ECtHR’s decision has to be considered as legally correct. However, in its reasoning the ECtHR also reminded of its own limited power in dealing with national courts’ alleged factual or legal errors as it is national courts’ primary task to interpret and apply national law53 ! even when the national regulations refer to aspects of general international law or international conventions.54 The ECtHR’s jurisdiction is still limited to national courts’ flagrant violations of national law and national constitutions.55 The German courts’ judgments were indeed neither arbitrary nor unreasonable. Hence, the ECtHR refrained from taking this opportunity to express its view on the national courts’ reasoning or in general on the legal question at hand. However, the Court did draw the correct conclusion that there had been no interference with the applicants’ alleged possessions within the ambit of Article 1 of the First Protocol ECHR, as the applicants were not able to lay a claim to a certain property. Keeping the principle of intertemporal international law56 in mind, it cannot be criticised – contrary to the applicants’ opinion57 – that the German courts had relied on the traditional concept of the mediatisation58 of individuals in international law in their decisions – particularly since the classical approach prevails even today in this area of law.59 While a significant development towards individual complaint 53 ECtHR, Sfountouris (note 4), 482; also e.g. id., Kopecký v. Slovakia, Judgment of 28 September 2004, RJD 2004-IX, 125, para. 56. 54

Id., Sfountouris (note 4), 482; also e.g. id., Markovic and Others v. Italy, Judgment of 14 December 2006, RJD 2006-XIV, 235, para. 108. 55

E.g. id., Barthold v. Germany, Judgment of 25 March 1985, Series A, No. 90.

56

Relevant for the evaluation had to be the international legal order of the time when the acts occurred rather than today. E.g. Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, vol. I/3 (2002), 880. 57

ECtHR, Sfountouris (note 4), 481.

58

Volker Epping, Das Individuum als Völkerrechtssubjekt, in: Knut Ipsen (ed.), Völkerrecht (5th ed. 2004), 7, para. 1. 59

Christian Tomuschat, Ein umfassendes Wiedergutmachungsprogramm für Opfer schwerer Menschenrechtsverletzungen, Die Friedens-Warte 80 (2005), 177, 179.

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procedures in international human rights law in the last few decades has to be acknowledged,60 the same cannot be implied for international humanitarian law.61 While it is true that some rights are conferred on individuals, these do not automatically also contain secondary enforcement rights in the sense of individual compensation claims.62 As yet there is no consensus for considering individuals ‘partial subjects of international law’ in this regard. This held a fortiori for the time when the German war crimes took place, since in 1944 public international law was still entirely based on the traditional State-centric system, being strictly intergovernmental.63 Consequently, particularly during that time, individuals had to rely on ‘diplomatic protection’ – in other words on States invoking responsibility on behalf of their nationals for harm caused by foreign States.64 It was generally accepted that individuals “had no standing to demand a remedy in the field of international humanitarian law”65 against a foreign State – also in terms of the Article 3 Hague IV Convention, which is pertinent in this case.66 However, it cannot be denied that this opinion has been increasingly challenged and discussed recently.67 As alleged by the applicants,68 the travaux 60

Individuals have increasingly become acknowledged as partial international legal subjects in regional and universal human rights treaties, although this does not automatically also entail the right to enforcement. Thomas Giegerich, Another Incoming Tide? Tort Liability in Public International Law, in: Aurelia Colombi Ciacchi/Christine Godt/Peter Rott/Lesley Jane Smith (eds.), Haftungsrecht im dritten Millenium – Liability in the Third Millenium, Liber Amicorum Gert Brüggemeier (2009) 577, 581–595; Liesbeth Zegveld, Victims’ Reparations Claims and International Criminal Courts, Journal of International Criminal Justice 8 (2010), 79, 83. 61 René Provost, International Human Rights and Humanitarian Law (2002), 43–49; Simone Gorski, Individuals in International Law, MPEPIL, para. 39, available via: http://www.mpepil.com (accessed on 14 February 2012). 62 Liesbeth Zegveld, Remedies for victims of violations of international humanitarian law, International Review of the Red Cross (IRRC) 85 (2003), 497, 497, 503–507. 63

Giegerich (note 60), 581; George H. Aldrich, Individuals as Subjects of International Humanitarian Law, in: Jerzy Makarczyk (ed.), Theory of international law at the threshold of the 21st century (1996), 851, 851. 64 Kay Hailbronner/Marcel Kau, Der Staat und der Einzelne als Völkerrechtssubjekte, in: Wolfgang Graf Vitzthum (ed.), Völkerrecht (5th ed. 2010), 3, para. 15; Gorski (note 61), paras. 11, 19. 65

Gorski (note 61), para. 38.

66

Yvonne Kintzel, Das Recht der Opfer schwerer Menschenrechtsverletzungen und schwerer Verletzungen des internationalen humanitären Völkerrechts auf Wiedergutmachung, MenschenRechts Magazin 3 (2007), 40, 42, 43; Zegveld (note 62), 507, 508. 67

E.g. Andreas Fischer-Lescano, Subjektivierung völkerrechtlicher Sekundärregeln, Archiv des Völkerrechts 45 (2007), 299; Roland Bank/Elke Schwager, Is there a Substantive Right to Compensation for Individual Victims of Armed Conflicts against a State under International Law?, German

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préparatoires of Article 3 Hague IV Convention and its open phrasing69 in the light of “the emergence of international human rights law and the growing recognition of the individual as a subject of international law”70 could point to the direct protection of individuals.71 However, contrary to the applicants’ view, this would be of no help in the present case anyway since the current state of general international law in regard to reparations for international humanitarian law violations was not at issue; the law as it stood in 1944 is decisive. As a result, the ECtHR did not even discuss or criticise any possible circumvention of this progress by the German courts which had refrained from giving any view about development in this area of law. Turning to the further denial of an entitlement on the basis of national law, the ECtHR once again refused to give any detailed evaluation of the German courts’ findings. While it has to be appreciated that the German courts followed earlier decisions of the BVerfG dismissing the ‘exclusivity’ of international law,72 the opinion of the civil courts concerning the non-applicability of the national rules on State liability during an armed conflict is challengeable.73 However, the decision of the ECtHR declaring the German courts’ judgments as non-arbitrary, is still not to be criticised, again due to the concept of intertemporal law, since in the end the exclusion of any entitlement on the basis of national law was still justified with regard to Section 7 RBHG. As such the requirement of reciprocity was also in conformity with international law. The ECtHR’s Yearbook of International Law (GYIL) 49 (2006), 367; Andreas Fischer-Lescano/Steffen Kommer, Völkerrechtliche Individualansprüche auf Entschädigung und effektiven Rechtsschutz, in: Peter Becker/ Reiner Braun/Dieter Deiseroth (eds.), Frieden durch Recht (2010), 203. 68

ECtHR, Sfountouris (note 4), 481.

69

The provision does not state expressly who should be entitled to claim compensation, but this is partly also interpreted as reference to the traditional concept of international law. Peter Derleder, Individualentschädigungsansprüche zur Durchsetzung des Kriegsvölkerrechts, in: Becker/Braun/ Deiseroth (note 67), 331, 344. 70

Markus Rau, State Liability for Violations of International Humanitarian Law – The Distomo Case Before the German Federal Constitutional Court, German Law Journal 7 (2005), 701, 709. 71 Elke Schwager, The Rights to Compensation for Victims of an Armed Conflict, Chinese Journal of International Law 4 (2005), 417, 424, 425; Kalshoven even argues that Art. 3 Hague IV Convention had initially meant to protect individuals directly, see Frits Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, International and Comparative Law Quarterly 40 (1991), 827, 830–838. 72 The BVerfG had repeatedly stated that individual entitlement under national law arising from a conflict was not automatically barred by the existence of a claim of a State for reparation under international law. E.g. BVerfG, BVerfGE, 94, 315. 73

E.g. OLG Köln, Judgment of 28 July 2005, 7 U 8/04, reprinted in: NJW 58 (2005), 2860.

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remarks on Article 14 ECHR were likewise rather short as the ECtHR simply relied on its limited and merely complementary role in declaring it irrelevant for the present case. In reiterating that Article 1 of the First Protocol ECHR remains unaffected and that no other rights enshrined in the ECHR could be coupled with Article 14 ECHR in this case, the ECtHR’s conclusion on Article 14 ECHR also has to be met with approval. However, the ECtHR decided to elaborate on this further, correctly declaring that the rule constructed in Stec and Others v. United Kingdom could not be of any relevance in the present case. While Germany had made the choice to settle many reparation payments since 1945, any obligation arising from these payments was never intended to extend to all victims of the Nazi crimes. These payments were intended to make reparation for ‘Nazi motivated injustice’ leaving the victims of massacres out of scope where no motive of racist or political persecution was involved.74 Since Germany was under no legal obligation to make payments to other victims, this cannot be criticised, at least in legal terms. As a result, the decision of the ECtHR has a sound legal basis both under the ECHR and international law in general since there is no consensus within the international community of States that war crimes committed in 1944 should give rise to individual compensation claims. But whether Germany may be obliged in moral terms to compensate all the victims of Nazi atrocities is another matter. Germany’s conscious decision to leave victims of war crimes without compensation is also according to the ICJ not only surprising but also to be regretted.75 However, it is for Germany and not the Strasbourg Court to bear that moral responsibility.

74

E.g. Law on the Treaty of 18 March 1960 between the Federal Republic of Germany and the Kingdom of Greece on Benefits for Greek Nationals Affected by National Socialist Measures of Persecution (Gesetz zu dem Vertrag vom 18. März 1960 zwischen der Bundesrepublik Deutschland und dem Königreich Griechenland über Leistungen zugunsten griechischer Staatsangehöriger, die von nationalsozialistischen Verfolgungsmaßnahmen betroffen worden sind), 14 September 1961, BGBl. II, 1596. 75

ICJ (note 3), para. 99.

Whistle-Blowing after Heinisch v. Germany: Much Ado About Nothing? CLAUDIA SCHUBERT(

Introduction: In its judgment of the case Heinisch v. Germany of 21 July 20111 the European Court of Human Rights (ECtHR or the Court) found Germany in violation of its obligation under Article 10 of the European Convention of Human Rights and Fundamental Freedoms2 (ECHR or the Convention). At the first glance, the decision of the Court might seem to question the current handling of whistleblowing cases under German labour law, but a closer analysis of the reasoning of the Court shows that no more than minor adjustments are necessary in order to establish compatibility with Article 10 ECHR. Facts of the case and its procedural history: The applicant, Brigitte Heinisch, a geriatric nurse employed by Vivantes Netzwerk für die Gesundheit GmbH (a limited company specialised in healthcare and assistance to the elderly and majority owned by the state of Berlin) had worked in a nursing home for the elderly since January 2002. Between January 2003 and October 2004 the applicant and her colleagues regularly reported being overworked and overloaded due to staff shortages and specified deficiencies in the care provided as well as in its documentation. From May 2003 the applicant was repeatedly ill and unable to work. In November 2003 the medical review board of the health insurance fund (Medizinischer Dienst der Krankenkassen) confirmed serious shortcomings in the care of the elderly and the insufficient documentation. In November 2004 the applicant’s legal counsel wrote to the management (

Professor of Civil Law and Labour Law at the Freie Universität Berlin, Faculty of Law.

1

ECtHR, Heinisch v. Germany, Judgment of 21 July 2011, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 24 January 2012). 2

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5.

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of Vivantes explaining that the hygienic care of the patients could no longer be guaranteed. The letter asked the management how it intended to ensure its standard of care and thus avoid any criminal liability to themselves and the staff. In addition, the review board also visited the premise a second time without prior notice. Finally, the management rejected the applicant’s accusation and her lawyer lodged a criminal complaint against her employer on account of aggravated fraud leading from the deliberate failure to provide the high quality care promised. The counsel concluded that the complaint was primarily brought by the applicant in order to avoid her own criminal liability. The public prosecutor terminated the preliminary investigation as there were insufficient reasons for bringing a public charge. Following the events, the applicant was first dismissed on account of her repeated illness and then she was dismissed without notice on suspicion of having initiated the production and dissemination of a leaflet calling her dismissal a political disciplinary measure, an attempt at intimidation and asking for solidarity. The applicant successively lodged a claim against both dismissals and for her reinstatement before the Berlin Labour Court (Arbeitsgericht Berlin).3 In reference to her second dismissal, she was successful in the first instance because her information flyer was found to be covered by her right to freedom of expression. The Berlin Labour Court of Appeal (Landesarbeitsgericht Berlin), however, held the dismissal to be lawful as the criminal complaint had been a ‘compelling reason’ for instant dismissal.4 The Federal Labour Court (Bundesarbeitsgericht) rejected the appeal5 and the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit a constitutional complaint against the judgment.6 The applicant lodged an application with the ECtHR under Article 34 ECHR for the violation of her right to freedom of expression as provided in Article 10 ECHR as a result of the dismissal on the grounds that she had filed a criminal complaint against her employer.

3

Berlin Labour Court (Arbeitsgericht Berlin), Judgment of 3 August 2005, Reference No. 39 Ca 4775/05. 4 Berlin Labour Court of Appeal (Landesarbeitsgericht Berlin), Judgment of 28 March 2006, Reference No. 7 Sa 1884/05; 39 Ca 4775/05, reprinted in: Arbeit und Recht (AuR) 55 (2007), 51. 5 Federal Labour Court (Bundesarbeitsgericht), Judgment of 6 June 2007, Reference No. 4 AZN 487/06. 6

Federal Constitutional Court (Bundesverfassungsgericht), Judgment of 6 December 2007, Reference No. 1 BvR 1905/07.

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Ruling and Opinion of the Court: The ECtHR unanimously held domestic courts’ refusal to reinstate the applicant as a violation of Article 10 ECHR. The German courts had failed to adequately balance the need to protect the employer’s rights and reputation on the one hand and the need to protect the applicant’s right to freedom of expression on the other. The Court ruled that both the criminal complaint and the applicant’s whistle-blowing fell within the scope of Article 10 (1) ECHR and that both the dismissal by the employer and the ruling of the domestic courts constitute an infringement of the right to freedom of expression. The opinion focused strongly on the justification. The infringement of this right is not a breach of Article 10 ECHR if it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. The Court regarded Section 626 (1) German Civil Code7 (Bürgerliches Gesetzbuch) as a sufficient legal basis for a dismissal even though it demands a significant breach of the employee’s duty of loyalty and contains no explicit mention of whistle-blowing. As in previous judgments, the Court did not expect legislation to address for every eventuality. The opinion of the Court focussed on whether the interference in the rights afforded by Article 10 ECHR was necessary within a democratic society. It presupposed a ‘pressing social need’ and allowed the contracting state a certain margin of appreciation. The Court scrutinised the possible infringement and determined whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities constituted a relevant and sufficient justification. The Court held that whistle-blowing by an employee in the public sector enjoys protection as he or she is best placed to act in the public interest by highlighting irregularities to the employer or the public.8 Yet the right to freedom of expression must be weighed against the employer’s right to protection of his/her (business) reputation and commercial interests which induce the employee’s duty to loyalty. It was undisputed that the legitimate aim of the dismissal was the protection of Vivantes’ business reputation and commercial viability. The Court reasoned that the employee should first disclose to its superior or other competent authority or body 7

German Civil Code (Bürgerliches Gesetzbuch), 2 January 2002, BGBl. I, 42, 2909; 2003, BGBl. I, 738, as amended on 27 July 2011, BGBl. I, 1600. 8

Just as before ECtHR, Marchenko v. Ukraine, Judgment of 19 February 2009, para. 46; id., Guja v. Moldova, Judgment of 26 February 2009, para. 72, both available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 24 January 2012).

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and that the disclosure to the public should be a last resort. Hence, the Court also took the applicant’s alternative effective means in order to remedy the wrongdoing into account. The Court considered a number of other factors: 1) the public interest involved, 2) the authenticity of the information, avoiding defamatory accusations, 3) the damage suffered by the employer, 4) the motive of the reporting employee, especially his or her good faith and 5) the proportionality of the infringement depending on the severity of the sanction against the employee. In the application of the general principles of Article 10 ECHR, the Court pointed out that the information disclosed by the applicant was undeniably in the public interest. In societies with a growing elderly population being subject to institutional care and in a particularly vulnerable position, the dissemination of information about deficiencies of this care had become crucial. In the opinion of the Court, this was even more evident where institutional care was provided by a State-owned company. Weighing up the legitimate interest of the employer in its business reputation and the right of freedom of expression, the Court gave a detailed analysis of the relevant factors. It referred to the judgments of the Federal Labour Court9 and the Federal Constitutional Court10 without questioning their lines of argumentation in principle. The Court differed both in its evaluation of the facts of the case, affording more credibility and authenticity to the applicant and her submission than the German Labour Courts and the German Government in the proceedings in Strasbourg. Furthermore, it did not find enough evidence to counter the applicant’s statement that an internal complaint would not have constituted effective means. The lack of further witnesses was also not regarded as a counter-argument for the authenticity of the information given. Instead the Court referred to the applicant’s fear of incriminating herself and being a target of retaliation. It did not evaluate the polemical nature of the submission in the criminal complaint as possible evidence for the motive to denounce the employer. Unlike the German labour courts and the German Government, the Court’s assessment of the legitimate interests of the employer took into account the fact that the employer is a State-owned company providing, inter alia, institutional care for the 9 10

Federal Labour Court (Bundesarbeitsgericht), Judgment of 3 July 2003, BAGE 107, 36 et seq.

Federal Constitutional Court (Bundesverfassungsgericht), Decision of 2 July 2001, reprinted in: Neue Juristische Wochenschrift (NJW) 54 (2001), 3474.

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elderly. Not conceding a legitimate interest in commercial viability, the Court emphasised that the protection of public service by State-owned or administered companies is crucial for the functioning and economic prosperity of the entire sector. Therefore the public shareholder itself has an interest in the reporting and clarifying of the alleged shortcomings within the setting of an open public debate. The Court concluded that information about such deficiencies is of vital importance in a democratic society and that this outweighs the interest in protecting the company’s business reputation. Finally, the ECtHR pointed out that the severity of the sanction for the employee was disproportionate, as such repercussions discouraged her and other employees from reporting shortcomings in institutional care – which is detrimental to society as a whole. This had to be taken into consideration when assessing the proportionality of the sanctions’ pursuit of a legitimate interest. The Court ruled that Germany had violated Article 10 ECHR and awarded the applicant 10,000 € in non-pecuniary damages.

Comment Violation of the right to freedom of expression

Justification of the infringements of rights afforded by Article 10 (1) ECHR: Whilst examining the alleged violation of Article 10 ECHR, the Court relied on its existing jurisprudence, which did not demand an explicit regulation or law governing whistle-blowing and permitted sanctions imposed by employers. The ECtHR concentrated on whether interference was necessary within a democratic society in order to pursue a legitimate aim. The Court relied strongly on its previous case law dealing with Article 10 ECHR which has developed substantially since 1995. This panoply of cases has encompassed journalists, judges, civil servants and other employees in the public service who were terminated, sanctioned by disciplinary measures or punished on account of the disclosure of information. The present judgment is based on the impact of the right to freedom of expression and its meaning for a democratic society, meaning every interference calls for a legitimate aim in terms of Article 10 (2) ECHR and has to be necessary in a democratic society. In this respect the contracting state

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has a certain margin of appreciation whether there is a pressing social need;11 nonetheless, the Court does not restrict its supervision to the reasonable exercise of discretion but verifies whether the infringement was proportionate to the legitimate aim pursued.12 In the opinion of the Court, Article 10 ECHR is applicable in the workplace regardless of the nature of the relationship between the employer and employee. Here the Court did not and did not have to distinguish whether the employer was a private person or part of the State,13 as this was not necessary as long as the application of Article 10 ECHR referred to an act of the contracting State such as a punishment, a disciplinary measure or a judgment. The same applies to cases of the dismissal of a civil servant or a judge. However, in the Fuentes Bobo and Balenović Cases, the ECtHR held that Article 10 ECHR applies even if the relation between employer and employee is governed by private law, because the State has a positive obligation to protect the right to freedom of expression.14 Hence, Article 10 ECHR is seen as both a right to protect the individual from the State and a positive obligation of the State to protect the individual from infringements of this right by private persons. In the Heinisch Case the Court did not specify the relevant aspect of Article 10; it did not make clear whether the right to protection from the State is applicable in cases where a private company is completely State-owned, or whether the State is merely obliged to protect the employee’s right. It is not uncommon for the Court not to specify the relevant aspects or scope of such rights and this does not seem to influence the level of 11

ECtHR, Vogt v. Germany, Judgment of 26 September 1995, Series A, No. 323-A, para. 52; id., Hertel v. Switzerland, Judgment of 25 August 1998, RJD 1998-VI, 2298, para. 46; id., Fuentes Bobo v. Spain, Judgment of 29 February 2000, para. 43, available via: http://www.echr.coe.int/ECHR/EN/ hudoc (accessed on 24 January 2012); id., Steel and Morris v. the United Kingdom, Judgment of 15 February 2005, RJD 2005-II, 1, para. 87; id., Stoll v. Switzerland, Judgment of 10 December 2007, para. 101, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 24 January 2012); id., Guja v. Moldova (note 8), para. 69; id., Kudeshkina v. Russia, Judgment of 26 February 2009, para. 82, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 24 January 2012). 12

See supra, note 11.

13

See with regard to civil servants: ECtHR, Vogt v. Germany (note 11), para. 53; id., Wille v. Liechtenstein, Judgment of 28 October 1999, RJD 1999-VII, 279, para. 41; id., Ahmed and Others v. the United Kingdom, Judgment of 2 September 1998, RJD 1998-VI, 2356, para. 56; id., Guja v. Moldova (note 8), paras. 52, 72; see also id., Kudeshkina v. Russia (note 11), para. 85 (judge). 14

ECtHR, Fuentes Bobo v. Spain (note 11), para. 48; id., Wojtas-Kaleta v. Poland, Judgment of 16 July 2009, paras. 42 et seq.; id., Balenović v. Croatia, Judgment of 30 September 2010, both available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 29 November 2011).

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protection in the opinion of the Court. The obligation to protect the employee’s rights, as opposed to the right to protection from the State, can result in a lower duty of loyalty and reduces the restrictions on the right to freedom of expression. However, the State cannot circumvent its responsibility by delegating its competence to a private entity.15 This rule applies even more so if the private company is State-owned or administered, because the company is fulfilling a task of the State. In principle, the Court takes the duty of loyalty in account when it examines a violation of Article 10 ECHR.16 This is done in reference to Article 10 (2) ECHR, which stipulates that the right to freedom of expression involves both duties and responsibilities. In this respect the duty of loyalty has a lesser degree of influence on the evaluation of the case, for civil servants in particular. The Court also named a number of factors relevant to the proportionality test. These are not unique to the present case but were developed in the Guja Case which the Court refers to.17 These criteria can be attributed to the aim of the right to freedom of expression, the legitimate interest pursued by the interference and the consequences of the interference in the rights afforded to the applicant by Article 10 ECHR. These criteria are of crucial importance for the review of all whistle-blowing cases regardless of whether the employee is a judge, civil servant or employee in the public service. State-owned or State-administered companies and the consideration of public interest: In the reasoning of the Court, the protection of public confidence in the quality of institutional care of the elderly as a foundation for its functioning and economic good of this sector is a crucial factor in terms of violation of Article 10 ECHR.18 The State has its own interest in the disclosure of shortcomings in institutional care. The ECtHR even seems to imply that the State has a responsibility for the reliability and prosperity of the economic sector of institutional care. Such a responsibility is not directly imposed by the ECHR. However, Article 10 ECHR gives at least 15

Jens Meyer-Ladewig, EMRK (3rd ed. 2011), Art. 1, para. 9.

16

ECtHR, Wojtas-Kaleta v. Poland (note 14), para. 43; id., Marchenko v. Ukraine (note 8), para. 45; id., Guja v. Moldova (note 8), para. 70; id., Kudeshkina v. Russia (note 11), para. 85; id., Pay v. the United Kingdom, Judgment of 16 September 2008, available via: http://www.echr.coe.int/ECHR/EN/ hudoc (accessed on 18 November 2011); id., Balenović v. Croatia (note 14). 17

ECtHR, Guja v. Moldova (note 8), paras. 74–78; see also according to a journalist id., Stoll v. Switzerland (note 11), para. 112. 18

ECtHR, Heinisch v. Germany (note 1), para. 89.

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rise to the argument that the right to freedom of expression protects and guarantees public discourse. This encompasses the disclosure of deficiencies, in particular in relation to public institutions, in order to support the combat against corruption or abuse of authority or office. A termination of the employee on account of disclosure of information intimidates other employees and endangers the freedom of expression – thus also the aims pursued by guaranteeing this right in the Convention. This argument may be used in the context of institutional care, in as far as the State regards the care for the elderly to be its obligation.19 The Court noted that only a small group of persons has access to this valuable information on the subject, especially when debate takes place without democratic and judicial control; hence the freedom of expression gains specific importance in such circumstances. In addition to this, whistle-blowing may secure the functioning of criminal justice.20 The Court had not previously established the genuine interest on the State’s part in the public disclosure and discourse but had rather emphasised the relevance of Article 10 ECHR in order to argue for a violation of the right to freedom of expression. There are, however, also other reasons why the state should have a genuine interest in the functioning of the institutional care of the elderly. The ECtHR noted that the elderly are more dependent and in a vulnerable position and cannot defend themselves effectively. For these reasons the State is obliged to guarantee life, integrity and dignity of these persons.21 The fight against shortcomings in institutional care ensures public safety and order at the same time, at least if it is a State-owned company. These State obligations give rise to their own genuine interest towards compliance in this sector and, therefore, in the disclosure of deficiencies.

19

The consideration of public interests and interests of third persons was criticised by Cornelius Becker, Das Urteil des EGMR zum Whistleblowing – Neuer Lösungsweg auch für deutsche Arbeitsgerichte?, Der Betrieb (DB) 64 (2011), 2202, 2203. 20 21

Ibid.

Protection of life: ECtHR, Calvelli and Ciglio v. Italy, Judgment of 17 January 2002, RJD 2002-I, para. 48; id., Dodov v. Bulgaria, Judgment of 17 January 2008, para. 79, available via: http://www.echr. coe.int/ECHR/EN/hudoc (accessed on 24 January 2012); David Harris/Michael O’Boyle/Ed Bates/ Carla Buckley, Law of the European Convention on Human Rights (2009), 37; see the detailed exposition by Heike Krieger, Kapitel 6: Funktionen von Grund- und Menschenrechten, in: Rainer Grote/ Thilo Marauhn (eds.), EMRK/GG Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (2006), paras. 24 et seq.

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The wording of the judgment indicates a distinction between public employers or employers in State-owned companies and private employers, but the Court did not explicitly hold that the right to freedom of expression is necessarily more restricted if a private employer is concerned. The public interest in information relevant in the Heinisch Case, however, is distinct from the public interest in shortcomings in the quality of care provided by a private company. If a private employer endangers these rights guaranteed by the Convention, at the very least the State has a positive obligation to protect the integrity and dignity of the person concerned. This does not accord the right to freedom of expression the same degree of importance as in the Heinisch Case because the exercise of the right to freedom of expression does not serve to control the social responsibility of the State. Nevertheless, the obligation of the State to take appropriate measures in order to prevent the violation of the right allows courts to consider that the employee acted in order to protect the rights of others guaranteed by the Convention when it evaluates the lawfulness of the employee’s termination. Due to the vulnerability of the elderly, duty of loyalty in such circumstances may be restricted as an employer cannot expect loyalty when violating human integrity and dignity, despite the Convention not attributing rights vis-à-vis private persons. This restricts the employer’s protection of business reputation and commercial interest but it does not prevent the State from fulfilling its positive obligation in relation to the endangerment or violation of the integrity or dignity of the elderly by the employer. As the obligation is addressed to the State, one may only refer to it if the protectional legislative or administrative measures have failed and the court is therefore obliged to consider this obligation in its judgment. Consequences for German Labour Law: Subsequent to the decision in the Heinisch Case, the domestic courts have to adjust their jurisprudence in such cases and their interpretation of Section 626 (1) German Civil Code as much as legally and semantically possible and necessary. The ECHR enjoys the same ranking as German federal law and has to be considered within the interpretation of Section 626 (1) German Civil Code and within the acknowledgement of a duty to loyalty on account of Section 241 (2) German Civil Code. If a domestic court ignores the findings of the ECtHR it also violates the applicant’s rights under the German Basic Law22 (Grund-

22

German Basic Law (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. I, 1 as amended on 21 July 2010, BGBl. I, 944.

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gesetz), in particular the right to freedom of action interpreted in light of the rule of law (Articles 2 (1), 20 (3) of the German Basic Law).23 Even prior to the Heinisch Case, the German courts were mindful of the employee’s right to freedom of expression and the citizen’s right to lodge a criminal complaint in deciding on the lawfulness of a dismissal under Section 626 (1) of the German Civil Code. At the same time the courts considered the employee’s duty of loyalty obliging him as a minimum to report to a supervisor or the management before disclosing information to the administration or the public. This understanding is underlined by the judgment in the Heinisch Case. The only deviation from the existing jurisprudence in whistle-blowing cases is the recognition of a genuine interest on the part of the State in the disclosure of shortcomings in institutional care. This is primarily an argument that emphasises the importance of the right to freedom of expression within a democratic society that restricts the duty of loyalty if the employer is the State or a State-owned company. Yet it does not change the domestic law in principle,24 especially because the evaluation of the facts was the main reason for a different outcome of the procedure.25 The Berlin Labour Court of Appeal was too strict when regarding the criminal complaint as compelling reason for a termination of the contract.26 This is only the case if the employee did not try an internal report or gives false information knowingly or frivolously. Conclusion: The judgment of the ECtHR continues the existing case law on Article 10 ECHR and emphasises the meaning of the right to freedom of expression as an indispensable element of a democratic society, as it guarantees independent checks and balances alongside judicial scrutiny. The decision does not alter the 23

Federal Constitutional Court, BVerfGE 111, 307, 323 et seq.; id., Decision of 5 April 2005, reprinted in: NJW 58 (2005), 1765, 1766; id., Decision of 21 March 2007, reprinted in: NJW 60 (2007), 2686, 2688. 24

Daniel Ulber, Whistleblowing und der EGMR, Neue Zeitschrift für Arbeitsrecht (NZA) 28 (2011), 962, 964; detailed explanation on the termination of the contract of employment in the case of whistle-blowing: Michael Müller, Whistleblowing – Ein Kündigungsgrund, NZA 19 (2002), 424, 429 et seq.; Manfred Herbert/Jörg-Dieter Oberrath, Schweigen ist Gold?, NZA 22 (2005), 193, 194 et seq. 25

With reference to the judicial appraisal of the facts, Oliver Simon/Jan Moritz Schilling, Kündigung wegen Whistleblowing, Betriebs-Berater (BB) 66 (2011), 2421, 2425. 26

See Dieter Deiseroth, Kündigungsschutz bei Strafanzeigen gegen den Arbeitgeber, AuR 55 (2007), 198. Very critical with regard to the appraisal of facts by the Labour Court of Appeal Ulber (note 24), 964.

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principles of domestic labour law. Only where a State-owned company is involved does the importance of the freedom of expression have to be re-considered. Yet this does not necessarily lead to a different treatment of public and private employers involved in whistle-blowing cases. Apart from initiatives of the federal States of Berlin and Hamburg in the German Federal Council (Bundesrat),27 there is no plan by the government to change German labour law regarding whistle-blowing or for an explicit alignment to current European case law.28 Yet the Green Party is discussing a draft of an Act for the protection of whistleblowers at the time of writing.29 The G-20 States have recently discussed standards for the protection of whistle-blowers, but only with regards to combating corruption.30

27 In the session on 14 October 2011, see Federal Council Journal (Bundesrats-Drucksache) 534/11, 1 and 534/11 (Beschluss), both available via: http://www.bundesrat.de/cln_235/nn_8396/Shared Docs/Drucksachen/2011/0501-600/534-11,templateId=raw,property=publicationFile.pdf/534-11.pdf (accessed on 24 January 2012). 28

See also answer of the Federal Government on a parlamentary request (Kleine Anfrage), Parliamentary Journal (Bundestags-Drucksache), 17/7053, available at: http://dip21.bundestag.de/dip21/ btd/17/070/1707053.pdf (accessed on 24 January 2012). 29 30

Draft available at: http://gruener-gesetzentwurf.de/ (accessed on 24 January 2012).

See OECD Study for the G 20 according to the G 20 Anti-Corruption Action Plan, Action Point 7: Protection of Whistleblowers, available at: http://www.oecd.org/dataoecd/42/43/48972967.pdf (accessed on 24 January 2012).

Freedom of Expression in a National Context: The Case of Hoffer and Annen v. Germany ANTJE SIERING(

Introduction: Within the contracting States of the European Convention of Human Rights (ECHR),1 everyone has the right to freedom of expression granted by Article 10 ECHR. Germany, which is a contracting State of the ECHR, also guarantees this right in Article 5 (1) German Basic Law (Grundgesetz).2 To act according to the duties of international law, the jurisprudence of the German courts in respect of Article 5 (1) German Basic Law needs to be congruent with Article 10 ECHR. Until now it has been unclear if importance, or indeed how much importance, is to be placed upon national history or morals by the national courts in accordance with the ECHR. The case of Hoffer and Annen v. Germany3 raised this question after the European Court of Human Rights (ECtHR), in its decision of Akdas v. Turkey,4 took a general European perspective of morals into account.5 In the domestic case6 that was

( Research Associate and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR). 2 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944. 3

ECtHR, Hoffer and Annen v. Germany, Judgment of 13 January 2011, para. 40, available via: http://hudoc.echr.coe.int/hudoc/ (accessed on 23 January 2012). 4 ECtHR, Akdas v. Turkey, Judgment of 12 February 2010, paras. 26 et seq., available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 23 January 2012). 5

Ibid., para. 30.

6

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGK 8, 89.

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to be examined in Hoffer and Annen v. Germany,7 the German courts had paid a high regard to German history.8 Legal Background: Every German court is bound by the German basic rights (Grundrechte) pursuant to Article 20 (3) German Basic Law and courts have to regard and balance the basic rights to ensure a fair coexistence amongst citizens. Article 5 (1) German Basic Law guarantees the right to freedom of expression and comprises the generation of opinion and the right to express it.9 In this context an opinion is defined by the following elements: estimation, conviction, statement or value judgment.10 The right to freedom of expression is not granted unconditionally, because in most cases interferences with other German basic rights occur. Conflicts with the personality right in Article 2 (1) German Basic Law are particularly prevalent. In this context the right to freedom of expression is restricted in Article 5 (2) German Basic Law by the right of personal honour or other German law.11 This is evidenced in nearly all criminal cases concerning defamation, punishable by Sections 185 et seq. German Criminal Code (Strafgesetzbuch).12 Here the defendant’s right to freedom of expression and the injured party’s personality right are in conflict. In such cases German courts have to consider Article 5 (1) German Basic Law13 and balance it with the personality right of the other party. Where a defendant considers that his basic rights have been violated by the judgment of the lower courts, he is entitled to make an appeal for the case to be heard at the Federal Constitutional Court (Bundesverfassungsgericht), having first exhausted all remedies in the lower courts. The Federal Constitutional Court scrutinises judg7

ECtHR, Hoffer and Annen (note 3).

8

Germany’s history during the first half of the 20th century, the Third Reich and the persecution of Jews. 9 Christian Starck, Art. 5, in: Hermann von Mangoldt/Friedrich Klein/Christian Starck (eds.), Kommentar zum Grundgesetz, vol. 1 (6th ed. 2010), Art. 5, para. 33; Herbert Bethge, Art. 5, in: Michael Sachs (ed.), Grundgesetz Kommentar (6th ed. 2011), Art. 5, para. 44. 10

Starck (note 9), para. 22; Bethge (note 9), para. 25; Federal Constitutional Court, BVerfGE 7, 198, 210; id., BVerfGE 61, 1, 8; id., BVerfGE 90, 241, 247. 11

E.g. id., BVerfGE 93, 266, 291.

12

German Criminal Code (Strafgesetzbuch der Bundesrepublik Deutschland), 13 November 1998, BGBl. I, 3322, as amended on 1 July 2011, BGBl. I, 1266. 13

E.g. Federal Constitutional Court, BVerfGE 53, 250, 268.

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ments of the lower courts in respect of a violation of the German Basic Law, especially that of German basic rights. In criminal cases concerning defamation the Federal Constitutional Court must examine whether the criminal courts paid attention to the basic rights of the defendant and whether they found the right balance between the affected rights. If the request before the German Federal Constitutional Court is not successful, the defendant has the possibility to present its case at the international level. The most important international court in this respect is the ECtHR. Pursuant to Article 10 (2) ECHR an infringement of the right to freedom of expression is justifiable if the restriction is prescribed by law, if it pursues one or more of the legitimate aims set out in Article 10 (2) ECHR and if it is necessary in a democratic society. In many cases the pivotal question is whether the particular exercise of State power pursues a legitimate aim and, in conjunction with this, whether it is necessary in a democratic society. A fair balance has to be struck between the competing interests of the individual, whose statements are protected by the right to freedom of expression, and the public interest of the community as a whole,14 which has to weigh up the importance of the statement which was made against, for example, the protection of the rights of others. Precedents are ambivalent on whether the social or historical context of the State party has to be taken into account when balancing the opposed rights of the individuals. In the past, the ECtHR has declared it impossible to discern common European norms of morals, because morals, e.g. the significance of religion in a society, are determined by the historical or social background of that particular State.15 Furthermore, the ECtHR has recognised that the elements and implications of the historical background vary from place to place and time to time. Thus, according to the ECtHR, national authorities are in a better position than an international court to give an opinion on these elements and implications.16 In its other jurisprudence, the ECtHR

14

E.g. ECtHR, Karhuvaara and Iltalehti v. Finland, Judgment of 16 November 2004, RJD 2004-X, 259, para. 42. 15

Id., Otto-Preminger-Institute v. Austria, Judgment of 20 September 1994, Series A, No. 295-A, para. 50; id., Müller and others v. Switzerland, Judgment of 24 May 1988, Series A, No. 133, para. 35. 16 Id., Handyside v. UK, Judgment of 6 December 1976, Series A, No. 24, para. 48; id., OttoPreminger-Institute (note 15), para. 50; id., Akdas (note 4), para. 27.

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has paid regard to the margin of appreciation of the contracting States in assessing how far necessity in a democratic society extends in the domestic context.17 The supervision of domestic courts by the ECtHR only oversees and perhaps limits the influence of national historical backgrounds and social or moral requirements.18 In 2010, for example, the ECtHR limited the influence of a State’s historical background in the case of Akdas v. Turkey.19 In that case the ECtHR took into account a general European perspective of morals20 and paid little regard to the margin of appreciation of the national authorities. However, the ECtHR has never given a clear and universally applicable ruling as to whether or not having excessive regard to the social or historical background of a particular State party amounts to a breach of the ECHR. Facts of the Case: In 1997, the applicants distributed pamphlets to passers-by in front of a medical centre in Nuremberg. The pamphlets contained information about abortion techniques, the development of the human foetus, and an appeal to support the applicants’ struggle against “the unpunished killing of unborn children.” Dr. F, a doctor at the Nuremberg medical centre, was characterised in the pamphlet as a “Killing Specialist.” The pamphlet also included a section comparing abortion with the Holocaust, saying: “then: Holocaust, today: Babycaust.” On behalf of the medical centre and Dr. F, criminal charges were brought against the applicants for defamation. The District Court (Amtsgericht) acquitted the applicants. The Regional Court (Landgericht) overturned the District Court’s judgment and convicted the applicants for defamation of the medical centre and Dr. F.21 The Regional Court defined ‘Holocaust’ as a synonym for the most unjustifiable crimes and interpreted the pamphlet as equating the lawful activity of Dr. F with the Holocaust. It held that because the ‘Holocaust/Babycaust’ section of the pamphlet debased the doctor in an unnecessary way by qualifying him as a mass murderer, that section 17

Id., Perna v. Italy, Judgment of 6 May 2003, RJD 2003-V, 333, para. 39; id., Otto-PremingerInstitute (note 15), para. 50; id., Akdas (note 4), para. 27. 18

E.g. id., Otto-Preminger-Institute (note 15), para. 50.

19

Id., Akdas (note 4), paras. 26 et. seq.

20

Ibid., para. 30.

21

Regional Court Nuremberg-Fürth (Landgericht Nürnberg-Fürth), Judgment of 26 May 1999, 2 Ns 407 Js 44671/1997.

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was not covered by the right to freedom of expression. The Higher Regional Court of Bavaria (Bayerisches Oberstes Landesgericht) rejected the applicants’ appeal.22 The applicants consequently appealed to the Federal Constitutional Court. With regard to the violation of the applicants’ rights to freedom of expression, the Federal Constitutional Court decided in 2006 that the Regional Court had respected the doctor’s rights.23 They considered the expressions in the pamphlet comparing the doctor’s professional activities to the Holocaust to be a serious interference with the doctor’s personality right.24 Accordingly, the Federal Constitutional Court ruled that the Regional Court had balanced the conflicting interests – the applicants’ right to freedom of expression and the doctor’s personality right – correctly. However, the Federal Constitutional Court found that the rights of the medical centre, as opposed to those of Dr. F, were not violated by the applicants’ pamphlets because there were no grounds for the claim brought by the staff of the medical centre. According to the Court, they were left unaffected by the mentioning of the medical centre in the pamphlet.25 In 2007, the applicants brought the case to the ECtHR. They alleged in particular that their criminal convictions violated their right to freedom of expression under Article 10 ECHR. Decision of the ECtHR: On 13 January 2011 the ECtHR held that the conviction of the applicants did not violate their right to freedom of expression. The ECtHR found that the criminal conviction amounted to an interference with the applicants’ rights under Article 10 (1) ECHR, but that the requirements of Article 10 (2) ECHR were fulfilled and the infringement thus justified.26 Article 10 (2) ECHR requires the interference to be prescribed by law, examining whether it pursued one or more of the legitimate aims set out in Article 10 (2) ECHR, and whether it was necessary in the democratic society in order to achieve those aims. Since the conviction was based on the German Criminal Code, the interference was 22

Higher Regional Court of Bavaria (Bayerisches Oberstes Landesgericht), Decision of 8 December 1999, 5St RR 213/99 a, b. 23

Federal Constitutional Court (note 6).

24

Ibid., 96 et seq.

25

Ibid., 99 et seq.

26

ECtHR, Hoffer and Annen (note 3), para. 40.

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prescribed by law.27 In addition, the ECtHR had to consider the other requirements. It explained that the conviction pursued a legitimate aim because it was directed at protecting the personality right of Dr. F.28 The remaining question was whether the interference was necessary in a democratic society. The lower courts took into account that the applicants were allowed to communicate their personal opinion and that they addressed questions of public interest.29 By comparing the legal practice of abortion to the Holocaust, the applicants violated Dr. F’s personality right in a serious way. The ECtHR observed that such an expression of opinion, which violates other people’s rights, cannot be detached from the historical and social context in which the statement was made.30 The reference to the Holocaust must also be seen in the specific context of German history.31 Because of these reasons the conviction was necessary in a democratic society, the requirements of Article 10 (2) ECHR were fulfilled. As a result the ECtHR noted that the domestic courts had balanced the personality right of Dr. F and the applicants’ right under Article 10 (1) ECHR appropriately.32 Evaluation: With this line of reasoning the ECtHR confirmed the jurisprudence of the Federal Constitutional Court and clarified that the reasons which have to be discussed during the assessment of a violation of Article 10 ECHR, especially in the context of Article 10 (2) ECHR, cannot be detached from the historical and social context.33 By taking into account the implication of German history, the Federal Constitutional Court did not violate international law – in particular the ECHR; on the contrary, the Court was obliged to have deference to the unique setting of German history. Following this decision, it is still debatable whether a definitive general statement was given on the obligation of domestic courts to consider the social and historical context in which a statement is made. In this context it is important to note, as the ECtHR underlined in its decision, that the applicants’ statement equated the lawful 27

Ibid.

28

Ibid., para. 42.

29

Ibid., para. 46.

30

Ibid., para. 48.

31

Ibid.

32

Ibid., para. 49.

33

Ibid., para 48.

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practice of abortion to the Holocaust.34 It is this point especially that leads to a violation of the doctor’s personality right and a justification of the infringement of the applicants’ right to freedom of expression under Article 10 (2) ECHR. It seems that the ECtHR did not want to give general advice to courts to take national morals, history, or social norms into account in every case. This judgment rather has to be seen in the context of the unique nature of German history35 in light of the Holocaust. This, however, does not lead to the conclusion that this decision is merely another statement “combating racial discrimination in all its forms and manifestations.”36 It is not simply another ECtHR judgment on Holocaust denial37 nor does it lead to the question of the applicability of Article 17 ECHR or whether Article 17 ECHR avoids an application of Article 10 ECHR. In the case of Hoffer and Annen v. Germany the statement of the applicants occurred not in a xenophobic or Nazi context, but was made on the basis of matters of public interest.38 In addressing public interest cases, even the use of exaggerated or polemic criticism is protected by Article 10 (1) ECHR39 because of the importance of the right to freedom of expression for a democratic society.40 In this case, only the ‘Holocaust/Babycaust’ statement missed the scope of Article 10 (1) ECHR as it severely violated the doctor’s personality right. Hence, the decision of the ECtHR in the case of Hoffer and Annen v. Germany has to be understood as a general statement to consider German history in ‘Holocaust’ cases, but not to incorporate national social norms or the historical background in general. Without regard to German history, ‘Holocaust’ would not be understood as a synonym for such cruel unjustifiable crimes. This decision serves as a

34

Ibid., para. 46.

35

See supra, note 8.

36

ECtHR, Jersild v. Denmark, Judgment of 23 September 1994, Series A, No. 298, para. 30.

37

E.g. ECmHR, F.P. v. Germany, Decision of 29 March 1993; id. Walendy v. Germany, Decision of 11 January 1995; id., Remer v. Germany, Decision of 6 September 1995; id., Honsik v. Austria, Decision of 18 October 1995; id., Marais v. France, Decision of 24 June 1996; all available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 6 September 2011). 38

ECtHR, Hoffer and Annen (note 3), para. 44.

39

Ibid., para. 45.

40

Id., Handyside (note 16), para. 49; id., Lingens v. Austria, Judgment of 8 July 1986, Series A, No. 103, para. 41.

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precaution to all State parties to be very sensitive whenever the word ‘Holocaust’ is used and to take the uniqueness of German history into account in such cases.

No Residence Permit after Marriage in Denmark: The Federal Administrative Court in Breach of EU Law? PHILIPP TAMME(

Introduction: In its judgments of 16 November 20101 and 11 January 2011,2 the German Federal Administrative Court (FAC) (Bundesverwaltungsgericht) dealt with two cases on the limits of freedom of movement established under European Union (EU) law. It was mainly disputed whether a third country national (TCN) is entitled to a residence permit in Germany after having entered into a marriage with a German spouse in Denmark. The FAC denied these claims and declined referral to the European Court of Justice (ECJ) for a preliminary ruling. The present article discusses the two cases, gives an overview of the considerations of the FAC and specifically examines whether the pertinent requirements of EU law were met. Facts and Procedure: Both complainants were TCNs, firstly a Belarusian woman and secondly a Russian man, who separately entered Germany with short stay Schengen visas. In 2007 and 2008 respectively, each of them married German nationals in Denmark during short visits. After their return to Germany both consequently applied for residence permits; there was no evidence of sham marriage in either case.3 The German immigration authorities (Ausländerbehörde) refused to grant the requested permits (

Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel.

1

Federal Administrative Court (Bundesverwaltungsgericht), Judgment of 16 November 2010, reprinted in: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 30 (2011), 495, also available at: http:// www.bverwg.de/enid/311?e_view=detail&meta_nr=1509 (accessed on 27 October 2011). 2 Federal Administrative Court, Judgment of 11 January 2011, reprinted in: NVwZ 30 (2011), 871, also available at: http://www.bverwg.de/enid/311?e_view=detail&meta_nr=1654 (accessed on 27 October 2011), and in English translation available at: http://www.bverwg.de/media/archive/8346.pdf (accessed on 27 October 2011). 3

Cf. yet in this respect Federal Administrative Court, Judgment of 22 June 2011, available at: http://www.bverwg.de/enid/311?e_view=detail&meta_nr=2256 (accessed on 27 October 2011), paras. 3 et seq., 14 et seq.; cf. further Art. 35 EC Directive 2004/38 of 29 April 2004, OJ 2004 L 158, 77.

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because, in their view, both complainants intended to abusively circumvent the German visa application procedure. According to the German Residence Act,4 foreign nationals who desire a long-term stay in Germany and are unable to rely on the right of free movement derived from EU law are subjected to this procedure, which usually takes place abroad. After various proceedings before German administrative courts the complainants finally lodged their respective appeal with the FAC. The Judgments of the FAC: In both judgments, the FAC initially analysed whether the complainants could invoke a right of residence under EU law, which, if affirmed, would preclude the applicability of the Residence Act.5 The Court referred in detail to the ECJ’s case law on free movement, especially the ‘returnee cases’.6 According to the ECJ, a TCN spouse of a Union citizen may be entitled to a right of residence in the State of origin of the Union citizen if he or she has previously resided together with the Union citizen in another Member State, regardless of legality.7 These principles are correspondingly applicable to the passive freedom of services (Article 56 (1) TFEU8) and the general right of free movement for Union citizens (Article 21 (1) TFEU),9 in order to ensure the practical validity of EU citizenship. Nevertheless, the ECJ denies the applicability of EU provisions on freedom of move-

4 Residence Act (Aufenthaltsgesetz), 25 February 2008, BGBl. I, 162, as amended on 12 April 2011, BGBl. I, 610. 5

Federal Administrative Court (note 1), paras. 9 et seq.; Federal Administrative Court (note 2), paras. 10 et seq. 6 ECJ, Case C-370/90, R v. Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department, 1992 ECR I-4265, paras. 19 et seq.; id., Case C-291/05, Minister voor Vreemdelingenzaken en Integratie v. R.N.G. Eind, 2007 ECR I-10719, paras. 32 et seq. See also Thomas Giegerich, Kapitel 26, in: Rainer Grote/Thilo Marauhn (eds.), EMRK/GG, Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (2006), paras. 26, 46. 7

Cf. ECJ, Case C-127/08, Blaise Baheten Metock and Others v. Minister for Justice, Equality and Law Reform, 2008 ECR I-6241, paras. 48 et seq.; Astrid Epiney, Von Akrich über Jia bis Metock: zur Anwendbarkeit der gemeinschaftlichen Regeln über den Familiennachzug – Gleichzeitig eine Anmerkung zu EuGH, Urteil vom 25.7.2008, Rs. C-127/08 (Metock), Europarecht (EuR) 43 (2008), 840, 840 et seq. 8 Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (consolidated version). 9

ECJ, Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department, 2002 ECR I6279, paras. 37 et seq.; id., Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v. Secretary of State for the Home Department, 2004 ECR I-9925, paras. 34 et seq., 45 et seq.

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ment to activities confined in all relevant respects within the boundaries of a single Member State.10 The FAC deduced a particular minimum threshold from this case law and stated that a Union citizen needs to exercise freedom of movement for a certain extended period of time before the TCN spouse can acquire the associated right to favoured treatment under EU law.11 Otherwise, in the opinion of the Court, the right of Member States to regulate entry and residence for the TCN spouse or other family members of their own nationals would be largely hollow. In these cases, the respective couples’ brief stays in Denmark were qualified by the FAC as neither substantial nor permanent enough to reach the standard of the necessary transboundary element. Therefore the Court refused to recognise either claim based on EU law and confirmed the applicability of national law. The FAC subsequently examined the cases under German residence law. According to Section 5 (2) cl. 1 Residence Act, the general prerequisites for issuance of a residence permit were not met as the complainants had neither entered Germany with a national visa granted for immigration of a spouse, nor had they supplied the key information required for granting the permit in their visa applications.12 Nevertheless, under specific circumstances foreign nationals may exceptionally be entitled to obtain a residence title in Germany, thereby being exempted from the visa requirement. In the first case, the complainant was prevented from relying on this as there was evidence of her having supplied incorrect information when applying for a visa, making expulsion possible.13 Thus her claim for a residence permit was ultimately dismissed by the FAC.14 In the second case it was problematical that the complainant’s marriage to his German wife occurred in Denmark before his last entry into Germany: Section 39 (3)

10

ECJ, Blaise Baheten Metock and Others (note 7), para. 77; id., Case C-212/06, Government of the French Community and Walloon Government v. Flemish Government, 2008 ECR I-1683, paras. 33, 39. 11

Federal Administrative Court (note 1), paras. 12 et seq.; Federal Administrative Court (note 2), paras. 13 et seq. 12 Federal Administrative Court (note 1), paras. 18 et seq.; Federal Administrative Court (note 2), paras. 18 et seq. 13

See Section 5 (1) No. 2, Section 55 (2) No. 1 Residence Act.

14

Federal Administrative Court (note 1), paras. 21 et seq.

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Residence Regulation (Aufenthaltsverordnung)15 only allows issuance of a residence title in Germany for the holder of a valid Schengen visa if prerequisites for issuance arise after he enters the country, and not before.16 The FAC found that this unfavourable treatment of marriages entered into in other EU Member States compared to those entered into in Germany was lawful under both the German Constitution and EU law. Considering the equality clause in Article 3 (1) Basic Law17 the Court stressed specific control mechanisms of German family law designed to prevent sham or multiple marriages.18 Concerning EU law (see Article 21 (1) TFEU), it considered the unequal treatment justified by the legitimate national interest in having effective administrative control capabilities, given that preventive control of residence prerequisites resulted only in proportionate delay to conjugal cohabitation.19 Thus the complainant’s appeal in the second case was also unsuccessful. Despite the references to EU law, the FAC saw no reason to initiate a preliminary ruling procedure at the ECJ. Evaluation of Conformity with EU Law: The assessment of the cases under EU law depends on the complainants’ possible entitlement to a German residence permit on the basis of their spouses’ free movement rights. As the Union citizens’ right to free movement is established in Article 21 (1) TFEU independently from economic context, the FAC was free not to examine the material content of the passive freedom of services in Article 56 (1) TFEU.20 Regarding both provisions, the existence of a sufficient transboundary element is undoubtedly required, as outlined in the case law of the ECJ.21 Therefore the refusal of the FAC to recognise the present marriages in

15

Residence Regulation (Aufenthaltsverordnung), 25 November 2004, BGBl. I, 2945, as amended on 22 July 2011, BGBl. I, 1530, 2080. 16 Pursuant to the constant case law of German administrative courts, the provision refers to the last entry into German territory; see Federal Administrative Court (note 2), para. 25, with further references. 17 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. I, 1, as amended on 21 July 2010, BGBl. I, 944. 18

Federal Administrative Court (note 2), para. 28.

19

Federal Administrative Court (note 2), paras. 29 et seq.

20

See Federal Administrative Court (note 1), para. 12; Federal Administrative Court (note 2), para. 13; Wolfram Cremer, Passive Dienstleistungsfreiheit und Freizügigkeit oder Heirat in Dänemark für ein Leben in Deutschland, NVwZ 29 (2010), 494, 497. 21

ECJ, Cases C-64/96 and C-65/96, Land Nordrhein-Westfalen v. Kari Uecker and Vera Jacquet v. Land Nordrhein-Westfalen, 1997 ECR I-3171, paras. 16 et seq., 22 et seq.; id., Government of the French Community and Walloon Government v. Flemish Government and Blaise Baheten Metock and Others v.

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Denmark as a relevant exercise of freedom of movement is tenable under substantive free movement law.22 The European Commission further focussed on avoiding abuse of EU law and generally postulated that Union citizens should have established genuine and effective residence in the other Member State before they were able to rely on free movement rights.23 Nonetheless, it must be recognised that binding interpretation of EU law is monopolised at the ECJ.24 This exclusive attribution of competence aims to ensure uniform interpretation and application of EU law as well as effective legal protection of individuals throughout the EU.25 Consequently, last-instance national courts are obliged under Article 267 (3) TFEU to refer relevant questions of EU law to the ECJ for a preliminary ruling. However, this is not the case where previous decisions of the ECJ have already settled the point of law in question (acte éclairé) or where the correct application of EU law is so obvious that no reasonable doubt persists for national courts or the ECJ (acte clair).26 In the present cases the FAC, being a court of last instance, mainly relied on the latter to justify its decision not to bring disputed questions before the ECJ.27 Even at first glance this approach is astonishing; EU free movement law constitutes a highly controversial field of law in which the ECJ has often rendered judgments on a case-

Minister for Justice, Equality and Law Reform, loc. cit. (note 10); Ferdinand Wollenschläger, Grundfreiheit ohne Markt (2007), 157 et seq. 22

See supra; consenting Cremer (note 20), 496 et seq.

23

COM(2009) 313 final, 2 July 2009, 17 et seq.

24

Cf. Art. 19 (1) subpara. 1 cl. 2 Treaty on European Union (TEU), 30 March 2010, OJ 2010 C 83, 13 (consolidated version); see also Patricia Thomy, Individualrechtsschutz durch das Vorabentscheidungsverfahren (2009), 47. 25

ECJ, Case 166/73, Rheinmühlen Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1974 ECR 33, para. 2; id., Case 107/76, Hoffmann-La Roche v. Centrafarm, 1977 ECR 957, para. 5; id., Case C-495/03, Intermodal Transports BV v. Staatssecretaris van Financiёn, 2005 ECR I8151, para. 29; Thomy (note 24), 47 et seq.; Klaus-Dieter Borchardt, Art. 267 AEUV, in: Carl Otto Lenz/Klaus-Dieter Borchardt (eds.), EU-Verträge (2010), paras. 1 et seq.; Sacha Prechal, National Courts in EU Judicial Structures, Yearbook of European Law (YEL) 25 (2006), 429, 431. 26 ECJ, Case 283/81, CILFIT v. Ministero della Sanità, 1982 ECR 3415, paras. 13 et seq.; id., Intermodal Transports BV v. Staatssecretaris van Financiёn (note 25), para. 33. 27

Federal Administrative Court (note 1), para. 13; Federal Administrative Court (note 2), paras. 14 and (explicitly) 32.

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by-case basis without giving clear general guidelines.28 The same applies to the case law of the ECJ on the necessary intensity of the transboundary element required for the applicability of EU free movement law. On the one hand, the ECJ tends to consider the guarantee of free movement as a general ban on restrictions.29 For instance, in order to protect genuine enjoyment of Union citizenship rights, the ECJ grants a minor Union citizen’s TCN parent a right to reside in the host Member State with the minor30 even if the minor has never exercised free movement rights.31 On the other hand, the ECJ held in a recent judgment that the refusal of a right of residence to a Union citizen’s TCN spouse does not violate the Union citizen’s free movement rights if the Union citizen has not exercised them before.32 Here, the standard of protection against indirect coercion on a Union citizen to leave the Member State of which he or she is a national is relativised with the general principle that a Member State is precluded from refusing its own nationals right of residence on its territory.33 The immediate cases differ from this as the German Union citizens have in fact left their home Member State and changed their family status in another Member State. Thus, under the presented heterogeneous case law, and further under the partial case law then available to the FAC, the legal situation governing the given facts can hardly be seen as obvious. 28

Cf. Wollenschläger (note 21), 292.

29

ECJ, Case C-406/04, Gérald De Cuyper v. Office national d’emploi, 2006 ECR I-6947, paras. 39 et seq.; id., Case C-192/05, K. Tas-Hagen and R.A. Tas v. Raadskamer WUBO van de Pensioen- en Uitkeringsraad, 2006 ECR I-10451, paras. 31 et seq.; id., Cases C-11/06 and C-12/06, Rhiannon Morgan v. Bezirksregierung Köln and Iris Bucher v. Landrat des Kreises Düren, 2007 ECR I-9161, paras. 25 et seq., 32 et seq.; id., Case C-499/06, Halina Nerkowska v. Zakład Ubezpiekzeń Społecznych Oddział w Koszalinie, 2008 ECR I-3993, paras. 32 et seq.; Wollenschläger (note 21), 297 et seq.; Anders Leopold/Constanze Semmelmann, Civis europaeus sum, Gewährleistungen und Grenzen der Freizügigkeit der Unionsbürger, Zeitschrift für Europarechtliche Studien (ZEuS) 11 (2008), 275, 288 et seq.; Winfried Kluth, Art. 21 AEUV, in: Christian Calliess/Matthias Ruffert (eds.), EUV/AEUV (2011), para. 6. 30

ECJ, Kunqian Catherine Zhu and Man Lavette Chen v. Secretary of State for the Home Department (note 9), paras. 45 et seq. 31

ECJ, Case C-34/09, Gerardo Ruiz Sambrano v. Office national d’emploi (ONEm), reprinted in: NVwZ 30 (2011), 545, paras. 40 et seq. 32 ECJ, Case C-434/09, Shirley McCarthy v. Secretary of State for the Home Department, reprinted in: NVwZ 30 (2011), 867, paras. 44 et seq. 33

Ibid., paras. 29, 50, with reference to, inter alia, Art. 3 Protocol No. 4 to the European Convention on Human Rights.

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Moreover, the required intensity of the transboundary element is not assessed uniformly by national courts: in a decision of January 2009, the Freiburg Administrative Court (Verwaltungsgericht Freiburg) considered the applicability of EU law after a marriage in Denmark possible.34 In May 2011, the Austrian Supreme Administrative Court (Verwaltungsgerichtshof) lodged a reference for a preliminary ruling concerning, inter alia, if and under which conditions a Member State may refuse a right of residence to a Union citizen’s TCN spouse on whom the Union citizen is not dependent for his or her subsistence.35 Taken together, these cases definitively show that the correct application of EU law was not beyond reasonable doubt in the cases at hand; the acte clair criteria were not fulfilled. By deciding relevant EU law questions autonomously, the FAC violated its obligation of referral to the ECJ under Article 267 (3) TFEU. Similar doubts can be raised in the further issue of EU law that was solely relevant in the second case: the lawfulness of German rules privileging marriages entered into in Germany compared to marriages entered into abroad. A Union citizen’s TCN spouse in the latter situation cannot obtain a residence permit issued in Germany, but is subjected to the visa procedure carried out abroad (see supra). Under EU law, Member States are precluded from treating nationals having availed themselves of facilitated freedom of movement less favourably because facilitated freedom of movement cannot be fully effective if a national of a Member State may be prevented from exercising it by disadvantageous national regulations.36 The FAC therefore correctly argued that such differentiation under German law needs to be justified by a legitimate aim, identified by the Court to be interest in effective control capabilities (see supra). The necessity requirement seems to allow an evaluation of the right of residence if this has not been carried out in the State where the marriage occurred. The crucial question is, however, whether this evaluation must take place outside Ger34

Freiburg Administrative Court (Verwaltungsgericht Freiburg), Decision of 20 January 2009, Case No. 1 K 2359/08, available at: http://www.asyl.net/fileadmin/user_upload/dokumente/15509.pdf (accessed on 6 November 2011). 35

ECJ, Pending Case C-256/11, Murat Dereci et al. v. Bundesminister für Inneres, reference lodged on 25 May 2011, OJ 2011 C 219, 11. 36

ECJ, Case C-224/98, Marie-Nathalie D’Hoop v. Office national d’emploi, 2002 ECR I-6191, paras. 29 et seq.; id., Case C-224/02, Heikki Antero Pusa v. Osuuspankkien Keskinäinen Vakuutusyhtiö, 2004 ECR I-5763, paras. 17 et seq.; cf. also id., R v. Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (note 6), para. 23.

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many, as all relevant conditions are apparently easily checked in Germany on the occasion of a marriage entered into there. If the TCN spouse has already entered Germany, prior evaluation can hardly be essential to the interests of national security. Furthermore, the evaluation procedure is rendered more complicated and less effective if the foreign spouse must first leave the country. These aspects indicate a lack of proportionality of the German legislation under EU law; the correct application of EU law is far from obvious. The FAC should have asked the ECJ to specify the exigencies of Article 21 (1) TFEU which national law has to satisfy. Again, the FAC disregarded its duty to initiate a preliminary ruling in Luxembourg. Options for Further Legal Protection: It remains to be analysed what legal protection is open to the complainants if they wish to take action against the violations of Article 267 (3) TFEU by the FAC. In Germany, individuals may file a constitutional complaint (Verfassungsbeschwerde) to the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) arguing that the refusal of a domestic last-instance court to refer a case to the ECJ infringes the basic right to a lawful judge guaranteed in Article 101 (1) cl. 2 Basic Law.37 However, the FCC has only found a breach of this provision where the last-instance court has arbitrarily refrained from a referral to the ECJ38 and does not provide full protection against every violation of Article 267 (3) TFEU, although this is required by several principles of German constitutional law.39 The FCC considers an omitted referral arbitrary if the competent last-instance court (1) does not consider asking the ECJ a relevant question, (2) intentionally deviates from the established case law of the ECJ or (3) unjustifiably exceeds its own scope of discretion.40 The third criterion is not sub37

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 73, 339, 366 et seq.; id., BVerfGE 75, 223, 233 et seq.; id., BVerfGE 82, 159, 192; id., Decision of 9 January 2001, reprinted in: Neue Juristische Wochenschrift (NJW) 54 (2001), 1267, 1268. 38

Id., BVerfGE 73, 339, 366; id., Decision of 9 November 1987, reprinted in: NJW 41 (1988), 1456, 1456 et seq.; id., BVerfGE 82, 159, 194 et seq. 39 See in the Basic Law Art. 23 (1) cl. 1 in conjunction with cl. 1 Preamble (principle of openness towards European law) and Art. 20 (3) (principle of the rule of law including effective legal protection) as well as the case law of the FCC itself: Federal Constitutional Court, BVerfGE 123, 267, 346 et seq.; id., BVerfGE 107, 395, 406 et seq. Cf. Alexander Proelss, Enforcement of the Obligation to Refer to the European Court of Justice Under Article 267 (3) TFEU, GYIL 53 (2010), 927, 930, 932 et seq.; Ulrich Fastenrath, BVerfG verweigert willkürlich die Kooperation mit dem EuGH, NJW 62 (2009), 272, 275. 40

Federal Constitutional Court, BVerfGE 82, 159, 195 et seq.; id., Decision of 7 December 2006, reprinted in: NJW 60 (2007), 1521, 1521.

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stantiated uniformly by the FCC. It traditionally applies to situations where other opinions are clearly preferable to the interpretation of substantive EU law put forward by the last-instance court.41 Yet, since 2010 the First Senate of the FCC has held that the last-instance court transgresses its discretion if it does not comprehensibly explain that no duty of referral existed.42 In the immediate cases, the complainants could only succeed under the newer jurisprudence because, while the FAC mainly interpreted substantive free movement law plausibly, it did not convincingly show why it should be exempt from the duty of referral. The outcome at the FCC cannot however be definitely foreseen, as the exact definition of the ‘comprehensible’ explanation to be given by the last-instance court is still unclear. At any rate, the FCC can only conform to German constitutional law by fully reviewing every violation of Article 267 (3) TFEU. Additionally, the European Court of Human Rights (ECtHR) can contribute to the enforcement of EU Law.43 Even though the European Convention on Human Rights44 (ECHR) does not guarantee, as such, any right to have a case referred to the ECJ for a preliminary ruling, the ECtHR recognises that the refusal of a request for such a reference may infringe the fairness of proceedings under Article 6 (1) ECHR if it appears to be arbitrary.45 In a judgment of September 2011, the Strasbourg Court 41 Id., Decision of 9 November 1987 (note 38), 1457; id., Decision of 6 December 2006, reprinted in: NVwZ 26 (2007), 197, 198; id., BVerfGE 126, 286, 317. 42

Id., Decision of 25 February 2010, reprinted in: NJW 63 (2010), 1268, 1269, paras. 20 et seq.; similarly id., Decision of 30 August 2010, reprinted in: NJW 64 (2011), 288, 288 et seq., para. 48; id., Decision of 10 November 2010, reprinted in: Zeitschrift für Urheber- und Medienrecht (ZUM) 55 (2011), 236, 238, para. 23; id., Decision of 25 January 2011, reprinted in: NJW 64 (2011), 1427, 1431, paras. 104 et seq.; Proelss (note 39), 931 et seq.; Matthias Bäcker, Altes und Neues zum EuGH als gesetzlichem Richter, NJW 64 (2011), 270, 270 et seq. 43 Philipp Tamme, Aspects of enforcement of European Community law by the European Court of Human Rights (2009), available at: http://www.europeanpubliclaw.eu/contenuti/summer-school/ 2009/Tamme-Enforcement-of-EC-law-by-ECHR.pdf (accessed on 6 November 2011); Marten Breuer, Der Europäische Gerichtshof für Menschenrechte als Wächter des europäischen Gemeinschaftsrechts, Juristenzeitung (JZ) 58 (2003), 433, 433 et seq. 44

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5. 45

See, for example, ECtHR, John v. Germany, Decision of 13 February 2007, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 11 November 2011), reprinted in: Europäische Grundrechte-Zeitschrift (EuGRZ) 35 (2008), 274, 276; id., Matheis v. Germany, Decision of 1 February 2005, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 11 November 2011), id., Bakker v. Austria, Decision of 13 June 2002, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 11 November 2011).

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has precisely determined and thereby tightened its standard of arbitrariness by holding that a refusal of referral violates Article 6 (1) ECHR if it is not duly motivated according to the applicable law, including the pertinent case law of the ECJ.46 Regarding the present cases, however, it has to be taken into account that Article 6 (1) ECHR is not applicable in the context of immigration law as this entails no determination of civil rights or obligations or criminal charge.47 For this reason, the complainants cannot expect to lodge a successful application at the ECtHR. On the whole, the current legal protection available to enforce the duty of referral to the ECJ is relatively weak, especially on the EU level; individuals may merely encourage, yet not force, the European Commission to initiate treaty violation proceedings against the Member State concerned.48 Thus individuals should be provided with a direct legal remedy to the ECJ in order to improve their protection against violations of Article 267 (3) TFEU.49 As the primary institution with competent jurisdiction in matters of EU law, the ECJ would then be able to react effectively to breaches of the duty of referral committed by unwilling national courts. Conclusion: Generally, the FAC has elaborated comprehensible arguments to why the complainants were not entitled to German residence permits after the marriages. Whether the motivation set forth complies with substantive European free movement law cannot be conclusively evaluated; the legal situation is not sufficiently clear regarding both the intensity of the required transboundary element as well as the assessment of the privileged treatment of marriages entered into in Germany. The FAC therefore violated Article 267 (3) TFEU by abstaining from a preliminary

46 ECtHR, Ullens de Schooten and Rezabek v. Belgium, Judgment of 20 September 2011, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 7 November 2011), paras. 59 et seq. 47

ECtHR [GC], Maaouia v. France, Judgment of 5 October 2000, RJD 2000-X, 273, paras. 35 et seq.; ECtHR, Lupsa v. Romania, Judgment of 8 June 2006, RJD 2006-VII, 349, para. 63. 48 ECJ, Case 247/87, Star Fruit v. Commission, 1989 ECR 291, paras. 11 et seq.; id., Case C-422/97 P, Sateba v. Commission, 1998 ECR I-4913, para. 42. 49

Cf. Nina Philippi, Die Charta der Grundrechte der Europäischen Union (2002), 53 et seq.; Thomas Giegerich, Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozeß: Wechselseitige Rezeption, konstitutionelle Evolution und föderale Verflechtung (2003), 1045 et seq.; Maria Brakalova, Wege zur Reformierung der Europäischen Verfassungsgerichtsbarkeit unter besonderer Berücksichtigung der Osterweiterung und der Erfahrungen in ‘losen’ Föderationen (2008), 311 et seq.; Reinhard Bork, Gerichtsverfassung und Verfahrensstrukturen in Deutschland, Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ) 66 (2002), 327, 354 et seq.

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ruling procedure. As the present legal protection against breaches of the duty of referral is insufficient, a new legal remedy should be introduced granting individuals access to the ECJ.

BOOK REVIEWS

Piet Eeckhout: EU External Relations Law. Second Edition, Oxford University Press, Oxford 2011, xlix + 572 pages, ISBN 978-0-19-960663-4. Seven years after the first edition and more than a year after the entry into force of the Treaty of Lisbon which considerably changed the relevant treaty provisions, the second edition of this leading treatise on the “legal foundations of the EU’s foreign policy” (4) has emerged under a shortened title in the Oxford EU Law Library. The aim of this series is to publish important studies that provide “a clear, concise, and original critical exposition of the law in its social, economic, and political context” (ii). The reviewer is happy to state at the outset that Eeckhout’s work fully accomplishes its ambitious mission in an area of law which straddles the boundary between ‘internal’ EU law and ‘external’ public international law. Today “[t]here appears to be virtually no significant area of international law-making in which the EU cannot participate” (189). The author is right to point out that the primary importance of this topic “is for the developing identity of the EU as a whole. The organization of the external relations of the EU and its Member States is crucial for the unique type of federalism which Europe is constructing” (7). Utopians are still wondering whether the current acquis of EU federalism with its international law elements (due to the fact that the Member States alone are sovereign) may after all be a transitional stage of a supranational entity gradually mutating into the sovereign United States of Europe. In the Introduction, the author explains the subject matter and methodology of the book as well as the differences to the first edition. The author’s aim is to bring together “the various strands of EU external action” (4). This is difficult because EU external action occurs both within the supranational system of the TFEU (such as the external trade aspect of the common commercial policy under Article 207 TFEU and the development co-operation under Articles 208–211 TFEU) and the intergovernmental system of the Common Foreign and Security Policy (CFSP) proper under Articles 21–46 TEU. Although the Treaty of Lisbon formally abandoned the pillar structure that had been introduced by the 1992 Treaty of Maastricht, the intergovernmental regime of the former Second Pillar still governs the CFSP. Eeckhout argues that this is partly due to the intention of at least some Member States to continue the traditional executive dominance over foreign policy (170). In contrast to this, the former First and Third Pillars have been completely fused into the supranational regime of the former European Community that became the standard regime of the EU as the EC’s successor (Article 1 (3) cl. 3 TEU). Against this background, it remains to be seen whether the Treaty of Lisbon succeeds in maintaining consistency in the EU’s foreign policy by institutional precautions. One of these is the ‘double-hatted’ position of the High Representative for Foreign Affairs and Security Policy, as one of the Vice-Presidents of the European Commission, and the chairperson of the Foreign Affairs Council assisted by the European External

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Action Service (186–188, 491–496). In any event, the EU has in a growing number of areas become a global player to reckon with, most notably within the WTO. As the author explains in the Introduction (chapter 1), the aim is “to identify the legal, indeed constitutional, foundations of [EU] external relations,” in particular the powers expressly and impliedly conferred on the EU and their delimitation from the remaining powers of the Member States, the involvement of the various EU institutions in the foreign policy decision-making process, the relationship between EU law and public international law, and the latter’s effect within the sphere of EU law (5). The book accordingly consists of three parts: part I (chapters 2–5 ( 9–189)) deals extensively with the treaty (or constitutional) foundations (competences and objectives) of EU external action. Part II (chapters 6–9 (191–436)) elaborates on the international foundations of the EU’s external action: the treaties of the EU with third States and other subjects of international law, the mixed agreements of the EU and the Member States with third parties, including membership of international organisations, and the general norms of international law that bind the EU (customary international law and the general principles of law in the sense of Article 38 (1)(b), (c) ICJ Statute). Chapter 9 is devoted to set out the legal effects of international law within the legal order of the EU. The first two parts of the book are comprehensive, whereas part III (chapters 10–12 (437–548)) selectively examines only three of the EU’s substantive external policies, the common commercial policy (the historical core of the EU’s external action), the CFSP (this selection is self-explanatory) and the economic and financial sanctions policy (where the trade policy and foreign policy of the EU are fused into a still imperfect synthesis with UN law and international human rights law). The purpose of part III is “to put some flesh on to the bones of constitutional and institutional developments, and to improve the understanding of those developments” (6). Unfortunately, the author dropped the chapter on the EU’s external human rights policy from part III which had filled twenty pages in the first edition. Eeckhout invokes the necessity not to expand the book too much and the fact that the human rights policy was relatively less important and had not developed much in recent years (7). However plausible these arguments may be, this decision is regrettable because the advancement of universal and indivisible human rights and fundamental freedoms remains a prominent component of the EU’s external action (Articles 3 (5), 21 (1) TEU). The Union is expressly charged with striving to consolidate and support democracy, the rule of law and human rights by its external action (Article 21 (2)(b) TEU). Perhaps this task needs henceforth to be taken more seriously. The author, however, extensively deals with one of the most difficult human rights issues ever to come before the ECJ: the judicial review of individualised (‘smart’) UN sanctions and their faithful (‘copy and paste’) implementation within the EU through a Regulation in the Kadi Case and related cases. There the Court engaged in what in substance amounted to the ‘projection’ of EU human rights standards onto the UN Security Council (401–421, 519–528). One minor inaccuracy that occurred in this context should be corrected: The UN Charter is not a pre-accession agreement in the sense of Article 351 TFEU for all Member States (401), the one exception being Germany which is a founding member of the European Communities but – due to its special international status between 1945 and the reunification in 1990 – acceded to the UN only in 1973 (as two States).

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In the Kadi Case, the ECJ, differing in its interpretation from the Court of First Instance, reviewed a Regulation that had literally transposed individualised UN Security Council sanctions into EU law by using the ordinary standards of EU fundamental rights law which were obviously not met. Eeckhout applauds the ECJ’s approach and defends it against criticisms of parochialism and Euro-centrism, pointing out that the human rights standards used by the ECJ parallel those set forth on the UN level by the ICCPR. Eeckhout could also have cited Articles 24 (2), 1 (3) UN Charter which expressly oblige the UN Security Council to respect human rights and fundamental freedoms when discharging its duties with regard to the maintenance of international peace and security (see 417). In the Kadi Case, the ECJ obviously felt the need to demonstrate its commitment to the effective protection of fundamental rights and in particular the essence of the right to be heard, the right to a remedy, and the right to property of those targeted by the Security Council’s sanctions resolution. Otherwise the national courts such as the German Federal Constitutional Court might have intervened to protect the national constitutional identity (Article 4 (2) TEU) that includes the most essential fundamental rights. It should also be borne in mind that since the Kadi judgment made it impossible for EU Member States to fulfil their obligations under the UN Charter via the EU, it raised the possibility of at least some of them flouting the EU’s exclusive competence and unilaterally transposing the pertinent Security Council resolution into national law on the basis of Article 347 TFEU. Fortunately, this going-it-alone scenario has not become a reality. Rather, the Kadi judgment has had at least two positive consequences: the Sanctions Committee of the UN Security Council ultimately struck Kadi off the list of suspected supporters of international terrorism. More importantly, the Security Council improved the de-listing process considerably, creating an independent and impartial Ombudsperson to whom the targets of individualised sanctions can submit their de-listing request. Although the Ombudsperson’s mandate was extended by Security Council Resolution 1989 of 17 June 2011, the protection provided still falls far short of the ‘effective (judicial) remedy’ requirement of international human rights law (Articles 2 (3), 14 (1) ICCPR; Articles 6 (1), 13 ECHR). As Eeckhout points out, the General Court (as the Court of First Instance is now called) has meanwhile reluctantly adopted the strict review standards of the ECJ with regard to individualised sanctions but not without inviting the latter to reconsider its approach in view of the criticism raised against it (Kadi II (523–528)). It is unlikely that the Court of Justice of the EU (as the ECJ is now called) will accept that invitation and go back on its bold move. One could also have mentioned an individualised sanctions case from Switzerland, where the Swiss Federal Court engaged in a restrictive review not dissimilar to the one of the Court of First Instance in Kadi, which has made its way up to the Grand Chamber of the European Court of Human Rights (Nada v. Switzerland, hearing held on 23 March 2011). It remains to be seen whether the Strasbourg Court follows the Kadi approach of the ECJ. Whereas the ECJ highlighted the autonomy of EU law vis-à-vis international law in Kadi, the ECtHR has continuously underlined that the Convention was part of the wider international legal order and should be interpreted accordingly. The Strasbourg Court has not yet had to elaborate on the legal consequences of Article 103 UN Charter, having been able to avoid the issue in the Al-Jedda Case.

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Throughout the book, the author relies heavily on the case law of the EU courts which Eeckhout traces in its evolution and in depth analyses. In the area of external relations of the EU, the Luxembourg jurisprudence undoubtedly laid the groundwork for the current acquis at a time when the pertinent treaty provisions were sketchy at best. Most important were the decisions on the European Economic Community’s implied power to conclude international treaties (beginning with the AETR Case (70–119)) and the conditions under which the EEC’s foreign relations power assumed an exclusive character, leaving the Member States no room to engage in external action of their own (beginning with the Opinion 1/75 (13–18)). Much of that jurisprudence has meanwhile been codified in the context of later treaty revisions (such as in the current Article 216 (1) TFEU on the treaty-making power of the EU); it continues to provide the relevant interpretative background of the treaty provisions now in force. The author’s evolutionary approach is therefore fully justified (see e.g. 167). Eeckhout does not always approve the Luxembourg jurisprudence. One counterexample is the settled case law that denies direct effect to WTO law even after an adverse ruling of the Dispute Settlement Body has definitely established that a certain EU act violates WTO law (375–381). The author expresses the hope that the Court of Justice will by contrast submit to the decisions of the European Court of Human Rights once the EU has acceded to the European Convention on Human Rights. Eeckhout mentions only in passing that accession – which the EU is bound to put into effect with all deliberate speed (Article 6 (2) TEU) – though it constitutes one of the major challenges of the coming years for the EU, the Member States, and the Convention system. Unsurprisingly, the negotiations with the Council of Europe have not yet been concluded. In Article 218 (8)(2) cl. 2 the TFEU does not only require unanimity in the Council for the decision on the accession agreement but also the ratification of that decision by all the Member States in accordance with their constitutional requirements. Such a uniquely complicated treaty-making procedure indicates the great constitutional significance of that move (202), but it certainly is a recipe for long delays, notably since not all the Member States are particularly enthusiastic about the EU’s accession to the Convention. Further delays will be caused if an opinion of the Court of Justice is requested as to whether the envisaged accession agreement between the EU and the Convention States is compatible with the Treaties (Article 218 (11) TFEU). In the 1996 Opinion 2/94 re Accession to the ECHR the Court had already been asked whether the accession would be compatible with (current) Article 19 (1) TEU and Article 344 TFEU relating to the ECJ’s own jurisdiction, but refused to answer that question because the concrete arrangements concerning the submission of the EU to the Strasbourg control machinery were unknown at that time (97, 234). Eeckhout does not find this reasoning entirely convincing because the general institutional consequences of the accession were clear (271–272). The reviewer thinks that if that question were put before the Court together with the detailed accession agreement currently being worked out, the Court could no longer avoid answering it. Finally, the accession agreement will have to be ratified by the other twenty States parties to the ECHR that are not simultaneously Member States of the EU, since that agreement necessarily modifies Articles 19 et seq. ECHR. That could take years if one ventures an extrapolation from the difficult ratification process of Protocol No. 14 which the reviewer remembers well.

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From the early days of the European Economic Community, a continuous struggle between the Member States (or the Council) and the EU (or the Commission and the European Parliament) on the proper distribution of the foreign relations power has run like a thread through the development of both the case law and treaty amendments. The most noteworthy outcome of that struggle is the strengthening of the position of the European Parliament (Article 218 (6), (10) TFEU), quite parallel to many other areas (“Copernican revolution” – 57 (with regard to the common commercial policy)) – but there are still unnecessary gaps with regard to parliamentary participation (Article 219 (3) TFEU – 207; Article 218 (9) TFEU – 209). The author sees no convincing arguments against even greater parliamentary involvement in the process of negotiating and concluding international agreements (210). Eeckhout describes those controversies as “a big legal battlefield, due to the reluctance, resistance, and inhibitions of the Member States to cede sovereignty to the EU” (5). Taking up this martial language, series general editor David Anderson in the foreword speaks of the book’s partial function of “a definitive military history of that forty years’ war” between the European Commission and the Member States (v). The struggle is far from over. According to recent press reports, the newest battleground is the voting in the International Monetary Fund: while the Commission wants the Euro area Member States to speak there with one voice, the latter are reluctant to give up their individual votes. The author is right to underline “the significant political dimension of these legal battles, so closely interwoven with the classical struggle between supranationalism and intergovernmentalism” (13 (with regard to the foreign trade powers)). Everywhere beneath the procedural surface, there are important constitutional and institutional issues (193). For an observer from another planet the contradiction between the obvious dictates of rationality for the Member States and their tenacious clinging to false illusions of autonomous decision-making power would seem striking. Obviously the small and medium-size States that constitute the EU can only maintain significant influence on world affairs if they unite their strengths and speak with one voice internationally, as they do within the WTO. Yet, they like to believe that they still dispose of effective sovereign decision-making power individually, while in reality each of them increasingly retains no more than the sovereign right of ‘voluntarily’ accepting and transposing decisions made elsewhere (often enough outside Europe). Nevertheless, the EU citizens’ attachment to the closer community of their Member States must be reckoned with: in the context of European integration, ‘rational’ progress has more than once been prevented when reluctant populations in various Member States cast no-votes at referendums on treaty reform because they were (rightly or wrongly) afraid of losing out to a distant bureaucracy in Brussels. On the other hand, opinion surveys indicate that the European peoples are well aware of the added value which a truly effective Common – which inevitably means supranational – Foreign and Security Policy of the EU would produce. The supranationalisation of the CFSP would, however, constitute a giant step toward a European federal State that the European peoples in their majority are not (yet) ready to accept. This seems to be an attempt of having it both ways. The practical compromise for merging the partial external competence of the EC/EU and the remaining sovereignty of the Member States has for a long time consisted in the conclusion of mixed agreements in which both the EU and all the Member States join, and even mixed memberships in international organisations (with regard to the WTO). ‘Mixity’ is indeed a hallmark of the EU’s external relations (211). It poses many problems, e.g. with regard to the

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distribution of international responsibility on the EU and the Member States (262–264). Yet one could add that in the judgment on the constitutionality of the Treaty of Lisbon, the German Federal Constitutional Court ventured the proposal that the WTO model of mixed membership of both the EU and the Member States could be a model for other international organisations (para. 376). After thoroughly assessing the previous EU practice, Eeckhout is more sceptical about the virtues of ‘mixity’, pointing out that it required the exact definition of competences with regard to every item on the agenda of every meeting of the representative organ of an international organisation which was “no doubt an ideal recipe for malfunctioning” (212 et seq., 229). This is so despite the reciprocal duty of co-operation of the EU and the Member States which the author elaborates in detail (241–255). Eeckhout comes to the conclusion that the advantages of ‘mixity’ are outweighed by the disadvantages (264–266). Specifically regarding WTO membership, one must remember that not much has been left of ‘mixity’ after the entry into force of the Treaty of Lisbon: the EU now has exclusive competence for all WTO matters except for transport (231). In the aforementioned judgment, the FCC brushed aside the idea that the Member States’ WTO membership had become obsolete. The Treaty of Lisbon did not in any event force Germany to give up its formal membership status so that it had remained a sovereign State, particularly since future trade negotiation rounds could result in amendments to the WTO Agreement in areas for which the Member States and not the EU were competent (para. 375). If, in an alternative scenario, the EU became exclusively competent also for transport one day, the EU would indeed be called upon to exercise all the membership rights in the WTO and thus completely supersede Member States’ membership. This would be a case of functional succession of the EU to the Member States quite analogously to the ECJ’s holding in the International Fruit Company Case of 1972 that concerned the functional succession of the EEC to its Member States’ GATT membership (397). Since it is too early to finally evaluate the changes brought about to the external relations law of the EU by the Treaty of Lisbon, the author feels unable to offer more than a snapshot of an area where the law is very much in motion (7). As a matter of fact, Eeckhout provides soundly argued preliminary assessments, pointing out the direction in which the practice of the EU institutions, including the Court of Justice, should and/or is likely to take the law. Series general editor David Anderson in the foreword aptly writes of the author’s impressive “shrewdness in identifying future causes célèbres” in the Court of Justice (v). To give just a few examples, Eeckhout proposes to pacify the long battle over the correct legal basis of external relations acts with both environmental and trade components (57). He refutes the European Commission’s attempt to derive an implied exclusive EU competence to regulate and thus conclude treaties on portfolio investments from third States (149–151). He characterises the EU’s CFSP competence as neither exclusive nor shared but rather sui generis (167, 171–172). Eeckhout interprets Article 218 (3) TFEU as requiring the Council to nominate the Commission as the EU’s negotiator with regard to all treaties that do not exclusively or principally relate to the CFSP, in accordance with previous practice (196). The author approves the Framework Agreement on relations between the European Parliament and the European Commission of 20 October 2010 which strengthens the influence of the Parliament on the negotiation of international agreements, referring to the principle of representative democracy embodied in Article 10 TEU (199–200). Here and there some more information could have

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been given (for instance with regard to the interpretation of Article 218 (6)(a)(iii) TFEU on which there is only a statement saying that its scope is ill-defined – 204). From the perspective of the rule of law which holds a prominent position in the EU’s list of fundamental values (Articles 2, 21 TEU), the most disturbing feature of the CFSP that the Treaty of Lisbon has left un-repaired is its almost complete exclusion from the jurisdiction of the Court of Justice (Article 275 TFEU). One wonders whether the framers’ prime motive was the preservation of a de facto (although not de jure) law-free area of political decision-making or rather the elimination of any possibility for the Court to introduce supranational elements into the strictly intergovernmental CFSP. In any event, the author rightly underlines that the exclusion of the Court’s jurisdiction over CFSP decisions constitutes a breach in the EU’s foundational principle that the law should rule. This is because pursuant to the settled jurisprudence of the Court since Les Verts v. European Parliament of 1986, the rule of law implies that all acts of the institutions are subject to judicial review as to their conformity with the organisation’s constitution, i.e. the Treaties (479). In the Kadi judgment, the ECJ even emphasised that the protection of fundamental rights, including the judicial review of the lawfulness of EU measures as regards their consistency with those fundamental rights, was part of the constitutional foundations of the Union and that the (paras. 303–304). If this passage could be read as indicating the existence of a normative hierarchy within the primary law of the EU, the validity of Article 275 TFEU might be open to challenge. The fact that the adoption of legislative acts is twice expressly prohibited in the context of the CFSP (Articles 24 (1)(2) cl. 3, 31 (1)(1) cl. 2 TEU) admittedly makes the ban on judicial review of CFSP decisions more tolerable (479) because it renders less likely those large-scale interferences with individual rights that would have to be based on general normative action imposing obligations on individuals. In the opinion of the reviewer, however, the object and purpose of the rule of law principle goes beyond the safeguarding of individual rights: it is essentially geared toward imposing and effectively implementing legal constraints on political power so as to eliminate arbitrary government once and for all. Historically, the subjective government of men (car tel est Notre plaisir, as Louis XIV of France used to say) was to be replaced by the more objective government of laws, and according to human experience, the most effective safeguard against any relapse into the arbitrary government of men is judicial review. This is the essential message of the famous US Supreme Court decision in the case of Marbury v. Madison that has been adopted by most constitutional systems, and certainly by the EU (Article 19 (1) TEU, Articles 263–264 TFEU). For the purpose of maintaining the rule of law in the EU intact as far as possible, the author proposes to employ Article 275 (2) TFEU. The second alternative of that subparagraph which confirms the Court’s jurisdiction over decisions on ‘restrictive measures’ against natural or legal persons (i.e. individualised sanctions such as asset freezes and travel bans imposed on suspected international terrorists and their supporters) has a rather limited scope. Eeckhout therefore wants to use the more general first alternative according to which the Court shall have jurisdiction to monitor compliance with Article 40 TEU, providing that the implementation of the CFSP shall not affect the application of the procedures and the extent of the powers of the institutions for the exercise of non-CFSP competences of the EU. Eeckhout argues that by making CFSP decisions which produce legal effects in relation to third parties (natural or legal

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persons), the Council would illegitimately transgress the boundary between the CFSP and the TFEU, and could thus be restrained by the Court pursuant to the first alternative of Article 275 (2) TFEU (482). In the foreword, series editor David Anderson indicates agreement with this argument (vi). Eeckhout further believes that the power of the Court of Justice to render an opinion pursuant to Article 218 (11) TFEU covers agreements concerning CFSP matters (274). Eeckhout treats Article 218 (11) TFEU as an exception to the rule in Article 275 (1) TFEU. Although one could quite as convincingly argue the opposite on the basis of a mere textual interpretation, the author’s explanation of the relationship between those two provisions is preferable because it advances the rule of law. In another context, the author advocates the enhancement of the Member States’ possibilities to ensure that the EU respects its international obligations and thus observes the dictates of the rule of law (322). In sum, this book provides inspiring reading and at the same time reliable reference. It is indispensable to all EU law specialists who want to understand the legal framework of the EU’s promotion of peace, security and progress beyond the EU. It is no less indispensable to all international law specialists who are eager to comprehend the rules guiding the foreign policy decisions of the EU which is one of today’s major shapers of world affairs and an important contributor to the progressive development of international law. THOMAS GIEGERICH Co-Director of the Walther-Schücking-Institute for International Law at the University of Kiel

Duncan French/Mathew Saul/Nigel D. White (eds.): International Law and Dispute Settlement: New Problems and Techniques. Hart Publishing, Oxford 2010, vvviii + 415 pages, ISBN 978-1-8411-3912-8. Enzo Cannizaro (ed.): The Law of Treaties Beyond the Vienna Convention. Oxford University Press, Oxford 2011, xxxi + 465 pages, ISBN 978-0-1995-8891-6. Festschriften can be (as has been put nicely) ‘gardens’ as well as ‘graveyards of scholarship’. They can yield treasures, but often hide them quite effectively. British publishing houses, less accustomed than their continental counterparts to the Festschrift tradition, have so far tended to see them as risky projects. But change may be under way. With British publishing houses dominating the international law market, a new semi-genre has risen to prominence – the ‘Festschrift in disguise’: dedicated to an honoree, but very focused thematically, bringing together essays on a given topic rather than the heterogeneous mix of collectibles characteristic of many a traditional liber amicorum. The two books under review squarely fall into this category. Dedicated to distinguished international lawyers (John Merrills; Giorgio Gaja), they set out to explore a specific topic shaped by the honoree. The Merrills Festschrift is devoted to the international law of dispute

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settlement. As the editors are at pains to stress, it does not attempt to duplicate Professor Merrills’ work on the topic, but to complement it by exploring (as the subtitle has it) “New Problems and Techniques.” This it does in 14 chapters (plus a brief Foreword and Preface and a more detailed Introduction), organised in three parts: (1) “The Changing Face of International Adjudication;” (2) “Problems and Techniques in Substantive Areas of International Law,” and (3) “The Regional Dimension.” The arrangement seems a little forced at times – Robin Churchill’s contribution on dispute settlement under the law of the sea appears in part 2, but really highlights “The Changing Face of International Adjudication” (part 1); French and Kirkham’s discussion of complaint and grievance mechanisms just as Sorcha MacLeod’s assessment of business accountability for human rights abuses appear in that part 1, but do not deal with international adjudication; chapter 10 on the Antarctic Treaty System (by Crawford) is as regional as it gets (setting up, in Crawford’s words, “the world’s only continental system of government not based on sovereignty”), yet it features in the ‘substantive’ part 2, not the ‘regional’ part 3. But these are formalities. As to the substance, the essays included generally are of a remarkable quality and worth reading. To engage with them individually is impossible in the framework of a short review. Instead, given the book’s claim to highlight current trends, it may be more useful briefly to consider contemporary developments in the law of dispute settlement, as reflected in the Merrills Festschrift. To the present reviewer, the essays, taken as a whole, reflect four such features. The first is the increase of areas of compulsory jurisdiction. This is a generally noted trend, and one that international lawyers are typically rather fond of: after all, compulsory jurisdiction overcomes the main structural weakness that has hindered the development of international courts and tribunals, namely consensualism. In recent decades, important areas of international relations have been ‘jurisdictionalised’ or ‘judicialised’ (the latter term presuming a liberal use of the term ‘judicial’) – and the essays in this collection duly take cognizance of the development. Almost refreshingly, the book may be unique among current dispute settlement collections not to cover developments in investment arbitration in any detail. Yet Surya Subedi highlights the role of WTO dispute settlement as “the first major international dispute settlement mechanism with compulsory jurisdiction” (179). And indeed, while one may argue with the qualifier ‘first’, surely it is compulsory and is of major relevance; as such, its importance can hardly be overstated. As Robin Churchill notes in his contribution, UNCLOS started a trend towards compulsory dispute resolution in another important branch of international law, namely the law of the sea. So developments are under way. There is no reason for complacency, though. As scholars such as Benedict Kingsbury have underlined, judicialisation is an uneven process, areas of compulsory jurisdiction have no doubt grown, but courts and tribunals remain islands in the sea of international relations. In fact, there is also reverse trend, equally reflected in the collection, and this is the move to sector-specific approaches. A brief glance at the table of contents of this volume is enough to indicate how much international law has diversified the traditional canon of dispute resolution techniques. As Karen Scott details in her contribution, non-compliance procedures are a key element of international environmental law. While they may have become a familiar feature of that area of law, Duncan French and Richard Kirkham’s piece demonstrates how much complaint and grievance mechanisms have spread. This is shown with respect to ‘ombudsmanry’,

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which ! just as non-compliance procedures ! is difficult to situate among the traditional techniques of dispute resolution, but plays an increasingly important role as a means of ensuring accountability – from the World Bank to Kosovo. The popularity of these alternative techniques of dispute resolution is based on the understanding that some form of third-party assessment is important, but that insistence on a binding dispute resolution in some areas may well be misplaced and counterproductive. This is a far cry from statements proclaiming (like Article 38 of the 1907 Hague Convention for the Pacific Settlement of International Disputes) arbitration – or for that matter adjudication - generally to be “the most effective, and, at the same time, the most equitable means of settling disputes which diplomacy has failed to settle.” Contemporary international law has moved on quite a bit; in many sectors of international relations, it deliberately avoids binding dispute settlement and does not consider it effective. In fact, in some areas, the way forward may be not to establish specific dispute settlement mechanisms altogether. James Crawford’s piece on the Antarctic Treaty System shows that notwithstanding the legal problems and the absence of intrusive dispute settlement, a curious system based on renunciation of sovereign claims has been politically successful, because States have not pressed their claims “at the expense of the system” (296). A third feature concerns the relationship between the different regimes in international law. This is highlighted particularly in part 3 of the book. While ostensibly ‘regional’, all chapters in that part address regional developments within a wider context. This may be a universal context – as in Paul James Cardwell’s piece which looks at the ECJ as a constitutional court and the impact of ‘constitutional’ decisions like Kadi or MOX Plant on the international legal order; or in Gino Naldi’s discussion of how the ICJ Statute shaped the drafting of the new African Court of Justice and Human Rights (ACJHR). However, regime interaction does not necessarily follow regional and universal patterns: Naldi’s piece highlights the (yet uncertain) relationship between the new ACJHR and the old African Court of Human and Peoples’ Rights. Further, Tahwida Ahmed’s analysis of Bosphorus et al., shows how complicated such intra-regional interaction between courts has become at the European level. Finally, the contributions in the book reflect the “challenge of public interest,” and the various (imperfect) means by which dispute settlement mechanisms grapple with it. Those contributions analysing mechanisms specifically set up to deal with disputes in areas governed by public interest regimes (such as human rights or international environmental law) of course deal with it implicitly. Nigel White and Matthew Saul address a cognate issue when exploring, in a detailed chapter, how in relation to international peace and security, dispute resolution by the Security Council is becoming more ‘legal’, and if intended to be successful, ought to become more transparent and inclusive. But beyond that, the first two chapters of the book squarely address the “challenge of public interest.” First, Malgosia Fitzmaurice provides an insightful analysis of the role of the ICJ in handling environmental disputes – clearly underlining the difficulties faced by the Court in opening up to environmental concerns, but also emphasising its unsurpassed ability to ‘mainstream’ rules of particular international law (including those in the environmental field). Then Vaughan Lowe approaches the topic more fundamentally when exploring the relationship between “Private Disputes and the Public Interest.” His piece is fairly short, and yet provides a survey of how public interest demands are making themselves felt in the arena of dispute resolution: amongst other things, as demands for broadening access;

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through amicus briefs, or as potential barriers to dubious settlements. All these issues no doubt require elaboration, but the first two pieces, read together, provide an extremely useful starting point for exploring the “challenge of public interest” in an informed way. These features do not capture the wealth of issues raised by the fourteen contributions, but they illustrate a particular strength of the Merrills Festschrift: in addition to addressing specifics, it provides a snapshot of the contemporary law of dispute resolution ! an area made accessible to many through the work of the honoree. The second ‘Festschrift in disguise’, dedicated to Giorgio Gaja, addresses an even more fundamental area of international law, viz., the law of treaties. It comprises of 25 chapters, grouped into five parts following key distinctions introduced by the Vienna Convention: conclusion; interpretation; observance and application; invalidity and termination; plus a special section on jus cogens. The range of issues addressed under these headings are broad, but again – just as with respect to the Merrills Festschrift – it may be useful to seek to identify key features of the law of treaties as reflected in the book. Four such features would seem to stand out, and are discussed below. First, not surprisingly, reservations to treaties continue to occupy commentators. Two entries to the Gaja Festschrift reprise issues dealt with in the course of the ILC’s detailed work on the topic: Alain Pellet and Daniel Müller spell out the differences between objections to reservations and their acceptance, on which, curiously, Article 21 VCLT is ambiguous, and is now addressed in the ILC’s Guide to Practice, notably Guidelines 4.2.4., and 4.3.5. Bruno Simma and Gleider I. Hernandez return to one of the most controversial aspects of the law of reservations, namely reservations to human rights treaties. Closely scrutinising the ILC’s approach, they accept the applicability of the VCLT regime as a matter of principle, but welcome the more recent moves towards a “new approach to normative treaties” (70): notably the Commission’s recognition that invalid reservations are null and void, and more importantly, of a presumption in favour of severability. Second, the evolution of treaties over time (to use the words of the ILC) prompts a considerable number of questions. Many contributors to the Festschrift address the matter through the lens of treaty interpretation. Pierre-Marie Dupuy approaches the question in broad terms, as a balancing act between ‘memory and prophecy’. Georg Nolte and Donald McRae focus on subsequent interpretation in the WTO context. As Nolte shows, the Appellate Body has been surprisingly cautious in accepting evolutionary treaty interpretation; McRae analyses the Appellate Body’s long-standing (but so far only moderately successful) efforts to come to terms with the thorny problem of ‘zeroing’. But treaty interpretation is just one aspect that needs to be addressed from an evolutionary perspective. Marcelo Kohen deals with desuetude and obsolescence – but argues that the VCLT rightly did not include them among the grounds of invalidity or treaty termination. As regards effects preceding a treaty’s entry into force, Paolo Palchetti draws attention to the increasing reliance on Article 18 VCLT (the obligation imposed on signatory States not to defeat a treaty’s object and purpose) in domestic court cases; while Manoush Arsnjani and Michael Reisman use the Energy Charter awards such as Yukos to illustrate the VCLT rules on provisional application.

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While most contributions mentioned so far deal with issues addressed (although perhaps not satisfactorily) in the Vienna Convention, a considerable number of contributors analyse the law of treaties beyond the strict inter-State realm – which in 1969 was deliberately left to the side, and has since been taken up in the much more controversial Convention of 1986. In their opening piece, Olivier Corten and Pierre Klein ask whether agreements between a State and a non-State actor are “rooted in the international legal order” and suggest that, at least for ceasefire agreements concluded to end civil wars, the answer is by no means always in the affirmative. Given Giorgio Gaja’s influential work on the 1986 Convention, it comes as no surprise that a number of contributors address treaty law rules applicable to, or applied by, international organisations. Christian Tomuschat analyses how treaty law deals with international organisations as third parties to treaties and shows that notwithstanding conceptually clear maxims like pacta tertiis, practice has developed patterns of involving international organisations into inter-State treaties – whether as depositaries, facilitators or financiers of certain treaty-related activities. Two other pieces show how organs of international organisations play an increasingly relevant role in adapting and applying the law of treaties. Pieter Jan Kuijper traces the ECJ and Court of First Instance jurisprudence on treaty law, which address international treaties now on a regular basis; while Michael Wood mounts a defence of the UN Security Council, which in his view has been unduly ‘demonised’ for its alleged interference with established rules of treaty law. Finally, public policy considerations as reflected in the law of treaties occupy a significant part of the book. Predictably, jus cogens (which Giorgio Gaja already in 1981 rightly considered to have acquired an existence “beyond the Vienna Convention”) is addressed in no less than three contributions – including in the editor’s thoughtful analysis of “A Higher Law of Treaties.” But ‘higher law considerations’ are not limited to jus cogens: Serena Forlati looks again at Article 52’s ban on treaties procured by means of coercion; Fausto Pocar moves into the (otherwise neglected) field of State succession by revisiting debates about continuity of human rights obligations; and Alessandra Gianelli explores duties of non-recognition at the intersection of treaty law and responsibility. The brief survey identifies four broad areas in which international law indeed has had to move beyond the 1969 Vienna Convention. The treaty is, as Enzo Cannizaro notes in his introduction, an extremely successful exercise in codification; but it needs to be adjusted to changing demands, and applied in novel settings. The Gaja Festschrift illustrates that in many respects, contemporary international law has successfully moved beyond the Vienna text, while in others, it still struggles with the fallout of decisions taken in Vienna. It is a fitting dedication to an international lawyer who – as an academic, ILC member and judge – has had occasion to shape the modern law of treaties – based on, but not limited to, the 1969 Convention. CHRISTIAN J. TAMS Professor of International Law at the University of Glasgow

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Florian Hofmann: Helmut Strebel (1911–1992) Georgeaner und Völkerrechtler. Studien zur Geschichte des Völkerrechts 23, Nomos, Baden-Baden 2010, XIII, + 311 pages, ISBN 978-3-83-295481-9. Biographies of eminent scholars (e.g., Bluntschli and Lieber, Liszt, Wehberg, Strupp, E. Kaufmann, Scelle, and Schwarzenberger) have been published in the series “Studien zur Geschichte des Völkerrechts” where the scholar’s academic reputation fully justified the biography and its publication. The situation is different for Helmut Strebel. To a large extent he was mostly known to those who came into contact with him, as the editor of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), and through his publications at the Heidelberg Institute. Strebel did not produce voluminous works on public international law. His articles appeared mostly in the ZaöRV. What is remarkable and unique in his vita are Strebel’s relations to the poet Stefan George, and the Stauffenberg brothers (Berthold von Stauffenberg and Claus Schenk Graf von Stauffenberg), and Strebel’s great achievement in setting up the Max-PlanckInstitut in Heidelberg after 1945 (1 et seq.). Understandably, Hofmann was attracted to write the biography of a man who was impressive, rich in experience, sensitive, influenced by Stefan George, and moulded by fateful events of the 20th century (261). From Strebel’s youth, every occurrence seemed to prepare and propel him into the influential, literary and academic ‘Stefan George circle’ (George-Kreis), and to follow in the path of his uncle and mentor, Max Kommerell (1902–1944; see G. Mattenklott, in: W. Killy, Deutsche Autoren, vol. 3 (1994), 291), who was also a member of the George-Kreis. The principles of the GeorgeKreis (common reading matters, Socratic talks on culture, discourses) made a great impression on him. Strebel came to conform to Stefan George’s ideal of beauty (22–23, 25). He wrote several letters to Stefan George and had pleasant meetings encounters with him (28 et seq.). He also developed friendships, inter alia with Karl Josef Partsch and the Stauffenberg brothers. Strebel read law, influenced by his friends in the George-Kreis and because he feared that he would not attain the level of success of his uncle, Max Kommerell, an academic scholar, poet, and man of letters. He finished his studies with good results in 1937 and had a broad command of foreign languages. Berthold von Stauffenberg recommended Strebel for his latter position as a research assistant at the Institut für ausländisches öffentliches Recht und Völkerrecht in Berlin (65, 77). The superior Ernst M. Schmitz, helped form Strebel’s objective, precise and straightforward style of work (78). After 1938 Strebel accomplished editorial tasks for the ZaöRV. He also became a member of National Socialist Institutions, but was more compelled and dissociated with the institutions (65 et seq.). Seriously wounded during World War II, Strebel refrained from reports about deserters and thereby protected their relatives against the reach of Nazi authorities (106). Although he was not directly involved in the events on the 20 July 1944 (20 July Plot), he felt attached to the assassins, namely to Berthold von Stauffenberg for whom he wrote a necrology in the ZaöRV (114) and secured his inheritance. During the proceedings of ‘denazification’ he could avail himself by that fact (134 et seq.).

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After World War II, Strebel participated intensively in the set-up and the future concept of the Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht in Heidelberg (154 et seq.). At first he disapproved of Carl Bilfinger as director of the Institute because of Bilfinger’s past in the National Socialist German Workers Party, but finally accepted him presumably to get the re-employment at the Institute after a short time away spent working in a lawyer’s office (135). During this period he also wrote a doctoral thesis “Die Verschollenheit als Rechtsproblem, Eine rechtsanalytische und -vergleichende Studie,” 1954 (138). Though Strebel had the intention of completing a habilitation thesis, required for lecturing at a university, he did not succeed in producing the thesis (179 et seq.). His work as editor in the Institute and his academic membership in the Max-Planck-Gesellschaft, could have been a possible reason for this. During the last period of his life Strebel was nearly exclusively concerned with the supervision of re-editions of Kommerell’s publications (also of French and Spanish translations). He also defended Kommerell against attacks based on a alleged involvement in National Socialist activities (211 et seq.). Turning to Strebel’s publications on Public International Law Hofmann stresses correctly Strebel’s specific interest in fundamental questions (297 et seq.): the formation of sources (Quellen des Völkerrechts als Rechtsordnung, ZaöRV 36 (1976), 301), a positivistic view of the international legal order (Was ist positives Recht-Fortsetzung einer Diskussion, in: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 29 (1954), 473), and the pragmatic concept of the relations between international and municipal law (Das Österreicher-gesetz vom Blickpunkt des Völkerrechts, ZaöRV 19 (1958), 483; Das Völkerrecht als Gegenstand von Verweisungen und Begriffsübernahmen, von Kollisionsregeln und Rezeption im nationalen Recht, ZaöRV 28 (1968), 503; Erzwungener, verkappter Monismus des Ständigen Internationalen Gerichtshofes? Eine Entgegnung, ZaöRV 31 (1971), 855). One can agree with Hofmann’s conclusion that the essential outcome of Strebel’s life is the important part in organising the Heidelberg Institute and editing the ZaöRV, not so much the originality of his relatively small academic work. Within the circle of Stefan George, Strebel played a minor role. He was always an Externer (255) though he maintained friendly relations to members of Stefan George’s circle throughout his life. He kept hidden his direct but rare contact to the poet. This is probably why he is not mentioned in Thomas Karlauf’s exhaustive biography of Stefan George (2007). One may wonder if there is a connection between Strebel’s vocational choice as a specialist in international law and his experience in Stefan George’s circle (6).The question can hardly be answered. The experience could be seen as Stunden des Paradieses (256) within a life closely connected with the intellectual and political evolution of the 20th century. Hofmann’s biography is well based on solid research, and is richly documented. It is also useful for readers interested in the history of the Institut für ausländisches öffentliches Recht und Völkerrecht in Berlin and later in Heidelberg. MEINHARD SCHRÖDER Professor at the University of Trier

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Victor Kattan: From Coexistence to Conquest – International Law and the Origins of the Arab-Israeli Conflict, 1891–1949. Pluto Press, London 2009, 416 pages, ISBN 9780-7453-2578-1. In September 2011 Palestinian President Mahmoud Abbas asked the United Nations to recognise Palestine as a State and requested full UN membership. Although the admission of Palestine to UNESCO in October 2011 raised hope of its supporters, the request was also met with opposition: the USA expressed its clear disapproval stating that it would make use of its veto power if a vote on full membership to the UN was taken. The request and the upraised discussions have once again put focus on the long lasting conflict between Israel and Palestine, and for a deeper examination into the conflict. Although one could think that legal scholars have already written and commented on everything there is about the conflict by now, Kattan’s book is a valuable contribution to the legal discussion. Kattan provides not only a legal analysis but also connects the legal aspects with political and historical information. And understanding the complexity of the conflict is a necessary precondition for discussing options for the settlement of the conflict. The book is structured into nine parts and deals inter alia with the scramble for the Middle East, the Hussein-McMahon correspondence, questions of the Palestinian refugees, and the creation of Israel. One key aspect of the book is the interaction of the origins of the conflict and the European history in the beginning of the 20th century. Kattan illustrates the link of the ideologies of Anti-Semitism, Colonialism and Zionism to the Israeli-Arab conflict and argues that the ideology of Zionism conformed to the ideology of Anti-Semitism in important respects. Both ideologies were built on the assumption that Jews are not only a religious group but a different ‘race’ and aimed at the resettlement of Jews in another part of the world. The concept of remodelling the world through founding a new State was clearly based in the colonial ideology of the Great Powers in these times. According to Kattan these circumstances can be seen as roots of the current conflict in Palestine where different religious and ethnic groups had lived together without serious difficulties for more than a thousand years. The current problems were rooted in the events during the following years. The British Mandate over Palestine, the immigration of a great amount of European Jews in the aftermath of World War II and political decisions of the Great Powers fuelled the conflict. Kattan also discusses issues of international law and raises the question of the legitimacy of the creation of Israel. In reference to the Palestinian right to self-determination, he argues that the right to self-determination was a relatively new phenomenon at the beginning of the 20th century and was viewed as a political principle but not yet a legal right which all people could invoke. Kattan argues that the non-recognition of the right to self-determination was not a legal consideration but a political decision: self-determination was only acknowledged if it was consistent with political strategies. Yet, the British interest to “find a home for Jews” prevailed against the right to self-determination of the Arabs living in Palestine in 1917. However, seeing the discrimination of Israeli Arabs, the creation of Israel through the use of armed forces, and the enforced displacement of Palestine’s Arab population in 1948, in Kattan’s

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view, the spirit of the League of Nations Covenant, the Balfour Declaration and the British Mandate of Palestine were violated by the manner in which Israel was created in 1948. In picturing the role of the Great Powers, who decided what international law was and gave the creation of the State of Israel the needed legitimacy, Kattan clearly points to the moral responsibility of Britain, Germany, and Russia, and calls for the countries to take more responsibility in the enduring conflict. Kattan does not try to convince the reader of a certain solution to the problems but rather states that there could be many ways in which the conflict could be resolved. No matter whether politicians realised a one-State solution with equal rights, a bi-national State or a two-State solution, Kattan makes the point that it would all be better than the maintaining status quo dominated by force and violence. In any case, as Kattan says, a lasting peace must be based on equity, justice and principles of international law. One can only hope for the sake of millions of people that a solution will be found eventually. All in all, the book is particularly impressive. Kattan uses an immense amount of archival material and gives a sound analysis of the Arab-Israeli conflict. He provides the reader with a profound knowledge of the historical and political background and succeeds in examining the discrepancy of the Arab and the Israeli view in decisive legal questions. The book is wellwritten and Kattan’s arguments are well-reasoned. Legal scholars presenting a different approach are challenged to dispute with his arguments. Thus, the reading of “From Coexistence to Conquest” is highly recommended. JULIA MÜLLER Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel

Martti Koskenniemi: The Politics of International Law. Hart Publishing, Oxford University Press, Oxford 2011, xv + 371 pages, ISBN 978-1-84113-939-5. This book is a collection of essays by Martti Koskenniemi, which have been published separately during the past twenty years since his eponymous article appeared in the first volume of the European Journal of International Law in 1990. The essays in this collection have been “updated or slightly modified” by the author from original versions (vii). It is an interesting read in every sense, since this collection conveniently brings together thoughtprovoking papers from one of the leading critics in the field. The main question before or after reading the book would be how international law, both as a subject for study and a normative system in the real world, fares in the years between “From Apology to Utopia: the Structure of International Legal Argument” (1989) and “The Politics of International Law – Twenty Years Later” (20 EJIL (2009), 7). The tag of ‘leading critic’ may be further augmented with that of ‘practitioner’, as the author of the book under review has derived his thoughts from his diplomatic and academic experiences (ix). It may be noted, immediately, that the author has said much already in his preface about the design and development of this book. It is notable,

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above all, that his is “a realistic view of the operation of international law as a practice of decision-making” (vi). The view seems to immediately distinguish the view of the author on the subject from one that is theoretically inclined. It is a lawyer’s view. The understanding of the message the preface seeks to convey has been ably assisted by Professor Jouannet’s critical introduction. Koskenniemi’s view on the subject of international law has been expressed all those years back in the 1990 article (now chapter 1 of this book), not to mention the 1989 structuralistic treatise “From Apology to Utopia.” The utopian and apologist views of the nature of international law remain the two poles of the author’s doctrinal critique of the subject. That has not changed by his practical experience (43, referring to R. Falk’s article published in 1969). He leaves the impression that international law is not only something that we cannot live without, but also a system that we cannot live comfortably within, especially when it has been stubbornly open to auto-interpretation, thus resulting in a lack of determining rules (59). This uncertainty, in his view, has led to the challenges mounted in the form of the fragmentation of the legal order, brought about through the emergence of regulatory regimes of specialty, and of an attempt at a take-over by managerialism that characterises some part of the discipline challenging the jurisprudence of exegesis (72–73). In the flux of doctrines of our times, well summarised and critiqued in the book (25–238, and chapter 12), it may be wondered whether the international lawyer shall still nurture an innate belief that the rule of international law is inevitably what international society, if any and if ever, aspires to achieve, since individual powers must be controlled by that rule (36–38). But then the problem starts to pique that “legitimising or criticising state behaviour is not a matter of applying formally neutral rules but depends on what one regards as politically right, or just” (61). In that situation, can the international lawyer simply remain uncertain as to the solution based in the law, which however may be devised by experts of the functional regimes (69) and others and may thus have the Prince’s ear? At an important moment of his career, the trajectory of Koskenniemi’s critical thinking has received input from involvement, as legal adviser to the Finnish delegation, in the debates of the UN Security Council in the early 1990s. It may be the time when the process of replacement of rule by interest was in his full view (72). He nonetheless considers that law does not exist “as a causal variable of politics” (79), as legal realism sought to convey, but frames politics to enable actors in it to take decisions (102). His conclusion on this is that law, in the system of collective security of this world, serves “as a working culture of the ‘gentle civilizer’” (111). Later, he observed the turn to ethics in the profession in the midst of the Kosovo crisis of 1999, when the discipline of international law struggled to find credibility (114). He discerned various moral positions taken by international lawyers pursuing differing interpretations of the law in the light of the crisis, and noted the contrast between automatic rules within domestic normality and the lack of such rules in an international emergency, where “impulse to act now” outweighs the formal validity of the law (123). In parallel, he sharply criticises the experience of “the administrative recourse to rights language in order to buttress one’s political priorities” in the then Europe (134). In his view, political preferences may be behind the protection afforded certain matters, but they are couched in rights language to defy any criticism that language could have suggested otherwise (141–142). We also learn that indeterminacy of the law may well arise when the law enters the territory of a larger context of a political event (195). In this part, the

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book asserts that law operates in a society in which decisions affecting the society are taken with the law and policies jointly considered by the decision-makers, as in the case of conflicting rights that have to be weighed by judicial organs against other societal policies (145–146). In an international landscape of this complexity, two pieces of advice seem to be implied in the book for the profession of international law. On the one hand, the lawyer should do well to focus on the law side of an event, if he or she hopes to remain relevant to that context from a professional point of view (258, 274). Indeed, for lawyers of practical experience in this field, there is perhaps not much pull for the transformation to become a political scientist. On the other hand, as the book seeks to show, the lawyer expresses his or her opinion on a legal issue not by producing chains of reasoning – a mark of mastery of techniques of law, but “because of who we are” (218). Beyond the technical, there is more to being a lawyer. For international law is “a process of articulating political preferences into legal claims that cannot be detached from the conditions of political contestation in which they are made” (221). With that general condition explained, Koskenniemi considers that the lawyers may be employed in either practice or academia. While practitioners ‘usually’ see international law as “routine application of standard solution, ad hoc accommodation and compromise” (252), ‘few’ international lawyers today see it in a purely legalistic light; instead, they employ the method of “pragmatic weighing of conflicting considerations in particular cases” (253). It may be wondered what, if any, difference lies between the professions of diplomats and international lawyers. Perhaps the book sees these two professions essentially as one, which would, from a methodological point of view, be quite similar to the well-established view (Ian Brownlie, The Calling of the International Lawyer: Sir Humphrey Waldock and His Work, BYIL 54 (1983), 7, 64, 66, 73. But that view of the similarity between the two jobs’ treatment of international law could also spell the end of a formal distinction between them, for all persons concerned seem to possess the same instrumentalist mindset in connection with “diplomacy and international politics” (255). However, the book envisages international lawyers as ‘servants’ of the ideal of a universal law (258, 275). There is therefore force in the view that practice and theory and/or doctrine are “styles that are taken on in a particular context,” which entails no hierarchy between them (300). But could this be done with a fragile commitment to international law (276)? Or perhaps some lawyers have become “counsel for the functional power-holder speaking the new natural law” (324) or simply experts in managing particular regimes (338)? These problems persist, in spite of the victory for constitutionalism through the International Law Commission’s finding in 2006 that international law is a legal system, of which there is no specialised regime that can claim autonomy (347–348). The finding was much wrought by Koskenniemi as Chairman of the Study Group (between 2003 and 2006) established by the Commission to consider the topic. In any case, the author ends the book with an affirmation of his ‘secular faith’ in an international law as “a project of critical reason that measures today’s state of affairs from the perspective of an ideal of universality” (361). The book contains many insights into the discipline of international law that show a keen mind in search for answers. The knowledge of literature on display is impressively broad and eclectic. The author reveals his doubt about, for instance, the existence of international norms before the end of the 19th century (154), pinpoints the gist of a critical legal view of the discipline as a mixture of formal predictability and substantive indeterminacy (298), presents a clear exegesis of the author’s own style as method in the writing of the great book, “From

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Apology to Utopia” (1989) (298–299), observes of the new languages – hence new authorities – in the years between 1989 and 2009 that tend to assert new preferences for “functionally diversified regimes of global governance and control” (324), and dissects the phenomenon of deformalisation in today’s world (339–345). The book’s reflection upon the approaches, styles, and methods of this age and the past in the field of international law is both powerful and provocative, and the synthetic messages emanating from the myriad of strains of thought are of great force of persuasion. Its intensity in analysis and critique is remarkable, and the author does not mince his words. Given the book’s distinct narrative style and the number of references to literature, it should be a recommended reading for postgraduate students and scholars in international law and international relations alike. The author’s experience may be quite singular, but the individual viewpoint he possesses and reveals in this book is helpful to any that aspires to study and work in this field. BING BING JIA Professor of International Law at Tsinghua Law School

André Nollkaemper: National Courts and the International Rule of Law. Oxford University Press, Oxford 2011, xlv + 337 pages, ISBN 978-0-19-923667-1. Two recurrent themes in the literature of international law underlie this book: first, the ideal of the rule of law in international relations, and second, the relationship between national and international law, with the focus squarely trained on the role of national courts in the protection of the international rule of law. The book reflects the author’s accumulative work in the past decade through his involvement in such an interesting and helpful project as the Oxford Reports on International Law in Domestic Courts (Oxford Reports series), of which he has been a chief editor since the beginning. The perspective is that national courts have the primary role in the application of international law, but that they also increasingly contribute to the international rule of law by reviewing the acts of administrative branches of their respective legal orders (7). The point of the book is, generally speaking, that international and national law complement each other, thus moving away from any insistence on the dualistic view of the relationship between those two legal orders (13, 301). The problem that connects different parts of the book is how national courts, perceived in this light, contribute to the international rule of law, with such an inherent limitation that those courts are themselves part of the body politic and legal culture in which they deal with questions of international law (14, 46, 47). While neither of the two themes mentioned above is of recent concoction, the book serves as a contemporary study of them by reference to latest case-law and literature, presenting them in a dynamic manner. The topic itself is one that requires renewed studies in the course of time. On that premise, the book provides interesting food for thought through its perusal of the role of national courts in the scheme of the international rule of law. For instance, the lack of provision in general international law for direct effect of that law in the domestic order is “perhaps the single greatest limitation” of the capacity of national courts to promote the scheme

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(126). While the point is attractive enough, international law at its current stage of development seems to only allow for its overall reach to stop at the national borders, at the behest of sovereign States, although international law may retain its influence within the domestic order in respect of the secondary rules of the latter (225). This is evidenced by those colourful but entrenched principles underpinning this order’s several branches: exhaustion of local remedies, subsidiarity and complementarity (26). In addition, States, given the choice to deal with this matter, may well have made suitable provision in their legal orders (128) or, as far as their courts are concerned, have legal techniques ready in place for that purpose (139). The impact of the lack mentioned in this example may therefore be quite limited, not enough to undermine the rule of law ideal internationally. Likewise, a general obligation of consistent interpretation is perhaps worth its while for any judicial work (150–151). What this gives rise to is a question of how to assess the consistency of several national legal orders in respect of the same rule of international law, when the courts of each order state their own understanding of the rule (217, 220–221). Those courts may not feel obliged to follow what has been stated by other countries’ courts to be the correct understanding, notwithstanding gallant efforts to the contrary (225–226). When the understandings so stated are various, national judicial efforts at consistency may not be that successful in the enforcement of international law. They may even conduce to varying views of the opinio juris, if any, regarding the rule. Uncertainty ensues. It is also interesting to see that national judicial decisions may constitute, to some extent, “autonomous sources of authority” in the determination and development of international law (266). The distinction between the supremacy of international law and the international rule of law ideal is also well noted (286–287). The book is based on a solid foundation of the author’s knowledge of national cases, which number over 1,400 (17). The synthesis of this impressive amount of materials through this book is definitely worthwhile and timely, while the database that is the fountain of this gush, the Oxford Reports series, has been growing at the rate of 120 or so cases for each passing month. That mushrooming of case-law of this kind is a sure sign of the globalising spread of international law. This encouraging background also brings with it some queries. It may be wondered, for instance, whether a word on the state of the rule of law debate in the UN General Assembly could have been added to familiarise the reader with the general direction of this topic (but there are, admittedly, passages that partly deal with this in the “Concluding Remarks” of the book). Without it, it may be unclear as to the precise effect national courts’ case-law produces, or is supposed by the book to produce, in this context. For narrative purposes, as such effect is tied to specific aspects of the rule of law doctrine, to have it said at the beginning of the book might give the good structure of the book an easier look. Indeed, the question may pop up in any case as to which version of this doctrine is the standard the maturing of whose aspects is helped by the intervention of national case-law? Another comment is with the interesting brush with the dualistic doctrine. National and international law complement each other, as the book clearly upholds, but should we also assume that the international rule of law ultimately requires a monistic approach as a matter of universal policy in the current climate of international life (71)? Once it is accepted that the two legal orders belong to one system, is there not a question, again, as to their relative force within that system? It could bring us back to the premise of Fitzmaurice that those two orders deal with different spheres (of one and the same international system) (The General Principles of

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International Law – Consideration from the Stand-point of the Rule of Law, Recueil des Cours 92 (1957), 5, 79. The author, of course, has this in sight in the course of analysis of, among others, the broad issue of judicial independence (66–67). Yet another impression is that, given the size of national case-law relied on by the author, not to mention the book’s copious references to the case-law of international judicial organs, it must have been challenging to channel it into manageable allotments for closer analysis. It is one thing that national case-law consciously converges on a certain principle or a degree of clarity with respect to an issue, thus providing definite assistance to the international rule of law (239–240); it is quite another that the case-law incidentally follows one practice or interpretation, but in fact for different reasons, leaving it difficult to say if there is any opinio juris emerged for a definitive rule. On top of the latter possibility, if only the typically well documented case-law of a few countries is collated, could that amount to a general trend (300–301)? Or is such case-law only helping the cause of the rule of law in whichever piecemeal way it happens to have taken? The arbitrariness of this state of affairs has not gone unnoticed (241). These and other points made or implied in the book only heighten the sense of the complexity of the topic. Structurally, the book, with its broad sweep and familiarity with case-law and literature, connects many strands of thought known to current academic debates. The author has made the reading less strenuous by helpfully setting forth main headings at the beginning of each chapter, to provide a synthetic introductory that contributes to the understanding of the overall plan of writing. But at places, the approach to subsequent analysis after headings seems to be one that aligns cases with headings which are derived from international case-law, rather than national case-law (118; 257; 280). This might require some word at the start of the book that the judicial profession shares principles and techniques, which are reflected in both international and national procedures. Also, the aim to show the role of national courts in controlling acts of other State organs, to the benefit of the rule of law at the international level, is at times less pronounced in the discourse on a specific aspect. The book has done a notable service in updating, enhancing, and refocusing our view of the contemporary role of national courts in the development of the international rule of law. While it recognises the yet limitedness of the role or the weak normative force of international law (300), it holds forth the prospect that national case-law may acquire legal effect, in addition to its being perceived as facts by international judicial organs, in the determination of relationships based in international law (264–266). That forward-looking perspective, together with the book’s many interesting points, calls for a closer reading of, and further reflection upon the book by academics and practitioners alike. BING BING JIA Professor of International Law at Tsinghua Law School

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Alexander Orakhelashvili (ed.): Research Handbook on the Theory and History of International Law. Research Handbooks in International Law Series, Edward Elgar, Cheltenham/Northampton 2011, xi + 543 pages, ISBN 978-1-84-844354-9. Among the latest entries in the publisher’s “Research Handbooks in International Law” series, this book is described by its editor as “the first comprehensive effort in theory and history of international law” (xi). It is comprised of three main parts, the first of which deals with “the essence and development of international legal theory” and contains seven chapters on the development of international legal theory as well as on specific schools of international legal thought. The second part, entitled “thematic aspects of international legal theory,” contains four chapters on the theory of branches of international law. The final part on the “history of international law” contains six chapters dealing with specific time periods in the development of international law and its development in specific geographical areas. It is impossible to do justice to all of these contributions in the space of a book review. This review will therefore confine itself to a brief overview of the various chapters and to some general comments on the book as a whole. The first part of the book begins with a chapter on “the relevance of theory and history – the essence and origins of international law,” penned by Orakhelashvili. Early on, Orakhelashvili notes that “[t]he proper study and analysis of international law should [aim] at separating legal issues from those of morality, politics, ideology and social interest” and that “States need certainty as to whether or not they are bound by a particular rule of international law” (5). This rather positivistic approach to the theory of international law, which seems to consider natural law theories as the only other contender to the title of serious legal theory (12 et seq.), arguably permeates the entire book. Chapters 2 to 5 consider historical international law scholarship: Alain Wijffels deals generally with Early-Modern scholarship, i.e. that of the 16th to 18th centuries. Wijffels presents a very thorough overview which is grounded in the general history of the period. Notable features of this chapter are the sections entitled ‘specimen’ in which works belonging to the various ‘schools’ are considered in detail. The next two chapters deal with the same time period, but consider in more detail the traditions of natural law and positivism as exemplified by a number of notable scholars: Gentili, Grotius and Kant in chapter 3 on naturalism (by Patrick Capps), and Pufendorff, Wolff and Vattel in chapter 4 on positivism (by Orakhelashvili). In chapter 5, Amnon Lev deals with the 19th century “transformation of international law,” which he sees as expedited by the change of the “conception of the inter-state sphere […] in Europe” during the 19th century: the evolution of the classic system in which States were seen as opposed to each other by virtue of their sovereignty into one which incorporated aspects of community and of the common will marks the beginning of the discipline of international law as it is known today (112). Much of this chapter can be read as an extended argument with Martti Koskenniemi, who in “The Gentle Civilizer of Nations” had focused more on the spreading of economic liberalism to explain the evolution of international law. In a short conclusion on “the future of the 19th century,” Lev reflects on the current situation in which the focus of geopolitical power has shifted away from Europe to America. He concludes with what reads like a call for renewed European ‘exceptionalism’ against American hegemony (138–140). Concluding the first part of the book, more recent

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theories of international law are represented by a chapter applying Hans Kelsen’s “pure theory of law” to some current problems of international law (chapter 6 by Jörg Kammerhöfer) and an introduction to the ‘social idealism’ of Philipp Allott (chapter 7 by Iain Scobbie). The second part of the book, which deals with the theories of specific branches of international law, is mostly focused on ‘modern’ branches of international law. In chapter 8, Frédéric Mégret gives an overview of some of the perennial debates arising in international human rights law, a field of international law on which scholarship has always been particularly interdisciplinary. Robert Cryer introduces “the philosophy of international criminal law,” not only giving a historical sketch of the development of such philosophy, but also considering in quite some detail how the debate between positivism and natural law has played out in the creation and decisions of international criminal courts and tribunals from the post-war International Military Tribunals to the International Criminal Court. Finally, he also devotes some space to other theoretical approaches to the subject, both those associated with the ‘critical legal studies’ movement, broadly speaking, and those seeking to internationalise general criminal law theory. Katja Ziegler “examine[s] the relationship between EU law and international law in light of the constitutionalisation of both” in order “to answer the question how far the EU is still open to, intertwined with and embedded in international law” (269), considering the interaction between the two regimes and the ways they do and ought to deal with the danger of fragmentation. Finally, Orakhelashvili in chapter 11 chooses a rather broad approach to international relations theory, dealing generally with the interactions between “international law, international politics and ideology.” The historical part of the book starts with a chapter by William Butler on “periodization and international law.” Butler notes how earlier international law historians have divided international law into distinct periods and calls for international law historians to develop their own periodisation, independent of those of general history and the histories of diplomacy and international relations. Of the remaining five chapters, three cover specific periods of history while two deal with the often-overlooked history of international law outside of (western) Europe. Of particular interest was chapter 13 by Jean Allain on the Islamic law of nations in the Middle Ages, a period glossed over by many orthodox accounts of international law history given the absence of serious developments within Europe during that time. Allain works towards closing this gap in the historiography by giving an overview of some central features of the Islamic law of nations – including some interesting parallels to the European law of nations, such as the distinction between laws of war and of peace and between those on the inside and on the outside of the international law system. The author also notes that this tradition very likely had an influence on European scholars of the Early Modern period (402 et seq.) and closes with a call for further work to be done in this field. By contrast, the chapters on the “classical law of nations” by Randall Lesaffer and on the 19th century by Orakhelashvili present very thorough, but more traditional views, focusing on (western) Europe and looking at the rest of the world through the lens of European colonialism. Chapter 16 by Lauri Mälksoo considers the history of international law in Russia. Mälksoo notes at the outset that most scholarship on this topic, both in (western) Europe and in Russia itself, has so far been rather Euro-centric and focused on the extent to which Russia could be considered part of

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‘civilised’ Europe. However, given its specific situation at the edge of Europe, Russia can serve as a great historical example for the problem of regional fragmentation of international law and thus act as a model for the question of how universal international law is or indeed should be. Mälksoo then deals with international law practice and scholarship in Russia prior to and in the Early Modern period, in Tsarist Russia and in the Soviet Union. Finally, chapter 17 by Carlo Focarelli provides a whirlwind tour through developments in the 20th century, quite rightly noting in conclusion that during that time, international law had developed to govern not only inter-State relations, but to more and more directly influence the daily life of people within States (524–525). The contributions vary considerably in methodology and scope, ranging from chapters providing a thorough overview of already-established topics (see, e.g., Mégret’s chapter on international human rights law) to those developing topics further (such as the chapters on the international law’s history in Russia and the Islamic world) and to those employing a more high-theoretical style and emphatically arguing for or against a specific theory (see, e.g., Kammerhöfer’s attempt to “get away from the gut-reaction against Kelsen and to avoid the stigma that is associated with his name in legal theory” (143)). Of course, even the ‘overview’ chapters occasionally attack established orthodoxies in their field (see, e.g., Lesaffer on the precise role of the peace treaties of Westphalia in the development of international law (414)). What all chapters have in common is that they are carefully researched and argued and for the most part very readable. As far as a general critique of the book is concerned, one would take issue with the scope. The cover blurb refers to the “multiplication of theoretical approaches over the last three decades,” and as noted the introduction declares the book to be “the first comprehensive effort in theory and history of international law” (xi). One who finds a lot of value in many of the theoretical approaches developed over the last the three decades, would look forward to reading general introductory chapters on at least some of these approaches. This was not covered. Therefore the claim to offer a comprehensive treatment of international legal history and theory must be put into question. The editor acknowledges that he cannot accommodate all theories and has thus decided “to focus on the most durable elements of international legal theory and ensure the proper presentation of those theories and issues whose timeless relevance has been demonstrated through long experience” (x). This has led to a quite pronounced (structural) conservatism in the choice of topics. This is especially true for the part on theory, which is dominated by the traditional dichotomy between positivism and natural law and which consists almost entirely of chapters on the history of international legal theory. With the exception of Philip Allott, little attention is paid to modern international law scholarship (and Allott’s theory, as noted by Scobbie, is probably best described as “a general (social) philosophy in which law plays an important role, rather than a philosophy of law as such” (169)). In other words, the “multiplication of theoretical approaches” particularly over the last decades is mostly ignored. The New Haven School, critical approaches to international law such as ‘New’, Feminist, or Third World Approaches, re-discovered Marxist theory, international law scholarship drawing on systems theory or queer theory – all of these are either not considered at all or only considered as a foil for authors to argue against (see, e.g, Orakelashvili on the New Haven School (334–339)). This is true even for ‘constitutionalist’

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approaches to international law, arguably the most modern incarnation of natural law theories in international law (see Kammerhöfer’s attempt at “debunking the myths” of modern constitutionalist approaches (151)). Only some individual chapters deal with those ‘other’ theories in the context of their respective subjects (see in particular Cryer on international criminal law theory (259 et seq.)). With regards to the historical part of the book, it is commendable that the selection of articles goes beyond the usual consideration of the ‘European law of nations’ and that articles on Islamic international law and on the situation in Russia are included. Of course, given that Orakhelashvili had earlier stated that “international law has always been universal” (The Idea of European International Law, EJIL 17 (2006), 315, 347 – an article which is cited several times in the book (129–130, 273, 469–469)), one might have wished for an even more detailed consideration of the history of international law outside Europe, e.g., for chapters on the Far East or on the early roots of international law in antiquity. Finally, while each individual contribution can certainly stand on its own, some additional editing might have been helpful to draw the individual chapters closer together and avoid repetition. Thus, the ‘historical’ chapters on the Early Modern period and on the 19th century both show a certain thematic overlap with the corresponding ‘theoretical’ chapters (see particularly chapter 14.2), such that a conscious examination by the authors of the respective other’s contributions might have provided additional value. Similarly, when Scobbie’s chapter on Philip Allott notes that Allott lays the blame for the current state of international law at the feet of Emmerich de Vattel, it might have been helpful to note that Vattel’s theory is considered in quite some detail in chapter 4. A general bibliography would also have been helpful, particularly given the many references to historical literature. (Then again, very thorough general bibliographies on the history of international law, compiled by Peter Macalister-Smith and Joachim Schwietzke, have already been published in the Journal on the History of International Law 1 (1999), 136, and 3 (2001), 75.) Of course, the fact that the book’s scope is a bit more limited than one might hope for does not detract from both the breadth and the quality of what there is. As noted above, the individual chapters are all eminently informative and very readable. It is therefore certainly true, as stated in the foreword by Philip Allott (ix), that this handbook will “encourage more thinkers and more thought” on international thought, and this is why it is, even for this ‘crit’, a very welcome addition to the literature. BJÖRN ELBERLING Practicing Attorney-at-Law, Kiel

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Lisa Ott: Enforced Disappearance in International Law. Intersentia, Cambridge/Antwerpen/Portland 2011, xxi + 325 pages, ISBN 978-1-7806-8004-0. On 23 December 2010 the International Convention for the Protection of All Persons from Enforced Disappearance entered into force, half a year after Ott’s study on enforced disappearance had been accepted as a doctoral dissertation at the University of Lucerne. Not only this fact, but also the increasing jurisprudence of the European Court of Human Rights with regard to this phenomenon signals the on-going actuality of Ott’s title “Enforced Disappearance in International Law.” The object of Ott’s study is – as Prof. Dr. Martina Caroni mentions in the foreword – to overcome the previous sector-specific approach and present a comprehensive work examining enforced disappearance from an international human rights, humanitarian and criminal law perspective. In this respect Ott advances the approaches by Pérez Solla and Scovazzi/Citroni who recently focused their studies on the human rights perspective and international human rights case law in particular. Therefore, Ott’s work presents for the first time an extensive analysis of the phenomenon of enforced disappearance. Simultaneously, the book also presents itself as a commentary – in the style article-by-article – of the International Convention for the Protection of All Persons from Enforced Disappearance. The last chapter of the study, chapter V, features on over a hundred pages the background and drafting process, the interpretation and evaluation of each of the 36 material provisions of the Convention – also in this form for the very first time. Chapter I is devoted inter alia to defining the term of enforced disappearance. Drawing on the United Nations Declaration on the Protection of Persons from Enforced Disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute and its Elements of Crime and lastly on the International Convention for the Protection of All Persons from Enforced Disappearance, Ott examines the respective elements of the term ‘enforced disappearance.’ The author thereby pays due regard to the particular requirements of the definition of enforced disappearance as a crime under international criminal law, and later on reaches the conclusion in chapter IV that the perpetrators’ intention has to be to remove the victim from the protection of the law. In chapter II Ott examines international human rights jurisprudence – especially by the Human Rights Committee, the Inter-American and European Court of Human Rights and the Human Rights Chamber for Bosnia and Herzegovina – with regard to the question which human rights are violated to the detriment of the disappeared person and of the next of kin. Adopting the multiple-rights approach, Ott analyses individually the different human rights which are violated. Using this process Ott differentiates between three layers of State obligations: the duty to respect, to protect, and to fulfil. However, this differentiation does not prove persuasively useful as the case law which the author examines does not always comply with this categorisation. Furthermore, Ott seems to neglect the importance of the establishment of the facts in cases of disappearances, and does not examine aspects of fact-finding and of the law of evidence thoroughly. This would have made it possible for the author to further explore the correlation between the development and emphasis of the duty to respect and to

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fulfil – in particular with regard to the obligation to investigate under Article 2 European Convention on Human Rights – and issues of fact-finding. Of particular importance with regard to the jurisprudence of the European Court of Human Rights are Ott’s conclusions reached in respect of the right to life and the prohibition of torture: Ott concludes that enforced disappearance constitutes per se a violation of the prohibition of torture and other inhuman or degrading treatment or punishment – a proposition which merits support. The same holds true for Ott’s conclusion that States should be held liable for violations of the right to life even if the victim’s death has not been proven in cases of enforced disappearance. Chapter III is devoted to international humanitarian law. Enforced disappearances – such is Ott’s assumption – are prohibited in international and non-international armed conflict and certain rules also regulate the prevention of acts of disappearances. Although the body of humanitarian law does not make explicit mention of enforced disappearance, Ott conclusively argues that it is prohibited as a form of arbitrary deprivation of liberty and as a violation of the principle of human treatment. Moreover, the rules providing for transparency with regard to prisoners of war are capable to prevent the occurrence of disappearances. In chapter IV (which as well as chapter III is relatively brief in relation to chapter II for lack of much case law), Ott focuses on the question of whether enforced disappearance constitutes a sui generis crime against international law and a crime against humanity. Thus, Ott purposively leaves certain aspects aside, namely the examination of disappearance as a war crime. Ott carefully comes to the conclusion that many issues remain uncertain, hoping for clarification by the future case law of the International Criminal Court. Overall, Ott impressively demonstrates that the phenomenon of enforced disappearance is now not only explicitly and in detail governed by the International Convention for the Protection of All Persons from Enforced Disappearance but that it is also regulated by general international human rights, humanitarian and criminal law. As a result of Ott’s comprehensive approach, the extensive development of international law with regard to this rather specific phenomenon becomes obvious. This achievement by Ott might – hopefully – contribute to the eradication of enforced disappearance and is thus to be greatly appreciated. SARA JÖTTEN Christian-Albrechts-University of Kiel

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Armin von Bogdandy/Sabino Cassese/Peter M. Huber (eds.): Handbuch Ius Publicum Europaeum. Band III: Verwaltungsrecht in Europa: Grundlagen (Handbook Ius Publicum Europaeum, vol. III Administrative Law in Europe: Basics), C. F. Müller, Heidelberg 2010, x + 636 pages, ISBN 978-3-8114-9808-2; Band IV: Verwaltungsrecht in Europa: Wissenschaft (vol. IV Administrative Law in Europe: Science), C. F. Müller, Heidelberg 2011, ix + 633 pages, ISBN 978-3-8114-4144-6. Article 3 (2) of the EU Treaty demands from the European Union the establishment of “an area of […] justice.” In western States justice is delivered through the law; and one important branch of law is ‘administrative law’. Far from any national isolation much of this law is now made or significantly influenced by European institutions – either through direct channels (i.e. supranational law making) or through processes like translation and transposition. As a result, the legal systems of Member States are growing together into a European legal order consisting of an amalgam of national and supranational rules and institutions. “The public law element of this law within the area of justice can be characterised as the new ius publicum europeum” (von Bogdandy and Huber) – the focus of the “Ius Publicum Europaeum” volumes III and IV. While the first two volumes of this series were concerned with the common ground as well as the differences in the development of the States and their constitutions (cf. Florian Becker, Handbuch Ius Publicum Europaeum, European Public Law 15 (2009), 459). The two volumes (III and IV) presented in this review are part of a trilogy addressing the issue of administrative law and the administrative state in Europe as such as well as the relevant peculiarities of the European States (EU Member States, plus Switzerland). Administrative functions are performed in every State. Every European State has a police force, institutions collecting taxes or providing social assistance to its citizens. However, one of the underlying messages of all the articles in volume III is that the perception of how an ‘administration’ works and how it is steered and controlled is largely dependent upon the underlying concept of the State. Thus, it would probably be wrong to assume that the fundamental and significant differences in this regard would not have an impact on the theoretical understanding of what administration and administrative law is – even though the creation of a European area of justice is based on shared common grounds rather than differences. The contributions in volume III lay the foundations for the understanding of ‘Administrative Law in Europe’. Following a structure similar to volumes I and II, the book is introduced by a general overview over the development of the administrative State in Europe (Sabino Cassese). Cassese’s chapter (§ 41) describes the common ground of this development and the necessary link between the development of the State and its administration (some of which can already be found in the previous volumes). Asides from the emergence of statehood, the internal differentiation between monarch and government, administration and an independent judiciary has contributed to administrative law’s emancipation as distinct legal discipline. Cassese explains how the consequences brought about by the existence of two distinct models of statehood in Europe has affected administrative law, since this branch of the law is much more contextual than its private counterpart, although there are traces of canon law to be found in the origins of both. Cassese uses the contrast between the State-centred French

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approach and the ‘stateless’ society of the UK as a powerful example demonstrating that the French State-consciousness is a better breeding ground for the development of administrative law as a legal discipline distinct from private law. The French approach was adopted by several continental States; however, it also changed its face during that process of adoption. Cassese emphasises the cyclical development of administration and administrative law in European States. Though it started with the unifying development of the idea and the notion of the State, the concepts, however, grew apart during the following years. European integration, however, brings the systems together again. Cassese´s insights are tested in several country reports that do not only cover the early Member States of the European Union, and the more recently acceded Member States (Poland, Hungary), but also non-Member States (Switzerland). The chapter on Germany (by von Bogdandy and Huber) is particularly of interest given that Germany has had a remarkable constitutional history in the last century with several entirely distinct and even contradictory constitutional systems in relatively quick succession. While the godfather of German administrative law, Otto Mayer, maintained that administrative law is the instrument of the State’s day to day functioning, one of the early presidents of the Federal Administrative Court, Fritz Werner, stressed the necessary link between constitutional law and work of the administration. von Bogdandy and Huber demonstrate that the latter has been proven right describing the ‘constitutionalisation’ of German administrative law. The most important element of that process is the use of fundamental rights as a citizen’s protection against disproportionate State intervention to the detriment of the individual, but also the constitutional decision in favour of general access to justice in all matters of public law was of paramount importance. In contrast, the UK is described by Loughlin as a ‘stateless’ society which followed a completely different path at first. While the UK was governed centrally, its administrative structures followed a distinct pattern of decentralisation making use of local government. The deeply rooted reluctance to accept a distinct administrative law was only overcome in the second half of the last century with the cooperation of the legislatives and the judiciary. Until today the fundamental principle of parliamentary sovereignty is upheld notwithstanding European integration and the Human Rights Act 1998. Loughlin explains that this has complicated the relationship between a ‘higher’ constitution and administrative law significantly, but the unifying influence of European Union law is a permanent threat for the concept of parliamentary sovereignty. The last section of volume III builds on the insights of the previous reports. Biaggini, for example, describes the fundamental concepts of the relationship between the State and administration as well as the position that administration has within the structure of a State. Fromont contrasts the different approaches of administrative law in Europe, contrasting France, Germany, and the UK as examples. Volume III ends with an article by Auby analysing the impact that recent and current developments (such as integration and globalisation) have had on the further development of administrative law in Europe. The internal fragmentation of States, the privatisation of State tasks on the one hand and the unintended loss of power in areas simply slipping from the States’ hands have resulted in the introduction of different administrative techniques (sharing of responsibilities) aimed at least partly at preserving some sort of influence on the development in these areas.

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While the focus of volume III is on the development of the administration and its law, volume IV addresses the administrative law as a scholarly discipline. An introduction by von Bogdandy develops the identity of this legal discipline while a range of country reports follow up on the individual development from the beginnings to present day. Discussing Germany in particular, Pauly states that the conventional understanding of administrative law has come under pressure from a number of scholars claiming its deficiencies in the face of internal fragmentation of States, privatisation and globalisation. Administrative law transforms itself into a tool for cooperation and allows to soften the fundamental distinction between State and society – the line along which fundamental rights either entitle or obligate. If that is true, this is an important next step in the ‘cyclical’ development of administrative law, where the mutual link between State and administration – the starting point of administrative law – becomes less important. Like its predecessors, volume IV concludes with a section building on previous insights and following a comparative approach in explaining the scholarship of administrative law. In a very positive sense, volumes III and IV of “Ius Publicum Europaeum” offer what the reader expected after the first two volumes: scholarship on the highest possible level in offering an authentic insight into the development of State administration, its law, and the comprehensive scientific analysis of both. The two volumes are worthy successors of the previous ones and as such an indispensable source for (German reading) public lawyers interested not only to understand which different sources influence the making of the common European administrative law, but also to think outside of the box of one’s own national legal system in order to be a part of a common European discussion. FLORIAN BECKER Professor at the Christian-Albrechts-University of Kiel

Onuma Yasuaki: A Transcivilizational Perspective on International Law. Martinus Nijhoff Publishers, Leiden/Boston 2010, 480 pages, ISBN 978-90-04-18689-7. It is said that one shouldn’t judge a book by its cover. Onuma’s book, based on a series of lectures given at the Hague Academy of International Law in 2007, is an exception to this rule. Its cover brilliantly shows both the need for the book’s existence and the author’s point of origin. It depicts a man, presumably a pirate, standing in front of a globe and wondering about the correct designations of Europe and East Asia: Is Europe the Far West or the Center of the Globe? Is East Asia the Far East or the Middle Kingdom? Which perspective do we take for granted and what does this reveal about our mostly unconscious view of the world? A fitting subtitle for Onuma’s book could have been “Doubt as a Virtue.” Maybe due to his own appreciation of the doubting process, Onuma’s thoughts on the future of international law – as radical as they might be – are not presented to the reader in an off-putting, angry or inflammatory way. Instead, Onuma masters the art of questioning the ‘holy cows’ of international law or

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international society – for instance, the western dominance in these areas – in an elegant, wise and conciliatory way, seeing all sides of the conflict. Whereas western scholars sometimes tend to engage in academic boxing battles, Onuma’s argumentative style bears more resemblance to Aikido mastery. Onuma himself mentions the possibility that readers might find his argument too bold. However, in his view (which is easy to share), boldness is exactly what is needed to revitalise the study of international law and in turn to revitalise the actual functions of international law. In line with his wish to expand the reader’s mind, Onuma departs from the more formal writing style one generally associates with academia. His writing is rather conversational and subsists without an over-abundance of footnotes. This makes his book – despite the width of its subject – a delightful and relatively easy read, almost bearing resemblance to a good novel. Onuma addresses aspects of human life that generally don’t receive much attention in the study of (international) law, like art, sports, spiritual well-being or the virtues of modesty and beauty. This all-inclusiveness gives Onuma’s writing a well-rounded and refreshingly different tone, allowing his readers to reconsider no less than their views on the structure of (international) law, the functioning of (international) society and the needs of humanity. The book is divided into five chapters. Chapter 1 introduces the ‘transcivilisational’ perspective. Onuma starts out by posing the question: “What will be the shape of the twentyfirst century world, one of whose important components is international law?” He presupposes that international society will change from the State-centric and west-centric international society of the 20th century to a ‘multi-polar’ and ‘multi-civilisational’ global society. Onuma mentions a number of conflicts which have started to destabilise the existing global order in the 20th century and which continue to destabilise it in the 21st century. The first of these conflicts exists between the ‘transnationalisation’ of economics and information on the one hand, and the sovereign States system on the other. A second conflict emerged from the tension between the global quest for human dignity oftentimes driven by western societies and the persistent sense of victimisation and humiliation widely shared by people in the non-western world. The discrepancy between the increasing economic power of Asian nations, especially of China and India, and the persistent intellectual and informational hegemony of western nations, and of the United States in particular, created the third conflict destabilising the international society. Onuma goes on to explain prevalent perspectives to understand international law in the 20th century, namely the international and the transnational perspective. Because of the shortcomings of these perspectives, the author adds another perspective to understand international law in a more nuanced and comprehensive manner, the ‘transcivilisational perspective’. He describes the transcivilisational perspective in the following way: […] a perspective from which we see, sense, recognize, interpret, assess and seek to propose solutions to ideas, activities, phenomena and problems transcending national boundaries, by developing a cognitive and evaluative framework based on the recognition of plurality of civilizations and cultures that have long existed in human history.

Onuma follows his introduction of the transcivilisational perspective by mentioning realities requiring its adoption, for instance the decline of the non-intervention principle, the (false) idea of a clash of civilisations, and the need to transform international law by adapting to perspectives in a more pluralistic manner, thus addressing the alienation which large portions of humanity feel towards western-centric international law.

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The second chapter deals with power and legitimacy in international law. Onuma states that a legal order of any type cannot be created or maintained without these two elements. The author dismisses the notion that these relations are mutually opposing as “simplistic dualistic antipathy.” Instead, Onuma uses the international, transnational and transcivilisational perspectives to address the complex relationship between legitimacy and power, aiming to practically apply the theoretical framework he introduced in the first chapter to a specific problem. This three-layered approach allows the author to consider the matter in a multi-dimensional way – for instance, he addresses the often unnoticed power of international law to construe and construct social realities – which broadens the readers understanding of the relationship between law and power. Onuma closes the chapter by arguing that the transcivilisational perspective is a useful tool for rectifying the legitimacy deficit in international law. Chapter 3 bears the title: “Towards a proper understanding of general international law, customary international law, and the judiciary in global society.” With regard to the concept of general international law in the 20th century, Onuma questions its equation with the “so called ‘customary’ international law.” He particularly criticises the tendency of international lawyers to rely on Article 38 ICJ Statute in order to identify the cognitive basis of international law. Onuma gives the following reasons for finding this approach problematic: 1) Article 38 may not even exhaustively enumerate norms to be applied by the ICJ; 2) Article 38 stipulates norms to be applied by the ICJ and therefore adjudicative norms. However, according to the author, norms of international law are mainly discussed and dealt with as prescriptive laws (or norms of conduct) in various forums in global or domestic society. The practice of always referring to Article 38 ICJ Statute tacitly assumes equating norms of conduct with norms of adjudication; 3) classical writers such as Hugo Grotius did not think of international law as the norm of adjudication between States but as norms of conduct; 4) demonstrating that a certain norm is customary international law does not guarantee its universal validity; 5) in the 21st century world, it is not appropriate to equate customary international law, especially old ‘customary’ rules and principles, with universally valid international law because the overwhelming majority of humanity was excluded from the process of creating international law with a universal validity. Onuma resumes by analysing the attitude of the ICJ when it comes to the equation of general international law with customary international law, the ‘absurdity’ of relying on Article 38 ICJ Statute for identifying norms of international law and factors responsible for its overevaluation. He goes on to address the role of the judiciary in global society, aiming to liberate the study of law from excessive ‘judicial-centrism’ and fuelling the realisation that the major arena of international law is in non-judiciary forums. In the fourth chapter, the author re-views the history of international law with a bigger emphasis on the global (including trans-cultural, trans-religious and transcivilisational) legitimacy of international law instead of merely describing the globalising process as the growth or expansion of the European international legal system into a global international legal system. Onuma explains why it is important to reappraise the history of international law as a process of ‘inter-perception’ between the globalising European order of the world and agents of competing orderings of the world, like the “Sinocentric tribute system” and the ‘Islamocentric siyar system’: “[…] if this globalizing process is a process of law, and if international law is the law of international society as a whole, this law must be recognized as such law

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not only by Europeans but by members of the international society as a whole” (268). After addressing difficulties surrounding the history of international law, Onuma deals with the coexistence of regional civilisations in the pre-20th-century world and the globalisation of a Euro-centric ordering of the world in the 19th century. Having just elaborated on westcentric cognitive frameworks in international law, Onuma finishes the chapter by stating that the transcivilisational perspective is a theoretical device which is helpful to prevent the impoverishment of Eurocentrism or westcentrism. Chapter 5 addresses the highly interesting and controversial topic of human rights in a multi-polar and multi-civilisational world. Onuma states that he sees human rights as one of the most important means for protecting values and interests of humanity, rather than regarding human rights as a value in its own right. Not surprisingly, he suggests considering human rights – which are a product from west-centric modernity – from a perspective not limited to prevalent, modernistic and west-centric civilisation. According to him, human rights need to be re-conceptualised in order to be recognised by a larger portion of humanity. Onuma argues that human rights specially need to be liberated from their excessive libertycentrism (e.g. equating political and civil rights with human rights, neglecting economic, social and cultural rights) and individual-centrism (the author speaks of the false dichotomy between the individualistic west and the collective east). Because of the frequency of serious violations of human rights, he states that it is important to ground human rights not only in the religions, cultures and civilisations that gave birth to human rights, but also in those which have been alien to human rights. After addressing the problem of west-centrism in the ‘universality’ of human rights in detail and questioning the self-evident human rights (for instance, the previously mentioned idea of human rights as a means to protect values, not as a value in itself), Onuma dedicates himself to the search for transcivilisational human rights. He mentions the significance of international human rights instruments and states that he considers the Vienna Declaration of 1993 as possessing the highest legitimacy among all legitimate instruments. This is followed by an assessment of the modification and supplementation of international human rights norms from a transnational and transcivilisational perspective. Despite the benefits one can gain from reading Onuma’s book, it might leave the reader with a certain degree of sadness. It is a book that most likely could not have been written by a western scholar of international law. This raises the question of how much potential wisdom the study of international law over the centuries might have missed out on by being, inter alia, a western and male dominated field where the voices of scholars belonging to other groups of humanity were strikingly absent. For today’s teachers of international law, this realisation might fuel a very important mission: ensuring that the study and practice of international law in the 21st century will reflect the diversity of humanity more and more closely. The study of Onuma’s book seems to be a good starting point for those who wish to contribute to this mission. BERENIKE SCHRIEWER Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel

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Andreas Zimmermann (ed.): The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford University Press, Oxford 2011, cxxxiii + 1799 pages, ISBN 978-0-19-954251-2. A comprehensive commentary on the 1951 Geneva Convention relating to the status of refugees is long overdue. The convention is still the most important instrument in international refugee law, although over time it has been supplemented by new concepts, such as subsidiary protection. Many other important subsequent legal instruments refer to the 1951 Convention and its 1967 Protocol, including the EU Directive on Standards of Qualification (recently revised by Directive 2011/95 of 13 December 2011), the Asylum Procedure Directive 2004/83 as well as numerous national and international legal texts. The existing commentaries, e.g. Robinson’s 1953 book on the Convention or Paul Weis’s from 1965 are indispensible sources for the legislative history of the Convention and its interpretation in the post-war period, but cannot satisfy the need for a comprehensive up-to-date coverage of relevant domestic and international jurisprudence and more recent State practice. Large migration movements in the wake of the collapse of the former Soviet Union and the emergence of failed States, civil wars, armed conflicts and natural disasters have shown that the refugee issue is not going to be solved in the foreseeable future. The task as described by the editor is huge. The Convention has been recognised generally as the ‘Magna Charta’, serving as an ‘umbrella convention’ embracing a variety of different national laws and practices as well as different understandings of the Convention’s rights and duties. A substantial amount of these differences can be traced back to the compromise character of the original 1951 Convention which was already heavily struggling to accommodate different concepts of protection into one legal instrument. Basic legal questions concerning individual admission rights of asylum seekers, the rights of States to control and restrict entry in situations of spontaneous or mass refugee movement and the application of the Convention to the new international protectional needs of new types of asylum seekers have been either dealt with only in vague terms or omitted all together, deliberately or undeliberately. The substantive rights of persons asking for international protection during the different stages of a procedure, aptly described by J. Hathaway (The Rights of Refugees under International Law, 2005) leaves – in spite of Hathaway’s effort to bring it all into a logical system – so many questions open, that one wonders whether the 1951 Convention, especially with its inconsistent terminology, is really based upon a logical, coherent system of rights. The almost complete silence on procedural questions indicates that the problem of the status of asylum seekers and the implications of procedures for immigration control were largely ignored. The gaps in the Convention deal with issues such as the legitimacy of rejecting admission in case of arrival from a safe third country or safe country of origin are perhaps the most striking example for the Convention’s potential as a source of legal disputes as well as its capacity to survive for many decades as a dynamic instrument into which new human rights concepts could be integrated. In editing the volume, Andreas Zimmermann has taken a lot of care on devising a uniform format for the individual contributions. In general the reader will find an explanation of the function of the respective article, a description of its historical development, references to the

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other relevant norms of public international law and a subsequent sentence-by-sentence analysis. The main part of the book is devoted to an article-by-article analysis of the Convention and the Protocol, divided into different chapters following the structure of the Convention. Part 1 provides, through some general contributions on the historical development of international refugee law, fundamental commentaries on the following: the drafting history of the 1951 Convention and the 1967 Protocol, the general issues of interpretation of the 1951 Convention and a description of regional developments and of the preamble to the 1951 Convention and to the 1967 Protocol. These contributions provide some very useful information, in particular on the drafting history (Einarsen) and on the interpretation of the 1951 Convention (McAdam), to mention just two authors. It is taken for granted that interpretation of the Convention is not simply an issue of State practice and that the ‘international civil society’ has an important role in shaping and developing public international law, in relation to customary international law as well as in the interpretation of treaty law. Nevertheless, one may doubt whether, compared to State practice, the weight attributed to ExCom resolutions or statements of NGOs on legal issues really reflects properly the state of public international law making. The format device by the editor proves to be very useful; it facilitates rapid access to the relevant texts and documents and enables the reader to find the information sought very quickly. It is suitable for both judges and academics. The legislative history is usually well described and the applicable texts, including those from non-European countries, are properly described and easy to find in the commentary. That is the clear advantage of this book. It truly encompasses universal jurisprudence, literature and State practice, not just selected materials according to the individual authors. It displays a wider range of literature than is usual in the majority of Anglo-American writings on the Convention, encompassing many legal traditions and languages. There is also a useful list of travaux préparatoires documents as well as tables of cases (international, regional and domestic) and treaties and instruments, which substantially help to quickly identify all the relevant national and international documents. The style of analysis does of course vary among the group of 48 contributors, from 16 different countries, who have a range of professional backgrounds. My impression is that this does not in any way diminish the high academic standard of the book. In general the contributions provide a reliable and accurate account of the relevant legal arguments and issues at stake – irrespective of an individual author’s opinions and professional affiliation. The methodology is highly professional. The different legal views relating to specific questions of interpretation are clearly identified and distinguished from the evaluation of legal and policy arguments. A great amount of care is devoted to a clear distinction between legal interpretation and arguments of legal policy. The literature and case law is accurately reported and properly analysed. These are all features which contribute to the very high quality of the book, clearly a result of the careful selection of contributors and the subsequent instruction given by the editor on the style and type of contributions. In the refugee literature, one is frequently faced with a sometimes indistinguishable mixture of moral arguments, legal claims and policy. It is therefore no small achievement to get a collection of contributions of such a high standard.

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As an example one may mention the commentary of Article 1A (2) of the Convention by Zimmermann and Mahler, dealing with such highly sensitive issues as sexual minorities, persons refusing to perform military service and ecological refugees (426 et seq., 430 et seq., 440 et seq.). This contribution is a model for accurate and objective legal analysis. There are many more high profile contributions on controversial and less controversial, sometimes neglected provisions. Skordas describes very well the legislative history of the “old fashioned and awkwardly worded” Article 7 of the Convention, which deals with equal treatment. Indeed, he manages to find the potential of this article for strengthening the rights of refugees. Kälin, Caroni and Heim present a succinct 70-page analysis of the Article 33 (1) non-refoulement principle, arguing for a wide extraterritorial application of the Convention based primarily on an analogy with the ECHR jurisprudence. Some may find this analysis doubtful in the light of non-supportive State practice and the wording of the article, which indicates the opposite. Nevertheless, everything is pointed out very clearly. It is impossible to find a one-sided approach to any of the many controversial issues arising in the interpretation of the 1951 Geneva Convention, either in this section of the book or any other. Clearly, not every reader will agree with each contributor’s conclusions. What counts, however, is the book’s usefulness as an objective and professional legal analysis. This also makes the book an invaluable tool for those decision makers and administrators who might have a different perspective on the correct way to accommodate legitimate protection needs with public interests to control migration and prevent the abuse of the asylum procedure as a backdoor to illegal immigration. The book, no doubt, will very quickly become the standard commentary on the 1951 Convention. For judges, academics and practitioners in refugee law the book is simply indispensible in spite of its high price. Assuming that there will be a high demand from NGO practitioners and national refugee organisations, the publisher may consider a pocket book edition. KAY HAILBRONNER University of Konstanz

BOOKS RECEIVED (Inclusion in this list neither assures nor precludes later review.)

Orna Ben-Naftali (ed.): International Humanitarian Law and Human Rights Law. Oxford University Press, New York 2011, 388 pages. Enzo Cannizzaro (ed.): The Law of Treaties – Beyond the Vienna Convention. Oxford University Press, New York 2011, 464 pages. Jean d’Asperemont: Formalism and the Sources of International Law – A Theory of the Ascertainment of Legal Rules. Oxford University Press, New York 2011, 266 pages. Louise Doswald-Beck: Human Rights in Times of Conflict and Terrorism. Oxford University Press, New York 2011, 550 pages. Saelo Gumedze: The Peace and Security Council of the African Union-Its Relationship with the United Nations, the African Union and Sub-Regional Mechanisms. Åbo Akademi University Press 2011, Dissertation: Åbo Akademi University, 293 pages. Andrew Lang: World Trade Law after Neoliberalism – Re-imagining the Global Economic Order. Oxford University Press, New York 2011, 385 pages. Sir Hersch Lauterpacht: The Function of the International Community. Oxford University Press, New York 2011, 477 pages. P. G. McHugh: Aboriginal Title – The Modern Jurisprudence of Tribal Land Rights. Oxford University Press, New York 2011, 356 pages. Theodor Meron: The Making of International Criminal Justice – A View from the Bench (Selected Speeches). Oxford University Press, New York 2011, 320 pages. Marko Milanovic: Extraterritorial Application of Human Rights Treaties – Law, Principles and Policy. Oxford University Press, New York 2011, 276 pages.

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BOOKS RECEIVED

Dinah Shelton (ed.): International law and Domestic Legal Systems – Incorporation, Transformation and Persuasion. Oxford University Press, New York 2011, 676 pages. Bert Swart/Alexander Zahar/Göran Sluiter (eds.): The Legacy of the International Criminal Tribunal for the Former Yugoslavia. Oxford University Press, New York 2011, 550 pages. Antonios Tzanakopoulos: Disobeying the Security Council. Oxford University Press, New York 2011, 276 pages. Helmut Volger/Norman Weiß (Hrsg.): Die Vereinten Nationen vor globalen Herausforderungen – Referate der Potsdamer UNO-Konferenzen 2000–2008. Universitätsverlag Potsdam 2011, 411 pages. Jeremy Waldron: Torture Terror and Trade-Offs – Philosophy for the White House. Oxford University Press, New York 2010, 357 pages. Sienho Yee/Jaques-Yvan Morin (eds.): Multiculturalism and International Law – Essays in honour of Edward McWhinney. Martinus Nijhoff Publishers, Leiden 2009.