German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 55 (2012) [1 ed.] 9783428541591, 9783428141593

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VOLUME 55 · 2012

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 55 · 2012

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 Konstanz 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 • University of Fribourg BARDO FASSBENDER • University of St. Gallen DAVID FELDMAN • University of Cambridge 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 JÖRN AXEL KÄMMERER • Bucerius Law School Hamburg HELEN KELLER • University of Zurich 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 MARTIN NETTESHEIM • University of Tübingen

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 ALEXANDER ORAKHELASHVILI • University of Birmingham 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 CHRISTOPH SCHEWE • University of Latvia 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 STEPHEN TIERNEY • University of Edinburgh 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 STEVEN WHEATLEY • Lancaster University RÜDIGER WOLFRUM • Max Planck Institute for Comparative Public Law and International Law Heidelberg ALEXANDRA XANTHAKI • Brunel University

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 55 · 2012

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: KERSTIN ODENDAHL / NELE MATZ-LÜCK Honorary Editor: JOST DELBRÜCK Assistant Editors: NICHOLAS ENGLISH / SYLVIA NWAMARAIHE Editorial Assistants: SINA HARTWIGSEN / BENJAMIN MAASS / NIKLAS SIEVERS 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 Zürich 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 utilised in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2013 Duncker & Humblot GmbH, Berlin Printed by AZ Druck und Datentechnik, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-14159-3 (Print) ISBN 978-3-428-54159-1 (E-Book) ISBN 978-3-428-84159-2 (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 ARAB SPRING AND INTERNATIONAL LAW JEAN-YVES DE CARA: The Arab Uprisings Under the Light of Intervention . . . . . . . . .

11

JAVAID REHMAN AND ELENI POLYMENOPOULOU: Justice After Democracy in the Arab World: Islamic Law Perspectives on Accountability . . . . . . . . . . . . . . . . . . . . . . .

53

FOCUS

DISASTER PREPAREDNESS AND RESPONSE DAVID FISHER: The Future of International Disaster Response Law . . . . . . . . . . . . . . . .

87

WALTER KÄLIN: The Human Rights Dimension of Natural or Human-Made Disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 SARA E. DAVIES: Natural Disasters and the Responsibility to Protect . . . . . . . . . . . . . . .

149

REBECCA M. BRATSPIES: State Responsibility for Human-Induced Environmental Disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 DIRK HANSCHEL: Prevention, Preparedness and Assistance Concerning Nuclear Accidents – Effective International Legal Framework or Patchwork? . . . . . . . . . . . . 217 MARKUS KOTZUR: European Union Law on Disaster Preparedness and Response . . .

253

GENERAL ARTICLES ROSANNE VAN ALEBEEK: Jurisdictional Immunities of the State (Germany v. Italy): On Right Outcomes and Wrong Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

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MARCO CALISTO: Jurisdictional Immunities of the State: Germany v. Italy before the ICJ from an Italian Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 ATHANASIOS YUPSANIS: The Meaning of ‘Culture’ in Article 15 (1)(a) of the ICESCR – Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 MART SUSI: The Definition of a ‘Structural Problem’ in the Case-Law of the European Court of Human Rights Since 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 MALGOSIA FITZMAURICE: Indigenous Whaling and Environmental Protection . . . . .

419

PRABHAKAR SINGH: Mercantile Metaconstitutionalism: Interpretation of the WTO Treaty and the Developing Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465 NICHOLAS TSAGOURIAS: Scotland: Independence and Membership of the UN and the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509

GERMAN PRACTICE CHRISTOPHE EICK: The UN Security Council and International Law in 2012 . . . . . .

537

PETER WITTIG: Making UN Sanctions Work: Germany’s Chairmanship of the AlQaida/Taliban Sanctions Committee of the UN Security Council . . . . . . . . . . . . . . . 561 ANTJE SIERING: Germany’s Contribution to the Protection of Biodiversity and Ecosystem Services by Hosting the IPBES Secretariat in the UN City of Bonn . . . . . . . . . . 573 NICHOLAS ENGLISH AND FELIX BIEKER: Upholding Data Protection Law Against Multinational Corporations: German Administrative Measures Relating to Facebook 587 CHRISTOPH SEIDLER: European Commission v. Germany: The Data Retention Directive – Legal or Political Issue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 PATRICK BRAASCH: Margin of Appreciation or a Victimless Crime? The European Court of Human Rights on Consensual Incest of Adult Siblings . . . . . . . . . . . . . . . . . 613 JULIA GEBHARD AND JOHANNES FUCHS: Equal (Enough), at Last? Latest ECtHR Jurisprudence in Ahrens v. Germany and Kautzor v. Germany on the Rights of Biological Fathers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625

TABLE OF CONTENTS

7

RAINER GROTE: The ECHR’s Rulings in von Hannover v. Germany (No. 2) and Axel Springer AG v. Germany: Rebalancing Freedom of the Press with the Respect for Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 JULIA MÜLLER: The Arrest of G8 Protestors: The Contested Legitimacy of Preventive Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649 STEPHANIE SCHLICKEWEI: Preventive Detention Revisited Before the ECtHR: O.H. v. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 JULIA GLOCKE: German Measures Against Islamic Extremist Organisation Upheld in Strasbourg: Hizb Ut-Tahrir and Others v. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671 TOBIAS THIENEL: The Appointment of Public Officials, Interim Measures and Article 6 of the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 679 HANS MICHAEL HEINIG AND STEFAN KIRCHNER: Private Prayer in Public Schools: The Judgment of the German Federal Administrative Court of 30 November 2011 689 ANDREA MEYER: Handling of Somali Pirates from Capture until Transfer to Kenyan Authorities in Accordance with International Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699

BOOK REVIEWS Louise Doswald-Beck: Human Rights in Times of Conflict and Terrorism (JOHANN)

713

Saelo Gumedze: The Peace and Security Council of the African Union – Its Relationship with the United Nations, the African Union and Sub-Regional Mechanisms (ZIMMERMANN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715 Andrew Lang: World Trade Law after Neoliberalism – Re-imagining the Global Economic Order (MAGGIO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 716 Sir Hersch Lauterpacht: The Function of Law in the International Community (JIA)

718

Marko Milanovic: Extraterritorial Application of Human Rights Treaties (HOFMANN) 721 William Schabas: Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals (FUCHS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 724

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TABLE OF CONTENTS

Bert Swart/Alexander Zahar/Göran Sluiter (eds.): The Legacy of the International Criminal Tribunal for the Former Yugoslavia (WATERS) . . . . . . . . . . . . . . . . . . . . . . . 727 Antonios Tzanakopoulos: Disobeying the Security Council (SKORDAS) . . . . . . . . . . . . . .

731

Helmut Volger/Norman Weiß (eds.): Die Vereinten Nationen vor globalen Herausforderungen – Referate der Potsdamer UNO-Konferenzen 2000–2008 (KOHOUTEK) 735 BOOKS RECEIVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

741

FORUM THE ARAB SPRING AND INTERNATIONAL LAW

The Arab Uprisings Under the Light of Intervention JEAN-YVES DE CARA(

ABSTRACT: Diverse uprisings took place in the Middle East and North Africa due to various political, tribal, sectarian, religious, social, and economic factors. In several cases they turned into civil wars. As a principle of international law, intervention is undoubtedly prohibited. A request from a government may justify intervention or even annul its very nature as interference. Humanitarian intervention or the new doctrine of responsibility to protect, have also been invoked in that context. Interventions in Bahrain, Libya and Syria are discussed here. However, there is no coherence duty in politics, and States may decide to intervene or not on variable legal basis. KEYWORDS: Arab Uprising, Intervention, Civil War, Legal Basis, Intervention on Invitation, GCC, Responsibility to Protect, Humanitarian Intervention, Authorisation by Security Council, NATO, Assistance to Insurgents, Political Interests

I. Introduction The Arab uprisings were received with bewilderment by the international society. Aware of the risk of destabilisation of the whole region, foreign States reacted through diplomatic channels,1 however the preferment of peaceful settlement proves more difficult where disputes do not oppose two States but rather undefined groups, factions or parties within the same State. Advices have been given. Resignations and changes have been duly noted. The United Nations (UN) took a cautious approach. The UN Secretary General insisted “on respect for the rights of peaceful protest and assembly,” recalling that in responding the protesters “authorities have an obligation to respect human rights,” and urged all parties to exercise restraint and engage in ( Professor at the Faculty of Law, Paris Descartes, Sorbonne Paris Cité, previously the Executive Director of Paris Sorbonne University Abu Dhabi (2009–2012).

Louis Balmond (under the direction of) Chronique des faits internationaux, Revue Générale de Droit International Public (RGDIP) 115 (2011), 551, 560–561. 1

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dialogue and a process to respect and reflect the will of the people and their legitimate aspirations.2 Although there are common challenges in the region and major principles to uphold, each country is unique and all situations are different. Diverse factors – tribal, religious, demographic, sectarian, military, and geopolitical – may explain every national unrest and in most cases the issues raised are not yet resolved. There is no general explanation for the Arab uprising nor was there a common cause. In Bahrain, the Shi’a majority demanded more power with the alleged support of Iran, in Yemen tribal and political tensions prevailed. In Libya tribal rivalry and misuse of national wealth by a despotic leader infuriated the people. Nepotism and misappropriation destroyed the regime in Tunisia, just as in Egypt where the military played a key role. In some countries like Morocco, the traditional bond between the nation and the King, Amir al-Mu Minin (Commander of the Believers), helped the initiation of reforms.3 Inevitably, such an upheaval in the Arab world challenges security of international relations and raises international legal issues related to recognition, assistance to foreign governments, implementation of humanitarian law in civil war, or the role of international organisations.4 As the blast wave has not yet subsided,5 it seems difficult to appreciate, at this early stage, the invariable or the changing features of international law through these events. However, the theme of ‘intervention’ seemingly dominates: and every national crisis has affected, in its own way, the balance of powers in this region (the Middle East and North Africa), which is of crucial importance for the international society. Ban Ki-Moon, Opening remarks to the press at stakeout, United Nations News Center, 17 February 2011, available at: http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID= 1075#.UOBCg2-NtEs (accessed on 30 December 2012). 2

Charles Saint-Prot/Frédéric Rouvillois/Jean-Yves de Cara, Le Maroc en Marche: le développement politique, social et économique du Maroc (2009); Ahmed Bouachik/Michel Degoffe/Charles Saint-Prot, La Constitution marocaine de 2011 (2012). 3

See ICTY, Appeal Chamber, Case No. IT-94-1, Duško Tadić, Judgment of 2 October 1995, 96 et seq. These points have been extensively discussed by the Institut de Droit International (IDI), see Dietrich Schindler, Le principe de non-intervention dangs les guerresciviles, Rapport provisoire, Annuaire de l’Institut de droit international (Annuaire IDI) 55 (1973), 416; IDI, The Principle of Non-Intervention in Civil Wars, Wiesbaden Resolution, 14 August 1975, available at: http://www.idi-iil.org/idiE/ resolutionsE/1975_wies_03_en.pdf (accessed on 27 February 2013). See also Guiseppe Sperduti, The Protection of Human Rights and the Principle of Non-intervention in the Domestic Concerns of States, Annuaire IDI 63 (1989), 309. 4

5

At the time of writing.

THE ARAB UPRISINGS UNDER THE LIGHT OF INTERVENTION

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For Talleyrand, “non-intervention is a term meaning almost the same thing as intervention.” The realistic aphorism of the famous diplomat summarises the punctilious questioning of lawyers who have consistently struggled to define the concept.6 Intervention is undoubtedly prohibited.7 That is the consequence of sovereignty, political independence, self determination and territorial integrity, particularly when it involves the use of armed force. That prohibition is embodied in many treaties,8 resolutions9 and rulings from the International Court of Justice (ICJ).10 For the United Nations General Assembly (GA), prohibition covers: armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements […] the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind […] activities consisting in organizing, assisting, fomenting, financing, inciting or tolerating subversive, terrorist or armed activities aiming at the violent overthrow of the regime of another State, or interference in civil strife in another State.11

Within such a comprehensive concept, many actions have been loosely defined as ‘intervention’ by governments from a mere statement or inclusion on the agenda of the UN, while an armed operation followed by occupation would not be described as such.12 Classification depends largely on circumstances and political expediency: 6 Jacques-Alain de Sédouy, Le Concert européen. Aux origines de l’Europe, 1814–1914 (2009); Alan Vaughan Lowe, The Principle of Non-Intervention: Use of Force, in: Alan Vaughn Lowe/Colin Warbrick (eds.), The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst: Essays in Honour of Michael Akehurst (1994), 66.

Nguyen Quoc Dinh/Patrick Daillet/Mathias Forteau/Alain Pellet, Droit international public (8th ed. 2009), 48; Sir Robert Jennings/Sir Arthur Watts, Oppenheim’s International Law, vol. I (9th ed. 1996), 427; James E. S. Fawcett, Intervention in International Law: A Study of Some Recent Cases, Recueil des Cours (RdC) 63 (1961-II), 343, 347; Lowe/Warbrick (eds.) (note 6). 7

Jennings/Watts (note 7), 428, footnote 6; Charter of the League of Arab States, 22 March 1945, reprinted in: International Human Rights Reports 12 (2005), 893. 8

9

GA Res. 2131 (XX) of 3 December 1965; GA Res. 2625 (XXV) of 24 October 1970.

International Court of Justice (ICJ), Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, 106–111. 10

11

GA Res. 2131 (XX) and GA Res. 2625 (XV) (note 9).

For the examples of the United States (US) opposing the inclusion of Puerto Rico on the GA agenda on the basis of Art. 27 of the UN Charter, the same about Korea in 1950, or France opposing Morocco in 1953 and Algeria in 1956 being on the agenda, see Bruno Simma/Hermann Mosler/Albrecht Randzelhofer/et al. (eds.), The Charter of the United Nations: A Commentary (2nd ed. 2002), 153. 12

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while the French government had long hesitated in making a statement on Tunisia or Egypt under the cover of non-interference in domestic affairs of a foreign State, it considered the military action in Libya as pure humanitarian intervention.13 International law is stricter, and according to Oppenheim, “[i]ntervention is dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things.”14 The purpose of intervention embodies the maintaining or altering of a situation, but it may be conducted on such grounds that interference appears transformed and legally admissible. Where coercion does not exist, the nature of intervention is different – it is carried out not against the will of the State, but with its consent. For that reason the Institut de Droit International (IDI)15 employs the term ‘assistance’ to avoid the ‘aggressive’ dimension of intervention.16 Contemporary international law also accepts the justification of intervention on the basis of self-defence or for the general interest of the international community.17 Indeed, while the legal order of the UN Charter is founded on the prohibition of the use of force,18 its second pillar is the protection of human rights.19 Humanitarian goals may therefore legitimate intervention.20 That gears the reasoning on a dialectic of legality and legitimacy which involves a high degree of political Also note the occupation of Afghanistan by Soviet troops as from 1979 on the basis of an intervention on request of the local government. 13 Statement by the French government in the French Senate, 22 March 2011, Speech of Prime Minister François Fillon, available at: http://www.diplomatie.gouv.fr/fr/pays-zones-geo/libye/la-franceet-la-libye/evenements-4528/article/libye-intervention-des-forces (accessed on 27 February 2013). 14

Lassa Francis Oppenheim, International Law: A Treatise, vol. 1: Peace (2nd ed. 1912), § 134.

For further information, see the IDI’s website, available at: http://www.idi-iil.org/index.html (accessed on 11 January 2013). 15

16 Gerhard Hafner (Rapporteur), IDI, Report by the 10th Commission, Present Problems of the Use of Force in International Law, Sub-Group on Intervention by Invitation, Annuaire IDI 74 (2011), 181. 17 See for example the interventions of Belgium, supported by the United Kingdom and the United States, in Congo (1964), the United States in the Dominican Republic (1965) or in Grenada (1983), Israel in Entebbe/Uganda (1976), France in Shaba Zaire (1978) and the United States in Iran (1980) and Liberia (1990).

Olivier Corten, The Law Against War (2010); see also on domestic jurisdiction and the limits of the use of force Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (1969). 18

William Michael Reiseman, Sovereignty and Human Rights in Contemporary International Law, American Journal of International Law (AJIL) 84 (1990), 866. 19

See in detail Francis K. Abiew, The Evolution and Practice of Humanitarian Intervention (1999); Simon Chestermann, Just War or Just Peace? Humanitarian Intervention and International Law (2001). 20

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assessment. Governments are never obliged to intervene.21 They may do so either to answer an invitation from the foreign government concerned as in Bahrain (see infra, Section II), or use force for the protection of human rights as invoked in Libya under the responsibility to protect (R2P) doctrine (see infra, Section III), but they may just as well refrain to intervene as in the present situation in Syria (see infra, Section IV).

II. A Requested Intervention In Bahrain serious troubles started in February 2011.22 They result from tensions which existed for many years in the Kingdom and which burst into riots on several occasions, particularly in 1981 and 1994.23 They reflect partly the demographic and sectarian dimension of the country: the majority of the population is Shi’a while the Sunni minority has been ruling the country under the Khalifa dynasty since the 18th century. The political context (see infra, A) explains the need for the local government to call for outside assistance (see infra, B).

A. The Political Context of the Intervention

When Sheikh Hamad bin Isa Al Khalifa succeeded his father in March 1999, Bahrain entered a more liberal phase.24 Obviously, the reform policy was inspired by the idea to prevent social protest which had been riddled with violence in the 1990s.

21

Jean-Baptiste Jeangène Vilmer, La guerre au nom de l’humanité: Tuer ou laisser mourir (2012).

The narrative of events is reported in the Report of the Bahrain Independent Commission of Inquiry, 23 November 2011, 65 et seq., available at: http://www.bici.org.bh/BICIreportEN.pdf (accessed on 30 December 2012) (BICI Report). 22

23 See John E. Peterson, Bahrain: The 1994 –1999 Uprising, Arabian Peninsula Background Notes APBN – 002 (January 2004), available at: http://www.jepeterson.net/sitebuildercontent/sitebuilder files/apbn-002_bahrain_1994-1999_uprising.pdf (accessed on 27 February 2013); Munira Fakhro, The Uprising in Bahrain: An Assessment, in: Gary G. Sick/Lawrence G. Potter (eds.), The Persian Gulf at the Millennium, Essays in Politics, Economy, Security and Religion (1997), 167. 24 John E. Peterson, Bahrain’s First Steps Towards Reform Under Amir Hamad, Asian Affairs 33 (2002), 216; id., Bahrain: Reform, Promise and Reality, in: Joshua Teitelbaum (ed.), Political Liberalization in the Persian Gulf (2009), 157.

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Sectarian dimension also prevail in the Bahrain crisis.25 The Sunnni and Shi’a populace were divided from the beginning of Islam, but they have grown more and more estranged with the strong desire for Iran to pose as the religious leader and the shield of the Shi’a community in the Arab world.26 In Bahrain the Shi’a represents 75 % of the population,27 while the power stays in the hands of a Sunni minority. In 2011, beyond the social protest, the opposition, led by Al Wefak and other Islamist groups, called for the strict implementation of Sharia law and the end of the ‘American occupation’, pointing to the presence of the Fifth Fleet of the United States (US) Navy based in Bahrain.28 Such a move would considerably weaken the situation of Saudi Arabia,29 it would deprive the Western powers30 of a unique location in the Gulf, and it would strengthen Iran’s position. Considering those risks and the evolution of the demonstrations in February and early March of 2011, with the return of historical opposition leaders, and also acts of vandalism, the Bahraini government took emergency measures.31 With the escalation of violence following Shi’a claims, having 25 Stephen Wright, Fixing the Kingdom: Political Evolution and Socio-Economic Challenges in Bahrain, Georgetown University Center for International and Regional Studies, Occasional Paper No. 3 (2008), available at: http://qspace.qu.edu.qa/bitstream/handle/10576/10759/No_3_Fixing_the_ Kingdom.pdf?sequence=1 (accessed on 27 February 2013).

See Sabrina Mervin, L’Iran et les mondes chiites (2007); Laurence Louër, Chiisme et politique au Moyen Orient (2008); Cyril Glassé, The Concise Encyclopaedia of Islam (1991); Iftekhar Mahmood, Shiism: A Religion and Political History of the Shi’i Branch of Islam (2007). For the situation in the Arabian Gulf, see Juan Cole/Nikki Keddies (eds.), Shi’ism and Social Protest (1986); Graham E. Fuller/ Rend R. Francke, The Arab Shi’a: The Forgotten Muslims (2000). 26

27 There is no official survey and the estimates vary between 50 % and 80 %; the 75 % figure is given by Denis Bauchard, Le nouveau monde arabe (2012), 21.

Douglas Katz, Navy’s Fifth Fleet Key to Stability in Bahrain, The Hill’s Congress Blog, 29 October 2012, available at: http://thehill.com/blogs/congress-blog/foreign-policy/264553-navys-fifth-fleetkey-to-stability-in-gulf-bahrain (accessed on 27 February 2013). 28

Simon Mabon, The Battle for Bahrain: Iranian-Saudi Rivalry, Middle East Policy 19 (2012) 84; The Oil Drum, The Strategic Importance of Bahrain to Saudi Arabia, 29 June 2011, available at: http://oilprice.com/Geopolitics/Middle-East/The-Strategic-Importance-Of-Bahrain-To-SaudiArabia.html (accessed on 27 February 2013). 29

Geoffrey Kemp, The New (and Old) Geopolitics of the Persian Gulf, Foreign Policy Research Institute, Footnotes, Newsletter (2000), available at: http://www.fpri.org/footnotes/061.200004.kemp. geopoliticspersiangulf.html (accessed on 27 February 2013); Huda Al Husseini, Asharq Alawsat, 13 June 2011, The GCC in Bahrain: Measure Meant to Prevent Foreign Intervention, available at: http://www.asharq-e.com/news.asp?section=2&id=25520 (accessed on 27 February 2013), citing an interview with Sami al Faraj, head of the Kuwait Center for Strategic Studies and GCC advisor. 30

31

The narrative of events appears in Chapter IV of the BICI Report (note 22).

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in mind the risk of civil war and destabilisation of the whole region, the King officially asked for Gulf Cooperation Council (GCC) troops to be dispatched immediately to maintain order and stability.32 This reinforcement came through, with 1,000 Saudi soldiers as well as some 500 soldiers from the United Arab Emirates (UAE), less than 24 hours after Bahraini police clashed with demonstrators in a violent confrontation, and later on Qatari forces joined the Peninsula Shield Forces.33 The King declared a three months state of National Safety in the country after the GCC troops arrived.34 There were also naval reconnaissance and patrol missions by Kuwaiti vessels off the coasts of the Kingdom, in order to prevent the delivery of weapons to groups participating in demonstrations. On 19 March 2011, the level of violence decreased, with fewer reports of clashes between protesters and the police, and from 21 March 2011, many aspects of life returned to normal; however, there were other waves of demonstrations which became more limited with time.35

B. The Legal Basis for the Intervention

A government which legally exercises authority over a territory and population of a State is entitled to protect itself against armed opposition or riots on that territory. Manipulations from outside the country and terrorism underscore that duty as consequence of State sovereignty. The situation might be different where the unrest turns into civil war which by definition does not cover local disorders or riots.36 The legal writings tend to accept the legality of ‘intervention by invitation’ as discussed and accepted by the IDI.37 Practice shows authoritative evidence of the 32 Al Jazeera, Bahrain ‘Asks for Gulf Help’, 14 March 2011, available at: http://www.aljazeera. com/indepth/spotlight/bahrain/2011/03/201131454020610721.html (accessed on 27 February 2013) and BICI Report (note 22), para. 1578. 33

BICI Report (note 22), para. 501.

Kingdom of Bahrain, Royal Decree No. 28, On Cases Relates to National Safety, 15 March 2011, available at: http://www.biciactions.bh/wps/themes/html/BICI/pdf/1720/decree_28_2011_en.pdf (accessed on 30 December 2012). 34

35

See generally the BICI Report (note 22).

36

IDI Resolution (note 4).

Mohamed Bennouna, Le consentement à l’ingérence militaire dans les conflits internes (1974); Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, British Yearbook of International Law (BYIL) 56 (1985), 189. 37

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admissibility of such intervention at the request of the government; whether it occurs in combination with an authorisation from the UN Security Council38 as in Macedonia or Afghanistan in 2001, Sudan in 2004, Timor Leste in 2006, Kosovo in 2008 or on the exclusive basis of the consent of the target State39 as in the Solomon Islands in 2003, or in Tonga in 2006. Several criteria may be applied to evaluate the justification in the Bahrain case.

1. The Consent The form of the consent varies. It may be provided through a treaty such as treaties of guarantee or treaties of assistance,40 or expressed ad hoc. In some cases the consent has been given a posteriori and for that reason might be doubtful as to the genuine will of the requesting government. The form of the prior consent is not important as long as it is explicit and clearly aims at military assistance.41 Conversely, there is further discussion as to the scope of the consent expressed by treaty. Does it create automatically a right or a duty to intervene? Has the consent been originally invalid because of fraud, corruption, coercion or violation of peremptory norms such as the prohibition of the use of force?42 Circumstances have to be looked at carefully. Further, the target Jean-Yves de Cara, Le droit d’intervention dans le droit international contemporain, in: Jean-Louis Sourioux/Hafiza El Haddad/Béchir Bilani/Ibrahim Traboulsi (eds.), Les Conférences du CEDROMA, vol. II, 2002–2006 (2008), 365; Olivier Corten/François Dubuisson, L’hypothèse d’une règle émergente fondant une intervention militaire sur une ‘autorisation implicite’ du Conseil de sécurité, RGDIP 4 (2000), 873. 38

See Georg Nolte, Intervention by Invitation, Max Planck Encyclopedia of Public International Law (MPEPIL), available via: http://www.mpepil.com (accessed on 27 February 2013). 39

40 The Treaty of Guarantee of the Republic of Cyprus, 16 August 1960, available at: http://www.mfa. gov.cy/mfa/mfa2006.nsf/All/484B73E4F0736CFDC22571BF00394F11/$file/Treaty%20of%20G uarantee.pdf (accessed on 15 January 2013). Treaties signed in 1960 by France with several African States (Central African Republic, Chad, Congo (Quadripartite Defence Agreement of 11th, 13th, 15th August 1960), Gabon (17 August 1960), Mali (22 June 1960), Madagascar (27 June 1960); see further Maurice Ligot, Les Accords de Cooperation Entre la France et les États Africains et Malgache d’expression Française, PhD Thesis (1964). 41 Doswald-Beck (note 37). The IDI Resolution of 1975 regards the legitimacy of intervention à la demande expresse of the foreign government as undisputed, see IDI Resolution (note 4), 126.

See Arts. 48 to 53 of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331. The influence of private law theory of validity of contracts has also been discussed, see Hersch Lauterpacht, Private Law Sources and Analogies of International Law (1927), 166; Paul Reuter, Principes de droit International Public, RdC 103 (1961-II), 539–542. 42

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State should be entitled to revoke the treaty, object to the military measures, and withdraw its consent to foreign intervention.43 In addition to the treaty, a request for prior intervention safeguards the genuine consent of the target State. The requested intervention may also reflect a regional or multilateral solidarity, particularly when it helps fighting terrorism or constitutes counter-intervention.44 Such a ‘solidarity clause’45 exists in the European Union (EU) in relation to terrorism or catastrophe of natural or human origin, and assistance is provided at the request of the political authorities of the concerned Member State.46 In the GCC, such a clause47 had been introduced and was invoked in the present situation. When the GCC was established in reaction to the Iranian revolution, one of the objectives of the members was to protect themselves as a group of Arab monarchies facing the renewal of Persian expansion.48 In response to the escalation by both Revocation of a political treaty is certainly easier for a State than for any other treaty: the right of denunciation or withdrawal may be implied by the nature of the treaty, see Art. 56 of the VCLT (note 42); the use of armed forces of a foreign State within the territory of a State which withdraws its consent would be regarded as an aggression according to Art. 3 (e) of GA Res. 3314 (XXIX) on the definition of aggression. The matter is discussed by Hafner (note 16), 188 et seq. 43

John Perkins, The Right of Counter-Intervention, Georgia Journal of International and Comparative Law 17 (1987), 171; Awol Kassim Allo, Counter-Intervention, Invitation, Both or Neither? An Appraisal of the 2006 Ethiopian Military Intervention in Somalia, Mizan Law Review 3 (2002), 201. 44

45

Markus Kotzur, European Union Law on Disaster Preparedness and Response, GYIL 55 (2012).

Art. 222 of the Treaty on the Functioning of the European Union (TFEU), 30 March 2010, OJ 2010 C 83, 47, 148. 46

There was no defence clause in the agreement when the GCC was established, as the ‘solidarity clause’ was introduced later on with the creation of the Peninsula Shield Force in 1984, see infra, note 49. 47

48 There are several causes of rivalry between Arab States and Iran in the region such as the dispute over three islands with the UAE, the nuclear program, the tension between Shi’ites and Sunnites, the balance between Saudi Arabia and Iran in the region. When they announced their decision to establish the GCC, the Foreign Affairs ministers stated that “this step comes in conformity with the Arab nation’s national objectives and within the framework of the LAS Charter which urges regional cooperation that is aimed at strengthening the Arab nation,” see Ruhi K. Ramazani, The Gulf Cooperation Council Record and Analysis (1988), 12 et seq. See also John A. Sadwick (ed.), The Gulf Cooperation Council: Moderation and Stability in an Interdependent World (1987); Erik R. Peterson, The Gulf Cooperation Council Search for Unity in a Dynamic Region (1988); United Kingdom (UK) House of Commons, Committee on Foreign Affairs, Global Security: The Middle East, 8th Report of Session 2006/2007, 13 August 2007, paras. 202–203, available at: http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/ 363/363.pdf (accessed on 27 February 2013); Tariq Khaitous, Why Arab Leaders Worry About Iran’s Nuclear Program, Bulletin of the Atomic Scientists, 23 May 2008, available at: http://www.thebulletin. org/web-edition/features/why-arab-leaders-worry-about-irans-nuclear-program (accessed on 27 February 2013); Henner Fürtig, Iran’s Rivalry with Saudi Arabia Between the Gulf Wars (2006).

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parties to the Iran-Iraq War, the GCC created the Peninsula Shield Force in 1984.49 The mission of that force, however, had not been publicly defined. In particular, it was not clear whether the joint force would have authority to intervene in cases of domestic emergency.50 At first, the force had not been viewed as a very efficient military tool51 but rather as a symbol of the desire of the GCC States for a common defence, until its first use in Bahrain in 2011. However, the GCC Foreign Ministers reached a tentative consensus on a Bahraini proposal for greater military and security cooperation in June 2010 which reflected the current political climate in the Gulf.52 Hence in 2011, the following year, the government of Bahrain called for the assistance of the Peninsula Shield Force which responded on the basis of the 1984 security arrangement: the ad hoc request triggered the implementation of the agreement.

2. The Requesting Authority In some cases, the legal status and the legitimacy of the requesting authority have been questioned: troops were sent to answer a request expressed by an authority which in fact was under the control of the intervening State. In such circumstances, the intervention allegedly justified by reference to invitation cannot be regarded as legally acceptable.53 Thus, doctrine and practice rely on the criteria of ‘effectiveness’. 49 Glenn P. Kuffel, The Gulf Cooperation Council’s Peninsula Shield Force, 7 February 2000, available at: http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA378521 (accessed on 30 December 2012).

Global Security Organization, Gulf Cooperation Council (GCC), available at: http://www.global security.org/military/world/gulf/gcc.htm (accessed on 28 February 2013). 50

It did not take part in the Gulf war in 1991 as a distinct unit, in spite of the intention made public by the members with Egypt and Syria to establish a deterrent force to protect Kuwait. 51

“The war in Iraq, the recent situation in Yemen, tension over the Iranian nuclear programme, the sanctions against Teheran and the Iranian naval exercises, all present a security challenge to the GCC,” said Ibrahim Al Rumaihi, executive director of the Bahrain Institute of Political Development. See Mazen Mahdi, The National, 24 June 2010, Bahrain Announces Plan for GCC Co-Operation, available at: http://www.thenational.ae/news/world/middle-east/bahrain-announces-plan-for-gcc-co-operation (accessed on 30 December 2012). 52

53 For the examples of Hungary 1956, the Dominican Republic 1965, Czechoslovakia 1968, Afghanistan 1979, Grenada 1983, Panama 1989 or Iraq 2003, see also Doswald-Beck (note 37) and Hafner (note 16); Jenö Györkei, Soviet Military Intervention in Hungary, 1956 (1999); Lawrence Yates, Intervention in the Dominican Republic 1965–1966, in: John T. Fisher (ed.), The Savage Wars of Peace (1998), 135; David S. Bogen, The Law of Humanitarian Intervention: United States Policy in Cuba (1898) and in the Dominican Republic (1965), Harvard International Law Club Journal 7 (1966), 296;

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Jennings and Watts uphold that the government should be effective, legitimate and internationally recognised.54 The IDI in 2011 considers that the request should reflect “the free expression of the will of the requesting State and its consent to the terms and modalities of the military assistance.”55 These conditions were undoubtedly satisfied in the case of Bahrain. The only point of contention which appears in the academic discussion could be that of ‘democratic legitimacy’.56 However, precedents show that authorities who acceded to power in a non-democratic way have called for external assistance without any objection.57 Such a democratic requirement is not within the field of positive international law, it could lead to abuse and interference in domestic affairs.58 Another requirement or impediment to intervention may be considered. Every State is bound by the obligation to respect fundamental human rights under international law. This is an erga omnes obligation.59 Thus the intervening State would certainly not be legally founded to intervene in violation of human rights, nor would Jiri Valenta, Soviet Intervention in Czechoslovakia, 1968: Anatomy of a Decision (1991); Patrick C. R. Terry, Afghanistan’s Civil War (1979–1989): Illegal and Failed Foreign Interventions, Polish Yearbook of International Law 31 (2011), 107; Rashleigh Jackson, Non-Intervention and Intervention: CARICOM in Action, Grenada 1979 and 1983, in: Kenneth Hall/Myrtle Chuck-A-Sang (eds.) Intervention, Border and Maritime Issues in CARICOM (2007), 1; Simon Chesterman, Rethinking Panama: International Law and the US Invasion of Panama, 1989, in: Guy S. Goodwin-Gill/Stefan Talmon (eds.), Essays in Honour of Ian Brownlie (1999), 57; Cherif Bassiouni, The Legal Status of US Forces in Iraq from 2003–2008, Chicago Journal of International Law 11 (2010), 1; Troy Davis, The Legitimacy of War: Toward a New Principle for Intervention, with its Application to the Iraq War of 2003, in: Hall Gardner/ Oleg Kobtzeff (eds.), The Ashgate Research Companion of War (2012), 169; Bertjan Verbeek, Does Might Still Make Right? International Relations Theory and the Use of International Law Regarding the 2003 Iraq War, Netherlands Yearbook of International Law 42 (2011), 193. 54

Jennings/Watts (note 7), 435.

Hafner (note 16), Art. 1 (b). An alternative draft presented by Professor Hafner referred to legitimacy, effectiveness and recognition conditions which were not kept in the final version of the resolution. 55

56

Hafner (note 16), 232.

For the example of Afghanistan in 1979, see supra, note 53; for the French intervention in the Central African Republic in 1979, see Jean Charpentier, Pratique française du droit international, Annuaire Français de droit international (AFDI) 25 (1979), 908, 962; Philippe Chapal, L’intervention militaire de la France en Centrafrique, Ares, Défense et Sécurité III (1980), 307. 57

Jean d’Aspremont, Legitimacy of Governments in the Age of Democracy, New York University Journal of International Law and Politics 38 (2006), 877. 58

59 ICJ, Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain), Merits, Judgment of 5 February 1970, ICJ Reports 1970, 3, para. 34.

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it be to assist in the commission of a wrongful act. More specifically, parties to the International Covenant on Civil and Political Rights (ICCPR)60 undertake to respect and to ensure that all individuals, within their territory and subject to their jurisdiction, enjoy the rights recognised in the Covenant. Bahrain acceded to the treaty on 20 September 2006 and is therefore bound by it. It is deemed reasonable and appropriate to extend the obligations within the ICCPR to the assisting States when they come to the aid of the requesting State.61 A State Party to the ICCPR may also derogate from its obligations within the Covenant, in a situation of public emergency which threatens the life of the nation subject to some limitations in relation to the right to life, the prohibition of torture, inhuman or degrading treatment or punishment.62 Those derogations would as well be extended to the intervening parties. In that respect, if the GCC intervention did not arouse important international reactions and was not discussed at the United Nations; however, it has to be noted that the human rights situation created some worry.63 From the first day of the intervention, the UN Secretary General64 expressed concerns, saying that “peaceful means should be adopted to ensure national unity and stability,” and appealed to all concerned to exercise “maximum restraint and to do everything possible to prevent the use of force and further violence.” The UN Secretary General also underscored “the responsibility of all parties to act in strict accordance with international human rights and humanitarian law.” Later on, calling for release of political prisoners and reasserted the need for ‘maximum restraint’ and urged ‘genuine, all-inclusive dialogue’.65

60

International Covenant on Civil and Political, 19 December 1966, UNTS 999, 171 (ICCPR).

It follows from the report of Schindler on the principle of non intervention in civil wars at the IDI (1973–1975) (note 4) that when third States may give assistance to the government only in compliance with the UN Charter and any other relevant rule of international law. 61

62

Art. 4 of the ICCPR (note 60).

The BICI found, for example, that the use of force had been “excessive, unnecessary, disproportionate and indiscriminate,” and made other findings in relation to human rights, see BICI Report (note 22), 268. 63

64

Ban Ki-Moon.

Ban Ki-Moon, Statements and Press Releases of 14 March 2011and 15 February 2012, available respectively at: http://www.un.org/sg/statements/?nid=5137, http://www.un.org/News/Press/ docs/2011/sgsm13445.doc.htm, http://www.un.org/News/Press/docs/2012/sgsm14109.doc.htm (all accessed on 28 February 2013). 65

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The Council of the EU also expressed its concerns and urged all security forces in Bahrain not to use violence against the demonstrators, but there was no formal disapproval as to the GCC’s forces intervention.66 The United States (US) authorities either did not focus on the intervention itself but were concerned by the crackdown and human rights.67 The Bahrain Independent Commission of Inquiry (BICI) appointed by the King did not find any evidence that the alleged misbehaviour was attributable to the intervening powers.68

3. The Purpose of the Intervention Intervention for limited purposes is generally accepted by doctrine and the international community.69 The consent tends to transform the ‘interference’ into ‘assistance’ for the requesting State facing domestic unrest, troubles, riots or even insurgency. In view of the discussions of the IDI in 1975 as well as in 2009–2011, the degree of intensity of the uprising is an important criterion to appreciate whether the requested intervention is legally acceptable. The IDI 1975 Resolution declared as illegal any assistance performed in the time of a civil war. For example, the 1975 IDI report and resolution focused on civil war and did not cover local disorders or riots and regarded as illegal any intervention in civil war, de lege ferenda.70 European Council, Conclusions on Bahrain, Press Release 7781/11, 21 March 2011, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/120084.pdf (accessed on 30 December 2012). See also the statement by Mrs Catherine Ashton, High representative of the European Union for Foreign Affairs and Security, 17 October 2011, available at: http://www.consilium. europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/125156.pdf (accessed on 30 December 2012). 66

Steve Inskeep, National Public Radio Interview with Hillary Rodham Clinton, US Secretary of State, 16 March 2011, available at: http://www.state.gov/secretary/rm/2011/03/158443.htm (accessed on 30 December 2012). 67

68

See BICI Report (note 22).

However, the question of military assistance is still disputed in doctrine and in practice. The IDI Rapporteur Gerhard Hafner notes that “as yet, the only matter that is undisputed is that present international law does not provide an unequivocal answer to the question of the rules governing such activities. Doctrine as well as practice is divided into a wide variety of opinions on this issue, reaching from the admissibility of such interventions, to their admissibility only under certain narrowly described circumstances and to their total exclusion,” see Hafner (note 16), 187. 69

Following the discussions of 1973–1975, the IDI replaced the term ‘intervention’ with the term ‘assistance’ in its 1975 Resolution. Again in 2009–2011 the same discussion resumed and the Rapporteur Gerhard Hafner favoured the term ‘assistance’ and would rather qualify it as ‘military assistance’. Hafner also proposed that the preliminary report use the expression ‘military assistance on request’ but 70

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However, it seems that since the adoption of the two 1977 Additional Protocols to the Geneva Conventions,71 the question of requested intervention relates to all situations of armed activities outside conflicts of international character, including riots, tensions or civil unrest. As defined by Schindler, “the hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces.”72 State practice73 tends to show that intervention with prior consent to assist and support the government in such a situation is admissible.74 Even in the case of civil this was not accepted for various reasons, see Hafner (note 16), 201 et seq. The IDI under Art. 1 of the IDI Resolution 1975 (note 4), states that “[…] the term ‘civil war’ shall apply to any armed conflict, not of an international character, which breaks out in the territory of a State and in which there is opposition between: a) the established government and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of that State, or b) two or more groups which in the absence of any established government contend with one another for the control of the State. 2. Within the meaning of this Resolution, the term ‘civil war’ shall not cover: a) local disorders or riots: b) armed conflicts between political entities which are separated by an international demarcation line or which have existed de facto as States over a prolonged period of time, or conflicts between any such entity and a State; c) conflicts arising from decolonization”. 71 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS 1125, 3 (Additional Protocol I), and Protocol Additional to the Geneva Conventions, Relating to the Protection of Victims of NonInternational Armed Conflicts, 8 June 1977, UNTS 1125, 609 (Additional Protocol II).

Dietrich Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, RdC 163 (1979-II), 147. 72

As for British forces in Muscat and Oman (1957), see Anthony Carty, Distance and Contemporaneity In Exploring the Practice of States: The British Archives In Relation to the Oman and Muscat 1957 Incident, Singapore Yearbook of International Law 9 (2005), 75. For Oman, also see Jean Charpentier, Pratique française du droit international, AFDI 3 (1957), 896 et seq. For British and American forces in the Lebanon and Jordan (1958), see René-Jean Dupuy, Agression indirecte et intervention sollicitée : à propos de l’affaire libanaise, AFDI 5 (1959), 431, 455 et seq.; Quincy Wright, United States Intervention in Lebanon, AJIL 53 (1959), 112, 121 et seq.; Roger Spiller, The U.S. intervention in Lebanon (2005). For French forces in Gabon (1964), see the France-Gabon agreement that had been signed on 17 August 1969 which was the basis of the request of President Leon M’ba to the French government; other agreements had been concluded with other African States in the 1960s, see Maurice Ligot (note 40). For Chad (1968, 1969, 1983) and Zaire (1978), a German counter-terrorism police unit in Somalia (1977), and French-Italian and US forces in the Lebanon (1982), see Charles Rousseau, Chroniques des faits internationaux, RGDIP 75 (1971), 134, 204; Christiane Alibert, Du droit de se faire justice dans la société internationale depuis 1945 (1983); Ralph Hallenbeck, Military Force as an Instrument of US Foreign Policy: Intervention in Lebanon, August 1982–1984 (1991). For Indian units in Sri Lanka (1987), see André Lewin, L’accord Indo-Sri Lankais du 29 juillet 1987 et la force indienne de maintien de la paix au Sri Lanka, AFDI 33 (1987), 95 et seq.; Gautam Das, Sri Lanka Misadventure: India’s Military PeaceKeeping Campaign, 1987–1990 (2008). 73

74

Schindler (note 4), 427; Jennings/Watts (note 7), 435.

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war, the assistance to the government is lawful so long as the government exercises effective control over the territory or most part of it. Assistance is also acceptable where the objective for foreign intervention is to fight against terrorism or armed groups coming from abroad, and when it amounts to ‘counter-intervention’.75 On the contrary, support given to forces fighting against the established government with the intention to overthrow it, amounts to an unlawful intervention, whether it consists in financial support, training, supply of weapons, intelligence and logistic support.76 Yet, there are questions which arise from such a situation. The involvement of a foreign State may transform the internal conflict into an international one. It might simply become an internationalised ‘non-international armed conflict’ or an internationalised civil war.77 It certainly does so if the foreign State gives support to armed bands fighting the effective government.78 The recognition of the insurgents also changes the situation and even more so the recognition of belligerency which implies the operation of the rules of war.79 75 Karine Bannelier/Théodore Christakis, Volenti non fit injuria? Les effets du consentement à l’intervention militaire, AFDI 50 (2004), 102. 76

ICJ, Nicaragua (note 10), paras. 241, 242.

See Schindler (note 72); Christine Gray, The Meaning of Armed Conflict: Non-International Armed Conflict, in: Mary Ellen O’Connell (ed.), What is War? An Investigation in the Wake of 9/11 (2010); Carina Bergal, The Mexican Drug War: The Case for a Non-International Armed Conflict Classification, Fordham International Law Journal 34 (2011), 1042; Konstantinos Mastorodimos, The Character of the Conflict in Gaza: Another Argument Towards Abolishing the Distinction between International and Non-International Armed Conflicts, International Community Law Review 12 (2010), 437; Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (2010). Algeria before its independence, Chechnya, Gaza, the drug war in Mexico and other Latin American States illustrate various situations of non-international armed conflicts. Civil war may be internationalised with various intensity (such as in Spain, Greece, Yugoslavia); then there are situations below a threshold of intensity which Dietrich Schindler defines as follows: “[t]he hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, [i.e.] they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organisation. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements,” see Schindler (note 72), 147. 77

78 As that has been the case, for example with the Spanish civil war, see Charles Rousseau, Droit international public, vol. IV (1980), 39. For the example of Angola (1975), see Charles Rousseau, Chronique des faits internationaux, RGDIP 80 (1976), 546, 561 et seq. With respect to Nicaragua, see Lawrence A. Pezzullo, Intervention in Internal Conflict: The Case of Nicaragua, Georgia Journal of International and Comparative Law 13 (1983), 201; Mauricio Solaun, U.S. Intervention and Regime Change in Nicaragua (2005). 79

Jennings/Watts (note 7), 165.

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Evidently, once the purpose of the intervention is achieved the foreign forces have to withdraw, otherwise the pursuit of its own intentions by the intervening State would be an illegal interference in domestic affairs of the inviting State. Thus, in many cases the intervention is not “the manifestation of a policy of force” but an expression of regional solidarity.80 The basis of military assistance is wider. Under Chapter VIII of the Charter of the United Nations (UN Charter), regional arrangements or agencies concerned are those “dealing with such matters relating to the maintenance of international peace and security” and they are “appropriate for regional action.”81 Those regional bodies are deemed autonomous, provided that their activities are consistent with the purposes and principles of the United Nations. When it comes to an ‘enforcement action’, they lose their autonomy to the Security Council.82 The factual context is decisive. The threat of war will certainly impose on the regional agency the obligation to refer the matter to the UN. A limited assistance, such as a support to security forces or police in internal matters, in order to maintain or restore constitutional order is certainly in the power of the regional body. As for the intervening power, it has to be convinced that in interfering in the situation, it is also acting for its own defence or security, which is only the case in a restricted geographical context.83 Maintenance of peace and security can be dealt with at the regional level, so long as the regional machinery is efficient and legally based in order to allow preventive deployment. Where it fails, the situation has to be referred to the Security Council (SC) as that was done in the case of Mali in 2013 for the restoration of the constitutional order.84 ICJ, Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4. 80

81

Art. 52 of the Charter of the United Nations (UN Charter), 26 June 1945, UNCIO 15, 335.

Ibid., Art. 53 of the UN Charter. See Laurence Boisson de Chazournes, Les relations entre organisations régionales et organisations universelles, RdC 347 (2010), 79, 238. 82

83

Maurice Bourquin, Le problème de la sécurité internationale, RdC 49 (1934), 473, 521.

The Security Council acknowledged the positive steps taken by Mali towards the restoration of constitutional rule, then recalling the letter of the Transitional authorities of Mali dated 18 September 2012 requesting the authorisation of deployment through a Security Council resolution, under Chapter VII, of an international military force to assist the armed forces of Mali to recover the occupied regions, and urged member States to provide support to the African-led international Support Mission in Mali (AFISMA). See SC Res. 2056 of 5 July 2012, SC Res. 2071 of 12 October 2012 and SC Res. 2085 of 20 December 2012. 84

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According to the deputy chairman of Bahrain’s parliament, in March 2011 the move to deploy foreign troops was not a provocation to protesters, stating that the deployment was not due to “a lack of security forces in Bahrain, it is a showing of solidarity among the GCC,” while Sheikh Hamad bin Jassim bin Jabr Al Thani, the Qatari Prime Minister and Foreign Affairs Minister said that “there are common responsibilities and obligations within the GCC countries. The arrival of Saudi and UAE troops in Bahrain is in line with the GCC defence agreement that calls for all members to oblige when needed and to fully co-operate.”85 For Qatari authorities, who are used to deploying peacekeeping troops, joining the Peninsula Shield force was “a duty to contribute in restoring order and security.”86 In addition, the Secretary General of the GCC officially said the decision to deploy force was a collective commitment for Bahrain security, and for the safety of its citizens and residents: the GCC countries strongly oppose to any external intervention in the Kingdom of Bahrain, and they emphasise that a violation of its security and stability is also a threat for those of the Member States of the GCC. The statement made clear that the decision to send the Peninsula Shield Forces was made on request and on the basis of defence cooperation agreements.87 Beyond the formal reasons, the GCC members also justify the intervention by stating that at the regional level, the Shi’a group hardly represents 15 % of the GCC, even where they constitute the majority in Bahrain; they also argue that electoral process does not always lead to democracy in Arab countries, as illustrated by minority parties or leaders supported by Iran in the Lebanon or Iraq after the 2010 elections in both countries.88 85 For both quotes, see Al Jazeera, 15 March 2011, Bahrain Imposes State of Emergency, available at: www.aljazeera.com/news/middleeast/2011/03/20113151296156152.html (accessed on 13 February 2013). 86 “As a Qatari force we are receiving our orders from the head of the Peninsula Shield force. There are no Qatari forces outside the Peninsula Shield,” said Colonel Abdullah al Hajeri, see Agence France Presse (AFP), 18 March 2011, Qatar has sent Troops to Bahrain: official, available at: http://www. google.com/hostednews/afp/article/ALeqM5iZVm1VnEyEAWlhpo_Z450F0HzUsw?docId=CNG. eceb5b6c72005e4ed771cdfdfe24298d.01 (accessed on 30 December 2012). 87 See BBC news, 14 March 2001, Gulf States Send Forces to Bahrain Following Protests, available at: http://www.bbc.co.uk/news/world-middle-east-12729786 (assessed on 7 March 2013) and Al Jazeera, 15 March 2001, Saudi Soldiers Sent into Bahrain, available at: www.aljazeera.com/news/ middleeast/2011/03/2011314124928850647.html (assessed on 7 March 2013). 88 Antoine Basbous, Le tsunami arabe (2011), 295. The Shi’a majority pays allegiance to Ayatollah Sistani, of Iranian origin, who is the guide of Iraqi Shi’as. In Lebanon, in the general elections of June 2009, the 14 March Alliance won 71 seats over 57 for the 8 March Alliance, however the govern-

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That intervention was neither fortuitous nor unexpected. It was aligned with the need to reinforce and extend the cooperation between the GCC members for strategic and geopolitical reasons, beyond the socio-economic and monetary cooperation. On the one hand, it is a crucial necessity for the region and the outside powers to protect the oil movement throughout the Gulf. Bahrain is located very close to Ras-al-Tanoura, the world’s largest oil-exporting seaport, with a capacity to produce thirteen million barrels per day,89 which makes Saudi Arabia and the Gulf countries highly cautious. Directly from Bahrain it is possible to access several major oil fields offshore and onshore and the world’s second largest liquefied gas-exporting harbour in Qatar.90 The issue was therefore not only one of popular protests but of highly sensitive interests for the States of the region. However it could not amount to counter-intervention as the allegations of foreign interference, specifically Iran, were not proved.91

III. A Forcible Intervention In a rather different political context (see infra, A), the intervention in Libya was also a collective one (see infra, B), decided on the basis of a UN resolution, and justified by the unprecedented reason of the R2P doctrine (see infra, C).

ment was formed five months later then fell in January 2011 after the 8 March Alliance ministers withdrew and that movement established a new government. Results are available at: www.elections. gov.lb (accessed on 27 February 2013) and in: Richard Chambers, International Foundation for Electoral Systems, Lebanon’s 7 June Elections: The Results, 9 June 2009, available at: http://www.ifes. org/files/IFES_LebanonReview060709Results.pdf (accessed on 27 February 2013). In Iraq, the elections of March 2010 gave 91 seats to Al Iraqiya (Ayad Allawi), 89 seats to the State of Law coalition (Nouri al Maliki) and 70 to the National Iraqi Alliance (Ibrahim al Jaafari) out of a total of 325 seats. The government was formed eight months later by Mr Al Maliki, see Reider Visser, The Uncertified Election Results: Allawi Comes Out on Top, 26 March 2010, available at: http://www.historiae.org/ uncertified.asp (accessed on 27 February 2013). 89

Al Husseini (note 30).

90

Ibid.

91

BICI Report (note 22), para. 1584.

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A. The Political Context

Libya was hit by a ‘Day of Anger’ on 17 February 2011, as protests unfolded against the rule of Muammar Gadhafi, the latest leader to be engulfed by the wave of unrest spreading across North Africa and the Middle East. Actually, rage had already burst open two days earlier in Benghazi, the capital city of Cyrenaica and Eastern region of the country, an area traditionally hostile to Tripoli and particularly to Gadhafi’s clan. Several cities followed and demonstrations took place in Ajdabiya, Bayda, Derna and Tobruk. Opposition to the regime had suffered from repression in the 1980s, but a new generation of opponents appeared through networks linked to ‘cyber-activists’ from outside, Europe and the US. The violent crackdown turned protests into riots and some commanders from Cyrenaica joined the insurgents. That did not happen in Tripolitania where the capital city of Libya is located. Gadhafi deployed air forces despite the reservations or opposition of the head of air forces, General al Rifi al Sharif. The threat of air strikes was a sufficient deterrent to paralyse the Western tribes, and to force their officers to move. Gadhafi was thus able to stifle the rebellion in Tripolitania and fight back the insurgents from Cyrenaica.92 The Libyan leader vowed to fight the rebellion until his “last drop of blood” as, he said, the protests will lead to a civil war in which the rebels “rats and microbes” will face death penalty for taking arms against the State.93 France reacted promptly. Several statements called for “an immediate halt to violence and for a political solution in order to respond to the Libyan people’s aspiration to democracy and freedom.”94 Tensions had been usual between the two coun92

Basbous (note 88), 220.

Arabian Business (Dubai), 23 February 2011, Gaddafi pledges bloodshed as army units defect, available at: http://www.arabianbusiness.com/gaddafi-pledges-bloodshed-as-army-units-defect-382583. html?parentID=382693 (accessed on 30 December 2012). 93

94 France in the United Kingdom, Communiqué issued by President of the French Republic, 21 February 2011, available at: http://www.ambafrance-uk.org/President-Sarkozy-on-Nuclear.html (accessed on 30 December 2012); France Diplomatie, Statement issued by President Nicolas Sarkozy, 23 February 2011, available at: http://www.diplomatie.gouv.fr/en/country-files/libya/events-7697/events6776/article/libya-statement-issued-by (accessed on 30 December 2012); President Barack Obama and President Nicolas Sarkozy on Libya, Communiqué from the President of the French Republic, 24 February 2011, following a phone call between the two presidents, available at: www.diplomatie.gouv.fr/fr/payszones-geo/libye/la-France-et-la-libye/evenements-4528/article/libye-entretien-telephonique-de (accessed on 13 February 2013); see also France-Amérique/AFP, Obama et Sarkozy exigent “un arrêt immédiat de l’usage de la force” en Libye, 24 February 2011, available at: http://www.france-amerique.com/

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tries and the attempt to resume better relations and develop trade partnership had not been successful.95 After having hailed, on 6 March 2011, the creation of the National Transitional Council of Libya (NTC), bringing together the forces opposed to Gadhafi, and having offered their support to a solution leading to the cessation of violence and the establishment of a democratic government that responds to the aspirations of the Libyan people, the French authorities decided to recognise the NTC as “the legitimate representative of the Libyan people” on 10 March.96 That decision created a surprise among European partners.97 From a legal view point, this could be regarded as recognition of insurgency or even belligerency which gave the rebels some kind of legal capacity.98 Politically, that recognition and the use of the word ‘legitimate’ was a way to indicate that the Libyan government was not regarded as legitimate. On the following day, the European Council expressed strong solidarity with the Libyan people and the victims; it firmly condemned the violent repression of the Libyan regime “against its citizens and the gross and systematic violation of human rights” with the Council declaring that “Colonel Gadhafi must relinquish power immediately. His regime has lost all legitimacy and is no longer an interlocutor for the EU.”99

articles/2011/02/24/obama_et_sarkozy_exigent_un_arret_immediat_de_l_usage_de_la_force_en_l ibye.html (accessed on 27 February 2013). 95 Tensions around the Aouzou strip, terrorism, the bombing of the UTA aircraft over Niger in 1989 were to be overcome by President Sarkozy through the Bulgarian nurses case and the 2007 visit of the Libyan leader to Paris. President Sarkozy had hoped to obtain signature towards contracts worth10 billion Euros but they never came. That fed some kind of misunderstanding and resentment. 96 See Press Statements by the French Government, 6 and 10 March 2011, available at: http://www. diplomatie.gouv.fr/fr/pays-zones-geo/libye/la-france-et-la-libye/evenements-4528/article/libye-10-03-11 (accessed on 28 February 2013) and at: http://www.diplomatie.gouv.fr/fr/pays-zones-geo/libye/la-franceet-la-libye/evenements-4528/article/creation-du-conseil-national (accessed on 28 February 2013). 97

Balmond (note 1), 555.

Jennings/Watts (note 7), 165; Charles Rousseau, Droit international public, vol. III (1977), 496, 604; Dinh/Daillier/Forteau/Pellet (note 7), 632. 98

99

European Council, Declaration of 11 March 2011, EUCO 7/1/11 REV 1, paras. 6 et seq.

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B. The NATO Intervention

One month after the uprising in Libya, foreign intervention was decided following the adoption of two Security Council resolutions.100 The purpose of the intervention is clearly stated: to “protect innocent civilians,” as claimed by the US representative.101 That summarises the inspiration and the spirit of the UN resolutions.

1. Security Council Resolution 1970 of 26 February 2011 The first one (SC Resolution 1970 of 26 February 2011), unanimously adopted, expressed “grave concern at the situation” in the preamble and condemned the violence and use of force against civilians. The legal reasons relied upon by the SC for its decision were “the gross and systematic violation of human rights, including the repression of peaceful demonstrators” (preamble, paragraph 2) and the incitement to hostility and violence from and by the highest level of the Libyan government against the civilian population. The Council relied also on the previous condemnation by the League of Arab States (LAS),102 the African Union (AU) and the Organization of the Islamic Conference (OIC),103 as well as the Human Rights Council’s (HRC) resolution which had urgently dispatched an independent international commission of 100

SC Res. 1970 of 26 February 2011; SC Res. 1973 of 17 March 2011.

SC, The Situation in Libya, Provisional Verbatim Record of the 6498th Meeting, 17 March 2011, UN Doc. S/PV.6498, Susan Rice (United States of America), 5. 101

The Security Council referred (see SC Res. 1970, of 26 February 2011, preamble, para. 3) to the LAS’ condemnation of violations of humanitarian law and the Arab Charter on Human Rights which was issued by the League’s Standing Committee in Charge of Human Rights on 9 March 2011, available at: http://www.saphirnews.com/Libye-la-Ligue-arabe-condamne-les-violences-et-Kadhafi-nie-levidence_a12316.html (accessed on 13 February 2013). 102

103 The Security Council referred to those statements in its resolution (see SC Res. 1970, of 26 February 2011, preamble, para. 3). The Peace and Security Council of the African Union had expressed its concerns and renewed its firm condemnation of indiscriminate use of force and lethal arms in its 265th meeting on 10 March 2011, see African Union (AU), Communiqué PSC/PR/COMM.2(CCLXV), available at: http://www.peaceau.org/uploads/communique-libya-eng.pdf (accessed on 27 February 2013). A final communiqué was issued by the emergency meeting of the committee of permanent representatives to the OIC on the alarming development in Libyan Jamahiriya on 8 March 2011 applauding the statement issued by the Secretary General on 22 February which condemned the excessive use of force against civilians in Libya “considering that the repression and intimidation used in Libya amount today to humanitarian tragedy which contravenes Islamic values, human rights and international humanitarian law,” available at: http://www.oic-oci.org/topic_detail.asp?t_id=5022 (accessed on 27 February 2013).

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inquiry to investigate all alleged violations of international human rights law in Libya, and proposed its suspension from the HRC.104 The Security Council considered that the widespread and systematic attacks taking place in Libya against the civilian population might amount to a crime against humanity. Reaffirming the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya, the SC also recalled the national authorities’ R2P their population. Acting under Chapter VII of the UN Charter and taking measures on the basis of Article 41, the SC called for an immediate end to violence and for steps to fulfil the legitimate demands of the population. The Libyan authorities were urged to act to respect human rights and humanitarian law, ensure the safety of all foreigners, ensure passage of humanitarian and medical supplies as well as humanitarian agencies and immediately lift restrictions on all forms of media. Four categories of measures were decided. Firstly, the SC referred the situation to the Prosecutor of the International Criminal Court, as determined under Article 13 (b) of the Rome Statute. Secondly, the Council established an arms embargo on all supply to Libya. Thirdly, it decided on travel bans for the sixteen individuals listed in the Annex which covered Muammar Gadhafi and several members of his family, and finally it decided that all assets and economic resources of the family be frozen.105 Following the adoption of that resolution, on 8 March 2011, the North Atlantic Treaty Organization (NATO) increased its surveillance operations in the Mediterranean to provide detailed information about movements in Libyan airspace, and sent ships to improve monitoring operation in view of enforcing the arms embargo on Libya.106

104 Human Rights Council, Situation of Human Rights in the Libyan Arab Jamahiriya, 25 February 2012, UN Doc. A/HRC/S-15-2 (2012). 105

A new Sanctions Committee was established to monitor the implementation of the measures.

The Ministers of NATO met on 7 March 2011 and action started on the following day, see statement by the NATO Secretary General issued on 27 March 2011, available at: http://www.nato.int/ cps/en/natolive/news_71808.htm (accessed on 27 February 2013). Coastal and space surveillance in Libya already began before 7 March 2011, according to the internet blog Bruxelles2, see Nicolas GrosVerheyde, Les Awacs français et de l’OTAN ont placé l’espace libyen sous surveillance, 7 March 2011, available at: http://www.bruxelles2.eu/zones/maghreb/les-awacs-francais-et-de-lotan-ont-place-lespacelibyen-sous-surveillance.html (accessed on 27 February 2013). 106

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2. Security Council Resolution 1973 of 17 March 2011 The Libyan authorities failed to comply with the measures decided in SC Resolution 1970, which led to the SC to repeatedly express its concerns and adopt a second resolution, SC Resolution 1973 of 17 March 2011, to reinforce and toughen the measures against Libya. For example, it replaced the provisions on arms embargo by wider measures extending inspection of vessels on the high seas, enlarged the list of people concerned by the travel ban, and more determined to ensure the freezing of assets. Moreover, condemning the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions,107 the resolution also focused on the protection of civilians. For that purpose, firstly the Council in paragraph 4 authorised “Member States that have notified the SecretaryGeneral, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, […] to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi,” however it excluded “a foreign occupation force of any form on any part of Libyan territory.” That is the usual phrasing for the authorisation to use force under the authority of the SC and that formed the basis for the armed intervention. Secondly, the SC established a no-fly zone in paragraph 6, which placed a ban on all flights in the Libyan airspace in order to help protect civilians. The French Minister for Foreign Affairs, Alain Juppé, who presented the draft resolution made clear the purposes of the text. From a political point of view, the minister said: “[w]e must not give free rein to warmongers; we must not abandon civilian populations, the victims of brutal repression, to their fate; we must not allow the rule of law and international morality to be trampled underfoot.”108 The statement was made in reference to support the EU and of the Group of Eight countries which had met a few days earlier. The minister also reiterated the call on the Arab 107 The Council condemns as well acts of violence and intimidation committed by the Libyan authorities against journalists, media professionals and associated personnel and urges the Libyan authorities to comply with their obligations under international humanitarian law as outlined in SC Res. 1738 of 23 December 2006. 108

UN Doc. S/PV.6498 (note 101), Alain Juppé, 2.

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League for a no-fly zone and to the African Union, calling for an end to the violence against civilians. Sir Mark Lyall Grant, for the United Kingdom, made it also very clear that: the central purpose of the resolution is […] to end the violence, to protect civilians and to allow the people of Libya to determine their own future, free from the tyranny of the Al-Qadhafi regime. The Libyan population wants the same rights and freedoms that people across the Middle East and North Africa are demanding and that are enshrined in the values of the United Nations Charter. […] We, along with partners in the Arab world and in NATO, are now ready to shoulder our responsibilities in implementing resolution 1973 (2011).109

The no-fly zone came from a proposal of the Arab League. However, there was certainly some ambiguity in the discussion, which appears from the Russian representative’s speech. Doubts were expressed as to the use of force provided for in paragraph 4 of the resolution; as for some delegates the text contemplates measures that go far beyond the call of the Arab League to stop violence through a no-fly zone.110 For the Russian envoy to the UN,111 the resolution did not keep with standard practice in the SC and a range of questions remained unanswered. Those questions “touched on how the no-fly zone would be enforced, what the rules of engagement would be and what limits the use of force there would be.”112 The Russian delegation considered that the initial proposal had been transformed through the debate, transcending the initial concept stated by the Arab League and that provisions had been introduced into the text that could potentially open the door to large-scale military intervention.113 The Russian position was joined by four other members of the SC who decided to abstain in the voting. Germany was in favour of strong economic and financial sanctions, backed by the whole international community; they would be an effective way to end the rule of Gadhafi and to initiate the necessary political transition. Germany did not support the military option because of its implications and limitations, and of the great risks, noting that “[t]he likelihood of large-scale loss of life should not be 109

Ibid., Sir Mark Lyall Grant, 4.

110

Ibid., Manjeev Singh Puri (India), 5; ibid., Maria Luise Viotto (Brazil), 6.

111

Ibid., Vitaly Churkin (Russia), 8.

112

Ibid., 8.

Ibid., 8. The same views were expressed by the Security Council President speaking in his capacity as representative of China, see ibid., Li Baodong (China), 10. 113

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underestimated […] we see the danger of being drawn into a protracted military conflict that would affect the wider region.”114 Certainly the majority of the Security Council could not ignore the call for help to the UN and the international community by the rebel leadership. Early March, resolutions had been adopted in the US Senate and by the GCC for a no-fly zone.115 Yet, it might be assumed that not many understood what would be needed to enforce the no-fly zone, including the bombing of Libyan targets. Despite the reservations of some Member States, the resolution was adopted and action was taken the following day. Lebanon had co-sponsored the resolution and several Arab countries volunteered to participate in the decision relating to the implementation of the measures. Qatar and the UAE were among the first States to notify the UN that they would contribute to the military operations, they made a critical contribution to the coalition and this was hailed by the London Conference contributors116 who created a contact group117 that met later in Qatar. The military intervention was launched by France on 19 March 2011, following a tripartite summit of the EU, AU and the Arab League. On 22 March 2011, NATO responded the to the UN’s call by agreeing to enforce the ‘arms and related materials’ embargo. NATO ships stopped and searched any vessel suspected of carrying arms, materials or mercenaries to or from Libya. Then NATO agreed to enforce the no-fly zone over the country on 24 March 2011, and finally the Alliance took sole command and control of the international military action on 31 March 2011 to protect civilians and civilian-populated areas from air attacks. All allies took part directly or indirectly in the Operation Unified Protector which was also supported by Sweden, Qatar, the 114

Ibid., Peter Wittig (Germany), 4.

Senate of the United States, Bill Text 112th Congress (2011–2012), 1 March 2011, S.RES.85.ATS; Kareem Shaheen, The National, 8 March 2011, GCC Wants No-Fly Zone Over Libya, available at: http://www.thenational.ae/news/uae-news/politics/gcc-wants-no-fly-zone-over-libya (accessed on 30 December 2012). 115

116 Statement by the French Minister of Foreign Affairs, London Conference, 30 March 2011, available at: http://www.diplomatie.gouv.fr/en/country-files/libya/events-7697/events-6776/article/ london-conference-on-libya-30-03 (accessed on 30 December 2012).

This contact group of fifteen members was created in London on 30 March 2011, see Alain Juppé, Response to the Assemblée Nationale, 30 March 2011, available at: http://www.diplomatie.gouv. fr/fr/pays-zones-geo/libye/la-france-et-la-libye/evenements-4528/article/reunion-du-groupe-decontact-sur-91224 (accessed on 27 February 2013). 117

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UAE, Jordan and Morocco.118 Close contact and consultation were kept with the UN, the Arab League and the other international partners. The intervening parties made clear that they did not envisage an occupation of the country, which would be contrary to the resolution. However, they also blandly asserted that the current regime had completely lost its legitimacy and that Gadhafi should therefore go immediately.119 Nevertheless, the Operation Unified Protector mission of the Alliance had precise goals, which were confirmed on 14 April 2011, at the Berlin meeting of foreign ministers from NATO and non-NATO partners, then again in Brussels in June 2011.120 During the ‘Friends of Libya’ conference in Paris on 1 September, the Heads of State and Government reiterated their commitment and the NATO Secretary General, Anders Fogh Rasmussen, emphasised NATO’s determination to continue the mission “for as long as attacks and threats continue, but not a day longer than necessary.”121 On 16 September 2011, the SC took note of the improved situation in Libya, emphasising its intention to keep the measures imposed by resolution 1973 and the authorisation given to Member States, which, however, the Council was ready to terminate when circumstances permit. The same resolution established the UN

118 Operation Odyssey Dawn was the US code name of the American part of the international intervention. 119 Joint statement by French President Nicolas Sarkozy and British Prime Minister David Cameron, 28 March 2011, available at: http://ambafrance-in.org/IMG/pdf/pdf_Joint_statement_SarkozyCameron_Libya.pdf (accessed on 30 December 2012). In an article published in their countries on 14 April 2011, although the UN mandate does not call for the ouster of Gadhafi by force, the three leaders noted “but it is impossible to imagine a future for Libya with Qadafi in power. It is unthinkable that someone who has tried to massacre his own people can play a part in their future government. The brave citizens of those towns that have held out against forces that have been mercilessly targeting them would face a fearful vengeance if the world accepted such an arrangement. It would be an unconscionable betrayal,” see Barack Obama/David Cameron/Nicolas Sarkozy, New York Times, 14 April 2011, Libya’s Pathway to Peace, available at: http://www.nytimes.com/2011/04/15/opinion/15iht-edlibya15. html?_r=0 (accessed on 30 December 2012). 120 The goals were: 1) enforcing an arms embargo in the Mediterranean Sea to prevent the transfer of arms, related materials and mercenaries to Libya; 2) enforcing a no-fly zone to prevent air crafts from bombing civilian targets; 3) conducting air and naval strikes against military forces involved in attacks or threatening to attack Libyan civilians and civilian populated areas. 121 The NATO Secretary General added that “from the very beginning, or mission has been to protect the Libyan people, we have managed to prevent a massacre and countless lives have been saved,” see NATO Press Release, We will complete our mission, NATO Secretary General says, 1 September 2011, available at: http://www.nato.int/cps/en/natolive/news_77576.htm (accessed on 30 December 2012).

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Support Mission in Libya (UNSMIL) to support the Libyan-led transition and start the ‘rebuilding process’ of a “democratic, independent and united Libya.”122 The NATO operation went on during October 2011, helping to reduce the ability of the Gadhafi regime to target civilians. After the opposition forces captured the Libyan leader and his death, the Council of NATO decided to end the Operation Unified Protector at the end of the month. Although the military operation ended on 31 October 2011, the Alliance was ready to assist the new Libyan authorities if requested to do so.123

C. The Basis of the Intervention

1. A New Doctrine From a legal point of view, this is the first time the SC acted on the basis of the R2P.124 It had reaffirmed the provisions of the 2005 World Summit Outcome Document regarding that matter,125 and recalled the doctrine in the resolution concerning the situation in the Sudan.126 The SC, however, had never acted previously on that basis, despite the many situations where a large number of people were victims of violence by the State, as in the Democratic Republic of the Congo, Zimbabwe, Kenya

122

SC Res. 2009 of 16 September 2011.

The decision to end operations was taken on 21 October and confirmed on the 28th. In total, NATO and partners had flown more than 26,000 sorties, the operations involved 8000 servicemen and women, 21 NATO ships and 250 aircrafts. See NATO and Libya, facts and figures available at: http://www.nato.int/cps/en/natolive/topics_71652.htm (accessed on 30 December 2012). 123

See Société française pour le droit international, La responsabilité de protéger – Colloque de Nanterre (2008); André Cabanis/Jean-Marie Crouzatier/Ruxandra Ivan/Ciprian Mihali/Ernest-Marie Mbonda, La responsabilité de protéger: une perspective francophone (2010); Laurence Boisson de Chazournes/Luigi Condorelli, De la responsabilité de protéger, ou d’une nouvelle parure pour une notions déjà bien établie, RGDIP 110 (2006), 1, 11; Emmanuel Decaux, Légalité et légitimité du recours à la force: de la guerre juste à la responsabilité de protéger, Droits fondamentaux, No. 5 (2005), available at: http://www.droits-fondamentaux.org/IMG/pdf/df5edllrf.pdf (accessed on 28 February 2013); Olivier Corten, Le retour des guerres préventives (2003). 124

125

SC Res. 1674 of 28 April 2006.

126

SC Res. 1706 of 31 August 2006.

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or Myanmar. And it was somehow regarded as the result of a false consensus, a failure in practice and an object of resistance for many States.127 At first sight, this doctrine contributes to the development of contemporary international law. Related to ‘human security’ it is although a distinct doctrine.128 It is aligned with the idea of international community and with an enlarged concept of international responsibility.129 According to the International Law Commission’s (ILC) Articles on State Responsibility (ILC Draft Articles), some violations of international law affect all States: any State other than an injured State is entitled to invoke the responsibility of another if the obligation breached is owed to the international community.130 That is linked to another new doctrine of international law, as such a responsibility is entailed by “a serious breach by a State of […] a peremptory norm of general international law,” and subject that “the breach involves a gross or systematic failure by the responsible State.”131 The ICJ had given guidance, underscoring, among others, the prohibition of aggression and genocide, and more generally “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”132 But it is clear that for the ILC it covers torture, persecutions and other forms of degrading treatment or punishment.133 As a consequence, there would be firstly a positive duty for States to “cooperate to bring to an end through lawful means any serious breach” of specific obligations erga omnes protecting the collective interests of “the international community as a whole.”134 There would be secondly a duty not to recognize “as lawful a situation created by a serious breach nor render aid or assistance in maintaining that situation.”135 127 Vincent A. Auger, The Responsibility to Protect: Six Years After, Air and Space Power Journal 25 (2011), 84. 128 World Summit Outcome, GA Res. 60/1 of 24 October 2005; Follow-up to para. 143 on human security of the 2005 World Summit Outcome, 6 September 2012, UN Doc. A/66/L.55/Rec.1 (2012). 129 ILC Draft Articles on Responsibility of States for International Wrongful Acts, with Commentaries, GAOR, 56th Sess., Suppl. 10, 59 et seq. (ILC Draft Articles). 130

Ibid., Art. 48 of the ILC Draft Articles (note 129).

131

Ibid., Art. 40 of the ILC Draft Articles (note 129).

132

ICJ, Barcelona Traction (note 59), para. 33.

ILC Draft Articles (note 129), Art. 40, Commentary, para. 5; see also ILC, Report of the International Law Commission on the Work of its Twenty-Eighth Session, UN Doc. A/31/10 (1976), 95 et seq. 133

134

Art. 41 (1) of the ILC Draft Articles (note 129).

135

Art. 41 (2) of the ILC Draft Articles (note 129).

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Thus, the ILC Draft Articles impose on States the obligation to cooperate to bring an end to serious breach, opening the way for a collective R2P, and therefore to act against such a breach. In the 2005 World Summit outcome, the GA acknowledged that “each individual State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity,”136 which flows down from sovereignty. However the GA declares in that context they are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.137

The International Commission on Intervention and State Sovereignty (ICISS) has identified six criteria138 for military intervention, and four of them are regarded as a “different element of prudence or precaution.”139 Conversely two principles are isolated as being critical because they concern the ‘just cause’ which designates the “kind of harm that triggers a military intervention overriding the non-intervention principle,” and the ‘right of authority’ characterising who may authorise a military intervention.140 In the ICISS’s view, “military intervention for human protection purposes must be regarded as an exceptional and extraordinary measure, and for it to be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur.”141 In practice, military intervention is justified in two sets of circumstances: i) large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate State action, or State neglect or inability to act, or a failed State situation; or

136

World Summit Outcome, GA Res 60/1 (note 128), para. 138.

137

Ibid., para. 139.

They are: 1) Right Authority, 2) Just Cause, 3) Right Intention, 4) Last Resort, 5) Proportional Means, and 6) Reasonable Prospects, see ICISS, Report: The Responsibility to Protect (December 2001), para. 4.16, available at: http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed on 30 December 2012). 138

139

Ibid., para. 4.17.

140

Ibid.

141

Ibid., para. 4.18.

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ii )

large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, force expulsion, acts of terror or rape.142

As a consequence, no serious doubt has been expressed as to the legality of the intervention in Libya on the basis of the UN resolution, as an implementation of the R2P doctrine. The situation is quite different from previous precedents of intervention, in Yugoslavia (1999), in Afghanistan (2001) or in Iraq (2003),143 which were decided and conducted outside the authority of the UN. There have also been in the past military actions taken to protect civilians and authorised by the SC,144 such as in Bosnia and Herzegovina,145 Somalia,146 Rwanda147 and Zaire,148 Timor Leste149 or the Ivory Coast.150 The language then used by the SC was dominated by humanitarian concerns and that was the basis for authorising Member States to conduct operations using all available means to achieve the humanitarian objectives.151 In that regard the intervention in Libya is not exceptional.

142

Ibid., para. 4.19.

Xavier Pacreau, De l’intervention au Kosovo en 1999 à l’intervention en Irak de 2003: analyse comparative des fondements politiques et juridiques (2006); Simon Chesterman, Humanitarian Intervention and Afghanistan, in: Jennifer M. Welsh (ed.), Humanitarian Intervention and International Relations (2006), 163; Christopher Greenwood, Humanitarian Intervention: The Case of Kosovo, in: id. (ed.), Essays on War in International Law, (2006), 593; also see the references infra, note 165. 143

144 Linos-Alexander Sicilianos, L’autorisation par le conseil de sécurité de recourir à la force: une tentative d’évaluation, RGDIP 106 (2002), 5; Niels Blokker, Is Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing,” European Journal of International Law (EJIL) 11 (2000), 541. 145

SC Res. 816 of 31 March 1993.

146

SC Res. 794 of 3 December 1992.

147

SC Res. 929 of 22 June 1994.

148

SC Res. 1080 of 15 November 1996.

149

SC Res. 1264 of 15 September 1999.

150

SC Res. 1464 of 4 February 2003.

D. R. L. Ludlow, Humanitarian Intervention and the Rwandan Genocide, Journal of Conflict Studies 19 (1999), 22; see also John R. Vincent, Human Rights and International Relations (1995). 151

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2. Concealing an Old Practice No matter how strong the resentment toward the Libyan regime or against Muammar Gadhafi was, from the intervening States, that reason would not be sufficient to interfere in the national situation and infringe the sovereignty of Libya. Thus, one State cannot intervene to change the domestic situation of another, regardless of whether they dislike the political system adopted by that State. Several States may have diverse national interests to overthrow a government; however that temporary solidarity does not constitute a legal basis to intervene. As per the famous dictum of the ICJ: if one State, with a view to coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far-reaching.152

Notwithstanding that general exclusion of intervention and the discretion of the State in the treatment of its own nationals, particularly in case of civil war or simply unrest, for a long time a substantial part of legal writings and of practice has supported the view that there are limits; where there are State persecutions, cruel behaviour, violence or denial of fundamental human rights against the nationals, foreign intervention in the interest of humanity153 is permissible. A minor part of French doctrine has even developed in the 1980s, the notion of a ‘right to intervene’ or a ‘duty to intervene’,154 which would be now unfolded into the R2P.155 One can only regard that alleged right of intervention as of a rhetorical effect or as a diplomatic pose.156 152

ICJ, Nicaragua (note 10), para. 241.

Jennings/Watts (note 7), 442. Or in the interest of the ‘international community’, see Rousseau (note 78), 49. The idea was already accepted by theologists such as St Thomas Aquinas, De regimine principum, in: Robert W. Dyson (ed.), Aquinas: Political Writings (2002), 5, and by authors like Hugo Grotius, Emer de Vattel as well as contemporary writers like Richard Lillich, Humanitarian Intervention and the United Nations (1973); Antonio Cassese, The Current Legal Regulation of the Use of Force (1986), 57. 153

See Mario Bettati, Le droit d’ingérence. Mutation de l’ordre international (1996); Bernard Kouchner/Mario Bettati, Le devoir d’ingérence. Peut-on les laisser mourir? (1987). 154

155 See Mario Bettati, Du droit d’ingérence à la responsabilité de protéger, Outre-Terre 20 (3) (2007), 381–389. 156 GA, Provisional Verbatim Record of the 10th Meeting of the 43rd Session, 30 September 1988, UN Doc. A/43/PV.10 (1988), François Mitterrand, 23, available at: http://daccess-dds-ny.un.org/doc/ UNDOC/PRO/N88/641/82/PDF/N8864182.pdf? (accessed on 30 December 2012).

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The right to intervene does not exist in international law, but it has been long established that intervention in the interest of humanity could be legally permissible. Rougier designed the theory of intervention d`humanité on the basis of a number of precedents: Great Britain, France and Russia’s intervention to stop the cruel struggle between Greece and Turkey (1827), or to protect persecutions against Christian communities in the Turkish Empire (Syria 1860), was accepted in the Paris Congress in 1856.157 It concerned also Jewish persecutions in Romania (1866, 1878), torture of Roguiste opponents in Morocco, discrimination against Christian Japanese (1869) and the protection of Africans against Arab slavery in Congo. Just as well Germany justified intervention in Czechoslovakia and Poland to protect German minorities before World War II.158 This however does not mean it is a binding obligation on States and there have been many cases where States have not intervened in similar situations.159 The IDI in 1989 considered the possibility of a lawful intervention for the protection of human rights, as a duty of solidarity, provided such measures are permitted under international law and do not involve the use of armed force in violation of the UN Charter.160 However the IDI did not go as far as the prohibition of forcible humanitarian intervention and founded its resolution on the non-use of force principle. The ICJ had already done so.161 However, there may be exceptions to the principle based on self-defence (Article 51 of the UN Charter) or armed sanctions (Article 42 of the UN Charter) and some measures may be admitted by general international law. As Dame Higgins noted “the resolution might also deal with whether States, acting 157 See Percy Henry Winfield, The History of Intervention in International Law, BYIL 3 (1922–1923), 130; Antoine Rougier, La théorie de l’intervention d’humanité, RGDIP 17 (1910), 468; Ellery C. Stowell, Intercession Against the Persecution of Jews, AJIL 30 (1936), 102; Davide Rodogno, The ‘Principles of Humanity’ and the European Powers’ Intervention in Ottoman Lebanon and Syria in 1860–1861, in: Brendan Simms/D. J. B. Trim (eds.), Humanitarian Intervention: A History (2011), 159. For the French and Russian intervention in Greece, see Evgenii Vasilevitch Bogdanovitch, L’intervention européenne en Grèce en 1827 (1897); Adolph von Flöckher, De l’intervention en droit international (1896). 158 Rougier (note 157), 468; Stowell (note 157), 102; id., Humanitarian Intervention, AJIL 33 (1939), 733; Jennings/Watts (note 7), 442; Rousseau (note 78), 40, 49.

Ian Brownlie, International Law and the Use of Force (1963), 339; see also Jeff L. Holzgrefe/ Robert O. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas (2002), 44. 159

160 IDI, Resolutions adopted at its Santiago de Compostela session, 5–13 September 1989, Annuaire IDI 63 (1990), 324, 338; Sperduti (note 4), 376. 161

ICJ, Nicaragua (note 10), para. 268.

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without the authority of an international organization, could engage in military intervention.”162 Indeed, there is a place for intervention for the protection of the human rights of the target State’s nationals; the discussion is related to its limitations. In 1986 the ICJ rejected the idea that the violation of human rights entitles a foreign State to change by force the government as in Grenada or Panama, stating that “[t]he Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.”163 The Court did not accept the principle of an ‘ideological intervention’ the definition of which would be discretionary, so as to change the political, social or economic regime of a foreign State. But that ruling does not reject armed force measures whose purposes would be purely to safeguard internationally protected rights. There have been many cases, mentioned above, where the humanitarian purposes justified the intervention such as India in Bangladesh (1971), Vietnam in Cambodia (1979) or France in the Central African Republic (1979).164 However, in the past few years, it seems possible to confirm the consolidation of the SC’s previous tendencies in deciding, implementing and controlling authorisations of the use of force,165 as illustrated in Bosnia and Herzegovina, Somalia and Rwanda. Sometimes, though, the intervening powers have invoked an implied authorisation of the SC as in the operations for the protection of Kurds in Iraq, and most strikingly in the case of Kosovo.166 NATO and the EU justified the military operations by the 162

Sperduti (note 4), 232.

163

ICJ, Nicaragua (note 10), para. 263.

On the Indian intervention in Bangladesh, see Charles Rousseau, Chronique des faits internationaux, RGDIP 76 (1972), 538, 545; Paul Dreyfus, Du Pakistan au Bangladesh (1972); Lillich (note 153); Francis K. Abiew, The East Pakistan (Bangladesh) Intervention of 1971, in: Samuel Totten/Paul R. Bartrop (eds.), The Genocide Studies Reader (2009), 390; Avtar Singh Bhasin, India-Bangladesh Relations: Documents 1971–2002 (2003). On the French intervention in the Central African Republic, see Jean Charpentier, Pratique française du droit international, AFDI 25 (1979), 908; see Chapal (note 57), 401. On the Vietnam intervention in Cambodia, see Charles Rousseau, Situation au Cambodge, RGDIP 83 (1979), 757, 1009; Peter Schier, Cambodge 1979–1989: rechercher la vérité et la paix, Politique Etrangère 54 (1989), 669; Michel Blanchard, Viet Nam-Cambodge, une frontière contestée (2000). 164

Raul Emilio Vinuesa, Problems of the Use of Force in International Law: Authorization of the Use of Force by the United Nations, Annuaire IDI 74 (2011), 365. 165

For the debates in the Security Council, see SC, Provisional Verbatim Record of the 3988th Meeting, 24 March 1999, UN Doc. S/PV.3988 (1999), and SC, Provisional Verbatim Record of the 3989th Meeting, 26 March 1999, UN Doc. S/PV.3989 (1999). See also Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, EJIL 10 (1999), 1; Nicolas Valticos, Les droits de l’homme, le droit 166

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necessity to enforce the SC resolutions. But although those resolutions had been adopted on the basis of Chapter VII, they did not authorise explicitly the use of force and the SC decided that, “should the concrete measures demanded” in those resolutions “not be taken, to consider further action and measures to maintain or restore peace and stability in the region.”167 To respond to the Russian objection, the NATO powers pleaded that in these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. The force now proposed is directed exclusively to averting a humanitarian catastrophe, and is the minimum judged necessary for that purpose.168

Such a reason is not a legal argument, it is the way to legitimatise the intervention by an ethical justification in the absence of formally legal authorisation. Thus, it was criticized and condemned by several States and in a series of orders the ICJ “profoundly concerned with the use of force in Yugoslavia”169 pointed out that “under the present circumstances such use raises very serious issues of international law,”170 and recalled that “when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the Charter.”171 In that sense, the R2P stems from a classical analysis. The first goal is to ensure and enforce the respect of the UN Charter and human rights and the second one is to channel international intervention through the SC. It is not a deep transformation of the global collective security system, it has always been accepted that the SC might authorise military action to redress a catastrophic internal situation, when it is pre-

international et l’intervention militaire en Yougoslavie, RGDIP 104 (2000), 5; Djamchid Momtaz, ‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle du non-recours à la force, Revue Internationale de la Croix Rouge 837 (2000), 189; Olivier Corten, Un renouveau du droit d’intervention humanitaire? Vrais problèmes, fausse solution, Revue trimestrielle des droits de l’homme 11 (2000), 695. SC Res. 1199 of 23 September 1998, para. 16; SC Res. 1160 of 31 March 1998 and SC Res. 1203 of 24 October 1998 were also invoked by the intervening powers. 167

168

UN Doc. S/PV.3988 (note 166), Sir Jeremy Greenstock, 12.

ICJ, Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, 363, para. 16. 169

170

Ibid.

171

Ibid., para. 38; also see the same orders between Yugoslavia and the other intervening countries.

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pared to consider it as a “threat to international peace and security” and so long as the permanent members refrain from the use of the veto. However two observations have to be added. Firstly, the R2P does not mean only the responsibility to react, i.e., intervention, but the responsibility to prevent and the responsibility to rebuild as well. Secondly, outside the right authority to decide, already discussed, the five criteria of legitimacy for the use of force in such a situation have been identified: seriousness of the threat, proper purpose, last resort, proportional means and balance of consequences.172 They describe the usual conditions such as proportionality, and exhaustion of all peaceful means to settle the situation as already required in the past and present;173 they also refer to the usual practice of the SC where the definition of purposes, the limitation of the duration of a military operation, the reporting as to the action taken, are all within the jurisdiction of the authorising body. The other conditions concern a concrete and political evaluation of the case and they depend on expediency and appropriateness. On the other hand, the ICISS or high level panel did not state the criteria for an unauthorised intervention, which shows that on an essential aspect of humanitarian intervention the R2P doctrine does not bring an efficient tool of legal review. The R2P is not legally binding on States or the Security Council. There is certainly under international law a duty for the State to protect its citizens. States as Members of the UN have accepted the rights and duties set in the Charter, and the powers of the SC in case of threat to international peace and security and they are bound by erga omnes obligations under general international law. Sovereignty does not mean that States can do whatever they want. Conversely, there is presently no legal basis for an obligation binding on States to intervene on behalf of foreign citizens persecuted by their own government on its territory. Inevitably the evaluation of an intervention comprises a crucial political aspect; it constitutes for the intervening State the decisive factor.

172 ICISS, The Responsibility to Protect (note 138), para. 4.16; GA Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/ 565, para. 207, available at: http://www.un.org/secureworld/report.pdf (accessed on 30 December 2012). 173

See Rougier (note 157); Lillich (note 153).

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3. An Expedient Excuse The motives of NATO in Libya were not disguised. Firstly, the coalition insisted on the need to impede a ‘humanitarian catastrophe’ and pleaded that the threat expressed by Gadhafi was the most urgent factor; the members of the coalition would not accept another Rwanda or Srebrenica. The Independent International Commission on Kosovo deemed NATO’s action in 1999 ‘illegal but legitimate’ and suggested the need to close the gap and the R2P in Libya was the way to narrow the divide between legitimacy and legality.174 The intervention was therefore deemed to contribute to reinforce the international norms on crimes against humanitarian law. Just as well the Obama Administration did not want war but it regarded the risk of a massacre as real and considered inaction would have carried deep costs. Yet, nothing in the UN Charter authorises the United Nations to intervene “in matters which are essentially within the domestic jurisdiction of any State.”175 Through the R2P, the intervening parties gave legitimacy and legal basis to the undisclosed goal to overthrow Gadhafi and thus indulged in intervening in the domestic affairs of the country.176 The moral obligation allowed the legal intervention.177 Secondly, there were obviously reasons relating to the international balance and the calculations of international and regional players in the context of Arab uprising: a victory of Gadhafi over the Arab world would be a disaster, and there have been for years some resentment against the Libyan leader among the Arab States themselves. On the other hand, Libya is not a particularly influential country and Gadhafi’s isolation explains the support of the Arab League to the UN resolution.

174 Council on Foreign Relations, Independent International Commission on Kosovo, The Kosovo Report, Executive Summary (2000), available via: http://www.cfr.org/kosovo/independent-internationalcommission-kosovo-kosovo-report-executive-summary/p25962 (accessed on 30 December 2012). 175

Art. 2 (7) of the UN Charter (note 81).

See Max Boot, Weekly Standard, 28 March 2011, Qaddafi Must Go, available at: http://www. weeklystandard.com/articles/qaddafi-must-go_554818.html (accessed on 30 December 2012); Council of Foreign Relations, Hearing on Perspectives on the Crisis in Libya, 6 April 2011, available via: http:// www.cfr.org/africa/perspectives-crisis-libya/p24602 (accessed on 30 December 2012); Council of Foreign Relations, The New Arab Revolt: What Happened, What It Means, and What Comes Next (2011). 176

Daniel Jouanneau, Libya: Moral Obligation, Legal Intervention, 5 April 2011, available at: www.diplomatie.gouv.fr/en/country-files/libya/events-7697/events-6776/article/column-by-danieljouanneau (assessed on 7 March 2013). 177

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Thirdly, there were obvious economic considerations as to oil access and political aspects associated to the relations of the intervening parties in Libya. France took a hard position on Libya, contrary to its position in the Tunisian crisis where the French government had stayed in the background and eventually offered its support to the regime. Misunderstanding between the French government and the Libyan leader since his visit to Paris and the renegotiation of oil contracts178 in no small part explained the forward diplomacy of France in that multilateral action. There is also a messianic dimension of diplomacy for countries like the US (democracy) and France (human rights) which plays its part and helps as well to dress up the vital or simply temporary interests of the intervening powers. This political dimension of humanitarian intervention is not unusual. States do appreciate the appropriateness of their action and do not restrict their approach to a balance between legality and legitimacy. That might explain the hostility of some writers to humanitarian intervention.179

IV. Denied Intervention In Syria, the crisis has turned into civil war and questions were raised about a ‘double standard’ interpretation of the R2P.180 The country has been wracked by violence, with at least 20,000 people, mostly civilians, killed since the uprising against President Bashar al-Assad begun. The crisis has spawned more than 380,000 refugees, while millions of people need humanitarian assistance according to UN estimates. Visit of Ghadafi in Paris 10–15 December 2007 was quite controversial as the Libyan leader set up a beduin tent in the official residence of Marigny. See among many articles from the press, Le Figaro, 7/8 December 2007, Kadhafi plante sa tente à Paris, available at: http://www.lefigaro.fr/international/ 2007/12/07/01003-20071207ARTFIG00430-visite-controversee-de-kadhafi-a-paris.php (assessed on 7 March 2013) and Agence Ecofin regularly published news about investments and oil contracts, in particular as to the renegotiation of oil contracts and Libyan investments, see Agence Ecofin, 26 August 2011, ‘L’argent de Kadhafi’ a tant irrigué le système financier international, available at: http:// www.agenceecofin.com/investissement/2608-1017-l-argent-de-kadhafi-a-tant-irrigue-le-systemefinancier-international (assessed on 13 February 2013). 178

Ian Brownlie, Humanitarian Intervention, in: John Norton Moore (ed.), Law and Civil War in the Modern World (1974), 217; Tom J. Farer, The Regulation of Foreign Intervention in Civil Armed Conflict, RdC 142 (1974-II), 387. 179

See for example, the philosophers’ controversy in the French press, Bernard Henri Levy, Le Monde, 29 May 2012; Jean-Baptiste Jeangène Vilmer, Le Monde, 6 June 2012. 180

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Signs of violence are spilling over the borders and the war could spread into a region which is politically volatile. Major powers have been pleading for action and the threat of a multilateral intervention outside UN authorisation has leaked out.181 The exceptional dimension of the Syrian revolution is due to three main factors. The country is situated in the heart of the Arab world, as its axis and a strategic lock for Mesopotamia and the Arabian Peninsula to the Mediterranean Sea. Any intervention could have a blazing effect on the whole region. The regime is led by a minority, within a divided society. There is a real uncertainty as to the political outcome of the collapse of the Assad regime. The crisis itself unfolded in Syria in specific ways. From the beginning, on 15 March 2011, the uprising is more dispersed geographically and many groups from outside have been involved in the fighting with political or criminal objectives.182 From a purely military point of view183 an external intervention might involve far more efforts and difficulties than in Libya, and the precedents of Iraq and Afghanistan are memorable. On the international scene, the SC’s presidential statements in August 2011, condemned the “widespread violations of human rights against civilians by Syrian authorities,” and called for an immediate end to violence and urged all sides to act with utmost restraint. Reaffirming its strong commitment to the sovereignty and territorial integrity of Syria, the SC stressed that the only solution of the crisis was through a political process addressing the legitimate aspirations and concerns of the population with the full exercise of freedoms of expression and assembly but it regretted the lack of progress of the authorities in implementing their commitments to reform. Finally, it called on the authorities to alleviate the humanitarian situation by

Suspicion has been expressed by China and Russia in the Security Council, as Mr. Lavrov concluded, “[t]here can be no doubt that military methods, and especially outside military interference, pose serious threats to regional security, with unpredictable consequences. A sustainable settlement can be achieved only through negotiations and a quest for compromises that take into account the interests of all religious and ethnic groups of Syrian society,” see SC, Provisional Verbatim Record of the 6841th Meeting, 26 September 2012, UN Doc. S/PV 6841 (2012), 14. 181

182 Charles Saint-Prot, Syrie: un enjeu géopolitique régional, Observatoire d’Études Géopolitiques (July 2012), available at: http://www.etudes-geopolitiques.com/syrie-un-enjeu-geopolitique-regional (accessed on 27 February 2013). 183 François Daguzan, La Syrie ou les déclinaisons du chaos, 2 October 2012, available at: http:// www.frstrategie.org/barreFRS/publications/dossiers/syrie/ (accessed on 27 February 2013).

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ceasing the use of force against affected towns and allow expeditious and unhindered access for humanitarian bodies.184 The HRC had already expressed its concerns,185 and the GA ‘strongly condemned’ the ongoing human rights violations and use of violence by the Syrian authorities against their population.186 The SC, however, took no action until resolutions 2042 and 2043 were adopted in April 2012. The previous one had been defeated by Russia and China’s veto because the SC had expressed its intention to consider options, “including measures under Article 41 of the Charter of the United Nations.”187 Solicitude has been expressed by all members of the SC, but the obvious legal limitation to action which dominates the debates is the ‘non intervention’ principle. Russia’s representative made clear that it would not accept a military intervention and warned that the collapse of President Assad would destabilise the entire region. Interestingly, Russia contended that “the situation in Syria cannot be considered in the Council separately from the Libyan experience.”188 Russia also expressed alarm that compliance with SC resolutions on Libya had been considered a model for future actions of NATO in implementing the responsibility to protect […]. It is important to see how that model had been implemented. The demand for a ceasefire had turned into a civil war, the humanitarian, social and military consequences of which had spilled beyond Libya. The arms embargo had turned into a naval blockade on West Libya. Such models should be excluded from global practice once and for all.189

SC, Presidential Statement of 3 August 2011, UN Doc. S/PRST/2011/16 (2011). Interestingly, Lebanon dissociated from the statement which, in its views, “did not help to address the situation” and stressed “the interconnectedness of the two countries,” see SC, Press Statement of 3 August 2011, SC/10352. 184

185 UN HRC Res. S-16/1 of 29 April 2011; UN HRC Res. S-17/1 of 23 August 2011; UN HRC Res. S-18/1 of 2 December 2011. 186 The GA pointed out arbitrary executions, excessive use of force and the persecution and killing of protesters and human rights defenders, arbitrary detention, enforced disappearance, torture and ill treatment of detainees, including children. See Situation of Human Rights in the Syrian Arab Republic, GA Res. 66/176 of 23 February 2012, para. 1. 187 SC, France, Germany, Portugal and United Kingdom of Great Britain and Northern Ireland: Draft Resolution, 4 October 2011, UN Doc. S/2011/612 (2011). 188 SC, Provisional Verbatim Record of the 6627th meeting, 4 October 2011, UN Doc. S/PV. 6627 (2011), Vitaly Churkin (Russia), 4. 189

Ibid.

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Up to November 2012, the international community followed the path of diplomacy and it is suspected that arms, even heavy weapons, have been provided to the opponents. It is discussed whether an intervention would be possible, either on humanitarian grounds or as an interference in the civil war.190 In the first case, the R2P track seems jeopardised so long as it supposes a positive vote of the majority of the SC including the permanent members. Alternatively, the GA might be a substitute on the basis of Resolution 377 (V)191 the procedure and conditions of which have been confirmed by the ICJ.192 From the political angle, it is debatable that a majority would be available: a group of States being inclined to link the Syrian situation to the whole Middle East issue and precisely to Palestine, as the Arab States, would need to ‘avoid double standards’. In the second case, intervention in the Syrian civil war would set precedents. An established and internationally recognised government is entitled to seek assistance in order to preserve internal law and peace, so long as the government is in overall control of the situation. However, according to Sir Robert Jennings and Sir Arthur Watts, “when there exists a civil war and control of the State is divided between warring factions, any form of assistance amounts to intervention contrary to international law.”193 In spite of severe divergences, the IDI considered that very stringent obligations of non-intervention should avoid civil war turning into an international conflict. It decided that third States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.194 As an exception,

190 For the controversy in the French press, see Bernard-Henry Levy, Le Monde, 14 August 2012, Des avions pour Alep!, available at: http://www.lemonde.fr/idees/article/2012/08/14/des-avions-pouralep_1745994_3232.html (assessed on 7 March 2013); Jean-Baptiste Jeangène Vilmer/Olivier Schmitt, Le Monde, 15 August 2012, Quels avions pour Alep?, available at: http://www.lemonde.fr/idees/ article/2012/08/15/quels-avions-pour-alep_1746266_3232.html (assessed on 7 March 2013). 191

GA Res. 377 (V) of 3 November 1950 (Uniting for Peace).

ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 30. 192

193

Jennings/Watts (note 7), 438.

194

IDI, The principle of non-intervention in civil wars (note 4).

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humanitarian assistance is admissible195 and measures could be taken in case of serious, large-scale, systematic violation of human rights.196 On the other hand, there is an obligation not to assist the rebels. According to the ICJ ruling, the principle of non-intervention would loose its effectiveness if intervention were to be justified by a mere request for assistance made by an opposition group in another State […]. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court's view correspond to the present state of international law.197

In most situations, the outside powers will maintain a policy of non-interference in the domestic affairs of another State, except where they regard their vital interests at stake.198 However, the time may come when it is impossible, as a matter of politics, to keep such an attitude. Either the operations of the insurgents have allowed them to occupy effectively the main part of the territory over which the government has lost control, and they benefit a large support from the population: they constitute a de facto authority; or the civil war has reached such dimensions that foreign States may treat the internecine struggle as a war and recognise belligerency. Effectivity and objective criteria will prevail over subjective ones. Commercial, maritime, strategic and political interests of the powers will have a decisive weight. The practice observed in the Spanish Civil War offers a striking precedent of what can be a non-intervention policy.199 195 Id., Humanitarian Assistance, Resolution of the 16th Commission, 2 September 2003, available at: http://www.idi-iil.org/idiE/resolutionsE/2003_bru_03_en.PDF (accessed on 30 December 2012). 196 Id., The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States, Resolution of the 8th Commission, 13 September 1989, available at: http://www.idi-iil.org/ idiE/resolutionsE/1989_comp_03_en.PDF (accessed on 30 December 2012). 197

ICJ, Nicaragua (note 10), para. 246.

Nila Kuzmanic-Svete, La doctrine des intérêrs vitaux, Revue de politique international, 708 (1979), 16. 198

199 See Charles Rousseau, La non-intervention en Espagne, Revue de droit international et de législation comparée (RDILC) 65 (Ser. 4, vol. 19) (1938), 217 et seq., 473 et seq., 700 et seq. and RDILC 66 (Ser. 4, vol. 20) (1939), 114 et seq.; Ellery C. Stowell, Spain and the Nations, AJIL 30 (1936), 676; Hugh Thomas, The Spanish Civil War (2001).

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The recognition granted to the coalition of the Syrian opposition200 as the legitimate representative of the people of Syria, may be a first step toward action of the outside powers in a situation which certainly reveals the permanent features of the international society. There is no coherence duty in the conduct of States and they may decide not to intervene in view of the balance of interest at stake.

It has been recognised by France, the United Kingdom, and the GCC. See BBC, 20 November 2012, Syria Conflict: UK Recognises Opposition, says William Hague, available at: http://www.bbc. co.uk/news/uk-politics-20406562 (assessed on 7 March 2013); France 24, 14 November 2012, France Recognises New Syrian Opposition Coalition, available at: http://www.france24.com/en/20121113france-hollande-recognises-new-syrian-opposition-coalition-press-conference (assessed on 7 March 2013). 200

Justice After Democracy in the Arab World: Islamic Law Perspectives on Accountability JAVAID REHMAN( AND ELENI POLYMENOPOULOU((

ABSTRACT: The present paper examines the issue of accountability for Muslim Heads of State in the context of the Arab Uprising. It reviews the efforts that have already been undertaken to hold leaders responsible and suggests that the Arab Spring has represented a unique opportunity to establish democracy and end the culture of impunity. Despite the vast debate on democracy, there has been little interest in bringing the Muslim States’ leaders to justice. Consequently, the Arab world’s transitions, to a varying extent in each State involved, have only been partially successful. The paper highlights an additional missing element in the debate on accountability and responsibility of Heads of State. Muslim rulers have frequently ruled their people in disregard of the fundamental principles of the Sharia. This paper highlights those aspects of the Sharia which place particular emphasis upon a consultative process of governance and demands accountability from the rulers. Contrary to many current practices prevalent in the Arab States, the Sharia does not sanction dynastic succession or dictatorial or arbitrary rule. Nor is the Sharia antithetical to the promotion of democratic institutions based upon transparency and rule of law. The neglect of Islamic perspectives has led to a lack of consolidated, rational international legal discourse on accountability, democratic governance and the right to resist oppression. The authors argue that a pattern of democratic transition based solely on international law and on western, or secular, models of democracy excludes a realistic perspective of understanding the core values of the Sharia. In the context of Muslim societies, such pattern is likely to prove unworkable, and substantially risks a further Islamisation of politics in the region. The new political forces emerging in the aftermath of the Arab Spring would do well to revert to some of the fundamental constitutional principles enshrined within the Sharia. KEYWORDS: Justice, Democracy, Islamic Law, Sharia, Rule of Law, Heads of State Immunities, Accountability, Arab Spring, Right to Resist Oppression, Arab Uprising, Arab Revolutions

Professor of Islamic Law and Muslim Constitutionalism, and Head of Law School, Brunel University, London; Co-Rapporteur International Law Association (ILA) Committee on Islamic Law and International Law; Director, Brunel University Research Centre: Security, Human Rights and the Media; Member, Human Rights Commission of Pakistan (HRCP). (

Lecturer in Law, Brunel Law School, London. PhD Human Rights – International Law, University Grenoble 2, France. The views and opinions presented in this paper are the authors’ own, and they take responsibility for any errors and omissions in the paper. ((

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I. Introduction The Arab uprisings marked the beginning of a democratic era, serving as proof that there is no ‘Arab exceptionalism’ to democracy. Subsequent to the massive insurgencies and unprecedented violence – in Tunisia, Egypt, Bahrain, Kuwait, Libya, Yemen and Syria – the Arab people have been gradually demanding their right to democratic and constitutional governance. Democracy has been the essential feature of the Arab world’s revolutions during the last two years: it has been the main claim of the revolutionaries, the central argument consolidating their right to resist oppression, and the grounds of the legitimacy of their campaign to oust their autarchic leaders. It has also been the motif upon which the solidarity among Muslim peoples was built,1 and the key to understanding the compatibility between the Islamic Sharia and the concept of democracy. In practice, the intended objectives of these mass movements were the establishment of democratic structures, political stability and transparent governance. And yet, as paradoxical as it may appear, this ‘pan-Arab’ awakening has not managed to provide a solid frame of establishment of a genuine, enduring and long-lasting pattern of democratic governance. A first reading of the Arab Uprising may reveal that the appropriation of the revolutions by Islamist governments has even been an inhibiting factor for the creation of such patterns. John Bradley accurately highlights in this respect that “it often happens that the revolutionaries who sacrificed themselves are dismayed to see their hopes dashed while a new order that is as bad as, if not worse than, the one they ousted becomes reality.”2 In the case of the Arab uprisings, however, one cannot easily distinguish the causes and the consequences of such an outcome. Hence, the ‘Islamisation’ of the new governments is a rather simplistic view of the complex political and economic interests prevailing in the North Africa region and the Middle East. The Muslim world has a tradition of fighting against oppression. From the Algerian Resistance against the French through the Islamic Jihad against the Soviets in Afghanistan to the ever-lasting Palestinian struggle for self-determination, the Mus1 See Siraj Mufti, Muslims Love Democracy, Muslim Democrat 4 (2002), 2, according to which 80 % of Muslims would like to see their countries democratise, cited by Muqtedar Khan, Preface, in: Muqtedar Khan (ed.), Islamic Democratic Discourse: Theory, Debates, and Philosophical Perspectives, 2006, xii, footnote 3. 2

John Bradley, After the Arab Spring: How Islamists Hijacked the Middle East Revolts (2012), 16.

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lim faith has served as a strong cohesive element in the fight against colonial, and nonMuslim, rulers. Furthermore, Islamic law accords symbolism and value to a common Muslim ethos and a certain idea of brotherhood amongst Muslims.3 This idea – while particularly useful for the establishment of a right to resistance of the Muslim people against colonial rulers – has totally excluded the case of oppression emanating from the Muslim leaders themselves, against their own peoples. Even worse, the concept of jihad is commonly championed by extremists and jihadi organisations, including the Al-Qaeda, blurring the frontiers between the right to resistance and terrorism, and justifying otherwise unjustifiable acts.4 Hence, prior to the outburst of the Arab revolutions, the concept of oppression had never been considered to include tyrannical Muslim regimes of the post-colonial Arab world. The Muslim world’s dictators have also never been held accountable for human rights violations and abuses against their own peoples. There is practically no modern post-colonial jurisprudence on the right to resist oppression against Muslim leaders; neither is there any serious domestic precedence on holding Muslim leaders accountable for crimes committed against their own peoples – apart from the highly politicised and US-sponsored Dujail trials.5 Accountability of Muslim rulers conducted by their own peoples, including the right of the Muslim populations to resist oppression, remains to a large extent an unexplored subject in both Islamic criminal law and Islamic law. The present paper analyses the reasons for this ‘accountability deficit’ and examines the efforts that have been undertaken in the context of the Arab Uprising to bring certain Muslim leaders to justice. Further, it observes that accountability in the Arab region has a realistic perspective of leading to punishment only if it includes a genuine understanding of the history, culture and religion of this part of the world. In the case of domestic trials, such an understanding suggests that Muslim leaders should be held accountable for committing international crimes, including human rights abuses. In the case of international prosecutions, or prosecutions in foreign domestic courts as 3 The Qur’an refers to other Muslims as ‘brothers’, see Qur’an, Surat Al-Baqarah (II), verse 178, in which the Qur’an says: “[b]ut whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct”. 4 See Shaheen Sardar Ali/Javaid Rehman, The Concept of Jihad in Islamic International Law, Journal of Conflict and Security Law 10 (2005), 321; on the difficulty of defining terrorism, see UN SubCommission on the Promotion and Protection on Human Rights, Report on Terrorism and Human Rights by Kalliopi Koufa, Special Rapporteur, 27 June 2001, UN Doc. E/CN.4/Sub.2/2001/31 (2001). 5

See infra, note 27 and accompanying text.

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part of trials based on the concept of universal jurisdiction, it would suggest a stronger political will of these countries to collaborate with the international community. The paper submits that Islamic law arguments may play an extremely positive role in the establishment of a culture of accountability, including the exercise of universal, or quasi-universal jurisdiction. The authors suggest that the crucial element of the political and constitutional restructuring is not only the democratic transition; it is also the transition from a culture of impunity into a culture of judicial accountability.6 This transformation has not yet taken place in the Arab world, and, as this article submits, it can only take place by considering the question of accountability from an Islamic law perspective. It must also show sufficient regard to the colonial legacy of the history of the Muslim world and its reactions to colonial, oppressive and racist regimes. Even more substantially, the role of Islamic law has been unjustifiably neglected in international criminal law even though it can provide powerful arguments for the consolidation of the right to resistance, the building of the idea of universal jurisdiction, and the tackling of immunities in the case of human rights crimes. The present paper contributes to the forging of this culture of accountability, inextricably linked to political and legal maturity, and highlights that such a culture may also play an essential role in the prevention of international crimes in the future.7 Section II examines the involvement of international actors in the Arab world, prior to and after the uprisings, suggesting that there have been only a few efforts to hold Arab leaders accountable, and that these efforts are unavoidably failing. Section III suggests an approach to accountability based on Islamic law and on the Muslim world’s colonial legacy, exploring the Sharia principles towards governance and accountability of the ruling political elite. Section IV of the article examines the Sharia’s position towards oppressive regimes and the extent to which a right to 6 As noted by Uchino, this is not an easy task: “as these changes occur and democratic civilian leaderships have the potential to emerge, the new governments, citizens, and the international community grapple with a multitude of issues concerning how to most appropriately affect transitions, allowing these countries to move forward. One of the most controversial and difficult issues will be determining how to hold the ousted heads of state accountable for any illegal acts they committed during their rule.” See Masaya Uchino, Prosecuting Heads of State: Evolving Questions of Venue – Where, How, and Why?, Hastings International and Comparative Law Review 34 (2011), 341, 342. 7 The authors endorse Malekian’s opinion that “prevention will not be achieved through Islamic or ICC jurisprudence, or through any other system of law, but solely by cultivating equal justice together with the spirit of love and mutual admiration.” See Farhad Malekian, The Homogeneity of International Criminal Court with Islamic Jurisprudence, International Criminal Law Review (ICLR) 9 (2009), 595, 595.

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resistance is built within Islamic legal traditions. The final Section presents a number of concluding reflections on ways to build sustainable democracies in the Arab world.

II. The Involvement of International Actors in the Arab World In the Arab world financial interests have determined the nature and extent of international involvement in the region, perhaps more than in any other part of the world. That said, while there have been certain, albeit limited, efforts to hold leaderships accountable, these efforts have been paralysed by deeply entrenched and significant political and economic interests.

A. A Culture of Impunity Nourished by Western Interests

The significance of the Arab revolutions and the need for sustainable judicial accountability mechanisms cannot be measured, or understood, without appreciating the culture of impunity that had been entrenched in the Arab world prior to the revolutions. In fact, for several decades, Muslim dynasties have ruled with absolute immunity – and impunity. Many reasons can be advanced for such failings including the absence of pertinent political debate on democracy and ironically the region’s richness in energy resources. The Arab world has been ravaged by autocracy, political intolerance, coup d’états, military manoeuvres and the extreme detachment of the ruling dynastical elite from the people through totalitarian fiefdoms.8 The safeguard of this culture of impunity was perpetuated for years through a twofold strategy. This first involved neutralising the military and gaining the support of the army by granting important privileges to high ranked military officers,9 then secondly setting up Western-supported and funded security systems, and allowing these systems to See Col Narayan, The Leaders of the Arab World (1981); Edward Wakin, Contemporary Political Leaders of the Middle East (1996); more generally John Esposito/John Voll, Islam and Democracy (1996). 8

Salam Kawakibi/Bassma Kodmani, The new Arab awakening; To shoot or not to shoot?, Le Monde Diplomatique, 4 March 2011, extract cited in: Wendy Kristianasen (ed.), The Best of Le Monde Diplomatique 2012 (2012), 164 et seq.: “[t]hese security agencies in particular largely resembled those in Latin America and Eastern Europe prior transition. […] [They] would be directly managed by the mukhabarat (intelligence agencies), and would be responsible for the maintenance of order, allowing leaders to be able to sleep easy in the knowledge that the security services were looking after things”. 9

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penetrate all aspects of public life.10 The national interest of these third States is rooted in the region’s oil resources and, in turn, leads to compromise over issues of democracy and human rights.11 Moreover, the Arab States largely suffered from a democratic ‘set-back’ after the 1950s. This was coupled with a re-Islamisation of the public sphere in the post-Gulf War period12 as several rulers of the Muslim world used the threat of religious extremism to “repress mainstream Islamic movements and limit the development of civil society.”13 Notwithstanding ratification of the most significant human rights instruments, including the two International Covenants,14 the leaders of the Arab world have been involved in scandals of corruption and abuse of power, and have been responsible for human rights violations, enacting policies of persecution of minorities, censorship and repression of fundamental rights.15 This extreme repression has never been accompanied by consistent international strategies on intervention, justice and peace. The lack of inclination towards international criminal prosecutions of political leaders in the Muslim world demonstrates the particularly complex relationship

Ibid. The States of the Middle East have been therefore characterised as ‘security states’, see John Esposito, Islam and Politics: Contemporary Issues in the Middle East (1998), 327 et seq. 10

11 As noted by Saif Aita, for instance, the New York Times had reported in 2011 that in 2009, Qaddafi demanded from the oil firms operating in Libya to contribute to the compensation to the British after the Lockerbie incident or otherwise lose their licences. See Eric Lichtblau/David Rohde/James Risen, Shady Dealings Helped Gaddafi Build Fortune and Regime, NY Times, 24 March 2011, available at: http://www.nytimes.com/2011/03/24/world/africa/24qaddafi.html?pagewanted=all (accessed on 17 January 2013) and also Samir Aita, Follow the money, in: Wendy Kristianasen (ed.), The Best of Le Monde Diplomatique 2012 (2012), 169.

See John Esposito, Introduction, in: John Esposito/François Burgat (eds.), Modernizing Islam: Religion in the Public Sphere in the Middle East and Europe (2003), 1–16; id., Islam and Civil Society, in: ibid. 69–102. 12

13

Ibid., 70.

Libya ratified both the International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS 993, 3 (ICESCR) in 1970; Morocco in 1979; Egypt in 1982 (signed in 1967); Tunisia in 1969; Syria in 1969; Yemen in 1987; Bahrain in 2006 and 2007 respectively. See the status of ratifications of the ICCPR, available at: http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-4&chapter=4&lang=en (accessed on 12 December 2012) and the status of ratifications of the ICESCR, available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY &mtdsg_no=IV-3&chapter=4&lang=en (accessed on 17 December 2012). 14

15 See Muriel Mirak-Weissback, The ‘Madmen at the Helm’: Pathology and Politics in the Arab Spring (2012).

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between the West’s economic interests and the corresponding selectivity, politicisation, and in some cases absence of human rights structures. Prior to the Arab Uprising, and as part of the ‘global justice’ cascade, increasingly visible over the past two decades, some Muslim leaders have been held accountable in the frame of both domestic and international trials. According to Lutz and Reiger, between 1990 and May 2008, 67 Heads of State or Government from 43 States were indicted for serious criminal offenses.16 The prosecutions were for crimes ranging from sodomy to treason – but most were related to human rights violations and economic crimes.17 From these prosecutions, sixteen were from Africa (23 %), seven from Asia (11 %) and only two concerned the Middle East (3 %).18According to another examination of these statistics undertaken by Sykkin in 2011, the regional distribution of prosecutions in the 1979–2009 was only 1 % for the Middle-East and North Africa (MENA) region, with 6 % in Asia and 13 % in Africa, whereas the Americas accounted for 55 % and Europe 22 %.19 However, a reading of these numbers with regard to the regions reveals that such trials have occurred mostly in the Sub-Saharan and central region of Africa, while the MENA region, where the Arab Uprising started, has been largely left untouched. At a political level, the Muslim States have a rather generalised attitude on the persistence of a culture of impunity. Despite the fact that some Muslim States, at least formally, have been active in political negotiations regarding international criminal justice, the case remains that the principle of accountability is yet to be embraced by the Muslim States politically. The same applies to regional organisations such as the Organization of the Islamic Cooperation (OIC), whose agenda is exclusively aimed at promoting the interests of Muslim States. The tendency towards impunity is exhibited, for example, in the voting against the creation of the International Criminal 16 Ellen Lutz/Caitlin Reiger, Introduction, in: Ellen Lutz/Caitlin Reiger (eds.), Prosecuting Heads of State (2009), 12 et seq. Likewise, Bassiouni notes, after the Pinochet and Gaddafi trials, between 1990 and 2005, 59 Heads of State from 39 countries were indicted for their misconduct while in office for both human rights crimes and corruption crimes, the majority of these cases having been initiated by national jurisdictions; see Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (2011), 641. 17

Lutz/Reiger (note 16), 12.

18

Ibid.

Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (2011), 21 et seq. 19

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Court (ICC), where, along with the US, several Muslim States voted against the Statute.20 Similarly, after the emergence of the Arab Spring, the desire for accountability in the Muslim world has taken in many cases the form of extra-judicial castigation rather than any form of judicial accountability. The summary execution of President Muammar Qaddafi, which was performed publically, recorded and uploaded to the internet, as well as similar threats made towards President Assad provide good illustrations of such extra-judicial retribution. Moreover, in the few accountability procedures that have actually been established at an international level the Muslim States, either as members of the OIC, or members of the African Union (AU) or the Arab League, have not been particularly forthcoming to offer their collaboration in efforts to hold Muslim leaders accountable. This has been particularly obvious in the case of the Sudanese President Al Bashir:21 even though Al Bashir has been indicted by the ICC at the request of the Security Council,22 there has been absolutely no cooperation from the Arab world, regional organisations, the OIC or the in casu more powerful AU to deliver Al Bashir to The Hague.23 As for former Liberian President Charles Taylor,24 who was indicted by the Special Court in Sierra Leone, reactions have been similar. His transfer to Sierra Leone has been privately condemned in particular by several Muslim – both African and Asian – leaders.25 It is not surprising though that Muslim States in a spirit of brotherhood have successfully demanded accountability for non-Muslim Libya, Qatar, Iraq and Yemen; see Statute of the International Criminal Court, UN Doc. A/ CONF.183/9 (1998), as revised by the procès-verbaux of 10 November 1998 and 12 July 1999 in PCNICC/1999/INF/3. 20

ICC, Pre-Trial Chamber I, The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-21, Warrant of Arrest for Omar Hassan Ahmad Al Bashir of 4 March 2009, available at: http://www.icccpi.int/iccdocs/doc/doc639078.pdf (accessed on 12 December 2012); id., Pre-Trial Chamber I, The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir of 27 August 2009, available at: http://www.icc-cpi.int/iccdocs/doc/doc 907140.pdf (accessed on 12 December 2012). 21

22

Security Council (SC) Res. 1593 of 31 March 2005.

African Union, Decision of the Meeting of African States Parties to the Rome Statute of the ICC, Assembly/AU/13(XIII), 3 July 2009, Assembly/AU/Dec.245(XIII), 2, para. 10. 23

24 SCSL, The Prosecutor v. Charles Ghankay Taylor, SCSL-03-01, several Decisions since 3 March 2003, available via: http://www.sc-sl.org/CASES/ProsecutorvsCharlesTaylor/TrialChamber Decisions/tabid/159/Default.aspx (accessed on 12 December 2012). 25 Abdul Tejan-Cole, A Big Man in a Small Cell: Charles Taylor and the Special Court for Sierra Leonne, in: Ellen Lutz/Caitlin Reiger (eds.), Prosecuting Heads of State (2009), 205, 226.

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Heads of State committing international crimes in several cases, whereby the establishment of the two ad hoc International Tribunals was widely supported.26 As for domestic criminal proceedings triggered against serving or former Heads of State, the Dujail trials in Iraq provide an interesting insight as to how political, economic and financial self-interests can prevail above natural justice and the right to fair trial. In this process the former military dictator Saddam Hussein was tried before a domestic Iraqi Tribunal, the Iraqi Special Tribunal (IST). Hussein was charged with crimes against humanity resulting in the deaths of 148 Iraqi Shiites in the town of Dujail after a failed assassination attempt. The entire conduct of the trial, the composition of the Judges and its proceedings were biased and manipulative, while the IST was politically polarised and the proceedings unfair and fundamentally flawed.27 At the same time, the interests of the US intervention in Iraq have never been kept secret,28 while Saddam himself had been the architect of the Iraqi petroleum nationalisation, to which he owed his successful coup d’état.29

B. Absence of Effective Accountability Mechanisms After the Arab Uprising

The sole precedent of actual international criminal proceedings during the Arab Uprising relates to Libya where the ICC initiated investigations against the late Muammar Qaddafi, his son Saif Al-Islam and Abdula Al-Senousi pursuant to Security Council Resolution 1970 (2011).30 Similar to the Cases of Al Bashir in Sudan and Charles Taylor in Liberia there has once again been no effective collaboration from 26 For example, some Muslim States have held a rather positive attitude towards the establishment of the two ad hoc criminal tribunals for the former Socialist Republic of Yugoslavia and Rwanda. See, e.g., the statements of Oman and Pakistan in the case of the creation of the ICTR, UN Doc. S/PV 3453 (1999), 8 November 1994, 10 and 16.

See Mary Margaret Penrose, The Emperor’s Clothes: Evaluating Head of State Immunity Under International Law, Santa Clara Journal of International Law 7 (2010), 85, 131. 27

28 Even though in public, this has been translated into the need of disarmament, according to former US President George W. Bush’s speech prior to invasion.

Michael L. Ross, Will Oil Drown the Arab Spring? Democracy and the Resource Curse, Foreign Affairs 90 (2011), 2. 29

ICC, Pre-Trial Chamber I, The Prosecutor v. Saif Al-Islam Gaddafi, Abdullah Al-Senussi and late Muammar Gaddafi, ICC-01/11-01/11, Warrants of Arrest issued on 27 June 2011. 30

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the Arab-Muslim world in the enforcement of these indictments. In fact, the prosecutions have been condemned by both the OIC and the League of the Arab States, and partially by the AU – an organisation presided over by Qaddafi himself in 2009.31 Moreover, the Libyan Transitional Council itself has not as yet been willing to collaborate with the ICC. As a result, until recently the ICC’s new prosecutor, Fatou Bensouda, has consistently requested the new Libyan government “to ensure that justice is served in relation to any crimes committed during the overthrow of the regime of former leader Muammar al-Qaddafi.”32 As for domestic mechanisms of justice and accountability in Libya, the United Nations has indeed created a Support Mission in Libya (UNSMIL)33 that monitors the democratic transition, including the creation of justice mechanisms. Hence, the UN mandate in Libya, at least until March 2013, inter alia, supports the efforts of the new Libyan authorities to: manage the process of democratic transition, including through technical advice and assistance to the Libyan electoral process and the process of preparing and establishing a new Libyan constitution […] and assistance that improves institutional capacity, transparency and accountability […].34

In practice, funding and an investigation mechanism are required in order to bring the perpetrators of crimes to justice. Funding is obtained through other international organisations, such as the International Monetary Fund and the World Bank, whose intervention into a national context in the Middle East and North Africa comes under a particularly complex scheme of collaboration, occasionally involving strong patronising. However, the Security Council has already commended the Libyan authorities for engaging with the International Monetary Fund and World Bank on conducting an assessment of Libya’s public financial management framework, and

See Eleni Polymenopoulou, African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan Arab Jamahiriya, International Comparative Law Quarterly (ICLQ) 61 (2012), 767, 773. 31

See the briefing of the new ICC prosecutor, Fatou Bensouda at the Security Council on her Libya investigation. SC, Provisional Verbatim Record of the 6855th Meeting, 7 November 2012, UN Doc. S/ PV.6855. 32

33

SC Res. 2009 of 16 September 2011.

34

See SC Res. 2040 of 12 March 2012.

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reiterating its request that the Committee established pursuant to Security Council Resolution 1970 (2011) to “be informed of the results of that assessment.”35 In Syria, where President Bashir Assad continues to remain in office, the UN reactions to the situation have been extremely ineffectual and ineffective. Despite its compassion for the victims of the armed conflict being sunk into bloodshed,36 the UN Security Council has failed to adopt a resolution that could lead to Assad’s arrest and prosecution by the ICC. Similar to the UNSMIL, the Security Council has also established the a UN Supervision Mission in Syria (UNSMIS) “with 300 Observers to Monitor Cessation of Violence, Implementation of Special Envoy’s Plan.”37 Surprisingly, several Muslim States voted in favour of the Resolution. Pakistan’s representative, for example, found that the Resolution was another significant step towards resolving the crisis, as well a reaffirmation of the Council’s united backing of the efforts of the Special Envoy for Syria, former UN Secretary General Kofi Annan. Pakistan’s representative highlighted that the “continued condemnation by all Council members was ‘highly appreciated’”38 and even noted that he “hoped for a change in the dynamics on the ground that would result in a complete cessation of violence and, thus, lead to achieving the Council’s overall objective of a peaceful solution, with full respect for Syria’s sovereignty and territorial integrity.”39 Apart from the Russian and Chinese influence within the Security Council, both of which have consistently vetoed concerted action against Syria,40 the Security Council’s ineffectual response may have additional reasons. Syria does not export as 35

Ibid.

According to a recent report commissioned by the United Nations Office of the High Commissioner for Human Rights (OHCHR), between March 2011 and November 2012 nearly 60,000 persons were killed within the Syrian Arab Republic during the prevailing armed conflict. See Preliminary Statistical Analysis of Documentation of Killings in the Syrian Arab Republic, The Benetech Human Rights Program, commissioned by the United Nations Office of the High Commissioner (OHCHR) 2 January 2013, available at: https://www.benetech.org/download/Benetech-final-SY-report.pdf (accessed on 18 January 2013). 36

37

SC Res. 2043 of 13 April 2012.

Raza Bashir Tarar (Pakistan), SC, Provisional Verbatim Record of the 6756th Meeting, 21 April 2012, UN Doc. S/PV.6756. 38

39

Ibid.

See Laura Trevelyan, Syria conflict: West ‘appalled’ by Russia China UN veto, BBC News, 19 July 2012, available at: http://www.bbc.co.uk/news/world-middle-east-18914578 (accessed on 10 November 2012). 40

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many barrels of oil per day as Libya does,41 and financial institutions in the region do not grow as fast as in Egypt and Tunisia.42 It is indeed the case that the Western powers’ interests have always acted as ‘protectors’ of the oil-regimes and there is no reason to believe that this interest has diminished. In fact, the link between autocracy and resources has become inextricable in most of the petrol-rich Muslim States. Some authors have even noted an ‘oil-curse’, which may have prevented the Arab world from achieving a sustainable model of a democratic transition. As Ross points out: [t]he citizens of countries with little or no oil, such as Egypt, Jordan, Lebanon, Morocco, and Tunisia, generally had more freedom than those of countries with lots of it, such as Bahrain, Iraq, Kuwait, Libya, and Saudi Arabia. And once the tumult started, the oil-rich regimes were more effective at fending off attempts to unseat them. Indeed, the Arab Spring has seriously threatened just one oil-funded ruler – Libya’s Muammar al-Qaddafi – and only because NATO’s intervention prevented the rebels’ certain defeat.43

Hence, there is every reason to believe that democracy is seen by members of the UN as idealistic; although in Realpolitik it is used as an instrument to weaken political radicalism in the Muslim world and to revitalise the prospects for the region’s oil exploitation.44 Naturally, no objections are raised to this sustainable idea of economic development by the transitional leaders since the beneficial perspectives of economic collaboration are equally profitable to them.45

As Knoops notes, Libya exports 1,5 millions barrels of oil per day, while Syria exports only 0.15 million. See Geert-Jan Knoops, Prosecuting the Gaddafis: Swift or Political Justice?, Amsterdam Law Forum 4 (2012), 78, 85. 41

42 In Egypt and Tunisia, the aid of the International community has come along with their obligation to establish ‘free market economies’, see Tim Jones, Is the G8 supporting or undermining the Arab spring?, The Guardian, 3 June 2011, available at: http://www.guardian.co.uk/global-development/povertymatters/2011/jun/03/g8-arab-spring?INTCMP=SRCH (accessed on 10 November 2012); Patrick Wintour, G8 summit to pledge £12bn for Arab spring states, The Guardian, 27 May 2011, available at: http://www.guardian.co.uk/world/2011/may/27/g8-summit-pledge-arab-spring?INTCMP=SRCH (accessed on 10 November 2012). 43 Ross (note 29); and more generally Magdi Amin et al., After the Spring: Economic Transitions in the Arab World (2012). 44 Muqtedar Khan, Prospects For Muslim Democracy: The Role of U.S. Policy, Middle East Policy (MEP) 10 (3) (2003), 78.

See Zach Waksman, New Libyan Government Reaffirms Vow of Democracy to World Leaders, Impunity Watch, 2 September 2011, available at: http://impunitywatch.com/new-libyan-governmentreaffirms-vow-of-democracy-to-world-leaders/ (accessed on 7 December 2012). 45

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III. Building a Culture of Accountability in the Arab World As reminded by Badar, Joseph Schacht once noted that Islamic law is a “phenomenon so different from all other forms of law […] that its study is indispensable in order to appreciate adequately the full range of possible legal phenomena.”46 More than 60 years after this remark, in the light of the revolutions and the extension of international involvement in the region of the Muslim world, one may even go further and comment that international efforts for accountability in the Arab world which neglect the literature of the Islamic tradition on governance, as well as the region’s culture, history, and traditions, including models of governance, are not only insufficient, but are destined to fail. Holding Muslim rulers accountable according to Islamic law can provide fruitful perspectives on nurturing a sustainable democracy within the Muslim world.

A. The Sharia Approaches Towards Governance

Islamic law is often referred to as the Sharia. The concept of Sharia, however, is not confined to legal norms, but conveys a more holistic picture; the Arabic translation of Sharia is “the road to the watering place.”47 The Sharia, unlike Canon law or Kirchenrecht, does not simply represent religious laws, but is arguably an embodiment of a complete system of ethical, social and moral code, providing for and regulating all aspects of human conduct.48 Mohammed, the Prophet of Islam, after his flight to Medina, attempted to lay down core principles of what would be later a large political entity, one of his main goals being the spread of the Islamic religion in Arabia.49 That said, the Qur’an and the Sunna of the Prophet, although the primary sources of the Sharia, refrain from specifying an exclusively Islamic format of constitutional governJoseph Schacht, An Introduction to Islamic Law (1964), v, cited by Mohammed Elewa Badar, Introduction: Islamic Criminal Justice in the 21st Century, ICLR 9 (2009), 591. 46

47 Rom Landau, Islam and the Arabs (1958), 141; Abdulmumini Oba, Islamic Law as Customary Law: The Changing Perspective in Nigeria, ICLQ 51 (2002), 817, 819.

Hassan Moinuddin, The Charter of the Islamic Conference and Legal Framework of Economic Cooperation Among its Member States (1987), 6; Javaid Rehman, Islamic Perspectives on International Economic Law, in: Asif Qureshi (ed.), Perspectives in International Economic Law (2002), 235, 236. 48

49

Moinuddin (note 48), 4.

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ance.50 The Sharia views matters of religion as integral to governmental affairs and does not provide detailed articulation of constitutional structures for an Islamic or Muslim State.51 Nevertheless, a Muslim Head of State is bound to act in accordance with the will of his peoples. In fact, the authority and superiority of the Head of State is conditional upon the acceptance of responsibility to perform governmental functions in accordance with the principles enshrined within the Sharia. While there has been an absence of detailed articulation of constitutional structures for an Islamic or Muslim State, the Sharia aims to provide broad guidelines related to moral virtue both in this world and thereafter. In this respect, the Qur’an 24:55 contains the following passage: Allah has promised those who have believed among you and done righteous deeds that He will surely grant them succession [to authority] upon the earth just as He granted it to those before them and that He will surely establish for them [therein] their religion which He has preferred for them and that He will surely substitute for them, after their fear, security, [for] they worship Me, not associating anything with Me. But whoever disbelieves after that – then those are the defiantly disobedient.

In setting out these broad guidelines, the Qur’an and Sunna underline the significance of governance by consensus (Ijma) as well as consultation (Shura). In referring to Shura, the Qur’an directs “[s]o pass over [their faults], and ask for [God’s] forgiveness and consult them in matters; then, when you have made a decision, put your trust in God” (3:158–159). In verse 42:38 it pronounces that Muslims are “[t]hose who answer the call of their Lord and perform prayer, and who conduct their affairs by mutual consultation, and who spend of what We have bestowed upon them.” The Qur’an goes on to instruct the Prophet “to consult regularly with Muslims on all significant matters and indicates that as society that conducts its affairs through some form of deliberate process is considered to be worthy in the eyes of God.”52 Prophet Muhammad himself endorsed the validity of Ijma. Abu Hurayra, a close ally of the Prophet, is reported to have said that “[I] do not see anyone more [predisposed] to

50

Khaled Abou El Fadl et al., Islam and the Challenge of Democracy (2004), 5.

Therefore, contrary to the claims frequently advanced by Islamists or fundamental radicals within the Arab or Muslim world, the Sharia neither advocates any model of governance nor does it have a view on modalities of state operations. 51

52

El Fadl et al. (note 50), 16, referring to the Qur’an, verses 3:159 and 42:38.

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consultation with his Companions than the Prophet.”53 Moreover, according to one Hadith, the Prophet is reported to have said “[m]y People will never agree together on an error.”54 The Shura system and governance by Ijma can in fact be viewed as supporting the wider principles of the Sharia, including upholding the doctrines of equality, fairness and prevention of arbitrary rule. Early Islamic history also demonstrates the absence of a blueprint for an ‘Islamic government’ both during the life of the Prophet Mohammad and those of his immediate successors. The Prophet did not appoint a successor during his lifetime; his leadership of the Muslim community was inspirational without being authoritarian or prescriptive. The process of election and appointment of each of the four Rightly Guided Caliphs was also varied, though with the underlying application of Ijma and Shura amongst the community of believers. The most publicised instance of the application of Shura as consultative electoral process was the appointment of a six man council established by Umar b. Al-Κhattab for the election of his successor.55 The decisions of the council ultimately led to the appointment of Uthaman as the third Caliph. It is important to emphasise that neither Prophet Mohammad nor any of the rightly guided Caliphs were appointed on the basis of hereditary succession: meritocracy was the defining principle for leadership of the Muslim Ummah. The practices of the Prophet and his rightly guided Caliphs also reflect a strong repulsion for dynastic and arbitrary rule.56 The wider emphasis on maqasid al-sharia (the objectives of Sharia) and an open attitude to the constitutional mechanisms of governance puts into doubt the views of the those Islamists who insist upon an ‘Islamic system’ of government with the application of specifically mandated system of divinely ordained governance.57

53

See Muhammad b. Idris al-Shafi, Kitab al Umm [The Source Book] (1903), Sura 7, verse 86.

Ibn Majah, Collection of Hadith, ‘Fitan’ section (886 A.D.); also cited in Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective (1988), 39; David Funk, Traditional Islamic Jurisprudence: Justifying Islamic Law and Government, Southern University Law Review 20 (1993), 213, 219. 54

55 Asma Afsaruddin, The Islamic State: Genealogy, Facts, and Myths, Journal of Church and State 48 (2006), 153, 159.

It was in fact the nomination and appointment by Mauwiah of his son Yazid that laid the foundations of dynastic rule in Islam. See Mohammad Hashim Kamali, Citizenship and Accountability of Government: An Islamic Perspective (2011), 254. 56

57

Afsaruddin (note 55), 172.

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There is validity in Afsaruddin’s observations that: [e]arly history of Islamic political thought and practices based on a scrutiny of authoritative sources allows us to question many of the stated premises of those Islamists who advocate ‘divine sovereignty’ and a specifically mandated form of government as constitutive of the Muslim polity. It is clear […] that the main ideological positions of those who espouse the concept of ‘Islamic Government’ are not grounded on historical facts. Early Muslims did not appeal to reified notions of governance as God-given; on the contrary, they adapted and innovated in response to the exigencies of their situation while attempting to adhere to certain broad moral, rational, and utilitarian imperatives such as political consultation, representation, accountability, and the welfare of the polity. Political practices and tradition developed over time through recourse to an amalgam of interpreted Qur’anic injunctions, prophetic precedent, ad hoc pragmatic measures, and adapted policies and institutions of ancient Arab, Persian and Byzantine provenance.58

Furthermore, the Qur’an and the Sunnah contain several passages which can be interpreted as promoting political freedom. These concepts mainly pivot around the concept of choice and freedom of will (ikhtyar). Freedom of thought, critical spirit, and, in this sense, political freedom, are also praised in the Qur’an.59 An essential feature of this freedom of conscience is the right to refuse orders based on immorality and those that are contrary to conscience. In this respect, several ahadith can be evoked, and most notably the following hadith of Prophet Mohammad, whereby he is reported to have stated that “there is no obedience in sin. Obedience is declared only in righteousness.”60 According to Kamali, this concept is directly linked to the right to resistance and rebellion, since “[w]hen the ruling authorities give orders that violate the principles of Islam, the individual is not required to obey them. This hadith, in effect, provides the basis of legitimacy for the citizens’ uprising against lawlessness and despotism.”61 The Sharia principles are not confined to accountability of the ruler and a consequent right to resistance or removal of the oppressive regime, but the Qur’anic jurisprudence extends to taking positive measures for the establishment of a just political government. In the Qur’an is noted that:

58

Ibid.

59

See Mohammad Hashim Kamali, Freedom, Equality and Justice in Islam (2002), 4.

Al-Tabrīzī,‘ Abd Allāh Khatīb, Mishkât al-Masabih, II (eds.) Muhammad Nāsir al-Dīn al-Albānī, (Beirut: al-Maktab al-Islāmī, 1399/1979), hadith 5129. 60

61

Kamali (note 59), 23.

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And if two factions among the believers should fight, then make settlement between the two. But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah. And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly (49:9).

The primary focus of this verse is upon Muslims themselves, though the underlying principles of justice and equality are universal. The Qur’an requires the community of believers to settle disputes amongst themselves in an amicable manner. Collectively, as brothers in religion, Muslims are under an obligation to mediate between two disputing factions. However, there is also a command to fight against the oppressor for ensuring just peace. The broader, universal message of intervening on a humanitarian basis is found in Sura An-Nisā: O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, Acquainted (4:135).

The message of just treatment is reiterated in Sura Al-Māidah: O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is Acquainted with what you do (5:8).

B. Removing Immunities in the Case of Human Rights Violations

As a result of the principle of ‘good governance’, incumbent upon the Muslim rulers, Islamic law provides an interesting perspective on immunities ratione personae, particularly those relating to Heads of State and high-ranking officials. In international law, the piecemeal erosion of the doctrine of immunities has been an increasingly disconcerting aperture in the armour of State sovereignty, making it possible to trigger responsibility for international crimes, crimes against humanity and human rights violations. Important judicial precedents, ranging from the Nürnberg

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principles,62 to domestic and regional trials such as that of Pinochet63 and Al-Adsani,64 and ultimately, to the drafting of the ICC statute,65 reveal a certain trend to exclude crimes against humanity and human rights violations from the immunities principle. Yet, Heads of States immunities, either ratione personae or ratione materiae, remain a controversial topic and there is no uniformity either in academic discourse or in judicial practice as to the extent to such immunities are available. A useful illustration of the controversy is provided by Fox.66 Referring to the different views on immunities, Fox compares the deliberations of two different international legal bodies that almost contemporaneously discussed the question of such an exception: the first, the ad hoc working Group of the Sixth Committee in order to draft the UN Convention on State Immunities in 2004.67 Presided by Professor Hafner, the working group examined the question of removing immunity in cases involving claims for civil damages against States for serious violations of human rights. However, it refused to take up the issue in the discussions of the Third Committee on the grounds that it was not possible to specify exactly what constituted a serious human rights violation that would allow the

62 Principle II of the Charter of the Nürnberg Tribunal, reaffirmed in GA Res. 95 (I) of 11 December 1946: “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law”.

UK House of Lords, R v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147. See, however, Lord Bingham’s opinion from the lower instance High Court decision in the Pinochet Case: “a former Head of State is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions. One cannot therefore hold that any deviation from good democratic practice is outside the pale of immunity. If the former sovereign is immune from process in respect to some crimes, where does one draw the line?”, R v. Bow Street Magistrates Court, Ex parte Ugarte, [1998] All ER (D) 509, 629. Quoted by Lord Goff in Pinochet Ugarte (No. 3), 218. 63

64

E.g., ECtHR, Al-Adsani v. the United Kingdom, Judgment of 21 November 2001, RJD 2001-XI, 79.

The ICC Statute in Art. 27, para. 2 provides that: “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.” However, it is a recurring practice for the States to invoke the applicability of immunities, as resulting from customary law. See, e.g., the submissions of Taylor at the SCSL, Appeals Chamber, The Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-I, Decision on Immunity From Jurisdiction of 31 May 2004, para. 6, available at: http://www.sc-sl.org/Link Click.aspx?fileticket=7OeBn4RulEg=&tabid=191 (accessed on 12 December 2012); see also infra (note 80). See also more generally Yitiha Simbeye, Immunity and international criminal law (2004), 52. 65

66

See Hazel Fox, The Law of State Immunity (2008), 140.

67

UN Convention on State Immunities, 2 December 2004, UN Doc. A/59/38 (2004).

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waiving of State immunity.68 The second was the Commission on Darfur, appointed by the High Commissioner on Human Rights in 2004 to investigate the situation in Darfur and decide whether genocide had occurred.69 This Commission, chaired by Cassese, while examining the Sudanese National Security Force Act 1999 that granted officials immunity from prosecution for any act connected with their ‘official work’, came to the opposite conclusion, finding the argument of immunity contrary to human rights law.70 It seems therefore rather clear in international law that, as long as the argument of State sovereignty is valid, and no consensus in State practice is found on the matter, the idea of a ‘human rights exception’ to Heads of State immunities will not be established.71 The stance taken by Islamic law could be of immense significance to this debate, contributing to the rectification of persistent domestic laws in the Arab-Muslim world that prohibit criminal proceedings against former Heads of State.72 If – as has been hypothesised – the Sharia has a particularly flexible approach towards the determination of mode of governance, are there any particular prescriptions built around immunities for actions conducted by the Head of the Muslim State? Contrary to the prevailing practice in the international legal order, including the Muslim world, a historical survey reveals that accountability of Heads of State has always been at the core of the Muslim State, with significant examples in the early phases of Islam. In fact, Islamic law provides a strong argument to tackling immunities of Heads of According to Professor Hafner, “any attempt to include such a provision, would certainly jeopardize the success of the Convention,” cited by Fox (note 66), 140; see also Hazel Fox, In Defence of State Immunity: Why the UN Convention on State Immunity is Important, ICLQ 52 (2006), 399, 401–402. 68

Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral pursuant to SC Res. 1564 of 18 September 2004, 25 January 2005, 2, available at: http://www. un.org/news/dh/sudan/com_inq_darfur.pdf (accessed on 12 December 2012). Ibid., paras. 451–454: in fact, one of the main issues to overcome was that Sudanese law provided wide powers to the executive and granted immunity from prosecution to many state agents. 69

Ibid., para. 625: “[t]his provision is in any case contrary to international law, at least if applied to serious violations of international human rights law and crimes against humanity. Immunities currently accruing to other public officials, such as members of the police, for human rights violations, should also be abolished”. 70

71 See generally Dapo Akande, International Law Immunities and the International Criminal Court, American Journal of International Law (AJIL) 98 (2004), 407, 407. 72 Not only in the case of human rights trials but in both abuse of law and corruption trials. As noted by Lutz/Reiger, it is increasingly commonplace in Asia for States to try senior officials for corruption and financial crimes committed while they were in office, see Lutz/Reiger (note 16), 17.

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State in the case of human rights violations. Prophet Mohammed as Head of the first Muslim State in his farewell sermon noted: O people! If I have flogged anyone [wrongly], let him retaliate here and now. If I have insulted anyone, let him reciprocate. If I have taken anyone’s property, let him claim it and take it from me. Let no one fear any rancour on my part, for that would not be becoming of me. Be aware that one who takes back his right from me is most dear to me, for I wish to meet my Lord with a clear conscience.73

The Prophet is also reported to have said: People before you perished because they did not punish a noble man among them if he committed theft, but enforced the punishment only on the weak. By God, if Muhammad’s daughter, Fatimah, committed theft, I shall [not hesitate to] cut her hand.74

Political accountability entails the rule of law and equal treatment by courts of law, and the early Islamic practices are unanimous in the view that no one – including a Head of State – enjoyed any privileges before a court of law. On matters of personal and political accountability, both the Qur’an and the Sunna do not make any exceptions in favour of any individual, with all the ordinances having equal applicability regardless of position or status in the society.75 Thus, according to the often cited reports, the second rightly-guided Caliph Umar ibn al-Khattab purchased a horse, but soon thereafter discovered that the horse suffered from an ailment. A dispute on the quality of the horse ensued, and Shurayh al-Iraqī was appointed as an arbitrator to resolve the dispute. Shurayh al-Iraqī found against Umar ibn al-Khattab on the facts of the case, requiring the latter to return the horse in the condition in which he found it. The Caliph Umar ibn al-Khattab not only fully accepted and complied with the arbitrator’s ruling, but also subsequently appointed him to a judicial office.76 In his statements to his Judges and magistrates, Umar ibn al-Khattab was firm in his view that it was not permissible for judges to treat disputing parties any differently even to the extent of presence in court.77 There has to be complete impartiality Ali ibn Ahmad ibn al-Athîr, al-kamil fi’l-Tarikh (Cairo: Matba ‘at al Shaykh Ahmad al-Bâbî alHalabî, 1303 AH, II, 154 al-‘Ilî, Hurriyyât), 272. 73

74

Abû Yû suf, Ya‘qūb b. Ibrāhīm, Kitāb al-Kharâj, (Cairo: al-Matba‘ah al-Salfiyyah, 1396 AH), 166.

75

Kamali (note 56), 198.

76

Ibn Idrīs al-Shafi (note 53).

For English translations of these letters and statements, see Abu M Ishaq, Al-Ahkam al-Sul taniyya: Laws of the Government in Islam, Islamic Studies 4 (1965), 289. 77

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regardless of the power, prestige and political influence which one of the parties may have. This tradition of respecting adverse judgments and appreciating such actions by Caliphs is also evidenced during the Abbasid period. The general principle of equality is enshrined in Mejelle’s The Civil Code of the Ottoman Empire and specifically in Article 1799, according to which the judge is under a duty to treat the litigants equally both in regard to the application of the basic principles of justice and in the conduct of trial, such as in the matter of seating, and the manner of address, even if one of them be a man of nobility and the other a commoner.78

C. Strengthening the Idea of Universal Jurisdiction

Islamic law’s contribution could be equally substantial in the case of universal jurisdiction, i.e. the institution of prosecutions for violations of either humanitarian law or human rights law in national courts of States other than where the acts occurred. In international law the grounds for universal jurisdiction, regarding in particular admitting locus standi to a victim, are generally the inadequacy of national enforcement legislations and the gravity of the alleged international crimes.79 However, similar to immunities,80 no relevant provisions on universal jurisdiction exist in texts expressis verbis. The answer can only be provided in casu by domestic jurisdictions, which, with some audacity, may consider themselves competent to judge a former Head of State for crimes against humanity and other humanitarian law violations.81 78

Cited in Kamali (note 59), 57.

According to Akande the two conditions for universal proceedings to take place are first that courts have jurisdiction over crimes committed abroad by foreign nationals against foreign nationals, and second that this jurisdiction extends to the foreign State’s agents. See Akande (note 71), 1. 79

In the Arrest Warrant Case, the ICJ observed that “the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.” However, as noted by Fox, Judges Higgins, Kooijmans, and Buergenthal in their joint separate opinion, while admitting that “there is a distinct corpus of law that applies to each,” highlighted the inextricable link between immunity and jurisdiction; see ICJ, Arrest Warrant (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports 2002, 65, paras. 3–4; Fox (note 68), 401. 80

81 For an overview of domestic practices, see Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (2003).

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Islamic law may once more provide interesting arguments towards strengthening the idea of universal jurisdiction. As noted earlier, in its capacity as a moral, ethical, religious and legal code, the Sharia is applicable to all members of the Ummah. It knows of no boundaries and cannot therefore be based on jurisdictional limitations. Furthermore if – as is being argued in this paper – the Sharia is based on core values of justice, egalitarianism and the rule of law in governance, then it would be impossible to restrict the applicability of the aforementioned core values on the basis of religious affiliations. In other words, the principles of justice, egalitarianism and the rule of law must by their very nature be applicable to everyone, regardless of creed, religion or nationality. The notion of universal jurisdiction built into the Sharia is also applicable in the context of international crimes. This expanded vision of the Sharia and the Ummah provides refreshing possibilities for overcoming limitations within existing norms of international law and international criminal law. As noted already, within the Sharia, the ruler remains par excellence accountable not only for his personal actions but is also accountable in instances where, because of natural or other disasters, his government is unable to fulfil the needs of the population. In this sense, a Muslim State is a welfare State and can only impose its authority once it is able to satisfy the just demands of its citizens. Hence, when the Muslim State is not able to provide for the welfare of its citizens, the State cannot seek compliance nor can it apply criminal sanctions for disobedience of laws. One often-cited and prominent example of the Islamic State establishing a moratorium for those engaged in theft was during the famine in the Caliphate of Umar ibn al-Khattab (634–644).The Qur’an has very explicit provisions on theft. However, in applying the Sharia, Umar ibn al-Khattab was conscious of administering the core underlying principles of justice, egalitarianism and the rule of law to all the citizens of the Muslim State. Recognising the severity of the famine upon the poor and needy, and the obligation on the State to cater for their needs, Umar suspended the Quranic injunction of criminal sanctions against all those who were engaged in the theft of food for survival. Umar ibn al-Khattab was of the view that without establishing a just and fair society, it would be State oppression to cut off the hands of a thief who was forced into theft for personal survival. The extreme consciousness of Umar ibn al-Khattab as to the accountability of the State is also exemplified by his statement

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that: “Let alone man, even if a dog dies of hunger on the banks of rivers Dajla and Farat, I should be held responsible for mis-governance.”82

IV. Consolidating the Right to Resist Oppression Conducted by Muslim Heads of State A. A Controversial ‘Right to Resist Oppression’ under International Law

The ‘right to resistance’ against an oppressive ruler is not explicitly proclaimed in international law, and there is currently no treaty provision proclaiming the peoples’ right to rebel. However, it has been argued that such a right may parenthetically be derived from the right of the peoples to self-determination, which is, in turn, enshrined in the United Nations Charter,83 in the International Covenants on Human Rights,84 the Declaration on the Granting of Independence to Colonial Countries85 and the Declaration on Principles on Friendly Relations and Co-operation among States.86 Self-determination is now regarded a norm of jus cogens87 although the extent to which this right incorporates a right to rebel against oppressive regimes has been a matter of substantial controversy. Developing States (many of whom represent the Muslim block) have supported the right to resistance in the context of the decolonisation movement. For the Muslim States, acts of violence conducted by individuals or national liberation movements See Saeed Mohtsham, Vision and Visionary Leadership, International Review of Business Research Papers 3 (2007), 248, 258. 82

83

See Arts. 1 and 55 of the Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

The Common Art. 1 of the ICCPR and the ICESCR. Among regional instruments, the right to self-determination is also contained in the African Charter on Human and People’s Rights (ACHPR), 27 June 1981, UNTS 1520, 217. 84

85

GA Res. 1514 (XV) of 14 December 1960.

86

GA Res. 2625 (XXV) of 24 October 1970.

Malcolm Nathan Shaw, Title to Territory in Africa: International Legal Issues (1986), 91; UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report on the Implementation of United Nations Resolutions Relating to the Right of Peoples under Colonial and Alien Domination to Self-Determination by Héctor Gros-Espeil, Special Rapporteur, 22 June 1977, UN Doc. E/CN.4/Sub.2/390, 17–19. 87

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against foreign, colonial and oppressive regimes were to be condoned or justified. The justification inherent in the cause of those challenging oppression provided sanctity to all violent actions, including acts of terrorism and hostage taking.88 In fact, for the Muslim States, the inherent right to resistance and disobedience against European imperialists epitomised struggles for liberation that were just and legitimate.89 During the decolonisation phase in particular, the Muslim world remained a strong proponent of the right of self-determination, largely treating this right as being synonymous with independent Statehood.90 Hence, the right to self-determination became synonymous with a ‘right to rebellion’ against colonial, foreign and oppressive regimes. The travaux préparatoires of the International Convention against the Taking of Hostages provides interesting perspectives on the position adopted by Muslim majority States. In so far as the Muslim States were concerned, the concept of resistance was directed exclusively against ‘foreign’,91 or colonial domination. In coalition with other developing countries, Muslim majority States established a front demanding exceptions for the peoples struggling for liberation. Acts conducted by national liberation movements were distinct and could not be categorised as ordinary criminal activities. Thus, the Syrian representative made the comment that “acts perpetrated by criminals under ordinary law could not be placed on equal footing with the struggle of national liberation movements which, by their objectives, were entirely different.”92 In reiterating this agenda, the delegate of Iran made the emphatic claim that “[t]he Convention must not in any way impair the exercise of the legitimate right to self-determination and independence of all peoples, and especially those struggling 88 See Working paper submitted by the Libyan Arab Jamahirya, UN Doc. A/AC.188/L.9, in: 1977 Report of the ad hoc Committee on the Drafting of an International Convention Against the taking of Hostages, GAOR, 32nd Sess., Supp. 39, 106–110, 27 September 1977, UN Doc. A/32/39 (1977). 89 See Verwey, who suggests that the bellum justum doctrine was refashioned to support those fighting racist regimes and alien and foreign oppression, Wil D. Verwey, The International Hostages Convention and the National Liberation Movements, AJIL 75 (1981), 73. 90 Rupert Emerson, Self-Determination, AJIL 65 (1971), 459; Javaid Rehman, Reviewing the Right of Self-Determination: Lessons from the Experience of the Indian Sub-Continent, Anglo-American Law Review 29 (2000), 454. 91 ‘Foreign’ is used in this context to describe an individual’s identity, including religion, as an element of both a social and cultural identity. The equivalent terms would be ajnabi/gharib or ajnabi/ ghair in some South Asian languages and dialects. See also Avtar Brah’s terminology on difference: Avtar Brah, The Scent of Memory: Strangers, Our Own, and Others, Feminist Review 61 (1999), 4, 18. 92

See Third Report of the Hostages Committee (note 88), 14, para. 55.

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against colonialism, alien domination, racial discrimination and apartheid.”93 Thus, as the discussion proceeded, according to the Tanzanian representative the ‘Hostage Taking Convention’ was inapplicable “against national liberation movements which took their oppressors hostage in the course of a struggle against a colonial government or a racist foreign regime.”94 According to the delegate of Tanzania, the draft Convention, as a prerequisite, needed to “recognise the legitimacy of the struggle of national liberation movements and the inalienable right of freedom fighters to take up arms to fight their oppressors.”95 Further support was provided by the delegates of Lesotho, later joined by the representatives of Algeria, Egypt, Guinea, Libya and Nigeria. Their proposal was that: for the purposes of this Convention, the term ‘taking of hostages’ shall not include any act or acts carried out in the process of national liberation against colonial rule, racist and foreign regimes, by liberation movements recognised by the United Nations or regional organisations.96

A number of Muslim States argued vigorously that National Liberation Movements should be exempt from the provisions of the Convention when action was being taken against colonial and racist regimes. Such a proposition provoked opposition and concern amongst the developed world and amidst the remnants of colonial world. The representative of Yemen noted: “either there would be an internationally accepted convention against the taking of hostages which did not apply to acts carried by recognised national liberation movements in the course of their struggle, or there would be no convention at all.”97 Muslim States, taking advantage of such organisations as the OIC and the League of Arab States, have even gone further than that by recognising a legitimate right to resist in any fight against colonial rule, narrowly directing this right against aggression

93

Ibid., 41.

Ibid., 58. These sentiments were echoed by the delegate of Algeria in the second session of the ad hoc Committee where he observed that “firstly, it should be stipulated that the Convention did not apply to national resistance movements,” see Report of the Ad Hoc Committee on the Drafting of an International Convention Against the Taking of Hostages, 4 May 1978, UN Doc. A/33/39 (1978), 25. 94

95

Third Report of the Hostages Committee (note 88), 35.

96

See First Report of the Hostages Committee, UN Doc. A/AC.188/L.5, 111.

97

See ibid., 83–84, para. 5.

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or occupation by Israel against the Palestinians.98 The myriad of resolutions sponsored by Muslim States and the OIC at the Human Rights Council and the General Assembly, as well as official instruments of the Arab League, provide interesting illustrations of this controversial interpretation of the ‘right to resist’. Further, the revised 2005 Arab Charter, which “rejects all forms of racism and Zionism” in its preamble, equally stipulates that “all forms of racism, Zionism and foreign occupation and domination constitute an impediment to human dignity and a major barrier to the exercise of the fundamental rights of peoples […]” and that “all peoples have the right to resist foreign occupation.”99 The Charter nevertheless remains silent on the right to resist oppression conducted by repressive, authoritarian and undemocratic domestic regimes.

B. Establishing the Right to Resist Within International Law Through Invoking the Sharia Principles

Sharia may provide arguments in order to affirm the right to resist in international law, which would include domestic, and not only foreign, oppression. Rebellion against a lawfully constituted Islamic government is a serious matter, and the Sharia equates such uprisings with generating civil strife (fitna); subsequent restrictive approaches towards rebellious activities led to considerable regulations on the subject, known as ahkam al-bughat.100 That said, and despite the political exigencies which prevailed during the early and medieval periods of the Muslim Empire, Sharia principles remain absolutely certain: should the ruler fail to perform his duties, Sharia 98 See, e.g., UNHRC, Human Rights Situation in Palestine and Other Occupied Arab Territories: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, 11 February 2009, UN Doc. A/HRC/10/20 (2009), 18; id., Human Rights Situation in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, 23 September 2009, UN Doc. A/HRC/12/48 (2009). 99 Art. 2, paras. 3 and 4 of the Arab Charter on Human Rights, adopted by the League of Arab States on 22 May 2004, entered into force 15 March 2008; for commentary see Javaid Rehman, International Human Rights Law (2010), 380. 100 See Sohail Hashmi, Is there an Islamic Ethic of Humanitarian Intervention?, Ethics and International Affairs 7(1993), 55, 65; Khaled El Fadl, Ahkam al-Bughat: Irregular Warfare and the Law of Rebellion in Islam, in: James Turner Johnson/John Kelsay (eds.), Cross, Crescent and the Sword (1990), 149; Etan Kohlberg, The Development of the Imami Shi’i Doctrine of Jihad, Zeitschrift der Deutschen Morgenländischen Gesellschaft 126 (1976), 68.

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insists upon due accountability. As noted by Kamali: “[i]n the event when there is a decision to depose the head of state but he refuses to step down in defiance of the decision of the community representatives, the community is entitled to resort to forcible means and uprising against the deviant ruler.”101 The argument for obedience towards political rulers is often derived from Qur’anic verse 4:59, which states that: “O those who believe […] obey God and the Messenger and those in possession of authority among you.”102 The phonetic transcription of the verse is: “Ya- ayyuha Alladhina amanu, ati‘u Allah wa- ati‘-u al-rasul wa- ’uli ‘l-’amr minkum.” Despite the presence of a considerable weight of evidence, there are jurisprudential and political disagreements related both to the historic context and the meaning of these verses, as various interpretations of the verse are put forward. Consensus prevails amongst scholars of all shades on obedience towards Allah and the Prophet Mohammad. Such obedience is enshrined in the first Islamic Kalama: kalma tayyaba: there is no God but Allah, and Prophet Mohammad, peace be upon him, is the messenger of God.103 It is therefore compulsory for all Muslims to have the full and unequivocal belief that Allah and his messenger would lead Muslims to the path of salvation and never into the path of oppression or injustice. On the other hand, commentators and jurists have disagreed in their definition and identification of uli ‘l-’amr (i.e. those in possession of authority). Hence, several scholars, such as the celebrated jurist al-Tabari, have taken the approach that the verse 4:59 refers to a range of persons in authority including politicians and political leaders (al-salatin).104 Al-Tabari is joined by jurists such as Rashid Rida. Rida takes the position that the phrase uli ‘l-’amr refers to “the people who loosen and bind” among Muslim rulers. Included in the category, according to Rida, are all those in whom the Ummah retains faith, owes allegiance and places 101

Kamali (note 56), 251.

Asma Afsaruddin, Obedience to Political Authority: An Evolutionary Concept, in: Muqtedar Khan (ed.), Islamic Democratic Discourse: Theory, Debates, and Directions (2006), 37, 37; Funk (note 54), 219. 102

See Jeffery Redding, Constitutionalizing Islam: Theory and Pakistan, Virginia Journal of International Law 44 (2003), 759, 793. 103

104 Muhammad ibn Jarir al-Tabari, Tafsir al-Tabari: al-musammá Jami’ al-bayan fi ta’wil al-Qur’an (Beirut: Dar al-Kutub al-'Ilmiyah, 1997), 4:151.

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reliance on in time of need.105 Within this broad category would be included military leaders, scholars, jurists and all others promoting the interests and the general welfare of the society. In his classification, Rida not only includes political leaders and politicians (whom he defines as umara) but distinguishes them from military leaders (defined as ru’sas’ al-jund).106 A more recent scholar, Mulana Abul A’la Mawdudi in his classical and exegetical work Tafhim al-Qur’an (Comprehension of the Qur’an) reinforces the position adopted by Rida. He views uli ‘l-’amr as “intellectual and political leaders of the community, as well as administrative officials, judges of the court, tribal chiefs and regional representatives.”107 While these arguments are plentiful in the context of the prophetic traditions and those of his immediate successors, considerable weight needs to be accorded in favour of a contextual interpretation of this verse, suggesting that within the Sharia, unconditional obedience is restricted only to Allah and his messenger. In identifying the context for the revelation of the verse, an early exegete and authoritative commentator Muqatil b. Sulayman al-Balkhi narrates the underlying incident prompting the divine ordinance.108 He advances the case that the divine ordinance was directed specifically for obedience of a military commander Khalid b. Al-Walid. In his view, the Qur’anic verse is only relevant to commanders during military expeditions whereby absolute authority is essential as part of the military strategy.109 In emphasising his point, Muqatil relates to the Qur’anic verse 4:59 with Sura 24, verses 51–52, which state that “when the believers are invited to God and His messenger so that He may Judge between them, they say “We hear and we obey”; these are the successful. For those who obey God and heed Him, they are the ones who are victorious.” Drawing a nexus between the two verses, Muqatil establishes the

105

Rashid Rida, Tafsir al-Manar (Beirut: Dar al-Kutub al-‘Ilmiyah, 1999), 5:147.

106

Ibid.

Sayyid Abul A’la Mawdudi, Towards Understanding the Qur’an, transl. and ed. Zafar Ishaq Ansari (1988), 51. 107

108 Muqatil b. Sulayman al-Balkhi, Tafsir Muqatil b. Sulayman (ed.) Abdullah Mahmud Shahata (Cairo: Mu’assisat Al-Halabi, 1969), 1:246. 109

Ibid.

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position that verse 4:59 prescribes obedience only to God and His messenger with the exclusion of everyone else including the uli’l-amr.110 Another early Islamic jurist, Abd al-Razzaq al-San’ani, records a hadith from Abu Hurayra according to which Prophet Mohammad declared on the exegesis of Qur’anic verse 4:59 that “whosoever obeys me obeys God, and whoever obeys my commander (amiri) obeys me, and whoever disobeys my commander, disobeys me.”111 Al-Bukhari, the celebrated Islamic jurist and compiler of al-Sahih ahadith, also narrates a report from Ibn’Abas in which the latter suggest the origins of this verse in the context of the Prophet Mohammad’s dispatch of a military expedition.112 In this context, a broader definition of rulers to include political leaders firmly advances the view that obedience and faithfulness is conditional upon following the path set out by Allah and his prophet. This is the stated position of jurists such as Rida who warn that if the leader or the ruler does not follow the precepts of God and Allah or resorts to oppression then such a ruler loses his right to govern.113 Emphasising the same point, Maulana Mawdudi hypothesised that obedience is contingent on the uli l-’amr’ being believers themselves and on their being obedient to God and the Prophet. In the event that a Muslim is commanded to carry out a deed that would be in contravention of God’s laws, he or she must not obey such a command.114

The jurists arguing for political accountability and right to resist oppressive regimes take solace in the Sunna of the Prophet Muhammad, whereby he is reported to have said that the “best form of jihad is to speak the truth in the face of an oppressive ruler.”115 The acceptance speech of the first Caliph after the death of the Prophet, Abubakr, reinforces the doctrine of accountability for the leader of an Islamic polity.

110

For further analysis see Afsaruddin (note 102), 38–39.

111

‘Abd al-Razzaq al San’ani, Tafsir ‘Abd al-Razzaq (Beirut, 1999), 1:464–465.

112

Al-Bukhari, Sahih Bukhari (Beirut: Dar al Fakr, n.d.), 6:376.

113

Rashid Rida, Tafsir al-Manar (Beirut: Dar al-Kutub al-‘Ilmiyah, 1999), 5:150.

114

Afsaruddin (note 102), 44.

Karima Bennoune, As-Salamu Alaykum? Humanitarian Law in Islamic Jurisprudence, Michigan Journal of International Law 15 (1994), 605, 615, footnote 55; see also, Shaheen Sardar Ali, Resurrecting Siyar through Fatwas? (Re)Constructing Islamic International Law in a Post-(Iraq) Invasion World, JCSL 14 (2009), 115, footnote 68. 115

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He noted: I have been chosen as your chief although I am better than none of you. Thus, if I do good work it is incumbent on you to extend your help and support to me; if I go wrong it is your duty to put me on the right path. Truth and righteousness are trust and untruth is a breach of trust. The weak among you are strong to me unless I give them full justice, and the strong among you are weak to me unless I receive what is due from them.116

According to Islamic scholars such as Al-Gindy, this speech establishes the concept of Shura, a term which means to ‘pick and select’ the best thing, and, subsequently, may also mean to take or give one’s opinion with due care and deliberation.117 The same sentiment is expressed by El-Fadl who notes that the precise meaning of the Shura with regard to Abu Bakr does not refer merely to a ruler but also to resistance to autocratic government by force or oppression.118 The obligation to oppose repression and fight injustice, even if such injustice is being perpetuated by Muslims themselves against unbelievers, is derived from the values of justice and egalitarianism in governance. Hashmi confirms this point in his assertion that “[t]he duty of humanitarian intervention within an Islamic ethical framework derives directly from the obligation to struggle for justice, which the Qur’an specifically asserts to be of universal applicability.”119 However, it may legitimately be argued in general that Muslims should refuse obedience to a ruler who contravenes the Qur’an and the Sunna. In fact, it would not be inaccurate to suggest that disobedience from oppression is synonymous with the notion of Jihad within Islamic legal traditions.120 Within the Sharia, the idea of morality may be applied in the relationship between the peoples and the sovereign, and more particularly, in a way to justify the concept of democratic governance in Islam. Thus according to Kamali, “the community is entitled to question, take to account, and ultimately to depose the head of State when he deviates from the accepted norms of the Sharia and

116

Akbar Shah Najeebabadi, The History of Islam, vol. 1 (2000), 276.

117

Ibid.

118

El Fadl et al. (note 50), 17.

119

Hashmi (note 100), 69.

Javaid Rehman, Islamic State Practices, International Law and the Threat from Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order (2005), 44 et seq.; Ali/Rehman (note 4), 1. 120

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fails to fulfil his duties.”121 The most vivid and unfortunately tragic example of the expression of the ‘right to resistance’ against an oppressive rule was the rebellion led by Imam Husayan. Imam Husayan, the youngest grandson of Prophet Mohammad, was brutalised and killed in the battle of Karbala following his refusal to accept the oppressive regime of Yazid b. Muawiya. The tragedy of Karbala, and the rebellion against oppression and oppressive rulers, was subsequently to symbolise the spiritual martyrdom for Shia Islam, although such expressions of rebellion remain characterised in Islamic legal and political theory.122

V. Conclusions The paper examined critically the revolutions and democratic transitions of the Arab-Muslim world, seeking to demonstrate that a genuine discourse on accountability based on Islamic law is a substantial condition of both an enduring democracy and the right to resist oppressive rulers. It suggested that the transition from a culture of absolute impunity into a culture of judicial accountability, cannot take place without taking into account both the vast literature of Islamic law on governance and the colonial legacy of the Arab-Muslim world.123 Further, it has highlighted that both the concept of accountability and the right to resist oppression may provide useful arguments in both the creation of national mechanisms based on Sharia law and the Muslim States’ cooperation in the case of international criminal proceedings. The authors have suggested that the revolutions represented a unique opportunity to establish democratic patterns of governance and to end the culture of impunity which has been rooted in the Arabo-Muslim world. Yet, the absence of a genuine debate on accountability of the Muslim States’ leaders has been the principle inhibiting factor in the establishment and functioning of this democracy at an institutional level. In their modern incarnation, Muslim States have been vocal in asserting a right to rebel against oppressive regimes, as was witnessed during the decolonisation phase 121

Kamali (note 56), 196.

See Moojan Momen, An Introduction to Shi’i Islam: The History and Doctrines of Twelver Shi’ism (1985), 25. 122

123

See generally Esposito (note 12), 78 et seq.

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in the latter half of the twentieth century. However, the right to resist oppression and dictatorship has been interpreted as referring only to colonial, and most likely Western, rulers. By analysing the relevant Islamic literature, the authors have observed that Islamic law suggests quite the opposite, demonstrating that Sharia is adamant about rulers’ accountability and the right to resist oppression. The practices of Prophet Muhammad and the rightly guided Caliphs fully demonstrate the absence of any notion of immunities for the ruler or Head of State, whereas a ‘right to resistance’ and ‘right to rebel’ for the people in a Muslim State against the person of Khalifa is visible in many Islamic schools of thought. The authors have submitted that the culture of impunity of the Islamic and Muslim-majority States has been another substantial impediment to establishing effective accountability mechanisms. In this respect, they took the view, nevertheless, that this culture of impunity is by no means an inherent characteristic of Muslim majority States, nor of the Sharia, and that democracy is fully embraced by the Islamic religion. They presented considerable evidence of the Sharia ordinances on the political accountability of Heads of Muslim States, suggesting that the invocation and reliance upon this evidence may increase – and accelerate – the process of democratisation in the Arab world. Finally and most significantly, due recognition accorded to the Sharia principles on accountability would also be positive step in eradicating the ambiguities prevalent in contemporary international law on the subject of immunities for Heads of States for violations of fundamental human rights. Making justice and accountability mechanisms, along with democratic institutions, a top-priority of these States’ political agenda is the only way for the Arab world to increase the credibility in the universality of human rights. The application of the Sharia principles can prove extremely useful in this respect.

FOCUS DISASTER PREPAREDNESS AND RESPONSE

The Future of International Disaster Response Law DAVID FISHER(

ABSTRACT: Recent years have been crowded with massive disasters that drew global efforts to save lives and mitigate tragedy. However, international response operations have never been so complex. Relief efforts are regularly hampered by unnecessary restrictions, delays, costs and barriers on the one hand, and gaps in quality, coordination, accountability and respect for domestic authorities and beneficiaries, on the other. This would seem to be a situation tailormade for some clear and balanced rules, and the international community has indeed been very busy adopting a large number of international instruments of various kinds. However, those rules remain mainly unknown to disaster managers and legal experts alike. This article examines the rationale for regulatory frameworks in this area and, based on current trends, speculates about potential future developments at the national and international levels, including the possibility of a future flagship treaty. It argues that, for all its many faults and gaps, there is already a field of ‘international disaster response law’ and it will likely rise from its current obscurity to play a more important part in disaster response in the future. KEYWORDS: Natural disasters, international disaster response law, humanitarian assistance, humanitarian principles, disaster cooperation, humanitarian access, responsibility to protect

I. Introduction In the small but growing academic literature on international disaster response law (IDRL), a common theme is starting to emerge: amazement. Most commentators are amazed to discover that while the social and economic impacts of disasters continue to rise and the international systems for responding to them become ever more elaborate, the applicable international legal framework remains so weak and obscure.1 Global Coordinator of the International Federation of Red Cross and Red Crescent Societies’ (IFRC) Disaster Law Programme. The views expressed in this article are the author’s and do not necessarily reflect those of the IFRC or its member National Societies. (

1 See, e.g., Marie-Jose Domestici-Met, Humanitarian Action – A Scope for the Responsibility to Protect? Part I: Humanitarian Assistance Looking for a Legal Regime Allowing Its Delivery to Those in Need under Any Circumstances, Goettingen Journal of International Law 1 (2009), 397, 397; Bosko

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Prior reports2 have traced the current extent of international law-making in this area, noting a handful of global multilateral treaties and a multiplicity of (sometimes overlapping and inconsistent) regional and bilateral agreements on IDRL. They have also pointed out that, in practice, ‘soft law’ guidelines, codes, standards and standard operating procedures appear to be the primary international tools guiding most international relief operations. Indeed, when asked to name the most important international standards for such operations, disaster management professionals both at the national and international levels invariably point to ‘soft’ instruments and are generally completely unaware of existing treaties in the field.3 Is there anything wrong with this picture? In an age where multilateral treaties regulate everything from the promotion of chocolate consumption,4 to the rescue of misplaced astronauts5 and the preservation of folk dances,6 should we expect further international developments when it comes to IDRL? Is this a question that it is better regulated domestically – or perhaps not at all, in light of the abundant goodwill generally involved on all sides?

Jakovljevic, Some Reflections on International Disaster Relief Law, International Civil Defence Journal 16 (2006), 32, 33; Alysa Rosdahl, International Disaster Response Law in Central America and Europe: Developing a More Effective Framework for Central America, Transnational Law and Contemporary Problems 16 (2007), 705, 705; Alexandra de Urioste, When Will Help Be on the Way? The Status of International Disaster Response Law, Tulane Journal of International and Comparative Law 15 (2006), 181, 181; Michael Hoffman, Towards an International Disaster Response Law, in: International Federation of Red Cross and Red Crescent Societies (IFRC), World Disasters Report: Focus on Public Health (2000), 145. 2 See, e.g., David Fisher, Law and Legal Issues in International Disaster Response (2007), available at: http://www.ifrc.org/PageFiles/94495/113600-idrl-deskstudy-en.pdf (accessed on 28 November 2012); Andrea de Guttry, Surveying the Law, in: Andrea De Guttry/Marco Gestri/Gabriella Venturini (eds.), International Disaster Response Law 38; International Law Commission (ILC), Protection of Persons in the Event of Disasters: Memorandum by the Secretariat, UN Doc. A/CN.4/590 (2007); Horst Fischer, International Disaster Response Law Treaties: Trends, Patterns and Lacunae, in: Victoria Bannon (ed.), International Disaster Response Laws, Principles and Practice: Reflections, Prospects and Challenges (2003), 24. 3 This conclusion is primarily based on the author’s experience leading dozens of regional and global training sessions on international disaster response law (IDRL) for disaster management and humanitarian professionals since 2005. 4

See International Cocoa Agreement, UN Doc. TD/COCOA.10/3 (2010), Art. 37.

See Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, GA Res. 2345 (XXII) of 19 December 1967. 5

6 See Convention for the Safeguarding of the Intangible Cultural Heritage, UN Doc. MISC/2003/ CLT/CH/14 (2003).

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The International Federation of Red Cross and Red Crescent Societies (IFRC) has been actively engaged in researching and consulting on these questions since 2001. In that time, it has worked at the international level, supporting the creation of a new soft law standard7 and the more active use of existing treaties, and also at the domestic level, supporting several dozen States in examining their own rules and procedures for managing external disaster assistance. While this article represents the author’s conclusions and opinions only, it will draw on the IFRC’s experience as well as that of other partners to speculate as to what the future may hold for IDRL. In particular, it will look to key problem areas that might serve as a rationale for the development of stronger regulatory frameworks for international disaster response. It will then examine the likelihood of such frameworks developing at the domestic, bilateral, regional and global levels, in light of progress thus far with existing instruments. Finally, bearing in mind that, since 2007, the United Nations’ International Law Commission (ILC) has been working on “draft articles on the protection of persons in the event of disasters,”8 it will speculate as to the possibility of a future flagship treaty.

II. Is There Already Such a Thing as IDRL? Before unveiling this article’s crystal ball, however, this section will briefly take stock of the subject of its fortune telling. In particular, it will address the assumption in the title that there is such a thing as IDRL. As noted above, most experienced disaster managers are not aware of such a field of international law, and the same is probably true of many international lawyers. Does it even exist? When the IFRC first began its work on IDRL in 2001, it found both the term and the field of law still mainly undefined.9 Borrowing from the approach of a number of key international instruments, the IFRC decided to adopt a fairly expansive definition of the term ‘international disaster response law’, using it to apply to rules concerning This resulted in the negotiation of the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance, see infra, IV. 7

8

See ILC, Report on the work of its fifty-ninth session, UN Doc. A/62/10 (2007), para. 375.

See Hoffman (note 1). This is despite a significant number of scholarly contributions produced in 1970s–1980s on the topic. See Fisher (note 2), 15 and endnote 20. 9

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international response both in natural and (non-conflict) man-made disasters, extending it to immediate response and early recovery, including both ‘hard’ and ‘soft’ normative instruments, and even bringing both domestic and international regulatory instruments into its purview.10 At the international level, applying that definition yields quite a few instruments, as mentioned above, though no flagship global treaties with comprehensive reach. Instead, at the global level, one can cite a few treaties, such as the Food Assistance Convention of 2012, the Framework Convention on Civil Defence Assistance of 2000 (Framework Convention), the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations of 1998 (Tampere Convention) and the Convention on Assistance in the Event of a Nuclear Disaster or Radiological Emergency of 1986 (Nuclear Assistance Convention), that are specifically addressed to disaster response. There are also a number of sectoral treaties in areas such as civil aviation, maritime traffic, customs, oil pollution, and security of humanitarian personnel that likewise include specific provisions on disaster relief.11 There is a much greater number of relevant treaties and agreements at the regional level – including both disaster-specific treaties and those with only some relevant provisions. Some of them suffer from overlapping jurisdictions,12 as in Central Asia, whose five States are signatories (in various constellations) to eight regional treaties specific to cross-border emergency response.13 There are also well over 100 bilateral treaties and agreements falling under this definition.14 Fisher (note 2), 22–24. For some of the early analysis associated with the IFRC’s approach, see Victoria Bannon (ed.), International Disaster Response Laws, Principles and Practice: Reflections, Prospects and Challenges (2003). 10

11

Fisher (note 2), 33–61.

12

Ibid., 62–79.

United Nations Office for the Coordination of Humanitarian Affairs (OCHA), International Emergency Response Agreements Signed by Central Asian Countries (2008). 13

14 The exact number is not known, since these treaties are rarely centrally deposited and collecting them individually from concerned States has proven surprisingly difficult over time. The UN Office of Legal Affairs identified ‘over 150’ in its background memorandum for the ILC; see OLA and de Guttry cites ‘over 200’. A substantial number are catalogued on the IFRC’s online Disaster Law Database, available via: http://www.ifrc.org/dl (accessed on 30 November 2012). However, the total is probably much higher, if one considers, for example, the United States alone has well over 100 status of forces agreements with other States, many of which may be applicable to military assistance in disasters. Fisher (note 2), 80.

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In the soft-law domain, there is likewise a proliferation of resolutions, declarations, codes, guidelines and procedures of various kinds. Some of these have faded into obscurity, but others – such as UN General Assembly Resolution 46/182 of 1991, the Oslo Guidelines on the Use of Military and Civil Defence Assets in Disaster Relief as revised in 2007 and the Code of Conduct of the Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Response of 1994, to name a few – are cited regularly. Notwithstanding this rather large body of instruments, some experts remain hesitant to sanction the idea that IDRL can be called a domain of international law, apparently due to the absence of leading global treaties.15 In the opinion of this author, it is possible to reach this position only by discounting the large mass of regional and bilateral treaties specifically on point, the justification for which is unclear.16 Nevertheless, the cited authors are surely right to note that existing IDRL is ‘fragmented and incomplete’.17 For example, parties to the Tampere Convention are under specific obligations to reduce entry barriers to telecommunications equipment and personnel responding to a disaster – but their duties with regard to other relief personnel, goods and equipment remain much less defined. Likewise, parties to the Nuclear Assistance Convention have specific obligations with regard to facilitating assistance only for nuclear or radiological incidents. Many IDRL treaties (global and regional) suffer from a low ratification rate and the existing network of such treaties leaves substantial geographSee, e.g., Arnold Pronto, Consideration of the Protection of Persons in the Event of Disasters by the International Law Commission, International Law Students Association Journal of International and Comparative Law 15 (2009), 449, 454. Pronto asserts that “international disaster relief law is not (yet) a distinct field of law, in the sense that one can somewhat safely speak of ‘international humanitarian law’ as being a distinct field of international law. It is, rather, a collection of disparate rules covering a broad range of issues […]”. 15

16 Compare Christophe Schreuer, Sources of International Law: Scope and Application, Emirates Lecture Series 28, The Emirates Center for Strategic Studies and Research (2000), 5, available at: http:// www.univie.ac.at/intlaw/wordpress/pdf/59_sources.pdf (accessed on 20 October 2012). Schreuer notes that “[c]ertain areas of international law are primarily regulated through a series of bilateral treaties. Prime examples are extradition treaties, air transport agreements, and bilateral investment treaties”. 17 David Fidler, Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law?, Melbourne Journal of International Law 6 (2005), 458, 465. It may be noted that Fidler cites to an IFRC publication, the IFRC World Disaster Report (2000), in support of his position. However, that chapter was prepared prior to the IFRC’s research analysing the many existing regional and bilateral treaties.

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ical gaps in coverage.18 For example, the Framework Convention and the specific annex on disaster relief in the Kyoto Convention for the Harmonization and Simplification of Customs Procedures as amended in 1999 have only 14 and 15 State parties, respectively.19 Moreover, the vast majority of IDRL treaties address only direct State-to-State assistance, whereas a large and growing amount of international assistance is channelled through humanitarian organisations, including UN agencies, Non-Governmental Organisations (NGOs) and the International Red Cross and Red Crescent Movement. Over 60 % of international financing for humanitarian response provided by governmental donors was channelled through these three sources in the years between 2006 and 2009.20 Private funds, which made up a quarter of all humanitarian financing over the last decade, also went overwhelmingly through these three channels – particularly NGOs.21 III. Do We Need More IDRL? Accordingly, regardless whether one is a believer in IDRL as an existing domain of international law, it is difficult to argue with the conclusion that the ensemble of existing instruments is quite weak as compared to those in other fields of law. Is this a problem? Is there a need for firm international rules in this area? Some commentators have concluded that there is not. For example, David Fidler has noted that, as a policy matter, the absence of multilateral treaties – ‘hard law’ – has not equated to an absence of capabilities within IGOs and NGOs. The mobilisation of IGO and NGO assistance in the wake of the Indian Ocean tsunami illustrates that the lack of international law has not prevented significant and sophisticated intergovernmental and non-governmental disaster relief capacities from developing.22 18

See Fisher (note 2), 85.

World Customs Organization, International Convention on the Simplification and Harmonization of Customs procedures, Position as Regards Ratifications and Accessions (30 June 2012), available at: http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/conventions/pf_revised_kyoto_ conv/instruments.aspx (accessed on 30 November 2012). 19

Development Initiatives, Global Humanitarian Assistance Report 2011 (2012), 37, available at: http://www.globalhumanitarianassistance.org/report/gha-report-2011 (accessed on 30 November 2012). 20

21 Development Initiatives, Private Funding: An Emerging Trend in Humanitarian Donorship (2012), 2–3, available at: http://www.globalhumanitarianassistance.org/wp-content/uploads/2012/04/ Private-funding-an-emerging-trend.pdf (accessed on 30 November 2012). 22

Fidler (note 17), 462.

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Fidler thus attributes the absence of a comprehensive ‘hard law’ base for IDRL not to negligence but to a lack of need, combined with political factors – notably a surging emphasis on the notion of sovereignty and a perception that critical state interests are not centrally implicated in international disaster response.23 He further points out that a detailed set of international rules could prove difficult to agree upon and inflexible in practice. It may be added to this argument that an elaborate and global mechanism for disaster coordination has also grown up in the United Nations over the last twenty years, without the assistance of a treaty base. States have provided their direction and consent for this system through (non-binding) resolutions of the UN Economic and Social Council and General Assembly, building in particular on the keystone ‘Guiding Principles’ of General Assembly Resolution 46/182 of 1991. That resolution set out the role of the Emergency Relief Coordinator, the Office for the Coordination of Humanitarian Affairs (as it is now known), as well as a policy-making ‘Inter-Agency Standing Committee’ of relevant UN agencies with NGO networks and representatives of the International Red Cross and Red Crescent Movement as invitees.

A. Common Regulatory Problems

On the other hand, whereas Fidler saw the tsunami response as a sign of success of the existing humanitarian system, others saw the situation differently. In July 2006, the Tsunami Evaluation Coalition Report (TEC Report), a major multi-agency review of the tsunami operation in all of the affected countries, concluded that much good had indeed been accomplished, but that the lack of clear regulatory frameworks had been a major problem. It complained of “ill-advised, confusing and sometimes bureaucratic official policies and procedures” at the domestic level.24 A series of regulatory studies performed in the same period by the IFRC in Sri Lanka, Indonesia and Thailand likewise found significant bureaucratic problems, including sometimes

23

Ibid., 460 et seq.

See John Telford/John Cosgrave, Joint Evaluation of the International Response to the Indian Ocean Tsunami: Synthesis Report (2006), 17, available at: http://www.alnap.org/pool/files/889.pdf (accessed on 30 November 2012). 24

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months-long delays in customs clearance, imposition of duties, tariffs and taxes, difficulties in obtaining legal registration, and obtaining visas, among others.25 The TEC Report further noted the overwhelming proliferation of outside actors (for example, 200 international NGOs were registered in Aceh alone), which, untethered by the need to participate in a collective appeal process in light of the abundant private funding, felt little compulsion to participate in the United Nations’ coordination mechanisms or those of the affected State governments. The report concluded that their unrestrained numbers resulted not only in duplication and massive waste, but also inappropriate types of aid, ranging from expired food and medications to Viagra and winter coats.26 When a disaster of similar magnitude struck Haiti about five years later, an even greater proliferation of outside actors (including over 500 foreign NGOs among many other actors) led to a similar set of problems related to inappropriate aid, duplication and poor quality assistance.27 These ranged from the arrival of well-wishers, who were so unprepared that they ended up themselves seeking help in obtaining food and shelter, to the shipment of used clothes, inappropriate food, and expired medications, along with more exotic items, such as solar-powered talking bibles.28 Since the Haiti disaster initially crippled many governmental services, there were essentially no legal barriers to entry and operation in the beginning days of the operation.29 As they regained their feet, however, and despite authorities’ attempts to employ flexible and reduced procedures, the media reported significant delays in the 25 See Victoria Bannon, Legal issues from the international response to the tsunami in Indonesia (2006), available at: http://www.ifrc.org/PageFiles/93712/indonesia-cs.pdf (accessed on 30 November 2012); id., Legal issues from the international response to the tsunami in Sri Lanka (2006), available at: http://www.ifrc.org/PageFiles/93722/report-srilanka.pdf (accessed on 30 November 2012); id., Legal issues from the international response to the tsunami in Thailand (2006), available at: http://www.ifrc. org/PageFiles/93720/report-thailand.pdf (accessed on 30 November 2012). 26

Telford/Cosgrave (note 24), at 52–57; see also Fisher (note 2), 137.

IFRC, IDRL in Haiti: A Study on the Legal Framework for the Facilitation and Regulation of International Disaster Response in Haiti (2012), available at: http://www.ifrc.org/PageFiles/93550/ 1213600-IDRL_Haiti-EN-LR%20final.pdf (accessed on 30 November 2012). 27

28

Ibid., 45.

World Customs Organization, Haiti: Rather than give up, Customs must forge ahead!, WCO News 62 (2010), 48, available at: http://wcoomdpublications.org/downloadable/download/sample/ sample_id/91/ (accessed on 30 November 2012). The WCO reports that the earthquake had killed several customs officials, destroyed the customs headquarters building and destroyed port facilities. 29

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clearance of relief goods and equipment.30 Moreover, although the UN deployed its coordination mechanisms, including the cluster system, they lacked authority to compel compliance and could not prevent significant duplications and inconsistencies in the aid provided.31 In 2011, a similarly catastrophic event struck Japan, in the form of the ‘Great East Japan Earthquake’ which caused a massive tsunami, in turn prompting a crisis at the Fukushima nuclear plant, which turned out to be the world’s most serious radiological incident since Chernobyl. Japan sought to be quite selective in accepting outside assistance, calling in the early days for outside actors not to send goods or teams too quickly.32 Moreover, there were some media complaints of ‘red tape’, including for foreign rescue teams denied access or unable to bypass quarantine rules for rescue dogs, restrictions on the work of foreign doctors, and delays in permissions for logistics companies to truck foreign and domestic relief items to the affected area.33 Nevertheless, according to a lessons-learned report prepared by the Government of Japan and the World Bank, “[the Great East Japan Earthquake] drew an unprecedented level of assistance from 163 countries and 43 international organizations.”34 Within the Japanese governance system for disaster management, local governments bear a substantial part of the responsibility, and this report found that they struggled to oversee the numerous outside (and domestic) actors: “[t]he weakness of coordina30

IFRC (note 27), at 35.

31

Ibid., at 46.

OCHA, Japan Earthquake and Tsunami Situation Report No. 7 (2011), available at: http://one healthorganisation.org/wp-content/uploads/2012/08/tsunami_disaster_brochure_print.pdf (accessed on 30 November 2012). See also Al-Jazeera, Japan seeks limited foreign aid, 12 March 2011, available at: http://www.aljazeera.com/news/asia-pacific/2011/03/201131120491195304.html (accessed 12 October 2012). 32

Hannah Beech, Is Japan’s Bureaucracy Strangling Humanitarian Aid?, 22 March 2011, available at: http://www.time.com/time/world/article/0,8599,2060773,00.html (accessed on 30 November 2012); BBC News, Japan earthquake: UK rescue team ‘foiled by red tape’, 16 March 2011, available at: http:// www.bbc.co.uk/news/uk-12756366 (accessed on 30 November 2012); ABC News, Foreign rescue teams blocked by Japanese bureaucracy, 13 March 2011, available at: http://abcnews.go.com/International/ japanese-bureaucracy-delays-foreign-search-rescue-teams/story?id=13126904#.UJNnp2e89nA (accessed on 30 November 2012). 33

World Bank, The Great Japan Earthquake, Learning from Megadisasters: Knowledge Notes, Executive Summary (2012), 10. See also Report of Japanese Government to the IAEA Ministerial Conference on Nuclear Safety: The Accident at TEPCO’s Fukushima Nuclear Power Stations, 7 June 2011, 37, available at: http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_1108.pdf (accessed on 5 October 2012). 34

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tion observed on the ground during the [Great East Japan Earthquake] demonstrates that coordination mechanisms should be established through advance agreements and clear definitions of responsibility.”35 These three disasters were unique in many ways – both in the historic intensity of the damage caused and in the unprecedented number and variety of international actors seeking to be involved. However, the types of regulatory problems they produced were not. A series of several dozen country studies carried out by the IFRC between 2001 and 2007, as well as consultations with, and a survey of, governments and humanitarian actors, found that many similar problems had arisen in other disasters.36 These included blockages in the entry of relief goods and equipment (particularly food, medications, vehicles, and telecommunications equipment) and relief personnel, as well as registration, taxation and other issues for organisations once in the country. They also included problems with coordination, poor quality of relief, sending inappropriate relief items, and failing to respect the role of local authorities and to consult with their own beneficiaries about their plans. These problems are all naturally intensified when there is a large surge of outside actors (which occurs much more frequently than in the past), though not all disasters produce such a surge, as the scarce response to many slow-onset disasters has demonstrated.37

B. Fear of the ‘Tsunami Effect’ and its Impact on International Cooperation

These experiences have not passed unnoticed by other disaster-affected States. In 2012, the Active Learning Network for Accountability and Performance in Humanitarian Action (ALNAP) reported that many of the national disaster management officials it had interviewed for a report on the ‘State of the Humanitarian System’ had indicated a fear of a ‘post-tsunami invasion’ of external actors.38 Similarly, a recent study commissioned by the European Community Humanitarian Office (ECHO) cited government concerns about being overrun and undermined by outside actors as 35

World Bank (note 34), 10.

36

The detailed results of this research are set out in Fisher (note 2).

See Active Learning Network for Accountability and Performance in Humanitarian Action (ALNAP), State of the International Humanitarian System (2011), 47, available at: http://www.alnap. org/pool/files/alnap-sohs-final.pdf (accessed on 25 October 2012); Fisher (note 2), 133 et seq. 37

38

See, e.g., ALNAP (note 37), 70.

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among the key reasons for limiting humanitarian access.39 This fear of being overrun has accentuated an already visible trend among affected States to be more assertive of their sovereignty and to seek greater control over international relief operations.40 It has been argued in this respect that “[d]eveloping countries, in particular, are suspicious of interventions mobilized for so-called humanitarian purposes,”41 but it is also instructive to note how very selective richer countries have been in accepting offers of international relief in recent disasters – even when their domestic resources were clearly challenged, as after Hurricane Katrina in 2005 and the Deepwater Horizon oil spill in 2010 in the United States,42 the 2009 L’Aquila earthquake in Italy,43 and the 2011 crisis in Japan (as described above). Put simply, governments that can limit outside assistance are increasingly tempted to do so because of fear of loss of control and concern for quality problems in external aid (in addition to a reluctance to appear weak). Such caution can be positive, inasmuch as experience has shown that a completely unmonitored international response can do more harm than good.44 However, excessive caution (and political self-protection) may lead governments to turn away aid that is urgently needed to address humanitarian

39 Julia Streets/Urban Reichhold/Elias Sagmeister, Evaluation and review of humanitarian access strategies in DG ECHO funded interventions (2012), 24–25, available at: http://www.alnap.org/pool/ files/gppi-access-report.pdf (accessed on 20 October 2012).

Randolph C. Kent, Planning from the Future: An Emerging Agenda, International Review of the Red Cross 93 (2011), 939, 952. 40

41

Arjun Katoch, The Responders’ Cauldron, Journal of International Affairs 59 (2006), 153, 156.

Jean Baker McNeill/James Jay Carafano/Matt A. Mayer/Richard Weitz, Accepting Disaster Relief from Other Nations: Lessons from Katrina and the Gulf Oil Spill, Heritage Foundation Backgrounder (2011), available at: http://www.heritage.org/research/reports/2011/02/accepting-disaster-relief-fromother-nations-lessons-from-katrina-and-the-gulf-oil-spill (accessed on 30 November 2012); Anne C. Richard, Role Reversal: Officers of Help from Other Countries in Response to Hurricane Katrina (2006); Elisabeth Ferris/Daniel Petz, The Year that Shook the Rich: A Review of Natural Disasters in 2011 (2012), 42. 42

See Remarks of Agostino Miozzo, General Director of the Voluntary Service and International Relations Office of the Italian Civil Protection Department during the European Union’s Third European Civil Protection Forum, organised in Brussels from 29 October–1 November, 2009. A videotape of his speech is available on the European Commission’s website at: http://webcast.ec.europa.eu/eutv/ portal/archive.html?viewConference=8113&catId=8112 (accessed on 30 November 2012). 43

Fisher (note 2), 137. Fisher notes that “[u]nprepared international actors can also become an affirmative drain on the very necessities needed by affected persons. For instance, after the 2003 earthquake in Bam, Iran, the Iranian Red Crescent had to provide food and tents to some international personnel”. 44

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needs, or to control it so tightly that humanitarian organisations cannot abide by internationally-accepted humanitarian principles.

C. Access Denial at the Extreme

An extreme version of this last scenario arose in 2008, when Cyclone Nargis struck Myanmar. Notwithstanding strong evidence of massive humanitarian need, the Myanmar authorities strictly restricted the entry of external relief providers for several months following the storm.45 In response, French Foreign Minister Bernard Kouchner proposed that the UN Security Council should authorise the forcible delivery of assistance over the government’s objection, pursuant to the concept of the ‘responsibility to protect’.46 As accepted by the UN General Assembly47 and Security Council,48 that concept, also known colloquially as ‘R2P’, provides that States have a responsibility to protect their citizens from genocide, war crimes, ethnic cleansing and crimes against humanity; if they fail to do so, the international community may intervene in various ways – including by military means, if the Security Council authorises it.49 Many opponents, and even some high-profile proponents, of R2P rejected Kouchner’s suggestion, arguing that its application in a natural disaster setting would confirm fears that R2P was merely a ‘slippery slope’ to interventionism and ‘regime change’ agendas.50 UN

45 See Asia-Pacific Centre for the Responsibility to Protect, Cyclone Nargis and the Responsibility to Protect: Myanmar/Burma Briefing No. 2 (2008), available at: http://www.r2pasiapacific.org/ documents/Burma_Brief2.pdf (accessed on 11 October 2012); IFRC, After the Storm: Recovery, Resilience Reinforced: Final Evaluation of the Cyclone Nargis Operation in Myanmar, 2008–2011, available at: http://reliefweb.int/sites/reliefweb.int/files/resources/MMCycloneNargis11.pdf (accessed on 11 October 2012). 46

Ibid., 2.

47

2005 World Summit Outcome, GA Res. 60/1 of 24 October 2005, paras. 138 et seq.

48

SC Res. 1674 of 28 April 2006, para. 4.

A broader concept of the responsibility to protect, not necessarily dependent on the Security Council, was urged by some of its earlier proponents. See Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001). 49

50 See Asia-Pacific Centre for the Responsibility to Protect (note 45), 9; Jarrod Wong, Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism, Tulane Law Review 84 (2009) 219, 221 et seq.

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Secretary-General Ban Ki-Moon subsequently endorsed a version of the latter argument.51 While Kouchner’s suggestion did draw sympathetic echoes from some other governments at the time,52 in light of the opposition of many others, the issue was not tabled at the Security Council and it was eventually negotiation through the Association of Southeast Asian Nations (ASEAN) that provided a face-saving way for the Myanmar authorities to change their position and allow greater international access to affected persons.53 A number of commentators have nevertheless subsequently insisted that the denial of outside aid in the event of a natural disaster could amount to a crime against humanity, and therefore come within the scope of R2P, in the right circumstances.54 As a matter of legal reasoning, it is difficult to quibble with this assertion. However, in expressing his opposition to applying R2P to disaster contexts, Edward Luck, then-Special Advisor to the UN Secretary General on the Responsibility to Protect, argued that “the ‘responsibility to protect’ is really a political concept, not a legal one.”55 Whether or not this is true, as a political matter, it is difficult to imagine circumstances, in which the Security Council (with its current permanent 51 UN Secretary-General, Implementing the Responsibility to Protect, 12 January 2009, UN Doc. A/63/677 (2009), para. 10 (b), arguing that “[t]he responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. To try to extend it to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility”.

Jürgen Haacke, Myanmar, the Responsibility to Protect and the Need for Practical Assistance, Global Responsibility to Protect 1 (2009), 156, 164–166. 52

53 Julie Belanger/Richard Horsey, Negotiating Humanitarian Access to Cyclone-Affected Areas of Myanmar: A Review, Humanitarian Exchange No. 41 (2008), 2–5, available at: http://www.odihpn. org/humanitarian-exchange-magazine/issue-41/negotiating-humanitarian-access-to-cyclone-affectedareas-of-myanmar-a-review (accessed on 20 October 2012). 54 See, e.g., Gareth Evans, The Responsibility to Protect: Meeting the Challenges, Lecture to the 10th Asia Pacific Programme for Senior Military Officers on 5 August 2008, available at: http://www. gevans.org/speeches/speech302.html (accessed on 10 October 2012); Wong (note 50); Rebecca Barber, The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study, Journal of Conflict and Security Law 14 (2009), 3; Stuart Ford, Is the failure to respond appropriately to a natural disaster a crime against humanity? The responsibility to protect and individual criminal responsibility in the aftermath of Cyclone Nargis, Denver Journal of International Law and Policy 38 (2010), 227; Francesca Russo, Disasters Through the Lens of International Criminal Law, in: De Guttry/Marco Gestri/Gabriella Venturini (eds.), International Disaster Response Law (2012), 441. 55 Edward Luck, Environmental Emergencies and the Responsibility to Protect: A Bridge Too Far?, American Society of International Law Proceedings 103 (2009), 32, 33.

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five members) would countenance the use of force to support humanitarian assistance in a situation of natural disaster arising in the near future. Accordingly, even if its technical requirements are met, R2P would be a rather empty threat.56 Of course, it has been pointed out that military force is only one among a wide array of options that the R2P doctrine is intended to promote.57 The reality, however, is that the threat of military intervention is closely associated with this concept in the minds of many, in particular, representatives of developing countries.58 It is likely for this reason that the ILC has, despite some internal dissension, thus far steered away from explicitly integrating the notion of R2P into its current project on “protection of persons in the event of disasters.”59

D. Principles and Quality

Aside from such extreme cases, humanitarian organisations are also increasingly concerned about finding themselves on the losing end of more selective restrictions and controls. Part of this concern is connected to humanitarian principles. According to UN General Assembly Resolution 46/182, “[h]umanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality.”60 No distinction is made here on the basis of the provider. Traditionally, however, humanitarian organisations have particularly emphasised their adherence to these 56

Sara Davies, Natural Disasters and the Responsibility to Protect, GYIL 55 (2012), 149, 164.

57

Wong (note 50), 258.

Roberta Cohen, The Burma Cyclone and the Responsibility to Protect, Global Responsibility to Protect 1 (2009), 253, 254. Cohen notes that, “to allay fears that R2P means military intervention, its proponents sometimes go to the other extreme and make its application sound almost harmless, which also is misleading. At present, the proponents of R2P, including the UN Special Adviser, are struggling to define the concept in a way that promotes robust collective action but at the same time packages it in a non-threatening way so that it will be internationally acceptable and encourage R2P’s application. This could turn out to be mission impossible.” Cohen goes on to argue that the best approach would be to embrace the ‘teeth’ inherent in the concept, reserving the threat of force to make for more effective negotiations, ibid., 255. 58

59 See Report of the International Law Commission to the UN Sixth Committee, UN Doc. A/66/ 10 (2012), para. 286. This approach seems to have garnered the approval of most States commenting on the issue in response to the ILC’s reports at the Sixth Committee. See also Davies (note 56), 158. 60 Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, UN GA Res. 46/182 (1991), Annex, Guiding Principles, para. 2.

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principles, as well as one that is specific to them, the principle of independence,61 as a means of making their presence and work in crises acceptable to all parties. This is exemplified in the Code of Conduct of the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief.62 However, these principles and their underlying rationale are under increasing challenge. For example, in many disaster settings, independence is a major issue, particularly when governments insist that all outside aid must be simply handed over to governmental entities for distribution63 or when they provide ‘official’ beneficiary lists that humanitarians are expected to follow. Internally, consensus among humanitarian organisations on the meaning and necessity of certain humanitarian principles – particularly neutrality – is also under strain.64 Some argue that it is simply impossible to disentangle humanitarian operations from politics and that humanitarian organisations should therefore embrace the notion that the agenda of alleviating suffering is also political.65 Going a step farther, a number of relief organisations have adopted a ‘solidarist’ approach (“express[ing] solidarity with those who suffer, taking, if necessary, a political stance on such matters as human rights abuses”).66

61 As set out in the Code of Conduct of the International Red Cross and Red Crescent Movement and Non-governmental Organizations in Disaster Relief (1994), available at: http://www.ifrc.org/ Docs/idrl/I1012EN.pdf (accessed on 5 October 2012), independence is described as acting independently of governments, particularly donor governments. 62

Ibid., para. 4.

See, e.g., Daniel Costa, Legal Issues in the International Response to the 2007 Floods in Bolivia (2008), 24. Costa describes a case in Bolivia where this was threatened. 63

For its part, the International Red Cross and Red Crescent Movement continues to stand by these principles, including neutrality. See International Conference of the Red Cross and Red Crescent, Statutes of the International Red Cross and Red Crescent Movement, Preamble (as amended in 2006), available at: http://www.ifrc.org/Docs/idrl/I290EN.pdf (accessed on 5 October 2012). 64

Sarah Collinson/Samir Elhawary, Humanitarian Space: A Review of Trends and Issues, Humanitarian Policy Group Report 32 (2012), 3, available at: http://www.odi.org.uk/sites/odi.org.uk/files/odiassets/publications-opinion-files/7643.pdf (accessed on 15 December 2012) 65

See Feinstein International Famine Center, Ambiguity and Change: Humanitarian NGOs Prepare for the Future – A report prepared for World Vision, CARE, Save US, Mercy Corps, Oxfam USA, Oxfam GB & Catholic Relief Services (2004), 54, available at: https://wikis.uit.tufts.edu/ confluence/download/attachments/14553441/Ambiguity+and+Change--Humanitarian+NGOs+ Prepare+for+the+Future.pdf?version=1 (accessed on 25 September 2012). 66

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With a few exceptions,67 existing IDRL treaties generally do not refer to humanitarian principles.68 The question arises whether, going forward, humanitarian agencies’ access in disaster settings will continue to be guaranteed on the basis of humanitarian principles and, if so, which ones. For some observers, adherence to humanitarian principles should not, by itself, be seen as sufficient to guarantee a place on the starting line. Over the last ten years, a number of voices have called for an international system of accreditation of relief agencies in order to separate those who operate competently from those who do not.69 The idea was first raised to prominent attention by an inter-agency evaluation to international assistance to Rwanda in 1994 and was reiterated as a recommendation of the TEC Report in 2006.70 In 2003, several NGOs formed the Humanitarian Accountability Partnership International as a certification scheme.71 However, to date, that scheme has managed to certify only 13 agencies72 and it has not suggested that this certification should be used as basis for granting humanitarian access. A number of other groups have also experimented with various types of certification,73 but, to date, there is no generally-accepted global scheme. The idea of creating an accreditation scheme is once again circulating in the humanitarian community, propelled in particular by experiences such as the Haiti earthquake and a desire to find a workable solution to the issue of proliferating disaster responders.74 However, critics continue to raise questions about the feasibility of 67 See African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 22 October 2009, Art. 5 (8); Food Assistance Convention, 25 April 2012, Preamble, available at: http://treaties.un.org/doc/source/signature/2012/CTC_XIX-48.pdf (accessed on 20 October 2012). 68

UN Doc. A/CN.4/590 (note 2), 14–18.

69

Fisher (note 2), 146.

John Erickson, the International Response to Conflict and Genocide: Lessons from the Rwanda Experience – Synthesis Report (1996), 57–58; Telford/Cosgrave (note 24), 120. 70

See Humanitarian Accountability Partnership (HAP), History, available at: http://www.hap international.org/about/history.aspx (accessed on 25 September 2012). 71

See HAP, Register of Certified Agencies and Auditors, available at: http://www.hap international.org/projects/certification/certified-agency-register.aspx (accessed on 25 September 2012). 72

73

Fisher (note 2), 146 et seq.

See, e.g., Charles-Antoine Hoffman, Time to bite the bullet?, Humanitarian Exchange Magazine 52 (2011), 13, available at: http://www.odihpn.org/download/humanitarianexchange052pdf (accessed on 25 September 2012). 74

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developing appropriate standards, the likely costs involved, the potential to favour the largest NGOs over smaller ones, and how to reconcile certification with the principle of independence.75

IV. The Future of IDRL at the Domestic Level The fact that there may be regulatory needs does not mean that there is a requirement for international as opposed to domestic rules. After all, the affected State itself is surely in the best position to design context-specific rules and procedures both to facilitate and oversee incoming disaster assistance in operation. Such national rules are more likely to be well-articulated with existing national procedures for border crossing and engagement with foreign entities and to benefit from familiar methods of internal dissemination (e.g., through standard civil service training76). Unfortunately, in its research and consultations on the subject of IDRL, the IFRC found in 2007 that very few States had developed comprehensive domestic rules of this sort.77 This finding underlined the negotiation of the “Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance” (IDRL Guidelines),78 which took place in a series of regional conferences and meetings with permanent missions in New York and Geneva between 2006 and 2007.79 The 75

Ibid., 15.

Cf. Angela Raven-Roberts, Disasters, Governance and the Right to Protect: Capacitating the Role of the Civil Service in Risk Reduction and Response, Paper presented at the Mercy Malaysia’s Second International Humanitarian Conference, Kuala Lumpur, 25–26 November 2011. Raven-Roberts argues that educating civil service officials is the best way to improve the interaction between international and domestic systems of disaster response. 76

Fisher (note 2), 83. Fisher reports that, while “[a]pproximately two-thirds of the respondents queried by the IDRL survey indicated that there exists a comprehensive national law or policy on disaster response in their states […] substantially less than half indicated that existing disaster-specific laws or policies set out the procedures for requesting and accepting international assistance (38 %); set out a procedure for determining when international assistance is required (36 %); or regulated the quality and accountability of international disaster relief operations (25 %)”. 77

78 IFRC, Introduction to the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2011), available at: http://www.ifrc.org/PageFiles/ 41203/1205600-IDRL%20Guidelines-EN-LR%20%282%29.pdf (accessed on 30 November 2012).

IFRC, Strengthening the Legal Frameworks for International Response to Disasters: Background Document (2007), available at: http://www.icrc.org/eng/assets/files/other/30ic_9_1_idrl_back ground_eng_final.pdf (accessed on 30 November 2012). 79

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IDRL Guidelines are recommendations to governments about how to evaluate and strengthen their domestic rules and procedures for international relief (whether incoming, outgoing, or in transit), with a view to anticipating some of the most common problems identified in previous operations in various parts of the world. In 2007, the State parties to the Geneva Conventions unanimously adopted the IDRL Guidelines at the 30th International Conference of the Red Cross and Red Crescent.80 Since then, a number of other inter-governmental fora have equally encouraged their members to use the IDRL Guidelines, including the UN General Assembly, which has positively referred to them in eight resolutions.81 Following the suggestion of the 30th International Conference’s adopting resolution,82 the IFRC and its members have offered intensive technical support to interested governments in several dozen countries to use the IDRL Guidelines to evaluate their existing laws and procedures related to international disaster assistance. In 2011, the IFRC together with the UN Office for the Coordination of Humanitarian Affairs (OCHA) and the Inter-Parliamentary Union, also developed a pilot model law as an additional tool for States seeking to implement the recommendations of the IDRL Guidelines.83

IFRC, Resolution 4, Adoption of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2007), available at: http://www.ifrc.org/ PageFiles/53419/resolution4-en.pdf (accessed on 30 November 2012). 80

81 The most recent, GA Res. 66/119 of 15 December 2011, provides in para. 13 that the General Assembly “[w]elcomes the initiatives at the regional and national levels related to the implementation of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, adopted at the Thirtieth International Conference of the Red Cross and Red Crescent, held in Geneva from 26 to 30 November 2007, and encourages Member States and, where applicable, regional organizations to take further steps to strengthen operational and legal frameworks for international disaster relief, taking into account the Guidelines, as appropriate[.]” Similar language can be found in GA Res. 65/264 of 28 January 2011, para. 7; 65/133 of 15 December 2010, para. 11; 64/ 251 of 22 January 2010, para. 7; 64/76 of 7 December 2009, para. 10; 63/141 of 11 December 2008, para. 5; 63/139 of 11 December 2008, para. 8; 63/137 of 11 December 2008, para. 6. 82 See IFRC (note 80), para. 5, “invit[ing] the International Federation and National Societies, in close collaboration with the United Nations as well as other relevant international and regional organizations to […] disseminate and support the use of the Guidelines in strengthening national legal, policy and institutional frameworks for disaster response”. 83 See IFRC/OCHA/Inter-Parliamentary Union, Model Act on the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, Pilot Version (2011), available at: http:// www.ifrc.org/PageFiles/88609/Pilot%20Model%20Act%20on%20IDRL%20%28English%29.pdf (accessed on 1 December 2012).

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To date, ten States report having adopted new laws or regulatory procedures inspired in part by the Guidelines84 and the IFRC has been made aware of approximately a dozen currently pending bills or drafts that include certain aspects recommended by the Guidelines.85 Thus, it can certainly be said that there is progress in developing IDRL at the domestic level, but it is not exceedingly fast. It has also been somewhat piecemeal in several of the States that have taken up the issue. A number of the legal reviews that have been carried out with the participation of the IFRC have concluded that, to anticipate the full range of regulatory problem areas noted in the IDRL Guidelines, not just one but many existing laws (relating, for example, to customs, migration, taxation, NGO registration, the recognition of foreign medical certificates, etc.) would need to be amended.86 This can be a challenging political task. Instead, some of the States have developed non-binding provisions (such as the Netherlands’ Manual for Incoming Foreign Assistance,87 the United States International Assistance System Concept of Operations,88 and New Zealand’s International Assistance Cell Standard Operating Procedures89). Others have (thus far) adopted individual amendments in just one area of potential concern (such as the amend84 The States include Colombia, Finland, Indonesia, Namibia, Netherlands, New Zealand, Norway, Panama, Philippines, and the United States. For a listing as of 2011, see IFRC, Progress in the implementation of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance: Background Report (2011), 4, available at: http://www.ifrc.org/ PageFiles/93534/IC31_5_5_1_IDRLReport_2Oct_EN.pdf (accessed on 1 December 2012).

A list can be found in IFRC, Disaster Law Programme Mid-Year Report (2012), para. 1.3, available at: http://www.ifrc.org/PageFiles/49635/Disaster%20Law%20Programme%20Mid-Year%20Narrative %20Report%202012%20%28final%29.pdf (accessed on 1 December 2012). 85

See, e.g., IFRC (note 27); id., International Disaster Response Law (IDRL) in Mozambique: An analysis of the legal preparedness of Mozambique for facilitating and regulating international disaster response operations – summary version (2012); available at: http://www.ifrc.org/FedNet/Resources%20 and%20Services/IDRL/IDRL%20reports/IDRL%20in%20Mozambique%20-%20Summary%20 Version.pdf (accessed on 1 December 2012); id., International Disaster Response Laws, Rules and Principles (IDRL) in Vanuatu: A study on Vanuatu’s legal and policy framework for managing foreign disaster response (2012); available at: http://www.ifrc.org/PageFiles/93590/Vanuatu%20IDRL%20 Report%20%28Low%20Res%29.pdf (accessed on 1 December 2012). 86

87 Landelijk Operationeel Coördinatie Centrum (LOCC), Manual for incoming Foreign Assistance (version of October 2010), available at: http://www.hetlocc.nl/onderwerpen/bijstand-assistance (accessed on 1 December 2012).

Department of Homeland Security/Department of State/United States Agency for International Development, International Assistance System, Concept of Operations (2010), available at: http:// www.ifrc.org/docs/idrl/748EN.pdf (accessed on 1 December 2012). 88

89 National Crisis Management Centre, International Assistance Cell, Standard Operating Procedures (2009).

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ments made to the immigration legislation in Norway90 and Panama91 intended to allow easier access to relief personnel). For others, (e.g. Colombia,92 Indonesia,93 Namibia,94 Peru,95 and the Philippines96), the preferred approach has been to include a brief section on international relief in their national disaster management acts, to be supplemented by more detailed implementing regulations as a subsequent step. In States currently considering how to strengthen their procedures, a number of challenges have been raised. Some States (particularly in Africa) have yet to adopt national disaster management legislation regulating their domestic systems. For obvious reasons, this is seen as a first priority before addressing international assistance, and, because it is a question that touches on so many sectors of government and society, it is rarely a speedy process. Moreover, in some countries, a number of the common regulatory issues identified in the IDRL Guidelines are governed at the Regulations of 19 October 2009 on the Entry of Foreign Nationals into the Kingdom of Norway and their Stay in the Realm (Immigration Regulations), 19 October 2009, secs. 3–18, available at: http://www.regjeringen.no/upload/JD/Vedlegg/Forskrifter/Immigration_Regulation.pdf (accessed on 1 December 2012). 90

91 Decreto Ejecutivo No. 320, que reglamenta el Decreto Ley No. 3 de 22 de febrero de 2008, que crea el Servicio Nacional de Migración y dicta otras disposiciones, 8 August 2008, sec. 6, available at: http://www.ifrc.org/docs/idrl/934ES.pdf (accessed on 1 December 2012).

Ley 1523 de 2012 por la Cual se adopta la Política Nacional de Gestión del Riesgo de Desastres y se establece el Sistema Nacional de Gestión del Riesgo de Desastres y se dictan otras Disposiciones, 24 April 2012, Art. 43, available at: http://www.ifrc.org/docs/idrl/1057ES.pdf (accessed on 1 December 2012). 92

93 Law of the Republic of Indonesia Number 24 of 2007 Concerning Disaster Management, 26 January 2008, Art. 30, available at: http://www.ifrc.org/docs/idrl/956EN.pdf (accessed on 1 December 2012); Government Regulation of Republic of Indonesia Number 23 of 2008 Concerning Participation of International Institutions and Foreign Non Governmental Institutions in Disaster Management, 28 February 2008, available at: http://www.ifrc.org/docs/idrl/719EN.pdf (accessed on 1 December 2012); Regulation No. 22 of 2010 of the National Agency for Disaster Management (BNPB) on Guidelines on the Role of the International Organizations and Foreign Non-Government Organizations during Emergency Response. 94 Disaster Risk Management Act, Act No. 10 of 2012, Art. 52, reprinted in: Government Gazette of the Republic of Namibia No. 5029 (2012), available at: http://www.ifrc.org/PageFiles/100077/ Namibia_2012_Disaster%20Risk%20Management%20Act.pdf (accessed on 25 September 2012). 95 Decreto Supremo que aprueba el Reglamento de la Ley No. 29664, que crea el Sistema Nacional de Gestión del Riesgo de Desastres (SINAGERD), 26 May 2011, chap. IX, available at: http://www. indeci.gob.pe/objetos/secciones/MQ==/Mw==/lista/MzEx/MzE0/201110131549081.pdf (accessed on 25 September 2012). 96 Philippine Disaster Risk Reduction and Management Act of 2010, Republic Act No. 10121, 27 July 2009, sec. 18, available at: http://www.ifrc.org/docs/idrl/957EN.pdf (accessed on 25 September 2012); Implementing Rules and Regulations of Republic Act No. 10121, 27 September 2010, Rule 14, available at: http://www.ifrc.org/docs/idrl/879EN.pdf (accessed on 25 September 2012).

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provincial or even local levels and the national government has limited legal (or political) power to bring them all into a single line through national legislation.97 In some of these cases, it has been suggested that it would actually be easier – both legally and politically speaking – to institute a consistent rule nationally by way of signature to an external treaty rather than through the adoption of a national statute. Of course, no treaty could completely replace the need for domestic implemented rulemaking, both to provide details unlikely to be addressed in international instruments and to ensure that necessary procedures are fully integrated into domestic systems, training and plans. If advocacy and support from the Red Cross and Red Crescent and others continues at its current level of engagement, it is likely that there will be more domestic IDRL in the future. Moreover, experience thus far seems to indicate that these new laws and procedures can address many of the issues raised above. However, that experience also hints that domestic IDRL developments will not necessarily be any easier or speedier to achieve than those at the international level. Furthermore, many States will develop their rules unevenly (addressing some aspects of the IDRL picture before others) and the content of the rules of the game will likely continue to differ substantially from State to State. This will naturally limit the ability of the international community to design its international disaster response systems and training so as to align with domestic rules and maximise its efficiency.

V. The Future of IDRL at the Bilateral and Regional Levels As noted above, most of the binding international instruments within IDRL are bilateral or regional treaties. Prior research has identified various ‘waves’ of bilateral

For examples of this issue, see Georg Potyka, Analysis of Law in the European Union pertaining to Cross-Border Disaster Relief Country Report: Austria (2010), available at: http://www.ifrc.org/Page Files/93647/National-IDRL-Austria%20Country-Study-230710.pdf (accessed on 1 December 2012); Stefanie Haumer/Eva Dwertmann (eds.), Analysis of Law in the European Union pertaining to CrossBorder Disaster Relief: Country Report by the German Red Cross (2010), available at: www.ifrc.org/ PageFiles/93651/IDRL-Report_GerRC_May2010.pdf (accessed on 1 December 2012); Michael Eburn, Legal preparedness for international disaster response in Australia: Laws, Policies, Planning and Practices (2010), available at: http://www.ifrc.org/PageFiles/93663/193900-australian-cs-EN.pdf (accessed on 20 October 2012). 97

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treaty-making, in the 1950s, 1970s and the 1990s.98 Some States depend quite substantially on bilateral treaties with their neighbours in their planning for potential assistance – based on the assumption that the majority of the help received would come from nearby.99 The development of such agreements with neighbours has also arisen as a recommendation of a number of the State-level technical assessments discussed in section II above and it is therefore likely that their numbers will continue to grow. On the other hand, some of these treaties – and especially bilateral agreements between non-neighbouring States – overlap with regional agreements on the same issues and some of their growth may therefore be displaced by regional initiatives.100 Disaster-specific treaties at the regional (or, more generally, sub-regional) level now cover large parts of the globe101 and, if current trends continue, it would seem very likely that the holes in the jigsaw puzzle will continue to be filled in. The most recent examples are the South Asian Association for Regional Cooperation (SAARC) Agreement on Rapid Response to Natural Disasters,102 which was adopted at the 17th Annual SAARC Summit in the Maldives in November 2011 and the Arctic Agreement on Co-operation on Aeronautical and Maritime Search and Rescue signed by members of the Arctic Council in May 2011.103 Moreover, while not solely focussed on disasters, the African Union (AU) Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009 (Kampala Convention) contains a number of provisions concerning the facilitation and regulation of international disaster relief.104 The AU is also currently finalising a regional humanitarian policy framework.105 98

See Fisher (note 2), 24–26.

99

See, e.g., Haumer/Dwertmann (note 96), describing such a reliance in Germany.

See, e.g., Justine Stefanelli/Sarah Williams, Analysis of Law in the European Union pertaining to Cross-Border Disaster Relief (2010), 56–59, available at: http://www.ifrc.org/PageFiles/93653/193 300-Analysis-of-law-in-EU-EN.pdf (accessed on 29 September 2012). 100

101

See Fisher (note 2), 62–79.

The final negotiation draft of the treaty is available at: http://www.ifrc.org/Docs/idrl/840EN. pdf (accessed on 20 October 2012). 102

See Arctic Council, Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic was signed at the Ministerial Meeting in Nuuk, 12 May 2011, available at: http://www. arctic-council.org/index.php/en/oceans/search-and-rescue/157-sar-agreement (accessed on 20 October 2012). 103

104 See African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 22 October 2009, Arts. 3 (j), 5 (7), 6 (3). 105 See Sanne Boswijk, AU set to incorporate IDRL in new humanitarian policy framework, Disaster Law Programme E-Newsletter, 23 June 2012, available at: http://ifrc.org/en/what-we-do/idrl/latest-

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The development of regional agreements is, unsurprisingly, closely tied up with the expanding political profile of associated regional organisations in the field of disaster management. While some have been quite successful, a recent study concluded that “most regional organisations are still operating in ‘silos’, carrying out their activities in isolation from other regional organisations and the broader international system” and that, “[b]y and large, the rhetoric of many regional organisations is ahead of the reality.”106 Likewise, some regional agreements remain evidence of good intentions rather than operational instruments. For example, both the Organization of American States’ Inter-American Convention to Facilitate Disaster Assistance of 1991 and the League of Arab States’ 1987 Arab Cooperation Agreement on Regulating and Facilitating Relief Operations have been in force for over a decade, but neither has been used operationally. However, both have recently started showing some signs of life – through two new ratifications in the case of the Inter-American Convention,107 and a revised version of the Arab Agreement agreed in 2009.108 There are also more sustained success stories. To name just a few: ASEAN’s Agreement on Disaster and Emergency Management and Recovery (AADMER),109 which was adopted in 2005 in the immediate aftermath of the Indian Ocean tsunami, has proven to be dynamic as a basis for coordination meetings, simulation exercises and planning. Myanmar was a signatory to the AADMER at the time Cyclone Nargis struck, and although the agreement was not yet in force, it was with reference to its ‘spirit’ that the successful negotiation through ASEAN was undertaken.110 Likewise, news/idrl-newsletter-june-2011/au-to-incorporate-idrl-in-new-humanitarain-policy-framework-/ (accessed on 5 October 2012). See Katherine Haver/Connor Foley, International Dialogue on Strengthening Partnership in Disaster Response: Bridging national and international support, Background paper 2: Regional and International Initiatives (2011), 17, available at: http://www.ifrc.org/PageFiles/93533/Background%20 paper%202.pdf (accessed on 5 October 2012). 106

107 The Dominican Republic acceded to the treaty in 2009, the first State to do so since 1996. This was followed by ratification by Nicaragua in 2010. See OAS, Signatories and Ratifications, A-54: InterAmerican Convention to Facilitate Disaster Assistance, available at: http://www.oas.org/juridico/ english/sigs/a-54.html (accessed on 5 October 2012). 108 The revision is noted in the Arab Strategy for Risk Reduction, Res. No. 345 of the Council of Arab Ministers for the Environment, 20 December 2009, 8, available at: http://www.unisdr.org/files/ 17934_asdrrfinalenglishjanuary2011.pdf (accessed on 5 October 2012).

Agreement on Disaster and Emergency Management and Recovery (AADMER), 26 July 2005, available at: http://www.ifrc.org/Docs/idrl/N112EN.pdf (accessed on 5 October 2012). 109

110

See ASEAN, A Humanitarian Call: The ASEAN Response to Cyclone Nargis (2010), 18.

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while it is has struggled for funding, the Central American Coordination Centre for Natural Disaster Prevention (CEPREDENAC) has had success in developing and encouraging Member States to implement a system of “Humanitarian Assistance Coordination Centres,” which gather staff from multiple ministries to serve as a central focal point for interacting with international relief providers.111 In Europe, the European Community Civil Protection Mechanism has steadily grown in stature since its formation in 2001, moving away from a mere network of individual responses by Member State civil protection offices toward more and more centralisation and standardisation,112 with a system responsible for the coordination of over 150 deployments.113 Will regional arrangements and agreements solve the types of regulatory problems discussed in section II above? Many of them do take up issues related to border crossing formalities, such as visas, customs clearance and transport requirements as well as trying to manage requests and offers of assistance. They also seem to generate a great deal of ‘collateral’ attention and goodwill among members, serving as a basis for frequent meetings, trainings, etc., which is an important side benefit. On the other hand, there is also a danger that these developments will end up duplicating or contradicting coordination roles exercised internationally by UN mechanisms or other regional organisations.114 Recognising this, global agencies such as the UN and the IFRC have increasingly reached out to regional organisations,115 signing agreements, co-hosting workshops and generally seeking to develop stronger cultures of cooperation between the regional and global levels. 111

Haver/Foley (note 106), 20.

Marco Gestri, EU Disaster Response Law: Principles and Instruments, in: De Guttry/Marco Gestri/Gabriella Venturini (eds.), International Disaster Response Law (2012), 105. 112

See ECHO, The Community mechanism for civil protection, available at: http://ec.europa.eu/ echo/policies/disaster_response/mechanism_en.htm (accessed on 5 October 2012). 113

114

Haver/Foley (note 106), 17.

See, e.g., OCHA, Remarks of Valerie Amos, UN Emergency Relief Coordinator at the Regional Humanitarian Partnership Workshop for the Asia-Pacific Region 2011, 4, available at: http://ochanet. unocha.org/p/Documents/Shanghai%20Regional%20Partnership%20speech%20checked%20against% 20delivery.pdf (accessed on 25 November 2012). Amos notes that “[w]e need to forge new and lasting relationships, based on trust and mutual respect, so that we can prepare more effectively, and so that when emergencies happen, we know who to talk to, and what we should do. […] In particular, we need to give more support to Asia Pacific regional organizations, whose role will become more important with each year that passes”. 115

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A further area of concern is that the majority of regional agreements address themselves only to State-to-State assistance between their members and, as noted above, they rarely refer to humanitarian principles or aid quality. Thus, they do not offer a clear framework for addressing assistance coming from outside the region or for facilitating the work of non-State entities, such as NGOs and the Red Cross and Red Crescent. It is not unthinkable that this could change. A good example is ASEAN’s agreement, which does in fact extend some of its provisions to the full range of humanitarian actors.116 However, it is noteworthy that the recent SAARC agreement, which otherwise draw largely on the ASEAN model, unfortunately omitted this aspect. VI. The Future of IDRL at the Global Level A. Developments with Existing Instruments

As at the regional level, some of the existing global treaties related to IDRL have suffered from a tendency toward somnolence. For example, as noted above, the International Civil Defence Organization’s (ICDO) Framework Convention on Civil Defence Assistance was made open to accession by all States,117 and, according to its commentary, it was designed to offer States ‘a universal framework’ for disaster cooperation.118 However, it has obtained only fourteen ratifications over the last ten years, constituting less than a third of the ICDO’s own membership. The Tampere Convention has been more successful, with 46 ratifications and new deposits of ratification instruments continuing.119 However, there is, as yet, little evidence that existing State parties have begun to integrate Tampere’s requirements into their domestic laws and procedures.120 116 See AADMER (note 108), Art. 1(1), defining ‘assisting entity’ to include “a State, international organisation, and any other entity or person that offers and/or renders assistance to a Receiving Party or a Requesting Party in the event of a disaster emergency”. 117

See Art. 7 Framework Convention.

Pascal Gondrand et al., Framework Convention on Civil Defence Assistance of 22 May 2000: Commentary, Guidelines for Users and Collection of texts (2002), 2. 118

119 See Status of the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, available at: http://treaties.un.org/pages/ViewDetails.aspx?src= TREATY&mtdsg_no=XXV-4&chapter=25&lang=en (accessed on 20 October 2012). 120 See, e.g., British Red Cross, Analysis of Law in the UK pertaining to Cross-Border Disaster Relief (2010), 59, available at: http://www.ifrc.org/PageFiles/93649/idrl-uk-cross-border-analysis-0810.pdf

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Compared to the above instruments, the Nuclear Assistance Convention is in a league of its own in terms of acceptance, with 108 State parties121 (even though only 30 States worldwide have operating nuclear reactors122). However, it is not clear that this convention fully passed its first major test (admittedly a rather enormous one) when the Fukushima disaster erupted in Japan. While the International Atomic Energy Agency (IAEA) had a very active public profile during the disaster in coordinating offers of assistance, it was not free from criticism.123 Soon after the event, IAEA Director General Yukiya Amano reported to the IAEA Board of Governors that “the current international emergency response framework needs to be reassessed. It was designed largely in the wake of the Chernobyl disaster in 1986, before the information revolution. It reflects the realities of the 1980s, not of the 21st century.”124 In September 2011, the Board of Governors accordingly adopted a formal ‘Action Plan for Nuclear Safety’, which includes commitments to undertake improvements of the international assistance system.125 There are signs that Member States may be interested in investing new energy in some other previously obscure instruments as well. One recent example of this was the adoption this year of the Food Assistance Convention of 2012,126 previously known as the Food Aid Convention. The Food Aid Convention, first adopted in 1967 as a component of the International Grains Agreement, was the only existing treaty in which donor States had committed to minimum quotas of humanitarian aid (accessed on 20 October 2012), noting that the United Kingdom is a party but has not developed implementing legislation. 121 See IAEA, Latest Status of the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (2011), available at: http://www.iaea.org/Publications/Documents/Conventions/ cacnare_status.pdf (accessed on 5 October 2012).

See Alan McDonald, Nuclear Power Global Status, IAEA Bulletin 49.2 (2008), available at: http:// www.iaea.org/Publications/Magazines/Bulletin/Bull492/49204734548.html (accessed on 5 October 2012). 122

See Geoff Bromfiel, Nuclear agency faces reform calls, Nature, 26 April 2011, available at: http:// www.nature.com/news/2011/110426/full/472397a.html (accessed on 20 October 2012). 123

Yukiya Amano, Introductory Statement to the Board of Governors, 21 March 2011, available at: http://www.iaea.org/newscenter/statements/2011/amsp2011n007.html (accessed on 20 October 2012). 124

125 See IAEA, Action Plan for Nuclear Safety, as approved by the IAEA Board of Governors on 13 September 2011, and endorsed by the IAEA General Conference during its 55th regular session on 22 September 2011, available at: http://www.iaea.org/newscenter/focus/actionplan/reports/action planns130911.pdf (accessed on 20 October 2012). 126 See Food Assistance Convention, 8 May 2012, available at: http://treaties.un.org/doc/source/ signature/2012/CTC_XIX-48.pdf (accessed on 20 October 2012).

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every year. After its 1999 revision, the treaty also imposed certain quality obligations on the food aid delivered by Member States.127 However, the previous instrument had come in for a great deal of criticism, including that its quotas were too low, it encouraged international shipments of food rather than local purchase, it failed to support more holistic food security approaches in favour of delivery of grains, it was poorly integrated into mainstream international mechanisms for food security dialogue, it excluded recipient States from discussions, and it was not transparent.128 The newly renamed Food Assistance Convention responds to some (though not all) of these concerns, opening up its quota system to apply to a much wider array of food assistance interventions (beyond grain shipment) and allowing for greater (though still restricted) outside participation in meetings of its Member State oversight body. Likewise, the World Customs Organization (WCO) has recently renewed its interest in disaster situations and in promoting the specific annexes related to disaster relief consignments in its Convention on the Simplification and Harmonization of Customs Procedures and Convention on Temporary Admission. In June 2011, the Customs Co-ordination Council, the WCO’s highest member body, adopted a resolution calling for a number of measures to be taken to promote existing instruments related to customs and disaster relief, improve national level preparedness for the role of customs in disasters, encourage information exchange between customs officials and with humanitarian partners, and develop new information tools and training.129 A series of regional training events co-hosted by the WCO, OCHA and IFRC pursuant to the resolution began in 2012.

127 See Food Aid Convention, 13 April 1999, Arts. 8–13, available at: http://www.foodaidconvention. org/Pdf/convention/iga1995.pdf (accessed on 20 October 2012).

See, e.g., Jennifer Clapp, Renegotiating the Food Aid Convention: What is on the Table?, Options Politiques (2011), available at: http://www.irpp.org/po/archive/aug11/clapp.pdf (accessed on 20 October 2012); Bruce Huff/Michelle Jimenez, The Food Aid Convention: Past Performance and Future Role with the New Global Train and Development Environment (2003), available at: http:// www.ecostat.unical.it/2003agtradeconf/Contributed%20papers/Huff%20and%20Jimenez.PDF (accessed on 1 December 2012). 128

129 See World Customs Organization (WCO), Resolution of the Customs Co-ordination Council on the Role of Customs in Disaster Relief, June 2011, available at: http://www.wcoomd.org/en/topics/ facilitation/activities-and-programmes/~/media/WCO/Public/Global/PDF/About%20us/Legal%20 Instruments/Resolutions/Resolution_E.ashx (accessed on 20 October 2012).

114 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 B. A Flagship Treaty?

For international lawyers, the above developments may be all well and good, but the Holy Grail would be the adoption and widespread ratification of a flagship global treaty. Since 2007, when the ILC began its work on its draft articles,130 a number have begun wondering if such a treaty might now be in the cards (particularly since the ILC itself has not yet decided whether it will propose its draft articles, once finished, as a draft treaty or some other kind of instrument). If history is any guide, they should not be over-confident. There have been two prior attempts in the history of IDRL to develop a flagship IDRL treaty, both of which were ultimately unsuccessful. In 1927, the State parties to the League of Nations adopted the Convention and Statutes Establishing the International Relief Union, a central international agency charged with organising international relief in disasters. The IRU was duly created but never received sufficient funding from its members to operate and effectively died a few years later, though it was only officially terminated in 1967.131 In 1984, the United Nations Disaster Office developed a draft ‘Convention on Expediting the Delivery of Emergency Assistance’, focussing mainly on reducing technical entry barriers (such as visas, customs, and transport restrictions) for relief providers. The draft convention was presented to the UN Economic and Social Council, which referred it to the Second Committee, but the latter never took official action on it.132 To this unpromising background should be added at least three modern factors for doubt. First, as the above discussion of R2P demonstrates, there is a political rift between States that insist on fully untrammelled humanitarian access in disasters and those suspicious of what they see as interventionism cloaked in humanitarian guise. Moreover, at the operational level, there is growing acknowledgment of the frequent lack of trust between humanitarian relief providers and domestic authorities, both suspicious of the others’ motives and capacities.133 130

See ILC, Report on the work of its fifty-ninth session, UN Doc. A/62/10 (2007), para. 375.

131

See Fisher (note 2), 25–26.

132

Ibid., 27 et seq.

See Paul Harvey/Adele Harmer, Building Trust: Challenges for national authorities and international aid agencies in working together in times of disasters (2011), 6, available at: http://www.ifrc.org/ PageFiles/93533/Background%20paper%201.pdf (accessed on 20 October 2012). The IFRC, together 133

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Second, the international community is increasingly focussed on the much broader issues of disaster risk reduction and resilience, as championed in the Hyogo Framework for Action, a soft law instrument adopted at a global conference in 2005.134 There is now a fairly wide recognition, both among States and humanitarian and development organisations, that much more emphasis (and funding) must be devoted to preventing disasters and reducing vulnerabilities and that an approach relying instead on emergency response is no longer viable. In this atmosphere, a proposal for a treaty focused on international response (while a much more obvious target for international rules) could draw criticism for ‘old thinking’. At the same time, it does not seem likely that States would be keen to adopt a global treaty with extensive provisions on disaster risk reduction, in light of the latter’s primarily internal nature and the fact that existing ‘soft law’ arrangements already seem to be making an important impact.135 Third, in light of the growing interest of the UN and many NGOs in the ‘rightsbased approach’ to humanitarian relief,136 it is likely that strong arguments would be made that any modern treaty must include human rights elements. However, if too sharp a focus is placed on rights issues in domestic disaster management, it is likely that some States (particularly from developing economies) will reject the initiative, again, for the reason that they would consider it to delve too deeply in internal affairs. Several of these factors are already playing out in the work of the ILC. As indicated in its title, the ILC is committed to include a human rights focus in its instrument.137 with the Swiss Government, OCHA and the International Council of Voluntary Agencies launched a multi-year ‘international dialogue’ project last year to find ways to start rebuilding that trust. See IFRC, International Dialogue on Strengthening Partnership in Disaster Response: Bridging National and International Support, available at: http://www.ifrc.org/en/what-we-do/idrl/meetings-and-events/pastevents/international-dialogue-on-strengthening-partnership-in-disaster-response/ (accessed on 20 October 2012). See UN Office for Disaster Risk Reduction, Hyogo Framework for Action 2005–2015: Building the Resilience of Communities and Nations to Disasters (2005), available at: http://www.unisdr.org/ 2005/wcdr/intergover/official-doc/L-docs/Hyogo-framework-for-action-english.pdf (accessed on 20 October 2012). 134

See Luca Corredig, Effectiveness and Accountability of Disaster Risk Reduction Practices: An Analysis Through the Lens of Informal International Lawmaking, IFRC Disaster Law Working Paper Series No. 2 (2012), available at: http://www.ifrc.org/PageFiles/80201/Luca%20Corredig%20working %20paper%20DRR.pdf (accessed on 20 October 2012). 135

136 See generally Inter-Agency Standing Committee, Operational Guidelines on the Protection of Persons in Natural Disasters (2011). 137 See ILC, Preliminary Report on the Protection of Persons in the Event of Disasters by Eduardo Valencia-Ospina, Special Rapporteur, Sixtieth session, UN Doc. A/CN.4/598 (2008), para. 12.

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However, it has also been extremely cautious thus far, expressing rights in quite a limited way in the operative text,138 and under the caveat that it will blend a ‘rights based’ with ‘needs based’ approach. Even so, several States have expressed concern in their Sixth Committee statements about the utility of any aspect of a ‘rights-based’ approach to the topic (though a number of others clearly support the idea).139 Moreover, whereas the ILC initially decided to postpone the decision whether to address disaster prevention, the Special Rapporteur has recently announced that he will be examining this issue in his upcoming report,140 though a few States have indicated that they think the project should not extend so far.141 On the other hand, there are also at least three reasons to believe that a future global treaty could be a possibility (whether the ILC decides to present one or not). First, concerns about sovereignty and domestic control might militate in favour of a treaty rather than against it. Under current conditions, States affected by disasters feel enormous political pressure to accept outside aid in major disasters, even if they do not need or want it. Even the most reluctant States, such as Myanmar, as discussed above, generally cede (eventually). On the other hand, States that have sought to provide assistance in disasters, which, as the Japan example indicates, includes an increasing range well beyond the familiar ‘donor States’, are quite frustrated when they are unable to receive a clear and speedy response to their offers. More than developments of their own individual laws, a treaty could make mutual rights and obligations between States clear and also legitimate choices that affected States might make between competent and incompetent actors among those non-State entities wishing to help.

See for example, draft Art. 4, which merely states that “[p]ersons affected by disasters are entitled to respect for their human rights.” See ILC, Texts of draft Articles 1, 2, 3, 4 and 5 as provisionally adopted by the Drafting Committee, UN Doc. A/CN.4/L.758 (2009). Special Rapporteur Valencia-Ospina has indicated that he will avoid presenting a specific list of rights. See ILC, Report of the International Law Commission, Sixty-second session, UN Doc No. A/65/10 (2010), para. 305. 138

ILC, Third Report on the Protection of Persons in the Event of Disasters by Eduardo ValenciaOspina, Special Rapporteur, Sixty-second session, UN Doc. A/CN.4/629 (2010), para. 6; id., Second report on the Protection of Persons in the Event of Disasters by Eduardo Valencia-Ospina, Special Rapporteur, Sixty-first session, UN Doc. A/CN.4/615 (2010), para. 8. 139

140

See ILC, Report on the work of its sixty-fourth session, UN Doc. A/67/10 (2012), para. 80.

See, e.g., Statements of New Zealand and France (on behalf of the European Union), Sixth Committee, Summary record of the 24th meeting held at Headquarters, New York, 4 November 2008, UN Doc. A/C.6/63/SR.24 (2008), paras. 11, 80. 141

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Second, in contrast to the situation when previous global treaties were attempted, States now have several decades of experience developing regional treaties on this topic. While these treaties are no doubt meeting the political need to signal solidarity with neighbours, they will probably not meet the operational need mentioned above to have a better system for all aid offered, including from outside the region. They are, however, showing the kinds of compromise positions that are possible to achieve (albeit with like-minded neighbours) with regard to the facilitation of outside relief providers and with respect to their responsibilities. Likewise, there are a few global treaties with IDRL provisions that have very widespread acceptance. For example, over 100 States each have ratified the Nuclear Assistance Convention, the Chicago Convention on Civil Aviation (with its Annex 9 referring to disasters), and the Convention on Facilitation of Maritime Traffic (with its provisions on disaster relief shipping). At a minimum, this shows that States are not necessarily allergic to global rule-making at a large scale in this domain. Third, and along similar lines, a small but growing number of States are developing domestic legislation on these issues, learning that it is possible to find a suitable balance between facilitating and regulating external assistance. Since any global treaty would likely be in a framework rather than detailed format, States that have taken the step to prepare themselves domestically would likely find that they need not change farther to be in compliance.

VII. Conclusion Whether or not States ever opt for a flagship global instrument, it seems likely that rule-making in the area of IDRL will continue to grow, probably both at the domestic and international (perhaps mainly regional) levels. Like it or not, the days of seat-ofthe-pants international response may slowly draw to a close. There are certainly risks to such rule-making. The new rules may continue to grow at the various levels without much reference to, or coherence with, each other; they may introduce excessive rigidities; they may change or downplay the importance of humanitarian principles; and/or they may favour States’ political interests (or the self-interest of other actors such as humanitarian organisations) over the needs of vulnerable persons. On the other hand, the examples of the Indian Ocean tsunami,

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the Haiti earthquake and the Great East Japan earthquake, among many others, show that there are also great risks to the absence of clear rules – in bottlenecks on the one hand and oversight gaps on the other. Chaos at the wrong time can have a direct impact on affected people. Among the various levels of IDRL, it seems clear that the most important is the domestic. No matter how matters evolve internationally, it will always be mainly up to domestic officials to take the decisions and the steps necessary to address logjams and provide oversight. On the other hand, the influence of international soft law rules, such as the codes of conduct and standards of quality, is very plain. The existing hard law rules, while currently mainly unknown to the most relevant actors, also have the potential to contribute and recent years have brought several examples of deadweight treaties being reborn or revised. As the numbers and impacts of disasters continue to grow, the need to regularise IDRL will grow as well.

The Human Rights Dimension of Natural or Human-Made Disasters WALTER KÄLIN(

ABSTRACT: Although individuals are particularly vulnerable in situations of natural or human-made disasters, and thus in need of protection, disasters have only been put on the human rights agenda in recent years. The European Court of Human Rights, UN treaty bodies and the UN Human Rights Council have addressed the issue on several occasions, and humanitarian actors are increasingly focusing on protection challenges in their disaster responses. The International Law Commission is developing draft articles on the protection of persons in disasters. These are encouraging developments, taking into account the applicability of human rights in disaster situations and ensuing State obligations regarding, for instance, the prevention of human-made disasters, the duty to protect life during disasters, the duty to provide humanitarian assistance to victims, and the duty to authorise, under certain conditions, foreign humanitarian assistance. KEYWORDS: Disaster, Derogation, Economic, Social and Cultural Rights, European Court of Human Rights, Humanitarian Assistance, Human Rights, Human Rights Council, International Law Commission, Right to Life

I. Introduction When Hurricane Sandy made landfall near Atlantic City/New Jersey in the early hours of 29 October 2012 the results were devastating: dozens of people were killed in and around New York City alone, hundreds of houses were destroyed, millions of people remained without electricity and public transportation for days, and the total Institute of Public Law, University of Bern. Former Representative of the UN Secretary General on the Human Rights of Internally Displaced Persons. This article draws extensively on the experiences of the author in his former capacity as Representative of the United Nations Secretary on the human rights of internally displaced persons and reports he submitted in that capacity to the UN Human Rights Council (UNHRC), including, in particular, Report of the Representative of the SecretaryGeneral on the Human Rights of Internally Displaced Persons. This text, however, solely reflects his personal opinion. (

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of damages reached billions of US dollars.1 What made this natural event a disaster was not the force of the wind and the height of the flood waves but the huge negative impact on one of the richest and most developed cities on the globe. Compared to the 2004 Indian Ocean tsunami and other mega-disasters with hundreds of thousands of persons dead or missing, Hurricane Sandy caused very limited damage to human life. Still, it triggered a crisis in affected areas that initially overwhelmed disaster responders, competent authorities and affected communities alike. The notion of disaster has fittingly been defined as: a serious disruption of the functioning of society, which poses a significant, widespread threat to human life, health, property or the environment, whether arising from accident, nature or human activity, whether developing suddenly or as the result of long-term processes, but excluding armed conflict,2

or as an event “resulting in widespread loss of life, great human suffering and distress, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society.”3 Both definitions put the emphasis on the fact that disasters exceed the capacities of affected communities and societies to cope with the hazard and its impacts.4 This notion of disaster covers both sudden-onset disasters such as earthquakes, floods, nuclear accidents or volcano eruptions as well as slow-onset environmental degradations including drought, rising sea-levels or contamination of ground-water and soil, and provides criteria to distinguish disasters from deteriorations of living conditions not reaching that threshold.

See, e.g., CNN, Signs of progress, though damage and heartache remain after Sandy, 1 November 2012, available at: http://news.blogs.cnn.com/2012/11/01/millions-could-face-cold-weekend-fromsandys-power-outages/ (accessed on 28 December 2012). 1

2 The 30th International Conference of the International Red Cross and Red Crescent Movement, Geneva, Switzerland, 26–30 November 2007, Resolution 4, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ Annex, Introduction, Section 2 (Definitions), para. 1. 3 Art. 3 of the International Law Commission’s (ILC) Draft Articles on the Protection of Persons in the Event of Disasters, Texts of Draft Articles 1, 2, 3, 4 and 5 as provisionally adopted by the Drafting Committee, 24 July 2009, UN Doc. A/CN.4/L.758. 4 For an analysis of the impact of natural disasters see, e.g., Elizabeth Ferris/Daniel Petz, The Year that Shook the Rich: A Review of Natural Disasters in 2011 (2012), available at: http://www.brookings. edu/~/media/research/files/reports/2012/3/natural%20disaster%20review%20ferris/03_natural_ disaster_review_ferris.pdf (accessed on 21 December 2012).

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Disasters may be caused by natural hazards or human behaviour, or a combination of both. In the case of human-made disasters, the definitions also fit, in principle, situations of armed conflict. However, there is a common understanding that these types of disasters should be clearly distinguished from large-scale industrial or nuclear accidents and similar catastrophes and should be looked at separately.5 This contribution examines the relevance of human rights in the context of natural and human-made disasters other than armed conflict. The relationship between human rights and disasters is multi-dimensional: (1)

disasters may seriously affect the enjoyment of human rights (factual dimension);

(2)

human rights may entitle individuals to be protected by the State against (certain) hazards and their effects on life, limb, property and other objects of human rights protection (legal dimension);

(3)

human rights may help to shape disaster management and response and suggest a rights-based approach to disaster relief and reconstruction (operational dimension).

Before discussing these dimensions (see infra, section III) and analysing some key areas of disaster response where human rights are particularly important (see infra, section IV), it is useful to recall how, in recent years, disasters were put on the international human rights agenda.

II. Putting Disasters on the International Human Rights Agenda In 2007, a representative of the Office of the High Commissioner for Human Rights (OHCHR), addressing participants of a workshop on integrating human rights in natural disaster management in the Pacific, observed that a little more than a decade ago it would have been completely unthinkable to organize a regional or international meeting on the relationships between two fields that at the time

5 See Art. 4 of the ILC Draft Articles on the Protection of Persons in the Event of Disasters (note 3) excluding armed conflict from the scope of the Draft Articles.

122 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 were perceived by most as completely unrelated: human rights and natural disasters management.6

In fact, for a long time the human rights discourse on humanitarian crises focussed almost exclusively on armed conflict and other situations of widespread violence. It was assumed that in disaster situations human rights were not an issue as everyone would be ready to assist victims out of compassion and thus fully respect their basic rights. However, a series of mega-disasters caused by natural or human factors – or a combination thereof – such as the 2004 Indian Ocean tsunami, Hurricane Katrina devastating New Orleans and its surroundings in 2005, Cyclone Nargis in 2008, the 2010 Haiti earthquake and Pakistan flooding, or the 2011 Tohoku earthquake and tsunami in Japan and the ensuing Fukushima Daiichi nuclear disaster, all brought the human rights dimensions of natural and human-made disasters to the forefront. One year after the Indian Ocean tsunami the then Representative of the UN Secretary-General on the human rights of internally displaced persons and the Special Rapporteur on the right to adequate housing deplored that “[l]arge numbers of survivors remain forced to live in sub-standard conditions that fail to meet criteria for adequate housing and living conditions dictated by international human rights standards”; highlighted “inequities in aid distribution”; expressed their concern that “affected communities have not been consulted and have been denied access to information and participation in planning and decision-making processes related to rehabilitation”; emphasised the need to protect women and children against “socalled ‘tsunami marriages’ among under-age girls” or exclusion of orphaned children from access to the land of their deceased parents; and reminded States “of the urgent need for human rights based disaster-preparedness and disaster-response policies.”7 Paulo David, Integrating human rights in natural disasters management in the Pacific, Opening Statement by the Regional Representative for the Pacific of the Office of the United Nations High Commissioner for Human Rights (OHCHR), available at: http://pacific.ohchr.org/natural_disasters_ workshop.htm (accessed on 1 December 2012). 6

7 Walter Kälin/Miloon Kothari, Relief and Rehabilitation Efforts Remain Problematic One Year After Asian Tsunami, Say UN Experts, Statement by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living of the United Nations Commission on Human Rights and the Representative of the United Nations Secretary General on the Human Rights of Internally Displaced Persons, 19 December 2005, available at: http://www.ohchr.org/EN/News Events/Pages/DisplayNews.aspx?NewsID=8197&LangID=E (accessed on 1 December 2012). On the human rights problems in the aftermath of the tsunami, see also OHCHR, Protection of Internally Displaced Persons in Situations of Natural Disasters – A Working Visit to Asia by the Representative of the United Nations Secretary-General on the Human Rights of Internally Displaced Persons, Walter

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These and similar experiences led the OHCHR to deploy for the first time a human rights advisor to a country affected by a natural disaster when Pakistan was hit by the 2055 Himalaya earthquake.8 Since then, the OHCHR has been involved in several natural disasters, including the 2010 Haiti earthquake.9 This earthquake was the topic of the first special session of the United Nations Human Rights Council (UNHRC) devoted to a natural disaster: the resolution adopted on that occasion expressed concern “about the present human rights situation in Haiti, in particular the vulnerable situation of children, women, internally displaced persons, the elderly, persons with disabilities and the wounded” and encouraged international support “to assist the Government of Haiti to promote and protect all human rights in Haiti in the aftermath of the earthquake.”10 One year earlier, the UNHRC had a more general look at natural disasters when it discussed a thematic report on the protection of internally displaced persons in situations of natural disasters.11 Disaster-related issues have also been taken up within the framework of the UNHRC’s Universal Periodic Review (UPR), albeit very sporadically. Nauru, for instance, was asked by Chile to develop a disaster mitigation and management plan using a human rights approach.12 This rise in recognition of the human rights dimensions of disasters is, as will be shown below,13 also clearly reflected in the work of UN treaty bodies.

Kälin, 27 February–5 March 2005 (2005), available at: http://www.ohchr.org/documents/issues/ID Persons/Tsunami.pdf (accessed on 16 February 2013). 8 OHCHR, Pakistan Summary, available at: http://www.ohchr.org/EN/Countries/AsiaRegion/ Pages/PKSummary.aspx (accessed on 21 December 2012). 9 See, e.g., OHCHR, Haiti: Human Rights in Action, available at: http://www.ohchr.org/EN/News Events/Pages/HaitiHumanRightsInAction.aspx (accessed on 19 December 2012).

UNHRC, Resolution S-13/1, Support of the Human Rights Council for the recovery process in Haiti after the earthquake of 12 January 2010: a human rights approach, 28 January 2010, UN Doc. A/ HRC/S-13/L.1 (2010), paras. 4, 7. 10

11 See Walter Kälin, Addendum, Protection of Internally Displaced Persons in Situations of Natural Disasters, 5 March 2009, UN Doc. A/HRC/10/013/Add.1 (2009). 12 UNHRC, Report of the Working Group on Nauru, 8 March 2011, UN Doc. A/HRC/17/3 (2011), para. 79.40. 13

See infra, III. B. 2.

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Finally, the International Law Commission (ILC) is presently entrusted with elaborating Draft Articles on the “[p]rotection of persons in the event of disasters.”14 The idea is to draft a text highlighting key principles of international law relevant to the topic such as on humanitarian principles or access for humanitarian actors, rather than a human rights instrument. Nevertheless, the present draft highlights that “competent intergovernmental organizations and relevant non-governmental organizations shall respect and protect the inherent dignity of the human person” when responding to disasters (Draft Article 7) and that “[p]ersons affected by disasters are entitled to respect for their human rights.”15 It remains to be seen whether the ILC will limit itself to this general reference or give more precise content to at least some of the relevant human rights guarantees.

III. Human Rights and Disasters: A Three-Dimensional Relationship A. Human Rights Problems in Times of Disaster: The Factual Dimension

Experience shows that disasters may seriously affect the enjoyment of human rights. Floods, windstorms or earthquakes as well as nuclear and other industrial disasters mean that people lose their homes and livelihoods from one moment to the next. Lives are jeopardised, and those injured may not receive adequate medical treatment because of a collapse of the health system. Vulnerable persons such as older people, persons with disabilities, persons with chronic illnesses, orphans, the poor and individuals belonging to socially marginalised groups suffer the most where disaster responses are inadequate or fail to address their specific needs. Experience indicates that pre-existing vulnerabilities and patterns of discrimination are often exacerbated in disaster situations, putting already marginalised and vulnerable groups at an increased risk of human rights abuses.16 In most disaster situations, substantial numbers 14 See GA Res. 62/66 of 6 December 2007, para. 7, taking note of the ILC’s decision to include the topic in its programme of work. At the time of this writing, the ILC has adopted Articles 1–15 in first reading. 15 ILC, Draft Articles on the Protection of Persons in the Event of Disasters, Texts and titles of Draft Articles 6, 7, 8 and 9 provisionally adopted by the Drafting Committee on 6, 7 and 8 July 2010, 14 July 2010, UN Doc. A/CN.4/L.776 (2010). 16

Kälin (note 11), para. 3.

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of people are displaced, exposing them to particular risks and vulnerabilities. As was noted by the Representative of the Secretary-General on the human rights of internally displaced persons: [t]he result can be insufficient or inappropriate protection from continuing threats caused by the effects of the disaster; unequal access to humanitarian assistance, in particular for displaced women; discrimination in the provision of assistance; sexual and gender based violence, particularly in collective shelters or camps; infringements of the right to education, e.g. when schools are used as shelters for a prolonged period of time; non-replacement of lost, confiscated or destroyed documentation; economic and sexual exploitation of children in the absence of sufficient assistance, in particular during the early recovery phase; unsafe or involuntary returns or settlements elsewhere in the country; failure to restitute property and reconstruct houses or ensure compensation; or lack of access to legal remedies.17

Many of these human rights challenges are not the result of intentional policies to do harm but rather the consequence of neglect, lack of capacity or inappropriate policies that do not take into account the human rights dimension of disasters.18

B. The Applicability of Human Rights in the Context of Disasters: The Legal Dimension

1. Explicit References Despite these challenges, applying human rights to natural or human made disasters has not yet become systematic. The assumption that such disasters are a humanitarian issue with few human rights implications continues to be widespread and virtually no human rights conventions specifically address disasters. At the universal level, only the Convention on the Rights of Persons with Disabilities contains an explicit reference to situations of natural disaster, obliging States to take “all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including […], the occurrence of natural disasters.”19

17

Ibid., para. 4.

18

Ibid., para. 5.

Art. 11 of the Convention on the Rights of Persons with Disabilities, 13 December 2006, UNTS 2515, 3. 19

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More can be found at the African regional level: the Kampala Convention20 adopted in 2009 by the African Union (AU) covers internal displacement in Africa not only in cases of armed conflict but also in situations of natural or human-made disasters by providing that persons displaced by such disasters fall into the category of internally displaced persons21 and explicitly obliging States parties to take measures to protect and assist such persons.22 The 2006 Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons (Great Lakes IDP Protocol) contains similar provisions.23 The African Charter on the Rights and Welfare of the Child provides that States parties ensure that children displaced by natural disasters shall receive the same protection and assistance as refugee children.24

2. General Human Rights Guarantees Despite the lack of human rights provisions specifically addressing the protection of persons affected by disasters, human rights law25 is highly relevant as, subject to possible derogations, it is fully applicable to such situations. The ILC’s Special Rapporteur on the topic of protection of persons in the event of disasters mentioned “the right to life, the right to food, the right to health and medical services, the right to the supply of water, the right to adequate housing, clothing and sanitation, and the right not to be discriminated against”26 as particularly pertinent in this context. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 22 October 2009, available at: http://www.unhcr.org/refworld/docid/ 4ae572d82.html (accessed on 15 January 2013). 20

21

Ibid., Art. 1 (k).

22

Ibid., Art. 5 (4).

Arts. 1 (4), 3 (2) and (5) of the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons, 30 November 2006, available at: http://www.brookings.edu/fp/projects/idp/ GreatLakes_IDPprotocol.pdf (accessed on 15 January 2013). 23

24 Art. 23 (4) of the African Charter on the Rights and Welfare of the Child, 29 November 1999, OAU Doc. CAB/LEG/24.9/49 (1990).

For a compilation of applicable human rights standards see Erica Harper, International Law and Standards Applicable in Natural Disaster Situations (2009), available at: http://www.idlo.int/publications/ Natural_Disaster_Manual.pdf (accessed on 15 January 2013). 25

26 ILC, Preliminary report on the protection of persons in the event of disasters by Mr. Eduardo Valencia-Ospina, Special Rapporteur, 5 May 2008, UN Doc. A/CN.4/598 (2008), para. 26 (footnotes omitted).

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Human rights provisions in general not only entail negative duties to respect relevant guarantees and refrain from violating them, but also impose positive obligations to become active and take measures to protect rights holders against infringements of their rights by third parties or as a result of particularly dangerous situations, or to provide them with means necessary for the enjoyment of such rights.27 The duties to protect and to fulfil are obviously relevant to disaster responders, for instance when evacuating people from danger zones or providing humanitarian assistance. The relevance of human rights for people affected by disasters is increasingly recognised by the UN treaty bodies. The Committee on Economic, Social and Cultural Rights (CESCR) repeatedly addressed the issue in its General Comments. It stressed, for instance, that “whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly” and underlined that “this obligation also applies for persons who are victims of natural or other disasters.”28 More generally, it held that “States parties have a joint and individual responsibility […] to cooperate in providing disaster relief and humanitarian assistance in times of emergency.”29 The Committee on the Rights of the Child (CRC) regularly addresses disaster-related issues in its concluding observations on State reports.30 It recommended, for instance, to Belarus to “continue to improve the specialized health care provided to children affected by the Chernobyl disaster, and strengthen its efforts at early detection and prevention of diseases related to nuclear contamination”31 and called on Pakistan to give priority to the reconstruction of school buildings in areas affected by earthquakes.32 Other treaty bodies take a more haphazard approach. See UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), paras. 6–8. On the negative and positive obligations of States, see Walter Kälin/Jörg Künzli, The Law of International Human Rights Protection (2009), 96 et seq. 27

28 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12: The right to adequate food (Art. 11), 12 May 1999, UN Doc. E/C.12/1999/5 (1999), para. 15. 29

Ibid., para. 38.

The UN Committee on the Rights of the Child (CRC) has mentioned disaster issues in more than twenty of its Concluding Observations. 30

31 CRC, Concluding Observations: Belarus, 8 April 2011, UN Doc. CRC/C/BLR/CO/3-4 (2011), para. 58. 32 CRC, Concluding Observations: Pakistan, 15 October 2009, UN Doc. CRC/C/PAK/CO/3-4 (2009), para. 79 (f).

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Several of them dealt with human rights problems in the context of Hurricane Katrina when examining reports submitted by the United States of America. The Human Rights Committee called on the United States to review its disaster related practices and policies in light of its human rights obligations, in particular, the right to life, the prohibition of discrimination and the standards protecting those displaced by disasters.33 The Committee on the Elimination of Racial Discrimination recommended the increase of “efforts in order to facilitate the return of persons displaced by Hurricane Katrina to their homes, if feasible, or to guarantee access to adequate and affordable housing, where possible in their place of habitual residence.” It furthermore suggested “to ensure genuine consultation and participation of persons displaced […] in the design and implementation of all decisions affecting them.”34 The Committee on the Elimination of Discrimination against Women recommended taking appropriate measures to eliminate all forms of discrimination against women with respect to access to housing and food aid in emergency and natural disaster situations and to ensure that women in these situations are adequately protected from violence.35

At the regional level, the European Court of Human Rights (ECtHR) has proactively developed jurisprudence on the duty of States to protect life under Article 2 of the European Convention on Human Rights (ECHR),36 case law that is particularly relevant in the context of disaster risk reduction and evacuation from danger zones.

3. Derogations The emerging jurisprudence of UN treaty bodies and the ECtHR suggests that States have specific obligations to respect, protect and fulfil human rights with regard 33 UN Human Rights Committee, Concluding Observations: United States of America, 15 September 2006, UN Doc. CCPR/C/USA/CO/3 (2006), para. 26. In the same paragraph, the Committee also highlighted the importance of ensuring “that the rights of the poor, and in particular AfricanAmericans, are fully taken into consideration in the reconstruction plans with regard to access to housing, education and healthcare”. 34 UN Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, 8 May 2008, UN Doc. CERD/C/USA/CO/6 (2008), para. 31. 35 UN Committee on the Elimination of Discrimination against Women, Concluding comments: Indonesia, 10 August 2007, UN Doc. CEDAW/C/IDN/CO/5 (2007), para. 39. 36 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR).

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to all phases of disaster response including disaster prevention and preparedness, evacuation, emergency assistance and relief measures, as well as recovery and reconstruction. This, however, raises the question as to whether these approaches take sufficient account of the fact that certain human rights conventions allow for derogations in times of emergency. Article 4 of the ICCPR and Article 15 of the ECHR allow States to temporarily repeal human rights guarantees and suspend their applicability “if and to the extent that the situation constitutes a threat to the life of the nation and the existence of which is officially proclaimed.” In such situations, derogations are permissible, however only “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law” (Article 15 (1) of the ECHR) and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin and do not affect non-derogable rights.37 Except in the case of large-scale disasters hitting very small countries it is not easy to imagine a situation where a disaster threatens “the life of the nation” – a notion clearly addressing situations of armed conflict, revolutions and similar circumstances of widespread violence directed against the State and its institutions. However, as the Siracusa Principles highlight, an actual and exceptional situation affecting the whole population or at least part of the State territory and threatening the physical integrity of the population or the basic functioning of State institutions may reach the neces-

Art. 15 (2) of the ECHR (note 36) lists the right to life, freedom from torture, freedom from slavery and the nulla poena sine lege principle as non-derogable. Protocol No. 7 to the ECHR (22 November 1984, ETS No. 117) adds the ne bis in idem rule to the list, and Protocols No. 6 (28 April 1983, ETS No. 114) and No. 13 (3 May 2005, ETS No. 187) extend it to the prohibition of the death penalty. Art. 4 (2) of the International Covenant on Civil and Political Rights (16 December 1966, UNTS 999, 171 (ICCPR)) further extends the list of non-derogable rights to include the prohibition of retroactive laws, the prohibition of imprisonment for debt, the right to recognition as person before the law and freedom of thought, conscience and religion. Art. 27 of the Inter-American Convention on Human Rights (22 November 1969, UNTS 1144, 123) is even more extensive and includes matrimonial freedom, the rights of the child, the right to nationality, democratic rights and the judicial guarantees essential for the protection of such rights. Art. 4 (2) of the Arab Charter on Human Rights (22 May 2004, reprinted in: International Human Rights Reports 12 (2005), 893) in turn adds the right to access to an independent court, judicial control of detention measures, human treatment of prisoners, the right to leave and return to one’s country, the right to seek asylum abroad and the right to nationality as nonderogable rights. 37

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sary degree of seriousness justifying derogations.38 Yet even then, the principle of proportionality applies insofar as such measures cannot go further in temporal, geographical and substantive terms as “strictly required by the exigencies of the situation.”39 Thus, wholesale derogation measures are usually not permissible; rather such measures must be limited to those rights that for serious and objective reasons can no longer be respected under the circumstances. This means that as long as the desired result can be achieved with permissible limitations of a particular right, its derogation is not necessary. For instance, in a disaster situation it may become necessary to confiscate private property (for instance trucks and building material to reinforce dykes), but such appropriation will often be permissible under the limitation clause of Article 1 of the First Protocol to the ECHR.40 Similarly, it may become necessary to limit the freedom of movement to keep people out of danger zones,41 but such limitations may be justified by overriding public interests and thus admissible, provided they are permitted by law.42 To oblige individuals to provide their own labour in order to cope with the challenges of a disaster and its immediate aftermath does not amount to forced labour as services “exacted in case of an emergency or calamity threatening the life or well-being of the community” fall outside the scope of the prohibition of such labour.43 Disasters may make it necessary to disadvantage certain parts of the population to ensure the survival of others. However, one cannot imagine a situation where it would become necessary to discriminate against people because these persons belong to a specific racial or ethnic and religious group, or are women, etc. Rather where reasons for distinctions emerge they must, and often can, be justified by serious and objectives reasons.44 UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, UN Doc. E/CN.4/1984/4 (1984), Annex, para. 39. 38

39

Art. 4 (1) of the ICCPR (note 37) and Art. 15 (1) of the ECHR (note 36).

Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 30 March 1952, as amended by Protocol No. 11 (11 May 1994, ETS No. 155), ETS No. 9. 40

41

See infra, IV. A.

42

See Art. 12 (3) of the ICCPR (note 37).

43

See Art. 8 (3)(c)(iii) of the ICCPR (note 37) and Art. 4 (3)(c) of the ECHR (note 36).

According to a standard formula used by the UN Human Rights Committee, “not every distinction constitutes discrimination, in violation of Article 26, but that distinctions must be justified on reasonable and objective grounds, in pursuit of an aim that is legitimate under the Covenant.” See, e.g., 44

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In short, unlike wide-spread violence, disasters do not create conditions that usually call for derogations. Exceptions, however, may exist: the right to be brought promptly before a court in case of arrest, for instance, can obviously not be respected where courts have been destroyed or judges killed. In general, however, derogations may not be an adequate way to deal with the particular challenges of disasters, except where the whole territory of a country is seriously affected or its governmental infrastructure is largely destroyed.45 Instead, disaster management laws should provide for limitations of relevant human rights that may become necessary in a given situation to create the necessary legal basis allowing for limitations. In light of these difficulties to justify derogations in disaster situations, it is hardly surprising that only very few States have ever notified a state of emergency to the States parties to the ICCPR through the UN Secretary-General as required by its Article 4.46 However, States may sometimes derogate human rights without the required notification, but this would not absolve them from scrutiny under this provision.47

UN Human Rights Committee, Communication No. 983/2001, Love et al. v. Australia, 28 April 2003, UN Doc. CCPR/C/77/D/983/2001983/2001 (2003), para. 8.2. E.g., the 2010 Haiti earthquake, which destroyed most government buildings in Port-au-Prince and killed many officials. 45

In the aftermath of the earthquake that took place in Chile on 27 February 2010, the government enacted a decree instituting a 30-day constitutional state of disaster emergency in affected regions and made a declaration under the ICCPR (note 37) that the rights to freedom of movement and assembly may be suspended and goods be requisitioned. Guatemala regularly makes declarations under the ICCPR when hit by serious disasters, e.g., in 1998 after Hurricane Mitch devastated Central America, in May 2010 after the eruption of the Pacaya volcano, and in July of the same year when tropical storm Agatha caused widespread damage. Ecuador made a declaration in March 2002 due to a severe storm on the Ecuadorian coast. All these declarations are available via: http://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (accessed on 4 December 2012). Art. 15 of the ECHR (note 36) does not require an official proclamation of a state of emergency but nevertheless obliges States to notify the Council of Europe of such a measure. 46

47 See UN Human Rights Committee, General Comment No. 29, States of Emergency (Art. 4), 31 August 2001, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 17: “[t]he duty of the [Human Rights] Committee to monitor the law and practice of a State party for compliance with Article 4 does not depend on whether that State party has submitted a notification”.

132 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 C. The Operational Dimension

1. Towards a Human Rights Based Approach to Disaster Relief In recent years, UN humanitarian agencies and large non-governmental humanitarian organisations have started to integrate human rights into their disaster responses.48 Particularly important in this regard is the setting-up of ‘protection clusters’ in disaster situations as part of the ‘cluster approach’49 introduced by the United Nation’s Inter-Agency Standing Committee (IASC) in 2005 as part of the reform of the humanitarian system. The cluster approach aims at enhancing the coordination among humanitarian actors and thus the effectiveness of their response in humanitarian emergencies. Besides the protection cluster, ten other thematic areas of humanitarian work including water, sanitation and hygiene; nutrition; emergency shelter; and camp coordination and management are covered today by the cluster system. The protection cluster is tasked with identifying and assessing protection needs of persons affected by a humanitarian emergency and with initiating and coordinating adequate responses. In situations of natural disasters, the protection cluster is led either by the OHCHR (for instance in the aftermath of the 2010 Haiti earthquake), the office of the United Nations High Commissioner for Refugees (for instance during the 2010 Pakistan floods) or sometimes the United Nations Children’s Fund (UNICEF). The Operational Guidelines on Human Rights and Natural Disasters50 adopted by the IASC in a revised version in 2010 were created as an important practical tool51 to help humanitarian agencies to integrate human rights into disaster responses. The introduction to the Guidelines highlights that: assistance cannot simply be assumed to be a neutral activity affecting everyone equally and in a positive way. The manner in which assistance is delivered, used and appropriated, as well as the context in which it is taking place, has an important impact on whether the needs and human rights of affected persons are being respected or fulfilled. A human rights-based 48

For many practical examples, see Harper (note 25).

Anne Willem Bijleveld, Towards More Predictable Humanitarian Responses – Inter-Agency Cluster Approach to IDPs, Refugee Survey Quarterly 25 (4) (2006), 28, 31. 49

UNHRC, Report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin, Addendum, Operational Guidelines on the Protection of Persons in Situations of Natural Disasters, 31 January 2011, UN Doc. A/HRC/16/43/Add.5 (2011). 50

51

For a wealth of practical advice, see Harper (note 25).

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approach […] grounds the basis for humanitarian action in universal principles, such as human dignity and non-discrimination, as well as a set of universally accepted human rights. Those affected by the disaster thus become individual rights holders who can claim rights from particular duty bearers rather than simply being passive beneficiaries and recipients of charity.52

The Operational Guidelines thus promote a human rights based approach to humanitarian action. They do so not only by highlighting those aspects of human rights protection that are particularly relevant in situations of disaster but also by providing users with detailed guidance about practical measures to address the respective rights.53 They deal with four categories of human rights protection: (1)

protection of rights related to protection of life; security and physical integrity; and the protection of family ties in the context of evacuations which are particularly relevant during the emergency phase;

(2)

protection of rights related to the provision of food; health; shelter; and education during the emergency phase;

(3)

protection of rights related to housing, land and property; and livelihoods in the context of recovery; and

(4)

protection of rights related to documentation, free movement in the context of durable solutions for internally displaced persons; re-establishment of family ties, expression and opinion; and elections, i.e. civil and political rights that may become more important the longer the recovery phase lasts.

52

See the Operational Guidelines (note 50), para. 8.

See, e.g., ibid., 21 (Guideline A.5.2): “[c]amps and collective centres for persons displaced by the disaster should, to the extent possible, be located and designed so as to maximize the security and protection of internally displaced persons, including women, older persons and others whose physical security is most at risk […].” As practical measures the Guidelines suggest, inter alia, the following: “[l]ocating washing and communal sanitary facilities, water points, food distribution points, fuel sources, health and education facilities close to living and sleeping quarters; if this is not possible, providing secure access to them, especially at night, including through presence of guards and adequate lighting for all walkways; designing shelters and living/sleeping quarters in a way that allows for a maximum degree of privacy and protection against unwanted visitors and intruders; monitoring security through law enforcement personnel and through camp/shelter committees drawn from among the displaced communities that are representative of the gender and age composition of the population”. 53

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2. Human Rights and Humanitarian Protection These developments raise the question as to what exactly the operational dimension of human rights is.54 Humanitarian actors rarely invoke human rights as a legal category, but they regularly speak about protection as an operational activity. The IASC defines protection as “[…] all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law.”55 Based on this definition: the concept of protection in the context of humanitarian action can be understood as the role humanitarian and (in the context of recovery) development actors play with regard to ensuring that the rights of affected persons under international human rights law are respected, protected and fulfilled without discrimination.56

In emergency situations, people affected by disasters face four typical kinds of practical challenges to their human rights: (1)

they may be denied access to available humanitarian assistance, food, water and sanitation, shelter, health services, education, livelihoods and the like;

(2)

they may risk imminent or face actual harm, in particular violence against their lives and limb, including gender-based violence, but also destruction of property, trafficking of children, separation of families, and the like;

(3)

they may be denied possibilities to assert their rights or lack the capacity to do so, in particular because they lack essential information or are not consulted on issues directly affecting them; have lost documentation such as identity cards, birth certificates, or property titles that are necessary to enjoy and exercise their rights and have no possibility to have them replaced; and do not have access to effective remedies when their rights are violated; and

54 The following is based on the Operational Guidelines (note 50), paras. 14–22, which were drafted under the guidance of this author. 55 Inter-Agency Standing Committee (IASC), Internally Displaced Persons (IDP) Protection Policy (1999). The definition was originally adopted by a 1999 Workshop of the International Committee of the Red Cross (ICRC) on Protection. In the context of natural disasters, international humanitarian law is not relevant unless such disasters occur during an armed conflict and those affected are civilians under the control of a party to the conflict. 56

See the Operational Guidelines (note 50), para. 20.

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they may experience discrimination on account of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and thus be denied access, singled out for harm or unable to assert their rights.57

In this context, humanitarian protection encompasses all activities by authorities, humanitarian organisations and other actors that aim at securing, without discrimination, access for affected people; preventing, stopping or reducing harm against them; or ensuring that they are able to assert their rights. Such activities may include monitoring of the human rights situation and documenting violations; advocacy with authorities and other relevant actors; building capacity of relevant stakeholders as well as affected persons and communities; and direct support to affected persons, such as lighting of water points and sanitation areas in camps to prevent or reduce instances of sexual and gender-based violence; provision of legal aid to victims of human rights violations, and many more practical measures.58

IV. Human Rights in Situations of Disasters: Selected Issues Human rights are relevant for many aspects of disasters and their consequences. It is only possible to discuss a few selected issues in this article, namely the duty to prevent human-made disasters, the duty to protect life in situations of disasters, the duty to provide humanitarian assistance and the duty to allow access to foreign assistance where a State is unable or unwilling to provide needed assistance through its own authorities.

A. The Duty to Prevent Disasters

Human rights, in particular the right to life, oblige States to take necessary measures to prevent human made disasters. This is the clear conclusion to be drawn from the relevant case law of the ECtHR that highlights the duty to protect life against dangers caused by industrial and other human-made disasters. A particular interesting case is

57

See ibid., para. 21.

58

Ibid., para. 22. The Operational Guidelines describe such activities in great detail.

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Öneryildzid v. Turkey59 regarding a methane explosion in a rubbish tip situated on a steep hill in Istanbul which caused a landslide that destroyed ten slum dwellings situated below it, killing 39 people.60 The ECtHR held that the positive obligation to take all appropriate measures to protect the right to life under Article 2 of the ECHR entailed above all a primary duty of the State to establish a legislative and administrative framework designed to provide effective protection against threats to life by establishing effective regulations and procedures governing the licensing, operation and supervision of dangerous activities. The ECtHR concluded that Turkey had breached its obligation to protect life because the responsible municipal authorities, though aware of the danger, had failed to take necessary safety measures such as the installation of a system to burn off gases collecting in the rubbish tip and had furthermore tolerated the building of dwellings in the danger zone.61 In other words, Turkey was held responsible because of failing to take possible preventive measures in a situation where it knew about the danger.62 The ECtHR, summarising and synthesising previous case law63, held that, in the context of dangerous activities, the obligation to take all appropriate steps to protect life through legislative and administrative measures implies that regulations must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.64

Necessary measures have to not only be substantive but also procedural in nature. The latter include “the public’s right to information” as well as “appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels.”65 Furthermore, in cases of death, a criminal investigation must be 59 European Court of Human Rights (ECtHR), Öneryildzid v. Turkey, Judgment of 30 November 2004, RJD 2004-XII, 79. 60

Ibid., para. 18.

61

Ibid., paras. 71, 89, 91 and 101.

A committee of experts had warned of the dangers and proposed specific measures to vent the gas, but their recommendations had not been implemented, see ibid., paras. 13–17. 62

63

Id., Osman v. the United Kingdom, Judgment of 28 October 1998, RJD 1998-VIII, 3159, paras. 115

et seq. 64

Id., Öneryildzid v. Turkey (note 59), para. 90.

65

Ibid.

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conducted and those responsible prosecuted, tried and, if found guilty, punished with a sanction commensurate with the seriousness of the crime and their individual guilt.66 While this case sets out the stringent standards for preventing human-made disasters, preventive action is also important with regard to natural disasters even if they are hard to predict. Disaster risk reduction thus has become an internationally recognised task for States. The 2005 Hyogo Framework for Action stresses that “each State has the primary responsibility […] for taking effective measures to reduce disaster risk, including for the protection of people on its territory […] from the impact of disasters.”67 While the Framework is not based on human rights, case law such as that developed by the ECtHR reinforces the legal character of obligations to take disaster risk reduction measures.

B. The Duty to Protect Life During Disasters

While States cannot be held responsible for natural hazards as such, the right to life creates positive obligations on States to take appropriate steps to safeguard the life and limb of those within their jurisdiction against the risks of natural disasters. If a hazard is foreseeable and the State is able to prevent ensuing threats to life by warning and evacuating populations at risk in a timely manner, it is obliged under the right to life to take such action. In the case of Budayeva et al. v. the Russian Federation,68 several persons were killed by a mudslide hitting a town in the central Caucasus Mountains on 19 July 2000. Such mudslides occur almost every year. During the Soviet period, a system of mud retention dams was built to protect the town, but these were heavily destroyed in 1999. Subsequently, representatives of a State agency mandated to monitor weather hazards warned the local authorities on several occasions that a major disaster could happen if these retention facilities were not repaired in time for the next mud slide season. A last warning 66

Ibid., paras. 93 et seq.

Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, 22 January 2005, UN Doc. A/CONF.206/6 (2005), para. 13. Para. 14 of the Framework sets out five priorities for action, namely to (1) make disaster risk reduction “a national and a local priority with a strong institutional basis for implementation”; (2) “enhance early warning” on the basis of identifying, assessing and monitoring disaster risks; (3) “build a culture of safety and resilience at all levels”; (4) “reduce the underlying risk factors”; and (5) “strengthen disaster preparedness for effective response at all levels”. 67

68 ECtHR, Budayeva and Others v. Russia, Judgment of 20 March 2008, available at: http://hudoc. echr.coe.int/sites/eng/pages/search.aspx?i=001-85436 (accessed on 30 December 2012).

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came on 7 July 2000 when the agency requested that observation points be set up in the mountains above the town in order to issue an emergency warning in the event of a mudslide. However, nothing was done. When, on 18 July 2000, a mudslide hit the town without causing any casualties, the local authorities ordered the evacuation of the endangered neighbourhoods. However, they did nothing to hinder the evacuees from returning to their homes the following day when the mud level lowered. It was then that the main mudslide hit the town and killed eight persons. The ECtHR reiterated that the right to life “does not solely concern deaths resulting from the use of force by agents of the State but also […] lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction” and stressed that this obligation “entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.”69 When implementing this obligation, States have a large discretion in choosing measures, setting priorities and allocating resources, in particular “in the sphere of emergency relief in relation to a meteorological event, which is as such beyond human control.”70 However, in the case of foreseeable natural disasters, they have a duty “to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.”71 In particular, authorities are obliged to warn the public about imminent life-threatening hazards and, if deaths occur, to conduct judicial enquiries to identify those responsible for negligence.72 In the present case, the Court concluded that the Russian Federation had violated the right to life because the local authorities had failed to adequately warn and evacuate the victims from the danger zone and because no serious criminal investigation into the omission of competent authorities was held.73 Because affected people may invoke their right to freedom of movement and the right to choose one’s residence as enshrined in Article 12 of the ICCPR and Article 2 of Pro-

69

Ibid., paras. 128 et seq.

70

Ibid., para. 135.

71

Ibid., para. 132.

72

Ibid., para. 131.

73

Ibid., paras. 153 et seq., 165.

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tocol No. 4 to the ECHR74 to defend their unwillingness to obey orders, the duty to evacuate creates a particular dilemma for States if individuals refuse to leave and have to be evacuated by force or ordered not to return to danger zones. However, authorities are allowed to use forced evacuations and prohibitions to return or even permanent relocation75 as a measure of last resort: the right to freedom of movement can be limited by the State in order to take life-saving measures if such restrictions are provided for by law and are really necessary to protect people against life-threatening disaster-related risks in a particular situation.76 In conclusion, the right to life obliges States, in the context of disasters, to (1)

enact laws dealing with all relevant aspects of disaster risk mitigation and setting up the necessary mechanisms and procedures as well as enacting the necessary substantive provisions;

(2)

take the necessary administrative measures including supervising potentially dangerous situations, taking possible technical measures to avert imminent danger that is known or could be known by the authorities if they exercised due diligence, and to alert people of imminent risks;

(3)

evacuate – if necessary forcibly – people from danger zones and to prohibit their return as long as the danger lasts provided that this is necessary to protect their lives;

(4)

inform the population about possible dangers and risks; and

(5)

conduct criminal investigations and prosecute those responsible for having neglected their duties in case of deaths caused by a disaster.

Violations of any of these obligations in cases of disasters causing deaths will amount to a violation of the right to life and such violations entitle surviving relatives to compensation, including for non-pecuniary damages.

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto, 16 September 1963, ETS No. 46. 74

75 On this issue in the context of disasters linked to climate change, see UN High Commissioner for Refugees, Protection and Planned Relocations in the Context of Climate Change (2012), PPLA/2012/04, available at: http://www.unhcr.org/refworld/docid/5023774e2.html (accessed on 16 February 2013). 76

See Art. 12 (3) of the ICCPR (note 37) and Art. 2 (3) of Protocol No. 4 to the ECHR (note 74).

140 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 C. The Duty to Provide Humanitarian Assistance to those in Need77

People affected by disasters are regularly in need of humanitarian assistance, necessary to their survival and basic welfare, to provide them with goods such as food and emergency shelter, and services such as basic health care. They also need support for activities such as the repair of boreholes and other drinking water related infrastructure, the establishment of transitional schools or the distribution of livestock, seeds and tools to restart agricultural activities and other measures helping them to return to their normal lives in the aftermath of the disaster. Beneficiaries of humanitarian assistance are traditionally perceived as objects of charity. A human rights perspective, in contrast, recognises individuals affected by disasters as holders of rights entitling them to raise claims vis-à-vis the State and its authorities as duty bearers. More specifically, social and cultural rights as enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR)78 entitle disaster victims e.g. to the rights to an adequate standard of living including adequate food, clothing and shelter (Art. 11 of the ICESCR), to health (Art. 12 of the IESCR) and to education (Art. 13 of the ICESCR). These rights also entail certain obligations of States in times of disasters. As the CESCR has highlighted: a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.79

The Committee has further reaffirmed that the core obligation of States to alleviate hunger as provided for by Article 11 of the ICESCR applies “even in times of natural or other disasters.”80 This means that victims of natural or other disasters are entitled to receive food aid whenever they are “unable, for reasons beyond their control, to enjoy the

77 The following is based on the Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, 11 August 2010, UN Doc. A/65/282 (2010), paras. 67–93. 78 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS 993, 3 (ICESCR). 79 CESCR, General Comment No. 3: The nature of States parties’ obligations (Art. 2 (1)), 14 December 1990, UN Doc. E/1991/23 (1991), para. 10. 80

Id., General Comment No. 12: The right to adequate food (Art. 11) (note 28), para. 6.

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right to adequate food by the means at their disposal.”81 Similarly, the ICESCR requires that people “facing difficulties with physical access to water, such as […] victims of natural disasters […] are provided with safe and sufficient water.”82 As regards the right to health, the right to receive necessary medical treatment includes the obligation of States to create “a system of urgent medical care […] and the provision of disaster relief and humanitarian assistance in emergency situations.”83 These statements provide a solid basis for arguing that victims of natural disasters can claim a right to humanitarian assistance when in need. Such humanitarian assistance must be adequate. According to the CESCR ‘adequacy’ in this context means that humanitarian goods and services are (1)

available to the affected population in sufficient quantity and quality;

(2)

accessible, meaning that they are granted to all in need without discrimination and are within safe and easy reach of everyone, including vulnerable and marginalised groups;

(3)

acceptable not only in terms of quality but are also culturally appropriate as well as sensitive to gender and age; and

(4)

adaptable, i.e., they are provided in ways flexible enough to adapt to the changing needs of beneficiaries over time, meaning that what is adequate during and shortly after a disaster may no longer be tolerable many months or years later when the situation has normalised.84

A right to humanitarian assistance can also be derived from the duty to protect life in situations where a State knows about a life-threatening lack of humanitarian goods and services and is able to provide them. In this sense, the UN General Assembly has recognised that “the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitutes a threat to human life and an 81

Ibid., para. 15.

Id., General Comment No. 15: The right to water (Arts. 11 and 12), 20 January 2003, UN Doc. E/C.12/2002/11 (2003), para. 16 (h). 82

83 Id., General Comment No. 14: The right to the highest attainable standard of health (Art. 12), 11 August 2000, UN Doc. E/C.12/2000/4 (2000), para. 16. 84 See, e.g., id., General Comment No. 4: The right to adequate housing (Art. 11 (1)), 13 December 1991, UN Doc. E/1992/23 (1992), para. 8; id., General Comment No. 12: The right to adequate food (Art. 11) (note 28), paras. 7–13.

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offence to human dignity.”85 In fact, the duty to protect life as explicitly enshrined in Article 6 of the ICCPR has to be understood as entailing an obligation to take positive measures to reduce mortality.86 In the area of humanitarian assistance, States and their authorities have (1)

the duty to respect the human rights of individuals affected by natural disasters: they must not violate social rights of such persons by destroying goods or services available to them and necessary for their survival and well-being; or hinder, by physical force or administrative obstacles that are not justified by serious and reasonable grounds,87 access to available humanitarian aid for persons in need of such assistance;

(2)

the duty to protect people affected by natural disasters against attempts by third parties to destroy, take or divert available humanitarian goods or services or hinder their access to available humanitarian assistance, provided authorities know or ought to know the threat and have the means to provide protection;88 and

(3)

the duty to fulfil by providing victims of natural disasters with food, drinking water, clothing, shelter, medical services and other humanitarian goods and services in situations where, for reasons beyond their control (i.e. the particular disaster), they are unable to provide themselves with such goods and services.

GA Res. 43/131 of 8 December 1988, Preamble, para. 8; GA Res. 45/100 of 14 December 1990, Preamble, para. 6. 85

See UN Human Rights Committee, General Comment No. 6: Article 6, 30 April 1982, UN Doc. HRI/GEN/1/Rev. 1 (1982), 7, para. 5 with regard to child mortality. 86

87 It would, e.g., be unreasonable to require people to show personal identity cards when such documents were destroyed by the disasters or left behind by their owners when forced to escape from a danger zone and replacement is not possible. On the other hand, it may be justified to distribute food only to people who beforehand had been identified as beneficiaries in need of food assistance. 88 In ECtHR, Osman v. The United Kingdom, Judgment of 28 October 1998, RJD 1998-VIII, 3124, para. 116, the ECtHR developed the following test: “ […] where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their abovementioned duty to prevent and suppress offences against the person […], it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” This test can be applied, mutatis mutandis, to life threatening risks in the context of natural disasters. This was recognised by the ECtHR by referring to this paragraph in Budayeva and Others v. Russia (note 68), para. 135.

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Human rights entitlements to disaster relief are not yet generally recognised in national disaster management laws. There are, however, exceptions: the Indonesian Law Concerning Disaster Management, for instance, provides that “every person affected by a disaster is entitled to assistance fulfilling basic needs.”89 The Japanese Disaster Relief Act sets out in great detail what kind of humanitarian assistance prefectural governors are obliged to provide to persons who have been subject to disaster and actually require relief.90 At the regional level and limited to internally displaced persons, the duty to provide humanitarian assistance is recognised in the Kampala Convention.91

D. The Duty to Authorise Foreign Humanitarian Assistance

Sovereignty entitles, and human rights law obliges, first and foremost States to provide relief to victims of disasters. This primary responsibility of the State has been recognised by the UN General Assembly, which unanimously held that: [e]ach State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence the affected State has the primary role in the initiation, organization, coordination and implementation of humanitarian assistance within its territory.92

Problems with this approach arise where the responsible State is unable to provide the necessary humanitarian assistance due to a lack of capacity or resources. Taking into account that a serious disruption of the functioning of society lies at the core of the notion of disaster93 it is not surprising that disasters may overwhelm the response capaci89 See Arts. 1 (1) and 26 (2) of the Indonesian Draft Law Concerning Disaster Management (2011), available at: http://www.ifrc.org/docs/idrl/887EN.pdf (accessed on 21 December 2012). 90 See Arts. 2 and 23 of the Japanese Disaster Relief Act, 18 October 1947 (Law No. 108), as amended on 25 December 1984 (Law No. 87), available at: http://www.hiroi.iii.u-tokyo.ac.jp/indexgenzai_no_sigoto-jakusha-kyujohoE.htm (accessed on 21 December 2012).

Art. 9 (2)(b) of the Kampala Convention (note 20) requires States to provide them “to the fullest extent practicable and with the least possible delay, with adequate humanitarian assistance, which shall include food, water, shelter, medical care and other health services, sanitation, education, and any other necessary social services, and where appropriate, extend such assistance to local and host communities”. 91

GA Res. 46/182 of 19 December 1991, Annex, para. 4. See also GA Res. 43/131 of 8 December 1988. According to the ILC, a State affected by a disaster has “by virtue of its sovereignty, […] the duty to ensure the protection of persons and provision of disaster relief and assistance on its territory” as well as “the primary role in the direction, control, coordination and supervision of such relief and assistance.” See Art. 8 of the ILC Draft Articles on the Protection of Persons in the Event of Disasters (note 15). 92

93

See the definitions supra, text accompanying footnotes 2 and 3.

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ties not only of poor but also middle-income or even rich States. Therefore, international humanitarian organisations, non-governmental organisations and other States regularly offer their assistance when a large-scale disaster occurs. Such offers of foreign assistance, however, are not always welcome, as evidenced by, for instance, the refusal by Myanmar to allow humanitarian workers into the country in the immediate aftermath of cyclone Nargis in 2008.94 This raises the question as to whether States may be obliged, under certain circumstances, to authorise humanitarian access. Traditionally, the answer has tended to be negative. Thus, in 1991, the UN General Assembly, invoking the principle of territorial sovereignty, stated that foreign humanitarian assistance should be provided only “with the consent of the affected country.”95 However, sovereignty does not imply that States are entitled to withhold their consent in all circumstances. Article 2 of the ICESCR specifically requires States to take steps towards realising human rights not only on its own but also “through international assistance and cooperation.” This means that States not only have to use their own resources to fulfil their obligations under the ICESCR but also “those available from the international community through international cooperation and assistance.”96 There is a growing acceptance that the obligation to respect, protect and fulfil human rights includes an obligation to invite, accept and facilitate international humanitarian assistance, in particular if the State is unable or unwilling to effectively address all humanitarian needs.97 Particularly clear in this regard are soft and hard law provisions addressing internal displacement. The Guiding Principles on Internal Displacement stipulate that States should consider offers by international humanitarian organisations and other appropriate actors ‘in good faith’ and that “[c]onsent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required See Asia-Pacific Centre for the Responsibility to Protect, Myanmar/Burma Briefing No. 2, Cyclone Nargis and the Responsibility to Protect, 16 May 2008, 2 et seq., available at: http://www.r2p asiapacific.org/documents/Burma_Brief2.pdf (accessed on 21 December 2012). 94

Strengthening of the coordination of humanitarian emergency assistance of the United Nations, GA Res. 46/182 of 19 December 1991, Annex, Guiding Principles, para. 3. 95

CESCR, General Comment No. 3, The nature of States parties’ obligations (Art. 2 (1)) (note 79), para. 13. 96

Report of the UN Secretary-General, Status of internally displaced persons and refugees from Abkhazia, Georgia and the Tskhinvali Region/South Ossetia, Georgia, 17 June 2010, UN Doc. A/ 64/819 (2010), para. 24. 97

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humanitarian assistance.”98 The Kampala Convention requires national authorities to request international assistance where available resources are inadequate to protect and assist internally displaced persons.99 The Great Lakes IDP Protocol obliges States to “facilitate rapid and unimpeded humanitarian access and assistance to internally displaced persons.”100 At the domestic level, Colombia’s law on internally displaced persons, for instance, specifically recognises the rights of the displaced to assistance and a corresponding right of the international community to provide humanitarian assistance.101 In its Draft Articles on Protection of persons in the event of disasters, the ILC builds on these developments. Draft Article 10 provides that [t]o the extent that a disaster exceeds its national response capacity, the affected State has the duty to seek assistance from among other States, the United Nations, other competent intergovernmental organizations and relevant non-governmental organizations, as appropriate.

At the same time, the ILC recognises the sovereign right of States to decide whom to admit to their territory by stressing in Draft Article 11 that “[t]he provision of external assistance requires the consent of the affected State.” This right is limited, however, as, according to the same provision, “[c]onsent to external assistance shall not be withheld arbitrarily.” This prohibition of arbitrariness in denying humanitarian access to actors is based on an understanding that sovereignty entails certain obligations.102 Not only must sovereignty be exercised in good faith but also in accordance with the human rights obligations of States under Articles 1 and 56 in conjunction with Article 55 of the Charter of the United Nations,103 international customary law and treaties, and the ensuing obligations Principle 25 (2) of the OCHA Guiding Principles on Internal Displacement, UN Doc. E/CN. 4/1998/53/Add.2 (1998). 98

99

Art. 5 (6) of the Kampala Convention (note 20).

Art. 3 (6) of the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons (note 23). 100

Art. 2 (1) of the Republic of Columbia’s Law No. 387, 24 July 1997, Offizial Gazette (Diario Oficial) No. 43,091, available at: http://www.brookings.edu/~/media/Projects/idp/Colombia_Law387_ 1997_Eng.PDF (accessed on 15 January 2013). See also Art. 4 (2) of the Republic of Peru’s Law No. 28232 concerning internal displacements (2005). 101

102 ILC, Fourth report on the protection of persons in the event of disasters by Eduardo ValenciaOspina, Special Rapporteur, 11 May 2011, UN Doc. A/CN.4/643 (2011), para. 52, referring to id., Third report on the protection of persons in the event of disasters by Eduardo Valencia-Ospina, Special Rapporteur, 31 March 2010, UN Doc. A/CN.4/629 (2010), para. 75. 103

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

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in the area of humanitarian assistance as outlined above. In this sense, the UN Security Council and the UN General Assembly have stressed the importance of granting unimpeded humanitarian access in emergency situations to those in need.104 Whether or not a refusal to allow humanitarian access is arbitrary requires case-by-case determination. According to the Representative of the Secretary-General on the human rights of internally displaced persons, the rejection of assistance under the following circumstances would, inter alia, amount to arbitrariness (1)

without providing any reasons at all;

(2)

with reasons that are based on factual errors, such as denying the existence of humanitarian needs without a proper assessment; or

(3)

in order to discriminate against a particular group, for instance because it is favouring the political opposition.105

On the other hand, withholding consent to humanitarian actors who blatantly disregard the humanitarian principles of humanity, impartiality and neutrality that have to be respected by humanitarian actors106 would be legitimate.107 The same would be true, for instance, where goods and services provided would not respond to assessed needs or violate minimum standards of quality. In this regard, the Draft Article 13 of the ILC Draft Articles on the Protection of Persons in the Event of Disasters provide that affected States “may place conditions on the provision of external assistance,” particularly 104 See, e.g., SC Res. 1894 of 11 November 2009 on the protection of civilians in armed conflict which notes with concern the severity of constraints on humanitarian access and stresses “the importance for all parties to armed conflict to cooperate with humanitarian personnel in order to allow and facilitate access” to affected civilian populations. See also SC Res. 688 of 5 April 1991; SC Res. 706 of 15 August 1991; SC Res. 822 of 30 April 1993; SC Res. 853 of 29 July 1993; SC Res. 874 of 14 October 1993 and many others calling for unimpeded humanitarian access in specific conflict situations, as well as, e.g., GA Res. 62/153 of 6 March 2008, para. 15. For further analysis, see Walter Kälin, Guiding Principles on Internal Displacement: Annotations, Revised Edition (2008), 114 et seq. 105 See Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons (note 77), paras. 82, 83. 106 See GA Res. 46/182 of 19 December 1991, Annex, para. 2: “[h]umanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality.” On a detailed analysis of the applicability of these principles which have their origin in international humanitarian law to disasters, see ILC, Third report on the protection of persons in the event of disasters (note 102), paras. 14–50. On the meaning of these principles see ILC, Third report on the protection of persons in the event of disasters (note 102), paras. 26 et seq. 107

ILC, Third report on the protection of persons in the event of disasters (note 102), para. 81.

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with regard to “the identified needs of the persons affected by disasters and the quality of the assistance.”

V. Conclusion Human rights are never more important for people than in times of particular need and vulnerability, and they therefore have an important role to play in times of disasters. Although this seems to be obvious, it is only in the last few years that that the human rights dimension of natural or human-made disasters has been on the international agenda. Therefore, “human rights in times of disasters” is an area of international law that is still emerging and has not yet matured into a solid branch of international human rights law. As human rights, in principle, apply regardless in disaster situations, there is little need for new hard law. However, further clarification of the specific content of State obligations inherent in general human rights guarantees as applied to such situations is needed to make them meaningful. Further case law by the ECtHR and other regional courts, authoritative statements by the UN treaty bodies and the development of soft law will be instrumental in this regard. However, emergency situations prevailing during and in the immediate aftermath of disasters are not times for careful human rights analysis. In order to ensure that human rights are fully respected, protected and fulfilled during times of disasters, it is necessary to build a human rights approach into disaster risk reduction and disaster management by enacting laws, regulations and technical manuals that are not only fully compatible with human rights obligations but also translate them into practical action and to build the capacity of disaster responders108 in this regard.

108 Training material on protection in the context of natural disasters using an explicit human rights approach can be found on the website of the Brookings-London School of Economics’ Project on Internal Displacement, available at: http://www.brookings.edu/about/projects/idp/nd-workshop-training (accessed on 15 January 2013). See also Harper (note 25).

Natural Disasters and the Responsibility to Protect SARA E. DAVIES(

ABSTRACT: The International Law Commission (ILC) study on the protection of persons in the event of disasters has been ongoing since 2006. During this period, there has been continuous debate in the literature and in consultations with States as to whether the study should explore the Responsibility to Protect (R2P) persons in the event of natural disasters. In this article, the rationale for this continuing argument is explored considering that the ILC has repeatedly stated since 2008 that the study’s topic – assistance in the event of natural disasters – has no legal relationship with the R2P principle. In the final section it is proposed that the real knowledge gap in the ILC discussion and study is the positive affirmation of the rights of those most affected by natural disasters – women. KEYWORDS: Natural Disasters, Responsibility to Protect, International Law Commission, Myanmar, Zimbabwe, Pakistan, women, humanitarian protection

I. Introduction In 2006, the International Law Commission (ILC) commenced a study on the level of existing legal protection available to affected persons, in the event of natural disasters and other laws relevant to States, regional and international organisations in this context.1 This ongoing study on the protection of persons in the event of natural disasters (protection of persons) focuses on the existing legal instruments and texts

Senior Research Fellow at the Griffith Asia Institute, Griffith University, Australia. The author acknowledges funding from the Australian Research Council that assisted with the preparation of this paper. She thanks Alex Bellamy for his thoughtful comments and suggestions on this paper. All errors are the author’s own. (

1 See ILC, Protection of persons in the event of disasters, 24 September 2012, available at: http:// untreaty.un.org/ilc/guide/6_3.htm (accessed on 16 November 2012).

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applicable to the “main aspects of disaster prevention and relief assistance (including disaster response), as well as to the protection of persons in the event of disasters.”2 Conducted with the assistance of the United Nations (UN) General Assembly’s Sixth Committee (Legal), the study has thus far made a number of important recommendations in drafting Articles for the protection of persons in the event of disasters.3 The idea that both States and the international community have positive obligations to protect and provide for affected persons in the event of a disaster is not new.4 What is new in the ILC study is its focus on an element not covered by prior General Assembly resolutions concerning disaster response: the right of individuals to receive assistance and its relationship to the right of sovereign States to deny such assistance through the well-established principle of non-interference contained in Article 2 (7) of the Charter of the United Nations5 (UN Charter). As such, the ILC study has given rise to fierce debates within the Sixth Committee on the potential imposition of a duty on States to accept offers of external assistance in the event of a natural disaster.6 For the most part, the study has received strong support from Member States. When ‘points of departure’ are raised, however, they are often expressed as concerns about “interfering in internal affairs of the affected State.”7 States have tended not to reject the basic idea that they have a duty to ensure that their populations are provided with unfettered relief and access to humanitarian aid in the event of natural disasters, including acceptance of assistance in the event that the State is rendered incapable by the disaster.8 What has been contentious for the entirety of the ILC study has been any alignment of they duty to accept and provide assistance 2 ILC, Protection of persons in the event of disasters, 11 December 2007, UN Doc. A/CN.4/590 (2007), para. 8. 3 ILC, Report on the work of its sixty-second session, UN Doc. A/65/10 (2010), para. 331; ILC, Report on the work of its sixty-third session, UN Doc. A/66/10 (2011), para. 289; ILC, Fifth report on the protection of persons in the event of disasters, 9 April 2012, UN Doc. A/CN.4/652 (2012), paras. 12–13.

Humanitarian assistance to victims of natural disasters and similar emergency situations, GA Res. 45/ 100 of 14 December 1990; Strengthening of the coordination of humanitarian emergency assistance of the United Nations, GA Res. 46/182 of 19 December 1991. 4

5

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

6

UN Doc. A/CN.4/652 (2012) (note 3), para. 13.

7

Ibid.

Luke Glanville, The Responsibility to Protect Beyond Borders, Human Rights Law Review 12 (1) (2012), 1. 8

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with the Responsibility to Protect (R2P) principle.9 Building on the earlier work of the author, this article re-examines the relationship between the R2P principle and the protection of persons agenda, questioning whether this relationship should be kept separate and distinct or whether they ought to be aligned.10 The purpose is twofold. First, it needs to be understood why some UN Member States believe that the protection of persons agenda would be advanced by alignment with R2P. Second, an attempt is made to identify alternative means by which such protection concerns may be addressed in the protection of persons study without reference to R2P. This article proceeds in three parts. First, the political efforts of those in favour of aligning R2P with the protection of persons in the event of disasters are examined. It details how the ‘pushback’ against this idea by certain States in 2007 and 2008 at the General Assembly prompted the Special Rapporteur and the ILC to retreat from their earlier advocacy of this alignment. In the second part, it is noted that in spite of this ‘pushback’ and retreat by the Special Rapporteur, a number of States and commentators, especially in the aftermath of events such as Cyclone Nargis in Myanmar in 2008, continue to suggest there are outstanding issues that may not justify the complete unequivocal separation of R2P from the protection of persons.11 In particular, it is questionable whether the intentional and systematic denial of humanitarian access to vulnerable populations could be a crime against humanity, one of the four R2P crimes as agreed at the 2005 World Summit definition.12 This section outlines these political, legal and humanitarian arguments for aligning R2P with natural 9 Responsibility to Protect is a principle unanimously adopted by heads of state and government at the 2005 United Nations World Summit. In the World Summit Document, paragraphs 138, 139 and 140, detail the obligation of individual States to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The international community also has a responsibility to assist States in the prevention of these crimes, and should the State be failing to do so, the international community must be prepared to take collective action, in accordance with the UN Charter, to restore protection of civilians. 2005 World Summit Outcome, GA Res. 60/1 of 24 October 2005, paras. 138–140. 10 Sara E. Davies, A Responsibility to Protect Persons in the Event of Natural Disasters?, in: Sara E. Davies/Luke Glanville (eds.), Protection of the Displaced: Deepening the Responsibility to Protect (2010). 11 Rebecca Barber, The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study, Journal of Conflict and Security Law 14 (1) (2009), 3; Jarrod Wong, Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism, Tulane Law Review 84 (2) (2009), 219; Ashley McLachlan-Bent/John Langmore, A Crime Against Humanity? Implications and Prospects of the Responsibility to Protect in the Wake of Cyclone Nargis, Global Responsibility to Protect (GR2P) 3 (1) (2010), 37. 12

2005 World Summit Outcome (note 9), paras. 138–140.

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disasters and considers why some maintain that alignment of R2P with the protection of persons would help address these concerns. The section concludes that the potential benefits of alignment are far outweighed by the potential costs. In the final section it is suggested that the significant protection gap in the ILC study is on the prioritisation of the protection and assistance needs of those most at risk of State neglect in the event of natural disasters – women.

II. Political Efforts: Why the Responsibility to Protect Persons from Natural Disasters? A. Introducing the Topic at the UN

In 2001, the International Commission on Intervention and State Sovereignty (ICISS) argued that an R2P ‘just cause’ threshold for internationally-convened military intervention could include a “conscience-shocking situation […] [of] overwhelming natural or environmental catastrophes, where the State concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.”13 This report was an important prologue to the R2P principle’s appearance in the 2005 World Summit Outcome document.14 By 2005, the scope, application and modes of implementation of the R2P principle had been substantially revised from that which was proposed by the ICISS. In particular, the scope of R2P had been narrowed to four crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity.15 Moreover, any international intervention to end such crimes had to abide by the UN Charter and could only occur with UN Security Council authorisation.16 Four years later, UN Secretary General Ban Ki-moon confirmed the specific scope of R2P’s application by stating in his first report on the principle: 13 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty (2001), 33.

Alex J. Bellamy/Ruben Reike, The Responsibility to Protect and International Law, GR2P 2 (3) (2010), 267. 14

2005 World Summit Outcome (note 9), paras. 138–140, also see Barber, Wong, McLachlan-Bent/ Langmore (note 11). 15

16 Draft resolution referred to the High-level Plenary Meeting of the General Assembly by the General Assembly at its fifty-ninth session, 20 September 2005, UN Doc. A/69/L.1 (2005), paras. 138–140.

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The responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. To try to extend it to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility.17

Despite this statement in the 2009 R2P report specifically noting that on the concept did not applying to natural disasters in the case of the ILC protection of persons study,18 the relationship between natural disasters and R2P continues to appear in discussions, including in the recent 2012 meeting of the relevant UN committee.19 The story of, and continued reasoning behind, the perpetuity of such arguments alignment deserves exploration in order to identify and understand what proponents hope to achieve by aligning the two concepts. In the event of disasters, man-made or natural, the traditional emphasis has been on the right of sovereign States to determine whether assistance is required, as opposed to the right of the persons affected to receive assistance or the duty of other sovereign States to assist.20 As noted above, the General Assembly has passed numerous resolutions that declare the need for persons to be protected and rendered assistance in times of disaster.21 Satisfaction of these needs, however, has always been conditional on the consent of the affected State.22 This has left unanswered the question of the relationship between the individual right to assistance and sovereign rights to non-interference.

Integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields, 12 January 2009, UN Doc. A/63/677 (2009), para. 10 (b). 17

18 ILC, Preliminary report on the protection of persons in the event of disasters, 5 May 2008, UN Doc. A/CN.4/598 (2008), para. 55; ILC, Report on the work of its sixtieth session, UN Doc. A/63/10 (2008), paras. 31–33; ILC, Report on the work of its sixty-first session, UN Doc. A/64/10 (2009), paras. 156, 164; ILC, Fifth report on the protection of persons in the event of disasters, UN Doc. A/CN. 4/652 (note 3), para. 16. 19

UN Doc. A/CN.4/652 (note 3), para. 16.

ILC, Preliminary report on the protection of persons in the event of disasters, UN Doc. A/CN.4/ 598 (2008), paras. 12, 54, 55. 20

Humanitarian assistance to victims of natural disasters and similar emergency situations (note 4); Strengthening of the coordination of humanitarian emergency assistance of the United Nations (note 4). 21

22

UN Doc. A/CN.4/590 (note 2), para. 20.

154 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 B. The Work of the ILC on the Protection of Persons in the Event of Disasters

In 2004, four years after Secretary-General Annan suggested to the General Assembly that a framework outlining the responsibilities of States for receiving and providing assistance in the onset of natural disasters should be considered,23 the ILC considered a submission from the Working Group on the Long-Term Programme of Work to study the protection of persons in critical situations.24 In 2006, after much discussion within the Sixth Committee of the General Assembly and the Working Group itself, the submission led to the ILC accepting into its programme of work the “protection of persons in the event of a disaster.”25 The intent was for the focus to be broad enough to consider the existing legal norms surrounding the protection and humanitarian assistance needs of persons in the event of a disaster; but also narrow, in that the focus would be on natural disasters, and seeking remedy between the right of the State to refuse assistance and the right of persons to receive assistance and access to humanitarian assistance.26 The motivation for this study was twofold. First, Secretary-General Annan’s efforts in 2000 did not represent the first time that the need for a codification of existing rules pertaining to responses to disasters by States, international organisations, and non-governmental organisations had been raised at the UN. In 1994, Monaco had proposed a convention on the establishment of safety zones in armed conflict and humanitarian disasters, based on a 1984 recommendation by UN Secretary-General Javier Perez de Cuellar, who had attempted to introduce a convention on the provision of humanitarian assistance in the case of natural disasters.27 The 1994 suggestion was ultimately unsuccessful, primarily due to concerns that the proposed convention could weaken existing humanitarian access

23 Economic and Social Council (ECOSOC), Strengthening of the coordination of emergency humanitarian assistance of the United Nations, 30 May 2000, UN Doc. A/55/82-E/2000/61 (2000), para. 135 (m). 24

ILC, Report on the work of its fifty-eighth session, UN Doc. A/61/10 (2006), 428, footnote 1064.

25

Ibid., para. 257.

26

UN Doc. A/CN.4/590 (note 2).

Karin Landgren, Safety Zones and International Protection: A Dark Grey Area, International Journal of Refugee Law 7 (1995), 441, footnote 12; UN Doc. A/C.4/590 (note 2), para. 18; para. 262, footnote 812. 27

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under international humanitarian law.28 The earlier attempt by Secretary General Perez de Cuellar had been unsuccessful because during the Cold War “concepts of non-interference in internal affairs overrode most efforts to protect people inside their countries.”29 Secretary-General Kofi Annan’s interest in natural disasters in 2000 was, however, the direct product of positive developments in the 1990s. In 1989, the UN Economic and Social Council (ECOSOC) made a successful recommendation to the General Assembly for the establishment of the International Decade for Natural Disaster Reduction (1990–2000). This led to the appointment of a secretariat office to develop and promote an International Strategy for Disaster Reduction amongst Member States.30 It was the prevention and awareness functions performed by the secretariat that led to the permanent establishment of the United Nations International Strategy for Disaster Reduction (UNISDR).31 The progress made by the UNISDR in achieving global platforms for disaster framework response and recovery by Member States (i.e. 2005 World Conference on Disaster Reduction led to 168 States approving the Hyogo Declaration and the Hyogo Framework for Action 2005–2015: building the resilience of Nations and communities to disasters),32 along with the increased promotion of a human rights led approach to natural disaster to secure humanitarian access,33 inspired the UN Secretariat to adopt a different strategy in mapping the legal right to protection in event of a disaster.34 Rather than seeking immediate General Assembly 28

2009.

Email correspondence with United Nations Office of Legal Affairs Codification Division, April

29 Roberta Cohen, Reconciling R2P with IDP Protection, Brookings Institute 2010, available at: http://www.brookings.edu/~/media/research/files/articles/2010/3/25%20internal%20displacement% 20cohen/0325_internal_displacement_cohen (accessed on 16 November 2012). 30 ECOSOC, International Decade for Natural Disaster Reduction: successor arrangements, 30 July 1999, UN Doc. 1999/63 (1999). 31 International Decade for Natural Disaster Reduction: successor arrangements, GA Res. 54/219 of 3 February 2000. 32 UNISDR, Hyogo Framework for Action, World Conference on Disaster Reduction, 18–22 January 2005, available at: http://www.unisdr.org/we/coordinate/hfa (accessed on 16 November 2012). 33 Inter-Agency Standing Committee (ISAC), ISAC Operational Guidelines on the Protection of Persons in the Event of Natural Disasters, The Brookings-Bern Project on Internal Displacement, January 2011, 2–3, available at: http://www.ohchr.org/Documents/Issues/IDPersons/OperationalGuidelines_ IDP.pdf (accessed on 16 November 2012). 34

2009.

Email correspondence with United Nations Office of Legal Affairs Codification Division, April

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support for a new instrument, a scoping study would be done to assess the degree of existing responsibility that States had already agreed to in the area of disaster response. The ILC programme of study was directed to highlight the existing rights and protection clauses owed to persons in the event of natural disasters, and in doing so, identify protection gaps that both States and international community needed to ‘fill’ to ensure the protection of vulnerable persons. The second reason that led to calls for a study into existing legal rules surrounding protection of persons was the Indian Ocean tsunami disaster, which occurred on 26 December 2004, devastating coastal populations in the Aceh province of Indonesia, Thailand, Sri Lanka, India and Maldives and killing an estimated 227,000.35 The humanitarian response to this geographically immense disaster was widely seen as successful, but it was also thought that there was a need to learn lessons and improve practice. In particular, concerns were expressed about the chaotic organisation of multiple agencies and partners coordinating humanitarian response with severely affected States.36 The tsunami event converged with the long-standing push within the UN secretariat for the codification of the protection of persons. The UN’s Office of Legal Affairs suggested that the original focus of the study be on natural disasters, or natural disaster components of broader, complex emergencies.37 Two proposals, one confidential and one available in the 2006 ILC report,38 explored how the protection of persons topic could be developed. Echoing the work done in relation to internally displaced persons (IDPs),39 the purpose of the report was to scope existing instruments and texts applicable to the “main aspects of disaster prevention and relief assistance (including disaster response), as well as to the protection of persons in the event of disasters.”40 The relationship between R2P and protection of persons affected by natural disasters was first mentioned in the 2006 ILC proposed study. After the unanimous adoption of R2P at the 2005 World Summit, the UN secretariat (authors of 2006 proposed study) argued: 35

Jan Egeland, A Billion Lives: An Eyewitness Report from the Frontlines of Humanity (2008), 124.

36

Ibid., 123, 127.

37

UN Doc. A/61/10 (2006) (note 24), Annex C, para. 9.

38

Ibid., 428, footnote 1064.

Commission on Human Rights, Guiding Principles on Internal Displacement, 14 February 1989, UN Doc. E/CN.4/1998/53/Add.2 (1998). 39

40

UN Doc. A/CN.4/590 (note 2), para. 8.

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[L]ocated within contemporary reflection on an emerging principle entailing the responsibility to protect, which, although couched primarily in the context of conflict, may also be of relevance to that of disasters. […] While recognising the importance of involving all stakeholders, including regional and international organisations and financial institutions, civil society, including non-governmental organisations and volunteers, the private sector and the scientific community, the declaration affirms the primary responsibility of States to protect the people and property on their territory from hazards, whether natural or induced by human processes.41

With acceptance of the ‘protection of persons’ as part of the Commission’s programme of work, the ILC appointed Eduardo Valencia-Ospina as Special Rapporteur. In his first report in 2008 he noted that the protection of persons topic was relevant to the R2P principle, as both sought to highlight the sovereign’s responsibility to protect individuals from harm. Referring to the 2006 ILC proposal that linked R2P and protection of persons, Valencia-Ospina argued: [T]he traditional State system is currently witnessing the emergence of various concepts related to the responsibility of States. As the Secretariat noted in its proposal for the topic, the protection of persons may be located within contemporary reflection on an emerging principle entailing the responsibility to protect. The latter concept entails the responsibility to prevent, react and rebuild, corresponding, respectively, to the three phases of a disaster situation.42

However, upon release of this report there was vocal opposition to alignment amongst some Member States in the Sixth Committee of the General Assembly.43 The opprobrium led Valencia-Ospina and the Secretariat, who assisted in preparing the Memorandum, to unequivocally retract the initial suggestion of a link between R2P and the protection of persons.44 C. Opposition to Aligning R2P with Natural Disaster Relief

The arguments in the 2008 General Assembly Sixth Committee on Legal Affairs ranged from disputes over the concept of R2P in the first place to the more frequently 41

UN Doc. A/61/10 (note 24), Annex, paras. 9, 10.

42

UN Doc. A/CN.4/598 (note 18), para. 55.

43

Davies (note 10), 181–183.

J. Benton Heath, Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and The Work of The International Law Commission, International Law and Politics 43 (2011), 419, 422–423. 44

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expressed argument that R2P simply does not apply to natural disasters. In the subsequent memoranda since this time, Special Rapporteur Valencia-Ospina has noted that as R2P is primarily concerned with genocide and mass atrocities, there is little in its scope that connects the principle to the protection of persons in the event of natural disasters.45 In his second report in 2009, Valencia-Ospina followed the lead of the UN SecretaryGeneral’s report on implementing the R2P and concluded that the concept of R2P would not be applicable to the protection of persons study.46 Following the report, however, some ILC members disputed this finding, suggesting that the ILC is not unanimous in thinking that there is no potential relationship between the two concepts.47 This view has persisted in successive discussions on the topic in the sixty-fourth, sixty-fifth and sixty-sixth sessions of the UN General Assembly’s Sixth Committee.48 Special Rapporteur Valencia-Ospina has continued to emphasise the separation of the R2P principle from the protection of persons in the event of natural disasters. He has also clearly stated that, while seeking to establish the duty of States to accept disaster relief, there is no attempt to “justify forced humanitarian intervention” in his study.49 But as we will see below, not everyone is convinced by the logic of this argument. For some, this study yet to address the question of whose responsibility it becomes when there is State opposition to, or failure in, the delivery of humanitarian assistance in the event of natural disasters.

III. Aligning R2P with Natural Disasters: Why Does the Debate Continue? A. The Current Status and Content of the Draft Articles

The most recent text of the draft Articles on the Protection of Persons, provisionally adopted by the Commission, has thirteen Articles. At time of writing, the first few draft 45

UN Doc. A/CN.4/590 (note 2), para. 250; UN Doc. A/CN.4/598 (note 18), para. 55.

46

UN Doc. A/63/677 (note 17), para. 10 (b).

ILC, Second report on the protection of persons in the event of disasters, 7 May 2009, UN Doc. A/ CN.4/615 (2009), paras. 4, 8. 47

48

UN Doc. A/CN.4/652 (2012) (note 3), para. 16.

49

Heath (note 44), 423.

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Articles recognise the scope of the study itself (Article 1); protection purpose (persons, in respect of their human rights) (Article 2); the definition of disaster (Article 3); and the (lack of) relationship with international humanitarian law (Article 4).50 The next set of Articles are primarily concerned with humanitarian assistance – the duty (of the State) to cooperate with humanitarian actors (Article 5); humanitarian principles (Article 6); and human dignity and human rights (Articles 7 and 8 respectively). Articles 9 to 11 (respectively) detail the specific duties of the affected State, duty of affected State to seek assistance and consent of the affected State to assistance.51 Presently, Articles 12–17 (concerning conditions attached to assistance) remain under discussion. So far, the text has tended towards producing an instrument containing both the duty of the affected State to receive assistance but also one that effectively protects the affected State’s right to refuse offers of external assistance, albeit in limited form. In the effort to pre-empt refusal to offers of assistance, for whatever reason, Article 11 attaches the necessity to provide evidence that consent is not being withheld ‘arbitrarily’, and “that the Commission has already acknowledged that the affected State has the obligation, by virtue of its sovereignty, to ensure the protection of persons and the provision of humanitarian assistance to them on its territory.”52 At this stage, there is no mention of who determines what constitutes an ‘arbitrary’ refusal.53 The ILC does refer to the 1998 Guiding Principles for Internally Displaced Persons as a potential model for the required definition of ‘arbitrary’,54 noting that the General Assembly has unanimously adopted resolutions recognising this text in the Guiding Principles and claiming this to be the foundation for its inclusion in the draft Article 11.55

UN Doc. A/CN.4/652 (note 3); ILC, Report on the work of its sixty-second session, UN Doc. A/ 65/10 (2010), Chapter V. 50

51

ILC, Report on the work of its sixty-fourth session, UN Doc. A/67/10 (2012), para. 81.

52

UN Doc. A/CN.4/652 (note 3), paras. 119, 168.

Ibid., paras. 37, 39; ILC, Report on the work of its sixty-third session, UN Doc. A/66/10 (2011), 268–269. 53

54

UN Doc. E/CN.4/1998/53/Add.2 (note 39).

55

UN Doc. A/66/10 (2011) (note 53), 269.

160 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 B. Reactions on the Political Level

Despite the Special Rapporteur’s strong stance on separating R2P from natural disasters and the deliberate use of ‘duty’ rather than ‘responsibility’ language in the draft Articles detailed above, some States have continued to use ‘responsibility’ language and directly refer to R2P in the UN General Assembly Sixth Committee discussions.56 Moreover, the Secretary-General’s use of three pillars to describe the implementation of R2P57 – (1) the responsibility of the State to protect its population, (2) the international community’s responsibility to assist States, and (3) the international responsibility to take timely and decisive action to protect populations when necessary – still arises in Sixth Committee discussions on natural disasters. As shown below, intentionally or not, the language of paragraphs 138 and 139 of the World Summit Outcome document is still evoked, leading Craig Allan and Therese O’Donnell to note that in the case of the ILC study, “R2P’s ‘rhetorical presence’ never went away.”58 For example, in December 2010, on behalf of the Nordic States, Finland gave a clear statement in the Sixth Committee on where they felt the relationship between R2P and the protection of persons in the event of natural disasters may warrant further study: With regard to draft Article 9 [the role of the affected State] as provisionally adopted by the Drafting Committee, the Nordic countries agreed that it was the primary duty of the affected State to ensure the protection of persons and the provision of disaster relief. The State where the disaster had taken place was best placed to assess the need to protect and assist. However, the affected State’s responsibility should not be regarded as exclusive. It would be important to strike the right balance between State sovereignty and the duty to cooperate. When the affected State did not have the capacity or the will to protect and provide relief to persons affected by the disaster, it should seek assistance from other States and international organizations in accordance with draft Article 5. The Commission should clarify further the scope and limits of the affected State’s exercise of its primary responsibility to protect persons affected by a disaster.59 56

UN Doc. A/64/10 (note 18), paras. 156, 164; UN Doc. A/CN.4/652 (note 3), para. 16.

57

UN Doc. A/63/677 (note 17), para. 11 (a), (b), (c).

Craig Allan/Therese O’Donnell, A Call to Alms?: Natural Disasters, R2P, Duties of Cooperation and Unchartered Consequences, Journal of Conflict and Security Law 17 (2012), 14, available at: http:// jcsl.oxfordjournals.org/content/early/2012/09/18/jcsl.krs012.full.pdf+html?sid=c4d090cc-d11f-4e3d9f36-502859e8bee5 (accessed on 16 November 2012). 58

59 ILC, Summary record of the 22nd meeting, 1 December 2010, UN Doc. A/C.6/65/SR.22 (2010), para. 31.

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In the same Committee, Switzerland sought clarification on how the proposed instrument would apply in the instance where the “disaster did not disrupt the society as a whole, such as an earthquake in a remote area of a country populated by an ethnic minority, did not entail the Government’s obligation to protect.”60 Concerning the question of ‘arbitrariness’, Argentina’s representative questioned “whose responsibility it was to decide that an affected State had failed to provide disaster relief assistance, and with whom the secondary responsibility lay for providing assistance.”61 In these discussions, the implicit concern was primarily related to the potential political benefits that a tacit alignment with R2P may bring in situations where a State systematically refuses assistance to an affected population or where it tries to exploit natural disasters for political purposes. In such circumstances, the potential added value of R2P is that it carries with it the threat of a UN Security Council resolution, including one relating to enforcement, in situations where the State has acted arbitrarily, in contravention of the draft principles. Ultimately, this is an expression of doubt about the capacity of the prohibition of ‘arbitrariness’ to change State behaviour in its own right and a sense that the rule would be strengthened if supported by the potential enforcement capacity of the UN Security Council. Outside of the UN, there has also been much discussion about the applicability of R2P to natural disasters through attempts to specifically link the definition of crimes against humanity with a sovereign’s failure to assist, or allow international assistance, in the event of natural disasters.62 Here, the primary focus is to build a legal case for R2P in the case of natural disasters that may be used to circumvent the denial of assistance by some affected States.

C. The Legal Debate

The key to the argument that there is a link between R2P and natural disasters is with the definition of crimes against humanity, one of the four R2P crimes. The sug60

Ibid., paras. 36, 38.

ILC, Report on the work of its sixty-fifth session, 1 December 2010, UN Doc. A/C.6/65/SR.25 (2010), para. 29. 61

62 Barber (note 11), 3; Wong (note 11), 219; McLachlan-Bent/Langmore (note 11), 37; Stuart Ford, Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis, Denver Journal of International Law and Policy 38 (2) (2010), 227.

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gestion here is that in some circumstance the refusal of assistance in the event of natural disasters could be so grave and systematic as to be deemed a crime against humanity, an R2P crime. According to the Rome Statute of the International Criminal Court (Rome Statute),63 which is typically viewed as the defining document on crimes against humanity, crimes against humanity include the following: ‘extermination’ which refers to the intentional denial of conditions of life, i.e. food and medicine, calculated to destruct the population in Articles 7 (1)(b) and 7 (2)(b) of the Rome Statute; persecution of an identifiable group from Article 7 (1)(h) of the Rome Statute; and inhumane acts ‘causing great suffering, or serious injury to body or to mental or physical health’ according to Article 7 (1)(k) of the Rome Statute. The legal case for R2P in the event of natural disasters, argues Rebecca Barber, may be made in a grievous situation where restrictions on access to aid were sufficient to constitute a crime against humanity and where the United Nations Security Council recognised the gravity of the situation.64 But even if the legal case could be made that a failure to assist in the event of a natural disaster constituted a crime against humanity, the question of what the most appropriate response should be would remain. Implicit in some of the discussions, and explicit in the academic literature, is the view that R2P could be used to enable the use of military intervention. Jarrod Wong wrote one of the earliest pieces proposing that military intervention should be considered as a last resort in a situation where humanitarian access to affected populations is being denied by a State in the aftermath of a natural disaster. He, and others since, have argued that there is a legal relationship between the harm created by a State’s failure to halt large-scale suffering in the aftermath of a disaster and the harm that is to be prevented under the R2P principle.65 Wong suggests an incremental purpose in attaching R2P to the protection of persons in the event of natural disasters. He argues that the alignment would regularise the R2P principle and that its use in the face of natural disasters would be no less controversial or complicated than efforts to persuade the UN Security Council to act decisively to end Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90; Benjamin N. Schiff, Building the International Criminal Court (2008), 74–78. 63

64

Barber (note 11), 3.

Wong (note 11), 247; McLachlan-Bent/Langmore (note 11); Ford (note 62); Allan/O’Donnell (note 58). 65

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atrocities in Darfur, for example.66 Despite the fact that the Secretary-General has explicitly argued that there is no relationship between R2P and natural disasters, Wong proposes that a ‘constructive interpretation’ of R2P would see that the application of the principle should be not to events per se but to the harm created when a State fails to effectively end harm, whether by act or omission.67 Since Wong’s paper, others have agreed that there is a long-term utility in aligning a State’s failure to assist, or the denial of assistance, in the event of a natural disaster with R2P.68 First, there is a clear relationship between the denial of assistance and crime against humanity if the ‘broad interpretation’ of the subset of acts under this crime is sustained by preliminary findings in the International Criminal Court (ICC).69 Second, it has been argued that the lack of political will amongst Security Council members to discuss a situation does not mean that there is no legal (or political) basis for invoking R2P in such cases.70 The most often used examples have been expressions of concern about the disaster in R2P terms by France’s Foreign Minister Bernard Koucher, along with his UK counterpart David Miliband and Canadian Foreign Minister Maxime Bernier.71 It has been suggested that if the Myanmar military junta’s initial refusal of unfettered access for humanitarian actors to reach victims of Cyclone Nargis in the Irrawaddy delta region in 2008 constituted a crime against humanity, the Security Council’s failure to act should be seen as a failure of the Council and not necessarily a failure to correctly align the situation with the R2P principle.72 Rebecca Barber, sympathetic to the alignment of R2P and natural disasters, does concede that even if a situation where the Security Council was united on a Chapter VII resolution in response to a State’s intentional denial of assistance were to arise, prudential considerations make it hard to see how a more coercive approach would 66

Wong (note 11), 262.

67

Ibid., 248.

68

McLachlan-Bent/Langmore (note 11), 37; Ford (note 62), 227.

Ford (note 62), 275–276; also Laurence Boisson De Chazournes, Responbility to Protect: Reflecting Solidarity?, Rüdiger Wolfrum/Chie Kojima (eds.), Solidarity: A Structural Principle of International Law (2010), 98. 69

70

Allan/O’Donnell (note 58).

71

Barber (note 11), 33; Ford (note 62), 234–235.

72

Ford (note 62), 268.

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assist.73 Referring to the precautionary principles (proper purpose, last resort, balance of consequences, proportional means) articulated by the ICISS,74 Barber argues that it is hard to conceive of situations where all four of the principles would be satisfied in the event of natural disasters. This is especially true in relation to the balance of consequences given that there are few, if any, circumstances where the potential addition of an armed conflict or economic sanctions to a disaster situation could be calculated to improve the protection of persons on the ground. In other words, even if justifiable legally because of the potential inclusion of the denial of assistance as a crime against humanity, the alignment between R2P and natural disasters would still not help justify the very measures – enforcement, including sanctions and military intervention – it would be intended to introduce into the disaster response toolkit.75 These findings leave us with the possibility that R2P could have a tenuous relationship to the way that some affected States respond to certain natural disasters, but even then, the political utility of this relationship is not clear. It is doubtful that States would wish to ‘regularise’ R2P. Indeed, consensus on R2P has been secured by it being defined as an enduring responsibility held first and foremost by States to fulfil in relation to narrow set of four crimes and violations. It is very likely that the widening of R2P to include other human protection issues,76 would only weaken the principle itself, making it less able to galvanise responses in relation to the four crimes to which it applies, let alone a broader range of issues – a point stressed by the Special Adviser to the UN Secretary-General on R2P, Edward Luck.77 Even if the potential legal relationship can be borne out, there are still good political grounds for the ILC abandoning the pursuit of alignment between the protection of persons with R2P. Moreover, general appreciations that the primary contribution of the R2P principle is to legitimate military intervention is an inaccurate portrayal of the non-military preventative diplomacy that the post-2005 R2P principle seeks to advance.78 Propo73

Barber (note 11), 24–33.

74

Barber (note 11), 25, footnote 100.

75

Barber (note 11), 32.

76

See, e.g., Wong (note 11); McLachlan-Bent/Langmore (note 11).

77

Edward Luck, Sovereignty, Choice, and the Responsibility to Protect, GR2P 1(1) 2009, 10.

James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (2010); Aidan Hehir, The Responsibility to Protect: ‘Sound and Fury Signifying Nothing?’, International Relations 24 (2) (2010), 218; Mehrdad Payandeh, With Great Power Comes Great Responsibility? 78

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nents of R2P favour ‘non-military over military responses’79 even in the event of R2P crimes because of the few situations where Barber’s prudential considerations (see above) would be met, and the political difficulty in achieving a Security Council resolution to intervene. As a result of this, there is the risk that the ILC study will not add momentum to protection for populations in the event of natural disasters where a tyrannical or incompetent regime fails to provide or accept humanitarian assistance.80 But if this is true and political reasoning conquered legal argument, it does not mean that the ILC made the wrong choice. Achieving agreement on the enduring sovereign responsibility to protect persons in the event of a disaster means that the ILC must bring Member States with it in its findings, with a view to achieving a consensus in the General Assembly much like that achieved with R2P in 2005. From the above account, it seems clear that had the ILC and Special Rapporteur remained wedded to the need to incorporate the R2P principle, not only would this not have delivered a strengthening of humanitarian assistance it would likely also have ruptured any prospect of securing a consensus on the draft Articles.

D. The Humanitarian Debate

Yet the question remains: what to do when a State refuses to grant access or assistance to those among its population affected by natural disasters? As discussed in Section II. B, States such as Finland and Portugal have expressed concern that an affected State may still claim, even after the findings of the ILC, that it is entitled to determine the conditions in which it can legitimately refuse external assistance. Indeed, there are recent cases where States appeared to initially refuse international assistance as much because of internal political dynamics as because of a lack of capacity.

The Concept of the Responsibility to Protect Within the Process of International Lawmaking, The Yale Journal of International Law 35 (2010), 470. Roland Paris, R2P Is Not a License for Military Recklessness, Open Canada, Canadian International Council, 12 March 2012, available at: http://www.opencanada.org/features/r2p-is-not-a-licensefor-military-recklessness/ (accessed on 16 November 2012). 79

80

Allan/O’Donnell (note 58), 29, 32.

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The Myanmar Junta’s weak political hold saw it initially refuse to take the calls of UN Secretary General Ban Ki-moon, let alone allow humanitarian actors access into the Irrawaddy delta in the aftermath of Cyclone Nargis in 2008.81 The tension between the government and the military over control of the initial disaster relief response to the flood crisis in Pakistan in 2010, contributed to the crisis reaching grave proportions before external humanitarian access and assistance was allowed to be geared up to the level required.82 Finally, the disputed elections and popular resistance to the Mugabe-led government saw the deadliest cholera outbreak in Zimbabwe in 2008 and 2009 spread due to outbreak denial, delays in treatment, and controls over access to affected areas placed on external humanitarian actors.83 These cases have sparked concern that States may exploit natural disasters and human suffering for their own purposes and that the international community has little recourse when they do. While most States have thus far accepted prior human rights norms, such as the International Covenant on Civil and Political Rights,84 and humanitarian assistance norms such as the 1998 Guiding Principles on Internal Displacement,85 they continue to reserve for themselves the right to determine the circumstances in which humanitarian access may be granted.86 As Rohan Hardcastle and Adrian Chua argued in 1998, “[A]lthough arguably a right to receive humanitarian aid exists in customary international law, uncertainty relating to rights and obligations during natural disasters has led to delays in the provision of emergency relief.”87 Whether the failures of States such as Myanmar, Pakistan and Zimbabwe were intentional or not, the inability of the affected State to initially scale up effective assistance to affected communities, accept assistance offers and provide unfettered humanitarian access, raised questions about the provision of timely access and the 81

Barber (note 11), 3.

Ajay Madiwale/Kudrat Virk, Civil-military relations in natural disasters: a case study of the 2010 Pakistan floods. International Review of the Red Cross 93 (2011), 1085. 82

Sara E. Davies, Is There an International Duty to Protect Persons in the Event of an Epidemic?, Global Health Governance 3 (2) (2010), 1. 83

84

GA Res. 2200 (XXI) of 16 December 1966.

85

UN Doc. E/CN.4/1998/53/Add.2 (note 39).

86

Heath (note 44), 450–465.

Rohan J. Hardcastle/Adrian T.L. Chua, Humanitarian Assistance: towards a right of access to victims of natural disasters, International Review of the Red Cross 325, 31 December 1998, available at: http://www.icrc.org/eng/resources/documents/misc/57jpjd.htm (accessed on 16 November 2012). 87

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extent to which the international community has a right to demand it. This has continued to be the inspiration of the ILC study as it has witnessed these events.88 In this context, the desire to align the protection of persons with R2P – the clearest principle yet on the responsibility of the international community to protect populations when the State is failing to live up to that responsibility89 – is almost inevitable, if misguided. As, Lloyd Axworthy and Allan Rock argue, while States agreed in 2005 that the R2P principle cannot be broadened beyond the four crimes it covers, this has thankfully not eroded sensitivity amongst many States and humanitarian actors to situations where sovereigns are manifestly failing, intentionally or otherwise, to satisfy the essential needs of their populations.90 Sovereignty as responsibility extends beyond the four crimes; it is only the R2P principle that does not. The 2011 Inter-Agency Steering Committee (IASC) Guidelines on the Protection of Persons in the Event of Disasters is quite clear that the failure to enforce States obligations to provide humanitarian access does not and should not prevent humanitarian agencies, and the wider international community, from expecting States to meet this obligation: This definition of protection has to be seen in the context of fourfold obligations that international human rights law imposes on States to respect human rights, i.e. to refrain from actively violating them; to protect such rights, i.e. to intervene and take protective action on behalf of the victim against threats by others or stemming from a situation; to fulfil them, i.e. to provide goods and services necessary to allow people to fully enjoy their rights; and to discharge these obligations without discrimination. […] Where the capacity and/or willingness of the authorities to fulfil their responsibilities is/are insufficient, the international community plays an important role in supporting and complementing the efforts of the State.91

The case for aligning R2P with natural disasters to secure humanitarian assistance in situations of resistance has been the strongest claim to justify R2P and natural disaster alignment. Yet as stated in the IASC findings on human rights alignment with protection of persons, the best humanitarian outcome is holding a State to account to their human rights obligations to provide and accept assistance – interven88

Heath (note 44), 423.

89

Glanville (note 8), 1.

90

Lloyd Axworthy/Allan Rock, R2P: A New and Unfinished Agenda, GR2P 1 (1) (2009), 54, 56.

91

ISAC, Guidelines on the Protection of Persons in the Event of Disasters (note 33), 6.

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tion would not assist with this positive obligation. Nor would intervention be desirable for humanitarian actors seeking to secure and advance humanitarian access to those populations at risk.92

IV. If not R2P, What Will Secure Protection of Persons? The argument for linkage between R2P and protection of persons in the situation of natural disasters, calls for a degree of ‘constructive’ interpretation of R2P,93 and a high evidentiary threshold whereby it may take years to establish whether an R2P crime to justify linkage, i.e. crime against humanity, has occurred.94 Moreover, as Barber makes clear,95 it is not clear what benefit a military intervention may serve in a situation where there has already been large-scale loss of life. An intervention would likely bring only more loss of life and no clear exit strategy. Even if the charge that the ILC ‘retreated’ from an alignment between R2P and natural disasters due to mounting political pressure and to avoid the risk that this opposition could threaten the study’s wide support is correct,96 there is little evidence of a clear legal, political and humanitarian benefit between R2P and natural disasters in cases where humanitarian assistance is denied.97 Just as importantly though, the ILC’s decision to avoid referring to R2P does not prohibit the Security Council from adopting measures in situations where it believes that the arbitrary refusal to accept assistance constitutes a threat to international peace and security.98 At this point though, the uncomfortable truth still remains that enforcement is difficult to achieve and may be of little practical use in this area even if R2P were in perfect alignment with natural disasters. There will remain political opposition and a high legal threshold for demonstrating a R2P crime, especially when the criteria for action require a State to deliberately, intentionally and systematically restrict humanitarian assistance 92

Ibid., 5–7.

93

Wong (note 11); Ford (note 62).

94

Barber (note 11); Allan/O’Donnell (note 58).

95

Barber (note 11), 32.

96

Heath (note 44), 423.

97

Barber (note 11), 24.

98

Heath (note 44), 474–476.

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with the intent to cause grave harm. This threshold is in place to protect States, but it is also there to protect populations from selective interventions waged on the basis of false grounds with perhaps graver humanitarian consequences.99 This is cold comfort in a situation where a natural disaster may be used as a cover for the commission of R2P crimes – the denial of humanitarian access to weaken political opponents or displace ethnic minorities.100 While there is no evidence up to this point that a State has used a natural disaster in this way,101 there may be cases in the future where a State behaves this way and exploits the situation to defeat opponents; perhaps through ethnic cleansing or the purging of political opposition on the pretext of crisis response. Indeed, the opportunistic refusal of humanitarian assistance to civilians trapped by armed conflict has become a common feature in civil wars.102 The challenge for the protection of persons in the event of natural disasters agenda is, as the ongoing study by the ILC reveals, to win the argument by persuasion through constant reminders to States of their obligations under the UN Charter, as signatories of human rights instruments, and prior agreements and declarations in the event of natural disasters.103 Indeed, it should be noted that in the three recent cases briefly mentioned above where there was resistance to humanitarian access – Myanmar, Pakistan and Zimbabwe – the breakthrough was facilitated through dialogue and diplomacy. From this, it seems clear that a more profitable avenue to pursue than the alignment of R2P with the protection of persons is to focus on elements of protection that can be achieved without going down this route. There are strong programmatic efforts being developed outside of the Security Council that are assisting (and enforcing) States responsibility to protect persons in the event of natural disasters. The 2011 ISAC report on humanitarian access in the event of natural disasters which provides humanitarian actors with a detailed framework for securing access and 99 Asia Pacific Centre for the Responsibility to Protect, Cyclone Nargis and the Responsibility to Protect, Briefing No. 2 (2008). 100

UN Doc. A/C.6/65/SR.22 (note 59), paras. 36–37 (Switzerland delegate).

Mariya Y. Omelicheva, Natural Disasters: Triggers of Political Instability?, International Interactions 37 (2011), 441. 101

102 Eric Reeves, Humanitarian Obstruction as a Crime Against Humanity: The Example of Sudan, African Studies Review 54 (3) (2011), 165. 103

Heath (note 44); UN Doc. A/CN.4/652 (note 3), paras. 170–172.

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providing protection to vulnerable groups;104 the Special Rapporteur documentation of existing State obligations to humanitarian access in various agreements, frameworks and human rights conventions, compliments the arguments of the IASC study that States have already committed themselves to humanitarian access for all persons;105 and the UNISDR efforts to implement State level prevention and risk reduction frameworks that are being assessed and tested by the UN agency, all contribute to ‘natural disaster diplomacy’ where the international community has evidence, frameworks and agreements that may be increasingly used to call upon States to fulfil their protection obligations. One example of this is Cyclone Nargis. While the focus has been primarily on the initial resistance of the Junta, there is also a case to be made that Nargis was also evidence of how natural disaster diplomacy in this area can work. It was the combined efforts of the regional organisation, the Association of Southeast Asian Nations (ASEAN) Secretariat, and select ASEAN Member States that secured international humanitarian access into Myanmar.106 Likewise, it has been observed that the diplomatic pressure from Kenya and South Africa marked an important change in the event of the cholera epidemic in Zimbabwe that saw the Mugabe government agree to unfettered humanitarian access to most affected areas.107 However, what remains particularly striking and disappointing in all of this discussion concerning the ILC study is that the group most consistently at risk of R2P crimes in the aftermath of natural disasters108 – women – have received little consideration as to how to prevent their particularly high risk of death and greater obstacles to humanitarian assistance in such an event.

104

ISAC, Guidelines on the Protection of Persons in the Event of Disasters (note 33).

ILC, Protection of persons in the event of disasters, 26 February 2008, UN Doc. A/CN.4/590/ Add.1 (2008). 105

106 Mely Caballero Anthony, Cyclones and Humanitarian Crises: Pushing the Limits of R2P in Southeast Asia, GR2P 1(2) (2009), 135. 107 Jeremy Youde, Don’t drink the water: Politics and cholera in Zimbabwe, International Journal 65 (3) (2010), 687. 108 Widespread and systematic sexual and gender based violence is a crime against humanity. See Jennifer Bond/Laurel Sherret, Mapping Gender and the Responsibility to Protect: Seeking Intersections, Finding Parallels, GR2P 4(2) (2012), 133.

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V. Gender-Exploitation and Failure to Assist in Natural Disasters Women and children are fourteen times more likely to die than men during natural disasters.109 Domestic violence against women – in developing and developed countries – is higher after natural disasters.110 Women survive after natural disasters only in spite of the tremendous social, economic and political obstacles they face in the aftermath. There is a risk that these rates of death, violence and exclusion will become higher for women in the coming century if predictions are correct in that there will be more extreme natural disaster events caused by climate change, and risk of exposure will grow faster than opportunity to build resistance.111 It is likely, therefore, that gender inequality will be further exacerbated by individual cases of natural disaster and the overall increase in cases more generally. However, in national reports on disaster reduction, only 19 out of 118 country reports mention gender responsive policies in the context of disaster reduction and risk management.112 In the ILC’s programme of work on protection of persons in the event of natural disasters (from 2006 and 2012),113 there have been only seven specific protection references to gender or women. Where it appears at all, the issue arises in the context of the need for a ‘gender perspective’ in discussions on access to assistance,114 women as vulnerable groups in need of specific assistance protection,115 assistance to be provided to women pending given situation and cultural context,116 and risk of sexualgender based violence in the aftermath of natural disasters.117 As such, the ILC study has so far retained a very narrow interpretation of what it could extrapolate from the David Singh, IDDR 2012 – Putting women and girls on the map, 5 October 2012, available at: http://www.unisdr.org/archive/28886 (accessed on 16 November 2012). 109

110

Jacqui True, The Political Economy of Violence Against Women (2012), Chapter 9.

111

Singh (note 109).

112

Ibid.

Report of the International Law Commission on the work of its sixty-second session, GA Res. 65/ 26 of 10 January 2011. 113

114

UN Doc. A/CN.4/652 (note 3), para. 173; UN Doc. A/67/10 (note 51), para. 70.

ILC, Third report on the protection of persons in the event of disasters, 31 March 2012, UN Doc. A/CN.4/629 (2010), para. 48; UN Doc. A/CN.4/590 (note 2), para. 12; UN Doc A/66/10 (note 3), para. 289, commentary 6. 115

116

UN Doc A/66/10 (note 3), para. 198.

117

UN Doc. A/CN.4/590 (note 2), para. 255.

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plethora of human rights materials pertaining to the rights of women and their specific access needs concerning gender empowerment, discrimination, and equality specifically concerning humanitarian assistance.118 This is remarkable given that women face likelihood proportionally higher risk of assistance shortcomings, denied assistance, and protection failures. We know from the few references to gender that the ILC has observed that the study does apply to the protection of women. But at the moment, the specific content of the ILC draft Articles on the Protection of Persons in the event of disasters have no reference to women or gender. In the commentary on the Articles there are only two references to gender – Articles 6 and 13 of the draft Articles. The commentary to draft Article 6 notes that the International Federation for Red Cross (IFRC) guidelines list women as being part of a particularly vulnerable group with special needs to be accommodated in the event of natural disasters.119 Meanwhile, the draft Article 13 commentary notes that there could be future inclusion in the Article of the need for States to adopt a gender perspective to ensure assistance effectiveness.120 In the Office for the Coordination of Humanitarian Assistance (OCHA) guidelines on gender equality and humanitarian assistance, it is noted that ECOSOC has repeatedly stressed the importance of gender mainstreaming and gender involvement.121 In March 2012, Member State delegates at the Commission on the Status of Women passed a unanimous resolution on gender quality and the empowerment of women.122 This resolution specifically refers to the need for States to ensure assistance in post-disaster environments that mitigate the risk of sexual and gender-based violence123 to address gender-based exploitation and ensure the specific human rights of women. These include the safe and secure access to food and water supplies, clean water and sanitation, sexual and reproductive health care, physical, psychological and 118 Office for the Coordination of Humanitarian Assistance, Gender Equality, 3, available at: http:// ochanet.unocha.org/p/Documents/OCHA_Gender_Equality_Toolkit.pdf (accessed on 16 November 2012). 119

UN Doc. A/66/10 (note 3), para. 289, commentary 6.

120

UN Doc. A/67/10 (note 51), para. 70.

121

Office for the Coordination of Humanitarian Assistance, Gender Equality (note 118), 3.

ECOSOC, Situation of and assistance to Palestinian women, 9 March 2012, UN Doc. E/CN.6/ 2012/L.4 (2012). 122

123 Widespread and systematic sexual and gender-based violence are crimes against humanity and war crimes under Arts. 7 (g); 8.2 (b)(xxii); and 8.2 (e)(vi) of the Rome Statute (note 63).

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mental health care, and shelter.124 This resolution, proposed by Japan one year after the Great East Japan Earthquake, will now be sent to the ECOSOC for adoption.125 These resolutions should be guiding States and the ILC study in ensuring that sovereignty as responsibility does not apply merely to the projected scenarios, but also to the real scenarios where groups at highest risk in terms of access to assistance, women, are not refused their right to receive it. One recommendation would be that the ILC study turns to the work of UN bodies such as The Commission on the Status of Women (CSW), United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) and OCHA, in order to determine how this study could direct its work on the proposed instrument to work effectively for such groups. Approaching the issue in a manner that is more closely integrated with the needs of women and resolutions of various UN bodies is likely to open up new avenues for advancing the protection of persons of agenda without recourse to the highly controversial and largely inappropriate R2P.

VI. Conclusion The ILC study on the protection of persons in the event of a disaster has the unenviable task of seeking to promote the duty to protect and assist when States have not signed any specific instrument that gives this obligation supremacy over the sovereign right of non-interference. Concerns that States will be able to exploit the safeguards that the ILC is seeking to create, such as the restriction on the ‘arbitrary’ refusal of assistance in Article 9 (2) of the draft Articles,126 has led to some States and commenters arguing that the legal relationship between R2P and natural disasters should be integrated. Of course, as others have noted, the legal relationship is tenuous at best and may still not overcome political deadlock or provide viable operational solutions. Diplomatic persuasion may still be the best tool when it comes to encouraging affected States to grant access. The work of the ILC study enables that persua124

UN Doc. E/CN.6/2012/L.4 (note 122), para. 2 (e), (f), (g).

ECOSOC, Draft Resolution Reaffirming Israeli Occupation Major Obstacle For Palestinian Women’s Advancement, Self-Reliance Requires Recorded Vote, 9 March 2012, UN Doc. WOM/1904 (2012). 125

126

UN Doc. A/66/10 (2011) (note 3), 261.

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sive task to become more sophisticated and on the essence of its work is reminding States what they have already agreed to in previous principles and instruments. What is concerning is the lack of discussion about how to persuade States to direct humanitarian assistance to the group at most risk in the aftermath of natural disasters – women. The need to specifically highlight the specific protection needs and assistance rights that women have in the event of natural disasters is a responsibility that the ILC and States are yet to fulfil. Pursuing this approach might also open opportunities for more creative thinking about the protection of persons in the event of natural disasters that obviates the need to level distracting, no doubt well-intentioned, arguments relating to R2P.

State Responsibility for Human-Induced Environmental Disasters REBECCA M. BRATSPIES(

ABSTRACT: The transboundary nature of our most pressing environmental problems, like climate change, pollution, and loss of biodiversity underscore the international dimensions of environmental problems. It also highlights a serious gap in international law – the current inability of international law to reach private conduct causing environmental harm. This article suggests that State responsibility might be a critical component of international environmental governance. In particular, it articulates a vision of State responsibility that encompasses the failure to regulate private conduct within a State’s borders. Such an interpretation of State responsibility can help break us out of dilemmas created by an outdated vision of sovereignty. If so, State responsibility may offer some exciting new possibilities for resolving thorny environmental puzzles. KEYWORDS: Sovereignty, State Responsibility, Sustainability, Disaster, InternationallyWrongful Acts, Environment, Fukushima, Deepwater Horizon, Trail Smelter

I. Introduction Sovereignty is increasingly viewed as encompassing a dual set of State responsibilities: an external duty to respect the sovereignty of other States, and an internal duty to respect the dignity and basic rights of all people within the State.1 Sovereignty as responsibility has at least arguably become the minimum content of good international citizenship.2 Among the most prominent components of this vision of sovereignty is ( Professor, the City University of New York School of Law, Director of the Center for Urban Environmental Reform. This article benefitted from discussions at the Idaho Roundtable on International Governance: Crossing Governance Gaps to Protect the Environment. Special thanks to Dean Michelle Anderson, Anastasia Telesetsky, Elizabeth Burleson and Hari Osofsky for their valuable feedback. 1 The International Commission on Intervention and State Sovereignty (ICISS), Report: The Responsibility to Protect (2001), para. 1.35, available at: http://responsibilitytoprotect.org/ICISS%20 Report.pdf (accessed on 28 November 2012). 2

Ibid.

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the State responsibility to regulate their territories adequately in order to prevent transboundary environmental disasters.3 This responsibility is both hoary and modern: rooted in the very architecture of the Westphalian moment itself, but reinforced by post-Cold War innovations in State responsibility. It bridges the divide between positive and customary law: both specified in treaty obligations, and articulated through opinio juris. In an era in which the most powerful actors are increasingly transnational enterprises rather than States, and a willingness to tolerate pollution is pitched as a competitive advantage,4 the question arises whether State responsibility is a viable approach to responding to human-created transboundary environmental disasters. With that question as an ever-present backdrop, this article maps the terrain of State responsibility as it impacts human-created environmental disasters. After first identifying what constitutes such a disaster in Section II. Section III then makes the case that State responsibility for transboundary harms derives from the very structure of international law itself. Then, drawing from the emerging Responsibility to Protect (R2P), and the Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Draft Articles), Section IV of this paper lays out a modern vision of State responsibility, focusing on the emerging responsibility to create a legal system capable of controlling private behaviours. Section V identifies environmental obligations that might be good candidates for invocation of State responsibility. Section VI surfaces some of the main barriers to successful resort to State responsibility in the environmental context, and offers some suggestions for overcoming those barriers. Finally, Section VII concludes with an assessment of the strengths and weaknesses of State responsibility as an approach for addressing climate change in a world with powerful non-State actors.

Trail Smelter Arbitration (United States v. Canada), Arbitral Award of 16 April 1938/11 March 1941, Reports of International Arbitral Awards (RIAA) III, 1905; Restatement (Third) of Foreign Relations of the United States, The American Law Institute (1987) (Restatement (Third)), § 601; Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14/REV.1 (1972). 3

As Vice-President and Chief Economist of the World Bank, Lawrence Summers perfectly captured this perspective when he wrote: “I think the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable and we should face up to that,” see New York Times, Furor on Memo at World Bank, 7 February 1992, available at: http://www.nytimes.com/1992/02/07/business/furoron-memo-at-world-bank.html (accessed on 28 November 2012). 4

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II. Defining Human-Created International Environmental Disasters We live in a rapidly changing, rapidly deteriorating world.5 Globalised patterns of production and consumption mean that environmental disasters happen on a bigger scale. Climate change infuses questions surrounding international law’s response to human-made environmental disasters, with a new urgency: what duties does international law impose on States to take steps to avoid environmental disasters with transboundary ramifications; how might States breach those responsibilities; and, should a human-made environmental disaster ensue, what remedies and remediation will be appropriate? While the looming climate crisis is perhaps the most visible face of these emerging challenges, climate change is hardly the only sustainability crisis. Indeed global civil society is buffeted at all sides by a developing food crisis;6 the ongoing economic and financial crisis;7 and a burgeoning human population soon expected to top ten billion;8 not to mention devastated ecosystems;9 rapid urbanisation;10 and relentlessly increasing consumption.11 For a list of the most pressing challenges, see Achim Steiner, Remarks at the opening of the World Congress on Justice, Governance and Law for Environmental Sustainability – Environmental Sustainability, Justice, Governance, & Law: Challenges and Opportunities, 18 June 2012, available at: http:// www.unep.org/newscentre/Default.aspx?DocumentID=2690&ArticleID=9176&l=en (accessed on 28 November 2012). 5

6 See Food and Agriculture Organization of the United Nations, The State of Food Insecurity in the World 2011: How does international price volatility affect domestic economies and food security? (2011), available at: http://www.fao.org/docrep/014/i2330e/i2330e.pdf (accessed on 28 November 2012).

United Nations (UN), The Global Economic and Financial Crisis: Regional Impacts, Responses and Solutions (2009), available at: http://www.un.org/regionalcommissions/crisispublication.pdf (accessed on 28 November 2012). 7

8 Department of Economic and Social Affairs of the United Nations (DESA), Population Division, World Population Prospects: The 2010 Revision, Highlights and Advance Tables, Working Paper No. ESA/P/WP.220 (2011), xvi, Figure 1, available at: http://esa.un.org/wpp/Documentation/pdf/WPP 2010_Highlights.pdf (accessed on 28 November 2012).

Millennium Ecosystem Assessment, Ecosystems and Human Well-being: Synthesis (2005), 1 et seq., available at: http://www.maweb.org/documents/document.356.aspx.pdf (accessed on 28 November 2012). 9

United Nations Population Fund (UNPFA), State of World Population 2007: Unleashing the Potential for Urban Growth (2007), available at: http://www.unfpa.org/webdav/site/global/shared/ documents/publications/2007/695_filename_sowp2007_eng.pdf (accessed on 28 November 2012). 10

11 Preparatory Committee for the United Nations Conference on Sustainable Development, Second Session, Note by the Secretariat: Synthesis report on best practices and lessons learned on the objective

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These environmental harbingers of the emerging Anthropocene12 do not respect arbitrary geo-political boundaries drawn on human maps. Instead, they follow a biogeophysical logic of their own. The mismatch between our political boundaries and the scale of environmental harms has prompted those tasked with responding to these problems to label them ‘transboundary’. Transboundary is an apt term in two senses – conventionally, transboundary is used to mean crossing one or more international boundaries. Human-induced environmental disasters certainly do that. Given that air and water cross national boundaries, it is all too easy for one country’s tolerance of pollution or slipshod industrial practices to become another country’s environmental problems. Industrial accidents and other environmental disasters frequently impair the environment outside of the territory of the State where the damaging activity occurs. But, these disasters are transboundary in an additional sense – they transcend the notion of boundaries altogether. Environmental disasters have the power to erase what we like to think of as the pre-existing boundaries of our world: boundaries between biological and physical processes; between geographically and temporally distant actors; and between spheres of human activities. Ultimately, transboundary environmental harms also transcend the psychological boundaries we create to separate the past, the present and the future. International law was relatively slow to recognise the significance of transboundary environmental problems and to view them as appropriate grounds for international law-making.13 The growing litany of human-induced environmental disasters eventually forced recognition of transboundary environmental harms as a threat to the very heart of sovereignty and international law.14 Hampered by its Westphalian roots, interand themes of the United Nations Conference on Sustainable Development, 21 January 2011, UN Doc. A.CONF.216/PC/8 (2011), para. 48, available at: http://www.unescap.org/esd/environment/rio20/ pages/Download/ACONF216PC8-En.pdf (accessed on 28 November 2012). 12 A growing number of scientists believe that we have entered the Anthropocene, a new geological epoch in which the intensity and effects of human activities dwarf the geological or physical forces that dominated earlier millennia. See, e.g., Jan Zalasiewicz/Mark Williams/Will Steffen/Paul Crutzen, The New World of the Anthropocene, Environmental Science & Technology 44 (2010), 2228; Paul J. Crutzen, Geology of Mankind, Nature 415 (2002), 23.

See Richard B. Bilder, The Settlement of Disputes in the Field of the International Law of the Environment, Recueil des Cours 144 (1975), 139. 13

14 See Günther Handl, Sovereignty and the Problem of Transnational Pollution, American Journal of International Law (AJIL) 69 (1975), 50.

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national law responded largely through politically-bounded attempts to negotiate express agreements between sovereign States. The steady accretion of treaties and soft law agreements has produced detailed governance regimes for individual environmental problems. Yet, this traditional international law model of agreements between sovereign States has failed spectacularly to address this growing litany of environmental woes. Despairing of this process, environmental advocates increasingly look for additional international law tools beyond treaty negotiation. The two alternative approaches invoked most frequently are reframing human-induced environmental disasters as breaches of individual human rights by States or other individuals (including juridical persons)15 or as criminal actions.16 Both approaches are explored thoroughly in scholarly literature, and both find at least some traction in opinio juris. This essay directs attention to a less-explored middle ground – the possibility of invoking the doctrine of State responsibility17 to productively shape behaviours of both public and private environmental actors. Perhaps the most established principle in international environmental law is that States have a duty not to cause transboundary environmental harm. The scope and contours of this duty are increasingly an issue, particularly in light of high profile transboundary environmental disasters. The 2010 British Petroleum (BP) Deepwater Horizon disaster prompted speculation about the possibility that the hundreds of millions of gallons of oil could devastate sensitive coral reefs and commercial fisheries

15 In the run-up to the 2012 Rio+20 Summit, the Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Environmental Project (UNEP) issued a joint report titled Human Rights and the Environment, 19 June 2012, available at: http://www.unep.org/environmental governance/Portals/8/JointReportOHCHRandUNEPonHumanRightsandtheEnvironment.pdf (accessed on 28 November 2012). In July of 2012, the UN Human Rights Council (UNHRC) appointed John Knox as its Independent Expert on Human Rights and the Environment.

See Polly Higgins, Eradicating Ecocide: Exposing the Corporate and Political Practices Destroying the Planet and Proposing the Laws Needed to Eradicate Ecocide (2010). In 2012, the United Nations Interregional Crime and Justice Research Institute (UNICRI) hosted a conference on this theme. See for further information UNICRI, International Conference on Environmental Crime: Current and Emerging Threats, 29–30 October 2012, available at: http://www.unicri.it/emerging_crimes/environmental/ conference.php (accessed on 28 November 2012). 16

17 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. (ILC Draft Articles).

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throughout the Caribbean,18 or might even get caught up in the Loop Current and sweep into the Atlantic Ocean.19 Japan’s 2011 Fukushima meltdown raised similar set of questions about the international components of environmental disasters.20 These transboundary human-created environmental disasters underscore the international dimensions of environmental disasters. They also highlight a serious gap in international law – despite clear indications in each of these cases that the State had failed in its enforcement and oversight activities, not one of these disasters resulted in the successful invocation of State responsibility. This insight is not new. In the aftermath of Chernobyl, for example, there was clear evidence that the Soviet Union had acted negligently, and in violation of its own laws.21 That same year, a massive toxic spill at a Sandoz warehouse in Schweizerhalle, Switzerland, contaminated drinking water supplies in West Germany, France and the Netherlands, killing fish and turning a 70 kilometre stretch of the river an eerie, unnatural red.22 None of

The Telegraph, 11 June 2010, BP Oil Spill: Caribbean Islands Fear Slick Will Reach Pristine Beaches, available at: http://www.telegraph.co.uk/finance/newsbysector/energy/oilandgas/7819728/BPoil-spill-Caribbean-islands-fear-slick-will-reach-pristine-beaches.html (accessed on 28 November 2012). 18

19 Agence France Presse (AFP), 19 May 2010, Loop Current Pulls BP Oil Spill Toward Florida and Cuba, available at: http://www.france24.com/en/20100519-oil-spill-loop-current-heading-florida-cubagulf-mexico-bp%27deepwater-horizon (accessed on 28 November 2012). 20 Steve Herman, Voice of America, 1 April 2012, New Data Shows Fukushima Radiation Moved Rapidly Out into Pacific Ocean, available at: http://www.voanews.com/content/new-data-showfukushima-radiation-moved-rapidly-out-into-pacific-ocean-145813175/180228.html (accessed on 28 November 2012); John Blackstone, CBS News, 29 May 2012, Toxic Japanese Debris Piles Up on Alaska’s Shore, available at: http://www.cbsnews.com/8301-18563_162-57443283/toxic-japanese-debris-piles-upon-alaskas-shore/ (accessed on 28 November 2012); AFP, Japan Tsunami Debris Starts to Hit US Coasts, 26 December 2011, available at: http://www.youtube.com/watch?v=hYOJEF6mHUw&feature= BFa&list=PLB798C95B2004BB5D&lf=g-all-a (accessed on 28 November 2012); International Pacific Research Center, Press Release, Where Will the Debris from Japan’s Tsunami Drift in the Ocean?, 5 April 2011, available at: http://iprc.soest.hawaii.edu/news/press_releases/2011/maximenko_tsunami_debris. pdf (accessed on 28 November 2012). For a discussion of the inadequacies of the international legal disaster management regime, see Dirk Hanschel, Prevention, Preparedness and Assistance, Concerning Nuclear Accidents – Effective Legal Framework or Patchwork?, German Yearbook of International Law (GYIL) 55 (2012), 217. 21 For a discussion of State responsibility in the context of the Chernobyl disaster, see Linda Malone, The Chernobyl Accident: A Case Study in International Law Regulating State responsibility for Transboundary Nuclear Pollution, Columbia Journal of Environmental Law 12 (1987), 203, 207. 22 Paul Lewis, New York Times, Huge Chemical Spill In the Rhine Creates Havoc in Four Countries, 11 November 1986, available at: http://www.nytimes.com/1986/11/11/world/huge-chemical-spill-inthe-rhine-creates-havoc-in-four-countries.html (accessed on 28 November 2012). Sandoz Report, Safety and Environmental Protection at Sandoz Ten Years After Schweizerhalle (1996), 8.

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the affected States asserted the doctrine of State responsibility against Switzerland or the Soviet Union.23 Yet, both Chernobyl and the Sandoz spill seemed like logical situations in which to invoke the doctrine of State responsibility. In Chernobyl, the State was directly at fault through its mismanagement of the nuclear facility.24 Although the proximate cause of the Sandoz spill was private negligence, the resulting environmental disaster materialised because the State allowed the chemicals involved to be improperly stored, in a warehouse with inadequate safety installations. Both States had clear obligations under international law with regard to the facilities in question. At Chernobyl, the Soviet Union clearly failed to live up to its duties under customary international law25 and under the Vienna Convention on Civil Liability for Nuclear Damage.26 Similarly, by failing to require appropriate safety precautions in the Sandoz storage facility, Switzerland failed to abide by Article 7 of the Rhine Chemical Convention which obliged it to “take all the legislative and regulatory measures guaranteeing that the storage of Annex I and II substances shall be done in a way that there is no danger of pollution for the waters of the Rhine.”27 In 2000 Romania’s Baia Mare spill raised similar questions. An industrial accident sent highly polluted water gushing into Somes, Tisza, and Danube rivers,28 devastated local fishing economies,29 and jeopardized the water supply for millions of people in 23

Lewis (note 22); Sandoz Report (note 22), 8.

24

Clearly, the Cold War political stalemate was also a key factor in this failure of State responsibility.

25

Malone (note 21), 213 et seq. (discussing sources).

Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963, UNTS 1063, 266 (entered into force on 12 November 1977). 26

27 Convention on the Protection of the Rhine Against Chemical Pollution of 3 December 1976, reprinted in: International Legal Materials (ILM) 16, 242 (entered into force on 1 February 1979). The question remains as to whether this principle holds true regardless of whether the facility was in compliance with municipal law. Boiled down to its essence the question is whether there should be some international standard of reasonableness that applies to regulatory regimes. 28 UNEP/Office for the Coordination of Humanitarian Affairs (OCHA), Report Summary, The Cyanide Spill at Baia Mare, Romania: Before, During and After (2000), 3, available at: http://archive. rec.org/REC/Publications/CyanideSpill/ENGCyanide.pdf (accessed on 28 November 2012).

Fred Bridgland, Sunday Herald, 20 February 2000, 13, Nothing Is Alive. Zero; Eszter Számadó/ AFP, Cyanide Spill is Ecological Crisis: Hungarian Official, 12 February 2000; Aaron Schwabach, From Schweizerhalle to Baia Mare: The Continuing Failure of International Law to Protect Europe’s Rivers, Virginia Environmental Law Journal 19 (2000), 431. 29

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Hungary, Slovakia, Ukraine and Yugoslavia. The spill’s environmental toll was staggering.30 Romania had assumed clear treaty obligations to “take all appropriate measures […] to prevent, control, and reduce pollution of waters causing or likely to cause transboundary impact”31 and to minimise the risk of accidental pollution. The spill showed Romania’s regulatory apparatus to be woefully inadequate.32 The combination of private negligence and State failure to regulate again meant that a detailed international environmental legal regime failed to serve its environmentally protective purpose. And, yet again, the doctrine of State responsibility was not asserted by the States suffering harms from this human-induced, transboundary environmental disaster. These disasters focused attention on whether State responsibility offers a viable approach for getting at State failure to regulate private actors, and raised questions about the appropriateness of imposing State responsibility for the actions primarily undertaken by non-State actors. Among the conclusions: State responsibility rests not on vicarious liability for the actions of private actors, but on the State’s own breach of duty – its failure to adequately regulate conduct within its borders in accordance with its treaty obligatins. There is certainly no dispute about the underlying substantive proposition: activities undertaken entirely within one nation's territory can have devastating effects on

Simon Mann, Sydney Morning Herald (Australia), 10 February 2000, 8, Angry Hungary Demands Compensation (citing a statement of Hungarian Interior Ministry official or Horvath). 30

31 Arts. 2.2, 2.2(a) of the United Nations Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes of 17 March 1992, reprinted in: ILM 31, 1312 (UNECE Watercourses Convention) (entered into force on 6 October 1996). Romania became a party to this convention in 1995. Hungary, Slovakia and Ukraine are also parties. The fourth State affected by the Baia Mare spill, Yugoslavia, is not a party. Thus, Romania breached no treaty obligation to Yugoslavia.

UNEP/OCHA (note 28), 4; Schwabach (note 29), 445. Among its key failures: Romania did not require adequate containment structures for mine tailings damsit did not require monitoring of water build-up behind the tailings dam; and it did not require appropriate emergency planning to prevent overflow or collapse when the build-up reached critical levels. These regulatory deficiencies meant that even if the mine operator had been operating within its permit, its activities would have still posed the risk of an environmental catastrophe. And, there were allegations that the mine operator – Aurul SA, a joint venture between the Romanian government and the Australian firm Esmerelda – had ignored government warnings about the potential risks. See Simon Mann/David Reardon/Mark Metherell, Sydney Morning Herald (Australia), 11 February 2000, 7, Warnings ‘Ignored’ Before Cyanide Spill. 32

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the territory of neighbouring States or on global common areas, such as the atmosphere or the high seas.33

III. State Responsibility for Transboundary Harm is Inherent in the Architecture of International Law Historically, international law focused almost exclusively on the actions of States. A State’s primary responsibility under this approach to international law was to live up to the commitments it voluntarily assumed toward other States or to the international community.34 State responsibility was an outward obligation, reflecting the notion that international law applied only between States and not within each State. Thus States had internationally-recognised responsibilities to ambassadors and foreign soldiers, but not necessarily international obligations to their own citizens. Article 2 (7) of the United Nations Charter (UN Charter) to some extent reflects this vision, providing explicitly that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any [S]tate.”35 The lynchpins for this vision of international law were the principles of sovereign equality of States, and non-intervention into the internal affairs of a State. From the intersection of these two principles, emerged the basic contours of State responsibility for transboundary environmental harm. For at least a century, scholars have recognised that sovereignty finds its limit at the point where its exercise affects the territorial sovereignty and integrity of another State.36 Consequently, the scope for discretionary

33 Stephen L. Kass/Michael B. Gerrard, New York Law Journal, 25 October 1991, International Impact Assessment, 3.1. 34 In the Phosphates in Morocco Case, for example, the Permanent Court of International Justice (PCIJ) affirmed that when a State commits an internationally wrongful act against another State international responsibility is established “immediately as between the two States.” See PCIJ, Phosphates in Morocco, Judgment of 14 June 1938, Series A/B, No. 74, 28, para. 48. 35

Art. 2 (7) of the Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

For example, nearly a century ago Lassa Oppenheim wrote that “[….] a State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State.” (Lassa Oppenheim, International Law: A Treatise (1912), 220). 36

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action arising from the principle of sovereignty is determined by ‘good neighbourliness’ or sic utere tuo ut alienum non laedas. It was the 1941 Trail Smelter Arbitration that first recognised this principle as a key component of State responsibility.37 The Trail Smelter Arbitration settled a dispute between the United States (US) and Canada over transboundary pollution flowing from British Columbia into the western US. The Arbitration Panel concluded that international law imposes an affirmative obligation on States not to allow pollution to cross its borders, declaring that: under the principles of international law […] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.38

Thus, States have a substantive obligation not to use or allow their territory to be used in a fashion that causes harm to the territory of other States or in areas beyond national jurisdiction. This ‘do no harm’ obligation, which flows directly from the principle of sovereign non-interference, has been at the core of customary international environmental law since its inception.39 The development of international law over the seven decades since the Trail Smelter Arbitration only confirms this ‘do no harm’ principle. In 1949, the International Court of Justice (ICJ) affirmed that no State may utilise its territory contrary to the rights of other States.40 A decade later, the Lac Lanoux Arbitration under37

Trail Smelter Arbitration (note 3).

Ibid., 1965. Critics point out that the Trail Smelter Arbitration did not actually decide the question of State responsibility . This contention is factually true, As the Tribunal stated: “The controversy is between two Governments involving damage occurring in the territory of one of them (the United States of America) and alleged to be due to an agency situated in the territory of the other (the Dominion of Canada), for which damage the latter has assumed by the Convention an international responsibility” (see ibid., 1912). However, that observation only underscores the nature of the obligation at issue as customary law. Both – Canada and the US – believed that Canada’s actions entailed State responsibility, and acted accordingly. The very essence of opino juris is captured in those twin elements: State behaviour, coupled with the belief that the behaviour was mandated by international law. 38

For a different take, see Daniel Bodansky, Customary (and not so Customary) International Environmental Law, Indiana Journal of Global Legal Studies 3 (1995), 105 (suggesting that transboundary environmental harm, as measured by State practice, is more the norm than the exception.) 39

ICJ, Corfu Channel (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, 4, 22 (“every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”). 40

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scored that pollution of boundary waters may violate the rights of other States.41 In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ declared that […] the existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.42

The Court reiterated this statement in its judgment concerning the GabčikovoNagymaros Project.43 Most recently in a dispute between Argentina and Uruguay, the ICJ reiterated the customary law obligation that States “ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control.”44 This ‘do no harm’ obligation applies across the board – even when the underlying conduct is legal under international and domestic law. Although first articulated in the decisions of international tribunals, it has woven its way into the very fabric of international law. For example, Principle 21 of the Stockholm Declaration announced that “States have […] 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.”45 The UN General Assembly (GA) not only endorsed the Stockholm Declaration,46 it also declared that the principles the Declaration articulated with regard to State responsibility “lay down the basic rules governing this matter.”47 Twenty years later, the Rio Declaration reaffirmed this principle,48 and most recently, the Rio+20 Out41

Affaire du Lac Lanoux (Spain v. France), Arbitral Award of 16 November 1957, RIAA XII, 281.

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 29. 42

ICJ, Gabčikovo-Nagymaros Project (Hungary v. Slovkakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 53. 43

ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 14, para. 193. 44

45

Principle 21 of the Stockholm Declaration (note 3).

46

GA Res. 2994 (XXVII) of 15 December 1972.

47

GA Res. 2996 (XXVII) of 15 December 1972.

Principle 2 of the Rio Declaration on Environment and Development of 12 August 1992, reprinted in: Report of the United Nations Conference on Environment and Development, UN Doc. A/ CONF.151/26/REV.1 (vol. I), Annex I. 48

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come Document, again reiterated support for this basic international commitment.49 This ‘do no harm’ principle was later codified as positive international treaty law in the 1982 United Nations Convention on the Law of the Sea (UNCLOS)50 and the Convention on Biological Diversity (CBD).51 Between them, these two conventions count virtually all the States of the world as contracting parties. State responsibility to prevent transboundary environmental harm is thus well-established under international law.

IV. (Post-)Modern Developments in State Responsibility States may have a duty to ‘do no harm’, but the contours of that duty can be frustratingly hard to pin down.52 Without a defined threshold for when transboundary pollution becomes significant, thereby triggering State responsibility, the vagueness of this obligation can undermine attempts to apply it. Also with the duty to take precautionary action – under what circumstances and to what degree is this obligation triggered? With those questions unanswered, even States that acknowledge the duty can largely do what they choose and then claim that their actions are consistent with customary international law. Other conventionally acknowledged international environmental obligations suffer from a similar indeterminacy. Principle 17 of the Rio Declaration explicitly provides that […] environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.53

United Nations Conference on Sustainable Development, Outcome Document: The Future We Want, 20–22 June 2012, GA Res. 66/288 of 11 September 2012, Annex, paras. 14, 15, 227. 49

Article 194 (2) of the United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 13 (UNCLOS), obligates States to “ensure that activities under their jurisdiction and control are so conducted as to not cause damage by pollution to other States and their environment”. 50

51

Art. 3 of the Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79 (CBD).

John H. Knox, The Flawed Trail Smelter Procedure: the Wrong Tribunal, the Wrong Parties, and the Wrong Law, in: Rebecca M. Bratspies/Russell A. Miller (eds.), Transboundary Harms In International Law: Lessons From the Trail Smelter Arbitration (2005). 52

53

Principle 17 of the Rio Declaration (note 48).

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UNCLOS, Article 206 echoes this requirement, articulating State responsibility to conduct environmental assessments of the potential effect on the marine environment of pollution-threatening activities.54 This State responsibility is hedged by a number of judgment calls – a State must have ‘reasonable grounds’ for believing that the activity will cause ‘substantial pollution’ or ‘significant harm’. Even then, the obligation is only to assess ‘as far as practicable’.55 Notwithstanding the ICJ’s recent decision recognizing, obligation to prepare an Environmental Impact Assessment (EIA) as customary law, the contours of that responsibility are inordinately complex. For example, the US conducted an EIA before approving offshore drilling. However, as the recent BP Deepwater Horizon disaster revealed, that EIA was replete with material failures. By failing to adequately consider environmental impacts, this EIA violated domestic law, and arguably breached the international obligation to implement a domestic legal regime capable of protecting the marine environment. Thus, a State’s failure to adequately regulate conduct within its territory that caused harm outside its territory would be a context in which State responsibility might arise. Over the past decade, the two primary innovations concerning State responsibility under international law, the R2P, and the ILC Draft Articles, both underscored that a State’s duty to regulate internally is a critical component of State responsibility under international law. The next two sections take these emerging State responsibility innovations in turn, and explore how they affirm and reinforce a State duty to adequately regulate within its territory.

A. Internal State Responsibility: The Responsibility to Protect

The Peace of Westphalia defined an international legal system between theoretically equal States with exclusive sovereignty over defined territories.56 Under this system, States are the primary actors on the stage of international law – States create international law, and States owe other States the responsibility to meet their interna54

Art. 206 of the UNCLOS (note 50).

Art. 206 of the UNCLOS (note 50). The MOX Plant Dispute highlighted just how vague these obligations are in practice. 55

56

Leo Gross, The Peace of Westphalia, AJIL 42 (1948) 20, 28 et seq.

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tional obligations. States thus are the only actors capable of holding other States accountable for breaches of international legal obligations. This focus on States left the individuals through whom States inevitably acted almost entirely outside the purview of international law. Yet, the Nazi atrocities in Europe and the Japanese atrocities in Asia during World War II underscored the need for a broader vision of State responsibility. The Nuremburg and Tokyo trials marked a sharp break with the State-centred vision of international law – puncturing the notion that States had international responsibilities only to each other. Instead, the trials established that individuals could be held responsible for committing grievous atrocities and gross violations of human rights.57 While the trials focused on individual conduct that breached the most basic precepts of civilised society, the defendants had been acting on behalf of the State. In rejecting the defence of ‘following orders’ these tribunals made the broader point that sovereignty was not a shield that States could invoke to hide internal conduct from international review. The responsibility recognised in these trials was the personal criminal responsibility of individuals, rather than of the State per se. These trials nevertheless marked the beginning of a much more expansive conception of State responsibility. The Universal Declaration of Human Rights (UDHR),58 adopted alongside the UN Charter, began the process of redefining sovereignty to include responsibilities to citizens and inhabitants. UN Member States committed themselves to “universal respect for observance of human rights and fundamental freedoms.”59 From this starting point, the burgeoning field of human rights articulated a growing list of basic rights that States were required to respect, and were responsible for ensuring. As the GA reiterated in 1998, “each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms […].”60

ILC, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Yearbook of the International Law Commission (YBILC) 1950, vol. II, para. 97. 57

58

Universal Declaration of Human Rights, GA Res. 217 (III) of 8 December 1948.

59

Ibid., Preamble.

Art. 2 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res. 53/144 of 9 December 1998. 60

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The trajectory has been toward articulating an internationally agreed-upon set of State responsibilities, including the responsibility to respect basic human rights within the State. Thus, human rights set new standards of conduct for States and individuals, in a context of greatly increased expectations. And, in 2005, the GA announced its fullest articulation yet of the State duty toward its inhabitants when it unanimously embraced the R2P.61 Under the R2P, every State has the primary responsibility to protect its inhabitants from “genocide, war crimes, ethnic cleansing, and crimes against humanity.”62 The international community has a responsibility to encourage and assist States in fulfilling this responsibility.63 Alongside the articulation of a State’s responsibility to protect its population, and the international community’s responsibility to support States in fulfilling this responsibility, there is a third responsibility – the concomitant recognition that when a State was unwilling or unable to meet its primary responsibility to protect, that responsibility must be borne by the broader community of States.64 In other words, if a State fails in its responsibility, it then becomes the responsibility of the international community to take “timely and decisive action”65 to protect that States’ population in accordance with Chapter VII of the UN Charter. The R2P thus has three pillars. These three pillars of responsibility are of equal importance,66 and together they create an international edifice. States have the primary role, with the international community in a largely supportive role. A key aspect of this first R2P pillar is the State responsibility to ensure that national legislation satisfies core international standards.67 State responsibility is thus, at root, the responsibility of each State to have domestic laws capable of achieving internationally-identified goals. The second R2P pillar emphasises the international responsibility of cooperation, capacity-building and prevention – in short, the international responsibility to build the rule of law 61

2005 United Nations World Summit Outcome, GA Res. 60/1 of 24 October 2005, paras. 138 et seq.

62

Ibid., para. 138.

63

Ibid.

64

Ibid., para. 139.

Report of the UN Secretary General, Implementing the Responsibility to Protect, 12 January 2009, UN Doc. A/63/677 (2009), para. 11. 65

66

Ibid., para. 12.

67

Ibid., para. 17.

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around R2P. This is a very familiar role for the international community. However, by specifically acknowledging that the R2P flows directly from the nature of sovereignty itself, the R2P also marks the inflection point at which non-intervention yields to the international responsibility to protect.68 The UN Security Council (SC) recently invoked the third pillar of the R2P to adopt a no-fly zone over Libya,69 marking a further expansion of the concept of State responsibility. Thus, in 2012, international law clearly recognised that States have a responsibility to protect their own inhabitants from serious violations of international humanitarian and human rights law, and that the community of States also has that responsibility to the inhabitants of a particular State if the State in question cannot or will not live up to its responsibility. Right now, this array of responsibility sheds little light on the responsibility of States for human-induced environmental disasters. The original 2001 R2P Report70 had proposed including environmental disasters as possible triggers for international community intervention if a State failed in its responsibility to protect its population.71 However, that provision was not included in the 2005 Outcome Document adopted by the GA.72 Thus, the Outcome Document neither articulates a State responsibility to protect inhabitants from environmental disasters, nor an international right to intervene when a State fails to do so. This result owed much to historically-rooted tensions, with States that had been victims of colonisation intensely suspicious of attempts by former colonial powers to meddle in domestic affairs. While those concerns are understandable, it was disappointing for many environmental advocates that the Outcome Document did not recognise a State responsibility to protect from environmental disasters, whether human-induced or otherwise. This omission of environmental disasters from the R2P was almost immediately tested when Cyclone Nargis devastated Burma in 2008.73 With reports of more than In 2006, the UN Security Council (SC) reaffirmed its commitment to the R2P, emphasizing the Council’s determination to protect civilians, see SC Res. 1674 of 26 April 2006. 68

69

See SC Res. 1973 of 17 March 2011.

70

ICISS Report (note 1).

71

Ibid., paras. 4.19, 4.20.

72

See Sarah E. Davies, Natural Disasters and the Responsibility to Protect, GYIL 55 (2012), 4.

The most extensive collection of news reports relating to this disaster can be found at Multidisciplinary Center for Earthquake Engineering Research (MCEER), Myanmar (Burma) Cyclone Nargis 73

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100,000 dead, and millions displaced, Burma’s military dictatorship was accused of failing to adequately respond and protect its citizens.74 UN Secretary General Ban KiMoon expressed “deep concern and immense frustration at the unacceptably slow response to this grave humanitarian crisis.”75 Spurred by the French Foreign Minister, there were calls to invoke the R2P to allow foreign aid workers to circumvent the Junta and intervene on behalf of flood victims.76 In a stirring New York Times op-ed, the Brooking Institute’s Ivo Daalder argued: “If in this case, when millions of people have been felled by Mother Nature and are let down by their own government, the responsibility to protect principle cannot be invoked, then there is no case where it can.”77 Nevertheless, opposition from China stymied attempts to invoke the R2P, with the SC ultimately rebuffing even a briefing on the potential for invoking the R2P.78 The fact that responding to environmental disasters was not included in the R2P, or that R2P was not invoked to allow foreign intervention in the context of Burma, does not exhaust the possibilities of State environmental responsibility under international law.79 R2P articulated two standards of paramount significance. The more Disaster 2008, available at: http://mceer.buffalo.edu/infoservice/disasters/burma_cyclone.asp (accessed on 2 December 2012). 74 New York Times, 21 May 2008, More Shame on the Burmese Junta, available at: http://www. nytimes.com/2008/05/21/opinion/21iht-edburma.1.13089665.html (accessed on 28 November 2012). 75 Security Council Report, Update Report No. 4: Myanmar, 14 May 2008, available at: http:// www.securitycouncilreport.org/update-report/lookup-c-glKWLeMTIsG-b-4130257.php (accessed on 28 November 2012). 76 Seth Mydans, New York Times, 8 May 2008, Myanmar Faces Pressure to Allow Major Aid Effort, available at: http://www.nytimes.com/2008/05/08/world/asia/08myanmar.html (accessed on 28 November 2012). Bernard Kouchner, the French Foreign Minister, was a leading voice for invoking the responsibility to protect to justify post-cyclone intervention in Burma, see Asia-Pacific Center for the Responsibility to Protect, Cyclone Nargis and the Responsibility to Protect, Myanmar/Burma Briefing No. 2, 16 May 2008, document on file with author.

Ivo Daalder/Paul Stares, New York Times, 13 May 2008, The UN’s Responsibility to Protect, available at: http://www.nytimes.com/2008/05/13/opinion/13iht-edaalder.1.12841976.html (accessed on 28 November 2012). 77

78 AFP, Security Council Divided on Response to Myanmar Cyclone, 8 May 2008, available at: http://www.terradaily.com/reports/Security_Council_divided_on_response_to_Myanmar_cyclone_ 999.html (accessed on 28 November 2012). Many other Asian States opposed invoking R2P in this context – invoking the specter of Western soldiers fighting in South East Asia again, see Asia-Pacific Center for the Responsibility to Protect (note 76). 79 As recent Alien Tort Claims Act cases have demonstrated, there often is a close overlap between environmental harms and human rights violations. Indeed, allegations in cases brought against Shell for their actions in Nigeria and against Unocal for their actions in Burma emphasize the clear connection

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visible standard, and the one that drove much of the rhetoric surrounding the R2P, is the standard for when international law authorises Security Council-approved intervention into would historically have been considered the domestic affairs of a State. Yet, it is important not to lose sight of the other core standard announced by the R2P – the obligation of States to regulate themselves and their territory to prevent breaches of the R2P. The portion of the R2P most salient for human-created environmental disasters may be the recognition that under international law, States owe their inhabitants a responsibility to use the mechanisms of law and regulation to create appropriate conditions within the State. Moreover, by establishing that States have a bedrock duty to regulate and control conduct within their borders in order to meet agreed-upon normative ends, the R2P reinforces a similar international law development that unambiguously redounds in the transboundary environmental context – the ILC Draft Articles.

B. External Responsibility: The ILC Draft Articles on State Responsibility

In 2001, as part of its obligation to the “progressive development of international law,”80 the International Law Commission (ILC) presented the ILC Draft Articles to the GA for consideration. These ILC Draft Articles enumerate the norms for determining the responsibility of a State for acts ‘attributable’81 to it that constitute “a breach of an international obligation.”82 The ILC Draft Articles thus articulate the secondary rules by which States hold each other accountable for breaches the substantive obligations to which they have committed themselves. During the drafting process, the ILC addressed the question of when conduct within a State that causes harm in another State gives rise to State responsibility. In 2001, the GA commended the ILC for this work and attached the Articles as an between oil production, environmental devastation and international crimes, see United States Court of Appeals for the Second Circuit, Wiwa v. Royal Dutch Petroleum Company, Second Amended Complaint of 14 September 2000, 226 F.3d 88, 532 U.S. 941 (2001) (alleging torture, crimes against humanity and other international crimes); United States Court of Appeals for the Ninth Circuit, John Doe v. UNOCAL, Judgment of 18 September 2002, 395 F.3d 932 (alleging torture, forced labor, rape and murder). The R2P may sweep these hybrid claims within its ambit. 80

Art. 13 (1) of the UN Charter (note 35).

81

Art. 2 (b) of the ILC Draft Articles (note 17).

82

Ibid.

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annex.83 As Koskenniemi pointed out, this treatment “highlights the customary law or ‘structural’ character of State responsibility, of which the Articles now form the authoritative restatement.”84 Since being finalised and endorsed by the GA, the ILC Draft Articles have been referenced by the ICJ,85 and have wended their way into the fabric of international law.86 Although roughly contemporaneous with the R2P Outcome Document, the ILC Draft Articles offer an articulation of State responsibilities that does not invoke Chapter VII of the UN Charter for the vindication of those responsibilities. State responsibility arises when a State commits an international wrongful act.87 That means that in order for responsibility to exist under international law, a State must breach a primary substantive obligation. Responsibility thus entails both a State breach of a substantive obligation to act or refrain from acting in a particular fashion (a primary rule) and an obligation to make reparations when that breach causes injury to another State (a secondary rule). Thus invoking international responsibility in the context of human-induced environmental disasters involves identifying substantive obligations owed to the injured State, demonstrating that those obligations have been breached, and establishing that the breach is attributable to a State or group of States. In adopting this State-based framing, the ILC Draft Articles embraced a relatively traditional, State-centred view of the international legal system. Thus the wording of Article 42 of the ILC Draft Articles reflects a narrow conception of who can invoke State responsibility: “[a] State is entitled as an injured State to invoke the responsibil-

83

GA Res. 59/25 of 12 December 2001.

Martti Koskenniemi, Solidarity measures: State responsibility as a new international order?, British Yearbook of International Law 72 (2001), 337, 341. 84

85

ICJ, Gabčíkovo-Nagymaros (note 43) para. 53.

In 2007, the ILC Draft Articles (note 17) had been referenced 129 times by international courts, tribunals, and other bodies. See Report of the Secretary-General, Responsibility of States for Internationally Wrongful Acts: Compilation of Decisions of International Courts, Tribunals and Other Bodies, 1 February 2007, UN Doc. A/62/62, para. 5. 86

87 “[A]ny violation by a State of any obligation, of whatever origin, gives rise to State responsibility,” see ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, reprinted in: Yearbook of the International Law Commission 2001, vol. II, Pt. 2, Art. 1, Commentary, para. 2 (citing inter alia the Claims of Italian Nationals Resident in Peru Cases; the Dickson Car Wheel Company Case; the International Fisheries Company Case; the British Claims in the Spanish Zone of Morocco Case; the Armstrong Cork Company Case; and the Rainbow Warrior Case).

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ity of another State.”88 Today’s international law begins from the assumption that actors besides States can be subjects of international law. The lack of a role for individuals or non-State actors to invoke State responsibility is indeed a weakness in the ILC Draft Articles. Yet, given that their primary purpose is to increase State compliance with international obligations, this focus on States as rights holders to whom international obligations are owed, and as the actors capable of vindicating those rights makes some sense. Even in our multi-polar world with its myriad of actors, State responsibility has not outlived its usefulness. State responsibility allows a State to pursue a grievanceremedy model and to ask for termination of the injurious conduct. This provides an important complement to parallel initiatives aimed at holding individuals and juridical persons accountable under international and municipal law for their roles in creating environmental disasters. By defining a path for affected States to respond to any particular State’s failure to live up to its international obligations, the ILC Draft Articles provide some welcome standardisation of the secondary rules for State responsibility. As such, the doctrine of State responsibility may offer under-explored possibilities for redressing and preventing transboundary human-induced environmental disaster.

V. Which International Environmental Obligations Might be Candidates for State Responsibility? According to the ILC Draft Articles, every internationally wrongful State action entails the international responsibility of that State.89 A wrongful act is defined as State conduct consisting of an action or omission attributable to the State and constituting a breach of an international obligation of that State.90 A breach of an international obligation is further defined as an act that “is not in conformity with what is required of [the State] by that obligation, regardless of its origin or character.”91

88

Art. 42 of the ILC Draft Articles (note 17).

89

Art. 1 of the ILC Draft Articles (note 17).

90

Art. 2 of the ILC Draft Articles (note 17).

91

Art. 12 of the ILC Draft Articles (note 17).

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Thus, the first question to ask is which State actions or inactions can constitute a breach of international environmental obligations. This can be a very complicated inquiry. Because many forms of environmental damage are inherently transnational, effective international cooperation is critical to any attempt to eliminate, mitigate or respond to these challenges.92 States enjoy a wide margin of appreciation in designing their environmental policy. However, this margin of appreciation is bounded by treaty and by customary international law. Attempts to ground State responsibility in multilateral environmental treaties must walk a fine line. The refusal to fulfil a treaty obligation is an internationally wrongful act – a breach of a primary international norm that can give rise to State responsibility.93 Even though many environmental treaties are long on aspirations but short on specifics, there are some clear treaty obligations that give rise to primary obligations under international law. These international State responsibilities tend to be clustered around State adoption and implementation of appropriate regulatory decision-making procedures and regulatory structures. This clustering makes sense – it centres State responsibility squarely on State behaviours in constructing and administering the regulatory State, thereby avoiding the tricky questions of vicarious State liability for private actors within the State. Because environmental treaties tend to identify procedural obligations that are narrower and more concrete than their relatively amorphous substantive obligations, international discussion of State responsibility might fruitfully focus on procedure. The Convention on Nuclear Safety, for example, begins with the statement that “responsibility for nuclear safety rests with the State having jurisdiction over a nuclear installation”94 and the awareness “that accidents at nuclear installations have the potential for transboundary impacts.”95 In light of these twin recognitions, each State party commits to taking the legislative, administrative and regulatory steps necessary

United Nations High Commissioner for Human Rights, Analytic Study on the Relationship Between Human Rights and the Environment, 16 December 2011, UN Doc. A/HRC/19/34 (2011). 92

According to Art. 26 of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT), “every treaty in force is binding upon the parties to it and must be performed by them in good faith”. 93

94 Convention on Nuclear Safety, 17 June 1994, UNTS 1963, 293 (CNS), Preamble, para. iii.; Hanschel (note 20), 222 et seq. 95

Convention on Nuclear Safety (note 94), Preamble, para. v.

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to implement its responsibilities under the Convention.96 Those steps include, inter alia, adopting a regulatory framework;97 ensuring the responsibility of a license holder;98 assessing and verifying safety;99 and emergency preparedness.100 Similarly, the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)101 creates a set of procedural responsibilities for environmental decision-making that includes “all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.”102 One of the key State responsibilities articulated in this agreement is the responsibility to conduct an EIA prior to making a decision to authorise or undertake a specified set of activities.103 Another is to consult and warn in the face of possible environmental disasters.104 Article 12 of the Convention on the Law of Non-Navile Uses of International Watercourses, imposes a State duty to notify other States of any planned measures which may have a significant adverse effect upon other watercourse States.105 The Convention on the Transboundary Effects of Industrial Accidents106 imposes obligations that include prevention (Article 3 (3)); information exchange (Article 9 (3)); notification (Article 10 (2)); and assistance (Article 12 (1)). The Convention on Non-Navile Watercourses imposes similar obligations.107 The Basel Convention explicitly requires States to regulate pro96

Arts. 4, 7 of the CNS (note 94).

97

Art. 7 of the CNS (note 94).

98

Art. 9 of the CNS (note 94).

99

Art. 14 of the CNS (note 94).

100

Art. 16 of the CNS (note 94).

Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, UNTS 1989, 309 (Espoo Convention). The Convention currently has 45 parties, most of which are European States. 101

102

Art. 2 (1) of the Espoo Convention (note 101).

Art. 2 (3) of the Espoo Convention (note 101). See also, ICJ, Pulp Mills (note 44), para. 77, recognizing the obligation to conduct an Environmental Impact Assessment (EIA) as a general principle of international law. 103

104

Art. 7 (2) of the Espoo Convention (note 101).

Art. 12 of the United Nations Convention on the Non-navigational Uses of International Watercourses, 21 May 1997, reprinted in: ILM 36, 700 (UN Watercourses Convention) (not yet in force). 105

Convention on the Transboundary Effects of Industrial Accidents, 17 March 1992, reprinted in: ILM 31, 1330. 106

107

Arts. 27 and 28 of the UN Watercourses Convention (note 105).

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duction, transportation and disposal of hazardous wastes,108 and to cooperate on the dissemination of information about transboundary movement of hazardous wastes.109 The Bamako Convention imposes virtually identical State obligations.110 These responsibilities echo Principles 18 and 19 of the Rio Declaration which require a State to notify other States of any emergencies likely to produce sudden, harmful, may have a significant adverse transboundary environmental effect.111

A. The Rise of Environmental Erga Omnes Obligations

These multilateral agreements clearly create obligations that flow to other State parties to the agreements. However, the ILC Draft Articles indicate that some of these treaties may do something even more significant. The ILC Draft Articles clearly contemplate that some multilateral environmental agreements may potentially create obligations erga omnes obligations that run to the international community as a whole.112 UNCLOS Article 235, which provides that “States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment,” has been interpreted to create obligations erga omnes.113 The preamble to the Framework Convention on Climate Change affirmed that changes to the earth’s climate are a “common concern of mankind.”114 The Preamble to the Convention on Biological Diversity similarly affirmed that conservation Art. 4 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, reprinted in: ILM 28, 657 (Basel Convention). 108

109

Art. 2 of the Basel Convention (note 108).

Art. 4 of the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, 30 January 1991, reprinted in: ILM 30 ,773. 110

111 Daniel G. Partan, The ‘Duty to Inform’ in International Environmental Law, Boston University International Law Journal 6 (1988), 43, 83, describing the duty to inform “as a legal duty of all states under general international law”. 112 Not all treaty commitments are candidates for obligations erga omnes. See Art. III (2) of the Convention on Supplementary Compensation for Nuclear Damage, 12 September 1997, reprinted in: ILM 36, 1473.

Rüdiger Wolfrum, Purposes and Principles of International Environmental Law, GYIL 33 (1990) 308, 325 et seq. 113

114 United Nations Framework Convention on Climate Change, 10 December 1997, reprinted in: ILM 37, 32. Preamble, para. 1.

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of biodiversity is a common concern of mankind.115 This preambular language, although not itself binding, hints at the erga omnes nature of the obligations at issue. For both treaties, the sections actually articulating State responsibilities are much more general – imposing duties to provide information, to cooperate, and to consider the issues in domestic policy-making when feasible. Reading those general sections in light of the Preamble, it is certainly possible to read the more generalised State responsibilities as laying the groundwork for an obligation erga omnes with regard to the ultimate treaty goals of preventing climate change, or preserving biodiversity. Another route for identifying environmental obligations that are owed erga omnes is through the progressive development of international law. Customary international law results from a general and consistent practice of States followed by them from a sense of legal obligation.116 Obligations that originate in treaties can become customary international law when they are intended for adherence by States generally and are, in fact, widely accepted.117 The ICJ recognised this possibility in its famous Barcelona Traction dicta which stated that that “in view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”118 The ICJ subsequently reaffirmed that some international obligations are owed erga omnes,119 perhaps most clearly in its judgment concerning the Gabčikovo-Nagymaros Project, where the ICJ emphasised “the great significance that it attaches to respect for the environment, not only for States but for the whole of mankind.”120 This vision of environmental obligations owed erga omnes may extend the sweep of certain multilateral environmental agreement provisions beyond their parties.

115

CBD (note 51), Preamble, para. 3.

116

Restatement (Third) (note 3), § 102 (2).

117

Ibid., § 102 (3).

ICJ, Barcelona Traction, Light & Power Co., Ltd. (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970, 3, para. 33. 118

Id., East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports 1995, 90, para. 29; id., Legality of the Threat or Use of Nuclear Weapons (note 42), para. 83; id., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment of 11 July 1996, ICJ Reports 1996, 595, paras. 31 et seq. 119

120

Id., Gabčikovo-Nagymaros (note 43), para. 53.

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International scholars have spent considerable time and effort attempting to figure out which international environmental law principles have solidified into customary law.121 Among the candidates frequently suggested as customary international environmental law include: the ‘polluter pays’ principle, the ‘do no harm’ principle, the ‘precautionary’ principle, and various procedural mechanisms associated with disclosure. The emerging consensus seems to be that there are at least three primary State environmental responsibilities under customary international law: ‘do no harm’ principle,122 the obligation to conduct an EIA before engaging in activities with the potential to cause transboundary environmental harm,123 and the related duty to inform.124 To the extent that environmental treaties do create specific State responsibilities that may be viewed as erga omnes, the ILC Draft Articles create a pathway by which those obligations might be realised. Article 42 of the ILC Draft Articles codifies the rights of injured States to seek redress for internationally wrongful acts.125 While this is an important right, it may be of limited utility in the environmental context because most international dispute settlement mechanisms assume a bilateral dispute with a clear a plaintiff and defendant. Such mechanisms may be less useful when the line between plaintiff and defendant blurs (as in climate change) or when there is no clear plaintiff (as in injuries to the global commons).

See Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development: Legal Principles and Recommendations (1987), reprinted in: Robert J. Munro/Johann G. Lammers (eds.), Environmental Protection and Sustainable Development: Legal Principles and Recommendations adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development (1987). 121

122

See supra, notes 37–51 and accompanying text.

In para. 204 of its Pulp Mills Judgment (note 44) the ICJ announced that “[t]he practice of environmental impact assessment has gained so much acceptance among States that it may now be considered a requirement under general international law […] where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource”. 123

124 One of the earliest manifestations of the duty to inform is GA Res. 2995 (XXVII) of 15 December 1972 on Co-operation Between States in the Field of the Environment. Adopted at the same time that the GA endorsed the Stockholm Declaration, this Resolution refers to the necessity of sharing technical information in order to fulfill the obligations articulated in Principles 21 and 22 of the Stockholm Declaration (note 3). 125

Art. 42 of the ILC Draft Articles (note 17).

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Other parts of the ILC Draft Articles offer some relatively innovative routes out of these dilemmas. Under Article 40, a serious breach of a peremptory norm gives rise to State responsibility under the Articles.126 Obligations owed erga omnes can be vindicated through exercise of a State’s rights under Article 48 (1)(b) to invoke State responsibility if the obligation breached “is owed to the international community as a whole.” Article 48 therefore creates what Koskenniemi calls “solidarity rights.”127 This article allows any State, not only an injured State, to pursue a remedy when the obligation at issue is owed collectively and is either established for the protection of collective interests, or is owed to the international community as a whole.128 Brown Weiss described this article as involving the “progressive development of international law.”129 These solidarity rights are premised on the notion that some agreements create more than the bilateral rights contemplated in the traditional law of treaties, and instead create obligations that each State owes to every other State. Together with the R2P third pillar, the ILC Draft Articles’ recognition of solidarity rights shifts the idea of obligations erga omnes from the periphery to the mainstream of State responsibility. Not only do States owe obligations to the international community as a whole, but under both modern articulations of State responsibility the international community as a whole assumes an overarching responsibility for achieving primary normative ends. Given the transboundary nature of our most pressing environmental problems, like climate change, pollution, and loss of biodiversity, the rise of this kind of meta-responsibility is an important development – one that promises to break international problem-solving out of the limitations imposed by an outdated vision of sovereignty. By embracing sovereignty as responsibility – both internally and externally – the emerging doctrine of State responsibility may offer some exciting new possibilities for resolving thorny environmental puzzles.

126

Art. 40 of the ILC Draft Articles (note 17).

127

Koskenniemi (note 84).

128

Art. 48 of the ILC Draft Articles (note 17).

129

Edith Brown Weiss, Invoking State responsibility in the 21st Century, AJIL 96 (2002), 798, 803.

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VI. Problems and Challenges to Using State Responsibility to Remedy Environmental Harms There can be no question that multilateral environmental treaties can create State obligations, any breach of which would trigger State responsibility. So too, some international customary law obligations clearly implicate State responsibility. However, the attempt to deploy State responsibility to address transboundary environmental harms rapidly poses some fundamental challenges. These challenges raise two basic sets of concerns: those unique to international environmental law and those associated with State responsibility more generally. The following sections takes up each set of concerns, dealing first with the specific challenges associated with invoking State responsibility in the transboundary environmental disaster context, and then with some challenges rooted in inherent problems associated with State responsibility more generally.

A. Limits to Using Environmental Treaties to Define State Responsibility

Overall, multilateral environmental agreements are remarkably silent on how breaches of treaty obligations should be addressed. Even treaties that create specific primary obligations often fail to identify the consequences that should attach to a breach. In many environmental treaties, the legal machinery that would enable compensation, reparation, or sanctions is entirely absent. Instead these treaties often invite State parties to cooperate in the development and implementation of appropriate rules and procedures for determining the consequences for violations of obligations under their provisions. The UN Framework Convention on Climate Change, for example, directs Parties to “seek a settlement through negotiation or any other peaceful means of their own choice.”130 The Montreal Protocol on Substances that Deplete the Ozone Layer imposes detailed substantive international standards for production, import and export of ozone depleting chemicals, but its sole dispute resolution provision merely directs the parties to “consider and approve procedures and

130

Art. 14 (1) of the United Nations Framework Convention on Climate Change (note 114).

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institutional mechanisms for determining non-compliance with the provisions of this Protocol and for treatment of Parties found to be in non-compliance.”131 The 1979 Convention on Long-Range Transboundary Air Pollution explicitly brackets the issue of State responsibility and liability from its coverage.132 Despite identifying a wide-ranging set of State responsibilities (described above), even the Convention on Nuclear Safety devotes virtually no attention to dispute resolution. The lone article addressing the topic, Article 29, merely provides that in the event of a disagreement, “the Contracting Parties shall consult within the framework of a meeting of the Contracting Parties with a view to resolving the disagreement.”133 Not only are there no enforcement mechanisms, or penalties for non-compliance, but the Convention is self-described as “an incentive instrument” that “is not designed to ensure fulfillment of obligations by Parties through control and sanction.”134 Thus, despite a lengthy list of State responsibilities, the treaty provides no guidance whatsoever about how to handle a breach of those responsibilities. This problem is endemic in international environmental law. The Convention on the Use and Protection of Transboundary Water Courses and Lakes, for example, contains fairly specific State responsibilities for creating a regulatory apparatus capable of preventing and ameliorating transboundary environmental harms. The Convention, does not, however, make specific provisions for liability or compensation in the event of transboundary harm. The Article entitled Responsibility and Liability, provides only that “the Parties shall support appropriate international efforts to elaborate rules, criteria and procedures in the field of responsibility and liability” without elaborating any specifics about how to achieve these goals.135 Article 10 provides for consultations “between the Riparian Parties […] at the request of any Party,”136 whereas Article 22

131 Art. 8 of the Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, UNTS 1522, 3. 132

Convention on Long-Range Transboundary Air Pollution, 13 November 1979, UNTS 1302, 217.

133

Art. 29 of the Convention on Nuclear Safety (note 94).

CNS, Background Information, available at: http://www-ns.iaea.org/conventions/nuclear-safety. asp (acessed on 30 November 2012). 134

135

Art. 7 of the UNECE Watercourses Convention (note 31).

136

Art. 10 of the UNECE Watercourses Convention (note 31).

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provides for settlement of disputes “by negotiation or any other means of dispute settlement acceptable to the parties to the dispute.”137 This neglect of dispute resolution mechanisms prompted the call in the Rio Declaration for States to: cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.138

Yet, the failure of States to do so creates a real dilemma – when a treaty itself does not identify consequences associated with a breach, can secondary rules of State responsibility fill that gap? Compounding the problem, most environmental treaty regimes have no tribunal, and measures concerning enforcement of the treaty obligations are few and far between. Thus, international environmental treaties occupy something of a legal netherworld on two fronts – first by creating an important set of international principles, but pairing those principles with relatively few concrete responsibilities; and second by failing to provide a mechanism for resolving disputes that arise under the treaties. The routine failure of environmental treaties to provide a mechanism for resolving common, expected, disputes, seriously diminishes the stature of these agreements as a source of enforceable State responsibilities. In the absence of dispute resolution or remedy provisions, international law remains vague as to the appropriate standards for assigning consequences to a breach. This unsatisfying situation is, at minimum, a complicating factor for attempts to craft remedies for State failure to live up to responsibilities identified in these treaties. However, these limitations do mean that the doctrine of State responsibility has no utility in this context. While indeterminacy may limit the ability of State responsibility to actually deliver remediation and compensation remedies, it does not blunt the force of the doctrine as an orienting mechanism for how international law should respond to transboundary environmental harm.

137

Art. 22 of the UNECE Watercourses Convention (note 31).

138

Principle 13 of the Rio Declaration (note 48).

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Scholars and jurists have offered an additional critique, focused on problems of State responsibility itself. This critique points out that an emphasis on State responsibility elides the role that juridical persons, particularly transnational corporations, play in creating the environmental disasters that give rise to calls for accountability in the first instance.139 This failing has prompted some to dismiss the ILC Draft Articles as ‘old-fashioned’ or ‘overly bureaucratic’ – of limited use in a world peopled by corporations, non-State actors and others outside its purview. This conventional story of marginal utility highlights two problems with using State responsibility as a tool for advancing environmental goals: first, such an approach focuses solely on the behaviour of States, and second, that States are often reluctant to demand redress for wrongful acts. Critics assert that these limitations seriously erode the utility of State responsibility in the context of transnational environmental injuries associated with human-induced environmental disasters. The next two sections take up this critique and suggest some paths beyond the limitations associated with a focus on State action and a presumed State reluctance to level accusations of State responsibility.

1. Solving the ‘State Actor’ Problem In 1953, when the ILC began its work on State responsibility, a State-centric approach to international responsibility may have made sense, indeed in light of the cold war and dominant theories of international law as only governing the relations between States, it may have been inevitable. However, over the ensuing six decades, international law has evolved far beyond this limited State-centric vision. International law now views a host of non-State actors as subjects, and grapples with how these non-State actors fit into a vastly different international legal system. Particularly in light of international law developments concerning individual criminal responsibility for grave breaches of human rights or humanitarian obligations, some perceive this 139 Art. 57 of the ILC Draft Articles (note 17) reserves the question of international organizations, but gives no hint of a plan to address the question of juridical persons. Similarly, the Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3 (ICC Statute), specifically excludes juridical persons.

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exclusive focus on States as an anachronism – a principle out of sync with international legal system of the twenty-first century.140 As the international environmental agenda continues to expand, it sweeps new issues and of new actors within its ambit. New actors enrich international environmental law with new perspectives, interests, experiences and observations. They also create new challenges. Private actors have mastered the art of using sophisticated corporate structures to elude the territorial grasp of States. In the process, these actors have carved out a space that is largely beyond the reach of law, whether international or domestic. A major critique of State responsibility thus emphasises that State responsibility, when unconnected to the responsibility of non-State actors is of limited utility. In particular, it is difficult to see how the doctrine of State responsibility can help bring transnational corporations, the primary actors in many humancreated environmental disasters, to account.141 This mismatch between a State-based system of international law, and the need to place responsibility on and obtain accountability from transnational corporations, is undoubtedly a central critique in all of international law. Transnational economic actors often wield more power than the States with putative authority over them. Recognition of the role of non-State actors, along with the resurgence of the idea of establishing individual criminal responsibility for atrocities raises questions about whether it makes sense to retain the doctrine of State responsibility at all, let alone try to develop additional applications in the context of human-created environmental disasters. The ICJ has repeatedly found that States “remain in all cases responsible for acts attributable to them that violate the rights of other States.”142 As a general rule, the conduct of private parties is not attributable to the State.143 That means that before State responsibility can attach, there must be unlawful conduct attributable to the Philip Allott, State Responsibility and the Unmaking of International Law, Harvard Journal of International Law 29 (1988) 1, 13 et seq. 140

A corollary concern points out that private actors are not only excluded as culprits in a State responsibility scheme, they are also shut out as complaining parties. 141

142 ICJ, Fisheries Jurisdiction (Spain v. Canada), Judgment of 4 December 1998, ICJ Reports 1998, 456, paras. 55 et seq.; id., Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment of 21 June 2000, ICJ Reports 2000, 33, para. 51. 143 ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, reprinted in: ILM 35, 35, para. 17.

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State. Conduct attributable to the State can consist of acts or omissions,144 but Article 8 of the ILC Draft Articles makes it clear that the State is responsible for acts of persons only if these persons are in fact operating under the authority or control of the State. To the extent that State responsibility requires something akin to a direct agency relationship145 – large swaths of the private behaviour most responsible for environmental disasters remains outside the State responsibility scheme. Conduct of domestic regulatory agencies, is expressly considered acts of the State for purposes of State responsibility.146 There is no reason this same principle should not hold true when the challenged conduct is the failure of State regulatory agencies to live up to international environmental obligations assumed by the State. State responsibility for the failure to regulate may therefore offer a way to address the conditions that enable private actors to impose environmental harms. Conceived in this fashion, the doctrine of State responsibility may be a useful tool for environmentalists looking to add to their limited international toolkit for responding to humancreated environmental disasters. While State responsibility merely scratches the surface of the kinds of responsibility necessary to respond to, let alone prevent, environmental disasters, State responsibility is nonetheless an important component of that response. Because State responsibility may arise when a State fails to adequately regulate transnational corporations and other business entities operating within its territory, State responsibility may actually offer a side-route for integrating private conduct into the international regime. Examining recent environmental disasters only emphasises the importance of framing State responsibility in this fashion, and the ramifications it might have on the behaviour of private actors. While the proximate cause of most human-created 144 Art. 2 of the ILC Draft Articles (note 17). British Claims in the Spanish Zone of Morocco (Britain v. Morocco), Arbitral Award of 1 May 1925, RIAA II, 642, paras. 3–6.

Art. 8 of the ILC Draft Articles (note 17). The ICJ has found that Art. 8, along with Art. 4, codifies customary law, see ICJ, Application of the Treaty on the Prevention of Genocide (Bosnia v. Serbia), Judgment of 26 February 2007, ICJ Reports 2007, 43, paras. 385, 398. 145

Art. 4 (1) of the ILC Draft Articles (note 17); ICJ, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, ICJ Reports 1999, 87, para. 62. See also International Center for Settlement of Investment Disputes (ICSID), Azurix Corp. v. Argentina Republic, Case No. ARB/01/12, Award of 14 July 2006, para. 46: “responsibility of States for acts of its organs and political subdivisions is well accepted under international law”. 146

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environmental disasters is private conduct, the State’s failure to regulate enables those private actors, and creates the conditions under which their poor private choices are possible. For example, the Deepwater Horizon disaster was clearly caused by the negligence of BP along with its corporate partners Halliburton and Transocean. Yet, it was the US’s failure to rigorously regulate offshore drilling that made those poor private choices possible.147 Had the US lived up to its international obligations to conduct EIAs and to protect the marine environment, its regulatory oversight might have forestalled the reckless private behaviour that caused the disaster. The Fukushima nuclear disaster reflected a similar private-public dynamic.148 Although the plant operator TEPCO bore the responsibility for its series of poor safety choices, the Japanese government failed to live up to its international commitments to regulate its nuclear facilities.149 Unlike the Deepwater Horizon situation, the intertwined relationship of TEPCO and the Japanese government might also raise the possibility of a de facto agency relationship sufficient to establish direct State responsibility.150 An internationally wrongful act carried out by State officials may give rise to individual criminal liability under international law. But, if such an act is properly attributable to the State, it will also trigger State responsibility under international law, and the State cannot obviate its own responsibility by prosecuting and punishing the State officials who carried it out.151 Article 58 of the ILC Draft Articles clearly indicates that the ILC contemplated concurrent individual and State responsibility.152 Indeed, under international law, this is relatively familiar ground. The Second Proto-

See in detail Center for Progressive Reform, Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed To Avoid a Recurrence, White Paper #1007 (2010), available at: http://www.progressivereform.org/articles/BP_Reg_Blowout_1007.pdf (accessed on 30 November 2012). 147

148 The Guardian, 18 June 2011, Japan Under Fire for Failure to Implement Safeguards at Fukushima, available at: http://www.guardian.co.uk/world/2011/jun/18/japan-under-fire-over-failure-fukushimasafeguards (accessed on 30 November 2012). 149

See Hanschel (note 20).

150

Art. 8 of the ILC Draft Articles (note 17).

See ILC Draft Articles, with commentaries (note 87), Art. 58, Commentary; ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovinia v. Serbia and Monetenegro), Judgment of 26 February 2007, ICJ Reports 2007, 116, paras. 167–173. 151

152

Art. 58 of the ILC Draft Articles (note 17).

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col to the Hague Convention for the Protection of Cultural Property explicitly provides for both individual and State responsibility.153 The Convention on Supplementary Compensation for Nuclear Damage154 offers a window into how international environmental agreements might reflect the parallel nature of State and individual responsibility for human-induced transboundary environmental disasters. Although the Convention makes it clear that the operator of a nuclear installation is liable for any damages, the State has an independent obligation to ensure that a certain amount is available for compensation of nuclear damage.155 This notion that the failure to regulate adequately can breach international legal obligations, thereby triggering State responsibility is gaining traction across a wide range of international fora.156

2. Solving the ‘Reluctance to Use’ Problem There is no doubt that a State that fails to fulfil a treaty duty may, at least potentially, be held responsible by other States under international law. However, treaties very rarely provide a remedy to the private parties who are far more likely to be interested in asserting State responsibility. Private parties have historically been shut out of a State-responsibility regime because only States have the power under international law to assert a breach of State responsibility or seek redress. This exclusion of non-State actors from the State responsibility regime limits its utility. See Art. 38 of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999, reprinted in: ILM 38, 769: “[n]o provision in this Protocol relating to individual criminal responsibility shall affect the responsibility of States under international law, including the duty to provide reparation”. 153

154 Convention on Supplementary Compensation for Nuclear Damage, 12 September 1997, reprinted in: ILM 36, 1473 (not yet in force); Alexandre Kiss, State responsibility and Liability for Nuclear Damage, Denver Journal of International Law and Policy 35 (2006), 67, 85.

Art. III (1)(a) of the Convention on Supplementary Compensation for Nuclear Damage (note 154). 155

156 ICSID, SGS Société générale de Surveillance S.A. v. Islamic Republic of Pakistan, Decision of 6 August 2003, Case No. ARB/01/13, reprinted in: ICSID Review – Foreign Investment Law Journal 18 (2003), 352, para. 147; WTO, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Panel of 10 November 2004, WT/DS285/R, para. 6.128; see Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, January 22–26, 1997, reprinted in: Human Rights Quarterly 20 (1998), 691, indicating that a failure to regulate can trigger State responsibility.

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Moreover, many thinkers have suggested that the possibility of any kind of State responsibility action is quite remote. There are certainly grounds to be sceptical about the utility of State responsibility for responding to an endemic environmental problem like climate change. Even with regard to human-induced environmental disasters with clear perpetrators and clear victims – the kind of environmental disasters exemplified by the Sandoz and Baia Mare spills – State responsibility probably offers little more than a ‘modest and symbolic step’157 toward resolving these problems. Indeed, the two spills give us reason to be sceptical that State responsibility would even be invoked to address a transboundary human-created environmental disaster. In environmental disputes, State behaviour is influenced by a keen awareness that the plaintiff in one case might find itself the defendant in the next. Since State responsibility is, as Koskenniemi observed, “about coercing the State”158 States jealously preserve their own freedom to act, even when they seek to vindicate environmental wrongs. By limiting the power to redress breaches of State responsibility to States themselves, the ILC Draft Articles put States in a tricky position. Even an injured State might be reluctant to pursue a State responsibility claim, because a victory might focus unwelcome attention on domestic polluting industries and could potentially generate calls for stricter (and more costly) domestic environmental regulation. Moreover, many States entitled to a claim under the doctrine of State responsibility are also polluters themselves. Thus the question of ‘unclean hands’ and the divisibility of harm may limit the doctrine’s utility. Indeed, as early as the River Meuse Case, international law recognised State non-performance of treaty obligations as a bar to enforcing performance on the part of another State.159 Thus a chief criticism of the doctrine of State responsibility has been its perceived futility – what State is going to

157 David Caron, The Law of the Environment: A Symbolic Step of Modest Value, Yale Journal of International Law 14 (1989), 528, 534, describing § 601 of the Restatement (Third) (note 3). 158

Koskenniemi (note 84), 341.

See PCIJ, Diversion of Water from the Meuse (Netherlands v. Belgium), Judgment of 28 June 1937, Separate Opinion of Judge Hudson, Series A/B, Nos. 70, 77, para. 323: “where two parties have assumed an identical or a reciprocal obligation; one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party.” See also James Crawford/Simon Olleson, The Exception of Non-Performance: Links between the Law of Treaties and the Law of State Responsibility, Australian Yearbook of International Law 21 (2001), 55. 159

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vigorously pursue State responsibility when it could be on the other side in the next case?160 Recent experiences highlight this barrier to invoking State responsibility. In the wake of the Fukushima disaster, for example, there was near panic on the West coast of the US over radiation, contaminated air and water, and the expectation that radioactive debris would make its way to US shores. Iodine sales soared, and the US Geological Service detected radioactive fallout in a significant percentage of precipitation samples taken across the US.161 The full scope of the transboundary harms are not yet known as experimental models project that it will take three to five years for the highest levels of radioactive sea water to reach the US.162 Fish caught off the coast of Japan continue to show elevated levels of Cesium125, indicating that nuclear contamination is still flowing into coastal waters, raising the spectre of a bioaccumulation problem for decades to come.163 Should those longer-term effects create a moderate or severe radiation contamination issue, they will, of course, pale in comparison to the domestic contamination within Japan. Had the worst fears of immediate and major radioactive contamination in the US been realised, however, it would have been difficult to imagine the US responding by invoking the doctrine of State responsibility against Japan. Not only are the two States close allies with deep economic ties, the US has 23 nuclear reactors identical to the one that failed so catastrophically in Fukushima.164 Moreover, many of the 123 US’s reactors are built near faults or in potential flood zones (particularly as climate change increases storm surge.) In the November 2012 Hurricane Sandy, for example, three 160 Whether a responsible State would be amenable to any proceedings that might produce reparations is a separate but related question. 161

Gregory A. Wetherbee/Timothy M. Debey/Mark A. Nilles/Christopher M.B. Lehmann/David A. Gay, Fission Products in National Atmospheric Deposition Program – Wet Deposition Samples Prior to and Following the Fukushima Dai-Ichi Nuclear Power Plant Incident, March 8–April 5, 2011, Open-File Report 2011-1277, available at: http://pubs.usgs.gov/of/2011/1277/report/OF11-1277.pdf (accessed on 30 November 2012). Erik Behrens, Model simulations on the long-term dispersal of 137Cs released into the Pacific Ocean off Fukushima, Environmental Research Letters 7 (2012), 1, 7 et seq. 162

163

Ken O. Buesseler, Fishing for Answers off Fukushima, Science 338 (October 2012), 480.

Matt Smith, CNN, 17 February 2012, U.S. Nuclear Plants Similar to Fukushima Spark Concern, available at: http://www.cnn.com/2012/02/17/us/us-nuclear-reactor-concerns/index.html (accessed on 30 November 2012). And, of course, the US’s use of nuclear weapons against Japan during World War II would make any such claim deeply ironic. 164

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nuclear reactors were forced to close and others were placed on alert. Storm-related complications forced plant operators to activate backup power systems, and in one case to vent steam that potentially contained low level radioactive contamination.165 This shared vulnerability to the same sort set of failures would be a powerful disincentive to invoking State responsibility. The Deepwater Horizon disaster offers a different kind of insight about the political hurdles that stand in the way of State responsibility. There was widespread concern in Mexico and the Wider Caribbean that the oil spill would damage reefs, fisheries and beaches. There was even concern that the oil might be swept all the way to Europe. These fears did not materialise. The damage from the oil spill was immense, but the vast majority of the damage was confined to US shores, fisheries and beaches. Yet, even had the initial fears panned out, it is unlikely that State responsibility would have been invoked, despite clear findings from the US itself that regulatory failures created the conditions that allowed the disaster to occur.166 The likely plaintiffs are States particularly dependent on the US – a relationship built on aid, trade and tourism. Their vulnerability to US displeasure would likely make them very reluctant to invoke State responsibility, even after the US laid the groundwork by declaring its many faults and responsibilities. Power dynamics between the possible plaintiff States and the putative defendants are such that an action pursuing State responsibility for transboundary harms flowing from this human-induced environmental disaster would be improbable. These two recent disasters highlight some of the limitations of State responsibility. Global power inequality may restrict the ability of small, relatively weak States to invoke State responsibility against more powerful States. A shared vulnerability may dampen willingness to invoke State responsibility when that power dynamic is absent.167 165 Henry Ray, Huffington Post, 31 October 2012, Superstorm Sandy Nuclear Power Plants: Indian Point Facility Forced to Shut Down Unit; Oyster Creek Plant Also on Alert, available at: http://www. huffingtonpost.com/2012/10/30/superstorm-sandy-nuclear-power-plants_n_2042598.html (accessed on 12 March 2013). 166 See in detail National Commission on the Deepwater Horizon Oil Spill, Deepwater: The Gulf Oil Disaster and the Future of Offshore Drilling, Report to the President, 1 January 2011, available at: http://www.oilspillcommission.gov/sites/default/files/documents/DEEPWATER_Reporttothe President_FINAL.pdf (accessed on 30 November 2012). 167 Perhaps a third lesson is that initial fears of transboundary harm after an environmental disaster may not necessarily pan out. On the other hand, Chernobyl, Sandoz, and Baia Mare remind us of the myriad examples where the transboundary damage is as bad or worse than initially projected.

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However, solidarity rights168 and erga omnes obligations, along with the changing nature of transboundary environmental harms, may provide the key to breaking conspiracy of inaction. In particular, the growing evidence of climate change creates an entirely new class of potential State plaintiffs, States unlikely to be bound by the same sense of reciprocal vulnerability that has historically limited resort to State responsibility. For Small Island States, or vulnerable coastal States, breach of State responsibilities to regulate effectively, to share information, and to cooperate, offers another arrow in their quiver and potentially a structural answer to the structural failures that allow transboundary environmental harms. Particularly in the context of climate change, that traditional bilateral reluctance to use this tool breaks down. With the rise of solidarity rights, and the recognition of responsibility to cooperate and support, a new formal path is beginning to emerge. Island States have already demonstrated a no-holds barred willingness to use existing international law vehicles;169 they will surely seize on this possibility as well.

VII. Conclusion: Is There Still a Role for State Responsibility? As Franck points out, the definition of subjects under international law has expanded beyond its traditional focus on States, and now includes consideration, at a

Markus Kotzur, European Union Law on Disaster Preparedness and Response, GYIL 55 (2012), 253, 269–271. 168

Those most vulnerable to climate change are already pursuing a range of innovative tactics under international law. Palau is pressing the GA to request an advisory opinion from the ICJ on responsibility for climate damages, see Press Conference on Request for International Court of Justice Advisory Opinion on Climate Change, 3 February 2012, available at: http://www.un.org/News/briefings/docs/ 2012/120203_ICJ.doc.htm (accessed on 30 November 2012). The Federated States of Micronesia intervened in the Czech Republic’s permitting process for a major coal-fired power plant, demanding that the Czech Republic initiate a Transboundary EIA to consider the effect the plant would have on Micronesia, see Press Release: Threatened Pacific Island Nation Makes History by Challenging European Carbon Emitter, 23 May 2011, available at: http://www.greenpeace.org/international/en/press/ releases/Threatened-Pacific-Island-Nation-makes-legal-history-by-challenging-European-carbonemitter/ (accessed on 30 November 2012). The Inuit Circumpolar Council filed a case before the InterAmerican Commission on Human Rights alleging that the United States’ failure to control emissions violated the American Declaration on the Rights and Duties of Man, see Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by the Acts and Omissions of the United States, 7 December 2005, available at: http://www.inuit circumpolar.com/files/uploads/icc-files/FINALPetitionICC.pdf (accessed on 30 November 2012). 169

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minimum, of individuals and of international organisations.170 This marks a significant change from the traditional proposition that the State, and only the State, was responsible for the unlawful acts of its citizens, including the acts of its officials.171 Over the past three decades, the biggest developments in the international law of responsibility have focused on personal accountability. The International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and now the International Criminal Court (ICC) have pursued individual actors for their roles in grievous violations of international law. At the same time, through the R2P, and the ILC Draft Articles, international law has expanded the idea of State responsibility. International law can and should proceed on both tracks in tandem.172 The Genocide Convention, for example, embraces the notion of both individual and State responsibility. Together, Articles II and IV of the Genocide Convention spell out this notion of parallel responsibility. Article II addresses persons who engage in “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […],”173 while Article IV recognises “the responsibility of a State for genocide.”174 The Convention provides that, in the latter situation, a referral to the ICJ may be appropriate.175 The ICC Statute similarly contemplates both State and individual responsibility in Article 25 (4), which specifies that: “no provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”176 Both the ICTY and the ICJ have recognised that

170 See Thomas Franck, State responsibility in the Era of Individual Criminal Responsibility, Draft for Rapoport Center Workshop on Human Rights and Justice, 25 September 2006, available at: http:// www.utexas.edu/law/centers/humanrights/events/speaker-series-papers/Franck.pdf (accessed on 30 November 2012), citing Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (9th ed. 1992), 500, para. 45. 171 Garcia and Garza (United Mexican States v. United States), Arbitral Award of 3 December 1926, RIAA IV, 119.

Andre Nollkaemper, Concurrence Between State Responsibility and Individual Responsibility in International Law, International and Comparative Law Quarterly (ICLQ) 52 (2003), 615. 172

Art. II of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS 78, 277 (Genocide Convention). 173

174

Art. IV of the Genocide Convention (note 173).

175

Art. IX of the Genocide Convention (note 173).

176

Art. 25 (4) of the ICC Statute (note 139).

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State and individual responsibility can exist concurrently,177 as has the European Court of Human Rights (ECtHR).178 Environmental law seems to be a logical meeting ground for these two developing visions of responsibility under international law. International criminal law does not currently address environmental harms. Nor does it reach the conduct of juridical persons. Thus there is an important gap in this burgeoning field of individual liability, one that State responsibility focused on the State failure to regulate can begin to fill. Moreover, there is a very strong case that State responsibility is a vital link in ensuring overall responsibility for human-created environmental disasters. After all, State responsibility is not about holding the State vicariously responsible for the independent acts of individuals within its jurisdiction. Instead, State responsibility is about holding States accountable for their own failure to act – in this case, the failure to appropriately regulate the actions of private persons within their jurisdiction. It is this wrong that State responsibility seeks to penalise, and without the doctrine of State responsibility there may be no way to get at the structural, institutional problems that allow human-created environmental disasters to occur. Another reason for keeping State responsibility central to the discussion of environmental protection is that environmental rights may not be adequately protected without well-recognised corresponding State duties. Moreover, as Drumbl points out, an over-emphasis on individual criminal responsibility at the expense of State responsibility can lead to a “retributive shortfall”179 in which we recognise the culpability of a handful of blameworthy individuals at the expense of allowing powerful States and organisations to avoid accountability.

ICTY, Trial Chamber, Prosecutor v Furundzija, Judgment of 10 December 1998, reprinted in: ILM 38, 317, para. 142, recognizing that State responsibility can exist alongside individual criminal responsibility when State officials fail to prevent torture or punish torturers; ICJ, Case Concerning the Application of the Covenant on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, para. 32, concluding that individual criminal responsibility for genocide does not exclude any form of State responsibility. 177

ECtHR, Selmouni v. France, Judgment of 7 July 1999, RJD 1999-V, 149, para. 87, holding that State prosecution of French police officials for alleged acts of torture committed by an individual officer does not absolve France from State responsibility under the European Convention on Human Rights (ECHR). 178

Mark A. Drumbl, Book Review: Philippe Sands (ed.), From Nuremberg to The Hague: The Future of International Criminal Justice, Michigan Law Review 103 (2005), 1295, 1313 et seq. 179

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The failure by a State to regulate adequately can be the cause, either direct or indirect, of environmental degradation beyond its territory. Often, these environmental harms result from the activities of transnational corporations in countries that lack effective means of monitoring and enforcing compliance with environmental laws. Indeed, some scholars even tout that failure to regulate as a competitive advantage for those States.180 Yet, as the transboundary harms produced by unregulated production and waste disposal become increasingly visible, this notion of strategic tolerance of pollution and degradation loses traction. By removing that veneer of voluntariness, the power mismatch between powerful transnational corporations and the countries tasked with regulating them comes into focus. It is at this intersection between sovereignty and capacity that the emerging doctrines of State responsibility offer something really valuable. The second pillar of R2P – support and capacitybuilding, tied into the recognition that States have an international responsibility to regulate adequately – may offer a way out of this power and capacity mismatch. The remedy for a breach of State responsibility is “full reparation for the injury caused by the internationally wrongful act shall take the form of restitution […].”181Article 31 of the ILC Draft Articles makes it clear that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”182 Article 35 further underscores that a responsible State “is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.”183 It means that coupled with the recognition that the failure to adequately regulate polluting activities is a breach of State responsibility; this commitment to restitution creates a powerful tool for reforming unsustainable practices. For many human-created environmental disasters, damages may be challenging to assess; causation may be difficult to trace; and re-establishing the situation prior to the wrongful act may be impossible. Climate change and loss of biodiversity are clear Miguel Quiroga/Thomas Sterner/Martin Persson, Have Countries with Lax Environmental Regulations a Comparative Advantage in Polluting Industries? Resources for the Future Discussion Paper (2007); Gene M. Grossman/Allen B. Krueger, Economic Growth and the Environment, Quarterly Journal of Economics 110 (1991), 353; Summers (note 4). 180

181

Art. 34 of the ILC Draft Articles (note 17).

182

Art. 31 of the ILC Draft Articles (note 17).

Art. 35 of the ILC Draft Articles (note 17). This amounts to an embrace of Franck’s vision of justice as “demand[ing] a fair sharing of the costs of reconstituting that which was destroyed,” see Franck (note 170), 26. 183

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examples of when a restitution-based model will be of limited value. For these situations, precaution must be our watchword and the international focus needs to move from restitution to prevention. Yet, by training the focus of international law squarely onto the State responsibility to regulate and manage its territory, the doctrine of State responsibility is an important step along the path to sustainability.

Prevention, Preparedness and Assistance Concerning Nuclear Accidents – Effective International Legal Framework or Patchwork? DIRK HANSCHEL(

ABSTRACT: This paper deals with the legal rules regarding nuclear disaster management relating to prevention, preparedness and assistance. The author argues that while multiple rules exist on the international level that display a certain amount of strength, they do not yet constitute an effective framework. In light of the recent disaster at the nuclear power plant of Fukushima in Japan, further steps need to be taken in order to enhance their applicability, scope and coherence. Domestic legislation is required for their implementation and may, at the same time, provide a model for further international rule-making in light of the fact that nuclear fallout does not respect borders. KEYWORDS: Prevention, Preparedness, Assistance, Nuclear Accidents, Disaster Management, Fukushima

I. Introduction In the light of the Fukushima disaster, the question of how to prevent and deal with nuclear accidents has moved into the centre of international attention. Hence, the International Atomic Energy Agency (IAEA) Ministerial Conference on Nuclear Safety in June 2011 convened “to direct, under the leading role of the Agency, the process of learning and acting upon lessons following the Fukushima accident to strengthen nuclear safety, emergency preparedness and radiation protection of people and the environment worldwide.”1 The necessity to embark on this exercise springs to Dr. Dirk Hanschel holds a position as Reader at the School of Law, University of Aberdeen.The author wishes to thank Prof. Dr. Nele Matz-Lück, Sylvia Nwamaraihe and Lars Borchardt for their helpful comments and suggestions. (

International Atomic Energy Agency (IAEA), Nuclear Safety Review for the Year 2012, 3, available at: http://www.iaea.org/About/Policy/GC/GC56/GC56InfDocuments/English/gc56inf-2_en.pdf (accessed on 15 November 2012). 1

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mind when looking at the persistent interest of many nations regarding nuclear energy. It is true that Fukushima led Germany, Belgium, Switzerland and Italy to phase out nuclear energy while others, such as Denmark, Greece, Austria and New Zealand, had already opposed it before. At the same time, there are many nations around the world which intend to maintain or even expand nuclear power as a prime energy source, be it highly industrialised countries such as the United States (US), the United Kingdom or France or countries in transition with an ever increasing hunger for energy, e.g., the Russian Federation, China, India, South Korea, Turkey, etc.2 Having said this, Hurricane Sandy that recently hit the US East Coast caused an unpleasant reminiscence of Fukushima when potential effects on US nuclear plants were reported which fortunately did not lead into catastrophe.3 This shows that the topic of prevention, preparedness and assistance is here to stay, particularly in light of climate change, which increases the likelihood of further extreme weather events of categories formerly unknown.4 Looking at the current status quo of nuclear safety control, a substantial number of legal instruments may be identified both at the international and the national level. The international legal framework addresses the fact that nuclear accidents are not limited to power plants, but may also result from other uses of nuclear materials, e.g., mining, trading and disposal of nuclear materials or the accidental explosion of nuclear weapons etc. In light of the current focus of the debate as illustrated above, this analysis will mainly concentrate on the operation of nuclear power plants,5 first from an international and then from a comparative domestic angle (looking at Germany, Japan and the US). In doing so, it intends to show that the IAEA has created and permanently updated a rather strong, albeit fragmented and complex legal regime with regard to prevention and preparedness that highlights the role of 2

Ibid.

See Richard Schiffman, Are Nuclear Plants Safe In Hurricanes? Incidents During Sandy Suggested That They May Not Be, 11 March 2012, available at: http://www.huffingtonpost.com/richard-schiffman/ are-nuclear-plants-safe-i_b_2063329.html (accessed on 11 November 2012). 3

4 See Andrew Steer, Listening to Hurricane Sandy: Climate Change Is Here, 11 March 2012, available at: http://www.huffingtonpost.com/dr-andrew-steer/climate-change-hurricane-sandy-_b_2068961.html (accessed on 11 November 2012). 5 Hence this study is not primarily dealing with nuclear security, i.e. “the prevention and detection of, and response to, theft, sabotage, unauthorized access, illegal transfer or other malicious acts involving nuclear material, other radioactive substances or their associated facilities,” see IAEA, The International Legal Framework for Legal Security, IAEA International Law Series No. 4 (2011), 1.

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domestic (as opposed to international) liability, while rules on assistance are much weaker in basically requiring that the State concerned asks for such assistance. The legal framework might receive further guidance from well-defined overarching customary law principles, in particular the precautionary principle that may inspire a more critical and coherent risk assessment philosophy, as well as the principle of no transboundary harm, which may inform the debate on liability as well as on potential duties of assistance or acceptance of assistance. While these principles are not yet strong enough to ban nuclear power as such, this paper suggests that they impose an increasing burden of justification to States using it.

II. Analysis of the International Law in the Field The pertinent international framework provides a mix of binding and non-binding advisory norms.6 The first international agreements (both globally and regionally) mostly dealt with liability and compensation, and aimed to make or keep the nuclear energy business feasible.7 Later, in particular after the disaster at the nuclear plants of Chernobyl, the nuclear safety regime was tightened step by step, with new challenges resulting from the recent Fukushima accident. The IAEA plays a crucial role in the field. As Article 2 of the IAEA Statute states that “the Agency shall seek to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world.” The IAEA, hence, constitutes the main institution promoting and supervising rules of prevention, preparedness and assistance relating to nuclear accidents. The following analysis will deal with each of the three categories separately, while taking into account possible overlaps.

6 Mohamed El Baradei/Edwin Nwogugu/John Rames, International law and nuclear energy: Overview of the legal framework, IAEA Bulletin 3 (1995).

See Catherine Redgwell, International Environmental Law, in: Malcolm D. Evans (ed.), International law (3rd ed. 2010), 704 et seq., who mentions the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy; see also Malcolm Nathan Shaw, International Law (6th ed. 2008), 893, according to whom the Convention “provides that the operator of a nuclear installation shall be liable for damage to or loss of life of any person and damage to or loss of any property (other than the nuclear installation and associated property or means of transport)”. 7

220 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 A. Prevention

1. The 1994 IAEA Convention on Nuclear Safety The key international instrument dealing with prevention of nuclear accidents is the 1994 IAEA Convention on Nuclear Safety (CNS)8 which aims at the safe operation of nuclear power plants.9 According to its Article 1, the objectives of this Convention are: (i)

to achieve and maintain a high level of nuclear safety worldwide through the enhancement of national measures and international co-operation including, where appropriate, safety-related technical co-operation;

(ii)

to establish and maintain effective defences in nuclear installations against potential radiological hazards in order to protect individuals, society and the environment from harmful effects of ionizing radiation from such installations;

(iii) to prevent accidents with radiological consequences and to mitigate such consequences should they occur. According to Article 4, “[e]ach Contracting Party shall take, within the framework of its national law, the legislative, regulatory and administrative measures and other steps necessary for implementing its obligations under this Convention.” The Convention hence emphasises the respective responsibility of the State operating a nuclear installation in being required to take domestic measures.10 This includes regular reporting (Article 5), review of national safety measures regarding domestic nuclear installations (Article 6), the establishment of a legislative and regulatory framework (Article 7), and the creation of a national regulatory body “entrusted with the imple8

Convention on Nuclear Safety, 20 September 1994, UNTS 1963, 293.

Redgwell (note 7), 706; Robert W. Schaaf, New Convention on Nuclear Safety, International Journal Of Legal Information 22 (1994), 277; Johan Rautenbach/Wolfram Tonhauser/Anthony Wetherall, Overview of the international framework governing the safe and peaceful use of nuclear energy, in: OECD, International Nuclear Law in the Post-Chernobyl Period (2006), 14, available at: http://www.oecd-nea.org/law/chernobyl/nea6146-iaea-chernobyl.pdf (accessed on 11 November 2012). The Convention currently has 75 parties, including Germany, Japan and the United States as the three countries compared in this paper; Convention status available at: http://www.iaea.org/Publications/ Documents/Conventions/nuclearsafety_status.pdf (accessed on 3 December 2012). 9

10

Shaw (note 7), 892 et seq.

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mentation of the legislative and regulatory framework referred to in Article 7, and provided with adequate authority, competence and financial and human resources to fulfil its assigned responsibilities” (Article 8).11 It further stipulates that operators of nuclear installations need to be licensed and retain the main responsibility to provide the necessary safety (Article 9).12 Articles 10 to 16 then lay out ‘General Safety Considerations’: including priority to safety (Article 10), financial and human resources (Article 11), human factors (Article 12), quality assurance (Article 13), assessment and verification of safety (Article 14), radiation protection (Article 15), and emergency preparedness (Article 16). Further provisions address the ‘Safety of Installations’: including siting (Article 17), design and construction (Article 18), and operation (Article 19). Chapter 3 deals with ‘Meetings of the Contracting Parties’ that assess the reviews and reports provided under Article 5. According to Article 28, the IAEA serves as the Secretariat for the Convention. The Convention finally contains safety standards that, however, do not impose binding obligations onto the parties.13 The aim of the CNS is to provide an incentive to cooperate, assuming that States have a joint interest to achieve and maintain a high safety level regarding their nuclear installations, since transboundary effects of disasters may be massive, as the Chernobyl accident shows.14 Hence, the weakness of existing enforcement mechanisms is not necessarily detrimental to the Convention’s effectiveness. However, national preferences with regard to nuclear safety vary considerably, depending on the political system, available resources regarding finance and technology as well as personal preferences of leaders in power. Therefore, it might be too optimistic to believe that the incentive approach as employed in the Convention will be very effective, at least without accompanying measures such as the provision of financial and technological support on the one hand and mechanisms of shaming and blaming on the other.15

11

Ibid.

12

Ibid., 893.

13

Ibid.

14

See Rautenbach/Tonhauser/Wetherall (note 9), 14.

Generally on compliance control, see e.g., Abram Chayes/Antonia Handler Chayes, On Compliance, International Organization 47 (1993), 175 et seq.; for an analogy to compliance control in the field of environmental protection, see Dirk Hanschel, Verhandlungslösungen im Umweltvölkerrecht (2003), 229 et seq. 15

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Nevertheless, regular meetings of the State Parties are a useful tool to identify common interests and exchange their national information which is subsequently reviewed by expert peers from other countries.16 Such a reporting mechanism is wellknown from human rights and environmental instruments.17 Furthermore, a benchmarking process is employed, entailing that parties report on the progress made before agreeing on more ambitious action.18 Meetings of competent authorities have also led to a number of actions allowing the IAEA Secretariat to promote its plans for further development of the safety system.19 Rautenbach et al., hence, aptly conclude that “the CNS is actually an ongoing, gradual and sustained process that seeks to continually promote and improve safety worldwide […]. Developments that have occurred during the application of the review process demonstrate not only significant progress towards safety-related improvements, but also a willingness of Parties to fully contribute to the process.” In addition, they note that the delicate balance between confidentiality and transparency has shifted more to the latter.20 Finally, parties agreed to have the IAEA Secretariat submit a report presenting generic information, although not identifying any specific country, about the significant issues, developments and trends in enhancing nuclear safety, based on its results of its advisory safety related services and missions and to henceforth use the IAEA’s comprehensive suite of safety standards as a tool to assist in the review process.21

This reminds of the General Comments drafted by the human rights committees with regard to existing Covenant rights and may, indeed, constitute an important step towards higher effectiveness.22 The procedures described above create mutually beneficial effects through learning processes at both ends. However, if all these improvements were not able to prevent the accident of Fukushima in a highly developed country, then the question remains how sufficient nuclear safety can be accomplished. 16

Rautenbach/Tonhauser/Wetherall (note 9), 12.

See, e.g., Dirk Hanschel, Environment and Human Rights, Cooperative Means of Regime Implementation (2000). 17

18

Ibid., 12 et seq.

19

See Rautenbach/Tonhauser/Wetherall (note 9), 12.

See ibid., 15, noting “a move away from confidentiality among States, towards openness, transparency and cooperativeness”. 20

21

Ibid.

22

See, e.g., Eibe Riedel, Die ‘General Comments’ der menschenrechtlichen Vertragsausschüsse (2005).

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2. Soft Law The binding instruments analysed above are complemented by many advisory soft law documents. According to Article III (A) (6) of the IAEA Statute, the Agency may adopt “standards of safety for the protection of health and the minimization of danger to life and property.” Hence, a Code of Conduct on the Safety and Security of Radioactive Sources and the Supplementary Guidance on the Import and Export of Radioactive Sources was created.23 Together with national experts, the IAEA further developed the Nuclear Safety Standards (NUSS) dealing inter alia with national rule-making regarding nuclear power plants, including siting, operation and quality assurance.24 These and other standards or codes of conduct help to ensure basic requirements such as “adequate supply of trained personnel, […] the ability to conduct a careful and detailed safety evaluation […] and the ability to conduct an appropriate quality assurance programme including control and inspection.”25 They serve as additional guidance and aides of interpretation for the IAEA sponsored regime on prevention of nuclear accidents. Furthermore, a non-binding Nuclear Protocol was added to the Energy Charter Treaty, which is named Protocol on Principles Governing the Peaceful Uses of Nuclear Energy and the Safety of Nuclear Installations and on Cooperation in these Areas.26 Its content overlaps significantly with the CNS and other international instruments in the field.27 Hence, it would need to be restructured to be effective, i.e. by gearing it more to the overall purpose of the Energy Charter Treaty; this could entail “a commitment to apply the principles of the Nuclear Safety Convention to the whole nuclear fuel cycle including, inter alia, military, enrichment, and repossessing

Bertold Moser, The IAEA Conventions on Early Notification of Nuclear Accidents and on Assistance in the Case of Nuclear Accident and Radiological Emergency, in: Organization for Economic Co-Operation and Development (OECD), International Nuclear Law in the Post-Chernobyl Period (2006), 119 et seq., available at: http://www.oecd-nea.org/law/chernobyl/nea6146-iaea-chernobyl.pdf (accessed on 11 November 2012). 23

24

El Baradei/Nwogugu/Rames (note 6), 17.

25

Ibid.

See Nathalie Louisa Johanna Theodora Horbach, Nuclear Protocol of the Energy Charter, Journal of Energy and Natural Resources Law 13 (1995), 164. 26

27

Ibid., 176 et seq.

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nuclear facilities, radioactive waste management and transport of nuclear materials.”28 Precisely due to its soft law character, it might be possible to expand its scope accordingly.29

3. Assessment On an overall account, the rules on prevention are well-elaborated, but hinge on the will of State Parties to comply with them. While their interest to cooperate is generally rather strong, asymmetries may occur with regard to national policy preferences, domestic transparency, democratic feed-back loops etc. Moreover, technology transfer and funding are crucial issues which are not yet sufficiently dealt with. Monitoring processes are carried out by the IAEA which hence makes a major effort to implement a regime that is still fragmented both in terms of its substantial rules and the number of State Parties having accepted the respective instruments.

B. Preparedness

In addition to the rules aiming to prevent the occurrence of nuclear accidents, IAEA precautions entail a second ‘line of defence’ preparing the institution, national governments and operators for accidents that occur in spite of these precautions. Indirectly, this can be considered to entail a concession that nuclear accidents may be impossible to avoid with certainty. At the same time, it reminds of the multiple technical safety systems regarding the operation of nuclear plants that try to deal with human imperfection by providing for redundancy. The term ‘preparedness’ is commonly used by the IAEA, e.g. in its Nuclear Safety Review for the year 2012.30 It has several facets, in particular notification regarding accidents and the establishment of adequate liability rules to compensate resulting damage, including the provision of the necessary financial resources to do so. Due to the Fukushima disaster which did not only display a lack of prevention measures, but also a lack of professional response 28

Ibid., 177.

29

Ibid.

30

IAEA (note 1), 27 et seq.

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mechanisms including communication,31 reflecting upon preparedness is of critical importance. At the same time, one should note that prevention and preparedness are interdependent; they often coincide and overlap. Accordingly, preparation to a potential accident may help to avoid escalation and thus serve as a means of preventing further damage, should the accident occur.

1. Notification a) The 1986 Convention on Early Notification of a Nuclear Accident A crucial aspect of preparedness is notification, since it is often the precondition for an appropriate reaction. This is why the 1986 Convention on Early Notification of a Nuclear Accident (Early Notification Convention),32 which has today 114 parties including Germany, Japan and the US,33 plays a key role in this field. This Convention builds on the principle of no transboundary harm34 which is part of customary international environmental law. In the aftermath of Chernobyl, this instrument was promoted by the IAEA in order to oblige States to inform each other as quickly as possible of any future nuclear disaster and to agree on a common institution dealing with the consequences.35 31 See for these failures, e.g., Hiroko Tabuchi, Japan Panel Cites Failure in Tsunami, 26 December 2012, available at: http://www.nytimes.com/2011/12/27/world/asia/report-condemns-japansresponse-to-nuclear-accident.html (accessed 16 November 2012). 32 Convention on Early Notification of a Nuclear Accident, 26 September 1986, UNTS 1439, 275; Moser (note 23), 119 et seq.; Redgwell (note 7), 706. 33 Convention status available at: http://www.iaea.org/Publications/Documents/Conventions/ cenna_status.pdf (accessed 3 December 2012). 34

Redgwell (note 7), 706; see also Rautenbach/Tonhauser/Wetherall (note 9), 9 et seq.

Moser (note 23), 119; on the legal consequences of Chernobyl, see Diana K. Brown, Chernobyl: Its Implication for International Atomic Energy Regulation, Michigan Yearbook of International Legal Studies 9 (1998), 367; Richard E. Levy, International Law and the Chernobyl Nuclear Accident: Reflections on an Important but Imperfect System, Kansas Law Review 36 (1987), 81; for an assessment of nuclear power prospects after Chernobyl see James K. Asseltine, The Future of Nuclear Power after Chernobyl, Virginia Journal Natural Resources Law 6 (1986–1987), 239. See furthermore Rautenbach/ Tonhauser/Wetherall (note 9), 7 et seq., who claim that the “accident was in fact a wake-up call for the international nuclear community and led to a new era in international nuclear cooperation, involving States that had so far been removed both geographically and technologically from nuclear power,” and they stress its attempt to “rebuild confidence in the safety of nuclear energy, primarily through the IAEA, by urgently addressing those main deficiencies in the existing international legal framework that 35

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According to its Article 1, the Convention shall apply in the event of any accident involving facilities or activities of a State Party or of persons or legal entities under its jurisdiction or control […] from which a release of radioactive material occurs or is likely to occur and which has resulted or may result in an international transboundary release that could be of radiological safety significance for another State.

The pertinent facilities are listed in Article 1 (2), amongst them “any nuclear reactor wherever located” and whatever may be its purpose.36 For the case of a nuclear accident according to the above definition, Article 2 lays down an obligation to (a)[…] notify, directly or through the International Atomic Energy Agency […], those States which are or may be physically affected […] and the Agency of the nuclear accident, its nature, the time of its occurrence and its exact location where appropriate; and (b)promptly provide the States referred to in sub-paragraph (a), directly or through the Agency, and the Agency with such available information relevant to minimizing the radiological consequences in those States […].37

Nuclear weapons are not covered by Article 1; they are regulated rather hesitantly by Article 3 according to which State Parties “may notify in the event of nuclear accidents other than those specified in [A]rticle 1,” but they are not required to do so.38 According to Article 5 the information that needs to be provided entails, inter alia, (a) the time, exact location where appropriate, and the nature of the nuclear accident; (b) the facility or activity involved; (c) the assumed or established cause and the foreseeable development of the nuclear accident relevant to the transboundary release of the radioactive materials; (d) the general characteristics of the radioactive release, including, as far as is practicable and appropriate, the nature, probable physical and chemical form and the quantity, composition and effective height of the radioactive release.

States are required, “as far as is reasonably practicable, [to] respond promptly to a request for further information or consultations sought by an affected State Party with a view to minimizing the radiological consequences in that State” (Article 6). had been exemplified by the accident.” An earlier thrust for regulation already occurred after the Three Mile Island disaster in the US in 1979, see ibid., 8. 36

Moser (note 23), 121.

37

Ibid., 120.

38

Ibid., 121.

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Furthermore, they have to deliver information to the IAEA with regard to their “competent authorities and point of contact responsible for issuing and receiving the notification and information referred to in Article 2”; the IAEA has to compile a list of these spots and keep it updated (Article 7). The relatively large number of parties to this Convention, the clear and unambiguous obligations and the lack of competing instruments in the field render it a useful instrument with respect to preparedness. At the same time, the treaty merely constitutes the precondition and framework for a number of response actions most of which are still at the discretion of States, i.e. not regulated by binding international law. In light of the rather poor information policy in reaction to the Chernobyl disaster, the necessity to make progress with regard to early notification is absolutely self-evident – which does not mean, of course, that countries will necessary abide to their obligation whenever necessary. b) The Convention on Supplementary Compensation for Nuclear Damage (CSC) A further duty of notification is contained in the liability regime set up by the Convention on Supplementary Compensation for Nuclear Damage (CSC) which is, however, not yet in force.39 Its Article VI states: [w]ithout prejudice to obligations which Contracting Parties may have under other international agreements, the Contracting Party whose courts have jurisdiction shall inform the other Contracting Parties of a nuclear incident as soon as it appears that the damage caused by such incident exceeds, or is likely to exceed, the amount available […].

This linkage drawn here between notification and liability is important because it shows that the preconditions of responsibility, and, hence, liability can only be ascertained if the installation State has a duty to reveal the facts.

39 Convention status available at: http://www.iaea.org/Publications/Documents/Conventions/ supcomp_status.pdf (accessed on 11 November 2012); see infra, II. B. 2. d).

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c) Soft Law In addition to the binding rules discussed above, the IAEA has generated nonbinding standards regarding notification and has revised them several times, placing them within the framework of Emergency Preparedness and Response (EPR).40 Hence, in 2002 safety requirements regarding Preparedness and Response for a Nuclear or Radiological Emergency (GS-R-2) were drafted.41 Furthermore, a Manual on Emergency Notification and Assistance Technical Operations Manual (EPRENATOM) was prepared, primarily for use by contact points as mentioned in the Early Notification and the Assistance Conventions.42 The Manual serves to connect the IAEA, its members, signatories of the conventions, other States and international organisations in the field. The IAEA also regularly hosts sessions of the Inter-Agency Committee on Radiological and Nuclear Emergencies (IACRNE), which coordinates efforts of international institutions regarding preparation and response to radiation events, paying due regard to the fact that the IAEA is not the only institution which is competent in the field.43 IACRNE is supported by international institutions and organs such as the European Commission, Europol, Interpol, the International Maritime Organization (IMO), the Organization for Economic Co-Operation and Development (OECD), the United Nations Environment Programme (UNEP) or the World Health Organization (WHO).44 On this basis a Joint Radiation Emergency Management Plan (JPLAN) of the International Organizations participating in IACRNE became effective on 1 January 2010.45 This plan has constituted an important basis for IAEA action with regard to the Fukushima accident.

40 IAEA, Nuclear Security Achievements 2002–2011, available at: http://www.iaea.org/ Publications/Booklets/NuclearSecurity/nsachievements0312.pdf (accessed on 15 November 2012). 41

Ibid., 28.

IAEA, Emergency Notification and Assistance (2002), available at: http://www-pub.iaea.org/ MTCD/Publications/PDF/enatom2002.pdf (accessed on 16 November 2012). 42

43

IAEA (note 1), 12.

44

Ibid., 45.

International Organizations participating in IACRNE, Joint Radiation Emergency Management Plan, 1 January 2010, available at: http://www-pub.iaea.org/MTCD/Publications/PDF/EPR-JPLAN_ 2010_web.pdf (accessed on 16 November 2012). 45

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2. Liability Another marked exception to the scarceness of binding rules with regard to preparedness is liability. Liability with regard to the operator of a nuclear installation is in fact a subcategory of preparedness since it ensures that damage caused by nuclear accidents is compensated, be it by the operator of a nuclear facility or by the State in which it is operated (i.e. the installation State). All relevant instruments operate on the basis of strict liability of the operator; appropriate insurance or other forms of financial security are required, and States have to make sure that claims up the limits may be met (residual responsibility).46 Inter-State claims, however, which may arise under the contested rules of the international law of State responsibility, appear to be outside the scope of specific IAEA rules and hence follow the general rules on State responsibility, which are far from being clearly settled.47 a) The 1963 Vienna Convention on Civil Liability for Nuclear Damage The earliest instrument in this field is the 1963 Vienna Convention on Civil Liability for Nuclear Damage (Vienna Convention)48 which strives for global regulation of liability issues under the guidance of the IAEA.49 This ambitious aim is compromised by the number of parties to this Convention (currently 38, excluding the three countries of comparison50) which is unfortunately rather low.51 Article II (1) (a) of the Vienna Convention stipulates that “[t]he operator of a nuclear installation shall be liable for nuclear damage upon proof that such damage has been caused by a nuclear incident […] in his nuclear installation.” Article II (3) (a) adds: “[w]here nuclear damage engages the liability of more than one operator, the operators involved shall, in so far as the 46

Shaw (note 7), 894.

47

Ibid., 781 et seq.

48

Convention on Civil Liability for Nuclear Damage, 21 May 1963, UNTS 1063, 265.

Rautenbach/Tonhauser/Wetherall (note 9), 26; see also Rüdiger Wolfrum/Christine Langenfeld/ Petra Minnerop, Environmental Liability in International Law: Towards a Coherent Conception (2005), 109 et seq. 49

50

See infra, III. A–D.

Shaw (note 7), 894; Convention status available at: http://www.iaea.org/Publications/Documents/ Conventions/liability_status.pdf (accessed on 11 November 2012). 51

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damage attributable to each operator is not reasonably separable, be jointly and severally liable.” Article II (5) reads: “[e]xcept as otherwise provided in this Convention, no person other than the operator shall be liable for nuclear damage.” According to Article IV (1) “[t]he liability of the operator for nuclear damage under this Convention shall be absolute.” Article VII states that “[t]he operator shall be required to maintain insurance or other financial security covering his liability for nuclear damage in such amount, of such type and in such terms as the Installation State shall specify.” The residual responsibility of the installation State is secured by requiring it to ensure the payment of claims for compensation for nuclear damage which have been established against the operator by providing the necessary funds to the extent that the yield of insurance or other financial security is inadequate to satisfy such claims, but not in excess of the limit, if any, established pursuant to Article V.

This interrelation between operator and State liability is a suitable means of establishing responsibility. On the one hand, it provides an incentive for the State to set up effective rules with regard to operator liability; on the other hand, it protects claimants by granting them a second debtor. The rules are also equitable since they reflect the fact that both the operator and the State are creating the risk by setting up or authorising a nuclear power plant. In democracies the fundamental decision in favour of nuclear energy is usually backed by a majority of the people; hence it appears fair for a society to bear the risks in a solidary fashion, as well. Taking this into account, the low number of parties to the Vienna Convention, which demands precisely that, is discouraging. b) The 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy and its 1963 Brussels Supplementary Convention The 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention)52 contains similar rules as the Vienna Convention, but as opposed to the latter constitutes a merely regional instrument by its intention.53 The Paris 52

Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, UNTS 956, 251.

Shaw (note 7), 893 et seq.; Redgwell (note 7), 706; Rautenbach/Tonhauser/Wetherall (note 9), 26; Wolfrum/Langenfeld/Minnerop (note 49), 100 et seq. The Convention has, as of today, fifteen parties including Germany, Convention status available at: http://www.oecd-nea.org/law/paris-conventionratification.html (accessed on 11 November 2012). The Chart shows that three protocols were added to the Convention in 1964, 1982, 2004 out of which the former two have entered into force, Germany having acceded to both of them. 53

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Convention and its 1963 Brussels Supplementary Convention54 were sponsored by the OECD and the Nuclear Energy Agency; they intend to secure third party liability vis-àvis persons suffering nuclear damage, while at the same time allowing for a commercially feasible use and development of nuclear energy.55 Unfortunately, the Chernobyl accident was not covered by the Paris and Brussels regime, since the Soviet Union, as a non-OECD member, was not a party to it; furthermore, the set of rules does not deal with incidents outside the territory of the respective parties.56 This has in fact reduced its effectiveness and prompted further international regime-building efforts. c) The 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention In light of the shortcomings analysed above, it became necessary to expand membership of the existing framework and furthermore to improve coverage of transboundary effects of nuclear accidents.57 In addition, substantial overlaps between the Vienna and the Paris Conventions needed to be addressed since they caused substantial uncertainty and conflicts of laws.58 These problems were tackled by the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention which has today 27 parties (including Germany).59 Article II of the Joint Protocol mutually expands the operator’s liability under both regimes as follows: […] The operator of a nuclear installation situated in the territory of a Party to the Vienna Convention shall be liable in accordance with that Convention for nuclear damage suffered in the territory of a Party to both the Paris Convention and this Protocol; […] The 54 Convention Supplementary to the Convention on Third Party Liability in the Field of Nuclear Energy, 31 January 1963, UNTS 1041, 358. This Convention has, as of today, 12 parties including Germany, Convention status available at: http://www.oecd-nea.org/law/brussels-convention-ratification.html (accessed on 11 November 2012). This Chart displays that three Protocols were added to the Brussels Convention in 1964, 1982 and 2004, out of which the former two have entered into force, Germany having acceded to both of them. 55

Redgwell (note 7), 705.

56

Ibid., 706.

57

Rautenbach/Tonhauser/Wetherall (note 9), 26.

58

Ibid.

Shaw (note 7), 894; Rautenbach/Tonhauser/Wetherall (note 9), 26; Convention status of the parties to the Joint Protocol available at: http://www.iaea.org/Publications/Documents/Conventions/ jointprot_status.pdf (accessed on 11 November 2012). 59

232 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 operator of a nuclear installation situated in the territory of a Party to the Paris Convention shall be liable in accordance with that Convention for nuclear damage suffered in the territory of a Party to both the Vienna Convention and this Protocol.60

Article III addresses conflicts between the two regimes relating to nuclear accidents by stipulating: (1) Either the Vienna Convention or the Paris Convention shall apply to a nuclear incident to the exclusion of the other. (2) In the case of a nuclear incident occurring in a nuclear installation, the applicable Convention shall be that to which the State is a Party within whose territory that installation is situated […].61

While the Joint Protocol manages to link the rules of the two conventions in a way that may help to create synergies and avoid conflicts, the low number of parties shows that it was obviously not the danger of regime collisions that had kept most countries from accepting the regulatory framework, but rather perceived national interests. d) The 1997 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage and the Convention on Supplementary Compensation for Nuclear Damage (CSC) Due to the limited liability under the instruments previously discussed, further treaties were negotiated during several years and finally adopted: the 1997 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage (1997 Protocol)62 which entered into force in October 2003 and has as of today 10 parties (including neither Germany, Japan or the US),63 as well as the separate CSC (ratified by the US) which, according to its Article XX (1), will enter into force “on the ninetieth day following the date on which at least 5 States with a minimum of 400,000 units of

60

See also Rautenbach/Tonhauser/Wetherall (note 9), 26.

61

Ibid.

Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, 12 September 1997, UNTS 2241, 270. 62

63 Convention status available at: http://www.iaea.org/Publications/Documents/Conventions/ protamend_status.pdf (accessed on 11 November 2012).

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installed nuclear capacity have deposited an instrument referred to in Article XVIII.”64 Article XIX (1) of the CSC, stipulates that: [such an instrument of] ratification, acceptance or approval […] shall be accepted only from a State which is a Party to either the Vienna Convention or the Paris Convention, or a State which declares that its national law complies with the provisions of the Annex to this Convention, provided that, in the case of a State having on its territory a nuclear installation as defined in the Convention on Nuclear Safety of 17 June 1994, it is a Contracting State to that Convention.

This neatly links the various instruments and streamlines the applicable rules while at the same time revealing the complexity and fragmentation existing in the field. The very low number of parties does not give rise to hopes that the rules set up in these treaties will soon be established as a common standard for countries operating nuclear energy plants. The 1997 Protocol expands the Vienna Convention by covering damage occurring in non-signatory States (see Article 3, with certain exceptions), and with regard to the categories of damage covered, including inter alia certain “costs of measures of reinstatement of impaired environment, […] loss of income deriving from an economic interest in any use or enjoyment of the environment, […] [as well as the] costs of preventive measures” (Article 2 (vi)). Both, the 1997 Protocol and the CSC increase liability to the minimum of 300 million Special Drawing Rights (approximately 400 million US Dollars).65 In addition, Article 8 of the 1997 Protocol extends the period regarding claims “with respect to loss of life and personal injury, [to] thirty years from the date of the nuclear incident.”66 The CSC by contrast to the 1997 Protocol, aims to establish a global nuclear liability system, open to all States, no matter whether they are parties to the Vienna or Paris Convention.67 According to its Article II (1) “[t]he purpose of this Convention is to supplement the system of compensation provided pursuant to national law which: (a) implements one of the instruments referred to in Article I (a) and (b); or 64 Convention status available at: http://www.iaea.org/Publications/Documents/Conventions/ supcomp_status.pdf (accessed on 11 November 2012); Shaw (note 7), 894; Redgwell (note 7), 706; Rautenbach/Tonhauser/Wetherall (note 9), 26 et seq.; Wolfrum/Langenfeld/Minnerop (note 49), 110 et seq. 65

Shaw (note 7), 894; Rautenbach/Tonhauser/Wetherall (note 9), 27.

66

Rautenbach/Tonhauser/Wetherall (note 9), 27.

67

Ibid.

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(b) complies with the provisions of the Annex to this Convention.” Finally, the CSC sets up a mechanism allowing for additional funding on top of the amount provided through the Vienna and the Paris Conventions or national legislation.68 e) The United Nations Convention on the Law of the Sea The United Nations Convention on the Law of the Sea (UNCLOS)69 may establish liability due to nuclear contamination of the sea resulting from an accident in a nuclear power plant.70 Article 139 of the UNCLOS which deals with activities in the Area (i.e. the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction) stipulates that States shall be held liable for damage incurred by non-compliance with obligations such as the “[p]rotection of the marine environment” (Article 145). A similar obligation follows from Article 235 (1) of the UNCLOS which is not limited to the Area, laying down that “States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.” According to Article 235 (2) of the UNCLOS, “States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.” Finally, pursuant to Article 235 (3) of the UNCLOS, States have to cooperate in the implementation and further development of international law with regard to responsibility and liability. The latter shows that the respective rules are still subject to further clarification and elaboration. One current deficit is the absence of a clear distinction between State responsibility and operator liability, the latter being largely left to international organisations and domestic law. By contrast to the IAEA sponsored regimes analysed above, UNCLOS lacks the establishment of a clear-cut obligation of States to provide subsidiary compensation where the operator is unable to do so. In spite of its weak68

Ibid.

69

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

Stephen L. Kass, International Law Lessons from the Fukushima Nuclear Disaster, New York Law Journal (2011), available at: http://www.clm.com/publication.cfm?ID=324 (accessed on 5 December 2012). UNCLOS has 164 parties, including Germany and Japan, but not the United States, UNCLOS, Chronological List of Ratifications available at: http://www.un.org/Depts/los/reference_ files/chronological_lists_of_ratifications.htm (accessed on 16 November 2012). 70

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nesses, UNCLOS may constitute an important additional pillar in order to provide compensation, but it needs to be developed further according to Article 235 (3) of the UNCLOS as illustrated above. f) Customary International Law With regard to customary international law, there is debate as to what extent the principle of no transboundary harm71 as established in the Trail Smelter Arbitration72 may also be applied to the field of nuclear energy. State practice and corresponding opinio iuris with regard to this firmly established principle do not appear to justify any exception in that regard. The fact that details of responsibility are laid down in the treaties analysed above, including the principle of channeled liability, cannot be interpreted as expressing the parties’ intention to limit parallel customary liability accordingly. The problem remains, however, that the precise content of the no transboundary harm principle as a primary norm of international law as well as the existence of a corresponding secondary obligation to provide compensation in cases of violation are disputed.73 More recent, albeit non-binding statements, in particular the 1997 Resolution on Responsibility and Liability under International Law for Environmental Damage74 (1997 Resolution) of the International Law Institute and the 2006 International Law Commission Draft Principles on the Allocation of Loss from Hazardous Activities75 (2006 ILC Draft Principles) indicate that this problem might be solved in the future. See on the primary rules of responsibility in international environmental law Malgosia Fitzmaurice, International Responsibility and Liability, in: Daniel Bodansky/Jutta Brunnée/Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (2007), 1012 et seq. 71

Trail Smelter Arbitration (United States, Canada), Abitral Award of 16 April 1938, Reports of International Arbitral Awards (RIAA) III, 1905. 72

73 Günther Handl, International Responsibility and Liability for Transboundary Impacts, in: Daniel Bodansky/Jutta Brunnée/Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (2007), 544 et seq. 74 International Law Institute, Resolution on Responsibility and Liability under International Law for Environmental Damage, 4 September 1997, available at: http://www.idi-iil.org/idiE/resolutionsE/ 1997_str_03_en.PDF (accessed on 11 November 2012).

ILC, Draft Principles on the Allocation of Loss from Hazardous Activities, 2006, available at: http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_10_2006.pdf (accessed on 11 November 2012). 75

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According to Article 3 of the 1997 Resolution “[t]he principles of international law governing international responsibility also apply to obligations relating to environmental protection.” Pursuant to its Article 5, strict liability should be established by environmental regimes, and, according to Article 6, primary responsibility should be assigned to the operator. Article 10 deals with insurance. By comparison, Principle 4 of the 2006 ILC Draft Principles stipulates ‘prompt and adequate compensation’, including “the imposition of liability on the operator or, where appropriate, other person or entity; [s]uch liability should not require proof or fault.” While nuclear energy is not mentioned as such, it may be subsumed under the term hazardous activity, which in Principle 2 (c) is defined as “an activity which involves a risk of causing significant harm.” It remains to be seen whether these norms will nurture future attempts of concretisation and operationalisation of international customary liability; while State obligations to set up domestic liability schemes are an important step towards this end, another one would be to establish an international obligation or even a corresponding subjective right of compensation accompanied by procedural remedies.76 Both drafts do not confine themselves to preparedness, but deal with response mechanisms, as well (Articles 14 to 16 of the 1997 Resolution and Principle 5 of the 2006 ILC Draft Principles). These may turn out to be important stepping stones for future regulation, exceeding the current status quo. 3. Assessment The preparedness level of IAEA was fiercely tested by the Fukushima disaster. Within an hour after the earthquake happened, the Incident and Emergency System of the Agency was activated and requested first information on the safety of Japan’s nuclear power plants from the local contact point. Subsequently, status reports on the Fukushima plant were published and disseminated twice per day to the Member States, and the JPLAN was activated.77 This IAEA reaction could not have been prompted without notification which is hence a crucial requirement of preparedness and is aptly addressed by a number of 76

See also Handl (note 73), 546.

77

For the IAEA response, see IAEA (note 1), 11 et seq.

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instruments. In spite of useful existing rules, the degree to which notification will occur will always depend on the willingness of the State hit by an accident to do so. One may wonder whether a legal obligation will actually lead a government that would otherwise try to hide its failures to report such an incident. But since notification is a prerequisite for assistance and nuclear accidents are increasingly difficult to hide, one should expect that nations will generally abide by these rules. For countries that are willing to co-operate, the rules on notification certainly provide the right avenues in order to facilitate such cooperation and to make it as effective as possible. The IAEA provides an important interface and relay function in this field. In spite of recent improvements with regard to treaty law, doubts remain as to the comprehensiveness of the liability regime.78 They concern the complex interplay of legal regimes in the field as well as the lack of global participation.79 In order to deal with complexity, the IAEA founded the International Expert Group on Nuclear Liability which has provided explanatory texts to the legal instruments and focused on potential shortcomings of the regulatory framework.80 The lack of sufficient participation remains. In addition, even the increased liability limits of operators may be exceeded easily when looking at a disaster like at Fukushima.81 Conversely, interstate claims against the State are more difficult to realise, as the events of Chernobyl have shown: claims against the Soviet Union were reserved, but problems remained with regard to exact State obligations and doubts regarding the standard of care which have probably prevented such claims.82 Countries rather embark on disaster management and assistance, since recovery and stability of an adversely country is in their own interest.83 Hence, it is apt to claim more prevention, even more extensive

78

Rautenbauch/Tonhauser/Wetherall (note 9), 27 et seq.

79

Ibid.

80

Ibid., 28.

Kass (note 70): “[h]owever, even assuming the injured parties have access to a court with jurisdiction over the operator, that liability could far exceed both TEP’s assets (if any such assets remain after payments to Japanese victims) and any insurance or international compensation fund established for accident victims under the pending protocols to the Vienna Convention”. 81

82

Shaw (note 7), 895.

Kass (note 70): “[i]f potential claimants conclude that international litigation against Japan is unlikely to be productive when Japan’s recovery is in the global community’s self-interest, it is even less likely that, if a comparable nuclear accident occurred in a less affluent country, the theoretical availability of damage claims under international law would afford a meaningful remedy to injured parties”. 83

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civil and criminal liability for private persons and companies, as well as effective emergency responses.84 In light of limited progress regarding treaty law on the one hand and abundant, while sometimes confusing IAEA standards on the other, the more principled nature of customary law appears as a promising avenue to strengthen protection and cooperation, while the details still need to be clarified. An important task will be to carve out the exact meaning and scope of the no transboundary harm principle and corresponding secondary rules on compensation with regard to nuclear accidents, and to determine which domestic standards should follow from them. C. Assistance

‘Assistance’ constitutes the third step after prevention and preparedness. As opposed to the former two, it is an obligation that is not vested in the operators of a nuclear plant or the installation State, but in the international community of States.85 Theoretically, rules on assistance could also entail a right to provide assistance in the installation State. However, a corresponding obligation to tolerate such interference would be viewed as compromising national sovereignty. This, in turn, clearly reduces the likelihood of such a rule being established in a binding international agreement. 1. The Nordic Mutual Emergency Assistance Agreement in Connection with Radiation Accidents The 1963 Nordic Mutual Assistance Agreement86 concluded amongst the Scandinavian countries constitutes the first treaty regarding assistance in case of radiation. Safeguarding sovereignty concerns, Article I (1) makes it clear that [t]he Requesting State shall have full responsibility for the use of the assistance in conformity with this Agreement, and any personnel provided by the Assisting Party shall be 84

Ibid.

Albert M. Church/Roger D. Norton, Issues in Emergency Preparedness for Radiological Transportation Accidents, Natural Resources Journal 21 (1981), 757, available at: http://lawlibrary.unm.edu/ nrj/21/4/06_church_issues.pdf (accessed on 5 December 2012). 85

86 IAEA, Nordic Mutual Assistance Agreement, 17 October 1963, available at: http://www.iaea. org/Publications/Documents/Infcircs/Others/infcirc49.shtml (accessed on 16 November 2012).

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subject to the direction and supervision of the Requesting State in the performance of their functions while within the territory of the Requesting State.

Article II provides a special role for the IAEA in the process. Due to the very limited regional scope of this agreement and its rather brief wording, this instrument has not caused major repercussions. However, being the first treaty tackling this issue, it may still be considered as a blueprint for subsequent efforts. What makes it appealing is the fact that it already deals with questions of liability with regard to assistance, dividing up responsibilities of the requesting and the assisting State in Article IV. In addition, it determines national contact points (‘designation of competent authorities’) in Article V hence creating the preconditions for a coordinated response to nuclear accidents. These aspects have later been picked up by agreements that provide a more encompassing approach as discussed in the following sections. 2. The 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency In 1986, the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention)87 was signed as a reaction to the Chernobyl accident; it states that in a case of a nuclear accident or radiological emergency a State may ask for assistance either directly or through the IAEA, no matter whether the event originated from its own territory, jurisdiction or control.88 The IAEA may then afford assistance by various means. It provides adequate resources, operates as an interface between the various focus points and institutions and distributes the necessary information. The Assistance Convention which has currently 108 parties including Germany, Japan and the US,89 intends to “balance considerations relating to the sovereignty of the requesting State, the legitimate rights of the assisting State or States and the interests of the international community in rendering rapid assistance to affected States.”90 Parties are not limited to States, but there are also a Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 26 September 1986, UNTS 1457, 133. 87

88

Shaw (note 7), 891; Redgwell (note 7), 706; Rautenbach/Tonhauser/Wetherall (note 9), 9 et seq.

Convention status available at: http://www.iaea.org/Publications/Documents/Conventions/ cacnare_status.pdf (accessed on 11 November 2012). 89

90

Shaw (note 7), 892.

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number of international institutions, such as the European Commission (through EURATOM), the WHO, the World Meteorological Organization, the Food and Agricultural Organization, etc., which shows the necessity to provide linkages between the relevant actors in the field.91 According to Article 1 of the Assistance Convention [t]he States Parties shall cooperate between themselves and with the International Atomic Energy Agency (hereinafter referred to as the ‘Agency’) in accordance with the provisions of this Convention to facilitate prompt assistance in the event of a nuclear accident or radiological emergency to minimize its consequences and to protect life, property and the environment from the effects of radioactive releases.

The provision continues by laying out various instruments of cooperation, i.e. “bilateral or multilateral arrangements or, where appropriate, a combination of these, for preventing or minimizing injury and damage which may result in the event of a nuclear accident or radiological emergency.” Article 2 (1) formulates the provision of assistance as follows: [i]f a State Party needs assistance in the event of a nuclear accident or radiological emergency, whether or not such accident or emergency originates within its territory, jurisdiction or control, it may call for such assistance from any other State Party, directly or through the Agency, and from the Agency, or, where appropriate, from other international intergovernmental organizations (hereinafter referred to as ‘international organizations’).

As Article 2 (3) indicates, there is no duty to provide assistance. A requested State shall merely “promptly decide and notify the requesting […] Party, directly or through the Agency, whether it is in a position to render the assistance requested, and the scope and terms of the assistance that might be rendered.” The treaty shows, e.g. in Article 5 which deals with ‘[f]unctions of the Agency’, that one of the main concerns of disaster relief is coordination in light of the multiple national, regional and international institutions that are active in the field. The challenge here is to increase the gains of institutional diversity while minimising competition for competencies and drawbacks potentially resulting from institutional overlap. It appears useful to clearly define leadership of only one organisation. The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) with its various tools would certainly be well-suited due to its global character and its

91

IAEA (note 1), 54.

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expertise with regard to disasters heavily affecting human beings.92 However, the particular intricacies of nuclear spills indicate that the IAEA is in fact the better choice, while obviously requiring strong support from other international institutions. This corresponds to Article 5 which puts the IAEA in the central position to establish and maintain liaison with relevant international organizations for the purposes of obtaining and exchanging relevant information and data and make a list of such organizations available to States Parties, Member States and the aforementioned organizations.

3. The Early Notification Convention The Early Notification Convention93 contains a reference to assistance, as well, as stipulated in Article 8: “[t]he Agency shall […] conduct investigations into the feasibility and establishment of an appropriate radiation monitoring system in order to facilitate the achievement of the objectives of this Convention.” While this stresses the linkage between notification and assistance, the diplomatic language employed in Article 8 hardly conceals the weakness of this obligation. 4. Institutional Arrangements Institutionally, the UN Disaster Relief Office (UN-DRO) of 1972 provided ‘assistance in pre-disaster planning’, i.e. at the stage when an accident has not yet happened. With that in mind, this mechanism also qualifies as a means of securing preparedness. In 1977 an agreement was concluded between UN-DRO and IAEA in order to coordinate their efforts,94 before the former was replaced by OCHA in 1991.95 Furthermore, the IAEA Incident and Emergency Centre (IEC) was […] established within the IAEA Secretariat of the IAEA as a 24-hour warning and operational focal point for acting on notifications and/or advisory messages by [S]tates and

OCHA, Overview on Response, available at: http://www.unocha.org/what-we-do/coordination/ response/overview (accessed on 3 February 2013). 92

93

See supra, II. B. 1. a).

94

Shaw (note 7), 891.

OCHA, History, available at: http://www.unocha.org/about-us/who-we-are/history (accessed on 3 February 2013). 95

242 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 relevant international organizations, for example, of nuclear or radiological emergencies, as well as responding to requests of information or assistance during such emergencies.96

While the conventions discussed above stipulate important obligations in terms of assistance and notification, it is the IEC that provides the swift and coordinated response in the case of an actual emergency.97 The IAEA carries out ‘international emergency response exercises’ on a regular basis. Finally, its Secretariat establishes links between the national contact points as required under Article 7 of the Early Notification Convention and Article 4 of the Assistance Convention. In addition to the IEC, a regional National Competent Authorities’ Co-ordinating Group was set up in 2003 which concentrates on strengthening international communication and assistance while safeguarding close co-ordination with the IAEA.98 5. Soft Law The pertinent soft law largely concerns both preparedness and assistance.99 To that extent the analysis above regarding non-binding advisory norms on preparedness may claim validity also for this section.100 In addition, guidelines were published in 1984 “setting out the mechanics of co-operation between [S]tates, including references to the problems of costs, liability, privileges and immunities.”101 Furthermore, the EPRENATOM, which is complemented by Emergency Response Network Manual, deals specifically with assistance in practice.102 The sheer number of documents relevant in the field makes it hard to gain an overview. Hence, one prime IAEA task is clearly to prioritise and eliminate outdated standards to be replaced by new ones.

96

Rautenbauch/Tonhauser/Wetherall (note 9), 10.

97

Ibid.

98

Ibid., 12.

99

See supra, II. B. 1. c).

100

Ibid.

101

Shaw (note 7), 891.

102

See supra, II. B. 1. c).

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6. Assessment The rules on assessment are clearly the weakest since they potentially conflict with national sovereignty. Duties to accept assistance would constitute important steps forward which are, however, lacking. What is even more disappointing is that even the less intrusive obligation to provide assistance on request is largely lacking. Emerging rules on solidarity may help to remedy this deficit in the future, while currently not yet being sufficiently clear-cut in order to serve for this purpose.103 When looking at the further construction of a more encompassing regime on nuclear safety, assistance will have to play a major role, since past experiences show that it may be impossible to completely prevent nuclear accidents. At the same time, strengthening assistance might, in a way, be seen as tantamount to admitting just that, which may be one reason why some countries are reluctant to embark on this enterprise. III. National Law in Comparative Perspective In addition to the international perspective laid out above, some remarks shall be made from a comparative point of view by looking at the reactions of Germany, the US and Japan to the Fukushima disaster.104 The idea is to get a sense of the measures that highly industrialised countries with an advanced safety standard have taken in responding to a new sense of alertness in society. These reactions might in turn inspire international regulatory processes in the future.

Rüdiger Wolfrum, Conclusions, in: Rüdiger Wolfrum/Chie Kojima (eds.), Solidarity: A Structural Principle of International Law (2010), 225 et seq. 103

104 Lincoln L. Davies, Beyond Fukushima: Disasters, Nuclear Energy and Energy Law, Brigham Young University Law Review (2011), 1937; for a comparison of Chernobyl and Fukushima dimensions, see Wade Allison, Life and Nuclear Radiation: Chernobyl and Fukushima in Perspective (2011), available at: http://de.slideshare.net/JohnBradford/bristol-june2011 (accessed on 11 November 2012). For a world-wide overview of possible consequences, see Paul L. Joskow/John E. Parsons, The Future of Nuclear Power After Fukushima (2012), available at: http://web.mit.edu/ceepr/www/publications/ workingpapers/2012-001.pdf (accessed on 11 November 2012).

244 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 A. Germany

Germany has decided to change its national energy law quite dramatically after the Fukushima event.105 While nuclear power was already heavily discussed in the 1970s, it was still maintained by a series of governments (left-wing or right-wing) for decades, before it was finally degraded to serve as a bridge-technology until cleaner energy would be able to replace it. In 2010 the coalition of Christian Democrats and Liberals decided to extend the duration of 17 active plants by 12 years, hence reversing the first energy turnaround initiated by the Social Democrats and the Greens beforehand. After the Fukushima accident, however, Chancellor Angela Merkel decided to dramatically accelerate the phasing out process. Hence the German decisions have been viewed as “the harshest of reactions to Fukushima Daiicha.”106 This may be criticised because Germany currently still needs to import nuclear power from France and the Czech Republic in order to meet its demand.107 Moreover, recent discussions conducted between the federal and the State governments show how difficult it will be to achieve the intended energy turnaround in light of rising consumer prices, distortions of the market, etc.108 However, while the reflection period that prompted the ultimate decision seemed rather short, a closer look at the German policy shows that the decisions taken have in fact been foreshadowed since the 1970s. Generally, the effect of the environmental catastrophe of Fukushima seems to have been one of nudging rather than of pushing the government towards a new direction.

On the current status quo of the ‘Energiewende’ see http://www.bmu.de/energiewende/aktuell/ 47760.php (accessed on 11 November 2012); for a more critical account see Davies (note 104), 1948; see furthermore Elisabeth Rosenthal, Germany Dims Nuclear Plants, but Hopes to Keep Lights On, 29 August 2011, available at: http://www.nytimes.com/2011/08/30/science/earth/30germany.html? pagewanted=all (accessed on 5 December 2012). 105

See Davies (note 104), 1951, who continues: “in the span of a decade, this heavily industrialized nation planned to transform its electric energy economy, eliminating nearly a quarter of its generation supply and using massive expansion of renewables, new coal- and gas-fired plants, and aggressive efficiency measures to make up the gap”; see furthermore Annika Breidthart, German government wants nuclear exit by 2022 at latest, Reuters, 31 May 2011, available at: http://www.reuters.com/article/ 2011/05/31/us-germany-nuclear-idUSTRE74Q2P120110531 (accessed on 16 November 2012). 106

107

Davies (note 104), 1951.

See Rat für Nachhaltige Entwicklung, Energiewende: Bund und Länder wollen sich besser koordinieren, 8 November 2012, available at: http://www.nachhaltigkeitsrat.de/news-nachhaltigkeit/ 2012/2012-11-08/energiewende-bund-und-laender-wollen-sich-besser-koordinieren (accessed on 16 November 2012). 108

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B. United States

As opposed to Germany, the US reviewed their domestic nuclear policy without considering a complete phase-out, but rather in order to double-check the current security standard in light of the Fukushima event, on the premise of changing as little as necessary.109 The Obama administration asked the Nuclear Regulation Commission (NRC) to carry out this review; in its conclusions the NRC stated that: […] a sequence of events like the Fukushima accident is unlikely to occur in the United States and some appropriate mitigation measures have been implemented, reducing the likelihood of core damage and radiological releases. Therefore, continued operation and continued licensing activities do not pose an imminent risk to public health and safety.110

The conclusion of the NRC is highly debatable. While the Fukushima accident was rather unlikely to occur, when it happened the consequences were massive. Furthermore, while a tsunami hitting the US coast may in fact be much more unlikely to happen, potential dangers resulting from hurricanes have nurtured the suspicion that it might simply not be possible to calculate all risks sufficiently in order to be able to still operate nuclear plants. The rather limited review carried out in the United States meets a public concern that is, at least in parts of the society, much more critical. Public support of this technology has dropped considerably, and many have asked for a more comprehensive review.111 The status quo of reliance on nuclear power in the US, however, remains largely unscathed.112 C. Japan

By comparison, the Japanese reaction to Fukushima has been stronger than the US and weaker than the German response. Before the accident, Japan had announced the construction of fourteen new reactors. Afterwards, a broad majority rejected this plan. This opposition to nuclear power was new, and it led Prime Minister Naoto Kan to announce that Japan would ultimately phase out nuclear power. After his resignation 109

Davies (note 104), 1952.

Charles Miller et al., Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (2011), available at: http://pbadupws.nrc.gov/docs/ML1118/ML111861807.pdf (accessed on 11 November 2012). 110

111

Davies (note 104), 1955.

112

Ibid., 1956.

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on 26 August 2011, Yoshihiko Noda entered the office who decided to continue existing plants, but to refrain from building new ones. Plants that had been switched off after the catastrophe were put back into operation, but only after being checked.113 One important domestic legal question has been whether The Tokyo Electric Power Company (TEPCO) and the Japanese State are liable for the damage incurred by the nuclear accident.114 Based on the 1961 Act on Compensation for Nuclear Damage (1961 ACND), the general rule is “strict, channeling and unlimited liability for nuclear damage unless the damage is caused by a grave natural disaster of an exceptional character.”115 Channeling liability means that the liability of the operator excludes liability of anyone else (Section 4).116 However, if the damage has been caused by the wilful act of a third party, the operator itself can claim compensation from that party (Section 5).117 The 1961 ACND aims to “protect persons suffering from nuclear damage and to contribute to the sound development of the nuclear industry by establishing the basic system regarding compensation in case of nuclear damage caused by reactor operation […]” (Section 1). Nuclear damage means “any damage caused by the effects of the fission process of nuclear fuel, or of the toxic nature of such materials” (Section 2 (2)).118 However, this definition does not appear to be sufficiently precise to determine the “scope of damage to be compensated.”119 But courts have applied the general principle of ‘scope of damage’ according to Section 416 of the Civil Code and hence require a ‘sufficient cause’, generated by “effects of the fission process of nuclear fuel, or of the radiation from nuclear fuel, etc., or of the toxic nature of such materials.”120 Section 3 reads precisely as follows: Where nuclear damage is caused as a result of reactor operation etc. during such operation, the nuclear operator who is engaged in the reactor operation etc. on this occasion shall be 113

Ibid., 1958.

Ari Osaka, Corporate Liability, Government Liability and the Fukushima Nuclear Disaster, Pacific Rim Law and Policy Journal 21 (2012), 433. 114

115 Ibid.; the English translation of the statutes is available at: http://www.oecd-nea.org/law/ legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf (accessed on 11 November 2012). 116

Osaka (note 114), 435.

117

Ibid.

118

Ibid., 434.

119

Ibid.

120

Ibid.

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liable for the damage, except in the case where the damage is caused by a grave natural disaster of an exceptional character or by an insurrection.

Osaka argues that TEPCO is liable since this exception is not triggered by the Fukushima events, for neither the earthquake nor the tsunami were “unforeseeable nor far beyond the design basis of the reactors at the plant.”121 In addition, he claims liability of the Japanese government if “it failed to exercise its regulatory power over the Tokyo Electric Power Company or if its errant acts expanded the damage.”122 Finally, General Electric might be held liable under US law if the reactors turn out to have any design weaknesses. This argument is rather convincing, since in retrospect it turned out that the risks were not completely unknown and that they were apparently at least partially ignored.123 The lack of a liability cap in the 1961 ACND helps to provide adequate financial security. Section 6 states: “[a] nuclear operator is prohibited from reactor operation etc. unless financial security for compensation of nuclear damage (hereinafter referred to as ‘financial security’) has been provided.” The financial security is usually provided by concluding a “liability insurance for nuclear damage” and “an indemnity agreement for compensation of nuclear damage or by a deposit” (Section 7 and subsequent Chapters 2, 3 and 4). Violations of the duty to ensure financial security are criminal offenses (Section 24). Under Section 16 the State, in turn, […] shall give a nuclear operator […] such aid as is required for him to compensate the damage, when the actual amount which he should pay for the nuclear damage pursuant to Section 3 exceeds the financial security amount and when the Government deems it necessary in order to attain the objectives of this [A]ct.

Part V contains a dispute settlement mechanism which “shall be in charge of mediating reconciliation of any dispute arising from compensation of nuclear damage 121

Ibid., 433, 444 et seq.

122

Ibid., 433, 449 et seq.

See also ibid., 446 et seq.: “[w]hile the design basis for tsunami waves was 5.7 meters for the Daiichi Plant and 5.2 meters for the Dai-ni Plant, TEPCO predicted in 2008 that a tsunami wave over fifteen meters would occur if an 8.3 magnitudes However, TEPCO did not use this finding when creating the plant’s earthquake countermeasures. TEPCO simply reported the finding to the Nuclear and Industrial Safety Agency at the Ministry of Economy, Trade, and Industry (‘METI’) on March 7, 2011, four days before the Great East Japan Earthquake. Thus, the Great East Japan Earthquake and tsunami do not fit into “a grave natural disaster of an exceptional character,” because neither of them were unforeseeable nor far beyond the design basis for reactors”. 123

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and of preparing general instructions to help operators reach a voluntary settlement of such disputes” (Section 18). While the discourse on the liability questions and the conciliation process with TEPCO still continues, the Nuclear Disaster Victims Prompt Relief Law has been passed on 29 July 2011 which enables the government to provide temporary compensation.124 Furthermore, on 3 August 2011 the Act on Compensation for Nuclear Damage Liability Facilitation Fund was passed aiming: 1) to take all possible measures for prompt and proper nuclear damage compensation for affected people, 2) to stabilize the conditions of Fukushima Dai-ichi Nuclear Power Plant and to prevent adverse effects on business operators dealing with the accident, [and] 3) to ensure stable supply of electricity.125 This shows that in the aftermath of an accident, prompt and effective compensation is a crucial issue, which means that the IAEA is right in placing a major emphasis on it. D. Assessment

While Fukushima has certainly changed national energy law in Germany and – to a lesser extent – in Japan, it hardly did so in the US. The comparative analysis hence shows that the reactions to Fukushima diverge, each of them displaying a special mix of political preferences, risks depending on the country’s topography or on the quality of nuclear plants, but clearly also risk perceptions within the public.126 In addition, there are different notions as to the benefits of nuclear energy and the energy philosophy that is dominant in a society.127 The comparison further reveals that after an accident liability may in fact constitute a crucial issue. Complying with international standards which have incrementally tightened the responsibility of operators, Japanese law strives to facilitate compensation even further. The details will have to be tackled by legal doctrine and court decisions; the ILC Draft Articles on State Responsibility 124

Osaka (note 114), 442.

125

Ibid., 442 et seq.

126

See Davies (note 104), 1959 et seq.

127

Ibid.

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have already begun to provide some guidance here.128 At the same time, Fukushima has, so far, not been a case of international responsibility, in particular with regard to inter-State responsibility. This may be owed to Japan’s relative geographic isolation, to the current focus on international assistance instead of compensation as well as to the fact that international responsibility is far from being stringently established. If a claim for compensation will be raised after all, Japan might try to counter it by relying on necessity according to Article 25 of the ILC Draft Articles. However, while the decision to release additional radioactivity into the air and the ocean in order to reduce the pressure in the installation may have constituted “the only way for the State to safeguard an essential interest against a grave and imminent peril” according to Article 25 (1) (a), this does not apply where “the State has contributed to the situation of necessity” (Article 25 (2) (b)). Being as tragic as it is, the Fukushima accident nevertheless provides an opportunity for reassessment that should not be missed.129 On the one hand, disasters may lead to useful changes of the law; on the other hand, they may cause over-reactions or even prevent well-balanced adaptions and changes.130 As Davies states: “requiring everything to sound in disaster in order to garner attention risks diluting the truth of when legal change is actually needed […]. And overemphasizing disasters gambles with energy policy’s future-pushing the law in ways that are neither optimal nor efficient, in directions attuned more to the flashy than the essential.”131 Still, responses to Fukushima have at least been unavoidable in Japan as the country that was directly hit by the accident, and in Germany as a country that was already in the process of phasing out nuclear energy anyway.132

ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 128

129

Davies (note 104), 1989.

130

Ibid., 1961 et seq.

131

Ibid.

See also ibid., 1989: “[e]nergy disasters should not be the primary drivers of our law; that much is plain. But if we do not use them as a chance to at least reconsider what our energy law should be, they are a wasted opportunity indeed”. 132

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IV. The Road Ahead The IAEA identifies the following challenges resulting from the Fukushima disaster: seismic shocks (including aftershocks) and tsunami hazards need to be better taken account of by IAEA safety standards and methodologies; inundation standards are in place, but not with regard to “clogging of seawater intake and outfall systems by hydrodynamic forces and sedimentation/debris generated by a tsunami or any other flooding event.”133 The IAEA furthermore adopted a Ministerial Declaration which called for an Action Plan on Nuclear Safety. Twelve main actions are stipulated in this plan, focusing on: […] safety assessments (‘stress tests’); Agency peer reviews; emergency preparedness and response; national regulatory bodies; operating organizations; Agency safety standards; the international legal framework; countries embarking on nuclear energy programmes; capacity building; protecting people and the environment from ionizing radiation; communication and information dissemination; and research and development.134

The problem remains that these standards are not legally binding. New and updated IAEA standards are, indeed, required that represent the state of the art, but they should bind States domestically, i.e. be part of a more encompassing legal framework than the one analysed above.135 Another important question in reshaping the international regime is, however, whether it is sufficient to learn from mistakes by merely fine-tuning existing rules, or whether further steps are necessary, including strict international rules laying out the conditions for the operation of nuclear power plants in the first place. Even when presupposing that the risk as such may be controlled by prevention, preparedness and assistance, the existing international legal framework on nuclear safety is not fully able to do so, since it is rather fragmented and lacks the necessary precision. Its effectiveness hinges on the willingness of State Parties to cooperate. Sovereignty concerns are hence the biggest enemy of an effective system building on the precautionary approach and on international cooperation. While the current system aptly relies on compensation of damages, it needs to further strengthen the precautionary approach in order to avoid accidents and to sponsor cooperation where accidents happen anyway. 133

IAEA (note 1).

134

Ibid., 3.

135

Kass (note 70).

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This major deficiency cannot be remedied by new international legal instruments alone, but may, in the long run, also require the insight of national legislators to set up effective domestic regimes or to abandon nuclear energy altogether. While this is primarily a political question, the precautionary approach might indicate that these routes need to be taken in the long term. Furthermore, prevention, preparedness and assistance with regard to nuclear accidents should be increasingly seen as an aspect of adaption to climate change, and hence be much better linked with the climate change regimes and institutions. Nuclear plants may help to mitigate greenhouse gases and hence to combat climate change. But they may transform into ‘nuclear bombs’ when being affected by extreme weather events that may in turn be triggered by the climate change already occurring. Ultimately, the IAEA would be well-advised to link up even further with the international discourse in the fields of human rights and environmental protection. Mainstreaming its nuclear safety regime accordingly may help to address the urgent and still unanswered question of the acceptable residual risk in a more convincing way than it is currently being done. One should add that this is a challenging task, indeed, since the pertinent rights and duties do not only concern human life and health, but also the guarantee of economic and social standards which depend on reliable and cost-effective energy.

European Union Law on Disaster Preparedness and Response MARKUS KOTZUR(

ABSTRACT: The article addresses European Union (EU) measures concerning disaster prevention and civil protection. It begins with a historical overview and a historical contextualisation. Disaster preparedness and response are strongly linked to the principle of solidarity which is one of the guiding principles of EU primary law – mentioned already in Article 2 of the Treaty on European Union and further elaborated in Article 222 of the Treaty on the Functioning of the European Union (TFEU). While disaster prevention and management are still competences of the Member States, supranational integration calls for a more elaborated coordination of the national measures and capabilities. Under the Lisbon Treaty the respective competences of the EU have been enhanced – foremost by Article 196 of the TFEU. Thus, a system of competing but intertwined and often supplementary competences has emerged. The article elaborates on how the EU exercises its coordinative powers – comprising mainly competences to inform and to foster capacity building. All in all the provisions of EU primary law show, that – in general – the regulatory autonomy of the Member States prevails. Apart from this multi-level dimension also the distribution of aspects of disaster preparedness and response among the various policy fields of the EU is addressed. KEYWORDS: Disaster Prevention, Civil Protection, Monitoring and Information Centre (MIC), Solidarity, European Integration, EU

I. Introduction: Towards a Stronger European Disaster Response “No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less […].” When John Donne, one of the most eminent metaphysical poets of British origin, wrote these famous words in 1624,1 modern day globalisation2 was as much inconceivable as the Prof. Dr. Markus Kotzur, LL.M. (Duke Univ.), Professor of European and Public International Law at Hamburg University. (

1

John Donne, Meditation XVII, in: id., Devotions upon Emergent Occasions (1624), 389, 394.

Ulrich Beck, Was ist Globalisierung? (1997); Malcolm Waters, Globalization (2nd ed. 2001); Anthony Giddens, Runaway World: How Globalisation is Reshaping Our Lives (2nd ed. 2002); Mathias 2

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French Revolution’s programmatic leitmotif Liberté, Égalité, Fraternité.3 Yet Donne’s lyrics anticipate what both, 1789 and 21st century globalisation have in common: the awareness of solidarity as an indispensable prerequisite for the very functioning of a polity – first on the national plane, then also in the global realm. Solidarity – to some extent ‘translating’ the all too often neglected fraternité into modern day language4 – not only addresses the question of how to deal with the iniquitous distribution of wealth (and thus chances in life),5 or the question of which (moral) obligations the individual might have towards the other members of their political community in cases of necessity,6 it also addresses the question of how international cooperation between nation States and other relevant political actors has to be organised. This is particularly so in the fight against poverty, sustainable development, humanitarian aid, or effective disaster response, caused by either natural or man-made catastrophes. Generally speaking, the principle of solidarity addresses both solidarity among the ‘people’ – read as ‘the citizens’ – and among the ‘peoples’. It furthermore presupposes what Donne emphatically made the starting point of his reflections: “no man is an island,” but all men are interconnected with each other and interdependent from each other – again within and beyond the nation State. In the face of disasters, such a sense of solidarity and the need to enhance civil protection becomes especially strong. It might be a truism: the closer people live together, the more they share the feeling of belongingness to a common political community.7 And beyond that, disasters lead to a shared responsibility of all humankind. de Vattel’s classic observation remains as Albert, Globalization Theory: Yesterday’s Fad or More Lively Than Ever?, International Political Sociology 1 (2007), 165. Peter Häberle, 1789 als Teil der Geschichte, Gegenwart und Zukunft des Verfassungsstaates, Jahrbuch des öffentlichen Rechts (JöR) 37 (1990), 35. 3

Herbert Krüger, Brüderlichkeit – das dritte, fast vergessene Ideal der Demokratie, in: Hans Spanner/ Peter Lerche/Hans Zacher/et al. (eds.), Festgabe für Theodor Maunz zum 70. Geburtstag am 1. September 1971 (1971), 249. 4

See Danio Campanelli, Solidarity, Principle of, MPEPIL, para. 1, available via: http://www.mpepil.com (accessed on 20 November 2012). 5

6 Ulrich Haltern, Finalität, in: Armin von Bogdandy/Jürgen Bast (eds.), Europäisches Verfassungsrecht (2nd ed. 2009), 279, 323 (with reference to ECJ, Case C-184/99, Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, 2001 ECR I-6193, para. 44).

Marco Gestri, EU Disaster Response Law: Principles and Instruments, in: id./Andrea de Guttry/ Gabriella Venturini (eds.), International Disaster Response Law: Principles and Instruments (2012), 105, 106. 7

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relevant and urgent as ever: “[…] if a Nation is suffering from famine, all those who have provisions to spare should assist it in its need” and “every Nation should give its aid” to save other nations ‘from disaster and ruin’ as an instinctive ‘act of humanity’.8 Most prominently, the UN General Assembly has re-endorsed this notion.9 In recent years, Europe has been hit by a wide range of natural as well as man-made disasters – including floods, storms, earthquakes and ash clouds, terrorist attacks, the humanitarian catastrophe of refugees or the sovereign debt crisis.10 As different as all these disaster phenomena might be, they not only evoke a sense of solidarity but also refer to a common need: cooperation (ex ante in the sense of effective precaution and prevention, ex post in the sense of effective response). They do, in other words, call for a closer, more enhanced, and more effective cooperation between the Member States of the European Union (EU) to protect the safety and security of their citizens.11 Cooperation provides for the infrastructure of solidarity. That again imposes responsibilities on all political actors being in particular capable of providing such an infrastructure. This is exactly what the European citizens expect from ‘their’ Union. The European Commission has been very conscious of these expectations when issuing its Communication, “Towards a stronger European disaster response: the role of civil protection and humanitarian assistance.” It states that: The importance of working together is clearly understood by European citizens. Approximately 90 % expect the EU to do more to help their country when faced with disasters. A similar percentage supports EU humanitarian action outside the EU.12

Emer de Vattel, Le droit des gens ou principles de la loi naturelle, Book II (1758), Chapter I, paras. 4 et seq., quoted by Carlo Focarelli, Duty to Protect in Cases of Natural Disasters, MPEPIL, para. 1, available via: http://www.mpepil.com (accessed on 20 November 2012). 8

9

GA Res. 36/225 of 17 December 1981.

It is all the more surprising that laws on disaster prevention, and disaster response have, for a rather long time, been a neglected field of legal research. See Rolf Stober/Sven Eisenmenger, Katastrophenverwaltungsrecht – Zur Renaissance eines vernachlässigten Rechtsgebiets, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 24 (2005), 121; Hans-Heinrich Trute, Katastrophenschutzrecht – Besichtigung eines verdrängten Rechtsgebiets, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 88 (2005), 34. For an instructive overview see Michael Kloepfer (ed.), Katastrophenrecht – Grundlagen und Perspektiven (2007). 10

11 See Sara Myrdal/Mark Rhinard, The European Union’s Solidarity Clause: Empty Letter or Effective Tool?, Utrikespolitiska institutet, Occasional Papers No. 2, 2010, 1, available at: http://www. ui.se/upl/files/44241.pdf (accessed on 20 November 2012). 12

See COM(2010), 600 final, 26 October 2010, 4.

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The newly established and explicitly framed ‘Solidarity Clause’, under Title VII, Article 222 of the Treaty on the Functioning of the European Union (TFEU),13 provides the legal basis enabling the EU and its Member States, “to act jointly and to assist one another in the face of disasters, emergencies, and crises on the European continent.”14 Further, Article 196 (1) of the TFEU calls for “cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.” In practice, however, the article’s (Articles 222 and 196 (1) of the TFEU) scope of application, particularly their express or implicit concepts of solidarity,15 and its implications for the EU institutions as well as for the Member States, have not yet been fully assessed.16 Either article’s overall telos – rather a necessity-driven ‘be prepared!’ than an overly optimistic ‘united we are!’ – might nevertheless pave the way to a meaningful interpretation, moving towards a stronger coordinated and coherent European disaster response.

II. Disaster Prevention within the European Communities and the European Union – a Short History European civil protection and disaster prevention measures are of public international law origin and find resemblance in manifold – mostly sectorial – multilateral treaties.17 Early attempts of the European Economic Community’s (EEC) disaster pre-

Consolidated version of the Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47. 13

14

Myrdal/Rhinard (note 11), 1.

For a first orientation, see Uwe Volkmann, Solidarität – Programm und Prinzip der Verfassung (1998). For a EU law perspective, see Armin von Bogdandy, Europäische Prinzipienlehre, in: id. (ed.), Europäisches Verfassungsrecht (1st ed 2003), 149, 182. For an earlier analysis, see Christian Tomuschat, Solidarität in Europa, in: Francesco Capotorti/Claus Ehlermann/Jochen Frowein/et al. (eds.), Du droit international au droit de l’intégration: Liber Amicorum Pierre Pescatore (1987), 729; Roland Bieber, Solidarität als Verfassungsprinzip, in: Armin von Bogdandy/Stefan Kadelbach (eds.), Solidarität und Europäische Integration (2002), 38. 15

16

Bieber (note 15), 38.

Illustrative examples are given by Tim Unger, Katastrophenabwehrrecht: Vorschläge für gesetzgeberische Neuregelungen im Bereich Zivil- und Katastrophenschutzrecht in der Bundesrepublik Deutschland (2010), 21 et seq. For a detailed sketch of the historical development, see Fabian Schwartz, Das Katastrophenschutzrecht der Europäischen Union (2011), 21 et seq. Furthermore, see Focarelli (note 8). 17

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vention date back to the 1970s,18 and can be seen as a reaction to global dangers as well as worldwide developments. In the 1960s, Carson’s famous book, ‘The Silent Spring’,19 had marked the dawn of modern American environmentalism20 in describing and analysing the threats chemicals (such as pesticides, DDT etc.) pose to the environment and public health. In 1972, the Club of Rome published its influential report on ‘The Limits of Growth’ emphasising the increasing pressure on natural resources caused by highly developed industrial societies and their ever growing demands for supply.21 In the same year, the United Nations Conference on the Human Environment (held in Stockholm)22 for the first time gathered governmental representatives from many different countries to discuss the state of the global environment and all the environmental risks, calling for effective precautionary measures. Quite a few ecological catastrophes had already underlined the urgent need for such precaution. In 1976, the Seveso disaster proved right ‘The Silent Spring’s’ Cassandra-like warnings in a most tragic way. After a grave accident in a small chemical manufacturing plant nearby the Italian city of Meda (north of Milan), the neighbouring municipalities, in particular Seveso, were contaminated by a huge amount of the highly poisonous chemical Dioxin TCDD causing the death and or sufferings of tens of thousands human beings and animals.23 The response to the Seveso accident was widely criticised as too slow and ineffective. Several days passed before the first public announcement was made that some kind of gas containing the toxic dioxin had been released from the said facility; and an evacuation of the worst-affected areas took even longer. A broad public debate

18 Andreas Walus, Europäischer Katastrophenschutz – Möglichkeiten und Grenzen im Lichte des Vertrags von Lissabon, Europarecht (EuR) 45 (2010), 564, 564. 19

Rachel Carsons, The Silent Spring (1962).

John McCormick, The Global Environmental Movement (1995); Ramachandra Guha, Environmentalism: A Global History (1999). 20

Donella H. Meadows/Dennis L. Meadows/Jorgen Randers/William W. Behrens III., The Limits to Growth: a report for the Club of Rome’s project on the predicament of mankind (1972). For an updated version, see Donella H. Meadows/Jorgen Randers/Dennis L. Meadows, The Limits to Growth: the 30-year update (2004). 21

22 See the Declaration of the United Nations Conference on the Human Environment, 16 June 1972, UN Doc. A/CONF/48/14/Rev.1 (1972). 23 Sophie Bings, Art. 196 TFEU, in: Rudolf Streinz (ed.), EUV/AEUV (2nd ed. 2012), para. 8, referring to Matthias Hofmann, Lernen aus Katastrophen: nach den Unfällen von Harrisburg, Seveso und Sandoz (2008).

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on health risks, ecological damages, necessary political answers, and, most importantly, effective precautionary measures, was the consequence. In 1982, the then EEC reacted and enacted Directive 82/501/EEC (Seveso I Directive).24 The legal basis of this instrument aimed at improving the safety of sites containing large quantities of dangerous substances was doubtful. The old Treaty establishing the European Economic Community (TEEC) of 25 March 195725 had neither foreseen a community competence for environmental politics nor addressed the question of disaster response (including preventive and precautionary measures).26 Given the EEC’s clear emphasis on economic integration, the general provisions of Articles 100 and 235 of the TEEC could not unambiguously fill that gap. Then, in 1992 the Treaty on European Union (Maastricht TEU)27 established a Community competence regarding the environment, also encompassing human health; which meant that the aforementioned shortcomings could be circumvented. Further, Directive 96/82/EC (Seveso II Directive), which superseded Seveso I, had a more solid legal foundation.28 Among others, the broadened Seveso II Directive focused on information duties, prevention policies, regular inspections, a safety report system, and emergency plans. The most recent Seveso III Directive re-stresses these perspectives by basing them on harrowing experiences: Major accidents often have serious consequences, as evidenced by accidents like Seveso, Bhopal, Schweizerhalle, Enschede, Toulouse and Buncefield. Moreover the impact can extend beyond national borders. This underlines the need to ensure that appropriate precautionary action is taken to ensure a high level of protection throughout the Union for citizens, communities and the environment. There is therefore a need to ensure that the existing high level of protection remains at least the same or increases.29

The aim of the Seveso Directives is, however, only one segment of conscious disaster preparedness and effective disaster response. Many European Commission EEC Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities, OJ 1982, L 230, 1. 24

25

Treaty establishing the European Economic Community, 25 March 1957, UNTS 298, 3.

26

See Walus (note 18), 565.

27

Consolidated Version of the Treaty on European Union, 10 November 1997, OJ 1997 C 340, 3.

EC Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, OJ 1997 L 10, 13. 28

EU Directive 2012/18/EU of the European Parliament and of the Council on the control of majoraccident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC of 4 July 2012, OJ 2012 L 197, 1, para. 2. 29

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initiatives and action programmes demonstrate the growing awareness that a broader concept of disaster prevention in the encompassing sense of civil protection was needed.30 They resulted in Article 3 (1)(u) of the Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts (TEC) which acknowledged disaster prevention and civil protection as one of the then EEC’s tasks, without, however, conferring a corresponding competence of whatever kind to the Community.31 Article 196 of the TFEU consequently is not an unforeseen but nevertheless novel clause and has been preshaped by Article III-284 of the Draft Constitutional Treaty. The origins of the current advanced Solidarity Clause, under Title VII, Article 222 of the TFEU, can also be traced back to the unsuccessful Constitutional Treaty and the previous debates on a draft constitution by the European Convention.32 A broad solidarity clause was meant to distinguish the political Union from a military alliance based on restrictive solidarity, in the sense of mutual defence (enshrined in Article 42 (7) of the (Lisbon) Treaty on European Union (TEU)).33 The European Convention’s Working Group VIII on Defence made this intention quite clear, stating that: “[…] optimizing the interdisciplinary character of the Union’s approach, in order to respond effectively to new challenges and to indicate what distinguishes the European Union from a military alliance.”34 A former French Minister and European Commissioner, advocated for a stronger EU role, not only in dealing with external threats but also with internal disasters, be

30 For an detailed history, see Schwartz (note 17), 21 et seq. Furthermore, see Bings (note 23), Art. 196 TFEU, paras. 8 et seq. 31

Bings (note 23), Art. 196 TFEU, para. 11.

Treaty establishing a Constitution for Europe, 16 December 2004, OJ 2004 C 310, 1; see Theodore Konstadinides, Civil Protection in Europe and the Lisbon ‘solidarity clause’. A genuine legal concept or a paper exercise?, Uppsala Faculty of Law, Working Paper No. 3 (2011), 6, available at: http://www2.statsvet.uu.se/LinkClick.aspx?fileticket=ywEQQ722UuI%3D&tabid=3159&languag e=sv-SE (accessed on 20 November 2012); Myrdal/Rhinard (note 11), 2. 32

Consolidated version of the Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13. See Myrdal/Rhinard (note 11), 2; Ulrich Becker, Art. 222 TFEU, in: Jürgen Schwarze (ed.), EU-Kommentar (3rd ed. 2012), para. 1. 33

34 European Convention, Working Group VIII, Revised draft report from the Working Group on Defence, Working Document 22 REV 1, WD 22 REV 1, WG VIII, 6 December 2002, 17. Reference to this quote is also made by Konstadinides (note 32), 8.

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they natural or man-made.35 A contextualisation of humanitarian aid (now Article 214 of the TFEU) and disaster response (now Article 222 of the TFEU) was the concept, and the call for an overall solidarity clause, the consequence. Finally, a clause was adopted by the European Convention in the form of Article I-43 of the Draft Constitutional Treaty36 (although with a strong focus on terrorism, given the Madrid attacks of 2004 which were still fresh in public memory).37 The very idea of this solidarity clause survived the failure of the Constitutional Treaty and was reintroduced in the Lisbon Reform Treaty, finally becoming the current Article 222 of the TFEU. One has to put this historical development in context. Following 9/11 and the bombings in Madrid and London, the fragile balance between freedom and security has been challenged on the national plane.38 In parallel, after Lisbon, European security law has been expanding beyond the formerly established margins of the Common Security and Defence Policy,39 to include the use of military instruments for the implementation as well as the enforcement of civilian aims.40 It goes without saying that this cannot be put in accordance with the traditional notion of criminal law and, even more importantly, with the separation between military powers and the police.41 This moreover can – and will – have some impact on the development of

Michel Barnier, Report of 9 May 2006, For a European civil protection force, available at: http://ec.europa.eu/archives/commission_2004-2009/president/pdf/rapport_barnier_en.pdf (accessed on 22 November 2012). 35

36

Art. I-43 of the Treaty establishing a Constitution for Europe (note 32).

37

Myrdal/Rhinard (note 11), 2.

Markus Kotzur, Grundfragen einer europäischen Sicherheitspolitik, EuR 44 (2009), Special Issue No. 3, 7. 38

39 Jan Wouters/Stephanie Bijlmakers/Katrien Meuwissen, The EU as a Multilateral Security Actor after Lisbon: Constitutional and Institutional Aspects, Leuven Centre for Global Governance Studies, Working Paper No. 80, February 2012, 4 et seq., available at: http://ghum.kuleuven.be/ggs/publications/ working_papers/new_series/wp71-80/wp80.pdf (accessed on 20 November 2012). 40

Konstadinides (note 32), 4 et seq.

See Art. 87 (a) of the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 11 July 2012, BGBl. I, 1478 (Basic Law). In general, see Markus Thiel, Die ‘Entgrenzung’ der Gefahrenabwehr: Grundfragen von Freiheit und Sicherheit im Zeitalter der Globalisierung (2011). 41

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national laws, too.42 And finally, this will make necessary the need for an intensive political as well as scientific debate on the notion of solidarity.

III. Disaster Preparedness and Response in Context: The Principle of Solidarity As Schmalenbach et al., outlined in a current research proposal of the Salzburg Centre of European Union Studies, arguing that the notion of ‘solidarity’ is “rather lavishly if not inflationary” used in the Lisbon Treaty and is ambiguous in its content: solidarity can simply be a ‘moral orientation’ of pre-legal nature or amount to a ‘legal duty’.43 It can be used in a descriptive or normative way, and can even purposefully be used as a means of policymaking and social engineering. Different concepts of society might go hand in hand with different notions of solidarity: for example the Christian ideal of charity or, the Islamic principle of Zakāt, both demanding to give a fair share of one’s wealth to the poor and needy.44 After 1789, fraternité was conceived as a political, philosophical, and legal concept within post-revolutionary France and beyond.45 Given this broad history of ideas-based array of contexts and subtexts, the ‘solidarity language’ of the TEU leaves an equally broad room for speculation and requires context-sensitive interpretative scrutiny. On the one side, an encompassing definition is most unlikely to be extrapolated from the various ‘solidarity’ provisions,46 and on the other, if and where the written law so often refers to solidarity as an established legal concept, it is undoubtedly more than a rhetorical device. On the use of the German Armed Forces (Bundeswehr) in cases of internal crisis, see in particular the recent decision of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht), 2 PBvU 1/11 of 3 July 2012; reprinted in: NVwZ 31 (2012), 1239. For a first comment on the decision, see Manuel Ladiges, Der Einsatz der Streitkräfte im Katastrophennotstand nach dem Plenarbeschluss des Bundesverfassungsgerichts, NVwZ 31 (2012), 1225 (with critical remarks on the Court’s reasoning). 42

43 Kirsten Schmalenbach/Sonja Puntscher Riekmann/Doris Wydra, The ambiguous Concept of Solidarity in EU-Law, legal duty or moral orientation (2012), available at: http://www.uni-salzburg.at/ portal/page?_pageid=465,1835853&_dad=portal&_schema=PORTAL (accessed on 30 October 2012). Furthermore, see Becker (note 33), Art. 222 TFEU, para. 1. 44

Campanelli (note 5), para. 5. In general, see Volkmann (note 15), 52 et seq.

45

Volkmann (note 15), 52.

An often offered general dictionary definition refers to “a relation between persons belonging to a community of interests, entailing for some moral obligation not to harm the others and to assist them,” see Campanelli (note 5), para. 5. 46

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Article 2 of the TEU, addressing the EU’s basic values, declares that these values derive from a society upholding, among others, the principle of solidarity.47 Besides plain economic interdependence, a political community needs a more demanding bonum commune orientation which not only reflects the different national notions of their ‘common good’ but also has a clear focus on a common European bonum commune.48 Beyond that, the bonum commune-ideal might – in today’s globalised world more so than ever before – even require a Kantian focus on humankind fundamentally.49 Consequently, Article 3 of the TEU ranks the bonum commune-relevant solidarity among the EU’s aims and purposes, promoting co-operative solidarity among the Member States (Article 3 (3) of the TEU) and in the global realm (Article 3 (5) of the TEU).50 In the inter-governmental field of the common foreign and security policy,51 ‘mutual political solidarity’ is a prerequisite for being capable of acting at all (Articles 24 (2) and 24 (3) of the TEU). Not surprisingly, solidarity and loyalty are of (and stem from) the same spirit as Article 24 (3) of the TEU, which refers to a ‘spirit of loyalty and mutual solidarity’,52 re-emphasised in the voting procedure (as defined in Article 31 of the TEU). Where a unanimous decision-making is required, the risk of a blockade or obstructive actions of the Member States refraining from a vote would

47 Rudolf Geiger, Art. 2 TEU, in: id./Daniel-Erasmus Khan/Markus Kotzur (eds.), EUV/AEUV: Kommen-tar (5th ed. 2010), para. 4; Christian Calliess, Europa als Wertegemeinschaft – Integration und Identität durch europäisches Verfassungsrecht?, JuristenZeitung (JZ) 59 (2004), 1033; Christof Mandry, Europa als Wertegemeinschaft (2009). 48 On the current debate, see the examples discussed in Adrienne Héritier (ed.), Common Goods: Reinventing European and International Governance (2002). 49 On the humankind-orientation of Kantian legal theory, see Immanuel Kant, Metaphysik der Sitten, Einleitung (1797). For Kant it is the quality of being part of humankind that gives the individual his or her inalienable freedom. However, already for Kant the personal freedom of the individual was in practical need for an allgemeines Gesetz that could harmonize the spheres of freedom of the various individuals: “Tritt in einen Zustand, worin Jedermann das Seine gegen jeden Anderen gesichert sein kann,” the so-called lex iustitiae, id., Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre, Eintheilung der Rechtslehre, A (1797). 50 Armin von Bogdandy, Grundprinzipien, in: id./Jürgen Bast (eds.), Europäisches Verfassungsrecht (2nd ed. 2009), 13, 69 et seq. Furthermore, see Martina Lais, Das Solidaritätsprinzip im europäischen Verfassungsverbund (2007). 51

Karen E. Smith, European Union foreign policy in a changing world (2nd ed. 2008).

Elfriede Regelsberger/Dieter Kugelmann, Art. 24 TEU, in: Rudolf Streinz (ed.), EUV/AEUV (2nd ed. 2012), paras. 8 et seq. It is this very interdependence of solidarity and loyalty that makes the Union a Solidargemeinschaft, see Peter Häberle, Europäische Verfassungslehre (7th ed. 2011), 709. 52

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otherwise be too high.53 The mutual defense clause in Article 42 (7) of the TEU can also be seen as an expression of solidarity (‘mutual aid and assistance’) but it is, of course, much more narrowly shaped.54 In a broader sense, all policies in the area of freedom, security and justice are based upon the principle of solidarity which thus becomes a constitutional element within the EU’s cooperative architecture (Articles 67 (2) and 80 of the TFEU).55 As Konstadinides recently put it: In the area of security and defence, solidarity has acquired a new legal dimension, which not only has it consolidated the old collective defence provisions of the WEU and NATO Treaties but it has also formulated an EU response to events such as 9/11, the more recent terrorist bombings of Madrid and London, earthquakes and pandemics.56

Moreover solidarity is required when economic difficulties arise, not only within times of crisis and not limited to matters of the Monetary Union (Articles 122 and 143 of the TFEU).57 A ‘spirit of solidarity’ is present in the field of energy policies as well.58 Most obviously, terrorist attacks, natural or man-made disasters require solidarity which is literally made explicit by Title VII, Article 222 of the TFEU. One may, however, be misled and take semantics for substance here. A still prevailing tendency to restrain solidarity either to the private sphere (e.g. family, friends etc.), smaller political entities (e.g., the neighbourhood, municipalities etc.), or the national Schicksalsgemeinschaft (common destiny),59 makes it rather difficult to establish a solidarity-driven interpretation of EU law. Things become a bit clearer if one focuses on the nexus between solidarity and other (constitutional) principles of the EU. Even

53

Regelsberger/Kugelmann (note 52), Art. 31 TEU, para. 6.

Myrdal/Rhinard (note 11), 1; Wouters/Bijlmakers/Meuwissen (note 39), 9. In general, see Sebastian Graf von Kielmansegg, Die Verteidigungspolitik der Europäischen Union (2005). 54

Markus Kotzur, Art. 80 TFEU. in: id./Rudolf Geiger/Daniel-Erasmus Khan, EUV/AEUV: Kommentar (5th ed. 2010), para. 1. 55

56

Konstadinides (note 32), 5.

See, e.g., Ulrich Häde, Die Wirtschafts- und Währungsunion im Vertrag von Lissabon, EuR 44 (2009), 200; id., Haushaltsdisziplin und Solidarität im Zeichen der Finanzkrise, Europäische Zeitschrift für Wirtschaftsrecht 20 (2009), 399. 57

58 Jan-Frederik Braun, EU Energy Policy under the Treaty of Lisbon Rules: Between a new policy and business as usual, in: European Policy Institutes Network, Working Papers No. 31/2011, available at: http://www.ceps.eu/ceps/dld/4250/pdf (accessed on 20 November 2012).

Dieter Senghaas instead speaks of a global Schicksalsgemeinschaft, see id., Weltinnenpolitik – Ansätze für ein Konzept, Europaarchiv 1992, 643, 646 et seq. 59

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though loyalty has to be clearly distinguished from solidarity,60 as loyalty without a minimum degree of solidarity would theoretically be inconceivable and practically impossible. Even more inseparably intertwined are the notions of solidarity and legitimacy. The successful integration of any polity to a very high degree depends on what Weiler in his famous essay on “The Transformation of Europe” has called – despite a potential loss of input-legitimacy – ‘social legitimacy’. Weiler says “[w]hat becomes crucial for the integration process is the social legitimacy of the new integrated polity despite the loss of total control over the integrated policy areas by each polity.”61 Solidarity, furthermore, has a human rights basis not only with reference to ‘solidarity rights’ but also when focusing on the human based ‘duty to protect’ the affected individuals in cases of disasters.62 Last but not least, solidarity can be seen as a rationale: as “a way of rationalizing collective responses towards a range of new threats.”63 The solidarity rationale ‘still awaits’, as Schmalenbach et al. say, “its litmus-test in European Court rooms.”64 That the related principle of loyalty has so far been rather successfully brought to life,65 gives rise to hope. And even with a clear statement from Luxemburg still missing, the constitutional quality of the solidarity principle is strongly supported by its legitimising and rationalising function.

60

Armin Hatje, Loyalität als Rechtsprinzip der EU (2001), 16 et seq.

Joseph Halevi Horowitz Weiler, The Transformation of Europe, Yale Law Journal 100 (1991), 2403, 2471. 61

62

In detail, see Focarelli (note 8), paras. 8 et seq.

63

Konstadinides (note 32), 7.

Whether or not the European Stability Mechanism (ESM) and the ‘Greek Case’ will be the long awaited ‘litmus-test’ for the European Court of Justice (ECJ) is another question. 64

See, e.g., ECJ, Case C-101/91, Commission v. Italy, 1993 ECR I-00191, para. 23. Also see ECJ, Case C-344/98, Masterfoods Ltd. v. HB Ice Cream Ltd., 2000 ECR I-11369, paras. 55 et seq. which has been cited and applied by the German Federal Court of Justice (FCJ) (Bundesgerichtshof), XI ZR 54/09 of 15 November 2011, available at: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document. py?Gericht=bgh&Art=en&nr=58519&pos=0&anz=1 (accessed on 21 November 2012), para. 41, providing a practical example of how loyal cooperation operates in a jurisdictional multilevel system. 65

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IV. Disaster Preparedness and Response in Detail: The Substance of Articles 196 and 222 of the TFEU A. An Integrated European Disaster Response – The Theoretical Framework

Wherever solidarity between public entities is at stake, the dichotomy of autonomy and readiness for mutual help and assistance becomes obvious. To make it even more explicit: solidarity is about exercising as well as limiting sovereignty. Article 196 (1) of the TFEU obliges the EU to “encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters,” and expressly names the reasons for this cooperation: (a)

to support and complement Member States’ action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters within the Union;

(b)

to promote swift, effective operational cooperation within the Union between national civil- protection services;

(c)

to promote consistency in international civil-protection work.

Generally speaking, cooperative risk prevention aims at information, precaution, and network building.66 What it implicitly presupposes is a ‘spirit of solidarity’ between those who share the responsibility to cooperate.67 In that regard, Article 222 (1) of the TFEU is more outspoken, as it mandates “the [EU] and its Member States [to] act jointly in a spirit of solidarity.” Further, the wording discloses a ‘supranational intent’ of the solidarity clause, clearly going beyond intergovernmental obligations.68 This ‘supranational intent’, however, requires the infrastructure of an ‘Integrated European Administration’.69 Such an Integrated European Administration has also 66

See Schwartz (note 17), 15.

For the general scope of EU disaster preparedness, disaster response, and civil protection, see also the communications of the Commission, e.g., COM(2010), 600 final, 26 October 2010. 67

68

Myrdal/Rhinard (note 11), 6.

Jörg Philipp Terhechte, Einführung: Das Verwaltungsrecht der Europäischen Union als Gegenstand rechtswissenschaftlicher Forschung – Entwicklungslinien, Prinzipien und Perspektiven, in: id. (ed.), Verwaltungsrecht der Europäischen Union (2011), § 1, para. 14; Eberhard Schmidt-Aßmann, Einleitung: Der Europäische Verwaltungsverbund und die Rolle des Europäischen Verwaltungsrechts, in: id./Bettina Schöndorf-Haubold (eds.), Der Europäische Verwaltungsverbund (2005), 1. 69

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a constitutional dimension and, as already indicated above, invites reflections on the concept of national sovereignty in general. Instead of formerly closed nation States, which might volunteer to cooperate in cases of an attack or a disaster, the integrated EU implies the picture of shared sovereignties between the EU and its Member States.70 The consequence thereof is a supranational mechanism of disaster response. Having traditional concepts of sovereignty71 in mind,72 the idea of shared sovereignties doubtlessly presents a provocation. Understanding and conceptualising sovereignty, however, depends on the specific historical context of ever-changing political orders:73 from feudalism to the Westphalian system of 1648, from 19th Century constitutionalism to emerging democracies in the post-colonial world, and from early forms of institutionalised international cooperation to recent global governance structures comprising State and non-State actors.74 Widespread tendencies to treat sovereignty as some mystical absolute75 are thus to be disapproved for a very obvious reason: they are ahistorical and disregard the intrinsic procedural structures of how political orders are built.76 Thus, sovereignty today corresponds to the European scheme of integrated political entities as much as it helped to build up, further and strengthen the very process of integration.77

70 See Gráinne de Búrca, Sovereignty and the Supremacy Doctrine of the European Court of Justice, in: Neil Walker (ed.), Sovereignty in Transition: Essays in European Law (2003), 449. 71

Jean Bodin, Six Livres de la République (1576).

See for further reference Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (1999), 123 et seq. (On Sovereignty and Post-Sovereignty). 72

Francis Harry Hinsley, Sovereignty (1986); Helmut Steinberger, Sovereignty, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. 10 (1987), 397; Alfred Verdross/Bruno Simma, Universelles Völkerrecht (3rd ed. 1984), 25. 73

As to the latter one, see Anthony Arnull, What is Governance, European Law Review (ELR) 26 (2001), 411; Matthias Ruffert, Demokratie und Governance in Europa, in: Hartmut Bauer/Peter M. Huber/Karl-Peter Sommermann (eds.), Demokratie in Europa (2005), 319, 321, footnote 5. 74

75 Dealing with that problem, see Albert Bleckmann/Bardo Fassbender, Art. 2 (I), in: Bruno Simma (ed.), The Charter of the United Nations: A Commentary, vol. 1 (2002), 2; Stephen D. Krasner, Sovereignty: Organized Hypocrasy (1999). 76 Rholand Lhotta, Sovereignty and Symbolization, Rechtstheorie 28 (1997), 347, 347. Lhotta speaks of sovereignty as a ‘historical category’. 77 In general, see Ludger Kühnhardt, European Integration: Challenge and Response (2006); Utz Schliesky, Souveränität und Legitimität von Herrschaftsgewalt: Die Weiterentwicklung von Begriffen der Staatslehre und des Staatsrechts im europäischen Mehrebenensystem (2004).

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This holds not only true for the concept of sovereignty as such, but also for the constitutional architecture it forms a part of. The EU displays a multi-layered structure of overlapping constitutional regimes often referred to as ‘multi-level constitutionalism’.78 Others speak – to avoid any hierarchical implications – of ‘constitutional pluralism’.79 Whichever descriptive model one chooses, it addresses the “simultaneous presence of various integrated constitutional levels in the same legal space.”80 This ‘presence’, however, is – as sovereignty – not static but delineates an “ongoing process of establishing new structures of government complementary to and building upon – while also changing – existing forms of self-organisation of the people or society.”81 The multi-layered structure views human relationships (as well as order building mechanisms necessary for human relationships in freedom, peace, and security) as not dependent on just one legal system. Terms like polysytémie normative82 or ‘legal pluralism’,83 clearly address the mixed texture of the EU’s legal order. This order has to take into account that different (and differentiated) sets of norms do exist on the sub-national, national, and regional levels which, overall, is framed by public international law or other relevant transnational regimes. In parallel, EU law has a strong effect on domestic regulation: in decentralised political systems and sub-national levels as

78 Ingolf Pernice, The Treaty of Lisbon: Multilevel Constitutionalism in Action, Columbia Journal of European Law 15 (2009), 349; id., Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?, Common Market Law Review 36 (1999), 703. 79 Neil Walker, The Idea of Constitutional Pluralism, Modern Law Review 65 (2002), 317; Miguel Maduro, Contrapunctual Law: Europe’s Constitutional Pluralism in Action, in: Neil Walker (ed.), Sovereignty in Transition (2001), 21. 80 Antonio D’Atena, The European Constitution’s Prospects, in: Hermann-Josef Blanke/Stelio Mangiameli (eds.), The European Union after Lisbon: Constitutional Basis, Economic Order and External Action (2012), 3, 13. 81 Pernice (note 78), 703; id., The Global Dimension of Multilevel Constitutionalism: A Legal Response to the Challenges of Globalisation, in: Pierre M. Dupuy/Bardo Fassbender/Malcolm N. Shaw/ Karl-Peter Sommermann (eds.), Völkerrecht als Wertordnung/Common Values in International Law: Festschrift für Christian Tomuschat (2006), 973. 82

André-Jean Arnaud, Pour une pensée juridique européenne (1991).

Jacques Vanderlinden, Le pluralisme juridique: essai de synthèse, in: John Gillissen (ed.), Le Pluralisme Juridique (1971), 19; Keebet von Benda-Beckmann, Transnational dimension of legal pluralism, in: Wolfgang Fikentscher (ed.), Begegnung und Konflikt – eine kulturanthropologische Bestandsaufnahme (2001), 33; Franz von Benda-Beckmann, Who’s afraid of legal pluralism, Journal of Legal Pluralism 47 (2002), 37; Anne Griffiths, Legal Pluralism, in: Reza Banakar/Max Travers (eds.), An Introduction to Law and Social Theory (2002), 289. 83

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well.84 From all these observations it becomes clear that EU membership implies ‘reciprocal intrusiveness’ which might at the end of the day bring about “a powerful sense of solidarity”85 and of multi-level solidarity.

B. Placing Articles 196 and 222 of the TFEU within the Treaty’s Structure and System

1. Competing Competencies The Treaty of Lisbon introduced, under Title XXIII, with ‘Civilian Protection’ as a heading, Article 196 of the TFEU, which gives competence to the EU in dealing with the prevention and protection of natural or man-made disasters. This clause, however, is not the only factor that determines EU powers in addressing issues of disaster prevention. In particular, more specific sectorial competences make clear that the scheme of Article 196 of the TFEU will not in all cases prevail as lex specialis. For example in relation to pandemics, Article 168 (1) of the TFEU, which addresses a system of “monitoring, early warning of and combating serious cross-border threats to health,” provides a more appropriate competence. Neither the wording, nor the purposes of Articles 196 (1) or 168 (1) of the TFEU give a clear answer to that question.86 Some further examples confirm the complexity of the issue.87 In the area of transport, Article 91 (1)(c) of the TFEU foresees “measures to improve transport safety” including the prevention of manifold potential man-made disasters. Article 174 of the TFEU, concerning “economic, social, and territorial cohesion,” has an eye on “regions which suffer from severe and permanent natural or demographic handicaps.” Even more obvious is the link between disaster prevention and environmental policies. Article 191 (1) of the TFEU obliges the EU to promote “measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change” – the latter part forbearing the Sascha Rolf Lüder, Katastrophenschutz in der Europäischen Union und seine Auswirkungen auf das nordrhein-westfälische Recht, in: Nordrheinwestfälische Verwaltungsblätter 23 (2009), 251. 84

85

Sven Biscop, The European Security Strategy: A Global Agenda for Positive Power (2005), 124.

86

Schwartz (note 17), 43.

87

Ibid., 43 et seq.

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risk of a global catastrophe. Energy security, as delineated under Article 194 (1)(b) of the TFEU to “ensure security of energy supply in the Union,” also, aims to prevent possible disasters caused by energy failure. Article 214 (1) of the TFEU under the ‘Humanitarian Aid’ title extends the EU’s responsibility to prevent disasters and to provide for assistance to non-Member States: Such operations shall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations.88

Humanitarian aid is the natural answer to a catastrophe if Article 21 (2) of the TEU read together with its subsection (g) is taken seriously and is intently perceived in its constitutional quality: The [EU] shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: […] (g): assist populations, countries and regions confronting natural or man-made disasters.

As a general rule, Article 196 of the TFEU should apply in all cases when and where a more specific sectorial competence clause does not call for a more specific connection.89

2. Decisive Contexts Notwithstanding this nexus-orientation, Article 196 of the TFEU has to be read in a particularly close systematic relation to Articles 122 and 222 of the TFEU, as well as Article 21 of the TEU. Pursuant to Article 122 (2) of the TFEU, the EU can provide financial assistance to a Member State that is affected by a (natural) disaster. For example a catastrophic flood in 2002,90 led to the creation of the EU Solidarity Fund.91 The solidarity clause of Article 222 of the TFEU, as shown above, has to be as closely contextualised with all the other solidarity provisions contained within the TFEU and TEU. Contrary to Article 196 of the TFEU, Article 222 of the TFEU In general, see Marco Kuhn, Humanitäre Hilfe der Europäischen Gemeinschaft (2000); Peter Walker/Daniel G. Maxwell, Shaping the humanitarian world (2009). 88

89

Schwartz (note 17), 63.

The Elbe River Flood of August 2002 has affected not only the eastern parts of Germany but also Poland and the Czech Republic. 90

91 See EC Regulation 2012/2002 of the Council of 11 November 2002 establishing the European Union Solidarity Fund, OJ 2002 L 311, 3, based on Art. 122 of the TFEU.

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places a strong emphasis on reactive measures (but does not completely exclude prevention, as evidenced in the language of ‘prevent’ and ‘protect’-adopted in Article 222 (1)(a) of the TFEU).92 Further, Article 21 (2)(g) of the TEU defines as an objective of the EU to assist populations, countries and regions facing natural or manmade disasters – revealing and reviving the implicit idea of a global social responsibility and solidarity.93 To make this solidarity work, provisions such as Articles 196 and 222 of the TFEU had to be created. Until the Lisbon Reform Treaty, as mentioned above, such explicit competences did not exist. However, civil protection was already formulated as a task of the former EC by virtue of Article 3 (1)(u) of the TEC. A purpose-oriented reading of that clause gave sufficient – at least necessity-driven but nevertheless (or therefore?) very well disputed – reasons to base anti-disaster programmes and measure on Article 308 of the TEC (present Article 352 of the TFEU).94 Civil protection is part of the competences accorded to the EU to support, coordinate and to supplement the actions of Member States pursuant to Article 6 (f) of the TFEU. Therefore and strictly relying on the principle of conferral, under Article 5 (2) of the TEU,95 Member States remain primarily responsible for the matter; the principle of subsidiarity,96 mutual consideration and obligations to solidary action have to be taken into account. This is evinced in first line of Article 196 (1) of the TFEU which gives the EU the capacity to promote cooperation between the Member States, representing a sole competence to coordinate; and the second line in Article 196 (2) of the TFEU, which incorporates a competence to support, coordinate and to supplement.97 92 For a different view, see Christian Calliess, Art. 222 TFEU, in: id./Matthias Ruffert, EUV/AEUV (4th ed. 2012), para. 23. 93

Markus Kotzur, Soziales Völkerrecht für eine solidarische Völkergemeinschaft?, JZ 63 (2008), 265.

One example is EC Council Decision 1999/847/EC of 9 December 1999 establishing a Community action programme in the field of civil protection, OJ 1999 L 327, 53. 94

95

Rudolf Streinz, Art. 5 TEU, in: id.(ed.), EUV/AEUV (2nd ed. 2012), paras. 8 et seq.

A very instructive analysis of the ‘subsidiarity-issue’ is provided by Antonio D’Atena, Die Subsidiarität: Werte und Regeln, in: Alexander Blankenagel/Ingolf Pernice/Helmuth Schulze-Fielitz (eds.), Verfassung im Diskurs der Welt: Liber Amicorum für Peter Häberle (2004), 327. 96

97 For a detailed analysis, see Schwartz (note 17), 66 et seq.; Martin Nettesheim, Die Kompetenzordnung im Vertrag über eine Verfassung für Europa, EuR 39 (2004), 511; Sebastian Krebber, Die Koordinierung als Kompetenzkategorie im EU-Verfassungsentwurf aus dogmatischer Sicht, Europäische Grundrechte-Zeitschrift 31 (2004), 592; Robert Schütze, Lisbon and the Federal Order of Competences: A Prospective Analysis, ELR 35 (2008), 709.

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3. An Overall Definition of the Term ‘Disaster’ Articles 196 and 222 of the TFEU as well as some of the other above-introduced context relevant provisions use the term disaster. This includes, often with difficult questions of demarcation, natural and man-made disasters. In addition the term implies the double criterion of a high threshold as to the characterisation and the magnitude of the event and, as a consequence thereof, the likelihood to overburden those institutions customarily responsible for the response measures.98 Schwartz99 refers to a well-known definition of the term ‘disaster’ or ‘catastrophe’ suggested by the United Nations as: a serious disruption of the functioning of a community or society causing widespread human, material, economic or environmental losses which exceed the ability of the affected community or society to cope using its own resources.100

It is, from a purpose-oriented perspective, the exceptional which makes a disaster, a disaster.101 What again has to be qualified as exceptional cannot be generally defined but depends on the precise circumstances: the capacities, the man-power, the resources etc., of the very political community struck by a catastrophe.102 In summary, disaster and catastrophe are both descriptive terms surrounded by definitional uncertainties (e.g., a prima facie natural disaster can be the result of man-made failures to take affective precautionary and preventive measures).103 The best way to clarify their normative meaning is to focus on the very functions of disaster prevention law: the responsible political actors need clear competences to effectively deal with disasters and to ensure that necessitas habet legem.104 98

Schwartz (note 17), 17.

99

Ibid., 16.

International Strategy for Disaster Reduction (ISDR), Inter-Agency Secretariat, Living with Risk: A Global Review of Disaster Reduction Initiatives (2004), 17. 100

101 Martin Nettesheim, Art. 196 TFEU, in: id./Eberhard Grabitz/Meinhard Hilf (eds.), Das Recht der Europäischen Union, Loseblattsammlung (46th ed. 2011), para. 16.

Christoph Gusy, Katastrophenschutzrecht – Zur Situation eines Rechtsgebiets im Wandel, Die öffentliche Verwaltung 64 (2011), 85, 88. 102

103

Focarelli (note 8), paras. 5 et seq.

Although the rule necessitas non habet legem is of very old origin dating back to the Council of Paris in 829, it would – if applied strictly – undermine the rule of law. Therefore rules for situations of emergency safeguard not only a proper disaster response but also the existence of the legal order as such. 104

272 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 C. Obligations of the EU and Member States

1. EU Obligations Competences allow for action (empowerment) and build the basis for obligations. According to Article 196 of the TEU, the EU can pursue a civil protection policy of its own but to a limited extent only: mandating the EU to encourage cooperation between Member States, which necessarily includes the coordination thereof. In addition to coordination, support and promotion are possible, too. These measures, however, have to respect the sovereignty of the Member States. What is encouraged, supported (via resources, personnel etc.) and promoted, presupposes the competence on the side of those who receive the encouragement, support, and promotion – the Member States. The EU cannot, legally or factually, replace the sovereign powers of Member States.105 The same is true for complimentary measures, which have to abide by the intentions of the Member States.106

2. Civil Protection Measures Civil protection measures have to encompass the preventive ex ante and the reactive (or responsive) ex post perspective, and can be categorised in form of a cycle starting with prevention and precaution, followed by concrete reactions and responses when the disaster occurs, leading to reconstructive help and assistance after the occurrence of the disaster (post-care, rebuilding etc.).107 Given that phase-structured framework, Article 196 (1) of the TFEU calls for systems for preventing and protecting against natural or man-made disasters to be improved. The term ‘prevention’ has, adapting to the general framework, a twofold focus. In its preventive aspect it aims at preventing and avoiding future disasters, in its reactive aspect it asks for protective measures See Michael Kloepfer, Rechtliche Grundprobleme des Katastrophenschutzes, in: Klaus-Peter Dolde/Klaus Hansmann/Stefan Paetow/Eberhard Schmidt-Assmann (eds.), Verfassung – Umwelt – Wirtschaft: Festschrift für Dieter Sellner zum 75. Geburtstag (2010), 391, 393. 105

Schwartz (note 17), 77 et seq.

106

Ibid.

107

Kloepfer (note 104), 396; Schwartz (note 17), 19.

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necessary in order to avoid and to minimise damage caused by past disasters.108 This includes both natural disasters and man-made disasters (e.g. industrial or nuclear catastrophes). Whether or not terrorist attacks are covered by Article 196 of the TFEU is not exactly clear.109 Article 222 of the TFEU, explicitly addressing terrorism, might be seen as the more special norm that prevails.

3. EU Action According to Article 196 (1) of the TFEU, EU action comprises measures: i)

to support and complement Member States’ action at national, regional and local level (most notably concerning risk prevention, preparing civilprotection personnel and responding to natural or manmade disasters within the Union);

ii)

to promote swift, effective operational cooperation within the Union between national civil protection services (empowerment of cooperative civil protection); and

iii)

to improve the consistency in international civil-protection work (coordination of cooperation with an international focus).

All in all these provisions show that also in cases of a disaster, the autonomy of the Member States prevails. The EU is required to, following the principle of subsidiarity, only step in when and if the capacity of the Member States is insufficient. Consequently, solidarity in disaster prevention and response scenarios implies mutual respect in both directions. The EU has to respect the autonomy and sovereignty of the Member States, and Member States have to obey EU Law on disaster prevention, this means that both the EU and the Member States cannot exercise their sovereignty against the other’s effective enforcement. This ‘mutual respect’ is supported by another argument: the measures taken to achieve the objectives of Article 196 (1) of the TFEU are enacted by the European Council and the European Parliament in accordance with the ordinary legislative procedure. Legislative harmonisation is 108

Calliess (note 92), Art. 196 TFEU, para. 5.

109

In the affirmative, see Nettesheim (note 101), Art. 196 TFEU, para. 14; Schwartz (note 17), 33.

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prohibited, which once more re-emphasises the primary responsibility for civil protection as a task of the Member States.110 Article 222 of the TFEU displays the same architecture and requires the same mutual respect. Its solidarity scheme encompasses an explicit commitment of the Member States to assist each other if a terrorist attack, a natural or a man-made disaster occurs.111 Whilst resembling the earlier Petersberg Tasks112 – according to Article 17 (2) of the Treaty of Nice113 which encompassed humanitarian and rescue, peacekeeping, and combat forces in crisis management tasks, – the newly-shaped norm goes beyond conflict-prevention, post-conflict stabilisation or the fight against terrorism (which is addressed in Article 222 (1)(a) of the TFEU).114 Article 222 (1) of the TFEU requires the EU to mobilise all instruments at its disposal, including the military resources made available by the Member States. It, however, underlines that these resources belong to the Member States which make them available. This ensures that these resources (including institutional tools, mechanisms, and other resources) are available to the EU when needed, and can be effectively deployed through European means.115 Article 222 (2) of the TFEU, furthermore, facilitates mutual assistance of the Member States, and Article 222 (3) of the TFEU deals with the arrangements necessary for their implementation. Solidarity as conceived by Article 222 of the TFEU to a very important degree refers to an empowerment for – as far as possible – self-help. When and wherever this is insufficient the EU has to step in as effective coordinator – as an ‘agent of solidarity’.

Walus (note 18), 570 et seq.; Koen Lenaerts/Piet Van Nuffel, European Union Law (3rd ed. 2011), para. 11-062. 110

111

Konstadinides (note 32), 6.

See Western European Union, Council of Ministers, Petersberg Declaration, 19 June 1992, available at: http://www.weu.int/documents/920619peten.pdf (accessed on 9 February 2013). 112

Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, 10 March 2001, OJ 2001 C 80, 1. 113

114

Konstadinides (note 32), 8.

115

Myrdal/Rhinard (note 11), 6.

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V. Disaster Preparedness and Response in the Future: Short-Term and Long-Term Perspectives The EU will be able to improve its disaster management capabilities based on Article 196 of the TFEU by enacting secondary legislation in accordance with Article 196 (2) of the TFEU. This provision grants the EU inter alia the competence to further develop a cornerstone116 of its policies under Article 196 of the TFEU, in the form of the Monitoring and Information Centre (MIC). The MIC operates as a centre that collects and distributes information and that is able to coordinate disaster response by pooling resources of the Member States or even deploy experts directly in a field mission.117 Currently all these measures are provided by the MIC only in cases where a Member State files a respective request to the centre.

A. Prospects and Limits of EU-Managed Disaster Prevention

The European Commission, however, has suggested that the MIC could be developed further into an operational centre actively managing disasters, and perhaps assisted by a European catastrophe response unit.118 However, a more direct involvement of the EU in disaster prevention and response has been questioned from a legal perspective.119 It is indeed very doubtful whether the EU would have any competence to implement operational structures since Article 196 of the TFEU only allows for measures of a coordinating and supporting character. The disaster response structures of the Member States are not, as stated above, to be harmonised, and according to Article 196 (2) of the TFEU respective secondary legislation is explicitly prohibited. Therefore, with respect to future legislation, the guiding principle will be that EU 116 Walus (note 18), 567: “Das MIC stellt das zentrale Organ des europäischen Katastrophenschutzes dar”.

See European Commission, Monitoring and Information Centre, available at: http://ec.europa. eu/echo/policies/disaster_response/mic_en.htm (accessed on 30 October 2012). 117

Michel Barnier, Report of 9 May 2006, For a European civil protection force, available at: http://ec.europa.eu/archives/commission_2004-2009/president/pdf/rapport_barnier_en.pdf (accessed on 22 November 2012); see also COM (2008) 130 final, 3 March 2008. The Report and the measures suggested therein have been welcomed by the European Parliament in its Resolution 2009/C 286 E/04 of 19 June 2008, OJ 2009 C 286E, 15. 118

119

Calliess (note 92), Art. 196 TFEU, paras. 16 et seq., with further references to Walus (note 18), 564.

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institutions established under Article 196 of the TFEU, can only act if they have been invited to do so by a Member State. This principle does not only reflect the rationale of Article 196 of the TFEU, but it is also a result of a consequent implementation of the aforementioned principle of subsidiarity.120 On the other hand, in the light of the obligation of the Member States to loyal cooperation, and focusing on the principle of solidarity, Article 196 of the TFEU would allow the EU to request information about disaster prevention in general as well as in specific situations. In addition, the Member States would have to accept the deployment of observer and monitoring units gathering information about the incident. The most promising endeavour of the EU, currently in this field, is the aim for a European Disaster Response Training Network and the exchange of best practices (as a consequence of multi-level solidarity). Also standardisation (not to be mixed up with harmonisation) – like the EU-wide emergency number ‘112’ – may be improved significantly in the future.

B. Non EU-Members Participating in MIC

There may be further difficulties that might hinder the MIC from being transformed into a disaster management agency. They stem from the fact that apart from the EU Member States other countries, Croatia,121 the Former Yugoslav Republic of Macedonia, Iceland, Liechtenstein and Norway, are also members of the MIC mechanism. This particular structure of the MIC has to be seen as one of the system’s cooperative strengths. Since disasters do not stop at national borders, preparing for their occurrence and limiting their impact can only be successful if disaster prevention is understood as a truly common European task, transcending the boundaries of the EU and encompassing non-Member States. It might be possible that other States like Switzerland or the Ukraine could be future partners. This reach beyond the EU’s boundaries sheds additional light on its limited powers. Without amending the primary laws, assuming binding instructions and powers of the MIC or the European

120 Calliess (note 92), Art. 196 TFEU, para. 17. A stricter argumentation is brought forward by Schwartz who only reserves little influence for the subsidiarity principle in the present case since the competence type of Art. 6 of the TFEU does not allow for a substitution of Member State institutions and organizational structures, id. (note 17), 87. 121

Croatia is currently an acceding Member of the EU.

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Commission vis á vis the Member State, would constitute a violation of the existing competence-scheme established by Articles 2 (5), 6 and 196 of the TFEU.122 For the same reasons operative powers granted to EU disaster prevention forces, as recently called for by the European Commission and the Parliament123 as well, have their limits. The primary responsibility of the Member States and thus Article 2 (5) of the TFEU, according to which complimentary and supporting measures of the EU may not replace the competences of the Member States, would be disregarded. Only where Member States are not able to provide for the necessary manpower and infrastructure, the existing EU competences could pave the way to autonomous EU forces. This, however, given the recent capacities of the Member States is more than unlikely.124

VI. Conclusion Cooperation in cases of disasters is both a concern of public international law and an expression of solidarity (and also territorial cohesion) within the EU as shown by Article 3 (3) of the TEU.125 The simple notion that man-made as well as natural catastrophes, even if they happen within the boundaries of a State, are most likely to cause direct or indirect trans-boundary effects, is sufficient to explain the need for cooperation, mutual help and assistance.126 Intergovernmental co-operative structures, however, are not sufficient within a (constitutionally) integrated political community such as the post-Lisbon EU. What such an integrated community demands, and what the citizens demand from their community, is an integrated civil 122

Walus (note 18), 568.

Among various documents see, e.g., Towards a stronger European disaster response: the role of civil protection and humanitarian assistance, COM(2010) 600 final, 26 October 2010. 123

124

Walus (note 18), 571.

For the public international law dimension, see Andreas von Arnauld, Völkerrechtliche Informationspflichten bei Naturkatastrophen, Archiv des Völkerrechts 43 (2005), 279; Frank Ehrenberg, Internationale Katastrophenhilfe (2006). As to the cohesion aspect, see Jens Kersten, Der territoriale Zusammenhalt der Europäischen Union, in: Ulrich Battis/Wilhelm Söfker/Bernhard Stüer (eds.), Nachhaltige Stadt- und Raumentwicklung, Festschrift für Michael Krautzberger zum 65. Geburtstag (2008), 93. 125

126 Per Larsson/Eva Hagström Frisell/Stefan Olsson, Understanding the Crisis Management System of the European Union, in: Stefan Olsson (ed.), Crisis Management in the European Union – Cooperation in the Face of Emergencies (2009), 1, 6; Schwartz (note 17), 15.

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protection system based on the constitutional principle of solidarity. In that regard, the integrated EU mechanisms of disaster preparedness and response are both necessity-driven and identity-shaping.127 They do not only aim at disaster prevention in a narrow sense, but also aim more broadly at civil protection.128 This constitutional duty to protect as well as the ‘constitutional expectations’129 it raises are at the very heart of the EU’s identity as a political community, the nucleus of which is the citizen.130 To meet the particular interests and needs of this citizen, the supporting and supplementary competences of the EU have to be exercised. These supporting and supplementary competences may not replace the Member States primary responsibilities and competences. They may, however, very well serve as a blueprint for ‘multi-level solidarity’ within and beyond Europe. Moreover, they may call for a global environmental constitution,131 disaster preparedness and response being a part of it. They finally may and will address the humankind-dimension of disaster prevention. So this paper ends where it started: “I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.”132

Armin von Bogdandy/Stefan Korioth, Europäische und nationale Identität: Integration durch Verfassungsrecht?, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 62 (2003), 117, 156. Furthermore, see Yves Plasseraud, L’identité (2001); Andreas Kopp, Europäische Identität als Kategorie des Europarechts (2002); Wolfgang Graf Vitzthum, Die Identität Europas, EuR 37 (2002), 1; Karl M. Meessen, In Search of the European Identity, in: Wolfgang Benedek/Hubert Isak/Renate Kicker (eds.), Development and Developing International and European Law – Essays in Honour of Konrad Ginther on the Occasion of his 65th Birthday (1999), 441; Meinhard Hilf, Europäische Union und nationale Identität der Mitgliedstaaten, in: Albrecht Randelzhofer/Rupert Scholz/Dieter Wilke (eds.), Gedächtnisschrift für Eberhard Grabitz (1995), 157; Anthony D. Smith, National Identity and the Idea of European Unity, International Affairs 68 (1992), 55. 127

128 Schwartz (note 17), 20 with reference to Klaus-Georg Meyer-Teschendorf, Fortentwicklung und Rechtsgrundlagen für den Bevölkerungsschutz, Deutsches Verwaltungsblatt (DVBl.) 124 (2009), 1221.

Josef Isensee, Grundrechtsvoraussetzungen und Verfassungserwartungen, in: id./Paul Kirchhof (eds.), Handbuch des Staatsrechts, vol. V (2nd ed. 2000), § 115, paras. 7 et seq. 129

Already a classic: Ralf Dahrendorf, Citizenship and Beyond: The Social Dynamics of an Idea (1974), reprinted in: Bryan Stanley Turner/Peter Hamiliton (eds.), Citizenship. Critical Concepts, vol. II (1994), 292. 130

Daniel Bodansky, Is there an International Environmental Constitution?, Indiana Journal of Global Legal Studies 16 (2009), 565; Louis J. Kotze, Arguing Environmental Constitutionalism, Transnational Environmental Law 1 (2012), 1999; Douglas A. Kysar, Global Environmental Constitutionalism: Getting There from Here, Transnational Environmental Law 1 (2012), 83. 131

132

Donne (note 1), 394 et seq.

GENERAL ARTICLES

Jurisdictional Immunities of the State (Germany v. Italy): On Right Outcomes and Wrong Terms ROSANNE VAN ALEBEEK(

ABSTRACT: The judgment of the International Court of Justice (ICJ) Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening) holds little surprises; the Court was widely expected to find in favour of Germany, and it did. Through the lens of the ICJ judgment the paper analyses various arguments put forward in the debate on the relation between the law of State immunity and human rights. It argues that as far as the Italian ‘last resort’ argument is concerned the ICJ failed to do justice to the judicial function in international law by its insular focus on State practice where a an approach of systemic integration was called for. Even though an analysis based on systemic integration of the allegedly competing norms would (probably) not have led to a different outcome in the present case, the use of these different terms would have provided the outcome with a more solid basis. KEYWORDS: State Immunity, Human Rights, Jus Cogens, Access to Court, Right to Remedy, International Court of Justice, National Courts

I. Introduction On 3 February 2012 the International Court of Justice (ICJ) issued its judgment in the Jurisdictional Immunities of the State Case.1 The dispute between Germany and Italy centred on the tension between the centuries-old classical interstate rule of State immunity and the more recently developed rules and principles of international human rights law. In particular, the parties disagreed as to the effect of the jus cogens qualification of the rules violated by Germany during the Second World War (WWII) ( Assistant Professor of International Law at the University of Amsterdam; Research Fellow of the Amsterdam Center for International Law.

International Court of Justice (ICJ), Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, available at: http://www.icj-cij.org/docket/files/ 143/16883.pdf (accessed on 18 December 2012). 1

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on the applicability of the rule of State immunity in civil proceedings in which damages in respect of those violations are claimed. This legal question first arose in transnational human rights cases in courts of the United States (US) in the 1980s,2 and has since been discussed in quite a number of national courtrooms, as well as in the European Court of Human Rights (ECtHR).3 While some judges have expressed sympathy for the position that immunity does not apply to jus cogens violations, and Greek courts did even accept a jus cogens exception to State immunity before being overruled by the Greek Special Supreme Court, Italian courts have until date been the only courts to consistently allow civil claims against foreign States accused of jus cogens violations to proceed. In a string of cases, Italian courts have ordered Germany to pay damages to victims of the violations of International Humanitarian Law (IHL) committed by Germany during WWII. Germany asked the ICJ to find that Italy had violated its jurisdictional immunity on three separate counts: by the exercise of jurisdiction over these civil claims; by declaring Greek WWII-related judgments against Germany enforceable in Italy; and by taking measures of constraint against German State property in Italy in the enforcement of these Greek judgments. The judgment of the ICJ holds little surprises; the Court was widely expected to find in favour of Germany, and it did. While all in all the judgment offers no groundbreaking insights, and mostly repeats lines of argumentation well-rehearsed in doctrine over the past decades, it nevertheless deserves serious consideration. First, because it provides the most authoritative judicial answer to questions as to the relation between the rule of State immunity and developments in international human rights law till date; and second because of course, at closer glance, the reasoning of the ICJ on a couple of points does warrant critical reflection. This commentary first sets out to give an overview of the principal elements of the judgment (section II).4 Next, it zeroes in on See Adam C. Belsky/Mark Merva/Naomi Roht-Arriaza, Implied Waiver under the FSIA: A proposed Exception to Immunity for Violations of Peremptory Norms of International Law, California Law Review 77 (1989), 365; and e.g., US 9th Circuit Court of Appeals, Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992); US District of Columbia Circuit Court of Appeals, Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994). 2

3 ECtHR, Al-Adsani v. United Kingdom, Judgment of 21 November 2001, RJD 2001-XI, 79; id., Kalogeropoulou and Others v. Greece and Germany, Decision of 12 December 2002, RJD 2002-X, 415.

The commentary is not comprehensive, interesting issues like the jurisdiction of the ICJ, applicable law, immunity from enforcement jurisdiction, and immunity from adjudicative jurisdiction in the exequatur proceedings will not be discussed. 4

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the ICJ’s approach to the doctrine of sources and legal problem solution. It will be argued that the ICJ’s insistence that the answer to (most of) the questions before it was to be found in the practice of States, is an unfortunate distortion of the judicial function in international law (section III). In conclusion, regard will be had to the impact of the judgment on the development of the international law on immunities (section IV).

II. The Judgment from a Bird’s Eye View A. Background to the Case

The dispute between Germany and Italy arose from a string of judgments by Italian courts against Germany and German property.5 Germany argued that its immunity from jurisdiction and enforcement was violated on three separate counts: (1)

Italian courts had allowed civil claims of Italian victims of the Nazi-regime to be brought forward against Germany, as exemplified by the Supreme Court judgment in Ferrini;6

(2)

they had declared Greek judgments ordering Germany to pay damages to Greek victims of the Nazi-regime enforceable in Italy in exequatur proceedings; and

(3)

in the enforcement of these Greek judgments measures of constraint had been taken against Villa Vigoni – Germany State property situated in Italian territory and the seat of a cultural centre intended to promote cultural exchanges between Germany and Italy.

5 For the high-water marks, see Court of Cassation, Ferrini v. Germany, Appeal decision of 11 March 2004, Case No. 5044/4, reprinted in: International Law in Domestic Courts (ILDC) 19 (IT 2004); id., Germany v. Mantelli and Others, Preliminary Order on Jurisdiction of 29 May 2008, Case No. 14201/2008, reprinted in: ILDC 1037 (IT 2008), one of twelve identical decisions issued on the same day: Case No. 14202/2008, Case No. 14203/2008, Case No. 14204/2008, Case No. 14205/2008, Case No. 14206/2008, Case No. 14207/2008, Case No. 14208/2008, Case No. 14209/2008, Case No. 14210/2008, Case No. 14211/2008, and Case No. 14212/2008; id., Germany v. Amministrazione regionale della Vojotia, Grecia, Decision of 29 May 2008, Case No. 14199, reprinted in: Rivista di Diritto Internazionale 92 (2009), 594; id., Criminal proceedings against Milde, Appeal judgment of 13 January 2009, Case No. 1072/2009, reprinted in: ILDC 1224 (IT 2009); id., Germany v. Autonomous Prefecture of Vojotia, Final Appeal Judgment of 20 May 2011, Case No. 11163/2011, ILDC 1815 (IT 2011). 6

Id., Ferrini (note 5).

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Notably, the Italian government itself opposed the actions of its courts in no unclear terms, formally expressing agreement with the German position at several occasions,7 and in April 2010 it issued a decree suspending the enforcement measures under scrutiny by the ICJ.8 It is no secret that the Italian government took up the defence in this case with considerable reluctance. Since this commentary focuses on the reasoning of the ICJ on the immunity from adjudicative jurisdiction, only the relevant facts underlying the first complaint will be recounted here.9 Most claims before the Italian courts had their roots in the period after September 1943, when Italy left the Axis and joined the Allied Powers in their battle against Nazi-Germany. The response of the Germans was ruthless. While of course the facts of each and every case are different, two important features recur in several cases. Firstly, several claims concerned atrocities, committed by German forces on Italian territory, including targeted killing of civilians (especially women, children and elderly men) and the capture and deportation of civilians for use in forced labour camps. Secondly, several claims were instigated by former members of the Italian armed forces who were taken prisoner by German forces both in- and outside Italy, denied prisoner of war status, and deported to Germany and German-occupied territory to be used as forced labour and were generally treated poorly. These Italian Military Internees (IMIs) were excluded from the scope of a German Federal Law, which in 2000 established a Remembrance, Responsibility and Future Foundation to indemnify, inter alia, victims of forced labour.10 The official commentary to the Law explained in this regard that prisoners of war “may, according to the rules of internaSee Riccardo Pavoni, A Decade of Italian Case Law on the Immunity of Foreign States: Lights and Shadows, Italian Yearbook of International Law 19 (2009), 73, 81; Andrea Gattini, The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?, Leiden Journal of International Law (LJIL) 24 (2011), 173, 176. 7

8 Decree No. 63/2010 of 28 April 2010, converted into Law 98/2010, Gazzetta Ufficiale della Repubblica Italiana 147, 26 June 2010, available at: http://gazzette.comune.jesi.an.it/2010/147/1.htm (accessed on 18 December 2012).

ICJ, Jurisdictional Immunities of the State (note 1), paras. 20–36. See for an elaborate discussion of the underlying facts Christian Tomuschat, The International Law of State Immunity and its Development by National Institutions, Vanderbilt Journal of Transnational Law (VJTL) 44 (2011), 1105, 1107–1116. 9

10 Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft,” 2 August 2000, BGBL. I,1263, section 11. For a translation see The Law on the Creation of a Foundation “Remembrance, Responsibility and Future,” available at: http://www.stiftung-evz.de/eng/the-foundation/ law.html (accessed on 5 February 2013).

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tional law, be put to work by the detaining power;”11 and since the IMIs had been entitled to prisoner-of-war status even though they were denied that status at the time, the German Government decided not to include them in the compensation scheme. Several former IMIs challenged this exclusion in the German courts, but the German Federal Constitutional Court (FCC)(Bundesverfassungsgericht) ruled that the right to equality before the law guaranteed by the German Constitution was not violated by the Law, and also pointed out that there was no individual right to compensation for forced labour under international law.12 Finally, a factor that is relevant to all proceedings is the interstate settlement of war-related claims through the 1947 Peace Treaty between the Allied Powers and Italy13 and the 1961 Agreements between Italy and Germany.14 In view of its collaboration with the Nazis from 1940 to 1943, Italy had been excluded from the reparation scheme enshrined in the 1945 Potsdam Agreement15 and the 1946 Paris Reparation Agreement.16 With the 1947 Peace Treaty Italy was forced to waive […] on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945, except those arising out of contracts and other obligations entered into, and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-governmental claims in respect of arrangements entered into in the course of the war, and all claims for loss or damage arising during the war.17

11

ICJ, Jurisdictional Immunities of the State (note 1), para. 26.

Federal Constitutional Court (FCC)(Bundesverfassungsgericht), Italian Military Internees Case, 2 BvR 1379/01of 28 June 2004, reprinted in: ILDC 438 (DE 2004). 12

13

Treaty of Peace with Italy, 10 February 1947, UNTS 49, 1.

Treaty between the Federal Republic of Germany and the Italian Republic on the Settlement of certain Property-Related, Economic and Financial Questions, 2 June 1961, Counter-Memorial of Italy, Annex 3, available at: http://www.icj-cij.org/docket/files/143/16648.pdf (accessed on 18 December 2012); Treaty Concerning Compensation for Italian Nationals Subjected to National-Socialist Measures of Persecution, 2 June 1961, Counter-Memorial of Italy, Annex 4, available at: http://www. icj-cij.org/docket/files/143/16648.pdf (accessed on 18 December 2012). 14

1945 Potsdam Agreement, 2 August 1945, between United Kingdom, United States, and Russia, available at: http://usa.usembassy.de/etexts/ga4-450801.pdf (accessed on 18 December 2012). 15

Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, 14 January 1946, UNTS 555, 73. 16

17

Art. 77(4) of the Treaty of Peace with Italy (note 13).

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Nevertheless, through the two Agreements concluded in 1961 Germany offered compensation in relation to ‘property-law, economic and financial questions’18 and to Italian nationals who had been “subjected to National-Socialist measures of persecution.”19 Both agreements confirmed that Italy considered all claims of the Italian State and of Italian citizens against Germany under international law settled.20

B. Immunity from Adjudicative Jurisdiction

Italy advanced two distinct lines of argument to justify its exercise of civil jurisdiction over Germany in respect of WWII related claims. Firstly, it argued that State immunity does not apply “to torts or delicts occasioning death, personal injury or damage to property committed on the territory of the forum State” and that hence Italian courts were allowed to establish jurisdiction over claims relating to torts committed on Italian territory.21 This ‘territorial tort exception’ can be found in Article 11 of the 1976 European Convention on State Immunity (European Convention),22 in Article 12 of the still to enter into force 2004 UN Convention on Jurisdictional Immunities of States and their Property (UN Convention),23 and in all but one of the national immunity statutes.24 The ICJ refused to engage the question of whether the territorial tort exception as such had reached the status of customary international 18

See supra, note 14.

19

Ibid.

20

Art. 2 and Art. 3 of the respective agreements, see supra, note 14.

21

ICJ, Jurisdictional Immunities of the State (note 1), para. 62.

22

European Convention on State Immunity, 16 May 1972, ETS No. 74.

United Nations Convention on Jurisdictional Immunities of States and their Property, GA Res. A/59/38 of 2 December 2004 (the convention will enter into force after the 30th instrument of ratification has been deposited; there are thirteen ratifications to date). 23

24 United States Foreign Sovereign Immunities Act 1976, 21 October 1976, 28 U.S.C., Sec. 1605 (a)(5); United Kingdom State Immunity Act 1978, 20 July 1978, reprinted in: International Legal Materials (ILM) 17 (1978), 1123, Sec. 5; South Africa Foreign States Immunities Act 1981, 20 November 1981, Sec. 6, available at: http://www.dfa.gov.za/chiefstatelawadvicer/documents/acts/foreign statesimmunitiesact.pdf (accessed on 18 December 2012); Canada State Immunity Act 1982, 8 July 1982, reprinted in: ILM 21 (1982), 798, Sec. 6; Australia Foreign States Immunities Act 1985, reprinted in: ILM 25 (1986), 715, Sec. 13; Singapore State Immunity Act 1985, Sec. 7; Statute on the Immunity of Foreign States before Argentine Tribunals, Argentina Law No. 24.488 (1995), Art. 2 (e); Israel Foreign State Immunity Law 2008, Sec. 5; Act on the Civil Jurisdiction of Japan with respect to a Foreign State (2009), Art. 10. There is no such provision in State Immunity Ordinance (1981) of Pakistan.

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law; confining its inquiry to the specific issue of acts committed by armed forces in the course of an armed conflict instead.25 While the European Convention excludes all acts of armed forces from its scope26 a similar provision is absent from the UN Convention. Yet, the ICJ found that in light of the International Law Commission (ILC) Commentary,27 a statement by the Chairman of the Ad Hoc Committee,28 and the interpretative declarations of Norway and Sweden,29 Article 12 of the Convention “cannot be taken as affording any support to the contention that customary international law denies State immunity in tort proceedings relating to acts occasioning death, personal injury or damage to property committed in the territory of the forum State by the armed forces and associated organs of another State in the context of an armed conflict.”30 Through an extensive discussion of national legislation and judgments of national courts31 the ICJ set out to prove that this limited scope of Article 12 corresponds to customary international law requirements.32 The second line of Italian argument was of a broader scope, relying on the nature of the crimes forming the subject-matter of the claims before the Italian courts, and on the circumstances in which those claims were made. The argument consisted of 25

ICJ, Jurisdictional Immunities of the State (note 1), para. 65.

26

Ibid., paras. 67 et seq., referring to Art. 31 of the European Convention on State Immunity (note 22).

Ibid., para. 69. The 1991 Commentary to Art. 12 noted that the Convention does not apply to “situations involving armed conflicts,” see ILC, Report of the International Law Commission on the work of its thirty-second session Yearbook of the International Law Commission, 1991, vol. II (2), 46, para. 10). 27

ICJ, Jurisdictional Immunities of the State (note 1), para. 69. When presenting the Report of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property to the Sixth Committee the Chairman stated that “[o]ne of the issues […] raised was whether military activities were covered by the Convention. The general understanding has always prevailed that they were not,” see GA, Summary record of the 13th meeting of the Sixth Committee, 25 October 2004, UN Doc. A/C.6/59/SR.13 (2004), 6, para. 36. 28

ICJ, Jurisdictional Immunities of the State (note 1), para. 69. Both States attached (almost identical) interpretative interpretations to their instruments of ratification stating that “the Convention does not apply to military activities, including the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, and activities undertaken by military forces of a State in the exercise of their official duties,” see Declaration of Norway attached to the instrument of ratification deposited on 27 March 2006 and Declarations of Sweden attached to the instrument of ratification deposited on 23 December 2009, available at: http://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=III-13&chapter=3&lang=en (accessed on 18 December 2012). 29

30

ICJ, Jurisdictional Immunities of the State (note 1), para. 69.

31

Ibid., paras. 70–77.

32

Ibid., para. 78.

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three strands: (1) customary international law does not accord State immunity for war crimes and crimes against humanity, (2) the rule of State immunity is trumped by the jus cogens nature of the alleged violations, and (3) Italian courts were the last resort for the victims of these crimes to secure compensation. The ICJ moved to dismiss all three strands of the argument.33 In order to assess the scope of the customary rule of State immunity, it engaged in a lengthy examination of State practice, including national court decisions,34 national legislation,35 international conventions and especially the UN Convention and its drafting history.36 On the basis thereof it concluded that “under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict.”37 The ICJ was also not convinced by the second strand of the argument. Assuming for the sake of argument that the crimes committed by Germany have jus cogens status, the ICJ emphasised that there is no conflict between the substantive jus cogens prohibitions and the procedural rules on State immunity.38 There is, the ICJ concluded, no basis for the argument that “no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule.”39 The final strand of the argument clearly proceeded from the proposition that Germany still had an obligation to pay compensation to the categories of victims excluded from its compensation schemes. The ICJ dismissed the argument concluding that there is “no basis in the State practice from which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress.”40 Ibid., para. 82: It did so after first noting the logical problem inherent in the argument. If availability of immunity depended on the impleaded State having violated certain norms, the court would have to enter the merits of the case in order to answer the immunity question; but if the allegation of a violation would suffice “immunity could, in effect be negated simply by skilful construction of the claim”. 33

34

Ibid., paras. 83–85.

35

Ibid., para. 88.

36

Ibid., para. 89.

37

Ibid., para. 91.

38

Ibid., paras. 93–94.

39

Ibid., para. 95.

40

Ibid., para. 101.

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Having dismissed all the justifications for the exercise of jurisdiction advanced by Italy the ICJ concluded that Italy had breached its obligations towards Germany by the denial of immunity from jurisdiction by its courts.41 The ICJ was however not unanimous. Three dissents were issued, but also the separate opinion of Judge Bennouna can be seen to read as a dissent on substance. Judge Gaja’s dissent focused on the scope of the territorial tort exception.42 This exception, he argued, is one of the ‘grey areas’ of the law of State immunity in which “States may take different positions without necessarily departing from what is required by general international law.”43 Even if acts of the military were generally excluded from the territorial tort exception, Gaja argued, massacres of civilians and torture would not be covered by that exclusion, in view of the jus cogens character of the alleged breach and Article 41 (3) of the ILC Articles on Responsibility of States for Internationally Wrongful Acts.44 Accordingly, at least some of the decisions of Italian courts did not violate international law.45 Both the dissent of Judge Yusuf and the separate opinion of Judge Bennouna focused on the consequences of the failure to pay reparation for established violations of IHL and the absence of an alternative remedy in this regard. Judge Yusuf set out to establish that under international law States have an obligation to make reparations for violations of IHL and that individuals have a right to claim compensation for damages arising from those violations. According to Yusuf, Italian courts were entitled to assert jurisdiction because of two exceptional circumstances: the Italian military internees were excluded from eligibility for reparations by Germany, while Germany “admitted to the commission of serious violations of humanitarian law.”46

41

Ibid., para. 107.

ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge ad hoc Gaja, available at: http://www.icj-cij.org/docket/ files/143/16895.pdf (accessed on 18 December 2012). 42

43

Ibid., para. 9.

44

Ibid., para. 10.

45

Ibid., para. 12.

Id., Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge Yusuf, para. 59, available at: http://www.icj-cij.org/ docket/files/143/16895.pdf (accessed on 18 December 2012) (emphasis added). 46

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Judge Bennouna agreed with Judge Yusuf that “in exceptional circumstances – when a State presumed to be the author of unlawful acts rejects any engagement of its responsibility, in whatever form – that a State could lose the benefit of its immunity before the courts of the forum State.”47 “This case,” he wrote, “is distinguished by certain specific features: Germany admits its responsibility for the unlawful acts at issue before the Italian courts; and those acts took place, partly or entirely, on Italian territory,”48 without explaining how exactly these features influence his argumentation. He concurred in the operative part of the judgment, however, since he did not think Germany had ‘close[d] all doors’ to the settlement of the outstanding claims.49 Finally, Judge Cançado Trindade issued the only truly sweeping dissent. Discarding the rule of State immunity as belonging to the long-gone era of ‘inter-State myopia’50 he relied on “issues of principle and on fundamental values”51 and “[t]he more lucid contemporary international legal doctrine”52 to argue that “there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law.”53 While the Judge relied on a string of more or less well-known arguments, ranging from the rights of access to court, the right to a remedy, to the hierarchy of norms, the gist of his dissenting opinion is value- rather than rightsbased.

47 Id., Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Separate Opinion of Judge Bennouna, para. 15, available at: http://www.icj-cij.org/ docket/files/143/16895.pdf (accessed on 18 December 2012). 48

Ibid., para. 22. See also para. 33.

49

Ibid., para. 25

Id., Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge Cançado Trindade, para. 176, available at: http://www. icj-cij.org/docket/files/143/16891.pdf (accessed on 18 December 2012). 50

51

Ibid., para. 300.

52

Ibid., para. 303.

53

Ibid., para. 316.

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III. The Epistemology of International Law A. Introduction

The dispute between Germany and Italy in essence pivoted on clashing conceptions of the epistemology of international law, or the doctrine of sources if you will. Italy did not try to squeeze its arguments into the firmly established framework of the law of State immunity; in particular, it did not argue that jus cogens violations did not qualify as sovereign acts,54 or that a State violating jus cogens norms implicitly waives its right to immunity.55 Rather, Italy argued that the law of State immunity had undergone change.56 But where Germany relied on the absence of State practice evidencing such change, Italy argued that in the absence of practice an exception to State immunity could nevertheless be construed relying on a variety of rules and principles of international law that were clearly at variance with the rule of State immunity. As one commentator pointedly noted, “the substantive conflict between immunity and human rights goes hand in hand with a methodological dispute as to the sources and the proper rules of interpretation in international law.”57 These clashing conceptions equally explain to a large extent the difference of opinion between the majority of the ICJ and dissenting Judges Gaja, Yusuf and Cançado Trindade, as well as concurring Judge Bennouna.

54 See e.g., Belsky/Merva/Roht-Arriaza (note 2), 394; Andrea Bianchi, Immunity versus Human Rights: The Pinochet Case, European Journal of International Law (EJIL) 10 (1999), 237, 262; Jennifer A. Gergen, Human Rights and the Foreign Sovereign Immunities Act, Virginia Journal of International Law 36 (1996), 765, 783; Alexander Orakhelashvili, State Immunity and International Public Order, German Yearbook of International Law (GYIL) 45 (2002), 227, 236.

This argument has been developed to accommodate arguments in favour of a human rights exception within the strictures of national legislation and was first advanced by Belsky/Merva/RohtArriaza (note 2), 365. 55

The Italian defence reasoned however in two minds, conceding during the proceedings “that it is not clear at this stage whether this process will result in a new general exception to immunity – namely a rule denying immunity with respect to every claim for compensation arising out [of] international crimes,” see ICJ, Jurisdictional Immunities of the State (note 1), para. 86. 56

57 Thilo Rensmann, Impact of the Immunity of States and their Officials, in: Menno T. Kamminga/ Martin Scheinin, The Impact of Human Rights Law on General International Law (2009), 151, 160.

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In a pungent reaction to the ICJ’s judgment, one commentator wrote that “[t]here is nothing inherently correct or incorrect in a judicial determination such as this.”58 While the ‘relative indeterminacy’ of all law is axiomatic,59 and while undeniably judges face choices when interpreting international law, especially where different rules of international law are said to compete, the suggestion that international law is too indeterminate to allow authoritative claims as to the ‘correct’ outcome of judicial deliberation is rejected in this commentary. The reasoning of the majority and individual opinions will be analysed through the prism of principles of law ascertainment. To that end, the arguments advanced by Italy will be divided in three distinct categories. The hierarchy of norms argument relies on the attributes of the concept of jus cogens (section B); the territorial tort argument and the argument that customary international law does not accord State immunity for war crimes and crimes against humanity rely on the relatively straightforward identification of the scope of primary rules of international law through the two-tier theory of custom formation (section C); and the last resort argument relies on principles to resolve the conflict between allegedly competing norms (section D).

B. Limited Legal Consequences of Jus Cogens Violations

Where in its judgment in the Arrest Warrant Case the ICJ had failed to address the merits of the jus cogens argument, relying on the absence of State practice in support of a jus cogens exception to personal immunity instead,60 it squarely addressed the operation of the concept of jus cogens in its judgment in Jurisdictional Immunities of the State. In its judgment in Armed Activities on the Territory of the Congo the ICJ had already made clear that the rules regarding its own jurisdiction were not quashed 58 Andrea Bianchi, On Certainty, 16 February 2012, EJIL Talk, available at: http://www.ejiltalk. org/on-certainty/ (accessed on 18 December 2012).

See for this term in relation to international law Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), 36 et seq. 59

60 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3, para. 58. The Court attempted to downplay the difference in approach by referring to the Arrest Warrant Judgement in support of its rejection of the hierarchy of norms argument; see ICJ, Jurisdictional Immunities of the State (note 1), para. 95. See for a similar methodological problem ECtHR, Al-Adsani (note 3), para. 61.

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by the jus cogens nature of the crimes of which the defendant State stood accused.61 Arguably, the rule that the jurisdiction of the ICJ is always based on the consent of the parties before it shares essential characteristics with the rule of State immunity for acta jure imperii,62 and the Armed Activities judgment could be seen to forebode a dismissal of the hierarchy of norms argument in the Jurisdictional Immunities Case. The ICJ’s careful rebuttal of the hierarchy of norms argument in the judgment under consideration is in the view of this author persuasive. While several commentators have criticised the distinction between substantive and procedural law,63 and while indeed the dissenting opinion of no less than eight ECtHR judges in the Al-Adsani Case clothed the argument with some authority’64 it is difficult to see how the jus cogens qualification of the allegedly violated norms would render rules regulating the exercise of jurisdiction over these violations void.65 Sure, the absence of immunity for gross human rights violations may in the long run contribute to an enhanced respect for jus cogens norms (although there is little evidence to support such optimism), but that is an irrelevant consideration in the context of the ‘trumping’ power of jus cogens norms.66 This is not to say that there is no antinomy between State immunity and human rights norms – in fact, it will be argued below (section D) that the relation61 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda), Judgment of 3 February 2006, ICJ Reports 2006, 6, para. 64.

Robert Jennings, The Place of the Jurisdictional Immunity of States in International and Municipal Law, Vortrag vor dem Europa-Institut der Universität des Saarlandes, Saarbrücken, 6 November 1987 (1988), 3–4; James Crawford, International Law and Foreign Sovereigns: Distinguishing Immune Transactions, British Yearbook of International Law 54 (1983), 75, 80. 62

63 See e.g., Alexander Orakhelashvili, State Immunity and Hierarchy of Norms: Why the House of Lords Got it Wrong, EJIL18 (2007), 955, 964; Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty, EJIL 18 (2007), 903, 906 et seq.; Andrea Bianchi, L’immunité des états et les violations graves des droits de l’homme: la fonction de l’interprète dans la détermination du droit international, Revue Generale de Droit International Public 108 (2004), 63, 96; id., Denying State Immunity to Violators of Human Rights, Austrian Journal of Public and International Law 46 (1994), 195, 219. 64

ECtHR, Al-Adsani (note 3).

For a more elaborate rebuttal of the hierarchy of norms argument see e.g., Hazel Fox, The Law of State Immunity (2008), 150–156; Andrea Gattini, War Crimes and State Immunity in the Ferrini Decision, Journal of International Criminal Justice 3 (2005), 224; Thomas Giegerich, Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?, in: Christian Tomuschat/Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes (2006), 203. 65

66

The argument may be relevant in a different context see infra, section D (2).

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ship between the law of State immunity and the right of access to court and the right to a remedy deserves serious consideration – but it is an alleged antinomy between ‘ordinary’ rules of international law.

C. The Territorial Tort and Human Rights67 Exceptions: A Dispute over the Scope of Primary Norms

Dissenting Judge Gaja had argued that State practice on the territorial tort exception was not uniform and that “[in] this grey area States may take different positions without necessarily departing from what is required by general international law.”68 Dissenting Judge Yusuf similarly set out to discredit State practice in relation to the first strand of Italy’s second argument.69 Judge Yusuf observed that practice clearly attests to the fact that the scope and extent of State immunity, particularly in the area of violations of human rights and humanitarian law, which is currently characterized by conflicting decisions of national courts in its interpretation and application, remains an uncertain and unsettled area of international custom, whose contours are illdefined.70

State practice and opinio juris cannot, however, be discredited as a reliable source of State immunity law per se. Judge Gaja’s dissent on the scope of the territorial tort exception reverberates the judgment of the ECtHR in McElhinney v. Ireland.71 The ECtHR held that the territorial tort exception was not yet fully established under international law and that therefore Ireland’s refusal to accept the exception fell “outside any currently

This commentary will use the notions ‘jus cogens exception’ and ‘human rights exception’ interchangeably when referring to the argument that State immunity is not available when human rights have been grossly violated. 67

68

ICJ, Jurisdictional Immunities of the State, Dissenting Opinion Gaja (note 42), para. 9.

ICJ, Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge Yusuf, paras. 23–26, 44–50, available at: http://www.icjcij.org/docket/files/143/16893.pdf (accessed on 20 February 2013). 69

70

Ibid., para. 26.

ECtHR, McElhinney v. Ireland, Judgment of 21 November 2001, available via: http://www.echr. coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 71

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accepted international standards.”72 In a similar vein, Judge Gaja argues that in this area “States may take different positions without necessarily departing from what is required by general international law.”73 However, State practice and opinio juris on the question whether the territorial tort exception, if it is accepted to exist, applies to acts of the armed forces is not equally fragmentary. The reference to Italian and Greek cases seems inapposite with the former being the subject of the proceedings, and the latter being overruled by the special Supreme Court in Margellos,74 and while indeed most national immunity statutes do not explicitly exclude acts of the armed forces from the scope of the territorial tort exception this can hardly be seen to support the argument that State practice is diverse: no court has ever interpreted these statutes as excluding immunity for torts committed in armed conflict. Judge Gaja makes the valid point that the way in which the issue was dealt with in the context of the 2004 UN Convention does not excel in clarity, but all in all the travaux préparatoires support the position of the ICJ. There is no need to repeat the evidence advanced by the ICJ75 which convincingly established that reliance on the ‘grey-zone-bandwagon’ is hardly persuasive in the specific context of this case: it does not offer Italy solace as it did Ireland in the McElhinney Case. Also Judge Yusuf’s observations distort reality. In 2001 the ECtHR noted in AlAdsani that there was no ‘firm basis’ in State practice in support for an exception to State immunity when acts of torture are alleged.76 At the time, the only support could be found in some indirect statements of US lower courts, in the “State sponsor of terrorism exception” to the US Foreign Sovereign Immunities Act (FSIA) of 1976, and in Greek case law. The indirect support of the lower courts77 seems however irrelevant in light of the unambiguous confirmation of the US Supreme Court in Nelson v. Saudi Arabia that torture “however monstrous such abuse undoubtedly 72

Ibid., para. 38.

73

ICJ, Jurisdictional Immunities of the State, Dissenting Opinion Gaja (note 42), para. 9.

Special Supreme Court, Germany v. Margellos, Judgment of 17 September 2002, reprinted in: ILDC 87 (2002). 74

75 See for a broader discussion Andrew Dickinson, Status of Forces under the UN Convention on State Immunity, International and Comparative Law Quarterly (ICLQ) 55 (2006), 427. 76 ECtHR, Al-Adsani (note 3), para. 61. In the Kalogeropoulou Case (see supra, note 3) this was repeated in respect of crimes against humanity. 77

US 9th Circuit Court of Appeals, Siderman de Blake (note 2), 718.

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may be, a foreign [S]tate’s exercise of the power of its police has long been understood for purposes of the restrictive theory as peculiarly sovereign in nature.”78 Furthermore, the ‘State-sponsor of terrorism’ exception to the US FSIA79 has dubious evidentiary value since it is not accompanied by the necessary opinio juris. The exception provides that immunity will not be available in any case against a State designated as a State sponsor of terrorism “in which money damages are sought against a foreign State for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking.” The ICJ did not regard the exception relevant since “it has no counterpart in the legislation of other States.”80 That does however not discredit the practice as such (and is in fact no longer true, as will be explained below). More pertinent, and argued here, is the fact that the applicability of the exception turns on a political decision by the State Department81 and does not purport to have legal underpinnings.82 The exception should arguably be understood to confirm the US position that State immunity is not a matter of ‘right’ but of “grace and comity on the part of the United States.”83 Finally, the support in Greek case law that existed at the time84 has faded as a consequence of the 2002 judgment of the 78

US Supreme Court, Nelson v. Saudi Arabia, Judgment of 23 March 1993, 507 US 349 (1993), 361.

The exception was introduced by Sec. 221 of the Antiterrorism and Effective Death Penalty Act, 24 April 1996, Pub. L. No. 104–132, 110, Stat. 1214 (1996), and is since the National Defense Authorization Act for Fiscal Year 2008, 28 January 2008, Pub. L. 110–181, 122 Stat. 341 (2008), Sec. 1083 (b)(1), codified at 28 U.S.C. Sec.1605A. 79

80

ICJ, Jurisdictional Immunities of the State (note 1), para. 88.

At present four States have been thus designated: Cuba, Iran, Sudan, and Syria, list available at: http://www.state.gov/j/ct/list/c14151.htm (accessed on 5 February 2013). 81

82

See also Gattini (note 7), 174.

US courts regularly emphasise that foreign States do not have a right to immunity, but are granted immunity as “a matter of grace and comity on the part of the United States,” cf. e.g. Verlinden B.V. v. Central Bank of Nigeria, 461 US 480 (1983); Dole Food Company v. Patrickson, 538 US 468 (2003); Republic of Austria v. Altmann, 541 U.S. 677 (2004). Cf. in this sense also Lee M. Caplan, State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory, American Journal of International Law (AJIL) 97 (2003), 741 for support, and cf. more in general Jasper Finke, Sovereign immunity: Rule, Comity, or Something Else?, EJIL 21 (2010), 853. Notably, however, when the US Foreign Sovereign Immunities Act was introduced in 1976, the Committee of the Judiciary of the House of Representatives clearly was of a contrary opinion. In its report the Committee wrote that “[s]overeign immunity is a doctrine of international law under which domestic courts, in appropriate cases, relinquish jurisdiction over a foreign [S]tate.” See H.R. REP. NO. 94-1487, 3 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6622–6623. 83

84 Supreme Court, Germany v. Prefecture of Voiotia, Judgment of 4 May 2000, No. 11/2000, reprinted in: ILDC 287 (2000).

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Greek Special Supreme Court in Margellos.85 In fact, court practice in support of the State immunity rule has been growing steadily. In addition to the Greek Special Supreme court, the jus cogens exception has been addressed and rejected by UK,86 Canadian,87 French,88 Polish,89 New Zealand,90 German,91 and Slovenian92 courts. Some of these courts were bound by national immunity statutes, but they all assessed the jus cogens exception in terms of the scope of the international State immunity rule. Also the Court of Appeal of New South Wales in Australia addressed the issue,93 but while the court did cite in apparent approval the case law in support of State immunity,94 it eventually decided the immunity question on the basis of the specific terms of the Australian immunity statute rather than on the basis of considerations of international law.95 It is moreover notable that the recently adopted national immu-

85

Special Supreme Court, Germany v. Margellos (note 74).

House of Lords, Jones v. Ministry of the Interior of Saudi Arabia and Aziz, Appeal Judgment of 14 June 2006, [2006] UKHL 26, reprinted in: ILDC 521 (2006). 86

Court of Appeal of Ontario, Bouzari v. Islamic Republic of Iran, Judgment of 30 June 2004, 71 OR (3d) 675, reprinted in: ILDC 175 (2004); Ontario Superior Court of Justice, Arar v. Syrian Arab Republic, Judgment on Motion to Dismiss of 28 February 2005, reprinted in: ILDC 639 (2005); Court of Appeal of Quebec, Islamic Republic of Iran v. Hashemi, Judgment of 15 August 2012, Case No. 2012 QCCA 1449 (CanLII), available at: http://canlii.ca/t/fsc3n (accessed on 18 December 2012). 87

88 Court of Cassation, Bucheron Case, Judgment of 16 December 2003, Bulletin Civil I, No. 258; id., X Case, Judgment of 2 June 2004, Bulletin Civil I, No. 158; id., Grosz Case, Judgment of 3 January 2006, Case No. 04-47504. But see id., GIE La Réunion Aérienne v. La Jamahiriya Arabe Libyenne, Judgment of 9 March 2011, Bulletin Civil I, No. 49. 89 Marcin Kaldunski, State Immunity and War Crimes: The Polish Supreme Court on the Natoniewski Case, Polish Yearbook of International Law 30 (2010), 235, 247.

High Court of New Zealand, Fang and Others v. Jiang and Others, Judgment of 21 December 2006, reprinted in: ILDC 1226 (2006). The case concerned former State officials rather than the State itself, but was decided on the basis of the law of State immunity. 90

91 FCC, Distomo Case, Decision of 15 February 2006, 2 BvR 1476/03, reprinted in: ILDC 390 (2006), para. 18.

Slovenian Constitutional Court, A A v. Germany, Judgment of 8 March 2001, reprinted in: ILDC 406 (2001). 92

93 Court of Appeal of New South Wales, Zhang v. Zemin, Judgment of 5 October 2010, [2010] NSWCA 255. The case concerned former State officials rather than the State itself, but was decided on the basis of the law of State immunity. 94

Ibid., para. 121.

95

Ibid., paras. 128–134.

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nity statutes of Israel96 and Japan97 do not foresee in a jus cogens exception, and most pertinently, that such exception is absent from the 2004 UN Convention. The picture that transpires from the travaux préparatoires of the Convention is far from blurry; States consciously omitted to include a human rights exception.98 In the period since 2001 there are only two instances of State practice from which cautious support for a human rights exception to State immunity can be derived. One is a mystifying observation in a 2011 judgment of the French Court of Cassation.99 The case concerned a claim against Libya instigated by the relatives of the victims of the terrorist bombing of a flight of a French airline on 19 September 1989 above Niger. While Libya’s direct involvement in the terrorist attack has never been established, the claimants argued that the State carried a ‘moral responsibility’ for the committed crimes. In response to Libya’s immunity claim they argued that the grant of immunity would violate their right of access to court under Article 6 of the ECHR. The Court of Cassation cited the case law of the ECtHR in approval, but added: à supposer que l’interdiction des actes de terrorisme puisse être mise au rang de norme de jus cogens du droit international, laquelle prime les autres règles du droit international et peut constituer une restriction légitime à l’immunité de juridiction, une telle restriction serait en l’espèce disproportionnée au regard du but poursuivi dès lors que la mise en cause de l’Etat étranger n’est pas fondée sur la commission des actes de terrorisme mais sur sa responsabilité morale.100

It is unclear what exactly the Court of Cassation wanted to say. According to the ICJ the judgment was not relevant since the French Court of Cassation had “stated only that, even if a jus cogens norm could constitute a legitimate restriction on State immunity, such a restriction could not be justified on the facts of that case.”101 In view of the adamant refusal to accept the exception in earlier case law102 this reading of the 96

See supra, note 24.

97

Ibid.

See ILC, Report of the Working Group on Jurisdictional Immunities of States and their Property, UN Doc. A/CN.4/L.576 (1999), para. 9; id., Report of the Working Group on Jurisdictional Immunities of States and their Property, A/CN.4/L.576 (1999) , Appendix, para. 13; Convention on Jurisdictional Immunities of States and their Property, UN Doc. A/C.6/54/L.12 (1999), para. 47. 98

99

Court of Cassation, GIE La Réunion Aérienne (note 88).

100

Ibid.

101

ICJ, Jurisdictional Immunities of the State (note 1), para. 96.

102

See supra, note 88.

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phrase probably captures the intention of the French court, however, the caveat (à supposer que) appears to regard the qualification of the prohibition of acts of terrorism as jus cogens, not the consequence of that qualification, thus it is difficult not to read the passage as expressing support (unwittingly perhaps) for the jus cogens argument against State immunity.103 The other relevant instance of State practice materialised just weeks after the ICJ’s judgment in Jurisdictional Immunities of the State was issued. In March 2012 Canada amended its State Immunity Act104 to include a State sponsor of terrorism exception akin to the US one.105 Since unlike the US, Canada does not dispute the international legal underpinnings of the rule of State immunity, the Canadian exception bears more weight in the context of custom formation. However, the exception does not apply to all States, and only extends to law suits relating to terrorist acts committed on or after 1 January 1985. In that sense, the exception may be seen to reflect opinio juris in respect of the legitimacy of limiting State immunity as a countermeasure, rather than in respect of the scope of the rule as such.106 In sum, while scholarly opinion on the existence of a human rights exception to State immunity is more or less equally split,107 close scrutiny of State practice reveals 103 See also ICJ, Jurisdictional Immunities of the State, Dissenting Opinion Gaja (note 42), para. 11; Philippa Webb, Agora 1: International Law Making, Regional Challenges to the Law of State Immunity, 5, available at: http://www.uv.es/esil2012/pdf/Webb.pdf (accessed on 18 December 2012). 104

Supra note 24.

Canada, Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, 13 March 2012, available at: http://parl.gc.ca/HousePublications/Publication.aspx? Language=E&Mode=1&DocId=5465759&File=29#1 (accessed on 18 December 2012). On 7 September 2012 Canada announced that it listed Iran and Syria as ‘[S]tates that sponsor terrorism’, available at: http://www.international.gc.ca/media/aff/news-communiques/2012/09/07c.aspx?lang= eng&view=d (accessed on 18 December 2012). 105

106 See on the issue of countermeasures in this context Juliane Kokott, Mißbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstößen, in: Ulrich Beyerlin (ed.), Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt (1995), 135, 148–149; Gattini (note 7), 183.

Doctrine on this issue is profuse, only a few examples will be mentioned here. For support on a human rights exception see Lorna MacGregor, State Immunity and Jus Cogens, ICLQ 55 (2006), 437; Orakhelashvili (notes 54 and 63); Bianchi, Denying State Immunity to Violators of Human Rights (note 63), 195; Riccardo Pavoni, Human Rights and the Immunities of Foreign States, in: Erika de Wet/Jure Vidmar (ed.), Hierarchy in International Law, The Place of Human Rights (2012), 71. For criticism on the human rights exception see Giegerich (note 65); Tomuschat (note 9); Fox (note 65); Gattini (note 7); Roger O’Keefe, State Immunity and Human Rights: Heads and Walls, Hearts and Minds, VJTL 44 (2011), 999. 107

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the isolated and unilateralist position of the Italian courts. It should moreover be pointed out that their practice may not even constitute unequivocal State practice, with the position of the judiciary not being shared by the executive.108 Against this backdrop it can only be concluded that all evidence militates against a human rights exception to State immunity and the ICJ’s reliance on the absence of State practice authoritatively disposed of the first strand of Italy’s second argument.109

D. The Role of the Judiciary in Resolving Conflicts Between (Allegedly) Competing Norms

1. Systemic Integration The two-tier-theory of custom formation cannot, however, be relied on to dispose the argument that State immunity can be restricted whenever its application clashes with other rules of international law. Through the reliance on the ‘right of access to court’, or the ‘right to a remedy’, Italy asked the ICJ to establish the relationship between competing rules or principles of international law. It is submitted here that the ICJ’s exclusive reliance on the absence of supporting State practice to dismiss the Italian argument is highly unfortunate. Just like “any relevant rules of international law applicable in the relations between the parties” needs to be taken into account

108

See supra, note 7.

It has been argued that even if Germany were to be entitled to immunity international law, the Italian courts were fulfilling “a ‘legitimate’ function in pushing for a new interpretation of international law based on [their] role as a law creator rather than enforcer” (see Andrea Roberts, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, ICLQ 60 (2011), 57, 70, and in similar terms Pavoni (note 7), 75). In fact, the Italian Court of Cassation repeatedly underlined that it was aware that it was contributing to the ‘emergence’ of a new rule of customary international law (see e.g., Court of Cassation, Mantelli (note 5), para. 11; although it blurred its reasoning by adding that that rule was already part of the system of the international legal order) and in the proceedings before the ICJ Italy likewise “acknowledge[d] that in this area the law of State immunity is undergoing a process of change, it also recognize[d] that it is not clear at this stage whether this process will result in a new general exception to immunity namely a rule denying immunity with respect to every claim for compensation arising out [of] international crimes” (ICJ, Jurisdictional Immunities of the State (note 1), para. 86). It falls outside the scope of this commentary to discuss this position, but see Rosanne van Alebeek, Domestic Courts as Agents of Development of International Immunity Rules, LJIL 26 (2013) (forthcoming). 109

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when interpreting a treaty provision,110 an exercise of systemic integration may be necessary when interpreting customary rules.111 In this sense, Lowe pertinently observed that increasingly ‘primary’ norms of international law compete for application to a particular set of facts, and judges will be asked to “determin[e] the relationship between the legal norms that are potentially applicable.”112 To draw a parallel, the House of Lords in Pinochet No. 3 fully engaged the argument that the rule of functional immunity was incompatible with the obligation to prosecute torture under the Convention against Torture (CAT),113 it did not stop its analysis in the absence of State practice.114 In Jones v. Saudi Arabia, Lord Hoffmann criticised the Italian courts arguing that ‘the basic technique of adjudication’ of “ordering of competing principles according to the importance of the values which they embody […] cannot be adopted in international law, which is based upon the common consent of nations.”115 While this observation has admittedly a potentially sweeping scope, it is argued here that the Law Lord could not have meant to reduce the judicial function in the international legal order to a mere mechanical identification and counting of State practice. In fact, in the Jones Case the alleged violation of Article 6 of the ECHR was not dismissed under reference to absence of State practice but relied on the ordering of interna110 Art. 31 (3)(c) of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331. See Campbell MacLachlan, The Principle of Systemic Integration and Article 31 (3)(c) of the Vienna Convention, ICLQ 54 (2005), 279. 111 See ILC, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, 13 April 2006, UN Doc. A/CN.4/L.682 (2006), paras. 36 et seq.; Jean d’Aspremont, The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order, in: André Nollkaemper/Ole K. Fauchald (eds.), The Practice of International and National Courts and the (De-)Fragmentation of International Law (2012), 141. 112 Vaughan Lowe, The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?, in: Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (2000), 207, 214. 113 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT), 10 December 1984, UNTS 1465, 85. 114 House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (Pinochet No. 3), Judgment of 24 March 1999, [1999] UKHL 17. 115

House of Lords, Jones (note 86), para. 63 (per Lord Hoffmann).

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tional legal rules as advanced by the ECtHR.116 In the Al-Adsani,117 McElhinney118 and Fogarty119 Cases that Court in fact did recognise that the relationship between the right of access to court120 and the law of State immunity cannot be established through a perusal of State practice. Instead, it ruled that the boundary between the two rules was determined by the law of State immunity; the public international law rule of State immunity was seen as an inherent limit to the right of access to court.121 Notably, only Judge Rozakis dissented from this approach, which has since been consistently followed by the Strasbourg court. While the particular balance struck can very well be criticised, as will be further explained below,122 the fact that the ECtHR acknowledges the need for systematic integration is notable. Also Lord Hoffmann’s own reasoning in Pinochet No. 1 revealed a clear willingness to systemic integration of alleged competing principles of international law.123 In fact, ‘the ordering of competing principles’ goes to the core of the international judicial function. Or, as the ILC Fragmentation Report put it, “[a]lthough there may be disagreement among lawyers about just how the systemic relationship between the various decisions, rules and principles should be conceived, there is seldom disagreement that it is one of the tasks of legal reasoning to establish it.”124 The question of the relationship between competing rules of international law is of course part of the

116

Ibid., paras. 40–41.

117

ECtHR, Al-Adsani (note 3).

118

Id., McElhinney (note 71).

Id., Fogarty v. Ireland, Judgment of 21 November 2001, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 20 February 2013). 119

120 Art. 6 of the ECHR has been interpreted to guarantee the right of access to court, see id., Golder v. United Kingdom, Judgment of 21 February 1975, Series A, No. 18, paras. 28–36.

Id., Al-Adsani (note 3), paras. 55 et seq.; id., McElhinney (note 71), paras. 36 et seq.; id., Fogarty (note 119), paras. 35 et seq. 121

122

See infra, text with notes 161 et seq.

House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (Amnesty International and others intervening) (Pinochet No. 1), [1998] 4 All ER 897. The judgment was set aside by a House of Lords Committee on 17 December 1998 because the Appellate Committee had been improperly constituted, House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (Pinochet No. 2), [1999] 1 All ER 577. 123

124

ILC, Fragmentation Report (note 111), para. 33.

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larger ‘fragmentation debate’,125 and the clash between ‘system’ and ‘pluralist’ approaches to the international legal order.126 While definite answers as to how the relationship between competing rules must be established are lacking, the submission that the ICJ should have at least engaged the preliminary question of whether competing sets of rules are in fact applicable to the case at hand seems not too controversial.

2. Parameters of the Systemic Integration Argument While the space is here lacking to develop a full-fledged theory as a cogent alternative to the ICJ reasoning, it will be attempted to sketch the basic parameters for authoritative legal reasoning on this point. It is submitted that several questions need explicit addressing in any cogent legal argument relying on the right of access to court or the right to a remedy. First, the scope of the notion ‘competition of rules’ must be ascertained: are only obligations of the forum State, or also obligations of the impleaded State relevant? If only the obligations of the forum State clash with the State immunity rule, the question whether the right of access to court applies to the facts at hand arises; and if also the obligations of the impleaded State are to be taken into account, the question as to the scope of the right to a remedy presents itself. Next, in the context of the case at hand, the question as to the effect of the 1947 Peace Treaty and the 1961 Agreements on alleged individual rights cannot be ignored. These are hard questions, and it may therefore not surprise that the ICJ evaded them, but they are the pillars upon which the assessment of the relationship between the rule of State immunity and the rights of the victims necessarily rests. It is only after the competition of legal rules is thus established that the question of the relationship between these rules and the question of the principles guiding the assessment of that relationship need addressing.

125

Ibid.

See Ralf Michales/Joost Pauwelyn, Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of International Law, in: Tomer Broude/Yuval Shany (eds.), Multi-Sourced Equivalent Norms in International Law (2011), 19. 126

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a) Which International Law Rules Are to Be Taken into Account? The first question – the relevance of the distinction between obligations of the forum State and obligations of the impleaded State – is fundamental, but steadily disregarded. The question in essence turns on the scope of the principle of systemic interpretation. Three distinct positions are discussed here so as to prove this point. The first position is that a national court is only confronted with competing rules of international law when these rules impose competing obligations on the State of the forum. As the ECtHR aptly noted in Al-Adsani, the right to a remedy enshrined in Article 13 of the ECHR does not impose obligations on the forum State when the human rights violation complained of was solely attributable to the impleaded State and the grant of immunity hence raises no issue under that article.127 The contrary position of the Committee against Torture as to the scope of Article 14 of the CAT128 has been forcefully criticised in doctrine,129 and rejected by national courts.130 Notably, the ICJ did in fact take position on this issue in the judgment. In the context of the hierarchy of norms argument, the ICJ noted that [t]he duty to make reparation is a rule which exists independently of those rules which concern the means by which it is to be effected. The law of State immunity concerns only the latter; a decision that a foreign State is immune no more conflicts with the duty to make reparation than it does with the rule prohibiting the original wrongful act.131

A second position is however advanced in doctrine. Commentators at times rely on the right to a remedy, rather than on the right of access to court when they argue in favour of a human rights exception to State immunity, sliding from the obligations

127

ECtHR, Al-Adsani (note 3), para. 40.

CAT (note 113). UN Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations, Canada, 7 July 2005, UN Doc. CAT/C/CR/34/CAN, paras. 4 (g), 5 (f), available at: http://www.unhcr.org/ refworld/docid/43f2fe460.html (accessed on 18 December 2012). 128

See e.g., Kate Parlett, Universal Civil Jurisdiction for Torture, European Human Rights Law Review 4 (2007), 385, 398; Manfred Nowak/Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (2008),494; Rensmann (note 57), 165. 129

130

Most prominently by the House of Lords, in Jones (note 86), paras. 17, 56 et seq.

131

ICJ, Jurisdictional Immunities of the State (note 1), para. 94.

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of the forum State to those of the impleaded State.132 As seen earlier, both concurring Judge Bennouna and dissenting Judge Yusuf focused on the conflicting obligations of Germany. A third distinct position was advanced by the Italian Supreme Court. The fact that Italian courts have tended to rely on multiple, sometimes incompatible argumentative strategies resulting in oracular reasoning difficult to dissect in legal analysis and their argumentation has moreover developed over the years makes it difficult to capture the thrust of their argumentation in a few lines. While it has been argued that the Court of Cassation, in the seminal Ferrini judgment, engaged in ‘systematic interpretation’ of the rule of State immunity,133 the judgment to a large extent seems to rely on the straightforward trumping power of jus cogens norms.134 The Court of Cassation did not rely on the right of access to court or the right to a remedy, but proceeded to reason in terms of a different clash, namely that between State immunity and the substantive fundamental values of the international legal order, arguing that the rule of State immunity had to be interpreted in a way so as to ‘protect’ rather than ‘obstruct’ these values.135 The three positions can be seen to represent three different takes on the question as to what extent the international legal order is an internally coherent legal system. Arguably, the difference between the three approaches pivots on the underlying conception of the role of State consent in the development of obligations under international law. The exercise of ordering international obligations that compete in shaping the conduct of the forum State can be undertaken within the strictures of the classical voluntarist approach to international law. A case in point is the dissenting 132 See e.g., Paola Gaeta, Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?, in: Antonio Cassese (ed.), Realizing Utopia, The Future of International Law (2012), 227, 227. 133 Pasquale De Sena/Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, EJIL 16 (2005), 89. See indeed Court of Cassation, Ferrini (note 5) para. 9.2; id., Mantelli (note 5), para. 11, the Court of Cassation itself referred to the ‘systemic’ aspect of its interpretation method. 134 Court of Cassation, Ferrini (note 5), para. 9.1, See in this sense also the Court of Cassation itself in Autonomous Prefecture of Vojotia (note 5), paras. 29, 30 and 42.

Court of Cassation, Ferrini (note 5), para. 9.1. By and large this reasoning was repeated in Court of Cassation, Mantelli (note 5), and id., Lozano v. Italy, Appeal judgment of 24 July 2008, Case No. 31171, ILDC 1085 (IT 2008). See for yet novel lines of argumentation, not brought before the ICJ, Court of Cassation, Autonomous Prefecture of Vojotia (note 5). 135

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opinion of Judge Tanaka in the South West Africa Cases.136 Tanaka contrasted a ‘formalistic’ with a ‘teleological or sociological and conceptual’ interpretation of international law, underlining that the latter approach was not to ‘deduce’ rules from ‘mere necessity or desirability’, but from “the raison d’être and the theoretical construction” of the framework of rules applicable to the case. The rule thus ‘deduced’ reflected “the reasonably assumed intention of the parties.”137 In other words, a State that undertakes competing obligations must – at the level of theory in any case – have an intention as to the relation between these obligations, and when that intention is not immediately clear, judges must construe the intention through interpretation. For example, it can reasonably be assumed that the inclusion in the CAT of the obligation to prosecute torture on the basis of universal jurisdiction138 means that States agree that functional immunity is not available in respect of that crime since “no rational system of criminal justice can allow an immunity which is co-extensive with the offence.”139 In this sense, the reliance on the concept of jus cogens as an ordering principle in the context of the Arrest Warrant Case is not a priori unpersuasive. The obligation to prosecute competes with both the functional and the personal immunity rule. In view of the limited availability of personal immunity rules, the systemic integration path taken in Pinochet No. 3 was unavailable, but the argument that when two ordinary norms of international law clash, prevalence should be given to the norm that strengthens jus cogens norms, may actually persuade. Systemic integration arguments that move beyond competing obligations, relying on a clash of rules of international law regardless of the addressee, or even relying on a clash of values underlying these rules are arguably tainted with the vices of natural law theory. They do not proceed from the reasonably assumed intentions of States, but from an assumed level of unity and coherence of the international legal order. ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, Dissenting Opinion Judge Tanaka, ICJ Reports 1966, 250, 277 et seq. 136

137 While the Court did not follow Judge Tanaka at the time, it can be argued that the decision in the Barcelona Traction Case sanctioned Judge Tanaka’s reasoning, see ICJ, The Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase), 5 February 1970, ICJ Reports 1970, 3, 32. 138

Art. 7 (1) of the CAT (note 113).

House of Lords, Pinochet No. 3 (note 114), 178 et seq. (per Lord Millett). In accordance with Art. 1 of the CAT (note 114), torture is by definition committed by a “public official or other person acting in an official capacity”. 139

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While this issue needs further elaboration, and this author does not purport to discard the arguments from the second and third category altogether, it is argued here that for now, only arguments from the first category are fully within accepted judicial discourse. In this sense, Lord Hoffmann’s sneer at the Ferrini court could be interpreted benignly. Arguably, the Law Lord merely meant to argue that the interpretation of international law must ultimately be guided by the search for State consent.140

b) Is there a Right of Access to Court? If systemic integration is limited to the ordering of competing obligations the next question is of course whether there are such competing obligations in the case at hand. The applicability of human rights obligations of the forum State – most pertinently the obligation to grant access to its courts – in case of the grant of State immunity is not undisputed. In respect of the obligations under the ECHR it has for example been argued that “a jurisdictional limitation imposed as a matter of general international law would seem to entail that the area covered by that limitation does not lie ‘within the jurisdiction’ of the State party concerned” in the sense of Article 1 of the ECHR.141 The argument does not immediately convince, since the Convention applies ratione loci whenever an individual seeks access to a court that falls within the jurisdiction of a contracting State.142 An alternative line of reasoning focuses on the applicability of Article 6 and hence the ratione materiae applicability of the Convention. If one conceives of State immunity as a rule concerning the delimitation of the judicial competence of States – a position most prominently advanced by Brownlie143 – the 140 See Giegerich (note 65), 217: “[t]he result of […] argumentative operations must not go beyond the limits of State consensus”.

Emmanuel Voyakis, Access to Court v. State Immunity, ICLQ 52 (2003), 297, 309; Mizushima Tomonori, Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means, Modern Law Review 71 (2008), 734, 736. The argument recalls the reasoning of the European Commission of Human Rights (ECommHR) in ECommHR, Spaans v. The Netherlands, Decision of 12 December 1988, European Commission of Human Rights Decisions and Reports (D.R.) No. 58, 119. 141

142 See Rosanne van Alebeek, The Immunity of States and their Officials in International Criminal Law and International Human Rights Law (2008), 375–377, 393 et seq., for a critical discussion of the argument.

Ian Brownlie, Contemporary Problems Concerning the Jurisdictional Immunity of States, Preliminary Report, Annuaire de l’Institut de Droit International (AIDI) 62-I (1987), 13; id., Contemporary Problems Concerning the Jurisdictional Immunity of States, Definitive Report and Draft Set of Resolutions, 45, 46; id., Contemporary Problems Concerning the Jurisdictional Immunity of States, 143

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determination of legal responsibility of a State for its sovereign acts is outside the judicial competence of other States and the application of the law of State immunity would not – contrary to for example the immunity of international organisations and diplomatic immunity – raise an issue under the right of access to court to begin with.144 In view of these hurdles – the alleged irrelevance of the obligations of the impleaded State, and the inapplicability of the right of access to court to complaints over the law of State immunity – a convincing primary line of reasoning could be that the Italian last resort argument fails to convince since the rules of international law relied on do not clash. Since the prevailing opinion is however that State immunity makes an inroad in otherwise existing jurisdiction,145 it will nevertheless prove instructive to have regard to the other identified pillars of a successful reliance on the right of access to court or right to a remedy.

c) Is there a Right to a Remedy? As said, the reliance on the right to a remedy in the dispute at hand requires proof of the existence of an individual right to a remedy in international humanitarian law. However, most commentators agree that the primary obligations under IHL are not owed towards individuals,146 and more importantly that individuals are not recognised as secondary right holders.147 This is also the prevailing opinion in most naSupplementary Report, AIDI 63-I (1989), 13; id., Contemporary Problems Concerning the Jurisdictional Immunity of States, Memorandum, AIDI 64-I (1991), 80. See also Michel Cosnard, La Sou-mission des États aux Tribunaux Internes: Face à la Théorie des Immunités des États (1996), 376–389; van Alebeek (note 142), 65–88. van Alebeek, (note142), 393 et seq. This argument is distinct from the argument that all immunities under international law limit the jurisdiction of the State and hence the applicability of Art. 6 of the ECHR as advanced by Lord Millett in House of Lords, Holland v. Lampen-Wolfe, [2000] 3 All ER 808, 846–847 (per Lord Millett); id., Matthews v. Ministry of Defence, [2003] 1 AC 1163, para. 104. See also id., Jones (note 86), para. 14 (per Lord Bingham of Cornill) and para. 64 (per Lord Hoffmann). 144

145

See on this Fox (note 65), 74 et seq.

See e.g., Albrecht Randelzhofer, The Legal Position of the Individual under Present International Law, in: Albrecht Randelzhofer/Christian Tomuschat (eds.), State Responsibility and the Individual (1999), 231, 241. 146

Eyal Benvenisti, Individual Remedies for Victims of Armed Conflicts in the Context of Mass Claims Settlements, in: Holger P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity: 147

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tional courts,148 and in the ECtHR.149 The ICJ took pains to refrain from deciding the question whether there exists an individual right to claim compensation for violations of the law of armed conflict.150 But interestingly, while the ICJ also set out to exclude the broader question whether despite the 1947 Peace Treaty and the 1961 Agreements, Germany still had responsibility towards Italy or towards individual Italians from its judgment,151 it did lift small tips of the veil as to what its position on these two issues might be. The ICJ observed that against the background of a century of practice in which almost every peace treaty or postwar settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.152

Liber Amicorum Rüdiger Wolfrum (2012), 1085, 1086; Natalino Ronzitti, Access to Justice and Compensation for Violations of the Law of War, in: Francesco Francioni (ed.), Access to Justice as a Human Right (2007), 95; Gattini (note 7), 193 et seq.; Rudolf Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim’s Private Right of Action? Lessons after 1945, Berkeley Journal of International Law 20 (2002), 296; Christian Tomuschat, Reparation for Victims of Grave Human Rights Violations, Tulane Journal of International and Comparative Law 10 (2002), 157. These authors do acknowledge the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res. 60/147 of 16 December 2005, but consider them to exceed the scope of the lex lata in this respect. See differently Frits Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, From Art. 3 of the Hague Convention IV of 1907 to Art. 91 of Additional Protocol I of 1977 and Beyond, ICLQ 40 (1991), 827, 832 et seq. 148

See for references Benvenisti (note 147), 1093 et seq.

ECtHR, Associazione nazionale Reduci dalla Prigionia dall Internamento e dalla Guerra di Liberazione and 275 Others v. Germany, Decision of 4 September 2007, available via: http://www.echr. coe.int/ECHR/EN/hudoc (accessed on 20 February 2013); ECtHR, Markovic and Others v. Italy, Judgment of 14 December 2006, RJD 2006-XIV, 235, para. 109. 149

150 ICJ, Jurisdictional Immunities of the State (note 1), para. 108. Some of the concurring judges outright rejected the existence of an individual right to reparation for violation of international humanitarian law. Id., Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Separate Opinion of Judge Keith, paras. 18 et seq., available at: http://www.icjcij.org/docket/files/143/16887.pdf (accessed on 20 February 2013); id., Jurisdictional Immunity of the State (Germany v. Italy, Greece intervening), Judgment of 3 February 2012, Separate Opinion of Judge Koroma, para. 9, available at: http://www.icj-cij.org/docket/files/143/16885.pdf (accessed on 18 December 2012). 151

Id., Jurisdictional Immunities of the State (note 1), para. 108.

152

Ibid., para. 94.

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It furthermore noted that [w]here the State receiving funds as part of what was intended as a comprehensive settlement in the aftermath of an armed conflict has elected to use those funds to rebuild its national economy and infrastructure, rather than distributing them to individual victims amongst its nationals, it is difficult to see why the fact that those individuals had not received a share in the money should be a reason for entitling them to claim against the State that had transferred money to their State of nationality.153

Arguably departing from its much-criticised position that lump-sum settlement are not sources of law,154 the apparent approval of the practice of lump sum settlement of claims makes clear that if there were an individual right to a remedy to begin with, it can be disposed of through inter-State agreements. This brings us to the following pillar of the ‘last resort’ argument: the effect of the 1947 Peace Treaty and the 1961 Agreements on alleged individual rights. The ICJ implicitly took the position that these inter-State agreements extinguished any individual right to a remedy that Italian victims might have had. Notably, the ICJ did however not seem of the opinion that the finality and exclusivity of lump sum agreements, which receives wide support in scholarly doctrine,155 equally applies in the interState relationship between Germany and Italy. It expressed its ‘regret’ over the exclusion of the IMIs from the German compensation schemed,156 and suggested that Italy and Germany enter into “further negotiation […] with a view to resolving the issue.”157 d) What is the Proper Relationship Between these (Possibly) Conflicting Norms? Only if all identified hurdles were to be overcome, the question of the resolution of conflicting norms comes to the fore. It is here that we, within the strictures of coher153

Ibid., para. 102.

See on this Richard B. Lillich/Burns H. Weston, Lump Sum Agreements: Their Continuing Contribution to the Law of International Claims, AJIL 82 (1988), 69, 71; Rudolf Dolzer, New Foundations of the Law of Expropriation of Alien Property, AJIL 75 (1981), 553, 559 et seq. 154

Benvenisti (note 147), 1096; Hans van Houtte/Hans Das/Bart Delmartino/Iasson Yi, Post War Restoration of Property Rights Under International Law, vol. I: Institutional Features and Substantive Law (2008), 125. See US Supreme Court, Ware v. Hylton, 3 U.S. 199 (1796). 155

156

ICJ, Jurisdictional Immunities of the State (note 1), para. 99.

157

Ibid., para. 104.

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ent legal reasoning, enter the realm of relative indeterminacy and policy options. The ‘Strasbourg approach’ to systemic integration – the right to State immunity under international law of the impleaded State always prevails over the fundamental rights of individuals158 – and the ‘Italian approach’ to systemic integration – the fundamental rights of individuals prevail over the right to State immunity of the impleaded State – represent the two extremes of a broad array of possible solutions. As explained above, it is submitted here that the Italian courts stretch the limits of the judicial function too far.159 However, also the Strasbourg approach fails to convince. It is recalled that the ECtHR supports the resolution of the conflict between the right of access to court and State immunity by strikingly little reasoning. The principle underlying the decision seems to be the presumed overall compatibility of general international law with convention standards.160 This is too categorical, and not sufficiently explanatory of the reasons underlying the established order between the competing rules. Various more convincing reasons for the prevalence of State immunity have been furnished in doctrine.161 In the specific context of post-war conflict resolution, many commentators have for example argued that reparation measures at the inter-State level are to be preferred,162 even from the perspective of the victim.163 Even apart from the question of whether an individual right to reparation exists or not, it is often argued that private law suits and national court proceedings are illsuited to deal with the type of mass claims following an international armed conflict. Also, after an inter-State agreement has been reached, the principle of finality of

158 The ECtHR line of jurisprudence has been followed by national courts. See Brussels Court of Appeal, Iraq v. Vinci Constructions Grands Projets SA, Appeal judgment of 4 October 2002, reprinted in: ILDC 49 (2002); House of Lords, Jones (note 86); Court of Cassation, GIE La Réunion Aérienne (note 88). 159

See supra, text with notes 133 et seq.

See more in general Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (2010). 160

161

See e.g., O’Keefe (note 107), 1039 et seq.

162

See e.g., Tomuschat (note 9), 1120 et seq.; Gattini (note 7), 194 et seq.; Benvenisti (note 147), 1088.

Benvenisti (note 147), 1088. In the context of comparing diplomatic protection to international human rights adjudication ILC Rapporteur John Dugard noted that diplomatic protection ‘potentially offers a more effective remedy’ than the various international and regional human rights monitoring bodies, ILC, First report on Diplomatic Protection, 7 March 2000, UN Doc. A/CN.4/506 (2000), para. 31, see also ECtHR, Demopoulos and Others v. Turkey, Decision of 1 March 2010, RJD 2010, paras. 83–85, 116. 163

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peace treaties militates at the level of policy arguments against the entertaining of individual claims by national courts. On the other hand if there is a real clash between the right of access to court and immunity rules there are also sound policy arguments in favour of the prevalence of the right of access to court. It is in this respect notable that even Fox has expressed cautious support for the argument that the grant of State immunity could be made “conditional, after reasonable lapse of time” on provision by the impleaded State of “a proper opportunity for adjudication of the conflicting obligation.”164 The current schism between the ECtHR jurisprudence on State (and diplomatic) immunity and that on the immunity of international organisations165 is not entirely persuasive.166 While indeed, a foreign State will in general provide an alternative remedy in its own legal system,167 there may always be exceptions to this rule. Transposition of the ‘reasonable alternative means doctrine’ to at least diplomatic immunity, and State immunity where the foreign State has been allowed to perform sovereign activity in the forum State seems called for. And if one is of the opinion, as the ECtHR, that the grant of State immunity ipso facto raises an issue under the right of access to court, the doctrine deserves even wider application. None of this is to say that the Italian courts were right. Even if in the abstract the right of access to court were infringed by the grant of State immunity, the IMIs did have an opportunity to have their case heard in the German courts;168 the right of access to court does not guarantee the existence of substantive rights,169 and certainly no positive judicial finding. Hazel Fox, State Immunity and other Norms of International Law: Possible Methods of Accommodation, in: Johan Erauw/Vesna Tomljenović/Paul Volken (eds.), Liber Memorialis Petar Šarčević, Universalism, Tradition and the Individual (2006), 545, 563. 164

165 See ECtHR, Waite and Kennedy v. Germany, Judgment of 18 February 1999,RJD 1999-I, 393, para. 68: “a material factor in determining whether granting [an international organization] immunity from […] jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention”.

See Tomonori (note 141), 734. In the context of the dispute between Germany and Italy, see Pavoni (note 107), 91 et seq. 166

167 See in this sense August Reinisch/Ulf A. Weber, In the Shadow of Waite and Kennedy, The Jurisdictional Immunity of International Organisations, The Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement, International Organisations Law Review 1 (2004), 59, 85 et seq. 168

See FCC, Italian Military Internees Case (note 12).

169

See e.g., ECtHR, H. v. Belgium, Judgment of 30 November 1987, Series A, No. 127-B, para. 40.

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3. Right Outcome – Wrong Terms While this author agrees with the outcome of the judicial deliberations in this case, it is argued that the ICJ, by diligently perusing State practice rather than engaging the last resort argument on the merits, has oversimplified the doctrine of sources of international law, has underplayed the role of the judiciary in international law, and has missed an important opportunity to clarify the relationship between arguably competing rules and principles of international law. It has therewith, unnecessarily, subjected itself to the much-heard criticism of being a State-centred court with an overly formalistic outlook on international law.

IV. Germany v. Italy: The Aftermath No doubt the judgment of the ICJ will have wide repercussions. First, of course, for the parties inter se. Italy was ordered to make reparation for the violations of international law it was found to have committed. In the dispositif of the judgment we read that Italy must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which the Federal Republic of Germany enjoys under international law cease to have effect.170

On 30 May 2012 the Italian Court of Cassation bowed down – somewhat grudgingly – to the World Court’s ruling, ensuring the immunity of Germany in comparable cases in the future;171 and it is to be expected that the annulment of the vexed string of judgments issued between 2004 and 2011 will follow shortly. It is further recalled that in the course of its reasoning, outside the context of strict obligations imposed by the dispositif, the ICJ expressed its ‘regret’ over the exclusion of the unfortunate IMIs from the German Compensation schemes and suggested Germany and Italy take up the claims of the IMIs together with other claims of Italian nationals which have allegedly not been

170

ICJ, Jurisdictional Immunities of the State (note 1), para. 139, sub. 4.

Court of Cassation, Criminal Proceedings against Albers and Others, Decision of 30 May 2012 (reasons given on 9 August 2012), Case No. 32139: case on file with author. 171

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settled in further inter-State negotiations.172 It is not known to this author if this suggestion has been taken up by the parties, and the effect of the judgment in this respect hence remains to be seen. The obiter suggestion may have its first effects outside the realm of the immediate parties to the case since it was reported in September 2012 that Greece is preparing a WWII-related compensation claim against Germany.173 While of course only Germany and Italy are bound by the Judgment,174 the ICJ’s ruling will reverberate throughout the globe. This is not only true for the immediate issue of a human rights exception to State immunity, but for several more peripheral issues as well. It was for example noted above that the ICJ’s evasive reasoning in regards to the issue of lump sum settlements175 could nevertheless be interpreted as positiontaking in the controversy on this issue, and the same is true for the brief allusion to the functional immunity of State officials. The ICJ distinguished the question of the immunity of “the immunity of the State itself” from “the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.”176 In this framing of the relevant distinction, the omission of the category of civil proceedings against foreign State officials is glaring. The omission implies support for the position that civil proceedings against foreign State officials accused of international crimes are the equivalent of proceedings against the State itself, and the ICJ herewith implicitly (and perhaps inadvertently) discredited the oft-heard argument that international crimes do not qualify as official acts for functional immunity purposes,177 as well as all other arguments that allow for 172

See supra, text with notes 157 and 158.

Niki Kitsantonis, Greece Names Nazi Reparations Panel, 11 September 2012, available at: http://www.nytimes.com/2012/09/12/world/europe/greece-names-nazi-reparations-panel.html (accessed on 18 December 2012). 173

174

Art. 59 of the Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355.

175

See supra, text with notes 153 et seq.

176

ICJ, Jurisdictional Immunities of the State (note 1), para. 91.

See e.g., Supreme Court, Attorney-General of Israel v. Adolf Eichmann, Judgment of 29 May 1962, re-printed in: International Law Reports 36, 277; Court of Appeal of Amsterdam, Bouterse Case, Judgment of 20 November 2000, NJ 2001, No. 51, reprinted in: Netherlands Yearbook of International Law 32 (2001), 266, 272, para. 4.1; Federal Criminal Court, A. v. Ministère Public de la Confédération, Decision of 25 July 2012, paras. 5.3.2 et seq., available at: http://www.trial-ch.org/fileadmin/user_ upload/documents/affaires/algeria/BB.2011.140.pdf (accessed on 18 December 2012). See also Rosanne van Alebeek, National Courts, International Crimes and the Functional Immunity of State Officials, Netherlands International Law Review 59 (2012), 5. 177

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a distinction between the immunity of the State and the official in civil proceedings concerning acts attributable to the State.178 In the years to come academics, lawyers, and judges alike will no doubt set out to interpret the relevant paragraphs in ways unforeseen by the ICJ. The risk of out-of-context use of isolated sentences or paragraphs of the judgment is vindicated by a ruling of the Dutch Supreme Court issued in April 2012.179 Claimants in this case argued, under reference to the well-established Waite and Kennedy doctrine, that the UN could not successfully invoke immunity since it did not offer them ‘reasonable alternative means’ to have their claim heard.180 While the Supreme Court’s primary line of reasoning was that the immunity of the UN under the UN Charter superseded the obligations of States under the ECHR,181 it cared to cast doubt on the authority of the Strasbourg jurisprudence by observing in a sort of obiter dictum that the ICJ could “find no basis in the State practice from which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress”182 and that the difference between the immunity of States and the immunity of international organisations did not justify a different assessment of the relation between the immunity of the UN and the right of access to court than of the relation between the immunity of the State and that right.183 As far as the issue of a human rights exception to State immunity is concerned, there is little doubt that national courts will lay store by the judgment. When the ECtHR issued its Al-Adsani ruling, national courts in and outside Council of Europe States cited the case approvingly,184 and it is to be expected that the judgment of the ICJ will have an even more pronounced effect in view of the undisputed venerability of the institution, and the central position of the ICJ in the international legal order. 178 See Dapo Akande/Sangeeta Shah, Immunity of State Officials, International Crimes, and Foreign Domestic Courts, EJIL 21 (2010), 815, 852; Tomuschat (note 148), 181 et seq.

Supreme Court, Mothers of Srebrenica v. The Netherlands and the United Nations, Final appeal judgment of 12 April 2012, LJN: BW1999, ILDC 1760 (NL 2012). 179

Ibid., paras. 4.3.1 et seq. (relying on the Waite and Kennedy line of jurisprudence of the ECtHR (note 217)). 180

181

Ibid., para. 4.3.4.

182

ICJ, Jurisdictional Immunities of the State (note 1), para. 101.

183

Supreme Court, Mothers of Srebrenica (note 180), paras. 4.3.13–4.3.14.

184

See O’Keefe (note 107), 1015–1019.

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It has accordingly been predicted that a finding in favour of Germany would prove the ‘final nail in the coffin’ of the development of a human rights exception to State immunity.185 The judgment has indeed already made its way into national courtrooms. In April 2012 the Dutch Supreme Court relied on the judgment to reject the argument that the jus cogens nature of contentious acts curbed the immunity of the United Nations,186 and in August 2012, the Quebec Court of Appeal referred to the judgment as providing “a conclusive refutation of the arguments against jurisdictional immunity […] based on customary international law and on a jus cogens protection of human rights.”187 ‘Law’ and ‘conclusive’ do however generally not go well together, and one can only agree with Judge Koroma who wrote in his concurring opinion that nothing in the Court’s Judgment today prevents the continued evolution of the law on State immunity. In the past century, the law on State immunity has evolved considerably in a manner that has significantly circumscribed the circumstances in which a State is entitled to immunity. It is possible that further exceptions to State immunity will continue to develop in the future. The ICJ’s Judgment applies the law as it exists today.188

The possibility of a development of the law in this respect was intimated in the declarations attached to the instrument of ratification of three of the thirteen States that have ratified the 2004 UN Convention till date. In 2006 Norway declared that it “understands that the Convention is without prejudice to any future international development in the protection of human rights;”189 Sweden issued a similarly worded statement when it ratified three years later,190 and when Switzerland ratified in 2010 it likewise declared that it considers that Article 12 does not govern the question of pecuniary compensation for serious human rights violations which are alleged to be attributable to a State and are committed outside the State of the forum. Consequently, this Convention is without prejudice to developments in international law in this regard.191

185

Ibid., 1032.

186

Supreme Court, Mothers of Srebrenica (note 180), paras. 4.3.10–4.3.12.

187

Court of Appeal of Quebec, Islamic Republic of Iran v. Hashemi (note 87), para. 55.

188

ICJ, Jurisdictional Immunities of the State, Separate Opinion Koroma (note 151), para. 7.

189

Declaration of Norway attached to the instrument of ratification (see supra, note 29).

190

Declarations of Sweden attached to the instrument of ratification (see supra,note 29).

General interpretative declaration of Switzerland attached to the instrument of ratification deposited on 16 April 2010. 191

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The likelihood is, for now, highly theoretical though. If State immunity stands in the proceedings underlying the Jurisdictional Immunities of the State Case, where there was no dispute over the crimes committed, and no dispute over the responsibility of the impleaded State in their regard, the rule will prove even more resilient in most other transnational human rights cases that arise from controversial and highly complex factual, legal and political situations.

Jurisdictional Immunities of the State: Germany v. Italy before the ICJ from an Italian Perspective MARCO CALISTO(

ABSTRACT: This paper focuses on the contrast between the rule on State immunity and human rights norms, and on the ICJ judgment on Jurisdictional Immunity (Germany v. Italy) from an Italian point of view. In the first part of the paper, the preceding Italian national case law on the denial of State Immunity is analysed – from the notorious Ferrini decision of the Italian Court of Cassation to the final decision in the Milde case, as a result of which Germany brought the dispute before the Hague Court. In the second part of the paper the ICJ’s approach to the issue of State immunity and the arguments raised by the Italian defence are explored. It is shown that, although the outcome of the dispute was not unexpected, the Court rendered a very conservative and State-centric judgment which does not take into consideration the interests of individuals. Furthermore, it does not give any effective solution to the issue of the contrast between jurisdictional immunity and human rights norms. Finally, the paper shows the main difficulties which the implementation of the Court’s judgment may involve for the Italian legal order. KEYWORDS: Jurisdictional, Immunities, Denial, Jus Cogens, Human Rights, ICJ, Italy, Case Law

I. Introduction The relation between the rules protecting fundamental rights and the customary rule on State immunity from the jurisdiction of another State has long been the subject of heated debate in international legal commentary and case law.1 It has now (

PhD, Sapienza University of Rome, University of Messina, Italy.

Pasquale De Sena/Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, European Journal of International Law (EJIL) 16 (2005), 89; Mathias Reimann, A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany, Michigan Journal of International Law 16 (1995), 403; Jean-François Flauss, Droit des immunités et protection internationale des droits de l’homme, Revue suisse de droit international et européen 10 (2000), 299; Jennifer Gergen, Human Rights and the Foreign Sovereign Immunities Act, 1

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been approached by the recent decision of the International Court of Justice (ICJ). On one hand, traditional international law used to bind the States to abstain from exercising their own civil jurisdiction in the proceedings against a foreign State, without the foreign State’s consent.2 On the other hand the growing relevance of human rights in contemporary international law requires that gross violations of human rights do not go unpunished. For this reason, leading international commentators are debating the possibility that the occurrence of such violations constitute an exception to the general rule on immunity.3 Indeed, the main international rules on State immunity, as well as their respective national laws, provide certain exceptions to the general principle of State immunity from jurisdiction, but the exception related to the gross violations of human rights is not counted amongst these. For this reason, international commentators are speculating on the possibility of creating a human rights exception to the general rule on State immunity in the most relevant international case law.4 As a basis for this interpretation of international customary law, a special Virginia Journal of International Law 36 (1996), 765; Stacy Humes-Schulz, Limiting Sovereign Immunities in the Age of Human Rights, Harvard Human Rights Journal 9 (2008), 105; Lee Caplan, State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory, American Journal of International Law (AJIL) 97 (2003), 741. The ratio of this rule lies in the principle of the mutual independence among States, expressed by the Latin phrase par in parem non habet iudicium, as well as in the principle of separation of powers in a democratic system. See Pasquale De Sena, Diritto internazionale e immunità funzionale degli organi statali (1996). 2

Francesca De Vittor, Immunità degli Stati dalla giurisdizione e tutela dei diritti umani fondamentali, Rivista di Diritto Internazionale (RDI) 85 (2002), 573. 3

In particular, the doctrinal debate deals with the topic of the eventual contrast between the rule on State immunity and the jus cogens rules. Arguments mostly based on legal logic have been supported in favour of the notion by which State immunity cannot be pleaded when peremptory rules of international law are violated. The first argument is based on the antinomy between legal rules. In the hierarchy of international legal sources, peremptory rules are considered to be on a superior level to the other customary rules. If a contrast occurs between a peremptory rule and another customary rule, the latter should not be enforced, in favour of the former. Contrary to this argument, it has been claimed that “[t]he assertion of the automatic prevalence of jus cogens over state immunity is a non sequitur, because the two sets of rules concern two different perspectives.” See Andrea Gattini, War Crimes and State Immunity in the Ferrini Decision, Journal of International Criminal Justice 3 (2005), 224, 236. But this assertion does not make sufficient consideration the peculiarity of jus cogens: either one refuses its existence, or one acknowledges it, and if one acknowledges it, it becomes necessary to put it among the basic principles of the international legal system, to protect hierarchically more important values than the ones protected by other customary rules. Conflicts between peremptory norms cannot exist, but conflicts between peremptory and customary rules can and do exist. The second argument can be derived from the concept according to which the violation of a peremptory rule involves, for the State which makes the violation, an implicit renunciation to make use of jurisdictional immunity. However, Art. 7 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 4

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role has been played by the Italian Court of Cassation (Corte di Cassazione), the Italian court of final instance, through its decisions in the Ferrini (2004) and Milde (2008) cases, which both involved a limit to State immunity for acta iure imperii. However, the Italian denial of jurisdictional immunities to Germany has been considered by the ICJ to be a violation of the jurisdictional immunity which the Federal Republic of Germany enjoys under international law. The decision of the Hague Court is not unexpected, and, though it is extremely conservative in its reasoning, it has been welcomed by a large majority of commentators; nonetheless, it rises some problems from the perspective of part of the academic community, as well as from the Italian point of view on jurisdictional immunities and the increasing need for protection of fundamental human rights and the repression of international crimes. The aim of this paper is to explore Italian perspectives on the ICJ’s decision and on the matter of jurisdictional immunities itself. To do this, it firstly examines the most relevant international and Italian case law in order to understand and identify the beginnings which led to the controversy approached by the ICJ, as well as the positions held by Italian Courts on the issue of jurisdictional immunities and repression of international crimes. The ICJ’s decision is further examined from an Italian point of view in an attempt to underscore its eventual weakest features, and appraise whether the Court has taken into due account the Italian approach on the issue of State jurisdictional immunity. Finally, the last part of the paper attempts to outline the main difficulties which may arise in the Italian legal order as to the enforcement of the ICJ’s decision, as well as to the new paths which may be followed by the Italian

2 December 2004, GA Res. 59/38, Annex, could refute the concept because it requires the fulfillment of strict criteria before the consent to the acceptance of the foreign jurisdiction. Implicit renunciation has been refused, for example, by the United States Court of Appeals of the District of Columbia, see US District of Columbia Court of Appeals, Federal Republic of Germany v. Princz, Judgment of 1 July 1994, reprinted in: International Law Reports (ILR) 103 (1996), 604. The third argument concerns the establishment of a counter-measure against the State that committed the violation of a peremptory norm. The non-acknowledgement of jurisdictional immunity by the State in place of jurisdiction is considered as a counter-measure against the State responsible for the violation. Though this argument may be acceptable from a logical point of view, it creates several problems in civil law systems. Finally, a fourth argument is based on the principle by which the State must not recognise the consequences of the violation of a peremptory rule. For a more in-depth examination of the doctrine, see Shuichi Furuya, State Immunity: An Impediment to Compensation Litigation, Assessment of Current International Law, in: International Law Association, Compensation for Victims of War – Procedural Issues, Conference Report Toronto (2006), available via: http://www.ila-hq.org/en/committees/index.cfm/cid/ 1018 (accessed on 15 February 2013).

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courts in dealing with the customary rule of State jurisdictional immunity after the interpretation given by the Hague Court.

II. Analysis of the Italian Case Law on State Immunity Recently, individuals in several States have increasingly resorted to civil tribunals to claim compensation for damages from foreign States resulting from gross violations of human rights. Nonetheless, these claims have often been dismissed because of the customary rule of international law which provides the acknowledgment of States’ jurisdictional immunity for acta jure imperii,5 despite the relevance of human rights in contemporary international law.6 As applications before domestic courts are often the only means for the individual of effecting a claim to compensation, the limit to the right to jurisdictional protection, in case of human rights violations, is considered unacceptable by a majority of com-

5 The distinction between acta jure imperii and acta jure gestionis is no longer appropriate to provide jurisdictional protection to victims of human rights violations. An example of this assertion was given in Nelson v. Saudi Arabia. Scott Nelson, a citizen of the United States, was employed in the United States by Saudi Arabia as an electronic engineer. During the performance of his duties in a hospital in Riyadh, he discovered some irregularities in the security system, and reported this fact to an investigative committee of Saudi government. For this reason he was arrested and tortured by the agents of the government. When back to the United States, he filed a civil action against Saudi Arabia to obtain the compensation for the damage he suffered. Unlike the District Court, which declared the action inadmissible for lack of jurisdiction, the Court of Appeals enforced the ‘commercial tort exception’ (from the United States Foreign Sovereign Immunities Act of 1976, 28 USC §§ 1602 et seq.), denying Saudi Arabia’s immunity because of the close relation between the torture suffered and the employment contract with the indicted State (see United States Court of Appeals for the 11th Circuit, Nelson v. Saudi Arabia, Decision of 21 February 1991, reprinted in: ILR 88 (1992), 189). The Supreme Court considered the Court of Appeals’ position as a legal distortion as the act of torture was committed not based on commercial activity, but was rather an abuse of State power. Consequently, the torture suffered by Nelson, though deplorable, was an act made in the exercise of Saudi Arabia’s sovereign powers (actum jure imperii), so Saudi Arabia was granted immunity before the US courts. See US Supreme Court, Saudi Arabia v. Nelson, Judgment of 23 March 1993, reprinted in: AJIL 87 (1993), 442. 6 According to Morin, State jurisdictional immunity, as with that of international organisations, is not compatible with the progress of the concept of the “legally constituted State in international community.” See Jacques-Yvan Morin, L’Etat de droit: émergence d’un principe de droit international, Recueil des cours (RdC) 254 (1995), 35. The idea of a conflict between customary rules on immunity and human rights had already been displayed in previous literature, see Hersch Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, British Year Book of International Law (BYIL) 28 (1951), 220.

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mentators.7 In the effort to find a solution to the problem, many theories have been proposed in trying to uncover exceptions to the general rule on State jurisdictional immunity. These theories have sometimes been supported by conclusions reached by international and domestic case law. Italian case law in particular has contributed to the development of arguments supporting the denial of jurisdictional immunity in the occurrence of human rights violations. Those cases which have provided the largest contribution to the development of the practice of denial of State immunity for the violations of human rights or the perpetration of international crimes are analysed below. Although the main focus is on the Italian case law, the first decision analysed was brought before the European Court of Human Rights (ECtHR). The decision was included in the analysis of the relevant case law as it is of relevance for the interpretation of the later judgments.

A. Al-Adsani v. United Kingdom before the European Court of Human Rights

An important step was made by the ECtHR in Al-Adsani v. United Kingdom. Sulaiman Al-Adsani, who had dual Kuwaiti and British nationality, claimed to be the victim of abuse and torture in Kuwait, and in 1992 subsequently commenced civil action before the English courts for redress from the State of Kuwait and Sheik Jaber Al-Sabah Al-Saud Al-Sabah, a member of the government of Kuwait (and relative of the Kuwaiti Emir). However, first the High Court,8 and then the Court of Appeal,9 respectively decided that, as the acts had occurred in Kuwait, that State was immune from British jurisdiction in conformity with Article 1 of the State Immunity Act of 1978 and was refused leave to appeal to the House of Lords. As a result, Al-Adsani appealed to the ECtHR, claiming that the United Kingdom had violated his right to access to a court under Article 6 (1) of the European Convention for the Protection Reimann (note 1), 404; Michael Ross, The Changing Relationship Between State Immunity and Human Rights, in: Michele De Salvia/Mark Villiger (eds.), The Birth of European Human Rights Law – L’éclosion du Droit européen des Droits de l’Homme: Liber Amicorum Carl Aage Nørgaard (1998), 175; Flauss (note 1), 300. 7

The High Court of England and Wales, Queen’s Bench Division, Al-Adsani v. Government of Kuwait and Others, Decision of 15 March 1993, reprinted in: ILR 103 (1996), 420. 8

9 The Court of Appeal of England and Wales, Al-Adsani v. Government of Kuwait, Decision of 12 March 1996, reprinted in: ILR 107 (1998), 436. For the judgment of the ECtHR on the Al-Adsani case, see ECtHR, Al-Adsani v. United Kingdom, Judgment of 21 November 2001, RJD 2001-XI, 79.

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of Human Rights and Fundamental Freedoms (ECHR).10 Before the ECtHR, the claimant also argued that the general acknowledgment that the prohibition of torture belongs to the international jus cogens, along with the fact that torture is an international crime for which the responsible State cannot rely on functional immunity, means that there was no valid reason to affirm the existence of State jurisdictional immunity in civil proceedings. The ECtHR disagreed. In the opinion of the majority, though the prohibition of torture is a rule of jus cogens, there was not yet sufficient international acceptance that a foreign State did not have the right to plead jurisdictional immunity for civil claims of torture in the territory of a State different from the place of jurisdiction.11 This was notwithstanding the fact that in criminal proceedings for torture the accused cannot plead that it was an act of a State body in order to rely on functional immunity. The opinion of the majority is not persuasive. If the rule of functional immunity of individuals acting as a State body cannot be enforced in the case of torture, it should also be recognised that such an exception extends to the jurisdictional immunity of third States. On the contrary, in the immediate case, immunity was acknowledged only for the State as jurisdictional immunity, but it was denied to the State bodies as functional immunity.12

B. The Most Relevant Decisions in the Italian Case Law: The Ferrini Case

The Ferrini decision, concerning a civil action for the damages suffered by an Italian citizen displaced in Germany during the Second World War,13 was the first case 10 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR).

See Ed Bates, The Al-Adsani Case, State Immunity and the International Legal Prohibition on Torture, Human Rights Law Review 2 (2003), 193; Leandro de Oliveira Moll, Al-Adsani v. United Kingdom: State Immunity and Denial of Justice with Respect to Violations of Fundamental Human Rights, Melbourne Journal of International Law 4 (2003), 589. 11

12

Antonio Cassese, Diritto Internazionale: I lineamenti (2006), 125.

The decision has been the topic of several comments. See Carlo Focarelli, Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision, International and Comparative Law Quarterly (ICLQ) 54 (2005), 951; Alessandra Giannelli, Crimini degli Stati ed immunità degli Stati dalla giurisdizione nella sentenza Ferrini, RDI 87 (2004), 643; De Sena/De Vittor (note 1), 89; Massimo Iovane, The Ferrini Judgment of Italian Supreme Court: Opening up Domestic Courts to 13

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before the Italian courts to deal with the matter of conflict between the international rule on civil jurisdictional immunity and the international rules protecting fundamental human rights, which were expressly relied on by the petitioner during the trial. On 4 August 1944 the petitioner, Luigi Ferrini, was captured by German troops in Italy and displaced to Germany, whereupon he was interred until 20 April 1945 into a concentration camp where the inmates produced arms as a result of forced labour. On 23 September 1998 Ferrini appealed to the Court of First Instance in Arezzo (Italy), claiming that Germany was responsible for the physical and mental anguish that he suffered during captivity as a result of the inhuman treatment he was put through. The claim was refused by the Court of First Instance, which considered Germany to enjoy jurisdictional immunity for the acts, which the Court saw as an exercise of sovereign power.14 The same reasoning was followed by the Court of Appeal at the second instance. However, the decision was reversed by the Court of Cassation, which denied the extension of immunity to Germany for the case at hand. The Court firstly underlined that the acts which formed the subject of the civil action fell into the category of war crimes, and were consequently international crimes. For this reason, the acts represented a violation of jus cogens.15 In the Court’s opinion, such rules play the highest importance in the international legal system, and prevail over other rules of law of both customary and conventionary character. In its approach, the Court seemed to affirm the premise often mooted by legal scholars, but which has yet to be followed by State practice,16 that the hierarchically superior position of jus cogens rules allow them to prevail over other forms of interna-

Claims of Reparation for Victims of Serious Violations of Fundamental Rights, Italian Yearbook of International Law 14 (2004), 165. District Court of Arezzo (Tribunale di Arezzo), Case No. 1403/98, Decision of 3 November 2000, not published. 14

15 In para. 7.3 of the Decision, the Court affirms: “alla stregua della Risoluzione 95-I dell’ 11 dicembre 1946, con la quale l’Assemblea Generale delle Nazioni Unite confermò i principi di diritto internazionale dello Statuto e della sentenza del tribunale militare internazionale di Norimberga, sia la deportazione che l’assoggettamento ai lavori forzati dovevano essere annoverati tra i crimini di guerra e quindi tra i crimini di diritto internazionale,” see Court of Cassation (Corte di Cassazione), Case No. 5044/04, Judgment of 11 March 2004, available at: http://www.uniurb.it/scipol/pretelli/3%20 ferrini.pdf (accessed on 15 February 2013). 16 Natalino Ronzitti, Un cambio di orientamento della Cassazione che favorisce i risarcimenti delle vittime, Guida al Diritto – Il Sole 24 Ore 14 (2004), 38.

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tional law, the rules on immunity by deduction being part of this.17 The Court recognised that such a conflict of rules was presented in this case between the customary rules on immunity and the jus cogens rules on the prohibition of slavery and forced labour.18 Yet what led the Court to deny Germany immunity from Italian jurisdiction was not the mere formal issue of hierarchical superiority of jus cogens rules, but the substantial relevance of the values protected by those norms of the international community that were violated, in contrast with the traditional principle of jurisdictional immunity.19 In fact, according to the Court, the rules on immunity, as with every other rule of international law, must be interpreted in a systematic way in the light of the other international principles.20 Consequently, further exceptions to the rule of immunity may be acknowledged in the future that have not yet come to light as no such circumstances have arisen, as far as this is necessary for coherence with the international legal system. One of these exceptions may be the need to give “preponderance to the rules of upper rank” (i.e. international jus cogens), because, in case of violations of these rules, the acknowledgment of immunity “impedes the safeguard of those values, whose protection is to be considered as necessary for the whole international community.”21

C. The 2008 Thirteen Orders

The Italian Court of Cassation keenly followed its own precedent in the thirteen orders (Nos. 14200–14212) of 29 May 2008. Order No. 1420122 is particularly relevant, as it deals with a request made by the Federal Republic of Germany for a See Benedetto Conforti, Diritto Internazionale (8th ed. 2010), 176; Magdalini Karagiannakis, State Immunity and Fundamental Human Rights, Leiden Journal of International Law (LJIL) 11 (1998), 19; Juliane Kokott, Mißbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstößen, in: Ulrich Beyerlin (ed.), Recht zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht, Staatsrecht: Festschrift für Rudolf Bernhardt (2010), 135. 17

18

Court of Cassation, Case No. 5044/04 (note 15), para. 9.

19

De Sena/De Vittor (note 1), 94.

20

Gattini (note 4), 236.

21

Court of Cassation, Case No. 5044/04 (note 15), para. 9.1.

Court of Cassation, Repubblica federale di Germania v. Mantelli e altri; Daimler/Chrysler v. Mantelli e altri, Case No. 14201, Decision of 29 May 2008, available at: www.cortedicassazione.it/ Documenti/14201.pdf (accessed on 15 February 2013). 22

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preventive regulation of jurisdiction for a case of compensation of damages deriving from the displacement of a group of Italians to Germany during the Second World War, and their subsequent submission to forced labour. As in the Ferrini decision, in this case the Court of Cassation also affirmed the Italian courts’ jurisdiction over the German State. In its reasoning the Italian Supreme Court, further to what it expressed in the Ferrini decision, clearly affirmed that it was not applying a rule which already existed, but instead that it was contributing to the development of a new rule in a field of uncertainty in international law.23 So in the lack of a legal rule in force, and also in the lack of a practice aiming at the denial of immunity, the Court made a systematic analysis of the international legal system and noted the dichotomy of two general principles: on the one hand State immunity from civil jurisdiction, and on the other the principle for which “international crimes threaten the humanity as a whole and undermine the foundations of the peoples’ coexistence.”24 In the light of such a dichotomy, the Court established that “the undeniable antinomy between the mentioned principles can be solved only ‘at a systematic level’, with the predominance of the upper rank rules, aimed at guaranteeing the respect of persons’ inviolable rights.”25 In this decision the Court not only confirmed what it had already expressed in the Ferrini case, but it also introduced some new elements. In fact, further to the reassertion of the systematic interpretation of the international legal system, under the light of the values which characterise it from a substantial point of view,26 the Court affirmed that a rule could be derived from State practice limiting States’ immunity from the civil jurisdiction of another State in the occurrence of gross human rights violations.27 Furthermore, the Court expressed the will to contribute, by means of its In fact, the Court affirms it to be aware that, in the present, an explicit international custom does not exist, for which the principle of foreign state’s immunity from civil jurisdiction for acta jure imperii may be infringed in front of acts of such a seriousness, that can be considered as crimes against humanity. According to the Court, it expressed the same awareness in the Ferrini decision, but in that case it was less explicit. See ibid., para. 11. 23

24

Ibid., para. 11, translation provided by the author.

25

Ibid.

The choice of reasoning through ‘principles’, instead of through the technical instrument of a hierarchy of sources, allows the Court to forgo justifying the hard link between perpetration of international crimes and right to act for compensation of the damages suffered as instrument of protection of fundamental rights. 26

27 Carlo Focarelli, Diniego dell’immunità giurisdizionale degli Stati stranieri per crimini, jus cogens e dinamica del diritto internazionale, RDI 91 (2008), 738.

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case law, to the process of the creation of a new rule, and to the affirmation of such a rule in the international legal system.

D. The Milde Case

The same trend was confirmed in the following Court of Cassation case law, and in particular in the Milde judgment, concerning an action brought before the Military Tribunal of La Spezia, which convicted a German officer for the killing of 203 civilians during the military occupation which occurred in northern Italy during World War II.28 On this occasion, the Military Tribunal accepted a claim for compensation attributed to the relatives on behalf of the victims against Germany. The Court of Cassation affirmed that the killing of 203 civilians was a war crime, and for this reason did not accord jurisdictional immunity to Germany, on the ground of a principle which it defined to be a ‘firm point’, consolidating its previous case law. In fact, after the Ferrini decision, the principle of immunity met a limitation in its application where the State activities involve a gross violation of the human person’s freedom and dignity, so to be qualified as international crimes.29 To summarise, the Court affirms a number of things: any international customary rule on human rights, if violated, gives rise to an international crime, as there are no international customary rules on human rights whose violation does not comprise an international crime; there is an obligation, and not a mere option, to persecute and punish international crimes; such an obligation exists for every State in the international community; and the violation of such rules, as a perpetration of international crimes, harms fundamental interests and damages the international order. So, according to the Court, every customary rule on human rights is a rule whose violation gives rise to international crimes, and every international crime labelled in this way involves the universal obligation to exercise jurisdiction.

28 The massacre was carried out on 29 June 1944 in the municipalities of Civitella, Cornia and S. Pancrazio in Italy.

Court of Cassation, Italy v. Milde, Case No. 1072/2008, Judgment of 13 January 2009, para. 3, available at: http://www.icrc.org/ihl-nat.nsf/46707c419d6bdfa24125673e00508145/938e2cb397e8da 36c1257561003a1c4d/$FILE/Italy%20v.%20Milde%202008.pdf (accessed on 15 February 2013). 29

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Every customary rule on human rights is a rule whose violation gives rise to international crimes, and it is compulsory for every State to exercise jurisdiction for the punishment of these violations, two concepts which are difficult to distinguish. Thus according to the Court, it would be illogical to affirm the primacy of these fundamental human rights and then to deny the access to justice, thereby excluding the possibility to ensure the effective enforcement of those rights.30 In analysing the Court’s decision, it clearly appears that its grounds for refusing to acknowledge jurisdictional immunity to Germany are based on the predominance of the rules protecting the human person, which fall into international jus cogens, over other international rules. Unlike the 2008 thirteen orders, in this case the general reasoning of the Court, based on the concept of values of the international legal system, aims to uphold the need to protect the person’s inviolable rights. Finally, unlike the 2008 thirteen orders, in this case the Court of Cassation’s reasoning does not refer to any customary rule which may aim to limit the significance of State jurisdictional immunity in the occurrence of gross human rights violations.31 The predominance of rules which protect human rights in general, acknowledged by the Court on the grounds of their peremptory nature and on other logical and systematic considerations, may not take due consideration of the specific international practice on State immunity relating to international crimes, which argues to the contrary. In fact, beyond the Italian case law, it is still necessary to refer to international practice for the recognition of international customary law. The practice maintained by the generality of States, along with its general legal argumentation, is equivalent to what the States, as the recipients of international law, consider as common international law. Can a State’s supreme court disregard the specific international practice on the denial of State immunity in favour of the superior needs of peremptory norm or other needs based on the general practice of human rights protection? Nevertheless, the innovation provided by the Court of Cassation’s case law, especially in the Ferrini and Milde decisions, has to be noted for the interpretation of the rule on jurisdictional State immunity. One can agree with the Italian judges on the fact that respect for the inviolable rights of the human being is nowadays a funda30

Ibid., para. 7.

Carlo Focarelli, Diniego dell’Immunità alla Germania per crimini internazionali: la suprema corte si fonda su valutazioni ‘qualitative’, RDI 92 (2009), 369. 31

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mental value of the international legal system. The possibility to establish a ‘human rights exception’ to the general rule on State immunity does not any more seem to be absurd,32 so the possibility of such an evolution in international law is not excluded. In this field, the Italian case law may again play the same innovative role that it already played at the beginning of the twentieth century when it contributed to the consolidation of the principle of relative immunity. In any case, it must be considered that today’s State practice is not yet in favour of such a development, meaning the Italian case law must be considered in relative isolation.33 But the fact that several national courts – as well as the ECtHR – have never stated their favour of the denial of State immunity from civil jurisdiction does not mean that the international and domestic case law, along with State practice, are not sensitive to such an eventuality. Furthermore, if a rule on the denial of State immunity is currently being formed, such a rule should only be applied when the facts under examination occur after this point, without retroactive effect. On the contrary, this would create several problems due to the many appeals pending before the Italian courts for compensation for damages suffered during the Nazi occupation.34

III. The ICJ’s Conservative Approach to State Jurisdictional Immunity in Light of the Recent Decision in Germany v. Italy On 3rd February 2012 the ICJ rendered its judgment on the case Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening),35 whose outcome, which proved adverse to Italy, had been expected by the Italian and European academic 32 Indeed, this possibility was considered by the Preparations of the 2004 UN Convention on Jurisdictional Immunities of States and Their Properties (note 4), but it was not provided in the text of the Convention in order to make adoption easier.

The case law mentioned by the Court of Cassation in support of its opinion has never denied immunity for human rights violations. See, e.g., House of Lords, Opinions of the Lord of Appeal for Judgment in the Cause Jones v. Minister of Interiors of Saudi Arabia and Colonel Abdul Aziz, 14 June 2006, [2006] UKHL 26, available at: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/ jd060614/jones.pdf (accessed on 15 February 2013). 33

34

Focarelli (note 31), 409.

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 15 February 2013). 35

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community.36 It is an extremely conservative judgment based on a positivist approach aiming at the reconstruction of existing customary law. It stands diametrically opposed to the Italian point of view, whose argumentation is grounded not in State practice, but on legal theory: in fact, it is an attempt to prove that, as the international legal order is changing, it is necessary to acknowledge that a new exception to the rule on immunity should also be accepted.37 Although it delivered a flawless argument under traditional international law as based on a careful enquiry of international practice, the Court made a merely quantitative enquiry of the practice and not a qualitative one: it tried to maintain the idea of the non-existence of a customary rule providing for the denial of immunity, founding its argument on a quantitative assessment of the practice consistent with this. This route led the Court to consider the problem as a mere research for practices either consistent or inconsistent with each argument of the Italian defence, relegating the opinio iuris element to a secondary matter, and to give to the international practice and case law a much more important role than domestic jurisprudence. Finally, in the reconstruction of the international practice and case law, the Court seemed more inclined to continually quote the international and domestic practice which was consistent with its own argument while disregarding the practice which showed a tendency against it.38 The same objection is made by Judge Yusuf in his dissenting opinion, where he points out that it is not therefore very persuasive to characterise some of the exceptions to immunity as part of customary international law, despite the continued existence of conflicting domestic judicial decisions on their application, while interpreting other exceptions, similarly based on divergent domestic courts’ decisions, as supporting the non-existence of customary norms. This may give See Francesco Moneta, State Immunity for International Crimes: the Case of Germany versus Italy before the ICJ: Jurisdictional Immunities of the State (Germany v. Italy), Hague Justice Journal 4 (2) (2009), 139. 36

On the contrary, the Italian point of view is similar to the methodology used by the dissenting judge Conçado Trindade, who admits the existence of a new ‘international constitutional order’ on the basis of the duty to protect human rights, as his argument is not grounded on international practice, but on academic opinion. See ICJ, Jurisdictional Immunities of the State (note 35), Dissenting Opinion of Judge Conçado Trinidade, available at: http://www.icj-cij.org/docket/files/143/16891.pdf (accessed on 15 February 2013). 37

Riccardo Pisillo Mazzeschi, Il rapporto fra norme di jus cogens e la regola sull’immunità degli Stati: alcune osservazioni critiche alla sentenza della Corte internazionale di giustizia del 3 febbraio 2012, Diritti umani e diritto internazionale (DUDI) 6 (2012), 310. 38

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the impression of cherry-picking, particularly where the number of cases invoked is rather limited on both sides of the equation.39 The Court has shown itself to still be tied to a State-centric view of international law based on the predominant role of State practice, and – unlike in other recent judgments40 – it pays little attention to the individual’s role in international law, without leaving open any avenue either for the progressive development of international law, or – more seriously – for the eventual possible existence of newly-affirmed customary rules. From this perspective, the Court seems to have bypassed the main problem of the dispute, which is related to the question of whether the international rule on State jurisdictional immunity can be infringed when it is in actual and tangible contrast with peremptory norms.41 The Court’s argument isolated, among peremptory norms, only the problem of the eventual contrast between the international rules on armed conflict (which protect civilians from killings, and civilians and war prisoners from forced displacement and forced labour) and the customary rule on States’ jurisdictional immunity, and it did not deepen the matter of the relationship between such a rule and the whole body of jus cogens norms.42 Furthermore, the Court quickly settled the dispute through the assertion that the conflict between the two rules cannot exist because “the two sets of rules address different matters” as the rules on immunity have a procedural nature, thus they do not have any consequence on the question of whether the conduct of Germany was lawful or unlawful. For the same reason, acknowledging a State’s jurisdictional immunity does not mean admitting a situation created by the violation of a jus cogens norm to have been lawful.43 Such an assertion begets several problems. Firstly, it may be in contrast with the principle of international law ex iniuria non oritur jus, according to which every con39

ICJ, Jurisdictional Immunities of the State (note 35), Dissenting Opinion of Judge Yusuf, para. 23.

In its famous judgments LaGrand and Avena the Court admitted that in certain cases individuals can become recipients of international law. See ICJ, LaGrand (Germany v. United States of America), Merits, Judgment of 27 June 2001, ICJ Reports 2001, 466; id., Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, ICJ Reports 2004, 121. 40

41 Massimo Panebianco/Francesco Buonomenna, Corte Internazionale di Giustizia (3 febbraio 2012): jura immunitatis o jura humanitatis, Rivista della Cooperazione Giuridica Internazionale 14 (2012), 22. 42 Livia Cosenza, Immunità dello Stato e ius cogens nella sentenza del 3 febbraio 2012 della Corte internazionale di giustizia, DUDI 6 (2012), 327. 43

ICJ, Jurisdictional Immunities of the State (note 35), para. 93.

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sequence of an unlawful act should be considered as void. Following this theory, no right (or procedural guarantee) should derive for the perpetrator of the unlawful act from the undisputed unlawfulness of the violations of international law of armed conflict made by Germany. In fact, the Court points to Germany’s admission that “the untold suffering inflicted on Italian men and women in particular during massacres, and on former Italian military internees” are unlawful acts which involve the international responsibility of the State.44 Moreover, the Court adds that it is “a matter of surprise – and regret – that Germany decided to deny compensation to a group of victims on the ground that they had been entitled to a status which, at the relevant time, Germany had refused to recognize.”45 Nevertheless, in a previous case the Court had already affirmed that “the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs.”46 Consequently, when Germany admitted the unlawfulness of the acts committed against the Italian victims and, at the same time, pleaded jurisdictional immunity, the Court should rather have established Germany’s responsibility for the acts which occurred during the Nazi occupation in Italy, and only after such an establishment should it grant immunity to Germany. This different approach may have led to a different outcome in the judgment, at least in relation to the Italian last resort argument, because the assessment of the German responsibility would give rise to the question of giving reparation for the unlawful act committed by Germany. On the contrary, the Court dismissed the possibility of granting reparation to entitled persons through the denial of immunity, and arbitrarily limited the subject-matter of its enquiry to the violations claimed by Germany, i.e. the denial of the German immunity before the Italian Courts,47 thus removing any chance of considering the lawfulness of the factual background of the disputes before the Italian Courts. Furthermore, the Court’s argument which considers jurisdictional immunity as a mere procedural matter is not persuasive. Judge Bennouna deals with this issue too, as 44

Ibid., 52.

45

Ibid., 99.

ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Merits, Judgment of 4 June 2008, ICJ Reports 2008, 244, para. 196. 46

47

ICJ, Jurisdictional Immunities of the State (note 35), paras. 52, 61.

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he argued in his separate opinion that when it arises in connection with international crimes, as in the present dispute, the question of jurisdictional immunity raises fundamental ethical and juridical problems for the international community as a whole, which cannot be evaded simply by characterizing immunity as a simple matter of procedure.48 Moreover, if one accepts immunity to be a procedural rule, further doubts are risen by the sharp distinction between procedural and substantial rules, upon which the Court argued that, although the trials before the Italian Courts dealt with gross violations of the peremptory norms on armed conflicts (violations of substantial norms), the rules on immunity (procedural norms) should be enforced anyway. Such a distinction, if it is consistently applied, should also deny the effects of the consolidated and undisputed distinction between acta jure imperii and acta jure gestionis. By virtue of this distinction, jurisdictional immunity is granted only for those acts through which the State wields its sovereignty (acta jure imperii), because the enquiry on the character (as acta jure imperii or jure gestionis) of the subject-matter acts of the dispute is an enquiry on the substance of the violated norm. As a consequence of the Court’s distinction, immunity should be enforced for the acta jure gestionis too, as it is a procedural rule, not a substantial one. But refusal of the theory of absolute immunity (i.e. immunity for every act of the State, regardless of its nature as an actum jure imperii or jure gestionis) is nowadays well-established, and considered as corresponding to customary law. For this reason, the Court’s argument on the distinction between substantial and procedural rules might be in contradiction with the definitively accepted theory of relative immunity (i.e. immunity only for the State’s acta jure imperii), which is supported by a plentiful international practice. Finally, the Court’s analysis relied upon the distinction between procedural and substantial rules.49 The consequence of such a distinction, in the Court’s reasoning, was that no contrast may exist between State jurisdictional immunity, which is a procedural rule, and jus cogens norms, which are substantial rules. This may be disproved 48

ICJ, Jurisdictional Immunities of the State (note 35), Separate Opinion of Judge Bennouna, para. 9.

Stefan Talmon, Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished, LJIL 25 (2012), 979; François Boudreault, Identifying Conflicts of Norms: the ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), LJIL 25 (2012), 1003. 49

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by a different approach that considers both of the contrasting rules as having the same procedural nature: one could assert that in the case before the Hague Court the actual conflict was between the rule on jurisdictional immunity and the rules on the access to justice and reparation. Under this approach, the Court could not claim that “the two sets of rules address different matters” because they are both procedural rules, and could not easily solve the matter by a priori asserting that a contrast does not exist. The argument of the distinction between procedure and substance shows an unsatisfactory examination of the possible contrast between jus cogens norms and the rule on immunity, and seems to be an elegant, but rather abstract and formal, legal tool used in order to avoid facing the crucial element of the dispute and providing a solution to solve the contrast.50

IV. ICJ’s Approach to the Italian Point of View on Jurisdictional Immunity, and its Refusal of the Italian ‘Last Resort’ Argument Under the light of the previous analysis, one should ask whether the Hague Court took into consideration the Italian approach to the issue of jurisdictional immunity in its arguments which led to the assessment of the Italian violation of the rule on State immunity. For this purpose, what is not persuasive is the Court’s refusal of the Italian defence’s last resort argument on the ground of the narrowing of the field of enquiry only to the violation of the rule on immunity. In fact, the Court omitted the assessment of the other violations claimed by the claimants, as the in particular the individual right to reparation and the access to justice, and focussed only on the violation of the rule on State immunity. The Court noted ‘with surprise and regret’ that most of the Italian victims of war crimes and crimes against humanity were excluded from the right to reparation. Nevertheless, the Court added that “whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged and whether it has an obligation to make reparation.”51 50

Pisillo Mazzeschi (note 38).

51

ICJ, Jurisdictional Immunities of the State (note 35), para. 100.

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With this argument, although it admits that the entitlement of a State to immunity does not preclude its international responsibility, the Court does not clarify which consequences spring from this responsibility.52 The Court establishes that the scope of international practice does not extend to identifying the existence of a rule providing that “the entitlement of a State to immunity [is] dependent upon the existence of effective alternative means of securing redress,”53 and for this reason it refused the Italian last resort argument. However, the Court seems not to have sufficiently taken into consideration the consequences of such a refusal.54 The lack of further possible means to guarantee reparation to those victims of international crimes who pleaded before the Italian courts that they lacked protection under the German domestic legal order is not only a cause to rule out the procedural norm on State immunity, but also a direct consequence of the unlawful act committed by Germany. It is not enough to note ‘with surprise and regret’ that such individuals are unable to benefit from reparation either before the German courts or before the ECtHR, and then to decide that Germany has no duty to provide reparation to them. Moreover, such a denial of reparation calls into question the usefulness of the existence of jus cogens norms in the international legal order imposing obligations on certain States and granting corresponding rights to the other States and to the victims, if these victims can not actually exercise those rights.55 In fact, the principle nullum ius sine actione, according to which there is no existing right when remedies for its violations are lacking, is a general principle of law recognised by civilized States which the Court is obliged to respect under Article 38 of the ICJ Statute.56 However, the Court did not take such issues into consideration, and it affirmed that the matter of reparation for the victims of human rights violations can be re-

52 Andrea Bianchi, Il tempio e i suoi sacerdoti. Considerazioni su retorica e diritto a margine del caso Germania c. Italia, DUDI 6 (2012), 293. 53

ICJ, Jurisdictional Immunities of the State (note 35), para. 101.

54

Pisillo Mazzeschi (note 38).

The same argument was supported by a minority of eight judges of the ECtHR in the judgment Al-Adsani v. United Kingdom, who maintained that the jus cogens nature of the prohibition of torture involved that the State responsible for the unlawful act cannot plead the norm on State immunity because such a norm is hierarchically inferior to the jus cogens norm. However, the majority of nine judges did not welcome such an argument. See ECtHR, Al-Adsani v. United Kingdom (note 8). 55

56

See Conforti (note 17), 380.

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solved by further negotiations between the parties.57 With this assertion the Court once again neglected the victims’ interests in favour of a conservative and Statecentric conclusion founded on the pretext of the absence of international practice or case law supporting a different view, and – more seriously – omitted to consider the consequences of an unlawful act.58

V. The Effects of the ICJ’s Judgment on the Implementation of the Rule on State Immunity before the Italian Courts, and the Problems Deriving from the Enforcement of the Judgment in the Italian Legal Order The enforcement of the judgment, as ordered by the Court, requires both the cessation of the effects of the unlawful act (“[t]he decisions and measures infringing Germany’s jurisdictional immunities which are still in force must cease to have effect”) and the restoration of the ex ante situation (“the effects which have already been produced by those decisions and measures must be reversed, in such a way that the situation which existed before the wrongful acts were committed is re-established”59). Nevertheless, such a requirement creates several problems in the Italian legal order, mostly in relation to its being contrary to claim preclusion (res judicata) through the institution of the Italian law called regolamento di giurisdizione,60 and to the constitutional principle of the autonomy of the judicial authority.61 The peculiar kind of reparation imposed on Italy by the ICJ constitutes restitutio in integrum, under which the Italian Government should redress in full the damage caused by the unlawful acts.62 According to the Court, such a reparation involves not 57

ICJ, Jurisdictional Immunities of the State (note 35), para. 104.

58

Pisillo Mazzeschi (note 38).

59

Ibid., para. 137.

The regolamento di giurisdizione is a procedural institution of the civil branch, provided by Art. 41 of the Italian Code of Civil Procedure, through which the conflicts of jurisdictions among civil, administrative or special judges can be previously solved. 60

61 Maria Luisa Padelletti, L’esecuzione della sentenza della Corte internazionale di giustizia sulle immunità dalla giurisdizione nel caso Germania c. Italia: una strada in salita?, RDI 95 (2012), 444.

See Felicia Maxim, Forms of reparation of prejudice in international law – reflections on common aspects in the draft regarding the responsibility of the States for internationally wrongful acts, Juridical Tribune 1 (2) (2011), 19, 21. 62

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only the cessation of the acts and the effects of the acts currently being undertaken, but also the abatement of the effects already produced, which is made more difficult when the effect of the violation of the international rule is to grant an individual reparation from the foreign State. The enforcement of the judgment in Italy means that Italian jurisdiction over Germany is precluded in every case past, present and future, even if such a preclusion requires the reopening of proceedings which have already been concluded. Moreover, when the Court qualified restitutio in integrum as the content of the obligation to reparation incumbent on Italy, the violator of the international rule on immunity, towards Germany, the injured State, the Court itself considered this to be materially possible and assumed that the burden derived from the judgment was not disproportionate compared to the advantage brought to the injured party.63 The fact that the violation of the international rule comes from the particular State body which is the judicial authority, and that some decisions may have gone judicata, meaning that they have been conclusively decided and cannot be revised, is not a reasonable obstacle for the restitutio in integrum reparation imposed to Italy according to the Court.64 In relation to this imposition, the Court did not take into consideration that in the Italian legal order res judicata judgments are not able undergo revision aside from in exceptional cases, and that for this reason the enforcement of the Court’s judgment in the Italian legal order by mean of the restitution in integrum might be very arduous, or indeed perhaps constitutionally impossible, and may violate the principle of separation of the powers.65 For the reasons described above, the enforcement of the judgment may present some problems mostly in relation to the actions for which a final decision has already been taken. For those proceedings which are still pending, the restoration of the conditions prior to the unlawful act should be possible through the declaration of the lack of jurisdiction towards Germany in such proceedings. This does not raise any issue concerning the independence of the judicial authority because in the Italian legal order a finding of lack of jurisdiction due to international law can be autonomously made

63

ICJ, Jurisdictional Immunities of the State (note 35), para. 137.

64

Ibid.

Francesco Salerno, Gli effetti della sentenza internazionale nell’ordinamento italiano: il caso Germania c. Italia, DUDI 6 (2012), 330. 65

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by the judge in any stage of the proceedings.66 The ICJ’s judgment binds internal judges to autonomously find a lack of jurisdiction, regardless of the existence of statute law to the contrary having been finalised by the legislative authority. Moreover, under such a perspective it can be also considered that, in so far as the ICJ’s judgment elucidates the customary norm on State immunity, it clarifies the content of the international obligations created by it which are brought into the Italian legal order by Article 10 of the Italian Constitution,67 under which “the Italian legal system conforms to the generally recognised rules of international law.”68 In this way, the judgments of the Hague Court acquire a validity which is similar to that of the judgments of the ECtHR. After several years of uncertainty on the validity of the Strasbourg case law in the Italian legal system, the Italian Constitutional Court finally intervened in 2007.69 It clarified that, when a dispute arises from an obligation contained in the ECHR, the Strasbourg Court’s case law binds the internal judicial bodies unconditionally and absolutely when establishing the content of that obligation, provided that it meets the constitutional provisions. The same argument can be supported in relation to the judgments of the ICJ, whose function is to settle disputes “in accordance with international law” (Article 38 (1) of the ICJ Statute). As a consequence, ICJ’s judgments affect the interpretation which will be given to State immunity, as the pro futuro implementation of State immunity before the Italian Courts might be bound by the interpretation of such a rule provided by the Hague Court, as far as the Strasbourg Court’s case law unconditionally binds the Italian Courts for the interpretation of the obligations deriving from the ECHR.70 66 See Art. 11 of the Law No. 218, 31 May 1995, for civil proceedings, and Art. 20 of the Italian Code for Criminal Procedure, for criminal proceedings where Germany has civil responsibility.

See also Fulvio Palombino, Gli effetti della sentenza internazionale nei giudizi interni (2008); Aïda Azar, L’exécution des décisions de la Cour International de justice (2003). 67

68 Art. 10 of the Constitution of the Italian Republic, available at: http://en.camera.it/application/ xmanager/projects/camera_eng/file/costituzione-aggiornata_EN_10_10_12.pdf (accessed on 28 February 2013). The cited norm of the Constitution introduces customary international law into the Italian legal order. As a consequence of this, any customary rule of international law has the same degree of the Constitution in the hierarchy of the sources of law in the Italian legal order.

Constitutional Court of Italy (Corte costituzionale della Repubblica Italiana), Case Nos. 347/2007 and 348/2007, Judgments of 24 October 2007, available at: http://www.giurcost.org/decisioni/2007/ 0348s-07.html (accessed on 15 February 2013) and at: http://www.giurcost.org/decisioni/2007/0349s07.html (accessed on 15 February 2013). 69

70 On the effects of ECtHR’s case law in the italian legal order, see Elisabetta Lamarque, Gli effetti delle sentenze della Corte di Strasburgo secondo la Corte Costituzionale italiana, Corriere Giuridico 7 (2010), 955; Ugo Villani, Sull’efficacia della Convenzione Europea dei Diritti dell’Uomo nell’

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On the other hand, the enforcement of the ICJ’s judgment is much more complex in relation to the actions for which a final decision has already been taken, even though this only concerns the matter of jurisdiction. In fact, even among the cases where the civil proceeding is still pending, there are several cases in which the Court of Cassation acknowledged the jurisdiction of the Italian Courts through the institution of the preventive regolamento di giurisdizione. Such an institution is a tool which allows the parties to get a definitive pronouncement on the matter of the jurisdiction at the first instance proceedings. As the preventive regolamento di giurisdizione provides for a definitive pronouncement on the matter of jurisdiction, it involves the creation of claim preclusion (res judicata) for the proceeding in which it is rendered (internal effectiveness), as well as for different proceedings (external effectiveness).71 It may be noted that the Court of Cassation has excluded the creation of claim preclusion when the matter of jurisdiction involves jurisdiction towards a foreign State,72 but it added that this occurs only in relation to the external effectiveness (of proceedings similar to those for which the ICJ’s decision was rendered), whereas a claim preclusion is regularly created in relation to its internal effectiveness (for proceedings in which the regolamento di giurisdizione is rendered).73 As a result of the impossibility of revoke the pronouncement of a preventive regolamento di giurisdizione,74 which has been discussed above, the only solution to enforce the ICJ’s judgment is through enactment of a legislative measure. The international obligation imposed on Italy by the Court’s judgment is an obligation of result, which ordinamento italiano dopo Lisbona, in: Lina Panella/Ersiliagrazia Spatafora (eds.), Scritti in onore di Claudio Zanghì, vol. II: Diritti umani (2011), 665; Marco Calisto, Alcune precisazioni in merito alla portata nell’ordinamento italiano dei diritti menzionati dal nuovo art. 6 TUE, in seguito alle recenti pronunce del giudice amministrativo, Grotius: Rivista di Storia, Istituzioni e Politica Internazionale 5 (2008), 182. 71

Crisanto Mandrioli, Diritto processuale civile, I (2009), 232.

72

Court of Cassation, Case No. 19600, Judgment of 17 July 2008, reprinted in: RDI 92 (2009), 596.

For this reason, in the Ferrini case the Court of Cassation dismissed the possibility to consider for the second time the matter of jurisdiction, denying the admissibility of the preventive regolamento di giurisdizione requested by Germany, see Court of Cassation, Case No. 14200, Order of 29 May 2008. 73

The causes which allow to revoke or modify the pronouncements on the preventive regolamento di giurisdizione are contained in an exhaustive list provided by Art. 391bis of the Italian Code of Civil Procedure, and cannot be invoked to revoke the decisions which asserted the jurisdiction of the Italian judges in the above-examined case. See Remo Caponi, Corti europee e giudici nazionali, in: Various Authors, Atti del XXVII Convegno nazionale dell’Associazione italiana fra gli studiosi del processo civile, Corti europee e giudici nazionali – Verona, 25–26 September 2009 (2011), 239. 74

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leaves the choice on the best means to achieve the imposed result at the State’s discretion.75 This evokes a second problem, i.e. the compatibility of an eventual ad hoc legislative measure with the constitutional principle of the independence of the judicial authority. In fact, the restoration of the situation previous to the unlawful extension of jurisdiction would involve the enacting of an act of Parliament, which intervenes only in the pending proceedings, in order to deprive the definitive decisions on jurisdiction of their effectiveness. Nevertheless, in a similar case, the Italian Constitutional Court declared that an act excluding a civil remedy which had already been made final (res judicata), was incompatible with the Italian Constitution because it neutralised the effects of the defence activity carried out by the winning party (violations of Articles 3 and 24 of the Italian Constitution), and also because it violated the constitutional powers of the judicial authority (le attribuzioni costituzionali dell’ autorità giudiziaria cui spetta la tutela dei diritti), in violation of Articles 102 and 113 of the Italian Constitution.76 Therefore, the same problem could arise in relation to an act annulling the decisions made in the proceedings against Germany. An alternative way to enforce the judgment might be the enacting of legislation which adds further causes to the ones which justify the revision of the Court of Cassation’s decisions rendered after a preventive regolamento di giurisdizione. This legislation should add the new causes to the exhaustive list contained in Article 391bis of the Italian Code of Civil Procedure (Codice di Procedura Civile),77 but this may violate the principle of the parties’ legitimate expectations towards a definitive decision. Currently, the only way to make the changes in the legal system which are necessary to enforce the judgment are founded on the implementation of Article 10 of the 75 “The respondent has the right to choose the means it considers best suited to achieve the required result,” see ICJ, Jurisdictional Immunities of the State (note 35), para. 137.

Constitutional Court of Italy, Case No. 364, Judgment of 7 November 2007, para. 4. See Remo Caponi, Giudicato civile e leggi retroattive, Foro italiano (2009-I), 992. Art. 102. 1 of the Italian Constitution provides that “judicial proceedings are exercised by ordinary magistrates empowered and regulated by the provisions concerning the Judiciary”. 76

77 Art. 391bis (entitled “Correction of material mistakes, and revocation of the decisions of the Court of Cassation”) of the Italian Code of Civil Procedure (Codice di procedura civile), as amended by Decree Law (D.L.), 22 June 2012, No. 83 (converted by Law, 7 August 2012), and by D.L. 18 October 2012, No. 245 (not converted yet), available at: http://www.altalex.com/index.php?idnot=33738 (accessed on 28 February 2013).

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Italian Constitution, the ‘permanent transformer’78 which opens the Italian legal system to the customary rules of international law. The ICJ’s judgment clarifies the content of the customary rule on State immunity, and this should prevail over other domestic constitutional values thanks to the role played by Article 10 itself.79

VI. Conclusions From the Italian point of view, the ICJ’s judgment did not explore far enough into the crucial points of the dispute, as persuasive concrete answers to the important topics it dealt with were not forthcoming. No definitive answer has been given to the matter of the relationship between the human rights norms, which have an increasing importance in the international legal order, and other customary norms. The rule on State immunity has also not yet been suitably defined in relation to other basic principles of international law, such as international responsibility and the duty of reparation.80 Moreover, the judgment does not examine the possibilities of implementing the concept of jus cogens to a significant enough extent and marks a halt in the evolution of the notion of jus cogens itself, which had led to its definitive acceptance in international practice and case law, although no definitive and unquestionable clearness regarding its content had developed with it. The judgment represents the result expected by those who agree that the basis of international law must be in State practice. However, it is a disappointing decision for those who had hoped that fundamental rights of the individuals and the fundamental values of the international community (represented by jus cogens) would find increasing protection from the prevailing interests of the State under the increasingly outdated State-centric conception of international law. The judgment came perhaps a little too early: if the dispute were to arise a decade after the date of the judgment the conclusion could have been different. The outcome of the judgment in favour of 78 This is the famous definition given to Art. 10 (1) of the Italian Constitution (“[t]he Italian legal system conforms to the generally recognised rules of international law”) by Tomaso Perassi, an eminent scholar of the Italian international legal commentary. See Tomaso Perassi, La Costituzione e l’ordinamento internazionale (1952), 22. 79

Padelletti (note 61), 450.

80

Pisillo Mazzeschi (note 38).

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Germany was hardly avoidable, yet one might expect a less conservative approach from the main world jurisdictional body, which could otherwise have given a signal of openness towards the progressive development of international law.

The Meaning of ‘Culture’ in Article 15 (1)(a) of the ICESCR – Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures ATHANASIOS YUPSANIS(

ABSTRACT: On 21 December 2009 the Committee on Economic, Social and Cultural Rights (CESCR) adopted General Comment No. 21 on the right of everyone to take part in cultural life of Article 15 (1)(a) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR),1 admittedly one of the most vaguely framed and neglected rights of the Covenant. With this Comment the CESCR finally gives solid substance to the norm by clearly defining its content and scope, the beneficiaries and the nature of the right, and the range of obligations it imposes on States for its implementation. Especially with regards to elements of the provision that touch on minority issues, the CESCR embraces a multicultural approach, officially establishing the right of minorities as collectivities to participate in their own cultural life. Thus, via the CESCR’s progressive interpretation together with the right to individual and group communication for alleged violations of the rights of the ICESCR recognised by the Optional Protocol to the Covenant, the provision acquires a new dynamic role, analogous to that of Article 27 of the International Covenant on Civil and Political Rights (ICCPR),2 serving potentially as a significant pillar for the protection, preservation and promotion of minority cultures. KEYWORDS: ICESCR, Article 15 (1)(a) of the ICESCR, General Comment No. 21, Culture, Cultural Life, Cultural Rights, Minority Rights, Collective Rights, Free Prior and Informed Consent

LL.M., Ph.D. in International Law (Aristotle University of Thessaloniki); Adjunct Lecturer at the Law Faculty of Democritus University of Thrace. Email: [email protected]. (

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, International Legal Materials (ILM) 6 (1967), 360. 1

2

International Covenant on Civil and Political Rights, 16 December 1966, ILM 6 (1967), 368.

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I. Introduction Cultural rights are commonly characterised by international legal scholars specialising in the field as a category, which, until relatively recently, was neglected3 and underdeveloped4 as regards their normative content, scope of application and legal enforceability.5 Typically, they have been described as ‘the Cinderella of the human rights family’,6 as ‘forgotten’,7 a ‘ragbag’,8 ‘hazy’,9 and almost a ‘remnant’,10 category. This description is also apt in the right enshrined in Article 15 (1)(a) of the ICESCR, “the right of everyone to take part in cultural life,”11 a right which, until fairly recently, neither the United Nations and the CESCR charged with overseeing the application of the ICESCR12 nor the international legal academia13 taken more than a minor and occasional interest.14 This absence of interest was inter alia due to a series 3 See Paul Hunt, Reflections on International Human Rights Law and Cultural Rights, in: Margaret Wilson/Paul Hunt (eds.), Culture, Rights, and Cultural Rights – Perspectives from the South Pacific (2000), 25, 25. 4 See Janusz Symonides, Cultural Rights, in: Janusz Symonides (ed.), Human Rights, Concept and Standards (2000), 175, 175. 5 Janusz Symonides, Cultural Rights: A Neglected Category of Human Rights, International Social Science Journal 158 (1998), 559, 559.

Halina Nieć, Casting the Foundation for the Implementation of Cultural Rights, in: Halina Nieć (ed.), Cultural Rights and Wrongs (1998), 176, 176. 6

7

Peter Leuprecht, The Difficult Acceptance of Diversity, Vermont Law Review 30 (2006), 551, 564.

Fons Coomans, Economic, Social and Cultural Rights, Report commissioned by the Advisory Committee on Human Rights and Foreign Policy of the Netherlands, SIM-Special 16 (1995), 3, 4. 8

9 Lyndell V. Prott, Cultural Rights as Peoples’ Rights in International Law, Bulletin of the Australian Society of Legal Philosophy 10 (1986), 4, 7. 10 Asbjørn Eide, Cultural Rights as Individual Human Rights, in: Asbjørn Eide/Catarina Krause/ Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (1st ed. 1995), 229, 229.

See “In relation to International Covenant on Economic, Social and Cultural Rights (ICESCR), the single most neglected right is the right to take part in cultural life.” Philip Alston, Individual Complaints: Historical Perspectives and the International Covenant on Economic, Social and Cultural Rights, in: Sarah Pritchard (ed.), Indigenous Peoples, the United Nations and Human Rights (1998), 81, 84. 11

12 See Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (2007), 1, 49, 51. 13 See Laura Pineschi, Cultural Diversity as a Human Right? General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, in: Silvia Borelli/Federico Lenzerini (eds.), Cultural Heritage, Cultural Rights, Cultural Diversity (2012), 29, 31, footnote 14. 14 See Vladimir Volodin/Yvonne Donders, Conclusion, in: Yvonne Donders/Vladimir Volodin (eds.), Human Rights in Education, Science and Culture – Legal Developments and Challenges (2007), 309, 310.

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of practical difficulties in addressing the subject; namely the obscure conceptual content of the notion of ‘participation in cultural life’,15 the vagueness about the content and extent of the obligations it imposes on States for its implementation,16 and the conflicting views regarding the individual and or collective nature of the related right, and the correlative identity of its beneficiaries.17 In this context, the right of minorities and their members to participate in their own cultural life was negatively affected. Indeed, there was an additional factor in their case that led to the neglect of their relative right(s). Specifically, as has been stated in the CESCR’s first general discussion on the right to take part in cultural life, the absence of any explicit reference to minorities in Article 15 (1)(a) of the ICESCR had resulted in their being ignored or, at best, being paid insufficient attention.18 This omission of any specific provision for minorities in the norm provided a foothold for positions viewing Article 15 (1)(a) of the ICESCR as of only general relevance for the members of minority groups within the frame of broader human rights theory and practice, with no more concrete correlation with the complexities of minority issues.19 Thus, interest in matters concerning the protection of minorities in the framework of international human rights treaties focused almost exclusively on Article 27 of the ICCPR, which refers explicitly, though in a negative construction, to the right of members of minorities not to be denied the right to enjoy their own culture, religion and language “in community with other members of their group.”20 In this framework, it was and is commonly the position that the specific provision constitutes the most important international 15 Audrey R. Chapman, Development of Indicators for Economic, Social and Cultural Rights: The Right to Education, Participation in Cultural Life and Access to the Benefits of Science, in: Yvonne Donders/Vladimir Volodin (eds.), Human Rights in Education, Science and Culture – Legal Developments and Challenges (2007), 111, 132.

See Julia Häusermann, The Right to Participate in Cultural Life, in: Rod Fisher/Brian Groombridge/ Julia Häusermann/Ritva Mitchell (eds.), Human Rights and Cultural Policies in a Changing Europe: The Right to Participate in Cultural Life (1994), 109, 125. 16

See Enikő Horváth, Cultural Identity and Legal Status: Or, the Return of the Right to Have Particular Rights, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 169, 169. 17

CESCR, General Discussion on the Right to Take Part in Cultural Life as recognized in Article 15 of the Covenant, 11 December 1992, UN Doc. E/C.12/1992/SR.17 (1992), paras. 9, 11, 43. 18

19

See Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (2002), 51.

See Fergus MacKay, Cultural Rights, in: Margot E. Salomon (ed.), Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous Peoples, Minority Rights Group International (2005), 83, 83–84. 20

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legally binding norm for the rights of members of minorities.21 This view may be enriched now, with the CESCR’s General Comment No. 21 on the right to participate in cultural life, published on 21 December 2009 (General Comment No. 21).22 It clarifies the ‘grey areas’ of Article 15 (1)(a) of the ICESCR and gives solid substance to the right, and especially to the right of minorities and of their members to enjoy a range of cultural rights connected with or deriving from it, establishing it as a potential pillar for the protection, preservation and promotion of minority cultures.

II. Defining ‘Cultural Life’: From ‘High Art’ to a ‘Way of Life’ A. The Problem of the Definition of Culture

One of the basic issues that, until recently, prevented a thorough examination and analysis of the normative content and potential role of Article 15 (1)(a) of the ICESCR is the vagueness of the concept of ‘cultural life’, itself due to the fluid, dynamic and changing content of the term culture from which it derives.23 As it has characteristically been stated by Thornberry, paraphrasing Raymond Williams’ adage, culture “is one of the two or three complicated words in the English language […] and in other languages too.”24 This is why “any attempt to talk about cultural issues in Gaetano Pentassuglia, Reforming the UN Human Rights Machinery: What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?, International Journal on Minority and Group Rights (IJMGR) 14 (2007), 127, 128; Volker Röben, A Report on Effective Protection of Minorities, German Yearbook of International Law (GYIL) 31 (1988), 621, 640 observing that “[w]ithin the legislative framework of the UN, the minority issue, in the strict sense, is to be found only in Article 27 [ICCPR].” See also Christian Groni, The Right to Take Part in Cultural Life, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), 9 May 2008, UN Doc. E/ C.12/40/3 (2008), 10, noting that “[a]s a consequence of the very existence of Article 27 [ICCPR], one could draw the conclusion that minorities or their members do not fall within the scope of application of Article 15 1(a)”. 21

See CESCR, General Comment No. 21, Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1(a) of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009, UN Doc. E/C.12/GC/21 (2009). 22

See Yoram Dinstein, Cultural Rights, Israel Yearbook on Human Rights 9 (1979), 58, 74. See also Dominic McGoldrick, Culture, Cultures, and Cultural Rights, in: Mashood A. Baderin/Robert McCorquodale (eds.), Economic, Social and Cultural Rights in Action (2007), 447, 449–452. 23

Patrick Thornberry, Cultural Rights and Universality of Human Rights, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), UN Doc. E/C.12/40/15 (2008), 3. 24

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terms of rights may be slippery and difficult.”25 The difficulty is reflected in the fact that a 1952 study could record 164 definitions of the concept as employed by anthropologists.26 According to a widely accepted27 conceptual approach proposed by Stavenhagen, ‘culture’ appears to have three main different meanings: a) as capital, identifying with the accumulated material heritage of humankind in its entirety, or of particular human groups: in this frame the right to culture refers to the equal rights of all individuals to this accumulated cultural capital;28 b) as creativity referring to the process of artistic and scientific creation: within this context the right to culture means the right of individuals to freely create their cultural ‘oeuvres’, with no restrictions, and the right of all persons to enjoy free access to these creations (i.e. to museums, concerts and libraries etc.);29 and c) as way of life, meaning the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups: under this perception, Stavenhagen observes that culture is also seen as “a coherent self-contained system of values and systems that a specific cultural group reproduces over time and which provides individuals with the required signposts and meanings for behaviour and social relationships in everyday life.”30

Lyndell V. Prott, Cultural Rights as Peoples’ Rights in International Law, in: James Crawford (ed.), The Rights of Peoples (1st ed. 1988), 93, 95. 25

26

See B. N. Pandey, Culture and Cultural Rights, Central India Law Quarterly XI (1998), 232, 232.

See for example Sean Goggin, Human Rights, Anthropology and Securitization: Reclaiming Culture, Journal of Ethnopolitics and Minority Issues in Europe 8 (2) (2009), 1, footnote 1, available at: http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?ots591=0c54e3b3-1e9c-be1e-2c24a6a8c7060233&lng=en&id=115507 (accessed on 17 October 2012); Evangelia Psychogiopoulou, Accessing Culture at the EU Level: An Indirect Contribution to Cultural Rights Protection?, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 223, 223; V. T. Thamilmaran, Cultural Rights in International Law, Sri Lanka Journal of International Law 13 (2001), 63, 78–79. 27

28 Rodolfo Stavenhagen, Cultural Rights and Universal Human Rights, in: Asbjørn Eide/Catarina Krause/Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (1st ed. 1995), 63, 65–66.

Id., Cultural Rights: A Social Science Perspective, in: Asbjørn Eide/Catarina Krause/Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (2nd rev. ed. 2001), 85, 88. 29

30 Id., Cultural Rights: A Social Science Perspective, in: Halina Nieć (ed.), Cultural Rights and Wrongs (1998), 1, 4–5.

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The last meaning seems to be highly relevant, as will be further discussed, to the right of the members of minorities, and the minorities as such, to participate in their own cultural life.

B. The ‘Traditional’31 Perception: Culture as ‘High Art’

The right “freely to participate in the cultural life of the community” was declared for the first time in an international instrument in Article 27 (1) of the Universal Declaration of Human Rights (UDHR).32 Several authors indicate that the language of ‘participation in cultural life’ was intended at the time of drafting to refer only to cultural life in a narrow elitist viewpoint of ‘high art and belles lettres’ (i.e. the highest artistic and intellectual achievements, the performance and literary arts, painting and sculpture, historical monuments and the contents of museums);33 in the sense that the safeguard established by the norm in question focused on the States’ obligation to bring the ‘masterpieces’, the ‘treasures of culture’, ‘within reach of the masses’.34 Thus, the concept of cultural life did not encompass such dimensions as a specific way of life or the traditions of a community, or matters such as language and religion35 – elements, that is, of crucial importance for minority identity. The same can be said about the right “to take part in cultural life” in Article 15 (1)(a) of the ICESCR, since at the time of its adoption the notion of cultural life was still mainly felt as synonymous

As Hansen notes, “[t]raditionally, universal human rights concerning culture have focused almost exclusively on rights relating to culture or rights concerning creativity, including the visual arts, literature, music, dance, and theater and representing the highest intellectual and artistic achievements of a group.” See Stephen A. Hansen, The Right to Take Part in Cultural Life, in: Richard Pierre Claude/Burns H. Weston (eds.), Human Rights in the World Community: Issues and Action (3rd ed. 2006), 223, 225–226. 31

32 See Universal Declaration of Human Rights, 10 December 1948, American Journal of International Law 43 (1949), 127.

See International Women’s Rights Action Watch, Equality and the Right to Participate in Cultural Life, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), 9 May 2008, UN Doc. E/C.12/40/10 (2008), para. 3. 33

34 See Roger O’Keefe, The ‘Right to Take Part in Cultural Life’ under Article 15 of the ICESCR, International and Comparative Law Quarterly (ICLQ) 47 (1998), 904, 906, footnote 14.

See Yvonne Donders, Cultural Life in the Context of Human Rights, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), 9 May 2008, UN Doc. E/C.12/ 40/13 (2008), 3. 35

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with ‘high art’ and meant to make the ‘high’ aspects of culture more broadly available.36

C. UNESCO’s Approach: The Anthropological Definition of Culture as a ‘Way of Life’

A different approach to the notion of culture in the legal field was first made by UNESCO, whose purpose according to Article 1 (1) of its constitution is inter alia to “contribute to peace and security by promoting collaboration among the nations through education, science and culture.”37 Within this mandate, UNESCO played and continues to play a key role in the elaboration and clarification of cultural rights, having adopted dozens of texts on this subject in the form of non-legally binding recommendations and legally binding conventions.38 In these instruments UNESCO distanced itself from the narrow and elitist concept of culture as ‘high art’, introducing a wider approach ‘borrowed’ from the discipline of anthropology. The first instrument to mark this differentiation was the Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It (26 November 1976), which states in the fifth preambular paragraph, that: culture is not merely an accumulation of works and knowledge which an elite produces, collects and conserves in order to place it within reach of all […] culture is not limited to access to works of art and the humanities, but is at one and the same time the acquisition of knowledge, the demand for a way of life [emphasis added] and the need to communicate.39

Yvonne Donders, The Legal Framework of the Right to Take Part in Cultural Life, in: Yvonne Donders/Vladimir Volodin (eds.), Human Rights in Education, Science and Culture – Legal Developments and Challenges (2007), 231, 249. 36

See Lea Sheaver/Caterina Sganga, Access to Knowledge and the Right to Take Part in Cultural Life, Submission by the Information Society Project at Yale Law School to the Committee on Economic, Social and Cultural Rights, (2008), 1, available at: http://www.law.yale.edu/documents/pdf/ ISP/article15.pdf (accessed on 17 October 2012). 37

See Janusz Symonides, UNESCO’s Contribution to the Progressive Development of Human Rights, Max Planck Yearbook of United Nations Law 5 (2001), 307, 336. 38

39 See Stephen Marks, Defining Cultural Rights, in: Morten Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden – Essays in Honour of Asbjørn Eide (2003), 293, 295, 305.

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Thus, since the mid 1970s, UNESCO adopted a broader meaning of ‘culture’ that encompasses not only cultural products and arts but also the way of life of communities and individuals, and includes matters like education and communication.40 Similarly, in the Mexico City Declaration on Cultural Policies, which was adopted in the World Conference on Cultural Policies (26 July–6 August 1982), it was declared that: in its widest sense, culture may now be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life [emphasis added], the fundamental rights of the human being, value systems, traditions and beliefs.41

In the same line, UNESCO in the Preamble of the UNESCO Universal Declaration on Cultural Diversity (2 November 2001) stated that: culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together [emphasis added], value systems, traditions and beliefs.42

UNESCO’s perception of culture as inter alia ‘a way of life’, ‘modes of life’ and ‘ways of living together’ has, in conjunction with its principal policy declared in Article 1 (1) of the Declaration of Principles of International Cultural Co-operation (4 November 1966) that “each culture has a dignity and value which must be respected and preserved,”43 a vital importance for minority cultures as it implies a State obligation to create the necessary conditions for their protection and preservation.44

Yvonne Donders, A Right to Cultural Identity in UNESCO, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 317, 326. 40

41 See Chandima Dilhani Daskon, Cultural Resilience – The Roles of Cultural Traditions in Sustaining Rural Livelihoods: A Case Study from Rural Kandyan Villages in Central Sri Lanka, Sustainability 2 (2010), 1080, 1085. 42 See William S. Logan, Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection, in: Helaine Silverman/D. Fairchild Ruggles (eds.), Cultural Heritage and Human Rights (2007), 33, 35.

See Stephen Marks, UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science, Culture and Communication, Texas International Law Journal 13 (1977), 35, 50. 43

44 Tina Kempin Reuter, Dealing with Claims of Ethnic Minorities in International Law, Connecticut Journal of International Law 24 (2009), 201, 216.

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D. The Adoption of UNESCO’s Anthropological Approach by the CESCR

Heavily influenced by the aforementioned UNESCO approaches, as is clearly evidenced by an explicit citation of them in a footnote to the present Comment,45 the CESCR officially embraces a broader perception of ‘culture’ that presents a particular interest for the protection of minority cultures. Essentially the Committee adopts the definition proposed in 1992 at its first general discussion on the right of participation in cultural life, declaring that, for the purpose of implementing Article 15 (1)(a) of the ICESCR, it considers the term culture to encompass, inter alia: ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives.46

Thus, one of the positive contributions of General Comment No. 21 is the endorsement of ‘cultural life’ in its anthropological dimension.47 Although the Committee makes no explicit reference to any notion of ‘anthropological approach’, the adoption of ‘culture’ in its widest meaning is evident both in the aforementioned definition and in several parts of its Comment; such as those which state that “culture is a broad, inclusive concept encompassing all manifestations of human existence”48 and that the right to access cultural life includes inter alia the right to “[…] follow a way of life [emphasis added] associated with the use of cultural goods and resources such as land, water, biodiversity, language or specific institutions.”49 This broad, anthropological approach to culture is crucial for the protection of minority cultures, for it is taken to enrich the meaning of Article 15 (1)(a) of the ICESCR in the sense that “the right to take part in cultural life cannot be interpreted as the right to have 45

See UN Doc. E/C.12/GC/21 (note 22), 3, footnote 12.

Ibid., para. 13; Pineschi (note 13), 34. See also Matthew Craven, The Right to Culture in the International Covenant on Economic, Social and Cultural Rights, in: Rod Fisher/Brian Groombridge/ Julia Häusermann/Ritva Mitchell (eds.), Human Rights and Cultural Policies in a Changing Europe: The Right to Participate in Cultural Life (1994), 161, 166. 46

47

Pineschi (note 13), 34.

48

UN Doc. E/C.12/GC/21 (note 22), para. 11.

49

Ibid., para. 15 (b).

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access and to take part in the cultural life of the dominant group only, as it is also the right of any group to maintain and develop its specific culture (or, in other words, its cultural identity).”50 Within this context, the CESCR formally adopts an approach to the concept of culture approximating that of the Human Rights Committee (HRC) of the ICCPR, which in its General Comment No. 23 on Article 27 of the ICCPR noted that: [w]ith regard to the exercise of the cultural rights protected under [A]rticle 27, the Committee observes that culture manifests itself in many forms, including a particular way of life [emphasis added] associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.51

The difference lies in the fact that the interpretive approach of the CESCR is far more detailed and comprehensive, and more generally applicable than the particular case of indigenous peoples. In the framework of this anthropological definition, the Committee asks States Parties, in applying the right enshrined in Article 15 (1)(a) of the ICESCR, to move beyond the material dimensions of culture (e.g. museums, libraries, theatres, cinemas and monuments) and to adopt policies, programmes and support measures promoting effective access for all to intangible cultural goods (e.g. language, knowledge and traditions).52 This conceptual approach to culture as, among other things, a way of life that encompasses essential elements of minority identity, such as language, religion, customs and traditions, etc., is of major significance for the defence of minority diversity, for it is precisely those elements that are threatened with disappearance or decrement and stand in need of immediate protection.53 However, this is not necessarily the case for the majority, which is rarely barred from, for example, using or receiving instruction in its own language, or observing its 50

Pineschi (note 13), 36.

HRC, General Comment No. 23: The Rights of Minorities (Art. 27), 8 April 1994, UN Doc. CCPR/C/21/Rev.1/Add.5. (1994), para. 7. See also Alexandra Xanthaki, Indigenous Cultural Rights in International Law, European Journal of Law Reform 2 (2000), 343, 357. 51

52

UN Doc. E/C.12/GC/21 (note 22), para 70.

Michael Kirby, Protecting Cultural Rights: Some Developments, in: Margaret Wilson/Paul Hunt (eds.), Culture, Rights, and Cultural Rights – Perspectives from the South Pacific (2000), 145, 148. As has been successfully pointed out “‘[c]ultural diversity’ emerges as an argument of the weak.” See also Armin von Bogdandy, The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity – Elements of a Beautiful Friendship, European Journal of International Law (EJIL) 19 (2008), 241, 245. 53

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traditions and so forth.54 As has been argued emphatically: “[t]he majority culture is what is reflective in the native country symbols, national holidays, public institutions and methods of communication. The rest of the cultures are obscured.”55 This, indeed, is why in international law the right to enjoy one’s culture is recognised chiefly in the texts and provisions concerning the rights of minorities and indigenous peoples (e.g. Article 27 of the ICCPR).56 In this context some authors even use the terms cultural and minority rights interchangeably.57

E. Concluding Remarks: The Evolution of the Perception(s) of ‘Culture’

In sum, culture has developed from a narrow elitist concept, mainly including arts and literature, to a broader concept embodying crucial elements for minority identities, such as language, religion and education.58 This wider perception of culture as a way of life that encompasses a series of intangible goods, as officially endorsed by the CESCR in its General Comment No. 21, is vital for the protection of minority diversity since, in conjunction with UNESCO’s view that “each culture has a dignity and value which must be respected and preserved,” it implies a State obligation to safeguard distinct minority cultural identities giving them, in Stavros’ words, an equal chance of surviving.59 Through this interpretation, together with the Committee’s clarification of the beneficiaries of the right (including both minorities as such and 54 See Lyndel Prott, Understanding One Another on Cultural Rights, in: Halina Nieć (ed.), Cultural Rights and Wrongs (1998), 161, 168.

Oswaldo Ruiz Chiriboga, The Right to Cultural Identity of Indigenous Peoples and National Minorities: A Look from the Inter-American System, SUR – International Journal on Human Rights 5 (2006), 43, 63. 55

See Alexandra Xanthaki, Multiculturalism and International Law: Discussing Universal Standards, Human Rights Quarterly (HRQ) 32 (2010), 21, 26; Annamari Laaksonen, Measuring Cultural Exclusion Through Participation in Cultural Life, Third Global Forum on Human Development: Defining and Measuring Cultural Exclusion, 2005, 2, 4, available at: http://www.culturalrights.net/ descargas/drets_culturals135.pdf (accessed on 17 October 2012). 56

See William K. Barth, Cultural Rights: A Necessary Corrective to the Nation State, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 79, 79. 57

Yvonne Donders, The Protection of Cultural Rights in Europe: None of the EU’s Business, Maastricht Journal of International Law 10 (2003), 117, 121. 58

59 Stephanos Stavros, Cultural Rights for National Minorities: Covering the Deficit in the Protection Provided by the European Convention on Human Rights, IALS Bulletin 25 (1997), 7, 7.

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their individual members), the provision acquires a strong potential significance for the protection of minority cultures. It should be noted, however, that the Committee does not adopt a static perception of culture as “a distinct, demarcating, small-scale ‘entity’ with given features that remain unchanging and are reproduced in space and time by setting a system of common values-meanings and producing identical and homogeneous members.”60 On the contrary, having been heavily influenced by the modern anthropological perceptions of culture, which reject the idea of culture as a timeless ‘entity’, the CESCR stresses on the one hand that “[t]he expression ‘cultural life’ is an explicit reference to culture as a living process, historical, dynamic and evolving, with a past, a present and a future,”61 and on the other hand, that cultures do not have fixed borders, since “[t]he phenomena of migration, integration, assimilation and globalisation have brought cultures, groups and individuals into closer contact than ever before, at a time when each of them is striving to keep their own identity [emphasis added].”62 The Committee thus, although perceiving culture as a way of life rejects the essentialist approaches attached to the term as a set of hermetically closed compartments and isolated manifestations, viewing it rather as “an interactive process whereby individuals and communities, while preserving their specificities and purposes, give expression to the culture of humanity.”63 This evolutionary and dynamic understanding of culture seems to be the most important contribution of the discipline of social anthropology to international law’s conceptions of cultural life, inherently rejecting essentialist views of cultural purity and clearly supporting the idea “that multiculturalism is an element of integration and strengthening of a society as a whole, and not a ground for its fragmentation and disruption.”64

60

See Suzan Wright, The Politicization of ‘Culture’, Anthropology Today 14 (1998), 7, 8.

61

UN Doc. E/C.12/GC/21 (note 22), para. 11; Pineschi (note 13), 35.

62

UN Doc. E/C.12/GC/21 (note 22), para. 41.

Ibid., para. 12. See also Farida Shaheed, Report of the Independent Expert in the Field of Cultural Rights, 21 March 2011, UN Doc. A/HRC/17/38 (2011), para. 6; Pineschi (note 13), 35. 63

64

Pineschi (note 13), 36.

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III. The Beneficiaries and the Nature of the Rights in Question – The Collective Right of Minorities to Their Own Cultural Life A. The First Phase: Ignoring Minority Cultures

One of the most important aspects of General Comment No. 21 is its clarification of the bearers, and consequently the nature, of the right(s) recognised, since the neglect of Article 15 (1)(a) of the ICESCR was in part at least due to its relative vagueness. The matter is of major importance for minorities and their members, who seem initially to be excluded from the possibility of participation in their own cultural life. This is definitely clear as regards Article 27 of the UDHR, for at the time of its adoption the right to participate in cultural life was understood both by the drafters of the UDHR and by the international community generally, as exclusively within the context of a ‘sole and unique’ culture, the culture of the national community.65 As Morsink puts it: The double use of the definite article the in the first paragraph is ground for suspicions: “Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” The article does not say, as it might have, that everyone has a right “to participate in the cultural life of his or her community.” This pluralistic wording would have allowed for the possibility and the likelihood that being a citizen of a certain State and participating in the cultural life of one’s community are for some people not one and the same thing. Instead Article 27 [of the UDHR] seems to assume that the ‘community’ one participates in and with one identifies culturally is the dominant one of the nation [S]tate. There is no hint here of multiculturalism or pluralism.66

The wording of the norm thus makes it reasonably clear that it was not the intention of the drafters of Article 27 of the UDHR to provide protection for minorities in particular.67 The text of Article 15 (1)(a) of the ICESCR is slightly changed in Elsa Stamatopoulou, Taking Cultural Rights Seriously: The Vision of the UN Declaration on the Rights of Indigenous Peoples, in: Alexandra Xanthaki/Stephen Allen (eds.), Reflections of the UN Declaration on the Rights of Indigenous Peoples (2011), 387, 390. 65

66 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999), 269.

Ragnar Adalsteinsson/Páll Thórhallson, Article 27, in: Gudmundur Alfredsson/Asbjørn Eide (eds.), The Universal Declaration of Human Rights – A Common Standard of Achievement (1999), 575, 580. 67

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comparison to Article 27 of the UDHR, as it does not include the phrase that identified the cultural life as that ‘of the community’. This was done, Symonides notes, because in some cases the ‘cultural life of the community’, in the singular, may be interpreted restrictively as excluding the right of minorities to participate in their own cultural life.68 But still Article 15 (1)(a) of the ICESCR does not explicitly refer to minority culture(s).69 Indeed, UNESCO’s attempts to introduce elements of cultural pluralism during the drafting discussions on the norm before the UN Commission on Human Rights (CHR), first with a proposal that Article 15 of the ICESCR include a provision guaranteeing “the free cultural development of racial and linguistic minorities,”70 and secondly by suggesting that an additional formulation be introduced recognising everyone’s right “to take part in the cultural life of the communities to which he belongs,”71 did not meet with success. The focus clearly remained on the national community.72 Thus, “Article 15 of the International Covenant on Economic, Social, and Cultural Rights appeared to continue in the tradition of the Universal Declaration of favouring cultural homogeneity over cultural diversity.”73

B. The Second Phase: Adopting a New Multiculturalist Perception in the Revised Guidelines for Reports by States Parties

The first signs of a different approach to the right to participate in cultural life, and indeed a reading of Article 15 (1)(a) of the ICESCR, by the CESCR with specific 68 Janusz Symonides, Cultural Rights: New Dimensions and Challenges, Thesaurus Acroasium XXIX (2000), 141, 147. 69 Hans Morten Haugen, Traditional Knowledge and Human Rights, The Journal of World Intellectual Property 8 (2005), 663, 673. 70 See Draft International Covenant on Human Rights and Measures of Implementation – Draft Articles on Educational and Cultural Rights submitted by the Director-General of the United Nations Educational, Scientific and Cultural Organization, 18 April 1951, UN Doc. E/CN.4/54 (1951), 3. 71 See Ana Filipa Vrdoljak, Self-Determination and Cultural Rights, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 41, 57.

Ana Filipa Vrdoljak, Minorities, Cultural Rights and the Protection of Intangible Heritage, 2005, 6, available at: http://www.esil-sedi.eu/english/pdf/Vrdoljak09-05.pdf?referer=http%3A%2F%2Fworks. bepress.com%2Fana_filipa_vrdoljak%2F11%2F (accessed on 17 October 2012). 72

73 Patrick Macklem, The Law and Politics of International Cultural Rights: E. Stamatopoulou, Cultural Rights in International Law; Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights, IJMGR 16 (2009), 481, 493.

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interest to members of minorities, could be seen first of all in the revised guidelines regarding the form and contents of the reports to be submitted by the States Parties to the Covenant under Articles 16 and 17 of the ICESCR, adopted late in 1990 (26 November–14 December 1990) by the Committee during its 5th session.74 In these guidelines the Committee asked the States Parties to provide, in the light of Article 15 of the ICESCR, information on, among other things, the “promotion of cultural identity as a factor of mutual appreciation among individuals, groups, nations and regions,”75 and “the promotion of awareness and enjoyment of the cultural heritage of national ethnic groups and minorities and of indigenous peoples.”76 More specifically, the States Parties were also asked to describe the legislative and other measures they had adopted “to realize the right of everyone to take part in the cultural life which he or she considers pertinent [emphasis added], and to manifest his or her own [emphasis added] culture.”77 The Committee thus made it clear for the first time, with these guidelines, that everyone has a right to choose which cultural life they wish to take part in, intimating that this need not necessarily be the mainstream (national) culture of the State.78 The Committee proceeded one step further in its 2008 revised guidelines, asking the States Parties in the context of their compliance with their obligations under Article 15 (1)(a) of the ICESCR to [i]ndicate the measures taken to protect cultural diversity, promote awareness of the cultural heritage of ethnic, religious or linguistic minorities and of indigenous communities, and create favourable conditions for them to preserve, develop, express and disseminate their identity, history, culture, language, traditions and customs.79

74 See CESCR, Revised General Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, 17 June 1991, UN Doc. E/C.12/1991/1 (1991), ANNEX, 19–20. 75

Ibid., 20.

76

Ibid.

77

Ibid., 19.

Athanasia Spiliopoulou Akermark, Justifications of Protection of Minorities in International Law, (1997), 192. 78

79 CESCR, Guidelines on Treaty – Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, 24 March 2009, UN Doc. E/C.12/2008/2 (2009), para. 68; Pineschi (note 13), 32.

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This final phrase has since been repeated word for word in a series of questions from the Committee to national governments.80

C. Cultural Rights Viewed by the CESCR as Collective Rights too

Specifically as regards minorities, then, the Committee adopts in the most official form in General Comment No. 21, the view that Article 15 (1)(a) of the ICESCR includes “the right of minorities [as collectivities] and of persons belonging to minorities to take part in the cultural life of society, and also to conserve, promote and develop their own culture.”81 Inherent in this right, the Committee continues, is the obligation of the States-Parties to recognise, respect and protect their minority cultures as a basic element of the identity of the States themselves. Consequently, the Committee concludes that: minorities have the right to their cultural diversity, traditions, customs, religion, forms of education, languages, communication media (press, radio, television, Internet) and other manifestations of their cultural identity and membership.82

The Committee, clearly, has emphatically embraced the approach that minorities as such, and their individual members have the right to take part in their own cultural life and not only exclusively in that of the dominant national society, as is held to have been the initial meaning of the provision, according to the intent imputed to the drafters of Article 15 (1)(a) of the ICESCR. Specifically, the Committee incorporates into the right of minorities to take part in their own cultural life all the elements that constitute the core of the minority identity (language, religion, traditions, customs) and gives their protection a strongly collective dimension, since it recognises the minorities per se, and not only their members, as beneficiaries of this right. The Committee then seems to align itself with the position that cultural rights are inher-

80 See List of Issues to be Taken up in Connection with the Consideration of the Initial Report of Cambodia, Concerning the Rights Covered by Articles 1 to 15 of the ICESCR (E/C.12/KHM/1), 8 January 2009, UN Doc. E/C.12/KHM/Q/1 (2009), para. 50; List of Issues to be Taken up in Connection with the Consideration of the Fifth Periodic Report of Colombia, Concerning Articles 1 to 15 of the ICESCR (E/C.12/COL.5), 10 June 2009, UN Doc. E/C.12/COL/Q/5 (2009), para. 42. 81

UN Doc. E/C.12/GC/21 (note 22), para. 32.

82

Ibid.

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ently collective rights83 and that collective rights not only do not undermine individual rights but are on the contrary mutually enriching and enhancing.84 In this line, the Committee explicitly recognises as actively legitimated in the exercise of these rights not only separate individuals, or individuals in association with other members of the group, but also the groups or communities themselves as such. It makes it perfectly clear in its General Comment No. 21 that “the term ‘everyone’ in the first line of Article 15 (1) of the ICESCR may denote the individual or the collective [emphasis added].”85 In other words, the Committee explains, “cultural rights may be exercised by a person a) as an individual, b) in association with others, or c) within a community or group, as such [emphasis added].”86 This is an innovative and breakthrough approach which, as regards the minority dimensions of the right, goes far beyond the classical approach of the international and regional minority texts, which grant in principle rights to the members of minorities and not to the minorities per se.87These instruments do, of course, recognise a certain collective dimension to minority protection, first of all through the possibility of the joint exercise of individual rights.88 Article 27 of the ICCPR for example recognises rights to persons belonging to minorities and not to the minorities per se.89 It provides 83 Josef Gromacki, The Protection of Language Rights in International Human Rights Law: A Proposed Draft Declaration of Linguistic Rights, Virginia Journal of International Law 32 (1992), 515, 548.

Fleur Johns, Portrait of the Artist as a White Man: The International Law of Human Rights and Aboriginal Culture, Australian Yearbook of International Law 16 (1995), 173, 173. 84

85

UN Doc. E/C.12/GC/21 (note 22), para. 9.

Ibid.; Pineschi (note 13), 38. See also the position of the UN’s independent expert in the field of cultural rights, approving the Committee’s approach, Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council, 22 March 2010, UN Doc. A/HRC/14/36 (2010), para. 10. 86

87 See Bruno de Witte, Law and Cultural Diversity: A Troublesome Relationship – Introduction, in: Yvonne Donders/Kristin Henrard/Anna Meijknecht/Sasja Tempelman (eds.), Law and Cultural Diversity, Proceedings of a Workshop, organized by the Working Group ‘Law and Cultural Diversity’ in Co-operation with the School of Human Rights Research, SIM-Special 25 (1999), 1, 4.

See Patrick Thornberry, Minorities and Europe: The Architecture of Rights, European Yearbook XLII (1994), 1, 10. 88

“Concerning the holders of the rights under Art. 27, no doubts can exist. Protection is not afforded to minority groups as such, but rather to ‘persons’ belonging to minorities.” See Christian Tomuschat, Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights, in: Rudolf Bernhardt/Wilhelm Karl Geck/Günther Jaenicke/Helmut Steinberger (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte – Festschrift für Hermann Mosler (1983), 949, 954. 89

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however for a limited ‘group orientation’ giving the individual members of a minority the choice to exercise these rights “in community with other members of their group.”90 In the same vein the HRC has pointed out in its General Comment No. 23 on Article 27 that “[a]lthough the rights protected under [A]rticle 27 are individual rights, they depend in turn on the ability of the minority group [as such] to maintain its culture, language or religion.”91 The HRC has, moreover, decided, in cases alleging infringement of the provision, that “[t]here is, however, no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights.”92 This ‘collective aspect’, as it has been termed,93 of the protection of individual minority rights, which stems from the possibility of their exercise “in community with other members of the group,” does not, however, lead to the recognition of collective rights,94 as is pointed out, for example, in the Explanatory Memorandum of the Framework Convention for the Protection of National Minorities (FCNM).95 But the “intermediate solution of the exercise ‘in community with others’ of certain rights cannot be satisfactory in cases of purely collective rights, where the group and only the group can – by the nature of the right – be the subject of a right.”96 Such rights are, for example, the cultural rights that “[…] acquire their full meaning when expressed in a collective environment […],”97 since cultural traditions and religious See Rüdiger Wolfrum, The Protection of Indigenous Peoples in International Law, Heidelberg Journal of International Law (HJIL) 59 (1999), 369, 371. 90

UN Doc. CCPR/C/21/Rev.1/Add.5 (note 51), para. 6.2. See Federico Lenzerini, Intangible Cultural Heritage: The Living Culture of Peoples, EJIL 22 (2011), 101, 115. 91

92 HRC, Chief Bernard Ominayak and Lubicon Lake Band v. Canada, Communication No. 167/ 1984, UN Doc. CCPR/C/38/D/167/1984 (1990), para. 32.1. See Dominic McGoldrick, Canadian Indians, Cultural Rights and the Human Rights Committee, ICLQ 40 (1991), 658, 664. 93 See Linos-Alexandros Sicilianos, The Protection of Minorities in Europe: Collective Aspects of Individual Rights, in: Antonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of Minorities: The Framework Convention of the Council of Europe (1997), 93 (in Greek). 94 See Rainer Hofmanm, Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems, GYIL 40 (1997), 356, 359, 379. 95 See Explanatory Memorandum on the Framework Convention for the Protection of National Minorities, Human Rights Law Journal (HRLJ) 16 (1995), 101, 102, para. 13, 103, para. 31.

Konstantinos Tsitselikis, The International and European Status for the Protection of the Linguistic Minority Rights and the Greek Legal Order (1996), 212 (in Greek). 96

Fotini Pazartzi, Minority Identity and Cultural Rights, in: Αntonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of Minorities: The Framework Convention of the Council of Europe (1997), 81, 90 (in Greek). See also Philip Vuciri Ramaga, The Group Concept in Minority Protection, HRQ 15 (1993), 579, 583. 97

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and educational institutions can be preserved only on a community basis,98 which is why it is essential that cultural minority rights be recognised and protected as collective or group rights, too.99 So also is the right to take part in cultural life, with its inherent collective elements.100 It is true that the issue of collective rights is neither unambiguous in its terminology nor uncontentious in its substance. Firstly, it should be observed that there is some terminological confusion in the literature.101 Some authors, for example, use the terms collective or group rights interchangeably,102 while others distinguish between group rights as the sum of the rights of individual members and collective rights intended for the benefit of the group as a whole.103 It could be argued, however, that this terminological distinction may from a certain point of view be seen as less substantial since “group rights and collective rights both have, in fact, a collective dimension, i.e. they both exist for the benefit of a certain organized group or a collective entity, be it minorities, groups or governments.”104 Secondly, there is a view that human rights are by definition exclusively individual, since they stem from the inherent dignity of each human being. In this context only individuals can hold human rights.105 Thus, “[t]he idea of collective human rights represents a major, and at best confusing, conceptual deviation.”106 This reducing of positive human rights to solely individual 98

Jelena Pejic, Minority Rights in International Law, HRQ 19 (1997), 666, 674.

See Bruce Robbins/Elsa Stamatopoulou, Reflections on Culture and Cultural Rights, The South Atlantic Quarterly 103 (2004), 419, 426 noting that “[s]ome of what since come to be called cultural rights – for example, the right to speak one’s language or to practice land-based religions or to protect traditional knowledge – literally make no sense for indigenous peoples or minorities unless they are understood also as group rights”. 99

See James Crawford, The Rights of Peoples: ‘Peoples’ or ‘Governments’?, in: James Crawford (ed.), The Rights of Peoples (1st ed. 1988), 55, 57. 100

101 Anna Meijknecht, Are Minorities Subjects of International Law?, in: Yvonne Donders/Kristin Henrard/Anna Meijknecht/Sasja Tempelman (eds.), Law and Cultural Diversity, Proceedings of a Workshop, organized by the Working Group ‘Law and Cultural Diversity’ in Co-operation with the School of Human Rights Research, SIM-Special 25 (1999), 95, 98, footnote 13.

See Jean-Paul Schreuder, Minority Protection within the Concept of Self-Determination, Leiden Journal of International Law 8 (1995), 53, 63. 102

103

See Douglas Sanders, Collective Rights, HRQ 13 (1991), 368, 369.

Malgosia Fitzmaurice, The New Developments Regarding the Saami Peoples of the North, IJMGR 16 (2009), 67, 137. 104

John Morijn, The Place of Cultural Rights in the WTO System, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 285, 294. 105

106 Jack Donelly, Human Rights and Group Rights, Bulletin of Australian Society of Legal Philosophy 13 (1989), 6, 8–9.

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freedoms and entitlements is, however, argued to be antithetical to human nature empirically assessed. As Wiessner unequivocally notes “[i]ndividuals feel part of a community; their birth into certain ethnic, gender and societal categories, their upbringing in certain social settings, as well as their conscious choices make them members of certain groups. Membership of a group is of fundamental importance to individuals, to their pursuit of self-realization, a key human need,”107 arguing further that [i]n order to respond holistically to human needs and aspirations, law thus needs to strive to protect both the individuals and the groups they form or are born into – communities of destiny or communities of choice. The vulnerability of individuals created the need for individual human rights; the vulnerability of groups, particularly cultures, created the need for their protection.108

In this light it has been argued that not only are individual and collective rights not always antithetical but there are several cases indeed, where they are complementary and interdependent, as “its type is necessary to preserve minority cultures, for the protection of collective rights will depend, in the first instance, upon the existence of individual rights.”109 Thirdly, an argument is made that the proclamation of collective rights may be (ab)used in order to justify violations of individual rights.110 This criticism seems to imply that individual rights are both immutable and absolute, overlooking the fact that the major contemporary human rights instruments contain provisions which limit those rights “for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”111 (the latter a collective interest). Cultural collective rights, on the other hand are not absolute either. Thus, there is always a need to strike a balance between the interests of a minority as a collective and those of the single members of the group according to the ad hoc circumstances of each case. In the Kitok Case, for example, “the HRC took Siegfried Wiessner, The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges, EJIL 22 (2011), 121, 124. 107

108

Ibid., 125.

Gillian Triggs, The Rights of ‘Peoples’ and Individual Rights: Conflict of Harmony?, in: James Crawford (ed.), The Rights of Peoples (1988), 141, 146. 109

See Marlies Galenkamp, Collective Rights, Report commissioned by the Advisory Committee on Human Rights and Foreign Policy of the Netherlands, SIM-Special 16 (1995), 53, 66. 110

111 John Claydon, Internationally Uprooted People and the Transnational Protection of Minority Culture, New York Law School Law Review 24 (1978), 125, 139.

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position in favour of the former in view of the need to maintain the economic and ecological sustainability of the particular way of life of the Sami population.”112 Furthermore, serious violations of individual human rights could be avoided by incorporating some kind of democratic constraints into the process of group decision-making, for instance by providing individuals with an effective exitoption.113 Finally, States are unwilling to recognise collective or group minority rights, lest this entail risks for their national sovereignty and territorial integrity.114 However, “[…] the protection of collective minority rights does not necessarily lead to that outcome […],” since “a minority which enjoys collective rights is unlikely to turn against the State within which it resides,” although this is not, of course, absolute.115

D. Concluding Observations on Collective Minority Cultural Rights

In conclusion, it seems that from the moment that most modern societies consist of a dominant ethnic group in control of the State which exercises cultural hegemony over an array of minority groups and this hegemony constitutes a threat to the cultural integrity of minority diversity, there is a need to recognise collective rights to minorities as a suitable mean of protecting and preserving their cultures.116 The recognition of the need to safeguard minority identity as such, through State measures for the protection of its existence and the creation of favourable conditions for its preservation and promotion,117 beginning with principle 19 of the 1989 Vienna Concluding Document of the Conference on Security and Cooperation in Europe 112

Peter Hilpold, UN Standard – Setting in the Field of Minority Rights, IJMGR 14 (2007), 181, 193.

Barbara Oomen/Sasja Tempelman, The Power of Definition, in: Yvonne Donders/Kristin Henrard/Anna Meijknecht/Sasja Tempelman (eds.), Law and Cultural Diversity, Proceedings of a Workshop, organized by the Working Group ‘Law and Cultural Diversity’ in Co-operation with the School of Human Rights Research, SIM-Special 25 (1999), 7, 26. 113

See Dominic McGoldrick, Multiculturalism and its Discontents, Human Rights Law Review 5 (2005), 27, 31. 114

115 Konstantinos Antonopoulos, Issues of Minority Rights’ Protection under the Light of Former Yugoslavia’s Dissolution, Hellenic Review of European Law (Special Issue) 21 (2001), 75, 86, 88 (in Greek).

Richard H. Thompson, Ethnic Minorities and the Case for Collective Rights, American Anthropology 99 (1997), 786, 789. 116

117 See Matthias Koenig, Institutional Change in World Polity – International Human Rights and the Construction of Collective Identities, International Sociology 23 (2008), 95, 106.

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(OSCE),118 and later with paragraph 33 of the 1990 Copenhagen Concluding Document (Copenhagen Document),119 and Article 1 (1) of the relevant UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992),120 is not unknown in international law. The Committee, then, has built upon this precedent, replying to the question of “[w]ho possesses cultural rights: individual or groups?”,121 in a fruitful, comprehensive and pluralistic manner that is realistically capable of making the provision a firm pillar for the substantive protection of minority cultures.

IV. Other Explicit References to Minority Cultural Rights in General Comment No. 21 In the aforementioned context, which recognises the right of minorities and their members to participate in their own cultural life, the General Comment also contains several other explicit references to minority cultural rights. Thus, in the frame of 118 “They [the Participating States] will protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of national minorities on their territory.” See Human Rights in the Concluding Document of the Vienna CSCE Follow-up Meeting on 15 January 1989, HRLJ 10 (1989), 270, 277. See Dimitris Christopoulos, Minority Protection: Towards a New European Approach, Balkan Forum – An International Journal of Politics, Economics and Culture 2 (1994), 155, 164 observing that “[t]he Vienna Concluding Document is the first one on a European level to mention explicitly the necessity of the recognition of collective rights”. 119 “The participating States will protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity.” See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (29 June 1990), HRLJ 11 (1990), 232; Thomas Buergenthal, The Copenhagen CSCE Meeting: A New Public Order for Europe, HRLJ 11 (1990), 217, 228. 120 “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.” See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 18 December 1992, UN Doc. A/RES/47/135 (1992). See also Bokatola Isse Omanga, The Draft Declaration on the United Nations on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, International Commission of Jurists (The Review) 46 (1991), 33, 35 arguing that “[i]t is the group as such which holds rights and no longer only the individual who make it”; Natan Lerner, The 1992 UN Declaration on Minorities, Israel Yearbook on Human Rights 23 (1993), 111, 117 noting that “[a]rticle 1 does not refer to rights of persons, but to the identity of minorities, namely a group right”. 121 Robert Winthrop, Defining a Right to Culture, and Some Alternatives, Cultural Dynamics 14 (2002), 161, 163.

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clarifying States’ obligations to fulfil122 their commitments, the Committee asks the States to take a wide range of positive measures, including financial measures, that would contribute to the realisation of the right of Article 15 (1)(a) of the ICESCR, such as: [a]dopting policies for the protection and promotion of cultural diversity […]; and measures aimed at enhancing diversity through public broadcasting in regional and minority languages;123 [p]romoting the exercise of the right of association for cultural and linguistic minorities for the development of their cultural and linguistic rights;124 [t]aking appropriate measures or programmes to support minorities or other communities […] in their efforts to preserve their culture.125

A. Policies and Measures Promoting and Protecting Minority Languages

One of the most interesting elements of this set of obligations is the taking of measures to support broadcasting in regional and minority languages, an issue that is related to respect for and safeguarding of the linguistic diversity to which the Committee ascribes particular importance and upon which it insists with pertinent questions.126 Indeed, the Committee refers many times in its Comment to linguistic rights 122 The Committee signifies that the right to take part in cultural life imposes, like all the other rights enshrined in the Covenant, upon States’ Parties three general levels of legal obligations, namely a) the obligation to respect, b) the obligation to protect, and c) the obligation to fulfil. The first of these obligations as discerned by the Committee requires states to refrain from interfering, directly or indirectly, with enjoyment of the right to take part in cultural life, the second requires them to take steps to prevent third parties from interfering in the exercise of that right, and the third requires them to take appropriate legislative, administrative, judicial, financial, promotional and other measures aimed at full realisation of that right. See Tawhida Ahmed, A Critical Appraisal of EU Governance for the Protection of Minority Rights, IJMGR 17 (2010), 265, 267. 123

UN Doc. E/C.12/GC/21 (note 22), para. 52 (a).

124

Ibid., para. 52 (c).

125

Ibid., para. 52 (f).

See List of Issues to be Taken up in Connection with the Consideration of the Fifth Periodic Report of Poland (E/C.12/POL/5) Concerning the Rights Covered by Articles 1 to 15 of the ICESCR, 8 January 2009, UN Doc. E/C.12/POL/Q/5 (2009), para. 32; List of Issues to be Taken up in Connection with the Consideration of the Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland Concerning the Rights Covered by Articles 1 to 15 of the ICESCR, 10 June 2008, UN Doc. E/C.12/GBR/Q/5 (2008), para. 34. 126

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in general127 in the form of freedom of expression in the language of one’s choice, since, as has been noted, “[…] language is not merely a conveyor belt for transmitting knowledge, but constitutes, particularly for minorities, the very content of their culture and their cultural identity.”128 Therefore, in the context of Article 15 (1)(a) of the ICESCR, the Committee frequently asks States Parties about the use of minority languages in daily life and especially in education,129 about the steps taken to preserve minority languages, the periodicals published and the radio and television shows broadcast in those languages,130 the possibility of the languages of different language groups being used in the courts and in dealings with other public authorities,131 etc.

B. Freedom of Association for Cultural and Linguistic Minorities

Another key aspect is the emphasis that the Committee lays on the significance which freedom of association has for minority protection.132 Indeed, as the European Court of Human Rights (ECtHR) has also stressed, “forming an association in order to express and promote its identity may be instrumental in helping a minority to preserve and uphold its rights.”133 It is observed, however, that the Committee refers, 127 Thus, paragraphs 15 (a) and 49 (b) refer to the right to express oneself in the language of one’s choice, paragraph 16 (b) provides for the right to seek, receive and share information on all manifestations of culture in the language of one’s choice, paragraph 49 (d) requires respect for the right of access to one’s linguistic heritage and paragraph 55 (c) entails the right to use the language of one’s choice. See UN Doc. E/C.12/GC/21 (note 22), paras. 15 (a), 49 (b), 16 (b), 49 (d) and 55 (c). 128 Antonis Bredimas, The Greek Minority in Albania and the Framework Convention of the Council of Europe, in: id., Αntonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of Minorities: The Framework Convention of the Council of Europe (1997), 185, 194 (in Greek). 129 See List of Issues to be Taken up in Connection with the Consideration of the Initial Report of Slovenia Concerning Articles 1–15 of the ICESCR, 7 June 2004, UN Doc. E/C.12/Q/SVN/1 (2004), para. 30. 130 See List of Issues to be Taken up in Connection with the Consideration of the Third Periodic Report of Austria Concerning the Rights Referred to in Articles 1–15 of the ICESCR, 14 December 2004, UN Doc. E/C.12/Q/AUT/1 (2004), paras. 33–34. 131 See List of Issues to be Taken up in Connection with the Consideration of the Second to Third Periodic Report of Belgium Concerning the Rights Covered by Articles 1–15 of the ICESCR, 10 April 2007, UN Doc. E/C.12/BEL/Q/3 (2007), para. 23.

See Giorgio Sacerdoti, New Developments in Group Consciousness and the International Protection of the Rights of Minorities, Israel Yearbook of International Law 13 (1983), 116, 140. 132

133 ECtHR, Case of Gorzelik and Others v. Poland, Judgment of 17 February 2004, RJD 2004-I, 39, para. 93.

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expressly at least, to the freedom of association only of cultural and linguistic, and not of national and religious, minorities. In any case, the incorporation into the normative field of Article 15 (1)(a) of the ICESCR of a States’ obligation to promote the right of association of minorities, is an element of major importance for “the proper functioning of democracy,”134 since “[t]he way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned.”135

C. Measures Encouraging Culturally Appropriate Education

Education is another important aspect of protection for minorities upon which the Committee lays particular weight. The right to education, particularly in one’s mother tongue, is considered a crucial right for minorities since it constitutes the foundation for the preservation of their identity.136 As in a previous Comment on the matter, the Committee stresses that education must be culturally appropriate,137 so as to enable children to develop their personality and their cultural identity and to learn and understand cultural values and practices of the communities to which they belong, as well as those of other communities and societies.138 Additionally, the Committee notes in General Comment No. 21 that the educational programmes of States Parties should respect the cultural specificities of national or ethnic, linguistic and religious minorities and incorporate in those programmes their history, knowledge and technologies, as well as their social, economic and cultural values and aspirations. They must also adopt measures and spare no effort to ensure that educational programmes for minorities are conducted on or in their own 134 See Gaetano Pentassuglia, Evolving Protection of Minority Groups: Global Challenges and the Role of International Jurisprudence, International Community Law Review 11 (2009), 185, 201.

ECtHR, Case of Sidiropoulos and Others v. Greece, Judgment of 10 July 1998, RJD 1998-IV, 19, para. 40. See Eleni Kalampakou, The Right to Freedom of Association under the Principle of Cultural Pluralism – Comment on the ECHR’s Decision Tourkiki Enosi Xanthis v. Greece, Revue Hellénique des Droits de l’ Homme 43 (2009), 849 (in Greek). 135

Hurst Hannum, Contemporary Developments in the International Protection of the Rights of Minorities, Notre Dame Law Review 66 (1991), 1431, 1441. 136

See CESCR, General Comment No 13: The Right to Education (Art. 13), 8 December 1999, UN Doc. E/C.12/1999/10 (1999), para. 50. 137

138

UN Doc. E/C.12/GC/21 (note 22), para. 26.

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language, taking into consideration the wishes expressed by communities and in the international human rights standards in this area. Educational programmes should also transmit the necessary knowledge to enable everyone to participate fully and on an equal footing in their own and in the national community.139

D. Free, Prior, and Informed Consent (FPIC) and Minorities

Another innovative element in the CESCR’s approach is the advancement of minority participatory rights in the context of the core State obligations to fulfil Article 15 (1)(a) of the ICESCR. According to the CECSR, the core obligations of the States Parties aim to ensure the satisfaction of, at the very least, the minimum essential levels of the rights recognized in the ICESCR.140 Specifically then as regards the realisation of the core obligations of Article 15 (1)(a) of the ICESCR, the Committee inter alia asks governments: [t]o allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them. In particular, States [P]arties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk [emphasis added].141

A new element then, in the Committee’s approach is the introduction of a fundamental obligation for States to gain inter alia the free, prior, informed consent of the members of a minority (and not of the minority per se) when the preservation of their cultural resources, particularly those associated with their way of life and cultural expression, is threatened.142 This is an advancement of the right of effective participation – although in the form of a State obligation – of minority members as enshrined 139 Ibid., para. 27. See also Irene J. Taafaki, Cultural Rights: A Curriculum and Pedagogy for Praxis, in: Margaret Wilson/Paul Hunt (eds.), Culture, Rights, and Cultural Rights – Perspectives from the South Pacific (2000), 103, 108.

See CESCR, General Comment No. 3: The Nature of States Parties Obligations (Art. 2, para. 1), UN Doc. E/1991/23 (1990), para. 10. 140

141

UN Doc. E/C.12/GC/21 (note 22), para. 55 (e).

See Amanda Barratt/Ashimizo Afadameh-Adeyemi, Indigenous Peoples and the Right to Culture: The Potential Significance for African Indigenous Communities of the Committee on Economic, Social and Cultural Rights’ General Comment 21, African Human Rights Law Journal 11 (2011), 560, 585. 142

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in the relevant international and regional minority norms.143 The CESCR’s approach is also in line with the most recent jurisprudence of the HRC, which in Ángela Poma Poma v. Peru adopted the view that the admissibility of measures which substantially [emphasis added] compromise or interfere with the culturally significant [emphasis added] economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent [emphasis added] of the members of the community.144

The CESCR’s approach seems also to have a rather limited field of application (only when cultural resources are seriously endangered).145 Furthermore, it is not clear who is competent to decide when such a threat to minority cultures exists.146 Notwithstanding these observations, this is a major evolution of minority participatory rights since a right to FPIC has been accorded so far to indigenous peoples alone. The UN Declaration on the Rights of Indigenous Peoples147 for example calls for the FPIC of indigenous peoples in: Article 10 in the case of relocation of indigenous communities, Article 19 when a State is adopting legislative or administrative measures that affect indigenous peoples, Article 29 (2) regarding the disposal of hazardous waste within their territories, and Article 32 (2) regarding the approval of Para. 35 of the Copenhagen Document (note119); Article 2 (3) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (note128); and Article 15 of the Framework Convention for the Protection of National Minorities, 1 February 1995, ILM 34 (1995), 351. 143

144 HRC, Ángela Poma Poma v. Peru, Communication 1457/2006, 27 March 2009, UN Doc. CCPR/C/95/D/1457/2006 (2009), para. 7.6. For a critical assessment of the decision, see Katja Göcke, The Case of Ángela Poma Poma v. Peru before the Human Rights Committee – The Concept of Free, Prior and Informed Consent and the Application of the Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights, Max Planck Yearbook of United Nations Law 14 (2010), 337. 145 This interpretation at least has been given to the analogous HRC’s view in Angela Poma Poma v. Peru Case by eminent scholars. See Gaetano Pentassuglia, Towards a Jurisprudential Articulation of Indigenous Land Rights, EJIL 22 (2011), 165, 183–184. 146 Elsa Stamatopoulou, Monitoring Cultural Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights, HRQ 34 (2012), 1170, 1185. 147 United Nations Declaration on the Rights of Indigenous Peoples, (2007), UN Doc. A/RES/61/ 295, 13 September 2007.

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any project affecting their lands or territories.148 In an analogous line the Inter-American Court of Human Rights has judged that in the case of large-scale developments or investment projects that could have a major impact within indigenous peoples’ territories, the State has the duty not only to consult with them, but also to obtain their free, prior, and informed consent.149

1. ‘Minorities’ and ‘Indigenous Peoples’ Since a right to FPIC has been accorded so far to indigenous peoples alone it would be useful to examine the similarities and differences between them and the minority groups in order to get a clear picture of the new ground that General Comment No. 21 breaks on the issue for the latter. It should be noted that while there is no generally agreed definition of the notions of ‘minority’150 and ‘indigenous peoples’151 in international law, and that while the two concepts do not coincide, they may overlap.152 This is reflected in Daes’ observation that “no definition or list of characteristics can eliminate overlaps between the concept of minority and indigenous peoples. Cases will continue to arise that defy any simple, clear-cut attempt at classification.”153 Specifically, it seems that a number of connections and commonalities exist between these two group categories, such as their numerical inferiority (in fact, most indige-

148 Tara Ward, The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law, Northwestern Journal of International Human Rights 10 (2011), 54, 58. 149 Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgement of 28 November 2007, Series C, No. 172, para. 134. 150 See Human Rights and Indigenous People, Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, Final Report by Miguel Alfonso Martinez, Special Rapporteur, 22 June 1999, UN Doc. E/CN.4/Sub.2/1999/20 (1999), para. 70. 151 See Department of Economic and Social Affairs, Workshop on Data Collection and Disaggregation for Indigenous Peoples, UN Doc. PFII/2004/WS.1/3 (2004), para. 1. 152 Alessandro Fodella, International Law and the Diversity of Indigenous Peoples, Vermont Law Review 30 (2006) 570, 572. 153 See Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, Paper by Erica-Irene A. Daes, 19 July 2000, UN Doc. E/CN.4/Sub.2/2000/10 (2000), para. 41.

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nous peoples may qualify as minorities but not all minorities are indigenous),154 their non dominant position in the societies in which they live, and their cultural distinctiveness from the majority or the dominant groups.155 At the same time it is possible to identify at least two factors, as Eide and Daes note, which have never been associated with the concept of ‘minorities’ and which are normally held to distinguish indigenous peoples from them: (i) indigenous prior settlement in a specific territory,156 and (ii) their special spiritual and material attachment to their ancestral lands and its natural resources,157 the maintenance of which is a necessary precondition for their cultural and physical integrity.158 Indeed this unique, special relationship of indigenous peoples with their traditional lands, in conjunction with their collective social structures, has led to the adoption of a distinct legal regime for the protection of their rights. Thus, while the minority instruments contain no land rights, these are core elements in the International Labour Organization (ILO) Convention No. 169 (Articles 13 to 19),159 and in the UN Declaration on the Rights of Indigenous Peoples (Articles 25 to 30).160 Furthermore, the types of rights ascribed to indigenous peoples and minorities in international law differ considerably, since indigenous rights are mostly, but not exclusively, collective rights, whereas minority rights are formulated, as has been

154 Borhan Uddin Khan/Muhammad Mahbubur Rahman, Protection of Minorities: Regimes, Norms and Issues in South Asia (2012), 16.

Ibid.; see also Minority Rights: International Standards and Guidance for Implementation, HR/ PUB/10/3 (2010), 4, available at: http://www.ohchr.org/Documents/Publications/MinorityRights_ en.pdf (accessed on 17 October 2012). 155

See Working Paper by the Chairperson – Rapporteur, Mrs. Erica-Irene A. Daes, on the Concept of ‘Indigenous Peoples’, 10 June 1996, UN Doc. E/CN.4/Sub.2/AC.4/1996/2 (1996), para. 60. 156

See Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, Paper by Asbjørn Eide, 19 July 2000, UN Doc. E/ CN.4/Sub.2/2000/10 (2000), para. 24. 157

See Amelia Cook/Jeremy Sarkin, Who is Indigenous? Indigenous Rights Globally, in Africa, and Among the San in Botswana, Tulane Journal of International and Comparative Law 18 (2009), 93, 107. 158

Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention169)’, ILM 28 (1989), 1382. See Athanasios Yupsanis, ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989–2009: An Overview, Nordic Journal of International Law 79 (2010), 433, 441–443. 159

160 Indigenous Peoples in Africa: The Forgotten Peoples? The African Commission’s Work on Indigenous Peoples in Africa, ACHPR & IWGIA (2006), 13, available at: http://www.achpr.org/files/ special-mechanisms/indigenous-populations/achpr_wgip_report_summary_version_eng.pdf (accessed on 17 October 2012).

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analysed, as rights of persons and are therefore individual rights, even if in most cases they can only be enjoyed in community with others.161

2. Concluding Thoughts on the Issue of the FPIC Minority participatory rights enshrined in the relevant instruments (para. 35 of the Copenhagen Document, Article 2 (3) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and Article 15 of the FCNM) do not explicitly refer to a right to FPIC, whereas such a right is solidly affirmed in the case of indigenous peoples where their cultural survival is at risk. As the International Law Association (ILA) has stressed, although States are not obliged to obtain the consent of indigenous peoples before engaging in whatever kind of activities which may affect them – this obligation exists any time that the lack of such a consent would translate into a violation of the rights of indigenous peoples that States are bound to guarantee and respect […]. When the essence of their cultural integrity is at significant risk, obtaining the free, prior and informed consent of the indigenous peoples concerned becomes mandatory.162

In this context General Comment No. 21 breaks new ground, not only because it recognises the minorities per se as bearers of a collective right to preserve their own cultural life but also because it introduces inter alia into the normative scope of Article 15 (1)(a) of the ICESCR a core State obligation to obtain the FPIC of minority members when the preservation of their cultural resources is at risk, thus taking minority protection beyond the lines that the existing minority instruments explicitly entail.

Report of the African Commission’s Working Group of Experts on Indigenous Populations/ Communities, ACHPR & IWGIA (2005), 97, available at: http://pro169.org/res/materials/en/ identification/ACHPR%20Report%20on%20indigenous%20populations-communities.pdf (accessed on 17 October 2012). 161

International Law Association, Rights of Indigenous Peoples, Sofia Conference (2012), 7, available at: http://www.ila-hq.org/en/committees/draft-committee-reports-sofia-2012.cfm (accessed on 17 October 2012). 162

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V. General Statements of Particular Importance to Minority Cultural Identities in General Comment No. 21 Besides the explicit references to minorities and their members, the General Comment also encompasses many statements of a more general nature which are of crucial importance to minority interests. Thus, in interpreting the notion of ‘participation’ or ‘to take part’ in cultural life the Committee stresses that it: covers in particular the right of everyone – alone, or in association with others or as a community – to act freely, to choose his or her own identity, to identify or not with one or several communities or to change that choice, to take part in the political life of society, to engage in one’s own cultural practices and to express oneself in the language of one’s choice.163

A. The Right to Self-Identification

The Committee lays emphasis, which is also evident in the repeated references to it in its Comment,164 on the right to freely choose the identity that constitutes the essential component of self-identification, which has been described as the ‘quintessence’ of minority protection.165 The right of self-identification as a right of belonging was explicitly recognised for the first time in the Copenhagen Document of the CSCE. Concretely, paragraph 32 of that document states that “[t]o belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice.”166 On the level of legally binding instruments, Article 3 (1) of the FCNM provides that “[e]very person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”167 Indeed, according to one liberal approach this 163

UN Doc. E/C.12/GC/21 (note 22), para. 15 (a); Pineschi (note 13), 36.

164

UN Doc. E/C.12/GC/21 (note 22), paras. 22, 49 (a), 55 (b).

Maria Vondikaki Telalian, The Human Dimension of CSCE, in: Stelios E. Perrakis (ed.), Les Droits des Peoples et des Minorités : Une Problématique en Mutation (1993), 243, 252 (in Greek). 165

See Alexis Heraclides, The CSCE and Minorities: The Negotiations Between the Commitments, 1972–1992, Helsinki Monitor 3 (1992), 5, 10. 166

167 See Heinrich Klebes, The Council of Europe’s Framework Convention for the Protection of National Minorities: Introduction, HRLJ 16 (1995), 92, 95.

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personal individual choice should not only not entail negative consequences but it also “[…] cannot be challenged by the [S]tate.”168

B. Recognition of Diverse Cultural Identities

The Committee, in close connection with the right to choose identity, calls on States “to recognize the existence of diverse cultural identities of individuals and communities on their territories”169 as a first and important step towards the elimination of discrimination, whether direct or indirect. This call to the States Parties to recognise the diverse cultural identities of individuals and communities within their territories can be interpreted as an indirect or even direct, depending on one’s point of view and reading of the text – instigation to recognise the minorities living within their borders. Heretofore, the view had been put forward, both within the framework of the Geneva Report of the CSCE Meeting of Experts on National Minorities170 and in the explanatory memorandum of the FCNM,171 that the existence of ethnic, cultural, linguistic or religious differences within a State does not necessarily indicate the existence of national minorities and by extension, it could be argued, of linguistic, religious, cultural or ethnic minorities. This opinion, which is supported by States like France and Greece,172 is well-founded from the legal point, to the extent that the potential beneficiaries of minority status do not want to make a claim for the official recognition of their cultural differences and indeed for their protection via ‘special’ minority rights See Maria Telalian, International Instruments for the Protection of Minorities – Current Developments, in: P. Grigoriou/A. Heraclides/P. Kazakos/C. Rozakis/M. Telalian, (eds.), Minority Issues in Europe, Working Paper Νo. 17, ΕΚΕΜ (1992), 32, 43 (in Greek). 168

169

UN Doc. E/C.12/GC/21 (note 22), para. 23.

See Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991, ILM 30 (1991), 1693, 1696, noting that “[…] not all ethnic, cultural, linguistic or religious differences lead to the creation of national minorities”. 170

171 “This provision [Art. 5] does not imply that all ethnic, cultural, linguistic or religious differences necessarily lead to the creation of minorities […].” See Explanatory Memorandum (note 95), 104, para. 43. See also Silvo Devetak, The Development of the Protection of Minorities in Europe with Special Reference to Slovenia, Journal of International Relations 3 (1996), 102, 106–107.

See for example the official position of Greece arguing that “[e]thnic, cultural, linguistic or religious differences alone did not necessarily make a group a national or ethnic minority.” See Committee on the Elimination of Racial Discrimination, Consideration of Reports, Comments, and Information Submitted by States Parties under Article 9 of the Convention: Sixteenth to Nineteenth Reports of Greece, UN Doc. CERD/C/SR.1944 (2009), para. 11. 172

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(“the minority is the claim”).173 However, to the degree that there is a claim for official recognition of and protection for the group identity, the validity of the view that the existence of cultural differences does not imply the existence of minorities can be challenged. On the one hand by the argument that “insofar as persons sharing mutual solidarity and ties of national, cultural, linguistic and religious identity are not allowed to consider themselves as belonging to a minority, this would appear to be opposed to the Copenhagen Document and Article 3 (1) of the FCNM,”174 and on the other by the fact that it is susceptible of abusive invocation, as a pretext for States to refuse recognition of minority status to individuals possessing the aforementioned ties.175 The question is particularly important, since a number of States refuse to recognise minorities within their borders,176 at best delimiting themselves (for example Turkey, Greece and Bulgaria), with a formalistic-legalistic approach: therefore only accepting the existence exclusively of the minorities that they have recognised in bi or multilateral agreements.177 In theory, almost all international law scholars agree that the existence of a minority is a matter of fact, not of law, and consequently does not depend on its recognition or otherwise by the State within which the minority group lives,178 an opinion based on the ruling of the Permanent Court of International Justice in the case See Dimitris Christopoulos, Human Rights and Minority Discourse in Greece, Contemporary Issues 63 (1997), 39, 40–42 (in Greek). 173

Stelios Perrakis, Considerations of the Modern Legal Regime for Minorities in the Light of the Framework Convention for the Protection of National Minorities: The Evolution of the Legal Framework, in: Αntonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of Minorities: The Framework Convention of the Council of Europe (1997), 57, 64 (in Greek). 174

175 See Geoff Gilbert, The Council of Europe and Minority Rights, HRQ 18 (1996), 160, 177; Stephen J. Roth, Comments on the CSCE Meeting of Experts on National Minorities and its Concluding Document, HRLJ 12 (1991), 330, 331. 176 See Dieter Kugelmann, The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity, Max Planck Yearbook of United Nations Law 11 (2007), 233, 246, referring to the ‘textbook’ examples of France and Turkey. 177 See for the official Turkish position, Note Verbale Dated 19 March 2008 from the Permanent Mission of Turkey Addressed to the Secretariat of the Human Rights Council, Annex, Turkey’s Statement on the Mandate of the Independent Expert on Minority Issues, 18 March 2008, UN Doc. A/ HRC/7/G/14 (2008). For the similar positions of Bulgaria and Greece, see Marilena Koppa, Minorities in the Post-Communist Balkans: Governmental Policies and Minorities’ Responses (1997), 32 (in Greek).

See for example Patrick Thornberry, International European Standards on Minority Rights, in: Hugh Miall (ed.), Minority Rights in Europe: The Scope for a Transnational Regime (1994), 14, 15; Geoff Gilbert, Religious Minorities and their Rights: A Problem of Approach, IJMGR 5 (1997), 97, 101–102; Francesco Capotorti, Minorities, EPIL 8 (1985), 385, 389. 178

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of the Greco-Bulgarian communities,179 and on the more recent analogous position of the HRC.180 However, as Anghie observes, “unrecognized as an entity, a minority has neither the protection nor the doctrinal foundation from which to negotiate political settlements with the [S]tate(s) to which it belongs.”181 In any case, from the moment that there exists neither an official, universally accepted definition of minority in international law182 nor a requisite minimum number of members for a minority to be established and recognised as such,183 States are free in practice to recognise or not the existence of a minority.184 Nonetheless, States “under international law have the obligation to act in ‘good faith’, which means that it cannot behave arbitrarily in this matter when there concur objective elements demonstrating the existence of a national minority on their territory.”185 It is noted that the Committee, for its part, addresses the policy of States such as France and Greece, which do not recognise the existence of minorities within their territory (except for the one officially labelled as Muslim in 179 “The existence of communities is a question of fact; it is not a question of law.” See Permanent Court of International Justice, Greco-Bulgarian Communities, Advisory Opinion of 31 July 1930, Series B No. 17, 22. See Anna Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (2001), 66.

“The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.” See UN Doc. CCPR/C/21/Rev.1/Add.5 (note 51), para. 5.2. See Bertram G. Ramcharan, The Protection of Minorities in Africa, in: Gudmundur Alfredsson/Maria Stavropoulou (eds.), Justice Pending: Indigenous Peoples and Other Good Causes – Essays in Honour of Erica – Irene A. Daes (2002), 99, 105. 180

Antony Anghie, Human Rights and Cultural Identity: New Hope for Ethnic Peace?, Harvard International Law Journal 33 (1992), 341, 346. 181

182 On the question of the definition of the concept, see Vassilios Grammaticas, The Definition of Minorities in International Law: A Problem Still Looking for a Solution, Revue Hellénique de Droit International 52 (1999), 321.

Illustrative in this context are the spectacularly divergent state views, that the UN Special Rapporteur F. Capotorti recorded in his Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, regarding the minimum numerical size necessary for a group to constitute a minority population, which range from Sweden’s view that at least 100 persons are needed to Greece’s opinion that a sizable group is required. See Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, UN Publications Sales No. E.78.XIV.1 (1979), 9, para. 38 (Sweden), para. 41 (Greece). 183

184 See Marianne van den Bosch/Willem van Genugten, International Legal Protection of Migrant Workers, National Minorities and Indigenous Peoples – Comparing Underlying Concepts, IJMGR 9 (2002) 195, 198 noting that “[t]he approach taken by the Council of Europe leads to the situation that each Party to the [Framework] Convention can decide to what minorities the Convention is applicable”.

Antonis Bredimas, The Problems in the Relations between Greece and FYROM under International Law: The Name, the National Identity and the Minority in Greece, in: Stelios Perrakis (ed.), Glances to the Contemporary Landscape of the Western Balkans (2009), 23, 42 (in Greek). 185

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conformity with the Treaty of Lausanne in the case of Greece) in the diplomatic language of the United Nations, asking governments to reconsider their position.186

VI. Locating the General Comment(s) in the Over-all Scheme of International Normativity In order to estimate the real impact that General Comment No. 21 may have in State practice, it is necessary to clarify its legal status. This is not an easy task since the location of the General Comments within the international normative scheme is far from clear. Indeed, as the ILA stresses: None of the human rights treaties explicitly confers on the relevant treaty bodies the power to adopt binding interpretations of the treaties, and the practice of at least some States suggest that this power has not been conferred implicitly, as part of the implied power that a body established by treaty is considered to possess in order to carry out the functions conferred on it by the States [P]arties.187

The view, however, that seems to have gained much currency in the international legal academia is that the General Comments “have authoritative status under international law,” as the High Court of South Africa for example has held.188 This is also 186 “The Committee urges the State Party to reconsider its position with regard to the recognition of other ethnic, religious or linguistic minorities which may exist within its territory in accordance with recognized international standards […],” see CESCR, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Greece, 7 June 2004, UN Doc. E/C.12/1/Add.97 (2004), para. 31. “Although the State party, in its third periodic report to the Human Right Committee (CCPR/C/76/ Add.7, para. 94), has declared that “France is a country in which there are no [ethnic, religious or linguistic] minorities,” it is obvious that France is characterized by great ethnic and cultural richness,”see List of Issues to be Taken up in Connection with the Consideration of the Second Periodic Report of France Concerning the Rights Covered by Articles 1 to 15 of the International Covenant on Economic, Social and Cultural Rights, 18 May 2001, UN Doc. E/C.12/Q/FRA/1 (2001), para. 28. “The Committee therefore recommends that the State party considers reviewing its position with regard to the recognition of minorities under the Constitution and recognize officially the need to protect the cultural diversity of all minority groups under the jurisdiction of the State Party, in accordance with the provisions of Article 15.” See CESCR, Concluding Observations of the Committee on Economic, Social and Cultural Rights: France, 9 June 2008, UN Doc. E/C.12/FRA/CO/3 (2008), para. 50. 187 International Law Association, International Human Rights Law and Practice, Berlin Conference (2004), 5, para. 18, available at: http://www.ila-hq.org/en/committees/index.cfm/cid/20 (accessed on 17 October 2012).

The High Court of South Africa (Witwatersrand Local Division), Residents of Bon Mansions v. Southern Metropolitan Local Council, Case No. 01/12312, 2001, para. 17, available at: http://graduate institute.ch/faculty/clapham/hrdoc/docs/SA-Bon_Vista_Mansions_Judgment.doc (accessed on 17 October 2012). 188

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implied by the jurisdiction of regional juridical and semi-juridical organs, like that of the ECtHR, which has treated General Comments as authoritative statements of law, giving them equal weight to its own precedent,189 and of the African Commission of Human and Peoples’ Rights, which is also enjoined by General Comments.190 The problem of this approach is that the precise meaning of ‘authoritative interpretation’ remains unclear. Furthermore, “there is no central legislative body, nor central judicial organ properly authorized to make definitive interpretations or arbitrate [S]tates’ obligations.”191 These observations notwithstanding, it could be argued that the UN human rights treaty bodies are ‘interpretive communities’192 possessing ‘interpretive authority’. This authority cannot be understood within a strictly rules-based construct but must be viewed as part of a wider ‘transnational legal process’: [t]his idea describes the practice of how public and private actors, nation [S]tates, international organizations, multinational enterprises, non-governmental organizations, multinational enterprises, non-governmental organizations, and individuals in domestic and international fora make, interpret, enforce and ultimately internalise rules of international law. It is essentially a process of interaction, whereby new rules of law emerge, which are interpreted, internalised and enforced. Viewed in this way, interpretation and meaning in international law is constructed collectively over-time, through a process of discourse and persuasion.193

See ECtHR, Makaratzis v. Greece, Application No. 50385/99, 20 December 2004, paras. 29, 58, available at: http://www.unhcr.org/refworld/country,,ECHR,,GRC,,4ca45e60c693,0.html (accessed on 17 October 2012); ECtHR, Öcalan v. Turkey, Application No. 46221/99, 12 March 2003, para. 61, available at: http://www.unhcr.org/refworld/country,,ECHR,,TUR,,3e71a9d84,0.html (accessed on 17 October 2012). 189

190 See African Commission on Human and Peoples’ Rights, Civil Liberties Organisation, Legal Defense Centre, Legal Defense and Assistance Project v. Nigeria, Communication No. 218/98, (2001), para. 24, available at: http://www.worldcourts.com/achpr/eng/decisions/2001.05_Civil_Liberties_ Organization_v_Nigeria.htm (accessed on 17 October 2012). 191 Conway Blake, Normative Instruments in International Human Rights Law: Locating the General Comment, Center for Human Rights and Global Justice, Working Paper Number 17, 2008, 31, available at: http://www.chrgj.org/publications/docs/wp/blake.pdf (accessed on 17 October 2012). 192 The notion of a ‘community of interpreters’, is one that has been borrowed from literary studies, and applied by lawyers to make sense of the problems of authority and interpretation in the legal sphere. In this sense, it has been used to describe the operation of a professional legal community in the process of interpreting the law.” See ibid., 34–35. 193

Ibid., 37.

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In this context, while it is commonly acknowledged that the General Comments are not legally binding,194 it is argued that the ICESCR Committee’s General Comments are not without legal significance. Some of them, at least, may be considered to be interpretations of the ICESCR. Such interpretations would seem to carry considerable weight,195 given the role of the ICESCR Committee as the supervisory organ of the ICESCR, although they are probably less authoritative than an interpretation by an international court. Some General Comments seem to go beyond interpretation and appear to be quasi-legislative in nature.196

For example, General Comment No. 15 (2002)197 spells out a right to water, a right which is not explicitly referred to in the ICESCR. In this line, the role of the General Comments in the articulation and implementation of human rights norms is undeniable, albeit not wholly uncontested.198

VII. General Conclusions Responding to urgings that it adopt a General Comment that would clarify the normative field of Article 15 (1)(a) of the ICESCR,199 the Committee has with this Comment given solid substance to the right of participation in cultural life, dragging it out of the peculiar obscurity in which it was languishing and making it of equal value and importance with the other rights enshrined in the Covenant. The interpretation given to the provision is unquestionably of major importance for the protection of See Helen Keller/Leena Grover, General Comments of the Human Rights Committee and Their Legitimacy, in: Helen Keller/Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012), 116, 129. 194

See Matthew C. R. Craven, The International Covenant on Economic, Social and Cultural Rights – A Perspective on its Development (1995), 91. 195

196 Urfan Khaliq/Robin Churchill, The Protection of Economic and Social Rights: A Particular Challenge?, in: Helen Keller/Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012), 199, 205–206.

See CESCR, General Comment No. 15 (2002), The Right to Water (Arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, UN Doc. E/C.12/ 2002/11 (2003). 197

198

Blake (note 191), 23.

See Submission of the International Commission of Jurists for the Day of Discussion on the Right to Participate in Cultural Rights Convened by the Committee on Economic, Social and Cultural Rights – Background Paper Submitted by the International Commission of Jurists, 9 May 2008, UN Doc. E/C.12/40/7 (2008), 3, para. 4. 199

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minorities, since it formally recognises the right both of minorities as collectivities and of their individual members to their own cultural life, dissenting totally from the conjectured initial intentions of the drafters of the provision and also from later readings that, given the absence of any explicit reference to minorities, interpreted this norm as entrenching a right of participation exclusively in the national cultural life of the States and not in separate minority cultures, thus promoting the idea of monoethnic societies.200 In this framework, and in conjunction with the broad conception of the meaning of culture adopted by the Committee, which diverges from the original narrow, materialistic conception of the term in the form of ‘the high arts’, the inclusion in the provision’s field of protection of a series of broadly conceived cultural rights that are crucial for the protection of minorities’ identity is particularly important. Essentially, the Committee incorporates into its Comment important elements of existing minority law and also builds on it, extending it radically at certain points, such as those concerning the recognition of collective rights. In this context its Comment is more advanced than even the corresponding General Comment No. 23 of the HRC on Article 27 of the ICCPR. Of course, one cannot overlook that the distance between the positions adopted by international treaty bodies monitoring the implementation of international human rights conventions on the interpretation of their provisions and the reality of State practice is often substantial.201 However, as regards the distance separating the practice of most States from positions such as the recognition of collective rights in General Comment No. 21, one must remember that the HRC’s reference, in its General Comment No. 23 on Article 27, to the need to take positive measures for the implementation of the rights therein enshrined was considered far ahead of its time and in the best case acceptable with reservations by certain States, while today, in legal theory at least, one rarely encounters positions that call into question the need for positive measures aimed at achieving real equality between majority and minority.202

See Athanasios Yupsanis, The Concept and Categories of Cultural Rights in International Law – Their Broad Sense and the Relevant Clauses of the International Human Rights Treaties, Syracuse Journal of International Law and Commerce 37 (2010), 207, 255–256. 200

201 See Timo Koivurova, From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to (re)Gain Their Right to Self-Determination, IJMGR 15 (2008), 1, 26. 202

See Sicilianos (note 93), 116, 119, 128.

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Furthermore, the probable significant contribution that General Comment No. 21 may make in the area of effective protection of minorities is in correlation with two other recent key developments in the framework of the ICESCR, namely: (i) the adoption of the Optional Protocol to the Covenant;203 which allows individuals and groups of individuals to submit a communication to the Committee alleging infringements of its provisions, and consequently of the provision under consideration, which – be it noted – was unsuccessfully proposed, during the preparatory works of the Protocol, to be excluded from the range of rights that the communication procedure would cover,204 and (ii) the establishment of the ‘Independent Expert in the field of Cultural Rights’; whose mission includes inter alia collaboration with governments with a view to promoting the adoption of measures at local, national, regional and international level for the protection of cultural rights.205 These developments can substantially improve the protection provided, fostering a more positive attitude towards the cultural rights of minorities within the territories of States Parties.206 Therefore, it would not perhaps be foolhardy to hazard a prediction that in a not too distant future the provision enshrined in Article 15 (1)(a) of the ICESCR could, in relation to protection of minorities, be equivalent in symbolic and practical value to that of Article 27 of the ICCPR, serving “as an important antidote to the tendency to homogenize and iron out differences and diversity.”207

203 See Art. 2 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 5 March, 2009, UN Doc. A/RES/63/117 (2009), Annex. 204 See CESCR, Report on the Fourteenth and Fifteenth Sessions (30 April–17 May 1996, 18 November–6 December 1996), Economic and Social Council, Official Records, Supplement No. 2, UN Doc. E/1997/22 E/C.12/1996/6 (1997), 99–101, paras. 24–28.

See Independent Expert in the Field of Cultural Rights, 26 March 2009, UN Doc. A/HRC/ RES/10/23 (2009), para. 9 (c). 205

206 See Marina Hadjioannou, The International Human Right to Culture: Reclamation of the Cultural Identities of Indigenous Peoples under International Law, Chapman Law Review 8 (2005), 201, 212.

See CESCR, Report of the Eighteenth and Nineteenth Sessions, (27 April–15 May 1998, 16 November–4 December 1998), Economic and Social Council, Official Records, Supplement No. 2, UN Doc. E/1999/22-E/C.12/1998/26 (1999), para. 483. 207

The Definition of a ‘Structural Problem’ in the Case-Law of the European Court of Human Rights Since 2010 MART SUSI(

ABSTRACT: The present article will review most ECtHR judgments of 2010, 2011 until August 2012 which have established a structural problem concerning a Member State or which are close to finding such a problem. The article seeks to find the common ground in these judgments and analyse the pre-conditions for defining a structural problem. Likewise the article seeks to analyse the extent of the ECtHR interference into the domestic jurisprudence or legal system of a particular Member State. Since the practice of the ECtHR regarding the establishment of structural problems is not extensive, then it may at this stage be premature to analyse the behaviour of those countries where a structural problem has been found and concrete action has been required. In the other words, how diligently the States have started to act upon the ECtHR directives and implemented legislative changes. This article also appraises the ECtHR’s case-law to assess whether it has established a consistent approach to finding a structural problem. KEYWORDS: European Court of Human Rights, Pilot-Judgment, Structural Problem, General Measures, Expansion of Authority, Interference into Domestic Legislation, Domestic Protection of Human Rights, Development of European Court of Human Rights Case-Law

I. Introduction The question whether an international court has the authority to request legislative changes from a sovereign Member State is an integral aspect of any international adjudication system. This question is clearly present in the European human rights protection system, under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention or ECHR),1 in the interpretation of the European Court of Human Rights (the Court or ECtHR ).2 Have Member (

Dr. Mart Susi holds the position of Docent of Public Law at the Law Academy of Tallinn University.

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 1

2

Further in this article the Strasbourg Court.

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States expressly authorised the ECtHR to direct them to change their laws or administrative practices (which would be close to transferring to the Strasbourg system some of their sovereignty)? If not, where does the legitimacy of the ECtHR for requesting from the Member States such changes originate? This article demonstrates, that this issue may have been of little importance even some decades ago in the overall context of the Court’s practice, but due to a variety of reasons it is now one of the major – perhaps controversial – issues surrounding the powers of the Strasbourg Court today. In the past, interference into domestic legislation was ‘soft’ and indirect starting from the 1950s when the Court became operational, whereas the Court now believes to have in its arsenal an instrument to ‘demand’ such legislative changes.3 Has the ECtHR been a gentle and sleeping giant, now awakened and starts to explore and use its full arsenal and possibility to interfere? Or have its powers been ‘upgraded’ from the initial intent of the Convention drafters? The problem has many aspects, starting from political4 – whether Europe needs to strengthen a central authority guaranteeing comparable level of human rights protection within Member States – to purely formal – whether by the virtue of membership to the ECtHR States accept that there is an international court which can request them to change their laws or administrative practices. Any international court judgment should in principle have two types of consequences: individual relief,5 and general measures, that would prevent re-occurrence of similar violations in the future. In the review of the way general measures work Lucja Miara and Victoria Prais have indicated, that they are considered on a case-by-case basis and can be very far reaching and may include amending domestic laws, introducing domestic remedies, providing training and awareness and encouraging changes in practice of administrative or judicial authorities. Miara and Prais argue, that these

3

As will be shown later in this article.

It is widely understood, that the most developed and detailed system for the protection of human rights is provided by the ECHR and its application through the case-law of the ECtHR, see Rhona K.M. Smith, International Human Rights (2007), 89. 4

5 Most commonly an international court interferes by pointing out which individual measures countries may need to take. Even empires like the (United States) US are not exempt. For example, in the LaGrand Case the International Court of Justice has expressly obligated the US to grant to fifty-one individuals who had not benefitted from consular protection “review and reconsideration of the conviction.” See International Court of Justice (ICJ), LaGrand Case (Germany v. United States of America), Judgment of 27 June 2001, ICJ Reports 2001, 466, 514.

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measures are proposed by the respondent State.6 So here the crucial element is State’s activism and consent.

II. The Evolution A. The Initial Approach

Under traditional view, the ECtHR case-law is formally limited to the concrete circumstances of the single case decided. It has been argued, that if a State refuses to accept a judgment or interpretation given in a case to which it was not a party, there are no means to force the State to accept it.7 The Court itself has already in the 1960s formulated the principle, that “national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention.”8 It has been pointed out, that traditionally when the Court determined that some aspect of national law or practice is incompatible with a provision of the Convention, this resulted in complaints by politicians and media commentators of interference into domestic affairs.9 Major textbooks in the past few decades have avoided elaborated discussions of this subject and have usually briefly stated that the Court leaves to the respondent government the choice of both individual and general measures after a judgment establishing a Convention violation.10 As for the judicial action taken by the Member States, some academics have pointed to the impact of the judgments on general

6 Lucja Miara/Victoria Prais, The Role of Civil Society in the Execution of Judgments of the European Court of Human Rights, European Human Rights Law Review (EHRLR) 2012, 529, 530.

See for the erga omnes effect of the ECtHR interpretations Georg Ress, The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order, Texas International Law Journal 40 (2005), 359, 374; Saša Beljin, Bundesverfassungsgericht on the Status of the European Convention of Human Rights and ECHR Decisions in the German Legal Order, Decision of 14 October 2004, European Constitutional Law Review 1 (2005), 553, 558 et seq. 7

8

ECtHR, Belgian Linguistics v. Belgium, Judgment of 23 July 1968, Series A, No. 6, 31.

David Harris/Michael O’Boyle/Colin Warbrick, Law of the European Convention on Human Rights (1995), vi. 9

10 See further Arthur Henry Robertson/John Graham Merrills, Human Rights in Europe (3rd ed. 1996), 310–315.

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measures taken in a Member State, but have not elaborated on this.11 It can be understood from these authors whose goal is to provide a comprehensive overview of the Strasbourg system, that the measures are a result of voluntary action on behalf of the respondent governments, since Member States do not have the obligation to change their laws as part of the general measures.12 At least for almost 50 years – from the time when the Court was established – there has been a dogmatic proposition that the ECtHR does not have the power to nullify national legislation or national decisions.13 Even in 2005 it has been argued, that the Court takes “a reactive rather than a proactive stance, deciding post hoc whether a certain national measure is compatible with the Convention, rather than stating in advance exactly which requirements the Convention entails.”14 The reluctance of the Court to order remedial measures other than compensatory has also been noted.15 If respondent governments through the implementation of the general measures need to adopt actions plans, which can be criticised for their non-binding nature.16

B. The Impact of Pilot-Judgments

Legislative action on behalf of the Member States was until recently understood as a measure which was brought about by the respondent government itself in cooperation with the Council of Ministers. The Court itself did not request a specific

11 For example the following citation from the first page of a preface of a major European human rights law textbook: “[…] States have, in response to the judgments of the Strasbourg Court, reformed police procedures, penal institutions, child welfare practices, administrative agencies, judicial processes, labour relations, morals legislation, and many other important public mattes.” Mark W. Janis/Richard S. Kay/ Anthony W. Bradley, European Human Rights Law (2nd ed. 2000), vii. 12

Ibid., 484–488.

Janneke Gerards, Judicial Deliberations in the European Court of Human Rights, East European Human Rights Review 17 (2011), 1, 19. 13

Ibid., 35. With reference to ECtHR, Hirst v. UK, Judgment of 06 October 2005, RJD 2005-IX, 187, para. 84. 14

Costas Paraskeva, Returning the Protection of Human Rights Where They Belong, At Home, International Journal of Human Rights (IJHR) 12 (2008), 415, 431. 15

16 Maria Suchkova, An analysis of the institutional arrangements within the Council of Europe and within certain Member States for securing the enforcement of judgments, EHRLR 2011, 451.

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general measure.17 For example, Scheinin argues that “[…] the necessary legislative or other measures to be taken by the State in question in order to prevent further violations of the ECHR must be derived from the reasoning of the Court.”18 In the mid1990s another major textbook argued, that “[…] constant refusal by the Court to widen its jurisdiction to embrace the making of consequential orders has been re-affirmed in more than 30 judgments.”19 But even without the instrument of direct interference into the laws of Member States, there is no doubt that the Strasbourg jurisprudence has been immensely successful. In 1997, for example, Helfer and Slaughter argued that supranational adjudication is a remarkable success in Europe – with reference to the case-law of the ECtHR, and that stakes are usually high at adjudication above the Nation-State level.20 The judgments of the ECtHR in the first place have a ‘declarative’ nature. Legal discourse has emphasised that unlike other regional human rights protection systems and international courts the ECtHR cannot oblige the Member States to change their laws.21 Legislative changes may have occurred and did occur as a result of the ECtHR judgments, but these were initiated by the respondent State in question. The element of voluntary action was always present. But legal realities in Europe are different now. Today the ECtHR has in its ‘arsenal’ the capacity to adopt ‘pilot-judgments’. The ECtHR has assumed this right itself by applying Convention Articles 122 and 4623 together, as no additional Protocols has been passed which expressis verbis would give to the ECtHR this authority for adopting pilot-judgments since the adoption of the Convention. The ECtHR passes a 17

Ibid., 458.

Martin Scheinin, International Mechanisms and Procedures for Implementation, in: Raja Hanski/ Markku Suksi (eds.), An Introduction to the International Protection of Human Rights: A Textbook (1999), 429, 443. 18

19

Harris/O’Boyle/Warbrick (note 9), 700.

Laurence R. Heifer/Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, Yale Law Review 107 (1997), 273, 273. 20

21 Darren Hawkins/Wade Jacoby, Agent Permeability, Principal Delegation and the European Court of Human Rights, Review of International Organizations 3 (2008), 1. 22 According to Article 1 of the ECHR each Member State undertakes to guarantee to anyone under its jurisdiction the rights and freedoms provided in the Convention. 23 According to Article 46 of the ECHR, Member States have are obligated to abide by the ECtHR judgments.

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pilot-judgment when it finds a structural problem in the respondent State either in connection with a wording of a law or legal provision or through their application in administrative or court practice.24 This practice can be established if there already have been submitted to the ECtHR a considerable number of individual complaints on similar matter or if the submission of such complaints is highly probable due to the nature of the situation.25 Together with the principle of pilot-judgment, a new direction has opened up in the jurisprudence of the ECtHR that necessarily does not lead to the adoption of a pilot-judgment. This direction seeks to identify problems in the legal system or in administrative or court practice of a structural nature of the Member State and gives guidance for resolving the problem, sometimes accompanied with concrete conditions. These conditions may be quite specific and contain the requirement to change laws or adopt new legal regulations. This change itself is sometimes referred to as a structural change in the ECtHR jurisprudence.26

C. Search for Reasons for the Approach to Identify a Structural Problem

It is important for ECtHR jurisprudence that the reasons for this new development be established. In looking for context, one can notice that comparable situation of ‘notice but not punish’ may have existed around the other European regional court – the European Court of Justice (ECJ). It has been put forward that in the

24 For context see Steven D. Roper/Lillian A. Barrie, Judgments of the European Court of Human Rights: A Test Case for Enforcement and Managerial Theories of State Compliance, Annual Meeting of the American Political Science Association, 1 April 2011, available at: http://www.stevendroper. com/Roper%20and%20Barria%20APSA%20Paper.pdf (accessed on 10 February 2013). 25 For the Court’s own explanation on the pilot-judgment procedure see further the Information note issues by the Court’s registrar, available at: http://www.echr.coe.int/NR/rdonlyres/DF4E845677B3-4E67-8944-B908143A7E2C/0/Information_Note_on_the_PJP_for_Website.pdf (accessed on 27 March 2013).

Laurence R. Heifer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Court of Human Rights Regime, European Journal of International Law (EJIL) 19 (2008), 125. 26

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1960s and 1970s the ECJ made “doctrinally important rulings […], but […]refrained from applying those rulings in ways that provoked controversy.”27 The theoretical roots of this ‘structural change’ are complex.28 There are many explanations. It has been argued that the ECtHR can be viewed as a semi-constitutional court.29 As more and more national courts pay attention to human and fundamental rights protection, it is important for the supranational court to demonstrate its independence from national political authorities and secure its position of supreme authority in the field of fundamental rights litigation.30 A former judge of the Court has indicated that the ECtHR itself needs to pay more attention to general criteria when deciding individual cases.31 In this context, pilot-judgments are a tool to overcome the ‘problem’ of case-by-case judgments. The finding of a structural problem is an instrument leading to pilot-judgments in similar cases.32 Some scholars have argued that a solution for international law enforcement cannot be simply resolved by the courts, but political action is needed.33 Several sub-questions can emerge related to the very essence of a nation’s self-determination. For example,

Karen J. Alter/Laurence R. Helfer/Osvaldo Saldias, Transplanting the European Court of Justice: The Experience of the Andean Tribunal of Justice, The American Journal of Comparative Law (AJCL) 60 (2012), 629, 630. 27

28 The idea that an international court can interfere into domestic legislation – at least in the European continent – is no longer theoretical, but practical possibility. Proceedings at the ECJ often concern the issue if a Member State has correctly adopted an EU directive. See Bruno de Witte, New Institutions for Promoting Equality in Europe: Legal Transfers, National Bricolage and European Governance, AJCL 60 (2012), 49. 29 Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights?, Human Rights Law Journal 23 (2002), 161; Steven Greer, The European Convention on Human Rights Achievements, Problems and Prospects (2006), 172 et seq. 30

Heifer/Slaughter (note 20), 313 et seq.

31

Wildhaber (note 29), 164.

32

Miara/Prais (note 6), 530.

Oona A. Hathaway/Sabria McElroy/Sara Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, Yale Journal of International Law 27 (2012), 51, 106. It may be interesting in this context to note, that political action was clearly visible at the time when former socialist bloc countries wished to join the Council of Europe. The countries had to go through the compatibility study of their national legislation and implement changes recommended by an exert group prior to being admitted into the Council. See for context Martins Mits, European Convention on Human Rights in Latvia: Impact on Legal Doctrine and Application of Legal Norms (2012), 70 et seq. 33

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if one takes the view that the principle of nomination dei34 is present in national constitutional jurisdiction, it seems convincing that at least in certain spheres the powers of the ECtHR to demand national legislative changes have to stop. Naturally one cannot overlook the matter of workload. The Court had made over 15,000 judgments on the merits,35 which cover more or less most of the areas understood as human rights – even if to use a wide interpretation. The principles formulated by the Court aspire to become a source of inspiration not only for domestic courts of Member States, but have universal aspirations as well. Still there are also negative sides, since one of the main challenges facing the Court in the new millennium is the rapidly escalating number of individual applications. Even to the neutral observer it is obvious, that if more than 150,000 applications36 line up to reach the table of 47 judges – and the number of potential applicants is over 800 million (including the population of the Council of Europe Member States and excluding legal entities),37 then the capability of the ECtHR to rapidly resolve individual applications and guarantee the protective umbrella of the Convention either is seriously paralysed or can be achieved after unreasonable delays. The role of the ECtHR jurisprudence in shaping the case-law of Member States’ courts is not within the ambit of this article.38 At the same time, it is also beyond 34 Michael Silagi, The Preamble of the German Grundgesetz – Constitutional Status and Importance of Preambles in German Law, Acta Juridica Hungarica 52 (2011), 54, 62.

The data can be accessed through the Court’s HUDOC database, available via: http://www. echr.coe.int/ECHR/EN/Header/Case-Law/Decisions+and+judgments/HUDOC+database/ (accessed on 27 March 2013). 35

36 See for reference the speech of the Human Rights Commissioner of the Council of Europe Mr. Thomas Hammarberg in Strasbourg on the occasion of opening of the new season on 27 January 2012. ECtHR, Speech of Thomas Hammarberg, 27 January 2012, available via: www.echr.coe.int (accessed on 10 February 2013).

For reference on the number of individuals under the Council of Europe jurisdiction, see any Council’s recent informational materials available via: http://hub.coe.int/(accessed on 4 April 2013). 37

38 It may be interesting to note, that the direction to expand the binding powers of the Court upon Member States – although on a different scale and impact – has been noted about the application interim measures. It has been noted, that when in the early 1990s the interim measures under rule No. 39 did not have a legally binding effect, in the recent years the Court is considering these measures as legally binding and applying them to new areas of human rights (originally the interim measures concerned potential violations of the right to life or prohibition of torture), such as individual liberty and rights of the child. This has been brought about through the dynamic and evolutive nature of the Court’s case-law and by interpreting the Convention as a living instrument. In the other words, the Court has expanded its powers by merely looking at the needs of the European society and re-organizing its arsenal by assuming this more rigorous approach. See Catharina Harby, The Changing Nature of interim Measures before the European Court of Human Rights, EHRLR 2010, 73.

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doubt that Member States look at the principles formulated by ECtHR when writing new laws. This may be a phenomenon that has developed through the passage of time and there can be a discussion whether in some instances national legislature should pay more attention to its country’s international obligations assumed via membership in the ECHR, but the linkage is obvious.39 Even so, can an international court interfere in the domestic matters of Member States? And if it can or does, where are the limits? There is a difference between establishing a violation of some higher value or right due to the wording of a legal norm or even due to the absence of some legal regulation, and prescribing the type of legal regulation required – even perhaps in quite detailed fashion. The first describes what the national constitutional courts are able to do and the latter is what they cannot do. It has been argued, that since after the passage of the Treaty of Lisbon40 the Court of Justice of the European Union is to be given a chance to declare provisions of European Union (EU) law incompatible with the Convention, the ECtHR should welcome this development because it enables the redirection of some of its docket back to national constitutional courts.41 As a starting point, the knowledge that although human rights violations in individual cases often are related to the state of normative regulation in the respective country and the Court may have even pointed to this shortcoming, the ECtHR judgments until recently upheld the principle of subsidiarity and declarative nature. The Court left if for the judgment’s implementation phase and for the respondent government itself to formulate and implement necessary legislative changes. The situation has now changed and the Court sometimes requests legislative changes if it has found a structural problem in a given country. The reasons for this change are complex, but were not caused by major changes in the documents or agreements defining the Court’s powers. The most evident explanation is the most simple – the need to combat the increasing workload of the international court. Yet there is For example, a judge of the High Court of Northern Ireland has argued that there is a general acknowledgement that the decisions of the Strasbourg Court have had a significant impact on the constitutional traditions of the Contracting Parties. See Bernard McCloskey, Human Rights, Governments and Judicial Independence, Human Rights Law Review 2012, 479, 482. 39

40 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007. 41 Adam Weiss, EU Accession to the European Convention on Human Process: The State of Play and the Added Value for Victims of Human Rights Violations in Europe, EHRLR 2012, 391, 394.

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another simple explanation. Can it be that the implementation of general measures via the supervision of the Committee of Ministers is simply not an effective method to guarantee human rights protection and avoid similar violations in the future?

III. The Definition of a Structural Problem in ECtHR Jurisprudence A. Earlier ECtHR Judgments Before 2010

According to Article 1 of the ECHR, Member States guarantee to anyone under their jurisdiction the rights and freedoms set forth in the Convention provisions. Although this formulation has not been amended, this obligation also applies to the additional rights and freedoms set forth in the Protocols to the Convention.42 According to Convention Article 46, Member States are obligated to follow the ECtHR judgments on the merits they are party to. The ECtHR interprets this obligation to have two aspects. Firstly, there is a need to apply individual measures – either to eliminate the violation or compensate for damages. Secondly, this obligation also entails the need to apply general measures to avoid repetition of similar violations towards others.43 The ECtHR’s jurisprudence is consistent in obliging the Member State to act responsibly to the problems found in a judgment on the merits – which means to apply remedial measures or compensate the situation of others in similar situations with the individual who brought the application to the ECtHR.44 In its 12 May 2004 resolution the Committee of Ministers of the Council of Europe requested that the ECtHR, in its future judgments, to point out areas where a systemic problem has led to a violation of the Convention or its Protocols and detail The Court does not make a distinction in its case-law between the main text and the Protocols from this aspect. See for example a judgment, where the Court indicated that the obligation to provide protection of property rights guaranteed under Protocol 1 article 1 emerged after the ratification of the Convention and its protocols. ECtHR, Dragoljub Kecman v. Serbia, Decision of 5 February 2013, Application No. 10968/04, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 42

43 Id., Sürmeli v. Germany, Judgment of 8 June 2006, RJD 2006-VII, 227, para. 137; id., Broniowski v. Poland, Judgment of 22 June 2004, RJD 2004-V, 1, para. 192. 44

Id., Scozzari and Giunta v. Italy, Judgment of 13 July 2000, RJD 2000-VIII, 471, para. 249.

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the source of this systemic problem.45 The request of the Committee emphasised that the mapping of a systemic problem is especially of importance if the escalation of similar applications to the ECtHR is to be expected in the future. The respondent government should receive assistance from the ECtHR to make choices for resolving the problem. Prior to this resolution, the 43rd Plenary Session of the judges of the ECtHR on 12 September 2003 passed a statement, where it emphasised the importance of applying the pilot-judgment method in the event where a systemic or structural problem was detected in the Member State.46 Thereafter not a year passed before the Grand Chamber of the ECtHR deliberated on Broniowski v. Poland47 and for the first time in the ECtHR case-law, defined the essence of a systemic problem within the meaning of the Convention. The case delineated that a Member State has a systemic problem in its legislation or administrative practice when the shortcomings of the judicial system affect a whole group of individuals, whose rights and freedoms set forward in the Convention have not been provided and if such a shortcoming of the domestic legal system or its application by the domestic institutions can lead to many substantiated complaints to the ECtHR.48 In this case the ECtHR had found shortcomings in the Polish legislation due to restrictions applied to the owners of houses to increase rent – this situation concerned around 100,000 owners and between 600,000 to 900,000 tenants, which constituted around 5.2 % of Polish rental market. Although the ECtHR in this judgment refers only to a ‘systemic problem’, then after some years the term ‘structural problem’ is added to the Court’s vocabulary – in the Hutten-Czapka v. Poland49 judgment. To understand the significance of these two ECtHR judgments, it should be pointed out that the Court did not only identify the problem, but also referred the problem, thus obliging the Member State to resolve this problem as part of the general measures. For 45 Council of Europe, Resolution Res(2004)3, 12 May 2004, available at: https://wcd.coe.int/ ViewDoc.jsp?id=743257&Lang=fr (accessed on 10 February 2013). 46 ECtHR, Position Paper on proposals for reform of the European Convention on Human Rights and other measures as set out in the report of the Steering Committee for Human Rights of 4 April 2003, CDDH (2003) 006 final (the Position Paper was unanimously adopted by the Court at its 43rd Plenary Administrative Session on 12 September 2003), available at: http://www.coe.int/t/dghl/standard setting/cddh/Interim_Activity_Reports/2003_PR_en.pdf (accessed on 4 April 2013). 47

Id., Broniowski v. Poland (note 43).

48

Ibid., para. 189.

49

Id., Hutten-Czapska v. Poland, Judgment of 19 June 2006, RJD 2006-VIII, 57, para. 233.

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example, in Hutten-Czapka judgment, it is noted that the violation was due to the systemic problem in the domestic legislation, which imposed restrictions to the owners for setting the rental fees, and due to the absence of a mechanism for receiving compensation for the expenses made for the upkeep of the property.50 In the same judgment the ECtHR obligated the Polish government to end this situation and guarantee via suitable legislative and other measures a just balance between the lawful interests of the owners and the public interest through protecting the interests of the tenants.51 However, no deadline was set for Poland to accomplish this task, nor did the ECtHR refer to any specific measures. Thus the obligation remained vague. In Yuriy Nikolayevich v. Ukraine52 the ECtHR once again set forth the criteria for making a pilot-judgment. The judgment highlights the repetitive and consistent nature of the structural problem and its effect towards many individuals.53 Although the Ukrainian government raised an objection that the ECtHR had no authority to interfere in the legislative system of a Member State, the ECtHR rejected this objection with reference to Article 19 of the ECHR, which tasks the ECtHR to ensure that Member States observe the rights and freedoms guaranteed by the Convention.54 Earlier the ECtHR had not considered it possible to interfere into the legal system or administrative or court practice of Member States through general measures; in contrast, the ECtHR presently assumes this possibility from the Convention Article 19, thereby avoiding the unnecessary repetition of reaching the same conclusions in a large number of judgments.55 The rhetoric about structural problems and the possibility to require general measures including legislative changes appeared in ECtHR case-law a bit less than ten years ago.56 The approach of finding a structural problem and then obliging the States 50

Ibid.

51

Ibid.

Id., Yuriy Nikolayevich v. Ukraine, Judgment of 15 October 2009, Application No. 45450/04, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 52

53

Ibid., para. 81.

Art. 19 (1) of the ECHR “[to] ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as ‘the Court’”. 54

55

ECtHR, Hutten-Czapska v. Poland (note 49), para. 82.

56

Starting from the Broniowski v. Poland judgment (note 43).

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to start changing its legislation is still more of an exception or ‘judicial curiosity’. This is mainly because of the uncertainty of knowing if and when the Court will use this approach. Clear criteria are absent. An applicant cannot count on the ECtHR to find a structural problem. There also appears some inconsistency – on the basis of the first respective ECtHR judgments and Council documents – whether the finding of a structural problem is tied to the submission of analogous complaints or the availability of judgments in analogous matters, and or whether a structural problem in a Member State’s laws, court or administrative practice is not tied to it, to the extent that the Court has had a chance to express itself upon the respective matter.

B. The Determination of a Structural Problem in ECHR Judgments 2010–2011

Although it is not possible to speak of clear categories of cases, the headings below indicate the variety of approaches to a structural problem in a Member State.

1. The Maximal Usage of the ECtHR Arsenal – Rumpf v. Germany Rumpf v. Germany57 is the only decision in the interval of 2010 and 2011 where the ECtHR detected a structural problem and instituted a deadline for resolving this problem by applying appropriate general measures. In this judgment from September 2010, the ECtHR concluded that Germany did not have an effective domestic remedy against unreasonably lengthy proceedings. The Court indicated that during the time period of 1959 to 2009 it had made 40 judgments on merits relating to Germany on the matter of unreasonably lengthy proceedings, which accounted for around 50 % of the total number of judgments on merits concerning Germany in general.58 At the time of the Rumpf judgment there were thirteen individual applications pending at the ECtHR, which entirely or partially sought to establish a similar violation. Having analysed the circumstances of the case the ECtHR concluded that the violation was not caused by an isolated ‘incident’ or 57

Id., Rumpf v. Germany, Judgment of 2 September 2010, Application No. 46344/06.

58

Ibid., para. 53.

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the sequence of events, but rather from a legal system incompatible with the Convention principles.59 Although the reasons put forward by the ECtHR are defined as pre-conditions for making a pilot-judgment and finding a structural problem,60 the ECtHR is mistaken in one factual matter – the percentage of cases concerning the unreasonable length of proceedings against Germany. It is erroneous that around 50 % of the judgments against Germany related to the question about unreasonable length of proceedings. At the time of the judgment, the Human Rights Documentation61 database contained about 200 judgments on merits relating to Germany. Forty out of two hundred is not 50 %, but 20 %. And this factual error does not change the principal justifications: firstly, the pre-condition for a pilot-judgment and establishing a structural problem are a number of ECtHR judgments and pending applications from the same country on a similar issue; and secondly, the ECtHR had concluded that the violation emanated from a certain feature of the State’s legal system, capable of affecting a large number of individuals.62 This judgment does not give a clear definition of the terms systemic and structural. In the judgment, under the heading “adoption of measures to remedy the systemic problems,”63 the Court gave a directive to the German government to set up within one year from the date of the judgment becoming final an effective remedy or combination of remedies, which guarantee to affected individuals the possibility to submit a complaint about the unreasonable length of proceedings and receive adequate compensation. This remedy or combination or remedies need to comply – both in theory and practice – with the criteria set by ECtHR case-law.64 At the same time, the ECtHR also employs the term ‘structural’ – referring to the probability of many individuals being victims of similar violations. Therefore the usage of these two terms – systemic and structural – is not clear. The Court uses them in parallel to denote the same situation, 59

Ibid., para. 70.

60

The Court provides the reasons within the judgment see: ibid., paras. 64–70.

Human Rights Documentation database is available via: www.echr.coe.int (accessed on 10 February 2013). 61

62

ECtHR, Rumpf v. Germany (note 57), para. 74.

63

Id., Hutten-Czapska v. Poland (note 49), paras. 71–73.

As a remark it can be asked, how can it be possible at the time of creating a remedy to guarantee its practical effectiveness, since the influence can only be revealed during its application. 64

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but does not indicate that they are interchangeable. The judgment also mandated the German government to create an effective remedy, but this is done without resorting to use the term structural problem – again the ECtHR refers to “a practice incompatible with the Convention.”65 In this judgment the Court employed the maximal arsenal of terminology and instruments in finding a systemic or structural problem. The Court defines the nature of the problem, its origin, and then gives to the respondent State directives for resolving the problem. The obligation is set forth within the judgment. Yet there are many unclear pieces even in this judgment – when is a problem structural and when is it systemic; is a “practice incompatible with the Convention” not a systemic or structural problem; can a structural problem exist without there being a noticeable number of applications to the Court?

2. Referral to General Domestic Measures without First Establishing a Structural Problem During the period of 2010 to 2011, the ECtHR made judgments where it stops short of establishing a structural problem, but nevertheless considered it justified to give directives to the respondent government for applying certain general measures. The nature of these directives is not of imperative, but rather suggestive. The judgment of M.S.S. v. Belgium and Greece66 is one of the most comprehensive and lengthy cases in 2011. The Grand Chamber dealt with the question about the review of the applications for asylum and pointed to structural problems apparent in the practice of Greek officials when deciding upon the applications of the asylum seekers.67 The problem concerned thousands. In applying Article 46 of the ECHR the Court did not refer to a systemic or structural problem. The Court adopted a softer approach, which was limited to noting. Although the Court’s judgment was 65

ECtHR, Hutten-Czapska v. Poland (note 49).

Id., M.S.S. v. Belgium and Greece, Judgment of 21 January 2011, Application No. 30696/09, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 66

67 Ibid., para. 300. The Court gives a list of problems in Greece’s administrative capabilities to handle expeditiously the applications for asylum.

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mainly declarative, in certain situations it can point out to the respondent State the possible measure needed to put an end to the violation.68 The Court uses conditional speech – by referring to measures that ‘could’ be used to rectify the situation.69 The Court also speaks of the possibility to refer to a concrete measure in the context of assisting the government to terminate a violation, which is often of a ‘systemic’ nature.70 This can lead one to conclude, that although in the midst of analysing an individual application the Court can distinguish certain structural issues in the legal system or court or administrative practice of the respondent country. There is still a long way to establishing this as a structural problem in the context of Article 46 of the ECHR and even a longer way to reach a judgment containing an obligation for the government to end this violation via legislative changes. Although the Court itself does not refer to these aspects in its judgment, one can assume that one of the reasons for not establishing a structural problem is the relatively small number of ECtHR judgments or pending applications suggesting a similar violation. Another assumption is that the violation concerned shortcomings in the administrative procedure of the respondent country. Therefore a question arises, whether the notion of a ‘structural’ problem includes as a compulsory element a shortcoming in the legislative system of the respondent State? These considerations again indicate that the case-law is not clear. If a structural problem in the view of the Court is only related to the state of legislation, then it should be pointed out – since the “practice incompatible with the Convention” can mean both legislative shortcomings or the malfunctioning of the administrative or court systems or all of the former.

Similar wording ECtHR, Popov v. Russia, Judgment of 13 July 2006, Application No. 26853/04, para. 263. In certain situations the Court has used wording, that the circumstances leave it no choice when suggesting the appropriate measure – for example ECtHR, Assanidzé v. Georgia, Judgment of 8 April 2004, RJD 2004-II, para. 198, where the Court issued a directive to the Georgian government for the immediate release of Mr. Assanidzé’s. 68

69

ECtHR, Hutten-Czapska v. Poland (note 50), para. 399.

70

Ibid.

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3. Setting a Deadline for the Measures – Kharchenko v. Ukraine71 In this judgment the ECtHR established violations of the right for liberty. When applying Article 46 of the ECHR the Court notes that although in theory its task is not to determine via which measures the respondent State can fulfil its obligations under the Convention, the Court stated that its role nevertheless is to ‘assist’ for the quick elimination of shortcomings which have become apparent in the national human rights protection system.72 The ECtHR is of the opinion that it has detected a problem of structural nature that can be resolved via legislative reform and improvements of the administrative practices.73 The nature of the problem is in the legal vacuum, where the legal basis for an accused pre-trial detention disappears after the case is sent to the court and before the judge issues a ruling to submit the accused to the criminal court proceedings. Likewise the structural problem is in the practice of the courts to substantiate the need for an accused detention by the mere existence of a ‘suspicion’ – which according to ECtHR’s case-law after certain passage of time is not sufficient. Likewise the structural problem can be in the refusal of the national courts to review once again the appeals to control the reasons for detention, if such appeals have gone through the judicial mechanism before. According to the ECtHR, the law does not set formal conditions for submission of these appeals and does not oblige the courts to resolve them on the merits.74 The ECtHR found analogous violations concerning Ukraine ‘often’ and ‘repeatedly’. At the same time, there is no referral to the numbers of such judgments or to their proportion to the total number of judgments concerning Ukraine on the merits. Nor is there indication of how many similar applications were pending. The Court mandated Ukraine to co-operate with the Committee of Ministers and determine the best ways for resolving the problem. Furthermore, the Court asked the government to submit within six months of the final ruling, a strategy for resolving the problems. It is not apparent from the judgment, on which level and of what binding Id., Kharchenko v. Ukraine, Judgment of 10 February 2011, Application No. 40107/02, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 71

72

Ibid., para. 97.

73

Ibid., para. 101.

74

Ibid., paras. 98–100.

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force this strategy needs to be adopted. At the same time, the decision contains a referral to the fact that the Court has established the structural problem and placed certain obligations upon the government under Article 46 of the ECHR. The question referred to earlier – whether a structural problem means only a legislative shortcoming – remains unanswered here. It also can be asked, that if the role of the Court under Article 46 of the ECHR is to assist the respondent governments in the quick elimination of shortcomings in the national human rights systems, then why is this role assumed selectively?

4. Structural Problem in Poland – Requesting General Measures In Raducki v. Poland75 the Court established a violation of Article 5 (3) of the ECHR because of the unreasonable length of the applicant’s pre-trial detention76 (five years, three months and seventeen days) and because the reasons for the detention were not sufficient and relevant. When applying Article 46 of the ECHR, the Court noted that the violation was caused by shortcomings in Polish legal system, since the courts extended the detention easily and without good reasons. The Court opined that this shortcoming was of a serious nature and could affect in the future an unlimited number of individuals.77 The Court went on to say that Poland needed to apply measures to remedy this situation.78 There is no numerical data about similar judgments or about their proportion in the ECtHR jurisprudence relating to Poland. The Court limits its explanation with the notion, that it had made ‘several’ analogous judgments regarding Poland and that it had ‘several’ analogous applications pending.79 The decision, however, is silent about this structural problem.

Id., Raducki v. Poland, Judgment of 22 February 2011, Application No. 10274/08, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 75

According to the ECtHR consistent case-law the pre-trial detention period also includes the time of court proceedings in the first instance court before the judgment is made. 76

77

ECtHR, Kharchenko v. Ukraine (note 71), para. 58.

78

Ibid., para. 59.

79

Ibid., para. 58.

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Therefore based on this judgment one can argue, that there is no clarity about the exact grounds for establishing a structural problem in a given case. The reasons behind the ECtHR’s decision in reaching the detailed requirements for the measures to improve the situation in the respondent State are not specifically mentioned. Perhaps it is a mere grammatical consideration, that in this judgment the ECtHR does not address the need to resolve a ‘problem’, but speaks of a ‘situation’ – having, however, established a structural ‘problem’ previously in the judgment. In Boguslaw Krawczak v. Poland80 the finding of a violation pursuant to Article 5 (3) of the ECHR was likewise due to insufficient reasons for extension of the applicant’s detention – they were neither relevant nor sufficient for Convention purposes. The judgment also contains a short passage applying Article 46 of the ECHR. According to the Court a widespread problem was caused by the shortcomings in the Polish criminal law system, which had already affected and might affect in the future an unknown number of individuals.81 The mentioning of a ‘structural’ problem is almost like a soft touch of a hand, which can easily remain unnoticed. The Court refers to this problem as ‘structural’, where it refers to ‘several’ analogous applications pending in front of the ECtHR – similarly the numerical data about the amount of applications is missing here. The Court in very general terms reminds that Poland has an obligation to apply measures to remedy the situation, but there is no mention of this obligation in the ruling. Analogous approach using general terms can be found in the judgment Kuptsov and Kuptsova v. Russia,82 although it does not contain terms structural or systemic. Here the Court establishes an Article 5 (1) of the ECHR violation due to absence of a legal basis for detaining an individual whose case had been transmitted to the criminal court after the pre-trial investigation was been concluded. The Russian courts had interpreted the sole fact of transmitting the case to court as a ground for detention, whereas there is no specific provision in Russian criminal procedure law to this effect. The Court proceeded to underline, that it had previously established similar violations in ‘several’ analogous cases and concluded that the detention of an individual when the criminal case is transmitted to the criminal court with no specific legal provision for the Id., Boguslaw Krawczak v. Poland, Judgment of 31 May 2011, Application No. 24205/06, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 80

81

Ibid., para. 127.

Id., Kuptsov and Kuptsova v. Russia, Judgment of 03 March 2011, Application No. 6110/03, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 82

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detention is a violation of the principle of legal clarity and foreseeability. In such a situation one is not protected from the arbitrary actions of the State officials.83 All the previous judgments can be characterised by scarce elaboration on the nature of the structural problem and the specific measures the respective States needed to adopt to overcome the problems. The meaning of the concept of the ‘structural problem’ is diluted. The usage of this concept by itself should alert the respondent government and international community but as long as the concept lacks predictability it will not. There should be clear pre-conditions when it is used and likewise clear consequences. As it stands on the basis of the judgments referred to above, the seriousness of this concept is called into question. It is not for the author of this article to speculate on the reasons of these shortcomings – perhaps the main goal of the Court was to provide individual relief and the inclusion of the structural aspect was due to wishing to be ‘modern’. But it should not be this way. If there is not sufficient attention in a given judgment to the structural aspect of the problem identified, then better avoid the reasoning at all. On the basis of these judgments one could conclude, that a structural problem can also exist in the State’s administrative or court practice. This leads to another unanswered – and perhaps even unformulated by the ECtHR – set of dilemmas. First, if a structural problem is limited only to deficiencies in a country’s legislation, then can it be eliminated via legislative change without waiting for the court practice to enforce it, or are both elements required? And secondly, if a structural problem can also exist due to some deficiencies in administrative or court practice, can these be eliminated via the higher authority giving practice directions or is the time needed for these directions to be confirmed by new court or administrative practice?

5. The Detailed Request of General Measures without Establishing a Structural Problem During the period of 2010 to 2011, the ECtHR issued four judgments concerning Bulgaria, where it found Convention violations due to the domestic application of the law of aliens in extradition proceedings. The main points are on the illegal deten83

Ibid., para. 78.

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tion of the applicants for the duration of the proceedings. In one of those judgments, M. and Others v. Bulgaria,84 a violation of Article 5 (1) of the ECHR was found on the grounds that the State officials acted in a manner that was not effective enough to secure the implementation of the extradition decision during the period when the applicant was detained.85 According to this judgment, the Court stated it had made during the past ten years, nine judgments concerning Bulgaria in connection with the detention of aliens for the period of their extradition proceedings. In these judgments the Court had established violations of Articles 5, 8 and 13 of the ECHR.86 Since there were also ‘several’ similar pending applications in front of the Court, then it considered it necessary to ‘assist’ the Bulgarian government in fulfilment of the present judgment in view of its obligations under Article 46 of the ECHR. When providing this ‘assistance’, the Court avoids reliance on the terms structural or systemic. Nevertheless, the Court stated that international law obliges any branch of the respondent State to take necessary action, including the need for action from the legislative branch.87 Due to these considerations the Court reached a conclusion, that Bulgaria needed to put in place some general measures in order to fulfil its obligations under the Convention. This included changing its law of aliens, as well as its legal practice; thus the measures meant that Bulgaria needed to meet changes in five distinct aspects during the extradition proceedings of aliens.88 These obligations are not presented to the Bulgarian government within the judgment, nor are there any deadlines to accomplish these changes.

Id., M. and Others v. Bulgaria, Judgment of 26 July 2011, Application No. 41416/08, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 84

85 In this judgment the ECHR explains, that the detention of an individual towards whom an extradition order has been issued is compatible with Art. 5 (1) of the ECHR only then, when the actions of the officials are effective to secure the extradition and there are no unjustified delays. 86

ECtHR, Kuptsov and Kuptsova v. Russia (note 82), para. 137.

87

Ibid., para. 136.

Ibid., para. 138. These measures are: the national courts need to obtain the power to evaluate the extradition orders on substance; courts need to evaluate the extradition orders in the context of the need to protect family life; someone can be extradited only to a country that shows respect towards the human rights; claims about possible degrading treatment need to be evaluated carefully; a complaint against the extradition order needs to have an automatic suspensive effect. 88

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A similar approach of ‘assisting’ the government is present in a judgment reached about two and a half months later in Auad v. Bulgaria.89 The Court making a ruling under Article 46 of the ECHR makes a more concrete list of general measures, which resonates with the five-item list referred to in M. and Others v. Bulgaria above.90 But the measures requested are more detailed, since the request for the changing of laws is directed to the law of aliens adopted in 1998 or to other applicable laws. As for the domestic practice in need of change, the Court refers both to administrative and court practice.91 The reason behind ‘assisting’ the government is to avoid a chance that aliens are extradited to countries where a possibility exists of them being subject to degrading treatment or torture, since this is a serious human rights violation with irreversible consequences; especially, given that Bulgaria did not have an effective remedy against this threat. During the period under review (2010 to 2011), the Court issued also towards Slovenia several judgments, where it requested the government to implement general measures, without having first established a structural problem. In the Mandić and Jović v. Slovenia92 the applicants complained about prison conditions in Ljubljana Prison and foremost about the lack of personal space. The applicants argued that their applications concerned a structural problem in Slovenia, which can only be remedied via the building of new prison facilities.93 The Court limits its analysis with the situation in Ljubljana Prison and ascertains that its conditions had not corresponded to Convention requirements for many years.94 It adopted a position that it cannot conclude the existence of a structural problem regarding detention conditions throughout Slovenia in all detention facilities. Still the Court issued specific instructions to the government of how to improve the ECtHR, Auad v. Bulgaria, Judgment of 11 October 2011, Application No. 46390/10, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 89

90

Ibid., para. 139.

91

Ibid.

ECtHR, Mandić and Jović v. Slovenia, Judgment of 20 October 2011, Application Nos. 5774/10 and 5985/10, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). Similar conclusions are also in id., Štrucl and Others v. Slovenia, Judgment of 20 October 2011, Application Nos. 5903/10, 6003/10 and 6544/10, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 92

93

ECtHR, Mandić and Jović v. Slovenia (note 92), para. 122.

94

Ibid., paras. 124–126.

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situation, directing that Slovenia needed to decrease the number of prisoners in order to eliminate Article 3 of the ECHR violations towards other detainees. The instructions were specific – since the size of the chambers were eighteen square metres, the number of detainees in each chamber cannot exceed four. The Court also encouraged the government to create a remedy, which enables detainees to effectively request the alleviation of their conditions and if necessary transfer to another location.95

6. Conclusion The methods for implementation remain the same as identified in the introduction (see supra, section I) – under the supervision of the Committee of Ministers, where the respondent governments must voluntarily work out and execute suitable general measures. Thus the judgments above have elements of both implementation regimes: from the ‘structural’ problem oriented regime the identification of steps that need to be taken and from the ‘traditional’ general measures regime the reliance on the voluntary observation by the governments. This dual approach clearly needs explanations. The Court has not offered any detailed reasoning why it has in some cases given up the previous approach to general measures when not identifying a structural problem. The lack of clarity in the new approach is also evident from the following: the Court has not explained in a comprehensive judgment, based on what criteria the Court reaches its directives which it gives to the respondent government for resolving the problem. For example in Altinok v. Turkey96 the Court found a violation of Article 6 (1) of the ECHR due to the applicant not receiving in the appeal proceedings the written observations of the prosecutor. This violated the principle of equality between the parties. The Court points out that it has around 300 analogous applications pending, and since the violation is caused by the wording of the procedural legal norm it is highly probably that new applications will be submitted.97 According to the Court this is a 95

Ibid., paras. 127et seq.

ECtHR, Altinok v. Turkey, Judgment of 29 November 2011, Application No. 31610/08, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 96

Ibid., para. 73. One also gets the impression from this judgment that the ECtHR’s primary goal is to avoid the chance of similar applications in the future, since the Court does not openly refer to the elimination of comparable violations in the future. 97

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structural problem. But no directives to overcome the problem are given, nor are the reasons for not issuing these directives.

C. Defining the Limits of the ECtHR’s Authority

As already shown above, the Court has through the interpretation of Convention provisions assumed the authority to demand from the Member States that they change their laws of administrative or court practice. The pre-condition of issuing this demand is the establishment of a structural problem in some specific aspect of the Member State’s legislative system, administrative or court practice. There is sufficient empirical evidence – for example the court judgments of 2010 to 2012 (analysed in this article) to support this argument. These judgments do not give a clear answer, whether, behind this development if there is intent to create an instrument to manage its workload or a broader intent to advance a European common legal space.

D. Recent Instruments that may Influence ECtHR Judgments

Protocol 1498 was created to enable the Court to manage the growing number of individual applications. The Protocol expedited the process to resolve repetitive cases. The explanatory report99 to the Protocol refers on many occasions to the need to provide an instrument for resolving applications that concern analogous domestic structural problems. This instrument is the pilot-judgment procedure. But neither the explanatory report nor the text of Protocol 14 refers to the possibility that the Court will now start issuing directives to the Member States for changing their laws or adopting specific legal norms. Respective change of the arsenal occurred already several years prior to Protocol 14 entering force. 98 Protocol 14 entered into force on 1 June 2012. The text of the Convention was changed with the aim of creating the possibility to expedite proceedings. ECtHR, Protocol 14, 1 June 2012, available via: www.echr.coe.int (accessed on 10 February 2013). See also Costas Paraskeva, Human Rights Protection Begins and Ends at Home: The ‘Pilot Judgment Procedure’ Developed by the European Court of Human Rights, Human Rights Law Commentary 3 (2007), available at: http://www.nottingham. ac.uk/hrlc/documents/publications/hrlcommentary2007/pilotjudgmentprocedure.pdf (accessed on 10 February 2013). 99 ECtHR, Explanatory Report, available at: http://conventions.coe.int/Treaty/EN/Reports/ Html/204.htm (accessed on 10 February 2013).

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The Interlaken 2010 Declaration and Action Plan100 foresees that judgments disclosing major structural and or complex problems or pilot judgments are to be examined under the enhanced supervision of the Committee of Ministers. When surmising the agenda of the Court’s practice in the last decade it can be seen that the full and rapid execution of its judgments is at the forefront.101

E. Conclusion

Also during 2010 to 2011, the Court concluded the judgment of Balitskiy v. Ukraine102 which addressed some of these issues. According to the reasoning, the basis for applying Article 46 of the ECHR is the authority of the Court to eliminate quickly the shortcomings of the given domestic legal system.103 In this case, violations under Article 6 (3)(c) and (d) of the ECHR was established in two aspects: firstly, the detention of an individual on the pretext of an administrative misdemeanour in order to obtain the possibility of questioning that individual as a suspect in a criminal case; secondly, intentionally charging an individual with a less significant criminal offence, in order to avoid the compulsory participation of the defence counsel at the investigation. The judgment also referred to six judgments concerning Ukraine three years prior to the present judgment, where the Court had detected similar violations. The Court explained that although it is not appropriate to recommend specific measures to Ukraine, the government nevertheless had to take measures to eliminate the possibility of analogous applications in the future.104 Thereafter the Court noted that it was faced with a structural problem in Ukraine and consequently the State needed to reform its legislation and administrative prac100 Interlaken Declaration and Action Plan adopted at the High Level Conference on the Future of the European Court of Human Rights, 19 February 2010, available at: http://www.eda.admin.ch/ etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.File.tmp/final_en.pdf (accessed on 1 March 2013). 101

Suchkova (note 16), 449.

ECtHR, Balitskiy v. Ukraine, Judgment of 3 November 2011, Application No. 12793/03, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 102

103

Ibid., para. 49.

Ibid., para. 53. One can note here, that the ECtHR wishes to avoid the submission of similar applications in the future. One can contemplate whether this goal coincides with the goal of avoiding similar violations in the future. 104

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tices in order to secure the fulfilment of the conclusions presented in the judgment. The Court stated that the choice of measures and their implementation was Ukraine’s prerogative in co-operation with the Committee of Ministers. The obligation regarding these measures is not written into the judgment, nor were there deadlines. One can therefore ask, what is different with this approach from the previous ‘traditional’ approach of requesting general measures? The response is that the Court now refers to the need to change legislation – an area which it previously did not touch. It can therefore be concluded that at the present moment the case-law of the Court includes two instruments for domestic legislative change. One is through general measures via the supervision of the Committee of Ministers, which can be called soft interference into domestic legislation. The other entails express directives of what laws need to be changed with more or less rigid deadlines and criteria established and this can be denoted as the sharp interference into domestic legislation.

IV. Developments in 2012 Having examined the judgments from 2010 to 2011, one question remains, i.e., whether the developments in 2012 confirm the findings and whether in the most recent case-law the Court has clarified some of the questions which were brought forward. The judgments105 show the continuation of trends outlined previously. The pre-condition for establishing a structural problem, still seem to be the issue in a considerable number of judgments in similar matters against the respondent State, as well as a considerable number of pending applications. In Ümmühan Kaplan v. Turkey106 the Court points out that as at the end of 2011 there were more than 2700 applications pending against Turkey, which argue the absence of an effective domestic remedy against unreasonable length of proceedings. In a case against Greece regarding a similar complaint – Michelioudakis v. Greece107 – the Court points to 250 analogous pending applications and more than 300 judgments with a similar ques105

Based on those analysed until August 2012 (included) at the time of writing.

ECtHR, Ümmühan Kaplan v. Turkey, Judgment of 20 March 2012, Application No. 24240/07, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 106

107 Id., Michelioudakis v. Greece, Judgment of 3 April 2012, Application No. 54447/10, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013).

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tion. Both were pilot-judgments, where the Court gave direct instructions for the creation of an effective domestic remedy via legislative changes. However the question remains: at what stage does the Court decide that it has sufficient impetus before proceeding to adopt a pilot-judgment? A new phenomenon has also emerged – the establishment of precedents and recurrence respondent States on the same issue. The Court made judgments which relied on a structural problem established in an earlier judgment. With the Court noting that the situation has not been remedied and still affects many individuals. For example, in Geld v. Russia108 it was noted, that overcrowding is a structural problem in Russian detention centres. The Court draws from here an interpretation regarding the instrument of exhaustion of domestic remedies – there is no need to exhaust these remedies if the person complains of a structural problem. Therefore the applicant in this case was not required to exhaust domestic remedies via launching domestic complaints against the prison conditions.109 Or in Grzywaczewski v. Poland,110 where the Court noted that it had already established a structural problem in Poland due to the lack of an effective remedy for domestic complaints against prison conditions.111 Some countries seem to come frequently under the Court’s scrutiny for certain repetitive violations. Ukraine had structural problems in a variety of criminal procedural aspects. In these judgments the Court kept referring to the need to implement general measures. For example in Vasiliy Ivashchenko v. Ukraine112 the Court noted a structural problem due to detainees not being given necessary documents for filing an individual complaint with the ECHR; in Grigoryev v. Ukraine113 the Court noted a structural problem in the detention of an individual on the pretext of questioning the Id., Geld v. Russia, Judgment of 27 March 2012, Application No. 1900/04, available via: http:// hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 108

109

Ibid., para. 21.The Court refers to earlier judgments where this structural problem is identified.

Id., Grzywaczewski v. Poland, Judgment of 31 May 2012, Application No. 18364/06, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 110

111 Ibid., para. 67. In this case the Court is noting that although Poland has introduced such a remedy, this was not available at the time of the applicant’s rights violation.

Id., Vasiliy Ivashchenko v. Ukraine, Judgment of 26 July 2012, Application No. 760/03, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 112

113 Id., Grigoryev v. Ukraine, Judgment of 15 may 2012, Application No. 51671/07, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013).

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detainee for an administrative misdemeanour, when in reality the authorities only sought to ask questions relating to a criminal violation; and in Savin v. Ukraine,114 the structural problem was established due to the refusal of the investigators to follow the directives from the prosecutors. The most substantial (pilot)-judgment regarding a structural problem within the first eight months of 2012 was in Ananyev and Others v. Russia,115 where the Court presented its full position for defining a structural problem and thereafter issuing a pilot-judgment. The case concerned the continuing violation of personal space requirements in Russian prisons, as well as other detention conditions. The Court explained that questions regarding the prison conditions have been constantly on the agenda of reports (starting from 2002) by the Committee of Ministers of the Council of Europe.116 The unwillingness of the Russian government to introduce an effective remedy neither against the inferior detention conditions or to commit resources to physically improve the conditions had been visible from the ECtHR case-law.117 The Court then goes forward to explain the reasons for the pilot-judgment: [t]he Court thus feels compelled to address the underlying structural problems in greater depth, to examine the source of those problems and to provide further assistance to the respondent State in finding the appropriate solutions and to the Committee of Ministers in supervising the execution of the judgments.118

So it seems that the Court is willing to allow sufficient time for a Member State to introduce remedies even after it has established a structural problem. If there are no visible or satisfactory results, the Court then proceeds to adopt a pilot-judgment. The timing is probably a matter of debate, but there needs to be evidence that the respective matter has been under the Court’s attention for some time and several indications have been given to the respondent State to take appropriate action.

Id., Savin v. Ukraine, Judgment of 16 February 2012, Application No. 34725/08, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 114

115 Id., Ananyev and Others v. Russia, Judgment of 10 January 2012, Applications Nos. 42525/07 and 60800/08. 116

Ibid., para. 187.

This is highlighted by the Court when it referred to the appendix to the judgments in 90 cases decided from 2002; see ibid., para. 200. 117

118

Ibid., para. 190.

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But what if the respondent State does not live up to the Court’s expectations? As a matter of fact, Articles 1 and 46 of the ECHR together already impose upon Member States the obligation to take general obligations for avoiding similar violations in the future. The Court has so far been unable to introduce an effective instrument for addressing non-compliance with a structural problem from the part of the respondent States. The ‘toughest’ sanction the Court has been able to issue is: [where] the respondent State fails to adopt such measures following a pilot judgment and continues to violate the Convention, the Court will have no choice but to resume examination of all similar applications pending before it and to take them to judgment so as to ensure effective observance of Convention.119

So the only venue open is to continue to resolve pending applications and award damages to individual applicants. Perhaps the absence of a sanction against noncompliant States after a structural problem has been established and thereafter a pilot-judgment issued, is a seriously limiting matter for the effectiveness of this new remedy.120 Just imagine if the ECtHR had in its ‘arsenal’ the option of applying fines of considerable magnitude in the event of this non-compliance. Then the establishment of a structural problem would already send a serious signal – like a yellow card in European football, since nobody wishes to receive the subsequent red card. But this reform is something which would mean even a deeper ‘structural’ reform of the ECtHR and its working authority.

V. Conclusion While this article has shown that the authority to demand from Member States legislative changes is an instrument which the Court has created through Convention interpretation, it is probably unimaginable that the authority to impose significant fines could follow in the same way. But this is a topic for another article. So far, it is important to note that the concept of a ‘structural’ problem continuously needs clarification in some aspects which have been under discussion above. The conceptual Id., Manushaqe Puto and Others v. Albania, Judgment of 31 July 2012, Applications Nos. 604/ 07, 43628/07, 46684/07 and 34770/09, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 4 April 2013). 119

120

For general discussion of remedies see Dinah Shelton, Remedies in International Law (2nd ed. 2005).

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context needs to correspond to the principle of legal clarity and foreseeability, which it does not fully accomplish at the moment. Arguably interference into Member States’ legislation provides the Court with an instrument which can be used in the event of possible conflict between its judgments and those of other international courts, or in discerning which authority prevails in the event of a serious conflict – the national constitution or the Convention. There is also a separate question, if accession of the EU to the ECHR might create a situation of conflicting international court decisions over analogous or identical issues.121 One aspect which is outside the ambit of this article but it of worth mention, is the possible conflict between national constitutions and the ECHR, as well as the judgments of the highest court of the country versus the ECtHR. This situation may not concern all Member States, since there are many national highest courts that have been ‘praised’ by the ECtHR122 for diligent implementation of the latter’s case-law and not likely – perhaps for political or geopolitical reasons – to exhibit ‘judicial resistance’ to the Strasbourg system. However, it has been argued for example in Germany that in situations of real conflict between a Strasbourg interpretation of the Convention and one of the rights guaranteed by the Basic Law, the latter will prevail.123 Since the mid-2000s the ECtHR has abandoned one cornerstone of its operation since its inception – the principle that it has no authority to impose upon Member States an obligation to change their laws or administrative or court practice. However, the Court has assumed this authority itself by the interpretation of Convention Articles 1, 19 and 46. Such authority does not come from the Convention or its Protocols expressis verbis. The direction to give to the Member States binding obligations for general measures appeared in the ECtHR case-law prior to Protocol 14 taking effect. The goal of the latter was to create a procedure for resolving a large number of similar applications within reasonable time. As is stated in some popular Hollywood movies – the real power is not what you are given; the real power is what 121

Weiss (note 41), 395.

See for example the following formulation: “[i]ndeed, in the light of the principle of subsidiarity referred to above, the Supreme Court’s decision to apply the Convention directly, in the absence of a provision of domestic legislation giving the applicant a right to compensation, is to be commended.” ECtHR, Ciprap v. the Republic of Moldova (no. 3), Judgment of 20 July 2010, Application No. 7481/06, para. 23. 122

123 Janneke Gerards, Judicial Deliberations in the European Court of Human Rights, East European Human Rights Review 17 (1) (2011), 1, 7.

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you take!124 The Court has taken the power! Maybe these powers where always available, but dormant. Only after reaching certain maturity the European human rights system is ready to accept these new powers of international interference into domestic legislation regarding human rights matters. The Court defines as a structural problem, a situation in the Member State where a legal norm or its application via administrative or court practice may affect a whole group of individuals. The pre-condition for establishing a structural problem in the ECtHR judgment is the existence of analogous judgments towards the respondent State in the past and in analogous pending applications, however the Court usually does not determine this proportion on a definite numerical scale. The terms used in the ECtHR’s judgments to determine this pre-condition are not clear (e.g. ‘numerous’ or ‘several’). In some judgments the Court presents detailed numerical data about previous judgments in analogous cases. Therefore the ECtHR case-law is inconsistent about the question of what should be the relative number of similar judgments or their proportion to the total number of judgments towards a respondent State for the ECtHR to consider the situation (affecting many individuals in comparable situation) as a structural problem. It seems clear that without previous judgments the Court is not willing to admit the existence of a structural problem. The substantive aspect of the Court’s case-law lacks consistency and foreseeability in several aspects regarding the term ‘structural problem’ and conditions for its application. First, it is not clear based on what considerations the ECtHR decides whether to make a pilot-judgment in a given case. Nor is there clarity on the criteria or considerations the ECtHR classifies certain shortcomings in laws or administrative or court practice as a structural problem. Further, the Court fails to define the situation it classes or notes as a ‘structural’ problem – as it is simply satisfied with noting that many individuals may be affected by a similar situation, without defining it. Second, after establishing a structural problem the Court either requires the respondent State to apply some general measures or decides to ‘assist’ the respondent government in choosing these measures. The Court’s judgments does not give an explanation, based on what criteria it makes a choice either to ‘assist’ the government or expressly request a legislative change. When issuing this request the Court either 124 As popularised by TV’s Dallas Jock Ewing, “Nobody gives you power. Real power is something you take,” available at: http://www.ultimatedallas.com/characters/snap4.htm (accessed on 27 March 2013).

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mentions the need to apply ‘appropriate’ changes or measures, or include this request imperatively with detailed directives. These further choices are also not explained in the judgments, but they should be. Third, the question is still open, whether a structural problem presupposes a shortcoming in the State’s legal system or if shortcomings in the administrative or court practices can also be classified as a structural problem. Fourth, the Court speaks of a ‘greater depth’125 of a structural problem – which may lead to the adoption of a pilot-judgment. It is not clear where this ‘greater depth’ starts from. It was demonstrated above that the structural problem’s establishment does not necessarily mean that the Court needs to make a pilot-judgment. In the current caselaw most judgments establishing a structural problem are not pilot-judgments. Fifth, the ‘structural’ change in the Court’s powers, has led it to redefine some important principles. The Court is willing to accept that domestic remedies need not be exhausted if the complaint is about a structural problem. But there are no clear guidelines for applicants to ‘risk’ avoiding the domestic remedy. If it is reasonable to expect that a domestic remedy may be avoided when the Court has expressly established a structural problem in its previous judgment about an analogous, it should say so. Otherwise applicants might be tempted to start replacing their own assessment of what constitutes a structural problem over the assessment of the Court. At the present, the case-law of the Court includes two instruments for requesting domestic legislative change. One is through the general measures via the supervision of the Committee of Ministers – the soft interference into domestic legislation. The other entails express directives of what laws need to be changed with more or less rigid deadlines and criteria established – the sharp interference into domestic legislation. Most judgments regarding a structural problem are in connection with the right to liberty. But the most comprehensive judgments are connected with establishing a violation in other spheres – for example the question about the absence of an effective remedy against unreasonable length of proceedings in Germany and the violation of property owners rights in Poland.126 125

See ibid., (note 122) para. 190.

See cases discussed earlier: ECtHR, Rumpf v. Germany (note 57) and id., Broniowski v. Poland (note 43). 126

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The author of this article is of the opinion, that the case-law of the Court is currently at the crossroads, where one possibility is that the establishment of a structural problem remains more as an exception. There are no other instruments on the horizon which would at least in theory accomplish comparable goals – to avoid the repetition of comparable violations towards a significant group of individuals. If it remains more as an exception, then it is likely that the uncertain aspects referred to above escalate and this unique instrument will not lead to the ‘structural’ change in the ECtHR case-law. In such a case it is hard to imagine a ‘second’ try, which could achieve a comparable instrument of interference into domestic legislation. It would not emerge in decades and the brilliant idea of shaping European legal space which has comparable human rights protection in all Member States gets a setback. The other possibility is that respective judgments grow in their numbers and scope. In this case, the Court needs to work through the uncertain aspects – some of which are indicated in this article – and present clear criteria for future judgments. Also a matter for the future is the question on how to guarantee the protection of fundamental rights in a situation, where the Court establishes a structural problem in a Member State, but the officials in that country continue to violate its obligations through laws or administrative or court practices that the Court had directed it to change. At the moment, penalising non-compliant Member States financially is perhaps even not a theoretical possibility. The existence of a shortcoming in a Member State’s legal system, or its administrative or court practice affecting many individuals is not dependent on an international court’s say-so. What if nobody or a few have made an application to the Court and there are still no judgments regarding this situation? Would it be impossible to establish a structural problem by an international court? The ECtHR is yet to explain why the establishment of a structural problem is conditional on previous judgments on similar matter and on other pending analogous applications. Hopefully, the Court will address some of these matters in the nearest future and will thereby effectively avoid the creation of another ‘grey area’ in its case-law.

Indigenous Whaling and Environmental Protection MALGOSIA FITZMAURICE(

ABSTRACT: This article is devoted to indigenous whaling. Indigenous whaling is one of three types of whaling along with commercial and scientific whaling. Indigenous whaling was considered to be the least contested type. However, this year at the annual meeting of the International Whaling Commission, it proved to be a rather contentious issue. Indigenous whaling can be also analysed from the point of view of cultural diversity. KEYWORDS: Whaling, Indigenous Peoples, Cultural Diversity, International Whaling Commission, Conflict of Treaties, Makah Peoples, Inuit Peoples

I. Introduction Whaling raises many interesting, contentious, and even divisive issues. These involve not only law directly relating to whaling, but, increasingly, other fields of international law – in particular environmental law relating to biological diversity and human rights – but also, the field of ethics.1 This article will be devoted to one of its aspects, namely, aboriginal (or indigenous) whaling, which is also frequently referred to as ‘aboriginal subsistence’ whaling, a field which – although it has been widely discussed in many international fora, in particular, of course, the International Whaling Commission (IWC), and analysed in literature – continues to envelope many unresolved issues which remain the subject of heated debate.2 (

Professor of Public International Law at Queen Mary, University of London.

Malgosia Fitzmaurice, Indigenous Whaling, Protection of the Environment, Intergenerational Rights and Environmental Ethics, The Yearbook of Polar Law 2 (2010), 253–279. 1

2 See, e.g., Leena Heinämäki, Protecting the Rights of Indigenous Peoples – Promoting the Sustainability of the Global Environment, International Community Law Review (ICLR) 11 (2009), 3; Kamrul Hossein, Hunting by Indigenous Peoples of Charismatic Mega-Fauna: Does Human Rights Approach Challenge the way Hunting by Indigenous Peoples is Regulated?, ICLR 10 (2008), 295; Benjamin L. Richardson, Indigenous Peoples, International Law and Sustainability, Review of European

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The hypothesis of this article is that indigenous peoples have, on the one hand, a right to whaling and cultural diversity, but, on the other hand, they should participate in the process of global environmental protection of the world’s endangered biodiversity. Such a hypothesis raises the issue of possible conflict between the legal regimes relating to cultural diversity and those relating to environmental protection. There are several examples of aboriginal whaling which illustrate this problem; the best known illustration is that of the Makah Indians. Also meriting mention is the similar case of the Inuit peoples in Greenland.3 The issue of compatibility and harmonisation of aboriginal whaling and obligations relating to environmental protection is a complex one and although common wisdom indicates that this problem should have a very straightforward solution, practice, thus far, clearly indicates the complications resulting from the reconciling of these two issues. The analysis of the aboriginal whaling will be presented in the Community and International Environmental Law (RECIEL) 10 (2001), 1; Alexander Gillespie, Aboriginal Subsistence Whaling: A Critique of the Inter-Relationship between International Law and the International Whaling Commission, Colorado Journal of International Environmental Law and Policy 12 (2001), 77; Randall R. Reeves, The Origin and Character of ‘Aboriginal Subsistence’ Whaling: A Global Review, Mammal Review 32 (2002), 71; Richard A. Caufield, Aboriginal Subsistence Whaling on Greenland: The Case of Qeqertarsuaq Municipality in West Greenland, Arctic 46 (1993), 144; Jeremy Firestone/Jonathan Lilley, Aboriginal Subsistence Whaling and the Right to Practice and Revitalise Cultural Traditions and Customs, Journal of International Wildlife Law and Policy (JIWLP) 8 (2005), 177; id., Bridging the Dominant – Indigenous Peoples Cultural Divide: Reflections on Makah Whaling, in: Michael I. Jeffery/Jeremy Firestone/Karen Bubna-Litic (eds.), Biodiversity, Conservation, Live and Livelihoods: Bridging the North South Divide (2008), 358. 3 The problems concerning whaling and the protection of whales have been a subject of many excellent publications, in particular the following publications which take a comprehensive approach to these issues. See Alexander Gillespie, Whaling Diplomacy: Defining the Issues in International Environmental Law (2005); Gerry J. Nagtzaam, The International Whaling Commission and the Elusive Great White Whale of Preservationism, available at: http://works.bepress.com/gerry_nagtzaam/2/ (accessed on 5 March 2012); id., The Making of International Environmental Treaties (2010). See also Maria Clara Maffei, The International Convention for the Regulation of Whaling, International Journal of Marine and Coastal Law (IJMCL) 12 (1997), 287; Patricia Birnie, Are Twentieth-Century Marine Conservation Conventions Adaptable to Twenty First Century Goals and Principles?: Part II, IJMCL 12 (1997), 499; Steven Freeland/Julie Drysdale, Co-Operation or Chaos? Article 65 of United Nations Convention on the Law of the Sea and the Future of the International Whaling Commission, Macquarie Journal of International and Comparative Environmental Law 2 (2005), 1; William C.G. Burns, The International Whaling Commission and the Regulation of the Consumptive and Non-Consumptive Uses of Small Cetaceans: The Critical Agenda for the 1990s, Wisconsin International Law Journal 13 (1994), 105; Adrienne M. Ruffle, Resurrecting the International Whaling Commission: Suggestions to Strengthen the Conservation Effort, Brooklyn Journal of International Law 27 (2002), 639; Dan Goodman, The ‘Future of the IWC’: Why the Initiative to save the International Whaling Commission Failed, JIWLP 14 (2011), 63.

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context of commercial whaling and scientific whaling (both rather contentious issues as well). The structure of the article proceeds as follows: a short historical background of the regulation of whaling and aboriginal whaling; a short description of the IWC; aboriginal whaling within the jurisdiction of the IWC; aboriginal whaling outside the IWC; the contentious cases illustrating aboriginal whaling which may be considered as affecting the environment (biological diversity); human rights issues relating to the cultural element in aboriginal whaling; aboriginal whaling and other fields of international law; and possible conflict with other international instruments.4

II. Historical Background of the Regulation of Whaling and Aboriginal Whaling The development of technology in the 20th century brought about the depletion of whale stocks.5 This state of affairs resulted in the conclusion of the first Convention for the Regulation of Whaling (1931 Geneva Whaling Convention).6 While the Convention contained fairly comprehensive and progressive provisions,7 it failed to fulfil expectations, as some of the main whaling nations, Japan, the Soviet Union and Germany, did not become Parties to it,8 despite the fact that the main aim of this Convention was to accommodate the interests of whaling nations.9 The 1931 Geneva Whaling Convention was followed by the International Agreement for the Regulation of Whaling (1937 London Agreement) which, though it was a global and comprehen-

4

See, e.g., The Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79.

See generally Johan Nicolay Tønnessen/Arne Odd Johnsen, The History of Modern Whaling (1982). 5

Convention for the Regulation of Whaling, 24 September 1931, LNTS CLV, 349, signed by 26 States. 6

It included territorial waters (Art. 1); introduced licensing of whaling vessels (Art. 8); included special provisions for aboriginal whaling, allowing them to whale but only if traditional methods of whaling were used. 7

8

Nagtzaam (note 3), 162.

Anthony D’Amato/Sudhir Chopra, Whales: Their Emerging Right to Life, American Journal of International Law 85 (1991), 21, 31. 9

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sive treaty on the regulation of whaling,10 cannot be assessed as having been fully successful in light of the fact that hunting for whales continued at an unsustainable rate.11

A. The International Convention for the Regulation of Whaling

After the Second World War, the 1946 International Convention for the Regulation of Whaling12 (ICRW) was concluded. This Convention, which remains the major international instrument governing whaling today, was one of the first instruments concluded to protect biodiversity. It constituted the response of States to steadily dwindling whale stocks. Under this regime, whaling was, in practice, divided into three categories: commercial whaling, scientific whaling and aboriginal whaling. The IWC was originally involved principally in the conservation of catches for the benefit of commercial whaling, which was reflected in membership of the Commission. The ICRW had two main objectives set out in its Preamble, but which as the current practice demonstrates, are almost impossible to reconcile. They are: (i) to establish a system of international regulation for the whale fisheries to ensure proper and effective conservation and development of whale stocks and (ii) to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry. Further confusion as to the objectives of the ICRW arises due to the application in the Convention of the term ‘fisheries’ to whaling. This had an impact on the formulation of policy towards whaling, i.e. tending to place the focus on short term economic gains rather than long term scientifically founded management, aimed at avoiding the overexploitation of stocks.13 10 International Agreement for the Regulation of Whaling, 8 June 1937, concluded between Argentina, Irish Free State, New Zealand, South Africa, the United States, and the United Kingdom, LNTS CXC, 79. See on both the Geneva Convention and the London Agreement Tuomas Kuokkanen, International Law and the Environment Variations on a Theme (2002), 121 et seq. Agreement was supplemented by the 1938 Amendment, which in particular related to an enhanced protection of humpback whales. 11

Nagtzaam (note 3), 164.

International Convention for the Regulation of Whaling, 2 December 1946, UNTS 161, 72, entered into force in 1948. 12

13

Natgzaam (note 3), 167.

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A Schedule was appended to the ICRW (the Schedule) which, inter alia, lists the types of great whales, the method of taking whales, and the operation of factory ships. The Schedule forms an integral part of the Convention. It has been amended periodically under a simplified procedure requiring only a three-quarters majority, by comparison to amendment of the Convention itself, which requires the agreement of all member States (Article V). The most important (and divisive) amendment to the Schedule to date has been the introduction in 1986 of the moratorium on commercial whaling which meant zero catch quotas. Thus, the amended paragraph 10 (e) of the Schedule reads as follows: Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for 1986 coastal and the 1985/86 pelagic seasons and thereafter will be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of these decisions on whale stocks and consider modification of this provision and the establishment of other catch limits.

Several States (Norway, Iceland and initially Japan) lodged objections to this provision and one of the main whaling nations, Canada, left the Convention. It is of interest to note that the IWC made an exception for aboriginal whaling within this article.

B. The International Whaling Commission

The ICRW also established the IWC which is the main body of the Convention. According to the ICRW the main duty of the IWC is to keep under review and revise, as necessary, the measures laid down in the Schedule to the Convention which governs the conduct of whaling throughout the world. These measures provide, inter alia, for the complete protection of certain species; designate specified areas as whale sanctuaries; set limits on the numbers and sizes of whales which may be taken; prescribe open and closed seasons and areas for whaling; and prohibit the capture of suckling calves and female whales accompanied by calves. The IWC coordinates the compilation of catch reports and other statistical and biological records. It also encourages the coordination and funding of whale research,

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publishes the results of scientific research and promoting studies into related matters such as the humaneness of killing methods.14 The current membership of the IWC is 89 States, out of which only seven States are engaged in any kind of whaling (commercial, scientific and aboriginal). Therefore, the balance between the two aims of the conservation the proper conservation of whale stocks and the the orderly development of the whaling industry had been changed in favour of the conservation.15 These developments resulted in serious disagreements in the work of the IWC,16 and lead to the adoption of the St. Kitts and Nevis Declaration, during the 2006 meeting of the IWC, in which certain Commissioners expressed their dissatisfaction with the continuation of the moratorium on commercial whaling.17 The sponsors of the Declaration18 stated that: Commissioners express their concern that the IWC has failed to meet its obligations under the terms of the ICRW and, declare our commitment to normalising the functions of the IWC based on the terms of the ICRW and other relevant international law, respect for cultural diversity and traditions of coastal peoples and the fundamental principles of

All documents are available at: www.iwcoffi ce.org/commission/iwcmain.htm (accessed on 6 March 2012). 14

However, the very detailed analysis of the circumstances surrounding the signing of the Convention and the attitudes of the signatory States, lead Bowman to the conclude that “there is no inherent implausibility in the suggestion that the ICRW was predicated on the implicit abandonment of the profitability of the whaling industry as the raison d’etre of regulation,” Michael Bowman, ‘Normalizing’ the International Convention for the Regulation of Whaling, Michigan Journal of International Law 29 (2007), 293, 397. 15

16 It was argued by whaling States that “after 14 years of discussion and negotiation, the IWC had failed to complete and implement a management regime to regulate commercial whaling” (see infra, note 17) which lead to the lack of agreement in the IWC between whaling and non-whaling States. 17 St. Kitts and Nevis Declaration, International Whaling Commission/58/16, Agenda Item 19, June 2006, adopted at the meeting of the IWC which was held 16 June–20 June 2006 in St. Kitts and Nevis, available at: http://www.unesco.org/csi/smis/siv/Forum/SKNdeclaration06.pdf (accessed on 4 March 2012). The declaration said, inter alia, that: “Emphasizing that the use of cetaceans in many parts of the world including the Caribbean, contributes to sustainable coastal communities, sustainable livelihoods, food security and poverty reduction and that placing the use of whales outside the context of the globally accepted norm of science-based management and rule-making for emotional reasons would set a bad precedent that risks our use of fisheries and other renewable resources”.

The States sponsoring the Declaration were as follows: St. Kitts and Nevis, Antigua and Barbuda, Benin, Cambodia, Cameroon, Cote d’Ivoire, Dominica, Gabon, Gambia, Grenada, Republic of Guinea, Iceland, Japan, Kiribati, Mali, Republic of the Marshall Islands, Mauritania, Mongolia, Morocco, Nauru, Nicaragua, Norway, Republic of Palau, Russian Federation, St. Lucia, St. Vincent and the Grenadines, Solomon Islands, Suriname, Togo, Tuvalu. 18

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sustainable use of resources, and the need for science-based policy and rule-making that are accepted as the world standard for the management of marine resources.19

There are also inherent weaknesses in the whole system, which is the result of certain lacunae in the ICRW itself. Discussion of these issues exceeds the ambit of this article; but one major drawback of the Convention, which impacts on issues relating to aboriginal whaling, is the lack of a proper definition of what constitutes a whale under the ICRW, which merely names a dozen species (great whales, baleen and sperm whales). This lack of a definition has led, in particular, to disputes regarding the jurisdiction of the IWC over small and medium sized cetaceans, as it is argued that the IWC only has legal jurisdiction in relation to the species actually named.20 As a result, doubts arise, for instance, concerning the jurisdiction of the IWC over some of the smaller species (e.g. narwhal) traditionally fished by certain indigenous groups, such as the Inuit in Greenland. However, many States have raised objections to the extension of the jurisdiction of the IWC into the territorial sea and the exclusive economic zone as being ultra vires,21 notwithstanding that the ICRW applies to all waters (Article I (2)). Undoubtedly the most contentious issues are those relating to scientific whaling. Article VIII of the ICRW provides that “[n]otwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a permit authorizing that national to kill, take and treat whales for purposes of scientific research.” This right takes precedence over any other IWC regulations, including the moratorium and sanctuaries, thus leaving the IWC unable to do more, in respect of scientific whaling, than to prepare a set of 2008 Guidelines on Scientific Whaling.22 19

See supra, note 17.

See on this subject Gillespie (note 3), 277; id., Small Cetaceans, International Law and the International Whaling Commission, Melbourne Journal of International Law 2 (2001), 257; Malgosia Fitzmaurice, So Much Law, So Little Protection! A Case-Study of the Protection of the Narwhal, The Yearbook of Polar Law 1 (2009), 28. 20

21

Gillespie (note 3), 289.

The main feature of the new procedure is the holding of a specialist workshop to review proposals for and results from scientific permits. The new proposal should be submitted to the Chair of the Scientific Committee at least six months prior to the Annual Meeting, at which they are to be discussed, following pro forma supplied by the Secretariat. The proposal will have the following structure: (A) Objectives; (B) Methods to address objectives; (C) Assessment of potential effects of catches on the stocks involved; (D) A note on the provisions for co-operative research; (E) A list of scientists proposed for international review workshop. 22

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The most contentious national licences issued pursuant to Article VIII have been the permits issued by Japan (JARPA and JARPN II programmes). At the 2007 Annual meeting doubts were expressed regarding the value of this research both within the Scientific Committee and the Commission, including: the relevance of the proposed research to management, appropriate sample sizes and the applicability of alternate (non-lethal) research methods.23 The Japanese scientific programme is quite extensive and the taking of whales in this programme is considerably more extensive than the whales allocated for aboriginal whaling.24 In general, all attempts at compromise between pro-whaling and anti-whaling groups within the IWC have failed.25 The pro-whaling group is of the view that the continuing prohibition of commercial whaling and the establishment in 1994 of the Southern Ocean Sanctuary are not based on scientific findings and are also contrary to one of the aims of the ICRW, namely, the management of whaling industry, as laid out in the Preamble to the ICRW.26 This impasse in the IWC has been partly blamed on what is seen as the undue influence of environmental Non-Governmental Organisations. Goodman asserts that: [t]he unsuccessful end to the future of the IWC process, brought about by the influence of anti-whaling NGOs on member governments, means that whaling other than aboriginal subsistence whaling will remain outside the control of the IWC. Japan will continue to set unilaterally the catch limits for its research whaling, Norway will continue to set its own Available at: http://iwcoffi ce.org/commission/iwcmain.htm#research (accessed on 3 March 2012). It will be a simplification to state that only Japan pursues scientific whaling, as Norway and Iceland also engage in it. It is the number of whales caught that is controversial. 23

24 Japan has issued scientific permits every year in recent years. After completion of a six year JARPN programme in the North Pacific in 1999, Japan initiated a JARPN II programme, initially as a 2-year feasibility study in 2000, for 100 common minke whales, 50 Bryde’s whales and 10 sperm whales in the western North Pacific, NTARCTIC (1) – JARPA (1987/1988–2004/2005). The IWC on Japanese scientific programmes says that: [t]he stated objectives of the 16-year ‘JARPA’ programme were: estimation of biological parameters (especially the natural mortality rate) to improve management; elucidation of stock structure to improve management; examination of the role of whales in the Antarctic ecosystem; examination of the effect of environmental changes on cetaceans. Research activity combined a randomised lethal catch (400±10 % minke whales each year) with concurrent line-transect sighting surveys. Operations alternated each year between Area IV + Area IIIE (35°E–130°E) and Area V + Area VIW (130°E–145°W). At that time the most recently agreed population estimates from independent surveys undertaken by the IWC [link to the SOWER programme] were for Area IV in 1988/89 (74,700; 95 % confidence interval 45,000–123,000) and Area V in 1985/86 (294,600; 95 % CI 225,000–386,000). 25

Goodman (note 3), 63–74.

All these issues were elaborated at the St. Kitts and Nevis Declaration on non-confidence to IWC (adopted by pro whaling States). On the Declaration see supra, note 17. 26

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quotas for its commercial whaling under its ‘objection’ to the moratorium, and Iceland will continue to set its own quotas for its commercial whaling under its ‘reservation’ to the moratorium. Although unnecessary from a conservation perspective, the very significant reduction in total catches that would have resulted from a successful outcome of the negotiations now will not occur.27

The irreconcilable differences between the whaling nations (which constitute a minority), and the non-whaling nations (which constitute the majority) in the IWC (which would like to continue the moratorium on whaling), make the IWC a dysfunctional body. Thus, the IWC has failed its function as an organisation which “must be understood as being complex and multifaceted. Its overall policy objectives were to ensure the protection of all whale species from overfishing-in part, arguably, for their own sake, but primarily as a means of safeguarding the resources they embodies for the benefit of future generations.”28

III. Aboriginal Whaling within the Jurisdiction of the IWC International recognition of aboriginal, subsistence whaling is not new. The special position of whaling rights of aboriginal communities were already recognised and included in Article 3 of the 1931 Geneva Whaling Convention, which stated that it did not apply to aborigines’ dwelling on the coasts of the Parties, provided that: (1)

They only use canoes, pirogues or other exclusively native craft propelled by oars or sails;

(2)

they do not carry firearms;

(3)

they are not in the employment of persons other than aborigines;

(4)

they are not under contract to deliver the products of their whaling to any third person.

However, no equivalent provision was included in either the 1937 London Agreement or in the 1938 Protocol amending the 1937 London Agreement.29 27

Goodman (note 3), 72 et seq.

28

Bowman (note 15), 430.

Protocol amending the International Agreement of 8 June 1937 for the Regulation of Whaling, 24 June 1938, LNTS CXCVI, 131. 29

428 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 A. Defining Aboriginal Subsistence Whaling

The 1946 ICRW does not itself include any special provision regulating aboriginal, subsistence whaling; however, the Schedule to this Convention recognizes its special position by excluding it from the definition of, and the provisions relating to, commercial whaling. In 1979, the IWC Anthropology Panel adopted an unofficial definition of ‘subsistence whaling’ as comprising: (1)

the personal consumption of whale products for food fuel, shelter, clothing, tools, or transportation by participants in the whale harvest;

(2)

the barter, trade, or sharing of whale products in their harvestal from with relatives of the participants in the harvest, with others in the local community or with persons in locations other than the local community with whom local residents share familial, social, cultural or economic ties. A generalised currency is involved in this barter and trade, but the predominant portion of the products from each whale is ordinarily directly consumed or utilised in their harvested form within the local community; and

(3)

the making and selling of handicraft articles from whale products, when the whale is harvested for the purposes (1) and (2) above.30

‘Aboriginal subsistence whaling’ was again defined in 1981, this time by the IWC’s Technical Committee Working Group on Development of Management Principles and Guidelines for Subsistence Catches of Whales by Indigenous (Aboriginal) Peoples (Technical Committee), as comprising whaling conducted for “purposes of local aboriginal consumption carried out by or on behalf of aboriginal, indigenous or native people who share strong community, familial, social and cultural ties related to a continuing traditional dependence on whaling and on the use of whales.”31 Report of the Cultural Anthropology Panel, reprinted in: International Whaling Commission, Aboriginal/Subsistence Whaling (with special reference to the Alaska and Greenland fisheries), Reports of the International Whaling Commission – Special Issue 4 (1982), 35–50, available at: http://www. iwcoffice.org/cache/downloads/ebvr17xp4e80w40804cssc4s8/RIWC-SI4-pp34-73.pdf (accessed on 24 October 2012). 30

C. P. Donovan, The International Whaling Commission and Aboriginal Subsistence Whaling, April 1978–1981, reprinted in: International Whaling Commission, Aboriginal/Subsistence Whaling (with special reference to the Alaska and Greenland fisheries), Reports of the International Whaling 31

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These definitions are very problematic. For instance, the interchangeable use of terms ‘aboriginal’, ‘native’, and ‘indigenous’ is in itself confusing, as in many indigenous communities this leads to different meanings. For example, doubts have been raised as to whether whaling in Greenland can qualify as aboriginal.32 At the outset, confusion has resulted from the lack of any conclusive definition of what constitutes ‘commercial’ whaling, which makes the differentiation between ‘aboriginal’ and ‘commercial’ whaling very vague. As Reeves postulates, “the distinction between commercial and subsistence remains crude and ambiguous.”33 The Aboriginal Subsistence Whaling Sub-Committee (AWS) was established in order to consider documentation on needs relating to aboriginal whaling and to advise the Technical Committee on the setting up of proper management measures. The field of ‘aboriginal subsistence whaling’ was consequently subdivided into the following fields: (i) subsistence whaling; (ii) nutritional whaling (cultural whaling). Thus, as Gillespie noted, the above definitions of aboriginal whaling indicate that aboriginal hunts for whales should be local and non-commercial in nature. But this conflicts to some extent with the definition of ‘consumption’ which allows the sale of by-products.34 Heinämäki correctly criticises the sub-division, observing that “in practice […] the ‘subsistence requirement’ seems to be a kind of main category, including ‘food’ by definition, whereas nutritional and cultural needs are subcategories to ‘Aboriginal Subsistence Whaling’, which are closely connected to each other […].”35 Apart from this, however, there are a number of problems relating to the definition of the three categories themselves or to their inter-relationship.

Commission – Special Issue 4 (1982), 79–86, available at: http://www.iwcoffice.org/cache/downloads/ 6mupcpeca4w8gw4o448os0wg0/RIWC-SI4-pp74-86.pdf (accessed on 24 October 2012). 32

Reeves (note 2), 77.

33

Ibid.

34

Gillespie (note 2), 106 et seq.

35

Heinämäki (note 2), 45.

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Indeed, the practice of States indicates that the submission of the required evidence proving ‘nutritional need’ of aboriginal peoples has frequently been very difficult to achieve.36 But more fundamentally, Heinämäki also points out that the distinction sought to be made by the IWC between subsistence and nutritional needs conflicts with the interpretation of the Human Rights Committee (HRC), which interpreted traditional livelihoods and means of subsistence (including traditional diet) as an integral part of indigenous culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). Additionally, the HRC allows the inclusion of some commercial elements within the definition of ‘aboriginal subsistence’ and, indeed, stresses the economic viability of a livelihood as a material criterion of the fulfilment of the provisions of Article 27 of the ICCPR.37

B. The Difference Between Commercial and Non-Commercial Whaling

Greenland’s aboriginal whaling is a good example of the great difficulties in making a clear division between commercial and non-commercial whaling. Several writers argued that the approximation of hunting and fishing activities with waged employment has contributed to a blurring of the distinction between commercial and noncommercial activities. A substantial part of the mattak (the skin and adhering blubber) from belugas and narwhals is sold by hunters and marketed in Greenlandic shops. The same applies to narwhal tusks which are sold either to visitors or in shops in Greenland (with a view to exporting them). It has been proponed that “whaling had become more commodity-based and commercialised as a result of the high monetary value of mattak in particular, and that as a result policy makers in Greenland have become engaged in ‘redefining’ of subsistence hunting.”38 However, other academics are of the opinion that sharing, gift-giving and household consumption of whale products in Greenland still predominate, and that cash transactions are of lesser importance.39

36

Ibid., 44 et seq.

Ibid., 45; International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR). 37

38

Reeves (note 2), 79.

39

Ibid., 79.

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C. Defining Aboriginal Subsistence Whaling under the IWC

According to the IWC, the objectives of aboriginal, subsistence whaling are as follows: (i)

to ensure that the risk of extinction is not seriously increased (the objective with the highest priority);

(ii)

to enable harvests in perpetuity appropriate to cultural and nutritional requirements;

(iii) to maintain stocks at the highest net recruitment level, and, if they fall below that, to ensure they move towards it.40 In general the IWC has identified four specific whaling operations as qualifying for the status of aboriginal, subsistence whaling: (i)

minke and fin whales (formerly also humpback whales) in Greenland;

(ii)

humpback whales in the Lesser Antilles (specifically at the island of Bequia, St. Vincent and the Grenadines);

(iii) bowhead whales (and formerly also gray whales) in the USA (Alaska); and gray whales in Russia (Chukotka); (iv) bowhead and gray whales in USA (Alaska).41 On the basis of the above objectives and criteria, aboriginal subsistence whaling is allowed at present for the following countries: (i)

Denmark (Greenland), fin and minke whales;

(ii)

Russian Federation (Siberia), gray and bowhead whales;

(iii) St. Vincent and The Grenadines (Bequia), humpback whales; (iv) USA (Alaska), bowhead and gray whales. It is the responsibility of national governments to provide the Commission with evidence of the cultural and subsistence ‘needs’ of their aboriginal peoples, while the 40 See IWC, Objectives of Aboriginal Subsistence Whaling, available at: http://iwcoffice.org/ aboriginal (accessed on 24 October 2012). 41

Ibid.

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Scientific Committee provides scientific advice on safe catch limits for such stocks, as two necessary requirements for the allocation of quotas.42 The IWC has for many years been developing the Aboriginal Whaling Management Scheme (AWMS), which is intended to include two elements: (i)

quota setting mechanism (which is already in place); and

(ii)

a supervision and control scheme in order to establish the future management of aboriginal subsistence whaling (the Aboriginal Whaling Management Procedure (AWMP), however, is not yet operational).

At present, aboriginal, subsistence quotas under the above mentioned mechanism are adopted for the period of 5 years.43 42

Ibid.

Catch limits for these stocks were agreed at the 2007 Annual Meeting, with the exception of the catch of West Greenland humpback whales which was agreed at the 2010 Annual Meeting: a total of up to 280 bowhead whales can be landed in the period 2008–2012, with no more than 67 whales struck in any year (and up to 15 unused strikes may be carried over each year). Eastern North Pacific gray whales (taken by native people of Chukotka and Washington State): a total catch of 620 whales is allowed for the years 2008–2012, with a maximum of 140 in any one year. East Greenland common minke whales (taken by Greenlanders): an annual strike limit of 12 whales is allowed for the years 2008–2012, with any unused quota available to be carried forward to subsequent years provided that no more than 3 strikes are added to the quota for any one year. West Greenland bowhead whales (taken by Greenlanders): an annual strike limit of 2 whales is allowed for the years 2008–2012, with an annual review by the Scientific Committee. Any unused quota can be carried forward to subsequent years so long as not more than 2 strikes are added to the quota for any one year. West Greenland fin whales (taken by Greenlanders): an annual strike limit of 16 whales is allowed for the years 2010–2012. However, at the 2010 Meeting, Denmark and Greenland agreed to voluntarily reduce further the catch limit for the West Greenland stock of fin whales from 16 to 10 each for years 2010, 2011 and 2012. West Greenland common minke whales (taken by Greenlanders): an annual strike limit of 178 whales is allowed for the years 2010–2012, with an annual review by the Scientific Committee. Any unused quota can be carried forward, so long as no more than 15 strikes are added to the quota for any one year. West Greenland humpback whales (taken by Greenlanders): an annual strike limit of 9 whales is allowed for the years 2010–2012, with an annual review by the Scientific Committee. Any unused quota can be carried forwards so long as not more than 2 strikes are added to the quota for any one year. Humpback whales (taken by St. Vincent and the Grenadines): for the seasons 2008–2012 the number of humpback whales to be taken shall not be exceeded; all catch limits available at: http://iwcoffice.org/conservation/catches. htm (accessed on 3 March 2012). The subject of the allocation of quotas for indigenous whaling in Greenland was a very contentious at the Panama City meeting of the IWC in 2012, during which the IWC rejected a request from Denmark for an increase in the whaling quota for Greenland to 1,300 whales over the next six years. The IWC voted 34 to 25 to reject the request. This proposal got 43 % support which was far short of the three-fourths majority needed according to the IWC rules. The US supported Greenland and aboriginal whaling, and the EU community expressed sympathy for the aboriginal peoples but it is claimed that Greenland’s whaling has been exposed as a commercial enterprise because whale meat were sold in restaurants and grocery stores and not distributed to aboriginal people; available at: http://www.savethewhales.org/STW%20E-Newsletters/8-12%20E-News.html 43

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Under the IWC, there is a marked limitation in the number of species of whales that have been singled out as eligible for aboriginal hunting, as evidenced by the inclusion of bowhead whales in the moratorium. This measure was objected to by the Inupiat peoples of the North Slope (Alaska). There has been a notable discrepancy in numbers of whales claimed to be in existence by Inupiat people and the IWC. The Technology Committee has confirmed the assertions of the Inupiat peoples.44 Eventually, the AWMS (including, as it will, the AWMP) will comprise both some general aspects common to fisheries (e.g. guidelines and requirements for surveys and data) as well as case-specific elements. It will also cover scientific and logistical aspects of aboriginal fisheries (i.e. inspection/observation). The IWC Plan for 2012 is allocated as a system of block quotas with internal allocations. Provisions include quota of 289 bowhead whales landed (by agreement the Alaska Inuptiat may take up to 255 whales, with 125 allocated to Russian aboriginal bowhead whalers). In each of these years, the number of bowhead struck may not exceed 67 whales; and up to fifteen unused strikes may be carried forward to the next year.45 At the 2002 meeting, the Scientific Committee completed its work with respect to Bering-Chukchi-Beaufort Seas stock of bowhead whales. It agreed a Strike Limit Algorithm (SLA) for this stock of whales and the scientific aspects of the scheme (i.e. how many bowheads can be taken in a sustainable manner). The SLA system was adopted by the IWC. Work on the SLA for gray whales was completed in 2004 and adopted by the IWC. However, the situation of the Greenlandic whaling for fin and minke whales has proved to be more complicated and at present requires more scientific research to be conducted in cooperation with Greenland’s scientists. Frequently, the discussion regarding the (accessed 24 October 2012). With the rejection, Greenland will not have the right to hunt whales after the end of 2012. Representatives from Denmark and Greenland are considering challenging the Commission’s decision. See http://www.terradaily.com/reports/EU_votes_down_Greenland_whaling_ 999.html (accessed 24 October 2012). 44 Scientific surveys indicated the Beaufort Sea bowhead whale population was very much depleted, with only about 800 whales surviving in 1977. Local hunters stated the whale population was about 7000. Using the new census methods the 1991 bowhead population was conservatively estimated to be in excess of 8000 whales, despite an annual harvest of between 20 and 40 whales over the past decade. The findings tended to confirm the Inuit 1977 population assessment of about 7000 animals. See Milton M. R. Freeman, The Nature and Utility of Traditional Ecological Knowledge, The Northern Perspective 20 (1991), available at: http://www.carc.org/index.php?option=com_wrapper&view= wrapper&Itemid=174 (accessed on 24 October 2012).

See National Marine Fisheries Services/Alaska Eskimo Whaling Commission, Bowhead Whale Subsistence harvest 2008–2012, available at: http://www.fakr.noaa.gov/protectedresources/whales/ bowhead/bowheadbrochure1208.pdf (accessed on 24 October 2012). 45

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aboriginal whaling quotas lead to very divisive discussions. An example of this is the 2009 meeting, where the primary issue was a discussion regarding a request for a catch of ten humpback whales for Greenland. The debate focused on the statement from the Scientific Committee as to whether such a catch would not harm the stock of these whales, and whether Denmark (on behalf of Greenland) had adequately made out the case showing the ‘needs’ of Inuit peoples for humpback whales, which are two necessary conditions for the allocation of quotas for aboriginal, subsistence whaling (supra). The Danish Government did not succeed in approval of its request. At present, there are three, main, current contentious issues in relation to aboriginal (subsistence) whaling, namely: (i)

ongoing hunts that were traditionally considered to be ‘aboriginal/subsistence’ but are at present undergoing an evaluation;

(ii)

small-scale shore-based hunts (which avoided international scrutiny but have been recently discovered and analysed);

(iii) defunct or suspended whaling operations by aboriginal peoples that have resumed (or are expected to resume in the near future);46 (iv) the question of so-called small cetaceans (such as the narwhal, contested by many States as outside the jurisdiction of the IWC).

IV. Aboriginal Whaling Outside the IWC A considerable amount of aboriginal whale hunting is carried on outside the purview of the IWC, by States which are not party to it, notably, such States as Equatorial Guinea, Indonesia, the Philippines and Canada. A brief examination of the conduct of these States will be done here. These examples evidence the difficulty that exists in assessing the impact of aboriginal whaling on the whale population, due to the lack of correct data. It should be noted that such States regulate aboriginal whaling unilaterally, thus avoiding the coordinative and multilateral processes conducted within the IWC.

46

Reeves (note 2), 73.

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A. Equatorial Guinea

In Equatorial Guinea, commercial humpback whale hunting started in the 18th century and continued until to 1959. Aboriginal whale taking was well established at Pagalu. There is unfortunately no available data as to the numbers taken since 1975.47

B. Indonesia

Aboriginal hunting has existed in Indonesia for centuries, in particular for sperm whales, but also for other species (i.e. baleen whales by the people of Lembata). Fishing, including the hunting of cetaceans, is the main source of subsistence for a large segment of the population of both Lamalera and Lamakera. However, again, there is a lack of information regarding whale hunting at Lamalera and Lamakera, which still continues.48

C. The Philippines

In the Philippines the origins of some of the cetacean hunting are recent. For example, in Selinog Island what were originally accidental catches of whales and dolphins became a deliberate practice which still continues. Whaling for Bryde’s and Pygmy Bryde’s whales, is carried out in the Pamilacan Island of the Philippines. The method applied in hunting is that of large hooks affixed onto the whale’s back by men jumping from the boat. Different whaling methods are used by the peoples of three villages on Camiguin Island, where whales are taken with a grommet harpoon and motor vessels. Hunting in this region has been largely opportunistic, and has been practiced there for at least three generations. The last documented catch of Bryde’s whales in the Philippines was in 1966. Fishery law (Order 185) prohibiting the killing 47 “Aboriginal whaling activity still persists in Pagalu (a small island south of São Tomé) until the present time, dedicated mainly to the capture of humpback whale calves [...], but no recent surveys have been conducted.” See Cristina Brito/Cristina Picanço/Inês Carvalho, Small cetaceans off São Tomé (São Tomé and Príncipe, Gulf of Guinea, West Africa): Species, sightings and abundance, local human activities and conservation, IWC – SC/62/SM8, available at: http://archive.iwcoffice.org/_documents/ sci_com/SC62docs/SC-62-SM8.pdf (accessed on 26 October 2012). 48

Reeves (note 2), 87.

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of dolphins was extended to all cetaceans. In this area the exact nature of the cultural dimension of aboriginal whaling in these areas has not been well documented.49

D. Canada

Canada is not a party to the ICRW, having withdrawn from it in 1982;50 however, Canada has continued aboriginal whaling since its departure and has shown reluctance to provide any statistics regarding whaling.51 Since its withdrawal from the Convention, hunting for whales in Canada has been regulated by national law. Aboriginal whale hunting is only permitted for Inuit (in the eastern Arctic) and by Inuvialuit (in the western Arctic). It is governed by a number of national laws (‘Acts’). In the eastern Arctic whale hunting (for bowheads) occurs in the Nunavat Settlement Area, which is a self-governing Inuit territory within Canada. Quotas are set by the Nunavat Wildlife Management Board (NWMB) under the 1993 Nunavat Land Claims Act, by the Committee on the Status of Endangered Life in Canada. The NWMB has a mandate under Bill C-133 to adopt all decisions about the management of wildlife in Nunavat. The Board consists of four Inuit and four government representatives, plus a Chairperson. Canada’s Department of Fisheries and Oceans (DFO), the Hunters and Trappers Organisation, and the Regional Wildlife organisations are co-management partners. The DFO acts only in an advisory capacity to the NWMB and to the hunting communities, advising on sustainable hunting levels. The quotas for hunting whales used to be set on the basis of Marine Mammals Protection Act by the DFO. However, a new decentralised system was put in place taking the form of ‘community-based management’. Under the new system, the quota system has been lifted and the local Hunters and Trappers Organisations (HTO) manage the hunt. They have placed harvest limits on communities using a set of rules or by-laws which are developed by the local HTO. These set of rules or by-laws, address the conservation and management of the whale population, the reduction of waste, hunter education and safety. The HTO are commissioned to collect information on the number of whales wounded, killed and not landed. Inuits used heavier 49

For all information, see ibid., 86–89.

50

On Canada see Milton M. R. Freeman et al., Inuit, Whaling and Sustainability (1998), 62.

51

Reeves (note 2), 90.

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bore rifles to kill the whales after a number of floats had been attached by harpoons. However, animal welfare, governed in Canada by Section 446 of the Criminal Code, does not provide for routine inspections of animal care or enforcement of maintenance standards. To fill these lacunae, an addition has been proposed to the Marine Mammal Regulations.52 As Reeves notes: [t]he legal status of whaling by Inuit in Canada was ambiguous. It was implicitly understood, at least by some Inuits and some bureaucrats, that a licence to hunt from the federal government was required, yet the documented killing and wounding of Bowheads in eastern Canada through the 1970s […] and 1980s […] remained outside any formal management context.53

In western Arctic Inuvialuit have an ancient tradition of hunting bowheads. The management strategy was created by the 1984 Inuvialuit land management agreement (Inuvialuit Final Agreement) and developed jointly by the Canadian Department of Fisheries and Oceans, the Fisheries Joint Management Committee and the Aklvik Hunters and Trappers Committee relies on the IWC data. Reeves described the aboriginal whaling of bowhead situation as follows: [i]n effect, Canada was intent upon unilateral management of the Bowhead hunt while at the same time depending upon data, analysis and management advice generated within the IWC (primarily owning to the research programme of the North Slope Borough in Alaska).54

E. Conclusion

The generally held view is that aboriginal whaling involves less divisive issues than commercial whaling. However, as evidenced above, detailed analysis of aboriginal whaling leads to the conclusion that it is also very problematic and involves many complicated issues; not only limited to legal aspects but also ethical in nature. The lack of a clear-cut definition of what constitutes aboriginal whaling; the ongoing disputes regarding the number of whale stocks delineated for aboriginal whaling, result in the inability of the IWC to manage aboriginal whaling effectively, despite its efforts for an orderly regulation. Even more problematic is the facet of aboriginal 52

Reeves (note 2), 79.

53

Ibid., 91.

54

Ibid., 90.

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whaling outside the IWC, given the dearth, in many cases, of statistical data, and its unilateral regulation by States.

V. Contentious Cases Illustrating How Aboriginal Whaling Affects the Environment The case-studies concerning the Makah tribe and Inuit in Greenland clearly indicate the complex issues regarding aboriginal whaling (internationally, within the IWC and nationally in the US); and proves that the definition of ‘aboriginal cultural needs’ can be a very discordant. This however, is not a straightforward situation as there are a host of unresolved questions, such as the number of whales to be allocated for aboriginal whaling, and what is the best, humane manner of taking them? Aboriginal whaling, is perhaps not quite as contentious as commercial or scientific whaling; however, closely scrutinised, it proves to be nearly equally problematic, divisive and largely unregulated. A. The USA: Case Study of the Makah Indians (State of Washington)55

Whaling by Makah Indians is one of the most controversial cases of aboriginal whaling. It has been the subject of much discussion at the IWC and was also the subject of many legislative regulations and legal debates within the United States (US). It still, however, remains controversial in a number of respects: (i)

it is an instance of a claim (there are others) to resume aboriginal whaling after a period during which, for different reasons that whaling had been abandoned; in this case, a claim by the Makah Indians to resume whaling after a 70 year hiatus;

(ii)

there were also doubt whether their whaling was purely aboriginal subsistence whaling or was also commercial;

(iii) the claim raised questions concerning the ethical nature of the resumption of aboriginal whaling; 55

For an in-depth discussion, see Firestone/Lilley (note 2), 177–219.

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(iv) it also raised the issue as to whether aboriginal whaling constitutes a cultural exemption.56 In general, the US first incorporated the IWC’s regime into domestic law in the 1971 Pelly Amendment to the Fisherman’s Protective Act of 1967. On the basis of this amendment, when the Secretary of Commerce determines that the nationals of a foreign country are diminishing the effectiveness of an international fishery conservation program (including the IWC’s program), the Secretary shall certify this fact to the President. The President then has the discretion to ban importation of fishing products from the offending country. For example, President Barack Obama informed the US Congress on 15 September 2011 of his decision not to apply trade measures to Iceland for commercial whaling in defiance of the IWC ban on such activity.57 The US also governs aboriginal whaling by Alaska Natives via the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). Whaling by aboriginal peoples is allowed under US law to the extent that it is approved by the International Whaling Commission.58 The ICRW limits how many bowhead or gray whales aboriginal groups may harvest. However, no domestic law restricts harvest numbers on whales except specific regulations under the ESA or MMPA (provided the harvest is for non-wasteful subsistence use).59 The Makah Indian tribe is the only indigenous group in the US with a treaty specifically reserving the right to hunt whales. According to the US Supreme Court ruling in US v. Dion, a treaty right cannot be extinguished by the absence of the exercise of this right.60 For the Makah, the inclusion of this right in a treaty, even if no whales are taken, means that this right remains enforceable (providing that the treaty is in force and the right has not been abrogated).

56

Heinämäki (note 2), 46–52.

Marcie Berry, Iceland, Whaling and the Pelly Amendment, 26 January 2011, available at: http:// www.hsi.org/issues/whaling/facts/iceland_whaling_and_pelly.html (accessed on 17 May 2012). 57

58

Firestone/Lilley (note 2), 197–200.

59

Ibid.

US Supreme Court, US v. Dion, 476 U.S. 734 (1986), cited in: Jennifer Sepez, Treaty Rights and the Right to Culture, Native American Subsistence Issues in US Law, Cultural Dynamics 14 (2002), 143, 150. 60

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The Makah indigenous peoples live in the State of Washington and traditionally hunted for gray whales for centuries (commencing 1500 years ago).61 They ceded certain lands to the US on the basis of the 1855 Treaty of Neah Bay between the Makah and the US Government. This treaty also guaranteed their rights to hunt for seals and whales and to fish in a reservation they were relocated to. Around the turn of the 20th century, the Makah peoples voluntarily ceased hunting for gray whales due the depletion of their stocks, caused mainly by commercial hunting. The absence of hunting for whales had an adverse impact on the economy of the Makah peoples. When the eastern Pacific gray whale was removed from the endangered species list in 1994 the Makah tribe began preparations to resume hunting, as they alleged, for nutritional and cultural reasons in consultation with the National Marine Fisheries Service.62 They also claimed that the resumption of whaling would enable them “to instil in the tribe the values traditionally associated with whaling.”63 However, the plan to resume this activity after a 70-year hiatus was met with fierce opposition in the IWC and in the US Congress; and also by some of the Makah indigenes themselves (acting as observers at the meeting of the IWC). The Makah people argued that the resumption of whaling had not been supported by all Makah peoples. Furthermore, due to the change in the IWC policy (following the bowhead crisis)64 from the general exemption for aboriginal subsistence to the policy based on the requirement of ‘needs’, the Makah Indians’ rights to aboriginal whaling were not automatically granted by the IWC.65 Jovana J. Brown, It’s in Our Treaty: the Right to Whale, available at: http://nativecases.evergreen. edu/docs/Makah_Case_Study_rev7_25_08.doc (accessed on 13 November 2012). 61

62

Sepez (note 60), 149.

63

Firestone/Lilley (note 2), 185.

In the 1970s bowheads were considered an endangered species. In the height of the bowhead crisis, the IWC took the following Resolution concerning the US request for bowhead hunting for the Makah Indians: the height of the Bering-Chukchi-Beaufort ‘bowhead crisis’ in 1979 (IWC, 1980) in which the active paragraph relevant to the USA bowhead whale hunt stated: “[The Commission intends] that the needs of the aboriginals of the United States shall be determined by the Government of the United States of America. This need shall be documented annually to the Technical Committee, and shall be based upon the following factors: 1. importance of the bowhead in the traditional diet, 2. possible adverse effects of shifts to non-native foods, 3. availability and acceptability of other food sources, 4. historical take, 5. the integrative functions of the bowhead hunt in contemporary Eskimo society, and the risk to the community identity from an imposed restriction of the bowhead; and 6. to the extent possible, ecological considerations,” as cited in Greg Donovan (IWC Secretariat). Some thoughts on facilitating the process to agree catch limits for aboriginal subsistence whaling (ASW), available at: http://www.iwcoffice.org/cache/ downloads/7iqx580699wcswck4sw08oc80/63-13.pdf (accessed on 13 November 2012). 64

65

Sepez (note 60), 149 et seq.

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As a result, the IWC decided that the Makah request did not fulfil the requisite conditions (i.e. subsistence needs and continuing traditional dependence) for aboriginal subsistence whaling. In 1997, the US Government brought the case for a second time on behalf of the Makah before the IWC. This time, however, the US submitted a joint request together with the Russian Federation (which was acting on behalf of the Chukotka peoples). It was in fact a trade-off between the US and the Russian Federation. The US argued the case for the resumption of Makah whaling on the basis of the rights granted by the 1855 Treaty of Neah Bay. The IWC agreed to this renewed request and set the limit of 620 catches for the period of 1998 to 2002. Their resumption of hunting, however, was strongly objected to by the environmental NGOs, which contended that after the resumption of hunting for whales, the Makah peoples would engage in commercial activities, selling meat to Japan (allegations which were strongly denied by the Makah peoples).66 The opponents of the resumption of whaling further argued that whaling was not necessary for subsistence of the Makah, noting that they had lived for a long period of time without whale meat. Again, the Makah opposed this contention, insisting that whale meat was a necessary part of their subsistence, despite almost 100 years break.67 There was also opposition to the argument that the resumption of whale hunting would contribute to the cultural revitalization of the Makah. In this respect, the Makah argued that resumption of whaling would enable them “to instil in the tribe the values traditionally associated with whaling.”68 Opponents also felt that if the Makah claim was accepted, other claims would be made on the same basis. Additionally, some argued that such whaling would give a boost for Norwegian and Japanese claims for support of their own whaling traditions. Opposition to the Makah Indians resumption of whaling were also based on environmental grounds. For example, two NGOs69 wrote to the US Department of Commerce (DOC) and to the National Oceanic and Atmospheric Administration (NOAA) stating that their departments had breached the National Environmental Policy Act (NEPA) because they authorised Makah whaling without first applying 66 Matthew Weinbaum, Makah Native Americans vs. Animal Rights Activists, available at: http:// www.umich.edu/~snre492/Jones/makah.htm (accessed on 13 November 2012). 67

Firestone/Lilley (note 2), 186.

68

Ibid., 185.

69

Australians for Animals and BEACH Marine Protection.

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NEPA or making an Environment Impact Statement (EIS) and Environmental Assessment (EA). In response, a draft EA was issued and a new agreement between NOAA and the Makah was entered into; and the NOAA issued a final EA indicating a finding of No Significant Impact.70 The coalition opposed to the resumption of whale hunting by Makah Indians, is lead by the Sea Shepherd Society; and altogether, approximately 250 animal welfare organisations and 27 conservation organisations have opposed Makah hunting. Some of these organisations filed a suit in the US courts. The decision of the Court71 stated that the EA was made too late in the decision making process, and that whale hunting was already authorised by a treaty. The NOAA had to abandon the agreement with the Makah in the light of the Court’s decision. In 2001 a new draft EA was issued; and the same year the NOAA established the quota of five landings of gray whales for 2001 and 2002. This decision was again challenged by the anti-whaling lobby. The Court72 admitted that the Makah hunt would affect the overall California gray whale population. The dispute in essence was over the localised effect on the whole whale population in the area of the hunt. The Court required a full application of the EIS protocol in the light of the ambiguity and uncertainty surrounding these disputed issues, i.e. regarding the failure of the IES to address fully the effect of the whaling permit on other Native Americans that might wish to hunt, and also of the effect on other IWC members. According to the other Court decisions, the situation concerning the Makah whale hunting rights has not yet been solved.73 The claim of the Makah tribe was supported by some scholars74 who were of the view that Makah should not be deprived of their right to hunt whales. The latest decision of the US Government is to scrap a seven-year-old draft environmental study on the impact of Makah tribal whaling and write a new impact statement in light of substantial new scientific information. The new information is that the gray whales the tribe wants to hunt off the Washington coast may need to be managed separately from the overall population: about 20,000 gray whales 70

Firestone/Lilley (note 2), 198.

Lawsuit No. 1: United States Ninth Circuit Court of Appeals, Metcalf v. Daley 214 F.3d 1135 (9th Cir. 2000) and id., Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000); Lawsuit No. 2: id., Anderson v. Evans 314 F.3d 1006 (9th Cir. 2002); Lawsuit No. 3: id., Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004); see also: Brown (note 61). 71

72

Ninth Circuit Court of Appeals, Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004).

73

Firestone/Lilley (note 2), 201–207.

74

Sepez (note 60), 143–159; Reeves (note 2), 71–106.

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that migrate up and down the West Coast.75 Arguably, one of the causes of the unresolved situation concerning the Makah tribe’s right to hunt gray whale is the concern over environmental issues; and, indeed, in this case environmental considerations (the preservation of gray whales stocks) clashed to some extent with the right to cultural diversity. It would, however, be both imprudent and simplistic to attempt to draw general conclusions based on this single case. According to the US courts, environmental obligations were not fully implemented, therefore, it can be said that the right of the Makah people was overruled on the basis of a legal technicality (the failure to correctly apply EA), not on any informed discussion balancing the right to cultural diversity (whaling) and obligations stemming from the duty of environmental protection. The question thus arises, what would be the outcome of the case if the application of the EA were properly followed? It is possible that, if there had been a favourable result concerning application of the EA, Makah hunting for gray whale would have been allowed. B. The Case of Greenland76

In 1999 Greenland began to draft its own regulations on the protection of the beluga and narwhal whales. Hunts were to establish annual and regional quotas, prohibit killing of females and juveniles, prohibit hunting using nets, and set trading quotas for meat and blubber (though no mention was made of tusks, which are the most sought-after part of narwhal). However, up to 2004, the catches of both types of whale were not regulated by any legal act. In 2004, the Home Rule of Greenland (which preceded a system of self-government, which entered into force in 2004), adopted a new Executive Order regarding quotas, the Greenland Home Rule Executive Order No. 2 of 12 February 2004. 75 This decision is based on a study by Canadian scientists (Tim Frazier and Jim Darling) who state that a separate, genetically distinct Pacific Coast Feeding Group of about 200 whales regularly feeds in areas that include waters between northern California and south-eastern Alaska during the summer and autumn. According to NOAA spokesman (Brian Gorman) additions also will include information from a separate, ongoing NOAA review of gray whale behaviour resulting from the Canadian study and will be published in early fall. See Paul Gottlieb, Restart of whaling study disappoints Makah chairman, Peninsula News, available at: http://www.peninsuladailynews.com/article/20120525/news/305259989/ restart-of-whaling-study-disappoints-makah-chairman (accessed on 13 November 2012). 76 Canada which is not a member of the IWC regulates the hunt for beluga and narwhal in the way it does for other types of whaling (see supra, IV, D).

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In June 2004, local quotas were set as from 2005. No hunting quotas were set for Eastern Greenland, which is a part of the island where professional leisure hunters may hunt for narwhals. The Executive Order stated that the total harvest for narwhals in 2004 to 2008 should not exceed 748 narwhals annually. There are no closed seasons; but juveniles and accompanying females are protected. However, the hunting quotas for 2004 were three times higher than that recommended by marine biologists. The same applies to the hunting of beluga. For example, the estimated catch for 1998 and 1999 harvests was to reach 700 a year; but in 1998 the catch actually reached 744. As Sejersen said: [t]hese large annual harvests, combined with the alarming scientific population estimates, have also caused the Greenlandic/Canadian Joint Commission on the Conservation and Management of Narwhal and Beluga (JCCMNB) to define the Greenlandic hunt as nonsustainable, and the Joint Commission has urged the Home Rule government to intervene immediately.77

The Home Rule government attempted to intervene and regulate this hunt; but due to the cultural and economic importance of beluga, this was not completely successful. However, one of the reasons given by the Government of Greenland to hunt larger than recommended quotas was the right of the Inuit peoples to cultural diversity. Demands from Denmark on behalf of the Inuits for an increase in humpback whale quotas by the IWC have been met with opposition from EU members, in the past and presently at the 64th Annual Meeting of the IWC, causing additional tensions.78 It was observed that the quota granted by the IWC specified that the hunt could not begin until mid-October 2010. However, Greenland has announced that the hunt will begin immediately, in violation of the permit.79 Jones’s observations confirm the conflicting nature of aboriginal whale hunting and cultural diversity issues: 77 Frank Sejeresen, Hunting and Management of Beluga Whales (Delphinapterus leucas) in Greenland: Changing Strategies to Cope with New National and Local Interests, Arctic 54 (2001), 431, 434.

See Richard Black, Greenland denied on whale catch, BBC News website, 26 June 2008, available at: http://news.bbc.co.uk/1/hi/sci/tech/7476652.stm; Frank McDonald, Denmark’s whaling request rejected, The Irish Times, 6 July 2012, available at: http://www.irishtimes.com/newspaper/world/ 2012/0706/1224319511211.html (all accessed on 20 November 2012). 78

79 Hardy Jones, Greenland Begins Humpback Whale Hunt, available at: http://www.huffington post.com/hardy-jones/greenland-begins-humpback_b_693054.html (accessed on 8 March 2012).

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Aboriginal hunts of marine mammals are a highly complex ethical issue. It is true that the Inuit and their cousins have traditionally thrived on what they call natural food, caribou, seal, beluga, whales, and other marine mammals. They do not have much money with which to draw food from the cash economy, and they do not fare well on the kind of food eaten by Europeans and Americans. But it turns out that Greenland’s hunt for whales is as much about profits as it is about aboriginal rights. I discovered in Nuuk that Greenlanders are not observing the terms of the IWC quota that permits the hunt be conducted solely for aboriginal subsistence purposes. My final discovery came on the last day of the ICC. A young Inuit from eastern Greenland told me pleadingly that his village needed to take whales outside the IWC quota. “We steal them,” he told me. “What species of whale are you taking?” I asked. “Any kind that the elders tell us,” came his reply. Humpbacks have been missing from Greenlandic waters for sixty years, hunted out by whalers. Their population has now recovered to the extent that explorer whales have made their way back to ancient feeding grounds. This should be cause for joyous celebration – not a dreadful slaughter.80

VI. Human Rights Issues: The Cultural Element in Aboriginal Whaling Heinämäki noted that the recognition by the IWC of the cultural value of subsistence whaling indicates that the contemporary rules of international law acknowledged as well established the status of the traditional livelihood of indigenous peoples.81 Heinämäki further suggests that, from the legal point of view, indigenous (aboriginal) whaling should be treated as lawful if it complies with the IWC measures and guidelines. However, she observes that growing environmental pressures (such as climate change) may eventually force aboriginal peoples to abandon their whale hunting.82

A. Article 27 of the ICCPR

Whaling rights of aboriginal peoples are supported by Article 27 of the ICCPR. This Article actually relates to minorities generally, but its application to indigenous peoples is of fundamental importance. The HRC adopted in 1994 the General Comment No. 23, which referred to the applicability of this Article to indigenous peoples: 80

Ibid.

81

Heinämäki (note 2), 45 et seq.

82

Ibid., 57.

446 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 With regard to exercise of the cultural rights protected under Article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing and hunting and the right to live in reserves protected by law. The enjoyment of these rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.83

There are several other instruments and comments dealing with the meaning of culture. In the General Comment 13, the Right to Education, the Committee on Economic, Social and Cultural Rights (CESR) observed that the UN Covenant obligates States to provide education that should be of good standard, relevant and culturally appropriate.84 In relation to minorities, the 1993 Vienna Declaration and the Programme of Action confirmed the right to of minorities to enjoy freely their culture.85 However, as the practice of the IWC indicates, what it understands under culture and the method of aboriginal (subsistence) whaling is not entirely clear and perhaps not always in line with the jurisprudence of the HRC. The difficulties of placing whaling within the culture of indigenous peoples also result partly from general confusion as to what is understood by culture. From the point of view of philosophers and cultural anthropologists, the formulation of culture in many instruments is very questionable in several aspects. Holder is of the view that there is a tendency to approach culture “as a type of good – an object of state of affairs, valuable for its potential to be consumed, experienced or used.”86 Perhaps the better way of approaching cultural rights, reflecting the true position of indigenous peoples is to treat them as an

83 HRC, General Comment No. 23 on the Rights of Minorities (Art. 27), 8 April 1994, UN Doc. HR1/Gen/1/rev.3, (1994) para. 7. 84 CESCR, General Comment No. 13 on the Right to Education, 8 December 1999, UN Doc. EIC 12/1999/10 (1999). 85 “The persons belonging to minorities have the right to enjoy their own culture, to profess and practice their own language in private and in public, freely and without interferences or any way of discrimination,” see World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, UN Doc. A/CONF.157/23 (Part I), para. 19. See also Rosemary J. Coombe, Culture: Anthropology’s Old Vice or International Law’s New Virtue?, 79 Proceedings of the American Society for International Law Annual Meetings (1999), 261.

Cindy L. Holder, Culture as an Activity and Human Right: An Important Advance for Indigenous Peoples in International Law, Alternatives 33 (2008), 7, 10, available at: http://web.uvic.ca/~ clholder/pdfs/holder%20alternatives.pdf (accessed on 31 August 2012). 86

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expression of their distinctiveness, inherently belonging to them on the grounds of their livelihood. As Holder observes: Consequently, peoples must be allowed to live in accordance with their decisions and values not because the distinctness of a group’s life is in itself valuable, but because it is not possible to respect cultural rights without respecting the distinctive forms of living that peoples will develop when their rights are exercised.87

The use of modern means of hunting is one of the more contentious issues concerning aboriginal whaling. As has already been noted, the 1931 Geneva Whaling Convention contained a technology criterion in its definition of aboriginal whaling. But, as Reeves observes, it was not fully noted at the time that the strict application of this criterion would rule out the hunting of bowheads by Alaskan and Chukotkan Inuit peoples, who had incorporated shoulder guns and darting guns in their hunts since the 19th century; and the whaling of Gray Whales by Chukotkans who were, by the 1930s, using motorboats to drive young whales into shallow waters, and guns to scare off or wound the mothers associated with these young animals.88 There have been a number of cases in which the HCR has clarified the rights of indigenous peoples regarding Article 27,89 addressing, in particular, the issue of the use of modern technology within traditional indigenous hunting activities. Thus, in the 1992 Länsmann case, the HCR stated that modern practice adopted by indigenous peoples did not prevent them from invoking Article 27 of the ICCPR: Article 27 does not only protect traditional means of livelihood on national minorities, as indicated in State Party’s submission. Therefore, that the authors may have adopted this method of reindeer herding over the years and practice it with the help of modern technology, does not prevent them from invoking of Article 27 of the Covenant.90

This was confirmed in the Aspirana Mahuika case, where it was stated that: “[t]he right to enjoy one’s culture cannot be determined in abstracto, but has to be placed in context. In particular, Article 27 of the ICCPR does not only protect traditional 87

Ibid., 11.

88

Reeves (note 2), 97.

See, e.g., HRC, Ilmari Länsman et al. v. Finland, Views adopted on 26 October 1994, Communication No. 511/1992, UN Doc. CCPR/C/57/1, 75–85; id., Jouni E. Länsman et al. v. Finland, Views adopted on 30 October 1996, Communication No. 671/1995, UN Doc. CCPR/C/58/D/671/ 1995. 89

90

Id., Jouni E. Länsman (note 88), para. 9.3.

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means of livelihood of minorities, but allows also for adaptation of those means to modern way of life and ensuing technology.”91 The contemporary approach of the IWC to the use of technology follows the stand adopted by the HRC, one of the reasons being that the modern means of killing are more humane (even though, it must be noted, many also cause increase in depletion of whale stocks).92

B. Other International Instruments

There is a host of other instruments at the international level (binding and nonbinding) which relate to the cultural diversity of indigenous peoples.

1. United Nations Declaration on the Rights of Indigenous Peoples 2007 The 2007 UN Declaration on the Rights of Indigenous Peoples93 states in its Preamble that “respect for indigenous knowledge, culture and traditional practices contribute to sustainable and equitable development and proper management of the environment” (paragraph 10 of the Preamble). Article 25 of the Declaration reads as follows: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal and other resources which they have traditionally owned or otherwise occupied or used and to uphold their responsibilities to future generations in this regard.

91 Id., Aspirana Mahuika et al. v. New Zealand, Views adopted on 27 October 2000, Communication No. 447/1993, UN Doc. CCPR/C/70/D/547/1993, para. 9.4. 92 Report of the Panel Meeting of Experts on Aboriginal/Subsistence Whaling, reprinted in: International Whaling Commission, Aboriginal/Subsistence Whaling (with special reference to the Alaska and Greenland fisheries), Reports of the International Whaling Commission – Special Issue 4 (1982), 7–9, available at: http://iwcoffice.org/cache/downloads/7h78clbatfggcw8gg00w8wo4o/RIWC-SI4-pp 1-33.pdf (assessed on 11 February 2013). See also Reeves (note 2), 98. 93 UN Declaration on the Rights of Indigenous Peoples, 6A Res 61/295 of 13 September 2007, Annex.

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Further Article 29 states that: 1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. 2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

2. The 1989 169 ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries The 1989 169 ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (169 ILO Convention)94 links the cultural identity of indigenous peoples with environmental protection as shown in the Convention’s Preamble, where it refers to “distinctive contributions of indigenous and tribal peoples to cultural diversity and social and ecological harmony of humankind and to international co-operation and understanding.” Article 4 of this Convention provides that “special measures shall be adopted in appropriate form safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.”

3. Instruments Adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO) It may be noted as well that, UNESCO, in 2001 adopted the Universal Declaration on Cultural Diversity,95 and in 2005 adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.96 94 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, UNTS 3 28, 247. 95

UNESCO Universal Declaration on Cultural Diversity, 2 November 2001, ILM 41, 57.

UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, entered into force on 18 March 2007, available at: http://unesdoc.unesco.org/ images/0014/001429/142919e.pdf (accessed on 11 February 2013). 96

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a) The Universal Declaration on Cultural Diversity 2001 The 2001 Declaration states in Article 1 that: Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.

Another important provision is Article 2, which sets out the principles underlying cultural diversity: In our increasingly diverse societies, it is essential to ensure harmonious interaction among people and groups with plural, varied and dynamic cultural identities as well as their willingness to live together. Policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society and peace. Thus defined, cultural pluralism gives policy expression to the reality of cultural diversity. Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life.

This Declaration approaches cultural diversity within the context of human rights in Article 4: The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.

b) The Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 The 2005 Convention adopts a similar approach, and refers in its Preamble to cultural diversity as “form[ing] a common heritage of humanity [which] should be cherished and preserved for the benefit of all.” In Article 4 the Convention defines cultural diversity in the following manner: For the purposes of this Convention, it is understood that: […] ‘Cultural diversity’ refers to the manifold ways in which the cultures of groups and societies find expression. These

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expressions are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used.

According to Article 2 this Convention also placed cultural diversity within the context of human rights: Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.

C. Conclusion

Cultural diversity (or multiculturalism), is one of the most complex issues in law and philosophy, both at the international and national levels;97 and a full presentation of the very controversial theory of multiculturalism exceeds the framework of this article. Multiculturalism is never “risk-free, but where these fortunate circumstances exist, it becomes la belle risque – a modest and manageable risk worth taking in the pursuit of a fairer and more inclusive society.”98 Kymlicka noted that in some societies (but not in the Western democracies), that there has been to a certain degree a retreat from multiculturalism, especially directed towards Muslim immigrants, and there has been “a reassertion of more assimilationist of exclusionary policies.”99 According to the same author, in the case of indigenous peoples, however, there has been a trend towards a greater recognition of customary law and self-government rights, without any retreat or backlash. This culminated with the adoption of the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Nonetheless, certain indigenous practices have been viewed as tied to ideas of cultural conservatism, as examples of communitarianism and traditionalism, leading to limitations on individual freedom 97

See Will Kymlicka, Multicultural Citizenship (1995); id., Multicultural Odysseys (2007).

98

Id., Multicultural Odysseys (2007), 21.

99

Ibid., 52.

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within a group,100 expressing a desire for cultural isolation.101 It may also be argued that such contested practises are redefined as ‘sacred obligations’ in order to silence or ‘delegitimize’ group members who want to change these practices.102 Such views may strengthen the case against aboriginal whaling; in particular, in the case of indigenous peoples who resumed aboriginal whaling after abandoning it over many years (see the case of the Makah tribe above). In contrast, other views emphasise that, unlike Western attitudes towards nature (recognised as self-destructive and unsustainable), indigenous peoples may, in the same context, even be inspirational and provide guidance.103

VII. Aboriginal Whaling and Possible Conflict with other Fields of International Instruments In its early days, the legal regime relating to international regulation of whaling in general, though as we have seen above, complex and often contentious within itself, existed within a relatively simple context of general international rules, by which it was largely unaffected. This is no longer so. There have been a number of significant developments in international law which impact, or may impact, on rights and obligations relating to whaling. This is particularly the case in relation to aboriginal whaling, regulation of which, quite apart from its own inherent complexities and uncertainties, now exists within a quite complex nexus of rights and obligations, stemming from a number of developments in other fields of international law. This nexus is complex in the sense that, while some of the new developments tend to enhance the rights of indigenous peoples (for instance rights recognised under Human Rights law, and as a result of the special status now accorded to indigenous peoples), others (for instance relating to obligations in respect of protection of the environment and general preservation of species (biodiversity obligations), the concept of sustainable development etc.) may impose new obligations on indigenous peoples, or at least restrictions on their freedoms. 100

Ibid., 149.

101

Id., Multicultural Citizenship (1995), 103.

102

Id., Multicultural Odysseys (2007), 149 et seq.

103

Id., Multicultural Citizenship (1995), 121.

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A. International Environmental Law and Protection and State Obligations

The development of international law has lead to the emergence – and to a robust evolution – of the norms of international environmental law. The protection of the environment has been the subject-matter of many Multilateral Environmental Agreements (MEAs) and resulted in the emergence of certain norms of customary international law, such as the prohibition of transboundary pollution. States therefore are obliged (on the basis of both MEAs and customary international law) to protect the environment. One such area of environmental protection is that of biodiversity which is covered by many international agreements, including global MEAs: the 1992 Convention on the Protection of Biodiversity (CBD),104 and the 1973 International Convention on the Trade in Endangered Species of International Fauna and Flora (CITES).105 There are also conventions which recognise the aspect of common interest in the preservation of biodiversity, which are applicable to aboriginal whaling. The 1979 Bonn Convention on the Migratory Species of Wild Animals (CMS)106 says in its Preamble that “wild animals in their innumerable forms are an irreplaceable part of the earth’s natural system which must be conserved for the good of mankind” and that “[e]ach generation of man holds resources of the earth for future generations and has an obligation to ensure that this legacy is conserved and, where utilised, is used wisely.” Similarly, the 1979 Bern Convention of European Wildlife and Natural Habitats,107 treats fauna and flora as ‘a natural heritage’ to be handed down to ‘future generations’. The same provision is included in the 1982 World Charter for Nature.108 It may also be remembered that Article 25 of the 2007 Declaration on Indigenous Peoples’ Rights also makes an invocation to indigenous peoples to “uphold their responsibilities to future generations in this regard” (i.e. environmental protection). There is, therefore, a potential conflict between obligations stemming from the MEAs and the right to aboriginal whaling, based on the ICRW.

104

Note 4.

International Convention on the Trade in Endangered Species of International Fauna and Flora, 3 March 1973, UNTS 993, 243 (CITES). 105

106

Convention on the Migratory Species of Wild Animals, 23 June 1979, ILM 19, 15 (CMS).

107

Convention of European Wildlife and Natural Habitats, 19 September 1979, ETS No. 104.

108

UN World Charter for Nature, 28 October 1982, 6A Res. 37/7, Annex.

454 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 B. Conflicts Between International Instruments and Agreements

The views above, held according to obligations of an environmental nature, are not the only ones which may be in conflict with the right to aboriginal whaling. It has been asserted that human rights (the right to cultural diversity, see above), may take precedence over obligations of environmental protection (on this see further the section on UNESCO Universal Declaration on Cultural Diversity below).109 The problem of these potential conflicts is part and parcel of a wider issue of conflicts in international environmental law, and may be compared to those concerning the protection of the environment, on one hand, and the promotion of free trade, on the other.110 The issue of conflicts between obligations deriving from environmental treaties is very complicated. As Matz explained, the ecological and legal interdependence of agreements is one of the reasons why international environmental law is subject “to conflicts, contradictions and doubling of efforts.”111 Matz also distinguishes several possible areas of conflict between instruments, namely: in international instruments having different legal natures; instruments with a different geographical scope; between agreements with different points of view or with different objectives; between original and modified agreements; and between treaties that in particular regulate, in principle, the same subject-matter but which have different parties.112 There are very many possible variations of conflicts between environmental treaties: they can have similar approaches but differ in regard to their aims and political objectives; and, in a more fundamental case, they may not even be based on similar foundational approaches. It is very difficult to establish clear-cut differences between various types of conflict.113 There are instances of international environmental agreements in which the ICRW is expressly mentioned as having priority in matters relating to whaling, e.g., the Convention on the Conservation of

109

Bowman (note 15), 439–443.

Rüdiger Wolfrum/Nele Matz, Conflicts in International Environmental Law (2003), 9. On this issue see also Malgosia Fitzmaurice/Olufemi Elias, Contemporary Issues in the Law of Treaties (2005), 314–348. 110

111

Wolfrum/Matz (note 110), 4.

112

Ibid., 6.

113

Ibid., 7, 12.

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Antarctic Marine Living Resources (CCAMLR).114 Article VI of the CCAMLR reads as follows: “[n]othing in this Convention shall derogate from the rights and obligations of Contracting Parties under the International Convention for the Regulation of Whaling […].” As highlighted by Wolfrum, such a clause establishes the priority of the ICRW but does not rule out the application of the CCAMLR to whales in a way which is compatible with the rights and obligations under the ICRW. In practice the CCAMLR becomes operational when either the ICRW does not cover certain species or it failed to reach agreement on an issue. Moreover, according to Article IX paragraph 4 of the CCAMLR, the Convention has to take full account of any relevant measures or regulations established or recommended by existing fisheries commissions, which also includes the IWC.115 The same author also mentions Article XII paragraph 2 of the CMS, which states that its provisions do not affect the rights and obligations of States Parties under other international agreements. Wolfrum also argues that in practice, a State Party to the ICWR could object to the protection of humpback whales (which are protected under Appendix I of the CMS) and this would not be assessed as a violation of the Convention.116

C. Instruments Regulating the Conflict Situations in Relation to the ICRW

There are also other solutions in relation to the priority of the ICRW over other agreements, such as the Resolution on Cooperation between the CITES and the ICRW, which grants priority in relation to the regulation of whaling to the latter agreement.117

114 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, ILM 19, 841 (CCAMLR). 115

Wolfrum/Matz (note 110), 60.

116

Ibid., 61.

CITES Resolution Conference 11.4 (Rev. CoP12), available at: http://www.cites.org/eng/res/ 11/11-04.php (accessed on 10 September 2012); IWC 2007-4 Resolution on Cooperation between the IWC and the CITES, available at: http://archive.iwcoffice.org/meetings/resolutions/Resolution20074rev.pdf (accessed on 26 October 2012). 117

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1. The Convention on the Protection of Biodiversity and the Environmental Protocol to the Antarctic Treaty Other relevant provisions also regulate the conflict between environmental agreements, i.e., the ‘conflict clauses’, which have a common purpose of clarifying the relationship between the instruments of international law, including treaties, although their formulations can vary considerably.118 Of interest here is the saving clause of the CBD contained in Article 22.119 Another example may be found in a provision of the Environmental Protocol to the Antarctic Treaty 1991.120 According to the Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting Act, nothing in the Protocol on Environmental Protection is to derogate from rights and obligations of Parties under the CCAMLR and the Convention for the Conservation of Antarctic Seals and the International Convention on Whaling. As Wolfrum and Matz observe, the intention of the clause is to establish that the rights and regulations of States Parties stemming from these Conventions are not prejudiced. However, these clauses are not entirely clear. Although there is no doubt that the right to hunt whales is not limited under this Protocol, it is not entirely clear whether the Protocol also relates to activities going beyond those permitted by these Conventions (e.g. fishing out of season).121 The question may thus arise: whether such an activity would be a violation of the Protocol; the answer: it would not be a violation, as fishing, notwithstanding its character (legal or illegal) is to be dealt with under the CCAMLR.122 Further, under the saving clause under the Article 22 paragraph 1 of the CBD, Wolfrum and Matz comment that, though on first sight this type of clause provides for the priority of existing treaties, they contain a qualification that may reverse this 118

Wolfrum/Matz (note 110), 122; Fitzmaurice/Elias (note 110), 332 et seq.

Art. 22 of the CBD (note 4) reads as follows: “1. The provisions of this Convention shall not affect the rights and obligations of any Contracting party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. 2. Contracting Parties shall implement this Convention consistently with the rights and obligations of States under the law of the sea”. 119

120

Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, ILM 30, 1461.

121

Wolfrum/Matz (note 110), 123.

122

Ibid., 123 et seq.

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result and make the application of these clauses even ‘more obscure’.123 Article 22 paragraph 1 provides, in fact, that only instruments which do not harm the environment will prevail over the CBD. Such a clause may pose serious interpretative problems, as there are no criteria indicating when the implementation of rights and obligations poses a serious threat to biological diversity. Therefore, according to Wolfrum and Matz, there are doubts whether such a clause will succeed in the prevention or solving of conflicts. Wolfrum and Matz also have reservations towards the second part of Article 22. They argue that by establishing the superiority of ‘rights and obligations’, the more general aspects of the Law of the Sea Convention and the broader law of the sea, are neglected, including, in particular, those provisions “which do not constitute rights and obligations but reflect approaches, principles and organisational matters.”124 It is suggested by these authors that a wide interpretation of these provisions, one which would establish priority of the law of the sea in general over the CBD, does not take into account that a clear wording could have been drafted to achieve this objective; and that the regime relating to biological marine resources under the law of sea “could then not be supplemented and reinforced by the Convention on Biological Diversity.” As Wolfrum and Matz note, “[t]his difficulty demonstrates the necessity of precisely formulating clauses that do not leave room for interpretation. Otherwise the objective of conflict clauses, to establish competences and prevent conflicts, cannot be met.”125 It is further stated that the relationship between the CBD and the Law of the Sea Convention is particularly unclear in the light of the conflict clause in the latter Convention, included in Article 311, which is a very far reaching clause. Arguably, these two clauses are not fully compatible and for that reason the relation between these two agreements cannot be settled by the reference to their conflict provisions.126

123

Ibid., 124.

124

Ibid., 125.

125

Ibid.

126

Ibid.

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2. Conflicts in Environmental Treaties and the Vienna Convention on the Law of Treaties Finally, recourse can be had to the provisions of the 1969 Vienna Convention on the Law of Treaties (VCLT)127 in order to solve the issue of conflicting environmental treaties. First of all, the question may be posed as to whether Article 31 VCLT (on the rules of interpretation) can be applied to resolve such conflicts. Unfortunately, the VCLT does not appear to be fully appropriate to deal with the task of harmonisation of environmental MEAs,128 there being, in this regard, some inherent problems such as the difficulty of precisely ascertaining the common object and purpose of such treaties. There are some general objectives, such as sustainable development, in all environmental MEAs. However, such objectives are too general and frequently lack a sufficiently precise definition to allow interpretative techniques to resolve apparent conflicts. As Matz says, “unless two treaties share an object and purpose element Article 31 does not generally provide for better harmonisation in the interpretation process of treaties.”129 Equally, Article 30 of the VCLT is not very helpful. Matz in particular highlights the difficulties in the interpretation of the phrase ‘the same subject matter’, which can be interpreted broadly or restrictively. The broad interpretation is based on the premise that all environmental treaties deal with the same subject-matter, i.e. protection of the environment, which would lead to unreasonable results. On the other hand, a restrictive interpretation may be problematic as “how restrictive the interpretation should be, cannot be easily settled.”130 Article 60 of the VCLT (material breach of a treaty) also does not appear to provide a suitable solution due to its particular structure, which provides for the suspension or termination of a treaty in relation to particular parties, only in a situation where a great number of States is likely to face the same situation. Another argument against the applicability of this Article is that: “[t]he practicability of the suspension of a treaty as a sanction is questionable, at least as far as environmental agreements are concerned. In most cases sanctions lack viability in international environmental law.”131 127

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331.

128

See in depth Wolfrum/Matz (note 110), 129–159.

129

Ibid., 138.

130

Ibid., 151.

131

Ibid., 152.

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3. UNESCO Universal Declaration on Cultural Diversity As was argued above, the possibility has been considered of cultural diversity as a human right trumping environmental obligations.132 The starting point of this approach is an analysis of the provisions of the UNESCO Universal Declaration on Cultural Diversity. However, as argued by Bowman, the Declaration is first of all a soft law instrument and it is drafted in very loose language and many of its provisions are lacking any normative content.133 Bowman further asserts that the preservation of cultural diversity is only one of the aspects of human rights protection, therefore, “it is obvious that it cannot be allowed to undermine the many fundamental principles that have been painstakingly established for that purpose in the past.”134 For that reason it is very difficult, if not impossible, to imagine that a practice which might be supported on the basis of the right to cultural diversity, but which would lead to the destruction of the environment, could be acceptable and tolerated.135 The same author, however, notes that that there is some discernible tension within the heart of the Declaration. On the one hand, it is based on the premise of the respect for traditions, which maybe a kind of an ethical imperative; while, on the other hand, it is recognised that the upholding of cultural differences may result in fundamentalism and segregation, which would obliterate basic principles of the 1948 Universal Declaration on Human Rights.136 The fact is that there are certain traditional practices which cannot be tolerated; and Bowman argues that this category includes commercial whaling. He makes the following argument: […] while whaling has commonly been presented as a cultural tradition within certain countries or communities, it is by no means clear, given the very definition of culture employed in this instrument [Declaration on Cultural Diversity], why equally strong claims might not be made regarding the development and recognition over recent decades of a cultural value system requiring that whales be exempted from such exploitation.137

132

Bowman (note 15), 437–443.

133

Ibid., 439.

134

Ibid.

135

Ibid.

136

Ibid., 440.

137

Ibid.

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Bowman advocates the necessity of accepting changing moral values, and adjusting to them, the requirement for which cannot be treated as constituting infringements of fundamental rights. He refers to the development of a ‘siege mentality’ by certain communities, and postulates a refusal by the communities to accommodate such changes. In such a case, Bowman says: “it is extremely difficult to see how human rights norms can legitimately be recruited to assist them.”138

D. Conclusion

The above-presented legal (in particular under the law of treaties) and extra-legal solutions to the issues of compatibility of aboriginal whaling with environmental obligations, deriving in particular from global MEAs (such as the CBD and the CITES), do not offer an easy or straightforward answer. The oblique and ambiguous formulations of certain conflict clauses (e.g. Article 22 of the CBD) make them, also, very difficult (if not impossible) to apply. Extra-legal approaches, based on balancing the right to cultural diversity, on the one hand, and environmental obligations, on the other, also appear to lead to unsolvable difficulties in practice. As noted by Matz: “[b]ecause the law of treaties cannot provide a forum for the coordination of the content of treaties, different approaches must be considered.”139 The present author is in agreement with this statement, and also with further postulates which Matz made. The key to the harmonisation of conflicting obligations lies in cooperation between States and organizations, and in good governance within organisations. Hence, in relation to the overall management of whale stocks, cooperation between the relevant treaty regimes is of great importance. An example of such fruitful and efficient cooperation is to be found in the cooperation between the IWC and the CITES. The relationship between IWC and the CITES is mutually supportive and based on the premise of the pivotal role of the IWC in relation to the management of whales. This was supported by several resolutions, such as the most important CITES Resolution Conference 11.4 (Rev. CoP12) and the IWC’s 1996 Resolution

138

Ibid., 443.

139

Wolfrum/Matz (note 110), 159.

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on Cooperation between the IWC and the CITES.140 This Resolution was important for two reasons. It confirmed the primacy of the IWC as the premier ‘universal’ entity to make decisions on the management of cetaceans and that the CITES had an important role in supporting the IWC’s ‘management decisions’.141 In relation to the question of the harmonisation of whaling with environmental obligations in the case of indigenous (aboriginal) whaling, there are two types of identifiable situations of possible conflict, namely, those within the IWC and those outside its jurisdiction. As to the first type of possible conflict, the cooperation between ICRW and CITES is of little assistance as the CITES relates only to commercial whaling, and is in fact a trade Convention (although, of course, its trade policies influence environmental protection and biodiversity). The CBD, as explained above, has its limitations due to the vague formulation of Article 22. At any rate it would be very difficult to prove that aboriginal quotas set by the IWC “would cause a serious damage or threat to biological diversity.”142 Therefore, the provisions of the CBD trump decisions of IWC regarding whaling. The only solution may be strengthening the role of the Scientific Committee of the IWC to enhance its effectiveness, and the introduction of full transparency.143 It appears that there is not much which can be done in the way of legal solutions. The situation is even less encouraging in the case of States which allow aboriginal whaling outside the IWC. In fact, the legal deficiencies of the system of harmonisation of various obligations make it almost impossible to find any constructive solution to this problem.

140 Alexander Gillespie, Forum Shopping in International Environmental Law: the IWC, CITES and the Management of Cetaceans, Ocean Development and International Law 33 (2002), 17. See supra, note 117. 141 Gillespie (note 3), 318. This stand was confirmed by other Resolutions adopted by the IWC, such as Resolutions of 2007 on CITES. It stated that the IWC “reaffirms the moratorium on commercial whaling remains in place and the reasons for the moratorium are still relevant: express appreciation that CITES recognises the IWC’s Scientific Committee as the universally recognised international organisation with international expertise to review and evaluate the status of the worlds’ whale stocks reaffirms the important role of CITES in supporting the IWC’s management decisions with regard to the conservation of whale stocks and the importance of continued cooperation between the VITES and IWC; reaffirms the importance of continued cooperation between CITES and IWD with regard to the conservation of whale stocks through the regulation and management of international trade in whale products […],” IWC 2007-4 Resolution on Cooperation between the IWC and the CIT, see supra, note 117. 142

Art. 22 of the CBD (note 4).

143

See Wolfrum/Matz (note 110), 169.

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On the other hand, the above-discussed view that harmful aboriginal whaling, as the part of indigenous peoples’ cultural diversity, should be trumped by the exigencies of environmental protection, which have brought about a change in moral values, appears to be very vague and intangible. For that reason its application would be very problematic, if not unworkable, both in the practice of IWC and even more so outside its jurisdiction. In light of all of the above considerations, it appears that there is no readily available and acceptable solution in the case of conflict between aboriginal whaling and environmental protection, both within and outside the IWC.

VIII. General Conclusion The analysis of the problem of indigenous (aboriginal) peoples’ right to whaling (as part and parcel of their right to cultural diversity), on the one hand, and the duty to protect the environment, on the other, has evidenced that not only whaling in general as a divisive issue, but also that aboriginal whaling is subject to many conflicting views, both nationally and internationally. While it appears that the right to aboriginal whaling is not contested, some authors express doubts concerning the species of whales allocated for hunting, some of which are just recovering from brink of extinction, so much so that their hunting contravenes the obligations stemming from the duty of protection of biodiversity. Other writers express concern relating the number of allocated whales; while others argue that in fact the whales which are killed are not for aboriginal subsistence needs but are sold for profit, which violates the provisions of the ICRW for indigenous (subsistence) whaling. As it appears from the analysis above, the conflict between the right to cultural diversity, including the right to aboriginal whaling, and the obligations to protect the environment, is a very complex issue, which has proved to be difficult, if not impossible, to resolve. It is part and parcel of a wider question of conflict between obligations, which in itself is a complicated issue, not unlike the reconciliation of the obligations regarding the conflict between trade and the environment. The author of the present article suggests a harmonisation of rules through governance and cooperation. However, this solution, considering the state of affairs at the IWC, appears to be problematic as well. There is widespread aboriginal whaling outside the jurisdiction of the

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IWC, on which there is very little available data, which makes it almost impossible to find a workable solution to the question of harmonisation of aboriginal whaling with obligations of environmental protection. There is an incontrovertible right to aboriginal whaling and an uncontested obligation to protect the environment; however, at present how to harmonise and reconcile them remains an irresolvable problem.

Mercantile Metaconstitutionalism: Interpretation of the WTO Treaty and the Developing Countries PRABHAKAR SINGH(

ABSTRACT: Arguably, sovereignty, as understood in the Lotus Case, does not foreclose the possibility of international trade law’s renovation through a constitutional interpretation. The article identifies this possibility through the epithet of ‘mercantile metaconstitutionalism’. A constitutional reading of the trade treaty is a teleological aspiration in contravention to the World Trade Organization Agreement and its covered agreements. Furthermore, this constitutional reading is outside the 1969 Vienna Convention on the Law of Treaties (VCLT) as well. Moreover, Article 17.6 (ii) of the Anti-Dumping Agreement provides that the WTO Panels and the WTO Appellate Body “shall” interpret the provision of this Agreement “in accordance with customary rules of interpretation” echoed also in Article 3 (2) of the Dispute Settlement Understanding. Though the role of the VCLT in treaty interpretation is well settled in the jurisprudence of WTO law, a call for a constitutional method of treaty interpretation has also arisen. KEYWORDS: Mercantile Metaconstitutionalism, World Trade Organization, Trade Agreements, Developing Countries, Treaty Interpretation

I. Introduction The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of

President’s Graduate Fellow and Associate, Centre for International Law, Faculty of Law, National University of Singapore. PhD Candidate (National University of Singapore); LLM (University of Barcelona); B.A.LLB (Hons) (National Law Institute University, Bhopal). I am thankful to Professors M. Sornarajah, Wang Jiangyu, and Michael Ewing-Chow for their comments. I am equally indebted to the two anonymous reviewers. Subsequent editorial inputs from Sylvia Nwamaraihe, Niklas Sievers, Benjamin Maass and Sina Hartwigsen have improved the article immensely. All mistakes remain the author’s own. The author can be reached at [email protected]. (

466 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.1

Primarily, a constitutional reading of the World Trade Organization (WTO) law is a question of interpretation of the global trade treaty.2 The task of identifying the effect of the WTO law’s constitutional reading on the developing and the least developed countries begins with locating constitutional predispositions and indices in WTO law, if any.3 The Agreement establishing the World Trade Organization (WTO Agreement)4 became effective from 1 January 1995. The WTO Agreement in Annexes 1, 2, 3 and 4 lists all other agreements on specific trade issues.5 As such, the 1 WTO, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Appellate Body of 19 December 1997, WT/DS50/AB/R, para. 45.

Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, American Journal of International Law (AJIL) 95 (2001), 535. Notably Johnstone says the examination of the role of interpretive communities points to the fact that within international law we need new institutions and procedures, not for authoritative legal interpretation, but for fact-finding and factassessment. Ian Johnstone, Treaty Interpretation: The Authority of Interpretive Communities, Michigan Journal of International Law (MJIL) 12 (1991), 371, 419. 2

Klaus Armingeon/Karolina Milewicz/Simone Peter/Anne Peters, The Constitutionalisation of International Trade Law, in: Thomas Cottier/Panagiotis Delimatsis (eds.), The Prospects of International Trade Regulation: From Fragmentation To Coherence (2011), 69. See also Theodore Kill, The Evidence for Constitutionalization of the WTO: Revisiting the Telmex Report, Minnesota Journal of International Law 20 (2011), 65, 122. For a general overview, see Stefan Kadelbach/Thomas Kleinlein, International Law – a Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles, German Yearbook of International Law (GYIL) 50 (2007), 303, 317; Anne Peters, Merits of Global Constitutionalism, Indiana Journal of Global Legal Studies (IJGLS) 16 (2009), 397; Ruth Buchannan, Legitimating Global Trade Governance: Constitutional and Legal Pluralist Approaches, Northern Ireland Legal Quarterly 57 (2006), 654; Christoph U. Schmid, A Theoretical Reconstruction of WTO Constitutionalism and its Implications for the Relationship with the EU, EUI Working Paper Law No. 2001/5, available at: http://cadmus.eui.eu/bitstream/handle/1814/169/law 01-05.pdf?sequence=1 (accessed on 25 March 2013). However Magnuson thinks that the WTO through a “narrow textualism” has avoided constitutionalism, see William Magnuson, WTO Jurisprudence & Its Critiques: The Appellate Body’s Anti-Constitutional Resistance, Harvard International Law Journal (HILJ) Online 51 (2010), 121, available at: http://www.harvardilj.org/wp-content/ uploads/2010/09/HILJ-Online_51_Magnuson.pdf (accessed on 25 March 2013). Likewise Dajani says that mandatory rules of international law are unlikely to develop into a nuanced body of constitutional norms. Omar M. Dajani, Contractualism in the Law of Treaties, MJIL 34 (2012) 1, 85. 3

4 WTO, Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, UNTS 1867, 154 (WTO Agreement). 5 Such as agriculture, the Agreement on the Application of Sanitary and Phytosanitary Measures, the Agreement on Textiles and Clothing, the Agreement on Technical Barriers to Trade and the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) etc. All WTO agreements including the ones annexed to the original 1994 WTO Agreement (note 4), and other legal texts are available at: http://www.wto.org/english/docs_e/legal_e/legal_e.htm (accessed on 26 March 2013).

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WTO Agreement is a cosmos of specific treaties annexed to the main agreement. Empirically speaking, from 1995 through 2007, complainants via the WTO dispute settlement procedure have won about 90 percent of the cases – disparity transcending case type, party identity, income level, and other litigant-specific characteristics.6 The WTO Dispute Settlement System (DSU)7 thus appears to favour complainants. However, the WTO Appellate Body’s (Appellate Body) active rule development is not good for the WTO DSU’s democratic legitimacy.8 Furthermore, Babu opines that the ambiguous manner in which the Special and Differential (S&D) provisions (made especially for the developing and the least developed countries) have been drafted, offer leverage to the WTO Panels and Appellate Body in interpretation.9 In effect, the WTO judiciary puts too much in the hands of the seven wise men of the Appellate Body. An appeal to the Appellate Body presents opportunities to read the agreed text of the WTO Agreement and offer new meanings, thus, unsettling the previously agreed bargain. Reading non-trade concerns is one such method. Broadly speaking, constitutionalism of international law means that international treaties (such as the United Nations Charter of 1945 and the WTO Agreement) have a constitutional character and in a dispute before the International Court of Justice (ICJ) and the WTO Appellate Body and Panels, such treaties should be read as a constitution. Thus, can new meanings be given to carefully arrived bargains that the text of a treaty represents? In fairness to treaty interpreters, it is practically impossible to exhaustively foresee and account for all future scenarios. Historical happenstance and According to Petersmann, “[s]uch judicial clarification of disputed interpretations of incomplete, intergovernmental agreements reduces not only the negotiation costs of governments by delegating the clarification of contested facts and legal claims to independent third-party adjudication,” see Ernst-Ulrich Petersmann, Multilevel Judicial Governance Of International Trade Requires A Common Conception of Rule of Law and Justice, Journal of International Economic Law (JIEL) 10 (2007), 529. Juscelino F. Colares, A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development, Vanderbilt Journal of Transnational Law 42 (2009), 383. 6

7 WTO, Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, UNTS 1869, 401, available at: http://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm (accessed on 25 March 2013) (DSU).

Ibid; see also Edward Lee, Measuring TRIPS Compliance and Defiance: The WTO Compliance Scorecard, Journal of Intellectual Property Law 18 (2011), 401, 403. 8

9 Rajesh R. Babu, Interpretation of the WTO Agreements: Democratic Legitimacy and Developing Nations, Indian Journal of International Law 50 (2010), 45, 49.

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the rise of new consumer sensibilities within the domain of free market shape popular perceptions.10 A trade dispute is bound to reflect this change. For instance, the WTO treaty has categorically kept labour issues away from its text (except Article XX (e) of the General Agreement on Tariffs and Trade (GATT 1994)11 on goods made from prison labour). Consequently, a textual approach would leave such issues to be addressed by the Ministerial Conference. However, constitutional courts the world over have accommodated environmental and human rights concerns in the absence of express domestic legislations. Thus, arguably, a similar possibility cajoles the WTO Panels and Appellate Body to factor non-trade concerns while adjudicating. Though advocated by many German lawyers, this article identifies it as Mercantile Metaconstitutionalism: ‘mercantile’ because it deals with trade and commerce, and ‘metaconstitutionalism’ because, as Walker would put it, it refers “to the development beyond the state of certain levels of decision-making capacity.”12 This constitutionalisation of international law is a cause of concern for the developing and the least developed countries. Among other things, mercantile metaconstitutionalism might mean the following:13 (i) that the WTO agreements constitute an incipient global economic constitution;14 (ii) the WTO treaty is transforming into a Global Federal Construct;15 (iii) the Appellate Body is a court for balancing competing values (e.g., trade versus health); (iv) the WTO should offer greater certainty for private economic rights against domestic interest groups;16

Dougals A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harvard Law Review (HLR) 118 (2004) 526, 536. 10

11

WTO, General Agreement on Tariffs and Trade (1994), 15 April 1994, UNTS 1867, 190 (GATT).

12

Neil Walker, Taking Constitutionalism Beyond the State, Political Studies 56 (2008), 519.

Robert Howse/Kalypso Nicolaidis, Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?, Governance 16 (2003), 73, 94. 13

14

Ibid.

15

Ibid.

Joel R. Trachtman/Philip M. Moremen, Costs and Benefits of Private Participation in WTO Dispute Settlement: Whose Right Is It Anyway?, HILJ 44 (2003), 221, 222. 16

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(v) there is an inherent separation of powers in the WTO treaty;17 (vi) that through a public interest view, the WTO promotes a constitutional perspective.18

For Petersmann, the history of international economic law is characterised by the evolution from unilateral and authoritarian protection of transnational economic transactions towards a progressive worldwide “liberalization, intergovernmental regulation, and private self-regulation.”19 Ruggie’s “embedded liberalism” best explains the model for international trade: as a form of multilateralism that is moulded by domestic requirements and not the other way around.20 The WTO constitutionalism thus inverts this embedded liberalism, struggling simultaneously with its own meaning and definition.21 This leads Peters to argue that “international law has to handle constitutional law.”22 Any normative discussion on the boundaries of the WTO law requires a nuanced understanding of the institutional capacity of the WTO as well as the meaning of the WTO agreements – which is a product of a protracted negotiation among Member States.23

17 See India’s position in the India – Quantitative Restrictions case, WTO, India – Quantitative Restrictions on Imports of Agriculture, Textile and Industrial Products, Report of the Appellate Body of 23 August 1999, WT/DS90/AB/R para. 9 (India – QRs case). 18

Armingeon/Milewicz/Peter/Peters (note 3).

19

Petersmann (note 5), 530.

John Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, International Organizations 36 (1982), 379. 20

Alec Stone Sweet, Constitutionalism: Legal Pluralism, and International Regimes, IJGLS 16 (2009), 621, 626. See also Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, Penn State Law Review 113 (2009), 671, 677, who states that “[e]ven if one can argue that constitutionalism is grounded in the emergence of a transnational culture of values, it is not clear which of those value systems is legitimate.” 21

Anne Peters, Supremacy Lost: International Law Meets Domestic Constitutional Law, Vienna Online Journal of International Constitutional Law 3 (2009), 170; id., Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures, Leiden Journal of International Law (LJIL) 19 (2006), 579. 22

23 Anu Bradford, When the WTO Works, and How it fails, Virginia Journal of International (VJIL) 50 (2010), 1, 8.

470 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 A. WTO Constitutionalism: Learning from Domestic Courts

A constitutional discourse as an interpretive method within the WTO may either foreclose or expand possibilities.24 Such arguments are also supported by assertions that the WTO dispute settlement system has gravitated towards US-style litigation.25 In fact, while emphasising the need for consistency and predictability, the WTO Appellate Body, according to some, conducts a legal analysis, applying “balancing tests” to evaluate, on a fact-specific basis, competing policy objectives and public interests.26 Rightly so, a constitutional view of the WTO treaty interpretation sees a tariff-free world as the telos of the WTO and its covered agreements. At first glance, a constitutional reading of the WTO seems to promote a direct effect of WTO law on domestic law. However, given the new sovereignty of the developing and the least developed countries, most of them have a dualist view of WTO law just like the European Union (EU).27 This is understandable, as countries want to preserve the domestic policy space to ensure the flexibility for domestic political constituencies. Nonetheless, the constitutional understanding of international law gradually pushes the developing and the least developed countries to a textual monism through the reading of international law into domestic law by the

24 Joel P. Trachtman, The Constitutions of the WTO, European Journal of International Law (EJIL) 17 (2006), 623.

John O. McGinnis/Mark L. Movsesian, The World Trade Constitution, HLR 114 (2000), 511, 515 et seq. 25

26 Padideh Ala’i, Transparency and the Expansion of the WTO Mandate, American University International Law Review (AUILR) 26 (2011), 1009, 1011. 27 Historically the relationship between a State and international law has been seen as monist or dualist. Anne Peters, The Position of International Law within the European Community Legal Order, GYIL 40 (1997), 9, 35. If a State offers a direct effect to international agreements and conventions, it is called monist. On the other hand a State which does not give direct effect to international laws is called dualist. Most recently, in ECJ, Case C–402/05 P and C–415/05 P, Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 2008 ECR I–6351, the EU expressed its dualism to international law. See Juliane Kokott/Christoph Sobotta, The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?, EJIL 23 (2012), 1015. Also see, Anthony D’Amato, The Coerciveness of International Law, GYIL 52 (2009), 437, 440.

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domestic court.28 However, such interpretations may or may not be the actual will of the State concerned. The automatic implementation of awards in WTO, unlike in the GATT 1947, through negative consensus, causes it to spill over into the deliberative sphere.29 A typical image of constitutional law is that of providing for and protecting the rights of private investors and consumers. The WTO, far removed from public international law where only States are party to litigation, allows for ways in which private people can litigate and intervene.30 This scope alone perhaps stokes the scholarly appetite to invoke a constitutional image for the WTO treaty. Naturally, since WTO is a product of a laissez-faire view of world trade, the debate on whether the WTO law has inherent constitutional features is a rather important one. For the developing and the least developed countries, a particular challenge arises when international trade liberalisation goals interact with domestic social policy preferences. In addition to considering the welfare and public choice efficiency of interpretive choices, we must also consider the distributive effects of interpretive choices of WTO law. Interpreting WTO law as a constitution lends itself to this tension all the more because the developed, the developing and the least developed countries have varying welfare approaches.31 Interpretive hermeneutics within international trade law is then central to the relationship of the WTO and the developing and the least developed countries.

Most recently in July 2011, the Indian Supreme Court while deciding a civil writ petition under Article 32 of the Constitution of India recalled that India is not a party to the Vienna Convention. However, the Court said that the Article 31 of the Vienna Convention provides a broad guideline as to what could be an appropriate manner of interpreting a treaty in the Indian context also. Supreme Court of India, Ram Jethmalani v. Union of India, Judgment of 4 July 2011, MANU/SC/0711/2011 para. 60. 28

Bhupinder S. Chimni, India and Ongoing Review of WTO Dispute Settlement, Economic and Political Weekly 34 (1999), 264. For a critique of the scholarship on WTO constitutionalism, see Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (2009), 87 et seq. 29

30 Seema Sapra, The WTO System of Trade Governance: The State NGO Debate And The Appropriate Role For Non-State Actors, Oregon Review of International Law (ORIL) 11 (2009), 71, 90. 31 Thompson says “competing social objectives will vary from country to country,” see Lawrence H. Thompson, The Advantages and Disadvantages of Different Social Welfare Strategies, Social Security Bulletin 57 (3) (1994), 3.

472 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 B. Rise of the Appellate Body

In its first Appellate Body report the WTO stated that its laws do not have to be read “in clinical isolation” from international law. And according to Article 5 of the VCLT, Articles 31 and 32 apply to “any treaty, which is the constituent instrument of an international organization.”32 Article 3 (2) of the DSU does not mention or mandate the express use of the VCLT. However it is perfectly legitimate to use the VCLT in interpreting WTO agreements. Thus, international law on treaty interpretation does play a role in WTO adjudication, “given that it may fill normative gaps in the WTO treaty, and provide a context for treaty interpretation.”33 Nonetheless, opposite views are also present. The extent and nature of the incorporation of public international law into WTO dispute settlement is highly contentious. Some fear that the trend of considering non-WTO rules of international law will lead to “mission creep” and judicial overreaching, thus constituting a threat to the multilateral trade regime’s legitimacy.34 According to von Bogdandy, a robust belief in a separate theory of WTO law emerges from the assertion “that the relationship between the legislative (rule-making) function and the adjudicative function as it pervades WTO law must be continuously reflected in the interpretation and application of its provisions.”35 The key to the WTO’s continued success lies in recognising its limits and subsequently transposing this insight into legal interpretative practice.36 The WTO’s particular importance stems from a widespread impression that it is an ongoing process which separates law

WTO, United States (US) – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body of 20 May 1996, WT/DS2/AB/R, 17; Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). 32

33 Jeffrey Lagomarsino, WTO Dispute Settlement and Sustainable Development: Legitimacy Through Holistic Treaty Interpretation, Pace Environmental Law Review 28 (2011), 545, 546. See also Petros C. Mavroidis, No Outsourcing of Law? WTO Law as Practiced by WTO Courts, AJIL 102 (2008), 421, 424, stating that “[i]t would be incorrect to infer, however, that any gap filling exercise is a source of law”. 34

Lagomarsino (note 33), 546.

Armin von Bogdandy, Law and Politics in the WTO – Strategies to Cope with a Deficient Relationship, Max Planck Yearbook of United Nations Law (MPYUNL) 5 (2001), 609, 613. 35

36

Ibid.

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from politically accountable institutions. It is believed to have profound implications and harm for democratic self-determination.37 Arguably, in this sense, WTO laws […] should develop along the lines of international environmental law. It is one of the greatest achievements of environmental law (soft, customary, treaty) that domestic decision-makers have to take foreign interests affected by the decision adequately into account.38

WTO laws, von Bogdandy says, “might be on the way to developing a concept analogous to ‘shared natural resources’ for the economic realm.”39 This is an important point to consider for the developing and the least developed countries as in the matters of trade, environmental justifications have been used to isolate and thus discriminate imports from developing countries.40

II. The United Nations and GATT 1947: The Nature of Internationalism and the Gradual Rise of Constitutionalism International trade law, as a sub-category of international law, is a product of the negotiations and therefore the will of developed, developing and least developed countries.41 Notably, the GATT 1947 grew separately from public international law enshrined in the United Nations Charter of 1945 (UN Charter). The WTO, according to Howse, is a product of the post-Cold War environment.42 While the United Nations (UN) instituted the ICJ for the resolution of disputes between Member States, GATT 1947 did not have any such mechanism. In 1998, Fassbender argued

37

Ibid., 611.

38

Ibid., 671 (footnote omitted).

39

Ibid.

John H. Knox, The Judicial Resolution Of Conflicts Between Trade And The Environment, Harvard Environmental Law Review 28 (2004), 1, 3. 40

Harvard Law Review, Developing Countries and Multilateral Trade Agreements: Law and the Promise of Development, HLR 108 (1995), 1715, 1716. 41

42 Robert Howse, Moving the WTO Forward – One Case at a Time, Cornell International Law Journal (CILJ) 42 (2009), 223, 224.

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for the UN Charter to be read as the constitution of the world.43 While the UN is a ‘legal regime’, the GATT 1947 was a ‘diplomatic system’.44 Nonetheless, just like the UN, many see robust trade, however diplomatic in nature, as the prerequisite to world peace.45 The GATT 1947 introduced a unique idea of ‘nullification and impairment’ to international law founded on tariff negotiations where concessions are arrived at reciprocally.46 The WTO however also allowed S&D treatment for non-reciprocal concessions from developed countries bolstering exports from the developing and the least developed countries simultaneously.47 By the 1990s, riding gradually on the wings of technology, globalisation rolled in. And when the WTO began functioning in 1995, many non-trade issues were brought and discussed by the Appellate Body, the ultimate international trade court for legal interpretations.48 A decade into the WTO’s birth, the question arose whether the WTO Appellate Body has become a WTO plus court, a place not only for trade but

43 Bardo Fassbender, The United Nations Charter As Constitution of the International Community, Columbia Journal of Transnational Law 36 (1998), 531. 44 WTO, General Agreement on Tariffs and Trade (1947), 30 October 1947, UNTS 55, 194, available at: http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm (accessed on 25 March 2013) (GATT 1947). See also the Preamble of the Charter of the United Nations, 26 June 1945, UNCIO 15, 335. 45 See James M. Boughton, The Role of the IMF in Peace and Security, AUILR 20 (2005), 1117, 1118 et seq., highlighting the existence of a link between global free trade and peace and prosperity.

Donald M. McRae, The Legal Ordering of International Trade: From GATT to the WTO, in: Ronald J. Macdonald/Douglas M. Johnston (eds.), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (2005), 543, 553. 46

47 The WTO Agreements contain special provisions which give developing countries special rights and which give developed countries the possibility to treat developing countries more favourably than other WTO Members. These special provisions include, for example, longer time periods for implementing Agreements and commitments or measures to increase trading opportunities for developing countries. These provisions are referred to as “special and differential treatment” provisions, requiring all WTO Members to safeguard the trade interests of developing countries, support to help developing countries build the infrastructure for WTO work, handle disputes, and implement technical standards, and provisions related to Least-Developed country Members. See Trade and Development Committee of the WTO, Introduction, available at: http://www.wto.org/english/tratop_e/devel_e/dev_special_ differential_provisions_e.htm (accessed on 9 April 2013).

WTO, US – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/DS58/AB/R; Lagomarsino (note 34), 546. 48

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also non-trade issues and concerns.49 For many this development was an ode to the effectiveness of WTO as a world trade court.50

A. The Dispute Settlement Understanding and the New Constitutional Turn

Only in 1995 with the birth of the WTO did countries reach an understanding on the settlement of disputes listed in Annex 2 of the WTO Agreement.51 Member countries could now attract inter-State litigation in the event of the violation of WTO-covered agreements. As expressed in Article 3 (2) of the DSU, “the dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system.”52 The DSU seeks to “[c]larify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law” and provides that “[r]ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”53 The WTO Agreement, pursuant to Article 3 (2) of the DSU, has to be interpreted in accordance with customary international law. Likewise, the VCLT is a tool used to interpret a treaty that exists alongside customary international law.54 Yet in a series of anti-dumping cases, the WTO Appellate Body has developed a constitutional interpretation of the Agreement on Implementation of GATT 1994 Article VI (AntiDumping Agreement) giving new institutional meanings and possibilities within the

Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional and Political Constraints, AJIL 98 (2004), 247. 49

50

Keisuke Iida, Is WTO Dispute Settlement Effective?, Global Governance 10 (2004), 207, 222.

See WTO, DSU (note 7). Consultations between parties precede any dispute. Within the new WTO system, a Panel is formed and parties can appeal against the Panel report to the Appellate Body on the points of law. The DSU allows for countermeasures in the case of non-compliance. 51

52

Art. 3 (2) of the DSU (note 7).

53

Ibid.

Babu notes that the VCLT “was a compromise formula, meaning it has also incorporated other modes of interpretation on an ancillary basis, increasing the discretion of the judges,” see Babu (note 9), 62. For a seminal article on the subject of WTO law interpretations, see Michael Lennard, Navigating by the Stars: Interpreting the WTO Agreements, JIEL 5 (2002), 17. 54

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WTO.55 Such constitutional ethos of the Appellate Body are anchored in a discernible purpose of cabining distortive and restrictive trade consequences from the use of zeroing which have long been left unchecked even though the VCLT which does not support it.56

B. When the Appellate Body Began to Borrow Domestic Techniques

Indeed, the Appellate Body has borrowed domestic constitutional doctrines such as proportionality analysis in the Korea-Beef Case.57 Proportionality test, within the context of the WTO, refers to the Appellate Body’s attempt at balancing competing interests in order to assess whether a measure can be justified on the basis of GATT 1994 Article XX on general exceptions. For instance, in United States (US)-Gasoline58 and US-Shrimp59 the Appellate Body, with regard to the chapeau of Article XX, viewed its task as to examine whether measures were applied reasonably, with due regard both to the legal duties of the party claiming the exception and the legal rights of the other parties concerned.60 The constitutionalist approach to the law of international organisations is “an indication of the fact that the powers of international organizations have to be exercised in accordance with certain legal constraints, notably those articulated in its

WTO, Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, 15 April 1994, UNTS 1868, 201, available at: http://www.wto.org/english/docs_e/legal_ e/19-adp_02_e.htm (accessed on 25 March 2013) (Anti-Dumping Agreement). See Sungjoon Cho, Global Constitutional Lawmaking, University of Pennsylvania Journal of International Law 31 (2010), 621, 624; Kamala Dawar/Peter Holmes, Negotiation or Litigation? The Curiously Evolving Governance of the WTO, in: Linda Yueh (ed.), The Law and Economics of Globalisation: New Challenges for a World in Flux (2009), 93. 55

56

Cho (note 55), 621.

WTO, Korea – Measure Affecting Imports of Fresh, Chilled, and Frozen Beef, Report of the Appellate Body of 11 December 2000, WT/DS161/AB/R, para. 162. 57

58

WTO, US – Standards for Reformulated and Conventional Gasoline (note 32), 22.

WTO, US – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WB/DS58/AB/R, para. 151. 59

60 See Ingo Venzke, Making General Exceptions: The Spell of Precedents in Developing Article XX GATT into Standards for Domestic Regulatory Policy, German Law Journal 12 (2011), 1130.

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constituent document.”61 Constitutionalisation has also been seen as an attempt to allow the WTO court to read non-trade concern into the jurisprudence of WTO law, something that the contracting parties of the GATT 1994 never intended.62 Such activism of the Appellate Body allows the court to expand their jurisdiction.63 But are the courts allowed to change the meaning of bargain enshrined in the WTO covered agreements? Those with a teleological view of treaty interpretation nod in support of this contention. However, this destabilisation of a fine balance creates insecurity and confusion for the developing and the least developed countries.

III. The Negotiated Bargains and Concessions for Developing and Least Developed Countries under the GATT/WTO System A constitutional interpretation promotes the liberal market as a basic legal norm.64 The objective of economic metaconstitutionalism “is to move the locus of authoritative pronouncements over legitimacy of [S]tate organisation – and its relationship with the people within a [S]tate – from individual political [S]tates to supranational or international organizations,” here the WTO.65 Anti-constitutionalists, however, think that: [m]uch that passes for constitutionalism and constitutionalist discourse are veiled attempts to justify particular political settlements and to justify them usually within a targeted group of [S]tates. Alternatively, constitutionalism serves as a mask over [S]tate building efforts at an international level, […] to federalize that system by the creation of a global federal [S]tate.66

61 Erika De Wet, International Constitutional Order, International and Comparative Law Quarterly (ICLQ) 55 (2006), 51, 53. 62 In the GATT 1947 (note 44), the countries agreed that “relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, developing the full use of the resources of the world and expanding the production and exchange of goods”.

J. Patrick Kelly, Judicial Activism at the World Trade Organization: Developing Principles of Self-Restraint, Northwestern Journal of International Law & Business (NwJILB) 22 (2002), 353. 63

64

See Hans Kelsen, On the Basic Norm, California Law Review 47 (1959), 107.

65

Backer (note 21), 715.

66

Ibid.

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The developing and the least developed countries never imagined the WTO promoting a kind of global federal governance.67 Actually, these countries joined the GATT 1947 and WTO through a political process with the promise of S&D treatment and non-reciprocal commitments in certain cases.68

A. When the WTO Judiciary Alters the Meaning of Provisions to Nullify Benefits to Developing Countries

The enabling clause adopted under the GATT 1947 in 1979 that mandates developed Members to give differential and more favourable treatment to developing countries is the WTO’s legal basis for the Generalized System of Preferences (GSP).69 Furthermore, Article IV of the General Agreement on Trade in Services (GATS) aims at increasing the participation of developing countries in world trade.70 Article 66 of the Trade Related Intellectual Property Rights Agreement (TRIPS Agreement) provides least developed countries with a longer time frame to implement all the provisions of the TRIPS Agreement and encourages technology transfer.71 The

67 The WTO treaty represents and codifies the negotiated bargains of various member countries. Developing countries would not have joined it had they suspected it to contain seeds of global governance through judicial rulemaking. International organisations such as WTO would still feature States interacting as unitary States on important issues, particularly in security matters. See Anne-Marie Slaughter, A New World Order (2012), 15.

The WTO Agreements contain provisions which give developing countries special rights – and known as “special and differential treatment” (S&D) provisions. The Ministers in Doha, at the 4th WTO Ministerial Conference mandated the Committee on Trade and Development to examine these special and differential treatment provisions. See Trade and Development Committee, Work on Special and Differential Provisions, available at: http://www.wto.org/english/tratop_e/devel_e/dev_special_ differential_provisions_e.htm (accessed on 15 April 2013). However the S&D continues to lack clarity and consensus. 68

69 See WTO, Differential and more favourable treatment reciprocity and fuller participation of developing countries, Decision L/4903 of 28 November 1979 by the Signatories to the GATT, available at: http://www.wto.org/english/docs_e/legal_e/enabling1979_e.htm (accessed on 25 March 2013).

WTO, General Agreement on Trade in Services, 15 April 1994, WTO Agreement, Annex 1B, UNTS 1869, 183 (GATS). 70

71 WTO, Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, WTO Agreement, Annex 1C, UNTS 1869, 299 (TRIPS). See Melissa O. Nonaka, Enough is Enough: India’s Fight Against Seizures Of Lawful Generic Medicines, Michigan State University Journal of Medicine and Law 16 (2011), 37.

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Appellate Body in the EC – Tariff Preferences Case72 however rendered the GSP scheme both discriminatory and reciprocal, in opposition to what the law of GSP says.73 Furthermore, actions in favour of developing countries – individually or as a group – may also be taken under ‘waivers’ from the main WTO rules. These waivers are granted by the General Council according to procedures set out in Article IX (3) of the WTO Agreement.74 Unfortunately, in several decisions involving developing countries the WTO Appellate Body and Panels have altered this position taken by the Ministerial Council.75 Such constitutionalism through judicial activism does not augur well for the health of WTO law.76 In addition, a comparison between the India Patents Case and the US-Section 301 ruling exhibits the role of power in the WTO judicial process.77 In the lackadaisical attitude of the Panel and the Appellate Body, in reading the S&D provisions, Babu sees a “trend towards constant dilution or disregard for the rights and concerns of the developing countries.”78 Other scholars have cited the Appellate Body’s ruling in the Shrimp Trutle Case79 as being unfavourable to developing countries. Here the most controversial issue was the Appellate Body’s decision that the term “exhaustible resources” in Article XX of the GATT 1994 included living resources such as turtles, allegedly contrary to the original intent of the drafters.80 This 72 WTO, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Appellate Body of 7 April 2004, WT/DS246/AB/R. 73

Ibid., paras. 162 et seq., as discussed in Babu, (note 9), 86.

These waivers are granted by the General Council according to procedures set out in Article IX (3) of the WTO Agreement, see WTO, Ministerial Decisions of 14 November 2001, WT/MIN(01)/15 and WT/MIN(01)/16. See also WTO, Trade and Development Committee, Work on special and differential provisions, available at: http://www.wto.org/english/tratop_e/devel_e/dev_special_ differential_provisions_e.htm (accessed on 25 March 2013). 74

75

These cases will be discussed later in the article.

76

Donald McRae, What is the Future of WTO Dispute Settlement?, JIEL 7 (2004), 3, 5.

Yoshiko Naiki, The Mandatory Discretionary Doctrine In WTO Law: The US-Section 301 Case And Its Aftermath, JIEL 7 (2004), 23. 77

78

Babu (note 9), 87.

WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/DS58/AB/R. 79

On the general rule of interpretation, Article 31 (1) of the VCLT says: “[a] treaty shall be interpreted 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.” As such, dictionaries are heavily and con80

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‘evolutionary’ interpretation, just like the new constitutional reading of the WTO law, was heavily criticised by developing countries.81

B. Is Importing a New Method of Treaty Interpretation a Breach of Treaty Obligations?

Constitutionalism is a new method of treaty interpretation that stems from domestic priorities in contravention to the agreed treaty. As said in the Lotus Case “[t]he rules of law binding upon States […] emanate from their own free will.”82 This “free will” is generally […] expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.83

Nonetheless, “[r]estrictions upon the independence of States” through constitutionalism “cannot therefore be presumed.”84 The GATT 1947 was primarily aimed at tariff reductions.85 It became the basis of eight rounds of multilateral talks ending in the 1994 Uruguay rounds. The Uruguay rounds of negotiations gave birth to the WTO with a dispute settlement mechanism. It was a remarkable feat for the negotiators as States agreed to the Marrakesh Agreement as a single package; the GATT 1994, and all the agreements in Annexes 1 (1A, 1B, and 1C), Annex 2, and Annex 3 would be applied to all the WTO Members.86 stantly relied on by Panels and the Appellate Body to interpret terms of WTO agreements for the purpose of deciding their ordinary meanings. However, no clear rules exist on how exactly they may be referred to and relied on. See Chang-Fa Lo, Good Faith Use of Dictionary in the Search of Ordinary Meaning under the WTO Dispute Settlement Understanding, Journal of International Dispute Settlement 1 (2010), 431. The ordinary meaning of “natural resources” does not include living things and animals. However, in this case the Appellate Body thought otherwise. 81

Iida (note 50), 219.

PCIJ, Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, Series A, No. 10, para. 44 (Lotus Case). 82

83

Ibid.

84

Ibid.

Mitsuo Matsushita/Thomas J. Schoenbaum/Petros C. Mavroidis, The World Trade Organization: Law, Practice, and Policy (2nd ed. 2006), 5 et seq. 85

86

Ibid., 8.

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This was a great leap for the liberalisation of trade towards forming healthy State practice and customary law. Consequently, the WTO was to have far more impact on sovereignty than any other organisation. Today many developing and the least developed countries are concerned about the loss of policy space and sovereignty due to WTO rulings.87 This becomes more acute when powerful countries have been seen utilising exceptions within WTO law.88 Both China and India, as Chimni usefully reminds in this regard, have not engaged with crucial issues such as standard of review or the doctrines of interpretation deployed by the WTO Appellate Body or Panels.89 The most curious criticism of the WTO is that it is too effective, at least in one sense: going beyond its mandate. Some suggest that the WTO is stepping out of bounds – in essence, making new rules – while the rulemaking bodies such as the General Council and the Ministerial Conference are still hampered by the consensus rule. Unless some kind of political decision is made, this problem is bound to grow in the future, despite the WTO’s recent exercise of self-restraint.90 Therefore, in 2011, the Committee on Trade and Development “look[ed] at the wide range of proposals by small, vulnerable economies in the WTO, with the aim of achieving their fuller integration into the multilateral trading system.”91 Even though powerful States could refuse compliance; less powerful States could be coerced to comply.92 Yet the WTO, with its two-tier panel and appellate jurisdiction, very 87 Santos offers a legal-institutional analysis of the WTO to shed light on the open-endedness of legal obligations and on how active Members can influence rule interpretation over time to advance their interests through effective litigation and lawyering. See Alvaro Santos, Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil & Mexico, VJIL 52 (2012), 551. 88 Chimni points out that “powerful [S]tates can avoid [the rule oriented system] through the incorporation of novel interpretive schemes or using the national security exception clause,” see Chimni (note 29), 267. 89 Id., China, India and the WTO dispute settlement system: Towards an Interpretative Strategy, in: Muthucumaraswamy Sornarajah/Jiangyu Wang (eds.), China, India and the International Economic Order (2010), 217, 218. 90

Iida (note 50), 222.

WTO, Annual Report 2012 (2012), 111, available at: http://www.wto.org/english/res_e/booksp_ e/anrep_e/anrep12_e.pdf (accessed on 25 March 2013). 91

92 WTO, US – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, Report of the Appellate Body of 11 March 2011, WT/DS379/AB/R. Pursuant to Art. 21 (3) (b) of the DSU, China and the US agreed that the reasonable period of time in which the US would have to implement the recommendations and rulings of the Dispute Settlement Board in this dispute would be eleven months.

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interestingly, has had more participation from the developing and the least developed countries than the ICJ.93 The statistical question that then arises is: how many times have the developed and the developing countries been plaintiffs, and not respondents, given that the percentage of plaintiffs wining cases at the WTO is close to ninety?94 Be that as it may, with the WTO’s DSU95 in place as part of the covered agreements, developing countries have been more forthcoming.96 Notably, commentators on developing countries have since long accused the WTO Appellate Body of being active contrary to democratic legitimacy.97 This presents a dichotomy at a time when WTO scholars are talking about the constitutionalisation of the WTO and treating the WTO law as prototype for a global trade constitution expounding mercantile metaconstitutionalism.

IV. The Rise of Constitutional Hermeneutics within WTO Legal System A. Scholarly Writings and the WTO as a Trade Plus Court

Scholars have argued for a constitutional potential of the WTO law. Article 38 (1)(d) of the ICJ Statue says that “teachings of the most highly qualified publicists of the

According to Pauwelyn and Salles, “[m]ultiple courts are better than no courts at all. Clearly, to have several fora available is a boon for complainants […],” see Joost Pauwelyn/Luiz E. Salles, Forum Shopping Before International Tribunals: (Real) Concerns, (Im)Possible Solutions, CILJ 42 (2009), 77, 80. See also Kara Leitner/Simon Lester, WTO Dispute Settlement 1995–2008:A Statistical Analysis, JIEL 12 (2009), 195. 93

94 WTO litigation presents an empirical puzzle: complaining parties “win” close to 90 percent of cases, while standard theories of litigation predict a strong tendency towards a 50 percent plaintiff winrate. Matthew C. Turk, Why Does the Complainant Always Win at the WTO?: A Reputation-Based Theory of Litigation at the World Trade Organization, NwJILB 31 (2011), 385. 95 WTO, DSU (note 7). Consultations between parties precede any dispute. Within the new WTO system, a Panel is formed and parties can appeal against the Panel report to the Appellate Body on the points of law. The DSU allows for countermeasures in the case of non-compliance. 96 Since the WTO was created in 1995, the most active users of the dispute settlement system have been the US (98), the European Union (85), Canada (33) and Brazil (25), see WTO, Annual Report 2012 (note 91), 16. 97

Babu (note 9), 45.

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various nations,” serve “as subsidiary means for the determination of rules of law.”98 Therefore, a constitutional reading of the WTO by scholars is worthy of engagement as a means for the determination of the rule of law. Such scholarly works have both reignited a constitutional study of international law and invited a critique of the constitutional reading of WTO law.99 Beginning with Jackson100 and Petersmann101 to Cass,102 scholars have talked about a constitutional model of the WTO. While Jackson advances a bold descriptive and normative claim,103 for Petersmann constitutionalism is about elevating a set of normative values to protect against both “government overreaching and short-sighted decisions by the population.”104 And for Cass, constitutionalism is “judicial norm-generative.”105 The WTO’s Appellate Body “is the dynamic force behind constitution-building by virtue of its capacity to generate constitutional norms and structures during dispute resolution.”106 Indeed on a notional level, Weiler discusses the possibility of a common law (judge-made law) of international trade arguing that the WTO has emerged as the equivalent of the UN Charter for the world trading system.107

98 See the Statute of the International Court of Justice (ICJ), 26 June 1945, available at: http:// www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 (accessed on 25 March 2013).

Thomas Cottier/Maya Hertig, The Prospects of 21st Century Constitutionalism, MPYUNL 7 (2003), 261, 267; Jeffrey L. Dunoff, Why Constitutionalism Now? Text, Context and the Historical Contingency of Ideas, Journal of International Law and International Relations 1 (2006), 191, 192. 99

100

John Jackson, The World Trade Organization: Constitution and Jurisprudence (1988).

Ernst-Ulrich Petersmann, Theories of Justice: Human Rights and the Constitution of International Markets, Loyola Law Review (LLR) 37 (2004), 407. 101

Deborah Z. Cass, The ‘Constitutionalization’ of International Trade Law: Judicial NormGeneration as the Engine of Constitutional Development in International Trade, EJIL 12 (2001), 39; id., The Constitutionalization of the World Trade Organization (2005). 102

See Jeffrey L. Dunoff, Constitutional Conceits: The WTO’s ‘Constitution’ and the Discipline of International Law, EJIL 17 (2006), 647, 652. 103

104

Ibid., 653.

See Deborah Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (2005), chapters 4, 5 and 6. 105

106

Id., (note 102), 42.

Joseph Halevi Horowitz Weiler, The EU, the WTO, and the NAFTA: Towards a Common Law of International Trade? (2000). 107

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For Guzman, using “the WTO as an institution devoted exclusively to trade is also unrealistic.”108 Guzman argues that the “GATT/WTO system has never been constrained so narrowly, and it is probably impossible to construct a system so constrained.”109 On similar lines, Cottier contemplates that in the Uruguay rounds of negotiations that led to the birth of the WTO, the refusal to negotiate investment protection standards and competition policies, accompanying the exclusive rights within the TRIPS Agreement, as well as the refusal to negotiate on labour standards, has been a missed opportunity.110 According to Petersmann, political settings and economic markets are both confronted with the same basic constitutional problem, i.e., “how markets can be constrained by agreed legal rules to be responsive to general citizen interests.”111 Nevertheless, WTO constitutionalism is a project in responding to the militating interests and values such a trade, health, and environment within the larger interpretative community. Consequently, the constitutional interpretation of the WTO is a deep concern for the developing and the least developed countries as it has the potential to restrict their exports.112 Indeed, when States perceive that the net benefits of the WTO Doha round is inadequate, they are likely to abandon the WTO and pursue more substantial commitments with a smaller group of like-minded trading partners.113 WTO constitutionalism then becomes a question of trade creation and trade diversion.

Andrew T. Guzman, Global Governance and the WTO, HILJ 45 (2004), 303, 305. von Bogdandy is sceptical about adding non-trade concerns into WTO, see von Bogdandy (note 35), 672. Ehrenberg proposes to treat child labour as an illegal trade subsidy that constitutes an unfair comparative advantage under the WTO, see Daniel S. Ehrenberg, The Labor Link: Applying the International Trading System to Enforce Violations of Forced and Child Labor, Yale Journal of International Law 20 (1995), 361, 403. 108

109

Guzman (note 108).

Thomas Cottier, The Legitimacy of WTO Law, in: Linda Yueh (ed.), The Law and Economics of Globalisation: New Challenges for a World in Flux (2009), 11, 33. 110

111 Ernst-Ulrich Petersmann, Constitutionalism and the Regulation of International Markets: How to Define the ‘Development Objectives’ of the World Trading System, in: Linda Yueh (ed.), The Law and Economics of Globalisation: New Challenges for a World in Flux (2009), 55. 112 For instance, a ruling by the Appellate Body on cut flowers from developing countries based on assumed violations of human rights not explicitly recognised in the text of the WTO and its covered agreement will lead to loss of exports for such countries. 113

Bradford (note 23), 55.

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B. The WTO’s Non-Trade Concerns

The environment was the first non-trade issue to sneak into the WTO adjudicative system.114 Energy governance, for instance, is the most recent in the list of trade and non-trade issues.115 The DSU is to function as court of law for the adjudication of legal trade issues and effective compliance after the decision is made.116 The Appellate Body functions like yet another international court with more powers for compliance and punishment for non-compliance.117 Should an agreement on compensation not be forthcoming there is a provision, Article 22 of the DSU, for the complainant to retaliate against the respondent.118 Thus the DSU authoritatively established an international court for international trade disputes. This is a definite step towards the legalisation of retaliation for noncompliance as against a diplomatic settlement in the GATT 1947.

C. The Appellate Body’s Constitutionalisation of the WTO Law in Anti-Dumping Cases

Article 17.6 (ii) of the Anti-Dumping Agreement119 states that: the [P]anel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the [P]anel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, WTO, EC – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body of 12 March 2001, WT/DS135/AB/R. 114

Gabrielle Marceau, The WTO in the Emerging Energy Governance Debate, Global Trade and Customs Journal 5 (3) (2010), 83. See Lorand Bartels, The Separation Of Powers In The WTO: How To Avoid Judicial Activism, ICLQ 53 (2004), 861, 889. See in detail Andrew D. Mitchell, Legal Principles in WTO Disputes (2010), 107. 115

116 See the Art. 3 (2) of the DSU, which says that “[t]he dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognise that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements”.

Kym Anderson, Peculiarities of Retaliation in WTO Dispute Settlement World, World Trade Review 1 (2002), 123. 117

118

Ibid.

119

WTO, Anti-Dumping Agreement (note 55).

486 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 the [P]anel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.120

This provision of the treaty first connects the interpretation of the WTO agreements to the VCLT and then opens the doors for multiple interpretations. Under certain conditions, Cho argues, the WTO court “may self-generate constitutional norms in an effort to regulate [S]tates’ behaviours that ambiguous treaty provisions may not fully capture.”121 The WTO’s constitutional revolution, as Cho asserts, originated from a rather unspectacular calculative methodology in the anti-dumping remedy known as “zeroing.”122 The WTO Anti-Dumping Agreement stipulates that when a provision “admits of more than one permissible interpretation,” the Appellate Body shall validate a domestic authority’s anti-dumping measure “if it rests upon one of those permissible interpretations.”123 In a series of high-profile decisions, the Appellate Body struck down all types of zeroing methodology challenged thus far.124 Surprisingly enough, these Appellate Body rulings do not look like a set of inadvertent rulings on the same subject; “rather, they constitute a deliberate and systematic pattern toward a new jurisprudence in this area.”125 Indeed it is a “serious judicial revolution,” of constitutional lawmaking in the Appellate Body’s “determined endeavour to contain WTO [M]embers’ manipulative use of zeroing methodologies under the subterfuge of the textual ambiguity of the relevant WTO norms.”126 The Appellate Body seems to have firmly recognised the structural damage that zeroing, if left unchecked, could inflict to international trade through the propagation of anti-dumping measures given after the US, India and China are the biggest users of anti-dumping measures.127 Presently, “certain fundamental, constitutional norms within the meaning of the WTO should tame an egregious form of protection120

See Art. 17.6 (ii) of the Anti-Dumping Agreement (note 55).

121

Cho (note 55), 622.

122

Ibid.

123

Art. 17.6 (ii) of the Anti-Dumping Agreement (note 55).

124

Cho (note 55), 623.

125

Ibid.

126

Ibid., 624.

127

Mark Wu, Antidumping in Asia’s Emerging Giants, HILJ 53 (2012), 1, 3 et seq.

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ist politics that the zeroing practice denotes.”128 As such, a constitutional lawmaking that “reconfigures the distribution of regulatory competence between the WTO and its [M]embers” is emerging.129 The Appellate Body’s innovative undertaking of constitutional lawmaking has normative consequences.130 This “normative supremacy of constitutional norms created by constitutional lawmaking applies to both WTO [M]embers and [P]anels.”131 In European Communities (EC) – Audio Cassettes132 the Panel sided with the EC in its decision, which was reminiscent of the Lotus Case doctrine. Here, the Panel ignored the general necessity of aggregating multiple results of comparison in any comparison methodology. The Panel’s report was not adopted, reflecting the high political profile that it engendered. As a result, this controversial practice became prevalent among the main users of anti-dumping remedies, such as the US and the EU, when India challenged the practice for the first time under the WTO system.133 The EC – Bed Linen134 Case was the very first Appellate Body decision which struck down the zeroing practice. Echoing EC – Audio Cassettes, the EC clung to strict textualism and argued that Article 2 (Determination of Dumping) of the WTO Anti-Dumping Agreement rendered no guide on how to combine individual dumping margins for specific product types to calculate an overall rate of dumping margin for the product under investigation. However, in a surprising turn from the old GATT jurisprudence, the Appellate Body rejected the EC’s position. The Appellate Body invoked a general obligation of “fair comparison” under Article 2 as it implied that the zeroing methodology would entail unfair results. The rules of interpretation enshrined in the VCLT’s Articles 31 and 32 do not explain Appellate Body’s this 128

Cho (note 55), 624.

129

Ibid., 627.

130

Ibid.

131

Ibid.

GATT Committee on Anti-Dumping Practices, European Communities – Anti-Dumping Duties on Audio Tapes in Cassettes Originating in Japan, Report of the Panel of 28 April 1995, ADP/136 (unadopted), available at: http://www.worldtradelaw.net/reports/gattpanels/audiocassettes.pdf (accessed on 25 March 2013). 132

133 WTO, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, Report of the Appellate Body of 12 March 2001, WT/DS141/AB/R. 134

Ibid., para. 11.

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change in interpretation. In US – Softwood Lumber V,135 the Appellate Body reaffirmed the case law established in EC – Bed Linen. The Appellate Body rejected the US zeroing methodology by denying its calculative selectiveness embedded in zeroing. In US – Zeroing (EC)136 the Appellate Body based its decision strictly on textual grounds and justified it from the standpoint of “customary rules of interpretation of public international law” under the VCLT. The Appellate Body possibly wanted to deflect the potential criticism of judicial activism in relation to Article 17.6 (ii) of the Anti-Dumping Agreement through this ostensibly literal interpretation. Rejecting zeroing through pure construction would have engulfed the Appellate Body with heavier attacks than it had invited under the current interpretation. In US – Softwood Lumber V137 the Appellate Body further moved to strike down zeroing in yet another comparison methodology under Article 2.4 of the Anti-Dumping Agreement, on “transaction-to-transaction” comparison for the same reasons on which it based its previous rulings as to zeroing. It held that “the use of zeroing under the transaction-to-transaction comparison methodology is difficult to reconcile with the notions of impartiality, even-handedness and lack of bias reflected in the ‘fair comparison’ requirement in Article 2.4”138 because it “distorts”139 certain export transactions (in that they are eventually zeroed) and consequently inflates dumping margins. However, the US – Zeroing (Mexico) Panel explicitly defied the Appellate Body’s established anti-zeroing position and instead reverted to the old position.140 Interestingly, it found support for its position in Article 19 (2) of the DSU that prohibits the Panel and the Appellate Body from adding to or diminishing the WTO Members’ rights and obligations. It also claimed that its reversal of the Appellate Body’s position in this issue was in pursuit of its obligation of an “objective examination” under Id., US – Final Dumping Determination on Softwood Lumber from Canada, Report of the Appellate Body of 11 August 2004, WT/DS264/AB/R, paras. 95 et seq. 135

136 Id., US – Laws, Regulations, and Methodology for Calculating Dumping Margins, Report of the Appellate Body of 14 May 2006, WT/DS294/AB/R, para. 128 (US – Zeroing (EC)). 137

Id., US – Final Dumping Determination on Softwood Lumber from Canada: Recourse to Article 21.5 of the DSU by Canada, Report of the Appellate Body of 15 August 2006, WT/DS264/AB/RW, para. 34. 138

Ibid., para. 138.

139

Ibid., para. 139.

Id., US – Final Anti-Dumping Measures on Stainless Steel from Mexico, Report of the Panel of 20 December 2007, WT/DS344/R, paras. 7.106, 7.115 (US – Zeroing (Mexico)). 140

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Article 11 of the DSU. The Appellate Body rejected the Panel’s premise that there can be multiple dumping margins, and emphasised that dumping is an export-specific concept which should be defined in terms of a product as a whole, based on the textual interpretation of GATT 1994 Articles VI (1), VI (2) and VI (6) (a) as well as WTO Anti-Dumping Code Articles 2.1, 2.3, 3.4, and 5.1.141 The Appellate Body ruled firmly against the US’ recurring claim that the Panel violated the standard of review under Article 17.6 (ii) of the Anti-Dumping Agreement. The Appellate Body’s constitutional hermeneutics was basically of a “teleological” nature.142

V. International Trade from Contract to a Multilateral Treaty The Lotus Case establishes that international law is a product of sovereign will.143 Just as in the Lotus Case, the principle of dubio mitius used in the interpretation of treaties also defers to the will of States. Chimni considered that the DSU should be substituted by a system that gives greater weight to national interpretations and determinations of rules.144 This comes from an understanding that “while the [Appellate Body] may be committed to a theoretical formalism, in practice it adopts an eclectic pragmatism that allows it to reach out to constituencies that wield power.”145 Since the WTO regime replaced the GATT 1947, many doubted the standing of the WTO law within international law at first.146 This is not surprising given that the old GATT referred to member countries as “contracting parties.” The nature of obligation within a contract is different from that under international law even though “contracting parties” is a term often used for parties to an international

141 Id., US – Final Anti-Dumping Measures on Stainless Steel from Mexico, Report of the Appellate Body of 30 April, 2008, WT/DS344/AB/R, para. 162. See also Armin von Bogdandy/Ingo Venzke, In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification, EJIL 23 (2012), 1, 16. 142

Cho (note 55), 640.

143

PCIJ, Lotus Case (note 82), para. 44.

144

Chimni (note 29), 264.

145

Chimni (note 89), 227.

146

Jiaxiang Hu, The Role of International Law In The Development of WTO Law, JIEL 7 (2004),

143.

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treaty.147 The regime of international trade began with diplomatic bargain among nations to reduce tariffs for an increased trade in goods.148 With the birth of the WTO free trade was reduced into a grand treaty with the number of member countries second only to the UN. Under the influence of the EU the treaty was given a constitutional renovation within the interpretative community.149 Just like human rights norms and treaties that sought to pull down the wall of sovereignty, trade is another international legal norm that in effect works towards the dilution of State sovereignty for the global public good of free trade.150 This services the teleology of the constitutionalisation of international trade law.151 Yet TRIPS exacerbates the longstanding debate regarding the relationship between intellectual property rights and development in relation to wealthy and developing nations.152 More precisely, any dispute at the WTO courts (Panels and Appellate Body) involves the interpretation of WTO agreements within the larger telos of free trade and sustainability. However, the formation of the WTO in 1995 with an Appellate Body for a legal resolution of disputes is evidence of the gradual and effective legalisation of international trade. A scholarly argument for a legalised trade

Sornarajah is the most powerful advocate of this view, saying that during 1960s, many contracts were internationalised to benefit powerful investors from developed countries. Using lowly sources of international law like arbitral awards and writings of qualified publicists of international law, Sornarajah argues, third World States were tied down to private contracts in stark opposition to the principles of state sovereignty. See M. Sornarajah, The International Law on Foreign Investment (3rd ed. 2010), 305. 147

148

See GATT 1947 (note 44).

Ernst-Ulrich Petersmann, Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, EJIL 13 (2002), 621. 149

150 According to China, the Panel should give careful consideration to the sovereignty of WTO Members to decide upon the pace and the extent of liberalisation of their services markets. The preamble of the GATS explicitly states that progressive liberalisation should be achieved while giving due respect to national policy objectives. See WTO, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Report of the Appellate Body of 21 December 2009, WT/DS363/AB/R, para. 46.

Laurence R. Helfer, Constitutional Analogies in the International Legal System, LLR 37 (2004), 193, 201. 151

152 Mark Schultz/Alec van Gelder, Creative Development: Helping Poor Countries by Building Creative Industries, Kentucky Law Journal 97 (2008–2009), 83.

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regime often comes in the vocabulary of constitutionalism.153 Also, the reach of the WTO law into domestic legal system has increased.154 The usual arguments for a constitutional interpretation of the WTO law are normative, rights-based and institutional. Some trade negotiators see international law within contractual scheme debunking constitutionalism. For instance, Cottier says: “[i]n the contractual, non-hierarchical and highly fragmented field of international law, the relationship of law and morality is more complicated.”155 A constitutional framework is lacking and none of the basic categories of natural law offer a suitable framework to analyse the legitimacy of rules in international law and of the WTO in particular.156 The textual aim of the WTO treaty is eroding tariff barriers which within public international law should depend upon the will of the State conducted through negotiations at ministerial conferences. International trade law, it would appear, stands against public international law then. The new WTO system grows from diplomacy and contract to a regime of treaties. Legal scholars have deployed a variety of hermeneutic schemes to read, interpret, and understand the WTO treaty; from contractual to constitutional. It is only understandable given that legal advocacy is about defending a position; depending upon who one argues for, a developed or developing country, a particular scheme is applied. The WTO is often thought of as a self-contained regime given its narrow mandate of international trade.157 But the DSU (Appellate Body and Panel), an addition to the GATT 1947, has reshaped this understanding. For the first time, an Appellate Body is supposed to function as an international trade court. However, unlike national courts, “States do not foresee a constitutional role for international tribunals, and are reluctant to place their confi-

153 Petersmann is the biggest advocate of this view, see Ernst-Ulrich Petersmann, Human Rights, Constitutionalism and the World Trade Organization: Challenges for World Trade Organization Jurisprudence and Civil Society, LJIL 19 (2006), 633. 154

McRae (note 46), 561.

155

Cottier (note 110), 17.

156

Ibid.

Lindroos and Mehling are of the view that while the WTO judiciary has recognised that the rules on world trade do not exist in isolation of general international law, a closer look at actual case law unveils a far more ambivalent picture. Therefore, according to them, the chimera of self-contained regimes is not easily dispelled. Anja Lindroos/Michael Mehling, Dispelling the Chimera of ‘Self-Contained Regimes’ International Law and the WTO, EJIL 16 (2005), 857. 157

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dence in the capacity and independence of the international tribunal coloured by nationality and power.”158

A. Trade Law v. Domestic Law

Traditionally, constitution is a subject of domestic law. A constitutional reading of the WTO disturbs the ontological premise of international law, i.e., State-centeredness. Furthermore, constitutional law is seen as a sacred law within a State: it is a higher law with a presumption against the change in basic structure. Constitutionalisation is a shorthand term both for the emergence of constitutional law within international legal order and for the spread of constitutionalism as a method of treaty interpretation. Classic international law is a product of the will of States or sovereigns. In the Lotus Case,159 the Permanent Court of International Justice held that “rules of law binding upon States […] emanate from their own free will.”160 However, this position is under attack today. Though consent protects the interests of States and supports notions of sovereign equality, according to Guzman, “it also functions as a barrier to effective cooperation in a world of vastly divergent priorities and concerns.”161 International trade is less about sovereign equality and more about bargain between sovereigns with both reciprocal and non-reciprocal reduction of tariffs. In Portugal v. Council, the European Court of Justice (ECJ) said that GATT contracting parties were free to agree on what effect the provisions of an agreement were to have, but if the question was not settled by the agreement it was for the ECJ to decide, on any question of interpretation.162 As such, this case canonised the importance of negotiations as the primary rule creating system within WTO system and denied any direct effect of WTO law within the EU.163

158

Babu (note 9), 61.

159

PCIJ, Lotus Case (note 82).

160

Ibid., para. 44.

161

Andrew T. Guzman, Against Consent, VJIL 52 (2011), 747, 752 et seq.

162

ECJ, Case C–149/96, Portugal v. Council, 1999 ECR I-8395, paras. 34 et seq.

Piet Eeckhout, Judicial Enforcement of WTO Law in the European Union – Some Further Reflections, JIEL 5 (2002), 91. 163

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B. The WTO’s Proper Mission

The proper mission of the WTO to date is political and prescriptive.164 The establishment of the WTO in many ways is a landmark in international law and interState adjudication.165 The WTO, according to some, represents a definitive move from a political diplomatic dispute settlement model under the GATT 1947 to a legalised dispute settlement model of the Appellate Body.166 Actually, largely ignored for a considerable period of time, the success and frequent use of second-generation tribunals such as the WTO have important implications for conventional analysis of international adjudication.167 The success of these tribunals flatly contradicts the claims, advanced by a number of academic commentators, that international adjudication is unimportant in contemporary international affairs and that States do not use international tribunals – especially effective tribunals.168 More specifically, Cho argues that the WTO, in alliance with other international institutions, must develop a synergistic linking within the constitutional structure of the global trading system.169 With the power to read and clarify WTO agreements, the Appellate Body took an ‘evolutionary’ course of interpretation allowing nontrade concerns of health, environment, and labour to enter. Given the rise of issues like global warming, global poverty, and continued child labour in certain sectors, the WTO became an ensemble of trade and non-trade issues. Environment, child labour, and health issues were bigger concerns in the developing and the least developed countries. Calls have also been made to “revisit the debate on intellectual property and human rights” within international trade law.170 Many developed nations would

164

Steve Charnovitz, Triangulating the World Trade Organization, AJIL 96 (2002), 28, 30.

165

See Peter Van den Bossche, The Law and Policy of the World Trade Organization (2007), 182 et seq.

166

Steinberg (note 49), 247.

Gary Born, A New Generation of International Adjudication, Duke Law Journal 61 (2012), 775, 850 et seq. 167

168

Ibid.

Sungjoon Cho, Linkage of Free Trade and Social Regulation: Moving Beyond the Entropic Dilemma, Chicago Journal of International Law 5 (2005), 625. 169

170 Peter K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era, Florida Law Review 64 (2012), 1045, 1048.

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only allow products made or harvested via environmentally sustainable methods.171 The developing and the least developed countries accused such measures as cover ups for protectionism or non-tariff barriers.172 Since 1995, such issues have led to many disputes at the WTO between developed, the developing and the least developed countries.173 Furthermore, such disputes have offered the Appellate Body to develop jurisprudence, constitutional or otherwise while reading the treaty text.

VI. The WTO’s Constitutionalism by Developing Countries An enhanced participation, Cottier says, in democratic processes and the development of checks and balances within the WTO commensurate with principles of constitutional law will allow the problem of domestic judicial implementation to be addressed.174 Empirical research by scholars suggests that today a fragmented constitutionalism is on display within international trade law.175 Though the international trade constitutionalism is not fully-fledged, that should be the aim, say the scholars.176 The Appellate Body has been seen as the engine of constitutionalisation.177 The WTO has created a body of law, which is applied through independent and compulsory judicial adjudication.178 There is, according to Gathii, “a simultaneous and

See Ilona Cheyne, The Precautionary Principle in EC and WTO Law: Searching for a Common Understanding, Environmental Law Review 8 (2006), 257. 171

172

Ibid.

173

Ibid.

174

Cottier (note 110), 42.

175

Armingeon/Milewicz/Peter/Peters (note 3), 69.

176

Ibid.

Some see the function of Art. XII of the GATT 1994 as allowing “the WTO system to grow into a constitutional role beyond its original scope but no faster than a corresponding acceptance by the international community,” see Hannes L. Schloemann/Stefan Ohloff, Constitutionalization and Dispute Settlement in the WTO: National Security as an Issue of Competence, AJIL 93 (1999), 424, 446. See, e.g., Deborah Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (2005). 177

178

von Bogdandy (note 35) 616.

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dialectical co-existence of both free trade and social concerns within the WTO.”179 In the context of international trade, “the fundamental theorem of welfare economics often align[s] national and global public interest welfare with liberalized trade.”180

A. Separation of Powers as Constitutionalism

von Bogdandy believes that the WTO agreement has an inbuilt separation of powers mechanism like a domestic constitution, and it also draws conceptually on the traditional separation of powers doctrine and yet establishes an organisation that exercises only one of those powers.181 The WTO Agreement reproduces the traditional conceptual distinctions developed by the theory of the [S]tate with respect to the functions of public authority in a surprisingly faithful way. That theory considers legislation, execution and adjudication as the three public functions with respect to the [S]tate’s inner sphere […] Article III WTO, which lays out the functions of the WTO, […] provides a first hint as to what extent the WTO shall exercise the various activities of public authority. Article III:1 WTO concerns executive function, [A]rticle III:2 WTO the legislative function, and [A]rticle III:3 WTO the adjudicative function. Article III:4 WTO can be considered as a new strategy of implementation which embraces elements of execution and adjudication, and [A]rticle III:5 WTO concerns foreign relations.182

Thus, a case for the WTO’s constitutional feature is made where separation of powers is inbuilt in the WTO agreements.183 As is well known, the dispute settlement of the WTO is a central element in providing security and predictability to the multilateral trading system.184 Howse argues that the WTO legal system and particularly the WTO dispute settlement system, “possess[es] some of the characteristics of James Thuo Gathii, Re-Characterizing the Social in the Constitutionalization of the WTO: A Preliminary Analysis, Widener Law Symposium Journal 7 (2001), 137. 179

180 Gregory Shaffer/Joel Trachtman, Interpretation and Institutional Choice at the WTO, VJIL 52 (2011), 103, 108. 181

von Bogdandy (note 35), 617.

182

Ibid., 614.

183

Bartels (note 115), 861.

Art. 3 (2) of the DSU; see also WTO, Japan – Taxes on Alcoholic Beverages, Report of the Appellate Body of 1 November 1996, WT/DS8/9/11/R, 13; id., US-Section 301 Trade Act, Report of the Panel of 27 January 2000, WT/DS152/R, paras. 6.14, 7.75. The Panel concluded that the possibility of US unilateral measures was contrary to the very nature of the obligation contained in Art. 23 of the DSU. 184

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an effective or efficacious legal system” that is “connected to the capacity for evolution through incremental practice.”185 The WTO is also a reply to the sceptics of international law, “who contend that there can be no legally binding obligations at the international level because there is no central authority to enforce the rules.”186 But an increased legalism allows the Appellate Body to become active in contravention to the will of the sovereign expressed in the Lotus Case. This is a cause of concern for developing and the least developed countries. Will the WTO Agreement be read as establishing a basic norm of free trade before seeking the agreement of non-developed countries? Will free trade become a jus cogens norm from which derogation is not allowed even though S&D treatment already exists in the WTO scheme?

B. Migration of Constitutionalism to the Courts of Developing States

In State of Punjab v. Devans Modern Breweries the Indian Supreme Court said that Socialism might […] be present in the Preamble of [the Indian] Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away.187

The court stated further that: [a]lthough, the United States is guided by a capitalist philosophy unlike the socialist policy laid down in the Indian Constitution, the very fact that changes in society have to be reflected in the interpretation of the Constitution, while still preserving the core constitutional intent of the Constitutional makers is a factor to be reckoned with. This has never

185 Howse (note 42), 224: “[t]he Uruguay Round negotiations began and went quite far before the end of the Cold War, but the end of the Cold War and related global developments influenced, in particular, the creation of what one might call the crown jewel of the WTO legal system-the Appellate Body” (footnotes omitted).

See Joanna Langille, Neither Constitution Nor Contract: Understanding the WTO by Examining the Legal Limits on Contracting Out Through Regional Trade Agreements, New York University Law Review (NYULR) 86 (2011), 1482, 1483: “[u]nlike in the domestic context, where laws are enforced through police and judicial systems”. 186

187 Indian Supreme Court, State of Punjab v. Devans Modern Breweries, Judgment of 20 November 2003, MANU/SC/0961/2003, para. 326.

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been more important than in the age of globalization when vast changes are taking place both at the social and political levels.188

In a loosely worded judgment, the Indian Court confessed the Indian intellectual property law to “be an exact copy of GATT and WTO.”189 Indeed, with the intent to harmonise the protection of Intellectual Property rights globally, the TRIPS Agreement has provided minimum standards of protection that WTO Member States are obligated to implement into their national legislations.190 Article 246 of the Constitution of India191 confers power to Parliament to enact laws with respect to matters enumerated in List I of the Seventh Schedule to the Constitution. Entries 10 to 21 of List I of the Seventh Schedule pertain to international law. In State of West Bengal v. Kesoram Industries the Indian Supreme Court said “in making any law under any of these entries, parliament is required to keep Article 51 in mind.”192

VII. The Appellate Body’s Activism, Developing Countries and Least Developed Countries A decade into operation of WTO, Charnovitz presented “an analytic method for considering proposals to expand the scope of the WTO.”193 The WTO agreements constitute a single undertaking: “that is, the Member States have no choice but to accept all the WTO agreements as a whole.”194 Shaffer and Trachtman develop a new framework for understanding the drafting and interpretation of WTO agreements – that of comparative institutional analysis.195 Treaty drafters could circumscribe judicial 188

Ibid., para. 327.

Indian Supreme Court, Tata Consultancy Services v. State of Andhra Pradesh, Judgment of 5 November 2004, MANU/SC/0950/2004, para. 45. 189

190

Nonaka (note 71), 38.

Constitution of India, 26 November 1950, as amended by the 97th Amendment (2011), available at: http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm (accessed on 26 March 2013). 191

192 Indian Supreme Court, State of West Bengal v. Kesoram Industries, Judgment of 15 January 2004, 10 SCC 201, para. 239. 193

Charnovitz (note 164), 29.

See Yasuhei Taniguchi, The WTO Dispute Settlement as Seen by a Proceduralist, CILJ 42 (2009), 1, 5 (footnote omitted). 194

195

Shaffer/Trachtman (note 180), 105.

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authority, both formally and informally, through the precision of the text drafted, by providing rules for the interpretive process, and by challenging, obstructing, refusing to recognise and potentially overruling by treaty amendment the interpretive choices that judges make.196 Important concerns that were left aside by negotiators during the Uruguay rounds the WTO Panels and Appellate Body are certainly debilitating the fine balance of the WTO treaty.197 This is a form of constitutional reading of trade law where trade is seen not as a fragment of international law but an ensemble of non-trade issues. Such a constitutionalisation of WTO leads to the developing and the least developed countries having lesser policy space. Furthermore, within the TRIPS agreement, a violation of intellectual property law in developing or least developed countries might attract WTO-mandated retaliation from developed countries with higher intellectual property protection. Thus, the more the WTO law is constitutionalised, the less effective the will of the sovereign in relation to domestic policy space. Thus viewed, constitutionalisation of WTO law diminishes and undermines the established sources of international law. It also diminishes the meaning of the WTO Agreement. Automatically, an unsettling of international law’s sources obfuscates an already muddled system. This induces insecurity and incentive for exiting for the developing and the least developed countries from the international system.198 In fact a constitutional reading of the WTO’s anti-dumping cases led to a series of losses for the US, which led to the US urging for a diplomatic settlement of zeroing.199 If the world’s most powerful State, the US, is advocating a non-legal settlement for a part of the anti-dumping adjudication, the insecurity of the developing and the least developed countries should be rather obvious. A constitutional reading of the WTO law seems to alter the fine balance and bargain between Member States that the actual treaty represents. 196

Ibid., 110.

Gabrielle Marceau, WTO Dispute Settlement and Human Rights, EJIL 13 (2002), 753, 753: “[…] a good faith interpretation of the provisions of the WTO, including its exception provisions, should lead to a reading and application of WTO law consistent with human rights”. 197

198

Joost Pauwelyn, The Transformation of World Trade, Michigan Law Review 104 (2005), 1.

See Sungjoon Cho, The WTO Appellate Body Strikes Down the U.S. Zeroing Methodology Used in Anti-Dumping Investigations, ASIL Insights 10 (10) (2006), available at: http://www.asil.org/ insights060504.cfm (accessed on 15 April 2013). 199

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Furthermore, a constitutional reading of the WTO might lead to issues of democratic deficiency in the WTO.200 International law is said to be fragmenting, creating issues of norm shopping.201 Also, a rather reluctant approach in going to the ICJ by the developing and the least developed countries does not translate into same indifference to WTO.202 This development puzzles the adherents of democratic theory in international law. The signing of a treaty, it has been argued, undermines a democratic State, as “[t]reaties are exceptions to ordinary lawmaking.”203 Treaties also can present themselves “as exceptions to this fundamental rule of democratic legislation.”204 Treaties can also claim to be law beyond the power of a democratic legislature to change.205 Yet unlike constitutions, treaties require less, not more, democratic mobilisation and participation in order to be enacted.206 They are drafted frequently in secret, signed by executive officers, usually presented to legislators on a take-it-or-leaveit basis, and in the US do not even require the consent of the more representative House of Representatives.207 Thus, if a treaty has the capacity to bind the States and they are made with little or no democratic mobilisation, why have the developing countries been keen on using a treaty-based international adjudicatory process in the WTO? Establishment of international courts for the resolution of disputes involving two or more nations has been the natural fruition of efforts to promote and implement international law since the establishment of the PCIJ and the ICJ. But clearly the WTO court system has attracted more cases in lesser time than the ICJ.208 It can be reasonably agreed upon the fact that the developing and the least developed countries have expressed a growBhupinder S. Chimni, The World Trade Organization, Democracy and Development: A View from the South, Journal of World Trade (JWT) 40 (2006), 5. 200

201

See in general Pauwelyn/Salles (note 93).

See Jan Bohanes/Fernanda Garza, Going Beyond Stereotypes: Participation of Developing Countries in WTO Dispute Settlement, Trade Law and Development 4 (2012), 45. 202

203

Jed Rubenfeld, Unilateralism and Constitutionalism, NYULR 79 (2004), 1971, 2007.

204

Ibid., 2008.

205

Ibid.

206

Ibid.

207

Ibid.

Cesare P. R. Romano, International Justice and Developing Countries: A Quantitative Analysis, Law and Practice of International Courts and Tribunals 1 (2002), 367. 208

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ing confidence in international economic law’s adjudicatory process.209 The question is whether that confidence would whiter away if the WTO is read as a constitution.

VIII. Case-Law Evidence of the Constitutional Argument by Developing States, the Appellate Body and Panels In the post-colonial era, many developing and the least developed countries have established a successful constitutional democracy. This newfound confidence is colouring such developing countries’ international advocacy.210 In the WTO’s India – QRs Case,211 India’s obsession with a constitutional imagery was quite obvious.

A. The India – QRs Case: WTO’s Separation of Powers Argument Rejected

In this case, India submitted that: […] the principle of institutional balance has an important role to play in the WTO context as well.212 […] The Panel’s view [refuting] the distribution of powers between the judicial and the political organs of the WTO is inconsistent with the practice under the GATT 1947.213 […] India disagrees […] that assigning legal functions to other WTO bodies is only relevant if there is an express provision that limits the [P]anel’s competence. Domestic courts and the [ECJ] have developed doctrines providing for deference by courts to political institutions without there being an explicit limitation on their competence. There is, therefore, no reason why [P]anels and the [Appellate Body] could not do the same.214 209 See WTO, Participation of developing countries in World Trade: Overview of major trends and underlying factors, Committee on Trade and Development, Note by the WTO Secretariat, 16 August 1996, WT/COMTD/W/15, available at: http://www.wto.org/english/tratop_e/devel_e/w15.htm (accessed on 15 April 2013). See also, Prabhakar Singh, International Law as Intimate Enemy, ORIL 14 (2012), 377.

Prabhakar Singh, Why Wield Constitutions to Arrest International Law, Asian Yearbook of International Law 15 (2010), 80. 210

211

WTO, India – QRs (note 17).

212

Ibid., para. 10.

213

Ibid., para. 11.

214

Ibid., para. 23.

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The Appellate Body decided that dispute settlement Panels are competent to review matters concerning balance of payments (BOP) restrictions and rejected India’s argument that a principle of institutional balance requires that matters relating to BOP restrictions be left to the relevant political organs – the BOP Committee and the General Council. The Appellate Body did not see any ‘separation of powers’ envisaged by the framers of the WTO Agreement. Notably, in opposition to this view, as discussed before, von Bogdandy explicitly talks about the separation of power within the WTO.215 von Bogdandy observes that the “WTO Agreement reproduces the traditional conceptual distinction developed by the theory of the [S]tate with respect to the functions of public authority in a surprisingly faithful way.”216 Three sub-articles of Article III WTO hint at the executive, legislative, and administrative functions of this international trade body.217 India’s confidence in its constitutional success at home led to India making a separation of power arguments at the Appellate Body. India further argued that: a doctrine of institutional balance has been developed by the Court of Justice of the European Communities in cases involving the question whether organs of the Communities have exceeded their powers or have infringed upon the powers of the other organs.218

India asserted that the WTO Panel’s recognition of a “dual track system”219 under which both panels and the BOP Committee are equally competent to examine the balance of payment justification of measures notified under Article XVIII (B) of the GATT 1994 is, in effect, a propagation of the principle of institutional duplication.220

215

von Bogdandy (note 35), 614.

216

Ibid.

217

Ibid.

218

WTO, India – QRs (note 17).

219

Ibid., para. 24.

India contended that “while Article 13 of the DSU permits the [P]anel to consult the IMF as an expert to obtain its opinion, the [P]anel could not permit the opinion of the expert to substitute for its own. It follows from the reasoning of the ICJ in the Corfu Channel Case that an expert appointed by a judicial tribunal can perform only the functions of gathering facts and rendering expert opinions,” see ibid., para. 49. 220

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India is known for its powerful judiciary and constitution.221 Separation of powers is central to India’s administrative routine. India’s extraordinary belief in the power of constitutionalism is reflected in the arguments before the Appellate Body. At the Appellate Body India tried to see the WTO as a constitution while distinguishing between the political and judicial wing of the WTO, which, of course, was rejected.

B. Brazil – Export Financing Programme for Aircraft: Appellate Body Makes a Separation of Powers Argument

In Brazil – Export Financing Programme for Aircraft,222 on 19 June 1996, Canada requested consultations with Brazil under Article 4 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement),223 which provides for special procedures for export subsidies. Canada claimed that export subsidies granted under the Brazilian Programa de Financiamento às Exportações to foreign purchasers of Brazil’s Embraer aircraft are inconsistent with Articles 3, 27.4 and 27.5 of the SCM Agreement. This case raises two issues. First, the Panel nullified the meaning of S&D treatment. The Panel further said that: an examination as to whether export subsidies are inconsistent with a developing country Member’s development needs is an inquiry of a peculiarly economic and political nature and notably ill-suited to review by a Panel whose function is fundamentally legal.224

Notably, while the Appellate Body rejected a separation of powers arguments in the India – QRs Case, here the Panel invoked it to Canada’s benefit.

K.G. Balakrishnan (Former Chief Justice of India), Judicial Activism Under the Indian Constitution, Address at the Trinity College Dublin, Ireland, 14 October 2009, available at: http://supreme courtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_dublin_14-10-09.pdf (accessed on 15 April 2013). 221

222 WTO, Brazil – Export Financing Programme for Aircraft, Report of the Appellate Body of 26 July 2001, WT/DS46/RW/2. 223 Id., Agreement on Subsidies and Countervailing Measures, 15 April 1994, WTO Agreement, Annex 1A, available at: http://www.wto.org/english/tratop_e/scm_e/subs_e.htm (SCM Agreement) (accessed on 26 March 2013). 224 Id., Brazil – Export Financing Programme For Aircraft, Report of The Panel of 14 April 1999, WT/DS46/R, para. 7.89.

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C. Mexico – Measures Affecting Telecommunications Services: The Panel’s Constitutional Interpretation

The Panel report in Mexico – Telecommunication related to the use of the GATS.225 The report […] demonstrates that if the rights-based constitutionalist approach were to gain currency among the WTO adjudicatory organs, then perhaps even narrowly designed commitments based only on non-discrimination would be susceptible to expansive interpretation consistent with constitutional guarantees of economic freedom.226

As seen in India – QRs, Brazil – Aircraft and Mexico – Telecommunications, the WTO judicial organ’s interpretation goes against developing countries. The measure at issue was Mexico’s domestic laws and regulations that govern the supply of telecommunication services and its federal competition laws.227 The Panel held that Mexico was in violation of its commitments under the provision because the interconnection rates charged by Mexico’s major suppliers to US suppliers were not ‘cost-oriented’ as they were in excess of the cost rate for providing the interconnection to the US suppliers. The Panel in this case exhibited a “tendency to advance liberalization through the adjudicatory bodies.”228 Kill argues that the Panel’s constitutionalism “is not solely a product of rights-based constitutional theory, but rather also an institutional feature of the WTO.”229 Therefore, the result of the Telmex Report undoubtedly contributes to increased liberalisation. And arguably a rights-based constitutionalist policy preferences and methodology evidenced in the Telmex Report might ultimately weaken the institutional legitimacy of the WTO.230 This has a capacity to induce insecurity among developing and least developed countries.

225 Id., Mexico – Measures Affecting Telecommunications Services, Report of the Panel of 2 April 2004, WT/DS204. 226

Kill (note 3), 113.

227

Ibid.

228

Ibid., 119.

229

Ibid.

230

Ibid., 113.

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IX. Conclusion This article argues that the birth and nutrition of mercantile metaconstitutionalism mostly by German scholars231 is not in the interest of the developing countries and the least developed countries. The interpretative power in international law […] is nowadays scattered between influent prolific minds affiliated with prestigious research institutions, domestic and international courts, international and regional lawcodifying bodies (most of which are in developed countries), and, more occasionally, nongovernmental organizations […], which compete with one another for interpretative authority and persuasiveness.232

Perhaps this explains the European verve for a constitutional vocabulary for international law. The WTO case law illustrates that through a “judicial dialogue with international tribunals,” the ECJ has bypassed the conundrum of direct effect to offer domestic law effect to international agreements.233 But then as Weiler says, the GATT and the EC (now EU) were not only time twins; they were parented by similar beliefs.234 Therefore, bypassing the enigma of monism for a muted dialogue is a possibility for the EU. However, thanks to the scourge of colonialism, though most of the developing and the least developed countries were GATT’s time-twins, they did not have the privilege of sharing common beliefs with the GATT like the EU. Furthermore, the ‘juridification’ of GATT in 1995 as a ‘package deal’ not simply impacts, among other things, the “prospect of having authoritative interpretations of clumsy or deliberate drafting of opaque provisions.”235 Weiler, further argues that “it imports, willy-nilly, want it or not, the norms, practices, habits – some noble some self-serving, some helpful some disastrous, some 231 Jürgen Habermas, The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society, Constellations 14 (2008), 444; Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, EJIL 15 (2004), 907. See also Armin von Bogdandy, Constitutionalism in International Law: Comment on a Proposal from Germany, HILJ 47 (2006), 223. Fassbender (note 43), 531. 232

Jean D’Aspremont, Wording in International Law, LJIL 25 (2012), 575, 575.

Marco Bronckers, From ‘Direct Effect’ To ‘Muted Dialogue’: Recent Developments in the European Courts’ Case Law on the WTO and Beyond, JIEL 11 (2008), 885, 885. 233

Joseph Weiler, Cain and Abel – Convergence and Divergence in International Trade Law, in: id. (ed.), The EU, the WTO, and the NAFTA: Towards a Common Law of International Trade? (2000), 1. 234

235 Id., The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement, JWT 35 (2001), 191, 197.

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with a concern for justice others with a concern for arcane points of process and procedure – of legal culture.”236 The mercantile metaconstitutionalism is a product of a particular legal culture, i.e., European. If adopted by the WTO judiciaries, mercantile metaconstitutionalism constitutes a cheating on the developing and the least developed countries vis-à-vis agreed bargain that the WTO treaty embodies and epitomises. For instance, it works to dilute GSP and S&D provisions. It only adds to the identified factors that hold back the developing and the least developed countries from forwarding a sustained critique of the role and power in the interpretation of the WTO treaty.237 The absence of enough expertise in WTO law is one such factor.238 It means, Chimni says, that developing country governments do not carefully study WTO Panel and Appellate Body reports, in particular when they are not directly involved in the case.239 Furthermore, the “sheer volume of WTO jurisprudence being produced”240 makes it “difficult to carry out an assessment”241 given the lack of technical support. Therefore, as Chimni correctly postulates, “the role and power of interpretations by the WTO Appellate Body and Panels […] has not received adequate attention of policy makers in China and India and developing countries as a whole.”242 Chimni calls this “unfortunate as it is the interpretative moment that decides the balance of rights and obligations embedded in the WTO agreements.” 243 Mercantile metaconstitutionalism is one of those interpretative tools used and advocated by European lawyers. What is more, “the debate of a textual versus a lawmaking or gapfilling approach” within the WTO “is a contrived one, positing a false dichotomy that does not capture the actual practice of WTO adjudicative bodies.”244 Furthermore, the unrepresentative character of the Members of the WTO Panels and Appellate 236

Ibid.

237

Chimni (note 89), 220.

238

Ibid.

239

Ibid.

240

Ibid.

241

Ibid.

242

Ibid., 247.

243

Ibid.

244

Ibid.

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Body and their lack of accountability to the people makes them “unsuitable to entrust, explicitly or implicitly the liberal power of interpretation enjoyed by their domestic counterparts.”245 Some observations are listed below. 1. WTO law should use the VCLT for interpretation. Any deviation has to be done after a mandate from the General Council and Ministerial Conference only. 2. The use of constitutionalism as a methodology, as the Appellate Body did in AntiDumping cases, is good in certain sectors if countries are inventing new ways to use Anti-Dumping laws as an alibi for protectionism (first the US and now China and India). This is contrary to the spirit of GATT/WTO. 3. Constitutionalism is a question of both how much (quantitative) and where (qualitative) to apply. 4. There is a strong support for a pro-constitutional reading by EU scholars (mostly German). Nonetheless, even some developing countries have used a balance of power argument before the Appellate Body. 5. Consequently, constitutional reading of the WTO law is gaining currency in developing and least developed Members. The question is about the true or uniform meaning of what constitutionalism of WTO law is. 6. A constitutional method of WTO law’s interpretation should be applied on case-bycase basis as any grand theory of trade constitution is highly controversial and not practical, especially in the wake of the ongoing financial crisis. 7. Constitutional reading, a construction not supported by the text of the WTO treaty, nullifies the S&D provisions that exist within the text of the WTO Agreement.

In fact in a judgment delivered on 1 April 2013, the Indian Supreme Court noted the Indian government’s views against any attempt at standard-setting on the reading of international law into domestic law by the western countries. “The Indian law,” Justice Alam said, noting the Indian government’s argument, “must be judged and interpreted on its own terms, and not on the basis of standards of patentability prescribed in some countries of the western world.”246 In this case, the Indian Supreme Court appraised the Indian legislature’s attempt at harmonising the Indian patent law with the provisions of the TRIPS Agreement. According to the Court, India in such ways strove to balance its obligations between TRIPS, an international treaty, and its commitment to protect and promote public health considerations, “not only of its own 245

Babu (note 9), 61 et seq.

246

See Novartis AG v. Union of India, Judgment of 1 April 2013, MANU/SC/0281/2013, para. 65.

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people but in many other parts of the world (particularly in the Developing and the Least Developed Countries).”247 By characterising the WTO treaty system as a constitution, one transforms its character from that of a complex, messy, negotiated bargain of diverse rules, principles, and norms into a single structure.248 A progressive view of WTO constitutionalism sees the WTO transforming itself into a socially just, global economic government by assimilating social and environmental governance into its institutions.249Commentators from developing countries accept that the DSU reforms were aimed at mitigating the role of power within bargain system by a gradual transformation of the WTO into a rule-based system.250 The question that then arises is whether a constitutional reading of the WTO facilities a rule-based system or whether it simply replaces the power of bureaucrats by the liberalism of judges within the world trade court. Would this not undermine, given that commentators have criticised the activism of the Appellate Body, the functioning of the WTO system in the long run by earning the mistrust of the developing and the least developed countries?

Ibid., para. 66. With these words, speaking on behalf of the developing and the least developed countries, the Indian Supreme Court completely dismissed any constitutional reading of the WTO law. 247

248

Howse/Nicolaidis (note 13), 74.

249

Ibid., 75.

250

Babu (note 9), 87.

Scotland: Independence and Membership of the UN and the EU NICHOLAS TSAGOURIAS(

ABSTRACT: The article considers the position of Scotland as member of the United Nations and of the European Union if the proposed referendum returns a pro-independence majority. Its main argument is that Scotland as a new State will be required to apply afresh for membership whereas the remaining UK, as the continuing State, will retain its membership of these two organisations. It also contends that, whereas the law, politics and practice of admission to the United Nations indicate that Scotland’s admission to the United Nations will be fast, the law and politics of membership of the European Union make the admission process unpredictable. KEYWORDS: United Nations, European Union, Scotland, Independence, Secession, Admission

I. Introduction The announcement by the Scottish Government of its intention to hold a referendum in 2014 to allow the Scottish people to decide on the future of their country has triggered legal as well as political debates.1 In the first place it has given rise to constitutional questions about the locus of the power to authorise the referendum, the legal effects of the referendum, and the legal management of the post-referendum situation. It has also given rise to a host of international law questions since the Scottish people will decide whether Scotland should become an independent state. Amongst the international law questions that arise is the question of whether Scotland will remain a member of those international organisations (IOs) with which it is currently associ(

Professor of International Law at the University of Sheffield. Email: [email protected].

Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, 15 October 2012, available at: http://www.scotland.gov.uk/ Resource/0040/00404789.pdf (accessed on 30 October 2012). 1

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ated as part of the United Kingdom (UK). The official views on this issue vary. As far as membership of the United Nations (UN) and the European Union (EU) is concerned, the UK Government has received advice to the effect that an independent Scotland, as a new State, will be required to apply anew for membership.2 For some time the Scottish Government argued that, according to legal advice it has received, it will automatically become a member of the EU although recently it admitted that it had not received such advice.3 The European Commission has also entered the fray by stating that a country that leaves an existing Member State should be treated as an ‘accession State’.4 This article examines the question of how Scotland’s membership of IOs will be effected if the referendum delivers a pro-independence verdict. It will focus specifically on the United Nations and the EU, two of the most important international organisations, membership of which entails important political, legal, and economic consequences. To that end, this article will first examine the question of how international law will portray Scotland’s withdrawal from the UK, before discussing the legal options available to Scotland concerning its membership of the UN and the EU.

2 James Crawford/Alan Boyle, Opinion: Referendum on the Independence of Scotland – International Law Aspects, in: United Kingdom Government, Scotland analysis: Devolution and the implications of Scottish independence (2013), Annex A, 64, available at: https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/79417/Scotland_analysis_Devolution_and_the_imp lications_of_Scottish_Independan…__1_.pdf (accessed on 28 February 2013). See also Arabella Thorp/ Gavin Thompson, Scotland, Independence and the EU, International Affairs and Defence Section, Economic Policy and Statistics Section, House of Commons Library, Note SN/IA/6110, 8 November 2011, 6, available via: http://www.parliament.uk/briefing-papers/SN06110 (accessed on 6 February 2013).

Simon Johnson, The Telegraph, 10 September 2012, SNP urged to publish secret legal advice on separate Scotland EU membership, available at: http://www.telegraph.co.uk/news/uknews/ scotland/8753776/SNP-urged-to-publish-secret-legal-advice-on-separate-Scotland-EUmembership.html (accessed on 16 October 2012); Severin Carrell, The Guardian, 23 October 2012, Alex Salmond accused of misleading Scottish voters about EU legal advice, available at: http://www. guardian.co.uk/politics/2012/oct/23/alex-salmond-eu-legal-advice-scotland (accessed on 28 October 2012). 3

Severin Carrell, The Guardian, 12 September 2012, Barroso casts doubt on independent Scotland’s EU membership rights, available at: http://www.guardian.co.uk/politics/2012/sep/12/barroso-doubtscotland-eu-membership (accessed on 16 October 2012); Simon Johnson, The Telegraph, 12 September 2012, European Commission: Separate Scotland forced to reapply for EU membership, available at: http://www.telegraph.co.uk/news/uknews/scotland/9303587/European-Commission-SeparateScotland-forced-to-reapply-for-EU-membership.html (accessed on 16 October 2012). 4

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II. Scottish Independence: A Case of Secession If, following the proposed referendum, Scotland were to withdraw from the UK, this would be treated in international law as a case of secession. Secession describes a process whereby part of the territory and people of an existing State separate from that State to form a new State; the Canadian Supreme Court has defined secession in similar terms. According to the Court, it is “the effort of a group or section of a State to withdraw itself from the political and constitutional authority of that State, with a view to achieving statehood for a new territorial unit on the international plane.”5 Secession often emits negative connotations, implying an illegal act.6 This is not how the term ‘secession’ is used here; instead it is used to describe a mode of State disaggregation which can be consensual or non-consensual. As a matter of fact, international law does not deal with secession as such; it neither prohibits nor authorises the act.7 What international law does is to deal with certain legal consequences arising from the act of secession. In the first place, if the process according to which it has been effectuated violates certain rules of international law, for example the rule on the non-use of force, international law attaches the sanction of illegality.8 Such is not the

Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 83. According to Restatement (Third) of the Foreign Relations Law of the United States, ‘secession’ is a situation where “a State that wholly absorbs another State, that takes over part of the territory of another State, that becomes independent of another State of which it had formed a part, or that arises because of the dismemberment of the State of which it had been a part,” see Restatement (Third) of the Foreign Relations Law of the United States (1987), para. 208. See also Daniel Thürer/Thomas Burri, Secession, Max Planck Encyclopaedia of Public International Law, available via: www.mpepil.com (accessed on 6 February 2013). Karl Zemanek, State Succession after Decolonisation, Recueil des Cours of the Hague Academy of International Law (RdC) 116 (III) (1965), 181, 189 et seq. 5

Marcelo G. Kohen, Introduction, in: Marcelo G. Kohen (ed.), Secession: International Law Perspectives (2006), 3. See Crawford/Boyle (note 2), 72, para. 22 (and in particular 22.2), using the term ‘negotiated independence’. 6

7 International Court of Justice (ICJ), Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403, paras. 79–84 (Kosovo Advisory Opinion). See also written statement of the United Kingdom, 17 April 2009, 93, para. 5.33, available at: http://www.icj-cij.org/docket/files/141/15638.pdf (accessed on 6 February 2013). 8 ICJ, Kosovo Advisory Opinion (note 7) para. 81; Anne Peters, Does Kosovo Lie in the Lotus-Land of Freedom?, Leiden Journal of International Law (LJIL) 24 (2011), 95, 105–107; Antonello Tancredi, A normative ‘due process’ in the creation of States through secession, in: Kohen (note 6), 171.

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case here because Scotland’s secession from the UK would take place with the consent of the UK Government and following a referendum.9 Secondly, international law deals with the question of the legal identity of the States that emerge from the process of secession.10 According to international law doctrine and practice, there is a presumption that the State that suffered secession but has not disappeared continues the legal personality of the pre-secession state. This means that the post-secession state is recognised as being identical in legal terms to the pre-secession State, whereas the seceding State is treated as a new state whose personality is different from the personality of the State from which it seceded.11 This distinguishes secession from other modes of State disaggregation, such as separation or dissolution. Although these terms are not always used accurately due to the fact that State disaggregation is an acutely political process, in a case of dissolution a State ceases to exist as a legal person and no State continues its legal personality whereas, in cases of separation, all new States will succeed to the personality of the pre-existed States. One could thus say that the dismemberment of Czechoslovakia (the Czech and Slovak Federal Republic) is a case of dissolution, because Czechoslovakia ceased to exist as a State and as a legal person and neither the Czech nor the Slovak Republic claimed to continue the personality of Czechoslovakia,12 whereas the dismemberment of the United Arab Republic is a case of separation, because its components, Egypt and Syria, continued their pre-existing legal personalities.13

9 To give another example, Eritrea seceded from Ethiopia in 1993 following a referendum but its right of secession was recognised by the new Ethiopian government that succeeded the Menghistu regime. See Raymond Goy, L’indépendance de l’Erythrée, Annuaire Français de Droit International 39 (1993), 337; Bereket Habte Selassie, Self-Determination in Principle and Practice: the EthiopianEritrean Experience, Columbia Human Rights Law Review 29 (1997), 91. Contra, see Minasse Haile, Legality of Secessions: The Case of Eritrea, Emory International Law Review 8 (1994), 479. 10 Brigitte Stern, La succession d’États, RdC 262 (1996), 9, 40; Martti Koskenniemi, Report of the Director of Studies of the English-Speaking Section of the Centre, in: Pierre Michel Eisemann/Martti Koskenniemi (eds.), State Succession: Codification Tested against the Facts (2000), 65, 119–125. 11 April 3, 2013As was stated, secession does not “result in the termination of the international legal personality of the predecessor State.” See International Law Association (ILA), Rio de Janeiro Conference (2008), Aspects of the Law of State Succession, Draft Final Report, 64, available at: http://www.ila-hq.org/ download.cfm/docid/606A1745-5CE4-49D9-8326776670521DA9 (accessed on 6 February 2013). 12 Konrad G. Bühler, State Succession and Membership in International Organizations (2001), 273–283. 13

Ibid., 50–61.

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In the case at hand, the United Kingdom would neither dissolve, nor would it break up into its components if Scotland were to withdraw from the Union, but would continue to exist as a State, albeit with reduced territory and population. Thus, the remaining UK would continue the legal personality of the pre-secession UK, being the same legal person, whereas Scotland would be a new State with new legal identity. It should be recalled in this regard that the withdrawal of the Irish Free State from the United Kingdom did not affect the continuation of the United Kingdom as a State.14 Be that as it may, the question that could be asked is whether there might be changes in territory, population or government that could affect the identity/continuity of the State. According to an ILA preliminary Report on the Succession of States to Treaties, ‘minor’ changes15 do not affect the continuity of a State – which by implication means that ‘significant’ changes can affect it. For instance, the fact that the Socialist Federal Republic of Yugoslavia (SFRY) lost a “greater part of [its] territory and population” was a factor taken into account by the EC Arbitration Commission (Badinter Commission) in order to conclude that it became extinct as a State.16 However there is no specific algorithm to quantify changes and indeed many doubt that significant changes to the population or to the territory can affect the continuity of a State.17 As Crawford says, “a State is not necessarily extinguished by substantial changes in territory, population, or government, or even, in some cases, by a combination of all three.”18 For example, the independence of Bangladesh from Pakistan resulted in the loss of 56 % of Pakistan’s pre-independence population,19 but no-one claimed that Pakistan ceased to exist as a State or that it did not continue the legal personality of the pre-independence State. Compared to the above, the territo14 Crawford/Boyle (note 2), 82, paras. 65–68; Matthew Happold, Independence: in or out of Europe? An Independent Scotland and the European Union, International and Comparative Law Quarterly (ICLQ) 49 (2000), 15, 16–20. 15 Brigitte Stern, Rapport préliminaire sur la succession d’États en matière des traités, in: ILA, Report of the Sixty-Seventh Conference held at Helsinki (1996), 655, 658; ILA (note 11), 63–69; Krystyna Marek, Identity and Continuity of States in Public International Law (1968), 15–190; James Crawford, Creation of States in International Law (2nd ed. 2006), 404 et seq. 16 Arbitration Commission of the International Conference on the Former Yugoslavia, Opinions No. 8, 9, and 10, reprinted in: International Legal Materials (ILM) 31 (1992), 1518 et seq. (Badinter Commission). 17

Crawford (note 15), 404.

18

Ibid., 417.

19

Alexis Heraclides, The Self-Determination of Minorities in International Politics (1991), 149.

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rial and demographic impact of Scotland’s independence will be on a smaller scale: roughly 8.5 % of the population and 30 % of the territory of the UK. This indicates that the presumption of identity/continuity of the pre-secession State is not always a matter of law and often relies on political affirmation. In the first place, the parties concerned may settle the issue through negotiations and agreement.20 For example, following the dissolution of the Union of Soviet Socialist Republics (USSR), Russia declared that it was a continuation of the personality of the USSR and of its membership of the UN; a claim that was accepted by the States of the defunct USSR that formed the Commonwealth of Independent States.21 This case can be contrasted with that of the Federal Republic of Yugoslavia (FRY), whose claim that it is a continuation of the legal personality of the predecessor State, the Socialist Federal Republic of Yugoslavia (SFRY), was not accepted by the other republics that emerged from the SFRY’s dissolution. Although such unilateral declarations or agreements do not bind third parties, their political weight cannot be ignored. On a second level, States or international organisations can make their own judgment as to which State is continuing the personality of the predecessor State. Any agreement between the States concerned will definitely be taken into account, but in the absence of such agreement, their decision will be influenced by other factors. For example, which State retains most of the territory and population of the predecessor State; which State has most of the economic or military resources; in which State the seat of the government and governmental departments remain; or which State exercises command over the military, are all factors that will be taken into account. Similar factors were invoked by the FRY in support of its claim that it continued the legal personality of the former SFRY. More specifically, the FRY (Serbia and Montenegro) made reference to the fact that it constituted the nucleus of the predecessor State and that it retained a major portion of its territory, population and organisation.22 The FRY’s claim was not, however, accepted by international institu-

20

Badinter Commission (note 16), 1523 (Opinion 9).

Decision by the Council of Heads of States of the Commonwealth of Independent States, Alma Ata, 21 December 1991, reprinted in: ILM 31 (1992), 151. 21

22 Mark Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, American Journal of International Law (AJIL) 86 (1992), 569, 595; Yehuda Blum, United Nations Membership of the ‘New’ Yugoslavia: Continuity or Break?, AJIL 86 (1992), 830, 832.

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tions such as the EU23 or the UN,24 not only because the other republics of the former SFRY had rejected such a claim but also because in their judgment the FRY did not fulfil the aforementioned factors. At the time of writing, neither the UK nor the Scottish Government has made their respective views on this issue known, but settling the matter through agreement is an option that should be explored. In the absence of agreement, the question is whether a claim of continuity will be accepted by the international community. The view taken here is that the UK has a very strong case if the factors mentioned above are added together. Another factor that would definitely be of relevance is the UK’s permanent seat on the Security Council (SC). It is not only the contribution – past and future – of the UK to all spheres of the work of the United Nations that will be taken into consideration, but also the fact that questioning the position of the UK in the SC would throw the UN into a serious constitutional crisis which it would prefer to avoid. It should be recalled here that other permanent members such as Russia and China succeeded other States in membership of the SC without much argument. On the basis of the preceding discussion, it is submitted that the legal personality of the UK would continue in the form of the remaining UK, whereas Scotland would be a new State in international law. How this would affect Scotland’s membership of IOs, such as the UN and the EU, will be discussed in the sections that follow.

III. Membership of the United Nations The question of UN membership in cases of State disaggregation was considered very early in the life of the organisation following the partition of India. ‘British India’ was one of the original members of the United Nations although it only formally acceded to independence in 1947.25 Upon independence, British India was divided into two States: India and Pakistan. The question was whether the partition gave rise 23

Badinter Commission (note 16), 1524 (Opinion 9, para. 4).

SC Res. 757 of 30 May 1992; SC Res. 777 of 19 September 1992; SC Res. 821 of 28 April 1993; GA Res. 47/1 of 22 September 1992. 24

25 Robert Jennings/Arthur Watts, Oppenheim’s International Law, vol. 1, Peace, (9th. ed. 2008), 259: “[…] so long as the control of India’s internal and external relations rested ultimately with the British Government and parliament, it could not be regarded as a sovereign state and as a normal subject of international law”.

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to a situation where there was a continuing State, retaining its membership of the UN, and a new State which was required to apply for membership, or whether two new States came into being, creating the need for both to apply. Pakistan was quite unsure about its legal position. On the one hand it claimed that “India and Pakistan should become Members of the United Nations, automatically” whereas, on the other, it formally applied for admission.26 When the matter was discussed in the General Assembly (GA), Argentina argued that either both India and Pakistan should be regarded as original members or that they should both be regarded as new members needing to apply afresh for membership.27 The UN position as expressed by the Assistant Secretary-General for Legal Affairs was the following: From the legal standpoint, the Indian Independence Act may be analysed as effecting two separate and distinct changes; […] From the viewpoint of international law, the situation is one in which a part of an existing State breaks off and becomes a new State. On this analysis, there is no change in the international status of India; it continues as a State with all the treaty rights and obligations, and consequently, with all the rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new State; it will not have the treaty rights and obligations of the old State, and it will not, of course, have membership in the United Nations. In international law, the situation is analogous to the separation of the Irish Free State from Great Britain, and of Belgium from the Netherlands. In these cases, the portion which separated was considered a new State; the remaining portion continued as an existing State with all the rights and duties which it had before.[…] In conclusion, the effect of the Independence Act may be summarized as follows: 1. The new Dominion of India continues as an original Member State of the United Nations with all rights and obligations of membership. 2. Pakistan will be a new non-member State. In order for it to become a Member of the United Nations, it would have to apply for admission pursuant to Article 4 of the Charter, and its application would be handled under the pertinent rules of procedure of the General Assembly and the Security Council.28

ILC, Succession of States and Governments, The Succession of States in Relation to Membership in the United Nations: Memorandum prepared by the Secretariat, 3 December 1962, UN Doc. A/CN.4/149 and Add.l (1962), in: Yearbook of the International Law Commission (YBILC) 1962 (vol. II), 101, 102. 26

27

Ibid., 102 et seq.

28

Ibid., 101 et seq.

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In line with this opinion, India continued its membership of the UN, whereas Pakistan was admitted as a new State. The issue was then referred to the Sixth Committee of the GA, which was invited to formulate the legal position on the matter. The question put to the Committee was: “[w]hat are the legal rules to which, in the future, a State or States entering into international life through the division of a Member State of the United Nations should be subject?” In response, the Committee opined: 1. That, as a general rule, it is in conformity with legal principles to presume that a State which is a Member of the Organization of the United Nations does not cease to be a Member simply because its Constitution or its frontier have been subjected to changes, and that the extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist. 2. That when a new State is created, whatever may be the territory and the populations which it comprises and whether or not they formed part of a State Member of the United Nations, it cannot under the system of the Charter claim the status of a Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter. 3. Beyond that, each case must be judged according to its merits.29

Subsequent UN practice confirms this view – namely that there is a presumption of continuity of existing members, that new States are not entitled to automatic membership, and that the UN will make decisions on a case-by-case basis. To give some examples, when Bangladesh seceded from Pakistan in 1971 it applied afresh for membership of the UN, whereas Pakistan continued its membership. Likewise, following the dissolution of the Soviet Union, all new States that emerged from the USSR and were not already UN members applied for membership, whereas existing members continued the status quo. The latter included Russia, Belarus and Ukraine, which were original members of the UN. A more recent example is that of Montenegro. When, following a referendum, Montenegro left the union with Serbia and declared its independence in 2006, in a letter to the UN Secretary-General the President of Serbia confirmed that the Republic of Serbia would continue the membership of Serbia and Montenegro in the United Nations.30 This was in line with the 29

Ibid., 103.

UN, Multilateral Treaties Deposited with the Secretary-General, Status as at 1 April 2009, vol. 1 (2009), UN Doc. ST/LEG/SER.E/26, XLVIII, available at: http://treaties.un.org/doc/source/publications/ MTDSG/2009/English-I.pdf (accessed on 6 February 2013). See also ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, 43, para. 67. 30

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Constitution of the Union of Serbia and Montenegro which explicitly stated that a seceding State would not inherit the legal personality of the Union.31 Serbia’s claim was accepted by the UN, whilst Montenegro applied for membership and was admitted in the same year.32 Even more recently, when South Sudan seceded from Sudan in July 2011 following a referendum, it applied for UN membership33 and was admitted immediately, whereas the remaining Sudan was treated as the continuing State.34 The implications of the aforementioned practice in the instant case is that the remaining UK, being the continuing State, would continue its membership of the United Nations, whereas Scotland, as a new State, would need to apply anew for membership. In that case, Scotland would be admitted to the UN if, in the opinion of the organisation, it could satisfy a number of conditions. These conditions are laid down in Article 4 of the UN Charter. According to this article, the candidate must be a State; be peace-loving; accept the obligations of the Charter; be able to carry out its Charter obligations; and be willing to do so. With regard to the first condition, no definition is provided in the Charter, thus one may have to revert to the general international law criteria on statehood. These criteria include a defined territory; population; an effective government; and the ability to enter into relations with other States, with the last two criteria being almost overlapping.35 These criteria are essentially factual; international law does not impose any qualitative conditions on statehood and proposals to the effect that admission should also be dependent on whether a State is democratic have been rejected.36 Yet UN practice demonstrates that the criteria have sometimes been overlooked, as in the Case of India which became an original member before attaining full independence; 31 Art. 60 of the Constitutional Charter of the State Union of Serbia and Montenegro, 4 February 2003, available at: http://www.unhcr.org/refworld/docid/43e7547d4.html (accessed on 16 October 2012). 32

GA Res. 60/264 of 28 June 2006.

Application of the Republic of South Sudan for admission to membership in the United Nations, 9 July 2011, UN Doc. A/65/900-S/2011/418 (2011). 33

GA Res. 65/308 of 25 August 2011 and SC Res. 1999 of 31 July 2011, 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). 34

35 Art. 1 of the Montevideo Convention on the Rights and Duties of States, 26 December 1933, INTS 165, 19; Arbitration Commission of the International Conference on the Former Yugoslavia, Opinion No. 1, reprinted in: (ILM) 31 (1992), 1494 et seq. (Badinter Commission). 36 Ruth B. Russell, A History of the United Nations Charter: The Role of the United States 1940–1945 (1958), 844.

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or in the Case of Byelorussia and Ukraine, which became original members despite the fact that they were not States in the sense of international law. Although these examples involve original members, the juridical criteria of statehood have been overlooked also in circumstances falling under Article 4 of the UN Charter. For example, when Croatia and Bosnia and Herzegovina were admitted to the UN, they did not satisfy all the criteria of statehood, or at least the full gamut of these criteria. It can thus be said that the word ‘State’ does not carry the same legal meaning for purposes of admission,37 but an entity is presumably a State for the purposes of Article 4 if it is admitted to the UN. By implication, admission to the UN can consolidate claims to statehood.38 This would have been, for example, the effect of Palestine’s admission to the UN,39 in view of the disputed status of its statehood. The second condition is that the candidate State should be a peace-loving State. Again there is no definition of what is a peace-loving State; and in the history of the UN, States that have been denied membership because they were deemed not to be peaceful, were later accepted even if their behaviour did not change radically.40 In general a peace-loving State is one that adheres to the UN purposes, in particular those relating to the non-use of force and the pacific settlement of disputes. Thus, the reasons for which Albania was refused membership of the UN was the adverse finding of the International Court of Justice (ICJ) in the Corfu Channel Case involving Albania and the UK,41 and Albania’s refusal to comply with the decision or to cooperate with the UN to bring a peaceful end to the dispute.42 In the Case of Israel, it was

Contra, see Benedetto Conforti/Carlo Focarelli (eds.), The Law and Practice of the United Nations, (4th ed. 2010), 31–33. 37

38 Opinion 8 of the Badinter Commission ‘bears witness to these States’ conviction that the political entity so recognised is a reality and confers on it certain rights and obligations under international law, see Badinter Commission (note 16), 1521 et seq.

Application of Palestine for admission to membership in the United Nations, 23 September 2011, UN Doc. A/66/371-S/2011/592 (2011). 39

40 See, e.g., GA Res. 32 (I) of 9 February 1946, Relations of members of the United Nations to Spain, with regard to Spain, which became a member in 1955. 41 ICJ, Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4.

ILC, First Report on Succession of States in Respect of Treaties, by Sir Francis Vallat. Special Rapporteur, 19 and 22 April, 24 and 31 May, 10 and 21 June 1974, UN Doc. A/CN.4/278 and Add. 1–6, in: YBILC 1974 (vol. II, part 1), 1, 14, para. 50. 42

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admitted to the UN after signing armistice agreements with Egypt, Jordan and Lebanon.43 Finally, a candidate State should accept the Charter obligations, and be able and willing to carry out those obligations. The first condition, which also reveals the unilateral character of the UN obligations, is met by making a formal declaration to that effect.44 The second condition – whether the candidate country is able and willing to carry out its obligations – refers to the juridical and political capacity of the new State to do so, and to its good faith.45 Admission is effectuated by a decision of the GA adopted by a two-thirds majority of present and voting members46 on a recommendation by the SC. The involvement of the GA and the SC in the admission process has been discussed by the ICJ in an Advisory Opinion.47 The question put to the Court was whether the GA can proceed with a decision to admit a new State notwithstanding the absence of a SC recommendation, either because a permanent member has cast its veto, or because it was not possible to attain the necessary majority of votes. This question arose because a recommendation, which is what the SC is required to proffer, produces different legal effects from a decision, the legal effects of which are binding. The ICJ in its Opinion emphasised that the institutional balance had to be maintained. According to the Court, both the SC and the GA should be involved in the admission process if “the role of the Security Council in the exercise of one of the essential functions of the Organization” is not to be nullified.48 It thus follows that a favourable recommendation by the SC is a requirement for admission49 and the SC’s recommendation is 43

GA Res. 273 (III) of 11 May 1949, Admission to Israel to membership in the United Nations.

See Art. 134 of the Rules of Procedure of the General Assembly and Art. 58 of the Provisional Rules of Procedure of the Security Council. 44

45 See GA Res. 506 A (VI) of 1 February 1952, Recital 2 Preamble: “[c]onsidering that the judgment of the Organization that they are willing and able to carry out these obligations and are otherwise qualified for membership ought to be based on facts such as: the maintenance of friendly relations with other States, the fulfilment of international obligations and the record of a State’s willingness and present disposition to submit international claims or controversies to pacific means of settlement established by international law […].” See also ibid., para. 2. 46

Art. 18 (2) of the Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

ICJ, Competence of the General Assembly for Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, ICJ Reports 1950, 4. 47

48

Ibid., 4.

49

Ibid., 9.

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subject to the veto of permanent members, according to Article 27 (3) of the UN Charter. Be that as it may, the question one may ask is whether a State can make its vote dependent on conditions other than those specifically mentioned in Article 4. This issue was considered by the ICJ in the Conditions of Admission of a State to Membership in the United Nations Advisory Opinion. The question put to the Court was whether a Member State is “juridically entitled to make its consent to the admission [of another State] dependent on conditions not expressly provided by paragraph 1 of Article 4 of the UN Charter.”50 The Court felt competent to pronounce on the question put to it because, first, the question concerned the conditions that inform a State’s vote and not the motives behind that vote, which are inscrutable;51 and secondly, the question involved interpretation of provisions of a treaty, namely the UN Charter.52 Having established its competence, the Court went on to opine that the criteria in Article 4 “constitute an exhaustive enumeration and are not merely stated by way of guidance or example.”53 According to the Court, if political considerations were to be superimposed on the conditions enumerated in Article 4, States would have infinite powers, something that would be inconsistent with the Charter.54 As the Court said, “the political character of an organ cannot release it from the observance of treaty provisions established by the Charter, when they constitute limitations on its powers or criteria for its judgment.”55 However, the Court conceded that “no relevant political factor […] is excluded”56 in the appreciation of whether the posited conditions have been satisfied by the applicant State and the appreciation of these criteria falls onto the shoulders of political organs and “in the last analysis that of its

50 Id., 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, 58. 51

Ibid., 60.

Contra, see ICJ, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, Dissenting Opinions of Judge Zoričić and Judge Krylov, ICJ Reports 1948, 57, 94–106 and 107–109 respectively. 52

53

Id., Conditions of Admission (note 50), 62.

54

Ibid., 62 et seq.

55

Ibid., 64.

Ibid., 63. See also Report of the Rapporteur of Committee I/2 on Chapter III (Membership), Doc. 1178 I/2/76(2), 24 June 1945, UNCIO Documents, vol. VII, 324, 326. 56

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members.”57 The dissenting judges were of the view that the conditions in Article 4 of the UN Charter are not exhaustive but States that pronounce with their vote on the admission of another State participate in a political decision and therefore can make their vote dependent on any political considerations they deem relevant. In the opinion of the dissenting Judges the outer limit of discretion is the purposes of the UN.58 Although both the majority and dissenting opinions recognised the role of politics in admission procedures,59 for the majority the limits of political appreciation “are fixed by Article 4,”60 whereas for the dissenting judges the limits were set against the UN purposes whose open-ended character allows for more discretion. Yet, even within Article 4, the distinction between interpretation of existing conditions and introduction of new conditions is very fine and cannot be easily maintained, in view of the fact that the admission conditions in Article 4 are phrased in open terms.61 For example, is the existence or not of diplomatic relations between the candidate country and other States an additional criterion, or evidence of whether the peace-loving criterion is fulfilled? Or is the US opposition to Palestine’s bid to be admitted to the UN,62 because in their view it constitutes a unilateral action that obstructs the peace process, a new condition or interpretation of the ‘peace-loving’ condition? All of the above indicate that decisions on admission are political and that legal considerations are often subservient to the political exigencies of States or of the UN.63 That does not however mean that the politics of admission, with the exception of the early days and of highly charged cases such as Kosovo or Palestine, have acted 57

ICJ, Conditions of Admission (note 50), 62.

See id., Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, Dissenting Opinions of Judges Basdevant, Winiarski, Sir Arnold McNair, and Read, ICJ Reports 1948, 57, 82, para. 18. 58

59 Martti Koskenniemi, From Apology to Utopia, The Structure of International Legal Argument (2005), 371–379. 60

ICJ, Conditions of Admission (note 50), 64.

61

Id., Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion of 28 May 1948, Individual Opinion of Judge Azevedo, 57, 77 et seq. 62

See supra, note 39.

This is corroborated by certain practices, for example the ‘package deal’, whereby States were admitted to the UN in groups or when SC members voted against a particular State because another State was not admitted. See Stephen Jacobs/Marc Poirier, The Right to Veto United Nations Membership Applications: The United States Veto of the Viet-Nams, Harvard International Law Journal 17 (1976), 581–607. 63

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as an obstacle to the admission of new States; instead politics facilitated the admission to the UN of States that may not have otherwise satisfied the admission criteria, and on the whole facilitated the UN to attain global membership which is critical in fulfilling its global mandate of maintaining peace and security. In view of the above, an independent Scotland would be eligible for membership of the UN. In the first place, it would have all the hallmarks of a State notwithstanding any boundary disputes with the rest of the UK that may exist. Indeed, there are many examples of States being admitted to the UN when their boundaries were at the time disputed, as for example in the cases of Israel, Croatia or Bosnia and Herzegovina.64 Second, there is no doubt that Scotland is ‘peace-loving’, particularly if it vows to settle any dispute with the UK or with any other State through pacific means. Third, as a fully functioning State, Scotland would be able to carry out its UN obligations. It is also highly unlikely that the UK would exercise its right of veto since the independence of Scotland would be brought about with its consent; there is also no doubt that the GA would also vote in favour of Scotland’s membership. In conclusion, Scotland’s membership of the UN would not encounter any insurmountable problem.

IV. Membership of the EU Concerning Scotland’s membership of the EU, the EU constitutive treaties contain no rules on State secession; the only rules that exist concern accession to, or withdrawal from, the EU.65 Relevant practice is also limited. The incidents that perhaps need mentioning are those of Algeria, Greenland and the German Democratic Republic (GDR) but they do raise different kind of issues. Algeria became a member of the European Economic Community (EEC) because when the EEC was established by six European countries including France, it was an integral part of France. After gaining independence in 1962, Algeria seceded from the EEC, whilst France continued its membership. However, under a tacit agreement, EEC law continued to apply to Algeria although Algeria was not regarded as an EEC member. ICJ, North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. The Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 46; ICJ, Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment of 3 February 1994, ICJ Reports 1994, 6, 22 and 26. 64

65

Arts. 49–50 of the Treaty on European Union, 30 March 2010, OJ 2010 C 83, 13 (TEU).

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This situation lasted until formal relations between Algeria and the EEC were established. As for Greenland, it became part of Denmark in 1953 and thus joined the EEC by virtue of Denmark’s accession to the EEC in 1973. When Greenland was granted home rule, it held a referendum on its membership of the EEC which returned a negative result. In light of this, Denmark negotiated Greenland’s withdrawal from the EEC and its granting of Overseas Countries and Territories status, whilst Denmark continued its membership unaffected.66 Those examples are not very instructive as far as the status of Scotland is concerned, because the former involves the independence of a colony whereas the latter concerns the legal status of a non-independent entity. The integration of the GDR into the then EEC following the reunification of Germany is also irrelevant, because it was a case of integration of a territory into an existing Member State.67 Moreover, it was treated as a special case. According to the Commission: German unification […] does not amount to accession in formal terms. […] one of the first major differences by comparison with a ‘normal’ accession is that the initial state of the GDR’s integration into the Community would take place within the framework of the German unification process, in other words ahead of formal integration into the Community. A second difference was in the special nature of the case and the absence of the usual negotiations on the conditions of accession.68

‘Accession’ of the GDR to the EEC was automatic, since it was integrated into the Federal Republic of Germany and did not involve revision of the treaties as far as the EEC was concerned, or a pre-accession process as far as the GDR was concerned, although transitional measures applied thereafter. The special character of the case is also supported by the fact that one of Germany’s stated purposes, which was also enshrined in its constitution, was to achieve the unity of Germany, a purpose invoked when it became an EEC member. The political circumstances that prevailed following the collapse of the Soviet bloc also played an important role, with EEC States Frederik Harhoff, Greenland’s Withdrawal from the European Communities, Common Market Law Review (CMLR) 20 (1983), 13. 66

67 Christiaan Timmermans, German Unification and Community Law, CMLR 27 (1990), 437; Thomas Giegerich, The European Dimension of German Reunification: East Germany’s Integration into the European Communities, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 51 (1991), 584; Kay Hailbronner, Legal Aspects of the Unification of the Two German States, European Journal of International Law 2 (1991), 18. 68 EC, Communication, The Community and German Unification, Bulletin of the European Communities, Supplement 4/1990, 9.

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minded to bring to the European fold Eastern European States and to keep a unified Germany under a European roof. From the practice referred to above, it cannot be said that a customary rule exists within the EU on secession or that the treaties have been modified. With EU practice being of limited assistance and in the absence of specific provisions in the EU treaties, one may ask whether the EU will take its cue from international law. This immediately raises the question of the place and role of international law within the EU. The EU has declared its commitment to international law,69 has declared that the EU should “respect international law in the exercise of its powers”;70 and, as far as customary international law is concerned, the European Court of Justice (ECJ) has held that it is “binding on Community institutions […] and [forms] part of the Community legal order.”71 That said, the EU seems to treat customary and international treaty law, or international law in general, differently. In the recent Kadi decision, the ECJ appears to have abandoned its previous jurisprudence, according to which international agreements form part of the EU order,72 and has instead projected the EU as an autonomous legal order whose relationship with international law or with international agreements – such as the UN Charter in that case – is determined by the EU. The ECJ opined that “an international agreement cannot affect the allocation of powers fixed by the Treaties or […] the autonomy of the Community legal order”;73 that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”;74 and that the EU’s “autonomous legal system […] is not to be prejudiced by an international agreement.”75 It finally held that obligations arising from the UN Charter, which for the Court is an international treaty, are placed below the EU

69

Art. 3 (5) of the TEU.

ECJ, Case C-286/90, Poulsen and Diva Navigation, 1992 ECR I-6069; id., Joined Cases C-402/ 05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the EU and Commission of the EC, 2008 ECR I-6351, para. 291. 70

71

Id., Case C-162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz, 1998 ECR I-3688, para. 46.

72

Id., Case 181/73, Haegeman v. Belgium, 1974 ECR 449.

73

Id., Kadi (note 70), para. 282.

74

Ibid., para. 285.

75

Ibid., para. 316.

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treaties and the EU general principles of law.76 In contrast, the ECJ has recognised the binding and direct legal effects of customary international law within the EU.77 In the Opel judgment for example, the Court of First Instance (CFI) opined that the 1969 Vienna Convention on the Law of Treaties, although it does not bind the Community as such, contains customary rules which do bind the Community.78 The acceptance by, and integration of, customary international law into the EU legal order can have implications on the question of membership. First, to the extent that the rule according to which membership of IOs by seceding States is not automatic is customary law,79 it binds the Union as an international person80 and, following the ECJ’s jurisprudence, applies within the EU. This is true unless a different rule or custom has come into existence within the EU, which as was shown is not the case. Secondly, to the extent that the rule according to which “a treaty is binding upon each party in respect of its entire territory”81 is customary law, it equally binds the EU. Its application within the EU means that the EU treaties apply to the EU Member States as listed in Article 52 of the Treaty on European Union (TEU)82 and over their territories. In the case at hand, they apply to the UK as a legal person, having signed the EU treaties; and they apply over the whole UK territory. What constitutes a State’s territory is a matter determined by the State itself and not by the EU, but any acquisition or loss of territory will affect the scope of application of EU treaties.83 If 76

Ibid., paras. 305–308.

77

Id., Racke (note 71), para. 48.

78

CFI, Case T-115/94, Opel Austria GmbH v. Council, 1997 ECR II-39, para. 77.

As the ILC commented on Art. 4 of the 1978 Vienna Convention on Succession of States in respect of Treaties, “practice appears now to have established the principle that a new State is not entitled automatically to become a party to the constituent treaty and a member of the organization as a successor State, simply by reason of the fact that at the date of the succession its territory was subject to the treaty and within the ambit of the organization,” see ILC, Draft Articles on Succession of States in respect of Treaties, with commentaries, in: YBILC 1974 (vol. II, part 1), 177, 177–178. See also ILA (note 11), 34–46. 79

80 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, 73, 89, para. 37.

Art. 29 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 21 March 1986, ILM 25, 543. 81

82

See also Art. 1 of the TEU.

For example see EC/EU, Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, Protocol 83

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Scotland secedes, the treaties will cease to apply to the territory of Scotland, but will continue to apply to the rest of the UK territories, and to the UK as the legal person that signed them. Thus, upon independence, Scotland will find itself outside the EU and if it wishes to become member, it will be required to apply anew. This seems also to be the view of the EU Commission. According to comments attributed to the Commission, there is a process of secession under international law and a process of accession under the EU treaties.84 Also, according to José Manuel Barroso, the President of the Commission, “[a] State has to apply to become a member of the European Union and all the other member States have to give their consent.”85 The EU membership conditions are set out in Article 49 of the TEU. First of all, the candidate needs to be a State, and indeed a European State that respects and promotes the values referred to in Article 2 of the TEU. These include the values of democracy, human rights and the rule of law. In addition to the above, the Council has laid down a number of more specific political, economic, and legal criteria.86 According to these criteria, the candidate State should have stable institutions guaranteeing democracy, human rights and the rule of law; have a functioning market economy; be able to cope with the market forces within the Union; and be able to take on the obligations of membership and implement the EU acquis. Before formal accession is achieved, the EU institutions and the candidate State engage in negotiations and the preparedness of the State to become a full member of the EU is scrutinised and assessed by EU institutions. It should be noted at this juncture that the accession criteria do not apply uniformly to all candidate States but the conditions are No. 10 on Cyprus of 23 September 2003, OJ 2003, L 236, 955: Arts. 1 and 4, which suspends the application of the EU acquis to northern Cyprus leaving the door open to reconsideration if a settlement is found. 84

Johnson (note 3).

Carrell (note 4). According to the Spanish Foreign Minister García-Margallo “[i]n the hypothetical case of independence, Scotland would have to join the queue and ask to be admitted, needing the unanimous approval of all member states to obtain the status of a candidate country […] and to sign the final treaty [of accession],” see Giles Tremlett/Severin Carrell, The Guardian, 24 October 2012, ‘Join the queue’ for EU membership, Spain tells Alex Salmond, available at: http://www.guardian.co.uk/politics/ 2012/oct/24/scotland-eu-membership-spain (accessed on 6 February 2013). 85

86 European Council, Presidency Conclusions, Copenhagen, 21–22 June 1993, DOC/93/3, Bulletin of the European Communities 12/1994, point I.54, available at: http://europa.eu/rapid/pressrelease_DOC-93-3_en.htm (accessed on 12 March 2013); id., Presidency Conclusions, Essen, 9–10 December 1994, Bulletin of the European Communities 6/1993, point I.13; id., Presidency Conclusions, Madrid, 15–16 December 1995, Part A, III.A, para. 6.

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adapted to respond to the needs of the specific candidate State even if the core criteria remain the same. Thus conditions that may be imposed on some States may not be imposed on others. There is also nothing to preclude Member States inserting additional conditions to address specific concerns they may have. Finally, the impact of any new accession on the EU and more specifically its impact on the EU’s capacity to maintain the process of integration in relation to institutions, budget and common policies are also taken into account.87 Accession is effected by a unanimous decision of the Council, a decision of the European Parliament taken by majority, and the ratification of the Accession Treaty by national Parliaments according to their respective constitutional requirements. This means that admission is subject to three veto-yielding processes. To the above, the possibility of calling a referendum to decide on the admission of a new State should be added.88 It thus transpires that whereas admission of new States to the EU is institutionally driven, States maintain considerable powers in the process. As has been observed, there has been ‘nationalisation of enlargement’.89 As far as Scotland is concerned, it can be safely said that, in principle, it will satisfy the legal, political and economic criteria, in view also of the fact that EU law already applies to Scotland. Concerning the impact of Scottish membership on the EU, it will not be negative due to Scotland’s size and relative development. However, admission may be stalled in any of the three decision-making stages. In the Council, States facing separatist movements may not be sympathetic to Scottish membership because of the precedent that it will establish. For the same reason, national Parliaments may be equally unsympathetic. Even if the Scottish candidature is not opposed, at least during the negotiations, EU Member States that would likely be affected by Scotland’s membership will try to protect their interests and negotiate from a position of relative strength, whereas Scotland will have less influence. As a result, the terms of Scotland’s membership may be less favourable.

87 EC, Communication, Enlargement Strategy and Main Challenges 2006–2007 of 8 November 2006, COM(2006)649 final, available at: http://ec.europa.eu/enlargement/pdf/key_documents/2006/Nov/ com_649_strategy_paper_en.pdf (accessed on 6 February 2013). 88 Art. 88-85 of the Constitution of France of 4 October 1958, available at: http://www.assembleenationale.fr/english/8ab.asp (accessed on 17 October 2012). 89 Christophe Hillion, EU Enlargement, in: Paul Craig/Gráinne de Búrca (eds.), The Evolution of EU Law (2nd ed. 2011), 187.

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If Scotland is to apply anew for membership, the timing of the application is critical because loss of membership would have serious consequences for Scotland and its people. It has been mooted that negotiations could start after the referendum and before the declaration of independence. The problem with this view is that it ignores the fact that Scotland would not satisfy one of the eligibility criteria during that period; that of being a State. In the period between the referendum and the formal declaration of independence Scotland will be part of the UK and any negotiations need to be conducted by the UK Government on behalf of Scotland, as happened in the case of Greenland, where Denmark negotiated the island’s secession from the EU because Greenland was part of Denmark. Whether the UK Government would conduct the negotiations, authorise the Scottish Government to do so, or negotiate jointly, is something to be decided at a later stage. The Edinburgh Agreement commits the two governments “to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom,”90 but this does not commit them to anything specific, not to mention the lingering doubts as to the legal force of the agreement.91 However, for the EU to start negotiations with Scotland without the consent of the UK Government would be an unacceptable interference in the UK’s domestic affairs. As it has been reported, Commission officials rejected the Scottish Government’s call for urgent talks with the EU by saying that the Commission is “acutely sensitive to and fully respects the domestic nature of this [independence] debate.”92 Granted, the Scottish Government’s call for negotiations preceded the referendum and the Commission’s views may change after the referendum if Scotland becomes a ‘State in waiting’ but, still, the EU needs to be careful to not give the impression that it is interfering in the UK’s domestic affairs. If the UK Government were to not give its consent, the EU should delay the process until independence is declared. If no decision on membership is reached before the declaration of independence, it is 90 Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland (note 1), para. 30. 91 Christine Bell, The Legal Status of the ‘Edinburgh Agreement’, available at: http://www.scottishconsti tutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/ 431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx (accessed on 28 February 2012). 92 Simon Johnson, The Telegraph, 27 January 2013, European Leaders refuse to discuss independent Scotland’s EU membership with Alex Salmond, available at: http://www.telegraph.co.uk/news/ worldnews/europe/eu/9821431/European-leaders-refuse-to-discuss-independent-Scotlands-EUmembership-with-Alex-Salmond.html (accessed on 27 January 2013).

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imperative that transitional arrangements are in place until a final decision is made, and these arrangements need to be decided well in advance. Yet, the situation may be complicated even further following the announcement of the British Government of its intention to hold a referendum on the UK’s membership of the EU.93 Be that as it may, Scotland’s membership of the EU may also be seen from a different perspective. It may be contended that the EU can digress from the process described above because it is a sui generis polity. The ECJ, in van Gend en Loos, has quite proudly distinguished the EEC/EU treaties from ‘ordinary international treaties’, and went on to say that the Community “constitutes a new legal order of international law”94 and that it has “created a body of law which binds both their [State] nationals and themselves.”95 The sui generis nature of the EU has become part of the political and legal acquis of the Union and on occasions it has informed the way international law is received in the Union, as the Kadi Case mentioned above demonstrates.96 That being said, since the rules on membership of IOs are customary international law, and the EU is bound by customary international law, one may ask whether there is any derogation from these rules as far as the EU is concerned. In the first place one should look into the EU treaties because as a general rule treaties can derogate from customary law.97 However, as was said above there are no rules on secession in the treaties. Second, one should consider whether there is a local custom supporting automatic membership in cases of secession.98 Yet, as already shown, there is no practice or BBC News, 23 January 2013, David Cameron promises in/out referendum on EU, available at: http://www.bbc.co.uk/news/uk-politics-21148282 (accessed on 30 January 2013). 93

ECJ, Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratis der Belastingen, 1963 ECR 1, 12. 94

95

Id., Case 6/64, Flaminio Costa v. ENEL, 1964 ECR 585.

96

Id., Kadi (note 70).

See Iran-US Claims Tribunal, Amoco International Finance Corporation v. Iran et. al., Partial Award of 14 July 1987, Award No. 310-56-3, 15 Iran-US CTR 189, reprinted in: ILM 27 (1988), 1314, 1343, para. 112: “[a]s a lex specialis in the relations between the two countries, the Treaty supersedes the lex generalis, namely customary international law. This does not mean, however, that the latter is irrelevant. On the contrary, the rules of customary law may be useful in order to fill in possible lacunae of the Treaty, to ascertain the meaning of undefined terms in its text or, more generally, to aid interpretation and application of its provisions”. 97

98 ICJ, Asylum Case (Colombia v. Peru), Judgement of 20 November 1950, ICJ Reports 1950, 266, 276; id., Case Concerning the Right of Passage over Indian Territory (Portugal v. India), Merits, Judgement of 12 April 1960, ICJ Reports 1960, 6, 40–44.

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opinio juris in the EU to support the formation of a local custom. This does not mean that such custom cannot emerge, with Scotland being the proto-generative act of that custom. In the view of the author, this is highly unlikely to happen for a number of reasons. First, the EU is a more exclusive organisation than the UN and applies its membership criteria more vigorously. Secondly, membership of the EU has constitutional, political and legal implications for the EU and for all other EU members, in contrast to membership of the UN which has limited constitutional implications for other States. Thirdly, in an era of State fragmentation, States will not want to establish a precedence whereby secession leads to automatic membership of the EU. In view of the above considerations, it is difficult to envisage a situation where Scotland will be the harbinger of new law. Yet, according to another line of argument, the sui generis character of the EU can support automatic membership by linking State membership of the EU to the concept of EU citizenship.99 As declared by the ECJ, the EU established a legal order which governs the powers, rights and obligations of individuals, not only States,100 and the concept of EU citizenship is central to that order.101 It has therefore been claimed that ceasing membership of the EU would deprive Scottish citizens of their EU citizenship rights.102 Again this line of reasoning is not convincing. First, EU citizenship is a derivative of national citizenship.103 An individual needs to have the nationality/citizenship of a Member State in order to benefit from Union citizenship. As UK citizens, Scottish people are also EU citizens, but if they become Scottish citizens, their link with UK, and consequently with EU, citizenship will break unless dual citizenship is maintained. Secondly, acquisition or loss of citizenship falls within 99

Charter of Fundamental Rights of the European Union, Art. 6 (1) of the TEU.

ECJ, Joined Cases 90/63 and 91/63, Commission of the European Economic Community v Grand Duchy of Luxembourg and Kingdom of Belgium, 1964 ECR 631. 100

Art. 20 of the Treaty of the Functioning of the European Union 30 March 2010, OJ 2010, C 83, 47, (TFEU). 101

See Commons Select Committee on Scottish Affairs of the UK Parliament, The Referendum on Separation for Scotland, Written evidence submitted by Aidan O’Neill QC, available at: http:// www.publications.parliament.uk/pa/cm201012/cmselect/cmscotaf/writev/referendum/rs13.htm (accessed on 17 October 2012). 102

103 Art. 20 of the TFEU. European Parliament, Parliamentary questions, Answer given by Mr. Barroso on behalf of the Commission, 28 August 2012, E-007453/2012, available at: http://www. europarl.europa.eu/sides/getAllAnswers.do?reference=E-2012-007453&language=EN (accessed on 17 October 2012).

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the prerogatives of each Member State and is not a matter that lies within the EU competences.104 Granted, the ECJ held that in the exercise of their powers in the sphere of nationality/citizenship, States must have due regard to European Union law.105 It further opined that “Article 20, Treaty on the Functioning of the European Union (TFEU) precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”106 However those comments refer to a completely different situation than the one at hand. The Case of Scotland is not one where a Member State exercises its discretion to grant or withdraw citizenship, but instead a case where citizens of a Member State, by exercising the citizenship rights granted by that State, decide to transfer their allegiance to another State. In such a situation, EU law is not applicable; not to mention the fact that the question of Scottish independence would be internal to the UK, having no cross-border dimension.107 Also, when the Permanent Court of International Justice said that acquired rights of individuals do not cease by virtue of a change of sovereignty, the comment was made in the context of private rights.108 As O’Connell opined, acquired rights “are corporeal or incorporeal, properly vested in a natural or legal person, and of assessable monetary value.”109 Third, it is quite preposterous to claim that EU citizenship is immutable whereas national citizenship can change. The logical impli104 Declaration No. 2 on Nationality of a Member State, annexed by the Member States to the Final Act of the Treaty on European Union of 29 July 1992, OJ 1992 C 191, 98. The Commission also rejected a proposal according to which, in case of secession, the citizens of the new State would retain EU membership because it is outside the EU competences. European Parliament, Parliamentary questions, Question for written answer to the Commission, Rule 117, Mara Bizzotto (EFD), 25 July 2012, E-007453/2012, available at: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ& reference=E-2012-007453&language=EN (accessed on 17 October 2012). 105

ECJ, Case C-369/90, Micheletti and Others, 1992 ECR I-4239, para. 10.

Id., Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi, 2011 ECR I-1177, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=80236&pageIndex= 0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=100653 (accessed on 6 February 2013); id., Case C-135/08, Janko Rottman v Freistaat Bayern, 2010 ECR I-1449, available at: http://curia. europa.eu/juris/document/document.jsf?text=&docid=75336&pageIndex=0&doclang=EN&mode= lst&dir=&occ=first&part=1&cid=100925 (accessed on 6 February 2013). 106

In cases where the ECJ decided that rights of citizenship apply to ‘wholly internal situations’, the persons involved had the nationality of another EU State, whereas Scottish nationals living in the UK would not have the nationality of another EU State. 107

108 PCIJ, Questions relating to Settlers of German Origin in the territory ceded by Germany to Poland, Advisory Opinion of 10 September 1923, Series B, No. 6, 36. 109

Daniel Patrick O’Connell, The Law of State Succession (1956), 81.

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cation of this line of reasoning is that Member States cannot withdraw from the Union because that would affect the EU citizenship rights of their citizens, and conversely, EU citizens are not able to vote in a referendum to withdraw from the Union. Fourth, EU citizenship is a very thin concept to support a claim of State membership. It is more in the mould of market and social citizenship than of political citizenship based on extensive political and legal rights, and even less on any notion of organic citizenship. Fifth, citizens form one pillar of the EU polity, the other pillar being the Member States. That is why in the admission process it is States as well as EU citizens that are involved, either indirectly through the European Parliament and national Parliaments, or directly through national referenda. If Scotland’s continuous membership of the EU were to be grounded on the citizenship rights of its people, this would show disrespect to the other shareholders of the EU polity. Sixth, even if a case were to be brought before the ECJ on the basis of citizenship rights, it is open to doubt that the Court would have the appetite to determine issues of membership by adjudicating on issues pertaining to citizenship. It is not only that the ECJ does not have any competence on such issues, but also that the reaction of Member States would be extremely serious, since the EU Courts would be undercutting them in one of the most important elements of their sovereignty.

V. Concluding Observations The preceding discussion has established a number of points. First, membership of an international organisation is grounded on legal personality. As was opined, the treaties constituting IOs create “a multiplicity of obligations, all of which are strictly personal in character” and therefore “the contractual relationship of the member to the organization is dependent on the former’s continued personality.”110 Second, and related to the above, in cases of secession the State that continues the legal personality of the pre-secession State continues its membership of IOs. Third, a new State established following a successful secession does not have an automatic right of membership of IOs. Applying the above to the case at hand, if Scotland were to secede from the UK and to establish itself as a new State it would not inherit the membership of the UK in IOs but would be required to apply for membership. This would be the 110

Ibid., 65.

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case notwithstanding the fact that Scotland is very much integrated into the UN or the EU. Although admission to the UN can be quite speedy, whether Scotland’s application to the EU would be fast-tracked or be approached differently is a matter that depends on decisions to be made by the EU and its Member States.

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The UN Security Council and International Law in 2012 CHRISTOPHE EICK(

I. Introduction On 31 December 2012, together with Colombia, India, Portugal and South Africa, Germany retired from the United Nations Security Council having completed its mandate as a non-permanent member for the period 2011–2012.1 Over this two-year period, the Council held 434 formal meetings, of which 397 were public, and 357 informal consultations of the whole.2 The Council adopted 119 resolutions and 51 presidential statements, issuing 152 statements to the press during this time. While many of the Council’s activities, discussions and efforts continued to be centred on conflict situations in sub-Saharan Africa, developments in the Middle East and the Arab World featured prominently on the Council’s agenda. In 2012, the focus of the Council was on the situation in Syria. The Council’s inability to take decisive action to bring about an end to the civil war in Syria has been rightly heavily criticised. This article, the second in a two-part series,3 will again highlight some of the issues dealt with by the Security Council which, from both a German foreign policy and ( Permanent Mission of Germany to the United Nations in New York, Head of Political Department and Security Council Political Coordinator for Germany (2011–2012).

The German Foreign Office (Auswärtiges Amt) has issued a report on Germany’s tenure on the Council, Deutschland im Sicherheitsrat der Vereinten Nationen 2011/2012 (2012), available at: http://www. auswaertiges-amt.de/cae/servlet/contentblob/633942/publicationFile/175261/121219_Bilanz bericht_SR.pdf (accessed on 30 January 2013). 1

2 On the different meeting formats, see Konrad Bühler, Article 28, in: Bruno Simma/DanielErasmus Khan/Georg Nolte/Andreas Paulus (eds.), The Charter of the United Nations, A Commentary (3rd ed. 2012), 845 et seq. 3 See Susanne Wasum-Rainer/Christophe Eick, The UN Security Council and International Law in 2011, German Yearbook of International Law (GYIL) 54 (2011), 609.

538 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

international legal perspective, appear to be most relevant. This includes the following issues in particular: Cooperation of the Security Council with the League of Arab States (LAS); the Council’s relationship with the International Criminal Court (ICC); and Security Council procedure and working methods. Looking back at some of the issues highlighted for 2011, the application of Palestine for admission as a member of the United Nations remains before the Security Council. It remains unlikely that the Council will take any decision on the Palestinian application in the foreseeable future. However, on 29 November 2012, the General Assembly overwhelmingly granted Palestine the status of a non-member Observer State, and expressed its hope that the Security Council would ‘consider favourably’ the application for full membership in the United Nations.4 Following a request by the Palestinian delegation the nameplate ‘Palestine’ has been replaced for all official UN meetings, including for those of the Council in which a Palestinian representative has been invited to participate, and it now reads ‘State of Palestine’.5 In 2012, the issue of ‘fair and clear procedures’ for placing and removing individuals and entities on sanctions lists continued to be a subject of consideration by the Council. In December 2012, the mandate of the Ombudsperson under the Al-Qaida sanctions regime was extended for a period of 30 months.6 While the mandate remained virtually unchanged, practice under the current regime has confirmed that, a ‘recommendation’ by the Ombudsperson to de-list an individual or entity in effect triggers a sunset clause. Furthermore, it seems extremely unlikely that such recommendations would be overruled in the Sanctions Committee (by consensus) or by the Council (by majority decision). In all, twenty individuals and 24 entities have now been de-listed following recommendations by the Ombudsperson.7 Those individuals de-listed include Mr. Yasin Qadi, whose case remains pending before the European 4

GA Res. 67/19 of 29 November 2012, para. 3.

In the Security Council, the new nameplate was used for the first time on 23 January 2013. On that occasion, the Permanent Representative of the United States stated: “In our view, any reference to the State of Palestine in the United Nations, including the use of the term ‘State of Palestine’ on the placard in the Security Council, or the use of the term ‘State of Palestine’ in the invitation to this meeting or in other arrangements for participation in this meeting, do not reflect our acquiescence to the view that Palestine is a State,” see SC, Provisional Verbatim Record of the 6906th Meeting, 23 January 2013, UN Doc. S/PV.6906 (2013), 12. 5

6

SC Res. 2083 (2012) of 17 December 2012.

See Fifth Report of the Office of the Ombudsperson, 31 January 2013, UN Doc. S/2013/71 (2013). 7

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Court of Justice in Luxembourg.8 The Ombudsperson mechanism has thus become a robust system of impartial review for listed individuals and entities.9 In 2012, the proposal to introduce the Ombudsperson process to other sanctions regimes received some support. In a letter addressed to the President of the Security Council, the ‘Group of Like-Minded States on Targeted Sanctions’, which includes Germany, advocated that “the important procedural safeguards of the Ombudsperson process should be gradually extended to other appropriate sanctions regimes, in particular those with broad criteria for listing.”10 The Permanent Representative of Germany made the same point in his briefing to the Council as outgoing Chairman of the Al-Qaida and Taliban sanctions regimes.11 Council members Colombia, Guatemala, Pakistan and Portugal, none of which are members of the ‘Group of Friends’, also spoke in favour of establishing an Ombudsperson mandate for sanctions regimes other than the Al-Qaida regime.12

II. Cooperation with the League of Arab States On 26 September 2012, under the German Presidency, the Security Council held a public meeting at ministerial level with a particular focus on the institutional relationship between the Council and the LAS.13 This meeting, attended by the UN Secretary-General and the Secretary-General of the LAS, marked the high-point of a period of unprecedented interaction and cooperation between the UN, in particular the Security Council, and the LAS in addressing the crises in Libya and in Syria. 8

SC, Press Release of 5 October 2012, SC/10785.

See SC, Thirteenth Report of the Analytical Support and Sanctions Monitoring Team, 31 December 2012, UN Doc. S/2012/968 (2012), para. 10. According to the Monitoring Team, in practice, decisions of the Ombudsperson “are just as binding as those of a national or regional judicial body,” see ibid., para. 16. 9

10

Letter of 7 November 2012, UN Doc. S/2012/805 (2012).

SC, Provisional Verbatim Record of the 6881th Meeting, 7 December 2012, UN Doc. S/PV.6881 (2012), 4. 11

12 Id., Provisional Verbatim Record of the 6862th Meeting, 14 November 2012, UN Doc. S/6862 (2012), 14 (Colombia), 19 (Guatemala), 22 (Portugal); id., Provisional Verbatim Record of the 6870th Meeting, 26 November 2012, UN Doc. S/PV.6870 (2012), 12 (Pakistan). 13 Germany had circulated a concept note in preparation of the meeting, see Letter of Germany, 6 September 2012, UN Doc. S/2012/686 (2012).

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In the case of Libya, the LAS’s call for the establishment of a no-fly zone14 was pivotal to the Council’s adoption of Resolution 1973 (2011). In this resolution the Council not only took note of the decision of the LAS to call for the imposition of a no-fly zone and to establish safe areas that would allow for the protection of the Libyan people, but also recognised the important role of the League of Arab States in matters relating to the maintenance of international peace and security in the region, and bearing in mind Chapter VIII of the Charter of the United Nations, requests the Member States of the League of Arab States to cooperate with other Member States in the implementation of paragraph 4.15

Speaking after the adoption of Resolution 1973 (2011), the Permanent Representative of Lebanon reaffirmed “the importance of close cooperation between the United Nations and the League of Arab States pursuant to Chapter VIII.”16 While the Council referred to Chapter VIII in connection with the LAS in Resolution 1973 (2011), the authorisation to use military force for Member States “acting nationally or through regional organizations or arrangements” was made under Chapter VII. Indeed, it was clear that it was not the LAS that would be conducting enforcement operations, but a coalition under the leadership of the North Atlantic Treaty Organization (NATO), which does not consider itself a regional organisation under Chapter VIII.17 NATO did, however, notify the UN on the measures it had taken to enforce the no-fly zone and to protect civilians and civilian populated areas under threat of attack in Libya on a regular basis, not under Article 54 of Chapter VIII, but following the specific requirements contained in Resolution 1973 (2011).18 In the case of Syria, interaction and cooperation between the UN, including the Security Council, and the LAS reached a new level. In contrast to the crisis in Libya, the LAS initially did not request the Council to intervene, but in November 2011 put 14

Letter of the Permanent Observer of the LAS, 14 March 2011, UN Doc. S/2011/137 (2011).

SC Res. 1973 (2011) of 17 March 2011, para. 5. Para. 4 authorised Member States, “acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians and civilian protected areas under threat of attack” in Libya. 15

SC, Provisional Verbatim Record of the 6498th Meeting, 17 March 2011, UN Doc. S/PV.6498 (2011), 4. 16

17

See Christian Walter, Article 52, in: Simma/et al. (note 2), 1458.

See Letters of the Secretary-General to the President of the Security Council, 29 March 2011, UN Doc. S/2011/203 (2011), and 13 April 2011, UN Doc. S/2011/240 (2011), followed by monthly reports on the progress of the NATO-led operation in Libya. 18

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forward an Action Plan, subsequently imposed political and economic sanctions and, in December 2011, deployed an Observer Mission.19 The LAS did not seek authorisation from the Council for these measures. The LAS requested, and was offered, expert support by the UN on modalities and mechanisms to provide protection for the Syrian population.20 On 22 January 2012, the LAS decided that “coordination should take place with the Secretary-General of the United Nations in order to support the Mission.”21 It also decided on a plan for a peaceful political solution of the crisis in Syria and tasked the Chair of the Arab Ministerial Committee on the Situation in Syria and the Secretary-General of the LAS to brief the Security Council ‘in support of this plan’.22 Following a request by the LAS and Germany, this briefing was held at the ministerial level on 31 January 2012. Mr. Nabil Elaraby, the Secretary-General of the LAS, in addressing the Council, quoted Article 52 (3) of the UN Charter and said that it was “in that very context that the League of Arab States has come to the Security Council.”23 The objective of the LAS was for the Council to support its initiative, not to take its place.24 That support would “serve as an example of positive interaction between the United Nations and regional organizations.”25 On 4 February 2012, a draft resolution originally circulated by Morocco was vetoed by China and Russia.26 That resolution would have formulated demands of the Council “in accordance with the Plan of Action of the League of Arab States of 2 November 2011 and its decision of 22 January 2012” and encouraged the LAS to continue its efforts.27 After it had withdrawn its Observer Mission, the LAS called for the formation For the briefings to the Council by the Prime Minister of Qatar and the Secretary-General of the LAS, see SC, Provisional Verbatim Record of the 6710th Meeting, 31 January 2012, UN Doc. S/ PV.6710 (2012), 2 et seq. 19

20

See Letter of 20 January 2012, UN Doc. S/2012/55 (2012).

21

See Letter of 24 January 2012, UN Doc. S/2012/71 (2012).

22

Ibid.

23

UN Doc. S/PV.6710 (2012) (note 19), 6.

24

Ibid., 7.

25

Ibid., 9.

SC, Provisional Verbatim Record of the 6711th Meeting, 4 February 2012, UN Doc. S/PV.6711 (2012), 2. 26

27

Id., Draft Resolution, 4 February 2012, UN Doc. S/2012/77 (2012), paras. 5, 8.

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of a ‘joint Arab-UN peacekeeping force’.28 On 23 February 2012, former UN SecretaryGeneral Kofi Annan was appointed Joint Special Envoy of the UN and the LAS on the Syria crisis,29 an appointment welcomed by the Council.30 The Joint Special Envoy developed a ‘Six-Point Plan’ which was subsequently endorsed by the Council in Resolution 2042 (2012).31 The Council then mandated a UN Supervision Mission in Syria (UNSMIS)32 which, due to the increasing violence on the ground, was only shortlived.33 A final attempt in 2012 by the European Union members on the Council and the United States to pass a resolution under Chapter VII was again blocked by China and Russia on 19 July 2012.34 After the resignation of Mr. Kofi Annan in early August 2012, the Secretaries-General of the UN and the LAS appointed Mr. Lakhdar Brahimi as the Joint Special Representative for Syria.35 Despite Mr. Brahimi’s efforts, and despite the renewed calls of the LAS for the Council “to shoulder its responsibilities under the Charter of the United Nations,”36 the Council could not agree on a way forward. The ministerial-level meeting of the Council under the German Presidency on 26 September 2012 aimed at fostering and intensifying the fruitful cooperation between the Security Council, which has the primary responsibility for the maintenance of peace and security, and the League of Arab States, which – as a regional organization under Chapter VIII of the UN Charter – interacts with the Security Council in the context of the pacific settlement of disputes and the maintenance of international peace and security.37

28

Letter of 16 February 2012, UN Doc. S/2012/142 (2012).

29

UN Press Release of 23 February 2012, SG/SM/14124.

30

SC, Presidential Statement, 21 March 2012, UN Doc. PRST/2012/6 (2012).

31

SC Res. 2042 (2012) of 14 April 2012.

32

SC Res. 2043 (2012) of 21 April 2012.

UNSMIS suspended regular operations on 15 June 2012. The mission, whose original mandate was renewed in SC Res. 2059 (2012) of 20 July 2012, ended on 19 August 2012. 33

34 SC, Provisional Verbatim Record of the 6810th Meeting, 19 July 2012, UN Doc. S/PV.6810 (2012). 35 On 17 August 2012, the Council sent a letter to the UN Secretary-General reiterating support for his good offices and for the Joint Special Representative, see UN Doc. S/2012/654 (2012). 36

Letter of 29 May 2012, UN Doc. S/2012/385 (2012).

37

Letter of Germany of 6 September 2012, UN Doc. S/2012/686 (2012).

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The Council agreed a presidential statement, the first such statement specifically addressing the cooperation between the UN and the LAS.38 In that statement, which contains references to the Council’s primary responsibility for the maintenance of international peace and security and to Chapter VIII of the UN Charter, the Council inter alia acknowledged the intention expressed by representatives of both organizations to cooperate across a broad agenda of mutual concern, formulating adequate joint responses, where appropriate, to humanitarian crises, promoting human rights, freedom of expression, food security, environmental protection, and the fight against terrorism and the illicit trafficking of drugs and arms.39

The Council also expressed “its determination to take effective steps to further enhance cooperation between the United Nations and the League of Arab States, in accordance with Chapter VIII of the Charter.”40 The close interaction and cooperation between the UN, in particular the Security Council, and the LAS in 2011 and 2012 is but one example of the growing relationship between the UN and regional organisations in matters relating to international peace and security. Other examples, such as the dispute between Cambodia and Thailand41 in 2011, or the crisis in Mali42 and the Central African Republic (CAR)43 in 2012, have demonstrated that the Council encourages regional organisations to play a leading role in crisis management. As the Council has reaffirmed in Resolution 2033 (2012), “regional organizations are well positioned to understand the causes of armed conflicts owing to their knowledge of the region which can be a benefit for their efforts to influence the prevention or resolution of these conflicts.”44 38

SC, Presidential Statement, 26 September 2012, UN Doc. S/PRST/2012/20 (2012).

39

Ibid.

40

Ibid.

On 14 February 2011, the Council was briefed by the Chair of the Association of South-East Asian Nations (ASEAN) on the situation on the border between Cambodia and Thailand. They expressed support for ASEAN’s active efforts in this matter and encouraged the parties to cooperate with the organisation; see id., Press Statement of 14 February 2011, SC/10174. 41

42 See SC Res. 2056 (2012) of 5 July 2012, SC Res. 2071 (2012) of 12 October 2012 and SC Res. 2085 (2012) of 20 December 2012. 43 In a press statement of 27 December 2012, the members of the Council expressed support for the efforts undertaken by the Economic Community of the Central African States (ECCAS) to solve the crisis in CAR, see SC/10874. 44

SC Res. 2033 (2012) of 12 January 2012, Recital 4 Preamble.

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Virtually every conflict that comes before the Council today involves at least one regional or sub-regional organisation. The conflict in Libya, apart from being on the agenda of the LAS, also saw the involvement of the African Union (AU); the crisis in Cote d’Ivoire in 2011 mobilised both the AU and the Economic Community of West African States (ECOWAS). The cooperation of the Council with regional organisations today encompasses not only peacekeeping issues, but also early warning, conflict prevention, mediation and post-conflict peacebuilding; in other words the full range of the Council’s Chapter VI and VII functions.45 As the example of the interaction of the LAS with the Council on Syria has confirmed, Article 53 (1) of the UN Charter, according to which “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council,” has to be construed narrowly and does not encompass non-military sanctions adopted within a regional organisation. The right of the LAS to impose economic sanctions on Syria therefore remained unchallenged. The same applies to observer missions, such as the one decided upon by the LAS in late 2011, for which the LAS did not seek (nor did it need) authorisation from the Council. On the other hand, the repeated requests of the AU and ECOWAS for a Security Council authorisation under Chapter VII for an African-led stabilisation force in Mali to restore the territorial integrity of the State,46 which would clearly go beyond deploying a peacekeeping force, arguably confirms that this type of military operation qualifies as an enforcement action falling under Article 53 (1) of the UN Charter.47

45

Christian Walter, Introduction to Chapter VIII, in: Simma/et al. (note 2), 1434 et seq.

See Letter of the ECOWAS President of 28 September 2012, UN Doc. S/2012/739 (2012) and statements of the Permanent Representative of Mali (on behalf of ECOWAS) on 12 October 2012, SC, Provisional Verbatim Record of the 6846th Meeting, UN Doc. S/PV.6846 (2012), 3, and of the President of ECOWAS on 5 December 2012, id., Provisional Verbatim Record of the 6879th Meeting, UN Doc. S/PV.6879 (2012), 9. 46

See Christian Walter, Article 53, in: Simma/et al. (note 2), 1481 et seq. The Council did not discuss this issue, and non-legal considerations may have played a role in the formulation of the request. However, it is noteworthy that the Permanent Representative of Cote d’Ivoire (on behalf of ECOWAS), following the adoption of SC Res. 2085 (2012) of 20 December 2012 stated that the resolution provided ‘the necessary international legitimacy’ to carry out actions to restore the territorial integrity of Mali, see SC, Provisional Verbatim Record of the 6898th Meeting, 20 December 2012, UN Doc. S/PV.6898 (2012), 3. 47

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III. The Security Council and the International Criminal Court (ICC) On 17 October 2012, the Security Council held an open thematic debate on “peace and justice, with a special focus on the role of the International Criminal Court.” This was the first time that the Council had addressed the relationship between the Council and the ICC in a comprehensive manner. The debate offered an excellent opportunity for participants to examine the linkages between the two bodies and to address areas where cooperation could be strengthened and improved. The fact that this open debate was held a mere ten years after the coming into force of the Rome Statute is a testimony to a certain maturity of the relationship between the Council and the Court. It would seem that the years 2011 and 2012 were particularly rich in interaction. With Resolution 1970 (2011),48 the Security Council unanimously referred the situation in Libya to the ICC. This was a remarkable step given that only ten of the members of the Council at the time were parties to the Rome Statute (that number was reduced to six in 2012, before Guatemala became a party in July 2012). In the negotiations leading up to Resolution 1970 (2011), the proponents of such a referral (Germany amongst them) were able to point to the fact that the Permanent Representative of Libya to the United Nations had voiced his delegation’s support to “the measures proposed in the draft resolution to hold to account those responsible for the armed attacks against the Libyan Civilians, including t[h]rough the International Criminal Court.”49 One of the motivations for the referral articulated at the time was that the Council should send a clear message to all actors in Libya that there would be consequences for their actions. This preventive role of the Council is one that it shares with the ICC.50 The referral is a clear manifestation of the Council’s constant position that perpetrators of serious crimes must be held accountable and that there should be no impunity for such crimes. Over the last two years the Council has on many occasions acknowledged the contribution of the ICC, as well as other international tribunals, to the fight against impunity for the most serious crimes of concern 48

SC Res. 1970 (2011) of 26 February 2011.

It would appear that this letter dated 26 February 2011 was never circulated as an official document of the Security Council. However, the Council has taken note of it in Resolution 1970 (2011) of 26 February 2011, Recital 4 Preamble. 49

50 See the Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90 (Rome Statute), Recital 5 Preamble.

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to the international community.51 It has also ‘noted with appreciation’ the issuance of the first verdict of the Court in the Lubanga case in a press statement drafted by Germany.52 When States have referred situations to the ICC, such as in the case of Cote d’Ivoire and Mali, it has become the Council’s practice to take note of these referrals in its own decisions.53 In the case of Cote d’Ivoire, the Council supported the ICC when it encouraged the government to continue its cooperation with the Court,54 or when the Cote d’Ivoire sanctions Committee lifted the travel ban against former President Gbagbo in order to allow for his transfer to The Hague.55 In the case of the Lord’s Resistance Army (LRA), the Council has gone even further; in a presidential statement of 19 December 2012, the Council recalls that the International Criminal Court’s arrest warrants for Joseph Kony, Okot Odhiambo, and Dominic Ongwen […] have yet to be enforced, and calls upon all States to cooperate with the Ugandan authorities and the International Criminal Court in order to implement those warrants, and to bring to justice those responsible for the atrocities.56

It is also interesting to note that the Council, in Resolution 2085 (2012) which mandates the African-led International Support Mission in Mali (AFISMA), and against the background of the referral of the situation in Mali by the Government in Bamako, specifically calls upon AFISMA, consistent with its mandate, to support national and international efforts, including those of the International Criminal Court, to bring to justice perpetrators of serious human rights abuses and violations of international humanitarian law in Mali.57

A comparable, albeit less far-reaching provision exists for the UN peacekeeping operation in the Democratic Republic of the Congo (MONUSCO) where the Council, in Resolution 2078 (2012),

51 See e.g., SC, Presidential Statement, 19 January 2012, UN Doc. PRST/2012/1 (2012); id., Press statement of 5 July 2012, SC/10700. 52

Id., Press Statement of 16 March 2012, SC/10580.

SC Res. 1975 (2011) of 30 March 2011, Recital 13 Preamble (Cote d’Ivoire); SC Res. 2071 (2012) of 12 October 2012, Recital 14 Preamble (Mali); SC Res. 2085 (2012) of 20 December 2012, Recital 6 Preamble (Mali). 53

54

SC Res. 2062 (2012) of 26 July 2012, para.12.

55

SC, Report of the Sanctions Committee, 30 December 2011, UN Doc. S/2011/808 (2011), para. 27.

56

Id., Presidential Statement, 19 December 2012, UN Doc. S/PRST/2012/28 (2012).

57

SC Res. 2085 of 20 December 2012, para. 19.

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stresses the importance of the Congolese Government actively seeking to hold accountable those responsible for war crimes and crimes against humanity in the country […], including through its ongoing cooperation with the International Criminal Court and encourages MONUSCO to use its existing authority to assist the Congolese Government in this regard.58

One of the issues that has arisen over the course of the last few years is the need for the Council to stand behind its own decisions with regard to the ICC, particularly in the event of non-cooperation. Both the former and the current Prosecutor of the ICC, in their regular briefings to the Council on the situation of Darfur in the context of Resolution 1593 (2005), have lamented the Council not ‘doing its part’ in bringing to justice those indicted by the Court.59 One of the more far-reaching suggestions made was for the Council to ask UN Member States or regional organisations to execute arrest operations.60 While it may be unrealistic to expect the Council to act on this proposal, there is much that it could do, starting with responding to formal communications received from the ICC on non-cooperation by Member States.61 The Council did react, however, following the detention of ICC staff members in Libya, acting on a request of the President of the Court.62 In a press statement on 15 June 2012, the members of the Council expressed serious concern over the detention and urged the Libyan authorities to work towards the immediate release of the staff members. The members of the Council also emphasised “that it is the legal obligation of Libya under the Council’s resolution 1970 (2011) to cooperate fully with and provide any necessary assistance to the International Criminal Court pursuant to that resolution.”63

58

SC Res. 2078 of 28 November 2012, para. 19.

SC, Briefing of 5 June 2012, Provisional Verbatim Record of the 6778th Meeting, 19 June 2012, UN Doc. S/PV.6778 (2012), 3 (Moreno Ocampo); id., Briefing of 13 December 2012, Provisional Verbatim Record of the 6887th Meeting, 13 December 2012, UN Doc. S/PV.6887 (2012), 2 (Bensouda). 59

60

UN Doc. S/PV.6778 (2012) (note 59), 3 (Moreno Ocampo).

The Council, in 2011 and 2012, received formal communications from the ICC on noncooperation by Member States on the arrest and surrender of President Al-Bashir of the Sudan: Letter of 17 May 2011, UN Doc. S/2011/318 (2011), concerning Djibouti; Letter of 6 January 2012, UN Doc. S/2012/8 (2012), concerning Chad; and Letter of 6 January 2012, UN Doc. S/2012/9 (2012), concerning Malawi. These communications were never discussed by the Council. 61

62

Letter of 13 June 2012, UN Doc. S/2012/440 (2012).

63

SC, Press Statement of 15 June 2012, SC/10674.

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It is clear that there has to be a more active and consistent involvement of the Council on issues of cooperation and non-cooperation. The use of the Council’s Informal Working Group on International Tribunals could be a first step in this regard.64 The Informal Working Group may also wish to look into the question whether non-State parties to the Rome Statute, following a referral by the Council, are bound by relevant provisions of the Rome Statute, including those provisions that relate to the immunities of ICC staff in exercise of their function.65 Another interesting question relates to the power of the Council pursuant to Article 16 of the Rome Statute to defer ICC proceedings. The African Union, in connection with the arrest warrant issued in 2008 against President Al-Bashir of the Sudan, has consistently called for a deferral of the proceedings, a call that the Council has refused to answer.66 In 2011, the Council was confronted with another deferral request, this time by Kenya, regarding the ICC proceedings against six individuals, including three Government ministers, allegedly involved in the violence that followed the presidential elections of 2007.67 A few days before the ICC Pre-Trial Chamber II decided to issue summons for these individuals, Kenya requested the Council “to take urgent measures to defer the ICC proceedings.”68 Kenya argued that the ICC proceedings were likely to interfere with measures that Kenya, in line with the principle of complementarity, was putting in place to prosecute alleged perpetrators before national courts, and that there was a potential risk of renewed tension and violence. Council members agreed to hold an ‘informal interactive dialogue’ with the See statement of the Permanent Representative of Germany in the open debate of 26 November 2012, UN Doc. S/PV.6870 (2012) (note 12), 8, and of the Permanent Representative of France in the open debate of 17 October 2012, SC, Provisional Verbatim Record of the 6849th Meeting, UN Doc. S/PV.6849 (2012), 23; see also Letter of Costa Rica, Jordan and Liechtenstein of 20 November 2012, UN Doc. S/2012/860 (2012). 64

65 This became an issue in the negotiations leading up to the press statement of the Council on the ICC staff detained in Libya (see supra, note 63). See also Dapo Akande, The Legal Nature of the Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, Journal of International Criminal Justice 7 (2009), 333.

See Security Council Report, The Rule of Law: The Security Council and Accountability, 16 January 2013, 29–30, available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B6D27-4E9C-8CD3-CF6E4FF96FF9%7D/cross_cutting_report_1_rule_of_law_2013.pdf (accessed on 30 January 2013). 66

They are often referred to as the ‘Ocampo Six’; then ICC Prosecutor Moreno Ocampo had opened an investigation into the situation in Kenya proprio motu pursuant to Article 15 (3) of the Rome Statute in November 2009. 67

68

Letter of Kenya of 4 March 2011, UN Doc. S/2011/116 (2011).

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Permanent Representative of Kenya on 18 March 2011. In that meeting, many members expressed the view that issues of complementarity were best addressed by the Court; they were also not convinced that the potential risk of renewed tension and violence in Kenya was severe enough to meet the threshold required for a deferral resolution under Chapter VII of the UN Charter. In the end, and after further informal consultations in the Council, the members of the Security Council decided to inform Kenya that it had discussed the matter fully and did not agree on the matter.69 One area of concern relates to the financial burden of a referral, which the Council places exclusively on the ICC.70 It has been argued that this is contrary to Article 115 (b) of the Rome Statute and the financial prerogatives of the United Nations General Assembly (Fifth Committee).71 The ICC President has told the Council that it would be “difficult to sustain a system under which a referral is made by the Security Council on behalf of the United Nations, but the costs of any investigation and trial proceedings are met exclusively by the parties to the Rome Statute.”72 Germany has expressed the view that it should be for the United Nations, and not the parties to the Rome Statute, to bear the expenses of a referral.73 The General Assembly has at least recently opened the door for the United Nations and the Court to jointly address the issue.74 However, given the strong opposition voiced by some permanent members of the Council, finding an agreement will not be an easy task.75 Finally, it has been argued that the Council should be more predictable and consistent in its decisions to refer a situation to the ICC; when the Council uses a legal tool

Kenya had renewed its request in a further Letter of 23 March 2011, also asking for an open meeting of the Council, UN Doc. S/2011/201 (2011). 69

See SC Res. 1970 (2011) of 26 February 2011, para. 8: “[r]ecognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily.” An analogous provision is contained in the Council’s resolution that referred the situation in Darfur to the ICC, see SC Res. 1593 (2005) of 31 March 2005, para. 7. 70

71

Security Council Report (note 66), 34.

72

UN Doc. S/PV.6849 (2012) (note 64), 5.

73

Ibid., 19.

74

GA Res. 66/262 of 29 May 2012.

See the statement of the Permanent Representative of the United States in the open debate of 17 October 2012, UN Doc. S/PV.6849 (2012) (note 64), 9. 75

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to promote the rule of law, it too should be seen as adhering to the rule of law.76 While this argument has some merit, the fact remains that the Council is a political body, while the Court is an independent judicial institution. For the Council, a decision on a referral has to be made in the context of a threat to international peace and security, and involves weighing all the pros and cons involved. This became apparent in 2012, when the Council, in spite of calls to refer the situation in Syria to the ICC, did not take such a step.77 On the other hand, once the Council decides to refer a situation to the Court, the judicial process has been triggered and the matter is in the hands of the Court. The Council will not interfere in this process, and will only agree on an Article 16 deferral in exceptional circumstances. However, (non-)cooperation with the Court in referral cases challenges the authority of the Council to take binding decisions under Chapter VII of the UN Charter, and thus concerns the Council itself. Here the Council should take a more active stance than it has in the past.

IV. Security Council Procedure and Working Methods During Germany’s tenure on the Council, a total of four draft resolutions failed to be adopted due to the negative vote of one or two permanent members. On 18 February 2011, the United States vetoed a resolution sponsored by 79 States condemning the continuation of Israeli settlement activities in the Occupied Palestinian Territory.78

76 Annex to the Letter of Guatemala of 1 October 2012 transmitting a concept note for the open debate on “Peace and justice, with a special focus on the role of the International Criminal Court,” UN Doc. S/2012/731 (2012), para. 12. 77 Calls for such a referral were made in particular by the Office of the United Nations High Commissioner for Human Rights, notably in an open debate of the Council on 25 June 2012, see SC, Provisional Verbatim Record of the 6790th Meeting, UN Doc. S/PV.6790 (2012), 5. On 14 January 2013, Switzerland, also on behalf of 56 countries (including Germany) requested the Security Council to refer the situation in Syria as of March 2011 to the ICC “without exceptions and irrespective of the alleged perpetrators,” letter available at: http://www.eda.admin.ch/etc/medialib/downloads/edazen/ topics/intorg/un/missny/other.Par.0142.File.tmp/ICC-Brief%20def.pdf (accessed on 30 January 2013).

SC, Provisional Verbatim Record of the 6484th Meeting, 18 February 2011, UN Doc. S/PV.6484 (2011). Non-Council members can co-sponsor a resolution upon their request. However, the Council will only accept requests signed by representatives of UN Member States, and not those that are sub78

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Russia and China cast negative votes on draft resolutions on Syria, on 4 October 2011,79 4 February 201280 and 19 July 2012.81 Germany voted ‘yes’ on all four resolutions and had been a sponsor of the three resolutions concerning Syria. The use of the veto by China and Russia preventing the adoption of the Syria resolutions drew heavy criticism82 and has revived calls for the permanent members of the Council (P5) to refrain from using their veto to block Council action aimed at preventing or ending genocide, war crimes and crimes against humanity.83 In the open debate of the Council on working methods on 26 November 2012, France stated that it supported “the permanent members voluntarily and jointly foregoing the use of the veto in situations under the Council’s consideration in which mass atrocities are being committed and, more generally, which pertain to the responsibility to protect.”84 The other permanent members have kept silent on this proposal. Proceeding with a vote on a draft resolution, often after lengthy negotiations, can bring moments of high drama. During informal consultations on 16 March 2011 on the situation in Libya, Council members were working on a draft resolution circulated by France, Lebanon and the United Kingdom on no-fly zones over Libya. Russia had circulated its own proposal for a resolution that would have called for a ceasefire. Realising that Russia may have been ready to call for a vote on its proposal, the Permanent Representative of France requested ‘his’ draft to be put into Blue85 immedimitted by Groups such as the Non-Aligned Movement on their behalf; had this been the case, the list of co-sponsors would have been even longer. Id., Provisional Verbatim Record of the 6627th Meeting, 4 October 2011, UN Doc. S/PV.6627 (2011). 79

80

UN Doc. S/PV.6711 (2012) (note 26).

81

UN Doc. S/PV.6810 (2012) (note 34).

When Russia and China vetoed the second draft resolution on Syria on 4 February 2012, the Permanent Representative of Germany called it ‘a crying shame’, the Permanent Representative of the United Kingdom was ‘appalled’, and the US Permanent Representative said that the United States were ‘disgusted’, see UN Doc. S/PV.6711 (2012) (note 26), 4–6. 82

This has been a long-standing demand formulated by the S5 (Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland), see e.g., Draft Resolution, Enhancing the accountability, transparency and effectiveness of the Security Council, 15 May 2012, UN Doc. A/66/L.42/Rev. 2 (2012). 83

UN Doc. S/PV.6870 (2012) (note 12), 15; see also the statement of France in the open debate on 17 October 2012 UN Doc. S/PV.6849 (2012) (note 64), 23, calling it a “code of conduct”. 84

The sponsors of a draft resolution may request at any time during the negotiations that their draft resolution be issued by being put into ‘blue’. This is often done at the point when either a text has been informally agreed among the Council members or where the negotiators have reached the point where 85

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ately, ensuring that this draft would have precedence over the Russian draft.86 A similar situation arose in July 2012 when Council members were to decide on the fate of the United Nations Supervision Mission in Syria (UNSMIS). Again, two drafts had been circulated, one by Russia on 10 July 2012, the other by France, Germany, Portugal, the United Kingdom and the United States on 11 July 2012. The following day, in order to pre-empt Russia, the European members on the Council and the United States requested their text to be put into Blue.87 Russia followed on 13 July 2012,88 and both drafts were put on the agenda of the formal meeting of the Council on 19 July 2012. The vote was called on the European/US draft first, and was vetoed by Russia and China. In his explanation of vote, the Permanent Representative of Russia then announced that he would not submit his draft to a vote.89 Decisions of the Security Council can be adopted in different formats, the most commonly used being resolutions and presidential statements.90 Despite what might be assumed, the requirements for adopting a resolution are not more stringent than the requirements for adopting a presidential statement. In fact, a presidential statement requires consensus among all fifteen Council members, while resolutions require only nine affirmative votes (and the absence of a veto). Thus a Council member may wish to opt for a resolution rather than a presidential statement in order to obtain a particular Council ‘outcome’. In September 2012, when it became necessary for the Council to request the Secretary-General to present his next annual report on Children and Armed Conflict, Germany as ‘penholder’ chose the format of a resolution as it was clear that some Council members would insist on limiting the scope of that report.91 no further progress will be achieved through negotiation and a member still wishes to proceed with a vote on the resolution; see Informal Briefing Note on Blue Draft Resolutions, prepared by the Secretariat (1995), reprinted in: Sidney D. Bailey/Sam Daws, The Procedure of the UN Security Council (3rd ed. 1998), 553 et seq. 86 According to Rule 32 of the Council’s Provisional Rules of Procedure, “Principal motions and draft resolutions shall have precedence in the order of their submission”. 87

Draft Resolution, 19 July 2012, UN Doc. S/2012/538 (2012).

88

Draft Resolution, 17 July 2012, UN Doc. S/2012/547/Rev.2 (2012).

UN Doc. S/PV.6810 (2012) (note 34), 8–9. On 20 July 2012, the Council unanimously adopted SC Res. 2059 (2012), extending UNSMIS for a final period of 30 days. 89

90

See Andreas Zimmermann, Article 27, in: Simma/et al. (note 2), 888 et seq.

SC Res. 2068 of 19 September 2012 was adopted with eleven votes in favour and four abstentions (Azerbaidjan, China, Pakistan and Russia). See also Wasum-Rainer/Eick (note 3), 616, footnote 27. 91

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The year 2011 saw the rare occasion of a Council member dissociating itself from a presidential statement. On 3 August 2011, after the President had read out a presidential statement on Syria,92 the representative of Lebanon took the floor and stated: “[a]s Lebanon believes that presidential statement S/PRST/2011/16 adopted today does not help to address the current situation in Syria, Lebanon dissociates itself from the statement.”93 It was the understanding of the members of the Council that this dissociation did not invalidate the adoption of the presidential statement, but was merely meant to be a political statement.94 Indeed, as is customary, the President of the Council had stated at the beginning of the meeting that “after consultations among Council members, I have been authorized to make the following statement on their behalf.”95 The Council has continued its practice of including demands in its presidential statements. In 2012, it ‘demanded’ that the Lord Resistance Army (LRA) immediately end all attacks;96 that the M23 and other armed groups (in the Democratic Republic of Congo) cease all forms of violence and other destabilising activities and that any and all outside support to the M23 as well as other armed groups cease immediately;97 and that the mutinous troops in Mali return to their barracks.98 In the case of GuineaBissau, the Council ‘demanded’ the immediate restoration of the constitutional order as well as the reinstatement of the legitimate Government.99 In another presidential statement, the Council not only ‘strongly condemned’ the satellite launch by North Korea (DPRK), but also ‘demanded’ that the DPRK not proceed with any further launches using ballistic missile technology.100 In that statement, the Council also 92

SC, Presidential statement of 3 August 2011, UN Doc. S/PRST/2011/16 (2011).

Id., Provisional Verbatim Record of the 6598th Meeting, 3 August 2011, UN Doc. S/PV.6598 (2011), 2–3. 93

94 The representative of Lebanon, in her statement, had reaffirmed that “what takes place in Lebanon affects Syria, and what takes place in Syria affects Lebanon,” see ibid., 2. 95

Ibid., 2.

SC, Presidential statements of 29 June 2012, UN Doc. S/PRST/2012/18 (2012) and of 19 December 2012, UN Doc. S/PRST/2012/28 (2012). 96

97

Id., Presidential statement of 19 October 2012, UN Doc. S/PRST/2012/22 (2012).

98

Id., Presidential Statement of 26 March 2012, UN Doc. S/PRST/2012/7 (2012).

99

Id., Presidential Statement of 21 April 2012, UN. Doc. S/PRST/2012/15 (2012).

100

Id., Presidential Statement of 16 April 2012, UN Doc. S/PRST/2012/13 (2012).

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‘agreed’ to adjust the measures imposed by resolutions 1718 (2006) and 1874 (2009) and ‘directed’ the sanctions Committee to do so and to report back to the Council.101 The question whether these decisions are to be considered mandatory or legally binding was not discussed in the two years that Germany was on the Council.102 While it can be argued that there is no a priori reason why a presidential statement or other decision format than a resolution cannot convey a mandatory decision of the Council in the sense of Article 25 of the UN Charter, it would appear that under current practice, resolutions remain the appropriate format for legally binding decisions.103 When the DPRK conducted a further satellite launch in December 2012, the Council, in a resolution adopted on 22 January 2013, condemned the launch “which used ballistic missile technology and was in violation of Resolutions 1718 (2005) and 1874 (2009).”104 The presidential statement of 16 April 2012, which had ‘demanded’ that the DPRK refrain from any future launches, was only referred to in general terms in the preamble of the resolution, not in its operative part.105 As the years 2011 and 2012 have confirmed, presidential statements are often used by the Council as an intermediate step, signalling that – should the situation on the ground not improve – the Council would step up its approach and adopt a resolution. The cases of Guinea-Bissau and Mali are perfect examples where the Council eventually had to follow up on its presidential statements with resolutions.106 A presidential statement may also allow the Council to express itself in situations where Council members are too divided on a particular issue to adopt a resolution. In 2011, Council members had been discussing a proposal for a resolution on Syria for months

101

Ibid.

On this question see Stefan Talmon, The Statements by the President of the Security Council, Chinese Journal of International Law (2003), 419, 449–453. 102

This is the view also expressed by Talmon (note 102), 452–453; see also Security Council Report, Security Council Action under Chapter VII: Myths and Realities, 23 June 2008, available at: http:// www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9% 7D/Research%20Report%20Chapter%20VII%2023%20June%2008.pdf (accessed on 30 January 2013). 103

104

SC Res. 2087 (2013) of 22 January 2013, para. 1.

“Recalling its previous relevant resolutions, […] as well as the statements of its President of 6 October 2006 (S/PRST/2006/41), 13 April 2009 (S/PRST/2009/7) and 16 April 2012 (S/PRST/2012/ 13),” see ibid., Recital 1 Preamble. 105

106 See SC Res. 2048 (2012) of 18 May 2012 on Guinea-Bissau; SC Res. 2056 (2012) of 5 July 2012; SC Res. 2071 (2012) of 12 October 2012 and SC Res. 2085 (2012) of 20 December 2012 on Mali.

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before eventually settling for a presidential statement on 3 August 2011.107 The following year, after China and Russia had vetoed a draft resolution in February 2012, the Council did agree on two presidential statements in March and April 2012 containing some of the elements of the draft resolution.108 A comparable situation arose in April 2012 following the satellite launch of the DPRK, where the Council, on account of the position of China, settled for a presidential statement that led to ‘adjustments’ in the sanctions regime.109 As the presidential statement of 16 April 2012 on the DPRK also shows, the Council may use such a statement to ‘direct’ one of its subsidiary organs to perform certain tasks. Similarly, presidential statements often contain ‘requests’ to the SecretaryGeneral to submit reports or proposals.110 These are organisational and procedural decisions which bind the Council itself and its members as well as the Secretariat.111 Unlike presidential statements, press statements are never considered to be decisions of the Council.112 They are not published as official documents of the Security Council, and they are drafted so as to reflect positions taken by ‘the members of the Council’. However, over the past two years, the Council has on several occasions chosen to communicate a set of complex political messages, including ‘demands’ through press statements.113 Press statements have become regular instruments in the tool-box of the Council. They are often agreed line by line at the level of Permanent Representatives in informal consultations. As they do not convey decisions of the

107

UN Doc. S/PRST/2011/16 (2011) (note 92).

SC, Presidential Statements of 21 March 2012, UN Doc. S/PRST/2012/6 (2012), and 5 April 2012, UN Doc. S/PRST/2012/10 (2012). 108

109

See supra, note 100. The United States, supported by others, had been in favour of a resolution.

See e.g., SC, Presidential Statements of 19 January 2012 on the rule of law, UN Doc. S/PRST/ 2012/1 (2012), and of 25 April 2012 on illicit cross-border trafficking, UN Doc. S/PRST/2012/16 (2012). 110

111

Talmon (note 102), 449.

112

Zimmermann (note 90), 889.

See e.g., SC, Press Statements of 22 March 2012, SC/10590; id., Press Statement of 9 April 2012, SC/10603; id., Press Statement on Mali of 10 August 2012, SC/10741; id., Press Statement on Sudan/ South Sudan of 27 March 2012, SC/10594; and id., Press Statement on Central African Republic of 19 December 2012, SC/10867. See also Security Council Report, In Hindsight: Security Council Press Statements (2012), available at: http://www.securitycouncilreport.org/monthly-forecast/2012-05/ lookup_c_glKWLeMTIsG_b_8075207.php (accessed on 30 January 2013). 113

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Council,114 they may deal with issues or situations that are not on the agenda of the Council.115 Also, no formal meeting is required for their issuance. On one occasion in 2011, Council members issued a press statement while on a Council mission in Sudan in order to react quickly to unfolding events.116 The fact that the Security Council to this day operates on the basis of Provisional Rules of Procedure has been characterised as a demonstration of the will of the Council, and in particular its permanent members, to be able to modify these rules on an ad hoc basis, free from procedural limitations.117 In practice, the Council adheres to its Provisional Rules. The Council also has, over time, developed ‘practices’ and agreed to ‘measures’ which serve as guidance to the Council’s work. They have been incorporated in presidential notes of the Council and are being further developed and refined in the Council’s Informal Working Group on Documentation and Other Procedural Questions.118 As efforts to enhance the efficiency and transparency of the Council’s work, as well as interaction and dialogue with non-Council members, also forms part of the larger debate on Security Council reform (which is never discussed in the Council),119 improving the working methods of the Council can be the subject of some contro-

114 When a particular press statement included a request for the Secretary-General to submit a report to the Council, the Secretariat informed the German Presidency at the time informally that this was not to serve as a precedent; see SC, Press statement of 21 July 2011, SC/10335.

See e.g., id., Press statement of 23 February 2012 on attacks against Israeli diplomatic personnel, SC/10556; id., Press statement of 14 September 2012 on attacks against diplomatic premises, SC/ 10764. 115

116

Id., Press statement of 22 May 2011 on Abyei, Sudan, SC/10262.

117

Susanne Wasum-Rainer/Ingrid Jahn-Koch, Article 30, in: Simma/et al. (note 2), 1034.

A list of the recent practices and agreed measures has been compiled as an annex to a Note by the President of the Security Council, 26 July 2010, UN Doc. S/2010/507 (2010). See also Bühler (note 2), 961 et seq.; Security Council Report, Security Council Working Methods – a Work in Progress?, 30 March 2010), available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6E4FF96FF9%7D/Research%20Report%20Working%20Methods%202010.pdf (accessed on 30 January 2013). 118

119 Some Council members have emphasised the link between improving the working methods of the Council and the need for comprehensive reform; see e.g., the statements of the Permanent Representatives of Germany, India and Brazil in the open debate of 30 November 2011, SC, Provisional Verbatim Record of the 6672th Meeting, UN Doc. S/PV.6672 (2011), 10, 12 and 16.

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versy.120 Generally, the non-permanent members of the Council would emphasise the need for the Council to be more transparent and inclusive, while the permanent members would put a premium on its efficiency. In 2012, the Council was able to achieve some progress on its working methods. A note of 5 June 2012 included references to the increased use of video-conferencing and the more streamlined scheduling of the Council’s work, as well as other housekeeping issues, such as increased interactivity during informal consultations.121 On 12 December 2012, the Council agreed another note that aims at increasing interaction with non-Council members in open debates. The note also encourages the inclusion of more substantive information in the annual report of the Council to the General Assembly, and points to the usefulness of the ‘monthly assessments’ by Council Presidents, informal briefing sessions and formal wrap-up sessions.122 A third note of 17 December 2012 deals with the issue of appointing the chairpersons of the subsidiary organs of the Council, which has been the subject of some controversy between permanent and non-permanent members of the Council. Traditionally, the permanent members, after some bilateral consultations, have assigned the chairmanship of subsidiary organs to the newly elected non-permanent members; what is more, no permanent member is chairing any of the currently 21 subsidiary organs of the Council. Conversely, the permanent members (in essence the P3, i.e. France, the United Kingdom, and the United States) have assigned to themselves the role of ‘penholders’ on most issues and country-specific situations on the Council’s agenda, which gives them a premium on drafting decisions of the Council, initiating press statements and calling for meetings and informal consultations. There are some exceptions, notably the ‘pens’ on Afghanistan and ‘Children and Armed Conflict’, which were held by Germany in 2011 and 2012. This uneven distribution and the distribution method itself have led to some bitter complaints by non-permanent members. In a recent open debate, the representative of South Africa stated: In our experience, elected members of the Council are confronted by numerous constraints that result from the current configuration, which affords dominance and permanence of This also explains some of the acrimony surrounding the (failed) initiative of the S5 to ‘recommend’ improvements in the working methods of the Council via a GA resolution, see UN Doc. A/ 66/L.42/Rev.2 (2012) (note 83); see Bühler (note 2), 966 et seq. 120

121

SC, Note by the President, 5 June 2012, UN Doc. S/2012/402 (2012).

122

Id., Note by the President, 12 December 2012, UN Doc. S/2012/922 (2012).

558 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012 the non-elected members. That dominance is experienced at the very start of one’s tenure on the Council when the five permanent members allocate the chairmanships of the subsidiary bodies without themselves chairing any – and with little or no consultation with the members concerned. It further permeates the daily work of the Council as three permanent members are penholders on almost every country-specific issue on the Council’s agenda.123

The Permanent Representative of India had this to say: We then have the issue of ‘pen holders’. Quite apart from the fact that it takes quite a while to understand what the concept of a pen holder is and which member is holding which pen for which issue, it is difficult to understand why pen holding should basically be a monopoly of permanent members, with concentration in even fewer fingers.124

Germany actively supported reform efforts regarding penholderships and chairmanships of subsidiary bodies, guided by the view that all members should be eligible to fulfil those functions.125 In the end, the members of the Council agreed the following: The members of the Security Council support an informal process with the participation of all Council members as regards appointing the Chairpersons of the subsidiary organs from among Council members in a balanced, transparent, efficient and inclusive way, which facilitates an exchange of information related to the work of the subsidiary organs involved. To this end, the members of the Security Council should also consult informally with newly elected members soon after their election on the appointment of the Chairpersons of the subsidiary organs for the following year.126

Significantly, no agreement was reached on the issue of penholdership. It remains to be seen whether further progress can be achieved on this issue in the future. Reforming the working methods of the Council has often been described as an incremental process where progress is slow. In recent years, the Council has increased its interaction with non-Council members and other external participants, be it in formal meetings of the Council or in informal gatherings such as ‘informal interactive dialogues’ and ‘Arria-Formula’ meetings. During Germany’s Presidency of the Council in 2011, for instance, Council members conducted an informal interactive dialogue with high-level representatives from Eritrea, Djibouti, Kenya, Ethiopia and 123

UN Doc. S/PV.6870 (2012) (note 12), 17.

124

UN Doc. S/PV.6672 (2011) (note 119), 13.

For the statement of the Permanent Representative of Germany in the open debate of 26 November 2012, see UN Doc. S/PV.6870 (2012) (note 12), 8. 125

126

SC, Note by the President, 17 December 2012, UN Doc. S/2012/937 (2012).

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Somalia. Furthermore, in March 2012, Germany chaired an Arria-Formula meeting for Council members to meet with the UN Human Rights Council’s Commission of Inquiry on Syria. Presidencies of the Council have continued to provide regular briefings to nonCouncil members on a regular or ad-hoc basis, and to give regular briefings to the press following informal consultations. Council members in general share information with members of their regional groups. There is an established practice for the members of the European Union on the Council to brief their European Union colleagues following every closed meeting and informal consultation, and additionally on a weekly basis. The Security Council Secretariat has recently added valuable information on its website,127 including the ‘Current Reporting and Mandate Cycles’. Considerable information is also available through non-governmental organisations, in particular the Security Council Report,128 and social media.129 However, achieving greater transparency will remain a work in progress. The members of the United Nations, who have conferred on the Security Council primary responsibility for the maintenance of international peace and security, and on whose behalf the Security Council is acting (Article 24 of the UN Charter), will continue to insist on it. The key will be to maintain a balance between transparency and the Council’s effectiveness in preventing and resolving international conflicts. V. Concluding Observations The Security Council is a political organ. However, it does not operate in a legal vacuum. It acts within the Charter of the United Nations, its constitutional framework, and many of its decisions have a direct bearing on international law. The Council has recognised international law as an indispensable foundation of a more peaceful and just world. Today, the rule of law is an important concept in the work of the Council. All Security Council documents are available via: http://www.un.org/en/sc/documents (accessed on 7 February 2013). 127

All information about and publications by the Security Council Report are available via: http:// www.securitycouncilreport.org (accessed on 7 February 2013). 128

129 Several Security Council members, including Germany in 2011/12, posted information on their mission’s websites and via: www.twitter.com (accessed on 7 February 2013).

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It is of course up to the members of the Security Council to ensure that the Council carries out the responsibilities with which it has been entrusted. Throughout its two-year tenure, Germany was acutely aware of the Council’s central role in maintaining and restoring international peace and security. It urged the Council to live up to its ‘responsibility to protect’ and spared no effort in trying to overcome the impasse on the situation in Syria. Germany’s particular focus on strengthening the relationship between the Security Council and the League of Arab States was in recognition of the increasingly important role of regional organisations acting under Chapter VIII of the UN Charter. Germany was particulary engaged in the protection of children in armed conflict, contributing to the development of international humanitarian law in this particular area. As a party to the Rome Statute, it advocated a more constructive relationship between the Security Council and the International Criminal Court. As Chair of the Al-Qaida Sanctions Committee, Germany was active in ensuring fair and clear procedures for placing individuals and entities on sanctions lists and for removing them. The Security Council remains the framework for cooperation among States in addressing common challenges to peace and security. This includes new challenges such as climate change. In the presidential statement of July 2011 championed by Germany the Council for the first time recognised climate change as a threat multiplier. This will hopefully pave the way for a more pro-active approach by the Council on this particular issue.

Making UN Sanctions Work: Germany’s Chairmanship of the Al-Qaida/Taliban Sanctions Committee of the UN Security Council PETER WITTIG(

Introduction: Upon joining the Security Council as a non-permanent member in 2011, Germany assumed the chair of the Al-Qaida Sanctions/Taliban Sanctions Committee or the ‘1267 Committee’. Established in 19991 through Security Council Resolution 1267 (1999) as a consequence of the attacks on the US embassies in Kenya and Tanzania, this subsidiary body remains at the centre of the Security Council action against Al-Qaida and affiliated organisations to this day. The AlQaida regime is the most complex and advanced of the currently thirteen different sanctions regimes which the Security Council has established. There are three types of UN sanctions against individuals, groups, undertakings and entities associated with Al-Qaida: asset freezes, travel bans, and arms embargoes. Mandated to assist and supervise the enforcement of these measures, the Al-Qaida Sanctions Committee can claim some success in making terrorist operations more difficult. Nevertheless, as chair of the committee, Germany felt a need to reform this UN anti-terror sanctions regime because at the time that it took over the chair: – universal respect for the sanctions regime was being put into question. Increasingly, individual listings have been successfully challenged in various courts for ( Permanent Representative of Germany to the United Nations, New York. The author would like to thank his colleagues Daniel Krull and Karsten Geier for their most valuable support. Their expertise and commitment were essential for Germany’s successful work at the helm of this sanctions committee. 1 It was established by SC Res. 1267 of 15 October 1999 and was subsequently modified and strengthened by SC Res. 1333 of 1 December 2000, SC Res. 1390 of 16 January 2002, SC Res. 1455 of 17 January 2003, SC Res. 1526 of 30 January 2004, SC Res. 1617 of 29 July 2005, SC Res. 1735 of 22 December 2006, SC Res. 1822 of 30 June 2008 and SC Res. 1904 of 17 December 2009.

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lack of minimal due process elements. The Kadi case before the Courts of the European Union was the most prominent challenge.2 – The sanctions regime no longer corresponded to the evolving nature of the terrorist threat. Consequently, there were questions as to whether the sanctions still supported their political purpose and whether sanctions implementation was sufficiently effective. Germany has an extensive history of active engagement in the field of UN sanctions. It has worked together with the Group of Like-Minded States on Targeted Sanctions3 over the years to reform the Security Council system of targeted sanctions with a view to making them more transparent, more compatible with due process standards, and more effective and implementable. As a member of the Security Council in 2011 and 2012, Germany had the opportunity to turn words into practice. The reform of the Al-Qaida/Taliban sanctions system became a priority of the German membership of the Security Council. Strengthening the Rule of Law in the Security Council Sanctions Regime: When Germany assumed the chair of the Al-Qaida Sanctions Committee, universal respect of the ‘1267’ sanctions regime was being questioned by, among other things, court rulings, which have held that the sanctions regime lacked minimal due process elements. Courts and critics have found that remedies to listed individuals and entities were insufficient. Take, as an example, the Courts of the European Union: in 2005, the European Union Court of First Instance (CFI) found that while “resolutions of the Security Council […] fall […] outside the ambit of the Court’s judicial review […] the Court is empowered to check […] the lawfulness of the resolutions of the Security Council in question with regard to jus cogens,” including mandatory provisions concerning the See CFI, Case T 315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of 21 September 2005, 2005 ECR II-3649; id., Case T 306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of 21 September 2005, 2005 ECR II-3533; ECJ, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of 3 September 2008, 2008 ECR I-6351; EGC, Case T-85/09, Yassin Abdullah Kadi v. European Commission, Judgment of 30 September 2010, 2010 ECR I-2279. 2

3 An informal group consisting at present of Austria, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden, and Switzerland.

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universal protection of human rights.4 Following the European Court of Justice (ECJ) decision in Kadi,5 the by then renamed General Court of the European Union (EGC) held in its 2010 Kadi II decision that “the re-examination procedure operated by the Sanctions Committee clearly fails to offer guarantees of effective judicial protection.”6 The EGC verdict was scathing: [t]he Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee.7

Other courts have taken similar lines, including the Federal Court of Canada,8 the United Kingdom Supreme Court,9 and recently the European Court of Human Rights (ECtHR).10 These rulings opened up the perspective of individual courts invalidating the implementation of Security Council resolutions within their jurisdiction. This presented a grave challenge to the universality of the UN sanctions regime. As a member of the Security Council, Germany worked with its closest partners (France, the UK, and the USA) to respond to the challenge. This led to a landmark innovation: Security Council Resolution 1989 (2011) enlarged and substantially strengthened the role of the Ombudsperson for the Al-Qaida sanctions regime.11 The Security Council had originally established the office of the Ombudsperson in its Resolution 1904 (2009) to “receive requests from individuals and entities seeking to be removed from the Consolidated List”12 and to assist the sanctions committee in See CFI, Case T 315/01, Kadi (note 2), paras. 225, 226; CFI, Case T 306/01, Al Barakaat (note 2), paras. 276 et seq. 4

5

ECJ, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat (note 2).

6

EGC, Case T-85/09, Kadi (note 2), para 127.

7

Ibid., para. 128.

Federal Court of Canada, Abousfian Abdelrazik v. the Minister of Foreign Affairs and the Attorney General of Canada, Judgement of 4 June 2009, 2009 FC 580, available at: http://decisions.fct-cf.gc.ca/ en/2009/2009fc580/2009fc580.html (accessed on 5 March 2013). 8

9 United Kingdom Supreme Court, Her Majesty’s Treasury v. Mohammed Jabar Ahmed and others, Judgement of 27 January 2010, [2010] UKSC 2, available at: http://www.supremecourt.gov.uk/docs/ uksc_2009_0016_judgment.pdf (accessed on 5 March 2013).

ECtHR, Nada v. Switzerland, Judgement of 12 September 2012, Appl. No. 10593/08, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 5 March 2013). 10

11

SC Res. 1989 of 17 June 2011.

12

SC Res. 1904 (note 1), para. 21.

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processing such applications. Resolution 1989 (2011) added a key element: it mandated the Ombudsperson to “present to the Committee observations and a recommendation on the delisting of those individuals, groups, undertakings or entities that have requested removal from the Al-Qaida Sanctions List.”13 This recommendation was to be “either a recommendation to retain the listing or a recommendation that the Committee consider delisting.”14 The Security Council did not stop here. It decided to allot substantial weight to the Ombudsperson by determining that the sanctions committee could overrule the Ombudsperson’s recommendations only by consensus. Committee members retained the option, however, of taking the case to the Security Council proper, which would then reach a decision by its normal procedure. This represented a quantum leap: for all intents and purposes, the Security Council had created an outside review process of its targeted sanctions against individuals, groups, entities and undertakings associated with Al-Qaida. Moreover, this review process is essentially independent, given the significant obstacles for overruling an Ombudsperson recommendation to delist: the first option, a consensus reached by the Committee against the recommendation, is extremely hard to realise. The second option, referring a case to the Security Council proper for a political decision, carries with it a very high cost, as it would undermine the credibility of the Sanctions Committee, the Ombudsperson, and the entire delisting procedure. Security Council members refer to it as ‘the nuclear option’. In strengthening the office of the Ombudsperson to such an unprecedented extent, the Security Council introduced an important rule of law element into the UN sanctions regime. It answered the courts’ concerns in an attempt at forestalling a situation in which national or regional court decisions would jeopardise the application of the UN sanctions regime. From the point at which the Ombudsperson’s office was established until 31 January 2013, she15 received 36 delisting petitions. She has submitted 26 comprehensive reports to the Sanctions Committee and 24 cases (delisting requests from either individuals 13

SC Res. 1989 (note 11), para. 21.

14

Ibid.

15

The current Ombudsperson is former Canadian prosecutor and Judge Kimberly Prost.

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or organisations) have been completed. As a consequence, 20 individuals and 24 entities have been delisted. The Sanctions Committee has refused two delisting requests, and one petitioner has withdrawn his request. Among the beneficiaries of the new Al-Qaida sanctions regime was Mr. Kadi, who had gained legal prominence with his court cases in Europe and the United States. He was taken off the Al-Qaida sanctions list on 5 October 2012, following a de-listing recommendation by the Ombudsperson. Appeals to the Ombudsperson may be made directly or through a legal counsellor. According to the Ombudsperson, this has no effect on her recommendation or the eventual outcome of the procedure. Upon receipt of a delisting request, the Ombudsperson undertakes a preliminary assessment, which establishes, inter alia, whether the request addresses the designation criteria, and whether it constitutes a new or repeated request (which she will accept only if new material is presented). The Ombudsperson process then goes into a four to six month informationgathering phase. The Ombudsperson informs interested parties of the request, including the Sanctions Committee, the designating State, States of nationality or residence, and other relevant actors, and engages with them to obtain relevant information. The next stage is a two to four month dialogue phase, during which the Ombudsperson interacts with the petitioner, while simultaneously relaying questions asked by the Sanctions Committee, relevant States and other actors. The dialogue phase is of particular importance, since it gives the petitioner a chance to present his or her case. The Ombudsperson already begins the drafting of a report on the delisting request during the dialogue phase. This report contains a review of the case and the Ombudsperson’s recommendation whether or not to retain the listing. The Ombudsperson will base her recommendation on her determination of whether, according to her analysis and observations, there is sufficient information to provide a reasonable and credible basis for the listing at the time of the report (not at the time of listing).16 The report is presented to the Al-Qaida Sanctions Committee and translated into all official languages of the UN. In an informal meeting of the Committee, the Ombudsperson presents the case and answers questions. Committee discussions then proceed behind closed doors. Office of the Ombudsperson of the Security Council’s 1267 Committee, Approach to and Standards for Analysis, Observations, Principal Arguments and Recommendation (August 2011), available at: http://www.un.org/en/sc/ombudsperson/approach.shtml (accessed on 5 March 2013). 16

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Where the Ombudsperson recommends retaining the listing, the individual, group, undertaking or entity concerned will continue to be subject to the sanction measures. In those cases where the Ombudsperson recommends a delisting, the Committee chair may circulate a formal, written delisting proposal for decision immediately following the conclusion of the informal meeting. If Committee deliberations have indicated a need for follow-up, the chair may wait until a full 30 days have passed since the Ombudsperson’s report has become available in all official languages. Committee members then have ten days to take a decision. Should a Committee member object to the Ombudsperson’s recommendation, the Committee has 60 days to come to unanimity. If during that time no consensus emerges, the sanctions end. The only exception is that in situations where there is no consensus, any Committee member may submit the question whether to delist to the Security Council proper for a decision within 60 days. While this has not happened so far, the Security Council would apply its standard decision-making rules. Among the many difficult aspects of the Ombudsperson’s work, two bear highlighting: (1)

access to classified information. Much of the information upon which sanctions decisions are based is classified. For a variety of reasons – legal and operational, among others – States may not wish to share such material with the Ombudsperson (let alone with the petitioner). The Ombudsperson thus has to base her analysis and recommendation on potentially incomplete information. Wishing to facilitate the Ombudsperson’s work, a number of States17 have made arrangements for sharing classified material with the Ombudsperson. One State (Austria) has concluded a formal agreement on the exchange and mutual protection of classified information, and the United States has expressed willingness, and demonstrated an ability, to share confidential information on an ad hoc basis.

(2)

Use of information allegedly obtained by illegal means. The Ombudsperson has been severely criticised for not a priori disregarding information allegedly

17 Australia, Belgium, Costa Rica, France, Germany, Liechtenstein, Netherlands, New Zealand, Portugal, Switzerland, United Kingdom.

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obtained under torture.18 In this regard she has answered her critics: “[i]t is possible that information […] relevant to a particular listing by the Al-Qaida Sanctions Committee, will be challenged by the Petitioner as having been obtained through torture. […] [A]ny such allegation will be given careful and serious consideration by the Ombudsperson. Further, the Ombudsperson operates from the premise that information obtained through torture is inherently unreliable. […] [T]he Ombudsperson will not rely upon [such] information in the analysis and it will not form part of the basis for the recommendation.”19 Responding to the Evolving Nature of the Threat: Another important aspect of the reform efforts during Germany’s chairmanship of the Al-Qaida Sanctions Committee was guided by the aim to make the sanctions regime more responsive to the evolving nature of the terrorist threat. In 1999, when the Security Council established the sanctions regime, Al-Qaida was a relatively coherent group centred in Afghanistan, but with a global terrorist agenda. Twelve years later and following the death of Osama bin Laden, Al-Qaida had become more complex network of regional groups with a far less cohesive leadership, an internationally diverse range of supporters and active fighters. Al-Qaida had evolved into a much looser organisation, resembling a coalition of Islamic extremist groups, each with its own local and regional agenda. At the same time, Al-Qaida’s operating base had spread from Afghanistan to the Arabian Peninsula, Somalia and the Maghreb. By 2011, the single ‘Consolidated List’, which comprised both Taliban and AlQaida operatives, no longer addressed the challenges presented by either group. The two had grown apart: the sanctions against the Taliban needed to dissuade the Afghan opposition from acts of violence and, if possible, provide an incentive to join the peace and reconciliation process in their country. The importance of this political aspect has been confirmed by the close cooperation which the government of Afghanistan has offered to the Taliban Sanctions Committee. By contrast, the Al-Qaida See, e.g., Report of the UN Special Rapporteur on Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, 26 September 2012, UN Doc. A/67/396, paras. 146 et seq. 18

Office of the Ombudsperson of the Security Council’s 1267 Committee, Assessment of Information, 26 November 2012, available at: http://www.un.org/en/sc/ombudsperson/approachtoinfo. shtml (accessed on 5 March 2013). 19

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sanctions serve a preventive purpose. Their main aim is to render terrorist operations for individuals and entities associated with Al-Qaida more difficult by withholding access to financing and arms, as well as restricting cross-border movement. Thus, another important decision was taken in June 2011: by adopting Resolutions 1988 (2011)20 and 1989 (2011),21 the Security Council split the sanctions regime targeting individuals, groups, undertakings and entities associated with Al-Qaida from the sanctions regime targeting the Taliban. This step was confirmed on 18 December 2012, when the Security Council adopted, almost simultaneously, Resolution 2082 (2012)22 concerning the Taliban, and Resolution 2083 (2012)23 concerning Al-Qaida. There was another issue: quality control. The original Al-Qaida/Taliban sanctions list had been put together following the adoption of Security Council Resolution 1267 (1999)24 on the basis of input from UN Member States without much review. Consequently, many entries were outdated or simply no longer valid. On some occasions, an entry may be maintained beyond the demise of the individual, group, undertaking or entity concerned. This was the case, e.g., for Osama bin Laden, whose listing stayed in force in order to prevent his considerable financial assets from falling into the wrong hands. He was finally delisted on 21 February 2013. A special clause in Resolution 2083 (2012) concerning his financial assets had made this possible.25 In 2011, it was evident that some mechanism had to be found to ensure the list was brought up to date and regularly maintained. The Al-Qaida Sanctions Committee needed a responsive, useful and reliable tool – a ‘living sanctions list’. In its Resolution 1989 (2011), confirmed almost two years later in Resolution 2083 (2012),26 the Security Council introduced a number of steps to this end: it mandated the Sanctions Committee – to review twice annually those list entries lacking identifiers necessary to ensure effective sanctions implementation; 20

SC Res. 1988 of 17 June 2011.

21

SC Res. 1989 (note 11).

22

SC Res. 2082 of 17 December 2012.

23

SC Res. 2083 of 17 December 2012.

24

SC Res. 1267 (note 1).

25

SC Res. 2083 (note 23), para. 32.

26

SC Res. 1989 (note 11), para. 21; SC Res. 2083 (note 23), para. 18.

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– to review twice a year a list of individuals reported to have died, and respectively of entities that have ceased to exist; and – to verify once a year all list entries that have not been otherwise reviewed in more than three years. Enhancing Implementation: The Al-Qaida sanctions regime can only attain its full potential if there is universal implementation. A number of UN Member States, including Security Council members, have increasingly insisted that there is a need for implementation assistance. Implementing the Al-Qaida sanctions presents considerable challenges. One of a rather technical nature is that the asset freeze measures in a number of States refer to the ‘Consolidated List’, making it difficult to reflect the split between the Al-Qaida and the Taliban sanctions lists introduced in 2011. A more political, and rather thorny issue for some States, is how to deal with ransom demands by individuals, groups, undertakings or entities on the Al-Qaida Sanctions List: in the Maghreb in particular, Islamic extremist groups have been engaging in kidnapping for ransom for some years now. Meeting such ransom demands in an effort to fulfil a State’s legal (often constitutional) obligation to protect its citizens may well be conceived as incompatible with the Al-Qaida Sanctions regime. The travel ban, which is ostensibly straightforward, is also difficult to implement: borders are porous and often even entirely uncontrolled in areas where groups affiliated with Al-Qaida operate. Even where there are border posts, there may not be access to the technology and information required to prevent illicit crossings. The form of the sanctions list itself presents a problem, containing multiple transcriptions of names and aliases used by individuals on the list. While the Al-Qaida leadership is mostly using videos as its main weapon these days, the arms trade ban has not kept Al-Qaida affiliates from acquiring guns and munitions, sometimes even heavy equipment. Recent events in Mali made the AlQaida affiliated forces there look less like a terrorist group and rather more like a paramilitary force. The same is true for Al-Qaida on the Arabian Peninsula and Al Shabab in Somalia. Variations in the profile and tactics of listed groups, according to the weapons they have and the weakness of opposing State authorities, have become a particular feature of Al-Qaida and have had an influence on the trend away from a global terrorist campaign to more local agendas.

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Ultimately, UN sanctions implementation is facing considerable challenges, as is implementation assistance. These challenges are not made easier by the complex UN counter-terrorism architecture: the Counter-Terrorism Implementation Task Force is made up of entities associated with the General Assembly (6th Committee, Ad-hoc Working Group), the Security Council (Counter-Terrorism Committee, Al-Qaida Sanctions Committee, Non-Proliferation Committee), seven Secretariat units, as well as fifteen international agencies, organisations and programmes, and six observers. Each of these has its own agenda; all are engaged in one aspect or another of counterterrorism. For many years, an important actor in the field of sanctions implementation assistance has been the UN Counter Terrorism Executive Directorate (CTED). The CTED has been paying special attention to administrative and judicial aspects of counter-terrorism. Complementing these efforts, the Al-Qaida Sanctions Committee Monitoring Team has engaged in some financial sanctions implementation efforts. Recently, a new institution, the Counter Terrorism Centre, funded by Saudi Arabia, is putting forward projects aiming, inter alia, at social and educational aspects. Coordination between these actors and their efforts will remain an important challenge. In 2012, the Secretary-General put forward a proposal to establish a highranking counter-terrorism coordinator. So far, this initiative has – unfortunately – not yet come to fruition. Conclusion: Targeted sanctions are among the Security Council’s most important tools in crisis management. Germany’s efforts in the Security Council were aimed at ensuring that the various UN sanctions regimes become more stringent, serve a clearer political purpose, and are better respected and implemented. This requires minimal elements of due process, so that national and regional courts will not strike the sanctions provisions down. It further requires that the sanctions lists are flexible and up to date, corresponding to the changing nature of the terrorist threat. Finally, a point which deserves more attention is helping Member States to implement the sanctions regimes effectively and better coordination of the various UN efforts in this regard. The Al-Qaida sanctions regime serves as a kind of testing ground for the United Nations sanction system as a whole. Germany has argued that institutions and procedures successfully established for the Al-Qaida regime should be transferred to other targeted sanctions regimes. This goes in particular for the Ombudsperson procedure.

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Germany and the Group of Like-Minded States on Targeted Sanctions, mentioned above, have prepared a number of proposals for the further development and fine-tuning of the regime. These include the following: – enhancing cooperation of States with the Ombudsperson for information gathering; – codifying the Ombudsperson practice; – improving procedural and material transparency and clarifying listing criteria; – extending the Ombudsperson’s mandate to other sanctions regimes where appropriate; – allowing the Ombudsperson to transmit requests for humanitarian exemptions, and to assist persons or entities who are inadvertently affected by the sanctions regime; – imposing time limits for all listings; and – administrative improvements. Many of these proposals have found broad support among UN Member States. The ‘like-minded’ demands have had a strong influence on the discussions concerning the prolongation of the Sanctions Regime, and some were taken up in Resolution 2083 (2012). Extending the Ombudsperson procedure gradually, where appropriate, to other UN targeted sanctions regimes will be among the most challenging tasks ahead. It is indeed difficult to understand why only individuals, groups, entities and undertakings listed under the Al-Qaida sanctions regime should benefit from the Ombudsperson review process. A consequence of the current situation is an inequality between those on the former consolidated Al-Qaida/Taliban Sanctions List who were listed because of their Taliban association and those listed because of their affiliation with Al-Qaida. The former have no access to independent review; the latter do. Another effect of the current imbalance is that persons taken off the Al-Qaida list may become listed under a different sanctions regime without recourse to an independent review procedure.27 27 This happened in 2012 in the case of Ali Ahmed Nur Jimale: following a recommendation of the Ombudsperson, he was removed from the Al-Qaida sanctions list, only to be listed that same day under the Eritrea/Somalia sanctions regime, where no review process such as the Ombudsperson procedure exists.

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In a nutshell: making UN sanctions more effective and more compatible with basic standards of the rule of law is a permanent challenge. Security Council members must address this challenge in order to ensure respect for the Security Council’s decisions and to see them implemented. Germany will continue to be a driving force in that endeavour – inside or outside of the Security Council.

Germany’s Contribution to the Protection of Biodiversity and Ecosystem Services by Hosting the IPBES Secretariat in the UN City of Bonn ANTJE SIERING(

I. Introduction In April 2012, the second plenary meeting of UNEP to stipulate modalities and institutional arrangements for an Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) took place in Panama City, Panama. Hosted by the United Nations Environment Programme (UNEP), one of the outcomes of this meeting was the adoption of a resolution1 establishing the IPBES as an independent intergovernmental body.2 Germany awaited the foundation of this body with particularly bated breath as it had applied for the UN City of Bonn to be selected to accommodate the Secretariat of the IPBES.3 On 19 April 2012 a vote was held, and the majority voted in favour of the German application.4 This article explores Germany’s role in the international protection of biodiversity and ecosystem services, especially in light of its hosting the IPBES. To do this it is necessary to explore the history of the IPBES, its mandate, its structure and financing, ( Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1 UNEP, Report of the second session of the plenary meeting to determine modalities and institutional arrangements for an intergovernmental science-policy platform on biodiversity and ecosystem services, 21 April 2012, UNEP/IPBES.MI/2/9, Annex I. 2

Ibid., Annex I, para. 1.

UNEP, Executive summaries of the offers submitted by the Governments of France, Germany, India, Kenya and the Republic of Korea to provide the physical location of the secretariat of an intergovernmental science-policy platform on biodiversity and ecosystem services, 26 January 2012, UNEP/ IPBES.MI/2/5/Add.1, 17. 3

4

See supra, note 1, para. 30.

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and finally the German offer to host the IPBES Secretariat in Bonn, which constitutes the overarching German contribution.

II. History of the IPBES Developing environmental law and policy can be problematic due to the requirement of basic scientific knowledge and inter-disciplinary skills relating to the particular environmental problems in focus. The protection of biodiversity is an especially complex assignment as it entails preserving the variability among living organisms from all sources.5 According to Article 2 of the Convention on Biological Diversity (CBD),6 this includes the diversity within species, between species and of ecosystems. Closely related to the protection of biological diversity is the preservation of the benefits people obtain from ecosystems, referred to as ecosystem services.7 Human beings depend on these services, which include, for example, the sustainable replenishment of fish stocks needed for nourishment and the decomposition of waste. To protect and save the world’s biodiversity and ecosystem services effectively, policymakers need to include complex scientific aspects to reach their decisions. For this, they need the support of the scientific community. In the last few years the states have slowly come to the conclusion that the cooperation between scientist and policymaker needs to be intensified to develop a more effective governance of biodiversity and ecosystem services. The need for strengthening scientific expertise in policy-making has led to discussions about establishing an intergovernmental platform on biodiversity and ecosystem services aimed at intensifying the utilisation of scientific experience in policy-making. Working towards the development of such a platform, three ad hoc intergovernmental and multi-stakeholders meetings were held. The first took place in Putrajaya, Malaysia

5

Art. 2, Convention on Biological Diversity, 5 June 1992, UNTS 1760, 146.

6

Ibid.

In the 2005 Millennium Ecosystem Assessment Report ecosystem services are defined as the benefits people obtain from ecosystems; see Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis (2005), V. 7

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in November 2008.8 During this meeting, convened by the Executive Director of UNEP,9 there was broad acknowledgement of the need to intensify the interaction between policy-makers and scientists.10 Yet the participants from 78 States and 25 organisations could not agree whether there really was a need for a new platform or whether the current system, consisting of different national and international sciencepolicy interfaces for biodiversity and ecosystem services, simply had to be improved.11 Following this uncertainty many participants expressed the need for a gap analysis of the strengths and weaknesses of the existing system.12 In the following discussion many recommendations about the structure, legal personality, programme of work and budget of a potential new platform were made, but in the end there was broad consensus that such discussion of these aspects was premature.13 During the 25th session of the UNEP Governing Council, the Executive Director reported on the outcome of the first intergovernmental and multi-stakeholder meeting concerning an intergovernmental science-policy platform on biodiversity and ecosystem services.14 The Governing Council subsequently requested the Executive Director to convene a second meeting,15 which took place in October 2009 in Nairobi, Kenya.16 As a result of this meeting many participants expressed their support for a new intergovernmental system to improve the policy-science interaction in the field

UNEP, Report of the ad hoc intergovernmental and multi-stakeholder meeting on an intergovernmental science-policy platform on biodiversity and ecosystem services, 12 November 2008, UNEP/ IPBES/1/6. 8

9

Ibid., Annex, para. 1.

10

Ibid., para. 27.

11

Ibid., Annex, paras. 7 et seq.

12

Ibid., Annex, para. 7.

13

Ibid., Annex, paras. 8 et seq.

UNEP, Report by the Executive Director: Intergovernmental science policy platform on biodiversity and ecosystem services, 19 November 2008, UNEP/GC.25/15. 14

15 UNEP, Proceedings of the Governing Council/Global Ministerial Environment Forum at its twenty-fifth session, 26 February 2009, UNEP/GC.25/17, Annex I, Decision 25/10, para. 3.

UNEP, Report of the second ad hoc intergovernmental and multi-stakeholder meeting on an intergovernmental science-policy platform on biodiversity and ecosystem services, 12 November 2009, UNEP/IPBES/2/4/Rev.1. 16

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of biodiversity and ecosystem services.17 Based on the gap analysis18 there was broad agreement that a new mechanism could potentially add significant value in areas in which strengthening the existing system was insufficient.19 There was, however, disunity concerning to whom the new mechanism should respond and, although there was full agreement that it should be an intergovernmental mechanism, there was discord about who should be involved.20 Some participants requested further information to ensure that the establishment of a new platform would not lead to a duplication of efforts.21 In the end, they agreed to have a third and final meeting to determine if a new intergovernmental science-policy platform on biodiversity and ecosystem services should be established.22 In June 2010 in Busan, Republic of Korea, the participants of the third ad hoc intergovernmental and multi-stakeholder meeting23 agreed the Busan Outcome confirming the establishment of a new intergovernmental science-policy platform on biodiversity and ecosystem services.24 The Busan Outcome describes the new platform’s assignment and determines the principles of its work,25 e.g. to be scientifically independent and ensure credibility,26 or to take an interdisciplinary and multidisciplinary approach.27

17

Ibid., Annex, para. 26.

A summary of the gap analysis can be found in: UNEP, Executive Summary: Science-policy interface on biodiversity and ecosystem services: gap analysis, 3 August 2009, UNEP/IPBES/2/2. 18

19

See supra, note 16, Annex, para. 26.

20

Ibid., Annex, paras. 27, 28.

21

Ibid., Annex, para. 29.

22

Ibid., Annex, para. 31.

UNEP, Report of the third ad hoc intergovernmental and multi-stakeholder meeting on an intergovernmental science-policy platform on biodiversity and ecosystem services, 11 June 2010, UNEP/ IPBES/3/3. 23

24

Ibid., Annex, para. 6.

25

Ibid., Annex, para. 7.

26

Ibid., Annex, para. 7 (b).

27

Ibid., Annex, para. 7 (h).

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Shortly after the Busan Outcome, the tenth conference of the State parties of the CBD underlined the importance of improving the science-policy interface and expressed support for the establishment of an intergovernmental science-policy platform on biodiversity and ecosystem services.28 In addition to this, the UN General Assembly urged the commencement of work on the new platform. In a resolution adopted at its 65th session the UN General Assembly requested UNEP to convene a plenary meeting to address questions of modalities and institutional arrangements of a new platform in order to fully operationalise it.29 UNEP followed this request and from 3–7 October 2011 the first session of the plenary meeting30 to stipulate modalities and institutional arrangements for an intergovernmental science-policy platform on biodiversity and ecosystem services was held in Nairobi, Kenya.31 During this meeting the representatives of the participating governments determined the functions and operating principles32 and deliberated the possible structure33 of the new platform as well as processes and elements that might be considered to select host institutions and the physical location of the platform’s Secretariat.34 This laid the foundation for the second session of the plenary meeting, which took place in Panama City, Panama in April 2012, where the State representatives finally decided to establish an independent intergovernmental body, the IPBES.35

28 UNEP, Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity, 20 January 2011, UNEP/CBD/COP/10/27 of 29 November 2010, Appendix 2, 80. 29

GA Res. 65/162 of 20 December 2010, para. 17.

Following the Busan outcome, the plenary meeting of the new platform should be open to all UN Member States and regional economic integration organisations; intergovernmental organisations and other relevant stakeholders should participate as observers, see supra, note 23, Annex, para. 6 (g). 30

31 UNEP, Report of the first session of the plenary meeting to determine modalities and institutional arrangements for an intergovernmental science-policy platform on biodiversity and ecosystem services, 10 October 2011, UNEP/IPBES.MI/1/8. 32

Ibid., Annex I.

33

Ibid., Annex II.

34

Ibid., Annex III.

35

See supra, note 1, Annex I, para. 1.

578 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

III. Link to the United Nations System, Mandate, Structure and Financing of the IPBES A. IPBES in the United Nations System

When the resolution to establish the IPBES was adopted, the State representatives had not yet taken the decision concerning the link of the IPBES to the United Nations System, postponing this until the first session of the IPBES plenary meeting.36 During the first session the plenary did not reach a decision on this question and decided to further reflect upon the topic.37

B. Mandate

The above-mentioned gap analysis found that the existing science-policy interaction system could be used as a basis for an intensified science-policy interface, but that it is partly insufficient because of a limited budget and mandate.38 Furthermore, the existing system did not generate common frameworks, methodologies and basic understandings39 and needed even more coordination on the level of governance and in respect of the exchange of knowledge, which could avoid duplication of work.40 Although many mechanisms delivered knowledge to policy-makers, in some cases the information was not the best available, not made for the regional level or not presented in a manner which enabled politicians to factor the full range of biodiversity or ecosystem service aspects into their decisions.41 In the Busan Outcome the participants agreed that the new platform, which was to be established as an independent intergovernmental body,42 should be founded to 36

Ibid., Annex I, para. 2.

IPBES, Report of the first session of the Plenary of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, 31 January 2013, IPBES/1/12, para. 38. 37

38

See supra, note 18, paras. 10 et seq.

39

Ibid., para. 13.

40

Ibid., para. 18.

41

Ibid., para. 16.

42

See supra, note 23, Annex, para. 6 (f).

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strengthen the use of science in policy-making, leaving it in a position to provide responses to requests from governments.43 They decided that the platform’s assignment should be to work together with the governments to identify and prioritise scientific information,44 but it should not be its task to undertake new research.45 Instead it should cooperate with scientific organisations, policymakers and founding organisations46 and catalyse efforts to generate further research.47 The new platform should perform regular assessments regarding the extent of knowledge about biodiversity and ecosystem services on the global, regional and sub-regional levels.48 Beyond working with scientific data they further recommended that the new platform should support policy-makers in formulating and implementing their policy.49 During the second session of the plenary meeting in April 2012 the participating governments adopted a resolution whose regulations follow the conclusions made in the Busan Outcome.50

C. Institutional Arrangements

The decision-making body of the IPBES is the plenary,51 which is open to all UN Member States.52 To become a Member State of the plenary, the State simply has to express its intention to do so.53 Any non-Member State, body, organisation, or qualified community may participate as an observer.54 The functions of the plenary are diverse but the most important one is responding to the requests made by govern43

Ibid., para. 6 (a).

44

Ibid., para. 6 (b).

45

Ibid.

46

Ibid.

47

Ibid., para. 6 (a).

48

Ibid., para. 6 (c).

49

Ibid., para. 6 (d).

50

Ibid., para. 6; see supra, note 1, Appendix I, paras. 1 et seq.

51

See supra, note 1, Appendix I, para. 4.

52

Ibid., Appendix I, para. 5.

53

Ibid.

54

Ibid., Appendix I, para. 6.

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ments,55 which is the main assignment of the IPBES. It seems that virtually any interested organisation or community that supports the competence or interest of the platform may obtain observer status and participate in the plenary,56 though without the ability to cast votes or join block consensus.57 The officers of the plenary, one chair and four vice-chairs, are to be selected by the plenary while ensuring that all five geographical UN regions are represented.58 One of their functions is to represent the platform.59 The Secretariat acts under the direction of the plenary. Its functions are mainly of an administrative nature, e.g. organising meetings and providing administrative support for them,60 facilitating communication between the plenary and potential working groups,61 and assisting in the mobilisation of financial resources.62 In the future there will be different subsidiary bodies with administrative and scientific functions.63 Additionally, the plenary has the power to create working groups to implement the work programme of the platform.64

D. Financing

The question of financing the platform is very important for the operationalising of the IPBES. The plenary will establish a core trust fund which is to receive voluntary contributions from States, UN bodies, global environmental facilities, intergovernmental organisations, and other stakeholders.65 In order to ensure the independence of the IPBES it is essential that its funding and other contributions are received 55

Ibid., Appendix I, para. 7 (b).

56

See supra, note 31, Annex II.

57

See supra, note 1, Appendix II, Rule 7.

58

Ibid., Appendix I, para. 8.

59

Ibid., Appendix I, paras. 9 (c), 10 (c).

60

Ibid., Appendix I, para. 19 (a).

61

Ibid., Appendix I, para. 19 (c).

62

Ibid., Appendix I, para. 19 (f).

63

Ibid., Appendix I, paras. 13 et seq.

64

Ibid., Appendix I, paras. 17 et seq.

65

Ibid., Appendix I, para. 22.

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without conditions attached, as such conditions could compromise its aims. This is why additional contributions may only be accepted from outside the trust fund in exceptional circumstances, e.g. direct support for specific activities.66

IV. Hosting the IPBES Secretariat in Bonn During the first session of the plenary meeting to determine modalities and institutional arrangements for an intergovernmental science-policy platform on biodiversity and ecosystem services, the participants discussed the selection of the location of the platform’s Secretariat.67 They discussed elements to be taken into consideration by the States during the second session, e.g. the availability of local transport facilities,68 duration of arrangements regarding office space,69 privileges and immunities that would be conferred on the Secretariat and its staff,70 and the availability of institutional mechanisms to support activities at the regional and sub-regional levels.71 Every interested State was invited to make an application to provide the physical location of the Secretariat. The applications were to be submitted to the chair of the bureau, Mr. Robert Watson (United Kingdom), who was elected during the first session,72 no later than 15 January 2012.73 The proposals were to be voted on at the second session of the plenary meeting.74 During the intercessional time between the first and the second plenary meeting, France, Germany, India, Kenya and the Republic of Korea delivered applications to host the Secretariat on their territories.75

66

Ibid., Appendix I, para. 23.

67

See supra, note 31, Annex III, paras. 10 et seq.

68

Ibid., Annex III, para. 10 (e).

69

Ibid., Annex III, para. 10 (r).

70

Ibid., Annex III, para. 10 (s).

71

Ibid., Annex III, para. 10 (v).

72

Ibid., para. 13.

73

Ibid., Annex III, para. 11.

74

Ibid., Annex III, para. 13.

75

See supra, note 3.

582 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

In its proposal, Germany commented on every above-mentioned element considered important in the first session of the plenary meeting.76 It explained that the City of Bonn fulfilled every criterion. Given that Bonn was the capital of the Federal Republic of Germany until 1990, the German application outlined that the infrastructure was more than adequate, e.g. there was access to qualified conference-serving staff and international transportation facilities.77 Germany guaranteed that the location of the IPBES Secretariat in Bonn would be on the UN Campus, adjacent to the Rhine, with views overlooking the Siebengebirge nature reserve.78 International conferences may be held in the main chamber of the former Bundestag (German Parliament), which has now been redeveloped into the 1,275 capacity ‘World Conference Center Bonn’, where the existing buildings are also being extended.79 The fact that the city of Bonn actually has sufficient capacities to host the Secretariat would enable the IPBES to start its work directly.80 Furthermore, institutional criteria and the social aspects, e.g. the availability of health facilities and the availability of local schools,81 were also fulfilled. The German application also illustrated Bonn’s inextricable link to the protection of biodiversity. The body responsible for biodiversity in Germany, the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, is located in Bonn.82 A range of organisations of importance for the protection of biodiversity and ecosystem services on the international, national and regional levels have their headquarters in Bonn. It is also an important UN city, with eighteen UN organisations based there, e.g. the Secretariat of the United Nations Framework Convention on Climate Change83 and the Secretariat of the Convention for the Conservation of

76

Ibid., 18 et seq.

77

Ibid.

78

Ibid., 25.

79

Ibid., 18.

80

Ibid., 25.

81

Ibid., 23.

82

Ibid., 18.

83

United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1777, 107.

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Migratory Species of Wild Animals84 (CMS).85 Partially as a result of this, Bonn has had a lot of experience hosting international conferences.86 In 2008 the ninth conference of the parties of the CBD was held there.87 All these aspects spoke in favour of the German application. The other applicant States were unable to provide sufficient competition to the German application on every point. Even France, which applied for the IPBES to be located in Paris, was unable to offer a comparable location. The French application stated that IPBES meetings would take place in different locations, e.g. the historic Grand Amphitheater with 300 seats or in the Ministry of Foreign and European Affairs.88 Parallel to the advantages the UN Campus in Bonn held for the IPBES Secretariat, the financial aspects were also very important for the IPBES. In accepting the German application, the IPBES would not have to cover the costs of renting the buildings in Bonn,89 of building and maintenance costs90 or of furnishing and equipping offices and meeting rooms.91 Moreover, Germany would pay for the removal cost of the Secretariat, the costs of language courses for employees and provide IPBES employees with travel passes for the Cologne/Bonn area at a discounted price.92 Additionally, Germany promised to pay € 1 million to the Trust Fund and to make additional funds available for IPBES events.93 Following the German application it was obvious that Germany was willing to make a huge financial contribution to the IPBES. E.g. the Republic of Korea, which offered the IPBES offices in the Seoul Global Center, would demand up to 70–80 % of the market price for the office rent94 but planned to provide 84 Convention on the Conservation of Migratory Species of Wild Animals, 23 March 1979, UNTS 1651, 333. 85

See supra, note 3, 22.

86

Ibid., 18.

See CBD, Report of the Conference of the Parties to the Convention on Biological Diversity on the Work of its Ninth Meeting, 30 May 2008, UNEP/CBD/COP/9/29. 87

88

See supra, note 3.

89

Ibid., 26.

90

Ibid.

91

Ibid.

92

Ibid., 31.

93

Ibid., 31.

94

Ibid., 54.

584 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

$ 2 million per year to facilitate the operation of the IPBES Secretariat.95 Neither Kenya nor India gave information regarding their contributions to the Trust Fund. It can be assumed that the financial aspects played a important decisive in the decision on 19 April 2012 made by the participating Member States of the second plenary meeting which resulted in the IPBES Secretariat being located in the City of Bonn.96

V. Conclusion In attracting the IPBES Secretariat to Bonn, Germany took a huge step in becoming a more recognisable and important actor in international environmental law, especially in the field of the protection of biodiversity and ecosystem services. Germany is a State party to many important international environmental conventions, e.g. the CBD,97 the CMS,98 the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),99 and the Nature Convention on the Conservation of European Wildlife and Natural Habitats.100 Yet the mere conclusion of international environmental agreements does not necessarily lead to effective protection of biodiversity and ecosystem services. International law needs to be incorporated into national politics and national law. The IPBES addresses exactly this point. By hosting the IPBES and throwing its financial support behind it, Germany continues to increase its contribution to the protection of global biodiversity. How big this contribution really is depends on the effectiveness of the IPBES. The necessity of the work of the IPBES was proven by the 2009 gap-analysis.101 Its real benefits will only be shown in time. Currently, the IPBES seems to present an effective mechanism to strengthen the science-policy 95

Ibid., 57.

96

See supra, note 1, para. 30.

97

See supra, note 5.

98

See supra, note 84.

Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, UNTS 993, 243. 99

100 Nature Convention on the Conservation of European Wildlife and Natural habitats, 19 September 1979, UNTS 1284, 209. 101

See supra, note 18.

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interface. The plenary is open to all States and the prerequisites of becoming an observer are not overly demanding, leaving it possible to incorporate different meanings, scientific analysis and results into the responses to the questions handed down by domestic legislators. The IPBES could be improved by extending the number of participating States, as there are currently only 107 Member States of the platform.102 The first plenary meeting of the IPBES in Bonn took place in January 2013.103 Amongst other things, officers of the Bureau of the Plenary were elected,104 the plenary decided on the rules of procedure for the Plenary and the Platform105 and requested UNEP, the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the Food and Agriculture Organisation (FAO) and the United Nations Development Program (UNDP) to constitute an institutional connection by concluding a partnership agreement.106 It further decided on the procedure for receiving and prioritising requests put to the platform.107 It seems that IPBES and the International Community are on the right path to developing a more effective governance of biodiversity and ecosystem services. But the success of IPBES depends on different factors, e.g. if the acceptance of States takes place. The work of IPBES through the forthcoming years will allow a better evaluation of the chances of success of the IPBES to be made and following this an evaluation of the new significant German contribution in protecting world’s biodiversity and ecosystem services.

102 IPBES, List of Member States, available at: http://www.ipbes.net/about-ipbes/members-of-theplatform.html (accessed on 7 March 2013). 103

See supra, note 37.

104

Ibid., para. 9.

105

Ibid., Annex I.

106

Ibid., Annex V, para. 2.

107

Ibid., Annex IV.

Upholding Data Protection Law Against Multinational Corporations: German Administrative Measures Relating to Facebook NICHOLAS ENGLISH( AND FELIX BIEKER((

Introduction: The astounding rate at which technology has developed to become a cornerstone of modern communication presents a multiplicity of legal problems for legislators. Technology by its very nature has to evolve to changing environments, or becomes obsolete. The exponential rise of social networks is no exception, and as networks further explore ways to increase banks of user data and utilise the information collected to their advantage, questions regarding data protection remain largely unanswered. New technologies, such as facial recognition software and social plug-ins, have opened up innovative ways of collecting data which were previously inconceivable and therefore less likely to be covered by legislative schemes. As the volume of Facebook users in Germany creeps ever closer to saturation point, especially amongst the young,1 the crescendo of discussion surrounding data protection is becoming ever louder. Prevalent use of social networks by at-risk groups such as minors makes the debate even more pertinent.2 Given the role of Germany as an innovator of data protection law,3 it is unsurprising to see it at the forefront of this debate. (

Kiel. ((

Research Associate at the Walther-Schücking-Institute for International Law at the University of LL.M. Candidate at the University of Edinburgh.

In 2011, just over 2/3 of the German population between the ages of twelve and 29 considered themselves to be users of Facebook, see Walter Kingler/Andreas Vlašić/Frank Widmayer, Communitys bei Zwölf- bis 29-Jährigen: Private Kommunikation und öffentliche Interaktion, Media Perspektiven 15 (2012), 433, 436. 1

The age group 12–15 is much more likely than any other group to consider personal data shared on social media to be safe. See ibid., 438. 2

3 According to Thilo Weichert, experiences with the Nazi regime and the Stasi in the German Democratic Republic have made Germany particularly sensitive to the gathering of data. This led to the

588 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

Multinational companies operating social networks claim that the internet is boundary-less and that they are therefore not to be subjected to national law. Indeed, as will be shown, Facebook has gone out of its way to avoid German domestic law, which it sees as overly restrictive to its aims, preferring instead the domestic law of other European Union (EU) Member States, specifically the Republic of Ireland. This article discusses the application of German and EU law to Facebook and the steps taken by various influential German regional Commissioners for Data Protection and Freedom of Information (Beauftragte für Datenschutz und Informationsfreiheit) to combat those of Facebook’s newest developments – i.e. the facial recognition feature and the use of web-cookies to track users’ behaviour across the web – considered to infringe upon data protection laws. It will evaluate these and measures that German authorities have taken against those under their jurisdiction who have employed technology offered by Facebook. Application of German Data Protection Law: As a preliminary question it must first be established whether German data protection law is generally applicable vis-àvis a globally operating company such as Facebook. In order to trigger the application of national law, a nexus that links the situation to the regulating State is required. This nexus is usually established via the principle of territorial jurisdiction, assuming that States may regulate events which occur on their territory.4 The Federal Data Protection Act (FDPA) (Bundesdatenschutzgesetz)5 is based on this principle. Under Section 1 (2)(3) of the FDPA, it links responsibility to the data controller (verantwortliche Stelle), which is defined by Section 3 (7) of the FDPA as the person or body which gathers, processes or uses personal data or employs a third party to carry out these tasks on its behalf in Germany. It therefore applies to any company that is established in Germany.6

world’s first data protection law being passed in the German State (Land) of Hessen in 1970. See David Meyer, The Schleswig-Holstein Question, BBC News, 10 September 2011, available at: http://www. bbc.co.uk/news/technology-14859813 (accessed on 30 January 2013). 4

James Crawford, Principles of Public International Law (8th ed. 2012), 457 et seq.

Federal Data Protection Act (Bundesdatenschutzgesetz), 14 January 2003, BGBl. I, 66, as amended on 14 August 2009, BGBl. I, 2814. 5

6 Florian Jotzo, Gilt deutsches Datenschutzrecht auch für Google, Facebook & Co. bei grenzüberschreitendem Datenverkehr?, Multimedia und Recht 12 (2009), 232, 233.

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To implement the collision rules of Article 4 of Directive 46/95/EC7 on the application of national law to international settings, Section 1 (5) of the FDPA was introduced in 2001.8 Instead of the territorial principle, the principle of establishment (Sitzprinzip) is applied, meaning that the application of national law depends on where the controller has its headquarters or even a local branch.9 Where a controller is established in another Member State of the European Union and collects, processes or uses data in Germany without a local branch, the FDPA is inapplicable according to Section 1 (5)(1) of the FDPA. This may lead to the rather unique situation of the competent German administrative body having to apply another Member State’s national law on data protection under Section 38 of the FDPA.10 However, where the controller is established outside the EU or the European Economic Area, the application of national law is linked to the location of the equipment used to collect, process or use data according to Section 1 (5)(1) of the FDPA. In order to prevent the ostensible universal application of German law – which in cases like these would not be reconcilable with standards of international law – the application of Section 1 (5)(2) of the FDPA has to be restricted to cases where a provider specifically addresses German users with its services.11 This can be construed from the choice of language of the service or the use of a German top-level domain (.de).12 In the case of Facebook it is contested which entity is to be seen as the collector. In Section 19 (1) of its Statement of Rights and Responsibilities,13 Facebook states that the agreement on the website’s usage for users outside the US or Canada is concluded 7 Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995, L 281, 31–50. 8

Jotzo (note 6), 233.

Wolfgang Däubler/Thomas Klebe/Peter Wedde/Thilo Weichert, Bundesdatenschutzgesetz: Kompaktkommentar zum BDSG und anderen Gesetzen, Section 1, para. 16. 9

10

Ibid.

Moritz Karg/Sven Thomsen, Tracking und Analyse durch Facebook – Das Ende der Unschuld, Datenschutz und Datensicherheit 36 (2012), 729, 734. 11

12 Thomas Stadler, Verstoßen Facebook und Google Plus gegen deutsches Datenschutzrecht?, Zeitschrift für Datenschutz 1 (2) (2011), 57, 58. 13 Facebook, Statement of Rights and Responsibilities, available at: http://www.facebook.com/legal/ terms (accessed on 30 January 2013).

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with Facebook Ireland Ltd. As a result, Facebook Ireland Ltd. argues that it, rather than Facebook Inc., is the data controller.14 Therefore, German authorities would be prevented from applying the FDPA if Facebook Ireland Ltd. was the data collector. This argumentation was followed by the Schleswig Administrative Court (Verwaltungsgericht Schleswig) in proceedings for interim measures initiated by Facebook concerning its policy of forcing users to disclose their real names, as opposed to pseudonyms, in their profiles.15 The Court decided that the application of German data protection law was inappropriate due to provisions to the contrary in the Facebook terms of use, according to which Facebook Ireland Ltd. was to be seen as the sole data controller.16 It concluded that for the purposes of Section 1 (5)(2) of the FDPA and the managing of user profiles, only Irish data protection law could be applied, as Facebook Ltd. had to be regarded as a branch under Recital 19 of Directive 95/46/EC.17 The decision is not yet final: the Office of Schleswig-Holstein’s Data Protection Commissioner (Unabhängiges Landeszentrum für Datenschutz) announced its intention to defend its position in an appeal to the Schleswig-Holstein Higher Administrative Court (Oberverwaltungsgericht Schleswig-Holstein).18 As at this stage it concerns interim measures, proceedings on the merits will have to be awaited. These, however may even necessitate a reference to the Court of Justice of the European Union according to Article 267 of the Treaty on the Functioning of the European Union (TFEU),19 as an interpretation of Directive 95/46/EC is required. It may well therefore be the case that the judgment is eventually overturned on appeal. Meanwhile, Facebook’s position has been challenged by, inter alia, Johannes 14 Letter from Facebook Ireland Ltd. to the Schleswig-Holstein Commissioner for Data Protection of 16 September 2011, Umdruck schleswig-holsteinischer Landtag 17/2781, 2, available at: http:// www.landtag.ltsh.de/infothek/wahl17/umdrucke/2700/umdruck-17-2781.pdf (accessed on 30 January 2013). 15 Schleswig Administrative Court (Verwaltungsgericht Schleswig), Decisions of 14 February 2013, 8 B 60/12 and 8 B 61/12. 16

Ibid., 3 et seq.

17

Ibid., 7 et seq.

Office of the Schleswig-Holstein Commissioner for Data Protection and Freedom of Information, Verwaltungsgericht erteilt Facebook Freifahrtsschein, Press release of 15 February 2013, available at: https://www.datenschutzzentrum.de/presse/20130215-verwaltungsgericht-facebook.htm (accessed on 30 January 2013). 18

19 The Treaty on the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47 (Consolidated Version) (TFEU).

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Caspar, the Hamburg Commissioner for Data Protection and Freedom of Information (Landesbeauftragter für Datenschutz und Informationsfreiheit). In an administrative order, the Commissioner held Facebook Inc. to be the controller in respect to its facial recognition feature, and by allegory all other features concerning data protection, as it was solely responsible for the collection of the relevant data. This responsibility, conferred by law, could not simply be relocated by means of an agreement between Facebook Inc. and Facebook Ireland Ltd., which did not confer any control over that data to the latter.20 The decisions of the Schleswig Administrative Court do not apply to this order, as the courts of the federal state (Land) of Schleswig-Holstein do not have jurisdiction over the federal state of Hamburg. Caspar then relied on Section 1 (5)(2) of the FDPA to apply German law. Concerning the tracking of users by use of web-cookies it is argued that this provision has to be interpreted from a normative and a technical perspective.21 According to the Article 29 Data Protection Working Party, an independent advisory body of the EU set up under Article 29 of Directive 46/95/ EC, a collection of data may be conducted through the use of cookies or Java scripts on a user’s computer.22 Cookies are codes stored on a user’s computer which provide a unique signature and thus allow the identification of the user.23 Facebook employs cookies to store users’ sessions on the website24 and utilises Java scripts to enable users to upload their pictures.25 As the users’ computers are located in Germany, the necessary nexus is established. Additionally, this collection of data is further linked to Germany, as users within its territory are automatically re-directed to the website www.facebook.de, which is also in German. Therefore, in the cases concerned, German data protection law is generally applicable vis-à-vis Facebook.

Hamburg Commissioner for Data Protection and Freedom of Information (Der Hamburgische Beauftragte für Datenschutz und Informationsfreiheit), Administrative Order of 21 September 2012, 9–12 and 16 et seq. 20

21

Jotzo (note 6), 236 et seq.

Article 29 Data Protection Working Party, Opinion 8/2010 on applicable law of 16 December 2010, 0836-02/10/EN, WP 179, 21. 22

23 Stephan Ott, Datenschutzrechtliche Zulässigkeit von Webtracking?, Kommunikation und Recht 12 (5) (2009), 308, 309. 24

Karg/Thomsen (note 11), 730 et seq.

Moritz Karg, Biometrische Verfahren zur Gesichtserkennung, Humboldt Forum Recht 17 (2012), 120, 126. 25

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Facial Recognition Technology: One new technological development which raises data protection issues has come in the shape of analytical facial recognition technology aimed at automatically tagging photos. Photos uploaded to Facebook are analysed by this technology and a biometric template of the user is created. If the template matches when it is compared to pictures newly uploaded by friends, Facebook will automatically suggest that the user be tagged in the picture. Hence, the technology is known as ‘tag suggest’, a function which had been available in Germany since at least June 2011.26 The function proved controversial in Germany and throughout Europe.27 The aforementioned Article 29 Working Party published an opinion casting doubt on the legality of the use of facial recognition software without user consent and provided recommendations to amend this.28 The Irish Data Protection Commissioner Billy Hawkes gave similar recommendations in an audit of Facebook, including the instruction that any data collected with the feature should be deleted, with threat of a € 100,000 fine.29 Outside of the EU, the Norwegian Data Protection Commissioner Bjørn Erik Thon announced a similar investigation.30 Johannes Caspar was at the forefront of the criticism levelled against facial recognition technology. He repeatedly accused Facebook of failing to uphold European and domestic standards of data protection law, calling upon it to disable the feature.31 26 Hamburg Commissioner for Data Protection and Freedom of Information, Administrative Order of 21 September 2012 (note 20), 6. A more comprehensive description of the technological process of facial recognition can also be found here.

Bloomberg News, Facebook ‘Face Recognition’ Feature Draws Privacy Scrutiny, New York Times, 9 June 2011, 10. 27

Article 29 Data Protection Working Party, Opinion 02/2012 on facial recognition in online and mobile services, 22 March 2012, 00727/12/EN WP-192, 7–9, available at: http://ec.europa.eu/justice/ data-protection/article-29/documentation/opinion-recommendation/files/2012/wp192_en.pdf (accessed on 30 January 2013). 28

(Irish) Data Protection Commissioner, Facebook Ireland Ltd: Report of Re-Audit, 21 September 2012, 36–39, available at: http://dataprotection.ie/documents/press/Facebook_Ireland_Audit_Review_ Report_21_Sept_2012.pdf (accessed on 30 January 2013). 29

Stephanie Bodoni, Facebook Faces Norway Probe Over Facial Recognition Tags, Bloomberg Businessweek, 2 August 2012, available at: http://www.businessweek.com/news/2012-08-02/facebookfaces-norway-probe-over-facial-recognition-photo-tags (accessed on 30 January 2013). 30

31 Kevin J. O’Brien, Germany Investigates Facebook Tagging, New York Times, 4 August 2011, 6; Kevin J. O’Brien, Germany Reopens Privacy Inquiry into Facebook’s Archiving of User Photos, New York Times, 16 August 2012, 6.

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When these calls went unheeded, Caspar filed an administrative order (Anordnung) to this effect32 in support of his Irish colleague. The order put forward that the use of facial recognition technology was illegal under German and EU law as it negated the need for user consent.33 Section 4 (1) of the FDPA allows the collection, processing and use of personal data only in cases where the affected person has given consent or as foreseen in the FDPA or other relevant legislative provisions. The FDPA provides some exceptions, whereby consent may be abrogated inter alia if this is necessary for the foundation, execution or termination of contractual relations pursuant to Section 28 (1)(1) of the FDPA. The administrative order outlined that the first exception did not apply because the facial recognition was not necessary for the user contract with Facebook.34 Consent may also be abrogated where it is necessary to protect the legitimate interests of the party holding the data pursuant to Section 28 (1)(2) of the FDPA or those of an interested third party pursuant to Section 28 (2)(2)(a) of the FDPA where there is no reason that the interests of the subject should prevail. The administrative order went on to outline that the second exception did not apply either because Facebook users have overriding interests to protection of their personal information.35 In addition, pursuant to Section 4a of the FDPA, consent can only be given in an informed, deliberate and voluntary manner.36 In Caspar’s argumentation, there was no consent given as Facebook unilaterally implemented the technology without any official announcement, meaning the average user would have been unaware of the change, negating user consent entirely.37 The German domestic provision is a transposition of Article 7 (a) of Directive 95/ 46/EG, which provides that personal data may only be processed if the subject “has 32 Hamburg Commissioner for Data Protection and Freedom of Information, Administrative Order of 21 September 2012 (note 20). 33

Ibid., 21–26.

34

Ibid., 22.

35

Ibid., 22–23.

Peter Gola/Christoph Klug/Rudolf Schomerus/Barbara Körffer, BDSG Bundesdatenschutzgesetz Kommentar, Section 4a, paras. 19 and 25. 36

37 Hamburg Commissioner for Data Protection and Freedom of Information, Administrative Order of 21 September 2012 (note 20), 24.

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unambiguously given his consent.” The Article 29 Working Party has stated that this means there must be no doubt as to the user’s intention, and that acceptance by silence or opt-out policies do not provide evidence of unambiguously given consent.38 The EU standards concerning facial recognition were subsequently outlined by the Article 29 Working Party, stipulating that informed consent is required before commencing processing of digital images for facial recognition.39 According to Caspar, the opt-out nature of Facebook’s face recognition technology therefore represented a violation of EU law in addition to German domestic law.40 Under the weight of the Irish audit and the German administrative order, Facebook decided to end its use of facial recognition software in Europe.41 This conclusion could represent an increasing trend by Facebook towards respecting data protection law and the German regional data protection commissioners. However, such a conclusion may seem premature given Facebook’s continued flaunting of data protection law; indeed in this case it may be more likely that Facebook simply crumbled under the multipronged assault from the EU and the various Member States. Web Tracking: Another controversial technology applied by Facebook is the use of cookies to track users across the internet after they log out.42 This is achieved by use of social plug-ins on third-party websites.43 Website hosts frequently embed ‘like buttons’ on their sites, which are codes provided by Facebook that recognise the cookie on the user’s computer, thus identifying users even when they are not logged into Facebook.44

38 Article 29 Data Protection Working Party, Opinion 15/2011 on the definition of consent, 13 July 2011, 01197/11/EN WP 187, 21–24. 39 Article 29 Data Protection Working Party, Opinion 02/2012 on facial recognition in online and mobile services (note 28), 5. 40 Hamburg Commissioner for Data Protection and Freedom of Information, Administrative Order of 21 September 2012 (note 20), 25.

Tim Bradshaw, Facebook ends facial recognition in Europe, Financial Times, 21 September 2012, available at: http://www.ft.com/intl/cms/s/0/fa9c4af8-03fc-11e2-b91b-00144feabdc0.html#axzz2Id DDqmkX (accessed on 30 January 2013). 41

42 The same technique is applied by Google for its Analytics service, for further analysis, see Ott (note 10). 43

Karg/Thomsen (note 11), 730 et seq.

Hamburger Datenschutzbeauftragter: Facebook erstellt Trackingprofile der Nutzer, Zeitschrift für Datenschutz Aktuell 1 (2011), 71. 44

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Caspar found that the reasons provided by Facebook to justify the use of cookies were largely invalid.45 A legal examination carried out by the Office of Schleswig-Holstein’s Data Protection Commissioner (Unabhängiges Landeszentrum für Datenschutz SchleswigHolstein) revealed that Facebook used the data collected to analyse users’ behaviour on the internet.46 This detailed data was in return offered to the website hosts to enable them to learn about users and their demographics, the compiling and use of which could not be prevented by users.47 As these collections of data include the names of users, they are related to individuals under the meaning of Section 3 (1) of the FDPA. Therefore, according to Section 12 (1) of the German Tele-media Act (TA) (Telemediengesetz),48 users must declare consent to their data being used unless another legal provision allows it. As has been mentioned above, consent must be declared unambiguously, as provided by Directive 46/95/EC. Due to Facebook’s abstruse and vague data usage policy (Datenverwendungsrichtlinie),49 which states that cookies are used to provide certain products and services, effective consent based on an informed decision by the user is impossible.50 Nevertheless, usage of the collected data may be permissible under Section 15 (3) of the TA, which allows data collection for market analysis as long as the user profiles are collated pseudonymously. As the collection of user data is linked to the user’s Facebook profile, he or she is directly and individually identifiable.51 Thus, the collection of data and analysis of user behaviour by Facebook is incompatible with the TA. Johannes Caspar has entered into a dialogue with Facebook on this practice; 45 Audit Report of the Hamburg Commissioner for Data Protection and Freedom of Information, 2 November 2011, 1, available at: http://www.datenschutz-hamburg.de/fileadmin/user_upload/ documents/Pruefbericht_Facebook-Cookies.pdf, (accessed on 30 January 2013). 46 Office of the Schleswig-Holstein Data Protection Commissioner, Datenschutzrechtliche Bewertung der Reichweitenanalyse durch Facebook, 19 August 2011, available at: https://www.datenschutzzentrum. de/facebook/facebook-ap-20110819.pdf (accessed on 30 January 2013). 47

Karg/Thomsen (note 11), 731.

Tele-media Act (Telemediengesetz), 26 February 2007, BGBl. I, 179, as amended on 31 May 2010, BGBl. I, 692. 48

Facebook Data Usage Policy, available at: http://www.facebook.com/about/privacy/cookies (accessed on 30 January 2013). 49

50

Karg/Thomsen (note 11), 735.

51

Ibid., 735 et seq.

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however, the discussion has been stalled since 2011.52 Meanwhile, Facebook is developing a new technology to track users’ behaviour across various devices such as personal computers, tablet computers and mobile phones without the use of cookies.53 Responsibility of Third Party Website Administrators: So what of the responsibilities of those hosting websites containing Facebook’s social plug-ins such as the ‘like button’? The Office of Schleswig-Holstein’s Data Protection Commissioner has stated in a legal examination that those websites hosting social plug-ins are responsible, along with Facebook, for data collected,54 meaning they could potentially violate the need for informed consent pursuant to Section 12 (1) of the TA. The legal examination went on to advise third party websites in Schleswig-Holstein that they had to avoid the use of Facebook plug-ins with the portent of summary proceedings.55 This conclusion is questionable. As the data collected relates to individuals in the sense of Section 3 (1) of the FDPA, it falls under the FDPA’s scope of application. Section 3 (7) of the FDPA prescribes that responsibility lies with the person or authority which gathers, processes or uses personal data for itself or on behalf of others. This is a transposition of Article 2 (d) of Directive 95/46/EG, which is slightly more illuminative as to the role of the controller of the data being the party “which alone or jointly with others determines the purposes and means of the processing of personal data.” It has been argued that, because the use of plug-ins enables Facebook to compile data, third party websites are to be held responsible for data because they are not ‘third parties’ in the sense of

See Watchblog of the Hamburg Commissioner for Data Protection and Freedom of Information on Facebook Cookies, available at: http://www.datenschutz-hamburg.de/news/detail/article/watchblogfacebook-cookies.html?tx_ttnews%5BbackPid%5D=188&cHash=92bf45d105fd1f6b3d94 e20222da3c6e (accessed on 30 January 2013). For an examination of Facebook’s strategy in responding to such dialogue and accusations of violations of data protection law, see Thilo Weichert, Datenschutzverstoß als Geschäftsmodell – der Fall Facebook, Datenschutz und Datensicherheit 36 (2012), 716. 52

53 Heise online, Facebook und Online-Werbung: Neue User-Identifizierung statt Tracking-Cookies, 25 January 2013, available at: http://www.heise.de/newsticker/meldung/Facebook-und-OnlineWerbung-Neue-User-Identifizierung-statt-Tracking-Cookies-1791245.html (accessed on 30 January 2013). 54 Office of the Schleswig-Holstein Data Protection Commissioner, Datenschutzrechtliche Bewertung der Reichweitenanalyse durch Facebook (note 46), 17–18. 55

Ibid., 25.

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Section 11 in conjunction with Section 3 (8) of the FDPA (and Article 2 (f) of Directive 95/46/EG), and thus cannot be resolved of responsibility.56 However, the prerequisites in Section 3 (7) of the FDPA are clear: the party must gather, process or use personal data to be held responsible for it. Sites hosting plug-ins merely create direct communication between the user and Facebook, meaning no actual data is gathered by the third party. Given the fact that third party websites never have the possibility of coming into contact with the personal data and have no influence on its collection, they cannot be said to be gathering data on behalf of Facebook.57 The purpose and the means of gathering and processing the personal data are entirely in the hands of Facebook, leaving it the sole controller in these circumstances. Voigt and Alich further argue that transmission of data is justified regardless, as it is necessary in the setting of the modern internet according to a fairly liberal interpretation of Section 15 (1) of the TA.58 Additionally they state, in contrary to the findings of the Office of Schleswig-Holstein’s Data Protection Commissioner, that a constructive form of consent may be evidenced by, for example, a button which necessitates a double mouse click.59 Using this method, users would activate the social plug-in by clicking the icon twice, thus showing an active decision to give consent. It must be pointed out that the legal examination carried out by the Office of SchleswigHolstein’s Data Protection Commissioner is not a judgment: legal certainty in this area is still somewhat lacking. Schleswig-Holstein’s Chamber of Industry and Commerce (Industrie- und Handelskammer Schleswig-Holstein) has started an action before the Schleswig Administrative Court,60 which will hopefully shed more certainty on the matter. As stated above, the only jurisprudence yet to elucidate on these matters at the time of writing is still in the appeal phase, meaning that the tentative 56 German Federal Parliament (Deutscher Bundestag), Die Verletzung datenschutzrechtlicher Bestimmungen durch sogenannte Facebook Fanpages und Social-Plugins, 7 October 2011, 306/11, 8; Stefan Ernst, Social Plugins: Der “Like Button” als datenrechtschutzliches Problem, Neue Juristische Online Zeitschrift (NJOZ) 10 (2010), 1917, 1918.

Paul Voigt/Stefan Alich, Facebook-Like-Button und Co. – Datenschutzrechtliche Verantwortlichkeit der Webseitenbetreiber, Neue Juristische Wochenschrift (NJW) 64 (2011), 3541, 3543. 57

58

Ibid., 3543.

59

Ibid., 3543–3544.

Bastian Modrow, Weichert zieht Facebook vor Gericht, KN-online, 5 November 2011, available at: http://www.kn-online.de/Schleswig-Holstein/Wirtschaft/Weichert-zieht-Facebook-vor-Gericht (accessed on 30 January 2013). 60

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conclusions of the Schleswig Administrative Court could, and indeed arguably should, be overturned at the next instance. Additionally, it only relates to the use of users’ real names for registration on Facebook. The only conclusion that can be drawn at the time of writing is that legal certainty on these issues is still in the balance. Conclusion: These last two arguments present quite neatly the plethora of problems facing the various regional Data Protection Commissioners and data protection proponents throughout Europe. Particularly narrow interpretations of provisions may not be suited to the vast leaps that are continuously seen in internet technology. EU Directive 95/46/EG came into force in 1995: comparing it to its 1995 counterpart, the internet of 2013 and its influence on every-day life is entirely unrecognisable. Imposing an obligation on third party websites to include a lengthy explanation as to the data protection consequences of every mouse click seems restrictive, inconvenient and over-protective, as well as incongruent with the way that the internet is used. Yet no protection at all flies in the face of Germany’s, and Europe’s, strong tradition of upholding protection of data. In order to remedy this situation, on 25 January 2012 the European Commission proposed the General Data Protection Regulation (GDPR),61 which is based on the new Article 16 (2) of the TFEU, to adopt legislation fit to meet these technological changes. Aside from a more uniform implementation and increased legal certainty concerning online activities, in the provisional Article 17 of the GDPR the Commission has proposed the rights of individuals to be forgotten and of having data erased by controllers. This draft has been submitted to the European Parliament and is currently being discussed in the European Council.62 It has been shown that German data protection law applies to Facebook, a conclusion not likely to be seen favourably by Facebook due to the FDPA’s strictness when compared to that of other jurisdictions. Because of the effect of this and EU law on Facebook, the stringent way in which the various Data Protection Commissioners go about their jobs63 can have an effect on Facebook’s data protection policy not only in European Commission, Proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data, 25 January 2012, COM (2012) 11 final. 61

62 Council of the European Union, Press Release on the 3207th Council meeting of Justice and Home Affairs, 6 December 2012, PRES/12/509, available at: http://europa.eu/rapid/press-release_ PRES-12-509_en.htm?locale=en (accessed on 30 January 2013).

Thilo Weichert, for example, has been branded a ‘fundamentalist’ for his views on data protection law. See Konrad Lischka, Facebook Debatte: Warum wir Datenschutz-Fundamentalisten brauchen, 63

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Germany but in Europe as a whole, if not globally. Such a success was arguably shown in relation to facial recognition technology. Yet even that comes with a caveat: the whole process was a conflict of attrition, only resulting in discontinuation of use due to the sheer weight of opposition. When debate touches on those subjects more closely linked to Facebook’s business model, e.g. the targeting of advertisement which can be more effectively achieved through the use of social plug-ins, it is much more reticent in its adherence to EU and domestic law. Finally, while the important work of the Offices of Data Protection has been illuminative on this subject, it cannot take the place of the domestic and European courts, which, as the ultimate arbiters of legal certainty, need to interpret the relevant provisions accordingly in the coming years.

Spiegel-Online, 24 August 2011, available at: http://www.spiegel.de/netzwelt/netzpolitik/facebookdebatte-warum-wir-datenschutz-fundamentalisten-brauchen-a-781873.html (accessed on 30 January 2013).

European Commission v. Germany: The Data Retention Directive – Legal or Political Issue? CHRISTOPH SEIDLER(

Introduction: Since July 2012, the European Court of Justice (ECJ) has been dealing with an infringement procedure according to Article 260 (3) of the Treaty of the Functioning of the European Union (TFEU),1 lodged by the European Commission against Germany. The Commission claims that Germany has failed to implement the Data Retention Directive2 and has requested that the ECJ impose a penalty payment in the amount of € 315,035.54 per day.3 The simple fact that the Commission has initiated an infringement procedure is not remarkable in itself. At the end of 2010, the number of active infringement procedures by the Commission topped 2,000; the amount of procedures initiated against Germany was not notably high or low in comparison to other Member States.4 The implementation of the Data Retention Directive, however, has shown to be controversial not only in Germany. Infringement Procedures have also been initiated, e.g., against Austria, Sweden and Belgium. In addition, Member States’ laws implementing the Directive have been annulled by national courts in Romania, Germany and

(

Law Clerk at the Hanseatic Higher Regional Court, Hamburg.

1

Treaty of the Functioning of the European Union, 30 March 2010, OJ 2010 C 83, 47.

2

Directive 2006/24/EC of 15 March 2006, OJ 2006 L 105, 54.

Commission v. Germany, Case C-329/12. Further information on the state of the Case, as well as the wording of the action, are available via: http://curia.europa.eu/jcms/jcms/j_6/ (accessed on 27 November 2012). 3

4 European Commission, 28th Annual Report on Monitoring the Application of EU Law, 29 September 2011, COM(2011)588 final, 3; for detailed statistics see ibid., Annex II, 13 et seq.

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the Czech Republic.5 These facts indicate that the issue of data retention is controversial both legally and politically. One the one hand, more and more politicians argue that it is necessary to monitor communication via telephone and the internet in order to guarantee effective prosecution of organised crime and terrorism. On the other hand, a growing number of citizens have challenged the notion that State authorities should have access to more personal data than necessary. The protection of personal data has become a highly sensitive human rights topic. When the Data Retention Directive was created, the competent organs had to strike a balance between these views, providing sufficient measures for effective prosecution of crimes while concurrently reducing infringements of human rights to a necessary minimum. This paper will not seek to find a solution to this controversy. Instead it will explore the German measures with regard to implementation, why there have not been any efforts recently, and the probability of the German national authorities bringing into force the provisions necessary to comply with the Directive in future. Origin of the Directive: While national measures concerning the storage and evaluation of personal data have existed for decades, the topic came up on a European level only in reaction to the terrorist attacks of 11 September 2001. In a meeting of the Council for Justice and Home Affairs on 20 September 2001, a request to the European Commission to elaborate investigation methods against criminal acts “involving the use of electronic communication systems”6 was agreed. Notably, the conflict between the law enforcement authorities’ needs to gain access to data and the protection of personal data had already been calculated at the beginning of the development.7 The first significant step with explicit view to the retention of data, however, was a reaction to another terrorist attack, namely in Madrid in 2004. On 25 March 2004, the European Council instructed the Council in its “Declaration on Combating Ter5 EU Press Office, Frequently Asked Questions: Evaluation report of the Data Retention Directive, 18 April 2011, MEMO/11/251, available at: http://europa.eu/rapid/press-release_MEMO-11-251_en. htm?locale=en (accessed on 27 November 2012). 6 Conclusions adopted by the Council (Justice and Home Affairs), Brussels, 20 September 2001, Council Doc. SN/3926/6/01 REV 6, para. 4, available at: http://www.statewatch.org/news/2001/sep/ 03926-r6.pdf (accessed on 27 November 2012; unofficial source). 7

Ibid.

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rorism” to propose measures on the retention of communication traffic data.8 The subsequent initiative of the Council, though, did not bring about the desired consequences,9 as a result of which the Commission then developed a proposal for a directive. The Council adopted the Data Retention Directive with the required majority; only Ireland and Slovakia voted against it.10 After the European Parliament had adopted the Directive, it entered into force and obliged the Member States to implement it before the deadline of 15 September 2007. The Elements of the Directive: According to Article 3 of the Directive, all Member States have to ensure that providers of communication services retain data which are generated in the process of supplying the communication services. This does not mean the State itself has to collect the data, but it has to oblige the providers to make sure the required data are retained. Article 5 of the Directive elaborates on the categories of data to be retained: most important are the ‘traffic data’, e.g. the information concerning when, for how long and by whom a telephone number has been called, or which IP addresses have used the internet for visiting websites or writing e-mails. To be clear: the obligation to retain data is not dependent on particular circumstances. Specifically, the retention does not require a suspicion of committed crime; this means every phone call in the whole European Union is affected, as is the use of the internet for any purpose (this is implied in the German term Vorratsdatenspeicherung, which is not sufficiently translated by the term ‘data retention’). However, as Article 5 (2) of the Directive emphasises, the content of the communication does not fall within the scope of the Directive.11 As mentioned in Article 6 of the Directive, the data have to be retained for a period between six months and two years. Within this timeframe, the question of how long the data are retained is subject to the Member States’ margins of discretion. During this period, according to Article 4 of the Directive, Member States have to ensure they have access to the retained data. This access must be limited to ‘specific 8 European Council, Declaration on Combating Terrorism, 25 March 2012, 4, available at: http:// www.consilium.europa.eu/uedocs/cmsUpload/DECL-25.3.pdf (accessed on 27 November 2012).

See Sabine Leutheuser-Schnarrenberger, Vorratsdatenspeicherung – Ein vorprogrammierter Verfassungskonflikt, Zeitschrift für Rechtspolitik 2007, 9, 9. 9

Theodore Konstadinides, Destroying Democracy on the Ground of Defending It? The Data Retention Directive, the Surveillance State and Our Constitutional Ecosystem, European Law Review 36 (2011), 722, 727. 10

11

Cf. Preambular para. (13) of the Directive.

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cases’, and the requirements of necessity and proportionality must be fulfilled. However, Article 4 does not specify the cases in which national authorities may make use of the data.12 Therefore, this question is left to the choice of the national authorities, as explained in Article 288 (3) of the TFEU. The German Law Implementing the Directive: While the implementation of the Directive in Germany is not showing progress at the moment, the Federal Republic did initially implement the Directive into national law. The Act on Modification of Communication Observation and other Hidden Investigation Measures13 created an obligation to retain the relevant data for the minimum required period of six months.14 In addition, it established conditions under which national authorities would have access to the data for the purposes of criminal investigation15 or prevention of danger to public safety.16 After the national law entered into force, the controversy on the issue became visible. Critics organised themselves in a working group (Arbeitskreis Vorratsdatenspeicherung) and planned a mass complaint against the act. As a result, more than 34,000 citizens filed individual complaints (Individualbeschwerde) at the Federal Constitutional Court (FCC) (Bundesverfassungsgericht).17 They succeeded when the result of the proceedings was a judgement of the Court in 2010 declaring the national law incompatible with the German Basic Law (Grundgesetz), namely the protection of privacy of correspondence and telecommunication contained in Article 10 (1) of the Basic Law.18 It must be noted that the Preamble of the Directive, especially in paras. (7)–(10), emphasises the use of data retention for the prosecution of organised crime and terrorism. However, since Art. 4 of the Directive does not contain such a reference, the Directive cannot be interpreted as to limit access to such cases. 12

Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen, 21 December 2007, BGBl. I, 3198. 13

14

Ibid., 3207.

15

Ibid., 3201 et seq.

16

Ibid., 3208.

See Federal Constitutional Court (FCC) (Bundesverfassungsgericht), 1 BvR 256/08, 263/08 and 586/08 of 2 March 2010 (Vorratsdatenspeicherung), para. 89, available at: http://www.bverfg.de/ entscheidungen/rs20100302_1bvr025608.html (accessed on 27 November 2012); for an English summary see id., Press release No. 11/2010 of 2 March 2010, available at: http://www.bverfg.de/pressemitteilungen/ bvg10-011en.html (accessed on 27 November 2012). 17

18

Ibid., paras. 269 et seq.

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It must be stressed, however, that the FCC claimed not to have examined the validity of the Directive itself. The Court therefore found that a referral to the European Court of Justice according to Article 267 of the TEU was unnecessary.19 In addition, it explicitly stated that a complaint concerning the compatibility of the Directive itself with German national law would have been inadmissible. However, since the claimant argued that the German margin of discretion for the implementation was not executed in accordance with the Basic Law, the complaints were declared admissible.20 This ruling goes back to the FCC’s Solange jurisprudence and its later application according to the Bananenmarkt judgement. According to this, an individual complaint to the FCC is inadmissible if the subject of the complaint derives from EU law (especially a directive or a regulation). The FCC will only examine EU law if the complainant shows that the protection of human rights is not ensured at the EU level in general.21 If the complainant claims that his rights are violated by a law implementing a directive, he must argue that the violation results not from the directive itself, but from the German law implementing the directive.22 However, it must be noted that the FCC did in fact examine the directive’s compatibility with the Basic Law: it explicitly stated that the binding parts of the directive could be implemented in accordance with the Basic Law. In reaching this conclusion, it extensively elaborated on a possible violation of the Basic Law by the obligation to retain data for six months, while giving guidance as to the conditions under which access to the retained data could be granted.23 This indicates that the FCC might allow itself to examine EU law as long as it does not come to the conclusion that there is a collision of EU and national law.24

19

Ibid., paras. 185–186.

20

Ibid., paras. 181–182.

21

FCC, BVerfGE 73, 339 (Solange II), 387; id., BVerfGE 102, 147 (Bananenmarkt), para. 54.

22

Id., BVerfGE 118, 79 (Treibhausgas-Emissionsberechtigungen), paras. 69 et seq.

Id., Vorratsdatenspeicherung (note 17), paras. 187, 205 et seq. For further elaboration on the Court’s judgement see the comments of Christoph Ohler, Juristenzeitung 2010, 626, and Diethelm Klesczewski, ibid., 629; see also Dorothee Szuba, Vorratsdatenspeicherung: der europäische und deutsche Gesetzgeber im Spannungsfeld zwischen Sicherheit und Freiheit (2011), 219 et seq. 23

24 For further elaboration on this topic see Matthias Bäcker, Solange IIa oder Basta I? Das Vorratsdaten-Urteil des Bundesverfassungsgerichts aus europarechtlicher Sicht, Europarecht 46 (2011), 103, 108 et seq.

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The Situation after the Ruling of the FCC: As the national law had been declared void, the obligation to implement the Directive would have required a further national law. As the FCC had already mentioned several aspects which had to be taken into account for a modified codification, a national law in accordance with the German Basic Law seemed achievable. However, at the time of publishing, more than two years after the Court delivered its judgement, there has still not been any sign that a new law would soon be adopted. This has been consistently criticised by the competent Commissioner Cecilia Malmström, the European Commissioner for Home Affairs. However, German authorities have given several reasons for the continued lack of implementation. The Development of a Revised Data Retention Directive: Commissioner Cecilia Malmström has already announced that the Data Retention Directive is being revised. The updated version is expected for 2013.25 Therefore, the German Minister of Justice has argued that nobody can foresee which changes are to be included during the revision process. Thus, an implementation of the Directive would be redundant, and the German legislator should await the new Directive before passing a national law which would have to be revised a year later.26 This reasoning seems plausible at first sight, especially as it is expected that the revisions will decrease the period for which data is to be retained.27 This implies that even at the European level there are doubts concerning the compatibility of the Directive with EU primary law. The argument of an expected revision, however, is not entirely new. During an Infringement Proceeding between the European Commission and Italy in the 1990s, Italy based its defence on the same reasoning, arguing that there was a lack of interest in bringing proceedings. The ECJ, however, ruled – without any discussion – that a pending revision of a directive did not affect the Member States’ obligation deriving from Article 288 (2) of the TFEU (the former Kai Biermann, Datenspeicherung: Neue EU-Richtlinie zu Vorratsdaten kommt erst 2013, 4 July 2012, available at: http://www.zeit.de/digital/internet/2012-07/vorratsdaten-richtlinie-malmstroem (accessed on 27 November 2012). 25

Federal Ministry for Justice (Bundesministerium für Justiz), Eckpunktepapier zur Sicherung vorhandener Verkehrsdaten und Gewährleistung von Bestandsdatenauskünften im Internet, 1, available at: http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/eckpunktepapr_zur_sicherung_vorhandener_ verkehrsdaten.pdf?__blob=publicationFile (accessed on 27 November 2012). 26

Spiegel Online, EU-Kommissarin will Zugriff auf Vorratsdaten einschränken, 4 July 2012, available at: http://www.spiegel.de/netzwelt/netzpolitik/ueberwachung-eu-kommissarin-kuendigt-neuevorratsdaten-richtlinie-an-a-842477.html (accessed on 27 November 2012). 27

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Article 249 (2) of the Treaty establishing the European Communities).28 It is presumed that the Court based its conclusion on the Opinion of Advocate General Lenz, who argued that such reasoning would call into question the whole system of approximation of laws.29 Moreover, in that case, the revised directive had already been adopted by the Council months before the Commission filed an application at the ECJ.30 Here, by the time the Commission had brought an action to the ECJ, it could not be foreseen when a revised Data Retention Directive would be adopted. It therefore seems almost certain that the ECJ would not accept the German Minister of Justice’s argument. The Alternative Procedure – Quick Freeze: The German Minister of Justice has repeatedly promoted the Quick Freeze Procedure. In this procedure, the State does not create an obligation to retain all data without distinction. Instead, once there is a suspicion of a reason for which the use of traffic and location data is permitted, public authorities can order the retention of data that telecommunication companies have stored for economic reasons.31 The main difference here is that personal data do not have to be stored without cause or distinction, but that the data are subject to provisions created by public authorities only when there is a suspicion of committed crime or danger to public safety. The procedure therefore infringes on the right to protection of personal data less intensely.32 In fact, the amount of data which public authorities are able to use for their purposes would – at least nowadays – not decrease significantly if the Quick Freeze Procedure alone was codified. This is because providers of communication services usually store traffic data for contractual reasons, mostly for a period of six months or even longer.33 Public authorities would be able to gain access to these data under the same conditions as those data being retained according to the Data Retention Directive. The difference is, however, that communication companies retain data deliberately, not because they 28

ECJ, Case C-182/94, Commission v. Italy, 1995 ECR I-1465, paras. 4, 6.

29

Ibid., Opinion of Advocate General Lenz, 1995 ECR I-1467, para. 5.

30

ECJ, Commission v. Italy (note 28), para. 4.

Federal Ministry for Justice (note 26), 2 et seq.; for a short English description see id., Quick Freeze, available at: http://www.bmj.de/EN/Subjects/DigitalRights/QuickFreeze/_node.html (accessed on 27 November 2012). 31

32

Federal Ministry for Justice (note 26), 2; cf. FCC, Vorratsdatenspeicherung (note 17), para. 208.

33

Federal Ministry for Justice (note 26), 3; Spiegel Online (note 27).

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are obliged to by law. This means they could decide not to retain data at all, and as a result no data would exist to be ‘frozen’ once a reason occurs. Therefore, it seems undeniable that the Quick Freeze Procedure is a less effective method for prosecution and prevention of danger to public safety.34 And, more important, it is also obvious that Quick Freeze is not a sufficient implementation of the obligation contained in Article 3 of the Data Retention Directive.35 Finally, it must be noted that even Quick Freeze has not been codified by the German legislator. Germany therefore cannot even claim that the Directive has partly been implemented. The Directive’s Conformity with EU Primary Law: The conformity of the Data Retention Directive with EU primary law, i.e. the Treaties and the Charter of Fundamental Rights, has often been contested. First, it was questioned whether the EU was competent to adopt a directive in this area. Due to these doubts, in 2006 Ireland brought an action for annulment according to Article 263 of the TFEU (formerly Article 230 of the TEC) to the ECJ, arguing that at the very least the chosen legal basis was not applicable.36 This reasoning, however, was not shared by the Court, which confirmed the competence of the European Union and therefore dismissed the action.37 As the Court explicitly refrained from giving judgment on possible infringements of fundamental rights,38 this was the next question to arise. In 2009, the Court therefore had to adjudicate on a reference for primary ruling according to Article 267 of the TFEU (formerly Article 234 of the TEC), referred to it by the Administrative Court of Wiesbaden (Verwaltungsgericht Wiesbaden), which also questioned the validity of the Data Retention Directive. Again, the ECJ did not judge on the content of the Directive, as it could not see any relevance of the question with regard to the outcome of the case in question. It therefore declared the referral inadmissible as far

34

FCC, Vorratsdatenspeicherung (note 17), para. 208.

European Commissioner Cecilia Malmström, cited in faz.net, “Wir waren sehr geduldig mit Deutschland” (“we were very patient with Germany” – translated by the author), 3 July 2012, available at: http://www.faz.net/aktuell/politik/europaeische-union/eu-innenkommissarin-cecilia-malmstroemwir-waren-sehr-geduldig-mit-deutschland-11808962.html (accessed on 27 November 2012). 35

ECJ, Case C-301/06, Ireland v. European Parliament and European Council, Slovakia Intervening, 2009 ECR I-593, para. 38. 36

37 Ibid., paras. 56 et seq.; for further comments on the judgement see, e.g., Ester Herlin-Karnell, Annotation of Ireland v. Parliament and Council, Common Market Law Review 46 (2009), 1667. 38

ECJ, Ireland v. European Parliament and European Council (note 36), para. 57.

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as the Data Retention Directive was concerned.39 It must be noted, however, that the Data Retention Directive has once more been subject to a reference for primary ruling: in June 2012, the Irish High Court referred the Directive to the ECJ to examine its compatibility with EU primary law.40 The High Court asked the ECJ to rule on the compatibility of the Directive with the principle of proportionality, codified in Article 5 (4) of the TEU,41 with regard to the aims of availability of data and functioning of the EU internal market. Specifically, the question was raised whether the Directive violated Articles 7 (right to privacy), 8 (protection of personal data), 11 (freedom of expression of opinion) and 41 (right to good administration) of the Charter of Fundamental Rights,42 or Article 21 of the TFEU (the right of citizens to move and reside freely within the territory of Member States). At the time of writing, no information on the proceedings except for the application of Ireland has yet been made available. These referrals once more show the highly controversial content of the Directive. The present article will not go into detail on this question,43 since it is not necessary for the preset case: as the ECJ has stated continuously in its jurisprudence, a State party to an infringement procedure cannot defend itself by arguing that the act it has to implement is illegal. This is because the EU treaties differ between judicial proceedings dealing with the legality of actions of European organs – pursuant to Article 263 of the TFEU – and those examining the compliance with Member States’ obligations – following Article 258 of the TFEU. If a State believes that a Directive violates EU primary law, it cannot wait until the Commission initiates an infringement procedure: it has to initiate an action for annulment itself.44 The only exception to this is where the measure in question contains “such particularly serious and

Id., Joint Cases C-92/09 and C-93/09, Volker und Markus Schecke GbR and Hartmut Eifel v. Land Hessen, 2010 ECR I-11063, para. 42. 39

40 Id., Case C-293/12, Referral of 11 June 2012, Case information available via: http://curia.europa. eu/juris/recherche.jsf?language=en (accessed on 27 November 2012); for the wording of the Application see OJ 2012 C 258, 11. 41

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

Charter of Fundamental Rights of the European Union, OJ 2010 C 83, 389; since the Treaty of Lisbon, the Charter of Fundamental Rights is part of the EU Primary Law, see Art. 6 (1) of the TEU. 42

43

For a comprehensive analysis of this question see Szuba (note 23), 86 et seq.

44

See, e.g., ECJ, Case C-196/07, European Commission v. Spain, 2008 ECR I-41, para. 34.

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manifest defects that it [can] be deemed non-existent.”45 With regard to the fact that the conformity with primary law is highly disputed, whereby it seems that both sides have credible arguments, the Court will certainly not find such manifest defects in the proceedings against Germany. Thus, the questionable legality of the Data Retention Directive will not prevent a judgement against Germany. Political Reasons: It must be presumed that the German Ministry of Justice is well aware of the ECJ’s jurisprudence with regard to the implementation of EU Directives. It also seems questionable, even if Quick Freeze is taken to be a form of implementation of the Directive, that this would be seen to be sufficient. This leads to the conclusion that the German government simply is not willing to implement the Directive, although it is well-known that this obligation exists. At first sight, this conclusion may seem odd, as Germany voted in favour of the Directive in the Council. However, there are reasons for this development, and these are mainly political. By the time the FCC delivered its judgment on the law implementing the Directive, the composition of the German government had already changed due to the result of the Federal Parliament (Bundestag) elections in 2009. The coalition government is now partially formed from members of the Liberal Democratic Party (Freie Demokratische Partei), which regularly stresses its focus on the protection of citizens’ fundamental rights and freedoms. More pertinently, the Minister of Justice, Sabine Leutheuser-Schnarrenberger, who is responsible for the draft of the new law, was in fact one of the claimants against the law implementing the Data Retention Directive.46 She not only criticised the way the direction was implemented, but claimed that an implementation in accordance with the German Basic Law was entirely impossible.47 Thus, a full or even part implementation of the Directive by the Minister of Justice seems highly improbable. This expectation is underlined by the fact that in 2013, new elections to the Federal Parliament will be held. Times of election campaigns cannot be said to increase the will to approach politically disputed matters. In addition, the Minister’s Liberal Party is struggling to reach the ‘Five Percent Threshold’ (Fünf-Prozent-Hürde), which, 45

Id., Case C-74/91, Commission v. Germany, 1992 ECR I-5437, paras. 10–11.

46

See FCC, Vorratsdatenspeicherung (note 16), para. 119.

47

Leutheuser-Schnarrenberger (note 8), 13.

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according to current forecasts, it could fail to reach if elections were held today. Due to German election law, this would mean that the Liberals would not be represented in the Parliament at all. This burden and the resulting uncertainty as to whether the party will be represented in the next Federal Parliament make it even more certain that the Liberal Party would not assume responsibility for a law which is disputed with regard to its compatibility with the rights and freedoms of the Basic Law. For this reason, other members of the German coalition government have already asked Chancellor Angela Merkel to intervene and to press the Minister of Justice to prepare proceedings for a new law.48 Such an intervention, however, has not as yet been made public. Perspective: Time passes in favour of the Minister of Justice: elections to the Federal Parliament will be held in September 2013.49 As the Commission’s action against Germany was only filed in July 2012, it is unlikely that the ECJ will deliver its judgment before the election. Thus, the Liberal Party can leave the problem to the next government. The question is then whether an implementation of the Directive can be expected subsequent to the judgment. If the government were to consist of the current coalition parties the issue would continue. If, however, the German Social Democrats (Sozialdemokratische Partei Deutschlands) were to become part of the government, their willingness to implement the directive cannot be foreseen. However, it seems likely that they would want to do so for two reasons. The Social Democrats were part of the government when the Council voted on the original Directive. Furthermore, even afterwards the Party decided in favour of the data retention; an initiative by the party’s members to oppose the directive failed.50 In addition, once a new government starts work on a draft of the law implementing the Data Retention Directive after the elections in autumn 2013, the year 2013 Spiegel Online, Streit um Vorratsdatenspeicherung: CSU nennt Justizministerin ‘Sicherheitsrisiko’, 1 June 2012, available at: http://www.spiegel.de/politik/deutschland/csu-bezeichnet-leutheusserschnarrenberger-als-sicherheitsrisiko-a-836568.html (accessed on 27 November 2012). 48

49 Der Bundeswahlleiter, Wahl zum 18. Deutschen Bundestag, available at: http://www. bundeswahlleiter.de/de/bundestagswahlen/BTW_BUND_13/ (accessed on 27 November 2012). 50 Spiegel Online, Überwachung: SPD will Vorratsdaten speichern, 6 December 2011, available at: http://www.spiegel.de/netzwelt/netzpolitik/ueberwachung-spd-will-vorratsdaten-speichern-a-802087. html (accessed on 27 November 2011); id., Vorratsdaten: SPD-Netzpolitiker scheitern mit Mitgliedsbegehren, 24 October 2012, available at: http://www.spiegel.de/netzwelt/netzpolitik/spd-mitglieder begehren-gegen-vorratsdatenspeicherung-gescheitert-a-863084.html (accessed on 27 November 2011).

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will (almost) be over. Since the revised Directive has been announced for 2013,51 the government then cannot argue that it is waiting for a revision of the Directive. Therefore, the Directive will probably be implemented in 2014. Since the controversy of the issue will not have passed until then, another question is whether the implementing law will endure possible examination by the German Federal Constitutional Court.

51

See supra.

Margin of Appreciation or a Victimless Crime? The European Court of Human Rights on Consensual Incest of Adult Siblings PATRICK BRAASCH(

Introduction: The incest taboo is a phenomenon as old as human history. Functionally, according to Lévi-Strauss, the incest taboo has been the driving force of humankind. By forcing man to find a partner outside his immediate family, different clans have been brought together and society has flourished.1 Others suggest that, for biological reasons, human instinct prevents defective genes being passed down.2 Today, many societies not only disapprove of incest morally, but additionally use criminal law to prevent and punish consensual sexual relations between relatives. However, no clear international consensus exists on the question of whether incest should carry criminal penalties, with a large number of States choosing not to criminalise consensual incestuous relations per se. Confronted with an application by a German national convicted of incest (Stübing v. Germany),3 the European Court of Human Rights (ECtHR) was called upon to clarify the scope of protection under Article 8 of the European Convention on Human Rights (ECHR)4 with respect to incestuous relations. In particular, the Court’s judgment provides new insights into the States Parties’ margin of appreciation when using criminal law to protect morality. Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. (

1

See Claude Lévi-Strauss, The Elementary Structures of Kinship (2nd ed. 1969), 12 et seq.

See Clare Murphy, Incest: an age-old taboo, 12 March 2007, available at: http://news.bbc.co.uk/2/ hi/6424337.stm (accessed on 12 September 2012). 2

3 ECtHR, Stübing v. Germany, Judgment of 12 April 2012, No. 43547/08, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 12 September 2012). 4 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR).

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The Facts of the Case: The applicant is a German national who was first placed in a children’s home at the age of three. Later, he was adopted by the foster family in whose care he had subsequently been placed.5 After his adoption at the age of seven, he did not have any contact with his natural family. Shortly afterwards, his biological sister was born. Only when the applicant re-established contact with his natural family in 2000 did he learn of his sister’s existence who turned sixteen that year. After their mother died in December 2000, the relationship between the siblings grew closer. Beginning in January 2001, they lived together and had consensual sexual intercourse.6 Between 2001 and 2005, they had four children, three of which were placed in the care of foster families.7 In 2005, the Leipzig District Court (Amtsgericht Leipzig), applying Section 173 (2) cl. 2 of the German Criminal Code (CC) (Strafgesetzbuch),8 convicted the applicant of several counts of incest and sentenced him to a summary sentence of one year and two months’ imprisonment.9 His sister, although charged, did not receive a sentence as the Leipzig District Court found her to be only partially liable for her actions.10 The judgment was upheld by the Dresden Higher Regional Court (Oberlandesgericht Dresden).11 In 2008, the Federal Constitutional Court (FCC) (Bundesverfassungsgericht), by seven votes to one, rejected the applicant’s constitutional complaint as being un5

ECtHR, Stübing v. Germany (note 3), para. 6.

6

Ibid., para. 7.

7

Ibid., para. 8.

See Sec. 173 of the German Criminal Code, 13 November 1998, BGBl. I, 3322, as amended on 25 June 2012, BGBl. I, 1374: Incest (1) Whosoever performs an act of sexual intercourse with a consanguine descendant shall be liable to imprisonment of not more than three years or a fine. (2) Whosoever performs an act of sexual intercourse with a consanguine relative in an ascending line shall be liable to imprisonment of not more than two years or a fine; this shall also apply if the relationship as a relative has ceased to exist. Consanguine siblings who perform an act of sexual intercourse with each other shall incur the same penalty. (3) Descendants and siblings shall not be liable pursuant to this provision if they were not yet eighteen years of age at the time of the act (unofficial translation by Michael Bohlander, available at: http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P173 [accessed on 12 September 2012]). 8

Leipzig District Court (Amtsgericht Leipzig), Judgment of 10 November 2005, 253 Ls 430 Js 29620/04 (unpublished); see ECtHR, Stübing v. Germany (note 3), para. 11. 9

10

ECtHR, Stübing v. Germany (note 3), para. 12.

Dresden Higher Regional Court (Oberlandesgericht Dresden), Decision of 30 January 2007, 3 Ss 91/06 (unpublished); see ECtHR, Stübing v. Germany (note 3), para. 13. 11

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founded.12 It held that Section 173 (2) cl. 2 of the CC restricted the right to sexual self-determination (Article 2 (1) in conjunction with Article 1 (1) of the German Constitution (Basic Law) (Grundgesetz)13) of biological siblings by making sexual intercourse between them a punishable offence. The legislator, however, had pursued constitutionally legitimate objectives which overall justified the limitation imposed on the right to sexual self-determination. These objectives included the protection of marriage and the family, the protection of sexual self-determination, and also genetics, as the risk of significant damage to the progeny of an incestuous relationship could not be excluded.14 According to the FCC, the impugned criminal provision was justified by the sum of these objectives. It pointed out that this view was also evident on the international level. Analysing the provision, it found the prohibition of sexual intercourse between consanguine siblings to comply with the principle of proportionality as it was suitable for promoting the desired objectives, necessary and proportionate.15 The FCC’s Vice-President, Judge Hassemer, submitted a dissenting opinion arguing that Section 173 (2) cl. 2 of the CC did not pursue a legitimate aim and was not suited to attain the objectives pursued.16 The ECtHR’s Judgment: Before assessing the applicant’s case, the Court outlined the legal consequences of incest in other European States. Out of 44 States reviewed, the performance of consensual sexual acts between adult siblings was considered a criminal offence in 24 States17 while it was not punishable under criminal law in twenty States.18 According to the Court, there are no plans to abolish the offences in

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 120, 224; for an English summary see id., Press release No. 29/2008, 13 March 2008, available at: http://www.bverfg.de/presse mitteilungen/bvg08-029en.html (accessed on 12 September 2012). 12

Basic Law for the Federal Republic of Germany (Grundgesetz der Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 11 July 2012, BGBl. I., 1478. 13

14

ECtHR, Stübing v. Germany (note 3), paras. 16–18.

15

Ibid., paras. 19–22.

16

Ibid., paras. 23–25.

Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Finland, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Macedonia, Moldova, Poland, Romania, San Marino, Slovakia, Sweden, Switzerland and the United Kingdom. 17

Armenia, Azerbaijan, Belgium, Estonia, France, Georgia, Latvia, Lithuania, Luxembourg, Malta, Monaco, Montenegro, the Netherlands, Portugal, the Russian Federation, Serbia, Slovenia, Spain, Turkey and Ukraine. 18

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the countries concerned. In recent years some States have increased criminal penalties for incest while others have decriminalised it.19 Turning to the case at hand, the Court started by finding that the applicant’s criminal conviction interfered with the right to respect for his private life under Article 8 of the ECHR.20 It went on to examine whether the interference with the exercise of this right is compatible with the standards of Article 8 (2) of the ECHR and thus has aims that are legitimate under this provision and necessary in a democratic society for these aims.21 Accepting that the provision was aimed at the protection of morals and of the rights of others, it observed that Section 173 (2) cl. 2 of the CC pursued a legitimate aim within the meaning of Article 8 (2) of the ECHR.22 With regard to the necessity in a democratic society, the Court reiterated its standard of scrutiny, which requires a fair balance to be struck between the relevant competing interests at stake and the margin of appreciation enjoyed by the State.23 With respect to interferences concerning the manifestation of a person’s sexuality, the Court – as a general rule – requires particularly persuasive justification to provide legitimacy under Article 8 (2) of the ECHR.24 In those cases raising sensitive moral or ethical issues where there has proved an absence of consensus between the Member States as to the importance of the interest at stake or as to the best means of protecting it, the Court has accorded a wider margin to the States.25 Considering incestuous relationships between consenting adults, the Court pointed out that no consensus existed between the Member States as to the necessity of criminal liability. However, the Court noted that incest was a criminal offence in a majority of 24 out of 44 States reviewed and that all legal systems prohibited siblings

19 ECtHR, Stübing v. Germany (note 3), paras. 28–30. The ECtHR based parts of this assessment on an expert report by the Max Planck Institute for Foreign and International Criminal Law prepared in course of the domestic proceedings. The report is available in German language at: http://www. mpicc.de/shared/data/pdf/05-08-inzest_gutachten.pdf (accessed on 12 September 2012). 20

ECtHR, Stübing v. Germany (note 3), para. 55.

21

Ibid., para. 56.

22

Ibid., para. 57.

23

Ibid., para. 58.

24

Ibid., para. 59.

25

Ibid., para. 60.

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from getting married. According to the Court, this was evidence of a broad consensus that incest was not accepted by the legal order or society as a whole. As there also was no evident general trend towards a decriminalisation of incestuous acts, the Court concluded that the domestic authorities enjoyed a wide margin of appreciation.26 Finally, the Court set out its approach of only examining the applicant’s present criminal conviction rather than the criminal provision itself.27 Considering the combination of objectives identified by the FCC, the common conviction that incest should be subject to criminal liability, and the serious danger to family structures and society as a whole, the Court accepted that the applicant’s criminal conviction corresponded to a pressing social need.28 Complimenting the FCC on its ‘careful consideration’ and the ‘thoroughness of the examination’, the Court concluded that the German courts stayed within their margin of appreciation when convicting the applicant of incest.29 Accordingly, it found unanimously there had been no violation of Article 8 of the ECHR.30 Comment: The ECtHR was called upon to answer an equally sensitive as difficult question on which there is no European consensus.31 For the reasons to be discussed below, it failed to live up to the expectations. The situation of the applicant and his sister is, to put it mildly, an unfortunate one. The history of their upbringing and their subsequent relationship suggests that they need care and support, rather than criminal justice. From a legal perspective, however, this case raises several serious questions about the purpose of criminal law in a democratic society in general and the purpose of the criminalisation of incest in particular.

26

Ibid., para. 61.

27

Ibid., para. 62.

28

Ibid., paras. 63, 65.

29

Ibid., para. 66.

30

Ibid., para. 67 and the holding, para. 2.

In a similar case, the US Supreme Court, Muth v. Frank, 546 US 988 (2005), held that the criminalisation of consensual adult incest was not unconstitutional. On the origin on the case, see Brendan J. Hammer, Tainted Love: What the Seventh Circuit Got Wrong in Muth v. Frank, DePaul Law Review 56 (2007), 1065. 31

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In German criminal law theory, the purpose of any criminal law is the protection of legal interests (Rechtsgüterschutz).32 The concept of Rechtsgüterschutz limits the range of the legislator who must establish that a criminal provision protects recognised legal interests of the State or its citizen rather than merely moral views. While this theory is disputed by some scholars33 and not accepted as legally binding by German courts, the FCC has devoted immense effort to the identification of those legal interests whose protection may justify penal restrictions on the fundamental rights of incestuous siblings. As described above, the FCC declared that the protection of marriage and the family, the protection of sexual self-determination, and general genetic grounds served to legitimise the limitation imposed on the right to sexual selfdetermination. This reasoning of the FCC appears deficient as none of the objectives listed can be effectively and legitimately protected by Section 173 (2) cl. 2 of the CC. First, the protection of marriage and the family does not justify the limitation of the right to sexual self-determination, which is protected under Article 8 of the ECHR. As the present case shows, cases of incest between siblings may occur where there is no family to be protected in first place.34 The applicant and his sister did not grow up together and never lived as a family unit together with one or both of their parents. It is not feasible to determine what concept of ‘family’ is to be protected by the criminal provision.35 These doubts are further supported by the fact that Section 173 (3) of the CC excludes perpetrators under the age of eighteen, as siblings over the age of majority tend to live outside their childhood family unit.36 Admittedly, role confusions caused by children born to incestuous siblings can harm the family order. However, pregnancy or even the birth of a child are not elements of the crime. The provision aims at punishing the incestuous sexual relation per se, which is at least inconsistent when 32 On the concept in general, see Claus Roxin, Strafrecht Allgemeiner Teil (4th ed. 2006), Teil 1, § 2, paras. 2, 123. For an introduction to the concept in English, see Tatjana Hörnle, Offensive Behavior and German Penal Law, Buffalo Criminal Law Review 5 (2001), 255. 33 See, for example, Otto Lagodny, Basic Rights and Substantive Criminal Law: The Incest Case, University of Toronto Law Journal 61 (2011), 761.

See Christian Ritscher, § 173 – Beischlaf zwischen Verwandten, in: Wolfgang Joecks/Klaus Miesbach (eds.), Münchener Kommentar zum Strafgesetzbuch, vol. 3 (2nd ed. 2012), para. 5. 34

35

See Claus Roxin, Zur Strafbarkeit des Geschwisterinzests, Strafverteidiger 29 (2009), 544, 546.

See Wilfried Bottke, Roma locuta cause finite? Abschied vom Gebot des Rechtsgüterschutzes?, in: Winfried Hassemer/Eberhard Kempf/Sergio Moccia (eds.), In dubio pro libertate: Festschrift für Klaus Volk zum 65. Geburtstag (2009), 93, 104. 36

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considering that other sexual relations harmful to family life, such as adultery, are no longer considered criminal offences. Similarly, the term ‘sexual intercourse’ in Section 173 (2) cl. 2 of the CC as applied by the German Courts only includes vaginal intercourse as the only sexual act which may lead to pregnancy.37 It is hard to accept that other equally intense sexual acts have a less severe impact on family relations if practiced by siblings.38 The criminal provision does not include step-siblings, foster siblings or adoptive siblings which, as part of a family, would require similar protection to consanguine siblings.39 Finally, the stress caused by criminal proceedings as in the present case may be equally harmful to the family as the incestuous relationship itself.40 The existence of a marriage is not even required by Section 173 (2) cl. 2 of the CC.41 Considering all these deficiencies, the prohibition on incest of siblings does not conclusively protect marriage and the family.42 Second, the protection of sexual self-determination is not intended by Section 173 (2) cl. 2 of the CC. Offences against a person’s sexual self-determination are punishable under special provisions of the CC, including sexual abuse of position of trust,43 child abuse,44 sexual assault,45 causing minors to engage in sexual activity,46 and abuse of juveniles.47 In the present case, however, both siblings consented to their sexual relationship and there is no evidence of any form of abuse. Section 173 (2) cl. 2 of the CC also provides for the punishment of both siblings involved without identifying one 37

See Ritscher (note 34), para. 9.

See Klaus Ellbogen, Strafbarkeit des Beischlafs zwischen Verwandten: Ein Relikt aus der Vergangenheit, Zeitschrift für Rechtspolitik 39 (2006), 190, 191. 38

See Tatjana Hörnle, Grob anstössiges Verhalten: Strafrechtlicher Schutz von Moral, Gefühlen und Tabus (2005), 454. 39

40 Ali Al-Zand/Jan Siebenhüner, § 173 StGB – Eine kritische Betrachtung des strafrechtlichen Inzestverbots, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 89 (2006), 68, 72. On the impact of the proceedings on the applicant and his sister, see Evelyn Finger, Das letzte Tabu, 8 November 2007, available at: http://www.zeit.de/2007/46/Inzest (accessed on 12 September 2012). 41

See Hörnle (note 39), 452.

See Ellbogen (note 38), 191; Theodor Lenckner/Nikolaus Bosch, § 173 – Beischlaf zwischen Verwandten, in: Adolf Schönke/Horst Schröder (eds.), Strafgesetzbuch (28th ed. 2010), para. 1. 42

43

Sec. 174 of the CC.

44

Sec. 176 of the CC.

45

Sec. 177 of the CC.

46

Sec. 180 of the CC.

47

Sec. 182 of the CC.

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as the perpetrator and the other as the victim. In short, if a person freely chooses to engage in a sexual relationship with a sibling, there is no clarification as to how the prohibition of such a relationship protects their sexual self-determination.48 Additionally, as mentioned above, Section 173 (2) cl. 2 of the CC prohibits only vaginal intercourse which clearly is insufficient to protect a person’s sexual self-determination. Third, genetics cannot legitimately justify the prohibition of consensual incest. In first place, some authors have argued that there may be no clear scientific evidence that children born to siblings face a significant risk of genetic defects.49 Assuming that risk exists, there are several strong arguments against this legislation. As neither pregnancy nor the birth of a child are elements of the crime, it is only the risk of pregnancy which is being punished. Given the availability of birth control and that some may be medically incapable of natural reproduction, meaning risk of pregnancy in these cases is negligible, the absolute prohibition is excessive. The most profound argument, however, concerns the general legitimacy of genetic argumentation.50 Even if children of incestuous siblings were exposed to a high risk of genetic defects, they would be afforded the same legal protection as any other child. Their human dignity which is expressly recognised by Article 1 (1) of the Basic Law as well as Article 1 of the Charter of Fundamental Rights in the European Union (CFREU)51 does not allow the legislator to consider their conception and birth as undesirable. There can be no question that other groups with an increased risk of passing on genetic defects, such as persons with severe genetic defects or older parents, legitimately may have children.52 The history of Nazi Germany reminds us that a collective interest in maintaining a ‘high genetic quality’ of the population must be rejected.53 Potentially, this argument can be extended to the desire to have a high standard of health (Volksgesundheit). In any case, there is no life unworthy of living. Thus, preventing the A concept of indirect protection of sexual self-determination is argued by Monika Frommel, § 173 Criminal Code, in: Urs Kindhäuser/Ulfrid Neumann/Hans-Ullrich Paeffgen (eds.), Strafgesetzbuch, vol. 2 (3rd ed. 2010), para. 1. 48

49

See Ellbogen (note 38), 191.

See Tatjana Hörnle, Das Verbot des Geschwisterinzests – Verfassungsgerichtliche Bestätigung und verfassungsrechtliche Kritik, Neue Juristische Wochenschrift 61 (2008), 2085, 2087. 50

51

Charter of Fundamental Rights in the European Union, 12 December 2007, OJ 2007 C 303, 1.

See Ritscher (note 34), para. 3; Benno Zabel, Die Grenzen des Tabuschutzes im Strafrecht, Juristische Rundschau (2008), 453, 457. 52

53

See Hörnle (note 39), 456.

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conception and birth of children with genetic defects cannot be a legitimate objective of criminal law.54 The FCC apparently noticed that none of the objectives mentioned were convincing by themselves. Instead of coming to the logical conclusion that there is no legal interests which is protected by the provision, the FCC tried to escape this dilemma by accepting the sum of these motives as justification. This clearly is not compatible with fundamental principles of legal reasoning, as several invalid arguments do not combine into a valid one.55 When the case was brought before the ECtHR, one would have expected that the Court would point out this deficiency. This, however, did not happen as the Court accepted the protection of morals as a legitimate aim. Admittedly, Article 8 (2) of the ECHR provides for the protection of morals. Unlike the FCC, which tried to establish the existence of a protected legal interest other than morality, the ECtHR allows a wider margin of appreciation. Yet, one has to recall the ECtHR’s judgment in Dudgeon concerning the criminalisation of homosexuality in Northern Ireland.56 Combining the aim of protecting morals with the requirement of necessity in a democratic society, the Court demanded the existence of a pressing social need which, notwithstanding the margin of appreciation enjoyed by the Member State, is subject to review by the Court.57 In cases concerning the most intimate aspects of private life, there must be particularly serious reasons for interference.58 The Court in Dudgeon stressed that two hallmarks of necessity in a democratic society are tolerance and broadmindedness.59 It concluded that there was no sufficient justification for the criminalisation of homosexuality. In particular, the Court argued that concerns that a relaxation of the law would erode existing moral

54 This is supported by a statement by the German Society of Human Genetics, 29 April 2008, available at: http://www.gfhev.de/de/startseite_news/2008_GfH_Stellungnahme_Inzestverbot.pdf (accessed on 12 September 2012).

Jörg Ziethen, Anmerkung zum BVerfG, 26. 2. 2008 – 2 BvR 392/07: Strafbarkeit des Geschwisterinzests, Neue Zeitschrift für Strafrecht 28 (11) (2008), 614, 617. 55

56 ECtHR, Dudgeon v. United Kingdom, Judgment of 22 October 1981, No. 7525/76, Series A, No. 45. The Court itself referenced Dudgeon in the present case, see ECtHR, Stübing v. Germany (note 3), para. 59. 57

ECtHR, Dudgeon v. United Kingdom (note 56), paras. 51 et seq.

58

Ibid., para 52.

59

Ibid., para 53.

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standards could not, by itself, warrant interfering with private life to such an extent, stressing that decriminalisation does not constitute approval.60 Considering the line of argument in Dudgeon, one should ask how the case of incest differs from the case of homosexuality. It is submitted that in the absence of any form of abuse and particularly in cases where there is no potential for conception, both incestuous and homosexual acts are intimate aspects of one’s private life which do not harm any legitimate legal interest. If, accordingly, both cases are reduced to the protection of morals, the only difference appears to be that homosexuality has become more widely accepted over the past decades while incest still is considered highly immoral by society. Applying the standards of Dudgeon, the Court could and should have arrived at the same conclusion that the mere protection of moral standards is insufficient to criminalise such private acts.61 The fact that the Court chose to depart from this standard and accepted the inconclusive reasoning of the FCC is disappointing62 and gives rise to concerns of a resurgence of moral criminal law. The absence of the Court’s own assessment of the ethical questions at hand and the purpose of criminal law in general will leave the philosophically minded unfulfilled.63 It is submitted that the existence of a legitimate legal interest is a prerequisite of any criminal law which is the legislator's ultima ratio. It should not be used imprudently to enforce the prohibition of behavior which doesn’t affect any legal interests and otherwise would be a merely cultural taboo. One may speculate that the Court anticipated strong opposition to a judgment in favour of the applicant which, perceived as judicial imperialism, could have severely damaged the acceptance of the Court, especially in more conservative Member States. However, by hiding behind the margin of appreciation enjoyed by the Member States, the Court chose not to protect an unknown number of people from a victimless crime. It has been argued by Lord Lester that “the concept of the ‘margin of 60

Ibid., para 61.

See Marko Milanovic, Incest in the European Court, EJIL: Talk!, 15 April 2012, available at: http://www.ejiltalk.org/incest-in-the-european-court/ (accessed on 12 September 2012). 61

62 Milanovic (note 61) observes that the standard applied by the Court is not even rational basis-type review but rather the lack of any scrutiny whatsoever.

Daniel Sokol, What’s so wrong with incest? The case of Stübing v. Germany, 15 April 2012, available at: http://ukhumanrightsblog.com/2012/04/15/whats-so-wrong-with-incest-the-case-of-stubingv-germany/ (accessed on 12 September 2012). 63

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appreciation’ has become as slippery and elusive as an eel” appearing to be used as “a substitute for coherent legal analysis of the issues at stake.”64 The present judgment does not serve to refine the boundaries on national discretion but rather adds blur and unpredictability to this vague concept.

Lord Lester of Herne Hill, The European Convention on Human Rights in the New Architecture of Europe: General Report, Yearbook of the European Convention on Human Rights, vol. 38A (1995), 223, 233. 64

Equal (Enough), at Last? Latest ECtHR Jurisprudence in Ahrens v. Germany and Kautzor v. Germany on the Rights of Biological Fathers JULIA GEBHARD( AND JOHANNES FUCHS((

Introduction: It is no understatement to say that the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)1 has strongly influenced German family law. Notably, the decision of the European Court of Human Rights (ECtHR) in the case of Görgülü2 led to a judgment of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) clarifying the general effects of the ECHR’s jurisprudence for German authorities.3 The decisions in the cases of Ahrens4 and Kautzor5 share a common denominator with the majority of cases against Ger( LL.M., Doctoral Candidate at the International Max Planck Research School for Retaliation, Mediation and Punishment. (( Research Assistant at the Walther-Schücking-Institute for International Law at the University of Kiel, Doctoral Candidate at the University of Hamburg. 1 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 2 ECtHR, Görgülü v. Germany, Judgment of 26 May 2004, Application No. 74969/01. All judgments of the ECtHR cited in this article without further reference are available via: http://hudoc.echr. coe.int/sites/eng (accessed on 8 February 2013). 3 Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 111, 307, 323 et seq. See also Hans-Georg Dederer, Die Architektonik des europäischen Grundrechtsraums, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 66 (2006), 576, 592. Arts. 8 and 12 of the ECHR (note 1) can be described as having a “function of general orientation” (Leitbildcharakter) for European constitutional law, see Markus Kotzur, Art. 6, in: Klaus Stern/Florian Becker (eds.), Grundrechte-Kommentar (2010), para. 105.

ECtHR, Ahrens v. Germany, Judgment of 22 March 2012, Application No. 45071/09 (ECtHR, Ahrens). 4

5 ECtHR, Kautzor v. Germany, Judgment of 22 March 2012, Application No. 23338/09 (ECtHR, Kautzor). Since on 24 September 2012 the panel of the Grand Chamber rejected the request to refer the cases to the Grand Chamber, both Kautzor and Ahrens are final under Art. 44 (2)(c) of the ECHR.

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many before the ECtHR in family matters: the question of parentage and lineage. While the Court previously dealt with detailed issues of custody or alimony on the surface, the core of the cases concerned questions of lineage.6 In the present cases, these questions were directly tackled in the context of biological fathers of children born to unmarried parents. In general, matters of child care and custody are particularly difficult for the ECtHR to determine: it is usually the domestic court which has direct and in most cases intensive contact with all of the parties and thus can determine what lies in the child’s best interests.7 However, in the cases of Kautzor and Ahrens, the domestic courts’ margin of appreciation was pre-determined by the German legislator, whose parameters the ECtHR examined indirectly as a result. Biological parentage of a child is closely linked to the attribution of parental rights. The extent to which the legislator provides for the social family or relies on genetic lineage presents a dichotomy outlining the problems arising in this field of law. This balance is itself heavily influenced by contemporary perceptions of social reality and societal values and is thus susceptible to review and reform. The German system has notably been subject to frequent change and adaption – often triggered by decisions of the FCC and the ECtHR. The present cases, while affirming the domestic courts’ decisions and thus the underlying legal provisions, shed light on these issues and the evolution of biological fathers’ rights under German law. Summary of Relevant German Law: The legal background of the cases before the ECtHR addresses a well-known problem of German family law:8 the biological father who does not bear any legal responsibility for a child can only challenge another man’s established legal paternity if no social or family relationship exists between the child and its legal father under the provisions of Section 1600 (1) No. 2 and (2) No. 4 of the German Civil Code (Bürgerliches Gesetzbuch).9 See Martin Löhnig/Mareike Preisner, Die Reichweite des Einflusses der Rechtsprechung des EuGHMR auf das deutsche Kindschaftsrecht, Zeitschrift für das gesamte Familienrecht (FamRZ) 59 (2012), 489. 6

7

304.

Jochen Abr. Frowein/Wolfgang Peukert, Europäische Menschenrechtskonvention (3rd ed. 2009),

Marina Wellenhofer, Der Europäische Gerichtshof für Menschenrechte und das Vaterschaftsanfechtungsrecht des leiblichen Vaters, FamRZ 59 (2012), 828. 8

9 German Civil Code (Bürgerliches Gesetzbuch), as amended and promulgated on 2 January 2002, Bundesgesetzblatt (BGBl.) I, 42, as amended 20 December 2012, BGBl. I, 2749 (Civil Code).

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Legal entitlement to be considered a ‘parent’ is set out in Sections 1591 and 1592 of the Civil Code. According to Section 1592 of the Civil Code, the father of a child is legally the man who was married to the mother of the child at the date of the birth, the man who acknowledged paternity, or the man whose paternity was legally established by the court. A man can acknowledge paternity with the consent of the child’s mother pursuant to Section 1595 of the Civil Code. However, he cannot acknowledge paternity where another man has already legally acknowledged the child as his own, as contained in Section 1594 (2) of the Civil Code. A man who wants to acknowledge paternity of a child that already has a legal father has the option to contest the other man’s paternity pursuant to Section 1600 of the Civil Code. The cases in question centre on the prerequisite to contest paternity: it requires that there is no social and family relationship between the legal father and the child pursuant to Section 1600 (2) of the Civil Code. A social and family relationship means that the legal father has or had “actual responsibility for the child at the point in time,” which is assumed when he is either married to the mother or “lived together with the child for a long period in domestic community” according to Section 1600 (4) of the Civil Code. Consequently, the applicant challenging legal paternity carries the burden of proof that, despite being married to the child’s mother, the legal father does not bear responsibility for the child. This reflects the practice of the FCC regarding Article 6 of the German Basic Law (Grundgesetz),10 which protects marriage and family life. The FCC’s jurisprudence states that, while the social family is granted special protection under Article 6 (1) of the Basic Law, the biological father’s interest to gain custody enjoys lesser protection under the second paragraph of Article 6 of the Basic Law.11 However, the requirement that no social relationship exists between the legal father and the child is exceptionally hard to prove in cases where biological lineage differs from legal paternity. In cases where the mother and the legal father are married, the biological father not only bears the burden of proof, but even more so has to overcome the legal presumption that a social relationship exists. Summary of Facts and Decisions: The applicant in Ahrens v. Germany, Mr. Ahrens, conducted a relationship with a woman and maintained sexual contact with her after 10 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 11 July 2012, BGBl. I, 1478 (Basic Law). 11

FCC, BVerfGE 78, 38, 49; id., BVerfGE 108, 82, 114.

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the relationship had ended and she had begun a relationship with another man. Nine months after their last sexual encounter the woman gave birth to a child. With the woman’s consent, her current partner became the legal father of the child. The applicant subsequently successfully challenged the paternity in court. However, this ruling was overturned on appeal. The appellate court stated that the court of first instance had not paid sufficient attention to the fact that there existed a social and family relationship between the child and her legal father which continued after the legal father found out that he was most likely not the biological father. The Court concluded that external disturbances should to the largest extent possible be avoided in the child’s best interests and due to the family relationship that already existed.12 The applicant in Kautzor v. Germany was married to the mother, Ms. D. They separated, and a month after their separation she informed him that she was pregnant. They divorced before the baby was born. One year after the birth, Mr. Kautzor stated his interest in acknowledging paternity and being granted access to the child. Subsequently, a second man, with the consent of Ms. D, acknowledged paternity before the responsible authority. Mr. Kautzor instituted proceedings to challenge the other man’s paternity. Ms. D stated that the other man, whom she had married in the meantime, was indeed the biological father of her child. As accepted by Mr. Kautzor during the proceedings, there was a strong social and family relationship between Ms. D’s husband and the child. For this reason the Court denied Mr. Kautzor’s application to order the instigation of genetic testing of the child. Mr. Kautzor’s appeal was rejected for the same reason: a social and family relationship existed between the child and the legal father and the applicant’s rights were not violated. The appellate court held that it was within the legislator’s rights to let the interests of the child and the legal family prevail over the right of the biological father to have his paternity established. The Court also stated that the child already had a legal father and it was appropriate to determine legal paternity in accordance with the mother’s consent.13 After the FCC decided not to admit either of the applicants’ cases, both independently instituted proceedings before the ECtHR, claiming violations of Article 8 (the right to respect for private and family life) and Article 14 (the prohibition of discrimi12

For a more comprehensive statement of the facts, see ECtHR, Ahrens (note 4), paras. 5–21.

13

For a more comprehensive statement of the facts, see id., Kautzor (note 5), paras. 5–31.

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nation) in conjunction with Article 8 of the ECHR. They additionally claimed violations of Articles 6 (1) (the right to a fair trial) and 13 (right to an effective remedy) of the ECHR due to the length of the proceedings. The ECtHR conducted a comparative analysis and concluded that there was no consensus amongst the ECHR’s Member States regarding a man’s right to challenge paternity. Whereas in seventeen States the perceived father was generally granted a right to challenge another man’s acknowledged paternity, in nine Member States such a right was not granted. In two of the Member States where there was a right to contest paternity, this was limited to cases where no social and family relationship existed between the child and the legal father.14 In both cases, after a short assessment of the admissibility, the Court first examined a possible violation of the right to family life. It reiterated its previous jurisprudence according to which ‘intended family life’ can also fall under the ambit of Article 8 of the ECHR.15 However, in the case of Ahrens v. Germany, the Court did not find evidence for intended family life, as the applicant’s relationship with the mother had ended a year before the child was born and he had shown no signs of commitment towards the child he perceived to be his until it was born.16 Nevertheless, the Court stated that the determination of biological paternity constituted an important part of the applicant’s personal identity and hence his private life.17 In this regard, the Court’s conclusion is consistent with its prior jurisprudence. In Kautzor, where the applicant showed interest in the child he perceived to be his a year after the birth but paternity was not factually established, the Court also focussed on the possible violation of his private life as the relationship between Mr. Kautzor and the child did not amount to a family relationship.18 In both cases the Court held, in line with its prior case law, that the interest of the child was of paramount importance and, depending on the circumstances of the case, See id., Ahrens (note 4), paras. 27–28; id., Kautzor (note 5), paras. 37–39. For a comparative analysis see Nina Dethloff, Familienrecht (30th ed. 2012), 319. 14

See ECtHR, Pini and Others v. Romania, Judgment of 22 June 2004, ECHR 2004-V, 297, 333 et seq., paras. 143 and 146. 15

16

Id., Ahrens (note 4), para. 59.

17

Ibid., para. 60.

18

Id., Kautzor (note 5), paras. 62–63.

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could override the legal parents’ interests and those of potential legal parents.19 The German provision according to which a man who acknowledged paternity with the consent of the mother was considered the legal father of the child was deemed reasonable and fell within the gambit of Member State margin of appreciation in Kautzor, as long as the biological father’s rights were ‘sufficiently’ safeguarded.20 The ECtHR then went on to examine whether the German provision according to which paternity of another man can only be challenged by the biological father if no social and family relationship between the legal father and the child exists was in line with the ECHR. The Court held that where an important facet of one’s identity is at stake, the Member States’ margin of appreciation is narrowed. However, when there is no consensus amongst Member States regarding either the importance of the issue or the best way to ensure protection of the rights involved, the margin of appreciation becomes wider.21 While there is a tendency amongst Member States to grant the biological father a right to challenge in a situation similar to the case in question despite another man’s established social and family relationship to the child, this cannot be described as a consensus. The ECtHR’s jurisprudence suggests that the biological father should generally not be precluded from assuming paternity for the child per se unless it is in the child’s interest to do so, but it does not follow that he has to be granted a right to challenge the paternity of another man. As opposed to Anayo v. Germany,22 where the Court held that the domestic court had not fairly balanced the competing rights when denying Mr. Anayo access to his children without determining whether this was in the children’s best interests, the immediate cases focussed on legal status, resulting in a wider margin of appreciation as compared to the contact rights scenario. The Court held that the ECHR imparted an obligation on Member States to enquire whether or not it is in the child’s best interests to establish a relationship with their biological father.23 Accordingly, a biological father should generally not be 19

Id., Ahrens (note 4), para. 63; id., Kautzor (note 5), para. 64.

20

Id., Kautzor (note 5), para. 68.

21

Id., Ahrens (note 4), paras. 68 et seq.; id., Kautzor (note 5), paras. 70 et seq.

Id., Anayo v. Germany, Judgment of 21 December 2010, Application No. 20578/07, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 22

23

Id., Ahrens (note 4), para. 74; id., Kautzor (note 5), para. 76.

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precluded from having his paternity legally certified unless there are reasons in the child’s best interests that speak against it. The Court commented in Ahrens that, were the applicant successful in establishing legal paternity, the parental link between the child and the man who had assumed the role of a parent and with whom the child had strong ties would have been severed. This would have been a further-reaching consequence than the mere establishment of biological paternity for reasons of access and contact to the child.24 Taking these considerations into account and referring in particular to the lack of consensus amongst Member States, the Court concluded that the determination whether the biological fathers should be allowed to challenge paternity in these cases fell within the margin of appreciation of the particular Member State.25 The same was concluded for the decision of the Member State to not allow a certification of a man’s biological paternity independent of a challenge of another man’s legal paternity.26 Evaluation of the Decisions: The cases before the ECtHR are in line with prior decisions of the Court regarding the Member States’ legal provisions on lineage.27 While cases such as Mizzi v. Malta,28 Shofman v. Russia29 and Rózanski v. Poland30 dealt with the legal father’s right to contest and rescind legal parentage, cases such as Kroon and Others v. Netherlands31 established that biological fathers who lived in a social family with the child cannot be barred entirely from becoming the child’s legal father.32 However, in the case of Shavdarov v. Bulgaria33 the Court had already

24

Id., Ahrens (note 4), para. 67.

25

Ibid., para. 75; id., Kautzor (note 5), para. 78.

26

Id., Kautzor (note 5), para. 79.

27

Wellenhofer (note 9), 828.

Id., Mizzi v. Malta, Judgment of 12 January 2005, Application No. 26111/02, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 28

Id., Shofman v. Russia, Judgment of 24 November 2005, Application No. 74826/01, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 29

Id., Rózanski v. Poland, Judgment of 18 May 2006, Application No. 55339/00, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 30

31

Id., Kroon and Others v. Netherlands, Judgment of 2 October 1994, Series A, No. 297-C.

However, the particularity of that case was that at the time when the applicant sought to attain the legal status, the whereabouts of the legal father were unknown, so that the applicant had no other means than to directly challenge the legal father’s position. In particular, the Court rejected the govern32

632 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

denied a father of three children a right to challenge the paternity of the mother’s husband – despite the applicant having raised the children for several years as a single father and thus having enjoyed the protection of family life under Article 8 of the ECHR.34 This was, according to the Court, due to the margin of appreciation of Member States regarding the regulation of family life.35 The Court held in Shavdarov that the domestic legislator’s moral, ethic, social or religious considerations were not to be replaced by those of the Court.36 The difference in this case was that the applicant, according to the Court’s view, would have been entitled to other domestic means such as attaining legal guardianship or adoption before challenging the legal paternity – hence, the established social family made it reasonable to explore and exhaust other legal options to maintain de-facto family life.37 There is reason to suggest, however, that German family law would be more favourable to applicants in a situation similar to the circumstances in Shavdarov, since hardly any relationship between the legal father and the children existed in that case. These decisions shed light on the ECtHR’s balance of biological fathers’ rights and the rights of the legal parents to non-interference. In Anayo v. Germany and Schneider v. Germany, the ECtHR considered the question of access to a child, namely a biological father’s right to access, an area subject to a strict scrutiny test regarding the fair balance of rights.38 However, regarding a right to challenge the legal father’s position, the Court is by far more restrictive, irrespective of whether a social family exists (such the case in Kroon and Others and Shavdarov) and apparently considers such right only as a means of ‘last resort’. ment’s argument that the applicant could marry the child’s legal mother (with whom he already lived in a social family) as incompatible with Art. 8 of the ECHR, see ECtHR, Kroon (note 31), para. 68. 33 ECtHR, Shavdarov v. Bulgaria, Judgment of 21 December 2010, Application No. 3465/03, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 34

Ibid., para. 7.

35

Ibid., para. 46.

36

Ibid., paras. 46 et seq.

37

Ibid., paras. 52–54, 56.

ECtHR, Anayo (note 22), para. 66; ECtHR, Schneider v. Germany, Judgment of 15 September 2011, Application No. 17080/07, para. 94, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). Georg Ress considers this a test of tenability, see Georg Ress, Der Europäische Gerichtshof für Menschenrechte als pouvoir neutre, ZaöRV 69 (2009), 289, 300. For a detailed analysis of the Anayo judgment, see Tobias Thienel, Human Rights of Biological Fathers v. Hard and Fast Rules, German Yearbook of International Law (GYIL) 53 (2010), 963. 38

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The ECtHR’s approach adds more flexibility and strengthens the position of the biological father, with two major caveats. Firstly, the biological father cannot challenge another man’s legal paternity if a social relationship exists, irrespective of the applicant’s ‘fault’ or lack thereof. Secondly, regarding the right to access, the Court has determined that the extent of such a right is subject to the well-being of the child, and therefore can only be determined on a case-by-case basis, primarily before municipal courts. The Court reiterated this approach regarding a right of access to the child when it rejected the application in Hülsmann v. Germany, where the domestic courts had found that contact between the child and the biological father would not be beneficial to the child’s well-being.39 The Evolution of German Law on Parentage in Light of the ECtHR: In the Shavdarov case, the ECtHR explicitly acknowledged that the legislative choices regarding lineage and custody were particularly prone to various moral, ethical, social or religious considerations.40 While this statement was not reiterated in the present decisions, the ECtHR’s strong emphasis on the margin of appreciation of Member States, and the widely differing respective practice, make it necessary to elaborate on the evolution of the German system. This legal background reflects that German family law, while acknowledging that the social family may extend beyond legal parents (e.g., grandparents), is not necessarily apt to deal with cases where legal and biological parentage differ.41 The legal provisions are built on the premise that the legal parent’s right prevails over a third person’s access rights both regarding the extent of such rights and their procedural implementation. This is combined with far-reaching limitations on determining biological descent in court, reflecting the idea that child care and well-being is, first and foremost, the responsibility of the legal parents. However, the rights of parents are perceived as

ECtHR, Hülsmann v. Germany, Decision of 18 March 2008, Application No. 33375/03, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 20 February 2013). 39

40 “La Cour reconnaît que (…) les choix du législateur national (…) sont délicats à opérer et qu’ils peuvent être influencés par des considérations d’ordre différent – moral, éthique, social ou religieux,” see id., Shavdarov (note 33), para. 46. 41 This article does not explore the problems of social and biological motherhood. For a more comprehensive examination regarding parentage in German family law, see Dethloff (note 14), 285 et seq.

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dienendes Recht, i.e. a right whose main purpose is a serving function to another goal: the well-being of the child.42 The strong position of the mother of a child born to unmarried parents dates back to the reform of German family law in 1969: until then, a child born out of wedlock was explicitly not legally related to its biological father under then Section 1589 (2) of the Civil Code. Even the mother did not gain full custody; rather the child was a priori put under guardianship in all matters of legal representation and regarding questions of property.43 With the Nichtehelichengesetz of 1969,44 the legislator strengthened the unmarried mother’s position to the extent that she gained custody of the child, while any parental responsibility of the father remained excluded. Giving its reasons, the legislator claimed that legal provisions could mitigate the (perceived) difficult situation of children born to unmarried parents, presuming that many fathers would refuse contact with either the mother or the child, and that many would contest paternity. From that perspective, the legislator argued that given the close relationship between a child and the mother in particular during the first years of childhood, the legal responsibility for the child could only be assigned to the mother.45 Even though Article 6 (5) of the Basic Law demands the equal treatment of children born out of wedlock, in 1981 the FCC still accepted this legal situation. Despite the fact that the associated social stigma had been massively eroded, the Court considered the measure to be within the legislator’s margin of appreciation since families not founded on marriage were considered to be less stable and thus merited different treatment.46 In later decisions, this attitude changed – however, it was not until 1995 that the FCC explicitly acknowledged that the biological father had a right of custody under Article 6 (2) of the Basic Law. Nevertheless, the FCC maintained that the legislator was allowed to take into account the factual situation in various non-marital family constellations.47 Accordingly, respective provisions underwent further reform in 1998, 42

Martin Lipp, Elterliche Sorge für das nichteheliche Kind, FamRZ 45 (1998), 65, 66.

For a detailed review of German family law before the 1998 reform, see ibid., 67 et seq.; Dethloff (note 14), 280 et seq. 43

German Statute Concerning Children Born to Unmarried Parents (Gesetz über die rechtliche Stellung der nichtehelichen Kinder), 19 August 1969, BGBl. I, 1243. 44

45

German Parliamentary Documentation (Bundestagsdrucksachen), V/2370, 20 (1969).

46

FCC, BVerfGE 56, 363 et seq.

47

Id., BVerfGE 92, 158 et seq.

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with the result that, while the mother was still the primary bearer of responsibility for the child, joint declarations of custody were now permissible. Still, the strong position of the mother remained. Only in 2003 did the FCC even acknowledge the biological father’s right of access to the child,48 and in cases where an established legal paternity which did not pertain to the biological father existed, the biological father remained ‘legally non-existent’.49 The ECtHR’s jurisprudence in Anayo and Schneider thus added necessary momentum to the further evolution of biological fathers’ rights under German law. The contemporary provisions thus offer a twofold approach: while the biological father can gain access to the child under Section 1685 (2) of the Civil Code,50 the decision not to enable him to challenge legal paternity if the child lives in a social family with its legal father restricts his rights in accordance with domestic constitutional and international human rights law. This focus on access rather than contesting legal parentage seems, at first glance, to have more impact on the child than a change of legal status, which younger children in particular would hardly notice.51 However, the current system also means that the status of an existing social family is respected. If the provisions of German family law allowed biological fathers to challenge an established legal paternity despite an existing social family, the courts would have to determine – bearing in mind the ‘Grundnorm’ of family law, the well-being of the child – all the consequences that a transfer of custody to the biological father would have. If the mother is married to the (then former) legal father, the latter would only have a minor or subordinate right of custody (kleines Sorgerecht) which is subject to the consent of his wife and only applies regarding everyday decisions under Section 1687b of the Civil Code. A clear differentiation between everyday life and ‘decisions of grave significance’ (Angelegenheiten von erheblicher Bedeutung) which require the consent of the (now legal and biological) father under Section 1687 (1) cl. 1 of the Civil Code is

48

Id., BVerfGE 108, 82.

See Michael Coester, Stärkung der Rechtsstellung des biologischen Vaters – Sorgeerklärung vor Scheidung der Kindesmutter, Kommentierte BGH-Rechtsprechung Lindenmaier-Möhring (LMK) 2004, 107. 49

50 Read in conjunction with the ECtHR’s respective decisions that such a right must exist even if no social relationship has yet to be established. 51

Wellenhofer (note 9), 831.

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hardly possible.52 It can be assumed that the shift in custodial competence regarding decisions including schooling and medical care could trouble family life. Therefore, an approach that leaves the existing custodial rights in the social family intact, but encourages contact between the child and the biological father, as long as this contact is beneficial for the well-being of the child, appears to be preferable.53 However, it has to be noted that German family law still has to conform to the ECtHR’s decisions in Anayo and Schneider in order to fully live up to this balance. Otherwise, an important aspect would be left out: even though the Court affirmed the German legislator’s decision to protect the legal and social family from the disturbances of a challenge of paternity, the prior decisions clearly state that family law has to enable contact between the child and the biological father, as their relationship constitutes an important aspect of their personality. Conclusion: Over the decades, German family law has frequently developed and adapted to the demands not only of societal change, but more pertinently to the decisions of the FCC and the ECtHR, as well as municipal family courts’ decisions and legislative reform.54 As yet, the biological father as such remains ‘unknown’ in German Civil Law – a circumstance that, for the sake of not only clarification but also compliance with the demands of the ECHR, will hopefully change in the near future. Nevertheless, fixed, absolute legal rights can hardly reflect the complex relationship between a child and his or her legal and biological parents. In particular rights and duties of legal (and also biological) parents towards the child can only be constructed in close connection to the factual bases of each particular case. Further questions remain – however, these appear to be rather detailed: would the reasoning of the court change if the relationship between the child and the legal father was no longer in effect? Does this question have effect on the comparatively short time-limit of the biological father’s right to challenge another man’s legal paternity under Section 1600b (1) cl. 2 of the Civil Code? Regarding the German legislator, beyond the still pending implementation of the Anayo decision, which may also render necessary a clarification as to the circumSee Uwe Diederichsen, Section 1687, in: Otto Palandt/Peter Bassenge/Gerd Brudermüller/et al., Bürgerliches Gesetzbuch (71st ed. 2012), para. 6. 52

53

Wellenhofer (note 9), 831.

54

For an overview, see Dethloff (note 14), 11 et seq.

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stances under which a potential biological father can, in order to initiate proceedings to gain access to a child, determine genetic descent in court – a process that is currently still linked to challenging an established paternity.55 Comparing the decisions of the German legislator, German domestic courts and the ECtHR, all three share the same perspective: the well-being of the child constitutes the matrix on which provisions of child custody and parentage are built.56 Complex scenarios will always challenge abstract legal provisions – and so will the demands of a changing society whose social mores and values undergo constant change and develop in ways that do not correspond to what the law perceives as the regular constellation. In the end, the parties have to accept the reality that the legislator’s balancing of conflicting rights is not suited to fix any disputes that entail complicated social and intimate relations.

Cf. Sec. 1598a of the German Civil Code (note 9). However, the ECtHR held in Kautzor that, bearing in mind respective practice of Member States, the ECHR does not demand the establishing of biological paternity without any link to the child’s status, see ECtHR, Kautzor (note 5), para. 79. 55

56

Löhnig/Preisner (note 6), 489, 491.

The ECHR’s Rulings in von Hannover v. Germany (No. 2) and Axel Springer AG v. Germany: Rebalancing Freedom of the Press with the Respect for Privacy RAINER GROTE(

Introduction: In two important judgments handed down on 7 February 2012, the Grand Chamber of the European Court of Human Rights (ECtHR) clarified the criteria for the balancing of the right of publishing companies to freedom of expression under Article 10 of the ECHR1 against the right of celebrities to respect for their private life pursuant to Article 8 of the ECHR. In doing so, it addressed the criticism that the decision of the Third Section in von Hannover v. Germany (No. 1)2 had tipped the balance too heavily in favour of the personality rights of such public figures at the expense of freedom of the press. It also succeeded in putting to rest, at least temporarily, the controversy with the powerful German Federal Constitutional Court (FCC) (Bundesverfassungsgericht) on the limits of press freedom with regard to the publication of articles and photographs from the private life of well-known individuals. By contrast, the Court failed to develop a coherent approach to the application of the margin of appreciation in cases involving a conflict between freedom of the press and the personality rights of persons whose private life is subject to potentially intrusive press scrutiny. Background to the Cases: In its decision von Hannover v. Germany (No. 1) of 2004 the Third Section of the ECtHR had rebuffed the German courts, including the Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and Adjunct Professor of Law at the University of Göttingen. (

1 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 2 European Court of Human Rights (ECtHR), von Hannover v. Germany (No. 1), Judgment of 24 June 2004, RJD 2004-VI, 41.

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FCC, for not providing sufficient protection to the applicant, Caroline of Monaco, the older daughter of Prince Rainier III of Monaco, against intrusive press reporting on her private life. In particular, the Court criticised the concept of a figure of contemporary society par excellence only being able to claim privacy protection in secluded places out of the public eye. This concept had been used by the Federal Court of Justice (FCJ) (Bundesgerichtshof) with the approval of the FCC to strike a balance between the freedom of the press and the personality rights of the individual concerned as being too narrow and too inflexible to meet the Member States’ positive obligations under Article 8 of the ECHR to provide for an effective protection of the right to respect for private life. Merely qualifying a person as a figure of contemporary society par excellence, as the German courts had done in the case of Caroline of Monaco, could not justify an intrusion into her private life if that person did not exercise official functions or if the reporting was in no way related to the exercise of the official functions concerned. In these circumstances the reporting had the sole aim of satisfying public curiosity and did not contribute anything to a debate of general interest.3 The FCJ responded to the decision of the ECtHR by modifying its approach to the protection of privacy rights under German copyright law. The Court no longer limited the protection of figures of contemporary society against the publication of photos without their consent to cases in which the photos in question depicted the person in a secluded place to which he or she had retired with the objectively recognisable aim of being left alone. While it was appropriate to adopt a broad reading of freedom of the press which did not exclude entertaining contributions per se, it was nevertheless necessary to assess the contribution made by the photograph or article concerned to a debate of general interest when weighing the freedom of the press and the right to information of the public under Article 5 of the German Basic Law (Grundgesetz)4 and Article 10 of the ECHR against the right to respect for private life of the person portrayed, as guaranteed by Articles 1 (1) and 2 (1) of the Basic Law and Article 8 of the ECHR. Even where persons who had hitherto been qualified as figures of contemporary society par excellence were concerned, consideration had to be given to the question whether the report contributed to a factual debate or merely 3

Ibid., paras. 63–66.

German Basic Law (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 11 July 2012, BGBl. I, 1478. 4

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served the purpose of satisfying public curiosity. In cases of a visual portrayal of a wellknown person, the content of the accompanying text had to be taken into account when assessing the informational value of the photo.5 When requested to rule on the concept of protection developed by the FCJ in response to the ruling of the ECtHR in von Hannover v. Germany (No. 1), the FCC held that the new approach was in conformity with the Basic Law, and especially with the requirements of freedom of the press and information guaranteed by Article 5 of the Basic Law. In particular, it ruled that its earlier judgment on the concept of protection previously applied by the FCJ merely meant that this concept had been in accordance with constitutional requirements. However, this did not prevent the FCJ from dispensing with the legal concept of figure of contemporary society and establishing a new concept centred on the informational value of the photo or article concerned and its contribution to a debate of general interest.6 Facts of the cases: The conformity of the new concept of protection developed by the German courts with the requirements of the ECHR was tested in the two cases decided by the Grand Chamber on 7 February 2012. The applicants in the first case, Princess Caroline von Hannover and her husband Prince Ernst August von Hannover, brought proceedings in the German courts for an injunction restraining further publication of three photographs which had been taken without their consent during skiing holidays between 2002 and 2004. The injunction was granted by the Hamburg Regional Court (Landgericht Hamburg), but lifted by the Hamburg Higher Regional Court (Hanseatisches Oberlandesgericht). On appeal of the applicants, the FCJ, applying the new concept of protection, quashed the judgment of the Higher Regional Court and reinstated the injunction imposed by the Regional Court with regard to the second and the third photograph. However, it dismissed the appeal in respect of the first photo, which showed the applicants taking a walk during a skiing holiday in St. Moritz and was accompanied by an article discussing, among other things, the poor health of Caroline’s father, the late Prince Rainier III of Monaco. The FCJ held that while the photo itself contained no information contributing to a debate of general interest, the same was not true of the accompanying text. The ill-health of 5 Federal Court of Justice (FCJ) (Bundesgerichtshof), Judgment of 6 March 2007, reprinted in: Neue Juristische Wochenschrift (NJW) 60 (2007), 1977, 1979. 6

Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 120, 180, 205, 211.

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Caroline’s father, the reigning Prince of Monaco at the time, was an issue of general interest on which the press could legitimately report, and the photo in question supported and illustrated the information concerned.7 Upon the applicant’s request for constitutional review by the FCC, the latter held the approach developed by the FCJ to the balancing of freedom of the press with protection of personality rights in response to the ECtHR ruling in von Hannover v. Germany (No. 1) and its application to the case at hand to be in conformity with the Basic Law. The FCJ was justified in considering that the reigning prince’s poor health was a subject of general interest and that the press had been entitled to report on the manner in which his children reconciled their obligations of family solidarity with their own private life.8 In the Axel Springer case9 decided on the same day, the applicant was a publishing company which had published in its newspaper Bild (the daily newspaper with the largest circulation in Germany) a front-page article on the arrest of an actor at the Oktoberfest in Munich (the world’s largest beer festival) for illicit possession of cocaine, supplemented by a more detailed article with three photos of the actor on another page. The actor had achieved prominence for playing the role of a police superintendent in a detective series broadcast on a private television station. He obtained an injunction restraining the further publication of the article and the photographs in the Hamburg Regional Court on the ground that his personality rights outweighed freedom of the press and information in the particular circumstances of the case. The injunction on the article was upheld by the Higher Regional Court, although the agreed penalty the company had been ordered to pay for previous publication by the court of first instance was reduced from € 5,000 to € 1,000; the applicant had decided not to challenge the injunction concerning the photos. In the meantime, the newspaper had published a second article on the actor, reporting on his conviction for unlawful possession of drugs and the fine he had been ordered to pay following a full confession. The actor applied for and obtained an injunction restraining the publication of the second article on essentially the same grounds as in the first set of proceedings. The judgment was upheld on appeal. In both cases the FCJ declined to grant leave to appeal to the publishing company on the ground that 7

FCJ, Judgment of 6 March 2007 (note 5), 1980 et seq.

8

FCC, BVerfGE 120, 180 (note 6), 217.

ECtHR, Axel Springer AG v. Germany, Judgment of 7 February 2012, Application No. 39954/08, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 31 October 2012). 9

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they did not raise a question of fundamental importance. The FCC equally declined to intervene, giving no reason for its decisions. Decisions of the Grand Chamber: The Grand Chamber of the ECtHR based its decision in both cases on a balancing of the conflicting rights of freedom of expression and to respect for a private life. In reiterating its jurisprudence, the Court noted that as matter of principle both rights deserve equal respect. In these cases the outcome of the application should therefore not, in principle, vary according to whether it had been lodged with the Court under Article 8 of the ECHR by the person who was the subject of the intrusive or defamatory article or photo, or under Article 10 of the ECHR by the publisher who had published the allegedly offending article or photographs.10 Instead the conflict had to be resolved by a careful weighing of the interests involved on the basis of an established set of criteria. In balancing the conflicting rights, the national courts enjoy a certain margin of appreciation; where the balancing exercise has been undertaken by the national authorities in accordance with the criteria laid down in the ECtHR’s case law, the ECtHR would require strong reasons to substitute its view for that of the domestic courts.11 According to the decisions of the ECtHR in von Hannover v. Germany (No. 2) and Axel Springer AG v. Germany several criteria have to be taken into account when balancing freedom of expression against the right to private life.12 The first and arguably the most essential criterion is the contribution made by the photo or the article to a debate of general interest. Intimately connected with this criterion is the role or function of the person concerned and the nature of his or her activities that are the subject of the report. While the role of ‘public watchdog’ of the press is particularly important with regard to politicians and may even extend to aspects of private life in their case, that role appears less important where other public figures are concerned, especially if the report in question focuses exclusively on their private life.13 The ECtHR, von Hannover v. Germany (No. 2), Judgment of 7 February 2012, para. 106; Axel Springer AG v. Germany (note 9), para. 87. 10

11 Id., von Hannover v. Germany (No. 2) (note 10), para. 107; id., Axel Springer AG v. Germany (note 9), para. 88.

Id., von Hannover v. Germany (No. 2) (note 10), paras. 108–113; id., Axel Springer AG v. Germany (note 9), paras. 89–95. 12

13 Id., von Hannover v. Germany (No. 2) (note 10), para. 110; id., Axel Springer AG v. Germany (note 9), para. 91.

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conduct of the person concerned prior to the publication of the report is important too, although the mere fact of having cooperated with the press on previous occasions does not deprive a person of all protection against intrusive press reporting.14 The way in which the information or photo was obtained is also of relevance. Information must have been obtained in good faith and its factual basis been checked in accordance with the recognised ethics of journalism.15 In the case of photos, on the other hand, regard must be had to the question of whether the photos have been obtained without the consent of the person or by illicit means, the nature of the intrusion and the consequences of the publication for the person concerned.16 Additionally, the way in which the photo or news story is published, whether by a local medium with a small audience or a national newspaper with a large circulation, has to be taken into account.17 Finally, in the case of sanctions imposed on a publication, the nature and severity of the sanction and its ‘chilling effect’ on a free public debate must also be assessed.18 In applying these criteria to the first case, the Court held that the refusal by the German courts to grant an injunction in respect of the first photo did not violate the applicants’ right to respect for private life under Article 8 of the ECHR. It accepted that the photo in question, considered in the light of the accompanying article, did contribute, at least to some degree, to a debate of general interest, namely the discussion of the illness affecting Prince Rainier III, the reigning sovereign of the Principality of Monaco at the time, and the conduct of the members of his family during that illness.19 Nor could it be claimed that the first applicant, the older daughter of Prince Rainier III, was merely an ordinary private individual, since she clearly was not, irrespective of the question whether she assumed any official functions in the strict sense on behalf of the Principality of Monaco.20 The Court therefore concluded that in view of the margin of appreciation enjoyed by national courts in balancing conflicting Id., von Hannover v. Germany (No. 2) (note 10), para. 111; id., Axel Springer AG v. Germany (note 9), para. 92. 14

15

Id., Axel Springer AG v. Germany (note 9), para. 93.

16

Id., von Hannover v. Germany (No. 2) (note 10), para. 113.

Id., von Hannover v. Germany (No. 2) (note 10), para. 112; id., Axel Springer AG v. Germany (note 9), para. 94. 17

18

Id., Axel Springer AG v. Germany (note 9), para. 95.

19

Id., von Hannover v. Germany (No. 2) (note 10), para. 118.

20

Id., von Hannover v. Germany (No. 2) (note 10), para. 120.

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rights, the German judicial authorities had not failed to comply with their positive obligations under Article 8 of the ECHR when they declined to grant an injunction against the publication of the photo in question.21 By contrast, a majority of the Grand Chamber held that the German courts had drawn the wrong conclusions in applying the balancing criteria to the Axel Springer case. In the view of the majority, the actor who had been the subject of the incriminated articles was not a minor figure, but a prominent character in a popular detective series in which he played the leading role, that of a police superintendent whose mission was crime prevention and law enforcement. This fact was such as to increase the public’s interest in being informed of his arrest, despite the relatively minor nature of the offence committed. In addition, the information published by the applicant company had been obtained from the competent authorities investigating the case, namely the police and the public prosecutor’s office, and thus had a sufficient factual basis. Finally, the articles concerned contained mainly information on the circumstances of and the events following the actor’s arrest, without revealing any details of his private life which had no relation to the offense committed. On the other hand, the fines imposed on the publishing company, despite their relatively lenient nature, were nevertheless capable of having a chilling effect on its activities. In the light of these circumstances, the ECtHR concluded that the injunctions amounted to a disproportionate interference with the freedom of expression of the applicant company despite the margin of appreciation enjoyed by the national courts, and thus constituted a violation of Article 10 of the ECHR. Freedom of the Press and Respect for Private Life; the Pendulum Swings Back: Although the decisions of the Grand Chamber of 7 February 2012 do not contain major changes or additions to the established case law on either Article 8 or Article 10 of the ECHR, they have brought important clarifications with regard to the balancing of those two rights in cases concerning press reporting on public figures who are not politicians. In doing so, they have restored the balance, which seemed to have been tilted towards a stronger protection of the privacy rights of celebrities by the ruling of the Third Section in von Hannover v. Germany (No. 1), in favour of the freedom of the press. While the ECtHR affirms that the right to freedom of expression and information and the right to respect for private life deserve equal respect in 21

Id., von Hannover v. Germany (No. 2) (note 10), paras. 124–126.

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principle, freedom of the press prevails in both cases once the balancing criteria are applied to the specific circumstances of the case. What is more, von Hannover v. Germany (No. 2) has restored some of the breathing space for press reporting on well-known individuals who are not politicians (royalty, sports stars, singers etc.) which von Hannover v. Germany (No. 1) seemed to have eliminated: such individuals may now be subjected to even more intrusive reporting as long as a reasonable link with a debate on a topic of general interest can be demonstrated to exist. The Grand Chamber, like the national courts before it, seems to adhere to a generous reading of this requirement. After all, the contested photo did not show the applicant together with her ailing father, Prince Rainier III, but together with her husband on a walk in St. Moritz. The link with the poor of health of Prince Rainier III, the topic of legitimate public interest, was only established by the accompanying text (and another photo on the same page which depicted Prince Rainier III on a walk with his other daughter, Princess Stephanie). It would thus seem irrelevant, in the light of the Court’s ruling in von Hannover v. Germany (No. 2), whether the photo itself is directly linked to a debate of general interest or not, as long as that link is provided by an accompanying text. It is easy to see how this jurisprudence may be used by publishing companies to circumvent the barriers against intrusive forms of photo journalism which the Third Section of the ECtHR had tried to erect in von Hannover v. Germany (No. 1). Strasbourg and Karlsruhe, Compromise instead of Confrontation: Equally important, the Grand Chamber used the von Hannover v. Germany (No. 2) case to defuse the conflict with the FCC which had loomed large since the ruling of the Third Section in von Hannover v. Germany (No. 1). In its decision in the Görgülü case,22 which was handed down a few weeks after von Hannover v. Germany (No. 1), the FCC set out its view of the relationship between the Strasbourg system and the national system of fundamental rights. This provided for a larger role of national courts in the demarcation of conflicting fundamental rights than the ECtHR had seemed to admit in von Hannover v. Germany (No. 1).23 The FCC argued that the 22

FCC, BVerfGE 111, 307.

Christian Tomuschat, The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court, German Law Journal 11 (2010), 513, 522. 23

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Strasbourg decisions had to be fit into the national legal systems to produce concrete legal effects. In cases where the conflicting fundamental rights of several persons were concerned, this could only be done by the careful application of the pertinent rules of national law, including private law, on the balancing of the various rights and interests involved. According to the FCC, the national courts were much better placed than the Strasbourg Court to get this balancing exercise right.24 However, the seemingly imminent clash between the Strasbourg Court and the FCC has been averted in the eight years since the ECtHR’s ruling in von Hannover v. Germany (No. 1). Both sides have been willing to use the inherent flexibility of the method of balancing of rights to prevent an open conflict. The first, and probably the most important step in this direction was taken by the FCJ when it abandoned its previous concept of protection which had centred on a narrowly defined ‘secluded space’ in the case of figures of contemporary society par excellence (see above). It replaced this with a more flexible approach which stressed the importance of the ‘informational value’ of the article or photo in the balancing process. The greater the informational value for the general public, the more the protected interests of the person concerned must yield to the interest of the public to be informed. Conversely, the lower the informational value for the general public, the stronger the need to protect the personality rights of the person affected.25 The flexibility of this approach allowed both the FCC and the ECtHR to embrace it without formally renouncing their initial positions. First, the FCC reaffirmed that even ‘mere entertainment’ cannot per se be denied all relevance in the formation of opinions. However, it went on to state that a weighing of the competing legal positions is required in these cases, and that in weighing the public interest in information relative to the competing protection of personality rights, the subject matter is of fundamental importance. It therefore held the new concept of protection developed by the FCJ to be constitutionally unobjectionable.26 The Grand Chamber responded in von Hannover v. Germany (No. 2) by relaxing the seemingly uncompromising stance taken in the 2004 decision on the need to protect the privacy of public figures against the intrusive modern media. While it 24

FCC, BVerfGE 111, 307 (note 22), 324 et seq.

25

FCJ, Judgment of 6 March 2007 (note 5), 1979.

26

FCC, BVerfGE 120, 180 (note 6), 211–213.

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insisted that the contribution made by the article or photo to a debate of general interest is the primary criterion for balancing freedom of the press with the right to respect for private life, this criterion is supplemented by four or five other factors which also have to be taken into account. More importantly, it conceded that public figures who are not politicians may also be subject to intense press scrutiny, even in respect of certain aspects of their private life; only where the published photos and accompanying articles relate exclusively to details of a person’s private life and have the sole aim of satisfying public curiosity in that respect will the boundary of legitimate press reporting have been transgressed. Not surprisingly, the ECtHR concluded that the approach adopted by the German courts in the case at hand reflected a careful balancing of the conflicting rights, accepting their rather broad understanding of the ‘general interest’ criterion in relation to photos.27 Margin of Appreciation, a Missed Opportunity: The flipside of the flexibility of the method of balancing the rights involved by taking into account multiple factors is its unpredictability and its subsequent negative effect on legal certainty. At the Convention level, these setbacks could be avoided by a stringent application of the margin of appreciation. Unfortunately, the Grand Chamber failed to put forward a coherent approach to the margin of appreciation in the decisions handed down on 7 February 2012. The formula that the ECtHR would require ‘strong reasons’ to substitute its view for that of the domestic courts in cases where the national courts have already undertaken the balancing exercise in accordance with the criteria set forth in the ECHR’s case law suggests a rather lenient approach. However, the Court clearly did not live up to that standard in the Axel Springer case. Instead it chose, as the dissenters rightly point out,28 to second-guess the German courts by re-examining, point by point, the same facts that had already been assessed comprehensively by the national courts in the context in which the events had occurred. The Court thus seemingly has not given up on the attempt to ‘fine tune’ the balancing undertaken by national courts in cases involving Articles 8 and 10 of the ECHR, an approach which might well stir up controversy with domestic courts, especially in Germany, in the future. 27 ECtHR, von Hannover v. Germany (No. 2) (note 8), para. 118, expressly states that the fact that the German courts assessed the informational value of the photo in question in the light of the accompanying article could not be criticised under the Convention.

Id., Axel Springer AG v. Germany (note 7), Dissenting Opinion of Judge López Guerra joined by Judges Jungwiert, Jaeger, Villiger and Poalelungi. 28

The Arrest of G8 Protestors: The Contested Legitimacy of Preventive Detention JULIA MÜLLER(

Introduction: On 1 March 2012 the judgment in the case of Schwabe and M.G. v. Germany1 of the European Court of Human Rights (ECtHR) was handed down, holding that Germany had violated Article 5 and Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).2 The background of the case in question is the G8 summit of Heads of State and Government which was held in Heiligendamm (Rostock) from 6 to 8 June 2007. Already in the run-up, the summit had led to protesting against political decisions and globalisation. On 2 June 2007, only a few days before the summit, serious riots broke out in the centre of Rostock. One thousand policemen and demonstrators were injured, and more than one hundred people were arrested.3 During the following days the atmosphere was tense and among the various judicial instruments applied to secure peace and security was preventive detention. Facts of the Case: On 3 June 2007 the applicants, two young men, were arrested by the police for preventive purposes and had to stay in detention for five days. The applicants had planned to take part in demonstrations against the G8 summit and drove in a van to Rostock. In the car park in front of the Waldeck prison, which is located approximately ten kilometres outside of Rostock, the van caught the attenResearch Associate and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. (

1 ECtHR, Schwabe and M.G. v. Germany, Judgment of 1 December 2011, available at: http:// hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-107703 (accessed on 28 December 2012). 2 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR). 3 F.P./F.A.Z./FAZ.NET, Fast 1000 Verletzte bei G-8-Protesten – Veranstalter geben Fehler zu, FAZ.NET, 3.6.2007, available at: http://www.faz.net/-gpf-uutv (accessed on 29 October 2012).

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tion of the police. The police checked the identity of the applicants and, in searching the van, found banners bearing the inscriptions ‘freedom for all prisoners’ and ‘free all now’.4 The police arrested the applicants and it appears that the banners were seized.5 On 4 June 2007 the District Court of Rostock (Amtsgericht Rostock) ordered the applicants’ detention until 9 June 2007 at the latest. The order was based on Sections 55 (1) cl. 2 (a) and 56 (5) of the Mecklenburg Western-Pomerania Public Security and Order Act (PSOA) (Gesetz über die öffentliche Sicherheit und Ordnung in Mecklenburg-Vorpommern).6 It provides that a person may be detained if it is indispensable in order to prevent the imminent commission or continuation of a criminal offence. The assumption that a person will commit or aid and abet such an offence may be based on the fact that the person announced or incited the commission of the offence or carries banners or other items containing such incitement (Section 55 (1) cl. 2 (a) of the PSOA). The District Court of Rostock reasoned its order with the argument that the applicants were standing in front of Waldeck prison with objects calling for the liberation of prisoners. These findings were confirmed by the Regional Court of Rostock (Landgericht Rostock) on 4 June 2007.7 Further appeals were dismissed on 7 June 2007 by the Higher Regional Court of Rostock (Oberlandesgericht Rostock).8 It is crucial that the Higher Regional Court of Rostock diverged from the reasoning of the lower courts. In the Court’s view the police force was entitled to assume that the applicants intended to drive to Rostock, display the banners at the demonstration and incite violent demonstrators to liberate detainees.9 The applicants contested the decision with constitutional complaints but the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) declined to consider the 4

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 12.

5

Ibid.

The Mecklenburg Western-Pomerania Public Security and Order Act (Gesetz über die öffentliche Sicherheit und Ordnung in Mecklenburg-Vorpommern), 25 March 1998, GVOBl. M-V 1998, 335, as amended on 9 May 2011, GVOBl. M-V 2011, 246; District Court of Rostock (Amtsgericht Rostock), Decision of 4 June 2012 (unpublished); See ECtHR, Schwabe and M.G. v. Germany (note 1), para. 13. 6

7

Regional Court of Rostock (Oberlandesgericht Rostock), Decision of 4 June 2007, 8 T 1/07.

Higher Regional Court of Rostock (Oberlandesgericht Rostock), Decision of 7 June 2007, 3 W 83/07, reprinted in: Neue Justiz 61 (2007), 420. 8

9

Ibid., para. 11.

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complaints without giving reasons.10 Criminal proceedings for having incited others to free prisoners were never instituted against the applicants.11 Decision of the ECtHR: After having clearly stated that an action for damages against a State is not a remedy that has to be exhausted when the lawfulness of detention is questioned, the ECtHR examined the violation of Article 5 and Article 11 of the ECHR. When interpreting Article 5 of the ECHR, the spirit and purpose of the provision, namely the prevention of arbitrary arrest, must be borne in mind.12 Article 5 of the ECHR contains an exhaustive list of permissible grounds for deprivation of liberty and the latter is unlawful if it does not fall within one of these grounds.13 Due to Germany’s argumentation, three justifications for the preventive detention had to be discussed: arrest or detention to prevent his committing an offence (Article 5 (1)(c) of the ECHR), detention in order to secure the fulfilment of any obligation prescribed by law (Article 5 (1)(b) of the ECHR) and detention after conviction by a competent court (Article 5 (1)(a) of the ECHR). Since it is uncontested between the parties that the applicants had not already committed a criminal offence by possessing the banners, only the second alternative of Article 5 (1)(c) of the ECHR had to be considered. The provision stipulates that the deprivation of liberty may be justified “when it is reasonably considered necessary to prevent his committing an offence.” The State may arrest someone to prevent a ‘concrete’ and ‘specific’ offence regarding the circumstances as place and time of its commission and its victims.14 However, can the offence be seen as sufficiently conFederal Constitutional Court (Bundesverfassungsgericht), Decision of 6 August 2007, 2 BvR 1521/07, 2 BvR 1520/07. 10

11

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 34.

ECtHR, Guzzardi v. Italy, Judgment of 6 November 1980, Series A, No. 39, para. 102; ECtHR, M. v. Germany, Judgment of 17 December 2009, para. 89, available at: http://hudoc.echr.coe.int/sites/ eng/pages/search.aspx?i=001-96389 (accessed on 28 December 2012). 12

See, inter alia, ECtHR, Guzzardi v. Italy (note 12), para. 96; id., Witold Litwa v. Poland, Judgment of 4 April 2000, para. 49, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i= 001-58537 (accessed on 28 December 2012); id., Saadi v. the United Kingdom, Judgment of 29 January 2008, para. 43, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-84709 (accessed on 28 December 2012). 13

ECtHR, Guzzardi v. Italy (note 12), para. 102; id., Ciulla v. Italy, Judgment of 22 February 1989, Series A, No. 148, para. 40; id., Shimovolos v. Russia, Judgment of 21 June 2011, para. 54, available at: 14

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crete and specific when the German courts did not come to the same conclusion regarding the circumstances of the planned offence in question? That was one of the crucial questions the ECtHR had to deal with. The District and Regional Courts considered that the applicants intended to incite others to free prisoners detained in Waldeck prison, while the Higher Regional Court of Rostock considered that the applicants planned to drive to Rostock, take part in the demonstrations and incite other demonstrators to liberate prisoners by force. These differences in the reasoning show clearly that the time and place of the planned offence were not identifiable without doubts. The ECtHR placed emphasis on this inconsistency and considered it as the first key argument.15 Furthermore, Article 5 (1)(c) of the ECHR incorporates the principle of proportionality. Although the wording of the provision does not specifically mention proportionality, it is a well-established principle.16 That means that there must be a proportionate balance between the means employed and the aim achieved.17 The ECtHR doubted that the five-day detention was necessary and argued that it would have been sufficient to seize the banners and prevent the applicants from inciting others to liberate prisoners. The detention was not the measure least burdensome to the individual’s rights. Thus, the detention was not justified under Article 5 (1)(c) of the ECHR.18 This finding can be singled out as the second key argument. In addition to these findings, the ECtHR referred to another requirement, the ‘context to a criminal proceeding’.19 According to the ECtHR’s long-established case law, detention is only lawful under Article 5 (1)(c) of the ECHR if the detention is related to a proceeding that could lead to a conviction for a criminal charge.20 Yet the http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-105217 (accessed on 28 December 2012); id., M. v. Germany (note 12), paras. 89, 102. 15

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 77.

16

See Claire Macken, Counter-terrorism and the Detention of Suspected Terrorists (2011), 56.

See Yutaka Arai-Takashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002), 14. 17

18

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 80.

19

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 79.

See, inter alia, ECtHR, Ječius v. Lithuania, Judgment of 31 July 2000, para. 50, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58781 (accessed on 28 December 2012); id., Ciulla v. Italy (note 14), para. 38; id., Epple v. Germany, Judgment of 24 March 2005, para. 35, 20

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ECtHR did not find it necessary to elaborate on this point and respond to the parties’ detailed arguments since it had already found the detention to be disproportionate.21 According to Article 5 (1)(b) of the ECHR the deprivation of liberty is permissible if a person does not comply with the lawful order of a court or to “secure the fulfilment of any obligation prescribed by law.” The wording is wide and leaves space for interpretation. To stay in compliance with the rule of law (Rechtsstaatsprinzip), the meaning of this sub-paragraph has previously been narrowed down by the ECtHR: the obligation which he has failed to satisfy has to be specific and already incumbent on him.22 Furthermore, the detention must not have a punitive character but only secure the fulfilment of an obligation.23 The administrative internment to compel someone to discharge his general duty of obedience to law is not justified.24 The ECtHR held that the respondent’s argument concerning the applicants not having complied with an obligation could not succeed since the obligation was non-existent. Neither an obligation to report to a police station in their town of residence nor a prohibition from entering a certain area was imposed on the applicants. If there was no obligation, the applicants cannot have failed to comply with it.25 This is a conclusion which must be derived from the rule of law. Furthermore, the duty not to commit an offence in the imminent future (in this case the incitement of others to liberate prisoners) cannot be considered ‘as sufficiently concrete and specific’ as long as there are no specific measures ordered.26 The applicants’ detention also could not be justified under Article 5 (1)(b) of the ECHR. Finally, according to Article 5 (1)(a) of the ECHR, the lawful detention of a person is permissible after conviction by a competent court. ‘Conviction’ is interpreted to be the finding by a competent court that someone is guilty of committing an offence, as available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-68623 (accessed on 28 December 2012). 21

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 79.

ECtHR, Engel and Others v. The Netherlands, Judgment of 8 June 1976, Series A, No. 22, para. 69; ECtHR, Guzzardi v. Italy (note 12), para. 101; ECtHR, Ciulla v. Italy (note 14), para. 36. 22

ECtHR, Gatt v. Malta, Judgment of 27 July 2010, para. 46, available at: http://hudoc.echr.coe. int/sites/eng/pages/search.aspx?i=001-100190 (accessed on 28 December 2012). 23

24

ECtHR, Engel and Others v. The Netherlands (note 22), para. 69.

25

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 81.

26

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 82.

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a result of which the court has imposed the deprivation of liberty.27 Hence, the deprivation of liberty has to follow the conviction in regard of time and has to be based on the conviction.28 The ECtHR points out that no domestic court had found the applicants guilty of committing any criminal offence and that the detention was clearly ordered to prevent the applicants from committing a crime in the future. Therefore, the detention could not be justified under Article 5 (1)(b) of the ECHR.29 The ECtHR also examined Article 11 (1) of the ECHR. This provision protects the right to freedom of peaceful assembly. Restrictions on the right to freedom of peaceful assembly have to be prescribed by law and be necessary in a democratic society in the interest of national security and public safety, for the protection of health or morals, or for the protection of the rights and freedoms of others.30 Only peaceful participants are protected by Article 11 of the ECHR.31 The detention of the applicants lasted for the entire duration of the summit and made it impossible for the applicants to take part in the demonstrations against it even though it could not be proved that the applicants had any violent intention. Thus, the detention was an interference with the right granted in Article 11 (1) of the ECHR.32 The interference was not justified since it failed the requirement of proportionality.33 While taking the tense situation into consideration, the ECtHR decided that there were other less intrusive measures that could have been employed to guarantee the security of the participants at the summit. Seizing the banners would have been less intrusive and thus a proportionate measure.34 Therefore, the ECtHR ECtHR, Schwabe and M.G. v. Germany (note 1), para. 74; ECtHR, Van Droogenbroeck v. Belgium, Judgment of 24 June 1982, Series A, No. 50, para. 35; ECtHR, M. v. Germany (note 12), para. 87; ECtHR, Schwabe and M.G. v. Germany (note 1), para. 74; ECtHR, Guzzardi v. Italy (note 12), para. 100. 27

28

See Björn Elberling, Art. 5, in: Karpenstein/Mayer, EMRK-Kommentar (2012), para. 33.

29

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 83.

30

Art. 11 (2) of the ECHR.

ECtHR, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, Judgment of 2 October 2001, para. 77, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59689 (accessed on 28 December 2012); ECtHR, Galstyan v. Armenia, Judgment of 15 November 2007, para. 101, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83297 (accessed on 28 December 2012). 31

32

ECtHR, Schwabe and M.G. v. Germany (note 1), para. 106.

33

Ibid., para. 118.

34

Ibid., para. 118.

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held that the detention of the applicants violated their right to freedom of peaceful assembly stipulated in Article 11 (1) of the ECHR.35 Evaluation of the Case: In the case Schwabe and M.G. v. Germany the violation of the ECHR is evident. The applicants were arrested for five days for preventive purposes due to the possession of banners with the inscription ‘free all prisoners’ and ‘free all now’. For the police and the German courts these banners were sufficient to suspect the incitement to free prisoners with force. A detailed consideration reveals that essential failures occurred in the assessment of the case by the German courts. The assertion that the banners are an incitement to free prisoners by force is ambiguous since the inscription can be understood in different ways.36 The interpretation that the inscription would be understood by others as an incitement to free all prisoners by force is questionable. On the contrary, it is equally possible that the applicants intended to outline a political statement with the banners: the inscription could have been addressed to the authorities to release detained demonstrators. Furthermore, the violation of the principle of proportionality is apparent. Although it has to taken into account that the atmosphere immediately prior to and during the G8 summit was tense and certainly not easy to handle, the detention of the applicants was not the least burdensome measure that could have been imposed. The banners were seized, and as a consequence the applicants could not display them at any demonstration. This measure is already sufficient to prevent a possible incitement to free prisoners with force. If additional measures were considered necessary, the obligation to report to a police station in the town of residence or prohibit entering a certain area could have been imposed. In contrast, the disproportional detention of the applicants for five days is a grave interference with the right to liberty, and made it impossible for the applicants to take part in further demonstrations against the G8 summit. It is astonishing that the violation of the principle of proportionality was not recognised at any instance of the German court system. The applicants had to rely on the ECtHR. The lower German courts ruled that the detention was proportionate, and the FCC did not give reasons for its decision to decline considering the constitu35

Ibid., para. 119.

36

See ibid., para. 78; Higher Regional Court of Rostock (note 8), para. 12.

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tional complaints. Although declining its consideration is in accordance with Section 93 (d) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz),37 the lack of reasoning given to justify the decision seems questionable. On the one hand, it can be seen as necessary in the light of the FCC’s work load.38 On the other hand, not giving reasoning on the declination could also evoke the impression of arbitrariness of the decision.39 One could even argue that it is a breach of the rule of law: effective legal protection can only be granted if the judiciary is actually subject to public control.40 In fact, especially in the face of political sensitive cases, the option of not giving reason for the declination can be criticised. It leaves the impression that the FCC wanted to avoid taking up a position in a politically disputed area and thus approved the decisions of the lower courts. Moreover, without reasoning the public cannot ascertain if the FCC took possible violations of the ECHR into consideration. This lack of transparency definitively underlines the necessity of having access to the ECtHR as a corrective instance under international law. Apart from the specific case of Schwabe and M.G. v. Germany, the question remains whether preventive detention under the requirements laid out in almost every regional German Security and Order Act can be in accordance with the ECHR in general. The crucial point is the interpretation of Article 5 (1)(c) of the ECHR. Following the interpretation of the ECtHR, detention can only be justified in the context of criminal proceedings. This is implied by Article 5 (3) of the ECHR, which refers to ‘persons charged and detained’.41 This interpretation is not uncontested and not (yet) adopted by all German courts. It remains to be seen to what extent this judgment influences German jurisprudence: in April 2012 the Regional Court of Rostock explicitly referred to Schwabe and M.G. v. Germany in an unconnected judgment.42 The Regional Court stated that it had to consider the jurisprudence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), 11 August 1993, BGBl. I, 1473, as amended on 12 July 2012, BGBl. I, 1501. 37

38 See Karin Graßhof, Section 93 (d), in: Theodor Maunz/Bruno Schmidt-Bleibtreu/Franz Klein et al. (eds.), Bundesverfassungsgerichtsgesetz (38. Ergänzungslieferung 2012), para. 8.

Rüdiger Zuck, Vom Winde verweht, § 93 (d) BVerfG und menschliche Schicksale, Neue Juristische Wochenschrift (NJW)50 (1997), 29, 30. 39

40

Ibid.

41

ECtHR, Stögmüller v. Austria, Judgment of 10 November 1969, Series A, No. 9, 5.

42

Regional Court of Rostock (Landgericht Rostock), Decision of 19 April 2012, 3 T 13/10.

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ECtHR in the context of interpretation of provisions and that the ECHR and its protocols have the status of federal statute.43 In this context the Regional Court took the case law of the ECtHR into consideration and concluded that only detention in connection with a criminal proceeding can be justified under Article 5 (1)(c) of the ECHR. Consequently, the Regional Court held that Sections 55 (1) cl. 2 (b) of the PSOA as state (Land) law would not be applicable according to Article 31 of the German Basic Law (Grundgesetz),44 which stipulates that federal law takes precedent over state law. The judgment of the Regional Court of Rostock is a consequence of the adoption of ECtHR jurisprudence. Unlike the Regional Court of Rostock, in July 2012 the Administrative Court of Hannover (Verwaltungsgericht Hannover) questioned in a judgment the ECtHR case law concerning preventive detention.45 With regards to content, the Administrative Court held that the wording and the interpretation of Article 5 (1)(c) of the ECHR admits detention for preventive purposes. Otherwise, the second alternative of Article 5 (1)(c) would be needless: if a criminal offence were required to have been committed, the first alternative of Article 5 (1)(c) could always be applied concurrently and the second alternative of Article 5 (1)(c) would not have a scope of application. According to the argumentation of the Administrative Court of Hannover this could not have been intended by the ECHR since all justifications are mentioned exclusively.46 Moreover, the Administrative Court elaborated that the case law of the ECtHR has general binding effect on the German courts since the decisions of the ECtHR have to be ‘taken into account’ by all national powers.47 In this respect, the bond of the judiciary to law and justice stipulated in Article 20 (3) of the German Basic Law includes the decisions of the ECtHR.48 However, the Administrative Court held that 43

Ibid., 4.

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. I, 1, as amended on 11 July 2012, BGBl. I, 1478. 44

Administrative Court of Hannover (Verwaltungsgericht Hannover), Judgment of 4 July 2012, 10 A 1994/11. 45

46

Ibid., para. 36; contra, Elberling (note 28), para. 56.

47

Administrative Court of Hannover (note 45), para. 32.

See Stefan Mückl, Kooperation oder Konfrontation? – Das Verhältnis zwischen Bundesverfassungsgericht und Europäischem Gerichtshof für Menschenrechte, Der Staat 44 (2005), 403, 407. 48

658 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

beyond this general duty to ‘take the case law into account’ it was not bound by the ECtHR decisions. The Administrative Court did not overlook the ECtHR decision on German provisions on preventive detention but emphasised that the finding that Article 5 (1)(c) of the ECHR required a correlation to a criminal proceedings was irrelevant to the immediate decision. Therefore, the Administrative Court of Hannover held that the case law did not have legal effect on the proceedings.49 Evidently, the effect of the ECtHR judgement Schwabe and M.G. v. Germany on the German judiciary concerning preventive detention differs enormously from court to court. It remains to be seen if a further case pending at the ECtHR50 concerning a German provision on preventive detention will lead to a homogenous practice and interpretation of law by the German courts.

49

Administrative Court of Hannover (note 45), para. 34.

ECtHR, Application No. 15598/08 (unpublished); see Administrative Court of Hannover (note 45), para. 35. 50

Preventive Detention Revisited Before the ECtHR: O.H. v. Germany STEPHANIE SCHLICKEWEI(

Introduction: In recent years, the European Court of Human Rights (ECtHR) has found the Federal Republic of Germany in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)1 in several cases in relation to the German preventive detention regime.2 The German legal system inter alia enabled a retrospective extension of the initial period of a detainee’s preventive detention.3 When the very first of these judgments on the matter,4 M. v. Germany,5 came into effect in 2010, it was self-evident that the obligations imposed by the ECHR on its contracting States required Germany to act. In respect of the general orientational impact of an ECtHR judgment on parallel procedures, the release of all persons in similar situations was feared to be Germany’s only option in responding to the

( 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, 221 (ECHR). 2 See, e.g., ECtHR, Jendrowiak v. Germany, Judgment of 14 April 2011, Appl. No. 30060/04; id., Kallweit v. Germany, Judgment of 13 January 2011, Appl. No. 17792/07; id., Mautes v. Germany, Judgment of 13 January 2011, Appl. No. 20008/07; id., Schummer v. Germany, Judgment of 13 January 2011, Appl. Nos. 27360/04, 42225/07. All judgments of the ECtHR cited in this article are available via: http://hudoc.echr.coe.int/sites/eng (accessed on 23 January 2013).

Additionally, the German legal system had also presented an alternative known as subsequent preventive detention (nachträgliche Sicherungsverwahrung) since 2004, which could be imposed retrospectively and independently from the initial sentence. The existence of previous periods of preventive detention was not necessary for its imposition. 3

4 The first judgment on the matter of subsequent preventive detention was handed down in 2011, see ECtHR, Haidn v. Germany, Judgment of 13 January 2011, Appl. No. 6587/04. 5

Id., M. v. Germany, Judgment of 17 December 2009, Appl. No. 19359/04.

660 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012

declaration of incompatibility in a manner in conformity with the ECHR.6 However, such a ‘mass release’ failed to materialise as the German Federal Constitutional Court (FCC) (Bundesverfassungsgericht) created a new review procedure resulting in the possibility of upholding at least some of the affected preventive detention orders in its later landmark judgment of 4 May 2011.7 Subsequently, on 24 November 2011, the Strasbourg Court assessed for the very first time8 if Germany’s reaction had met the obligations imposed by the ECHR in the follow-up case of O.H. v. Germany.9 Initial Legal Situation: Initially, German law had only provided for an order of preventive detention with a maximum duration of ten years declared at the time of conviction. However, in 1998, the German Federal Parliament (Bundestag) amended the relevant law, Section 67d (3) of the Criminal Code (Strafgesetzbuch),10 abolishing the time limit and thus opening up the possibility of placement in preventive detention for an indefinite period of time.11 A further amendment to Section 1a (3) of the Introductory Act to the Criminal Code (Einführungsgesetz zum Strafgesetzbuch)12 made the new provisions applicable even in respect of detainees who were sentenced prior to the change in law (Altfälle).13 6 See, e.g., Christoph Grabenwarter, Wirkungen eines Urteils des Europäischen Gerichtshofs für Menschenrechte – am Beispiel des Falls M. gegen Deutschland, JuristenZeitung 65 (2010), 857, 861, 868; Higher Regional Court of Hamm (Oberlandesgericht Hamm), Decision of 12 May 2010, Case No. 4 Ws 114/110, available at: http://www.burhoff.de/insert/?/asp_beschluesse/beschluesseinhalte/1146.htm (accessed on 23 February 2013). 7

Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 128, 326.

In Schmitz v. Germany, Judgment of 9 June 2011, Appl. No. 30493/04 and Mork v. Germany, Judgment of 9 June 2011, Appl. Nos. 31047/04, 43386/08 the ECtHR had already welcomed the judgment of the FCC giving its first remarks. Yet neither judgment touched on retrospective prolonging of the initial period of preventive detention as both concerned preventive detention per se, which does not necessarily constitute a violation of Art. 5 of the ECHR. See also ECtHR, Grosskopf v. Germany, Judgment of 21 October 2010, Appl. No. 24478/03, on the topic of preventive detention per se. 8

9

Id., O.H. v. Germany, Judgment of 24 November 2011, Appl. No. 4646/08.

Criminal Code (Strafgesetzbuch), (at the time) 10 March 1987 Bundesgesetzblatt (BGBl.) I 945, 1160 as amended on 17 December 1997, BGBl. I, 3108. 10

11 Criminal Code (note 10), as amended by the Combating of Sexual Offences and Other Serious Crimes Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten), 26 January 1998, BGBl. I, 160. 12 Introductory Act to the Criminal Code (Einführungsgesetz zum Strafgesetzbuch), 2 March 1974, BGBl. I, 469 as amended (at the time) on 22 December 1997, BGBl. I, 3223. 13 Introductory Act to the Criminal Code (note 12), as amended by the Combating of Sexual Offences and Other Serious Crimes Act (note 11).

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The Case of M. v. Germany:14 M. was a detainee sentenced prior to the 1998 amendment whose placement in preventive detention had been retrospectively extended. When his 2004 constitutional complaint at the FCC was also unsuccessful,15 he lodged an individual complaint with the ECtHR. The Strasbourg Court declared the unlimited retroactive extension of the applicant’s preventive detention as being incompatible with his right to liberty as guaranteed by Article 5 (1) of the ECHR in addition to the general prohibition of retroactive criminal laws contained in Article 7 (1) of the ECHR. The applicant’s continued deprivation of liberty did not fall under any of the grounds of justification exhaustively listed in Article 5 of the ECHR: in contrast to his initial preventive detention16 its continuation did not have a sufficient causal connection to the actual conviction as stipulated by Article 5 (1)(a) of the ECHR.17 Additionally, the risk of the applicant committing further serious offences after his release was not “sufficiently concrete and specific” enough to fall within the ambit of Article 5 (1)(c) of the ECHR.18 Furthermore, M.’s extended preventive detention was not due to him being a person ‘of unsound mind’ within the meaning of Article 5 (1)(e) of the ECHR.19 In terms of Article 7 of the ECHR, the ECtHR classified preventive detention under the German Criminal Code as a penalty (Strafe) within the meaning of the relevant provision of the ECHR.20 The ECtHR founded this classification, inter alia, on the fact that persons in preventive detention also faced a deprivation of their liberty 14 The ECtHR judgment M. v. Germany (note 5) was presented in detail in a previous issue of the German Yearbook of International Law (GYIL), see Felix Bieker/Lorenz Frahm, The Retroactive Abolition of the Maximum Period of Preventive Detention – M. v. Germany, GYIL 52 (2009), 641. Regarding the implementation of the judgment by the German State bodies, see Felix Bieker/Lorenz Frahm, Follow-Up: The Implementation of the ECtHR’s Judgment in the Case M. v. Germany, GYIL 53 (2010), 987. For another critical examination of the topic, see Tobias Thienel, Momentous Judgments against Germany in the European Court of Human Rights: Zaunegger v. Germany and M. v. Germany, GYIL 52 (2009), 647. 15

FCC, BVerfGE 109, 133.

16

ECtHR, M. v. Germany (note 5), para. 96.

17

Ibid., para. 100.

18

Ibid., para. 102.

19

Ibid., para. 103.

20

Ibid., para. 133.

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with conditions barely distinguishable from those imposed during an ordinary prison sentence.21 Therefore prolonging the applicant’s initial preventive detention constituted an additional retrospectively imposed penalty.22 In its judgment of M. v. Germany the ECtHR refrained from delivering any remarks on Article 46 of the ECHR. The response of the Federal Constitutional Court to M. v. Germany:23 Subsequent to the ECtHR’s judgment, M. lodged another constitutional complaint with the FCC. This time the Court found in favour of the applicant, as the FCC held that all of the provisions of the German preventive detention regime, and with it those on the retrospective prolonging of detention, were unconstitutional subsequent to and in line with the ECtHR’s judgment. However, the FCC declared that the provisions should remain in force until the enactment of new legislation by 31 May 2013 at the latest.24 However, in respect of detainees sentenced prior to the 1998 amendment the further continuation of their preventive detention on the basis of the relevant provisions, which were thus on an interim basis still applicable, was set under the condition that the detainees met certain requirements.25 Firstly, there had to be a great and imminent risk that the detained person would commit the most serious crimes of violence or sexual offences due to specific circumstances deriving from their person or their conduct. Secondly, the detainee had to be suffering from a mental disorder within the meaning of the relevant sections of the new German Therapy Detention Act (Therapieunterbringungsgesetz).26 In regard to mental disorder, the FCC emphasised that the ECtHR’s interpretation of persons of unsound mind had to be resorted to.27 21

Ibid., para. 127.

22

Ibid., para. 135.

FCC, BVerfGE 128, 326 (note 7). In 2010 there had already been a response by the German Federal Parliament (Bundestag) restructuring the German preventive detention regime with the Act for the Restructuring of the Law on Preventive Detention and Associated Provisions (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung und zu begleitenden Regelungen), 22 December 2010, BGBl. I, 2300. However, the new provisions were only applicable in respect of offences committed subsequent to the entry into force of the new law on 1 January 2011. Hence the provisions as amended in 1998 were still applicable in respect to former committed offences. 23

24

FCC, BVerfGE 128, 326 (note 7), 332.

25

Ibid., 332.

German Therapy Detention Act (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter), 22 December 2010, BGBl. I, 2300. 26

27

FCC, BVerfGE 128, 326 (note 7), 393 et seq.

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The relevant courts competent for the execution of the detention had to immediately review their cases within one year.28 If the detainee did not meet the relevant requirements set up by the FCC in its judgment, he or she had to be released by no later than 31 December 2011.29 Furthermore, the FCC declared that the judgments of the ECtHR were equivalent to legally relevant change to the factual and legal position (rechtserhebliche Änderung der Sach- und Rechtslage) in regard to the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).30 In light of the Basic Law31 the FCC noted the necessity of interpreting the relevant provisions of the Basic Law in a manner which accommodates public international law (völkerrechtsfreundliche Auslegung), in spite of the fact that the ECHR was incorporated into German legislation as a simple statute ranking below the constitution.32 Therefore the ECHR and the ECtHR’s interpretation of the Convention have to be respected as a source of guidance (Auslegungshilfe) for interpreting the German fundamental rights and rule of law principles.33 Yet according to the FCC this does not imply a schematic parallelisation of the two:34 the evaluation of the Convention must only be considered in as far as this is methodologically reasonable and compatible with the standards of the Basic Law.35 Hence, the FCC based its reasoning on the ECtHR’s judgment with the ECtHR’s interpretation of the two relevant ECHR provisions bringing it almost absolutely in line with the findings of the Strasbourg Court. Yet the FCC continued with its classification of preventive detention as a measure of correction and detention (Maßregel

28 Ibid., 332, 333. In regard to juvenile offenders the time for review was even limited to 6 months, see ibid., 333. 29

Ibid., 333.

Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), 11 August 1993, BGBl. I, 1473, as amended (at the time of the case) on 22 December 2010, BGBl. I, 2248. 30

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended (at the time of the case) on 21 July 2010, BGBl. I., 944. 31

32

FCC, BVerfGE 128, 326 (note 7), 366 et seq.

33

Ibid.

34

Ibid., 366, 370.

35

Ibid., 366, 367, 371.

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der Besserung und Sicherung) not to be qualified as a penalty within the meaning of Article 103 (2) of the Basic Law.36 The Case of O.H. v. Germany:37 In O.H. v. Germany the applicant was also a detainee sentenced prior to the 1998 amendment. He had served his penal imprisonment and an ensuing ten-year period of preventive detention when his initial period of ten years’ preventive detention was retrospectively extended. As all his legal actions were dismissed on German national level, he consequently lodged his application with the ECtHR in January 2008 claiming that the continued deprivation of his liberty violated his Convention rights.38 With O.H. v. Germany being a follow-up case to M. v. Germany, the ECtHR decided in line with its previous landmark judgment, holding that the applicant’s right to liberty as guaranteed by Article 5 (1) of the ECHR and the general prohibition of retroactive criminal laws contained in Article 7 (1) of the ECHR were violated. As a result the Court predominantly39 referred to its fundamental remarks in the precedent case.40 However, especially in light of the FCC’s recent decision, the Strasbourg Court decided to give additional remarks on Article 46 of the ECHR regarding the binding force and execution of judgments, seeking to determine its consequences for Germany in the present case.41 Therefore the ECtHR took into account the FCC’s findings declaring all relevant provisions on the retrospective prolongation of preventive detention as incompatible with the Basic Law.42 Additionally, the Court referred to 36

Ibid., 392, 393 referring to BVerfGE 109, 133 (note 15), 167 et seq.

37

ECtHR, O.H. v. Germany (note 9).

38

Ibid., paras. 1, 3.

The Court departed from its previous decision only in regard to the ECtHR’s previous findings concerning Art. 5 (1)(e) of the ECHR as the Strasbourg Court could not preclude with absolute certainty that the relevant German courts had determined that O.H. suffered from a ‘true mental disorder’. However, since he was no longer being kept in a hospital, clinic or other appropriate institution and was not being offered any sufficient care essential to meet the Convention’s standards contained in Art. 5 (1)(e) of the ECHR by the time that he lodged the individual complaint, his further deprivation of liberty could not be excused. See ECtHR, O.H. v. Germany (note 9), paras. 82 et seq. 39

40 As it had also used to in all other of his multitude judgments concerning the retrospective abolition of the maximum period of preventive detention which had followed since M. v. Germany. 41

ECtHR, O.H. v. Germany (note 9), para. 109.

42

Ibid., para. 117.

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the test constructed by the FCC that imposes the duty on the relevant courts competent for the execution to reconsider without undue delay each of the cases decided prior to the 1998 amendment. Regarding these clear guidelines the ECtHR underlined the particular reference to the interpretation of the notion of ‘persons of unsound mind’ in Article 5 (1)(e) of the ECHR in the ECtHR’s case law.43 Furthermore, the Court considered the relatively short time-frame for the review of the cases, this time also in light not only of the German Basic Law but also the relevant provisions of the Convention to embody “an adequate solution to put an end to ongoing Convention violations.”44 Hence, the Court considered the FCC’s judgment as having entirely implemented the standards set by the precedent and follow-up cases in the German national legal order.45 The Court especially welcomed the FCC’s approach respecting the ECHR with its case law while interpreting the German Basic Law.46 For all of the above reasons, the Court refrained from imposing any specific or general measures on Germany.47 However, the ECtHR did indicate that the standards of the FCC judgment are to be comprehensively implemented and the new review of the detainees sentenced prior to the 1998 amendment has to be realised not only within the given period of time but also in light of the FCC’s and the ECtHR’s case law.48 Evaluation: While the ECtHR ultimately once more found against Germany in O.H. v. Germany, the judgment still constitutes a success for the FCC’s jurisprudence. The ECtHR has finally declared its acceptance of the line Germany has taken to address the multiplicity of judgments concerning the breach of the Convention by the German retrospective preventive detention system.49 In reaching this conclusion, 43

Ibid.

44

Ibid., para. 118.

45

Ibid., para. 118 referring to para. 68.

46

Ibid., para. 68.

Ibid., para. 119. In several of its previous judgments concerning the German preventive detention regime the ECtHR had also already addressed the matter of Art. 46 of the ECHR. However, while the ECtHR had still found the need to declare that it was only ‘at present’ refraining from indicating any specific or general measure in these earlier judgments (see, e.g., ECtHR, Kallweit v. Germany (note 2), para. 83), it now departed from this caveat, stating that in light of the FCC judgment there was no need for this. 47

48

ECtHR, O.H. v. Germany (note 9), para. 119.

By contrast, in some of the similar ECtHR’s judgments on the retrospective abolition of a maximum duration of preventive dating prior to the FCC judgment the ECtHR continued to impress on 49

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the ECtHR gave rather detailed remarks on Article 46 of the ECHR, a practice which it has increasingly undertaken in recent years.50 In the past this has even culminated in the Court conferring itself the competence to give clear orders or at least recommendations on the measures that have to be taken by the affected State to react when a breach of the Convention has been established.51 However, while the ECtHR did not see a need to do so in the present case of O.H., the Court came to this conclusion solely by exercising monitoring functions: in its remarks on Article 46 of the ECHR, while considering the necessity of indicating specific or general measures concerning the execution of the judgment of O.H. v. Germany, the Court incidentally reviewed the status of Germany’s implementation of the obligations resulting from M. v. Germany. In doing so the Court interfered with a competence assigned to the Committee of Ministers of the Council of Europe, which is responsible for the supervision of the implementation of judgments.52 By contrast for a long time the ECtHR had cited exactly this division of competencies by the ECHR as its reason for not delivering more specific instructions on the measures to be taken to implement its judgments.53 The ECtHR was formerly rather notorious for acting in a restrained manner in respect of giving any evaluation on national law,54 which it now seems to be gradually abandoning. Thus the ECtHR’s deviating approach can be scrutinised in respect of the Court possibly exceeding its powers by entitling itself to adapt new competences to itself that were not originally extended to it in the ECHR.55 Yet this time the ECtHR’s course of action with its positive evaluation regarding the status of implementation of the obligations resulting out of M. v. Germany must come in Germany the need to adhere to its obligations resulting from the ECtHR’s preceding judgments in a timely manner. See, e.g., ECtHR, Mautes v. Germany (note 2), para. 66. 50 See George Nicolaou, The New Perspective of the European Court of Human Rights on the Effectiveness of its Judgments, Human Rights Law Journal 31 (2011), 269. 51 See Kristin Rohleder, Grundrechtsschutz im europäischen Mehrebenen-System (2009), 54 et seq.; Marten Breuer, Art. 46, in: Ulrich Karpenstein/Franz C. Mayer (eds.), EMRK, Konvention zum Schutz der Menschenrechte und Grunfreiheiten, Kommentar (2012), 596, paras. 1, 8 et seq.; Jens Meyer-Ladewig, Europäische Menschenrechtskonvention (2011), Art. 46, paras. 4 et seq. 52

See Art. 46 (2) of the ECHR.

53

See Rohleder (note 51), 51.

See, e.g., Joachim Renzikowski, Das Elend mit der rückwirkend verlängerten und der nachträglich angeordneten Sicherungsverwahrung, Zeitschrift für Internationale Strafrechtsdogmatik 6 (2011), 531, 540. 54

55

See Rohleder (note 51), 61 et seq.

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useful for Germany as the preceding few years had been clouded by an ever-increasing number of ECtHR judgments finding Germany to be in violation of the Convention. Therefore at least in this regard the approach has to be appreciated. However, it has to be born in mind that the ECtHR’s acceptance did not materialise without a significant change in the FCC’s jurisprudence. Back in 200456 and as recently as August 200957 the FCC had consistently held in its case law the relevant provisions retrospectively enabling for an abolition of the time-limit of a placement in preventive detention as constitutional. However, by virtue of the ECtHR’s landmark judgment in M. v. Germany the FCC declared the very same norms in the very same case to be incompatible with the German Basic Law.58 This judgment is once again evidence of the significance assigned to the ECHR and the ECtHR’s jurisprudence in domestic German law. Despite the application of ECHR provisions as ordinary German federal law according to Article 59 (2) of the Basic Law ranking below the Basic Law,59 the influence that the Convention exerts on the interpretation of the German constitution is tremendous. However, this would not have been possible without the FCC’s willingness to comply in this respect. Indeed, the FCC seems very anxious to produce conformity with the ECHR.60 Therefore the FCC took the opportunity to recall, refresh and refine its former assertions relating to the status of the ECHR as well as the ECtHR’s jurisprudence in the German legal system.61 Nevertheless, the FCC did not bring its jurisprudence absolutely in line with the ECtHR’s findings but adhered to its interpretation of the notion of penalty within the meaning of Article 103 (2) of the Basic Law. As the FCC had already indicated in its first landmark judgment on the relationship between the ECHR and the Basic Law as of 2004,62 it explicitly clarified once more: the Convention’s impact still comes up 56

FCC, BVerfGE 109, 133 (note 15).

57

FCC, BVerfGK 16, 98.

58

See FCC, BVerfGE 128, 326 (note 7), 329 et seq.

See Thomas Giegerich, Wirkung und Rang der EMRK, in: Rainer Grote/Thilo Marauhn (eds.), EMRK/GG: Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (2006), 61, 81 et seq. 59

60

FCC, BVerfGE 128, 326 (note 7), 366 et seq.

See, e.g., Christoph Grabenwarter, Die deutsche Sicherungsverwahrung als Treffpunkt grundrechtlicher Parallelwelten, Europäische GRUNDRECHTE-Zeitschrift 39 (2012), 507, 508 et seq. 61

62

FCC, BVerfGE 111, 307.

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against limiting factors. There is no need for an absolute parallelisation of the FCC’s and the ECtHR’s respective case law to fulfil the Convention’s standards. Therefore it is sufficient for the German legal system to comply in its result with the standards set out by the Convention as well as by the ECtHR itself. In addition, this was likewise emphasised by both courts. In light of this, it is quite remarkable that the FCC has still managed to create a loophole circumventing an obligation to release all persons in similar situations, as was feared beforehand. Yet the aftermath of the ECtHR’s judgments is well apparent in Germany regardless. Many of the relevant detainees had to be released as they did not meet the FCC’s quite high standards in the new review process of their cases. However, this does not necessarily imply that there is no more risk of further offences being committed by such detainees. The relevant courts have therefore often ordered a long-term police surveillance of those newly released to ensure at least some safety to the public. As these measures are rather taxing on police man-hours63 some of the German States (Bundesländer) have started to use electronic tagging devices as an alternative. The legality of long-term surveillance is already contested,64 but its efficiency has to be as well. This is especially the case in respect to electronic tags as, for example, once more charges of child molestation are being pressed against a former detainee who had been released from detention following the ECtHR’s judgments regarding actions which allegedly happened while he was kept under surveillance via such an electronic device.65 Taking this into account it seems that Germany may be paying a very heavy price for its compliance with the Convention this time. In addition, as the FCC declared all the relevant norms of the German preventive detention regime as unconstitutional, the Federal Parliament is at present undertaking the relevant consultations in order to create a new regime of preventive detention in Germany in conformity with the ECHR. They have placed emphasis on the necessity to implement a sufficient differentiation between preventive detention and penal measures such as prison sentences. 63 See, e.g., Mads Andenas/Eirik Bjorge, Preventive Detention, American Journal of International Law 105 (2011), 768, 771. 64 FCC, 1 BvR 22/12 of 8 November 2012, available at: http://www.bverfg.de/entscheidungen/ rk20121108_1bvr002212.html (accessed on 23 February 2013).

Britta Schultejans, Diskussion entfacht nach Sexualstraftat trotz elektronischer Fußfessel, 10 January 2013, available at: http://beck-online.beck.de/Default.aspx?vpath=bibdata\reddok\becklink\ 1024266.htm&pos=1&lasthit=true&hlwords=#xhlhit (accessed on 3 April 2013). 65

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Thus each German state authority is at the time of writing dealing with the consequences of the ECtHR’s judgment, trying to do justice to detainee’s rights while attempting to uphold citizens’ safety. As this doesn’t seem easy to handle, in the end one can only hope that an adequate solution will be found with the new legislation and that this will respect Germany’s human rights commitments on the international level this time from the offset. It will hopefully stand up to future judicial examination at the ECtHR, therefore preventing government bodies having to tackle such an unsolvable situation in future.

German Measures Against Islamic Extremist Organisation Upheld in Strasbourg: Hizb Ut-Tahrir and Others v. Germany JULIA GLOCKE(

Introduction: In its judgment of 12 June 2012 in the case of Hizb Ut-Tahrir and Others v. Germany1 the European Court of Human Rights (ECtHR or the Court) demonstrated once more that the rights set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or the Convention)2 cannot be deflected from their actual purposes for aims that fundamentally contravene the spirit and the values of the Convention. Article 17 of the ECHR provides a means to prevent an abuse of the rights contained in the Convention. Facts of the Case and its Procedural History: The first applicant, ‘Hizb UtTahrir’ (Arabic for ‘Liberation Party’), describes itself as a “global Islamic political party and/or religious society” which was established in Jerusalem in 1953.3 In the beginning its activities were primarily oriented toward the liberation of Palestine, as its name indicates.4 However, since the 1970s the group’s activities have centred around advocating the overthrow of governments in States with majority Muslim populations in order to create a pan-Islamic State in the form of a Caliphate. Its activities are also characterised by extreme anti-Semitism. While the first applicant is Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. (

1 ECtHR, Hizb Ut-Tahrir and Others v. Germany, Decision of 12 June 2012, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 1 August 2012). 2 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222. 3

ECtHR, Hizb Ut-Tahrir and Others v. Germany (note 1), para. 2.

Guido Steinberg, Der nahe und der ferne Feind: das Netzwerk des islamistischen Terrorismus (2005), 40. 4

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prohibited in all Arab States,5 Germany is the only Member State within the EU that has banned its activities so far. In Germany Hizb Ut-Tahrir focussed mainly on publishing articles and distributing leaflets and other information via the internet or during public events in order to propagate its concerns. It is said to have around 200 supporters in Germany.6 The second applicant is an Austrian national who lives in Germany and had represented the first applicant in court, including on this occasion. The third to seventeenth applicants are members or supporters of Hizb Ut-Tahrir and mostly reside in Germany. Based on a multitude of public statements that were attributable to the first applicant, calling for the elimination of the State of Israel by force and for the killing of its inhabitants, on 10 January 2003 the Federal Ministry of the Interior (Bundesministerium des Innern) banned the first applicant’s activities within German territory. Furthermore, the Ministry ordered its assets to be confiscated.7 It proved significant that the first applicant focussed on universities to propagate its anti-Semitic, antidemocratic aims and to recruit new members. Keeping in mind that some of the perpetrators of the 9/11 terrorist attacks had university backgrounds coupled with the first applicant maintaining relations with a radical right-wing organisation in Germany, the Ministry decided to issue the banning order.8 The Ministry found that the activities of Hizb Ut-Tahrir were directed against the principle of international understanding and that the association advocated violence as a means to achieve its political goals.9 According to Article 9 (2) of the German Constitution (Basic Law) (Grundgesetz)10 associations that are directed against the concept of international understanding shall be prohibited. In particular due to the publication of articles on the Middle East conflict in the quarterly magazine ‘Explizit’ by the first applicant, in which it 5

ECtHR, Hizb Ut-Tahrir and Others v. Germany (note 1), para. 9.

6

Ibid., para. 2.

The activities were proscribed under Secs. 3 para. 1, 14 para. 2 No. 4 in conjunction with Sec. 15 para. 1 and Sec. 18 para. 2 of the German Law on Associations (Vereinsgesetz), 5 August 1964, BGBl. I, 593, as amended on 21 December 2007, BGBl. I, 3198. 7

Frankfurter Allgemeine Zeitung, 15 January 2003, Schily verbietet “Partei der Befreiung,” available at: http://m.faz.net/aktuell/politik/islamismus-schily-verbietet-partei-der-befreiung-192404.html (accessed on 27 September 2012). 8

9

ECtHR, Hizb Ut-Tahrir and Others v. Germany (note 1), para 5.

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. 10

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denied the right of the State of Israel to exist and called for its destruction and for the killing of Jewish people, the Ministry considered the criteria for prohibiting the first applicant’s activities to be met. It considered Hizb Ut-Tahrir to be a foreign private association which is to be regarded neither as a political party, as it has not stood for elections, nor as a religious or philosophical community as its goals are clearly political and not religious. The applicants’ domestic proceedings against the prohibition order were launched at the Federal Administrative Court (FAC) (Bundesverwaltungsgericht). The FAC indicated orally that actions filed by individual members of an association whose activities had been prohibited would prove inadmissible. On the strength of this, the second to seventeenth applicants withdrew their applications.11 In its judgment of 25 January 2006 the FAC rejected the first applicant’s complaint as unfounded.12 It held that, since it was not first and foremost oriented toward a faithful performance of religious duties, Hizb Ut-Tahrir did not fulfil the requirements of a religious community.13 Its aims, such as the recreation of a Caliphate, were of a political nature even though they were based on religious foundations.14 Consequently the FAC considered the criteria for a ban under Article 9 (2) of the Basic Law to be met in any case as a result of numerous public statements attributable to the first applicant calling for a violent elimination of the State of Israel and inciting killing.15 The public statements contravened the concept of international understanding, and were largely, but not exclusively, expressed in the magazine Explizit.16 According to the FAC there was no doubt that there was an inexorable link between Explizit and the first applicant, meaning the articles in question were directly attributable to Hizb Ut-Tahrir.17 Furthermore, given the seriousness of the first applicant’s statements, the Court considered the measures taken to be proportionate as less invasive measures, such as

11

The first applicant alleged a violation of its rights under Arts. 4, 9, 10 and 11 of the Basic Law.

Federal Administrative Court (Bundesverwaltungsgericht), Judgment of 25 January 2006, 6 A 6/05, reprinted in: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 25 (2006), 694. 12

13

Ibid., para. 11.

14

Ibid.

15

Ibid., paras. 12, 16.

16

Ibid., paras. 15, 17.

17

Ibid., para. 18.

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a simple ban on the organisation making public statements concerning the Middle East Conflict, would have not been adequate to accomplish the pursued aim.18 On 27 December 2007 the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) refused to admit the constitutional complaint lodged by the first applicant on the grounds that the organisation could not claim a violation of its basic rights. Hizb Ut-Tahrir was catagorised as a foreign legal person as it did not have a registered address in Germany and it was therefore not entitled to file a complaint against the judgment of the FAC.19 The FCC based its decision on Article 19 (3) of the Basic Law, according to which the basic rights guaranteed by the Basic Law apply only to domestic legal persons. As a foreign legal person, the first applicant did not meet the conditions of admissibility. The second to seventeenth applicants did not institute proceedings at the FCC. Subsequently all seventeen applicants appealed to the ECtHR claiming, in particular, that the ban imposed on the first applicant’s activities violated their right to freedom of association under Article 11 of the ECHR, their right to freedom of religion and freedom of expression under Articles 9 and 10 of the ECHR and their procedural right under Article 6 of the ECHR.20 Decision of the ECtHR: Due to the fact that the second to seventeenth applicants had withdrawn their applications to the FAC and had not filed a constitutional complaint, the ECtHR rejected their complaints under Article 35 (1) and (4) of the ECHR for non-exhaustion of domestic remedies. The Court found that the advice given by the FAC had not been misleading and notably that this had not prevented them from lodging a complaint with the FCC.21 If this had been the case, possibly since the FAC had not declared the applicants’ actions inadmissible, but had merely informed the applicants orally, the domestic remedies would have had to be consid-

18

Ibid., para. 20.

Federal Constitutional Court (Bundesverfassungsgericht), Decision of 27 December 2007, 1 BvR 853/06, reprinted in: NVwZ 27 (2008), 670. The first applicant had claimed a violation of its right to freely assemble as a religious community (religiöse Vereinigungsfreiheit) under Art. 4 (1) of the Basic Law. 19

20 They further complained about the confiscation of their assets under Arts. 13, 14 of the ECHR and Art. 1 of the Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, UNTS 213, 262. 21

ECtHR, Hizb Ut-Tahrir and Others v. Germany (note 1), para. 53.

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ered as being exhausted. The only remedies that Article 35 (1) of the ECHR requires being exhausted are those that are available and sufficient.22 The ECtHR declared the first applicant’s complaint inadmissible since it was incompatible ratione materiae with the Convention in the sense of Article 35 (3) cl. 1 of the ECHR and therefore had to be rejected in accordance with Article 35 (4) of the ECHR. The Court held that, by reason of Article 17 of the ECHR, the first applicant was not entitled to the protection afforded by the Articles of the Convention that it had invoked.23 The purpose of Article 17 of the ECHR as established in the Court’s case-law is to prevent groups or individuals from deriving from the Convention a right to engage in an activity that destroys any of the rights and freedoms guaranteed by the Convention.24 Considering the activities of the first applicant, the FAC had drawn the conclusion that it had not only denied the State of Israel’s right to exist, but further had called for its destruction and the brutal killing of its inhabitants. Moreover, the FAC considered these aims to be one of the first applicant’s main intentions.25 Examining these conclusions the ECtHR found that the first applicant had employed the rights set out in the Convention for its own purposes, which were clearly contrary to the values of the Convention, in particular the commitment to the peaceful settlement of international disputes and the sanctity of human life.26 With regard to Article 6 of the Convention, the Court referred to its former jurisprudence which indicates that the provision is only applicable in cases which concern a dispute over a civil right, whereas a dispute over a political right, as in this case, is not covered. Article 6 of the ECHR was thus not applicable in this case.27 Comment: With this decision the ECtHR on the one hand confirmed the ruling of the German Courts and on the other hand substantiated its case law in regard to Article 17 of the ECHR. In previous cases in which Article 17 of the ECHR was applicable, the Court had found that the purpose of Article 17 of the ECHR was to 22

Ibid., para. 49.

23

Ibid., para. 74.

24

ECtHR, Lawless v. Ireland, Judgment of 1 July 1961, Series A, No. 3, paras. 45–46.

25

ECtHR, Hizb Ut-Tahrir and Others v. Germany (note 1), para. 73.

26

Ibid., para. 74.

27

Ibid., para. 85.

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prevent individuals and groups from exploiting the rights granted by the Convention for anti-democratic means. These cases include, for example, Garaudy v. France,28 where the author of a book denying the Holocaust relied on the Convention’s rights for his own purposes and W. P. and Others v. Poland,29 where the founders of an organisation whose memorandum of association had anti-Semitic connotations claimed a violation of their Convention rights. According to this jurisprudence Article 17 of the ECHR only applies exceptionally in extreme cases.30 Taking this into account, the present case fits appropriately into this line of reasoning. The seriousness of the first applicant’s activities and aims, not only denying the State of Israel’s right to exist, but also calling for its violent destruction and the killing of its inhabitants make the application of Article 17 of the ECHR in this case proportionate and this therefore deprives the first applicant of the protections afforded by the Convention. In regard to the rejection of the individual complaints of the second to seventeenth applicants under Article 35 (1) and (4) of the ECHR for non-exhaustion of domestic remedies, the decision of the ECtHR also has to be considered legally sound. During the judicial procedures the individual applicants were continuously represented by a German lawyer, and were thus at no time legally or factually prevented from pursuing available judicial remedies. Firstly, they could have upheld their complaint to the FAC. Secondly, in case of dismissal of the case, they could have lodged a constitutional complaint with the FCC, relying on the general freedom to act enshrined in Article 2 (1) of the Basic Law, which also protects non-German nationals. Instead they decided to refrain from exhausting their personal judicial remedies and wait for the outcome of the case filed by the first applicant. This was not enough to satisfy the admissibility criteria of the ECtHR. The reason that Germany remains as yet the only Member State of the European Union to ban the activities of the first applicant certainly has to be seen within the distinct context of German history. Particularly as a reaction to the atrocities committed during the Third Reich, the German Basic Law requires the German authorities 28

ECtHR, Garaudy v. France, Decision of 24 June 2003, RJD 2003-IX, 371.

29

ECtHR, W. P. and Others v. Poland, Decision of 2 September 2004, RJD 2004-VII, 349.

ECtHR, Paksas v. Lithuania, Judgment of 6 January 2011, para. 87, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 26 September 2012), to be reported in: RJD 2011. 30

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to promote peace and international understanding and does not tolerate anti-Semitic activities in Germany. As a result, activities such as those undertaken by the first applicant are regularly prohibited by the Federal Ministry of the Interior. Due to the fact that the first applicant denied the right of the State of Israel to exist and called for its violent destruction, the exceptional commitment of Germany to the security of the State of Israel called for action by the German authorities. The ECtHR did not explicitly refer to the unique German context in its reasoning. However, it made very clear that it considered the case at hand to undeniably be one in which the provisions of the Convention were abused to justify activities that are clearly contrary to the purpose and values of the Convention and that aim at destroying the Convention’s rights and freedoms in the sense of Article 17 of the ECHR.

The Appointment of Public Officials, Interim Measures and Article 6 of the ECHR TOBIAS THIENEL(

Introduction: The German procedure for appointments in the public sector is highly formalised, due to the constitutional right of applicants to have their applications assessed exclusively on the grounds of aptitude, qualifications and professional achievements.1 On the basis of this right, applicants who are passed over for an appointment or a promotion can seek judicial review of the appointment procedure, may take their case through the relevant courts and ultimately even to the Federal Constitutional Court (FCC) (Bundesverfassungsgericht). After the appointing authority has informed an applicant that it intends to appoint a competing candidate, however, the unsuccessful applicant must make sure that the appointment is not completed before any judicial challenge has been finally determined. This is because under German law, appointments of civil servants and other public officials cannot, in principle, be rescinded once completed. This is known as the principle of the ‘stability of public office’ (Grundsatz der Ämterstabilität). If, therefore, a competitor is appointed to the position applied for, the position has already been filled and further challenges will be inadmissible.2 For this reason, applicants who wish to challenge the choice of a competitor for a position in the public sector must firstly apply for an interim order of the competent court enjoining the appointing authority from completing the appointment. Once ( Lawyer (Rechtsanwalt) with Weißleder Ewer, Kiel, Germany and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1

Art. 33 (2) of the Basic Law (Grundgesetz).

Federal Constitutional Court (Bundesverfassungsgericht), Order of 24 September 2002, reprinted in: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2003, 200; Federal Court of Justice (Bundesgerichtshof), BGHZ 160, 190, 193. 2

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that is granted, the position remains open and the challenge to the appointment procedure can proceed without running the risk of being rendered moot by the finality of an appointment. However, it can happen that the interim order of a court is not respected and the appointment carried out regardless, to the detriment of the applicant challenging the decision. The case of Kübler v. Germany in the European Court of Human Rights (ECtHR)3 concerned just such a state of affairs. The Facts:4 The applicant is a lawyer and applied for a position as a public notary. This is a public office, but is discharged in most of the German States (Länder) by lawyers in private practice who receive an appointment as notary in addition to their legal practice.5 His application was considered, but the appointing authority informed him that it intended to fill all six available vacancies with competing candidates. The applicant then brought judicial proceedings to challenge the appointments procedure. These were unsuccessful both at the Stuttgart Regional Court of Appeal and the Federal Court of Justice (FCJ) (Bundesgerichtshof).6 The applicant then informed the appointing authority that he was going to lodge a constitutional complaint with the FCC, and ask that court for an interim order preventing the appointment of his competitors. On 10 April 2003, the FCC issued the interim order requested by the applicant.7 However, over the following two days the applicant’s competitors were appointed and all positions were subsequently filled. On 8 October 2004, the FCC decided the applicant’s constitutional complaint on the merits and found that his application had not been properly considered.8 It therefore remanded the case to the Stuttgart Regional Court of Appeal, which subsequently ordered the appointing authority to reconsider the applicant’s suitability. However, the FCJ quashed this order on appeal, holding that the applicant could no ECtHR, Kübler v. Germany, Judgment of 13 January 2011, reprinted in: Neue Juristische Wochenschrift (NJW) 64 (2011), 3703. 3

4

The facts appear more fully at paras. 8 et seq. of the ECtHR judgment, ibid.

The ECtHR used the phrase ‘advocate notary’ to convey this double function of an Anwaltsnotar. Other German Länder have notaries practising only as such, but they, too, are self-employed (with exceptions in Baden-Württemberg). 5

6 Federal Court of Justice, Order of 31 March 2003, reprinted in: Neue juristische Wochenschrift Rechtsprechungs-Report Zivilrecht (NJW-RR) 2003, 1363. 7

Federal Constitutional Court, Order of 10 April 2003, reprinted in: NJW 56 (2003), 3403.

8

Id., Order of 8 October 2004, reprinted in: NJW 58 (2005), 50.

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longer be considered for any of the six positions as notary because all posts had been filled with final effect. It also held that no new position could be created for the applicant and consequently that his case was inadmissible because its objective could no longer be achieved.9 The FCC dismissed the applicant’s second constitutional complaint, noting that the applicant could not gain more from the second complaint than he already had from the court’s decision of 8 October 2004. Proceedings for damages against the appointing authority also failed because the applicant could not prove that if his application had been properly considered and his competitors had not been appointed prematurely, he would have been given the position as notary. The Case at Strasbourg: The applicant’s complaints to the ECtHR related primarily to the appointing authority’s non-compliance with the FCC’s interim order of 10 April 2003. This raised issues concerning two recent advances in the case law of the Strasbourg Court. It had to be decided whether a claim concerning the appointment of the applicant as a notary involved his ‘civil rights and obligations’ within the meaning of Article 6 (1) cl. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the Court had to determine whether the interim order in this case had ‘determin[ed]’ such rights or obligations, as contemplated by Article 6. On the first issue, the Court repeated its recent case law to the effect that, although the law relating to civil servants was public rather than civil law in the domestic sense of the word, such law was not automatically beyond the scope of Article 6 of the ECHR. Rather, it was primarily for domestic law “to identify expressly those areas of public service involving the exercise of discretionary powers intrinsic to State sovereignty” in which Article 6 of the ECHR, and particularly the right of access to a court, should not apply.10 Because German law had a constitutional right of equal access to the civil service and all questions of law in this regard were amenable to judicial review, domestic law had clearly not signified that access to the civil service (or a position as notary) should be beyond the scope of Article 6 of the ECHR. Article 6 therefore applied to the substance of the claim. This analysis should hold true for all cases of appointments in the civil service (at least where the constitutional right 9

Federal Court of Justice, BGHZ 165, 139, 142 et seq.

ECtHR, Vilho Eskelinen and Others v. Finland (GC), RJD 2007-II, 1, para. 61; id., Kübler v. Germany (note 3), para. 45. 10

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applies with full force11); it is not limited to the position of notaries as self-employed holders of public office. The more critical issue was whether Article 6 of the ECHR applied to the interim proceedings of the FCC. Earlier Convention case law had held that Article 6 of the ECHR did not apply to interim proceedings because they did not ‘determine’ any civil rights but only regulate a temporary position.12 The Grand Chamber of the ECtHR has only recently overruled this line of case law. Article 6 of the ECHR is now applicable provided the nature of the interim proceedings, their object and purpose and the effects of any interim measure imposed could be considered to ‘effectively determine’ a civil right within the meaning of Article 6 of the ECHR. Where that was the case, the length of time for which the interim measure would apply was immaterial.13 Under this new test, the ECtHR has held that Article 6 of the ECHR would not apply if the purpose and effect of the interim measure was only conservatory. For instance, an interim measure in a case about the restitution of a plot of land that only prevented the respondent from selling or mortgaging the land until the conclusion of the main proceedings was held to only preserve the rights at issue, but not to effectively determine the claimant’s civil rights in any way.14 Article 6 of the ECHR will also not apply to interim proceedings if they concern only a temporary freezing order on the respondent’s assets, designed to preserve the ability of the claimant to execute any judgment in his or her favour.15 However, the fair trial rights of Article 6 of the ECHR will apply if proceedings, although considered preliminary, are actually aimed at a full satisfaction of the claimant’s requests.16 By parity of rea11 There are cases, notably with regard to very senior positions in government departments (so-called ‘political civil servants’) and to posts whose holders are elected by Parliament, in which Art. 33 (2) of the Basic Law does not apply or applies with attenuated demands. See e.g.: Claus Dieter Classen, Wahl contra Leistung – Zu Wahlbeamten und Richterwahlen, Juristen-Zeitung 57 (2002), 1009 et seq.

See EComHR, X. (Gallogly) v. United Kingdom, D&R 24, 57, 61; ECtHR, Maillard Bous v. Portugal, Judgment of 28 June 2001, para. 19, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 6 September 2012). 12

ECtHR, Micallef v. Malta (GC), Judgment of 15 October 2009, para. 85, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 6 September 2012). 13

14 Id., Štokalo and Others v. Croatia, Decision of 3 May 2011, available via: http://www.echr.coe. int/ECHR/EN/hudoc (accessed on 6 September 2012).

Id., Imobilije Marketing D.O.O. and Debelić v. Croatia, Decision of 3 May 2011, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 6 September 2012). 15

Id., Udorovic v. Italy, Judgment of 18 May 2010, para. 37, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 6 September 2012); see also the review of post-Micallef case law in id., 16

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soning, Article 6 of the ECHR will therefore also apply if any interim relief would in fact amount to a full satisfaction of the claimant’s aims because the right granted could not effectively be taken away again at the merits stage (Vorwegnahme der Hauptsache).17 For instance, once an interim measure has granted the right to hold a demonstration or participate in an imminent event, proceedings on the merits after the event in question would be quite useless. The interim measure would have taken the final decision in the case.18 If Article 6 of the ECHR is therefore applicable to cases in which the interim proceedings amount to a merits decision on the existence or otherwise of the applicant’s rights, it should also apply if the refusal of conservatory interim relief would have final (and destructive) effects on the claimant’s civil rights. This was the case in Kübler v. Germany. The Court noted that the interim measure […] was aimed at preventing the Ministry of Justice from filling all notary posts before the termination of the main proceedings. Having regard to the fact that only a certain number of notary posts was available and that it was impossible to revoke the appointment of an advocate notary even if another candidate’s claim was successful, the Court finds that the interim measure had a direct effect on the civil right at stake.19

In other words, because the appointment of the competitors would have destroyed the applicant’s substantive civil right (such appointments being final and irrevocable), the interim proceedings designed to avert this destruction of the right had a sufficient effect on the civil right for the purposes of Article 6 of the ECHR. The interim measure only kept the case open to a merits review, but it preserved the very existence of the right to be considered for the position, the procedural right (Bewerbungsverfahrensanspruch) under Article 33 (2) of the German Constitution (Basic Law) (Grundgesetz). The interim measure affected at least this procedural right. Had the right been lost due to the final effect of the appointment of the competitors, the

Pekárny a cukrárny Klatovy, a.s. v. Czech Republic, Judgment of 12 January 2012, paras. 65 et seq., available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 6 September 2012). 17

Frank Meyer, Article 6, in: Ulrich Karpenstein/Franz C. Mayer, EMRK (2012), 143 (para. 22).

Cf. Administrative Court of Appeal (Verwaltungsgerichtshof) of Baden-Württemberg, 9 S 499/11, Order of 28 February 2011, para. 14, available via: www.justiz.baden-wuerttemberg.de (accessed on 16 November 2012). 18

19

ECtHR, Kübler v. Germany (note 3), para. 48.

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applicant’s possible right to be appointed (which only the best candidate enjoys20) would also have been lost. But regardless of whether the applicant in fact had a right to be appointed, Article 6 of the ECHR applied in any event on the basis of the effect of the interim measure on his right to be considered for the position of notary. Once the Court had held that Article 6 of the ECHR was applicable, the merits of the case were relatively easy. Article 6 of the ECHR implies not only a right of access to a court,21 but also a right to have the eventual decision of the court complied with or executed by the public authorities.22 It was therefore a violation of Article 6 of the ECHR for the appointing authority to disobey the interim order of the FCC. The order had been binding on the appointing authority. Its object had been to preserve the rights at issue pending a final decision on their existence or otherwise; it was therefore immaterial whether the applicant had in fact had a right to be appointed. The European Court could leave this issue undecided.23 By implication, the Court also found it irrelevant that the order of the FCC had not been transmitted in time to the official in charge of the appointments procedure. This is convincing; it matters only that the order had been served on the appointing authority, but the fault of the particular official is not at issue. Consequences of the Violation: The ECtHR did not find that the applicant had had any right to be appointed as a notary. Its central holding was only that the applicant’s procedural right of compliance with an interim order had been breached. Therefore, on the state of German law as it stood in the applicant’s case, the finality of the appointments could not be affected. However, German law has moved on since the applicant’s case was decided in the domestic courts. The Federal Administrative Court (FAC) (Bundesverwaltungsgericht) has since held that the finality of public appointments – the principle of the stability of public office – had to give way if the appointment had been made in violation of an

Federal Labour Court (Bundesarbeitsgericht), Judgment of 21 January 2003, reprinted in: Monatsschrift für deutsches Recht (MDR) 57 (2003), 1056, 1057. 20

21

The leading case is ECtHR, Golder v. United Kingdom, Series A, No. 18, paras. 28 et seq.

22

ECtHR, Hornsby v. Greece, RJD 1997-II, 495, para. 40.

23

Id., Kübler v. Germany (note 3), paras. 63 et seq.

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applicant’s right to an effective legal remedy24 – as, for instance, where an interim order had been disobeyed.25 Accordingly, the appointment of a competitor could still be questioned in further judicial proceedings, and if it was found to be unlawful, could still be quashed. The FCJ, which is competent in cases concerning notaries, may well adopt this approach.26 Therefore, the applicant may bring new proceedings challenging the appointment of a competitor (presumably of the last competitor to be appointed) and seek a new decision on his own appointment as notary.27 The judgment of the ECtHR would clearly assist him in proving that his right to seek a judicial remedy had been violated28 and that the appointment of his competitor therefore did not have final effect. However, the applicant’s further attempts to vindicate his rights would appear to arrive at the problem that the domestic decisions in his case have been res judicata since the last decision of the FCJ in November 2005. The possibility of reopening the proceedings after a finding of a violation of the Convention by the ECtHR29 does not apply in the applicant’s case, because it is only available with regard to cases concluded after 31 December 2006.30 The decision of the FCJ therefore continues to establish Federal Administrative Court (Bundesverwaltungsgericht), BVerwGE 138, 102, 110 et seq. The right to a legal remedy in question was the constitutional right under Art. 19 (4) of the Basic Law, which is an approximation of Art. 13 of the ECHR, but also shares some of the territory of Art. 6 of the ECHR. 24

25

Ibid., 112–113.

The FCJ had in the applicant’s own case (see supra, note 9) declined to follow an earlier approach of the FAC. Under this approach, the finality of the appointment would not have been impaired, but the applicant would still have succeeded. Having violated the applicant’s right to a legal remedy, the employer would have been obliged, if necessary, to create an additional post (Federal Administrative Court, BVerwGE 118, 370, 374 et seq.). The FAC has now abandoned this line of case law. Its more recent approach (see supra, note 24) was clearly designed to address the counter-arguments of the FCJ. Therefore, the latter Court may now well follow suit. The right of the appointed notary to retain a measure of financial independence (Federal Court of Justice, BGHZ 165, 139, 144–145), is not a relevant hindrance because this right would be lost along with the status of notary. 26

27 Cf. Administrative Court of Appeal (Oberverwaltungsgericht) of North Rhine-Westphalia, 1 A 1757/09, Judgment of 30 May 2011, para. 48, available via: http://www.justiz.nrw.de/Bibliothek/nrwe 2/index.php (accessed on 16 November 2012). 28 The FCC noted the breach of its interim order in its decision on the merits (see supra, note 8), but did not expressly find any breach of the applicant’s rights in this regard.

Sec. 580 No. 8 of the Code of Civil Procedure (Zivilprozessordnung). This provision is now applicable to cases of notaries pursuant to Sec. 111b (1) of the Federal Notaries Act (Bundesnotarordnung), read with Sec. 153 (1) of the Administrative Courts Act (Verwaltungsgerichtsordnung). 29

Sec. 35 of the Introductory Law to the Code of Civil Procedure (Einführungsgesetz der Zivilprozessordnung). 30

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with final effect that the applicant cannot claim to be reconsidered for the relevant positions as notary.31 However, the final effect of the decision is limited to the state of the facts and the law as it was at the time of the decision.32 If the law has changed since the decision of the FCJ, the case is therefore open for judicial reconsideration. The new case law of the FAC on exceptions from the principle of the stability of public office has not effected a relevant change in the law as it has only stated the law.33 Likewise, the judgment of the ECtHR has not effected a change in the law but has only stated the law of the Convention. However, under the constitutional principle of comity towards international law (Völkerrechtsfreundlichkeit), the FCC has been prepared to regard a judgment of the ECtHR as equivalent to a change in the law for the purposes of reopening a case.34 Moreover, in the case of Kübler v. Germany, reopening the proceedings for appointment as a notary would also constitute an easy way of securing compliance with Germany’s obligation under Article 46 (1) of the ECHR to remove any consequences that the violation of the Convention may have had for the applicant.35 This would appear to include an obligation to remove the destructive effect that the unlawful appointment of a competitor has had on the applicant’s (procedural) rights. Once the proceedings are reopened, the new case law of the FAC would, if accepted in relation to notaries, enable the courts to do this. It therefore appears that the judgment of the ECtHR ought to provide sufficient grounds for reopening the applicant’s case, provided that the applicant makes an application to this effect. Conclusion: The case of Kübler v. Germany contributes to the new doctrine on the application of Article 6 of the ECHR to interim proceedings. It establishes, against the background of this new doctrine, that compliance with binding interim measures is an aspect of the general obligation to comply with or execute judicial decisions. It also clarifies the application of the other rights under Article 6 (1) of the ECHR to interim proceedings in the context of the appointment of German civil Federal Administrative Court, 5 C 9.11, Judgment of 13 December 2011, para. 20, available via: www.bundesverwaltungsgericht.de (accessed on 6 September 2012). 31

32

Ibid.

33

Cf. Federal Administrative Court, BVerwGE 135, 137, 143.

34

Cf. Federal Constitutional Court, BVerfGE 128, 326, 365.

See: Christoph Grabenwarter/Katharina Pabel, Europäische Menschenrechtskonvention (5th ed. 2012), 103. 35

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servants. The Court’s finding of a violation of Article 6 of the ECHR may now give practical assistance to the applicant, in that it may help him overcome the res judicata of the earlier decision in his case and consequently help him profit from the recent change in German administrative law.

Private Prayer in Public Schools: The Judgment of the German Federal Administrative Court of 30 November 2011 HANS MICHAEL HEINIG( AND STEFAN KIRCHNER((

Introduction: The basic features of the German law concerning religion have comparatively long-standing roots. Many of the provisions regarding religion contained in the Weimar Constitution (Weimarer Reichsverfassung) from 1919 are still applicable today. In addition to this, the freedom of religion was later enshrined in Article 4 of the German Constitution (Basic Law) (Grundgesetz). The scope of these provisions has been increasingly clarified by the German Federal Constitutional Court (FCC) (Bundesverfassungsgericht), which has a long tradition of interpreting them in its jurisprudence. The Basic Law envisions an open separation of religion and State which is not absolute but open for some degree of cooperation and religious freedom carries great weight. When compared with other legal jurisdictions, German law is considered relatively pro-religion. The older leading cases of the FCC concern the relationship between a Christian majority society and a non-Christian minority. This has proven particularly significant in the area of education, with many judgments having been handed down that relate to the Christian character of public schools or school prayers before lessons. However, the socio-religious situation in Germany has changed dramatically since the 1950s and 1960s. Since this time, as has been the case in many States, Germany has gone through a multiplicity of sociological changes, leading to an increasingly multi( Prof. Dr. Hans Michael Heinig holds the Chair for Public Law and Ecclesiastical Law at the Faculty of Law, Georg-August-University, Göttingen, Germany, and is the head of the Institute of Public Law at the same university as well as Director of the Institute for Ecclesiastical Law of the Protestant Church in Germany (EKD) in Göttingen.

RA Stefan Kirchner, MJI, is a Lawyer for the German Federal Maritime and Hydrographic Agency in Hamburg, Germany, and Expert Lecturer for Human Rights at the Faculty of Law of Vytautas Magnus University in Kaunas, Lithuania. ((

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religious society. This raises a number of questions as to how to respond to challenges resulting from these changes. One of the new challenges faced concerns the role of religion in state schools. Islam in state schools has as yet primarily been dealt within the context of three issues: Islamic religious education parallel to existing courses in religion or ethics,1 students refusing to take part in physical education classes, namely Muslim girls not wishing to attend swimming classes,2 and female teachers wearing headscarves in school.3 An important and controversial judgment developing the law on Muslim prayers in state schools was handed down by the Federal Administrative Court (FAC) (Bundesverwaltungsgericht) in 2011. Its judgment is a crucial tool in understanding the character of religious freedom in German state schools. The Facts of the Case: The applicant in the case is a practising Muslim who was born in 1993 and attended a grammar school (Gymnasium) in the Wedding district of Berlin at the time in question.4 On 1 November 2007 the applicant and a few other students conducted ritual Muslim prayers on school premises, albeit in a corridor during break time and not in a classroom.5 The following day the school’s principal told the students that the school did not allow prayer anywhere on school grounds6 and informed the students’ parents likewise in writing, claiming that this was the case in all state schools in Germany.7 Among the reasons given for this decision was the fear of conflict between students of different faiths in a multi-religious environment following previous incidents at the school. The 2011 judgment of the FAC was preceded by decisions by the Administrative Court of Berlin (Verwaltungsgericht Berlin) and the Higher Administrative Court of Berlin and Brandenburg (Oberverwaltungsgericht Berlin-Brandenburg).

1

Cf. Peter Unruh, Religionsverfassungsrecht (2009), 259 et seq.

2

Gerhard Czermak, Religions- und Weltanschauungsrecht (2008), 163.

3

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 108, 282.

Administrative Court Berlin (Verwaltungsgericht Berlin), 3 A 984.07 of 29 September 2009, para. 2, available at: http://www.gerichtsentscheidungen.berlin-brandenburg.de/jportal/?quelle=jlink& docid=JURE100054709&psml=sammlung.psml&max=true&bs=10 (accessed on 25 September 2012). 4

5

Ibid., para. 3.

6

Ibid.

7

Ibid., para. 4.

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The 2009 Judgment of the Administrative Court of Berlin: In its 2009 judgment the Administrative Court of Berlin emphasised that the freedom of religion as codified in Article 4 of the Basic Law can only be limited by the Basic Law itself.8 As such, while Article 4 of the Basic Law protects the negative freedom of religion of other students who did not wish to be exposed to the prayers of the applicant, the duty of public institutions to show neutrality in religious matters did not require the school to ban all religious expressions by its students. The Court did not consider the negative right of others to be a sufficient justification to order him not to pray in school to avoid other students witnessing the prayer, as this would over-intrusively limit the applicant’s freedom of religion.9 According to the Administrative Court of Berlin, the right of other students’ parents to educate their children as they wish in relation to religion did not justify banning the prayer either.10 In a multi-religious society there can be no right to not be exposed to expressions of other faiths.11 Moreover, the Court found that the other students, while being obliged to attend school due to the compulsory nature of school education in Germany, which does not allow for home-schooling, were not forced to witness the prayers in question since these were conducted during breaks and outside the classroom.12 The Court therefore concluded that offence caused by a fellow student’s expression of religious faith did not provide the basis for action against that student; indeed one aspect of education is to foster respect for other faiths.13 The second potential limit to religious freedom considered by the Court is Article 7 of the Basic Law. The State has a duty to supervise the school system under Article 7 (1) of the Basic Law and the peaceful functioning of state schools follows from this.14 This was considered by the Court to be insufficient to limit the applicant’s freedom of religion,15 though this aspect was only dealt with briefly, almost as an afterthought. More importantly, it was not the prayer itself which had caused the 8

Ibid., para. 28.

9

Ibid., para. 36.

10

Ibid., para. 36.

11

Ibid., para. 37.

12

Ibid., para. 38.

13

Ibid.

14

Ibid., para. 43.

15

Ibid., para. 44.

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disruption in the functioning of the school, it was the other students’ reaction to his prayer. Additionally, conflicts are to be dealt with internally through open discourse and other peaceful means.16 The 2010 Judgment of the Higher Administrative Court of Berlin and Brandenburg: The Court of second instance, however, disagreed. It decided that he student’s freedom of religion was in conflict with that of the other students17and saw a need to balance the rights of both sides.18 In deciding this, it agreed with the Administrative Court of Berlin that schools do not have to be kept entirely free of all religious expression19 because the neutrality of the State regarding religion does not extend as far as the strict separation of laicism20 evident in e.g. France and Turkey. In spite of this, the defendant’s argument regarding the potential threat to the peaceful functioning of the school was sufficient for the Higher Administrative Court to accept some limitation of the applicant’s freedom of religion.21 However, the other students’ disapproval was not thought by the Court to be sufficient to prohibit future prayers22 and it aimed to strike a balance between the competing constitutional values.23 In the end, the applicant’s right to pray was denied based on Section 46 (2) cl. 3 of the School Law of the State of Berlin,24 according to which students must adhere to regulations which have been established (e.g. by the school) with the aim of securing the peaceful functioning of the school. In the case at hand this was established by the regulations established by the school (Schulordnung) attended by the applicant.

16

Ibid., para. 45.

Higher Administrative Court for the States of Berlin and Brandenburg (Oberverwaltungsgericht Berlin-Brandenburg), OVG 3 B 29.09 of 27 May 2010, para. 31, available at: http://www.gerichts entscheidungen.berlin-brandenburg.de/jportal/?quelle=jlink&docid=MWRE100001916&psml= sammlung.psml&max=true&bs=10 (accessed on 25 September 2012). 17

18

Ibid., para. 32.

19

Ibid., para. 31.

20

Ibid.

21

Ibid., paras. 32 et seq.

22

Ibid., para. 36.

23

Ibid., para. 32.

Available at: http://www.berlin.de/imperia/md/content/sen-bildung/rechtsvorschriften/schul gesetz.pdf?start&ts=1303211502&file=schulgesetz.pdf (accessed on 11 December 2012). 24

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Religious activities, including prayers, were limited exclusively to religious education classes by the regulations.25 The 2011 Judgment of the Federal Administrative Court:26 The applicant appealed the decision to Germany’s highest court for matters of administrative law, the FAC, which upheld the decision of the Higher Administrative Court. The FAC agreed that the applicant’s wish to pray was covered by the freedom of religion27 which also in principle encapsulated the freedom of choice of where to pray,28 although this does not extend to granting access to otherwise inaccessible locations.29 Like freedom of speech, freedom of religion is a right which moves with the holder of that right.30 Although the student had permission to be in the school corridors, the FAC then proceeded to deny a right to pray, even though it found that neither the infringement on the negative freedom of religion of the other students nor the right of the parents of the other students to educate their children in accordance with their beliefs was significant enough to restrict the applicant’s freedom of religion.31 The FAC also opposed the notion of a strict separation of State and religion and held that the neutrality imposed on the State does not allow for the prohibition of private prayer in state schools.32 It also held that the State’s duty to treat different religions on the basis of neutrality had not been violated as the school had generally forbidden students from praying in school.33 While it agreed with a number of points elucidated by the Court of first instance, the FAC ultimately found stronger constitutional arguments against the applicant’s claim. The FAC noted that there is no legal basis in specific laws which would allow 25

Ibid., para. 24.

Federal Administrative Court (Bundesverwaltungsgericht), 6 C 20.10 of 30 November 2011, available at: http://www.bverwg.de/enid/311?e_view=detail&meta_nr=2809 (accessed on 25 September 2012). 26

27

Ibid., para. 19.

28

Ibid., para. 20.

29

Ibid., para. 23.

30

Ibid.

31

Ibid., para. 27.

32

Ibid., para. 34.

33

Ibid., para. 37.

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the prohibition of the prayer,34 yet went on to find the school directive to be sufficient as it was created under the authority of the School Law of the State of Berlin.35 Lacking a legal basis, the school is therefore not in a position to prohibit every private prayer on the school grounds.36 In the case at hand, however, the FAC considered the protection of the peaceful functioning of the school to provide a sufficient basis for such a prohibition in an individual case.37 Comment: The latter argument is important as it highlights the individual nature of the decision, which provides little precedent for future cases. It is not forbidden per se to pray in a public school.38 Rather, even if one follows the reasoning employed by the FAC, which is, as will be shown, questionable in a number of ways, whether the peaceful functioning of a school is at risk must be examined on a case by case basis. That prayer is an integral part of the freedom of religion can hardly be questioned; freedom of religion goes beyond the mere freedom to have a faith, allowing also for its manifestation. Freedom of religion also has a negative dimension39 which means that the scope of Article 4 of the Basic Law is affected if the State creates a situation in which an individual is exposed to another religion without having the possibility to avoid the situation.40 The FAC agreed with the court of first instance that the other students’ negative freedom of religion would not be infringed upon if they were to see the applicant praying in the corridors of the school building.41 As with the right of parents to educate their children in accordance with their values, the negative dimension of the freedom of religion does not protect one against others exercising their 34

Ibid., para. 40.

35

Ibid.

36

Ibid.

37

Ibid., para. 41.

Stefan Muckel, Verbot des rituellen Gebets in der Schule, reprinted in: Juristische Arbeitsblätter (JA) 2012, 235, 237. On the possibility of legislation banning such private prayers in school and the constitutionality there of see Peter Scholz, Islamisches Ritualgebet in der Schule? – Berliner Realität, “theologische Falle” und Plädoyer für den Staat, reprinted in: Deutsche Richterzeitung 2010, 400, 405. 38

39 Hans D. Jarass, Art. 4 (Glaubens- und Gewissensfreiheit), in: Hans D. Jarass/Bodo Pieroth (eds.), Grundgesetz für die Bundesrepublik Deutschland (12th ed. 2012), 164 (para. 11); see also Lea Maria Siering, Die negative Religionsfreiheit und ihre Bedeutung bei aufenthaltsbeendenden Maßnahmen (2011), 28 et seq. 40

Jarass (note 39).

41

Federal Administrative Court (note 26), para. 29.

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own freedom differently, even if this manifestation is visible to others. Giving the negative freedom of religion unlimited precedence over the positive dimension would open the door to a complete ban on the public practice of religion,42 which is incompatible with Article 4 of the Basic Law.43 Particularly in schools, where underage children who are obliged to attend are necessarily affected, the importance of the freedom of religion given by the Basic Law requires that the competing rights and interests are balanced.44 In these cases, the courts so far have done well not to overextend the concept of the negative freedom of religion. A more troublesome point arising from the judgment of the FAC is the prominence it bestowed on the peaceful functioning of the school. This is a rather vague concept45 whose use reflects a functional approach that has been problematic for some time.46 School peace is a necessity for a school to function and provide its service in the public interest.47 Friction caused by different religious views can lead to conflicts within a school. The desire to preserve the functioning of the school is seen as a justification for limitations of the fundamental rights of both students and teachers.48 While the Courts, and particularly the Higher Administrative Court, have given the public interest prevalence over the freedom of religion of the student in this case, public interest concerns do not automatically trump civil rights and is not absolute, important as it may be.49 Although a higher likelihood of conflicts between different religious groups within the school can make it easier to justify limitations of the freedom of religious expression,50 preventive limitations of the freedom of religion would go too far.51 Even though this is constitutionally protected, the price for its 42

Axel Freiherr von Campenhausen/Heinrich de Wall, Staatskirchenrecht (4th ed. 2006), 62.

43

Ibid.

44

Ibid.

Cf. Friedhelm Hufen, Grundrechte: Religionsfreiheit in der Schule, reprinted in: Juristische Schulung (JuS) 2012, 663, 665. 45

46

See also Christoph Enders, Anmerkung, reprinted in: Juristenzeitung (JZ) 2012, 363, 364.

Julian Krüper, Schulfrieden, in: Hans Michael Heinig/Hendrik Munsonius (eds.), 100 Begriffe aus dem Staatskirchenrecht (2012), 227. 47

48

Ibid.

49

Ibid., 227 et seq.

50

Ibid., 228.

51

Ibid.

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protection is paid only by the applicant exercising a fundamental human right, not by the other students who took offence. Usually only those at fault for an impingement on a particular public interest, in this case the peaceful functioning of the school, can be targeted for its protection. While this may be derogated from in a case of emergency, such circumstances did not exist here. The Courts not only failed to investigate which of the students posed a risk to the peaceful functioning of the school, it also appears that the Courts were well aware that it was not, or at least not only, the applicant.52 The argument which seems to provide the foundation for the reasoning of the FAC is not one relating to school law but is rather evocative of police and public order law. But even if one were to be open to the idea of introducing elements of public order law into the way that schools are governed –which is a decision to be made by the legislature and not the courts,53 taking measures against a person who is not responsible for a given danger54 has to remain a last resort.55 It has not been made clear, though, that the prohibition of prayer was actually ultima ratio. Even worse, at least from the perspective of constitutional law, is the way in which the FAC ignored the principle that key decisions are to be made by parliament. This requirement (Wesentlichkeitstheorie) insists that invasive restrictions of the freedom of religion affecting fundamental aspects, such as prayer, require a legal basis in the form of a law created by parliament.56 As the FAC admitted, the school law (Schulgesetz) of the state of Berlin does not include a specific rule regarding the legality of private prayer on school grounds outside of class hours.57 This essential requirement of German constitutional law has therefore not been met.

52

Federal Administrative Court (note 26), para. 48.

Enders (note 46), 366; Ralph Zimmermann, Kein Anspruch eines Schülers auf Verrichtung eines islamischen Gebets während der Unterrichtspausen, reprinted in: Neue Justiz 2011, 24, 25. 53

54 The case would be different were the danger to the peaceful functioning of the school be caused by the praying student alone, see Zimmermann (note 53), 25 et seq. 55

Cf. see also Enders (note 46), 365.

Cf. Krüper (note 47), 229. On the issue see in more detail Ralph Zimmermann, Gesetzesvorbehalt für schulordnungsrechtliche Maßnahmen gegen religiöse Äußerungen von Schülern?, reprinted in: Landes- und Kommunalverwaltung 2010, 394, 399 et seq. 56

57

Administrative Court Berlin (note 4), para. 22; see also Enders (note 46), 364.

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Conclusions: The FAC’s judgment is disappointing in that it does not give sufficient weight to the importance that the drafters of the Basic Law gave to the freedom of religion, particularly in light of German history leading up to 1945. This having been said, the decision does shed some light on the relation between the positive and negative dimensions of the freedom of religion. The negative dimension of the freedom of religion does not include an unlimited protection against being exposed to the religious activities of others, even if one does not agree with them. The Basic Law requires mutual respect between those who want to practise their faith and those who reject this faith or at least do not wish to be exposed to it. In the case at hand, those students who felt uneasy about the prayers of the fellow student could only claim infringement on the negative freedom of religion, the scope of which cannot exceed the positive dimension of the freedom of religion58 claimed by the student who wished to pray. Therefore, the other students were obliged to tolerate the Muslim student’s prayers. As the amount of Muslim students in German schools grows, such cases are likely to increase in number, at least in urban schools such as the one in Berlin featured in this case. Religious diversity within a school can lead to conflicts.59 In multi-religious societies, conflicts of interest between adherents of different faiths have to be resolved peacefully. Schools are a mirror of society, both in terms of problems and the need to solve them in a manner which takes into account the rights of all concerned. Even though conflicts are likely, the concept of peaceful functioning of the school should not be inappropriately overstretched. Despite the evident contrast between state schools and private schools,60 state schools are more than simply schools which are not privately organised. Unlike those countries in which private schools are more common, state schools in Germany still ostensibly reflect society as a whole. Therefore, schools have to deal with problems and tensions evolving in a broader society which is neither mono-cultural nor truly multicultural, but rather has an ascending minority. The perceived rise of Islam in Germany in the last decades might have led to a certain degree of unease. However, the freedom of religion of Muslims living in Germany must be seen independently from the 58

Freiherr von Campenhausen/de Wall (note 42), 61.

59

Higher Administrative Court for the States of Berlin and Brandenburg (note 17), para. 34.

Bodo Pieroth, Art. 7 (Schulwesen), in: Hans D. Jarass/Bodo Pieroth (eds.), Grundgesetz für die Bundesrepublik Deutschland (12th ed. 2012), 274 (para. 14). 60

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treatment of non-Muslims in predominantly Muslim countries61 as the freedom of religion does not require reciprocity. Human rights law differs from international law as it relates to regular inter-State claims, not only because the Basic Law does not provide for such a possibility62 but because human rights obligations are hostile to the concept of reciprocity. Also, the existing legal structure which governs the relationship between the state and religion in Germany has not only served both sides well for many years but is also open and flexible enough to deal with the country’s changing religious landscape. This was the case in the after math of the re-unification of Germany in 1990, which resulted practically overnight in a dramatic shift in this regard. Germany’s constitutional rules on the relationship between state and religion and to an even greater extent the high value that the drafters of the Basic Law bestowed upon the freedom of religion have proven successful in the past. As a result, the FAC should have been more mindful of the particular status of the right to freedom of religion in the German Basic Law, which makes restrictions of the freedom of religion a last resort in this case. After all, the freedom of religion was not created by the Basic Law and existed before the Basic Law extended protection over it – religious freedom is not merely ‘promised’63 as the FAC claims. This failing of the FAC reveals a larger failure: the exercise of a right by a disadvantaged minority party is suffocated by the overwhelming opposition of a stronger party.64

Cf. Hans-Tjabert Conring, Der Islam und das Menschenrecht der Religionsfreiheit, Kunst und Recht (KuR) 1996, 1 (4) = 110, 11 (14). 61

62

Ibid., 1 (9) = 110, 11 (19).

63

Federal Administrative Court (note 26), para. 54.

See Georg Neureither, Praying at school? “Anyplace, anywhere, anytime!,” available at: http:// verfassungsblog.de/praying-school-anyplace-anytime/ (accessed on 25 September 2012). 64

Handling of Somali Pirates from Capture until Transfer to Kenyan Authorities in Accordance with International Law? ANDREA MEYER(

Introduction: The judgment of the Administrative Court of Cologne (Verwaltungsgericht Köln) of 11 November 20111 reported concerns about the seizure and transfer of a Somali citizen who was accused of piracy to the authorities of Kenya for the purpose of prosecuting him. The seizure and detention of the alleged pirates by the German Navy had been deemed by the Administrative Court of Cologne to be in accordance with international, European and German national law. Nonetheless, the Court decided to declare the transfer as unlawful due to the fact that it contravenes international human rights law. Facts of the Case: Together with eight other persons the claimant was intercepted in a skiff (an open, small-motor vessel) in the Gulf of Aden by the German Naval frigate Rheinland Pfalz in March 2009. The claimant is a Somali citizen. He was taken into custody because he was suspected of committing a piratical assault on the ship Courier, which was sailing under the flag of Antigua and Barbuda and belongs to the German shipping company Winter. The frigate Rheinland Pfalz is part of the navy response force acting on behalf of the European Union (EU) in the military operation Atalanta which serves to deter and combat piracy as well as armed robberies off the Somali coast. The operation is based on the decision for the Joint Action 2008/851/CFSP2 by the

Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. (

1 Administrative Court of Cologne (Verwaltungsgericht Köln), 25 K 4280/09 of 11 November 2011, reprinted in: JuristenZeitung (JZ) 67 (2012), 366. 2 Council Joint Action of the Council of the European Union of 10 November 2008, OJ 2008 L 301, 33.

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European Council. The Joint Action of the EU is based on UN Security Council Resolutions 1814 (2008),3 1816 (2008)4 and 1838 (2008).5 The claimant was transferred to the Kenyan public prosecutor together with eight other individuals accused of piracy on 10 March 2009. Prior to this the public prosecution department of the City of Hamburg (Staatsanwaltschaft Hamburg) initiated preliminary investigations against the intercepted suspects and issued arrest warrants against them on 6 March 2009.6 On 7 March 2009 the preliminary investigation was dismissed pursuant to Section 153 (c) of the German Code of Criminal Procedure (Strafprozessordnung).7 This decision was based on the findings of a federal crossdepartmental decision-making body consisting of representatives from different ministries, in which the public prosecution department of the City of Hamburg was informed that the claimant would be transferred to the Kenyan authorities along with the other suspects. The legal basis for the transfer is found in written correspondence from 6 March 2009 between the EU and Kenya.8 Before handing the suspects over to the Kenyan authorities, on the 9 March 2009 the German Embassy in Nairobi submitted a verbal note to the Kenyan government in which Kenya agreed to prosecute the alleged pirates. On 11 March 2009 the Mombasa Chief Magistrate Court No. 4 issued arrest warrants against all the suspects previously held on the Rheinland Pfalz. The alleged pirates were placed in the Kenyan prison Shimo-la Tewa. On 9 November the High Court of Mombasa declared that Kenya had no jurisdiction to prosecute the alleged pirates under Section 69 of the Kenyan Penal Code, as they had acted outside of the territorial waters of Kenya. It ordered the immediate release of all suspects. Nevertheless, the suspects, including the claimant, have not

3

SC Res. 1814 of 15 May 2008.

4

SC Res. 1816 of 2 June 2008.

5

SC Res. 1838 of 7 October 2008.

6

Filed under file record Az. 7402 Js 27/08.

Code of Criminal Procedure (Strafprozessordnung), 7 May 1987, Bundesgesetzblatt (BGBl.) I, 1074, as amended on 23 June 2011, BGBl. I, 1266. 7

Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer, 25 March 2009, OJ 2009 L 79, 49. 8

GERMAN PRACTICE

701

been released from prison as the prosecution appealed against the decision. The High Court ruled on 12 November 2009 that all suspects had to remain in prison. On 25 June 2009 the attorney of the claimant brought a legal action against the Federal Republic of Germany. The lawsuit included the action to declare that the interception, detention and transfer to the Kenyan authorities were unlawful. In accordance with the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung)9 the Administrative Court of Cologne (Verwaltungsgericht Köln) declared the case as admissible in its interim judgment of 30 April 2010. The Court’s Decision: The Administrative Court of Cologne at first found that the interception and remanding in custody of the piracy suspects constituted lawful measures according to German national law. Regarding these two issues, the Administrative Court neglected to elaborate on whether the actions were attributable to Germany or solely to the EU. The arrest of the claimant was based on Article 105 (1) of the United Nations Convention of the Law of the Sea (UNCLOS).10 According to Article 105 of the UNCLOS on the high seas any State is, inter alia, allowed to seize a pirate ship and to arrest the persons on the ship as well as seize the property on board. Article 105 combined with Articles 106 and 110 (1a) of the UNCLOS also provide the legal basis for the arrest of the claimant and the other eight persons on the skiff because there were strong indications that they were involved in piracy. According to the Administrative Court of Cologne all requirements for a lawful arrest were fulfilled. The Rheinland Pfalz is a warship in the sense of Article 107 of the UNCLOS and the arrest was executed on the high seas. Therefore, there was no need for reference to Security Council Resolution 1816 (2008) which allows States to act within Somali territorial waters. Moreover, at the time of the arrest, there were substantial reasons to suspect that the skiff on which the claimant was arrested was a pirate ship. According to Article 103 of the UNCLOS, a vessel is to be considered a pirate ship “[…] if it is intended by the persons in dominant control [of the ship] to be used for committing one of the acts referred to in Article 101.” According to Article 101 of the 9 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung), BGBl. I, 686, as amended on 22 December 2010, BGBl. I, 2248. 10 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 396 (UNCLOS) (in force since 16 November 1994).

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UNCLOS the definition of piracy is inter alia fulfilled by any illegal acts of violence against another ship on the high seas committed for private ends by a crew of a private ship. In the case of the claimant there were sufficient reasons to suspect that he and the other members of the crew had perpetrated violent acts against the MV Courier. This is based on various facts; inter alia, that members of the Rheinland Pfalz found tools to board other ships on the skiff, particularly rocket propelled grenades similar to those used in the attack on the MV Courier. Additionally, the Administrative Court found that taking the claimant into custody on the frigate Rheinland Pfalz from 3 to 10 March 2009 was in accordance with German law. The Court held that this had not violated Article 104 (3)(1) of the German Basic Law.11 Pursuant to this norm every person detained on suspicion of having committed a criminal offence has the right to be brought before a judge within a day of the arrest. Despite the fact that the claimant and the other suspects of piracy were held for longer than two days on the frigate Rheinland Pfalz, the Administrative Court found that this treatment was still in accordance with Article 104 (3)(1) of the Basic Law. For the determination of the scope of application of Article 104 (3) of the Basic Law, it is necessary to examine Article 25. Article 25 of the Basic Law contains the principle of openness of the Basic Law to public international law. This norm of the Basic Law stipulates that general principles of international law are an element of the German national law and that they take precedence over German Federal national law.12 According to the jurisprudence of the Federal Constitutional Court, Article 25 of the Basic Law contains an obligation for Germany to act in conformity with international law.13 Keeping this notion in mind, the Administrative Court concluded that modifications and differentiations of the scope of application of Article 104 (3) of the Basic Law were permitted.14 Therefore the Administrative Court modified the Basic Law for the Federal Republic of Germany (Grundgesetz der Bundesrepublik Deutschland), BGBl. 1949, 1, as amended on 21 July 2010, BGBl. I, 944 (Basic Law). 11

12 Ingolf Pernice, Art. 25 GG, in: Horst Dreier (ed.), Grundgesetzkommentar, Band II (2006), para. 16.

For more details, see Michael Trésoret, Seepiraterie – Völkerrechtliche, europarechtliche und verfassungsrechtliche Rahmenbedingungen der Auslandsentsendung deutscher Streitkräfte zur Bekämpfung der Seeräuberei (2011), 502. 13

14 Administrative Court of Cologne (note 1), paras. 42 et seq; for a critique of this argumentation of the Administrative Court, see Christina Globke, Anmerkung zu VG Köln, 11.11.2011 - 25 K 4280/09, JZ 67 (2012), 370, 371.

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application of Article 104 (3) of the Basic Law on two accounts. First, the Court came to the conclusion that the detention period of eight days was lawful due to the special circumstances of the seizure. The frigate Rheinland Pfalz acted as part of a multilateral military operation on the basis of the Joint Action of the European Council 2008/ 851/CFSP. The Administrative Court held that Article 104 of the Basic Law can be applied with modifications in cases which deal with navy military operations on the high seas enacted in the course of a multilateral military operation. The Administrative Court is therefore of the opinion that Article 104 (3) of the Basic Law, as well as Article 5 (3) of the European Convention on Human Rights (ECHR)15 and Article 9 (3) of the International Covenant for Civil and Political Rights (ICCPR)16 have to be modified to that effect that suspects of piracy, who have been arrested on the high seas by members of a multilateral military operation, have to be brought in front of a judge ‘without undue delay’.17 The Administrative Court acted in conformity with judgments of the European Court of Human Rights (ECtHR) in which it found that a period of thirteen or sixteen days between arrest being brought before a judge is lawful in the sense of ‘without undue delay’.18 Additionally, the seizure took place on the high seas in a distance of over 1,000 nautical miles from Kenya, requiring an ample amount of time to transfer the suspects. Secondly, transferring the claimant to a Kenyan judge instead of a German one was also lawful. Article 12 (2) of the Council Joint Action Operation Atalanta19 and the corresponding verbal notes20 between the EU and Kenya included the agreement that prosecutions would take place in Kenya. Thus, to be in accordance with the requirements of Article 104 of the Basic Law the claimant and the others suspected of piracy had to be brought in front of a Kenyan judge. Despite the fact that capture by and de15 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR).

International Covenant for Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR) (in force since 23 March 1976). 16

17

Administrative Court of Cologne (note 1), paras. 44 et seq.

See ECtHR, Medvedyev v. France, Judgment of 10 July 2008, Application No. 3394/03, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 11 January 2013); id., Rigopoulos v. Spain, Judgment of 12 January 1999, Application No. 37388/97, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 11 January 2013). 18

19

Art. 12 of Council Joint Action 2008/851/CFSP (note 2).

20

Exchange of Letters between the European Union and the Government of Kenya (note 8).

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tention on the Rheinland Pfalz were declared as in accordance with German national law, the Administrative Court came to the conclusion that the transfer of custody to Kenyan authorities was unlawful as it was in violation of various human rights. Contrary to the opinion of the respondent, the Court found that transferring custody of the claimant to Kenyan authorities is an act attributable to Germany.21 To determine if an act of a multilateral military operation is attributable to the sending State, the Administrative Court of Cologne referred to the judgment of the ECtHR in the Behrami and Others Case.22 In conformity with the ECtHR’s ruling the ‘ultimate authority and control’23 is decisive for the determination of attribution of actions of State armed forces. Based on these findings, the Administrative Court found that the transfer of custody by members of the German Navy constitutes a German act. Despite the fact that the frigate acted in accordance with Articles 3 and 4 of the Joint Action 2008/851/CFSP,24 and the fact that the operative military authority in general lies with the EU, the Administrative Court held that the transfer of custody of the suspects to Kenyan authorities occurred due to concrete orders by the German authorities.25 According to the Court these concrete orders derive from the fact that – immediately after the seizure of the suspects – Germany created a federal cross-departmental decision-making body consisting of members of the Federal Ministry of Defence (Bundesministerium der Verteidigung), the Federal Ministry of Justice (Bundesministerium der Justiz), the Federal Ministry of the Interior (Bundesministerium des Inneren) and the Federal Foreign Office (Auswärtiges Amt) which decided that the claimant and the other suspects were to be transferred to the Kenyan authorities. Therefore, the Court concluded that the decision to transfer custody was taken solely by the German authorities. One other aspect in this regard is that the German Embassy contacted the Kenyan authorities to arrange the transfer of custody finalised with verbal note 63/2009 of 9 March 2009 – not a representative of the EU.

21

Administrative Court of Cologne (note 1), paras. 51 et seq.

See ECtHR, Behrami and Behrami v. France/Saramati v. France, Germany and Norway, Judgment of 2 May 2007, Application Nos. 71412/01 and 78166/10 respectively, available via: http:// hudoc.echr.coe.int/sites/eng (accessed on 11 January 2013). 22

23

Ibid., paras. 133–141.

24

Arts. 3 and 4 of Council Joint Action 2008/851/CFSP (note 2).

25

Administrative Court of Cologne (note 1), para. 58.

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705

Furthermore, the Court found that the transfer itself was unlawful as it did not satisfy the requirements for an extradition to a third State. Even though the transfer of the suspects can neither be regarded as an extradition under international26 nor German national law27 as it took place due to an exchange of verbal notes between Germany and Kenya, the Court determined that the same material standard of protection is applicable because the interests of the suspects were comparable to those evoked under an extradition to a third State.28 Indeed, the Administrative Court referred to the material standard of protection, which was developed by the Federal Constitutional Court of Germany (FCC) (Bundesverfassungsgericht) and has to be fulfilled for an extradition, to provide legal protection in cases where States have conducted an informal transfer of suspects. Based on the jurisprudence of the FCC,29 a lawful extradition requires that the third State guarantee a minimum standard of international human rights in the course of the prosecution and penal implementation. Keeping this in mind, the Administrative Court solely examined if the treatment of the suspects in Shimo-La-Tewa Prison is in accordance with Article 3 of the ECHR and Article 7 of the ICCPR. It came to the conclusion that the conditions of the imprisonment during the time in question were inhumane and degrading. The Court based these findings on the facts reported by the German Ambassador, who stated in his final report that there was an unbearable heat in the entire prison facility, overcrowded cells, noise, inedible food, insufficient sanitary facilities and pests in the prison. The conditions were hazardous to the health of the inmates, and also inhumane and degrading. Moreover, the Administrative Court considered the argument that the conditions in Somali prisons were comparable to those of the Shimo-La-Tewa Prison to be irrelevant for the determination of whether the third State fulfils the minimum standard of human rights protection. Therefore, despite the fact that the Under international law an extradition requires the request of a third state and a decision of the executive to prosecute, see Torsten Stein, Extradition, Max Planck Encyclopedia of Public International Law (MPEPIL), para. 36, available via: http://www.mpepil.com (accessed on 19 December 2012). 26

27

Art. 16 of the Basic Law (note 9).

28

Administrative Court of Cologne (note 1), para. 60.

See Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BvR 253/04 of 8 April 2004, available via: http://www.bverfg.de/entscheidungen.html (accessed on 9 January 2013); id., BvR 1996/ 07 of 20 December 2007, reprinted in: Kammerentscheidungen des Bundesverfasssungsgerichts (BVerfGK) 13, 128. 29

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third State in this case is not a European State, the guarantees contained in Article 3 of the ECHR cannot be modified. Thus, there is a minimum standard of international human rights protection due to the protection of the ECHR and the jurisprudence of the ECtHR, which is not restricted merely to European territory but also has to be applied extraterritorially to suspects of piracy even though prosecution was to be effected by Kenya. Finally, the Administrative Court further found that diplomatic assurances given by Kenya to the EU that it would provide the minimum human rights standard to the transferred suspects were not sufficient to erase doubts about the maintenance of proper living standards in Shimo-La-Tewa Prison. Generally, a diplomatic assurance by a State that it will provide a minimum standard of human rights protection can be regarded as a reliable source in the assessment of extradition processes. Based on the jurisprudence of the ECtHR30 and the FCC,31 the Administrative Court found that in cases in which a State cannot reasonably expect that the assuring State is capable of providing minimum standards of human rights, an assurance is not enough. At the time of Kenya giving its assurance to Germany it was evident to the German authorities that Shimo-La-Tewa Prison would not satisfy the requirements of Article 3 of the ECHR for lawful imprisonment. When the assurances were made on 6 March 2009, the German Embassy knew about the conditions in the prison and that they were not in accordance with international minimum standards. The German Ambassador had visited the prison several times, even as late as December 2008. Although the Ambassador was able to declare that the prison conditions were improving due to the building of a prison library and provision of legal counsel to the inmates, the Ambassador still complained that the conditions in the prison cells were almost unbearable. Since the transfer of the suspects took place on 10 March 2009, the Court found that Germany could not have expected that the Kenyan authorities had been capable of changing these critical conditions within four days, in spite of Kenya’s claim to the contrary in its verbal note to the EU.

See ECtHR, Chahal v. UK, Judgment of 15 November 1996, reprinted in: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 16 (1997), 1093; id., Saadi v. Italy, Judgment of 28 February 2008, Application No. 37201/06, available via: http://hudoc.echr.coe.int/sites/eng (accessed on 22 February 2013). 30

31

See FCC, BvR 1996/07 of 20 December 2007 (note 26), para. 1b.

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Evaluation: Despite the fact that the presence of Somali pirates has been and still is a huge threat to the life and well-being of seamen off the coast of Somalia,32 the Administrative Court has pointed out that Germany has to consider the human rights of anyone suspected of piracy when apprehending them. The Court emphasised further that Germany also has to respect human rights while operating in a multilateral military operation. The desire of the international community to prosecute suspects of piracy and to deter them from further actions cannot take place in a legal vacuum. Even though the circumstances of the military operation had to be taken into account, the minimum standards of international human rights are applicable, especially in the course of prosecution. Thus, even though the Administrative Court of Cologne was confronted with one of the most intriguing problems of international law, it managed to hand down a respectable and convincing judgment. The findings of the Administrative Court, namely that a transfer of the claimant to a third State willing to prosecute them, has to take place in accordance with international human rights law, is convincing. Thereby the Court emphasised that in principle an extradition or the transfer of captured piracy suspects to Kenyan authorities is allowed but solely when a minimum human rights standards are maintained in the prison of the receiving State. In this particular case, however, Germany had failed to recognise that the circumstances for a lawful transfer did not exist as the minimum standards of human rights in the Kenyan prisons were not sufficient at the time of the transfer, especially regarding sanitary and cell conditions in Shimo-La-Tewa Prison. Thus, the conclusion that the transfer to a Kenyan prison contradicted Article 3 of the ECHR and Article 7 of the ICCPR, as this constituted inhumane and degrading treatment, is convincing. Another key contribution of the Administrative Court was its finding that mere improvement of prison conditions and Kenyan assurances on the matter were not sufficient to render it a lawful transfer of a suspect under international human rights law. Nevertheless, the Administrative Court failed to take the opportunity to investigate whether the German authorities were also obliged to prove if the suspects are

32 According to the International Maritime Bureau more than 3100 seamen were abducted and faced with torture or inhuman and degrading treatment or death by Somali pirates in the time between 2008 and 2011, see International Chamber of Commerce, International Maritime Bureau, Piracy and Armed Robbery against Ships, Annual Reports 2008–2011.

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granted procedural safeguards by the Kenyan authorities before transferring them.33 The Administrative Court restricted its judgment on the examination of the conditions of imprisonment. Hereby, it found that no modifications of the applicability of Article 3 of the ECHR are permitted. This again is of enormous significance for the future prosecution of Somali piracy suspects captured by EU military operations. The Administrative Court did not deal with the question of whether a transfer to a third State, as opposed to extradition, which entails procedural safeguards for the alleged perpetrator, is permitted under international law. This is not regulated under international treaty law, nor is such a transfer prohibited under customary international law.34 Particularly, Article 105 of the UNCLOS does not prohibit the transfer of alleged pirates to a State other than the seizing State.35 Another open question in this regard is whether a transfer circumvents the requirements of the German Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen).36 Admittedly, the Administrative Court did not have to consider the question of attribution of human rights violations in regard to the interception and custody of the piracy suspects, as it found that these two measures were lawful. Nevertheless, the failure of the Administrative Court to comment on whether the circumstances of the suspects’ seizure and their subsequent treatment are governed by German domestic or EU law is a missed opportunity to deal with an import issue in the ongoing legal debate over the handling of pirates.37

Tim René Salomon, Menschenrechte und die Strafverfolgung somalischer Piraten – eine Entscheidung des VG Köln und deren Folgen, Zeitschrift für Öffentliches Recht in Norddeutschland (NordÖR) 3 (2012), 124, 126. 33

Klaus Kreß, Die moderne Piraterie, das Strafrecht und die Menschenrechte – Gedanken aus Anlass der deutschen Mitwirkung an der Seeoperation ATALANTA, in: Dieter Weingärtner (ed.), Die Bundeswehr als Armee im Einsatz – Entwicklungen im nationalen und internationalem Recht (2010), 95, 117 et seq. 34

35 For more details, see Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea, The Legal Framework for Counter-Piracy Operations on Somalia and the Gulf of Aden (2011), 197 et seq.; Kreß (note 34); Trésoret (note 13), 581.

Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen), 18 October 2010, BGBl. I, 1408. Kreß (note 34), denies that a transfer circumvents the act. 36

37

Salomon (note 33), 126.

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Additionally, it would have been desirable if the Administrative Court had taken into account the International Law Commission’s (ILC) Draft Articles on Responsibility of International Organizations38 in light of the Behrami and Saramati decision of the ECtHR. According to Article 7 of the ILC Draft Articles on State Responsibility39 a measure is attributable to the State holding ‘effective control’. By referring to the ILC Draft Articles the Administrative Court would have had the opportunity to strengthen its judgment by declaring that Germany had both ‘ultimate authority and control’ and ‘effective control’. Ultimately, the Administrative Court failed to consider the question of the proper basis of authority for the seizure of suspects of piracy. The Court based its findings directly on Article 105 of the UNCLOS. Primarily, Article 105 of the UNCLOS serves to delimit the scope of enforcement jurisdiction, or the right of the State to board and search a ship suspected of piracy on the high seas.40 In its judgment, the Administrative Court avoided the legal debate surrounding Article 105 of the UNCLOS and whether it is determined enough to function as a basis of authority in the sense of Article 104 (1) of the Basic Law, Article 5 (1) of the ECHR and Article 9 (1) of the ICCPR.41 In summary, although the decision of the Administrative Court left some questions unanswered, the judgment is still a contribution to the issue at hand. The fact that national courts are occupied with the prosecution of suspects of piracy brings with it the burden of applying international law correctly and consistently.42 The Administrative Court of Cologne was able to show in its judgment that it had a sufficient understanding of international law while applying it within the boundaries of the German national law system. Thus, the implementation of international law and the application thereof were successful in this particular case.

International Law Commission (ILC), Draft Articles on Responsibility of International Organizations, GAOR, 66th Sess., Suppl. 10, 52 et seq. 38

39 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. (ILC Draft Articles).

Maggie Gardener, Piracy Prosecution in National Courts, Journal of International Criminal Justice 4 (2012), 796. 40

41

For further details in this matter, see Kreß (note 34), 109 et seq.

42

Gardner (note 40), 803.

BOOK REVIEWS

Louise Doswald-Beck: Human Rights in Times of Conflict and Terrorism. Oxford University Press, New York, 2011, 550 pages, ISBN 978-0-19-957893-1. Few topics in the field of international human rights law have been debated as intensively in recent years as the role of human rights in the context of armed conflict and the fight against terrorism. Indeed, the last decade did not lack events giving reason to call the human rights community’s attention to this issue. In particular, in the course of the so-called ‘war on terror’, human rights seem to have been under serious distress on all fronts: indefinite detention in Guantanamo Bay, extraordinary rendition flights, waterboarding, Abu Ghraib prison – to mention only a handful of catchwords. On the other hand, the last decade also witnessed a number of groundbreaking international court decisions – such as the International Court of Justice’s advisory opinion on the Israeli security fence or the European Court of Human Rights’ decisions concerning the wars in Chechnya, the Iraq or Georgia – which further paved the way for the implementation of human rights in situations of armed conflict. All these developments were followed by countless articles and treatises covering all kinds of practical and theoretical legal aspects of the application of human rights in “times of conflict and terrorism.” Despite this vast amount of material already available to the interested reader the book by Louise Doswald-Beck to be reviewed here will undoubtedly prove as a valuable additional tool to access this area of research and practice. As indicated in its preface, the book intends to serve as a guide to international human rights law that applies to “situations of violence, armed conflict, or any other specific security need.” In this respect, it aims at being the basis for a post-graduate course on human rights but also at being a practitioner’s guide, namely a reference work suitable for NGOs, ministries, human rights lawyers, etc. The book’s scope is not limited to one particular human rights instrument. It rather focuses on five ‘general’ universal and regional human rights treaties, namely the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the Arab Charter on Human Rights. Based on these instruments the book’s five main parts deal with ‘Overarching Elements’ (Part I), ‘Absolute Prohibitions’ (Part II), “Fundamental Requirements of Due Process” (Part III), “Limitations to Freedoms” (Part IV), and “Protection of Vulnerable and Disadvantaged Populations” (Part V). As “overarching elements” the book essentially identifies the questions of jurisdiction, imputability, positive obligations, non-discrimination, the right to a remedy, limitations and derogations and the role of international humanitarian law. This general part is followed by an analysis of the prohibition of arbitrary deprivation of life, the prohibition of torture inhuman or degrading treatment or punishment, and the prohibition of enforced disappearances which all qualify as ‘absolute prohibitions’. In the subsequent part on “fundamental requirements of due process” the book puts a special weight on the prohibition of arbitrary detention, pre-trial

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detention, the principle of legality, the right to be heard by a competent, independent, and impartial tribunal and the elements of a fair trial. Under the – slightly misleading – heading ‘Limitations to Freedoms’ the book then, in a more compacted manner, gives an overview of further rights that may particularly be at stake in a situation of conflict, such as the right to home, property, freedom of movement and residence, participation in public life, freedom of expression, association and conscience, and the right to private and family life. Finally, the last part of the book firstly focuses on the role of economic, social, and cultural rights in situations of violence and then, secondly, proceeds with an analysis of the specifics regarding particularly vulnerable groups, i.e. women and persons less than eighteen years of age. The reviewed book will surely serve its purpose of being the basis for a post-graduate human rights course perfectly well. It is not only written in a clear and precise language and well-structured but also edited with great care which is, in particular, proven by the extensive tables of cases, treaties, resolutions and other instruments at the beginning of the book which give references to each page of the book where the respective instrument is mentioned. Further, being about 500 pages in length, the book seems to provide just the adequate breadth of information necessary to gain a broad and substantiated insight into the topic without overburdening the reader with more than they may be able to digest. From a practitioner’s perspective, however, the book’s use might rather be confined to obtaining a first general guidance on the human rights aspects dealt with. This is mainly due to the very broad approach not focusing on one particular human rights treaty but constantly ‘jumping’ between different instruments. While in the academic sphere such an approach may be absolutely appropriate a practitioner’s interest will usually rather be concentrated on the one specific (regional) instrument most relevant to the country the practitioner is working in. Hence, for practical purposes, the reviewed book is certainly not able to replace a special commentary or case book on the applicable treaty. On the other hand, of course, situations may occur in which the case law under one human rights instrument has not yet answered a certain question which might already have been dealt with by an organ of another instrument. In this case, undoubtedly, the book’s broad “international human rights law”-approach may prove advantageous also for practical purposes, since it is obvious that the solution found by one organ might serve as model for the solution still to be found by the organ of another treaty. Thus, after all the present reviewer can only conclude that Louise Doswald-Beck’s book is at any rate a very recommendable reading for students of international human rights law or anybody else having an academic interest in the role of human rights in “times of conflict and terrorism.” But also in the practitioner’s bookshelf the book may prove as an appreciated supplement to the specific treaty related works. CHRISTIAN JOHANN Senior Associate with Redeker Sellner Dahs, Berlin

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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, ISBN 978-951-765-612-2. During the last years, Africa has seen a vast increase in the level of peace-keeping and peaceenforcement operations undertaken either by the United Nations, the African Union or by both of them jointly as part of a common operation. Yet, at the same time, the institutional structure of the African Union dealing with threats to international peace and security has surprisingly been given little, if any, attention in the literature of international law. It is thus more than laudable that the book here under consideration takes a closer look at the Peace and Security Council of the African Union (PSCAU) and its practice until 2011. Not the least the author describes the set-up of the PSCAU, its creation as well as its relationship with other relevant actors in the field, namely sub-regional organisations and the United Nations. The main positive aspect of the book is to be seen in its analysis of those issues that are specific for the PSCAU. On the other hand, the discussion on more general issues of international law, such as the relationship of the PSCAU, and indeed the African Union and other African organisations generally with the Security Council lacks somewhat an in-depth analysis. It would have been also helpful had the author added concrete case studies to the book where the African Union and the PSCAU had acted so as to provide for an analysis to what extent the PSCAU has been successful in fulfilling its mandate or not and thereby indicating factors why that has been the case or not. The author has exclusively covered English-speaking literature which is somewhat surprising that there is, given the clear Francophone character of major parts of the African continent, also quite some amount of relevant literature in French. On the whole, the book adds a quite significant voice to a largely disregarded field of international law certain limitations notwithstanding. ANDREAS ZIMMERMANN Professor of Public Law, European and International Law and European Economic Law and International Economic Law at Potsdam University

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Andrew Lang: World Trade Law after Neoliberalism – Re-imagining the Global Economic Order. Oxford University Press, New York 2011, 385 pages, ISBN 978-0-19-959264-7. Andrew Lang describes this work as “an intervention into a conversation” about the legitimacy of the World Trade Organisation (WTO), which arose around the turn of the millennium and involved many arguments about the conflict or lack of coherence between the international trade and human rights regimes (1). Lang views this conversation regarding the legitimacy crisis of the WTO as fundamentally flawed, with misinterpretations of the historical contexts of struggle within both regimes perpetuating reified definitional visions of each, which themselves close off many avenues of future debate. Lang’s work sets out to address this by advocating an ideational shift for both academics and practitioners of international trade law, in order that debate about the future of the regime can once again be centred on collective purposes, and eliminates its own self-limiting rhetoric. The book is divided into ten chapters in three sections; it begins with an introduction, followed by the first section “Regime Encounters: Trade and Human Rights” comprising five chapters, the second section is entitled “The Trade Regime and the Neoliberal Turn” with four chapters, and the final section concludes. Lang begins by outlining the two arguments which underpin the book’s central analytical model. First the author outlines how the ‘neoliberal turn’ in international trade law should be understood, rejecting the notion that it is an inherent characteristic of the General Agreement on Tariffs and Trade (GATT)/WTO legal framework. The author then goes on to argue that in order to re-imagine the global economic order, it is necessary to do away with certain predominant types of regime critique. In particular, those which either attest a conflict between domestic sovereign regulatory space and the international trading system, or focus their energies on coherence and the appearance that neoliberal trading rules prioritise their own market-based objectives over ‘social’ goals and objectives. Through this lens, Lang argues, it is then possible to “renew the politics of collective purpose” and ultimately re-imagine the global economic order (7). The following section on ‘Regime Encounters’ thoroughly and attentively charts the history of both the trade and human rights regimes. Their origins and purposes are explored, the years of ‘mutual isolation’ attributed, at least in part, to the belief that they were two parts of a single project of global governance, rather than isolated and by their very natures conflicting. Then, with the larger focus on its impact on international economic governance, the emergence of the right to development is charted. Decolonisation and the new voice of developing countries in international economic law, as well as their new membership in what was previously the small ‘club’ of the GATT, changed perceptions on, and the very workings of, the multilateral trading regime – leading to the erosion of the previous ‘mutual isolation’ of the regimes and, coupled with the global economic conditions of the 1970s, the beginning of the neoliberal turn. Lang then goes on to describe the emergence of the global justice movement, which grew to be a huge force for the contestation of the neoliberal regime as it had emerged by the beginning of the 1990s. This is then supplemented by an account of how official international human rights bodies engaged in inter-regime contestation with the WTO in this period. Lang focuses particularly on arguments in relation to the coherence of the two regimes, based on their ‘thin’ view of the role and competence of the WTO. The

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author then further elaborates on how this, as a method of contestation, creates an ideational obstacle to the sort of productive debate which may bring about a re-imagined trade regime in these post-neoliberal days. In this section, Lang clearly demonstrates that both the trade and human rights regimes were historically internally contested. Lang argues that modern critiques which fail to fully recognise this fact necessarily fail to understand the reasons for the ‘neoliberal turn’ within the GATT and WTO regime, and consequently the nature of its relationship with both domestic regulation and human rights law. By demonstrating this, and coupling it with a critique of coherence as the framework for debate over trade and human rights, Lang effectively sets this contribution apart from the mainstream, and shows the ways in which it can better contribute to a future re-think of the role of the multi-lateral trading system. In Section II, Lang moves the focus away from the trade and human rights debate to address the relationship between neoliberalism and the GATT/WTO. Lang begins by arguing strongly against any explanatory model of the GATT/WTO which depicts neoliberal market ideals as structuring the text of the GATT and as somehow being encoded into the GATT/ WTO regime (161–163); particularly against the model set out in John H. Barton/Judith L. Goldstein/Timothy E. Josling/Richard H. Steinberg, The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and the WTO. The inadequacies of these models are highlighted, with particular reference to how they fail to take into account the vague indeterminacy of many GATT provisions, fail to properly understand and address the expansion of the scope of the international trade regime to include non-tariff barriers to trade, and “entirely ignore[…] the interpretative dimension of social action” (172). The following two sections examine these inadequacies further, initially through the decades of embedded liberalism and then through the GATT’s neoliberal turn into the days of the WTO. In these chapters Lang clearly maps out the ideation shift which occurred in the history of the multilateral trading regime and the reasons for it. The shift from this regime as a compromise of embedded liberalism that allowed States to pursue domestic policies aimed towards stability, which Lang argues to be the broader norm vis-à-vis liberalisation in this period, to the model of the GATT as a marketplace in which economic actors exchange concessions and have their expectations protected by the law. This change saw not only a shift in how domestic regulation and non-tariff barriers to trade were treated in the GATT, but also a far greater reliance on technical expertise in the interpretation of rules and evaluation of domestic measures. There was, furthermore, a fundamental shift in how legal obligations in the GATT were viewed in a much more general sense. As Lang describes, where the GATT dispute resolution system had once been a forum “to contain trade disputes – to rebalance expectations and to avoid escalation” (205), with ambiguities in the law allowing for flexibility “to express whatever informal community consensus existed at any particular point in time” (204); it became a rigid and far reaching system which left no room for the pursuit of collective purposes (258). In the concluding part, Lang describes the WTO’s response to its legitimacy crisis. While continuing to rely heavily on technical expertise in the evaluation of cases and interpretation of the law, the WTO has moved towards a procedural style of review in cases where domestic

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regulations raise controversial issues. Here Lang departs from the book’s largely theoretical and historical approach to directly address principles and provisions of WTO law: non-discrimination, general exceptions under Article XX, the WTO Agreement on the Application of Sanitary and Phytosanitary Measures and related case law are all examined. The analysis provides a convincing backdrop for the argument that the recent turn to procedural review, the calls for deference to national decision making authorities, and any other reform agenda which continues to be premised on the ‘thin’ view of the mandate of the WTO, is unconvincing in today’s interdependent global economic community and under the WTO as presently conceived. Lang finally calls for debate which sets out “with a sense of collective moral responsibility” about the consequences of the practices of the WTO and seeks legitimacy in understanding and addressing these consequences, rather than having them dismissed as outside the mandate of the organisation. Lang argues throughout this work that the WTO is not inherently locked into a neoliberal agenda, but that present conceptions of how to contest ideas, rules and ideologies around the WTO serve to normalise and concretise this view. By arguing against any such self-limiting conception and demonstrating the ideation shift which occurred, Lang claims that this book sought to intervene into a conversation, but perhaps this work seeks to start a ‘new’ conversation of its own. AMBER ROSE MAGGIO Research Associate, International and European Law at the University of Trier

Sir Hersch Lauterpacht: The Function of Law in the International Community. Oxford University Press, New York, 2011, xlvii+477 pages, ISBN 978-0-19-960881-2. This book has long been a classic in the literature of international law, and the edition currently under review is a reprint of the original that was published in 1933 by the same publisher. As the foreword by Sir Elihu Lauterpacht aptly sums up, the book “may properly be regarded as the most important” among the many contributions by its author to international legal writing. Or, as Professor Koskenniemi concludes in his learned introduction to the reprint, it is “the most important English-language book on international law in the twentieth century” (xlvii). When the original version of this book came out in 1933, the author explained that the reason for bringing out this volume was to deal with a then current doctrine of nonjusticiability of international disputes (ix). In the course of developing his analysis, however, the author quickly found out that the scope of judicial function in international society was a topic that went beyond a critical study of the doctrine. For Sir Hersch Lauterpacht, the central question became one of the limits of the rule of law, or the place of law in society, which is common to any system of law. In particular, the book seeks to examine the conflict between security and justice, which is, effectively, a question of the Rule of Law in international

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relations. The book, consequently, became an exposition of “the principal issues of the philosophy of international law” (x). The timeliness of the reprint of the 1933 masterpiece is plain to see, as the ideal of the Rule of Law in international relations has become an important item on the agenda of the United Nations (UN) in the 21st Century – with the 2000 United Nations Millennium Declaration. The debate over that idea in the UN forum arose initially in the special context of postconflict situations, where interests in security and justice were in the usual mode of conflict (see the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (2004), paragraph 6). It is, of course, recognised that the focuses of the UN debate and of the book under review differ, since the latter approaches the issue by reference to the international judicial function, whereas the former starts from the angle of implementation of rules of international law at national level, before it extends the angle to the international level. When the topic of the Rule of Law is examined, one may be struck by the fact that the issues that engaged the attention of Sir Hersch many years back remain unresolved in today’s world. Consequently, one or more revisits are inevitable. The structural permanence of the international legal order seems to be the reason why those issues persist, and the current state of State practice, instead of facilitating a resolution thereof, merely brings again the issues to the fore (xxx). The reprint contains the partially edited text of first sixty pages by the author himself, and the main expansion, with updated information on relevant treaties, is to be found in section 21, Chapter II, on the General Act for the Pacific Settlement of International Disputes, of 1928, and section 21 (a) and section 22 of the same chapter. While Professor Koskenniemi observes that the book “could only have been written from within the German tradition” with an emphasis on the ultimate foundation of the international legal system (xxxv), it is felt that the issues of gaps in international law or non-liquet, the lack of legislature, and the conflict between political judgment and legal means of settlement of disputes, are always keenly felt by any international lawyer who has had some practical experience or spent time in teaching and research of this subject. The urgency felt by Sir Hersch is probably shared by all scholars. On several counts, the book remains relevant to today’s world. First, the issue of non-liquet is still topical. In Sir Hersch’s view, the gaps in international law may be filled by the normal exercise of international judicial activity (142). Further the author pointed out, that with much insightfulness, that the gaps lie not in the fact that “there is no legal answer to the case in question,” but the answer thus given “seems to be legally unsatisfactory” (109). This point can be seen clearly in certain recent cases before the ICJ. In the 1996 advisory opinion of the ICJ in Legality of the Use or Threat of Nuclear Weapons, the Court, in answer to a specific question raised by the UN General Assembly (UNGA), stated, by a vote of seven to seven, with the President’s casting vote, that “in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of selfdefence, in which the very survival of a State would be at stake […].”

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The Opinion of the Court thus ended with a non-liquet. In the 2010 advisory proceedings concerning the legality of Kosovo’s declaration of independence, the Court’s finding, by a vote of ten to four, was that “the declaration of independence by Kosovo adopted on 17 February 2008 did not violate international law.” One of the two main reasons for that conclusion was that “general international law contains no applicable prohibition of declarations of independence.” In the light of the two cases, it is apparent that, by providing answers to sensitive questions like those in the two cases, the ICJ has discharged its judicial duty. The answers could have been given in different senses, but the point is that gaps in law are not an obstacle to the exercise of the judicial function of the Court. As long as answers are forthcoming, there is force in Sir Hersch’s opinion that international law is a complete system in which an answer, however unsatisfactory it may be from a juristic point of view, can always been given by courts (109). Viewed in this light, non-liquet may not be fatal to the effectiveness of the system of international law. Secondly, the argument of a political nature of legal disputes is still facing international judicial bodies. Sir Hersch considers that it would be easy to show that all international disputes are of a legal character, capable of an answer by applying legal rules (166). The author invokes the debate of the right of self-defence (185–190), in order to show that, while the right is of the highest importance for the State concerned (167 et seq.), it is eminently a legal issue, being a legal right (187 et seq.), and usually enshrined in treaties or customary law. The point where it becomes political is when some States see it as not amenable to judicial determination, but to the sole judgment of their own. If the power of determination as to the legality vel non of the right lies in judicial fora, it is easy to be seen as a legal issue. This view can be shown even clearly by reference to the ICJ advisory opinion on the use or threat of nuclear weapons, referred to above. Thirdly, an international legislature is still missing, which both undermines the capability of international society to deal with emerging challenges by making changes to existing law and renders the issue of non-liquet seemingly perennial. To remove the dangers arising from the lack of such a legislature, Sir Hersch had faith in international judges (296–300), voluntary agreements between States to submit their disputes to obligatory judicial settlement (316–318), and certain institutions, judicial or political (344–350), which may provide the necessary starting point for effecting changes in law. Judicial creativity is indeed one of the solutions in this regard. Whether this will mean that international lawyers should rule the world (xlvii) remains an open question, since judicalisation has its own pitfalls (id.). The book’s conclusions end with a call upon international lawyers to perform two tasks to make the system of international law approximating that of municipal law, rather than to perpetuate the imperfections of the former system so as to justify it as a ‘specific’ law (439 et seq.). The two tasks are the abandonment of the distinction between legal and political issues (442 et seq.) and the taking of the stance that law, though not a panacea, is an essential condition of peace (445), which itself is a legal postulate (446). The implications are clear that international law can play a vital role in securing peace in international relations, and by submitting to its authority, States can rest assured that their disputes can be settled by a law

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that leads to the ultimate aim to which they themselves aspire. There may be other solutions to those disputes (420–422), but in an unchecked fashion, those solutions may only exaggerate the anarchy and conflict that a legal order is designed to prevent and avoid. In brief, the book tackles issues that are both fundamental to the system of international law and recalcitrant to solve for international lawyers. The generalisations exposed in the book, reached by the author on the basis of a solid grasp of all factors that infused in the then international society, has given the book a vigorously analytical style, reminding us of the German tradition in the study of law. The logical completeness of the narrative has not been achieved at the expense of detailed examination of important incidents of State practice. On the contrary, the close reasoning of each section and chapter is based on a formidable learning of current affairs, history, and doctrines. The light which the book throws upon the issues of non-liquet or the distinction between legal and political issues in international relations is as illuminating as it is enduring. It may be lamentable, but strikingly true that “it heralds the end of jurisprudence and grand theory,” and the book is “the last book on international theory” (xliii). From then on, legal pragmatism takes the reins. The book is thus not only a classic, but a jurisprudential gem for those who are about to enter the profession of international law. For academic lawyers in particular, the book will remain a standard reference book on the questions of non-liquet, Rule of Law, and the nature of international community in the traditional mode of coordinating subjects, as well as on the history of modern international law in its development towards a mature and advanced legal system. Its inspiration will linger for years to come. BING BING JIA Professor of International Law at Tsinghua Law School

Marko Milanovic: Extraterritorial Application of Human Rights Treaties. Oxford University Press, Oxford, 2011, xxiii + 304 pages, ISBN 978-0-19-969620-8. In this treatise, Marko Milanovic deals with a highly relevant question of modern international law: when is a State obliged to fulfil its human rights obligations towards individuals located outside its own territory. The book is confined within the area of civil and political human rights. Although the book deals with all human rights treaties in this field, e.g. the International Covenant on Civil and Political Rights or the Convention against Torture, its main focus is on the highly developed jurisprudence of the European Court of Human Rights (ECtHR) in this area. The book is divided into five chapters, with the second and fourth chapters constituting the core of the book. After a short introduction, Milanovic convincingly illustrates the meaning of the term ‘jurisdiction’ as used in human rights treaties. As a starting-point the author uses the Bankovic decision of the ECtHR, in which the court held that the term ‘jurisdiction’ in human rights law has the same scope as ‘jurisdiction’ in general international

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law. Milanovic argues that this assumption is unsupported. Whereas jurisdiction in general international law limits a State’s right to regulate conduct or the consequences thereof, Milanovic argues that “the word ‘jurisdiction’ in various human rights treaties refers to a power that a [S]tate exercises over a territory, and perhaps also over individuals” (53). Milanovic then goes on to convincingly demonstrate that the concept of jurisdiction and the concept of State responsibility are two different things which have to be strictly distinguished from each other. In this section, Milanovic is successful in making more comprehensible a complicated issue which has often been misunderstood. Milanovic makes it quite clear that the notion of ‘jurisdiction’ is not related to the question of whether an act is attributable to a State, but that it is a threshold-criterion and thus relates to the question of whether a State has infringed an international obligation or not. At the same time, Milanovic sheds some light on the different interpretations of the well-known Loizidou decision. For the author, what the ECtHR held was not that by virtue of the fact that Turkey has jurisdiction over the area, and all acts committed by the authorities of the Turkish Republic of Northern Cyprus (TNRC) are attributable to it, but that Turkey is, due to its effective overall control over the relevant area, obliged to fulfil its positive obligation to prevent human rights violations. This obligation applies irrespective of whether the alleged acts committed by the authorities of the TNRC are attributable to Turkey or not. By virtue of its effective overall control over the area, Turkey had the obligation to prevent the TNRC from violating human rights (46). In the third chapter Milanovic illustrates the competing political considerations which judges take into account when deciding upon the extraterritorial applicability of human rights treaties. Milanovic insightfully describes, inter alia, how the legal concepts of sovereignty and territory compete with the human rights regime’s aspiration of universality. Whereas the former can be used to limit the extraterritorial application of any human rights treaty, the latter can be used rather to extend the extraterritorial application of such a treaty. With this chapter, Milanovic enables ‘newcomers’ to better understand the case-law of international and national courts related to these issues. Milanovic in chapter four addresses the question of whether jurisdiction should be considered as control over territory or as control over individuals. It starts with a presentation of several different scenarios where extraterritoriality could be relevant. These case-scenarios not only encompass the well-known cases of extraterritorial killings or abductions but also one of the most important issues today – transboundary environmental harm. After demonstrating these possible scenarios, Milanovic then goes on to examine whether an interpretation of jurisdiction which is conceived of as mere control over territory is able to resolve these cases in a satisfactory way, illustrating the drawbacks of such an interpretation. In the author’s view, conceiving of jurisdiction as control over territory would, in the end, mean that too many scenarios – e.g. the ‘drone wars’ or Bankovic scenario – would slip through the cracks although these scenarios should be covered by a human rights treaty. A mere ‘spatial-approach’ to the notion of ‘jurisdiction’ is thus too rigid and has to be mitigated. In the following, Milanovic then presents and discusses the well-known ‘personal-approach’ to jurisdiction which advocates that the mere control over an individual is sufficient to fulfil the jurisdiction criterion. Milanovic convincingly demonstrates that such a line of interpretation has evident drawbacks.

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In the author’s view, conceiving of ‘jurisdiction’ as mere control over individuals would mean that the criterion loses any meaning as a threshold, “since it simply collapses into the position that a state has human rights obligations whenever it can actually violate the rights of the individuals concerned” (119). Instead of concluding at this stage, Milanovic goes on to introduce, in a more than convincing line of argumentation, his own approach to the issue. For the author, the distinction between negative (the duty to respect human rights) and positive (the duty to secure and ensure human rights) obligations in human rights law is essential. Milanovic argues that a State needs nothing more than control over the conduct of its agents to fulfil its negative human rights obligations. In contrast, in order to fulfil its positive human rights obligations, a State must exercise effective control over the respective area. Hence, when the duty to respect human rights law is in question, an individual is already then within the jurisdiction of the respective State when this State has control over the conduct of the individual, irrespective of whether the State has sovereignty over the relevant area or not. However, it is necessary that the State controls the respective territory to some degree when positive obligations are at stake. After addressing these issues, the fifth chapter is devoted to the relationship of international human rights law and international humanitarian law. Milanovic then ends with some general conclusions and sums up his key findings. In sum, Milanovic’s book offers an excellent, well-researched and perceptive analysis of a highly relevant issue. The line of argumentation throughout the whole book is both reasonable and persuasive. What makes the book quite ‘vivid’ is the way Milanovic incorporates cases into the text, using well-known and important cases like the Bankovic or Loizidou as startingpoints for subsequent deliberations and turns back to them in an effective manner whenever the treatise runs the danger of becoming too academic. This technique renders a relatively complex topic into a useful and illustrative book, and one which is certainly a worthy read. Moreover, it is refreshing that Milanovic does not try to reconcile the different decisions in this field, but rather attempts to disclose the drawbacks and inconsistencies of these decisions in order to then argue for a radical re-interpretation of the notion of ‘jurisdiction’. Apart from the fact that it could sometimes be hard for an inexperienced reader to distinguish between the lex lata and the lex ferenda, the book does not appear to have any further weaknesses. Perhaps criticisms could be levelled in relation to whether the third chapter is well-placed between the second and the fourth, or whether it was really necessary to attach a chapter about the relationship between human rights and humanitarian law; but to be honest, such a discussion runs the danger of becoming pedantic. The present reviewer believes that Milanovic’s book will become, if it is not already, one of the standard reference texts concerning the extraterritorial application of human rights treaties. TOBIAS HOFMANN Research Associate, International and European Law at the University of Trier

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William Schabas: Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford 2012, 232 pages, ISBN 978-0-19965307-2. More than 50 years after the Nuremberg International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE), a decade after the International Criminal Court (ICC) came into being, and with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) conducting the final trials, the fundamentals of international criminal law still intrigue scholars as well as the general public. In this book, William Schabas addresses the evolution of international criminal law as well as its contribution to international justice and unfolds his answers taking recourse to the author’s extensive academic work. Schabas’ methodical stance may be perceived as a ‘double triad’. The first triad is temporal: Schabas examines the historic trials of Nuremberg and Tokyo and considers the evolution of the principles developed in Nuremberg in the case law and procedures of the ICTR and ICTY, which leads to an assessment of the ICC and its Statute. The second, truly fascinating triad can be found in Schabas’ constant linkage of international criminal law with humanitarian law and human rights law, never losing sight of the necessary and dogmatically coherent interdependencies between these branches of international law. The book is divided into eight chapters: the elaborate introduction together with the first chapter on the identification of international crimes not only sets out Schabas’ approach and aims, but also serves as an introduction to the discipline of international criminal law and its main sources and challenges. Notably, Schabas addresses “policy makers, diplomats, and journalists, as well as academics and students” (3). Thus, a reader expecting an in depthanalysis of jurisprudence and scholarly writings might rather turn to another of Schabas’ publications, namely: “The International Criminal Court – A Commentary of the Rome Statute” and the author’s treatise on “Genocide in International Law.” Footnotes and references to the cases discussed are scarce, and, furthermore, a legal academic might not find the reflective and sometimes circular approach entirely satisfying (for example, the history of the crime of genocide is not only described in the chapter on the nullum crimen sine lege principle, (62), but again explored in chapter on genocide itself, 106). Still, one should not sell ‘Unimaginable Atrocities’ short, since it provides pointed and stimulating thoughts on the discussions of historic and contemporary trials, often brought up almost casually throughout the chapters. These may include Schabas’ criticism of cultural bias when touching upon the presumed dominant role of the United States in the setting up of the IMT and the IMTFE: in Schabas’ view, this perspective might be due to a lack of access to memoirs and scholarship in Russian language (10). In other instances, however, Schabas’ scrutiny is detailed and meticulous, for example when criticising arguments brought forward in footnotes of policy papers issued by former ICC Prosecutor Moreno-Ocampo (190).

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Schabas’ introduction to international crimes begins with an elaborate distinction between the notion of War Crimes Tribunals and how this name does to a certain degree contradict the broader jurisdiction of the Military Tribunals, the ad hoc and hybrid tribunals and the ICC (25). Schabas points out that the prohibition of genocide is “simply the most extreme and radical form of protection of ethnic minorities and condemnation of racial discrimination” – a topic that is revisited in the respective later chapter. The examination of the nullum crimen sine lege principle (chapter 2) and its influence on the IMT and the IMTFE is dedicated to the question whether the crimes laid down in the respective charters reflect a ‘steady state’, in terms of prohibitions that were existent but merely unexplored before World War II, or rather if the convictions at Nuremberg and Tokyo constitute a ‘big bang’ for international criminal law (53 et seq.). Additional to acknowledging that the retroactive application of crimes against humanity in Nuremberg constitutes an exception to the nullum crimen sine lege principle (57), Schabas points out that in its core this philosophy can also be found in the findings of the ICTY, and, thus, the subject of retroactivity persists even in contemporary discussions (72). The discussion of victor’s justice refers, in the context of the IMT and the IMTFE, to the members of the tribunals being representatives of the nations which defeated the Axis powers in World War II (chapter 3). The author does not focus on the fairness of the trials as such: on balance, the proceedings certainly met the standards [of fairness] of the time (74). However, Schabas emphasizes the role of the prosecutor. The review of the prosecution at Nuremberg and Tokyo (73–79) and at the ad-hoc Tribunals (77–80) leads to an assessment of the prosecution at the ICC. Schabas explores the basis on which – inevitable – choices are made regarding the institution of investigations, stressing the budgetary constraints of the Court (83). In this context, however, Schabas criticism of (former) Prosecutor MorenoOcampo rings sharp: “[a]ll that the Prosecutor’s decision [to not investigate the conduct of British troops in Iraq] did was confirm suspicions that the Court was not the politically neutral body its proponents had bragged about” (85). Thus, the ICC “continues to plod along, consistently failing in the targets that it has itself set” (92). Schabas concludes that the necessary strive for prosecutorial legitimacy has to openly address and admit political influences (97). The subsequent chapter is dedicated to a prominent subject of Schabas’ academic work. The Genocide Mystique addresses, the content of the prohibition to commit genocide as well as its influence on policymakers and journalists. Schabas explores “the rhetorical power of the g-word” (103) while maintaining that genocide in the context of international criminal law is first and foremost a legal concept (104) – thus, references to genocide in other disciplines and contexts unavoidably differ. The illustration how and why the crime of genocide was linked to the waging of aggressive war in the Nuremberg Charter is followed by a discussion on the inclusion of political groups in the Genocide Convention of 1948 (unfortunately without footnotes and references, 111). Schabas underlines the importance of not extending the scope of genocide beyond the Convention’s wording (113). Likewise, Schabas refuses to accept genocide as a justification for unilateral military interventions, reacting to the tendency to enlarge the scope of the term ‘genocide’ in political discourse (118).

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The following chapter on mens rea and State policy is, by comparison to the previous chapters, more focused on the legal theory of international criminal law, dealing with the question of whether crimes against humanity require a plan or policy (132). The author concludes that the plan or policy requirement in the context of crimes against humanity is necessary “to better articulate the relationship between [S]tate responsibility and individual criminal liability” (150). Establishing historic truth, as Schabas observes in chapter six, cannot be an objective of international criminal tribunals – at most, the perceived history recording function appears to be a by-product (160). This is elaborated upon with references to arguments over the Katyn massacre in the IMT, the Eichmann trial or the trial of Slobodan Milošević (163). In context of the Rwandan genocide, Schabas maintains that a right to truth that is forming under human rights law might increase demands to international tribunals (170). The possible tensions between victims’ rights, international criminal law and the demands of post-conflict societies is also explored in the chapter on the much-discussed peace versus justice debate and the question of a prohibition of amnesties under customary international law. Schabas ultimately rejects such a prohibition since amnesties may serve as a mechanism to end conflict in appropriate situations (180, 188), despite increased discussions of the victims’ right to justice (183). The final section of the book deals with the crime of aggression. In the beginning, Schabas describes the incorporation of aggression in the Rome Statute, namely the 2010 amendments to the Statute regarding the definition of aggression in Kampala. Surprisingly, Schabas criticises a perceived lack of interest on the side of NGO’s to criminalise aggression – according to Schabas, this reticence stems from an increased military tendency in human rights discourse (again referring to unilateral military interventions, 205). The author reiterates that accepting unilateral military action accepts the loss of life necessarily entailed by any military operation too easily (207), whereas the criminalisation of aggression serves the pursuit of peace (207). The latter can be achieved if international criminal law, human rights law and humanitarian law are perceived as compatible and complementary elements of international justice, with a right to peace as unifying principle (221). Ultimately, Schabas account of the evolution of international criminal law represents a stimulating introduction for an interested novice, as well as a thought-provoking and enjoyable reflection for scholars. JOHANNES FUCHS Research Assistant at the Walther-Schücking-Institute for International Law at the University of Kiel

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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, ISBN 978-0-19-957341-7. In this varied discussion of the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) legacy, we find the first little irony on the inside jacket: “[t]he publication of this book coincides with the year of cessation of major trial activity at the ICTY.” Had that been true in 2011, the Tribunal’s legacy would be quite different, with one of its most significant trials – Mladić – outside the calculation, along with most of Karadžić, the Gotovina appellate decision, and of course the reaction. One must go to print sometime, and it is not too early to ask about the ICTY’s legacy; still, how contingent debates about legacy turn out to be, how extravagant early claims were, and how late in the game bets are still being placed. Legacies are messy. The editors know the topic is overwhelming, greater than their collective powers to encompass it. But their introductory apologia for their incomplete efforts is understated and elegant, and we should not evaluate such a text against an impossible standard of omnivocality: no one could sum the Tribunal’s legacy in 550 pages, so the better question is how the editors made use of them. Confronted with an unimpeachable set of eighteen commentators, we must consider the book as a whole – a precarious undertaking. Is it a whole? Is there coherence among its parts – at least collision? The evidence from the book’s structure is uncertain. The grouping of chapters – the interchangeable ‘Battlefields’ and ‘Improvisation and Discovery’ – seems arbitrary, ad et post hoc. That simply places this edited volume in the best, certainly the most common company among exemplars of this most tired workhorse of academia. Still, common themes can be found: the need to fit the institution to the nature of international crimes (and how hard this is to do); and the urge to make sense of change over time – less legacy than accounting. These themes are related: models for fitting this institution to its circumstances are histories of its development. They are also related by a shared silence, in most chapters, on the most consequential question of legacy. Theme 1: Fit the Institution to the Circumstances (But Which Ones?). Early chapters argue that there is no way to measure a tribunal’s legacy without rigorously “articulating for which goals these institutions are being held accountable” (King/Meernik, 52); similarly, Whiting measures procedures “by how well they match up with the purposes and capabilities of the institution” (88). Later chapters apply similar models: van der Wilt’s “central assumption is that defences […] cannot be severed from the specific context from which they emerge” (277); Acquaviva argues the residual mechanisms are grounded on a balance between conflicting institutional concerns. Of course, it is one thing to say ‘first principles’, another to decide what they are. The actual exercise yields “wide divergence of expectations and opinion regarding the missions of […] tribunals” (King/Meernik, 52). The approach is generally one of two. Some define expectations downwards – institutional defence by attrition. Thus, Eser cautions against identifying political obstacles – to reconciliation and peace-building in the former Yugoslavia – as the Tribunal’s failures (108). At the same time, he points out that the ICTY has embraced

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broader claims such as reconciliation (113), along with historical record and truth (121) – a view he also embraces. Whatever the precise goals, success is to be achieved by fitting expectations to the institution. This is an excellent prescription for the future, less satisfying for asking about that past, about what this institution accomplished. Theme 2: Understanding Change over Time. The procedural chapters introduce a related theme about the ICTY’s changing processes. Two theories contend: one stresses the experimental and improvisational; an alternate view advances an intentional, strategic theory of change. Whiting sees the ICTY as “a laboratory […] for developing a set of workable procedures” (84–85). Ad hoc revision was driven by the nature of international trials: “scale, complexity,” (86) and “circumstances […that created] substantial challenges to collecting evidence” (94). The results – flexible evidentiary rules, extensive written submissions – show experimentalism’s malleability: Zahar charts the ICTY’s improvised criminal code, while Vierucci’s discussion of wartime special agreements shows how contingent that improvisation was; van Sliedregt tracks command responsibility across three generations of defendants. Criticisms of ad hockery arise too: Tuinstra sees the system of self-representation as unsystematic (373), suggesting the ICTY has experimented but not learned – for Treschel, “a dangerous experiment” (188). Authors characterise these processes differently – Whiting’s experimental engagement is Eser’s ‘chauvinistic competition’ between national models (120) – but most accept a theory of haphazard change. Combs suggests something different. Rather than Whiting’s learning curve, for Combs change is anticipated, a “maturing of international criminal law as a whole” (297). The early Tribunal had a precarious legitimacy, and allowed defendants “free rein to select their counsel” in order to secure their cooperation and avoid challenges (320). Newer, stricter standards for Karadžić “can reasonably be seen as signalling a new, less tolerant attitude” (313). Combs’ arguments has implications for future tribunals: Whiting’s path dependence is, for Combs, strategic, predictable – not simply a legacy, but a model. Is this right? The editors’ “favela of ICTY procedure […] that has developed around the self-represented accused” (1) better captures the shambling, seedy contours of this ill, – even unplanned construction. But Combs’ argument is a serious one. And whether by improvisation or intention, patterns were set (like the Tribunal’s adversarial ‘birth defect’ (Eser, 120), or the ICTY’s confused genocide jurisprudence (Jørgensen, 249), and that is a legacy too, “one of the most enduring […] – the journey away from politics and towards law.” (Combs, 321) For if the context for the ICTY was no context – a freewheeling frontier – that is no longer true for the International Criminal Court, whose horizons have been defined by this first modern tribunal; bold experimentation may not continue (88)). Inward Abstraction. These two themes share a focal point, and therefore a blind spot: an orientation that sees the external world as a challenge the Tribunal must meet – data for calibrating the institution.

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This view lacks the political and particular. For all the insistence on evaluating institutions in light of real conditions, there is little engagement with Yugoslavia: chapter after chapter parses some procedure or norm, but says little, if anything, about its impact there. Sluiter’s chapter, on the effect of individual opinions, is a missed opportunity to ask about effects outside the Tribunal, making only oblique references to ‘perception by the public’ (197). Analysing the Tribunal’s “‘discovery’ of the crime of persecution” (220), Nilsson shows the experimental balancing of considerations that produced “a suitable category to address the types of crimes committed in the former Yugoslavia” (219) – without a word about the reception of this ‘novel’ crime (246). Similarly, in Acquaviva’s discussion of residual mechanisms – the Tribunal’s literal legacy – the region surfaces only as the challenge to protect witnesses’ identities (520) and in regret that artifacts from Srebrenica were destroyed without consulting ‘local stakeholders’ (522). Abstraction causes deformation. Ohlin’s critique, a “new account of punishment […] designed to vindicate the Rule of Law” (332), aims at “restoring international peace and security, deterrence, [and] retribution” (323). With such goals, one expects an examination of the post-Yugoslav condition, but the pull of abstraction is strong: A war criminal is “not just as an enemy of his victim but […] of the community” (332) – by which Ohlin means the international community. Indeed, when effects are in focus, they are on the international plane, like Treschel’s concern with the ECHR, or Prost’s survey of State cooperation that barely touches the Balkans. If anything, King/Meernik’s plea for closer attention to the ICTY’s constituencies simply provides a conceptual basis for what many chapters do: think about the institution itself, in relation to institutions like it – the International informing the Literature. A few chapters turn to the former Yugoslavia, but most do not. Clark’s is the signal exception, engaging comprehensively with the Tribunal’s legacy in the former Yugoslavia – with the legacy that surely should matter more than the Tribunal’s institutional concerns, which after all are “necessary adjunct[s] of its performance for whatever purposes it has” (Eser, 111). Reconciliation … The first two chapters directly address the impact of the Tribunal in the former Yugoslavia. King/Meernik, proponents of the ‘fit-the-institution-to-its-purposes’ approach, conclude that the ICTY wasn’t designed to do much reconciliation or “to affect the interests of its local constituents in the former Yugoslavia” (13), and “[t]oo often we find that tribunals […] have been evaluated and unfairly criticized for their shortcomings in areas […] where they possess no explicit mandate, or […] where their powers are limited” (52). But their own tour d’horizon reminds us of the enormous difficulty in saying anything meaningful about impact, and the endemic tendency to look for, and find, something positive. For despite lowered expectations, King/Meernik are pretty bullish on the Tribunal, finding all kinds of tentative but extraordinary impacts, such as a ‘preliminary and suggestive’ (49) correlation between convictions at the ICTY and improving human rights records in the Balkans that leaves an interval in the reader’s confidence. There is much to criticise about King/Meernik’s methodology – ill-suited, clinical, detached, and incongruent – but readers can profitably turn to Clark’s chapter for succinct criticism, using those adjectives, of similar work by Meernik (60 et seq.). Clark’s own interviews yield little evidence of impact, showing what should be clear to all observers: reconciliation has

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not happened. It is hard to tell clear causal stories about anything, but harder to tell them about nothing. Yet so strong is the desire to see something, that, even Clark pleas defensively for realistic baselines (57). As with King/Meernik, this elides the role outsized expectations played in the creation, operation, and reception of the ICTY. Those are questions valuable in themselves, and useful, too, in considering future designs. Given the sensible framework King/Meernik propose for a sensible institution, why did we not use it? It is implausible that the Tribunal could do much to bring peace to the former Yugoslavia – therefore worth pondering why sensible people ever thought it could, and built a Tribunal to help do it. Nor, admitting the difficulty, should we instantly defend the institution on whatever limited grounds we can. If one weren’t so busy researching the legacy, one might ask, why are we doing this? The danger in Tribunal scholarship’s analytic narcissism is not only its inattention to effects, but its casual assumption that they exist, with proofs defining ‘impact’ as development of the institution itself. Contributions to the law, public relations – these are institutional artefacts, not evidence of social rapprochement or deeper peace. Even if things were getting better – and a trip around the region can be discouraging – it is equally possible that the causal arrow is flying in the opposite direction: that people’s views of the Tribunal are a function of other changes. The ICTY may be a weathervane, not the weather. … And Truth. At core, Clark is right about the irreducible problems that go beyond presentation: “tribunal truth is ultimately less important for reconciliation than the everyday events and developments taking place within individual communities,” which contribute to the “the problem of rejected truth” (73, emphasis original). The conceit that correct processes (a dossier system or ‘witnesses of the court’ (Eser, 134, 145–146); the inevitable calls for better outreach) will produce a magisterial, dispositive truth – which Eser assumes leads to reconciliation – fails to apprehend the context to which those truths are addressed. Van der Wilt’s recounting of Norwegians’ outrage at the acquittal of General Rendulic after WWII (286) is a reminder that correct doctrine does not guarantee truth’s acceptance by an injured community, which prefers a good hanging. And what is this Tribunal truth? We may imagine two kinds: fact-specific narratives, and narratives of characterisation. The latter, if accepted, would be more valuable to reconciliation: No one could or needs to know the details of six million murders, but everyone needs to know about the Holocaust. The kinds of procedural moves many of these chapters discuss in confident detail will, at best, produce a narrow fact-specific truth; they seem incapable of contributing to dispositive general narratives. The real problem with expecting Tribunal truth to be accepted is that acceptance is not a question of procedural design, but of political orientation. Debates over procedural issues simply replicate this underlying problem of international criminal law’s relation to the political. Limiting self-representation can prevent prominent defendants – Milošević, Šešelj, Hussein – from making trials into political theatre (176, 179), but fixing a procedural defect doesn’t fix the underlying fact that international trials have a political context; it reads out, but does not erase, what Combs reminds us is “precisely what is disputed in the individual actions that are the object of the trial” (319, quoting Koskenniemi).

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Consider the penultimate chapter, sketching the ICTY’s codification project (474 et seq.) – surely one of its great legacies within the law. Zahar’s focus is the creation of the law itself – there is no discussion of the war – and one might think that was its purpose. Yet what of that law’s use – 20 years of application? Do we build only for the future? Do we only teach others to teach others, or do we expect, in each generation, some to go out and work in the garden? For it was a particular evil growth, in those years and in that place, and it was out of its soil the particular rules sprang, and to which, in turn, they were to be turned. It is an ad hoc tribunal: we associate the Latin with ‘unsystematic, unplanned,’ but it actually means ‘to this’. A Lawyer’s Accounting. Perhaps it is unfair to place so much weight on what is not here. This is a lawyer’s book, for lawyers. The themes are close to practice, attentive to process and doctrine; several chapters are excellent – but in ways that underline the problem of inattention to the Tribunal’s broader legacy – the problem with the Tribunal’s broader legacy, to which this book, as a whole, does not attend. Not everyone must ask about core purposes all the time, but this book set out to do just that, to measure the Tribunal’s legacy. For a project that “harbour[s] … a particular interest in the question of the difference, if any, that the Tribunal has made in the countries of the former Yugoslavia” (1), the inclusion of just two essays in reply, in a volume mostly silent on the matter, is disappointing, and disappointingly typical of an entire discipline turned inward and introspective: procedure, doctrinal debates, everything a lawyer might desire – if not, perhaps, a grieving widow or an angry man walking into a voting booth in a town he did not grow up in. All to say that, sadly, the editors have nonetheless done better than many. A curiously narrow legacy. TIMOTHY WILLIAM WATERS Indiana University Maurer School of Law Alexander von Humboldt Stiftung Experienced Research Fellow Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

Antonios Tzanakopoulos: Disobeying the Security Council. Oxford University Press, New York, 2011, 276 pages, ISBN 978-0-19-960076-2. The book makes a subversive and unorthodox argument, as Tzanakopoulos calls for ‘disobedience’ to the United Nations Security Council (SC). The author evaluates the practice of States and international institutions, and engages in a vigorous debate with scholarship, making the best out of an almost unwinnable situation. Tzanakopoulos’ argument is built in a systematic way, and attempts to reframe norms and principles of relevance to the function of the SC. The author makes a great contribution to the reinvigoration of the debates on the role of the SC in the post-9/11 era, but, still, the analysis has weaknesses undermining the validity of his construction.

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The book’s main argument is that if the SC adopts Chapter VII non-forcible sanctions in breach of international law, two issues arise. First, who is going to authoritatively determine the breach, and second, which will be the legal consequences of the internationally wrongful act of the SC. In the absence of judicial review of the SC actions within the UN system, Tzanakopoulos proposes States as the ‘final arbiters’ of the legality of the SC action with regard to both, determination and enforcement (111). This could be done via auto-interpretation, auto-determination, and self-enforcement of international law by States in the conduct of foreign affairs (Chapters 5 and 6). The author also contends that just as “domestic legal orders provide for a positive right of resistance” (189), civil disobedience is also allowed as result of the lack of a binding third-party settlement in case of doubts on the legality of the resolutions. Thus, countermeasures challenging valid, but illegal, acts of the SC constitute legitimate resistance and civil disobedience (157 et seq.) against the “enormous, vaguely limited, and illcontrolled power” of the SC under Chapter VII (158). There are three lines of critique to this view. First, the author does not take into account the impact of the hegemonic political structure of the international community on the interpretation of international law; second, Tzanakopoulos does not succeed in establishing that the critical response of States and regional organisations to SC resolutions constitutes ‘countermeasures’ in any legal-technical sense; and third, he misconceives the idea of civil disobedience and its relationship with the legal system. States as ‘Final Arbiters’: The idea that States are the ‘final arbiters’ of international legality and can ‘counterbalance’ the authority of the SC is inconsistent with the hegemonic structure of world order. International legal norms can be interpreted in various ways, and it is a legitimate and rewarding academic exercise to propose unconventional interpretive alternatives. Here the question is whether these approaches broadly reflect the basic structure of world order, or whether they are disconnected from it. ‘Hegemony’, as an institution of the international society derived from the inherent factual inequality of States and representing the capacity of Great Powers to lead in political and normative sense, has been legally translated, inter alia, in the composition and powers of the SC. The constitutional authority of the SC can help explain the implications of hegemony on international law. The SC is not merely a world Executive or Legislature in emergencies. The SC defines the content of ‘international order’, and guides accordingly the interpretation of international law. It is the ‘quasi-judicial’ role of the SC and the formation of expectation patterns in the area of international peace and security that help explain its ‘steering role’ in the structural coupling of world order with international law. The SC establishes a system of international responsibility for the destabilisation of order by determining the threat to the peace erga omnes, by addressing regulatory acts to the source of the threat, and by imposing sanctions that have to be complied with by all States. The fundamental step in this process is the determination of the threat to the peace – a legal act impossible to control via judicial review. By determining the threat to, and the measures for the restoration of, the peace, the SC defines the content of world order, and mobilises international law in its support. States cannot usurp this function from the SC, because it is the latter’s constitutional authority to define the binary peace as order versus

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threat as disorder. Other actors may only nudge the SC into broadening the parameters of the definition of ‘order’ and restoration of peace. The ‘Theory of Countermeasures’: It is questionable whether the international response to the action of the SC can be explained by the theory of countermeasures. A central point of the author’s argument is the response of the Organization of African Unity (OAU) to the Libyan sanctions during the 1990s (125 et seq., 162, 187). The threat of disobedience did not fit, however, the structure of countermeasures: though the OAU Resolution of June 1998 argued that the SC resolutions on Libya were illegal (allegedly violating Articles 27 (3), 33, and 36 (3) of the United Nations Charter (UN Charter)), it did not request their retraction, but demanded the selection of a country other than the United States and the United Kingdom for the trials to take place (but still under Scottish jurisdiction). There is nothing that distinguishes this case from the overall pattern of operation of the SC. Indeed, it is standard practice for the SC to adapt its regulatory action to evolving situations without renouncing the determination of the threat. If the Libya resolutions were unlawful, then the determination of the threat to the peace would be unlawful; the whole edifice of the Libyan sanctions should fall, and the OAU should demand that the suspects would not be surrendered to any country. Actually, the sanctions were suspended and then lifted because Libya complied, not because the OAU succeeded in reversing the SC acts by any ‘countermeasures’. There is no discussion in the book on the ‘massive disobedience’ of the OAU to SC Res. 1593/2005 of 31 March 2005 in connection to the referral of the situation in Darfur to the International Criminal Court (ICC). The refusal of the OAU to cooperate with the ICC in the Bashir Case is based on an alleged violation of Article 98 of the ICC Statute on diplomatic immunity, and the OAU decided to take this step after the SC failed to respond to its call for a deferral of the proceedings. This could be a very good case study for the theory of ‘resistance’ to a Chapter VII resolution – but, at the same time, the underlying problem deconstructs the theory altogether: should the suspected war criminals and their regional constituencies be able to dominate the code of world order, and posit themselves as the guardians of legality and peace? The book offers no answer to this uncomfortable question. It is not clear whether Tzanakopoulos considers court judgments as ‘countermeasures’; the author argues that if courts disregard domestic implementation measures this constitutes a violation of Article 25 of the UN Charter – but not necessarily, because it needs the cooperation of the Executive (196). The author knows that this is precisely what does not happen, and tries to avoid the problem by arguing that because such judgments are likely to lead to violations, they are almost countermeasures. The 2009 Abdelrazik Judgment of the Federal Court of Canada, often cited by Tzanakopoulos, is an example of this very equivocal argumentative strategy. Apart from general and sometimes ‘literary’ lines of critique on the SC sanctions, including the unavoidable comparisons with Kafka’s world, the judgement acknowledged that the real problem lay not in the resolutions of the SC, but in the reluctance of Canada to readmit its citizen, though it could have done so without breaching the sanctions. This is also acknowledged by the author (119),

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yet Tzanakopoulos considers the judgment as a threat of disobedience inducing compliance (202), and potentially as a countermeasure (133). The opinion of the UK Supreme Court in the Jabar Ahmed Case ([2010] UKSC 2) elucidates the shortcomings of the countermeasures theory. The author erroneously assumed that the Court had suspended the execution of the judgment (196, note 329); in fact, in a follow-up decision adopted a week later, the Court reconsidered and went further, deciding not to suspend the operation of any part of the order ([2010] UKSC 5, paragraph 8). Even this ‘judicial radicalism’ did not lead to the release of the funds, because other rules and regulations of municipal and EU law applied, with an equivalent effect to those of the Orders quashed. The issue was ultimately settled with the adoption of the Terrorist Asset-Freezing Act of 2010. To put it short, the countermeasures argument is not convincing, because rule of law States (and the EU) follow strategies of collision avoidance. Courts shun judicial review of resolutions, the Executive engages in negotiations with the other members of the SC in view of amending the lists, legislative bodies introduce or adapt legislation in view of preventing incidental violations of the sanctions regime, and the SC amends its procedures to avoid being scrutinised. ‘Countermeasures’, ‘Civil Disobedience’, and ‘Resistance’: Tzanakopoulos tries to establish a relationship between countermeasures, civil disobedience, and resistance, and talks about “disobedience as a countermeasure” (174 et seq.). Terminological misperceptions burden this part of the argument, as well. According to John Rawls (A Theory of Justice, 1971, 364–365), civil disobedience constitutes “a political act contrary to law,” with the purpose “to protest unjust laws” and change them. Tzanakopoulos accepts this, by defining disobedience as a ‘morally justifiable breach’, which is “not […] within the legal framework” (163). Notwithstanding this clear position, the author then concludes that disobedience to SC by States injured by the UN in response to the breaches of international law by the Organisation is justified as a powerful tool for inducing compliance with international law (202). Here is the difficulty: countermeasures are integrated within the legal framework, and are programmed to fulfil the function of enforcement of international law in the absence of a centralised authority. Disobedience is outside the legal framework and operates in view of either changing the law, or, in the form of ‘resistance’, upholding the legal order against systemic threats. Thus, the regularity of countermeasures is incompatible with the exceptionality of disobedience and resistance, and the moral statement of disobedience and resistance is incompatible with the full integration of countermeasures in the legal system. The unlawfulness of countermeasures misleads Tzanakopoulos in believing that they lie outside the legal framework and thus, they constitute disobedience, whilst their illegality has been fully integrated into the regular operation of the international legal system. Despite its shortcomings, the book highlights the real problem of increased risk of normative collisions between the expanding scope of the activities of the SC, and the judiciary of the Member States or of regional organisations. This situation cannot be properly explained by recourse to countermeasures or to normative hierarchies, but rather by the collision between the norm systems of security and rights. The judiciary of liberal States enters into a tense, but

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cooperative, interaction with the SC, in view of nudging the SC to broaden the scope and content of security by integrating human rights in the system of restoration of peace. States can neither challenge the hegemonic authority of the SC in the determination of the threat to the peace, nor can they take over the role of the “guardians of international legality” against the SC. There can be no ‘resistance’ to the SC under international law, but only an evolutionary process of exercising normative influence on the content of the restoration of peace and the lex pacificatoria. The SC can be marginalised either from within by the lack of consensus among the five permanent members, or from without by the massive ‘uncivil disobedience’ of those who systematically violate the fundamental values of world order – but cannot be ‘resisted’ by countermeasures. In this sense, the book, despite the good intentions of the author and his scholarly analysis, fails to reflect on the intricate design of the relationship between world order and international law. ACHILLES SKORDAS Professor of International Law University of Bristol

Helmut Volger/Norman Weiß (eds.): Die Vereinten Nationen vor globalen Herausforderungen – Referate der Potsdamer UNO-Konferenzen 2000–2008. Potsdam Universitätsverlag, Potsdam 2011, 411 pages, ISBN 978-3-86956-139-4. This selection of presentations aims to encourage and inspire political and academic debates about the United Nations (UN) (8).The presented papers stem all, but one, from conferences of the Forschungskreis Vereinte Nationen (Research Group on the United Nations). This research group was founded by the contributing authors to the Encyclopaedia of the United Nations (Lexikon der Vereinten Nationen (2000)), edited by Helmut Volger. The contributors included practitioners from different backgrounds within the social sciences, who wanted to enhance studies on the UN in Germany through a dialogue between the different disciplines of social sciences and politics (7). For this purpose the research group has been organising conferences since 2000 (7). As the work of the research group attracted the attention of the wider research community, the research group decided to publish important papers ordered by topic in one book. The book consists of eleven chapters through which different positions on a common topic are presented. A recurring theme in all chapters is the reform of the UN in its different aspects. Chapter 1 deals with the reform of the UN in general. The first article by Manuel Fröhlich evaluates the reports on the reform of the UN prior to the 60th session of the UN General Assembly. Fröhlich shows how the report “A More Secure World: Our Shared Responsibility” of the High-level Panel on Threats, Challenges and Change and the report of the Secretary-

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General “In Larger Freedom: Towards Development, Security and Human Rights for All” relate to each other in respect of the definition of security and the use of force, as well as institutional reform of the UN. Fröhlich analyses to which extent the outcome of the 2005 World Summit has taken over the ideas of both reports and the reasons for this result. This overview clarifies the position of both reports within different UN documents, international law in general and international politics and therefore provides interesting fruit for thought. The next article by Irene Weinz shows how non-governmental organisations can contribute to the work of the UN and argues that the Cardoso Report has had only limited influence in this regard. The very readable essay on the reform of the principal organs by Sven Gareis explains the legal frame for reforms within the UN and the main events until 2006. Gareis convincingly argues that reform of the UN depends on the Member States’ willingness to cut on their own interests and that ‘muddling through’ (53) will continue to be the leading principle of the work of the UN in the future. Chapter 2 follows with discussions on how the reform of the UN affects its work on the protection of human rights. At first Ekkehard Strauß tells about the challenges the reform poses to the Office of the United Nations High Commissioner on Human Rights. Then Hanna Beate Schöpp-Schilling discusses suggestions to reform the human rights treaty body system from the perspective of the Committee on the Elimination of Discrimination against Women. The last paper in this chapter examines the reform of the human rights system of the UN in broader perspective. In this entry Marcus G. Schmidt covers the genesis and the first two sessions of the Human Rights Council as well as the reform of the treaty body system. In this chapter the editors reach their aim by providing insight into the work of the UN from different perspectives. Even though each paper has a unique focus, all three of them provide the reader with different views on how the reform of the treaty bodies is perceived. Chapter 3 is entitled “United Nations and Public International Law.” Frank Hoffmeister shows how the jurisprudence of the International Criminal Tribunal for the former Yugoslavia has affected international criminal law and international criminal procedure. In the other entry of this section, Bardo Fassbender illustrates the limits of public international law in the Security Council as well as the power of the Security Council to influence public international law. Under the presentation “The United Nations and International Terrorism,” the author argues that the Security Council can play only a minor role in the combat against terrorism because of the unilateral policy of the United States (US) (112). Fassbender postulates that via Security Council Resolutions 1368 and 1473, the Security Council had accepted the US argument of self-defence against the attacks of 11 September 2001. The argument put forward is that in doing so the Security Council implicitly allowed the US to determine unilaterally in what way or manner, and for how long, to respond to the attacks; thus giving the US more freedom than that accorded to States under Article 51 United Nations Charter (115 et seq.). Furthermore, Fassbender proposes that the Security Council could play a more fundamental role in the combat against terrorism if it engages in norm setting and thereby directs State actions (119). In chapter 4 three articles discuss the “United Nations and Globalisation.” Christian Tietje defines globalisation and analyses whether the legal order of the World Trade Organization (WTO) allows States to deal with global problems like environmental degradation. In the last

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entry in this section Brigitte I. Hamm examines whether the UN Global Compact contributes to the protection of human rights. Christoph Rohloff adds an article on global governance and international peace and security. While Tietje and Hamm critically assess whether the WTO and the UN are able to deal with certain effects of globalisation, Rohloff only briefly touches the UN in the analysis of the political world order after the end of the Cold War. Chapter 5 deals with “Peacekeeping through the UN.” Ekkehard Griep offers an analysis of the roles of the UN and the North Atlantic Treaty Organization in international peacekeeping. Hans-Joachim Vergau shows the difficulties of the ‘contact group’ consisting of Canada, France, Germany, United Kingdom and the US to reach a diplomatic solution to the presence of South Africa in Namibia. Vergau delivers an insight into the diplomatic efforts to develop a plan on how to end the conflict and how to protect and promote this plan from 1977 until 1989 in the Cold War environment. Winrich Kühne, Wibke Hansen and Julia Hett discusses issues concerning the practicalities of peacekeeping. They examine the roles of civilian personnel in peacekeeping missions and electoral observation, and the role of the German Centre for International Peacekeeping Missions (Zentrum für Internationale Friedenseinsätze) in the selection and training processes for such missions. The last two entries of the chapter deal with more traditional aspects of peacekeeping, namely humanitarian intervention and new developments of peacekeeping missions of the UN. The articles under chapter 6 deal with different aspects on recent developments in the development cooperation in general and specifically in the UN development cooperation system. Development cooperation both within and outside the UN has been subject to criticism and therefore tries to improve results through a new holistic approach towards development assistance and measures like management reforms within development assistance institutions to deliver more effectively, enhanced cooperation between development institutions and the private sector and efforts to improve ownership of the receiving countries. In the last two entries, Markus Lederer and Andreas Obser on the one hand and Thomas Fues on the other, evaluate recent reforms within the UN against this background. In this way the whole chapter presents different views on similar problems of development cooperation. “United Nations and Environmental Protection” is dealt with under chapter 7. This section consists of two entries: Peter H. Sand evaluates an idea of the Scientific advisory to the German Federal Government on Global Changes of the Environment (Wissenschaftlicher Beirat der Bundesregierung für Globale Umweltveränderungen) to charge for the use of global commons as one of the few substantial contributions on the distribution problems faced by international environmental law (281). In contrast to that Steffen Bauer examines the role and reform of the UN Environment Programme and adds to the debate on the institutional aspects of international environmental law. Chapter 8 considers the “United Nations and Public Opinion” (Die Vereinten Nationen und die öffentliche Meinung) via two articles: the first written by a journalist reflects on the relationship between the UN and media, and the other covers the new structure of the UN regional information centres in Europe. Both articles critically assess from the outside and within the UN that the organisation needs to better explain its work.

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Three articles deal with German UN Policy under Chapter 9. Wolfgang Ehrhardt, a German politician comments on a motion by all but on parties in the German Federal Parliament in the 14th legislative period and demands especially that the German financial support to the UN must reflect the political expectations of the German government towards the UN. Klaus Hüfner evaluates in the remaining two articles the reciprocity between research on the UN and analyses structural deficits of German UN policy. Under the heading “The European Union and the United Nations,” chapter 10 offers two articles on the Common Foreign and Security Policy within the UN. The first article analyses whether Member States of the European Union (EU) act commonly in the United Nations, in the second article a legal practitioner discusses how the Member States of the EU could contribute to the reform of the Security Council. Both articles add intriguing views to the debate on the external relations of the EU. Therefore it is regrettable that both papers stem from the year 2002 as efforts to coordinate the different national interests of the 27 Member States could have been considered. Additionally it would have been interesting to know how the new position of the High Representative of the EU for Foreign Affairs and Security Policy now influences the internal coordination among the Member States according to Article 34 (1) of the Treaty on European Union (TEU) at a practical level. From an EU perspective, the Treaty of Lisbon has changed the external relations of the EU: the EU as the successor to the European Community is now an international organisation and enjoys legal personality (Articles 1 and 47 of the TEU). Furthermore since UN General Assembly Resolution 65/276 of 3 May 2011 the EU has an improved observer position within the UN and enjoys amongst others the right to speak at General Assembly debates. Thus some former practical problems are now resolved. The debate on these improvements already started in August 2010 with a first draft resolution issued by Belgium. Some practical insight into how the EU was perceived within the UN during this development would have added a lot to the ongoing research on external relations of the EU. The last chapter deals with research on the UN in Germany. The editors of the book argue in three articles that a more structured research with contribution from several social sciences and reverberation in politics would be necessary. Helmut Volger and Norman Weiß collected an interesting series of articles on many topics regarding the United Nations. The assembly of articles from lawyers, political scientists and people working with the UN provides insight and a very useful tool to encourage further studies on the UN and to improve collaboration between the different areas of work. However, in order to deliver what is promised by the title of the book – the global challenges to the UN – it might have also been useful to add a general comment on how the UN is dealing with the challenges shown by the different entries in the eyes of the editors. One might ask further whether it would not have been helpful if the editors would have drawn the separate entries together more closely by adding some comments on articles with similar topics. For example the reader of the entry by Hamm on the UN Global Compact is not made aware of the fact that another entry by Lederer and Obser evaluates the Global Compact as a successful instrument of the new policy of the UN (254 et seq.). Additionally it would have been helpful if the list of authors would have included their affiliations at the time of the presentation so that the reader could more easily evaluate from which perspective they were speaking. Finally, the

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articles date only from 2000 until 2006 and thus some of the questions are already outpaced by recent developments. However, this collection still gives an interesting overview of the different aspects of the reform going on within the UN and how this reform influences the work of this most important international organisation. KATRIN KOHOUTEK Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel

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. Eyal Benvenisti: The International Law of Occupation (2nd ed.). Oxford University Press, Oxford 2012, 383 pages. Neil Boister: An Introduction to Transnational Criminal Law. Oxford University Press, Oxford 2012, 301 pages. William H. Boothby: The Law of Targeting. Oxford University Press, Oxford 2012, 603 pages. Tillmann Rudolf Braun: Ausprägung Der Globalisierung: Der Investor als partielles Subjekt im Internationalen Investitionsrecht, Nomos, Baden-Baden 2012, 354 pages. Antonio Cassese (ed.): Realizing Utopia: The Future of International Law. Oxford University Press, Oxford 2012, 700 pages. Andrew Clapham: Brierly’s Law Of Nations (7th ed.). Oxford University Press, Oxford 2012, 518 pages. Thomas Cottier/John H. Jackson/Rosa M. Lastra (eds.): International Law in Financial Regulation and Monetary Affairs, Oxford University Press, Oxford 2012, 455 pages. Kevin E Davis et al. (eds.): Governance by Indicators: Global Power through Quantification and Rankings. Oxford University Press, Oxford 2012, 491 pages. Yoram Dinstein: The Defence of ‘Obedience to Superior Orders’ in International Law. Oxford University Press, Oxford 2012, 267 pages.

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Mark A. Drumbl: Reimagining Child Soldiers in International Law and Policy, Oxford University Press, Oxford 2012, 239 pages. Bardo Fassbender/Anne Peters (eds.): The Oxford Handbook of the History of International Law. Oxford University Press, Oxford 2012, 1228 pages. Claire Finklelstein et al. (eds.): Targeted Killings: Law and Morality in an Asymmetrical World. Oxford University Press, Oxford 2012, 496 pages. Eckart Förster/Yitzhak Y. Melamed (ed.): Spinoza and German Idealism. Cambridge University Press, Cambridge 2012, 285 pages. Joachim Gardemann/Franz-Josef Jakobi/Bernadette Spinnen (eds.): Humanitäre Hilfe und staatliche Souveränität. Aschendorff Verlag, Münster 2012, 269 pages. Till Gut: Counsel Misconduct before the International Criminal Court. Hart, Oxford 2012, 354 pages. Duncan B. Hollis (ed.): The Oxford Guide to Treaties. Oxford University Press, Oxford 2012, 804 pages. Ida Lintel/Antoine Buyse/Brianne McGonigle Leyh (eds.): Defending Human Rights: Tools for Social Justice. Intersentia, Cambridge 2012, 172 pages. Hendrik J. Lubbe: Successive and Additional Measures to the TRC Amnesty Scheme in South Africa: Prosecutions and Presidential Pardons. Intersentia, Cambridge 2012, 236 pages. Petros C. Mavroidis: Trade in Goods: The GATT and the Other Agreements Regulating Trade in Goods (2nd ed.). Oxford University Press, Oxford 2012, 899 pages. Jane McAdam: Climate Change, Forced Migration, and International Law. Oxford University Press, Oxford 2012, 319 pages. David McClean: International Co-Operation in Civil and Criminal Matters (3rd ed.). Oxford University Press, Oxford 2012, 366 pages. Jacqueline Mowbray: Linguistic Justice: International Law and Language Policy. Oxford University Press, Oxford 2012, 227 pages.

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Hana van Ooijen: Religious Symbols in Public Functions: Unveiling State Neutrality. Intersentia, Cambridge 2012, 337 pages. Anne Peters/Lukas Handschin (eds.): Conflict Of Interest in Global, Public and Corporate Governance. Cambridge University Press, Cambridge 2012, 470 pages. Luc Reydams/Jan Wouters/Cedric Ryngaert (eds.): International Prosecutors. Oxford University Press, Oxford 2012, 968 pages. Sonia E. Rolland: Development at the World Trade Organization. Oxford University Press, Oxford 2012, 361 pages. Christopher Safferling: International Criminal Procedure. Oxford University Press, Oxford 2012, 602 pages. Ana María Salinas de Frías/Katja L.H. Samuel/Nigel D. White (eds.): Counter-Terrorism: International Law and Practice. Oxford University Press, Oxford 2012, 1156 pages. Mohamed Shahabuddeen: International Criminal Justice at the Yugoslav Tribunal. Oxford University Press, Oxford 2012, 247 pages. Sandesh Sivakumaran: The Law of Non-International Armed Conflict. Oxford University Press, Oxford 2012, 657 pages. Elies van Sliedregt: Individual Criminal Responsibility in International Law. Oxford University Press, Oxford 2012, 337 pages. Christian J. Tams/Christian Tietje (eds.): Documents in International Economic Law: Trade, Investment and Finance. Oxford University Press, Oxford 2012, 745 pages. Frans Viljoen: International Human Rights Law in Africa (2nd ed.). Oxford University Press, Oxford 2012, 622 pages. Elizabeth Wilmshurst (ed.): International Law and the Classification of Conflicts. Oxford University Press, Oxford 2012, 531 pages.