German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 57 (2014) [1 ed.] 9783428547968, 9783428147960

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VOLUME 57 · 2014

DUNCK ER & HUMBLO T · BERLIN

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 57 · 2014

LIST OF PEER REVIEWERS KAI AMBOS • University of Göttingen GINA BEKKER • University of Ulster MARTEN BREUER • University of Konstanz JEAN D’ASPREMONT • University of Manchester, University of Amsterdam ANDREA GATTINI • University of Padua THOMAS GIEGERICH • Saarland University STEVEN GREER • University of Bristol PETER HILPOLD • University of Innsbruck JAN KLABBERS • University of Helsinki

KARIN OELLERS-FRAHM • Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg HÉCTOR OLÁSOLO • University of Rosario ANNE PETERS • Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg STEFANIE SCHMAHL • University of Würzburg STEFAN TALMON • University of Bonn FRANS VILJOEN • University of Pretoria

JOHN MERRILLS • University of Sheffield

ERICH VRANES • Vienna University of Economics and Business

MATH NOORTMANN • Coventry University

THOMAS WEIGEND • University of Cologne

ROGER O’KEEFE • University of Cambridge

GUIDO WESTKAMP • Queen Mary University of London

MARCO ODELLO • Aberystwyth University

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 57 · 2014

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: ANDREAS VON ARNAULD / NELE MATZ-LÜCK / KERSTIN ODENDAHL Honorary Editor: JOST DELBRÜCK Assistant Editors: AVRIL RUSHE / WIEBKE STAFF Editorial Assistants: SASKIA HOFFMANN / BENJAMIN JÜDES / CELIA RENZ Layout and Production: ANDREA NEISIUS / SYLVIA WEIDENHÖFER

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-DEBBAS Graduate Institute of International Law, Geneva RAINER HOFMANN University of Frankfurt FRED L. MORRISON University of Minnesota

EIBE H. RIEDEL Geneva Academy of International Humanitarian Law and Human Rights ALLAN ROSAS Court of Justice of the European Union, Luxemburg BRUNO SIMMA Iran-United States Claims Tribunal, The Hague DANIEL THÜRER University of Zürich CHRISTIAN TOMUSCHAT Humboldt University of Berlin RÜDIGER WOLFRUM Max Planck Foundation for International Peace and the Rule of 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 reviewers. Walther Schücking Institute for International Law, University of Kiel Westring 400, D-24098 Kiel, Germany 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. © 2015 Duncker & Humblot GmbH, Berlin Printed by BGZ Druckzentrum GmbH, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-14796-0 (Print) ISBN 978-3-428-54796-8 (E-Book) ISBN 978-3-428-84796-9 (Print & E-Book)

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Printed on non-aging resistant (non-acid) paper according to ISO 9706 ∞ Internet: http://www.duncker-humblot.de

TABLE OF CONTENTS FORUM 1914–2014 NIEMEYER’S INTERNATIONAL LAW REVISITED ANDREAS VON ARNAULD: Reflections upon Reflections: Koskenniemi on Niemeyer

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THEODOR NIEMEYER: Tasks of the Future Science of Public International Law . . . . .

13

MARTTI KOSKENNIEMI: International Law as ‘Science’ – Reflections on a Mandarin Essay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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FOCUS LAW OF THE SEA IN THE 21ST CENTURY NELE MATZ-LÜCK: The Law of the Sea as a Research Focus in Kiel: Looking Back and Moving Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37

SHUNJI YANAI: Can the UNCLOS Address Challenges of the 21st Century? . . . . . . .

43

BING BING JIA: The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges . . . . . . . . .

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RÜDIGER WOLFRUM: Evolution of the Law of the Sea from an Institutional Perspective

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LIESBETH LIJNZAAD: Formal and Informal Processes in the Contemporary Law of the Sea at the United Nations, a Practitioner’s View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 YOSHIFUMI TANAKA: The Institutional Application of the Law of Dédoublement Fonctionnel in Marine Environmental Protection: A Critical Assessment of Regional Regimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 TULLIO SCOVAZZI: The Exploitation of Resources of the Deep Seabed and the Protection of the Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

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DORIS KÖNIG: Maritime Security: Cooperative Means to Address New Challenges . .

209

ALEXANDER PROELSS: Dispute Settlement in Multi-Layered Constellations: International Law and the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 ISABEL FEICHTNER: Power and Purpose of Ecolabelling: An Examination Based on the WTO Disputes Tuna II and COOL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

255

GENERAL ARTICLES DIEGO GERMÁN MEJÍA-LEMOS: On Self-Reflectivity, Performativity, and Conditions for Existence of Sources of Law in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 TOBIAS THIENEL: Third States and the Jurisdiction of the International Court of Justice: The Monetary Gold Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 MART SUSI: Implied Constitutional Competence of the European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

353

PAUL GRAGL: The Silence of the Treaties: General International Law and the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 ISABEL DAUM: Legal Conflicts in the Protection of Traditional Knowledge and Intellectual Property in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411 KEVIN GRIMMEIß: International Criminal Tribunals and the Right to a Lawful Judge 443 THIAGO BRAZ JARDIM OLIVEIRA: State Immunity and Criminal Proceedings: Why Foreign Officials Cannot Enjoy Immunity Ratione Materiae from the Legal Process of Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 SINTHIOU BUSZEWSKI AND HENNER GÖTT: Avoiding Kadi – ‘Pre-emptive Compliance’ with Human Rights when Imposing Targeted Sanctions . . . . . . . . . . . . . . . . . . . 507 ANJA KIEßLING: The Uncertain Fate of the African Court on Human and Peoples’ Rights: The Problematic Merger with the African Court of Justice and the Establishment of an International Criminal Law Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541

TABLE OF CONTENTS

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STEFAN TALMON: At last! Germany Admits Illegality of the Kosovo Intervention . . .

581

GERMAN PRACTICE

CHRISTOPH BEINLICH AND BENJAMIN JÜDES: Germany’s Role in the Destruction of Syrian Chemical Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 PHILIPP STÖCKLE: Recent Developments in German Case Law on Compensation for Violations of International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 ARNE REIßMANN AND SARAH BOTHE: Ending Impunity for the Bottommost Diplomatic Caste: German Practice in Relation to Domestic Workers in Diplomatic Households . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 633 MARTIN WEILER: The Right to Privacy in the Digital Age: The Commitment to Human Rights Online . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 651 SINA HARTWIGSEN AND JASMIN OSCHKINAT: The Convention for the Safeguarding of the Intangible Cultural Heritage and Its Relevance for Germany . . . . . . . . . . . . . . 667 SARAH GAHLEN: Watercourses: The UN Convention and Germany’s International Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683 BERENIKE SCHRIEWER: The German Federal Constitutional Court’s First Reference for a Preliminary Ruling to the European Court of Justice . . . . . . . . . . . . . . . . . . . . . . . 701

BOOK REVIEWS

Alessandro Chechi: The Settlement of International Cultural Heritage Disputes (WELLER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Andrew Clapham/Paola Gaeta (eds.): The Oxford Handbook of International Law in Armed Conflict (IPSEN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725 Oliver Dörr/Rainer Grote/Thilo Marauhn (eds.): EMRK/GG: Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (JOHANN) . . . . . . . . . . . . . . . . 729 Hazel Fox CMG QC/Philippa Webb: The Law of State Immunity (WITTICH) . . . . . .

732

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Dirk Pulkowski: The Law and Politics of International Regime Conflict (BERMAN) . .

734

Ben Saul/David Kinley/Jacqueline Mowbray (eds.): The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (WEIß) . . . 737 Dinah Shelton (ed.): The Oxford Handbook of International Human Rights Law (KLEIN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738 Hugh Thirlway: The Sources of International Law (D’ASPREMONT) . . . . . . . . . . . . . . . .

741

Christian Walter/Antje von Ungern-Sternberg/Kavus Abushov (eds.): Self-Determination and Secession in International Law (BUSZEWSKI) . . . . . . . . . . . . . . . . . . . . . . . . . . 747 Sharon Weill: The Role of National Courts in Applying International Humanitarian Law (KRIEGER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752

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

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FORUM 1914–2014 NIEMEYER’S INTERNATIONAL LAW REVISITED

Reflections upon Reflections: Koskenniemi on Niemeyer ANDREAS VON ARNAULD(

In 2014, the Walther Schücking Institute for International Law in Kiel celebrated its 100th anniversary. Founded on the initiative of Theodor Niemeyer (1857–1939) as the first university institute of its kind – not only in Europe –, the Institute quickly established Kiel as a recognised centre for international law in Germany. In particular Niemeyer’s successor, Walther Schücking (1875–1935, Director from 1926 to his dismissal for political reasons in 1933) raised the Institute to international renown. Indeed Jean Spiropoulos, Paul Guggenheim, Walter Schätzel, Curt Rühland, Fritz Münch, and Victor Böhmert were working at the Institute during these years. After the National Socialist period – during which it was briefly renamed and restructured as “Institute for Politics and International Law” under the ardent National Socialist, Paul Ritterbusch – it was Hermann von Mangoldt (1895–1953) who actively undertook rebuilding the Institute from the desolate state it had reached at the end of World War II. It was he who, together with Rudolf von Laun (of Hamburg University) founded in 1948 the “German Yearbook of International Law” (then still under its German title as “Jahrbuch für Internationales Recht”). Succeeding (Co-)Directors of the Institute were Eberhard Menzel (Director 1955–1975), Victor Böhmert (1955– 1971), Wilhelm Kewenig (1971–1981), Jost Delbrück (1976–2001), Rüdiger Wolfrum (1982–1993), Rainer Hofmann (1997–2004), Andreas Zimmermann (2001–2009), Thomas Giegerich (2006–2012), and Alexander Proelss (2007–2010). Especially Eberhard Menzel and Jost Delbrück in their long-lived tenures were influential in building the reputation of the Kiel Institute which bears the name of Walther Schücking since 1995. (

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

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To mark the occasion of the Institute’s anniversary, the GYIL editors decided to devote the Forum Section not – as usual – to a current controversial issue of international law, but to a text written by Theodor Niemeyer in 1917, while World War I was still being fiercely fought in Europe. Niemeyer was probably most influential in his day as an initiator and organiser: Besides founding the Kiel Institute, he was a key figure in the establishment of the German Society of International Law and the German branch of the International Law Association (and, by the way, in the formation of Kiel’s Philharmonic Orchestra). However, as a convert to the cause – he started out as a professor of Roman Law and turned to international law only after 1900 –, Niemeyer also published a series of “confessional” texts. In these he elaborated on his ideas of the role of international law and international legal scholarship. The most comprehensive of these texts is “Aufgaben künftiger Völkerrechtswissenschaft” (“Tasks of the Future Science of Public International Law”), published by Duncker & Humblot in 1917. In this work – which is presented in excerpts in an English translation here – Niemeyer displays a peculiar blend of pragmatism and idealism. His professed belief in the ‘idea of law’ (Rechtsgedanke) unfolding itself in an irresistible drive to ever more intensified cooperation between States might not be without an occasional Hegelian touch; still, it is not the work of a visionary or a philosopher. Niemeyer’s text, however, is worth reviving as a period piece, providing us with a view on German international legal scholarship at the twilight of that ‘long 19th Century.’ Though denouncing legal positivism and supporting the idea of ‘speaking law to power,’ Niemeyer is far from being a utopian. This in a way marks him at the same time a typical and an atypical exponent of German legal scholarship at the dawn of the 20th century. The editors are fortunate that Martti Koskenniemi agreed to comment on Niemeyer’s 1917 text. In his essay, Koskenniemi puts Niemeyer’s thoughts in perspective and compares them (not always favourably, it has to be admitted) with Max Weber as the epithet of German scholarship around 1910. We are confident that our readers will enjoy some intriguing insights into these reflections upon reflections.

Tasks of the Future Science of Public International Law THEODOR NIEMEYER(

§ 1: Yardsticks of Legal Science I. The old question ‘does public international law exist’ will not be discussed here. The new question arising from the Great War ‘does public international law still exist’ will not be dealt with either. It will be accepted here as settled that there is no serious doubt that the answer to both questions is ‘yes.’ Public international law exists not only as a concept, but also in the sense of positive validity. Even the Great War has been unable to wear away at the concept of public international law, nor has it effected the collapse of public international law in spite of thousands of violations. However, not everyone who shares this viewpoint will be readily prepared to affirm the question ‘does the science of public international law exist?’ The question is naturally not posed in such a way as to pass a judgement of value about the accomplishments of public international legal science up until now. Rather the question is directed at the concept and idea of public international legal science, or in other words, whether it is even possible. A short understanding of particular fundamental presuppositions of this question is essential here. In order to know whether the science of public international law exists in the identified way, we have to envisage on the one hand the essence of science and on the ( Originally published as “Aufgaben künftiger Völkerrechtswissenschaft” in 1917. Translation by Nicholas English (all footnotes omitted).

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other the existence of everyday phenomena which come into consideration as an object of the science of public international law. II. The concept of ‘science’ in this context may not be evaluated either from philosophical standard or purely linguistic perspectives. It does not involve a determination of the inherent ‘formal’ nature of science, and it also does not involve a linguistic investigation. Rather it must be determined in a solely realistic and solely objective way, in a way that is commonly known as ‘purely practical,’ the meaning of which is sensibly attached to the concept of science. Science in this sense is the expression for research work which has the conscious intended purpose of serving human progress through the attainment of knowledge and understanding. This intended purpose of common progress is most important here. The suggestion that someone who is researching merely for his own personal need is undertaking science must be rejected. Academic studies and research are distinct. Not every effort aimed towards knowledge is science. A person who observes ants, invents, makes physical discoveries, studies peoples and countries, or searches through documents merely from the perspective of personal inquisitiveness, is working on his education, but not towards ‘science.’ A person who buries or keeps to himself the accomplishments of his research can be a great scholar and a brilliant researcher. But he is no guardian of science. His works could later be discovered and elevated to the level of scientific research. However, that is simply a subsequent awakening for science. Science is social and purpose-oriented, according to its methods and aims. The intended purpose of common progress leads to on the one hand scientific research’s reliance on the work of the past, and contact with the scientific community on the other, being criteria for scientific work. A lack of knowledge or neglect of all work already completed is unscientific, because it ignores the aim of common possession. Intellectual closure to the scientific community is unscientific because it contravenes the social contracts of the division of labour and working tools. III. Application of the above-described perspective to public international law does not present any particular difficulty. The necessity of this perspective is generally recognised in the area of public international law research. It is being theoretically emphasised here only because it has to be highlighted that for questions of if and how of public international legal science, as with every other science, the intended purpose of collectiveness is decisive.

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It is hardly necessary to mention that the particular relationship of public international law to the organisation of the international community is not meant here. This relationship will be discussed later. For these purposes it refers only to communal science and within this communality public international legal science’s intrinsic intended purpose towards knowledge and understanding of the scientific community. Tangible practical progress in the direction of the international organisation of States can result from the advancement of this knowledge, which as such already includes an increase of common knowledge. These developments do not pursue the initially sought goal of science; science has rather to keep its eye on the possibility of recognising that certain aims generally held as being desirable or necessary were mistaken. This is an instant that differentiates science from practical politics – in particular from pacifism, which is a political movement and not a branch of science. This is true also of the so-called scientific pacifism. […] V. With the last observations we have touched upon a question of boundaries that is of concern to almost all areas of science, namely the relationship between scientific methodology and science itself. Scientific methodology can be described as the external means of scientific operation generally made available. I would ascribe under this category terminology, systematic, and dogmatics of scientific disciplines every bit as much as machines and other mechanical tools are to the natural sciences. I do not see any functional reason for eliminating such scientific methodology from the concept of science. I do, however, consider it necessary to always stay conscious of whether the particular case involves a technical scientific tool or science as the ultimate aimed-for purpose. Private law conceptual jurisprudence has often misunderstood this differentiation. For public international legal science, this aspect is particularly important. It cannot commit any more grievous mistake than being dragged on the coat-tails of any legal methodology. […]

§ 3: The Intended Purpose of the Science of Public International Law I. Science is research for a common purpose.

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The call for pure, purposeless (i.e. free from purpose) science is an expression whose origin lies in the need to accent the self-evident stipulation that matters that are quite different from scientific research do not fall under the guise of ‘science.’ That the name of the science of public international law must not serve as a flagship for the pursuit of personal ends; as a mask for the disingenuous representation of political interests; or to gloss over inertia, cowardice, self-interest, hunger for power, or defamation, should be so self-evident that one should not have to mention it. One would indeed not have to discuss this if the relationship of the science of public international law with the foreign policies of individual States and the diplomatic principle of diverse morality for individuals and States did not bring unique difficulties with it. For exponents of the science of public international law, conflicts of duties do arise. This, rawly expressed, tapers towards the question: Is the public international law academic allowed to publically disagree with his State? Is he allowed to, or indeed does he have to be an advocate of his State? The public international lawyer who consciously agrees with his State contrary to his own personal conviction in order to serve the political interests of that State is lying and desecrating the idea of law as well as the dignity of science. Moreover, he damages the well-understood interests of his State more highly than he could serve them in this moment. On the other hand, he who accuses a public international lawyer of the offence of the above-mentioned obfuscation of public international law denies him his professional integrity and the moral worth of the ‘priesthood’ of science. A frivolous and unjust accusation warrants the same severe condemnation as the crime itself. Both cases comprise sins against the holy spirit of science. There is a diplomacy which draws from the acknowledgment of these facts the conclusion that the science of public international law and its upright exponents are unserviceable or indeed harmful towards the functioning of international politics. There have been governments that have therefore avoided letting experts in public international law come to practical eminence; seeking their help in the functioning of foreign policy; or even granting them any influence over these functions. Reproach against these governments is not appropriate in all circumstances, given the diplomatic embarrassment that can arise from the diverging morality that can be derived from practice and doctrine. The occasion that most warrants accusation in this

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relationship is the respective state of national foreign policies, which are accustomed to using public international law as an occasional resource, but not as the basis of their behaviour. It is clear that those governments that do not from the outset generally take public international law as guiding principles for their policies have no interest in letting the science of public international law reach a level where its paramount importance could hinder diplomacy. To draw from this the conclusion that the science of public international law ‘must be nationally politicised,’ in the sense that it has to serve national policy in a subordinate and obedient manner, is a conception that must necessarily fail in its baseness and impracticability. Governments will not then first have to seek aid of the science of public international law to justify actions, but will rather preside over diplomatic duties in regular contact with the science of public international law as the conscience of the State. Otherwise, after failures happen that it was not in their power to prevent, but that would have been an academic sacrilege to justify, nothing would remain for national science to do other than to shroud itself in grief. The formulation of science free from overarching interests self-evidently has legitimacy in the rebuttal of the dishonest representation of interests, even where the interests are not of the individual, but also of whole organisations, should these have the name of political party, alliance, nation, or State. II. As certainly as the science of public international law has to frown upon the dishonest representation of interests, so must it raise the honest and appropriate pursuit of those purposes to its supreme principle to be reflected in the object of its research. These purposes can be summarised thusly: study of the conditions for the emergence of relations between States and nations that reflect the idea of law. This practical purpose of the science of public international law forbids utopian treatment of the subject matter in every degree: both in the form of anarchy of any type that denies States and law any future (including the substitution of the legal order with the love of man), as well as in the form of the line of thought that supports dissolution of States in favour of a world State. In contrast to this, any practical possibility of a communitisation of States and nations in accordance with fundamental principles of the legal order that has its origins

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in reality and acknowledges the prerequisite of the existence of a majority consensus of States, can form part of the science of public international law. This whole range of possibilities must remain open as an object of public international legal research in its full expansion and must be protected from premature, prejudicial dismissal. The extremes of on the one hand purely unilateral State control of international relations, and on the other an international organisation of the entire world State community that envisions the supra-nationalisation of public international law, must be acknowledged as conceptually possible forms of international legal order that can and indeed should be scientifically examined. III. The practical purposes of the science of public international law also call for the expansion of areas of research in another direction – to a broad range of possibilities. Sociological outlooks that are underpinning recent developments in legal science have, for example in relation to criminal law, led to an emphasis on the general context of social life and through this to the modern methods of criminal policy. These methods must also be elevated to decisive importance in the science of public international law. We must practise ‘politics of international law’ as a science. In other branches of legal science it has become more and more recognised that legal methodology (which also includes dogmatics) is only a means to an end, and that the social ideal aim of the legal order can only partially be achieved by means of legislation and legal methodology, while some important functions are better resolved outside of the sphere of law. In other areas of law, determining the boundaries and establishing the correct understanding between legal policy and ethics, State activity and philanthropy, is increasingly becoming a recognised function of extended legal science. A corresponding function should also be addressed in the science of public international law. We must also scientifically assess the social borderlands of public international law. State history, politics, economy, and peoples’ morality are as inseparable from public international law as administrative theory, national economy, and constitutional politics are from constitutional law; psychology, social studies, and public welfare from criminal law; and commerce, banking, industry, shipping, and agriculture from private law.

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Public international law is a means to an end, namely welfare in the relationship of States and nations, exactly as national law is a means to the same end within a State. […] V. Arising from the above remarks: The relationship of public international law and national law must not be seen in a technical/dogmatic restriction, but envisioning the morality of nations, Völkerpsychologie, and the whole social dynamic. One can describe the extension of this framework through the antithesis of ‘Nationalism and Internationalism.’ That the fundamental questions of foreign policy are included in this expansion of the areas of enquiry hardly needs to be mentioned and is the most crucial point of the conclusion. The extension seizes upon both functions of examination: the facts and their order within the politics of public international law. From both perspectives one has to examine the relationship of nationalism and internationalism. […] An international legal community, and with it positively effective public international law, has only been established in the last few decades. The practical legal community has stepped into the place of futile attempts by the 18th and 19th century dynasties of Europe in order to realise the concept of European equilibrium. This principle, which resulted merely in an artificial equalisation of States jostling for power, was jettisoned during the 19th century through the nationally and constitutionally based maxim that the decisive rule for international politics is the enforcement of vital national interests. From this honest, strong, and ruthless truth, the perforce realisation of collective cultural interests and cultural functions of States and the modern bond of States developed into a positive legal community. The egotistical, aspirational nation State has proven itself to be not an obstacle, but indeed the only reasonable foundation for positive public international law. The need for a dependably organised international association as safe as possible against disorder, even in war time, is so stark, so obvious, that it runs roughshod over all obstacles like a natural law and forces the States together by sheer force of reason. And the convincing and attractive power of this principle is taking more and more

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effect. International postal traffic is the example par excellence. In the areas of telegraphy and railway transport, significant developments have been implemented or initiated. The law of sea lanes as well as the promotion of the protection of buoyage are both headed in the same direction. Shipping on the great international rivers and the Suez Canal are conventionally governed. This is connected with conventions to combat the danger of epidemics as well as phylloxera. In the North Sea there is a Fisheries Police as well as a ‘Schankpolizei’ to combat floating taverns. International hunting protection exists in Inner Africa as well as the North Sea and in the Bering Strait aimed at the protection of seals. International protection of birds has recently been achieved. Sugar production and trade are internationally monitored; the slave trade and sex trafficking are fought by international organisations. Geodesy and deep sea research are cared for internationally, and intellectual property of compositions and inventions is under ever improving international protection, though this is not yet completely satisfactory. For the last fifteen years the Western States have at last assiduously and progressively strived to eliminate legal uncertainties that arise due to the patchwork of laws throughout the globe, by codifying private international law and procedural law in conventions. In comparison to this development which compares with growth on a spring night, it hardly warrants mentioning that the beginnings of these phenomena are of older origin. In this regard it is worth referring to the treatment of international rivers such as the Rhine and the Danube. Although the principle of international freedom of navigation has been proclaimed in the Peace of Westphalia and ever since, particularly emphatically in the Final Act of the Congress of Vienna, satisfactory implementation of the principle first came about in the first half of the 19th century. I repeat: only transport and legal unions of the last generation have brought indisputable and inherent content to public international law. The organisation of international peaceful cultural life thereby created has made public international law a positive and equal part of the whole social order of life, to which the modern interpretation of law as a manifestation of culture (Kohler) applies. The old interpretation of public international law as being supernatant over the States – a more or less hazy postulation coming from a higher world – is dismissed by these newest developments. New public international law is earthly-born and positive. Its source is State consensus. The modern increase of the national view of the

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State and the politics of interest that flow from this has pushed the States towards international integration. The fundamental problem of public international law, and with it all other individual problems, can be distilled into a single question: how far does international integration correspond to national interests? Following this method and no other, it is possible to resolve undetermined questions of the international law of war which are on the programme of the second peace conference. Politics of international law are still only interest politics. But of course State interests need to be appreciated far-sightedly. In this regard it is important to mention that in the area of the law of war it is today generally in the interest of States to minimise arbitrary war, to protect neutral parties, and to universally create fixed rules that belligerents and non-belligerents can adhere to, above all else neutral trade. Weltverkehrsrecht,1 the substantial and strong child of our time, will also realise its compulsory power in alleviating the horrors of war. The idea of the international community with mutual interests and culture, which fulfils and inspires the Weltverkehrsrecht, will no longer have to be dealt with as utopian in the future. To support these ideas is now no longer seen as a sign of national weakness, but the signature of a vision that commands the times. The State that observes the signs of the times and, with full national power, best understands consolidation of the progressive development of public international law with the most decisive protection of national interests, will be the strongest in war and peace, and will march in the vanguard of civilisation. […] IV. In reality, the gaping precipice between nationalists and internationalists is not so wide that a bridge between them would be impossible. I will repeat what I wrote in 1910: “The point at which the bridge must be positioned is in the moment of national egotism. Internationalism, properly understood, does not demand anything from a State that is not in accordance with its national egotism. Law of international rela-

1 Translator’s note: Niemeyer’s notion of Weltverkehrsrecht relates to commerce and communication in the broadest sense, including trade, traffic, transport, postal services, and telecommunication along with others.

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tions develops its standards much more completely in the well understood interests of all members of the legal community than domestic law. When one recognises and consequently pursues the basic principle that public international law is only established through State consensus, unfettered validity of this standard must result. Though asserted by Spinoza as an argument against the existence of public international law, the observation that States only consider themselves bound by norms of public international law if and only to the extent that they want to, in modern thought represents the basis of possibility and reality of public international law. Indeed, arbitrariness of States, their sovereign self-assertion, and freedom of action will become limited by the reason of things. It is reason that forces States to uphold their promises and cultivate collective interests and common missions through common work. One should carefully examine the growth in reputation and power that the German Empire has experienced through the Universal Postal Union, as well as the increase in international standing through its influential participation not only in the World Congresses of 1878 and 1885, but also the Hague Conferences of 1899 and 1907. If one considers the extent of economic benefit to each individual nation through long-term trade treaties and establishment treaties, through international accords on telegraphy and railways, on transport facilities of every other kind, on intellectual property and legal assistance, one would do proper justice to the worth of international organisations and indispensability of public international law ties rather than see them as an irritating impairment to national freedom. The phrase that was invoked by Kaiser Wilhelm in Bremen regarding trade (which is derived from the American literature) can be applied to these goals: ‘Our trouble now is not so much to vanquish as to find.’ The blossoming of nations does not require the disintegration of competing interests; mutually respectful and helpful States can grow from the constructive power of cooperation and good will.”

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§ 6: Application of the Idea of Law to the Relations of States I. If one searches not only for a logical definition of law (which is not important for these purposes) but moreover a description of the essentials that appear in legal life, it follows not only from a wealth of practical views but also from a thoughtful immersion into interrelationships within common life that all law approaches individuals by coercing them into adjusting their behaviours to co-existence, to adapt their doings to consider their fellow man and future man, and to measure the aspirations of oneself against those of others. One sees straight away that nothing here expressly contrasts the particular nature of law to every other requirement of human social behaviour, which we aggregate into the name moral rules, and which conventional morality follows in a similar nature. Indeed, the boundaries between these areas are fluid, and law does not differ in the above requirement, that can be termed as the categorical imperative of social life, from both of the other areas named above. If one searches for the detailed characteristics of the requirements of law with regard to its contents, it highlights the necessity to differentiate between that which is actually demanded (positive law) and that which should justly be demanded (natural law). Positive law is not open to a general contemplation of the kind described above. Such nonsensical and unjust legal requirements can be established and enforced by the ruling classes (tyranny of the masses and tyranny of individuals amount to the same thing here) that every reasonable standard is excluded; a ladder with many rungs bridges the gap from this type of law to just law. It follows that only the just content of the law is open to a general discussion of its characteristics. As stated above, we are not discussing definitions here. Definitions must be differentiated from concise descriptions that are not dialectically exhaustive, but instead try to evoke psychological associations and which mean much more than their words lexically say.

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An example is Kant’s categorical imperative “act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction” and further Kant’s “determination of the legal concept” through the sentence “law is the totality of the conditions under which the arbitrary will of one can co-exist with the arbitrary will of another according to the general law of freedom.” Kant’s formulations majestically point towards the right way, but do not lead all the way to the end. They limit themselves to the socially necessary and do not also include the merely useful. We must progress further upon the path forged by Kant. The sociological awareness that has arisen in the 19th century has opened up the horizon to us in that the law and the State are not just tools towards maintaining order and guarding against injustice, but functions of fruitful co-operation – organisations for the resolution of the highest cultural challenges. […] The socialised State of the 20th century has made such progress towards the purposes of culture and welfare, as well as to the principle of participation in law, that it is redundant to say anything particular about it here. In conclusion we can state that according to today’s prevailing attitudes, just law should have two aims: Maintenance of order and welfare. II. When applied to the relationship of States, the idea of law set out above leads to recognition that public international law has developed in a way in so far opposed to national law as strangely the development of international maintenance of welfare is far outstripping the maintenance of order. The latter is by no means universally supported and the basis for international legal relations is challenged again and again by war and other acts of violence breaching and supplanting the peaceful order. This is not only the current state of affairs, but the normatively accepted situation in prevailing public international law, which allows war. This needs to be examined in more detail.

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[…] VII. The expanse of individual subjects which are already partly contained in recognised public international legal science, and partly result from expansion of the science of international law advocated here, is not the purpose of this article. Instead, please permit me to reproduce the scientific credo which this author, being the director and representative of the seminar for international law at the University of Kiel committed to his care, presented on the occasion of a message to students in the field: “We believe that, in spite of every disintegration, in spite of all the madness, and in spite of every crime, public international law, as an idea and phenomenon, has stayed as it was. We believe that during the Great War a lot of untrue public international law has been de-cloaked and scores of real public international law have been clarified in the fire. Furthermore, we believe that the international law of war is only characterised by war. We deem that war is nevermore a legal matter, meaning as a whole a fact ruled by public international law, but that international law of war is only possible in particular relations that are detached from purposes of war. We think that there will be war as long as the pursuit of power guides the politics of States, and we think that for as long as the consciousness of international solidarity of interests and the pursuit of reciprocal respect and reciprocal assistance does not determine State politics, even in peacetime war will lurk in the shadows of international co-operation – and necessarily consideration of it will form the last standard of international politics. However, we believe with the greatest conviction in the progress and ultimate victory of the communal idea, and thus in the future of public international law, on the foundations of reason.”

International Law as ‘Science’ – Reflections on a Mandarin Essay MARTTI KOSKENNIEMI(

When Theodor Niemeyer published, in 1917, his review of the future tasks of international legal science, he was rehearsing a theme that was new neither to him nor to his role as a German professor. As he pointed out in the dedication, this was a summary of 30 years of scientific work. He felt therefore free to quote extensively from his earlier writings and speeches in a text that, he suggested, was to bring to future generations not only the accomplishments of the old one but also its commitment to “truth, justice, and freedom.”1 The war was still going on when he published these reflections and, no doubt, there was much anxiety amongst the rather thin liberal faction among German professors about what was in store for Germany and Europe in the future. But the essay was more than just a set of personal reflections triggered by the political anxieties in a world at war. It was a time-honoured practice to have German university professors occasionally address their students with the view of reflecting on the existential questions faced by the academy or that were more widely part of the Zeitgeist. In this way they would step into the image of the charismatic professor that was part of the Humboldtian ethos of the university, where research and education were one and the same and the professor was expected to deliver not only information but a whole attitude to scientific work.2 The professors were the mandarins of German society, standing aloof from its mundane pursuits.3 They were assumed to (

Academy Professor, University of Helsinki, FBA.

1

Theodor Niemeyer, Aufgaben künftiger Völkerrechtswissenchaft (1917), Vorwort.

2

For an excellent description, see William Clark, Academic Charisma and the Origins of the Research University (2006). 3

See further Fritz Ringer, The Decline of The German Mandarins: The German Academic Community 1890–1933 (1969).

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possess deep wisdom produced by years of intense scientific labour, an altogether supra-human group of men (of course they were all men) expected to descend at times from the cathedra to deliver invaluable drops of wisdom from the ocean of their knowledge. That Niemeyer chose to write of a commitment to “truth, justice, and freedom” was completely in the style of this genre of academic performance, calculated to convey a message of intimacy and depth to the students expected to receive it with awe and gratitude. It is impossible not to be reminded of another address, also given in 1917 but published two years later, by another German professor, Max Weber, to the Bavarian section of the Freistudentischer Bund on the vocation – or Beruf – of the scientist, well known for addressing many aspects of the scientific work that were also Niemeyer’s subject.4 The following reflections will compare aspects of both texts, with the aim of foregrounding a certain sensibility about legal study characteristic of the German academy, without which a text such as Niemeyer’s cannot be properly comprehended. What strikes a non-German reader in Niemeyer’s piece is his intense concentration on international law as ‘science’ and the urgency of doing it right; for, as he assumed, international peace, justice, and freedom would themselves depend on the correct – that is to say, the properly scientific – approach to the field. Engagement in science was not just a profession or a craft among others. It was quite essential for the future of humanity. In this essay Niemeyer highlighted the teleological character of what he had been practising the past three decades: The point of international legal science was to further the objectives of the international legal community, especially order and welfare.5 This, he admitted, no doubt in view of the war and the crisis of learning that had been brewing in Germany since the 1890s,6 raised the possibility of a conflict between those objectives and the policies and preferences of one’s own State. How should such a conflict be decided? Niemeyer’s response was clear: supporting the policy of his State in spite of what the scientist knows to be universally right would be

4

I have used the Finnish text of that famous address, reproduced in Max Weber, Tiede ja Politiikka: Kutsumus ja ammatti (2009), 25–66. 5 6

Niemeyer (note 1), 33, 39.

For the crisis, brought about by a turn to subjectivism, irrationalism, attacks on science, and positivism as well as völkisch nationalism in German intellectual life, see Ringer (note 3), 345–351.

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a lie. It would violate the notion of law and the value of science.7 To adopt a nationalist viewpoint against one’s better judgement would, in Niemeyer’s own carefully chosen turn of phrase, “sin against the holy spirit of science.”8 But as international lawyers have always added, it would also violate the rightly understood long-term interests of the State as well. Whatever acute conflict might reign in the world, however deep the antagonisms, the real interests of States were in harmony – Niemeyer referred to the “solidarity of interests of States.” It was the duty of the scientist to bring the fact of that harmony to the surface.9 The formal objective of international law as science was “study of the conditions for the emergence of relations between States and nations that reflect the idea of law” (“Rechtsgedanken entsprechend”).10 There was no conflict between this objective and the interest of the nation. In this way, he wanted to assure his audience that support of international law must be in the properly understood interests of every nation, including Germany. While much of this resembles Weber’s address to his students, there were some notable differences. Weber began with a comparison of the German and United States (US) academic establishments, no doubt because he had visited the US shortly before. Niemeyer had nothing to say about the conditions of scientific work in Kiel, or indeed at any German university, let alone academic institutions elsewhere. Moreover, where Weber contextualised himself in his German environment, occasionally reflecting on its differences with the French, British, and American ones, Niemeyer spoke as if from nowhere, firmly believing, at least implicitly, that the ‘science of international law’ was the same irrespective of the location where it was exercised. His international legal science was universal, its styles and criteria of validity independent of time and place. Weber also addressed what he believed to be a universal feature of the pursuit of science, namely the relationship between intuition and labour. He gave a familiar description of scientific work as slow, unassuming, low-level toiling away in a laboratory or a library, occasionally interrupted by a brilliant insight. This dialectic cannot be controlled, Weber observed. Intuition cannot be programmed, and it may

7

Niemeyer (note 1), 12.

8

Ibid., 13.

9

Ibid., 23.

10

Ibid., 14.

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never arrive. In science as well as the career of the scientist, much depended on luck, he stressed, thereby breaking somewhat with the mandarin rationalism.11 Niemeyer had little to report about the technical pursuit of international legal science beyond the need to take account of the work of previous generations of scientists and not to let one’s insight be captured by national bias or policy. He did list “terminology, systematic, and dogmatics” as international law’s techniques but set them aside so as to concentrate on science itself.12 This was, of course, Weber’s concern, too. Weber famously insisted on the value-freedom of science; science may well examine the operation of values in society, but it cannot become an advocate of them. His short depiction of legal science, for example, was completely devoted to the image of formalist positivism. It was the task of the legal scientist only to report on what, in accordance with the logical and customary methods of norm-identification, was valid and binding as law, rejecting the (naturalist) way of proposing specific laws to society.13 It was necessary to uphold the distinction between the professor and the prophet. Weber regarded those who impose their evaluations on students as frankly irresponsible. The students were unable and not expected to respond critically. ‘Subjective’ opinions simply did not belong in the classroom. Niemeyer did not address the question of value-freedom directly. However, he did assume that science had to do with definable preferences that can be distinguished, for example, from opinions and interests (of States). In fact, as pointed out above, Niemeyer thought that the science of international law was committed to some values – especially those of “welfare” – and it did its proper work only as long as it kept its objective in focus. He also thought it possible by means of science to capture the right content of the law (“der richtige Inhalt des Rechtes”) in contradistinction to mere positive law, brought about by legislation that could equally well express the tyranny of the masses as it could the tyranny of a single person.14 To that extent, Niemeyer was indeed one of Weber’s ‘prophets.’ This was the most important difference between the two mandarins. In Weber’s lecture and life the theme of ‘polytheism’ played a defining role; 11

Weber (note 4), 34–37.

12

Niemeyer (note 1), 5, 3.

13

Weber (note 4), 49.

14

Niemeyer (note 1), 30.

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for Weber it was a basic fact about modernity (the object of his studies) that it had become “disenchanted” (“entzaubert”). It had not only given up on a theological view of the world but had become sceptical with regard to any solid system of normative truths. There was no overriding system of values to deal with the fact that different people served different gods. Everyone was a prisoner of their faith with no possibility of reaching the transcendental. It is not fully clear whether Niemeyer might have subscribed to Weber’s scepticism as a matter of principle. But clearly, he either did not have the faintest doubt that international law was ‘good,’ that welfare (and, to a lesser extent, ‘order’) was its objective, and that this view was shared by everyone, or at least that disagreements about its substance were not fundamental. Maybe he pretended that the science of international law captured some set of objective values and as long as it was put forward through a scientific vocabulary it would counter no significant opposition. Or finally, perhaps he thought that during wartime, when international law had come to appear exceedingly brittle, it would have been irresponsible to express the kind of scepticism for which his colleague, the sociologist, was known. The difference between the ‘subjectivist’ Weber and the ‘objectivist’ Niemeyer marks of course a huge and defining gap, not only within the German academy but also in the cultural consciousness of the contemporaries. It is now Weber who is distinctly ‘modern’ while Niemeyer seems equally clearly ‘traditional.’ This may seem odd to the extent that Niemeyer was so obviously enchanted by the various technological tools that modernity had produced, the instruments that he assumed will compel nations to the path of an institutionalised community and global welfare. His interest in Kiel had been above all to study and develop the kinds of complex legal institutions that would be able to deal with modernity’s problems in a progressive way – the address contains a long list of new forms of technical international cooperation that, he assumed, had arisen almost as if following a natural law (“wie ein Naturgesetz”) to give expression to a consensus among States about how to cater to their cultural interests.15 But enthusiasm about technology was not in conflict with Niemeyer’s moral traditionalism; in fact, that combination would become a defining feature of interwar international law.16 This made him one of Weber’s ‘prophets,’ no doubt, 15 16

Ibid., 24–26.

Nathaniel Berman, Modernism, Nationalism, and the Rhetoric of Reconstruction, Yale Journal of Law and the Humanities 4 (1992), 351.

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preaching the way international law would bring all nations together in a functional commonwealth of shared interests. The contrast between Niemeyer and Weber may also be illustrated by their uses of the notion of ‘progress’ that they both think important for science, but that they understand in completely different ways. For Niemeyer, ‘progress’ was about changing the external conditions of the world so as to advance global welfare. Weber accepted ‘progress’ as intrinsic to science but as meaning the internal development of the scientific understanding. Niemeyer’s Aufgaben was devoted to the improvement of the human condition, with the assumption that there was no important disagreement about what constitutes ‘improvement.’ Weber, by contrast, and perhaps characteristically, took up the topos of progress to refer to the anxiety that every scientist felt about the internal advancement of science that never ends and that will in due course always undermine received wisdoms. What good is it, Weber asked, to continue a pursuit that never ends, that is never finished? Niemeyer did not turn to the scientist in this way. For him ‘progress’ was an objective, external phenomenon that science, understood in a fully instrumental fashion, was designed to bring about. This reveals a huge ideological difference in the attitude of the two men in relation to their scientific work. Weber’s Beruf was a complex of ideas that joined an ethical commitment with craftsmanship but was also an existential, strategic choice to cope with the fact of the world’s irreducible polytheism. It is no surprise that one of the great admirers of Weber in later years was the Frankfurt jurist Hans Morgenthau who finally left international law partly owing to what he believed was its inability to cope with a tragic world of existential choices. Weber referred to Nietzsche in his Beruf lecture on science to make the point that humankind was unable to produce happiness; only “big children on their teacher’s pedestal” still believed otherwise.17 Even at a time of war, Niemeyer looked optimistically into the future of peace and consensus; the commonality of interests in bringing about the objects of order and welfare will in due course compel (“like natural law”) States into cooperation so as to bring about the “final victory of the communal idea” (“Sieg des Gemeinschaftsdenkens”). When Niemeyer wrote that this was a matter in which he believed “with the greatest conviction” (“in tiefster Überzeugung”), the reader observes him moving away from pure rationalism and into the kind of ‘faith’ that no doubt is 17

Weber (note 4), 46.

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part of ‘vocation’ but also emanates from the kind of subjectivism that Weber attacked in what he saw as the young generation’s search for ‘personality’ and ‘personal experience.’ It is this tension, I suppose, that still makes international law something more than just a craft, bringing to it those who wish to join a career in the academy with the sense of being at the service of a higher ideal or a historical process whose truth cannot be demonstrated but must always be accepted as faith.

FOCUS LAW OF THE SEA IN THE 21ST CENTURY

The Law of the Sea as a Research Focus in Kiel: Looking Back and Moving Ahead NELE MATZ-LÜCK(

The Walther Schücking Institute for International Law commemorated its 100th anniversary in 2014. Its history and development have been closely tied to issues concerning the law of the sea from its foundation to today’s research activities.1 The role that the international law of the sea has played throughout its history was one of the main reasons why the Institute hosted, in March 2014, an international conference entitled “Law of the Sea in the 21st Century: Stalemate or Flexibility to Address New Challenges?” to mark the beginning of a series of events on the occasion of its anniversary. The following contributions by Shunji Yanai, Bing Bing Jia, Rüdiger Wolfrum, Liesbeth Lijnzaad, Yoshifumi Tanaka, Tullio Scovazzi, Doris König, Alexander Proelss, and Isabel Feichtner which this volume’s Focus Section compiles are based upon the papers presented at the symposium.

I. The Role of the Law of the Sea in the History of the Walther Schücking Institute At the time of the Institute’s founding, new means of transporting people and goods more quickly around the globe but also new technologies for the international exchange of information raised a growing interest in international regulation of what (

Professor of the Law of the Sea at Kiel University, and Co-Director of the Walther Schücking Institute for International Law. 1 For comprehensive articles on the Institute’s history see Ursula E. Heinz, 100 Jahre WaltherSchücking-Institut für Internationales Recht, in: Jost Delbrück et al. (eds.), Aus Kiel in die Welt: Kiel’s Contribution to International Law (2014), 13; Andreas von Arnauld, 100 Jahre ‘Frieden durch Recht:’ Das Walther-Schücking-Institut für Internationales Recht, Christiana Albertina 79 (2014), 61.

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can be considered a first impression of ‘globalisation.’ The Institute’s founding director, Theodor Niemeyer, who was originally a professor for Roman Law and Civil Law at Kiel University, gained a profound interest in public international law from lecturing, inter alia, on the law of the sea at the Imperial Naval Academy (Kaiserliche Marineakademie) in Kiel. Even before the founding of the Institute, Niemeyer had published regularly on issues related to the international law of naval warfare such as the confiscation of neutral merchant vessels in 1900,2 the international dimension of the shelling of English fishing vessels by Russian warships in 1904,3 English food imports and the law of naval warfare in 1906,4 and more generally on the principles of naval warfare in 1909,5 1910,6 and 1912.7 Although the law of the sea eventually formed only a small part of the Institute’s research activities in its early years, despite further publications on naval warfare, as Niemeyer proceeded to work on other issues of public international law, the interest of the Prussian administration had been sparked by the founding of the Institute, which is the oldest university institute for international law in the world. Niemeyer, who also functioned as a legal advisor for the Imperial Navy and the Foreign Ministry in addition to many other positions which he held to promote international law, supervised a variety of doctoral candidates working on maritime issues. Dissertation topics under Niemeyer’s supervision included the transformation of merchant vessels into warships, the freedom of the seas in times of peace, the international law related to the staff of armed merchant vessels, the coastal sea, and the international law applicable to the North Sea.8 The Institute’s research focus largely shifted towards public international law’s function in pursuing and maintaining international peace after the end of World 2

Theodor Niemeyer, Zur Beschlagnahme neutraler Handelsschiffe, Deutsche Juristen-Zeitung (DJZ) 5 (1900), 53. 3 Id., Die Beschießung englischer Fischerboote durch russische Kriegsschiffe in völkerrechtlicher Beleuchtung, DJZ 9 (1904), 1049. 4

Id., Englands Lebensmitteleinfuhr und das Seekriegsrecht, Marine Rundschau 17 (1906), 1103.

5

Id., Prinzipien des Seekriegsrechts (1909).

6

Id., Das Seekriegsrecht nach der Londoner Deklaration vom 26. Februar 1909 (1910).

7

Id., Tripolitanischer Krieg und Seekriegsrecht, DJZ 17 (1912), 241.

8

A list of all doctoral dissertations supervised at the Walther Schücking Institute since 1914 with their authors and German titles is published as an annex in Jost Delbrück et al. (eds.) (note 1), 977.

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War I. The Institute’s second Director, Walther Schücking, further promoted research in the legal prerequisites for international peace. During these times, the law of the sea continued to play only a marginal role. This is despite further doctoral research on issues such as the immunity of government vessels, the principle of internationality of waterways which connect seas and the Panama Canal, and the right to hot pursuit at sea, which were supervised by Walther Schücking before he lost his position at the Institute and Kiel University due to his alleged lack of political reliability under the new National Socialist government in 1933. In the years after Schücking’s dismissal and before Paul Ritterbusch, a loyal supporter of the National Socialist government, took office, Curt Rühland and Walther Schoenborn continued to supervise dissertations including one on private property during times of naval warfare (supervised by Schoenborn). In the years before and during World War II (WWII), Viktor Böhmert, who functioned as a professor and later co-director of the Institute, published articles on maritime boundaries with regard to fisheries jurisdiction, e.g. in Iceland, Greenland, and Russia.9 Generally, however, research activities at the Institute had largely come to a standstill until Hermann von Mangoldt actively revived the Institute’s scientific activities and publications after WWII. In addition to his research on the law relating to fisheries, Böhmert supervised various doctoral dissertations on the law of the sea after the end of WWII on issues such as the freedom of navigation in international law with particular emphasis on the principle of non-discrimination, the continental shelf, the boundaries of territorial waters in Northern Germany, the admissibility of baselines diverging from the natural coastline, the international law applicable to cables in the seas in times of peace, as well as the dissertation by Uwe Jenisch on the right to military manoeuvres and experiments on the high seas in times of peace.10 Jenisch later participated in the Third United Nations (UN) Conference on the Law of the Sea as a member of the German delegation and became honorary professor for the law of the sea at the University of Kiel. 9

Viktor Böhmert, Die isländische Fischereigrenze, Zeitschrift für Völkerrecht (ZVR) 20 (1936), 385; id., Die grönländische Fischereigrenze, ZVR 21 (1937), 46; id., Die russische Fischereigrenze (I), ZVR 21 (1937), 441; and id., Die russische Fischereigrenze (II), ZVR 22 (1938), 257; id., Die Fischereigrenzen des Nordens, vol. 1 (1940). 10

Uwe Jenisch, Das Recht zur Vornahme militärischer Übungen und Versuche auf Hoher See in Friedenszeiten (1970).

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It was Eberhard Menzel, director since 1955, who was legal advisor to Germany in the North Sea Continental Shelf Cases11 at the International Court of Justice (ICJ) in The Hague and who created a renewed focus on the law of the sea, despite his many other interests, which included human rights and space law. Potentially influenced by his participation in the North Sea Continental Shelf Cases, Menzel organised a symposium at the Institute on the use of the seabed beyond the continental shelf in 1969.12 From the doctoral students supervised by Menzel two who pursued careers closely tied to the law of the sea shall be mentioned: Peter Ehlers who became president of the German Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie) and Rainer Lagoni who became professor for the law of the sea at Hamburg University. When Rüdiger Wolfrum joined the Institute as co-director to Jost Delbrück, the law of the sea was firmly established as a research focus. Wolfrum participated in the Third UN Conference on the Law of the Sea as an advisor to the German Foreign Ministry as well as in the preparatory commissions for the International Seabed Authority (ISA) and the International Tribunal for the Law of the Sea (ITLOS) respectively. In addition, he was a member of the delegation to the Special Consultative Meeting on mineral resources in Antarctica where he presided over the working group on international law. After he left the Walther Schücking Institute to become a director of the Max Planck Institute for Comparative Public Law and International Law, he was elected a judge at the ITLOS. During his time in Kiel his advisory activities resulted in hosting large interdisciplinary conferences entitled “Antarctic Challenge” in Kiel in 1983, 1985, and 1987.13 Already in 1982, Jost Delbrück had organised a symposium on “The New Law of the Sea.”14 Another large conference entitled “Law of the Sea at the Crossroads” was held in 1990.15 11

International Court of Justice (ICJ), North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3. 12

Institut für Internationales Recht Kiel, Die Nutzung des Meeresgrundes außerhalb des Festlandsockels (Tiefsee): Vorträge und Diskussionen eines Symposiums (1970). 13

Rüdiger Wolfrum (ed.), Antarctic Challenge (1983); id. (ed.), Antarctic Challenge II (1986); id. (ed.), Antarctic Challenge III (1988). 14 15

Jost Delbrück, Das neue Seerecht: internationale und nationale Perspektiven (1984).

Rüdiger Wolfrum (ed.), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Régime (1991).

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Another reason for hosting a symposium on the law of the sea, in addition to going back in history to the founding of the Institute, is that the Cluster of Excellence “Future Ocean” has been sponsoring a professorship of the law of the sea at the Walther Schücking Institute since 2007. This emphasises the great interest in research on the legal rules of ocean governance as a cross-cutting issue in marine sciences and legal contributions to an interdisciplinary dialogue. Alexander Proelss, who held the position between 2007 and 2010, organised an interdisciplinary workshop on “Marine and Coastal Resources: Risks and Law” in 2008, as well as a symposium on “The Nord Stream Pipeline: Legal, Economic and Environmental Issues.”16 Needless to say that with Rüdiger Wolfrum, Alexander Proelss, and the current working group on the law of the sea a substantive number of doctoral dissertations deal with issues related to the law of the sea, including dissertations on ocean fertilisation, marine scientific research, the transfer of a common heritage approach to marine living resources, and environmental standards for deep-seabed mining to name but a few either recently finished or ongoing projects. Moreover, the Cluster of Excellence maintains a doctoral and post-doctoral fellowship programme and via this programme, the Institute was able to attract young researchers who support the Institute’s working group on the law of the sea. Regular courses at the Cluster’s Integrated School for Ocean Sciences, a school for young scientists at the doctoral level, aim at making researchers from natural sciences familiar with legal instruments of ocean governance and strengthen the exchange between science and the law of the sea.

II. Law of the Sea in the 21st Century: The 2014 International Conference in Kiel It is this rich tradition of international conferences, which were regularly held at the Walther Schücking Institute on the law of the sea and many other relevant issues of public international law that the current directors aimed at reviving in the anniversary year. The international conference on “The Law of the Sea in the 21st Century: Stalemate or Flexibility to Address New Challenges?” was designed to offer a platform to identify and discuss the need for action in contemporary “Ocean Governance.” It aimed at identifying the problem areas and discussing the solutions in order 16

The conference papers were published in German Yearbook of International Law 52 (2009), 233.

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to develop new approaches for policy makers. The law of the sea has to be flexible in regard to change and progress. Its mechanisms are put to the test by the effects of climate change and the rise of new technologies for the exploitation of marine resources as well as by well known problems such as overfishing. Despite the need for flexibility, the view prevails that any formal amendment of the UN Convention on the Law of the Sea 30 years after its adoption is impossible due to the Convention’s character as a “package deal.” One particular focus of presentations and discussions was the extent to which the current legal framework offers room for flexibility to adapt legal mechanisms to new challenges. Another relevant issue concerned the institutional dimension and the question to what extent, for example, international courts and tribunals, the ISA, but also informal institutions can address key issues of modern ocean governance such as the solution of boundary issues, maritime security, management of living resources, and the exploitation of mineral resources in the Area. Close to 100 participants from all over the world registered for the conference and travelled to Kiel to engage in academic exchange on these questions. Although the lively discussions with the audience have not been recorded and cannot be reproduced together with the compilation of essays, it is our hope that the publication of the conference papers gives the reader an idea of the high quality of the presentation and the productive working atmosphere at the symposium. The same holds true for the second international conference organised by the Institute in 2014, which was entitled “100 Years of Peace Through Law: Past and Future” and which successfully sought to demonstrate how international law makes a valuable contributes in many different ways to restoring and maintaining peace despite its inherent limitations. During both conferences hosted in 2014, the emphasis of presentations and discussions was not a stock-taking of what international law is de lege lata but particularly what it can offer and how it could be adjusted to cope with current challenges and future developments. As an academically enriching atmosphere and the desire to advance international law seem to be valued traditions in the Institute’s history of hosting international conferences, the organisers express their hope of keeping this up in the Institute’s future and take this opportunity to thank all authors, participants, and, particularly, the Institute’s staff for making the anniversary events a great success.

Can the UNCLOS Address Challenges of the 21st Century? SHUNJI YANAI(

ABSTRACT: The 1958 Geneva Conventions gave rise to disputes between coastal States and distant fishing nations owing to the lack of agreement on the breadth of the territorial sea and left room for differing interpretations in respect of the outer limits of the continental shelf. The United Nations Convention on the Law of the Sea put an end to this legal disorder with the 12 nm territorial sea and a new definition of the continental shelf. The new regimes under the UNCLOS include those for straits used for international navigation, archipelagic waters, the 200 nm exclusive economic zone, and the international seabed Area beyond national jurisdiction. The Commission on the Limits of the Continental Shelf, the International Seabed Authority, and the International Tribunal for the Law of the Sea ensure the coherent and efficient implementation of the UNCLOS. The UNCLOS established an innovative, complex yet flexible system of dispute settlement. Certain questions were foreseen and addressed during the Third United Nations Conference on the Law of the Sea, but others were neither anticipated nor discussed. Questions in the first category include the delimitation of the EEZ and continental shelf, and in the second the bunkering of fishing vessels in the EEZ. Further issues not covered even implicitly by the UNCLOS would require new international legislation. KEYWORDS: 1958 Geneva Conventions, UNCLOS, Relations between CLCS, ISA, and ITLOS, Dispute Settlement Procedures under UNCLOS, Provisions on the Delimitation of the EEZ and Continental Shelf, Case Law on Delimitation, New Challenges under UNCLOS, The Law of the Sea beyond UNCLOS

I. Introduction The role of the sea has never been as important as it is today in all fields of human activities including fishing, exploitation of mineral resources, transportation, energy production, and environmental protection. It is therefore vital to maintain peace and order on the seas and oceans and to encourage the sustainable development of marine resources for the future of mankind. In 2012, the United Nations General Assembly (

Judge at the International Tribunal for the Law of the Sea.

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(UNGA) commemorated the 30th anniversary of the opening for signature of the United Nations Convention on the Law of the Sea (UNCLOS).1 In July 2014, the International Seabed Authority (ISA)2 held a Commemorative Session of its Assembly to mark the 20th anniversary of the establishment of the ISA under the UNCLOS. For over 30 years, the UNCLOS, which is often referred to as the ‘Constitution of the Sea,’ has been the mainstay in the efforts to achieve these objectives. Before discussing new challenges, it would be useful to glance back to the time before the UNCLOS was adopted. To a certain extent, the 1958 Geneva Conventions on the Law of the Sea3 codified customary international law and also established the regime of the continental shelf and the contiguous zone. However, States were unable to agree on the breadth of the territorial sea under the Convention on the Territorial Sea and the Contiguous Zone of 1958 (1958 Territorial Sea Convention) and they failed again to agree on the breadth of the territorial sea at the Second United Nations Conference on the Law of the Sea held in 1960. Given this lack of agreement on the breadth of the territorial sea, a number of coastal States claimed territorial seas of up to 6 nautical miles (nm), 12 nm, or even more, while others maintained the traditional 3 nm territorial sea limit. This gave rise to disputes, for instance, between coastal States and distant-sea fishing States. Specifically, incidents arose in which vessels flying the flag of a State maintaining a 3 nm territorial sea were arrested by a coastal State claiming a 12nm territorial sea, on the grounds that the vessels were fishing without license in its territorial sea at a distance between 3 nm and 12 nm from its coasts. The coastal State concerned considered this maritime area to lie within its territorial sea, while the flag State concerned, having maintained the traditional 3 nm limit, considered the same area as part of the high seas. Negotiations with a view to settling such disputes were extremely difficult because of the lack of international agreement on the breadth of the territorial sea and the conflicting positions on the matter taken by the flag State and the coastal State concerned.

1

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

2

Arts. 1 (1) and 156 UNCLOS.

3

The First United Nations Conference on the Law of the Sea resulted in the signing of the following four conventions at Geneva on 29 April 1958: Convention on the Territorial Sea and the Contiguous Zone, UNTS 516, 205; Convention on the Continental Shelf, UNTS 499, 311; Convention on the High Seas, UNTS 450, 11; Convention on Fishing and Conservation of the Living Resources of the High Seas, UNTS 559, 285.

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In addition, the Convention on the Continental Shelf of 1958 (1958 Continental Shelf Convention) left room for differing interpretations in respect of the outer limits of the continental shelf. Article 1 1958 Continental Shelf Convention defines the continental shelf as follows: For the purposes of these articles, the term “continental shelf” is used as referring (a) to the seabed and the subsoil of the submarine area adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

Under this definition the relevant criteria are the adjacency to the coast and the depth of the superjacent waters, that is, a depth of 200 metres or, beyond that limit, to where the depth of such waters admits of the exploitation of the natural resources of the seabed and subsoil of the submarine areas. Unlike the criterion of depth of 200 metres, exploitability cannot serve as an objective criterion, dependent as it is on the state of technology for the exploitation of the natural resources of the continental shelf. This was the inherent difficulty involved in the definition of the continental shelf under the 1958 Continental Shelf Convention, which engendered disputes among States concerning the extent of coastal States’ national jurisdiction over the continental shelf. The legal disorder of the sea was further aggravated by the unilateral establishment of fishery zones or exclusive economic zones (EEZ) extending to 200 nm by major coastal States in the 1970s before the conclusion of the Third United Nations Conference on the Law of the Sea (UNCLOS III).

II. Impact of the UNCLOS The UNCLOS put an end to the legal disorder reigning in respect of the sea. At the UNCLOS III, States finally agreed on the breadth of the territorial sea up to a limit of 12 nm. In addition to the existing maritime zones under national jurisdiction, the Convention established new regimes such as those for straits used for international navigation, archipelagic waters, and the 200 nm EEZ and redefined the continental shelf within and beyond 200 nm. Further, it created an entirely new international maritime regime, that of the seabed and ocean floor and subsoil thereof beyond the

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limits of national jurisdiction (the Area). The Area and its resources are the common heritage of mankind. With respect to the definition of the continental shelf under the 1958 Continental Shelf Convention, which gave rise to differing interpretations of the shelf’s outer limits, the UNCLOS abandoned the definition based on a 200 meter depth of superjacent waters and the exploitability of the natural resources of the seabed and subsoil. A completely new definition of the continental shelf is given in Article 76 (1) UNCLOS, reading as follows: The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nm from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Article 76 (3) UNCLOS defines the ‘continental margin,’ referred to in Article 76 (1), as follows: The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

Where the outer edge of the continental margin extends beyond 200 nm, the continental shelf of a coastal State cannot extend beyond the limits provided for in Article 76 (4) to (6) UNCLOS. The main provisions of Article 76 (4) and (5) respectively read: A line delineated by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or a line delineated by reference to fixed points not more than 60 nm from the foot of the continental slope.4 The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4(a) (i) and (ii), either shall not exceed 350 nm from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nm from the 2,500 metre isobaths, which is a line connecting the depth of 2,500 metres.5

4

Art. 76 (4)(a)(i) and (ii) UNCLOS.

5

Art. 76 (5) UNCLOS.

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As the UNCLOS comprises complex provisions such as those concerning the continental shelf, which are difficult to implement or may give rise to disputes between States parties to the UNCLOS, it sets up an institutional framework for interpreting and implementing its provisions. In addition to such existing institutions as the United Nations (UN), the Specialized Agencies, and the International Court of Justice (ICJ), the UNCLOS established the Commission on the Limits of the Continental Shelf (CLCS), the ISA, and the International Tribunal for the Law of the Sea (ITLOS) to ensure the proper interpretation and smooth implementation of its complex provisions. The UNCLOS and its related documents contain hundreds of detailed provisions, which it is fair to say, leave room for differing manners of interpretation and implementation. Thus, we must continue to look to the cumulative State practice and the functions of the above-mentioned international institutions in order to clarify the meaning of these provisions and ensure their smooth implementation. In other words, cooperation among States parties and the support of these institutions are indispensable for preventing disputes over law of the sea matters, peacefully settling any that nevertheless arise, and establishing the rule of law over the seas and oceans.

III. Relations between the Three Institutions Established under the UNCLOS It is noteworthy that the jurisprudence of the ITLOS includes two cases concerning the relationship between the international institutions established under the UNCLOS. The first is the Request for Advisory Opinion Submitted to the Seabed Disputes Chamber (Chamber) of the ITLOS, and the second is the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal. In 2010, the Council of the ISA requested the Chamber to render an advisory opinion on several questions6 regarding the responsibilities and obligations of States 6 In its Decision Requesting an Advisory Opinion Pursuant to Article 191 of the United Nations Convention on the Law of the Sea, ISBA/16/C/13 (2010), the Council of the Authority set forth the questions on which it requested the advisory opinion of the Chamber. By letter dated 11 May 2010, the Secretary-General of the Authority officially communicated to the Chamber the decision of the Council which contained the following questions: 1. What are the legal responsibilities and obligations of States

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sponsoring persons and entities with respect to activities in the Area in accordance with the UNCLOS and the 1994 Agreement relating to the implementation of Part XI of the UNCLOS.7 Fourteen States parties to the UNCLOS, the ISA, and four other international organisations expressed their views by way of written and oral statements. The Chamber, after having examined these views, delivered its advisory opinion8 a little less than nine months after the request had been submitted. In its opinion, the Chamber explained the nature and extent of the responsibilities and obligations of a sponsoring State and gave guidance as to the necessary and appropriate measures that a sponsoring State must take. The Chamber pointed out, in particular, that sponsoring States have two kinds of obligations under the UNCLOS and related instruments: the obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations under the UNCLOS and related instruments (an obligation of ‘due diligence’) and another is the direct obligations which sponsoring States must comply with independent of their obligation to ensure a certain conduct on the part of the sponsored contractors. With respect to the obligation of ‘due diligence,’ the Chamber explained in its advisory opinion that the sponsoring State’s obligation ‘to ensure’ was not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with its obligations. The Chamber went on to state that, it is rather an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. The Chamber opinion further stated that, to use the terminology current in international law, this obligation may be characterised as an obligation ‘of conduct’ and not ‘of result,’ and as an obligation of ‘due diligence.’9 Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982? 2. What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2(b), of the Convention? 3. What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement? Cf. ITLOS, Press Realease, 14 May 2010, availalbe at: http://www.itlos.org/ fileadmin/itlos/documents/press_releases_english/PR_147_E.pdf (accessed on 13 February 2015). 7 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, UNTS 1836, 3. 8

ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10. 9

Ibid., para. 110.

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Among the most important of the direct obligations incumbent on sponsoring States, the advisory opinion enumerates obligations such as the obligation to assist the ISA in the exercise of control over activities in the Area, the obligation to apply a precautionary approach, the obligation to apply best environmental practices, and the obligation to conduct environmental assessments. The ISA welcomed the advisory opinion and took follow-on actions in line with the opinion. In the jurisprudence of the ITLOS, there is another case which is noteworthy in the context of new challenges. The Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal submitted in December 2009, was the first delimitation case to have come before the ITLOS. In a judgment rendered in March 2012,10 the ITLOS delimited the territorial sea, the EEZ, and the continental shelf within 200 nm as well as the continental shelf beyond 200 nm between Bangladesh and Myanmar. With regard to the continental shelf beyond 200 nm, it should be noted that the CLCS has decided, in light of the dispute between Bangladesh and Myanmar over the continental shelf, to defer consideration of the two States’ respective submissions on the limits of the continental shelf beyond 200 nm. If the ITLOS had declined to delimit the continental shelf beyond 200 nm, the resolution of the issue concerning the establishment of the outer limits of the continental shelf of these States might have remained in impasse. In other words, there was an argument that, as long as the outer limits of the continental shelf had not been established on the basis of the recommendations of the CLCS, the ITLOS could not determine the line of delimitation between Bangladesh and Myanmar without knowing what the outer limits were. If this argument had been accepted, the ITLOS would have had to wait for the CLCS to act, and vice versa. The ITLOS concluded: [I]n order to fulfill its responsibilities under […] the Convention in the present case, it has an obligation to adjudicate the dispute and to delimit the continental shelf between the Parties beyond 200 nm. Such delimitation is without prejudice to the establishment of the outer limits of the continental shelf in accordance with article 76, paragraph 8, of the Convention.11 10 International Tribunal for the Law of the Sea (ITLOS), Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012, 4. 11

Ibid., para. 394.

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This is the first judgment of an international court or tribunal delimiting the continental shelf beyond 200 nm. It is noteworthy that the decision in the case was delivered little more than two years after the proceedings were instituted, which is quite a short period for a complex delimitation case and one on which Bangladesh and Myanmar had negotiated for more than 36 years without reaching agreement. It is gratifying to note that both parties welcomed the judgment as fair, equitable, and expeditious. The three institutions established under the UNCLOS have different functions. The CLCS consists of 21 experts in the field of geology, geophysics, or hydrography and is entrusted with the task of examining the information submitted by coastal States on the limits of their continental shelf beyond 200 nm and of making recommendations to the coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the continental shelf established by coastal States on the basis of these recommendations are final and binding.12 The ISA is another institution created by the UNCLOS. It has the task of managing the activities of exploration for and exploitation of the mineral resources of the Area. The UNCLOS provides: “The Area and its resources are the common heritage of mankind”13 and all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part (XI) and the rules, regulations and procedures of the Authority.14

The ITLOS is the judicial institution established under the UNCLOS and specialised in law of the sea matters. Through their respective functions, which are complementary to each other, these three institutions ensure the coherent and efficient implementation of the provisions of the UNCLOS. As mentioned above, the ITLOS, through its Chamber and the advisory opinion, facilitated the work of the ISA by clarifying the meaning and extent of the responsibilities and obligations of States sponsoring persons and entities with regard to activities in the Area. In the delimitation case between Bangladesh and 12

Art. 76 (8) UNCLOS.

13

Art. 136 UNCLOS.

14

Art. 137 (2) UNCLOS.

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Myanmar, the ITLOS removed the obstacle to the work of the CLCS by delimiting the boundary of the continental shelf beyond 200 nm between the two countries. It is gratifying to note that through its judicial work in these two cases the ITLOS was able to contribute to the proper interpretation and the efficient implementation of provisions of the UNCLOS by facilitating the functions of the ISA and the CLCS.

IV. Dispute Settlement Procedures under the UNCLOS The UNCLOS established an innovative, complex yet flexible system of dispute settlement to ensure the proper implementation and efficient application of the provisions of the UNCLOS based on a delicate balancing of divergent interests of nations. Part XV of the UNCLOS gives States the choice of one or more compulsory procedures leading to binding decisions. These procedural settings are the ITLOS, the ICJ, and arbitration. When this system was introduced by the UNCLOS, fears and criticism were expressed to the effect that such a system would cause the fragmentation of jurisprudence on law of the sea matters. Those fears and criticism subsist. The ITLOS, the ICJ, and arbitral tribunals have dealt with a significant number of disputes over law of the sea matters since the UNCLOS entered into force, but it would appear that judges and arbitrators carefully study the judgments and arbitral awards handed down in similar cases by other courts and tribunals and the feared ‘fragmentation’ has not occurred. At the United Nations General Assembly (UNGA) on the occasion of the 30th anniversary of the UNCLOS in 2012, Judge Shunji Yanai, then President of the ITLOS, expressed this same view. Judge Christopher Greenwood of the ICJ echoed it on the same occasion by stating: […] In fact, there has been a remarkable harmony between the pronouncements of the International Court of Justice, the International Tribunal for the Law of the Sea and the Annex VII arbitration tribunals. […] Far from fragmentation, what we have seen is a consistent determination to achieve a clear and coherent jurisprudence across all of the relevant courts and tribunals.15

Under Article 287 UNCLOS, a State can choose, by way of a written declaration, one or more of the four means for the settlement of disputes concerning the interpre15 Commemoration of the Thirtieth Anniversary of the Opening for Signature of the United Nations Convention on the Law of the Sea, Record of the 49th Plenary Meeting, 10 December 2012, UN Doc A/67/PV.49, GAOR, 67th Sess., 17–18 and 20–22.

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tation or application of the UNCLOS, namely the ITLOS, the ICJ, an Annex VII arbitral tribunal, or an Annex VIII arbitral tribunal. If a party to a dispute has not made such declaration, it is deemed to have accepted an Annex VII arbitral tribunal. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure unless the parties otherwise agree. When the parties to a dispute have not accepted the same procedure, the dispute may be submitted only to an Annex VII arbitral tribunal unless the parties otherwise agree. Therefore, this provision makes the Annex VII arbitral tribunal the default compulsory procedure. This flexible UNCLOS dispute settlement system facilitates States parties in pursuing the compulsory procedures of their choice and thus encourages the peaceful settlement of disputes over law of the sea matters. However, some worrisome cases have recently been observed in connection with the compulsory dispute settlement procedures. China did not accept the compulsory Annex VII arbitration instituted by the Philippines concerning the South China Sea dispute. Russia for its part, did not accept the Annex VII arbitration instituted by the Netherlands in the dispute concerning Russia’s boarding and detention of the Dutch flagged vessel Arctic Sunrise and the persons on board. Neither did Russia appear in the urgent procedure at the ITLOS for the prescription of provisional measures requested by the Netherlands pending the constitution of the arbitral tribunal. It is to be noted that the procedure for provisional measures is also a compulsory one. On 22 November 2013, the ITLOS prescribed provisional measures ordering Russia that the vessel Arctic Sunrise and all persons detained in connection with the dispute be released and allowed to leave the territory and maritime areas under the jurisdiction of Russia upon the posting of a bond by the Netherlands in the amount of € 3.6 million. Russia did not comply with this order but later released the vessel and the persons concerned, by its own decision.16 While cases before the ITLOS have increased in number and become diversified, its potential has yet to be fully realised. To cite just a few examples, the ITLOS stands ready to deal efficiently with more delimitation cases, and the ITLOS and its Chamber can render additional useful advisory opinions in the future. In this regard, it is to be noted that in March 2013, the Sub-Regional Fisheries Commission of West Africa 16

ITLOS, The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, 230.

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requested the ITLOS to render an advisory opinion on several questions concerning illegal, unreported, and unregulated fishing activities (IUU fishing activities).17 After having received written statements from interested States and intergovernmental organisations, the ITLOS held a public hearing in September 2014 relating to this request for an advisory opinion. The opinion was delivered on 2 April 2015. With regard to activities in the Area, there would be more of a need for the ISA to request advisory opinions of the Chamber as such activities move from an exploration phase to an exploitation phase. The procedure for the prompt release of vessels can be used in cases of marine pollution in addition to those involving fishing vessels. The ITLOS can make many further contributions to strengthen the rule of law over the seas and oceans.

V. UNCLOS and Case Law At the UNCLOS III, a wide range of law of the sea matters were discussed and negotiated, and detailed provisions were included in the UNCLOS. There are issues that were foreseen at the time of the Conference, but there are also other matters that were not expected nor discussed. The former includes the classic issue of delimitation of the EEZ and the continental shelf relating to which provisions of the UNCLOS do not offer any specific method or criteria. Regarding the delimitation of the territorial sea, the UNCLOS adopted the well-established equidistance rule embodied in the 1958 Territorial Sea 17

In a resolution adopted during its fourteenth session in March 2013, the Conference of Ministers of the Sub-Regional Fisheries Commission (SRFC) authorised the Permanent Secretary of the SRFC “to seize the International Tribunal for the Law of the Sea […] in order to obtain its advisory opinion on the following matters: 1. What are the obligations of the flag State in cases where illegal, unreported and unregulated fishing activities are conducted within the Exclusive Economic Zone of third party States? 2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag? 3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?” The request for an advisory opinion was transmitted by letter dated 27 March 2013 from the Permanent Secretary of the SRFC to the President of the ITLOS. Located in Dakar, Senegal, the SRFC comprises seven Member States: Cabo Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal, and Sierra Leone.

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Convention. Article 15 UNCLOS, which is identical in substance to Article 12 (1) 1958 Territorial Sea Convention, provides as follows: Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

With respect to the delimitation of the continental shelf between States with opposite or adjacent coasts, however, the UNCLOS departed from the equidistance/special circumstances rule of the 1958 Continental Shelf Convention. Although the EEZ was a new maritime zone under national jurisdiction created as a sui generis regime at the UNCLOS III, the question of the delimitation of the EEZ was addressed together with that of the delimitation of the continental shelf at the Conference. As a result, Article 74 (1) (for the EEZ) and Article 83 (1) (for the continental shelf) UNCLOS contain the same provision for the delimitation of both maritime zones; this reads as follows: The delimitation of the exclusive economic zone/continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Throughout the UNCLOS III, there were irreconcilable differences between two groups of States concerning the criteria to be applied in delimiting the EEZ and the continental shelf. One group favoured the equidistance/special circumstances rule and the other favoured the application of equitable principles. At the last stage of negotiations between these two groups, Ambassador Tommy Koh, President of the Conference, proposed a compromise text which was adopted by the UNCLOS III and became Article 74 (1) and Article 83 (1) UNCLOS referred to above. These provisions concerning the delimitation of the EEZ and the continental shelf, however, refer only to the objective or the end result of the delimitation process, which is to achieve an equitable solution, without setting out any method or procedure for resolving overlapping claims by States with opposite or adjacent coasts to the EEZ or the continental shelf. Thus, difficulties or disputes concerning the delimita-

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tion of the EEZ and the continental shelf were foreseen from the time of the UNCLOS III and the adoption of the UNCLOS. This is the main reason why the negotiations on the provisions concerning the delimitation of the EEZ and the continental shelf on the one hand and the negotiations on the dispute settlement clauses of the UNCLOS on the other were closely related with each other throughout the UNCLOS III. Clearly, there is no single or mandatory delimitation method that is applicable to all delimitation cases, as each case arises under unique circumstances. For instance, coastal configurations are different and the geographic relationship between States with opposite or adjacent coasts that are parties to a delimitation dispute also varies from case to case. Coastal configurations may be characterised by the concavity or convexity of the coasts concerned and the existence of islands in the maritime areas where the claims of the States parties to the dispute overlap. Fortunately, international courts and tribunals have developed a body of case law which gives useful guidance to the solution of delimitation issues. These institutions have searched for appropriate methodologies of delimitation of the EEZ and the continental shelf which would be likely to offer certain objectivity and at the same time the flexibility to reflect the unique circumstances of each delimitation case so as to achieve an equitable solution as required by Articles 74 and 83 UNCLOS. Admittedly, equidistance is an objective criterion, but under certain circumstances it may result in an inequitable solution, for instance, when this principle is applied to concave coasts such as those at issue in the North Sea Continental Shelf Cases and the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal. Under such circumstances, the equidistance line must be adjusted to achieve an equitable solution. To achieve an equitable solution in the delimitation of the EEZ and the continental shelf, the ICJ first devised a two-stage method of delimitation commonly known as the ‘equidistance/relevant circumstances method.’ A delimitation process under this method is begun by drawing a median line as the provisional delimitation line. At the second stage, it is then asked whether special circumstances require any adjustment of the provisional delimitation line drawn at the first stage. If an adjustment is considered to be necessary, this provisional line will be modified in order to achieve an equitable solution required under Articles 74 and 83 UNCLOS. The two-stage

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method was first applied in the Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (1993).18 In the years since then, this method has been deemed an appropriate method of delimitation and employed in a number of cases both judicial and arbitral. The ICJ used the two-stage method in the Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (2001)19 and the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (2002).20 This method was also applied by the Arbitral Tribunals in the Arbitration between Barbados and the Republic of Trinidad and Tobago (2006)21 and the Arbitration between Guyana and Suriname (2007).22 From the two-stage method the ICJ developed the three-stage method of delimitation which was employed in the Case Concerning Maritime Delimitation in the Black Sea (2009).23 In this case the ICJ drew a provisional equidistance line and adjusted it taking into account the relevant circumstances, and then at the third stage verified that the line thus adjusted did not lead to “an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line.” Subsequently, the ICJ applied this three-stage method in the Case concerning Territorial and Maritime Dispute (2012).24

18

International Court of Justice (ICJ), Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports 1993, 38, para. 51. 19 Id., Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports 2001, 40, para. 230. 20 Id., Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), Judgment of 10 October 2002, ICJ Reports 2002, 303, para. 288. 21

Arbitration between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between them, Decision of 11 April 2006, Reports of International Arbitral Awards (RIAA) XXVII, 147, para. 242, para. 306. 22

Award in the Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname, Award of 17 September 2007, RIAA XXX, 1, para. 342. 23 ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61, para. 116. 24

Id., Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports 2012, 624, para. 184.

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The ‘angle-bisector method’ is another delimitation method which is likely to offer a certain degree of objectivity. This method has been employed in cases where the ‘equidistance/relevant circumstances method’ is not applicable or may fail to achieve an equitable solution. For instance, physically unstable coastlines make it impossible or inappropriate to use the ‘equidistance/relevant circumstances method’ as the shifting geomorphology renders the drawing of a provisional equidistance line impossible or impracticable. In the ‘angle-bisector method,’ the first step is to draw two lines each of which represents the general direction of the coast of one of the parties. The second step is to draw a bisector line dividing the angle formed by these two lines. The bisector line usually starts from the apex, that is, the point of intersection of the two lines drawn along the relevant coastlines. This starting point is typically the terminus of the land boundary, but it can be a different point, for example, a point agreed upon by the parties.25 This ‘angle-bisector method’ is considered “[a]nother means of modifying the equidistance method in order to discount the effect of incidental coastal features and configurations on the course of the boundary.”26 The ‘angle-bisector method’ was employed in the following cases: the Case Concerning the Continental Shelf (1982),27 the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (1984),28 the Case Concerning Delimitation of the Maritime Boundary between Guinea and Guinea Bissau (1985),29 and the Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (2007).30

25 Nuno Marques Antunes, Toward the Conceptualization of Maritime Delimitation: Legal and Technical Aspects of a Political Process (2003), 163. 26

Leonard Legault/Blair Hanky, Method, Oppositeness and Adjacency, and Proportionality, in: J. I. Carney/L. M. Alexander (eds.), International Maritime Boundaries, vol. I (1993), 203, 208. 27

ICJ, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 18, para. 133 C. (3). 28 Id., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment of 12 October 1984 given by the Chamber Constituted by the Order of the Court on 20 January 1982, ICJ Reports 1984, 246, para. 213. 29 Case Concerning Delimitation of the Maritime Boundary between Guinea and Guinea Bissau, Award of 14 February 1985, International Law Review 77, 635, paras. 108–111. 30 ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports 2007, 659, para. 272 and para. 287.

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As each maritime delimitation case is unique, an appropriate delimitation method should be chosen in light of the particular circumstances of the case. It should also be borne in mind that the ultimate goal is to arrive at an equitable solution required under Articles 74 and 83 UNCLOS regarding the delimitation of the EEZ and the continental shelf.

VI. New Challenges under the UNCLOS There are also certain questions that are dealt with in the UNCLOS but still require efforts for the implementation of the provisions concerned, for example, issues concerning payments and contributions with respect to the exploitation of the continental shelf beyond 200 nm. On the other hand, there exist matters that were not discussed at the UNCLOS III and, as a result, are not dealt with explicitly in the UNCLOS, for instance, the bunkering of foreign vessels fishing in the EEZ of a coastal State, a practice which developed after the adoption of the UNCLOS. On 14 April 2014, the ITLOS delivered its judgment in the M/V “Virginia G” Case. The dispute concerns the M/V “Virginia G,” an oil tanker flying the flag of Panama, arrested in August 2009 by the authorities of Guinea-Bissau for carrying out bunkering (refueling) activities for foreign vessels fishing in Guinea-Bissau’s EEZ. Guinea-Bissau later confiscated the gas oil carried on board the M/V “Virginia G.” This action by Guinea-Bissau was also one of the main points of disagreement between the parties to the dispute. Panama contended in particular that the arrest and detention of the M/V “Virginia G” and the confiscation of its cargo of gas oil by Guinea-Bissau had violated Panama’s right and that of its vessel to enjoy freedom of navigation and other internationally lawful uses of the sea recognised in Article 58 (1) UNCLOS. Panama asked Guinea-Bissau to return the confiscated gas oil or pay adequate compensation and to pay in favour of Panama, the M/V “Virginia G,” her owners, crew, and all persons and entities with an interest in the vessel’s operations compensation for damages and losses caused as a result of the violations by Guinea-Bissau of various provisions of the UNCLOS. For its part, Guinea-Bissau argued that it had not violated the right of Panama and the vessels flying her flag to enjoy freedom of navigation and other

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internationally lawful uses of the sea, as provided for in Article 58 (1) UNCLOS, and Guinea-Bissau’s laws could be applied for the purpose of controlling bunkering of fishing vessels in its EEZ. With respect to the confiscated gas oil, Guinea-Bissau contended that it had no obligation to return the gas oil or to pay any compensation for it. In its judgment of 14 April 2014, the ITLOS expressed the view that the regulation by a coastal State of bunkering of foreign vessels fishing in its exclusive economic zone is among those measures which the coastal State may take in its exclusive economic zone to conserve and manage its living resources under Article 56 of the Convention, read together with article 62, paragraph 4, of the Convention

and noted that “[t]his view is also confirmed by State practice which has developed after the adoption of the Convention.”31 Therefore, the ITLOS found that GuineaBissau had not violated Panama’s right in terms of Article 58 (1) and Article 56 (2) UNCLOS by regulating bunkering of foreign vessels fishing in the EEZ of GuineaBissau. While finding that by boarding, inspecting, and arresting the M/V “Virginia G,” Guinea-Bissau had not violated Article 73 (1) UNCLOS, the ITLOS did find that Guinea-Bissau had violated this provision by confiscating the M/V “Virginia G”32 and the gas oil on board and therefore decided to award Panama compensation for the confiscation of the gas oil.33

VII. Law of the Sea beyond the UNCLOS As mentioned above, the bunkering of foreign vessels fishing in the EEZ of a coastal State, a practice developed after the adoption of the UNCLOS, is one of the matters that was not discussed at the UNCLOS III and, as a result, are not explicitly provided for in the UNCLOS. Although bunkering is one activity which was not

31 ITLOS, The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment of 14 April 2014, para. 17, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment/ C19-Judgment_14.04.14_corr.pdf (accessed on 13 February 2015). 32

The vessel had been released by Guinea-Bissau before the M/V “Virginia G” Case was brought to the ITLOS. 33

ITLOS, M/V “Virginia G” (note 31), para. 452.

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foreseen at the time of the UNCLOS III, this issue was found to fall within the scope of the interpretation or application of the UNCLOS. On the other hand, other kinds of challenges may arise in the future which cannot be resolved alone through the interpretation or application of the UNCLOS as it now stands. Issues in the law of the sea may emerge which are not covered even implicitly by the provisions of the UNCLOS and require new international legislation. The matter of marine living resources found in areas outside national jurisdiction may include such issues. In this regard, attention should be drawn to the recommendations made recently by the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (Ad Hoc Informal Working Group).34 The Ad Hoc Informal Working Group refers, inter alia, to the commitment set out in paragraph 162 of the outcome document of the United Nations Conference on Sustainable Development, held in Rio de Janeiro in June 2012, entitled “The future we want,” as endorsed by the UNGA,35 as well as to the request of the UNGA to the Ad Hoc Informal Working Group to make recommendations on the scope, parameters, and feasibility of an international instrument under the Convention. The Ad Hoc Informal Working Group recommends to the UNGA, in particular, that it decide to develop an international legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

34 The recommendations are part of the Outcome of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction and Co-Chairs’s Summary of Discussions, available at: http://www. un.org/depts/los/biodiversityworkinggroup/documents/ahwg-9_report.pdf (accessed on 13 February 2015). 35 GA Res. 66/288 of 27 July 2012 endorsed the outcome document of the United Nations Conference on Sustainable Development, entitled “The future we want,” annexed to this resolution. Para. 162 of the outcome document reads as follows: “We recognize the importance of the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction. We note the ongoing work under the auspices of the General Assembly of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. Building on the work of the Ad Hoc Open-ended Informal Working Group and before the end of the sixty-ninth session of the General Assembly, we commit to address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the Convention on the Law of the Sea”.

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To this end, the Ad Hoc Informal Working Group recommends that prior to holding an intergovernmental conference, the UNGA should establish a preparatory committee to make substantive recommendations to the UNGA on the elements of a draft text of an international legally binding instrument under the UNCLOS, the preparatory committee is to start its work in 2016 and shall report to the UNGA by the end of 2017 on its progress. The Ad Hoc Informal Working Group further recommends that the UNGA decide, before the end of its 72nd session (namely by September 2018), taking into account the aforementioned report of the preparatory committee, on the convening and on the starting date of an intergovernmental conference under the auspices of the UN, to consider the recommendations of the preparatory committee on the elements and to elaborate on the text of an international legally binding instrument under the UNCLOS.

VIII. Conclusion The drafters and negotiators of the UNCLOS wisely devised an institutional framework entrusted with the task of interpreting or implementing the provisions of the UNCLOS. This is in addition to setting out legal norms in the UNCLOS to govern a wide range of law of the sea matters. As mentioned above, the ITLOS settles disputes concerning the interpretation or application of the UNCLOS and gives advisory opinions to clarify the meaning of its provisions. The CLCS examines the information submitted by coastal States on the limits of their continental shelf beyond 200 nm and makes recommendations to the coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the continental shelf established by coastal States on the basis of these recommendations are final and binding. Thus, the CLCS contributes to the application of the provisions concerning the limits of the continental shelf beyond 200 nm. The ISA also contributes to the implementation of the provisions of the UNCLOS by managing the activities of exploration for and exploitation of the mineral resources of the Area. The UNCLOS provides that “all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.” Through their differ-

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ent functions, which are complimentary to each other, these three institutions ensure the coherent and efficient implementation of the provisions of the UNCLOS. With the help of the above institutional framework created by the UNCLOS and thanks to the continued contribution of the ICJ and of the arbitral procedures provided for in the UNCLOS to the settlement of disputes, the UNCLOS will be able to address new challenges of the 21st century. State practice and the functions of the international institutions existing since before the adoption of the UNCLOS such as the UN and the Specialized Agencies, will also continue to facilitate the implementation of the provisions of the UNCLOS so that it will be able to address such challenges. The UNCLOS still has sufficient flexibility to address many new challenges. Nevertheless, if the UNCLOS faces new problems which cannot be resolved through the interpretation or application of its provisions by States and these institutions including those created by the UNCLOS, legislative action of the international community would be called for in order to adopt new rules governing such problems.

The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges BING BING JIA(

ABSTRACT: For long, customary law has held firm control over maritime issues of international importance, but the advent of UNCLOS III raises the question as to the extent to which customary law can keep a reserved domain. It is proposed to examine two narrow issues revolving around the principle that ‘the land dominates the sea’ (Principle of Domination). The basic submission is that this principle is a general principle of international law, developed by way of customary law and judicial decisions. As part of customary law, it always parallels the system established under the UNCLOS, and interplays with the latter in, among others, mixed disputes, namely, disputes that involve the interpretation or application of a mix of substantive rules of the law of the sea and other branches of public international law. The conclusion is that, within the law of the sea, the Principle of Domination means not a complete transposition of coastal sovereignty to the adjacent areas of sea. Its impact is thus much weakened by another general principle of the law of the sea, namely, the freedom of the high seas. But the existence of the principle in customary law can restrict the scope of applicability of the UNCLOS and, consequently, the jurisdiction of such tribunals as referred to in Article 287 UNCLOS. This article suggests, however, that mixed disputes may still be decided by those tribunals in a certain way. KEYWORDS: Principle of Domination, Innocent Passage, Continental Shelf, Sovereign Rights, Mixed Disputes, Huangyan Island (Scarborough Shoal), Article 298 (1)(a)(i) UNCLOS, Article 293 UNCLOS

I. Introduction The law of the sea, as a staple branch of public international law, has been in the ascendance during the past two decades and, given its intensive use in today’s world, will continue to hog headlines around the world for the foreseeable future. Suffice it (

Professor of International Law, Law School, Tsinghua University, Beijing, China. This paper represents only the personal view of this author.

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to say that, with perhaps the exception of the heyday of the Third United Nations Conference on the Law of the Sea (UNCLOS III), there has never been a better moment in the history of the modern law of the sea for international lawyers to ply their trade in this field. That is said with the history of the discipline in mind since, for long, it had been an area where customary international law had held firm control over all maritime issues. The advent of UNCLOS III raises the question as to the extent to which customary law can keep a reserved domain for itself, and the degree to which customary law and the product of the Conference in the form of the United Nations Convention on the Law of the Sea (UNCLOS)1 interplay in cases where some aspects of the disputes in question are not regulated by the Convention. As Morgenthau once observed, “the main bulk of the concepts and principles of international law has been derived from municipal civil law,” and those concepts and principles are embedded in extraordinarily stable interests of a municipal legal system in which they flourish and mature.2 He then identified “the classical field of traditional international law” that had developed since the 16th century, “originating in the permanent interests of states,” among which there were the “wide fields of maritime law.”3 Stability has been the prominent characteristic of the modern law of the sea in peacetime until, not without some irony, UNCLOS III produced the “Constitution for the Oceans” in 1982.4 The initial phase following the entry into force of the Convention has been smooth. But, with the increasing awareness among States parties to the UNCLOS of the usefulness of various regimes laid down in the Convention, the dawn of the 21st century has been awakened to a flurry of submissions by the States parties to claim the portion of the continental shelf that extends beyond 200 nautical miles (nm) measured from the baselines for the territorial sea.5 The receding 1

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 2

Hans J. Morgenthau, Positivism, Functionalism, and International Law, American Journal of International Law (AJIL) 34 (1940), 260, 278–279. 3

Ibid., 279.

4

Tommy T. B. Koh, A Constitution for the Oceans, in: United Nations (ed.), The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (1983), xxxiii. See also UN Office of Legal Affairs (OLA), United Nations Convention on the Law of the Sea at Thirty: Reflections (2013). 5 Commission on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, 12 April 2002, CLCS/32, paras. 5 and 10 (the Russian Federation was the first State party to present its submission to

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of the Arctic ice due to an increasingly warm atmosphere has opened up new prospects for seafarers in the once-forbidden zone for navigation.6 In parallel, claims to maritime entitlements have stirred emotions in areas of sea previously tranquil and calm, such as those contained in the Philippine notification for arbitration under Annex VII UNCLOS with regard to the South China Sea and transmitted to China as its intended adversary in January 2013.7 Then, in May 2013, the lawlessness of illegal, unregulated, and unreported fishing activities, having festered for some time, prompted the Sub-Regional Fishery Commission in West Africa to seek an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS), bringing into focus the extent of the power of this specialised tribunal of international law.8 There are other developments in this field with States seeking solutions from under the constitutional order of the UNCLOS. Reference is made to the threat to, and destruction of, marine bio-systems and to the fledgling business of the exploitation of resources in the Area.9 The challenges faced by the law of the sea, and especially the rules of the UNCLOS, are palpable, multiplying, incisive, and urgent. It is against this multi-faceted new reality that this article is developed by looking retrospectively at the journey that the modern law of the sea has covered and the responses this body of law has conjured up in meeting the needs of States to conthe Commission on 20 December 2001). Also see Galo Carrera, The Commission on the Limits of the Continental Shelf, in: UN OLA (note 4), 5. Mr Galo Carrera, in his capacity as the Chairperson of the Commission, estimated that, eventually, the number of submissions on the limits of the continental shelf would approach 120(!). 6 Arctic Council, Arctic Marine Shipping Assessment 2009 Report, available at: http://pame.is/ images/03_Projects/AMSA/AMSA_2009_report/AMSA_2009_Report_2nd_print.pdf (accessed on 2 February 2015). See also Bing Bing Jia, The Northwest Passage: An Artificial Waterway Subject to a Bilateral Treaty Regime?, Ocean Development and International Law (ODIL) 44 (2013), 123. 7

Note Verbale No. 13-0211 from the Department of Foreign Affairs of the Republic of the Philippines to the Embassy of the People’s Republic of China in Manila, 22 January 2013, available at: https:// www.dfa.gov.ph/index.php/component/docman/doc_download/56-notification-and-statement-ofclaim-on-west-philippine-sea?Itemid=546 (accessed on 29 January 2015). See also Stefan Talmon/Bing Bing Jia, The South China Sea Arbitration: A Chinese Perspective (2014). 8 International Tribunal for the Law of the Sea (ITLOS), Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, available at: http://www.itlos.org/index.php?id=252&L= 1AND1%253D1 (accessed on 29 January 2015). 9 E.g. Helmut Tuerk, Austria, in: UN OLA (note 4), 20; and Kari Hakapää, Finland, in: UN OLA (note 4), 37; Allotey Odunton, The International Seabed Authority, in: UN OLA (note 4), 3 (in his capacity as Secretary-General of the Authority, he mentioned a total of seventeen contracts in the Area, concluded by the end of 2013).

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stantly achieve an equilibrium of conflicting and evolving national interests in the oceans. It may be observed that, to its credit, the law has been remarkably adaptable and resilient in testing times of international affairs. Such adaptability and resilience will only enhance its perceived objectivity and authority and encourage its acceptance by all members of the international society. One day perhaps, the UNCLOS will emulate the example of the Charter of the United Nations10 to attain a genuine constitutional status in this world. Due to limited space, it is not proposed to deal with even the most salient points of controversy, past and present, in the law of the sea but to examine two narrow issues revolving around the principle that ‘the land dominates the sea’ (Principle of Domination).11 The basic submission of this article is that this principle is a general principle of law, developed by way of customary law and judicial decisions. It can be paraphrased as the domination of the territorial status and regime of the coast over the legal status and regime of the adjacent sea, including, where appropriate, the subjacent sea-bed and subsoil. While underpinning the law of the sea from the very beginning, it has taken on renewed importance after the UNCLOS entered into force in 1994. As part of customary law, it always parallels the system established under the Convention and interplays with the latter in, among others, mixed disputes, namely disputes that involve the interpretation or application of a mix of substantive rules of the law of the sea and other branches of public international law. The parallel is implicitly acknowledged in the preamble of the UNCLOS with reference to matters unregulated by the Convention and its Article 76 (1). Needless to say, the full implications of this interplay between a general principle of the law of the sea and a treaty can only be known after they clash in a concrete dispute.12 This article will highlight the way in which the law of the sea reacts to changes in State practice as engendered by the advancement of the knowledge and technology of 10

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

11

Cf. some of the references in Barbara Kwiatkowska, Decisions of the World Court Relevant to the UN Convention on the Law of the Sea: A Reference Guide (2002), 2–3. 12

There was an interesting argument by Ambassador Pardo of Malta in his monumental speech in 1967 that “the vastest land masses” could be dominated from the sea, which could in turn be dominated from the sea floor, if technology were to be invested to allow physical occupation and military use of large areas of the seabed beyond the continental shelf, UN GAOR, 22nd Session, First Committee, 1515th Meeting, 1 November 1967, UN Doc. A/C.1/PV.1515 (1967), para. 47. The speech spanned two sessions of the First Committee during the day.

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humankind. The distinct and yet entirely reasonable Principle of Domination was given the judicial imprimatur in 1969 by none other than the International Court of Justice (ICJ) on the cusp of the commencement of the monumental UNCLOS III. From hindsight, while it is natural for the Court to proclaim this principle on the basis of its own experience, that principle may not be helpful in widening the jurisdiction of tribunals as defined in Part XV Section 2 UNCLOS. The dominance of the land over the adjacent sea-belt begs practical questions to which State practice has yet to respond definitively. As has been said above, only two questions will be explored here. One is the true effect of the principle in the adjacent sea area. The other is the fascinating relationship between the principle and the UNCLOS’s system of compulsory jurisdiction. This article is divided into five sections. First, the Principle of Domination has made a much earlier manifestation in connection with the fundamental question of the law of the sea: the extent of the territorial sea. The determination of the extent has been accompanied by the establishment of other zones of control and function. However, the nature of the territorial sea is obviously different from that of the other zones. Is it because the dominance of the land over the sea is lessened in proportion to the distance of areas of sea from the coast? Secondly, the principle is considered as settled in the jurisprudence of the ICJ. But what has the Court said of it and in which context? Thirdly, the true value of the principle becomes clear in its application to, among others, the notion of the continental shelf. Full sovereignty does not apply to the seabed beyond the 12 nm limit for the territorial sea. In other words, coastal sovereignty, full-fledged over the land territory up to the 12 nm limit, has been reduced to a few sovereign rights. Fourthly, it appears that the efficacy of an important part of the law of the sea, namely the part regarding the entitlement to, and delimitation of, maritime zones, relies to a considerable extent upon another branch of international law, i.e. the one relating to the acquisition of territorial sovereignty (over the land concerned). If so, does the threshold of the applicability of the law of the sea, including the UNCLOS, stop at the point where the land meets the sea, with the consequence that the jurisdiction of relevant tribunals over such maritime disputes as those covered by, or related to, the UNCLOS would be confined to the seaward side of that point? This may be

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a situation undesirable as seen from one angle but inevitable from another since, within the law of the sea, there is little room for rules of territorial acquisition, except for specific provisions on the territorial sea and archipelagic waters. Lastly, a word of conclusion will be given. Although the preceding points for discussion appear to be selective, they cling to a common thread in, and indeed the perennial cause for, the development of the law of the sea, that the law rests always upon a balance between the freedom of the seas on the one hand and national interests in the control of the seas, including subjacent sea-bed and subsoil, on the other (i.e. the Principle of Domination).

II. The Principle and the Genesis of the Modern Law of the Sea The modern law of the sea for peacetime had not taken on a codified form until the 1958 Geneva Conventions13 were adopted.14 The prominent feature of the pre1958 era was the general acceptance of the rule that the coastal State could claim control over a continuous belt of sea that ran along its coastline, whether or not the coastline was lined with batteries of artillery. Indeed, even in the time of Grotius, it was recognised that a portion of the great seas of the world could be acquired “as belonging to a territory” “in so far as those who sail in that part of the sea can be compelled from the shore as if they were on land.”15 It was a nod to claims to a dominium maris. While relevant rules of customary law could not be pinpointed as to their formative moment, as they moved from the cannon-shot rule and the one-league rule to a 3 nm limit between the 16th and 18th centuries,16 the existence of the basic principles of the freedom of the high seas and of protection within waters adjacent to the coast had already been recognised by the time the North Atlantic Coast Fisheries 13 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, UNTS 516, 205; Convention on the High Seas, 29 April 1958, UNTS 450, 11; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, UNTS 559, 285; Convention on the Continental Shelf, 29 April 1958, UNTS 499, 311. 14

Robin Churchill/Vaughan Lowe, The Law of the Sea (3rd ed. 1999), 13–15.

15

Hugo Grotius, De Jure Belli ac Pacis (1625), lib. II, cap. III, s. xiii, 2, cited in: Phillip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 5. 16 H. Kent, The Historical Origins of the Three-Mile Limit, AJIL 48 (1954), 537, 548–550, 552; Daniel O’Connell, The International Law of the Sea, vVl. I (ed. by Ivan Shearer 1982), 124–151.

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arbitration between Great Britain and the United States was concluded in 1910.17 The Arbitral Tribunal stated that: The old rule of the cannon-shot, crystallized into the present three marine miles measured from low water mark, may be modified at a later period inasmuch as certain nations claim wider jurisdiction […]. There is an obvious reason for that. The marginal strip of territorial waters based originally on the cannon-shot, was founded on the necessity of the riparian State to protect itself from outward attack, by providing something in the nature of an insulating zone, which very reasonably should be extended with the accrued possibility of offense due to the wider range of modern ordnance.18

The statement was reflective of the Principle of Domination. The widening capability for offence by warships or coastal batteries, however, has never ceased growing in subsequent times. Partly because of that, there had never been a generally accepted width for the territorial sea between 1910 and 1982. In addition, it may be recalled that the Arbitral Tribunal in Grisbadarna referred to the fundamental principles of the law of nations, “tant ancien que moderne,” according to which “le territoire maritime est un dépendance nécessaire d’un territoire terrestre.”19 When the 1958 Convention on the Territorial Sea and the Contiguous Zone was adopted, the negotiating States could not settle on a width for the territorial sea one way or another. Article 1 of the Convention only recognised that the sovereignty of the coastal State extended beyond its land territory and internal waters “to a belt of sea adjacent to its coast, described as the territorial sea.” That sovereignty, in addition, extended to the air space above the territorial sea as well as its bed and subsoil. The anxiety over coastal sovereignty and jurisdiction creeping beyond 3 nm from the baselines had soon reached a climax in 1967 when the international community was aroused into action by the prospect that the deep sea and the ocean bottoms might be grabbed and held by States for strategic and military purposes.20 17

See the US representative Root’s arguments in the arbitration, quoted in Jessup (note 15), 5. North Atlantic Coast Fisheries Case (Great Britain, United States), Arbitral Award of 7 September 1910, Reports of International Arbitral Awards (RIAA) XI, 167, 205. 18

North Atlantic Coast Fisheries Case (note 17), 205.

19

Grisbadarna Case (Norway, Sweden), Arbitral Award of 23 October 1909, RIAA XI, 155, 159.

20

H. Shirley Amerasinghe, The Third United Nations Conference on the Law of the Sea, in: Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. I (1985), 1, 3–4. See also Shigeru Oda, New Trends in the Regime of the Seas: A Consideration of the Problems of Conservation and Sharing of Marine Resources, in: id. (ed.), Fifty Years of the Law of the Sea (2003), 45, 47–80.

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One of the main achievements of UNCLOS III is a maximum limit for the territorial sea, as laid down in Article 3 UNCLOS. The article provides that “[e]very State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” The legal status of this belt of sea has also inherited the version as contained in the 1958 Convention on the Territorial Sea. The customary status of this width has clearly been established.21 Although the so-called ‘territorialist’ States remain as a group, insisting on a wider territorial sea up to 200 nm,22 there is no denying the powerful pull of the UNCLOS in harmonising State practice in this regard.23 It may be observed that even in the territorial sea, the domination of the coastal State is limited in comparison with its absolute sovereignty over the land hemmed in by its coast. Reference is made to, among others, the regime of innocent passage in this belt of sea. There is a customary right of innocent passage available to foreign shipping, as recognised in Article 17 UNCLOS. The article provides: “Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.” Thus, in an area of sea over which the coastal State has sovereignty in accordance with international law, the sovereignty is not absolute by reason of the limits set by the same body of law. The declaratory nature of Article 17 UNCLOS is unmistakable from its wording. This fact may place the Principle of Domination in perspective insomuch as its practical effect is concerned.

21 See UN OLA, Table of Claims to Maritime Jurisdiction, available at: http://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf (accessed on 17 January 2015). While the table is unofficial, and updated as of 15 July 2011, some 136 States, including non-parties to the UNCLOS (e.g. the US), adopted the 12 nm limit for the territorial sea. See also ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports 2012, 624, para. 177. 22

Cf. Janusz Symonides, Poland, in: UN OLA (note 4), 90; Myron Nordquist/Satya N. Nandan/ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 75, 79. 23

Many supporters of the 200 nm territorial sea have given up on that notion in favour of the territorial sea limit established by the UNCLOS: Francisco Orrego Vicuña, Trends and Issues in the Law of the Sea as Applied in Latin America, ODIL 26 (1995), 93, 94 (as of the time of publication of that paper, fifteen of 22 Latin American States had adopted the 12 nm limit, including five that had rolled back their previous claims to the 200 nm limits. The five States were Argentina, Brazil, Nicaragua, Panama, and Uruguay. The current group of supporters for the 200 nm limit includes Benin, Ecuador, El Salvador, Peru, and Somalia: cf. UN OLA (note 21).

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Without dwelling on this piece of well-known history,24 attention is switched to the exposition of the principle by the ICJ since 1969. It is to be seen below that the Principle of Domination has a decreasing effect upon legal regimes of the sea when the distance from the coast increases.

III. The Principle in the ICJ Jurisprudence It seems that the first time this principle made an appearance before the ICJ was in the Anglo-Norwegian Fisheries case, decided in 1951.25 During the proceedings, the British reply stated that: It is the configuration of the land, whether a continuous line of land or consisting of broken island fringes, that may bring areas of sea within the territory of a State. In law, it is the tendency of the land or lands to enclose the sea that gives relevance to the geographical facts.26

Counsel for the UK, the late Sir Humphrey Waldock, argued during the oral proceedings that: [I]t is in the law of coastal waters alone that the applicable principles must be found. We say that, under general international law, the principle is that maritime territory is accessory to the land […]. It follows – we contend – from that principle that the maritime belt in principle extends from the limit of the land which the law defines as the low-tide mark along the coast.27

In reference to “the close dependence of the territorial sea upon the land domain,” the ICJ stated in its judgment that “it is the land which confers upon the coastal State a right to the waters off its coasts.”28 That statement seemingly harked back to what was stated in the Grisbadarna arbitral award, as quoted above. 24

Nandan/Rosenne (note 22), 75–82.

25

ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116. 26

Id., Fisheries Case (United Kingdom v. Norway), UK’s Reply of 28 November 1950, Pleadings, Oral Arguments, Documents, vol. II, 291, 660, para. 488; see also para. 492. 27 Id., Fisheries Case (United Kingdom v. Norway), Reply by Professor Waldock of 18 October 1951, Pleadings, Oral Arguments, Documents, vol. IV, 394, 397–398. See also Humphrey Waldock, The Anglo-Norwegian Fisheries Case, British Yearbook of International Law (BYIL) 28 (1951), 114, 148. 28

ICJ, Fisheries Case, UK’s Reply (note 26), 133.

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In Minquiers and Ecrehos, the French government contrasted its own position based on this principle and the opposing view of the British government it portrayed as based on Selden’s doctrine of mare clausum.29 In the celebrated North Sea Continental Shelf Cases in 1969, the ICJ stated, in a more comprehensive way, that: The doctrine of the continental shelf is a recent instance of encroachment on maritime expanses which, during the greater part of history, appertained to no-one. The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. This is one of the reasons why the Court does not consider that markedly pronounced configurations can be ignored; for, since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. Above all is this the case when what is involved is no longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal régime of the continental shelf is that of a soil and a subsoil, two words evocative of the land and not of the sea.30

This statement was made in the course of the Court’s deliberation of which factors might be considered by the parties to the cases in search for a solution to the dispute of delimitation pending between them. In its words, “it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable.”31 For that purpose, the Court went on to state that: [T]here is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.32

29

Id., The Minquiers and Ecrehos Case (United Kingdom/France), Pleading of Professor Gros of 28 September 1953, Pleadings, Oral Arguments, Documents, vol. II, 190, 200 (“La revendication du Gouvernement de la République est au contraire fondée sur la prédominance de la terre sur la mer”). 30 Id., North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 96. See also Pardo (note 12), para. 57. 31

ICJ, North Sea Continental Shelf Cases (note 30), para. 92.

32

Ibid., para. 93.

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Among the three factors considered by the Court in light of the preceding statement was the Principle of Domination. By the judgment, the principle in question already had an enlarged scope in respect of the possession or control by the coastal State of adjacent areas of sea and the attendant sea-bed and subsoil.33 Before moving further, it may be added that the principle was first mentioned in the case by the Netherlands in its counter-memorial, submitted to the Court on 20 February 1968.34 The relevant part of the submission reads as follows: [T]he Federal Republic’s alleged principle of the “just and equitable share” and […] its proposed “sectoral division” of part of the North Sea […] are in total conflict with the established principles and rules of international law governing the delimitation of maritime areas. Thus, they misconceive the very nature and the operation of these principles and rules, which are based upon the doctrine “la terre domine la mer” and not vice versa. The rules of international law in this sphere take the coast as their starting point, and not the – in any case imaginary – middle of the sea.35

It may be further added that this doctrine was also mentioned by Professor Riphagen of the Netherlands in his rejoinder during oral proceedings on 7 November 1968.36 The Court would repeat this principle in subsequent cases of maritime delimitation. In 1978, the Court held that: [I]t is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law. In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State. It follows that the territorial régime – the territorial status – of a coastal State comprises, ipso jure, the rights of explora33

Ibid., Dissenting Opinion of Vice-President Koretsky, 155, 159 (“Although Bracton might have considered the sea coast ‘quasi maris accessoria,’ which was historically understandable, not only the territorial sea but also the continental shelf may now be considered as ‘accessories’ of or, in the words of the Judgment in the Fisheries case, as ‘appurtenant to the land territory’”). 34

Id., North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Counter-Memorial submitted by the Government of the Kingdom of the Netherlands of 20 February 1968, available at: www.icj-cij.org/docket/files/52/9339.pdf (accessed on 27 February 2014). 35 36

Ibid., para. 166.

Id., North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Rejoinder of Professor Riphagen of 7 November 1968, 212, 222, available at: www.icj-cij.org/docket/files/52/9359.pdf (accessed on 15 March 2014) (“the accepted concept that la terre domine la mer rather than the other way round”).

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tion and exploitation over the continental shelf to which it is entitled under international law.37

There was no ambiguity in the statement, and the rights pertaining to the continental shelf were derivative of the sovereignty of the coastal State over the coast. The principle was invoked for the purpose of establishing the link between the notion of the continental shelf and the territorial status of Greece and would have allowed the Court to assume jurisdiction over this dispute but for the reliance placed by Turkey, on the basis of reciprocity, upon the Greek reservation (b) to the 1928 General Act for Pacific Settlement of International Disputes.38 In 1982, the ICJ stated that “the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it.”39 But the word ‘title’ may be conducive to some mild confusion,40 unless it is understood merely as the causal or foundational fact or act to enjoy specific rights over submarine areas adjacent to the coast. In other words, it has no resemblance to a full complement of sovereign rights that come with the control of a land territory by a State. In 2002, the Court gave the principle a broader scope of application by stating that: In previous cases the Court has made clear that maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as “the land dominates the sea” […]. It is thus the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State. In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law, islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory.41

This is not the end of the story, though. In 2009, in yet another maritime delimitation case, the Court reiterated this principle in the following statement: “The title of a State to the continental shelf and to the exclusive economic zone is based on the 37

Id., Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction, Judgment of 19 December 1978, ICJ Reports 1978, 3, para. 86. 38

Ibid., para. 90.

39

Id., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, 61, para. 73. 40 41

Ian Brownlie, Principles of Public International Law (7th ed. 2008), 119.

ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports 2001, 40, para. 185.

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principle that the land dominates the sea through the projection of the coasts or the coastal fronts.”42 In the light of the preceding pronouncements, it is reasonable to assume that the Court has not considered the principle as only applicable to the adjacent seabed off the coast but to all maritime zones generated from the coast. It must be considered a settled principle of law following this line of authorities. Additionally, the consistency of the Court’s view is beyond doubt that the territorial sovereignty of the coastal State must be the starting point for determining the maritime rights to which the State is entitled under international law, whether the rights appertain to the continental shelf or else. This point is significant for the second issue to be discussed below. States, and especially those involved in maritime disputes, tend to accept this principle in guiding their action. In the run-up to the Philippine notification of 22 January 2013 to initiate arbitration with China under Annex VII UNCLOS, the two governments had outlined their respective positions with reference to the principle. In the note verbale of 5 April 2011,43 the Philippine government declared that: [T]he Philippines, under the Roman notion of dominium maris and the international law principle of “la terre domine la mer” which states that the land dominates the sea, necessarily exercises sovereignty and jurisdiction over the waters around or adjacent to each relevant geological feature in the KIG as provided for under the United Nations Convention on the Law of the Sea (UNCLOS).

On 14 April 2011, the Chinese government responded in a note verbale,44 that: Since [the] 1970s, the Republic of Philippines started to invade and occupy some islands and reefs of China’s Nansha Islands and made relevant territorial claims, to which China objects strongly. The Republic of Philippines’ occupation of some islands and reefs of China’s Nansha Islands as well as other related acts constitutes infringement upon China’s territorial sovereignty. Under the legal doctrine of “ex injuria jus non oritur,” the Republic of Philippines can in no way invoke such illegal occupation to support its territorial claims. Furthermore, under the legal principle of “la terre domine la mer,” coastal states’ Exclusive

42 Id., Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61, para. 77. 43 The Philippines’ Note Verbale No. 000228, 5 April 2011, available at: http://www.un.org/Depts/ los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf (accessed on 17 January 2015). 44

Chinese Note Verbale CML/ 8/2011, 14 April 2011, available at: http://www.un.org/Depts/los/ clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf (accessed on 17 January 2015).

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Economic Zone (EEZ) and Continental Shelf Claims shall not infringe upon the territorial sovereignty of other states.

One point deserves attention of this statement. Any claim by the Philippines to maritime zones in the South China Sea cannot rely on its occupation of the islands or insular features therein without running foul of the rule of jus cogens of non-use of force to effect changes of territorial status.45 That unlawfulness will undermine any claim based on the Principle of Domination. However, the application of the Principle of Domination is not without questions, some of which may not have been fully anticipated when the UNCLOS was adopted in 1982.

IV. The Principle’s Influence on the Notion of the Continental Shelf The notion of the continental shelf does not reflect a dominant relationship between the land and its adjacent sea-belt, together with the subjacent seabed and subsoil. The current regime of the continental shelf seemingly operates independently of the principle. Due to Article 76 UNCLOS and several cases of maritime delimitation decided before the ICJ, the practice in this area has developed to effectively sidestep the Principle of Domination, by ridding itself of the element of natural prolongation, especially where the shelf lies within 200 nm from the baselines for measuring the territorial sea. It may be observed that, even at the beginning of the regime, there was a generally accepted reduction in number of sovereign rights of the coastal State in the shelf. The land concerned under the principle extends seawards and merges with the seabed far and away. But the sovereign rights over the appurtenant seabed and subsoil are much fewer than those over the land. The figurative characteristic of the principle does not give a full account of the difference between its content and the reality in which it is thought to be operating. Moreover, it has no effect upon the water column above the shelf. 45

Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV) of 24 October 1970: “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal”.

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As to the relevance of the Principle of Domination to the notion of natural prolongation, reference is made to what the Court stated in the Aegean Sea Continental Shelf case: The question for decision is whether the present dispute is one “relating to the territorial status of Greece”, not whether the rights in dispute are legally to be considered as “territorial” rights; and a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status. The reason is that legally a coastal State’s rights over the continental shelf are both appurtenant to and directly derived from the State’s sovereignty over the territory abutting on that continental shelf. This emerges clearly from the emphasis placed by the Court in the North Sea Continental Shelf cases on “natural prolongation” of the land as a criterion for determining the extent of a coastal State’s entitlement to continental shelf as against other States abutting on the same continental shelf […]. As the Court explained in the above-mentioned cases, the continental shelf is a legal concept in which “the principle is applied that the land dominates the sea”.46

The statement just quoted shows that the Court was careful as to the nature of the rights involved in a continental shelf dispute. But importantly, it placed renewed emphasis on the criterion of natural prolongation which, in its view, reflected the Principle of Domination. So much for the emphasis. Later decisions of the Court, however, have chiselled away at the role of the criterion. It is suspected that the principle underpinning it may become peripheral in the course of this development. The preceding concern will be tested by brief reference to practice. The emergence of the notion of the continental shelf has a recent past.47 The Truman Proclamation of 28 September 1945 stated that:48 [T]he Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.

In the preamble of the proclamation, it was stated that “the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally 46

ICJ, Aegean Sea Continental Shelf (note 37), para. 86.

47

The appellation of ‘continental shelf’ was first used by a geographer in 1898: see Petroleum Dev (Trucial Coast) Ltd. v. Sheikh of Abu Dhabi, Award of 28 August 1951, reprinted in: International and Comparative Law Quarterly (ICLQ) 1 (1952), 247, per Umpire Lord Asquith, quoted in: Marjorie Whiteman, Digest of International Law 4 (1965), 747. 48 Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf, XIII Dept. of State Bulletin, No. 327, 30 September 1945, 485.

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appurtenant to it,” and that “these resources frequently form a seaward extension of a pool or deposit lying within the territory.”49 All this laid the foundation on which the International Law Commission prepared the draft treaties for the 1958 Geneva Conference on the Law of the Sea (UNCLOS I). The rights provided for under the 1958 Convention on the Continental Shelf were clearly linked to the exploration and exploitation of the natural resources in the continental shelf. It may be recalled that that linkage did not contradict but in fact fell within the purview of the reference in the Truman Proclamation of 1945 to “control and jurisdiction.” One reading of the reference was that it was no more than another expression of a claim to sovereignty by the US over the adjacent, submarine areas.50 In other words, the expression “sovereign rights” in the 1958 Convention on the Continental Shelf could have signified sovereignty.51 That sovereignty, however, would be subject to the restrictions imposed by the Convention in that it was confined to the exploitation of the resources in the shelf and that it could not affect the legal status of the water column above the seabed, nor the airspace above the water.52 That regime in the 1958 Convention on the Continental Shelf might not have fully reflected State practice outside the UNCLOS I, which largely laid claim to sovereignty over the continental shelf, rather than some rights that would fall short of it or only appertain to some activities on the shelf.53 In the light of those circumstances, it would be even more understandable that a limit to the continental shelf be set precisely and quickly because, unchecked, national exercise of jurisdiction and control

49

Ibid.

50

Hersch Lauterpacht, Sovereignty over Submarine Areas, BYIL 27 (1950), 381, 390.

51

It may be recalled that, in his dissenting opinion in the North Sea Continental Shelf Cases in 1969, Judge Tanaka still stated that “the continental shelf belongs exclusively to the coastal State according to the principle fixed by law which gives the definition of the continental shelf,” ICJ, North Sea Continental Shelf Cases (note 30), 180. Indeed, this concern with the nature of the expansion of coastal State powers over the seabed and subsoil was the cause for Malta to take the lead, in 1967, in advocating the establishment of “some form of international jurisdiction and control over the sea-bed and the ocean floor underlying the seas beyond the limits of present national jurisdiction,” Pardo (note 12), para. 6. 52 53

Art. 3 1958 Convention on the Continental Shelf.

Lauterpacht (note 50), 390–391. Malta saw as much of this trend in State practice: Pardo (note 12), paras. 68–70, 90 (“Current international law encourages the appropriation of this vast area by those who have the technical competence to exploit it”, and by “this vast area” it was meant to signify “the sea-bed and the ocean floor” that occupied nearly 75% of the land area of the earth).

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over the shelf could eventually intrude upon the international seabed area that would later become the ‘common heritage of mankind’ under Article 136 UNCLOS.54 The efforts by States before and in 1958 in forging the notion of the continental shelf had subsequently inspired the ICJ to state one of the important principles of the regime. In its 1969 judgment in the North Sea Continental Shelf Cases, the ICJ, in regard to “the most fundamental of all the rules of law relating to” the continental shelf, held that:55 [T]he rights the coastal State has in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso jure and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.

Later, in paragraph 96 of the judgment, the Court mentioned the Principle of Domination.56 In another part of the judgment, the Court also held that: What confers the ipso jure title which international law attributes to the coastal States in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, – in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea.57

No explanation was given as to why the extended part of the land territory lost the full complement of sovereign rights. In any case, reliance may be placed upon the 1958 Convention on the Continental Shelf itself for the curtailment of those rights. The Convention, it must be added, reflected post-1945 State practice which, triggered by the Truman Proclamation, had quickly coalesced into customary law.58 Throughout its sessions, UNCLOS III had witnessed a rather uniform support among negotiating States for the notion of natural prolongation.59 The UNCLOS 54

ICJ, Continental Shelf (note 39), Dissenting Opinion of Judge Jiménez de Aréchaga, 61, 123.

55

Id., North Sea Continental Shelf Cases (note 30), para. 19.

56

See supra, III.

57

ICJ, North Sea Continental Shelf Cases (note 30), para. 43.

58

Pardo (note 12), para. 59 (Ambassador Pardo noted the general acquiescence of the then international community in the US position). 59 UNCLOS III, Working Paper, UN Doc. A/CONF.62/L.4 (1974), Art. 19, para. 2 (Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand, and Norway); US proposal of 1975, in: Nordquist/Nandan/Rosenne (note 20), 848; the Evensen Group’s proposal of 1975, ibid., 849; the

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duly includes it in the juridical definition of the continental shelf. Article 76 (1) UNCLOS states: The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

There is, therefore, every reason to believe that the Principle of Domination remains alive in the constitutional order of the UNCLOS. But there has been a parallel development outside the UNCLOS that may derail this principle. Symptomatic of this development is the ICJ’s judgment in the 1985 Libya/Malta case.60 During the proceedings, Libya maintained that, under Article 76 UNCLOS, only the reference to natural prolongation represented customary law, whereas Malta argued that the article consecrated the distance principle.61 The Court stated that:62 This is not to suggest that the idea of natural prolongation is now superceded by that of distance. What it does mean is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation, which in spite of its physical origins has throughout its history become more and more a complex and juridical concept, is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. The concepts of natural prolongation and distance are therefore not opposed but complementary; and both remain essential elements in the juridical concept of the continental shelf.

The impact of the Court’s finding has been such that there has since been the tendency of ignoring all other considerations within the 200 nm limit in the great majority of post-1985 cases involving the delimitation of the continental shelf.63 It

proposal by the Arab Group (1978), ibid., 859; UNCLOS III, Informal Single Negotiating Text, UN Doc. A/CONF.62/WP.8/Part II (1975), Art. 62; UNCLOS III, Informal Composite Negotiating Text, UN Doc. A/CONF.62/WP.10 (1977), Art. 76. 60

ICJ, Continental Shelf (Libya/Malta), Judgment of 3 June 1985, ICJ Reports 1985, 13.

61

Ibid., para. 34.

62

Ibid.

63

Jonathan Charney, International Maritime Boundaries for the Continental Shelf: The Relevance of Natural Prolongation, in: Nisuke Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda, vol. II (2002), 1011, 1025.

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has led one writer to saying that the 1985 case “marked a significant turning point,” as “[n]atural prolongation in a physical sense, for all practical purposes, was dead.”64 It may be asked whether the Principle of Domination retains vitality after this. It is submitted that it does, regardless. As the Court has since declared, Article 76 (1) UNCLOS reflects customary law:65 The Court notes that Colombia is not a State party to UNCLOS and that, therefore, the law applicable in the case is customary international law. The Court considers that the definition of the continental shelf set out in Article 76, paragraph 1, of UNCLOS forms part of customary international law. At this stage, in view of the fact that the Court’s task is limited to the examination of whether it is in a position to carry out a continental shelf delimitation as requested by Nicaragua, it does not need to decide whether other provisions of Article 76 of UNCLOS form part of customary international law.

There is therefore no difficulty to treat the element of natural prolongation in this provision as part of customary law, too. It follows that the element will retain a separate being in future practice. As it reflects the Principle of Domination, the latter has become entrenched and reaffirmed in the UNCLOS accordingly. However, the recognition of the principle in the UNCLOS is not wholesale, and in any case, there is no question of a subsumption of the principle into the Convention. What will be considered next is the case in which the principle, from its existence outside the Convention, produces a restrictive effect upon the jurisdiction of those tribunals referred to in Article 287 UNCLOS over disputes concerning the interpretation or application of the Convention.

V. The Scope of the UNCLOS and the Principle The second issue arising with the Principle of Domination concerns the effect of its application upon the scope of the UNCLOS and, consequently, the jurisdiction of those tribunals referred to in Article 287 UNCLOS. Can they deal with territorial disputes? The principle itself, as seen by the Court in the North Sea Continental Shelf Cases, does not so much suggest a duopoly of the law of the land territory and the law 64

David Colson, The Delimitation of the Outer Continental Shelf between Neighbouring States, AJIL 97 (2003), 91, 101. 65

ICJ, Territorial and Maritime Dispute (note 21), para. 118.

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of the sea as a coherency of the two bodies of law.66 If so, to what extent the two laws are necessarily related in practice?67 This heading is chiefly concerned with the issue of mixed disputes, in which territorial disputes over maritime features are joined with claims to maritime zones and disputes of delimitation. At first sight, this issue appears to be pertinent only to those tribunals in the exercise of such jurisdiction as laid down in the UNCLOS. It does not necessarily arise in courts or tribunals entitled to operate under a parallel head of jurisdiction. The ICJ, for instance, may not be bound to restrain its jurisdiction because of this limitation of the UNCLOS if the case at bar is submitted to it in accordance with its Statute or a special agreement between the parties to the case.68 But when a dispute is submitted to the Court by a State party to the UNCLOS having made a declaration under Article 287 UNCLOS, choosing the Court for the purpose of the article, the Court will have to confine its jurisdiction over the dispute to that part concerning the interpretation or application of the UNCLOS. For its jurisdiction is ultimately defined by Article 288 (1) UNCLOS, which confirms that the Court, in this case, shall have jurisdiction over the relevant part of the dispute. This reasoning of course applies where the whole dispute is concerned with the interpretation or application of the UNCLOS. The ICJ, like other tribunals under Article 287 UNCLOS, has additional jurisdiction over other international agreements under Article 288 (2) UNCLOS. The Statute of the ITLOS69 has broadened the scope of the jurisdiction of the Tribunal in a similar fashion, with Article 21 Annex VI UNCLOS stipulating that “[t]he jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” The condition of “in accordance with this Convention” must be read as confining the jurisdiction of the 66 There is support in academic writings: cf. Julia Litztwan, Stability for Maritime Boundary Agreements, Yale Journal of International Law 37 (2012), 153, 169. 67 Some suggest an international marketable title as the common denominator for these two bodies of law: Lea Brilmayer/Natalie Klein, Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator, New York University Journal of International Law and Politics 33 (2000–2001) 703, 749 and 767. 68

Art. 38 Statute of the International Court of Justice opens with the words “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it.” There is no restriction on the types of dispute that may be submitted to the Court or on the formulation of the disputes so submitted. Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355. 69

Statute of the International Tribunal for the Law of the Sea, Annex 6 to the UNCLOS, 10 December 1982, UNTS 1833, 561.

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ITLOS over “disputes” to those concerning the interpretation or application of the Convention. Let’s return to this point later. A former President of the ICJ has made the remark that “many maritime delimitation cases require the Court to decide, as a preliminary step, questions of sovereignty over disputed islands or certain coastal regions of land territory.”70 In Qatar v. Bahrain the Court indeed expressed that “[i]t is thus the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State.”71 As was shown above, that finding followed from the recall by the Court of the Principle of Domination. The Court made the statement in the course of determining the sovereignty over certain islands, so that relevant coasts of the parties might be ascertained for measuring the breadth of the territorial sea.72 It is noted that the case was brought before the Court in respect of territorial and maritime disputes between the parties by way of standing bilateral agreements.73 Can this finding be applicable to a court or tribunal operating under Article 288 UNCLOS?74 The significance of this inquiry is that, if the answer to the above question is in the affirmative, judicial bodies other than the ICJ may find a wider jurisdiction for peaceful settlement of disputes with a maritime dimension. Otherwise, mixed disputes may have to be left aside by them due to a lack of jurisdiction. The heading is to be considered from two angles. On the one hand, it is thought that the relevance of Article 298 (1)(a)(i) UNCLOS to the Principle of Domination is rather limited because it is part of an optional course open only to the States parties.75 Whether it limits the jurisdiction of the tribunals referred to in Article 287

70

Shi Jiuyong, Maritime Delimitation in the Jurisprudence of the International Court of Justice, Chinese Journal of International Law 9 (2010), 271, 275. 71

ICJ, Maritime Delimitation and Territorial Questions (note 41), para. 185.

72

Ibid., para. 184.

73

Id., Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, 112, para. 41. 74

Art. 288 (1) UNCLOS provides: “A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part”. 75

Cf. Declarations of States Parties relating to Settlement of Disputes in Accordance with Article 298 (Optional Exceptions to the Applicability of Part XV, Section 2, of the Convention), available at: http://www.itlos.org/fileadmin/itlos/documents/basic_texts/298_declarations_June_2011_english. pdf (accessed on 17 January 2015), displaying 33 declarations made under Art. 298 UNCLOS.

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UNCLOS may bring into play the provision of Article 288 (4) UNCLOS.76 On the other hand, the general lack of jurisdiction ratione materiae of UNCLOS over disputes of territorial sovereignty may provide the Principle of Domination with a more comprehensive role in limiting the jurisdiction of the tribunals under Article 287 UNCLOS.77 For where a territorial dispute is part of the subject-matter of a maritime dispute relating to delimitation, the former must be resolved before the latter can be considered. Where a tribunal seized of the maritime dispute relies on the UNCLOS for its jurisdiction, it will find itself unable to bypass the territorial dispute in question, for which the UNCLOS has no applicable rule. In that sense, the maritime dispute is dominated by the territorial dispute, with the consequence that the jurisdiction of the tribunal is subordinated to the jurisdiction from another source that can cover and settle the territorial dispute. But the aforementioned first angle will be considered, on the ground that it is a meaningful issue for those States parties that have filed an Article 298 UNCLOS declaration with regard to the disputes of delimitation or involving historic bays or title. Article 298 (1)(a) UNCLOS provides as follows: When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission.

76 Art. 288 (4) UNCLOS states that “[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal”. 77 Myron Nordquist/Satya N. Nandan/Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V (1989), 88, para. 297.1 (referring to Ambassador Galindo Pohl’s statement at the second session of the conference in 1974, that there was need to exclude from obligatory jurisdiction “questions directly related to the territorial integrity of States”).

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The quoted part of the article raises two points. First, the article as a whole is an optional clause. States parties are free to decide to make an exclusionary declaration or otherwise. If they do not, the disputes listed thereunder are not excluded from the compulsory procedures set forth in Part XV Section 2 UNCLOS. Secondly, Article 298 (1)(a)(i) UNCLOS allows not only the exclusion of maritime delimitation disputes but also of those concerning territorial status of maritime features, namely, historic bays or other areas or features subject to historic title. That clause, therefore, allows the exclusion of two types of dispute from Section 2. It is the latter type of dispute that bears upon our discussion of the Principle of Domination. Since the notion of ‘historic title’ is not defined in the UNCLOS, it is accepted for present purposes that it could mean a title to sovereignty over a maritime feature, among other interpretations. The basic presumption of this section is that, if a dispute mixes aspects of territorial acquisition (by way of historic title) and maritime entitlement (as a prerequisite to delimitation), an exclusionary declaration tabled under Article 298 (1)(a)(i) UNCLOS will exclude the dispute altogether from the reach of Part XV Section 2 UNCLOS. There is, accordingly, no residual dispute for the compulsory procedures in Part XV Section 2 UNCLOS to deal with. There is, furthermore, no need to consider whether the dispute is chiefly about delimitation or historic bays or titles. The only condition before the exclusionary effect is triggered is that the dispute involves, to whatever degree, delimitation according to Articles 15, 74, and 83 UNCLOS, or historic bays or titles. If so, the dispute falls within the scope of an Article 298 (1)(a)(i) UNCLOS declaration. But what happens to a State party that has not filed a declaration under Article 298 (1)(a)(i) UNCLOS? Opinions differ,78 and this article offers yet an alternative view. Article 298 UNCLOS is an optional restriction of the jurisdiction of the Article 287 UNCLOS tribunals, and it reflects the Principle of Domination only to the 78

P. Chandrasekhara Rao, Delimitation Disputes under the United Nations Convention on the Law of the Sea: Settlement Procedures, in: Tafsir Malick Ndiaye/Rüdiger Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes (2007), 877, 887–892; Irina Buga, Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma of Law of the Sea Tribunals, International Journal of Marine and Coastal Law 27 (2012), 59, 68–72. Contra: Louis B. Sohn, Peaceful Settlement of Disputes in Ocean Conflicts: Does UNCLOS III Point the Way? Law and Contemporary Problems 46 (1983), 195, 198; Paul C. Irwin, Settlement of Maritime Boundary Disputes: An Analysis of the Law of the Sea Negotiations, ODIL 8 (1980), 105, 114–115; Bernard Oxman, The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980), AJIL 75 (1981), 211, 233.

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extent of historic bays or titles. But that principle can certainly assume a more fundamental role in restricting the jurisdiction of those tribunals. It can indeed exclude the applicability of the UNCLOS altogether before the issue of territorial sovereignty is determined in a given case. If the tribunals under Article 287 UNCLOS cannot decide such an issue, they may have to relinquish jurisdiction over the dispute, including the maritime claims. The fundamental role played by the Principle of Domination is therefore that, if States parties without Article 298 UNCLOS declarations seek to avoid the compulsory procedures of Part XV Section 2 UNCLOS, recourse may be had to the principle in arguing that, since the UNCLOS is generally silent on matters of territorial acquisition, with a couple of exceptions, a mixed dispute will be excluded from those procedures. This is particularly true when the mixed dispute clearly involves a component concerning territorial sovereignty as the prerequisite both to the determination of the extent of maritime entitlement and to any subsequent delimitation. For the sovereignty over a maritime feature in dispute is always critical for the resolution of a maritime delimitation dispute. If it belongs to a certain State party, maritime entitlement and maritime delimitation will ensue, naturally. In view of the division of opinions in this regard, this article aligns with the better representation of the general position taken by the negotiating States during UNCLOS III, as indicated in some of the writings.79 In addition, the preamble of the UNCLOS affirms that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The intention for that reserve must be that, as the UNCLOS cannot cover all rules and practices in international law, customary law on related subject-matters will come to the aid of those States parties who find themselves in a void of law in maritime disputes. A good example of the regulatory gaps in the UNCLOS is that of the illegal, unreported, unregulated fishing activities on the high seas or in the exclusive economic zone. While the UNCLOS includes provisions that may be taken as relevant to the control of such activities, it does not include direct measures that tackle them full on. Some States parties to the UNCLOS, like the Member States of the Sub-Regional Fisheries

79 Oxman (note 78), 211, footnote 109 (as Chair of the English Language Group of the Conference Drafting Committee at UNCLOS III, his words carry weight for ascertaining the true intention of the negotiating States on this point that “[t]he Convention does not deal with questions of sovereignty or other rights over continental or insular land territory-questions that can hardly be regarded as incidental or ancillary”).

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Commission, may have found the Convention not very handy in their situation so that they resort to other instruments to deal with them.80 In comparison with this gap in relation to certain fishery activities, which is a quintessential matter of the law of the sea, the gap in respect of acquisition of territorial sovereignty is even more likely, or indeed natural, to exist in the UNCLOS. But this logic does not compel any argument that tribunals under Part XV Section 2 UNCLOS must therefore possess jurisdiction over the aspect of relevant disputes relating to territorial acquisition. There is no such inevitability. Apart from the preceding reference to the general intent of the negotiating States at UNCLOS III, there is another reason for this. Jurisdiction is granted under the UNCLOS, as in other treaties, within specified limits. The limits are determined by the purposes and objects of the treaty in question, to which the States parties have given their consent. Indeed, the lack of substantive rules of territorial sovereignty in the Convention determines that there be a corresponding lack of jurisdiction on the part of the Article 287 UNCLOS-linked tribunals over territorial disputes.81 These latter disputes must be deemed to be unrelated to the interpretation or application of the UNCLOS. A truncated jurisdiction as such is not abnormal but a necessary concession, in the present context, for the whole Section 2 to be adopted at UNCLOS III. If the ICJ receives an application from a State party to the UNCLOS on the basis of the latter’s declaration under Article 287 UNCLOS, it is in the same jurisdictional straitjacket, so to speak, as other tribunals under that article. There is no differential treatment among those Article 287 UNCLOS tribunals. The coherency of the law of the land and that of the sea, 80 Cf. Technical Note, submitted by the Permanent Secretariat of the Sub-Regional Commission to the ITLOS in March 2013 in Case No. 21, available at: http://www.itlos.org/fileadmin/itlos/documents/ cases/case_no.21/Technical_Note_eng.pdf (accessed 17 January 2015). The Note explains that “the 2001 International Plan of Action to Prevent, Deter and Eliminate IUU Fishing and the 2009 Port State Measures Agreement include important provisions aimed at reinforcing the powers of the coastal State in the fight against IUU fishing. These legal instruments, especially the 2009 Agreement, are binding on the SRFC Member States and are helpful to these countries, whose fragile economies suffer serious damage from IUU fishing. These instruments bring major innovations to classic international law […]. Accordingly, it is particularly useful for the SRFC Member States to know precisely what their rights and obligations are in this connection, especially the newly created rights and obligations”. (6) The reasons for the Secretariat to bring the matter before the ITLOS, therefore, had first to do with some international instruments other than the UNCLOS. 81

Cf. Alan Boyle, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction, ICLQ 46 (1997), 37, 49–50.

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broached at the start of this section in reference to the Court’s view in the North Sea Continental Shelf Cases, becomes, eventually, a duopoly under the current rules of the UNCLOS. It is the innate set-up of the Convention that results in this deficit in jurisdiction for the tribunals. The preceding discussion may be put to test in a concrete case, that of Huangyan Island, to which both China and the Philippines claim sovereignty. Can it be claimed, as the Philippines does,82 that the whole dispute over this feature is reduced to a matter of maritime entitlement, in addition to a partial consideration of the legal status of the feature under Article 121 UNCLOS? Or should it be maintained, as China has claimed, that the UNCLOS “is not the legal basis to determine the territorial sovereignty of the Huangyan Island and cannot change the fact that the island belongs to China?”83 It is interesting to note that the Philippine Notification and Statement of Claim does not say anything on the lack of provisions in the UNCLOS on territorial sovereignty. It does, however, concede that both China and the Philippines claim sovereignty over Huangyan Island.84 The Philippines also suggest that the maritime zone allegedly claimed by China around the island has somehow encroached upon the Philippine continental shelf and the exclusive economic zone measured from Luzon and Palawan.85 It is not clear whether the Philippine counsel are prepared to recognise Chinese sovereignty over this feature by arguing that the island is entitled to only a 12 nm territorial sea. In any case, the sea-bed within that limit is also a part of the continental shelf naturally prolonging seawards from the coast, as a close reading of Article 76 (1) UNCLOS will so reveal. Consequently, there is, by necessity, a stage of delimitation of the continental shelf involved in this dispute between China and the Philippines, among other things. The whole dispute regarding Huangyan Island is thus composed of, at minimum, three components: 1) territorial sovereignty; 2) mari82 Note Verbale No. 13-0211 (note 7), para. 31: “Scarborough Shoal […] are submerged features that are below sea level at high tide, except that each has small protrusions that remain above water at high tide, which qualify as ‘rocks’ under Article 121 (3) of the Convention, and generate an entitlement only to a Territorial Sea no broader than 12 M; and China has unlawfully claimed maritime entitlements beyond 12 M from these features”. 83 Ministry of Foreign Affairs, People’s Republic of China, Foreign Ministry Spokesperson Hong Lei’s Remarks on Philippine President’s Speaking of the Huangyan Island Incident in His State of the Nation Address, 25 July 2012, available via: www.fmprc.gov.cn (accessed on 15 February 2014). 84

Note Verbale No. 13-0211 (note 7), para. 20.

85

Ibid., para. 24.

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time entitlement; and 3) maritime delimitation under Article 83 UNCLOS. Two points suggest themselves. First, it would be unlikely to serve the purpose of Annex VII UNCLOS procedures if the arbitral tribunal in this case defined the whole dispute in terms only of the second component, as mentioned above. For that will solve nothing substantial of the whole dispute. It is clear that entitlement is meaningless if it does not pertain to a specific coast, i.e. the coast of a certain State. The dispute, like others claimed by the Philippines with regard to the South China Sea in the pending arbitration case, has always been perceived by China and the Philippines, as well as other littoral States of the South China Sea, as comprising two layers: one of territorial disputes and the other of maritime delimitation. In the Declaration on the Conduct of the Parties in the South China Sea, dated 4 November 2002, Point 4 stated that: The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.86

In a joint press statement between China and the Philippines, issued on 3 September 2004 during the State visit of China by Philippine President Macapagal-Arroyo, it was stated that: The two sides reaffirmed their commitment to the peace and stability in the South China Sea and their readiness to continue discussions to study cooperative activities like joint development pending the comprehensive and final settlement of territorial disputes and overlapping maritime claims in the area. They agreed to promote the peaceful settlement of disputes in accordance with universally-recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea. They agreed that the early and vigorous implementation of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea will pave the way for the transformation of the South China Sea into an area of cooperation.87 86

Declaration on the Conduct of the Parties in the South China Sea, available at: http://www. asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-southchina-sea (accessed on 17 January 2015) (emphasis added). Signed by the foreign ministers of the ten Member States of the Association of Southeast Asian Nations and of China. 87 Chinese Foreign Ministry, Joint Press Statement of the Government of the People’s Republic of China and the Government of the Republic of the Philippines, 3 September 2004, available via: www. fmprc.gov.cn (accessed on 24 February 2014) (emphasis added).

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Second, it is recalled that the ICJ has been consistent in respect of the principle, quoted at length in section III, above. In mixed disputes, the Court always takes the territorial status of the coast as the starting point in the determination of maritime rights in contention. The Court’s statement in the Aegean Sea Continental Shelf case between Greece and Turkey is resounding: In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State. It follows that the territorial régime – the territorial status – of a coastal State comprises, ipso jure, the rights of exploration and exploitation over the continental shelf to which it is entitled under international law.88

The legal rights in the continental shelf are an inherent part of the legal regime of the coastal land from the edge of which the shelf is projected seawards. Any case involving overlapping continental shelf areas will fall squarely under the Court’s logic. Moreover, the matter of entitlement can only follow after a determination of the relevant coast and the relevant baselines, which in turn depends on which State possesses sovereignty over the coast in question.89 Without a coast defined by reference to a specific State, there is no practical sense in talking solely of a hypothetical scenario concerning a maritime feature’s entitlement. Such entitlement is laid down in international law anyway, and there is no dispute on that front. As for the generator of the entitlement in this case, the Philippines claims that: “[U]ntil April 2012, Philippine fishing vessels routinely fished in this area […]. Since then, China has prevented the Philippines from fishing at Scarborough Shoal or its vicinity.”90 It may be wondered what would follow if all the preventive action complained of took place within the 12 nm limit of the island – which is very much in the ‘vicinity’ of the feature. It may be added that, under the UNCLOS, even a rock in terms of Article 121 (3) UNCLOS is an island under both the Convention and customary law,91 and that the way baselines are drawn around an atoll could add a further dimension

88

ICJ, Aegean Sea Continental Shelf Case (note 37), para. 86.

89

Ibid., para. 186.

90

Note Verbale No. 13-0211 (note 7), para. 21.

91

ICJ, Territorial and Maritime Dispute (note 21), paras. 37 and 183.

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to the equation.92 More details of the complaint are required before a meaningful examination is made of the claim of the Philippines. In this light, the separation of the sovereignty issue and the delimitation aspect from the issue of maritime entitlement of Huangyan Island is not only artificial, but overlooks the inherent link between sovereignty, entitlement, and delimitation. To resolve a dispute of this complexity in this manner may not be conducive to a permanent settlement. As has been said above in relation to Article 298 (1)(a) UNCLOS, once a mixed dispute involves any of the exclusionary elements mentioned in the provision, it is excluded completely from the compulsory procedures of Part XV Section 2 UNCLOS if a State party has made a declaration in accordance with Article 298 (1) UNCLOS. China filed just such a declaration on 25 August 2006.93 But supposing China did not make that declaration, it would still be entitled to rely on the Principle of Domination by pointing out that the dispute, with its aspect of territorial sovereignty in contention, cannot be resolved completely without determining the locus of that sovereignty. This point, it may be stressed, is not a matter concerning the interpretation or application of the UNCLOS. A related issue in this regard is the role of Article 293 (1) UNCLOS. Can it attract the jurisdiction of the courts or tribunals mentioned in Article 287 UNCLOS? If so, the jurisdiction of those bodies could be widened. It is submitted that it cannot. Article 293 (1) UNCLOS runs as follows: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.” The function of this provision is clear. It defines the sources of law open to the Article 287 UNCLOS-linked tribunals. However, it is plain that sources of law and sources of jurisdiction must be distinguished. Jurisdiction, being the power to deal with certain kinds of cases by a court or tribunal, is vested by way of explicit provisions of a constituent treaty or statute for such a 92

Art. 6 UNCLOS on ‘reefs’ provides that “[i]n the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward lowwater line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State”. 93

UN OLA, Law of the Sea Bulletin 62 (2006), 14. It reads: “The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention”.

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body. The treaty or statute, in contrast, only lists the sources of law, leaving the content of applicable law to the judgment and expertise of the members of the court or tribunal. Within the framework of the constituent treaty or statute, the content of applicable law rests on a secondary, derivative level, in comparison with the primary level on which jurisdiction resides. Relying on such as Article 293 (1) UNCLOS to found the jurisdiction of the Article 287 UNCLOS tribunals would be, at maximum, itself a dispute concerning the interpretation or application of UNCLOS. However, it is felt that the court or tribunal will not lightly assume that such a dispute exists, given the availability of clear rules under Article 288 UNCLOS. Although the UNCLOS is silent on substantive rules of territorial acquisition, except for those of the territorial sea and archipelagic waters, it does point to a possible solution in respect of mixed disputes, whereby they may be decided by the ITLOS and the arbitral tribunals. Article 288 (2) UNCLOS states that: A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.

Article 21 Annex VI UNCLOS recognises a similar competence of the ITLOS. This type of competence does not cover disputes concerning the interpretation or application of the UNCLOS but those of the international agreement in question. A mixed dispute may accordingly be brought before these tribunals by way of an agreement between the parties to the dispute, ad hoc or otherwise. In that situation, Article 293 UNCLOS can be applied. But the jurisdiction is conferred by a separate agreement, not Article 293 UNCLOS. As for an Annex VII tribunal, there is no provision similar to Article 21 Annex VI UNCLOS. It shall therefore rely on such agreements as referred to in Article 288 (2) UNCLOS to deal with mixed disputes.

VI. Conclusion The conclusion is that, within the law of the sea, the Principle of Domination means not a complete transposition of coastal sovereignty to the adjacent areas of sea, but only of some out of the full complement of sovereign rights of a State over its territory. Its impact is much weakened by another general principle of the law of the sea, namely, the freedom of the high seas, which has over the ages exerted a restraining

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effect upon the expansion of national sovereignty in the oceans, including the superjacent air space and subjacent sea-bed and subsoil. In the balance thus achieved between freedom and control, the rule of law in the world’s oceans is generally assured. The power of the coastal State is considerably limited over the adjacent sea, not because it cannot dominate it physically, but because the law of the sea prevents that domination from becoming full-blown. The principle has therefore served useful purposes in the development of the modern law of the sea and has been affirmed implicitly in Article 76 (1) UNCLOS. The respect for the principle as shown under Article 298 (1)(a)(i) UNCLOS is partial in scope and optional in nature. But the parallel existence of the principle in customary law, however, is more impressive in practical consequences in that it can restrict the scope of applicability of UNCLOS and, consequently, the jurisdiction of such tribunals as referred to in Article 287 UNCLOS and relevant annexes of the UNCLOS to disputes concerning the interpretation or application of the Convention and such agreements as recognised under Article 288 (2) UNCLOS and the annexes. The principle as such is more than anything else a principle of general international law and not restricted to the law of the sea. It delineates the border between the law of the land and the law of the sea. It places the former before the latter in terms of precedence. It goes without saying that such mixed disputes as discussed in this article cannot be satisfactorily resolved without deciding all their aspects, top among which is the issue of territorial sovereignty of maritime features involved in these disputes. This article suggests that mixed disputes may still be decided by those tribunals mentioned in Article 287 UNCLOS in a certain way, even though the general lack of jurisdiction ratione materiae of the UNCLOS over issues of territorial sovereignty will again thrust the consensual requirement to the fore of international maritime affairs before the compulsory procedures of Part XV Section 2 UNCLOS may be initiated due to such provisions as Article 288 (2), Article 299,94 and Article 21 Annex VI UNCLOS. Article 299 UNCLOS, for instance, allows a State party armed with an Article 298 (1) UNCLOS declaration to enjoy the additional benefit of exempting itself from the purview of Part XV Section 2 UNCLOS by withholding consent to any further agreement between itself and the other party to a dispute. 94 Article 299 (1) UNCLOS provides that “[a] dispute excluded under article 297 or excepted by a declaration made under article 298 from the dispute settlement procedures provided for in section 2 may be submitted to such procedures only by agreement of the parties to the dispute”.

Evolution of the Law of the Sea from an Institutional Perspective RÜDIGER WOLFRUM(

ABSTRACT: The progressive development of international law can occur in a variety of ways. With specific reference to the law of the sea, this contribution analyses three different methods which instigate the evolution of new norms. First, norm-making through negotiations is examined, with particular emphasis placed on the negotiated UNCLOS implementation agreements and the development of supplementary law of the sea norms at the national level. Next, the norm-making functions of international organisations are considered, specifically concerning the promulgated regulations of the International Seabed Authority and the quasi-norm-making ability of the International Maritime Organisation. Finally, the normmaking capacity of international courts and tribunals is discussed in some detail. Particular attention is paid to the problems posed by the ITLOS in this regard, since it is occasionally required by the UNCLOS to go beyond the mere interpretation of pre-existing norms in order to provide equitable solutions to specific situations. The examination of these three instances of norm development in the context of the law of the sea serves to elucidate the progressive evolution of international legal norms generally. KEYWORDS: Law of the Sea, International Lawmaking, International Courts and Tribunals, International Organisations, International Treaties, Delimitation

I. Introduction To speak about ‘evolution’ of international law means several things; it may mean negotiating new rules (by new international treaties on law of the sea matters or implementation agreements such as the Straddling Fish Stocks Agreement1) or it may (

Judge at the International Tribunal for the Law of the Sea (ITLOS), Hamburg. The views expressed are the ones of the author and may not reflect the views of other members of the ITLOS. The author wishes to thank Mr John Dingfelder-Stone for his valuable assistance in finalising the text. 1

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, UNTS 2167, 3 (Straddling Fish Stocks Agreement).

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mean the development of soft law instruments which either affect the interpretation of already existing hard law or may evolve into hard law at a later stage. The evolution of new norms may be set in motion and realised in universal or regional negotiations, in universal or regional international organisations, or by the practice of States which has developed into customary international law. Also international courts and tribunals are to be mentioned in this respect since they, as will be shown, contribute to the evolution of the law of the sea. The latter aspect requires dealing with an issue which in general, at least in the most recent past, has been dealt with intensively, in particular under the headline of whether international courts and tribunals enjoy de iure or de facto norm-making or, in other words, legislative powers.2 This contribution will deal with the issue of norm-making through international negotiations first and shall then address the norm-making functions of international organisations, universal as well as regional ones. Thereafter the contribution will deal with the norm-making functions of international courts or tribunals. However, before doing so, some clarifying words on the notion of ‘norm-making’ are called for. As will be demonstrated in this contribution, the 1982 UN Convention on the Law of the Sea (UNCLOS)3 establishes a particularly complex system on norm-making which sets it apart from public international law in general. Not only the institutions established under the Convention contribute to the development of norms governing activities at sea but also States parties acting either on the international or the national level albeit under the umbrella of the Convention. It is also for this reason that the Convention is referred to as the ‘constitution of the oceans.’

II. Norm-Making If interpreted in a strict sense, norm-making means the power to establish legal norms which are binding in general or in respect of a particular constituency. As far as public international law in general is concerned, such binding norms are established through international treaties, customary international law, binding decisions of inter2 See in particular Armin von Bogdandy/Ingo Venzke (eds.), International Judicial Lawmaking (2012), 4, footnote 2, referring to the literature considering the “creation and stabilization of normative expectations” as the core function of law. 3

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 396 (UNCLOS).

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national organisations, and general principles of law.4 As far as the legal regime under the UNCLOS is concerned, the situation is somewhat more complex. Apart from the international norms referred to and which may be used by international courts and tribunals in accordance with Article 193 UNCLOS, Chapter XII of the Convention on the marine environment makes reference to internationally established standards and practices and its Chapter XI refers to Regulations of the International Seabed Authority (ISA). Both categories of standards and regulations constitute binding norms for the parties to the UNCLOS, although not established by the Convention itself but as secondary norms of the Convention thus being part of the law of the sea regime.5 It seems to be apparent that judgments of international courts and tribunals cannot belong to the same league. As is well known and is laid down in the statutes of the international courts and tribunals concerned,6 judgments are only binding upon parties to that particular dispute. They are theoretically not binding for other courts and tribunals and, lacking a stare decisis rule, not even for the court or tribunal which issued them. This positivistic answer, however, does not cover the relevance of international judgments for the development of international law fully. Nevertheless, it is mandatory to distinguish between norm-making and the interpretation of existing norms.

III. Norm-Making through Negotiations The Convention is meant to cover the law of the sea fully and requires a certain superiority vis-à-vis previous and subsequent international agreements covering this subject. This is provided for in Article 311 (1) UNCLOS in respect of the 1958 Geneva Conventions.7 This provision states that the UNCLOS prevails, as between the States parties to it, over the Geneva Conventions. Further, according to Article 311 (2) 4

Art. 38 (1)(a)–(c) Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute); see Alain Pellet, Article 38, in: Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed. 2012), paras. 172–264. 5

See infra, IV.

6

See e.g. Art. 59 ICJ Statute, Art. 33 (2) Annex VI UNCLOS.

7

Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, UNTS 516, 205; Convention on the High Seas, 29 April 1958, UNTS 450, 11; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, UNTS 559, 285; Convention on the Continental Shelf, 29 April 1958, UNTS 499, 311.

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UNCLOS the Convention shall not alter the rights and obligations of States parties which arise from other agreements compatible with the Convention. E contrario this means that rights and obligations arising from international agreements contrary to the UNCLOS and which violate the enjoyment of rights of other States parties or the performance of their obligations must yield to the Convention. Nevertheless, agreements between States parties may modify or suspend – inter partes – the operation of provisions of the Convention. This possibility only exists so far as such agreements are not incompatible with the object and purpose of the UNCLOS.8 Finally, amendments to the basic principle relating to the common heritage are ruled out.9 The latter falls short of declaring the common heritage principle as ius cogens. Apart from all these restrictions, the Convention relies to a certain extent on supplementary rules developed in negotiations. This is clearly expressed in Article 211 (1) UNCLOS which provides that norms against the pollution of the sea from ships shall be developed – amongst others – by general diplomatic conferences. It should be noted also that the procedure of amending the Convention10 or revising it is cumbersome and not likely to be implemented in practice. On the basis of these provisions it is possible to conclude that the UNCLOS attempts to establish a complete legal regime governing the oceans and that modifications to this regime on the basis of negotiations are only possible to the extent that they keep within the framework set by the Convention. This limitation is, however, not as stringent as it may sound. The UNCLOS is phrased in some of its parts – and in particular in parts which deal with economic activities or are devoted to the protection of the marine environment – in broad terms, which gives leeway to new and more specific rules. Apart from that it should be taken into account that the Convention in some instances – particularly in respect of the conservation and management of marine living resources or the exploration and exploitation of the continental shelf (within and beyond 200 nm) – entrusts coastal States with sovereign rights or jurisdiction which entails the competence to prescribe the necessary norms and to enforce them.11 In these cases the evolution of further rules takes place on the national rather than on the international level.

8

Art. 311 (3) UNCLOS.

9

Art. 311 (6) UNCLOS.

10

See Arts. 312–314 UNCLOS.

11

See e.g. Arts. 56, 60–67, 73 (1) UNCLOS and Arts. 77, 79 (3)–(4), 80, 81 UNCLOS.

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However, such national rules – as clearly indicated by Article 73 UNCLOS12 – are to be seen as rules supplementary to and within the framework of the Convention. Coastal States have used this competence also to develop regional or sub-regional agreements on the conservation and management of living resources.13 This development meets the objective of the Convention and is one indication of its framework character.14 In spite of that, since the adoption of the UNCLOS the necessity was felt to provide for a multilateral agreement covering certain aspects of deep seabed mining and on the management and conservation of marine living resources. This led to two so-called implementation agreements15 – a euphemism since these agreements constituted amendments of the Convention elaborated and adopted outside the framework for amendments. There is a movement for another implementation agreement covering genetic resources, an issue not foreseen during the negotiations of the UNCLOS. In this respect this possible third implementation agreement differs from the already existing two. Whereas the issues covered by the Implementation Agreement relating to Part XI UNCLOS had been discussed at the Third UN Conference on the Law of the Sea and the issue of straddling fish stocks and highly migratory stocks could have been discussed more deeply and decided upon in more detail, the relevance of marine genetic resources was fully realised only after the end of the Conference. The necessity to have recourse to implementation agreements proves that the rules on amendments are considered as being overly restrictive.

IV. Norm-Making through International Organisations Generally speaking, only few international organisations have the mandate to make legal norms.16 The UNCLOS establishes one international organisation with

12

Art. 73 (1) UNCLOS provides that coastal States may only implement laws and regulations adopted by the coastal State “in conformity with this Convention”. 13 On regional fisheries organisations, see e.g. David Freestone, Fisheries, Commissions and Organizations, EPIL IV (2012), 56, with further references as to competences and decision-making procedures. 14

Nele Matz-Lück, Framework Agreements, EPIL IV (2012), 220, para. 4.

15

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 28 July 1994, UNTS 1836, 3; Straddling Fish Stocks Agreement. 16

For details see José E. Alvarez, International Organizations as Law-Makers (2005).

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law-making functions – the International Seabed Authority17 – and entrusts another one – the International Maritime Organisation (IMO) – with functions which come close to law-making. The Seabed Authority has substantially elaborated the legal regime of the UNCLOS for deep seabed mining, for which the Convention only sets a framework. This framework approach was clearly seen as such and was agreed upon in the Conference.18 When the UNCLOS was adopted it was evident that the implications of deep seabed mining could not be anticipated in full. The main instruments of the ISA in that respect are its Regulations, which are meant to provide for a legal framework for the prospection, exploration, and exploitation of mineral resources of the area beyond national jurisdiction (the Area). It has been well-recognised from the outset that such a legal framework should implement the common heritage principle and thus should provide for a fair and equitable distribution of the benefits derived from the Area. It has been further acknowledged that the common heritage principle equally demands for the protection of the marine environment.19 The ISA’s Regulations currently comprise the Regulations on Prospecting and Exploration of Polymetallic Nodules in the Area (Nodules Regulations), the Regulations on Prospecting and Exploration of Polymetallic Sulphides in the Area (Sulphides Regulations), and, finally, the Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (Cobalt Crusts Regulations).20 In elaborating these Regulations the ISA had to honour three objectives all of them rooted in the common heritage principle, namely to provide for a sustainable mining system which serves the interests of producers and investors without prejudice to the interest of future generations in deep seabed mining, the protection of the marine environment against negative impacts of deep seabed

17

Arts. 137 (2), 146, 147 (2)(a), 151 (7) UNCLOS.

18

Rüdiger Wolfrum, Die Internationalisierung staatsfreier Räume: Die Entwicklung einer internationalen Verwaltung für Antarktis, Weltraum, Hohe See und Meeresboden (1984), 415 et seq., with further references. 19 Id., Common Heritage of Mankind, MPEPIL, paras. 9, 22, available via: http://www.mpepil.com (accessed on 4 November 2014). 20 ISA, The Law of the Sea: Compendium of Basic Documents (2001), 226, available at: http:// www.isa.org.jm/files/documents/EN/Pubs/LOS/index.html (accessed on 4 November 2014); see the analysis of Michael Lodge, International Seabed Authority’s Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, Journal of Energy and Natural Resources Law 20 (3) (2002), 270.

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mining and related activities, and to provide for a fair and equitable distribution of the benefits derived from deep seabed mining.21 Although these Regulations are quite similar in their structure they very clearly show the continuing progressive development of environmentally-guided international law as far as the Area is concerned. However, these Regulations should not be seen in isolation. They contribute, as already indicated, to the development of international environmental law and further clarify what is meant by sustainable development and management of resources. The ISA developed these Regulations taking into account the deliberations concerning the protection of the Antarctic environment against possible impacts of mining and research activities. These Regulations of the ISA are binding upon the States parties to the UNCLOS.22 It would have been a matter of consequence if they had been made directly binding upon private operators. This issue was intensively discussed but the view prevailed that international law was not directly binding upon private operators. Thus, the ISA lacks supranationality. The mechanism through which the Regulations are made binding upon private operators is their acceptance by potential operators when they apply for an exploration or exploitation contract (plan of work).23 It is the function of the ISA to monitor mining activities and in that respect it will have to rely on the cooperation with the sponsoring State. In case of a violation, it is the obligation of the Authority to take appropriate enforcement action. The sponsoring State, in turn, is obliged to establish the national legal regime necessary to implement the legal regime on deep seabed mining set up by the Authority. With regard to the proper format for achieving suitable implementation, both the UNCLOS and the Regulations remain silent, which means the sponsoring States have some discretion in that respect. The Advisory Opinion of the Seabed Disputes Chamber indicated, though, that this discretion is not without limits. Germany has selected a particular, and certainly very effective, system by providing that the Regulations issued by the ISA will become German national law by an executive order of the Minster for Economics. Further, under Article 139 UNCLOS the sponsoring State must ensure that the contractual obligations of a sponsored entity can be enforced in the sponsoring State 21

Wolfrum (note 19), paras. 16, 18–19.

22

Art. 153 (1), (5) UNCLOS.

23

See Art. 4 (6) Annex III UNCLOS.

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and that claims for damages may be brought against it before national courts. The Advisory Opinion of the Seabed Disputes Chamber has detailed these obligations.24 Also the IMO has acquired the competence to contribute to the evolution of legal norms although its competence does not reach the same level as that of the ISA. This is due to the difference in the origin of the two institutions. Whereas the ISA was established with the view to develop norms for deep seabed mining, the IMO was originally only meant to facilitate multilateral negotiations concerning shipping. By modifying the process for the coming into force of amendments to the International Convention for the Safety of Life at Sea (SOLAS Convention)25 – the tacit acceptance procedure – such amendments do not have to undergo the cumbersome ratification procedure. On this basis one may qualify the IMO’s competences as being of a quasi norm-making nature. This is demonstrated clearly by the efforts undertaken by the IMO concerning shipping in the Arctic. The IMO has been engaged in the development of rules for shipping in Polar waters for several years. The efforts resulted in the adoption of the Guidelines for Ships Operating in Polar Waters on 2 December 2009. These Guidelines26 are nonmandatory and deal with the construction of ships (including electronic equipment), fire arrangements, and rules on the operation of ships. They apply to ships operating in Antarctica, south of 60 degrees south latitude, and in the Arctic, mostly north of 60 degrees north latitude but including Greenland (not Iceland) and excluding the parts of Norway and Russia north of 60 degrees north latitude. The Guidelines serve as the basis for the ongoing negotiations of the Polar Code (Mandatory Code for Ships Operating in Polar Waters). The Code will apply, as the Guidelines, to the Arctic as well as to Antarctica and will supplement – not replace – existing international agreements such as SOLAS and the International Convention for the Prevention of Pollution from Ships (MARPOL)27. The scope of application is the same as the one of the Guidelines. 24

ITLOS, Responsibility and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10. 25 International Convention for the Safety of Life at Sea, 1 November 1974, UNTS 1183, 3 (SOLAS Convention). 26 27

IMO Res. A.1024(26) of 2 December 2009.

International Convention for the Prevention of Pollution from Ships, 2 November 1973, UNTS 1340, 184 (MARPOL).

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The Code regulates the required structure of ships which intend to navigate in the Polar Regions. The Draft also contains several rules concerning the machinery, on operational safety, protection against fire, life-saving appliances, safety of navigation, communication, and manning, including the training of the crew. Even measures for the protection of passengers are provided for. The Code will be adopted as amendments to SOLAS and MARPOL and shall enter into force after a given period of time for all States parties to these two agreements, unless, before that date, objections to the amendment are received from an agreed number of States parties. Finally the competences of the Food and Agriculture Organization of the United Nations (FAO) should be mentioned in this context. It has established a Code of Conduct for Responsible Fisheries as a non-binding instrument, but this Code is being implemented and used by the FAO as an instrument to generate new international norms. It may also be used to fill the provisions of the UNCLOS concerning conservation and management of marine living resources with substance. It is the particularity of this Code that it has been developed outside the context of the framework of an international treaty regime and it derives its legitimacy from having been established by experts and by having been accepted in practice thereafter (output legitimacy).

V. Norm-Making by International Courts and Tribunals According to Article 38 (1)(d) ICJ Statute “judicial decisions [are] subsidiary means for the determination of rules of law” only.28 The International Court of Justice (ICJ) has stated on this issue: It is clear that the Court cannot legislate, and, in the circumstances of the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules […]. The contention that the giving of an answer to the question posed would require the Court to legislate is based on a supposition that the present corpus juris is devoid of relevant rules in this matter. The Court could not accede to this argument; it states the existing law

28

See Pellet (note 4), paras. 313–319.

104 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend.29

This dictum is to be agreed to. Also the interpretation of existing norms by international courts and tribunals plays a significant role in the consolidation and formation of the international normative order. Nevertheless, it is necessary to distinguish between rule-making and the interpretation of existing rules, be it treaty law or international customary law. To consider the interpretation of international norms by international courts and tribunals as law-making does not reflect the nuances which exist in this respect in the mandate of international courts and tribunals. It further does not reflect that international norms are binding upon parties to these norms (in the case of an international treaty) or all States (in the case of international customary law) whereas judgments of international courts or tribunals are only binding upon the parties to the dispute and only have an indirect influence on the development of international law. They are, at least in principle, not even binding upon the court or tribunal having pronounced them.30 Having stated that international courts and tribunals have no norm-making function, it is to be acknowledged that the UNCLOS poses particular problems in this respect. It calls upon international courts and tribunals to take decisions which go beyond a mere interpretation of the law. This is particularly true for the delimitation of the exclusive economic zones (EEZ) and the continental shelves up to and beyond 200 nm. The latter issue evolved only recently and will be dealt with separately.31 The starting point for all delimitation cases for the EEZs and the continental shelves are Article 74 and Article 83 UNCLOS, respectively, between States with opposite or adjacent coasts. Article 74 UNCLOS reads in its first two paragraphs:

29

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 18; see also the Separate Opinion of Judge Gilbert Guillaume in the same case, 293, para. 14. 30

Differently Armin von Bogdandy/Ingo Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers, in: id. (eds.) (note 2), 3, 12–13. It goes without saying that the legal reasoning may “amount to significant legal arguments in future disputes.” However, this is not tantamount to legal bindingness as are the consequences of international treaties as envisaged by Art. 26 Vienna Convention on the Law of Treaties, 13 May 1969, UNTS 1155, 331 (VCLT). 31 See Bing Bing Jia, The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges, German Yearbook of International Law (GYIL) 57 (2014), 63, 71–81.

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1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

It is apparent from the wording that the international courts and tribunals addressed in paragraph 2 do not receive much guidance. Only one issue is evident, namely that the result to be achieved has to be equitable, and one should add that the procedure should be equitable and transparent.32 It is equally evident that Article 74 UNCLOS does not give the international courts and tribunals a mandate to decide ex aequo et bono. Over the years a vast jurisprudence has developed which started – from before the UNCLOS – with the North Sea Continental Shelf Cases33 to the Continental Shelf Case between the Libyan Arab Jamahiriya and Malta34 to the Black Sea Case.35 The most recent cases are the Dispute concerning the Delimitation of the Marine Boundary between Bangladesh and Myanmar in the Bay of Bengal,36 the ICJ judgment in the Territorial and Maritime Dispute between Nicaragua and Colombia,37 and the award in the Bay of Bengal Maritime Boundary Arbitration decided by an Annex VII arbitral tribunal.38 A new case, Question of the Delimitation of the Continental Shelf between

32 Permanent Court of Arbitration (PCA), In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, para. 339, available via: http://www.pca-cpa. org/showpage.asp?pag_id=1376 (accessed on 4 November 2014). 33 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3. 34

Id., Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, ICJ Reports 1985, 13. 35

Id., Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61. 36 ITLOS, Dispute concerning the Delimitation of the Marine Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012, 4. 37 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports 2012, 624. 38

See PCA (note 32).

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Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast,39 and the case Maritime Delimitation in the Caribbean Sea and in the Pacific Ocean40 are pending before the ICJ and will be a test to what extent the ICJ reconfirms the so far existing international jurisprudence. This jurisprudence has developed a methodology for delimitation, a procedure, and criteria against which the equality of the delimitation is to be judged. But what is the meaning of this jurisprudence? Is it binding in a sense that the arbitral tribunal concerning the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India is bound to follow, let us say, the jurisprudence of the ICJ in the Black Sea Case? This issue has been addressed in two judicial decisions. In respect of the relevance of case law the International Tribunal for the Law of the Sea (ITLOS) notes in paragraph 184 of its judgment in the Maritime Boundary Dispute between Bangladesh and Myanmar: Decisions of international courts and tribunals, referred to in article 38 of the Statute of the ICJ, are also of particular importance in determining the content of the law applicable to maritime delimitation under articles 74 and 83 of the Convention.41

In the same paragraph the Tribunal concurs with the statement in the Arbitral Award of 11 April 2006 that: ‘In a matter that has so significantly evolved over the last 60 years, customary law also has a particular role that, together with judicial and arbitral decisions, helps to shape the considerations that apply to any process of delimitation.’42

These statements, the statement of the ITLOS and the one of the Arbitral Tribunal, are neither identical nor very clear in their meaning. Taken literally, they attribute a different role to case law. According to the ITLOS, case law seems to be a means of identifying applicable sources of international law. It is doubtful whether this adequately describes the role that international case law plays and is meant to play in 39 See the ICJ’s pending cases, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2= 1&k=02&case=154&code=nicolb (accessed on 4 November 2014). 40 See the ICJ’s pending cases, available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=1& code=crnic&case=157&k=0f (accessed on 4 November 2014). 41 42

ITLOS, Bangladesh/Myanmar (note 36), para. 184.

Ibid., quoting Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between Them, Arbitral Award of 11 April 2006, Reports of International Arbitral Awards (RIAA) XXVII, 147, para. 223.

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the delimitation of the continental shelf and the EEZ. Considering the openness of the wording of Articles 74 and 83 UNCLOS, case law of international courts and tribunals is more than a means to identify the customary or treaty law relevant for the delimitation of continental shelves and EEZs. International courts and tribunals in respect of maritime delimitation exercise a ‘law-making function,’ a function which is anticipated and legitimised by Articles 74 and 83 UNCLOS by elaborating what constitutes an equitable solution. Unlike for the delimitation of the territorial sea, the Third United Nations Conference on the Law of the Sea could not agree on a particular method of delimitation of the continental shelves and the EEZs. The Conference therefore left the task of the delimitation to the coastal States concerned and – if they could not agree – to judicial dispute settlement. That means it is the task, and even the responsibility, of international courts and tribunals (when requested to settle disputes) to develop the methodology that is suitable for this purpose. In doing so, they are guided by a paramount objective, namely that the method chosen can lead to an equitable result and that, at the end of the process, an equitable result is achieved. Further objectives to be taken into consideration by international courts and tribunals are to provide for transparency and predictability of the whole process. The ensuing international case law constitutes an acquis judiciaire, a source of international law to be read into Articles 74 and 83 UNCLOS. It is the feature of this law not to be static but to be open to progressive development by the international courts and tribunals concerned. It is the responsibility of these international courts and tribunals not only to decide delimitation cases while remaining within the framework of such an acquis judiciaire but also to provide for the progressive development of the latter. They are called upon in further developing this acquis judiciaire to take into account new scientific findings. There are further cases in which the ITLOS contributed to the progressive evolution of norms governing the management of the sea. These are the decision that the delimitation of the continental shelves beyond 200 nm is governed by the same principles for delimitation as developed for Articles 74 and 83 UNCLOS43 and the interpretation of Article 73 UNCLOS44 on the competences of coastal States in 43 44

Id., Bangladesh/Myanmar (note 36), paras. 341–376.

Id., The “Tomimaru” Case (Japan v. Russian Federation), Prompt Release, Judgment of 6 August 2007, ITLOS Reports 2005–2007, 74, para. 72; reiterated and further elaborated upon in id., The M/V “Virginia G” Case (Panama/Guinea-Bissau), Judgment of 14 April 2014, para. 253, available at: http://

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respect of the management of marine living resources. Although the decisions concerned clarify the meaning of the respective provisions, the decisions were reached by a careful analysis of the regimes on delimitation and on the management of living resources, respectively, by means of interpretation. For example, in the "Tomimaru" Case (Japan v. Russia) of 6 August 2007 the ITLOS stated in paragraph 72: The Tribunal notes that article 73 of the Convention makes no reference to confiscation of vessels. The Tribunal is aware that many States have provided for measures of confiscation of fishing vessels in their legislation with respect to the management and conservation of marine living resources.45

What does this mean? The ITLOS had recourse – although not spelled out properly – to the Vienna Convention on the Law of Treaties (VCLT) according to which retroactive State practice may be used for interpretation purposes (Article 31 (3)(b) VCLT). This is a daring statement which raises several questions. What is the State practice referred to, must it be universal and overwhelming as in the case of confiscation? Apart from that, the interpretation has to remain within the framework of the UNCLOS. For example, Article 73 UNCLOS prohibits corporal punishment of violators of national fishing laws in the EEZ. Such limitation of coastal States’ enforcement rights cannot be overturned by retroactive practice.

VI. Conclusion The UNCLOS is a framework convention which in some of its parts is deliberately open for legal developments. The necessary norm-making may be undertaken by negotiations – to the extent such negotiations do not lead to results contrary to the object and purpose of the UNCLOS – or by States parties on the national level or by international organisations. In particular, the ISA exercises norm-making functions. Similar functions are exercised by the IMO and the FAO. Accordingly, it is appropriate to state that under the UNCLOS international organisations are meant to play

www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment/C19-Judgment_14.04.14_ corr.pdf (accessed on 4 November 2014). 45

Id., Tomimaru Case (note 44), para. 72.

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and play an important part in the evolution of the law of the sea. Equally influential in this respect is the General Assembly of the United Nations.46 International courts and tribunals equally contribute to the evolution of the law of the sea. They do so by interpreting the UNCLOS, also taking into account subsequent practice of States parties and subsequent international agreements. They may in this context also take into consideration international agreements concluded under the auspices of specialised agencies dealing with law of the sea matters such as the IMO or the FAO. To a certain extent international courts and tribunals are called upon by the Convention to act as norm-makers. This mandate carries with it a particular responsibility. Finally, it is appropriate to mention that judgments are not the only means to contribute to the evolution of the law of the sea. Advisory opinions may have a similar effect. They have certain advantages since they answer a legal question in general and deal with it in a format – it is not adversarial – which is particularly suitable.47 Advisory opinions are not binding. They live from their reasoning and to the extent the hearing was open. The advisory opinion of the Seabed Disputes Chamber is a very good example to that extent. It certainly contributed positively to the evolution of the law of the sea. It is to be hoped that the advisory opinion of the full tribunal on the responsibility of flag States concerning fishing vessels under their flag48 will be received equally as a substantial contribution to the law of the sea.

46 See Liesbeth Lijnzaad, Formal and Informal Processes in the Contemporary Law of the Sea at the United Nations: A Practitioner’s View, GYIL 57 (2014), 111, 117 et seq. 47

On the competence of the ITLOS to give advisory opinions and the relevant scientific debate see Rüdiger Wolfrum, Advisory Opinions: Are they a Suitable Alternative for the Settlement of International Disputes, in: id./Ina Gätzschmann (eds.), International Dispute Settlement: Room for Innovations? (2013), 35, 53–55. 48 ITLOS, Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), 27 March 2013, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_ no.21/Request_eng.pdf (accessed on 4 November 2014).

Formal and Informal Processes in the Contemporary Law of the Sea at the United Nations, a Practitioner’s View LIESBETH LIJNZAAD(

ABSTRACT: This article deals with formal and informal processes in the United Nation’s approach to Oceans and Law of the Sea, and includes a discussion of the various fora involved. It discusses the role of the formal meeting of States parties to the UNCLOS as well as the political role of the General Assembly. Various informal processes, such as Informal Consultative Process and the Marine Biodiversity beyond national jurisdiction working group, are analysed in the light of the multi-layered structure of the law of the sea debate in the United Nations. KEYWORDS: Law of the Sea, UNCLOS, ICP, Marine Biodiversity in Areas Beyond National Jurisdiction, Annual Omnibus Resolution on Oceans and Law of the Sea, SPLOS, UNGA

I. Introduction This contribution discusses contemporary informal processes in the law of the sea and how such informal processes function, in particular, within the United Nations (UN). It is important to understand the way in which practitioners and diplomats address legal questions in the law of the sea as political issues. I will focus solely on the role of the UN and of bodies within the ambit of the United Nations Convention on the Law of the Sea (UNCLOS,)1 leaving aside the many activities of the specialised (

Legal Adviser, Netherlands Ministry of Foreign Affairs and extraordinary professor Practice of International Law at Maastricht University. This is an extended version of a contribution to the conference titled ‘Law of the Sea in the 21st Century: Stalemate or Flexibility to Address New Challenges?’ at the Walther Schücking Institute for International Law at Kiel University, 7–9 March 2014. All views expressed are her own and do not necessarily represent the views of the Netherlands government. 1

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

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agencies. My intention is to present a practitioner’s view, give a snapshot of current informal processes, and make some critical comments on contemporary approaches. However, addressing informal processes in the law of the sea implies that formal processes exist as well. Thus our attention must first be directed at the formal role of States in the contemporary law of the sea – be it as parties to the UNCLOS or as members of the UN – before any informal process can be considered.

II. The Role of the Meeting of States Parties The Meeting of the States Parties to the United Nations Convention on the Law of the Sea (SPLOS) is a formal occasion in the sense that it is based on Article 319 (2) UNCLOS. This provision focuses on the role of the Secretary-General of the UN and reads: In addition to his functions as depositary, the Secretary-General shall: (a) report to all States Parties, the Authority and competent international organizations on issues of a general nature that have arisen with respect to this Convention; (b) notify the Authority of ratifications and formal confirmations of and accessions to this Convention and amendments thereto, as well as of denunciations of this Convention; (c) notify States Parties of agreements in accordance with article 311, paragraph 4; (d) circulate amendments adopted in accordance with this Convention to States Parties for ratification or accession; (e) convene necessary meetings of States Parties in accordance with this Convention.

The Virginia Commentary notes that Article 319 UNCLOS essentially contains ordinary functions related to the role of the Secretary-General as depository and some additional substantive functions.2 The substantive functions appear in paragraph 2 and are the source of the UN’s active involvement with the law of the sea. For our purposes, paragraphs (a) and (e) are most relevant: they are central to the yearly law of the sea debate in the General Assembly (GA) and its so-called omnibus resolution (paragraph 2 (a)) and to the meeting of States parties (paragraph 2 (e)).

2

Myron H. Nordquist/Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary (1989), vol. V, 291.

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It would appear that the creation of a meeting of States parties to the Convention originated in a suggestion by the then Secretary-General Kurt Waldheim at the Law of the Sea Conference in 1974.3 In the following years, the scope of the SecretaryGeneral’s report, its purpose, and the type of information it would contain were discussed at the Law of the Sea Conference,4 but not much effort was put into developing the idea of a meeting of States parties. Unusually, the existence of a meeting of States parties is only implied by the Convention, it is not explicitly established. Paragraph 2 (e) UNCLOS provides for a rather limited role of the meeting of States parties to the Convention,5 and primarily speaks about the role of the Secretary-General. The meeting of States parties is formal in the sense of working through an agreed list of agenda items, such as a discussion of the annual report of the Secretary-General on Oceans and Law of the Sea based on Article 319 (2)(a) UNCLOS.6 It receives reports from the President of the International Tribunal for the Law of the Sea (ITLOS), and the chairman of the Commission on the Limits of the Continental Shelf (CLCS).7 It also takes decisions on the finances of the Tribunal and the Commission and elects both judges of the Tribunal and members of the Commission. Though the International Seabed Authority (ISA) is an international organisation in its own right, it nevertheless informs the SPLOS about its work.8 As the UN Secretariat is in charge of convening the SPLOS,9 this meeting has a UN flavour, even if technically the UNCLOS framework is distinct from the UN. 3 Ibid., 293, quoting UN Secretary-General Waldheim as saying that “[a] periodic assembly of the parties to the convention, for the review of common problems and for the development of ways to meet any difficulties produced by new uses of the seas, would be worth considering”. 4

Ibid., 295–299.

5

See Alex G. Oude Elferink, Reviewing the Implementation of the LOS Convention: The Role of the United Nations General Assembly and the Meeting of States Parties, in: id. Donald R. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (2004), 295. 6

See, for example, States parties to the United Nations Convention on the Law of the Sea (SPLOS), Agenda of the Twenty-third Meeting, SPLOS/261 (2013). 7

See id., Rules of Procedure for Meetings of States Parties, SPLOS/2/Rev.4 (2005), Rules 6–8.

8

For the participation of the International Seabed Authority, see ibid., Rules 18 (2) and 37.

9

In practice, this is obviously the Secretariat (see Arts. 97 et seq. Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter)), and more specifically, the Division for Ocean Affairs and Law of the Sea (DOALOS) of the Office for Legal Affairs. See the DOALOS website at: http://www.un.org/Depts/los/index.htm (accessed on 14 November 2014).

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The SPLOS meeting is highly administrative, indeed some feel it takes quite a lot of time (five working days or more, depending on whether elections take place) to do relatively few things. There is only limited exchange on substantive law of the sea questions other than some reactions to the various reports from bodies established by the UNCLOS. In fact, – writing as a one-time participant – it is not the most scintillating meeting even if it is undoubtedly important to ensure that there is a budget for ITLOS, that the CLCS will be able to cope with its increasing workload, and that judges are elected. There has been a recurring discussion as to whether the meetings of States parties ought to include a substantive discussion of the implementation of the Convention.10 This discussion which – not surprisingly – is centred on the interpretation of Article 319 (2)(e) UNCLOS, a rather bland provision that does not clarify the purpose of qualifying the meetings as ‘necessary,’ leaves the meaning of necessity to be decided upon by States. In the meantime, the SPLOS meetings have become an established annual event, irrespective of their necessity per se. There is a dearth of analysis on the absence of a supervisory mechanism in the UNCLOS and its consequences. A prominent oceans visionary, the late Elisabeth Mann Borgese, addressed the absence of a States parties’ body with a broader mandate early on. In her view, the limited mandate of the SPLOS is a lacuna in the Convention, which means that the UN system lacks “a body capable of considering the closely interrelated problems of ocean space as a whole.”11 She suggested solutions along the lines of either amending the Convention with a view to broadening the mandate of the SPLOS, or alternatively, broadening the mandate of the ISA Assembly, or, thirdly, introducing a specific mandate for the GA to periodically consider the problems of the oceans in a ‘Committee of the Whole format’ with a view to developing an integrated ocean policy. Her perspective is very much a governance one: the limited role of the SPLOS is a problem because of the absence of a forum for governance issues.

10

Oude Elferink (note 5), 306–309; see also SPLOS, Report of the Seventh Meeting, SPLOS/24 1997, paras. 35–41.The agenda item was entitled: Role of the Meeting of States Parties in Reviewing Ocean and Law of the Sea Issues. In their eighth meeting, the States parties discussed a completely different matter under this agenda item: SPLOS procedural rules with respect to decisions concerning finance and budget, Report of the Eighth Meeting, SPLOS/31 (1998). 11

Elisabeth Mann Borgese, The Oceanic Circle: Governing the Seas as a Global Resource (1998), 161, 162.

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In discussing the relationship between the substance of the Convention and its institutional design, Alex Oude Elferink considers that the broad range of substantive issues covered by the Convention, the scope of its content, and the fact that many issues were already covered by other institutional arrangements has meant that no specific institutional framework has been designed for the UNCLOS.12 He draws a distinction between jurisdictional rules in the Convention and governance rules requiring active management of the oceans. He observes that detailed technical rules require different review mechanisms than principles of international law,13 thus emphasising the importance of tailoring supervisory mechanisms to the character of the rules to be supervised. A comprehensive institutional framework would have been difficult to establish for the Convention, and it would not be appropriate to consider jurisdictional issues in an institutional setting. In addition, the nature of many provisions implied that no further cooperation would be necessary for implementation, thus putting them outside the ambit of a review mechanism. Focusing on the historical background and drafting history of the Convention, Tullio Treves discusses the involvement of the GA, noting that the Convention does not explicitly refer to the role of the GA but rather to obligations of the SecretaryGeneral.14 The law of the sea has been on the agenda of the GA for a very long time, from the beginning of the work of the GA’s Seabed Committee in 1968 until the conclusion of the Third Law of the Sea Conference in 1982. After 1982, it would take a further twelve years before the Convention would enter into force, and during that time no forum other than the GA was available to discuss law of the sea matters or indeed to act as the caretaker of the Convention which was slow in garnering the support needed for it to enter into force. The long period between the conclusion of the Third United Nations Conference on the Law of the Sea in 1982 and the entry into force of the Convention in 1994, left a space which allowed the GA to become involved in the law of the sea as no other format of global reach was available.15 In 12

Oude Elferink (note 5), 299–301.

13

Ibid., 296.

14

Tullio Treves, The General Assembly and the Meeting of States Parties in the Implementation of the LOS Convention, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (2005), 55, 57. 15 Id. (note 14), 58, considers that “[…] UNCLOS III, from 1973 to 1982, had accustomed States to have a forum for law of the sea issues that was, in practice, continuously open and universal in participation”.

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Treves’s view, this lengthy involvement of the GA has resulted in the ongoing interest of the GA leading to the annual resolution as we now know it. In comparing the analysis of Mann Borgese, Oude Elferink, and Treves, it is clear that the concern about the absence of a forum or an organ with a mandate to address policy issues, lies particularly with those parts of the contemporary law of the sea that require policy development and governance. As Oude Elferink clearly identified, those parts of the UNCLOS that address jurisdictional issues are less in need of a supervisory or monitoring structure – albeit that it may at times still be necessary to have access to a forum where, as we will see below, jurisdictional concepts may be reiterated. It may appear strange that the States parties do not discuss the implementation of the Convention or current issues in the law of the sea. One would expect the contracting States to be the supreme masters of the Convention, yet, in practice, the actual scope of their work is very limited. When compared to the more elaborate structures of Conferences of the Parties (COPs) or Meetings of the Parties (MOPs) as they appear in environmental law instruments, there is definitely a difference in the size and the scope of the work.16 Many meetings of contracting States in international environmental law have developed into fora with a central role in monitoring compliance with and implementation of international instruments and, where necessary, providing additional specific rules for further implementation. In this respect, it has been said that the UNCLOS lacks the institutional design to move beyond purely administrative matters.17 The question of the nature of the SPLOS has been on the agenda of that very same meeting. While the text of Article 319 UNCLOS does not seem to specifically prohibit a substantive discussion of law of the sea-related matters falling within the ambit of the Convention, it has been considered by others that doing so would be politically difficult given the absence of the United States (US) from this forum. Treves correctly suggests that this is most of all a difference of political opinion, not of a legal one.18 The matter was addressed in 2000, when an agenda item appeared that required a discussion on the type of issues to be addressed by the SPLOS: Role of the

16

Ibid., 55.

17

Oude Elferink (note 5), 296.

18

Treves (note 14), 62; infra, note 20.

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Meeting of States parties with respect to the implementation of the UNCLOS.19 The compromise solution has been to include a fairly general item on the SPLOS agenda, which although rarely used, leaves the possibility of debate open in the States parties meeting.20 This arrangement has been accepted by all, thus the SPLOS is a formal meeting without substantive law of the sea issues on its agenda. On the other hand and to counterbalance this observation, if States had seen a need for a more substantive meeting of the SPLOS they could have seized the possibility to broaden the meetings of this body. States may shape meetings created by international instruments, but if that does not happen there is presumably no need to do so from the perspective of States.21 The contracting States acting in the SPLOS format have never seriously attempted to start a discussion on competence in respect of law of the sea matters within the GA. On paper, this is a logical and rational question about the primacy of the political debate over the legal debate in the UN. But in fact, delegations that participate in the GA debate and in the SPLOS, and indeed the individuals themselves, are one and the same, and this is a reason why this remains largely a drawing board discussion.22 For a practitioner, the question is perhaps whether a forum for discussion about oceans and law of the sea is available, the basis of such a forum being of secondary importance.

III. The Role of the General Assembly The GA has, in the past, played a crucial role with respect to law of the sea issues. The initial steps towards setting up the Third UN Conference on the Law of the Sea were cast as a GA resolution, as was the initiation of the negotiations leading to the

19

SPLOS, Report of the Tenth Meeting, SPLOS/60 (2000), paras. 73–78.

20

The agenda item now reads: “Report of the Secretary-General under article 319 for the information of States parties on issues of a general nature, relevant to States parties, which have arisen with respect to the United Nations Convention on the Law of the Sea”; see, for instance, SPLOS, Agenda of the Twenty-fourth Meeting, SPLOS/273 (2014). 21 22

Oude Elferink (note 5), 310.

Treves (note 15), 72, observes that “[…] States Parties are not keen on fighting in the General Assembly for claiming competence for the SPLOS even on subjects for which a reasonable case could be made”.

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Fish Stocks Agreement of 1995.23 As suggested by Oude Elferink, one may consider that the GA has usurped the role that would otherwise have belonged to a conference of parties.24 Treves also notes that States have at times consented to the GA assuming competences which could have instead been competences of the SPLOS.25 The origin of the GA role in the field of the law of the sea is the broad mandate of the GA itself, and in particular Articles 10, 11, and 13 Charter of the United Nations (UN Charter).26 Strengthening international cooperation is an important role for the GA, as is encouraging the progressive development of international law,27 which no doubt includes discussing law of the sea issues. The drafting history of the Convention seems to have also had an impact on the development of the annual discussion of the law of the sea by the GA. It has been suggested that, while it had been impossible to agree on the inclusion of a provision on periodic review in the Convention itself, the GA placing the law of the sea on its agenda in 1982, has had a similar effect.28 With – at this stage – a total of 166 States parties,29 the UNCLOS has found broad support. Yet, in the delineation of authority between the GA and the meeting of States parties to discuss substantive issues in the law of the sea, the absence of a major nation from the circle of the States parties – the US – seems to have played an important role. Formally, the US can only participate in the SPLOS as an observer, whereas its ability to participate in the GA is beyond discussion. The US is however, not alone, other maritime States of regional importance, such as Venezuela and Turkey, have also yet to ratify the UNCLOS. Attention to the importance of universal acceptance has waned in the past years. Yet, reaching universal membership of the 23 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; 4 August 1995, UNTS 2167, 3 (Straddling Fish Stocks Agreement). 24

Oude Elferink (note 5), 304.

25

An example would be the establishment of trust funds in the law of the sea domain by the General Assembly. 26

See supra, note 10.

27

See Art. 13 (1)(a) UN Charter.

28

Nordquist/Rosenne/Sohn (note 2), 295. See GA Res. 37/66 of 3 December 1982, para. 10.

29

Ratification of Niger in August 2013.

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Convention ought to remain an important goal and a key interest for the States parties to the Convention. While the absence of the US may be a negative reason not to have a substantive discussion on oceans and the law of the sea in the SPLOS, there are other reasons for discussing law of the sea issues in the GA. Setting aside questions of military and strategic importance, the fact that the oceans cover approximately 70% of the earth’s surface and that millions of people depend on the oceans for food and livelihoods are cogent arguments for discussion of law of the sea issues in the GA. It is difficult to see how a body like the GA could not be interested in ocean management and related legal questions. Discussing oceans and the law of the sea matters in the GA has its limitations. The first and rather obvious aspect is that the GA is a political forum; it is not a specialist legal forum. Interestingly, the discussion of the law of the sea does not take place in the Sixth Committee (Legal) but rather directly in plenary. Thus, this organisational choice does not necessarily single out the legal issues that are at stake as it is not in the Legal Committee of the Assembly. The GA treats the law of the sea (as a legal matter) together with the oceans (policy). This may be seen as logical as oceans policy and law of the sea are closely intertwined fields. However, it leads to a mixture of approaches: discussing oceans policy is not always a legal debate, even if they may often be interconnected. Delegates who participate in debates are not necessarily well-versed in the law of the sea and may not have specific instructions for such discussions, particularly where it concerns smaller, less well-equipped administrations. Thus, discussions are not likely to be technical and legal and may at times be the source of confusion.

IV. The Secretary-General’s Report In the period between the conclusion of the Third Conference on the Law of the Sea in 1982 and before the entry into force of the Convention in 1994, the GA had become accustomed to receiving a report on the law of the sea.30 In the years following the entry into force of the Convention, initially, no annual report was submitted

30

See GA Res. 49/28 of 6 December 1994, para. 10.

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to the SPLOS,31 indeed the text of Article 319 (2)(a) UNCLOS does not explicitly require such a report. It rather obliges the Secretary-General to “report to all States Parties, the Authority and competent international organizations on issues of a general nature that have arisen with respect to this Convention.”32 This provision determines that the States parties to the Convention are the addressees of the report but does not make further specifications with respect to the timing or frequency of this reporting procedure. There has been some discussion on the status of the report in the past. The discussion on the addressees of the annual report on law of the sea is very much interwoven with the debate on whether or not the meeting of States parties should also encompass a substantive discussion as such a debate would clearly be facilitated by having a substantive report on the table. Over the years, the report has grown in size and has increasingly referred to developments in regional organisations and to particular current themes. There is no doubt that States will use the report in preparing their positions both in anticipation of the SPLOS meetings and of negotiations of the omnibus resolution. It is a valuable source of up-to-date information, a broad, useful, and much praised report presenting a wealth of information. By now the report is used by the SPLOS,33 United Nations Informal Consultative Process on Oceans and Law of the Sea (ICP),34 and the GA35 as a basis for their work. This clearly makes sense, as a duplication of the efforts of the UN Secretariat in preparing a report should be prevented. However, there is still hardly a substantive debate in the meeting of States parties – which is favoured by some but not by all. On the other hand, the GA does not conduct a substantive debate either: its attention is very much focused on the negotiation of the annual resolution. This is a somewhat unusual situation and an apparent disconnect: although an extensive report is available, it is not formally discussed. While the annual resolution is commonly known as the ‘omnibus’ resolu-

31 For the discussion in SPLOS, see SPLOS (note 20), paras. 73–78; id., Report of the Eleventh Meeting, SPLOS/73 (2001), paras. 85–92; id., Report of the Twelfth Meeting, SPLOS/91 (2002), paras. 111–116; id., Report of the Thirteenth Meeting, SPLOS/103 (2003), paras. 94–102; id., Report of the Fourteenth Meeting, SPLOS/119 (2004), paras. 78–89. 32

For an overview of the debate in SPLOS on this reporting obligation, see Treves (note 14), 63–65.

33

GA Res. 68/70 of 9 December 2013, para. 286.

34

Ibid., para. 284.

35

Ibid.

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tion, it is fair to say that the annual report of the Secretary-General is very much an omnibus report on oceans and law of the sea, it has a broad and extensive scope.

V. The Annual ‘Omnibus’ Resolution on Oceans and Law of the Sea The annual resolution on oceans and law of the sea has become a standard item on the agenda of the GA, and it is useful to reflect on the functions of this resolution and indeed the agenda item itself. Since the standard-setting in the mid-1990s, the GA has without fail produced a series of annual law of the Sea resolutions and has initiated informal processes dealing with issues that must be qualified as having both policy-related as well as legal aspects. It is the product of a mostly informal political process on law of the sea matters that deserves more attention, in terms of how the resolution is established and what it means. For a long time, the negotiations of this resolution would take place in the corridors of the UN building in between other meetings or during lunch breaks. This way of organising discussions befits the working style of diplomats in New York but it was difficult to follow for experts in capitals around the world who were unclear about when and how to present drafting proposals or indeed substantive additions or changes to the text. Since 2006, the process has been streamlined and now consists of two rounds of one week long negotiations in the autumn – making it possible for persons other than New York-based diplomats to participate.36 A diplomat acting as a coordinator for the negotiations will informally chair the process, supported by the Division of Ocean Affairs and Law of the Sea of the UN Secretariat. These negotiations tend to be difficult and demanding. States will invest seriously in this work, carefully weighing every word as they work towards a compromise.37 The need for compromise produces sentences that seek to include ambitions as well as remain realistic, combined with caveats and conditions together with some open-ended formulations. Such difficult 36 37

GA Res. 61/222 of 20 December 2006, para. 133.

Louise de la Fayette, The Role of the United Nations in International Oceans Governance, in: David Freestone/Richard Barnes/David Ong (eds.), The Law of the Sea: Progress and Prospects (2006), 63, 69, writes: “Although the resolutions are not strictly speaking legally binding in themselves, they […] are negotiated as seriously as international agreements”.

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sentences appear particularly when the language seeks to suggest consensus while papering over a difference of opinion. Invariably, this will result in some long paragraphs with a complex structure and difficult compromise language, to the detriment of the legibility of the resolution. Needless to say these are the most political parts of the resolution. Only after the text has been agreed will a debate take place in the GA on the adoption of the resolution, where statements may be made without any specific substantive discussions on the annual report taking place. Even if the process has now become somewhat more organised, it is still far from transparent: as it is informal and takes place behind closed doors, it may be difficult for non-governmental organisations (NGOs) concerned with oceans issues to follow. The increase in the length of the annual omnibus resolution has been spectacular, both in quantitative terms as well as in substance. In part, this correlates to the great increase in knowledge with respect to oceans issues during the past decades and the multitude of initiatives – whether of a policy or standard-setting nature – that have consequently developed at regional and international level. For the sake of comparison: in 2003 the resolution contained 18 preambular paragraphs and 79 operational paragraphs (a total of 15 pages),38 and by 2013, this had grown to 44 preambular paragraphs and no less than 288 operational paragraphs (leading to a total of 48 pages).39 This makes the omnibus resolution by far the longest resolution of the GA. It has become a veritable catalogue, if not an encyclopaedia, of everything that has happened, is happening, and should happen in oceans policy and law of the sea. Looking at the text of the series of omnibus resolutions over time, some observations must be made. The text covers all kinds of ocean policy and law of the searelated issues, both at global and at regional level. By and large, all issues mentioned in the UNCLOS can be found in one form or another in the omnibus resolution, with the exception of fisheries-related issues which are dealt with in a specific resolution. Kari Hakapää identifies messages related to the implementation of the Convention: information on sea-related events and activities, statements of principle, appeals to Member States to take action, requests to the Secretary-General to take measures, as well as the creation of new processes in ocean management and the follow-up or 38

GA Res. 58/240 of 23 December 2003.

39

GA Res. 68/70 (note 34).

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continuation of existing processes.40 At times, the resolutions express views on the legal scope of certain UN instruments,41 and when there is disagreement on the desirability or usefulness of certain instruments the text of the resolution becomes vague as a consequence of existing controversies between various States.42 Another criticism of the resolution texts is that, while being vague, the addressees of specific provisions are not necessarily clear. James Harrison comments that paragraphs in the resolution frequently address ‘the competent international organisation’ and do not specifically designate who is supposed to take action.43 As it has grown over the years, the resolution has become more organised and is now structured in sections.44 For instance, the omnibus resolution of December 2013 contains 17 sections and an annex on the Terms of Reference for UN-Oceans.45 While some of the sections refer to parts of the Convention, this is certainly not the case for the whole document.46 Also the attention of the GA may be more focused on the governance aspects of the law of the sea, rather than its jurisdictional aspects. The resolution is a demonstration of the many and varied activities undertaken in oceans policy and law of the sea. When comparing the content of the resolutions over time, developing patterns of concern in relation to specific issues in oceans governance can be seen in the text: as issues arise in international debate, they are reflected in the text of the resolution. While issues of concern in the law of the sea change over time, the Convention does not. Attention to piracy and armed robbery at sea would be a prime example of how issues of political concern flow into the annual resolution.

40 Kari Hakapää, Oceans and the Law of the Sea at the UN General Assembly, Aegean Review on the Law of the Sea 2 (2010), 53, 59. 41 See GA Res. 67/78 of 11 December 2012, para. 98, limiting a series of Security Council resolutions on piracy off the coast of Somalia to Somalia only, and stating that the resolutions “[…] do not affect the rights, obligations or responsibilities of Member States under international law, including any rights or obligations under the Convention, with respect to any other situation, and underscores, in particular, the fact that they are not to be considered as establishing customary international law”. 42

Hakapää (note 41), passim.

43

James Harrison, Making the Law of the Sea: A Study in the Development of International Law (2011), 250–251. 44

GA Res. 56/12 of 28 November 2001.

45

GA Res. 68/70 (note 33).

46

For example, the Resolution contains chapters on ‘the continental shelf and the work of the Commission,’ ‘maritime safety and security and flag State implementation,’ and ‘marine biodiversity’.

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Thus, the resolution tends to include expressions of concern about current developments in the field.47 In referring to developments within specialised organisations or regional organisations, the text appears exhaustive and appreciative of recent developments. A series of paragraphs of a commendatory nature has appeared – congratulating organisations on work achieved or instruments developed.48 New instruments49 are frequently mentioned and the desirability of the ratification or implementation of other instruments is underlined.50 As the recycling of language is a political fact of life, the resolution is encumbered with difficult and repetitive language.51 It is difficult to delete agreed language from a previous text, new developments can only be added and thus the text grows. There is probably a psychological element in this process: as last year’s text was broad and all encompassing, there will be an urge to ensure that every possible development in the field of ocean management and the law of the sea in the last year be included in the new text. The length of the text triggers a desire for completeness, and this same desire will arise again next year and the year after. Once such an approach becomes established, it will be increasingly difficult not to include developments in other corners of the world, and, consequently, the text will continue to grow. The structure of the annual resolution, and in particular the use of sections in the text since the 56th session, may also stimulate the desire for completeness: using headings may prompt 47 For example in GA Res. 68/70 (note 34), para. 175: “Expresses its concern regarding the spreading of hypoxic dead zones in oceans as a result of eutrophication by riverine run-off of fertilizers, sewage outfall”. See also paras. 192 (environmental oil spill incidents) or 272 (continued serious concern regarding the lack of resources available in the voluntary trust fund etc.). 48

Ibid., para. 225: “Notes with appreciation the work of the Intergovernmental Oceanographic Commission, with the advice of the Advisory Body of Experts on the Law of the Sea, on the development of procedures for the implementation of Parts XIII and XIV of the Convention”. Other examples in paras. 231, 248, 255, 258, and 263. 49 Ibid., para. 177: “Notes the adoption of the Minamata Convention on Mercury on 10 October 2013”. 50

Ibid., para. 115: “Urges States to ensure the full implementation of resolution A.1044 (27) of the Assembly of the International Maritime Organization on piracy and armed robbery against ships off the coast of Somalia”. Para. 139: “Invites States to implement the Revised Guidelines on the Prevention of Access by Stoaways and the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases adopted by the International Maritime Organisation on 2 December 2010”. 51

Hakapää (note 41), 78: “Compromise seeking and the format of the resolutions also result in lengthy sentences and complex expressions in the language of the resolutions”.

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reflection in the vein of ‘did we include all there is to mention about …?’ In conclusion: the label ‘omnibus’ could not have been more appropriate for this resolution. Writing that the annual consultation process “has somewhat overdone itself,” Hakapää suggests a number of ways to reduce the text of the resolution.52 Possibilities would be shortening the preamble, limiting the operative part to new activities and developments only, and focusing on recommendations furthering the object and purpose of the UNCLOS. However, it has been difficult to reduce the length of the resolution, or to make the language more precise and less political. Attempts have been made to shorten the annual resolution, with the UN Secretariat suggesting a careful review of the text with a view to reducing its length. This proved unacceptable to delegations, who again demonstrated a great attachment to the older text. In terms of multilateral diplomacy at the UN, this preference for ‘agreed language’ is not unusual, but with the ever-developing activities in the field of the law of the sea it has meant that the resolution has become unusually long. The inability to shorten the resolution and reduce its size to essential paragraphs is in part a reflection of a lack of clarity regarding the nature of the resolution and its exact purpose. Otherwise, the attachment to the lengthy and repetitive text may be a sign of a ‘fail-safe’ approach by the negotiators: redundant language may not look efficient or useful, but there is little harm in such texts. The point remains, though, that a strong and clear text focusing on key issues in the contemporary law of the sea is likely to be much more convincing and thus much more supportive of the goal of improving governance of the oceans. Until recently, not much attention had been devoted to the annual law of the sea resolution.53 The important question is what exactly is achieved with this document? First, the annual resolution is a clear expression of the UN interest in oceans and law of the sea. In that sense, it is a confirmation that the role of the UN extends to the governance of the oceans – irrespective of whether its members are parties to the Convention or not. A GA resolution is also a way to raise awareness of an emerging or previously unknown problem requiring international attention. In order to draw attention to a global problem, using the GA channel is a logical choice. Thus, the omnibus resolution 52

Ibid., 77, 78.

53

But see ibid., passim. See also Harrison (note 43), 255–256; and Oude Elferink (note 5), 303–306.

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functions as a means of setting the international oceans agenda and of providing information regarding measures taken to address such problems. Hakapää observes, for instance, that, since 2006, marine biodiversity has become a separate section in the annual resolution in line with the growing international importance attached to the subject,54 and, by 2012, the Assembly had begun to speak of its own “central role relating to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction.”55 Similarly, there are recommendations to States to address – either individually or through an international debate – issues of contemporary concern in a particular field. Another key aspect of the resolution is that it will facilitate the organisation of (informal) meetings on specific issues in the field of ocean management and the law of the sea within the UN. As the GA determines that meetings about a particular subject must take place, the resolution will provide meeting rooms, interpretation, and support from the UN Secretariat including the preparation of documents and translation into the official languages which facilitates necessary meetings. Without such resolutions these meetings would not happen as funding would not be available. Resolutions are gateways to the initiation or continuation of informal processes on law of the sea issues within the UN. Without the resolution such processes could not occur. For example, the conference that formulated the Straddling Fish Stocks Agreement started out as an intergovernmental conference with origins in Agenda 21 and was established in GA Resolution 47/192. The resolution is the umbilical cord that connects informal and formal processes in oceans and law of the sea with the GA. The ICP and the Ad hoc Open-ended Informal Working Group on Marine Biodiversity in Areas beyond National Jurisdiction of the General Assembly (BBNJ), both key contemporary processes, originate in the annual omnibus resolution and feed into the formulation of the annual resolution.

54

Hakapää (note 41), 73–75, referring to GA Res. 61/222 of 20 December 2006.

55

GA Res. 66/231 of 24 December 2011, para. 165.

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VI. The Informal Consultative Process on Law of the Sea and the Oceans The ICP56 was created by the GA57 in response to a decision of the Commission on Sustainable Development in April 1999.58 It was felt that more time should be devoted to considering the issues presented in the annual report on oceans and the law of the sea. The role of the ICP is “to facilitate the annual review by the GA in an effective and constructive manner of developments in ocean affairs and law of the sea.”59 In practice, this means that the process focuses on matters related to ocean governance as provided by the Convention, jurisdictional rules in the Convention are rarely addressed. The ICP itself has no authority to pursue coordination in respect of legal issues, and it has not been the intention to establish a new body60 – hence the notion of ‘consultative process.’ The process was initially set up for a period of three years,61 and has seen a number of successive continuations of its mandate. The ICP has thus become an annual event, dealing with a variety of oceans issues. The choice of subjects lies with the GA who decides on the topics in the omnibus resolution. The format of the meeting implies presentations by a broad range of scientists sitting in panels organised by the cochairs. The aim is the exchange of information including the presentation of relevant policies by international or regional organisations. In part, the results of the ICP are intangible in the sense of debates providing a better understanding of processes in the ocean and updating the knowledge of delegations on ocean science. As this is reported, it may be assumed that the information shared at UN level will trickle down and inform national and regional authorities of contemporary thinking in the field of ocean governance.

56

Initially known as UNICPOLOS, later shortened to ICP.

57

GA Res. 54/33 of 24 November 1999.

58

Economic and Social Council (ECOSOC), Commission on Sustainable Development, Report on the Seventh Session, UN Doc. E/CN.17/1999/20 (1998), in particular Decision 7/1, Oceans and Seas, para. 40. 59

See http://www.un.org/Depts/los/consultative_process/consultative_process.htm (accessed on 5 April 2015). 60 GA Res. 54/33 (note 57), para. 3 (d): “[…] and should not pursue legal or juridical coordination among the different legal instruments”. 61

Ibid., para. 4.

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The matter of the protection and sustainable use of marine biodiversity in areas beyond national jurisdiction had been discussed a number of times in the ICP before evolving into a separate ‘spin off’ process of its own. Discussions on this matter in the ICP paved the way towards a GA decision to embark on this separate process. The approach has been for the GA to mostly select two themes per session, and, over the years, a multitude of issues have been discussed. This format has meant that a comprehensive review of the whole annual report of the Secretary-General in the ICP was never possible. Also the meetings have focused on a scientific approach, addressing mostly governance issues and ocean management. The ICP has had a mixed reception with delegations holding different views on its purpose and success. There have been concerns about the efficiency of the ICP process in terms of the clarity of its goals, which has lead to an evaluation at the 10th session in 2010. Another criticism has been that the ICP – being a process created by the United Nations Commission on Sustainable Development, has moved away from its original sustainable development focus.62 The ICP had increasingly prepared ‘agreed elements’ for inclusion in the omnibus resolution, bits of text formulated and indeed negotiated in connection with the ICP debate. Even if these were not formal conclusions in any way, the negotiated elements tended to be included explicitly in the annual resolution. Some considered this practice to be beyond the consultative nature of the ICP and felt that the ICP was straying into territory that ought to pertain to the meeting of States parties. However, this practice has been discontinued and no suggestions for resolution texts have been drafted since 2007.63 As to the meaning of the word ‘informal’ in the name of this process, it pertains to the fact that the meeting has no specific authority of its own and is in fact an auxiliary meeting to discuss sections of the annual report for the benefit of the GA.

62 See Nicola Ferri, What Future for the United Nations Open-ended Informal Consultative Process on Oceans and Law of the Sea, International Journal of Maritime and Coastal Law 25 (2010), 271, 273; Harrison (note 43), 253. 63 See GA, Report of the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at Its Eighth Meeting, UN Doc. A/62/169 (2007), for the final ‘elements’.

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VII. The Informal Process on Marine Biodiversity beyond National Jurisdiction The informal nature of a process in the UN seems to go hand in hand with long titles and difficult acronyms. The BBNJ64 began its work in February 2006, with a mandate from the November 2004 omnibus resolution.65 Prior to that, in 2003, the GA had requested the Secretary-General to provide an addendum to his annual report “describing the threats and risks to (such) marine ecosystems and biodiversity in areas beyond national jurisdiction as well as details on any conservation and management measures in place at the global, regional, sub regional, or national levels.”66 This report formed the basis for the initial work of the BBNJ Working Group.67 Further sessions of the Working Group followed in 200868 and 2010.69 The Working Group initially met every two years, thus making its work less productive given the regular rotation of diplomats in combination with the sometimes technical nature of the work.70 Since 2010, the frequency of the meetings has increased with the GA

64

AHOEIWG BBNJ, commonly known as the BBNJ Working Group.

65

GA Res. 59/24 of 17 November 2004, para. 73, listing four tasks for the Working Group: “(a) To survey the past and present activities of the United Nations and other relevant international organizations with regard to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction; (b) To examine the scientific, technical, economic, legal, environmental, socioeconomic and other aspects of these issues; (c) To identify key issues and questions where more detailed background studies would facilitate consideration by States of these issues; (d) To indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction”. 66

GA Res. 58/240 of 23 December 2004, para. 52.

67

GA Res. 59/24 (note 65), para. 74, and the corresponding Report of the Secretary-General, UN Doc. A/60/63/Add.1 (2005). 68

Report of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction, UN Doc. A/63/79 (2008). 69 Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group, Letter dated 16 March 2010 to the President of the General Assembly, UN Doc. A/65/68 (2010). 70

The 2006 session was co-chaired by Mrs. Gomez-Robledo (Mexico) and Mr. Burgess (Australia), the 2008 session by Mrs. Gomez-Robledo (Mexico) and Mr. Hill (Australia); from 2010 until 2015 Ambassador Kohona (Sri Lanka) and Ms. Lijnzaad (Netherlands) have been co-chairing, according to the United Nations formula of ensuring chairing by representatives of both developing and developed States.

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agreeing to yearly meetings and most recently, three meetings were held in 2014–2015 in the run up to a decision to be taken “by the end of the 69th session.”71 The GA has through the annual omnibus resolution, expressed the direction it wished the BBNJ process to take, and these resolutions have been used to shape the format and content of the meetings to discuss marine biodiversity. The specific formulation by the BBNJ Working Group in early June 2011 of recommendations72 to turn the discussions into a more focused process, which were subsequently endorsed and attached to the annual resolution,73 stepped up the discussion. This Annex, known as the ‘package,’ determines that a process be initiated with a view to ensuring that the legal framework effectively addresses the issues by identifying gaps and ways forward including through the implementation of existing instruments and the possible development of a multilateral agreement under the Convention. Thus, this (new) process should address the status quo as well as future developments, taking into account the existing instruments (thereby including the ‘implementation gap’ position) as well as the need for a future agreement (the ‘regulatory gap’ view). The Annex states that marine genetic resources must be addressed and also includes a list of the further issues to be included such as benefit sharing, area-based management tools, environmental impact assessments, capacity building, and transfer of technology.74 It indicates that this process may take place in the Working Group, and in inter-sessional workshops aimed at improving understanding and clarifying key issues. Marine biodiversity is a specialist subject, which not all delegates felt they had sufficient knowledge of, in order to participate in debates in an informed and confident manner. Thus, on a number of occasions, experts have been invited to participate in the meetings of the Working Group (either planned or arranged on an ad hoc basis during meetings), and, in December 2012, the GA decided that two two-day 71

GA Res. 66/288 of 27 July 2012, para. 162.

72

Co-Chairs of the Ad Hoc Open-ended Informal Working Group, Letter dated 30 June 2011 to the President of the General Assembly, UN Doc. A/66/119 (2011), Annex, para. 1. 73 74

GA Res. 66/231 of 24 December 2011, para. 166 and Annex.

This paragraph is ‘UN speak’ par excellence: the resolution requires a discussion of the ‘conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on […]’. Linguistically, the language is complex and multi-layered, which makes is difficult to understand how the drafters intended the issues mentioned in para. (b) of the Annex to be read. The practical translation of the text has been to treat the different components as subjects to be addressed – without pondering on the specific implication of the ‘together and as a whole’ formula.

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inter-sessional workshops would be organised with a view to “improv[ing] understanding of the issues and to clarify key questions as an input to the work of the working group.”75 In May 2013, these workshops took place addressing, in a back-to-back formula, the scientific and technical information on the various aspects of the protection and sustainable use of marine biodiversity. A great many experts accepted the co-chairs’ invitation and were prepared to inform participants on various aspects of marine biodiversity and reply to questions from delegations in an effort to contribute to a better understanding of this specialist matter. A total of sixteen panels were organised in which 37 experts provided up-to-date scientific information followed by discussions with participants. One workshop specifically focussed on marine genetic resources, while the other workshop zeroed in on conservation and management tools, area-based management, and environmental impact assessments. The informal report of the workshops, entitled ‘summary of proceedings’ gives an in-depth overview of the issues to be addressed in future debates of the Working Group.76 The same resolution also decided that the Working Group continue its work under the existing mandate and recalled that States are committed to addressing the issue of conservation and sustainable use of marine biodiversity beyond national jurisdiction on an urgent basis before the end of the 69th session of the GA including by the taking of a decision on the development of an international instrument on the Convention.77 During the 68th session, the annual resolution decided to allocate three meetings to the BBNJ Working Group. These meetings aimed at formulating recommendations on the scope, parameters, and feasibility of an international instrument under the Convention.78 This approach is a reflection of steps taken in the process towards the development of the Arms Trade Treaty in the UN, where States were requested to provide their views on the scope, parameters, and feasibility of an arms trade treaty in the period 2006–2007.79 It was felt that this had been a successful approach and 75 GA Res. 67/78 of 11 December 2012, para. 182. Co-Chairs of the Ad Hoc Open-ended Working Group, Summary of Proceedings, UN Doc. A/AC.276/6 (2013). 76

UN Doc. A/AC.276/6 (note 75).

77

GA Res. 67/78 of 11 December 2012, paras. 181–184.

78

GA Res 68/70 (note 33), paras. 198–201. The Resolution provides for three meetings of four days, with a possible further decision on additional meetings. 79

See GA Res. 61/89 of 6 December 2006, para. 1.

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was thus also used for the marine biodiversity process. To the outsider the distinction between the two categories may appear somewhat unusual: if scope and parameters can be agreed, it may be assumed that an international instrument is feasible. Or viewed otherwise: scope and parameters of any international instrument are foremost design questions, and if a common view can be reached, feasibility is likely to be a political question. This distinction in the matters to be discussed must be understood as a step in a political process aimed at bridging the ‘implementation gap’ and ‘regulatory gap’ views. In the first two meetings States discussed their views on the questions of scope and parameters as well as feasibility. Following the discussions at the end of the first meeting in April 2014, the co-chairs presented an informal overview of the issues raised on scope, parameters, and feasibility.80 It is an organised list of expressed views and has not in any way been negotiated. This appendix to the report of the meeting is a broad synthesis that seeks to focus the discussion as the working group moves towards the deadline “by the end of the sixty-ninth session” mentioned in the 2012 United Nations Conference on Sustainable Development (Rio+20) outcome document81 and the subsequent annual resolutions. This overview proved useful as a tool to further structure the debate for the second round of discussions that took place in June 2014.82 By structuring the discussions in accordance with the headings of the list, delegations were challenged to reflect on details and share their thinking at a much more specific level than had been the case in earlier sessions. The final session of the BBNJ Working Group took place from 20–23 January 2015.83 In the end, there was enough good will amongst delegations to come to a compromise text for recommendations to the GA which identifies both matters of substance, as well as further organisational decisions in the early hours of 24 January. 80

Co-Chairs of the Ad Hoc Open-ended Informal Working Group, Letter dated 5 May 2014 to the President of the General Assembly, UN Doc. A/69/82 (2014), Appendix. 81

GA Res. 66/288 (note 71).

82

Co-Chairs of the Ad Hoc Open-ended Informal Working Group, Letter dated 25 July 2014 to the President of the General Assembly, UN Doc. A/69/177 (2014). 83

No summary records of the meeting exist, but see the helpful overview in Earth Negotiations Bulletin, Vol. 25, No. 94 of 26 January 2015; as well as the report of the Co-Chairs, Outcome of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond national jurisdiction and Co-Chairs’ summary of discussions, 20–23 January 2015, UN Doc. A/69/780 (2015).

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The recommendations build on the existing understanding about the need for an instrument dealing with marine biodiversity in areas beyond national jurisdiction, and stress the need to address the topics identified in the ‘package.’ The text reiterates the role of the Convention, and the importance of not undermining existing mandates and competences. The States unconvinced of the need for a new international instrument, did not, in the end, stand in the way of a compromise. The discussion will continue in another format: a preparatory committee (‘prepcom’) is to be established that must make substantive recommendations on elements of a draft text of an international legally binding instrument under the Convention taking into account the work of the working group. This prepcom will start in 2016, and is to report to the GA by the end of 2017. While some delegations had warned the BBNJ Working Group not to start drafting an initial text yet, a decision has now been taken that this will be a task for the prepcom. Before the end of the 72nd session (thus: before autumn 2018), the GA will take a decision on the convening and the starting date of an intergovernmental conference to elaborate the text of an international instrument on the basis of the work of the prepcom. Consequently, a further decision by the GA will be necessary to embark on formal negotiations of an international instrument. This implies that only then may formal negotiations start, some twelve years after the initial meeting of the BBNJ Working Group in February 2006. Tracing their origins from GA Resolution 66/231, containing the 2011‘package,’ and its follow-up in the annual omnibus resolutions, as well as the 2012 Rio+20 text, the recommendations of January 2015 must be understood as solidifying an earlier pactum de contrahendo. In effect, the GA has for some time already been pointing to the desired outcome of formal negotiations of an implementing agreement on marine biodiversity beyond national jurisdiction.

A. Relevance of Other Fora

The approach to marine biodiversity beyond national jurisdiction taken by the GA has been ambitious and all encompassing. The BBNJ Working Group was instructed to consider many different aspects of the matter. However, the biodiversity debate is not only taking place in, or under the auspices of, the GA. There are also developments

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in other fora and other international organisations that influence the debate, and must be taken into account. Of particular relevance are the conclusions of major international conferences such as, most recently, the outcome document of the Rio+20 conference entitled “The Future We Want.”84 This contains the commitment “[…] to address, before the end of the 69th session of the GA, on an urgent basis, the issue of the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the Convention on the Law of the Sea.”85 The language on marine biodiversity in Rio+20 is strong and determined: the formulation does not leave much doubt as to the course its authors intend to take: there is a sense of urgency (“on an urgent basis,” “before the end of the 69th session”) and a clear goal: a decision on the development of a new instrument. Thus, a route towards an Implementing Agreement seems to be on the drawing board, even though a formal decision is yet to be taken on the basis of the final report of the BBNJ to the 69th session of the GA. Another aspect of the BBNJ discussion is that, while marine biodiversity in areas beyond national jurisdiction is a specific and specialist subject, it is clearly also connected to discussions in other fora and other existing instruments such as the Convention on Biological Diversity (CBD),86 its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity,87 the FAO International Treaty on Plant Genetic Resources for Food and Agriculture,88 and the regulatory work taking place within the ISA. The CBD, for instance, does not address marine biodiversity beyond national jurisdiction as such. This follows from Article 4 of the Convention limiting its applicability to areas within the limits of national jurisdiction. Article 5 CBD, however, underlines the need for cooperation with other contracting parties, directly or, where appropriate, through competent international organisations in 84

GA Res. 66/288 (note 71).

85

Ibid., para. 162.

86

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79 (CBD).

87

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, UN Doc. UNEP/CBD/COP/DEC/X/1 (2010) (Nagoya Protocol). 88

International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, UNTS 2400, 379.

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respect of areas beyond national jurisdiction for the conservation and sustainable use of biological diversity. Though the scope of the CBD is limited to territory and maritime zones under national jurisdiction, the CBD COP went on to work on criteria for the creation of Ecologically or Biologically Significant Areas (EBSAs), also for areas beyond national jurisdiction.89 Additionally, there are relevant instruments and rules in regional seas organisations, regional fisheries organisations, and specialised organisations. Given the interconnection between areas within and beyond national jurisdiction there is a need for cooperation and coherence with other relevant instruments, which makes the debate all the more complex. On the other hand, the reflection on solutions found in other fora for related issues may prove to be an inspiration for the BBNJ work. The work on marine biodiversity in the BBNJ Working Group takes place in an environment in which a variety of protective measures already exists, and has been established by specialised organisations or regional organisations. In particular, Marine Protected Areas (MPAs) are an existing mechanism to protect sensitive areas in the oceans, as are the Particularly Sensitive Sea Areas (PSSAs) used by the IMO and the CBD’s EBSAs. The desire to establish a representative network of marine protected areas relies on the existence or establishment of such MPAs and PSSAs. The wish to base approaches to the protection and sustainable use on environmental impact assessments (EIAs) also implies the use of an already existing tool.

B. Role of the European Union

Views on the need to establish a regulatory framework for the protection and sustainable use of marine biodiversity in areas beyond national jurisdiction differ. The European Union (EU) has been one of the early torchbearers for the BBNJ process and has stressed the importance of addressing the protection of marine biodiversity from the start of discussions. This may be seen as a continuation of regulatory activity

89

See Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Tenth Meeting, UN Doc. UNEP/CBD/COP/DEC/X/29 (2010).

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undertaken by the EU in protecting marine biodiversity with respect to high seas fishing within its own jurisdiction.90 During the ICP in 2004, the Irish EU Presidency had already spoken about the need to create an instrument dealing with marine biodiversity, followed by similar remarks at the ICP in 2005 by the Netherlands’ EU Presidency. Similar views had also been expressed at the CBD meetings. For the EU and its Member States, one of the main goals of its participation in the BBNJ Working Group was to start a process leading to the formulation of an Implementing Agreement (under the UNCLOS) on the conservation of marine biodiversity in areas beyond national jurisdiction. While the EU has from the outset been outspoken about its wishes,91 others did not consider there to be a so-called ‘regulatory gap’ but rather an ‘implementation gap.’ From this viewpoint, the combination of various rules in the field of regional fisheries management organisations (RFMOs) and regional seas conventions, when read together; provide an adequate framework for the protection and sustainable use of marine biodiversity beyond national jurisdiction. These are relevant sectoral and regional structures, and views differ as to whether a further integrated governance structure is necessary. What is needed from this perspective is a further strengthening of the implementation of already existing rules. The sum of these existing rules will provide a sufficient framework for the protection and sustainable use of marine biodiversity beyond national jurisdiction if only the existing rules were implemented and enforced. The emphasis put on various aspects in the debate differs: while some delegations focus on the protection of vulnerable marine biodiversity, others tend to give priority to the sustainable use of marine biodiversity. The latter view highlights the potential economic benefits of genetic resources of deep-sea ecosystems. This brings the discussion to questions of access and benefit sharing92 and frequently includes reference to the notion of the ‘common heritage of mankind’ and the question of

90 Ronán Long, The Inexorable Rise of the United Nations Convention on the Law of the Sea within the European Legal Order, in: Michael W. Lodge/Myron H. Nordquist (eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan (2014), 155, 184. 91 This would be an Implementing Agreement under UNCLOS, with participation not limited to the States parties of UNCLOS only, cf. Art. 4 Straddling Fish Stocks Agreement. 92

As addressed in the Nagoya Protocol.

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whether the genetic resources of the deep-sea may be considered to be common heritage of mankind.93 As to the informality of the BBNJ process, one may wonder what exactly is informal about it. The BBNJ process is informal as there is at this stage no agreement within the GA that the development of an Implementing Agreement should formally be on the agenda, but there is an understanding that – for now – a broad majority of States wish to further study the matter in order to take a decision on whether or not to draft an instrument in the future. Thus, the notion of informality in this respect refers to the absence of full political support at this time and the absence of agreement on the future outcome of the discussions. It should be noted that the Working Group is not restricted to deliberations and consultations only – unlike the ICP, the notion of ‘consultative’ does not feature in its name. This ties in with the approach in the annual resolution, that has over time changed from deliberative to an increasingly directive timetable for the presentation of recommendations before the end of the 69th session. The ad hoc aspect implies that, unless working group meetings are allocated by the GA, no further meetings will take place. And finally, the open-ended element refers to the fact that the meeting is open to all members of the UN.

VIII. Commemorating 20 Years of the UNCLOS While there may be criticism of the way in which the UN deals with law of the sea issues, legal debates and political debates at times converge. Let me provide two recent examples to illustrate this point. The debate about the annual resolution in 2013, held at a time when two major powers had failed to participate in proceedings under the UNCLOS dispute settlement procedures, provided an excellent opportunity for the delegation of the Netherlands to reiterate the implications of the comprehensive dispute settlement system in the Convention. Speaking in the GA, its delegate stated that “[b]y becoming a party to the Convention, States explicitly accept its regime for the compulsory peaceful settlement of disputes. This also implies accepting and implementing decisions of the institutions responsible for the settlement of disputes under the UNCLOS, including 93

The present author would consider this view as not being in conformity with the UNCLOS, see Arts. 136 juncto 133 (a) UNCLOS.

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the ITLOS, the ICJ and arbitral tribunals established under the Convention.”94 The delegate of Greece, speaking on behalf of the EU, later echoed this view at the States parties’ meeting. She noted that [t]he EU and its Member States consider the establishment of this elaborate system of compulsory dispute settlement as one of the most important innovations of the Convention. We note with great concern that some States Parties to the Convention have refused to take part in arbitral proceedings brought against them under the Convention. We would like to urge these States Parties to comply with the regime established under the Convention, to participate in these proceedings, and to accept and implement the decisions adopted on the basis of these proceedings.95

Another interesting discussion occurred concerning the (Draft) Declaration on the twentieth anniversary of the entry into force of the 1982 United Nations Convention on the Law of the Sea put before the 24th meeting of the SPLOS in June 2014. While one may question the added value of celebratory declarations occasionally produced by the UN96 they seem to belong to a UN tradition to use such occasions to again draw attention to major international instruments. This declaration, that was never to be, proved to be an excellent opportunity for the EU and its Member States to demonstrate the importance it attaches to the rule of law in ocean’s affairs. Trouble arose in relation to preambular paragraph 4 of the draft resolution,97 which read: “Recalling the universal and unified character of the Convention and that it sets out the legal framework within which all activities in the oceans and seas must be carried out.” The notion of ‘all activities in the oceans […]’ caused difficulties for China. An alternative formulation for this preambular paragraph was suggested that read: “[…] the legal framework within which relevant activities must be carried out in the oceans and seas and affirming that matters not regulated by the Convention continue to be governed by the rules and principles of general international law,”98 but 94

The Netherlands’ intervention in the General Assembly, 9 December 2013.

95

Anastasia Strati, Statement on Behalf of the European Union and its Member States at the 24th Meeting of the States Parties to the United Nations Convention on the Law of the Sea: Commemoration of the 20th Anniversary of the Entry into Force of the UN Convention on the Law of the Sea, 9 June 2014, available at: http://www.eu-un.europa.eu/articles/en/article_15125_en.htm (accessed on 14 November 2014). 96

Draft of 29 May 2014.

97

Just to recall that the General Assembly does not produce binding resolutions but rather recommendations, and that preambular paragraphs are even less binding. 98

Draft of 29 May 2014.

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this found little support. China insisted on the deletion of the word all in the text of the paragraph, which the EU and others did not find acceptable. A compromise could not be reached, and the EU and its Member States decided there was absolutely no reason for the States parties to accommodate the Chinese concerns in the context of a declaration commemorating the 20th anniversary of the entry into force of the UNCLOS. For the EU, any compromise or change in agreed language used for many years in the annual omnibus and the fisheries resolutions as well as in the 2012 Declaration to commemorate the 30th anniversary of the opening for signature of the UNCLOS99 would set an undesirable precedent and would open the proverbial ‘box of Pandora.’ The EU chose not to continue further attempts at reaching consensus. It must be admitted that breaking consensus was not altogether difficult as other paragraphs in the draft Declaration were also problematic or considered not relevant in the context of that text. The matter thus amounted to a reflection on the limited added value of this celebratory draft Declaration. It must be assumed that, after the failure to agree on this celebratory resolution, a similar reflection is taking place within the UN Secretariat. Following this failure to reach consensus, the EU and its Member States in its statement during the commemorative session of 9 June 2014 stated that: […] the Convention governs all activities in the oceans. There may be lack of specific regulation, as in the case of the protection of marine biodiversity in areas beyond national jurisdiction or marine genetic resource, which is inevitable when we are dealing with new uses and challenges which did not exist at the time that the Convention was adopted; but there are no legal gaps. The Convention deals with each jurisdictional zone separately, and, in addition to the specific provisions, there are residual regimes, for example, on the high seas, the residual regime is that of the freedom of the high seas, and within the Exclusive Economic Zone, the residual rule of Article 59. In other words, activities which are not specifically regulated by the Convention are not carried out in a legal vacuum; on the contrary, they are governed by general principles or residual rules.100

99 SPLOS, Declaration on the Thirtieth Anniversary of the Opening for Signature of the 1982 United Nations Convention on the Law of the Sea, SPLOS/249 ( 2012), para. 4 Preamble. 100

See supra, note 94.

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On that same day, the Secretary-General of the UN made remarks to the meeting of States parties that are of a very general nature and barely underline the importance of the Convention as the core instrument for ocean governance.101 The EU interventions demonstrate that – when used wisely – political events in the UN can provide a most useful stage for expressing legal opinions on the current state of the law of the sea. These interventions served to underline the appreciation of developments in the law of the sea by the EU and its Member States, in this particular case the fact that two world powers had failed to either appear before the ITLOS in a provisional measures case under Article 290 UNCLOS or before an arbitral tribunal created under Article 287 (3) UNCLOS respectively. These examples drawn from recent practice indicate that debates in the UN – whether in the formal setting of the GA or at the meeting of States parties – do provide an important forum for presenting views on the interpretation of the Convention, and indeed for the expression of opinio iuris in a global setting. When cleverly used, the more political setting of debates in New York remains a relevant theatre for law of the sea debates.

IX. Conclusion Reflecting on informal and formal processes in the contemporary international law of the sea, it is obvious that debates take place in a dispersed manner. With respect to jurisdictional issues, it may be expected that particularly the States most concerned will take action to ensure the proper interpretation of the law, also with a view to safeguarding their interests. This does not exclude the importance attached to jurisdictional issues in general by all States, but the private interest of the States most concerned will be a trigger for continuous monitoring of the implementation of the law of the sea with respect to their interests. The mechanism for the debate of such issues is implied in the jurisdictional entitlements. These are furthermore

101

Statement of the UN Secretary General Ban Ki-moon, Secretary-General’s remarks to Meeting of States Parties to the UN Convention on the Law of the Sea on the 20th Anniversary of its Entry into Force, New York, 9 June 2014, available at: http://www.un.org/sg/statements/index.asp?nid=7759 (accessed on 14 November 2014).

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supported by the dispute settlement mechanism in the Convention and include other dispute settlement mechanisms for States not yet parties to the Convention. For governance issues where the actions of States are not solely based on the individual interests of States but rather on the joint responsibility for the governance of the global commons, the absence of a forum may be hampering progress towards the protection and sustainable use of the oceans. While the annual report provides a unique and solid overview of the state of affairs in this field, debate on this report is largely absent in the GA even if delegates may refer to it in their statements in plenary or in their contributions during the drafting of the resolution. In the ICP, there is but limited possibility to discuss some parts of the report - one or two chapters per session. This is regrettable as the report could potentially be a very useful tool for a comprehensive discussion on oceans and law of the sea as a whole in a general and global forum. Superficially, the omnibus resolution deals with the report, but the GA’s work does not really address the content in a very profound manner. The annual resolution is a phenomenon itself, in terms of the scope and the ever-growing length of this instrument. The negotiation process will lead to directions for future work, and this may include the UN initiating new processes in the field of oceans and law of the sea. So far, little research has been devoted to this resolution, more attention and a better understanding of what this resolution really does is merited. The disadvantage of the current approach is that a forum for a general and substantive debate in which a more profound approach may be possible is lacking. Even if, as Oude Elferink suggests,102 the roles of the States parties’ meeting and of the GA are complementary, one cannot but note that in practice this approach does not cover the whole breadth of the law or all of the governance issues. In practice, the absence of a forum for a general debate on the law of the sea does not seem to have worried practitioners: had there been a specific need, such a forum would have been set up, for instance, by extending the role of the SPLOS. The GA would seem to have stepped into this void. Yet even if the annual resolution has a broad scope, it is not developed on the basis of a comprehensive substantive debate but rather through a discussion focusing on agreement about language for the resolution. Also, and not discussed in

102

Oude Elferink (note 5), 312.

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this contribution, a great many issues are being addressed by the specialised organisations or regional organisations and programmes. On the basis of existing practice, it may be questioned whether there is an actual need for a general substantive debate at all. It may appear that the current set up with ad hoc processes is considered sufficient by those involved. But when contemporary issues of concern are addressed under the heading “The Future We Want,” it is perhaps time to again consider the related question of whether we also have the governance structure we want for today’s oceans.

The Institutional Application of the Law of Dédoublement Fonctionnel in Marine Environmental Protection: A Critical Assessment of Regional Regimes YOSHIFUMI TANAKA(

ABSTRACT: The protection of community interests involving the vital needs for the survival of mankind as a whole has become increasingly important in the international law of the sea. A crucial issue to be examined in this context concerns effective mechanisms for protecting community interests in the law. In a broad perspective, four models for protecting community interests can be identified in international law: (i) protection of community interests through international institutions in a centralised manner, (ii) protection of community interests through the individual application of the law of dédoublement fonctionnel, (iii) protection of community interests through the institutional application of the law of dédoublement fonctionnel, (iv) protection of community interests through international adjudication. Of the four models, this article will explore the third model, i.e. an institutional application of the law of dédoublement fonctionnel. In particular, it will examine the question as to whether and to what extent regional institutions and arrangements can contribute to protect marine biological diversity and living resources by focusing on two regional institutions: the OSPAR Convention and the North East Atlantic Fisheries Commission. KEYWORDS: Community Interests, Dédoublement Fonctionnel, High Seas, Marine Environmental Protection, Marine Protected Areas, NEAFC, OSPAR, Regional Regimes

( PhD, DES (Graduate Institute, Geneva), LLM (Hitotsubashi University, Tokyo). Professor of International Law with Specific Focus on the Law of the Sea, Faculty of Law, University of Copenhagen. This article is based on the present author’s presentation at the Conference on the Law of the Sea in the 21st Century, Walther Schücking Institute for International Law, Christian Albrechts University Kiel, Germany, on 7 March 2014. The author wishes to thank the OSPAR Commission for its permission to reproduce the figures of the 2012 Status Report on the OSPAR Network of Marine Protected Areas (2013). This Report was coordinated on behalf of OSPAR by Bundesamt für Naturschutz (Germany). The author would like to dedicate this article to Professor Tetsuo Sato, Hitotsubashi University, Tokyo, for his sixtieth anniversary.

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I. Introduction One of the remarkable features of contemporary international law is thought to be the emergence of the concept of ‘common interests of the international community as a whole’ or ‘community interests.’1 As Judge Simma stated, international law has undoubtedly entered a stage at which it does not exhaust itself in correlative rights and obligations running between states, but also incorporates common interests of the international community as a whole, including not only states but all human beings.2

Reflecting on the trend of international law in general, it appears that the protection of community interests involving the vital needs for the survival of mankind as a whole has become increasingly important in the international law of the sea. The protection of the marine environment, including the conservation of marine living resources and biological diversity, is a case in point.3 Given that the healthy marine environment provides a foundation for all life, it could well be said that the protection of the marine environment, including its living resources and biological diversity, constitutes a common interest of the international community as a whole. Here it is relevant to note that the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), in its first advisory opinion of 2011, affirmed the erga

1

Simma tentatively defines ‘community interests’ as “a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States,” Bruno Simma, From Bilateralism to Community Interest in International Law, Recueil des Cours de l’Academie de Droit International (RCADI) 250 (1994), 217, 233. As Simma himself pointedly observed, however, the existence of common interests does not derive from scientific abstraction but rather flows from the recognition of concrete problems. In this contribution, the term ‘common interests of the international community’ and ‘community interests’ will be used interchangeably. 2

Bruno Simma, Universality of International Law from the Perspective of a Practitioner, European Journal of International Law (EJIL) 20 (2009), 265, 268. See also Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium, RCADI 316 (2005), 9, 35; Santiago Villalpando, The Legal Dimension of the International Community: How Community Interests Are Protected in International Law, EJIL 21 (2010), 387. 3 As the International Tribunal for the Law of the Sea (ITLOS) stated, “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment,” Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Request for Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 280, para. 70. The same will apply to marine biological diversity. Thus, in this article, the concept of marine environmental protection comprises the conservation of marine living resources and biological diversity.

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omnes character of the obligations respecting the preservation of the environment of the high seas and the Area, i.e. the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.4 An important issue to be examined in this context concerns effective mechanisms for protecting community interests in the law. Traditionally, compliance with rules of international law has been ensured primarily by the principle of reciprocity. Whilst this principle has more than one meaning, it can be defined as “the relationship between two or more states according each other identical or equivalent treatment.”5 In essence, the principle of reciprocity seeks to secure interests of each State on the basis of the symmetry of rights and obligations.6 Given that reciprocity is deeply rooted in a decentralised nature of the international legal system, this principle will not lose its importance as a principal mechanism for securing compliance with rules of international law. In certain branches of international law, such as the protection of human rights and the global environment, however, the principle of reciprocity is seen as not being effective in securing compliance with relevant rules. For instance, treaties concerning the protection of the marine environment do not seek to ensure reciprocal engagements and advantages for the mutual benefit of the contracting parties. Hence, the effectiveness of marine environmental protection cannot be supported by relying exclusively on the principle of reciprocity.7 Given that the principle of reciprocity essentially governs bilateral and contractual relations between States,8 it may have to be accepted that the traditional compliance mechanism on the basis of the principle

4

ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10, para. 180. For an analysis of State responsibility for the breach of obligation erga omnes in the Area, see Yoshifumi Tanaka, Obligations and Liability of Sponsoring States Concerning Activities in the Area: Reflections on the ITLOS Advisory Opinion of 1 February 2011, Netherlands International Law Review 60 (2013), 205, 223–229. 5

Bruno Simma, Reciprocity, EPIL IV (2000), 29, 30.

6

Hedley Bull, The Anarchical Society: A Study of Order in World Politics (3rd ed. 2002), 134; Michel Virally, Le Principe de Réciprocité dans le Droit International Contemporain, RCADI 122 (1967), 1, 19. 7

Yoshifumi Tanaka, The International Law of the Sea (2012), 255.

8

See also Simma (note 1), 232–233.

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of reciprocity contains an inherent limit in the protection of community interests.9 Thus, there is a need to explore mechanisms for protecting these interests without relying only on the principle of reciprocity. In approaching this issue, the role of regional institutions and arrangements in marine environmental protection deserves serious consideration as a mechanism for protecting community interests through international cooperation between States.10 Against that background, this article will seek to examine the question as to whether and to what extent regional regimes can be considered as an effective means to protect community interests concerning marine environmental protection.

II. Four Models for Protecting Community Interests In a broad perspective, four models for protecting community interests can be identified in international law:11 (i)

Protection of community interests through international institutions in a centralised manner

(ii)

Protection of community interests through the individual application of the law of dédoublement fonctionnel

(iii) Protection of community interests through the institutional application of the law of dédoublement fonctionnel (iv) Protection of community interests through international adjudication.

9

Andreas Paulus, Reciprocity Revisited, in: Ulrich Fastenrath et al. (eds.), From Bilateralism to Community Interest: Essays in Honor of Judge Bruno Simma (2011), 113, 123. See also Villalpando (note 2), 410. 10 11

In this contribution, the term ‘regional regimes’ refers to ‘regional institutions and arrangements’.

See also Yoshifumi Tanaka, Protection of Community Interests in International Law: The Case of the Law of the Sea, Max Planck Yearbook of United Nations Law 15 (2011), 329, 374–375. The present writer’s view in this article was slightly modified and the fourth model was newly added.

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The best example of the first model is the International Seabed Authority (ISA) governing the Area.12 As Article 136 United Nations Convention on the Law of the Sea (UNCLOS) declares, “[t]he Area and its resources are the common heritage of mankind” and all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the ISA shall act pursuant to Article 137 (2) UNCLOS. Accordingly, activities in the Area shall be organised, carried out, and controlled by the ISA for the benefit of mankind as a whole.13 As a consequence, common interests of mankind arising from seabed activities in the Area are to be promoted through the ISA in a centralised manner. Although this model can be regarded as an innovation in international law, it remains exceptional, and it appears difficult to expect that an organisation similar to the ISA will develop in other branches of the law in the near future. The second model concerns the protection of community interests by the individual application of the law of dédoublement fonctionnel. This model rests on Georges Scelle’s theory of ‘la loi du dédoublement fonctionnel.’14 According to Scelle, realisation of law in every society must rest on three functions, that is, legislative, judicial, and enforcement functions.15 However, the mode to perform these functions and its efficacy vary according to societies.16 In the supra-State society (‘société superétatique’), social functions are performed by supra-State organs, namely, ‘les agents et gouvernants superétatiques.’ In this type of society, one can find federalism in a broad sense. In the inter-State order (l’ordre interétatique), however, there is no centralised organ to 12

Ibid., 343–349. ‘Area’ means “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction,” Art. 1 (1) United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 13

Arts. 149 (1) and 153 (1) UNCLOS.

14

Concerning the theory of the law of dédoublement fonctionnel, see Georges Scelle, Le Phénomène Juridique du Dédoublement Fonctionnel, in: Walter Schätzel/Hans Jürgen Schlochauer (eds.), Rechtsfragen der internationalen Organisation: Festschrift für Hans Wehberg zu seinem Geburtstag (1956), 324; Antonio Cassese, Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in International Law, EJIL 1 (1990), 210; Maki Nishiumi, Dédoublement Fonctionnel de l’Etat et Droit International Contemporain: D’après la Pensée de Georges Scelle, Yearbook of World Law 20 (2001), 77 (in Japanese); Oliver Diggelmann, Georges Scelle (1878–1961), in: Bardo Fassbender/Anne Peters (eds.), The Oxford Handbook of the History of International Law (2012), 1162, 1164–1165; Tanaka (note 11), 352–353. 15

Georges Scelle, Manuel de Droit International Public (1948), 15 (Manuel); see also id., Précis de Droit des Gens: Principes et Systématique, Première Partie (1932), 18 (Précis). 16

Ibid. (Précis), 20.

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perform the three social functions. Accordingly, these functions are to be performed by State organs, i.e. les agents et gouvernants étatiques. In Scelle’s view, the organs perform a dual role, i.e. ‘dédoublement fonctionnel.’17 Where State organs perform their functions in the municipal legal order, they are considered as national organs. Where State organs perform their functions in the international legal order, they are regarded as international organs.18 The dual role is called the law of dédoublement fonctionnel.19 Under the second model, community interests are to be protected by each State which would assume the role of an advocate of the international community. This is essentially a decentralised model. Whilst one can detect not a few examples on this matter in the UNCLOS,20 the most innovative example is the port State jurisdiction with regard to the regulation of vessel-source marine pollution under Article 218 (1) UNCLOS. As discussed elsewhere, the concept of port State jurisdiction is designed to provide a port State with the power to exercise enforcement jurisdiction against foreign ships in cases of vessel-source pollution that take place outside marine spaces under national jurisdiction of that State. As a consequence, the port State is entitled to take enforcement action against the vessel even where a violation was committed on the high seas regardless of direct damage to the port State. It may be said that under Article 218 UNCLOS, the port State would assume the role of an organ of the international community in marine environmental protection.21 In this sense, port State jurisdiction seems to provide an interesting example of Scelle’s theory of ‘la loi du dédoublement fonctionnel.’22 17

Id., Règles Générales du Droit de la Paix, RCADI 46 (1933), 327, 356.

18

Ibid., 358–359.

19

For Scelle’s definition of ‘la loi du dédoublement fonctionnel,’ see Scelle (note 14), 331.

20

For instance, the universal jurisdiction over pirate ship or aircraft provided in Art. 105 UNCLOS may be considered as an example of the individual application of dédoublement fonctionnel. See also Arts. 24 (2) and 44 UNCLOS. 21

Tanaka (note 11), 350–356; Tatjan Keselj, Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding, Ocean Development and International Law (ODIL) 30 (1999), 127, 136; Christian Tams, Individual States as Guardians of Community Interests, in: Fastenrath et al. (eds.) (note 9), 379, 397. 22 Daniel Vignes, Le Navire et les Utilisations Pacifiques de la Mer: La Jurisdiction de l’Etat du Port et le Navire en Droit International, in: Société Française pour le Droit International (ed.), Colloque de Toulon: Le Navire en Droit International (1992), 127, 150; Chiuki Mizukami, Law of the Sea (2005), 252 (in Japanese).

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The third model relates to the protection of community interests through the institutional application of the law of dédoublement fonctionnel. This model seeks to protect community interests through international institutions and arrangements. Whilst the institutional application of the law of dédoublement fonctionnel (model III) is more institutionalised than the individual application of the law of dédoublement fonctionnel (model II), it is less centralised than model I. In this sense, it may be said that model III lies in between model I and model II. As discussed elsewhere, weaknesses of the individual application of the law of dédoublement fonctionnel include the lack of incentive for States, the lack of coordination, and the arbitral use of the concept of community interests.23 The institutional application of the law of dédoublement fonctionnel seeks to overcome these deficiencies. As will be discussed below, regional institutions and arrangements concerning marine environmental protection provide a useful insight into the institutional application of the law of dédoublement fonctionnel. The fourth model concerns the protection of community interests by international courts and tribunals. It is beyond serious argument that the primary task of international courts and tribunals consists in the settlement of international disputes. Furthermore, international adjudication is bilateral in nature, whilst community interests concern the international community as a whole. Accordingly, it may have to be accepted that international adjudication contains an inherent limitation with regard to the protection of community interests. Notwithstanding this, rules and obligations relating to the protection of community interests, such as obligations erga omnes, have not infrequently been at issue in the jurisprudence of international courts and tribunals.24 In the context of the law of the sea, notably the ITLOS made strong commitments in the protection of the marine environment and conservation of marine living resources by prescribing provisional measures.25 Therefore, it appears that the role of international courts and tribunals in the protection of community interests deserves consideration.

23

Tanaka (note 11), 354.

24

See, for instance, International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports 2012, 422, paras. 69–70. 25 Yoshifumi Tanaka, Juridical Insights into the Protection of Community Interests through Provisional Measures: Reflections on the ITLOS Jurisprudence, Global Community Yearbook of International Law and Jurisprudence (2014) (forthcoming).

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Of the four models for protecting community interests, this article will explore the third model, i.e. an institutional application of the law of dédoublement fonctionnel. In particular, it will examine the question as to whether and to what extent regional institutions and arrangements can contribute to protect marine biological diversity and living resources by focusing on two regional institutions: the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention)26 and the North East Atlantic Fisheries Commission (NEAFC).

III. Regional Institutions and Conservation of Marine Biological Diversity: A Case of the OSPAR Convention A. General Considerations

The OSPAR Convention was adopted on 22 September 1992 and entered into force on 25 March 1998. Under Article 1 (a) OSPAR Convention, the maritime area covered by the Convention includes “those parts of the Atlantic and Arctic Oceans and their dependent seas which lie north of 36° north latitude and between 42° west longitude and 51° east longitude”27 and “part of the Atlantic Ocean north of 59° north latitude and between 44° west longitude and 42° west longitude.” It is estimated that some 50% of the OSPAR Maritime Area is located in areas beyond national jurisdiction.28 26 Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, UNTS 2354, 67 (OSPAR Convention). 27 But “the Baltic Sea and the Belts lying to the south and east of lines drawn from Hasenore Head to Gniben Point, from Korshage to Spodsbjerg and from Gilbjerg Head to Kullen” are excluded from the OSPAR maritime area, Art. 1 (a)(i)(1) OSPAR Convention. 28 OSPAR Commission, Meeting of the OSPAR Commission (OSPAR) Brussels: 22–26 June 2009, Summary Record, 09/22/1-E, Annex 6: OSPAR’s Regulatory Regime for Establishing Marine Protected Areas (MPAs) in Areas Beyond National Jurisdiction (ABNJ) of the OSPAR Maritime Area, 3, para. 2.12. Other documents suggest that about 40% of the OSPAR Maritime Area is the high seas. Petra Drankier, Marine Protected Areas in Areas beyond National Jurisdiction, International Journal for Marine and Coastal Law (IJMCL) 27 (2012), 291, 312–313; Sabine Christiansen, High Seas MPAs: Regional Approaches and Experience, Background Document for the Side Event at the 12th UNEP Global Meeting of the Regional Seas Conventions and Actions Plans, 20 September 2010, UNEP (DEPI)/RS.12/INF.6.RS, 6, available at: http://www.unep.org/regionalseas/globalmeetings/12/inf.06high-seas-side-event.pdf (accessed on 23 October 2014).

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The OSPAR Convention is an evolutionary instrument and its material scope is expanding over time. It provides regulation of land-based pollution (Article 3/Annex I), dumping or incineration (Article 4/Annex II), pollution from offshore sources (Article 5/Annex III), and pollution from other sources (Article 7).29 Although Article 2 (1)(a) OSPAR Convention refers to the conservation of marine ecosystems in a general manner,30 the original text of the OSPAR Convention did not make for further precision on this issue. Later on, however, the Ministerial Meeting of the OSPAR Commission adopted a new Annex V on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area and a new Appendix 3 on Criteria for Identifying Human Activities for the Purpose of Annex V.31 The obligation to conserve marine biological diversity was much amplified by Annex V as well as Appendix 3. Furthermore, the 2003 OSPAR Strategy on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area required the Commission to develop the programmes and measures needed for the protection and conservation of the ecosystems and biological diversity of the maritime area.32 In 2010,

29

The OSPAR Convention does not address vessel-source pollution, which is regulated by the International Convention for the Prevention of Pollution from Ships, 2 November 1973, UNTS 1340, 184, as amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (with Annexes, Final Act and International Convention of 1973), 17 February 1978, UNTS 1340, 61 (MARPOL 73/78). 30

Rainer Lagoni, Monitoring Compliance and Enforcement of Compliance Through the OSPAR Commission, in: Peter Ehlers/Elisabeth Mann-Borgese/Rüdiger Wolfrum (eds.), Marine Issues: From a Scientific, Political and Legal Perspective (2002), 155, 157–158. 31 The OSPAR Commission is made up of the representatives of each of the contracting parties under Art. 10 (1) OSPAR Convention. In accordance with Art. 15 (5) OSPAR Convention, Annex V entered into force on 30 August 2000 for Finland, Spain, Switzerland, Luxembourg, the European Community, the United Kingdom, and Denmark; on 5 October 2000 for Sweden; on 18 July 2001 for Iceland; on 22 July 2001 for Norway; on 24 August 2001 for the Netherlands; on 13 January 2002 for Germany; on 21 June 2003 for Ireland; on 24 November 2004 for France; on 28 August 2005 for Belgium; on 25 March 2006 for Portugal. See also Wolff Heintschel von Heinegg, The Development of Environmental Standards for the North-East Atlantic, Including the North Sea, in: Ehlers/MannBorgese/Wolfrum (eds.) (note 30), 135, 141–143. 32 OSPAR Commission, 2003 Strategies of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic, para. 2.1, available at: http://www.ospar.org/html_ documents/ospar/html/revised_ospar_strategies_2003.pdf (accessed on 23 October 2014).

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the protection of marine biological diversity and ecosystems was incorporated in the North-East Atlantic Environment Strategy.33

B. The Creation of MPAs in Areas beyond National Jurisdiction in the North-East Atlantic

When considering the role of the OSPAR Convention in the conservation of marine biological diversity, the creation of marine protected areas (MPAs) merits particular attention.34 The Biodiversity Committee of the OSPAR Convention defines MPAs as: An area within the maritime area for which protective, conservation, restorative or precautionary measures, consistent with international law have been instituted for the purpose of protecting and conserving species, habitats, ecosystems or ecological processes of the marine environment.35

33

Id., The North-East Atlantic Environment Strategy: Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020, OSPAR Agreement 2010-3, 7–11, available via: http://www.ospar.org/v_measures/browse.asp?menu=00530418000000_ 000000_000000 (accessed on 23 October 2014). 34 For a thorough analysis of the OSPAR MPAs, see Nele Matz-Lück/Johannes Fuchs, The Impact of OSPAR on Protected Area Management beyond National Jurisdiction: Effective Regional Cooperation or a Network of Paper Parks?, Marine Policy 49 (2014), 155. 35 OSPAR Commission, Recommendation 2003/3 on a Network of Marine Protected Areas (consolidated text), para. 1.1. All OSPAR Recommendations are available via: http://www.ospar.org/v_ measures/browse.asp?menu=00520417000000_000000_000000 (accessed on 23 October 2014).

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Source: OSPAR Commission, 2012 Status Report on the OSPAR Network of Marine Protected Areas (2013), Publication Number: 618/2013, 27, Figure 10. Figure 1

By 31 December 2012, the OSPAR Network of MPAs comprised a total of 333 MPAs.36 Among these MPAs, 324 MPAs are situated within marine spaces under national jurisdiction of the contracting parties and seven MPAs are situated in areas 36 Id., 2012 Status Report on the OSPAR Network of Marine Protected Areas (2013), 4, 4 and 9, available at: http://www.ospar.org/documents/dbase/publications/p00618/p00618_2012_mpa_status %20report.pdf (accessed on 1 December 2014).

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beyond national jurisdiction (see Figure 1). Two MPAs are encompassed by an area subject to a submission to the Commission of the Limits of the Continental Shelf (CLCS), while the water column remains unprotected.37 Among these MPAs, particular focus must be on MPAs in areas beyond national jurisdiction.38 These MPAs are: (i)

Milne Seamount Complex Marine Protected Area,39

(ii)

Charlie-Gibbs South Marine Protected Area,40

(iii) Altair Seamount High Seas Marine Protected Area,41 (iv) Antialtair Seamount High Seas Marine Protected Area,42 (v)

Josephine Seamount High Seas Marine Protected Area,43

(vi) MAR North of the Azores High Seas Marine Protected Area,44 and (vii) Charlie-Gibbs North High Seas Marine Protected Area.45 The OSPAR Decisions establishing the MPAs (i) to (vi) entered into force on 12 April 2011, and the Decision creating (vii) Charlie-Gibbs North High Seas MPA

37

Ibid., 9.

38

For an analysis of high seas MPAs prior to 2012, see Yoshifumi Tanaka, Reflections on High Seas Marine Protected Areas: A Comparative Analysis of the Mediterranean and the North-East Atlantic Models, Nordic Journal of International Law 81 (2012), 295; Drankier (note 28), 312–318 in particular; Robin Churchill, The Growing Establishment of High Seas Marine Protected Areas: Implications for Shipping, in: Richard Caddell/Rhidian Thomas (eds.), Shipping, Law and the Marine Environment in the 21st Century (2013), 53. 39

OSPAR Decision 2010/1 on the Establishment of the Milne Seamount Complex Marine Protected Area, OSPAR 10/23/1-E, Annex 34. All OSPAR Decisions are available via: http://www.ospar. org/v_measures/browse.asp?menu=00510416000000_000000_000000 (accessed on 23 October 2014). 40 OSPAR Decision 2010/2 on the Establishment of the Charlie-Gibbs South Marine Protected Area, OSPAR 10/23/1-E, Annex 36. 41 OSPAR Decision 2010/3 on the Establishment of the Altair Seamount High Seas Marine Protected Area, OSPAR 10/23/1-E, Annex 38. 42

OSPAR Decision 2010/4 on the Establishment of the Antialtair Seamount High Seas Marine Protected Area, OSPAR 10/23/1-E, Annex 40. 43

OSPAR Decision 2010/5 on the Establishment of the Josephine Seamount High Seas Marine Protected Area, OSPAR 10/23/1-E, Annex 42. 44

OSPAR Decision 2010/6 on the Establishment of the MAR North of the Azores High Seas Marine Protected Area, OSPAR 10/23/1-E, Annex 44. 45

OSPAR Decision 2012/1 on the Establishment of the Charlie-Gibbs North High Seas Marine Protected Area, OSPAR 12/22/1, Annex 6.

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entered into force on 14 January 2013.46 Those MPAs can be divided into two principal categories. The first category concerns MPAs which are situated entirely in areas beyond national jurisdiction with the seabed, subsoil, and the water column being protected collectively by all contracting parties to the OSPAR Convention. This category contains (i) Milne Seamount Complex MPA and (ii) Charlie-Gibbs South MPA. The second category relates to MPAs which are situated on the high seas, being protected collectively by all contracting parties, but their seabed and subsoil may, wholly or partly, be subject to the jurisdiction of the contracting parties concerned. The seabed and subsoil of (iii) Altair Seamount High Seas MPA, (iv) Antialtair Seamount High Seas MPA, (v) Josephine Seamount High Seas, and (vi) MAR North of the Azores High Seas MPA are all encompassed by the Portuguese submission to the CLCS for the establishment of the outer limits of the continental shelf beyond 200 nautical miles. In this regard, Portugal would assume the responsibility to take measures for the protection of the seabed and subsoil within these MPAs whilst their superjacent waters, which remain part of the high seas, are to be protected by the OSPAR Commission. In the case of (vii) Charlie-Gibbs North High Seas MPA, the water column in the area is to be collectively protected by OSPAR contracting parties, but parts of the seabed subjacent to the MPAs are encompassed within Iceland’s claim over the continental shelf beyond the limits of 200 nautical miles.47 In addition, the seabed and subsoil of the Rainbow Hydrothermal Vent Field, Hatton Bank SAC (Special Areas of Conservation), and parts of the North West Rocall SAC are all situated in areas subject to a submission of a contracting party to the CLCS. Accordingly, the seabed of these areas is under the protection of the respective contracting party, although the superjacent water of these areas remains without any protective status.48 In relation to the creation of the OSPAR MPAs on the high seas, seven recommendations on the management of each MPA were adopted:49 46 OSPAR Decisions are legally binding upon the contracting parties to the OSPAR Convention, Art. 13 (2) OSPAR Convention. 47

OSPAR Commission (note 36), 28.

48

Ibid.

49

Recommendations are not binding under Art. 13 (5) OSPAR Convention.

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(i)

OSPAR Recommendation 2010/12 on the Management of the Milne Seamount Complex MPA,50

(ii)

OSPAR Recommendation 2010/13 on the Management of the CharlieGibbs South MPA,51

(iii) OSPAR Recommendation 2010/14 on the Management of the Altair Seamount High Seas MPA,52 (iv) OSPAR Recommendation 2010/15 on the Management of the Antialtair Seamount High Seas MPA,53 (v)

OSPAR Recommendation 2010/16 on the Management of the Josephine Seamount Complex High Seas MPA,54

(vi) OSPAR Recommendation 2010/17 on the Management of the Mid-Atlantic Ridge North of the Azores High Seas MPA,55 and (vii) OSPAR Recommendation 2012/1 on the Management of the CharlieGibbs North High Seas Marine Protected Area.56 Recommendations (i) to (vi) have effect from the day of entry into force of the OSPAR Decisions, i.e. 12 April 2011, and Recommendation (vii) has effect from 14 January 2013. These recommendations contain some commonalities which can be summarised as follows. First, purpose and scope: The OSPAR Recommendations seek to guide OSPAR contracting parties in their actions and in the adoption of measures to protect and 50 OSPAR Recommendation 2010/12 on the Management of the Milne Seamount Complex MPA, OSPAR 10/23/1-E, Annex 35. 51 OSPAR Recommendation 2010/13 on the Management of the Charlie-Gibbs South MPA, OSPAR 10/23/1, Annex 37. 52 OSPAR Recommendation 2010/14 on the Management of the Altair Seamount High Seas MPA, OSPAR 10/23/1-E, Annex 39. 53

OSPAR Recommendation 2010/15 on the Management of the Antialtair Seamount High Seas MPA, OSPAR 10/23/1-E, Annex 41. 54

OSPAR Recommendation 2010/16 on the Management of the Josephine Seamount Complex High Seas MPA, OSPAR 10/23/1-E, Annex 43. 55

OSPAR Recommendation 2010/17 on the Management of the Mid-Atlantic Ridge north of the Azores High Seas MPA, OSPAR 10/23/1-E, Annex 45. 56

OSPAR Recommendation 2012/1 on the Management of the Charlie-Gibbs North High Seas marine Protected Area, OSPAR 12/22.1, Annex 7.

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conserve the ecosystems and the biological diversity of the respective MPA with a view to achieving the general and specific conservation objectives in Annex 2 that have been endorsed for this area by the OSPAR Commission. The OSPAR Recommendations should apply without prejudice to the rights and obligations of coastal States, other States, and international organisations in accordance with the UNCLOS and customary international law. Second, programmes and measures: The management of human activities in each MPA should be guided by the general obligations provided in Article 2 OSPAR Convention, the Ecosystem Approach, and the conservation vision and objectives in Annex 2. Here it is of particular importance to note that the measures taken by the contracting parties in the MPAs are combined to the binding obligations provided in the OSPAR Convention. This can be viewed as an attempt to strengthen the legal impact of the OSPAR Recommendations.57 In order to achieve the conservation objectives, the OSPAR Recommendations require the contracting parties to promote awareness at a national level, information building, the application of the OSPAR Code of Conduct for Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Area by national research vessels or national research institutions, publicity of new developments, and engagement with third parties and relevant international organisations with a view to promoting the delivery of the conservation objectives.58 Third, conservation vision and objectives: The conservation vision is to maintain and, where appropriate, restore the integrity and natural quality of the functions and biodiversity of the various ecosystems of each MPA so that they are the result of natural environmental quality and ecological processes. Best available scientific knowledge and the precautionary principle form the basis for conservation. Each OSPAR Recommendation enumerates five general conservation objectives:59 (i)

57

To protect and conserve the range of habitats and ecosystems including the water column of the MPA for resident, visiting, and migratory species as well as the marine communities associated with key habitats,

Matz-Lück/Fuchs (note 34), 160.

58

Concerning the management of the OSPAR MPAs, see also OSPAR Guidelines for the Management of Marine Protected Areas in the OSPAR Maritime Area (Reference Number: 2003-18), available via: http://www.ospar.org/content/content.asp?menu=00700302210000_000000_000000 (accessed on 7 January 2015). 59

These general conservation objectives are essentially the same in each Recommendation.

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(ii)

To prevent loss of biodiversity, and promote its recovery where practicable so as to maintain the natural richness and resilience of the ecosystems and habitats,

(iii) To prevent degradation of and damage to species, habitats, and ecological processes in order to maintain the structure and functions – including the productivity – of the ecosystems, (iv) To restore the naturalness and richness of key ecosystems and habitats, in particular those hosting high natural biodiversity, (v)

To provide a refuge for wildlife within which there is minimal human influence and impact.

Fourth, implementation of the Recommendations: The OSPAR Recommendations require that contracting parties should report annually, by 31 December, to the OSPAR Commission on any specific action and/or measure that has been undertaken in that year nationally and/or internationally to implement the management measures in section 3. It follows that implementation of the Recommendations is to be supervised by the OSPAR Commission.

C. Commentary

1. General Observations The creation of MPAs in areas beyond national jurisdiction aims to protect biological diversity in the North-East Atlantic, not to safeguard individual interests of each contracting party of the OSPAR Convention. It can be argued that contracting parties to the Convention, along with the OSPAR Commission, attempt to collectively protect marine biological diversity in areas beyond national jurisdiction as an advocate of the international community as a whole. In this regard, it is of particular importance to note that the OSPAR Convention is equipped with a relatively advanced mechanism for ensuring compliance with its provisions and that compliance with the Convention is to be supervised and controlled by the OSPAR Commission.60 60 Arts. 10 and 23 OSPAR Convention. On the other hand, the OSPAR Commission does not possess enforcement jurisdiction against a contracting party. Lagoni (note 30), 161–162. See also Juliane

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Under Article 23 (a) OSPAR Convention, the Commission is empowered to “assess their compliance with the Convention and the decisions and recommendations adopted thereunder” on the basis of the periodical reports referred to in Article 22 OSPAR Convention and any other report submitted by the contracting parties. Furthermore, it can “decide upon and call for steps to bring about full compliance with the Convention, and decisions adopted thereunder, and promote the implementation of recommendations, including measures to assist a Contracting Party to carry out its obligations” by virtue of Article 23 (b) OSPAR Convention. International supervision by the OSPAR Commission can be considered as an important tool to secure consistency of conservation measures taken by contracting parties to the OSPAR Convention. It also contributes to overcome deficiencies of the individual application of the law of dédoublement fonctionnel. Hence, the creation of the OSPAR MPAs in areas beyond national jurisdiction can be considered as an example of the institutional application of the law of dédoublement fonctionnel. Whilst the importance of the role of the OSPAR Convention regime in conservation of marine biological diversity cannot be overemphasised, the OSPAR MPAs seem to contain some issues which need further consideration. Five issues merit highlighting in particular.61

2. The Legality of the OSPAR MPAs The first issue concerns the legality of the establishment of MPAs in areas beyond national jurisdiction. In considering this issue, a distinction must be made between MPAs located within the potential exclusive economic zone (EEZ) of the coastal State (high seas in a broad sense) and those located in the high seas beyond 200 nautical miles (high seas in a strict sense).62 The best example of the MPAs in the broad sense is the Pelagos Sanctuary for marine mammals in the Mediterranean Sea. The Pelagos Sanctuary was established by the 1999 Agreement on the Creation of a

Hilf, The Convention for the Protection of the Marine Environment of the North-East Atlantic: New Approaches to an Old Problem?, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 55 (1995), 580, 593. 61

See also Tanaka (note 38), 315–324.

62

Tanaka (note 7), 328.

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Mediterranean Sanctuary for Marine Mammals.63 Whilst the Sanctuary covers part of the high seas, it falls under the potential EEZ of either of the parties to the Agreement.64 Although the UNCLOS remains mute on conservation of biological diversity in the EEZ, marine biological diversity can be included in the scope of the natural resources in Article 56 (1)(a) UNCLOS and the living resources in Article 61 UNCLOS because such diversity concerns the variability among marine living organisms. Furthermore, Article 56 (1)(b)(iii) UNCLOS confers on the coastal State jurisdiction with regard to the protection and preservation of the marine environment. Moreover, the coastal State is under the obligation to protect and preserve the marine environment under Article 192 UNCLOS. The coastal State is also obliged to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or endangered species and other forms of marine life in its EEZ under Articles 194 and 196 UNCLOS. Article 234 UNCLOS further provides coastal States with the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction, and control of marine pollution from vessels in icecovered areas within the limits of the EEZ, where pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance.

63

Concerning a commentary on the 1999 Sanctuary Agreement, along with the text of the Agreement, see Tullio Scovazzi, The Mediterranean Marine Mammals Sanctuary, IJMCL 16 (2001), 132– 145. See also id., New International Instruments for Marine Protected Areas in the Mediterranean Sea, in: Anastasia Strati/Maria Gavouneli/Nikolaos Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (2006), 109, 115–119; Giuseppe Notarbartolo-di Sciara et al., The Pelagos Sanctuary for Mediterranean Marine Mammals, Aquatic Conservation: Marine and Freshwater Ecosystems 18 (2008) 367; Tanaka (note 38), 300 et seq.; Drankier (note 28), 318–325. 64 In 2004, France established an ecological protection zone in the Mediterranean Sea. Decree No. 2004-33 on the Creation of an Ecological Protection Zone at the Coast of the Republic in the Mediterranean Sea (Décret n°2004-33 du 8 janvier 2004 portant création d’une zone de protection écologique au large des côtes du territoire de la République en Méditerranée), 8 January 2004, Journal Officiel de la République Française n°50 of 28 February 2004. In 2012, the ecological protected zone was transformed to the EEZ. Décret n°2012–1148 of 12 October 2012. See Laurent Lucchini/Michel Voelckel, Une nouvelle zone dans une mer semi-fermée: le décret français du 12 octobre 2012 instaurant une zone économique en Méditerranée, Annuaire du droit de la mer 17 (2012), 267–284. Likewise, Italy established an ecological protection zone beyond the outer limit of the territorial sea in 2006, Law 61 on the Establishment of an Ecological Protection Zone beyond the Outer Limit of the Territorial Sea (Legge n. 61 Istituzione di zone di protezione ecologica oltre il limite esterno del mare territorial), 8 February 2006, Gazzetta Ufficiale n. 52 of 3 March 2006. As a consequence, the French-Italian-Monégasque Sanctuary largely overlaps the French EEZ and Italian ecological protection zones.

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The cumulative effect of those provisions seems to suggest that the coastal State can exercise jurisdiction with respect to conservation of marine biological diversity in its EEZ. Considering that those who can do more can also do less, it may not be unreasonable to argue that the coastal States exercise jurisdiction to a lesser degree than they do in an EEZ when taking conservation measures on the high seas in the broad sense.65 Hence, there may be room for the view that the coastal States can exercise jurisdiction with respect to conservation of biological diversity in the potential EEZ, although technically those areas remain part of the high seas.66 By contrast, coastal States have no potential national jurisdiction on the high seas beyond 200 nautical miles and, apart from some exceptions,67 vessels on the high seas are subject to the exclusive jurisdiction of the flag State.68 Accordingly, legal justification for creating MPAs on the high seas in the strict sense seems to be more difficult.69 In this regard, OSPAR’s Group of Jurists and Linguists seems to take the position that the basis for an OSPAR competence with regard to the establishment of MPAs in the areas beyond national jurisdiction is found both in the UNCLOS and the OSPAR Convention itself.70 Specifically, Articles 192, 194, and 197 UNCLOS are mentioned.71 Although these provisions contain obligations to protect the marine environment,72 it is open to debate whether these provisions directly allow a certain group of States to establish MPAs in areas beyond national jurisdiction. Likewise, no provision of the OSPAR Convention directly provides for the establishment of MPAs in areas beyond national jurisdiction. In so far as the contracting parties to the OSPAR Convention are concerned, a possible interpretation might be that the creation of MPAs in areas beyond national jurisdiction is considered as “the necessary measures” to protect maritime areas under Article 2 (1)(a) OSPAR Convention and relevant “means” for instituting protective measures related to specific areas or sites 65 Tullio Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Considerations, IJMCL 19 (2004), 15. 66

Yoshifumi Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (2008), 134; id. (note 38), 307–308. 67

See Art. 110 UNCLOS.

68

See Arts. 89 and 92 (1) UNCLOS.

69

See Churchill (note 38), 60.

70

OSPAR Commission (note 28), 5, para. 2.21, and 9, para. 6.

71

Ibid., 2, paras. 2.4–2.5.

72

Ibid., 2, para. 2.5.

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under Article 3 (1)(b)(ii) of Annex V. In any case, there appears to be no general consensus at the present time with regard to the legal basis for establishing MPAs in areas beyond national jurisdiction in international law.73

3. Opposability of the High Seas MPAs to Third States If MPAs can be established on the high seas under the OSPAR Convention, an issue arises with regard to opposability of MPAs to third States.74 In accordance with the fundamental principle of pacta tertiis nec nocent nec prosunt, measures taken under the OSPAR Convention are not binding upon non-contracting parties.75 It is true that States are under the obligation to protect and preserve the marine environment, including rare or fragile ecosystems pursuant to Articles 192 and 194 (5) UNCLOS. States are also required to cooperate with each other in the conservation and management of living resources in the areas of the high seas in accordance with Articles 117 and 118 UNCLOS. Article 87 (2) UNCLOS further provides that the freedom of the high seas must be exercised by all States “with due regard for the interests of other States” and “with due regard for the rights under this Convention with respect to activities in the Area.” However, some doubts might be raised whether these provisions directly oblige non-contracting parties to the OSPAR Convention to comply with conservation measures taken in the MPAs in areas beyond national jurisdiction. In this regard, at least two issues arise. The first issue relates to the lack of objective criteria for the selection of the MPAs. Given that scientific knowledge of biological diversity in areas beyond national jurisdiction remains limited, the validity of the selection of MPA sites may be open to challenge.

73

Some question the competence under the OSPAR Convention to create MPAs in areas beyond national jurisdiction, see UN General Assembly (UN GA), Intersessional Workshops Aimed at Improving Understanding of the Issues and Clarifying Key Questions as an Input to the Work of the Working Group in Accordance with the Terms of Reference Annexed to General Assembly Resolution 67/78: Summary of Proceedings Prepared by the Co-Chairs of the Working Group, UN Doc. A/AC. 276/6 (2013), para. 89. 74 For an analysis of the concept of opposability see Joseph Gabriel Starke, The Concept of Opposability in International Law, Australian Yearbook of International Law 1 (1968–1969), 1. 75

See also OSPAR Commission (note 28), 2, para. 2.6.

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The second issue pertains to the procedure for selecting the MPAs. Non-contracting parties did not participate in the decision-making process with regard to the site selection of MPAs and regulatory measures there. In this regard, it must be recalled that a contracting party to the OSPAR Convention which has voted against an OSPAR decision is not bound by it. Thus, it may go too far to argue that non-contracting parties must automatically accept regulatory measures taken under the OSPAR Convention, whilst the contracting parties to the Convention can lodge objections against the measures.

4. The Relationship between the OSPAR High Seas MPAs and the Coastal States’ Rights over the Continental Shelf beyond 200 Nautical Miles The next issue to be considered concerns the relationship between the OSPAR MPAs in areas beyond national jurisdiction and the coastal States’ rights over the continental shelf beyond 200 nautical miles. In the North-East Atlantic, five OSPAR MPAs – MPAs in the Altair Seamount, the Antialtair Seamount, the Josephine Seamount, the MAR North of the Azores, and the Charlie-Gibbs North High Seas MPA – overlap the coastal States’ (Portugal and Iceland) claim over the continental shelf beyond 200 nautical miles. An issue thus arises with regard to the relationship between the OSPAR MPAs and the claim over the continental shelf beyond 200 nautical miles. One may take the Josephine Seamount High Seas Marine Protected Area as an example. The seabed in the area of the MPA is encompassed within the continental shelf beyond 200 nautical miles claimed by Portugal.76 In this regard, the OSPAR Recommendation 2010/16 stated that: [T]he establishment of this MPA does not create any precedent regarding the establishment by the OSPAR Commission of other MPAs in waters superjacent to areas of the seabed subject to submission to CLCS or prejudice the sovereign rights and obligations of coastal States to the continental shelf. The establishment of such MPAs will be decided on a case by case basis.77

As the OSPAR Recommendation recognised, 76

OSPAR Recommendation 2010/16 (note 54), 2, para. 9 Preamble.

77

Ibid., para. 13 Preamble.

164 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 [t]he establishment of an MPA encompassing the seabed and the superjacent waters of the Josephine Seamount seabed by the Portuguese Republic and the OSPAR Commission respectively is essential for maintaining of the integrity of the ecosystems of the Josephine Seamount by providing for coherence, compatibility and complementarity of the management measures to be taken beyond and within national jurisdiction.78

Thus, coordination of conservation measures taken by the OSPAR Commission and Portugal in the management of the Josephine Seamount High Seas MPA is needed. In this regard, the Portuguese Republic reported to the OSPAR Commission that it would establish the programmes, measures, and agreements which are necessary for the achievement of the conservation vision and conservation objectives regarding the seabed of the Josephine Seamount.79 At the same time, Portugal requested that the OSPAR Commission take corresponding measures for the waters superjacent to the Josephine Seamount.80 The OSPAR Recommendation also recognised that the OSPAR Commission can take corresponding measures in order to achieve the conservation vision and conservation objectives for the high seas superjacent to the seabed subject to the submission of the Portuguese Republic in the area of the Josephine Seamount.81

5. Compatibility of the High Seas MPAs with the Freedom of Navigation Although MPAs on the high seas may be affected by shipping, the regulation of shipping falls outside the scope of the OSPAR Convention. Thus, shipping is to be regulated through other treaties, such as the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention)82 and the 1973 International Convention for the Prevention of Pollution from Ships and its 1978 Protocol (MARPOL 73/78). As of February 2014, the SOLAS Convention has 162 parties, which cover 99.2% of

78

Ibid., para. 12 Preamble.

79

Ibid., para. 10 Preamble.

80

Ibid.

81

Ibid., para. 11 Preamble.

82

International Convention for the Safety of Life at Sea, 1 November 1974, UNTS 1184, 277 (SOLAS Convention).

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the gross tonnage of the world’s merchant fleet,83 and the MARPOL 73/78 has 152 parties, accounting for 99.2% of the gross tonnage of the world’s merchant fleet.84 Therefore, the SOLAS Convention and the MARPOL 73/78 can be considered as binding on nearly all ships.85 Considering that, normally, the International Maritime Organisation (IMO) is the competent organisation for establishing navigational and pollution measures for ships beyond the high seas under the UNCLOS,86 its role is of particular importance in the regulation of shipping within the OSPAR MPAs.87 Indeed, under Article 4 (2) of Annex V OSPAR Convention, “[w]here the Commission considers that action under this Annex is desirable in relation to a question concerning maritime transport, it shall draw that question to the attention of the International Maritime Organisation.” The same provision further requires the Contracting Parties who are members of the IMO [to] endeavour to cooperate within that Organisation in order to achieve an appropriate response, including in relevant cases that Organisation’s agreement to regional or local action, taking account of any guidelines developed by that Organisation on the designation of special areas, the identification of particularly sensitive areas or other matters.

6. Interlinkage between OSPAR and the International Seabed Authority Finally, the interlinkage between the OSPAR regime and other international institutions must be examined. Specifically, two interlinkages are at issue. The first is the interlinkage between the OSPAR Convention and the ISA,88 whilst the second is the interlinkage between the OSPAR Convention and the NEAFC. In this subsection, the first interlinkage will be considered.

83 International Maritime Organisation (IMO), Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organisation or Its Secretary-General Performs Depositary or Other Function, 17, available at: http://www.imo.org/About/Conventions/StatusOf Conventions/Documents/Status%20-%202014.pdf (accessed on 23 October 2014). 84

Ibid., 109.

85

Churchill (note 38), 75.

86

Ibid., 74.

87

The IMO has observer status to the OSPAR Convention, see OSPAR Commission, Observers, available at: http://www.ospar.org/content/content.asp?menu=00120000000028_000000_000000 (accessed on 23 October 2014). 88

All 16 contracting parties to the OSPAR Convention are also members of the ISA.

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Since, as explained earlier, the Milne Seamount Complex MPA and the CharlieGibbs South MPA are situated entirely in areas beyond national jurisdiction, the seabed and its subsoil of these MPAs are part of the Area, which is the common heritage of mankind. Thus, the activities in the seabed and the subsoil of the two MPAs are governed by the ISA whilst they are also collectively protected by all contracting parties to the OSPAR Convention. The ISA possesses prescriptive and enforcement jurisdiction with respect to environmental protection of the Area in accordance with the UNCLOS and the 1994 Implementation Agreement.89 However, the jurisdiction of the ISA does not extend to the waters superjacent of the Area. Accordingly, marine pollution in the superjacent waters of the MPAs is to be regulated by the OSPAR Convention. What is of particular interest concerning cooperation between the OSPAR and the ISA is the 2010 Memorandum of Understanding between the OSPAR Commission and the International Seabed Authority (2010 MoU).90 In its Preamble, the 2010 MoU recognises that: The OSPAR Commission and the Authority both have a strong interest in the protection of the marine environment, including of vulnerable deep sea ecosystems in the Area that are associated with some mineral resources, and have taken initiatives at a regional scale in that respect, respectively in the Charlie Gibbs Fracture Zone on the Mid-Atlantic Ridge and in the Clarion-Clipperton Fracture Zone in the Pacific Ocean.91

It further affirmed that: “[B]oth the OSPAR Commission and the Authority have complementary competence”92 and “[i]ncreased cooperation between the OSPAR Commission and the Authority will help ensure appropriate coordination of measures in order to conciliate the development of mineral resources with comprehensive

89 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 28 July 1994, UNTS 1836, 3 (1994 Implementation Agreement). Tullio Scovazzi, Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority, IJMCL 19 (2004), 383, 392–396. See also Yoshifumi Tanaka, Reflections on the Conservation and Sustainable Use of Genetic Resources in the Deep Sea-Bed Beyond the Limits of National Jurisdiction, ODIL 35 (2008), 129, 133–136. 90

ISA Assembly, Memorandum of Understanding between the OSPAR Commission and the International Seabed Authority, ISBA/16/A/INF/2 Annex (2010) (2010 MoU). 91

Para. 10 Preamble 2010 MoU.

92

Para. 9 Preamble 2010 MoU.

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protection of the marine environment.”93 Specifically, the OSPAR Commission and the ISA decided, inter alia, to encourage marine scientific research in the sea areas of the North-East Atlantic that are located beyond national jurisdiction and to cooperate in the collection of environmental data and information.94 Marine scientific research is fundamental for the protection and sustainable use of the ocean. Under Article 143 (2) UNCLOS, the ISA is required to promote and encourage marine scientific research in the Area and to coordinate and disseminate the results of such research and analysis. At the same time, a concern is voiced that some scientific research might give unwanted adverse effects on ecosystems in the deep seabed. In this regard, the OSPAR Commission issued an OSPAR Code of Conduct for Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Maritime Area.95 It also adopted an OSPAR List of Threatened and/or Declining Species and Habitats. If research is planned in an area that contains features on the List, the OSPAR Code of Conduct requires that a risk assessment should be completed before equipment that may have adverse effects is deployed. The OSPAR Code of Conduct, along with the List of Threatened and/or Declining Species and Habitats, seems to provide useful guidance for the ISA. Given that growing attention is paid to research on marine ecosystems in the deep seabed, including genetic resources there, cooperation between the OSPAR Commission and the ISA will be increasingly important in this field. On the other hand, the regulation of fishing falls outside the scope of the OSPAR Convention and the jurisdiction of the ISA, although fishing is a major threat to marine ecosystems. In order to address this issue, there is a need to secure cooperation between the OSPAR Convention and a regional fisheries organ, i.e. the NEAFC. Thus, the next part will examine the role of the NEAFC in the conservation of marine living resources.

93

Para. 11 Preamble 2010 MoU.

94

Paras. 2 and 3 2010 MoU.

95

OSPAR Commission, OSPAR Code of Conduct for Responsible Marine Research on the Deep Seas and High Seas of the OSPAR Maritime Area, OSPAR 08/24/1, Annex 6.

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IV. Conservation of Living Resources on the High Seas through Regional Fisheries Organisations: A Case of the North Atlantic Fisheries Commission A. General Considerations

Originally, the NEAFC was established under the North-East Atlantic Fisheries Convention of 24 January 1959,96 which was replaced by the 1980 Convention on Future Multilateral Cooperation in North-East Atlantic (NEAFC Convention).97 The Convention was amended in 200498 and 200699 and this “new” Convention100 is voluntarily applied on a provisional basis pending ratification by the contracting parties to the 1980 Convention. The new NEAFC Convention aims to ensure the long-term conservation and optimum utilisation of the fishery resources in the Convention Area, providing sustainable economic, environmental, and social benefits.101 The Convention Area covers the Atlantic and Arctic Oceans east of a line south of Cape Farewell – the southern tip of Greenland (42° W) –, north of a line to the west of Cape Hatteras – the southern tip of Spain (36° N) –, and west of a line touching 96

North-East Atlantic Fisheries Convention, 24 January 1959, UNTS 486, 157.

97

Convention on Future Multilateral Co-operation in North-East Atlantic Fisheries, 18 November 1980, UNTS 1285, 129 (NEAFC Convention). Contracting parties are: Denmark (in respect of the Faroe Islands and Greenland), European Union, Norway, Iceland, Russian Federation. For an overview of the NEAFC see Yoshinobu Takei, Filling Regulatory Gaps in High Seas Fisheries: Discrete High Seas Fish Stocks, Deep-sea Fisheries and Vulnerable Marine Ecosystems (2013), 162–179; Organisation for Economic Cooperation and Development, Strengthening Regional Fisheries Management Organisations (2009), 67–85. 98

NEAFC, Report of the 23rd Annual Meeting of the North-East Atlantic Fisheries Commission, 2004, 37–38 and Annex K, available via: http://archive.neafc.org/reports/annual-meeting/index.htm (accessed on 4 December 2014). 99

Id., Report of the 24th Annual Meeting of the North-East Atlantic Fisheries Commission, 2005, 32–33; id., A Proposal by Iceland to Amend the Convention on Future Multilateral Co-Operation in the North-East Atlantic (the NEAFC Convention), AM 2005/16; id., Meeting of the Working Group on the Future of the North-East Atlantic Fisheries Commission, 7–9 February 2006, AM 2006/05, all available via: http://archive.neafc.org/reports/annual-meeting/index.htm (accessed on 4 December 2014). 100 Id., “New” Convention, available at: http://www.neafc.org/system/files/Text-of-NEAFCConvention-04.pdf (accessed on 4 December 2014). 101

Art. 2 new NEAFC Convention. Under Art. 1 (b), ‘fishery resources’ means “resources of fish, molluscs, crustaceans and including sedentary species, excluding, in so far as they are dealt with by other international agreements, highly migratory species listed in Annex I of the United Nations Convention on the Law of the Sea of 10 December 1982, and anadromous stocks”.

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the western tip of Novya Semlya (51°E). However, the Baltic and Mediterranean Seas are excluded.102 As a consequence, the Convention Area covers three areas of the high seas: the Reykjanes Ridge-Azores Area, part of the Norwegian Sea (‘Banana Hole’), and the so-called ‘Loophole’ of the Barents Sea.103 The NEAFC has legal personality and enjoys such legal capacity as may be necessary to perform its functions and achieve its ends.104 Under Article 5 new NEAFC Convention, the NEAFC is empowered to make, by a qualified majority, recommendations concerning fisheries conducted beyond areas under the jurisdiction of contracting parties. Likewise, the NEAFC may, by a qualified majority, make recommendations concerning measures of control relating to fisheries conducted beyond areas under the jurisdiction of contracting parties for the purpose of ensuring the application of this Convention and any recommendation adopted thereunder pursuant to Article 8 new NEAFC Convention.105 It may also make, by a qualified majority, recommendations providing for the collection of statistical information relating to fisheries conducted beyond areas under the jurisdiction of contracting parties by virtue of Article 9 (1) new NEAFC Convention. Under Article 12 (1), [a] recommendation shall become binding on the Contracting Parties subject to the provisions of this Article and shall enter into force on a date determined by the Commission, which shall not be before 30 days after the expiration of the period or periods of objection provided for in this Article.

When making recommendations, the NEAFC is to apply the precautionary approach and to take due account of the impact of fisheries on other species and marine ecosystems.106 It shall also take due account of the need to conserve the marine biological diversity.107 Whilst measures taken by the NEAFC vary, they include, inter alia, the restriction of fishing activities, the establishment of catch limits, the collec102

Art. 1 (a) new NEAFC Convention.

103

A map of the Convention area is available at: http://www.neafc.org/managing_fisheries/ measures/ra_map (accessed on 23 October 2014). 104

Art. 3 (2) new NEAFC Convention.

105

The NEAFC may also make recommendations concerning fisheries and control measures relating to fisheries conducted within an area under the jurisdiction of a contracting party, but only if the contracting party in question so requests and the recommendation receives its affirmative vote, Arts. 6 (1) and 8 (2) new NEAFC Convention. See also Art. 9 (2) new NEAFC Convention. 106

Art. 4 (2)(b) and (c) new NEAFC Convention.

107

Art. 4 (2)(d) new NEAFC Convention.

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tion of information on fisheries, the prohibition of the exploitation of certain fish, and the limitation of certain fishing gear.108

B. Interlinkage between the OSPAR and the NEAFC

In April 2009, the NEAFC created five closure areas for the protection of vulnerable marine ecosystems.109 These areas cover more than 330,000 square kilometres or an area larger than the size of the United Kingdom and Ireland combined.110 Some parts of the OSPAR MPAs overlap the closure areas of the NEAFC (see Figure 2). In the closure areas, i.e. Northern MAR Closure, Middle MAR Closure, Southern MAR Closure, Atair Closure, and Antialtair Closure, the use of fishing gear which is likely to contact the seafloor during the normal course of fishing operation is prohibited.111 In this regard, the Bergen Statement welcomed the decision by the North East Atlantic Fisheries Commission to close until 31 December 2015 an area almost identical to Charlie-Gibbs Fracture Zone, as well as areas coinciding with the Mid-Atlantic Ridge North of the Azores, Altair Seamount and Antialtair Seamount and other areas beyond national jurisdiction of the North-East Atlantic, to bottom fisheries in order to protect the vulnerable marine ecosystems in these areas from significant adverse impacts.112

108

See also Takei (note 97), 167–173.

109

NEAFC, Press Release, 27 April 2009, available at: http://www.mar-eco.no/__data/page/962/ April_2009_press_release_MID_mar_closures.pdf (accessed on 23 October 2014); id., Report of the 28th Annual Meeting of the North-East Atlantic Fisheries Commission, 9–13 November 2009, Volume II-Annexes, Annex G, Annotations to Draft Provisional Agenda 1. Revision, 5, available at: http://www.neafc.org/system/files/report_AM_2009_plusd_annex.pdf (accessed on 13 December 2014). According to the NEAFC, the closures are guaranteed to be in place until 2017, with the possibility to extend beyond that time. See Map of Vulnerable Marine Ecosystem Closures available at: http:// www.neafc.org/closures/vme (accessed on 4 December 2014). See also Drankier (note 28), 326–327; Takei (note 97), 174. 110

NEAFC (note 109) (Press Release), 1.

111

Ibid., 4.

112

OSPAR Commission, Bergen Statement, Ministerial Meeting of the OSPAR Commission, 23– 24 September 2010, 6, para. 30.

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Source: OSPAR Commission, 2012 Status Report on the OSPAR Network of Marine Protected Areas (2013), Publication Number: 618/2013, 30. Figure 11. Figure 2

Of particular importance is the collaboration between the NEAFC and the OSPAR Commission in conservation of marine living resources and biological diversity.113 In the selection process of closures in the North-East Atlantic, a member of the NEAFC participated in the OSPAR MPA group. The collaboration can be 113

Generally on this issue, see Takei (note 97), 175–179.

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said to contribute to enhance a geographical linkage between the OSPAR MPAs and the closures established by the NEAFC.114 Related to this, in 2008, the NEAFC and the OSPAR Commission adopted a Memorandum of Understanding (2008 MoU).115 It recognises that the NEAFC and the OSPAR Commission have complementary competences and responsibilities for fisheries management and environmental protection, respectively, within the North-East Atlantic including in areas beyond national jurisdiction. Specifically, the two organs reached the understanding to promote mutual cooperation in the areas, such as: a free flow of mutually useful information, joint discussion on their respective environmental concerns, and the development of a common understanding of the application of the precautionary approach/principle.116 In 2012, it was confirmed that cooperation between the OSPAR and the NEAFC Secretariats had been very good.117

C. Inspection of Non-Contracting Party Vessels

On the other hand, a further issue to be considered concerns the relationship between the NEAFC and third States. As conservation measures taken by the NEAFC are binding only on the contracting parties, like OSPAR MPAs in areas beyond national jurisdiction, an issue arises regarding the possibility to secure the effectiveness of these measures taken by the Commission in relation to non-contracting parties. In this regard, some consideration must be given to the inspection of non-contracting party vessels at sea and in ports by Member States of the NEAFC.

114 Bethan C. O’Leary et al., The First Network of Marine Protected Areas (MPAs) in the High Seas: the Process, the Challenges and Where Next, Marine Policy 36 (2012), 598, 600. See also NEAFC Permanent Committee on Management and Science of the North-East Atlantic Fisheries Commission, Report (2010), 12, available at: http://www.neafc.org/system/files/PECMAS%20sep%20oct%20 2010%20%20report%20fin%20.pdf (accessed on 23 October 2014). 115

Memorandum of Understanding between the North East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission (2008 MoU), available at: http://www.ospar.org/html_ documents/ospar/html/mou_neafc_ospar.pdf (accessed on 23 October 2014); Drankier (note 28), 317. 116 117

Para. 1 2008 MoU.

NEAFC, Permanent Committee on Management and Science (PECMAS) of the North-East Atlantic Fisheries Commission, Report (2012), 19, available at: http://www.neafc.org/system/files/ PECMAS-Oct-2012-report-final.pdf (accessed on 23 October 2014).

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1. At-Sea Inspection of Non-Contracting Party Vessels on the High Seas Under Article 37 (1) 2014 NEAFC Scheme of Control and Enforcement (2014 NEAFC Control Scheme),118 contracting parties to the NEAFC are obliged to transmit to the Secretary without delay any information regarding non-contracting party vessels sighted or by other means identified as engaging in fishing activities in the Convention Area. The Secretary is to transmit this information to all contracting parties within one business day. Next, the NEAFC inspectors are to request permission to board and inspect non-contracting party vessels in accordance with Article 38 2014 NEAFC Control Scheme. If the master of the vessel consents to the vessel being boarded, the inspection shall be documented by completing an inspection report as set out in Annex XIII 2014 NEAFC Control Scheme. If the master does not consent to the boarding and inspection of his vessel or does not fulfill any one of the obligations laid down in Article 19 (a)–(e) 2014 NEAFC Control Scheme, the vessel shall be presumed to have engaged in illegal, unreported, and unregulated (IUU) fishing activities pursuant to Article 38 (3) 2014 NEAFC Control Scheme. In summary, under the 2014 NEAFC Control Scheme, the NEAFC polices fishing activities of vessels on the high seas, even if the flag State of a fishing vessel is not a member of the organisation.119 One may be tempted to consider that at-sea inspection of non-contracting party vessels helps to conserve living resources on the high seas and that it can be considered an institutional application of the law of dédoublement fonctionnel. However, it cannot pass unnoticed that, in essence, conservation of targeted marine species through the NEAFC is closely linked to safeguarding economic interests of the contracting parties, that is, allocation of a finite amount of marine living resources among the contracting parties.120 In this regard, the 2003 Guidelines for the Expectation of Future New Contracting Parties with regard to Fishing Opportunities in the NEAFC Regulatory Area stated that: “Non Contract118

Id., Scheme of Control and Enforcement 2014, available at: http://www.neafc.org/system/files/ NEAFC_Scheme_of_Control_and_Enforcement_2014_A4_Double_Sided.pdf (accessed on 23 October 2014) (2014 NEAFC Control Scheme), entered into force on 5 March 2014. 119 It appears that this is in line with Art. 21 (1) Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, UNTS 2167, 3 (Straddling Fish Stocks Agreement). 120

Art. 7 (e) new NEAFC Convention.

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ing Parties of NEAFC should be aware that presently and for the foreseeable future, stocks regulated by NEAFC are fully allocated, and fishing opportunities for new members likely to be limited to new fisheries (stocks not currently allocated).”121 Further, a contentious issue arises with regard to the presumption of undermining conservation and enforcement measures by regional fisheries organisations. Article 37 (2) 2014 NEAFC Control Scheme stipulates that the non-contracting party vessel that has been sighted or by other means identified as engaging in fishing activities in the Convention Area is presumed to be undermining the Recommendations established under the Convention.122 Article 37 (3) 2014 NEAFC Control Scheme further provides: In the case of a non-Contracting Party vessel sighted or by other means identified as engaging in transhipment activities, the presumption of undermining conservation and enforcement measures applies to any other non-Contracting Party vessel that has been identified as having engaged in such activities with that vessel.

The presumption of undermining conservation and enforcement measures is provided for in regulatory measures of other fisheries organisations,123 such as the Northwest Atlantic Fisheries Organisation (NAFO),124 the Indian Ocean Tuna Commission (IOTC),125 the International Commission for the Conservation of Atlantic Tunas (ICCAT),126 and the Commission for the Conservation of Antarctic 121 NEAFC, Guidelines for the Expectation of Future New Contracting Parties with regard to Fishing Opportunities in the NEAFC Regulatory Area, 2003, available via: http://www.neafc.org/ print/becomingacp (accessed on 23 October 2014). 122 However, vessels of the cooperating non-contracting parties under Art. 34 2014 NEAFC Control Scheme are exempted from the presumption. Presently Canada, New Zealand, and St Kitts and Nevis are cooperating non-contracting parties, see Cooperating Non-Contracting Parties, available via: http://www.neafc.org/ (accessed on 23 October 2014). 123

Rosemary Rayfuse, Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts, Australian Yearbook of International Law 24 (2005), 181, 188. 124

Art. 49 2014 Northwest Atlantic Fisheries Organization (NAFO) Conservation and Enforcement Measures, available via: http://www.nafo.int/ (accessed on 23 October 2014). 125

IOTC, Resolution 01/03 Establishing a Scheme to Promote Compliance by Non-Contracting Party Vessels with Resolutions Established by IOTC, in: IOTC, Compendium of Active Conservation and Management Measures for the Indian Ocean Tuna Commission (2014), 158, para. 2, available via: http://www.iotc.org/cmms (accessed on 23 October 2014). 126 ICCAT, Recommendation Concerning the Ban on Landings and Transhipments of Vessels from Non-Contracting Parties Identified as Having Committed a Serious Infringement, para 1, available at: http://www.iccat.es/Documents/Recs/ACT_COMP_2013_ENG.pdf (accessed on 23 October 2014).

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Marine Living Resources (CCAMLR).127 Yet the presumption leaves some scope for discussion at least in two respects. First, some fisheries organisations recognise that a State party which is opposed to a regulatory measure adopted by a fisheries organ is exempted from the application of the measure.128 For example, Article 12 (2)(b) new NEAFC Convention makes clear that: “A recommendation shall not become binding on a Contracting Party which has objected thereto.” “If three or more Contracting Parties have objected to a recommendation it shall not become binding on any Contracting Party” pursuant to Article 12 (2)(c) new NEAFC Convention. A question thus arises why vessels of third States are automatically bound by the regulatory measures of the regional fisheries organisations although Member States may be released from such regulations by opposition. Second, the consistency with the principle of freedom of the high seas must be examined. With some exceptions, such as high seas fishing for anadromous and catadromous species,129 fishing on the high seas is, prima facie, lawful in international law. The presumption concerned shifts the burden of proving innocence to vessels of noncontracting parties. Yet, there seems to be some scope for reconsidering the question whether the reversal of the burden of proof is not contrary to the principle of freedom of fishing. It is true that all States are under the duty to cooperate with other States in taking conservation measures concerning the living resources of the high seas in accordance with Articles 117 and 118 UNCLOS. However, it is open to debate whether the duty to cooperate automatically leads to the reversal of the burden of proof.130

2. Port Inspection of Non-Contracting Party Vessels by the NEAFC Concerning port inspection of non-contracting party vessels, Article 40 (1) 2014 NEAFC Control Scheme stipulates that: 127

CCAMLR, Conservation Measure 10-07 (2009): Scheme to Promote Compliance by NonContracting Party Vessels with CCAMLR Conservation Measures, para. 4, available at: http://www. ccamlr.org/sites/drupal.ccamlr.org/files//10-07.pdf (accessed on 23 October 2014). 128 See, for instance, Art. XII (1) and (3) Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 24 October 1978, UNTS 1135, 369; Art. VIII (3)(c) and (e) International Convention for the Conservation of Atlantic Tunas, 24 May 1966, UNTS 673, 63. 129 130

See Arts. 66 (3) and 67 (2) UNCLOS.

Moritaka Hayashi, New Developments in International Fisheries Law and the Freedom of High Seas Fishing, The Journal of International Law and Diplomacy 102 (2003), 156, 172 (in Japanese).

176 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 When a non-Contracting Party vessel enters a port of any Contracting Party, it shall be inspected by authorized Contracting Party officials knowledgeable of Recommendations established under the Convention and shall not be allowed to land or tranship any fish until this inspection has taken place.

Article 41 2014 NEAFC Control Scheme further provides that landings and transhipments of all fish from a non-contracting party vessel which has been inspected in port shall be prohibited in the ports and waters of all Contracting Parties if such an inspection reveals that the vessel has species onboard which are subject to Recommendations established under the Convention unless the master of the vessel provides satisfactory evidence to the competent authorities proving that the fish were caught outside the Regulatory Area or in compliance with all relevant Recommendations established under the Convention.

Inspections of non-contracting party vessels in port are also provided within the framework of the IOTC,131 the ICCAT,132 the CCAMLR,133 and the NAFO.134 As the port is part of the internal waters, which are under the territorial sovereignty of the coastal State, the coastal State is entitled to regulate access to its ports as well as landings and transhipments there.135 To some extent, port inspection can be thought to contribute to protect community interests with regard to the conservation of living resources on the high seas. Yet an issue may arise regarding the question whether port State inspection of non-contracting party vessels is equivalent to the de facto extension of regulatory measures of a specific fisheries organisation towards the high seas. Furthermore, as demonstrated by the EU-Chile Swordfish dispute,136 the

131 IOTC, Resolution 05/03 Relating to the Establishment of an IOTC Programme of Inspection in Port, paras. 4 and 5, available via: http://www.iotc.org/cmm/resolution-0503-relating-establishmentiotc-programme-inspection-port (accessed on 23 October 2014). 132

ICCAT (note 126), para. 2.

133

CCAMLR, Conservation Measure 10-03 (2013), Port Inspections of Fishing Vessels Carrying Antarctic Marine Living Resources, para. 1, available at: http://www.ccamlr.org/sites/drupal.ccamlr. org/files//10-03_3.pdf (accessed on 23 October 2014). 134

Art. 51 2014 NAFO Conservation and Enforcement Measures.

135

See also Art. 23 Straddling Fish Stocks Agreement.

136

WTO, Chile – Measures Affecting the Transit and Importation of Swordfish, Request for the Establishment of a Panel by the European Communities, 7 November 2000, WT/DS193/2; ITLOS, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union), Order of 20 December 2000, ITLOS Reports 2000, 148. However, both cases were suspended in March 2001. The dispute was eventually settled by negotiation

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unilateral prohibition of access, landing, and transhipments in the port may entail the risk of creating an international dispute between the port State and the fishing State. The consistency between such unilateral measures and WTO law, in particular Article XX 1994 General Agreement on Tariffs and Trade,137 may also be at issue.138 Thus, caution is necessary when the port State unilaterally applies the conservation measures to vessels of third States fishing on the high seas.139 In addition, it is submitted that the current system of port inspections is not effective very much due to insufficient vessel information and a lack of compliance among port States. In this regard, concerns are voiced that inconsistency of port State inspections creates a problem associated with ports of convenience.140

V. Conclusions The above considerations yield the following conclusions. (i)

By creating and managing MPAs in areas beyond national jurisdiction, contracting parties to the OSPAR Convention, along with the supervision through the OSPAR Commission, can be thought to assume the role of an advocate of the international community in the protection of biological diversity on the high seas. It is argued that the OSPAR Convention can be considered as an example of the institutional application of the law of dédoublement fonctionnel. Since there is no centralised machinery for conservation of marine living resources and biological diversity, the regional regimes may provide a realistic solution on this matter.

between the parties. With respect to the EU-Chile Swordfish dispute see Marcos A. Orellana, The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO, Nordic Journal of International Law 71 (2002), 55. 137

General Agreement on Tariffs and Trade 1994 (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 190 (GATT). 138

Doris König, The Enforcement of the International Law of the Sea by Coastal and Port States, ZaöRV 62 (2002), 1, 10. 139 140

Hayashi (note 130), 172–173.

Stefan Flothmann et al., Closing Loopholes: Getting Illegal Fishing Under Control, Science 328 (2010), 1235; Kiminobu Fukamachi, Regulation of the High Seas Fisheries against the IUU fishing, The Journal of International Law and Diplomacy 112 (2013), 235, 257 (in Japanese).

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(ii)

On the other hand, the creation of the OSPAR MPAs in areas beyond national jurisdiction needs further consideration with regard to the following issues:

– Legality of the MPAs, – Opposability of the MPAs for third States, – Interrelationship between the MPAs and the coastal States’ claim over the continental shelf beyond 200 nautical miles, – Compatibility of the MPAs with the freedom of navigation, and – Interlinkage between the OSPAR Commission and other relevant institutions, such as the ISA, the NEAFC, and the IMO. (iii) Since some parts of the OSPAR MPAs overlap the closure areas of the NEAFC, cooperation between the OSPAR Commission and the NEAFC is of particular importance. In this regard, it is welcomed that the NEAFC and the OSPAR Commission are developing their mutual cooperation. On the other hand, the regulation of shipping is beyond the scope of both the OSPAR Commission and the NEAFC. Thus, positive cooperation is needed between the OSPAR Commission, the NEAFC, and the IMO. In light of paucity of knowledge of marine ecosystems, cooperation between the OSPAR Commission, the ISA, and the International Council for the Exploration of the Sea will be increasingly important.141 It can be said that a regional regime cannot operate alone, and the interlinkage between relevant organisations is a prerequisite to enhancing the effectiveness of protection of marine living resources and biological diversity.142 (iv) The level of the development of regional regimes relies essentially on the economic, social, and political environment in a region. Political will in regional regimes differs in various regions. The financial situation of a particular region or State could also be a factor impeding the development of regional regimes.143 Hence, the development of regional regimes is not uni141

See also Art. 14 (1) new NEAFC Convention.

142

See also Drankier (note 28), 344.

143

UN GA (note 73), para. 92.

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form. The contracting parties to the OSPAR Convention are developed States, sharing common political and economic systems. The same is not true in other regions, however. Accordingly, serious doubt could be expressed whether the North-East Atlantic model can be directly transported to other regions.144 (v)

A fundamental limitation in international law is that there is no alternative but to act by means of treaties which can bind only contracting parties in order to protect community interests.145 As discussed earlier, regulatory measures taken by the OSPAR Commission and the NEAFC are binding only on the contracting parties. Accordingly, there is a concern that the effectiveness of the conservation measures might be undermined by activities of noncontracting parties. It may be said that the effectiveness of the OSPAR MPAs in areas beyond national jurisdiction rests on the question to what extent the validity of the MPAs would be accepted by third States.

(vi) In this regard, it is of particular interest to note that all OSPAR Decisions creating MPAs in areas beyond national jurisdiction make an explicit reference to the UN General Assembly Resolution 63/111 of February 2009 reaffirming the need to establish MPAs.146 Should a clear mandate be assigned to a specific regional regime to create and manage MPAs in areas beyond national jurisdiction on behalf of the international community as a whole, it would be possible to better secure international acceptability of the MPAs. In any case, the creation of MPAs in areas beyond national jurisdiction seems to signal that the international law of the sea is entering into a new stage at which it seeks to protect community interests, beyond individual interests of States.

144

Drankier (note 28), 345–346; Matz-Lück/Fuchs (note 34), 163.

145

Tetsuo Sato, Legitimacy of International Organizations and Their Decisions: Challenges that International Organizations Face in the 21st Century, Hitotsubashi Journal of Law and Politics 37 (2009), 11, 15. See also Villalpando (note 2), 410. 146

See also Drankier (note 28), 305 et seq.

The Exploitation of Resources of the Deep Seabed and the Protection of the Environment TULLIO SCOVAZZI(

ABSTRACT: A number of provisions of the UNCLOS and the Mining Code adopted by the International Seabed Authority regulate the protection of the environment from pollution caused by mining activities in the seabed beyond national jurisdiction, where the regime of common heritage of mankind applies. A 2001 ITLOS advisory opinion provides an important contribution to the interpretation of the relevant rules in the UNCLOS and the Mining Code and to the determination of the content of customary rules of international law relating to the protection of the marine environment, especially as regards the obligations to apply the precautionary approach and to conduct environmental impact assessments. It is likely that in 2015 the UNGA will decide to establish a preparatory committee, as a first step to develop a legally binding instrument under the UNCLOS that would deal with the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The negotiations should address marine genetic resources, including the sharing of benefits, areabased management tools, including marine protected areas, environmental impact assessment, capacity building and transfer of marine technology. A future UNCLOS implementing agreement could include new cooperative schemes, based on provisions on access to and sharing of benefits from marine genetic resources. KEYWORDS: Marine Environment beyond National Jurisdiction, Marine Genetic Resources, Common Heritage of Mankind, Freedom of the Sea, the UNCLOS Implementing Agreement

I. The Particular Regime for the Mineral Resources of the Deep Seabed In the second half of the 20th century, technological developments were expected to lead, in a relatively short time, to the commercial exploitation of the mineral resources of the seabed beyond the limits of national jurisdiction, that is, beyond the continental shelf subject to the sovereign rights of the coastal States. These resources included polymetallic nodules, which consist of minerals naturally precipitated from (

Professor of International Law, University of Milano-Bicocca, Italy.

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seawater in ocean basins, lie on or just below the surface of the deep seabed, and contain manganese, nickel, cobalt, and copper. The likely consequences of the exploitation of such mineral resources under the rules of international law existing at that time were envisaged in a memorable speech made on 1 November 1967 at the United Nations General Assembly (UNGA) by the representative of Malta, Arvid Pardo. According to the speaker, there could potentially be a rush towards the appropriation of economically and strategically valuable minerals falling under the regime of freedom of the seabed of the high seas (‘first-come-firstserved’ approach). Another, equally undesirable, possibility was a series of competitive extensions of the limits of national jurisdiction on the seabed. The results of this possible scenario would have been very grave and would have included not only political tension and economic injustice but also serious risks of pollution of the marine environment: The known resources of the seabed and of the ocean floor are far greater than the resources known to exist on dry land. The seabed and ocean floor are also of vital and increasing strategic importance. Present and clearly foreseeable technology also permits their effective exploration for military or economic purposes. Some countries may therefore be tempted to use their technical competence to achieve near-unbreakable world dominance through predominant control over the seabed and the ocean floor. This, even more than the search for wealth, will impel countries with the requisite technical competence competitively to extend their jurisdiction over selected areas of the ocean floor. The process has already started and will lead to a competitive scramble for sovereign rights over the land underlying the world’s seas and oceans, surpassing in magnitude and in its implications last century’s colonial scramble for territory in Asia and Africa. The consequences will be very grave: at the very least a dramatic escalation of the arms race and sharply increasing world tensions, also caused by the intolerable injustice that would reserve the plurality of the world’s resources for the exclusive benefit of less than a handful of nations. The strong would get stronger, the rich richer, and among the rich themselves there would arise an increasing and insuperable differentiation between two or three and the remainder. Between the very few dominant powers, suspicions and tensions would reach unprecedented levels. Traditional activities on the high seas would be curtailed and, at the same time, the world would face the growing danger of permanent damage to the marine environment through radioactive and other pollution: this is a virtually inevitable consequence of the present situation.1

In his speech Pardo proposed that the most innovative concept of ‘common heritage of mankind’ was to be applied to the marine resources beyond the limits of 1

Arvid Pardo, The Common Heritage: Selected Papers on Oceans and World Order: 1967–1974 (1975), 31.

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national jurisdiction. The word ‘heritage,’ which renders the idea of the sound management of a resource which will be passed on to the inheritors, was preferred to the words ‘property’ or ‘ownership,’ as the latter could have recalled the jus utendi et abutendi (right to use and misuse) that private Roman law gave to the owner.2 The basic elements of the regime of common heritage of mankind are the prohibition of national appropriation, the designation of space for peaceful purposes, the use of space and its resources for the benefit of mankind as a whole with particular consideration for the interests and needs of developing countries, the establishment of an international organisation entitled to act on behalf of mankind in the exercise of rights over the resources, and, finally, the concern for the protection of the marine environment. All of the aforementioned elements can be found in Part XI of the United Nations Convention on the Law of the Sea (UNCLOS).3 The Area comprising the seabed, the ocean floor and the subsoil thereof beyond the limits of national jurisdiction, and its mineral resources are the common heritage of mankind (Article 136 UNCLOS).4 No State can claim or exercise sovereignty over any part of the Area, nor can any State, natural or juridical person appropriate any part thereof (Article 137 (1) UNCLOS). The Area is open to use exclusively for peaceful purposes (Article 141 UNCLOS). All rights over the resources of the Area are vested in mankind as a whole, on whose behalf the International Seabed Authority (ISA), an international organisation created by the UNCLOS (Article 137 (2) UNCLOS), acts. Activities in the Area are carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States (Article 140 (1) UNCLOS). The ISA provides for the equitable sharing of financial and other economic benefits derived from activities in the Area through an appropriate mechanism (Article 140 (2) UNCLOS). Special

2

See the Introduction by Elisabeth Mann Borgese to Arvid Pardo, ibid., X.

3

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 4

In fact, the concrete translation of the idea of common heritage of mankind into the written text of the UNCLOS does not fully reflect all the aspects included in the original proposal. Under the draft ocean space treaty elaborated by Malta in 1971 (text in Pardo (note 1), 381), all the natural resources, whether living or non-living, existing in the international ocean space beyond the 200 nm limit would be managed by the International Ocean Space Institutions, to ensure the equitable sharing by all States of the benefits derived from the development of these resources and taking into particular consideration the interests and needs of poor countries, whether land-locked or coastal (Art. 91 (7) UNCLOS).

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UNCLOS provisions regulate the protection of the environment in the Area (Articles 145 and 209).5 The common heritage of mankind is a third conceptual option, a sort of tertium genus, which applies to a particular kind of resource located in a specific marine space. As far as other resources and other marine spaces are concerned, it does not eliminate the traditional notions of freedom, which applies on the high seas, and of sovereignty, which applies in the territorial sea and today in the exclusive economic zone (EEZ).

II. Pollution from Activities in the Area under the UNCLOS Deep seabed mining is an activity taking place in uncontaminated spaces of the globe and involving sophisticated equipment and technologies. It entails serious risks of pollution of a pristine marine environment. Under the UNCLOS, States have the general obligation to protect and preserve the marine environment (Article 192 UNCLOS). Other rules of a general character and applying to any source of pollution include those establishing the obligations to protect rare or fragile ecosystems as well as the habitats of depleted, threatened, or endangered species and other forms of marine life (Article 194 (5) UNCLOS), to notify imminent or actual damage (Article 198 UNCLOS), to assess the potential effects of activities that may cause substantial pollution of or significant and harmful changes to the marine environment (Article 206 UNCLOS), to monitor the risks or effects of pollution (Article 204 UNCLOS), and to ensure that recourse is available 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 (Article 235 (2) UNCLOS). In the specific case of pollution from activities in the Area, Article 209 UNCLOS provides as follows: 1. International rules, regulations and procedures shall be established in accordance with Part XI [= the Area] to prevent, reduce and control pollution of the marine environment from activities in the Area. Such rules, regulations and procedures shall be re-examined from time to time as necessary. 2. Subject to the relevant provisions of this section, States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the 5

See infra, II.

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Area undertaken by vessels, installations, structures and other devices flying their flag or of their registry or operating under their authority, as the case may be. The requirements of such laws and regulations shall be no less effective than the international rules, regulations and procedures referred to in paragraph 1.

Under Article 145 UNCLOS, the ISA is entrusted with the adoption of rules for the protection of the environment from pollution arising from activities in the Area: Necessary measures shall be taken in accordance with this Convention with respect to activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities. To this end the Authority shall adopt appropriate rules, regulations and procedures for inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities; (b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment.

Under Article 139 (1) UNCLOS, States parties have the responsibility to ensure that activities in the Area, whether carried out by States parties, State enterprises, or natural or juridical persons which possess the nationality of States parties or are effectively controlled by them or their nationals, are carried out in conformity with Part XI of the UNCLOS (the Area). Damage caused by the failure of a State party to carry out this responsibility entails liability, unless it has taken “all necessary and appropriate measures to secure effective compliance” (Article 139 (2) UNCLOS).

III. Pollution from Activities in the Area under the ISA’s Regulations So far, the ISA has adopted three sets of rules relating to different mineral resources of the deep seabed, namely the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Nodules Regulations),6 the Regulations on Prospecting

6

International Seabed Authority (ISA), Regulations on prospecting and exploration for polymetallic nodules in the Area, 13 July 2000 , Doc ISBA/6A/18 (Nodules Regulations).

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and Exploration for Polymetallic Sulphides in the Area (Sulphides Regulations),7 and the Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts (Cobalt Crusts Regulations).8 They comprise the so-called Mining Code. Polymetallic sulphide deposits are precipitated where molten rock, welling up in hot springs from deep in the earth’s crust, comes in contact with cold seawater. Such undersea hot springs are located in earthquake and volcanic zones where the seafloor is spreading apart because of movements of the earth’s tectonic plates. Cobalt-rich ferromanganese crusts are oxidized deposits of cobalt-rich iron and manganese layers formed by the precipitation of minerals from cold seawaters on hard seabed surfaces. While cobalt is found in both types of deposits, sulphides also contain manganese, iron, other metals, and rare earth elements, while crusts also contain copper, lead, nickel, zinc, gold, and silver. Prospecting9 and exploration10 are the first two phases of mining activities in the deep seabed. The third one is exploitation.11 The three sets of aforementioned rules contain a number of provisions relating to the protection of the marine environment12 and the measures to be taken in case of serious harm to it.13 For instance, according to the Nodules Regulations,14 contractors, 7

Id., Regulations on prospecting and exploration for polymetallic sulphides in the Area, 7 May 2010, Doc ISBA/16/A/12/Rev.1 (Sulphides Regulations). 8 Id., Regulations on prospecting and exploration for cobalt-rich ferromanganese crusts in the Area, 29 November 2009, Doc ISBA/16/C/WP.2 (Cobalt Crusts Regulations); The Law of the Sea: Compendium of Basic Documents, International Seabed Authority (2001), 226, available at: http://www.isa. org.jm/files/documents/EN/Pubs/LOS/index.html (accessed on 10 November 2014). 9 “‘[P]rospecting’ means the search for deposits of polymetallic nodules in the Area, including estimation of the composition, sizes and distributions of deposits of polymetallic nodules and their economic values, without any exclusive rights” (Reg. 1 (3)(e) Nodules Regulations). 10

“‘[E]xploration’ means searching for deposits of polymetallic nodules in the Area with exclusive rights, the analysis of such deposits, the testing of collecting systems and equipment, processing facilities and transportation systems, and the carrying out of studies of the environmental, technical, economic, commercial and other appropriate factors that must be taken into account in exploitation” (Reg. 1 (3)(b) Nodules Regulations). 11 “‘[E]xploitation’ means the recovery for commercial purposes of polymetallic nodules in the Area and the extraction of minerals therefrom, including the construction and operation of mining, processing and transportation systems, for the production and marketing of metals” (Reg. 1 (3)(a) Nodules Regulations). 12

“‘[M]arine environment’ includes the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof” (Reg. 1 (3)(c) Nodules Regulations). 13

“‘[S]erious harm to the marine environment’ means any effect from activities in the Area on the marine environment which represents a significant adverse change in the marine environment deter-

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sponsoring States, and other interested States or entities are required to “cooperate with the Authority in the establishment and implementation of programmes for monitoring and evaluating the impacts of deep seabed mining on the marine environment” (Reg. 31 (6) Nodules Regulations). When required by the Council of the Authority, such programmes include areas to be set aside and used exclusively as “impact reference zones,” that are “areas to be used for assessing the effect of […] activities in the Area on the marine environment and which are representative of the environmental characteristics of the Area,” and “preservation reference zones,” that are “areas in which no mining shall occur to ensure representative and stable biota of the seabed in order to assess any changes in the biodiversity of the marine environment” (Reg. 31 (7) Nodules Regulations). The contractor is required to gather environmental baseline data and to establish environmental baselines, “against which to assess the likely effects of its programme of activities under the plan of work for exploration on the marine environment” (Reg. 31 (4) Nodules Regulations) and to establish a programme to monitor and report on such effects (Reg. 32 (1) Nodules Regulations). Contractors must promptly report to the Secretary-General of the Authority “in writing, using the most effective means, any incident arising from activities which have caused, are causing or pose a threat of serious harm to the marine environment” (Reg. 33 (1) Nodules Regulations). The Secretary-General takes “such immediate measures of a temporary nature as are practical and reasonable in the circumstances to prevent, contain and minimise serious harm or the threat of serious harm to the marine environment” (Reg. 33 (3) Nodules Regulations). The Council of the Authority “may issue emergency orders, which may include orders for the suspension or adjustment of operations, as may be reasonably necessary to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment arising out of activities in the Area” (Reg. 33 (6) Nodules Regulations) and, if a contractor does not promptly comply with them, can take by itself or through arrangements with others on its behalf, such practical measures as are necessary to prevent, contain and minimise any such serious harm or threat of serious harm to the marine environment (Reg. 33 (7) Nodules Regulations). The contractor, prior to the commencement of testing of collecting systems and processing operations, must pro-

mined according to the rules, regulations and procedures adopted by the Authority on the basis of internationally recognized standards and practices” (Reg. 1 (3)(f) Nodules Regulations). 14

The other Regulations, mutatis mutandis, contain corresponding provisions.

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vide the Council with a guarantee of its financial and technical capability to comply promptly with emergency orders or to assure that the Council can take them (Reg. 33 (8) Nodules Regulations). The precautionary approach is recalled in the Nodules Regulations as well as in the other two sets of regulations:15 In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration,16 and best environmental practices (Reg. 31 (2) Nodules Regulations).

The precautionary approach, which is oriented towards the protection of the environment, could potentially conflict with the principle of common heritage of mankind, which is oriented towards the exploitation of natural resources. Even though the precautionary approach does not appear in the UNCLOS, the sets of regulations try to integrate the approach into the regime intended for the exploitation of the mineral resources of the deep seabed. Under Reg. 31 (1) Nodules Regulations, the ISA is called to “establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area.” Thus far, the Legal and Technical Commission of the Authority has adopted Recommendations for the guidance of contractors for the assessment of possible environmental impacts arising from exploration for polymetallic nodules in the Area in 2010,17 and Recommendations for the guidance of contractors for the assessment of possible environmental impacts arising from the exploration for marine minerals in the Area in 2013.18

15

See Reg. 33 (2) Sulphides Regulations and Reg. 33 (2) Cobalt Crusts Regulations.

16

United Nations Environmental Programme, Rio Declaration, 14 June 1992, UN Doc. A/CONF. 151/26 (vol. I) / 31 ILM 874 (1992), Principle 15 “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. 17 ISA, Recommendations for the guidance of contractors for the assessment of possible environmental impacts arising from exploration for polymetallic nodules in the Area, 2 November 2010, Doc. ISBA/16/LTC/7. 18 Id., Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, 1 March 2013, Doc. ISBA/19/ LTC/8.

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IV. The ITLOS Advisory Opinion On 1 February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (the Chamber) unanimously rendered an advisory opinion on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area,19 as requested in 2010 by the Council of the ISA. The opinion provides an important contribution to the interpretation of the relevant rules in the UNCLOS and the Mining Code and to the determination of the content of customary rules of international law relating to the protection of the marine environment beyond national jurisdiction, especially as regards the obligation to apply the precautionary approach and the obligation to conduct an environmental impact assessment.

A. The Obligations of Sponsoring States

As regards the legal responsibilities and obligations of a State sponsoring activities in the Area (first question), the Chamber found that such a State has the obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the UNCLOS and related instruments. This is an obligation of due diligence and the sponsoring State is bound to make best possible efforts to secure compliance by the sponsored contractors. The standard of due diligence may vary over time and depends on the level of risk and on the activities involved. The due diligence obligation requires the sponsoring State to take measures within its legal system, consisting of laws and regulations and administrative measures. The applicable standard in this regard is that the measures must be reasonably appropriate. In particular, on the question of the content of a due diligence obligation, the Chamber remarked that: […] not every violation of an obligation by a sponsored contractor automatically gives rise to the liability of the sponsoring State. Such liability is limited to the State’s failure to meet its obligation to ‘ensure’ compliance by the sponsored contractor.20

19 International Tribunal for the Law of the Sea (ITLOS), Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10. 20

Ibid., para. 109.

190 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 The sponsoring State’s obligation ‘to ensure’ is not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with the aforementioned obligations. Rather, it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. To utilize the terminology current in international law, this obligation may be characterized as an obligation ‘of conduct’ and not ‘of result,’ and as an obligation of ‘due diligence.’21 The content of ‘due diligence’ obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that ‘due diligence’ is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity. As regards activities in the Area, it seems reasonable to state that prospecting is, generally speaking, less risky than exploration activities which, in turn, entail less risk than exploitation. Moreover, activities in the Area concerning different kinds of minerals, for example, polymetallic nodules on the one hand and polymetallic sulphides or cobalt rich ferromanganese crusts on the other, may require different standards of diligence. The standard of due diligence has to be more severe for the riskier activities.22

According to the Chamber, the sponsoring State must also comply with direct obligations, such as the obligations to assist the Authority, to apply the precautionary approach as reflected in Principle 15 of the Rio Declaration,23 to apply the best environmental practices, to adopt measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment, and to provide recourse for compensation. In particular, in a carefully worded sentence, the Chamber, while not declaring the precautionary approach a part of customary international law, found that a trend is developing in this direction: The Chamber observes that the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration.24 In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law.25

Perhaps, rather than relying on the notion of trend, the Chamber could have concluded that the precautionary approach is of a customary nature, given the high number of treaties and other instruments where such an approach is recalled. The 21

Ibid., para. 110.

22

Ibid., para. 117.

23

Principle 15 Rio Declaration.

24

Ibid.

25

Ibid., para. 135.

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Chamber found that the sponsoring State is under a due diligence obligation to ensure compliance by the sponsored contractor with its obligation to conduct an environmental impact assessment. Such an obligation is a general obligation under customary law and is also set out as a direct obligation for all parties in Article 206 UNCLOS: It should be stressed that the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law.26

The Chamber remarked that the obligations in question apply equally to developed and developing States, unless specifically provided otherwise in the applicable provisions. The Chamber was clear in pointing out that preferential treatment for developing States, which is provided by some provisions of the UNCLOS (for instance, as regards reserved areas for mining operations), does not extend to the field of responsibility and liability for damages. The opposite conclusion would have entailed the risk of the spread of ‘sponsoring States of convenience’: However, none of the general provisions of the Convention concerning the responsibilities (or the liability) of the sponsoring State ‘specifically provides’ for according preferential treatment to sponsoring States that are developing States. As observed above, there is no provision requiring the consideration of such interests and needs beyond what is specifically stated in Part XI. It may therefore be concluded that the general provisions concerning the responsibilities and liability of the sponsoring State apply equally to all sponsoring States, whether developing or developed.27 Equality of treatment between developing and developed sponsoring States is consistent with the need to prevent commercial enterprises based in developed States from setting up companies in developing States, acquiring their nationality and obtaining their sponsorship in the hope of being subjected to less burdensome regulations and controls. The spread of sponsoring States ‘of convenience’ would jeopardize uniform application of the highest standards of protection of the marine environment, the safe development of activities in the Area and protection of the common heritage of mankind.28

B. The Extent of Liability of Sponsoring States

The second question submitted to the Chamber was in relation to the extent of liability of a party for any failure to comply with the provisions of the UNCLOS by 26

Ibid., para. 145.

27

Ibid., para. 158.

28

Ibid., para. 159.

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an entity whom it has sponsored. The Chamber found in general that the liability of the sponsoring State arises from its failure to fulfil its obligations under the UNCLOS and related instruments and that the failure of the sponsored contractor to comply with its obligations does not in itself give rise to liability on the part of the sponsoring State. The two requisite conditions for the liability of the sponsoring State to arise are the failure to carry out its responsibilities under the UNCLOS and the occurrence of damage.29 The liability of the sponsoring State for failure to comply with its due diligence obligations requires that a causal link be established between such failure and damage. As such a link cannot be presumed, the sponsoring State is absolved from liability if it has taken all necessary and appropriate measures to secure effective compliance by the sponsored contractor with its obligations.30 On the complex matter of the distribution of responsibilities for deep seabed mining activities between the contractor and the sponsoring State, the Chamber provided a useful clarification by concluding that their respective responsibilities exist in parallel: […] the main liability for a wrongful act committed in the conduct of the contractor’s operations or in the exercise of the Authority’s powers and functions rests with the contractor and the Authority, respectively, rather than with the sponsoring State. In the view of the Chamber, this reflects the distribution of responsibilities for deep seabed mining activities between the contractor, the Authority and the sponsoring State.31

In particular, the Chamber excluded the possibility of the contractor and the sponsoring State being jointly and severally liable: In this context, the question of whether the contractor and the sponsoring State bear joint and several liability was raised in the proceedings. Nothing in the Convention and related instruments indicates that this is the case. Joint and several liability arises where different entities have contributed to the same damage so that full reparation can be claimed from all or any of them. This is not the case under the liability regime established in Article 139, paragraph 2, of the Convention. As noted above, the liability of the sponsoring State arises from its own failure to carry out its responsibilities, whereas the contractor’s liability arises from its own non-compliance. Both forms of liability exist in parallel. There is only one 29 The requirement that damage occur can be subject to criticism. If there is no damage, there will be no obligation of compensation. But this does not necessarily mean that the sponsoring State has not violated its obligation of due diligence and is not bound to establish the situation required by the legal provisions in force. On this question the Chamber concluded, in a rather unclear way, that if the sponsoring State has failed to fulfil its obligation but no damage has occurred, the consequences of such a wrongful act are determined by customary international law. 30 This exemption from liability does not apply to the failure of the sponsoring State to carry out its direct obligations. 31

ITLOS (note 19), para. 200.

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point of connection, namely, that the liability of the sponsoring State depends upon the damage resulting from activities or omissions of the sponsored contractor […]. But, in the view of the Chamber, this is merely a trigger mechanism. Such damage is not, however, automatically attributable to the sponsoring State.32

As regards the entitlement to claim compensation for damage, the Chamber pointed out that: [n]o provision of the Convention can be read as explicitly entitling the Authority to make such a claim. It may, however, be argued that such entitlement is implicit in Article 137, paragraph 2, of the Convention, which states that the Authority shall act ‘on behalf’ of mankind. Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area.33

The Chamber also excluded that the sponsoring State bears residual liability, as a sort of guarantee to compensate the damage which the contractor has not compensated: In the view of the Chamber, the liability regime established by Article 139 of the Convention and in related instruments leaves no room for residual liability. […] The liability of the sponsoring State and the liability of the sponsored contractor exist in parallel. The liability of the sponsoring State arises from its own failure to comply with its responsibilities under the Convention and related instruments. The liability of the sponsored contractor arises from its failure to comply with its obligations under its contract and its undertakings thereunder. As has been established, the liability of the sponsoring State depends on the occurrence of damage resulting from the failure of the sponsored contractor. However, […] this does not make the sponsoring State responsible for the damage caused by the sponsored contractor.34

Having pointed out that situations may arise where a contractor does not meet his liability in full and the sponsoring State is not liable, the Chamber suggested that the ISA considers “the establishment of a trust fund to compensate for the damage not covered.”35

C. The Measures to be Taken by the Sponsoring State

The third and final question submitted to the Chamber was in relation to the necessary and appropriate measures that a sponsoring State must take in order to 32

Ibid., para. 201.

33

Ibid., para. 180.

34

Ibid., para. 204.

35

Ibid., para. 205.

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fulfil its responsibility under the UNCLOS. The Chamber held that the UNCLOS requires the sponsoring State to adopt, within its legal system, laws and regulations and to take administrative measures36 that have two distinct functions, namely to ensure compliance by the contractor with its obligations and to exempt the sponsoring State from liability. The scope and extent of these laws and regulations and administrative measures depends on the legal system of the sponsoring State. They may include the establishment of enforcement mechanisms for active supervision of the activities of the sponsored contractor and for coordination between the activities of the sponsoring State and those of the ISA. The provisions that the sponsoring State may find necessary to include in its national laws may concern, inter alia, financial viability and technical capacity of sponsored contractors, conditions for issuing a certificate of sponsorship, and penalties for non-compliance by such contractors. The sponsoring State does not have absolute discretion with respect to the adoption of laws and regulations and the taking of administrative measures. It must act in good faith, taking the various options into account in a manner that is reasonable, relevant, and conducive to the benefit of mankind as a whole: The sponsoring State does not have absolute discretion with respect to the action it is required to take under Annex III, Article 4, paragraph 4, of the Convention. In the sphere of the obligation to assist the Authority acting on behalf of mankind as a whole, while deciding what measures are reasonably appropriate, the sponsoring State must take into account, objectively, the relevant options in a manner that is reasonable, relevant and conducive to the benefit of mankind as a whole. It must act in good faith, especially when its action is likely to affect prejudicially the interests of mankind as a whole. The need to act in good faith is also underlined in Articles 157, paragraph 4, and 300 of the Convention. Reasonableness and non-arbitrariness must remain the hallmarks of any action taken by the sponsoring State.37

As regards the protection of the marine environment, the laws and regulations and administrative measures of the sponsoring State cannot be less stringent than those adopted by the ISA or less effective than international rules, regulations, and procedures. It is inherent in the due diligence obligation of the sponsoring State to ensure that the obligations of a sponsored contractor are made enforceable.

36 The sponsoring State cannot be considered as complying with its obligations only by entering into a contractual arrangement with the contractor. 37

ITLOS (note 19), para. 230.

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V. The Question of Genetic Resources A. The Prospects for the Exploitation of Genetic Resources in the Deep Seabed

States are facing new challenges as regards the subject of conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. The exploitation of commercially valuable genetic resources may in the near future become another profitable activity taking place beyond the limits of national jurisdiction. Despite extreme conditions of cold, complete darkness, and high pressure, the deep seabed is not a desert. It is the habitat of diverse forms of life associated with typical features such as hydrothermal vents, cold water seeps, seamounts, or deep water coral reefs. In particular, the deep seabed supports biological communities that present unique genetic characteristics. Some animal communities live in the complete absence of sunlight where warm water springs from tectonically active areas (so-called hydrothermal vents).38 Several species of microorganisms, fish, crustaceans, polychaetes, echinoderms, coelenterates, and molluscs have been found in hydrothermal vent areas. These communities, which do not depend on plant photosynthesis for their survival, rely on specially adapted micro-organisms able to synthesise organic compounds from the hydrothermal fluid of the vents (chemosyntesis).39 The ability of some deep seabed organisms to survive extreme temperatures (thermophiles and hyperthermofiles), high pressure (barophiles), and other extreme conditions (extremophiles) makes their genes of great interest to science and industry.40 The factual implications of the exploitation of marine genetic resources were pointed out in a document issued in 2005 by the Subsidiary Body on Scientific, Technical and

38 Hydrothermal vents may be found both in the Area and on the seabed falling within the limits of national jurisdiction, according to the definition of the continental shelf given by Art. 76 UNCLOS. 39 The discovery of hydrothermal vent ecosystems has given rise to a new theory as to how life on earth began. It could have originated and evolved in association with hydrothermal vents in the primeval ocean during the early Archaean period (about 4,000 million years ago). 40 Jesús M. Arrieta/Sophie Arnaud-Haond/Carlos M. Duarte, What lies underneath: Conserving the oceans’ genetic resources, Proceedings of the National Academy of Sciences of the United States of America 107 (43) (2010), 18318.

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Technological Advice (SBSTTA)41 established under the Convention on Biological Diversity.42 First, only few States and private entities have access to the financial means and sophisticated technologies needed to reach the deep seabed: Reaching deep seabed extreme environments and maintaining alive the sampled organisms, as well as culturing them, requires sophisticated and expensive technologies. […] Typically, the technology associated with research on deep seabed genetic resources involves: oceanographic vessels equipped with sonar technology, manned or unmanned submersible vehicles; in situ sampling tools; technology related to culture methods; molecular biology technology and techniques; and technology associated with the different steps of the commercialization process of derivates of deep seabed genetic resources. With the exception of basic molecular biology techniques, most of the technology necessary for accessing the deep seabed and studying and isolating its organisms is owned by research institutions, both public and private. To date, only very few countries have access to these technologies.43

Second, the prospects for commercial applications of bioprospecting activities are promising: Deep seabed resources hold enormous potential for many types of commercial applications, including in the health sector, for industrial processes or bioremediation. A brief search of Patent Office Databases revealed that compounds from deep seabed organisms have been used as basis for potent cancer fighting drugs, commercial skin protection products providing higher resistance to ultraviolet and heat exposure, and for preventing skin inflammation, detoxification agents for snake venom, anti-viral compounds, anti-allergy agents and anti-coagulant agents, as well as industrial applications for reducing viscosity.44 [T]he commercial importance of marine genetic resources is demonstrated by the fact that all major pharmaceutical firms have marine biology departments. The high cost of marine scientific research, and the slim odds of success (only one to two percent of pre-clinical candidates become commercially produced) is offset by the potential profits. Estimates put

41 Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), Marine and Coastal Biological Diversity: Status and Trends of, and Threats to, Deep Seabed Genetic Resources beyond National Jurisdiction, and Identification of Technical Options for their Conservation and Sustainable Use, 22 July 2005, UNEP/CBD/SBSTTA/11/11. 42

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79 (CBD).

43

SBSTTA (note 41), paras. 12 and 13. “A limited number of institutions worldwide own or operate vehicles that are able to reach areas deeper than 1,000 meters below the oceans’ surface, and can therefore be actively involved in deep seabed research” (ibid., para. 16). 44

Ibid., para. 21.

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worldwide sales of all marine biotechnology-related products at US $ 100 billion for the year 2000.45

Last but not least, another important element to take into consideration is that the patent legislation of several States does not compel the applicant to disclose the origin of the genetic materials used: Assessing the types and levels of current uses of genetic resources from the deep seabed proves relatively difficult for several reasons. First, patents do not necessarily provide detailed information about practical applications, though they do indicate potential uses. Moreover, information regarding the origin of the samples used is not always included in patent descriptions.46

Confidentiality on the origin of genetic resources could affect attempts to establish a future regime for the sharing of benefits arising from marine genetic resources.47 The 2011 report of the United Nations Secretary-General on “Oceans and the law of the sea”48 provided the following information on the relevant commercial developments of marine genetic resources: Recent work has focussed on discerning the degree to which genetic resources from areas beyond national jurisdiction have contributed to commercial developments, such as patents applied for and granted. To date, it appears that a very small number of patents have originated from the seabed beyond national jurisdiction (generally related to deep-sea bacteria), while a great number have been used on genetic resources from the high seas (primarily micro-organisms, floating sargassum weed, fish and krill). Of concern are applications with potentially large environmental consequences, such as the proposed use of sargassum weed for biofuels.49

45

Ibid., para. 22.

46

Ibid.

47

On the questions linked to patents see Huaiwen He, Limitations on Patenting Inventions Based on Marine Genetic Resources of Areas beyond National Jurisdiction, International Journal of Marine and Coastal Law 29 (3)(2014), 521. 48

Oceans and the law of the sea: Report of the Secretary-General, GA. Res. A/66/70 of 22 March

2011. 49

Ibid., para. 63.

198 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 B. Common Heritage of Mankind v. Freedom of the High Seas

But what is the international regime applicable to genetic resources in areas beyond national jurisdiction?50 In fact, neither the UNCLOS nor the CBD provide any specific legal framework in this regard. In 2006 the subject of the international regime for genetic resources in the deep seabed was discussed within the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (the Working Group).51 Opposing views were put forward by the States concerned. Some States took the position that the UNCLOS principle of common heritage of mankind and the mandate of the ISA should be extended to also cover genetic resources:

50

See Lyle Glowka, The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area, Ocean Yearbook 12 (1996), 156; Tullio Scovazzi, Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority, International Journal of Marine and Coastal Law 19 (2004), 383; Salvatore Arico/Charlotte Salpin, Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects (2005); David Kenneth Leary, International Law and the Genetic Resources of the Deep Sea (2006); Alex G. Oude Elferink, The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas, International Journal of Marine and Coastal Law (IJMCL) 22 (2007), 143; Fernanda Millicay, A Legal Regime for the Biodiversity of the Area, in: Myron H. Nordquist et al. (eds.), Law, Science and Ocean Management (2007), 739; Louise Angélique de La Fayette, A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction, IJMCL 24 (2009), 221; Frida M. Armas-Pfirter, How Can Life in the Deep Seabed Be Protected?,IJMCL 24 (2009), 281; Loraine Ridgeway, Marine Genetic Resources: Outcomes of the United Nations Informal Consultative Process, International Law of Marine and Coastal Law 24 (2009), 309; Richard Barnes, Entitlement to Marine Living Resources in Areas Beyond National Jurisdiction, in: Alex G. Oude Elferink/Erik J. Molenaar (eds.), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (2010), 83; Tullio Scovazzi, The Seabed Beyond the Limits of National Jurisdiction: General and Institutional Aspects, in: Alex G. Oude Elferink/Erik J. Molenaar (eds.) (note 50), 43; Anna Jørem/Morten Walløe Tvedt, Bioprospecting in the High Seas: Existing Rights and Obligations in View of a New Legal Regime for Marine Areas beyond National Jurisdiction, IJMCL 29 (2014), 321; Lyle Glowka, Marine Genetic Resources within and beyond the Limits of National Jurisdiction: Challenges and Opportunities Posed by Existing and Emerging International Legal Framework and Processes, in: Marta Chantal Ribeiro (ed.), 30 Years after the Signature of the United Nations Convention on the Law of the Sea: The Protection of the Environment and the Future of the Law of the Sea (2014), 251; Judith Wehrli/ Thomas Cottier, Towards a Treaty Instrument on Marine Genetic Resources, in: Marta Chantal Ribeiro (ed.) (note 50), 517. 51

The Working Group was established under GA Res. 60/30 of 29 November 2005.

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Several delegations reiterated their understanding that the marine genetic resources beyond areas of national jurisdiction constituted the common heritage of mankind and recalled Article 140 of the Convention, which provides that the activities in the Area shall be carried out for the benefit of mankind and that particular consideration should be given to the interest and needs of developing States, including the need for these resources to be used for the benefit of present generations and to be preserved for future generations. […] A number of delegations mentioned that the International Seabed Authority constituted an existing mechanism in this area and that consideration should accordingly be given to the possibility of broadening its mandate.52

Other States relied on the UNCLOS principle of freedom of the high seas, which would imply a right of freedom of access to and unrestricted exploitation of deep seabed genetic resources: Other delegations reiterated that any measures that may be taken in relation to genetic resources in areas beyond national jurisdiction must be consistent with international law, including freedom of navigation. In their view, these resources were covered by the regime of the high seas, which provided the legal framework for all activities relating to them, in particular marine scientific research. These delegations did not agree that there was a need for a new regime to address the exploitation of marine genetic resources in areas beyond national jurisdiction or to expand the mandate of the International Seabed Authority.53

The Working Group held a second meeting in 2008.54 Again, very different views were expressed as regards the regime to be applied to marine genetic resources, repeating the discussion that had already taken place in 2006: In that regard, divergent views were expressed on the relevant legal regime on marine genetic resources beyond areas of national jurisdiction, in particular whether those marine genetic resources were part of the common heritage of mankind and therefore fell under the regime of the Area, or were part of the regime for the high seas.55 52 Report of the Ad Hoc Open-ended Informal Working Group to study issues relating to their conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, 20 March 2006, Doc. A/61/65, para. 71. 53

Ibid., para. 72.

54

Also the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea addressed the subject of marine genetic resources at its 2007 meeting. However, the meeting was unable to reach overall agreement on the elements to be suggested to the UN General Assembly as regards the legal regime of such resources. See the co-chairpersons’ possible elements to be suggested in the annex to UN Doc. A/62/169 of 30 July 2007. 55 Joint statement of the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group, Annex to Letter dated 15 May 2008 from the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction addressed to the President of the General Assembly, 16 May 2008, Doc. A/63/79, para. 36.

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The same differing positions were manifested during the 2010 meeting of the Working Group.56 This basic disagreement on the international regime of genetic resources leaves a sentiment of dissatisfaction. In fact, both divergent positions proceed from the same starting point – recognising the UNCLOS being as the legal framework for all activities in the oceans and seas, including in respect of genetic resources beyond areas of national jurisdiction.57 How can two groups of States, proceeding from the same assumption, namely that the UNCLOS is the legal framework for all activities taking place in the sea, reach two completely opposite conclusions as regards the matter in question? A possible answer to the question is that the starting assumption is itself not completely true.58

C. A Truism and its Consequences

There is no doubt that the UNCLOS is a cornerstone in the field of codification of international law. It has been rightly qualified as a “constitution for the oceans,” “a monumental achievement in the international community,” “the first comprehensive treaty dealing with practically every aspect of the uses and resources of the seas and the oceans,” an instrument which “has successfully accommodated the competing interests of all nations.”59 Nevertheless, the UNCLOS, as any legal text, is linked to the time when it was negotiated and adopted (from 1973 to 1982). Being itself a product of its time, the UNCLOS is not immune to the passing of time. While it provides a solid basis for the regulation of many matters, it would be wrong to think that the 56 See Letter Dated 16 March 2010 from the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, 17 March 2010, UN Doc. A/65/68, paras. 70–72. 57 Joint statement of the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group (note 55), para. 36. The statement is repeated in the resolutions on “Oceans and the law of the sea” yearly adopted by the UN General Assembly. See, for instance, the preamble of GA Res. 65/37 A of 7 December 2010, which emphasises that the UNCLOS “sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained […]”. 58

See Tullio Scovazzi, Is the UN Convention on the Law of the Sea the Legal Framework for All Activities in the Sea? The Case of Bioprospecting, in: Davor Vidas (ed.), Law, Technology and Science for Oceans in Globalisation (2010), 309. 59

Tommy T. B. Koh, A Constitution for the Oceans, in: The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (1983), xxiii.

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UNCLOS is the end of legal regulation. International law of the sea is subject to a process of natural evolution and progressive development which is linked to States’ practice and also involves the UNCLOS. Due to space constraints, it is not possible to elaborate here on the instances where changes with respect to the original UNCLOS regime have been integrated into the UNCLOS itself (evolution by integration); where different interpretations of the relevant UNCLOS provisions are in principle admissible and State practice may be important in making one interpretation prevail over another (evolution by interpretation); where the UNCLOS does not provide any clearly defined regime and the relevant legal regime is to be inferred only from State practice (evolution in another context); or where, due to the fact that the UNCLOS regime is clearly unsatisfactory, which happens very seldom, but may happen, a new instrument of universal scope is drafted in order to avoid the risk of undesirable consequences (evolution by further codification).60 Although a truism, the assumption that the UNCLOS is linked to the time when it was negotiated has the great strength of truisms. It is a matter of fact that the UNCLOS cannot produce miracles. In particular, the UNCLOS cannot regulate those activities that its drafters did not intend to regulate for the simple reason that they were not foreseeable in the period when this treaty was being negotiated. At that time, very little was known about the genetic qualities of deep seabed organisms. For obvious chronological reasons, the potential economic value of the units of heredity of this kind of organisms was not considered by the UNCLOS negotiators. When dealing with the special regime of the Area and its resources, the UNCLOS drafters had only mineral resources in mind. This is clearly evident from the plain text of the UNCLOS. The term ‘activities in the Area’ is defined as “all activities of exploration for, and exploitation of, the resources of the Area” (Article 1 (3) UNCLOS). Article 133 (a) UNCLOS defines the ‘resources’ of the Area as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.”61 The UNCLOS regime of common heritage of mankind does not include the non-mineral resources of the Area. However, for the same chronological reasons, the regime of freedom of the high seas cannot be intended to apply to genetic resources either. While 60 See Tullio Scovazzi, The Evolution of International Law of the Sea: New Issues, New Challenges, Hague Academy of International Law, Recueil des Cours de l’Académie de Droit International de la Haye 286 (2000), 39. 61

In so providing, the UNCLOS narrows the term ‘resources’ that was used in a more abstract and broad sense in Art. 1 GA Res. 2749 (XXV)of 17 December 1970.

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including provisions relating to living and mineral resources in areas beyond national jurisdiction, the UNCLOS does not provide any specific regime for the exploitation of marine genetic resources. The words “genetic resources” or “bioprospecting”62 do not appear anywhere in the UNCLOS. A legal gap exists in this regard. Sooner or later it should be filled (preferably sooner rather than later) through a regime which, to be consistent, should encompass under the same legal framework the genetic resources of both the Area and the superjacent waters. Nevertheless, not all of the UNCLOS should be left aside when envisaging a future regime for marine genetic resources beyond national jurisdiction. The scope of the regime of the Area is already broader than may be believed at first sight. Under the UNCLOS, the legal condition of the Area also has an influence on the regulation of activities which, although different from minerals and mining activities, are also located in that space. The regime of the Area already encompasses topics which are more or less directly related to mining activities such as marine scientific research,63 the preservation of the marine environment,64 and the protection of underwater cultural heritage.65 As far as the first two subjects are concerned, it is difficult to draw a clear-cut distinction between what takes place on the seabed and what takes place in the superjacent waters. While a specific regime for exploitation of genetic resources is lacking, the aim of sharing the benefits among all States, which was the main aspect of the seminal proposal made by Pardo, can still be seen as a basic objective embodied in a treaty designed to “contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked” (UNCLOS preamble). Also in the field of genetic resources, the application of the principle of freedom of the sea (that is the ‘first-comefirst-served’ approach) leads to inequitable and hardly acceptable consequences. New cooperative schemes, based on provisions on access to and sharing of benefits, should be envisaged in a future agreement on genetic resources beyond the limits of national 62 Bioprospecting is currently understood as the search for commercially valuable genetic resources of the deep seabed. 63

See Art. 143 UNCLOS.

64

See Art. 145 UNCLOS.

65

See Art. 149 UNCLOS.

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jurisdiction. This is also in full conformity with the principle of fair and equitable sharing of the benefits arising out of the utilisation of genetic resources set forth by Article 1 CBD and, more recently, by Article 10 Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.66 Moreover, bioprospecting can already be considered as falling under the UNCLOS regime of marine scientific research. The UNCLOS does not provide any definition of ‘marine scientific research.’ However, Article 246 UNCLOS, which applies to the EEZ and the continental shelf, makes a distinction between two kinds of marine scientific research projects, namely those carried out “to increase scientific knowledge of the marine environment for the benefit of all mankind” (Article 246 (3) UNCLOS) and those “of direct significance for the exploration and exploitation of natural resources, whether living or non-living” (Article 246 (5)(a) UNCLOS). This distinction supports the conclusion that, under the UNCLOS logic, research activities of direct significance for the purpose of exploration and exploitation of genetic resources also fall under the general label of ‘marine scientific research.’67Consequently, bioprospecting is also covered by Article 143 (1) UNCLOS, which sets forth the principle that “[m]arine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole.”68 This provision refers to any kind 66 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010. Art. 10 Nagoya Protocol: “Parties shall consider the need for and the modalities of a global multilateral benefitsharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally.” While the Nagoya Protocol does not apply to areas beyond national jurisdiction, it could become a source of inspiration. As stated in the 2011 report of the UN Secretary General on “Oceans and the law of the sea,” the adoption and implementation of the Nagoya Protocol “may provide further opportunities to inform and advance the discussions on marine genetic resources, including by providing examples of how the sharing of benefits from the utilization of resources from areas within national jurisdiction may be addressed in a multilateral context” (Oceans and the law of the sea: Report of the Secretary-General (note 48), para. 256). Another source of inspiration could be the International Treaty on Plant Genetic Resources for Food and Agriculture, concluded in 2001 under the auspices of the Food and Agriculture Organization of the United Nations. 67

There is an inextricable factual link between marine scientific research (either pure or applied) and bioprospecting. A research endeavour organised with the intent to increase human knowledge may well result in the discovery of commercially valuable information on genetic resources. 68 Art. 241 UNCLOS is also relevant in a discussion on the legal condition of the genetic resources of the deep seabed. It provides that “[m]arine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources”.

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of marine scientific research and is not limited to research on mineral resources. Yet, the reading of Article 143 UNCLOS in combination with Article 246 UNCLOS contradicts the assumption that there is an absolute freedom to carry out bioprospecting in the Area.69 States which are active in bioprospecting in this space are already bound to contribute to the benefit of mankind as a whole.70 The remarks made on genetic resources can be repeated, mutatis mutandis, as regards other subjects that, while not unknown at the time of negotiations for the UNCLOS, are regulated by it in only quite a general manner, such as marine protected areas71 or environmental impact assessment.72

69 Art. 143(3) UNCLOS grants States the right to carry out scientific research in the Area, but obliges them to cooperate with other States and the ISA in various fields, including the dissemination of results. Also this provision refers to any kind of marine scientific research in the Area. Yet, the mandate of the ISA deserves close scrutiny, especially if it is to be understood not only as an entity involved in marine mining activities in competition with others, but as the international organisation which bears the main responsibility to realise a just and equitable economic order of the oceans and seas. Nothing prevents States from expanding the mining focus of the Authority and granting it some broader management competences in the field of genetic resources. 70

“The principle of common heritage in its substantive aspect is, like any norm of international law, capable of being applied in a decentralised manner by states. Even in the absence of ad hoc institutions every state is under an obligation to respect and fulfil the principle of the common heritage by ensuring that subjects within its jurisdiction do not act contrary to its object and purpose. This would be the case if a state authorised or negligently failed to prevent biotechnological activities in common spaces that had the effect of causing severe and irreversible damage to the unique biodiversity of that space. Similarly, a state would fail the common heritage if it authorised exclusive appropriation of genetic resources without requiring equitable sharing of pertinent scientific knowledge and without ensuring that a fair portion of economic benefits accruing from their exploitation be devoted to the conservation and sustainable development of such common resources”; Francesco Francioni, Genetic Resources, Biotechnology and Human Rights: The International Legal Framework, in: id. (ed.), Biotechnologies and International Human Rights (2007), 1, 14–15. 71

Under Art. 194 (5) UNCLOS “[t]he measures taken in accordance with this Part [= Protection and Preservation of the Marine Environment] shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”Art. 2 CBD defines a “‘[p]rotected area’ as “a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.” The definition includes three elements, namely: a geographical delimitation of the area; a conservation objective; a stricter regime than elsewhere in the sea (but this does not mean that any activity is prohibited within the marine protected area). 72 Under Art. 206 UNCLOS, “[w]hen States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in Article 205”.

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VI. Possible Future Developments New prospects emerged at the 2011 meeting of the Working Group. A number of States, both developed (for example, the Member States of the European Union) and developing, proposed the commencement of a negotiation process towards a new implementation agreement of the UNCLOS to fill the gaps in the present regime of conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.73 While a general consensus on this proposal has not yet been achieved, commonalities are being developed among a number of States involved in the discussion. The States participating in the 2011 meeting of the Working Group recommended that: (a) A process be initiated, by the General Assembly, with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under the United Nations Convention on the Law of the Sea. (b) This process would address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, and environmental impact assessments, capacity-building and the transfer of marine technology.74

In 2013, owing to Resolution 67/7875 the United Nations General Assembly (UNGA) convened two workshops on the topics of “marine genetic resources” and “conservation and management tools, including area-based management and environ73

A new implementation agreement was already envisaged by certain States during the 2008 meeting of the Working Group: “Several delegations considered that an implementation agreement under the United Nations Convention on the Law of the Sea was the most effective way to establish an integrated regime and address the multiplicity of challenges facing the protection and sustainable use of marine biodiversity in areas beyond national jurisdiction. Those delegations suggested that such an instrument was necessary to fill the governance and regulatory gaps that prevented the international community from adequately protecting marine biodiversity in the areas beyond national jurisdiction. It was proposed that such an instrument would address currently unregulated activities, ensure consistent application of modern ocean governance principles in sectoral management regimes and provide for enhanced international cooperation” (Joint statement of the Co-Chairpersons of the Working Group (note 55), para. 47). 74

Recommendations of the Ad Hoc Open-ended Working Group and Co-Chairs summary of discussions, Annex to Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the GA, 30 June 2011, UN Doc. A/66/119, para. 1. 75

GA Res. 67/78 of 11 December 2012.

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mental impact assessment.” The workshops were intended to improve understanding of the issues and clarify key questions in order to enable the UNGA to make progress on ways to fulfil its mandate.76 In the same Resolution the UNGA recalled: [...] that in ‘The future we want,’ States committed to address, on an urgent basis, building on the work of the Working Group and before the end of the sixty-ninth session of the Assembly, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the Convention.77

Recalling that the two workshops provided valuable scientific and technical expert information78 through Resolution 68/70,79 the UNGA reaffirmed its commitment to take a decision before the end of its 69th session, established a process within the Working Group to prepare for such action,80 and requested that the Working Group make recommendations on the scope, parameters, and feasibility of an international instrument under the UNCLOS.81 The 69th session of the UNGA will end in August 2015 and a decision on how to proceed is today almost imminent. A third UNCLOS implementation agreement is envisaged by many States as a promising way to move forward, in so far as the existing instruments cannot fill the present governance and regulatory gaps and cannot provide the required specific regimes. Rather than a discussion on theoretical legal principles, what is needed for the time being is the consolidation of a general understanding on a number of ‘commonalities’ that could become the key elements in a ‘package’ for a future global regime for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. This package could include the topics of a network of marine protected areas,82 environmental impact assessment,83 76 See Letter dated 8 June 2012 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, 13 June 2012, UN Doc. A/67/95, para. 1 and appendix. 77 GA Res. 67/78 ( note 75), para. 181. “The Future We Want” is the outcome document adopted by the UN Conference on Sustainable Development, held in Rio de Janeiro in 2012 (so-called Rio+20 Conference (GA Res. 66/288 of 27 July 2012)). 78

See the summary of the proceedings of the workshops in UN Doc. A/AC.276/6 of 10 June 2013.

79

GA Res. 68/70 of 9 December 2013.

80

Ibid., para. 197.

81

Ibid., para. 198.

82

Calls for the establishment of such a network can be found in para. 32 (c) Plan of Implementation of the World Summit on Sustainable Development, in para. 177 of “The Future We Want,” the outcome document of the United Nations Conference on Sustainable Development (see note 75), as well

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marine genetic resources, including access to and sharing of benefits from them, as well as capacity building and transfer of technologies. On 23 January 2015 the Working Group recommended by consensus to the UNGA to develop an international legally-binding instrument under the Convention [= the UNCLOS] on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.84

It is likely that, by the end of its present 69th session (September 2015), the UNGA will follow the recommendation of the Working Group. If so, a multilateral negotiation will start to draft what could become a third implementation agreement of the United Nations Convention on the Law of the Sea (Montego Bay, 1982).

as in the relevant paragraphs of the lasts annual resolutions of the United Nations General Assembly on “Oceans and the Law of the Sea”. 83 There is a need to establish an internationally agreed procedure to assess the cumulative impact of different activities carried out by different States in the same high seas area. 84

See UN Doc. A/69/780 of 13 February 2015.

Maritime Security: Cooperative Means to Address New Challenges DORIS KÖNIG(

ABSTRACT: Due to its international nature, maritime piracy has always necessitated particular cooperation between States. The articles shows how such security threats can be addressed from multiple perspectives, integrating private actors and governments of different countries through cooperative means in the framework provided by the United Nations Convention on the Law of the Sea and international organisations such as the United Nations and its International Maritime Organization. Apart from cooperation on the international and regional level, issues that seemingly only concern the national legislator, such as the regulation of armed private guards on board of commercial vessels, are part of a comprehensive approach to respond to maritime security threats. KEYWORDS: United Nations Convention for the Law of the Sea, Piracy, Maritime security, Cooperation, Law of the sea

I. Maritime Security, Piracy, and the Need to Cooperate Transnational cooperation has always been – and still is – key to maritime governance. This holds true not only for maritime security1 but for maritime affairs in general.2 The term ‘maritime security’ usually covers the area of law which deals with security threats posed by maritime terrorism or other criminal activities at sea, such as (

Claussen-Simon-Foundation Chair of International Law and director of the Center for Security and Law at Bucerius Law School, Hamburg, and Justice of the Federal Constitutional Court, Karlsruhe. The author wishes to thank Tim R. Salomon, Martin Fischer, and Sebastian tho Pesch for their invaluable support in finishing this manuscript. 1 Mark T. Nance/Michael J. Struett, Conflicting Constructions: Maritime Piracy and Cooperation under Complex Regimes, in: Michael J. Struett/Jon D. Carlson/Mark T. Nance (eds.), New International Relations: Maritime Piracy and the Construction of Global Governance (2012), 125, 125; James Kraska, International Maritime Security Law (2013), 10. 2

Donald D. Rothwell/Tim Stephens, The International Law of the Sea (2010), 475.

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cross-border trafficking of people and drugs as well as the illegal transport of weapons or piracy.3 Although all of those crimes would be interesting to look at, this article will focus on acts of piracy. By the beginning of the 21st century, piracy had become an almost forgotten phenomenon – a crime on the high seas that for centuries was a scourge of humanity seemed to have been almost completely eradicated. Surprisingly, some eight to ten years ago, piracy had a forceful revival in the Gulf of Aden, around the coast of Somalia, and in the Western Indian Ocean. From 2008 to 2012, one of the busiest and most important transport routes from Europe to Asia was threatened by numerous attacks on merchant vessels and the hijacking of ships and crew. While Somali piracy has now seemingly vanished, at least in the media, the underlying infrastructure still exists, and experts already warn of potential resurgence, should the continuing efforts to suppress piracy diminish.4 Although no longer under public scrutiny, attempted acts of piracy are still part of the day-to-day business around the Horn of Africa and beyond. Moreover, new hot spots of piracy and armed robbery at sea have developed in the Gulf of Guinea, off the West African coasts, and in the sea area around Singapore. Since piracy is an ancient maritime crime, the repression of piracy is regulated by customary international law codified in nine articles in the United Nations Convention on the Law of the Sea (UNCLOS),5 namely Articles 100 to 107 and Article 110. One of the main elements of piracy is its occurrence on the high seas or in the Exclusive Economic Zones (EEZ) – areas where ships are under the exclusive jurisdiction of flag States, meaning that other States usually have no or very limited enforcement jurisdiction. In order to suppress piracy and prosecute alleged pirates effectively, exceptions to the rule of exclusive flag State jurisdiction were accepted. If there is reasonable ground to suspect that a ship is engaged in piracy, foreign warships or other ships on government service have a right of visit to verify any suspicion (Article 110 UNCLOS). In case of piracy, these ships have the right to seize a pirate ship 3

Kraska (note 1), 1.

4

Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council Resolution 2060 (2012): Somalia, UN Doc. S/2013/413, 7–8; Report of the Secretary-General on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia, UN Doc. S/2013/623, para. 8; Christian Bueger, The Decline of Somali Piracy – Towards Long Term Solutions, 1 September 2013, available at: http://piracy-studies.org/2013/the-decline-of-somali-piracy-towards-long-term-solutions/ (accessed on 12 February 2015). 5

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

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or a ship controlled by pirates, arrest the perpetrators, and put them on trial (Article 105 UNCLOS). In addition, States are obliged in very general terms to cooperate “to the fullest possible extent in the repression of piracy” (Article 100 UNCLOS). It should be pointed out, however, that under the UNCLOS, States have no obligation to prosecute pirates or extradite them.6 A duty to prosecute or extradite alleged pirates or armed robbers derives, however, from the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)7 or the Hostage Convention8 if the offence falls within their ambit. Apart from certain ambiguities in the UNCLOS provisions, the enforcement rights of third States with regard to piracy are rather straightforward. This is not to deny, though, that some States, e.g. Japan and Germany, are under constitutional constraints and – for that matter – cannot or do not want to exercise those international rights. Nevertheless, in such a situation as the one in the Gulf of Aden and off the Somali coast, enforcement actions by individual States are not adequate to solve an international problem. Confronted with this massive outbreak of piracy, a large number of States, the United Nations, other international organisations, and private actors engaged in an unprecedented cooperative approach which finally led to a significant drop in the number of successful attacks. In order to give an overview of the whole picture, this article covers three areas of cooperation, namely (1) military and political cooperation at the international level, (2) cooperation between States in the region, and (3) cooperation in the International Maritime Organization (IMO) and other fora concerning the use of private armed security personnel on board merchant vessels.

II. Cooperation at the International Level A. Military Cooperation in the Region

When analysing the suppression of Somali piracy, the strong international naval presence in the region comes first to mind. Military operations against piracy are 6

Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea (2011), 151,152.

7

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, UNTS, 1678, 201. 8

International Convention against the Taking of Hostages, 17 December 1979, UNTS 1316, 205.

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authorised by Chapter VII of the United Nations Charter9 resolutions of the Security Council.10 It is noteworthy that these resolutions ask for Somali consent to military action against pirates in Somali territorial waters. Making anti-piracy operations conditional on Somalia’s consent shows that the Security Council wanted to seek the cooperation of Somalia’s then Transitional Federal Government instead of acting without Somali approval. From a legal perspective, such consent would not have been necessary for naval operations to be justified under Chapter VII UN Charter. As to anti-piracy operations on the high seas or in Somalia’s then potential EEZ,11 Security Council authorisation was not necessary at all, because other States could have legally acted against piracy according to the UNCLOS and customary international law. This lends itself to the conclusion that the main purpose of the Security Council resolutions was to call upon States willing and able to act to coordinate their military presence and cooperate closely with each other and with competent international organisations, with the Somali government, and with States in the region. Thus, it seems to have been clear from the outset that the suppression of piracy off the Somali coast needed a coordinated effort of cooperation by the international community as a whole. As to military cooperation, there are to date three anti-piracy multinational naval operations in the Gulf of Aden, around the Horn of Africa, and off the Somali coast: first, the US-led Combined Task Force 151 (CTF 151) for specific counter-piracy operations; second, NATO’s counter-piracy Operation ‘Ocean Shield’; and third, the European Union (EU) counter-piracy Operation Atalanta. In addition, several States have sent warships on their own account – so-called independent deployers – such as China, India, Indonesia, Iran, Japan, Malaysia, Russia, South Korea, and some Member States of the Southern African Development Community. In 2008, the ‘Internationally Recommended Transit Corridor’ was established in the Gulf of Aden which is patrolled by CTF 151, NATO, and EU Atalanta forces. One of the navies’ priorities is the safe escort of World Food Programme (WFP) and African Union Mission in Somalia (AMISOM) convoys. Other vulnerable merchant 9

Charter of the United Nations, 26 June 1945, UNTS 892, 119 ( UN Charter).

10

SC Res. 2125 of 18 November 2013. The resolution mentions all previous resolutions in its para. 12. 11

Somalia has since declared an Exclusive Economic Zone (EEZ) through a ‘Proclamation of the President of the Federal Republic of Somalia,’ 30 June 2014, available at: http://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/PDFFILES/SOM_2014_Proclamation.pdf (accessed on 12 February 2015).

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vessels are advised to join group transits which are within the operational reach of naval forces. When the number of successful attacks in the Gulf of Aden were reduced with the help of international naval operations, pirates changed their tactics and expanded their operation area into the Indian Ocean by using so-called mother ships. In response, navies enlarged their patrol area and intercepted mother ships where possible. According to experts, the sharp decline in Somali piracy is, to a large extent, due to the key role of international navies and their enhanced capabilities.12 Their activities demand a high degree of coordination and cooperation in gathering and sharing information, as do the operational tasks of securing an extensive coastline, guarding vulnerable vessels, and swiftly reacting to attacks. Launched by the Combined Maritime Forces in 2008, the Shared Awareness and Deconfliction mechanism (SHADE) has become the centre of naval coordination.13 Meetings are regularly held in Bahrain to coordinate counter-piracy activities between the naval coalitions and independent deployers to avoid mission conflicts and duplication. SHADE serves also as a forum for information sharing and discussion between representatives from force-providing States, regional countries, international organisations, and maritime industry groups.

B. Political Cooperation in the Contact Group on Piracy off the Coast of Somalia

Pursuant to Security Council Resolution 1851 (2008)14 and a United States (UN) initiative, the Contact Group on Piracy off the Coast of Somalia (Contact Group) was established in January 2009, at a time when the numbers of piracy attacks were on the rise. It was created as an ad hoc international forum to coordinate the international efforts to suppress piracy off the Somali coast. In December 2008, when Resolution 1851 encouraged States to “establish an international cooperation mechanism to act as a common point of contact,”15 then US Secretary of State Condoleezza Rice pointed out three impediments to an effective international response to Somali pira12

UN Doc. S/2013/623 (note 4), para. 4; Bueger (note 4).

13

Information about Shared Awareness and Deconfliction (SHADE) is available via: http:// combinedmaritimeforces.com/tag/shade/ (accessed on 12 February 2015). 14

SC Res. of 16 December 2008.

15

Ibid., para. 4.

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cy: (1) weak State capacity in the region, (2) a lack of political will to act, and (3) the absence of coordination.16 The establishment of the Contact Group was the answer to the pre-2009 piecemeal and uncoordinated attempts by a number of States to tackle Somali piracy.17 It brings together more than 60 countries, about twenty international and regional organisations, industry groups, and non-governmental organisations (NGOs) to discuss measures against piracy and collect the necessary financial means for projects in various fields. The Contact Group’s work is carried out in five working groups: Working Group 1, chaired by the United Kingdom, coordinates naval operations, information sharing, and capacity building; Working Group 2, chaired by Denmark, discusses legal and judicial issues with the substantial assistance from the UN Office on Drugs and Crime (UNODC); Working Group 3, chaired by South Korea, closely cooperates with the IMO, shipping industry, and seafarer groups on best management practices to protect ships and crew; Working Group 4, chaired by Egypt, works on raising public awareness of and discouraging piracy in the region; and Working Group 5, established in 2011 and chaired by Italy, aims at disrupting the piracy criminal network ashore and tracking the financial flows generated from ransom payments in close cooperation with INTERPOL, the UNODC, and the World Bank.18 This approach is a holistic one involving all stakeholders in the discussion process. Due to the Contact Group’s informal character, there are few rules of procedure. Early on, it decided to open up the forum to all States with an interest in piracy and to take decisions by consensus. Membership of the Working Groups is also informal, and access is decided upon by the chairperson. It is quite fascinating to see how this ad hoc platform, established in the pragmatic attempt to coordinate efforts to suppress piracy off the Somali coast, has developed into a stable forum of cooperation between States and private actors, including international organisations and NGOs from the maritime commercial industries and civil society alike. 16

United States Secretary of State Condoleezza Rice, Combating the Scourge of Piracy, 18 December 2006, available at: http://2001-2009.state.gov/secretary/rm/2008/12/113269.htm (accessed on 12 February 2015). 17 For the history of the establishment of the Contact Group on Piracy off the Coast of Somalia (GCPCS) see Danielle A. Zach/D. Conor Seyle/Jens Vestergaard Madsen, Burden-sharing Multi-level Governance: A Study of the Contact Group on Piracy off the Coast of Somalia, A One Earth Future and Oceans Beyond Piracy Report (2013), 16 et seq., available at: http://oceansbeyondpiracy.org/ publications/burden-sharing-multi-level-governance-study-contact-group-piracy-coast-somalia (accessed on 12 February 2015). 18

Ibid., 21 et seq.

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C. Capacity Building in the Region

As already mentioned, the Contact Group’s Working Group 1 is not only charged with naval coordination but also with capacity building in Somalia and other States in the region. In 2012, a new Capacity-Building Coordination Group was created aiming at coordinating measures by the IMO, several UN entities, the European Commission, other Contact Group participants, Somali authorities, and regional governments.19 The UN system is represented in Somalia by almost twenty different agencies, funds, and programmes, among them the WFP. Their activities were coordinated by the UN Political Office for Somalia which also assisted the political process in the country. In June 2013, it was replaced by the United Nations Assistance Mission for Somalia (UNSOM). The UNSOM has the mandate to provide policy advice to the federal government and the AMISOM on State-building with regard to governance, security sector reform, and the rule of law. Together with the IMO and other UN entities, the UNSOM supports the implementation of the new Somali Maritime Resource and Security Strategy and assists the development of Somalia’s maritime security forces. It also encourages Somalia to declare and define an EEZ in accordance with UNCLOS, which Somalia did in 2014,20 and to adopt modern counter-piracy laws.21 With a view to the suppression of piracy, the UN mainly contributes through the UNODC Counter Piracy Programme working for the improvement of regional justice systems and correction facilities. Since 2012, the EU has complemented its naval operation with a civilian capacity building mission called EUCAP Nestor, carried out under the Common Security and Defence Policy. This mission has three main objectives: first, strengthening the rule of law in the countries of operation, currently Djibouti, the Seychelles, Kenya, Tanzania, and Somalia; second, extending the maritime capacities and training the coast guard bodies of these countries; and third, supporting the build-up of coastal police forces and the judiciary in Puntland and Somaliland. In addition, the EU launched and funds a regional maritime security programme in the region comprising Eastern and Southern Africa and the Indian 19 The Capacity-Building Coordination Group has since been renamed “technical group on Capacity Building,” see Contact Group on Piracy off the Coast of Somalia, Seventeenth Plenary Session, Dubai, 28 October 2014, Communiqué (Final), para. 14, available at: http://www.lessonsfrom piracy.net/files/2014/11/Communique-17th-Plenary-FINAL.pdf (accessed on 12 February 2015). 20

See supra, note 11.

21

UN Doc. S/2013/623 (note 4), para. 64.

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Ocean.22 These efforts are an acknowledgment of the often repeated insight that the problem of Somali piracy cannot be solved at sea alone. Rather, the root causes, such as political and economic instability in the region, fragile governmental structures, and extreme poverty need to be addressed in order to find a sustainable solution to the phenomenon at large.

III. Cooperation between Regional States When looking at the complex cooperation structures dealing with piracy in the region, two good examples for cooperation between the regional States should be pointed out. One is the so-called Djibouti Code of Conduct,23 an agreement that was adopted under the auspices of the IMO in January 2009. It is modelled closely on a similar cooperation mechanism in Southeast Asia, the 2004 Regional Cooperation Agreement on Combating Piracy, and Armed Robbery against Ships in Asia (ReCAAP).24 In contrast to the ReCAAP, the Djibouti Code is not an international treaty but a political commitment made by the signatory States. In the Code, the regional States agreed upon the UNCLOS definition of piracy and a uniform definition of armed robbery at sea.25 This in itself is an achievement in view of the different piracy definitions in domestic law of the regional States. Overall, the Code aims at closer regional cooperation by reporting and sharing relevant information through a number of regional information centres (in Kenya, Tanzania, and Yemen) and national focal points such as the conduct of shared operations at sea; the interdiction and seizure of suspect ships; the rescue of hijacked ships and the repatriation of their crew and passengers; and the apprehension and prosecution of suspects.26 In order to allow prose22

Ibid., para. 52.

23

Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (DCoC), 3 April 2009, IMO Doc. C 102/14. Annex, available at: http://www.imo.org/OurWork/Security/PIU/Documents/DCoC%20English.pdf (accessed on 12 February 2015). Currently, twenty out of 21 regional countries have signed the DCoC (February 2015). 24

Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, 11 November 2004, UNTS 2398, 199 (ReCAAP). 25

Art. 1 DCoC.

26

Arts. 2, 4, 5, 6, 7, 8, 9 DCoC.

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cution and facilitate extradition and judicial assistance, the participants commit themselves to review their national legislation and adopt adequate guidelines for the exercise of jurisdiction.27 Thus, the Code ensures that the regional States have adequate anti-piracy laws and judicial procedures in place. In addition, a Regional Training Centre is being built in Djibouti to enhance coast-guarding capabilities in the region. Such cooperation was meant to not only support the suppression of piracy but also improve the relations between the States in the region. Piracy as an uncontroversial issue has, it would seem, the potential for closer cooperation between the regional States. According to a review made in 2012 by two political scientists at Cardiff University, the Djibouti Code of Conduct was implemented successfully in the more technical areas of training, information sharing, and capacity building.28 As to longterm political cooperation, the authors came to the conclusion, however, that “the level of underlying political support is fragile at best” and “national rivalries and unresolved disputes make a strengthening of cooperation in the near future unlikely.”29 The Djibouti process is complemented by the so-called Kampala process which has become a useful forum of sub-State cooperation between the Federal Government of Somalia, Somaliland (which considers itself an independent State), Puntland, and Galmudug. In the context of the Kampala process, the above-mentioned Somali Maritime Resource and Security Strategy was negotiated and finally adopted in September 2013.30 It aims at securing Somalia’s maritime zones in order to enable the country to use its maritime resources effectively. The second example is the cooperation scheme concerning prosecution and imprisonment of the perpetrators. Due to the lack of political will on the part of States to prosecute and imprison offenders participating in naval operations, almost 90% of the suspects caught at sea have been released.31 In order to stop impunity, a so-called ‘prosecution chain’ has by now been established in the region.32 As a first step, force27

Art. 11 DCoC.

28

Christian Bueger/Mohanvir Singh Saran, Finding a Regional Solution to Piracy: Is the Djibouti Process the Answer?, 18 August 2012, available at: http://piracy-studies.org/2012/finding-a-regionalsolution-to-piracy-is-the-djibouti-process-the-answer/ (accessed on 12 February 2015). 29

Ibid.

30

UN Doc. S/2013/623 (note 4), para. 15.

31

Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, UN Doc. S/2011/30, para. 14. 32

UN Doc. S/2013/623 (note 4), para. 49.

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providing States, NATO, and the EU have concluded transfer agreements with regional States such as Kenya, the Seychelles, and Mauritius. These States agree to prosecute pirate suspects in their courts in accordance with international human rights standards, which are listed in such agreements. Early on, there were discussions on the question whether Article 105 UNCLOS allows the transfer of pirate suspects for prosecution in third countries or rather confers exclusive jurisdiction on the capturing State. The latter view was based on a literal interpretation of the second clause in Article 105 UNCLOS.33 By now, its proponents have had to acknowledge the ongoing transfer practice by a large number of States and the fact that national courts have accepted such transfers as legal. Thus, subsequent practice by States parties to UNCLOS leaves little doubt that Article 105 UNCLOS does not prohibit such transfers.34 Some regional States, however, were not ready to keep convicted Somali offenders in their prisons. Due to limited resources and prison space, the Seychelles and Mauritius made the transfer of prisoners to Somalia a prerequisite for their willingness to act as regional prosecution centres. Therefore, as a second step, these countries concluded post-trial transfer agreements with the Federal Government of Somalia, Somaliland, and Puntland to ensure that pirates, once tried and sentenced, are transferred back to their homeland to serve their sentences.35 Under these agreements, the consent of the transferees and the arresting State is needed.36 This strategy was strongly endorsed by Working Group 2 of the Contact Group and implemented by the UNODC. Supported by a voluntary multi-donor trust fund, the UNODC Counter Piracy Programme assisted in strengthening the regional capacity to prosecute pirate suspects on the one hand, and in building new modern prisons or refurbishing old ones in Somalia on the other. This transfer scheme – seemingly a sensible solution at first sight – results in a legal quagmire. It is far from clear whether the international minimum standards codified 33

Art. 105 UNCLOS reads: “[…] The courts of the State which carried out the seizure may decide on the penalties to be imposed, and may also determine the action to be taken with regard to the ships, […]” (emphasis added). 34

Geiß/Petrig (note 6), 149 et seq., 197.

35

UN Doc. S/2013/623 (note 4), para. 48.

36

Ibid. Five conditions have to be met: (1) the consent of the prosecuting State; (2) the consent of the arresting State; (3) the agreement of the arrested individuals; (4) the individuals to be transferred being over eighteen years old; and (5) the accused person having exhausted all appeals.

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in the UN Human Rights Covenant37 and the European Convention on Human Rights38 are complied with in the regional proceedings. This is especially true for juvenile suspects. For that reason, Working Group 2 is currently discussing a better protection of their human rights in accordance with the UN Convention on the Rights of the Child.39 Even though the UNODC helped to improve the correctional facilities in Somalia, the local standards most probably do not meet the requirements European States would need to see fulfilled in order to consent to the transfer of suspects or convicts.40 A German administrative court decided that the transfer of pirate suspects to Kenya in March 2009 did not meet the minimum human rights standards needed for such a transfer and held it to be illegal.41 Subsequently, Germany has been hesitant to transfer pirate suspects to regional States. While this judgment concerns a transfer from the early days of operation Atalanta and a lot has improved since then, the transfers are still far from being uncontroversial.42 Should the European Court of Human Rights indeed hold such transfers to be in violation of the European Convention on Human Rights, the strategy of the ‘prosecution chain’ may well collapse. The probability of human rights violations cast a shadow of doubt on this cooperative mechanism which is why UN-assisted specialised piracy chambers in the region would have been the preferable option.43

37 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (ICCPR). 38 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No.5 (ECHR). 39

Convention on the Rights of the Child, 20 November 1989, UNTS 1577, 3.

40

Geiß/Petrig (note 6), 209 et seq.

41

Administrative Court of Cologne (Verwaltungsgericht Köln ), 25 K 4280/09 of 11 November 2011, reprinted in: Hamburger Zeitschrift für Schiffahrtsrecht 4 (8) (2012), 153. The appeal has been dismissed recently, see Higher Administrative Court of North Rhine-Westphalia (Oberverwaltungsgericht NRW), 4 A 2948/11 of 18 September 2014, available at: http://www.justiz.nrw.de/nrwe/ovgs/ ovg_nrw/j2014/4_A_2948_11_Urteil_20140918.html (accessed on 20 November 2014). 42 Håkan Friman/Jens Lindborg, Initiating Criminal Proceedings with Military Force: Some Legal Aspects of Policing Somali Pirates by Navies, in: Douglas Guilfoyle (ed.), Modern Piracy – Legal Challenges and Responses (2013), 172, 192 et seq. 43

Geiß/Petrig (note 6), 184 et seq.

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IV. Cooperation Concerning the Use of Private Armed Guards Probably one of the best known (or at least: most-discussed) aspects in which private actors are involved in the efforts to face the piracy threat is the employment of so-called Privately Contracted Armed Security Personnel. Praised as one of the most effective countermeasures against piracy, they have become increasingly popular and are nowadays regularly employed on merchant vessels. So far, no vessel under the protection of armed guards has been successfully hijacked.44 However, this phenomenon brings with it some negative side effects.45 Be it private security companies violating national law by storing weapons illegally on the territory of third States,46 or the use of deadly force against fishermen,47 private armed guards on board merchant vessels pose a potential risk. Legal problems can only be reduced by flag State legislation setting high-quality standards for the industry and close scrutiny with regard to compliance. This issue has been discussed contentiously within Working Groups 2 and 3 of the Contact Group, the IMO, and other fora. At first, the IMO was against using private armed guards onboard merchant vessels but finally left this matter for the flag States, who had been divided on the issue, to decide. Pushed by shipping industry groups, who wanted internationally accepted standards to reduce their liability risk, the IMO adopted both the interim guidance on the use of privately contracted armed security personnel on board ships48 and the interim guidance to private

44 Stephen Hammond, UK Minister for Shipping, in: UK Department of Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances (2013), 6, available at: https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/204123/use-of-armed-guards-to-defend-against-piracy.pdf (accessed on 12 February 2015). 45 Doris König/Tim René Salomon, Private Sicherheitsdienste auf Handelsschiffen – Rechtliche Implikationen, PiraT Arbeitspapier zur Maritimen Sicherheit Nr. 2, 35–39, availabe at: http://www. maritimesecurity.eu/fileadmin/content/news_events/workingpaper/PiraT_Arbeitspapier_Nr2_201 1_Koenig-Salomon.pdf (accessed on 12 February 2015). 46

Jeffrey Gettleman, Eritrea Detains Four Antipiracy Contractors, The New York Times, 11 June 2011, available at: http://www.nytimes.com/2011/06/12/world/africa/12eritrea.html (accessed on 12 February 2015). 47 Indian Police Detain Italian Navy Security Guards, BBC, 20 February 2012, available at: http:// www.bbc.co.uk/news/world-asia-india-17093224 (accessed on 12 February 2015). 48 Revised Interim Guidance to Shipowners, Ship Operators and Shipmasters on the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, 25 May 2012, IMO Doc. MSC.1/Circ.1405/Rev.2.

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maritime security companies.49 These guidelines contain minimum standards ship owners and operators should require and private maritime security companies should fulfil. Even though they are not legally binding, they can serve as role models for national legislators, and national courts could draw on them when interpreting general legal terms such as ‘negligence’ and ‘due diligence.’ After lengthy discussions as to whether military or police personnel should protect German-flagged merchant vessels – an option preferred by German ship-owners – Germany adopted fairly complex legislation on the authorisation of maritime security providers in March 2013.50 Maritime security companies must be authorised by State agencies. In order to get authorisation, the companies and their employees have to meet certain quality standards and procedural requirements which are closely modelled on the IMO guidelines. While this seems to be a sensible way to deal with the issue, the devil, as always, is in the detail. No less than three State agencies are involved in the process.51 Ship owners and operators are obliged to employ only authorised maritime security providers on German-flagged vessels. In case of non-compliance, they risk a fine of up to 50.000 EUR.52 This relatively small fine is, in comparison with the amount of money saved by employing a non-certified cheaper security firm, not appropriate to deter violations.53 In addition, the lack of effective on-board 49

Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on board Ships in the High Risk Area, 25 May 2012, IMO Doc. MSC. 1/Circ.1443. 50 Law for the Introduction of a Licensing Procedure for Security Companies on board Ocean-going Vessels (Gesetz zur Einführung eines Zulassungsverfahrens für Bewachungsunternehmen auf Seeschiffen), 4 March 2013, Bundesgesetzblatt (BGBl.) I, 362. 51 Federal Office of Economics and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle), Federal Police (Bundespolizei), and Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrografie). For more detail see Doris König/Tim René Salomon, Fighting Piracy – The German Perspective, in: Panos Koutrakos/Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (2014), 225, 241 et seq.; Tim René Salomon/ Sebastian tho Pesch, Das Zulassungsregime für bewaffnete Sicherheitsdienste auf Handelsschiffen, Die Öffentliche Verwaltung 66 (19) (2013), 760, 765. 52 Section 7 para. 1(b) and section 12 para. 1 No. 5 of the Ordinance for Security on Ocean-going Vessels (Verordnung zur Eigensicherung von Seeschiffen zur Abwehr äußerer Gefahren), 19 September 2005, BGBl. I, 2787, as amended on 29 July 2013, BGBl. I, 2812, in accordance with section 15 para. 1 No. 2 and para. 2 of the Federal Maritime Responsibilities Act (Gesetz über die Aufgaben des Bundes auf dem Gebiet der Seeschiffahrt), 24 May 1965, BGBl. II, 833, as amended on 19 October 2013, BGBl. I, 3836. 53

Salomon/tho Pesch (note 51), 766 et seq.

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monitoring and control mechanisms makes it quite unlikely that German authorities will actually acquire knowledge of prohibited or questionable behaviour by private armed guards at sea. Furthermore, ship owners might be tempted to flag out to avoid costs and bureaucracy. Therefore, the new German legislation might turn out to be less effective than expected. Even though the employment of maritime security providers has now been regulated more clearly, one problem remains unsolved, namely coastal States’ opposition in the region. Faced with a growing use of private armed guards on board merchant vessels in their territorial and internal waters, coastal States have reacted in different ways. Some do not allow weapons on board ships when transiting their territorial waters. While prohibiting passage is, however, not in compliance with Articles 19 (2), 21 and 24 UNCLOS, others make the passage of vessels under armed protection subject to a fee which is in violation of Article 26 UNCLOS. Be that as it may, private security personnel and shipmasters are in fear of getting arrested and prosecuted once they call at ports of such States. The pertinent IMO Interim Recommendations for Port and Coastal States54 are a helpful first step, but more information-sharing, transparency, and cooperation between coastal and port States in the region, flag States, and private stakeholders is still needed.

V. Conclusions and Outlook The challenge of piracy off the coast of Somalia and in the Indian Ocean – a threat to the international community at large – has led to a complex multi-layer web of cooperation involving numerous actors the coordination of whom has proven far from easy. However, coordinated measures at the international, regional, national, and local levels on land and at sea are illustrative of the lesson learned: A comprehensive approach and cooperation are the only means to deal with maritime security phenomena. The centre of coordination, cooperation, and progressive development has been the Contact Group on Piracy off the Coast of Somalia. Focused on interstate cooperation at the outset, it soon became a forum where States, UN entities, international 54 Revised Interim Recommendations for Port and Coastal States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, 25 May 2012, IMO Doc. MSC.1/Circ.1408/Rev.1.

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and regional organisations, industry groups, and other stakeholders worked together efficiently and effectively. It is interesting to note – and for international lawyers perhaps disappointing – that it was not the UN or any other international governmental organisation which took the lead, but an informal ad hoc group of States which was initiated and substantially supported by the US and other like-minded nations.55 The informality and flexibility of this forum allowed, for instance, the inclusion of subState actors in Somalia who in practice have control over large parts of Somalia. The Contact Group’s work focused on providing guidance on military, technical and legal aspects, and pragmatic implementation, in short: policing and law-enforcement. It aimed at developing solutions with an immediate impact to quickly contain and mitigate the situation.56 The flip side of the coin is, however, a decreasing interest of governments once the threat of piracy has diminished and the lack of a long-term strategy to fight piracy in a sustainable manner. The lesson learned from this particular cooperative model is that it works well under certain conditions: the issue focus must be narrow, the problem must be urgent and threaten vital international (commercial) interests, States must have a self-interest in solving the problem immediately and providing the necessary financial means, and there must not be countervailing political pressures leading to opposition and impairment of the common efforts. Informal ad hoc cooperation is well suited to develop short-term solutions for a particular problem. It is doubtful, however, whether it can also provide for sustainable solutions in the long run. In its most recent resolution on Somali piracy, the Security Council emphasised that “without further action, the significant progress made in reducing the number of successful pirate attacks is reversible.”57 Therefore, it is now necessary to focus more on state-building in Somalia and its economic development to eliminate the root causes of Somali piracy. The Somali Compact negotiated between Somalia, UN entities, the EU, and interested States last year is at least a promising start.

55

Zach/Seyle/Madsen (note 17), 35.

56

Ibid., 38 et seq.

57

SC Res. 2125 of 18 November 2013, Preamble.

Dispute Settlement in Multi-Layered Constellations: International Law and the EU ALEXANDER PROELSS(

ABSTRACT: In recent years, jurisdictional conflicts between the Court of Justice of the European Union and international courts and tribunals have attracted more and more attention in legal writings. Such conflicts have emerged as a consequence of the fragmentation of international law on the one hand and the ever continuing growth of subject areas covered by European law on the other. This article attempts to critically examine the relevant case-law of the Court of Justice of the European Union. Particular attention is paid in this regard to the effects that the Court has allocated to Article 344 TFEU as far as its own jurisdiction is concerned. It is argued that the Unions institutions, including the Court, are under an obligation by virtue of primary Union law to interpret and apply this legal system in a manner friendly toward the international legal obligations of the Member States. Whether or not the Court’s jurisdiction in relation to other international courts and tribunals ought to be regarded as exclusive should thus be assessed on a case-by-case basis, depending on whether the initiation of arbitral proceedings or the decision rendered by the court or tribunal concerned, respectively, constitutes a challenge to the uniform interpretation and application of the Union legal system. KEYWORDS: Exclusive Jurisdiction of CJEU, Overlapping Jurisdictions, Autonomy of EU Law, EU as Actor in International Relations, MOX Plant Cases, Mixed Agreements, Duty of Loyalty

I. Introduction In recent years, jurisdictional conflicts between the Court of Justice of the European Union (CJEU) and international courts and tribunals have attracted more and more attention in legal writings.1 Such conflicts have emerged as a consequence of the (

Professor of Public International Law and European Law, Director of the Institute for Environmental and Technology Law, Trier University, Germany. 1

See e.g. Vaughan Lowe, Overlapping Jurisdiction in International Tribunals, Australian Yearbook of International Law 20 (1999), 191–204; Nikolaos Lavranos, Concurrence of Jurisdiction between the ECJ and other International Courts and Tribunals (Part I), European Environmental Law Review

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fragmentation of international law on the one hand and the ever continuing growth of subject areas covered by European law on the other. In cases where an international agreement provides for the possibility to establish an arbitral tribunal, or where the jurisdiction of an international court is prescribed by the agreement concerned, the question arises whether the Member States are still entitled to submit disputes between them to the settlement mechanism foreseen by that agreement. From the intra-Union perspective, this question is addressed by Article 344 Treaty on the Functioning of the European Union (TFEU),2 according to which the “Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.” But does this provision also apply (and in case of affirmation: to what extent) to dispute settlement in multilayered constellations? How far does and should the autonomy of EU law reach with regard to international dispute settlement mechanisms? Interestingly, the issue relevant here has mainly emerged in the context of disputes concerning the field of the international law of the sea. On the one hand, this is because the EU has been allocated vast legislative powers for the regulation of marine affairs. It enjoys exclusive prescriptive competence in the field of the conservation of marine biological resources under the common fisheries policy (cf. Article 3 (1)(d) TFEU) and shared competences to regulate matters of transport3 and of protection of the (marine) environment.4 In the majority of cases, these legislative powers are not limited to the adoption of EU secondary law measures, i.e. measures exclusively directed against and binding upon the EU Member States. Rather, Article 216 (1) TFEU emphasises that:

(EELR) 14 (2005), 213–225; id., Concurrence of Jurisdiction between the ECJ and other International Courts and Tribunals (Part II), EELR 14 (2005), 240–251; Tobias Lock, Das Verhältnis zwischen dem EuGH und internationalen Gerichten (2010); Matthias Müller, Das Rechtsprechungsmonopol des EuGH im Kontext völkerrechtlicher Verträge: Untersucht anhand der Rechtsprechung des Gerichtshofs der Europäischen Union (2012). 2 Treaty on the Functioning of the European Union, 26 October 2012, OJ 2012 C 326, 47 (consolidated version 2012) (TFEU). 3 See Art. 4 (2)(g) TFEU. The Common Transport Policy of the EU (CTP) also encompasses the field of sea transport; see Art. 100 (2) TFEU. 4 See Art. 4 (2)(e) TFEU. For more information see Veronica Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level (2007), 43 et seq.; Henrik Ringbom, The EU Maritime Safety Policy and International Law (2008), 53 et seq.; Alexander Proelss, Meeresschutz im Völker- und Europarecht: Das Beispiel des Nordostatlantiks (2004), 268 et seq.

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The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

As the TFEU does not expressly confer any power on the EU concerning the conclusion of treaties in the field of the international law of the sea, the Union, by referring to the alleged necessity of becoming a party to the agreements concerned, has made use of its implicit treaty-making power to accede to numerous relevant agreements, including the United Nations Convention on the Law of the Sea (UNCLOS)5 and the Straddling Fish Stocks Agreement.6 It has also become a member to several international organisations, such as the Food and Agriculture Organization of the United Nations (FAO), the OSPAR and Helsinki Commissions established by agreements addressing the protection of the marine environment of certain European marine areas,7 and various regional fisheries management organisations.8 At the same time, many of the agreements concerned envisage the possibility to settle disputes that have arisen between its parties by requesting the establishment of an arbitral tribunal. Article 286 UNCLOS even obliges the parties to this agreement to submit any dispute concerning its interpretation or application at the request of any party to the dispute to compulsory procedures entailing binding decisions, provided that no settlement has been reached by way of exchange of views or conciliation, respectively. It is thus not surprising that most cases analysed below are characterised by a strong marine component. Due to the particularly elaborated nature of the pertinent dispute 5 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). See Council Decision of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the Implementation of Part XI thereof, OJ 1998 L 179, 1–2. 6 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, UNTS 2167, 3 (Straddling Fish Stocks Agreement). See Council Decision of 8 June 1998 on the ratification by the European Community of the Agreement for the Implementing of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks, OJ 1998 L 189, 14–16. 7 Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, UNTS 2354, 67 (OSPAR Convention); Convention on the Protection of the Marine Environment of the Baltic Sea Area, 17 March 1992, UNTS 2009, 197 (Helsinki Convention). 8

For a detailed analysis see Rachel Frid, The Relations between the EC and International Organizations: Legal Theory and Practice (1995).

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settlement schemes9 as well as the political weight of the EU as an actor in marine affairs, the international law of the sea can even be regarded as constituting a reference area in respect of the issue of dispute settlement in multi-layered constellations. The following analysis will begin with a survey of the relevant case-law of both the CJEU and international courts and tribunals. Based on a brief analysis of the foundations of the autonomy of the Union legal system and of the relationship between that system and international treaty law, it will then critically examine the case-law of the Court. Particular attention will be paid in this regard to the effects that the Court has allocated to Article 344 TFEU as far as its own jurisdiction is concerned.

II. Relevant Case-Law This section will present how the pertinent international and supranational courts have dealt with the existence of the duty of EU Member States to “undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein” (Article 344 TFEU). It will start with an account of the jurisprudence of the CJEU concerning Article 344 TFEU and will then depict how international arbitral tribunals have so far addressed and reacted to the autonomy of the EU legal system. The following section will then submit a critical appraisal of the relevant case-law from an intra-Union perspective, i.e. by particularly focusing on the approach taken by the CJEU.A. Jurisprudence of the Court of Justice of the European Union As far as the case-law of the CJEU is concerned, the relevance of Article 344 TFEU or its predecessor provisions, respectively,10 has so far been limited, yet only in terms of quantity. In Opinion 1/91, in which the Court assessed the compatibility of the 9 The judicial development is examined by Tim Stephens, International Courts and Environmental Protection (2009), 196–244. 10

Cf. Art. 292 Treaty Establishing the European Community (TEC) (as defined by the Treaty of Amsterdam Amending the Treaty on the European Union, the Treaties Establishing the European Communities and Certain Related Acts, 10 November 1997, OJ 1997 C 340 (Amsterdam Treaty)); Art. 219 TEC (in terms of the consolidated version after the Maastricht Treaty on European Union, 7 February 1992, OJ 1992 C 191, 1); Art. 219 Treaty Establishing the European Economic Community, 25 March 1957, available via: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX: 11957E/TXT (accessed on 31 January 2015) (EEC Treaty).

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system of judicial supervision to be set up under the first version of the agreement on the creation of the European Economic Area (EEA Agreement)11 with the EEC Treaty, it held that: It follows that the jurisdiction conferred on the EEA Court under Article 2(c), Article 96(1)(a) and Article 117(1) of the agreement is likely adversely to affect the allocation of responsibilities defined in the Treaties and, hence, the autonomy of the Community legal order, respect for which must be assured by the Court of Justice pursuant to Article 164 of the EEC Treaty. This exclusive jurisdiction of the Court of Justice is confirmed by Article 219 of the EEC Treaty, under which Member States undertake not to submit a dispute concerning the interpretation or application of that treaty to any method of settlement other than those provided for in the Treaty.12

The ECJ took the view that an international agreement providing for a system of courts, including a court with jurisdiction to settle disputes between the States parties to the agreement, would in principle be compatible with Community law, even if the decisions of that Court would (also) be binding on the Community institutions (including the ECJ).13 The external competences of the Community would necessarily imply the possibility to accept the jurisdiction of a Court competent for the interpretation and application of the provisions of an agreement to which the EC has itself become a party.14 However, as the EEA Agreement “had the effect of introducing into the Community legal order a large body of legal rules which is juxtaposed to a corpus of identically-worded Community rules,”15 the jurisdiction of the Court to be established by that Agreement was considered by the ECJ as endangering the autonomy of the Community legal order. In Opinion 1/00, the Court was then asked to adjudicate on the compatibility of a proposed agreement on the establishment of a European Common Aviation Area (ECAA Agreement) with the provisions of the EC Treaty. It held that the procedure

11

Agreement on the European Economic Area, 3 January 1994, OJ 1994 L 1, 3 (EEA Agreement).

12

ECJ, Opinion 1/91, Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, 1991 ECR I-6079, para. 35. 13

Ibid., paras. 39 et seq.

14

Ibid., para. 40.

15

Ibid., para. 42.

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for dispute resolution foreseen by that treaty did not conflict with Article 292 TEC,16 as it neither touched upon the essential character of the powers of the Community and its institutions as conceived in the Treaty, nor did it “have the effect of binding the Community and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law referred to in [the ECAA] Agreement.”17 From the perspective of the ECJ, the fact that the international court’s case-law can in no circumstances affect the case-law of the Court ought to be regarded as fundamentally important with regard to whether or not the autonomy of the European legal order is affected.18 In Opinion 1/09 (addressing the compatibility of the envisaged agreement creating a Unified Patent Litigation System with the TFEU), the CJEU held that the planned conferral of jurisdiction on a European and Community Patent Court (PC) concerning cases relating to the validity and/or application of Community patents could not be in violation of Article 344 TFEU, as the jurisdiction that was planned to be transferred to the PC would only extend to disputes between individuals on the field of patents.19 It thereby indirectly emphasised the main objective of that provision, namely to prevent that the uniform interpretation and application of European law, and thus its autonomous nature, may be challenged by other courts whose jurisdiction is established by way of conclusion of international agreements.20 According to the CJEU, such challenges may arise in particular in situations where both the EU and the Member States are parties to the pertinent agreement, since decisions of an international court established on the basis of such an agreement may, by defining the

16

Id., Opinion 1/00, Proposed Agreement between the European Community and non-Member States on the Establishment of a European Common Aviation Area, 2002 ECR I-3493, para. 17. 17

Ibid., para. 13. See also id., Opinion 1/91 (note 12), paras. 61 et seq.; id., Opinion 1/92, Draft Agreement between the Community, on the one Hand, and the Countries of the European Free Trade Association, on the Other, Relating to the Creation of the European Economic Area, 1992 ECR I-2821, paras. 32, 41. 18

See id., Opinion 1/00 (note 16), para. 6 with reference to Opinion 1/92 (note 17), paras. 18 et seq.

19

CJEU, Opinion 1/09, Draft Agreement – Creation of a Unified Patent Litigation System – European and Community Patents Court – Compatibility of the Draft Agreement with the Treaties, 2011 ECR I-1137, para. 63. 20 See also Matthias Müller, Die Errichtung des Europäischen Patentgerichts: Herausforderung für die Autonomie die EU-Rechtssystems?, Europäische Zeitschrift für Wirtschaftsrecht 21 (2010), 851, 853.

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respective powers of the Member States on the one hand and the Union on the other, affect the allocation of competences laid down in the TEU21 and TFEU.22 The importance of Article 344 TFEU became particularly manifest in the ECJ’s judgment in the MOX Plant Case.23 Ireland had initiated arbitral proceedings in 2001 against the United Kingdom (UK) under both the OSPAR Convention and the UNCLOS for violations of the provisions contained in the two international treaties addressing the protection of the marine environment.24 Following a letter from the Executive Secretary of the OSPAR Commission informing it of the proceedings brought by Ireland before the OSPAR Arbitral Tribunal, the European Commission requested Ireland to suspend all proceedings it had initiated before international tribunals against the UK. As this call remained unsuccessful, the Commission commenced infringement proceedings against Ireland before the ECJ on the basis of what is today Article 258 TFEU due to an alleged violation of Article 344 TFEU. The Court’s judgment in the MOX Plant Case is thus the only decision rendered by the ECJ where a direct violation of Article 344 TFEU by a Member State was under discussion. Unsurprisingly, the Court followed the Commission’s argumentation on the whole. Relying on its Opinions 1/91 and 1/00, it emphasised once again the direct relationship between its exclusive jurisdiction in terms of Article 344 TFEU and the autonomy of the Union’s legal system.25 According to the Court, this autonomy was not only challenged by way of initiation of arbitral proceedings on the basis of international agreements to which the EU is a party, but also in light of the fact that in the 21 Treaty on European Union (Lisbon), 9 May 2008, OJ 2008 C 115, 13 (consolidated version) (TEU). 22

ECJ, Opinion 1/00 (note 16), 15 et seq. According to one source, the structure and content of the so-called patent package that was ultimately adopted by the EU and its Member States in 2013 was chosen just in order to avoid the CJEU’s jurisdiction in interpreting patent law. See Thomas Jaeger, Shielding the Unitary Patent from the ECJ: A Rash and Futile Exercise, International Review of Intellectual Property and Competition Law 44 (2013), 389, 391. 23

ECJ, Case C-459/03, Commission v. Ireland, 2006 ECR I-4635.

24

Ireland had further submitted a request for provisional measures in accordance with Art. 290 (5) UNCLOS to the International Tribunal for the Law of the Sea (ITLOS). 25

ECJ, Case 459/03 (note 23), para. 123: “[A]n international agreement cannot affect the allocation of responsibilities defined in the Treaties and, consequently, the autonomy of the Community legal system, compliance with which the Court ensures under Article 220 EC. That exclusive jurisdiction of the Court is confirmed by Article 292 EC, by which Member States undertake not to submit a dispute concerning the interpretation or application of the EC Treaty to any method of settlement other than those provided for therein […]”.

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arbitral proceedings before the Tribunal established under Annex VII UNCLOS Ireland had, pursuant to Article 293 (1) UNCLOS, also invoked EU secondary law measures in order to demonstrate the unlawfulness of the UK’s course of action. The ECJ held that “[t]hat is at variance with the obligation imposed on Member States by Articles 292 EC and 193 EA to respect the exclusive nature of the Court’s jurisdiction to resolve disputes concerning the interpretation and application of provisions of Community law,”26 and that “the institution and pursuit of proceedings before the Arbitral Tribunal […] involve a manifest risk that the jurisdictional order laid down in the Treaties and, consequently, the autonomy of the Community legal system may be adversely affected.”27 The Court ultimately decided that by instituting dispute-settlement proceedings under the UNCLOS, Ireland failed to fulfil its obligations under what are today Article 4 (3) TEU and Article 344 TFEU.

A. Case-Law of International Arbitral Tribunals

1. MOX Plant Arbitrations How did the international arbitral tribunals that were facing situations of dispute settlement in multi-layered constellations address the issue of autonomy of the EU legal system? The Arbitral Tribunal established under Annex VII UNCLOS in the MOX Plant Arbitration took an approach friendly to the jurisdiction of the ECJ. It observed that before proceeding to any final decision on the merits, the Tribunal must satisfy itself that it has jurisdiction in a definitive sense. Moreover, even to proceed to hear argument on the merits of the dispute brought before it, the Tribunal needs to be satisfied at least that there are no substantial doubts as to its jurisdiction.28

Concerning objections raised by the UK to its jurisdiction in respect of European Community law, the Tribunal then referred to a written answer given by the Euro26

Ibid., para. 152.

27

Ibid., para. 154.

28

The MOX Plant Case (Ireland, United Kingdom), Order of 24 June 2003, ILM 42 (2003), 1187, para. 15.

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pean Commission in the European Parliament on 15 May 2003, which was brought to the Tribunal’s attention only five days before the commencement of the hearings. It took note of the possibility that the Commission would decide to institute proceedings against Ireland under what is today Article 258 TFEU and held that the European Court of Justice may be seised of the question whether the provisions of the Convention on which Ireland relies are matters in relation to which competence has been transferred to the European Community and, indeed, whether the exclusive jurisdiction of the European Court of Justice, with regard to Ireland and the United Kingdom as Member States of the European Community, extends to the interpretation and application of the Convention as such and in its entirety.29

Against the background of the autonomous nature of the EU legal system,30 the Tribunal concluded by reference to “considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States”31 that the arbitral proceedings initiated in accordance with Annex VII UNCLOS should be suspended.32 Following the ECJ’s judgment of 30 May 2006, Ireland withdrew its claim from the Annex VII Tribunal on 15 February 2007. The opposite approach was taken by the Arbitral Tribunal established in accordance with Article 32 (3)(a) OSPAR Convention.33 The Tribunal essentially ignored the implications of a decision on the merits on the EU legal system by arguing that the OSPAR Convention would contain a “particular and self-contained dispute resolution mechanism,” in the context of which the similar language of Article 9 OSPAR Convention and secondary EU law would not “limit a Contracting Party’s choice of a legal forum to only one of the two available, i.e. either the ECJ or an OSPAR tribunal.”34 With reference35 to an order rendered by the ITLOS on request of Ireland

29

Ibid., para. 21.

30

Ibid., para. 24.

31

Ibid., para. 28.

32

Ibid., para. 29.

33

Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland, United Kingdom), Final Award of 2 July 2003, ILM 42 (2003), 1118–1186. 34

Ibid., para. 143.

35

Ibid., para. 141.

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for provisional measures in accordance with Article 290 (5) UNCLOS,36 the Tribunal concluded that: “The primary purpose of employing the similar language is to create uniform and consistent legal standards in the field of the protection of the marine environment, and not to create precedence of one set of legal remedies over the other.”37 Concerning the merits, it decided that the UK had not violated its obligations vis-à-vis Ireland under Article 9 OSPAR Convention.38

2. IJzeren Rijn Arbitration Another dispute between two EU Member States concerning the interpretation and application of an international agreement was settled by way of arbitral award in the IJzeren Rijn Case. In July 2003, Belgium and the Netherlands agreed to submit to an arbitral tribunal established under the auspices of the Permanent Court of Arbitration (PCA) a dispute between them concerning the so-called Iron Rhine railway line.39 This line connects the port of Antwerp, Belgium, with the Rhine basin in Germany, and crosses through the Netherlands provinces of Noord-Brabant and Limburg. The dispute concerned issues related to the use, restoration, adaptation, and modernisation of the Iron Rhine railway as well as the question which of the two States would have to pay the costs for the re-opening of that line, and was to be answered on the basis of Article XII Treaty between Belgium and the Netherlands relative to the Separation of their Respective Territories of 1839.40 Thus, the situation in the IJzeren Rijn Arbitration differed from that in the MOX Plant arbitrations to the effect that the EU was not a party to the pertinent agreement.

36 The MOX Plant Case (Ireland, United Kingdom), Request for Provisional Measures, Order of 3 December 2001, ILM 41 (2002), 405–437. 37

Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (note 33), para. 143; see also ibid., para. 142: “Each of the OSPAR Convention and Directive 90/313 is an independent legal source that establishes a distinct legal regime and provides for different legal remedies”. 38

Ibid., para. 185.

39

The arbitration agreement is available via: http://www.pca-cpa.org/showpage.asp?pag_id=1155 (accessed on 17 November 2014). 40

Treaty between Belgium and the Netherlands relative to the Separation of their Respective Territories, Consolidated Treaty Series (CTS) 88, 427 (1839 Treaty of Separation).

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What makes the dispute particularly relevant in the present context is that the two parties to the dispute had repeatedly referred to provisions of secondary EC law in their submissions. In their exchange of notes by which the Arbitration Agreement was concluded, the parties had concordantly requested the Tribunal “to render its decision on the basis of international law, including European law if necessary, while taking into account the Parties’ obligations under article 292 of the EC Treaty.”41 The Tribunal in its final award took note of the exclusive jurisdiction of the ECJ under what is today Article 344 TFEU42 and considered the reference made to Article 292 TEC by the parties to the dispute as drawing limits to its jurisdiction.43 It regarded its position analogous to that of a domestic court within the Community, which is why it examined whether such a court would, if faced with a situation parallel to that of the Tribunal, be under an obligation to refer the matter to the ECJ in accordance with what is today Article 267 (3) TFEU.44 The Tribunal then identified Articles 154–156 TEC on trans-European networks (TEN) as well as secondary EC measures addressing the protection of the environment, in particular the Habitats Directive45 and the Birds Directive,46 as being potentially applicable, but in both instances concluded that it would not be necessary to decide on the interpretation of the provisions and measures concerned.47 Thus, the Tribunal decided that the questions of EC law involved in the dispute would not affect any obligations under what is today Article 344 TFEU.

B. Assessment

This section will provide a critical assessment of the relevant case-law presented above. It will take an intra-Union perspective, i.e. focus on the persuasiveness of the jurisprudence of the CJEU concerning Article 344 TFEU. In doing so, it will first 41

Arbitration Agreement (note 39).

42

Arbitration Regarding the Iron Rhine (“IJzeren Rijn”) Railway (Belgium, Netherlands), Arbitral Award of 24 May 2005, Reports of International Arbitral Awards (RIAA) XXVII, 35, paras. 99 et seq. 43

Ibid., para. 103.

44

Ibid., paras. 103 et seq.

45

Council Directive 92/43/EEC of 21 May 1992, OJ 1992 L 206, 7.

46

Council Directive 79/409/EEC of 2 April 1979, OJ 1997 L 103, 1.

47

Iron Rhine Arbitration (note 42), paras. 120 and 137.

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briefly recapitulate the foundations of the concept of autonomy as well as examine the scope of the Court’s jurisdiction with regard to international agreements entered into by the Union and/or its Member States, on the one hand, and third States, on the other. It will then be analysed whether the approach taken by the CJEU concerning the scope of its own jurisdiction in relation to that of international courts and tribunals is founded on a correct interpretation of the relevant provisions of primary Union law.

1. Autonomy of EU Law The concept of autonomy of EU law draws on the famous statement made by the ECJ in its 1964 Costa/ENEL judgment where it held that: “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.”48 The reasons for this differentiation between “ordinary” international treaties and the treaty that is today the TFEU were seen by the Court in (1) the creation of a community of unlimited duration, (2) the existence of own institutions and personality, (3) the existence of legal capacity and capacity of representation on the international plane, and (4) the existence of “real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community.”49 Already one year earlier had the Court drawn the conclusion that: “[T]he Community constitutes a new legal order of international law for the benefit of which States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.”50 According to the Court, this legal system must not only be distinguished from ordinary international treaties, but also from the legislation of the Member States.51 Its main objective, i.e. the establishment of a single 48

ECJ, Case C-6/64, Flaminio Costa v. E.N.E.L.,1964 ECR 588, 593.

49

Ibid.

50

Id., Case C-26/62, van Gend & Loos v. Netherlands Inland Revenue Administration, 1963 ECR 2, 12. 51

Ibid. Note that irrespective of what has occasionally been argued in legal literature (see, e.g., Thomas Giegerich, Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozess: Wechselseitige Rezeption, konstitutionelle Evolution und föderale Verflechtung

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European market in terms of Article 3 (2) and (3) TEU, could only be achieved if the law governing its existence and operation would be uniformly applied throughout the entire Union: The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the discrimination prohibited by Article 7.52

Undeniably, uniform application of EU law within the domestic legal systems of the Member States necessarily requires that it is consistently interpreted. This requirement has been placed by the Court in the duty of loyal cooperation which is today codified in Article 4 (3) TEU as well as in the principle of effectiveness of EU law.53 Article 19 (1) TEU and Article 267 TFEU make it clear that the CJEU is the institution that is exclusively competent for safeguarding the consistent interpretation of EU law. As far as the relationship to other courts is concerned, in particular those whose jurisdiction is based on international agreements, Article 344 TFEU then confirms that “only the European Court of Justice ultimately has the power to decide authoritatively questions of the interpretation or application of EC law.”54

(2003), 646 et seq., 667 et seq., 671 et seq.), this author agrees with the view that the fact that EU law constitutes an ‘autonomous’ normative system also in relation to national legislation is not tantamount to a non-derivative character; cf. Alexander Proelss, Bundesverfassungsgericht und überstaatliche Gerichtsbarkeit (2014), 64 et seq., 69 et seq. The Federal Constitutional Court of Germany held in its Lisbon Decision that “[t]he ‘Constitution of Europe’, international treaty law or primary law, remains a derived fundamental order. It establishes a supranational autonomy which undoubtedly makes considerable inroads into everyday political life but is always limited factually. Here, autonomy can only be understood – as is usual regarding the law of self-government – as an autonomy to rule which is independent but derived, i.e. is granted by other legal entities,” Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 123, 267, 349; official English translation available at: http://www. bverfg.de/entscheidungen/es20090630_2bve000208en.htmlJune 11, 2015 (accessed on 17 November 2014). 52

ECJ, Case C-6/64 (note 48), 594.

53

See id., Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentación SA, 1990 ECR I-4135, paras. 8 et seq.; id., Case C-397/01, Bernhard Pfeiffer and Others, 2004 ECR I-8835, para. 114: “The requirement for national law to be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it […]”. 54

Iron Rhine Arbitration (note 42), 101.

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2. Scope of CJEU Jurisdiction Concerning International Treaties Concerning dispute settlement in multi-layered constellations, the scope of powers of the CJEU cannot be assessed without addressing the relationship between international treaty law on the one hand and EU law on the other. In this respect, two situations ought to be differentiated.

a) EU Has Acceded to International Agreement The first one refers to cases where the EU has made use of its power allocated to it by the Member States to accede to an international agreement.55 It should be kept in mind, though, that the subject matter of an international agreement is usually not limited to areas with regard to which the EU exercises exclusive powers in terms of Article 3 (1) TFEU. If some parts of a multilateral agreement fall within the exclusive competence of the Union and others within the exclusive competence of the Member States, the agreement concerned must be concluded by both the Member States and the Union in terms of a mixed agreement.56 In contrast, if the agreement in question affects areas for all of which the Union as well as the Member States, respectively, hold shared competences, the conclusion of a mixed agreement – although legally admissible – is not necessary.57 Notwithstanding its general recognition, it has correctly been stated that “[t]he phenomenon of mixed agreements is still surrounded by a host of question marks, both of a theoretical and practical nature.”58 This statement must be consented to in particular with regard to the scope of jurisdiction of the CJEU concerning the interpretation and application of such agreements. While Article 216 (2) TFEU rules that “[a]greements concluded by the Union are binding upon the institutions of the 55

Again, the central provision is Art. 216 (1) TFEU.

56

See Allan Rosas, Mixed Union – Mixed Agreements, in: Martti Koskenniemi (ed.), International Law Aspects of the European Union (1998), 125, 131: “obligatory mixity”. 57 58

Ibid., 130 et seq.

Ibid., 127. The legal status of mixed agreements under public international law is not addressed here. For further information on this issue see Eleftheria Neframi, International Responsibility of the European Community and of the Member States under Mixed Agreements, in: Enzo Cannizzaro (ed.), The European Union as an Actor in International Relations (2002), 193, 198 et seq.

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Union and on its Member States,” neither this nor any other provision of primary EU law provides a clear answer to the question to what extent the Court is competent to interpret the provisions of a mixed agreement or assess the validity of a secondary EU law act in light of such an agreement. Opinions in legal writings are split on whether or not the Court is entitled to exercise its jurisdiction also in respect of the provisions of a mixed agreement for which the Member States have not transferred powers on the EU, i.e. have remained exclusively competent.59 Based on a detailed assessment of the Court’s jurisprudence, this author has argued elsewhere for accepting that the uniform intra-Union effects of mixed agreements should generally enjoy priority over the division of competences between the EU and the Member States.60 The Court repeatedly held that “mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements, as these are provisions coming within the scope of Community competence […].”61 In the Hermès Case, it furthermore stated that where a provision can apply both to situations falling within the scope of national law and to situations falling within the scope of Community law, it is clearly in the Community interest that, in order to forestall future differences of interpretation, that provision should be interpreted uniformly, whatever the circumstances in which it is to apply […].62

59

For a positive answer see Lena Granvik, Incomplete Mixed Environmental Agreements of the Community and the Principle of Bindingness, in: Koskenniemi (note 56), 255, 264 et seq.; Anne Peters, The Position of International Law Within the European Community Legal Order, German Yearbook of International Law 40 (1997), 9, 32, footnote 109; contra Nikolaos Lavranos, Legal Interaction between Decisions of International Organizations and European Law (2004), 33; Antje Wünschmann, Geltung und gerichtliche Geltendmachung völkerrechtlicher Verträge im Europäischen Gemeinschaftsrecht (2003), 76 et seq.; Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001), 61. 60 Alexander Proelss, The Intra-Community Effects of Mixed Agreements: Uniform Status versus Division of Competences, in: Paul J. J. Welfens et al. (eds.), Integration in Asia and Europe (2006), 255, 257 et seq.; see also Rosas (note 56), 140. 61

ECJ, Case C-13/00, Commission v. Ireland, 2002 ECR I-2943, para. 14; id., Case C-459/03 (note 23), para. 84. See also id., Case C-431/05, Merck Genéricos Produtos Farmacêuticos, 2007 ECR I7001, para. 31, where the Court did not differentiate, as far as its jurisdiction to give preliminary rulings is concerned, to what extent the agreement concerned fell into the sphere of competences of the Member States. 62

See id., Case C-53/96, Hermès International v. FHT Marketing Choice BV, 1998 ECR I-3603, para. 32; see also id., Joined Cases C-300/98 and C-392/98, Parfums Christian Dior SA and Others, 2000 ECR I-11307, paras. 37 et seq.

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Admittedly, the judgment in the Etang de Berre Case used a slightly different language and thus seems to indicate that the Court would not consider its jurisdiction to be affected if the relevant provisions of the agreements concerned would be covered by the exclusive competence of the Member States.63 However, in line with the earlier Berne Convention judgment, it then clarified that whenever the provisions of an international treaty would cover a field which falls “in large measure” (but not necessarily in its entirety!) within Union competence, the Member States would be obligated vis-à-vis the Union to ensure respect for commitments arising from an agreement concluded by the EU institutions, as the Union would have assumed responsibility for the due performance of the agreement.64 One source has correctly concluded therefrom that the Court would act on the assumption that a Union interest would exist in “ensuring the implementation of the mixed agreement in its entirety, including provisions falling under shared or Member State competence.”65 With regard to provisions falling under national competence, this interest can only be justified by recourse to the duty of loyalty in terms of Article 4 (3) TEU, under which the Member States are obliged to facilitate the achievements of tasks of the EU.66 In its judgment in the Slovenian Brown Bear Case, the Court referred to the need to interpret the provisions of an international agreement uniformly, even if the provisions concerned “apply both to situations falling within the scope of national law and 63 Id., Case C-239/03, Commission v. France, 2004 ECR I-9325, para. 25: “[M]ixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements in so far as the provisions fall within the scope of Community competence” (emphasis added). 64 Ibid., para. 26. See also id., Case C-13/00 (note 61), para. 15; id., Case C-459/03 (note 23), para. 85. In the Slovenian Brown Bear Case, the Court considered itself competent to interpret the provisions of a mixed agreement when “a specific issue which has not yet been subject to EU legislation may fall within the scope of EU law if it relates to a field covered in large measure by it,” CJEU, Case C240/09, Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky, 2011 ECR I-1255, para. 40. 65 Eleftheria Neframi, The Duty of Loyalty: Rethinking its Scope Through its Application in the Field of EU External Relations, Common Market Law Review 47 (2010), 323, 333. 66

Cf. also Pierre Pescatore, Les Relations Extérieures des Communautés Européennes, Recueil des Cours 103 (1961-II), 9, 133; Neframi (note 65), 334 et seq.; Proelss (note 60), 262 et seq. (referring to the duty of loyalty in order to back his position that Art. 216 (2) TFEU itself covers mixed agreements in their entirety). For an in-depth analysis of the impact of the duty of loyalty on the Union,s external relations see Stefanie Schmahl/Florian Jung, Unionstreue und Loyalitätspflichten im Rahmen der (umweltrechtlichen) Außenbeziehungen der Europäischen Union, Zeitschrift für Europäisches Umwelt- und Planungsrecht 12 (2013), 309, 313–323.

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to situations falling within the scope of EU law.”67 As has been demonstrated above, the principle of uniform interpretation of EU law has been placed by the Court, inter alia, in the duty of loyalty.68 The case-law of the CJEU implicates, therefore, that through the backdoor of the intra-Union obligation of loyal cooperation (which indeed obtains “an autonomous concern in the field of external relations”),69 the whole international agreement becomes an integral part of the European legal system and is subjected to the jurisdiction of the Court. Thus, on closer inspection it seems that the general rule whereby conclusion of a mixed agreement does not affect the distribution of competences between the EU and the Member States (and hence that the principle codified in the second sentence of Article 2 (2) TFEU is not applicable) is, if viewed from the perspective of the jurisprudence of the Court, not completely correct. An alternative, equally indirect line of argument introduced by the Court in its Dior judgment in order to establish its comprehensive jurisdiction over mixed agreements refers to the need to define the obligations which the Union has assumed and those which remain the sole responsibility of the Member States in order to interpret the agreement concerned.70 All that said, it should be noted that the case-law of the Court does not seem to be totally coherent. In this respect, it is not fully clear why the ECJ remarked in its MOX Plant judgment that it would be “necessary to examine whether the provisions of that agreement relied on by Ireland before the Arbitral Tribunal in connection with the dispute concerning the MOX plant come within the scope of Community competence.”71 It is submitted that this statement can only be harmonised with what has been concluded above if understood in terms of the need to generally examine whether the scope of EU law is generally affected, or to preclude a violation of purely exclusive competences of the Member States.

67

CJEU, Case C-240/09 (note 64), para. 42; see also ECJ, Opinion 2/91, Convention No. 170 of the International Labour Organization Concerning Safety in the Use of Chemicals at Work, 1993 ECR I1061, para. 36, where the Court expressly referred to the duty of cooperation. 68

See supra, note 53.

69

Neframi (note 65), 336.

70

ECJ, Joined Cases C-300/98 and C-392/98 (note 62), para. 33; id., Case C-431/05 (note 61), para. 33; id., Case C-459/03 (note 23), para. 135; id., Case C-240/09 (note 64), para. 31. See also Müller (note 1), 168 et seq.; Tobias Lock, The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?, Maastricht Journal of European and Comparative Law 16 (2009), 291, 297. 71

ECJ, Case C-459/03 (note 23), para. 86 (emphasis added).

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b) EU Has Not Acceded to International Agreement If the EU has not or could not become a party to the agreement concerned,72 it seems that the jurisdiction of the Court cannot at all be affected by its conclusion, existence, and implementation. Indeed, the Court has refused to assess the validity of a secondary EU law act in light of such an agreement, unless the EU has, as in the case of the General Agreement on Tariffs and Trade (GATT),73 assumed the powers previously exercised by the Member States in the field to which the agreement applies.74 This author has argued elsewhere that on closer examination, the situation is more complex in case all EU Member States are parties to the pertinent international agreement.75 Where the Member States are bound to maximum standards at the international level, autonomous legislative activities of the Union could bring them into an irreconcilable web of obligations. Against this background, the object and purpose of Article 351 (1) TFEU and the EU’s commitment to the compatibility of its legal system with international law that is implicit in that provision as well as in Article 3 (5) TEU in conjunction with the principle of sincere cooperation and mutual respect (cf. Article 4 (3) TEU), at least support the existence of a rule that EU law must be interpreted in a manner friendly toward the international rights and obligations of the Member States deriving from treaties in terms of Article 351 (1) TFEU.76 72

An example is the International Convention for the Prevention of Pollution from Ships, 2 November 1973, UNTS 1340, 184 (MARPOL) as supplemented by the Protocol of 1978, relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978 (MARPOL 73/78). 73

General Agreement on Tariffs and Trade 1994 (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 190 (GATT). 74 ECJ, Case C-308/06, Intertanko and Others, 2008 ECR I-4057, paras. 47 et seq.; see also id., Case C-379/92, Matteo Peralta, 1994 ECR I-3453, para. 16. The Court correctly noted that the situation ought to be assessed differently if the provisions of the relevant agreement reflect customary international law; cf. only id., Intertanko, para. 51. 75

For details see Alexander Proelss, The ‘Erika III’ Package: Progress or Breach of International Law?, in: Hans-Joachim Koch et al. (eds.), Climate Change and Environmental Hazards Related to Shipping: An International Legal Framework (2013), 129, 141 et seq.; cf. also Allan Rosas, EU Law and International Agreements Concluded by EU Member States, with Particular Emphasis on Maritime Law, in: Henrik Rak/Peter Wetterstein (eds.), Environmental Liabilities in Ports and Coastal Areas: Focus on Public Authorities and Other Actors (2011), 9, 43 et seq. 76 Proelss (note 75), 143 et seq. Note that according to the majority view in legal writings, Art. 351 (1) TFEU can be applied by way of analogy to agreements concluded by all Member States after 1 January 1958; see Paul Craig/Gráinne de Búrca, EU Law (5th ed. 2011), 204; the opposite position is taken by Rosas (note 75), 20 et seq., 27.

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Acceptance of an obligation to interpret EU law in a manner friendly toward the international rights and obligations of the Member States implies that the obligations of the Member States arising out of international treaty law ought to be taken into account when interpreting EU law. It does not exclude the possibility that such an interpretation is neglected by reference either to the conflicting wording of the applicable European law provisions or overwhelming core constitutional principles of EU law.77 It has been submitted that this rule, which has been put up for discussion by this author with the aim to prevent conflicts between the international legal obligations of the EU Member States on the one hand and EU law on the other without establishing the direct applicability of international treaty law within the EU legal order, should at least be applied in situations where the Member States had shared external competence in regard to the subject matter governed by the international agreement at the time that treaty was concluded.78 Article 351 (2) TFEU, according to which the Member States are obliged to utilise all appropriate means to resolve incompatibilities between the international agreements they have adopted and EU law, does not seem to militate against the position taken here, as this provision only applies to the extent that the treaties are incompatible with EU law.79 However, whether or not that is the case can only be determined following (and not prior to) an interpretation of the secondary EU law act concerned in a manner friendly toward the international legal obligations of the Member States. When asked to interpret secondary EU law, the CJEU should thus be considered as being bound to take into account the legal obligations of the Member States arising from international agreements to which all of them have acceded. Pursuant to Article 351 (2) TFEU and the general principle of sincere cooperation, this obligation must not apply only in situations where the Member States have entered into the treaty obligations concerned with the purpose of circumventing EU law.80

77

Cf. also ECJ, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 2008 ECR I-6351, para. 304. 78

Proelss (note 75), 144. See also ECJ, Case C-308/06 (note 74), para. 52: “In view of the customary principle of good faith, which forms part of general international law, and of Article 10 EC, it is incumbent upon the Court to interpret those provisions taking account of Marpol 73/78”. 79

See also Neframi (note 65), 347.

80

See Proelss (note 75), 144.

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3. Exclusivity of CJEU Jurisdiction in Relation to International Courts and Tribunals? Concerning the scope of CJEU jurisdiction in relation to international courts and tribunals, the situation arguably ought to be assessed differently depending on whether or not the EU is a party to the agreement establishing the jurisdiction of the tribunal concerned.

a) EU Has Not Acceded to International Agreement If the Union has not become a party to the agreement, prima facie it is difficult to see how Article 344 TFEU could be violated. This is particularly true in light of the autonomous approach that has been taken by the Court in such situations.81 At the same time, the award in the IJzeren Rijn Arbitration shows that in case two Member States of the EU submit a dispute on, inter alia, the interpretation of EU law to an international tribunal, one cannot deny that such course of action will most likely impact the uniform interpretation of EU law also on the intra-Union level. The Tribunal initially acted on the assumption that its jurisdiction was, as a matter of principle, limited by virtue of the reference made by the parties to the dispute to Article 292 TEC.82 From the perspective of international law (i.e. leaving aside aspects of comity), this line of argument can be justified in light of the fact that the parties to the dispute expressly requested the Tribunal to apply and interpret European law, and to take into account the parties’ obligations under what is today Article 344 TFEU.83 In contrast, had the parties only asked the Tribunal to take into account specific secondary EU law acts in the interpretation of the relevant international legal rules and principles, an award rendered by the Tribunal would, while most likely implying a violation of Article 344 TFEU by the Member States in relation to the Union, not have resulted in an infringement of applicable international law.

81

See supra, II.C.2.b).

82

See supra, note 44.

83

See supra, note 41.

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Article 344 TFEU only concerns the relationship between the Union on the one hand and the Member States on the other.84 Unless the parties to the dispute do not decide to extend the jurisdiction of an international tribunal to the observation of primary EU law (as has happened in the IJzeren Rijn Arbitration), it does not seem to be possible to construct any external effect of the duty contained in Article 344 TFEU. In particular, notwithstanding the generally accepted principle of supremacy of EU law, a subsequent decision of the CJEU holding that the Member State that had invoked the jurisdiction of the international tribunal violated Article 344 TFEU would not completely remove but only supersede the binding force of the decision rendered by the international tribunal.85 The mere fact that the Member State concerned would then be bound under EU law to comply with the judgment of the CJEU and thus to remove all consequences of its unlawful course of action (cf. Article 260 TFEU), does per se not affect the situation under international law.86 The lex specialis principle, even if held to be applicable to jurisdictional conflicts,87 does not seem to lead to a different conclusion, taking into account that it will usually not be easy to identify which of the two treaties – one dealing with, say, the protection of the environment of a particular marine area, the other establishing a supranational organisation that is entitled to exercise sovereign rights on a broad field of areas – is the more specific one.88 As far as the IJzeren Rijn Arbitration is concerned, the Tribunal did ultimately not reject its jurisdiction but rather assessed, based on its perception that it would be in a position analogous to that of a domestic court, whether the requirements for an exception to the obligation to refer the case to the ECJ codified in Article 267 (3) 84

Lock (note 1), 204 et seq. The OSPAR Tribunal was thus correct to hold in the MOX Plant Case that EU law did not limit Ireland’s choice of legal forum on the international plane. See Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (note 33), para. 143. 85

The opposite view is taken by Lavranos, Part II (note 1), 244.

86

Contra Lock (note 1), 212 et seq., who argues that since the international tribunal lacks the power to settle the dispute in a final and binding manner due to the existence of Art. 344 TFEU, no reason would exist why the Tribunal should not be considered as being under a duty to waive its jurisdiction. This line of argument ignores, though, that once a tribunal has been established in accordance with the underlying treaty, it is obliged to examine its jurisdiction on the basis of the pertinent rules and principles. No legal provision has been referred to by the author that would confirm existence of the alleged duty. 87

Lowe (note 1), 195.

88

See also Lock (note 70), 309.

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TFEU would be fulfilled. It has been convincingly demonstrated elsewhere that this course of action ought not be consented to, since an arbitral tribunal cannot at all be considered a court within the meaning of Article 267 TFEU.89 Moreover, even though Article 267 (3) TFEU (similar to Article 344 TFEU) serves to safeguard the uniform interpretation of EU law within the domestic legal systems, it would have deserved detailed reasoning, taking into account that Article 344 TFEU concerns the horizontal relationship between two EU Member States and not the vertical relationship between the CJEU and domestic courts,90 why the exceptions to the obligation to refer to the Court that have been accepted in its jurisprudence should and may be applied to Article 344 TFEU. Even if one agreed with the general approach taken by the Tribunal, the way how it interpreted secondary EU law is misleading, to say the least. In essence, the Tribunal limited itself to repeating the arguments brought forward by the parties to the dispute and then stated, rather than established, that its decision would be the same even if the secondary law acts referred to by the parties did not exist.91 Its conclusion, according to which the questions of EU law debated by the parties were “not determinative, or conclusive,”92 is thus not sufficiently supported by way of detailed legal assessment. Finally, the Tribunal referred to the conditions established by the ECJ in its CILFIT judgment,93 under which a domestic court in terms of Article 267 (3) TFEU may lawfully refrain from referring a question of EU law to the Court, in a far too generous way. Against this background, and given that the parties to the dispute had expressly asked the Tribunal to take into account the rule codified in what is today Article 344 TFEU, the sole appropriate conclusion is that the Tribunal ignored its obligation to decline jurisdiction.94 But what happens if large parts of a dispute between two Member States concern subject areas for which the Union is not competent at all, or with regard to which it 89 Nikolaos Lavranos, The MOX Plant and IJzeren Rijn Disputes: Which Court is the Supreme Arbiter?, Leiden Journal of International Law 19 (2006), 223, 238 et seq.; Lock (note 70), 300 et seq. 90

Lavranos (note 89), 239; see also Lock (note 70), 302, who refers to the fact that international courts and tribunals “stand outside the Community legal system”. 91

Iron Rhine Arbitration (note 41), paras. 120 and 137.

92

Ibid., para. 137.

93

Cf. ECJ, Case 283/81, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, 1982 ECR 3415, paras. 13 et seq. 94

Consenting Lock (note 1), 213; Lavranos (note 89), 241.

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has only been allocated a shared competence? Is it then mandatory to conclude that the Member States, once they submit a dispute concerning the interpretation and/or application of an international treaty to an international court or tribunal, violate the Court’s exclusive jurisdiction as expressed in Article 344 TFEU? It is submitted that the answer to this question should be no. Disputes concerning subject areas for which the Member States hold exclusive powers cannot affect the unity of the EU legal system.95 Where the Union has or could not accede to the relevant agreement, the CJEU is a priori not competent to interpret the provisions of that agreement. Whether or not the rule advocated above, according to which EU law should be interpreted in a manner friendly toward the international rights and obligations of the Member States,96 can also be applied to decisions of international courts and tribunals on the interpretation of treaties in terms of Article 351 (1) TFEU seems to depend on whether the tribunal to whom the dispute has been submitted is asked to interpret treaty provisions regulating issues with regard to which the Union has already made use of its shared competences in relation to its Member States. If this is the case, the Member States are precluded from acting on the international plane, e.g. by initiating arbitral proceedings, if and to the extent to which the pertinent matter has been regulated by the EU.97 The initiation of arbitral proceedings would thus constitute an ultra vires act as well as a violation of the duty of loyalty expressed in Article 4 (3) TEU and Article 351 (2) TFEU.98 Even if one argued that the mere submission of a dispute to an arbitral tribunal would not yet jeopardise the uniform and effective

95 An example is the pending arbitration between Slovenia and Croatia concerning their territorial and maritime dispute. Taking into account that the EU does not exercise any powers with regard to the determination of land and maritime boundaries, and issues of access to the sea, respectively, Art. 344 TFEU is not applicable. Note that the EU even made continuation of the EU accession negotiations with Croatia dependent on that State’s willingness to submit its dispute with Slovenia to an arbitral tribunal. The Arbitration Agreement is available at: http://www.esiweb.org/enlargement/wp-content/uploads/2010/02/arbitration_agreement.pdf (accessed on 17 November 2014). 96

See supra, II.C.2.b).

97

Cf. Art. 2 (2) TFEU, according to which the Member States may only exercise their shared competence “to the extent that the Union has not exercised its competence.” This rule regularly extends to the entitlement of the Member States to act on the external plane. 98

Note that Art. 344 TFEU is not applicable, as the dispute between the Member States does not directly concern the interpretation or application of EU law.

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application of EU law, the Greek IMO Case shows that the Member States are not entitled to invoke Article 351 (1) TFEU in such situations.99 In contrast, in cases where the EU has not yet comprehensively exercised its shared competences on the intra-Union level, one might assume that the Member States are generally free to act on the international plane, including submitting their disputes on the interpretation or application of treaties in terms of Article 351 (1) TFEU to arbitral tribunals. It should be noted, though, that the Court has interpreted the duty stemming from Article 351 (2) TFEU in a much broader sense by indicating that the duty to eliminate incompatibilities codified in that provision not only concerns existing incompatibilities, but also hypothetical ones.100 It is submitted that this line of argument is neither compatible with the fact that the principle of loyal cooperation ought to be observed not only by the Member States but also by the EU, nor does it sufficiently take into account Article 351 (1) TFEU. If the duty contained in Article 351 (2) TFEU would cover also hypothetical incompatibilities, the Member States would in essence be precluded from exercising external powers on fields of shared competences. A stronger argument against the possibility to invoke the duty of the EU institutions to interpret EU law in a manner friendly toward the international legal obligations of the Member States in the context relevant here can be deduced from the fact that that duty would be applied, taking into account the fact that the binding force of an arbitral tribunal’s decision under international law only extends to the parties to the dispute, to a situation where only two Member States would be bound to observe these obligations. Assuming that an award rendered by an arbitral tribunal would have to be considered by the institutions of the Union when interpreting and applying EU law, it would potentially affect the uniform and effective application of EU law. Against this background, the better reasons seem to militate in favour of accepting that it is the Member States that are generally obliged to prevent conflicts of rules 99

The case concerned the submission of a proposal for amending the International Convention for the Safety of Life at Sea, 1 November 1974, UNTS 1184, 2 (SOLAS Convention) by Greece to the Maritime Safety Committee of the International Maritime Organisation (IMO). The Court held that Greece had failed to establish “that it was required to submit the contested proposal to [the IMO Maritime Safety Committee] by virtue of the IMO’s founding documents and/or legal instruments drawn up by that international organisation,” ECJ, Case C-45/07, Commission v. Greece, 2009 ECR I701, para. 37, emphasis added. 100

ECJ, Case C-205/06, Commission v. Austria, 2009 ECR I-1301, paras. 44 et seq.

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in such circumstances. From an intra-Union perspective, submission of a dispute between EU Member States to an international court or tribunal is thus only compatible with the duty of loyalty if (1) the scope of Union law is not at all affected by the dispute settlement, or (2) the dispute only concerns exclusive powers of the Member States.

b) Treaty Has Been Concluded in Terms of Mixed Agreement It is submitted that the situation ought to be assessed differently with regard to mixed agreements, i.e. agreements to which both the Member States and the EU have acceded. It is true that the EU legal system is directly affected by international court decisions aiming at the peaceful settlement of disputes concerning the interpretation and application of agreements that form an integral part of the Union legal system. Prima facie, this fact alone seems to indicate that exceptions to the exclusive competence of the CJEU as established by Article 344 TFEU ought not be accepted. Indeed, the Court held in its judgment in the MOX Plant Case that the provisions of the Convention relied on by Ireland in the dispute relating to the MOX plant and submitted to the Arbitral Tribunal are rules which form part of the Community legal order. The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application of those provisions and to assess a Member State’s compliance with them. […] It is, however, necessary to determine whether this jurisdiction of the Court is exclusive, such as to preclude a dispute like that relating to the MOX plant being brought by a Member State before an arbitral tribunal established pursuant to Annex VII to the Convention. The Court has already pointed out that an international agreement cannot affect the allocation of responsibilities defined in the Treaties and, consequently, the autonomy of the Community legal system, compliance with which the Court ensures under Article 220 EC. That exclusive jurisdiction of the Court is confirmed by Article 292 EC, by which Member States undertake not to submit a dispute concerning the interpretation or application of the EC Treaty to any method of settlement other than those provided for therein.101

The only substantial reason put forward by the Court in order to establish exclusivity of its jurisdiction is thus the alleged need to secure the autonomy of the Union legal system.

101

Id., Case C-459/03 (note 23), paras. 121 et seq.

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If it can be assumed that this line of argument is applicable also to other mixed agreements, the approach taken by the Court is arguably too broad and thus not fully convincing. It should be noted that the wording of Article 344 TFEU, while prescribing exclusive jurisdiction of the CJEU, does not require that its jurisdiction ought to be considered as being exclusive also in respect of disputes arising in the context of a mixed agreement whose predominant part falls outside Union competence.102 The opposite conclusion was drawn by General Advocate Maduro, arguing that there would be no threshold in the rules establishing the Court’s jurisdictional monopoly, and that hence Article 344 TFEU would preclude that a dispute that “falls large and perhaps predominantly outside the jurisdiction of the Court” is submitted to a method of settlement other than those provided for in the TFEU.103 In essence, this view implicates an interpretation of Article 344 TFEU according to which an absolute barrier exists concerning potential impacts of the jurisdiction of international courts and tribunals within the EU legal order. It has been argued by this author that such an interpretation does not sufficiently take into account the affinity of EU law toward international law and, therefore, ought to be regarded as an oversubscription to the autonomy of the Union’s legal order.104 A more balanced and flexible approach to the issue relevant here would, while accepting that the jurisdiction of the Court over mixed agreements is more or less comprehensive, point to the fact that the Member States regularly insist on conclusion of an international treaty in terms of a mixed agreement just in order to provide that this event will not affect the intra-Union allocation of competences.105 As has been demonstrated above, this intention has already been weakened by the Court’s approach to indirectly subject all parts of a mixed agreement to its jurisdiction by referring to the intra-Union obligation of loyal cooperation, so it seems somewhat inappropriate, or, as far as the principle of loyal cooperation is concerned, one-sided 102

See Raphael Oen, Streitschlichtung zwischen EG-Mitgliedstaaten im Rahmen gemischter Verträge, Archiv des Völkerrechts 45 (2007), 136, 145. 103

ECJ, Case C-459/03 (note 23), para. 14 (Opinion of AG Maduro).

104

Proelss (note 75), 146 et seq.; contra Lock (note 1), 193 et seq.; Sonja Boelaert-Suominen, The European Community, the European Court of Justice and the Law of the Sea, International Journal of Marine and Coastal Law 23 (2008), 643, 678 et seq. 105 The fact that the rule contained in Art. 2 (2) TFEU is not applicable to mixed agreements constitutes a central difference to the legal assessment submitted above (see supra, II.C.3.a)) of situations where the EU has not acceded or could not accede to a treaty.

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respectively, to further challenge the interests of the Member States by interpreting the scope of Article 344 TFEU in the broadest possible sense. Therefore, if the interpretation of the provisions of a mixed agreement is at issue which belong to an area that does not fall under the exclusive competence of the EU, it is not comprehensible in general why Article 344 TFEU should automatically lead to the exclusive jurisdiction of the CJEU. The mere acceptance of the jurisdiction of an international court or tribunal in regard to a mixed agreement does not, in itself, immediately endanger the division and exercise of the competences as laid out in the European treaties.106 The exclusive jurisdiction of the CJEU can only be triggered if it is foreseeable for the parties to the dispute that the initiation of arbitral proceedings is most likely going to challenge the uniform application and interpretation of existing EU law, or if parts of a mixed agreement will be affected with regard to which the Union is exclusively competent. Only in such situations can there be an interference with the duty of loyalty which would then justify the initiation of a treaty infringement procedure against the Member States concerned. In cases where the jurisdiction of the CJEU cannot, in accordance with the aforementioned, be held to be exclusive, the duty to interpret EU law with affinity toward international law thus also applies to decisions rendered by external dispute settlement institutions.107 Taking into account that a decision rendered by an international court or tribunal on the interpretation or application of a mixed agreement will de facto influence the behaviour also of those contracting parties that are not parties to the dispute (including the EU),108 it is submitted that the limited binding force of the decision on only two Member States does not per se justify the conclusion that the unity of the Union legal system is challenged by that decision. In this regard it is arguably not without relevance that the Court itself accepted that, as shown above, an 106

Proelss (note 75), 147.

107

This would arguably include non-binding reports of compliance committees and the like. Lavranos (note 89), 237 argues that it is not the ECJ but the international court or tribunal which should, depending on the circumstances, decide “the case in line with Community law and the relevant ECJ jurisprudence.” Interestingly, the provision from the OSPAR Convention referred to by the author (Art. 32 (6)(a)) requires the arbitral tribunal to decide “according to the rules of international law and, in particular, those of the Convention.” Thus, the broad interpretation of that provision suggested by Lavranos seems to ignore the autonomy of the European legal system. 108

The other parties to the agreement will usually comply with the decision just in order to avoid being made responsible for breaches of the agreement concerned.

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international agreement providing for a system of courts, including a court with jurisdiction to settle disputes between the States parties to the agreement, would in principle be compatible with Union law even if the decisions of that Court would (also) be binding on the Union institutions and as such affect the autonomy of the Union legal system.109 It should clearly be noted that applying the duty to interpret EU law with affinity toward international law also in the context of external dispute settlement does not oblige the Member States to refer to the relevant international court or tribunal should disputes between them arise. Rather, since the principle of interpretation whose existence is advocated here cannot alter the comprehensive jurisdiction of the CJEU over EU law (including mixed agreements representing integral parts of the European legal system in terms of Article 216 (2) TFEU), the Member States are free to call on the CJEU as an alternative.110 Therefore, while the comprehensive jurisdiction of the Court remains untouched, its exclusive nature ought to be regarded as limited to situations where either the dispute concerns shared powers of the Union and it is foreseeable that the initiation of arbitral proceedings is most likely going to challenge the uniform application and interpretation of existing EU law, or parts of a mixed agreement under exclusive competence of the Union will be affected. In case it is disputed whether the aforementioned criteria have been respected, the CJEU may, following the final award rendered by the international court or tribunal, be called upon by the Commission on the basis of Article 258 TFEU to assess whether the Member States have acted in conformity with the principle of loyalty. Should it come to the conclusion that the uniform application and interpretation of EU law is affected, the Member State concerned would be bound to adhere to the Court’s conclusions – conclusions that would supersede, in line with the principle of supremacy of EU law, the binding force of the decision which has been taken by the international court or tribunal. In all that, this author has argued elsewhere that the ECJ’s approach to the autonomy of the Union legal order ultimately fosters disregard for the expertise of an international court or tribunal in regard to the treaty on which its jurisdiction is

109

See supra, II.A.

110

Proelss (note 75), 148.

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based.111 Arguably, the court specifically created for the settlement of disputes under an international treaty is generally the best able to appropriately unfold the significance of the rights and obligations contained in that treaty in regard to its objectives and in consideration of its genesis.112 Why should the CJEU be generally regarded as being better equipped or more competent, respectively, to interpret the provisions of, say, the UNCLOS than a tribunal established on the basis of Annex VII of that agreement? As long as the foundations of European law are not directly affected, it should be left to the choice of the Member States concerned to decide which forum is the most suitable one for settling their dispute. In terms of EU law, accepting the existence of a duty of the Union institutions to take into account the interpretation of a mixed agreement offered by a specialised international body effectively contributes to the implementation of the objectives contained in Article 3 (5) TEU. This is even more true in respect of treaty mechanisms such as compliance and implementation committees that were established just in order to guarantee the proper performance of the treaty concerned, and thereby contribute to the prevention of emerging legal disputes.113

III. Conclusion Numerous cases exist where the CJEU has chosen to interpret secondary Union law measures in an autonomous manner, notwithstanding the fact that the measures 111

Ibid.

112

Cf. Simon Marsden, MOX Plant and the Espoo Convention: Can Member State Disputes Concerning Mixed Environmental Agreements be Resolved Outside EC Law?, Review of European Community and International Environmental Law 18 (2009), 312, 326; Nikolaos Lavranos, Protecting its Exclusive Jurisdiction: The MOX Plant-Judgment of the ICJ, The Law and Practice of International Courts and Tribunals 5 (2006), 479, 491 et seq., who argues that the ECJ, e.g. by applying the ‘Solangeformula’ developed by the German Federal Constitutional Court, “should show some more respect and comity towards the jurisdiction of the other international courts and tribunals.” It should be noted, though, that the ECJ is not free to waive its jurisdiction by virtue of comity or respect. Only if and to the extent to which European law requires the Court to take into account the decisions of other international courts or tribunals (a duty whose existence has been advocated in this paper) can its jurisdiction be regarded as being non-exclusive. 113 See Art. 15 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, UNTS 2161, 447 (Aarhus Convention); Decision III/2 (available at: http://www.unece.org/?id=2805, accessed on 23 November 2014) of the Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, UNTS 1989, 309 (Espoo Convention).

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concerned where closely related to international treaties.114 As far as international dispute settlement mechanisms are concerned, the Court has, probably unsurprisingly, extended its approach to claim comprehensive jurisdiction over mixed agreements through the backdoor of the principle of loyal cooperation by relying on a broad understanding of Article 344 TFEU. In contrast, this article has argued that the Union’s institutions, including the Court, are under an obligation by virtue of primary Union law to interpret and apply this legal system in a manner friendly toward the international legal obligations of the Member States. Therefore, whether or not the Court’s jurisdiction in relation to other international courts and tribunals ought to be regarded as exclusive should be assessed on a case-by-case basis, depending on whether the initiation of arbitral proceedings or the decision rendered by the court or tribunal concerned, respectively, constitutes a challenge to the uniform interpretation and application of the Union legal system. Only in such cases can the Member States be held liable for having violated the duty of loyal cooperation (which, it should be noted, equally addresses the EU institutions). While it can be assumed that the line of argument presented here will most likely not be approved by the CJEU (taking into account that it implicates limitations on the scope of the Court’s exclusive jurisdiction as well as a changed approach concerning its functions with regard to dispute settlement in multi-layered constellations), the far-reaching effects of this jurisprudence on the scope of manoeuvre of the Member States on the international plane in general and in respect of marine affairs in particular, which is continuously further developed, indeed deserve careful attention in the future.

114

The reasons for this approach differ. For example, in CJEU, Case C-285/12, Aboubacar Diakité v. Commissaire général aux réfugiés et aux apatrides (not yet published in the ECR), para. 26, available at: http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d5e8150429212b4941 8721b706e49697d2.e34KaxiLc3qMb40Rch0SaxuOc310?text=&docid=147061&pageIndex=0&do clang=EN&mode=lst&dir=&occ=first&part=1&cid=153249 (accessed on 23 November 2014), the CJEU decided that the notion of “internal armed conflict” as used in Directive 2004/83/EC (EC Directive 2004/83 of 29 April 2004, OJ 2004 L 304, 12) would not be identical to the concept of “armed conflict not of an international character” in terms of international humanitarian law in order to provide a higher degree of protection of persons in a refuge-like situation. In CJEU, Case C-121/11, Pro-Braine ASBL and Others v. Commune de Braine le Château (not yet published in the ECR), para. 37, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=121742&pageIndex=0&doclan g=EN&mode=lst&dir=&occ=first&part=1&cid=153796 (accessed on 23 November 2014) and CJEU, Case C-275/09, Brussels Hoofdstedelijk Gewest and Others v. Vlaamse Gewest, 2011 ECR I-1753, paras. 27 et seq., it seems to have refused to take into account the ‘case-law’ of the Implementation Committee of the Espoo Convention.

Power and Purpose of Ecolabelling: An Examination Based on the WTO Disputes Tuna II and COOL ISABEL FEICHTNER(

ABSTRACT: Ecolabels are frequently presented as consumer information tools that efficiently promote environmental aims such as the sustainability of fisheries. Two recent WTO dispute settlement cases – Tuna II and COOL – have called into question the characterisation of labels as ‘consumer information tools’ by illuminating the regulatory power and purposes of labelling. Tuna II moreover clarifies that WTO law does not necessarily privilege ecolabelling over more openly interventionist government measures aimed at environmental protection. In this contribution I first sketch two views of ecolabelling – one that depicts ecolabelling as primarily aiming at consumer information and another that stresses the regulatory function of labelling. I then turn to the dispute settlement reports in Tuna II and COOL in order to specify the government authority involved in many labelling schemes. I conclude this contribution with the call for a critical assessment of ecolabelling. The power of ecolabelling may be employed to reshape markets and promote green growth. At the same time, however, it may consolidate a trend that places the consumer at the centre of initiatives for societal change and loses sight of potentially more radical transformations through the engagement of human beings as citizens. KEYWORDS: Ecolabelling, Sustainable Fisheries, ‘Dolphin-Safe’ Labels, WTO, Technical Barriers to Trade, Governance through Information

I. Ecolabelling and the WTO Ecolabels as instruments to promote sustainable consumption and production patterns are high on the agenda of national, regional, and international bureaucracies.1 Already in 1992, Agenda 21 in its chapter ‘Changing Consumption Patterns’ ( 1

Professor of Law at Goethe University Frankfurt.

See only European Commission, Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan, COM(2008) 397 final; the Food and Agricultural Organization (FAO) activities on ecolabelling in fisheries management, overview available at: www.fao.org/fishery/topic/ 12283/en (accessed on 28 November 2014); United Nations Environment Programme (UNEP) Project “Enabling developing countries to seize ecolabelling opportunities,” project website available at:

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called on “[g]overnments, in cooperation with industry and other relevant groups, [to] encourage expansion of environmental labelling […] designed to assist consumers to make informed choices.”2 As concerns the marine environment, a number of labelling schemes aim at promoting the sustainability of fisheries. Single issue schemes, such as the US ‘dolphin-safe’ labelling scheme that will be discussed in detail in this contribution, aim at the protection of particular species, other labelling schemes, such as those of the Marine Stewardship Council (MSC) and Friend of the Sea (FOS), take a more comprehensive approach aiming at marine biodiversity protection. With respect to transboundary challenges, such as marine biodiversity loss, ecolabelling promises to address some of the deficits of environmental protection through international law. Ecolabels that certify compliance with (binding or nonbinding) standards provide means to enhance the effectiveness of such standards by allowing consumers to act as ‘enforcers’ of sustainability norms through their consumption decisions. In this contribution I wish to take a step back from the particulars of individual labelling schemes as well as the specificities of the protection of marine fisheries and instead inquire into the characteristics of ecolabels that make them potentially powerful governance instruments – governance instruments that due to their authority require justification.3 The power of ecolabelling remains concealed when proponents of ecolabelling schemes describe them as market-based “communication/ information provision tools”4 which bear the potential to create ‘win-win’ or even ‘win-win-win’ situations allowing consumers to maximise benefits from consumption, producers to turn into profit consumer preferences for sustainable products, and the environment to gain breathing space from the resulting changes in production

http://www.unep.org/resourceefficiency/Consumption/StandardsandLabels/InitiativesandProjects/ CapacityBuilding/Eco-labellingProject/tabid/101355/Default.aspx (accessed on 16 March 2015). 2 United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3–14 June 1992, Agenda 21, para. 4.21, available at: https://sustainabledevelopment.un.org/content/documents/ Agenda21.pdf (accessed on 16 March 2015). 3

The authority of ecolabelling schemes and their need for justification is recognised by the FAO Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (Rev. 1 2009), available at: http://www.fao.org/docrep/012/i1119t/i1119t.pdf (accessed on 27 January 2015). 4 PSee, for example, BIO Intelligence Service, Policies to encourage sustainable consumption, Final report prepared for European Commission (DG ENV) (2012), 13 (listing environmental product labels as “communication/information provision tool” towards sustainable consumption).

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and consumption patterns.5 Such a depiction no longer presents ecolabels as born out of necessity given the weaknesses of government in transboundary constellations,6 but promote them as efficient instruments in the endeavour to transform the global economy into one that generates ‘Green Growth.’7 It is the benefit of two recent World Trade Organization (WTO) dispute settlement cases, United States – COOL, concerning US legislation and implementing regulations on country of origin labelling,8 and United States – Tuna II, concerning the US ‘dolphin-safe’ labelling scheme,9 to have called into question the characterisation of labels as ‘consumer information tools.’10 The WTO as an international organisation to which observers frequently attribute a free trade bias11 would – one might assume – welcome potentially growth-generating ecolabels as an alternative to stricter environmental regulation, such as outright government bans of unsustainable products or production methods. Yet, the dispute settlement reports resulting from COOL and Tuna II not only illuminate the power and purposes of labelling; they also clarify that WTO law does not necessarily privilege ecolabelling over more clearly 5

Cf. FAO, Fisheries and Aquaculture Department, Labeling and Certification, available at: http:// www.fao.org/fishery/topic/13293/en (accessed on 28 November 2014). 6

For such an approach see Jürgen Friedrich, Environment, Private Standard-Setting, MPEPIL, available via: http://www.mpepil.com (accessed on 28 November 2014). 7 World Bank, Inclusive Green Growth: The Pathway to Sustainable Development (2012), available at: http://siteresources.worldbank.org/EXTSDNET/Resources/Inclusive_Green_Growth_May_2012. pdf (accessed on 25 February 2015); for a situation of ecolabelling within approaches of ecological modernisation see Anna Couturier/Kannika Thaimai, Eating the Fruit of the Poisonous Tree? Ecological Modernisation and Sustainable Consumption in the EU, Working Paper, Institute for International Political Economy Berlin, No. 20/2013. 8

World Trade Organization (WTO), United States – Certain Country of Origin Labelling (COOL) Requirements, Report of the Panel of 18 November 2011, WT/DS384/R, WT/DS386/R (COOL, Panel); id., United States – Certain Country of Origin Labelling (COOL) Requirements, Report of the Appellate Body of 29 June 2012, WT/DS384/AB/R, WT/DS386/AB/R (COOL, Appellate Body). 9

Id., United States – Measures Concerning the Importation Marketing and Sale of Tuna and Tuna Products, Report of the Panel of 15 September 2011, WT/DS381/R (Tuna II, Panel); id., United States – Measures Concerning the Importation Marketing and Sale of Tuna and Tuna Products, Report of the Appellate Body of 16 May 2012, WT/DS381/AB/R (Tuna II, Appellate Body). 10 While in Tuna II the government measure at issue was an ecolabelling scheme, COOL did not concern ecolabelling, but country of origin labelling. Nonetheless, also COOL provides important insights especially as concerns the power of labels that on their face are aimed primarily at consumer information. 11

See only Lori Wallach/Michelle Sforza, Whose Trade Organization? Corporate Globalization and the Erosion of Democracy: An Assessment of the World Trade Organization (1999).

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interventionist government measures aimed at environmental protection. They may serve as a starting point for a more far-reaching critique of labelling from an ecology and democracy perspective. In the following I first broadly sketch two views of ecolabelling. One depicts ecolabelling as primarily aiming at consumer information in order to place the consumer in a position to make informed consumption decisions and freely choose between sustainable and unsustainable products. By contrast, the other view stresses the regulatory and steering function of labelling. It focuses on labels as instruments that shape consumer preferences and are used to achieve regulatory aims (II.). The contribution then turns to the two recent WTO cases involving labelling – COOL and Tuna II – in order to specify the regulatory power implied in many labelling schemes. In Tuna II the Appellate Body held the US ‘dolphin-safe’ labelling scheme to constitute a technical regulation and not, as argued by the US and one dissenting panellist, a voluntary standard within the meaning of the WTO Agreement on Technical Barriers to Trade (TBT Agreement)12 and thus – correctly in my view – heightened the burden on the United States government to justify its labelling regime under WTO law (III.). Both in Tuna II and in COOL the dispute settlement organs had to determine whether changes in conditions of competition to the detriment of the claimants’ products were attributable to the US labelling schemes or rather to the choices of private actors. Here, too, the dispute settlement reports underline the governmental power involved in labelling by finding causal relationships to exist between changes in competitive conditions and the governmental labelling requirements (IV.). Finally, the discussion of the objectives of the US ‘dolphin-safe’ labelling scheme in Tuna II sheds light on the regulatory function of ecolabels. The assessment in COOL of the US country of origin labelling measure in light of its objectives clarifies that also labels that primarily aim at consumer information (and not at the steering of consumer behaviour) can only be fully understood and justified through an inquiry into the reasons why consumers demand and why governments require the provision of certain types of information (V.). In the concluding part of this contribution I call for a critical assessment of ecolabelling. If it is acknowledged that ecolabelling involves significant regulatory power, careful scrutiny of the arguments in favour of ecolabelling as a pathway towards green growth is all the more necessary. The power of ecolabelling may be employed and 12

Agreement on Technical Barriers to Trade (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1868, 120 (TBT Agreement).

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ultimately serve to reshape markets and promote growth. At the same time it may consolidate a trend that places the consumer at the centre of initiatives for societal change and loses sight of potentially more radical transformations through the engagement of human beings as citizens (VI.).

II. Two Views of Ecolabelling: Information or Regulation Product labels, whether they set out the sugar content of food stuff, the energy use of appliances, the dangers of tobacco consumption, or the origin of fish from sustainable fisheries, provide information to consumers. They usually provide this information for a reason – because consumers request it, because governments want to induce people to save energy and smoke less, because civil society organisations have made it their task to contribute to the protection of fishstock by certifying the sustainability of fisheries. With respect to some types of labels, including ecolabels, the regulatory purpose is more evident than it is with respect to others. Yet, even ecolabels that clearly pursue a regulatory purpose are frequently depicted as ‘information tools.’13 In what follows I first elaborate on the view of ecolabels as conveyors of information to consumers to then lay out the various regulatory aspects of labels, and ecolabels in particular.

A. Ecolabelling as Information

Ecolabelling can be associated with a particular form of governance, namely one that attributes a political role to consumers who through their consumption decisions exercise a vote – not only about the utility of a product but potentially also about aspects of the life-cycle of a product which are not reflected in product characteristics. Through their consumption choices consumers, as market participants, can induce transformations within the economy that reduce its harmful effects on the environment.14 From a systems-theoretical perspective ‘consumer-voting’ appears as a more 13 14

See supra, note 4.

Cf. Couturier/Thaimai (note 7); Alexandre Maybeck/Vincent Gitz, Signs to Choose: Voluntary Standards and Ecolabels as Information Tools for Consumers, in: Alexandre Maybeck/Suzanne Redfern (eds.), Voluntary Standards for Sustainable Food Systems: Challenges and Opportunities. A Workshop of the FAO/UNEP Programme on Sustainable Food Systems (2013), 171.

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effective way to limit the destructive tendencies of the economic system than ‘citizenvoting’ in political elections given the incapacity of the political system to directly intervene in the economic system.15 From a business perspective ecolabelling promises not only environmental, but also economic gains as the differentiation between more and less sustainable products which ecolabels make possible, potentially opens new markets, for example if consumers of tuna products labelled ‘dolphin-safe’ buy these products not only because they care for tuna, but because they derive some extra utility from the fact that these products carry an ecolabel.16 Sufficient information is a prerequisite for consumers to exercise voting power on questions of sustainability through consumption. And choice between labelled and unlabelled products is a prerequisite for business to capitalise on preferences for ecolabels while still being able to cater to the demand for unlabelled (and therefore possibly cheaper) products. Against this background the view of ecolabels as information tools appears as one that emphasises the power of consumers to influence the economy through their informed choices. At the same time the conception of ecolabels as creating choice through differentiation stresses the potential of ecolabels to benefit the economy by inducing growth. Ecolabels viewed this way can be understood to partake in a turn from government to governance through market-based instruments.17

B. Ecolabelling as Regulation

From a different viewpoint one may call into question the depiction of ecolabels as mere information tools and stress the power involved in labelling as well as the need for government involvement to make labelling effective. Three aspects are presented in the following which complexify the qualification of labels as information tools: first the intricate connection between the provision of information and the reasons/purposes for which information is provided, second the significance of the way

15 Cf. Gunther Teubner, Verfassungsfragmente: Gesellschaftlicher Konstitutionalismus in der Globalisierung (2012), 143. 16 Charles F. Mason, The Economics of Eco-Labeling: Theory and Empirical Implications, International Review of Environmental and Resource Economics 6 (1) (2013), 1, 2–3. 17

Cf. Jaye Ellis, Constitutionalization of Non-Governmental Certification Programmes, Indiana Journal of Global Legal Studies 20 (2013), 1035.

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in which information is presented, and third the need for reliability of and consumer trust in the information provided.

1. Selection of Information Labels cannot exhaustively inform about the characteristics of a product, the process of its production or its life-cycle. Neither would the information fit on a label, nor are consumers able or willing to process vast amounts of information prior to making their consumption decisions. Thus, labels only provide selected information. The selection is motivated by the reasons for labelling. For some ecolabels it is directly linked to a regulatory purpose. Ecolabels are frequently based on certain standards concerning product characteristics, production methods, or environmental impact over the lifecycle of a product. These standards may have been elaborated by governments, business, non governmental organisations (NGOs), or so-called multistakeholder initiatives. Labels are used to certify and signal to the consumer that the labelled product complies with these standards.18 Examples are the US ‘dolphin-safe’ label (discussed below), the Marine Stewardship Council’s,19 or the Friend of the Sea’s20 ecolabels. These ecolabels are instruments to promote the regulatory purposes of the standards on which they are based. Other labels are not based on regulatory standards, but nonetheless aim at steering consumer behaviour towards certain objectives. Thus tobacco labels pointing out to consumers the dangers of smoking aim to promote healthier life-styles and energy labels aim at reducing energy-consumption.21 There exist, however, also labels (usually not ecolabels) that do indeed appear to aim primarily at consumer information without being linked to a regulatory purpose. Examples are the government mandated ‘country of origin’ labels for meat products in the United States (discussed below). The United States government points to 18

Friedrich (note 6).

19

The Marine Stewardship Council’s fisheries standard is available via: http://www.msc.org (accessed on 28 November 2014). 20

The Friend of the Sea certification criteria are mainly based on the FAO guidelines for the ecolabelling of fish and fishery products from marine capture fisheries and are available via: http://www.friendofthesea.org/about-us.asp?ID=2 (accessed on 28 November 2014). 21 For the argument that the selective presentation of information may affect consumer aims, see Cass R. Sunstein, Why Nudge? The Politics of Libertarian Paternalism (2014), 66–68.

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consumer demand for country of origin information as the reason for the labelling scheme.22 If the provision of such information is costly and if consumers despite their valuing this information are not willing to pay for it, legislation that mandates labelling is one way to ensure that the information is being provided. Moreover, legislation provides for a collective process to determine which information consumers desire to obtain in the first place. From the foregoing two conclusions may be drawn that cast doubt on the depiction of labels as information tools facilitating informed consumer choice. First, many ecolabels aim at steering consumer behaviour towards a regulatory objective – often on the basis of standards created by governments, NGOs, or joint initiatives of business and civil society. Second, those labels which may correctly be depicted as mere information-tools frequently will require some collective and governmental intervention to come into existence. This will especially be the case if the information is not such that consumers are willing to pay for its provision.

2. Presentation of Information Labels not only transmit selected information to consumers, they also present this information in a particular way. Behavioural economics, but also our own experiences as consumers, tell us that presentation or framing is key for the effects the respective information will have. Presentation influences whether consumers notice information, whether and how they process it.23 If as consumers we are given too much information, we may not be able to process it correctly within the short time we usually allocate to our daily consumption decisions.24 We may also react irrationally to certain signals; thus health-conscious consumers have been found to choose candy bars with green labels over candy bars with red labels.25 22

WTO, COOL, Panel (note 8), para. 7.627.

23

On the effects of framing see Sunstein (note 21), 29–30; specifically with respect to ecolabel design see Folke Ölander/John Thøgersen, Informing versus Nudging in Environmental Policy, Journal of Consumer Policy 37 (2014), 341, 345 et seq. 24 See for example Brian Wansink/Steven T. Sonka/Clare M. Hasler, Front Label Health Claims: When Less is More, Food Policy 29 (2004), 659. 25

Study cited in Cass R. Sunstein/Lucia A. Reisch, Automatically Green: Behavioural Economics and Environmental Protection, Harvard Environmental Law Review 38 (2014), 127, 130–131.

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A recent study for the European Commission recommends that regulators should learn from marketing experts “how to effectively communicate information aimed at influencing consumers’ decisions.”26 This statement stands in stark contrast to the image of the consumer maximising their given preferences through an informed choice and rather evokes the image of a consumer steered or nudged by a label to make consumption decisions they did not previously know they wanted to make.27 On the middle ground between the fully informed consumer freely acting on the basis of given preferences and the consumer steered and nudged by marketing techniques and ‘choice architecture’28 we may locate those consumers who have a preference, say for sustainable products without having a clear idea what it means for a product to be sustainable and who are happy to rely on others to make that judgment for them. Such consumers may look less for information but rather for a reliable evaluation that a certain product is ‘good’ or ‘sustainable.’ This intuition is supported by studies that find that labels with simple messages, such as ‘dolphin-safe,’ have indeed proven more effective in the sense of inducing changes in consumption than complex informationdisclosure labels.29

3. Reliability of Information Given the multiplicity of labels (often based on private standards), there is the danger, not only of information overload, but also of consumer confusion and lack of consumer trust in labelling. As a consequence, government involvement in labelling may be required in order to ensure that information provided by labels is correct and reliable, but also that labelled products indeed promote desirable goals. Governments may become active with respect to labelling by establishing guiding principles for labelling schemes, by prioritising or harmonising standards, or by establishing their 26

BIO Intelligence Service (note 4), 13.

27

For a justification of such nudging as ‘libertarian paternalism,’ see Sunstein (note 21).

28

The term ‘choice architecture’ denotes the features of the environment that influence people’s choices and which may be changed in order to steer behaviour into different directions, Cass Sunstein/Richard Thaler, Nudge: Improving Decisions about Health, Wealth, and Happiness (2008). 29 Abhijit Banerjee/Barry D. Solomon, Eco-labeling for Energy Efficiency and Sustainability: A MetaEvaluation of US Programs, Energy Policy 31 (2003), 109; Mario F. Teisl/Brian Roe/Robert L. Hicks, Can Eco-Labels Tune a Market? Evidence from Dolphin-Safe Labeling, Journal of Environmental Economics and Management 43 (2002), 339.

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own labelling schemes and certification mechanisms.30 Moreover, to avoid consumer confusion and to enhance the effectiveness of labelling governments may prohibit the use of labels competing with labels backed by government authority which is what the US did in its ‘dolphin-safe’ labelling scheme discussed below.

III. Qualification of Labelling Schemes under the TBT Agreement of the WTO: Voluntary Standards or Mandatory Regulation In Tuna II and COOL the dispute settlement Panels and the Appellate Body clarified a number of questions concerning the treatment of labelling schemes under the TBT Agreement that WTO members have been discussing since the 1990s, predominately in the Committee on Trade and Environment. The main contentious issues debated by WTO members included whether labelling schemes (and which) were to be qualified as mandatory regulation or voluntary standards under the TBT Agreement, whether so-called non-product-related process and production methods were covered by the TBT Agreement, the effects of ecolabels on exports from developing countries, and the transparency of labelling regimes.31 A particularly significant clarification is the Appellate Body’s qualification of the US ‘dolphin-safe’ labelling scheme as mandatory regulation within the meaning of the TBT Agreement even though the labelling scheme concerns non-product-related process and production methods and does not require all tuna products marketed in the US to carry a ‘dolphin-safe’ label.32 The qualification as mandatory regulation stresses the governmental power involved in labelling. As a consequence, the labelling scheme must meet stricter requirements for justification than voluntary standards which are also covered by the TBT Agreement.

30

Banerjee/Solomon (note 29); Maybeck/Gitz (note 14), 181, 182; FAO Food Control and Consumer Protection Group, Roles of Public Actors in the Voluntary Standards, in: Maybeck/Redfern (eds.) (note 14), 215; BIO Intelligence Service (note 4), 13. 31 For accounts of these discussions, see Manisha Sinha, An Evaluation of the WTO Committee on Trade and Environment, Journal of World Trade (JWT) 47 (2013), 1285, 1298–1301; Reinhard Quick, Do We Need Trade and Environment Negotiations or Has the Appellate Body Done the Job?, JWT 47 (2013), 957. 32

See infra, III.A.

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A. The US ‘Dolphin-Safe’ Labelling Scheme at Issue in Tuna II

The Tuna II dispute between Mexico and the United States concerns the US ‘dolphin-safe’ labelling scheme. Mexico had brought the dispute before the WTO with a request for consultation in 2008 claiming that the US labelling scheme discriminated against Mexican tuna (and thus violated Article III General Agreement on Tariffs and Trade (GATT)33 and Article 2.1 TBT Agreement), that it constituted an unjustified barrier to trade (in violation of Article 2.2 TBT Agreement), and that (according to Article 2.4 TBT Agreement) it should have been based on the ‘dolphinsafe’ certification standards of the Agreement on the International Dolphin Conservation Program (AIDCP)34 to which both the US and Mexico are a party.35 The US labelling scheme is established by the US Dolphin Protection Consumer Information Act and implementing regulations.36 It introduces a number of distinctions relevant for the case:37 First, it distinguishes between fishing techniques, in particular between driftnet fishing, purse seine fishing which uses the technique of encircling and setting on dolphins, and purse seine fishing which does not set on and encircle dolphins. According to the US legislation tuna caught with driftnets may never be labelled ‘dolphin-safe.’ Tuna caught with purse seine nets may also not be labelled ‘dolphin-safe’ if purse seine nets are used to encircle and set on dolphins. The technique of purse seine fishing in combination with the setting on and encircling of dolphins is used in areas where there is a natural association of dolphins and tuna such as the Eastern Tropical Pacific Ocean (ETP). The dolphins are encircled, thus tuna is attracted and then caught. Due to the fact that in the ETP tuna associate with dolphins, but no such natural association between dolphins and tuna occurs in other waters, the legislation intro33 General Agreement on Tariffs and Trade 1994 (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 190 (GATT). 34 Agreement on the International Dolphin Conservation Program, 21 May 1998, ILM 37 (1998), 1246, available via: https://www.iattc.org/IDCPDocumentsENG.htm (accessed on 16 March 2015). 35

WTO, United States – Measures Concerning the Importation Marketing and Sale of Tuna and Tuna Products, Request for the Establishment of a Panel by Mexico, 10 March 2009, WT/DS381/4. 36 Dolphin Protection Consumer Information Act, United States Code, Title 16, Section 1385 and United States Code of Federal Regulations, Title 50, Section 216.91 and Section 216.92. 37

The requirements of the labelling scheme are set out in detail in WTO, Tuna II, Panel (note 9), paras. 2.3–2.33.

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duces a second, regional distinction. If purse seine vessels fish tuna in the ETP, the resulting tuna products may be labelled ‘dolphin-safe’ if the vessel’s captain and an independent observer certify that the technique of setting on dolphins and encircling them was not used and no dolphin was killed or injured. For purse seine vessels that fish outside the ETP only a certification that they do not encircle dolphins is required. If the labelling requirements are met the official US ‘dolphin-safe’ label may be placed on tuna products. The labelling legislation also states that no alternative label expressing that a tuna product is ‘dolphin-safe’ may be used unless specific additional conditions are met. As a consequence tuna that is caught in compliance with the certification standards developed under the Agreement on the International Dolphin Conservation Program38 may not be labelled ‘dolphin-safe’ as long as it does not also meet the stricter requirements of the US labelling scheme. The parties to this Agreement, including Mexico and the United States, had – as a reaction to public pressure – developed standards for the protection of dolphins in the ETP. Mexico, in compliance with these standards, has taken measures to protect dolphins. Yet it continues to use purse seine nets in the ETP to encircle and set on dolphins in order to catch the tuna which is swimming with these dolphins.39 The US explains its stricter standards, according to which tuna caught by encircling and setting on dolphins is never eligible for a ‘dolphin-safe’ label, with a concern for unobserved dolphin mortality. Mortality not immediately observable during the respective fishing operation may result from encircling, for example if infants are being separated from their mothers or dolphins experience stress that in turn may lead to infertility. As the US ‘dolphin-safe’ tuna label takes into account these dangers to dolphins it does not consider any tuna caught by setting on and encircling of dolphins as ‘dolphin-safe.’40

B. Qualification of the US ‘Dolphin-Safe’ Labelling Scheme as Mandatory Regulation

Mexico argued that the US ‘dolphin-safe’ labelling scheme inter alia violated nondiscrimination obligations of the GATT as well as the TBT Agreement. As the TBT 38

On the history and content of these standards, see ibid., paras. 2.34–2.41.

39

See arguments by Mexico, ibid., paras. 4.1 et seq.

40

See arguments by the United States, ibid., paras. 4.355 et seq.

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Agreement includes more specific provisions with respect to certain technical barriers to trade than the GATT, the dispute settlement Panel in this case first determined whether the labelling scheme fell within the scope of the TBT Agreement, i.e. whether it constituted a technical regulation, a standard, or a conformity assessment procedure within the meaning of Annex 1 to the TBT Agreement.41 The Panel, without much discussion and in accordance with a test established by the Appellate Body in earlier case law to determine whether a measure constitutes a technical regulation within the meaning of Article 1.1 Annex 1 TBT Agreement,42 found that the labelling scheme applied to identifiable products (tuna products)43 and that it laid down labelling requirements with respect to product, process, or production method (Article 1.1 cl. 2 Annex 1 TBT Agreement).44 The Panel thus took the view that labels concerning production methods that do not affect the physical characteristics of a product can fall within the scope of the TBT Agreement. As a result, even though tuna has the same product qualities whether dolphins were affected by its catch or not, labelling which addresses the fishing technique used can constitute a technical regulation within the meaning of Article 1.1 Annex 1 TBT Agreement. As indicated above, this question previously had been subject to much discussion in the WTO Committee on Trade and Environment and the literature.45 The parties to the dispute agreed with this finding and did not appeal it. What was contentious, however, was the third requirement to be met in order to consider a labelling scheme a technical regulation, namely that the labelling requirements be mandatory. This requirement distinguishes labelling requirements that constitute technical regulations within the meaning of Article 1.1 Annex 1 TBT Agree41

On the order of analysis between GATT and TBT Agreement see Petros C. Mavroidis, Trade in Goods (2nd ed. 2012), 669, 670. 42

WTO, EC – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body of 12 March 2001, WT/DS135/AB/R, paras. 66–70; id., EC – Trade Description of Sardines, Report of the Appellate Body of 26 September 2002, WT/DS231/AB/R, paras. 175–176. The definition of “technical regulation” in Art. 1.1 Annex 1 TBT Agreement reads “Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method”. 43

Id., Tuna II, Panel (note 9), para. 7.62.

44

Ibid., para. 7.78.

45

Supra, note 27.

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ment from standards as defined in Article 1.2 Annex 1 TBT Agreement. While two Panel members found that compliance with the US ‘dolphin-safe’ labelling scheme was mandatory,46 one panellist dissented.47 The finding of the Panel majority was later appealed by the US, but affirmed by the Appellate Body.48 The US claimed – supported on this issue by Robert Howse as amicus curiae49 – that the labelling requirements were not mandatory because tuna products may be sold on the US market with or without a ‘dolphin-safe’ label.50 The counterargument that was endorsed by the Panel majority, and subsequently the Appellate Body, states that compliance is mandatory because the US labelling legislation not only demands that the requirements of the labelling scheme are met for a product to be eligible for the US ‘dolphin-safe’ label, but also disallows the use of any other labels that testify to the ‘dolphin-safety’ of tuna products, even though these products do not comply with the requirements of the US labelling scheme.51 The US argued that it is typical for voluntary labelling standards that a label may only be used if the standards on which the label is based are met. The US argumentation can be illustrated with the following example: If you conclude that the US scheme is mandatory – thus the US implicitly argued – you must also conclude that the requirements to use the FOS label are mandatory for a fish product may only carry the FOS label if it complies with the FOS labelling requirements. Yet, clearly this is a voluntary scheme as producers do not have to participate in it and may sell their products also without the FOS label. This argumentation is not convincing, however, as the US labelling scheme differs in one crucial respect from voluntary labelling schemes such as the FOS labelling scheme. The difference is that the FOS labelling requirements do not and cannot prevent producers from using another label such as the MSC’s label if they do not comply with the FOS requirements, but do meet the 46

WTO, Tuna II, Panel (note 9), para. 7.145.

47

Ibid., paras. 7.146–7.188.

48

Id., Tuna II, Appellate Body (note 9), para. 199.

49

Robert Howse, WTO, Tuna II (AB-2012-2/DS381), Amicus Curiae Submission of 17 February 2012, 8–9. 50 51

WTO, Tuna II, Panel (note 9), paras. 7.91–7.99.

Id., Tuna II, Appellate Body (note 9), para. 199. While the Appellate Body limited its analysis to whether the labelling scheme was de jure mandatory, the Panel also examined whether it was (as claimed by Mexico) de jure and de facto mandatory and confirmed that it was, WTO, Tuna II, Panel (note 9), paras. 7.113–7.144.

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less demanding requirements of the Marine Stewardship Council. In contrast to the US government neither MSC nor FOS have the regulatory power to prescribe the information that must or must not be provided on the packaging of products marketed in the US. Yet, the US labelling scheme does make such a prescription. It does not allow the marketing of tuna products with a ‘dolphin-safe’ label if the respective tuna was not fished in accordance with the standards laid out in US legislation. The choice for the producer is to either comply with the US labelling requirements or not to use any ‘dolphin-safe’ label at all. Thus the US legislation creates a monopolistic labelling scheme non-compliance with which is sanctioned and enforcement of which is backed by government authority. From the point of view of the effectiveness of labelling schemes, and as pointed out by Robert Howse,52 the US legislation of course makes a lot of sense. If different tuna products carry different ‘dolphin-safe’ labels, consumers must inquire into the standards underlying these labels and then compare them in order to decide which products meet their sustainability preferences best. It is easily understandable that faced with several labels standing for different sets of information consumers concerned with dolphin safety may choose not to buy any tuna at all. If by contrast only one label is being used and this label is being backed by governmental authority consumers may feel confident that buying tuna carrying this label they do not contribute to harm done to dolphins during tuna fishing. Yet, it also becomes clear that more is involved here than the provision of information or the way information is presented. Rather what the labelling legislation represents is an authoritative determination by the legislator as to which requirements need to be met in order for tuna to be ‘dolphin-safe.’ Exercising its authority the US legislator decided (and in this point departed from the standards under the International Dolphin Conservation Programme) that also psychological stress incurred by dolphins being encircled during tuna fishing leads to these fishing operations not being ‘dolphin-safe.’ The government backing of the US ‘dolphin-safe’ label which excludes the use of labels based on different standards is the reason for the qualification of the US labelling scheme as a

52 Robert Howse, Consumer Labelling on Trial at the WTO, in: Marise Cremona et al. (eds.), Reflections on the Constitutionalisation of International Economic Law: Liber Amicorum for ErnstUlrich Petersmann (2014), 593.

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mandatory technical regulation which results in a higher burden of justification for the government than applies to voluntary standards under the TBT Agreement.53 IV. Attribution of the Consumption and Production Effects of Labelling: Private Choice or Public Power A second question debated in both cases – Tuna II and COOL – and central to determining the power of labelling is whether any impact on trade observed in connection with government-backed labelling is attributable to the labelling scheme or the free choice of private economic actors. While studies show that labelling does affect consumer and producer behaviour,54 opinions differ on the question to whom to attribute the effects of labelling. Both of the recent WTO disputes concerning the US ‘dolphin-safe’ and the US country of origin labelling schemes shed light on how the authors of labelling schemes – in this case the US government and administration – impact production and consumption. In both cases the dispute settlement organs had to inquire whether the labelling schemes accorded to the claimants’ (Mexican and Canadian) products ‘less favourable’ treatment within the meaning of the non-discrimination obligation of Article 2.1 TBT Agreement than to like US products. As both measures do not discriminate de jure between foreign and US products, the dispute settlement organs had to begin their inquiry with an assessment whether the government measures at issue changed the conditions of competition to the detriment of the claimants’ products.55 A finding of detrimental impact on competitive opportunities is a necessary, not, however, a sufficient condition to find discrimination. Moreover it must be shown that such detrimental impact does not stem exclusively from a legitimate regulatory distinction.56 53 According to the TBT Agreement members shall ensure that their central government standardisation bodies comply with the TBT Code of Good Practice for the Preparation, Adoption and Application of Standards (Annex 3 TBT Agreement) and with respect to standards of non-governmental and local government bodies members must take reasonable measures to ensure compliance by these bodies with the code (Art. 4.1 TBT Agreement). 54

See for example Teisl/Roe/Hicks (note 29).

55

WTO, Tuna II, Appellate Body (note 9), para. 255; id., COOL, Appellate Body (note 8), para. 286.

56

Id., US – Measures Affecting the Production and Sale of Clove Cigarettes, Report of the Appellate Body of 4 April 2012, WT/DS406/AB/R, para. 182; id., Tuna II, Appellate Body (note 9), para. 215; id., COOL, Appellate Body (note 8), para. 286.

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While I address regulatory distinctions/purposes in section V. below, in the following I concentrate on an argument put forward by the US government to object to the claims that it was the governmental labelling scheme that changed conditions of competition to the detriment of Mexican tuna products and Canadian and Mexican meat products respectively. The US argued in Tuna II and COOL that it was the free choices of private actors that affected conditions of competition and not the US labelling schemes. The Appellate Body in both cases did not follow this argument, but instead pointed out the causal role of the government in shaping the market for tuna and meat products in the US through mandatory labelling requirements.

A. COOL – Attribution of the Production Effects of Labelling

In the COOL dispute Canada and Mexico claimed, inter alia, that the US country of origin labelling scheme, consisting of the COOL statute and implementing regulations (the COOL measure),57 discriminated against Canadian and Mexican livestock (cattle and hogs) in violation of Article 2.1 TBT Agreement and that it was more trade restrictive than necessary and thus violated Article 2.2 TBT Agreement. In this dispute it was not contentious that the COOL measure constitutes a technical regulation within the meaning of Article 1.1 Annex 1 TBT Agreement.58 The COOL measure establishes information requirements in relation to three different stages in the life of slaughter-animals: birth, raising, and slaughter. It provides for four different labels: Label A for meat products where all three production stages took place in the US (indicating the US as country of origin), Label D where all three production stages took place abroad (indicating only the country declared as country of origin on import documentation for customs purposes), and Labels B and C for products of mixed US and foreign origin (indicating up to three countries where the animal was born, raised, and slaughtered in a specific order laid down by the COOL measure). Label B is applied to meat from livestock born abroad, but raised and slaughtered in the US, Label C to meat products from livestock born and raised abroad, and imported to the US for immediate slaughter.

57

For a detailed description of the measure see id., COOL, Panel (note 8), paras. 7.75 et seq.

58

For the respective finding of the Panel see ibid., para. 7.216.

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The high potential administrative burdens imposed on producers by this labelling scheme are immediately apparent. Information on origin with respect to each stage – birth, raising, and slaughter – has to be recorded and passed on from upstream to downstream producers to retailers. The US legislator took account in particular of the difficulties of implementation that arise when livestock of different origin is ‘commingled’ and the COOL measure provides that meat of different origin that is commingled on one production day may bear the same label. Thus, for example, if cattle born and raised in the US is slaughtered in a US slaughterhouse on the same day as cattle born in Canada, but raised in the US, the resulting meat products may all carry Label B thus designating the meat as of multiple origin even though some of the meat is of exclusive US origin. These ‘commingling’ provisions do not allow producers to freely choose between labels. They prescribe, for example, that commingled meat may never carry Label A so that Label A is reserved for meat products that stem from livestock born, raised, and slaughtered in the US, while meat carrying Label B or C may be of mixed origin or exclusive US origin (but commingled with meat of mixed origin). Mexico and Canada claimed that the COOL measure treated livestock from Mexico and Canada less favourably than livestock from the US and thus violated Article 2.1 TBT Agreement. As evidence for less favourable treatment they referred inter alia to COOL discounts being applied by slaughterhouses to imported livestock (meaning lower prices paid by slaughterhouses for imported livestock) and to the fact that some producers exclusively relied on US livestock as a result of the COOL measure.59 The Panel agreed with the claimants that the COOL measure changed the conditions of competition to the detriment of imported livestock.60 The Panel’s argumentation, upon appeal upheld by the Appellate Body,61 in short went as follows: The cheapest way for producers to comply with the obligation to provide accurate information about each stage of production is to segregate livestock of different origin. While segregation allows producers to reduce the costs of maintaining reliable information on the country of origin as required by the COOL measure, it will be even less costly to process exclusively US livestock, reasons being that foreign livestock only makes up for a small market share in the US and does not fully meet consumer demand and that US livestock is often located nearer to US domestic markets than 59

For the respective arguments put forward by Canada see ibid., paras. 7.374–7.376.

60

Ibid., paras. 7.372, 7.381 and 7.420.

61

Id., COOL, Appellate Body (note 8), para. 292.

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foreign livestock. As the costs of compliance with the COOL measure cannot be fully passed on to consumers the lower costs of exclusively processing livestock of US origin create an incentive to do so. The COOL measure thus affects competitive opportunities to the detriment of foreign livestock.62 Neither Panel nor Appellate Body followed the US argument that a change in competitive conditions was not attributable to the US government since the COOL measure did not legally require producers to rely exclusively on US livestock. The US argued that if producers did opt for doing so, this was a choice of private actors not mandated by law. Panel and Appellate Body by contrast affirmed earlier case law and held that in order to attribute a change in competitive conditions to a measure it was sufficient that the measure provided incentives for private behaviour that led to such effects.63 Even if Panel and Appellate Body may be criticised for not conducting a more careful empirical inquiry to establish the effects of the labelling measure on meat production,64 COOL illustrates how a label that on its face merely aims at consumer information without purporting to pursue any further regulatory objective can have potentially far-reaching effects. If compliance with labelling requirements implies significant administrative burdens for producers, the respective labelling scheme may incentivise changes in production to minimise such burdens. This is all the more likely if producers are not able to pass on the costs of labelling to consumers. If consumers had a preference for meat raised abroad, US meat producers would be less likely to rely exclusively on US livestock in order to reduce implementation costs of country of origin labelling. Producers might instead be willing to bear the administrative costs of producing meat of exclusively US and meat of mixed origin as they would – given consumer preferences – be able to pass on the costs of compliance with the labelling requirements to consumers. If, however, consumers prefer meat of US origin, relying exclusively on US livestock will not only reduce the costs of complying with the labelling requirements, but may also put producers in a position to profit from this consumer preference by selling meat of US origin at a higher price. 62

Ibid., paras. 256–292.

63

Ibid., paras. 288–291; id., Korea – Various Measures on Beef, Report of the Appellate Body of 11 December 2000, WT/DS169/AB/R, para. 145. 64 Petros C. Mavroidis/Kamal Saggi, What is not so Cool about US–COOL Regulations? A Critical Analysis of the Appellate Body’s Ruling on US–COOL, World Trade Review 13 (2) (2014), 299.

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It may be concluded that the COOL measure illustrates the potential power of labelling schemes to induce far-reaching changes in production either because such changes are necessary in order to provide reliable information or because changes allow producers to reduce the cost of providing the required information. The issue of attribution further prompts us to think about the reasons and purposes of requiring certain information to be exhibited on products, a question that will be addressed in section V. below.

B. Tuna II – Attribution of the Consumption Effects of Labelling

In Tuna II Mexico claimed that the US ‘dolphin-safe’ labelling scheme discriminated against Mexican tuna products in violation of Article 2.1 TBT Agreement. Mexico supported this claim as follows:65 Most tuna caught by Mexican fleets is caught in the Eastern Tropical Pacific using purse seine vessels setting on and encircling dolphins. As the Mexican tuna industry is characterised by a high degree of vertical integration most tuna products of Mexican origin contain tuna caught in the ETP by Mexican vessels. As a consequence most Mexican tuna products do not have access to the US ‘dolphin-safe’ label as this label may not be carried by products that contain tuna which was caught by setting on dolphins. Moreover, even if tuna is not caught by setting on and encircling dolphins, fleets fishing with purse seine nets in the ETP have to meet stricter requirements than fleets fishing with purse seine nets outside the ETP for their tuna to be eligible for the US ‘dolphin-safe’ label. Mexican tuna products were thus at a competitive disadvantage vis-à-vis tuna products from the US and third countries which contained tuna not caught in the ETP. Mexico further supported its discrimination claim with the fact that US processors of major tuna brands – StarKist, Bumblebee, and Chicken of the Sea – had ceased to purchase unlabelled Mexican tuna products for fear of consumer boycotts and NGO scandalisation. Assessing Mexico’s discrimination claim, the Panel found first that Mexican tuna products were like tuna products originating in the US or other countries.66 This finding was not disputed. What was disputed, however, was whether any disadvantage suffered by Mexican tuna vis-à-vis tuna from the US or other countries was attribut65

WTO, Tuna II, Panel (note 9), paras. 4.41 et seq.

66

Ibid., para. 7.251.

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able to the US labelling requirements or rather to the action of private persons, namely the large US tuna processors not buying Mexican tuna or consumers not buying Mexican tuna products. As in the COOL case the US argued that the detrimental effects to Mexican tuna were due to private choice. They pointed out that major US tuna processors had decided – prompted by lobbying of environmentalists and consumer boycotts – no longer to buy tuna caught by setting on dolphins already before the US adopted the first labelling legislation in 1990.67 Following the US argumentation the Panel was not convinced that it was the labelling scheme rather than the independent decisions of US processors that denied Mexican tuna access to major distribution channels. It also was not persuaded that retailers and consumers would purchase Mexican tuna products if they were eligible for an alternative ‘dolphin-safe’ label linked to lower protection standards than the official US label.68 One may interpret the Panel’s argumentation as adhering to a conception of ecolabels as mere consumer information tools. The Panel understood the US ‘dolphinsafe’ label to build on existing consumer preferences – in this case for tuna caught in a particular way. All the label does is to allow consumers to act on this preference. It does so by providing consumers with the information to distinguish between tuna products that meet their preferences and those that do not. The government, by codifying labelling requirements, does not steer behaviour. It merely addresses an information asymmetry between producers and consumers relating to production methods and thus promotes the proper functioning of the market by enabling consumers to act freely in accordance with their preferences. Consumer behaviour may in turn affect production to the effect that unlabelled products for which there is no or only little demand are no longer produced. The US fleet, for example, by 1994 had entirely ceased to set on dolphins for the purpose of catching tuna.69 Yet, the Tuna II dispute reveals the dimensions in which labelling schemes go beyond merely satisfying consumer demand for information. It is true that ecolabelling may be a reaction to certain consumer sentiments or NGO scandalisation and in the case of the tuna controversy it certainly was. It is also true, however, that the elaboration of standards on which an ecolabel is being based, frequently will shape 67

Ibid., para. 7.182.

68

Ibid., paras. 7.361–7.368.

69

Ibid., para. 7.327.

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and concretise heretofore only vaguely articulated consumer preferences, for example for ‘dolphin-safe’ tuna. Consumers may have a preference for tuna caught in a way that does not harm dolphins. Yet, they may have no clear idea about which fishing techniques are harmful to dolphins, they may not even want to assess expert opinions themselves, but may simply want to rely on a trusted authority to make the determination which tuna products to consider ‘dolphin-safe.’ Labelling schemes do this work for the consumer. They set (or endorse) standards, in this case standards that determine which requirements have to be met for tuna to be ‘dolphin-safe’ and they also determine how much and in which form information is conveyed to the consumer. If the government adopts labelling legislation, it may, as the US government did for the ‘dolphin-safe’ label, determine that no label apart from the official label may be used. Thus governmental legislation that determines the standards that need to be met for tuna to be considered ‘dolphin-safe,’ and that only allows those products that meet these standards to be labelled ‘dolphin-safe,’ not only enables markets to function as they would, were consumers fully informed about all product and process characteristics (information which due to its quantity they would not be able to fully process), but actively shapes consumer preferences and thus induces changes in production and consumption. The Appellate Body recognised this power of the US labelling scheme and attributed a change in market conditions to the detriment of Mexican tuna to the US measure. It stressed that the label is of significant commercial value on the US market. And as it is the US labelling legislation that grants or denies access to the label and thus to a commercially valuable asset, the Appellate Body argued, the labelling legislation changes the conditions of competition to the detriment of Mexican tuna products which are less likely to be eligible for the label than tuna products from the US or third countries.70 In this case – as in COOL – the finding that the labelling scheme changed the conditions of competition to the detriment of the claimant’s products was not sufficient to find a violation of the non-discrimination obligation of Article 2.1 TBT Agreement. What follows from this finding, however, is that the labelling scheme requires justification under WTO law. The respondent can meet this justificatory burden by showing that the detrimental impact of the measure on the competitive opportunities of foreign products is due to a legitimate regulatory distinction. The 70

WTO, Tuna II, Appellate Body (note 9), para. 239.

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determination whether less favourable treatment was justified or constituted discrimination in COOL and Tuna II thus required an inquiry into the purposes of labelling.

V. The Purposes of (Eco-)Labelling As set out above, the information to be provided by a label is always the outcome of a selection. This selection will frequently be explained by the purpose for which information is exhibited on a label. Yet, pointing to ‘consumer information’ tout court as the objective of labelling hardly bears any explanatory value. Informed consumer choice is an unattainable goal as exhaustive information cannot possibly be provided by a label nor processed by a consumer. The purpose of product labels thus can only be informed choice in relation to particular product/process/life-cycle aspects. The decision which information to reveal about which aspects of a product may be linked to consumer demand for certain information – for example how much sugar foodstuff contains – or to a regulatory aim that is being pursued – for example to deter people from eating too many sweets – or a mixture of both. That it is difficult or impossible to clearly distinguish between the regulatory purpose and the information purpose of labels becomes clear when comparing COOL and Tuna II. In both cases the dispute settlement organs inquired into the purpose of the respective labelling scheme when assessing claims that the measure at issue was discriminatory (Article 2.1 TBT Agreement) and more restrictive of trade than necessary (Article 2.2 TBT Agreement).

A. COOL – Consumer Information through Country of Origin Labelling

In COOL the dispute settlement organs had to inquire into the purposes of the US country of origin labelling scheme in order to determine whether the detrimental impact of the COOL measure on imported livestock vis-à-vis US livestock was justified by a legitimate regulatory distinction. If such a justification on the basis of regulatory purpose can be demonstrated, the measure does not violate the nondiscrimination provision of Article 2.1 TBT Agreement. Moreover, the dispute settlement organs had to engage with the purpose of the COOL measure when

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assessing whether it was more trade restrictive than necessary and thus inconsistent with Article 2.2 TBT Agreement. Both Panel and Appellate Body followed the US statement of purpose according to which the measure was aimed at consumer information on origin.71 They did not agree with the Canadian and Mexican claims that the true aim of the labelling regime was protection of the US meat industry.72 The Panel further was of the view, upheld on appeal, that the objective to provide information on origin was a legitimate objective under the TBT Agreement.73 The Appellate Body also upheld the Panel’s finding that the COOL measure discriminated against Canadian and Mexican livestock in violation of Article 2.1 TBT Agreement.74 It faulted the Panel for its reasoning, as the Panel had not – after finding a detrimental impact of the labelling regime on Canadian and Mexican livestock – continued to assess whether this detrimental impact stemmed exclusively from a legitimate regulatory distinction.75 Yet, when completing the analysis it relied on the Panel’s findings that the information that reached consumers by the way of labelling did not correspond to the recordkeeping and verification requirements imposed on producers with respect to the three relevant stages of production. The Panel had found that while processors of livestock had to record information about origin for each piece of livestock at each stage of production and pass on this information to the next production stage the eventual labels affixed to meat products did not convey this information to consumers. In fact, only Label A, according to the Panel, transmitted any meaningful information, namely that all three production stages had taken place in the US. By contrast, meat exhibiting Labels C or B due to the commingling provisions could be either of exclusive US origin or of mixed origin. Label D only designates the country of origin for customs purposes and does not differentiate between stages of production. Thus even consumers perfectly informed about the COOL measure and its labelling requirements cannot from Labels B, C, or D know the exact

71

WTO, COOL, Panel (note 8), paras. 7.617, 7.620, 7.685; id., COOL, Appellate Body (note 8), para. 433. 72

Id., COOL, Panel (note 8), para. 7.576.

73

Ibid., para. 7.651; id., COOL, Appellate Body (note 8), para. 453.

74

Id., COOL, Appellate Body (note 8), para. 350.

75

Ibid., para. 293.

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origin of the respective meat product.76 Given the discrepancy between the obligations the COOL measure imposes on meat processors with respect to maintaining information about origin, on the one hand, and the amount of information transmitted to consumers via the country of origin labels, on the other hand, as well as the fact that no rational basis was identified for this disconnect, the Appellate Body came to the conclusion that the COOL measure resulted in an arbitrary disproportionate burden on upstream producers and processors and was not justifiable.77 There is indeed a significant discrepancy between the purported purpose of the labelling measure, namely to provide information on origin with respect to the three production stages birth, raising, and slaughtering and the information which ultimately reaches the consumer. If a meat product carries a label of category A, consumers will know that all stages took place in the US; if a product exposes a label of category B or C, consumers will know that slaughter took place in the US and that it is possible that all other stages took place abroad; and if a meat product exhibits a label of category D, consumers will know that all stages took place abroad, but will not know whether all stages took place in the country that the label indicates, as the label indicates only the country of origin relevant for customs purposes. The labels thus provide some country of origin information which, however, only in case of Label A reliably identifies where livestock was born, raised, and slaughtered. Yet, as Robert Howse convincingly argued, the fit between labelling measure and the actual consumer labels becomes much closer if the purpose of the COOL measure is being specified.78 If we probe further, we may detect the rational basis between the COOL measure and the specific form that consumer information takes under the labelling scheme which the Appellate Body was missing.79 According to Howse, consumers may have different reasons for valuing information about origin of meat products, one of them being that they take origin as a proxy for safety. Thus, they may hold meat that was born, raised, and slaughtered in the US to be safer than meat originating from abroad, or they may value the information that livestock was slaughtered in the US because they fear

76

Ibid., paras. 332–339.

77

Ibid., paras. 340–349.

78

Howse (note 49).

79

WTO, COOL, Appellate Body (note 8), para. 347.

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contamination of meat with E. coli bacteria and believe that the risk of contamination is higher for meat slaughtered in foreign slaughterhouses.80 If the purpose of the labelling scheme is thus specified, namely as meeting particular consumer demands to know whether livestock was born, raised, and slaughtered in the US and to know whether it was imported before slaughtering, then the examination of whether this purpose justifies the particular design of the labelling measure may find a closer fit between the labelling requirements and the information conveyed to consumers. Without conducting such an analysis here,81 I merely wish to point out that the COOL case demonstrates that even labels which at first sight plainly aim at the provision of information – here facts about origin – may when taking a closer look reveal purposes that go beyond the mere provision of information. The US country of origin labelling scheme arguably caters to demands for reassurance about meat safety. If the government is mandating labels and if labelling imposes relatively high compliance costs on producers, it appears necessary to engage seriously with these purposes. The TBT Agreement calls for such an engagement. It allows governments wide discretion as regards the objectives they aim to pursue with their technical regulations, including labelling schemes, the objectives listed in Article 2.2 TBT Agreement being but examples of legitimate regulatory objectives.82 Yet, it also demands that a government is able to relate the requirements a labelling scheme imposes on market participants to the regulatory aims that are pursued with the measure. In the COOL case, for the US to claim that the purpose of the labelling scheme was country of origin information tout court was not convincing given the differential impact the measure had on imported and domestic livestock and the limited information that actually reached the consumer. Scrutiny with respect to the purposes of labelling schemes may also allow for a critical assessment whether alternative labels or entirely different measures may indeed be better suited to achieve a given purpose. Under the TBT Agreement an inquiry into alternative measures is mandated by the requirement in Article 2.2 TBT Agreement that a measure shall not be more trade-restrictive than necessary to fulfil a legitimate objective.83 80

Howse (note 49).

81

For a defense of the COOL measure, see ibid.

82

WTO, COOL, Appellate Body (note 8), paras. 370–372.

83

In COOL the Panel had ended its analysis under Art. 2.2 TBT Agreement with a finding that the COOL measure did not fulfil the objective of consumer information and therefore violated Art. 2.2

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B. Tuna II – Environmental Protection through Ecolabelling

In Tuna II the Panel accepted the submission by the US that its ‘dolphin-safe’ labelling scheme pursued two objectives: One objective was to ensure that consumers were not misled or deceived about tuna that was caught in a manner that adversely affected dolphins.84 The other objective of the measure was to contribute to the protection of dolphins by ensuring that the US market was not used to encourage fishing fleets to catch tuna in a manner that adversely affects dolphins.85 The acknowledgement of the latter as a legitimate objective by Panel and Appellate Body86 confirms that the dispute settlement organs hold the extraterritorial protection of the environment or animal health to be a legitimate regulatory purpose under WTO law. The only link that existed here between the domestic measure (the labelling scheme) and the environmental danger abroad (threats to the health of dolphins) was domestic consumption of tuna products containing tuna fished in extraterritorial waters. Thus one can read the Appellate Body report in Tuna II to acknowledge that governments may legitimately aim to protect the environment from harmful production processes abroad by regulating domestic consumption.87 Even though the Appellate Body in Tuna II only recognised that extraterritorial environmental harm may be addressed through product-labelling, it opened the door for using the same argumentation (that the domestic market shall not be used to encourage unsustainable production) also in relation to more far-reaching regulatory measures such as, for example, an outright marketing ban. If a government wants to ensure that domestic consumption does not

TBT Agreement (WTO, COOL, Panel (note 8), para. 7.719). The Appellate Body reversed this finding, holding that the measure did contribute towards achieving the objective of consumer information (WTO, COOL, Appellate Body (note 8), para. 468); however, it could not complete the analysis whether the measure was more trade-restrictive than necessary for the lack of findings by the Panel or undisputed facts with respect to the trade-restrictiveness of alternative measures suggested by the claimants (para. 491). 84

WTO, Tuna II, Panel (note 9), paras. 7.401 and 7.413.

85

Ibid., paras. 7.401 and 7.425.

86

Ibid., para. 7.444; WTO, Tuna II, Appellate Body (note 9), para. 337.

87

Cf. Gregory Shaffer, The WTO Tuna-Dolphin II Case (United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products), University of Minnesota Law School, Legal Studies Research Paper Series, Research Paper No. 12–62, 8, available at: http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2176863 (accessed on 3 December 2014).

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contribute to unsustainable production, such a ban may be justifiable as necessary and the least trade-restrictive measure to achieve this objective. To return to the purposes of the ‘dolphin-safe’ labelling scheme: Even though in Tuna II the US submitted that the labelling scheme pursued a regulatory objective (protection of dolphins), the dispute settlement organs still treated the two objectives – consumer information and dolphin protection – separately. This separation of the information and regulatory function appears to be artificial and problematic as the objective of preventing consumer deception can only be understood in light of the objective to protect dolphins and the level of protection the US seeks to realise. As I argued above, the label ‘dolphin-safe’ conveys a particular understanding of what constitutes ‘dolphin-safe’ tuna fishing. What is considered ‘dolphin-safe’ is not merely a question to be answered by reference to natural science. Whether a certain fishing technique is ‘dolphin-safe’ or not cannot be assessed in terms of true or false. The question can only be answered by reference to certain standards the establishment of which involve a number of value judgements, such as, for example, how much distress to dolphins is acceptable or in general terms: which level of protection shall be attained. Not misleading consumers must therefore be interpreted to mean that the label certifies that tuna has been caught in a manner for which the legislator has expressed a preference in the labelling provisions. It follows that it is not convincing to assume that differential treatment of like products through an ecolabelling scheme can be justified merely in terms of consumer information. Rather justification hinges on whether the regulatory objective that informs the labelling requirements is recognised as legitimate by the TBT Agreement and whether its pursuit explains the differential treatment between products. The Appellate Body, when assessing the question whether the detrimental impact on Mexican tuna products caused by the labelling scheme was justified by the regulatory objective to realise a particular level of dolphin protection, came to the conclusion that it was not and that the labelling scheme consequently violated Article 2.1 TBT Agreement. According to the Appellate Body, the US measure was not calibrated to the risks to dolphins from different fishing techniques. While it fully addressed the risks for dolphins stemming from the fishing technique of setting on dolphins used by the Mexican fleet it did not to the same extent address the risk of mortality outside the ETP resulting from other fishing

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methods.88 Purse seine vessels fishing outside the ETP only have to certify that they do not encircle or set on dolphins to be eligible for the US ‘dolphin-safe’ label, but do not have to certify that no dolphins were killed or seriously injured.89 The Appellate Body also indicated how the discrimination might be remedied, namely by changing the US labelling scheme to the effect that captains of vessels fishing outside the ETP have to certify that no dolphins are being harmed during tuna fishing operations.90 Appellate Body and Panel not only had to inquire into the regulatory objectives of the ‘dolphin-safe’ labelling scheme when assessing Mexico’s discrimination claim on the basis of Article 2.1 TBT Agreement. They also addressed this issue when determining whether the US labelling scheme was more trade-restrictive than necessary and thus violated Article 2.2 TBT Agreement. The assessment hinged on the question whether the US could have adopted a less trade-restrictive measure by allowing the ‘dolphin-safe’ label of the AIDCP to coexist with the US ‘dolphin-safe’ label. According to the Appellate Body a measure to constitute a less trade-restrictive alternative must not only be less trade-restrictive than the measure at issue, it must also make an equivalent contribution to the relevant legitimate objective and be reasonably available.91 The Panel found that to allow the label established under the AIDCP to coexist with the US label constituted a less trade-restrictive measure that would achieve the US consumer information and dolphin protection objectives to the same extent as the exclusivity of the US ‘dolphin-safe’ label.92 The Appellate Body disagreed and reversed the Panel’s finding that the US labelling scheme was more trade-restrictive than necessary and therefore violated Article 2.2 TBT Agreement.93 Correctly, in my view, the Appellate Body argued that the alternative measure would not achieve the same level of protection sought by the US labelling scheme. As a consequence of admitting the AICDP label, tuna caught in the ETP by setting on dolphins could be sold in the US with a ‘dolphin-safe’ label. Since this technique, however (according to the judgement of the US legislator), involves harm to dolphins, the US would achieve its objec-

88

WTO, Tuna II, Appellate Body (note 9), para. 297.

89

Ibid., para. 292.

90

Ibid., para. 296.

91

Ibid., para. 323.

92

WTO, Tuna II, Panel (note 9), paras. 7.563, 7.564, 7.577, 7.564.

93

Id., Tuna II, Appellate Body (note 9), para. 331.

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tive of protecting dolphins to a lesser extent.94 The Appellate Body moreover held the view that also the consumer information objective would be achieved to a lesser extent as ‘unsafe’ tuna would be eligible for ‘dolphin-safe’ labelling.95 Yet, as argued above, this finding can only be made on the basis of a certain understanding of what means ‘dolphin-safe’ as expressed in the US labelling scheme.

VI. The Hidden Power of Ecolabels The recent WTO disputes Tuna II and COOL demonstrate that it is inadequate to characterise ecolabels as information tools that allow consumers to realise their given preferences. Rather the dispute settlement reports serve to highlight that labelling schemes when backed by government authority are powerful regulatory instruments in need of justification. Furthermore, the reports provide important clarifications as to the extent of WTO members’ right to regulate. They demonstrate the long way dispute settlement in the trade regime has come since the first tuna dolphin controversy within the GATT. Contrary to the early contentious decisions in the realm of trade and environment they explicitly acknowledge that governments may distinguish between products exhibiting the same physical characteristics if such a distinction is justified by a legitimate regulatory interest for example to prevent unsustainable production. The Appellate Body in Tuna II accepted as a legitimate regulatory objective the objective to ensure that the domestic market is not used to encourage detrimental production processes abroad. Thus it not only emphasised the need for justification of government labelling schemes, but also indicated that WTO law does not stand in the way of other, less ‘market-based’ and more interventionist government measures for the protection of the environment. A careful and critical assessment of labelling may well lead us to the conclusion that ecolabels are not very effective in containing unsustainable production and consumption and that the emphasis on market-based instruments such as ecolabels neither maintains real freedom of choice nor empowers the consumer but rather disempowers citizens. Effectiveness may be limited, given that capacity of consumers to ‘vote’ through consumption is restricted. Restrictions result from limits of mental process94

Ibid., para. 330.

95

Ibid.

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ing capacity of information relevant for sustainable consumption. They also stem from the fact that decision-making with a view to promoting sustainability frequently requires more than the assessment of a single issue (such as ‘dolphin-safety’), but rather a weighing and balancing of many different social, economic, and environmental aspects. Such weighing and balancing typically takes place in collective government institutions such as legislatures and cannot be outsourced to individual consumers. Yet, government institutions in their endeavour to promote growth increasingly turn to marketing-experts in order to learn how to influence consumers, and to so-called market instruments such as labels to promote sustainability not through mandating sustainable production but through consumer choice for sustainable products. Thus, a scenario emerges in which government and politics less and less provide citizens with an opportunity to realise their collective autonomy, and governments’ marketing experts nudge consumers into making the ‘right’ choices.96 While there are good reasons to support ecolabelling schemes that make up for government weaknesses, for example in preventing overfishing in a transnational constellation, we should be careful before we embrace ecolabels as preferable to government intervention that bans unsustainable products and production methods. While ecolabels may provide us with a choice as consumers – between fish products with one or the other label or no label at all – as citizens we can debate and open up a very different set of choices including the choice whether we want to sustain economies of growth or not.

96

Cf. Christopher McCrudden, Nudging and Human Dignity, 6 January 2015, available at: http:// www.verfassungsblog.de/nudging-human-dignity/#.VMeu8S7F1x8 (accessed on 27 January 2015).

GENERAL ARTICLES

On Self-Reflectivity, Performativity, and Conditions for Existence of Sources of Law in International Law DIEGO GERMÁN MEJÍA-LEMOS(

ABSTRACT: This article’s main claim is that rules of international law governing conditions for existence of sources of law in international law can exist and be created through the sources which such rules govern. Sources of law are fundamental in international law, principally as legal bases for determining questions as to creation and identification of principles and rules of international law, and, thus, of high practical importance. Albeit their relevance is largely undisputed, and there is renewed interest in them, their treatment in scholarly literature continues to be fraught with unsettled controversies. Of paramount significance from among such controversies is that of the possibility of rules of international law determining what conducts constitute sources of law in international law, which concerns ‘conditions for existence.’ The possibility of rules governing such conditions for existence is claimed to arise in connection with, amongst others, two properties predicable of the application and creation of such rules, respectively: self-reflectivity and performativity. This article sets out arguments disproving the standard position in scholarly literature, which denies the possibility of the rules under examination, and considers some major implications of the prima facie existence of rules of customary international law governing ‘conditions for existence.’ KEYWORDS: International Law, Sources of Law, Sources of Obligation, Custom, SelfReflectivity, Performativity

I. Introduction Sources of law are fundamental in international law,1 principally as legal bases for determining questions regarding the creation and identification of principles and (

President’s Graduate Fellow, Faculty of Law, and Associate, Centre for International Law, National University of Singapore. Many thanks to Simon Chesterman, Andrew Halpin, and two anonymous peer reviewers, for their thoughtful comments, and the editorial team, for the assistance kindly provided. 1 See International Law Commission (ILC), First Report on Formation and Evidence of Customary International Law, UN Doc A/CN.4/663 (2013), 17, para. 38: “as in any legal system, there must in public international law be rules for identifying the sources of the law”.

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rules of international law,2 and, thus, of high practical importance.3 Albeit their relevance is largely undisputed, and there is renewed interest in them, their treatment in scholarly literature continues to be fraught with unsettled controversies. Of paramount significance from amongst such controversies is that of the possibility of rules of international law determining what conducts constitute sources of law in international law. The prevailing position in scholarly literature, most often adopted tacitly, is grounded on the proposition that a rule of international law whereby sources S1, S2, and S3 are sources of law in international law cannot be created through sources S1, S2, or S3. Such impossibility is claimed to chiefly arise out of infinite regress, allegedly entailed by the ‘logical’ necessity of an additional source, Sn+1, creating a rule whereby source Sn is a source of law. Alternatively, the necessity that the rule created through Sn+1 be ‘constitutional’ or ‘natural’ is postulated as a means to avoid infinite regress, impossibility being only ascribed to the creation of such ‘constitutional’ or ‘natural’ rules through Sn. The main claim of the present paper is that rules of international law determining, as a matter of law, what conducts constitute sources of law in international law, can exist and be created through the same sources of law which such rules govern. This possibility is grounded, amongst others, on two properties predicable of the application and creation of such rules, respectively: self-reflectivity and performativity. The remainder of the paper is divided into four parts. Part II demonstrates that the question under examination is a question of law and that, as such, it is concerned with conditions for existence of sources of law, understood as legal requirements. Part III discusses the prevailing position, its strands, and the arguments in support thereof and demonstrates their fallaciousness. Part IV considers the properties of self-reflectivity and performativity, as a matter of both practice and legal theory, and demonstrates their suitability as conceptual bases for rules of international law governing conditions for existence of sources of law in international law. Part V concludes.

2

See generally Clive Parry, The Sources and the Evidences of International Law (1965), 92; Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), 17. 3 See generally Robert Y. Jennings/Arthur Watts, Oppenheim’s International Law (9th ed. 1992), 23, para. 8; James Crawford, Brownlie’s Principles of International Law (8th ed. 2012), 20.

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II. International Law and Conditions for Existence of Sources of Law This part examines in further detail three categories, namely ‘source of law,’ ‘source of obligation,’ and ‘conditions for existence.’ Furthermore, it maintains that these categories are legal, and considers the implications of such legal character.

A. ‘Source of Law’ in International Law as a Legal Category

A ‘source of law’ in international law is constituted by (1) conduct which is attributable to subjects of law having the degree of legal personality required to create international law and (2) the legal consequence of which is the creation of principles and rules of international law. The practical relevance of this category, in addition to its suitability for the delimitation of the scope of international law,4 chiefly arises out of the necessity and continuing importance of finding the law governing a given subject-matter,5 lex lata, as distinguished from lex ferenda.6 Such relevance remains unaffected despite claims to the contrary.7 4 This was, indeed, the main argument in support of adopting a source-based approach in the identification of international law since as early as the drafting of the Statute of the Permanent Court of International Justice, 16 December 1920, LNTS 6, 380. Cf., inter alia, Alain Pellet, Article 38, in: Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahms (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed. 2012), 731, 737–738, paras. 13–16. 5

Parry (note 2), 7, stating, in relation to “any enquiry into sources” of international law, that “[t]he ultimate purpose of such an inquiry is to find out what international law is”. 6 International Court of Justice (ICJ), Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3, 22–24, in which the Court, having proceeded to “the determination of the existing rules of international law relevant to the settlement of” the dispute (para. 49), held that “the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down” (para. 53). Id., South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, ICJ Reports 1966, 6, 34, para. 49. 7

Left aside the claims made by writers denying the distinction between law and non-legal normative systems or factual aspects of their operation, the relevance of sources of law to the identification of norms of international law is contested on grounds of the primary role that interpretation allegedly performs, to the exclusion of conditions for existence as criteria for identification. In this vein, it is submitted that the existence of a source of law is not solely or primarily determined through interpretation, without prejudice to the contingent interpretation of rules of international law setting out conditions for existence of a given source of law, as is the case with any rule of law. See e.g. Ingo Venzke,

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The legal character of this category has mainly two implications. First, factual aspects of conduct relevant to a source of law do not entail that a question concerning sources of law, as claimed by Hart, is a “question of fact.”8 This view, espoused recently by d’Aspremont,9 runs counter to the very purpose of advocating formal law ascertainment in international law.10 Secondly, if international law is complete, judicial findings of non liquet being prohibited,11 and matters such as the creation of States being necessarily a question of law, not of fact,12 for international law to remain complete, as Crawford claims,13 so should be the case, a fortiori, with the more fundamental matter of sources of law in international law.

1. Conduct Attributable to Subjects of International Law ‘Conduct,’ used in relation to a source of law, comprises actions and omissions or a set, considered in aggregate, of actions and omissions,14 and thus characterises more appropriately sources of law in international law,15 which are often deemed to consist exclusively of acts.16 The general category ‘subjects of international law’ further indi-

How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012), 10–12, claiming that there is a “shift towards interpreters,” away from sources of law, despite his proposition that “legal normativity not only depends on formal pedigree but also on the practice of interpretation” (emphasis added). 8

H. L. A. Hart, The Concept of Law (3rd ed. 2012), 293.

9

Jean d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (2011), 216. 10

Thus contradicting the main purpose of that author’s work, see ibid., 5.

11

See e.g. Jennings/Watts (note 3), 13, para. 3, without prejudice to the respective compromis.

12

James Crawford, The Creation of States in International Law (2nd ed. 2006), 6.

13

Ibid., 5–6, stating that, in essence, “the question is whether international law itself, in one of its most important aspects, is a coherent or complete system of law”. 14 Conduct is also used in relation to internationally wrongful acts qua source of obligation, i.e., of international responsibility. Cf. ILC, Report on the Work of its 53rd Session, UN Doc. A/56/10 (2001), 63; id., Report on the Work of its 63rd Session, UN Doc. A/66/10 (2011), 34. 15 16

‘General principles’ also stem from practice, ILC (note 1), 17, para. 36.

Cf. Mark E. Villiger, Customary International Law and Treaties. A Manual on the Theory and Practice of the Interrelation of Sources (2nd ed. 1997), 37, para. 48, citing Art. 38 (1)(b) Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute), and stating, in relation to the

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cates that the conduct in question17 consists of that which is attributable to legal persons which have a degree of legal personality under international law that includes the right, and respective capacity, to partake in the creation of international law through the existing sources of law.18 Such persons, which include, most prominently,19 States and certain international organisations,20 have law-creating authority21 and are thus not merely subjects of rights and obligations under international law. This is reflected in Article 3 common to the Vienna Conventions on the Law of Treaties of 1969 (1969 VCLT)22 and 1986 (1986 VCLT)23 and relevant propositions of the International Court of Justice (ICJ).24

“conduct of States,” that it may be “active” or “passive;” Parry (note 2), 64, stating: “actions must be deemed to include words and also inaction”. 17

This legal category is not defined, but merely qualified, so as to exclude, in general, individuals and private legal persons. See generally Hugh Thirlway, The Sources of International Law (2014), 177, referring to individuals as being “outside the category of subjects of international law for purposes of custom-creating practice;” Vladimir Đuro Degan, Sources of International Law (1997), 148; Godefridus J. H. Hoof, Rethinking the Sources of International Law (1983), 63. 18 The attribution of conduct as a necessary element of practice has been expressly accepted, most recently by the ILC, Report on the Work of its 66th Session, UN Doc. A/69/10 (2014), 239, para. 138. See, also, inter alia, Henry G. Schermers, The International Organization, in: Mohammed Bedjaoui (ed.), International Law: Achievements and Prospects (1991), 67, 69, para. 10; ILC, Yearbook of the International Law Commission, vol. II (1966), 189, Commentary (5). 19

ILC Yearbook (note 18).

20

Namely intergovernmental organisations, cf. e.g. Art. 2 (1)(i) common to the 1969 and 1986 Vienna Conventions on the Law of Treaties (Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 311 (1969 VCLT); Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol. II (1986 VCLT) (not yet in force)); ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, 15, 25; International Law Association (ILA), London Conference: Statement of Principles Applicable to the Formation of General Customary International Law (2000), 19, Principle 11 and Commentary (a), available via: http://www.ila-hq.org/en/committees/index.cfm/ cid/30 (accessed on 18 November 2014); ILC (note 1), 3, para. 6. 21

An ‘authority-based analysis’ has been recently advocated. Cf. Duncan B. Hollis, Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law, Berkeley Journal of International Law 23 (1) (2005), 137, 144–145. 22

Cf. 1969 VCLT (note 20).

23

1986 VCLT (note 20).

24

ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174, 178.

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2. Legal Consequence: Creation of Principles and Rules of International Law Sources of law, which are frequently referred to as ‘formal’25 and as being a ‘lawmaking’26 procedure27 through which principles and rules of international law28 are created29 and from which such principles and rules derive their legal validity,30 forming the basis of “positive law tests,”31 allow for the identification of principles and rules of international law.32

25

See generally Jennings/Watts (note 3), 23, para. 8; ILC (note 1), 12, para. 28; ILA (note 20), 12, stating: “the term ‘source(s) of law’ is used to denote the processes or means by which rules of law are created or, as the case may be, determined”. 26

The ICJ has referred to “positive law processes” and “law-making processes,” see respectively ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, 37, para. 60; id., Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, 18, 37, para. 23. 27

ILC (note 14), 56, Commentary (7).

28

It is unnecessary to distinguish between the sources of ‘general’ and ‘special’ norms of international law for present purposes, see e.g. Gennadij Michajlovič Danilenko, Law-making in the International Community (1993), 9, stating that he would “deal primarily with the creation of general international law,” Crawford (note 3), 21, stating that treaties are not a source of law as they are “not a source of rules of general application”. 29

‘Generation’ is often used interchangeably with ‘creation,’ Villiger (note 16), 182, para. 281. To the extent that the amendment and termination of a norm is effected through another norm, only creation is referred to. See, nevertheless, inter alia, Samantha Besson, Theorizing the Sources of International Law, in: id./John Tasioulas (eds.), The Philosophy of International Law (2010), 163, 163. 30

ICJ, North Sea Continental Shelf Cases (note 26), 29, para. 38.

31

Ibid.

32

The concept of ‘rule of recognition,’ which is confined to “providing general criteria for the identification” of rules, but does not encompass creation thereof, is not employed. Cf. Hart (note 8), 214. Hence, no “transposition” of Hart’s theory is intended, unlike, arguably, D’Amato, Danilenko, and Walden, inter alia, cf. d’Aspremont (note 9), 16, footnote 24, and 75, footnote 244. See also e.g. Hiram E. Chodosh, Comparing Comparisons: In Search of Methodology, Iowa Law Review 84 (1999), 1025, 1072, note 208, claiming that Art. 38 ICJ Statute directly “contains the functional equivalent of rules of recognition”.

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B. Distinction between Sources of Law and Sources of Obligation in International Law

‘Sources of obligation’ under international law33 are constituted by conducts attributable to subjects of international law which have the legal consequence of creating obligations,34 the terms of which are set out by principles or rules of international law. They are, according to the United Nations International Law Commission (ILC), “processes for creating legal obligations recognized by international law.”35 The main aspects of this distinction, which is expressly adopted by members of the ILC,36 and of utmost importance,37 are twofold. First, the existence of an obligation depends upon that of an underlying principle or a rule setting out its terms and is, thus, derivative.38 Secondly, while the validity of principles and rules of international law is subject to conditions and may be challenged on substantive or formal grounds under international law,39 the legal force of an obligation is not necessarily subject to further conditions under international law.40 Hence, unilateral acts of international 33

The preposition “under” further indicates the derivative character of sources of obligations, J. H. W. Verzijl, International Law in Historical Perspective: Juridical Facts as Sources of International Rights and Obligations, vol. VI (1973), 2–3. 34

Including ‘international responsibility,’ ILC (2001) (note 14), 88, Commentary (2); id. (2011) (note 14), 14, Commentary (5). 35

‘Conduct’ and ‘subjects of international law’ are also used, ILC (2001) (note 14), 35, Commentary (8), and 55, Commentary (3). 36

See Special Rapporteur Rodríguez Cedeño’s commentaries, ILC, Yearbook of the International Law Commission, vol. II, Part 2 (2002), 86, para. 411. 37 Sources of law are often not distinguished from those of rights and obligations. This position is erroneous. See generally Danilenko (note 28), 24–25, stating that “nor does the doctrine of sources seek to explain all the ways in which states and other international actors create international legal obligations”. 38

Hence, engagement of international responsibility arising out of breach of obligations under a rule is not a criterion for attributing legal character to the rule, cf. Malgosia Fitzmaurice/Olufemi Elias, Contemporary Issues in the Law of Treaties (2005), 4–5. Contra, Anneliese Quast Mertsch, Provisionally Applied Treaties: Their Binding Force and Legal Nature (2012), 74. 39 40

See e.g. Arts. 42–53 1969 VCLT.

As for unilateral acts of State incorporating into internal law the content of unilateral acts of international organisations, remedies are available only regarding the former, under internal law, the latter being only susceptible of ‘indirect’ challenge, also on grounds of internal law. See generally Antonios Tzanakopoulos, Domestic Court Reactions to UN Security Council Sanctions, in: August Reinisch (ed.), Challenging Acts of International Organizations Before National Courts (2010), 54, 60; Stefan Talmon, The Security Council as World Legislature, American Journal of International Law 99 (2005), 175, 178.

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organisations or organs thereof, regardless of the scope of their powers, and the material content of the act, can only be sources of obligation, as rightly pointed out by Greenwood,41 Danilenko,42 and Rodríguez,43 thus disproving claims that certain unilateral acts constitute ‘new’ sources of law in international law.

C. Sources of Law as Independent Bases of Validity and Legal Force

The creation of principles and rules of international law is confined to principles and rules which are autonomous,44 namely those having independent bases of validity and legal force under international law. Such autonomy implies that principles and rules of international law, even if identical in their scope of application, exist and remain valid and in force, being applicable to the same case, in parallel.45 These propositions are recognised in the practice of States and international organisations, most prominently as reflected in the 1969 VCLT46 and formulated by the ICJ in the Nicaragua case.47

41

Christopher Greenwood, Sources of International Law: An Introduction, 2008, available at: http://legal.un.org/avl/pdf/ls/Greenwood_outline.pdf (accessed on 27 August 2013), 5, stating: “the Council does not create new laws but rather obligations in relation to specific issues and it is not a legislature (see the decision of the ICTY in Tadić (1995))”. 42

Danilenko (note 28), 24–25.

43

ILC (note 36), 86, para. 411, stating that, in the opinion of Special Rapporteur Rodríguez Cedeño, taking into account the views of “the vast majority of members,” “unilateral acts were not a source of law within the meaning of Article 38 of the ICJ statute, but they could constitute a source of obligations.” See also infra, II.C. 44

See Georges Abi-Saab, Cours Général de Droit International Public, Recueil des Cours de l’Academie de Droit International (RCADI) 207 (1987), 192, distinguishing formal sources proper from “derived sources” on grounds that the latter “from a formal point of view, […] cannot be but derived sources, as they belong to an equally derived legal order (that of the constituting treaty of the organisation)” (translation by the author). 45

Independence does not entail that each source of law belongs to a separate legal order. Contra, Alf Ross, On Law and Justice (1959), 106; Jörg Kammerhofer, Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems, European Journal of International Law (EJIL) 15 (3) (2004), 523, 548, 551–552. 46 47

Preambular para. 9 and Art. 38 1969 VCLT, preambular para. 9 and Art. 38 1986 VCLT.

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, 14, 98, para. 185.

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Hence, acts which lack an independent basis of validity and legal force fall outside the legal category of source of law in international law. Indeed, the lack of such autonomy disproves propositions to the effect that certain acts are ‘new’ sources of law in international law, such as, most notably, unilateral acts of States, as claimed by, inter alia, Verhoeven,48 decisions of international courts and tribunals, as sustained by, inter alia, Fitzmaurice,49 and, most prominently, unilateral acts of international organisations, as maintained by Abi-Saab,50 d’Aspremont,51 Fassbender,52 Li,53 Pauwelyn,54 Sands and Klein,55 and Talmon,56 amongst others.57 Such alleged ‘new’ sources of law are all, in fact, dependent upon the existence of a source of law in international law, most notably custom or treaty, without prejudice 48

Joe Verhoeven, Droit International Public (2000), 314.

49

Gerald G. Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, in: F. M. van Asback et al. (eds.), Symbolae Verzijl: Présentées au Professeur J. H. W. Verzijl à l’Occasion de Son LXX-ième Anniversaire (1958), 153, 154, characterising judicial decisions as “quasi-formal in character”. 50

According to Abi-Saab, normative acts of an international organisation’s internal law are equal in all respects to sources of law of international law, Abi-Saab (note 44), 192, stating that “if, from a formal point of view, they cannot be but derived sources, as they belong to an equally derived legal order (that of the constituting treaty of the organization), this remark is of a purely theoretical significance […] if by source one understands a process of normative creation, it is undeniable that resolutions constitute an original form of them on the international plane” (translation by the author). 51

d’Aspremont’s proposed formal law-ascertainment criteria are based on the assumption that certain United Nations Security Council Resolutions are sources of law independently of the Charter of the United Nations, 26 June 1945, UNCIO 15, 335(UN Charter), d’Aspremont (note 9), 189, claiming, in relation to such resolutions, that “the use of simple linguistic indicators can significantly help rein in the indeterminacy inherent in the difficulty of drawing a line between law and non-law”. 52

Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (2009), 96: “the constitutionality of such legislative acts of the Council is generally accepted”. 53 Guang Min Li, International Law (2006), 15: “the sources of international law develop according to the development of international relations and international law, and resolutions of international organisations, are increasingly recognised by scholars as a source of international law” (translation by the author). 54

Joost Pauwelyn, Conflict of Norms in Public International Law (2001), 90.

55

Sands and Klein propose that true new sources of law arise out of “the adoption of norms of a general, abstract, impersonal, and binding character, the effects of which are not limited in time” by the United Nations Security Council, Philippe Sands/Pierre Klein, Bowett’s Law of International Institutions (6th ed. 2009), 287, para. 11-037. 56 57

Talmon (note 40), 176, cited by Fassbender (note 52), 96.

Without prejudice to their place in the formation of custom. See e.g. Houria Tazi Sadeq, From Water Law to the Right to Water in Morocco and Beyond (2008), 175.

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to the possibility that they constitute sources of obligations under international law,58 the above claims chiefly stemming from the confusion of these two categories of sources.59 As for unilateral acts of States, they may be sources of obligation60 under principles and rules of international law.61 As for decisions of international courts and tribunals, the fact that the stare decisis doctrine is not accepted in international law, implies that they may only be sources of obligation, binding upon the parties to the dispute,62 without prejudice to, inter alia, their character as “subsidiary means” within the meaning of Article 38 (1)(d) ICJ Statute. As for unilateral acts of international organisations,63 they may be, in the event of becoming binding under the constituting treaty, sources of obligations.64 This holds true, regardless of content, both for deci-

58

See particularly the proposition that Art. 38 (1) ICJ Statute is an incomplete statement inasmuch as it fails to refer to, inter alia, unilateral acts of States, which are “at the origin of obligations,” Prosper Weil, Le Droit International en Quête de Son Identité: Cours Général de Droit International Public, RCADI 237 (1992), 138. This view is based on the assumption that Art. 38 (1) ICJ Statute concerns sources of obligation, not only of law. 59

Danilenko (note 28), 24–25, stating that “[i]nternational obligations may result from rules of law emanating from the established sources of law, but they may also be created by unilateral acts, which, notwithstanding claims to the contrary, are not sources of law. Obligations may also be established by certain obligation-creating procedures stipulated in a treaty, such as a decision of an organ of international organization competent in the matter by reason of its constituent instrument, a judgment by the I.C.J. or an award made by an international arbitral tribunal”. 60 ILC (note 36), 215, para. 411, stating the Special Rapporteur’s conclusion that “unilateral acts are not a source of law, within the meaning of Article 38 of the Statute of the International Court of Justice, but they could however constitute a source of obligations”. 61 See generally Krzysztof Skubiszewski, Unilateral Acts of States, in: Bedjaoui (ed.) (note 18), 221, 231–232, paras. 50–52. 62 Sands/Klein (note 55), 367, para. 13-045, stating that Art. 59 ICJ Statute has the “effect of preventing the coming into existence of a ‘stare decisis doctrine;’” Greenwood (note 41), 4; Danilenko (note 28), 253, referring to Art. 94 UN Charter, whereby UN Member States undertake “to comply with the decision” of the ICJ. 63

Without prejudice to the character of certain such acts as sources of law of the international organisation’s internal law. See generally Jennings/Watts (note 3), 47, para. 16. 64 Including treaties which are constitutive instruments of international organisations having attained ‘universal’ membership. Indeed, the res inter alios acta rule is applicable to the entirety of the UN Charter, including its Art. 2 (6), which, notwithstanding the fact that the obligation imposed on members concerns the conduct of any State, including non-members, remains binding only on the parties to the UN Charter. This is consistent with the practice of non-Member States of the UN, most prominently Switzerland until it decided to become a member. Cf. Danilenko (note 28), 60.

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sions of organs which exercise delegated regulatory powers and for United Nations Security Council resolutions adopted under Chapter VII of the UN Charter.65

D. ‘Conditions for Existence,’ and Process of Formation, of Sources of Law in International Law Distinguished

‘Conditions for existence’ is a legal category, used by the ICJ, the ILC, domestic courts,66 and certain writers,67 which designates a set of conditions that must be met for a given conduct to come into existence and constitute a source of law or a source of obligation in international law. It places emphasis on the fulfilment of requirements, under international law, for the existence of the sources in question, and is thus not merely confined to the question of how they are ‘defined.’68 Also, it distinguishes the question under examination from other related, yet entirely different matters, such as those concerning the process of formation of sources of law.69

65 Greenwood (note 41), 5; Danilenko (note 28), 192, stating: “However, while these procedures undoubtedly constitute novel modes for the creation of international obligations for states participating in the relevant treaties, they hardly qualify as new formal sources of general international law existing independently of a specific treaty arrangement;” Abi-Saab (note 44), 192, pointing out the formal character of such unilateral acts as belonging to a “derived legal order (that of the constituting treaty of the organisation)” (translation by the author). 66

See, inter alia, ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment of 21 December 1962, ICJ Reports 1962, 43, 328; ILC, Yearbook of the International Law Commission, vol. II, Part 2 (2001), 56, 140–141; ILC (note 14), 168; Tokyo District Court, Kamibayashi et al. v. Japan, Judgment of 18 April 1989, reprinted in: ILM 29 (1990), 391, 426. 67

See generally Villiger (note 16), 15, 16, and 182; Olufemi Elias/Chin Lim, ‘General Principles of Law’, ‘Soft’ Law and the Identification of International Law, Netherlands Yearbook of International Law 28 (1997), 3, 10, referring to “truth-conditions for the existence of a rule of treaty or customary law.” Truth is not predicable of these legal conditions, without prejudice to the truth value of propositions describing the rules setting out such conditions. 68

See e.g. Fitzmaurice/Elias (note 38), 47, referring to definition, and yet stating that it allows to “examine different legal phenomena which might or might not be treaties;” Hilary Charlesworth/Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (2000), 62, stating: “The sources of law define how rules are made”. 69 Claims of uncertainty have been put forward without distinguishing between conditions for existence of sources of law and procedures for their formation. See generally Kammerhofer (note 45), 551–552. Uncertainty regarding the identification of international law may still arise out of the adoption of broad, policy-oriented or impact-oriented, theories of international law, in which “international law ends up indiscriminately encompassing any decision made by any international decisionmaker,” d’Aspremont (note 9), 108.

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III. The Prevailing Position and its Strands This part succinctly analyses the argument in support of the prevailing position, its content and strands, and demonstrates their fallacious character.

A. The ‘Logical’ Strand of the Prevailing Position and Infinite Regress

The negation of the possibility of rules governing sources of law in international law is supported by an argument the most representative form of which is found in the work of Fitzmaurice,70 based on Ross’s following statement: “the doctrine of the sources can never rest on precepts contained in one amongst the legal sources the existence of which the doctrine itself was meant to prove.”71 Fitzmaurice states the argument as follows: the sources of international law are undiscoverable, as they can never be exhaustively stated – for any proposition to the effect that a, b, c and d … (e) … (f) … etc., are the sources, and the only sources of law, must immediately be falsified by the fact that this proposition could only be established by invoking a further and independent proposition which would give the original proposition itself its validity, but which (requiring as it must a further and separate source) would then, by its very existence, be simultaneously destructive of the original proposition.72

Fitzmaurice further postulated the existence of “rules of law having an inherent and necessary validity, which are ultimate formal sources of law, but are themselves underived [sic]” and which he claims to be “rules of natural law.”73 While the claim that such ‘underived rules’ are ‘natural’ is not espoused by most writers,74 Fitzmaurice’s other aforementioned statements form the core of the ‘logical’ strand of the prevailing position.75 70

Fitzmaurice (note 49), 161.

71

Alf Ross, A Textbook of International Law: General Part (1947), 83.

72

Fitzmaurice (note 49), 161 (emphasis in the original).

73

Ibid., 175.

74

Fitzmaurice’s claim appears to differ from Ross’s own views. Cf. Hoof (note 17), 196.

75

Parry (note 2), 6, stating, in relation to Ross, that “[h]e accepts the theory of the logical impossibility of its exhaustiveness”.

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The view that infinite regress76 precludes the possibility of rules of international law concerning conditions for existence of sources of law is expressly adopted, most prominently, by Jennings and Watts, in the 1992 9th edition of Oppenheim’s International Law. They state that “Article 38 cannot itself be creative of the legal validity of the sources set out in it, since it belongs to one of those sources itself.”77 It is noteworthy that this statement is not concerned with the character of Article 38 ICJ Statute as a treaty provision and that, in the formulation of their propositions, they cite Ross.78 Jennings and Watts neither state whether rules other than those set out in Article 38 ICJ Statute would be “creative of the legal validity of the sources,” nor whether the fact that Article 38 ICJ Statute “reflects state practice” implies that such practice can be, or would already constitute, custom and whether such body of customary rules can, or, if its prima facie existence is accepted, does in fact, govern the conditions for existence of sources of law in international law. The above statements by Jennings and Watts are uncritically featured in more recently published scholarly literature,79 including, for instance, Pellet’s chapter on Article 38 ICJ Statute in the 2012 edition of a collective commentary on the ICJ Statute.80 Similar statements are found in the work of other writers,81 including

76 Cf., inter alia, Parry (note 2), 5–6, “if we postulate an external rule – a higher norm – we must find a source for that in a still higher norm and so on”. 77

Jennings/Watts (note 3), 24, para. 9.

78

Ibid.

79

It must be borne in mind that the predominant position is most frequently espoused tacitly, as observed in the introduction, for specialised literature directly dealing with the present enquiry is rather scarce, the topic being most often avoided or cursorily discussed, if at all. See generally d’Aspremont (note 9), 75, stating: “international legal scholarship has remained largely averse to investigations of the theoretical foundations of formal law-ascertainment”. 80 81

Pellet (note 4), 759, para. 80, transcribing the above-cited statement by Jennings and Watts.

See e.g. Niels Petersen, Customary Law without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation, American University International Law Review 23 (2008), 275, 299, stating: “[t]he existence of a doctrine of sources cannot be established by reliance upon elements of this doctrine itself”.

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Dworkin,82 and literature regarding the ‘constituting elements’ of sources of law, as illustrated by Kammerhofer.83

B. The ‘Constitutional’ and ‘Natural’ Strands of the Prevailing Position and Finite Regress

The ‘constitutional’ strand is mainly grounded upon Kelsen’s writings on legal theory84 and international law85 and is adopted, most prominently, by Verdross,86 Simma,87 Danilenko,88 and Thirlway.89 Other writers, such as Shaw and Dixon, are regarded as espousing similar views.90 A less commonly adopted view is that of the ‘natural’ strand, derived from Fitzmaurice’s proposition of ‘underived rules,’91 recently accepted by Hollis.92 82 Ronald Dworkin, A New Philosophy for International Law, Philosophy & Public Affairs 41 (1) (2013), 2, 21 “the consent theory made a good part of Article 38 circular and unhelpful,” a provision which, by his own reckoning, is at the core of “the consensus among scholars that it correctly states the grounds of international law,” given its “salience”. 83 The basis of his rejection of the possibility of customary rules governing the creation of custom is that “[n]o practice is possible with respect to rules creating rule-creating rules, creating rules, unmaking rules (formal abrogation), because such a ‘practice’ would necessarily be in the ideal realm and precisely not real ! which is what practice per denitionem is,” Kammerhofer (note 45), 539. 84

Hans Kelsen, General Theory of Law and State (1945, reprinted 2009), 258, referring to “[t]he legislative process, that is, the creation of general norms, is divided into at least two stages: the creation of general norms […] and the creation of general norms regulating this process of legislation,” the “latter norms” being characterised as the “constitution” and stating that “law regulates its own creation,” 132. 85

Id., Principles of International Law (1952), 303.

86

Alfred Verdross, Die Quellen des Universellen Völkerrechts: Eine Einführung (1973), 13, cited by Fassbender (note 52), 30. 87

Bruno Simma, Universelles Völkerrecht (3rd ed. 1984), para. 75.

88

Danilenko (note 28), 191.

89

H. W. A. Thirlway, International Customary Law and Codification: An Examination of the Continuing Role of Custom in the Present Period of Codification of International Law (1972), 36. 90

Thomas Skouteris, The Notion of Progress in International Law Discourse, PhD Thesis, University of Leiden (2008), 125, referring to Shaw’s views as ‘quasi-constitutional’. 91 92

Fitzmaurice (note 49), 175.

Duncan B. Hollis, Introduction, in: id. (ed.), The Oxford Guide to Treaties (2012), 1, 2, stating: “pacta sunt servanda exists as a general principle of ‘natural law,’ independent of party promises or State practice”.

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One of the main conundrums which this strand faces93 is that this type of rules, either ‘natural’ or ‘constitutional,’ are, in the final analysis, “presupposed,” as posited most prominently by Kelsen,94 or “extra-legal” postulates, according to Thirlway.95 Similarly, scholars such as d’Aspremont, who postulate the existence of a ‘social thesis,’ based on Hart’s conception of the rules of recognition,96 albeit not making constitutional claims, also face the same challenge. Thus, ‘logical necessity’ remains at the core of the prevailing position, including its ‘constitutional’ and ‘natural’ strands. Indeed, either logical necessity entails infinite regress, and therefore precludes the possibility of the rules at issue, or, if regress is finite, such rules, either ‘natural’ or ‘constitutional,’ if any,97 are presumed to exist, as a result of, again, “logical necessity,” as Klabbers points out.98

C. The Prevailing Argument’s Fallaciousness

A fallacy is a deductive argument which is invalid. This invalidity arises out of the formal impossibility that the conclusion be inferred from the premises, or of the premises’ falseness, despite a formally valid inference, or both.99 In the former case, the fallacy is formal; and, in the latter, material, for the conclusion, although it does

93 The other one being the question of how and through what source rules modifying or abrogating ‘constitutional’ rules come into existence. See infra, V. This is in addition to the non-universal scope of application ratione personae of claimed constitutions, most notably the UN Charter, a treaty, in relation to international organisations, which are not members thereof, and yet members of the ‘international community’. 94

Ernesto Garzón Valdés, Two Models of Legal Validity: Hans Kelsen and Francisco Suárez, in: Stanley L. Paulson/Bonnie Litschewski Paulson (eds.), Normativity and Norms: Critical Perspectives on Kelsenian Themes (1998), 263, 266. 95 Thirlway (note 89), 36, stating that Art. 38 (1) ICJ Statute “is a statement of the extra-legal postulates upon which international law stands, or, in Sereni’s expression, one of the ‘principi costituzionali’ of international law” (emphasis in the original). 96

d’Aspremont (note 9), 216.

97

Thirlway (note 89), 36, positing extra-legal, and yet constitutional, postulates.

98

Jan Klabbers, The Validity and Invalidity of Treaties, in: Hollis (ed.) (note 92), 551, 564, footnote 70, stating his intention to make “an argument comparable to Fitzmaurice’s claim that pacta sunt servanda is best seen as a kind of natural rule”. 99

Patrick J. Hurley, A Concise Introduction to Logic (11th ed. 2012), 47.

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formally follow from the premises, is false.100 Traditionally, since the times of Aristotle, fallacies have been regarded as a means for deception,101 which, in the words of Bentham, have “a tendency to cause, with or without design, through the medium of erroneous opinion already entertained […] any pernicious course of action to be engaged or persevered in.”102 It is submitted that the prevailing argument is a material fallacy, primarily stemming from the unwarranted assumption of three false premises:103 (1) the identity of ‘norm’ and ‘proposition,’ and ‘validity’ and ‘truth;’104 (2) the deductive character of all propositions; and (3) the lack of reflectivity and performativity of the application and creation of norms, respectively.105

1. Failure to Distinguish Validity from Truth and Norm from Proposition The distinction between ‘norm’ and ‘proposition’ is well established in legal theory,106 and grounded on the distinct nature of norms, as elements of a legal order, and ‘propositions’107 as a representation or description of, inter alia, norms.108 As point-

100

Richard Wathely, Of Fallacies, in: Hans V. Hansen/Robert C. Pinto (eds.), Fallacies: Classical and Contemporary Readings (1995), 67, 73–74. 101

Indeed, their use as a deceptive device in argumentation is the origin of the use of ‘fallacy’ to refer to this type of unsound argument, cf. Jeremy Bentham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (1824), 6, pointing out that the Latin noun in the nominal plural ‘fallaciae’ derives from the verb ‘fallere’ which means ‘to deceive’. 102

Ibid., 5–6.

103

The following is predicated of claims confined to the constituting elements of sources of law through which the rules under examination may be created, supra, note 84. 104

See supra, III.A.

105

See infra, IV.

106

‘Propositions’ are, inter alia, representations of what law is, but not law as such. Cf., inter alia, Aleksander Peczenik, On Law and Reason (2009), 33–34. 107 This distinction would have been dismissed by Ross, alongside formal sources, as “sheer metaphysics,” cf. Alejandro Lorite Escorihuela, Alf Ross: Towards a Realist Critique and Reconstruction of International Law, EJIL 14 (2003), 703, 729. 108 See generally on the distinction between the prescriptive character of norms as opposed to the descriptive nature of propositions Uta Bindreiter, Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine (2002), 55–56.

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ed out by von Wright, while the properties of the former are those of the elements of a legal order, such as validity and legal force, the properties of the latter are those of any proposition in any field, such as being true or false.109 By failing to draw a distinction between legal ‘norm’ and ‘proposition,’ the properties of ‘propositions’ are falsely predicated of legal ‘norms.’ Most notably, this results in the validity and legal force of legal norm N1 providing that ‘S1,’ ‘S2,’ and ‘S3’ legally constitute sources of law in international law being falsely equated to the truth of the proposition P1 stating that, under N1, S1, S2, and S3 are sources of law in international law. Arguably, the truth of P1, if P1 were assumed to be not merely descriptive of N1, but deductive, would depend on that of P2. Indeed, if P1 is assumed to be deductive, and not merely a description of N1, P1 would be inferred from, amongst others, P2, so that the truth of Pn would need to be inferred from Pn+1, ad infinitum.110 Nevertheless, the validity of N1 is not the same as the truth of P1,111 nor need N1 and P1 be assumed to be non-reflective and deductive, respectively.

2. Failure to Account for Axiomatic Propositions The existence of premises which are not deductive and do not entail infinite regress has been well established since ancient times. As Aristotle observed, “not all knowledge is demonstrative.”112 The acceptance of the logical validity of propositions the truth of which need not depend on that of an infinite set of separate propositions is reflected in the work of Wittgenstein113 and Putnam.114 In their view, the logical validity of axi109

See generally Georg Henrik von Wright, Norm and Action: A Logical Inquiry (1963), 106.

110

It has been suggested that the postulation of a regressus ad infinitum alongside self-reference are the only two manners in which the origin of a normative order can be explained, see inter alia, Gunther Teubner, Breaking Frames: Economic Globalisation and the Emergence of Lex Mercatoria, European Journal of Social Theory 5 (2002), 199, 211. 111 The somewhat similar distinction between Sein (be) and Sollen (shall) has been recently used, for different purposes, Kammerhofer (note 45), 543. 112

Aristotle, The Logic of Science: a Translation of the Posterior Analytics of Aristotle: With Notes and an Introduction (transl. 1850), 43. 113

Ludwig Wittgenstein, On Certainty (ed. by Gertrude Elizabeth Margaret Anscombe/Georg Henrik von Wright 1969), para. 217. 114

Hilary Putnam, Representation and Reality (1988), 115.

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omatic propositions springs from the pragmatic need for the end of argument and is based on the view that the truth of such propositions is a matter of meaning and determined by reference to social conventions,115 which, in the realm of international law, could take the form of practice leading to the formation of custom.116 If, in the words of Aristotle, “man possesses a faculty that begins science,”117 it is, a fortiori, perfectly plausible that legal authorities possess the legal capacity to “begin” law.118 Indeed, as pointed out by Parry in relation to States,119 “while it is to them the law is given, they are the lawgivers.”120 Hence, the legal character of rules is not precluded by their property of not having a legal basis other than what they provide for. This implies that such rules need not be ‘extra-legal’ or ‘presupposed’ and incapable of creation through the existing sources of law in international law.121

IV. Self-Reflectivity, Performativity, and the Possibility of Rules of International Law Governing Conditions for Existence of Sources of Law in International Law This part, divided into two sections, sets out the arguments in support of the affirmation of the possibility of the rules in question, with a particular focus on selfreflectivity and performativity as conceptual grounds.

115

Leo Groarke/Louis Groarke, Hilary Putnam on the End(s) of Argument, Philosophica 69 (2002),

41, 56. 116 In this sense, it is not suggested that, given the relevance of such ‘social conventions,’ the rules would still consist of an extra-legal ‘social practice,’ as claimed by, inter alia, Hart and d’Aspremont, see supra, II.A. 117

Aristotle (note 112).

118

This is, again, not to assume that scientific statements are the same as norms, but, on the contrary, to affirm that, if the truth of undemonstrated scientific statements may be admitted, so should be the case, a fortiori, with the validity of rules of international law of a ‘foundational,’ ‘self-derived,’ character. 119

This is predicable of other subjects of international law, particularly international organisations, see supra, I.A.1. 120

Parry (note 2), 8.

121

Cf. supra, III.B.

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A. Self-Reflectivity and Performativity in Practice

The instances of practice which lend support to the view that, in general, selfreflective rules of international law can exist, including those governing conditions for existence of sources of law in international law, are succinctly analysed.

1. Self-Reflectivity and Formation of Treaties and Custom The rule whereby matters which arise necessarily before the entry into force of a treaty are governed by the applicable rules of the treaty at issue, including, amongst others, the very question of entry into force, is an instance of self-reflective rules of international law concerning the formation of sources of law in international law. As a conventional rule, it is contained in Article 24 (4) 1969 VCLT,122 which has been deemed to be declaratory of customary law of treaties.123 The existence of self-reflective rules of international law has been posited by some writers,124 both in connection with the aforementioned provision in the VCLT and rules governing the formation of custom.125

122

Cf., inter alia, Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), 14, para. 27, referring to “self-regulatory effects” of such treaty provisions; id. (note 16), 147, para. 226, stating: “there can be no logical paradox in the self-applicability of a conventional régime to its own rules, since self-regulatory effects are clearly feasible and have been practised in countless treaties which contain provisions on their own entry into force”. 123

Cf., inter alia, Villiger (note 122), 348, para. 15, relying on the statement relating unqualifiedly to Art. 24 VCLT as ‘general law’ by the ICJ in the Land and Maritime Boundary (Cameroon/Nigeria) case (Preliminary Objections, Judgment of 11 June 1998, ICJ Reports 1998, 294, para. 31) and Iraqi delegate Yaseen referring more specifically to para. 4 of the provision as “the expression of an existing rule of international law”. 124 See inter alia, Anthony D’Amato, International Law as an Autopoietic System, in: Rüdiger Wolfrum/Volker Röben (eds.), Developments of International Law in Treaty Making (2005), 335, 368–369. 125

Cf., inter alia, Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (2003), 229; Villiger (note 16), para. 15.

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2. Performativity and Legal Authority regarding Law-Making The application of the compétence de la compétence rule,126 also considered to be a general principle,127 whereby an international court or tribunal has jurisdiction to determine whether it has jurisdiction, including over whether it has compétence de la compétence,128 and its scope,129 while not self-reflective, is an instance of performativity,130 often regarded as an indication of the self-contained character of the system within which it is applied,131 even in the absence of express provision, as observed in The Prosecutor v. Duško Tadić.132 The capacity to create the rule contained in Article 24 (4) 1969 VCLT has been considered to be similar in nature to the authority which the compétence de la compétence rule bestows upon international courts and arbitral tribunals.133 Performativity, in this case predicated of an international court’s rulings on its own jurisdiction, also serves as a conceptual ground for understanding the legal character of the creation of rules governing conditions for existence of sources of law in international law.134 126

This rule is also referred to as ‘Kompetenz-Kompetenz’.

127

Cf., inter alia, Robert Y. Jennings/Rosalyn Higgins, General Introduction, in: Christian Tomuschat et al. (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed. 2012), 3, 8, para. 17. 128

Cf., inter alia, Chittharanjan Félix Amerasinghe, Jurisdiction of International Tribunals (2003),

130. 129 VCf., inter alia, Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 275. 130 Performativity is not predicated of international trials or of certain crimes tried before international courts, see, inter alia, Ian Ward, Law, Text, Terror (2009), 85, concerning rape; Elizabeth Philipose, Prosecuting Violence, Performing Sovereignty: International Relations and the Laws of War, PhD Thesis, York University (1999), 75, relating to war crimes tribunals. 131

Referring to the International Criminal Tribunal for the Former Yugoslavia (ICTY) as ‘self-contained.’ See, inter alia, Jose E. Alvarez, Nuremberg Revisited: The Tadić Case, EJIL 7 (1996), 245, 247. 132 ICTY, Appeals Chamber, The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, reprinted in: ILM 35 (1996), 35, para. 18. 133 William Riphagen, Techniques of International Law, RCADI 246 (1994), 236, 259, affirming that there is a relationship between the rule of compétence de la compétence and Art. 24 (4) 1969 VCLT, which he deems to be “‘vertical’ expressions, and as such, balanced by the ‘horizontal’”. 134

See infra, IV.B.2.

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3. Practice in Connection with Conditions for Existence of Sources of Law in International Law There is a body of long-standing practice, which appears to have been disregarded by most academic writers due to their unwarranted assumption of the prevailing position,135 which lends support to the claim of prima facie existence of rules of general customary international law,136 having a universal scope of application, by virtue of the absence of persistent objection,137 and governing the conditions for existence of the existing sources of law in international law. The main instances of this body of practice, succinctly considered in this section, are threefold. First, there are instances of treaty practice, particularly multilateral, consisting in the adoption of Article 38 (1) ICJ Statute itself, common to the Permanent Court of International Justice and ICJ Statutes,138 the latter being an integral part of the UN Charter,139 and express references to Article 38 (1) ICJ Statute, most notably in Articles 74 (1) and 83 (1) United Nations Convention on the Law of the Sea.140 Secondly, there are statements made in international fora regarding sources of law in inter-

135

See infra, V.B., for a commentary on the views of Jennings/Watts and ILC Special Rapporteur Woods as generally illustrative of this state of affairs in scholarly writing. 136

Practice leading to the formation of such rules is not per definitionem precluded from coming into existence, by virtue of the same reasons for discarding the predominant position as fallacious. Contra Kammerhofer (note 83). 137

Cf. infra, V.B.

138

ILC (note 1), 13, para. 30.

139

During the United Nations Conference on International Organization (UNCIO), the Philippines’ proposal to vest legislative powers in the UN General Assembly (UN GA) was unanimously rejected, cf. Henry G. Schermers/Niels M. Blokker, International Institutional Law (4th ed. 2003), 768, para. 1221, footnote 261. 140

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

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national law by, inter alia, Argentina,141 Brazil,142 Japan,143 Mexico,144 Mozambique,145 and Nicaragua.146 Thirdly, there is practice of use of Article 38 (1) ICJ Statute by domestic courts whereby this provision is regarded, inter alia, as stating the “sources of international law,” according to Mutua v. Foreign and Commonwealth Office,147 as setting out the conditions for existence of sources of international law, in conformity with Kamibayashi et al. v. Japan,148 and as a ground for rejecting claims based on sources not referred to in Article 38 (1) ICJ Statute, relied upon in, inter alia, US v. Yousef,149 Aziz v. Alcolac, Inc.,150 and Yong Vui Kong v. Public Prosecutor.151

B. Self-Reflectivity and Performativity as Conceptual Grounds

This section analyses self-reflectivity and performativity as conceptual grounds for the possibility of the rules under examination, which allow making legal sense of the existing practice, beyond mere assertions regarding relevant practice. 141 UN GA, Review of the Role of the International Court of Justice, UN Doc. A/8382 (1971), 24, para. 61: “Regarding the law applied by the Court, it is the understanding of the Argentine Government that the Court applies positive international law as specified in Article 38 of its Statute”. 142

UN GA, 1492nd Meeting: Review of the Role of the International Court of Justice, UN Doc. A/C.6/SR.1492 (1974), 166: “The sources of international law were those listed in Article 38 of the Statute of the International Court of Justice, and those alone” (Statement by Sette Câmara (Brazil). 143

Ibid., 168: “The sources of law enumerated in Article 38 of the Statute of the Court were exhaustive”. 144

UN GA (note 141), 24, para. 63: “On the question of the law which the Court should apply, the Mexican Ministry of Foreign Affairs on the whole considers Article 38 of the Statute of the Court satisfactory as it now stands; it is the ultimate definition of the sources of international law in their most widely recognized gradation”. 145 Committee on the Elimination of Racial Discrimination, Twelfth Periodic Reports of States Parties due in 2006: Addendum: Mozambique, UN Doc. CERD/C/MOZ/12 (2007), 21, para. 82. 146

UN GA, 42nd Plenary Meeting, UN Doc. A/62/PV.42 (2007), 16–17.

147

Mutua et al. v. The Foreign and Commonwealth Office [2011] EWHC 1913 (QB), para. 87, stating that “[i]t is generally accepted that the sources of public international law are those appearing in Article 38 of the Statute of the International Court of Justice”. 148

Tokyo District Court (note 66), 426.

149

US Court of Appeals for the Second Circuit, US v. Yousef, 327 F.3d 56 (2003), 100.

150

US Court of Appeals for the Fourth Circuit, Aziz v. Alcolac, 658 F.3d 388 (2011), 398–399.

151

Court of Appeal of Singapore, Yong Vui Kong v. Public Prosecutor [2010] 3 SLR 489 [2010] SGCA 20, paras. 97–99, commented on in ILC (note 1), 38–39, para. 85 (b).

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1. Self-Reflectivity and Application of Rules of International Law The negation of self-reflectivity in the application of rules of international law stems from the general rejection of self-reference in law, chiefly on grounds of its seemingly paradoxical character.152 Paradoxes, albeit counterintuitive,153 need not involve falseness or contradictoriness.154 The possibility of self-referent rules and self-applicability is most frequently rejected as meaningless,155 given the lack of any referent to demonstrate the truth of the self-referent proposition, as claimed by Ross156 and tacitly accepted by writers maintaining the prevailing position.157 Nevertheless, once again, Ross’s view is, as pointed out by Hart, unsound, for a given proposition can be both self-referent and refer to entities other than itself.158 In this sense, Teubner’s characterisation of Hart’s concept of secondary rules as an instance of self-reference is, to a certain extent, apposite.159 Hence, the fact that the existence and operation of self-reflective rules may seem counterintuitive is without prejudice to the logical soundness of this category of rules 152

Cf. Peter Suber, The Paradox of Self-Amendment: A Study of Law, Logic, Omnipotence, and Change (1990), Section 5 D, available at: http://legacy.earlham.edu/~peters/writing/psa/ (accessed on 25 November 2014). The role of self-reference is sometimes regarded as problematic. See generally Martti Koskenniemi, Hierarchy in International Law: A Sketch, EJIL 8 (1997), 566, 578. 153

This is reflected in the alleged difficulties to ‘conceptualise,’ for instance, opinio iuris, cf., inter alia, Francesco Parisi, Spontaneous Emergence of Law: Customary Law, Encyclopedia of Law & Economics 5 (2000), 603, 606. 154

Mark Chang, Paradoxes in Scientific Inference (2013), 1.

155

Alf Ross, On Self-Reference and a Puzzle in Constitutional Law, Mind 78 (309) (1969), 1, 7, cited by Suber (note 152), stating that self-referent propositions do not denote anything. 156

Ibid.

157

Supra, III.A., commenting on the uncritical assumption, on the part of a series of scholars, of Ross’s views via Fitzmaurice’s propositions, discussed above. 158 H. L. A. Hart, Self-Referring Laws, in: Fridjof Lejman et al. (eds.), Festskrift Tillägnad Karl Olivecrona (1964), 307, 312, cited by Suber (note 152). 159

Ronnie R. F. Yearwood, The Interaction between World Trade Organisation (WTO) Law and External International Law: The Constrained Openness of WTO Law (A Prologue to a Theory) (2012), 77, footnote 6, citing Teubner’s statement whereby, through Hart’s secondary rules, the law “produces an internal self-description.” Only the attribution of ‘internal’ character to the self-reflective rules in question is apposite, as description is external and not self-referential.

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and the possibility, observed in practice, that they exist and operate.160 Indeed, selfreflectivity of legal rules in general has been claimed to be an essential element for the autonomy of law as a system, as posited in the work of Luhmann and Teubner.161 There is one additional argument, mainly stemming from Russell’s theory of types, which would lend support to the prevailing position and is implicitly relied upon by some writers holding it.162 According to Russell, “n-order” propositions cannot selfrefer to their own properties,163 referred to by “n+1-order” propositions,164 ad infinitum.165 Russell’s view was criticised by Wittgenstein,166 as he “had to mention the meaning of signs when establishing the rules for them,”167 thus failing to distinguish

160

Supra, IV.A.

161

Self-reference in law, albeit paradoxical, would be an essential element in a legal system’s “operational closure” and autonomy. See inter alia, Gunther Teubner, Global Bukowina: Legal Pluralism in the World Society, in: id. (ed.), Global Law without a State (1997), 3, 15; id., The King’s Many Bodies: The Self-Deconstruction of Law’s Hierarchy, Law & Society Review 31 (4) (1997), 763, 765; id., Introduction to Autopoietic Law, in: id. (ed.), Autopoietic Law: A New Approach to Law and Society (1988), 1, 2; Richard Nobles/David Schiff, Introduction, in: Niklas Luhmann et al. (eds.), Law as a Social System (2004), 1, 48, stating that “[s]uch theories would not represent a direct input of sociology or science into law or vice versa (which would contradict the premises of systems theory)”. 162

Cf. Gordon Hunnings, The World and Language in Wittgenstein’s Philosophy (1988), 44, pointing out that, in Russell’s view, “self-reference or reflexiveness” results from the ‘vicious-circle principle.’ Circularity has been predicated of Art. 38 ICJ Statute by, e.g., Dworkin (note 82), who relies upon the predominant position. 163

Bertrand Russell/Alfred Whitehead, Principia Mathematica (1903), 523; Matthew B. Ostrow, Wittgenstein’s Tractatus: A Dialectical Interpretation (2002), 64. 164

Cf., inter alia, Hunnings (note 162), 45.

165

The necessity of a hierarchy and infinite regress are expressly reaffirmed by Russell in later pieces of work, in response to criticism by Gödel and Tarski, cf. Bertrand Russell, Logical Positivism, Actas, Primer Congreso Argentino de Filosofía (1949) (1), 1205, 1209. 166

Despite his alleged admission of possible hierarchical arrangements of “propositions of different logical types,” cf. Hunnings (note 162), 99–100. 167

Ludwig Wittgenstein, Tractatus Logico-Philosophicus (1921, reprinted 2013), 19, para. 3.331.

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between sign and symbol.168 Russell’s views are also grounded on the alleged impossibility of self-inclusion of an entity through reference to a totality to which it belongs.169 Nonetheless, characterisations made “on the basis of a totality” are logically possible, for “self-reference […] is by no means always viciously circular”170 and, given that, “[n]ot all self-reference leads to contradiction, and some self-reference seems to be an indispensable tool in science as in everyday life.”171 Indeed, “it would make a travesty of ordinary language” to regard statements within the language providing an “internal image of itself” as necessarily nonsensical.172 Popper has demonstrated173 that “direct self-reference may be perfectly in order,”174 for, inter alia, meaningfulness in ‘ordinary language’ need not be conditioned on actual demonstrability.175 Self-reference is, indeed, at the basis of Gödel’s criticism of Russell’s system.176 Therefore, the place of self-reflectivity in legal systems, including international law, stems from its character as an element enabling international law, and legal systems in general, to be fully autonomous as legal orders.

168

Cf., inter alia, Peter Sullivan, On Trying to be Resolute: A Response to Kremer on the Tractatus, European Journal of Philosophy 10 (1) (2002), 43, 55–56. 169

Paul Livingston, The Politics of Logic: Badiou, Wittgenstein, and the Consequences of Formalism (2011), 13. 170

Jon Barwise et al., Foundations of Set Theory (2nd ed. 1973, reprinted 2001), 11.

171

Ibid., 195.

172

Livingston (note 169), 17. The aforementioned caveat is applicable if language’s “internal image of itself” is equated to “self-description regarding” law, cf. Yearwood (note 159). 173

Livingston (note 169), 195, footnote 5.

174

Karl R. Popper, Self-Reference and Meaning in Ordinary Language, Mind 63 (250) (1954), 162,

164. 175 176

Ibid., 168, illustrating his view with Goldbach’s conjecture.

Ibid., 168, stating that exclusion of self-reference in ‘formalised languages’ “would exclude some very interesting uses of self-reference, especially Goedel’s method of constructing self-referring statements”.

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2. Performative Conduct and the Creation of International Law Performative character is predicated of conduct the consequence177 of which consists of its own performance.178 This concept is well established in the fields of legal theory179 and linguistics and philosophy, generally.180 Performative acts have a constitutive, as opposed to ‘descriptive’ or ‘evaluative,’ character.181 Indeed, the concept of performativity is, according to Austin, to be distinguished from ‘constative’ speech acts, which do not create a situation, but merely describe it.182 As a corollary of their constitutive character, performative acts have no value of truth, and, therefore, are neither true nor false.183 The category of performative legal conduct184 provides a sound conceptual basis for the seemingly paradoxical fact that an act of creation of a rule is governed by the rule that is being created by the act of creation itself.185 The place of performativity has

177 See e.g. Charles De Bock, Israël, Été 2006: “Légitime Défense Disproportionnée” ou “Représailles”? Analyse d’un Glissement de Langage, Revue Québécoise de Droit International 20 (2) (2007), 41, 74. 178

It must be noted that performativity is not predicated unqualifiedly of any written legal instrument, see e.g. Peter Tiersma, Language of Legal Texts, in: Keith Brown (ed.), Encyclopedia of Language and Linguistics, vol. 6 (2nd ed. 2006), 549, 549. Also, it is not predicated unqualifiedly of any fact or ‘event,’ see e.g. Fleur Johns/Richard Joyce/Sundhya Pahuja, Introduction, in: id. (eds.), Events: The Force of International Law (2011), 1, 5. 179

For instance, according to Tamanaha, law plays a ‘performative’ role, in general, see Brian Tamanaha, Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law (1997), 109, discussed by William Twining, General Jurisprudence: Understanding Law from a Global Perspective (2009), 98, footnote 53. 180

See generally John R. Searle, How Performatives Work, Linguistics and Philosophy 12 (5) (1989), 535, 535. 181 John L. Austin, Philosophical Papers (3rd ed. by James O Urmson/Geoffrey J. Warnock 1979), 235–236. 182

John L. Austin, How to Do Things with Words (1979), 139.

183

Austin (note 181), 237.

184

Cf. Judith Butler, Bodies That Matter (1993), 12, characterising performativity as being “always a reiteration of a norm or set of norms,” Philipose (note 130), 56, citing Butler. 185 Note that performativity is not predicated of interpretation, nor is it claimed that performativity of interpretation of rules of international law, if any, is creative of that law. Contra, Venzke (note 7), 10, concerning the “shift towards interpreters,” away from sources of law, resulting from “the performative act of interpretation”.

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been discussed in literature in relation to, inter alia, the international community,186 sovereignty,187 legal personality of “internationalised territories,”188 certain acts of participants in armed conflicts,189 treaties establishing tribunals,190 and requests by governments for intervention of international organisations.191 Performative legal conduct serves as a means of establishing a legal order without having recourse to an external source, provided that the rule which is created by the performative act is self-reflective. Indeed, as posited by Derrida, only a performative act is capable of founding a legal order,192 for, most notably, it serves as a self-reflective foundation, even retroactively,193 of international law194 and its sources of law.195 As

186 David Campbell, Violent Performances: Identity, Sovereignty, Responsibility, in: Yosef Lapid/Friedrich Kratochwil (eds.), The Return of Culture and Identity in International Relations Theory (1996), 163, 178; Philipose (note 130), 60, citing Campbell. 187

Philipose (note 130), 11 and 60.

188

Bernhard Knoll, The Legal Status of Territories Subject to Administration by International Organisations (2008, reprinted 2011), 139. 189

Cedric Ryngaert/Anneleen Van de Meulebroucke, Enhancing and Enforcing Compliance with International Humanitarian Law by Non-State Armed Groups: An Inquiry into some Mechanisms, Journal of Conflict & Security Law 16 (3) (2011), 443, 444. 190 Sara Kendall, Contested Jurisdictions: Legitimacy and Governance at the Special Court for Sierra Leone, PhD Thesis, University of California, Berkeley (2009), 41; see, nevertheless, Eric David, Preamble, in: Paul De Hert et al. (eds.), Code of International Criminal Law and Procedure, annotated (2013), 7, 8, para. 7, negating the performative character of the first three paragraphs of the Preamble to the Rome Statute. 191

Kendall (note 190), 57.

192

Jacques Derrida, Force de Loi: Le “Fondement Mystique de l’Autorité” (1994), 94, characterising the performative, foundational act as a ‘coup de force’. 193 Id., Autobiographies: L’Enseignement de Nietzsche et la Politique du Nom Propre (1984), 21–22. See also Jacques Derrida/Geoffrey Bennington, Jacques Derrida (1993), 246. 194

Derrida’s claim has been extended by other writers to the foundation of international law, Bertram Keller, Liquefied Sanctity: Grotius and the Promise of Global Law, in: Olaf Asbach/Peter Schröder (eds.), War, the State, and International Law in Seventeenth-Century Europe (2010), 131, 151. 195

Performativity, inter alia, would not require to distinguish between existence and validity in order to solve the “chronological paradox” which is avoided by retroactivity. Contra David Lefkowitz, The Sources of International Law: Some Philosophical Reflexions, in: Besson/Tasioulas (eds.) (note 29), 187, 202. As for specific conditions for existence of sources of law, no paradox would arise. Indeed, opinio iuris, which remains to be necessary, may be performative, all the more at the formative stage of custom, during which it is exclusively acceptance as law, rather than belief in a long-standing rule. Cf., inter alia, Maurice Mendelson, The Formation of Customary International Law, RCADI 272 (1998), 155, 283;

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Campbell expressed it, performativity provides “foundations that are ultimately unfounded.”196

V. The Possibility of Rules of International Law Governing Conditions for Existence of Sources of Law in International Law and Some Major Implications The demonstration of the possibility of rules of international law governing conditions for existence of sources of law in international law greatly advances the scholarly treatment of other prominent unsettled controversies in the field of sources of law in international law.

A. Self-Reflectivity, Performativity, and the Unsoundness of the Prevailing Position

The suitability of self-reflectivity and performativity as conceptual grounds for the claim that a rule of international law whereby sources S1, S2, and S3 are sources of law in international law can be created through S1, S2, or S3 has three main implications. First, generally, it implies, as demonstrated above, that questions concerning the sources of law in international law are of law, not merely of fact, legal philosophy, theory, or doctrine, and, thus, that international law can be claimed to be complete with regard to its very foundation.197 Secondly, it implies that ‘logical necessity,’ at the core of the variety of strands within the prevailing position, is unsound and based on a fallacy.198 This implication is, in turn, twofold.

Robert Kolb, Selected Problems in the Theory of Customary International Law, Netherlands International Law Review 50 (2) (2003), 119, 139, affirming that paradox is avoided by not requiring “strictly legal belief” as a “necessary condition”. 196

Campbell (note 186), 178, referring to the foundation of sovereignty.

197

Supra, II.2.

198

Supra, III.

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As for the ‘logical’ strand, self-reflectivity clearly provides a conceptual ground for avoiding infinite regress. As for the ‘constitutional’ strand, self-reflectivity would provide an explanation for the character of the Grundnorm not as presupposed but rather as self-constituting, by governing its own creation.199 Lastly, if so-called ‘social practice’ were understood as conduct constituting practice leading to the formation of a self-reflective rule,200 it would not be necessary to characterise such practice and rule as merely factual and extra-legal.201 Furthermore, if it were accepted that such ‘constitutional’ norms, if any,202 are selfreflective, it would be possible to solve a second conundrum faced by this strand of scholarship, namely the issue of the means of modification or abrogation of the constitutional norm. While ‘constitutional’ norms governing the sources would necessarily be the outcome of a formless process, according to Verdross203 and Simma,204 or even ‘extra-legal’ postulates, according to Thirlway,205 such norms or postulates would be, as posited most prominently by Thirlway and Danilenko,206 only amenable to modification through norms deriving from a particular source, namely custom, an ‘infra199

In this sense, if the Grundnorm is conceived of as self-reflective, it would be a source ‘in a wider sense,’ as defined by Kelsen (note 85). 200 It cannot be assumed that the conduct of legal professionals is attributable to, and thus a form of practice of, subjects of law, as much as the fact that the treatment of a field is unsettled in the literature cannot prevent conduct attributable to subjects of law in the relevant field to form practice and, eventually, become custom governing the field in question. 201 d’Aspremont (note 9), 216, in connection with his view that “the existence of the (international) legal system boils down to a mere question of fact” (emphasis in the original). 202

See generally Jan Klabbers/Anne Peters/Geir Ulfstein, The Constitutionalization of International Law (2009). 203 Verdross (note 86), stating that “the community’s original norms resulted neither from a formal international agreement nor from custom, but from an informal consensus among rulers at that time by which they recognized certain principles as legally binding”. 204

Alfred Verdross/Bruno Simma, Universelles Völkerrecht (1976), 161, cited by Thomas Kleinlein, Alfred Verdross as a Founding Father of International Constitutionalism?, Goettingen Journal of International Law 4 (2) (2012), 385, 405. 205 206

Thirlway (note 89).

Danilenko (note 28), 191, stating that Thirlway’s proposition to the effect that “any new source must be ‘the product of the law emanating from the sources which are mentioned in that list,’ [namely Art. 38 (1) ICJ Statute] is correct.” In particular, it is contradictory to state, on the one hand, that “the consensus legitimating new sources must necessarily partake of the nature of a legal rule,” but to hold, on the other hand, that the prohibition for States to “disregard those procedures prescribed by existing law” can be discarded “[u]ntil a new community consensus on new procedures for law-making is established”.

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constitutional’ source. Hence, if the norm can govern its own creation, its source being performative, it would be conceivable that it can take the form of one of the sources it governs, including, most prominently, customary law.207 Thirdly, and more importantly, self-reflectivity and performativity allow to make legal sense of existing practice and to lend support to the claim, beyond merely asserting it, of prima facie existence of customary rules governing the conditions for existence of sources of law in international law.

B. The Prima Facie Existence of Customary Rules of International Law Setting Out the Conditions for Existence of the Existing Sources of Law in International Law

The existence of rules of international law proper in the matter at issue has been asserted by some writers. They further affirm that such norms can take the form of rules of international law, created through the existing sources of international law.208 In this latter connection, they claim that such rules would be customary and that Article 38 (1) ICJ Statute would be a “codification,”209 as pointed out by Lauterpacht,210

207

There being no prohibition as to the content of relevant practice and its acceptance as law, supra, IV.A.3. 208 This is accepted even by scholars making ‘constitutional’ claims, cf., inter alia, Danilenko (note 28), 29, stating that the “existing situation in which [Art. 38 ICJ Statute] provisions are generally regarded as an authoritative enumeration of the legitimate sources of international law” could only be explained from the standpoint that “in reality there is no contradiction if rules about sources themselves would emerge and find legitimate forms of expression in the framework of the available law-making processes”. 209 210

See inter alia, Lepard (note 125), 100.

ILC, Survey of International Law in Relation to the Work of Codification of the International Law Commission, UN Doc. A/CN.4/1/Rev.1 (1949), 22, para. 33, in which Lauterpacht, in his capacity as Special Rapporteur, stated, in relation to the topic “Sources of International Law,” that “[t]he codification of this aspect of international law has been successfully accomplished by the definition of the sources of international law as given in Article 38 of the Statute of the International Court of Justice”.

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or “declaratory” of such customary rules, as claimed by Abi-Saab211 and Cheng,212 amongst others.213 The claim that such rules of international law proper, and not of a separate normative, yet extra-legal, category, do in fact exist and that the source of those rules would be custom has several implications. In particular, the fact that one of the conditions for existence of custom is practice in support of the rule makes this claim very compelling. The character of custom as the only source of international law with a potential for creating truly universal rules214 makes the ‘customary’ claim the most cogent in this fundamental aspect. The cogency of the ‘customary’ claim is enhanced by the fact that, if it were not for the fallacious proposition that rules on the matter cannot exist, the views to the effect that Article 38 (1) ICJ Statute is consistent with “State practice,” as plainly put by Jennings and Watts, and, as Woods, in his capacity as ILC Special Rapporteur, has most recently expressed, that rules can be inferred from the manner in which “States and courts set about the task of identifying the law,”215 would evidently lead to the affirmation of the existence of customary rules on the matter at issue.216

211

Abi-Saab (note 44), 191.

212

Cheng (note 129), 22.

213

See inter alia, Guido Acquaviva/Alex Whiting, International Criminal Law: Cases and Commentary (2011), 21. 214 This is acknowledged by ‘constitutional’ scholars, see inter alia, Danilenko (note 28), 135–136, stating: “To establish universally applicable rules, states still have to rely on custom, which has retained its role as a modern method of law-making operating alongside treaties”. 215

ILC (note 1), 17, para. 38, stating, in relation to “public international law,” that “rules for identifying the sources of the law […] can be found for present purposes by examining in particular how States and courts set about the task of identifying the law.” Note, nevertheless, that this manner in which States and their internal judicial organs “set about the task” in question is not expressly characterised as practice. 216

See inter alia, for the view of authors supporting the ‘logical’ strand of the predominant argument, Jennings/Watts (note 3), 45, para. 16; for those adopting the ‘constitutional’ strand thereof, Danilenko (note 28), 33–34, stating: “the subsequent practice of states and of the I.C.J. has created political-legal grounds for a broader interpretation of the significance and effect of Art. 38. It was clear from the beginning that each of the listed categories was the result of the operation of a particular source. A strong tendency has emerged to regard Art. 38 as the definition of the formal sources of international law”.

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The customary claim would fully give expression to the statement of the editors of Oppenheim’s217 to the effect that [t]he activities associated with international organizations can be fitted into the traditional categories for the sources of international law, either as being attributable to treaties (since the constituent instrument of an international organization is a treaty) or as part of customary international law,218

which has been accepted by some other writers219 and is borne out by, inter alia, recent instances of judicial decisions referring to Article 38 (1)(b) ICJ Statute.220 To conclude, the cogency and prima facie consistency of the customary claim with relevant practice would allow to demonstrate that the existing sources of law in international law, in accordance with an appropriate conceptual framework, clearly provide the necessary and sufficient means for the creation and identification of principles and rules of international law proper. Their parsimony would be, indeed, the best proof of their appropriateness and desirability.

217 In addition to its relevance to claims advanced in other bodies of scholarship, see Danilenko (note 28). 218

Jennings/Watts (note 3), 46, para. 16.

219

Including those apparently claiming the existence of new sources, see e.g. Bardo Fassbender, Targeted Sanctions and Due Process, Study commissioned by the United Nations Office of Legal Affairs (2006), 6, para. 2, available at: http://www.un.org/law/counsel/Fassbender_study.pdf (accessed on 26 November 2014), referring to the “the established system of sources of international law” as composed of “international treaties (including the UN Charter as the constitution of the United Nations), customary international law, or general principles of law recognized by the members of the international community.” This is despite his aforementioned claims, supra, II.C. 220

See, inter alia, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change (C-366/10) [2012] 2 CMLR 4, 116, para. 115, holding that “[a]s is apparent from, inter alia, Art. 38(1)(b) of the Statute of the International Court of Justice, customary international law is one of the generally recognised sources of international law” and that “[f]or this to exist there must be a settled practice on the part of the particular subjects of international law (consuetudo; objective element), which is recognised as a rule of law (opinio juris sive necessitatis; subjective element)”.

Third States and the Jurisdiction of the International Court of Justice: The Monetary Gold Principle TOBIAS THIENEL(

ABSTRACT: The Monetary Gold principle is widely recognised as preventing the International Court of Justice from deciding a case between two parties where the legal interests of a third State take centre stage. The principle takes its name and much of its authority from the 1954 judgment in the Monetary Gold case. It has received judicial attention in important subsequent cases, and together with those later cases, it has received a great deal of academic attention. Even so, the precise doctrinal basis of the principle remains somewhat unsettled. Moreover, there remains some uncertainty as to when the Monetary Gold principle applies and even as to whether it is actually correct. This article seeks to explore the underlying logic of the Monetary Gold principle, and against that background to explain how the principle applies. The material reach of res judicata is exposed as a decisive criterion in delineating the application of the Monetary Gold principle. KEYWORDS: International Court of Justice, Jurisdiction, Admissibility, Procedure, Third States, Res Judicata, Intervention

I. Introduction The year 2014 marks not only the centenary of the Walther Schücking Institute for International Law, where this Yearbook is edited, but also the 60th anniversary of the judgment of the International Court of Justice (ICJ) in the Case of the Monetary

( Lawyer (Rechtsanwalt) with WEISSLEDER EWER, Kiel. This article is based on my doctoral thesis entitled Drittstaaten und die Jurisdiktion des Internationalen Gerichtshofs, Die Monetary GoldDoktrin, currently being published with Duncker & Humblot, Berlin. I am indebted to my supervisor, Professor Andreas Zimmermann, as well as to the second examiner, Professor Kerstin Odendahl. I am also indebted to Nicki Boldt and Björn Elberling for many discussions.

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Gold Removed from Rome in 1943.1 That case today stands as the fons et origo of the principle of the ‘indispensable third party,’2 which indeed is also known as the Monetary Gold principle3 on the strength of that precedent. Under this principle, the ICJ is prevented from deciding a case between two parties amenable to its jurisdiction on the merits if the legal interests of a third State would not only be affected by a merits judgment, but would form “the very subject-matter” of the case.4 The Monetary Gold case itself has not passed sub silentio in the case law of the ICJ. The case has received judicial attention in the Nicaragua case, the Nauru case, and the East Timor case,5 to name but a few instances. An international arbitral tribunal has also expressly followed the Monetary Gold precedent.6 As would be expected, the case has also attracted a great deal of scholarly comment.7

1 International Court of Justice (ICJ), Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom, and United States of America), Judgment of 15 June 1954, ICJ Reports 1954, 19. 2 Cf. id., Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment of 26 June 1992, Dissenting Opinion of Judge Schwebel, ICJ Reports 1992, 329, 330; Christian Tomuschat, Article 36, in: Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed. 2012), 633, MN 21. 3 Permanent Court of Arbitration (PCA), Larsen v. Kingdom of Hawaii, Arbitral Award of 5 February 2001, ILR 119, 566, 588 et seq.; Bola A. Ajibola, The International Court of Justice and Absent Third States, African Yearbook of International Law 4 (1996), 85, 89; Christian J. Tams/Andreas Zimmermann, “[T]he Federation Shall Accede to Agreements Providing for General, Comprehensive and Compulsory International Arbitration”: The German Optional Clause Declaration of 1 May 2008, German Yearbook of International Law (GYIL) 51 (2008), 391, 414. 4

ICJ, Monetary Gold (note 1), 32.

5

Id., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1986, 392, 431; id., Nauru (note 2), Judgment, 259 et seq.; id., East Timor (Portugal v. Australia), Preliminary Objections, Judgment of 30 June 1995, ICJ Reports 1995, 90, 100 et seq. 6 7

PCA, Larsen (note 3), 591 et seq.

See, e.g., Ajibola (note 3), passim; Emmanuelle Jouannet, Le principe de l’Or monétaire à propos de l’arrêt de la Cour du 30 juin 1995 dans l’affaire du Timor oriental (Portugal c. Australie), Revue Générale de Droit International Public (RGDIP) 100 (1996), 673; Andreas Zimmermann, Die Zuständigkeit des Internationalen Gerichtshofes zur Entscheidung über Ansprüche gegen am Verfahren nicht beteiligte Staaten: Anmerkungen aus Anlaß der Entscheidung des IGH im Streitfall zwischen Portugal und Australien betreffend Ost-Timor, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 55 (1995), 1051.

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Even so, there remains some uncertainty over whether the principle of the ‘indispensable third party,’ as ostensibly derived from Monetary Gold and its progeny, is actually correct.8 There is even more uncertainty as to the application of the principle, so much so that scholars have spoken of “the Court’s rather unpredictable application of the Monetary Gold principle.”9 This is all the more regrettable because the Monetary Gold principle has a potential of becoming ever more relevant as multilateral relationships increase and intensify in modern international law.10 This being so, this article will seek to contribute to the discussion by examining the underlying logic of the Monetary Gold principle and developing the cornerstones of the principle against that background. Given that the discussion of the Monetary Gold principle has not only started with the Monetary Gold case itself, but has also revolved primarily around the case and subsequent cases applying it, it is necessary first to set out the cases representing the major steps in the case law.

II. The Key Cases Any discussion must start with Monetary Gold. The next major step was the Nauru case, followed by a very notable application of the Monetary Gold principle in East Timor.

8 See in particular the criticism by Alexander Orakhelashvili, The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: from Monetary Gold to East Timor and Beyond, Journal of International Dispute Settlement (JIDS) 2 (2011), 373. See also Martins Paparinskis, Procedural Aspects of Shared Responsibility in the International Court of Justice, JIDS 4 (2013), 295, 313 et seq., suggesting ways of reading down the Monetary Gold case. 9

Tams/Zimmermann (note 3), 414; see also Samantha Besson, La pluralité d’Etats responsables: Vers une solidarité internationale?, Schweizerische Zeitschrift für Internationales und Europäisches Recht 17 (2007), 13, 27 (“[l]a CIJ a interprété ce principe de manière plus ou moins stricte selon les affaires”); James Crawford, State Responsibility: The General Part (2013), 657, 660; André Nollkaemper, Introduction: Procedural Issues of Shared Responsibility in International Adjudication, JIDS 4 (2013), 277, 289. 10 See Lori Fisler Damrosch, Multilateral Disputes, in: ead. (ed.), The International Court of Justice at a Crossroads (1987), 376, 376: “As interstate relationships become more complex, it is increasingly unlikely that any particular dispute will be strictly bilateral in character.” See also Robert Kolb, The International Court of Justice (2013), 565, 570.

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The facts of the Monetary Gold case were quite complex. A brief summary will suffice.11 In the aftermath of World War II, the Allies found considerable quantities of gold in Germany which had been looted from occupied territories. The Western Allies established a legal regime under which States from which gold had been looted could register their claims and receive some restitution from a ‘pool’ containing the gold that had been found.12 In this context, a dispute arose as to a quantity of gold belonging to the national bank of Albania that had been taken from a building in Rome in 1943. The question whether the claim in restitution relating to this gold belonged to Albania or to Italy, citizens of which had held a majority of shares in the Albanian national bank, was referred by the Allies to an arbitrator.13 He held that the claim belonged to Albania.14 The Allies had further provided15 that, if this should turn out to be the case, the gold that Albania could claim in restitution should be transferred to the United Kingdom in partial satisfaction of Albania’s debt to the United Kingdom from the Corfu Channel case.16 Albania would then be entitled to bring a case to the ICJ against the Western Allies to oppose this transfer. Albania did not avail itself of this opportunity. But Italy was also entitled to oppose the transfer to the United Kingdom by means of an application to the ICJ. It was entitled to argue that the gold belonged to it because it had a claim against Albania for the 11

For more details, see the Italian Application instituting proceedings in the Case of the Monetary Gold Removed from Rome in 1943, ICJ Pleadings, 8 et seq., as well as the oral argument of Sir Gerald Fitzmaurice for the United Kingdom, ibid., 124 et seq.; David H. N. Johnson, The Case of the Monetary Gold Removed from Rome in 1943, International and Comparative Law Quarterly (ICLQ) 4 (1955), 93, 96 et seq.; Covey T. Oliver, The Monetary Gold Decision in Perspective, American Journal of International Law (AJIL) 49 (1955), 216, 217 et seq. 12 Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, Part III, 14 January 1946, UNTS 555, 69, 99. 13 Agreement between the Government of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America for the Submission to an Arbitrator of Certain Claims with Respect to Gold Looted by the Germans from Rome in 1943, 25 April 1951, France, United Kingdom, United States of America, UNTS 91, 21. 14 Affaire relative à l’or de la Banque nationale d’Albanie (United States of America, France, Italy, United Kingdom), Arbitral Award of 20 February 1953, Reports of International Arbitral Awards (RIAA) XII, 13. 15 Statement to Accompany Publication of the Agreement between the Governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America for the Submission to an Arbitrator of Certain Claims with Respect to Gold Looted by the Germans from Rome in 1943, United Kingdom Treaty Series 39 (1951) (Command Paper 8242), 8 et seq. 16

See ICJ, Corfu Channel (United Kingdom v. Albania), Assessment of the Amount of Compensation, Judgment of 15 December 1949, ICJ Reports 1949, 244, 250.

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expropriation of its citizens’ interests in the national bank of Albania after the war. Italy made the application but, having been compelled to make it to prevent the transfer to the United Kingdom,17 promptly brought a preliminary objection against the jurisdiction of the ICJ. Italy argued that the ICJ could not decide on its claim to the gold because in order to do so the Court would have had to say that Albania had committed a wrongful act against Italy, which could not be done without the consent and in the absence of Albania. This submission was upheld by the ICJ. The Court’s reasoning is encapsulated in this relatively short passage from the judgment: In order, therefore, to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy, and whether she is under an obligation to pay compensation to her; and, if so, to determine also the amount of compensation. […] In the determination of these questions – questions which relate to the lawful or unlawful character of certain actions of Albania vis-à-vis Italy – only two States, Italy and Albania, are directly interested. To go into the merits of such questions would be to decide a dispute between Italy and Albania. The Court cannot decide such a dispute without the consent of Albania. […] To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent. […] Albania’s legal interests would not only be affected by a decision, but would form the very subjectmatter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.18

In the Nicaragua case in 1984, the Court said that “the circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction.”19 The Court then returned to its Monetary Gold precedent in more detail in the Nauru case in 1992. This case concerned a claim by the Republic of Nauru against Australia for the exploitation of phosphate lands in Nauru. Such exploitation had been carried out while Nauru had been a non-selfgoverning territory and governed by Australia, New Zealand, and the United King-

17

On this reason for Italy to object to its own application, see Helmut Philipp Aust, Complicity and the Law of State Responsibility (2011), 299; Oliver (note 11), 219 et seq. 18

ICJ, Monetary Gold (note 1), 32.

19

Id., Nicaragua (note 5), Jurisdiction, 431.

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dom as ‘joint’ mandatories.20 Any actions carried out by the mandatory authorities in Nauru were therefore at all times attributable to all three States, separately and in parallel.21 Australia therefore argued that any judgment on its responsibility for the exercise of the mandate would automatically imply that New Zealand and the United Kingdom had incurred the same responsibility. This, it argued, would implicate the two absent States in such a way as to engage the Monetary Gold principle. The Court disagreed. It held: In the present case, the interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru’s Application and the situation is in that respect different from that with which the Court had to deal in the Monetary Gold case. In the latter case, the determination of Albania’s responsibility was a prerequisite for a decision to be taken on Italy’s claims. In the present case, the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru’s claim. Australia, moreover, recognizes that in this case there would not be a determination of the possible responsibility of New Zealand and the United Kingdom previous to the determination of Australia’s responsibility. It nonetheless asserts that there would be a simultaneous determination of the responsibility of all three States and argues that, so far as concerns New Zealand and the United Kingdom, such a determination would be equally precluded by the fundamental reasons underlying the Monetary Gold decision. The Court cannot accept this contention. In the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical […]. In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia.22

This meant that Australia’s Monetary Gold argument failed, at least as far as the ability of the Court to decide on Australia’s responsibility was concerned.23 The 20 See Art. 2 Trusteeship Agreement for the Territory of Nauru, 1 November 1947, Australia, New Zealand, United Kingdom, UNTS 10, 3. 21 See ICJ, Nauru (note 2), Separate Opinion of Judge Shahabuddeen, 270, 284; Nollkaemper (note 9), 281; Paparinskis (note 8), 311; Stefan Talmon, A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq, in: Phil Shiner/Andrew Williams (eds.), The Iraq War and International Law (2008), 185, 199, 201. 22 23

ICJ, Nauru (note 2), Judgment, 261 et seq. (all italics in the original).

The Court left open whether the assessment of the quantum of damages owed by Australia might sufficiently implicate the two absent States (ibid., 262). This question was eventually never decided

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responsibility of New Zealand and the United Kingdom would have existed in parallel to that of Australia and would not have been a prerequisite for the decision of the Court as between Nauru and Australia. It should be noted that the Court’s judgment in Nauru stands for a strict rule whereby the Monetary Gold principle only precludes the Court from deciding a case on the merits if a third State’s legal interests are engaged by a necessary incidental question of the case between the actual parties. It is also worth noting, however, that the Court has not developed this gloss on Monetary Gold from any first principles, but has derived it simply from the two facts that (a) such had been the circumstances in the Monetary Gold case itself, and (b) those circumstances had been said in Nicaragua to probably represent the limit of the Court’s power to decline to decide a case on the grounds of third States’ interests. After the judgment in Nauru, there therefore remained a dearth of substantive reasoning in relation to the Monetary Gold principle, beyond the somewhat bare language of the Monetary Gold judgment. However, the Nauru gloss on the Monetary Gold principle, regarding the requirement of a necessary incidental question involving the third State, continues to have the support of the Court.24 Following Nauru, the Monetary Gold principle again came to the fore in the East Timor case decided in 1995. In this case, Portugal brought a claim against Australia, arguing that Australia had violated Portugal’s rights as the mandatory of East Timor, as well as the principle of the self-determination of peoples as an obligation erga omnes, by entering into a treaty concerning East Timor with Indonesia, which had invaded and annexed the territory in 1975 and 1976, respectively. This time, Australia’s Monetary Gold argument was successful. The Court held:

because Nauru and Australia arrived at a settlement and discontinued the case. New Zealand and the United Kingdom participated financially in the settlement (see Serena Forlati, “Interesse di natura giuridica” ed effetti per gli Stati terzi delle sentenze della Corte internazionale de Giustizia, Rivista di Diritto Internazionale 85 (2002), 99, 121 et seq.). 24

See, e.g., ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports 2007, 659, 756; id., Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, 150 et seq.; id., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015, para. 116, available at: http:// www.icj-cij.org/docket/files/118/18422.pdf (accessed on 6 March 2015).

328 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 Australia’s behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court’s decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have entered into treaties on behalf of East Timor […]. The Court could not make such a determination in the absence of the consent of Indonesia.25

The Court further explained, having set out its Nauru precedent: However, in this case, the effects of the judgment requested by Portugal would amount to a determination that Indonesia’s entry into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in matters relating to the continental shelf resources of East Timor. Indonesia’s rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State’s consent. Such a judgment would run directly counter to the ‘well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.’26

The Court thus declined to exercise its jurisdiction, basing itself squarely on the Monetary Gold principle, as explained in Nauru. This was the first time since the Monetary Gold case that a (whole)27 case was dismissed because of the involvement of third State interests. The judgment in East Timor has therefore demonstrated the vitality of the Monetary Gold principle. More worryingly, it has also highlighted the potential of that principle to thwart the possibility of a trilateral dispute being settled by the ICJ only between an injured State and a State that is not the most directly responsible State.28 25

Id., East Timor (note 5), 102.

26

Ibid., 105.

27

But note that the Monetary Gold principle has limited the Court to decisions infra petita in some maritime delimitation cases (see infra, V.). See also ICJ, Jurisdictional Immunities (note 24), 150 et seq., where Monetary Gold precluded a line of argument (which was unnecessary anyway). 28 See also the text at note 10. The East Timor judgment has been criticised on the basis that it had more generally thwarted the judicial assertion of obligations erga omnes, see ICJ, East Timor (note 5), Dissenting Opinion of Judge Weeramantry, 129, 172; Dissenting Opinion of Judge Skubiszewski, 224, 248; Constantine Antonopoulos, Effectiveness v. The Rule of Law Following the East Timor Case, Netherlands Yearbook of International Law 27 (1996), 75, 92 et seq.; Peter D. Coffman, Obligations Erga Omnes and the Absent Third State, GYIL 39 (1996), 285, 309 et seq. This is not accurate. The effect of the judgment is only that a case should be brought against the principal to a wrongful act and not against a third party whose responsibility is derivative of, i.e. depends on, that of the principal, Christian J. Tams, Enforcing Obligations Erga Omnes in International Law (2005), 184; see also Aust (note 17), 307;

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III. The Foundations of the Monetary Gold Principle Curiously, the exact doctrinal basis of the Monetary Gold principle remains somewhat unsettled, despite the judicial and academic attention lavished upon the Monetary Gold case and its progeny. The ICJ itself has been fairly brief, and not entirely consistent, in its basic reasoning on the principle. It has held in the Monetary Gold case itself that adjudication on the merits would in the circumstances “run counter to” the principle that “the Court can only exercise jurisdiction over a State with its consent.”29 This suggests that the principle of the ‘indispensable third party’ is a matter of the jurisdiction of the Court, in the sense that the Court in the Monetary Gold (and Nauru) scenario lacks jurisdiction over the third State whose legal interests are involved. This view tends to be confirmed by the Court’s language in East Timor, where the Court said, adding slightly to the form of words from Monetary Gold, that adjudication there “would run directly counter to” the principle of consensual jurisdiction.30 Taking the Court at its word, this strongly appears to mean that adjudication in the Monetary Gold scenario would constitute an exercise of jurisdiction over the indispensable third party which is not covered by that party’s consent. This view also enjoys some support in individual judicial statements and in the literature, if usually only in the brief statement that the Monetary Gold principle involves a lack of jurisdiction.31 Gleider I. Hernández, A Reluctant Guardian: The International Court of Justice and the Concept of ‘International Community,’ British Yearbook of International Law (BYIL) 83 (2012), 13, 48. The problem in East Timor therefore was the content of the norms invoked, not their effect erga omnes. 29 ICJ, Monetary Gold (note 1), 32. The Court has also said that it had been asked to decide a “dispute between Italy and Albania” (ibid.). This could be taken to mean that there was no dispute between Italy and the respondent States. However, such reasoning was rightly dismissed by the Court in East Timor (note 5), 100. 30

Id., East Timor (note 5), 105 (emphasis added). Just prior to this statement, the Court had said that “the effects” of a merits judgment would “amount to” a determination as to Indonesia’s conduct. This language may suggest a less direct interference with the principle of consensual jurisdiction. 31 See, e.g., ibid., Dissenting Opinion of Judge Skubiszewski, 224, 237; Chittharanjan Felix Amerasinghe, Jurisdiction of International Tribunals (2003), 236; Antonopoulos (note 28), 82; Chester Brown, Article 59, in: Zimmermann et al. (eds.) (note 2), 1416, MN 69; Christine Chinkin, Third Parties in International Law (1993), 200; C. Wilfred Jenks, The Prospects of International Adjudication (1964), 703; Sir Hersch Lauterpacht, The Development of International Law by the International Court (2nd ed. 1958), 343; John Graham Merrills, International Dispute Settlement (5th ed. 2011), 122 et seq.

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However, the East Timor judgment only concluded that the Court could not “exercise the jurisdiction conferred upon it by […] the Parties.”32 This implied that the Court had jurisdiction, but that the case could not be decided on the merits on other grounds.33 Indeed, a Chamber of the Court made this distinction and ostensibly regarded the Monetary Gold principle as an example of the Court having to refuse to exercise its existing jurisdiction on the grounds of the protection of its judicial character.34 This view, too, is vouchsafed by a considerable body of judicial and academic opinion.35

A. The Monetary Gold Principle as Directly an Issue of Jurisdiction?

The theory that the Monetary Gold principle is directly a matter of the lack of jurisdiction (ratione personae) critically rests on the assumption that the Court exercises jurisdiction over a State in passing comment, incidentally in a case between other States, on its affairs.36 This assumption may seem counterintuitive at first sight, 32 ICJ, East Timor (note 5), 106. See also id., Monetary Gold (note 1), 34: “the jurisdiction conferred upon it by the common agreement of [the parties] does not, in the absence of the consent of Albania, authorize [the Court] to adjudicate”. 33

See Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. II (1986), 447; Shabtai Rosenne, The Law and Practice of the International Court of Justice, vol. II (3rd ed. 2006), 524; Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960– 1989 (Part Nine), BYIL 69 (1998), 1, 38, 51 et seq. However, the language in Monetary Gold quoted in the preceding footnote may have been intended to refer simply to the extent of (personal) jurisdiction (cf. ICJ, Monetary Gold (note 1), 31) and not to any considerations other than jurisdiction. 34 ICJ, Frontier Dispute (Burkina Faso/Mali), Judgment of 22 December 1986, ICJ Reports 1986, 554, 577, 579. 35

Id., Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963, Separate Opinion of Sir Gerald Fitzmaurice, ICJ Reports 1963, 97, 102; Fitzmaurice (note 33), 448, 457, footnote 1; Forlati (note 23), 109, footnote 40; Kolb (note 10), 569 et seq.; Paolo Palchetti, Opening the International Court of Justice to Third States: Intervention and Beyond, Max Planck United Nations Yearbook 6 (2002), 139, 150 et seq.; Rosenne (note 33), 543 (but see also 539, and id., The Law and Practice of the International Court of Justice, vol. III (3rd ed. 2006), 1595, referring to a lack of jurisdiction); Thirlway (note 33), 52. 36 Orakhelashvili (note 8), 380 et seq., and Paparinskis (note 8), 314 et seq., argue that the Monetary Gold case involved more than only incidental comments about Albania, namely actual legal effects in relation to Albania’s claim to the gold. That question is immaterial for present purposes, as we are here concerned with the principle as it appears in the broader discussion and not with the case as such. The principle is now undoubtedly about incidental findings on the affairs of a third State (So was the reasoning in the Monetary Gold case. Moreover, Albania did not in fact stand to lose its claim through

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considering that (personal) jurisdiction is usually defined as the power of the Court to decide a case with final and binding effect in relation to a State.37 However, in the ordinary case where the issue of jurisdiction arises only as between the two (or sometimes more) parties to a case, a judgment denying the Court’s jurisdiction removes not only the Court’s power to issue a binding and final judgment, but also the Court’s power to deal with the case at all and arrive at any conclusions in law with respect to the parties.38 It should not necessarily be expected, therefore, that an answer to the question whether incidental comments about a third State can constitute an exercise of jurisdiction can readily be found in the learning regarding the meaning of jurisdiction in the bilateral context of the actual parties. Even so, the jurisdictional regime of the ICJ Statute39 can and must still provide the answer. In this respect, it may be recalled that the non ultra petita (or nemo eat judex ultra petita partium) rule, whereby the Court can only decide a case within the confines of the requests made by the parties,40 forms part of the jurisdictional regime of the Statute.41 It is, in particular, an aspect or a mere restatement of the requirement of jurisdiction in concreto, i.e. of the requirement of a request presenting a case for

a judgment on the merits of Italy’s case, but it had lost it due to the Western Allies’ act of self-help on behalf of the United Kingdom. The Court avoided all possible questions in this regard by referring to the impossibility of determining Italy’s claim against Albania). 37 Alexander Orakhelashvili, The Concept of International Judicial Jurisdiction: A Reappraisal, The Law & Practice of International Courts and Tribunals 2 (2003), 501, 503; id. (note 8), 389, 390; Rosenne (note 33), 524; Tomuschat (note 2), MN 7. The Court itself has even treated the res judicata of decisions as part of the definition of a judicial body: ICJ, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion of 13 July 1954, ICJ Reports 1954, 47, 53; id., Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment of 4 May 2011, ICJ Reports 2011, 420, 443. This implies that it is the creation of res judicata that constitutes the exercise of judicial jurisdiction. 38

See Thirlway (note 33), 52.

39

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute).

40

ICJ, Corfu Channel (note 16), 249; id., Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970, 3, 37; Robert Kolb, General Principles of Procedural Law, in: Zimmermann et al. (eds.) (note 2), 871, MN 33 et seq.; Rosenne (note 33), 577. 41

ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment of 6 November 2003, Separate Opinion of Judge Buergenthal, ICJ Reports 2003, 270, 273; Fitzmaurice (note 33), 524 et seq., 529; Kolb (note 40), MN 5, 37; Rosenne (note 33), 577 et seq.

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judicial decision.42 But the non ultra petita rule governs only the content of the final and binding decision, not the content of the Court’s reasoning43 – and not even the question whether the Court can deal with a legal question that may not have been inherent in the requests.44 This would suggest that the jurisdictional regime as a whole is only concerned with the creation of final and binding effect and not with a mere power to take cognisance and pass comment. Moreover, the principle of consensual jurisdiction is, of course, an immediate consequence of the structural principle of the sovereign freedom of States.45 What constitutes an exercise of jurisdiction therefore should be assessed against the background of the more general protection of that sovereign freedom. This general protection is most prominently achieved by the rule against intervention in the domestic affairs (domaine réservé) of a State.46 Indeed, the principle of non-intervention is an immediate logical consequence of the concept of sovereignty.47 It expresses the protection of sovereignty, in the sense that sovereignty is an objective quality, whereas the principle of non-intervention constitutes a prohibition and the corresponding right. This being so, it is worth noting that it is an “element of coercion [that] defines, and

42 See Markus Benzing, Das Beweisrecht vor internationalen Gerichten und Schiedsgerichten in zwischenstaatlichen Streitigkeiten (2010), 119 et seq.; Fitzmaurice (note 33), 524, 529. 43

Kolb (note 40), MN 40; Stefan Talmon, Article 43, in: Zimmermann et al. (eds.) (note 2), 1088, MN 31. 44

ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3, 18 et seq. The criticism of the Court in this regard in the Oil Platforms case related only to its having done this in the operative part of its judgment; see id., Oil Platforms (note 41), Separate Opinion of Judge Higgins, 225, 228 et seq.; Separate Opinion of Judge Buergenthal, 270, 272 et seq. 45

Permanent Court of International Justice (PCIJ), Status of Eastern Carelia, Advisory Opinion of 23 July 1923, Series B, No. 5, 27; Coffman (note 28), 311; Lauterpacht (note 31), 334; Rosenne (note 33), 549 et seq. 46 See as to that principle ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, 106 et seq. 47

See German Federal Constitutional Court (Bundesverfassungsgericht), 2 BvR 793/07, Order of 30 January 2008, reprinted in: Neue Zeitschrift für Verwaltungsrecht 27 (2008), 878, 879; Maziar Jamnejad/Sir Michael Wood, The Principle of Non-Intervention, Leiden Journal of International Law 22 (2009), 345, 346; Danilo Türk, Reflections on Human Rights, Sovereignty of States and the Principle of Non-Intervention, in: Morten Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (2003), 753, 758.

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indeed forms the very essence, of prohibited intervention.”48 But an international court can only coerce a State through the legal effect of its decision. Mere judicial comments on the affairs of a State, like mere comments by other States,49 therefore do not interfere with that State’s sovereign freedom. Accordingly, they should not figure in the jurisdictional regime protecting that sovereign freedom, either. For these reasons, the ICJ only exercises jurisdiction over a State by taking a decision that is final and binding (or in the case of provisional measures and procedural orders, only binding) on that State. In the Monetary Gold scenario, however, the third State at issue is not subject to the final and binding effect of a merits judgment. Under general principles, as well as under Articles 59 and 60 ICJ Statute and Article 94 (1) UN Charter,50 the res judicata and the binding effect of an ICJ judgment51 are strictly relative, i.e. limited to the actual parties.52 Any third State is completely protected from the legal effects of the decision.53 Accordingly, there can be no exercise of jurisdiction over a third State. Therefore, the Monetary Gold principle cannot be justified as a direct application of the principle whereby the exercise of international judicial jurisdiction over a State requires that State’s consent.54 It should perhaps be emphasised that this is not a circular argument. It is not argued that there is no exercise of jurisdiction over a third State, and therefore no 48

ICJ, Nicaragua (note 46), 108.

49

Andreas von Arnauld, Völkerrecht (2012), para. 355.

50

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

51

Most ICJ judgments impose obligations of compliance; all are res judicata (cf. PCIJ, Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory), Judgment of 16 December 1927, Series A, No. 13, 20). 52

Ibid., Dissenting Opinion by M. Anzilotti, 23 and 27. As to this effect of Art. 59 ICJ Statute, in particular, see ICJ, Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment of 26 May 1961, ICJ Reports 1961, 17, 27; id., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, ICJ Reports 2007, 43, 101. 53

Leonardo Nemer Caldeira Brant, L’autorité de la chose jugée en droit international public (2003), 86; Forlati (note 23), 112 et seq.; Johnson (note 11), 109; Jouannet (note 7), 689; ead., Quelques perspectives théoriques: Incertitudes sur le tiers et désordres de la justice internationale, in: Hélène Ruiz Fabri/Jean-Marc Sorel (eds.), Le tiers à l’instance devant les juridictions internationales (2005), 255, 260; Orakhelashvili (note 8), 391; Antonio F. Perez, The Passive Virtues and the World Court: Pro-Dialogic Abstention by the International Court of Justice, Michigan Journal of International Law 18 (1997), 399, 418; Thirlway (note 33), 51 et seq. 54

See Orakhelashvili (note 8), 389, 391; Thirlway (note 33), 52.

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(immediate) need for that State’s consent, because that State has not given its consent and therefore is not subject to the legal effects of the Court’s decision. Such a circular line of argument would arise only if the lack of res judicata and of binding effect of an ICJ judgment for a third State was exclusively the result of the lack of consent of that State. However, this is not the true position. It is certainly true that the res judicata and the binding effect of an ICJ judgment are traceable to the consent of the parties (combined with the general law of the Statute, Charter, and Rules of Court).55 But the relativity of res judicata and of the binding effect of an ICJ judgment is also, and more fundamentally, based on the relativity of the seisin,56 i.e. the legal relationship in procedural law underlying the decision (Prozessrechtsverhältnis). The seisin exists only as between the parties and the Court.57 Accordingly, so do the legal effects of anything done within this legal relationship. The relativity of the seisin, for its part, is not founded upon the limitations of the consent given,58 but fundamentally upon the limits of the instrument instituting the proceedings. The relativity of res judicata and of the binding effect of an ICJ judgment is therefore independent of the principle of consensual jurisdiction. This relativity entails that the principle of consensual jurisdiction cannot – directly or as such – require the consent of a non-party.

55

Brant (note 53), 224 et seq., 230 et seq.; Louis Delbez, Les principes généraux du contentieux international (1962), 136; Forlati (note 23), 111. 56 The seising is the act of instituting proceedings before the Court, whereas the seisin is the legal state and relationship following from it, Fitzmaurice (note 33), 440, footnote 2; Rosenne (note 35), 1145, footnote 1. 57 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997, Declaration of Judge Kreća, ICJ Reports 1997, 262; see also id., Genocide, Merits (note 52), 101; Jouannet, Quelques perspectives théoriques (note 53), 257. 58

It is highly doubtful whether the seising, and with it the jurisdiction of the Court in concreto, as opposed to its jurisdiction under Arts. 36, 37 ICJ Statute in abstracto (see for this distinction Julien Makowski, L’organisation actuelle de l’arbitrage international, Recueil des Cours de l’Academie de Droit International (RCADI) 36 (1931 II), 263, 351; Gerhard Wegen, Vergleich und Klagerücknahme im internationalen Prozeß (1987), 53), is at all subject to a second level of consent; see Prosper Weil, Compétence et saisine: un nouvel aspect du principe de la juridiction consensuelle, in: Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztow Skubiszewski (1996), 833 et seq. (in favour), and Amerasinghe (note 31), 66, and Rosenne (note 33), 547 (probably against). But even if this were so, the relativity of the seisin would still be determined by the simple fact that no other State has been named as a party in the instrument instituting proceedings.

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B. The Monetary Gold Principle as a Matter of Judicial Propriety?

If the Monetary Gold principle is therefore not a direct result of the principle of consensual jurisdiction, this nevertheless does not entail that it is wrong.59 The existing body of judicial and academic opinion particularly suggests the further possibility that the Monetary Gold principle may be an instance of the Court protecting its judicial character.60

1. The Protection of the Court’s Judicial Character The ICJ has held that it is under a duty to “maintain its judicial character” and that it has an inherent jurisdiction to take the measures necessary to that end.61 On that basis, the Court has, in its contentious jurisdiction, declined to decide cases that had become moot,62 dismissed cases in which the necessary dispute had disappeared subsequently to the bringing of the case,63 and struck cases off its General List in which it was patently without jurisdiction already at the provisional measures stage.64 The case law on the inherent jurisdiction or power in the Court to take measures to “maintain its judicial character” is an example of the ICJ taking its inspiration from the common law.65 In substance, however, the doctrine of inherent jurisdiction must 59

Contra Orakhelashvili (note 8), 389, 391.

60

See supra, notes 34, 35.

61

ICJ, Northern Cameroons (note 35), Judgment, 29; id., Nuclear Tests (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, 253, 259. 62

Id., Northern Cameroons (note 35), Judgment, 29 et seq.

63

Id., Nuclear Tests (note 61), 271 et seq.

64

Id., Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, 761, 773; id., Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, 916, 925. On this action as an exercise of an inherent jurisdiction, see id., Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 December 2004, Separate Opinion of Judge Higgins, ICJ Reports 2004, 336, 338; Tobias Thienel/Andreas Zimmermann, Yugoslavia: Cases and Proceedings before the ICJ, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2012), vol. X, 1054, 1058. 65 Benzing (note 42), 58; Chester Brown, A Common Law of International Adjudication (2007), 56 et seq.; Paolo Gaeta, Inherent Powers of International Courts and Tribunals, in: Lal Chand Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (2003), 353, 365.

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be traceable to the written law of the Statute.66 This being so, the doctrine of inherent jurisdiction has much in common with the doctrine of implied powers in the law of (non-judicial) international organisations.67 It therefore ultimately rests on a purposive construction of the Statute.68 As the judicial character of the Court is itself established and shaped by the Statute, so the protection of that character must also derive from the Statute.

2. The Court’s Judicial Character and the Principle of Consensual Jurisdiction Even if a third State in the Monetary Gold scenario is not bound by a judgment of the ICJ, and therefore is not exposed to an exercise of jurisdiction by the Court without its consent, the judgment nevertheless unquestionably has an effect on the third State. The decisions of the ICJ carry very considerable authority. They are regarded as authoritative by the Court itself,69 by other courts,70 and by the international community at large.71 This is true not only of the abstract statements of law, but also of 66 See the critical remarks of Leo Gross, Limitations upon the Judicial Function, AJIL 58 (1964), 415, 417, 430 et seq. See also Benzing (note 42), 63; Brown (note 65), 71; Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol. IV: International Judicial Law (1986), 456. 67

Benzing (note 42), 61. See also Brown (note 65), 69 et seq., who avoids the term ‘implied powers’ in the judicial context only because the courts have preferred not to use it (see International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, The Prosecutor v. Tihomir Blaškić, IT-95-14, Objection to the Issue of Subpoena Duces Tecum, Judgment of 29 October 1997, ILR 110, 607, 688, 698, footnote 27; Benzing (note 42), 60; Gaeta (note 65), 360, 362. 68 See as to the inherent jurisdiction of the ICJ David H. N. Johnson, The Case Concerning the Northern Cameroons, ICLQ 13 (1964), 1143, 1175. See as to the general law of international organisations Brown (note 65), 69; Stefan Kadelbach, Interpretation of the Charter, in: Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary, vol. I (2nd ed. 2012), 71, MN 33; Rahmatullah Khan, Implied Powers of the United Nations (1970), 37. 69

See ICJ, Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment of 21 March 1984, Dissenting Opinion of Sir Robert Jennings, ICJ Reports 1984, 148, 157; Forlati (note 23), 124, 131 et seq.; Palchetti (note 35), 140, 141; Alain Pellet, Article 38, in: Zimmermann et al. (eds.) (note 2), 731, MN 308 et seq. 70 71

See, e.g., PCA, Larsen (note 3), 591.

See on the perception of the ICJ as the “supreme public international law tribunal” Maurice Mendelson, The International Court of Justice and the Sources of International Law, in: Vaughan Lowe/Malgosia Fitzmaurice (eds.), Fifty Years of the International Court of Justice: Essays in Honour

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the application of the law to a specific situation.72 Indeed, this moral authority of the decisions of the Court plays an important role even in the compliance by States with decisions that are in fact binding upon them.73 This must be so, since there is no automatic enforcement of ICJ decisions.74 In the Monetary Gold scenario, therefore, the authority of any merits judgment of the ICJ for the third State would very nearly approximate – or as the Court itself put it, “amount to”75 – a judgment actually binding the third State. It would, if the party whose case opposes the third State succeeded, affect the interests of the third State nearly as powerfully and give the successful State nearly as much as a judgment that is not formally res inter alios acta for the third State. In more strictly legal terms, therefore, the Monetary Gold scenario affords a potential for circumventing the principle of consensual jurisdiction. The relativity of the legal effects of a judgment under Article 59 ICJ Statute and Article 94 (1) UN Charter would thus, in effect, be abused to remove the shackles of the principle of consensual jurisdiction in circumstances where they are substantively, if not in form, appropriate. This point may be put in terms of the protection of the Court’s judicial character, in the sense of the protection of its integrity as a judicial institution, by the argument that the Court should not allow itself to be used as an instrument for the circumvention and abuse of its Statute. Equally, the point may be expressed directly by reference to the Statute, circumvention and abuse being classical examples of offences against

of Sir Robert Jennings (1996), 63, 83; Pellet (note 69), MN 310. See also Edvard Hambro, Intervention under Art. 63 of the Statute of the International Court of Justice, Comunicazioni e Studi 14 (1975), 387, 398: “in the realities of the legal life an interpretation of a multilateral treaty must – anyhow in the jurisprudence of the Court – be binding erga omnes”. 72 See Palchetti (note 35), 159 et seq. This is why the majority of the Court was sharply criticised for holding in 2004 that Yugoslavia had not been a member of the United Nations between 1993 and 2000, the Court having been understood to have held otherwise, see ICJ, Legality of Use of Force, Preliminary Objections (note 64), Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby, 330, 332 et seq.; Pellet (note 69), MN 314. 73 See Delbez (note 55), 140 et seq.; Shabtai Rosenne, L’exécution et la mise en vigueur des décisions de la Cour internationale de Justice, RGDIP 57 (1953), 532, 540 et seq. 74

See as to Art. 94 (2) UN Charter Karin Oellers-Frahm, Article 94 UN Charter, in: Zimmermann et al. (eds.) (note 2), 186, MN 19; Rosenne (note 73), 570. 75

ICJ, East Timor (note 5), 105.

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the object and purpose of a provision. In any case, the Monetary Gold principle exists as collateral protection of the consensual regime of jurisdiction under the Statute.76 This leaves the question of exactly which cases are inadmissible because they are based on a circumvention of the principle of consensual jurisdiction and an abuse of the relativity of res judicata. If the decisive consideration was the moral authority of the Court’s judgments taken alone, it might be thought that the answer should not turn on a strict and immutable test, such as the test of the necessary incidental question from the Nauru case, but that admissibility and inadmissibility should be a question of the degree of prejudice suffered by the third State.77 However, the moral authority of the judgment for the third State is not itself decisive. It merely provides the occasion for finding a circumvention and abuse of the Statute. These two considerations on the interpretation of the Statute afford the logical basis on which inadmissibility depends. The extent of inadmissibility must therefore depend on when exactly the relativity of the legal effects of the judgment may be said to be abused, and when exactly the application ratione personae of the requirement of consent, which is controlled by this relativity, may be said to be circumvented. Logically, this may be tested by asking whether the third State would be bound by a merits judgment of the Court if the relativity of res judicata and of the binding effect of the judgment did not exist. If the third State was not on this hypothesis bound by the judgment, then plainly it would not be the relativity of the legal effects of the judgment that prevents the consent of the third State from being necessary. Accordingly, the relativity of the legal effects of the judgment would not be abused. Rather, the consent of the third State would be unnecessary because the content of the judgment did not sufficiently implicate the third State.

76

Vaughan Lowe, The International Court in a Timorous Mood, Cambridge Law Journal 54 (1995), 484, 485 (“protects the consensual basis of the Court’s jurisdiction”); see also von Arnauld (note 49), para. 470; Kolb (note 10), 574 (“fundamental principles of judicial integrity and consensual jurisdiction”); Yuval Shany, Assessing the Effectiveness of International Courts (2014), 87. In a similar sense, Coffman (note 28), 311 et seq., derives the Monetary Gold principle not from the Statute, which he regards as only requiring the consent of the actual parties, but from a broader principle of consensual jurisdiction in general international law. 77

Perez (note 53), 418 et seq. Brown (note 31), MN 60, and Kolb (note 10), 567, also appear to regard the question as one of degree.

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The decisive question therefore is one of hypothetical res judicata for the third State, the hypothesis being the lack of any relativity of res judicata (or the party status of the third State, which comes to the same thing). In other words, the Monetary Gold principle will not prevent adjudication where the lack of binding effect for the third State is not due to the personal limits of res judicata, but already to the material limits of res judicata.78 The material limits of res judicata mean that a part of the Court’s reasoning in law does not become final because it does not belong to the “particular case” (Article 59 ICJ Statute). Only the operative part of the judgment becomes res judicata.79 But the Permanent Court of International Justice (PCIJ) has also held that the “condition[s] essential to the Court’s decision” are encompassed by the binding force of the dispositif.80 The present Court has not been as express. It has often held that a request for interpretation under Article 60 cl. 2 ICJ Statute must pertain to the res judicata of the judgment to be interpreted and may concern the reasons that are “inseparable from the operative part.”81 But this need not mean that such reasons become final inasmuch as they contain incidental findings of “condition[s] essential to the Court’s decision;” it may mean simply that these reasons may be interpreted in order to elucidate the meaning of the operative part.82 However, the ICJ may be understood as having practiced a consequence of the view that necessary incidental findings become res judicata. In the Oil Platforms case between Iran and the United States, the Court had to decide whether US attacks on 78

See Zimmermann (note 7), 1074; see also Ajibola (note 3), 93.

79

Hambro (note 71), 398; Andreas Zimmermann/Tobias Thienel, Article 60, in: Zimmermann et al. (eds.) (note 2), 1469, MN 66. 80

PCIJ, Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory) (note 51), 20.

81

ICJ, Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment of 25 March 1999, ICJ Reports 1999, 31, 35; id., Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013, para. 34, available at: http:// www.icj-cij.org/docket/files/151/17704.pdf (accessed on 6 March 2015). 82 Cf. PCIJ, Polish Postal Service in Danzig, Advisory Opinion of 16 May 1925, Series B, No. 11, 30; John L. Simpson/Hazel Fox, International Arbitration (1959), 230. See also the treatment of the reasons of an earlier judgment in ICJ, Territorial and Maritime Dispute (note 37), Application by Honduras for Permission to Intervene, 443, but note that no incidental findings were at issue.

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Iranian oil facilities had interrupted trade in oil between the two States, violating a treaty of commerce. The United States argued that this could not have happened, because an embargo imposed by President Reagan had stopped all trade in oil with Iran. Iran met this argument by submitting that the Executive Order was itself in breach of the treaty. The Court noted that Iran had not presented any “formal submission or claim that the embargo was unlawful” and disposed of the Iranian argument as follows: The Iranian contention rests on the hypothesis that the embargo was a breach of the 1955 Treaty, and not justified under Article XX, paragraph 1 (d), thereof; but these are questions which Iran has chosen not to put formally in issue, and on which the Court has thus not heard full argument.83

It is not easy to see why a formal claim, which Iran had disavowed,84 should have been necessary, unless the incidental finding about the embargo would have added to the res judicata of the case. Similar implications arise from the Right of Passage case.85 Famously, the Court has also held that an issue of access to the Court under Article 35 ICJ Statute which was logically prior to the objections dismissed in a previous judgment was covered by the res judicata of that judgment.86 This is not quite the same as holding that necessary incidental findings become res judicata. However, incidental findings are at least as implicit in the operative part of a judgment as are logically prior findings. Moreover, express incidental findings, unlike merely logically prior findings, do not raise the difficulty of being unsupported by positive reasoning.87

83

ICJ, Oil Platforms (note 41), Judgment, 203 (emphasis added).

84

See the Counter-Memorial and Counter-Claim Submitted by the United States of America, 23 June 1997, 103, footnote 244, available at: http://www.icj-cij.org/docket/files/90/8632.pdf (accessed on 6 March 2015), and the Reply and Defence to Counter-Claim Submitted by the Islamic Republic of Iran, 10 March 1999, 123, available at: http://www.icj-cij.org/docket/files/90/8630.pdf (accessed on 6 March 2015). 85 See ICJ, Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, ICJ Reports 1960, 6, 30 et seq. 86 87

Id., Genocide (note 52),Merits, 98 et seq.

See as to that problem ibid., Joint Dissenting Opinion of Judges Ranjeva, Shi, and Koroma, 266, 267; Declaration of Judge Skotnikov, 366, 367. It is submitted that this, taken alone, was not a critical problem, because even procedurally defective decisions generally become res judicata.

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It may be concluded that necessary incidental findings in a judgment become res judicata.88 It follows that a necessary incidental finding about a third State in a case between two other States would, on the hypothesis that there was no relativity of res judicata, become final also for the third State. Only the relativity of res judicata therefore prevents the consent of the third State from being necessary. However, while decisive as to the application of the principle of consensual jurisdiction as a matter of law, the relativity of res judicata is ineffective in protecting the third State from the practical effects of the judgment as a matter of fact. The practical or moral authority of the judgment for the third State would be nearly the same as its legal authority for the actual parties. This being so, it may be accepted that the relativity of res judicata would be abused if judgment was given in a case between two States in which a necessary incidental question arises as to the rights and duties of a third State. It will be observed that the gloss on the Monetary Gold principle added in the Nauru case is thus confirmed as accurate. The Nauru test of the necessary incidental question therefore does not merely follow from the context of the Monetary Gold case, but it is justifiable by reference to the material reach of res judicata.

3. The Court’s Judicial Character and the Absence of the Third State However, the issue of circumventing the necessity of the third State’s consent does not entirely cover the Court’s treatment of the Monetary Gold principle. In particular, the Court has not suggested that the principle did not apply where the third State was subject to its jurisdiction. In the Nicaragua case, two of the supposedly affected States, Costa Rica and Honduras, were in fact subject to the jurisdiction of the

88

See PCA, The Pious Fund Case (United States of America, Mexico), Arbitral Award of 14 October 1902, RIAA IX, 1, 12 et seq. (as explained by Heinrich Lammasch, Die Rechtskraft internationaler Schiedssprüche (1913), 92 et seq.); Court of Arbitration, Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic (United Kingdom, France), Decision of 14 March 1978, RIAA XVIII, 271, 295; Forlati (note 23), 110; Hersch Lauterpacht, Private Law Sources and Analogies of International Law (with Special Reference to International Arbitration) (1927), 246; Simpson/Fox (note 82), 229 et seq.; contra Giorgio Gaja, Considerazioni sugli effetti delle sentenze di merito della Corte internazionale di giustizia, Comunicazioni e Studi 14 (1975), 313, 318 et seq.; Gaetano Morelli, La théorie générale du procès international, RCADI 61 (1938 III), 257, 319.

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Court,89 but this did not prevent the Court from addressing the argument of the indispensable third party (although this was dismissed). Similarly, in the Nauru case, New Zealand and the United Kingdom had made declarations accepting the Court’s jurisdiction under Article 36 (2) ICJ Statute. Whether these would have established the Court’s jurisdiction if the Nauru case had been brought also against those two States is not entirely clear,90 but the Court certainly did not address the question before entering into the application of the Monetary Gold principle at some depth – although again, the principle ultimately did not prevent adjudication. It therefore at least appears that the Monetary Gold principle is not solely a problem of the lack of the third State’s consent, but also a problem of its absence from the proceedings. This aspect has been justified as an application of the judicial maxim audi alteram partem (or audiatur et altera pars).91 The maxim audi alteram partem has a dual function. It describes a part of the procedural right to be heard,92 inasmuch as it provides that one party should be heard if the other party is being or has been heard. In this, the maxim audi alteram partem is also an important part of the principle of the equality of the parties.93 For the ICJ,

89

See Sabine Schorer, Das Konsensprinzip in der internationalen Gerichtsbarkeit (2003), 135.

90

In favour: Chinkin (note 31), 205; Zimmermann (note 7), 1065 footnote 67. Against: Schorer (note 89), 135 et seq., footnote 481, and the oral argument of Alain Pellet for Australia in the Nauru case, CR 91/17, 17, 21, available at: http://www.icj-cij.org/docket/files/80/5781.pdf (accessed on 6 March 2015). 91 ICJ, Nauru, Separate Opinion of Judge Shahabuddeen (note 2), 270, 293; id., Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment of 27 February 1998, Dissenting Opinion of President Schwebel, ICJ Reports 1998, 64, 80 et seq.; Ajibola (note 3), 89; Rosenne (note 33), 539, 543; Schorer (note 89), 136 et seq.; see also Aust (note 17), 310; Oliver (note 11), 221. 92

Cf. ICJ, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion of 30 March 1950, Dissenting Opinion of Judge Winiarski, ICJ Reports 1950, 89, 90. 93 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 291 et seq.; Kolb (note 40), MN 8; Venkateshwara Subramaniam Mani, International Adjudication: Procedural Aspects (1980), 16, 30; Hugh Thirlway, Non-appearance before the International Court of Justice (1985), 178. Both aspects of audi alteram partem are considered in the Court’s statement that both sides “have had adequate and in large measure equal opportunities to present their case,” ICJ, Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion of 1 February 2012, ICJ Reports 2012, 10, 30 (emphasis added).

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the maxim follows from the purpose and spirit of the various provisions of the Statute and the Rules of Court on hearing the parties,94 as well as from a general principle of law.95 For the purposes of the ‘absence aspect’ of the Monetary Gold principle, the question arises whether the maxim audi alteram partem may demand that a non-party be heard. Article 53 (1) ICJ Statute, under which the non-appearance of a party to the case shall not prevent the Court from giving judgment, certainly does not apply to a non-party. A party to the case has every right to be heard, so that its free decision not to appear involves a disposition and waiver of this right, which cannot negate the power of the Court to continue with the case.96 A non-party to the case, by contrast, has no right under the Statute to be heard, unless it has been permitted to intervene under Article 62 or Article 63 ICJ Statute. This follows from the “right of quasiproperty” in the proceedings that generally belongs to the parties.97 The general principle, absent intervention, is therefore that “no other State may involve itself in the proceedings without the consent of the original parties.”98 If, therefore, the Statute prevents the Court from affording a non-party the opportunity to be heard, a right of a non-party to be heard cannot exist under the Statute. Moreover, if such a right existed where a non-party has a legal interest in the case within the meaning of Article 62 ICJ Statute, intervention under that provision would become a necessity for

94

See Joe Verhoeven, Jura novit curia et le juge international, in: Pierre-Marie Dupuy et al. (eds.), Völkerrecht als Wertordnung/Common Values in International Law: Festschrift für/Essays in Honour of Christian Tomuschat (2006), 635, 651; Mani (note 93), 31. Thirlway (note 93), 43, singles out Art. 53 ICJ Statute. 95

Benzing (note 42), 116; Cheng (note 93), 291 et seq.

96

See ICJ, Nicaragua (note 46), 24: “A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation”. 97

International Law Commission (ILC), Report on Arbitral Procedure by Georges Scelle, Yearbook of the International Law Commission 1950, vol. II, 114, 138 (“droit de quasi propriété”). 98 ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), Application for Permission to Intervene, Judgment of 13 September 1990, ICJ Reports 1990, 92, 133; see also Ajibola (note 3), 86; Kolb (note 10), 696. Under this principle, the Court has denied a request by Afghanistan to be allowed to reply to an oral statement by one of the parties in ICJ, Trial of Pakistani Prisoners of War (Pakistan v. India), ICJ Pleadings 1976, 167 et seq. (Afghan letter) and 174 et seq. (reply of the Registrar), see also Nick Covelli, Public International Law and Third Party Participation in WTO Panel Proceedings, Journal of World Trade 33 (2) (1999), 125, 138.

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the admissibility of the case, rather than an option for that third State. This is not the true position under the Statute.99 It would be surprising, given the absence from the Statute of a right of a non-party to be heard, if the maxim audi alteram partem as a general principle of law nevertheless contained such a right. Indeed it does not. The maxim, in its capacity as an aspect of the right to be heard,100 means that a party whose rights will be directly affected by a judicial decision should be allowed to defend itself, based on its fundamental right as a legal entity to assert its rights.101 This right is not material if the rights of the entity in question will not be directly affected by a decision. It therefore remains the case that a non-party does not have a right to be heard. The maxim audi alteram partem (or audiatur et altera pars) is therefore more precisely expressed as audiatur et altera pars in judicio (the other party to the proceedings shall also be heard).102 It may be observed, however, that in the Monetary Gold scenario, the rights of the third State to be heard as a party are circumvented, just as the necessity of its consent as a party to the Court’s jurisdiction is circumvented. The previous reasoning that was applied to define when exactly such a circumvention takes place therefore applies to the audi alteram partem point as well. It follows that a case will be inadmissible on the grounds of a circumvention of the fundamental right to be heard if a third State was, on the hypothesis of its not being protected by the relativity of res judicata, bound by a judgment on the merits.103 Again, therefore, the Nauru test of the necessary incidental question applies.

IV. The Required Procedural Role of the Third State The foregoing explanation of the Monetary Gold principle carries implications for the procedural status that the affected third State must have in order to remove the 99 100

See ICJ, Nauru (note 2), Judgment, 261. The principle of the equality of the parties plainly cannot benefit a non-party.

101

See Schorer (note 89), 136, as well as Peter Hamacher, Die Maxime audiatur et altera pars im Völkerrecht (1986), 80, 96 et seq. 102 103

For this form of words, see Kolb (note 40), MN 2. See supra, III.B.2.

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inadmissibility that would otherwise arise from the principle. In this regard, the question arises whether the third State has to be a party to the case104 or whether it is sufficient that the third State has intervened as a non-party.105 The early cases did not give a definite answer to this question. They did not need to, either because the relevant third State had no procedural status whatsoever,106 or because the Monetary Gold test was held not to be satisfied.107 However, in the more recent case on the Land and Maritime Boundary between Cameroon and Nigeria, the Court expressly regarded the Monetary Gold principle as applicable to the involvement of the legal interests of São Tomé and Príncipe, even though that State had intervened as a nonparty.108 Similarly, the Court referred to the Monetary Gold principle in relation to the involvement of the legal interests of Greece in a particular line of argument in the Jurisdictional Immunities case while Greece was a non-party intervener.109 The Court therefore clearly regards the Monetary Gold principle as a rule of an ‘indispensable third party’ in a strict sense.110 This attitude is readily understandable if the Monetary Gold principle is regarded as directly an issue of a lack of jurisdiction over the third State. If, in the Monetary Gold scenario, the Court is without jurisdiction over the third State, then it is only 104 An intervention as a party would then suffice, see Kolb (note 10), 707; Schorer (note 89), 131; Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960–1989 (Part Thirteen), BYIL 74 (2003), 7, 50, footnote 167; Andreas Zimmermann, Business as Usual? The International Court of Justice’s 2012 Practice: Facing New Procedural and Jurisdictional Questions, JIDS 4 (2013), 521, 532. 105

See ICJ, Continental Shelf (note 69), Dissenting Opinion of Sir Robert Jennings, 156.

106

See id., Monetary Gold (note 1), 32.

107

See id., Land, Island and Maritime Frontier Dispute (note 98), 116, 122.

108

Id., Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), Merits, Judgment of 10 October 2002, ICJ Reports 2002, 303, 421. The Court did not in this judgment refer to the Monetary Gold case, but it had done so in the preceding judgment on preliminary objections, id., Land and Maritime Boundary between Cameroon an Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment of 11 June 1998, ICJ Reports 1998, 275, 312, 324. 109 110

Id., Jurisdictional Immunities (note 24), 150 et seq.; see also Zimmermann (note 104), 532.

Evelyne Lagrange, Le tiers à l’instance devant les juridictions internationales à vocation universelles (CIJ et TDIM), in: Ruiz Fabri/Sorel (note 53), 9, 48. See also ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, 168, 238.

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natural that the Court’s jurisdiction over the third State has to be established in the normal way, which includes making that State a party to the case. However, that is not how the Monetary Gold principle has been conceptualised here. If, as has been argued, the Monetary Gold principle merely prevents the circumvention of the requirement of consent and of the maxim audi alteram partem, then only the impropriety of this circumvention needs to be ruled out. This does not entail that the Court’s jurisdiction to decide the case with binding force also vis-à-vis the third State needs to be made out. Instead, the impropriety of circumventing the requirement of consent is ruled out already if the third State is subject to the Court’s jurisdiction (in abstracto).111 The third State’s being made a party to the case would not add to its consent. It therefore should not be demanded by a rule protecting the principle of consensual jurisdiction. The circumvention of the maxim audi alteram partem, for its part, is ruled out if the third State appears as a non-party intervener. This would give it a right to make submissions to the Court in relation to its legal interests.112 The third State could intervene under Article 62 ICJ Statute, because it has legal interests in the case that even form “the very subject-matter of the case.”113 It is not accurate to argue, as has been done,114 that an intervention by the third State in a Monetary Gold scenario would involve “tack[ing] on a new case,” which intervention cannot do.115 Because the legal interests of the third State in the Monetary Gold scenario form “the very subject-matter of the case,” they are already part of the original case.116 Any matters of substance regarding the intervening third State can therefore be dealt with by the Court,117 not having been introduced by the intervention. 111

As to the concept of jurisdiction in abstracto, cf. supra, text at note 42 and note 58.

112

See Art. 85 (3) Rules of Court, and ICJ, Land, Island and Maritime Frontier Dispute (note 98),

136. 113

See ibid., 116.

114

Rudolf Bernhardt, Le règlement judiciaire et arbitral des différends internationaux impliquant plus de deux Etats/Judicial and arbitral settlement of international disputes involving more than two States, Report – final version, Annuaire de l’Institut de Droit International 68 (1) (1999), 60, 101, 110. 115

See ICJ, Land, Island and Maritime Frontier Dispute (note 98), 133 et seq.; id., Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene, Judgment of 23 October 2001, ICJ Reports 2001, 575, 588. 116

See Palchetti (note 35), 150, making this point about any case in which the interests of a third State are involved. 117

ICJ, Continental Shelf (note 69), Dissenting Opinion of Sir Robert Jennings, 155 et seq.

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It follows that the concerns governing the Monetary Gold principle are sufficiently taken care of if the third State in question is subject to the jurisdiction of the Court and is present in the proceedings as a non-party intervener. Once these concerns are out of the way, it is not for the Court to demand the applicant to bring its case also against the third State. Under the logic of cases brought by application it is the applicant that decides which dispute it wants to have decided.118 Consequently, while it is appropriate to make a quasi-decision on a third State subject to the consent and a hearing of that State, it is not also appropriate to require an applicant to extend its case. It is true that a lack of party status would still deprive the third State, even as a non-party intervener, of the full panoply of rights belonging to the parties, such as the right to nominate a judge ad hoc or request an interpretation or revision of any eventual judgment (Articles 31, 60, 61 ICJ Statute).119 But this can be justified. While it is true to say that these rights of a party are circumvented in a Monetary Gold scenario just as much as the right to be heard, these other procedural rights are bound up with the special position of the parties. Through these rights, the parties are domini litis or Herren des Verfahrens. They are going to be bound by the judgment and therefore have rights directed at affecting the content of the judgment by putting a judge ad hoc on the bench,120 by having the content of the judgment elucidated through an interpretation or by having the judgment revised. The position of the parties as domini litis (their Verfahrensherrschaft) is thus a consequence of their being bound by the judgment. A State that is not going to be bound by the judgment therefore cannot claim the same rights as the parties merely because it is going to be factually affected by the judgment. This is no undue hardship for the third State. The fact that it does not have the particular rights of a dominus litis remains counterbalanced by the fact that it is not subject to the binding force of the judgment. This balance is logically cogent; if the third State is not to be bound by the judgment, it cannot have the rights of a dominus litis. 118

See Wegen (note 58), 59; see also Kolb (note 40), MN 33 et seq.

119

See Lagrange (note 110), 55; Palchetti (note 35), 155; Zimmermann/Thienel (note 79), MN 56.

120

On the role of the judge ad hoc see ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 13 September 1993, Separate Opinion of Judge Lauterpacht, ICJ Reports 1993, 407, 409.

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For these reasons, it ought to be sufficient to remove any inadmissibility under the Monetary Gold principle if the third State is subject to the Court’s jurisdiction and appears as a non-party intervener in the proceedings.121 In such a case (which may not be very likely to occur), both of the doctrinal foundations of the Monetary Gold principle – the circumvention of the principle of consensual jurisdiction and the circumvention of audi alteram partem – would be duly addressed. Moreover, it might be added that the third State can consent to adjudication even in the absence of its intervention and jurisdiction over it. The Monetary Gold principle does not as such provide the third State with a right to non-adjudication of which the third State could dispose.122 Under the reasoning laid out above, the Monetary Gold principle rather constitutes an objective protection of the integrity of the Court and its Statute. However, the aspects of the Statute that are protected by the principle are clearly at the disposal of the third State. The third State can clearly remove the hurdle of the Court’s jurisdiction over it (usually by creating such jurisdiction, but this is not necessary here, because no decision binding the third State is sought), and it can dispose of its right to be heard. Therefore, the third State can disapply the underlying considerations of the Monetary Gold principle, and with them, the principle itself.

121 While intervention as a party requires that the intervener is subject to the Court’s jurisdiction (id., Pulau Ligitan and Pulau Sipadan (note 115), 589; id., Territorial and Maritime Dispute, Application by Honduras for Permission to Intervene (note 37), 432), intervention in the presence of an available basis of jurisdiction is not necessarily an intervention as a party (contra Schorer (note 89), 131). Party status only arises if it is requested by the intervener, which only thereby would hold itself out to the jurisdiction of the Court in concreto. The act of intervention as such is not capable of giving rise to jurisdiction in concreto (cf. Chinkin (note 31), 200), because it is also possible to intervene in the absence of jurisdiction. Moreover, the Court cannot be bound to examine ex officio every arguable basis of jurisdiction in order to determine whether intervention is sought as a party (see also Art. 81 (2)(c) Rules of Court, which implies that jurisdiction should be invoked in order to be effective). 122 See Emmanuelle Jouannet, L’impossible protection des droits du tiers par la Cour internationale de justice dans les affaires de délimitation maritime, in: Vincent Coussirat-Coustère et al. (eds.), La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (2003), 315, 321: “[L]a sauvegarde des intérêts du tiers n’est qu’une conséquence indirecte et subsidiaire du principe de l’Or monétaire”; apparently contra ICJ, Genocide (Croatia v. Serbia) (note 24), para. 116.

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V. The Application of the Monetary Gold Principle in Some Specific Cases The ICJ is capable of applying any rule of public international law. Accordingly, the potential for third State issues to arise, also within the meaning of the Monetary Gold principle, cannot be conclusively delimited. Responsibility for complicity in the internationally wrongful act of another State provides one example, as was already suggested by the International Law Commission (ILC) in its explanation of such derivative responsibility.123 Responsibility for inciting another State to commit genocide under Article III (c) Genocide Convention,124 conversely, does not, because such responsibility is in the nature of the criminal law concept of an ‘inchoate crime.’125 It is therefore not a necessary element of responsibility for incitement that the incited party did in fact commit any acts of genocide.126 Accordingly, the responsibility of a third State that may have been among the addressees of an act of incitement for acts of genocide is not a necessary incidental question in the Nauru sense in a case against the inciting party. Likewise, the responsibility of a third State does not arise incidentally if a respondent State is held responsible under human rights law for having extradited a person to that State, even if that person is then in fact subjected to torture or inhuman or degrading treatment. The nature of responsibility for an extradition in such circumstances lies in the act of exposing a person to a risk of ill-treatment,127 not in causing some ill-

123

ILC, Report on the work of its fifty-third session, UN Doc. A/56/10 (2001), 160; see also the discussions by Aust (note 17), 305 et seq.; Andreas Felder, Die Beihilfe im Recht der völkerrechtlichen Staatenverantwortlichkeit (2007), 247 et seq. 124 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS 78, 277 (Genocide Convention). As to State responsibility under this Convention, see ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Yugoslavia), Preliminary Objections, ICJ Reports 1996, 595, 616; Marko Milanović, State Responsibility for Genocide, European Journal of International Law 17 (2006), 553, 570 et seq. 125

Milanović (note 124), 571 et seq.

126

Ibid.

127

See European Court of Human Rights, Cruz Varas v. Sweden, Judgment of 20 March 1991, Series A, No. 201, para. 76; id., Said v. The Netherlands, Judgment of 5 July 2005, RJD 2005-VI, 275, para. 48; Patrick Schäfer, Verletzungen der Europäischen Menschenrechtskonvention durch Europäisches Gemeinschaftsrecht und dessen Vollzug (2006), 147.

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treatment that actually takes place.128 Again, therefore, the Nauru test of the necessary incidental question is not satisfied. A full list of cases raising apparent or real Monetary Gold questions cannot possibly be given. However, it may be noted that the Monetary Gold principle has a role to play not only with respect to determinations of the responsibility of a third State, but also in maritime and territorial delimitation cases. In maritime delimitation cases, the ICJ has frequently stopped short of delineating the maritime zones of the two parties in areas to which a third State might have a claim. At first, the ICJ showed such circumspection without referring to the Monetary Gold case.129 However, this limitation of the extent – rather than only the effect per rem judicatam – of the Court’s decisions always constituted a decision infra petita, which could only have been justified under the Monetary Gold principle.130 Moreover, the Court has more recently cited the Monetary Gold case in support of this limitation of its decisions in maritime delimitation cases.131 There is no reason to suppose that the same principles could not, in the appropriate circumstances, be applied also in territorial delimitation cases.132 The Court has also suggested that the application of the Monetary Gold principle is governed by the Nauru test of the necessary incidental question in delimitation cases, too.133 This is more problematic. It implies that the Court in a delimitation case follows a process of elimination, whereby the Court determines which States do not 128 Indeed, there may be a violation even if the ill-treatment does not materialise, Aust (note 17), 396; Marko Milanović, Extraterritorial Application of Human Rights Treaties (2011), 9; Schäfer (note 127), 147. 129 ICJ, Continental Shelf (Libyan Arab Jamahiriya/Malta), Merits, Judgment of 3 June 1985, ICJ Reports 1985, 13, 24 et seq. See also id., Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 116 March 2001, ICJ Reports 2001, 40, 109; id., Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61, 100, 129, 131; id. Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment of 19 November 2012, ICJ Reports 2012, 624, 707. 130

See Kolb (note 40), MN 46.

131

ICJ, Land and Maritime Boundary between Cameroon and Nigeria (note 108), Preliminary Objections, 312, 324; id., Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (note 24), 756. 132 133

Tomuschat (note 2), MN 25.

ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (note 24), 756.

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have a claim to the relevant area, in order to arrive at the State that does have title. Only if this is the question for the Court does the title of a third State become a necessary incidental question, in the sense of the answer as to the third State being a logical prerequisite to the decision as between the parties. However, this does not appear to be the true nature of the judicial exercise in delimitation cases. Rather, the question for the Court appears to be one single question of which State has the best claim to the relevant area. It does not, in a negative exercise, eliminate the contenders one by one, but it examines and compares the strength of the positive indicators of title.134 This being so, the legal position of the third State is not a logical prerequisite to the decision inter partes. The Nauru test is therefore not in point. However, this does not mean that the Monetary Gold principle cannot apply. The third State is not involved in a logically prior question for the case between the parties, but it is involved already in the main question in the case, namely in the weighing up of the different claims in contention. This is because the operative part of the judgment in delimitation is in its legal substance, although not in its form or effect, a statement of absolute title. Accordingly, the basic test of hypothetical res judicata135 is satisfied not on the basis that the third State’s legal interests would be concerned in an incidental finding which hypothetically would constitute res judicata for that State were it not for the relativity of res judicata, but on the basis that the operative part (dispositif) itself would involve the third State and thus become hypothetical res judicata for it. It follows from this that the Monetary Gold principle essentially comes in two parts. It applies if the third State’s legal interests are involved in a necessary incidental question, as under the Nauru test. This is because the Court’s answer to such a necessary incidental question would become res judicata, and would do so even for the third State were it not protected by the relativity of res judicata. If this is so, it is possible and appropriate to argue that the relativity of res judicata is in effect abused to circumvent the strictures of consent and of the maxim audi alteram partem. But the 134 See PCIJ, Legal Status of Eastern Greenland, PCIJ Series A/B, No. 53, 46; Nuno Sérgio Marques Antunes, The Eritrea-Yemen Arbitration: First Stage – The Law of Title to Territory Re-Averred, ICLQ 48 (1999), 362, 376. 135

See supra, III.B.2.

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Monetary Gold principle also applies if the ICJ is asked to make a decision on absolute title to territory, to a maritime zone, or to a piece of property. In such a case, the third State as a possible contender to such title is involved in the main question for the Court. Accordingly, the dispositif itself and not just an incidental finding inherent in it must be regarded as hypothetical res judicata for the third State, owing to the absolute nature of the rights being decided upon.

VI. Conclusion In the Monetary Gold case, the ICJ established that an incidental decision on the affairs of a State that has not consented to the case is incompatible with the principle of consensual jurisdiction. However, the Court has never explained exactly how this incompatibility arises. This has meant that doctrinal uncertainty has arisen over when exactly the principle arises and what exactly it requires. Closer analysis ought to remove such uncertainty. It is submitted here that the Monetary Gold principle is not directly a matter of the Court’s jurisdiction, but rather a question of the circumvention and abuse of the ordinary governing rules of the ICJ Statute. This being so, the extent of inadmissibility under the Monetary Gold principle may be demonstrated clearly by asking whether the third State is involved in the case in such a manner that it would be bound by the res judicata of the judgment if the relativity of res judicata did not apply. If so, the relativity of res judicata, which provides only ineffective protection in reality, may be said to be abused. In most cases, this logic supports the Monetary Gold case law of the ICJ, as developed in Nauru. This case law certainly has a potential to inhibit the Court in the resolution of tri- or multipartite disputes. However, while the principle of consensual jurisdiction remains and adjudication on a State is not an everyday event, the Monetary Gold principle remains justified in the service of the integrity of the system.

Implied Constitutional Competence of the European Court of Human Rights MART SUSI(

ABSTRACT: The article addresses the question of the competing functions of the European Court of Human Rights – the constitutional function and the adjudicatory function. A variety of factors and stakeholders indicate that the Court’s function is predominantly constitutional; the political declarations, the absence of counterbalancing factors to the Court’s constitutional ambitions, the growing tendency of national courts to act as ‘Convention courts,’ the theoretical considerations of scholars, and the Court’s own interpretation of its goals on the basis of founding documents. The article calls this ‘implied constitutional competence.’ Such implied constitutional competence is a different function from legislative intervention, which resembles a more legislative function. The article demonstrates that the Court’s intervention into Member States’ domestic judicial affairs is increasing. The dynamics of requiring States to change laws or modify judicial practices has lead the Court to ‘test’ the limits of its powers – recently the Court has considered it possible to require the changing of a national constitutional norm. The article proposes a hypothesis that the legislative and constitutional intervention will not succeed as an overall judicial methodology, unless the national courts start endorsing the Court’s requirements through domestic judgments. KEYWORDS: End of the Era of Human Rights, European Court of Human Rights, International Court’s Constitutional Function, International Court’s Adjudicatory Function, Evolutive Treaty Interpretation, Judicial Activity of International Courts, Legislative Interference, Convergence of European Human Rights Protection Systems

I. Introduction The keynote speaker at the 2014 Association of Human Rights Research Institutes Annual Research Conference, the Dean of Buffalo Law School from the United States Dr. Makau W. Mutua, surprised the audience by stating that the age of human

(

Associate Professor of Human Rights, Head of Research of Tallinn University Law School.

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rights is over.1 Although the ‘academic consensus’ at the Conference rejected the idea as an exaggeration, being more satisfied by a statement that human rights research is affected by its ‘midlife crisis,’ the words of Dean Mutua reflect the need to rethink and perhaps reformulate some fundamental features of human rights protection architecture in the world. In this context, the discussion about the future role of the European Court of Human Rights (ECtHR) within the human rights paradigm in Europe – which may have started as a purely ‘academic’ or ‘pragmatic’2 debate, may at a time when doctrines of political and moral relativism develop from abstract considerations to full theories, suddenly assume a broader significance. In other words, while the European human rights protection system has for years been hailed as the most advanced – both from the perspective of State compliance with international human rights obligations and elaborate judicial techniques – for analysing violations and setting criteria on behalf of the ECtHR, the question emerges whether this Court itself is equipped to continue acting as a beacon of human rights standards in Europe and globally. This is a question of immense social importance, not only for the discourse surrounding which court will have the ‘final word’ among the courts of Europe, but predominantly for the future of European historical and moral values.

II. The Debate A. General Remarks

The international debate about the future of the ECtHR conceptualises around two functions: the constitutionalist and the adjudicatory. Professor Fiona de Londras refers to this debate as the question of ‘dual functionality,’ suggesting that maintaining both functions keeps the Court in a state of frailty and calling for the Court to continuously strengthen its constitutional role in developing the European ordre

1

The keynote speech is not available online, but because of the discussions it initiated among the attendees the message about the ‘end of the human rights era’ is out – at least in human rights circles. The idea of the end of human rights is not novel – see, for context, Costas Douzinas, The End of Human Rights (2000); Conor Gearty, Can Human Rights Survive (2006); Stephen Hopgood, The Endtime of Human Rights (2013). 2

E.g. to relieve the Court of its heavy caseload.

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publique.3 The debate whether the ECtHR should become more a semi-constitutional European court or whether it should strengthen its ability to provide individual justice has many aspects. One aspect is to contemplate ‘who is asking?,’ the anticipated role of an international court may seem different based on the personal ‘closeness’ of the writer to actual human rights violations. For a former President of the Court, the “independence, impartiality and integrity of its judges [of the Court] and of the officials of the Registry”4 provides almost carte blanche to suggest that any development which the Court may undertake will serve the European public well. The practitioner emphasises that the European community needs and deserves individual justice emerging from the ECtHR judgments as an obligation towards the victims of State and domestic violence, human trafficking, and to those languishing in inhumane prisons. 5 Another aspect to be considered is the authority for the ECtHR’s constitutional function. Although there is nothing expressis verbis in the text of the European Convention on Human Rights (ECHR)6 about the constitutional role of the ECtHR, the dynamics towards constitutionalism do not solely rest on the Court’s evolutive interpretation of its fundamental texts.7 The recent conferences on the Court’s future are clearly based on the idea that the Court’s judgments must have an impact beyond the concrete respondent State.8 3

For discussion, see Fiona de Londras, Dual Functionality and the Persistent Frailty of the European Court of Human Rights, European Human Rights Law Review (EHRLR) 1 (2013), 38. In particular, de Londras defines the constitutionalist decision-making as clarifying standards, holding States to account for them, and sometimes developing those standards beyond their literal conceptions in order to reflect more contemporary understandings, ibid., 40. 4 Jean-Paul Costa, On the Legitimacy of the European Court of Human Rights’ Judgments, European Constitutional Law Review 7 (2011), 173, 182. 5

Philip Leach, What is Justice? Reflections of a Practitioner at the European Court of Human Rights, EHRLR 18 (2013), 392, 392. Professor Leach argues that the main weakness for securing individual justice lies in the reluctance of the Member States to enforce individual judgments in ‘difficult’ cases and undertake structural changes. 6 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 7 Examples of the Court’s stretching of its powers are the doctrines of pilot-judgments and detection of structural problems, often leading to the request towards a given Member State to initiate legislative changes. 8

The Brighton Declaration, which was adopted at the High Level Conference on the Future of the European Court of Human Rights on 19–20 April 2012, endorsed through the government leaders the

356 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 B. The Role of National Courts

Within the doctrine of the increased constitutional role of the ECtHR the relationship between national and international courts needs attention. It appears that within national judicial systems the lower level courts have in recent years shown more and more willingness to directly apply ECHR norms and EctHR jurisprudence, raising the question of ‘who is the master in the house?’9 in the eyes of the highest national courts. In a recent comparative analysis on the relationship between national courts and ECtHR jurisprudence, Janneke Gerards demonstrates that the doctrine of ‘shared responsibility’ between the national courts and the ECtHR for protecting human rights has stimulated the national courts to act as ‘Convention courts’ when directly applying the Strasbourg case law.10 This comparative analysis, besides being a noteworthy contribution to the ongoing discussion whether the national courts act like marionettes when following the ECtHR case law, clearly demonstrates through the example of six Member States of the Council of Europe,11 that often national constitutional review and human rights protection architectures rely on the ECtHR setting constitutional standards. This seems an unexpected conclusion. Despite the differences in the competences of national courts to review the compatibility of national legislation with international law and regarding the status of the ECHR in the national hierarchy of norms,12 the analysis of the six countries reveals that the Court’s general interpretative task of human rights law, available at: http://www.echr.coe.int/Documents/ 2012_Brighton_FinalDeclaration_ENG.pdf (accessed on 29 January 2015). The Interlaken Declaration, which was adopted at the High Level Conference on the Future of the European Court of Human Rights on 19 February 2010, calls in para. 4 for the Member States to draw conclusions from a judgment finding similar violation in another Member State, available at: http://www.coe.int/t/dgi/hr-natimplement/ Source/interlaken_declaration_en.pdf (accessed on 29 January 2015). 9

For context, see the monograph by Mitchel Lasser where he demonstrates how the balance of powers between the French legislature and judiciary has shifted in favour of the latter, as well as how the European Court of Human Rights (ECtHR) jurisprudence has ‘shaken’ French judicial and administrative hierarchies – Mitchel Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (2009). 10

Janneke Gerards, The European Court of Human Rights and the National Courts: Giving Shape to the Notion of ‘Shared Responsibility,’ in: Janneke Gerards/Joseph Fleuren (eds.), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-law (2014), 89. 11 The analysis covers Belgium, France, Germany, the Netherlands, Sweden, and the United Kingdom. 12

For discussion see: Janneke Gerards/Joseph Fleuren, Comparative Analysis, in: Gerards/Fleuren (eds.) (note 10), 333.

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semi-constitutional function of the ECtHR is now an inseparable part of national legal and judicial systems. As there is no sign of reverse dynamics, the discussion whether the ECtHR should define itself more as a constitutional or adjudicatory court already has an answer through the legal realities in the Member States – thus the discussion may even be devoid of practical purpose.13 For verification of this statement we may look at the conclusions regarding each country, where Germany appears to be an exception in relation to the degree of incorporation of ECtHR principles into daily litigation. In Belgium, the ECHR is ‘constitutionalised’ as it is incorporated by the Belgian Constitutional Court in the Belgian constitutional design.14 French judges are nowadays prepared to apply national law in conformity with ECtHR prescriptions.15 Since Dutch courts are not allowed to test Acts of Parliament against the Constitution and the Charter for the Kingdom of the Netherlands against the unwritten fundamental principles of law, the readily available concrete and practical standards developed by the ECtHR enable the Dutch courts to conduct semi-constitutional review.16 Although the Swedish courts are reported to exhibit reluctance in accepting the argument that laws should not be applied on the basis that they allegedly violate the ECHR, this can be explained by the historical reluctance by Swedish judges and politicians to accept the idea of constitutional review even within Sweden’s own legal system.17 British courts are reported to utilise more and more analytical techniques developed by the ECtHR.18 In contrast to the other countries reviewed, it appears that in the German judicial order the ECtHR principles still have an ‘interpretative’ role.19 From a slightly different perspective, since it can be argued that constitutional courts themselves in many European Union 13 The phenomenon of the national courts applying the ECtHR principles and jurisprudence seems to have appeared within the last decade. Perhaps one of the reasons behind this shift is indeed the increased ability of the ECtHR to offer national courts a full ‘judicial basket’ of constitutional principles, which may overshadow the diversity of principles advanced by respective national constitutional or supreme courts. 14 Guan Schaiko/Paul Lemmens/Koen Lemmens, Belgium, in: Gerards/Fleuren (eds.) (note 10), 95, 142–143. 15

Céline Lageot, France, in: Gerards/Fleuren (eds.) (note 10), 145, 183.

16

Janneke Gerards/Joseph Fleuren, The Netherlands, in: Gerards/Fleuren (eds.) (note 10), 217, 256–266. 17

Iain Cameron/Thomas Bull, Sweden, in: Gerards/Fleuren (eds.) (note 10), 261, 287–295.

18

Roger Masterman, The United Kingdom, in: Gerards/Fleuren (eds.) (note 10), 297, 331.

19

Eckart Klein, Germany, in: Gerards/Fleuren (eds.) (note 10), 185, 214–215.

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(EU) States channel European standards into national legal systems,20 there is no reason to doubt that the same cannot be argued about the Strasbourg standards. Ideally then, if all national courts are to act as Convention courts, the ECtHR has its main or sole task of setting the applicable standards – very much similar to the tasks of a national constitutional court. Giuseppe Martinico has analysed the ‘counter-limits’ doctrine in response to the growing constitutional aspirations of the ECtHR, observing the trend of convergence within the jurisprudence of the highest courts of many European countries.21 Céline Lageot notes the refusal of the French Constitutional Council to interpret constitutional principles in light of the fundamental rights guaranteed by the ECHR.22 Or take the almost anecdotal shift from the question among German courts from “What will Karlsruhe23 say about it?” to “What will Strasbourg say about it?”24 Despite the growing literature on the relationships between the national and supranational courts, the question about the degree of penetration of the Strasbourg Court’s jurisprudence into domestic jurisprudence of the Member States has not been researched utilising quantitative methods.25 Until the new academic aspirations to apply quantitative methods to human rights protection and compliance in national legal systems yield publishable results, the argument that national courts need the ECtHR constitutional principles for daily litigation remains narrative-based.26

20

For discussion, see Darinka Piqani, Arguments for a Holistic Approach in European Constitutionalism: What Role for National Institutions in Avoiding Constitutional Conflicts between National Constitutions and EU Law, European Constitutional Law Review 8 (2012), 493. 21

Giuseppe Martinico, Is the European Convention Going to Be ‘Supreme’? A ComparativeConstitutional Overview of ECHR and EU Law before National Courts, European Journal of International Law (EJIL) 23 (2012), 401, 423. 22

Lageot (note 15), 184.

23

Seat of the German Federal Constitutional Court.

24

Klein (note 19), 215.

25

For some discussion about the constraints caused by the methodological challenges facing the question, see Arthur Dyevre, European Integration and National Courts: Defending Sovereignty under Institutional Constraints?, European Constitutional Law Review 9 (2013), 139. 26 For discussion, see Malcolm Langford/Sakiko Fukudo-Parr, The Turn to Metrics, Nordic Journal of Human Rights 30 (2012), 222. Or consider the initiative of Tallinn University Law School, Oslo University Norwegian Centre for Human Rights, Iceland University Law Institute, and Tampere University initiative to establish European Human Rights Index, announced at the 2014 Human Rights Research Institutes Conference in Copenhagen.

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However, within the doctrine of ‘input-legitimacy,’27 which focuses on the question of whether constitutional courts are set up in a way that properly confers legitimacy on them, the constitutional function of the ECtHR receives input from the application of the ECtHR standards from the national ordinary courts and not necessarily from the national constitutional or supreme courts.

C. Judicial Activism and Strasbourg v. Luxembourg

The current debate needs to take the broader phenomenon of the increasing judicial activity of international courts into account. At a time of increased political inability to reach international or regional consensus on fundamental human rights matters or issues of fundamental values, the other actors will fill the vacuum. The phenomenon of judicial activism28 simply means that when the international political establishment is unwilling or unable to develop human rights or moral standards, the international courts will. In a recent comprehensive article about the effectiveness of international courts, Yuval Shany has developed the hypothesis that the study of court effectiveness should be based on the specific goals set for each particular court.29 Even though there may not be a consensus among the stakeholders that the European Human Rights Court should primarily act as a constitutional court, opponents of the constitutional function approach do not seem to offer alternatives to its constitutional goals. Similarities with the dynamic of the Court of Justice of the European Union (CJEU) are evident. The CJEU not only established principles not written into the Community legal order, but it has also expanded their meaning and scope without the express consent of the Member States.30 It has been argued that the CJEU has fashioned its powers by internal evolution and has shaped a constitutional framework for 27

For discussion about the various doctrines of courts’ judicial legitimacy, see Christopher McCrudden/Brendan O’Leary, Courts and Consociations, or How Human Rights Courts May Destabilize Power-sharing Settlements, EJIL 24 (2013), 477, 500–501. 28 For discussion about the rising trend of judicial activism, see Daniele Amoroso, The Judicial Activity of the International Court of Justice in 2012: A Year of Human Rights Cases, The Italian Yearbook of International Law 22 (2012), 223. 29 Yuval Shany, Assessing the Effectiveness of International Courts: A Goal-bases Approach, American Journal of International Law (AJIL) 106 (2012), 225, 270. 30

Michal Bobek, Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice, Common Market Law Review 45 (2008), 1611, 1613.

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a federal-type structure in Europe.31 This is deemed an achievement of bold judicial creativity on behalf of the CJEU itself.32 Notwithstanding the growing ambitions of the CJEU to also act as a human rights court, it appears that in order to retain its efficiency, the ECtHR has little room to manoeuvre away from the constitutionalist road ahead. Judicial activism of international regional courts is enabled by the phenomenon whereby States are the architects of the various human rights treaties,33 they have little say thereafter in how the treaties are implemented. In the European context the possibility to protect human rights in parallel at the Strasbourg and Luxembourg Courts may lead to the conclusion that the ECtHR, in order to retain its ‘flagship’ status as the main guarantor of fundamental rights in Europe, may have to review some doctrines applied in earlier jurisprudence. When writing about the limits of the EU Charter of Fundamental Rights,34 Koen Lenaerts refers to an essential watershed between the human rights protection principles within the EU and the Council of Europe. A regressive interpretation of the Charter [the EU Charter] is thus prohibited. In that respect, the fact that the ECtHR may itself follow a regressive interpretation of theECHR is irrelevant. In the realm of fundamental rights, it is precisely the prohibition of regression that crystallises the constitutional autonomy of the Union.35

It appears, that in order to ‘crystallise’ its role as a semi-constitutional court, the ECtHR has to abandon the ‘relativism’ contained in some analytical techniques or in interpreting some fundamental rights. Otherwise, the ECtHR risks being ‘regressed’ to the status of an international adjudicatory court, whereas the constitutional princi-

31 Hjalte Rasmussen, Between Self Restraint and Activism: A Judicial Policy for the European Court, European Law Review 13 (1988), 28, 28. 32

Oreste Pollicino, Legal Reasoning of the Court of Justice in the Context of the Principle of Equality between Judicial Activism and Self-Restraint, German Law Journal 3 (2004), 283, 284. 33

For discussion of how courts can in principle divert the original intentions of States when creating an international treaty, see an example of how the International Court of Justice (ICJ) can invoke fragmentation of public international law – Andreas Zimmermann, Human Rights Treaty Bodies and the Jurisdiction of the International Court of Justice, The Law and Practice of International Courts and Tribunals 12 (2013), 5. 34 35

Charter of Fundamental Rights of the European Union, 7 December 2000, OJ 2000 364, 1.

Koen Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European Constitutional Law Review 8 (2012), 375, 402.

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ples would emerge from the Luxembourg Court.36 In the words of Jean-Paul Costa it is a result imagined by the new European (post-Lisbon) architecture of human rights protection that both the CJEU and the ECtHR need to interpret and apply the EU Charter and the ECHR as harmoniously as possible.37 Within the debate about the possible accession of the EU to the ECHR the constitutional function of the ECtHR becomes a matter of necessity, essential for eliminating the doubts whether there is indeed continuing convergence between the two European human rights systems.38

D. What about Individual Justice?

The constitutionalist approach also receives support from studies which critically assess how the Court has analysed certain individual cases. For example, Alexander Green questions the concept of ‘balancing’ competing rights, because, in his view, it is not sufficient to appeal to certain considerations ‘outweighing’ the others.39 In his view the Court is using predominantly moral reasoning, which ought to be replaced by value-based reasoning.40 Although Green does not specifically mention this, constitu-36 An example of the non-regression v. relativism between the two regional courts is evident in the approach towards asylum seekers in Europe from the Islamic countries – in applications where the asylum seeker claims conversion to Christianity and the prospect of being sentenced to death upon return to the home country, as the Qur’an prohibits conversion to other religions. The Court of Justice of the European Union (CJEU) upholds the position that nobody can be compelled to conceal his/her faith in order to avoid prosecution – consequently, expulsion is not authorised. The ECtHR suggests that an individual who has converted to Christianity can be returned to the home country even if the person needs to conceal their religious conviction – consequently the person can be expelled. This contrast of opinions mirrors the conflict between adjudication based on, respectively, values and morals – contrast the ECtHR judgment in ECtHR, F.G. v. Sweden, Judgment of 16 January 2014, available via: http://www.echr.coe. int/ECHR/EN/hudoc (accessed on 26 January 2014) with the CJEU Joined Cases (C-71/11) and (C-99/ 11), Federal Republic of Germany v. Y (C-71/11) and Y (C-99/11), Judgment of 5 September 2012, available at: http://curia.europa.eu/juris/liste.jsf?language=en&num=C-71/11 (accessed on 26 January 2014). 37 Jean-Paul Costa, The Relationship between the European Court of Human Rights and the National Courts, EHRLR18 (2013), 264, 274. 38

See for reference Jörg Polakiewicz, EU law and the ECHR: Will the European Union’s Accession square the Circle?, EHRLR 18 (2013), 592. 39 Alexander Green, A Philosophical Taxonomy of European Court of Human Rights Law, EHRLR 17 (2012), 71, 80. 40

Although Green implies that more value-based standards are needed from the Strasbourg Court, one needs to point out that in ‘difficult’ cases the ECtHR does not compromise value-based approaches – take for instance the statement, that even a public emergency threatening the livelihood of an entire nation may not justify torture – the so-called absolute prohibition of torture doctrine.

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tional reasoning is based on values, whereas moral reasoning is not. Another way to define the distinction is to suggest that moral reasoning is directed towards finding a practical solution for the concrete case, whereas the value-based reasoning departs from broader considerations. For human rights activists and attorneys who are concerned about delays in the implementation of the Court’s judgments, a constitutional ECtHR means fewer judgments at the European level and more at the domestic level, where the instruments for securing compliance with court judgments are not as fragile.41 The predominance of the constitutional function does not necessarily mean that the European Human Rights Court’s adjudicatory function must give way. Although many (if not the majority of) judgments are still not significant from the perspective of developing or discussing various human rights standards, they do provide individual justice. Recent judgments in the so-called repetitive cases follow the standard formulation of noting that the Court has frequently found violations in comparable cases, the government has not put forward any new arguments, and thus there is no reason to reach a different conclusion.42 The absence of constraints from political or other stakeholders enables the Court to exercise judicial activism both regarding general and individual measures beyond originally bestowed powers. It seems that hand in hand with increased constitutional authority the tools for providing individual justice become more diverse. There are a handful of judgments where the Court obligates the respondent government to apply a direct individual measure, without explaining the source of authority to divert from the concepts of the declarative nature of the judgments and leaving the discretion about the execution of the judgment to the domestic authorities. For example, in the case of Assanidze v. Georgia,43 a case brought by the former mayor of Batumi, the Court introduced for the first time a formulation that by its very nature, the violation 41

It has been argued, for example, that the supervision of the execution of the ECtHR’s judgments lacks efficiency – see 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 15 (2011), 448; it is questionable whether the broad range of stakeholders monitoring government compliance and implementation of ECtHR judgments is sufficient to increase general human rights compliance in a given country – see Elizabeth Mottershaw/Rachel Murray, National Responses to Human Rights Judgments: The Need for Government Co-ordination and Implementation, EHRLR 16 (2012), 639. 42

ECtHR, Bondarenco v. Moldova, Judgment of 14 October 2014, paras. 17–19, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 43

Id., Assanidze v. Georgia, Judgment of 8 April 2004, RJD 2004-II, 155.

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found in the instant case does not leave any real choice as to the measures required to remedy it.44 The Court ordered the respondent government to secure the applicant’s release at the earliest possible date. In the case of Aleksenyan v. Russia45 the applicant was the former head of the legal department of oil company Yukos and the Court obligated the government to release him immediately from detention due to illness (AIDS). In the case of Fatullayev v. Azerbaijan,46 brought to the Court by the founder and chief editor of two newspapers with wide circulation, the Court likewise obligated the government to release the applicant immediately. In 2013 the Court gave a directive for a specific individual measure in the case of Oleksandr Volkov v. Ukraine.47 The Court held that Ukraine needs to secure the applicant’s reinstatement in the post of Judge of the Supreme Court at the earliest possible date.48 Thus it is the applicants’ personal status that has led the Court in very rare instances to discriminatively apply a direct individual measure – we can say that this is a measure meant for the few and ‘chosen,’ where no apparent criteria of application are explained. Against the above background it seems that the discussion whether the ECtHR should choose a constitutional or adjudicative function must be considered over and the chapter closed. Expectations of various actors – where the national courts must be considered predominant – have already led the Court to assume a European standardsetting role. We may call this ‘implied constitutional competence.’ The new task for analysis is how far the Court has stretched this competence in the recent years. Finally there remains the popular (populist) question “in whose name do international courts decide?” Armin von Bogdandy and Ingo Venzke view as increasingly unsatisfactory an explanation that international courts decide in the name of States as

44

Ibid., para. 202.

45

ECtHR, Aleksanyan v. Russia, Judgment of 22 December 2008, available via: http://www.echr. coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 46

Id., Fatullayev v. Azerbaijan, Judgment of 22 April 2010, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 26 January 2014). 47

Id., Case of Olekjsandr Volkov v. Ukraine, Judgment of 9 January 2013, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 48

Ibid., para. 208 and resolutive part para. 9.

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subjects of the international legal order.49 In the author’s view, a constitutional ECtHR decides cases in the name of the European judicial order, as it receives legitimacy from the national courts, and citizens of the Council of Europe. The question to ask is not whether the European Human Rights Court should become a European semi-constitutional court, but rather what are the limits of its semi-constitutional function. From the theoretical perspective, it is a question fit for conditional international law theory,50 exploring why the constitutional function prevails and what effects it will produce for the European human rights order. This article will now explore, assuming that the ECtHR’s constitutionalist function is not a matter of ‘if’ but of degree, the effects it can potentially bring about in the legal orders of the Member States. We will see that the Court is not satisfied only with setting the constitutional standards, but occasionally undertakes the function of transforming the legal reality of some Member States to reflect these standards.

III. The Increase of Cases Exhibiting Constitutionalist Function A. Direct Constitutional Intervention

The case of Zornic v. Bosnia and Herzegovina51 was the first ever case in which the ECtHR requested a Member State to change a national constitutional norm, although it was not the first case where the Court criticised a national constitution because of its incompatibility with Convention principles.52 The Constitution of Bosnia and 49

Armin von Bogdandy/Ingo Venzke, In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification, EJIL 23 (2012), 7. 50

The conditional international law theory was introduced by Gregory Shaffer and Tom Ginsburg – see their article The Empirical Turn in International Legal Scholarship, AJIL 106 (2012), 1. 51 ECtHR, Case of Zornic v. Bosnia and Herzegovina, Judgment of 15 July 2014, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014) (Zornic). 52 The ECtHR’s constitutional role is implicit in several ‘old’ cases as well, although exceptionally. As early as in 1984 the Court criticised the obscurity and uncertainty of the state of national law in ECtHR, Malone v. The United Kingdom, Judgment of 2 August 1984, Series A, No. 82-A, 7. According to the Court, it could not be said with any reasonable certainty what elements of the powers to intercept telephone conversations were incorporated in legal rules and what elements remained within the discretion of the executive (para. 79). For recent cases, see, for example, the judgment where the Court established access to court (Art. 6 (1) ECHR) and freedom of speech (Art. 10 ECHR), violations when the President of the Hungarian Supreme Court was removed from the office in the midst of Hungarian constitutional reforms and directly as a result of constitutional norms – ECtHR, Baka v. Hungary,

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Herzegovina53 makes a distinction between “constituent people” (persons who declare affiliation with Bosniacs, Croats, and Serbs)54 and ‘others’ (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood, or other reasons). The applicant did not declare affiliation with any of the ‘constituent people’ but referred to herself simply as a citizen of Bosnia and Herzegovina – thus she was ineligible to stand for election to the second chamber of the State parliament (the House of Peoples) and to the collective Head of State (the Presidency). In accordance with the Constitution (Articles IV § 1 and V), only persons declaring affiliation with a ‘constituent people’ are entitled to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina. On 29 June 2010, the Constitutional Court of Bosnia and Herzegovina declared that it lacked jurisdiction to examine a discrimination complaint concerning the appellant’s ineligibility to stand for election to the Presidency on the ground of his ethnic origin. The applicant then brought a claim to the ECtHR arguing discrimination and relying on Article 14 ECHR,55 Article 3 of Protocol No. 1,56 and Article 1 of Protocol No. 12.57

Judgment of 27 May 2014, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 53

Bosnia and Herzegovina consists of two autonomous entities, the Federation of Bosnia and Herzegovina and the Republika Srpska, and a third region the Brčko District, governed under local government. 54 Bosniacs were known as Muslims until the 1992–1995 war. The expressions ‘Croat’ and ‘Serb’ are normally used to refer to members of the ethnic groups, regardless of their nationality. 55 Art. 14 ECHR provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. 56 Art. 3 Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS No. 9. 57 Art. 1 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms prohibits general discrimination, not only in reference to the rights guaranteed in the Convention (this protocol is not ratified by significant number of the Member States), in the following wording: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 2000, ETS No. 177.

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Having rejected the government’s claim on the matter of admissibility,58 the Court proceeded to find that there had been discrimination both regarding the applicant’s ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina59 and the Presidency.60 By finding a violation, the Court attached importance to the fact that it had already previously issued a judgment finding a similar violation of the right to stand for election. In the analogous case of Sejdić and Finci v. Bosnia and Herzegovina61 the Grand Chamber found similar violations.62 The four and a half years which separate these two judgments have led to a fundamentally different type of compliance, which the Court expressly required in its recent judgment. In the Sejdic and Finci judgment the Court was satisfied with declaring that the constitutional provisions governing the election process were discriminatory and in breach of the Convention provisions. The Court has adopted a different approach in the Zornic judgment. Where the national Constitutional Court declined jurisdiction, the international court accepted jurisdiction and thus effectively undertook the national constitutional review function. As far as context is concerned, it must be noted that after the Sejdic and Finci judgment the Committee of Ministers, supervising the implementation of the judgment, issued three resolutions63 calling for general measures to avoid repetitive violations. All three of these resolutions call upon the authorities of Bosnia and Herzegovina to bring about constitutional and legislative changes. The last resolution employed the following wording: “[…] to ensure that the constitutional and legislative framework is immediately brought in line with the Convention requirements.”64

58 The government claimed that the applicant should have turned to the Constitutional Court before lodging the application to the ECtHR. The European Human Rights Court took the view that since the Constitutional Court declined jurisdiction, there were no objective grounds for the applicant to try the domestic constitutional remedy – ECtHR, Zornic (note 51), para. 21. 59

Ibid., para. 32.

60

Ibid., para. 36.

61

Id., Sejdic and Finci v. Bosnia and Herzegovina, Judgment of 22 December 2009, RJD 2009-VI, 73.

62

Ibid., paras. 47–49 and 56 respectively.

63

Committee of Ministers, Interim Resolution CM/ResDH(2011)291 of 2 December 2011; id., Interim Resolution CM/ResDH(2012)233 of 6 December 2012; and id., Interim Resolution CM/ResDH(2013)259 of 5 December 2013; available via: http://www.coe.int/t/cm/adoptedTexts_ en.asp (accessed on 24 March 2015). 64

Id., Interim Resolution CM/ResDH(2013)259 of 5 December 2013, available via: http://www. coe.int/t/cm/adoptedTexts_en.asp (accessed on 24 March 2015).

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Prior to this, in 2008, Bosnia and Herzegovina signed and ratified a Stabilisation and Association Agreement with the EU and committed itself to addressing the European Partnership priorities. Bosnia and Herzegovina declared its intent to amend electoral legislation regarding members of the Bosnia and Herzegovina Presidency and House of Peoples delegates to ensure full compliance with the ECHR and the Council of Europe post-accession commitments.65 Although the country has not committed to change its constitution, merely the electoral laws, the change of constitution is now expressly required by the recent ECtHR judgment. The Court has directed the respondent government to constitutional change in the following wording: However, now, more than eighteen years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay.66

What we see here is the transformation of constitutional function into constitutional intervention, and as such it raises several fundamental questions. First, does the possibility of constitutional intervention from an international court change the doctrine of an effective domestic remedy? Article 13 ECHR67 has consistently been interpreted as ‘not going as far’ as to guarantee a remedy allowing a challenge to primary legislation before a national authority on the ground of being contrary to the Convention.68 Based on the Zornic judgment it can be argued that Article 13 ECHR loses its meaning – despite there being no requirement to provide a national remedy to challenge incompatibility of primary legislation (as well as the national constitution) before a national authority, recourse to the ECHR leaves the national remedy without purpose. Secondly, by rejecting the government’s claim about the need to exhaust domestic remedies – with the view that the domestic courts will in any event declare absence of

65

EC Directive 2006/55 of 19 March 2008, OJ 2008 L 080, 18.

66

ECtHR, Zornic (note 51), para. 43.

67

Art. 13 ECHR provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. 68

See, for example: ECtHR, A. and Others v. The United Kingdom, Judgment of 19 February 2009, RJD 2009-II, 137, para. 135.

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competence –, does the Court now allow applications based on the doctrine of abstract complaints, whereby individuals can apply directly to an international court?69

B. The Questions of Compliance

Third, does the Court exercise constitutional intervention consistently and in a non-discriminatory manner? The answer to this question is negative. It is not apparent from the Court’s recent case law why in certain situations the Court has deeply interfered with political (constitutional) sovereignty and in other situations considers that even intervention into judicial autonomy would go too far. For example, in the case of Peter v. Germany70 the Court was, without any specific reasoning, satisfied that the period of four and half years for reviewing the constitutionality of a legal norm is unusually but not unreasonably long.71 When the Court is prepared to accept that the German Federal Constitutional Court (Bundesverfassungsgericht) had to deal with a complex problem and thus the delays in domestic proceedings were justified, the Court’s impatience towards Bosnia and Herzegovina in complying with the request to bring its electoral laws into compliance with the Convention provisions calls for an explanation. The absence of such explanation makes the new methodology of constitutional intervention weak. It is especially so as the Court must be aware that securing compliance with its ‘difficult’ judgments is its ‘Achilles heel.’ Alongside the growing number of judgments interfering with domestic legislation and calling for legislative change, grows the ‘domestic’ resistance towards compliance. In the absence of effective mechanisms to secure full implementation of the Court’s judgments, the most persuasive vocabulary the Court can use is: “the Court, like the Committee of Ministers, is

69

For example, the Court has accepted so far the possibility to submit ‘abstract’ complaints against secret surveillance laws, enabling the authorities to monitor electronic communication or phone conversations – despite the fact that the individual bringing the complaint has not been directly affected – see ECtHR, Natsev v. Bulgaria, Judgment of 16 October 2012, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 70

Id., Peter v. Germany, Judgment of 4 September 2014, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 26 January 2014). 71

Ibid., para. 47.

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anxious to encourage the speediest and most effective resolution of the situation in a manner which complies with the Convention’s guarantees.”72 There certainly seems to be a correlation between the degree of intrusion into constitutional and legislative sovereignty and the willingness to comply on behalf of the Member State. The number of repetitive cases is growing due to the reluctance of States to comply. The Zornic case is itself already a repetition of Zejdic and Finci. In reference to the prisoners’ voting rights, the Court has in the case of Firth and Others v. The United Kingdom73 noted that the legislative changes have not yet been implemented and consequently the Court does not even need to present any detailed analysis of the violation.74 The issue of non-compliance is also evident in the context of pilot judgments,75 when the respondent governments or legislatures remain inactive towards the required change of policies or laws. For example, in the case of Karagjozi and Others v. Albania,76 the Court noted that although the government was requested in March 2013 to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, the Committee of Ministers’ decisions and interim resolution deplore the limited progress in the execution of the pilot judgment in the same question.77 72 ECtHR, Zornic (note 51), para. 42, the same formulation was used in ECtHR, Greens and M.T. v. The United Kingdom, Judgment of 23 November 2010, RJD 2010-I (extracts), 57, para. 112. The latter judgment concerned the blanket prohibition on prisoners to take part in elections. The Court obligated the United Kingdom government to bring its legislation into accord with the ECtHR judgments in respective matter – there is express requirement to amend the legislation. The judgment remains unenforced and under the supervision of the Committee of Ministers at the time of writing this article. 73

Id., Firth and Others v. The United Kingdom, Judgment of 12 August 2014, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 74 The part of the judgment dealing with the merits consists of only two short passages – see ibid., paras. 14–15. 75 The Court adopts a pilot judgment when there are already many judgments on the merits about similar cases originating from one Member State and there is reason to believe that the problem complained of may affect a specific group of people. So in the pilot judgment the Court gives directives for domestic authorities to apply general measures in order to avoid repetitive applications. 76

ECtHR, Karagjozi and Others v. Albania, Judgment of 8 April 2014, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 77

The violation was first established in ECtHR, Manushaqe Puto and Others v. Albania, Judgment of 31 July 2012, paras. 23–53, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014).

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The constitutional function of the ECtHR, in the author’s view, does not necessarily mean the power to request that the Court’s findings are effectively put into action by the political establishment. These are two separate functions but through constitutional and legislative intervention the Court starts to exercise legislative function.

C. Recent Legislative Intervention

In 2014, the ECtHR’s case law was dominated by increased intervention into domestic legislation and judicial practices. Such interventions are no longer isolated exceptions and seem to represent the ‘mainstream’ approach.78 The following examples from July 2014 judgments, illustrate the trend towards the increased frequency of intervention into domestic affairs. The Court in these July 2014 judgments requested legislative changes or adoption of new laws in a variety of areas: Turkey was required to immediately pass new regulation regarding the use of nerve gas when dispersing mass demonstrations;79 Slovenia was instructed to introduce, within one year, legislative amendments to enable individuals to recover their ‘old’ foreign-currency savings;80 Croatia needed to take appropriate legislative and/or other general measures to secure a rather delicate balance between the interests of landlords, including their entitlement to derive profit from their property, and the general interest of the community;81 Russia had to set up an effective domestic remedy or combination of such remedies securing adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments

78 The doctrines of pilot judgment and structural problem, formulated as a result of the Court’s internal evolution and interpretation of the founding texts, empower the Court to request the Member States to apply general measures as a result of the violation. 79 ECtHR, Ataykaya v. Turkey, Judgment of 22 July 2014, paras. 71–75, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 80

Id., Aliśić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia, The Former Yugoslav Republic of Macedonia, Judgment of 16 July 2014, resolutive part No. 11, available via: http://www.echr. coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 81

Id., Statileo v. Croatia, Judgment of 10 July 2014, para. 165, available via: http://www.echr.coe. int/ECHR/EN/hudoc (accessed on 26 January 2014).

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imposing obligations in kind on the State’s authorities, in line with the Convention principles as established in the Court’s case law.82 In terms of judicial practices the Court in July 2014 required Romania to ensure that mentally disabled persons are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body;83and further recommended that Russia take necessary general measures to limit detention periods so that they remain connected to the ground of detention applicable in an immigration context.84 Every constitutional court has also the obligation to introduce, if social circumstances so require, new legal doctrines. The Court has fulfilled this mission by explaining that the French prohibition of the wearing of burqa and niqab in public places is based on the elevation of the principle of ‘living together’ (le “vivre ensemble”).85 Such constitutional activism in introducing new fundamental doctrines may run counter to the Court’s overall authority of expanding the Convention rights.86 In the absence of strong counterbalancing actors, albeit scholarly criticism, the Court’s own interpretation of its mandate in the context of the ECHR Articles 1 and 4687 remains unchallenged.

82 Id., Gerasimov and Others v. Russia, Judgment of 1 July 2014, resolutive part para. 12, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 83

Id., Centre For Legal Resources of Behalf of Valentin Campeanu v. Romania, Judgment of 17 July 2014, para. 161, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 84 Id., Kim v. Russia, Judgment of 17 July 2014, para. 72, available via: http://www.echr.coe.int/ ECHR/EN/hudoc (accessed on 26 January 2014). 85

Id., Affaire S.A.S. v. France, Judgment of 1 July 2014, paras. 157–159, available via: http://www. echr.coe.int/ECHR/EN/hudoc (accessed on 26 January 2014). 86

For discussion about the expansion of the Court’s powers, on the example of issuing pilotjudgments, see 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 19 (1) (2008), 125. 87 According to Art. 1 ECHR, the high contracting parties shall secure to everyone under their jurisdiction defined in the Convention, and, according to Art. 46 (1) ECHR, the parties undertake to abide by the final judgment in any case to which they are parties.

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The seven judgments from July 2014 exercising constitutional authority represent about 7% of the Chamber and Grand Chamber judgments88 from the given period. Contrasted with the number of around ten judgments exercising constitutional authority within the three year period from 2010 to 2012,89 this clearly represents a new trend towards an increase in the Court’s constitutional function. Another obvious trend is the increased attention of the national courts towards general standards elaborated by the ECtHR. The preceding decade has demonstrated a shift from distrust on behalf of national courts to reliance on the ECtHR’s constitutional standards.90 In the author’s view, the constitutional function of the ECtHR should not be mixed with the empowerment to require legislative or constitutional changes from the Member States. The proposition that the ECtHR is predominantly a constitutional court finds backing in academic writings – see for example the doctrine of ‘constitutional pluralism’ arguing that the ECtHR exercises predominantly constitutional function and needs to balance this with the mixture of national constitutional systems.91 In the author’s view, the fundamental issue concerning the future role of the ECtHR in European human rights system is about the extent and volume of judgments requiring legislative and constitutional change from the Member States. There seems sufficient 88

We do not count here the Committee judgments, which by their goal exercise purely adjudicative function. 89

The author has previously addressed the matter of ECtHR developing jurisprudence in establishing a structural problem, considering that the approach was still more of an exception requiring more elaborate criteria when the Court undertakes the ‘structural problem’ exercise – see Mart Susi, The Definition of a Structural Problem in the Case Law of the European Court of Human Rights, German Yearbook of International Law 56 (2013), 385. 90 Contrast the writings about national judicial systems, referred to earlier in this article, with the reluctance of national courts to rely on the Strasbourg case law – see Gavin W. Anderson, Using Human Rights Law in Scottish Courts, European Law Review Human Rights Survey 25 (2000), 3; or Iain Cameron, The Swedish Experience of the European Convention of Human Rights since Incorporation, International and Comparative Law Quarterly 48 (1999), 20. 91

See Alec Stone Sweet, On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court (2009), Yale Law School Faculty Scholarship Series, Paper 71, available at: http://digitalcommons.law.yale.edu/fss_papers/71 (accessed on 26 January 2014); or Steven Greer/Luzius Wildhaber, Revisiting the Debate about ‘Constituionalising’ the European Court of Human Rights, Human Rights Law Review 12 (2012), 655. See Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights, Human Rights Law Journal 23 (2002), 161.

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evidence – from the resolutions of the Committee of Ministers and the Court’s own judgments addressing the matter of non-compliance with requests for such measures, as well as from the general theoretical considerations on State sovereignty – that the political establishments of the Member States are not willing to immediately comply with these requests, if at all. The future of compliance with the legislative and constitutional change requests may depend on the ‘support’ from national courts. If the national courts start to endorse the Court’s views on the need for such change, then supranational constitutionalism will prevail.92 The trend of the ECtHR to test the limits of ‘constitutional’ intervention is obvious and the author predicts that judgments requesting change of laws or judicial practices will increasingly come to dominate the Court’s jurisprudence.

IV. Concluding Remarks The time has come to end the debate whether the ECtHR is a constitutional court. A variety of factors and stakeholders indicate that the Court’s function is predominantly constitutional – bearing in mind the political declarations, absence of counterbalancing factors to the Court’s constitutional ambitions, the growing tendency of national courts to act as ‘Convention courts,’ the theoretical considerations of scholars, and the Court’s own interpretation of its goals on the basis of founding documents. More precisely we may/can say that the ECtHR has ‘implied constitutional competence.’ Such implied constitutional competence is a different from legislative intervention, which more closely resembles a legislative function. While there appears to be consensus on the need for the ECtHR’s constitutional function, the matter of necessity of legislative and constitutional intervention is unclear. The Court’s intervention into Member States’ domestic judicial affairs is increasingly occurring. The dynamics of requiring States to change laws or modify judicial practices has lead the Court to ‘test’ the limits of its powers – recently the Court has 92

Generally taken, more than the endorsement by national courts is needed to secure compliance with the ECtHR judgments. International law enforcement cannot be simply resolved by the courts, political action is needed – see, for context: 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. As a matter of logic, even if the national courts wish to abide by the ECtHR standards and recognise in principle the rights of prisoners to vote, this right cannot be secured without the legislature adopting respective normative change.

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considered it possible to require changes/a change of national constitutional norm. This constitutional intervention into domestic laws and judicial practices increases non-compliance from Member States’ political establishments. This article proposes a hypothesis that the legislative and constitutional intervention will not succeed as an overall judicial methodology, unless the national courts start endorsing the Court’s requirements through domestic judgments.

The Silence of the Treaties: General International Law and the European Union PAUL GRAGL(

ABSTRACT: This article examines the silence of the EU Treaties on the implementation and functions of general international law in the European Union legal order. Given the EU’s growing activity on the international plane which is subject to the rules of international law, it is remarkable that neither the Treaty drafters nor any subsequent Treaty amendments included an ‘incorporation clause’ in primary Union law that would clarify the legal status and rank of general international law within the EU. Regarding the functions of general international law, this article explores whether this silence has an impact on subsequent Member State practice in contravention of the Treaties, and on the autonomous status of EU law, which provides for a comprehensive procedural ‘toolbox’ in order to redress infringements, and thus excludes the fall-back to countermeasures under international law between the Member States and the Union and between the Member States inter se. This article eventually concludes that the inclusion of an incorporation clause may have prevented the Court of Justice of the European Union from following a flexible approach towards international law, whilst the silence of the Treaties with respect to the functions of international rules remains irrelevant for the autonomy of EU law. KEYWORDS: European Union Law, General International Law, Reception and Implementation of International Law, Monism and Dualism, Subsequent State Practice, Self-Contained Regimes, Relationship between EU Law and General International Law

I. Introduction International legal norms may influence domestic legal orders in very different ways. Especially general international law1 is of fundamental importance for the functioning of the international legal system. Due to its ‘omnipresence’ and its ( Lecturer, Department of Law, Queen Mary, University of London. I would like to thank the reviewers and Violeta Moreno-Lax for their insightful observations on a previous draft. 1

In the context of this contribution, general international law refers to all international norms that are not ‘treaty law,’ especially customary international law and general principles of law.

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seminal character in forming the background of the international legal order,2 general international law and, in particular, its most basic rules, such as the prohibition of the use of force and State responsibility, have been assigned a substantial ‘constitutional quality’ within different municipal legal orders.3 The implementation and functions of general international law within the European Union’s (EU) legal system are nevertheless not entirely clear and remain somewhat obscure. With respect to the question of implementation, attentive readers of the Union Treaties4 might have noticed that these very Treaties remain entirely silent on this matter,5 given that there is no provision comparable to Article 216 (2) Treaty on the Functioning of the European Union (TFEU), governing the legal effects of international treaties for the Union, on general international law. Unlike many constitutions of the Member States,6 the Treaties lack an ‘incorporation clause’ which typically forms an integral part of the domestic legal orders of sovereign nation-States7 and governs the implementation of international law within domestic law, and thus leave the further shaping of rules concerning the adoption and reception of general interna2

International Law Commission (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, UN Doc. A/CN.4/L.682 (2006), para. 122. 3

Robert Uerpmann-Wittzack, Völkerrechtliche Verfassungselemente, in: Armin von Bogdandy/ Jürgen Bast (eds.), Europäisches Verfassungsrecht: Theoretische und dogmatische Grundzüge (2nd ed. 2009), 177, 178. 4 Treaty on European Union, 9 May 2008, OJ 2008 C 115, 13 (consolidated version) (TEU); Treaty on the Functioning of the European Union, 26 October 2012, OJ 2012 C 326, 47 (consolidated version 2012) (TFEU). 5 Alessandra Gianelli, Customary International Law in the European Union, in: Enzo Cannizzaro/Paolo Palchetti/Ramses A. Wessel (eds.), International Law as Law of the European Union (2012), 93, 93. 6

Cf., e.g., Art. 25 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 11 July 2012, BGBl. I, 1478; Art. 9 (1) Austrian Constitution (Bundes-Verfassungsgesetz), StGBl. Nr. 450, BGBl. Nr. 1; Art. 10 (1) Italian Constitution (Costituzione della Repubblica Italiana), Gazzetta Ufficiale n. 298 of 27 December 1947; Art. 2 (2) Constitution of the Hellenic Republic (Σύνταγμα της Eλλάδας), Official Gazette of the Hellenic Republic A’120 of 27 June 2008. 7 Kirsten Schmalenbach, Die Europäische Union und das universelle Völkerrecht, in: Werner Schroeder (ed.), Europarecht als Mehrebenensystem: Beiträge zum 7. Österreichischen Europarechtstag 2007 (2008), 67, 67–68; Pieter Jan Kuijper, “It Shall Contribute to … the Strict Observance and Development of International Law …”: The Role of the Court of Justice, in: Allan Rosas/Egils Levits/Yves Bot (eds.), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law (2013), 589, 589–590.

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tional law and decisions of international organisations to the Court of Justice of the European Union (CJEU) and its judges in Luxembourg.8 Even though the European Parliament in 1997 called for a clear statement on the relationship between public international law and EU law to be written into the Treaties,9 this call went utterly unheeded. The question remains, however, whether this silence represents a legal problem that has to be dealt with, or whether this silence allows the CJEU a more flexible approach towards the reception and implementation of international norms. Part II of this contribution will therefore determine the status within EU law of general international norms which bind the EU vis-à-vis the outside world, and what effort the EU legal order makes to ensure that the Union’s international legal obligations are faithfully adhered to in the light of the absence of such a provision. In contrast to the implementation of general international law within Union law, the question of the former’s function within the latter is a completely different one. Seeing that the Treaties also remain silent on this matter, one might ask if and to what extent the norms of general international law can be drawn upon, either directly or by analogy, to fill any gaps which EU law leaves with regard to the relations between the EU and its Member States as well as between those Member States inter se within the scope of application of the Treaties. While most constitutions of federal States proclaim to exhaustively regulate intra-federal legal relations,10 leaving no room for the application of general international law (except where the federal constitution permits it),11 the quasi-federal legal order of the EU is different, as it simply does not 8 Pieter Jan Kuijper, Customary International Law, Decisions of International Organisations and other Techniques for Ensuring Respect for International Legal Rules in European Community Law, in: Jan Wouters/André Nollkaemper/Erika de Wet (eds.), The Europeanisation of International Law: The Status of International Law in the EU and its Member States (2008), 87, 87. 9 European Parliament, Resolution on the relationships between international law, Community law and the constitutional law of the Member States, 27 October 1997, OJ 1997 C 325, 26, para. 14. 10

Cf. Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 1, 14, 133; id., BVerfGE 34, 216, 53; Stefan Talmon, Die Grenzen der Anwendung des Völkerrechts im deutschen Recht, JuristenZeitung 68 (2013), 12, 16. 11

Cf. Art. III sec. 2 Constitution of the United States of America, giving the US Supreme Court jurisdiction over interstate disputes, which applied customary international rules to resolve border disputes (e.g. US Supreme Court, Rhode Island v. Massachusetts, 37 U.S. 657 (1838)), or disputes regarding water rights (e.g. US Supreme Court, Kansas v. Colorado, 185 U.S. 125 (1902)) between two states. Cf. also Art. 15a (3) Austrian Constitution, stating that the principles of the international law of treaties are applicable to arrangements between the federation and the states (e.g. Constitutional Court (Verfassungsgerichtshof), VfGH A13/96, VfSlg 15.309).

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exhaustively regulate the relations between the Member States. Consequently, certain Member States, which might have an interest in resolving legal disputes with either other Member States or the Union itself not on the basis of EU but general international law, could take advantage of this gap to the detriment of EU law. Recourse to countermeasures and the instruments provided for by general international law in order to respond to violations of international obligations could undermine the more sophisticated dispute settlement mechanisms enshrined in the EU Treaties. For instance, even though Article 7 Treaty on European Union (TEU) has been introduced into the Treaties to respond to serious breaches of fundamental Union values after the so-called ‘EU-XIV Sanctions’ had been imposed against Austria in the year 2000, this latter example could encourage the Member States to circumvent EU law and to rely on general international law to settle their disputes. Especially the Kadi saga is living proof that, for example, the United Kingdom – for the obvious reason of efficiently combating international terrorism – would rather see international law prevail over European Union law at the end of the day in particular instances.12 Part III therefore examines whether recourse to the rules of general international law besides the EU’s own dispute settlement mechanisms is permissible and whether such a step constitutes in fact a practical and viable option for the Member States. Part IV eventually summarises the findings of this contribution and draws conclusions on what the silence of the Treaties on both the implementation and the function of general international law within the EU legal order means for the latter’s proper functioning.

II. The External Perspective: The Question of Implementation A. Strict Observance or Indifference?

The silence of the Treaties on the way general international law may or may not be received within the EU’s legal order is not a mere hypothetical problem since the Union interacts with the outside world and therefore has to abide by the rules of the international community. At the outset, it is of course obvious that the Union was 12

Court of First Instance (CFI), Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, 2005 ECR II-3649, para. 217.

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indisputably conceived as an international organisation, which did not require a comprehensive and clear provision on its relationship with the ‘rest’ of international law. As an – admittedly autonomous – subsystem of the international legal order, the EU system hence remains part of the ‘primeval soup’ of general international law (lex generalis) and constitutes a closed and specialised legal order within the universal system (lex specialis).13 However, as the distance from the ‘maternal’ international legal order grew and the European Union became more ‘domestic’ in nature, a specification on the role of general international law within Union law may have been useful. The Lisbon Treaty14 eventually introduced two noteworthy references to general international law in the Treaties, namely Articles 3 (5) and 21 TEU, which set a pivotal agenda for the EU’s relationship with international law and the wider world.15 These provisions flesh out the Union’s commitment to comply with and respect general international law, and therefore to not ignore the international legal order as ‘the law of the others.’16 Yet, these provisions nevertheless fail to answer the question how general international law is to be implemented within European Union law, which prevents us from considering these provisions as ‘incorporation clauses.’ One could presume that the absence of such a provision may mirror the Treaty framers’ indifference toward international law. There is per se nothing wrong with such indifference or even a dualist stance towards international law, but the downplaying of the relevance and applicability of international law could indeed be a cause for concern.17 One may thus ask why this is so and whether that failure in codification could lie in the idiosyncratic position which general international law holds within Union law.18 But maybe there is more to that plain reason than meets the eye: Perhaps the Treaty drafters thought that ‘loose lips might sink ships’19 and therefore had sensible reasons 13

Schmalenbach (note 7), 74.

14

Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, OJ 2007 C 306, 01. 15

Piet Eeckhout, EU External Relations Law (2011), 96.

16

Schmalenbach (note 7), 68.

17

Jan Klabbers, Völkerrechtsfreundlich? International Law and the Union Legal Order, in: Panos Koutrakos (ed.), European Foreign Policy: Legal and Political Perspectives (2011), 95, 97. 18 19

Gianelli (note 5), 95.

This phrase was used on United States propaganda posters during World War II to deter people from careless talk in public about ship movements.

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to omit any explicit reference to the status of general international law within the EU legal order. The subsequent section will try to provide an answer to these questions.

B. From Initial Openness to Practical Flexibility

As Aristotle said quite rightly, it is obvious that it is inconceivable for anybody to live outside society or to have no need of it because of self-sufficiency.20 The same is true of the European Union and its embedment into the international legal order. Lacking a provision which would somehow govern the EU’s relationship with general international law and the latter’s implementation in the former, the CJEU necessarily had to fill these gaps through its jurisprudence in order to be able to interact with the ‘outside world.’ In this vein, the provision on the reception of general international law within Union law, parallel to that of treaty norms (Article 216 (2) TFEU), can now be found in the continuously developing case law of the Luxembourg Court. The Court’s early case law was informed by openness and respect, and – especially in cases relating to the exercise of jurisdiction on the basis of the territoriality principle21 – it applied customary international law almost as a matter of course.22 The CJEU subsequently recognised the binding force of international law as a source of EU law, for instance, when faced with questions of interpreting treaties or international decisions;23 in particular in specific areas such as the law of the sea;24 and in determining the precise meaning of international legal notions referred to by Union 20

Aristotle, Politics, Book I, chapter 2.

21

Cf., e.g., European Court of Justice (ECJ), Case 48/69, Imperial Chemical Industries Ltd. v. Commission, 1972 ECR 619; id., Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85, 125/85, 126/58, 127/85, 128/85, 129/85, A. Ahlström Osakeyhtiö and Others v. Commission, 1988 ECR 5193; CFI, Case T-102/96, Gencor Ltd. v. Commission, 1999 ECR II-753. 22

Kuijper (note 8), 595.

23

Cf., e.g., ECJ, Case C-432/92, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte S. P. Anastasiou (Pissouri) Ltd. and Others, 1994 ECR I-3087, para. 43; id., Case C-308/06, The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport, 2008 ECR I-4057, paras. 54–66; id., Case C-386/08, Firma Brita GmbH v. Hauptzollamt Hamburg-Hafen, 2010 ECR I-1289, para. 41. 24

Cf., e.g., id., Case C-286/90, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp, 1992 ECR I-6019, paras. 9–10; id., Case C-405/92, Etablissements Armand Mondiet SA v. Armement Islais SARL, 1993 ECR I-6133, paras. 13–14; id., Case C-37/00, Herbert Weber v. Universal Ogden Services Ltd., 2002 ECR I-2013, para. 34.

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law, inter alia, State responsibility25 and the immunity of international organisations.26 The most explicit expression toward the binding force and implementation of general international law, however, can be found in the seminal Racke case where the Luxembourg Court ruled that the EU must not only respect international law in the exercise of its powers in principle, but that the rules of customary international law are binding upon the Union institutions and form part of the EU legal order. Consequently, every piece of EU secondary legislation is also required to be in compliance with customary international law.27 This quite progressive position28 in Racke was then complemented by the decision in Opel Austria through which the customary principle of protection of legitimate expectations, as codified in Article 18 Vienna Convention on the Law of Treaties (VCLT),29 was basically transformed into a general principle of EU law.30 Until this point, the Court’s case law appears to be based on the notion that general international law was directly applicable within EU law – in accordance with a more or less monist approach.31 The European Union’s current practice in the area of general international law, however, could – colloquially speaking – be considered schizophrenic, as the seemingly functioning relationship between Union law and general international law appears to have come to an end in the Kadi cases,32 which are usually considered the

25

Cf., e.g., id., Case C-63/09, Axel Walz v. Clickair SA, 2010 ECR I-4239, paras. 27–28.

26

Cf., e.g., id., Case C-113/07, SELEX Sistemi Integrati SpA v. Commission and Organisation européenne pour la sécurité de la navigation aérienne (Eurocontrol), 2009 ECR I-2207, para. 110 (Opinion of AG Trstenjak). 27

Id., Case C-162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz, 1998 ECR I-3655, paras. 45–46.

28

Jan Wouters/Dries van Eeckhoutte, Giving Effect to Customary International Law through European Community Law, in: Jolande M. Prinssen/Annette Schrauwen (eds.), Direct Effect: Rethinking a Classic of EC Legal Doctrine (2002), 183, 202, and 210. 29

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

30

CFI, Case T-115/94, Opel Austria GmbH v. Council, 1998 ECR II-2739, para. 93.

31

Allan Rosas, The European Court of Justice and Public International Law, in: Wouters/Nollkaemper/de Wet (eds.) (note 8), 71, 80. 32 ECJ, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 2008 ECR I-6351 (Kadi I); id., Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v. Yassin Abdullah Kadi (Kadi II), available via: http://curia.europa.eu/juris/liste.jsf?num=C-584/10&language=de (accessed on 3 March 2015).

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‘dualist’ breaking-point in a hitherto ‘monist’ liaison.33 One might ask whether a classical ‘incorporation clause’ on general international law could have prevented the CJEU from following the flexible approach it applied in the Kadi cases and thus from protecting fundamental rights – albeit at the price of a consistent approach towards international law. In Kadi I, the CJEU in fact goes great lengths to highlight that the “bridges”34 between the international legal order and the EU remain intact. The Court accepts the primacy of Security Council resolutions in international law and emphasises that the EU’s obligations under international law remain valid as it certainly is bound by international norms35 – unless, of course, these international obligations fall foul of the Union’s own rights standards, prompting the CJEU to put up a ‘wall’ and thus to perform a normative closure vis-à-vis international law.36 But the Court’s refusal to give full effect to international law in the Kadi cases is nevertheless not arbitrary or whimsical; on the contrary, it is required by the principle of the rule of law and to be welcomed as a substantive entitlement of fundamental rights.37 By declaring that the listing and de-listing procedure of persons being suspected of terrorist activities on the UN level does not live up to the level of fundamental rights protection as guaranteed by judicial review,38 the CJEU’s final judgment in Kadi II could be seen as an EU countermeasure against the apparently illegal (yet valid) Security Council measure in question.39 One may therefore speculate that if an ‘incorporation clause’ had existed at the time Kadi was decided, the CJEU might have been misled to blindly take into account international law as it stood back then in the shape of the Security Council’s resolutions and, paradoxically, to thereby violate international law at the same time, namely international human rights. 33 Cf., e.g., Gráinne de Búrca, The European Court of Justice and the International Legal Order after Kadi, Harvard International Law Journal 51 (2010), 1, 44 et seq. 34

Achilles Skordas, Völkerrechtsfreundlichkeit as Comity and the Disquiet of Neoformalism: A Response to Jan Klabbers, in: Koutrakos (ed.) (note 17), 115, 139. 35

ECJ, Kadi I (note 32), paras. 290–297.

36

Skordas (note 34), 137–138.

37

N. Türküler Isiksel, Fundamental Rights in the EU after Kadi and Al Barakaat, European Law Journal 16 (2010), 551, 568. 38 39

ECJ, Kadi II (note 32), paras. 133–134.

Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011), 174–177.

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C. A Monist Reinterpretation in Place of an Incorporation Clause

In the light of the foregoing findings, one could consequently argue that it was exactly the continuing failure to include a norm parallel in wording and content to Article 216 (2) TFEU on the implementation of general international law into the Treaties that enabled the Court to decide the Kadi cases in the way it did: One can speculate that even though the existence of an explicit incorporation clause would be welcome from the viewpoint of legal theory and consistency (as this would have allowed for an obvious and continuing open approach in the CJEU’s case law), it was the very absence of such a provision which granted the Court the flexibility required to guarantee the protection of fundamental rights. This would mean that, in practice, the silence of the Treaties on the implementation of general international law makes an enormous difference with regard to the outcome of concrete cases. This is all the more confirmed by the Court’s settled case law in which it does in fact comply with general international law despite the absence of an incorporation clause. In Kadi II, for example, the CJEU holds that “the competent European Union authority must take due account of the terms and objectives of the resolution concerned and of the relevant obligations under that Charter [Charter of the United Nations] relating to such implementation”40 – notwithstanding the notable requirement under Article 47 Charter of Fundamental Rights41 that the EU judicature verify the allegations underlying the reasons provided by the Security Council.42 By acknowledging the importance of international peace and security yet requiring human rights standards to be safeguarded in its pursuit, the Court not only sidestepped the logically fallacious confrontation of security versus human rights,43 but also succeeded in implementing general international law, namely basic human rights norms, without relying on an incorporation clause.44 The CJEU has thus shown that taking 40

ECJ, Kadi II (note 32), para. 106.

41

Charter of Fundamental Rights of the European Union, 7 December 2000, OJ 2000 364, 1 (EU Charter). 42

ECJ, Kadi II (note 32), para. 119.

43

Arman Sarvarian, The Kadi II Judgment of the Court of Justice of the European Union: Implications for Judicial Review of UN Security Council Resolutions, in: Matej Avbelj/Filippo Fontanelli/ Giuseppe Martinico (eds.), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (2014), 95, 101. 44

One might counter this argument by stating that all the Court did was enforcing Art. 47 EU Charter, which is – after all – a norm of EU law. However, the right to an effective remedy and a fair trial as

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international law seriously is not tantamount to an unqualified deference to a seriously flawed regime.45 In fact, the Kadi saga did not undermine the UN system in particular and international law in general, but strengthened their transparency46 and legitimacy, and thus the unity of domestic and international law in a sense which is comparable to that of Kelsenian theory.47 This means that not only is an incorporation clause unnecessary for the EU’s compliance with international law, but also that the Court’s case law, despite the inexistence of such a clause, can be interpreted in a rather monist and international law-friendly way. Furthermore, a provision which explicitly designated the role of general international law in the ‘constitutional’ basis of the European Union and thus labelled its legal order as either ‘monist’ or ‘dualist’ could not exhaustively refer to all the different functions general international law has (for example, as an interpretative instrument or a potential yardstick for the invalidity of EU law). In other words, the diversity of roles international law can have would not allow for a single and satisfying provision in the EU Treaties. “Plurality by necessity,” as Gianelli puts it, therefore seems to describe the intricate relationship between general international law and the EU system in the best manner.48 Yet, even though Article 3 (5) TEU does not define the precise legal status of general international law within the Union’s hierarchy of norms,49 its specific wording may imply that international norms are incorporated into the EU’s legal order as such, and not as ‘international law of the European Union’ – in other words, it remains international law and continues to be a source of law of its own besides enshrined in this provision is well established in and thus inspired by global and regional human rights law; e.g., Art. 14 International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171, and Arts. 6 and 13 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 005. Cf. Dinah Shelton, Sources of Article 47 Rights, in: Steve Peers et al. (eds.), The EU Charter of Fundamental Rights: A Commentary (2014), 1200, 1200–1209. 45 Mattias Kumm, Rethinking Constitutional Authority: On the Structure and Limits of Constitutional Pluralism, in: Matej Avbelj/Jan Komárek (eds.), Constitutional Pluralism in the European Union and Beyond (2012), 39, 62–63. 46 Eileen Denza, Placing the European Union in International Context: Legitimacy of the Case Law, in: Maurice Adams et al. (eds.), Judging Europe’s Judges (2013), 175, 186–187. 47

Hans Kelsen, Principles of International Law (1952), 424–428.

48

Gianelli (note 5), 97–98.

49

Wouters/van Eeckhoutte (note 28), 186.

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‘genuine’ EU law.50 In the long run, the formula used in Article 3 (5) TEU will prove useful short of being a proper incorporation clause, as it simply mentions the Union’s obligations “[i]n its relations with the wider world,”51 and reminds the Court of the EU’s obligations under general international law, as identified in Racke.52

III. The Internal Perspective: The Question of Function A. The Various Functions of General International Law within EU Law

In contrast to the question of whether and how general international law is being received and implemented within the European Union legal order, this chapter enquires whether general international law can be used in a very particular function because of the absence of a provision on the EU-internal role of international law. At the outset, it should therefore be underlined that the existence (or the non-existence) of an implementation clause may well influence the role and functions of general international law within a given domestic legal order, but that such influence between an implementation clause and the domestic functions of international law need not necessarily exist. The example of the Federal Republic of Germany demonstrates that such a nexus between implementation and function should not be presumed lightly: Although Article 25 German Constitution (Grundgesetz) proclaims in a monistic way that “[t]he general rules of international law shall be an integral part of federal law,” and thus binds Germany vis-à-vis the outside world, this does not permit conclusions as to the applicability of general international law within the intra-federal relations between the German Länder or between them and the federal government. In this vein, the Federal Constitutional Court (Bundesverfassungsgericht) explicitly stated that these relations are exhaustively regulated by the Constitution and that general international law cannot even be applied analogously or subsidiarily in this respect.53

50

Astrid Epiney, Die Bindung der Europäischen Union an das allgemeine Völkerrecht, EuroparechtBeiheft 2 (2012), 25, 31. 51

Gianelli (note 5), 98.

52

ECJ, Kadi II (note 32), para. 103, and id., Case C-366/10, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change, 2011 ECR I-13755, para. 101. 53

Cf. FCC, BVerfGE 1, 14, 133; id., BVerfGE 34, 216, 53.

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The question, however, whether and to what extent general international law is applicable within domestic law and between federal entities, is largely determined by historical facts.54 Heinrich Triepel aptly acknowledged this circumstance when he argued that the existence and continuing validity of international legal elements were more likely in States originating in federations of former sovereign States, formerly interacting under international law, than in those States which only became federations after the collapse of a unitary State. The decisive element is that, in the former case, the federation only came into existence through express acts of sovereign States, which decided to relinquish their sovereignty, either partly or entirely, and to subject themselves to a newly formed supreme entity. In this case, it only makes sense that these States ‘bring along’ elements of international law into the new federation in order to keep the loss of sovereignty to a minimum – which is necessary to become part of the newly formed federation.55 The European Union, of course, is neither a State nor a federal State. It rather is a federal union,56 for the want of a better term, since all Member States still have the option to withdraw from the Union according to international law57 and Article 50 TEU, respectively. But be that as it may, the overall structure of the EU comes very close to Triepel’s example of a federal union of sovereign States in which general international law still plays a role. This is evidenced by the fact that the CJEU widely uses customary international law as providing rules of interpretation,58 most importantly to construe treaties with third countries to which the Union is a party,59 and secondary EU law giving effect to such treaties.60 The Court has, however, not even once 54

Albert Bleckmann, Grundgesetz und Völkerrecht (1975), 339.

55

Heinrich Triepel, Völkerrecht und Landesrecht (1899), 174.

56

Kalypso Nicolaïdis, “We, the Peoples of Europe …”, Foreign Affairs 83 (2004), 97, 102, and 105.

57

Pavlos Eleftheriadis, Federalism and Jurisdiction, in: Elke Cloots/Geert de Baere/Stefan Sottiaux (eds.), Federalism in the European Union (2012), 45, 46. 58

Cf., e.g., Kuijper (note 8), 92–93; Wouters/van Eeckhoutte (note 28), 191–194.

59

Cf., e.g., the case law on the use of Art. 31 (1) VCLT in ECJ, Case C-312/91, Procedural Issue Relating to a Seizure of Goods Belonging to Metalsa Srl., 1993 ECR I-3751, para. 12; id., Case C-416/96, Nour Eddline El-Yassini v. Secretary of State for the Home Department, 1999 ECR I-1209, para. 47; id., Case C-268/99, Aldona Malgorzata Jany and Others v. Staatssecretaris van Justitie, 2001 ECR I-8615, para. 35. 60 Cf., e.g., id., Case C-61/94, Commission v. Germany (International Dairy Arrangement), 1996 ECR I-3989, para. 52; id., Poulsen (note 24), paras. 9 and 11.

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applied the VCLT in its manifestation as customary international law61 when interpreting the EU Treaties themselves.62 Besides its interpretative function, the Court also uses general international law in a gap-filling role to close lacunae in specific Union law areas, for instance regarding the registration of seafaring vessels,63 the conditions for granting nationality,64 or whether work carried out on the Netherlands section of the continental shelf can be regarded as having been carried out within the jurisdiction of the Netherlands proper.65 In all these cases, the CJEU found that it fell to the Member States to regulate these areas, albeit with due regard to Union law, in accordance with the rules of general international law. It thus becomes evident that EU law does not exhaustively govern the relations between the Member States inter se and between the Member States and the EU. Beyond the scope of application of the Treaties, those relations certainly continue to be subject to the rules of general international law, as the example of the Jurisdictional Immunities case before the International Court of Justice (ICJ) clearly illustrates: When Germany brought a case against Italy for failing to respect its jurisdictional immunity as a sovereign State, Germany asserted in its application that, although the case involved two EU Member States, the CJEU had no jurisdiction to entertain it, since the dispute was not governed by any of the jurisdictional clauses in the Treaties. Moreover, “[o]utside the specific framework […] the [Member States] continue to live with one another under the régime of general international law.”66 Obviously, the

61

Richard Gardiner, Treaty Interpretation (2008), 121.

62

Cf. CFI, Joined Cases T-27/03, T-46/03, T-58/03, T-79/03, T-80/03, T-97/03, and T-98/03, SP SpA and Others v. Commission, 2007 ECR II-1357, para. 58: “The reference to international law, and in particular to Articles 54 and 70 of the Vienna Convention, fails to have regard to the sui generis nature of the Community legal order […]. The indivisibility of the Community legal order and the lex specialis to lex generalis relationship between the ECSC and EC Treaties mean that the consequences of the expiry of the ECSC Treaty are not governed by the rules of international law but must be assessed in the light of the provisions existing within the Community legal order”. 63

ECJ, Case C-221/89, The Queen v. Secretary of State for Transport, ex parte Factortame Ltd. and Others, 1991 ECR I-3905, para. 17. 64 Id., Case C-369/90, Mario Vicente Micheletti and Others v. Delegación del Gobierno en Cantabria, 1992 ECR I-4239, para. 10. 65 66

Id., Case C-37/00, Herbert Weber v. Universal Ogden Services Ltd., 2002 ECR I-2013, paras. 31–34.

International Court of Justice (ICJ), Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Application by Germany of 23 December 2008, para. 6, available at: http://www. icj-cij.org/docket/files/143/14923.pdf (accessed on 15 January 2015).

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ICJ did not engage in this matter, as the final judgment does not show any references to the CJEU or its potential jurisdiction in this case.67 Yet, it remains questionable and controversial whether and to what extent customary international law can be used within the scope of application of the Treaties where those Treaties remain silent. The next sections will therefore examine whether EU law could indeed be supplemented by general international law or whether the latter may even be used as a subsidiary normative layer in intra-Union relations and thus set aside the more specific rules of Union law.

B. Subsequent Member State Practice

We should bear in mind that the legal basis of the European Union’s legal order are treaties, not a ‘genuine’ domestic constitutional document, whose relationship with general international law is governed by international law itself. There is no doubt that, from a public international law point of view, all major revision treaties of the last decades, including the Lisbon Treaty, were amendments of multilateral treaties under the legal regime of Articles 39 to 41 VCLT. Article 39 VCLT states that a treaty may be amended by an agreement between all the parties, to which the international rules on the conclusion of treaties apply. And since the international regime of treaty amendment is informed by utmost flexibility, this default rule is of residual nature68 and can therefore be easily set aside by the parties when concluding the original treaty in the way they wish.69 Article 48 TEU on the revision procedure of the Union Treaties is living proof of that. Yet, this also entails that the founding treaties remain subject to derogation by subsequent practice, according to international law70 and within the meaning of Article 31 (3)(b) VCLT. Since the words of the treaty in question are given a (more)

67 Id., Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99. 68

Jutta Brunnée, Treaty Amendments, in: Duncan B. Hollis (ed.), The Oxford Guide to Treaties (2012), 347, 350. 69

Bruno de Witte, Treaty Revision Procedures after Lisbon, in: Andrea Biondi/Piet Eeckhout/ Stefanie Ripley (eds.), EU Law after Lisbon (2012), 107, 108. 70

Gianelli (note 5), 96.

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precise meaning by deeds of the treaty parties,71 subsequent practice “constitutes objective evidence of the understanding of the parties as to the meaning of the treaty.”72 Most importantly, the rules of treaty interpretation in the context of subsequent practice are also applicable to the constituent instruments of international organisations, by virtue of Article 5 VCLT, which has also been confirmed by the ICJ in its opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict.73 It therefore seems plausible that the EU Member States could, in fulfilling their obligations under the Union Treaties,74 alter the meaning of EU primary law via subsequent practice. The Luxembourg Court, however, cannot accept this view. It objected to the concept of derogation from the Treaties by subsequent Member State practice, and ruled that the Treaties “can only be modified by means of the amendment procedure carried out in accordance with Article [48 TEU].”75 Consequently, “a mere practice […] cannot derogate from rules laid down in the treaty. Such a practice cannot therefore create a precedent binding on [Union] institutions with regard to the correct legal basis.”76 Given that the European Union “constitutes a new legal order of international law,”77 every Member State act or practice in disregard of EU law would contribute to the disintegration of the Union system.78 Consequently, the CJEU shortly thereafter not only dropped the reference to “international law” in Costa v. E.N.E.L.79 and thereby further substantiated the Union’s legal autonomy towards general international law, but also confirmed that “a mere practice cannot

71

Gardiner (note 61), 225.

72

ICJ, Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999, ICJ Reports 1999, 1045, para. 49. 73

Id., Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 66, para. 19. 74 Oliver Dörr, Article 31, in: id./Kirsten Schmalenbach (eds.), Vienna Convention on the Law of Treaties: A Commentary (2012), para. 80. 75

ECJ, Case 43/75, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, 1976 ECR 455, para. 58. 76

Id., Case 68/86, United Kingdom v. Council, 1988 ECR 855, para. 24.

77

Id., Case 26/62, van Gend & Loos v. Netherlands Inland Revenue Administration, 1963 ECR 1, 10.

78

Id., Case 6/64, Flaminio Costa v. E.N.E.L., 1964 ECR 585.

79

Ibid., 593.

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override the provisions of the Treaty.”80 This may be true from the perspective of EU law. Under international law, however, the question nonetheless remains whether the Member States still have the legal power to jointly act in non-compliance with Article 48 TEU in order to derogate from the Treaties. To put it bluntly, we should ask whether the Member States – in a twist of bitter irony – may place themselves outside the boundaries of EU law in order to change the EU legal order from the ‘outside.’81 The fact that EU primary law rests on international agreements concluded between the Member States speaks in favour of this view, in particular given the Member States’ option to act on the basis of an actus contrarius or actus modificens to the Treaties,82 and thus to disintegrate the Union at their discretion. Beyond that, the EU is not a sovereign subject of international law, which exists independently from the will of the Member States, or which has acquired international sovereignty from them. As a consequence, we might – provocatively – conclude that the EU merely exists since the Member States permit it to exist.83 The Member States retained an untouched core of independence84 and thus never surrendered their legal power to conjointly undo the European project.85 This view is also in line with the general consent rule of Article 54 (b) VCLT which states that “[t]he termination of a treaty […] may take place […] at any time by consent of all the parties after consultation with the other contracting States” (emphasis added). Since this provision displays the contracting parties’ joint right and power under general international law to dispose of any treaties at their will, they may not only terminate the first treaty by concluding 80

Id., Case C-327/91, France v. Commission, 1994 ECR I-3641, para. 36.

81

Hans-Joachim Cremer, Art. 48 EUV, in: Christian Calliess/Matthias Ruffert (eds.), EUV/AEUVKommentar (2011), para. 20. 82

Rupert Scholz, Europäische Union und deutscher Bundesstaat, Neue Zeitschrift für Verwaltungsrecht 12 (1993), 817, 818; Karl Doehring, Staat und Verfassung in einem zusammenwachsenden Europa, Zeitschrift für Rechtspolitik 26 (1993), 98, 99. 83

Trevor C. Hartley, International Law and the Law of the European Union – A Reassessment, British Yearbook of International Law 22 (2001), 1, 8. 84 Ulrich Everling, Reflections on the Structure of the European Union, Common Market Law Review 29 (1992), 1053, 1076. 85

Jochen Frowein, Das Maastricht-Urteil und die Grenzen der Verfassungsgerichtsbarkeit, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 54 (1994), 1, 10; Rudolf Bernhardt, Europäisches Gemeinschaftsrecht und das Recht internationaler Organisationen: Gemeinsamkeiten und Unterschiede, in: Gerhard Hafner et al. (eds.), Liber Amicorum: Professor Ignaz Seidl-Hohenveldern in Honour of His 80th Birthday (1998), 25, 33–34.

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another treaty, but also by contravening subsequent practice governed by general international law.86 However, one might object to this view that States parties to an agreement could agree that their relationship shall not be governed by international law and thence be removed from the scope of the international law of treaties (according to Article 2 (1)(a) VCLT), for example when forming a new and indissoluble federal State.87 The European Union could provide such an example, as the process of European integration is purported to be irreversible.88 Nonetheless, as mentioned before, it remains undisputed that the Union’s legal basis is founded on international treaties and that the EU is not a federal State which means that the Member States could in fact supersede the EU Treaties’ legal effects via contravening subsequent practice. Of course Union law tries to bar the Member States from changing EU primary law by legal avenues other than those governed in Article 48 TEU.89 Subsequent practice cannot play an important role in the various means of interpretation employed by the CJEU90 simply because it is the Treaties that shall govern the practice of the Member States, and not vice versa.91 Any subsequent practice in contravention of Article 48 TEU certainly constitutes a watering down of the EU legal order and is therefore regarded as a threat to the uniformity and autonomy of Union law.92 Moreover, the Member States apparently prefer the explicit rules of EU law on treaty revision over those of international law: The ‘Euro crisis’ has shown that the Member States are careful to follow EU law when amending the Treaties (in this case, Article 136 (3) TFEU which allows for the establishment of a financial stability 86

Anthony Aust, Modern Treaty Law and Practice (2007), 254.

87

Thomas Giegerich, Article 54, in: Dörr/Schmalenbach (eds.) (note 74), para. 48.

88

Peter Herzog, Article 240 TEC, in: Hans Smit/Peter Herzog (eds.), The Law of the European Union, vol. 6 (2008), 240.03–240.04. 89

Cremer (note 81), para. 21.

90

Georg Nolte, Jurisprudence under Special Regimes Relating to Subsequent Agreements and Subsequent Practice: Second Report for the ILC Study Group on Treaties over Time, in: Georg Nolte (ed.), Treaties and Subsequent Practice (2013), 210, 301. 91

Gordon Slynn, The Use of Subsequent Practice as an Aid to Interpretation by the Court of Justice of the European Communities, in: Roland Bieber/Georg Ress (eds.), Die Dynamik des Europäischen Gemeinschaftsrechts (1987), 137, 138. 92

Nial Fennelly, Legal Interpretation at the European Court of Justice, Fordham International Law Journal 20 (1996), 656, 672.

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mechanism),93 even if recourse to general international law would have been possible. Lastly, one has to wonder why, if the Member States actually disagreed with the CJEU’s findings that Article 48 TEU constituted the sole way to amend the Treaties, they would not have used the repeated occasions of Treaty revision to “set the record straight” in a way they intended.94 It can therefore be concluded that with regard to subsequent State practice, recourse to international law and subsequent destabilisation of Union law is practically irrelevant. Theoretically, however, it is still within the Member States’ power to rely on general international law in order to act in violation of these rules. This could supposedly be one of the reasons why the drafters of the EU Treaties did not include any reference to the function of general international law within the Union’s legal order. This conclusion remains, however, hypothetical and therefore ultimately unprovable.

C. ‘Self-Contained Regimes’ and Countermeasures

Another reason for the absence of an explicit reference to the functions of customary international law within EU law could be the deliberate derogation from custom by creating a new organisation, namely the Union, on the basis of international agreements. Article 3 (5) TEU certainly commits the EU to respect international law in its relations with non-Member States, as well as other subjects of international law, but it does not oblige the Union to apply general international law in its internal dealings with the Member States. In other words, precisely because primary law is treaty law, it may well derogate from general international law in the relations among Member States inter se and between the EU and the Member States.95 In this regard, former ICJ Judge Bruno Simma raised the question whether European Union law, as a ‘subsystem’ of public international law,96 and its remedies in the 93

European Council, Decision of 25 March 2011 Amending Article 136 of the Treaty of the Functioning of the European Union with Regard to a Stability Mechanism for Member States Whose Currency is the Euro (2011/199/EU), OJ 2011 L 91, 1. 94 J. H. H. Weiler, The Autonomy of the Community Legal Order: Through the Looking Glass, Harvard International Law Journal 37 (1996), 411, 433. 95 96

Gianelli (note 5), 96.

Axel Marschik, Subsysteme im Völkerrecht: Ist die Europäische Union ein „Self-Contained Regime“? (1997), 193 et seq.

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form of obligatory judicial dispute settlement procedures with binding decisions, definitely excludes international measures of self-help, such as countermeasures, between Member States inter se and between Member States and the Union, or whether there is the chance of an exceptional ‘fall-back’ on general international law. He also asked to which extent EU law can be considered ‘self-contained’ in the meaning that the Union alone can claim the right to react to violations of EU law and thus bar aggrieved Member States from hearkening back to the general norms of internationally wrongful acts. Lastly, Simma also wonders whether the principle of residual application of general international law to international organisations as enshrined in Article 5 VCLT is thus also valid for State responsibility.97 In other words, one could equally enquire whether the autonomous EU system either provides for an exhaustive list of remedies which does not permit any subsidiary recourse to general international law; or whether Union law, as a quasi-‘ancillary’ legal order of public international law allows for the application of countermeasures under the general rules of State responsibility98 by Member States against other Member States when breaching EU law.99 At the outset, it should be analysed whether the European Union’s legal order is in fact a ‘self-contained regime’ which only allows for the application of an exhaustive and definite list of secondary rules, and thus excludes the fall-back to the general rules of internationally wrongful acts.100 Without doubt, EU law contains primary rules, governing the rights and duties of the Union, the Member States, and individuals within the scope of EU law, and certain secondary rules, which guarantee the enforcement of primary rules. If the EU is an ‘open subsystem’ of international law, general secondary rules may well be applied in order to enforce EU primary rules; if the EU, on the other hand, is a ‘closed subsystem,’ Union law is entirely uncoupled from general international law and thus its set of secondary rules101 may well foresee its 97 Bruno Simma, Self-Contained Regimes, Netherlands Yearbook of International Law 16 (1985), 111, 123. 98

Cf. Arts. 49 et seq. ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 99 Frank Schorkopf, Die Maßnahmen der XIV EU-Mitgliedstaaten gegen Österreich: Möglichkeiten und Grenzen einer „streitbaren Demokratie“ auf europäischer Ebene (2002), 69. 100

Simma (note 97), 117.

101

Schorkopf (note 99), 70.

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possible abuse by Member States and hence “specif[y] the means at the disposal of the […] State[s] to counter any such abuse.”102 Suitable candidates for an EU set of secondary rules are (1) proceedings before the Luxembourg Court, in concreto infringement proceedings under Article 258 TFEU and Article 259 TFEU; (2) secondary legislation redressing breaches of Union law; (3) the direct effect of EU law before domestic courts; and (4) the proceedings under Article 7 TEU to act if a Member State violates the values enshrined in Article 2 TEU, i.e. human dignity, freedom, democracy, equality, the rule of law, and respect for human rights.103 In particular (1) and (4), proceedings before the CJEU and proceedings under Article 7 TEU, respectively, merit special consideration and will therefore be discussed in the following paragraphs. The instrument of State liability as developed by the CJEU in cases such as Francovich104 and Brasserie du Pêcheur105 will not be examined at this point, since it does not represent a comprehensive dispute settlement procedure under EU law of its own. In fact, if a Member State refused to provide a remedy as required by Francovich, the EU or the other Member States would then bring an action for failure to act (under Article 258 or 259 TFEU) or instigate proceedings under Article 7 TEU in order to redress this issue.106

1. Infringement Proceedings The first aspect to be explored are infringement proceedings as a very effective and sophisticated set of secondary rules. The CJEU had to deal with the relationship between the internal enforcement of EU law and general international law for the first time when Luxembourg and Belgium pleaded that the international rules of 102

ICJ, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, ICJ Reports 1980, 3, para. 86. 103

Simma (note 97), 125.

104

ECJ, Joined Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci v. Italy, 1991 ECR I-5357. 105

Id., Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Federal Republic of Germany and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd. and Others, 1996 ECR I1029. 106

Gerard Conway, Breaches of EC Law and the International Responsibility of Member States, European Journal of International Law (EJIL) 13 (2002), 679, 688–689.

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State responsibility allowed a Member State, when aggrieved by the failure of another Member State to perform its obligations, to withhold performance of its own. The defendant States argued that, in such a case, the Commission would lose its right to instigate infringement proceedings before the Court.107 The CJEU decided, however, that EU primary law is not merely limited to creating reciprocal obligations between the different natural and legal persons to whom it is applicable, but establishes a new legal order which governs the powers, rights and obligations of the said persons, as well as the necessary procedures for taking cognizance of and penalizing any breach of it. Therefore, except where otherwise expressly provided, the basic concept of the Treaty requires that the Member States shall not take the law into their own hands. Therefore the fact that the Council failed to carry out its obligations cannot relieve the defendants from carrying out theirs.108

The CJEU continued to emphasise the departure which infringement proceedings represented from the traditional dispute settlement mechanisms of international law109 and held that the advantages the Member States took from being part of the Union also imposed on them the obligation to respect its rules,110 which also includes the EU’s compulsory rules on dispute settlement. Moreover, the Court confirmed this approach in the Mutton and Lamb case and ruled that the Member States are prohibited from unilaterally adopting corrective measures on their own authority to prevent any failure by other Member States to comply with EU law.111 This means, in a nutshell, that Member States affected by an alleged breach of Union law by another Member State must submit their case to the Luxembourg Court in accordance with Article 259 TFEU, and that they must not resort to the unilateral application of countermeasures under international law. This approach conforms to the rule set forth in Article 344 TFEU and thus the Member States’ obligation not to submit disputes regarding the interpretation or application of EU law to any court other than the CJEU.112 Both with regard to uni107

ECJ, Joined Cases 90/63 and 91/63, Commission v. Luxembourg and Belgium, 1964 ECR 625,

631. 108

Ibid. (emphasis added).

109

Anthony Arnull, The European Union and its Court of Justice (2nd ed. 2006), 44.

110

ECJ, Case 39/72, Commission v. Italy (Premiums for Slaughtering Cows), 1973 ECR 101, para. 24.

111

Id., Case 232/78, Commission v. France (Mutton and Lamb), 1979 ECR 2729, para. 9.

112

Cf. in this respect the seminal judgment id., Case C-459/03, Commission v. Ireland (MOX Plant), 2006 ECR I-4635.

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lateral actions under general international law and to judicial dispute settlement, the Luxembourg Court claims absolute and exclusive jurisdiction in order to maintain the autonomy of EU law.113 In this light, it was a prudent manoeuvre of Hungary to submit a bilateral dispute with Slovakia to the Luxembourg Court before hearkening back to unilateral measures under international law. Although the CJEU eventually ruled that Slovakia’s refusal to allow the Hungarian President access to Slovakian territory was not in violation of Union law (as the Member States’ right to control the access of a foreign head of State to their territory is governed by customary international law and international conventions, and not the principle of free movement under Article 21 TFEU),114 any myopic unilateral measure on the part of Hungary, without prior clarification by the Luxembourg Court, could have violated the aforementioned principle of exclusive jurisdiction of Article 344 TFEU. Such a move could have resulted in infringement proceedings by the Commission under Article 258 TFEU.115 General Advocate Yves Bot also noted that any dispute on the interpretation and application of Union citizenship and free movement rights should be dealt with by the Luxembourg Court “by means of one of the procedures provided for in [the Treaties], in this case Article 259 TFEU.”116 Should the CJEU in the end decide that a Member State is in fact responsible for a violation of Union law, the convicted Member State must certainly comply with the judgment. In the event of non-compliance, the Commission may bring the case before the Court, which may impose a lump-sum or penalty payment on the defaulting Member State if it has in fact not complied with the previous judgment (Article 260 (2) TFEU).117

113 Cf. also Paul Gragl, The Accession of the European Union to the European Convention on Human Rights (2013), 19–49. 114

ECJ, Case C-364/10, Hungary v. Slovakia, paras. 34 and 52, available via: http://curia. europa.eu/juris/liste.jsf?num=C-364/10 (accessed on 3 March 2015). 115

Ibid., para. 23.

116

Id., Case C-364/10, Hungary v. Slovakia, Opinion of Advocate General (AG) Bot, para. 47, available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=120050&pageIndex= 0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=273405 (accessed o 11 March 2015). 117

Id., Case C-387/97, Commission v. Greece (Failure by a Member State to fulfil its obligations), 2000 ECR I-5047.

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The mechanism under Article 260 (2) TFEU thus plainly constitutes “the sharp end of the overall enforcement procedure […].”118 Yet, the EU Treaties remain silent on the question which legal consequences another act of non-compliance – this time the second judgment, confirming the breach of EU law by not complying with the first judgment – would entail. Certain international lawyers argue that measures of reprisal or an exceptio non adimpleti contractus within the meaning of Article 60 VCLT would not be admissible in order to react to a violation of Union law by a Member State;119 others, however, assume that the application of measures under international law to enforce European Union law are permissible, but only after the local remedies of the ‘subsystem’ EU have been exhausted120 or if the EU judicial system has proved entirely ineffective in a given situation.121 Such measures therefore represent the last resort to guarantee the effectiveness of Union law, which must certainly comply with the strict rules of State responsibility, i.e. reprisals (or countermeasures, to use the modern term) must be applied proportionally and short of the use of force.122 Beyond that, the general rules on State responsibility are hence merely residually applicable.123 The case of Hungary v. Slovakia proves that if there is a dispute between Member States concerning the interpretation of EU 118

Paul Craig/Gráinne de Búrca, EU Law: Text, Cases, and Materials (2011), 438.

119

Conway (note 106), 693; Simma (note 97), 126; Jürgen Schwarze, Das allgemeine Völkerrecht in den innergemeinschaftlichen Rechtsbeziehungen, Europarecht (EuR) 18 (1983), 1; Ulrich Everling, Sind die Mitgliedstaaten der Europäischen Gemeinschaft noch Herren der Verträge? Zum Verhältnis von Europäischem Gemeinschaftsrecht und Völkerrecht, in: Rudolf Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte: Festschrift für Hermann Mosler (1983), 173, 173 et seq. 120

Michael Smith, The European Union and International Order: European and Global Dimensions, European Foreign Affairs Review 12 (2007), 437, 440; Albert Bleckmann, Die Rechtsnatur des Europäischen Gemeinschaftsrechts: zur Anwendbarkeit des Völkerrechts im Europäischen Rechtsraum, Die Öffentliche Verwaltung 31 (1978), 391, 393–394; Hubertus A. H. Audretsch, Supervision in European Community Law: Observance by the Member States of their Treaty Obligations (1986), 138–146; Torsten Stein, Die regionale Durchsetzung völkerrechtlicher Verpflichtungen: Europa, ZaöRV 47 (1987), 95, 108. 121

Bruno de Witte, European Union Law: How Autonomous is its Legal Order?, Zeitschrift für Öffentliches Recht (ZÖR) 65 (2010), 141, 152. 122

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, 392, para. 249, and Art. 50 (1)(a) Articles on the Responsibility of States for Internationally Wrongful Acts. 123

Bruno Simma/Dirk Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, EJIL 17 (2006), 483, 516.

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law, the CJEU claims full jurisdiction, even if, at the end of the day, the substantive scope of the dispute lies outside Union law.124 And although the Kadi cases did not involve questions of State responsibility or a dispute between Member States, the Luxembourg Court clearly conveyed to Member States such as the United Kingdom (which would have preferred to see the EU act in question on combating terrorism125 not being invalidated)126 that if international law is not capable of protecting individual rights in the way Union law is, the former has to give way to the latter. In the light of these findings, concerns about a potential ‘barbarisation’ of the relations between the EU Member States through a potential fall-back to the rules of general international law seem unjustified.127

2. Serious Breaches of Fundamental Values and Article 7 TEU Proceedings The second aspect to be discussed at this point are proceedings under Article 7 TEU, which allow, after consultations, hearings, and the submission of observations, for the suspension of voting rights of a Member State in the Council, if the Member State in question allegedly acts in contravention of the values referred to in Article 2 TEU.128 Proceedings under Article 7 TEU bear closer resemblance to classical dispute settlement procedures under public international law, which are also used by other

124 Which, of course, raises the question why the Court did not find the case inadmissible at the outset, if the position of heads of States is regulated by international law, and Slovakia did not apply EU law; cf. Tamas Vince Ádány, International Law at the European Court of Justice: A Self-Contained Regime or an Escher Triangle, Hungarian Yearbook of International Law 1 (2013), 165, 179. 125

Council Regulation (EC) No. 881/2002 of 27 May 2002, imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No. 467/2001 of 29 May 2002 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ 2002 L 139, 9. 126 Appeal brought on 16 December 2010 by the United Kingdom of Great Britain and Northern Ireland against the judgment of the General Court (Seventh Chamber) delivered on 30 September 2010 in Case T-85/09, Yassin Abdullah Kadi v. European Commission (Case C-595/10 P), OJ 2011 C 72, 10. 127 128

Marschik (note 96), 289, para. 86.

These values are the respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities.

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international organisations129 to respond to grave violations of values shared among the members of these organisations.130 The question remains, however, whether Article 7 TEU contains exhaustive provisions on dispute settlement, which hence enjoins the Union and the Member States from hearkening back to the general rules of international law, or whether such a fall-back may be admissible in case the relevant provisions of EU law fail to bring about a viable solution.131 The first potential evidence hinting at the exclusiveness of Article 7 TEU is the comprehensive modification to the said provision brought about by the Nice Treaty132 which renders it more precise than in the Treaty of Amsterdam,133 its predecessor.134 The Lisbon Treaty all the more enshrines Article 7 TEU in Part I of the Treaty on European Union and therewith as a ‘constitutional core provision’ of EU law.135 Proponents of the exclusive character of Article 7 TEU additionally argue that the bilateral countermeasures of the (at that time) fourteen other EU Member States against Austria in 2000136 on the basis of general international law,137 i.e. the refusal to meet with the Austrian delegates on a bilateral basis and to deny them access to EU meetings in order to protest against the admission of a right-wing party into a coalition government, were clearly in violation of Union law and thus imper-

129

Cf., e.g., Art. 6 Charter of the United Nations, 26 June 1945, UNCIO 15, 335; Art. 8 Statute of the Council of Europe, 5 May 1949, ETS No. 001; or Art. 30 Constitutive Act of the African Union, 11 July 2000, UNTS 2158, 3. 130

Matthias Ruffert, Art. 7 EUV, in: Calliess/Ruffert (eds.) (note 81), para. 1.

131

Schorkopf (note 99), 68–69.

132

Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Union and Certain Related Acts, 26 February 2001, OJ 2001 C 80, 1. 133 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 2 October 1997, OJ 1997 C 340, 1. 134 Gráinne de Búrca, The Evolution of EU Human Rights Law, in: Paul Craig/Gráinne de Búrca (eds.), The Evolution of EU Law (2nd ed. 2011), 465, 484. 135

Ruffert (note 130), para. 31.

136

See Statement from the Portuguese Presidency of the European Union on Behalf of XIV Member States, 31 January 2000, available at: http://ec.europa.eu/dorie/fileDownload.do;jsessionid= Ng8KStTVk5CvsXhnJGcm4q8Rry89P6cT8bs35h08fhpvFPssDYGc!1615003456?docId=84237& cardId=84237 (accessed on 15 January 2015). 137

Katrin Träbert, Sanktionen der Europäischen Union gegen ihre Mitgliedstaaten: Die Sanktionsverfahren nach Art. 228 Abs. 2 EGV und Art. 7 EUV (2010), 226.

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missible.138 This deliberate circumvention of the relevant provisions of EU law was therefore also in contravention of the general principles of law, as enshrined in Article 38 (1)(c) Statute of the International Court of Justice139.140 Beyond that, European Union law clearly lacks any interconnection between the breach of Union values by one Member State and bilateral sanctions by the other, non-defaulting, Member States. This approach also underlines the Union’s role in providing assistance to maintain democratic institutions or fundamental rights through recommendations under Article 7 TEU if such fundamental values are threatened within a State.141 As a consequence, if there is no breach of these values, there is also no basis for sanctions under general international law.142 Another argument for the exclusiveness of Article 7 TEU proceedings states that the Member States do not have the competence to enact countermeasures inter se for serious violations of human rights and the rule of law, since the concrete course of action for doing so is already governed by EU law. Consequently, minor breaches not amounting to the threshold of severity under Article 7 TEU must also be dealt with by the instruments provided for by the Treaties, such as the aforementioned infringement proceedings under Articles 258 or 259 TFEU, whereas unilateral reprisals are thus considered impermissible.143 The view contrary to the exclusiveness theory holds that Article 7 TEU does not exclusively govern the law of sanctions between EU Member States, as this provision 138 Michael Merlingen/Cas Mudde/Ulrich Sedelmeier, The Right and the Righteous? European Norms, Domestic Politics and the Sanctions Against Austria, Journal of Common Market Studies 39 (2001), 59, 66–67; Andrew Williams, The Indifferent Gesture: Article 7 TEU, the Fundamental Rights Agency and the UK’s Invasion of Iraq, European Law Review 31 (2006), 3, 7–10, and 25; Wojciech Sadurski, Adding Bite to a Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider, Columbia Journal of European Law 16 (2010), 385, 385. 139

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355.

140

Ludwig Adamovich, Juristische Aspekte der „Sanktionen“ der EU-14 und des „Weisenberichtes,“ Europäische Grundrechte-Zeitschrift 28 (2001), 89, 90. 141

de Búrca (note 134) 470.

142

Heribert Franz Köck/Margit Hintersteininger, Zu den Sanktionen der vierzehn EU-Partnerstaaten gegen Österreich, in: Erhard Busek/Martin Schauer (eds.), Eine europäische Erregung: Die „Sanktionen“ der Vierzehn gegen Österreich im Jahr 2000 (2003), 317, 342–343; Heribert Franz Köck, Die Maßnahmen der EU-14 gegen Österreich, in: Konrad Ginther et al. (eds.), Völker- und Europarecht: 25. Österreichischer Völkerrechtstag (2001), 109, 115–116. 143

Schorkopf (note 99), 72.

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does not invest the Union with the exclusive competence to sanction Member States acting in violation of the EU’s fundamental values. Such exclusivity would furthermore not only entail the complete and utter loss of this competence on part of the Member States, but it would also prove to be practically futile, as the Union is entitled to act under Article 7 TEU even in those cases in which a Member State has violated the Union’s values outside the scope of EU law.144 In other words, a Member State may also breach these values and the EU’s principle of homogeneity by acting without any relation to Union law whatsoever, since the values of Article 2 TEU represent a fundamental European catalogue of common and shared values among the Member States.145 Furthermore, it is also manifest that the European Union does not have any competence to govern the relations between the Member States inter se, as it is the Member States’ sovereign right to determine the scope of bilateral relations with their European neighbours. Although Article 7 TEU contains an exhaustive list of sanctions, there is no evidence that the Member States have in fact lost the competence to enact sanctions against each other.146 The Member States of the European Union could, for instance, impose unilateral countermeasures against each other in case they violated a fundamental principle not mentioned in Article 2 TEU, or if the breach does not reach the minimum level of severity as required by Article 7 TEU.147 It is also evident that the EU does not have exclusive competence for imposing preliminary measures below the threshold of Article 7 TEU, since there is no legal basis for such competence in the Treaties, nor did the Council pass any respective legislation based on Article 7 TEU. Yet, as the former alternative would require Treaty amendments and the latter option would fail due to the lack of the Council’s power to legislate on the basis of Article 7 TEU, the Member States may impose such

144 Stefanie Schmahl, Die Reaktionen auf den Einzug der Freiheitlichen Partei Österreichs in das österreichische Regierungskabinett: Eine europa- und völkerrechtliche Analyse, EuR 35 (2000), 819, 832–833. 145

Ibid., 821, and Frank Schorkopf, Homogenität in der Europäischen Union: Ausgestaltung und Gewährleistung durch Art. 6 Abs. 1 und Art. 7 EUV (2000), 69. 146 Christian Busse, Österreich contra Europäische Union: Eine rechtliche Beurteilung der Reaktionen der EU und ihrer Mitgliedstaaten auf die Regierungsbeteiligung der FPÖ in Österreich (2000), 21–22 and 27–28. 147 Franz Leidenmühler, Zur Legalität der Maßnahmen gegen die österreichische Bundesregierung: Rechtsfragen aus Anlass der internationalen Reaktionen auf die Regierungsbildung eines Mitgliedstaates der EU, ZÖR 55 (2000), 299, 312.

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sanctions as preliminary measures against each other according to the rules of general international law.148 Since the ‘nuclear option’149 of Article 7 TEU has never been applied in practice,150 there is no telling whether these proceedings are sufficient to react to serious breaches of EU values, or whether the Union and the other Member States cannot help but falling back to the general rules of international law to properly react in emergency situations. In a nutshell, however, it can be seen that mere political disagreements do not constitute serious breaches of the values enshrined in Article 2 TEU and therefore cannot result in proceedings under Article 7 TEU. This provision can consequently be considered an exhaustive list of measures which may be applied to bring defaulting Member States back in line with the principles of European Union law. This means that the EU Member States asserted rights which do not exist under EU law when they imposed bilateral sanctions against Austria in 2000 and therefore potentially violated the Union’s legal order themselves.151 Today the majority view is that these sanctions, especially the refusal to grant the Austrian delegates access to EU consultations, were illegal and impermissible under EU law152 (yet certainly legal under international law),153 and, if such a case were to occur again under the current legal conditions, proceedings under Article 7 TEU would have to be pursued in any event.

148 Waldemar Hummer/Walter Obwexer, Die Wahrung der „Verfassungsgrundsätze“ der EU: Rechtsfragen der „EU-Sanktionen“ gegen Österreich, Europäische Zeitschrift für Wirtschaftsrecht 11 (2000), 485, 489. 149 Cf., e.g., Lauri Bode-Kirchhoff, Why the Road from Luxembourg to Strasbourg Leads through Venice: The Venice Commission as a Link between the EU and the ECHR, in: Kanstantsin Dzehtsiarou et al. (eds.), Human Rights Law in Europe: The Influence, Overlaps and Contradictions of the EU and the ECHR (2014), 55, 68. 150

Williams (note 138), 27, who argues that the use of Art. 7 proceedings “[…] would be catastrophic. Even its possible application would set in train disastrous events that might undo the very fabric of the Union”. 151

Bruno de Witte/Gabriel N. Toggenburg, Human Rights and Membership of the European Union, in: Steve Peers/Angela Ward (eds.), The EU Charter of Fundamental Rights: Politics, Law, and Policy (2004), 59, 77. 152

Adamovich (note 140), 90; Ruffert (note 130), para. 33; Sadurski (note 138), 401–405; Schorkopf (note 99), 68 et seq. 153 Matthew Happold, Fourteen against One: The EU Member States’ Response to Freedom Party Participation in the Austrian Government, International and Comparative Law Quarterly 49 (2000), 953, 962.

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One could consequently assume that nowadays, after the CJEU has extensively corroborated its exclusive jurisdiction in cases such as MOX Plant,154 the Member States would thus be obliged to await the results of Article 7 TEU procedures and then – in case they should fail – call upon the Luxembourg Court to settle such disputes before resorting to bilateral countermeasures. Even though the Court may rule that the principles violated by the Member State in question are not within the ambit of EU law, as it recently did in the Hungary v. Slovakia case,155 Article 344 TFEU nevertheless commits the Member States not to submit disputes to any other court or tribunal than the Union courts. The only exception remain cases where there is absolutely no doubt that the dispute in question does not even remotely touch upon Union law, as for instance in the Jurisdictional Immunities case.156 Finally, the increasingly negative fundamental rights situation in Hungary since 2011 demonstrates that general international law is not even considered to bolster the possibility of unilateral or stronger methods of Treaty enforcement. In fact, infringement proceedings instigated by the Commission against Hungary,157 and the European Parliament’s “Tavares Report”158 emphasise that the EU institutions and the Member States try to use all the methods provided for in the Treaties to pressure Hungary into conforming with EU fundamental rights. In conclusion, recourse to general international law in order to bring defaulting Member States ‘back in line’ with Union law hence seems to be a mere hypothetical possibility without any real chance of transpiring.

3. Expulsion of EU Member States The question remains what the Member States should do with another Member State which continues to breach the principles of Union law, even after they have – un154

ECJ, MOX Plant (note 112).

155

Id., Hungary v. Slovakia (note 114), paras. 34 and 52.

156

ICJ, Jurisdictional Immunities of the State (note 67).

157

Cf., e.g., ECJ, Case C-288/12, Commission v. Hungary (Data Protection), Judgment of 8 April 2014, not yet reported, OJ 2014 C 175, 6. 158

European Parliament, Report on the Situation of Fundamental Rights: Standards and Practices in Hungary (pursuant to the European Parliament Resolution of 16 February 2012) (2012/2130/(INI)), 24 June 2013, A7-0229/2013, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-// EP//NONSGML+REPORT+A7-2013-0229+0+DOC+PDF+V0//EN (accessed on 15 January 2015).

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successfully – initiated proceedings under Article 7 TEU as well as infringement proceedings under Article 259 TFEU (or Article 258 TFEU if they have asked the Commission to intervene). Despite the Euro crisis and some populist calls for the expulsion of deeply indebted Member States such as Greece from the Union, the actual expulsion of a Member State certainly appears to be a merely hypothetical question which will most likely not transpire in reality. We should nevertheless carry this thought a little further, just out of academic curiosity and for the sake of argumentative completeness. If the Member States ponder over the step of expulsing a defaulting Member State, it is clear that they must first ‘exhaust the domestic remedies’ of EU law, i.e. the abovementioned proceedings (Article 7 TEU and/or infringement proceedings).159 Since there is no explicit provision in the Treaties allowing for the expulsion of Member States,160 the Member States may then fall back on the general rules of international law161 as a sort of remedium ultimum,162 after the procedural steps of EU law have failed. This assumption in turn raises the question on which concrete international norms the Member States could rely to expel a ‘pariah’ among them. At the outset, the remaining Member States need to pursue this course of action unanimously,163 before they may hearken back to the relevant provisions of the VCLT – albeit only in analogous fashion via its concurrent existence as customary international law, as Article 4 VCLT does not allow for the retroactive application of the Convention,164 and the EU Member States France and Romania have, so far, decided not to ratify it. Since Article 5 VCLT (or rather its counterpart in customary international law)165 allows for the application of the Convention to the constituent treaties of an inter159 Oliver Dörr, Art. 50 EUV, in: Eberhard Grabitz/Meinhard Hilf/Martin Nettesheim (eds.), Das Recht der Europäischen Union: EUV/AEUV (2014), para. 46. 160

Cf. for an extensive analysis on the lack of such a provision Phoebus Athanassiou, Withdrawal and Expulsion from the EU and EMU: Some Reflections, European Central Bank Legal Working Paper Series, No. 10 (2009), 1, 32–36. 161

Ruffert (note 130), para. 31.

162

Friedemann Götting, Die Beendigung der Mitgliedschaft in der Europäischen Union (2000), 151, para. 9. 163

Henri de Waele, The European Union on the Road to a New Legal Order: The Changing Legality of Member State Withdrawal, Tilburg Foreign Law Review 12 (2004), 169, 185. 164

Schmahl (note 144), 829. Given that the VCLT entered into force in 1980, it would thus retroactively apply to those Member States who have joined the EU prior to this date. 165

Aust (note 86), 394.

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national organisation and therewith to the EU Treaties, a potential candidate norm for the expulsion of a Member State could be Article 60 (2)(a) VCLT,166 which is considered a codification of customary international law.167 Should a contracting party be in material breach of a multilateral treaty, Article 60 (2)(a) VCLT allows for the suspension of this treaty between the defaulting contracting State and the other parties. Sceptics may argue, however, that this provision is not applicable, as Article 60 (4) VCLT establishes the rules of Article 60 VCLT as residuary norms vis-à-vis any leges speciales of the treaty applicable in the event of a breach. Proceedings under Article 7 TEU possibly constitute special proceedings under Article 60 (4) VCLT and would therefore bar the application of Article 60 (2)(a) VCLT and the general rules of international law.168 Yet, international lawyers counter this argument by referring to the wording of Article 7 (3) TEU which only allows for the suspension of certain rights “deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council” (emphasis added). This means that, firstly, only certain rights of a defaulting Member State can be suspended, but not the membership itself, and secondly, that Article 7 TEU does not contain an exhaustive list of any contrivable sanction against defaulting Member States in the event of serious breaches.169 We might therefore conclude that Article 7 TEU is not a lex specialis within the meaning of Article 60 (4) VCLT and does therefore not foreclose the use and application of the general rules of international law (for instance the customary rules of Article 60 (2)(a) VCLT) in order to expel Member States for serious breaches of European Union law. But again, from the perspective of political reality, the expulsion of an EU Member State is a mere academic thought experiment which is very unlikely to occur in practice.

166 Schmahl (note 144), 829; Simma (note 97), 128; Manfred Zuleeg, Der Bestand der Europäischen Gemeinschaft, in: Roland Bieber/Albert Bleckmann/Francesco Capotorti (eds.), Das Europa der zweiten Generation: Gedächtnisschrift für Christoph Sasse, vol. 1 (1981), 55, 62–63. 167 ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 46. 168

Thomas Giegerich, Article 60, in: Dörr/Schmalenbach (eds.) (note 74), para. 70.

169

Schmahl (note 144), 830.

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IV. Conclusion: “Si Tacuisses …”? It seems appropriate to conclude this contribution with a proverb. The approach which the drafters of the Lisbon Treaty obviously followed when formulating the new provisions in both Article 3 (5) TEU and Article 21 TEU, appears to mirror Boethius’ advice “Si tacuisses, philosophus mansisses.”170 Although these two provisions clearly express the Union’s commitment to upholding international law vis-à-vis the outside world and insinuate an innovative and courageous acceptance of public international law in the EU legal order,171 they fall short of being proper incorporation clauses, which can usually be found in State constitutions. It seems that this silence is not due to a limited relevance or to the lack of interest by the European Union in the international legal system. It rather appears that the drafters of the EU Treaties were aware of the effect the explicit recognition of the relation between general international norms and the Treaties might have on the very fabric of the EU system, as this recognition could erode the Treaties’ character as founding ‘constitutional’ instruments and therewith threaten the Union’s establishment as a quasi-domestic legal order, which is intended to remain distinct from the rules of international law.172 This certainly leaves a bitter taste in the mouths of legal theorists who are thus prevented from finding clear and unambiguous models of classifying the EU’s relationship with international law. A straightforward provision on how general international law is to be implemented within Union law would unquestionably be helpful in order to overcome the current confused practice of the Court which appears to be oscillating between monism and dualism.173 In practice and aside from any speculations, however, the CJEU has in fact accepted that the general rules of international law are binding on the Union and that they form part of the EU legal order, which means that these rules are nowadays incorporated on a traceable case-by-case basis, and not in their entirety as the whole set of customary international law. The judg170 Boethius, The Consolation of Philosophy (reprint, 2008), 36: “‘So now at last do you realize that I am a philosopher?’ Whereupon the first man bitingly answered: ‘I should have known it, if you had kept your mouth shut’”. 171 Theodore Konstadinides, When in Europe: Customary International Law and EU Competence in the Sphere of External Action, German Law Journal 13 (2012), 1177, 1180. 172

Gianelli (note 5), 97.

173

Beatrice I. Bonafé, International Law in Domestic and Supranational Settings (2014), 378, 389.

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ment in Racke, which serves as a judicial substitution of such an incorporation clause, proves that a codified incorporation clause is not absolutely necessary in order to give effect to general international law in a ‘domestic’ setting. Yet, with respect to the normative hierarchy of EU law and the way the CJEU has decided certain landmark cases (in particular the Kadi saga), it may, nonetheless, have been a wise choice to follow Boethius’ saying and to keep quiet on this matter and not to include a provision on the status of general international law within the EU’s legal order, as this might have further complicated matters and bereft the Court of its flexibility, especially when it comes to the protection of fundamental rights. With respect to the functions of general international law in EU law, the European Union’s legal order represents – to a certain extent – a self-contained regime under international law, whose Member States are free to rely on the rules of general international law in their dealings with each other outside the ambit and scope of European Union law, as the Hungary v. Slovakia case174 demonstrated. It is, however, impermissible for them to initially resort back to these rules when EU law is involved in a dispute. In this case the Member States are required to first exhaust the ‘domestic’ remedies of the Treaties before they may impose sanctions under international law against one another. This theoretically means that the Member States may fall back to the general rules of the international legal system after all remedies provided for by Union law have been exhausted without any positive results. In other words, not even the highly specialised and integrated EU system has completely been ‘decoupled’ from the leges generales of international law.175 Metaphorically speaking, the law of the European Union may have left the uterus of its ‘maternal’ legal order, i.e. public international law, but it seems that the umbilical cord has not been entirely cut. Simma concludes that the profound opposition of EU lawyers against the residual application of international law appears predominantly to be based on the fear that “the more highly integrated [EU] legal order could otherwise be ‘infected’ by the more ‘primitive’ international law processes of auto-determination and self-help.”176 174

ECJ, Hungary v. Slovakia (note 114).

175

Simma (note 97), 128–129.

176

Ibid., 127.

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Of course, on the other hand, one could also raise the question whether there still is, in practice, a need for the residual application of international norms when rules and remedies under EU law are both comprehensive and in fact very effective.177 If the need for Treaty amendments arises, the Member States rather meticulously follow the procedures set out by the EU Treaties. And even if certain Member States, for political or fiscal reasons, refuse to integrate instruments such as the European Stability Mechanism (ESM) and the Fiscal Compact in primary Union law,178 and prefer to conclude international agreements to achieve this end, this does not subvert the EU legal order. On the contrary, as the CJEU confirmed in the Pringle case, Article 273 TFEU in conjunction with Article 373 (3) ESM Treaty179 entrusts the Court with the jurisdiction to interpret and apply the provisions of this very treaty in a binding manner.180 Therefore it can always counteract any subsequent Member State practice potentially in contravention to the EU Treaties in this context. Moreover, the Union’s legal order provides for highly sophisticated and elaborate enforcement mechanisms which, in principle, do not require the application of the more general norms of international law. Particularly the two instruments of infringement proceedings and proceedings under Article 7 TEU constitute the Union’s backbone to ‘seal off’ EU law as a regional subsystem of the international legal order and therewith to eliminate any reason to hearken back to the general rules of public international law.181 Practically, this finding entails that the silence of the Treaties appears to be irrelevant in this respect, because not even the drafters’ ‘negligence’ in this regard proved an effective means to cut the ties between European Union and public international law. Yet, at the end of the day, there is the – admittedly unlikely – possibility that the European Union’s enforcement mechanisms fail and that

177

Simma/Pulkowski (note 123), 516–517.

178

European Council, Statement by the Euro Heads of State or Government, 9 December 2011, 7, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/126658.pdf (accessed on 15 January 2015). 179

Treaty Establishing the European Stability Mechanism, 2 February 2012, available via: http:// esm.europa.eu/ (accessed on 15 January 2015). 180

ECJ, Case C-370/12, Thomas Pringle v. Ireland, paras. 170–177, available via: http://curia. europa.eu/juris/liste.jsf?num=C-370/12 (accessed on 3 March 2015). 181

Conway (note 106), 688.

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the more general toolbox of customary international law needs to be re-opened once again. In extremis, recourse to these rules cannot be absolutely excluded.182 This means, in conclusion, that even though the silence of the Treaties on the functions of general international law within Union law does not make a difference with respect to a potential recourse to the subsidiary international rules and thus the autonomy of EU law, it can be hypothesised that a provision on the implementation of general international law could have a certain impact on the Court’s flexibility when dealing with international norms. Thus, the Union may not have exactly remained a philosopher in the meaning of Boethius’ words, but at the very least a functioning supranational organisation sui generis.

182

Ibid., 682–683.

Legal Conflicts in the Protection of Traditional Knowledge and Intellectual Property in International Law ISABEL DAUM(

ABSTRACT: The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP) entered into force on 12 October 2014, which further increased the already existing potential for divergences between the legal regime for the protection of traditional knowledge in the Convention of Biological Diversity (CBD) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This paper develops an approach to harmonise the programmatic conflict underlying the relationship between international environmental and international trade law with the aim of closing the regulatory gap in the TRIPS with regard to the CBD and NP access and benefit sharing requirements through coordination. A broad interpretation of Article 27 (2) TRIPS ensures consistency between the objectives of both treaties and ultimately serves the coherence of international law. KEYWORDS: Traditional Knowledge, Convention on Biological Diversity, Nagoya Protocol, Agreement on Trade Related Aspects of Intellectual Property Rights, Intellectual Property Rights, Patents, Indigenous and Local Communities, Regulatory Gap, Programmatic Conflict, Treaty Interpretation, Ordre Public

I. Introduction The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (NP)1 entered into force on 12 October 2014 following its ratification by 51 parties to the Convention on Biological ( Master’s Candidate in International Law at the Graduate Institute of International and Development Studies, Geneva. 1 Conference of the Parties to the Convention on Biological Diversity (COP), Decision X/1, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, UN Doc. UNEP/CBD/ COP/DEC/X/1 (2010), Annex 1 (NP). 53 States have already ratified it. See Parties to the Nagoya Protocol, available at: https://www.cbd.int/abs/nagoya-protocol/signatories/ (accessed on 9 June 2015).

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Diversity (CBD).2 While the CBD Secretary stated that the NP provides “greater legal certainty and transparency for both providers and users of genetic resources,”3 the entry into force of the NP also increases the already existing potential for divergences between international environmental law and international trade law, particularly the international legal regime on trade related aspects of intellectual property rights (IPRs). This paper develops an approach to coordinate these two areas of international law and to fill prevailing regulatory gaps in the TRIPS Agreement4 with regard to access and benefit sharing requirements. The explosion of new technologies and discoveries in the field of modern biotechnology in the past 30 years has tremendously intensified the interest of scientists, pharmaceutical companies, and the agro-industry in the economic value of traditional knowledge (TK). TK is generally understood as knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles.5 TK regarding the appearance, use, and effects of plants and animals can increase the efficiency of bioprospecting, i.e. the scientific search for naturally occurring chemical compounds, genes, micro- and macro-organisms, and other valuable biological material, by more than 400%.6 While IPRs offer incentives for private investors for such promising activities through the granting of patents on these ‘new’ products derived from TK, 2

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79 (CBD).

3

Secretariat of the CBD, Governments fulfil their commitment: Access and benefit-sharing treaty receives required number of ratifications to enter into force, 14 July 2014, available via: http://www. cbd.int/press-releases (accessed on 19 September 2014). 4 Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, UNTS 1867, 154 (WTO Agreement)), 15 April 1994, UNTS 1869, 299 (TRIPS). 5 See Art. 8 (j) CBD. The term ‘traditional knowledge’ encompasses a wide array of meanings and there is not yet an accepted definition at the international level. The World Intellectual Property Organization (WIPO) uses a broader terminology in referring to “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.” See http://www.wipo.int/tk/en/tk/ (accessed on 10 May 2015). Moreover, the WIPO uses the term ‘traditional knowledge holder’ to refer to “all persons who create, originate, develop and practice traditional knowledge in a traditional setting and context. Indigenous communities, peoples and nations are traditional knowledge holders, but not all traditional knowledge holders are indigenous.” WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998–1999), 2001, 26. 6 Traditional knowledge (TK) can therefore cut the cost of pharmaceuticals research and development by half. See Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries (2001), 170.

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indigenous and local communities – who contributed to the development in the first place – are often excluded from the resulting benefits.7 A number of cases of ‘biopiracy,’8 i.e. the controversial patenting of TK obtained without the consent and with little or no compensation of the holders, have been publicly discussed since the 1990s. In 1995, the United States Patent and Trademark Office (USPTO) granted a patent on the “use of turmeric in wound healing.” The Indian government requested re-examination of the patent and referred to more than a hundred years old Sanskrit texts documenting that this property of turmeric (Curcuma longa) was well known to traditional communities in India. The patent was finally revoked by the USPTO due to a lack of novelty.9 It was the first time a patent based on TK was successfully challenged by a developing country.10 Another landmark example concerns derivates of the neem tree (Azadirachta indica), known for its anti-bacterial qualities. The European Patent Office (EPO) granted a patent on the “method for controlling fungi on plants by the aid of a hydrophobic extracted neem oil” to the US company WR Grace & Co. in 1994.11 Following the issue of the patent, the price of the pesticide increased dramatically.12 After representatives of Indian farmers and international non-governmental organisations challenged the patent, it was invalidated by the EPO in 2000 since biopesticidal properties of neem

7 Indigenous and local communities have developed approximately 75% of the most commonly used plant-gained prescription drugs. See John Woodliffe, Biodiversity and Indigenous Peoples, in: Catherine Redgwell/Michael Bowman (eds.), International Law and the Conservation of Biological Diversity (1996), 255, 258. 8

In analogy to the concept of ‘intellectual piracy,’ Pat Money developed the term ‘biopiracy’ in the 1990s. See Graham Dutfield, Prior Informed Consent and Traditional Knowledge in a Multicultural World, in: Toshiyuki Kono (ed.), Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development (2009), 261, 264. 9 See Biswajit Dhar/R. V. Anuradha, Access, Benefit-Sharing and Intellectual Property Rights, The Journal of World Intellectual Property 7 (2004), 597, 602. 10

See WIPO/World Trade Organization (WTO), Integrating Intellectual Property Rights and Development Policy: Report of the Commission on Intellectual Property Rights (2002), 76, available at: http://ecipit.org.eg/arabic/pdf/Integrating_IPR_and_Development_Policy.pdf (accessed on 27 February 2015). 11 12

Ibid., 76.

Federico Lenzerini, Biogenetic Resources and Indigenous Peoples’ Rights, in: Francesco Francioni (ed.), Biotechnologies and International Human Rights (2007), 191, 212.

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seeds were known and used in India for more than 2000 years.13 These cases indicate the inherent conflict of interests between IPRs and the protection of TK.14 Since TK is located at the interface of different branches of international law, relevant legal instruments touching on its protection cover binding treaties15 as well as soft-law instruments in the domain of environmental law, human rights law,16 and intellectual property (IP) law. The CBD and its NP is the most important international treaty dealing with TK in the bio-sector. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), on the other hand, provides the international framework for the protection of IP. Both treaties can be considered cornerstones of international law and are widely signed. The TRIPS has 161 members17 while the CBD provides for global coverage with 196 States parties.18 Both treaties present two different approaches to TK. The CBD on the one hand intends to protect TK, whereas the inherent objective of the TRIPS is to facilitate commerce, and therefore, the TRIPS rather strives to make TK useable for a broader public and improves the economic benefits thereof.

13 Charles Mc Manis/Yolanda Terén, Trends and Scenarios in the Legal Protection of Traditional Knowledge, in: Graham Dutfield/Tzen Wong (eds.), Intellectual Property and Human Development: Current Trends and Future Scenarios (2010), 139, 151. 14 Another often cited case concerns the patenting of appetite-suppressing elements of the Hoodia Cactus (P57) known to the San people of the Kalahari Desert. 15 Such as Art. 15 (1)(b) and (c) of the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS 993, 3 (ICESCR). Albeit the ICESCR does not refer explicitly to TK, the Committee on Economic, Social and Cultural Rights (CESCR) has clarified in its General Comment No. 17 on Art. 15 (1)(c) ICESCR that the obligation to protect also applies to TK. See CESCR, General Comment No. 17 on the Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She Is the Author (Art. 15, para. 1 (c) Covenant), 12 January 2006, UN Doc. E/C.12/GC/17 (2006), para. 32. Also the United Nations Convention to Combat Desertification, 17 June 1994, UNTS 1954, 3 (UNCCD), established along with the CBD, contains various provisions on TK relevant to combat desertification and mitigate the effects of drought. See Art. 16 (g), Art. 17 (c) UNCCD. 16

The United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, International Legal Materials (ILM) 46 (2007), 1013 (UNDRIP), is the first international instrument to address indigenous peoples’ rights in a comprehensive manner. It contains several provisions upholding the rights of indigenous peoples to TK. See Art. 11, Art. 31 (1), and Art. 24 (1) UNDRIP. 17

See Contracting Parties/Signatories to the TRIPS, available at: http://www.wipo.int/wipolex/en/ other_treaties/parties.jsp?treaty_id=231&group_id=22 (accessed on 9 June 2015). 18

See ratification status of the CBD, available at: https://treaties.un.org/pages/ViewDetails.aspx? src=TREATY&mtdsg_no=XXVII-8&chapter=27&lang=en#1 (accessed on 9 June 2015).

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This paper addresses the divergences between the regime for IPRs and the regime for biodiversity conservation. After introducing the notion of conflict between treaties and identifying areas of intersection between the CBD and the NP on the one hand and the TRIPS Agreement on the other, coordination between them will be reached through interpretation of Article 27 (2) TRIPS. Lastly, some approaches for the possible legal protection of TK will be presented.

II. Conceptual Conflicts between the Agreement on Trade Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity The TRIPS aims to reduce distortions and impediments to international trade in requiring its members to comply and implement the international minimum standards for IP protection.19 As part of the Marrakesh Agreement Establishing the World Trade Organization, every State becoming a signatory to the WTO must automatically also adhere to the TRIPS.20 The relevant category of IP with regard to the development of drugs, chemicals, and agro-products are patents. Exclusive monopoly rights are conferred on the individual inventor of a new process or product for a limited period of time. The motive of granting such a reward is to make the inventor publically disclose the invention after the expiration of the period of patent protection.21 Following cases like the patenting of properties of turmeric and neem, the debate on biopiracy grew in parallel to the emergence of the TRIPS. These biopiracy concerns were addressed by the CBD, being the first international agreement to refer

19 Michael Bowman, Intellectual Property Rights, Plant Genetic Resources and International Law: Potential Conflicts and Options for Reconciliation, International Journal of Intellectual Property Management 4 (2007), 277, 280. 20 Therefore, it guarantees the recognition and the enforcement of intellectual property rights (IPRs) by the authority of the WTO’s dispute settlement mechanism. Johanna Gibson, Intellectual Property Systems, Traditional Knowledge and the Legal Authority of Community, European Intellectual Property Review 26 (2004), 280, 285. 21

Ian Walden, Intellectual Property Rights and Biodiversity, in: Redgwell/Bowman (eds.) (note 6), 172; Geertrui van Osterwalle, Holder and User Perspectives in the Traditional Knowledge Debate: A European View, in: Charles Mc Manis (ed.), Biodiversity and the Law: Intellectual Property, Biotechnology and Traditional Knowledge (2007), 355, 359; and Daniel J. Gervais, The TRIPS Agreement: Drafting History and Analysis (2003), 65.

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explicitly to TK.22 However; the CBD lacks credible enforcement mechanisms.23 Although the TRIPS and the CBD were developed at the same time, they have travelled separate historic pathways.24 The International Law Commission (ILC) concludes in this respect that “trade law and environmental law […] emerge from different types of policy and that may have an effect on how the relevant rules are interpreted and applied.”25 Hence, the prevailing inconsistencies between both agreements can create problems at the implementation stage.

A. Categorisation of the Conflict

Conflicts between treaties are not rare in international law due to the fragmentary nature of its specialised and autonomous spheres of legal practice. International law today consists of multiple sources, which have not been drafted by the same actors.26 Thus, they are not always coherent and overlap.27 To date, no universally agreed definition of conflicts between treaties exists.28 A notion of conflict between treaties stricto sensu was first advocated by Wilfred Jenks and taken up in several WTO panel decisions.29 This notion refers to the situation 22 Kuei-Jung Ni, Traditional Knowledge and Global Lawmaking, Northwestern Journal of International Human Rights 10 (2011), 85, 87. 23 Critics have also noted that the provisions of the CBD remain very vague and ambiguous instead of imposing specific obligations on Member States. See for example Art. 8 CBD: “as possible […] as appropriate.” See Mc Manis/Terén (note 12), 143. 24 They were concluded in different fora, by different negotiators, and thus with different objectives and almost no consultation. Mitsuo Matsushita/Thomas J. Schoenbaum/Petros C. Mavroidis, The World Trade Organization: Law, Practice, and Policy (2006), 712. 25 International Law Commission (ILC), Report on the work of its fifty-eighth session, UN Doc. A/ 61/10 (2006), para. 24 (ILC Fragmentation Report). 26 This resulted in “conflicts between rules or rule-systems, deviating institutional practices and possibly, the loss of an overall perspective on the law.” Ibid., para. 8, see also para. 482, 483. 27

Nele Matz-Lück, Conflict between Treaties, MPEPIL, para. 3, available via: http://www.mpepil. com (accessed on 19 September 2014). 28 29

Ibid., para. 5.

WTO, Indonesia – Certain Measures Affecting the Automobile Industry, Report of the Panel of 23 July 1998, WT/DS54/R, WT/DS59/R, WT/DS64/R, para. 626, and id., Turkey – Restriction on Imports of Textiles and Clothing Products, Report of the Panel of 31 May 1999, WT/DS34/R, para. 9.88. See also Erich Vranes, The Definition of ‘Norm Conflict’ in International Law and Legal Theory, Euro-

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“where a party to two treaties cannot simultaneously comply with its obligation under both treaties.”30 It shows great similarities to Hans Kelsen’s definition of conflict of norms: “if in obeying or applying one norm, the other one is necessarily violated.”31 Accordingly, this narrow notion equates a conflict between treaties with a conflict of norms since only situations of incompatible treaty obligations would be considered a conflict.32 Derogation is the usual mechanism to resolve this situation. The narrow approach to conflict of norms was criticised by a number of authors for being too restrictive. For Erich Vranes the narrow definition of conflict fails to recognise that a permissive norm may conflict with an obligation or a prohibition and therefore excludes the application of established conflict principles.33 His definition of norm conflict therefore reads: “there is a conflict between two norms, one of which may be permissive, if in obeying or applying one norm, the other one is necessarily or possibly violated.”34 Ralf Michaels and Joost Pauwelyn differentiate between conflicts of norms within legal systems and conflicts of laws between legal systems. In referring to Andreas Fischer-Lescano and Gunther Teubner’s comparable approach, they propose to solve the latter type of conflicts in public international law through private international law solutions, such as the functional approach to conflict of laws.35 Pauwelyn approaches conflict in terms of breach and also adopts a broader concept of conflict according to which two norms are “in a relationship of conflict if one constitutes, has led to, or may lead to, a breach of the other.”36 He argues that the typical conflicts are pean Journal of International Law 17 (2006), 395, 399 et seq., and Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law relates to other Rules of International Law (2003), 193 et seq. 30 See C. Wilfred Jenks, Conflict of Law-Making Treaties, British Yearbook of International Law 30 (1953), 401, 426. 31

See Hans Kelsen, Derogation, in: Ralph Abraham Newman (ed.), Essays in Jurisprudence in Honor of Roscoe Pound (1962), 349. 32

Rüdiger Wolfrum/Nele Matz, Conflicts in International Environmental Law (2003), 6.

33

Vranes (note 29), 396.

34

Ibid., 415.

35

Ralf Michaels/Joost Pauwelyn, Conflict of Norms or Conflict of Laws? Different Techniques in the Fragmentation of Public International Law, Duke Journal of Comparative & International Law 22 (2010), 369, 376. 36

Pauwelyn (note 29), 176.

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intra-systemic conflicts between interacting sub-branches of international law37 and distinguishes between ‘inherent normative conflicts’ and ‘conflicts in the applicable law.’38 A wider definition of conflict was also adopted in the WTO panel report in Bananas III, recognising the possibility of conflict between an obligation and a right.39 Some authors have also opted for a broader definition of conflict between treaties that is not restricted to a conflict of norms.40 In this regard, Rüdiger Wolfrum’s and Nele Matz’s definition of conflict between treaties also includes divergences or inconsistencies between treaties that do not establish contradicting obligations.41 They differentiate between different categories of conflicts, such as ‘conceptual conflicts between different approaches or programs;’ ‘conflicting objectives;’ ‘conflicting obligations;’ ‘conflicts in the implementation phase;’ and ‘political conflicts.’ They note that crosscutting conflicts might also occur among these categories.42 Hence, a treaty might frustrate the goals of another treaty without the existence of any strict incompatibility between their provisions.43 In the case of a ‘programmatic conflict,’ two rules or principles simply suggest different ways of dealing with a problem.44 As these authors point out, more broadly defined conflicts are equally relevant as they “may have the same negative effects as the more narrowly defined conflicts” with regard to the implementation and effectiveness of treaties.45 Taking a broad notion of conflict between treaties as a basis, attempts to coordinate the diverging 37

Ibid., 18.

38

Ibid., 176.

39

WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas (Bananas III), Report of the Panel of 25 September 1997, WT/DS27/R, para 7.159. 40

See, e.g., Karl Engisch, Die Reinheit der Rechtsordnung (1935), 46; Friedrich Klein, Vertragskonkurrenz, in: Karl Strupp (ed.), Wörterbuch des Völkerrechts (1962), 555; Hans Aufricht, Supersession of Treaties in International Law, Cornell Law Quarterly 37 (1952), 655; Dirk Falke, Vertragskonkurrenz und Vertragskonflikt im Recht der WTO: Erste Erfahrungen der Rechtsprechung 1995–1999, Zeitschrift für Europarechtliche Studien 39 (2000), 307, 328, cited in Vranes (note 29), 406. 41

Wolfrum/Nele Matz (note 32), 6.

42

Ibid., 7 et seq.

43

Ibid., 6; and Pauwelyn (note 29), 175.

44

See ILC Fragmentation Report (note 25), para. 25.

45

Wolfrum/Matz (note 32), 6.

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norms usually aim at upholding the content of regulation of both treaties to the greatest possible extent by overcoming the contradictions between them, without subjugating one to the other.46 Against this background, the question arises whether there exists an inherent conflict between the provisions of the CBD and the NP on the one hand and those of the TRIPS Agreement on the other hand. This question is highly controversial since the United States (US), Canada, Australia, Korea, and Japan maintain that the objectives and purposes of both are not in conflict with each other.47 Developing countries on the contrary, believe that there is an inherent conflict between the TRIPS and the CBD and insist on the need to harmonise the two agreements.48 Both treaties are governed by principles pointing in very different directions and tensions between the individualistic and commercial objectives of the TRIPS Agreement and the comprehensive socio-ecological principles of the CBD framework do exist.49 The nature of the norms of the TRIPS Agreement is of a ‘bilateral/reciprocal’ nature with the goal of protecting IPRs as exclusive monopoly rights in the service of open-market principles and free trade. Whereas, the obligations laid down in the CBD are more ‘integral’ as they entail ‘collective/universal’ values such as the conservation of biodiversity and the fair sharing of benefits arising from IPRs based on the use of biological resources and related TK.50 If at all, the divergences in the overarching objectives of the TRIPS Agreement and those of the CBD and the NP would qualify as what Matz-Lück calls a “programmatic conflict.”51 A programmatic conflict would be caused by the divergences and inconsistencies between the branches of international trade law and international environmental law, which overlap with regard to the

46

Ibid., 133; Matz-Lück (note 27), para. 19.

47

See WTO, Council for Trade-Related Aspects of Intellectual Property Rights, The Relationship between the TRIPS Agreement and the Convention on Biological Diversity, IP/C/W/368/Rev.1 (2006), para. 8, available at: https://www.wto.org/english/tratop_e/trips_e/ipcw368_e.pdf (accessed on 27 February 2015). 48

Ibid., para. 15.

49

Jan Neumann, Die Koordination des WTO-Rechts mit anderen völkerrechtlichen Ordnungen: Konflikte des materiellen Rechts und Konkurrenzen der Streitbeilegung (2002), 273, and Nathalie Bernasconi-Osterwalder et al., Environment and Trade: A Guide to WTO Jurisprudence (2006), 308. 50

See Pauwelyn (note 29), 72.

51

Matz-Lück (note 27), para. 6. See also Neumann (note 49), 273.

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protection of TK.52 In this regard, Hanns Ullrich states that “the true problems of the relationship between protecting biodiversity, promoting development, and protecting inventions, therefore, do not lie in the texts of the relevant conventions, agreements, and statutes, but in the frictions resulting from the interaction between the regulatory systems they establish.”53 For this reason, the main differences between the CBD and the NP on the one hand and the TRIPS Agreement on the other will be examined in more detail in the following section.

B. Areas of Intersection

In comparing the provisions of the TRIPS and those of the CBD framework, two major differences become evident. First, the broad scope of protection for patent rights under the TRIPS contradicts the restrictive understanding of access to resources and/or related TK of the CBD and the NP. Second, while the CBD demands protection for TK, the conditions set under the TRIPS do not enable the protection of TK under patent law.

1. Broad Scope of Patent Protection v. Access and Benefit Sharing Requirements The CBD stipulates as one of its objectives the fair and equitable sharing of benefits (BS) arising out of the utilisation of genetic resources and related TK.54 It further recognises national sovereign rights over resources in its preamble and Articles 3 and 15 (1) CBD.55 The exercise of these rights also includes the right to determine access

52 See Hanns Ulrich, Traditional Knowledge, Biodiversity, Benefit-Sharing, and the Patent System: Romantics v. Economics?, in: Francesco Francioni/Tullio Scovazzi (eds), Biotechnology and International Law (2006), 202. 53

Ibid., 221.

54

See Art. 1 CBD.

55

See CBD preamble: “Reaffirming that States have sovereign rights over their own biological resources”; Art. 3 CBD: “States have […] the sovereign right to exploit their own resources […]”; and Art. 15 (1) CBD: “Recognizing the sovereign rights of States over their natural resources”.

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to it.56 Article 15 (5) CBD mandates that access shall be subject to prior informed consent (PIC) of the provider country, if not otherwise determined.57 According to Article 15 (4) CBD, if access is granted, it must be on the basis of mutual agreed terms (MAT).58 Consequently, the CBD takes TK and related genetic resources out of the public domain.59 The access and benefit sharing (ABS) system was further elaborated upon in the non-binding Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization (BGL), designed to assist States in drafting legislative, administrative, or policy measures.60 Also, the NP reinforces and further develops the ABS devices.61 Particularly, Article 5 (5) NP mandates that benefits from its utilisation are shared with the original TK holders. The TRIPS on the other hand, in Article 27 (1), allows patents to be “available for any inventions, whether products or processes, in all fields of technology.” Concerning the conditions on patent applicants set in Article 29 (1) TRIPS, States are not obliged to require a disclosure of the source of origin and proof that PIC has been obtained and MAT have been negotiated, nor does it require the IPR holder to share benefits of its use.62 It thus provides patentability even in the case of unauthorised use of genetic resources and/or associated TK.

56

Biodiversity, unlike the atmosphere and the ocean is not ‘common heritage of mankind,’ but rather considered a ‘common concern’ and as such subject to access and benefit-sharing (ABS) devices. See Tade M. Spranger, Indigene Völker, Biopiraterie und Internationales Patentrecht, Gewerblicher Rechtsschutz und Urheberrecht 103 (2001), 89, 91. 57 See Art. 15 (5) CBD: “Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party”. 58 See Art. 15 (4) CBD: “Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article”. 59 Biswajit Dhar, The Convention on Biological Diversity and the TRIPS Agreement: Compatibility or Conflict?, in: Christophe Bellmann/Graham Dutfield/Ricardo Meléndez Ortiz (eds.), Trading in Knowledge: Development Perspectives on TRIPS, Trade, and Sustainability (2003), 77, 86. 60 COP, Decision VI/24/A, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of Their Utilization, 19 April 2002, UN Doc. UNEP/CBD/COP/ 6/20 (2002), 262–278 (BGL). 61

Arts. 7 and 16 (1) NP require States to take measures to ensure that TK is accessed in accordance with prior informal consent (PIC) (or approval/involvement of ILCs) and mutual agreed terms (MAT). 62

Art. 29 (1) TRIPS only stipulates “that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date”.

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2. Individual IPRs v. Protection of Collectively Held TK in Biodiversity Conservation The CBD acknowledges the importance of TK for the protection of biodiversity in Article 8 (j) CBD.63 This provision stipulates that contracting parties shall “encourage the equitable sharing of the benefits arising from the utilization of [TK].”64 Article 8 (j) CBD essentially aims at the recognition of TK as IP and poses the question of compatibility with the TRIPS. This concerns, in particular, Article 4 TRIPS (Most-Favoured-NationTreatment), i.e. the obligation to accord any advantage, favour, privilege, or immunity granted to nationals of any other country (not just WTO members) to nationals of all WTO members. In cases of different sharing arrangements with nationals of different countries, this obligation might be violated if diverging IPR standards are agreed in relation to the same product or process.65 The TRIPS in contrast, does not offer any protection for TK. Article 27 (1) TRIPS stipulates four substantive patentability requirements:66 the claimed product or process needs to (1) be an invention, (2) be novel, (3) involve an inventive step,67 and (4) be susceptible of industrial application.68 Due to its characteristics, TK essentially fails to meet these requirements: (1) TK is generated and preserved by indigenous communities and as such not to be considered an individual asset, but is rather collectively held; (2) it has ancient roots and developed over a long period of time which makes it difficult to identify the actual origin of it, especially in cases where it is to be found in different places on the planet as communities dispersed; (3) TK is transmitted orally and 63 Art. 8 (j) CBD encourages, but does not oblige each contracting party, as far as possible and as appropriate, “[s]ubject to its national legislation, [to] respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and [to] promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices […]” (emphasis added). 64

Art. 8 (j) CBD (emphasis added).

65

See Ulrich (note 52), 201, 225; and Richard G. Tarasofsky, The Relationship between the TRIPS Agreement and the Convention on Biological Diversity: Towards a Pragmatic Approach, Review of European Community and International Environmental Law 6 (1997), 148, 150. 66

See Art. 27 (1) TRIPS.

67

Also referred to as ‘non-obviousness.’ See Peter-Tobias Stoll/Jan Busche/Katrin Arend, WTO – Trade-related Aspects of Intellectual Property Rights (2009), 483. 68

Also referred to as ‘useful.’ See ibid., 485.

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typically not codified; (4) contrary to the common belief, TK is not static and old, but a living body of knowledge that evolves and changes dynamically over time responding to changing environments. ‘Traditional’ refers solely to the informal customary practices of ILCs through which TK is developed.69 Thus, TK is generally regarded as information in the ‘public domain’70 and as such vulnerable to misappropriation.71 This ignores the fact that TK may be subject to customary laws that recognise other forms of collective ownership or possession rights.72

3. Regulatory Gap Rather than Normative Conflict What can be inferred is that it is hard to sustain any claim of a direct normative conflict between the norms of the CBD and the NP on the one hand and those of the TRIPS Agreement on the other.73 Applying the ‘test of violation’ proposed by Vranes – namely whether the application of the TRIPS provisions on patents necessarily or potentially violates the CBD and NP norms on ABS and whether compliance with the ABS requirements necessarily or potentially violates the TRIPS provisions – results in the conclusion that there is no genuine conflict of norms between the two treaties’ systems since compliance with both is possible.74 In addition, the divergences between the ABS requirements in the CBD and NP and the patent rules of the TRIPS Agreement neither qualify as what Pauwelyn calls an ‘inherent normative conflict’ since they do not breach each other in and of itself, nor do they qualify as a ‘conflict in the applicable law’ because the implementation of

69 See Mc Manis/Terén (note 12), 140; Ni (note 22), 86; and Nuno Pires de Carvalho, From the Shaman’s Hut to the Patent Office: A Road under Construction, in: Charles Mc Manis (ed.) (note 21), 243, 244. 70

Carlos M. Correa, Traditional Knowledge and Intellectual Property: Issues and Options Surrounding the Protection of Traditional Knowledge: A Discussion Paper, Quaker United Nations Office (2001), 3. 71

In requiring States parties to provide means for the protection of IPRs on plant varieties, Art. 27 (3)(b) TRIPS allows the rights of ILCs who are holders of these resources and related TK to be usurped. See Lenzerini (note 12), 215. 72

Correa (note 70), 3.

73

Neumann (note 49), 272.

74

Vranes (note 29), 415.

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the patent provisions of the TRIPS Agreement does not automatically breach the ABS requirements. The problem is rather, that the TRIPS Agreement does not require IPR holders to share the benefits with the communities holding the TK used for the invention.75 However, nothing in the TRIPS Agreement actually places a limitation on the sharing of benefits arising from IP protection in relation to inventions incorporating TK as required by the CBD and the NP. The TRIPS Agreement simply does not cover ABS or the protection of TK, but neither does it prohibit or make it impossible.76 In this regard, the difference between a conflict of norms and a regulatory gap must be kept in mind.77 The TRIPS provisions are only applied after the genetic resources and related TK have been extracted and therefore do not curtail the requirements concerning its access set out in Article 15 CBD.78 Based on the abovementioned differences between both agreements, problems can arise in cases where a patented invention is based on genetic resources and/or associated TK not acquired in conformity with the CBD principles.79 This is particularly true with regard to the implementation of the obligations derived from the agreements by States parties to both treaties. According to the rule pacta sunt servanda, codified in Article 26 Vienna Convention on the Law of Treaties (VCLT),80 States parties to the CBD as well as the TRIPS must respect both treaties. Since almost all States – with the exception of the US – have ratified the CBD, this dilemma is not unlikely.81 It is even more problematic for States parties to the NP. This can have significant implications – not only for the holders of TK, but also for biotechnological, pharmaceutical, and agricultural industries. Therefore, a harmonising interpretation of TRIPS norms in the light of the ABS requirements of the CBD and the NP is 75

Bernasconi-Osterwalder et al. (note 49), 310.

76

Ibid., 309.

77

Neumann (note 49), 272.

78

Neumann also notes in this regard that the sovereignty of States within the meaning of Art. 3 CBD is solely an initial one, ending with the grant of rights of access to genetic resources and related TK in accordance with Arts. 15 (1)–(5) CBD. Ibid., 272. 79

Stoll/Busche/Arend (note 67), 512.

80

See Art. 26 Vienna Convention on the Law of Treaties, 13 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”. 81

See ratification status of the CBD (note 18).

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needed in order to streamline the divergences between the CBD and the NP on the one side and the TRIPS Agreement on the other. This will hopefully result in filling existing gaps in the TRIPS Agreement.82

III. Means for Harmonisation As the divergences between the TRIPS Agreement on one side and the CBD and the NP on the other do not cause a genuine conflict of norms, conventional conflict rules like the lex posterior and lex specialis maxim cannot be considered suitable tools to be applied to the relationship between these agreements. As Pauwelyn points out, these tools were designed for intra-systemic conflicts of norms within legal systems and not for horizontal inter-systemic conflicts of laws between legal systems in casu.83 Likewise, conflict rules enshrined in the respective treaties are inadequate to deal with the problem at hand. While the TRIPS does not contain any relevant conflict clause at all,84 the conflict rule enshrined in Article 16 (5) CBD solely mentions the potential for divergences between IPR and CBD provisions but does not offer any solution.85 Article 22 (1) CBD only serves as a conflict rule in the specific case of a serious damage or threat to biological diversity.86 Moreover, according to the States parties of the CBD, Article 22 (1) CBD cannot govern the relationship between the 82 According to Birnie and Boyle “these [CBD] provisions may be accommodated under existing categories of [IPRs].” See Patricia W. Birnie/Alan E. Boyle, International Law and the Environment (2nd ed. 2002), 735. 83

Michaels/Pauwelyn (note 35), 357 and 367.

84

COP, The Convention on Biological Diversity and the Agreement on Trade-related Intellectual Property Rights (TRIPS): Relationships and Synergies, 5 October 1996, UN Doc. UNEP/CBD/COP/ 3/23 (1996), para. 4.40: “The TRIPS Agreement contains no explicit reference to its relationship to the Convention on Biological Diversity or any other environmental agreement”; and Bernasconi-Osterwalder et al. (note 49), 308. 85 Article 16 (5) CBD recognises that “patents and other intellectual property rights may have an influence on the implementation of [the CBD]”. 86 Article 22 (1) CBD stipulates that the provisions of the CBD “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” (emphasis added). Neumann argues that the object and purpose of the second half sentence would not suggest a temporal restriction concerning the scope of the clause and therefore is not limited to agreements already effective at the time of adoption or entry into force of the CBD, thus including the TRIPS. See Neumann (note 49), 250.

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CBD and the TRIPS.87 In this respect, a majority of States assert that the divergences between the TRIPS and the CBD should not be resolved through derogation, but through harmonisation.88

A. Interpretation of Article 27 (2) TRIPS

Thus far, the examination of the relationship between the CBD and the NP norms on ABS and the TRIPS rules for patents has shown that they may influence each other, but do not exclude one another. Therefore, it would be reasonable to give effect to the principles and objectives of both regimes to the greatest possible extent through harmonising interpretation. Also, States parties to the CBD envisaged a ‘mutual supportive’ implementation of the instruments in Article 16 (5) CBD. This provision obliges States to cooperate in order to ensure that IPRs are supportive of and do not run counter to the objectives of the CBD.89 This supports the reasoning that arising tensions should be solved through interpreting relevant TRIPS provisions in line with the meaning of the CBD.

1. Non-Compliance with CBD Requirements as a Violation of Ordre Public Article 27 (2) TRIPS specifies the reasons for which members may (they are not obliged to) exclude certain inventions from patentability.90 It states that: Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to

87 TRIPS COP (note 84), para. 4.40: “It is not clear how this Article would apply in the case of conflicts with the TRIPS Agreement”. 88

WTO (note 47), para. 13.

89

Art. 16 (5) CBD. This provision caused the European Economic Community to declare that Art. 16 CBD does not curtail the principles and rules of IP protection in the TRIPS. See European Council, Decision 93/626/EEC of 25 October 1993 concerning the conclusion of the Convention on Biological Diversity, OJ 1993 L 309/1. 90

Stoll/Busche/Arend (note 67), 490.

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the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.91

This might provide a legal basis for implementation of both agreements in a mutual supportive manner as it offers a possibility to exclude patents that do not comply with CBD requirements. A harmonising interpretation will be based on the assumption that the CBD requirements on ABS, deduced from the respect for sovereign rights of States over their resources and associated TK, are elementary and fundamental rules of the international community and thus part of ordre public. Following this reasoning, inventions that fail to comply with these requirements in the origination process can be subsumed under the exception to patentability of Article 27 (2) TRIPS as conflicting with ordre public and morality. According to Article 3 (2) Dispute Settlement Understanding, existing provisions of the WTO agreements should be clarified “in accordance with customary rules of interpretation of public international law.”92 The ‘general rule of interpretation’ set out in Article 31 (1) VCLT provides that Article 27 (2) TRIPS should be interpreted “in good faith and 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.”93

2. Limitations of Harmonising Interpretation Yet, harmonising interpretation of treaties faces certain limitations. Emer de Vattel’s first general maxim of interpretation provides that the respective norm must necessarily lack clarity.94 The terms ‘ordre public’ and ‘morality’ are not defined by the TRIPS and thus remain adequately vague to satisfy this requirement. Moreover, the pacta tertiis nec nocent nec prosunt (pacta tertiis) rule, enshrined in Article 34 VCLT,

91

See Art. 27 (2) TRIPS.

92

See Art. 3 (2) Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, UNTS 1869, 401 (DSU). 93 94

See Art. 31 (1) VCLT.

Emer de Vattel, The Law of Nations or The Principles of Natural Law, Translation of the Edition of 1758 by Charles G.Fenwick (1916), bk. II, ch. 17, §263 (Of the Interpretation of Treaties): “[I]t is not allowable to interpret what has no need of interpretation”.

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implies that States can only be bound by what they have expressly consented to.95 For contracting parties to the TRIPS but non parties to the CBD – like the US – the CBD and the NP is res inter alios acta.96 While a harmonising interpretation of Article 27 (2) TRIPS aims to generalise certain interpretations in order to avoid diverging application, the consent of all parties to the TRIPS is essential.97 Otherwise the pacta tertiis rule will be violated due to the risk that the interpretation of Article 27 (2) TRIPS in the light of the ABS requirements might bind the US to the CBD in an informal manner.98 There remains uncertainty in literature if PIC qualifies as a principle of customary international law and thus if the CBD provisions on PIC represent customary norms.99 Some scholars argue that there are several facts that support the existence of a customary principle of PIC at least in environmental law.100 First, it was incorporated in several environmental agreements,101 some of them – like the CBD – are universally accepted. Second, the discussions in international fora on the necessity to comply with PIC,102 reflects opinio juris sive necessitatis.103 Additional instruments like the BGL further display the willingness to support this principle. Third, the incorporation of this principle 95 See Art. 34 VCLT: “A treaty does not create either obligations or rights for a third State without its consent”. 96 Olivier Corten/Pierre Klein, The Vienna Conventions on the Law of Treaties: A Commentary (2011), 887. 97

Matz-Lück (note 27), para. 21.

98

See ILC Fragmentation Report (note 25), para. 448, on the WTO Panel’s decision in EC-Biotechnical Products. 99 See, inter alia, Anja von Hahn, Traditionelles Wissen indigener und lokaler Gemeinschaften zwischen geistigen Eigentumsrechten und der Public Domain (2004). 100 See Jonathan Curci, The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (2010), 148; and 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, 84. 101

Besides CBD provisions mentioned above, see Art. 6 (4) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, UNTS 1673, 126; and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, UNTS 337, 2244. 102 103

See infra, IV.

See, for example, COP, Decision V/16, Article 8 (j) and Related Provisions, UN Doc. UNEP/ CBD/COP/5/23 (2000), Annex, General principles, para. 5: “Access to traditional knowledge, innovations and practices of indigenous and local communities should be subject to prior informed consent or prior informed approval from the holders of such knowledge, innovations and practices”.

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in domestic ABS laws by some countries (mostly developing countries) indicates evolving State practice.104 Moreover, PIC is explicitly mentioned in human rights instruments such as the United Nations Declaration on the Rights of Indigenous Peoples.105 It is further referred to as ‘consultation in good faith’ in the International Labor Organization’s Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.106 Also, various UN treaty bodies such as the Human Rights Committee,107 the Committee on Economic, Social and Cultural Rights,108 as well as the Committee on the Elimination of Racial Discrimination109 have mentioned the principle in their commentaries. Furthermore, the Inter-American system of human rights has substantive judgments on the principle of PIC.110 Assuming that PIC is sufficiently supported by environmental law and human rights instruments to be characterised as a principle of customary international law in statu nascendi, the question arises whether the US can claim persistent objector status. While the persistent objector doctrine provides that every State has the opportunity to opt out of a specific 104

See Dhar/Anuradha (note 8), 626; and Correa (note 70), 12.

105

See Art. 10, Art. 19, Art. 29, and Art. 32 UNDRIP. Although it is a non-binding instrument of the General Assembly and thus soft law, it is considered to represent and affirm existing customary international law. The degree of support for it can display its ability of standard-setting since the UNDRIP was adopted by a majority of 143 States in favour, eleven abstentions, and four against (Australia, Canada, New Zealand, and the United States). See United Nations Bibliographic Information System, available at: http://unbisnet.un.org:8080/ipac20/ipac.jsp?profile=voting&index=.VM&term=ares61295 (accessed on 19 September 2014). Shortly afterwards, these four States changed position and gave their support for the UNDRIP. See http://indigenousfoundations.arts.ubc.ca/home/global-indigenousissues/un-declaration-on-the-rights-of-indigenous-peoples.html (accessed on 26 March 2015). 106 See Arts. 6 and 7 International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, UNTS 383, 1650 (ILO 169). 107

UN Human Rights Committee, General Comment No. 23 on the Rights of Minorities, 8 April 1994, UN Doc. CCPR/C/21/Rev.1/Add.5 (1994), para. 7: “The enjoyment of those 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”. 108

CESCR (note 13), para. 32: “In implementing these protection measures, States parties should respect the principle of free, prior and informed consent of the indigenous authors concerned and the oral or other customary forms of transmission of scientific, literary or artistic production”. 109 UN Committee on the Elimination of Racial Discrimination, General Recommendation on the Rights of Indigenous Peoples, 18 August 1997, UN Doc. A/52/18 (1997), Annex V, para. 4: “The Committee calls in particular upon States parties […] to (d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent”. 110 Inter alia Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 28 November 2007, Series C No. 172.

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customary norm if it explicitly objects to its formation, it does not remain uncontested in literature.111 The most prominent example of inapplicability of the persistent objector doctrine might be the international community’s dismissal of South Africa’s persistent objection to the international law against apartheid.112 Since “State practice and other evidence do not support the existence of the persistent objector rule,”113 Tomuschat concludes “in reality, no such general recognition can be perceived.”114 There is sufficient evidence to disqualify persistent objector status of the US since they have participated in the negotiations of the CBD and even signed it on 4 June 1993.115 The US still takes part in the Conferences of the Parties of the CBD, as well as in the discussions in other fora concerned with this issue. In this regard, the US even voted in favour of the Doha Declaration giving the TRIPS Council the mandate to analyse synergies between the TRIPS and the CBD.116 Lastly, the US showed support for the

111

Tomuschat states in this regard that “it is highly controversial whether indeed a State has the faculty to exempt itself from the rule in statu nascendi, thereby creating an inequality of legal condition that generally should be absent from the arena of international law.” Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law, Recueil des Cours (RdC) 281 (1999), 330. His view is shared inter alia by Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 (1985), 19, 19; Rosalyn Higgins, International Law and the Avoidance, Containment and Resolution of Disputes: General Course on Public International Law, RdC 230 (1991), 63; Bruno Simma/Alfred Verdross, Universelles Völkerrecht (1984), 291 et seq. Tomuschat further reveals serious limitations of the legal foundations of the persistent objector doctrine. Concerning the three judgments of the International Court of Justice (ICJ) upon which it is based, the reasoning favouring the persistent objector doctrine was solely expressed in an obiter dictum in the Asylum Case (Colombia/Peru), Judgment of 20 November 1950, ICJ Reports 1950, 266, and the Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116. Furthermore, the former case only concerns regional law and cannot be translated to the international level. Moreover, in the third case, the Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 25 July 1974, ICJ Reports 1974, 3, the ICJ actually did not rest its judgment on the merits on the persistent objector doctrine. See Christian Tomuschat, Obligations Arising for States Without or Against their Will, RdC 241 (1993), 195, 285 et seq. 112

See Jonathan I. Charney, Universal International Law, American Journal of International Law 87 (1993), 529, 538; and Tomuschat, Obligations Arising for States Without or Against their Will (note 111), 289. 113

See Charney (note 112), 540.

114

Tomuschat, Obligations Arising for States Without or Against their Will (note 111), 285.

115

See ratification status of the CBD (note 18) available at: https://treaties.un.org/pages/View Details.aspx?src=TREATY&mtdsg_no=XXVII-8&chapter=27&lang=en#1 (accessed 9 June 2015). 116

The Doha Declaration will be mentioned in more detail below, see infra, III.A.6.

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CBD objectives in its 2004 submission to the TRIPS Council.117 Consequently, Article 34 VCLT can be interpreted broadly. Christine Chinkin suggests in this regard that it is “perhaps the most effective aspect […] that […] it was drafted in a sufficiently flexible way to allow for future development of international law which could take account of the pervasive influence of treaty principles in other areas.”118 Even if a harmonising interpretation of Article 27 (2) TRIPS might bind the US in an informal manner to ABS requirements of the CBD, this would not infringe the pacta tertiis rule since there exists “a customary international obligation binding on the entire international community that States have to employ their best efforts to curb the phenomenon of unauthorized appropriation of [genetic resources] and TK under their sovereignty […] in order to commercially exploit them.”119 In the Shrimp-Turtle case,120 the WTO Appellate Body (AB) confirmed that under certain circumstances it would be pertinent to refer to non-trade treaties.121

3. Literal Interpretation The ordinary meaning of a provision reflects the parties’ intent.122 Thus, first the objective meaning of Article 27 (2) TRIPS should be clarified in consideration of the specific context in which the terms are used according to Article 31 (2) VCLT.123 The first half-sentence of Article 27 (2) TRIPS states: “Members may exclude from patentability inventions, the prevention […] of the commercial exploitation of which

117 See Council for Trade-related Aspects of Intellectual Property Rights, Article 27.3(B), Relationship between the TRIPS Agreement and the CBD, and the Protection of Traditional Knowledge and Folklore, Communication from the United States, 26 November 2004, IP/C/W/434 (2004), para. 6: “The United States supports these objectives and has consistently encouraged and supported the equitable sharing of benefits arising from the utilization of traditional knowledge and practices of indigenous and local communities”. 118

Christine M. Chinkin, Third Parties in International Law (1993), 138.

119

See Curci (note 100), 158.

120

The Shrimp-Turtle case will be mentioned more in detail below, see infra, III.A.6.

121

See WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/DS58/AB/R, para. 130. 122

Anthony Aust, Modern Treaty Law and Practice (2000), 235.

123

Wolfrum/Matz (note 32), 135.

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is necessary to protect ordre public or morality […].”124 The term ‘commercial exploitation’ is of central significance in this regard. It implies that in order to establish non-patentability the risk must arise from the use and not from the invention as such.125 Article 27 (2) TRIPS does not offer a definition of the terms ‘exploitation’ and ‘commercial.’ From its ordinary meaning, ‘commercial exploitation’ can be understood as “acts of exploitation with the intention of making profit.”126 Moreover, the final half-sentence of Article 27 (2) TRIPS states: “[…] provided that such exclusion is not made merely because the exploitation is prohibited by their law.”127 Hence, the fact that a national law prohibits the exploitation of any invention is not sufficient per se to sustain the exclusion from patentability of any invention.128 Concerning the concept of ordre public, neither does the TRIPS define what is meant by it, nor does a generally accepted notion exist.129 The term ‘public order’ of the Brussels Draft was replaced by the term ‘ordre public’ since it allows for a more broad interpretation.130 While public order is understood as the maintenance of public safety, the French term was preferred as it concerns the “fundaments from which one cannot derogate without endangering the institutions of a given society.”131 Some examples of possible barriers to patentability necessary to protect ordre public are listed in the second half-sentence of Article 27 (2) TRIPS: “[…] including to protect human, animal or plant life or health or to avoid serious prejudice to the environment […].”132 The term ‘including’ may imply that this enumeration is not conclusive. ‘Morality’ is a different concept than ordre public. Also this term is not defined by Article 27 (2) TRIPS, neither does a uniform understanding of it exist at the international level.133 What is meant by ‘morality’ is linked to the perception that a particular conduct is 124

Art. 27 (2) TRIPS (emphasis added).

125

Gervais (note 21), 148.

126

Stoll/Busche/Arend (note 67), 496.

127

Art. 27 (2) TRIPS (emphasis added).

128

See Carlos M. Correa/Abdulqawi Yusuf, Intellectual Property and International Trade: The TRIPS Agreement (1998), 193; and Gervais (note 21), 149. 129

See Stoll/Busche/Arend (note 67), 492; Correa/Yusuf (note 128), 193.

130

See Gervais (note 21), 149; and Stoll/Busche/Arend (note 67), 490.

131

Gervais (note 21), 149.

132

Art. 27 (2) TRIPS (emphasis added).

133

See Stoll/Busche/Arend (note 67), 493.

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correct and reasonable and depends on the cultural values prevailing in a society.134 These values vary between different countries and are subject to change.135 From the isolated examination of the meaning of Article 27 (2) TRIPS, especially of the term ‘commercial exploitation,’ it can be assumed that inventions failing to comply with ABS requirements in the origination process are not included.

4. Systematic Interpretation According to the principle of systematic interpretation provided for in Article 31 (2) VCLT, the term ‘exploitation’ has to be understood in the context with its use in Article 30 TRIPS.136 In the Canada –Pharmaceutical Patents case, the WTO Panel considered ‘exploitation’ as “the commercial activity by which patent owners employ their exclusive patent rights to extract economic value from their patent.”137 Concerning the meaning of ‘commercial,’ attention should be drawn to the distinction made in Article 31 (c) TRIPS between ‘commercial’ and ‘non-commercial.’ This implies that the meaning of ‘commercial exploitation’ within Article 27 (2) TRIPS includes only economic activities carried out with the intention of realising profit.138 In the case of the neem patent, W. R. Grace had this intention. Regarding the concept of ordre public, one could also refer to Article XIV (a) General Agreement on Trade in Services (GATS) using the expression ‘ordre public.’139 The AB defines the term ‘public order’ as the “preservation of the fundamental interests of a society, as reflected in

134

Ibid., 493.

135

Gervais (note 21), 149; Correa/Yusuf (note 128), 193.

136

See Art. 30 TRIPS: “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties”(emphasis added). 137 See WTO, Canada – Patent Protection of Pharmaceutical Products, Report of the Panel of 17 March 2000, WT/DS114/R, para. 7.54. This includes, inter alia, the conclusion of licensing agreements or the manufacture of the patented product. See Stoll/Busche/Arend (note 67), 496. 138 139

Stoll/Busche/Arend (note 67), 497.

See Art. XIV (a) General Agreement on Trade in Services, 15 April 1994, UNTS 1869, 183 (GATS): “[…] nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures […] necessary to protect public morals or to maintain public order”.

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public policy and law.”140 Consequently, the term ‘ordre public’ includes only objectives of central importance for the country concerned,141 whereas no national crisis or emergency is required to exclude inventions from patentability on the grounds of Article 27 (2) TRIPS.142 This implies on the one hand, that States are not allowed to arbitrarily exclude certain inventions from patentability. On the other hand, States are given the necessary freedom and flexibility to determine which elements they consider to be of particular importance for the protection of ordre public.143 Article XIV (a) GATS also uses the term ‘public morals.’ The Panel in US-Gambling defined it as “standards of right and wrong conduct maintained by or on behalf of a community or nation.”144 This implies that if a society considers the acquisition of TK without the requirements of PIC, MAT, and without BS with the original holders immoral, an invention based on TK could be excluded from eligibility to be patented based on Article 27 (2) TRIPS. However, a major obstacle to this is the fact that patentability cannot be simply refused because the invention breaches morality. What is decisive is the use of it.145

5. Teleological Interpretation The interpretation of Article 27 (2) TRIPS in the light of its object and purpose as required by Article 31 (1) VCLT may help to harmonise the conflict between the TRIPS and the CBD.It is to be noted that the majority of all international treaties contain exception clauses like Article 27 (2) TRIPS.146 The object and purpose of allowing States to make exceptions is to ensure the coherence of the national legal

140 See WTO, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body of 7 April 2005, WT/DS285/AB/R, para. 296. 141

The TRIPS goes even further than the General Agreement on Tariffs and Trade concerning the scope of the exception clause since it expressly refers to ‘the environment’ as a protected object. Stoll/ Busche/Arend (note 67), 491. 142

Ibid., 492.

143

Ibid.

144

See WTO, United States – Gambling and Betting Services (note 140), para. 296.

145

Stoll/Busche/Arend (note 67), 493.

146

Ibid.

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order. The general objectives of the TRIPS can be identified with the help of the preamble147 of the WTO Agreement as the overarching treaty: […] optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.148

It is noteworthy that it shares some elements with the preamble of the CBD since both agreements seek to operate in the light of social welfare.149 The specific objectives of the TRIPS are laid down in Article 7, which reads as follows: The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.150

The fact that these objectives are not simply left to the preamble, but included in the body of the agreement reflect their special status. As a ‘should’ provision it is not to be used to reduce the scope of a ‘shall’ provision.151 However, the reference to social and economic development gives States flexibility to adjust patent rights for maintaining the necessary balance with other provisions of fundamental importance.152 Article 7 TRIPS further emphasises the need to balance rights and obligations and thus establishes the principle of equity.153 This enhances the reasoning that Article 27 (2) TRIPS could serve as a legal basis to make exclusions to patentability if the right holder has used his rights without performing his duties. If the ‘inventor’ fails to contribute to social and economic development, such an exception could be

147

Albeit the preamble is not legally binding compared to the provisions of a treaty, it might be an important source for interpretation according to Art. 31 (2) VCLT. 148

See preamble of the WTO Agreement (emphasis added).

149

See CBD preamble: “[…] Recognizing that economic and social development and poverty eradication are the first and overriding priorities of developing countries […]” (emphasis added). 150

See Art. 7 TRIPS (emphasis added).

151

Gervais (note 21), 64.

152

See Bernasconi-Osterwalder et al. (eds.) (note 49), 315.

153

This passage has been taken as a basis for the UN Commission on Human Rights to assume that the WTO panels and the AB should consider human rights law in the interpretation of the TRIPS provisions. Stoll/Busche/Arend (note 67),184.

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justified on the basis of Article 7 TRIPS.154 The principles of the TRIPS are laid down in Article 8, which gives members the regulatory autonomy to restrict patentability for the protection of particular public interests or due to misbehaviour of IPR holders.155 Without doubt, the purpose of this Article is to preserve certain flexibility in the enactment and implementation of IP legislation.156 A major obstacle to the use Article 8 TRIPS as a broad basis to justify exceptions is the notion that such measures must be “consistent with the provisions of this agreement.”157 While this half-sentence might prevent the justification of exceptions not foreseen under the Agreement, it is still possible to justify the exception to patentability on inventions failing to comply with the PIC, MAT, and BS requirements. Though these ABS devices are not required by the TRIPS itself, subsumed under the notion of ordre public, it is an exception foreseen by the TRIPS. Moreover, Article 8 TRIPS cannot be considered a proper exception clause and is thus not subject to a narrow interpretation in dubio mitius.158 In conclusion, based on the teleological interpretation taking into account Articles 7 and 8 TRIPS, as well as the aim of coherence in the national system inherent in Article 27 (2) TRIPS, it can be assumed that inventions failing to comply with the CBD requirements and thus infringing laws of the national legal order can be subsumed under the exception to patentability of Article 27 (2) TRIPS. A situation in which an inventor breaching these fundamental principles would benefit from the grant of a patent is considered immoral and consequently contravenes the notion of ‘morality’ of Article 27 (2) TRIPS as well as the objectives of Article 7 TRIPS. Furthermore, a monopoly protection of genetic resources and/or associated TK originally possessed by indigenous and local communities would be 154

See Gervais (note 21), 64.

155

Art. 8 TRIPS stipulates: “(1) Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. (2) Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology” (emphasis added). See Correa/Yusuf (note 128), 13; Stoll/Busche/Arend (note 67), 189. 156

Correa/Yusuf (note 128), 13.

157

See Art. 8 TRIPS. This half-sentence was added in the negotiations at the insistence of developed countries. See Correa/Yusuf (note 128), 13; and Gervais (note 21), 69. 158

Stoll/Busche/Arend (note 67), 189.

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socially and economically disruptive for those communities and would therefore violate the objectives stipulated in Article 7 TRIPS.159

6. Subsequent Agreements and State Practice Together with the context, any subsequent agreement and practice of the parties regarding the interpretation or the application the treaty’s provisions shall be taken into account according to Article 31 (3)(a) and (b) VCLT.160 Subsequent agreements can be particularly relevant if States parties “notice a lack of clarity or become aware of ambiguities.”161 In this regard, the Council for the TRIPS was instructed by paragraph 19 Doha Declaration “to examine, inter alia, the relationship between the TRIPS and the Convention on Biological Diversity [and] the protection of traditional knowledge and folklore.”162 This mandate is of particular importance as it firstly acknowledges the conflict between the CBD and the TRIPS, secondly implicitly demands for harmonisation of the two agreements, and thirdly shows a willingness of the WTO members to solve the conflict. As subsequent practice is concerned, Article 6 EU Directive on the Legal Protection of Biotechnological Inventions can be taken into account as an example of application of Article 27 (2) TRIPS. This provision specifies in its subparagraphs (2)(a)–(d) which inventions would be unpatentable since their exploitation contradicts ordre public or morality.163 What is noteworthy about this

159

Tarasofsky (note 65), 151.

160

Art. 31 (3)(a) and (b) VCLT provide: “There shall be taken into account, together with the context (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (emphasis added). 161

Wolfrum/Matz (note 32), 140.

162

Doha Ministerial Declaration, 20 November 2001, WT/MIN(01)/DEC/1 (2001), ILM 41 (2002), 746, para. 19 (Doha Declaration). This mandate was based on the Council’s work programme on the review of Art. 27 (3)(b). See Art. 27 (3)(b): “The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement”(emphasis added). 163 See Art. 6 EC Directive 98/44 of 6 July 1998, OJ 1998 L 213, 13: “(1) Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation. (2) On the basis of paragraph 1, the following, in particular, shall be considered unpatentable: (a) processes for cloning human beings; (b) processes for modifying the germ line genetic identity of human beings; (c) uses of human embryos for industrial or commercial purposes; (d) processes for

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provision is that the reason to exclude certain inventions from patentability is not solely based on its commercial exploitation, but rather on the content of the invention and its origination process. This would suggest a rather broad interpretation of Article 27 (2) TRIPS. Moreover, the practice of the WTO Dispute Settlement Body (DSB) might provide some useful insight into how to interpret Article 27 (2) TRIPS. So far, there have been no WTO dispute settlement cases regarding the relationship between the TRIPS and the CBD.164 However, in carrying out its interpretive function, the DSB has made extensive reference to other rules of international law influencing the interpretation and application of the WTO agreements.165 In the 1998 Shrimp-Turtle case, the AB stated that the term ‘exhaustible natural resources’ in Article XX (g) General Agreement on Tariffs and Trade should be read “in the light of contemporary concerns of the community of nations about the protection and conservation of the environment”166 and thus “is not ‘static’ in its content […] but is rather ‘by definition, evolutionary.’”167 The AB based its approach on the objective of sustainable development mentioned in the preamble of the WTO Agreement.168 To support this reasoning, the AB refers to international environmental conventions and declarations, inter alia the CBD.169 To justify its dynamic interpretation ex nunc following Article 31 (3)(c) VCLT, the AB cites the ICJ Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970).170

modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes”. 164

See Bernasconi-Osterwalder et al. (note 49), 315; Stoll/Busche/Arend (note 67), 497.

165

ILC Fragmentation Report (note 25), para. 444.

166

See WTO, United States–Shrimp (note 121), para. 129. Beforehand, the Panel argued that ‘exhaustible natural resources’ refers to “finite resources, such as minerals, rather than biological renewable resources”. 167

Ibid., para. 130.

168

Ibid., para. 129.

169

See ibid., para. 130.

170

ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16.

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7. Travaux Préparatoires According to Article 32 VCLT, “preparatory work of the treaty and the circumstances of its conclusion” can be consulted as a subsidiary source “in order to confirm the meaning resulting from the application of Article 31 [VCLT].”171 In this regard, it might be interesting that the wording of Article 27 (2) TRIPS was taken from Article 53 (a) 1973 European Patent Convention,172 which allows for a broad application of the exception clause by including inventions that already conflict, in the origination process, with ordre public or morality.173

B. Conclusion

The harmonising interpretation of Article 27 (2) TRIPS leads to the result that the TRIPS and the CBD are prima facie compatible. This is based on the assumption that the PIC, MAT, and BS requirements of the CBD and the NP emanating from the States’ sovereign rights over natural resources, form part of ordre public as elementary and fundamental rules of the international community. Rewarding an inventor not complying with these requirements through the grant of a patent would circumvent the reasoning of every patent system. Thus, inventions failing to comply with these requirements already in the origination process can be subsumed under the exceptions to patentability of Article 27 (2) TRIPS.

171

See Art. 31 VCLT.

172

Art. 53 (a) Convention on the Grant of European Patents, 5 October 1973, UNTS 1065, 199 (EPC), provides: “European patents shall not be granted in respect of inventions the publication or exploitation of which would be contrary to ‘ordre public’ or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States”. 173 See Alexander R. Krefft, Patente auf human-genomische Erfindungen: Rechtslage in Deutschland, Europa und den USA (2003), 106; and Daniela Lausmann-Murr, Schranken für die Patentierung der Gene des Menschen: ‘öffentliche Ordnung’ und ‘gute Sitten’ im Europäischen Patentübereinkommen (2000), 141.

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IV. Prospects for Possible Legal Protection of Traditional Knowledge While the interest for TK increases, its rate of erosion of traditional cultures has never been as high as in the current generation.174 This has drawn attention to possible legal solutions for the protection of TK and discussions concerning its protection are taking place in fora of various international organisations.175 By now there is widespread agreement among States on the need for positive protection, i.e. the granting of rights empowering TK holders to protect, promote, and benefit from the commercial exploitation of their TK; as well as for defensive protection, i.e. measures to safeguard illegitimate acquisition and exploitation of TK by third parties.176 A. Positive Protection

While positive protection through conventional IPRs has been proposed,177 practical obstacles are associated with the use of conventional IPRs: first, the acquisition and defence of patents requires substantial financial resources; and second, typical TK holders will most likely lack the necessary IP expertise.178 A more ‘practical’ attempt for the grant of positive rights to TK holders concerns private contractual agreements between the suppliers and users of TK.179 An often mentioned example of the first 174

See Ad-Hoc Open Ended Working Group on Article 8(j) and Related Provisions of the CBD, ‘The Revised Phase One and Phase Two of the Composite Report on the Status and Trends Regarding the Knowledge, Innovations and Practices of Indigenous and Local Communities relevant to the Conservation and Sustainable use of Biological Diversity’, 14 December 2005, UN Doc. UNEP/CBD/ WG8J/4/4, paras. 64 and 65, available at: (accessed on 25 March 2015). 175

Such as in the WIPO; within different working groups of the CBD as well as during the COPs; at the WTO – particularly in the TRIPS Council; the United Nations Educational, Scientific and Cultural Organization; the Food and Agriculture Organization; as well as at the United Nations Conference on Trade and Development. 176 WIPO, Traditional Knowledge and Intellectual Property, Background Brief No. 1, 2, available at: http://www.wipo.int/export/sites/www/tk/en/resources/pdf/tk_brief1.pdf (accessed on 2 March 2015). 177

Protection for example through patents, geographical indications, and trade secrets has been proposed. See Darrell A. Posey/Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (1996), 76 et seq. 178 179

van Osterwalle (note 21), 360.

See Michele Zebich-Knos, Preserving Biodiversity in Costa Rica: The Case of the Merck-INBio Agreement, The Journal of Environment & Development 6 (1997), 180, 183. A less contested ap-

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contractual agreement is the benefit-sharing arrangements between Merck Sharp & Dome and the National Biodiversity Institute of Costa Rica (INBio) of 1991. While this option provides more flexibility to be adapted to a specific situation,180 “a major drawback […] could be the significant disparities in the bargaining power, resources, access to legal advice and negotiating skills between the indigenous community and its counterpart.”181 Lastly, the elaboration of a sui generis system for the protection has been proposed.182 The most noteworthy effort in this field is the drafting of a legal instrument by the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Although it is expected that The Protection of Traditional Knowledge: Draft Articles,183 once adopted, will be of a non-binding nature,184 they might bring a major shift to the IP system.185

B. Defensive Protection

The major proposal with regard to defensive protection is the establishment of a mandatory requirement to disclose the origin of any genetic resource and/or associated TK in patent applications, including the proof that PIC has been obtained.186 proach, however, was chosen in the agreement between the Tropical Botanical Garden and Research Institute and the Kani tribes of Kerala. See Dhar/Anuradha (note 8), 630. 180

Watal (note 5), 177.

181

United Nations Development Programme, Practice note on traditional knowledge, access to genetic resources and benefit sharing (2005), 33, as cited in Mc Manis/Terén (note 12), 149. 182

See van Osterwalle (note 21), 358.

183

Besides the definition of TK (Art. 1) and its beneficiaries (Art. 2), The Protection of Traditional Knowledge: Draft Articles, 2 June 2014, WIPO/GRTKF/IC/28/5, define the scope of protection (Art. 3) and propose provisions on sanctions and remedies in cases of infringement (Art. 4). They also refer to transitional measures (Art. 9) if TK occurs in transboundary situations as well as consistency with the general legal framework, including IP law and the NP. Latest version available at: http://www. wipo.int/meetings/en/doc_details.jsp?doc_id=276361 (accessed on 19 September 2014). 184

See Dutfield (note 7), 276.

185

The Intergovernmental Committee transmitted the text to the 2014 WIPO General Assembly. However, consensus was not reached and the Assembly did not take any action on this matter. WIPO, Assemblies of the Member States of WIPO: Synthesis of Decisions, 54th Series of Meetings, 2014, 7, Item 16; and WIPO, 54th WIPO Assemblies End, PR/2014/769 (2014), available at: http://www. wipo.int/pressroom/en/articles/2014/article_0016.html (accessed on 9 June 2015). 186 There was a considerable debate whether this can be a substantive or a formal condition of patentability. See van Osterwalle (note 21), 365; and de Carvalho (note 69), 249.

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India together with other developing countries requested the amendment of Article 29 TRIPS, namely to include an additional section 29bis on “Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge.”187 Members have remained divided on the ‘disclosure’ proposal since 2008.188 Another means to prevent erroneous patents would be to make relevant, disqualifying information available to patent examiners through the establishment of databases.189 Besides the fact that orally transmitted TK might be difficult to document, also this option carries some impediments since it essentially places TK hitherto regarded ‘secret’ by indigenous and local communities in the public domain.190

V. Conclusion As illustrated in this paper, coordination between the TRIPS Agreement and the CBD through harmonising interpretation of Article 27 (2) TRIPS in light of ABS requirements set out in the CBD and the NP, ensures consistency between their objectives and ultimately serves the coherence of international law. 187 The draft of Art. 29bis was proposed by Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand, and Tanzania. See WTO, Doha Work Programme – the Outstanding Implementation Issue on the Relationship between the TRIPS Agreement and the Convention on Biological Diversity, Communication by the aforementioned States, 5 July 2006, WT/GC/W/564/Rev.2 (2006), para. 2: “Where the subject matter of a patent application concerns, is derived from or developed with biological resources and/or associated traditional knowledge, Members shall require applicants to disclose the country providing the resources and/or associated traditional knowledge, from whom in the providing country they were obtained, and, as known after reasonable inquiry, the country of origin. Members shall also require that applicants provide information including evidence of compliance with the applicable legal requirements in the providing country for prior informed consent for access and fair and equitable benefit-sharing arising from the commercial or other utilization of such resources and/or associated traditional knowledge”. 188 See https://www.wto.org/english/tratop_e/trips_e/art27_3b_background_e.htm (accessed on 19 September 2014). The EU has shown willingness to accept a mandatory disclosure requirement in the form of a formal condition. See European Parliament, Directorate-General for External Policies, Policy Department, Intellectual Property Rights on Genetic Resources and the Fight against Poverty, 19 December 2011, EP/EXPO/B/DEVE/FWC/2009-01/Lot5/20 (2011), 18. However, the proposal was objected by the US and Japan for being inconsistent with Art. 29 (1), Art. 32, and Art. 62 (1) TRIPS and for constituting an additional and unnecessary burden for the patent offices and patent applicants. See Dhar/Anuradha (note 8), 608; and de Carvalho (note 69), 252. 189

India gave a landmark example in establishing a ‘Traditional Knowledge Digital Library.’ See de Carvalho (note 69), 248; Mc Manis/Terén (note 12), 153. 190

Dhar/Anuradha (note 8), 625.

International Criminal Tribunals and the Right to a Lawful Judge KEVIN GRIMMEIß(

ABSTRACT: Most international criminal tribunals are ad hoc institutions set up to try one or more concrete cases. This well-established international approach is quite surprising in view of the right to a lawful judge provided for by a multitude of national constitutions. Designed to foreclose the creation of extraordinary tribunals and the removal of cases from the competent judge, the guarantee to a lawful judge has the potential to clash with the layout of international criminal courts. Not only could it be applicable in the international court itself, it can, above all, prevent States from cooperating with a tribunal. The article addresses this conflict and its consequences under international law and the German Constitution. KEYWORDS: International Criminal Tribunal, Lawful Judge, Jus de non Evocando, Court Established by Law, Extraordinary Court, Special Court, State Cooperation, Germany

I. Introduction The denominations of modern international criminal tribunals share a remarkably antithetic connotation. The Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), and the Extraordinary Chambers in the Courts of Cambodia have been praised emphatically for their efforts to end impunity.1 Simultaneously,

( Doctoral Candidate at the University of Würzburg and former intern at the Special Tribunal for Lebanon. I wish to thank Nadia Al-Falaki and Yaye Ndieme Dieng for their valuable assistance. 1

Cf. e.g. Ban Ki-moon, Remarks at Extraordinary Chambers in the Courts of Cambodia, 27 October 2010, available at: http://www.un.org/sg/statements/?nid=4878 (accessed on 19 September 2014); Catherine Ashton, Declaration by the High Representative, on Behalf of the EU, on the Judgment in the Case of Mr. Charles Taylor, 26 April 2012, available at: http://www.consilium.europa.eu/uedocs/cms_ data/docs/pressdata/en/cfsp/129804.pdf (accessed on 19 September 2014).

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the terms of ‘special’ or ‘extraordinary court’ are associated with unfair trials under political pressure.2 This manifest discrepancy points to a potential legal problem. Various constitutions feature the right to a lawful judge,3 the guarantee to not have one’s case removed from the court whose jurisdiction has been established by the general rules applying indiscriminately to everyone.4 How can such a principle be reconciled with the transfer of trials to an international court commonly set up ad hoc? The present article addresses this conflict under international and German law. It examines the origins and scope of the right to a lawful judge before explaining the conditions under which the privilege can affect international proceedings. In a third step, the question of whether or not this right acts as an impediment to international criminal justice is assessed. In conclusion, the article suggests an alternative way of justifying existing interference with the principle of lawful judge.

II. Scope of the Right to a Lawful Judge Understanding the roots of the guarantee to a lawful judge is vital to establish a clear definition of its scope in the different legal orders.

2 Cf. e.g. Amnesty International, When Justice Fails: Thousands Executed in Asia After Unfair Trials (2011), 32 et seq.; Human Rights Watch, Words to Deeds: The Urgent Need for Human Rights Reform (2006), 22 et seq.; id., Human Rights Abuses in Algeria (1994), 21 et seq. 3

Cf. e.g. Art. 17 Constitution of the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Nederlanden), 24 August 1815, Staatsblad, 45, as amended on 25 February 2009, Staatsblad, 120; Section 24 (2) Spanish Constitution (Constitución Española), 29 December 1978, Boletin Oficial del Estado (BOE), 311, as amended on 27 September 2011, BOE 233, I 101931; Art. 25 Constitution of the Italian Republic (Constituzione della Repubblica Italiana), 27 December 1947, Gazzetta Ufficiale della Repubblica Italiana (G.U.) 298, as amended on 23 April 2012, G.U. 95. 4

Emmanuel Jeuland, Le renouveau du principe du juge naturel en France, Zeitschrift für Zivilprozess International 15 (2010), 65, 65, 67.

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A. Origins of the Right

While some controversy remains as to whether the origins of the right to a lawful judge can be traced back to the Magna Carta of 1215 or the French Ancien Régime,5 the conditions actuating its development in the feudal society are undisputed. Despite the fact that the administration of justice gradually vested in the judges, supreme judicial power still remained with the absolute monarch.6 The monarch was free to exercise his prerogative by revoking a case from one judge and entrusting another with it through the act of evocation, by referring it to an extraordinary court, a socalled commission extraordinaire,7 or by deciding without trial by lettre de cachet.8 As common law courts were not subject to the prerogative, the risk of abuse was contained to a certain extent under the English legal system.9 In continental Europe, however, the apparent partiality and inequality induced by a frequent use of the privilege10 received strong criticism by both enlightenment lawyers and the public.11 Their alternative notion was the principle of ‘natural judge,’ whose jurisdiction was to be exclusively determined by the law, not leaving any discretion to the monarch.12 It is not surprising that the principle of natural judge featured prominently in postrevolutionary legislation. It appeared in the French Loi sur l’Organisation Judiciaire of

5

Nicola Picardi, Le Juge Naturel: Principe Fondamental en Europe, Revue Internationale de Droit Comparé 62 (2010), 27, 29. 6

Ibid., 29 et seq.

7

Paolo Alvazzi del Frate, Il Principio del “Guidice Naturale” nel Constituzionalismo della Restaurazione in Francia e Italia, Historia Constitucional 3 (2003), 133, 136. 8

Ulrike Müßig, Recht und Justizhoheit: Der gesetzliche Richter im historischen Vergleich von der Kanonistik bis zur Europäischen Menschenrechtskonvention, unter besonderer Berücksichtigung der Rechtsentwicklung in Deutschland, England und Frankreich (2009), 84. 9

Id., Gesetzlicher Richter ohne Rechtsstaat? Eine historisch-vergleichende Spurensuche (2007), 18 et seq. 10 See for France Picardi (note 5), 32; Müßig (note 8), 85 et seq., 100 et seq. See for Prussia ibid., 241. For a famous example from Prussia, see David M. Luebke, Frederick the Great and the Celebrated Case of the Millers Arnold (1770–1779): A Reappraisal, Central European History 32 (1999), 379. 11

Alvazzi del Frate (note 7), 136 et seq.; Müßig (note 8), 86 et seq., 104 et seq.

12

Picardi (note 5), 33 et seq.

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1790,13 whose Title II Article 17 stipulated: “L’ordre constitutionnel des juridictions ne pourra être troublé, ni les justiciables distraits de leurs juges naturels, par aucune commission, ni par d’autres attributions ou évocations que celles qui seront déterminées par la loi.” The notion was subsequently included in the Constitution of 1791,14 where it materialised in the form of “juge que la loi assigne,”15 introducing the terminology of lawful judge. Inspired by the French Constitution of 1848,16 the Frankfurt Assembly also adopted a provision on the principle of lawful judge in Article X § 175 of its Constitution of the German Empire.17 It was, however, not the first to safeguard the lawful judge on German territory. Individual States, such as the Kingdom of Bavaria18 or the Duchy of Nassau19 had codified the principle of lawful judge earlier on. With the Imperial Constitution of 1848 failing to be enforced, the first constitution to effectively establish the principle throughout Germany was the Weimar Constitution of 1919.20 Throughout the course of the centuries, the notion of lawful judge underwent two important changes. Considering its initial positioning in the sections on the functioning of the judiciary, the lawful judge was regarded as a principle of State structure rather

13 Law on the Judiciary (Loi sur l’Organisation Judiciaire), 24 August 1790, available at: http://fr. wikisource.org/wiki/Loi_sur_l%E2%80%99organisation_judiciaire_des_16-24_ao%C3%BBt_1790 (accessed on 5 August 2014). 14 French Constitution (Constitution Française), 3 September 1791, available at: http://www. conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-lafrance/constitution-de-1791.5082.html (accessed on 5 August 2014). 15

Title III Ch. V Art. 4 French Constitution 1791.

16

Constitution (Constitution), 4 November 1848, available at: http://www.conseil-constitutionnel. fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-de1848-iie-republique.5106.html (accessed on 6 August 2014). The right to a lawful judge is enshrined in Art. 4 French Constitution 1848. 17

Constitution of the German Empire (Verfassung des Deutschen Reiches), 28 March 1849, Reichsgesetzblatt (RGBl.) 101. 18 Title V para. 4 Bavarian Constitution (Bayerische Constitution), 1 May 1808, available at: http:// de.wikisource.org/wiki/Constitution_vom_1._Mai_1808 (accessed on 5 August 2014). 19 Para. 2 Constitution of Nassau (Nassauische Verfassung), 3 September 1814, Verordnungsblatt des Herzogtums Nassau, 18. 20

Art. 105 Constitution of the German Empire (Verfassung des Deutschen Reichs), 11 August 1919, RGBl. 1383.

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than a fundamental right.21 This conception is underlined by the Chartes Constitutionelles of 1814 and 1830,22 where the notion appeared in the immediate vicinity of the prohibition of extraordinary courts, a provision unambiguously directed at State structure. The French Constitution of 1848 was the first to explicitly address the lawful judge in the section on the rights of the citizen, elevating it to the level of fundamental right of the individual. Originally, the concept of natural judge concerned itself with delimiting the monarch’s executive interference in judicial affairs. Consequently, the legislative act of defining the competent judge was regarded as a prerequisite, and not as a possible encroachment on the right to a lawful judge. Yet, constitutional legislators soon discerned that the arbitrary assignment of judges by parliament constituted a similar infringement of equality rights and consequently appended an aspect of pre-establishment to the notion of lawful judge,23 thereby expanding its scope to both executive and legislative intrusions.24

21

Cf. the French Constitution of 1791, which, despite featuring a section on fundamental rights, placed the respective provisions in the section on the functioning of the judiciary. The Bavarian Constitution of 1808 assigned the principle a similar heading. 22

Arts. 62 et seq. French Constitutional Charter (Charte Constitutionelle Française), 14 June 1814, available at: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/lesconstitutions-de-la-france/charte-constitutionnelle-du-4-juin-1814.5102.html (accessed on 7 August 2014); Arts. 53 et seq. French Constitutional Charter (Charte Constitutionelle Française), 14 August 1830, available at: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/laconstitution/les-constitutions-de-la-france/charte-constitutionnelle-du-14-aout-1830.5104.html (accessed on 7 August 2014). 23

Cf. Art. 204 Constitution of 5 Fructidor Year III (Constitution du 5 Fructidor An III), 22 August 1795, available at: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/laconstitution/les-constitutions-de-la-france/constitution-du-5-fructidor-an-iii.5086.html (accessed on 8 August 2014). The aspect of pre-definition is highlighted by the Italian term ‘precostituzione del guidice,’ pre-definition of the judge, which can be used synonymously with ‘natural judge;’ cf. Roberto Romboli, Teoria e Prassi del Principio di Precostituzione del Guidice, Quaderni del Consiglio Superiore della Magistratura 66 (1993), 28, 42. 24 Albin Eser, Il “Giudice Naturale” e la sua Individuazione per il Caso Concreto, Rivista Italiana di Diritto e Procedura Penale 38 (1996) 385, 387 et seq.

448 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 B. Guarantee in International Covenants

Despite its national prominence, the concept of lawful judge lacks equivalent importance on the international level. The Universal Declaration of Human Rights25 confines itself to guaranteeing a hearing in full equality by an independent and impartial tribunal.26 As propositions to include the notion of a pre-established court in the International Covenant on Civil and Political Rights (ICCPR)27 failed,28 its Article 14 (1) transcends the Universal Declaration of Human Rights solely inasmuch as it demands a tribunal established by law. The latter requirement demands that the tribunal be established by an act of parliament,29 thereby covering the executive-related aspect of the notion of lawful judge. The act must define the court’s jurisdiction in the abstract and without regard to the individual case.30 Uncertainty remains as to what extent executive discretion is foreclosed, but the concurring opinion in Kavanagh v. Ireland suggests that it is banned in totality.31 Even so, Sarah Joseph and Melissa Castan go too far in interpreting ‘established by law’ as consistent with the constitution.32 Given the fact that the States’ obligation to define jurisdiction in the abstract is subordinate to their constitutional procedures under Article 2 (2) ICCPR, they incontestably did not intend to open the door for the Human Rights Committee (HRC) to review their judicial organisation for constitutionality issues. Therefore, the Committee rightly refused to concern itself with the domestic legality of the act determining jurisdiction in Fals 25

GA Res. 217 A (III) of 10 December 1948.

26

Art. 10 Universal Declaration of Human Rights.

27

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR). 28 Mark. J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights (1987), 283 et seq. Interestingly, Annotations on the Text of the Draft International Covenants on Human Rights, GAOR, 10th Sess., Annexes, Agenda item 28 (Part II), 77, stresses that Art. 14 stipulates a jurisdiction previously established by law to avoid arbitrary action (emphasis added). 29 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd ed. 2005), Art. 14 para. 24. 30

Ibid.

31

Human Rights Committee (HRC), Kavanagh v. Ireland, Views of 4 April 2001, UN Doc. CCPR/C/71/D/819/1998, appendix para. 2. 32

Sarah Joseph/Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd ed. 2013), 454.

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Borda et al. v. Colombia.33 The SCSL and the STL have embraced this finding by ruling that ‘established by law’ referred to “proper international standards.”34 Despite this limited scope, Article 14 (1) ICCPR imposes certain restrictions on special tribunals. While they are not prohibited as such by the Covenant,35 the principle of equality outlaws the creation of special courts targeting the racial, religious, and other groups described by Article 2 (1) ICCPR.36 Although military affiliation does not pertain to these criteria, the HRC has taken a relatively restrictive approach towards military tribunals, deeming military procedures against civilians inadmissible if a State failed to provide compelling reasons.37 On the regional level, Article 6 European Convention on Human Rights (ECHR)38 reiterates the demand for a tribunal established by law. Like Article 14 (1) ICCPR, the provision targets executive interference,39 but does not completely forbid 33 HRC, Fals Borda et al. v. Colombia, 46/79, Views of 27 July 1982, UN Doc. CCPR/C/OP/1, para. 13.3. 34

International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber, The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion on Jurisdiction of 10 August 1995, para. 45, available at: http://www.icty.org/x/cases/tadic/tdec/en/100895.htm (accessed on 12 August 2014); Special Court for Sierra Leone (SCSL), Appeals Chamber, The Prosecutor v. Morris Kallon et al., SCSL-2004-15, Decision on Preliminary Motions Based on Lack of Jurisdiction (Violates the Constitution of Sierra Leone) of 13 March 2004, para. 55, available via: http://www.rscsl.org/CDF_Appeals_ Chamber_Decisions.html (accessed on 13 August 2014); Special Tribunal for Lebanon (STL), Trial Chamber, The Prosecutor v. Salim Jamil Ayyash et al., STL-11-01, Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal of 27 July 2012, para. 67, available at: http://www.stltsl.org/en/the-cases/stl-11-01/main/filings/orders-and-decisions/trial-chamber/f0352 (accessed on 21 August 2014). 35

HRC, General Comment No. 32, UN Doc. CCPR/C/GC/32 (2007), 6.

36

Nowak (note 29), Art. 14 para. 6.

37

HRC, Kurbanova v. Tajikistan, 1096/02, Views of 6 November 2003, UN Doc. CCPR/C/79/ D/1096/2002, para. 7.6; id., Madani v. Algeria, 1173/03, Views of 25 March 2012, UN Doc. CCPR/ C/104/D/1782/2008, para. 8.7; cf. also id., General Comment No. 32 (note 35), 6 et seq; Concurring opinions such as in id., Musaev v. Uzbekistan, 1914-6/09, Views of 21 March 2012, UN Doc. CCPR/ C/104/D/1914,1915&1916/2009, appendix paras. 3 et seq. and id., Akwanga v. Cameroon, 1813/08, Views of 22 March 2011, UN Doc. CCPR/C/101/D/1813/2008, appendix 2 para. 8 have suggested the Covenant should be interpreted as outlawing any jurisdiction of military courts over civilians. For an overview, see Claudia Martin, The Role of Military Courts in a Counter-Terrorism Framework: Trends in International Human Rights Jurisprudence and Practice, in: Ana Maria Salinas de Frías/Katja Samuel/Nigel White (eds.), Counter-Terrorism: International Law and Practice (2012), 689. 38 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 39

European Commission of Human Rights (ECommHR), Zand v. Austria, Report of 12 October 1978, Decisions and Reports 15, 70, 80.

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the delegation of decisions to the executive.40 In addition, the European Court of Human Rights (ECtHR) construes ‘established by law’ as established in accordance with the law,41 finding that the court’s failure to comply with national regulations simultaneously constitutes a breach of Article 6 ECHR.42 The Convention does not forbid special tribunals as long as their existence has a sufficient basis in law.43 It echoes the ICCPR in its restrictive stance towards military jurisdiction over civilians but regards the issue as pertaining to impartiality rather than equality.44 Unlike these two instruments, the American Convention on Human Rights45 and the Charter of Fundamental Rights of the European Union46 both require a court previously established by law, thereby expressly covering legislative action.

C. Guarantee in German Law

The right to a lawful judge is enshrined in Article 101 (1) Basic Law (BL),47 which stipulates: “Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his lawful judge.”48

40 Ibid.; ECommHR, Crociani et al. v. Italy, Decision of 18 December 1980, Decisions and Reports 22, 147, 219. 41

David J. Harris et al., Law of the European Convention on Human Rights (2nd ed. 2014), 458; cf. ECommHR, Zand v. Austria (note 39), 80. 42 ECommHR, Crociani et al. v. Italy (note 40), 220; European Court of Human Rights (ECtHR), Case of Buscarini and Others v. San Marino, Judgment of 18 February 1999, RJD 1999-I, 605. 43

ECommHR, X and Y v. Ireland, Decision of 10 October 1980, Decisions and Reports 22, 51, 72; ECtHR, Case of Fruni v. Slovakia, Judgment of 21 June 2011, para. 142, available via: http://hudoc. echr.coe.int (accessed on 20 August 2014). However, in Coppard v. Customs and Excise [2003] EWCA Civ 511, para. 34, the English Court of Appeal seems to suggest that Art. 6 ECHR actually forbids ad hoc tribunals. 44

Harris et al. (note 41), 450.

45

Art. 8 (1) American Convention on Human Rights, 22 November 1969, UNTS 1144, 123.

46

Art. 47 (2) Charter of Fundamental Rights of the European Union, 18 December 2000, OJ 2000/ C 364/01. 47 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. 48

Official translation, available via: http://www.gesetze-im-internet.de/englisch_gg/ (accessed on 12 April 2015).

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The Federal Constitutional Court (FCC) has depicted extraordinary courts as created for one or more concrete or individually determined cases in deviation from an established jurisdiction.49 Although it is often argued that the FCC appended an element of arbitrariness to its definition,50 the decision invoked to prove this assertion merely spells out: The creation of municipal jurisdiction neither violates the right to a lawful judge (Article 101 Paragraph 1 Clause 2 BL). The municipal courts have not been consigned to decide particular concrete or individually determined cases in arbitrary deviation from the lawful jurisdiction of the ordinary courts by the State legislator, but appointed to rule on a group of future minor civil cases between local residents defined in an abstract and general manner. As far as their jurisdiction spans, they are lawful judge in the terms of Article 101 Paragraph 1 Clause 2.51

Whilst one might argue that the wording of the decision is fairly close to the definition of ‘extraordinary court’ previously employed by the FCC, it has to be stressed that the Court expressly refers to the second clause of Article 101 (1) BL only, not to the first one. In fact, it carefully avoids any reference to the term ‘extraordinary court.’ The systematic analysis of Article 101 BL also fosters an interpretation that leaves arbitrariness aside. Article 101 BL has an antithetic structure, contrasting forbidden extraordinary courts with permitted courts for particular fields. The latter, however, are defined simply as deciding on a predetermined, abstract group of cases.52 This definition lacks any material elements such as usefulness, but focuses entirely on the formal jurisdiction of the court. As extraordinary courts and courts for particular fields are exact opposites, the same must be true for their definitions. Hence, the fact that a court decides not on a predetermined, abstract group of cases but on one or 49

Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 3, 213, 223; id., BVerfGE 8, 174, 182; id., BVerfGE 10, 200, 212. 50

Ulrich Battis/Christoph Gusy, Einführung in das Staatsrecht (5th ed. 2011), para. 428; Dennis Basak, Die Zuständigkeitsregeln internationaler Strafgerichte und Art. 101 GG (2005), 156. See also Christoph Sowada, Der gesetzliche Richter im Strafverfahren (2002), 139 et seq. 51

FCC, BVerfGE 14, 56, 72. Translation by the author. The German original reads: “Die Einrichtung der Gemeindegerichtsbarkeit verletzt auch nicht das Recht auf den gesetzlichen Richter (Art. 101 Abs. 1 Satz 2 GG). Die Gemeindegerichte sind vom Landesgesetzgeber nicht in willkürlicher Abweichung von der gesetzlichen Zuständigkeit der ordentlichen Gerichte mit der Erledigung einzelner konkreter oder individuell bestimmter Fälle betraut, sondern zur Entscheidung einer abstrakt und generell abgegrenzten Gruppe künftig anfallender zivilrechtlicher Bagatellstreitigkeiten zwischen Gemeindebürgern berufen. Soweit ihre Zuständigkeit reicht, sind sie der gesetzliche Richter im Sinne des Art. 101 Abs. 1 Satz 2 GG”. 52

Id., BVerfGE 10, 200, 212 et seq.

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more concrete cases designated ad hoc, is fully sufficient to characterise it as an extraordinary one. Consequently, arbitrariness should not be regarded as a prerequisite for an extraordinary court.53 Article 101 (1) cl. 2 BL serves a double purpose. First, it contains a subjective right of the individual to be tried by the judge pre-assigned to the case by general rules and duty rosters,54 which can be enforced through direct complaint to the FCC.55 Second, the clause orders the legislator to define the jurisdiction of the courts as unambiguously as possible,56 with fundamental decisions on jurisdiction requiring an act of parliament.57 Consequently, the guarantee includes the right to a court established by law, but goes far beyond this. Despite its constricted wording, the clause equally binds the executive, the legislative, and the judiciary.58 Given the fact that Article 101 (1) cl. 2 BL specifically talks about one lawful judge, it is not surprising that the mere existence of concurring jurisdiction has been looked upon as a violation of the guarantee.59 The FCC, however, has taken a less strict approach, finding that only after the decision to open the main proceedings must the jurisdiction of one single tribunal be definitely established.60 It additionally acknowledged the need for flexibility in order to determine the most adequate court for each

53

The aspect of arbitrariness is excluded in the definitions of Theodor Maunz, Art. 101, in: id./ Günter Dürig (eds.), Grundgesetz: Kommentar (72nd ed. 2014), para. 3, and Christoph Degenhardt, Gerichtsorganisation, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts, vol. V (3rd ed. 2007), 725, para. 48. Andreas Hänlein, Art. 101, in: Dieter C. Umbach/Thomas Clemens (eds.), Grundgesetz: Mitarbeiterkommentar und Handbuch, vol. II (2002), 1153, paras. 13 et seq., and Gerd Morgenthaler, Art. 101, in: Volker Epping/Christian Hillgruber (eds.), Beck’scher Online-Kommentar GG (23rd ed. 2014), para. 2, omit arbitrariness but require a danger or suspicion that the members of the bench have been selected with a certain tendency. 54

FCC, BVerfGE 82, 159, 194.

55

Art. 93 (1) cl. 4a BL.

56

FCC, Decision of 25 October 1966, reprinted in: Neue Juristische Wochenschrift (NJW) 20 (1967), 99, 100. 57

Id., BVerfGE 19, 52, 60.

58

Id., BVerfGE 3, 359, 364.

59

Bodo Pieroth, Art 101, in: Hans D. Jarass/Bodo Pieroth (eds.), Grundgesetz für die Bundesrepublik Deutschland: Kommentar (13th ed. 2014), 1027, para. 9; Philip Kunig, Art. 101, in: Ingo von Münch/Philip Kunig (eds.), Grundgesetz: Kommentar, vol. 2 (6th ed. 2012), 856, para. 26. 60

FCC, Decision of 30 March 1965, reprinted in: NJW 18 (1965), 1223, 1224.

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criminal case and declared flexible rules of competence admissible as long as they foreclosed impertinent influence by the public prosecution or any other authority.61 Unlike other provisions such as Article 2 (2) BL, Article 101 (1) BL lacks an explicit reservation to curtail the right by means of statute. Still, the constitutional guarantee should be interpreted in the context of its environment and consequently be subject to restrictions imposed by contradicting constitutional provisions.62 Hence, an interference with the right to a lawful judge might still be justified if it gives effect to other constitutional norms and values. It is nonetheless true that the guarantee to a ‘lawful’ judge leaves wide definitional power to the legislative. While it describes the scope of protection by demanding that judicial competence be determined by law, it also allows the legislator to conduct that designation, leaving room for lawful interference. Some have concluded that this wide definitional power made justification through colliding constitutional norms practically irrelevant.63 This opinion seems to rest on the assumption that parliament could solve all arising conflicts through a statute. While this may be true in a purely domestic setting, passing a national act might not even have an effect on the issue if international courts are involved. Indeed, the present article will show that international tribunals have the potential to violate the principle of lawful judge. In such an international setting, where national legislation is no effective remedy, conflicting constitutional norms and values provide the only accessible source of justifying interference with Article 101 (1) BL. Article 101 (1) cl. 2 BL is not an impediment to international judicature as such. Affirming that the lawful judge need not necessarily be a German one, the FCC held that Article 101 (1) cl. 2 BL included the European Court of Justice (ECJ) insofar as it had been entrusted with the administration of justice by German law.64

61

Id., BVerfGE 9, 223, 226 et seq.

62

Basak (note 50), 128; Sowada (note 50), 278.

63

Helmuth Schulze-Fielitz, Art. 101, in: Horst Dreier (ed.), Grundgesetz: Kommentar, vol. III (2nd ed. 2008), 649, para. 64; Pieroth (note 59), para. 16. 64

FCC, BVerfGE 73, 339, 366 et seq.

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III. Relevance of the Right in International Criminal Procedures A first and superficial glance at the outlined guarantees is likely to prompt questions as to their relevance to internationalised criminal procedures. The right to a lawful judge is enshrined in international covenants and national constitutions. But international criminal courts are neither signatories of these instruments nor are they bound by State legislation. So why should these guarantees be material to an international tribunal? As a part of international law, international criminal law draws from the same sources.65 Thus, the traditional outline of sources in Article 38 Statute of the International Court of Justice66 is also relevant to international criminal tribunals. Accordingly, the body of international criminal law is made up of conventions, custom, and general principles while jurisprudence and doctrine serve as means to determine the law.67 Consequently, Article 21 Rome Statute of the International Criminal Court,68 which is regarded as a major codification of certain parts of international criminal law,69 encompasses the Court’s own statute and rules, applicable treaties, the principles and rules of international law as well as general principles of law in its definition of applicable law.70 Due to the singularity of their jurisdiction, international tribunals do not set forth the right to a lawful judge in their statutes, although they contain certain procedural guarantees.71 International human rights instruments do not apply directly to international tribunals due to their intergovernmental nature. They may, however, express

65

Gerhard Werle, Principles of International Criminal Law (2nd ed. 2009), 49; Alexander Zahar/ Göran Sluiter, International Criminal Law (2007), 80. 66 Statute of the International Court of Justice (annexed to the Charter of the United Nations), 26 June 1945, UNCIO 15, 355. 67

Olivier de Frouville, Droit International Pénal: Sources, Incriminations, Responsabilité (2012), 3.

68

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3 (Rome Statute).

69

Werle (note 65), 54.

70

The ICTY has embraced a similar definition in a decision of its Trial Chamber, The Prosecutor v. Zoran Kupreškić et al., IT-95-16-T, Judgment of 14 January 2000, para. 591, available at: http://www. icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf (accessed on 22 August 2014). 71

See e.g. Arts. 66 et seq. Rome Statute and Arts. 15 et seq. Statute of the Special Tribunal for Lebanon, Annex to SC Res. 1737 of 30 May 2007 (STL Statute).

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a custom or general principle of international criminal law.72 It is in this way that rules like Article 14 (1) ICCPR may have an impact on the decisions of international criminal tribunals. In addition to this, international criminal proceedings might also be tangentially affected by the resolutions of national institutions directly bound by the said instruments and their national legal order. International criminal tribunals depend on the cooperation of States to trace and surrender suspects, to provide legal assistance, and to carry out their rulings.73 If cooperation with an international tribunal entailed a violation of the domestically guaranteed right to a lawful judge, one would expect national authorities to be debarred from cooperating,74 causing international procedures to be hindered or stalled. Thus, a domestically applicable right to a lawful judge could also affect international tribunals. Some doubt remains as to a possible third way these guarantees could affect international criminal procedures. Despite the continuous dissension on the justiciability of Security Council resolutions,75 the notion of compétence de la compétence, the 72

Werle (note 65), 52.

73

Zahar/Sluiter (note 65), 457. See also Göran Sluiter, Responding to Cooperation Problems at the STL, in: Amal Alamuddin/Nidal Nabil Jurdi/David Tolbert (eds.), The Special Tribunal for Lebanon. Law and Practice (2014), 134. 74 This generic assumption may be altered by a number of factors such as the country’s approach to international law and the means by which the tribunal has been established. The situation in Germany will be assessed below. 75

Security Council resolutions have been reviewed by ICTY, Appeals Chamber, The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, paras. 14 et seq., available at: http://www.icty.org/x/cases/tadic/acdec/en/51002.htm (accessed on 25 August 2014), and SCSL, Appeals Chamber, Prosecutor v. Kallon et al. (note 34), para. 37, whereas, e.g., ICTY, Trial Chamber, Prosecutor v. Tadić (note 34), para. 23; International Criminal Tribunal for Rwanda (ICTR), Trial Chamber, The Prosecutor v. Edouard Karemera, ICTR-98-44, Decision on the Defence Motion, Pursuant to Rule 72 of Rules of Procedure and Evidence, Pertaining to, inter alia, Lack of Jurisdiction and Defects in the Form of the Indictment of 25 April 2001, para. 25, available at: http://www.unictr.org/Portals/0/Case%5CEnglish%5CKaremera%5Ctrail%5C250401.pdf; STL, Appeals Chamber, The Prosecutor v. Salim Jamil Ayyash et al., STL-11-01, Decision on the Defence Appeals against the Trial Chamber’s ‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’ of 24 October 2012, para. 35 (with Justice Baragwanath dissenting), available at: http://www.stl-tsl.org/en/the-cases/stl-11-01/main/filings/orders-and-decisions/appeals-chamber/ f0020ar901 (accessed on 26 August 2014), considered themselves incompetent to do so. ICTR, Trial Chamber, The Prosecutor v. Joseph Kanyabashi, ICTR-96-15-T, Decision on the Defence Motion on Jurisdiction of 18 June 1997, paras. 17 et seq., available at: http://www.unictr.org/Portals/0/Case%5C English%5CKanyabashi%5Cdecisions%5C180697.pdf (accessed on 26 August 2014), took an intermediate approach by both assessing the facts and stressing the discretion of the Security Council.

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inherent power of a court to decide on its own jurisdiction,76 has remained a rather undisputed principle of international law.77 As jurisdiction is the legitimate power to adjudicate,78 the competence involves the power to review the instruments establishing jurisdiction.79 In principle, international courts consequently have the power to assess the validity of their founding agreement. In Prosecutor v. Kallon et al., the SCSL did so by evaluating whether it had been established in accordance with the Sierra Leonean Constitution80 and the STL has stated it would have done likewise had it been established by an international treaty.81 This seems to imply that domestically applicable guarantees can have some importance for treaty-based international criminal tribunals. However, the review standard applied by the SCSL and the STL exceeds the limits set by international criminal law. Even though certain rules of national criminal law may apply,82 the establishment of the tribunal is governed by a treaty under international law. The tribunal therefore retains its international status; it does not form part of the judiciary of the respective country.83 As a consequence, it is international law that sets the standard for the review of the validity of the founding instrument. Thus the tribunal is prevented from turning directly to national laws including constitutions. It is only within the framework of international law that national law can obtain relevance. However, Article 27 Vienna Convention on the Law of Treaties

76

Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication and Its Role in an Era of Multiplication of Courts and Tribunals, in: Mahnoush H. Arsanjani et al. (eds.), Looking into the Future: Essays on International Law in Honor of W. Michael Reisman (2011), 1027, 1028 et seq. 77

International Court of Justice (ICJ), Nottebohm (Liechtenstein v. Guatemala), Judgment of 18 November 1953, ICJ Reports 1953, 111, 119; Malgosia Fitzmaurice/Olufemi Elias, Contemporary Issues in the Law of Treaties (2005), 285. 78

ICTY, Appeals Chamber, Prosecutor v. Tadić (note 75), paras. 11 et seq.; Chittharanjan Félix Amerasinghe, Jurisdiction of International Tribunals (2003), 53. 79

Fitzmaurice/Elias (note 77), 285.

80

SCSL, Appeals Chamber, Prosecutor v. Kallon et al. (note 34), paras. 36 et seq., 55.

81

STL, Trial Chamber, Prosecutor v. Ayyash et al. (note 34), para. 50.

82

See Art. 2 STL Statute.

83

SCSL, Appeals Chamber, Prosecutor v. Kallon et al. (note 34), paras. 49 et seq. Similarly, Art. 4 (1) STL Statute, which was to enter into force as part of the envisaged treaty, implies that the Tribunal and the national courts of Lebanon belong to separate legal spheres.

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(VCLT),84 codifying customary law,85 forecloses any objections to the validity of an international agreement based on violations of national law save the manifest violations of fundamental domestic rules on the competence to conclude a treaty provided for in Article 46 VCLT.86 Apart from the situations described by Article 46, the unconstitutionality of a treaty has no impact on its validity under international law. Hence, there is no reason why an international tribunal should concern itself with the constitutionality of its founding instrument, with the exception of those cases covered by Article 46 VCLT.87

IV. Possible Obstacle to International Criminal Proceedings Assessing the effective consequences of the right to a lawful judge in international criminal law consequently requires a twofold inquiry from the perspective of both the international court and national agencies.

A. Before International Criminal Tribunals

International criminal tribunals have faced objections concerning two aspects of the principle of lawful judge.

84

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT).

85

Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), Art. 27, para. 11. 86 Arts. 27, 46 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, Doc. A/CONF.129/15, which has not yet come into force, have the same content. 87 SCSL, Appeals Chamber, The Prosecutor v. Allieu Kondewa, SCSL-2004-14, Decision on Preliminary Motion on Lack of Jurisdiction: Establishment of Special Court Violates Constitution of Sierra Leone of 25 May 2004, Separate Opinion of Justice Robertson, paras. 4 et seq., available via: http:// www.rscsl.org/CDF_Appeals_Chamber_Decisions.html (accessed on 24 August 2014); id., Trial Chamber, The Prosecutor v. Morris Kallon, SCSL-2003-07, Prosecution Response to the Second Defence Preliminary Motion (Constitution of Sierra Leone), paras. 7, 9, 15 et seq., available via: http:// www.rscsl.org/RUF_Trial_Chamber_Decisions.html (accessed on 24 August 2014).

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1. Right to a Court Established by Law The first emanates directly from the guarantee to a court established by law. Having assessed the abovementioned international and regional covenants, the Appeals Chamber of the International Tribunal for the Former Yugoslavia (ICTY) in Tadić found that the right to a court established by law constituted a general principle of international law, albeit with limited applicability to international courts: Deeming the HRC requirement of an act of parliament inappropriate for international tribunals, the Chamber held that they must still be established in accordance with the rule of law and guarantee a fair trial in full conformity with international human rights standards.88 Subsequent rulings by the International Tribunal for Rwanda (ICTR), the SCSL, and the STL confirmed this stance.89 These judgments largely transformed the adjective guarantee to a court established by law into a more substantive fair trial right different from the guarantee to a lawful judge. Nevertheless, certain courts incorporated formal aspects into their analysis: The Trial Chamber in Tadić held that ‘established by law’ referred to the existence and validity of the founding Security Council resolution90 whilst the STL, despite its unwillingness to review the respective resolution, still required a formal act of creation.91 However, the right to a court established by law, as interpreted by international criminal courts, is far from being a guarantee to a lawful judge that might affect international procedures. Most courts have conceived it as a mere fair trial guarantee, addressing the relevant issues of lawful establishment under the heading of jurisdiction.92 Even where courts understood the term in a broader sense, they refrained from reviewing the legality of their founding documents, thus also failing to meet the lawful judge standard.

88

ICTY, Trial Chamber, Prosecutor v. Tadić (note 34), paras. 42 et seq.

89

ICTR, Trial Chamber, Prosecutor v. Kanyabashi (note 75), para. 43; SCSL, Appeals Chamber, Prosecutor v. Kallon et al. (note 34), para. 55; STL, Trial Chamber, Prosecutor v. Ayyash et al. (note 34), para. 67. 90

ICTY, Trial Chamber, Prosecutor v. Tadić (note 34), para. 33.

91

STL, Trial Chamber, Prosecutor v. Ayyash et al. (note 34), paras. 70 et seq.

92

Cf. e.g. ICTY, Appeals Chamber, Prosecutor v. Tadić (note 75), paras. 10 et seq.

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This result is certainly in accordance with contemporary international criminal law. Indeed, Article 14 (1) ICCPR, the most universal provision that courts relied on to establish the principle of lawful judge, merely demands a formal legislative act without explicitly requiring it to be constitutional or legal.93 This is particularly compelling against the historical background of the right to a lawful judge, which, contrary to the findings of the international courts, was not meant to strengthen the rule of law principle in general. Instead, it was designed to foreclose executive interference in the administration of justice, thereby specifically promoting the separation of powers.94 This is a strictly formal concept, which does not contain material notions such as constitutionality or legality. Hence, there is no international right to have a court review the legality or other material aspects of its own setup. The international standard of a court established by law is met as soon as there is a formal act of establishment. As regards courts established as a subsidiary organ through a Security Council resolution, additional arguments can be drawn from the structure of the United Nations (UN). It is the Security Council, which, in its resolution, determines the mandate of its subsidiary organs. Considering its will to effectively solve an international crisis through the establishment of an international court, it is highly unlikely that the Security Council wished to bestow upon the court the authority to annul its resolution and cease all activity. In addition, it would contravene the wellestablished principles of government and court organisation if an inferior institution could review and bindingly reject the actions of superior organs.

2. Jus de non Evocando As a second objection, the accused invoked a purported jus de non evocando, which is, despite some apparent conceptual difficulties,95 the term used by international courts for the notion of lawful judge.96 So far, however, no international court has acknowledged such a right in international criminal law; the ICTY, in fact, expressly 93

See supra, II.B.

94

See supra, II.A.

95

Curiously, the STL in Trial Chamber, Prosecutor v. Ayyash et al. (note 34), paras. 84 et seq., addressed the right to a natural judge despite having denied a violation of the jus de non evocando at paras. 76 et seq. 96

Cf. ICTY, Appeals Chamber, Prosecutor v. Tadić (note 75), para. 61.

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refused to do so.97 On top of this, the courts invariably held that the establishment of an international tribunal did not violate the right to a lawful judge. Pointing to its purpose as a safeguard against politically motivated removals to extraordinary courts without fair trial guarantees, the Appeals Chamber in Tadić found that an equally fair trial at an international court could not infringe the right.98 In addition, the Appeals Chamber concurred with the Trial Chamber’s view that possible domestic rights were subject to abrogation by measures under Chapter VII Charter of the United Nations (UN Charter),99 which took precedence under Article 2 (7) UN Charter following an initial transfer of sovereignty by the Member States on accession.100 As there is no doubt about these findings from both a factual and an international legal perspective, the principle of lawful judge must be considered extraneous before international tribunals.

B. Obstacle to State Cooperation

A national law perspective, however, may differ significantly from this international point of view. The abovementioned argument put forward in Tadić, for example, relies on the international law principle that gives international law precedence over national law. Countries such as the Netherlands, embracing monism and the supremacy of international law,101 share this view. Others have adopted a different national approach. In the German dualist system, the constitution retains supremacy over public international law irrespective of its source.102 Consequently, any action violating Article 101 (1) BL is outlawed as unconstitutional, be it in accordance with

97

Ibid.; id., Trial Chamber, Prosecutor v. Tadić (note 34), para. 43.

98

Id., Appeals Chamber, Prosecutor v. Tadić (note 75), para. 62. ICTR, Trial Chamber, Prosecutor v. Kanyabashi (note 75), para. 31, and STL, Trial Chamber, Prosecutor v. Ayyash et al. (note 34), para. 83 concurred. 99

Charter of the United Nations, 26 June 1945, UNCIO 15, 355 (UN Charter).

100

ICTY, Trial Chamber, Prosecutor v. Tadić (note 34), para. 37; Id., Appeals Chamber, Prosecutor v. Tadić (note 75), para. 61. 101

See Arts. 91 and 94 Constitution of the Kingdom of the Netherlands.

102

FCC, BVerfGE 111, 307, 318.

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international law obligations or not.103 It is thus crucial for the German authorities that cooperation with international tribunals is performed in full accordance with the right to a lawful judge. Three possible areas of conflict with Article 101 (1) BL can be identified: (1) Cooperation can violate the ban on extraordinary courts, (2) it may infringe the guarantee to a court established by law, and (3) it may result in concurring jurisdiction of both international and national tribunals which contradicts the principle of lawful judge. All of these aspects require a two-tiered analysis. First, it must be established whether there is a violation of the guarantee. If such a violation exists, the possibility of justification needs to be assessed as a second step.

1. Ban on Extraordinary Courts Article 101 (1) cl. 1 BL as interpreted by the FCC bans courts designed to rule on one or more concrete cases assigned ad hoc.104

a) International Criminal Tribunals as Extraordinary Courts Considering this standard, the STL represents the archetype of an extraordinary court: The Tribunal was set up in the aftermath of the 14 February 2005 attack killing former Lebanese Prime Minister Rafiq Hariri and specifically designed to try this individual case.105 According to Article 1 Statute of the Special Tribunal for Lebanon106 it has jurisdiction over this single incident but also over other terrorist attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005 if they are connected and of similar nature and gravity. Despite its semi-abstract wording, this 103

Basak (note 50), 87; Christina Globke, Die Auslieferung an den Internationalen Strafgerichtshof (2009), 194 et seq. 104

See supra, II.C.

105

John R. W. D. Jones/Miša Zgonec-Rožej, Rights of Suspects and Accused, in: Amal Alamuddin/ Nidal Nabil Jurdi/David Tolbert (eds.), The Special Tribunal for Lebanon: Law and Practice (2014), 177, 179. SC Res. 1757 of 30 May 2007, which established the tribunal, explicitly refers to the incident five times. It is only once that “other attacks in Lebanon” are “condemned”. 106

STL Statute, Annex to SC Res. 1737 of 30 May 2007.

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narrow definition of jurisdiction was intended to cover a limited number of concrete cases. In fact, the UN Secretary-General, explaining his draft statute of the STL, referred to an annexed exhaustive list of 14 incidents and elaborated that the clause on connected cases was aimed at including “these other attacks” in the jurisdiction of the tribunal.107 In light of this intention the jurisdiction of the STL lacks the necessary level of abstraction. As it has been assigned concrete cases only, it is an extraordinary court. The cases of the ICTY, the ICTR, and the SCSL are less obvious. The jurisdiction of the ICTR is limited to international crimes committed in 1994,108 that is, the year of the Rwandan genocide. The statutes of the other two tribunals contain a seemingly more open-ended definition: They are competent to hear cases of serious violations of international humanitarian law (in case of the SCSL also of Sierra Leonean law) committed within the defined territorial boundaries and after a certain date.109 Still, the Security Council resolutions in question leave no doubt that all of these courts were not intended as permanent courts in the field of international crimes but set up to deal with concrete contemporary hostilities.110 Despite the fact that these matters may well embody a multitude of cases, the latter would not form a predetermined, abstract group. First, predetermination implies a definition prior to the occurrence of the situation in question, a requirement that neither one of the statutes meets. Second, abstraction demands a description in general terms, calling for a conceptual rather than a factual approach. However, to describe, for example, a civil war matter, one would ineluctably have to specify the time, place, and persons involved. General terms utilised for that purpose would not go beyond a mere summation of concrete individual circumstances and would therefore lack any abstracting effect. As the jurisdiction of the ICTY, the ICTR, and the SCSL is accordingly determined in a concrete, not in an abstract way, they must qualify as extraordinary courts. 107 UN Secretary-General, Report on the Establishment of a Special Tribunal for Lebanon, 15 November 2006, UN Doc. S/2006/893 (2006), paras. 11 et seq., annex II. 108 Arts. 1 and 7 Statute of the International Criminal Tribunal for Rwanda, Annex to SC Res. 955 of 8 November 1994 (ICTR Statute). 109 Arts. 1 and 8 Statute of the International Criminal Tribunal for the Former Yugoslavia, Annex to SC Res. 827 of 25 May 1993 (ICTY Statute); Art. 1 (1) Agreement on the Establishment of a Special Court for Sierra Leone, 16 January 2002, UN-Sierra Leone, UNTS 2178, 138 (SCSL Agreement); Art. 1 (1) Statute for the Special Court of Sierra Leone, Annex to SCSL Agreement of 16 January 2002 (SCSL Statute). 110

Cf. SC Res. 808 of 22 February 1993; SC Res. 1315 of 14 August 2000.

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The International Criminal Court (ICC), in contrast, seems far from being an extraordinary court. Its jurisdiction extends to the group of serious crimes circumscribed in the abstract by Article 5 (1) Rome Statute. It covers, according to Article 12 (1), (2) Rome Statute, the territory and nationals of the States parties. All of these definitions are pre-formulated in general terms. In addition, Article 1 Rome Statute describes the ICC as a court of permanent nature, which differs significantly from the ad hoc setup symptomatic for extraordinary courts. Insofar as the above articles can be applied, the ICC must therefore be considered a regular court for the field of serious crimes under international criminal law. Yet, the indiscriminate territorial or personal jurisdiction outlined in Article 12 (1), (2) Rome Statute covers only one aspect of judicial competence. Articles 12 (2), (3) and 13 (b) Rome Statute provide for the possibility to overcome a lack of jurisdiction over crimes neither committed within the territory of a State party nor by one of its nationals. They allow for jurisdiction over individual cases to be established on an ad hoc basis through either Security Council resolution or declaration of a non-party State. These provisions specifically call for a situation, a concrete set of circumstances, to be referred for consideration. As has already been established for the ICTY, the ICTR, and the SCSL, the term ‘situation’ lacks the necessary levels of abstraction and predetermination. Instead, a situation is a summation of concrete individual circumstances selected subsequently. Tribunals with only one such situation assigned have rightly been qualified as extraordinary courts. The case of the ICC, however, is different. Not only is it a permanent institution that can rule on more than one situation, its jurisdiction in the territory and with regard to the nationals of the States parties also meets the standard of abstraction needed for a permitted court for a particular field of law. Must the ICC therefore be regarded as a court for a particular field in its entirety or do the different ways of establishing jurisdiction require a differentiation? The wording of Article 101 (1) cl. 1 BL – “Extraordinary courts shall not be allowed” – lays its focus on the tribunal as such. One might therefore think that one tribunal cannot be an extraordinary court and a court for a particular field at the same time. Still, this interpretation would fail to fully acknowledge the content of the ban on extraordinary courts. The wording of the clause does not restrict itself to outlawing the establishment of extraordinary courts; it covers anything related to them.

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Taking this total prohibition seriously requires not only the banning of the establishment but also the functioning of extraordinary courts. Whenever a tribunal, be it established as an extraordinary one or not, acts as an extraordinary court by ruling ad hoc on a concrete or individually determined case in deviation from an established jurisdiction, it violates Article 101 (1) cl. 1 BL. Even if that were not the case, the nature of the ban on extraordinary courts would require a differentiation between the three ways in which jurisdiction can be established. The prohibition is a component of the right to a lawful judge,111 which, in turn, codifies an aspect of equality before the courts.112 Equality rights entitle the holder to equal treatment by the same authority, which means that one authority, deciding its own cases, has to take identical measures in identical cases. It does not mean, however, that one authority must treat its cases in the same way that another authority has dealt with its own.113 In order to rule on situations from non-party States, the ICC either needs a Security Council resolution or a declaration of acceptance from the respective State. The drafters of the Rome Statute assumed that a referral by the Security Council under such circumstances would make the ICC resemble the ad hoc tribunals and believed it should be treated as such in that regard.114 It is true that the Security Council or third State merely make use of the ICC as an institution in these cases; they empower it to rule on their behalf.115 In fact, the Rome Statute even stipulates that the UN should cover the expenses incurred due to the referral of situations by the Security Council.116 The respective ICC decisions must consequently be attributed to the transferring institution. In terms of equality rights, the ICC therefore exercises a different authority depending on whether it decides on a case from a State party or following a Security Council resolution or 111

Maunz (note 53), para. 4.

112

Ibid., paras. 4, 14; Emmanuel Jeuland, Le droit au juge naturel et l’organisation judiciaire, Revue Française d’Administration Publique 125 (2008), 33, 35. 113

FCC, BVerfGE 79, 127 (158). In the present case, the ICC, the UN Security Council, and national States additionally act under diverse legal regimes which makes one common standard of equality unattainable. 114 Morten Bergsmo/Jelena Pejić, Art. 16, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd ed. 2008), 595, para. 24. 115

Cf. Globke (note 103), 289, who argues that the Security Council needs to transfer powers which go beyond the Statute to cause this result. As the Security Council is only bound by the UN Charter, not by the Statute, this criterion seems questionable. 116

Art. 115 (b) Rome Statute.

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declaration of a non-party State. Its status as a court for a particular field for its States parties is consequently extraneous when it comes to qualifying it as an extraordinary court from the perspective of a non-party State. Summing up, the STL, the ICTY, the ICTR, and the SCSL are extraordinary courts. The ICC, on the other hand, is an extraordinary court only insofar as its jurisdiction is established through Security Council resolution or non-party State declaration.

b) Applicability of the Ban However, this finding is insufficient to establish that cooperating with such an extraordinary tribunal would violate Article 101 (1) cl. 1 BL. As a German constitutional provision, it targets German extraordinary courts117 and does not apply to foreign or international ones. Ruling on an extradition case, the FCC opined that foreign courts should only be assessed against the criterion of indispensable principles of public policy as well as the minimum standards of public international law declared applicable by Article 25 BL.118 It has accordingly held that Article 101 (1) cl. 1 BL did not apply to extradition procedures and could therefore not forestall the transfer of a suspect to a foreign court believed to be an extraordinary one by the applicant.119 Hence, cooperating with an international extraordinary court does not infringe the German Constitution. There is, however, one notable exception. Under Article 24 (1) BL, governmental powers can be transferred to intergovernmental institutions by an act of parliament. The legislator’s decision to vest an international tribunal with judicial powers to be exercised in cooperation with the German judiciary affects the domestic court organisation and consequently falls within the ambit of Article 101 (1) BL. Consequently, the FCC affirmed that the ECJ had to meet the standards of Article 101 (1) cl. 2 BL.120 However, the relationship between domestic courts and the ICC is of a completely different nature according to the FCC, because the complementary jurisdic117

Cf. Art. 92 BL, which defines the scope of the chapter on the judiciary.

118

FCC, Decision of 26 January 1982, reprinted in: NJW 35 (1982), 1214.

119

Id., Decision of 1 December 2003, reprinted in: Beck-Rechtsprechung (BeckRS) 2004, 20662, paras. 31 et seq. 120

Id., BVerfGE 73, 339, 366 et seq.

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tion of the ICC is designed to cover the cases the German judiciary has failed to try.121 Hence, the relationship is one of subsidiarity rather than cooperation. Consequently, the ICC does not need to fulfil the criteria of Article 101 (1) BL.122 Even if one held a different view because of the transfer of powers taken place as well as the cooperation implied by the complementarity regime and Articles 86 et seq. Rome Statute, the ban would have no impeding effect on cooperation with the ICC. To the extent that the jurisdiction of the ICC rests on a transfer of German State sovereignty, it has been found to be a permitted court for a particular area of law. Insofar as its jurisdiction is established by Security Council resolution or declaration of a foreign State, it is an extraordinary court, just as the ad hoc tribunals. But no German sovereignty has been delegated in that regard, not even to the Security Council, which exercises UN-specific powers that no State possesses individually. Consequently, Article 101 (1) cl. 1 BL does not apply.123 Thus, the constitutional ban on extraordinary courts does not prohibit German authorities from cooperating with international tribunals.124

2. Need for a Valid Legal Basis The most apparent postulation of the right to a lawful judge is the call for a valid legal basis of all judicial power. In an international law setting, this comes down to the question of what domestic legal action is required to make an international judge a lawful one by German constitutional standards. Two cases need to be distinguished here: On the one hand, a court can be established without a national act of consent. As Article 101 (1) cl. 2 BL aims at German courts, it does not apply to such an international tribunal because the latter lacks a German act of consent that would integrate it into the domestic legal system and 121

Id., Decision of 1 March 2011, reprinted in: NJW 64 (2011), 2569.

122

Ibid.

123

Albrecht Randelzhofer, Art. 24 (1), in: Theodor Maunz/Günter Dürig (eds.) (note 53), paras. 135,

138. 124

Rudolf Wassermann, Konflikt zwischen Politik und Recht – Zur Affäre Öcalan, NJW 52 (1999), 760, 762, contests this finding.

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render its decisions domestically applicable.125 Such has been the case with the STL, which was established by the Security Council acting under Chapter VII UN Charter.126 While the German legislator transformed the public international law statute of the ICTY into German law,127 correctly implying that the act of accession to the United Nations did not provide for direct applicability of Security Council resolutions under the German legal order, no such act has been passed with regard to the STL. Hence, the STL lacks a national act of consent and immediate jurisdiction in Germany, which renders Article 101 (1) cl. 2 BL inapplicable. If, on the other hand, a tribunal receives German approval through an act of parliament, the latter provides, at the same time, the requisite domestic legal foundation. The ICC possesses such a legal basis in the shape of the IStGH-Gesetz,128 the national measure complementing the signature of the Rome Statue. The act integrated the Court into the German legal system and granted the Rome Statute and, as a consequence, the ICC’s decisions domestic applicability.129 Article 101 (1) cl. 2 BL was thus triggered. At the same time, this parliamentary consent constituted the legal foundation demanded by the provision. Consequently, there is no conflict between international tribunals and the right to a lawful judge in this regard.

3. Exercise of Concurring Jurisdiction Another potential conflict arises where international criminal courts exercise concurring jurisdiction,130 that is, where an international and a national tribunal are competent to hear one case at the same time. If Germany, on the order of an interna-

125

FCC, BVerfGE 73, 339, 366 et seq.

126

SC Res. 1737 of 30 May 2007.

127

Yugoslavia Tribunal Act (Jugoslawien-Strafgerichtshof-Gesetz), 10 April 1995, BGBl. I, 485, as amended on 21 June 2002, BGBl. I, 2144. Cf. Bundestagsdrucksache (BT-Drs.) 13/57, 29 November 1994, 1. 128

International Criminal Court Act (Internationaler Strafgerichtshof-Gesetz), 21 June 2002, BGBl. I, 2144, as amended on 21 December 2007, BGBl. I, 3198. 129 130

Martin Nettesheim, Art. 57, in: Theodor Maunz/Günter Dürig (eds.) (note 53), para. 180.

Cf. Herwig Roggemann, Strafverfolgung von Balkankriegsverbrechen aufgrund des Weltrechtsprinzips – ein Ausweg?, NJW 47 (1994), 1436, 1438.

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tional criminal tribunal, decided to defer national proceedings and surrender the suspect to that court, it might violate Article 101 (1) cl. 2 BL.

a) Nature of Jurisdiction Exercised by International Criminal Tribunals The SCSL enjoys such concurring jurisdiction, but only with regard to the Sierra Leonean courts.131 Just like the STL, which exercises concurring jurisdiction only in relation to the Lebanese judiciary,132 it is therefore of no interest to the present study. The ICTY and the ICTR, however, exercise worldwide concurring jurisdiction, they enjoy primacy, and are entitled to request a deferral of cases prosecuted domestically.133 In fact, the ICTY had its very first case referred from a German court in evident violation of the right to a lawful judge: Duško Tadić had been indicted by the Federal Prosecution Service, the Bavarian Highest Regional Court had decided to open the main proceedings and scheduled the trial to commence when the ICTY requested deferral of the case.134 By deciding to open the main proceedings, however, the German judges had irreversibly become Tadić’s lawful judges.135 The subsequent removal of his case to the ICTY consequently deprived Tadić of his right to a lawful judge. It is less clear whether such a violation could also occur under the jurisdiction regime of the ICC, which has been described as complementary rather than concurring.136 According to Article 17 (1)(a) and (b) Rome Statute, a national investigation or prosecution generally prevents the ICC from ruling itself. It is only if a State is unwilling or unable to genuinely carry out the investigation or prosecution that the case becomes admissible before the ICC. But while unwillingness and inability trigger the competence of the ICC, they do not automatically repeal the jurisdiction of the national court – Article 20 (2) Rome Statute merely forbids a national trial following 131

Art. 8 SCSL Statute.

132

Art. 4 STL Statute.

133

Art. 9 ICTY Statute; Art. 8 ICTR Statute. Cf. also Rules 9 et seq. ICTY Rules of Procedure and Evidence, 11 February 1994, UN Doc. IT/32/Rev. 43. 134 Rolf Hannich, Justice in the Name of All, Zeitschrift für Internationale Strafrechtsdogmatik 2 (2007), 507, 511. 135

Cf. FCC, Decision of 30 March 1965 (note 60), 1224.

136

Cf. the Preamble of the Rome Statute.

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a conviction or an acquittal by the ICC. Hence, the Rome Statute does not categorically preclude the exercise of concurring jurisdiction,137 which calls for an investigation into the likelihood of such a situation. The only criterion of unwillingness that Germany could realistically fulfil is that of unjustified delays in Article 17 (2)(b) Rome Statute. Indeed, Germany has been held accountable for unjustified delays in criminal proceedings more than once by the European Court of Human Rights (ECtHR).138 Still, the presence of delays and the absence of justification are only two out of three cumulative conditions for unwillingness stipulated by Article 17 (2)(b) Rome Statute. Unwillingness can only be assumed if the delays are also inconsistent with the intention to bring the person concerned to justice,139 that is, if it can be established that the country has additionally acted in bad faith.140 In contrast, unjustified delays in German courts generally stem from staff shortages, inadequate funding, or a lack of motivation and skills among the court staff.141 Hence, a deferral of German proceedings upon order of the ICC, that is, a situation of real concurrence, is purely hypothetical.142

137

Basak (note 50), 72; Globke (note 103), 345 et seq.

138

Cf. e.g. ECtHR, Metzger v. Allemagne, Judgment of 31 May 2001, available via: http://hudoc. echr.coe.int (accessed on 3 September 2014); id., Case of Uhl v. Germany, Judgment of 10 February 2005, available via: http://hudoc.echr.coe.int (accessed on 3 September 2014); ECtHR, Ommer v. Germany, Judgment of 30 November 2008, available via: http://hudoc.echr.coe.int (accessed on 4 September 2014). 139

Cf. ICC, Pre-Trial Chamber, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, Decision on the Admissibility of the Case against Abdullah Al-Senussi of 13 October 2013, para. 223, available at: http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf (accessed on 11 December 2014). 140 Nidal Nabil Jurdi, The International Criminal Court and National Courts: A Contentious Relationship (2011), 45; Jo Stigen, The Relationship Between the International Criminal Court and National Jurisdictions (2008), 290. There is, however, a risk that the ICC creates a presumption of unwillingness, Eveline Owiye Asaala, The ICC Factor on Transitional Justice in Kenya, in: Kai Ambos/ Ottilia A. Maunganidze (eds.), Power and Prosecution (2012), 119, 126 et seq. 141

Clemens Lückemann, Stellungnahme zum Regierungsentwurf eines Gesetzes über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, BT-Drs. 17/3802, 21 March 2011, 3, available at: http://webarchiv.bundestag.de/archive/2011/0408/bundestag/ausschuesse17/a06/ anhoerungen/archiv/07_ueberlange_Gerichtsverfahren/04_Stellungnahmen/Stellungnahme_L__ ckemann.pdf (accessed 11 December 2014). 142

Tobias H. Irmscher, Das Römische Statut für einen ständigen Internationalen Strafgerichtshof, Kritische Justiz 31 (1998), 472, 482.

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It has to be noted, though, that it is State practice that immunises the complementary jurisdiction of the ICC against violations of the right to a lawful judge. Countries with a less stable judiciary, such as Libya143 and the Democratic Republic of the Congo,144 also guarantee the right to a lawful judge in their constitutions. With the ICC investigating situations in both countries, the problem of concurring jurisdiction continues to be relevant from a national law perspective.145 But for the purpose of the present study, only the ICTY and the ICTR require further inquiry for their exercise of a jurisdiction concurring with German courts.146

b) Possibility of Justification The concurring jurisdiction of the ICTR and the ICTY interferes with the right to a lawful judge as enshrined in Article 101 (1) cl. 2 BL. However, such an interference with a fundamental right under the German Constitution does not automatically entail its violation.147 There is still the possibility of justification.148 It has been argued that the concurring jurisdiction of international courts could be justified by the rule of law principle embraced by Articles 20 (3) and 28 (1) BL. Denis Basak has pointed to the fact that the rule of law requires a functioning judiciary capable of providing justice to anyone, stressing that such effectiveness could be ensured by an international organ rather than by the national courts of a country 143 Art. 33 Constitutional Declaration, 3 August 2011, available at: http://www.wipo.int/edocs/ lexdocs/laws/en/ly/ly005en.pdf (accessed on 6 February 2015). The article is somewhat ambiguous as it guarantees the right to resort to one’s natural judge. 144 Art. 19 Constitution of the Democratic Republic of the Congo (Constitution de la République Démocratique du Congo), 18 February 2006, Journal Officiel de la République Démocratique du Congo (JODRC), Numéro spécial 18 février 2006, as amended on 20 January 2011, JORDC Numéro spécial 5 février 2011. 145

Cf. e.g. the case of Abdullah Al-Senussi, where the ICC had to apply the unable and unwilling test with regard to Libya, Pre-Trial Chamber, Prosecutor v. Gaddafi and Al-Senussi (note 139), paras. 169 et seq. With regard to the Democratic Republic of the Congo, cf. ICC, Trial Chamber, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC 01/04 01/07, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Art. 19 of the Statute) of 16 June 2009, paras. 90 et seq., available at: http://www.icc-cpi.int/iccdocs/doc/doc711214.pdf (accessed on 11 December 2014). 146

Roggemann (note 130), 106.

147

Matthias Herdegen, Art. 1 (3), in: Theodor Maunz/Günter Dürig (eds.) (note 53), paras. 42 et seq.

148

Ibid.

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affected by severe crisis and tension149 or by judiciaries of other countries which regularly acquit top-ranking accused on grounds of immunity.150 There is certainly truth to this reasoning, particularly with regard to the ICC, whose complementary jurisdiction was specifically shaped to fill the gap caused by dysfunctional prosecution at the national level. It is, however, insufficient to justify the deferral of efficient domestic proceedings allowed for by both the ICTY and the ICTR Statute. Notwithstanding the fact that ending impunity is indeed a rule of law mission,151 the argument is beside the point when it comes to the question of lawful judge. Nothing suggests that the concurring competence of both a domestic and an international court is indispensable or even beneficial to the struggle against impunity. One functioning judiciary should be sufficient to try a case. If the more suitable forum is indeed the international tribunal, as Basak suggests,152 it should be vested with the power to hear the case instead of the domestic one. But its alleged superiority is by no means capable of providing justification for concurring jurisdiction of both. Additionally, one wonders how the removal of a case from the judiciary of the crime scene could sustainably promote the rule of law in that specific country. It is true that an internationalised trial is preferable over impunity. Yet, it precludes national officials from building the capacities necessary to conduct adequate procedures themselves.153 The international trial is therefore acknowledged to be a second best option when it comes to the promotion of the rule of law.154 Still, the ICC is the only international court to recognise this fact by only claiming complementary jurisdiction. Finally, adherence to the principle of lawful judge is a rule of law criterion in itself.155 With international courts intended to exemplify “the highest international

149

Basak (note 50), 131.

150

Ibid., 140 et seq.

151

Jane E. Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law, Georgetown Journal of International Law 38 (2007), 251, 265. 152

Basak (note 50), 136 et seq.

153

UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies: Report, 23 August 2004, UN Doc. S/2004/616 (2004), summary, para. 44. 154

Ibid., paras. 17, 40.

155

FCC, BVerfGE 4, 412, 416.

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standards of criminal justice”156 and to strengthen the rule of law,157 a trial violating domestic rule of law standards could do more harm than good: It might delegitimise the international tribunal in the eyes of the society it actually intended to stabilise, adding to a perception of injustice and fuelling internal conflicts. At least, there is no sufficient argument to support the assumption that the ambiguous advantages of concurring jurisdiction could outweigh the apparent downsides of violating domestic fundamental rights. Consequently, the rule of law principle cannot justify the interference with Article 101 (1) cl. 2 BL caused by concurring jurisdiction and subsequent acts of cooperation. The same applies to the openness of the Basic Law towards public international law, which has been invoked as an additional justification. The first step of the argument involves the assumption that the concurring jurisdiction of international and domestic tribunals constitutes a rule of customary international law binding as per Article 25 BL.158 In a second step, this finding is used to interpret constitutional provisions which can serve as a justification for interference with fundamental rights.159 The content of the Rome Statute casts doubt over the first step of this reasoning. Unlike the statutes of both the ICTY and the ICTR, it is characterised by an international self-restraint in favour of domestic jurisdiction. Still, even this complementary jurisdiction is fervently rejected by major players of the international community.160 It is thus questionable whether the principle of concurring jurisdiction can indeed rely on a sufficiently widespread practice and acceptance. With regard to the second step, the argument fails to acknowledge that the constitutional legislator, despite his sympathy for international law, ranked it between the Constitution and acts of parliament.161 He thereby clearly rejected the idea that international law could prevail over fundamental rights. However, exempting international criminal tribunals from the scope of Article 101 (1) cl. 2 BL would ultimately 156

Cf. UN Doc. S/2006/893 (note 107), para. 31.

157

UN Doc. S/2004/616 (note 153), para. 38.

158

Basak (note 50), 145 et seq.

159

Ibid., 144 et seq.

160

William Schabas, The International Criminal Court and Non-Party States, Windsor Yearbook of Access to Justice 28 (2010), 1, 1 et seq.; Patrick McEvoy, Reflections on US Opposition to the International Criminal Court, Hibernian Law Journal 6 (2006), 33, 43 et seq. 161

Matthias Herdegen, Art. 25, in: Theodor Maunz/Günter Dürig (eds.) (note 53), para. 42.

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let international law prevail over the Constitution, because the exemption cannot be achieved through mere interpretation. First, the plain and simple wording of the provision lacks any suggestion of such a reading. Second, the rule prohibits the removal of a case from the competent judge. The question of where the respective case is transferred to is of no interest to the guarantee. Hence, no room is left for the interpretation suggested,162 which could in fact be seen as disdainful of the conscious decision the constitutional legislator made regarding the hierarchy of norms. Moreover, the constitutional legislator’s vague sympathy for international cooperation is inadequate to legitimate the derogation from a constitutional guarantee.163 Indeed, the FCC has ruled that the openness of the Basic Law did not entail a general provisio on fundamental rights in cases of international dimensions.164 Hence, the principle cannot provide sufficient justification for the interference caused by concurring jurisdiction.

4. Conclusion In sum, there is no conflict between international tribunals and the German ban on extraordinary courts. Although some international criminal tribunals meet the criteria of an extraordinary court, the German Constitution does not apply to these cases. Likewise, Article 101 (1) cl. 2 BL is not violated insofar as it insists on a domestic legal foundation of all courts. If an international tribunal has received German consent, then the national legislative act carrying that approval provides the necessary domestic legal foundation at the same time. If the court operates without German consent, it does not fall within the ambit of Article 101 (1) cl. 2 BL. Consequently, the requirement of a domestic legal basis does not apply. Yet, the right to a lawful judge is infringed to the extent that the ICTY and the ICTR, exercising their concurring jurisdiction, can demand the deferral of German procedures after the national court has decided to open the main proceedings.

162 Christian Hillgruber, Der Nationalstaat in der überstaatlichen Verflechtung, in: Josef Isensee/ Paul Kirchhof (eds.), Handbuch des Staatsrechts, vol. II (3rd ed. 2004), 929, para. 125. 163

Ibid.

164

FCC, BVerfGE 31, 58, 75 et seq.

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V. Double Effect of Transfer as Solution for Conflicts Remaining Intentionally or not, the steady evolution of international criminal tribunals has coincided with an increased respect towards the domestic right to a lawful judge. Starting from the discretionary concurring jurisdiction of the ICTY and the ICTR, the interference with the privilege has been narrowed down to one merely hypothetical case for the ICC: Deferrals by order of the ICC only infringe the right to a lawful judge if (1) a decision to open the main proceedings has already been taken by a domestic court and (2) the case is still admissible before the ICC, because the State is unable or unwilling to genuinely carry out the prosecution. Considering this last requirement, it is highly unlikely that a German case could fulfil these criteria. As to the ICTY and the ICTR, the national and international authorities involved have gained a lot of experience since the ICTY started its first case, the case of Duško Tadić. Due to that, cooperation runs significantly smoother since then. In fact, Tadić remains the only accused removed from a German court after the decision to open the main proceedings. Although the ICC’s complementary jurisdiction practically eliminates possible violations of the German right to a lawful judge, this need not be the case in countries such as the Democratic Republic of the Congo, where the reason for unjustified delays might well be an intention not to bring perpetrators to justice.165 In these cases, however, the prosecution by the ICC has a remarkable mitigating effect with regard to the right to a lawful judge. In failing to try a case within reasonable time, the national court deprives the accused of his right to a decision, which is in itself an aspect of the guarantee to a lawful judge.166 It is interesting to note that the ICC’s competence in these cases is triggered by a violation of the right to a lawful judge by the national court itself. Although the exercise of concurring jurisdiction is, in principle, incompatible with a domestic right to a lawful judge and should prevent national authorities from cooperating, prosecution by the ICC remedies the effects of the national court’s violation of the principle of lawful judge: the failure to try the case. In fact, the ICC provides the accused with the decision of a competent judge that he was denied by the national 165

Cf. ICC, Trial Chamber, Prosecutor v. Katanga and Ngudjolo Chui (note 145), para. 27.

166

FCC, BVerfGE 3, 359, 364.

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court. This must be taken into account when deciding whether State cooperation with the ICC should be outlawed because of a violation of the right to a lawful judge. Thus, depriving somebody of a judge who is unwilling to decide one’s case cannot gravely violate the principle of lawful judge. The guarantee is a mere formalism without substantive effect on the rights of the accused in cases where it perpetuates an inactive national jurisdiction. An impartial trial by an international criminal tribunal is far closer to the original idea of a lawful judge than a selective shielding of suspects from justice through a State. Thus the complementary jurisdiction of the ICC following a qualified delay in national courts enforces the principle of lawful judge rather than violating it.

State Immunity and Criminal Proceedings: Why Foreign Officials Cannot Enjoy Immunity Ratione Materiae from the Legal Process of Extradition THIAGO BRAZ JARDIM OLIVEIRA(

ABSTRACT: Ever since the judgment by the House of Lords in Pinochet, one widespread assumption has been that foreign officials can enjoy State immunity from extradition proceedings. Further developments, however, shed doubt on this assumption. This article purports to discuss these developments. It concludes that foreign officials can only resist extradition on the basis of State immunity if they are entitled to State immunity from prosecution in the State requesting their extradition. In other circumstances, foreign officials can be subject to extradition proceedings even if they enjoy State immunity in the State from which extradition is requested. The reason is that State immunity from criminal jurisdiction is essentially immunity from prosecution; it does not apply to extradition proceedings. That it has been used as an argument against extradition is mostly due to the reluctance of States to extradite foreign officials to countries where their prosecution would be contrary to international law. KEYWORDS: State Immunity, Extradition, Criminal Jurisdiction, State Officials, State Responsibility, International Cooperation and Mutual Legal Assistance

I. Introduction The topic of State immunity from criminal jurisdiction immediately brings to mind the extradition proceedings brought against General Augusto Pinochet in the United Kingdom.1 Arrested in London, Pinochet was to be extradited to Spain, where he would face prosecution for crimes committed in the name of the Chilean government, and claims that he enjoyed State immunity for these acts loomed over the extradition process. Since his extradition was made dependent on the rejection of hose immunity ( Teaching Assistant in Public International Law at the Faculty of Law, University of Geneva, and Doctoral Candidate at the Graduate Institute of International and Development Studies in Geneva. 1 Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147.

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claims, a common assumption among commentators has been that Pinochet’s immunity for official acts was, at least in principle, a bar to extradition in the same way it would have been a bar to prosecution.2 With little further practice drawing the attention of scholars to the relationship between State immunity and extradition, this assumption relative to the case of Pinochet, namely that foreign officials can enjoy State immunity from the legal process of extradition, seems to have acquired the quality of an obvious truth of international law that needs no demonstration. But consider the following case.3 An official of Mongolia was detained and subjected to the process of extradition in the United Kingdom with a view to his prosecution in Germany. Germany had requested the extradition of that official for crimes committed on German territory. Mongolia, however, opposed extradition, claiming that the crimes in question were official acts performed in the name of the Mongolian State. As a point of law, there was no doubt that the Mongolian official enjoyed State immunity from the criminal jurisdiction of the United Kingdom. Yet his extradition from and by that country was allowed. Could this scenario be reconciled with the precedent of Pinochet or with any other precedent or principle of international law? The answer submitted here is that the above situation is not contrary to international law, and perhaps not even at odds with the decision in Pinochet. Of course, the decision of the House of Lords in Pinochet supports the view that a foreign official can avoid extradition if a claim of State immunity is well founded. But is this as straightforward as it seems, or is there something else that the case of Pinochet could not make apparent outright? With the benefit of later developments, a fresh look into theory and practice should indicate that State immunity may only be an obstacle to extradition if it forbids the exercise of criminal jurisdiction in the country of destina2 See e.g. Hazel Fox, The Pinochet Case No 3, International and Comparative Law Quarterly (ICLQ) 48 (3) (1999), 687; Eileen Denza, Ex Parte Pinochet: Lacuna or Leap?, ICLQ 48 (4) (1999), 949; Pasquale De Sena, Immunità di ex-capi di Stato e violazioni individuali del divieto di tortura: sulla sentenza del 24 marzo 1999 della Camera dei Lords nel caso Pinochet, Rivista di Diritto Internazionale 82 (4) (1999), 931; Andrea Bianchi, Immunity versus Human Rights: The Pinochet Case, European Journal of International Law (EJIL) 10 (2) (1999), 237; Michel Cosnard, Quelques observations sur les décisions de la Chambre des Lords du 25 novembre 1998 et du 24 mars 1999 dans l’affaire Pinochet, Revue Générale de Droit International Public 103 (2) (1999), 308. 3

This is the scenario found in Khurts Bat and Mongolia (intervening) v. Investigating Judge of the German Federal Court, 29 July 2011, [2011] EWHC 2029 (Admin), [2012] 3 WLR 180. The case is discussed in detail further below, see infra, II.C.

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tion of the foreign official, that is, by the State requesting extradition. In circumstances where international law allows the requesting State to prosecute the foreign agent for his or her official conduct, as happened to be the case of Germany in the extradition request involving the Mongolian official,4 the immunity that the official enjoys from the jurisdiction of the requested State should not preclude extradition. Perhaps surprisingly, it is difficult to pinpoint what the commonly held view is on the subject. Has the availability of State immunity for extradition not always depended on whether this immunity prohibits the pending prosecution? It might seem intuitive that the extradition of a foreign official to face a prosecution that does not violate State immunity cannot be reproached on the grounds that it is contrary to State immunity. But criticisms to the outcome of the abovementioned extradition case involving the United Kingdom, Germany, and Mongolia show the potential state of disarray of the subject. Disagreeing with the decision of an English court to allow extradition of the Mongolian official to face prosecution in Germany, one author who spotted the problem contended: Extradition proceedings are an exercise of jurisdiction, specifically criminal jurisdiction, by a court. The question for an English court when determining whether the immunity [ratione materiae or State immunity] from criminal jurisdiction putatively conferred on a foreign State official bars proceedings before that court for her extradition is whether the extradition proceedings themselves, not the prospective prosecution of the defendant in the requesting State, are barred by reason of that immunity.5

Clearly, the effect of this argument would have been to render extradition of the Mongolian official impossible, despite the fact that State immunity was not an obstacle to the very prosecution that the extradition request aimed at ensuring. With little existing practice and too little (virtually nothing) written about the relationship between State immunity and extradition,6 one is perhaps justified in 4 This was so due to an exception to State immunity that applied only in Germany, namely that a foreign official does not enjoy State immunity before the courts of the place where their crimes occurred. For this ‘territorial exception’ see International Law Commission (ILC), Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction by Roman Anatolevich Kolodkin, UN Doc. A/ CN.4/631 (2010), 59. 5 Roger O’Keefe, Decisions of British Courts During 2011 Involving Questions of Public or Private International Law: Public International Law, British Yearbook of International Law (BYIL) 82 (2011), 564, 623. 6

The ILC did not discuss the issue in its work on the obligation to extradite or prosecute. In the final document it adopted on that topic, the Commission noted that questions about “circumstances ex-

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doubting the force of the view expressed in the preceding paragraph, namely that extradition proceedings are per se contrary to State immunity. This is what this paper purports to do. The argument is advanced here that the immunity from criminal jurisdiction foreign officials may enjoy for their official acts does not exempt these officials from the legal process of extradition. Instead, this form of immunity is primarily intended to exempt foreign officials from criminal prosecution – something extradition is not. If at all, claims of State immunity may feature in extradition proceedings only as far as they challenge the propriety of extraditing a foreign official to face a prosecution that would be contrary to State immunity in the requesting State. In support of the above argument, this paper will first examine the available practice on the extradition of foreign officials charged with crimes committed in an official capacity, particularly where State immunity was invoked (II.). This should lend some weight to the argument that, where extradition of foreign officials happened to be frustrated by claims of State immunity, these claims did not challenge the jurisdiction of the State deciding on the extradition request. In other words, they were not claims of immunity from the process of extradition. Instead, they were more likely claims about the merit of granting extradition, reflecting the idea that foreign officials should not be extradited to countries where their prospective prosecution would be barred by State immunity. The final part D. of section II. will consider why it is indeed possible to make this sort of argument in extradition cases. In the section that will follow (III.), an attempt will be made to explain why the ‘criminal jurisdiction’ courts exercise in extradition proceedings may not be contrary to the immunity foreign officials enjoy for their official acts. A conclusion, with a few remarks on the desirability of upholding the views advanced here, will close this paper.

cluding the operation of the obligation to extradite or prosecute,” notably “immunities,” had not been covered by its conclusions, see ILC, The Obligation to Extradite or Prosecute (aut dedere aut judicare): Final Report (2014), paras. 57–59, available at: http://legal.un.org/ilc/texts/instruments/english/ reports/7_6_2014.pdf (accessed on 14 March 2015). The report will appear in Yearbook of the International Law Commission, vol. II (2) (2014). The more recent work by the Commission on the topic of immunity of State officials from foreign criminal jurisdiction, initiated in 2007, has so far left the case of extradition untouched. Consideration of the rule of State immunity, however, which is the one susceptible of raising the problem discussed here, is expected to resume in 2015, with the yet to come fourth report by the Special Rapporteur, see ILC, Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/673 (2014), 52.

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II. Practice on the Extradition of Foreign Officials for Official Conduct A. Pinochet (No 3)

The Pinochet (No 3)7 case seems to be at the root of the view that State immunity constitutes a jurisdictional bar to extradition proceedings.8 This would mean that, if foreign officials are immune from the criminal jurisdiction of one State, not only can this State not prosecute these officials, but also that it cannot extradite them to any other country. This result – immunity from extradition – would hold even if the foreign official enjoys no immunity from prosecution in the State requesting extradition, since State immunity should foreclose the extradition process in limine litis.9 The many developments in the British proceedings against Senator Pinochet, which perhaps support this conception about the relationship between State immunity and extradition, are sufficiently important to deserve comment. The case reached the House of Lords on appeal by the Crown Prosecution Service, acting on behalf of Spain, after the Divisional Court quashed a provisional warrant against Pinochet on the grounds that he was entitled to immunity in respect of the acts with which he was charged.10 The point of law put to the House of Lords was “the proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state.”11 Of the few Lords who felt the need to spell out why they were considering a question of State immunity in extradition proceedings, only Lord Saville raised the point plainly. He indeed considered that in the 7

Pinochet (No 3) (note 1).

8

See O’Keefe (note 5), 623.

9

The first Rapporteur of the ILC echoed this misconception when considering that foreign officials did not enjoy State immunity from extradition to their home State because of an ‘implied waiver:’ “For example, a former Head of State (or other official) can be brought to trial by his State [where he does not enjoy State immunity], and that State can even demand that he be extradited from another country. Such a request would obviously mean a waiver of that person’s immunity with regard to the procedural actions by the foreign State to extradite him,” ILC, Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/646 (2011), 28, para. 48. 10

The provisional warrant was a step in the extradition process antecedent to extradition hearings.

11

Pinochet (No 3) (note 1), 152.

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case at hand, any State immunity available was immunity from the British proceedings of extradition, as these were in the nature of criminal proceedings: It is accepted that the extradition proceedings against [Pinochet] are criminal proceedings. It follows that unless there exists, by agreement or otherwise, any relevant qualification or exception to the general rule of immunity ratione materiae, Senator Pinochet is immune from this extradition process.12

But two other Lords seemed less clear about why (or whether) extradition proceedings per se would have been contrary to any entitlement of Pinochet to State immunity. Lord Phillips reasoned that State immunity, though applicable in civil proceedings, was not an obstacle to extradition.13 His statement, before reaching that conclusion, that the “argument in relation to extradition has proceeded on the premise that the same principles apply that would apply if Senator Pinochet were being prosecuted in [the United Kingdom]”14 could, admittedly, be taken to support the view that a plea of State immunity from British criminal jurisdiction, if not rejected, would have precluded the entire process of extradition just as it would have done a prosecution in that country. But it is perhaps questionable whether Lord Phillips thought, or could have thought, of State immunity as an obstacle to extradition in a way wholly unconnected to the immunity of Pinochet from the forthcoming prosecution, which was of course not in the United Kingdom but in Spain. His Lordship indeed appeared to justify consideration of claims of State immunity for the charges pressed in Spain as somewhat related to the inquiry of whether these charges constituted ‘extradition crimes’ under English law, namely by asking whether prosecution for the conduct underlying the charges would have been possible in the United Kingdom in circumstances comparable to those at issue before Spanish authorities.15 Lord Phillips stated, somewhat telegraphically: The nature of the process with which this appeal is concerned is not a prosecution but extradition. The critical issue that the court has to address in that process is, however, whether the conduct of Senator Pinochet which forms the subject of the extradition request constituted a crime or crimes under English law. The argument in relation to extradition 12

Ibid., 266. See also O’Keefe (note 5), 623.

13

Pinochet (No 3) (note 1), 280, 284, 286, 288.

14

Ibid., 280.

15

On the identification of ‘extradition crimes’ in Pinochet (No 3) see Colin Warbrick, Extradition Law Aspects of Pinochet 3, ICLQ 48 (4) (1999), 959, 960.

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has proceeded on the premise that the same principles apply that would apply if Senator Pinochet were being prosecuted in this country for the conduct in question. It seems to me that that is an appropriate premise on which to proceed.16

It can be contended that the result of this approach is that State immunity would become an obstacle to extradition in circumstances where it would also be a bar to prosecution in Spain. The extradition judge, when deciding on which charges to order extradition, would in fact decide whether prosecution in lieu of extradition is not rendered impossible by State immunity. But he may do so by assuming that the requested State is in a position identical to that of the requesting State:17 For crimes committed on the territory of Spain, the question would be whether, if the conduct underlying the crimes occurred in the United Kingdom, State immunity precluded prosecution in the United Kingdom; for wholly extraterritorial offences, the question would be whether Pinochet had immunity from prosecution in the United Kingdom if the equivalent conduct occurred in corresponding circumstances. In all cases, there should be a correspondence between the answers to these questions and to the one whether State immunity forecloses the actual prosecution in the requesting State, for the simple reason that those answers involve the application of the same rule of international law that should apply to the requesting State. The correspondence between immunity from an imagined prosecution in the United Kingdom and immunity from prosecution in Spain appears more clearly in the opinion of Lord Millet. Similarly to Lord Phillips, he also considered that State immunity did not preclude extradition. But Lord Millet did not fail to notice that “immunity ratione materiae [was] not available in respect of an offence committed in the forum state, whether this be England or Spain.”18 This could indicate that it was at least desirable to have State immunity precluding prosecution in Spain if claims to State immunity were to succeed in avoiding the extradition of Pinochet to that country. The views expressed by their Lordships about why State immunity would have been an obstacle to extradition to Spain may not prove much, but they seem at least to authorise scepticism about the view that State immunity applied to extradition as simply as if the prosecution were taking place in the United Kingdom. Upon closer 16

Pinochet (No 3) (note 1), 280.

17

Warbrick (note 15).

18

Pinochet (No 3) (note 1), 277 (emphasis added).

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inspection, the judgment of the House of Lords as a whole should further justify this scepticism. The outcome of the case – the authorisation to extradite Pinochet to Spain – is well known, but perhaps less so are the different issues that were resolved as a decision on extradition was taken. Spain requested the extradition of Senator Pinochet from the United Kingdom, so he could face trial in Spain on several charges. The question of whether Pinochet enjoyed State immunity only applied for the charges based on his conduct as head of State of Chile. The House of Lords dismissed the other charges as being non-extraditable crimes, for they failed to meet the ‘double criminality rule’ of British extradition law. With regard to the charges for which the claim to State immunity was available, and which met the ‘double criminality rule,’ the House of Lords eventually considered that Pinochet was only partially entitled to immunity. It considered that he had immunity with respect to murder and conspiracy to commit murder in Spain, but not for torture-related crimes. The process of extradition went on, with fewer charges than initially requested by Spain, although Pinochet’s ailing health made extradition impossible. From this recollection of events, three points emerge that may cast some doubt on the opinion that claims to State immunity were directed against the extradition proceedings in the United Kingdom without regard to the forthcoming prosecution in Spain. The first is that those claims of immunity were not dealt with as a preliminary obstacle to the legal process of extradition before English authorities, a characteristic of all forms of immunity from the jurisdiction of a country, notably State immunity.19 On the contrary, several issues that were of substance to the process of extradition against Pinochet were discussed first. The most important of these was the question of whether the charges pressed in Spain constituted “extradition crimes” within the terms of Section 2 Extradition Act 1989.20 In answering this question before that of im-

19

International Court of Justice (ICJ), Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, para. 82: “Immunity from jurisdiction is an immunity not merely from being subjected to an adverse judgment but from being subjected to the trial process. It is, therefore, necessarily preliminary in nature”. 20 Extradition Act, 27 July 1989, available at: http://www.legislation.gov.uk/ukpga/1989/33/pdfs/ ukpga_19890033_en.pdf (accessed on 28 February 2015). See Warbrick (note 15), 959: “On grounds of judicial efficiency, the House of Lords considered the argument with respect to all the outstanding extradition charges against Pinochet, regardless of whether he might have enjoyed immunity with respect to some of them”.

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munity, jurisdiction was exercised in connection with charges for which Pinochet claimed and, in part, enjoyed State immunity.21 Second, the decision of the House of Lords to allow the Spanish request of extradition to proceed was based on a rejection of State immunity that meant Pinochet enjoyed no such immunity from the jurisdiction of the United Kingdom, but neither from that of Spain. For the majority, the removal of immunity was founded on the Torture Convention,22 which “contractually bound” all parties to it to establish criminal jurisdiction over official acts of torture.23 But their Lordships did not seem content to stop at the finding that the United Kingdom was, together with Chile, one of the parties to that Convention. On the contrary, all Lords, except for one, felt the need to emphasise that Spain, the country that actually attempted prosecution, was as much a party to the Torture Convention as was the United Kingdom, so that Chile could not invoke immunity from prosecution in Spain for acts of torture.24 On a later occasion and in another context, the government of the United Kingdom restated the point: [I]n Pinochet (No 3) the majority of the House of Lords reasoned that there was no immunity in respect of criminal prosecution for torture on the basis of the Convention against Torture and the fact that all three countries involved in that case were parties to the Convention against Torture.25 21 Eventually, this led the House of Lords to scrutinise whether the ‘evidence’ provided by Spain would have justified British authorities in issuing a warrant against Pinochet. Under the European Convention on Extradition (13 December 1957, UNTS 359, 273), the standard applicable between Spain and the United Kingdom was the supply of ‘information’ by the requesting State, see Pinochet (No 3) (note 1), 195, 226, 229, 237. Lord Hope even admitted that the information before the House of Lords was “capable of supporting the inference that the acts of torture which are alleged during the relevant period were [in pursuance of a systematic policy of torture],” ibid., 240, 241. 22 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS 1465, 85 (Torture Convention). 23 “The issue is whether international law grants state immunity in relation to the international crime of torture and, if so, whether the Republic of Chile is entitled to claim such immunity even though Chile, Spain and the United Kingdom are all parties to the Torture Convention and therefore ‘contractually’ bound to give effect to its provisions from 8 December 1988 at the latest,” Pinochet (No 3) (note 1), 201 (Lord Browne-Wilkinson). 24 Ibid., 201 (Lord Browne-Wilkinson), 248 (Lord Hope), 260 (Lord Hutton), 267 (Lord Saville), 277 (Lord Millet), 290 (Lord Phillips). Lord Goff dissented. See also ibid., 212–224. 25

European Court of Human Rights (ECtHR), Jones and Others v. The United Kingdom, Judgment of 14 January 2014, available via: http://www.echr.coe.int (accessed on 17 September 2014), para. 179 (emphasis added).

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Finally, the decision by their Lordships to recognise that Pinochet enjoyed State immunity with respect to some of the charges, namely murder and conspiracy to murder in Spain, had the same effect as a decision that these charges were not extradition crimes. That is, it narrowed the scope of extradition with the only consequence that Spain, the requesting State, would be precluded from prosecuting Pinochet for charges other than those for which extradition was granted.26 The charges whose prospective prosecution was thus prohibited were those that the House of Lords found to be covered by State immunity.27 Since the immediate consequence of this finding was directly related to Spain’s ability to exercise its criminal jurisdiction, it is thus arguable that some thought may have been given by the House of Lords to the question of whether State immunity was an obstacle to prosecution in Spain, and not just whether (if at all) it was an obstacle to the jurisdiction of the United Kingdom. The approach of Lord Phillips as interpreted above, namely to examine whether State immunity would have precluded the United Kingdom from prosecuting Pinochet if that country were in the position of Spain, would possibly have attained this result.

B. Adamov

Similarly to Pinochet (No 3), Adamov28 is a case where State immunity was invoked as an argument to prevent extradition. But more clearly than in the judgment of the House of Lords, the decision by the Federal Court of Switzerland (Bundesgericht) between two competing extradition requests may indicate that State immunity constitutes an obstacle to extradition only as a consequence of immunity from prosecution in the country requesting extradition.

26

To the extent Pinochet was to be handed over to Spain pursuant to an extradition order, Spain would be under an obligation towards the United Kingdom not to prosecute Pinochet on charges other than those for which extradition had been granted. 27

Also here, the finding that Pinochet enjoyed State immunity should not differ depending on whether prosecution took place in the United Kingdom or in Spain. In the minds of their Lordships, foreign officials enjoyed State immunity even before the courts of the State where they committed their crimes, so that there was no territorial exception applicable only to Spain (and not to the United Kingdom) by virtue of the localisation of some of the conduct of Pinochet. 28

Federal Tribunal of Switzerland (Bundesgericht), Evgeny O. Adamov v. Bundesamt für Justiz, 22 December 2005, BGE 132 II 81, 82.

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On 29 April 2005, the United States Department of Justice requested Switzerland to arrest Evgeny Adamov, a former Russian minister, with a view to his extradition.29 Adamov was accused in American courts of misappropriating funds provided to Russia by the United States during his term as Russian Minister for Nuclear Energy. While Adamov was already detained for the purposes of extradition to the United States, Russia filed a separate request of extradition on 17 May 2005. It was on 3 October 2005 when, finally, the Swiss Federal Office of Justice ordered the extradition of Adamov to the United States at the expense of the Russian request.30 The Foreign Ministry of Russia issued a declaration on the same day protesting against this decision, in which it affirmed that several arguments militated in favour of extradition to Russia, notably the immunity from foreign criminal jurisdiction Adamov enjoyed as a former Russian official.31 An appeal to the decision was filed on 1 November 2005. On appeal, the Federal Court overturned the order of extradition to the United States. The judgment of 22 December 2005 considered that the argument of State immunity was likely to support giving priority to the Russian request: According to the general principles of international criminal law, it is not up to the United States or any other third State to autonomously pursue, through the mechanism of international judicial assistance, an alleged abuse of office committed by the Minister of a foreign State to the detriment of that foreign State […] In the present case, other obstacles oppose extradition to the United States. This holds true for the question of the priority of the two competing requests and for questions tied to the ‘functional’ immunity of senior officials from foreign criminal prosecution.32 29 The facts are also summarised in ECtHR, Case of Adamov v. Switzerland, Judgment of 21 June 2011, available via: http://www.echr.coe.int (accessed on 17 September 2014). 30

See Federal Office of Justice, Press Release, FoJ orders Adamov extradited to USA: US extradition request takes precedence, 3 October 2005, available at: https://www.bj.admin.ch/bj/en/home/aktuell/ news/2005/2005-10-03.html (accessed on 17 September 2014). 31 Foreign Ministry of Russia, Declaration du Ministère des Affaires Etrangères de la Fédération de Russie à propos de l’extradition d’E. O. Adamov, 1 October 2005, available at: http://mid.ru/bdomp/ brp_4.nsf/7b52686a865d7fd943256999005bcbb4/b81fa6020104c79dc325708f003b53c4 (accessed on 17 September 2014). 32

Federal Tribunal of Switzerland, Adamov (note 28), para. 2.12: “Nach den allgemeinen Prinzipien des internationalen Strafrechts wäre es grundsätzlich nicht Sache der USA oder eines anderen Drittstaates, eine angebliche ungetreue Amtsführung eines ausländischen Ministers zum Nachteil des ausländischen Staates auf dem Wege der internationalen Rechtshilfe selbstständig zu verfolgen. […] Im vorliegenden Fall stellen sich einer Auslieferung an die USA weitere Hindernisse entgegen. Dies gilt namentlich für die Frage der Priorität der beiden konkurrierenden Ersuchen sowie für Fragen der ‘funktionalen’ Immunität hoher Amtsträger gegenüber ausländischer Strafverfolgung”.

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It seems relatively clear that the defence of State immunity from extradition was based on a challenge to the criminal jurisdiction of the United States. Claims to immunity ranked like other arguments that questioned the propriety of prosecution by American courts. Eventually, it was the weaker links of the accused and his offences to the United States, as opposed to Russia, that founded the decision of Switzerland to give precedence to the Russian request of extradition.33 The characteristics of extradition in the case of Adamov should further invite a reconsideration of the idea that State immunity forecloses extradition proceedings because they are an exercise of criminal jurisdiction by the requested State. The entire legal process to which Adamov was subjected in Switzerland, from his provisional arrest and detention to a final decision on extradition, was in the nature of criminal proceedings. Yet Russia did not challenge the jurisdiction of Switzerland to process Adamov in these proceedings, despite the fact that it never abandoned its claims to State immunity.34 This adds to the evidence that the view expressed by Lord Saville in Pinochet (No 3), namely that legal processes of extradition per se violate an entitlement to State immunity, may not be completely accurate.35

C. Khurts Bat

The case of the Mongolian official named Khurts Bat36 provided British courts, which decided on the extradition of Pinochet, with a renewed opportunity to examine claims of State immunity in the context of extradition proceedings. The German Federal Court of Justice (Bundesgerichtshof) issued a European arrest warrant against Khurts Bat for charges based on the abduction and infliction of serious bodily injury to a Mongolian national committed in Germany. At the time the offences in question

33

Ibid., para. 4.

34

Ibid., para. 3.4.2. Russia insisted that State immunity was a bar to foreign prosecution: “Darüber hinaus insistiert hier die Russische Föderation ausdrücklich auf der völkerrechtlichen Immunität ihres ehemaligen Regierungsmitgliedes gegenüber ausländischer Strafverfolgung”. 35

See supra, text accompanying note 12.

36

See supra, note 3.

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occurred, Khurts Bat was and acted as an agent of the Mongolian secret service.37 Upon his arrival in the United Kingdom, Khurts Bat was arrested for the purposes of extradition to Germany. The case reached a Divisional Court of the High Court of Justice of England and Wales on appeal against an order of extradition by a District Judge. The appellantdefendant, joined by the State of Mongolia as the first interested party, claimed that he was entitled to personal immunities from the extradition process.38 Further, they invoked State immunity for the acts with which Khurts Bat was charged in Germany.39 Regarding the first type of immunity (personal immunities or immunities ratione personae), the Divisional Court considered that it would have entitled Khurts Bat to inviolability of his person and immunity from suit. The British court was, however, not satisfied that the defendant was entitled to any such immunity in the United Kingdom. In contrast, the decision on the claim of State immunity was also that it did not preclude extradition, but the argument was framed by Mongolia and decided by the Divisional Court in relation to the criminal jurisdiction of Germany. The question was formulated in the following way: The appellant asserts that as an official acting on behalf of the Government of Mongolia he is entitled to immunity from criminal prosecution in Germany ratione materiae, that is, entitled to immunity by virtue of his actions on behalf of that State as opposed to his status, i.e., ratione personae. The immunity claimed, if established, entitles him to immunity from extradition.40

The Divisional Court also approached it from the same perspective. Followed by Foskett J, Moses LJ wrote:

37 The victim was kept imprisoned in a basement flat in Berlin and was repeatedly drugged by injection. Mongolia accepted responsibility for these facts. Khurts Bat (note 3), para. 67. 38

The argument was that Khurts Bat was a member of a Special Mission sent by Mongolia to the United Kingdom, and that he was also entitled to immunity by virtue of his position as “a very senior governmental officer.” At the time of his arrest, Khurts Bat was the head of the Executive Office of the National Security Council of Mongolia. 39

Khurts Bat (note 3), paras. 64, 140. The argument of State immunity was raised “very late in the day in these proceedings” (Foskett J). According to the judges, the fact that “[State immunity] only arises once the claims to immunity ratione personae have been dismissed” (Moses LJ) and that “it would not, as a matter of logic, arise until claims to immunity ratione personae have been dismissed” (Foskett J) would perhaps explain why the point was raised so late. 40

Ibid., para. 63.

490 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 […] I am persuaded […] that the appellant does not enjoy immunity by reason of his conduct as an official of the Government of Mongolia from prosecution in Germany and, accordingly, does not enjoy immunity from extradition in the United Kingdom.41

This two-step approach, namely that State immunity from prosecution in Germany would have resulted in immunity from extradition, was detrimental to Khurts Bat. For the Divisional Court, the Mongolian official was not immune from extradition because, according to the authorities surveyed, foreign officials enjoy no State immunity from the criminal jurisdiction of a State if the crime in question occurred in the territory of that State.42 In the circumstances of the case, that State was Germany and not the United Kingdom, the country where extradition proceedings took place. One may perhaps contend that the above decision contrasts with Pinochet (No 3). Whereas in Khurts Bat the lack of immunity of the accused in the requesting State – Germany – was crucial for the rejection by the Divisional Court of the argument against extradition, in Pinochet (No 3) the House of Lords did not as clearly consider the claim of State immunity directly and exclusively in relation to the prospective prosecution, namely in Spain. However, it may be questioned whether the decision of the Divisional Court really is a departure from Pinochet (No 3), at least to the extent it concerns the relationship between “immunity from extradition” and “immunity from prosecution in the requesting State.” For reasons that were discussed earlier,43 their Lordships, too, seemed to have weighed, though indirectly, the entitlement of the accused foreign official, in that case Pinochet, to State immunity from the criminal jurisdiction of the requesting State as a component of his defence against extradition to that country. The apparently distinct, more direct approach adopted in Khurts Bat leaps to the eye because the Divisional Court apprehended one substantive aspect of the law of State immunity in a way different from the House of Lords. For the Divisional Court, a ‘territorial exception’ to State immunity existed, so that the accused was not immune from prosecution in the State requesting extradition for the crimes committed in that country. For the House of Lords, in contrast, there was no ‘territorial excep41

Ibid., para. 99. See also ibid., paras. 104–105 (Foskett J).

42

Ibid., paras. 96–98. These authorities included reports by the Special Rapporteur of the ILC on the topic of immunity of State officials from foreign criminal jurisdiction, see supra, note 4. 43

See supra, text accompanying notes 15–17 and notes 22–27.

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tion’ which could have made prosecution permissible in the requesting State while prohibiting it in the United Kingdom. Moses LJ of the Divisional Court indeed admitted that the finding in Khurts Bat against “immunity from extradition in the United Kingdom” was in contrast to “the view of the majority of the House of Lords in Pinochet III that the former Head of State would have immunity from prosecution for murder and conspiracy to murder in Spain.”44 However, judging by the way the House of Lords considered the argument of State immunity in Pinochet (No 3), namely by putting itself in the shoes of its Spanish counterparts, it is arguable that an exception to State immunity existing only in Spain would also have resulted in a lack of “immunity from extradition in the United Kingdom,” in a way analogous to the case of Khurts Bat.

D. The Bases for ‘Immunity from Extradition’ in the Practice of State Immunity

In the two-step approach to State immunity in Khurts Bat seen above, the Divisional Court repeatedly used the expression “immunity from extradition” in the requested State as the consequence of State immunity from prosecution in the State requesting extradition. The expression also featured in Pinochet (No 3). At least as framed by the Divisional Court, this immunity seems akin to the identically phrased “immunity from extradition” individuals often enjoy in respect of political offences.45 This is an immunity directly related to conditions prevailing in the country requesting extradition as that country exercises, or purports to exercise, its criminal jurisdiction over the accused.46 44

Khurts Bat (note 3), para. 99.

45

See e.g. Regina v. Governor of Pentonville Prison, Ex parte Cheng [1973] 2 W.L.R. 746; Ireland Supreme Court, Russell v. Fanning, 19 January 1988, [1988] I.R. 505, reprinted in: International Law Reports (ILR) 79 (1989), 134, 140, 146, 155, 161; Ireland High Court, Quinn v. Wren, 5 November 1984, [1985] I.R. 322, reprinted in: ILR 79 (1989), 108, 120. That someone may be “immune from extradition” is also a vocabulary used in a number of cases, see e.g. id., McMahon v. Leahy, 19 August 1983, ILR 79 (1989), 54, 65; US Court of Appeals (2nd Cir.), Ahmad v. Wigen and Others, 10 August 1990, ILR 104 (1997), 52, 61, 79, 86, 106; US Court of Appeals (5th Cir.), Jimenez v. Aristeguieta, 12 December 1962, ILR 33 (1967), 353, 357. 46

See O’Keefe (note 5), 625. This author, critical to the judgment in Khurts Bat, affirmed that the claim to “immunity from extradition” was “an argument going to the merits of the requested extradition”.

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Perhaps at this stage it becomes clearer why, in the practice surveyed, there is room for the argument that State immunity, though featuring in extradition cases, may not actually be State immunity from extradition proceedings. At risk of repetition, the most compelling evidence for this appeared in Khurts Bat. Even though the Mongolian official was immune from the jurisdiction of the United Kingdom, he was subjected to the entire legal process of extradition in that country and eventually extradited to Germany.47 In contrast, if State immunity were a bar to extradition proceedings, it should have precluded extradition regardless of whether Khurts Bat enjoyed immunity in Germany, the requesting State.48 All the above notwithstanding, why have claims to State immunity, arguably in connection to the prospective prosecution, appeared as obstacles to extradition? How could this state of affairs be justified? On what basis could these claims continue to be made out? The answer to these questions should vary depending on whether national or international rules are being considered. In the abstract, extradition laws often condition an order of extradition by the requested State upon evidence that the requesting State possesses jurisdiction to prosecute or punish the accused, according to generally admitted principles of criminal jurisdiction, for the crimes specified in the extradition request.49 It follows that a valid claim of State immunity could signify that compliance with that condition is impossible, and so too becomes extradition. The same problem could result from treaty rules. For example, the Torture Convention only authorises a State party to extradite a person accused of torture “on the condition that it is to a State which has jurisdiction in some capacity, pursuant to Article 5 47 One author tried to explain this result but stumbled on the premise that State immunity applies in extradition proceedings. He asked whether “the denial of immunity [of Khurts Bat in Germany] apply erga omnes,” so that this “denial of immunity” would have extended to criminal proceedings in the United Kingdom, see Andrew Sanger, Immunity of State Officials from the Criminal Jurisdiction of a Foreign State, ICLQ 62 (1) (2013), 193, 221. 48

The irrelevance of exceptions to State immunity in the requesting State for jurisdiction in the requested State is, mutatis mutandis, the same as when domestic courts enforce a foreign judgment against another foreign State entitled to immunity. The courts of one State that declare enforceable a judgment (a request for exequatur) against a foreign State rendered by a third State cannot rely on the exceptions to State immunity that may have been available in the third State, ICJ, Jurisdictional Immunities of the State (note 19), paras. 127, 132. 49

See generally Albéric Rolin, Quelques questions relatives à l’extradition, Recueil des Cours de l’Académie de Droit International (RCADI) 1 (1923), 177, 184–185. For a survey of cases see José Francisco Rezek, Reciprocity as a Basis of Extradition, BYIL 52 (1982), 171, 186–187. See also ILC, The Obligation to Extradite or Prosecute (aut dedere aut judicare) (note 6), para. 22.

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of the Convention, to prosecute and try him.”50 An entitlement of a foreign official to State immunity, if admitted as an obstacle to prosecution in the requesting State, would frustrate that condition and outlaw his or her extradition.51 In the practice surveyed earlier, particularly the English cases, none of the above conditions was clearly presented as the basis of why authorities of the requested country considered claims of State immunity.52 But while it is mostly unclear on which legal basis the consideration of these claims was possible, the fact that organs of the requested State have attached importance to the argument of State immunity, arguably in connection with the prospective prosecution, suggests a concern with respect of international law. Indeed, the risk involved in extraditing a foreign official to a State where they will receive a treatment contrary to State immunity, namely prosecution, is nothing less than that of incurring international responsibility in connection with the wrongful prosecution. According to Article 16 Articles on the Responsibility of States for Internationally Wrongful Acts, a “State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so” if two conditions are met.53 The first is that “that State does so with knowledge of the circumstances of the internationally wrongful act.” It does not take much to fulfil this condition in the case of extradition, for States extradite individuals for the specific purpose of prosecution (or the enforcement of a criminal conviction) by other States, and in respect of specific criminal charges.54 The second condition requires that the “the act [of prosecution] would be internationally wrongful if committed by that State [which extradites].” To fulfil this condition, which “limits

50 ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, ICJ Reports 2012, 422, para. 120. 51 It is however known that a valid claim of State immunity cannot be made among States parties to the Torture Convention, see supra, notes 24, 25. 52 It is not attempted here to explain whether, under English laws, there are obstacles to a judge of the requested State looking into the question of whether a foreign official is entitled to State immunity in the State requesting extradition. On this point see O’Keefe (note 5), 625. 53 See Art. 16 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 54

According to the ILC, “[t]here is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act,” Commentaries to the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, vol. II (2), (2001), 66.

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article 16 to aid or assistance in the breach of obligations by which the aiding or assisting State is itself bound,”55 it suffices that the right to immunity be one of general international law, and State immunity is indeed of this character.56 The case of Ferdinand et Imelda Marcos57 illustrates the point that domestic courts may examine claims to State immunity from the jurisdiction of another State with the purpose of avoiding international responsibility. Before accepting a request by the United States to disclose banking and other documents against the former head of State of the Philippines, the Federal Tribunal of Switzerland verified that the defendant did not enjoy State immunity from the jurisdiction of the United States. It only proceeded with the request after it found that the Philippine government had waived all immunity from American courts through a note verbale.58 The Federal Tribunal explained that this enquiry was conducted “in response to the desire, expressed by the Federal Tribunal at its session on 28 June 1989, not to cooperate in a possible violation of the law of nations by the requesting State.”59 The likelihood that arguments like this will succeed in other cases, and in particular in the context of extradition, depends in part on the laws of the requested State. It depends on the willingness, but also the capacity, the organs of those States have to comply with international law – something that their laws on extradition may not allow.60 This was perhaps the hurdle the Mexican authorities faced in the case of

55

Ibid.

56

See ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, ICJ Reports 2002, 3, 26. 57

Federal Tribunal of Switzerland, Ferdinand et Imelda Marcos v. Office fédéral de la police, 2 November 1989, ILR 102 (1996), 198. This was a case of legal assistance in criminal matters, governed by laws that also apply to the process of extradition, namely the Federal Act on International Mutual Assistance in Criminal Matters of 20 March 1981. 58

Ibid., 203.

59

Ibid., 204.

60

Before British courts, extradition to certain countries under a European arrest warrant has been challenged on grounds that it would be incompatible with the European Convention on Human Rights (European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5). Even though these grounds were not included in the Extradition Act of 2003, British courts have on occasion weighed arguments based on them. For commentary on two recent cases see J. R. Spencer, Extradition, the European Arrest Warrant and Human Rights, The Cambridge Law Journal 72 (2) (2013), 250.

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Ricardo Cavallo.61 The Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) ordered the extradition of Cavallo, a former official of Argentina, to stand trial in Spain. Cavallo was accused in Spain of crimes committed as a member of the Argentine military government. His position was in this regard similar to that of Pinochet, to the extent that, in both cases, claims to State immunity had been rejected by the Spanish judge as an antecedent to the extradition request.62 But in examining the Spanish request with respect to Cavallo, the Mexican Supreme Court, unlike the House of Lords in Pinochet (No 3), did not double-check whether there was indeed no State immunity from criminal jurisdiction. Arguably, it was not authorised to do so. The extradition treaty between Mexico and Spain prohibited the requested State from examining the lawfulness of prosecution in the requesting State.63 Finally, it is worth noting that claims to State immunity, whose consideration in relation to prosecution in Spain was precluded by the terms of the treaty, did not appear in the extradition proceedings as a challenge to the jurisdiction of Mexico.64 The case of Ricardo Cavallo may therefore add to the evidence that extradition proceedings per se are not contrary to State immunity.

61 Mexican Supreme Court (Suprema Corte de Justicia de la Nación), Decision on the Extradition of Ricardo Miguel Cavallo, 10 June 2003, ILM 42 (2003), 888. 62

See decisions of Judge Baltasar Garzón of 1 September 2000 (Auto de Procesamiento contra Ricardo Miguel Cavallo) and of 5 October 2000 (Auto de ampliación del Auto de Procesamiento), Juzgado Central de Instrucción Número 5 de la Audiencia Nacional (National Pre-Trial Court), Sumario 19/97. Cavallo was charged with crimes committed as a member of the military junta that ruled Argentina between 1976 and 1983. 63 Mexican Supreme Court, Cavallo (note 61), 902: “From an analysis of the [Treaty of Extradition and Protocol], there is no basis for finding that the Mexican State is obligated to examine whether the court of the State requesting the extradition has jurisdiction. In these circumstances, taking into consideration that Article 119, last paragraph of the Federal Constitution limits the extradition proceedings in accordance with the terms of the Constitution itself, international treaties to which the country has signed and their implementing legislation, as well as legal instruments that do not require that the competence of the court of the requesting State be examined. It remains clear that in a proceeding of this nature the State of Mexico is prevented from examining this question”. 64

Cavallo was extradited to Spain in 2003 but re-extradited to Argentina in 2008, suggesting that Argentina never consented to the trial of its official by foreign courts, see decisions of 20 December 2006 and of 13 March 2008, Audiencia Nacional, Sala de lo Penal (Penal Court, National High Court), Sección Tercera, Sumario 19/1997, Rollo de Sala 139/1997, Juzgado Central de Instrucción Número 5. In this sense, see Ingrid Wuerth, Pinochet’s Legacy, American Journal of International Law 106 (4) (2012), 731, 755, footnote 171.

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III. Why Foreign Officials May Not Be Immune from the Legal Process of Extradition The practice surveyed may not be sufficient to answer the question that gives title to this final section, namely why foreign officials may not be immune from the legal process of extradition. Despite the fact that States do not seem to consider State immunity as an insurmountable obstacle to extradition proceedings, it could be contended that too little practice exists to modify an international rule.65 Of course, this statement starts from the premise that, by default, the rule is that State immunity applies to extradition in the same way it does to criminal prosecutions. But the accuracy of this premise may be open to question, especially as it appears to sit somewhat uncomfortably with the practice of States. The view submitted here, which attempts to reconcile that practice with theory, is that the State immunity enjoyed by foreign officials, though often believed to be immunity from criminal proceedings, is actually immunity from exercises of jurisdiction over the conduct of those officials. Courts exercise this kind of jurisdiction in criminal prosecutions, but not in extradition proceedings.

A. The Meaning of State Immunity from Criminal Proceedings

Despite a few uncertainties about the acts for which foreign officials enjoy State immunity,66 there are no serious doubts that this is a subject-matter immunity, or immunity ratione materiae.67 Unlike personal immunities (immunity ratione personae), which also apply to measures that create a mere risk of embarrassment for “the effective performance of their [beneficiaries’] functions,”68 State immunity is not a personal defence against arrest, detention, or subjection to legal proceedings. Instead, State immunity attaches to acts. It is accorded to foreign officials “to prevent the 65

Art. 38 (1)(c) Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute). 66

For a thorough study of the question, see Pasquale De Sena, Diritto internazionale e immunità funzionale degli organi statali (1996). 67

See ILC, Report on the work of its sixty-fourth session, UN Doc. A/67/10 (2012), paras. 119–

125. 68

ICJ, Arrest Warrant (note 56), para. 53.

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legality of such acts [to which State immunity is attached] from being adjudicated upon in the municipal courts of a foreign State.”69 As Lord Millet further explained in Pinochet (No 3), “[State immunity] operates to prevent [those acts] from being called into question in proceedings before the courts of another, and only incidentally confers immunity on the individual.”70 In Certain Questions of Mutual Assistance in Criminal Matters,71 a series of statements by the International Court of Justice (ICJ) about the relationship between State immunity and the law of State responsibility seems to support this point. Somewhat late in the proceedings before the Court, the government of Djibouti formulated the claim that officials of that State enjoyed immunity ratione materiae from foreign criminal jurisdiction. For the Court, claims to State immunity in favour of those officials were essentially a claim of immunity for the Djiboutian State.72 But for this immunity to apply, the subject of proceedings needed to be acts of a certain quality, notably conduct attributable to the State of Djibouti, so that these proceedings would have amounted to an impermissible exercise of jurisdiction over the acts of Djibouti.73 The above rationale for the rule of State immunity is not without practical consequences, which are likely to be different from any personal immunity.74 While per-

69 Pinochet (No 3) (note 1), 270 (Lord Millet). See also ibid., 201 (Lord Browne-Wilkinson), 210 (Lord Goff). Also in this sense see Dapo Akande/Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, EJIL 21 (4) (2011), 815, 831–834. 70

Pinochet (No 3) (note 1), 269.

71

ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ Reports 2008, 177. 72

Ibid., 242, para. 188.

73

Ibid., 243, para 191: “The Court observes that it has not been ‘concretely verified’ before it that the acts which were the subject of the summonses […]” (emphasis added). See also ibid., 244, para. 196. The Court explained 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”. 74 The ILC has so far only hinted at the problem: “the rationale for the two types of immunity might not be exactly the same and it was suggested that it might be useful to examine the issue further in order to determine whether any differences in possible rationales were so fundamental as to occasion different consequences,” see ILC (note 67), para. 108. See also ILC, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/661 (2013), para. 47: “The distinction

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sonal immunities would normally entitle foreign officials to complete exemption from any legal process, including extradition proceedings, State immunity would not. Though there might be controversies as to whether foreign officials enjoy immunity for every act attributable to a foreign State, generally termed ‘official acts,’75 it seems to follow that proceedings that do not have either the purpose or effect of adjudicating upon any act cannot per se be contrary to any claim of State immunity. As will be discussed in the following paragraphs, in proceedings that decide on the extradition of foreign officials, neither the acts of the accused nor, for that matter, the acts of a foreign State are the subject of adjudication.76

B. The Acts of the Accused in Extradition Proceedings

It is not the purpose of extradition proceedings to judge the criminal charges for which extradition is requested, nor do these proceedings have the effect of a criminal

between immunity rationae personae and immunity rationae materiae has been discussed and generally accepted in doctrine, either in those words or as ‘personal immunity’ and ‘functional immunity.’ As both types of immunity have also been adequately addressed in the preliminary report of the former Special Rapporteur and in the memorandum by the Secretariat, there is no need to revert to the issues discussed in those documents at this time”. 75 It is perhaps no coincidence that controversies about the scope of State immunity relate, almost exclusively, to the definition of those acts, usually called ‘official acts,’ that deserve immunity. See, generally, ILC (note 67), paras. 120–125. Another, perhaps minor, controversy about State immunity is whether this is always immunity from jurisdiction or also, at least under certain circumstances, immunity from liability. This distinction is, however, without consequence for the question discussed here, since both types of immunity preclude proceedings that adjudicate upon conduct or that attach criminal consequences to conduct, see e.g. Akande/Shah (note 69), 826–287. On State immunity (possibly from liability) from a subpoena order see International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, The Prosecutor v. Tihomir Blaškić, IT-95-14-AR 108bis, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, reprinted in: ILR 110 (1998), 607, 707: “[State officials] cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State”. 76 In a memorandum on State immunity from criminal jurisdiction, the Secretariat of the United Nations seems to have admitted that State immunity does not apply to extradition proceedings. In the section where it explained the meaning of ‘criminal jurisdiction’ in the sense concerned by State immunity, it described the memorandum as “essentially concerned with situations in which an individual may be prosecuted in a foreign jurisdiction.” Extradition only came in a subsequent section, described as a mechanism of “cooperation for the exercise of criminal jurisdiction,” ILC, Immunity of State Officials from Foreign Criminal Jurisdiction: Memorandum by the Secretariat, UN Doc. A/CN.4/596 (2008), 13, 17, paras. 9, 13.

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judgment.77 This remains true even if extradition is granted on condition that there be some evidence supporting the charges. In countries of a civil law tradition, mostly on the basis of mutual trust and confidence between extradition partners, to extradite a person accused of crimes elsewhere a State has only to be satisfied that charges were regularly instituted in the requesting State against that person.78 The Federal Tribunal of Switzerland, for example, based extradition on formal evidence of arrest warrants issued by the Federal Republic of Germany in the case of Kroeger.79 To the claim by the accused that the charges were based on his conduct “exclusively [performed] in an official capacity and under orders (specifically under a secret order from Hitler) so that the actions of which [he was] accused [were] to be attributed to the German State,”80 the tribunal responded that “[t]he extradition judge is exclusively required to examine whether or not the conditions for extradition are fulfilled.”81 The situation is not essentially different in common law countries, even though their requirements for extradition tend to be somewhat more exacting. For example, there may be a requirement for the request of extradition to make a prima facie case against the accused, or to show a ‘probable cause’ of guilt.82 To examine these requirements, magistrates evaluate the weight of the evidence against the accused person, but theirs is a judgment of the evidence, not a judgment of the charges. For this reason, 77

See André Mercier, L’extradition, RCADI 33 (1930), 164, 177: “ce serait aller trop loin de dire que l’extradition appliquée à un condamné est une exécution d’un jugement répressif étranger. L’exécution de celui-ci, ce ne peut être que l’application de la peine qu’il prononce. L’extradition n’est pas l’application d’une peine; elle doit simplement rendre possible cette exécution, dont la charge et la responsabilité incombent à l’Etat requérant”. 78

See J. Puente Egido, L’extradition en droit international: problèmes choisis, RCADI 231 (1991), 9, 58–59: “dans le système continental européen, la preuve exigée porte sur la régularité de la procédure de demande et sur l’authenticité des documents présentés – il s’agit donc d’une preuve formelle”. 79 Federal Tribunal of Switzerland, Kroeger v. Schweizerische Bundesanwaltschaft, 11 May 1966, BGE 92 108, 109. 80

Ibid., 610.

81

Ibid.

82

This practice is not without exceptions. The United Kingdom, being a party to the European arrest warrant, does not require prima facie evidence to be shown for extraditions to EU Member States. The Extradition Act of 2003 also dispenses with the prima facie requirement in relation to other designated countries. On the abandonment of the requirement in Australian practice see Ned Aughterson, The Extradition Process: An Unreviewable Executive Discretion?, Australian Yearbook of International Law 24 (2005), 13.

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judicial review of judgments in extradition proceedings, in order to secure the interests of the accused, can be more limited than in trial proceedings, and sometimes does not even exist.83 The same is true of the capacity of the accused to challenge the evidence against him for the purposes of extradition84 or to produce arguments in his or her defence against extradition.85 In fact, judgments on extradition carry no weight on the guilt of the accused person; a decision allowing extradition does not have the effect of a criminal conviction, any more than a refusal to extradite has the effect of acquitting the accused person of the offences in respect of which extradition is denied.86

C. The Subject of Judicial Proceedings of Extradition

There is no denying that most of the time there is a judicial phase in the process of extradition that often takes the form of criminal proceedings. In Pinochet (No 3) Lord Saville thought this was enough for State immunity from ‘criminal jurisdiction’ to exempt Pinochet from the process of extradition.87 While the preceding paragraphs may have presented reasons to doubt the accuracy of this statement, the point here is to further elaborate on what is perceived to be an incoherence in the argument. As the argument would go, extradition of foreign officials should not proceed since it 83 See e.g. US Court of Appeals (5th Cir.), Escobedo v. United States of America, Castillo v. Forsht, 14 August 1980, ILR 79 (1989), 429, 432: “The scope of habeas corpus review of a magistrate’s extradition order is quite narrow. Such review is limited to determining ‘whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty;’” Canadian Supreme Court, United States of America v. Burns and Rafay, 15 February 2001, [2001] 1 SCR. 283, 2001, reprinted in: ILR 124 (2003), 298, 311–312. 84

See e.g. Federal Court of Appeal of Canada, Re State of Wisconsin and Armstrong, 5 January 1973, ILR 69 (1985), 240. 85

See e.g. In re Schmidt [1995] 1 A.C. 339. The applicant attempted to resist extradition by invoking the Bennett principle, according to which it would have been an abuse of process by the British courts to proceed with extradition because he was forcibly brought into the United Kingdom in disregard of the law. The House of Lords considered that the principle, which applied to criminal prosecutions, did not apply in extradition proceedings. Lord Jauncey further suggested that this was a matter for the courts of the requesting State in the prospective prosecution. 86

See e.g. Canadian Supreme Court, Vardy v. Scott et al., 25 February 1976, [1977] 1 SCR 293, reprinted in: ILR 69 (1985), 228, 236; Constitutional Court of South Africa, Geuking v. President of the Republic of South Africa, 12 December 2002, ILR 132, 568, 603, 604. 87

See supra, note 12.

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would depend on a judicial determination that is made impossible by State immunity.88 Not until the end of the 19th century, with the advent of a human rights conscience and the need to provide guarantees for these rights,89 were domestic courts entrusted with some role in the extradition process.90 The main thrust of the judiciary has since been to make sure that arrest, detention, or other measures restrictive of personal freedoms, adopted with a view to extradition, are not arbitrary. But this has not converted the process of extradition into a judicial activity (which in essence it is not) that would depend on an exercise of criminal jurisdiction over the conduct for which extradition is to be ordered. One of the classic authors on the subject, writing at a time when the judiciary had already taken responsibility for extradition, noted that extradition is not a jurisdictional act (Rechtspflege) but simply an act of cooperation (Rechtshilfe).91 The process of extradition is but one mechanism of international cooperation whereby States transfer individuals to other States, with the characteristic that this transfer is made for the purposes of enabling criminal prosecution or execution of a sentence. Moreover, States extraditing a person to another State often do not have the power to sanction that person for the charges at the basis of extradition. This means that these

88 In this sense, see Roger O’Keefe, Immunity ratione materiae from extradition proceedings: A rejoinder to Thiago Braz Jardim Oliveira, EJIL: Talk! (2013), available at: http://www.ejiltalk.org/ immunity-ratione-materiae-from-extradition-proceedings-a-rejoinder-to-thiago-braz-jardim-oliveira/ (accessed on 23 February 2015): “extradition involves judicial proceedings, these proceedings are of a criminal character – that is, they are heard by a criminal court, often in the form of a magistrate, rather than by a civil or administrative court […] [State immunity] serve[s] to render internationally unlawful, to the extent of the immunity, the forum state’s subjection of the beneficiary of the immunity to judicial proceedings […] the question must be whether the extent of the immunity is such that the forum state’s subjection of the beneficiary to judicial proceedings would indeed be internationally unlawful. In the case of extradition proceedings, the forum state is the state where the extradition proceedings take place”. 89 See Rezek (note 49), 201. Early extradition treaties were concluded only to render extradition obligatory under certain circumstances, creating inter-State obligations. The concern with the rights of individuals came much later. 90 See Puente Egido (note 78), 50–52, 62 et seq. Countries that today give the judiciary a prominent position in the extradition process have moved from a purely ‘administrative system’ to a ‘mixed system,’ but the executive still retains an important position, see e.g. Aughterson (note 82). 91 Ferdinand von Martitz, Internationale Rechtshilfe in Strafsachen (1888), 55, cited in Puente Egido (note 78), 42, who considers this consonant with contemporary practice.

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States do not even have the power to deploy a true jurisdictional act.92 On the contrary, their lack of criminal jurisdiction not only justifies extradition93 but sometimes constitutes a precondition for it;94 should State immunity preclude the criminal jurisdiction of these States from prosecuting foreign officials for their official acts, this would in fact make extradition permissible. There is no denying that judicial proceedings, even ‘criminal proceedings,’ may be a precondition to extradition, which is an act that negatively affects the person of the accused. However, these proceedings test whether an extradition request fulfils the formal conditions established in agreements and in the domestic law of the requested State;95 they ask whether the requesting State has jurisdiction to prosecute the accused person;96 they make sure the prospective treatment of the accused will meet certain standards;97 they are in essence an exercise of jurisdiction over the legality of surrender, whose purpose is to afford the accused some opportunity to challenge 92 The one classic author who thought extradition was a truly jurisdictional act only maintained this position based on the assumption that universal jurisdiction existed with respect to all crimes. For him, this was necessary to justify the right of States to extradite persons accused of crimes committed abroad, Heinrich Lammasch, Auslieferungspflicht und Asylrecht (1887), 42, cited in Puente Egido (note 78),41. 93 Extradition would lose much of its interest if there were no limits to the criminal jurisdiction of States, see Mercier (note 77), 177–178; Puente Egido (note 78), 26: “l’extradition nous apparaît comme un correctif des insuffisances qui tiennent à la territorialité du pouvoir coercitif des Etats”. 94

See e.g. Secs. 5 and 23 (a) Law on International Cooperation in Criminal Matters of Argentina (Ley 24767, translation available at: https://www.imolin.org/doc/amlid/Argentina/Law_No._24767.pdf (accessed on 23 February 2015)); Art. V Extradition Treaty between Brazil and the United States, 13 January 1961, UNTS 532, 177. See also Rezek (note 49), 184, who explains that the rule of non-extradition of nationals in civil law countries is acceptable insofar as their courts can often prosecute nationals, even for crimes committed abroad, on the basis of the nationality principle; further, for the author, it is understandable that countries such as Great Britain, where the nationality principle often constitutes an insufficient basis for criminal jurisdiction, show more willingness to extradite their own nationals. 95 Most extradition treaties require the conduct in respect of which extradition is sought to be punishable by the law of both the requesting and requested States (the double criminality requirement), and that the penalty imposed be of a certain type (usually imprisonment) and of a certain minimum length, see e.g. Art. 2 (1) Extradition Treaty between the United Kingdom and the United States, 31 March 2003, Treaty Doc. 108-23, available at: http://www.state.gov/documents/organization/ 187784.pdf (accessed on 23 February 2015) . 96

See ICJ, Questions relating to the Obligation to Prosecute or Extradite (note 50), 461, para. 120; Rolin (note 49), 184; Rezek (note 49), 186. 97 International and domestic laws may prohibit extradition in view of the potential treatment in the requesting State, see e.g. the principle of non-refoulement in Art. 33 (1) Convention Relating to the Status of Refugees, 28 July 1951, UNTS 189, 150. See also ECtHR, Soering v. The United Kingdom, Judgment of 7 July 1989, Series A, No. 161, para 113.

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extradition.98 If State immunity were to preclude this exercise of jurisdiction, it would in reality preclude the very opportunity an individual has to challenge his or her extradition. With respect, there seems therefore to be a non sequitur in the idea that State immunity constitutes an obstacle to the extradition of foreign officials because a judicial phase, arguably prohibited by immunity, must precede extradition. In fact, any person subject to the extradition process may waive this judicial phase, and extradition will proceed without court hearings.99 There is no reason why a foreign official should not be able to waive it too, with the consequence that there will be no occasion to raise any argument of immunity. This, namely leaving a decision to allow proceedings to continue at the discretion of a foreign official who enjoys immunity, is unthinkable in criminal prosecutions, not so much because the accused cannot plead guilty, which they can, but because only their State can waive State immunity and allow prosecution to resume.100

IV. Conclusion Three sentences will summarise the conclusions of this short paper: (i) foreign officials do not enjoy State immunity from extradition proceedings; (ii) foreign officials may, however, invoke State immunity from the jurisdiction of the requesting State – the prospective prosecution – as an argument against extradition; (iii) foreign officials who enjoy State immunity from the criminal jurisdiction of one State can still be extradited from that State to another where State immunity is unavailable. 98

See Alona E. Evans, Acquisition of Custody Over the International Fugitive Offender: Alternatives to Extradition: A Survey of United States Practice, BYIL 40 (1964), 77, 98–99. It is on this basis that the author distinguishes extradition from other methods of rendition, some of which are still lawful despite the lack of judicial safeguards. See also Rezek (note 49), 202. 99 See e.g. National Supreme Court of Justice of Argentina (Corte Suprema de Justicia de la Nación), Domingo Soapa Case, March 1928, ILR 4 (1931), 347: “That extradition not being, in reality, a cause in which the culpability of the person is enquired into, but merely a judicial proceeding to establish his identity and compliance with the requirements of the law and of the respective treaties, the affected party could validly waive, for his personal advantage, as he has done, the requirements of that proceeding, as such waiver does not affect the public order nor infringe upon the rights of third parties”. 100

See ILC, Third Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/646 (2011), 20, para. 33; ICJ, Arrest Warrant (note 56), 21, 25, paras. 52, 61; US Court of Appeals (4th Cir.), In Re Grand Jury Proceedings, 5 May 1987, ILR 81 (1990), 599, 602.

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The above conclusions have been built on two bases. First, it seems that customary law in the specific field of extradition admits of those conclusions. The practice of States and their courts on extradition is that foreign officials have avoided extradition once this was to countries where they enjoyed State immunity from prosecution; however, foreign officials have not always avoided extradition once there was no State immunity in the requesting State, even if State immunity precluded criminal jurisdiction in the country granting extradition. Second, there is reason to believe that foreign officials may not be entitled to State immunity from extradition proceedings as a matter of customary law in general. It was submitted that the immunity from criminal jurisdiction foreign officials enjoy with respect to their official acts is essentially immunity from prosecution; unlike personal immunity, it does not apply to proceedings that only affect the person of the foreign official, without passing judgment on his or her acts. Such is the nature of extradition proceedings. Finally, it may be contended that what is submitted here is not just the law as it stands, but also a law that is consonant with justice. No one could seriously contend that it is unjust for a fugitive to be extradited to a country where international law allows his or her prosecution. The point of having judicial proceedings as part of the procedure of extradition is precisely to make sure that no arbitrary restriction of individual freedoms takes place in the requested State, principally in view of the prospective prosecution. This is certainly indispensable in days where the rule of law must ensure respect for individual liberties. But the power of the territorial State to set conditions for these liberties, to control the entry and establishment of individuals within its territory, to refuse asylum to foreigners, to expel and deport subjects deemed harmful to the public order, and to extradite in accordance with the law, does not depend on the existence of any punishable conduct by these subjects. Nor, for that matter, does it depend upon the jurisdiction of the territorial State to judge the conduct of these individuals. An individual found in the territory of a State who is suspected of a crime in another is therefore susceptible of being arrested, provisionally detained,101 and

101

The above explains that, in a later development of Adamov (note 28), the European Court of Human Rights considered that the preparatory measures to his extradition to the United States, to face prosecution for acts committed in an official capacity, were not contrary to domestic nor international laws. Rejecting his complaints against Switzerland, the country that subjected him to the process of extradition, for violation of his personal freedoms, the European court found “that the applicant’s detention with a view to his extradition to the USA, being based on a valid arrest order and pursuing the

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eventually extradited to a competent forum, even if the territorial State is unable to prosecute him, perhaps by reason of State immunity.102

purpose of inter-State cooperation in fighting cross-border crime […] [was] ‘in accordance with a procedure prescribed by law’, namely both Swiss law and international law,” ECtHR, Adamov (note 29), para. 72. 102 The proviso is that the local laws foresee this possibility and that the requirements set forth in that law are met, and, from the perspective of international law, that the treatment of the accused in the receiving State will not violate treaty or customary law.

Avoiding Kadi – ‘Pre-emptive Compliance’ with Human Rights when Imposing Targeted Sanctions SINTHIOU BUSZEWSKI( AND HENNER GÖTT((

ABSTRACT: To avoid the “Kadi-scenario,” States cannot ‘hide behind’ the primacy of UN obligations: UN resolutions which target individuals directly do not simply appear out of the blue. They are drafted and applied by States which are, to a large extent, bound by human rights treaties. However, in the context of UNSC sanction regimes, human rights issues are often only addressed from an ex post perspective. By contrast, this article argues that if a State can be held responsible for an implementation measure, as the Kadi and Nada judgments suggest, the same obligation to respect individual rights and freedoms also exists while establishing a sanctions regime and while making listing or delisting proposals to a Sanctions Committee. The article will enquire into the specific scope of human rights obligations in the establishing and listing phase of UN sanction regimes. Both dimensions i.e. the obligation to refrain from infringements and the positive obligation to give effect to human rights, will be addressed. KEYWORDS: Kadi, Nada, Al-Dulimi, Bosphorus, Positive Obligation, Sanctions, UNSC, Art. 103 UN Charter, Act of State, Equivalent Protection, Jurisdiction, Extraterritoriality, Margin of Appreciation

I. Introduction During the last 15 years, the United Nations Security Council (UNSC) has increasingly imposed so-called targeted sanctions, i.e. sanctions directed against specified individuals and groups. These sanctions have a far more direct impact on the affected individuals, who, rather than being mediated by their home or host States, ( Doctoral Candidate and Research Associate at the Walther Schücking Institute for International Law, University of Kiel, and at the Humboldt University Berlin. (( LL.M. (Cambridge), Research Fellow at the Heinrich-Heine-University Düsseldorf and Doctoral Candidate at the Institute for International and European Law, Georg-August-University Göttingen. We thank Christoph Beinlich and Sarah Bothe for their research assistance and Stefan Martini and Philipp Stöckle for their very helpful comments on the draft paper.

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are directly targeted by the United Nations (UN). Targeted sanctions have sparked criticism on account of a lack of sufficient procedural and substantial safeguards for the affected individuals’ human rights.1 The UN has reacted by establishing review mechanisms, namely the Office of the Ombudsperson2 and the Focal Point for Delisting.3 However, these mechanisms, though a step forward, still fall short of review mechanisms embodied in established human rights regimes, such as the European Convention on Human Rights (ECHR),4 the International Covenant on Civil and Political Rights (ICCPR),5 national regimes, or the European Union (EU).6 The UN itself has not acceded to any human rights treaty. Hence, neither the UNSC nor its subsidiary bodies are under a treaty obligation to respect human rights when imposing targeted sanctions. The only conceivable obligations of the UN in this respect might be found in international customary law.7 The only obligations from which the Charter of the United Nations (UN Charter)8 cannot derogate are the core standards of protection that have become ius cogens.9 As was illustrated by the European Court of First Instance’s (CFI) Kadi decision, this standard only

1

Erika de Wet, The Legitimacy of United Nations Security Council Decisions in the Fight against Terrorism and the Proliferation of Weapons of Mass Destruction: Some Critical Remarks, in: Rüdiger Wolfrum/Volker Röben (eds.), Legitimacy in International Law (2008), 131, 140 et seq. 2

Established by SC Res. 1904 of 17 December 2009, last amendment: SC Res. 2161 of 17 June 2014.

3

Established by SC Res. 1730 of 19 December 2006, last amendment: SC Res. 2161 of 17 June 2014.

4

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 005, UNTS 213, 222 (ECHR). 5 International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171 (ICCPR). 6 For a survey of regional mechanisms see Patrick Abel, Menschenrechtsschutz durch Individualbeschwerdeverfahren, Archiv des Völkerrechts (AVR) 51 (2013), 369. 7

Jan Klabbers, International Institutions, in: James Crawford/Martti Koskenniemi (eds.), The Cambridge Companion to International Law (2012), 228, 235; Andreas von Arnauld, Völkerrecht (2nd ed. 2014), 153. 8 9

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

See the reasoning of the Court of First Instance (CFI) in Case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, 2005 ECR II-3649; cf. Robert Kolb, Recueil des Cours de l’Académie de Droit International de La Haye (RCADI) 367 (2014), 215.

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protects the most fundamental human rights guarantees and does not even come close to the higher standards guaranteed by most treaties.10 The impact of human rights on UN targeted sanctions has been extensively discussed and was brought before a number of regional and national bodies, which, in some instances, have found human rights violations.11 Up until now, debates have largely centred on the implementation of targeted sanctions through national or supranational measures, a field where the conflict between the obligation to implement UNSC resolutions and regional or national human rights guarantees is particularly visible. With this paper, we aim to illuminate the relevance of human rights in the preceding phases of sanctioning. The first phase is the process of drafting and voting for (or against or abstaining, respectively) the establishment of a new sanctions regime in the UNSC by its current and permanent members (‘the establishing phase’). The second phase is the process of proposing individuals and corporations to a Sanctions Committee for listing or delisting after a new sanctions regime has been established (‘the listing phase’).We pose the following questions: a) Do human rights obligations of a UN Member State which is currently a UNSC member limit that State’s capability to negotiate and vote in favour of a resolution establishing a new sanctions regime? Is, for example, a UNSC member who is also party to the ECHR prevented from drafting and voting in favour of a resolution establishing a sanctions regime which would infringe on rights guaranteed by the ECHR? b) Do the said human rights obligations limit a UN Member State’s capability to propose certain individuals for listing, or demand a delisting proposal, in existing sanctions regimes? The primary focus of these questions is not ex post judicial review; they rather seek to explore preconditions and limits for ‘preventive human rights compliance.’ Our hypothesis is that, besides including specific human rights guarantees, designing sanc10 CFI, Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, 2005 ECR II-3649, para. 226. 11 Erika de Wet, From Kadi to Nada: Judicial Techniques Favouring Human Rights over United Nations Security Council Sanctions, Chinese Journal of International Law 12 (2013), 787; Federal Court of Canada, Abousfian Abdelrazik v. The Minister of Foreign Affairs and the Attorney General of Canada, Judgment of 4 June 2009, 2009 FC 580; Her Majesty’s Treasury v. Mohammed Jabar Ahmed and Others [2010] UKSC 2.

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tions regimes in a way that leaves room for human rights-friendly implementation might be a feasible way for UN Member States to prevent human rights bodies from finding human rights violations. The issue of reconciling targeted sanctions with human rights obligations can be viewed both from the ‘universal’ perspective of UN law equally applicable to all UN Member States on the one hand and ‘particular’ human rights regimes on the other (II.). We will first adopt the perspective of UN law, arguing that a human rightsfriendly design of sanctions regimes is generally permissible as long as this does not conflict with obligations under the UN Charter or applicable UNSC resolutions (III.). Subsequently, approaching the topic from the perspective of human rights regimes, we will argue that these regimes can apply to a State’s conduct in both the establishing and listing phase. While in many cases, human rights obligations can be sufficiently respected in the subsequent implementation phase, human rights may still pose limits to State conduct in the antecedent phases. These may include both duties to refrain from certain conduct and to actively protect human rights (IV.).

II. Plurality of Perspectives The question of how and to what extent human rights law limits a State’s behaviour in the establishing and listing phases can be approached from two perspectives: On the one hand, we may examine which obligations arise under the UN Charter and applicable UNSC resolutions (‘the UN perspective’), which is a ‘universal’ perspective inasmuch as it is the same for all UN members. On the other hand, a State’s conduct can be analysed as to its consistency with its obligations under an applicable human rights instrument (‘the human rights perspective’). The latter is the ‘inside perspective’ of those UN Member States who are parties to a human rights instrument and does not apply to those who are not. It is at the same time the perspective of human rights bodies when scrutinising the legality of targeted sanctions. For clarity, the purpose of referring to these perspectives is purely descriptive and no qualitative distinction between the two different branches of international law is hereby intended. While from a UN perspective, Member States tend to have wide margins shaped only by few and often broad principles, the picture can be different from the human

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rights perspective: Cases like Kadi illustrate that human rights bodies will give precedence to the (often regional) human rights perspective. As a result, a sanction can at the same time be consistent with ‘universal’ UN law and in violation of the human rights obligations of only some UN members. In such a case, adherence to human rights might impair the efficacy of the sanction and vice versa.

III. The UN Perspective Adopting the UN perspective, the potential conflict between effective sanctions and human rights seems to be solved in favour of the former. Article 103 UN Charter reads: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Article 103 UN Charter does not give general precedence to the UN Charter or to UNSC resolutions; it rather only applies in the case of a conflict between two specific obligations.12 Thus, primacy of UN obligations is restricted to cases where such an actual conflict exists. At the outset, it is worth noting that Article 103 UN Charter only applies to conflicting obligations under international agreements. Domestic human rights remain unaffected.13 In its 2008 Kadi I decision, the European Court of Justice (ECJ) even held that: the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights.14

12 European Court of Human Rights (ECtHR), Al-Jedda v. The United Kingdom, Judgment of 7 July 2011, RJD 2011-IV, 305, para. 101; for further elaboration see Kolb (note 9), 116 et seq., 119; Theodor Schilling, Der Schutz der Menschenrechte gegen Beschlüsse des Sicherheitsrates, Zeitschrift für ausländisches und öffentliches Recht (ZaöRV) 64 (2004), 343, 346. 13 14

Kolb (note 9), 222.

European Court of Justice (ECJ), Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 2008 ECR I-6351 (Kadi I), para. 285; reaffirmed in Court of Justice of the European Union (CJEU), Joined Cases C-584/10 P,

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This understanding renders Article 103 UN Charter also inapplicable to EU fundamental rights.15 By extending the traditional dichotomy between international and national law to the relationship between international and EU law, the ECJ seems to have ‘cut out’ EU fundamental rights from the scope of Article 103 UN Charter. From the UN perspective, it is still unclear whether it is permissible to safeguard regional human rights instruments against Article 103 UN Charter by simply declaring them ‘non-international’ agreements. We will now turn to those human rights instruments whose character as ‘international agreements’ in the sense of Article 103 UN Charter is uncontested. As to the establishing phase, it is unlikely that any previous UNSC resolutions bind the Member States in their decision to establish a new sanctions regime. Hence, the UNSC and its members merely have to meet their obligations under “primary UN law,” i.e. the UN Charter. Article 33 UN Charter contains a broad obligation to pacific dispute settlement. Article 24 UN Charter vests the primary responsibility to maintain international peace and security in the UNSC. Furthermore, Article 48 UN Charter obliges UN Member States to execute all “action required to carry out the decisions of the Security Council” (paragraph 1) and to carry out these decisions both “directly and through their actions in the appropriate international agencies of which they are members” (paragraph 2).16 The Charter thus imposes only broad obligations – it leaves ample discretion as to the choice of means by which these obligations are to be fulfilled. Hence, in most instances, UN members that are parties to human rights treaties will be able to fulfil their obligations in a ‘human rights-friendly’ manner, i.e. they will be able to discharge their Charter obligations in a way which is reconcilable with their human rights obligations. A conflict of obligations as required by Article 103 UN Charter will only arise in extreme cases of disregard for the aim of international peace and security as such. Turning to the listing phase, we face a more detailed and dense web of obligations. These encompass in particular obligations under applicable UNSC resolutions, which all Member States must carry out according to Articles 25 and 48 UN CharC-593/10 P and C-595/10 P, Commission and Others v. Yassin Abdullah Kadi (Kadi II), paras. 65 et seq., available via: http://curia.europa.eu/juris/liste.jsf?language=de&num=C-402/05 (accessed on 24 January 2015). 15

Kolb (note 9), 137 et seq.

16

Ibid., 99.

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ter.17 Whenever there is a conflict between an obligation under a UNSC resolution and human rights, Article 103 UN Charter gives precedence to the former. Yet, in many cases, the UNSC ‘encourages’ rather than obliges the States to designate individuals for listing.18 In these situations, in the absence of an obligation to designate, Article 103 UN Charter does not apply. At first sight, the consequence is that States can entirely refrain from designating individuals if their respective human rights obligations so require. Most likely, conflicts between obligations will appear in the implementation phase. Still, even detailed resolutions might leave latitude for implementation.19 It is thus crucial to carefully determine the precise scope of those parts of a UNSC resolution that resemble binding obligations. It may also be the case that a resolution obliges the States to adhere to their own human rights obligations20 – in this case the UN and human rights perspectives simply coincide and any adherence to human rights law will not trigger Article 103 UN Charter. Nevertheless, where no latitude and no reference to human rights exist, the obligation to implement the sanctions will prevail. Yet, the precedence accorded to obligations under UN law over human rights has been contested. Some authors argue in favour of a teleological reduction of Article 103 when it comes to a conflict of Charter obligations and human rights.21 Considering the growing powers of the UNSC, a restrictive interpretation of Article 103 UN Charter is a means to limit its powers. However, the clear wording of Article 103 UN Charter referring to “any other international agreement” indicates that no exception to the primacy of UN obligations was intended. Besides, a modified understanding of Article 103 UN Charter through means of dynamic treaty interpretation lacks State practice.22

17

International Court of Justice (ICJ), Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, 3, para. 42; ibid., para. 39. 18

E.g. SC Res. 1970 of 26 February 2011, para. 23; SC Res. 2083 of 17 December 2012, para. 10.

19

Cf. ECtHR, Nada v. Switzerland, Judgment of 12 September 2012, paras. 195–197, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 19 December 2014). 20

E.g. SC Res. 2178 of 24 September 2014, para. 5.

21

Hans-Georg Dederer, Die Architektonik des europäischen Grundrechteraumes, ZaöRV 66 (2006),

575. 22

Kolb (note 9), 201.

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Other approaches to reduce the impact of Article 103 UN Charter suggest a “presumption of conformity” or a “harmonious interpretation.”23 They are based on the assumption that the Charter does not intend to cause a conflict with human rights obligations but rather aims at coherence among the different branches of applicable international law.24 Following this reasoning, the UN Charter and UNSC resolutions must be interpreted in a way avoiding norm conflicts with human rights provisions and therefore minimising the impact of Article 103 UN Charter.25 In other words, obligations arising from the UN Charter or UNSC resolutions should be interpreted ‘in the light of’ human rights guarantees. This would arguably resemble a contextual interpretation pursuant to Article 31 (3)(c) Vienna Convention on the Law of Treaties (VCLT).26 Since the UN Charter itself prominently embodies the promotion of human rights as a purpose of the UN (Article 1 (3) UN Charter) and in several other provisions,27 such a human rights-friendly approach finds at least some resonance within the Charter text. We beg to differ from the view of Robert Kolb, who argues that such an understanding would arguably result in an interpretation against the intention of the UNSC or any other UN body.28 In our opinion this will rather be an interpretation that aims at “practical concordance.”29 Still, when trying to adopt such an approach, it remains difficult to determine the proper human rights standard which would have to be a common standard for all UN members.30 Depending on which human rights treaties UN members are a party to; their human rights obligations might substantially differ. Because of the pacta tertiis rule (Article 34 VCLT, see also Article 41 VCLT), human rights treaties concluded by a (however large) number of UN members cannot legally alter the scope of their obligations under the UN Charter, at least vis à vis other members who are not par23

ECtHR, Al-Jedda (note 12), para. 102; the same reasoning can be found, e.g., in: id., Nada (note 19), para. 170. 24

Id., Al-Jedda (note 12), para. 101.

25

Kolb (note 9), 125 et seq.

26

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

27

Art. 13 (1), Art. 55 (c), Art. 62 (2), Art. 68, Art. 76 (c) UN Charter.

28

Kolb (note 9), 129.

29

For the concept of practical concordance (Praktische Konkordanz) cf. Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 41, 29, 51; 77, 240, 255; id. 81, 298, 308. 30

Dederer (note 21), 605 et seq.

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ties to the same human rights treaty. It is thus doubtful if an interpretation of UN law ‘in the light of’ human rights could have recourse to any higher standard than the standard of universal customary international law.31 To circumvent this problem, one could possibly interpret Charter obligations ‘in the light’ of those human rights treaties which are applicable in the respective case. It would then be necessary to determine the degree to which UN obligations are limited by human rights for each Member State separately. However, such a solution lacks State practice and bears the danger of creating tailor-made (and thus differing) obligations under UN law for each member. As a result, while the UN Charter refers to human rights in broad terms, it seems largely indifferent towards the UN members’ specific human rights treaty obligations. If members choose to carry out their UN obligations in a particularly human rightsfriendly manner, this is consistent with, but not required by the Charter. Explicit obligations to adhere to human rights treaties can arise under UNSC resolutions; indeed, reference to human rights law appears to have increased in recent years.32 However, where UN law leaves no latitude for human rights-friendly conduct, Article 103 UN Charter renders the conflicting human rights guarantees inapplicable. Only in cases where a Charter provision or UNSC resolution provides for interpretative latitude, the possibility of human rights-friendly interpretation exists. Thus, if a State is obliged by a pertinent human rights treaty to discharge its obligations in a human rights-friendly manner, this is permissible, but not required from the perspective of UN law, as long as that State recognises the limits that primary or secondary UN law may impose.

31 Eckard Klein, International Sanctions from a Human Rights Law Perspective: Some Observations on the Kadi Judgment of the European Court of Justice, International Human Rights Law Review 4 (2009), 111, 113. 32

Cf. SC Res. 2178 of 24 September 2014, para. 5.

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IV. The Human Rights Perspective Targeted sanctions can potentially affect a wide range of human rights. The frequently-employed asset freezes can affect the right to property.33 Travel bans can restrict the right to free movement34 and, in extreme cases, the right to personal freedom.35 Insufficient information and lack of access to judicial review can infringe a number of procedural rights.36 Listings of individuals, leading to the online publication of their full names, might also conflict with the right to honour and reputation.37 The human rights perspective raises a number of complex questions. We will first address the topic of attribution of conduct, with particular regard to the requirement of ‘jurisdiction’ (A.). Subsequently, we will explore the nature and scope of human rights obligations (B.).

A. Attribution of Conduct and the Jurisdiction Requirement

For a UN Member State‘s human rights obligations to apply to conduct in the establishing and listing phases, this conduct must be attributable to that State. Many human rights regimes supplement or modify the general rules of attribution established under customary international law, as an example of which we will address the requirement of ‘jurisdiction.’

33 As provided by Art. 17 Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948 (UDHR) and Art. 1 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS No. 009 (Protocol 1 ECHR). 34 Pursuant to Arts. 12, 13 (2) UDHR, Art. 12 II, III ICCPR, Art. 2 (2), (3) 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. 046 (Protocol 4 ECHR). 35

Art. 3 UDHR, Art. 9 ICCPR, Art. 5 ECHR.

36

Arts. 8, 10, 11, 12 UDHR, Art. 14 ICCPR, Art. 6 ECHR.

37

Art. 17 ICCPR.

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1. Whose Act? – Jurisdiction for Acts in International Organisations Human rights treaties unfold their legal effects only in regard to conduct of a legal entity that is a party to the respective treaty.38 Usually, any act “that [the] State [has] a power of effective control over” falls within the scope of a human rights treaty.39 In this regard, the European Court of Human Rights (ECtHR) elaborated on the criterion of jurisdiction pursuant to Article 1 ECHR stating that “Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the Member States’ ‘jurisdiction’ from scrutiny under the Convention.”40 It has been recognised in a number of cases that a State may not absolve itself from any human rights obligations by transferring competences to an International Organisation (IO). The transfers themselves, as well as subsequent conduct within the IO organs, are acts of the participating States that must be consistent with applicable human rights obligations. This rule has been described as ‘no escape into an International Organisation’ and resonates especially in the jurisprudence of the European Commission on Human Rights (ECommHR) and the ECtHR.41 In its 1999 decision in Matthews v. The United Kingdom, the ECtHR stated explicitly that the responsibility of ECHR parties continues even after the transfer of competences to an IO.42 The applicant claimed a violation of her right to vote for the European Parliament (Article 3 Protocol 1 ECHR) by the 1976 Direct Universal Suffrage Act,43 which led to the exclusion of Gibraltan residents from the European 38

Cf. Art. 1 ECHR.

39

ECtHR, Matthews v. The United Kingdom, Judgment of 18 February 1999, RJD 1999-I, 251, para. 26 – decision not to register the applicant as a voter on the basis of an EC treaty. 40 Ibid., para. 29 (see id., United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January 1998, RJD 1998-I, 17, 18, para. 29). 41

European Commission on Human Rights (ECommHR), M. & Co. v. Federal Republic of Germany, Decision of 9 February 1990, App. No. 13258/87, Decisions and Reports (DR) 64, 138; id., Heinz v. The Contracting State Party to the European Patent Convention insofar as they are High Contracting Parties to the ECHR, Decision of 15 October 1992, App. No. 21090/92; id., Reber, Reber Systematik GmbH and Kinkel v. Germany, Decision of 12 April 1996, App. No. 27410/95; ECtHR, Waite and Kennedy v. Germany, Judgment of 18 February 1999, RJD 1999-I, 393 – denial of access to the German courts. 42 43

ECtHR, Matthews (note 39), para. 32.

Act Concerning the Election of the Members of the European Parliament by Direct Universal Suffrage, Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976, OJ 1976 L 278, 1.

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elections. The respective provisions had been proposed by the Council of the European Economic Community (EEC) in its Decision 76/787.44 On the issue of jurisdiction, the Court held that “[t]he Council Decision and the 1976 Act […] all constituted international instruments which were freely entered into by the United Kingdom.”45 Applying this reasoning to the situation of targeted sanctions implies that even if the UNSC generally holds the power to adopt these sanctions, the UNSC Member States still retain jurisdiction over the acts of their agents preceding the adoption of that resolution. The ECtHR in its Matthews judgment did not clarify which particular act of the United Kingdom was responsible for the violation of Article 3 Protocol 1 ECHR.46 It seems to have focused primarily on the conclusion of the 1976 Act, an international treaty, and not so much on the preceding Council decision, i.e. an act of EC secondary law (Article 288 TFEU).47 Still, the ECtHR apparently did not intend to differentiate between the United Kingdom’s conduct in the EEC Council and its subsequent treaty ratification. It was in the Boivin decision that the ECtHR provided for the first time a synthesis of its previous case law on jurisdiction which has been deemed a “general rule” to identify a relevant act of State.48 In Boivin, the applicant had brought a case against his employer, the European Organisation for the Safety of Air Navigation (Eurocontrol), before the International Labour Organization’s Administrative Tribunal (ILOAT). After the ILOAT had dismissed his claim, the applicant brought a case against Eurocontrol members France and Belgium before the ECtHR, claiming a violation of certain procedural rights by the ILOAT. On the question of jurisdiction, the ECtHR held: The Court would point out that the impugned decision […] emanated from an international tribunal outside the jurisdiction of the respondent States, in the context of a labour dispute that lay entirely within the internal legal order of Eurocontrol, an international 44

Ibid., para. 18.

45

Ibid., para. 33.

46

Jürgen Bröhmer, Die Bosphorus-Entscheidung des Europäischen Gerichtshofs für Menschenrechte: Der Schutz der Grund- und Menschenrechte in der EU und das Verhältnis zur EMRK, Europäische Zeitschrift für Wirtschaftsrecht 2006, 71, 74, considers only the conclusion of the Treaty (Annex II) as a relevant act. 47 Treaty on the Functioning of the European Union, 26 October 2012, OJ 2012 C 326, 47 (consolidated version 2012) (TFEU). 48

Cornelia Janik, Die EMRK und Internationale Organisationen, ZaöRV 70 (2010), 127, 151 et seq.

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organisation that has a legal personality separate from that of its member States. At no time did France or Belgium intervene directly or indirectly in the dispute, and no action or omission of those States or their authorities can be considered to engage their responsibility under the Convention.49

Drawing a conclusion e contrario, the underlying rationale of Boivin appears to be that whenever there is a State nexus, i.e. a distinct act or omission of the State, this act falls under the scope of the ECHR.50 Such a distinct sovereign act is any measure of implementation but also the participation in a voting procedure or a listing or delisting proposal. Thus, a State’s vote in favour of a sanctions regime or a listing/delisting proposal falls under the ECHR (and other applicable human rights treaties) to the same extent as the implementing act, e.g. the freezing of financial assets. The Boivin rule leaves room to review State acts under the ECHR, regardless of whether these acts belong to the establishing phase, the listing phase, or the implementation phase.51 Although the genesis of the Boivin ruling has raised questions,52 the ruling has become established case law.53 The requirement of a State nexus means States can be held responsible under human rights regimes for their voting behaviour within IOs as well as for other direct or indirect acts or omissions like listing proposals, the omission of delisting proposals within a sanction regime, or acts of implementation. In Nederlandse Kokkelvisserij, the Court even suggested that in the case of an applicant’s 49 ECtHR, Boivin v. 34 Member States of Council of Europe, Decision of 9 September 2008, RJD 2008-IV, 225. 50

Janik (note 48), 129.

51

See Andreas von Arnauld, Das (Menschen-)Recht im Auslandseinsatz: Rechtsgrundlagen zum Schutz von Grund- und Menschenrechten, in: Dieter Weingärtner (ed.), Streitkräfte und Menschenrechte (2008), 61, 77, who argues that State representatives are bound by national constitutional law and human rights in international negotiations; see also George Ress, Menschenrechte, europäisches Gemeinschaftsrecht und nationales Verfassungsrecht, in: Herbert Haller (ed.), Staat und Recht: Festschrift für Günther Winkler (1997), 897, 920. 52 53

Janik (note 48), 153.

ECtHR, Bernard Connolly v. 15 Member States of the European Union, Decision of 9 December 2008, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-90864 (accessed on 24 January 2015); id., La societe Etablissements Biret et Cie S.A. et la societe Biret International v. 15 Member States of the European Union, Decision of 9 December 2008, para. 1, available at: http://hudoc.echr. coe.int/sites/eng/pages/search.aspx#{%22appno%22:[%2213762/04%22],%22itemid%22:[%2200190863%22]} (accessed on 24 January 2015); id., Rambus Inc. v. Germany, Decision of 16 June 2009, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-93430 (accessed on 24 January 2015).

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complaint concerning the impermissibility of submitting a response to the opinion of the Advocate General prior to the handing down of the judgment by the ECJ (Article 6 (1) ECHR), the decision of a national court to refer the case to the ECJ in the preliminary ruling procedure is a direct intervention of the State that triggers the applicability of the Convention.54 The applicant initially alleged a violation by the Netherlands as well as by the European Communities (EC), more specifically the ECJ in Luxembourg. The applicant did not succeed against the EC as the latter was not a member of the ECHR. However, the Court accepted the possibility of the Netherlands’ responsibility even though the impugned decision had been handed down by the ECJ. The Court reasoned that the intervention by the ECJ had been actively sought by a domestic court in proceedings pending before it. Hence, it could not be said that the respondent party was "in no way involved" in the sense of Boivin. Even if the direct act that leads to a violation of the ECHR originates from an IO, the State which took part in the decision making (Matthews) or made the violation otherwise possible (Nederlandse Kokkelvisserij), or could have prevented that violation55 can still be held responsible. Two issues must be addressed in the context of the UN. Firstly, the UN Charter was adopted before most major human rights treaties. Prima facie, this renders the general rule that the ECHR needs to be respected when establishing an IO by international treaty inapplicable, at least insofar as the establishment of the UN itself is concerned. Secondly, in relation to UNSC resolutions, we are dealing with acts of secondary law, i.e. norms adopted by an organ of the UN, unlike the creation of an IO. As to the first issue, as stated above, the ECtHR argues that the responsibilities of Member States continue even after the transfer of competences to an IO.56 It is typically not the UN Charter that collides with human rights, but the specific obliga54

Id., Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. The Netherlands, Decision of 20 January 2009, RJD 2009-I, 175, paras. B. 2, 3. 55 Court of Appeal in The Hague (Gerechtshof’s-Gravenhage), Mehida Mustafić-Mujić et al. v. The Netherlands, Judgment of 5 July 2011, available at: http://uitspraken.rechtspraak.nl/inziendocument? id=ECLI:NL:GHSGR:2011:BR5386 (accessed on 24 January 2015); ECtHR, Ilaşcu et al. v. Moldova and Russia, Judgment of 8 July 2004, RJD 2004-VII, 1, para. 313; Thomas Giegerich, Verantwortlichkeit für Akte internationaler und supranationaler Organisationen, Zeitschrift für vergleichende Rechtswissenschaft 104 (2005), 163, 185. 56

ECtHR, Matthews (note 39), para. 32.

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tions under UNSC resolutions. Whereas the UN Charter preceded any relevant international human rights treaty, the dynamic and evolutionary development of UNSC powers, culminating in directly targeting individuals, and even containing abstract and general rules and therefore fulfilling legislative functions,57 occurred only after the ECHR, the UN Covenants, and many other human rights regimes entered into force. This factual shift in the handling of UNSC competences could mitigate reliance on the date of formal treaty conclusion. Thus, in our view, human rights provisions are of relevance at least to such far-reaching developments of the UN collective security system by the UNSC and State practice, even if no formal Charter revision has taken place. The Court of Justice of the European Union (CJEU), for its part, does not seem to give relevance to the fact that the ‘autonomous’ EU legal order was only established after the entry into force of the UN Charter.58 As to the second issue, the wording of Article 1 ECHR makes no distinction as to the type of rule or measure.59 The ECHR therefore does not preclude the responsibility of Member States also in the context of secondary IO law. Moreover, the ECtHR does not appear to have differentiated between primary and secondary law in Matthews and Boivin nor in subsequent cases. This result can also not be called into question by the findings of the ECommHR in Ilse Hess v. United Kingdom and in C.F.D.T. In Ilse Hess v. United Kingdom, the ECommHR held that the authority by the Allied Kommandantura over post-war Berlin was exercised jointly by the quadripartite administration and could thus not be considered “within the jurisdiction” of the United Kingdom.60 The Commission’s findings refer to authority exercised based on a decision taken by the Kommandantura rather than the United Kingdom’s behaviour leading to that decision. Further, in C.F.D.T., the ECommHR takes the view that the complaint that was inter alia directed against eight Member States of the EC was outside of its jurisdiction ratione personae “since these States by taking part in the decision of the Council of the European 57 Georges Abi-Saab, The Security Council as Legislator and as Executive in its Fight Against Terrorism and Against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy, in: Rüdiger Wolfrum/Volker Röben (eds.), Legitimacy in International Law (2008), 109–130. 58

ECJ, Kadi I (note 14).

59

ECtHR, Matthews (note 39), para. 29.

60

ECommHR, Ilse Hess v. The United Kingdom, Decision of 28 May 1975, App. No. 6231/73. DR 2, 72 (74).

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Communities had not in the circumstances of the instant case exercised their ‘jurisdiction’ within the meaning of Article 1 of the Convention.”61 Beside the fact that the ECommHR departed from its findings twelve years later,62 both decisions do not address an important distinction: A decision of an international body cannot be equated with the prior steps taken to reach that decision, as the latter, at least in political bodies such as the UNSC, remains under the prerogative and exclusive control of the respective body members.63 Despite the context of an IO’s decision making procedure, the State holds effective control over the actions of its representatives. Absolving the Member States of human rights regimes from their obligation when they act in the organs of an IO would allow an ‘escape into an IO.’ In political organs in which State representatives act according to instructions of their home governments and not in the capacity of an expert, like international judges or a Special Representative of the UN, they commit sovereign acts of State. Hence, whereas the adopted resolution is an act taken by the UNSC as an organ of the UN and the resolution as such is attributable to the UN (Article 6 Draft Articles on Responsibility of International Organizations (DARIO)),64 a member’s vote, though cast in the context of Council procedure, is still an act of that member. In its Behrami decision65 the ECtHR made a special case for attribution within the context of the UN and multilateral military interventions. Here the Court denied the respondent States’ jurisdiction ratione personae, exclusively attributing the acts of Kosovo Force (KFOR) and the United Nations Interim Administration Mission in Kosovo (UNMIK) to the UN. The Court based this exclusive attribution on the special character of the UN as “an organisation of universal jurisdiction fulfilling its imperative collective security objective.”66 The Behrami decision was, with good reason, wide-

61 Id., C.F.D.T. v. European Communities, Decision of 10 July 1978, App. No. 8030/77, DR 13, 231, para. 7. 62

Id., M. & Co (note 41).

63

Schilling (note 12), 345 et seq.

64

Report of the International Law Commission (ILC), Draft Articles on the Responsibility of International Organizations, GAOR, 66th Sess., Suppl. 10, UN Doc. A/66/10, 54 et seq. (DARIO). 65 ECtHR, Behrami and Behrami v. France and Saramati v. Germany, France and Norway, Decision of 2 May 2007, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-80830 (accessed on 24 January 2015). 66

Ibid., para. 151.

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ly criticised67 and the subsequent Al-Jedda judgment can be read as leaving room for a dual attribution in the context of multilateral interventions.68 Even if one were to follow the ECtHR’s reasoning in Behrami, the case of targeted sanctions must be distinguished from the Behrami situation. Behrami concerned the conduct of UN peacekeeping troops, whose powers had, in the Court’s view, been delegated to it by the UNSC. By contrast, the ECtHR emphasised in Al-Dulimi and Montana Management Inc. v. Switzerland that acts implementing sanctions are attributable to the UN Member States, as UNSC resolutions concerning targeted sanctions require States to implement the sanctions “in [their] own name.”69 A fortiori, votes and listing or delisting proposals are also attributable to the UN Member States: Neither did the UN “delegate” the power to vote or designate individuals to the UN members, nor do the latter act “in the name” of the UN. Thus, the Berahmi rule does not apply in our case. In conclusion, a State may therefore exercise jurisdiction by acting through his agents even when cooperating with an IO.70 The conduct of a State’s representative’s within an organ of an IO has to be carefully distinguished from acts of that organ. Generally, the latter is attributable to the IO and not to one of its Member States.71 67

Marko Milanović/Tatjana Papić, As Bad as It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law, International and Comparative Law Quarterly 58 (2009), 267. 68

von Arnauld, Völkerrecht (note 7), 164. In favour of dual attribution in general: ILC, Second Report on Responsibility of International Organizations, by Giorgio Gaja, Special Rapporteur, UN Doc. A/CN.4/541 (2004), para. 6; Court of Appeal in The Hague, Hasan Nuhanović v. The State of the Netherlands, Judgment of 5 July 2011 para. 5.18, available at: http://uitspraken.rechtspraak.nl/ inziendocument?id=ECLI:NL:GHSGR:2011:BR5388&keyword=Hasan+Nuhanovi%C4%87 (accessed on 24 January 2015); André Nollkaemper, Multilevel Accountability: A Case Study of Accountability in the Aftermath of the Srebrenica Massacre, in: Tomer Broude/Yuval Shany (eds.), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity: Essays in Honour of Ruth Lapidoth (2008), 345; Andreas von Arnauld/Sinthiou Buszewski, Modes of Legal Accountability: The Srebrenica Example, Friedenswarte 88 (3) (2013), 15, 28. 69 ECtHR, Al-Dulimi and Montana Management Inc. v. Switzerland, Judgment of 26 November 2013 (referred to the Grand Chamber on 14 April 2014), para. 90, available at: http://hudoc.echr.coe. int/sites/eng/pages/search.aspx?i=001-138948 (accessed on 24 January 2015). 70 Milanović/Papić (note 67), see also Volker Röben, Grundrechtsberechtigte und -verpflichtete, Grundrechtsgeltung, in: Oliver Dörr/Rainer Grote/Thilo Marauhn (eds.), EMRK/GG Konkordanzkommentar (2nd ed. 2013), 278, para. 140, referring as an example to Art. 16 (2) cl. 2 German Basic Law (Grundgesetz), 23 May 1949, BGBl. I, 1, most recently amended by the Law Amending the Basic Law (Gesetz zur Änderung des Grundgesetzes) of 11 July 2012, BGBl. 1, 1478. 71

Art. 6 DARIO.

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This means that, once a draft has passed the IO’s decision-making procedure and an act of the organ of the IO is eventually adopted, we are dealing with an act of that IO. Nevertheless, the acts leading to the adoption of the draft (e.g. voting) and the acts implementing or executing the IO’s decision, may well be attributable to the Member States. Applying this rule to our question, a UNSC Member State commits a sovereign act of State when participating in the UNSC in the establishing phase, when proposing names in the listing phase, and when implementing targeted sanctions.

2. Jurisdiction and Extraterritoriality The current sanctions regimes are designed for worldwide application and implementation in all UN Member States. This raises the question of whether acts in the establishing and listing phases are therefore to be deemed extraterritorial, as they have a worldwide effect. The issue of extraterritorial jurisdiction has arisen in a number of cases.72 The ECtHR considers ‘jurisdiction’ to reflect the term’s meaning under public international law and thus to be “primarily territorial.”73 Still, the Court accepts extraterritorial application of the ECHR for State conduct on the territory of a third State,74 if the State party to the Convention has control and authority over a person75 or effective control over foreign territory.76 If we were to apply these criteria to our case, we would easily find that no ECHR signatory participating in the establishing and listing phases has control and authority over all individuals potentially affected by the sanctions or effective control over the territory of all UN Member States. Hence, we would have to conclude that a State participating in the establishing and listing phases does not have extraterritorial jurisdiction over most parts of the world and is

72

See, for example, ECtHR, Al-Skeini and Others v. The United Kingdom, Judgment of 7 July 2011, RJD 2011-IV, 99, 130–142. 73 Id., Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, Judgment of 30 June 2005, RJD 2005-VI, 107, para. 136. 74

Cf. id., Al-Dulimi and Montana Management Inc. (note 69), para. 89.

75

ECtHR, Al-Skeini (note 72), 137.

76

Ibid., 138.

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hence not responsible for any human rights violations resulting from its conduct in the UNSC in the relevant parts of the world. However, the aforementioned criteria for extraterritorial jurisdiction are not applicable here. As the ECtHR itself has pointed out, limiting jurisdiction to a State’s territory reflects the classic concept of State sovereignty being confined to a State’s territory.77 Following the Court’s reasoning in Banković, the ratio behind this seems to be the proper allocation of responsibility among the Convention States on the one hand and third States on the other.78 However, neither in the establishing nor in the listing phase, is there a comparable need to coordinate responsibilities for mutually exclusive spheres of State jurisdiction. As to State conduct in the establishing phase, it is crucial to recall that international law confers on every UNSC Member State the power to participate in the drafting of UNSC resolutions. This power does not emanate from the UNSC Member States’ (territorial) sovereignty, but from their position as UNSC members with universal regulatory power given to them pursuant to the relevant Charter provisions. By virtue of international law, UNSC members are the (only) entities competent to participate in establishing sanctions regimes. They are intended to draft resolutions that also apply in third States. Accordingly, contrary to the rationale of the extraterritoriality criteria, there is no need to allocate responsibilities between UNSC members and other States here, but rather a need to ensure that human rights are sufficiently respected when this ‘joint universal jurisdiction’ is exercised by UNSC members. As to the listing phase, the power to make listing or delisting proposals is not limited to some UN members. Yet, there is still no need for allocation of responsibility using the criteria of effective control over persons or territory, even if the designated individual is not on the territory of a Convention State: By making listing or delisting proposals, a State does not infringe on the sphere of exclusive jurisdiction of another State. In addition, unlike the situation where a State exercises control over foreign territory, there are no difficulties in the proper allocation of responsibility for human rights infringements, as it is easy to determine which State is responsible for a listing/delisting proposal. 77 78

Id., Bosphorus (note 73), 136.

See id., Bankovic and Others v. Belgium and Others, Decision of 12 December 2001, RJD 2001XII, 333, paras. 59 et seq.

526 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 B. Nature and Scope of Human Rights Obligations in the Establishing and Listing Phases

Having addressed the issue of jurisdiction, we must now define the nature and scope of human rights obligations in the establishing and listing phases. It is important to recall that an actual violation can occur at different stages of the sanctioning process: For example, an asset freeze might only violate the addressee’s right to property when the assets are seized during the implementation phase. By contrast, the right to one’s honour and reputation can be affected before the implementation phase, at the moment an individual’s name appears on the publicly accessible sanctions lists.79 In the following section, we will propose an overview of what might potentially be required under human rights instruments in the establishing and listing phases, leaving a more case-specific analysis to future research. We will first revisit the general obligation to give effect to human rights (1.) and the duty to ensure an equivalent level of protection of human rights when cooperating within an international organisation (2.). As the installation of a fully-fledged human rights review mechanism at UN level does not appear realistic in the near future, we will continue by addressing possible avenues for States to avoid responsibility under the equivalent protection rule (3.) and by sketching how a State could act to ensure conformity (4.). Subsequently, we will focus on three further issues: First, we will examine the case where a State striving to ensure human rights is outvoted by other UNSC members (5.). We will then turn to the question whether and to what extent human rights should limit a State’s conduct in a political body such as the UNSC (6.) and how far a State must go in order to give effect to human rights in the establishing and listing phases (7.).

1. Respect and Ensure: The Obligation to Give Effect to Human Rights Under human rights regimes, States are under a treaty obligation to give effect to human rights. For example, under Article 1 ECHR, the parties are obliged to “secure” 79

See the Consolidated UNSC Sanctions List, available via: http://www.un.org/sc/committees/ list_compend.shtml (accessed on 14 January 2015); Human Rights Committee (HRC), Nabil Sayadi and Patricia Vinck v. Belgium, Decision of 22 October 2008, UN Doc. CCPR/C/94/D/1472/2006 (2008), paras. 10.12 et seq.

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human rights, and Article 2 (1) ICCPR for its part obliges parties to “respect and to ensure” human rights. Under these provisions, States have a duty to refrain from interferences and additionally a "positive obligation" to actively protect human rights.80 The positive obligation is, in principle, an obligation of result, i.e. if there is more than one means that is suitable to effectively protect human rights; the choice between them is left to the discretion of the State. It is important to underline, however, that the means of choice must be effective. In addition, States are under a general obligation not to entirely frustrate the object and purpose of their human rights obligations.81 While details may vary, States, including all their organs and representatives, must fulfil this obligation in good faith (Articles 26 and 27 VCLT).82 In principle, a violation of these obligations can be brought before a human rights review mechanism, such as the ECtHR. Yet, at least before the listing of individuals and the implementation of sanctions, an individual complaint will in many cases be inadmissible due to a lack of ‘victim status’ (See e.g. Article 34 ECHR). Furthermore, it is conceivable that conduct leading to a resolution that frustrates human rights guarantees may be brought before a human rights body through interstate litigation even before the sanctions are fully implemented.83

2. The Equivalent Protection Rule The obligation to ensure human rights remains relevant in the context of international cooperation through international institutions. In M. & Co v. Germany, the ECommHR held that the ECHR does not prevent a State from transferring powers to an international or supranational organisation by way of conclusion of a treaty, provided that there is an equivalent level of human rights protection to prevent States 80

E.g. ECtHR, Öneryildiz v. Turkey, Judgment of 30 November 2004, RJD 2004-XII, 79, para. 135; id., Ilascu et al. v. Moldova and Russia (note 55), para. 313. 81

Mutatis mutandis: ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 142; Kirsten Schmalenbach, Art. 26, in: Oliver Dörr/Kirsten Schmalenbach (eds.), Vienna Convention on the Law of Treaties: A Commentary (2012), 427, 446. 82 ICJ, Gabčíkovo-Nagymaros Project (note 81) para. 142; Human Rights Committee (HRC), General Comment No. 31: The 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) para. 3; Schmalenbach (note 81). 83

E.g. under Art. 33 ECHR.

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from evading their obligations under the ECHR.84 If no such protection is provided, the Convention States remain responsible.85 The equivalent protection rule was confirmed by the ECtHR in Waite and Kennedy v. Germany,86 Matthews v. UK,87 and extended to the enactment of secondary law by the EC in Bosphorus.88 In its 2013 decision in Al-Dulimi, a case where the relevant UNSC Resolution 1483 (2003)89 did not leave latitude for implementation, the ECtHR applied the equivalent protection rule to a UN sanctions regime. It took the view that: the presumption of equivalent protection is intended, in particular, to ensure that a State Party is not faced with a dilemma when it is obliged to rely on the legal obligations incumbent on it as a result of its membership of any international organisation which is not party to the Convention […]. As illustrated by the present case, a State may face such a dilemma not only as a result of its membership of the European Union, as a supranational organisation with a European vocation, but also as a Member State of the United Nations.90

The ECtHR concluded that the Focal Point for De-listing established by Resolution 1730 (2006) did not provide an equivalent level of protection as required by the ECHR.91 The Court thus rightly sided with those who had previously criticised the lack of equivalent protection.92 At present, however, it seems unlikely that a system providing an equivalent level of human rights protection will be installed at UN level in the near future. It should be added that, in cases where obligations under the UNSC resolution are binding and do not leave latitude, domestic or regional review mechanisms cannot sufficiently remedy this lack of equivalent protection mechanisms at 84

ECommHR, M. and Co. (note 41), para. 144.

85

See ECtHR, Matthews (note 39), paras. 32 et seq.; outside IO context, see also id., Al-Saadoon v. The United Kingdom, Judgment of 2 March 2010, RJD 2010-II, 61 128, 139; Röben (note 70), 277. 86

Id., Waite and Kennedy (note 41), para. 67.

87

Id., Matthews (note 39), para. 32 et seq.

88

Id., Bosphorus (note 73), para. 152; Bröhmer (note 46), 74.

89

SC Res. 1483 of 22 May 2003.

90

ECtHR, Al-Dulimi and Montana Management Inc. (note 69), para. 116.

91

Ibid., para. 118. See also id., Nada (note 19), paras. 211 et seq.; Andreas von Arnauld, Der Weg zu einem Solange I 1/2, Europarecht 48 (2013), 236, 237; de Wet (note 11), 787, 789 et seq. 92 ECtHR, Al-Dulimi and Montana Management Inc.(note 69), 118; UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Report of 26 September 2012, UN Doc. A/67/396 (2012), para. 59.

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UN level, as they can neither change the sanctions regime nor order the delisting of sanctioned individuals.93 States parties to the ECHR who participate in the establishing and listing phases should thus be aware that they are likely to remain responsible under the Convention for not ensuring equivalent protection.

3. Potential Avenues: Adopting Human Rights Clauses or Leaving Latitude Whereas it might arguably prove difficult to provide for adequate judicial review at UN level, there are alternative avenues for States to avoid responsibility under human rights treaties. Arguably the safest way for UNSC members is to incorporate an explicit human rights clause into the UNSC resolution. For example, Resolution 2178 (2014), operative clause 5 requires the UN Member States to counter support for terrorism “consistent with international human rights law, international refugee law, and international humanitarian law.”94 Such a clause would arguably only require every UN Member State to implement sanctions as far as their respective human rights obligations allow. More precise language, recognising potential differences in applicable human rights standards, was used in Resolution 2178 (2014), preambular clause 7, where the UNSC reaffirmed that the Member States, when countering terrorism, must “comply with all their obligations under international law, in particular international human rights law […].”95 As explicit human rights clauses could face opposition in the UNSC, a less troublesome avenue might be available in the establishing phase. UNSC resolutions that leave latitude for human rights-friendly implementation could be adopted: In many cases, acts in the establishing phase will not immediately lead to violations of human rights guarantees, as they depend on subsequent concretisation by the UN Member States, through listing proposals and implementation. In the establishing phase, UNSC members usually merely create rules concerning the subject matter of the respective sanctions. As to the personal scope of the sanctions, UNSC resolutions typi-

93

de Wet (note 11), 805.

94

SC Res. 2178 of 24 September 2014, para 5.

95

Ibid., Recital 7 Preamble (emphasis added).

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cally leave the ‘individualisation’ to the respective Sanctions Committees in the listing phase and confine themselves to abstract descriptions of targeted persons.96 In its judgment in Nada v. Switzerland, the ECtHR implies that in the implementation phase, any latitude in the language of UNSC resolutions imposing targeted sanctions must be used to interpret the provisions of the resolution in a human rights-friendly manner.97 The ECtHR refrained from reviewing the UNSC resolution itself. The Court decided that there was room for a human rights-friendly interpretation of the UNSC resolution and that Switzerland had not used this latitude to give effect to human rights guarantees.98 This implies a certain preference for “systemic integration”99 of UN and human rights law. Likewise, in Sayadi and Vinck v. Belgium, the Human Rights Committee found Belgium responsible for a violation of the ICCPR, as it had not used its latitude sufficiently: Belgium had proposed the authors for listing without awaiting the outcome of a criminal investigation and, subsequently, had not done all it could towards delisting.100 If existing latitudes in UNSC resolutions must be interpreted by the implementing Member States in light of their human rights obligations, this will have implications for the establishing phase. This being said, it must be kept in mind that leaving latitude in a resolution’s language can be ambiguous. Depending on which terms and provisions are concerned, open language can have quite a contrary effect, allowing States to misuse a resolution for their own purposes. For example, Resolution 2178 (2014) obliges Member States to take measures against “terrorists,” without any further definition of that term.101 The UNSC 96 E.g. SC Res. 2161 of 17 June 2014, para. 2; SC Res. 1988 of 17 June 2011, para. 1 “[…] and other individuals, groups, undertakings and entities associated with them, as specified in section A (‘Individuals associated with the Taliban’) and section B (‘entities and other groups and undertaking associated with the Taliban’) of the Consolidated List of the Committee established pursuant to resolution 1267 (1999) and 1333 (2000) […]”. 97

ECtHR, Nada (note 19), paras. 180–185. See also id., Al-Jedda (note 12) para. 102.

98

Id., Nada (note 19), paras. 195–197.

99

de Wet (note 11), 787, 806.

100 101

HRC, Sayadi and Vinck v. Belgium (note 79), para. 10.13.

Cf. Martin Scheinin, Zurück zur Post-9/11-Panik? Die Resolution des UN-Sicherheitsrats zu Terrorkämpfern, Verfassungsblog 25 September 2014, available at: http://www.verfassungsblog.de/backpost-911-panic-security-council-resolution-foreign-terrorist-fighters (accessed on 7 October 2014).

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[r]ecalls its decision, in resolution 1373 (2001), that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decides that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense.102

Leaving it to the governments to define against whom, in their eyes, the sanctions should be directed, allows for misuse, potentially resulting in human rights violations of political or other minorities.103 When considering whether to leave latitude in resolutions, States thus face the difficult task of allowing for human rights-friendly implementation on the one hand while minimising the risk of misuse on the other.

4. Pursuing the Avenues: Conduct in the Establishing and Listing Phases What does a State have to do in order to pursue the aforementioned avenues? As to the establishing phase, especially when voting on a resolution establishing (or amending) a sanctions regime, different obligations are conceivable, drawing on the different dimensions of human rights guarantees. In order to comply with the duty to refrain from interferences with human rights, it would be enough to abstain from a vote on a draft resolution that does not provide for adequate human rights protection. However, under the positive obligation to actively protect human rights, a State must proactively prevent a flawed resolution from being adopted. As aforementioned, this obligation of result leaves the choice of means to the State, as long as these means are effective to fulfil the obligation to ensure human rights. A UNSC member can thus choose to vote against the draft or to pursue renegotiation with the aim of drafting a new, human rights-compatible text. Permanent members, for example, the ECHR signatories France, United Kingdom, and Russia, can choose to veto a flawed draft in the event that other States are unwilling to renegotiate. Whether States are prevented from even introducing such a draft to the negotiations is questionable considering that drafts are also opportunities to negotiate and are subject to modifications. In any event, they must refrain from supporting it when it comes to voting.

102

SC Res. 2178 of 24 September 2014, para. 6.

103

Scheinin (note 101).

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This appears far-reaching at first sight. It is important, however, to recall that these obligations are limited: Under the positive obligation to actively protect human rights, States have discretion as to the choice of means as long as they do not defeat the object and purpose of a human rights treaty. A UNSC member would only be responsible in cases where no human rights-friendly implementation of the resolution is possible, neither by giving effect to an explicit human rights clause nor by using latitude. The threshold to establish a violation is therefore remarkably high. In addition, the precise scope of a State’s obligations depends on the rights in question and can thus vary depending on which rights are potentially affected. Regarding the listing phase, every State that intends to designate an individual must ensure that human rights are duly respected. This necessarily includes the State making a prudent advance assessment as to the likelihood of future human rights violations and as to their potential gravity. UNSC resolutions usually only ‘encourage’ States to submit names to the Sanctions Committee.104 Thus, a State must consider in advance the legal framework of the sanctions regime as well as the practice of other States and the Sanctions Committee. If there is a reasonable prospect of disproportionate infringement of human rights, the State is bound to refrain from designation.105

5. Lack of Causation and Sustaining Obligations A further issue in the context of establishing a sanctions regime is whether human rights regimes only oblige a Member State to vote against a proposed sanctions regime if that State has a realistic chance of preventing it. Both in the establishing and listing phases, it may happen that a State is outvoted by others and does not have a veto position. This raises the question of whether a lack of causation can influence the scope of human rights obligations. This issue was discussed by the ECommHR in Ilse Hess v. The United Kingdom, although as an issue of jurisdiction. The Commission held that the continued detention of Rudolf Hess in the Allied Military Prison in Berlin was not under the jurisdiction 104 105

See e.g. SC Res. 1988 of 17 June 2011, para. 11.

For discussion on the use of confidential information see Stephan Hollenberg, The Security Council’s 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review, Leiden Journal of International Law, 2015, vol. 28, 49–71.

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of the United Kingdom. It reasoned that the prison was at all times administered jointly by the quadripartite board of governors of the four Allied powers, which had to take all decisions unanimously (the Soviet governor had persistently refused to release Hess).106 However, the mere fact that other States have a power to veto decisions does not affect the jurisdiction of an outvoted State, which still retains full control over its agents.107 What a State has to do to “ensure” human rights, e.g. whether it has to oppose a decision despite the fact that a majority is supporting it, is not a question of jurisdiction, but of the scope and content of the human rights obligations in the particular case. Drawing on the ECtHR’s decision in Gentilhomme, Schaff-Benhadji and Zerouki v. France, Schilling argues that if a State’s vote has no influence on whether a resolution allegedly violating human rights is adopted, there is no human rights obligation to vote against it.108 Gentilhomme dealt with a declaration signed by France and Algeria in 1962 which provided the right to children with French nationality to attend public French establishments located in Algeria. However, in 1988, the Algerian government declared that no children with Algerian nationality could attend French schools in their country, including children with double nationality. The ECtHR held that the situation was exclusively induced by Algeria who committed a sovereign act within its own territorial jurisdiction, whereas France had no control over that decision. Consequently, the decision of the Algerian government could not be attributed to France and therefore France did not have jurisdiction. Besides the fact that this situation substantially differs from the one in the establishing and listing phases (France did not have a means to influence Algeria’s unilateral declaration), there is no provision in any human rights instrument that puts one State’s obligation to protect human rights under a condition of cooperation by a third State. Also, there is no ‘reciprocity rule’ that allows a State to justify a violation of human rights by arguing that another State is unwilling or unable to adhere to the same human rights standard. In addition, demanding reciprocity would neglect the fact that the source and scope of human rights obligations can vary among UNSC members. As to the ‘efficacy’ of the possible protection by an outvoted UNSC Member, it can hardly be 106

ECommHR, Ilse Hess v. The United Kingdom (note 60), 72, para. 313.

107

von Arnauld, Das (Menschen-)Recht im Auslandseinsatz (note 51), 77; Schilling (note 12), 345 et seq.; for State conduct in the EU Council of Ministers, see ECtHR, Matthews (note 39), para. 33. 108

Schilling (note 12), 343, 348.

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doubted that a veto by one of the permanent members is an effective means against a resolution violating human rights and supported by a majority of UNSC members. As to non-permanent members, it has to be recalled that voting against a resolution may not avoid that resolution, but still can carry political value depending on the respective situation. Furthermore, the obligation to secure human rights is not limited to human rights-consistent voting: An outvoted State has to resort to other available and effective political and legal means to ensure respect for human rights.109 In the listing phase, the decision on listing or delisting proposals are made by the Committee by consensus of its members.110 Nevertheless, each Member State has some means to secure human rights. This is because, firstly, (only) if no objection to a listing or delisting proposal is received by the end of the no-objection period, the decision will be deemed adopted.111 Secondly, as pointed out earlier, there is usually no obligation to make listing proposals. Each State can therefore freely decide if it wishes to designate an individual or not. Under the duty to refrain from infringements of human rights, a State can only make a listing proposal if potential human rights infringements resulting from the designation can be justified. Depending on the particular case, this implies that the State must conduct investigations in advance and respect due process rights of the respective individual. Despite the fact that criminal charges or convictions are not prerequisites for listing from the UN perspective,112 both can be necessary under applicable human rights.113 If another State makes a listing proposal, there can be an obligation to give effect to human rights that demands an objection to the proposal if the individual (or group) affected falls within the jurisdiction of the latter State and the former State

109

Mutatis mutandis: ECtHR, Ilaşcu et al. (note 55), para. 313.

110

Al-Qaida Sanctions Committee, Guidelines of the Committee for the Conduct of its Work, Sec. 4 (a), available via: http://www.un.org/sc/committees/1267/ (accessed on 21 January 2015). 111

Ibid., Sec. 4 (n).

112

Ibid., Sec. 4 (d).

113

Cf. HRC, Nabil Sayadi and Patricia Vinck (note 79), para. 10.13. In these cases, the preventive impetus of the sanctions regime can serve as a justification, but this has to be examined on a case-by-case basis.

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cannot provide sufficient proof for the basis of or justification for the listing.114 In this scenario, every Member State holds ‘suspending power.’ Likewise, every delisting proposal can be objected to by every Member State and consequently will be referred to the UNSC. This, however, does not suspend the general obligation to give effect to human rights that demands making a delisting proposal if sufficient grounds exist to suggest that an individual (or a group) is wrongly listed. First, again, a human rights obligation is not dependent on the cooperation of third States. Second, it will be unpredictable as to whether and why other States may object to a delisting request. As to delisting proposals by third States or the Ombudsperson, the obligation to give effect to human rights requires a State not to object to such a proposal if there is reliable information that any human rights infringements resulting from the listing cannot be justified.

6. Reconciling Political Flexibility and Human Rights Protection The predetermination of decision-making in the UNSC by human rights gives rise to the old question of whether political processes should be ‘regulated’ by law in general, and human rights in particular. In both domestic and international law, a variety of approaches have been developed to address the inherent tension between the need for political flexibility and the necessity of gapless human rights protection. Among those are, inter alia, the political question doctrine115 and the concept of a margin of appreciation.116 The overarching idea of the political question doctrine is that politically sensitive issues should be left to the exclusive sphere of politics. The 114 Al-Qaida Sanctions Committee (note 109), Sec. 4 (h) demands Member States to provide a detailed statement of case in support of the proposed listing that forms the basis or justification for the listing in accordance with the relevant resolutions, including para. 11 of SC Res. 2083 of 17 December 2012. 115 US Supreme Court, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Nada MourtadaSabbah/Bruce E. Cain, The Political Question Doctrine and the Supreme Court of the United States (2007); Mark V. Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, North Carolina Law Review 80 (2002), 1203, 1204; Alexander M. Bickel, The Least Dangerous Branch (1986), 183. 116

Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Human Rights Files No. 17 (2000) available at: http://www.echr.coe. int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17(2000).pdf (accessed on 7 October 2014); Janneke Gerards, Pluralism, Deference and Margin of Appreciation, European Law Journal 17 (2011), 80, 87.

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margin of appreciation concept provides States with discretion regarding the measures used to achieve a certain political aim. Those measures must only meet the requirement of reasonableness. As to the political question doctrine, we share the frequently expressed critique that political and legal questions are not mutually exclusive, especially in the field of human rights.117 The political question doctrine’s ‘all or nothing-approach’ unduly undermines human rights protection by immunising, en bloc, key issues from judicial review. Instead, it seems more promising to allow for political flexibility: Having recourse to margins of appreciation which States retain under their human rights obligations allows the particular circumstances of each case to be taken into account. Still, it is important to recall that a political margin is not an end in itself. Permitting discretion serves the aim of enabling States to remain capable of cooperating internationally. Hence, any margin must be strictly tied to the necessities of that goal.118 Moreover, the possibility of granting margins may differ depending on the particular right in question. That means that in general, State representatives in the UNSC acting in the name of their States are fully bound by their State’s human rights obligations.119

7. Ultima Ratio or ‘Realm of the Possible?’ The recognition of a positive obligation to give effect to human rights in the establishing and listing phases leads to the question of how far a State has to go in order to protect human rights if it faces persistent opposition by other States. In theory, there are two conceivable solutions: A State could either be obliged to resort to more drastic means, e.g. domestic judicial review and subsequent non-implementation of targeted sanctions. This would, in extreme cases, even encompass an ultima ratio, e.g. a refusal to further cooperate within the UN system. Or, it could be deemed sufficient if a State exhausts all available and reasonable political and legal means within ‘a realm of the possible’ (Vorbehalt des Möglichen). 117 ICJ, Admission of a State to the United Nations, Advisory Opinion of 28 May 1948, ICJ Reports 1948, 57, 62; id., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 13. 118

von Arnauld, Das (Menschen-)Recht im Auslandseinsatz (note 51), 77.

119

Ibid.

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The former option was envisaged by the Bundesverfassungsgericht (Federal Constitutional Court (FCC)) in an obiter dictum in its Lisbon Treaty decision: The Court held that, in case an irresolvable democratic deficit appeared in the EU, Germany had to “endeavour to effect a change, and in the worst case, even to refuse further participation in the European Union.”120 Adapting this reasoning to our question, however, does not come without difficulties: As far as international human rights law is concerned, invoking human rights to justify non-cooperation would inevitably trigger Article 103 UN Charter. Article 103 UN Charter would render any conflicting obligation to protect human rights inapplicable. The ultima ratio-approach could thus only be sustained at the expense of ignoring Article 103 UN Charter. Although this would give maximum preference to the human rights perspective, it would lead to frictions in the coherence of the international legal order. It would arguably establish a ‘dualism’ between the UN and human rights perspectives, similar to the different perspectives of the FCC and the CJEU on the relation between EU law and domestic law,121 and apparently also similar to the different perspectives of the CJEU and the UNSC on the relation between EU and international law.122 The ECJ’s reasoning in Kadi I seems to give full preference to the human rights perspective, relying on the ‘autonomy’ of the EU legal order and its human rights guarantees vis à vis international law.123 Until late 2013, the ECtHR had avoided adopting such a ‘dualist’ approach.124 However, in its Al-Dulimi decision, the ECtHR accepted a ‘coexistence’ of the ECHR and human rights obligations under UNSC resolutions.125 The majority did not even discuss the respondent’s argument that Resolution 1483 (2003) might prevail over Switzerland’s obligations under the ECHR

120

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 123, 267, 365.

121

While a range of new concepts, such as the Solange doctrine, have emerged from this plurality of perspectives, it is nevertheless conflict-ridden. See e.g. Franz C. Mayer, Rebels Without a Cause? A Critical Analysis of the Federal Constitutional Court’s OMT Reference, German Law Journal 15 (2014), 111, 115 et seq., with further references. 122

See von Arnauld, Solange I 1/2 (note 91), 245.

123

ECJ, Kadi I (note 14), para. 285; reaffirmed in Kadi II (note 14), paras. 65 et seq.

124

E.g. ECtHR, Nada (note 19); id., Al-Jedda (note 12); HRC, Nabil Sayadi and Patricia Vinck v. Belgium (note 79). 125

ECtHR, Al-Dulimi and Montana Management Inc. (note 69), para. 111 (headline).

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by virtue of Article 103 UN Charter.126 The decision in Al-Dulimi, which has been referred to the Grand Chamber,127 thus appears to also build on a dualist conception. The ‘realm of the possible’ approach, for its part, would give due regard to Article 103 UN Charter. It would thus have the benefit of greater coherence between UN and human rights law. Moreover, it would recognise the fact that it might be out of one State’s hands to protect human rights without cooperation by others.128 Still, the question of what can reasonably be expected from a State differs from case to case. This approach thus increases legal uncertainty for States, individuals, and human rights bodies alike. While both the ECtHR and the CJEU tend to uphold human rights guarantees against the primacy of UN law in the first place, some cases imply avenues of reconciling the ‘coexisting’ legal obligations. In Al-Dulimi, the ECtHR accepted that the maintenance of international peace and security can serve as a legitimate aim for justifying proportionate restrictions on human rights.129 As to which factors are relevant for the proportionality test, the Court held that: it was not a question, in the present case, with the adoption of Resolution 1483 (2003), of responding to an imminent threat of terrorism, but of re-establishing the autonomy and sovereignty of the Iraqi Government and of securing the right of the Iraqi people freely to determine their own political future and control their own natural resources (see paragraph 4 of the preamble to Resolution 1483 (2003). The impugned measures were thus taken in the wake of an armed conflict, which originated in 1990. Therefore, more differentiated and specifically targeted measures would probably have been more conducive to the effective implementation of the resolutions.130

Considering the lengthy period during which the applicants’ assets had been frozen, the Court found that it was disproportionate to deny them access to judicial review.131 126

Ibid., para. 85. In his partly dissenting opinion, Judge Sajó considered the case inadmissible for this reason. See further the dissenting opinion of Judge Lorenzen, joined by Judges Raimondi and Jočienė. 127

ECtHR, Press release, April 16 2014, ECHR 105 (2014).

128

After the ECtHR’s Matthews judgment, the United Kingdom was unable to change EC law due to opposition by other EC members, see Thomas Giegerich, Verantwortlichkeit für Akte internationaler und supranationaler Organisationen, Zeitschrift für Vergleichende Rechtswissenschaft 104 (2005), 163, 168. 129

ECtHR, Al-Dulimi and Montana Management Inc. (note 69),127 et seq.

130

Ibid., 130.

131

Ibid., 131 et seq.

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Whether, and to what extent, it is proportionate to infringe on human rights because other members of the UNSC persistently refuse to adopt a decision that meets the requirements of applicable human rights guarantees, is an open question. In general, international cooperation has been accepted as a possible ground for restricting human rights by both the CJEU132 and the ECtHR.133 The passage from Al-Dulimi cited above indicates that more restrictive sanctions are permissible in cases of an ‘imminent threat,’ whereas sanctions which are intended to last longer might need regular revision in order to justify human rights infringements.

V. Conclusion – Elements of a ‘Pre-emptive Human Rights Compliance’ In the course of our analysis, we have found that from the perspective of UN law, States are generally free to implement sanctions in a manner consistent with their respective human rights obligations. However, any obligation under the Charter or UNSC resolutions prevails over human rights obligations by virtue of Article 103 UN Charter.134 To avoid the “Kadi-scenario,” States cannot ‘hide behind’ the primacy of UN obligations: UNSC sanctions are drafted and applied by States which are, to a large extent, bound by human rights treaties. From the perspective of these human rights regimes (and human rights courts!), acts of UNSC members leading to the adoption of a UNSC resolution establishing or amending a sanctions regime, as well as the subsequent designation of individuals for listing by UN Member States, are attributable to these States and constitute an exercise of ‘jurisdiction’ within the meaning of major human rights treaties.135 This finding is not prejudiced by the fact that UNSC sanctions have worldwide effects, as the specific criteria limiting a State’s responsibility for extraterritorial acts, following the ratio of allocating responsibilities between sovereign States, do not apply in the case at hand where no such coordination is needed.136 132

ECJ, Kadi II (note 14), para. 342.

133

ECtHR, Bosphorus (note 73), 149 et seq.; id., Al-Dulimi and Montana Management Inc. (note 69), 127 et seq. 134

See supra, III.

135

See supra, IV.A.1.

136

See supra, IV.A.2.

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As to the nature and scope of human rights obligations in the present context, we found that States are under a general obligation both to abstain from interferences with human rights and to actively protect them.137 When establishing a new sanctions regime and when designating individuals for listing, States have to ensure a level of protection for human rights at UN level which is equivalent to the level guaranteed in human rights treaties,138 a threshold which is hard to cross. If such a level cannot be achieved, States have the option to either incorporate an explicit human rights clause into the sanctions regime or to leave sufficient latitude for States to implement the sanctions consistent with their respective human rights obligations.139 Irrespective of the avenue States decide to pursue, they must take effective steps to ensure human rights, such as e.g. voting against insufficient drafts or refraining from designating individuals for listing.140 Moreover, a State remains responsible to fulfil its human rights obligations even if it is outvoted by other States.141 Political processes such as negotiations in the UNSC are capable of human rights ‘regulation,’ although States may retain flexibility though margins of appreciation, depending on the particular case.142 The question of how far a State must go to protect human rights is still unresolved. We found that, while by now, both the CJEU and the ECtHR seem to favour a dualistic ‘ultima ratio’ approach, the effects of such an approach could be alleviated by the possibility to justify those infringements on human rights which are proportionate in the light of the circumstances.143

137

See supra, IV.B.1.

138

See supra, IV.B.2.

139

See supra, IV.B.3.

140

See supra, IV.2.d).

141

See supra, IV.2.e).

142

See supra, IV.2.f).

143

See supra, IV.2.g).

The Uncertain Fate of the African Court on Human and Peoples’ Rights: The Problematic Merger with the African Court of Justice and the Establishment of an International Criminal Law Section ANJA KIEßLING(

ABSTRACT: In 1998, shortly before its transformation into the African Union (AU), the Organization of African Unity (OAU) adopted a protocol on the establishment of an African Court on Human and Peoples’ Rights (AfCHPR). Ten years later, the AfCHPR commenced with its regular work. Around the same time, AU leaders adopted a protocol aiming at the merger of the AfCHPR and the African Court of Justice, provided for under the AU’s Constitutive Act. While the protocol on the merger has not yet entered into force the AU has paved the way for further reform. In June 2014, it adopted another protocol providing for the establishment of an international criminal law section within the merged Court. The article will trace these developments. Following a brief introduction to the AfCHPR and its work, the foreseen merger and the possible add-on of an international criminal law section will be discussed. Particular focus will be placed on the international criminal law section as envisaged in the latest protocol. The questions of what these developments have in store for the AfCHPR and its mandate and whether they are legally sound and driven by a genuine concern for better human rights protection will be addressed in the course of the discussion. KEYWORDS: African Court on Human and Peoples’ Rights, African Court of Justice and Human Rights, African Court of Justice and Human and Peoples’ Rights, International Criminal Law Section, Malabo Protocol

I. Introduction Since the inception of the Organization of African Unity (OAU) in the wake of the decolonisation process the continent has come a long way. In 1994, about three decades after its creation, the OAU’s main objective, Africa’s liberation from colo-

(

Research assistant and assistant lecturer at the Institute of Public International Law at the University of the Bundeswehr, Munich.

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nialism and white minority rule, had been achieved.1 Yet, what the OAU failed to achieve was the liberation of the continent’s people. While no longer subject to colonial rule, they widely suffered at the hands of their new governments. It took close to two decades before OAU Member States managed to establish an institutional mechanism to attend to human rights issues on the continent. Unfortunately, that mechanism, the African Commission on Human and Peoples’ Rights, turned out to be ill-equipped to improve the human rights situation in a generally meaningful way. Eventually the popular call for a forceful mechanism to protect human rights was heard and in 1998, 35 years after its inception, the OAU adopted a protocol on the establishment of an African Court on Human and Peoples’ Rights (AfCHPR).2 By the time the protocol entered into force, the OAU had been transformed into the African Union (AU). Thus the AfCHPR found its footing under the aegis of the AU, and has since 2008 received and decided several cases. The story might have ended here on a bright note but recent developments may interfere with the current set-up of the AfCHPR. In 2008, at the very moment when the AfCHPR commenced with its regular work, AU leaders adopted a protocol aiming at the merger of the AfCHPR and the African Court of Justice, provided for under the AU’s Constitutive Act.3 While not yet in force, the Merger Protocol, as of late, faces amendment. Against the backdrop of increasing tensions between the AU and the International Criminal Court (ICC), the former began to push for the establishment of an international criminal law section within the merged Court. In June 2014, AU leaders readily adopted a protocol which amends the Merger Protocol to this end.4 These developments raise a number of questions as to whether they are legally sound, whether they will be detrimental to the AfCHPR and its mandate, and 1 Founded by 32 independent African States, the Organization of African Unity (OAU) was, upon reaching independence, joined by a further 21 States with South Africa becoming the 53rd member after the end of Apartheid in 1994. 2

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 9 June 1998 (Protocol), available via: http://www.au. int/en/treaties (accessed on 21 April 2015). 3 Constitutive Act of the African Union, 11 July 2000, UNTS 2158, 3 (Constitutive Act); Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008, ILM 48 (2009), 337 (Merger Protocol). 4

For further information, see infra, IV. B.

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whether they are driven by a genuine concern for better human rights protection. The latter is particularly questionable in view of the intended criminal law section. What appears to be a courageous step aimed at fighting impunity for gross human rights violations could, in fact, be a badly thought out idea driven by the fear of being held accountable for such violations. This article will seek answers to the above questions. To fully grasp the significance of the AfCHPR, the first section briefly traces the difficult path to its realisation. Thereafter, its mandate and work will be introduced to facilitate a better understanding of the institution which is potentially at risk. The final section discusses the impact of the foreseen merger and the possible add-on of an international criminal section. Contrary to the protocol on the merger, the protocol providing for the establishment of an international criminal law section within the merged Court is very recent. It will, therefore, be accorded particular attention. Before commenting on its impact on the AfCHPR, the newcomer that is the international criminal law section, will be introduced and a number of (legal) problems associated with its establishment will be highlighted.

II. The Long Road Towards the African Court on Human and Peoples’ Rights As early as January 1961, roughly two years before the advent of the OAU, the idea of a comprehensive African human rights system was brought forward at the African Conference on the Rule of Law in Lagos, Nigeria. Nearly 200 legal practitioners and scholars, the majority of them from Africa, met to assess the situation in the newlyindependent States from a rule of law perspective.5 At the close of the Conference they passed a resolution, known as the ‘Law of Lagos,’ in which they invited African Governments to study the possibility of adopting an African Convention of Human Rights in such a manner that the Conclusions of this Conference will be safeguarded by the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory States.6

5 International Commission of Jurists, African Conference on the Rule of Law, Lagos, Nigeria, 3– 7 January 1961 – A Report on the Proceedings of the Conference (1961), 5–7. 6

Ibid., 9 (emphasis added).

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Unfortunately, their call went unheeded. In fact, legal developments moved in a very different direction with the signature of the Charter of the Organization of African Unity (OAU Charter)7 in May 1963 and the resultant establishment of the OAU. The founding fathers of the OAU, acting under the immediate impression of colonial rule and the arduous struggle against it, did not preoccupy themselves with individual human rights. Instead they forged an organisation firmly dedicated to the eradication of all forms of colonialism and to the protection and consolidation of the hard-won independence and sovereignty.8 To achieve the latter, OAU Member States pledged to adhere to the principles of sovereign equality and non-interference in the internal affairs of States.9 Thus, a government’s conduct towards its own people was of no concern to other Member States. It took more than fifteen years, some unspeakable human rights violations in a number of African States, and an increased focus on human rights on the international plane to stir the OAU into action.10 In 1979, its supreme organ, the Assembly of Heads of State and Government, adopted a decision that called for a meeting of experts charged with the drafting of “an African Charter on Human and Peoples’ Rights providing, inter alia, for the establishment of bodies to promote and protect human and peoples’ rights.”11 In 1981, the African Charter on Human and Peoples’ Rights (Banjul Charter)12 was adopted and five years later, it entered into force.13 Article 30 Banjul Charter calls for the establishment of an African Commission on Human and Peoples’ Rights (Commission) to promote and protect its substantive provisions. Inaugurated in late 1987, the Commission, under its protective mandate, received communications from non-governmental organisations (NGOs), individuals, and in a few cases also from peoples.14 Unfortunately, its work had little impact on 7

Charter of the Organization of African Unity, 25 May 1963, UNTS 479, 39 (OAU Charter).

8

Preamble and Art. II (1)(c) and (d) OAU Charter.

9

Art. III (1) and (2) OAU Charter.

10

Edward Kannyo, The OAU and Human Rights, in: Yassin El-Ayouty/I. William Zartman (eds.), The OAU After Twenty Years (1984), 155, 163–166. 11 Assembly of Heads of State and Government Sixteenth Ordinary Session, Monrovia, Liberia, 16– 20 July 1979, AHG/Dec.115 (XVI) Rev. 1, para. 2 (b) (emphasis added). 12

African Charter on Human and Peoples’ Rights, 27 June 1981, ILM 21 (1982), 58 (Banjul Charter).

13

See status list, available via: http://www.au.int/en/treaties (accessed on 21 April 2015).

14

Art. 55 Banjul Charter. Communications are available via: http://www.achpr.org/communications/ (accessed on 21 April 2015).

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the ground.15 Despite its numerous flaws it was the fact that it was created as a quasijudicial body with no enforcement powers that rendered its protective mandate irrelevant.16 Jealously guarding their sovereignty, OAU Member States had not been prepared to yield to a protection mechanism that would have put their human rights record under effective scrutiny. In light of this, calls for the establishment of an African court grew louder until, in 1994, the Court appeared on the OAU’s agenda. It asked for a meeting of government experts and the Commission to ponder “means to enhance the efficiency of the Commission” in particular “the establishment of an African Court of Human and Peoples’ Rights.”17 After four years of deliberation, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Protocol) was adopted. In January 2004, it entered into force.18 At that time, the OAU no longer existed. In light of the continent’s political, economic, and social problems and the OAU’s inability to respond to them, African leaders had opted for a fresh start. In 2002, they launched the AU replacing the OAU after nearly 40 years of existence.19 Contrary to its predecessor, the AU’s Constitutive Act explicitly mentions the promotion and protection of human rights as one of the organisations’ objectives and declares the respect for human rights to be a principle based on which the organisation shall function.20 This raised hopes that the new

15 Claude E. Welch Jr., The African Commission on Human and Peoples’ Rights: A Five-Year Report and Assessment, Human Rights Quarterly 14 (1) (1992), 43, 53–57. 16 The Commission held non-compliance with its recommendations to be “one of the major factors of the erosion of the Commission’s credibility.” See: Non-Compliance of State Parties to Adopted Recommendations of the African Commission: A Legal Approach, DOC/OS/50b (XXIV) (1998), para. 2, reprinted in: Rachel Murray/Malcolm D. Evans (eds.), Documents of the African Commission on Human and Peoples’ Rights (2001), 758. 17

Assembly of Heads of State and Government Thirtieth Ordinary Session, Tunis, Tunisia, 13– 15 June 1994, AHG/Res.230 (XXX), para. 4. 18

See status list, available via: http://www.au.int/en/treaties (accessed on 21 April 2015).

19

The AU’s inaugural session was held in Durban, South Africa, 9–10 July 2002 (ASS/AU/Decl. 2 (I)). For details regarding its creation and institutional framework, see: Corinne A. A. Packer/Donald Rukare, The New African Union and Its Constitutive Act, American Journal of International Law 96 (2) (2002), 365. 20

Arts. 3 (h) and 4 (m) Constitutive Act.

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organisation would be driven by a stronger commitment to human rights as well as their institutional protection.21 The AfCHPR slowly consolidated itself within this new environment. In 2006, the judges were elected, took their oath of office, and began to deliberate on the Court’s rules of procedure.22 In 2007, the AU and Tanzania signed a host agreement.23 With the adoption of its interim rules of procedure in 2008 the AfCHPR was ready to “complement the protective mandate of the African Commission on Human and Peoples’ Rights” as provided for by its Protocol.24

III. The African Court on Human and Peoples’ Rights A. The Court and its Mandate

The AfCHPR is served by eleven judges, elected by secret ballot by the AU25 Assembly from a list of persons proposed by the States parties to the Protocol.26 Apart from the President, all judges work on a part-time basis.27 However, if deemed appropriate, the 21 Vincent O. Nmehielle, The African Union and African Renaissance: A New Era for Human Rights Protection in Africa?, Singapore Journal of International and Comparative Law 7 (2003), 412, 432–446. For a critical voice, see: Nsongurua J. Udombana, Can the Leopard Change its Spots? The African Union Treaty and Human Rights, American University International Law Review 17 (6) (2002), 1177. 22 The election took place at the AU Assembly’s Sixth Ordinary Session in Khartoum, Sudan, 23– 24 January 2006, Assembly/AU/Dec.100 (VI). They were sworn in at the AU Assembly’s Seventh Ordinary Session in Banjul, Gambia, 1–2 July 2006. See: http://www.african-court.org/en/index.php/ about-the-court/quick-facts-menu (accessed on 21 April 2015). 23 Host Agreement between the Government of the United Republic of Tanzania and the African Union on the Seat of the African Court on Human and Peoples’ Rights in Arusha, Tanzania, 31 August 2007, available via: http://www.african-court.org/en/index.php/documents-legal-instruments/basicdocuments (accessed on 21 April 2015). 24

Art. 2 Protocol. Early in its operational phase, the Court harmonised its rules of procedure with those of the Commission. The ‘Rules of Court’ entered into force on 2 June 2010 (Rule 76). They are available via: http://www.african-court.org/en/index.php/documents-legal-instruments/basic-documents (accessed on 21 April 2015). ‘Rules of Court’ will refer to the rules of 2010. 25 Due to the time of adoption, the provisions of the Protocol pertain to the OAU. The paper refers to its successor, the AU. 26 Arts. 11 (1), 12 (1), and 14 (1) Protocol. Their profiles are available at: http://www.african-court. org/en/index.php/about-the-court/judges (accessed on 21 April 2015). 27

Art. 15 (4) Protocol.

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AU Assembly may change this arrangement.28 The Court, holding four ordinary sessions a year,29 can exercise both contentious and advisory jurisdiction.30 In this context, its contentious jurisdiction and the question of individual/NGO access are of relevance.31 Compared to other regional and international human rights bodies which are entitled to pronounce on the documents under which they were established, the AfCHPR has a very wide subject matter jurisdiction. It can deal with all cases and disputes “concerning the interpretation and application of the [Banjul] Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.”32 Based on this provision, a number of African and international human rights treaties become enforceable including those which do not provide for an enforcement mechanism. Considering the otherwise so watchful African States the breadth of the mandate is astounding. Whereas the Commission, States parties to the Protocol, and African intergovernmental organisations have direct access to the AfCHPR, the direct access of individuals and NGOs is optional.33 According to Article 34 (6) Protocol, their access is dependent on whether States parties to the Protocol have made a declaration in which they accept the Court’s competence to receive the cases brought by individuals or NGOs.34 Once a State has made a respective declaration, the access provided for is quite generous. Notably, there is no victim requirement. However, NGO access is limited to “NGOs with observer status before the Commission,” currently enjoyed by 477 African and international NGOs.35 Unfortunately, the access of peoples is not specifically mentioned. 28

Ibid.

29

Rule 14 (1) Rules of Court.

30

Arts. 3 and 4 Protocol.

31

For the Court’s advisory jurisdiction, see: Anne Pieter van der Mei, The Advisory Jurisdiction of the African Court on Human and Peoples’ Rights, African Human Rights Law Journal (AHRLJ) 5 (1) (2005), 27. 32

Art. 3 (1) Protocol (emphasis added).

33

Art. 5 (1) and (3) Protocol.

34

Art. 34 (6) Protocol.

35

Observer status is granted if the objectives and activities of a NGO are consistent with the OAU Charter (AU Constitutive Act) and the Banjul Charter. The NGO must further work in the field of human rights and declare its financial resources. For more, see: Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organizations Working in the Field of Human and Peoples’ Rights, ACHPR/Res.33(XXV)99. NGOs with observer status are listed at: http://www. achpr.org/network/ngo/by-name/ (accessed on 21 April 2015).

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The widespread concern that the above regulation has attracted is aptly summarised by one author who remarks that: given the sensitivities about international adjudication expressed by the States involved in the drafting and adoption process of the African [Banjul] Charter as well as the Protocol, granting individuals direct access […] is not likely to be a popular option.36

And indeed, so far, only seven out of currently 28 States parties to the Protocol have made the aforesaid declaration.37 The lack of direct access could potentially be overcome by the Commission which can receive individual/NGO communications under the Banjul Charter. Having direct access to the Court, it could act as a facilitator of individual/NGO access. Should the Commission make use of this option, the AfCHPR could truly complement the protective mandate of the Commission. According to Article 28 (2) Protocol, the Court’s judgments are final. States parties to the Protocol “undertake to comply with the judgment […] and to guarantee its execution.”38 In its activity reports, to be submitted to the AU Assembly, the AfCHPR “shall specify, in particular, the cases in which a State has not complied with the Court’s judgment.”39 If willing, the AU could take a decision concerning the offending State and impose sanctions in order to enforce its decision if the State fails to comply.40 Finally, “in cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons” the AfCHPR is also entitled to adopt provisional measures.41 After all, the AfCHPR’s mandate is more robust than that of the Commission whose protective function was severely curtailed by its inability to pass binding decisions.

36

Christof Heyns, The African Regional Human Rights System: In Need for Reform?, AHRLJ 1 (2) (2001), 155, 170. 37

These are Burkina Faso, Malawi, Mali, Tanzania, Ghana, Rwanda, and Côte d’Ivoire. The declarations are annexed to the status list. 38

Art. 30 Protocol.

39

Art. 31 Protocol.

40

Art. 23 (2) Constitutive Act. NB: The OAU with its strong emphasis on sovereignty would have been in no position to enforce cases of non-compliance as it had no sanctioning power. 41

Art. 27 (2) Protocol.

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B. The Court at Work

1. Accomplishments The AfCHPR received its first case in late 2008, and now, six and a half years later, 35 cases have reached the Court, eleven of which are still pending.42 A closer look at these cases merits, at the very least, an article in itself. In this context, only a brief overview and some general observations can be provided. Of the 24 finalised cases, fifteen were dismissed on grounds of lack of jurisdiction. Most of them were initiated by individuals against States that had not granted individual access.43 A few applications were directed against States that had not signed/ratified the Protocol or against non-State entities, namely the AU and the Pan-African Parliament.44 One of the nine remaining cases was struck out on the applicant’s request.45 Of the eight other cases which the AfCHPR had jurisdiction, three were inadmissible as domestic remedies had not been exhausted.46 Notably, the Commission submitted one of the five remaning cases. It reached the Court in March 2011 and was directed against Libya claiming that serious and widespread violations of human rights guaranteed under the Banjul Charter were perpetrated in response to the uprising against

42 For an overview of the cases and their status, see: http://www.african-court.org/en/index.php/ 2012-03-04-06-06-00/cases-status1 (accessed on 21 April 2015). The AfCHPR has also received eight requests for an advisory opinion. For particulars, see: http://www.african-court.org/en/index.php/ 2012-03-04-06-06-00/advisory-opinion (accessed on 21 April 2015). 43 A few of them were referred to the Commission in accordance with Art. 6 (3) Protocol. For further information, see: http://www.african-court.org/en/index.php/2012-03-04-06-06-00/referred-cases (accessed on 21 April 2015). 44 Remarkably, the applications against the AU (AfCHPR, Femi Falana v. African Union, Judgment, Application No. 001/2011; id., Atabong Denis Atemnkeng v. African Union, Judgment, Application No. 014/2011) related to Art. 34 (6) Protocol. The first applicant claimed that his country’s refusal to provide for individual access violated a number of rights under the Banjul Charter. He submitted the application against the AU as a representative of its Member States. The other applicant claimed that Art. 34 (6) Protocol is inconsistent with some of the fundamental principles of the AU’s Constitutive Act, wherefore, the AfCHPR should render the article null and void. Both cases were dismissed by majority vote. The dissenting opinions are attached to the decisions. 45 46

Id., Rutabingwa Chrysanthe v. Rwanda, Pending Case, Application No. 003/2013.

Id., Urban Mkandawire v. Malawi, Judgment, Application No. 003/2011; id., Frank David Omary and Others v. Tanzania, Judgment, Application No. 001/2012; id., Peter Joseph Chacha v. Tanzania, Judgment, Application No. 003/2012.

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Gaddafi.47 Less than ten days later, after prima facie affirming its jurisdiction, the AfCHPR, in accordance with Article 27 (2) Protocol, ordered provisional measures suo motu. It commanded Libya to “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the [Banjul] Charter.”48 This, of course, did not stop the bloodshed and to have expected otherwise would be naive. In spite of this, the AfCHPR deserves credit for the assertive and expeditious manner in which it handled the case.49 The interplay between the Commission and the Court is also worth a mention. Notably, two of the pending cases, likewise submitted by the Commission, resulted in orders for provisional measures.50 The Commission’s demonstrated willingness to facilitate access to the AfCHPR in urgent matters is laudable. The four outstanding cases are, indeed, outstanding as they resulted in the first judgments on merits.51 The first judgment, passed in June 2013, relates to two of these cases which were joined by the AfCHPR.52 In their applications, two Tanzania-based NGOs and one individual applicant, a national of Tanzania, alleged that Tanzania had “violated its citizens’ right of freedom of association, the right to participate in public/ 47 Id., African Commission on Human and Peoples’ Rights v. Libya, Order of Provisional Measures, Application No. 004/2011. 48

Ibid., para. 25 (2), available via: http://www.african-court.org/en/index.php/2012-03-04-06-0600/all-cases-and-decisions/2-home/173-application-no-004-2011-african-commission-on-human-andpeoples-rights-v-great-socialist-people-s-libyan-arab-jamahiriya (accessed on 21 April 2015). 49 The Libyan side eventually requested for the case to be dropped as the offending government no longer existed. The Commission asked for the matter to be adjourned until the situation in Libya would allow for the gathering of evidence and testimonies. Lacking further input from the Commission the case was struck out in March 2013. 50

AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, Order of Provisional Measures, Application No. 006/2012; id., African Commission on Human and Peoples’ Rights v. Libya, Order of Provisional Measures, Application No. 002/2013. While Kenya has complied with the AfCHPR’s order, Libya has not. See id., Activity Report of the African Court on Human and Peoples’ Rights (2013), EX.CL/825(XXIV), para. 24, Nos. 3, 4. 51

Id., Tanganyika Law Society et al. v. Tanzania, Judgment, Application No. 009/2011; id., Rev. Christopher R. Mtikila v. Tanzania, Judgment, Application No. 011/2011; id., Beneficiaries of the Late Norbert Zongo et al. v. Burkina Faso, Judgment, Application No. 013/2011; id., Lohé Issa Konaté v. Burkina Faso, Judgment, Application No. 004/2013. 52 Id., Tanganyika Law Society and Legal and Human Rights Centre and Rev. Christopher Mtikila v. The United Republic of Tanzania, Judgment, Applications No. 009/2011 and No. 011/2011. The judgment is available via: http://www.african-court.org/en/index.php/2012-03-04-06-06-00/all-cases-anddecisions/2-home/161-applications-no-009-12-joint-case (accessed on 21 April 2015).

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governmental affairs and the right against discrimination.”53 The violation stemmed from Tanzania’s Eighth and Eleventh Constitutional Amendment Act which required “that any candidate for Presidential, Parliamentary and Local Government elections had to be a member of, and be sponsored by, a political party.”54 Tanzania’s argument “that the prohibition of independent candidates is a way of avoiding absolute and uncontrolled liberty, which would lead to anarchy and disorder” and was thus “necessary for good governance and unity”55 failed to convince the AfCHPR. The Court drew on decisions and jurisprudence from the Commission and other human rights treaty bodies to interpret the relevant provisions of the Banjul Charter thereby, en passant, broadening the sources of law at its disposal beyond those specified in Article 7 Protocol.56 In the end, it essentially agreed with the applicants and held that Tanzania’s constitutional provisions violated four provisions of the Banjul Charter, namely the right to participate freely in the government of one’s country (Article 13 (1) Banjul Charter), the right to freedom of association (Article 10 Banjul Charter), and the rights to non-discrimination and equal protection before the law (Articles 2 and 3 (2) Banjul Charter).57 In view of the alleged violations of other human rights instruments, i.e. the International Covenant on Civil and Political Rights (ICCPR)58 and the Universal Declaration of Human Rights (UDHR),59 the AfCHPR noted “that it has jurisdiction to interpret the said Treaties”60 but deemed it unnecessary to do so as all alleged violations could be dealt with under the Banjul Charter.61 While this approach presents a feasible way to avoid diverging interpretations of international provisions as long as the Banjul Charter provides sufficient protection, it is somewhat disturbing that the Court refers to the UDHR as a treaty. Given that its 53

Ibid., para. 4.

54

Ibid., paras. 67, 71.

55

Ibid., para. 90.1.

56

Art. 7 Protocol unduly restricts the applicable sources of law to “the provisions of the [Banjul] Charter and any other relevant human rights instruments ratified by the States concerned”. 57

AfCHPR, Tanganyika Law Society and Legal and Human Rights Centre and Rev. Christopher Mtikila v. The United Republic of Tanzania (note 52), para. 126. 58

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171.

59

Universal Declaration of Human Rights, GA Res. 217 (III) of 10 December 1948.

60

AfCHPR, Tanganyika Law Society and Legal and Human Rights Centre and Rev. Christopher Mtikila v. The United Republic of Tanzania (note 52), para. 122 (emphasis added). 61

Ibid., para. 123.

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jurisdiction extends to any relevant human rights instrument ratified by the State concerned the UDHR would certainly not without further ado fall within the scope of its jurisdiction. As the last remark indicates, the Court’s first judgment is by no means perfect. It remains, to some extent, sketchy owing to a lack of structure and sufficient reasoning. It is well worth reading the separate opinion of Judge Fatsah Ouguergouz which is a critical appraisal of the Court’s handling of jurisdiction and admissibility (which were strangely dealt with in the reverse order) as well as merits.62 However, despite its shortcomings, the judgment is a major step forward. The AfCHPR has shown its resolve to pronounce on human rights violations committed by States. Ultimately, Tanzania was instructed “to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found.”63 The second judgment, passed in March 2014, relates to an application filed against Burkina Faso.64 An investigative journalist, his younger brother, and two of his aides were all murdered in the same incident in 1998. Together with a local NGO, their beneficiaries claimed that “Burkina Faso had manifestly and repeatedly chosen to frustrate the efforts of the families […] aimed at making those responsible for the assassination account for their conduct.”65 In view of the prolonged investigation of the crime and the fact that only one of the identified suspects faced charges which were subsequently dropped, the AfCHPR found that Burkina Faso had failed to take adequate steps to ensure the applicants’ right to have their cause heard by competent national courts and, therefore, violated Articles 7 and 1 Banjul Charter.66 It further 62 The separate opinion is attached to the judgment. For a detailed and instructive discussion of the judgment, see also: Markus Löffelmann, Das Urteil des Afrikanischen Gerichtshofs für die Rechte der Menschen und der Völker zum Wahlrecht, Europäische Grundrechte-Zeitschrift 40 (20–21) (2013), 577–584. 63

AfCHPR, Tanganyika Law Society and Legal and Human Rights Centre and Rev. Christopher Mtikila v. The United Republic of Tanzania (note 52), para. 126 (3). It is too early to tell whether Tanzania has complied. 64

Id., Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise Ilboudo & the Burkinabè Human and Peoples’ Rights Movement v. Burkina Faso, Judgment, Application No. 013/2011. 65 Id., Case summary of Application No. 013/2011, para. 8, available via: http://www.african-court. org/en/index.php/2012-03-04-06-06-00/all-cases-and-decisions/2-home/184-application-no-0132011-abdoulaye-nikiema-ernest-zongo-blaise-ilboudo-burkinabe-human-and-peoples-rights-movementv-the-republic-of-burkina-faso (accessed on 21 April 2015). 66 Fédération Internationale des Ligues des Droits de l’Homme (FIDH), Burkina Faso/NorbertZongo Case: The African Court recognizes the responsibility of the State of Burkina Faso in the Denial

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held that the failure to investigate and prosecute those who killed the journalist and his companions instilled fear and anxiety among other journalists and as a result violated the right to freedom of expression as provided in Article 9 (2) Banjul Charter read together with Article 66 (2)(c) Revised Treaty of the Economic Community of West African States67 which obliges Member States “to ensure respect for the rights of journalists.”68 Alleged violations of the ICCPR and the UDHR were seemingly not examined. Regarding the issues involved it will certainly be interesting to read the full reasoning.69 At any rate, it is important to note that the AfCHPR once again underscored its determination to hold States accountable for human rights violations.70

2. Challenges The AfCHPR is faced with a number of challenges which may be grouped in three categories: 1) inadequate resources, 2) inadequate support, and 3) inadequate access. The reference to the first challenge is a regular feature in the AfCHPR’s activity reports and comes as no surprise in light of the chronically underfunded AU. In its most recent activity report, the AfCHPR draws attention to staff shortages leading to a situation in which existing staff perform functions beyond their competencies.71 Plus, many staff members and some judges lack basic furniture and working equipment.72 The Court also notes that it operates a manual case and human resource management system as owing to inadequate resources, it cannot procure necessary software.73 Undoubtedly, these circumstances are detrimental to the AfCHPR’s work. of Justice for the victims, 15 April 2014, available at: http://www.fidh.org/en/africa/burkina-faso/ 15142-burkina-faso-norbert-zongo-case-the-african-court-recognizes-the (accessed on 21 April 2015). 67 Revised Treaty of the Economic Community of West African States, 24 July 1993, ILM 35 (1996), 660. 68

Ibid.

69

The judgment has recently been published. It is now available at: http://www.african-court. org/en/images/documents/Judgment/Nobert%20Zongo%20Judgment-%20English.pdf (accessed on 21 April 2015). 70

The third judgment had not yet been rendered at the time of writing.

71

Activity Report of the African Court on Human and Peoples’ Rights (2013), EX.CL/825 (XXIV), para. 119. 72

Ibid., para. 120.

73

Ibid.

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The AU, despite its dire financial situation, must demonstrate its commitment to human rights by providing enough resources to build the institution intended to protect them. At the same time, the AfCHPR could try to save time and resources by streamlining some of its procedures.74 It also remains to be seen where the AfCHPR’s case load is headed. If it stays at current levels, more resources are unlikely to be forthcoming. In fact, in the eyes of some commentators, “financial resources allocated to the African Court are clearly excessive in relation to its current workload and output.”75 The second challenge is of a rather recent nature and arises in view of the AU’s (questionable) willingness to adequately attend to the AfCHPR’s work. Whereas Article 31 Protocol stipulates that the AfCHPR shall submit an activity report to each regular session of the AU Assembly, that is twice a year, it has been asked by the AU Commission76 to report on its activities no more than once a year.77 Bearing in mind that it is via the activity reports that the AfCHPR brings cases of non-compliance to the attention of the AU Assembly this is a very disappointing development which, in the interest of an effective human rights protection, should be reversed. As to the third challenge regarding individual access, the AfCHPR aptly pointed at its solution: If the Court is to make any effective contribution to the African Union architecture, Member States of the African Union would have to demonstrate their commitment to human rights, through the ratification of the Protocol as well as their acceptance of the competence of the Court, by making a declaration under Article 34 (6) thereof.78

74

As pointed out by Judge Ouguergouz, applications in which the AfCHPR manifestly lacks jurisdiction do not require a formal decision of the full Court. See for example AfCHPR, Ekollo M. Alexandre v. Republic of Cameroon and Federal Republic of Nigeria, Decision, Application No. 008/ 2011, para. 7, available via: http://www.african-court.org/en/index.php/2012-03-04-06-06-00/allcases-and-decisions (accessed on 21 April 2015). 75 Magnus Killander/Adem K. Abebe, Human Rights Developments in the African Union during 2010 and 2011, AHRLJ 12 (1) (2012), 199, 214. 76

The African Union Commission is the secretariat of the Union (Art. 20 (1) Constitutive Act).

77

Activity Report of the African Court on Human and Peoples’ Rights (2013), EX.CL/825 (XXIV), para. 111. 78

Ibid., para. 123.

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IV. The Court at Risk? With the AfCHPR up and running this article could end positively leaving it to a future assessment to evaluate its impact on the ground. However, recent developments might affect the current set-up of the AfCHPR and endanger its work.

A. The Merger: African Court of Justice and Human Rights

The AU’s Constitutive Act provides for a number of Union organs one of which is the Court of Justice (CJ).79 According to Article 26 Constitutive Act, the CJ is mandated to interpret matters “arising from the application or implementation of this Act.” Particulars were to be defined by a protocol which was adopted in July 2003 (CJ Protocol).80 A year later, shortly after the Protocol on the establishment of the AfCHPR entered into force, the AU Assembly decided to merge the CJ and the AfCHPR.81 Another four years later, at a time when the AfCHPR awaited its first case, the AU Assembly adopted a protocol providing for the merger of the two institutions (Merger Protocol). Upon its entry into force, the Merger Protocol will replace the Protocol on the establishment of the AfCHPR and the CJ Protocol. The two courts will be consolidated into a single court with two sections, a general affairs and a human rights section.82 In other words, the AfCHPR will cease to exist as an independent entity and become part of the “African Court of Justice and Human Rights.”83 Notably, the reference to peoples’ rights, one of the unique features of the African human rights system, will disappear from the Court’s name. The Merger Protocol contains a number of transitional provisions regarding the AfCHPR but remains silent on the CJ. This is peculiar, as a couple of months before 79

Arts. 5 (d) and 18 Constitutive Act.

80

Protocol of the Court of Justice of the African Union, 11 July 2003 (CJ Protocol), available via: http://www.au.int/en/treaties (accessed on 21 April 2015). NB: Art. 19 CJ Protocol significantly expands its jurisdiction. 81 AU Assembly’s Third Ordinary Session, Addis Ababa, Ethiopia, 6–8 July 2004, Assembly/AU/ Dec.45 (III), para. 4. 82 Art. 2 Merger Protocol and Art. 16 Statute of the African Court of Justice and Human Rights (annexed to the Merger Protocol) (Statute). 83

Art. 2 Merger Protocol.

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its adoption (1 July 2008) the CJ Protocol had entered into force (11 February 2008).84 Therewith, one would expect that the establishment of the CJ would have to go ahead as envisaged by its protocol. The AU, however, seems to have forgotten all about the CJ. This becomes crystal clear in view of Article Merger Protocol which reads: The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, adopted on 10 June 1998 in Ouagadougou, Burkina Faso and which entered into force on 25 January 2004, and the Protocol of the Court of Justice of the African Union, adopted on 11 July 2003 in Maputo, Mozambique, are hereby replaced by the present Protocol and Statute annexed as its integral part hereto, subject to the provisions of Article 5, 7 and 9 of this Protocol.

The provision makes no mention of the fact that the CJ Protocol entered into force. Its failure to provide for transitional provisions with regard to the CJ suggests that it was not expected to become operational in the first place. Be that as it may, the question here is what the Merger Protocol entails for the AfCHPR or rather the human rights section of the merged Court. The Statute of the merged Court is annexed to the Merger Protocol. Article 16 Statute provides that the human rights section will be composed of eight judges. This reduces the number of judges dealing with human rights cases by three. All judges, apart from the President and Vice-President, will continue to work on a part-time basis.85 The affirmation that the AU Assembly may change this arrangement if deemed appropriate has, unfortunately, been omitted. Instead, the AU Assembly may review the number of judges upon a recommendation of the Court.86 One may reasonably doubt whether more part-time judges are preferable over fewer full-time judges. The seat of the merged Court shall be the same as the seat of the AfCHPR.87 From this provision one can deduce the reason for merging the courts. In light of im-

84 On 11 January 2008, Algeria deposited the fifteenth instrument of ratification, 30 days later, on 11 February 2008, the CJ Protocol entered into force (Art. 60 CJ Protocol). Strangely, the date of entry into force provided by the AU is 11 February 2009. See status list, available via: http://www.au.int/en/ treaties (accessed on 21 April 2015). Whether this is a simple mistake or an attempt to conceal the fact that the Merger Protocol ought to have said something about the CJ is an open question. 85

Art. 8 (4) Statute.

86

Art. 3 (1) Statute.

87

Art. 25 (1) Statute.

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mense resource constraints a single court with one seat is likely to incur lesser expenses by avoiding unnecessary duplications of staff and facilities.88 On more substantial issues: the Statute explicitly states that the AU may impose sanctions where a party fails to give effect to a judgment.89 It also adds another treaty body to the entities with direct access to the Court, namely the African Committee of Experts on the Rights and Welfare of the Child.90 A further addition to these entities are National Human Rights Institutions which are “public institutions established by a state to promote and protect human rights.”91 Like the Commission, the Committee and (truly independent) National Human Rights Institutions could function as a facilitator for individual access since – and this is the downside – the Statute has left intact the requirement that States have to make a declaration for individuals to have direct access. Article 30 (f) Statute provides that individuals or NGOs accredited to the AU or its organs are eligible to submit cases subject to the provisions of Article 8 Merger Protocol. Article 8 (3) Merger Protocol reads “any Member State may, at the time of signature […] or any time thereafter, make a declaration accepting the competence of the Court to receive cases under Article 30 (f) involving a State which has not made such a declaration.” The provision seems to entitle States parties to the Merger Protocol to grant individual access in cases that involve other States which have not made such a declaration. This hardly makes sense. What could explain the curious wording is the drafting history of the Merger Protocol. Initially, the requirement of a declaration allowing for individual/NGO access was abandoned.92 When it was reintroduced, part of the respective provision seemingly went missing. In all likelihood, Article8 (3) Merger Protocol should read “any Member State may […] make a declaration accepting 88

For more details on the financial implications see: Nsongurua J. Udombana, An African Human Rights Court and an African Union Court: A Needful Duality or a Needless Duplication?, Brooklyn Journal of International Law 28 (3) (2002–2003), 811, 859–863. 89

Art. 46 (5) Statute.

90

Art. 30 (c) Statute. The Committee was established under Art. 32 African Charter on the Rights and Welfare of the Child “to promote and protect the rights and welfare of the child.” African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49 (1990). Text and status list are available via: http://www.au.int/en/treaties (accessed on 21 April 2015). 91 92

Arts. 1 and 30 (e) Statute.

Ibrahima Kane/Ahmed C. Motola, The Creation of a New African Court of Justice and Human Rights, in: Malcolm D. Evans/Rachel Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006 (2nd ed. 2008), 406, 430.

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the competence of the Court to receive cases under Article 30 (f). The Court shall not receive any case under Article 30 (f) involving a State which has not made such a declaration.”93 This would be in line with the prevailing Article 34 (6) Protocol. It is deplorable that the Statute retains the declaration requirement concerning individual/NGO access and that the Statute further restricts access in relation to NGOs is alarming. While they currently need observer status before the Commission they will henceforth be required to be accredited to the AU. Thus, NGOs must, inter alia, be registered in an AU Member State and provide a minimum of three years proof of registration as either an African or an African Diaspora Civil Society Organisation.94 Furthermore, their management must be composed of a majority of Africans and of their resources at least two-thirds must be derived from contributions of its members.95 NGOs have called for an amendment of these criteria, particularly in view of the funding requirement.96 Notwithstanding such calls, the criteria have remained unchanged, thus the number of NGOs entitled to file submissions to the merged Court will be severely reduced. The merger also creates a number of legal uncertainties. As pointed out earlier, upon its entry into force the Merger Protocol will replace the protocols on the AfCHPR and the CJ. In other words: the AfCHPR, after a transitional period, will cease to exist.97 According to Article 9 (1) Merger Protocol it will take fifteen ratifications for the Protocol to enter into force.98 It is quite possible that a substantial number of the 28 States parties to the protocol on the AfCHPR will not be parties to the Merger Protocol at that time. In fact, there appear to be some States who subscribe to one court but not the other.99 Their willingness to commit to the all in one 93

Emphasis added.

94

Criteria for Granting Observer Status and for a System of Accreditation within the AU, July 2005, EX.CL/195 (VII) Annex IV, Sec. I, para. 5. 95

Ibid., paras. 6 (d), 7.

96

Strengthening Popular Participation in the African Union: A Guide to AU Structures and Processes (2009), 43, available at: http://www.afrimap.org/english/images/report/AfriMAP-AU-GuideEN.pdf (accessed on 21 April 2015). 97

For the transitional provisions, see: Arts. 4–7 Merger Protocol.

98

In practice, sixteen ratifications will be required to fill the Court’s bench which shall consist of sixteen judges with no more than one judge from a single Member State (Art. 3 (1) and (2) Statute). 99

Burundi, Kenya, Malawi, and Uganda ratified the Protocol establishing the AfCHPR but not the CJ Protocol. Sudan and Egypt, on the other hand, ratified the CJ Protocol but not the Protocol estab-

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option provided by the Merger Protocol is, at best, questionable. There is no provision in the Merger Protocol that deals with the legal validity of their ratifications and declarations made with regard to the AfCHPR.100 For some States this could constitute a welcome opportunity to silently free themselves from the reach of human rights adjudication.101 While, on a factual basis, the human rights section of the merged Court could exercise the jurisdiction which had been exercised before by the AfCHPR, it is uncertain whether States will accept the jurisdiction of an entity to which they have not subscribed. Moreover, the merging of a treaty body (AfCHPR) and a principal organ of the African Union (CJ) raises questions as to the place of the new entity within the institutional framework of the AU. Article 3 Merger Protocol provides that “[r]eferences made to the ‘Court of Justice’ in the Constitutive Act of the African Union shall be read as references to the ‘African Court of Justice and Human Rights’ established under Article 2 of this Protocol.” Hence, the merged Court will be an organ of the AU. From a legal perspective this constitutes an amendment of the Constitutive Act which is effectuated by a provision of a protocol. However, pursuant to its amendment clause the Constitutive Act cannot be amended in such a manner.102 At present, the Merger Protocol has attracted no more than five ratifications, a number that even by AU standards is very low. Of the 28 States parties to the Protocol on the establishment of the AfCHPR, four have ratified the Merger Protocol.103 Of the sixteen States parties to the CJ Protocol, one has ratified the Merger Protocol.104 Notably, the Protocol on the establishment of the AfCHPR has attracted four

lishing the AfCHPR. None of these countries has signed the Merger Protocol. Status lists available via: http://www.au.int/en/treaties (accessed on 21 April 2015). 100

The same applies to the ratifications made with regard to the CJ.

101

Markus Löffelmann, Protection of Human Rights in Theory and Reality: The Case of the African Court on Human and Peoples’ Rights, Die Friedens-Warte 85 (1–2) (2010), 161, 168. 102

Art. 32 Constitutive Act.

103

Burkina Faso, Congo, Libya, and Mali. Status list available via: http://www.au.int/en/treaties (accessed on 21 April 2015). 104

Libya. Status list available via: http://www.au.int/en/treaties (accessed on 21 April 2015).

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more ratifications after the adoption of the Merger Protocol.105 This is good news for the AfCHPR as it can continue with its work.

B. Yet Another Merger: The African Court of Justice and Human and Peoples’ Rights

While the Merger Protocol is not yet in force, the AU has further reform on the agenda, namely adding an international criminal law section to the merged Court. The main driver behind this endeavour is the increasingly strained relationship between the AU and the ICC. To date, all situations in which the ICC formally opened investigations pertain to Africa.106 This, in turn, led to stern criticism regarding selective prosecution.107 In 2009, after the indictment and subsequent arrest warrant for Sudan’s sitting President, Omar al-Bashir, the relationship between the AU and the ICC turned from strained to hostile. With the Security Council not acting upon AU requests to defer the case against al-Bashir in accordance with Article 16 Rome Statute of the International Criminal Court (Rome Statute),108 the organisation called upon its Member States not to cooperate with the Court in view of the arrest and surrender of al-Bashir.109 At that time, the AU already toyed with the idea of bringing the adjudication of international crimes under the wing of an African institu-

105 Congo, Malawi, Western Sahara, and – most recently and not yet listed on the status list – Benin. However, the Congo also later ratified the Merger Protocol. The CJ Protocol has also attracted a further ratification since the adoption of the Merger Protocol. 106

See International Criminal Court (ICC), Situations and Cases, available at: http://www.icc-cpi. int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx (accessed on 21 April 2015). 107 Tim Murithi, The African Union and the International Criminal Court: An Embattled Relationship, The Institute for Justice and Reconciliation, Policy Brief No. 8 (2013), 2–3, available at: http://www.ijr.org.za/publications/pdfs/IJR%20Policy%20Brief%20No%208%20Tim%20Miruthi.pdf (accessed on 21 April 2015). 108 109

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3 (Rome Statute).

AU Assembly’s Thirteenth Ordinary Session, Sirte, Libya, 1–3 July 2009, Assembly/AU/Dec. 245(XIII) Rev.1, para. 10. These calls were reiterated at numerous AU Assembly sessions and are now the subject of a request for an advisory opinion before the AfCHPR (Coalition on the International Criminal Court ltd/gte (ciccn), Legal Defence & Assistance Project ltd/gte (ledap), Civil Resource Development & Documentation Center (cirddoc) and Women Advocates Documentation Center ltd/gte (wardc), Request No. 001/2014), available via: http://www.african-court.org/en/index.php/2012-03-04-06-0600/advisory-opinion (accessed on 21 April 2015).

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tion.110 An idea, that then gained real momentum.111 In early 2010, the AU Commission contracted consultants to draft amendments to the Merger Protocol to extend the Court’s jurisdiction to international crimes.112 While the drafting process, which was heavily criticised for its rashness and opacity,113 was underway, anti-ICC sentiment deepened as further African officials, including the current President of Kenya, Uhuru Kenyatta, and his Vice-President, William Ruto, became the subject of ICC investigations.114 In early 2014, the AU Assembly recalled “its decision aimed at extending the jurisdiction of the African Court of Justice and Human Rights to hear international crimes” and requested “the [AU] Commission in collaboration with all stakeholders to speed up the process.”115 Shortly thereafter, in June 2014, at its 23rd summit in Malabo, Equatorial Guinea, the AU Assembly adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol).116 The Malabo Protocol consists of two parts: the actual protocol and the statute of the envisaged court which is annexed to the protocol (Malabo Protocol (Annex)). Before turning to the Malabo Protocol’s content, a caveat is in order: The Malabo Protocol is a document which is not readily accessible. First of all, it must be read 110 AU Assembly’s Twelfth Ordinary Session, Addis Ababa, Ethiopia, 1–3 February 2009, Assembly/AU/Dec.213(XII), para. 9. 111 AU Assembly’s Thirteenth Ordinary Session, Sirte, Libya, 1–3 July 2009, Assembly/AU/Dec. 245(XIII) Rev. 1, para. 5. 112 Max Du Plessis, Implications of the AU Decision to Give the African Court Jurisdiction over International Crimes, Institute for Security Studies, Paper No. 235 (June 2012), 4. 113

A total of 49 African civil society organisations and international organisations with a presence in Africa expressed concerns to that effect in an open letter to relevant officials of AU Member States. Available at: http://www.issafrica.org/anicj/uploads/Letter_on_African_Court_May_2012_FINAL. pdf (accessed on 21 April 2015). See also: ibid., 4–5. 114 The charges against Kenyatta were withdrawn in late 2014. See ICC, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta, Press Release of 5 December 2014, available at: http://www.icc-cpi.int/en_menus/ icc/press%20and%20media/press%20releases/Pages/otp-statement-05-12-2014-2.aspx (accessed on 21 April 2015). 115 AU Assembly’s Twenty-Second Ordinary Session, Addis Ababa, Ethiopia, 30–31 January 2014, Assembly/AU/Dec.493(XXII), para. 13. 116 AU Assembly’s Twenty-Third Ordinary Session, Malabo, Equatorial Guinea, 26–27 June 2014, Assembly/AU/Dec.529(XXIII), para. 2 (e). The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol) is available via: http:// www.au.int/en/treaties (accessed on 21 April 2015).

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together with the Merger Protocol to make sense of several of its provisions. Moreover, the haste of the drafting process is clearly evident. Numerous provisions carry titles which are unreflective of parts of their content. Article 46H Malabo Protocol (Annex), for example, is entitled “complementary jurisdiction” but deals, beyond that, with other questions of admissibility.117 Furthermore, there are provisions which are incomplete. The third paragraph of Article 46Ebis Malabo Protocol (Annex), for example, ends in the middle of a sentence. To make matters worse, scarce punctuation generally impairs the readability of the text.

1. Institutional Matters The Malabo Protocol provides for the African Court of Justice and Human and Peoples’ Rights.118 Strangely, this reads like the correct reference to the court it seeks to replace. It does not, however, reflect the functions of the envisaged court which will have three sections – one, dealing with general affairs, one with human and peoples’ rights, and one with international criminal law.119 Despite the fact that the Court will be supplemented by another section which will consist of three chambers (pre-trial chamber, trial chamber, and appellate chamber),120 the number of judges serving the Court will remain at sixteen.121 The allocation of the judges to the respective sections and chambers shall be determined by the Court in its rules of procedure.122 Nonetheless, the Malabo Protocol indicates what its drafters had in mind. When electing the judges, five judges with recognised competence and experience in international law, five judges with recognised competence and experience in international human rights law and international humanitarian law, and six judges with recognised competence and experience in international criminal law shall 117 Art. 46H (2)(c) Malabo Protocol (Annex) enshrines the principle of double jeopardy. Art. 46H (2)(d) Malabo Protocol (Annex) prescribes the inadmissibility where a “case is not of sufficient gravity to justify further action by the Court”. 118

Art. 1 Malabo Protocol (emphasis added).

119

Art. 16 (1) Statute as amended by Art. 6 Malabo Protocol (Annex).

120

Art. 16 (2) Statute as amended by Art. 6 Malabo Protocol (Annex).

121

Art. 2 Malabo Protocol (Annex) leaves the relevant provision of the Statute (Art. 3 (1)) untouched. 122

Art. 16 (3) Statute as amended by Art. 6 Malabo Protocol (Annex).

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be elected from amongst the candidates.123 This implies that five judges will serve the general affairs section and the human rights section respectively whereas six judges will serve the international criminal law section. If such a reading is correct, the number of judges dealing with human rights cases will again be reduced. While this is unfortunate and does not bode well for an effective human rights protection, it is by no means the only problem. The six judges with recognised competence and experience in international criminal law will, obviously, have to be assigned to the three chambers of the international criminal law section. While the Malabo Protocol does not explicitly regulate the allocation of judges to the Court’s sections and chambers, it prescribes their quorum. According to Article 10 Malabo Protocol (Annex), the pre-trial chamber shall be duly constituted by one judge, the trial chamber by three judges, and the appellate chamber by five judges.124 Assuming that the Court will follow the principle that a judge who has dealt with a case at one phase of the proceedings may not participate in a subsequent phase of the proceedings,125 a full criminal trial and appeal “would more than wrap up the entire complement of ICL [international criminal law] judges.”126 In light of this, there is every reason to fear that the number of judges is inadequate to render expeditious (criminal) justice, a fear that is amplified in view of the wide reach of the international criminal law section’s jurisdiction.127 That said it is time to take a closer look at the newcomer.

2. The International Criminal Law Section a) Jurisdiction ratione materiae Pursuant to Article 28A (1) Malabo Protocol (Annex), the international criminal law section will have jurisdiction over a total of fourteen crimes, namely 1) genocide, 123

Art. 6 (3) Statute as amended by Art. 4 Malabo Protocol (Annex).

124

Art. 21 (3)–(5) Statute as amended by Art. 10 Malabo Protocol (Annex).

125

Notably, the Malabo Protocol has no provision comparable to Art. 39 (4) Rome Statue which stipulates that “Judges assigned to the Appeals Division shall serve only in that division” and further holds “that under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case”. 126

Du Plessis (note 112), 7.

127

Ibid.

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2) crimes against humanity, 3) war crimes, 4) the crime of unconstitutional change of government, 5) piracy, 6) terrorism, 7) mercenarism, 8) corruption, 9) money laundering, 10) trafficking in persons, 11) trafficking in drugs, 12) trafficking in hazardous wastes, 13) illicit exploitation of natural resources, and 14) the crime of aggression.128 By comparison, the ICC’s subject matter jurisdiction extends to just four crimes, namely genocide, crimes against humanity, war crimes, and the crime of aggression.129 At present, it exercises its jurisdiction only in view of the first three of these crimes which are defined in Articles 6–8 Rome Statute. Should an amendment of the Rome Statute be successful, the ICC will, in the not so distant future, also exercise jurisdiction over the crime of aggression.130 The four crimes under the ICC’s jurisdiction, and therewith four of the fourteen crimes under the jurisdiction of the international criminal law section of the African Court,131 constitute international criminal law stricto sensu, which signifies that they incur direct individual responsibility under international law.132 While these crimes represent “the most serious crimes of concern to the international community as a whole”133 there are numerous other crimes which have international implications and attract international concern. Those crimes are either referred to as transnational crimes134 or treaty crimes.135 They are, as the latter term implies, enshrined in international, regional, or sub-regional treaties which define specific acts and oblige States to 128 Art. 28A (2) Malabo Protocol (Annex) entitles the AU Assembly, with the consent of the States parties, to extend the jurisdiction to incorporate additional crimes. 129

Art. 5 Rome Statute.

130

The crime of aggression (Art. 8bis Rome Statute) and the conditions for the ICC’s exercise of jurisdiction over it (Arts. 15bis and 15ter Rome Statute) were defined at the First Review Conference of the Rome Statute in 2010. See: RC/Res.6 of 11 June 2010, Annex I. 131

Art. 28B Malabo Protocol (Annex) (genocide), Art. 28C Malabo Protocol (Annex) (crimes against humanity), Art. 28D Malabo Protocol (Annex) (war crimes), and Art. 28M Malabo Protocol (Annex) (crime of aggression). The definitions of these crimes largely follow the definitions provided in the Rome Statute. Notably, a number of additional acts constituting genocide/war crimes have been introduced. Moreover, the definition of the crime of aggression is more expansive than its international counterpart, including acts of aggression committed by non-State actors. 132 Claus Kress, International Criminal Law, MPEPIL, paras. 10 and 15, available via: http://opil. ouplaw.com/home/EPIL (accessed on 21 April 2015). 133

Art. 5 (1) Rome Statute.

134

Robert Cryer et al., An Introduction to International Criminal Law and Procedure (3rd ed. 2014), 329. 135

Kai Ambos, Treatise on International Criminal Law, vol. II (2014), 222.

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criminalise these acts under their domestic legal systems. In contrast to international crimes stricto sensu, treaty crimes do not in and of themselves establish individual criminal responsibility.136 In other words no international criminal jurisdiction exists in view of these crimes because the treaties which define them do not create crimes under international law. This will change once the Malabo Protocol enters into force. Many of the crimes defined thereunder currently constitute treaty crimes. With the Malabo Protocol’s entry into force they will incur direct individual criminal responsibility. Lifting a large number of crimes above the level of treaty crimes, points to the importance that the AU accords to these crimes. Indeed, crimes such as corruption, money laundering, trafficking in persons, or drugs undeniably plague the African continent. The question is whether the adoption of a large number of crimes which have heretofore not been a part of international criminal law is not too ambitious. One of the challenges arising in this context is to reach agreement on the definition of these crimes. It is here, where the problems start. To define the new crimes of the Malabo Protocol, its drafters heavily relied on the definitions provided by the international, regional, or sub-regional treaties from which they stem.137 However, some of these treaties, in particular the regional ones, 136 137

Ibid., 223.

Art. 28E Malabo Protocol (Annex) (the crime of unconstitutional change of government) largely reflects Art. 23 African Charter on Democracy, Elections and Governance, 30 January 2007, available via: http://www.au.int/en/treaties (accessed on 21 April 2015); Art. 28F Malabo Protocol (Annex) (piracy) is an almost verbatim reproduction of Art. 101 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3; Art. 28G Malabo Protocol (Annex) (terrorism) is based on Arts. 1 (3) and 3 OAU Convention on the Prevention and Combating of Terrorism, 14 July 1999, UNTS 2219, 179; Art. 28H Malabo Protocol (Annex) (mercenarism) reflects Arts. 1–3 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989, UNTS 2163, 75; Art. 28I Malabo Protocol (Annex) (corruption) originates from Arts. 1 and 4 (1)(a)–(h) African Union Convention on Preventing and Combating Corruption, 1 July 2003, ILM 43 (2003) 5; Art. 28Ibis Malabo Protocol (Annex) (money laundering) reproduces Art. 23 (1) United Nations Convention against Corruption, 31 October 2003, UNTS 2349, 41; Art. 28J Malabo Protocol (Annex) (trafficking in persons) resembles Art. 3 (a)–(c) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, UNTS 2237, 319; Art. 28K Malabo Protocol (Annex) (trafficking in drugs) is modelled after Art. 3 (1)(a)(i)–(iv) United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, UNTS 1582, 92; Art. 28L Malabo Protocol (Annex) (trafficking in hazardous wastes) is Art. 9 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes in Africa, 30 January 1991, UNTS 2101, 177; Art. 28Lbis Malabo Protocol (Annex) (illicit exploitation of natural resources) reproduces Art. 12 Protocol against the

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have not seen high ratification rates. The African Charter on Democracy, Elections and Governance which underlies the crime of unconstitutional change of government has been ratified by less than half of the AU Member States.138 In view of this crime, one scholar contends that the Charter is “a codification of […] a quintessential custom in Africa: the rejection of UCG [unconstitutional change of government].”139 It may amount to an African custom to reject an unconstitutional change of government. Whether its criminalisation is supported by anything, let alone custom, is more than questionable. Another instrument with an equally poor ratification rate is the Bamako Convention which underlies the crime of trafficking in hazardous wastes.140 Moreover, the definition of the crime of illicit exploitation of natural resources originates from a sub-regional treaty.141 Hence, it is uncertain whether a majority of African States would subscribe to this instrument and its content. This indicates that in view of certain crimes there may be, in fact, very little agreement on their definition. A closer look at the definitions reveals that not all of them have been drafted with the necessary level of diligence. This is best illustrated by way of example. According to Article 28E (1)(f) Malabo Protocol (Annex), “any substantial modification to the electoral laws in the last six (6) months before the elections without the consent of the majority of the political actors” amounts to the crime of unconstitutional change of government. Does this mean that electoral laws in Zimbabwe could be substantially modified at the last minute, because long nurtured supporters of Robert Mugabe, who after close to 35 years at the helm seems to be determined to stay on, account for the majority of political actors? It does not seem wise to use the majority of political actors

Illegal Exploitation of Natural Resources, 30 November 2006, available at: http://www.icglr.org/ images/LastPDF/Protocol_against_the_Illegal_Exploitation_of_Natural_Resources.pdf (accessed on 21 April 2015). 138

23 States parties. Status list available via: http://www.au.int/en/treaties (accessed on 21 April

2015). 139

Ademola Abass, The Proposed International Criminal Jurisdiction for the African Court: Some Problematic Aspects, Netherlands International Law Review 60 (1) (2013), 27, 34. 140

25 States parties. Status list available via: http://www.au.int/en/treaties (accessed on 21 April

2015). 141 Author of the Protocol against the Illegal Exploitation of Natural Resources is the International Conference on the Great Lakes Region, an inter-governmental organisation composed of twelve Member States, namely Angola, Burundi, Central African, Democratic Republic of Congo, Republic Democratic Republic of Congo, Kenya, Uganda, Rwanda, South Sudan, Sudan, Tanzania, and Zambia. For more information, see: http://www.icglr.org/index.php/en/ (accessed on 21 April 2015).

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as a qualifier without defining certain criteria regarding the legitimacy of such actors.142 The same article, time and again, refers to democratically elected governments which shall not be ousted, replaced, etc. Article 28E (2) Malabo Protocol (Annex) stipulates that “for the purpose of this Statute, ‘democratically elected government’ has the same meaning as contained in AU instruments.” To find out which governments fall within the protective scope of the provision, the first instrument to turn to is, for obvious reasons, the African Charter on Democracy, Elections and Governance. Surprisingly, the said instrument contains no such definition. To which instrument should one turn next? And what is meant by the term ‘instrument’ in the first place? Definitional problems appear in view of a number of other provisions. Article 28Lbis Malabo Protocol (Annex), for instance, makes the illicit exploitation of natural resources a crime. In this regard, it would be helpful to know which resources are ‘natural resources’ within the meaning of the provision. This applies all the more as the term ‘natural resources’ is used inconsistently throughout various instruments in Africa.143 Another example of negligent drafting is provided by Article 28K Malabo Protocol (Annex). According to its sub-paragraph (1)(b) the “cultivation of opium poppy, coca bush or cannabis plant” amounts to illicit trafficking in drugs. Considering that the cannabis plant, to name only one of the plants can be employed for medical and industrial purposes, criminalising its cultivation irrespective of the purpose of that cultivation seems far too general.144

142

For further observations on the crime of unconstitutional government see: Max Du Plessis, Shambolic, Shameful and Symbolic: Implications of the African Union’s Immunity for African Leaders, Institute for Security Studies, Paper No. 278 (November 2014), 5. 143 See: Art. III (a) African Convention on the Conservation of Nature and Natural Resources, 15 September 1968, UNTS 1001, 3; Art. V (1) African Convention on the Conservation of Nature and Natural Resources (Revised Version), 1 July 2003 (not yet in force), available via: http://www.au.int/ en/treaties (accessed on 21 April 2015); Art. 1 Protocol against the Illegal Exploitation of Natural Resources. 144 By comparison, Art. 3 (1)(a)(ii) 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances reads that the “cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs” shall constitute a criminal offence (emphasis added). Seemingly, part of the provision went missing on its way to the Malabo Protocol.

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All this is not only unfortunate but highly problematic from a legal perspective. An act which constitutes a crime and, therefore, incurs criminal responsibility must be precisely defined. Vague definitions which leave too much discretion to the judiciary may contravene the principle of legality.145 On a final note: the expansive reach of jurisdiction as such could easily overburden the international criminal law section of the African Court. In this context, it is worth recalling that the number of judges with recognised competence and experience in international criminal law stands at six. It is inconceivable how such a small number of judges (possibly all of them on a part-time basis)146 are expected to handle the potential workload in an efficient and timely manner.

b) Jurisdiction ratione personae The wide range of subject matter jurisdiction is not the only aspect in which the recent African initiative surpasses the confines of international criminal law as we know it. So far, under international criminal law, only natural persons incur responsibility when committing international crimes. Accordingly, the ICC’s jurisdiction is limited to natural persons.147 The Malabo Protocol, in contrast, stipulates that the international criminal law section of the African Court “shall have jurisdiction over legal persons, with the exception of States.”148 It is beyond doubt that the activities of (transnational) corporations can have devastating effects – from resource plunder and environmental damage to the widespread disregard of human rights. In fact, bringing the prosecution of corporations within the jurisdiction of the ICC was already suggested during the drafting process of the Rome Statute.149 In the end, the proposal was 145

Claus Kress, Nulla Poena Nullum Crimen Sine Lege, MPEPIL, para. 29, available via: http:// opil.ouplaw.com/home/EPIL (accessed on 21 April 2015). He refers to this aspect of the legality principle as the principle of certainty (nullum crimen sine lege certa). 146

All judges except the President and the Vice-President will perform their functions on a part-time basis (Art. 5 Malabo Protocol (Annex) reproduces the relevant provision of the Statute (Art. 8 (4)). Notably, Art. 5 Malabo Protocol (Annex) reintroduces the possibility that the AU Assembly may provide for full time judges (Art. 8 (5) of the amended Statute). 147

Art. 25 (1) Rome Statute.

148

Art. 46C (1) Malabo Protocol (Annex).

149

See: Report of the Preparatory Committee on the Establishment of an International Criminal Court, vol. II, 49–51, U.N. Doc. A/CONF.183/2/Add.1 (1998), 31.

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defeated. One concern was that not all States provide for the criminal responsibility of legal persons under their domestic systems. This, it was feared, could lead to difficulties in the application of the complementarity principle, which holds that a case before the ICC is only admissible when the State concerned is unable or unwilling to deal with it.150 Another concern was directed at evidentiary problems. Establishing proof of criminal conduct of corporations is very difficult due to their intricate (transnational) structures.151 This would not only make investigations difficult but also costly. It is unclear whether the AU has dealt with these concerns.

c) Immunity The most prominent – and arguably the most alarming – aspect of the Malabo Protocol is enshrined in Article 46Abis Malabo Protocol (Annex). It reads: No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.

The provision, which was introduced at the very last minute,152 is highly problematic in terms of wording as well as content. On the one hand, the scope of the provisions is far from clear. Who is meant by “anybody acting or entitled to act” in such capacity? Does the notion, as can be inferred from the wording, encompass somebody acting in the capacity of a Head of State or Government without being entitled to that effect? Moreover, the reference to “other senior state officials” is overly broad, shielding an unspecified range of high-ranking office holders from the jurisdiction of the Court’s international criminal law section. As far as content is concerned, the provision is inconsistent with international criminal law. In this context, the concept of immunity must briefly be illuminated. International law distinguishes between functional and personal immunity. The former pertains to officials when acting on behalf of a State. Their acts are attributed

150 Kai Ambos, Article 25, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd ed. 2008), 743, 746, para. 4. 151

Ibid.

152

Du Plessis (note 142), 9.

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to the State. Accordingly the State, and not the official, is responsible for them.153 Personal immunity pertains to officials of particular importance. The purpose of this immunity, which, in contrast to functional immunity, is only enjoyed while in office, is to guarantee the unobstructed exercise of representative functions in the international arena.154 The fact that the persons bestowed with immunity are the persons in a position to commit or to order the commission of international crimes obviously generates tensions between the concept of immunity and international criminal law. However, contemporary international law has resolved this tension “predominantly in favor of international criminal law.”155 It is, nowadays, well recognised that functional immunity is no bar to the prosecution of international crimes neither before international nor before national courts.156 Personal immunity, as it stands, is no longer a bar to the prosecution of international crimes before international courts.157 Article 27 Rome Statute reflects the above account. Therefore, Article 46Abis Malabo Protocol (Annex) is inconsistent with international criminal law. Article 46Abis Malabo Protocol (Annex) also runs contrary to the AU Constitutive Act. Article 4 AU Constitutive Act enshrines the principles according to which the Union shall function. Sub-paragraph (o) lists “the condemnation and rejection of impunity” among these principles. The principle is reiterated in the Malabo Protocol’s Preamble. The immunity provision clearly sidesteps this principle by contributing to the perpetuation of impunity for high-ranking officials.158 Finally, the provision seems to make little sense in view of the crimes under the jurisdiction of the international criminal law section of the African Court. A number of these crimes are most likely to be committed by those who fall within the ambit of the immunity provision.159 The most obvious example is the crime of unconstitutional change of government which, among other things, declares the “refusal by an incumbent 153 Gerhard Werle/Florian Jessberger, Principles of International Criminal Law (3rd ed. 2014), 271, para. 724. 154

Ibid., 271–272, para. 725.

155

Ibid., 273, para. 727.

156

Ibid., 273–275, paras. 728–733.

157

Ibid., 276–277, paras. 734–736.

158

For further observations as to how Art. 46Abis Malabo Protocol (Annex) conflicts with African instruments, see: Du Plessis (note 142), 10–12. 159

Ibid., 8.

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government to relinquish power to the winning party or candidate after free, fair and regular elections” to be a criminal act under the provision.160 Ironically, it is the very immunity provision that may constitute an additional incentive to commit that crime.161 Unsurprisingly, Article 46Abis Malabo Protocol (Annex) provoked some strong reactions. Less than three months after the adoption of the Malabo Protocol, 143 civil society organisations and international organisations with a presence in Africa had signed a call in which they express their “deep dismay and opposition” to the adoption of the Malabo Protocol, aptly pointing out that “immunity indirectly legitimizes the chronic disease of impunity, as it takes away the prospect of securing accountability before the African Court for persons who may be responsible for serious crimes.”162

d) Complementarity Principle Pursuant to Article 46H (1) Malabo Protocol (Annex), the international criminal law section’s jurisdiction “shall be complementary to that of the National Courts, and to the Courts of the Regional Economic Communities where specifically provided for by the Communities.” At the moment, none of the courts of the Regional Economic Communities (RECs) deals with international crimes.163 Hence, part of the provision is currently irrelevant. Should the RECs establish jurisdiction over international 160

Art. 28E (1)(e) Malabo Protocol (Annex).

161

Du Plessis (note 142), 8.

162

Human Rights Watch, Call for African States to Reject Immunity for Serious Crimes by African Civil Society Organisations and International Organisations with a Presence in Africa, August 2014, available at: http://www.hrw.org/sites/default/files/related_material/August%202014%20Group %20Declaration%20on%20Immunity%20and%20African%20Court.pdf (accessed on 21 April 2015). 163

Of eight RECs, listed on the AU’s website, four have established operating courts. The jurisdiction of the Common Market for Eastern and Southern Africa Court of Justice is available via: http:// comesacourt.org (accessed on 21 April 2015); the jurisdiction of the East African Court of Justice via: http://eacj.org (accessed on 21 April 2015); and the jurisdiction of the Economic Community of West African States Community Court of Justice via: http://www.courtecowas.org (accessed on 21 April 2015). The Southern African Development Community Tribunal has been suspended in 2010 but it is meant to be re-established with a limited mandate, see: http://www.sadc.int/about-sadc/sadcinstitutions/tribun/ (accessed on 21 April 2015). In 2012, the expansion of the jurisdiction of the East African Court of Justice to, among others, crimes again humanity was proposed. See: http://www.eac. int/news/index.php?option=com_content&view=article&id=729:25th-extraordinary-meeting-ofcouncil-of-ministers-concludes&catid=48:eac-latest&Itemid=69 (accessed on 21 April 2015). The proposal has not yet been implemented.

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crimes, the complementarity principle will be twofold, in the sense that the international criminal law section will only deal with a case once a national court and a court of a REC turned out to be unwilling or unable to deal with it.164 Practical difficulties could arise against the backdrop that many African States are members of more than one REC. The question that arises is which of these courts should be considered in the context of complementarity.165 Strangely, the RECs are not mentioned in the second paragraph of Article 46H Malabo Protocol (Annex) which enshrines the essence of the complementarity principle. Article 46H (2)(a) states that a case should be determined inadmissible where it “is being investigated or prosecuted by a State which has jurisdiction over it.” However, Article 46H (2)(a) should read that a case should be determined inadmissible where it “is being investigated or prosecuted by a State or Regional Economic Community which has jurisdiction over it.”166 Also puzzling is the provision’s silence on the ICC. Given the fact that 34 of a total of 54 AU Member States are States parties to the Rome Statute,167 it seems more than appropriate to address the relationship between the courts. This applies all the more as both courts will, in part, adjudicate the same crimes.168 By a strange twist of fate, the absence of a provision on the relationship of both entities leads to a situation in which the ICC continues to be an avenue for the prosecution of the most serious crimes, irrespective of a perpetrator’s position. This also means that the immunity provision of Article 46Abis Malabo Protocol (Annex) will not entirely exempt African leaders from prosecution.

3. The Human Rights Section While the Malabo Protocol is largely devoted to the incorporation of the international criminal law section, it also affects the human rights section. That the number 164

Ademola Abass, Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges, European Journal of International Law 24 (3) (2013), 933, 944. 165

Ibid., 945.

166

The same applies in view of Art. 46H (2)(b), (3), and (4) Malabo Protocol (Annex).

167

See ICC, African States, available at: http://www.icc-cpi.int/en_menus/asp/states%20parties/ african%20states/Pages/african%20states.aspx (accessed on 21 April 2015). 168

For a good discussion of the issue, see: Du Plessis (note 112), 10–11.

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of judges dealing with human rights is likely to be reduced has already been pointed out. Beyond that, the Malabo Protocol modifies the provision regarding individual access. Under the terms of the Protocol only the following are eligible to submit cases to the Court: African individuals or African Non-Governmental Organizations with Observer Status with the African Union or its organs or institutions, but only with regard to a State that has made a Declaration accepting the competence of the Court to receive cases or applications submitted to it directly.169

The word ‘African’ introduces a new limitation that does not make any sense with regard to individual access. Apart from citizen rights which are limited to citizens, human rights provisions generally pertain to all individuals. The Banjul Charter is no exception to this rule. It enshrines numerous rights to be enjoyed by every individual. It is, therefore, inconceivable why only African individuals should be able to approach the Court. At first glance, it seems as if at least the strict accreditation requirements for NGOs were abandoned. However, the reference to NGOs with observer status, as opposed to NGOs accredited to the AU, does not ease the requirements in the slightest way. The difference in wording stems from an inconsistent use of terms. The requirements are enshrined in a document, entitled “criteria for granting observer status and for a system of accreditation within the AU.”170 While the drafters of the Merger Protocol chose to refer to NGOs accredited to the AU, the drafters of the Malabo Protocol chose differently. The underlying criteria are in any case the same. Another effect on the human rights section is of a rather indirect nature. Adding an international criminal law section will have enormous financial implications.171 The Court will have to be supplemented with a prosecutor’s office,172 a victims and witnesses unit, as well as a defence counsel and detention management unit, all to be set up within the registry.173 Their adequate funding is crucial to ensure the conduct of fair 169

Art. 30 (f) Statute as amended by Art. 16 Malabo Protocol (Annex).

170

The different versions in the two protocols stem from an inconsistent use of terms. See: EX.CL/ 195 (VII) Annex IV, Criteria for Granting Observer Status and for a System of Accreditation within the AU, July 2005 (emphasis added). 171

For a detailed account, see: Du Plessis (note 112), 9–10.

172

Art. 22A Malabo Protocol (Annex).

173

Art. 22B Malabo Protocol (Annex).

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and expeditious trials. Given that the rationale behind the merger of the AfCHPR and CJ were financial constraints, one can only wonder how the AU intends to deal with the substantially bigger burden of financing the new Court. To provide a point of reference: the ICC’s 2015 programme budget stands at €130 million, its staffing table provides for 790 posts.174 In this context, it must be borne in mind that the ICC has jurisdiction over three crimes. The international criminal law section of the African Court will have jurisdiction over fourteen crimes and could, as a result, be much busier than the ICC. While not directly comparable, the AfCHPR’s operating budget for 2015, which stands at $8 (about €7.4) million, gives insight as to how much the AU currently affords to its judicial institution.175 The degree of ignorance or naivety with which the consequences of an extension of the Court’s mandate have been met is frightening. This is best evidenced by an assessment, which was delivered late in the drafting process. It states, that the Malabo Protocol “builds upon the existing Court, and only marginally adds upon the required structure and human resources.”176 There is every reason to fear that already limited resources will be further strained. As a result, there is the possibility that none of the three sections will function either efficiently or effectively. The expansion of the merged Court may, thus, endanger an effective human rights protection.

4. Legal Complexities A number of legal complexities surround the adoption of the Malabo Protocol. First of all, there seems to be disagreement as to whether a treaty prior to its entry into force (the Merger Protocol) can actually be amended. One scholar contends that amendments are reflections of the parties to an instrument and, therefore, only “warranted by the operationalization of a treaty.”177 Accordingly, they are impermissible in view of international legal instruments that have not yet entered into force. 174

Resolution ICC-ASP/13/Res.1 of 17 December 2014.

175

Executive Council Twenty-Fifth Ordinary Session, Malabo, Equatorial Guinea, 20–24 June 2014, EX.CL/813(XXV), para. 3. 176 Executive Council Twenty-Second Ordinary Session, Addis Ababa, Ethiopia, 21–25 January 2013, EX.CL/773(XXII) Annex 2 Rev., para. 4 (emphasis added). A table of minimum staff requirements and the respective costs is appended to this document. 177

Abass (note 139), 45.

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Should this hold true, then there would be no basis for the amendments discussed above. However, in line with international treaty law the amendment of treaties not yet in force is not only possible but happens.178 Given the – sometimes substantial – time lag between the adoption of international treaties and their entry into force, it seems, in fact, unreasonable to prevent States or international organisations from introducing amendments (to possibly outdated provisions) prior to a treaty’s entry into force. Another argument is of less general nature. It holds that amendments to the Merger Protocol “can be contemplated only once it has entered into force and the AU Court is operational since Article 58 (2) Statute states that a proposed amendment can only be adopted by the Assembly “after the Court has given its opinion on it.”179 Properly the Statute’s entry into force is a condition precedent for any amendment to be passed.”180 This argument is likewise unconvincing as it is based on a provision of a Statute that is not in force. From a legal perspective, the amendment of the Merger Protocol prior to its entry into force is, therefore, possible. One would assume that the AU, with the amendment of the Merger Protocol, intended to render its original version defunct. Yet, the Malabo Protocol contradicts this assumption. In fact, some of its transitional provisions anticipate the entry into force of the Merger Protocol as well as the operationalisation of the merged Court.181 In that case, part of the following provision may prove futile. At the entry into force of this Protocol, until a Member State ratifies it, any jurisdiction which has hitherto been accepted by such Member State with respect to either the African Court on Human and Peoples’ Rights or the African Court of Justice and Human Rights shall be exercisable by this Court.182

178 Karine Ardault/Daniel Dormoy, Article 40, in: Olivier Corten/Pierre Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary, vol. II (2011), 978, 982, para. 14. Examples are provided in: Anthony Aust, Modern Treaty Law and Practice (2007), 275–276. 179

Emphasis added.

180

Gino J. Naldi/Konstantinos D. Magliveras, The African Court of Justice and Human Rights: A Judicial Curate’s Egg, International Organizations Law Review 9 (2) (2012), 383, 441. 181

Chapter II (Arts. 5–7) Malabo Protocol. With numerous references to three different courts, the transitional provisions by themselves are not very straightforward. The fact that Chapter II Malabo Protocol largely fails to clarify which provisions of the Merger Protocol are replaced complicates any attempt to make sense of its content. 182

Art. 6bis Malabo Protocol.

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When amending the Merger Protocol, the drafters of the Malabo Protocol apparently noticed the absence of a provision that preserves the validity of ratifications and declarations made in view of the AfCHPR. To avoid this loss, they inserted the above Article. However, should the Merger Protocol enter into force prior to the entry into force of the Malabo Protocol the ratifications and declarations which were made in view of the AfCHPR would arguably be gone before the Malabo Protocol could come to their rescue. One final point: it may be recalled that the Merger Protocol, albeit in a questionable manner, elevated the merged Court to an organ of the AU.183 The Malabo Protocol deletes the respective provision without substitution.184 Hence, it is unclear where within the framework of the AU the African Court of Justice and Human and Peoples’ Rights will have its place. Meanwhile, the AfCHPR continues its work, and one must hope that it will do so for some time in the future. Ironically, the slow process of treaty ratification in Africa offers reason for hope that the Malabo Protocol with all its uncertainties may still be a long way down the line.

V. Conclusion Institutional responses to human rights violations in Africa took a long time to develop. Concerns for sovereignty impeded any meaningful debate about the treatment of individuals let alone a mechanism to enforce their rights. The first institutional response still suffered from the States’ deeply embedded reluctance to yield to scrutiny. With the inception of the AfCHPR there was hope that this would slowly change. After all, the first continental court is a human rights court. However, most States still lack the courage to open the Court to individual access. As a result, the AfCHPR cannot yet play its role fully. Unfortunately, recent developments do not augur well for the AfCHPR and an effective human rights protection. The envisaged merger would not only end the Court’s existence as an independent entity. It further restricts access to what remains – 183

Art. 3 Merger Protocol.

184

Chapter I Malabo Protocol.

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that is the human rights section of the merged Court. Matters could get worse if an international criminal law section is introduced to the merged Court. While, generally speaking, this could be an important step to end impunity for massive violations of human rights, the context of the drafting process suggests that other motives are at play. In fact, the AU seems to be more concerned with the fact that the ICC targets African leaders than with ending impunity. The accuracy of this hypothesis is underscored by the immunity provision enshrined in Article 46Abis Malabo Protocol. With this provision the AU not only rescinds one of the breakthroughs of modern international criminal law, namely the irrelevance of official capacity, it also undoes the credibility of its claims regarding impunity. If implemented, the Malabo Protocol will, in all likelihood, amount to a serious disservice to an effective protection of human rights. An ever smaller number of judges will serve a human rights section no longer open to non-African individuals. Moreover, the funding problems with which the whole entity is destined to grapple will negatively affect the efficiency of its work. The AU must ask itself whether it wants to embark on new ambitious projects while the old ones that hold potential linger unfinished. If genuinely interested in ending human rights violations and impunity, the fragile progress that has been made with the AfCHPR should be strengthened, not least by accelerating the pace of ratification of its protocol. After all, African States must finally muster the courage to liberate human rights from sovereignty’s tight grip.

GERMAN PRACTICE

At last! Germany Admits Illegality of the Kosovo Intervention STEFAN TALMON(

I. Introduction From 24 March to 11 June 1999, the North Atlantic Treaty Organisation (NATO) conducted a controversial 78-day bombing campaign against the Federal Republic of Yugoslavia (FRY) (Serbia and Montenegro) in order to avert an impending humanitarian catastrophe in the Yugoslav province of Kosovo. Germany, as a NATO Member State, contributed fourteen ECR-Tornado fighter aircraft which flew some 500 sorties – mostly for reconnaissance purposes but also against Yugoslav anti-aircraft positions.1 The United Nations (UN) Security Council considered the Kosovo situation on several occasions. In Resolution 1199 (1998) the Council expressed its grave concern at “the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army” and determined that the deterioration of the situation in Kosovo constituted “a threat to peace and security in the region.”2 However, at the time NATO conducted its bombing campaign the UN Security Council had not authorised the use of force by NATO Member States. The Russian Federation made it clear from the outset that it would veto any resolution authorising the use of force against the FRY. ( Director at the Institute for Public International Law, University of Bonn; Supernumerary Fellow of St. Anne’s College, Oxford; Barrister, 20 Essex Street Chambers, London. 1 Nina Werkhäuser, Kosovo: A Watershed for German Foreign Policy, Deutsche Welle (24 March 2004), available at: http://www.dw.de/kosovo-a-watershed-for-german-foreign-policy/a-1150294 (accessed on 9 March 2015). See also Federal Constitutional Court (Bundesverfassungsgericht), 2 BvR 2660/06 of 13 August 2013, available at: https://www.bundesverfassungsgericht.de/entscheidungen/ rk20130813_2bvr266006.html (accessed on 22 September 2014). 2

SC Res. 1199 of 23 September 1998, preambular paras. 6, 14.

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The Kosovo intervention raised the question of whether international law allows for the use of force, beyond the right to self-defence, if the Security Council fails to meet its primary responsibility for the maintenance of international peace and security. In particular, it raised the question of whether international law knows of a last resort right of unilateral ‘humanitarian intervention’ in order to put a stop to massive human rights violations and to protect the population of a State from an unfolding humanitarian catastrophe.3 A number of States clearly rejected the idea of a right of unilateral humanitarian intervention and denounced NATO’s intervention in the FRY as illegal under international law. The Russian Federation attempted to have NATO’s intervention condemned by the UN Security Council as a ‘flagrant violation’ of Articles 2 (4), 24, and 53 UN Charter.4 That this failed by a vote of 12 to 3 is perhaps not surprising considering that five Council members, including three of the five permanent vetowielding members, were taking part in the Kosovo intervention.5 But the intervention was overwhelmingly rejected by both the Group of 77 developing countries (comprising some 130 Member States at the time) and by the 113 Member States of the Non-Aligned Movement. At their 23rd annual meeting in New York on 24 September 1999 the Foreign Ministers of the Group of 77 “rejected the so-called right of humanitarian intervention, which had no basis in the UN Charter or in international law.”6 In April 2000 the Ministers of Foreign Affairs of the Movement of NonAligned Countries also rejected “the so-called ‘right’ of humanitarian intervention, which has no legal basis in the UN Charter or in the general principles of international law.”7 3 Cf. International Court of Justice (ICJ), Legality of Use of Force (Yugoslavia v. Germany), Provisional Measures, CR 1999/18, Public sitting held on 11 May 1999, 7, para. 1.3.1, available at: http:// www.icj-cij.org/docket/files/108/4553.pdf (accessed on 22 September 2014). 4

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

5

See UN Doc. S/1999/328 (1999). This draft resolution, submitted by Belarus, the Russian Federation, and India, was voted upon on 26 March 1999; see UN Doc. S/PV.3989 (1999), 6. China, Namibia, and the Russian Federation voted for the Resolution. 6 The Group of 77, Declaration on the Occasion of the Twenty-Third Annual Ministerial Meeting of the Group of 77, New York, 24 September 1999, para. 69, available at: http://www.g77.org/doc/ Decl1999.html (accessed on 22 September 2014). 7

Movement of the Non-Aligned Countries, XIII Ministerial Conference, Cartagena (Colombia), 8–9 April 2000, Final Document, para. 263, available at: http://www.nam.gov.za/xiiiminconf/minconf. pdf (accessed on 22 September 2014). See also Final Document of the XIII Conference of Heads of State or Government of the Non-Aligned Movement, Kuala Lumpur, 24–25 February 2003, para. 16,

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In 1999, Germany took the position that “the NATO air operations were permissible in international law.” It thus came as no little surprise when in March 2014, on the eve of the 15th anniversary of the beginning of the bombing campaign, Gerhard Schröder, Germany’s Federal Chancellor at the time of the bombings, revealed that Germany had been aware all along that the alliance’s bombardment of the FRY constituted “a violation of international law.” This short paper contrasts former Chancellor Gerhard Schröder’s 2014 statement with the German government’s official position in 1999. The paper does not intend to determine which of the two positions is the correct one, i.e. whether NATO’s intervention in the Kosovo conflict was lawful or not under international law,8 but, more modestly, to examine what role the statements of former high-ranking government officials can play in the identification of rules of customary international law. Any customary international law right of humanitarian intervention depends on the practice and opinio juris of States supporting such a right. In the present case the question thus is what counts as Germany’s opinio juris: the 1999 declarations or the 2014 statement?

II. The 2014 Statement by Former Chancellor Gerhard Schröder In a surprising revelation, former German Chancellor Gerhard Schröder told a discussion forum hosted by the weekly newspaper Die Zeit in Hamburg on 9 March 2014 that during the NATO bombardment of Serbia during the Kosovo crisis in 1999 he had “violated international law.” Asked about Russia’s latest moves in Crimea, Schröder, who is closely associated with Russian business interests and is regarded as a friend of Russian President Vladimir Putin, replied: Of course, what is happening in Crimea is also a violation of international law. But do you know why I am a bit more careful with pointing the finger? I am going to tell you at an available at: http://www.nam.gov.za/media/030227e.htm (accessed on 22 September 2014) (“The Heads of State or Government reiterated the rejection by the Non-Aligned Movement of the so-called ‘right’ of humanitarian intervention, which has no basis either in United Nations Charter or in international law”). 8

On this question, see e.g. Christopher Greenwood, Humanitarian Intervention: The Case of Kosovo, Finnish Yearbook of International Law 10 (1999), 141–175; and Louis Henkin et al., Editorial Comments: NATO’s Kosovo Intervention, American Journal of International Law 93 (1999), 824–862.

584 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 event like this; because I did it myself. […] I violated international law. […] When we were faced with the question of how things would develop in the Republic of Yugoslavia, the war in Kosovo, we sent our warplanes, our Tornados, to Serbia, and together with NATO, we bombed a sovereign State without a decision of the Security Council. […] Without there being a decision of the Security Council – it was just like that. And my predecessor [Helmut Schmidt] has criticised this in the strongest terms. He had said, at the time, that without a Security Council decision this is not possible and, formally, he is right. However, I stand by my actions because I still see the flows of refugees and what was looming on the horizon. No question. But formally going to war without a decision of the Security Council was a violation of international law. […]. I believe that Kosovo is the blueprint of what we are currently witnessing in Crimea in two respects. […] formally, in both cases, the [UN] Charter was violated. It was just like that. At the time, we had as a justification only a comment of the Secretary-General of the United Nations and that, in everybody’s judgment, was not sufficient.9 And the fact that it was occasionally said [that] this is the first humanitarian operation that was undertaken was something that was at least doubtful according to the preponderance of views in international law. We have used the argument anyway – no question – but you must understand that in the light of this, in the light of my own actions, this is a situation in which I am more cautious than others.10

Gerhard Schröder’s revelation gave rise to a question at the regular government press conference in Berlin the next day. When the government spokesman Steffen Seibert was asked whether he considered the former Chancellor’s analogy between Crimea and Kosovo where Schröder himself had violated international law “convincing,” he replied: All I want to say is this: what happens in parts of Ukraine and Crimea is, according to the firm conviction of the federal government – and, by the way, its international partners – a

9 On the day of the beginning of NATO’s bombing campaign, UN Secretary-General Kofi Annan had declared: “[…] It is indeed tragic that diplomacy has failed, but there are times when the use of force may be legitimate in the pursuit of peace. In helping maintain international peace and security, Chapter VIII of the United Nations Charter assigns an important role to regional organizations. But as Secretary-General, I have many times pointed out, not just in relation to Kosovo, that under the Charter the Security Council has primary responsibility for maintaining international peace and security – and this is explicitly acknowledged in the North Atlantic Treaty. Therefore, the Council should be involved in any decision to resort to the use of force” (UN Press Release, UN Doc. SG/SM/6938 (1999)). 10

ZEIT-Matinee mit Gerhard Schröder vom 09.03.2014, available at: http://www.youtube.com/ watch?v=EKQ0ykFQav4> (panel discussion transcribed by the author, accessed on 22 September 2014). The relevant parts are at minutes 47:16–48:58 and 50:37–51:48. All translations of German texts by the author.

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clear violation of international law. As a matter of principle, this violation could not be justified even if in the past and in a different location there had also been violations.11

On 13 March 2014, during a government policy statement to the German Parliament, the Bundestag, Chancellor Angela Merkel felt impelled to react to her predecessor’s comparison between Kosovo and Crimea. Merkel said: As these past few days have seen comparisons being drawn with the conflict in Kosovo – something that might also happen in this debate – I take the liberty of making this short aside. After the community of States had been watching for years, more or less powerlessly, Milošević’s so-called wars of ethnic cleansing on the territory of the former Yugoslavia, after sanctions and negotiations had proved ineffective, NATO decided to intervene militarily without a UN mandate, also because Russia had blocked every decision of the UN Security Council for a UN mandate. To put it in no uncertain terms: the situation then is in no way comparable with the situation in Ukraine today. But even if I am engaging with this, in my view, shameful comparison, then, as a matter of principle, the following must apply: Russia’s action in Ukraine clearly constitutes a breach of fundamental principles of international law. This breach would not be diminished if there had been other violations of international law.12

III. Germany’s Position on the Kosovo Intervention in 1999 Calls for NATO to intervene in Kosovo triggered a debate in Germany as to the legal basis for such an intervention.13 On 19 June 1998, Foreign Minister Klaus Kinkel declared in the Bundestag: “NATO is examining military options with direct effect on Kosovo and the whole Federal Republic of Yugoslavia. Such measures require a solid legal basis. Considering the present circumstances this can only be a mandate by the Security Council.”14 At the same time, the Minister of Defence, Volker Rühe, was quoted in The Times on 15 June 1998 as saying that NATO action could be launched 11 German Federal Government (Bundesregierung), Regierungspressekonferenz vom 10. März 2014, available at: http://www.bundesregierung.de/Content/DE/Mitschrift/Pressekonferenzen/2014/03/ 2014-03-10-regpk.html (accessed on 9 March 2015). 12

German Parliament (Deutscher Bundestag), Bundestag Plenarprotokoll (BT-PlPr.) 18/20, 13 March 2014, 1519. 13 This section is based on Stefan Talmon, Changing Views on the Use of Force: The German Position, Baltic Yearbook of International Law 5 (2005), 41, 64–71. 14

German Parliament, Bundestagsdrucksachen (BT-Drs.) 13/242, 19 June 1998, 22422.

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without a new United Nations Security Council resolution.15 The government seems to have been deeply divided on the issue. While on 24 August 1998 the government spokesman, with the backing of the Chancellor, announced that Germany was now ready to participate in a military operation in Kosovo even without the authorisation of the United Nations,16 the Foreign Minister continued to be of the opinion that another resolution was necessary,17 and that Resolution 1199 (1998) could only be seen as a ‘springboard resolution’ for further decisions of the Council.18 On 13 October 1998, the NATO Council authorised limited air operations to prevent a humanitarian catastrophe in Kosovo. NATO Secretary-General Solana summarised the results of the deliberations of the NATO Council, stating, inter alia, that the FRY had not yet complied with the urgent demands of the international community despite Security Council Resolutions 1160 (1998)19 and 1199 (1998), both adopted under Chapter VII UN Charter. He pointed out that the humanitarian catastrophe continued because no concrete measures towards a peaceful solution of the crisis had been taken by the FRY. He also stated that another Security Council resolution containing a clear enforcement action with regard to Kosovo could not be expected in the foreseeable future and that the deterioration of the situation in Kosovo and its magnitude constituted a serious threat to peace and security in the region as explicitly referred to in Resolution 1199 (1998). He therefore concluded that there were legitimate grounds for the Alliance to threaten and, if necessary, to use force.20 During the debate in the Bundestag on the decision of the NATO Council, Foreign Minister Kinkel did not give any justification for the threat of force but simply stated that the government shared the view expressed by the NATO Secretary-General. He added: With this decision, NATO has not and does not want to create a new legal basis that would give it general authority for intervention. The decision of NATO must not become 15 The Times, 15 June 1998, 14, RAF in Kosovo show of force. See also German Parliament, BTDrs.13/242 (note 14), 22437. 16 Frankfurter Allgemeine Zeitung (FAZ), 25 August 1998, 1, Kosovo-Einsatz auch ohne UNMandat? 17 FAZ, 24 September 1998, 1, Kosovo-Resolution des Sicherheitsrats ohne Gewaltanwendung, aber mit Forderungen. 18

FAZ, 23 September 1998, 2, “Sprungbrettresolution” für das Kosovo?.

19

SC Res. 1160 of 31 March 1998.

20

Quoted in German Parliament, BT-PlPr. 13/248, 16 October 1998, 23129.

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a precedent. As far as the Security Council monopoly on force is concerned, we must avoid getting on a slippery slope.21

On 23 March 1999, Chancellor Gerhard Schröder said in a television address to the German people: Tonight NATO has started air strikes against military targets in Yugoslavia. The Alliance wishes to put a stop to grave and systematic violations of human rights and to prevent a humanitarian catastrophe. […] The international community of States cannot stand idly by while the human tragedy in that part of Europe is occurring. We do not wage a war, but we are called upon to enforce a peaceful solution in Kosovo and this includes using military means.22

Three days later, Chancellor Schröder made a statement to the Bundestag on NATO “Operation Allied Force” in which he said: […] on Wednesday night NATO began its air strikes against military targets in Yugoslavia. The Alliance was forced to take this step to stop further serious and systematic violations of human rights in Kosovo and to prevent a humanitarian catastrophe. […] It would have been cynical and irresponsible to sit idly by in the face of this humanitarian catastrophe.23

While the government stated to the Bundestag that “the NATO air operations were permissible in international law,” it did not give any legal basis for these operations. Instead, it declared that the NATO operation was launched when all other means had failed to settle the dispute peacefully and to avert a human catastrophe” and that “the threat and the use of force by NATO were a means of last resort justified by the exceptional circumstances of the crisis in Kosovo.24

The legal basis on which the German government based its military action against the FRY became clear only some time later when Defence Minister Rudolf Scharping, 21

Ibid. See also German Parliament, BT-Drs. 13/11469, 12 October 1998, 2.

22

Bulletin des Presse- und Informationsamts der Bundesregierung 1999, No. 13, 140; as quoted in ICJ, Legality of Use of Force (Yugoslavia v. Germany), Preliminary Objections of the Federal Republic of Germany, 5 July 2000, 17, para. 2.26, available at: http://www.icj-cij.org/docket/files/108/10875.pdf (accessed on 22 September 2014). See also ibid., 12, para. 2.13, where the German government declared that the aim of the air strikes was “to induce President Milošević to withdraw his forces from Kosovo and to co-operate in bringing to an end to the violence”. 23 24

German Parliament, BT-PlPr. 14/31, 26 March 1999, 2571.

German Parliament, BT-Drs. 14/5677, 28 March 2001, 50, and BT-Drs. 18/2560, 16 September 2014, 8. See also id., BT-PlPr. 14/32, 15 April 1999, 2621, and ICJ, Legality of Use of Force (note 3), para. 1.3.1.

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during a speech on 18 April 1999, referred to the government’s right under international law to provide ‘emergency assistance’ (Nothilfe). He stated: Some have claimed that the NATO air operations violate international law. […] This is despicable and wrong. The prohibition of intervention in the internal affairs of a State, which is a consequence of the sovereignty of States, is well-founded. But State sovereignty is just one legally protected right. It finds its limits in the international law obligation to protect basic human rights and to respect the right of peoples to self-determination. These three important rights demand equal respect. They cannot be played off against each other. What we face here is a conflict of aims. […] The Kosovo conflict drives forward a development that has been going on for years: the development of international law with regard to a question which the UN Charter does not answer satisfactorily.25

The Defence Minister referred to some (but not all) of the criteria for ‘humanitarian intervention’ established by the European Parliament in a resolution on 20 April 1994.26 He continued: there must be an extraordinary and extremely serious situation of humanitarian need […]; the United Nations must be unable to take effective action […]; all other means must have failed […]; the military operation must be temporary and proportionate […]; the intervention must not be subject to condemnation by the United Nations.

According to Scharping all criteria were fulfilled in the case of Kosovo. This legal assessment was echoed by both the Chancellor and the Foreign Minister. Chancellor Schröder said on 5 May 1999 in the Bundestag: “In order to alleviate need, we acted on the basis of the right to provide emergency assistance and on the basis of Security Council decisions. For that reason, it really is wrong to constantly question the international legal authority for this action.”27 Foreign Minister Fischer also relied on the idea of ‘emergency assistance.’ In an address to the UN General Assembly he asked how the international community would decide in the future when it came to preventing massive human rights violations against an entire people. For him, two developments were conceivable:

25 Speech of Defence Minister Rudolf Scharping at the German Atlantic Society, Das transatlantische Bündnis auf dem Weg in das 21. Jahrhundert, 19 April 1999, Bulletin No. 18 of 21 April 1999 (CD-ROM version), also partly available at: http://www2.hu-berlin.de/linguapolis/ConsIV99/Trans. Buendnis.htm (accessed on 22 September 2014). See also German Parliament, BT-PlPr. 14/32, 15 April 1999, 2647–2648. 26

Resolution on the Right of Humanitarian Intervention, 9 May 1994, OJ 1994 C 128, 225.

27

German Parliament, BT-PlPr. 14/38, 5 May 1999, 3096 (emphasis added).

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A practice of humanitarian interventions could evolve outside the United Nations system. This would be a very problematic development. The intervention in Kosovo, which took place in a situation where the Security Council had tied its own hands after all efforts to find a peaceful solution had failed, was intended to provide emergency assistance and, ultimately, to protect the displaced Kosovo Albanians. The unity of the European States and the Western Alliance, as well as various Security Council resolutions, were of crucial significance here. However, this step, which is only justified in this special situation, must not set a precedent for weakening the United Nations Security Council’s monopoly on authorizing the use of legal international force. Nor must it become a licence to use external force under the pretext of humanitarian assistance. This would open the door to the arbitrary use of power and anarchy and throw the world back to the nineteenth century. The only solution to this dilemma, therefore, is to further develop the existing United Nations system in such a way that in the future it is able to intervene in good time in cases of very grave human rights violations, but not until all means of settling conflicts peacefully have been exhausted and – this is a crucial point – within a strictly limited legal and controlled framework.28

The government’s view that the participation of German armed forces in the air strikes against the FRY did not contravene international law was shared by the Regional Court of Berlin, which was of “the opinion that international law knows the concept of ‘collective emergency assistance,’ which, in exceptional circumstances and definitely only within strict limits, can justify military interventions without an express Security Council mandate.”29 This opinion must, however, be contrasted with a judgment of the District Court of Berlin Tiergarten.30 The Court acquitted a person accused of signing and distribut28

Verbatim Records of the Plenary Meetings of the 54th Session of the General Assembly, 8th Plenary Meeting, 22 September 1999, UN Doc. A/54/PV.8 (1999), 11–12. 29 Regional Court of Berlin (Landgericht Berlin), Judgment of 3 August 2000, (566) 78 Js 162/99 Ns (5/00), reprinted in: Neue Justiz 54 (2000), 660, 661. See also the decision of the Chief Federal Prosecutor (Generalbundesanwalt) of 21 March 2003, reprinted in: JuristenZeitung 58 (2003), 908, 910: “Exceptions [to the prohibition of the use of force] may be based on the right of self-defence (Art. 51 UN Charter), the provisions on collective security in Chapter VII of the Charter […] and, under certain circumstances, also on unwritten principles of customary international law (confer, for example, the principle of humanitarian intervention […])”. 30 District Court of Berlin Tiergarten (Amtsgericht Tiergarten), Judgment of 2 March 2000, 239 Ds 446/99, reprinted in: Neue Zeitschrift für Strafrecht (NStZ) 20 (2000), 652. See also id., Judgment of 4 November 1999, 254 Cs 883/99145, reprinted in: NStZ 20 (2000), 144–145. A District Court (Amtsgericht) in the German judicial system is the court of first instance for criminal offences punishable by up to four years in prison. In several other proceedings the accused were acquitted on grounds of freedom of speech or on procedural grounds. Only the decision of the Amtsgericht Tiergarten dealt with the question of the legality of the use of force by the NATO against the FRY, and based its decision on the illegality of the operation. The Kammergericht (Higher Regional Court) Berlin stated that it was “dis-

590 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014

ing an advert in a newspaper calling on all members of the German armed forces involved in the war against Yugoslavia to desert because the NATO operation against the FRY was an “illegal combat operation under international law.” The Court’s judgment is worth quoting at some length: The use of the German Army against the FRY was illegal, as it contravened international law. The illegal act concerned the rules of general international law. The aerial warfare against the FRY violated the absolute prohibition of the use of force in Article 2 (4) UN Charter. […] The war against Yugoslavia was also not justified by unwritten customary international law. In so far as it is claimed that the action was justified by the fact that the UN Security Council was inactive or incapable of taking measures under Chapter VII UN Charter, there are simply no facts which would justify such a claim. The war was started without waiting for the Security Council to adopt a resolution. It also cannot be argued that the vetoing of the required authorisation of the use of force by a permanent member (according to Article 27 (3) UN Charter) constitutes an abuse of rights that allows other States to disregard the prerogative of the Security Council and to take the measures considered necessary themselves. On the contrary, the permanent membership of the Security Council and the veto right of permanent members were created exactly for that reason: to prevent warlike clashes from being instigated over the heads of the most important States.31

The Court also rejected a justification of the war on the grounds of emergency assistance. It stated: “An unauthorised intervention of this kind violates international law, even if it is conducted for humanitarian reasons.”32 Other courts did not expressly declare NATO’s operation to be contrary to international law, but expressed serious doubts about the legality of the operation. These courts found that the question of the legality of the Kosovo war was “highly controversial,” that the view that NATO was violating international law “is gaining ground and can be well argued,” and that, “according to traditional international law,” this was “an obvious conclusion” to be drawn. They also found that the view as to the illegality of the operation was to be taken seriously, as there was “no formal legal basis for the NATO operation in international law.”33 The view of the District Court of Berlin Tiergarten also reflects the view of the large majority of German international lawyers who wrote puted whether the NATO operation in the Kosovo war was violating Art. 2 UN Charter and was thus contrary to international law or whether it was justified by customary international law as humanitarian intervention on behalf of the Kosovo Albanians” (Order of 10 October 2001, (4) 1 Ss 118/03 (93/01), not published). 31

District Court of Berlin Tiergarten, Judgment of 2 March 2000 (note 30), 652, 653.

32

Ibid.

33

For these unpublished decisions, see Matthias Jahn, Aufrufe zum Ungehorsam: Verfahren wegen des Kosovo-Kriegs vor den Moabiter Strafgerichten, Kritische Justiz 33 (2000), 489, 492.

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about the matter at the time, who considered the military operations against the FRY without Security Council authorisation a breach of international law.34

IV. What Counts as Germany’s Opinio Juris? Former Chancellor Schröder’s 2014 statement raises the question of whether it can be treated as evidence of Germany’s opinio juris regarding the illegality of the Kosovo intervention and, in particular, whether it can be treated as evidence of the absence of a customary international law right to humanitarian intervention. Evidence in the present context is to be taken in its general meaning, i.e. the available information for the determination of the rule of customary international law.35 Statements of government officials can constitute both State practice and opinio juris.36 When a State says that something is lawful or unlawful, that is an expression of its opinio juris. Such assertions by States of the lawfulness of a certain action (or its unlawfulness) can, inter 34

Friederike Bauer, Mehr Druck vom Sicherheitsrat verlangt: Völkerrechtler fordern Kosovo-Resolution, FAZ, 26 October 1998, 8; Sybille Tönnies, Die gute Absicht allein ist suspekt, FAZ, 7 June 1999, 12; Hermann Weber, Rechtsverstoß, Fortentwicklung oder Neuinterpretation?, FAZ, 9 July 1999, 8; Ulrich Fastenrath, Intervention ohne UN-Mandat?, FAZ, 22 April 1999, 5; Verena Grundmann/Kirsten Wiese, Krieg Macht Recht: Ein Gespräch mit dem Berliner Völkerrechtler Prof. Dr. Ingolf Pernice über den NATO-Einsatz im Kosovo, Forum Recht (3) (1999), 96–97 (interview with Ingolf Pernice); Dietmar Hipp, Jenseits der roten Linie, Der Spiegel (21) (1999), 24 May 1999, 76–77 (quoting Bruno Simma who called the NATO “beyond the red line” as far as current international law was concerned); Ulrich Beyerlin, Rechtsstreit um Kosovo-Einsatz: Sind die Nato-Angriffe legitimiert? Nein, Die Welt, 27 March 1999, 2; Georg Nolte, Kosovo und Konstitutionalisierung: Zur humanitären Intervention der NATO-Staaten, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 59 (1999), 941–960; Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, European Journal of International Law 10 (1999), 1–22. For the legality of the NATO operation, see Christian Tomuschat, Ein zweites Versailles soll es nicht geben, Die Welt, 14 April 1999, 6 (humanitarian intervention “legitimate”); Karl Doehring, Wann “innere Angelegenheiten” an ihr Ende kommen, FAZ, 15 June 1999, 12; Eckart Klein, Keine innere Angelegenheit: Warum die Nato-Aktion im Kosovo aus völkerrechtlicher Sicht zulässig war, FAZ, 21 June 1999, 15; Christian Tietje, Intervenieren im Namen eines Notstandsrechts, FAZ, 21 June 1999, 55. For a more nuanced position, see Claus Kreß, Staat und Individuum in Krieg und Bürgerkrieg: Völkerrecht im Epochenwandel, Neue Juristische Wochenschrift 52 (1999), 3077, 3082, footnote 58. 35

See International Law Commission (ILC), Identification of Customary International Law: Statement of the Chairman of the Drafting Committee, 7 August 2014, 66th Sess., 6–7, available at: http:// legal.un.org/ilc/sessions/66/DC_ChairmanStatement%28IdentificationofCustom%29.pdf (accessed on 22 September 2014). 36

See e.g. James Crawford, Brownlie’s Principles of Public International Law (8th ed. 2012), 24.

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alia, take “the form of an official statement by a government or a minister of that government.”37 The International Court of Justice (ICJ) held in the Nicaragua case that “statements […] emanating from high-ranking official political figures” that were “made during press conferences or interviews” and that “were reported by the local or international press” are of “particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may then be construed as a form of admission.”38 When the Court referred to “highranking official political figures” it meant current, not former political figures.39 Verbal acts of private individuals, including former high-ranking government officials, do not constitute per se opinio juris of the State. For such acts to count as the State’s opinio juris they must be attributable to the State, in accordance with the general rules of attribution as set out in the Articles on the Responsibility of States for Internationally Wrongful Acts.40 In 2014, Gerhard Schröder was no longer a ‘person in authority’ who represented the German government.41 As a former Chancellor he was no longer qualified as a State organ whose verbal acts could be attributed to the German State. This does not mean, however, that statements by former government officials are without any relevance for the determination of the rules of customary international law. Such statements may shed light on the State’s opinion on matters of international law; especially if there have been no official public statements on the matter. For example, the written and oral statements on matters of international law made by former British Prime Minister Tony Blair and former Attorney-General Lord Gold-

37 ILC, Second Report on Identification of Customary International Law by Sir Michael Wood, Special Rapporteur, 22 May 2014, UN Doc. A/CN.4/672 (2014), 52, para. 75. 38 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 64. 39

Ibid. The Court spoke of “statements by representatives of States” and that the person “represented” the State. 40

ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq., Arts. 4–11. On the question of the applicable rules of attribution, see also ILC (note 35), 10–11. 41

Cf. Mexico-United States Mixed Claims Commission, Case of Moses, Decision of 14 April 1871, reprinted in: John Bassett Moore, History and Digest of the International Arbitrations to which the United States has been a Party, vol. III (1898), 3127, 3129.

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smith to the United Kingdom’s Iraq Inquiry may be treated as evidence of the United Kingdom’s opinion on the legality of the Iraq war.42 However, statements of former government officials should be treated with particular caution. Account must be taken of the manner, timing, form, and forum in which these statements are made. Off-the-cuff remarks made in the heat of the moment will usually be of limited evidential value. Memoirs of former government leaders, evidence given to (parliamentary) committees of enquiry, or statements in political discussion forums may be self-serving, and will usually reflect a personal take or partial view of matters. Statements may be made for political or other reasons and past events may be exploited to serve present political agendas. In any case, such statements cannot be treated as having the same value as official government statements. There is a difference between a former government official revealing the facts of an internationally wrongful act of the State that had not been known before,43 or leaking otherwise confidential information,44 and a former official contradicting earlier official government statements. In 1999, then Chancellor Schröder had declared to the Bundestag that Germany “acted on the basis of the right to provide emergency assistance and on the basis of Security Council decisions. For that reason, it really is wrong to constantly question the international legal authority for this action.”45 Fifteen years later, he said that his government at the time had been fully aware that Germany was acting “without a decision of the Security Council,” that “going to war without a decision of the Security Council was a violation of international law,” that in the case of Kosovo “the [UN] Charter was violated,” and that the government itself did not believe in its official justification of a right under international law to provide ‘emergency assistance’ to avert a humanitarian catastrophe.46 42

The statements are available via: http://www.iraqinquiry.org.uk/transcripts/statements.aspx (accessed on 10 March 2015). 43 For example, in February 2004 former British Secretary of State for International Development Clare Short stated that the British government had been spying on UN Secretary-General Kofi Annan; see BBC News, 26 February 2004, UK ‘spied on UN’s Kofi Annan,’ available at: http://news.bbc.co.uk/ 2/hi/uk_news/politics/3488548.stm (accessed on 22 September 2014). 44 On the role of leaked information in the determination of rules of customary international law, see William Thomas Worster, The Effect of Leaked Information on the Rules of International Law, American University International Law Review 28 (2013), 443, 473–481. 45

See supra, note 27.

46

See supra, note 10.

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Such revelations do not, in principle, call into question earlier official statements. Germany may well have chosen in 1999 to express a certain opinio juris being aware that it was not in conformity with well-established rules of international law. States may choose to do so in order to contribute to the emergence of a new rule of customary international law. Thus, when determining the existence and content of a customary international law right of humanitarian intervention courts could, as a rule, still look to the official German government statements of 1999. The situation may be different if the government of the day endorses, either expressly or implicitly, the legal opinion enunciated by the former government official. In the present case, it is noteworthy that the present German government did not officially dissent or dissociate itself from the legal opinion expressed by former Chancellor Schröder. Asked about Schröder’s comparison between the breaches of international law in Kosovo and Crimea the government spokesman simply replied that the violation of international law by the Russian Federation in Crimea “could not be justified even if in the past and in a different location there had also been violations.”47 Similarly, Chancellor Merkel stated that Russia’s breach of international law in Ukraine “would not be diminished if there had been other violations of international law.”48 Contrary to what has been reported in the media, she did not say that “even if there had been other breaches of international law – Kosovo not being one of them – Russia’s actions in Ukraine are still a breach of international law.”49 The quote attributed to Chancellor Merkel cannot be found in either the video of the debate available on the Bundestag media centre’s website or in the official verbatim records of the debate. Thus, while the current German government had ample opportunity to put the record on the legality of the Kosovo intervention straight, it did not do so. In circumstances like this, one would have expected the government to take issue with the legal opinion expressed by former Chancellor Schröder if it did not reflect the opinion of the government. This absence of opposition may thus reflect an impli47

See supra, note 11.

48

See supra, note 12.

49

This quote was first published by the online newspaper EU Observer; see Valentina Pop, Merkel: Comparing Crimea to Kosovo is “shameful,” EUObserver, 13 March 2014, available at: http://euobserver. com/foreign/123454 (accessed on 22 September 2014) (emphasis added) and was later re-published by numerous other English language media outlets and even found its way into the House of Commons Library Research Paper 14/16, Ukraine, Crimea and Russia, 17 March 2014, 7, available at: www. parliament.uk/briefing-papers/rp14-16.pdf (accessed on 22 September 2014).

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cit endorsement of the legal position on the Kosovo intervention as expressed by former Chancellor Schröder.50

V. Conclusion Gerhard Schröder’s change of mind on the legality of NATO’s intervention in the Kosovo conflict is reminiscent of General Tiefenbach’s famous saying in Friedrich Schiller’s drama Wallenstein: “Before we sat down for supper, it was read differently.”51 It is a futile exercise to speculate about what brought about this change of mind and what motivated Schröder to use Kosovo in defence of Russia’s violation of international law in Ukraine. He is definitely not the first high-ranking government official who speaks differently about State affairs after leaving office. Germany would also not be the first country to officially express a certain opinio juris on the use of force knowing full well that its position does not reflect customary international law. Schröder’s 2014 statement just illustrates that Germany went out on a limb in 1999 to legally justify its participation in the NATO bombing campaign against the FRY. Being aware that the use of force without Security Council authorisation constituted a violation of the UN Charter and, unlike the United Kingdom and Belgium, unwilling to openly and forcefully endorse a customary international law right to unilateral humanitarian intervention to avert an overwhelming impending humanitarian catastrophe,52 the German government at the time took to a questionable concept of ‘emergency assistance’ in exceptional circumstances. This justification was not ac50 In response to a parliamentary question on the legal basis of the Kosovo intervention triggered by the statement of former Chancellor Schröder, the German government on 12 September 2014 simply repeated its earlier statements of 2001 that “the threat and the use of force by NATO were a means of last resort justified by the exceptional circumstances of the crisis in Kosovo”; see German Parliament, BT-Drs. 18/2560, 16 September 2014, 8. 51

Friedrich Schiller, The Piccolomini (translated by S. T. Coleridge), Scene VII, 7. Wallenstein, capo of all imperial forces in the Holy Roman Empire, asked his generals to swear an oath of allegiance to him which was read to the generals before they sat down for supper. Wallenstein then treated his generals to a feast fit for a King before asking them to sign the oath. At that stage, Tiefenbach noted that an important proviso in the oath (“so far, namely, as our oath to the emperor will permit it”) had been dropped. 52

See e.g. Christine Gray, International Law and the Use of Force (3rd ed. 2008), 42, 45–46, 50. On the British position, see also Michael Wood, International Law and the Use of Force: What Happens in Practice, Indian Journal of International Law 53 (2013), 345, 360–362.

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cepted by the courts and the majority of legal scholars at the time who considered Germany’s participation in the NATO bombing campaign to be illegal. That this was also the view of the German government may now have been confirmed by the Schröder statement – at last!

Germany’s Role in the Destruction of Syrian Chemical Weapons CHRISTOPH BEINLICH( AND BENJAMIN JÜDES((

I. Introduction In early 2013, it was reported that chemical weapons had been used against civilians in the midst of the Syrian civil war. While there had been much disagreement about how the Syrian conflict should best be dealt with, there was a consensus among the international community that with the use of chemical weapons a “red line”1 had been crossed and that immediate action needed to be taken through all international channels.2

(

Student Research Assistant at the Walther Schücking Institute for International Law, University of Kiel. ((

Student Research Assistant at the Walther Schücking Institute for International Law, University of Kiel. 1

See The White House, Office to the Press Secretary, Remarks by the President to the White House Press Corps, 20 August 2012, available at: http://www.whitehouse.gov/the-press-office/2012/ 08/20/remarks-president-white-house-press-corps (accessed on 23 March 2015). 2

Julian Borger, France warns Syria of forceful response over chemical weapons claim, The Guardian, 22 August 2013, available at: http://www.theguardian.com/world/2013/aug/22/france-warns-syriaresponse-chemical (accessed on 23 March 2015); AlJazeera, 2 September 2013, Arab League urges UNbacked action in Syria, available at: http://www.aljazeera.com/news/middleeast/2013/09/201391182 35327617.html (accessed on 23 March 2015); Bonnies Malkin, Syria: UN Security Council wants ‘clarity’ over alleged chemical attack, The Telegraph, 22 August 2013, available at: http://www. telegraph.co.uk/news/worldnews/middleeast/syria/10258597/Syria-UN-Security-Council-wantsclarity-over-alleged-chemical-attack.html (accessed on 23 March 2015); Deutsche Welle, 26 August 2013, Germany: A chemical attack in Syria ‘cannot be without consequences,’ available at: http://www. dw.de/germany-a-chemical-attack-in-syria-cannot-be-without-consequences/a-17045803 (accessed on 23 March 2013).

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After a number of attempts to stop the use of force by the Syrian government, blocked by Russia and China in the United Nations Security Council (UN SC),3 as well as several unsuccessful peace conferences, such as Geneva II,4 the efforts of the Executive Council of the Organisation for the Prohibition of Chemical Weapons (OPCW) finally led to a set of special procedures written down in its Decision on the Destruction of Syrian Chemical Weapons.5 It was clear that Syria would not be able to destroy its chemical weapons arsenal without the help of the international community. States with the relevant know-how and technology thus had to get involved. Numerous States offered their support. This article will describe the regime of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC)6 and the OPCW procedures. It will then examine how Germany played a role by putting its capabilities at the disposal of the OPCW, and focus on questions of constitutional law, which form the background for Germany’s involvement in the operation.

II. Events in Syria In winter 2010, political uprisings in different Arab countries occurred and led to mostly peaceful regime changes. In other States, however, these uprisings were the reason for ongoing civil wars.7 In Syria, the protests caused violent confrontations between the regime of Bashar al-Assad and the opposition. What had started with political protests in spring 2011 developed into a severe ongoing humanitarian crisis and led to the use of chemical weapons against civilians in August 2013.8 The international com3 Draft SC Res. 612 of 4 October 2011; Draft SC Res. 77 of 4 February 2012; Draft SC Res. 538 of 19 July 2012; Draft SC Res. 348 of 22 May 2014. 4 BBC News Middle East, 22 January 2014, What is the Geneva II Conference on Syria?, available at: http://www.bbc.com/news/world-middle-east-24628442 (accessed on 23 March 2015). 5

Organisation for the Prohibition of Chemical Weapons (OPCW), Decision on the Destruction of Syrian Chemical Weapons, 27 September 2013, EC-M-33/DEC.1. 6

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 3 September 1992, UNTS 1974, 45 (CWC). 7

Thorsten Gerald Schneiders (ed.), Der arabische Frühling: Hintergründe und Analysen (2013); Christian Tomuschat, The Arabellion: Legal Features, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 72 (2012), 447. 8

Human Rights Council Res. S-16/1 of 29 April 2011; GA Res. 67/997 of 16 September 2013; SC Res. 2165 of 14 July 2014.

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munity accused the Assad regime as well as the opposing forces of the use of chemical weapons against each other and the civilian population at different stages of the conflict.9 On 21 August 2013, the reports intensified as an alleged use of chemical weapons in the Ghouta area of Damascus was reported with more than 1,000 civilian casualties.10

III. The Regime of and Syria’s Accession to the Chemical Weapons Convention The universal condemnation of the use of chemical weapons is enshrined in the CWC. In Article 1 CWC, general obligations are set out for the parties to the Convention. It contains, inter alia, an obligation for its Member States not to develop, produce, or stockpile chemical weapons, not to use them, and to destroy all chemical weapons which they are in possession of or which are located in any place under their jurisdiction or control. Furthermore, according to Article 8 CWC, the OPCW has been established with the Executive Council as its executive organ. In paragraphs 12 et seq. of Part IV A of the Verification Annex to the CWC,11 obligations are set out which have to be followed strictly by the State in possession of chemical weapons during the destruction process. The weapons shall be destroyed in an irreversible manner and the State is not permitted to dump the ammunition in any body of water, bury it on land, or to openly burn it. Therefore, specifically designated and appropriately designed and equipped facilities are required for the destruction process. These facilities have to be operated in a way that the destruction of chemical weapons is ensured and processed in a safe way. Syria deposited its instrument of accession to the CWC on 14 September 2013 and was not a party to the CWC until 14 October 2013, when it became the 190th Member State.12 It decided to accede to the CWC due to increasing demands for a 9

GA Res. 67/262 of 15 May 2013.

10

BBC News Middle East, 24 September 2013, Syria chemical attack: what we know, available at: http://www.bbc.com/news/world-middle-east-23927399 (accessed on 23 March 2015). 11 12

Part IV A Verification Annex to the CWC, UNTS 1974, 82.

Scott Spence, Articles XVIII to XXI: Signature, Ratification, Accession, and Entry-into-Force, in: Walter Krutzsch/Eric Myjer/Ralf Trapp (eds.), The Chemical Weapons Convention: A Commentary (2014), 419, 421; UN Depositary Notification, Syrian Arab Republic: Accession, C.N.592.2013. Treaties-XXVI.3 (14 September 2013).

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military intervention in Syria within the international community. The United States (US), France, and Great Britain proposed the use of force to prevent another use of chemical weapons in Syria, whereas Russia urged to work together with Assad and the United Nations for the creation of a destruction plan.13 On 14 September 2013, the Russian Federation and the United States agreed on the destruction of all Syrian chemical weapons and production facilities.14 This agreement paved the ground for Syria’s deposition of its instrument of accession on the same date and silenced the calls for a military intervention.15 Generally, according to Article 21 (2) CWC, it shall enter into force for the accessing State 30 days after the deposition of its instrument of accession. However, when Syria deposited its instrument of accession to the Convention on 14 September 2013, it also declared to comply with the treaty stipulations and observe them faithfully and sincerely, applying the Convention provisionally.16 Furthermore, the depositary notified all Member States about Syria’s intention, to which no objections were communicated.17 The reason for the provisional application can be found in paragraph 9 of the preamble of the Executive Council Decision, which states that, due to the extraordinary character of the situation posed by Syrian chemical weapons, the OPCW is determined to immediately start the destruction activities. As further stated in paragraph 10 of the preamble, the Executive Council based this decision on an invitation by Syria18 to receive immediately a technical delegation from the OPCW and to cooperate with the OPCW in accordance with the provisional application of the Convention prior to its entry into force for Syria. From the foregoing 13

Cf. Dorte Hühnert/Bernd W. Kubbig/Christian Weidlich, Das Chemiewaffenmassaker in Syrien und seine Folgen: Katalysator für Rüstungskontrolle im Nahen Osten, in: Friedensgutachten (2014), 279; Julian Borger et al., Syria pledges to sign chemical weapons treaty and reveal scale of stockpile, The Guardian, 10 September 2013, available at: http://www.theguardian.com/world/2013/sep/10/russiaun-syrian-chemical-weapons (accessed on 12 April 2015). 14 OPCW, Joint National Paper by the Russian Federation and the United States of America: Framework for the Elimination of Syrian Chemical Weapons, 17 September 2013, EC-M-33/Nat.1, Annex; Peter Baker/Anne Barnard, U.S. and Russia Reach Deal to Destroy Syria’s Chemical Arms, The New York Times, 14 September 2013, available at: http://www.nytimes.com/2013/09/15/world/ middleeast/syria-talks.html?pagewanted=all&_r=1& (accessed on 23 March 2015). 15

OPCW (note 14), para. 1.

16

UN Depositary Notification (note 12); OPCW (note 5), preamble para. 7.

17

See UN Depositary Notification (note 12).

18

Ibid.

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remarks it can be deduced that all States parties, the UN, the OPCW, and Syria agreed on a provisional application of the Convention for Syria. However, in paragraph 8 of the preamble of the Executive Council Decision, the OPCW recognises that the CWC was not going to enter into force for Syria until 14 October 2013.19

IV. Reactions of the International Community Due to the allegations of the use of chemical weapons, the UN Secretary-General decided, based on his authority under General Assembly (GA) Resolution 42/37C and SC Resolution 620 (1988), to establish the UN Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic.20 This mission, under the auspices of the OPCW, concluded in its Report on Allegations of the Use of Chemical Weapons in the Syrian Arab Republic issued on 16 September 2013 that chemical weapons had been used in the conflict between the parties against civilians, including children, on a relatively large scale.21 The OPCW has a mandate in accordance with paragraph 27 of Part XI of the Verification Annex of the CWC to cooperate closely with the UN, by placing its resources at the disposal of the SecretaryGeneral, to conduct an investigation of an alleged use of chemical weapons involving a State not party to the CWC. Subsequently, the UN SC unanimously adopted Resolution 2118 on 27 September 2013.22 In this resolution, the UN SC asked for the immediate termination of Syria’s chemical weapons programme and agreed that, in the event of non-compliance, ‘Chapter VII’ measures would be imposed, as asked for in the agreement between Russia and the US.23 The UN SC based this decision on the Syrian accession to the 1925 Geneva Protocol24 on 22 November 1968 as well as its deposition of the instrument of accession to the CWC on 14 September 2013, in which Syria declared 19

OPCW (note 5), para. 1.

20

GA Res. 42/37C of 30 November 1987; SC Res. 620 of 26 August 1988.

21

GA Res. 67/997 of 16 September 2013, para. 27.

22

SC Res. 2118 of 27 September 2013.

23

OPCW (note 14), para. 4; SC Res. 2118 (note 22), para. 21.

24

Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, LNTS 94, 66.

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to apply the CWC provisionally.25 Furthermore, it condemned the use of chemical weapons as a serious violation of international law, as had previously been stated by the International Criminal Tribunal for the former Yugoslavia in its Tadić decision.26 The UN SC further urges in its Resolution the Syrian government and the Syrian opposing forces as well as all interested and capable Member States to work closely together and to provide safety for the monitoring and destruction mission led by the OPCW.27 The timeframe and the procedures for this operation were provided for in the OPCW Executive Council Decision of 27 September 2013, further clarifying the agreement between Russia and the US.28 The Decision was incorporated into Resolution 2118 and was therefore binding on Syria regardless of the fact that, at that time, Syria technically was not a State party to the Convention.29 Russia and the US asked for the incorporation of the OPCW Executive Council Decision into a UN SC resolution to reinforce that decision.30 The Executive Council Decision envisaged to begin with inspections in Syria not later than 1 October 2013, to complete the destruction of chemical weapons and mixing/filling equipment by not later than 1 November 2013, and to complete the elimination of all chemical weapons material and equipment in the first half of 2014.31 This timeframe differs very much from the timeframe provided for by the CWC. In its Article 4 (6), the Convention requires States to start the destruction process two years and to finish it not later than ten years after their accession to the Convention. This deviation from the Convention is due to the urgency of the situation as stressed by the UN SC. Legally, this deviation cannot be based on the CWC regime, but on the incorporation of the timeframe into the UN SC resolution. The Syrian government did not have the facilities for the destruction process as required by the CWC, nor could it guarantee the safe and final destruction of all 25

SC Res. 2118 (note 22), preamble; UN Depositary Notification (note 12).

26

International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, reprinted in: ILM 35 (1996), 35, para. 17 (sec. 120). 27

SC Res. 2118 (note 22), para. 11.

28

OPCW (note 5), paras. 1 et seq.

29

SC Res. 2118 (note 22), Annex I.

30

OPCW (note 14), para. 3.

31

SC Res. 2118 (note 22), Annex I, paras. 1, 2.

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chemical weapons within the country.32 Therefore, another solution was necessary, and the Director-General of the OPCW announced to initiate a solicitation process in order to identify companies with relevant technical capabilities in other States.33 Shortly afterwards a number of States declined to destroy chemical weapons within their territory.34 Therefore, it was decided that the most problematic and dangerous materials were to be destroyed by the United States government, which decided to provide a modified container ship, the Cape Ray, in the service of the Defence Department to undertake the neutralisation of about 600 metric tonnes of chemical agents and precursor materials in the international waters of the Eastern Mediterranean Sea.35 The resulting remnants were to be transported to States with sufficient capabilities for the final destruction process.36

V. The Role of the Federal Republic of Germany Only one day after the adoption of Resolution 2118 by the UN SC, the German Federal Minister for Foreign Affairs Guido Westerwelle spoke before the General Assembly emphasising Germany’s commitment to supporting the peace process in Syria.37 In particular, he welcomed the agreement reached in the UN SC and the OPCW and announced that Germany – a party to the CWC itself –38 would provide both financial and technical assistance to the activities initiated by the two organs.39 32

Walter Krutzsch/Eric Myjer/Ralf Trapp, Issues Raised by the Accession of Syria to the Chemical Weapons Convention, in: id. (eds.) (note 12), 689, 698 et seq. 33 OPCW, Call for Proposals for the Treatment and Disposal of Chemicals, Effluents, and Related Packaging Materials with Respect to the Destruction of Syrian Chemical Weapons, 16 December 2013, EC-M-36/DG.4, paras. 6 et seq. 34

Krutzsch/Myjer/Trapp (note 32), 692.

35

See OPCW, United States offers to destroy Syria’s Priority Chemicals: OPCW receives expressions of interest from 35 private companies to destroy other Syrian weapons, 30 November 2013, available at: http://www.opcw.org/news/article/united-states-offers-to-destroy-syrias-priority-chemicals/ (accessed on 23 March 2015). 36

Ibid.

37

UN GA, Official Records, 18th Plenary Meeting, UN Doc. A/68/PV.18 (2013), 29, 30.

38

Germany ratified the CWC on 12 August 1994, see https://treaties.un.org/pages/ViewDetails. aspx?mtdsg_no=XXVI-3&chapter=26&lang=en (accessed on 23 March 2015). 39

See UN GA (note 37).

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On 2 April 2013, the federal government, on the basis of Resolution 2118, submitted to the German Parliament (Bundestag) plans for German naval forces to participate in securing the neutralisation of the Syrian chemicals to be undertaken on board the Cape Ray.40 It was proposed that a German frigate carrying up to 300 soldiers be deployed to escort the Cape Ray during its mission in the Mediterranean Sea and the North Atlantic.41 The government’s submission outlined plans to provide, in particular, sea and air surveillance.42 In the event of an attack against the Cape Ray or an imminent threat thereof, the frigate would be authorised to use force within the limits of international law.43 The proposal was adopted by the Bundestag on 9 April 2014,44 and the mission began on 3 July 2014.45 Three German frigates were deployed to take part in the mission between July and August: the Augsburg,46 the Schleswig-Holstein,47 and the Hamburg.48 In addition, Germany decided to provide technical facilities for the final destruction of 370 tonnes of remnants of the neutralisation on the Cape Ray.49 The German Ministry of Defence operates a facility, the Gesellschaft zur Entsorgung von chemischen Kampfstoffen und Rüstungslasten mbH (GEKA) located in Munster, Lower Saxony, 40

German Parliament (Deutscher Bundestag), Request of the Federal Government: Beteiligung bewaffneter deutscher Streitkräfte am maritimen Begleitschutz bei der Hydrolyse syrischer Geheimwaffen an Bord der CAPE RAY im Rahmen der gemeinsamen VN/OVCW-Mission zur Vernichtung syrischer Chemiewaffen, Bundestagsdrucksachen (BT-Drs.) 18/984, 2 April 2014. 41

Ibid., para. 3.

42

Ibid.

43

Ibid., para. 6.

44

German Parliament, Protocol of the Plenary 18/29, 9 April 2014, 2387.

45

See Christian Dewitz, ‘Cape Ray’: syrische Kampfstoffe komplett vernichtet, Bundeswehr-Journal, 23 August 2014, available at: http://www.bundeswehr-journal.de/2014/cape-ray-syrische-kampfstoffekomplett-vernichtet/#more-3800 (accessed on 23 March 2015). 46

Alexander Drechsel, Deutschland schickt Fregatte zu C-Waffen-Vernichtung, Deutsche Welle, 9 April 2014, available at: http://www.dw.de/deutschland-schickt-fregatte-zu-c-waffen-vernichtung/a17553824 (accessed on 23 March 2015). 47

From 6 July 2014.

48

From 23 August 2014.

49

German Parliament (note 40), 4; Federal Foreign Office (Auswärtiges Amt), Safely destroying Syria’s chemical weapons, available at: http://www.auswaertiges-amt.de/sid_27AEBB06C632D9C23 A53F9B28616DDD9/EN/Aussenpolitik/Friedenspolitik/BW-Einsätze/140409-Mandat_CapeRay. html?nn=546780 (accessed on 23 March 2015).

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which specialises in the destruction of chemical weapons, originally remnants from World Wars I and II, which can still be found in Germany.50 The government plans shall first be examined from the international law perspective. Various different destruction scenarios would have been possible.51 The destruction on Syrian territory would have been highly impracticable due to the conflict. The route that was chosen instead proved to be very useful not only for practicability reasons. Firstly, it allowed for a quick removal of the chemicals from Syrian territory and its jurisdiction. But secondly, it was legally made easier for third States to participate, as they did not have to enter Syrian territory. The deployment of a frigate to escort the Cape Ray during its mission thus did not cause any obstacles in terms of international law.52 The acquisition and transportation of the remnants of the destruction on sea, which would normally fall under the CWC, was made possible by the Executive Council. It decided that a State party providing assistance to the international efforts to destroy Syrian chemical weapons by offering transportation and undertaking destruction activities on its own territory is subject to the requirements of the Convention, namely to act in a manner consistent with its object and purpose, but “shall not be regarded as a possessor State Party or incur the obligations of a possessor State Party with respect to Syrian chemical weapons.”53 This is in line with Resolution 2118, whereby the Security Council authorised Member States to “acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW.”54 The legal basis for this is Article 24 UN Charter55 in conjunction with its Article 103, which rules that in the event of a conflict between the obligations of UN members under the Charter (here the UN SC Resolution 2118) and

50

Information available via: http://www.geka-munster.de/index.php?id=3 (accessed on 23 March 2015). 51

Cf. Krutzsch/Myjer/Trapp (note 32), 698 et seq.

52

Cf. Rüdiger Wolfrum, Hohe See und Tiefseeboden (Gebiet), in: Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006), 287, 298. 53 OPCW, Decision on Detailed Requirements for the Destruction of Syrian Chemical Weapons and Syrian Chemical Weapons Production Facilities, 15 November 2013, EC-M-34/DEC.1, para. 12 (a) of the operative part. 54

SC Res. 2118 (note 22), para. 10.

55

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

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their obligations under any other international agreement (here Article 1 CWC), their obligations under the Charter shall prevail. From a constitutional law perspective, foreign deployments of the German Armed Forces (Bundeswehr) always bring up the issue of parliamentary participation. In this regard, it must first be noted that the Bundeswehr has, since the end of the Cold War, seen an increasing number of missions abroad involving the deployment of armed forces.56 The discussions have ever since revolved around the question whether the Bundeswehr has evolved from its original objective as a mere defence force to an expeditionary force (Einsatzarmee) and whether this is in fact consistent with the German Basic Law (Grundgesetz).57 The Basic Law is committed to the peaceful coexistence of nations.58 In this spirit, its Article 87a (1) allocates to the Bundeswehr the primary role of a defence force and provides that, other than in a case of selfdefence, the Bundeswehr may only be deployed as far as has been explicitly specified in the Basic Law. Regardless of whether this norm applies to missions outside German territory,59 the Basic Law remains silent on the question under which circumstances precisely the Bundeswehr may be deployed beyond the German borders outside the traditional defence scenario. In its judgment of 12 July 1994 on the deployment of Bundeswehr forces, the German Federal Constitutional Court (Bundesverfassungsgericht) decided that Article 87a Basic Law does not exclude Article 24 (2) Basic Law as the basis for an armed mission within the framework of a system of collective security.60 It thereby paved the way for Germany to play an increasingly active role in

56

For a summary of previous missions see Bardo Fassbender, Militärische Einsätze der Bundeswehr, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland: Internationale Bezüge, vol. XI (2013), 643, 644 et seq. 57

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 23 December 2014, BGBl. I, 2438 (German Basic Law); on the issue of parliamentary participation cf. Eberhard Ulrich Schwandt, Einsatz der Bundeswehr ‘out of area,’ in: Knut Ipsen et al. (eds.), Wehrrecht und Friedenssicherung: Festschrift für Klaus Dau zum 60. Geburtstag (1999), 219. 58

Art. 26 German Basic Law.

59

On this controversy, see Albrecht Randelzhofer, Art. 24 (2) GG, in: Theodor Maunz/Günter Dürig (eds.), Grundgesetz: Kommentar (72nd ed. 2014), 21. 60

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 90, 286, 355.

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international military missions. Though disputed in scholarly writing,61 the government practice, exercised also in the present case,62 to refer to Article 24 (2) Basic Law as the explicit authorisation for an armed mission according to the rules of a system of collective security thus seems to be in line with the view of the Court. However, the Court derived from the provisions of the Basic Law the rule that the deployment of forces to an armed mission generally requires prior approval of the Bundestag.63 This rule has subsequently been put into legislation.64 Yet, the Parliamentary Participation Act leaves room for interpretation as to the criterion of an involvement in armed operations. The Federal Constitutional Court dealt with this in its judgment of 12 February 2008 concerning the Bundestag approval for the deployment of German soldiers in measures of aerial surveillance for the protection of Turkey pursuant to the NATO decision of 19 February 2003.65 It stated that “[t]he mere possibility that there may be armed conflicts during a deployment is not sufficient for this” and that the requirement of parliamentary approval “does not, therefore, extend to deployments where there are no indications of a specific proximity to the use of military force.”66 It is rather “only the well-founded expectation of involvement in armed conflicts that subjects a foreign deployment of German soldiers to the requirement of parliamentary approval.”67 This means that “there must be sufficient tangible actual evidence that a deployment, by reasons of its purpose, the concrete political and military circumstances and the deployment powers, may lead to the use of armed force” and that there is “a particular proximity to the use of armed force.”68 The equipment of soldiers with weapons and the authorisation to use them serves as an indication that they may be involved in armed

61

Cf. Randelzhofer (note 59), 28; Ingolf Pernice, Art. 24 GG, in: Horst Dreier (ed.), Grundgesetz: Kommentar II (2006), 530. 62

German Parliament (note 40), para. 2.

63

Federal Constitutional Court, BVerfGE 90, 286 (note 60), 381.

64

See Parliamentary Participation Act (Parlamentsbeteiligungsgesetz), 18 March 2005, BGBl. I, 775.

65

Federal Constitutional Court, 2 BvE 1/03 of 7 May 2008, available at: http://www.bundes verfassungsgericht.de/SharedDocs/Entscheidungen/EN/2008/05/es20080507_2bve000103en.html (accessed on 23 March 2015). 66

Ibid., para. 77.

67

Ibid.

68

Ibid., paras. 78 et seq.

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conflicts.69 At the same time, the Court suggests that a mission may still be of a nonmilitary nature even though the soldiers are armed when they only have authorisation for self-defence.70 The federal government adopted this reasoning in the case of the Operation Pegasus, which took place on 26 February 2011 to evacuate, inter alia, 125 German nationals from Libyan territory using Bundeswehr aircraft.71 Here, the government expected that the soldiers deployed would not be threatened by Libyan forces, that they would not have to use armed force, and, in consequence, that they would not be involved in an armed conflict.72 As a result, the government did not apply for parliamentary approval, which has led to proceedings before the Federal Constitutional Court.73 Over a decade before, the government had asked the Bundestag to approve of an evacuation mission in Albania after the operation had been successfully completed.74 The mission had led to German soldiers using armed force and thus had to be qualified as an involvement in armed operations.75 Operation Pegasus, in contrast, could, at least retrospectively, be qualified as a non-military operation with no involvement in armed operations in terms of the Parliamentary Participation Act.76 As the German frigate was not intended to enter Syrian maritime zones or those of third States during the mission,77 the deployment of a frigate to escort the Cape Ray during the neutralisation of the Syrian chemical weapons, in comparison, seems to 69

Ibid., para. 81.

70

Ibid.

71

German Parliament, Answers of the Federal Government to Questions of Parliamentarians: Evakuierungseinsatz ‘Pegasus’ der Bundeswehr in Libyen, BT-Drs. 17/6564, 11 July 2011, 1. 72

Ibid., 2.

73

See Federal Constitutional Court, Press Release No. 105/2014 of 25 November 2014, available at: http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2014/bvg14-105. html (accessed on 20 March 2015). 74

German Parliament, Request of the Federal Government: Einsatz deutscher Streitkräfte zur Evakuierung deutscher Staatsbürger und unter konsularischer Obhut befindlicher Staatsangehöriger anderer Nationen aus Albanien, BT-Drs. 13/7233, 18 March 1997. 75

Klaus Dau, Die militärische Evakuierungsoperation ‚Libelle‘: ein Paradigma der Verteidigung?, Neue Zeitschrift für Wehrrecht 40 (1998), 89, 90; Claus Kreß, Die Rettungsoperation der Bundeswehr in Albanien am 14. März 1997 aus völker- und verfassungsrechtlicher Sicht, ZaöRV 57 (1997), 329, 331. 76

The decision by the Federal Constitutional Court is still pending.

77

German Parliament (note 40).

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carry less potential for the soldiers to get involved in armed operations than the deployment of soldiers directly into the conflict zone. Specifically, the German frigate was intended to remain within international waters at all times during the mission.78 Whether there was sufficient tangible actual evidence then that the use of armed force may become necessary and that there was a particular proximity to the use of armed force might well be doubted. The government nevertheless asked for parliamentary approval. Perhaps this was thought to be necessary in view of the 1994 decision of the Court. Here, it stated that the deployment of troops on the basis of a UN SC resolution always requires parliamentary approval, regardless of whether the resolution envisages Chapter VII measures.79 However, it would seem that the Court had a different situation in mind, namely one in which the UN SC expressly intends a military mission. This understanding of the Court’s decision suggests that the mere existence of a UN SC resolution does not always require parliamentary approval when troops are involved. While Resolution 2118 formed the basis for the Bundeswehr mission, the UN SC did not expressly ask States to provide military personnel. Accordingly, a Bundestag mandate was not needed just because of Resolution 2118. In addition to the general requirements mentioned above, the Court outlined in its 2008 decision with regard to the specific circumstances of the case that a situation where the deployment is intended to protect a particular object against attack will have to be qualified as a genuinely military operation, meaning that the soldiers are involved in an armed operation in terms of the Parliamentary Participation Act.80 The situation was similar here; the specific purpose of the mission was to secure the maritime area surrounding the Cape Ray by means of sea and air surveillance and to protect the US vessel in the event of an attack. The government thus rightly applied for parliamentary approval. Although a certain level of legal clarity has been achieved with regard to foreign deployments of Bundeswehr soldiers through the decisions of the Court and the Parliamentary Participation Act, the political debate about the role of the Bundeswehr in this respect still exists. Previous missions have always led to controversy,81 and 78 The threat potential was said to be not very high. See German Parliament, Protocol of the Plenary 18/27, 4 April 2014, 2201. 79

Federal Constitutional Court, BVerfGE 90, 286 (note 60), 387.

80

Ibid.

81

SC Res. 2118 (note 22), para. 11.

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it is, of course, Germany’s past and the initial intention of the Allies of World War II to achieve the complete demilitarisation and disarmament of Germany82 which gives rise to the question whether German military forces should at all take such an active role, especially beyond German borders.83 It is a fundamental question that has traditionally been answered in the negative by the left wing of the parliament regardless of the purpose of a particular mission.84 Against this backdrop, it is of no surprise that, despite a wide consensus that Germany should contribute to the efforts to destroy the Syrian chemical weapons, the government plans to deploy military forces to the Mediterranean Sea have led to a controversial debate.85 However, the specific nature of the mission – firstly, the plans for the present mission did not involve troops being deployed to the territory of a foreign State;86 secondly, the UN SC expressly asked States with relevant capabilities to cooperate in order to arrange for the security of the mission;87 and thirdly, there was a strong consensus amongst the international community that the mission was necessary in order to restore peace and stability in Syria88 – led to a comparatively strong vote in favour of the mission in the Bundestag.89

82 Para. 2 a) The Occupation Statute, Verordnungsblatt für die Britische Zone 1949, No. 50, 7 September 1949, 399–402. 83

Cf. Michael Kloepfer, Verfassungsrecht I (2011), 1031 et seq.

84

Cf. German Parliament, Protocol of the Plenary 18/10, 29 January 2014, 622 et seq., 630; id., Protocol of the Plenary 18/17, 20 February 2014, 1279; id., Protocol of the Plenary 18/36, 22 May 2014, 3088. 85

Id., Protocol of the Plenary 18/29 (note 44), 2376 et seq.; id., Protocol of the Plenary 18/27 (note 78), 2200 et seq. 86

Id. (note 40).

87

SC Res. 2118 (note 22), para. 11.

88

Cf. generally in regard to the destruction process initiated by the Secretary-General Ioannis Vraailas, Statement on Behalf of the European Union at the UN General Assembly Plenary, 13 December 2013, available at: http://eu-un.europa.eu/articles/en/article_14380_en.htm (accessed on 23 March 2015); GA Res. 68/182 of 18 December 2013, para. 12; besides the German Navy, several other navies were involved, namely Russia and China as well as Denmark, Norway, and the United Kingdom, see http://www.opcw.org/special-sections/syria-and-the-opcw/frequently-asked-questions/ (accessed on 23 March 2015). 89 535 in favour, 35 rejections, and nineteen abstentions, see German Parliament, Protocol of the Plenary 18/29 (note 44), 2387; in comparison, see e.g. the voting result regarding the prolonged deployment of naval forces to take part in operation Active Endeavour, German Parliament, Protocol of the Plenary 18/76, 18 December 2014, 7292.

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VI. Conclusion Although Resolution 2118 did not directly create obligations for the international community to make resources available, it is the “moral and political responsibility”90 which has led States to take part in the destruction process. The way this crisis has been dealt with has once again proven that, although it is worth striving for an even more effective system of international legal norms, the current body of international law provides a solid basis to solve the conflicts of today. In particular, the accelerated accession of Syria to the CWC as well as the prompt deployment of the Cape Ray and other support vessels have shown that it is possible, with the support of willing States, to overcome the lack of procedural rules and to enforce international obligations such as the obligation to destroy all chemical weapons. Germany has actively contributed to the international efforts to destroy all Syrian chemical weapons,91 most likely due to its own moral and political responsibility rooted in its history. By supplying frigates for the protection of the Cape Ray and offering the destruction facility at Munster, Germany lived up to its own moral and political obligations.

90 Cf. Secretary-General, Remarks to the General Assembly on the Final Report of the UN Mission to Investigate Allegations of the Use of Chemical Weapons on the Syrian Arab Republic, 13 December 2013, available at: http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID= 2090#.VKqG92SG-oY (accessed on 23 March 2015). 91

Besides providing security to the Cape Ray and making available the destruction facility at Munster, Germany provided an amount of € 5 million to the OPCW’s Syria Trust Fund, see http://www. auswaertiges-amt.de/EN/Aussenpolitik/Abruestung/Aktuelles/140819_Syrien-Chemiewaffenver nichtung.html (accessed on 23 March 2015).

Recent Developments in German Case Law on Compensation for Violations of International Humanitarian Law PHILIPP STÖCKLE(

I. Introduction Over the last decades, international law has been progressively developed to recognise a variety of State obligations providing accountability for grave breaches of international human rights law and international humanitarian law (IHL). According, for instance, to the ‘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’ (Basic Principles), adopted by the United Nations General Assembly in 2005, States shall investigate such violations, prosecute and punish persons responsible, and provide adequate, effective, and prompt reparation for harm suffered.1 Drawing on the case law of the European and the InterAmerican Court of Human Rights,2 the Basic Principles conceive this set of obligations as individual rights of those who have been harmed, thus naming these mechanisms ‘victims’ rights.’3

( Doctoral Candidate and Research Associate at the Walther Schücking Institute for International Law, University of Kiel. 1 Principle 3 and Part IX Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 21 March 2006, UN Doc. A/Res/60/147 (2006) (Basic Principles); see also International Law Association, Reparation for Victims of Armed Conflict, Res. No. 2/2010, Art. 6. 2 European Court of Human Rights (ECtHR), Aksoy v. Turkey, Judgment of 18 December 1996, RJD 1996-VI, 2260, para. 98; Inter-American Court of Human Rights (IACtHR), Velásquez-Rodríguez v. Honduras, Merits, Judgment of 29 July 1988, Series C, No. 4, para. 166. 3

Theo van Boven, Victims’ Rights, MPEPIL, available via: http://www.mpepil.com (accessed on 24 April 2015).

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Although the Basic Principles purport to be merely declaring, not developing, international law,4 current State practice and opinio iuris do not appear to recognise all of the victims’ rights proclaimed. One of the most contentious rights concerns individual compensation for violations of IHL. States have been very reluctant to accept international obligations to compensate individual victims of armed conflict, as they fear that individual claims could restrict future military engagements, undermine political agreements, or overburden domestic courts.5 Instead, many States rely on ex-gratia payments or negotiate lump-sum settlements in international agreements.6 Domestic law of torts or governmental liability often bars claims by victims of military actions and domestic courts have applied the political question theory or non-justiciability doctrines in order to dismiss such actions or to limit judicial review.7 Thus, remedies for violations of IHL still appear to be mainly confined to the inter-State level. The lack of legal avenues for individual victims makes individual compensation for victims of armed conflict appear as a right de lege ferenda rather than de lege lata.8

4

Recital 7 Basic Principles.

5

Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict (2014), 28; Christian Tomuschat, State Responsibility and the Individual Right to Compensation Before National Courts, in: Andrew Clapham/Paolo Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014), 811, 812, 836 et seq.; Burkhard Heß, Kriegsentschädigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht, in: Wolff Heintschel von Heinegg (ed.), Entschädigung nach bewaffneten Konflikten (2003), 107, 176 et seq. 6

Cf. International Court of Justice (ICJ), Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, para. 94 (regarding a potential ius cogens obligation of individual reparation): “Moreover, against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and setoffs, 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”. 7

See, e.g, Italian Court of Cassation (Corte di Cassazione), Presidenza del consiglo dei ministri c. Markovic, Order of 5 June 2002, reprinted in: Rivista di diritto internazionale 85 (2002), 799 (characterising the choice of modalities of military conduct as as a non-justiciable act of government); Elke Schwager, Reparation for Individual Victims of Armed Conflict, in: Robert Kolb/Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (2013), 628, 645. 8

Anne Peters, Jenseits der Menschenrechte (2014), 193.

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Recent decisions of domestic courts may, however, have given new impetus to the development of an individual right to compensation. In 2013 and in 2014, Dutch courts held the State of the Netherlands liable for damages incurred by victims of the Srebrenica massacre.9 They held that the actions of Dutchbat in Srebrenica were attributable to the Netherlands and relied on Bosnian and on Dutch tort law in order to construe liability. At the same time, there have also been developments in Germany. In August 2013, the Federal Constitutional Court (Bundesverfassungsgericht) (FCC) dismissed the constitutional complaint of Serbian victims of a 1999 NATO attack on the bridge of Varvarin in the former Federal Republic of Yugoslavia.10 The FCC, however, strengthened judicial control over executive conduct during armed conflict. In December 2013 and April 2015, the Regional Court of Bonn (Landgericht) and the Higher Regional Court of Cologne (Oberlandesgericht) dismissed the claims of Afghan victims of an air strike near Kunduz.11 Yet both courts declared that German domestic rules of governmental liability were applicable to violations of IHL. After a short introduction into the relevant legal framework, this article shall analyse the recent case law and evaluate its potential impact on the international debate on compensation for victims of armed conflict.

9

District Court of The Hague (Rechtbank Den Haag), Mothers of Srebrenica v. The Netherlands, Judgment of 16 July 2014, C/09/295247/HA ZA 07-2973; Court of Appeal in The Hague (Gerechtshof’s-Gravenhage), Mustafić-Mujić v. The Netherlands, Judgment of 5 July 2011, LJN BR5386; id., Hasan Nuhanović v. The Netherlands, Judgment of 5 July 2011, LJN BR5388. 10

Federal Constitutional Court (Bundesverfassungsgericht) (FCC), 2 BvR 26660/06 and 2 BvR 487/07 of 13 August 2013, reprinted in: Europäische Grundrechte Zeitschrift 40 (2013), 563 (Varvarin); see also Klaus Ferdinand Gärditz, Bridge of Varvarin, American Journal of International Law 108 (2014), 86; Sigrid Mehring, The Judgment of the German Bundesverfassungsgericht concerning Reparations for the Victims of the Varvarin Bombing, International Criminal Law Review 14 (2014), 201; Frank Selbmann, Kriegsschäden ohne Folgen?, Die öffentliche Verwaltung 67 (2014), 272. 11

Regional Court of Bonn (Landgericht Bonn), Judgment of 11 December 2013, reprinted in: JuristenZeitung (JZ) 69 (2014), 411 (Kunduz); see also Nele Achten, Compensation Claims of Individuals for Violations of Rules on Conduct of Hostilities, Humanitäres Völkerrecht: Informationsschriften 2015, 34; Elisabeth von Henn, The Development of German Jurisprudence on Individual Compensation for Victims of Armed Conflicts: The Kunduz Case, Journal of International Criminal Justice 12 (2014), 615; Robert Frau, Anmerkung, JZ 69 (2014), 417; Higher Regional Court of Cologne (Oberlandesgericht Köln), Judgment of 30 April 2015, 7 U 4/14 available at: https://www.justiz.nrw.de/nrwe/ olgs/koeln/j2015/7_U_4_14_Urteil_20150430.html (accessed on 18 May 2015) (Kunduz).

616 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014

II. The Relevant Legal Framework in Germany A. Substantive Rules

In Germany, claims for compensation by foreign victims of armed conflict may be based upon international law, as incorporated into the domestic legal order, and on domestic rules of governmental liability. Treaty-based IHL ratified by Germany12 and enacted by parliament ranks on the same level as federal statutory law (Article 59 (2) Basic Law).13 Under prevailing legal doctrine, a treaty rule has to meet two conditions in order to provide the legal basis for individual claims. Firstly, the rule needs to be self-executing, i.e. not presume further legislative action before its application, and secondly, it needs to attribute an actionable ‘subjective’ right to individuals rather than merely corresponding with a general interest.14 As far as IHL is part of customary international law, it is directly incorporated into the domestic legal order ranking above federal statutory law but below the Basic Law (Article 25 Basic Law). The same conditions apply to potential individual claims under customary international law. The German law of governmental liability essentially rests on two pillars: On claims based on ‘Amtshaftung’ (governmental liability for tortious acts of its agents, Section 839 Civil Code,15 Article 34 Basic Law) and on claims based on ‘Aufopferung’ (‘sacrificial encroachment’).16 Under Amtshaftung, a civil servant who violates his or her official duties and thereby causes harm to an individual is personally liable for 12

See National Implementation Database of the International Committe of the Red Cross, available at: https://www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=DE (accessed on 24 April 2015)); according to Sec. 10 (4) Law on Soldiers (Soldatengesetz), 30 May 2005, Bundesgesetzblatt (BGBl.) I, 1482, as amended on 28 August 2013, BGBl. I, 3386, military orders have to comply with IHL. 13 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 23 December 2014, BGBl. I, 2438 (Basic Law). 14

Federal Administrative Court (Bundesverwaltungsgericht), BVerwGE 80, 233; Heiko Sauer, Staatsrecht III (2nd ed. 2013), 87. 15

Civil Code (Bürgerliches Gesetzbuch), 2 January 2002, BGBl. I, 42, 2909, 2003 I, 738, as amended on 21 April 2015, BGBl. I, 610. 16 See generally Andreas von Arnauld, Damages for the Infringement of Human Rights in Germany, in: Martin Schmidt-Kessel (ed.), German National Reports on the 19th International Congress of Comparative Law (2014), 545, 552 et seq.; Fritz Ossenbühl/Matthias Cornils, Staatshaftungsrecht (6th ed. 2013), 7 et seq.

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damages. Article 34 Basic Law transfers this personal liability from the acting organ to the State. Liability does not exist unless the civil servant has violated his or her duties negligently or intentionally. Furthermore, the official duty in question has to be owed to the individual claimant (third-party effect). Claims based on Aufopferung find no general statutory basis but are considered customary law.17 These claims follow the idea that individuals should receive appropriate compensation if, due to the exercise of public authority, they are not affected as part of the general public but have to bear a specific burden (Sonderopfer).18 Aufopferung nowadays covers lawful and unlawful State action (‘quasi-sacrificial encroachment’) and can be raised alongside Amtshaftung.

B. Precedents?

Just as the deployment of the German armed forces (Bundeswehr) abroad is a rather recent development, so is the corresponding legal question concerning compensation for civilian injuries and losses caused during these operations in violation of IHL.19 Varvarin and Kunduz are the first cases in this regard. While there has thus not been any jurisprudence on compensation for victims of contemporary armed conflicts yet, claims originating from Germany’s National Socialist past and concerning the innumerable atrocities committed by Germany during World War II have occupied German courts since the founding era of the Federal Republic.20 The leading case in this regard is the Distomo case, which concerned a massacre perpetrated by the German occupying troops in Greece in 1944. The Federal Court of Justice (Bundesgerichtshof) (FCJ) held in 2003 that at least according to the law of 17

Federal Court of Justice (Bundesgerichtshof) (FCJ), BGHZ 9, 83, 85; Ossenbühl/Cornils (note 16), 124 et seq. 18

von Arnauld (note 16), 554; Ossenbühl/Cornils (note 16), 129.

19

Germany first sent troops abroad in the 1990s, when the FCC paved the way for such missions, BVerfGE 90, 286. 20 See generally Rainer Hofmann, Compensation for Personal Damages Suffered during World War II, MPEPIL, para. 12, available via: http://www.mpepil.com (accessed on 24 April 2015); International Committee of the Red Cross, Customary IHL Database, Practice Relating to Rule 150. Reparation, available at: https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule150 (accessed on 24 April 2015); Philipp Stammler, Der Anspruch von Kriegsopfern auf Schadensersatz (2009), 159 et seq.

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1944, which was the relevant point in time under the rules of intertemporality, international law and German domestic rules of governmental liability did not provide victims of armed conflict with an individual right to compensation.21 Traditionally, in the event of a violation of international law only States could take up the case of one of their nationals and claim compensation on his or her behalf. This conception of international law was reflected in Article 3 Hague Regulations of 1907, which therefore did not confer a right upon individuals.22 Furthermore, the Court held that according to the prevailing legal understanding at the time German rules of governmental liability did not apply during armed conflict.23 War had been considered an exceptional situation which suspended the whole body of law of peacetime in favour of ius in bello. The court left open, however, whether this was still the case nowadays.24 The FCC dismissed constitutional complaints against the judgment in 2006 and took the same view as the FCJ in other cases.25 Significant differences exist between ‘historic’ cases and present proceedings regarding both the gravity and the quantity of violations of IHL invoked. Moreover, the international and domestic legal framework has changed considerably over the last 70 years. Nevertheless, as will be discussed, to a certain degree these cases still frame the approach of German courts to compensation for damages caused in contemporary armed conflicts.

21

FCJ, BGHZ 155, 279, 290 et seq. (Distomo).

22

Ibid., 292; Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, available at: https://www.icrc.org/ihl/INTRO/195 (accessed on 24 April 2015). Art. 3 provides: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation”. 23

FCJ, Distomo (note 21), 295 et seq.

24

Ibid., 300; in addition, Sec. 7 Law on the Liability of the Reich for Its Civil Servants (Reichsbeamtenhaftungsgesetz), 22 May 1910, Reichsgesetzblatt 798, excluded individual claims against Germany as there was no guarantee of reciprocity from Greece until 1957. 25 FCC, 2 BvR 1476/03 of 15 February 2006, reprinted in: Neue Juristische Wochenschrift (NJW) 59 (2006), 2542; see also the subsequent decision by the ECtHR, Sfountouris et al. v. Germany, Decision of 25 May 2011, available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 24 April 2015); the FCC came to the same conclusion with regard to claims by former Italian Military Internees, BVerfGK 3, 277 and in a judgment concerning expropriatons in the former Soviet occupation zone, BverfGE 112, 1, 32.

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III. The Varvarin Case In 1999, the German air force, with a mandate from the German parliament, carried out reconnaissance and escort missions in the context of NATO operation ‘Allied Force’ against the former Federal Republic of Yugoslavia. On 30 May 1999, NATO fighter planes destroyed a bridge in the town of Varvarin. Ten people died and 30 more were injured in this attack, all of whom were civilians. While it was later proven during the court proceedings that German fighter planes did not directly participate in the destruction of the bridge, it remained disputed whether the German military had contributed to the attack.26 Germany denied any prior knowledge of the air strike. It argued that according to NATO’s operation principle of ‘need to know,’ which meant that States participating in NATO missions would only have the information strictly necessary for the fulfilment of their individual military assignments, it had not been informed about the exact details of the attack.27 In 2001, 35 victims of the attack and their relatives sought compensation for personal injury from Germany. They claimed that Germany had assisted the NATO forces and had not taken action to prevent the bridge from being included on NATO’s target list. The ordinary courts rejected the claims in all instances.28 Before the FCC, the petitioners argued that the ordinary courts had violated fundamental rights guaranteed by the Basic Law.

A. Individual Claims under International Law

The ordinary courts held that international customary law, Article 3 Hague Regulations of 1907, and the near-identical Article 91 Additional Protocol I of 197729 (Additional Protocol I) did not provide victims of armed conflict with an

26

FCC, Varvarin (note 10), para. 5.

27

Ibid., para. 11.

28

Regional Court of Bonn, Judgment of 10 December 2003, reprinted in: JZ 59 (2004), 572 (Varvarin); Higher Regional Court of Cologne, Judgment of 23 July 2005, reprinted in: NJW 58 (2005), 2860 (Varvarin); FCJ, BGHZ 169, 348 (Varvarin). 29

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, UNTS 1125, 3; Art. 91 provides: “A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation”.

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individual right to compensation.30 They hereby reaffirmed the ‘traditional’ approach of international law in the face of increasing challenges both from international softlaw instruments, such as the Basic Principles mentioned, and from legal literature. Many legal scholars today contend that the ‘humanisation’ of international law over the last 70 years, which elevated the individual to a legal subject, also changed the legal situation regarding compensation for damages incurred during the course of an armed conflict.31 Evidence of an international customary right to compensation could be found in the many instances in which individual victims of armed conflict had been provided with directly enforceable claims over the last decades and in the practice of international courts and tribunals.32 Furthermore, domestic courts in other jurisdictions, such as the court of first instance in the Distomo case in Greece,33 had in the meantime (re-)interpreted the relevant treaty rules of IHL as providing for an individual right to compensation. The FCC confirmed, however, the decisions of the ordinary courts.34 It held that international practice had, at least for the time being, not added up to a customary rule of individual compensation. The FCC relied on the decision of the International Court of Justice (ICJ) in the Jurisdictional Immunities case, which had left the question of individual compensation claims open.35 It also cited the International Law Commission’s (ILC) Articles on State Responsibility for Internationally Wrongful 30 Regional Court of Bonn, Varvarin (note 28), 573; Higher Regional Court of Cologne, Varvarin (note 28), 2861; FCJ, Varvarin (note 28), 351. 31

See the study of the International Law Association (note 1); Evans (note 5), 125; Andreas FischerLescano, Subjektivierung völkerrechtlicher Sekundärregeln: Die Individualrechte auf Entschädigung und effektiven Rechtsschutz bei Verletzungen des Völkerrechts, Archiv des Völkerrechts 45 (2009), 299; Roland Bank/Elke Schwager, Is there a Substantive Right to Compensation for Individual Victims of Armed Conflict against a State under International Law?, German Yearbook of International Law 49 (2006), 367. 32

On the international level see, e.g., the United Nations Compensation Commission, which processed claims and paid compensation for losses and damages suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait in 1990–1991, SC Res. 687 of 8 April 1991, para. 18; in its first reparations decision, the International Criminal Court called the right to reparation “a well-established and basic human right,” International Criminal Court, The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute of 14 March 2012, ICC-01/04-01/06, T.Ch. I, para. 185. 33 Court of First Instance of Livadia (Πρωτοδικείο Λιβαδειάς), Prefecture of Voiotia, representing 118 persons from Distomo village v. Germany, Judgment of 30 October 1997, reprinted in: Revue Hellénique de Droit International 50 (1997), 595 (concerning Art. 3 Hague Regulations of 1907). 34

FCC, Varvarin (note 10), paras. 40 et seq.

35

Ibid., para. 43; ICJ, Jurisdictional Immunities (note 6), para. 108.

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Acts, which did not address individual claims.36 With regard to IHL treaty rules, the FCC confirmed firstly its previous decisions that Article 3 Hague Regulations of 1907 was not self-executing.37 This was due to its qualifying clause according to which a belligerent party, which violated the provisions of the respective instruments, was only liable to pay damages “if the case demands.” Secondly, Article 3 did not attribute an actionable right to individuals. Whereas the history of Article 3 showed that the drafters had intended to protect individuals and their rights, it did not necessarily follow from this that it conferred a right to compensation upon individuals. For the same reasons, the Court held that Article 91 Additional Protocol I did not provide the legal basis for an individual right. Although Article 91 was more recent, its wording did not mirror rules of international human rights law such as Article 5 (5) European Convention of Human Rights (ECHR),38 which expressly provided a right to compensation to individuals. The reasoning of the FCC may be criticised for not discussing in detail the proposed evidence of an individual right to compensation under international customary law.39 Moreover, neither the ICJ nor the ILC cited by the FCC had made a definitive statement on the issue. The ICJ had in fact made some tentative remarks on the existence of an individual right in the Israeli Wall Advisory Opinion.40 The ILC expressly pointed out that its Articles do not prejudice non-State actors’ enforcement rights.41 Looking more closely at the decision, however, the FCC did not entirely reject the possibility of individual claims but adhered to a more differentiated position, arguing strictly on the basis of positive law. On the one hand, it considered today’s individual a subject of IHL with a ‘primary’ right towards the State to ensure 36

FCC, Varvarin (note 10), paras. 43 et seq.; Art. 33 (2) ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 37

FCC, Varvarin (note 10), para. 45; see also supra, note 25.

38

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 005 (ECHR). 39

Selbmann (note 10), 276; Mehring (note 10), 199.

40

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. 152: “Israel has the obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction.” It is unclear from this statement whether the individual is to be considered a subject or an object of the “applicable rules of international law” mentioned by the ICJ. 41

See supra, note 36.

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compliance with the rules of armed conflict.42 It also confirmed, with regard to Article 5 (5) ECHR, that an individual right to compensation might be derived directly from international law, thus overcoming the former complete mediatisation of the individual.43 On the other hand, it held that “at least at present” the rules of international law concerning reparation could not be interpreted as providing an individual right.44 The FCC thus conceived the international legal position of individuals in armed conflict on two levels: as subjects of international law on the level of substantive law and as mediated objects with regard to reparation. While this is hardly a vanguard position, it may be more receptive of future change.45 The recognition of individual ‘primary’ rights under IHL is also of relevance for claims under German domestic rules of governmental liability, which presuppose the violation of individual interests recognised by law (see infra, IV.B.).

B. The Role of the Courts in State Liability Suits

The FCC did not decide upon the question whether the domestic rules of governmental liability were nowadays applicable to military conduct abroad. It did, however, discuss the way individual claims for compensation had, in any event, to be dealt with by domestic courts. Similar to courts in other jurisdictions,46 the ordinary courts in Varvarin had granted a margin of appreciation to the military because of the ‘political nature’ of the choice of military targets.47 The fact that Germany had not vetoed the 42 FCC, Varvarin (note 10), para. 46; this was in line with the FCC’s earlier case law, see supra, note 25. 43

Ibid., para. 47.

44

Ibid., para. 43.

45

Regarding the impact of the decision on German judicial practice, it is very unlikely, however, that after this pronouncement domestic courts will revisit the question of individual claims under IHL in the near future. According to Art. 100 (2) Basic Law, German courts have to refer a case to the FCC if there are serious doubts about the existence of a rule of international law. With regard to individual compensation claims, ordinary courts cannot diverge from the view of the FCC in Varvarin but will have to refer again to the FCC. 46

See, e.g., Italian Court of Cassation, Presidenza del consiglo dei ministri c. Markovic (note 7); Israeli Supreme Court, Ajuri v. IDF Commander, Decision of 3 September 2002, HCJ 7015/02, para. 30, available at: http://elyon1.court.gov.il/files_eng/02/150/070/A15/02070150.a15.pdf (accessed on 24 April 2015). 47

FCJ, Varvarin (note 28), 361; Higher Regional Court of Cologne, Varvarin (note 28), 2865.

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inclusion of the bridge into the target files of NATO could therefore not be subject to full judicial review. The FCC rejected this approach because of the fundamental right to a judicial remedy as guaranteed by the Basic Law, which also applied to foreign victims of armed conflict.48 It considered that the choice of military targets was not exempted from the constitutional standard of full judicial review, as such decisions were not of a political nature and their review did not go beyond the capability of a court. Moreover, it criticised the ordinary courts’ position on the question of evidence. The FCC determined that the courts had to take into account the weak position of the claimants and the constitutional value of State liability suits, which may entail a modification of the rules of procedure in favour of the claimants. More specifically, the FCC reckoned that courts may have to redistribute the burden of proof in favour of the individual applicant in situations where it is impossible to prove the existence of specific military information.49 Ultimately, despite these points of criticism, the FCC did not refer the case back to the ordinary courts. It held that even under full judicial scrutiny the inclusion of the bridge of Varvarin into the target files of NATO could not have violated Article 51 Additional Protocol I. The decision on the actual attack had been taken at a later stage in which Germany no longer was involved. In the prior stage of the inclusion of the target into the file list there had been a lower standard of due care. This standard had not been violated, as the bridge of Varvarin had not been an illegitimate target per se.50 Likewise, the FCC held that redistributing the burden of proof could not lead to different results. Due to the operational principle of ‘need to know’ it had already been proved that the German military had not known of the target of the attack and it was therefore not liable under the rules of governmental liability.51

C. Conclusion

As the FCC dismissed the complaints of the victims of the Varvarin attack, and briefly rejected the existence of individual claims for violations of IHL under interna48

FCC, Varvarin (note 10), para. 53.

49

Ibid., para. 61.

50

Ibid., para. 56.

51

Ibid., para. 66.

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tional law, its decision could be seen, on first examination, as a confirmation of the weak legal position of victims of armed conflicts. However, the FCC also confirmed that individuals could be considered as subjects of IHL, which is relevant under the domestic rules of governmental liability. Moreover, its obiter dicta clarified and strengthened the role of the civil courts in State liability suits concerning military operations.52 It was in these aspects that the Varvarin case has been most significant for the second proceeding under review, the Kunduz case.

IV. The Kunduz Case In Kunduz, two Afghan citizens sought compensation from Germany for harm caused by an air strike of the NATO-led International Security Assistance Force in Afghanistan (ISAF). On the night of 4 September 2009 the ISAF commander in Kunduz, a colonel of the Bundeswehr, had ordered the airstrike in order to destroy two fuel trucks which had been previously captured by Taliban fighters and which lay stuck on a sand bank in the middle of the Kunduz River. The attack destroyed both trucks and the explosion led to the death and wounding of nearly all persons in the immediate vicinity. It is still unknown exactly how many people were killed or wounded. According to the inquiry of the German parliament, reports vary between fourteen to 142 dead and ten to 33 wounded persons.53 Contrary to what the military intelligence had suggested it later appeared that a large number of these persons had been civilians from nearby villages who had been forced by the Taliban or who had come voluntarily to remove fuel from the tankers. Numbers vary between 23 and 113 civilian casualties.54 In terms of the numbers of victims, the attack was the severest in the history of the Bundeswehr.

52

Gärditz (note 10), 93; Selbmann (note 10), 280.

53

German Parliament (Deutscher Bundestag), Report of the Parliamentary Inquiry Committee: Beschlussempfehlung und Bericht des Verteidigungsausschusses als 1. Untersuchungsausschuss gemäß Art. 45a Abs. 2 des Grundgesetzes, Bundestagsdrucksachen (BT-Drs.) 17/7400, 25 October 2011, 84; the United Nations Assistance Mission in Afghanistan concluded in a report that there had been 109 dead, 74 of which were civilians, and 33 wounded, see ibid., 83. 54

Ibid., 83.

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The German government always denied any kind of financial liability for injuries suffered through the airstrike.55 In 2010 each family that fell victim to the attack received voluntary financial assistance of US$ 5,000 from Germany, which was considered a measure of humanitarian assistance.56 In 2011 the plaintiffs, a father of two children killed in the attack and a widowed mother of six sought compensation of € 40,000 and € 50,000 respectively before the Landgericht Bonn. The court dismissed the case in December 2013 on the merits.57 In April 2015, the dismissal was upheld on appeal by judgment of the Oberlandesgericht Cologne.58

A. The Applicability of German Law of Governmental Liability

Both the Landgericht and the Oberlandesgericht adhered to the FCC’s view that contemporary international law did not confer a right to compensation to individual victims of armed conflict.59 Both courts considered, however, that the rules of Amtshaftung were applicable ratione materiae to military actions abroad. The Higher Regional Court of Cologne had already held in its judgment in Varvarin that under the “system of values instituted by the Basic Law,” Amtshaftung could no longer be con55 In March 2010 the Federal Public Prosecutor initiated preliminary criminal investigations against the colonel and another officer under the German Codes of Criminal and of International Criminal Law. These investigations were, however, dropped shortly afterwards, as the prosecution concluded that the accused had neither intended nor expected to cause disproportionate civilian casualties, Federal Public Prosecutor, Decision on criminal investigations (Ermittlungsverfahren gegen Oberst Klein und Hauptfeldwebel W. wegen des Verdachts einer Strafbarkeit nach dem VStGb und anderer Delikte), 16 April 2010, 28, available at: https://www.generalbundesanwalt.de/docs/einstellungsvermerk20100416offen.pdf (accessed on 24 April 2015). 56 German Parliament (Deutscher Bundestag), Reply of the German government to a parliamantary inquiry: Unterstützungsleistung für Opfer des Luftschlags nahe Kundus. Kleine Anfrage der Abgeordneten Heike Hänsel et al., BT-Drs. 17/3723, 22 November 2011. See the critical remarks by von Henn (note 11), 625. 57

Regional Court of Bonn, Kunduz (note 11).

58

Higher Regional Court of Cologne, Kunduz (note 11).

59

Regional Court of Bonn, Kunduz (note 11), paras. 39 et seq.; Higher Regional Court of Cologne, Kunduz (note 11), paras. 24 et seq.; the courts did, however, not take into account that unlike in former Yugoslavia, there had been a non-international armed conflict in Afghanistan in 2009. Art. 3 Hague Regulations of 1907 and Art. 91 Additional Protocol I were in fact not applicable, see Federal Public Prosecutor (note 55), 42. Yet, as the formation of a customary right to compensation is even less conclusive regarding non-international armed conflicts, the Court would probably not have drawn a different conclusion, see Tomuschat (note 5), 815.

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sidered as being suspended during armed conflict.60 The Landgericht in Kunduz also considered that Amtshaftung was applicable, although it did not explain why it thought this was the case.61 As has been mentioned above, in Distomo the FCJ had left the question deliberately open whether under today’s legal framework Amtshaftung could apply to military actions abroad (see supra, II.B.). Many good reasons speak in favour of the applicability of the domestic rules of governmental liability to military actions.62 These rules are applicable from a conflict of law perspective to German sovereign acts abroad.63 Regarding their applicability ratione materiae the wording of the relevant rules does not contain an express exclusion and the FCC held already in 1996 that the non-existence of an individual title under international law does not exclude a possible title under domestic law.64 Moreover, fundamental rights are generally binding upon German soldiers even in military operations abroad and the constitutional principles of the rule of law and of judicial review demand that, in general, a violation of a right shall be prevented, redressed, or compensated.65 As a matter of legal policy, the significance of IHL could be reinforced via the threat of liability. Whereas some authors point to a potential political isolation of Germany due to increased judicial surveillance of joint military operations,66 a flood of litigation is unlikely considering the small number of cases that have been brought thus far in nearly twenty years of foreign deployments. Rather, the possibility of judicial oversight at the domestic level may put further pressure on international organisations such as NATO to provide effective remedies and thereby close 60

Higher Regional Court of Cologne, Varvarin (note 28), 2862; id., Kunduz (note 11), para. 30.

61

Regional Court of Bonn, Kunduz (note 11), para. 49.

62

See generally Selbmann (note 10), 279; von Henn (note 11), 633 et seq.; Anatol Dutta, Amtshaftung bei bewaffneten Auslandseinsätzen, Archiv des öffentlichen Rechts 133 (2008), 191, 209 et seq.; Stefanie Schmahl, Amtshaftung für Kriegsschäden, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 66 (2006), 699, 710 et seq. 63

The lex loci delicti rule does not apply to governmental action, Dutta (note 62), 206; Heß (note 5),

118. 64

FCC, BVerfGE 94, 315, 329.

65

Steffen Detterbeck/Kay Windthorst/Hans-Dieter Sproll, Staatshaftungsrecht (1999), 8; the FCC, however, denies a general obligation to compensate the individual for violations of his or her fundamental rights, 1 BvR 1541/09 and 1 BvR 2685/09 of 26 February 2010, reprinted in: NJW 27 (2010), 1943, 1945. 66

Gärditz (note 10), 93; Christian Raap, Staatshaftungsansprüche im Auslandseinsatz der Bundeswehr?, Neue Zeitschrift für Verwaltungsrecht 32 (2013), 552.

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the ‘remedy gap’ that currently exists on the international level. Lastly, looking at international law, although it may not provide the individual with directly enforceable claims, it does oblige the State to provide for effective remedies under domestic law, even concerning violations of IHL. The European Court of Human Rights has confirmed the duty of States to provide for compensation under domestic law following violations of the right to life (Article 2 ECHR), which remains applicable during armed conflict.67 It is in this regard that the Basic Principles clarify existing obligations of States to provide for domestic remedies with regard to victims of armed conflict. Under the constitutional principle of “Völkerrechtsfreundlichkeit,” openness to international law, domestic law must be interpreted in order to avoid conflict with Germany’s international legal obligations.68 In sum, an unwritten exclusion of claims of governmental liability in armed conflict no longer appears conceivable. Whereas the Higher Regional Court in Kunduz limited applicability to claims under Amtshaftung,69 there is also no reason to exclude claims based on Aufopferung with regard to military actions. On the contrary, civilian casualties may be an unintended result of legal military operations and thereby fit in with the idea of a Sonderopfer.70

B. Violations of IHL and the Rules of Governmental Liability

Having confirmed the applicability of governmental liability under Amtshaftung, the main question of the Kunduz case concerned a possible violation of IHL by the German commander. Both courts considered that there was a non-international armed conflict in Afghanistan, which rendered the rules of IHL applicable.71 The 67

ECtHR, Aksoy (note 2); id., Isayeva v. Russia, Judgment of 24 February 2005, reprinted in: Europäische Grundrechte Zeitschrift 37 (2006), 32, 38; see Tomuschat (note 5), 818, with further references. 68

See FCC, BVerfGE 111, 307, 317 et seq.; Dutta (note 62), 211.

69

Higher Regional Court of Cologne, Kunduz (note 11), para. 26; based on Ossenbühl/Cornils (note 16), 127. 70 Udo Moewes, Staatshaftungsrechtliche Implikationen automatisierter Kriegsführung, in: Robert Frau (ed.), Drohnen und das Recht: Völker- und verfassungsrechtliche Fragen automatisierter und autonomer Kriegsführung (2014), 193, 197; Andreas Schüller, Die Haftung des Staats im bewaffneten Konflikt, in: Dieter Weingärtner/Heike Krieger (eds.), Streitkräfte und nicht-staatliche Akteure (2013), 149, 154. 71 Regional Court of Bonn, Kunduz (note 11), para. 51; Higher Regional Court of Cologne, Kunduz (note 11), paras. 36 et seq.; see, however, supra, note 59.

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official duty of the colonel was then to comply with IHL when he ordered the attack.72 Significantly, the Landgericht confirmed that these rules had third partyeffect.73 As has been mentioned above, a civil servant is not liable under Amtshaftung for violations of each and any of his or her official duties but only of those duties that are, at least additionally, owed towards the individual (see supra, II.A.). This condition narrows the scope of liability both materially and personally, as the official duty in question must have intended the protection of the interests of the very claimant rather than being merely directed at a general interest.74 With regard to IHL, the Landgericht stated: “the purpose – not merely the side-effect – of IHL and in particular of the additional protocols is to protect individuals affected by armed conflict.”75 The FCJ in Distomo had confirmed third-party effect only in an obiter dictum.76 The Oberlandesgericht left the question open.77 There is, however, no doubt that IHL also has the object of protecting civilians. The FCC even went beyond the condition of third-party effect when it concluded that the individual could be considered as a subject of IHL with a ‘primary right’ towards the State to ensure compliance with the rules of armed conflict.78 Just as IHL is the relevant standard of conduct, it also has to be considered as the relevant standard of liability during armed conflict. Concerning other potential official duties both courts rejected NATO’s Rules of Engagement (RoE) as standards of liability because their legal effect had been limited to the internal military structure.79 This could be criticised, as official duties relevant for Amtshaftung may also follow from internal service regulations.80 The only point at issue would be then whether the RoE intend to protect individual civilians. As the

72

See supra, note 12.

73

Regional Court of Bonn, Kunduz (note 11), paras. 57 et seq.

74

Ossenbühl/Cornils (note 16), 60.

75

Regional Court of Bonn, Kunduz (note 11), para. 59.

76

FCJ, Distomo (note 21), 296.

77

Higher Regional Court of Cologne, Kunduz (note 11), paras. 36 et seq.

78

See supra, note 42.

79

Regional Court of Bonn, Kunduz (note 11), para. 92; Higher Regional Court of Cologne, Kunduz (note 11), para. 84; see also Frau (note 11), 419. 80

Selbmann (note 10), 282; Ossenbühl/Cornils (note 16), 45.

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RoE are classified, there is not, however, sufficient information to reach a conclusive assessment in this regard.81

C. The Decision on the Merits

After an extensive review of the facts, the Landgericht held that the colonel had not culpably violated IHL when he ordered the attack on the tankers in the Kunduz River.82 The Oberlandesgericht upheld these findings on appeal.83 In their assessment of the attack the courts relied on the ex ante perspective of a reasonable commander in the specific situation.84 The courts found no violation of Article 13 (2) Additional Protocol II of 1977 (Additional Protocol II).85 They considered that the colonel had wanted to take out the trucks and the surrounding Taliban, which had been legitimate targets, and that the colonel had not been aware of the presence of civilians near the site.86 Moreover, they found that the colonel had not violated the duty to take precautions to spare civilians when he chose the target (Article 57 (1) and (2)(a)(i) Additional Protocol I; Article 13 (2) Additional Protocol II).87 The colonel had relied mainly on an infor81

Selbmann (note 10), 282; but see Andreas Fischer-Lescano/Steffen Kommer, Entschädigung für Kollateralschäden?, Archiv des Völkerrechts 50 (2012), 156, 172. 82

Regional Court of Bonn, Kunduz (note 11), paras. 60 et seq.

83

Higher Regional Court of Cologne, Kunduz (note 11), paras. 43, 47, 60 et seq.

84

Regional Court of Bonn, Kunduz (note 11), para. 91; Higher Regional Court of Cologne, Kunduz (note 11), para. 47; the ex ante perspective of a reasonable commander is required by Sec. 276 (2) Civil Code and by IHL, see International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, The Prosecutor v. Stanislav Galić, IT-98-29-T, Judgment of 5 December 2003, para. 58, available at: http:// www.icty.org/x/cases/galic/tjug/en/gal-tj031205e.pdf (accessed on 19 May 2015); Fischer-Lescano/ Kommer (note 81), 166 (with regard to the proportionality rule); but see Achten (note 11), 39 et seq., and von Henn (note 11), 632 proposing an ex post perspective with regard to questions of liability. 85

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, UNTS 1125, 609; Art. 13 (2) provides: “The civilian population as such, as well as individual civilians, shall not be the object of attack […]”. 86 Regional Court of Bonn, Kunduz (note 11), para. 60; Higher Regional Court of Cologne, Kunduz (note 11), para. 62. 87 Regional Court of Bonn, Kunduz (note 11), paras. 61 et seq.; Higher Regional Court of Cologne, Kunduz (note 11), paras. 63 et seq.

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mant who had reported from near the site and who had confirmed several times that all people on the sandbank were insurgents. Both courts confirmed that the informant could be considered as trustworthy by the colonel and that the video images transmitted by the fighter jets had not clearly disproved this information.88 Furthermore, the Oberlandesgericht rejected the plaintiffs’ contention that a reasonable commander would have ordered a ‘show of force’ by the fighter jets before ordering the attack, as such a measure would not have led to additional information on the presence of civilians near the site.89 In sum, it was concluded that the colonel had taken all feasible measures of precaution in the situation and that he could not have anticipated that a large number of the persons on the sandbank were in fact civilians. From this it also followed that there had not been a culpable violation of the duty to take precautions in the choice of means and methods of attack (Article 57 (2)(a)(ii) Additional Protocol I), of the principle of proportionality (Article 57 (2)(a)(iii) Additional Protocol I) or of the duty to give advance warning (Article 57 (2)(c) Additional Protocol I).90 While the courts thus rejected the claims of the victims of the Kunduz attack, they confirmed that under German domestic law individual victims of armed conflict could generally invoke the liability of Germany for violations of IHL.91

V. Conclusion The Varvarin and Kunduz cases confirm a growing consensus in Germany that claims under the domestic rules of governmental liability should be generally available 88

Regional Court of Bonn, Kunduz (note 11), paras. 65 et seq.; Higher Regional Court of Cologne, Kunduz (note 11), paras. 73 et seq. 89

Higher Regional Court of Cologne, Kunduz (note 11), para. 70.

90

Regional Court of Bonn, Kunduz (note 11), paras. 64 et seq.; Higher Regional Court of Cologne, Kunduz (note 11), para. 86. 91

The Higher Regional Court also confirmed that Germany was the responsible entity to which the colonel’s potential personal liability under Amtshaftung would have been transferred (Art. 34 Basic Law). Germany had argued that there had been a “transfer of authority” over its employee to NATO. The Court, however, rejected this argument and considered that despite NATO’s operative control over German troops in Afghanistan, Germany still had been able to exert considerable influence on military and political levels regarding the deployment of its soldiers, see Higher Regional Court of Cologne, Kunduz (note 11), paras. 31 et seq.

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to victims of armed conflict and that these claims are to be assessed by domestic courts no differently than claims concerning ‘regular’ State conduct. This normality is exceptional, considering the historic development of individual compensation for victims of armed conflict under German law, international law, and under the national laws of other States. Moreover, whereas none of the claimants have been awarded compensation, both cases show that the policy arguments against claims by victims of armed conflict are not convincing.92 The cases were not more than the courts could handle and a condemnation of Germany would not have led to unbearable financial strain. The Varvarin case strengthened the role of the courts and confirmed the standard of full judicial review. The Kunduz case confirmed the applicability of the rules of Amtshaftung and the importance of IHL as the relevant standard of conduct of the individual soldier and of liability of the State. Whereas the bulk of legal reasoning concerned German domestic law, the cases are still likely to affect the international debate on compensation for victims of armed conflict. While on the one hand they will serve as a precedent against a directly enforceable right to compensation under international law, they will on the other hand strengthen core aspects of the Basic Principles: that individual compensation is not only a humanitarian obligation but also a legal duty and that the right to an effective remedy and reparation under national law also extends to victims of armed conflict.93

92

See von Henn (note 11), 635; Selbmann (note 10), 280; Schüller (note 70), 150; Dutta (note 62),

210. 93 Principle 8 (d) Basic Principles; see also International Law Association, Reparation for Victims of Armed Conflict, (note 1), Art. 13: “Notwithstanding and without prejudice to the rights set out in the present Declaration, States shall assure that victims have a right to reparation under national law […]”.

Ending Impunity for the Bottommost Diplomatic Caste: German Practice in Relation to Domestic Workers in Diplomatic Households ARNE REIßMANN( AND SARAH BOTHE((

I. Introduction Domestic worker abuse in diplomatic households affects international relations and politics and is therefore a delicate issue. Germany is host State for about 4,200 diplomatic agents, consular officers, and administrative and technical staff in diplomatic missions or consular posts.1 These persons are allowed to employ domestic workers in their households, who work as helpers, nannies, cooks, gardeners, or chauffeurs.2 In 2012, 226 domestic workers were registered with the German Federal Foreign Office (Auswärtiges Amt).3 Whereas numbers of reported cases of domestic worker abuse in Germany are not prominently high, several cases that came to public attention in the last years unveiled grievances that allow assuming a larger dark figure that calls for action.

(

Mag. iur., Research Associate and Doctoral Candidate at the Walther Schücking Institute for International Law, University of Kiel. ((

Student Research Assistant at the Walther Schücking Institute for International Law, University of Kiel. 1

German Parliament (Deutscher Bundestag), Answers of the Federal Government to Questions of Parliamentarians: Rechte von Hausangestellten in Diplomatenhaushalten, Bundestagsdrucksache (BTDrs.) 17/10325, 10 July 2012, 2. 2 Angelika Kartusch, Domestic Workers in Diplomats’ Households (2011), 5, available at: http:// www.institut-fuer-menschenrechte.de/uploads/tx_commerce/domestic_workers_in_diplomats_ households_03.pdf (accessed on 2 April 2015). 3

German Parliament (note 1), in particular, 65 workers were from the Philippines, 26 from Indonesia, twelve from India, and ten from Kenia, to name the most numerous countries of origin.

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As a recently published study under the auspices of the Organization for Security and Co-operation in Europe (OSCE)4 points out, domestic worker abuse, ranging from labour law offences to severe physical and sexual maltreatment, can amount to forms of human trafficking as defined in the relevant Palermo Protocol5 and the Council of Europe Convention on Action against Trafficking in Human Beings.6 Domestic servitude is a form of human trafficking which is difficult to detect because it takes place behind closed doors. Moreover, in diplomatic households domestic workers are especially vulnerable because of the diplomatic immunity granted to their employers. Despite the fact that not all forms of domestic worker abuse fulfil the definition of human trafficking, they may still constitute a deprivation of fundamental human rights guaranteed in national and international law. Domestic workers in diplomatic households who seek to remedy their suffering, whether in criminal or civil proceedings, in the host or the home State of the diplomat, frequently face a wall of impunity.7 This phenomenon has raised broader academic attention in the United States, but not in continental Europe.8 This article will deal with recent proceedings in German courts as well as legislative measures in the German Parliament (Deutscher Bundestag) that shed light on the vulnerable situation of domestic workers in diplomats’ households in Germany. In January 2013, proceedings of an Indonesian domestic worker against her employer, who used to be an attaché in the embassy of Saudi Arabia in Berlin, came to an end after two years of trial in all of the three instances of the German labour court

4

OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, How to Prevent Human Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers (2014), 12, 13, available at: http://www.osce.org/handbook/ domesticservitude?download=true (accessed on 2 April 2015). 5

Art. 3 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, UNTS 2237, 319 (Palermo Protocol). For Germany: Bundesgesetzblatt (BGBl.) 2005 II, 954, 995, in force since 14 July 2006. 6 Art. 4 Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, CETS No. 197. For Germany: BGBl. 2012 II, 1107, in force since 1 April 2013. 7 Janie A. Chuang, Achieving Accountability for Migrant Domestic Worker Abuse, North Carolina Law Review 88 (2010), 1627, 1641. 8

Clíodhna Murphy, Researching Barriers to Access to Justice for Migrant Domestic Workers in Diplomatic Households, Industrial Law Journal 42 (2013), 447, 448.

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system (Arbeitsgerichtsbarkeit).9 The complaint brought against the diplomat consisted of three counts: the payment of wages, travel expenses, and an award for injuries suffered during the term of contract. The proceedings, which will be presented more thoroughly in part II, have been triggered on behalf of the Indonesian worker by the Chief Executive Officer (CEO) of the Hans-Böckler-Foundation, administered by German lawyers and supported by the German Institute for Human Rights. The latter published a study examining the situation of domestic workers in diplomats’ households in June 2011, right at the time when the first judgment in this case was delivered.10 Although the proceedings ended in a settlement, they brought to the fore the underlying legal problems with which this article will deal in detail (see infra, II.B.). Another development that may influence the situation of domestic workers is the ratification and entry into force for Germany of the International Labour Organization (ILO) Convention (No. 189) Concerning Decent Work for Domestic Workers.11 Since the recommendations to the ILO Convention entail a bundle of measures concerning domestic workers in diplomats’ households,12 the signing of the ILO Convention by the German federal government raised hope and expectations of an improvement of the (legal) situation of domestic workers.13 Whereas no explicit legal measures were adopted in this regard, some improvements in the administrative sphere, that are to be discussed in part III, have been implemented.

9

Labour Court (Arbeitsgericht) Berlin, Judgment of 14 June 2011, 36 Ca 3627/11; Higher Labour Court (Landesarbeitsgericht) Berlin-Brandenburg, Judgment of 9 November 2011, 17 Sa 1468/11; German Federal Labour Court (Bundesarbeitsgericht), Judgment of 22 August 2012, 5 AZR 949/11; Labour Court Berlin, Declaration of settlement of proceedings of 19 January 2013, 36 Ca 3627/11. 10

Kartusch (note 2).

11

Convention (No. 189) Concerning Decent Work for Domestic Workers, 16 June 2011, Registration Number 51379 (ILO Convention). For Germany: BGBl. 2013 II, 922, in force since 20 September 2014. 12

International Labour Organization (ILO), R201 – Domestic Workers Recommendation, 2011 (No. 201), Recommendation Concerning Decent Work for Domestic Workers, 16 June 2011, para. 26 (4), available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE: R201 (accessed on 2 April 2015). 13

German Parliament, Motion of the Parties SPD and Bündnis 90/DIE GRÜNEN in the German Parliament: Arbeitsbedingungen von Hausangestellten verbessern – ILO-Übereinkommen Nr. 189 ratifizieren, BT-Drs. 17/11370, 7 November 2011, 3.

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II. The Ratnasari Case before German Labour Courts The case of an Indonesian domestic worker against her employer,14 a Saudi Arabian diplomat, could have set a new legal precedent concerning the relationship between diplomatic immunity and employment law and might even have been transferred to the German Federal Constitutional Court (Bundesverfassungsgericht) for clarification of constitutional and international law issues – but ended up in a settlement.15 Originally, the plaintiff demanded about € 32,000 payment of wages and at least € 40,000 in compensation for pain and suffering.16

A. Facts of the Case

Miss Ratnasari, who was employed as a domestic worker from April 2009 to February 2011 by the attaché of Saudi Arabia in Berlin, claimed that she worked seven days per week and up to twenty hours per day, frequently abused and humiliated by her employer and his family. She had to sleep on the bare ground in the children’s bedroom only covered up with a thin sheet. Her meals consisted of leftovers from the day before, instead of being provided with free room and board as it was agreed on in her working contract. In addition to this, she never had a day off and was only paid once.17 Furthermore, the woman’s passport was confiscated and she was not allowed to leave the house or to keep in touch with her family.18 The defendant, however, rejected the accusations as baseless and claimed diplomatic immunity from civil suit under the provisions of the Vienna Convention on

14

See supra, note 9.

15

Labour Court Berlin, Declaration of settlement of proceedings of 19 January 2013 (note 9).

16

Higher Labour Court Berlin-Brandenburg (note 9), para. 9.

17

See ibid., para. 3.

18

Constanze von Bullion, Wenn Hausangestellte wie Putzlumpen behandelt werden, Süddeutsche Zeitung, 9 November 2011, available at: http://www.sueddeutsche.de/panorama/debatte-umdiplomatische-immunitaet-wenn-hausangestellte-wie-putzlumpen-behandelt-werden-1.1185344 (accessed on 15 February 2015).

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Diplomatic Relations (VCDR)19 and Section 18 German Courts Constitution Act (Gerichtsverfassungsgesetz).20

B. The Underlying Legal Framework

As the present case raises the issue of diplomatic immunity, the legal underpinnings of the case are first elaborated on in this section. An important distinction must be made from the beginning: A different set of rules is applicable where a worker is employed not by a diplomatic agent but directly by an embassy or consulate. In those cases, the law in Germany points to the fact that State immunity bars any proceedings against a sending State in the host State of an embassy or consulate as long as sovereign acts are concerned.21 This follows from Section 20 (2) German Courts Constitution Act which exempts people and entities from the German judicial system as required by international law, the latter being applicable according to Article 25 German Basic Law (Grundgesetz).22 This results in the scrutiny of the nature of the relevant act or the underlying legal relationship by German courts. In this regard, German courts take into account the relevant customary international law relating to State immunity as it is reflected in the United Nations Convention on Jurisdictional Immunities of States and Their Property.23 The constellation to be analysed in the following is thus a different one, although the previous findings will be of certain relevance at a later point.24

19

Vienna Convention on Diplomatic Relations, 18 April 1961, UNTS 500, 95 (VCDR). For Germany: BGBl. 1964 II, 957, in force since 11 December 1964. 20

Courts Constitution Act (Gerichtsverfassungsgesetz), 9 May 1975, BGBl. I, 1077, as amended on 2 July 2013, BGBl. I, 1938; Higher Labour Court Berlin-Brandenburg (note 9), para. 4. 21 German Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 117, 141; German Federal Labour Court, BAGE 113, 327, 331; id., Judgment of 1 July 2010, 2 AZR 270/09, paras. 21–23. 22

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. 23 United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, UN Doc.A/59/508 (2004), not in force. 24

See infra, II.D.3.

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1. Legal Status of the Employer As it concerns the legal status of the employer, the underlying legal framework to the problem is to be found in the VCDR of 1961 and in the Vienna Convention of Consular Relations (VCCR) of 1963.25 Most importantly, the VCDR states in its Article 29 that the person of a diplomatic agent shall be inviolable. Article 31 (1) VCDR states that members of the mission with diplomatic rank enjoy absolute immunity from criminal jurisdiction of the host State. Furthermore, they enjoy immunity – apart from certain exceptions – from administrative and civil jurisdiction. Notwithstanding the fact that immunity from the host State’s jurisdiction is granted, this does not mean that diplomats enjoy immunity in their home State as well (Article 31 (4) VCDR). Diplomats therefore can be prosecuted and convicted for any illegal acts in the context of domestic worker abuse in their home State. For the purpose of this article, it is adequate to note – leaving aside other grades of immunity for diplomatic staff – that in most cases of employment of domestic workers the respective employer as head of a mission or member of the diplomatic staff enjoys immunity from the host State’s jurisdiction.26 Whereas immunity for acts performed in the exercise of a diplomat’s functions subsists after the finalisation of this mission, immunity for all other acts ceases when the diplomat leaves the country (Article 39 (2) VCDR). The latter applies also to the work relationships of diplomats with domestic workers.27

2. Legal Status of the Domestic Worker Domestic workers in the wording of the VCDR are defined as ‘private servants.’ Article 1 (h) VCDR defines ‘private servant’ as a person who is in the domestic service of a member of the mission and who is not an employee of the sending State. Domestic workers as ‘private servants’ must be distinguished from members of the 25

Vienna Convention of Consular Relations, 24 April 1963, UNTS 596, 26 (VCCR). For Germany: BGBl. 1969 II, 1585, in force since 7 October 1971. This article will only deal with personnel in diplomatic missions, notwithstanding that the phenomenon of domestic worker abuse may also occur in relation to employers with consular immunities, which are generally more limited, cf. OSCE (note 4), 26. 26

See infra, III.

27

Kartusch (note 2), 17.

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service staff who are to a small extent entitled to immunities.28 Therefore, domestic workers do not enjoy any immunities. Domestic workers do not obtain a residence permit,29 but a special protocol ID card issued by the Federal Foreign Office.30 Their work is not classified as employment for which a special permission is needed.31 This means that they are strictly bound to their employer, not allowed to enter the country before their employer enters Germany, nor entitled to stay longer than the employer, nor even to stay in case of early termination of the employment contract. As the applicability of German labour (and other civil) law to the employment relationship between a domestic worker and a diplomat in Germany is concerned, it follows from Article 41 (1)(1) VCDR that German law is generally applicable unless there are any special exceptions for diplomats.32 Although contractors may choose which national (labour) law shall apply to a contract (Article 8 Rome I Regulation33), it is in no way possible to deprive a worker of those rights which would apply if German law were applicable and which cannot be derogated. This will result in most cases of domestic workers in the applicability of German labour law.34

C. Proceedings of the Case

Miss Ratnasari’s claim had been ceded to the CEO of the Hans-Böckler-Foundation, because she feared harsh consequences if she proceeded against her former employer by herself. Miss Ratnasari’s claim has been dismissed in two judicial in28

OSCE (note 4), 25.

29

See Sec. 27 (1) No. 3 Residence Regulation (Aufenthaltsverordnung), 25 November 2004, BGBl. I, 2945, as amended on 3 March 2015, BGBl. I, 218. 30 Ban Ying, Information for Domestic Workers Working for Diplomats (2012), 4, 6, available at: http://www.ban-ying.de/sites/default/files/Brosch%C3%BCre%20Hausangestellte%202012.pdf (accessed on 16 February 2015). 31

See Sec. 42 (1) No. 4 Residence Act (Aufenthaltsgesetz), 25 February 2008, BGBl. I, 162, as amended on 6 September 2013, BGBl. I, 3556, and Sec. 30 No. 4 Employment Regulation (Beschäftigungsverordnung), 6 June 2013, BGBl. I, 1499, as amended on 6 November 2014, BGBl. I, 1683, in connection with Sec. 27 (1) No. 3 Residence Regulation. 32

Eileen Denza, Diplomatic Law: Commentary on the Vienna Conventions on Diplomatic Relations (3rd ed. 2008), 460, 461; Ivor Roberts, Satow’s Diplomatic Practice (6th ed. 2009), 150, 151. 33 Regulation (EC) No. 593/2008 of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), OJ 2008 L 177, 6. 34

See German Federal Labour Court, Judgment of 10 April 2014, 2 AZR 741/13, 37–41.

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stances due to lack of jurisdiction.35 On 14 June 2011 the Labour Court dismissed the claim and pointed out that the Court had no jurisdiction over a diplomat particularly with regard to Section 18 German Courts Constitution Act.36 The plaintiff appealed against the judgment to the Higher Labour Court and argued that diplomatic immunity only applies to criminal jurisdiction in the receiving State but not to civil jurisdiction and human rights violations. Furthermore, the plaintiff reasoned that diplomatic immunity cannot overrule the protection of human rights. Moreover, it would be impossible for the plaintiff to get a fair trial in Saudi Arabia.37 Additionally, the plaintiff claimed that her right to property (Article 14 German Basic Law) and the right to a fair trial (Article 20 German Basic Law) had been violated through the rule of immunity law and thus through Section 18 German Courts Constitution Act. A transfer of the case to the German Constitutional Court to clarify whether Section 18 German Courts Constitution Act was constitutional had been envisaged but has not been pursued due to a settlement agreement.38 Finally, in August 2012, the Federal Labour Court referred the matter back to the Labour Court for renewed decision right after the defendant had left Germany. The Court based its decision on the termination of immunity of a diplomatic agent when leaving the receiving State.39 The Labour Court, however, settled the lawsuit and granted the plaintiff € 35,000.40

D. Legal Problems of the Case

The case illustrates paradigmatically the legal problems related to domestic worker abuse in diplomatic households. The Higher Labour Court denied a violation of Article 14 German Basic Law. Even though civil claims are within the scope of Article 14 35

See supra, note 9.

36

Labour Court Berlin (note 9).

37

Higher Labour Court Berlin-Brandenburg (note 9), para. 7.

38

Klaus Bertelsmann, Hausangestellte und arbeitsrechtliche Problemstellungen (2014), 10, 11, available at: http://bertelsmann-gaebert.de/downloads/hausangestellte-und-arbeitsrechtliche-problems.pdf (accessed on 16 February 2015). 39 40

See Art. 39 (2) VCDR; Federal Labour Court (note 9), para. 10.

Kirsten Scheiwe, Menschenwürdige Arbeit für Hausangestellte: Zur Bedeutung des ILO-Übereinkommens 189 für Deutschland, in: Uta Meier-Gräwe (ed.), Die Arbeit des Alltags (2015), 39.

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German Basic Law, Section 18 German Courts Constitution Act does not affect the existence of the claims but merely bars their enforcement.41 The principle of the rule of law only requires access to justice and the right to a judicial decision, the plaintiff is not, however, entitled to a finding that the lawsuit is admissible.42 Consequently, the Higher Labour Court stated that Section 18 German Courts Constitution Act also does not violate the principle of the rule of law, referred to in Article 20 (3) German Basic Law.43

1. The Commercial Activity Exception The case and the holding of the Higher Labour Court reflect the still unsolved conflict between diplomatic immunity and domestic workers’ attempts to remedy violations of their rights. Recent academic proposals to solve the conflict include interpreting the ‘commercial activity exception’ in the VCDR in a different way.44 The commercial activity exception of Article 31 (1)(c) VCDR states that a diplomatic agent does not enjoy immunity in case of “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.” Although one could assume that hiring domestic workers could fall within the meaning of ‘commercial activity,’ the employment of domestic workers has been ruled as not belonging to the professional or commercial activity of a diplomat.45 A commercial activity is characterised as a continuous act, but there is no clear definition to be found.46 The commercial activity exception concerns trade or busi41

Higher Labour Court Berlin-Brandenburg (note 9), para. 24.

42

Ibid., para. 26.

43

Ibid., para. 25.

44

Nina Maja Bergmar, Demanding Accountability Where Accountability Is Due: A Functional Necessity Approach to Diplomatic Immunity Under the Vienna Convention, Vanderbilt Journal of International Law 47 (2014), 501, 520. 45

Amy Tai, Unlocking the Doors to Justice: Protecting the Rights and Remedies of Domestic Workers in the Face of Diplomatic Immunity, Journal of Gender, Social Policy & the Law 16 (2007), 175, 186, with reference to United States Court of Appeals for the Fourth Circuit, Tabion v. Mufti, 17 January 1996, 73 F.3d 535, 538–539; OSCE (note 4), 26. 46 International Law Commission, Diplomatic Intercourse and Immunities: Summary of observations received from Governments and conclusions of the Special Rapporteur, 2 May 1958, UN Doc. A/ CN4/116 (1958), 56.

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ness activities for profit that are not related to the diplomatic work. So far, the exception rule has been interpreted in a very narrow manner. Therefore, it does not include contractual relations for goods and services that are necessary for the daily life of the diplomat.47 Thus, a contract between a domestic worker and a diplomat is not within the scope of the commercial activity exception. A possible solution could be a different interpretation of the exception clause in case of an apparent abuse of diplomatic privileges under the existing framework of international law. The problem, however, is the explicit wording of Article 31 (1)(c) VCDR, which leaves no room for a new interpretation of the narrow exceptions.48

2. Forfeiture of Diplomatic Immunity in Cases of Severe Human Rights Violations? Furthermore, the plaintiff maintained that diplomatic immunity must be seen as secondary only in cases of severe human rights violations. In essence, the Saudi Arabian diplomat forfeited his right to immunity because of his behaviour towards the plaintiff.49 This could be a possible approach to the problem and one which causes controversy in the literature.50 The problem of the legal institution of forfeiture is, however, that it would be difficult for national courts to draw a line to determine as to when diplomatic immunity is forfeited. The holding of the Federal Labour Court in this context is that the defendant did not forfeit his diplomatic immunity.51 The Court reasoned that the legal relationship between the plaintiff and the defendant was not defined by international law but through national private law. The plaintiff based her claims on German national law and not on international law. Therefore, the question whether human rights were violated or not was not relevant for the plaintiff’s

47

See Denza (note 32), 305.

48

See Bergmar (note 44), 523.

49

See Higher Labour Court (note 9), para. 7.

50

Peter Mankowski, Gerichtsbarkeit und internationale Zuständigkeit deutscher Zivilgerichte bei Menschenrechtsverletzungen, in: Bernd von Hoffmann (ed.), Universalität der Menschenrechte: Kulturelle Pluralität (2008), 139, 152, with further references. 51

See German Federal Labour Court (note 34), para. 17.

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legal claims.52 An additional point to note is that the Court referred to an earlier decision where it points out that no such exception to diplomatic immunity in cases of severe human rights violations exists.53 Consequently, the Court stated that any eventual severe human rights violation had ceased to exist since the plaintiff was not working as a servant for the defendant anymore.54 To sum up, the defendant did not forfeit his diplomatic immunity because of possible severe human rights violations.

3. Violation of Article 6 ECHR? In this context, the question has been raised whether the granting of immunity to diplomats for all acts in their private sphere conflicts with the right to have any claim relating to civil rights and obligations brought before a court, as guaranteed by Article 6 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).55 There is an established jurisprudence of the European Court of Human Rights (ECtHR) in cases where access to justice against acts of diplomatic missions and diplomats had been denied because of State immunity.56 Whereas these cases did not concern a complaint against an individual diplomat but against the respective State of the diplomatic mission, the general argumentation of the ECtHR in relation to Article 6 ECHR may be applicable to the former constellation as well: The right of access to court is not absolute but may be subject to limitations. States enjoy a margin of appreciation in this regard, but limitations to Article 6 ECHR must pursue a legitimate aim and there has to be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.57 The ECtHR also takes into account the relevant rules of international law. For the cited cases this implicated that where immunity had been granted in national courts for acts of diplo52

Ibid., para. 18.

53

Federal Constitutional Court, BVerfGE 96, 68.

54

See Higher Labour Court (note 9), para. 20.

55

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 005, UNTS 213, 222 (ECHR). For Germany: BGBl. 2002 II, 1054, entry into force 3 September 1953. See European Court of Human Rights (ECtHR), Cudak v. Lithuania, Judgment of 23 March 2010, RJD 2010-III, 153, para. 54. 56

ECtHR, Fogarty v. The United Kingdom, Judgment of 21 November 2001, RJD 2001-XI, 157; id., Siliadin v. France, Judgment of 26 July 2005, RJD 2005-VII, 333; id., Cudak v. Lithuania (note 55). 57

Id., Cudak v. Lithuania (note 55), para. 55.

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mats without international (customary) law requiring this immunity – namely for a State’s employment contracts with staff of its diplomatic missions abroad – there had been a breach of Article 6 ECHR.58 The German Federal Constitutional Court and other courts in Germany deliver their decisions in congruency with the underlying distinction of acta iure imperii and acta iure gestionis.59 Reiterating that the ECtHR stressed the overall legitimate aim of granting immunity,60 it seems clear that where the VCDR and the VCCR grant immunity to diplomats – for official and private acts – this might well be in line with Article 6 ECHR.61

E. Conclusion to Part II

The Ratnasari case thus revealed the difficulties of a domestic worker in a diplomat’s household to take a case to court in Germany. It is therefore essential to raise awareness of other means for redress. These can be formalised procedures of immigration and employment, monitoring, out-of-court mediation, and the usage of diplomatic measures as set out in the VCDR.62 These practices have recently been revised by the Federal Foreign Office in Germany and shall therefore be analysed in the following part.

III. German Administrative Practice in Relation to the Employment of Domestic Workers The employment of domestic workers in diplomats’ households is currently regulated through a circular note of the Federal Foreign Office dated 1 December

58

Ibid., paras. 65–75.

59

Wilfried Bolewski, Diplomatische Vertretungen und Arbeitsrecht, Archiv des Völkerrechts (AVR) 43 (2005), 345, 351, citing the German Federal Constitutional Court, BVerfGE 46, 342, 364. 60

ECtHR, Cudak v. Lithuania (note 55), para. 60.

61

This conclusion is also supported through ECtHR, Jones and Others v. The United Kingdom, Judgment of 14 January 2014, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i= 001-140005 (accessed on 2 April 2015); Matthias Kloth, Die zivilrechtliche Immunität von Staatsbediensteten beiVerstößen gegen das Folterverbot, AVR 52 (2014), 256, 273, 274. 62

See OSCE (note 4), 27, 45.

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2011.63 This is a modified version of previous circular notes,64 which aims at improving the situation for domestic workers in Germany through stricter regulation in some aspects. The circular permits heads of diplomatic missions up to three, heads of consular missions up to two, and all other delegation members one domestic worker in their private households.

A. Procedure of Immigration and Employment

The procedure of immigration and employment starts with the notification of the intention to employ a domestic worker to the Federal Foreign Office in a verbal note, accompanied by a declaration of commitment. The respective embassy of the employer has to assert that the employer complies with the German minimum standards of labour and social law. This includes a written labour contract, a minimum wage of € 840 net and at the minimum € 5.03 net per working hour for simple tasks following individual instructions, and a minimum wage of € 1,030 net and at the minimum € 6.17 net per working hour for independent tasks, working overtime to be reimbursed at the normal rate.65 Regular working hours are 38.5 hours per week. Minimum paid leave is four weeks per year. The wage is to be paid into the worker’s bank account at the end of each month. The worker gets their own room in the private household of the diplomat, retains their passport and protocol ID, and receives at least three meals per day. The employer must take out health insurance for the employee and must pay for the travel costs of the worker to Germany and back home. The worker must apply personally for a one month entry-visa in a German embassy or consulate and has to submit a verbal note as referred to above, an own declaration confirming the reception of all important information about their rights, and a declaration of commitment of the employer, stating that the essential conditions of the employment and the stay in Germany are agreed upon and understood. During this first audition, the German diplomatic mission gives advice, informs the worker

63 Federal Foreign Office (Auswärtiges Amt), Circular note (Verbalnote) 34/2011, 703–701 AM Allg., 1 December 2011, reprinted in: Ban Ying (note 30), 10. 64

Namely Federal Foreign Office, Circular note (Verbalnote) 7/2003, 703–701 AM 22 Allg., 3 April 2003, cited in: Bolewski (note 59), 346. 65

Federal Foreign Office (note 63), 10.

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about their rights, and hands out a leaflet66 from the German non-governmental organisation (NGO) Ban Ying including all relevant information in several languages.67 Whereas the worker is not obliged to pick up the protocol ID personally for the first time, the new circular note foresees the obligation to personally collect the renewed ID annually from the second year on.68 This is intended to enable the worker to inform the Federal Foreign Office about any irregularities and to provide the officers with an opportunity to examine whether all the conditions are still fulfilled. Domestic workers have to leave Germany upon termination of the official activity of the employer or after five years of work at the latest.69 To continue to work as a domestic worker in a diplomat’s household, they must take one year of rest. It is not permitted to change the employer during the stay in Germany. Workers are neither permitted to live in another place than the employer’s, nor are they allowed to work together with relatives in one household, to bring in relatives, or to work for an employer who is a relative or family member.

B. Measures in Reaction to Irregularities

The German Federal Foreign Office has established a graduated approach to react to irregularities with regard to the employment of domestic workers. As a first step after noticing a possible irregularity, the Office contacts the head of the diplomatic mission and asks for clarification of the issue. In a statement to the German parliament, the federal government noted that this approach leads in most cases to the fulfilment of all obligations of diplomatic employers toward their domestic workers.70 Reported cases of irregularities between 2008 and 2011 include no payment of appropriate wages (sixteen cases), suffering of physical violence from the employer (four cases), and no health insurance (one case).71

66

Ban Ying (note 30).

67

German Parliament (note 1), 2.

68

Ibid.

69

Federal Foreign Office (note 63), para. I. 2.

70

German Parliament (note 1), 3.

71

Ibid., 2.

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As a further reaction, the Office can deny a request for permission to hire domestic workers to be employed in a private household of a diplomat.72 This was undertaken in five cases between 2008 and 2012.73 Through direct communication between the Federal Foreign Office and diplomatic missions or host States, several diplomatic employers have been withdrawn by their sending States.74 Finally, the Office is willing to impose diplomatic measures as laid out in the VCDR and VCCR – namely the declaration of a diplomat as persona non grata (Article 9 (1) VCDR) – even though this has not been done so far.75

C. Assessment

The approach of the federal government has been criticised for several reasons both on the legislative and on the administrative level.

1. Improvement of the Lex Lata? It has been asked whether the government deems it appropriate to initiate or enter into negotiations for amending the VCDR in a way that would abolish immunity of diplomats for acts in their private sphere.76 This proposal originated from a debate held in the Council of Europe about domestic slavery in light of the ECHR, especially the right to a fair trial (Article 6 ECHR), which resulted in recommendations of the Parliamentary Assembly in 2001, including to “amend the Vienna Convention in order to waive diplomatic immunity for all offences committed in private life.”77 The German federal government rejected this proposal.78 This is in line with the argumen72

Federal Foreign Office (note 63), para. IV.

73

German Parliament (note 1), 5.

74

Ibid.

75

Ibid., 5, 6.

76

German Parliament, Answers of the Federal Government to Questions of Parliamentarians: Schutz des Personals in Diplomatenhaushalten, BT-Drs. 16/8594, 14 March 2008, 6, 7. 77

Council of Europe Parliamentary Assembly, Recommendation 1523 (2001), Domestic Slavery, 26 June 2001, para. 10.iv, available at: http://assembly.coe.int/Main.asp?link=/Documents/Adopted Text/ta01/EREC1523.htm (accessed on 2 April 2015). 78

German Parliament (note 76), 7.

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tation of the Committee of Legal Advisers on Public International Law (CAHDI) of the Council of Europe that stressed, inter alia, the importance of the VCDR as a “key element for the stability of diplomatic relations.”79 Any question of amendment would therefore be a sensitive matter and should be considered carefully. Excluding immunity for all offences in diplomats’ private lives would mean reducing the immunity granted to diplomats to a functional one, which would be a significant reduction. The CAHDI also pointed out different ways in which domestic worker abuse could be confronted using the existing legal framework laid out by the VCDR and concluded that amending the VCDR would neither be a realistic solution nor would it be advisable on policy grounds.

2. Furthering Administrative Practice and Search for International Cooperation An overall assessment of the measures taken by the German government in relation to the employment of domestic workers in diplomatic households turns out to be ambivalent. As a comparison with the practice of other European countries and the United States shows, Germany has implemented a wide range of measures aiming at the protection of domestic workers’ rights.80 Germany fulfils nearly all of the recommendations prepared by the OSCE.81 Unfortunately, this does not necessarily mean that rights violations do not occur anymore or that successful complaint procedures are taking place more often or on a more structured and foreseeable basis. On the contrary, as the German Institute for Human Rights points out, successful complaints rely rather on a case-by-case basis or informal approaches “than on a systematic approach or even legal certainty.”82 Regarding case numbers of domestic worker abuse, it has to be assumed that these numbers are not precise and comparable, because only those cases are counted that came to the knowledge of an NGO or the 79 Council of Europe Committee of Ministers, Domestic Slavery: Parliamentary Assembly Recommendation 1523 (2001) (Reply adopted by the Committee of Ministers on 27 February 2003 at the 829th meeting of the Ministers’ Deputies), 28 February 2003, CM/AS(2003)Rec1523 final, Appendix 1: Opinion of the CAHDI on Parliamentary Assembly Recommendation 1523 (2001) on domestic slavery, available at: https://wcd.coe.int/ViewDoc.jsp?id=36221&Site=COE (accessed on 2 April 2015). 80

See the comparison in OSCE (note 4), 62–71.

81

Ibid., 46–51.

82

Kartusch (note 2), 47.

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Federal Foreign Office. There might very likely be a significant dark figure, where domestic workers do not seek redress because of general fear or even because of the fact that they are locked up and not registered as domestic workers. This might occur, for example, when diplomats arrange to apply for a visa for a domestic worker under the guise of a visiting family member.83 It must be examined which other measures could improve the situation. There has been a call to allow domestic workers to change their employer in the case of an abuse, as Belgium, the Netherlands, and Switzerland do, or to install an independent claims mechanism, but the German government rejected this.84 In the end, a binding international instrument like the ILO Convention could be advantageous. But as could be observed, States were very reluctant during the negotiating process of the ILO Convention to implement any binding rules in regard to special types of domestic workers, among others those in diplomatic households.85 Nevertheless, the ILO Convention can contribute to the situation of domestic workers through the establishment of minimum standards like minimum wage, written working contracts, decent working and living conditions, respect of privacy, and protection against abuse. However, it has been criticised that the ILO Convention through its overly flexible outline and its possibility of opting out and excluding certain categories of domestic workers (Article 2 ILO Convention) is not establishing a strict standard. Finally, despite being connected to the especially vulnerable group of domestic workers in diplomatic households,86 the Convention does not address specifically the situation of domestic workers in diplomatic households. At least the recommendations adjoined to the Convention pay attention to this matter, but remain – not binding in any case – to a large extent well-intentioned proposals.87 83

See Julia Herrnböck/Julia Raabe, Sklaverei hinter Botschaftsmauern, Der Standard, 12 April 2013, available at: http://derstandard.at/1363707819201/Sklaverei-hinter-Botschaftsmauern (accessed on 18 February 2015). 84

German Parliament (note 1), 4; OSCE (note 4), 36, 37.

85

Siobhán Mullally/Clíodhna Murphy, Migrant Domestic Workers in the UK: Enacting Exclusions, Exemptions, and Rights, Human Rights Quarterly 36 (2014), 397, 403. 86 87

Scheiwe (note 40).

See ILO (note 12). The recommendations in para. 26 (4) read as follows: “In the context of diplomatic immunity, Members should consider: (a) adopting policies and codes of conduct for diplomatic personnel aimed at preventing violations of domestic workers’ rights; and (b) cooperating with each other at bilateral, regional and multilateral levels to address and prevent abusive practices towards domestic workers”.

The Right to Privacy in the Digital Age: The Commitment to Human Rights Online MARTIN WEILER(

On 18 December 2013, the General Assembly of the United Nations (UNGA) adopted Resolution 68/167 entitled “The right to privacy in the digital age.”1 It establishes for the first time, in a United Nations context, that the protection offered by human rights treaties is also applicable in the digital sphere.2 The Resolution, inspired in particular by worldwide opposition to on-going National Security Agency (NSA) operations around the world, recalls that international human rights law provides the universally applicable legal framework against which any intrusion by States into the right to privacy must be assessed.

I. The Backdrop to the Resolution Modern communications technologies open up new ways of participation across the globe. Through their interconnectivity, however, communication methods such as the internet are also vulnerable to electronic surveillance and interception.3 The sheer extent of the worldwide covert surveillance systems developed by the NSA (

Doctoral Candidate and Research Associate at the University of Trier.

1

GA Res. 68/167 of 18 December 2013.

2

For the lack of previous debate on the right to privacy, see Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, 17 April 2013, UN Doc. A/HRC/23/40 (2013), para. 18: “Human rights mechanisms have been equally slow to assess the human rights implications of the Internet and new technologies on communications surveillance,” American Civil Liberties Union, Privacy Rights in the Digital Age, 5 March 2014, available at: https://www.aclu.org/sites/default/files/assets/jus14-report-iccpr-web-rel1.pdf (accessed on 27 March 2015). 3

Report of Rapporteur Frank La Rue (note 2), para. 11.

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demonstrates the need for an international response. Seen against this background, it may not come as a surprise that it was Germany and Brazil who drafted a resolution dealing with the right to privacy in the digital age. According to reports, both their political leaders, Chancellor Angela Merkel and President Dilma Rousseff, fell victim to espionage by the NSA.4 And more coincidentally, perhaps, Germany and Brazil are also home of Laura Poitras and Glenn Greenwald, who worked closely together with Edward Snowden in revealing the mass surveillance techniques of the NSA, which form the factual backdrop of Resolution 68/167.

II. The Digital Age The world has grown dependent on modern technology, both in our private and professional lives. Online activities are no longer a separate domain of existence, but the centre of our human interactions.5 In the realm of such communication technology, territorial boundaries are entirely irrelevant. In fact, the appeal of the internet lies precisely in this accessibility and the ability to share information irrespective of where one is located. But in such a connected world, it is easier than ever to surveil the flow of electronic data resulting from our daily online interactions. For that reason, the Resolution turns to the international framework of human rights, in particular the International Covenant on Civil and Political Rights (ICCPR),6 in order to tackle mass surveillance programs.7 By emphasising the role of human rights, the Resolution ensures that questions of mass surveillance are debated on an individual level, focusing on the individual’s right to privacy as enshrined in Article 17 ICCPR. The question of whether espionage vis-à-vis another State is acceptable in international law is not dealt with.

4

Sebastian Fischer, Merkel’s Phone: Spying Suspicions Put Obama in a Tight Spot, Spiegel Online, 24 October 2013, available at: http://www.spiegel.de/international/world/suspicions-of-us-spying-onmerkel-phone-awkward-for-obama-a-929692.html (accessed on 4 November 2014). 5

Glenn Greenwald, No Place to Hide (2014), 6.

6

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171 (ICCPR). 7

GA Res. 68/167 (note 1), operative para. 1.

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III. Germany’s Motives in Protecting Human Rights Online The Resolution itself is of a non-binding character. It does not purport to change or restrict the legality of mass surveillance systems. Its focus is the facilitation of the debate about how best to protect the right to privacy in a globalised world.8 Germany’s motives in the drafting process were two-fold. First, the German Ambassador to the UN, Peter Wittig, introduced the Resolution by highlighting that privacy laws had not kept pace with recent technological developments.9 Questions relating to the effective protection of the right to privacy had to be reconsidered in today’s digital world in which there seemed to be “hardly any technical limitations” for storing personal data.10 The co-sponsored Resolution should therefore be seen as a basis for an on-going discussion regarding the effective protection of online rights. Germany’s reasoning for engaging in a data protection debate on the UN level centred on the fact that domestic laws are no longer sufficient to protect the private data of (German) nationals in an interconnected environment. In an age of digital communication, most electronic data is routed through the fastest channels and not those that are necessarily the most geographically direct.11 Emails may travel through various States, even though sender and recipient are located within the same State. Similarly, an internet user is unlikely to know where his online data is being stored, as internet providers may save their content on servers located outside a State’s jurisdiction. Thus, only a global approach can serve as an answer to the growing global data protection problems. The Resolution is but one of many German efforts to set up a similarly strict international data security framework as already established domestically by national privacy regulations. Such efforts included the possibility of creating a new protocol to the ICCPR specifically dealing with the global effects of surveillance.12 8

Ibid., operative para. 5.

9

Permanent Mission of Germany to the United Nations – New York, Statement by Ambassador Wittig at the presentation of the draft resolution on “The Right to Privacy in the Digital Age,” available at: http://www.new-york-un.diplo.de/Vertretung/newyorkvn/en/__pr/speeches-statements/ 2013/20131107-wittig-on-right-to-privacy.html?archive=3759636 (accessed on 18 December 2014). 10

Ibid.

11

Christopher Kuner, Regulation of Transborder Data Flows under Data Protection and Privacy Law (2013), 3. 12

Markus Kotzur, Datenschutz als Menschenrecht, Zeitschrift für Rechtspolitik (2013), 216.

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Besides these more long-standing concerns, the second cause for Germany’s prominent role in drafting the Resolution is to be seen in the alleged hacking of Angela Merkel’s mobile phone by the NSA. Revelations by Edward Snowden in October 2013 that the Chancellor’s phone may have been monitored led to personal tensions between Germany and the United States(US).13 The direct involvement in NSA spying operations together with Germany’s specific interest in data protection formed the background for co-sponsoring the draft proposal in November 2013. This article attempts to elaborate further as to whether the approach taken by the Resolution is a suitable answer to on-going mass surveillance. Is it possible to protect the right to privacy by the proposed human rights framework and does it answer Germany’s concerns regarding data protection?

IV. Surveillance Operations Abroad: Who is Entitled to Protection? The German co-sponsored Resolution emphasises that the ICCPR is the internationally applicable framework which governs the power of States to interfere with an individual’s right to privacy. Article 17 (1) ICCPR, dealing with the right to privacy, reads in its relevant part “no one shall be subjected to arbitrary or unlawful interference with his privacy […].” The essential question regarding the merits is thus under which circumstances mass surveillance can be considered to be ‘arbitrary’ in the sense of Article 17 ICCPR. However, pursuant to Article 2 (1) ICCPR, States Parties are only obliged to ensure the effective enjoyment of the right to privacy towards those individuals who are “within the territory” and “within the jurisdiction” of the interfering State. In most situations, the affected individual is located within the territory of the State which has violated his rights. Jurisdiction, which is primarily territorial, can thus be assumed. Mass surveillance programs collecting online data, however, have a rather more universal outlook. The spying State does not simply surveil within its borders, but applies its spying capabilities worldwide. In circumstances of interfering with the right to privacy abroad, one has to first determine whether the ICCPR is applicable before assessing the legality of a State’s conduct under Article 17 (1) ICCPR.

13

Fischer (note 4).

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In that respect, the Resolution is particularly concerned with the negative impact of extraterritorial surveillance carried out on a mass scale.14 This topic, being one of the key aspects in the drafting process of the Resolution, was contested.15 The original draft written by Germany and Brazil had assumed the extraterritorial application of the ICCPR to online surveillance and thus considered foreign surveillance operations as a violation of Article 17 ICCPR.16 After resistance from the ‘Five Eyes-States,’17 who contended that the Covenant does not apply extraterritorially and thus cannot prohibit foreign surveillance, the final version of the document was redrafted. The wording no longer includes any references to extraterritorial violations of the right to privacy, but focuses instead on the “detrimental impacts” that extraterritorial surveillance may have upon the exercise of human rights.18 The following scenario of the eavesdropping on Angela Merkel’s phone is used as an example to showcase the difficulties a human rights framework, as proposed by the Resolution, might encounter in protecting the right to privacy in a digital world. The scenario consists of a NSA agent hacking into Angela Merkel’s phone, allowing him to listen to her phone calls remotely from NSA headquarters in Maryland. This particular scenario has been selected as an illustrative example that may also have the benefit of being true.19 As a matter of fact, however, it should be mentioned that the revelations surrounding the secret spying on individuals are by no means less significant than the spying upon heads of States. On the contrary, as a matter of

14

GA Res. 68/167 (note 1), para. 10 of the preamble.

15

Colum Lynch, Inside America’s Plan to Kill Online Privacy Rights Everywhere, Foreign Policy, 20 November 2013, available via: http://foreignpolicy.com/2013/11/20/exclusive-inside-americasplan-to-kill-online-privacy-rights-everywhere/ (accessed on 17 March 2015, access requires registration). 16

Brazil and Germany: Draft Resolution, 1 November 2013, UN Doc. A/C.3/68/L.45 (2013).

17

The term ‘Five Eyes-States’ refers to a data gathering network comprised of the United States(US), the United Kingdom (UK), Canada, and New Zealand. 18 19

GA Res. 68/167 (note 1), para. 10 of the preamble.

Fischer (note 4). German Federal Prosecutor Harald Range has not found any evidence as of 18 December 2014 but is still investigating the phone-tapping. See Frankfurter Allgemeine Zeitung (FAZ), 11 December 2014, Range: Kein Beweis für Ausspähung von Merkels Handy, available at: http://www.faz.net/aktuell/politik/inland/nsa-affaere-kein-beweis-fuer-ausspaehung-von-angelamerkels-handy-13315918.html (accessed on 18 December 2014).

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international law, espionage in relation to foreign political leaders might even be easier to justify than the current surveillance of ordinary citizens around the globe.20

A. The Extraterritorial Application of the ICCPR

The extraterritorial application of human rights treaties such as the ICCPR comes into play when a State interferes with an individual’s human rights while the individual is not situated in the territory of that State.21 Such a scenario represents the norm when it comes to surveillance. The NSA spying scandal revealed that States do not restrict their spying activities to their territory but also conduct spying operations on foreign soil. In light of this, the preamble of the German co-sponsored Resolution focuses on the effects of extraterritorial surveillance on the enjoyment of human rights.22

B. Is the ICCPR Applicable to Foreign Surveillance Operations?

The extraterritorial reach of the Covenant is dealt with in Article 2 (1) ICCPR, which determines that an individual has rights under the Treaty when he is “within the territory and subject to the jurisdiction” of a State. Jurisdiction clauses establish a threshold that must be crossed before a State is bound to comply with human rights obligations.23 The question to be answered by Article 2 (1) ICCPR is thus not whether a surveillance operation is lawful, but whether a method of surveillance that violates human rights if conducted on home soil would also be an interference with the right to privacy under Article 17 ICCPR if conducted by the same State in the same manner outside its territory.24 20

Marko Milanovic, Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, Harvard International Law Journal, Forthcoming, Draft, 73, available at: http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2418485 (accessed on 27 March 2015). 21 22

Id., Extraterritorial Application of Human Rights Treaties (2011), 8. A Res. 68/167 (note 1), para. 10 of the preamble.

23

European Court of Human Rights (ECtHR), Al-Skeini and Others v. The United Kingdom, Judgment of 7 July 2011, RJD 2011-IV, 99, para. 130. 24 Martin Scheinin, Letter to the Editor from Former Member of the Human Rights Committee, Just Security, 10 March 2014, available at: http://justsecurity.org/8049/letter-editor-martin-scheinin/ (accessed on 27 March 2013).

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In current case law, there is not a single incident in which the question of the extraterritorial application of the ICCPR or the European Convention on Human Rights25 to online mass surveillance programmes has been dealt with explicitly.26 Hence, in order to decide whether the Covenant applies, one must turn to the general approach taken in cases of extraterritorial application. As a starting point, the Human Rights Committee (HRC),27 the International Court of Justice ( ICJ),28 and most States29 have agreed that the wording of “within the territory and subject to its jurisdiction” of Article 2 (1) ICCPR must be read disjunctively. It is sufficient that the person is within the territory or the jurisdiction of a State for the ICCPR to apply. Their reasoning is based on the object and purpose of the Treaty, which lies in the universality of human rights.30 An individual is entitled to protection simply because he is human, irrespective of where he is located.31 The place of the violation is of no relevance; rather the relationship between the individual and the violating State is decisive for the applicability of the Covenant.32 This line of interpretation was brought to its logical conclusion in the Lopez Burgos case, where it was held that it would be unconscionable “to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”33 Since then the disjunctive reading of Article 2 (1) ICCPR has 25 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, UNTS 213, 222. 26

Milanovic, (note 20), 38.

27

Human Rights Committee (HRC), General Comment No. 31: The 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), para. 10. 28 International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, paras. 108–111. 29 In that regard, see the statements of various States on the Concluding Observations of the HRC: Germany, 11 April 2005, UN Doc. CCPR/CO/80/DEU/Add.1 (2005); UK and Northern Ireland, 3 November 2009, UN Doc. CCPR/C/GBR/CO/6/Add.1 (2009); Belgium, 17 July 2009, UN Doc. CCPR/C/BEL/5 (2009). 30

ICJ, Construction of a Wall (note 28), para. 109.

31

Rick Lawson, Life After Bankovic: On the Extraterritorial Application of the ECHR, in: Foons Coomans/Menno Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (2004), 83, 86. 32 Sarah Joseph/Adam Fletcher, Scope of Application, in: Daniel Moeckli/Sangeeta Shah/Sandesh Sivakumaran (eds.), International Human Rights (2013), 133. 33

HRC, Delia Saldias de Lopez v. Uruguay, Decision of 29 July 1981, UN Doc. Supp. No. 40 (A/36/40), para. 12. 3.

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been generally agreed upon by most States parties. The noteworthy exception being the US, who favours a literal approach to Article 2 (1) ICCPR.34 Such a literal interpretation emphasises that the wording of Article 2 (1) ICCPR entails two requirements. In order for the ICCPR to be applicable, the person must be “within the territory” of the acting State and “within its jurisdiction.” The US position therefore denies the extraterritorial application of the ICCPR as such.35 Although the US interpretation of Article 2 (1) ICCPR is textually sound, it has been rejected by the ICJ and the HRC several times.36 The Treaty never intended to grant States unchecked authority to do as they pleased with individuals living outside of the country.37 Jurisdiction clauses were meant to prevent the responsibility of States when they were unable to uphold rights abroad.38 However, when they are in the factual position to ensure the enjoyment of rights on foreign soil, Article 2 (1) ICCPR was not drafted to allow States to escape from their responsibilities simply on the basis of the geographical location of the affected individual.39 Therefore, Article 2 (1) ICCPR does not exclude the extraterritorial application of the Covenant if the individual is within the jurisdiction of the acting State.

C. Jurisdiction and the Right to Privacy Online

The concept of jurisdiction can be described as the necessary link between the victim and the acting State.40 Such a link exists when the State is in the factual position to encroach upon an individual’s human rights. Jurisdiction is thus a question of 34 Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Third periodic reports of States parties due in 2003: United States of America, 28 November 2005, UN Doc. CCPR/C/USA/3 (2005), Annex I, 109. The US position was expressly reiterated with regard to the right to privacy in the digital age, see Response of the US to the Questionnaire of the Office of the High Commissioner for Human Rights on the Right to Privacy in the Digital Age, 1–2, available at: http://www.ohchr.org/Documents/Issues/Privacy/United%20States.pdf. 35

Michael Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, American Journal of International Law 99 (2005), 119, 123–124. 36

See supra (notes 27–29).

37

HRC, Lopez v. Uruguay (note 33), Individual Opinion of Christian Tomuschat.

38

Milanovic, (note 21), 177.

39

Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (2010), 205.

40

Al-Skeini v. Secretary of State for Defence [2007] UKHL 26, para. 64 (Lord Rodger).

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actual control, irrespective of whether such control is exercised lawfully.41 The jurisprudence of human rights bodies has developed two approaches as to when such control exists: a spatial and a personal approach.42 Under the spatial model, a State has jurisdiction when he controls the territory in which the individual is located.43 Just as a State is required to uphold human rights on home soil, so is he obliged to do so abroad when he has a similar factual power over foreign territory. Under the personal approach, a State has jurisdiction whenever it is in physical control of the individual.44 The prime example of such control consists of the taking of an individual into physical custody.45 In some cases, courts have broadened the personal approach so as to include the killing of individuals outside the context of physical detention.46 An expansive cause-and-effect notion of the personal model has, however, been rejected.47 In the context of interference into the right to privacy via surveillance programmes, the question of control over territory or the person itself is of no significance. The appeal of technology lies in the very fact that it does not need access to individuals in order to violate their rights.48 The place in which the interference with the right to privacy takes place is entirely independent of the current location of the person whose data is being interfered with. Thus, due to technical developments, the concept of physical control on which jurisdiction has been based is becoming outdated.This can be aptly demonstrated by the abovementioned scenario dealing with the hacking of Angela Merkel’s cell phone. While listening to her phone calls an NSA agent sitting in his office in Maryland does not control the German Chancellor physically nor does he 41

Ralph Wilde, Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties, Israel Law Review 40 (2007), 503, 513. 42

ECtHR, Hassan v. The United Kingdom, Judgment of 16 September 2014, para. 74, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-146501 (accessed on 4 November 2014); Lubell (note 39), 211. 43

ICJ, Construction of a Wall (note 28), para. 109.

44

HRC, General Comment No. 31 (note 27), para. 10.

45

Lubell (note 39), 216.

46

ECtHR, Issa and Others v. Turkey, Judgment of 16 November 2004, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-67460 (accessed on 4 November 2014); id., Pad and Others v. Turkey, Judgment of 28 June 2007, available at: http://hudoc.echr.coe.int/ sites/eng/pages/search.aspx?i=001-81672 (accessed on 4 November 2014). 47 48

Id., Medvedyev and Others v. France, Judgment of 29 March 2010, RJD 2010-III, 61, para. 64.

US Supreme Court, United States v. Jones, 132 S. Ct. 945, 565 (2012), Concurring Opinion of Judge Sotomayor.

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exercise control over German territory. Consequently, Angela Merkel should not have any rights vis-à-vis the US even if her phone was tapped by the NSA.49 To assume that the ICCPR does not apply extraterritorially to the remote surveillance of electronic data might nonetheless be premature. The question of extraterritorial application of treaties has been riddled with inconsistencies and has evolved on a case-by-case basis rather than following a principled approach.50 It has developed over time, dealing with each problem as and when it surfaced. The emerging focus on the notion of effective control as the decisive factor for accepting jurisdiction was based on the fact that it was reasonable to convict a State of a human rights violation extraterritorially when it was in its actual power to refrain from committing the violation.51 Formulated the other way round, the categories of control over territory and control over an individual made sense in an era where the State inevitably had to have power over one of these in order to violate rights. Not long ago, it was necessary to have physical access to a person in order to bug his phone. Due to technical developments tapping is nowadays also possible from abroad. It has been suggested that the Chancellor’s phone was directly tapped from US soil.52 If so, why should the method of eavesdropping be relevant as to whether Angela Merkel has human rights vis-à-vis the US? The choice of method be it physical or virtual, should not result in an advantage for the State conducting the mass surveillance regarding the applicability of human rights treaties.53 On the contrary, the focus should be on the effects of mass surveillance on the right to privacy. If virtual surveillance produces the exact same infringements that physical surveillance does, then both approaches should not be dealt with differently. If the basis of jurisdiction is power pure and simple then the models of jurisdiction should not stop at territorial or 49 Stefan Talmon, Tapping the German Chancellor’s Cell Phone, Bonn Research Papers on International Law No. 3A/2013, 1–2, available via: http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2352834 (accessed on 29 March 2015). 50

R. (Smith) v. Secretary of State for Defence [2010] UKSC 29, para. 60 (Lord Phillips); Milanovic, (note 21), 102. 51

Milanovic, Foreign Surveillance (note 20), 39.

52

Stefan Talmon, Abhören des Kanzler-Telefons völkerrechtlich nicht verboten, FAZ, 31 October 2013, available at: http://www.faz.net/aktuell/politik/staat-und-recht/nsa-affaere-abhoeren-deskanzler-telefons-voelkerrechtlich-nicht-verboten-12642973-p2.html (accessed on 4 November 2014). 53

Peter Margulies, The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism, Fordham Law Review 82 (2014), 2137, 2152.

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physical control over a person. Rather, the requisite control should hinge upon the factors that are essential to violate a particular right. It should be sufficient for a violation of a human right if the State controls factors that allow him to violate that particular right.54 However, such an approach to the question of jurisdiction has a potential draw back. It leads to the diminishing of the applicability threshold entailed in jurisdiction clauses.55 Arguing that a State is required to ensure human rights simply because it is in the position to uphold them expands the notion of jurisdiction to stretching point.56 Essentially, jurisdiction thresholds would become meaningless as a State would in all circumstances by required to adhere to the ICCPR. To avoid such a broad interpretation, the concept of jurisdiction should not be reduced to mere causation between the act of a State and the breach of the individual’s right.57 Being negatively affected by a State’s conduct is not enough to establish a jurisdictional link in the sense of Article 2 (1) ICCPR. If, however, the State is in control of whether to act in a manner which directly affects a human right negatively, then the decision to not refrain from said conduct should suffice to bring the individual “within the jurisdiction” of the acting State.58 In the context of extraterritorial surveillance and the right to privacy as discussed in the UNGA Resolution, an individual should therefore fall under a State’s jurisdiction if said surveillance consists of the exercise of control over the digital communication methods used by the individual. If the point of interference with the right to privacy is located within an area that is controlled by the State, as is the case when an email is intercepted by the State through whose territory the email is routed, or when a State taps communication cables as they run through its territory,59 then the individ54 Martin Scheinin, Extraterritorial Effect of the ICCPR, in: Coomans/Kamminga (eds.) (note 31), 73, 76; Beth van Schaack, The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change, International Law Studies 90 (2014), 49. 55

Milanovic, (note 20), 60.

56

House of Lords, Al-Skeini v. Secretary of State for Defence (note 40), para. 127 (Lord Brown).

57

Orna Ben-Naftali, Living in Denial: The Application of Human Rights in the Occupied Territories, Israel Law Review 37 (2003), 17, 64. 58 59

Lubell (note 39), 221.

Ewen MacAskill, GCHQ taps fibre-optic cables for secret access to world’s communications, The Guardian, 21 June 2013, available at: http://www.theguardian.com/uk/2013/jun/21/gchq-cablessecret-world-communications-nsa (accessed on 4 November 2014).

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ual should be within the jurisdiction of Article 2 (1) ICCPR, since the State controls the infrastructure upon which internet communications are built.60 If the State does not control the point of interference, jurisdiction should be inferred when the State is able to penetrate the communication network and thus controls the flow of data at some point in time. The determinative criteria of control in cases of mass surveillance might therefore be termed ‘virtual control.’61 By emphasising the virtual element, the term illustrates that in protecting the right to privacy in the digital world, the established criteria of control over territory or a person are no longer adequate in deciding whether a person is within the jurisdiction of a State. Since physical control is irrelevant to infringements upon the right to (digital) privacy,62 the relevant factor should be whether a State controls an individual’s communications channels. In the Angela Merkel phone-tapping scenario, such a ‘virtual control’ approach would lead to the jurisdiction of the US according to Article 2 (1) ICCPR. The NSA agent hacking into Angela Merkel’s phone is in control of the flow of data as he intercepts the data. If the point of interception is on US territory, as the data might be routed through a server on US soil, then the interference with Angela Merkel’s privacy rights takes place in an area under the control of the US. If the point of interception is outside of the US, then the agent controls the communications infrastructure necessary to interact in the digital world. In both cases, such control should suffice to bring the German Chancellor within the jurisdiction of the US.

60

Carly Nyst, Interference-Based Jurisdiction Over Violations of the Right to Privacy, EJIL: Talk!, 21 November 2013, available at: http://www.ejiltalk.org/interference-based-jurisdiction-overviolations-of-the-right-to-privacy/ (accessed on 4 November 2014). 61 Margulies (note 53), 2150; Report of the United Nations High Commissioner for Human Rights, The Right to Privacy in the Digital Age, 30 June 2014, UN Doc. A/HRC/27/37 (2014), para. 34; American Civil Liberties Union (note 2), 34; such a ‘virtual control’ approach is explicitly declined by Stefan Talmon, Sachverständigengutachten gemäß Beweisbeschluss SV-4 des 1. Untersuchungsausschusses des Deutschen Bundestages der 18. Wahlperiode, 9, available at: http://www.bundestag.de/ blob/282872/2b7b605da4c13cc2bc512c9c899953c1/mat_a_sv-4-2_talmon-pdf-data.pdf (accessed on 5 November 2014). 62

US Supreme Court, US v. Jones (note 48), Concurring Opinion of Judge Sotomayor: “Physical intrusion is now unnecessary to many forms of surveillance”.

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D. The Scope of the Right to Privacy in the Digital Age

The term privacy has evolved over time in human rights law to include the protection of any data relating to the private life.63 The term personal data encompasses every piece of information about a person while being online, for example used IPaddresses and the content of emails, or phone data such as the phone numbers of dialled and received calls.64 Of particular importance in relation to surveillance mechanism, any gathering of personal information on data banks constitutes an interference with the right to privacy.65 The interception of the content of communication via the internet as well as the interception of information generated while using communication technology (metadata) fall within the protection of Article 17 (1) ICCPR.66 Thus, the Resolution’s goal that peoples’ online rights be protected the same way as their offline rights67 has been implemented by courts through broadening the meaning of words such as ‘privacy,’ ‘home,’ and ‘correspondence’ all protected by Article 17 (1) ICCPR, to include their digital equivalents such as virtual online spaces, computer networks, and internet data.68 Yet, the Covenant is only prohibiting every interference with the right to privacy that can be described as ‘arbitrary or unlawful’ in the sense of Article 17 (1) ICCPR. The term ‘unlawful’ requires States to not interfere with the right to privacy except in cases provided for by national laws.69 These municipal laws must be sufficiently precise and detailed so as to allow the general public to foresee which kind of data is being interfered with and which public body is authorised to interfere.70

63 ECtHR, S. and Marper v. The United Kingdom, Judgment of 4 December 2008, RJD 2008-V, 167, paras. 66–67. 64

Id., Copland v. The United Kingdom, Judgment of 3 April 2007, RJD 2007-I, 353, para. 44.

65

Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd ed. 2005), Article 17, para. 48. 66

Right to Privacy in the Digital Age Report (note 61), para. 20.

67

GA Res. 68/167 (note 1), operative para. 3.

68

Nowak (note 65), Article 17, para. 48.

69

HRC, General Comment 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988, UN Doc.HRI/GEN/1/Rev.6 (1988), para. 3. 70

ECtHR, Weber and Saravia v. Germany, Judgment of 29 June 2006, RJD 2008-XI, 309, paras. 93–95.

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The term ‘arbitrary’ has been interpreted as including the principles of necessity and proportionality.71 Interference is therefore not considered ‘arbitrary’ if it follows a legitimate aim, is the least intrusive option, and is proportionate in relation to the burden it poses on the individual affected.72 The aim of combating crime and protecting the national security interests of a State are legitimate goals for conducting surveillance operations.73 The assessment of the proportionality of online surveillance operations depends on the circumstances of the individual case and cannot be answered generally. However, NSA’s mass collection and retention of virtual data on individuals without clear indications that they are involved in criminal activities appears disproportionate.74 In any event, by accepting the extraterritorial application of the right to privacy, States would be bound to justify their surveillance operations within a human rights framework as envisaged by Germany in drafting Resolution 68/167. In Angela Merkel’s case, the onus would be on the US to demonstrate that it was legitimate, necessary, and proportionate to tap her mobile phone.

V. The Impact of Resolution 68/167 In recalling the role of international human rights in the context of mass surveillance, the Resolution offers an applicable legal framework against which any inference by States in the right to privacy should be assessed. The applicability of the ICCPR to extraterritorial surveillance is, however, far from straight forward. The German cosponsored Resolution acknowledges the difficulties that such a human rights approach entails by requesting a reportof the UN High Commissioner for Human Rights on the right to privacy in the context of extraterritorial surveillance.75 The ensuing report of the UN High Commissioner argued strongly in favour of a wide 71

HRC, Toonen v. Australia, Decision of 31 March 1994, UN. Doc CCPR/C/50/D/488/1992 (1994), para. 8. 72

Report of Rapporteur Frank La Rue (note 2), para. 29.

73

ECtHR, Weber and Saravia (note 70), para. 104.

74

United States Court of Appeals for the District of Columbia Circuit, Larry Elliot Klayman et al. v. Obama et al., Decision of 16 December 2013, 13-cv-881, 64. 75

GA Res. 68/167 (note 1), operative para. 3.

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extraterritorial application of the right to privacy and will be submitted to the UNGA for further discussion.76 The issue of mass surveillance will further be elaborated upon in upcoming cases before national courts as well as the ECtHR.77 The protection of the right to privacy in the digital age will continue to be one of the most important human rights topics in the near future. The German co-sponsored Resolution 68/167 serves as a starting point for setting up a forum for discussing the right to privacy in surveillance operations. By following the proposed ‘virtual control’ approach, human rights law would adapt to the reality of modern technology and thereby ensure that peoples’ online rights are protected in the same way as their offline rights.

76 77

Right to Privacy in the Digital Age Report (note 61), para. 34.

ECtHR, Big Brother Watch and Others v. The United Kingdom, Appeal lodged on 4 September 2013, available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140713 (accessed on 29 March 2015).

The Convention for the Safeguarding of the Intangible Cultural Heritage and Its Relevance for Germany SINA HARTWIGSEN( AND JASMIN OSCHKINAT((

The Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH),1 was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2003 and entered into force on 20 April 2006 upon the ratification of 30 States in accordance with Article 34 CSICH. Germany ratified the Convention on 10 April 20132 and it entered into force on 10 July 2013 (Article 34 CSICH). The Convention complements the existing treaties on the protection of tangible heritage,3 such as the World Heritage Convention (WHC) of 1972,4 the Convention on the Protection of the Underwater Cultural Heritage of 2001,5 the European Convention on the Protection of the Archaeological Heritage of 1962,6 the

(

Rechtsreferendarin at the Higher Regional Court of Schleswig and Research Associate at the law firm LUTHER Rechtsanwaltsgesellschaft mbH. The view expressed herein are solely those of the authors and do not in any way reflect the view of LUTHER. (( Doctoral Candidate at the Walther Schücking Institute for International Law at the University of Kiel and Research Associate at the law firm Take Maracke und Partner. The view expressed herein are solely those of the authors and do not in any way reflect the view of the Take Maracke und Partner. 1

Convention for the Safeguarding of the Intangible Cultural Heritage, 17 December 2003, UNTS 2368, 38 (CSICH). 2

Bekanntmachung des Übereinkommens zur Erhaltung des immateriellen Kulturerbes, 7 June 2013, BGBl. II, 1009. 3 Janet Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Culture Heritage (2006), 5. 4 Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, UNTS 1037, 151 (WHC). 5 Convention on the Protection of the Underwater Cultural Heritage, 17 October 2003, UNTS 2368, 3. 6

European Convention on the Protection of the Archaeological Heritage, 6 May 1969, ETS No. 66.

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1992 revised version thereof,7 and the Convention for the Protection of the Architectural Heritage of Europe of 1985.8 Unlike these conventions, the CSICH emphasises the special character of ‘intangible’ heritage which, in contrast to ‘tangible’ heritage, is alive and much more dynamic as it is transmitted from generation to generation and is constantly recreated (Article 2 (1) CSICH).

I. The Convention The purpose of the Convention is to safeguard and ensure respect for the intangible cultural heritage, to raise awareness at local, national, and international levels, as well as to provide international cooperation and assistance (Article 1 CSICH). The Convention in Articles 11 to 15 CSICH distinguishes between ‘shall’ and ‘shall endeavour’ provisions. While the former are mandatory provisions (A. Obligations), the latter can be seen as recommendations for action (B. Programmatic aims).

A. Obligations

The State parties are obliged to take measures to safeguard the intangible cultural heritage (Article 11 CSICH) and ensure the viability of the intangible cultural heritage (Article 2 (3) CSICH). These duties are specified in the successive Articles: States shall draw up inventories of intangible cultural heritage (Article 12 (1) CSICH). Moreover, they are obliged to periodically submit a report of these inventories as well as a report on the legislative, regulatory, and other measures taken for the implementation of the Convention to the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage (the Committee) (Articles 12 (2), 5 CSICH).9

7

European Convention on the Protection of the Archaeological Heritage (Revised), 16 January 1992, ETS No. 143. 8 Convention for the Protection of the Architectural Heritage of Europe, 3 October 1985, ETS No. 121. 9

For an elaboration on the Committee see infra C.

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B. Programmatic Aims

The State parties should additionally establish documentation institutions (Article 13 (d)(iii) CSICH) as well as one or more competent bodies for the safeguarding of the intangible cultural heritage present in its territory (Article 13 (b) CSICH). Supplementary, educational, awareness-raising, and information programmes for young people, educational and training programmes within the communities, and capacity-building activities, especially in the field of management and scientific research, shall ensure the recognition, the respect, and the enhancement of the intangible cultural heritage (Article 14 (a) CSICH). During each state of implementation, State parties shall endeavour to ensure that communities, groups, and, where appropriate, individuals who create, maintain, and transmit such heritage are involved actively in the management (Article 15 CSICH).

C. The Committee and Its Tasks

Articles 4 to 7 CSICH establish the Committee, which is composed of representatives of 24 State parties which are elected by the State parties in the General Assembly (Article 4 CSICH). The members shall be elected in accordance with the principle of equitable geographical representation and rotation (Article 6 (1) CSICH) every four years (Article 6 (3) CSICH). Apart from the promotion of the objectives of the Convention, the Committee should prepare and submit proposals for measures to the General Assembly (Article 7 (e) CSICH), the Fund (Article 7 (c), 25 CSICH), and the reports by the State parties (Article 7 (f) CSICH). The Committee furthermore publishes a Representative List of Intangible Cultural Heritage of Humanity (Article 16 CSICH), a List of Intangible Cultural Heritage in Need of Urgent Safeguarding (Article 17 CSICH), and a List for Best Safeguarding Practices (Article 18 CSICH). Each State party can nominate cultural practices and expressions of intangible heritage which fulfil the criteria set down for the lists by the General Assembly of the States parties to the Convention (Articles 16 (2), 17 (2), 18 (1) CSICH).10 The System of estab-

10 Cf. United Nations Educational, Scientific and Cultural Organization (UNESCO), Criteria and Timetable of Instruction, available via: http://www.unesco.org (accessed on 6 February 2015).

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lishing special lists and a committee that shall establish and publish these lists can already be found in the World Heritage Convention from 1972 (Articles 8 to 14 WHC). In addition, the Committee grants international assistance for safeguarding intangible cultural heritage on State party request (Article 19–23 CSICH). International assistance means e.g. training of necessary staff (Article 21 (c) CSICH) or the supply of equipment and know-how (Article 21 (f) CSICH).

II. Relationship to Other International and Supranational Obligations on Cultural Issues The Convention is the first international treaty dealing with intangible heritage from a cultural point of view.11 However, there have been other international treaties which refer to intangible cultural heritage in an indirect way. The following section shall give a short overview of the relevant provisions. The first convention which comes to mind is the WHC. It includes in Article 1 places that can be ‘mixed’ sites which are of significance both for their natural appearance and for the customs or traditions linked to them.12 Thus, there is already a link to intangible culture heritage, but only if it is connected to a certain site. Hence, the protection of intangible heritage under the Convention for the Safeguarding of the Intangible Cultural Heritage goes far beyond the World Heritage Convention.13 Furthermore, the International Covenant on Economic, Social and Cultural Rights (ICESCR)14 stipulates the right to take part in cultural life (Article 15 (1)(a) ICESCR). As this wording is very loose, the Committee of the ICESCR draws upon other Conventions to interpret Article 15 (1)(a) ICESCR, thereby incorporating, inter alia, the standards of the Convention into the Covenant.15 Therefore, already being party to the Covenant, Germany would have acceded to the higher standard of 11

Blake (note 3), 22.

12

Ibid., 5.

13

Ibid.

14

International Covenant on Economic, Social and Cultural Rights, 3 January 1976, UNTS 993, 3.

15

Ben Saul/David Kinley/Jaqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights (2014), 7.

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protection even if it hadn’t signed the Convention, even though by acceding to the Convention it takes part in a system more institutionalised than under the Covenant. Adhering to the system of the Convention can nevertheless have benefits on a factual level, given that Germany now not only bears its obligations but can also nominate intangible heritage to the Representative List, which raises public awareness, or participate in the programmes provided by the Convention. As member of the European Union, Germany also participates in the programme of the ‘European Heritage Label’16 established in 2011, which is awarded by a European panel to mark cultural sites of European significance. Although the European Heritage Label can be granted due to intangible cultural heritage aspects, it is still restricted to the tangible site in which the intangible heritage form is practised,17 thus focusing on the object rather than on the conduct of the intangible heritage. Moreover, the European Heritage Label is aimed at intercultural exchange and the development of a European consciousness,18 whereas the Convention is aimed at preserving traditions for the sake of their existence and to sustain diversity. Therefore, the protection under the Convention serves a different purpose. Under the aforementioned treaties, Germany was thus also obliged to protect intangible cultural heritage, but only to a minimum standard. The Convention stipulates the promotion and protection of intangible heritage by enlisting the relevant practices and by doing so provides an elaborate system to achieve its aims. As such, it might not impose materially completely new international obligations, but requires Germany to build up the necessary institutions and provide for the corresponding procedure.

III. Ratification Process in Germany Germany’s process to ratify the Convention gives a prime example of the difficulty a federal State has in adhering to international treaties.

16 Art. 1 Decision of the European Parliament and of the Council 1194/2011/EU of 16 November 2011, OJ 2011 L 303, 1. 17

Ibid., Art. 2 (1).

18

Ibid., Art. 3.

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If a treaty regulates the political relations of the federation or relates to subjects of federal legislation, the German Bundestag has to agree to the ratification by a so-called ratification law, Article 59 (2) cl. 1 German Basic Law (BL). This however requires that the federal State is competent to regulate the matter according to Articles 70 et seq. BL, as the federal State cannot legitimise the ratification on behalf of the Länder.19 In the German federal system, the Länder hold legislative jurisdiction according to Article 70 Basic Law20 as long as it is not transferred to the federal State by Articles 73, 74 BL. Culture as a typically regional phenomenon is subject to the jurisdiction of the Länder, whereas the federal State holds competence to sign international treaties according to Article 32 (1) BL. Thus, by ratifying a cultural international treaty, the federal State assumes obligations which only the Länder can implement. Therefore, the negotiation and ratification of a cultural international treaty is preceded by a complex process in which the federal State and the Länder have to be coordinated and their interests have to be harmonised. In the so-called Lindau accord,21 the Länder and the Federal State agreed that the competence to sign such an international treaty concerning the competences of the Länder remains with the Federal State whereas the Länder carry out its implementation.22 To ensure that the federal State is not bound by international obligations that the Länder refuse to adhere to, the Länder have to give their consent prior to the ratification of the respective treaty.23 To facilitate the communication between the Federal State and the Länder and to coordinate the decision process of the Länder towards one joint solution, the Standing Treaty Commission of the Länder (Ständige Vertragskommission der Länder) has been created.24 This Standing Treaty Commis-

19

Ingolf Pernice, Art. 59, in: Horst Dreier (ed.), Grundgesetz Kommentar, vol. II (2nd ed. 2006), para. 34. 20

German Basic Law (Grundgesetz), 23 May 1949, Bundesgesetzblatt (BGBl.) I, 1, as amended on 11 July 2012, BGBl. I ,1478 (BL). 21 Verständigung zwischen der Bundesregierung und den Staatskanzleien der Länder über das Vertragsschließungsrecht des Bundes (Lindau Accord), 14 November 1957, reprinted in: Ingolf Pernice, Art. 32, in: Dreier (ed.) (note 19), para. 48. 22

Ibid., para. 43.

23

Lindau Accord, figure 3.

24

Lindau Accord, figure 4 lit. b.

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sion recommends whether and under which conditions the Länder shall give notice to the federal Foreign Office to approve the treaty.25 Additionally, the Länder harmonise their cultural and educational policies in a cooperative body, the Standing Conference of the Ministers of Education and Cultural Affairs of the Länder in the Federal Republic of Germany (Kultusministerkonferenz)26 (Standing Conference). If a treaty deals with cultural issues, the Standing Conference examines its obligations and elaborates on the perspective of its implementation and is invited to give its opinion before the Standing Treaty Commission of the Länder starts its work.27 In the decision of 8 December 2011, the Standing Conference agreed to the ratification of the Convention under the condition that the implementation of the Convention and its financing are sorted out.28 Subsequently, the Länder coordinated their views in the Standing Treaty Commission. Simultaneously, the Federal Foreign Office led consultation with the relevant federal departments. To elaborate on the funding, representatives of the Standing Conference additionally joined the discussion. The departments involved agreed that a ratification law by the Bundestag was not necessary, which was noted in a non-published result annotation.29 On the basis of this result annotation the Federal Cabinet decided to ratify the Convention on 12 December 2012.30 Thus, on 10 April 2013, Germany was able to deposit the in-

25

Christian Bücker/Malte Köster, Die Ständige Vertragskommission der Länder, Juristische Schulung 11 (2005), 976, 978. 26

Cf. Standing Conference (Kultusministerkonferenz), Foundation and Composition, available at: http://www.kmk.org/information-in-english/standing-conference-of-the-ministers-of-education-andcultural-affairs-of-the-laender-in-the-federal-republic-of-germany.html (accessed on 30 January 2015). 27

Bücker/Köster (note 25), 978.

28

Secretary of the Standing Conference (Generalsekretär der Kultusministerkonferenz), Position der Kultusministerkonferenz zur Ratifizierung des UNESCO-Übereinkommens zur Erhaltung des immateriellen Kulturerbes der Menschheit, No. 2, available via: http://www.kmk.org (accessed on 30 January 2015). 29

The result annotation has not been published but was issued the day before the cabinet decided upon ratification according to information given by the German UNESCO Commission. 30 Federal Government Commissioner for Culture (Staatsminister für Kultur und Medien) Bernd Neumann, Deutschland tritt UNESCO-Konvention zur Erhaltung des immateriellen Kulturerbes bei, Press Release, available via: http://www.unesco.de/kultur/immaterielles-kulturerbe/in-deutschland. html (accessed on 8 May 2015).

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strument of ratification,31 with the reservation that she should not be bound by Article 26 (1) of the Convention,32 thereby evading the obligation to contribute to the fund which would have covered € 250,000 p.a.33

IV. Implementation of the Convention In Germany, according to Article 59 (2) BL, a convention usually needs an act of transformation or incorporation into the national legal system by means of a law, directive, or administrative order.34 As culture falls under the jurisdiction of the Länder, it is their role to enact the relevant legal instruments.35 In the case of the Convention, the Länder decided not to enact any legal instruments but to directly apply the Convention and its guidelines published by the UNESCO.36

A. The German Conventional Bodies37

In Germany, the German UNESCO Commission (Deutsche UNESCO-Kommission) (the Commission), deals with UNESCO matters in Germany. Germany has already designated the Commission as National Point of Contact in accordance with Article 11 CSICH for the information exchange and implementation of the Convention in March 2007.38 The Commission is organised as a membership corporation

31

See supra, note 2.

32

Ibid.

33

German Parliament, Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten HansJoachim Otto (Frankfurt), Christoph Waitz, Jens Ackermann, weiterer Abgeordneter und der Fraktion der FDP, UNESCO-Übereinkommen zur Bewahrung des immateriellen Kulturerbes vom 17 Oktober 2003, 11 June 2009, BT Drs. 16/13343, 3. 34

Pernice (note 19), para. 33.

35

Cf. ibid., para. 34.

36

Information given by the German UNESCO Commission.

37

Cf. for the Organisation of the German Commission, see the information available at: http://www. unesco.de/ueber-uns/deutsche-unesco-kommission/organigramm.html (accessed on 2 April 2015). 38

UNESCO, Diversity of Cultural Expressions, 9 November 2012, UNESCO Doc. CE/12/6.IGC/ 4 (2012), 50.

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and financed with an annual sum of € 51,00039 by the Federal Foreign Office.40 The Commission holds thereby an intermediate position between the national and international cultural debate41 as it also organises international projects such as e.g. the U40 Forum in June 2009 together with the International Federation of Coalitions for Cultural Diversity (IFCCD) on the occasion of the Second Conference of Parties to the Convention.42 The Commission appointed for the period 2015–2018 a Committee of Experts which evaluates the proposals of the Länder.43 The Committee of Experts issues recommendations regarding which proposals to select for the German Nationwide Inventory (Article 12 (1) CSICH), the International Inventory (Article 16 (1) CSICH), and the list of best practices (Article 18 (3) CSICH).44 The work of the Committee of Experts and the selection process is coordinated by a special office at the Commission which is paid for by the Federal Government Commissioner for Culture and Media (Staatsministerin für Kultur und Medien).45

B. Nationwide Inventory

To comply with Article 12 (1) CSICH, Germany decided to compile one nationwide inventory for intangible cultural heritage.46 As Bavaria and North-Rhine Westphalia received a large amount of applications for the nationwide inventory, those Länder decided to draw up additional regional inventories. Due to the federal system, the selection process also involves both institutions on the federal and the Länder level. 39

Ibid.

40

Cf. Information on the German UNESCO Commission is available at: http://www.unesco.de/ ueber-uns/deutsche-unesco-kommission.html (accessed on 2 April 2015). 41 German Parliament, Schlussbericht der Enquete-Kommission “Kultur in Deutschland,” 11 December 2007, BT Drs. 16/7000, 429. 42

UNESCO (note 38), 50.

43

Ibid.

44

Ibid.

45

German Parliament, 17. Bericht der Bundesregierung zur Auswärtigen Kultur- und Bildungspolitik, 14 February 2014, BT Drs. 18/579, 43. 46

See http://www.unesco.de/5424.html (accessed on 4 February 2015).

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The ministries of the Länder dealing with cultural affairs issue a call for proposals whereby groups or individuals can put forward their traditions.47 The respective ministry selects four proposals and forwards them to the Standing Conference.48 The Secretariat of the Standing Conference pools the proposals of the Länder and forwards the list to the Cultural Commission of the Standing Conference,49 which then forwards the list to the German UNESCO Commission who decides on the applications. The selection is then forwarded to the Standing Conference and the Federal Government Commissioner for Culture and Media to obtain official confirmation.50 The selection process, especially the procedure of official confirmation, will be revised not later than five years after the first nomination process.51 The first call for proposals was released on 3 May 2013 with reference to the criteria established by the Commission and a deadline of 30 November 2013 set.52 On 11 December 2014, the first list for the national inventory of intangible cultural heritage was approved by the Standing Conference53 and contains 27 traditions and handcrafts, e.g. German Bread Culture, Thatcher's Craft, the so-called ‘Biikebrennen,’ a fire ceremony celebrated by the Frisians, the Rhineland Carnival and the Passion Plays of Oberammergau.54 The nominees were honoured on 16 March 2015 by the Federal Government Commissioner for Culture and Media.55 The Committee declined 34 proposals and by December 2014 still had to decide on 22 proposals as 47

Information available via: http://www.unesco.de (accessed on 30 January 2015).

48

Ibid.

49

Ibid.

50

Secretary of the Standing Conference, Position der Kultusministerkonferenz zur Gestaltung des Verfahrens für die Vorschlagsliste Immaterielles Kulturerbe der Kultusministerkonferenz an die Deutsche UNESCO-Kommission sowie zur Aktualisierung des Ländereinheitlichen Nominierungsverfahrens in Deutschland, 6 December 2012, available via: http://www.kmk.org (accessed on 30 January 2015). 51

Ibid., number 2.

52

German Parliament (note 45), 42.

53

Secretary of the Standing Conference, Stand des Umsetzungsverfahrens, 11 December 2014, No. 2, available via: http://www.kmk.org (accessed on 30 January 2015). 54 For the complete list see German Nationwide Inventory of Intangible Cultural Heritage, available at: http://www.unesco.de/9093.html?&L=1 (accessed on 4 February 2015). 55 Cf. German UNESCO Commission (Deutsche UNESCO-Kommission), Auszeichnung von 27 Kulturformen als Immaterielles Kulturerbe in Deutschland, available at: http://www.unesco.de/kultur/ 2015/auszeichnung-ike-deutschland.html (accessed on 2 April 2015).

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well as on nine applications to the Register of Best Safeguarding Practices.56 The second call for proposals takes place from March to October 2015.57 In March 2015 Germany nominated ‘The Idea and Practice of Cooperatives’58 as its first nomination to the Representative List of the Intangible Cultural Heritage of Humanity (Article 16 (1) CSICH) and joined the multinational nomination of falconry.59

C. Other Measures for Safeguarding Intangible Heritage

Furthermore in accordance with Article 13 CSICH the Council for Sustainable Development has established e.g. policy benchmarks for cultural diversity in education, for sustainable development, and promoting consumption.60 Projects to improve international cooperation under Article 14 CSICH were started, such as the Berlinale Talent Campus,61 the Frankfurt Book Fair’s Publishers Invitation programme,62 and the World Cinema Fund (WCF).63

V. Assessment As Germany actively took part in the negotiation of the Convention, the question arises why more than ten years had to pass between the passing of the Convention and its Ratification. The reasons for this delay are both social-political and legal. 56

Id., Press release of 12 December 2014, available via: www.unesco.de (accessed on 4 February 2015).

57

Id., Vorschläge für Immaterielles Kulturerbe gesucht, available at: http://www.unesco.de/index. php?id=uho_3_2014_ike_bewerbung (accessed on 4 February 2015). 58 Cf. for the description “The Idea and practice of Cooperatives,” available at: http://www.unesco. de/9095.html?&L=1&tx_unescosearch_single%5Buid%5D=109&tx_unescosearch_single%5Bactio n%5D=show&tx_unescosearch_single%5Bcontroller%5D=Applications&cHash=6e038ec5fedd23 60239117fe3cce0466 (accessed on 4 February 2015). 59 German UNESCO Commission, Aufnahmeverfahren international, available at: http://www. unesco.de/kultur/immaterielles-kulturerbe/aufnahmeverfahren/international.html (accessed on 2 April 2015). 60

UNESCO (note 36), 25.

61

Ibid., 45, 74 et seq.

62

Ibid., 20, 74.

63

Ibid., 46, 74.

678 GERMAN YEARBOOK OF INTERNATIONAL LAW 57 @ 2014 A. Social-Political Reasons

Before Germany decided to adhere to the Convention, there had been mainly socio-political reasons why Germany hesitated to do so. While not the most pressing, the most sensitive reason was that the consciousness and promotion of traditions also has a painful side in Germany: The national socialist regime abused certain traditions, for example the solstice celebrations,64 for propaganda means. After World War II, the politicians of the German Democratic Republic also frequently cited folk culture to promote their aims. So on the one hand, accessing the existing traditions, customs, and practices in Germany requires a critical evaluation of the influence of those political regimes on the former in order to extract their original core. On the other hand, it was also feared that the promotion of tradition and customs could again give a forum to rites conflicting with German democratic values.65 This however had already been dealt with when Germany succeeded in including the ordre public exception to the definition of intangible heritage during the negotiations.66 With this in mind, the ratification bears even more so the chance to rediscover the benefits of shared tradition and practiced heritage free of any political influence. Additionally, the Convention itself does not draw up a clear catalogue of requirements for a successful entry in the inventories67 as both international68 and national criteria69 are formulated in an open and general manner. Therefore, critics feared an abuse of the inventories for economic, political, or ideological interests.70 The vague 64 Die Tageszeitung, 12 December 2013, Rattenfänger, Nikolaus und Karneval, available at: http:// www.taz.de/!129267/ (accessed on 6 February 2015). 65

German Parliament (note 33), 4.

66

Ibid.

67

Cf. Westfälische Nachrichten, 1 December 2011, Deutschland auch 2011 ohne Unesco-Kulturerbe, available at: http://www.wn.de/Welt/Kultur/2011/12/Deutschland-auch-2011-ohne-Unesco-Kultur erbe (accessed on 6 February 2015); Spiegel, 12 December 2012, Unesco-Abkommen zu Kulturerbe: Fasching, Jodeln, Spreewaldgurke, available at: http://www.spiegel.de/kultur/gesellschaft/deutschlandtritt-unesco-abkommen-fuer-immaterielles-kulturerbe-bei-a-872029.html (accessed on 6 February 2015). 68

Cf. UNESCO, Criteria and Timetable of Instruction, available at: http://www.unesco.org (accessed on 6 February 2015). 69 Cf. German UNESCO Commission, Kriterien zur Aufnahme kultureller Ausdrucksformen zur Aufnahme ins bundesweite Verzeichnis des immateriellen Kulturerbes, available via: www.unesco.de (accessed on 6 February 2015). 70

Cf. Westfälische Nachrichten (note 67).

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terminology is, however, necessary due to the complex structure of intangible culture heritage and the diversity and variation of its forms. A more detailed definition might exclude certain customs or cause stagnation of their development and thereby fail to realise the purpose of the convention – the safeguarding of cultural diversity as a living form of heritage. The applications for the first call for proposals, however, showed that this concern was unfounded. It should also be noted that in the case where the act of enlisting provides an economic advantage, this will enhance participation in the relevant custom, thereby also promoting the cultural heritage. Another reason why Germany hesitated to sign the Convention was the assumption that Germany already met the standards of the Convention. Germany already ran numerous international cultural projects, which are collected in the ‘Kaleidoscope of the Diversity of Culture Expression Project’ of 2011/2012.71 The Project encompasses the existing spectrum of projects, initiatives, and measures gathered by groups, players from civil society, and individuals.72 The protection of cultural heritage ought to be achieved by a cultural impact assessment (Kulturverträglichkeitsprüfung) which is carried out for all draft legislations at the Federal level containing cultural issues.73 These measures, however, do not compare to the standards met by the inventories under the Convention and therefore could not pose a convincing reason.

B. Legal Reasons

After Germany reached the decision to become a Member State, she had to undergo the abovementioned ratification process and decide on how to implement the Convention. This raised several legal and corresponding political issues. The Länder had clearly declined to take part in financing an agency for national coordination or the contributions to the Fund for the Safeguarding of the Intangible 71 German UNESCO Commission, Kaleidoscope of the Diversity of Culture Expression Project, 2011/2012, information available at: http://www.unesco.de/kaleidoskop.html (accessed on 5 February 2015). 72 73

Ibid.

German UNESCO Commission, Quadrennial Periodic Report on Measures to Protect and Promote the Diversity of Cultural Expressions, 14 February 2012, 6, available at: http://www.unesco.de/ fileadmin/medien/Dokumente/Kultur/kkv/German_Periodic_Report_2012.pdf (accessed on 5 February 2015).

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Cultural Heritage (Article 25 CSICH).74 Thus, the question of how to perform and finance these new duties prolonged the discussions. This led to the declaration by Germany in accordance with Article 26 (2) CSICH that she shall not be obliged to contribute to the Fund.75 Furthermore, the Federal Constitution posed challenges to the ratification and implementation and therefore delayed the process. As elaborated above, both Länder and the Federal State agreed that neither a ratification law nor an implementation act would be necessary. While this might be true for the former (a), the lack of the latter contradicts the German legal system (b).

1. Ratification Law According to Article 59 (2) cl. 2 BL, a ratification law is only necessary if the international treaty affects the foreign policy of the Federal State or if it deals with issues which affect fundamental rights or basic constitutional principles and hence must be decided by the parliament (Parlamentsvorbehalt).76 The provisions of the Convention do not have such an effect, and with its declaration under Article 26 (2) ICSICH Germany also avoided the necessity of an implementing law as required under the terms of Article 110 BL. Furthermore, a legislative act of the Federal State could not possibly – even if the Federal Council (Bundesrat) had participated – replace the consent of the Länder who hold jurisdiction on the matter.77

2. Implementation Act What would have been necessary nonetheless is an act of transformation into the German legal system. Again the Federal State cannot pass an implementation law for 74

Secretary of the Standing Conference, Position der Kultusministerkonferenz zur Ratifizierung, No. 4, available via: http://www.kmk.org (accessed on 30 January 2015). 75 Bekanntmachung des Übereinkommens zur Erhaltung des immateriellen Kulturerbes, 7 June 2013, BGBl. II, 1009. 76

Pernice (note 19), para. 32.

77

Ibid., para. 43.

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the abovementioned reasons. Therefore, it would have been the task of the Länder to pass a law, directive, or administration rule referring to the treaty. By abstaining from both, Germany chose the same procedure as when the WHC was signed. This however is even more astonishing taking into account how the discourse about its status in Germany developed during the last ten years: As it also has no ratification law, the WHC is commonly characterised as administrative agreement (Verwaltungsabkommen) pursuant to Article 59 (2) cl. 2 BL78 and the corresponding guidelines as administration rules (Verwaltungsvorschriften).79 Such an administrative agreement still needs a national legislative implementation act, either a directive or a national administration rule, to become part of German law.80 As such a transformation was never issued, the binding nature of the WHC within Germany has been challenged by scholars81 and in the court decision about the Waldschlösschenbrücke82 was held to be not binding. It has been suggested that the WHC could be included into the German legal system by interpreting the relevant national provisions in accordance with the WHC.83 This, however, is only possible if the relevant national rule allows the necessary margin of appreciation and interpretation. Court decisions have already shown that this margin of appreciation and interpretation does not exist in German Monument Law.84 Therefore, the mere possibility to include the WHC or the CSICH into national law by interpreting provisions in the light of the conventions cannot suffice to implement their obligations.

78 Ernst-Rainer Hönes, Zur Transformation des Übereinkommens zum Schutz des Kultur und Naturerbes der Welt von 1972, Die Öffentliche Verwaltung (DÖV) 2 (2008), 54, 55; Armin von Bogdandy/ Diana Zacharias, Zum Status der Weltkulturerbekonvention im deutschen Raum, Neue Zeitschrift für Verwaltungsrecht 5 (2007), 527, 529. 79

Cf. von Bogdandy/Zacharias (note 78).

80

Ibid., 529.

81

Ibid., 527 with further references.

82

Higher Administrative Court of Saxony (Sächsisches Oberverwaltungsgericht), Decision of 9 March 2007, reprinted in: DÖV 13 (2007), 564, 566. 83 84

von Bogdandy/Zacharias (note 78), 531.

Administrative Court of Dessau (Verwaltungsgericht Dessau), Judgment of 6 April 2001, reprinted in Zeitschrift für Bergrecht (ZfB) 2002 (143), 69.

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It has further been postulated that the Federal State should ex post facto pass an implementation law for the WHC.85 As the Federal State does not hold jurisdiction over cultural matters, this is not possible in the case of the WHC and the CSICH.86 On the other hand, the Länder are bound to support the policies of the Federal State by the principle of federal loyalty (Bundestreue). Under this principle the Länder are obliged to give effect to a Convention that the Federal State has signed.87 Still, the lack of implementation instruments does not constitute a breach of the CSICH, as Germany is under Article 35 lit. b) CSICH only obliged to recommend that the Länder adopt the appropriate measures.

VI. Concluding Remarks As the first call for applications for the nationwide inventory was successfully carried out, most socio-political concerns should by now have been assuaged. It would be desirable that Germany raise public awareness for the inventories and conduct educational measures as stipulated in Article 14 ICSICH. Still even more urgent is the need to establish a clear legal situation for the inventories and other possible measures promoting and protecting intangible heritage. Therefore, this article ends with a call to the relevant ministries in the Länder to bring forth appropriate proposals to transform the CSICH into the Länder law to prevent the story of the Convention taking the same disappointing turn as the history of the WHC did.

85

Hönes (note 78), 61.

86

When reference is made to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in this matter, the relevant authors ignore that this convention deals with the export of cultural goods, an issue which is explicitly transferred to the competence of the federal State by Art. 73 (1) No. 5 and No. 5a BL. 87

Cf. for the WHC von Bogdandy/Zacharias (note 78), 530.

Watercourses: The UN Convention and Germany’s International Treaties SARAH GAHLEN(

In a world in which water has become an increasingly scarce resource in many regions, the use of water resources in rivers that cross the boundaries of two or more States can be a constant source of conflict. The earliest agreements between States on the use of waters and other resources from international rivers have been concluded several thousand years ago.1 However, general law on the use of watercourses is still to a very wide extent customary and based on principles that have been developed in decisions of international courts and in internationally negotiated instruments, e.g. regional agreements such as the United Nations Economic Commission for Europe (UNECE) Helsinki Convention2 or non-binding recommendations such as the Helsinki Rules,3 drafted by the International Law Association in 1966. The United Nations (UN) Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention),4 as the first general, globally applicable,

(

Post-doctoral researcher at the Walther Schücking Institute for International Law at the University of Kiel. 1

Edith Brown Weiss, The Evolution of International Water Law, Recueil des Cours de l’Academie de Droit International 331 (2007), 163, 231. 2 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, UNTS 1936, 269 (UNECE Helsinki Convention); for an outline of the Convention see Attila Tanzi, Regional Contributions to International Water Cooperation: The UNECE Contribution, in: Laurence Boisson de Chazournes et al. (eds.), International Law and Freshwater (2013), 155, 162. 3 International Law Association, Report of the Fifty-Second Conference, Helsinki (1966), 484, also available at: http://webworld.unesco.org/water/wwap/pccp/cd/pdf/educational_tools/course_modules/ reference_documents/internationalregionconventions/helsinkirules.pdf (accessed on 19 March 2015). 4

Convention on the Law of the Non-Navigational Uses of International Watercourses, GA Res. 51/229 of 21 May 1997 (Watercourses Convention).

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and binding codification, therefore presents an important step in the development of international water law.5 Even before its coming into force, it has already been quoted by the International Court of Justice (ICJ) as a source of reference in the GabčikovoNagymaros case.6 The Convention is a framework agreement, meant to encourage riparian States to negotiate bi- or multilateral treaties on the use of their international watercourses by formulating well-established principles and suggesting procedural mechanisms for cooperation. It does not set out specific obligations that would require States to amend their existing watercourse agreements with their neighbouring riparian States, and it leaves agreements that are already in force unaffected. The Watercourses Convention therefore only has an indirect effect on States, such as Germany, which already have a number of agreements in place. The Convention’s guiding principles on the cooperation between riparian States, such as the equitable sharing or the avoidance of significant harm, are certainly not a novelty to Germany or its neighbouring States. Still, considering that the bi- and multilateral watercourse agreements to which Germany is a party were concluded at different points in time and often for rather specific reasons, it will be interesting to compare their provisions with the guiding principles of the Watercourses Convention. The Watercourses Convention entered into force on 1 August 2014, following the agreement’s ratification by Vietnam as its 35th contracting State in May 2014. It thus took the Convention, which was adopted in 1997, seventeen years to take effect. Germany signed the Convention on 13 August 1998 and ratified it in 2006. Among the contracting States of the Convention are many States in Europe, such as the Netherlands, France, Spain, Portugal, Denmark, Sweden, Norway, and Greece; in the near East, Jordan, Syria, and Israel; and a number of States in Africa, namely South Africa, Morocco, and Niger.

5

Affef Ben Mansour, La Convention des Nations Unies sur l’utilisation des cours d’eau à fins autres que la navigation, in: Bogdan Aurescu/Alain Pellet (eds.), Actualité du Droit des Fleuves Internationaux (2010), 205; Flavia Rocha Loures et al., The Authority and Function of the UN Watercourses Convention, in: Flavia Rocha Loures/Alistair Rieu-Clarke (eds.), The Watercourses Convention in Force: Strengthening International Law for Transboundary Water Management (2014), 49. 6

International Court of Justice (ICJ), Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, 80.

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I. The Legal Framework Established by the Watercourses Convention The Convention is far from creating a globally uniform legislative framework for watercourses management. Its aim is to provide States with a basis in international law for the conclusion of bi- or multilateral treaties to manage their transboundary rivers. It is the aim of the Watercourses Convention to encourage the negotiation of agreements between riparian States and to provide them with a framework of contractual guidelines that can serve as a legal basis for their cooperation.

A. Guiding Principles of Material Law

The regime set out by the Watercourses Convention can thus only be regarded as a guideline for possible agreements for specific watercourses that are to be concluded by riparian States of international rivers. The Convention consists of seven parts, its main regulative parts being Part II setting out general principles for the use of international watercourses, Part III which contains provisions compelling States to inform the other riparian States about planned measures, and Part IV on the cooperation for the prevention of pollution. The general objectives inspiring the agreements that the Watercourses Convention expects riparian States to adopt are the principle of the equitable and reasonable utilisation and participation in the non-navigational use of watercourses (Article 5 Watercourses Convention) and the obligation not to cause significant harm (Article 7 Watercourses Convention). The relationship between these two principles is far from clear and has been the subject of many debates,7 from the time of the drafting of the Convention to the present day. In fact, the text of the Convention does not give many hints as how to deal with situations where the two principles are in conflict with each other. It is possible to argue that an equitable and reasonable utilisation of water resources would always presuppose the absence of significant harm, but on the other hand, and depending on the understanding of what ‘significant’ harm is, this 7

Patricia Wouters, The Legal Response to International Water Conflicts: The UN Watercourses Convention and Beyond, German Yearbook of International Law 42 (1999), 293, 307; Dirk Nauschütt, Die Konvention über das Recht der nicht-schiffahrtlichen Nutzung internationaler Wasserläufe (1999), 374; Salman M. A. Salman, Misconceptions Regarding the Interpretation of the UN Watercourses Convention, in: Rocha Loures/Rieu-Clarke (eds.) (note 5), 28, 29.

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interpretation could prohibit development of water resources by upstream riparian States to a very wide extent.8 Similarly, the factors relevant to determine an equitable and reasonable utilisation, which are set out in Article 6 Watercourses Convention, do not give priority to any of these factors over the others, and according to Article 10 Watercourses Convention, no use is genuinely more important than the others where there is a conflict between different uses. The Convention thus calls for a consideration of conflicts by riparian States on a case-by-case basis, in a spirit of cooperation and reconciliation of uses. It is needless to say that the inherent conflict between the principles of equitable use and the principle not to cause significant harm can only be overcome in negotiation and consultation processes between riparian States. It can therefore be argued that the establishment of procedures by which this dialogue between States will be conducted is the main objective of the Convention.

B. Procedural Rules on Notification and Dispute Settlement

In effect, the Convention contains many procedural rules that States can make use of to organise their cooperation. Article 8 Watercourses Convention prescribes contracting States’ general duty to collaborate and cooperate in the use of international watercourses, but this obligation is echoed in many other provisions of the agreement as well. The provisions in Part II of the Convention on the notification procedure for measures planned by one riparian State (Articles 11 to 19 Watercourses Convention) set out a surprisingly detailed mechanism that will facilitate the communication between riparian States in the event of planned changes to the current management of water resources. Articles 11 and 12 Watercourses Convention on the obligation to inform other riparian States of planned measures and to notify them about possible 8

Simon Nicholson, Water Scarcity, Conflict, and International Water Law: An Examination of the Regime Established by the UN Convention on International Watercourses, New Zealand Journal of Environmental Law 5 (2001), 91, 111; Salman M. A. Salman, The Future of International Water Law: Regional Approaches to Shared Watercourses? in: Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2011), 907, 915.

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adverse consequences, can be read to be mandatory as a part of customary international law,9 whereas the following provisions on the notification and reply procedure are explicitly only applicable if the States did not agree otherwise. Notwithstanding States’ autonomy in negotiating bi- or multilateral agreements, the Convention shows a strong tendency to create legal certainty through clear procedural rules10 that States can rely on in the absence of a different procedure agreed on. The Convention’s dispute resolution mechanism has for instance been copied into the 2004 framework agreement on the basin of the River Sava between Serbia, Montenegro, Croatia, Bosnia-Hercegovina, and Slovenia.11 In Part IV on the prevention, reduction, and control of pollution, Article 21 Watercourses Convention compels States to cooperate in their measures against pollution, Article 21 (3) Watercourses Convention giving rather practical examples of “mutually agreeable measures and methods” States parties could undertake,12 such as the establishment of common standards in measuring and assessing pollution. Similarly, the Convention’s dispute settlement provision in Article 33 Watercourses Convention generally obliges States to deal with disputes by peaceful means. If they do not manage to settle their conflict through negotiation, Article 33 (3)–(9) Watercourses Convention suggests a dispute settlement mechanism in which an impartial fact-finding body is established and will present a recommendation to solve the conflict. The procedure is quite detailed, more so than the corresponding provisions on dispute settlement in the UNECE Helsinki Convention.13 In accordance with the Watercourses Convention’s objective to leave to States the greatest possible autonomy in concluding agreements, this procedure will however only apply if they have not otherwise agreed. It has rightly been pointed out that the Convention’s only truly mandatory principle regarding dispute settlement is the obligation to impartial factfinding.14 This amounts to an obligation to instal some cooperation and conciliation 9 10

Rocha Loures et al. (note 5), 53. Wouters (note 7), 320.

11

Franck Latty, Des vertus et de l’intérêt: Les clauses de reglement des différends dans les Conventions fluviales, in: Aurescu/Pellet (eds.) (note 5), 239, 252. 12

Mansour (note 5), 211.

13

Alistair Rieu-Clarke, The Role and Relevance of the UN Convention on the Law of the NonNavigational Uses of Watercourses to the EU and its Member States, British Yearbook of International Law 78 (2007), 389, 412. 14

Wouters (note 7), 313; Latty (note 11), 252; Salman (note 7), 33.

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procedure, the details of which are however left to the autonomous agreement of the States parties. Notwithstanding the difficulties to reconcile the desire for legal certainty through binding dispute resolution with States’ reluctance to submit to mechanisms of this kind, Article 33 Watercourses Convention still has the benefit of being a clear model regime with a reasonable balance of interests. Where there is no consensus between States for a different mechanism, Article 33 Watercourses Convention may be a good regime to take recourse to. The combination of rather flexible material rules with a detailed set of procedural default rules has been termed the Convention’s strength and weakness at the same time. It must certainly be stressed that due to the global applicability of the Convention, possible uses of international watercourses are so varied that it will hardly be possible to set out clear priorities or even guidelines to determine priorities in conflicts of use. The Convention’s emphasis is on procedural guidelines that would ensure communication between riparian States, and its lowest common denominator is to formulate information and consultation duties that can be argued to be customary international law anyway, so that States cannot easily ignore them. This is revealing of the Convention’s spirit to overcome conflicts of use in a consultation process resulting in compromises on a case-by-case basis rather than to prioritise certain uses or certain criteria in the dispute resolution process.

C. Interplay with Existing Agreements

For most international watercourses, especially in developed States, agreements between riparian States regarding the use of the river resources already exist.15 The international treaty practice is, however, very varied in form. Agreements reach from very specific treaties clearly setting out technical conditions to more general agreements on basic principles for the use of river resources.16 According to Article 3 (1) Watercourses Convention, it leaves agreements on international watercourses that have been concluded prior to the coming into force of the Convention unaffected. The Convention therefore does not have any impact on the agreements regarding the use and protection of rivers that are already in force, 15

See the overview given by Brown Weiss (note 1), 232.

16

Wouters (note 7), 301.

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and the position of contracting States that already have concluded agreements for their international watercourses remains the same even after the coming into force of the Watercourses Convention. Notwithstanding the fact that the Convention is meant to enhance the principles of equitable and reasonable utilisation and the obligation not to cause significant harm, it would actually not affect a prior bi- or multilateral agreement even where this did not fully comply with these principles.17 If Article 3 (2) Watercourses Convention suggests that States “may, where necessary, consider harmonizing such agreements with the basic principles of the present Convention,” this language already points out that a revision of existing agreements following the entry into force of the Convention is highly unlikely. It has rightly been pointed out that the ratification of the Convention is thus a rather empty gesture for those States that already have established agreements for their international watercourses with other riparian States, whereas non-contracting States would be free to negotiate corresponding agreements even without ratification of the Convention.18 Still, adherence to the Convention is a declaration of support towards the principles by which the legislative framework is inspired and thus a direct contribution to the development of public international law.

II. The Watercourses Convention and Germany The German Parliament (Deutscher Bundestag), when ratifying the Watercourses Convention in 2006, considered that a change or adaptation of the existing legal agreements on international watercourses would not be necessary.19 In the same way, the German Ministry for the Environment considers that Germany already fulfils the obligations that arise from the entry into force of the Watercourses Convention,20 17

Salman (note 7), 32.

18

Attila Tanzi, The UN Convention on International Watercourses as a Framework for the Avoidance and Settlement of Waterlaw Disputes, Leiden Journal of International Law 11 (1998), 441, 443. 19

German Parliament (Deutscher Bundestag), Bundestagsdrucksachen 16/738, 21 February 2006, available at: http://dipbt.bundestag.de/doc/btd/16/007/1600738.pdf (accessed on 18 March 2015). 20

German Federal Ministry for the Environment, Nature Conservation, Building, and Nuclear Safety (Bundesministerium für Umwelt, Naturschutz, Bau und Reaktorsicherheit), UN-Gewässer-Konvention tritt in Kraft, Press Release No. 135/14 of 15 August 2014, available at: http://www.bmub. bund.de/presse/pressemitteilungen/pm/artikel/un-gewaesser-konvention-tritt-in-kraft/ (accessed on 18 March 2015).

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and expresses its desire that the German expertise in this matter may serve other States for the conclusion of specific conventions for their international watercourses. This is in line with the European Union’s (EU) development policy, in which the distribution of water resources is an important matter, with the Watercourses Convention as a valuable basis for the management of river basins.21 A brief analysis of the existing multilateral treaties on international watercourses to which Germany is a party, drawing some comparisons to the approach of the Watercourses Convention, will highlight the scope and the limits of the Convention. Within the European Union, transboundary water regulation has increasingly been inspired by EU law. The Water Framework Directive (WFD),22 adopted in 2003, lists as its main objectives to protect both groundwater and surface water from pollution and thus to ensure the health of terrestrial and marine water ecosystems. It also aims at a fair pricing policy. Under the WFD, water resources are administrated according to river basins, irrespective of political boundaries. Its impact on the regulation of watercourses in the EU is thus immediate.23 Still, even though the WFD names the sustainable use of water and the mitigation of floods and droughts as its objectives, its focus is on pollution prevention and the improvement of water quality rather than on the management of water resources in terms of quantity or the prevention of floods. This prioritisation is of course due to the state of facts in Europe, where water is generally not a very scarce resource, but where heavy industrialisation leads to a significant danger of pollution. The WFD’s main objectives, as a regional instrument, are thus rather different from the aims of the Watercourses Convention, which is meant to apply on a global basis. Notwithstanding the wide range of matters that could be considered as covered by the Watercourses Convention, its substantive provisions centre on the equitable utilisation of water and the management of competing uses of water, and thus rather on the management of water quantity than water quality.24

21

Rieu-Clarke (note 13), 423.

22

Directive 2000/60/EC of 23 October 2000, establishing a framework for Community action in the field of water policy, OJ 2000 L 327, 1. 23

Patrick Daillier, Régimes de responsabilité spécifiques (Meuse et Moselle; Indus et Mekong), in: Aurescu/Pellet (eds.) (note 5), 227, 229. 24

Rieu-Clarke (note 13), 401.

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The long tradition of watercourse agreements between Member States of the European Union and other States in Europe,25 the existence of the UNECE Helsinki Convention, and the superimposing rules of the WFD therefore do not mean that the rules of the Watercourses Convention would be entirely without effect on Germany and its neighbouring States. The different instruments rather act in parallel and enhance each other’s goals, even if they serve slightly different objectives.

A. The Rhine

The Rhine as the longest watercourse in Western Europe and one of the most important rivers in Germany has a long history of industrialisation and navigation, and environmental concerns have only been addressed in the last few decades.26 The Informal International Commission for the Protection of the Rhine against Pollution was already established in 1950, but the first formal treaty obliging the States to cooperate, the Bonn Agreement,27 was only adopted in 1963. Two different conventions of 1976 addressed pollution by chemicals and by chlorides through more technical means by developing limits to discharges. France only signed in 1983, namely due to the lack of acceptance of its provisions by the French region of Alsatia,28 and the conventions, only targeting certain substances and struggling with scientific uncertainties in setting the limits, could not be termed a success. Ironically, it was the non-binding Rhine Action Programme of 1987 that best achieved the goal to prevent further pollution, and it remained in force until the coming into force of the 1999 Convention on the Protection of the Rhine (Rhine Convention).29 Cooperation between the riparian States of the Rhine was improved, and to a certain extent triggered, by the impact of the UNECE Helsinki Convention and the 25

Ibid., 392.

26

André Nollkaemper, The Evolution of the Regime for the River Rhine, in: Surya P. Subedi (ed.), International Watercourses Law for the 21st Century (2005), 151, 152. 27

Agreement on the International Commission for the Protection of the Rhine against Pollution, 29 April 1963, UNTS 994, 3. 28 Philippe Guttinger, Etude de cas: Les affaires récentes de pollution du Rhin, in: Aurescu/Pellet (eds.) (note 5), 233, 235. 29 Convention on the Protection of the Rhine, 12 April 1999, see the EU Council Decision of 7 November 2000 concerning the conclusion, on behalf of the Community, of the Convention for the Protection of the Rhine, 16 November 2000, OJ 2000 L 289, 30.

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WFD. The Rhine Convention, however, develops many of their principles further30 and also goes beyond the provisions suggested by the Watercourses Convention. The scope of application of the Rhine Convention explicitly includes “aquatic and terrestrial ecosystems which could interact or could again interact with the Rhine” (Article 2 (d) Rhine Convention), and the “catchment area” of the Rhine as far as there is an impact on the river by pollution or for the matter of flood protection. The Rhine Convention’s focus on ecosystems highlights the fact that it also aims at protecting the river in its surrounding landscape, unlike the Watercourses Convention that, at first sight, merely concentrates on the water. Still, the provisions of the Watercourses Convention by no means exclude land-based activities within the river basin that would have an impact on the water.31 There is, however, one aspect in which the Rhine Convention clearly applies beyond the scope of the Watercourses Convention: The Watercourses Convention, according to its wording, only covers groundwater that is linked to the surface water and thus excludes ‘confined’ subterranean aquifers.32 In contrast to that, Article 2 (c) Rhine Convention extends its scope of application even to ecosystems that could possibly again interact with the Rhine and thus includes waters that are not necessarily in a permanent connection with the river. As highlighted by the provisions on the catchment area, prevention of inundations and their adverse impacts on the land and the water quality are certainly one of the main objectives of the Rhine Convention and repeatedly addressed in the agreement.33 This is a good example for a particular concern that is not spelled out and only indirectly addressed in the Watercourses Convention, e.g. through the “noharm” provision, but which is a major issue for the riparians of the river Rhine. Articles 6 to 15 Rhine Convention, and thus a considerable number of articles, address the establishment of the International Commission for the Protection of the Rhine and its competences and functioning. In comparison to that, the main objectives of the agreement, its aims, principles, and the undertakings of the contractual parties are only summarised in three provisions. Still, especially the principles set out 30

Nollkaemper (note 26), 164.

31

Rieu-Clarke (note 13), 399.

32

Kerstin Mechlem, International Groundwater Law: Towards Closing the Gaps?, Yearbook of International Environmental Law 14 (2003), 47, 53. 33

Nollkaemper (note 26), 165.

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in Article 4 Rhine Convention, such as the precautionary principle or the polluterpays principle, are fundamental maxims to which there are fairly good definitions. The Rhine Convention however does not contain technical regulations. Interestingly, even though it addresses the management of a specific river, it also does so by establishing an administrative body that can deal with matters when they arise and take new developments into account, rather than setting out concrete operation instructions.

B. The Danube

With regard to the cooperation between its riparian States, the Danube certainly presents a very special example of an international river. The Danube delta, shared between Romania and Ukraine, is one of the biggest deltas in Europe, and many species depend on the wetlands surrounding the delta. Further upstream, the Danube basin is shared by an impressive number of States, many of which depend on the resources of the river, and which have very different economic, climatic, and geographic characteristics. The Rhine and the Danube are actually linked systems, a small part of the groundwater of the Danube being the source of the River Aach, a tributary of the Rhine.34 Still, the systems are of course acknowledged and managed as separate watercourses, but the fact highlights the difficulties in determining the boundaries of a river basin or a watercourse system. The Convention on Cooperation for the Protection and Sustainable Use of the Danube River (Danube Convention)35 dates from 1994 and was signed by Bosnia and Herzegovina, Bulgaria, Germany, Croatia, Moldova, Montenegro, Austria, Romania, Serbia, Slovakia, Slovenia, the Czech Republic, Ukraine, Hungary, and the European Union. In fact, the integrated management of the Danube through the States that form part of its river basin and within the area of the river basin was one of the first implementations of the WFD for the riparian EU Member States, and even the nonEU Member States agreed to this form of management.36 Consequently, and very

34

Mechlem (note 32), 56.

35

Convention on Cooperation for the Protection and Sustainable Use of the Danube River, 29 June 1994, EU OJ 1997 L 342, 19. 36

Alistair Rieu-Clarke, Case Study of the Danube Basin, Colorado Journal of International Environmental Law and Policy 18 (2007), 611, 619.

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similar to the Rhine Convention, the Danube Convention’s scope of application extends beyond the provisions of the Watercourses Convention. The Danube Convention was heavily influenced by the UNECE Helsinki Convention, which in turn influenced the Watercourses Convention, so that it is not surprising that many provisions of the latter Convention can be found in the Danube Convention.37 It moreover contains some technical regulations, such as an Annex with a list of substances that shall not be discharged into the river, or at least not in significant quantities, and the Convention invites the parties to define concrete criteria for measuring the water quality (Article 7 (3) and (4) Danube Convention). Still, the Danube Convention also heavily relies on procedural provisions, namely regarding the organisation of cooperation and exchange of information. The notification duty that arises if one State plans activities that will have a transboundary impact (Article 11 Danube Convention), is the exact provision suggested by Article 11 Watercourses Convention,38 with a much lower threshold for the obligation to be triggered, however. The mechanism of dispute resolution in Article 24 (1) Danube Convention lists the International Commission as one of the institutions taking part in dispute settlement. Even if its actual task is not set out clearly, it is conceivable that the International Commission may assume the role of an impartial fact-finding body. More generally, the reliance on a regional, specialised organisation to deal with disputes between the parties also recalls the provisions in the Charter of the United Nations.39

C. The Elbe

The Elbe is subject to a Convention concluded between Germany and the Czech Republic in 1990 as the first international agreement signed by Germany after reunification and establishing the International Commission for the Protection of the Elbe. The Elbe Convention40 was explicitly based on the corresponding treaty of 1965 on

37

Ibid., 622.

38

Latty (note 11), 254.

39

Ibid., 249; Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

40

Convention on the International Commission for the Protection of the Elbe, 8 October 1990, Germany-Czech Republic, EU OJ 1991 L 321, 25.

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the Rhine,41 one of the predecessors of the 1999 Agreement. By a protocol of 1991, which entered into force in 1993, the International Commission was granted legal personality to fulfil its tasks. Similar to the Rhine and the Danube Conventions, the Elbe Convention thus mainly aims at creating an international body that can deal with the challenges of managing the international watercourse. Article 1 (1) Elbe Convention explicitly provides for the conclusion of action programmes by the Commission that shall target the most important problems through technical means such as limiting or prohibiting discharges. It is therefore mainly through the Commission that the parties to the Elbe Convention fulfil their duties to cooperate with and to notify each other. In comparison to the model regulative framework in the Watercourses Convention, the Elbe Convention gives the parties much more leeway to agree on specific targets and organise their collaboration within the Commission. The creation of this international body to institutionalise cooperation is, after all, the central objective of the Convention. It thus becomes obvious that cooperation between riparian States can take various forms, and that contracting parties may prefer the establishment of an international administrative body to a regime with detailed notification and consultation procedures such as the one suggested by the Watercourses Convention. The material aims of protecting the river are set out only in Article 1 (2) Elbe Convention, formulating very general goals: to enable the sustainable uses such as the production of drinking water from the river, the creation of an ecosystem as natural as possible with a sound biodiversity, and the reduction of pollution of the North Sea resulting from the Elbe catchment area. In comparison to that, the provisions on the functioning of the Commission and its tasks regarding the formulation of quality goals and recommendations for technical measures (Article 2 Elbe Convention) are spelled out more clearly. Since the Elbe Convention represented the first international agreement focussing on the river as such, the catalogue of possible measures was also significantly more detailed than the corresponding provisions in the Rhine agreement, which inspired the Elbe Convention.42 The Elbe Convention applies, according to Article 1 (1) Elbe Convention, to the entire catchment area of the river. Even if the biggest part of the catchment area is 41

Paul-Martin Schulz, Die Gründung der Internationalen Kommission zum Schutz der Elbe (IKSE), Natur und Recht 15 (1993), 481. 42

Ibid., 484.

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found in Germany and in the Czech Republic, margins of the catchment area are found in Austria and Poland, which are however not contracting parties to the Elbe Treaty.

D. The Oder

The Convention on the International Commission for the Protection of the Oder (Oder Convention)43 was adopted in 1996 and entered into force in 1999. The contracting States are Germany, Poland, the Czech Republic, and the European Community. As the Convention’s name suggests, the agreement heavily focuses on pollution protection and is in its central aims thus even narrower than the Watercourses Convention. On the other hand, the wording of the agreement does by no means oppose cooperation between the contracting States in other matters than merely pollution prevention, and it is submitted that the International Commission for the Protection of the Oder may be a convenient forum to discuss other questions of the non-navigational use of the river. The Oder Convention is one more example of a treaty establishing an international commission meant to facilitate cooperation between the riparian States, only setting out very general goals, such as the reduction of the pollution of the Oder, the creation of the most natural ecosystems possible, and to enable the sustainable use of the river’s resources. Again, most of the provisions of the Convention deal with the functioning and the decision-making processes within the Oder Commission. The structure of the Oder Convention is very similar to that of the Elbe Convention, having been negotiated in the immediate aftermath of the Elbe Convention.44 The two Commissions have to a large extent the same tasks and are subject to the same procedural rules for decision-making and reporting.

E. The Meuse

Germany is not a direct riparian State of the Meuse, but it is part of the river’s catchment area, some of its tributaries being in Germany. Germany is thus a contract43 Convention on the International Commission for the Protection of the Oder against Pollution, 11 April 1996, EU OJ 1999 L100, 21. 44

Schulz (note 41), 485.

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ing party to the Convention on the International Commission of the Meuse (Meuse Convention),45 which was adopted in 2002 and entered into force in 2006. The agreement replaced the earlier agreement of Charleville-Mézières on the Protection of the Meuse,46 which Germany had not been a party to. The negotiation of the 2002 Convention became necessary in order to implement the WFD’s requirements in managing the river47 which also entailed the administration of the watercourse according to its hydrographic basin. The Meuse Convention refers to the WFD and its implementation as a main objective of the agreement in other respects as well. One of the aims explicitly mentioned in the Convention is the creation of a management plan for the international catchment area of the Meuse, the international, superordinate part of which was accomplished in 2009.48 Notwithstanding the focus on the implementation of the WFD, the Convention also aims at the prevention and management of floods and the prevention of accidental pollution, which are not core subjects of the WFD. Therefore, the Meuse Convention does not only go beyond the framework of the Watercourses Convention, but even beyond the scope of regulation of the WFD. In comparison to the Elbe and Oder Conventions, the Meuse Convention contains more detailed and more concrete goals, frequently referring to the aims of the WFD. Still, its focus is on managing the administration of the river through the establishment of the Meuse Commission and the creation of rules regarding its functioning and decision-making process.

F. The Mosel and the Saar

The International Commissions for the Protection of the Mosel and the Saar started out in 1961 with two trilateral agreements between France, Germany, and 45

Convention on the International Commission of the Meuse, 3 December 2002, available at: http://www.meuse-maas.be/files/files/FR1.pdf (in French) (accessed on 18 March 2015). 46

Agreement on the Protection of the Meuse, 26 April 1994, ILM 34 (1995), 851.

47

Daillier (note 23), 228.

48

International Meuse Commission, Bewirtschaftungsplan der internationalen Flussgebietseinheit der Maas, 22 December 2009, available at: http://www.cipm-icbm.be/files/files/PLANS/pfpg_public_ d_22_12_2009.pdf (accessed on 18 March 2015).

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Luxembourg, in which Commissions for the Protection of the Mosel and the Saar, respectively, were created.49 The Commissions are thus among the first examples of institutionalised cooperation between riparian States in Europe after World War II. According to the wording of the Agreements, the Commissions only have rights of recommendation regarding the prevention of pollution. The language of the 1961 Agreements does not suggest very far-reaching competences, but it is still on these Agreements that the work of the Commissions is based. Again, there is a strong focus on pollution, whereas the Watercourses Convention has broader objectives with a tendency to focus on water quantity rather than water quality. There is a subsequent treaty of 1987 between the contracting States, containing technical provisions, but it only concerns the system of flood alarms in the rivers’ catchment areas. Since the coming into force of the WFD, the Commissions have taken on the task to implement the Directive for the two rivers. Notwithstanding the difference in goals that can be deduced from a comparison of the Mosel and Saar Agreements with the principles set out in the Watercourses Convention, and the rather restricted purpose of the 1961 Agreements, it can hardly be claimed that the Watercourses Convention would require Germany and the other riparian States to cooperate beyond these Agreements. The Watercourses Convention does not oppose very specific agreements, and the focus on pollution prevention certainly does not contradict the general principles of the 1997 instrument. The obvious unanimity among the contracting States of the 1961 Agreements to maintain their cooperation on this level, enhanced by the provisions of the WFD, illustrates the limits of the Watercourses Convention where there is no political will – or necessity – to regulate matters in a more ambitious way.

49 Protocol on the Establishment of an International Commission for the Protection of the Mosel against Pollution, 20 December 1961, Germany-France, available at: http://www.iksms-cipms.org/ servlet/is/399/Moselprotokoll_d.pdf?command=downloadContent&filename=Moselprotokoll_d.pdf (in German) (accessed on 18 March 2015); Protocol on the Establishment of an International Commission for the Protection of the Saar against Pollution, 20 December 1961, Germany-France, available at: http://www.iksms-cipms.org/servlet/is/399/Saarprotokoll%20_d.pdf?command=downloadContent& filename=Saarprotokoll%20_d.pdf (in German) (accessed on 18 March 2015).

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III. Conclusion Scarcity of water, the fair distribution of resources, and the prevention and the management of floods and droughts are certainly problems for which there must first and foremost be regional solutions, even if water management in general must be termed a global problem. The Watercourses Convention, with the ambition of presenting a global framework for the management and sustainable use of international watercourses, tries to present a wide set of rules that can be adopted or changed according to the needs of the riparian States in question. An emphasis on the fostering of cooperation between States that share resources and the suggestion of model rules of procedure is certainly a promising way to develop international water law. The Convention can be criticised as an agreement that does not develop public international law to the extent in which it would be desirable, but a brief analysis of the international agreements to which a country such as Germany is a party already reveals the vast variety of problems that even one State, of rather limited size and in a stable climatic environment, can face. Concerns such as the danger of inundations or the threat of pollution differ from river to river, or are at least of varying importance. The difference between the provisions of the river treaties to which Germany is a party are certainly partly due to the times in which they were negotiated and the growing influence of the superimposing EU law over time. The WFD clearly encourages the establishment of administrative structures coordinated at the international level for river basin management,50 but still, most of the international commissions in the watercourse agreements to which Germany is a party have already been created before the WFD took effect. Notwithstanding many similarities in the watercourse agreements that have been discussed here, the conventions represent different ways of tackling international cooperation even if they generally favour procedural rules and the establishment of international administrative bodies over fixed technical or administrative rules. Even if the agreements are after all meant to operate in the legislative framework the Watercourses Convention bears witness of, and aim at filling the leeway created by general principles, the watercourse agreements are still based on the same functional guide-

50

Rieu-Clarke (note 13), 405.

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lines, fostering procedural rules to organise cooperation, rather than setting out desirable results of cooperation. It is true that the German treaty practice may not be representative for other parts of the planet, and that other agreements between riparian States may be very concrete in their setting and goals, e.g. when regulating a given infrastructure project. Still, for an ongoing dialogue between riparian States even in the face of changing climatic circumstances or urban or rural development, agreements with strong procedural rules may be a very good solution and the Watercourses Convention thus a very valuable guideline. It is certainly true that the Convention can only take effect among contracting States where there is the political will to let it do so, and that it can neither trigger nor replace this prerequisite.51 It must however be kept in mind that the alternative to a legislative framework such as the Watercourses Convention may very well be unilateral action by States, without due regard for the interests of their neighbours,52 whereas the Convention at least spells out the general principles of international water law, with detailed procedural rules to achieve cooperation. The Convention represents a development of international law on the non-navigational use of international watercourses that will be valuable within and without53 the circle of contracting States.

51

Tanzi (note 18), 468.

52

Wouters (note 7), 336.

53

Rocha Loures et al. (note 5), 64.

The German Federal Constitutional Court’s First Reference for a Preliminary Ruling to the European Court of Justice BERENIKE SCHRIEWER(

The year 2014 premiered the German Federal Constitutional Court’s (FCC) reference for a preliminary ruling to the European Court of Justice (ECJ) on 14 January,1 over half a century after this procedure was created.2 It deals with issues of great importance for Germany and the European Union(EU) – notably questions related to the Outright Monetary Transactions (OMT) programme of the European Central Bank (ECB).3 After the reference was published on 7 February 2014, the German media stated that the underlying case “had created legal history.”4 According to a commentator, the FCC “seems to have the power to unsettle the world economy,”5 although in this case the publication of the decision had calmed the markets.6 (

Attorney in Frankfurt. The article only reflects the author’s personal views.

1

Federal Constitutional Court (FCC, Bundesverfassungsgericht), 2 BvR 2728/13, 2 BvR 2729/13, 2 BvR 2730/13, 2 BvR 2731/13, 2 BvE 13/13 of 14 January 2014, Neue Juristische Wochenschrift (NJW) 2014, 907, English translation available at: https://www.bundesverfassungsgericht.de/ SharedDocs/Entscheidungen/EN/2014/01/rs20140114_2bvr272813en.html (accessed on 24 March 2015) (Referral Decision). 2 See Art. 177 Treaty establishing the European Economic Community, 25 March 1957, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:xy0023 (accessed on 24 March 2015). 3

For an explanation of the OMT programme, see infra, I.C.3.

4

Der Spiegel, Europe or Democracy? What German Court Ruling Means for the Euro, 10 February 2014, available at: http://www.spiegel.de/international/europe/german-court-calls-ecb-bond-buyinginto-question-a-952556.html (accessed on 24 March 2015). 5 Franz C. Mayer, Rebels Without a Cause? A Critical Analysis of the German Constitutional Court’s OMT Reference, German Law Journal (GLJ) 15 (2) (2014), 111, 134. 6 The Economist, The German Courts and the ECB: It Isn’t Over, 15 February 2014, available at: http://www.economist.com/news/finance-and-economics/21596570-european-monetary-policy-hasnot-been-given-reprieve-markets-believe-it-isnt (accessed on 24 March 2015).

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Yet what is in question in these proceedings? On 26 July 2012, in the midst of a dire situation for the euro where the ECB’s monetary policy was not showing the intended results, its President Mario Draghi declared: “Within our mandate, the ECB is ready to do whatever it takes to preserve the euro.”7 This might have saved the European currency.8 Shortly afterwards, Spain’s and Italy’s sovereign bonds yields fell significantly which showed a strong improvement in the monetary policy transmission,9 i.e. in “the process through which monetary policy decisions affect the economy in general and the price level in particular.”10 Newspaper reports – and the markets – clearly had focused on the “whatever it takes” part of Draghi’s statement.11 A few weeks after this speech, the ECB announced its Decision of the Governing Council of the European Central Bank on Technical Features of Outright Monetary Transactions of 6 September 2012 (OMT Decision).12 The FCC’s reference primarily examines the question whether the ECB was in fact acting within its mandate in its effort to save the euro – or whether the OMT Decision (at least in the eyes of the FCC) constitutes an act ultra vires.

7 European Central Bank (ECB), Verbatim of the remarks made by Mario Draghi, Speech by Mario Draghi, President of the European Central Bank at the Global Investment Conference in London, 26 July 2012, available at: http://www.ecb.europa.eu/press/key/date/2012/html/sp120726.en.html (accessed on 24 March 2015). 8 Jürgen Bast, Don’t Act Beyond Your Powers: The Perils and Pitfalls of the German Constitutional Court’s Ultra Vires Review, GLJ 15 (2) (2014), 167. 9

Guntram B. Wolff, The ECB’s OMT Programme and German Constitutional Concerns, in: Think Tank 20: The G-20 and Central Banks in the New World of Unconventional Monetary Policy, 29 August 2013, 27, available at: http://www.brookings.edu/~/media/research/files/reports/2013/08/ g20%20central%20banks%20monetary%20policy/tt20%20central%20banks%20monetary%20policy %202.pdf (accessed on 24 March 2014). 10 ECB, Transmission mechanism of monetary policy, available at: https://www.ecb.europa.eu/ mopo/intro/transmission/html/index.en.html (accessed on 24 March 2015). 11

See, e.g., David Milliken/Marius Zaharia, Draghi sends strong signal that ECB will act, 26 July 2012, available at: http://www.reuters.com/article/2012/07/26/us-eurozone-ecb-draghi-idUSBRE86P0HM 20120726 (accessed on 24 March 2015). 12 ECB, Press Release of 6 September 2012: Technical features of Outright Monetary Transactions, available at: http://www.ecb.europa.eu/press/pr/date/2012/html/pr120906_1.en.html (accessed on 24 March 2015).

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I. General Part A. Relationship between the FCC and the ECJ

The FCC’s intricate relationship with the ECJ features jurisprudence friendly and skeptical towards European law. This complexity inter alia expresses itself in the wellknown Solange I13 and Solange II14 orders and the Maastricht15 judgment of the FCC.16 The equally key Lissabon17 judgment first mentioned a principle of friendliness towards European law (“Grundsatz der Europarechtsfreundlichkeit”)18 – and reaffirmed the Court’s intention to perform an ultra vires review of EU acts, if necessary.19 It stated that such a review applies where Community and Union institutions transgress the boundaries of their competences. If legal protection cannot be obtained at the Union level, the Federal Constitutional Court examines whether legal instruments of the European institutions and bodies keep within the boundaries of the sovereign powers accorded to them by way of conferral […].20

The details of such a review were further explained in the Honeywell order: The breach of competences has to be “sufficiently qualified,” which is the case if the impugned act is “manifestly in breach of competences” and leads “to a structurally significant shift to the detriment of the Member States in the structure of competences.”21 Before 13

FCC, BVerfGE 37, 271.

14

Id., BVerfGE 73, 339.

15

Id., BVerfGE 89, 155.

16

For an overview see Franz C. Mayer, Europarechtsfreundlichkeit und Europarechtsskepsis in der Rechtsprechung des Bundesverfassungsgerichts, in: Thomas Giegerich (ed.), Der ‘offene Verfassungsstaat’ des Grundgesetzes nach 60 Jahren (2010), 237. See also Susanne K. Schmidt, A Sense of Déjà Vu? The FCC’s Preliminary European Stability Mechanism Verdict, GLJ 14 (1) (2013), 5. 17 FCC, BVerfGE 123, 267, English translation available at: http://www.bverfg.de/entscheidungen/ es20090630_2bve000208en.html (accessed on 24 March 2015). 18

Ibid., Headnote 4, paras. 225, 240.

19

This possibility had already been mentioned in the Maastricht judgment, see FCC, BVerfGE 89, 155, 188. 20 21

FCC, BVerfGE 123, 267 (note 17), para. 240.

Id., BVerfGE 126, 286, Headnote 1 a), English translation available at: https://www. bundesverfassungsgericht.de/entscheidungen/rs20100706_2bvr266106en.html (accessed on 24 March 2015).

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the FCC assumes an ultra vires act, the ECJ needs to have the opportunity to interpret the treaties in the context of preliminary ruling proceedings (Article 267 Treaty on the Functioning of the European Union (TFEU)),22 if it has not yet clarified the relevant questions.23

B. The European Central Bank

1. The European Central Bank and the Bundesbank The ECB which is situated in Frankfurt was founded on 1 June 1998. Its biggest shareholder, the German National Bank (Bundesbank) – with a capital key of almost 18%24 – also has its headquarters in Frankfurt. Established in 1957, the Bundesbank was the world’s first fully independent bank.25 Despite their geographical proximity, the two heavyweights reportedly have a complicated relationship.26

2. The European Central Bank’s Mandate As the ECB’s two main features – the objective of maintaining price stability and its independence – show, it was constructed in alignment with “the tradition of the

22 Treaty on the Functioning of the European Union, 26 October 2012, OJ 2012 C 326, 47 (consolidated version 2012). 23

FCC, BverfGE 126, 286 (note 21), Headnote 1 b).

24

See ECB, Capital subscription, available at: https://www.ecb.europa.eu/ecb/orga/capital/html/ index.en.html (accessed on 24 March 2015). 25 See Christopher Alessi, Germany’s Central Bank and the Eurozone, 7 February 2013, available at: http://www.cfr.org/world/germanys-central-bank-eurozone/p29934 (accessed on 24 March 2015). See also Sec. 12 Bundesbank Act (Gesetz über die Deutsche Bundesbank), 26 July 1957, Bundesgesetzblatt (BGBl.) I, 745, as amended on 4 July 2013, BGBl. I, 1981. 26

See, e.g., Noah Barkin/Eva Taylor/Paul Taylor, Mario Draghi’s German problem, 23 October 2014, available at: http://www.reuters.com/article/2014/10/23/us-ecb-germany-insight-idUSKCN0I C1TJ20141023 (accessed on 24 March 2015): “[Mario Draghi’s] relationship with his most important stakeholder – the Germans – is fraying […]. This tension is most obvious in the relationship between Draghi and Bundesbank President Jens Weidmann, which […] has almost broken down”.

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German model of central banking.”27 This design, alongside with Article 125 TFEU (the ‘no-bailout clause’) and the Maastricht criteria, helped to overcome German resistance to a delegation of responsibility for monetary policy.28 Together with the national central banks (including the Bundesbank), the ECB forms the European System of Central Banks (ESCB) whose primary objective is to maintain price stability (Article 127 (1) cl. 1 and Article 282 (2) cl. 2 TFEU, Article 2 (1) cl. 1 Protocol on the Statute of the European System of Central Banks and of the European Central Bank (ESCB Statute)).29 Throughout its existence, the ECB has been successful in pursuing this objective.30 According to Article 282 (2) cl. 3 TFEU and Article 2 (1) cl. 2 ESCB Statute, the ESCB shall – without prejudice to this objective – support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union (Article 3 Treaty of the European Union (TEU)).31 Pursuant to Article 127 (2) TFEU and Article 3 (2) ESCB Statute, one of the ESCB’s basic tasks is “to define and implement the monetary policy of the Union.” The ECB has the exclusive right to authorise the issue of euro banknotes within the Union (Article 128 (1) cl. 1 TFEU). Its independence is enshrined in Articles 130 and 282 (3) cl. 3 and 4 TFEU and Article 7 ESCB Statute.

C. The European Sovereign Debt Crisis and Intended Solutions (European Stability Mechanism and the OMT programme)

1. The European Sovereign Debt Crisis The European sovereign debt crisis, which started in 2009/2010 with the immense fiscal problems of Greece (followed by the revelation that other European countries 27

Carsten Gerner-Beuerle/Esin Küçük/Edmund Schuster, Law Meets Economics in the German Federal Constitutional Court: Outright Monetary Transactions on Trial, GLJ 15 (2) (2014), 281, 295. 28

Schmidt (note 16). See also Gerner-Beuerle/Küçük/Schuster (note 27), 296.

29

Protocol on the Statute of the European System of Central Banks and of the European Central Bank, 26 October 2012, OJ 2012 C 326, 201. 30

Gerner-Beuerle/Küçük/Schuster (note 27), 296.

31

Treaty of the European Union, 26 October 2012, OJ 2012 C 326, 13.

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such as Spain and Italy had a more unfavourable deficit/gross domestic product ratio than expected),32 has been dominating European policy for the last years. It led to rising spreads in sovereign bonds and eventually Greece (May 2010), Ireland (November 2010), and Portugal (April 2011) were shut out of the bonds market.33 They were ‘bailed-out’ (i.e. received funding) through joint EU/International Monetary Fund (IMF) programmes under certain conditions, including the implementation of fiscal austerity and structural reforms intended to stimulate growth.34 In June 2012, Cyprus and Spain requested (and received) help as well.35

2. The European Stability Mechanism To help combat the problems of the European sovereign debt crisis, inter alia the temporary European Financial Stability Facility (EFSF) and the European Stability Mechanism (ESM) were devised:36 The EFSF, a special purpose vehicle not based in EU law,37 was created in 2010 and mandated to “safeguard financial stability in Europe by raising funds in capital markets to finance loans for the euro member states.”38 Unlike the EFSF, the ESM is designed as a permanent institution, which made its creation more controversial.39 Its authorised capital stock exceeds € 700 billion, divided into paid-in and callable shares.40 The ESM’s initial maximum lending volume

32 Philip R. Lane, The European Sovereign Debt Crisis, Journal of Economic Perspectives 26 (2012), 49, 56. 33

Ibid., 56 and 57.

34

Ibid., 57.

35

Ibid.

36

Ledina Gocaj/Sophie Meunier, Time Will Tell: The EFSF, the ESM, and the Euro Crisis, European Integration 35 (2013), 239. 37 Vestert Borger, The ESM and the European Court’s Predicament in Pringle, GLJ 14 (1) (2013), 113, 114. 38

Gocaj/Meunier (note 36), 245.

39

Ibid., 239, 248.

40

Art. 8 (1), (2) Treaty Establishing the European Stability Mechanism, 2 February 2012, EU Doc. T/ESM 2012/en (ESM Treaty).

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of € 500 billion41 has been attained.42 However, according to critics, the ESM – just like the EFSF – is not sufficiently big enough to prevent a “crisis of confidence.”43 Particularly due to German constitutional complaints against the Treaty establishing the European Stability Mechanism (ESM Treaty), it entered into force later than anticipated.44 On 12 September 2012, the FCC – under a proviso – refused to grant temporary injunctions to prevent the ratification of the ESM Treaty.45 In its decision, it highlighted that: it follows from the democratic basis of budget autonomy that the Bundestag may not consent to an intergovernmentally or supranationally agreed automatic guarantee or performance which is not subject to strict requirements and whose effects are not limited, and which […] is removed from the Bundestag’s control and influence.46

To comply with the FCC’s proviso, the signatory States made a joint interpretative declaration47 and the ESM Treaty entered into force on 27 September 2012 after Germany’s ratification.48

41

Recital 6 ESM Treaty.

42

A regularly updated overview of the ESM’s most important figures is available at: http://www. bundesfinanzministerium.de/Content/EN/Standardartikel/Topics/Europe/Articles/Stabilising_the _euro/Figures_Facts/european-financial-assistance-esm.html (accessed on 24 March 2015). 43

Gerner-Beuerle/Küçük/Schuster (note 27), 290.

44

Borger (note 37), 116.

45

FCC, 2 BvR 1390/12, 2 BvR 1421/12, 2 BvR 1438/12, 2 BvR 1439/12, 2 BvR 1440/12, 2 BvR 1824/12, 2 BvE 6/12 of 18 March 2014, NJW 2014, 1505, English translation available at: http://www. bverfg.de/entscheidungen/rs20120912_2bvr139012en.html (accessed on 24 March 2015) (Temporary Injunction Decision). See also Schmidt (note 16), 11. 46

FCC, Temporary Injunction Decision (note 45), para. 213. The details of the Bundestag’s participation are regulated in the Act for Financial Participation in the European Stability Mechanism (Gesetz zur finanziellen Beteiligung am Europäischen Stabilitätsmechanismus), 13 September 2012, BGBl. I, 1918. 47

Declaration on the European Stability Mechanism, 27 September 2012, available at: http://www. consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ecofin/132615.pdf (accessed on 24 March 2015). 48 European Parliament, Table on the ratification process of amendment of Art. 136 TFEU, ESM Treaty and the Fiscal Compact, available at: http://www.europarl.europa.eu/webnp/cms/pid/1833 (accessed on 24 March 2015).

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3. The European Central Bank’s Controversial Decision of 6 September 2012 On 6 September 2012, the OMT Decision was announced by means of a press release.49 Before, “[n]ominal interest rates had hugely diverged, banks’ access to finance was severely hampered, and the eurozone’s financial system was deeply fragmented.”50 However, the ECB’s announcement alone was enough to calm down the markets.51 In its press release, the ECB inter alia mentioned the following features of this programme: Conditionality: A necessary condition for Outright Monetary Transactions is strict and effective conditionality attached to an appropriate European Financial Stability Facility/European Stability Mechanism (EFSF/ESM) programme. […] The Governing Council will consider Outright Monetary Transactions to the extent that they are warranted from a monetary policy perspective as long as programme conditionality is fully respected, […] the Governing Council will decide on the start, continuation and suspension of Outright Monetary Transactions in full discretion and acting in accordance with its monetary policy mandate. Coverage: Outright Monetary Transactions will be considered for future cases of EFSF/ESM macroeconomic adjustment programmes or precautionary programmes as specified above. […] Transactions will be focused on the shorter part of the yield curve, and in particular on sovereign bonds with a maturity of between one and three years. No ex ante quantitative limits are set on the size of Outright Monetary Transactions. Creditor treatment: The Eurosystem intends to clarify in the legal act concerning Outright Monetary Transactions that it accepts the same (pari passu) treatment as private or other creditors with respect to bonds issued by euro area countries and purchased by the Eurosystem through Outright Monetary Transactions, in accordance with the terms of such bonds.52

While the OMT programme pursues the same goal as the ESM (ensuring the liquidity of euro countries in needs), the Bundestag has no control over it.53 It has thus been remarked that

49

ECB, Press Release of 6 September 2012 (note 12).

50

Wolff (note 9), 27.

51

Mayer (note 5), 113.

52

ECB, Press Release of 6 September 2012 (note 12).

53

Mayer (note 5), 113.

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one can imagine that the German FCC was not amused to find out that […] the ECB had basically sidelined the sophisticated construct of extensive Bundestag rights the Court had invented to protect the German tax payer from harm. Even worse, ECB action is subject neither to national FCC review nor to national parliamentary approval.54

II. The FCC’s Decision of 14 January 2014 A. Facts of the Case Before the FCC

The FCC was faced with four constitutional complaints55 – one of which was initiated by parliamentarian Dr. Gauweiler, another one by 11,683 complainants – and an action initiated by the left parliamentary group “Die Linke” against the Bundestag (Organstreitverfahren).56 The Bundestag joined all proceedings; as did the federal government which joined the Organstreitverfahren on the side of the Bundestag. According to the FCC’s assessment, the complainants and the applicant challenge (1) the participation of the Bundesbank in the implementation of the OMT Decision and (2) the failure of the German federal government and the Bundestag to act regarding this Decision.57 The FCC summarises their main arguments as follows: the OMT Decision is an ultra vires act and it violates the prohibition of monetary financing contained in Article 123 TFEU and the independence of the ECB.58 Purchasing bonds is only permitted within the framework of monetary policy; however, such policy must affect the entire euro currency area and not only individual Member States.59 Linking OMT purchases to EFSF or ESM decisions is incompatible with the ECB’s independence.60 The OMT Decision violates the EU Treaties by suspending 54

Ibid., 114.

55

Art. 93 (1) No. 4a) Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1, as amended on 23 December 2014, BGBl. I, 2438; Secs. 13 No. 8 lit. a), 90 et seq. Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), 12 March 1951, BGBl. I, 243, as amended on 16 July 1998, BGBl. I, 1823 (FCCA). 56

Art. 93 (1) No. 1 Basic Law, Secs. 13 No. 5, 63 et seq. FCCA.

57

FCC, Referral Decision (note 1), para. 1.

58

Ibid., para. 5.

59

Ibid.

60

Ibid.

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market mechanisms and inter alia amounts to a violation of the right to democracy – Article 20 (1) and (2) Basic Law – because it can create liability and payment risks which might impair the overall budgetary responsibility and therefore the budgetary rights of the Bundestag.61 The ECB submitted a statement arguing that the OMT Decision is covered by its mandate and in alignment with the prohibition of monetary financing.62 According to the ECB, its monetary policy is no longer appropriately implemented because of a disruption of the monetary policy transmission mechanism.63 It also stated that the OMT Decision can be based on Article 18 (1) ESCB Statute.64 The Bundesbank argued that the alleged disruption to the monetary policy mechanism does not justify the OMT Decision.65 It also pointed out that every loss would burden the national federal budget so that the risks ensuing from the intended bond purchase are comparable to those from the ESM but without parliamentary monitoring.66

B. Outcome of the Proceedings: Questions Referred to the ECJ for a Preliminary Ruling

Pursuant to Article 19 (3)(b) TEU and Article 267 (1)(a) and (b) TFEU, the FCC suspended the proceedings and referred the following questions to the ECJ for a preliminary ruling:67 Question 1. a): Is the Decision of the Governing Council of the European Central Bank of 6 September 2012 on Technical Features of Outright Monetary Transactions incompatible with Article 119 and Article 127 sections 1 and 2 of the Treaty on the Functioning of the Euro61

Ibid.

62

Ibid., para. 7.

63

Ibid.

64

Ibid., para. 11.

65

Ibid., para. 13.

66

Ibid., para. 15.

67

Ibid.

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pean Union, and with Articles 17 to 24 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, because it exceeds the European Central Bank’s monetary policy mandate, which is regulated in the above-mentioned provisions, and infringes the powers of the Member States?68

The FCC asked in particular whether the OMT Decision transgresses the ECB’s mandate on grounds of aa) conditionality, bb) selectivity, cc) parallelism, and dd) bypassing since the OMT Decision only considers the purchase of the bonds of specific Member States (selectivity), is linked to the assistance programmes of the EFSF/ESM (conditionality), operates in addition to them (parallelism), and might undermine their terms and conditions.69 Question 1. b): The FCC asked whether the OMT Decision is incompatible with the prohibition of monetary financing (Article 123 TFEU), in particular on the basis of aa) volume, bb) market pricing, cc) interference with market logic, dd) default risk, and ee) debt cut.70 These questions refer to the lack of quantitative purchasing limits (volume), of a certain time lag between emission of government bonds on the primary and their purchase on the secondary market (market pricing), and of requirements for the credit rating of the bonds to be purchased (default risk) as well as to the possibility to hold all purchased bonds to maturity (interference with market logic) and to the equal treatment of the ESCB and private as well as other government bondholders (debt cut).71 The FCC followed this up with another set of questions in case the ECJ did not consider the OMT Decision to be an act of an institution of the EU which would be a prerequisite for a referral according to Article 267 (1)(b) TFEU): It asked whether: 2. a) Articles 119 and 127 TFEU and Articles 17–24 ESCB Statute are to be interpreted to allow the eurosystem to purchase government bonds in a conditional, selective, parallel, and bypassing manner,72 and whether:

68

Ibid., para. II.

69

Ibid.

70

Ibid.

71

Ibid.

72

Ibid.

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2. b) Article 123 TFEU is to be interpreted to allow the eurosystem to purchase bonds without aa) quantitative limits, bb) a minimum time lag after the emission on the primary market, and dd) without minimum credit rating requirement, to cc) hold these to maturity, to ee) accept equal treatment, and to ff) give encouragement to purchase newly issued security by communicating the intention to buy and thereby influencing pricing.73

C. Reasoning of the FCC

The majority of the FCC (Justice Lübbe-Wolff and Justice Gerhardt dissenting) held that the OMT Decision is likely incompatible with (1) Articles 119 and 127 (1) and (2) TFEU and Articles 17 et seq. ESCB Statute and (2) the prohibition of monetary financing of the budget (Article 123 TFEU).74 It also stated that (3) the ECB’s reasoning about a disruption of the monetary policy transmission mechanism likely does not change these points but that (4) a different assessment was possible if the OMT Decision could be interpreted in conformity with primary law.75 With regard to (1), the FCC stated that for constitutional reasons the ECB’s independence is constricted to a “primarily stability-oriented monetary policy and cannot be transferred to other areas.”76 This independence does not preclude judicial review of the extent of its mandate; otherwise the ECB could independently decide about the extent of powers assigned to it.77 The field of monetary policy – for which the EU has exclusive responsibility – has to be distinguished from economic policy, which primarily falls in the responsibility of the Member States.78 Relying on the Pringle case,79 it stated that “purchases of government bonds may not qualify as acts of 73

Ibid.

74

Ibid., para. 55.

75

Ibid.

76

Ibid., para. 59.

77

Ibid., para. 60.

78

Ibid., paras. 61–63.

79

Ibid., paras. 63–66. In this case, the ECJ had explained that the ESM’s objective (safeguarding the stability of the entire eurozone) “is clearly distinct from the objective of maintaining price stability, which is the primary objective of the Union’s monetary policy. Even though the stability of the euro area may have repercussions on the stability of the currency used within that area, an economic policy measure

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monetary policy for the sole reason that they also indirectly pursue monetary policy objectives.”80 Furthermore, to the extent that the ESCB “grants financial assistance, it pursues an economic policy that the European Union is prohibited from conducting.”81 The FCC concludes that the OMT Decision is likely not covered by the ECB’s mandate because it primarily constitutes an economic policy act82 and that this assessment is supported by its immediate objective, its selectivity, the parallelism with assistance programmes of the European Financial Stability Facility or the European Stability Mechanism, and the risk of undermining their objectives and requirements. Therefore, it is likely that the OMT Decision can also not be justified as an act to support the Union’s economic policy.83

Furthermore, the Court remarked that OMT purchases appear “as the functional equivalent to an assistance measure of [the EFSF and the ESM] – albeit without their parliamentary legitimation and monitoring.”84 Concerning (2), the FCC stated that the OMT Decision likely violates the prohibition of monetary financing on the budget (Article 123 TFEU and Article 21 (1) ESCB Statute) which includes a prohibition of bypassing.85 The Court explained that the following aspects indicate a circumvention of Article 123 TFEU: – neutralisation of interest rate spreads, – selectivity, – parallelism with EFSF/ESM assistance programmes, – willingness to participate in a debt cut regarding the purchased bonds, – increased risk of a debt cut, cannot be treated as equivalent to a monetary policy measure for the sole reason that it may have indirect effects on the stability of the euro.” The ECJ also stated that “[t]he grant of financial assistance to a Member State however clearly does not fall within monetary policy,” ECJ, Case C-370/12, Thomas Pringle v. Government of Ireland, Ireland, The Attorney General, 27 November 2012, paras. 56–57. 80

FCC, Referral Decision (note 1), para. 64.

81

Ibid., para. 65.

82

Ibid.

83

Ibid., para. 69 (references omitted).

84

Ibid., para. 79.

85

Ibid., paras. 85 et seq.

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– option to hold purchased bonds to maturity, – interference with market pricing, and – the encouragement of market participants to purchase newly issued securities.86 The FCC rejected the ECB’s arguments relating to a disruption in the monetary policy transmission mechanism (3).87 Making reference to the Pringle judgment, the Court remarked that “[t]he fact that the purchase of government bonds can, under certain conditions, help to support the monetary policy objectives of the European System of Central Banks does not turn the OMT Decision itself into an act of monetary policy.”88 The FCC also stated that if the purchase of government bonds was admissible whenever there was a disruption to the monetary policy transmission mechanism, the ECB would have the power to respond to every deterioration of a State’s credit rating by purchasing bonds since almost every debt crisis is accompanied by corresponding problems with the monetary transmission mechanism – which “would suspend the prohibition of monetary financing on the budget.”89 Regarding (4), the FCC explained that the concerns mentioned in its decision “could be met by an interpretation in conformity with Union law. This would require that the content of the OMT Decision, when comprehensively assessed and evaluated, essentially complies with the above-mentioned conditions.”90 Concretely, the OMT Decision would have to be interpreted or limited in its validity in such a way that it would not undermine the conditionality of the assistance programmes of the European Financial Stability Facility and the European Stability Mechanism, and would only be of a supportive nature with regard to the economic policies in the Union. This requires, in light of Art. 123 TFEU, that the possibility of a debt cut must be excluded, that government bonds of selected Member States are not purchased up to unlimited amounts, and that interferences with price formation on the market are to be avoided where possible.91

86

Ibid.

87

Ibid., para. 95.

88

Ibid., para. 96.

89

Ibid., para. 97.

90

Ibid., para. 99.

91

Ibid., para. 100 (references omitted).

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D. Dissenting Opinions

According to Justice Lübbe-Wolff, guidelines derived from the principles of democracy, separation of powers concept, and the rule of law “suggest inadmissibility of the present motions.”92 She also pointed out that “[b]y treating the motions as admissible […], the Senate declares itself competent and obliged to make a decision on the merits later”93 and criticised the low standards for admissibility of the “overburdened, reliefseeking Federal Constitutional Court […] in matters of European integration.”94 Finally, Lübbe-Wolff stated “[t]hat some few independent judges […] make a decision with incalculable consequences for the operating currency of the euro zone and the national economies depending on it appears as an anomaly of questionable democratic character.”95 Justice Gerhardt explained that he holds the complaints and the application to be inadmissible, insofar as they relate to the OMT Decision, since the outcome of the FCC’s decision is not dependent on the answers referred to the ECJ.96 According to him, whereas “it seems very likely that, due to its selectivity, [the OMT programme] can lead to an impermissible monetary financing of the budget,” the argument “that the objective of the OMT Decision is first and foremost the re-establishment of the monetary transmission mechanism, cannot be contradicted, at least not with the necessary unequivocalness.”97 Gerhardt also reasoned that the Bundestag’s lack of action against the approval of the OMT programme by the federal government itself constituted an exercise of its political will.98

92

Ibid., Dissenting Opinion Lübbe-Wolff, para. 11.

93

Ibid.

94

Ibid., para. 14.

95

Ibid., para. 18.

96

Ibid., Dissenting Opinion Gerhardt, para. 1.

97

Ibid., para. 17.

98

Ibid., para. 24.

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III. Evaluation The situation at hand is multi-faceted: Only at first sight does the fact that the FCC has finally referred a question to the ECJ give the impression of a decision that is very friendly towards European law. Upon further reading, it becomes clear that the FCC appears ready to act on its ultra vires reservation and to pronounce that there is “an obligation of German authorities to refrain from implementing [the OMT Decision] and a duty to challenge it.”99 This judgment got a mixed reception: The FCC’s conclusion that the OMT Decision is likely ultra vires, or, more precisely, a “manifest and structurally significant ultra vires act,”100 led a critic to raise the question why “the Court takes months and months to decide, […] the two senior judges dissent and […] the economics and central bank specialists are unable to find a consensus?”101 Others argued that, given the inherent uncertainty of monetary policy decisions, the wide margin of discretion generally awarded to the executive and legislative as well as their expertise in making assessments about the future and the eurozone-wide implications, the FCC should have applied a limited standard of review (i.e. a mere rationality check).102 While the FCC – as one commentator suggested – might have done Europe a favour by resisting the “culture of quick fixes” and pressing for a muchneeded dialogue on important questions,103 another argued that the FCC had used an “inappropriately high standard of judicial review.”104

99

Ibid., para. 44. For an actual application of the ultra vires standard by a national court see Czech Constitutional Court, Pl. ÚS 5/12: Slovak Pensions, Judgment of 31 January 2012, English translation available at: http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=37&cHash=911a315c9c 22ea1989d19a3a848724 (accessed on 15 June 2015). 100

FCC, Referral Decision (note 1), para. 33.

101

Mayer (note 5), 138.

102

See, e.g., Matthias Goldmann, Adjudicating Economics? Central Bank Independence and the Appropriate Standard of Judicial Review, GLJ 15 (2) (2014), 265, 268. 103 Ashoka Mody, Did the German court do Europe a favour?, Bruegel Working Paper 2014/09, 15 July 2014, 4, available at: http://www.bruegel.org/publications/publication-detail/publication/840did-the-german-court-do-europe-a-favour/ (accessed on 24 March 2015). 104

Goldmann (note 102), 268.

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As has been accurately noted, ‘scepticism towards European law’ is not necessarily problematic.105 However, the particular challenge the ECJ had to face with the FCC’s reference was that the reference already “set [...] out its terms for a compromise.”106 Advocate General Cruz Villalón addressed “the ‘functional’ difficulty”107 of the reference in his opinion delivered on 14 January 2015, i.e. the argument that “a national court should not be able to request a preliminary ruling from the Court of Justice if its request already includes, intrinsically or conceptually, the possibility that it will in fact depart from the answer received.”108 Stressing the importance of the principle of sincere cooperation between the two courts, he nonetheless proposed that the ECJ should answer the request for a preliminary ruling on the substance.109 Cruz Villalón also recommended rejecting objections to admissibility.110 Regarding the FCC’s questions, he proposed to answer that the OMT Programme is: (1) […] compatible with Article 119 TFEU and Article 127 (1) and (2) TFEU, provided that […] the ECB refrains from any direct involvement in the financial assistance programmes to which the OMT programme is linked, and complies strictly with the obligation to state reasons and with the requirements deriving from the principle of proportionality [and] (2) […] compatible with Article 123 (1) TFEU, provided that, in the event of the programme being implemented, the timing of the implementation is such as to permit the actual formation of a market price in respect of the government bonds.111

Whereas the ECJ tends to follow the recommendation of the General Advocate in the vast majority of cases, the case at hand is particularly sensitive. In this situation, 105 Uwe Kischel, Europarechtsfreundlichkeit oder Europarechtsskepsis, Unterwerfung oder Integration? Sprachliche Einkleidung und sachliche Probleme, in: Giegerich (ed.) (note 16), 285, who suggests that none of the sceptical points of view want to diminish the positive achievements of the European project and that the scepticism is not directed against the whole (Europe/European law) but against parts, e.g. against the reasonableness of specific aspects of it which – at least in the sceptic’s opinion – should not be part of European law. 106

The Economist (note 6). See also Mayer (note 5), 112: “The one thing it is not is a surrender, as some initial media comments suggested”. 107 ECJ, Case C-62/14, Peter Gauweiler and Others v. Deutscher Bundestag, Opinion of Advocate General Cruz Villalón, 14 January 2015, paras. 33 et seq. 108

Ibid., para. 36.

109

Ibid., paras. 64–69.

110

Ibid., para. 91.

111

Ibid., para. 263.

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observers identified three main options for the ECJ in reaction to the reference: deciding the preliminary questions in alignment with the FCC’s demands (which would have a negative impact on the OMT programme), declaring the reference to be inadmissible (which could have a negative impact on its relationship with the FCC), or finding some form of compromise in between these poles.112 On 16 June 2015, in its much-awaited judgment, the ECJ declared the FCC’s request for a preliminary ruling admissible.113 It stated that Articles 119 TFEU, 123(1) TFEU and 127(1) and (2) TFEU and Articles 17 to 24 of the Protocol on the ESCB and the ECB must be interpreted as permitting the ESCB to adopt a programme for the purchase of government bonds on secondary markets, such as the programme announced in the press release.114

How the FCC deals with this outcome in the underlying dispute remains to be seen. A number of comments (which were made after the FCC’s reference to the ECJ) suggest that the risk of an actual implementation of the OMT programme has always been very low. In May 2014, excerpts of a discussion from April 2014 with Germany’s Federal Minister of Finance Wolfgang Schäuble at Bielefeld University were published which offered insights about the likelihood of OMT purchases.115 Schäuble pointed out that OMT purchases were conditional on the State in question being subjected to an ESM programme and that ESM decisions require unanimous consent; consent which Germany would not give after the ECB’s announcement.116 He also said that he had alerted Mario Draghi to this upon the announcement of the OMT.117 Schäuble explained that the government had defended the OMT Decision before the FCC 112

Mayer (note 5), 122 et seq. See also Mattias Kumm, Rebels without a Good Cause: Karlsruhe’s Misguided Attempt to Draw the CJEU into a Game of “Chicken” and What the CJEU Might do About It, GLJ 15 (2) (2014), 203, 206 et seq. 113

ECJ, Case C-62/14, Peter Gauweiler and Others v. Deutscher Bundestag, Judgment of 16 June 2015, para. 31. 114

Ibid., para. 127.

115

See, e.g., Die Welt, Schäuble demontiert Bazooka der EZB, 24 May 2014, available at: http:// www.welt.de/print/die_welt/wirtschaft/article128361095/Schaeuble-demontiert-Bazooka-derEZB.html, and Frankfurter Allgemeine Zeitung (FAZ), Kassiert Schäuble die Wunderwaffe der EZB?, 24 May 2014, available at: http://www.faz.net/aktuell/wirtschaft/eurokrise/omt-schaeuble-kassiert-diewunderwaffe-der-ezb-12955803.html (both accessed on 24 March 2015). 116

FAZ (note 115).

117

Ibid.

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because it was only an announcement so far and the government had therefore not seen any reason to turn to the ECJ.118 Lastly, focusing exclusively on whether or not the reference is friendly towards European law increases the risk of overseeing questions which are even more crucial for the well-being of the European citizens and residents than the preservation of the unity of European law. According to Eurostat, almost one quarter (122.6 million people/24.5%) in the EU-28 were at risk of poverty or social exclusion in 2013.119 The more pressing questions therefore are whether the ECB’s monetary policy is sound and whether it contributes to the economic well-being of the eurozone and the people who live in it.

118 119

Die Welt (note 115).

Eurostat, People at risk of poverty or social exclusion, Data from January 2015, available at: http:// ec.europa.eu/eurostat/statistics-explained/index.php/People_at_risk_of_poverty_or_social_exclusion (accessed on 24 March 2015).

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Alessandro Chechi: The Settlement of International Cultural Heritage Disputes. Oxford University Press, Oxford 2014, xxx+343 pages, ISBN 978-0-19-870399-0. The book is based on the author’s doctoral thesis supervised by Francesco Francioni at the European University Institute Florence. It seeks to “provide a systematic examination of all types of disputes relating to tangible items of cultural heritage in order to offer a constructive and imaginative scenario and coherent system of dispute settlement” (3). On the basis of this examination Chechi observes the emergence of “a sort of ‘transnational cultural heritage law’ […] a new lex culturalis” (8) and suggests steps towards its further development. An underlying premise is that contradictory decisions on the same issue constitute instances of injustice, another premise is that the protection of cultural heritage is imperfect at present. Chechi begins with an explanation of ‘foundational issues’ (9–64) including a definition of cultural property and cultural heritage as well as typical sources and types of disputes. The next chapter examines ‘the existing legal regime’ on all levels (65–199) including domestic legislation, the private international law dimension, international instruments of cultural heritage law, the law of State immunity, as well as the available means of dispute resolution on all of these levels. Obviously, this is a truly Herculean task, and it is no criticism to say that some of the overviews remain more or less on the level of reports on some of the most striking cases in the respective fields. Nevertheless, four pages on the ‘laws on ownership and exportation of cultural objects’ (66–69), one page on the ‘laws on the restitution of Holocaust-related art’ (75/76), and even twelve pages on ‘the private international law dimension of dispute settlement’ (84–96) are perhaps a little too short for building a meaningful connection between the concrete cases and the underlying ‘grammar’ of property, exportation, and restitution law. Some of the resumées from these overviews appear questionable, for example that “private international law complexifies the resolution of cultural heritage-related disputes” because “such rules are not devised for lawsuits on cultural objects” (96) but “courts have identified new strategies to overcome the hurdles posed by troublesome private international law rules” (97). Private international law certainly makes the resolution of disputes more complex, and not only those on cultural heritage, but adds an indispensable ingredient to justice, and that is taking proper account of international connections to the controversy. Private international law doctrine offers many general techniques for reacting to special interests of a particular area such as the interest of protecting cultural property. And the cases analysed on the issue of the applicability of public foreign law by domestic courts, Schultz and Barakat, in my view do not develop a specific rule in favour of the protection of cultural heritage but turn on the general doctrine of private international law in relation to the relevance of foreign public law to private law litigation before State courts. Nor did these cases develop “truly new strategies to overcome the hurdles posed by troublesome private international law rules,” as the author puts

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it (97), and just because litigation on cultural heritage results in restitutions does not necessarily mean progress for justice. On the basis of the examination of the existing legal regime Chechi discusses two fundamental options for enhancing the settlement of disputes (200–243). The first is the establishment of an ‘International Cultural Heritage Court,’ which has of course little chance of being realised, at least in full scale. Therefore, it is with good reason that the author prefers a method of harmonisation that he calls ‘cross-fertilization’ to be understood as “endogenous practice” (220) by judges and other adjudicators to develop common principles on a subject-matter that is decided differently by different courts due to legal fragmentation. This endogenous practice consists of taking account of decisions, legislation, and practice of other courts and adjudicators even though there is no binding effect, thus it is rather the pure force of the quality of the argument, as such, that counts. The author makes clear that cross-fertilisation in this sense is indeed nothing new but can be and has been already described by terms such as “judicial dialogue,” “cooperation,” “trans-judicialism,” or “transnational judicial communication” (220). One may add the general theory of “narrative norms” in private international law advanced by Erik Jayme as a sign of legal postmodernism,1 i.e. norms of other jurisdictions or normative hierarchies that are not directly applicable in the case at hand but contain convincing notions and principles that call for discussion in relation to the respective legal issue in question, and once the judge enters into such a discussion he or she conducts a ‘dialogue of the sources’ generally known in international disputes.2 Justice demands such a dialogue the more the sources of law multiply, blur, and fragment territorially and hierarchically because incoherence is indeed injustice. In the last chapter, Chechi goes in search of “common rules of adjudication” that may already have become visible and may be condensed in a sort of a global restatement (244–304). At the same time, the author pursues the aim of “the best preservation of cultural heritage by means of the proper settlement of disputes” (244). The proposed restatements thus become a normative drive towards a high level of protection of cultural heritage. In order to further strengthen the emergence of a transnational lex culturalis the author makes two suggestions. First, the UNESCO should elaborate a list of rules to guide adjudicators as they handle cultural heritage disputes (293). This is evidently something of great value and has been recently suggested by the author of this review for a specific field of cultural heritage disputes, namely the settlement of disputes over the restitution of Holocaust-related art under the Washington Principles.3 Since these principles of soft law offer no more than the entirely abstract expectation to achieve ‘just and fair’ solutions without saying anything more4 it would be advisable to work out a restatement of restitution principles on the basis of the 1

Erik Jayme, Narrative Normen im internationalen Privat- und Verfahrensrecht (1993).

2

Id., Identité culturelle et integration: Le droit international postmoderne, Recueil des Cours de l’Académie Droit International de la Haye 251 (1995), 60 et seq., 259. 3 The Washington Conference Principles on Nazi-Confiscated Art, agreed at The Washington Conference on Holocaust Era Assets, Washington, DC, 3 December 1998. 4 Principle No. 8: “If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case”.

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numerous decisions and recommendations that have by now been rendered.5 Chechi’s second suggestion is that the UNESCO should consider establishing a free access database of successful examples of restitution – along with the cultural heritage laws database – and make it available to all adjudicators (293). Again, such a database would obviously be of great value to foster the ‘dialogue of sources’ in order to enhance coherence but should of course also include examples in which restitution was convincingly refused. And as to the idea of a global lex culturalis, I would like to make the following reservation: Whereas under the Washington Principles it is clear that decisions should be consistent, this is less clear when it comes to the protection of cultural heritage in general. Of course the protection of cultural heritage has become a generally accepted and strong objective but there are other objectives and principles that may clash with the aims and needs of cultural heritage law such as e.g. the protection of private property or trust in the reliability of market transactions. And different legal communities and their jurisdictions may strike the balance between competing objectives differently. Such differences may be legitimate and do not necessarily create an issue of injustice by a lack of coherence. Rather, these differences must partly be accepted as an expression of legal diversity. In sum, Chechi has produced an impressive, thought-provoking work on an extremely large topic. His book draws the big picture of global cultural heritage disputes. In principle, his search for coherence and his plea for ‘cross-fertilisation’ are certainly steps in the right direction. When it comes to balancing the details, however, the discourse will go on. MATTHIAS WELLER Director of the EBS Law School Research Center for Transnational Commercial Dispute Resolution EBS Universität für Wirtschaft und Recht, Wiesbaden, Germany

Andrew Clapham/Paola Gaeta (eds.): The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, Oxford 2014, lxxxiv + 909 pages, ISBN 978-0-19955969-5. The editors of this voluminous work impressively explain in their preface the concept of the Handbook, consisting of seven parts covering 32 chapters which are elaborated on by 35 authors. The Handbook is determined to deal with international law applicable in armed conflict, not merely of armed conflict, and this for three reasons: First, the editors want to make clear that 5 Matthias Weller, Key elements of just and fair solutions – The Case for a Restatement of Restitution Principles, in: Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (ed.), International Symposium “Fair and Just Solutions? Alternatives to Litigation in Nazi looted Art Disputes: Status quo and New Developments” (2014), 201 et seq.

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international law to be observed in armed conflict is not limited to international humanitarian law (IHL) but includes other important branches of international law such as, in particular, human rights law, refugee law, international criminal law and environmental law. Secondly, the editors wanted to prevent, by avoiding the term ‘war’ already in the title, the possible impression that the Handbook could be regarded as primarily contributing to the demands of war and military necessity rather than to the desirability of protection through law. Thirdly, the editors wanted to follow the traces of the International Committee of the Red Cross (ICRC) by invoking the ICRC as an important witness for the inclusion of branches not systematically belonging to IHL into international law that is nevertheless applied in armed conflict. Thus, the protective purpose of international law is the fundamental approach of the Handbook. The introduction (part I) is consequently devoted to current challenges to the enhancement of human protection in IHL (the late Antonio Cassese) and to the role of the ICRC (Jakob Kellenberger). Such challenges are regarded as resulting from several deficiencies of IHL, such as the asymmetric nature of non-international armed conflicts, the discouragement of fighters of non-State parties to the conflict to respect IHL, the insufficiency of IHL to set limits on the military might of great powers, ineffective mechanisms for monitoring the compliance and the violation of IHL, and the failing of IHL to secure compensation to victims of armed conflicts (these are partially deficiencies which will be seriously contested by other experts as being attributable to IHL). Deficiencies of IHL affects also the role of the ICRC as the reference organisation for IHL overall and its efforts to extend this role to new problems. Part II deals with the sources of IHL. In contradiction to the widespread observation that modern international law is characterised by a progressive unfolding of codification and comprehensive treaty regimes, a considerable revival of customary law in IHL is discovered (Theodor Meron, 49). Other authors in part II correctly underline that IHL is one of the categories of international law which has been “most intensely codified through treaties” (Robert Kolb/Katherine del Mar, 53). Although very informative, the part on sources will meet some noteworthy criticism especially from States that are intensively involved in protracted armed conflicts. Such criticism will include methodological, as well as substantive problems as has been already demonstrated in connection with the United States (US) Government Response to the ICRC Study on Customary IHL,1 which is frequently and affirmatively cited in the Handbook. The mere fact that, of the world’s 196 States, 194 States are parties to the Geneva Conventions, 172 States are parties to Additional Protocol I (AP I) and 166 States are parties to Additional Protocol II (AP II) should, above all, lead to the conclusion that this body of law has to be identified as a treaty regime of IHL that, among its States parties, has precedence over and derogating effect with regard to customary IHL. Furthermore, to make the substance of treaty law applicable only to international armed conflicts also applicable to non-international armed conflicts, for which, according to the explicit intention of the States parties, it has not been created, by simply classifying, with insufficient methods, treaty rules as customary rules to be applied in both categories of conflicts, is highly questionable.

1

Jean-Marie Henckaerts/Lousise Doswald-Beck (eds.) Customary International Humanitarian Law, vol. I: Rules, vol. II: Practice (2005).

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Treaty law in IHL seems, moreover, a bit underestimated in comparison with customary law, considering the relatively short examination of the numerous conventions, etc. under part III (legal regimes). In this respect the editors have adhered to the traditional, partially outdated classification of the Hague Law. They have, however, entrusted the three branches to internationally well-known experts (land warfare: Yves Sandoz; air warfare: Michael N. Schmitt; maritime warfare: Heintschel von Heinegg). The elaboration on the law of occupation (Philip Spoerri), the law applicable to peace operations (Dieter Fleck), and the law of neutrality (Paul Seger) is also of a high quality. The following four parts comprising about 70% of the volume constitute the core of the editorial concept as explained in the preface. Part IV contains key concepts for IHL. As to the developing law of weapons (Steven Haines) a special concern is whether the law in force today is appropriate to cover systems based on remote, semi-autonomous or autonomous targeting. For this and further reasons, weapons law is regarded as demanding intensive and permanent studies. The principle of distinction between civilians and combatants (Nils Melzer) is correctly commented upon, as far as many rules laid down in AP I to the Geneva Conventions are concerned. With regard to customary law, however, the author unfortunately repeats the grave fault of the ICRC Study on Customary IHL that the notion of combatant may be used as a generic term also including fighters in non-international armed conflicts. This construction simply disregards the fact that AP II intentionally does not contain the word ‘combatant’ at all for persons of the non-State party in non-international armed conflicts. They are, in the language of AP II, persons taking a direct part in hostilities. ‘Combatant’ is defined as a legal, not as a generic term (Article 43 (2) AP I). The Geneva Diplomatic Conference, in 1977, assigned the right to fight within the framework of IHL exclusively to members of the armed forces of a party to a conflict according to the definition of Article 43 (1) AP I. The ICRC already failed at that time to include ‘combatant’ as a legal notion into AP I. Its conversion into a generic term may be a second attempt. The contribution dealing with proportionality as a key concept for the law of armed conflict (Enzo Cannizzaro) deserves special interest. The author qualifies proportionality “as a tool that connects ius in bello and ius ad bellum” and this connection permits in his view “a comprehensive evaluation of proportionality” (351) – a fascinating idea, but still a narrative far removed from legal reality. The final key concept concentrates on ‘internal (non-international) armed conflict’ (Eric David). Although AP II, in its basic Article 1, includes an explicit distinction between non-international armed conflicts (para. 1) covered by the scope of the Protocol and situations of internal disturbances, etc. not falling under the Protocol (para. 2), the author prefers to deviate, already in his headline, from this legal understanding binding the parties of AP II comprising about 80% of the States of this world. Whereas another author of the Handbook notes that “almost every conflict in the world today is non-international” (Meron, 49), the part of ‘key concepts’ for IHL devotes only ten pages to such conflicts. Noninternational armed conflicts are, of course, also considered in other parts and chapters of the work. Nevertheless it seems to be questionable whether all authors, especially those of the ‘key concepts’ have realised the law-antagonistic nature of non-international armed conflicts. The Handbook contains carefully thought out proposals on how non-State actors could be induced to comply at least with some basic parts of the law (e.g. Andrew Clapham, 809 et seq.).

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Compared with present reality (Syria, Iraq, parts of Africa, the conduct of fighters of IS and Boko Haram, etc.), it is unfortunately to be feared that such proposals remain without practical effects. The editors themselves honestly admit that the chapters dealing with ‘key concepts’ are primarily aimed at providing “a springboard for discussion and reflection on the fundamental ideas operating deep down in the DNA of the law of war” (x). The part on ‘key rights’ in armed conflicts is closely connected with the editors’ idea/aim of dealing with certain branches of international law not to be categorised as law of armed conflict but as law in armed conflict. This part is especially determined to “force the reader to see armed conflict from another angle, particularly from a human rights perspective” (xi). The right to life (William Schabas), torture and other cruel, inhuman, or degrading treatment or punishment (Manfred Nowak), international fair trial guarantees (David Weissbrodt), economic, social, and cultural rights in armed conflicts (Eibe Riedel), protection of the natural environment (Jean-Marie Henckaerts/Dana Constantin), protection of cultural property (Roger O’Keefe), and members of the armed forces and human rights law (Peter Rowe) have been selected as appropriate to provide for another perspective on armed conflict. The part on ‘key issues’ in armed conflict deals with actual phenomenons, but also with the immanent nature of war. The use of force (Giovanni Distefano) is discussed with well-known arguments (e.g. comprehensive ban but unsatisfactory machinery for enforcement). Terrorism (Andrea Bianchi/Yasmin Naqvi) is correctly regarded as a phenomenon which neither makes the rules of IHL obsolete nor calls for their revision (601). IHL sufficiently permits the application of rules concerning the methods and means of warfare to all terrorist acts and qualifies them as illegal. ‘Unlawful combatants’ (Knut Dörmann) are, as rightly established, of course not outside the scope of IHL by qualifying them as being neither combatants nor civilians. Private military and security companies (James Cockayne) and the academic question whether they could and should be bound by voluntary codes of conduct is primarily to be answered on the basis of accountability of their activity to a State. International human rights in time of armed conflict (Derek Jinks) and gender in armed conflict (Christine Chinkin) find their common denominator in the effort to humanise warfare (674, 699). Armed conflict and forced migration (Vincent Chetail) is, indeed, a closely combined and growing evil of mankind which urgently demands a combined application of IHL, human rights and refugee law (732). The last part dealing with accountability/liability for violations of law in armed conflicts contains contributions of the two editors, i.e. war crimes and other international ‘core’ crimes (Paola Gaeta) and focuses on armed non-State actors (Clapham). The author of the second topic has undertaken the hardly solvable task of finding ways to include non-State parties, non-State groups and non-State actors into a reciprocal compliance with the law applicable in armed conflicts. State responsibility and the individual right to compensation before national courts (Christian Tomuschat) and transitional justice (Nicolas Michel/Katherine del Mar) complete the voluminous work. Finally it should be mentioned that the user of the Handbook will especially appreciate the comprehensive and well structured table of cases and the table of relevant agreements, conventions, instruments, treaties, and national legislation with precise references to the 32 chapters.

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To sum up: The Handbook doubtlessly represents a basic work on international law applicable in armed conflicts and it is certainly appropriate to determine to a broad extent the further discussion of many of the subjects so diligently examined. This high scholarly quality, however, may lead the user to call it an understatement to speak of a ‘Handbook’ which in its proper sense is more or less a small book containing facts and notes for practical use. This possible understatement points to a final critical appraisal not of the work, but of the expectation of Oxford University Press, according to which the book will be an unparalleled resource for students, scholars, and practitioners. Indeed the work will be such a resource for scholars especially interested in the law applicable in armed conflict. Whether it will meet the methodological and didactic requirements of a textbook for students may be questionable. Whether it can serve as a ‘Handbook’ for those taking a direct part in warfare as ordinary combatants or as fighters up to high commanders or leaders is hardly conceivable. To use an approach taken by Michael N. Schmitt in his chapter on air warfare (119): Law applicable in armed conflict has to be examined in order to answer the four questions that are central for persons taking part in armed operations: Where are they permitted/not permitted to go?, What may/may not they shoot at?, How must they conduct their operations?, and what weapons may they use? The Handbook, not withstanding its high academic value, may leave such persons more or less without sufficiently clear-cut rules as required for military operations. KNUT IPSEN Professor (Emeritus) Ruhr-University Bochum

Oliver Dörr/Rainer Grote/Thilo Marauhn (eds.): EMRK/GG: Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz, 2nd edition. Mohr Siebeck, Tübingen 2013, xxvii +2416 pages, ISBN 978-3-16-149397-3. Seven years after its first edition was published, the long-expected second edition of the “EMRK/GG: Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz,” which would probably best be translated as “European Convention on Human Rights/Basic Law: Commentary on the Concordances in the Protection of Fundamental Rights on the European and German Level” is now available. In comparison to the first edition, the second edition grew by about 500 pages and is now comprised of not one but two volumes. The Commentary’s structure and the number of chapters, however, remained the same. Within the group of more than twenty authors only minor changes occurred. The most obvious renewal is, of course, that the original editors Rainer Grote and Thilo Marauhn have been joined by a third editor, Oliver Dörr. The Commentary consists of three main parts. Under the heading “Comparative Description of the Structures of the European and German Protection of Fundamental Rights” the first part is dedicated to a number of general topics not related to certain guarantees. It

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contains an overview of the history and reception of the Convention (Rainer Grote), as well as an analysis of the effect and status of the Convention in the internal legal orders of the Member States (Thomas Giegerich), a comparative study on the protection of fundamental rights under the law of the European Union (Dieter Kraus), a description of the rules on the interpretation of the Convention (Hans-Joachim Cremer), an inquiry into the applicability ratione personae and loci of the Convention, the German Basic Law, and the Charter of Fundamental Rights of the European Union (Volker Röben), an analysis of the concepts of negative and positive obligations (Heike Krieger) and of the notions of interference and limitations of fundamental rights (Thilo Marauhn/Katrin Merhof), an overview on the rules governing a state of emergency (Heike Krieger), and finally outlines the lacunae within the Convention (Dagmar Richter). Part one is followed by an extensive commentary on the individual rights and freedoms. Its twenty chapters cover the right to life (Ralf Alleweldt), the freedom from torture or inhuman or degrading treatment or punishment (Roland Bank), the freedom from slavery and forced labour (Thilo Marauhn), the right to liberty (Oliver Dörr), the right to a fair trial (Christoph Grabenwarter/Katharina Pabel), the principle of nulla poena sine lege (Stefan Kadelbach), the right to respect for private and family life (Thilo Marauhn/Judith Thorn), the freedom of religion and conscience (Christian Walter), the freedom of expression (Rainer Grote/Nicola Wenzel), the freedom of assembly and association (Jürgen Bröhmer), the right to an effective remedy (Dagmar Richter), the freedom from discrimination (Anne Peters/Doris König), the right to property (Hans-Joachim Cremer), the right to education (Christine Langenfeld), parents’ rights regarding the school system (Christine Langenfeld), the right to free elections (Dagmar Richter), the freedom of movement (Thomas Giegerich), the right not to be expelled (Andreas Zimmermann/Björn Elberling), the abolition of the death penalty (Ralf Alleweldt), and the principle of ne bis in idem (Stefan Kadelbach). The third and last part focuses on the enforcement mechanisms. In the chapter “International enforcement” Stefan Kadelbach not only elaborates on the enforcement mechanisms of the Convention but also explains the relevant procedures under the law of the European Union (EU) and those within the United Nations system. This chapter is followed by a study on the enforcement of Convention rights within the German legal system accompanied by an overview of how to enforce national basic rights (Christian Walter). The Commentary is completed by an analysis of the nature and effects of the decisions of the European Court of Human Rights (ECtHR) (Hans-Joachim Cremer) and a scrutiny on the issues of reparation and compensation (Oliver Dörr). Finally, the Commentary’s annex provides extensive tables of cases of the ECtHR and the German Federal Constitutional Court along with crossreferences to the Commentary’s text. As indicated by this overview, the Commentary is not a ‘classical’ article-by-article commentary. Its structure is rather comparable to that of textbooks like those edited by Jacobs/White/Ovey or by Harris/O’Boyle/Warbrick. The Commentary – having three times as many pages as these works – is, of course, by far more comprehensive. However, as in a clas-

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sical commentary, the chapters – with some exceptions – generally begin with a full quotation of the relevant articles of the Convention and – if applicable – its Protocols, the German Basic Law, and the Charter of Fundamental Rights of the European Union. The reader is thereby enabled to take note not only of the wording of Convention provisions but also to compare them with the respective provisions under German and EU law at a glance. As far as the Commentary diverges from this principle, this is – in most of the cases – easily explained by the general character of the topics of the respective chapters which are not directly related to a certain Convention provision. Insofar it could be considered whether some of the ‘general’ chapters – for instance, the chapter on the applicability ratione personae and loci or the one on the concepts of negative and positive obligations – could have been linked to Article 1 ECHR. It might have made these topics more accessible. Besides, a major divergence from the concept of an article-by-article commentary is that the Commentary more or less completely omits the procedural provisions (Articles 19 et seq. ECHR). In this respect the Commentary confines itself to a compacted overview of the complaint procedure under Articles 34 and 35 ECHR. This brevity is, however, justified by the Commentary’s comparative approach which, naturally, must focus on the substantive rules. Amongst the commentaries which are currently available in German language the reviewed Commentary is probably unique. As to its length it may only be compared to the “Internationaler Kommentar” edited by Katharina Pabel and Stefanie Schmahl which, however, does not include the comparative perspective (and – unfortunately – shares the fate of many loose leaf editions of being chronically incomplete). Regarding the depth of doctrinal analysis, the reviewed Commentary is without doubt unrivalled. The only drop of bitterness to be mentioned is that a monumental work like this Commentary will hardly be able to provide up-to-date information on all relevant aspects even at the time of its publication (which is exemplified by the fact that, here and there, recent landmark decisions are not mentioned even though they were issued before the editorial deadline mentioned within the foreword). Keeping in mind the extraordinary editorial challenge of coordinating more than twenty authors for a work of more than 2,000 pages whilst being faced by an uninterrupted output of judgments by the ECtHR, this is, however, perfectly excusable. Finally, it should not be concealed that the reviewed Commentary is not only an impressive piece of work but also comes with an impressive price tag (€ 378.00). While there is no doubt that the book is worth this price, to work with the Commentary the average consumer of law books will therefore probably rather turn to the next academic library than purchase the book himself. Hopefully the Commentary will nevertheless be broadly disseminated and receive the attention it deserves. CHRISTIAN JOHANN Senior Associate at REDEKER SELLNER DAHS, Berlin

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Hazel Fox CMG QC/Philippa Webb: The Law of State Immunity. Oxford University Press, Oxford 2013, 3rd edition, xliv+645 pages, ISBN 978-0-19-964706-4. State immunity is not only one of the ‘traditional’ topics of ‘classical’ international law, but also one that is of almost routine-like relevance in municipal law, as jurisdictional immunity of foreign States is one of the most frequently litigated areas of international law before domestic courts. In any digest of international law to be found in the various journals and yearbooks State immunity takes a prominent place. Due to its dynamic and evolutive character the subject of State immunity is highly topical. It has undergone substantive changes since the erosion of the traditional rule of absolute immunity and the restrictive theory, first developed in the context of commercial acts, has been extended to other factual circumstances, such as labour disputes, personal injuries and damage to property, which nowadays play an equally important role in practice. But what makes the law of State immunity even more perplexing, and challenging, is its current state of fragmentation. The sources of State immunity are varied and to be found in both international and domestic law. As the authors of the book under review emphasise, the current state of the law “provides a valuable case study of the interaction of international law and national law, and of the formation of customary international law from national law sources” (7). In fact, it is often difficult to ascertain whether domestic authorities, in deciding questions of State immunity, really apply legal rules consistent with what international law requires, all the more so as domestic courts produce different, at times conflicting, decisions on similar or even identical questions of immunity. It remains to be seen whether this will change with the growing recognition by States of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, whose ultimate purpose is, after all, to unify or harmonise the hitherto diverse State practice in the field. The discussion of individual aspects of State immunity has generated an abundant literature, but the book under review is the only comprehensive treatment of the broad field of State immunity. And the unclear state of the law certainly calls for such comprehensive treatment. Already with the publication of the first edition in 2002, the monograph by Hazel Fox, an undisputed authority on the law of international immunities, attained the status of leading reference work on the diverse aspects of State immunity. The present third edition has undergone substantial revision to accommodate the significant developments that have occurred within the period of only five years since the second edition, with Hazel Fox joined by Philippa Webb as co-author to assist in this difficult task. There are several noteworthy revisions many of which were prompted by the 2012 International Court of Justice (ICJ) judgment in Jurisdictional Immunities. Conceptually, the authors have decided to explain the idea of State immunity and its justification(s) with the help of ‘three models’ (chapter 2). These are the time-honoured distinction between absolute and restrictive immunity, a distinction that has in a sense been supplemented by the idea of State immunity as a ‘mere’ procedural exclusionary plea that is without prejudice to the (substantive) issues made (particularly the lawfulness of the act of the foreign State). As such, this third model may effectively operate as a modulator to counterbalance when the restrictive theory has gone too far and has been applied too expansively.

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A major change in the structure of the book concerns not only Part I on “General Concepts” which was completely re-structured, but also the recognised exceptions to State immunity. This new structure was necessitated by the very rich recent judicial practice. While previously the exceptions all featured under one heading with a general ‘introduction’ into the idea and justification of these exceptions (“Exceptions to State Immunity: The Concept of Commerciality,” “The Commercial and other Exceptions to State Immunity,” chapters 17 and 16, respectively, of the second edition), the new third edition singles them out individually, which increases the clarity of the discussion and analysis enormously. Thus, following a revised introductory chapter on “The Concept of Commerciality” (chapter 12), dealing with the distinction between private and sovereign acts, chapters 13 to 15 deal separately with the commercial and other, closely related exceptions, i.e. the employment exception and the territorial tort exception. The importance in practice of both the labour and tort exception has recently increased significantly, thus this separation is more than warranted. In particular the “territorial tort exception” (chapter 15) has developed as a sort of battleground for attacking State immunity particularly in the context of ‘crimes of State’ or violations of jus cogens, and it is frequently applied by domestic courts in an extensive way that pushes the generally recognised exception concerning personal injury and damage to property far beyond its initial scope. In Jurisdictional Immunities, theICJ strongly, and convincingly, supported a retreat from that extensive application, and that judgment is extensively analysed in the book. Increased attention is also paid to the employment exception (chapter 14), particularly as regards claims of employees of international organisations against their employer. If brought in domestic courts, these claims are generally at odds with the quasi-sovereign immunity of the organisation; in turn, this immunity is at variance with the right of the individuals concerned to access justice. This has become a real bone of contention in recent years, not least because the approaches taken to resolve this problem vary considerably. Hence it is most welcome that the authors address the employment exception in respect of international organisations distinct from the situation concerning a foreign State. Equally, the issue of State immunity in enforcement proceedings has been expanded and restructured. While chapter 16 addresses general aspects, chapter 17 deals with “The Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune.” As is well known, law and practice are quite unsatisfactory in this regard. However, the authors rightly call for a cautious approach given the highly sensitive nature of the issues involved. In sum, the authors must be sincerely congratulated for this substantially revised edition of an already renowned treatise. Not only have they achieved an extremely useful update of the current law of State immunity by keeping up the high standard of the previous editions in terms of almost lexicographical tracing and recording of State practice and case law in numerous jurisdictions. The book is also an excellent attempt at re-conceptualising the notion of State immunity against the background of recent international case law. As such it is highly stimulating and also thought provoking from a doctrinal point of view. To be sure, one may at times lose track in searching for answers to, or discussions of, particular questions; but this is due rather to the wealth of information and, above all, the fragmented picture of the law of State immunity, than to lack of structure in the book. All in all, the book is a real treasure, and

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while treasures are supposed to be buried, any true international lawyer can be pleased that this one need not be uncovered. STEPHAN WITTICH Associate Professor of International Law University of Vienna

Dirk Pulkowski: The Law and Politics of International Regime Conflict. Oxford University Press, Oxford 2014, xix+374 pages, ISBN 978-0-19-968933-0. Global Legal Pluralism is now recognised as an entrenched reality of the international and transnational legal order. Indeed, wherever one looks, there is conflict among multiple legal regimes. Some of these regimes are State-based, some are built and maintained by non-State actors, some fall within the purview of local authorities and jurisdictional entities, and some involve international courts, tribunals, arbitral bodies, and regulatory organisations.1 For many years, international law triumphalists hoped that the rise of international legal institutions would resolve this messy world of regime collision and fragmentation by creating one over-arching, hierarchically superior set of norms that most people would follow most of the time. And yet, precisely as legal pluralism scholarship would predict, the hierarchy, once articulated, was immediately contested. Thus, international law, though it often has very real impact,2 ends up being one voice among many, all competing for authority. In addition, again as legal pluralism scholarship predicts, it quickly becomes clear that international law itself is not one entity. Instead, different international legal regimes, promulgated for very different reasons and administered by different tribunals and regulatory bodies, often themselves conflict and collide with each other, leading to negotiation, contestation, and the need for hybrid provisional compromises.3 In response to this pluralism, we could bemoan the “fragmentation of international law”4 and seek to stamp it out by trying to create rules of recognition that would definitively declare one legal regime to be superior. This strikes me as a fool’s errand given the diversity of the world’s population. Alternatively, we can celebrate the multiplicity and devise strategies for managing, without eliminating, the inevitable pluralism we see around us. And if we do so, we

1

See Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (2012).

2

Id., Seeing Beyond the Limits of International Law (reviewing Jack L. Goldsmith/Eric A. Posner, The Limits of International Law ( 2005)), Texas Law Review 84 (2006), 1265. 3 See Margaret A. Young, Regime Interaction in International Law: Facing Fragmentation (2012). 4 E.g., Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, United Nations International Law Commission, Report of the Study Group on Fragmentation of International Law, UN Doc. A/CN.4/L.682 (2006).

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may find that law already provides a language and a set of procedural mechanisms and discursive practices that might help negotiate across the fissures. Dirk Pulkowski’s “The Law and Politics of International Regime Conflict” explores how this negotiation takes place in one particular substantive area: the regulation of trade in cultural products. Pulkowski observes that such regulation may arise from three distinct international regimes: (1) the trade regime embodied in Article IV General Agreement on Tariffs and Trade, administered by the World Trade Organization, or in regional trade agreements, such as the North American Free Trade Agreement; (2) the international human rights regime, which protects freedom of expression and the right to information, embodied in the United Nations Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, and the International Covenant on Civil and Political Rights of 1966; and (3) the culture regime established by the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, under the purview of the United Nations Educational, Scientific and Cultural Organization (UNESCO). As Pulkowski notes, each of these three regimes may well promote “different, and ultimately incommensurable, policy goals, such as open markets, diversity of cultural identities, and equal opportunities for cultural participation in a society.” (13) So what happens when these regimes collide by pulling “in different directions and towards different normative outcomes?”(13) Each regime has similar authority; none is hierarchically superior to the other two. But does that mean that there is no possible response? Does the resulting legal pluralism render efforts to negotiate among the regimes useless? Pulkowski thinks not. He argues instead that international law, even when it does not offer a hierarchically superior set of normative rules, provides interpretive strategies that can help develop what he calls “inter-regime compatibility.”(20) Indeed, although international law is not (and perhaps never will be) “an integrated and fully unified system,” it can be “a common language for discursive engagement across regimes, based on shared, regime-transcendent discourse rules.”(20) What are these “regime-transcendent” discourse rules? Not surprisingly, Pulkowski here turns away from substantive norms because it will always be difficult to choose a single set of substantive norms to govern. Instead, he focuses on interpretive and procedural mechanisms, which at least have the potential to forge provisional compromises among different normative systems. He argues that “[i]nternational law plays a useful role in bridging conflicting regimes” in two ways. (20) First, international law offers canons of interpretation that can be used by actors within each of the three regimes to try to interpret norms with an eye towards overall systemic coherence. Second, if no systemic coherence is possible, international conflict-of-law rules can be used to determine which regime’s norms to apply (or whether, perhaps, a hybrid can be forged). As to the first strategy – interpretation – Pulkowski argues that international law provides four techniques that together help create rational justifications for negotiating normative differences among regimes. These four techniques are: (1) applying ordinary meaning interpretation to relevant legal rules; (2) using rules governing the relations between the parties to interpret terms; (3) interpreting legal rules within the framework of the entire legal system; and (4)

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applying principles of default deference. In making this argument, Pulkowski clearly aligns himself with interpretivists, who insist that legal rules do not have a single fixed meaning that is discovered, but rather that the meaning of legal rules is developed over time through processes of interpretation. To those versed in common law methodology and legal realism this will not be controversial, but to some formalist continental legal theorists it may be. Yet, at the same time, Pulkowski rejects the claim that legal rules are so malleable that they have no valence independent from politics. Using legal hermeneutics, he attempts to lay out a middle ground of interpretation that will open a field of discourse among conflicting normative regimes. And he argues that international law provides a ‘grammar’ for this discourse. As to conflict-of-law rules, Pulkowski rejects the most commonly used priority rules of international law – lex specialis and lex posterior – as “inapt for adjudicating conflicts between different issue-specific regimes.” (319) Instead, he argues that these regime conflicts are analogous to traditional conflict-of-laws situations and seeks to import domestic conflicts principles into the international regime context. Here, he adopts the comparative impairment approach advocated by the American conflicts scholar William Baxter. This approach focuses on the degree to which a decision “to apply or not apply a particular rule supports or impairs the objectives underlying each legal system.” (333) Pulkowski contends that most regime conflicts in the area of cultural products can be resolved using a combination of these interpretive and conflict-of-law principles. One could quibble about the effectiveness of these procedural approaches both in the particular context of cultural products and as a more general way to resolve regime conflicts in other substantive areas. But the important point is that Pulkowski is seeking a thoughtful response to the reality of pluralism. He neither tries to wish away pluralism by vainly asserting normative hierarchy, nor does he simply observe pluralism, bemoan fragmentation, and give up. Instead, he offers a set of procedural strategies for managing pluralism without attempting to stamp out its reality. This seems to me to be the correct approach, and while it will never perfectly ‘solve’ problems of legal pluralism – an impossible task we should not be undertaking anyway – it does respond to pluralism both pragmatically and thoughtfully. Moreover, Pulkowski performs a useful service by playing out his strategies in a specific context and doing so in a theoretically sophisticated and systematic way. As such, this book is an important contribution to the new generation of scholarship on global legal pluralism. This scholarship suggests that, in the end, international law’s strength might be less its assertion of an absolute set of governing norms and more its provision of a language and forum for creative and fruitful contestation and compromise. PAUL SCHIFF BERMAN Manatt/Ahn Professor of Law The George Washington University Law School

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Ben Saul/David Kinley/Jacqueline Mowbray (eds.): The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials. Oxford University Press, Oxford 2014, lxiii+1292 pages, ISBN 978-0-19-964030-0. A commentary on a statute or a treaty is a very helpful tool and source. Commentaries on the Charter of the United Nations (Bruno Simma et al.), the European Convention on Human Rights (Jochen Abr. Frowein/Wolfgang Peuckert), and the International Covenant on Civil and Political Rights (Manfred Nowak) appeared some twenty years ago for the first time and have since been up-dated.1 From 1999 onwards (Otto Trifterer, Rome Statute) the number of commentaries on international treaties has multiplied,2 three new commentaries were published in 2013 and two new editions of older titles appeared. In 2014, there were five new commentaries, among them the impressive volume on the International Covenant on Economic, Social and Cultural Rights (ICESCR). Over the last number of years, there has been an increasing amount of important scholarship dedicated to the ICESCR and the monitoring function of the Committee on Economic, Social and Cultural Rights (CESCR) has become more encompassing. Therefore, time was ripe to prepare this commentary on the Treaty that should be – yet still has to become – one of the core elements of the International Bill of Rights. Over 1232 pages, the authors analyse the contents of the substantial ICESCR provisions by making reference to the travaux préparatoires as far as necessary and extensively dealing with the General Comments and Concluding Observations of the CESCR. They make careful but convincing use of a comparative approach and take provisions from other human rights treaties into account where appropriate and useful. Furthermore, they refer to the jurisprudence of other human rights courts and bodies and use arguments from the literature to shape their own conclusions. The authors’ approach is very clearly demonstrated in the first section on Articles 1 and 25 ICESCR dealing with the right of peoples to self-determination and the right to freely utilise natural resources. These 120 pages form a well-written, very informative piece of research, offer a dense and up-to-date overview to the reader and mark out the position of the authors. Of course, it is not possible to deal in detail, within the constraints of a review, with the abundant scholarly work which the authors presented in this book, but I would like to draw the readers’ attention to the section on limitations on ICESCR rights. Here, Articles 4, 5, and 24 ICESCR are examined, with emphasis on the sub-section of Article 4 ICESCR. The authors convincingly combine the rather narrow practice of the CESCR with the respective positions of other treaty bodies and human rights courts in order to make clear that restrictions of ESC-rights shall only apply in rare cases and shall have the character of an exemption. Considerable weight is given to the commentary of Article 13 ICESCR (right to education) which is – following a term coined by Katerina Tomaševski – understood as a ‘multiplier 1 Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations was first published in 1976, the 3rd and most recent edition in 2008. 2 Reference is made to titles in German and English – 35 commentaries on international treaties.

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right,’enabling individuals to know about their rights and to be in a position to enjoy them. The authors outline the normative basis both on the universal and on the regional levels, they refer to binding and non-binding documents, and analyse the jurisprudence of the different monitoring mechanisms. The commentary shows the interrelatedness of Article 13 ICESCR with provisions in the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities in particular: Availability, accessibility, acceptability, and adaptability as the four major features of the right to education are of high importance in the framework of these conventions. The authors support the CESCR’s approach of considering specific indicators which suggest possible problems with the fulfilment of the right to education in the State under review. They discuss these indicators and points of concern, making ample reference to the Committee’s jurisprudence. The sub-section dealing with the right to education of members of minority groups is well-informed and identifies the important problems of language rights and non-discrimination, especially with regard to Roma. In sum, the book is a very useful, up-to-date, and well-researched source of information, providing detailed reasoning from a broad variety of cases and materials. The authors make important reference to other treaties and take into account the different regional regimes for the protection of human rights. They thus underline the interrelatedness of human rights and give a very convincing example of comparative work. I would have expected some more critique or explicit approval of the issues referred to by the authors, thus developing their own scholarly position with regard to certain questions, e.g. the right to free, compulsory primary education and question of free higher education. This ICESCR Commentary can be recommended for scholars and practitioners. NORMAN WEIß Professor Human Rights Centre, University of Potsdam

Dinah Shelton (ed.): The Oxford Handbook of International Human Rights Law. Oxford University Press, Oxford 2013, lviii +1018 pages, ISBN 978-0-19-964013-3. At the very end of her informative introduction (6) the editor remarks: “Reading each chapter was a joy that I hope will be shared by many readers.” This statement raises high expectations. Will they be met? The book is divided in seven parts with 39 chapters altogether following a logical order. Part I deals with ‘Theoretical Foundations:’ ‘Religion’ (M. Christian Green/John Witte, Jr.), ‘Moral Philosophy’ (Siegfried van Duffel), ‘Biological Foundations of Human Rights’ (Chris A. Robinson), ‘Sociology of Human Rights’ (Bryan S. Turner), ‘The Psychological Foundations of Human Rights’ (Robin Bradley Kar), and ‘Anthropology and the Grounds of Human Rights’ (Mark Goodale).

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Part II turns to the ‘Historical and Legal Sources.’ It begins with an article on ‘The Foundations of Justice and Human Rights in Early Legal Texts and Thought’ ( Paul Gordon Lauren) and is followed by ‘General Principles and Constitutions as Sources of Human Rights Law’ (Michael O’Boyle/Michelle Lafferty), ‘The Anti-Slavery Movement and the Rise of International Non-Governmental Organizations’ (Jenny S. Martinez), ‘Diplomatic Protection as a Source of Human Rights Law’ (Annemarieke Vermeer-Künzli), ‘Humanitarian Law as a Source of Human Rights Law’ (Gerd Oberleitner), ‘Social Justice, Rights, and Labour’ (Janelle M. Diller), and ‘The Protection of Minorities under the Auspices of the League of Nations’ (Péter Kovács). Part III tackles the ‘Structural Principles.’ ‘Human Dignity’ (Paolo G. Carozza) understandably takes the lead, and is followed by ‘Subsidiarity’ (Gerald L. Neuman), ‘Sovereignty’ (Johan D. van der Vyver), ‘Solidarity’ (Rüdiger Wolfrum), ‘Equality’ (Jarlath Clifford), ‘Proportionality’ (Yutaka Arai-Takahashi), and lastly ‘Democracy and the Rule of Law’ (Christian Tomuschat). Part IV explores the ‘Normative Evolution’ of international human rights. The articles here are dedicated to ‘The Law-Making Process: From Declaration to Treaty to Custom to Prevention’ (Bertrand G. Ramcharan), ‘Core Rights and Obligations’ (Martin Scheinin), ‘Jus Cogens and Obligations Erga Omnes’ (Erika de Wet), and ‘Positive and Negative Obligations’ (Dinah Shelton/Ariel Gould). In Part V the contributions turn to ‘Institutions and Actors:’ ‘From Commission to the Council: Evolution of UN Charter Bodies’ (Miloon Kothari); ‘The Role and Impact of Treaty Bodies’ (Nigel S. Rodley); ‘The Role of International Tribunals: Law Making or Creative Interpretation?’ (Cecilia Medina); ‘Universality and the Growth of Regional Systems’ (Christof Heyns and Magnus Killander); ‘National Implementation and Interpretation’ (Nisuke Ando); and ‘Roles and Responsibilities of Non-State Actors’ (David Weissbrodt). Important issues are dealt with in Part VI ‘Human Rights and General International Law:’ ‘Interpretation of Human Rights Treaties’ (Malgosia Fitzmaurice), ‘Enforcing Human Rights through Economic Sanctions’ (George A. Lopez), ‘Transnational Litigation: Jurisdiction and Immunities’ (Chimène I. Keitner), ‘The Use of International Force to Prevent or Halt Atrocities: From Humanitarian Intervention to the Responsibility to Protect (Ramesh Thakur), ‘Trade Law and Investment Law’ (Sarah Joseph). Finally, Part VII contains ‘Assessments:’ ‘Creating and Applying Human Rights Indicators’ (Francisco López-Bermúdez), ‘Compliance’ (Gisella Gori), ‘What Outcomes for Victims?’ (Fiona McKay), and ‘Human Rights Make a Difference: Lessons from Latin America’ (Juan E. Méndez/Catherine Cone). Tables of national and international cases, of treaties, declarations, and other international instruments as well as of abbreviations and notes on the 42 contributors and a large index are added. The above enumeration is necessary to demonstrate the broad approach taken by the book, a veritable ‘Handbook’, and to do justice to the authors and the editor alike. The latter has done a fabulous job. The disposition of the book and the choice of the contributors, many of

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them likewise experienced as academics and practitioners, are convincing. All chapters are well composed and focused, illustrating the relevant problems, discussing possible solutions and obstacles, and concluding with concise summarising observations, and some, not too many, suggestions for ‘Further Reading.’ It is difficult to detect important omissions. The editor herself mentions that due to late withdrawals of promises to contribute “chapters discussing challenges to the existence of human rights, State responsibility for human rights violations, and a general conclusion” were not included in the text (Introduction, 3). However, at least partly, these lacunae are made good by some other contributions. Sure, the ‘general conclusion’ could have become more illustrative, but in view of the rich amount of information presented in the book the task would have been very difficult (and may explain the withdrawal), and certainly this book review cannot fill the gap. Further, contributions analogous to the last chapter (‘Lessons from Latin America’) would have been welcome. What difference do human rights make in Africa, Asia, Europe, and, not least, in North America? But no book can be completely comprehensive, and all those who are concerned with human rights know very well that there remains a lot to do, in every respect. Due to the inherent constraints of a book review, just a few issues can be taken up. First, one may wonder why ‘universality’ does not deserve its own keyword in the Index, though it is mentioned under the catchword ‘Universal Declaration of Human Rights’. In fact, the problem is dealt with from different angles in the chapters of the first part discussing general potential sources for the thinking of human rights, but also, to name merely three, in the chapters on early legal texts and thought, humanitarian law, and human dignity. In the chapter ‘Universality and the Growth of Regional Systems’ the accent is clearly put on the regional regimes, while the claim of human rights to universality is not really picked up there. From the personal view of this reviewer the contributions dealing with human rights lawmaking (Ramcharan), their interpretation (Fitzmaurice), and the challenge to distinguish between them (Medina) are particularly interesting from an academic as well practical standpoint. Closely connected with these problems is the question of the ‘margin of appreciation’ (Neuman, 375; Fitzmaurice, 767) which, although “slippery and elusive as an eel” (Lord Lester of Herne Hill), is indispensable for a reasonable and at least preliminary distribution of responsibility between the international monitoring body and the States, even if, e.g., the United Nations (UN) Human Rights Committee does not use the notion. In this context it is also worth mentioning that the necessity to take a holistic view regarding the human rights norms and the interpreting jurisprudence of monitoring bodies of different levels is rightly emphasised by various authors (e.g., Diller, 323; Clifford, 442; Fitzmaurice, 769). The article on “Proportionality” (Arai-Takahashi, 460) exemplarily shows what human rights bodies, here the UN Human Rights Committee by its General Comments, may contribute to the evolution of human rights law. Though proportionality is essential for weighing conflicting rights and interests, such balancing cannot be applied where the outcome is predetermined by a hierarchy of rights which, however, is, if at all, very difficult to establish (Scheinin, 531). Even jus cogens and erga omnes norms do not trump any conflicting international norm (prohibition of torture, State immunity, and access to court), presupposed that a legal conflict exists at all (cf. van der Vyver, 393; de Wet, 549; Keitner, 799).

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Two final points should be briefly mentioned. In the chapter concerning the use of international force the contributor (Thakur, 815) delivers a forceful pleading for the further development and application of the ‘responsibility to protect’ as an important tool “to tame atrocities that tyrants commit against their own people” (833), at the same time deeply deploring how far the UN Security Council Resolution 1973 (2011) on Libya has been stretched. A similarly vigorous argument is made in favour of an approach more apt to take into account the rights of the victims of human rights violations (McKay, 921). ‘Victimology’ has become in domestic law a relevant subject, too. Though this reviewer supports this trend, it is doubtful, whether it is correctly assessed by the phrase “Human rights law needs to be demystified and humanized […]” ( 953). Human rights are an extending phenomenon, both in terms of breadth and depth. They have made a difference despite heavy setbacks. We know “There will be never heaven on earth” (Vaclac Havel), but it is worthwhile to struggle for an ever more effective human rights protection. At the end of the day we need States to achieve this aim and a responsive culture that people themselves are capable of realising (cf. Goodale, 157; Ando, 717). Indeed: “Reading each chapter was a joy that I hope will be shared by many readers.” ECKART KLEIN Professor University of Potsdam

Hugh Thirlway: The Sources of International Law. Oxford University Press, Oxford 2014, xxi+239 pages, ISBN 978-0-19-968540-0. “The state-of-the-art on one of the most foundational doctrines of international law written by an incredibly knowledgeable scholar who can hardly be outpaced when it comes to the mastery of orthodox doctrines and international case law.” If Hugh Thirlway’s “Sources of International Law” (SIL) were to be captured in one sentence, this is how this sentence would read. It can hardly be contested that SIL constitutes a splendid and comprehensive cartographic exercise that offers a snapshot of where the doctrine of the sources of international law stands today both in the mind of the orthodox international lawyers as well as in the case law of international courts. The modernist doctrine of the sources of international law – itself a product of 19th century legal thinking – is spelled out and refined to an unprecedented degree. It is also carefully updated, taking into account all the latest judicial pronouncements. This volume will disappoint neither the practitioner nor the researcher confronted with the thorniest controversies on the identification of international law as well as the distinction between law and non-law. SIL being destined to be the new authoritative compendium on the sources of international law and reach the pantheon of the classics of international law shortly, its sales will surely please its publisher too – its simultaneous publication as paperback and

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hardback clearly manifesting the confidence of the latter in the market performances of this sophisticated restatement of one of the most important gospels of international legal thinking. The idea that the doctrine of sources constitutes a foundational construction for the whole subject – and the whole discipline organised around it – is made clear in the very first chapter and repeated throughout the book. Indeed, SIL promptly discloses that it is premised on the idea that sources have a foundational nature in international law and perform existential functions. Sources are foundational because they are conducive to the status of law properly so-called as well as its systematic character. Sources also perform existential functions as they allow the ascertainment and cognisance of international legal rules. In that sense, SIL confirms that sources constitute a corner stone of both the thinking and the functioning of international law, a presupposition which few international lawyers would challenge, whether they construe the doctrine of sources as a set of identification criteria or a catalogue of law-making processes. The foregoing may sound as if SIL boils down to a mere restatement of one of the gospels of international lawyers and is meant to renew the faith of international lawyers in this foundational and existential mechanism. Yet, behind all its traditionalistic trappings, SIL can actually be read as a rebellious book. Indeed, it amounts to a call for defiance of the currently growing strand of international legal scholarship that, with the help of powerful theoretical artillery, seeks to ‘reconceptualise’ the doctrine of sources which it holds as functionally deficient and riddled by conceptual contradictions. In that sense, Thirlway is adamant that reconceptualisation, reform, or reinterpretation of the sources of international law are certainly no route international lawyers should go down. The driver for SIL’s insurgence against this highly theoretical reformist literature is multifold. First, there is a clear resentment by the author of SIL of sophisticated theoretical language which he takes as being obscure and impenetrable. In that sense, SIL can be construed as an uprising of the practice-minded scholar against the theorist. Second, and more importantly, the author of SIL sees no need to revamp the doctrine of sources as the gospel is seen as conceptually and empirically sound, for it is intelligible for courts and tribunals and supported by the practice of States. In this respect, SIL is also an uprising of the orthodox against the reformist. This means that, all in all, SIL profiles itself as an orthodox and practice-minded act of revolt against the – seemingly popular and glamorous – coterie of reformist theorists who populate international legal scholarship, some of them being duly accounted in SIL (chapter IX). The immense merit of Thirlway’s practice-minded and orthodox insurrection against this reformist and theoretical scholarship is that he does not dogmatically dismiss it as being heretic. In the last chapter of SIL, he takes pains to sketch it out and, albeit modestly, engage with it. This is remarkable, not least because there is clearly a gigantic sea of incommensurability separating those scholars – like the author of SIL – who faithfully abide by the doctrine of sources and those – like the author of this review – who seek to reflect upon it, test its usefulness, and unravel its contradictions. The latter have moved in the opposite direction of the former, for they have ceased to mechanically think about the sources of international law from the rule-based vantage point of Article 38 International Court of Justice Statute (ICJ Statute) and recognise that the sources, while still performing cardinal functions, can constitute many things at the same time: dynamic law-ascertainment techniques, a catalogue of the

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available law-making processes, or more simply argumentative techniques to generate authority of legal argument and provide a platform for the continuation of politics. Such an engagement – as Thirlway explicitly acknowledges in the preface – has clearly been hard-earned. This engagement, however minimal it may be, came with severe sufferance and hardship for the author of SIL. Yet, such effort allows SIL to convey an impression of awareness of the theoretical debates unfolding in international legal scholarship while also making SIL’s rebellion against these theoretical reformist enterprises more attractive. This inquisitiveness is most commendable. It spawns some reasonable hope that debates on such a foundational topic of international law can continue despite some inevitable conceptual, cognitive, functional, intergenerational, inter-professional, cultural, geographical, and ideological incommensurability. Each of the two above mentioned dominant traits – i.e. orthodoxy and practice-mindedness – of Thirlway’s refined account of the sources of international law warrant a few remarks. Attention is first paid to orthodoxy. One of the strongest expression of its orthodoxy is not only his claims that Article 38 ICJ Staute still constitutes the sufficiently determinate framework of reference to identify international law and that rules of international law are identified today according to the same criteria as those envisaged in the 1920s. SIL’s orthodoxy also infuses Thirlway’s unflinching support for the unity and universality of the doctrine of the sources of international law against the backdrop of contemporary claims of the contrary. It is praiseworthy that SIL dares to raise the question of whether the regime of identification provided by the doctrine of the sources has undergone a fragmentation. Indeed, SIL courageously investigates whether specific areas of international law operate according to different law-identification criteria than those provided by the traditional doctrine of the sources of international law, a question to which orthodox international lawyers would consciously turn a blind eye. Although SIL concludes that practice has not demonstrated any fissure in the unity and universality of the doctrine of sources, the mere fact that the book ventures to raise the question and explore some of those areas (chapter VIII) is itself laudable. The International Law Commission, in contrast, took a more dogmatic position on the matter, rejecting outright all claims about the possible existence of sub-regimes of sources (and thus different criteria of identification) without exploring in depth the practice in such specific areas of international law.1 Although the virtues of unity and universality are, in this case, undeniable – especially in terms of authority, there would probably be much to be said – and questioned – about the empirical merits of this claim, not only because the examination of those specific areas in SIL remains superficial, but also because the divergences currently witnessed in the application of the doctrine of sources in the practice of certain tribunals cannot merely be played down as mere

1 See International Law Commission, 65th session, First report of the Special Rapporteur, Sir Michael Wood, UN Doc.A/CN.4/663 ( 2013), id., 65th session, Second report of the Special Rapporteur, Sir Michael Wood, UN Doc.A/CN.4/672 (2014) See the comments by Jean d’Aspremont, Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions, Opinio Juris, available at: http://opiniojuris.org/2014/11/12/guest-post-amidstacademic-mania-identification-customary-international-law-ilc-operative-value-distinctions/(accessed on 11 January 2015).

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nuances in the application of the doctrine.2 Yet, SIL’s orthodoxy in this respect stands out for raising the question and taking a clear stance on it. The defence of orthodoxy attempted in SIL is probably less question-begging than the other above mentioned dominant trait of SIL, i.e. its practice-mindedness. Indeed, its elevating of practice as the ultimate foundation and validating parameter of the doctrine of sources leaves the reader with theoretical and epistemological questions which ought to be flagged here. First, it is the practice-mindedness of SIL that seems to justify the anti-theory posture embraced in most of the book (chapter IX). In that sense, SIL conveys the impression that the foundational nature of practice has economising virtues, for it allows one to disregard fundamental theoretical issues. This association between practice-mindedness and anti-theoretical attitude is reinforced by the first chapter of the book which devotes only eight pages to the ‘nature and operation of the sources’ on the occasion of which the very nature of sources is never fully explored. On the question of the very foundations of the doctrine of sources, the book reads as if it suffices to claim that sources are upheld by practice. It is true that this is a debate that is rarely considered by international lawyers who are used to living with the circular idea that the doctrine of sources is itself a set of rules identified through the very criteria that such doctrine is supposed to lay down.3 In that sense, SIL’s practice-mindedness epitomises the mainstream belief that practice is self-sustaining and constitutes an autonomous foundation for the sources of international law and, more generally, for international law as a whole.4 This is not the place to evaluate empirical strategies of convenience that are embraced by a majority of international lawyers. It is more relevant to formulate one remark on the metajustification of this sort of empiricism which similarly permeates SIL. According to the understanding of the foundations of sources advocated by SIL, the traditional sources of international law are deemed valid and superior to any alternative approach because they are vindicated by “what States in diplomatic exchanges assert to be their legal rights, or accept as their legal obligations, and the justifications offered for their positions”( 16). It must be acknowledged, however, that, in the eyes of this reviewer, such ultimate foundation is not self-evident. First because this practice is fragmentary. Second, what international lawyers can collect and feed into this practice is inevitably limited, for not everything is tangible even through the all-encapsulating descriptive categories deployed by international lawyers.5 Third, such a practice is itself the 2 See Jean d’Aspremont, Customary International Law as a Dance Floor (Part I), EJIL:Talk!, 14 April 2014, available at: http://www.ejiltalk.org/customary-international-law-as-a-dance-floor-part-i/ (accessed on 11 January 2015), (Part II) EJIL:Talk!, 15 April 2014, available at: http://www.ejiltalk.org/customaryinternational-law-as-a-dance-floor-part-ii/ (accessed on January 11 2014). See also Jean d’Aspremont, An Autonomous Regime of Identification of Customary International Humanitarian Law: Do Not Say What You Do or Do Not Do What You Say?, in: Raphaël van Steenberghe (ed.), Droit international humanitaire: un régime spécial de droit international?,(2013), available at SSRN: http://ssrn.com/abstract= 2230345. 3 On this debate, see Jean d’Aspremont, The Idea of ‘Rules’ in the Sources of International Law, British Yearbook of International Law 84 (2014), 103–130. 4 Ibid. 5

This inclination to deploy broad descriptive net to collect as much practice as possible is very conspicuous in relation to customary international law. On international lawyers’ hunt for practice constitutive

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result of performative descriptive frameworks which are themselves the result of normative choices. Practice does not exist as such but is always constructed.6 Eventually, the practice of States is not necessarily the very practice that ought to be decisive. For instance, from the perspective of British analytical jurisprudence, the practice that matters is not that of the addressees of the norms but rather that of the law-applying authorities.7 In that sense, the ultimate linchpin of the doctrine of sources defended by Thirlway is far from being uncontroversial and it is not certain that the confidence with which Thirlway anchors the traditional approach in the practice of States suffices to clinch the debate. There is more in SIL’s practice-mindedness that warrants attention. Indeed, the practicemindedness and SIL’s ultimate reliance on the practice of States as a meta-validating criteria conveys a very uniform and all-embracing understanding of international law-making. Between the lines, it is indeed possible to decrypt a concept of law whereby the making of secondary rules of international law ought to be similar to the making of primary rules. In other words, SIL bespeaks a – widely shared in contemporary scholarship – presupposition that the making of primary rules (rules of conduct) and the making of secondary rules (systemic rules) boil down to similar processes. As a result thereof, rules on sources are considered rules in the same sense as the rules which the sources are meant to identify. More specifically, by virtue of this understanding, the doctrine of sources is elevated into a set of customary rules which Article 38 of the ICJ Statute is supposedly declarative of. Such an account also entails that the practice that feeds into the making of primary rules of international law by virtue of the practice constitutive of custom or the consent constitutive of treaty is considered similar to the practice that informs the (rules on the) sources themselves. This conflation between the making of primary rules and the making of secondary rules inevitably brings us back to the question of the nature of the doctrine of sources which SIL, as was mentioned above, only briefly touches on. Indeed, if the making of primary rules and the making of secondary rules are conflated – as they seem to be in SIL – the doctrine of sources accordingly becomes a set for formal rules originating in State-centric processes, just like primary rules. In that sense, sources of international law are held to be the offspring of State-centric law-making processes similar to those processes that generate the primary rules of international law. This review is certainly not the place to take on that debate, for the main reason that SIL has – regrettably – left this question unexplored. It suffices, for the sake of this review, to stress that such a monolithic understanding of lawmaking at the international level is far from being self-evident despite its popularity among international lawyers.8 The previous paragraphs have sought to shed some light on the agenda and the main conceptual presuppositions which infuse the refined and sophisticated account of the sources of international law provided by SIL. It has been argued that many of them are reminiscent of of international lawyers at the expense of the distinction between practice and opinio juris, see Jean d’Aspremont, Customary International Law as a Dance Floor, Part II (note 2). 6 7

See Alasdair McIntyre, Whose Justice? Which Rationality? (1988), 333.

This is the argument I have developed in Formalism and the Sources of International Law which is reviewed in chapter IX (and is classified an ‘alternative’). See Jean d’Aspremont, Formalism and the Sources of International Law (2011). 8 Id. (note 3), 103–130.

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functional and conceptual postures that are dominant in contemporary international legal scholarship, especially when it comes to the reliance on State practice as an ultimate foundation or the defense of an all-embracing notion of international law-making that transcend the making of both primary rules and secondary rules. This brief review ends with a final remark on a rather unexpected theoretical insight made by SIL. Such a finding may look very counter-intuitive given the overall aversion of the author of SIL to theoretical inquiries and the self-declared anti-theory posture of SIL. Yet, it is undeniable that SIL comes with a specific understanding of legal positivism, a notion to which it refers on several occasions. In SIL, positivism is held as being anti-theoretical, voluntaristic, and empirical. Indeed, the book is held to be ‘not exclusively positivist’ because of chapter IX which offers a detour into theory. Likewise the book is said to vindicate a positivist understanding of law for it makes the consent of States the central tenet thereof. Third, it is positivist because it grounds the meta-validation of the doctrine of sources in the practice of States, as was discussed above. Each of these features of Thirlway’s understanding of positivism could justify extensive discussion, for it has been argued in recent literature that positivism cannot be deployed without huge theoretical and reflective tools, that the association between positivism and voluntarism is a myth, if not a utter non-sense, and that positivism cannot be grounded in the fake objectivism of a reified practice.9 Yet, this review is certainly not the place to delve into these theoretical debates, also because SIL clearly constitutes an attempt to keep those debates at bay. Furthermore, it would not be argumentatively justified to judge SIL from a perspective that it has consciously repudiated. It remains that SIL offers a picture of international legal positivism which deviates from some contemporary – theoretically loaded and reformist – accounts thereof. Here too SIL, despite its orthodox veneer, appears as a rather rebellious enterprise against the strong theoretical and reformists currents observed in international legal thought. In an international legal scholarship that is bound to remain confrontational, especially when it comes to its fundamentals, such remonstrance is all but commendable and, ironically, very refreshing. JEAN D’ASPREMONT Professor of Public International Law University of Manchester – School of Law

9

Jean d’Aspremont/Jörg Kammerhofer (eds.), International Legal Positivism in a Postmodern World ( 2014).

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Christian Walter/Antje von Ungern-Sternberg/Kavus Abushov (eds.): Self-Determination and Secession in International Law. Oxford University Press, Oxford 2014, 318 pages, ISBN 978-0-19-870237-5. The work under review presents a composition of articles on the state of the law of selfdetermination and secession. Driven by the question of what effects the Kosovo advisory opinion has had on the scope of the right to self-determination, the book provides an impressive collection of analytical chapters and case studies. The book displays various perspectives on the tension between territorial sovereignty and self-determination and the asymmetrical relationship between State actors and non-State actors. Traditional and modern visions of international law converge. Christian Walter, Antje von Ungern-Sternberg, and Kavus Abushov have chosen a topic, which had long been viewed as a matter of international law of purely academic value, as it only concerns so-called ‘frozen conflicts.’ Accordingly, the book gives us an overview of the status quo in relation to self-determination and secession in international law, drawing in large part on the report of the Aaland Island Commission in 1921 (League of Nations Council Doc. B7/21/68/106), the Friendly Relations Declaration of 1970, the Vienna Declaration and Programme of Action of 1993, and the Quebec Case of the Supreme Court of Canada of 1998.1 In addition, the book provides for an in-depth analysis of the right to secession in the case of Kosovo, the Commonwealth of States, Western Sahara, and Eritrea. In 2014, the subject of secession came centre stage with the conflict in the Crimea and put the question of a remedial right to secession outside of any colonial context, back to the frontline of public international law debates. Walter, in a postscript, analyses the arguments brought forward by all parties to the conflict and compares the conflict to the four other case studies in the book. This postscript completes the book and ensures that the book makes an up-to-date assessment of self-determination and secession in contemporary international law. The book is divided in three parts. Part I deals with general issues of self-determination and secession. After a short introduction, Walter in chapter 2, assesses the functions and impact of the Kosovo Advisory Opinion (“The Kosovo Advisory Opinion – What It Says and What It Does Not Say”). Many hoped that the International Court of Justice (ICJ) would take the Kosovo Advisory Opinion as an opportunity to shed some light on one of the most controversial problems of modern international law, namely the scope of the right to secession. When the Opinion was finally issued on 22 July 2010, those expectations were mostly disappointed; as the Court did not elaborate on the right to secession in cases of grave human rights violations. However, Walter does not join in the lamentation about the Opinion. He prioritises the dispute settlement function over the law-making function of the ICJ and therefore finds that the Opinion had positive effects. While the Advisory Opinion left open the hot topic of the right to secession it still helped the position of the Kosovars, both politically and factually. Walter argues in favour of judicial minimalism and states that the Court chose the right

1

Supreme Court of Canada, Reference Re Secession of Quebec, 2 SCR [1998] 217.

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approach for this thorny issue. He notes rather sensibly that “whenever the chances of meeting someone more than once are high, modesty is a virtue.” Joshua Castellino in his chapter 3 about “International Law and Self-Determination – Peoples, Indigenous Peoples, and Minorities” criticises the “simplistic decision to maintain colonial boundaries” that has had long term implications like numerous conflicts of “postmodern tribalism.” Although both Covenants name the right to self-determination first and foremost, States managed to minimise the impact of the right to a form of limited autonomy disappointing the aspirations of indigenous people and minorities. Moreover, the author regrets that the international debate focuses more on ‘territory’ than on ‘people’ or ‘identity;’ thus the question of ‘who’ exactly are the people continues to lack clarity. Joshua Castellino ends his contribution by calling on States to reconsider their restrictive politics when it comes to self-determination; he warns that “claims for self-determination do not disappear, but continue to grow in vehemence […].” In chapter 4 “The Role of Recognition and Non-Recognition with Regard to Secession,” Stefan Oeter presents a more critical assessment of the Kosovo Opinion than submitted by Walter in chapter 2. For Oeter, the Advisory Opinion is neither helpful nor makes a fruitful contribution to the resolution of the legal issues at stake. The price paid by the Court in order to speak with one voice was quite high, Oeter writes, as the Kosovo Opinion aggravated the tension over issues of recognition with regard to secession cases. Indeed it seemed like the Court even refused to address the proverbial elephant in the room (the existence of a remedial right to secession), hiding behind the unfortunate formulation of the question posed (legality of the declaration of independence). Oeter does what the court did not want to do by focusing on the question of whether a right to remedial secession is supported by State practice. He highlights the fact that most relevant cases have too much of an ad hoc character plagued by problems of moral hazard, and therefore constitute hard cases that make bad law. This is not surprising as the remedial right to secession is of course a tool made for extreme situations in which the survival of a group is endangered. However, when declaring independence the Kosovars were no longer cowering under menace. The same is true for the situation in Abkhazia and South Ossetia after the intervention of Russia in 2010. As recognition of newly independent States as it currently stands is rather a diplomatic and political act, Oeter argues in favour of a legal act of collective recognition as an instrument of conflict management. Collective recognition should be based on a normative value judgement about the emerging entities capability to cope with basic norms of the international community. As long as a collective procedure of concerted recognition has not been achieved, recognition of secessionist entities should be considered premature and hence a violation of the principle of territorial integrity and the prohibition of non-intervention. Antonello Trancredi’s chapter 5 (“Secession and Use of Force”) deals with the applicability of the prohibition of the use of force and the principle of non-intervention between States and non-State actors aiming for independence. He examines the Kosovo Opinion for arguments in favour of the applicability of the prohibition of the use of force within a State, and finds none to be convincing. Then he presents arguments both in favour and against the lawfulness of an intervention by a third State on the invitation of the central government. Most interesting in this context is the argument that the right to self-determination includes the right of

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‘peoples’ to choose and modify the political regime. If the purpose of a third State intervention is to destroy political rebellion the so-interpreted right to self-determination is interfered with even if that third State did so only on the invitation of the central government. This argument gives non-State actors a stronger right in order to strive for political change without being suppressed with the help of a third State. But Antonello Trancredi points out correctly that this interpretation presupposes a right to secession that does not exist in current international law, which still significantly favours States. Anne Peters, in chapter 6 (“The Principle of Uti Possidetis Juris – How Relevant is it for Issues of Secession?”), clarifies the notion of uti possidetis which is not a general principle of international law because it did not derive from national law. It is rather part of customary international law. Furthermore, she makes the important distinction between the uti possidetis principle and (legal) grounds of statehood as such. Uti possidetis is indifferent to the grounds of statehood. It is an aliud that only concerns the validity of boundaries. Hence, the appropriateness and lawfulness of its application to the dissolution of Yugoslavia and the Soviet Union does not depend on the legal qualification of the situation as one of secession or dismemberment, but rather all depends on the existence of internal territorial demarcations. Moreover, Anne Peters makes the point that even though there are well founded arguments against it, uti possidetis must also play a role outside of the colonial context, in particular in regard to the emerging views on remedial secession. Thomas Burri (“Secession in the CIS – Causes, Consequences, and Emerging Principles”) scrutinises the existence of a right to secession referring to the case studies of the book focusing on South Ossetia, Abkhazia, Nagorno-Karabakh, and Transnistria. The author acknowledges an external right to self-determination in case of widespread violations of human rights; however he thinks that the threshold for an external right to self-determination has not been crossed in the cases under scrutiny. The author concludes by criticising the binary approach to status in international law (something Philip Alston called “Not-a-Cat” Syndrome) and hints at a third option lying somewhere between the right to become an independent State and the denial of such a right: “an official international status similar to that of the State.” Regrettably, the details and concrete benefits of the existence of such a tertium and its distinction from the right to selfdetermination, which includes a right to autonomy, remain unclear. Part II presents case studies from the Commonwealth of independent States. In chapter 8 (“Transnistria”) Bill Bowring describes the frozen conflict of Transnistra and examines the claim to independence that is allegedly stronger than Kosovo’s claim. Although Transnistra held a referendum on the question of independence in 2006, in which voters overwhelmingly chose independence and the potential of future integration with Russia, Russia never recognised Transnistria as an independent State and continues to have effective control over Transnistria. Unfortunately, the contribution of Bowring could not consider the newest developments in regard to the Transnitrian application for accession to Russia in March 2014 and the strong political and military presence of Russia in Transnistria. Also the highly visible similarities to the situation in the Crimea could not be taken into account. The events clearly stand in a connected geopolitical context.

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Christopher Water in chapter 9 (“South Ossetia”) finds it difficult to see how international law can play a useful role, in the short term, in resolving the issues of self-determination and secession in the South Caucasus. The author identifies leaders’ obsession with status as the source for humanitarian catastrophes and advocates for a more nuanced approach on selfdetermination beyond the black and white perspective of secession/no-secession, demanding negotiations in good faith. Water makes a wise contribution to the rationalisation of the politics of self-determination. In chapter 10 (“Abkhazia”), Farhad Mirazeyev describes the parallels between the Abkhazian and the South Ossetian struggle for independence. Although Abkhazia was a constitutional unit of the USSR and always enjoyed certain autonomous administrative status, both South Ossetia and Abkhazia never fulfilled the requirements for the right to external selfdetermination under the Soviet Constitution. However, Russia recognised Abkhazia after defeating Georgia in the ‘Five-Day-War’ in 2008. The article shows the relationship between the right to self-determination on the one hand and the principle of uti possidetis in the changing context of dissolution and secession on the other hand. In chapter 11 (‘Nagorno-Karabakh’), Heiko Krüger analyses Nagorno-Karabakh’s right to secession under national and international law and its status as Republic of Nagorno-Karabakh. Nagorno-Karabakh has been a transit and settlement zone for many ethnic groups for thousands of years; however Armenians and Azerbaijanis hold different views on its ethnic history which eventually led to the outbreak of a war between these two States. The author identifies territorial affiliations rather than humanitarian reasons as the root cause for the conflict and therefore rejects the application of the remedial theory. Part III contains comparative studies about Kosovo, Western Sahara, Eritrea and the postscript dealing with the self-determination and secession of Crimea. James Summers (“Kosovo”) extensively analyses the historical developments that led to Kosovo’s declaration of independence in order to answer the question of Kosovo’s right to secession and independence. Kosovo as an autonomous province in the Republic of Serbia did not have an internal right to secession within Yugoslavia or Serbia. The author scrutinises a right to secession under the regime of Security Council Resolution 1244 and in international law generally including the problem already introduced by Oeter in Chapter 4 i.e. that the initial response to Serbia’s suppression was to install an international regime that lasted for over eight years. Thus, at the time of the declaration of independence the oppression no longer existed. In a brief final paragraph Summer elaborates on the legal status of Kosovo. He shows convincingly that both claims, Kosovo as a part of Serbia and Kosovo as an independent State have their legal flaws (for example in regard to effective control over the territory); however, both claims are not completely unjustified either. Considering the ICJ refusal to decide upon the question of Kosovo’s legal status, the legal ambivalence of the argument regarding the existence of a remedial right to secession and thus the profound legal uncertainty, it seems like an answer to the question can only be a political one. The situation of the Western Sahara is the only case with a colonial character and the only case under scrutiny in this book where a right to self-determination including the right to create a fully sovereign State exists pursuant to Resolution 1514 (XV) of the General Assem-

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bly. Nonetheless, Western Sahara is today 85% occupied and de facto administrated by Morocco. Sven Simon, in chapter 13, addresses the question of the status of West Sahara, the status of Morocco in relation to the territory of West Sahara, and the principles governing the use of natural resources in Non-Self-Governing Territories. In chapter 14 (“Eritrea”), Gregory Foy reminds us that Eritrea’s history is marked by various political configurations that make no real unity possible. Eritrea achieved independence only in 1993 after 30 years of a war of secession against Ethiopia. None of Eritrea’s claims for selfdetermination were based on national law, which is why the author focuses on claims to selfdetermination under international law. It should be noted that besides claims for secession due to its status as a colony (colonial right to secession), Eritrea additionally relies on a right to secession based on the remedial theory. A claim with only small chances of success as it cannot be backed by sufficient State practice. And finally, in the postscript (“Self-Determination, Secession, and the Crimean Crisis 2014”) Walter identifies similarities and differences between events in Crimea and the other case studies in the book. Whereas in chapter 2 he dealt with the Kosovo Opinion and the scope of international law in regard to a State’s disaggregation from within through non-State actor activity, the Crimea situation has a different character due to Russia’s involvement. Hence, the author addresses in particular the fact that Crimea aimed for integration into Russia and not for independence. Furthermore, he evaluates the arguments made by the parties involved concerning Crimea’s right to self-determination, the right to protect nationals abroad, and the principle of uti possidetis. The beauty of the book is the comprehensive analysis of various frozen conflicts including normative assessments and case studies all viewed in the light of the Kosovo Advisory Opinion of the ICJ. It is however unfortunate that the book had already been edited in 2014 before the Crimea crisis happened. The event led to a revival of debates about frozen conflicts in general and the relationship between the right to secession, the prohibition of intervention and use of force in order to support secessionist movements, and the prohibition of annexation in particular. The conflicts in Transnistria, South Ossetia, Abkhazia, and Nagorno-Karabakh can now be seen in the light of the manifested Russian imperialistic mind-set. Nonetheless, the recent events cannot be used to teach old dogs new tricks. The existence of a right to remedial secession remains unclear, the support of separatist movements can still amount to an illegal intervention, and the use of force by a State in favour of secession and the subsequent integration is still called annexation. The only thing that is new is that there is another frozen conflict. SINTHIOU ESTELLE BUSZEWSKI Research Associate Walther Schücking Institute for Public International Law

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Sharon Weill: The Role of National Courts in Applying International Humanitarian Law. Oxford University Press, Oxford 2014, xviii+221 pages, ISBN 978-0-19-968542-4. It is commonplace that enforcement is the Achilles heel of international humanitarian law (IHL). Therefore, observers have welcomed the increase in ex post control of IHL violations as a perspective for improvement. The increase is linked to a general trend of bringing foreign affairs issues before national courts. While at first sight such an approach might contribute to improving the overall compliance with international law, a closer look reveals a tension between a court’s task to effectively protect individual rights and its own functional limitations under the separation of powers doctrine. Traditionally, such concerns led to reductions in the standard of scrutiny, or even to a complete refusal of the exercise of judicial control. Pertinent justifications for such an approach involved the constitutional allocation of foreign policy decisions to the executive branch, the perceived need to ensure uniform statements of the different branches of government in international relations, as well as an absence of clear legal standards and pertinent factual knowledge on the side of the courts. In view of these tensions, can national courts really contribute to an effective enforcement of IHL? Sharon Weill addresses this question in her book on “The role of national courts in applying international humanitarian law.” The author identifies diverging approaches of national courts which she classifies through the lens of the slightly overused narrative that international law oscillates between apology and utopia. She starts from the assumption that “the de facto function of the court in IHL cases, which typically involve major political concerns, will not result in the normative application of the law.” Thus, she aims to deconstruct and “decipher properly their functional role” by evaluating the judicial decisions against a rule of law standard. For this purpose, she splits her book into five chapters. The first chapter analyses the ‘apologist role of national courts.’ Sharon Weill highlights the jurisprudence of the Israeli High Court of Justice (HCJ) on the law of military occupation in relation to the prolonged Israeli occupation of the Palestinian territories. She aims to demonstrate that the HCJ has interpreted Article 43 1907 Hague Regulations concerning the Laws and Customs of War on Land in a politicised manner, which enabled the Court to legitimise the policy of the Israeli government. She is particularly critical of the proportionality test which the HCJ transferred from Israeli administrative law to international humanitarian law. She argues that the test involves a structural bias involving a “colonial prism” as well as “an implicit principle according to which the protection of the rights of Israelis is more important.” She adds a further case study on the Belgrade War Crimes Chamber and describes both courts’ reasoning as a misuse of international law. Accordingly, Sharon Weill addresses alternatives through which courts might deal with the political constraints they face. Therefore, the second chapter is devoted to court decisions in which judges refrain from exercising jurisdiction on the basis of non-justiciability. Examples of these ‘avoidance doctrines’ include the United States(US) act of State doctrine, the political question doctrine, or the royal prerogative in the United Kingdom (UK). After outlining the principles and their exceptions in cases of grave violations of IHL the author provides a ‘contextual analysis’ of the application of these doctrines in particular in Alien Tort Statute cases.

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In the third chapter Sharon Weill describes the increasing willingness of national courts to enforce IHL. However, she considers this “normative role” of courts to be ambivalent. On the one hand, she holds that numerous decisions have contributed to an effective enforcement. Cases include the HCJ decisions on the conduct of hostilities, its Human Shields case (2005) and UK, US, and Canadian cases concerning detention in Guantanamo Bay. As reasons for this development, she identifies the increasing influence of (international) human rights law and jurisprudence on national courts with the UK being a case in point. National constitutional law might also facilitate access to a court. Moreover, she considers that the possibility to defer decisions to the discretion of the State enabled courts to dispense with avoidance doctrines. Such an approach can improve the quality of judicial review because courts may lay down legal standards which – if violated – allow for further judicial intervention. On the other hand, the author still sees a risk of courts contributing to legitimising illegal State action and names as an example the HCJ Targeted Killing case (2006). The fourth chapter deals with judicial decisions which aim at developing the law. Here, Sharon Weill focuses on the pros and cons of judicial activism on the basis of the Garzón case, concerning the failed attempt to prosecute crimes against humanity committed during the Spanish Civil War, and the Italian Ferrini case concerning State immunity. Her balanced approach becomes apparent in her argument against enforcement through national courts where the validity of peace agreements is at stake or intertemporal law must be taken into account. Thus, she argues that the Ferrini decision reflects a political choice rather than a legal determination. She bases this conclusion on a comparison with the Markovic case concerning a civil claim against Italy in relation to the 1999 bombing of a Belgrade radio station. Here Italian courts denied access on the basis of an Act of State doctrine. In the conclusion the author evaluates her findings against a rule of law standard. According to Sharon Weill, elements of this rule of law standard include independence and impartiality, access to the courts, as well as effective and equitable enforcement of the law. In view of these standards she considers not only that “the apologist application of IHL must remain outside the legitimate choices [...] because a court does not maintain its neutral position.” She is also critical of a utopian approach because “it reflects [...] a policy approach. Both modes of function do not correspond to the rule of law principles.” Sharon Weill pursues her aim to deconstruct and contextualise national court decisions stringently. She reveals a clear position of what courts should legitimately do when deciding in the context of armed conflicts, though not everyone might share her views. Thus, the book is thought provoking. At times it might have profited from a more technical approach. Since a court cannot easily ignore well-established procedural limits it might have been useful to directly compare decisions based on avoidance doctrines with decisions where jurisdiction was exercised within one national legal system. Thus it would have been possible to analyse the defining elements of the applicable national constitutional and procedural law more precisely and to evaluate the justifications for certain avoidance doctrines as well as the reasons for overcoming them in more detail. After all, the balance of the separation of powers can be very differently conceived under the rule of law paradigm. Moreover, contextualising security decisions within the general trend of judicial control of foreign affairs might have been fruitful. Still, the application of the political question doctrine in cases such as the US Targeted Killing

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case (2010) concerning the attempt to prevent the killing of a US citizen in Yemen seems hard to accept from a continental European law perspective. Thus, the book clearly demonstrates that the enforcement of IHL by national courts might not be as promising as one would have thought. The results of the book remind the reader that it is still indispensable to also guarantee meaningful international control on the judicial as well as on the political level. HEIKE KRIEGER Professor of Law Freie Universität Berlin

BOOKS RECEIVED (Inclusion in this list neither assures nor precludes later review.)

Amal Alamuddin/Nidal Nabil Jurdi/David Tolbert (eds.): The Special Tribunal for Lebanon: Law and Practice, Oxford University Press, Oxford 2014, xxi+316 pages. Sikander Ahmed Shah: International Law and Drones in Pakistan, Routledge, London 2014, xiii+247 pages. Kai Ambos: Treatise on International Criminal Law, vol. II: The Crimes and Sentencing, Oxford University Press, Oxford 2014, xliii+339 pages. Gerhard Beestermöller (ed.): Friedensethik im frühen Mittelalter: Theologie zwischen Kritik und Legitimation von Gewalt, Nomos/Aschendorff, Baden-Baden/Münster 2014, 327 pages. David S. Berry: Caribbean Integration Law, Oxford University Press, Oxford 2014, xxxi+ 466 pages. Armin von Bogdandy/Ingo Venzke: In Whose Name? A Public Law Theory of International Adjudication, Oxford University Press, Oxford 2014, xxxiii+269 pages. Adrian Briggs: The Conflict of Laws (3rd ed.), Oxford University Press, Oxford 2013, xxxvii+ 393 pages. Ioana Cismas: Religious Actors and International Law, Oxford University Press, Oxford 2014, xxvi+348 pages. Carlos Espósito/Yuefen Li/Juan Pablo Bohoslavsky: Sovereign Financing and International Law: The UNCTAD Principles on Responsible Sovereign Lending and Borrowing, Oxford University Press, Oxford 2013, xix+403 pages. Dieter Fleck (ed.): The Handbook of International Humanitarian Law (3rd ed.), Oxford University Press, Oxford 2013, lii+714 pages.

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Joanne Foakes: The Position of Heads of State and Senior Officials in International Law, Oxford University Press, Oxford 2014, xxiv+228 pages. Gleider I. Hernández: The International Court of Justice and the Judicial Function, Oxford University Press, Oxford 2014, xix+330 pages. Natalie Klein (ed.): Litigating International Law Disputes: Weighing the Options, Cambridge University Press, Cambridge 2014, xli+490 pages. Matthew H. Kramer: Torture and Moral Integrity, Oxford University Press, Oxford 2014, xv+339 pages. Dalia Nassar (ed.): The Relevance of Romanticism: Essays on German Romantic Philosophy, Oxford University Press, Oxford 2014, xv+344 pages. Cesare P. R. Romano/Karen J. Alter/Yuval Shany (eds.): The Oxford Handbook of International Adjudication, Oxford University Press, Oxford 2014, xcii+975 pages. John G. Sprankling: The International Law of Property, Oxford University Press, Oxford 2014, xlii+380 pages. Stefan Talmon: The Occupation of Iraq, Vol. II: The Official Documents of the Coalition Provisional Authority and the Iraqi Governing Council, Hart Publishing, Oxford 2013, xlvii+1524 pages. Emmanuelle Tourme-Jouannet: What is a Fair International Society? International Law Between Development and Recognition, Hart Publishing, Oxford 2013, x+238 pages.