German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 59 (2016) [1 ed.] 9783428553570, 9783428153572

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VOLUME 59 · 2016

DUNCK ER & HUMBLO T · BERLIN

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 59 · 2016

LIST OF PEER REVIEWERS JEAN D’ASPREMONT • University of Manchester

BAS ROMBOUTS • Tilburg University

BARBARA FICK • Notre Dame University

SVETLANA YAKOLEVA • Vanderbilt University

STEFAN GRILLER • University of Salzburg ULRICH PETERSMANN • European University Institute

INGO VENZKE • University of Amsterdam

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 59 · 2016

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: ANDREAS VON ARNAULD / KERSTIN VON DER DECKEN Honorary Editor: JOST DELBRÜCK Assistant Editors: AVRIL RUSHE / WIEBKE STAFF Editorial Assistants: NINA BRANDT / MAREIKE NÜRNBERG / DAVID SCHENK / CATHARINA UEKERMANN Layout and Production: ANDREA NEISIUS / SYLVIA WEIDENHÖFER

ADVISORY BOARD OF THE WALTHER SCHÜCKING INSTITUTE CHRISTINE CHINKIN London School of Economics JAMES CRAWFORD International Court of Justice, The Hague

ALLAN ROSAS Court of Justice of the European Union, Luxemburg

LORI F. DAMROSCH Columbia University

BRUNO SIMMA Iran-United States Claims Tribunal, The Hague

RAINER HOFMANN University of Frankfurt

DANIEL THÜRER University of Zürich

FRED L. MORRISON University of Minnesota

CHRISTIAN TOMUSCHAT Humboldt University of Berlin

EIBE H. RIEDEL Geneva Academy of International Humanitarian Law and Human Rights

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. © 2017 Duncker & Humblot GmbH, Berlin Printed by Druckteam, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-15357-2 (Print) ISBN 978-3-428-55357-0 (E-Book) ISBN 978-3-428-85357-1 (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 Paris Climate Agreement JORGE E. VIÑUALES: The Paris Agreement on Climate Change: Less is More . . . . . . .

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FOCUS Frozen Conflicts: How Does PIL Deal with Them? THOMAS D. GRANT: Three Years After Annexation: Of ‘Frozen Conflicts’ and How to Characterise Crimea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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MILENA STERIO: Self-Determination and Secession Under International Law: Nagorno-Karabakh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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CHRISTOPHER J. BORGEN: Moldova: Law and Complex Crises in a Systemic Borderland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 ENRICO MILANO: Unfreezing and Settling the Conflict over Kosovo . . . . . . . . . . . . . . . 163 JUAN SOROETA: The Conflict in Western Sahara After Forty Years of Occupation: International Law versus Realpolitik . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 NIKOS SKOUTARIS: The Paradox of the Europeanisation of Intrastate Conflicts . . . . . 223

GENERAL ARTICLES ANDREAS KULICK: From Problem to Opportunity?: An Analytical Framework for Vagueness and Ambiguity in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

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LANDO KIRCHMAIR: What Came First: The Obligation or the Belief? A Renaissance of Consensus Theory to Make the Normative Foundations of Customary International Law More Tangible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 PAUL BEHRENS: The Crime of Genocide and the Problem of Subjective Substantiality 321 PHILIPP JANIG AND SARA MANSOUR FALLAH: Certain Iranian Assets: The Limits of Anti-Terrorism Measures in Light of State Immunity and Standards of Treatment 355 CHRISTOPH SCHEWE: Clearing Up? Transparency in the Dispute Settlement of International Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 LILIAN RICHIERI HANANIA: The Social Dimension of Sustainable Development in EU Trade Agreements: Strengthening International Labour Standards . . . . . . . . . . . . . . 435

GERMAN PRACTICE THOMAS GIEGERICH: In Germany International Law may be Honoured in the Breach: The Federal Constitutional Court Gives the Legislature Carte Blanche to Override Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 FELIX TELSCHOW: “Gliding O’er All”: Human Dignity and Constitutional Identity in the Federal Constitutional Court’s Recent Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . 499 MAREIKE NÜRNBERG AND DAVID SCHENK: Deployment of Soldiers for the Protection of Nationals Abroad and Inner-State Justification: The German Federal Constitutional Court’s Decision on the Operation of German Military in Libya . . . . . . . . 517 BERENIKE SCHRIEWER: The German Federal Constitutional Court’s First Reference for a Preliminary Ruling to the European Court of Justice: A 2016 Follow-Up . . . . 533 ISABELL BÖHM: Genocide in Rwanda: The Judgment of Frankfurt’s Higher Regional Court Against a Former Rwandan Mayor of 29 December 2015 . . . . . . . . . . . . . . . . 541 JENS KAISER: German Chairmanship of the Organization for Security and Cooperation in Europe in 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555 AVRIL RUSHE AND JOSCHKA PETERS-WUNNENBERG: Are the Maghreb States ‘Safe’?

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SEBASTIAN THO PESCH: Finding a Solution Without Addressing the Problem: The 2014 Ems-Dollard Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593 MARCUS SCHLADEBACH: The Germanwings Disaster: Legal Debates and Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603 THOMAS HOPPE: The German Federal Court of Justice Marks a Possible Way for the CJEU’s Preliminary Ruling: The Compatibility of Investment Arbitration Clauses in Intra-EU Bilateral Investment Treaties with European Union Law . . . . . . . . . . . 615

BOOK REVIEWS Michael Bowman/Peter Davies/Edward Goodwin (eds.): Research Handbook on Biodiversity and Law (VAN DOORN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627 Eric de Brabandere, Investment Treaty Arbitration as Public International Law – Procedural Aspects and Implications (HOPPE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631 Stuart Casey-Maslen/Andrew Clapham/Gilles Giacca/Sarah Parker: The Arms Trade Treaty: A Commentary (BRANDES) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634 Alice Edwards/Laura van Waas (eds.): Nationality and Statelessness under International Law (FORLATI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636 Yves Haeck/Oswaldo Ruiz-Chiriboga/Clara Burbano-Herrera (eds.): The Inter-American Court of Human Rights: Theory and Practice, Present and Future (STÖCKLE) . . . 638 Pierre Hauck/Sven Peterke (eds.): International Law and Transnational Organised Crime (SALVADEGO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640 Gro Nystuen/Stuart Casey-Maslen/Annie Golden Bersagel (eds.): Nuclear Weapons under International Law (SCHÖBERL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645 Ben Saul (ed.): The International Covenant on Economic, Social and Cultural Rights. Travaux Préparatoires 1948–1966 (ROEDER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648 Yuval Shany: Questions of Jurisdiction and Admissibility before International Courts (GOZIE OGBODO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650

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Malcolm Shaw: Rosenne’s Law and Practice of the International Court 1920–2015 (ZIMMERMANN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653 Katja Weigelt: Die Auswirkung der Bekämpfung des internationalen Terrorismus auf die staatliche Souveränität (How the war against international terrorism affects State sovereignty) (MÜHREL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656

FORUM

PARIS CLIMATE AGREEMENT

The Paris Agreement on Climate Change: Less is More JORGE E. VIÑUALES

I. Introduction One of the difficulties of writing about climate change governance is that one must address a moving target. Despite the wide impression of inaction or, at best, of action in slow motion, the negotiations move at such a hectic pace, often focusing on what to the outside world appear to be mere details but, on closer scrutiny, hard fought and highly controversial details, that it is difficult to keep abreast. Such speed explains perhaps the profusion of writings over technicalities or the sometimes unconsidered attempts at launching new – and soon old – ideas, expressions, buzzwords, anecdotes. Conversely, it also explains the thriving literature on climate change policy broadly understood, encompassing legal aspects. The polyphony or even the cacophony in the literature is alas the price to pay for a powerful and creative body of analysis of climate policy. Fortunately, the target does not move in an entirely random fashion. When one waits until the fog has somewhat dissipated and takes another look at what is still there, much remains,1 and the contours of the topography appear better delineated. Harold Samuel Professor of Law and Environmental Policy, University of Cambridge and Director of the Cambridge Centre for Environment, Energy and Natural Resource Governance (C-EENRG). 1

Within the vast literature written in English on the international law of climate change see the following: Books/Studies: Joanna Depledge, Tracing the Origins of the Kyoto Protocol: An Article-byArticle Textual History, Technical Paper, FCCC/TP/2000/2 (2000); Farhana Yamin/Joanna Depledge, The International Climate Change Regime (2004); David Freestone/Charlotte Streck (eds.), Legal Aspects of Carbon Trading (2009); William C. G. Burns/Hari Osofsky (eds.), Adjudicating Climate Change (2012); Richard Lord et al. (eds.), Climate Change Liability (2012); Joyeeta Gupta, The History of Global Climate Governance (2014); Jacqueline Peel/Hari Osofsky, Climate Change Litigation (2015); Cinnamon Carlarne/Kevin Gray/Richard Tarasofsky (eds.), The Oxford Handbook of International

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After a very preliminary examination of the Paris Agreement,2 shared shortly after the

Climate Change Law (2016); Geert Van Calster/Wim Vandenberghe/Leonie Reins (eds.), Research Handbook on Climate Change Mitigation Law (2015); Daniel Farber/Marjan Peeters (eds.), Climate Change Law (2016); Robert Stavins/Robert Stowe (eds), The Paris Agreement and Beyond: International Climate Change Policy post 2020 (2016); Daniel Bodansky/Jutta Brunnée/Lavanya Rajamani, International Climate Change Law (2017); Articles/Chapters: Daniel Bodansky, The United Nations Framework Convention on Climate Change: A Commentary, Yale Journal of International Law 18 (1993), 451; Lavanya Rajamani, From Berlin to Bali and Beyond: Killing Kyoto Softly? International and Comparative Law Quarterly (ICLQ) 57 (4) (2008), 909–939; id., Addressing the Post-Kyoto Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime, ICLQ 58 (4) (2009), 803; id., The Making and Unmaking of the Copenhagen Accord, ICLQ 59 (3) (2010), 824; id., The Cancun Climate Change Agreements: Reading the Text, Subtext and Tealeaves, ICLQ 60 (2) (2011), 499; id., The Durban Platform for Enhanced Action & the Future of the Climate Regime, ICLQ 61 (2) (2012), 501; id., The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations, Modern Law Review 78 (2015), 826; id., Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics, ICLQ 65 (2) (2016), 493; id., The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations, Journal of Environmental Law 28 (2016), 337; Special Issue of Climate Law on the Paris Agreement, 6 (2016) (including contributions from Meinhard Doelle, M.J. Mace, Sebastian Oberthür/Ralph Bodle, Christina Voigt/Felipe Ferreira, Alexander Zahar, Harro van Asselt, Francesco Sindico, Benoit Mayer, Maxine Burkett, Torbjørg Jevnaker, David A. Wirth, Joyeeta Gupta, Marjan Peeters); Dossier devoted by the Journal of Environmental Law to climate change adjudication, 28/1 (2016) (including articles by Elizabeth Fisher/Eloise Scotford, Lord Robert Carnwath JSC, Brian J. Preston, Philippe Sands) ; Special Issue of Review of European Community and International Law (RECIEL) on the Paris Agreement, 25/2 (2016) (including articles from Daniel Bodansky, Sandrine Maljean-Dubois, Christina Voigt, Yulia Yamineva, Annalisa Savaresi, M. J. Mace/Roda Verheyen, Beatriz Martinez Romera, Nicholas Chan, Sander Chan/Clara Brandi/Steffen Bauer); Special issue of Climate Policy, 17 (1) (including contributions from Jorge Viñuales/Joanna Depledge/David M. Reiner/Emma Lees, Richard Kinley, Niklas Höhne et al., Anuja Sharma, Isabel Hilton/Oliver Kerr, Emma Lees, Edwards et al, Luke Kemp, John A. Mathews); Daniel Bodansky, The Paris Agreement: A New Hope?, American Journal of International Law (AJIL) 110 (2016). 2 ‘Adoption of the Paris Agreement’, Decision 1/CP.21, 12 December 2015, FCCC/CP/2015/L.9 (‘Decision’), paras. 2–3. The Paris Agreement is appended as an Annex to the Decision. The agreement, technically a treaty under the international law of treaties (although it may not be qualified as such under some constitutional orders), was signed by 175 States on 22 April 2016. See ‘List of representatives to High-level signature ceremony’, available at: http://newsroom.unfccc.int/paris-agreement/175-statessign-paris-agreement/ (accessed on 28 August 2016). The authentic version of the Paris Agreement (hereafter ‘Paris Agreement’) is available at: http://unfccc.int/files/essential_background/convention/ application/pdf/english_paris_agreement.pdf (accessed on 28 August 2016). Pursuant to Article 21 (1), the Agreement required to enter into force ratification by ‘at least 55 parties to the Convention [i.e. the UNFCCC] accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions’. These thresholds were reached in early October 2016 and the Agreement entered into force on 4 November 2016. See http://unfccc.int/paris_agreement/items/9485.php (accessed on 8 November 2016). Of particular note is the ratification by the world’s two main emitters, China and the United States (US). On 1st June 2017, the US Republican President announced that the US would withdraw from the Paris Agreement. Legally, however, this can only be done if certain conditions are respected. Thus, at the time of writing, the US are still a Party to the Paris Agreement.

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text of the Agreement became public,3 the writing of this article for the German Yearbook of International Law has given me the opportunity to offer more general observations about this important instrument and what it represents more broadly from the perspective of international and – to some extent – transnational4 and comparative law.5 With the benefit of hindsight, I believe that the significance of the Paris Agreement can be pinned down to a foundational compromise, whereby the expansion of the geographical and substantive scope of the instrument was made possible in exchange for significant de-internationalisation. Whether the price paid is high or low will very much depend on what is effectively done at the domestic and transnational levels. Some may say that internationalisation presents, in all events, no particular advantage. I may have subscribed to such a view, but after seeing the clear impact on mitigation not only of the Montreal Protocol6 but also of the unloved Kyoto Protocol,7 I am more inclined to give credit to top-down – international – climate regulation. But, realistically, there are cases where less is more and the Paris Agreement is, in my view, one such case.

See Jorge E. Viñuales, The Paris Climate Agreement: An Initial Examination, in CEENRG Working Papers No. 6, 16 December 2015. 3

4

See Harriet Bulkeley et al., Transnational Climate Change Governance (2014).

See Michael Mehling, The Comparative Law of Climate Change: A Research Agenda, RECIEL 24 (2015), 341. More generally, see Emma Lees/Jorge E. Viñuales (eds.), The Oxford Handbook of Comparative Environmental Law (2018). 5

6 Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, UNTS 1522, 3. By 2005, the production and consumption of all ozone-depleting substances had been cut down by 95%. See Danielle Fest Grabiel, ‘Crucial Crossroads’, in Our Planet Magazine, United Nations Environmental Programme (UNEP), (2007), 20, available at: http://www.unep.org/PDF/OurPlanet/2007/ sept/EN/ARTICLE7.pdf (accessed on 28 August 2016). And these cuts have had a positive impact on the restoration of the ozone layer. See Martyn P. Chipperfield et al., Nature Communications 6 (2015), 7233. 7 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, UNTS 2303, 148. According to a recent study, all 36 countries of Annex B that fully participated in the Kyoto Protocol (excluding the US and Canada) were in compliance with their targets in the first (2008–2012) commitment period. Of these, only nine emitted more than their initial target and had to rely on the flexible mechanisms (acquiring carbon credits) to meet their commitments. Such a finding holds even when so-called ‘hot air’ (i.e. the amount of emissions made available by the contraction of the economies in transition, hence not resulting from genuine mitigation action) and land policies, so-called ‘LULUCF’ (i.e. which may remove carbon and could be taken into account in the overall allowance) are taken into account. But it would not have been achieved if the US and Canada are taken into account. See Igor Shishlov/Romain Morel/Valentin Bellassen, Compliance of the Parties to the Kyoto Protocol in the first commitment period (2016) Climate Policy 16 (2016).

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In order to keep my narrative as self-contained as possible, I will briefly introduce the negotiation process that led to the adoption of the Paris Agreement as well as some important political considerations (II.), before turning to its legal architecture, particularly as regards its goals, action areas and implementation techniques (III.). My concluding remarks (IV.) will pull together the different threads unwound throughout the article and link the architecture of the Paris Agreement to the broader levers of human action.

II. The Negotiation Process Leading to the Paris Agreement A. Of ‘Roads’ and Other Storylines

Virtually all accounts of the Paris Agreement, even op-eds and blog contributions, make reference to the ‘road’ to Paris. This is justifiable because there is a significant gap between the obscure jargon used by the ‘initiated’ and the knowledge that the general public, and I include here international lawyers unfamiliar with climate negotiations, may command. Indeed, terms that are obvious to any observer of climate negotiations, such as the ‘Durban platform’, ‘CBDR’, ‘LULUCF’ or ‘INDCs’ may be quite obscure to the non-initiated. However, such terms abound in climate discussions and many arise from the long and detailed negotiation process that has led to the adoption of the Paris Agreement. It is therefore useful to provide here a short storyline: the procedural road to Paris. At the same time, remaining at this detailed yet superficial level would prevent the reader from discerning some broader political trends that have enabled the conclusion of the Paris Agreement. Some reference, even brief, to these deeper roots is important not only to understand how it became possible to reach an agreement in Paris but also to assess the actual contents of the Paris Agreement and its prospects. In what follows, I begin with a hopefully self-contained discussion of the negotiation process culminating in COP-21, and then move on to some wider trends underpinning and enabling this process, particularly as regards the position of the two main emitters, China and the United States (US).

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B. Climate Negotiations at the International Level

The legal framework initially adopted in 19928 to address the increasing evidence of a human-induced interference with the climate system introduced a distinction between Annex I (developed countries and countries in transition to a market economy) and non-Annex I countries (developing countries, including some of today’s main emitters of greenhouse gases). This distinction reflected the broader imperative of differentiation among countries on the basis of their historical responsibilities and different capabilities, which was enshrined in Principle 7 Rio Declaration on Environment and Development9 as well as in Article 3 (1) United Nations Framework Convention on Climate Change (UNFCC). Over the years, and particularly after the 1997 Kyoto Protocol10 turned the UNFCCC distinction between Annex I and non-Annex I countries into what some have called a ‘Chinese wall’ between countries with and countries without quantified obligations, the main challenge facing the climate change regime has been to bring major developing countries (China, India, Brazil, South Africa, Indonesia, Korea, Mexico and others11) under some form of emission reduction commitments comparable to those applicable to developed countries. Indeed, such non-Annex I countries have no quantified emission-reduction obligations under the Kyoto Protocol and that, in turn, rendered it politically difficult for developed countries, and particularly the US, to enter the bargain.12 The result was that, as of 2012, the commitments 8 United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1771, 107 (UNFCCC). 9 Rio Declaration on Environment and Development, 13 June 1992, UN Doc. A/CONF.151/26 (Rio Declaration). See Philippe Cullet, Principle 7: Common but Differentiated Responsibilities, in: Jorge E. Viñuales (ed.), The Rio Declaration on Environment and Development: A Commentary (2015), 229–44. 10

Kyoto Protocol (note 7). Compare Article 3 and Annex B (for Annex I countries) with Article 10 (for non-Annex I countries). 11

For an estimation of the emissions of each of these (and other) countries, see: www. globalcarbonatlas.org (accessed on 28 August 2016). By way of illustration, in 2014, among the top twenty emitting countries, the following non-Annex I countries were included: China (1st), India (3rd), Indonesia (7th), Iran (8th), Saudi Arabia (9th), South Korea (10th), Brazil (12th), South Africa (13th), and Mexico (14th). 12 In the case of the Kyoto Protocol, the Byrd-Hagel Resolution adopted by the US Senate by 95 votes to 0 objected to the agreement on the basis that it did not contain quantified targets for nonAnnex I (non-Annex B) countries. See David Wirth, Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement, Climate Law 6 (2016), 152, 162.

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under the Kyoto Protocol covered only 24% of global annual emissions,13 whereas the main emitters, including China and the US, which together account for some 40% of global annual emissions, did not have any quantified emission reduction commitments. The first significant attempt to address this issue was made in 2007 at the UNFCCC Conference of the Parties (COP) held in Bali, Indonesia, which launched a negotiation process that was expected to lead to the adoption of a new treaty in Copenhagen, at COP-15 (2009).14 This process, entrusted to an Ad Hoc Working Group on Long-term Cooperative Action (‘AWG-LCA’) was unsuccessful in its end result and came to an end shortly after the 2011 Durban COP, when the negotiation mandate that led to the new Paris Agreement was launched. However, several steps made under the AWG-LCA, including the unloved Copenhagen Accord15 and the subsequent Cancun Agreements,16 were very influential in shaping the Paris Agreement. The definition of a specific target (both the 2°C and the 1.5°C targets), the expansion of mitigation responsibility beyond developed countries, the increased focus on adaptation and finance and, above all, the broad allocation between action at the domestic level and measuring, verification and reporting at the international level appear already in the Copenhagen Accord, and they were further developed in the Cancun Agreements. The second attempt at bridging the obligations gap between developed and developing countries was made at the COP-17 held in Durban, South Africa, in 2011. The key compromise reached in Durban – in extremis between the Indian and 13 This figure excludes the emissions of the US, which never ratified the Protocol, and of Canada, which left the Protocol in 2011. See Shishlov et al. (note 7), 2. 14 Bali Plan of Action, Decision 1/CP.13, 14 March 2008, UN Doc. FCCC/CP/2007/6/Add.1. On the origins of this process see Rajamani (2008) (note 1). Over the years, Rajamani has followed closely and participated in climate negotiations, commenting on the results of different COPs and thus, leaving a valuable analytical record of these processes. 15

Copenhagen Accord, Decision 2/CP.15, 30 March 2010, UN Doc. FCCC/CP/2009/11/Add.1 (the decision merely ‘takes note’ of the Copenhagen Accord, a wording that was retained to highlight that this instrument was reached by a limited number of State parties outside from – albeit in parallel to – formal UNFCCC negotiations and, hence, was not ‘adopted’ by the COP). On the Copenhagen Accord, which in fact set the conceptual matrix of the Paris Agreement, see Daniel Bodansky, The Copenhagen Climate Change Conference – A Postmortem, AJIL 104 (2010), 230. 16 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Decision 1/CP.16, 15 March 2011, Doc. FCCC/CP/ 2010/7/Add.1.

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the EU negotiators – consisted of extending the operation of the Kyoto Protocol to a second commitment period,17 with the ensuing preservation of rigid differentiation until 2020, in exchange for a new negotiation mandate, the ‘Durban Platform for Enhanced Action’ (‘ADP’)18 which was expected to and did lead to a ‘protocol, another legal instrument or an agreed outcome with legal force’ ‘applicable to all’ in 2015 at the Paris COP-21.19 Significantly, the Durban Platform made no reference in its text to the principle of common but differentiated responsibilities and respective capabilities (CBDR),20 although its ‘application to all’ was preceded by the terms ‘under the Convention’, which placed the entire regime arising from the negotiations under the CBDR principle. Also, the substantive scope of the Durban Platform encompassed a wide array of areas, including ‘mitigation, adaptation, finance, technology development and transfer, transparency of action and support, and capacitybuilding’.21 But different countries and groups had widely different views on the relative importance of each of these areas as well as on how to address them from a legal perspective. In hindsight, the level of flexibility afforded by the broad formulation of the negotiating mandate was an important component of the final outcome, given the political but also the legal variables at play in the negotiation.

C. Climate Negotiations and Domestic Politics

The broad context within which the Paris Agreement can be understood involves not only the parameters of the Durban Platform, but also and more importantly the socio-economic, political and legal boundaries within which the main emitters of 17 Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its sixteenth session, Decision 1/CMP-7, 15 March 2012, Doc. FCCC/KP/CMP/2011/10/Add.1. Followed the next year by the so-called ‘Doha Amendment’: Amendment to the Kyoto Protocol pursuant to its Article 3, paragraph 9 (the Doha Amendment), Decision 1/CMP-8, 28 February 2013, Doc. FCCC/KP/CMP/2012/13/Add.1. 18

‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’, Decision 1/CP.17, 15 March 2012, Doc. FCCC/CP/2011/9/Add.1. On this instrument see Rajamani (2012) (note 1). 19

Durban Platform (note 19), para 2.

20

In the climate change context, the acronym CBDR-RC is sometimes used. For the sake of brevity and integration into the wider net of environmental instruments, I use CBDR. 21

Durban Platform (note 19), para 5.

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greenhouse gases, particularly the US, China, India and the European Union (EU) had to operate to reach an agreement. It is important to note that, despite the fact that the lion’s share of the attention from commentators has focused on these countries or regional blocks, many other stakeholders played a prominent role in the negotiations, particularly small island development nations and a number of developing countries. Moreover, the dynamics generated by COP-21 beyond the formal negotiation processes, including the initiatives taken by cities, regions, private companies, civil society and other ‘non-Party stakeholders’ deserves pride of place.22 My purpose in the next paragraphs is to provide some background regarding certain political and strategic considerations that largely explain certain technical aspects of the Paris Agreement, focusing on the key political enabler of this instrument: the Sino-American understanding that culminated in the ratification of the Paris Agreement by both countries in early September 2016. Analysing negotiation strategies in light of domestic politics entails the risk of remaining at the mere anecdotal level, however interesting such anecdotes may be. There was, for example, much discussion regarding a single detail (the difference between the word ‘shall’ and ‘should’ in draft Article 4 (4)) that almost derailed the entire negotiation due to staunch opposition of the US delegation.23 Indeed, reacting to the wording of the final text introduced by the COP-21 Presidency, US Secretary of State John Kerry placed an ultimatum conditioning US’ endorsement of the agreement on the use of the term ‘should’ instead of ‘shall’ in Article 4 (4): “[w]e cannot do this and we will not do this [accepting the ‘shall’]. And either it changes, or President Obama and the US will not be able to support this agreement”.24 Such anecdotes certainly appeal to the popular imagination conveying an image of climate agreements as complex and impenetrable documents that can only be understood by the initiated. But the reasons for Kerry’s reaction, however complex, can be clearly explained to the non-initiated. Given the hostility of the Republican party to commit the US to a climate deal, the Obama administration sought to craft an instrument that could be binding for the US 22

See Harriet Bulkeley et al., Transnational Climate Change Governance (2014).

Melissa Eddy, At Climate Talks, a Few Letters That Almost Sank the Deal, New York Times, 16 December 2015, available at: www.nytimes.com (accessed on 30 August 2016). 23

24

Statement cited in Eddy (note 23).

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without requiring the (highly unlikely) consent of the Senate. Such an approach was also in the interest of other countries that wanted the US to formally be a party to the new instrument, to avoid repeating the experience of the Kyoto Protocol. In order to do so, the negotiation position of the US focused on developing an instrument that could be characterised as an ‘executive agreement’ rather than a ‘treaty’ under the US constitution.25 To make this possible, the negotiators developed a legal strategy whereby the content of any targets declared by the US at the international level would itself not be internationally binding (although the obligation to declare such targets may) but only domestically binding, under the already existing authority given by a variety of laws, such as the Clean Air Act.26 If one considers the authority to act legally at the domestic level as a ‘resource’, the US delegation was simply developing a strategy to put this resource to its full use so as to be credible in international negotiations. In point of fact, the adoption in the run-up to the Paris Conference of the ambitious Clean Power Plan (CPP) 27(now stayed by the US Supreme Court28 and with unclear prospects after the election of a republican candidate to the US Presidency), which requires electricity generators to reduce their emissions under the authority of the Clean Air Act, was a key display of both willingness and ability to commit, while at the same time limiting exposure to a Republican backlash. Using ‘shall’ instead of ‘should’ in the sentence ‘[shall] continue taking the lead by undertaking economywide absolute emission reduction targets’ in draft Article 4 (4) would have defeated the Obama administration’s strategy because there is no domestic legal basis for the US to adopt ‘economy-wide absolute emission reduction targets’ (only sectorial legal bases in different statutes and other sources of authorities) and, hence, Article 4 (4) would have been interpreted as an international obligation – rather than one relying on domestic authority – requiring, as such, Senate approval.29 However astute, such 25

Note that both treaties and executive agreements are deemed to be ‘treaties’ under international law, in accordance with the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT), and hence binding on the US. But the domestic approval process is organised differently under Article II, section 2 US Constitution, which requires the ‘advice and consent’ of the Senate for ‘Treaties’. 26

Clean Air Act, 42 U.S.C. § 7401 et seq. (1970). For a detailed explanation see Wirth (note 12).

27

Environmental Protection Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64, 662 (23 October 2015). 28

Order in pending case, US Supreme Court, West Virginia et al v. EPA et al, 577 U.S.

At the conclusion of the Paris Agreement, US Secretary of State John Kerry stated that the Paris Agreement ‘doesn’t need to be approved by the Congress because it doesn’t have mandatory targets for reduction, and it doesn’t have an enforcement compliance mechanism’, cited in Wirth (note 12), 168. 29

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strategies have potential weaknesses. One has already been mentioned in relation to the stay of the CPP, which is very important for the achievement of the US’ emission reduction targets. Two others are more obvious. On 1 June 2017, the recently-elected Republican president announced that the US would withdraw from the Paris Agreement, although under Article 28 (1) and (2), the withdrawal would only be effective after four years (or more) from the date of entry into force. In addition, the current stay of the CPP may become – depending on the dynamics within the US Supreme Court – a permanent finding of unconstitutionality. And in all events, the Republican-dominated Congress has already conditioned the US financial contribution to the Green Climate Fund upon the submission of the Paris Agreement for Senate advice and consent,30 thus placing additional pressure on the overall compromise underpinning the instrument. As for China, which is the world’s main emitter of greenhouse gases, its new development strategy has had a significant impact on climate negotiations. Indeed, a key reason explaining the different attitude of China in COP-21 as compared to climate negotiations in previous years, particularly in Copenhagen, is the changing economic (not just environmental) policy embraced by China in its 12th Five Year Plan Period (2011–2015).31 In the words of Chinese President Xi Jinping, China’s ‘New Normal’ economic development approach entails a lower growth rate target (7%), a focus on services and high-value added manufactures, the development of domestic consumption, and a reduction of inequality.32 And in the last years, China’s energy consumption and emissions rate have slowed down, with a decline of 0.1% of emissions in absolute terms over the year 2015.33 From the perspective of interna-

Ibid., 169, referring inter alia to H. Con. Res. 97, 114th Cong., 1st Sess. (2015) (stating that ‘the President should submit to the Senate for advice and consent the climate change agreement proposed for adoption at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP-21), and Congress should refuse to consider any budget resolutions and appropriations language that include funding for the Green Climate Fund until COP-21 emissions commitments are submitted to the Senate’). 30

31 See Isabel Hilton/Oliver Kerr, The Paris Agreement: China’s ‘New Normal’ Role in International Climate Negotiations, Climate Policy 17 (1) (2016), 48–58. 32

Ibid., 5.

33

Ibid., 6 (referring to estimations by Korsbakken et al., 2016a and the National Bureau of Statistics.).

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tional climate negotiations, this has put China, according to two observers, in the enviable position of being able to ‘under-promise and over-deliver’.34 The ratification of the Paris Agreement on 3 September 2016 by both the US (through executive action) and China created great momentum for the entry into force of the Agreement, effectively achieved on 4 November 2016. It also provides an important argument against the political forces in many countries that use the nonratification of major emitters as an excuse for inaction. Unfortunately, however important from a political standpoint, the wide ratification of the Paris Agreement is unlikely to assuage all concerns, even those expressed in good faith. This is because of the specific legal architecture of the Paris Agreement, which was largely necessary to make such ratification possible. In what follows, I discuss the main components of this architecture.

III. The Architecture of the Paris Agreement A. The Three Components of the Paris Agreement

The Paris Agreement, as an instrument, has three main components and each of them is a composite array of provisions in the Agreement itself and external related materials that must be understood, technically, as the context of the Agreement in the meaning of Article 31 VCLT.35 Figure 1 summarises the three components graphically:

34 Fergus Green/Nicholas Stern, China’s “new normal”: structural change, better growth, and peak emissions, Policy Brief – Grantham Research Institute on Climate Change and the Environment, June 2015, 4 (referring to China’s political commitment to peak emissions around 2030), available at: www.lse.ac.uk (accessed on 30 June 2016). 35

Art. 31 VCLT.

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Figure 1

Before analysing these components, it must be noted that there is much that cannot be captured in a concise survey of the Paris Agreement. Starting with the preamble of the Agreement, one finds in a condensed manner carefully crafted expressions of the main tensions underpinning the entire text, between developed and developing countries, between more vulnerable countries and the rest, between countries that expect to suffer from measures that ‘respond’ to climate change and the rest, between climate change action and the fight against poverty (as a paramount objective) or the need for a smooth transition of the work force, between intervention in and conservation of nature, and between science and equity, among others. Of

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particular note is preambular paragraph 12, which contains a specific reference to human rights, for the first time in a climate change treaty.36 Some of the elements of these underpinning tensions will feature in the following analysis, but they would certainly require much more detailed treatment. Their implications will only become clear once the potentialities condensed in the Preamble have evolved into more concrete work streams, whether in the context of the Paris Agreement and the Ad Hoc Working Group on the Paris Agreement (‘APA’) or beyond, as suggested by the work on human rights and climate change undertaken by the UN Human Rights Council.37

B. Goals of the Paris Agreement

Article 2 Paris Agreement sets three goals within the broader objective of Article 2 UNFCCC. During the negotiations, much attention was devoted to whether limiting the increase in global average temperature to 2°C is insufficient for some countries and, more specifically, whether a target of a 1.5°C would be more appropriate. Behind this discussion lies a tension between effectiveness and equity. From an equity perspective it seems clear that 1.5°C would be preferable, as what appears to be a small differential (of merely 0.5°C) could, in practice, amount to disastrous consequences for lowlying island States. But such a target would have complex signalling effects because it appears extremely difficult to achieve38 and, perhaps unrealistic. Selecting 1.5°C as the 36 See Paris Agreement, preambular para. 12 (‘Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity’). On this question see Benoit Mayer, Human Rights in the Paris Agreement, Climate Law 6 (2016), 109. 37 The UN Human Rights Council (HRC) has adopted several resolutions on this question and, in 2009, the Office of the High Commissioner for Human Rights published a Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61 (2009). After the Paris Agreement, the HRC adopted a resolution connecting both streams, see Human Rights and Climate Change, Res. A/HRC/32/L.34 of 28 June 2016.

See Carlo Carraro/Emanuele Massetti, The Improbable 2°C Global Warming Target, Vox, 3 September 2009, available at: www.voxeu.org/index.php?q=node/3940 (accessed on 15 December 2015). 38

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main target could have placed the entire Agreement under an essentially aspirational light, rather than portraying it as truly regulatory instrument. If the Agreement was meant to send a clear signal to producers and consumers as to the need to shift from a fossil fuel-based economy to a decarbonised one, both targets had to feature. That was the solution eventually reached, with Article 2 (1)(a) stating that the objective is to hold the increase ‘well below 2 °C […] and to pursue efforts to limit the temperature increase to 1.5 °C’. In addition, in order to stabilise the increase of global average temperature at the end of the 21st century, the Agreement further states (in Article 4 (1)) an intermediary mitigation target in the form of ‘global peaking of greenhouse gas emissions’ and subsequently ‘balance’ between emissions and removals. I will further discuss this rather vague and highly qualified target in connection with mitigation. I should mention, however, that behind the ‘peak’ in global emissions lie four main sets of considerations, namely the idea of best efforts (hence the reference to peaking ‘as soon as possible’), the need for differentiation (hence the peak in the emissions of developing countries will take longer), the ambiguities relating to individual and global peaking39 and to the ‘balance’ between emissions and removals,40 and last but not least, both ‘peaking’ and ‘balance’ must be achieved within the bounds set by social development. This is recalled by Article 4 (1) in fine and clearly suggests that efforts towards ‘peaking’ and ‘balance’ must be consistent with, and perhaps conditioned to the needs expressed in preambular paragraphs 9 to 12, namely the fight against poverty and hunger and the quest for inclusiveness. Moreover, and very importantly, Article 2 goes beyond a mitigation focus and expands the objective of the UNFCCC (which was merely the ‘stabilization of greenhouse gas concentrations […]’) by adding without limitation (as indicated by the term ‘including’) ‘the increasing ability to adapt to the adverse impacts of climate change’ (paragraph (b)) and to ‘mak[e] finance flows consistent with a pathway towards low greenhouse gas emissions and climate resilient development’ (paragraph (c)), which signals a shift in investment from ‘brown’ to ‘green’. 39 ‘Global’ peaking as a collective effort may admit continuous increase of the emissions of some individual countries, which would be offset by reductions in other countries thus amounting to a ‘global’ although not necessarily an ‘individual’ peak. 40

Depending on the understanding of the term ‘emissions’, a country’s emissions ‘peak’ may also be achieved if emissions continue to increase as long as removals more than offset a country’s emissions. The term ‘balance’ is used to describe carbon neutrality between emissions and removals (in the post global peaking world) but room for ambiguity remains.

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Article 2 (2) places these goals in the light of equity and the principle of common but differentiated responsibilities and respective capabilities. As already mentioned, this principle was not present in the decision launching the Durban platform, but it has become unavoidable in climate change negotiations. Of note is the fact that the two other key principles of Article 3 UNFCCC (precaution and inter-generational equity) are not re-stated. Only the preamble of the Agreement refers back to the principles of the UNFCCC, but, again, it only singles out CBDR. It is fair and scientifically accurate to say that climate change is no longer a matter of mere precaution but one of prevention – preventing an acknowledged risk. The diversity of goals is not merely exhortatory. It is taken up in the two other components of the Agreement, namely the obligations in each action area and the implementation techniques.

C. Action Areas

Leaving aside unessential disquisitions over what areas addressed in the Paris Agreement should (or should not) be called ‘domains’ or ‘action areas’, for the sake of analytical clarity, the Paris Agreement can be considered to address three main action areas. Two of them – mitigation (Articles 3–6) and adaptation (Article 7) – are given particular weight, although the language used for mitigation is more assertive overall,41 whereas the third – loss and damage (Article 8) – is confined within narrow bounds.

1. Mitigation The key area of action that the Paris Agreement was expected to address is mitigation. But mitigation is also the ‘soft belly’ of the Agreement, where the entire system rests on a soft structure of ‘nationally determined contributions’42 or ‘NDCs’ (ArtiSee Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations (note 1). 41

42

These have until now been referred to as ‘intended nationally determined contributions’ or ‘INDCs’ which were to be submitted by States in accordance with the Decision 1/CP.19, para. 2(b), adopted at the Warsaw COP. These covered more than 90% of global annual emissions but the reductions pledged fell short of the level of ambition necessary to reach the 2°C, let alone 1.5°C, as recognised

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cles 3 and 4) set by States parties and to be compiled in a flexible ‘public register’ (Article 4 (12)). States can choose their level of ambition subject to two requirements, namely the regular updating of their NDCs – at least every five years (Article 4 (9)) – and an obligation of progression in the level of ambition (Article 4 (3)). The latter provision also introduces a more aspirational expectation that NDCs reflect the ‘highest possible ambition’ for each country. Given the manner in which differentiation has been ingrained in the provisions of the Paris Agreement, including the latter part of Article 4 (3) itself, this aspirational element would be difficult to judge, as each country would be its own benchmark. It is therefore preferable to distinguish, conceptually and legally, two aspects of Article 4 (3), one that compares each NDC to a clear standard, i.e. the previous NDC, and the other that compares each NDC to a rather obscure ‘best efforts’ standard which is country-specific. As for the specific contents of NDCs, although some guidance was given prior to Paris,43 these are yet to be specified. The INDCs submitted before COP-21 (under the system designed to this effect at the Warsaw COP) were quite diverse in nature and content.44 In this regard, the Paris Agreement recognises the need for clarity and transparency (Article 4 (8)) and the Decision adopting the Agreement has entrusted the APA with the task of providing guidance to this effect to be adopted by the Meeting of the Parties of the Agreement (‘CMA’).45 This soft structure, which recalls the pledges made by States after Copenhagen and anchored in the Cancun Agreements, was important both politically and legally. From a political standpoint, States can choose their level of ambition, which allows by the Decision, para. 17. The records of these INDCs and NDCs are held separately. The former appear on an ‘INDC Platform’, available at: http://unfccc.int/focus/indc_portal/items/8766.php (accessed on 26 October 2016) whereas the latter appear in an interim ‘NDC Registry’ envisioned by the Paris Agreement, for those countries that have already ratified it, available at: http://unfccc.int/focus/ndc_registry/ items/9433.php (accessed on 26 October 2016). 43 See ‘Further advancing the Durban Platform’, Decision 1/CP.19, 31 January 2014, UN Doc. FCCC//CP/2013/10/Add.1, para. 2(b); ‘Lima Call for Climate Action’, Decion 1/CP.20, 2 February 2015, UN Doc. FCCC/ /CP/2014/10/Add.1, para. 14. 44

It must be noted, however, that out of the more than 160 INDCs submitted to the UNFCCC, 90 envisioned some form of carbon pricing instrument (carbon taxes, emissions trading systems, etc.). See World Bank, Carbon Pricing Watch 2016, May 2016. 45

Decision (note 2) paras. 26–28. The APA is also tasked with developing guidance for accounting for Parties’ NDCs (Decision (note 2), para. 31, Paris Agreement Art. 4 (13)).

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great room for differentiation in accordance with CBDR.46 That was part of the price to bring high emitting developing countries, but also the US (as explained earlier in this article), under the regulatory system and it may potentially entail – given the progression requirement – that States will start by setting modest NDCs.47 Legally, (I)NDCs will normally arise from the targets already set in domestic or European law, which gives them higher (signalling) impact on the private sector. In addition, they are anchored in a provision of the Paris Agreement (Article 4 (2)), and they may qualify under international law as a ‘subsequent agreement’ or ‘subsequent practice’ (Article 31 (3)(a)–(b) VCLT) interpreting provisions of the UNFCCC and the Paris Agreement48 and, potentially, as binding unilateral acts.49 Their interpretive strength under this approach would be consistent with the views of those parties that consider

On the question of differentiation in the Paris Agreement see Christina Voigt/Felipe Ferreira, Differentiation in the Paris Agreement, Climate Law 58 (6) (2016). 46

47 According to the Decision (note 2), for those States that have already submitted INDCs, these will count as their first NDCs ‘unless that Party decides otherwise’ (para. 22). It is unclear whether a country (perhaps after a change of government) may scale back its INDC before declaring its first NDC at the time of ratification of the Paris Agreement or, in other words, whether the progression principle applies already in the transition from INDCs to NDCs. It is, in all events, clear that an NDC which would be less ambitious than an INDC would be contrary to the spirit of the Paris Agreement. 48 See International Court of Justice (ICJ), Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 December 1999, ICJ Reports 1999, 1045, 1075 et seq., para. 49, referring to the Yearbook of the International Law Commission, 1966, Vol. II, UN Doc. A/CN.4/SER. A/1966/Add.1, p. 221, para. 15. See also ILC Annual Reports, Report on the work of the sixty-fifth session (2013), UN Doc. A/68/10. Chapter IV ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’, Commentary of 4th Conclusion of Special Rapporteur, 35 et seq. (para. 17). 49 Such a conclusion would depend upon the circumstances under which the (I)NDC has been issued. Bodansky (note 1), 25 has argued, referring to the reluctance of the US and other countries to treat (I)NDCs as Kyoto-like targets or ‘obligations to achieve’, that an (I)NDC could never amount to a binding unilateral act. But this view is inconsistent both with the theory of unilateral acts in international law (for which the travaux preparatoires of a related treaty are only an element to be taken into account in assessing the legal implications of an act, and they would not prevent a State or an organisation – e.g. the European Union (EU) – from binding itself through a unilateral act) as well as, more fundamentally, with the fact that a unilateral act may create a binding obligation of means or ‘conduct’, and not one to ‘achieve’ (obligation of result). On the distinction between ‘obligations of conduct’ and ‘obligations of result’ see ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 14, para. 187; 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 Case No. 17, para. 110; Id., Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Case No 21, para. 129.

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(I)NDCs as internationally binding (e.g. the EU50) but also those other parties that see them as only domestically binding (e.g. the US). At the national but also the sub-national and transnational levels, many important initiatives have been taken, even before the Paris Agreement.51 Such activity constitutes the genuine foundations of the Paris Agreement, which is above all a coordination instrument providing a broad framework within which all these widely diverse actions can be channelled and organised. Indeed, unlike the top down approach adopted by the Kyoto Protocol, as well as by many other multilateral environmental agreements, the Paris Agreement leaves the impulsion of climate policy in the hands of States, who set both their level of ambition and the specific policies to pursue it. It thus adds an umbrella to an ongoing dynamic, which remains the true locus of climate change regulation. In point of fact, much of the legal authority necessary to take action against climate change was already in place before the Paris Agreement52 and the current trends in the adoption of carbon pricing instruments (carbon taxes and emissions trading systems) preceded the Agreement by several years.53 But the Paris Agreement turns these scattered and diverse actions into a global body of response, which is more conducive to adding further to and maintaining the momentum for action. Importantly, beyond individual (I)NDCs, one significant addition in the Agreement concerns the reference to the overall trend in global emissions and the need to reach carbon neutrality in the second half of the 21st Century. As already noted, that 50 Submission by Latvia and the European Commission on behalf of the European Union and its Member States, 6 March 2016, para. 3, available at: http://www4.unfccc.int/Submissions/INDC/ Published%20Documents/Latvia/1/LV-03-06-EU%20INDC.pdf (accessed on 16 September 2016). 51

A database of climate legislation is available at: http://www.lse.ac.uk/GranthamInstitute/ legislation/the-global-climate-legislation-database/ (accessed on 16 September 2016). This database arises from previous work for the preparation of the yearly Global Climate Legislation Study, commissioned by GLOBE, an association of parliamentarians. Another useful database, which covers (although in less detail) actions by non-party stakeholders such as cities, regions, businesses, and others, was launched at the COP held in Lima, Peru, and is called NAZCA (Non-State Actor Zone for Climate Action), available at: http://climateaction.unfccc.int/ (accessed on 16 September 2016). See also Carbon Pricing Watch 2016 (note 44), and the previous World Bank reports on the State and Trends of Carbon Pricing. 52 See The 2015 Global Climate Legislation Study. Summary for Policy Makers, according to which over 75% of world emissions are subject to an economy-wide mitigation target, available at: http://www. lse.ac.uk/GranthamInstitute/wp-content/uploads/2015/05/Global_climate_legislation_study_ 20151.pdf (accessed on 16 September 2016). 53 According to a World Bank Study, some 40 carbon pricing mechanisms existed before the adoption of the Paris Agreement. See World Bank, State and Trends of Carbon Pricing 2015 (Washington, September 2015).

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requires ‘peaking’ emissions as soon as possible, with more time given to developing countries as a matter of CBDR, and then achieving significant reductions so as to reach ‘balance’ between emissions and removals (Article 4 (1)). The Decision ‘invites’ parties to communicate by 2020 ‘long-term low greenhouse gas emission development strategies in accordance with Article 4, paragraph 19’ (paragraph 36), which will be published on the Secretariat’s website. Underpinning the term ‘balance’ lie important questions of equity as well as of geo-engineering. Soft geo-engineering, through afforestation, reforestation, reduced deforestation and enhancement, is clearly encouraged by the Agreement (Article 5) but there are more intrusive methods, such as ocean fertilisation (oceans are the most important carbon sink), which the Agreement does not seem to exclude.54 The mitigation provisions of the Agreement also envision a variety of international cooperative mechanisms, both market (e.g. REDD-plus, linking through the circulation of internationally transferred mitigation outcomes or ITMOs, a project-based mechanism) and non-market based ones.55 I will further discuss the former in connection with implementation techniques.

2. Adaptation Article 7 of the Agreement provides for action on adaptation. Over the years, the political profile of adaptation has grown in importance, particularly since the 2010 54 Note, however, the ‘Statement of Concern’ regarding ocean fertilisation endorsed by the Parties to the 1972 Dumping Convention and the 1996 London Protocol, see ‘Statement of concern regarding iron fertilization of the oceans to sequester CO2 ’, 13 July 2007, LC-LP.1/Circ.14, and the subsequent work, starting with Resolution LC-LP.1 (2008) ‘On the Regulation of Ocean Fertilization’ which developed an ‘Ocean Fertilization Assessment Framework’. Note also the current process towards the adoption of an agreement on biodiversity beyond national jurisdiction (BBNJ) under the United Nations Convention on the Law of the Sea where ocean acidification is seen as a major threat to BBNJ. See Emily Barritt/Jorge E. Viñuales, A Conservation Agenda for Biodiversity Beyond National Jurisdiction. Legal Scan, 1–89, Cambridge Centre for Environment, Energy and Natural Resource Governance, University of Cambridge (C-EENRG). 55

Although the meaning of ‘non-market based’ mechanisms has remained obscure in the negotiations, the expression should be understood as referring to the traditional province of environmental policy which, aside from cost-internalisation of tolerable damage (which is the focus of market mechanisms), has mostly focused on prevention of non-tolerated damage, response when such damage occurs and, of course, reparation strategies. See Jorge E. Viñuales, La distribution de la charge de protéger l’environnement: Expressions juridiques de la solidarité, Lecture at the College de France, forthcoming in the collection ‘Conférences’ of the College de France.

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Cancun Agreements, which set up a Cancun Adaptation Framework.56 The Paris Agreement can be seen as a culmination of these profile-raising efforts. Adaptation is now one of the three goals in Article 2 and a specific provision (Article 7) is devoted to it. Significantly, adaptation is now envisioned as a traceable goal, with Article 7 requiring the adoption by each country of adaptation plans (paragraph 9) and emphasising not only that adaptation efforts by developing countries are to be ‘recognised’ (paragraph 3) but also that they are to be communicated (paragraph 10), recorded in a public registry (paragraph 12), and even included in the global stocktake contemplated in Article 14 of the Agreement (paragraph 14). However, action on adaptation is particularly difficult to streamline, as it can be even more diverse than action on mitigation. Moreover, the level of priority accorded to adaptation is different across countries, with developed countries mostly interested in promoting – including financially – mitigation action by developing countries. These two considerations may explain why, overall, provisions regarding adaptation are less assertive than provisions on mitigation and have been characterised as either ‘softobligations’ or even ‘non-obligations’ in that they are drafted in recommendatory terms and/or qualified by elements of discretion and/or simply capture understandings among the parties, without seeking to create enforceable obligations.57 Another important point is the connection between, on the one hand, adaptation efforts and, on the other hand, its potential implications from the perspective of social development. Adaptation efforts may potentially require widespread governmental intervention, including population displacement, relocation and inequalities due to lack of inclusiveness. Article 7 (5) cautions against this possibility and highlights the need for inclusiveness. It calls for appropriate ‘consideration of vulnerable groups, communities and ecosystems’ and for ‘integrating adaptation into relevant socioeconomic and environmental policies and actions’. The parameters highlighted in paragraph 5 are relevant not only in the relations between governments and their 56

Cancun Agreements (note 16), paras. 13–14. On the Cancun Adaptation Framework and the development of adaptation institutions see German Watch/WWF, Institutions for Adaptation. Towards an Effective Multilevel Interplay (2011), available at: http://germanwatch.org/klima/ad-inst. pdf (accessed on 16 September 2016). 57 See Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations (note 1), 352 (characterising different types of obligations) and 356–357 (placing adaptation provisions mostly under the categories of ‘soft-obligations’ or ‘non-obligations’).

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populations, but must also be taken into account by relevant United Nations bodies and agencies in their development work. Indeed, the conceptual boundary between ‘adaptation’ and ‘development’ is becoming increasingly blurred. Similar concerns had been raised in the attempts by the United Nations Environment Programme (UNEP) to mainstream the ‘Green Economy’ concept through the Green Economy Report (2011)58 and in the 2012 Rio Summit.59 It is telling that the terminology has changed and the concept is now referred to as an ‘Inclusive Green Economy’60 as a tool for sustainable development. An analysis of discourse on this particular term could provide valuable insights on the ideological underpinnings behind programmatic environmental governance concepts.

3. Loss and Damage Another conceptual boundary difficult to draw is that between adaptation and loss and damage, as characterised in Article 8 Paris Agreement.61 In theory, adaptation is a preventive strategy aimed to avoid as much as possible the negative consequences of climate change whereas loss and damage is intended to cope with the damage that has already occurred or cannot be avoided. In other terms, adaptation is (still) about prevention whereas loss and damage is about ‘response’ (and potentially ‘reparation’62). Another way to see it is that adaptation is a long-term process whereas loss and damage is about disaster response. In practice, however, aside from the question of reparation, which is expressly excluded from loss and damage, not much daylight separates both conceptual categories. Indeed, the resilience and vulnerability reduction sought through adaptation plans encompass responses to extreme weather events and slow onset events. The 58

UNEP, Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication (2011). See Elisa Morgera/Annalisa Savaresi, A Conceptual and Legal Perspective on the Green Economy, RECIEL 22 (14) (2013). 59

60 UNEP, Uncovering Pathways towards an Inclusive Green Economy. A Summary for Leaders (2015), at 6. 61 On loss and damage in the Paris Agreement see Maxine Burkett, Reading Between the Red Lines: Loss and Damage and the Paris Outcome, Climate Law 6 (2016), 118. 62 On the distinction of the stages (internalisation, prevention, response, reparation) of environmental policy intervention, see Viñuales (note 55).

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type of early warning systems and emergency preparedness plans referred to in Article 7 (4) are likely to feature in any proper adaptation plan. This is not a purely conceptual point to the extent that the implementation measures (including finance) set out in the Agreement only apply expressly to adaptation (Article 7) and not to loss and damage (hence the interrogation signs in figure 1 supra). Two important questions in connection with loss and damage are compensation for the loss already caused and climate change related displacement. None of them is expressly mentioned in Article 7, but the Decision introduces two clarifications. Displacement relating to the adverse impacts of climate change is expressly contemplated in paragraph 50 of the Decision, according to which the COP entrusts the Warsaw International Mechanism on Loss and Damage63 with the setting up of a task force to develop, in collaboration with other bodies ‘recommendations for integrated approaches to avert, minimise and address displacement related to the adverse impacts of climate change’. This is a very welcome development and contrasts with the laconic but firm rejection of the connection between loss and damage and liability,64 a point on which the US were adamant. The distinction between these three action areas is reflected in the implementation machinery available to each of them. Whereas mitigation and adaption share much, the situation of loss and damage seems narrowly confined.

D. Implementation Techniques

1. Overview The main innovation of the Paris Agreement rests on its implementation techniques and, particularly, the ‘enhanced transparency framework for action and 63 On the evolution of this workstream and the Warsaw mechanism see: Erin Louise Roberts/Saleemul Huq, Coming full circle: the history of loss and damage under the UNFCCC, International Journal of Global Warming 8 (2015), 141; Doreen Stabinsky/Juan P. Hoffmaister, Establishing institutional arrangements on loss and damage under the UNFCCC: the Warsaw International Mechanism for Loss and Damage, International Journal of Global Warming 8 (2015), 295.

Decision (note 2), para. 52 states that ‘[the COP] [a]grees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation’. However, ‘non-market mechanisms’ clearly include reparation techniques, such as liability, and are therefore not excluded from the Paris Agreement as such. 64

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support’ established by Article 13. This mechanism is the embodiment of the approach, followed since the launching of the ADP in 2011, and – even before – through the work of AWG-LCA and in the Copenhagen Accord, according to which emission targets would be set domestically and measuring, reporting and verification (MRV) would be organised at the international level. It is, of course, not the only technique, as the Agreement also contemplates several others, but it clearly suggests that the upper part of the ‘bottom-up’ approach followed by the Paris Agreement focuses on coordination in exchange for action at the domestic level. For analytical purposes, in my discussion of implementation techniques I will make a distinction between information-based techniques (2), compliance facilitation techniques (3) and non-compliance management techniques (4). Figure 2 illustrates the main location of these techniques within the overall compliance process:

Stage 1: Information

Stage 2: Facilitation

Stage 3: Management

Stage 4: Reparation

Stages in the compliance process

Figure 2: Implementation techniques65

Figure 2 is adapted from Pierre-Marie Dupuy/Jorge E. Viñuales, International Environmental Law (2015), 238. 65

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2. Information-based Techniques The Paris Agreement provides for three techniques that can be understood as information-based in that they not only rely on information but their very purpose is to provide informational clarity in the short or the long term. Aside from the important emphasis – already present in the UNFCCC – placed on education (Article 12),66 the Paris Agreement introduces two novelties, which are interconnected. The first, provided for in Article 13, relies on public pressure (perhaps a form of ‘naming and shaming’) to nudge States into taking action not only in connection with mitigation and, to a lesser extent, adaptation but also with respect to assistance. The second, contemplated in Article 14, takes the form of a global stocktake, which is less concerned with compliance and more with the overall effectiveness of the climate change regime. Enhanced transparency framework for action and support – Article 13 establishes an international mechanism of measuring, reporting and verification of the action/support of individual States. This mechanism can be characterised by reference to (i) its nature, (ii) its purpose, (iii) the information it is expected to gather, and (iv) the way in which it will process it. The perceived intrusiveness of an international MRV mechanism led to strong resistance from developing countries over the years, particularly from China and India, who have resisted such an approach since the negotiations that failed to reach a Copenhagen Protocol. Unsurprisingly, in Paris, this question remained open until the very end. The working draft of the agreement circulated on the last Friday of COP-21 still contained, in its corresponding provision (Article 9), three options for paragraph 1. The underpinning tension related to the extent of differentiation in 66 On the broader question of environmental education as a policy as well as, more specifically, on climate change education see Magnus Jesko Langer, Principle 21: The Role of Youth, in: Jorge E. Viñuales (ed.), The Rio Declaration on Environment and Development – A Commentary (2015), 519–539; UNESCO, Not Just Hot Air. Putting Climate Change Education into Practice (2015), available at: http://unesdoc.unesco.org/images/0023/002330/233083e.pdf (accessed on 16 September 2016). Moreover, references to ‘public awareness’ have a particular resonance in the light of unveiled attempts by industry groups to raise doubts as to the reality and urgency of climate change. This problem is particularly acute in the US (see Naomi Oreskers/Erik Conway, Merchants of Doubt (2010)) but also in France (see Stéphane Foucart, L’avenir du climat: enquête sur les climato-sceptiques (2015)). Finally, Article 12 also refers to public participation. On the latter question see Jonas Ebbesson, Principle 10: Public Participation, in: Jorge E. Viñuales (ed.), The Rio Declaration on Environment and Development – A Commentary (2015), 287–309.

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connection with transparency and, more specifically, whether there would be a unified mechanism or different procedures for developed and developing countries. The final wording is a compromise among the different options. Reference to the ‘robust’ and ‘unified’ character of the mechanism or, conversely, to rigid differentiation between developed and developing countries were left out. The agreed paragraph 1 applies to all countries but it stresses its inherently flexible nature and the need to account for parties’ different capacities. The nature of the mechanism is further characterised in paragraphs 2 and 3 of Article 13, which refer to the needs of developing countries67 and less developed countries, and stress the fact that the mechanism is to be implemented in a ‘facilitative, non-intrusive, non-punitive manner, respectful of national sovereignty, and avoid placing undue burden on Parties’ (paragraph 3 in fine). The purposes of the mechanism are aligned with their focus on ‘action’ and ‘support’. On action, the mechanism aims at tracking progress on a Party’s ‘individual’ progress in implementing and achieving its NDCs (under Article 4) and on parties’ (no reference to ‘individual’) progress on adaptation (under Article 7, hence excluding actions under Article 8). On support, the mechanism aims to provide clarity as to the support ‘provided’ and ‘received’ by ‘individual’ Parties under a range of headings, namely mitigation (Article 4), adaptation (Article 7), finance (Article 9), technology transfer (Article 10) and capacity-building (Article 11). The absence of loss and damage (Article 8) in this enumeration is conspicuous. Transparency on both action and support is to feed the global stocktake contemplated in Article 14 of the Agreement. As a rule, communications by parties must be made ‘no less frequently than on a biennial basis’.68 The information to be communicated depends upon the type of party. Importantly, all parties are required to provide information on mitigation (they ‘shall’ do so under Article 13 (7)) and encouraged to do so regarding adaptation actions (they ‘should’ do so under Article 13 (8)). In addition, developed country par-ties ‘shall’ (and other parties that provide support – e.g. China – ‘should’) report on financial, tech67 Decision (note 2), para. 90 further emphasises this point: ‘[the COP][d]ecides that, in accordance with Article 13, paragraph 2, of the Agreement, developing countries shall be provided flexibility in the implementation of the provisions of that Article, including in the scope, frequency and level of detail of reporting, and in the scope of review, and that the scope of review could provide for in-country reviews to be optional, while such flexibilities shall be reflected in the development of modalities, procedures and guidelines referred to in paragraph 92 below’.

Ibid., para. 91 (see also para. 92(e) which implicitly suggests, given current practice, that developed countries may have to provide information annually). 68

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nology transfer and capacity-building assistance (Articles 9, 10 and 11) given to developing country parties (Article 13 (9)). The latter ‘should’ provide information on the support received under these headings (Article 13 (10)). Again, the headings are defined by reference to their specific provisions, hence excluding loss and damage in Article 8 from the picture. Part of the information thus reported (that under Article 13 paragraphs (7) and (9) but not that under paragraph (8), i.e. adaptation actions) is to be subject to a ‘Technical expert review’ characterised in the Decision. This is another area where there was disagreement until the very end of the negotiations. Two options remained open. One option envisioned a more comprehensive review leading to the publication of a report highlighting areas for improvement and even compliance, and to be discussed by the CMA. The other option introduced a rigid distinction between the review of information from developed countries (‘robust technical review process’ with conclusions on compliance) and that from developing countries (a more diluted review process taking into account the level of support received by the relevant devel-oping country). Article 13, paragraphs (11) and (12), provide for a middle ground where ‘implementation and achievement’ are indeed assessed but in the light of the flexibility and differentiation built-in in Article 13. In addition, each party (hence both developed and developing countries) ‘shall’ participate in a ‘facilitative, multilateral’ (hence political and with peers) review progress in the ‘implementation’ and ‘achievement’ of mitigation and financial actions.69 Further modalities and procedures are to be developed by the APA under certain specified parameters.70 Overall, the process can be summarised as emphasising the transparency of mitigation action by all parties and of the assistance (particularly financial) provided by developed countries through both technical review and peer discussion. Global stocktake – As noted above, the idea of a global stocktake has less to do with compliance and more with the overall effectiveness of the Paris Agreement. At COP21 negotiators (and, one must assume, the world at large) were very concerned by the fact that the INDCs so far submitted, although they cover most the greenhouse gas 69 This model of peer discussion as an implementation technique is reminiscent of the approach followed in the area of nuclear safety. See Günther Handl, The IAEA Nuclear Safety Conventions: An Example of Successful ‘Treaty Management’?, Nuclear Law Bulletin 72 (2003), 7. 70

Decision (note 2), paras. 92–98.

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emissions and emitters, still fall short of the 2°C (let alone the 1.5°C). Paragraph 17 of the Decision ‘noted with concern’ that: [T]he estimated aggregate greenhouse gas emission levels in 2025 and 2030 resulting from the intended nationally determined contributions do not fall within least-cost 2 C scenarios but rather lead to a projected level of 55 gigatonnes in 2030, and also notes that much greater emission reduction efforts will be required than those associated with the intended nationally determined contributions in order to hold the increase in the global average temperature to below 2 C above pre-industrial levels by reducing emissions to 40 gigatonnes or to 1.5 C above pre-industrial levels by reducing to a level to be identified in the special report referred to in paragraph 21 below.

For the climate change regime to be effective overall, a focus on the ‘trees’ (through the transparency mechanism) should not displace the more important overall view of the ‘wood’ (the overall stock of greenhouse gases in the troposphere as well as the ability of States to cope with the impact of climate change). The global stocktake envisioned in Article 14 addressed this question. This global stocktake is to take place periodically (every five years, starting in 2023) under modalities still to be defined by the APA.71 The APA has also been entrusted with the task of identifying the relevant sources of information to generate this global stocktake. Paragraph 100 of the Decision mentions some of them, including communications from the parties and the work of the Intergovernmental Panel on Climate Change (‘IPCC’), but the list is non-exhaustive. This raises a quality control question, which has already been faced by the IPCC in the context of bitter accusations of bias or unreliability. Article 14 provides for what can be called an ‘information loop’ in that, as I mentioned earlier, the communications from the Parties inform the global stocktake and, in turn, the latter is to inform the level of ambition to be displayed in future NDCs by parties (Article 14 (3)). The system highlights not only the importance of the science and policy interface, most notably between the IPCC and the UNFCCC/Paris Agreement, but also the need for environmental agreements to have internal scientific bodies capable of processing scientific information in a way that meets the needs of the policy instrument.72

71

Ibid., para. 102.

72

Ibid., para. 101.

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3. Facilitation Through Assistance and Efficiency The Paris Agreement does not break new ground in connection with facilitation of compliance, whether through assistance or efficiency techniques, as it largely (and justifiably) relies on already existing mechanisms.73 However, it does contain a number of potentially important improvements ranging from a duly anchored REDDplus mechanism, to a call for ‘linking’ among different domestic systems, or to a new project mechanism of general application. The Decision entrusted the APA with developing the operational details of these mechanisms, a task that will be carried out over the next years. But we can already at this stage single out a number of elements that deserve particular attention in connection with compliance facilitation through assistance and efficiency. Compliance through assistance – A key debate during the negotiations was the one relating to financial assistance. I have already noted that assistance is identified as one of the three goals of the Paris Agreement (Article 2 (1) (c)) and that obligations of assistance are subject to a sophisticated transparency mechanism established under Article 13. But (i) who should pay (developed countries only or other countries as well?), (ii) the nature of the funds (public or private, and among the latter those specifically leveraged through public intervention), (iii) the specific allocation of such funds (mitigation, adaptation, beyond?) and, of course, (iv) the amounts to be mobilised were also extremely important issues.74 Starting with the latter, the US and other developed countries succeeded in excluding any specific figure from Article 9 Paris Agreement, but paragraph 54 of the Decision introduces two clarifications, namely that a new collective quantified goal will be set by the CMA prior to 2025 and that the ‘floor’ will be the figure, already present in previous negotiations, of US$100 billion per year. Moving to who should pay, the Agreement clearly bestows the obligation on developed country parties (Article 9 (1)), noting that other parties (which remain uncharacterised, but one 73 See e.g. Art. 9 (8) Paris Agreement and Decision (note 2), paras. 59–60 (referring to four existing financial mechanisms as the mechanisms of the Paris Agreement, and potentially a fifth one, which is currently linked to the Kyoto Protocol); Article 10 (3) Paris Agreement and Decision, para. 67 (reliance on the Technology Mechanism under the UNFCCC).

For a discussion of financial issues in the context of the Paris Agreement see Alexander Zahar, The Paris Agreement and the Gradual Development of a Law on Climate Finance, Climate Law 6 (2016), 75. 74

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could think of countries such as China) are ‘encouraged’ to provide such assistance (Article 9 (2)). Funds may – and in all likelihood will – come from both public and private sources, but Article 9 paragraphs (3) and (7) emphasise public funds and private funds mobilised (leveraged) through public intervention.75 The allocation of funds is to follow three parameters, namely: a balance between mitigation and adaptation (Article 9 (4)); special consideration for more vulnerable States, including by the operating entities of the Financial Mechanism, such as the World Bank and regional development banks (Article 9 (4) and (9)); and use by receivers in both mitigation and adaptation (not just the latter, which may be favoured by a developing country).76 Implementation assistance is also contemplated in the form of technology development and transfer (Article 10) and capacity-building (Article 11). Again, this form of support also falls under the remit of the transparency mechanism, which is a significant step in ensuring its implementation. On technology transfer, Article 10 (4) establishes a new Technology Framework in order to conduct technology needs assessments and enhance development and transfer, including through assistance for the early stages of technology development in developing countries. Significantly, although the question of intellectual property rights (IPRs) is not expressly mentioned, paragraph 68(d) of the Decision refers, as part of the new Framework’s mission, to ‘[t]he enhancement of enabling environments for and the addressing of barriers to the development and transfer of socially and environmentally sound technologies’. Capacity-building was also considered as key, among others because it is a prerequisite for proper accounting and implementation of mitigation obligations. The Decision established a Paris Committee on Capacity-Building tasked among other things with managing a work plan over the period 2016–2020 aimed at rationalising capacity-building operations (identifying gaps and eliminating inconsistencies and redundancies).77

75 The scientific body under UNFCCC is to develop modalities for the accounting of such resources. See Decision (note 2) para. 58. 76

Ibid., para. 53.

77

Ibid., paras. 72–74.

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Compliance through efficiency – Articles 4, 5 and 6, Paris Agreement provide for a number of cooperative mechanisms aimed at facilitating compliance with the parties’ mitigation obligations by rendering such compliance more efficient or less costly.78 Some of these mechanisms are already familiar. For instance, Article 4 (16)–(18) set up a mechanism similar to the so-called ‘European bubble’ under the Kyoto Protocol,79 whereby a group of countries may meet their obligations jointly by setting a common target (NDC) in addition to each country target. In a context where there is no internationally determined carbon budget for each country, as in the Kyoto Protocol, such a mechanism seems less pressing, as each country can decide its own level of ambition reflected in its NDC. But it may be useful nevertheless because of the progression principle. Thus, if a country is likely to fall short of its own NDC, it may join forces with a country that has ample room for manoeuvre (which may be the case for a variety of reasons, including economic slowdown) to jointly comply with the common NDC. Similar considerations apply to the mechanism established under Article 6 (4)–(7) ‘to contribute to the mitigation of greenhouse gas emissions and support sustainable development’. This sustainable development mechanism (‘SDM’), as it was called in previous versions of the draft text, will share features of both the joint implementation (JI) and clean development mechanisms (CDM) under the Kyoto Protocol.80 As there is no longer a ‘Chinese wall’, as some commentators called it, between Annex I and non-Annex I country (a key feature distinguishing the JI from the CDM), projects under the SDM will likely operate in any State party with the only – obvious – caveat that reductions counting for the NDC of one country to the transaction (e.g. 78 Much attention has been paid to the market mechanisms envisioned in the Paris Agreement. See e.g. Torbjørg Jevnaker/Jørgen Wettestad, Linked Carbon Markets: Silver Bullets or Castle in the Air?, Climate Law 6 (2016), 142; Andrei Marcu, Carbon Market Provisions in the Paris Agreement (Article 6), Special Report, Centre for European Policy Studies (2016); Daniel Bodansky et al., Facilitating Linkage of Climate Policies through the Paris Outcome, Climate Policy 15 (2015), available at: http:// dx.doi.org/10.1080/14693062.2015.1069175 (accessed on 26 October 2016); Matthew Ranson/Robert Stavins, Linkage of greenhouse gas emissions trading systems: Learning from experience, Climate Policy 15 (2015), 1; Jessica F. Green/Thomas Sterner/Gernot Wagner, A Balance of Bottom-Up and Top-Down in Linking Climate Policies, Nature Climate Change 4 (2014), 1064; Christina Voigt/Felipe Ferreira, The Warsaw Framework for REDD+: Implications for National Implementation and Access to Resultsbased Finance, Carbon and Climate Law Review (2015), 113. 79 80

Art. 4 Kyoto Protocol.

Kyoto Protocol, Arts. 6 (Joint Implementation) and 12 (Clean Development Mechanism). On the operation of this mechanisms see Freestone and Streck (note 1).

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the sponsor of the emissions-reduction project) cannot be counted again to meet the NDC of the other country (the country hosting the project). In this regard, the SDM operates as the JI under Kyoto, but its administration is likely to rely on former CDM institutions.81 Two more innovative mechanisms are those envisioned in Articles 5 and 6 (2)–(3) of the Agreement. The first has received great attention over the last years and concerns reduced emissions not from afforestation or reforestation (which entails planting new trees and hence expanding the carbon sink) but from avoided deforestation or enhancement (i.e. preserving or enhancing an existing sink). The so-called REDD-plus has now received an anchor in a treaty provision. The details of its operation and, specifically, the very important question of finance are addressed in paragraph 55 of the Decision, which ‘[r]ecognizes the importance of adequate and predictable financial resources, including for results-based payments’ and ‘encourages […] support from public and private, bilateral and multilateral sources, such as the Green Climate Fund, and alternative sources in accordance with relevant decisions by the Conference of the Parties’. Interestingly, the anchor provided in Article 5 goes beyond REDD-plus and could also cover an array of payments-for-ecosystem-services which, until now, had no specific anchor in a treaty provision.82 The other innovative mechanism relates to the so-called ‘linking’ of domestic mitigation policies. Normally, a linking process consists of recognising the emission reduction units from a domestic/international emissions trading system in another system. The caps (of each system) are thus merged to some extent and therefore enlarged, with ensuing gains in efficiency terms. Examples include the linking between the European and Norway’s, Iceland’s and Lichtenstein’s emissions trading systems or that between the systems in California and Quebec. Article 6 (2)–(3) allows for this type of linking on a voluntary basis. In other words, there is no requirement for a party to link its system with that of another party, or to do it fully (partial linking would consist of recognising only some carbon units or credits from the other system). In addition, Article 6 (2) is formulated in a sufficiently broad manner so as to allow 81

The detail of the system is to be developed by the scientific body of the UNFCCC and recommended for adoption by the Paris CMP. See Decision (note 2), paras. 38–39. 82 See Riccardo Pavoni, Channeling investment into biodiversity conservation: ABS and PES schemes, in: Pierre-Marie Dupuy/Jorge. E. Viñuales (eds.), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards (2013), 206–227.

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for linking of different types of domestic mitigation policies.83 Such ‘internationally transferred mitigation outcomes’ (or ‘ITMOs’) are a recognised approach to meet NDCs if performed in accordance with guidelines still to be adopted by the CMA.84

E. Management of Non-Compliance

The final component to be noted concerns situations where the information available suggests that, despite the many means to facilitate compliance contemplated in the Agreement, a State party is in a situation of non-compliance. In international environmental law, many treaties, starting with the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer,85 have established nonadversarial mechanisms to ‘manage’ situations of non-compliance. The Kyoto Protocol itself has one such mechanism, established under Article 18 Kyoto Protocol, and soon to face its ultimate test in connection with compliance with States’ quantified obligations under Kyoto’s first commitment period (2008–2012). The Paris Agreement provides for the establishment of a non-compliance mechanism managed by a Committee (Article 15 (2)) consisting of twelve experts elected by the CMA in accordance with some distributional parameters.86 The operational rules and modalities governing the Committee’s activities will be developed by the APA and adopted by the CMA.87 Importantly, unlike the Kyoto procedure, the procedure envisioned in the Paris Agreement will be limited to a facilitative (as distinguished from ‘enforcement’) role. This is consistent with the position of the US to confine binding commitments to the domestic level and therefore avoid the need for Senate advice and 83

See supra, note 78.

84

As for the SDM, the Decision tasks the scientific body of the UNFCCC with developing such guidelines and recommending their adoption by the Paris CMA (para. 37). Great emphasis is placed on the need to ensure integrity and to avoid double counting. 85

Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, UNTS 1522, 3. The specificity of ‘non-compliance’ as distinguished from ‘breach’ has been noted in a number of studies. See e.g. Martti Koskenniemi, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, Yearbook of International Environmental Law 3 (1992), 123. More generally see Tullio Treves et al. (eds.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (2009). 86

Decision (note 2) para. 103.

87

Ibid., para 104.

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consent.88 It is also a further manifestation of the foundational compromise underpinning the Paris Agreement, which moves the centre of gravity of climate policy to the domestic level and establishes a coordinating framework at the international level. Last but not least, Article 24 Paris Agreement refers to the dispute settlement clause in Article 14 UNFCCC as applicable mutatis mutandis to the Agreement. This clause, which opens the possibility for States to accept the compulsory jurisdiction of the International Court of Justice or of an arbitration tribunal, has never been used. That explains why it did not seem appropriate to highlight, in figure 2 above, traditional dispute settlement as an element of the Paris Agreement. In addition, as already noted, paragraph 52 of the Decision excludes the use of Article 8 (loss and damage) as a basis for liability or compensation.

IV. Concluding Observations The components reviewed in the foregoing paragraphs are, for the most part, under construction. In most cases, the implementation of the international machinery is ongoing, although the activities that the Paris Agreement seeks to coordinate and encourage are already fairly advanced and, in some cases, well into their implementation phase. However, examining them as a set of interrelated design features sheds light on the overall architecture of the Paris Agreement, with its soft belly and sophisticated implementation approach, with its comprehensive reach and, at the same time, unprecedented room for differentiation. Less formalistic than the Kyoto Protocol, which provided for an international cap and top-down quantified emissions reduction obligations for Annex I countries, the Paris Agreement asks from States – all States – what they can do to fight climate change, and it provides the necessary steps to make States realise what is happening at the aggregate climate level through their contributions or lack thereof. By way of conclusion, I would like to place the Paris Agreement within its broader social function, which is not to ‘bind’ States but

See the declaration of Secretary of State Kerry after the adoption of the Paris Agreement, reproduced in Wirth (note 12), 168 (stating that the Agreement ‘doesn’t need to be approved by the Congress because it doesn’t have mandatory targets for reduction, and it doesn’t have an enforcement compliance mechanism’ (emphasis added)). 88

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to ‘influence’ the levers of human behaviour already at play at various levels of what can be called the ‘bottom’ of a bottom-up approach. A former professor of philosophy whose classes I attended as an undergraduate student used to say that one can influence behaviour through three fundamental levers of human action, namely coercion, interest and virtue. Coercion, translated in the present context as command-and-control regulation is part of the tool-kit of any State, and it will continue to feature in climate change regulation through a variety of measures such construction and efficiency standards for mitigation or zoning requirements for adaptation. Coercion is clear, but not necessarily efficient (as efficiency gains arising from trading are not permitted) and, sometimes, not even effective (as compliance sometimes requires knowledge and resources, without which a system, however coercive, cannot be effective). Interest has become the basis of market approaches to environmental policy. Setting rules that create the desired economic incentives in the regulated entities is a subtle and important art that has been embodied in a variety of mechanisms from emissions trading systems, to taxes internalising negative externalities (e.g. for carbon dioxide emissions), to subsidies compensating for relative positive externalities (e.g. for renewable energy). Virtue relies on education, understanding and civic commitment. It assumes that reasonable (rather than rational) agents will be able to judge what behaviour to follow or to avoid on the basis of a sufficient understanding of its consequences for the environment. Perhaps more realistically, virtue or education is expected to provide a more solid electoral basis for political movements that pay due regard to environmental protection. The Paris Agreement relies on a careful combination of these three levers of action. It seeks to be realistic more than aspirational, as conveyed by the mitigation goal stated in Article 2 (1)(a), so as to signal the intention to coerce or incentivise, rather than only appealing to a feeling of injustice. It organises implementation through a blend of social coercion (providing for individual transparency, for everyone to see who contributes what exactly to the common problem) and interest (providing for support, both through assistance and efficiency), and laying the foundations for understanding (through education and a global stocktake). It seeks, in fact, to address the roots of the human behaviour that is causing climate change, but not through a single prism that would see humans as either subjects to coerce, rational actors to incentivise, or reasonable people to educate and persuade, but as humans who benefit

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and suffer from the same behaviour, who may be fair and unfair, rational and irrational, obedient and refractory. As such, the Paris Agreement is a realistic instrument and, because of its imperfection, one that is much closer to the human topography than other proposed climate architectures, however appealing the latter may be from an intellectual viewpoint. For that reason, despite the many political uncertainties surrounding its prospects, it stands a better chance to work. Less is more, at least some times. And this is likely one of those times.

FOCUS

FROZEN CONFLICTS: HOW DOES PIL DEAL WITH THEM?

Three Years After Annexation: Of ‘Frozen Conflicts’ and How to Characterise Crimea THOMAS D. GRANT

ABSTRACT: Over three years having elapsed since the forcible seizure of the Crimean area of Ukraine by Russia, it might be asked whether the situation there has settled into a new status quo and, if so, precisely how an international lawyer should characterise it. A number of situations in States in the space of the former USSR have been described as ‘frozen conflicts’ – Transdniestria in Moldova, Nagorno-Karabakh in Azerbaijan, South Ossetia and Abkhazia in Georgia. However, to the extent that the expression ‘frozen conflict’ can properly be used as a term of art in international law at all (the better view is that it cannot), Crimea does not display the main characteristics of such a situation. It remains an unlawful seizure of territory under foreign military occupation and subject to a general obligation of non-recognition, a conclusion supported by the practice of States and international organisations since 2014. Russia’s presence in Crimea accordingly lacks the purposive ambiguity that centrally characterises the so-called ‘frozen conflicts’. KEYWORDS: Crimea, Ukraine, Organization for Security and Cooperation in Europe (OSCE), International Criminal Court (ICC), Human rights, Council of Europe, UN General Assembly, Non-recognition, ‘Frozen Conflicts’

I. Introduction The Russian Federation, following the deployment of elements of its armed forces, in March 2014 annexed the Crimean region of Ukraine. Three years later, the region remained under the effective control of the Russian Federation. The claimed separation of Crimea from Ukraine has been rejected in plain terms by the General Assembly of the United Nations (UNGA),1 the Parliamentary Assembly of the Council of Senior Research Fellow, Wolfson College; Fellow, Lauterpacht Centre for International Law, University of Cambridge. 1 General Assembly (GA) Res. 71/205 of 19 December 2016 (Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine)); GA Res. 68/262 of 27 March 2014 (Territorial Integrity of Ukraine).

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Europe,2 and other organisations and States.3 This practice accords with the obligation not to recognise any change of international boundaries or acquisition of territory effected by threat or use of force.4 The situation on the ground in Crimea perhaps appeared transient at first. However, it has continued. The Russian Federation gives no indication that it will relinquish control of the area or relax its claim that Crimea constitutes an integral part of Russia. Speculation arises whether the situation has effectively entrenched itself. In view of the passage of time and the circumstances of the case, international lawyers might be asked how to characterise Crimea. Political and international relations literature since the early 1990s has referred to certain situations, mostly in the space of the former Union of Soviet Socialist Republics (USSR), as ‘frozen conflicts.’ With respect to Crimea, there are good reasons not to apply that expression. A conceptual reason not to call Crimea a ‘frozen conflict’ is that the expression is too vague to be much use to lawyers. It is unhelpful for other reasons as well. As I have written,5 little or no evidence exists in the practice of States, international organisations, courts, or arbitral tribunals to suggest that ‘frozen conflict’ denotes a juridical concept. Legal writers, too, scarcely use the expression. It has no cohesive core meaning but rather entails a diffuse set of legal phenomena lacking any necessary mutual connection. Moreover, to refer to a situation in this way, rather than helping to identify possible steps forward, suggests that the situation is insoluble: the expression prejudices the outcome. Parliamentary Assembly of the Council of Europe (PACE) Res. 2132 (2016) of 12 October 2016; PACE Res. 1990 (2014) of 10 April 2014. 2

E.g., the North Atlantic Treaty Organization (NATO), North Atlantic Council, Wales Summit Declaration, 4–5 September 2014, available at: http://www.nato.int/cps/ic/natohq/official_texts_ 112964.htm (accessed on 14 June 2017); Organization for Security and Co-operation in Europe (OSCE) Parliamentary Assembly, Baku Declaration, 28 June–2 July 2014, available at: https://www.oscepa. org/meetings/annual-sessions/2014-baku-annual-session/2014-baku-final-declaration (accessed on 14 June 2017); G7, Hague Declaration, 24 March 2014, available at: https://www.g7germany.de/Content/ DE/_Anlagen/G7_G20/G7-The-Hague-Declaration-2014-03-14-eng.pdf?__blob=publicationFile&v=6 (accessed on 14 June 2017). 3

4 See, e.g., GA Res. 2625 (XXV) (Friendly Relations Declaration), Annex, Principle I, para. 4; SC Res. 298 (1971) of 25 September 1971, preambular para. 3.

Thomas D. Grant, Frozen Conflicts and International Law, Cornell International Law Journal, forthcoming. 5

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Implications of the expression ‘frozen conflict’ for international law at large, and for the application of international law in the space of the former USSR, are also unfortunate; it suggests the fragmentation of international law in respect of matters that must be subject to uniform rules if international law is to function at all – i.e., the inviolability of borders, freedom of States to choose their own political, and alliance orientations. In short, it is doubtful that the expression ‘frozen conflict’ has helped us understand the situations that most frequently are referred to in that way. It certainly has not helped policy makers find solutions. We gain no advantage from identifying further ‘frozen conflicts.’ Even if one sets aside these misgivings, there is another reason not to refer to Crimea as a ‘frozen conflict’: as best we can formulate a definition of ‘frozen conflict,’ Crimea does not fit the definition. The present article briefly recalls the events of 2014 leading to the annexation of Crimea (II.); and developments relating to Crimea since then (III.). Recalling the elements of a definition of ‘frozen conflict’ that I have suggested elsewhere,6 the article then identifies aspects of the situation in Crimea that place it outside the definition (IV.), before concluding with some final observations (V.).

II. Crimea 2014 Whereas civil wars in the former Yugoslavia erupted in the midst of the dissolution of the Socialist Federal Republic, the independence of Ukraine on 24 August 1991 and its effective separation from the Soviet State were entirely pacific. Not only was the re-emergence of the Ukrainian State in 1991 without incident; the ensuing period remained peaceful. For nearly a quarter century, no doubt was cast on the legal independence of Ukraine, and all relevant actors accepted the boundary between Ukraine and Russia as settled. Upon the independence of Ukraine in August 1991 and after, the Russian Federation in particular made clear commitments in treaties and other practice accepting the old inter-republican boundaries of Ukraine and Russia as the international border.7 6

Ibid.

Summarised in Thomas D. Grant, Aggression against Ukraine: Territory, Responsibility, and International Law (2015), 107–116. 7

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The tumultuous events of 2013 and 2014 in Ukraine have been recounted elsewhere in detail.8 As Ukraine would later note in its Application instituting proceedings against Russia at the International Court of Justice (ICJ), it was “Ukraine’s longstanding foreign policy objective” to “forg[e] closer ties to the European Union.”9 Russia however deemed unacceptable the announcement by the government of Viktor Yanukovych that Ukraine would adopt an Association Agreement with the EU. The Yanukovych government in November 2013 reversed the announcement and declared that it instead would join a Russian-backed Eurasian union. One EU foreign minister attributed the volte-face to “[p]olitics of brutal pressure.”10 Demonstrations erupted in Kyiv; the demonstrations escalated; State security services killed over a hundred unarmed demonstrators in Kyiv’s Independence Square (Maidan Nezalezhnosti); and on 22 February 2014 Yanukovych’s government came to an end.11 A new government, which international organisations and western States dealt with as Ukraine’s representative, committed itself to restoring a course toward the EU. As best the main line of its varied arguments can be discerned, the Russian Federation maintained that a covert intervention of western States had installed a fascist regime in Kyiv. According to the Russian position, atrocities were taking place against the Russian ethnic minority of Ukraine; or they were soon to take place; or the risk was high that they eventually would take place. Also, according to Russia, these developments posed a threat to Russia’s own security, perhaps existential, at least serious enough to justify invoking the nuclear deterrent,12 because Ukraine would be the final 8

See, e.g., Andrew Wilson, Ukraine Crisis. What it Means for the West (2014).

International Court of Justice (ICJ), Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Application instituting proceedings of 16 January 2017, para. 2. 9

10 Carl Bildt, Ukraine Drops Plan to Go West, Turns East, 21 November 2013, available at: http:// www.voanews.com/content/reu-ukraine-drops-plan-to-go-west-turns-east/1794833.html (accessed on 4 May 2017).

On the Maidan protests and related events, see Office of the United Nations High Commissioner for Human Rights (OHCHR), Report on the human rights situation in Ukraine, 15 April 2014, available via: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/UAReports.aspx (accessed on 14 June 2017), paras. 2, 53–58; International Criminal Court (ICC), Office of the Prosecutor, Report on Preliminary Examination Activities, 14 November 2016, paras. 151–153, available at: https://www. icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf (accessed on 14 June 2017). 11

12 See, e.g., Jeffrey Taylor, Putin’s Nuclear Option, Foreign Policy, 4 September 2014, available at: http://foreignpolicy.com/2014/09/04/putins-nuclear-option/ (accessed on 14 June 2017); Samien Shar-

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bridgehead of a twenty-year eastward march of North Atlantic Treaty Organisation (NATO). Under this view, the development of social and human rights in Ukraine was another provocation; it augured disaster for Russia.13 A mix of official statements and semi-official media stories bit by bit delineated the Russian position, and the emphases in Russian sources differed from one aspect of the matter to another. It is difficult to identify a coherent single Russian theory of the events in Ukraine of 2013 and 2014, except that Russia found them unwelcome and was convinced that they demanded a vigorous response. Having imposed by armed force its effective control from 27 February 201414 and invoking a range of international law bases,15 the Russian Federation on 21 March 2014 annexed the Ukrainian region of Crimea.16 The Constitutional Court of the Russian Federation several days earlier had determined that the annexation law “cannot be regarded as breaking the Constitution of the Russian Federation as to the procedure of signing, conclusion and entry into force.”17 International reaction was one of shock and condemnation. The preface to annexation had been a ‘referendum’ carried out in the extraordinary circumstances of Russia’s sudden armed occupation of Crimea. The Venice Commission of the Council of Europe rejected the referendum as invalid as a matter of Ukrainian law and general constitutional principles.18 Forced disappearances and murder made it imposkov, Putin Issues ‘Nuclear Powers’ Warning Over Sanctions, Newsweek, 16 October 2014, available at: http://www.newsweek.com/putin-warns-careless-west-nuclear-threat-277867 (accessed on 14 June 2017). See, generally, Walter Laqueur, Putinism: Russia and Its Future with the West (2015); Marcel H. Van Herpen, Putinism: The Slow Rise of a Radical Right Regime in Russia (2013). 13

See summary of Ukraine’s submission to the European Court of Human Rights (ECtHR), Press Release, 26 November 2014, available at: http://hudoc.echr.coe.int/app/conversion/pdf/?library= ECHR&id=003-4945099-6056223&filename=003-4945099-6056223.pdf (accessed on 4 May 2017); see also ICC, Office of the Prosecutor (note 11), paras. 155–158. 14

15 Address by the President of the Russian Federation, Annex to the letter dated 19 March 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. A/68/803–S/2014/202 (2014). 16 Federal Constitutional Law On Admitting to the Russian Federation the Republic of Crimea and Establishing within the Russian Federation the new Constituent Entities of the Republic of Crimea and the City of Federal Importance Sevastopol, 21 March 2014. 17 President of the Russian Federation Vladimir Putin, Request to Verify Compliance of Agreement on Accession of Republic of Crimea to the Russian Federation with the Constitution, 18 March 2014, available at: http://en.special.kremlin.ru/catalog/regions/SEV/events/20614 (accessed on 5 May 2017).

Council of Europe, European Commission for Democracy Through Law, Opinion on ‘Whether the Decision Taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to 18

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sible for persons of Ukrainian or Tatar ethnic background to participate in the referendum or to address the question that it purportedly was designed to decide.19 A draft was placed before the UN Security Council that would have declare[d] that this referendum can have no validity, and cannot form the basis for any alternation of the status of Crimea; and call[ed] upon all States, international organizations and specialized agencies not to recognize any alternation of the status of Crimea on the basis of this referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.20

Russia vetoed the resolution; China abstained. All thirteen remaining Security Council members voted in favour. Following the annexation, the UNGA condemned the referendum. GA resolution 68/262 (2014) of 27 March 2014 underscored that “the referendum … having no validity, cannot form the basis for any alternation of the status of the Autonomous Republic of Crimea or the city of Sevastopol.”21 Referring to the purported incorporation of Crimea into Russia, the General Assembly resolution [c]all[ed] upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.22

GA resolution 68/262 (2014) is applied within the United Nations (UN) system. For example, the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) continues to monitor the situation in Crimea “in consultation with the Government of Ukraine,” not through the Russian government.23 The Parliamentary Assembly of the Council of Europe similarly rejected the referendum and the annexation: Organize a Referendum on Becoming a Constituent Territory of the Russian Federation or Restoring Crimea’s 1992 Constitution is Compatible with Constitutional Principles’, 21 March 2014, CDLAD(2014)002. 19 Ukraine gives an overview of the circumstances in which Russia carried out the referendum in its Application instituting proceedings against Russia before the ICJ: ICJ, Application instituting proceedings (note 9), paras. 86–92 (including citations to OSCE, Council of Europe, and UN materials). 20

Security Council (SC) Draft Res. of 15 March 2014, UN Doc. S/2014/189 (2014), para. 5.

21

GA Res. 68/262 of 27 March 2014, para. 5.

22

Ibid., para. 6.

23

OHCHR (note 11), paras. 12, 99.

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The authorization of the Russian Federation Parliament to use military force in Ukraine, the Russian military aggression and subsequent annexation of Crimea … is in clear violation of international law … The so-called referendum that was organized in Crimea on 16 March 2014 was unconstitutional both under the Crimean and Ukrainian Constitutions. In addition, its reported turnout and results are implausible. The outcome of this referendum and the illegal annexation of Crimea by the Russian Federation therefore have no legal effect and are not recognized by the Council of Europe.24

The Organization for Security and Cooperation in Europe (OSCE) Parliamentary Assembly, for its part, stated that Russia “has, since February 2014, violated every one of the ten Helsinki principles in its relations with Ukraine.”25 The G7 States observed that “international law prohibits the acquisition of part or all of another state’s territory through coercion or force.”26 NATO, at summit level, similarly condemned the forcible annexation of Ukrainian territory.27

III. Developments Concerning Crimea Since 2014 Ukraine and other concerned parties, as of spring 2017, have not made any fundamental concession in respect of the situation in Crimea. To the contrary, Ukraine, as the State recognised as sovereign in the Crimean area, has pursued a number of procedural options in respect of breaches by Russia of particular treaty rules. Other parties, including multilateral organisations, have continued to take cognisance of the situation, and the international rejection of the putative annexation of Crimea has been maintained or extended. This practice will be reviewed infra III. A. The situation of human rights in Crimea has deteriorated sharply since the annexation. The Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Council of Europe and OSCE human rights modalities have continued to report on the situation in Crimea. Their reports give a picture of the situation over the past several years (infra III. B). 24

PACE Res. 1988 (2014) of 9 April 2014, paras. 14, 16.

25

Baku Declaration (note 3), para. 4.

26

Hague Declaration (note 3), para. 2.

NATO, Statement by NATO Foreign Ministers, Press Release (2014) 062, 1 April 2014; Wales Summit Declaration (note 3), para. 1. 27

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Since the unlawful annexation, a range of proceedings have been instituted having relevance to the situation in the annexed area. As will be seen, the judicial and arbitral proceedings have not included requests for dispositive findings that Russia’s use of force or the annexation itself is unlawful. The proceedings, instead, address matters arising out of the situation in Crimea and which arguably fall under the terms of particular jurisdictional instruments in force for relevant parties – those parties including Ukraine, Russia, and, in a series of arbitral proceedings, claimant investors. Because the proceedings involving Crimea are sub judice and to a large extent the relevant submissions are not yet in the public record, the present article notes the proceedings without undertaking a closer examination of them at this time. The Office of the Prosecutor of the International Criminal Court (ICC) after 8 September 2015 extended its preliminary examination of events in Ukraine to include events taking place after 20 February 2014 inter alia in Crimea;28 the 2016 Report of the Office of the Prosecutor will be considered below (C.).

A. State and International Organisation Practice

The UNGA, on 19 December 2016, adopted a second resolution in respect of Crimea.29 The resolution “[c]ondemn[ed] the temporary occupation of part of the territory of Ukraine … by the Russian Federation” and “reaffirm[ed] the non-recognition of its annexation.”30 The resolution expressed “serious concern” at the suppression of the Mejlis, self-governing body of the Crimean Tatars.31 It recalled the prohibition under the Geneva Conventions of 12 August 1949 against compelled service of protected persons in the armed or auxiliary forces of an occupying power.32 The resolution was adopted 70 in favour, 26 against, and 77 abstaining.33 The resolution of 27 March 2014 had been adopted 100 in favour, 11 against, and 58 abstaining.

28 ICC, Preliminary examination, Ukraine, available at: https://www.icc-cpi.int/ukraine (accessed on 5 May 2017). 29

GA Res. 71/205 of 19 December 2016.

30

Ibid., preambular para. 6.

31

Ibid., preambular para. 10.

32

Ibid., preambular para. 11.

33

GA, Official Records, Seventy-first session, 65th plenary meeting, UN Doc. A/71/PV.65 (2016).

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The Parliamentary Assembly of the Council of Europe on 24 June 2015 reiterated “its position and demands with regard to … the illegal annexation of Crimea and the continuing deterioration of the human rights situation in that region.”34 On 12 October 2016, the Assembly said that “international pressure, including sanctions, must be maintained until the Russian aggression has ceased and the sovereignty and territorial integrity of Ukraine within its internationally recognized borders has been fully restored.”35 NATO, by a statement of the Deputy Secretary General Rose Gottemoeller on 9 February 2017, reiterated the position of the Alliance: “NATO does not, and will not recognize the illegal annexation of Crimea and we condemn Russia’s continuing destabilization of eastern Ukraine.”36 United States (US) sanctions against Russia in response to the situation in Ukraine, including Crimea, were put in place in 2014 under a number of executive orders.37 These continued in force as of March 2017. EU sanctions continued under Council Regulation (EU) No. 692/2014 of 23 June 2014 as well.38 Under the Council Regulation, EU nationals are prohibited from a wide range of transactions involving Crimea and Sevastopol. On 9 November 2016, the EU added six members of the Russian State Duma from Crimea to the sanctions list, in further implementation of the EU’s nonrecognition of the unlawful annexation.39 Japan, in December 2016, notwithstanding new initiatives to improve economic relations with Russia, affirmed its commitment to sanctions in connection with the annexation of Crimea.40 Canada, which had been 34

PACE Res. 2063 (2015) of 24 June 2015, para. 3.

35

PACE Res. 2132 (2016) of 12 October 2016, para. 13.

Joint press point with NATO Deputy Secretary General Rose Gottemoeller and the Prime Minister of Ukraine, Volodymyr Groysman, 9 February 2017, available at: http://www.nato.int/cps/en/ natohq/opinions_140847.htm?utm_source=twitter&utm_medium=smc&utm_campaign=170210+ ukr (accessed on 5 May 2017). 36

37 See summary list at U.S. Department of State, Ukraine and Russia Sanctions, available at: https:// www.state.gov/e/eb/tfs/spi/ukrainerussia/ (accessed on 5 May 2017). 38 Council of the European Union, Council Regulation (EU) No. 692/2014 of 23 June 2014 concerning restrictions on the import into the Union of goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol, OJ 2014 L 183/9.

Council of the European Union, Press release 637/16, Russia: EU adds 6 members of the State Duma from Crimea to sanctions list over actions against Ukraine’s territorial integrity, 9 November 2016, available at: http://www.consilium.europa.eu/en/press/press-releases/2016/11/08-sanctions-listover-actions-against-ukraines-territorial-integrity/ (accessed on 5 May 2017). 39

The Japan Times, Japan to maintain Russia sanctions while embarking on economic project, 26 December 2016, available at: http://www.japantimes.co.jp/news/2016/12/26/national/politics40

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the first State to impose sanctions in respect of Crimea in 2014,41 continued its sanctions into 2017. Australia’s sanctions also continued, these having been instated on 19 March 2014 and expanded most recently on 31 March 2015.42 In the three years since Russia’s municipal law declared Crimea and Sevastopol to be integrated into Russia, scarcely any State has recognised that putative act of absorption.

B. The Human Rights Situation

Several human rights modalities, including those of the UN High Commission for Human Rights, the Council of Europe, and the OSCE Office for Democratic Institutions and Human Rights and the High Commissioner on National Minorities, have noted the sharp deterioration of the situation in Crimea since 2014. The Human Rights Monitoring Mission in Ukraine (HRMMU), deployed initially on 14 March 2014, has continued since then to “actively monitor the human rights situation in Crimea” – albeit through “a network of contacts” and by “conducting monitoring visits to the administrative boundary line,”43 not through an in situ presence.44 Ensuring “proper and unimpeded access” for international human rights monitoring missions was urged on the Russian Federation in respect of Crimea in the UNGA’s resolution of 19 December 2016.45 The UNHCR reported arbitrary detentions and denial of due process and fair trial in Crimea.46 Persons of Tatar ethnic background and their organisations were particularly targeted.47 The Mejlis, diplomacy/government-sources-say-japan-will-maintain-russia-sanctions-embarking-economicproject/#.WL7LTjueZjU (accessed on 5 May 2017). Special Economic Measures (Ukraine) Regulations, 17 March 2014, SOR/2014-60, as amended on 28 November 2016. 41

Australian Government, Department of Foreign Affairs and Trade, Expanded sanctions against Russia, available at: http://dfat.gov.au/international-relations/security/sanctions/sanctions-regimes/ Pages/crimea-and-sevastopol.aspx (accessed on 5 May 2017). 42

43 OHCHR, Report on the human rights situation in Ukraine, 16 August to 15 November 2016, para. 15, available at: http://www.ohchr.org/Documents/Countries/UA/UAReport16th_EN.pdf (accessed on 14 June 2017). 44

Ibid., footnote 142.

45

GA Res. 71/205 of 19 December 2016, para. 4.

46

Ibid., paras. 157–166.

47

Ibid.

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the Tatar’s main organisation in Crimea, in April 2016 was declared an extremist organisation and banned by the so-called Supreme Court of Crimea, a decision upheld by the Supreme Court of the Russian Federation on 29 September 2016.48 Ukraine’s legislative restrictions on movement of goods and persons between the Crimean area and the rest of Ukraine reportedly have occasioned hardship for some.49 It is to be noted, however, that the obligation not to recognise the unlawful seizure of territory, or to render aid or assistance in maintaining that situation, extends to all States, including the State from which the territory was seized. This is the not the first time that questions have arisen as to the balance between human rights and the obligation of non-recognition. While a precise line between permissible and impermissible restrictions against the unlawful regime is difficult to draw, the Namibia Advisory Opinion and other relevant judicial decisions are clear that mundane administrative acts like the issuance of birth, death, and marriage certificates are not to be denied effect – at least internationally.50 UNHCR calls into question Ukraine’s approach to such acts by the Russian authorities in Crimea, in particular a Ukrainian law “On the Temporarily Occupied Territory of Ukraine.”51 Of course, how a court in Kyiv treats, say, a birth certificate, issued in Sevastopol, is not in itself a matter of “advantages derived from international co-operation”, those being the “advantages” that the ICJ in the Namibia Advisory Opinion admonished States not to negate when implementing the obligatory non-recognition. Substantial numbers of detainees have been transferred from prisons in Crimea to prisons in the Russian Federation. Provisions for healthcare for detainees are reported to be extremely poor.52 Elections for the Russian Parliament were held on 18 September 2016 in Crimea, a breach of UNGA resolution 68/262 (2014). No international monitors were present, and reports emerged of intimidation against Crimean Tatars during the 48

Ibid., para. 167.

49

Ibid., paras. 170–171.

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, 56, para. 125; cf. ECtHR, Loizidou v. Turkey, Judgment of 18 December 1996, RJD 1996VI, 1, 14, para. 45. 50

51

OHCHR (note 43), para. 196.

52

Ibid., paras. 172–176.

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election period.53 As noted above, the EU extended its sanctions to include the individuals purportedly elected to represent Crimea in the Russian parliament.54 The Council of Europe Commissioner for Human Rights, in April 2016, expressed concern over the ban on the Tatar Mejlis.55 The Parliamentary Assembly condemned the putative election of Duma deputies for Crimea.56 The Commissioner earlier had criticised the suppression of Crimean Tatar broadcasting.57 The OSCE Human Rights Assessment Mission on Crimea in July 2015 set out perhaps the most detailed account of human rights violations in Crimea.58 There, too, it was noted that Crimean Tatars were particularly mistreated.59 A large number of internally displaced persons from Crimea are Tatars.60 The suppression of education in the Ukrainian and Tatar languages was addressed.61 The Assessment Mission also noted, among other violations, the imposition of Russian citizenship on individuals in Crimea.62 The Assessment Mission set out a detailed account of boundary crossing formalities and restrictions imposed on movement of persons between Crimea and the rest of Ukraine.63 53

Ibid., paras. 177–178.

54

Council of the European Union (note 39).

Council of Europe, Commissioner for Human Rights, Statement: Crimea: Commissioner urges a reversal of the ban on the Mejlis, 26 April 2016, available at: https://www.coe.int/en/web/commis sioner/-/crimea-commissioner-urges-a-reversal-of-the-ban-on-the-mejlis (accessed on 9 May 2017). 55

56 PACE Res. 2132 (2016) of 12 October 2016, para. 4.1 (in regard to the 18 September 2016 Russian parliamentary elections).

Council of Europe, Statement of Commissioner Nils Muižnieks, 2 April 2015, available at: https:// www.coe.int/en/web/commissioner/country-monitoring/ukraine/-/asset_publisher/PwOwYulLuc5b/ content/commissioner-muiznieks-calls-for-unhindered-broadcasting-of-atr-tv?inheritRedirect= false&redirect=https%3A%2F%2Fwww.coe.int%2Fen%2Fweb%2Fcommissioner%2Fcountrymonitoring%2Fukraine%3Fp_p_id%3D101_INSTANCE_PwOwYulLuc5b%26p_p_lifecycle%3D0%26 p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-1%26p_p_col_pos%3D1 %26p_p_col_count%3D2 (accessed on 30 May 2017). 57

58 OSCE, Office for Democratic Institutions and Human Rights & High Commissioner on National Minorities, Report on the Human Rights Assessment Mission on Crimea (6–18 July 2015), 17 September 2015, available via: http://www.osce.org/odihr/report-of-the-human-rights-assessmentmission-on-crimea (accessed on 14 June 2017). 59

See, e.g., restrictions on Crimean Tatar political leaders: ibid., para. 151.

60

Ibid., para. 170.

61

Ibid., paras. 184–197, 266–291.

62

Ibid., paras. 37–42, 92.

63

Ibid., paras. 148–174.

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The human rights of individuals in a territory are a matter independent of the international law status of the territory; but the OSCE Assessment Mission nevertheless noted that Ukrainians and Crimean Tatars have expressed “their identity and opposition to the illegal annexation of Crimea” – and that Russian authorities have subjected them to “[i]ntimidation, expulsion, or incarceration” in response.64 A degree of overlap between the human rights regime and the unlawful territorial situation thus emerges.

C. Preliminary Examination by the Office of the Prosecutor of the International Criminal Court

Ukraine, though not a party to the Statute of the International Criminal Court (ICC Statute),65 lodged two Declarations accepting the jurisdiction of the ICC for specific purposes in regard to specific time frames.66 The first Declaration (dated 9 April 2014) accepts the jurisdiction of the ICC “for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Ukraine within the period 21 November 2013–22 February 2014.”67 Ukraine lodged its second Declaration on 8 September 2015, by which Ukraine accepts the jurisdiction of the ICC in relation to alleged crimes committed in Ukrainian territory from 20 February 2014 with no end date. The ICC Prosecutor announced a preliminary examination of the situation in Ukraine on 25 April 2014 – i.e., under the first and time limited Declaration. The second Declaration opened the way to a more extensive preliminary examination, including into alleged crimes in the Crimean area of Ukraine after Russia’s seizure of the territory by force.68 64

Ibid., para. 292.

65

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90 (ICC Statute).

Art. 12 (2) ICC Statute provides for the possibility of the exercise of jurisdiction, inter alia, where a State not party to the Statute has lodged its acceptance in accordance with Art. 12 (3), and where the conduct in question occurred on the territory of that State. N.b.: Art. 12 (3), itself is “not a trigger mechanism” for prosecution, about which see ICC, Office of the Prosecutor, Policy Paper on Preliminary Examinations, November 2013, fn. 25, available at: https://www.icc-cpi.int/iccdocs/otp/OTPPolicy_Paper_Preliminary_Examinations_2013-ENG.pdf (accessed on 14 June 2017). 66

67 Embassy of Ukraine, Declaration of Ukraine to the Registrar of the ICC, Letter No. 61219/35-673384, 9 April 2014, available at: https://www.icc-cpi.int/itemsDocuments/997/declarationRecognition Juristiction09-04-2014.pdf (accessed on 14 June 2017).

ICC (note 28); see also, regarding circumstances under which the Office of the Prosecutor may initiate a preliminary examination, ICC, Office of the Prosecutor (note 66), para. 73. 68

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Putting aside for the moment the possibility of future prosecutions for the ‘crime of aggression’ as contemplated under the amendments to the Rome Statute adopted in 2010,69 prosecutions under the Statute do not necessarily address the legality of decisions directing the political or military actions of a State. The Office of the Prosecutor, reporting on its Preliminary Examination Activities in 2016, noted as follows: A determination of whether or not the initial intervention which led to the occupation [of Crimea] is considered lawful or not is not required. For purposes of the Rome Statute an armed conflict may be international in nature if one or more States partially or totally occupies the territory of another State, whether or not the occupation meets with armed resistance.70

So, as with the judicial and arbitral proceedings arising out of the situation in Crimea, the process under the ICC Statute, such as it has run to date, does not address the underlying illegality of Russia’s use of force or the putative change of the international boundary with Ukraine. The process nevertheless addresses important matters arising out of those acts – including, as will be seen below,71 what legal characterisation to place on the situation. As of November 2016, the Prosecutor had received “over 48 communications” concerning crimes allegedly committed after 20 February 2014.72 Those arising out of Crimea included complaints of harassment of the Crimean Tatar population, killing and abduction, other cases of ill-treatment including threats of sexual violence, abuse of trial process, and compelled military service.73

IV. Crimea as an Unlawful Claim – but Not a Frozen Conflict Perhaps because those who use the term ‘frozen conflict’ apply it to situations in States formerly part of the USSR, some writers have referred to the situation in the

69 ICC Assembly of State Parties, Review Conference, Resolution RC/Res.6 (The crime of aggression) of 11 June 2010. 70

ICC, Office of the Prosecutor (note 11), para. 158.

71

Infra, IV. B. 1.

72

ICC, Office of the Prosecutor (note11), para. 146.

73

Ibid., paras. 172–176.

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Crimean area of Ukraine as a ‘frozen conflict.’74 At least one international law writer has referred to Crimea as a ‘frozen conflict.’75 The question is whether the circumstances justify classifying Crimea that way. Not everybody accepts that Crimea is a ‘frozen conflict’. In a resolution adopted in October 2015, which is to say over a year and a half after the annexation of Crimea, the Parliamentary Assembly referred to “the four ongoing ‘frozen conflicts’ in the Council of Europe geographical area,”76 implying that Transdniestria, NagornoKarabakh, South Ossetia, and Abkhazia were the only ‘frozen conflicts’ in that area. The Parliamentary Assembly in 2016 called on the Council of Europe member States to take steps to prevent the conflicts in Ukraine from turning into “a ‘frozen’ or ‘semi-frozen’ conflict,”77 which was again to imply that Crimea (and eastern Ukraine) were not ‘frozen conflicts’ (or ‘semi-frozen’). At the same time, those who do not classify Crimea as a ‘frozen conflict’ suggest that it might turn into one. A Member of the United Kingdom House of Lords, for example, said, “[T]he dispute over Crimea and part of eastern Ukraine sadly seems likely to be added to the list of ‘frozen conflicts’ …”78 To similar effect, German authorities expressed concern that Crimea might become a ‘frozen conflict’.79 As these examples illustrate, it has occurred to politicians and others that Crimea might turn into a ‘frozen conflict’. Since the possibility has been aired in policy-making forums, a lawyer might be asked whether Crimea has become a ‘frozen conflict’ and, if not, whether it risks becoming one. However, classifying a situation as a ‘frozen conflict’ or not requires, first, a definition of ‘frozen conflict.’ See, e.g., Anton Bebier, Crimea and the Russian-Ukrainian Conflict, Romania Journal of European Affairs 15 (1) (2015), 35. 74

Arman Sarvarian, Codifying the law of state succession: a futile endeavour? European Journal of International Law (EJIL) 27 (2016), 789, 806, fn. 112. 75

76

PACE Res. 2078 (2015) of 1 October 2015, para. 9.

77

PACE Res. 2132 (2016) of 12 October 2016, para. 14.

Lord Bowness, House of Lords Daily Hansard, 26 February 2015, column GC 419. Available at: https://hansard.parliament.uk/Lords/2015-02-26/debates/15022650000191/EuropeanUnion (DefinitionOfTreaties)(AssociationAgreement)(Georgia)Order2015 (accessed on 14 June 2017.) 78

79 See, e.g., House of Lords European Union Committee, The EU and Russia: before and beyond the crisis in Ukraine, Appendix 5: Evidence taken during visit to Berlin, House of Lords Papers 115 (2015), 120.

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GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 A. Defining ‘Frozen Conflict’

I have written elsewhere about the origins of the expression ‘frozen conflict’ and, with a view to the four main situations typically described as ‘frozen conflicts,’ have suggested a cluster of legal problems associated with them. In the four main examples of ‘frozen conflicts’, some or all of these problems have arisen, but they do not distinguish the ‘frozen conflicts’ from other situations (i.e., from situations not widely referred to that way). These problems may be briefly instanced, before turning to a set of criteria that are more distinctly related to the ‘frozen conflicts’ and, thus, more salient as a basis for a definition.

1. Legal Problems Associated with Frozen Conflicts but Not Distinguishing them as a Class A number of legal problems have arisen in the four situations typically referred to as ‘frozen conflicts’.80 They are not all present in each conflict; and they arise in too many other situations to provide a definition. Nevertheless, they are salient aspects of the ‘frozen conflicts’, and, perhaps, help point us toward a definition: – International legal responsibility of insurrectional movements, both at the time and, possibly, later if they prevail over the incumbent State; – Attribution of the conduct of insurrectional movements to a sponsoring State, including questions of degrees of direction or control and legal consequences of sponsorship or acquiescence in sponsorship; – Breach of ceasefire lines; – Armed bands and mercenaries infiltrating across international borders; – Impediments to the accession of a State to international organisations due to the existence of the conflict; – Relations with third States, for example in respect of border control; – Human rights claims by individuals caught up in the conflict; 80

Grant (note 5).

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– Displaced persons (as a prevalent type of human rights/humanitarian problem arising in these conflicts); – Applicability of international humanitarian law to internal armed conflict; – Money laundering and drug trafficking and applicable international conventions; – Terrorism prevention; – International environmental law; – Investment protection, including under investment treaties. These are some of the legal phenomena that have arisen in connection with the four main examples of ‘frozen conflicts’ but which are not uniquely associated with those situations. A number of these legal problems associated with ‘frozen conflicts’ have arisen in connection with Crimea. As noted above, large numbers of persons have been displaced from the region.81 Investors have invoked treaty protection.82 Individuals have brought human rights claims.83 A series of inter-State claims have been lodged as

See Human Rights Council, Report of the Special Rapporteur on the human rights of internally displaced persons, Chaloka Beyani, UN Doc. A/HRC/29/34/Add.3. (2015); see also General Assembly Third Committee, Australia et al.: draft resolution, Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine), UN Doc. A/C.3/71/L.26 (2016). 81

82 See generally Odysseas G. Repousis, Why Russian investment treaties could apply to Crimea and what would this mean for the ongoing Russo-Ukrainian territorial conflict, Arbitration International 32 (2016), 459–481; The institution of proceedings has been publicly noted, including the constitution of tribunals under UNCITRAL rules with the PCA as registry, in the following disputes: Everest Estate LLC et al. v. Russian Federation (Andrés Rigo Sureda; W. Michael Reisman; Rolf Knieper), Stabil et al v. Russian Federation (Gabrielle Kaufmann-Kohler; Daniel M. Price; Brigitte Stern), PJSC Ukmafta v. Russian Federation (Gabrielle Kaufmann-Kohler; Daniel M. Price; Brigitte Stern), Lugzor et al v. Russian Federation (Donald M. McRae; Bruno Simma; Eduardo Zuleta Jaramillo), PJSC CB Privat Bank and Finalon LLC v. Russian Federation (Pierre Marie-Dupuy; Daniel Bethlehem; Václav Mikulka), Aeroport Belbek LLC & Kolomoisky v. Russian Federation (Pierre Marie-Dupuy; Daniel Bethlehem; Václav Mikulka), Oschadbank v. Russian Federation (David A. R. Williams; Charles N. Brower; Hugo Perezcano Diaz). 83 The ECtHR reports that, as of May 2017, almost 4,000 individual applications have been lodged in relation to events in Crimea or Eastern Ukraine: ECtHR, Press country profile: Russia, 2 May 2017, 19, available at: www.echr.coe.int/Documents/CP_Russia_ENG.pdf (accessed on 30 May 2017). For an earlier comment see Philip Leach, Ukraine, Russia and Crimea in the European Court of Human Rights, EJIL Talk!, 19 March 2014, available at: https://www.ejiltalk.org/ukraine-russia-and-crimea-inthe-european-court-of-human-rights/ (accessed on 30 May 2017).

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well.84 The law of occupation has been invoked in connection with Russia’s presence in Crimea, for example in GA resolution 71/205 (2016), as noted above.85 The legal responsibility of the occupying State, Russia, has been invoked in connection with the investment and human rights claims. Ukraine’s maritime boundaries with Romania, as adjudicated in 2009,86 have not been changed by the putative annexation of Crimea, but a future delimitation to determine boundaries with overlapping maritime entitlements of Bulgaria and Turkey might attract concern.87 The ICJ proceedings that Ukraine instituted on 16 January 2017 against Russia are based on the International Convention for the Suppression of the Financing of Terrorism (TFC)88 and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).89 Matters such as these – human rights, displaced persons, effects on legal interests of other States, counter-terrorism, etc. – though they have arisen in some or all of the main examples of ‘frozen conflicts’, also have arisen, singly and together, in other conflicts. They do not set the ‘frozen conflicts’ apart.

2. The Core Criteria of ‘Frozen Conflict’ Instead, seven criteria distinguish the situations that are most frequently called ‘frozen conflicts’ from others. When these criteria all are present, a situation is sufficiently similar to the four situations to justify, perhaps, referring to it as a ‘frozen conflict’ as well. At any rate, to refer to such a situation as a ‘frozen conflict’ would be defensible on grounds of consistency, whether or not referring to it in that way is useful for legal analysis. 84 On the status of the inter-State applications at the ECtHR, see ECtHR, Press country profile: Russia (note 83), 18–19. 85

GA Res. 71/205 of 19 December 2016, para. 2(a).

ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61, para. 219 and accompanying sketch-maps. 86

Ibid., para. 112. About which see Thomas D. Grant, International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms, Chicago Journal of International Law 16 (2015), 1, 24–27. 87

International Convention for the Suppression of the Financing of Terrorism, 10 January 2000, UNTS 2178, 197 (TFC). 88

International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS 660, 195 (CERD). 89

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The seven criteria are these: 1. armed hostilities have taken place, parties to which include a State and separatists in the State’s territory;90 2. a change in effective control of territory has resulted from the armed hostilities;91 3. the State and the separatists are divided by lines of separation that have effective stability;92 4. adopted instruments have given the lines of separation (qualified) juridical stability;93 5. the separatists make a self-determination claim on which they base a putative State;94 6. no State recognises the putative State;95 7. a settlement process exists, involving third parties, but this has been sporadic and inconclusive.96

B. Is Crimea a ‘Frozen Conflict’?

With the seven criteria proposed above in view as a definition, one may turn to the question that motivates the present article. Is Crimea a ‘frozen conflict’? Crimea arguably displays some of the criteria. A local political formation presented itself as a separatist movement in March 2014 and came at least nominally to control Crimea. Its claim to have controlled Crimea is not credible, forces of the Russian

90

Grant (note 5), III. B. 1.

91

Ibid., III. B. 2.

92

Ibid., III. B. 3.

93

Ibid., III. B. 4.

94

Ibid., III. B. 5.

95

Ibid., III. B. 6.

96

Ibid., III. B. 7.

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Federation in fact having controlled Crimea at the time,97 but the claim at any rate was made, and various acts were carried out in the name of that political formation.98 There is no doubt that a change in effective control of the area has occurred. A line exists between the Crimean part of Ukraine and the rest of Ukraine, and it has been largely static since Russia’s armed occupation began. The situation in Crimea, as it stands (March 2017), does not appear likely to change in the near future and so inconclusiveness is a characteristic of the situation in Crimea as well. Thus, a number of the seven posited criteria are arguably present in Crimea – separatists (though subject to the doubts noted), a clear dividing line (but, as will be seen, not an internationally-agreed line), and a change in effective control, an inconclusive State of affairs. Others, however, are absent. At least four may be instanced.

1. Absence of Armed Hostilities Between a State and Separatists The situation in Crimea arose after armed hostilities, but it is not credible to say that the hostilities were between a State and separatists. The intervention of the Russian Federation was the means by which the separatists came to control the Crimean area. It is true that a State sponsor has been indispensable to the separatist movements in Transdniestria, Abkhazia, South Ossetia, and Nagorno-Karabakh. The difference is that the separatists in those places, even if they could not on their own have taken control, had the ability to affect the situation. The separatists in each of the ‘frozen conflicts’ had a real presence in the territory as an independence movement. The separatists were part of the background to the conflict. They were not summoned into being by their State sponsor on the spur of the moment, even if their full mobilisation would have been unlikely without sponsorship. In Crimea, there were occasional complaints about Russian ethnic rights,99 but complaints such as those, without more, do 97 As noted above, Ukraine dates Russian control to 27 February 2014. See summary of Ukraine’s submission to ECtHR: ECtHR (note 14). See also OHCHR (note 11), paras. 6, 86, noting that the troops in control of Crimea were “widely believed to be from the Russian Federation”. 98

E.g., the “secession” declaration in: OHCHR (note 11), para. 22.

These were mostly individual complaints. Russia itself, in the Universal Periodic Review before the annexation, said nothing to suggest that a human rights problem existed in Crimea: Human Rights Council, Report of the Working Group on the Universal Periodic Review, Ukraine, UN Doc. A/HRC/ 22/7 (2012), para. 28. 99

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not make an armed insurrection. The conflict preceding the annexation of Crimea was inter-State, not intra-State. Comparing the four ‘frozen conflicts,’ one finds that the separatists there displayed varying degrees of operational independence and efficacy. In Crimea, by contrast, the putative separatist movement was entirely fictive. The Office of the Prosecutor of the ICC appears to find this conclusion plausible as well. This is suggested in how the Office has addressed the application of the law of armed conflict to Crimea. In view of the applicable law provision of the ICC Statute (Article 21), if a case arising from the situation in Crimea were to be referred to the ICC, the ICC likely would be asked to determine whether it is appropriate100 to apply “the established principles of the international law of armed conflict” and, if so, which of those principles are to be applied. The Office of the Prosecutor in its Report on Preliminary Examination Activities for 2016 observed (it seems with a view to the applicable law provision) that “an assessment of the Court’s jurisdiction entails analysis of whether the alleged crimes [in Crimea] occurred in the context of an international or a non-international armed conflict.”101 The Report goes on to say that “[t]he information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation.”102 As I have suggested in addressing the expression ‘frozen conflict,’ one of the hallmarks of the situations typically referred to as ‘frozen conflicts’ is ambiguity as to their legal character. The internal versus external aspects of ‘frozen conflicts’ appear inter-mixed, and a clear categorisation of the conflicts is thus evaded.103 Decisive juridical responses are in turn frustrated. The Office of the Prosecutor, however, does not seem to accept ambiguation (deliberate or otherwise) of the conflict in Crimea. See ICC, Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1049, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial of 30 November 2007, para. 44, available via: https://www.icc-cpi.int/pages/record.aspx?uri= 371733 (accessed on 15 June 2017). 100

101

ICC, Office of the Prosecutor (note 11), para.154.

Ibid., para. 158. As to defining the limits of non-international armed conflict for the purposes of the Statute, see ICC, Pre-Trial Chamber II, The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/0501/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo of 15 June 2009, paras. 227–234, available via: https://www. icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/08-424 (accessed on 15 June 2017). 102

103

Grant (note 5), Conclusion.

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In support of its (tentative) conclusion that Crimea is the scene of an international armed conflict, the Office’s Report said as follows: This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation.104

The ‘frozen conflicts,’ at least in their classic form, have not been open to so ready a characterisation. The ‘frozen conflicts’ have been fraught with uncertainty when it comes to the relations between external sponsors and internal armed groups – and thus, for the sponsors, replete with opportunity for obfuscation and denial. The Office’s Report notes that the Russian Federation, after the seizure of Crimea, itself “admitted that its military personnel had been involved in taking control.”105 It would be an uphill battle for the Russian Federation to deny the international character of the armed conflict in Crimea.

2. Absence of a Putative Separatist Entity There is no separatist entity or putative State in Crimea. To the extent that one might have existed, it lasted not more than a week. The territory was purportedly absorbed into Russia by a municipal law act almost as soon as Crimea purportedly declared independence. The intention behind Russia’s annexation is not to ‘freeze’ the conflict. Through annexation, Russia intends to render the matter moot at the international law level and thus to dissolve the conflict altogether. The States sponsoring the separatists in the ‘frozen conflicts’ tolerated or even fostered ambivalence. Russia, in Crimea, by contrast, has been perfectly clear. The further criterion of the ‘frozen conflict’ – universal non-recognition of the separatist entity – is, accordingly, not present in Crimea. To note this distinction between ‘frozen conflicts’ and Crimea might seem superfluous: if there is no separatist entity, then it goes without saying that nobody recognises it. There is however a point 104

ICC, Office of the Prosecutor (note 11), para. 158.

105

Ibid., para. 155.

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of substance in the distinction. A claim by a separatist group to have created a new entity on the territory of a State is not in itself an unlawful act, a point made clear by the ICJ in the Kosovo advisory proceeding.106 It is the proverbial “sound of one hand clapping.”107 The claim is judged by each State, when it responds by recognising it, or by declining to. Recognising or declining to recognise a new State is, classically, subject to each State’s discretion. The act of separation is an act taking place within the municipal legal order of an existing State – probably a breach of the legal order of that State but, without more, not a matter for international law. A State seizing territory by threat or use of force from another State, by contrast, is an international law act. The response of States to that act is not subject to discretion. The resultant situation – the unlawful seizure of territory – shall be refused recognition: No State shall recognize as lawful a situation created by a serious breach [by a State of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation.108

The non-recognition of Russia’s forcible annexation of Crimea applies this rule.109 PACE resolution 2132 (2016) reiterated the UNGA’s condemnation of “the illegal annexation of the peninsula and its continuing integration into the Russian Federation, in breach of international law.”110 This “continuing integration” is not an ambiguous three-way conflict between an incumbent State, a separatist group, and a State sponsor of the separatist group. It is instead a bilateral situation, in which one State forcibly seized territory of another. The result is not subject to doubt or interICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403, 436–439, paras. 79–84. 106

107 ICJ, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for advisory opinion submitted by the General Assembly of the United Nations), Public Sitting of 10 December 2009, Verbatim Record CR 2009/32, 47, para. 6 (James Crawford for United Kingdom), available at: www.icj-cij.org/docket/files/141/15734. pdf (accessed on 30 May 2017).

Art. 41 (2) ILC Articles on the Responsibility of States for Internationally Wrongful Acts, 12 December 2001, GA Res. 56/83 of 12 December 2001 (Articles on State Responsibility), with Art. 40 (1) Articles on State Responsibility inserted in substitution of the cross-reference. 108

On non-recognition of the forcible annexation, see Thomas D. Grant, Aggression Against Ukraine: Territory, Responsibility, and International Law (2015), 63–99. 109

PACE Res. 2132 (2016) of 12 October 2016, para. 4 (Political consequences of the Russian aggression in Ukraine). 110

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pretation. It is a legally unambiguous act, and it carries definite consequences under international law. Russia’s annexation of Crimea has instigated a range of steps at the international level. States and international organisations have suspended contact with the authorities that are effectively in control of Crimea. UN organs, for example, are clear that dealings that concern the Crimean area of Ukraine are to be conducted through the government in Kyiv, not Moscow (and certainly not Crimea directly).111 Dealings with Russia are fashioned to avoid any inference that a State accepts the purported assimilation of Crimea into Russia. The obligation of non-recognition does leave room for certain practical steps. These are in line with the principle that “non-recognition … should not result in depriving the people [in the territory] of any advantages derived from international co-operation” – such as international acceptance of the registration of births, deaths, and marriages, “the effects of which can be ignored only to the detriment of the inhabitants.”112 In accordance with Article 41 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility), the practical steps however, are limited: no steps may be taken that are tantamount to recognising as lawful the situation created by the breach or that render aid or assistance in maintaining that situation. No State is to further the entrenchment of the unlawful presence of the State responsible for the breach. The contrast here with a ‘frozen conflict’ is this: International actors deal with the separatist entity in a ‘frozen conflict’; the States involved in the conflict – the incumbent and the separatists’ sponsor – accept, in principle, that an autonomy arrangement may form part of the (eventual) settlement. This possibility opens the door to negotiations as to final status, and, in the interim, it opens the door to various transactions involving the area under separatist control. Those doors are not open when one State claims to have promulgated a definitive settlement by annexing the territory. International law does not prohibit the emergence of a new State on territory 111 See, e.g., the UN Human Rights Monitoring Mission in Ukraine (HRMMU) addresses Crimea “in consultation with the Government of Ukraine,” though the Russian Federation has requested that the Mission work through Moscow: OHCHR (note 11), paras. 12, 99.

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, para. 125. 112

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that belonged to an old one. International law does prohibit seizure of territory by one State from another.

3. Absence of Formal Ceasefire Lines The line separating Russian forces in Crimea from the rest of Ukraine is not the subject of an international agreement. The rule that gives a (limited) privilege to ceasefire lines does not apply, there having been no agreement, even a localised one, to define and formalise such a line between Crimea and the rest of Ukraine. Ukraine, in the exercise of its domestic jurisdiction, has imposed restrictions on the movement of persons and goods across the administrative boundary line between Crimea and the rest of Ukraine. The UNHCR noted in 2016 that the restrictions are causing inconvenience at the crossing points at Chonhar, Kalanchak, and Caplynka.113 The human rights objection, however, concerns legislative and administrative measures of one State, not an agreed separation line between the State and a separatist area. Nor has there been any tacit understanding of divided competences within the territory of Ukraine. It will be recalled that, in other situations where a competing regime claims competence over part of an undisputed unified State territory, the two governing authorities have reached a modus vivendi, in some cases unwritten, in regard to practical matters. China’s practice concerning Taiwan is the example of such arrangement par excellence. China tacitly understands that for defined purposes (especially treaty relations concerning trade, investment, fisheries, etc.) a line separates Taiwan from mainland China. China does not deny that the authorities in Taiwan exercise various governmental competences and even accepts co-habiting certain international technical bodies with those authorities.114 In one of the classic ‘frozen conflicts,’ that in Moldova, the central government and the authorities of Transdniestria signed agreements on the mutual recognition of documents issued by their respective officials and also adopted an agreement on promotion of foreign invest113

OHCHR (note 43), para. 196.

See Andrew Serdy, Bringing Taiwan into the International Fisheries Fold: The Legal Personality of a Fishing Entity, British Yearbook of International Law 75 (2005), 183–221. 114

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ment applicable on their respective sides of the separation line.115 The central government of Georgia and the South Ossetian region of Georgia adopted an Agreement on 31 October 1994 to create a Joint Control Commission for cross-border policing.116 Though Ukraine and Russia know where their respective forces and administrative organs function, Ukraine has granted no such tolerance to the forces and organs of Russia in Crimea. Ukraine’s legislation contains preferential rules denying effect even to relatively routine governmental acts of the putative authorities in Crimea. Article 9 (3), Law on Securing the Rights and Freedoms of Citizens and the Legal Regime of the Temporarily Occupied Territory of Ukraine provides that documents and decisions by entities and officials instated by Russia in Crimea “shall be deemed null and void, and shall give rise to no legal consequences.”117 The scope of the legislation suggests Ukraine’s resolve in resisting entrenchment of a separate regime behind the administrative boundary of Crimea.

4. Absence of a Dispute Settlement Process No formal negotiation or other dispute settlement process is afoot involving a third party in respect of the unlawful annexation of Crimea as such.118 There are a range of judicial and arbitral proceedings, as noted in passing in section III. infra. However, these proceedings aim to address various matters ancillary to the putative separation of territory; they do not concern the settlement of an armed conflict or the resolution of the territorial dimension of the problem. They certainly do not anticipate or imply any possible acceptance by Ukraine of a new territorial status for the Crimean area. Given the constraints of the applicable jurisdictional instruments, the arbitral and judicial proceedings now underway will address the territorial dimension, 115 Agreement of 16 May 2001, discussed at ECtHR, Ilaşcu & others v. Moldova and Russia, Appl. No. 48787/99, Judgment of 8 July 2004, para. 174. 116 Memorandum on Measures of Providing Safety and Strengthening of Mutual Confidence between the Sides in the Georgian-Ossetian Conflict, 16 May 1996, available at: http://peacemaker.un. org/georgia-mou-mutual-confidence96 (accessed on 10 May 2017). 117 On Amendments to Article 7 of the Law of Ukraine “On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine” Regarding the Right to Education, 6 May 2014, No. 1237-VII, , available at: http://zakon2.rada.gov.ua/laws/anot/en/1237-18 (accessed on 10 May 2017). 118

As of March 2017.

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if at all, only in a lateral way, not as the main question in dispute. Russia, in any event, denies that those courts and tribunals have jurisdiction. As far as the Permanent Court of Arbitration press releases suggest, it seems that Russia will not appear in the Bilateral Investment Treaty (BIT) proceedings that have been instituted under the Russia-Ukraine BIT.119 In truth, the unlawful annexation is the main question in Crimea. There is, to date, no third-party process under which the parties on the ground are addressing that question. The attempts that Ukraine has made to negotiate with Russia in respect of Crimea have been to address breaches of CERD.120 Ukraine’s attempts to negotiate have been bilateral – instituted by Ukraine and, largely, rejected by Russia.121 The negotiations have not matched the intensity or duration of the dispute settlement processes associated with the so-called ‘frozen conflicts’. There has been little or no third party involvement, certainly not a “surge of diplomatic efforts.”122 And the negotiations, as noted, have not sought to deal with the unlawful occupation or with any possible future change in status of the area. The absence of negotiations or other settlement procedures in respect of the annexation of Crimea as such comes as no surprise. The international community does not treat the forcible seizure of territory by one State from another, in breach of a recognised inter-State boundary, as an ordinary unlawful act; it is a serious breach of See, e.g., Permanent Court of Arbitration, Press Release, PJSC Ukrnafta v. The Russian Federation and Stabil LLC et al. v. The Russian Federation, 2 May 2016, available at: https://pca-cpa.org/wpcontent/uploads/sites/175/2016/05/Press-release-dated-2-May-2016.pdf (accessed on 15 June 2017). 119

120 Ukraine refers to three rounds of bilateral negotiation sessions and “more than 20 diplomatic notes,” and it connects these to “issues of discrimination in Crimea”: ICJ, Application instituting proceedings (note 9), para. 23. The attempts to negotiate in respect of the TFC, and, later, in respect of arbitration under Art. 24(1) Convention, seem to have chiefly concerned the eastern regions of Ukraine, not the Crimean region. Ukraine’s Application does not expressly exclude the possibility that TFC claims might extend to Russia’s conduct in the Crimean area of Ukraine as well, nor does it say that negotiations in respect of the TFC did not touch on Crimea: ICJ, Application instituting proceedings (note 9), paras. 19–21. A division of labour between the two jurisdictional instruments – CERD for Crimea, Terrorism Financing Convention for the eastern regions – is maintained in the Request for the Indication of Provisional Measures of Protection, though, there too, it seems, in a non-exclusive way: Deputy Foreign Minister of Ukraine, Request for the Indication of Provisional Measures of Protection, 16 January 2017, paras. 7–10, 11–14, available at: http://www.icj-cij.org/docket/files/166/19316.pdf (accessed on 15 June 2017). 121

See ICJ, Application instituting proceedings (note 9), para. 23.

As seen in respect of the eastern Ukrainian oblasts of Donetsk and Luhansk: OHCHR (note 43), para. 3. As to whether the situation in eastern Ukraine could be described as a ‘frozen conflict,’ see Grant (note 5), IV. 122

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a fundamental rule of international law. The situation arising from such a breach is not receivable as an international claim. It is one thing to make a claim, even a rather tenuous one; it is not an international violation to make a claim that eventually fails.123 But prosecuting a territorial claim by threat or use of force is another matter. The situation arising from such aggression must, as a matter of legal obligation, be denied recognition by all.124 The annexation of Crimea is such a situation. It is consistent with this legal obligation that States and international organisations have not supported a process of settlement for Crimea such as those for the ‘frozen conflicts’. As to the procedures that Ukraine has invoked, in particular under the Statute of the ICJ and the compromissory clause of the CERD, Ukraine has taken the unlawfulness of the annexation as a given, not a matter to be placed sub judice. The annexation is noted in Ukraine’s Application instituting proceedings before the ICJ, an act by which “the Russian Federation brazenly defied the U.N. Charter,”125 but the Application in its statement of relief sought, does not ask for a reversal of the annexation or any new constitutional arrangement for the region, at least not in terms.126 An internal conflict (i.e., between separatists and an incumbent State) might be negotiated to a peaceful settlement. The settlement might entail a substantial departure from the status quo ante. For example, new constitutional arrangements might include autonomy, or greater autonomy, for the region in which the separatists had been active. No such options exist after the (international) act of aggression. Where such an act purports to change an inter-State boundary, non-recognition is obligatory. There is, in short, nothing to negotiate, nothing to settle. Writers have noted that the restriction of Ukraine’s pleadings in its ICJ Application to matters arising under the Terrorism Financing Convention and CERD respects the constraints of the available jurisdic-

123 See South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), Arbitral Award of 12 July 2016, PCA Case No. 2013-19, 281, para. 705. 124

As Art. 41 Articles on State Responsibility says it must by States.

125

ICJ, Application instituting proceedings (note 9), para. 5.

Ibid., para. 137. But see ibid., para. 137 (k), requesting that the Court adjudge and declare that Russia “[m]ake full reparation for all victims of the Russian Federation’s policy and pattern of cultural erasure through discrimination in Russian-occupied Crimea.” This head of relief, with its “full reparation” clause, is a catch-all. While avoiding any obvious over-reach, it would appear to leave the door open to a maximal reparative claim. 126

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tional instruments.127 Russia of course contests the point, arguing that the ICJ has no jurisdiction to reach Ukraine’s claims. The ICJ for purposes of the provisional measures phase accepted Russia’s jurisdictional argument in respect of the Terrorism Financing Convention;128 it accepted Ukraine’s jurisdictional argument in respect of CERD.129 Whatever the final result on the merits, Ukraine’s claims concern breaches of the conventional rules contained in the two treaties pleaded as the basis for jurisdiction. Ukraine is not a ‘claimant’ to Crimea; Ukraine is the sovereign in Crimea. As far as general international law is concerned, there is no question as to title to that region. For Ukraine to restrict its pleadings to the conventional rules not only has the virtue of a greater chance of success in face of a jurisdictional challenge. It also shows a proper appreciation that use of force furnishes no legal basis for territorial title – and no basis either for a claim.

V. Conclusion The existence of a settlement process is an important characteristic of a ‘frozen conflict’. If a situation involves no settlement process, the situation differs in significant ways from a ‘frozen conflict’. For one, parties engaged in a settlement process have an obligation to conduct themselves in that process in good faith; parties not engaged in any such process are not engaged with one another in a manner that makes the good faith obligation immediately relevant (even if it applies to them in some general way). In the ‘frozen conflicts’, the incumbent State finds itself in the frustrating 127 See, e.g., Beth Van Schaack, Ukraine v. Russia: Before the International Court of Justice, 2 February 2017, available at: https://www.justsecurity.org/37167/ukraine-v-russia-international-court-justice/ (accessed on 10 May 2017): “Notably, in none of these cases [ICJ, ICC, ECtHRs] is the legality of Russia’s use of force, per se, directly at issue, because there is no international court with jurisdiction over any claims Ukraine may have.” See also Gaiane Nuridzhanyan, Ukraine vs. Russia in International Courts and Tribunals, 9 March 2016, available at: https://www.ejiltalk.org/ukraine-versus-russia-ininternational-courts-and-tribunals/ (accessed on 10 May 2017): “Ukraine is prevented from putting the annexation of Crimea and the conflict in the east directly before the ICJ, since Russia has not made an ‘optional clause’ declaration accepting as compulsory the Court’s jurisdiction and, it hardly needs saying, the two States have not entered into any special agreement to submit a case to the Court”. 128 ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, paras. 65–77, available at: http:// www.icj-cij.org/docket/files/166/19394.pdf (accessed on 15 June 2017). 129

Ibid., paras. 32–39, 55–61, 78–86, 87–98.

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position of having to maintain a certain tolerance toward the forces that seek its dismemberment. The incumbent State, to be sure, will be unfriendly to the separatist entity. Periodic flare-ups of armed conflict occur. Some of these are extremely costly in material and human terms. However, a patina of juridical stability attaches to the situation. The ceasefire lines are recognised in an agreement or agreements; the negotiations are overseen or mediated by international actors. Attempts to resolve the conflict by other means, including judicial procedure, thus are likely to meet the objection that a settlement process is already in train. Russia, unsurprisingly, has raised just such an objection in respect of the conflict in the eastern region of Ukraine. In oral argument in the provisional measures phase at the ICJ, Russia asserted that the Package of Measures adopted on 12 February 2015 at Minsk was “a significant step … to de-escalate the conflict,” and that the Measures “are repeatedly referred to by international actors as the only uncontested solution to the conflict.”130 The difficulty is that the Minsk process so far has done little to resolve the conflict. If it is the “only uncontested solution,” then a real solution might well prove elusive. The better view is that the conflict in eastern Ukraine is not, as yet, a ‘frozen conflict,’131 but its entrenchment is underway. A ‘frozen conflict’, though displaying a degree of stability at local level, conduces to significant uncertainty overall. A sponsor assures that the separatists remain a real force but stops short of supporting their independence. The incumbent State rejects the most extreme claims of the separatists – the independence claims – but does not know what the final settlement of the conflict will look like or when it might be achieved. The uncertainty, in turn, makes it difficult for the incumbent State to take a robust position in the defence of its territorial integrity, as Georgia discovered in 2008 when Russia invoked breach of good faith against it.132 A twilight state of no peaceful settlement and frustration of the right of self-defence is one of the hallmarks ICJ, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Public Sitting of 7 March 2017, Verbatim Record CR 2017/2, 18, para. 10 (Rogachev for Russia) (emphasis added), available at: http://www.icj-cij.org/docket/files/166/19368. pdf#view=FitH&pagemode=none&search=%22presiding%22 (accessed on 15 June 2017). 130

131

Grant (note 5), IV.

Gregory Dubinsky, The Exceptions That Disprove the Rule? The Impact of Abkhazia and South Ossetia on Exceptions to the Sovereignty Principle, Yale Journal of International Law 34 (2009), 241, 244–246. 132

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of a ‘frozen conflict’. Armed measures in self-defence by Ukraine in its Crimean area are impractical; the occupying State has vast military superiority. However, the legal position of Ukraine in Crimea remains clear. The situation in Crimea in this way differs from the ‘frozen conflicts’.

Self-Determination and Secession Under International Law: Nagorno-Karabakh MILENA STERIO

ABSTRACT: The principle of self-determination grants minority groups defined as “peoples” the right to auto-determine their political future. This principle, while stemming back to postWorld War I ideologies, has guided decolonisation and has served as the theoretical underpinning of former colonies’ independence quests. In the more recent decades, however, questions have surfaced regarding this principle’s applicability in the non-decolonisation paradigm: can secessionist movements rely on the principle of self-determination to justify their independence demands? Or, does the principle of self-determination in the non-decolonisation paradigm only bestow a right to internal autonomy on secessionist entities, while obligating them to remain within the pre-determined territory of their mother States? This article will examine the principle of self-determination in the non-decolonisation paradigm with a particular emphasis on the disputed Nagorno-Karabakh region. This article will discuss how the principle of self-determination applies to Nagorno-Karabakh and whether it leads to the conclusion that the people of Nagorno-Karabakh are entitled to independence from Azerbaijan. This article will conclude that the principle of self-determination does not lead toward the conclusion that Nagorno-Karabakh can legally secede from Azerbaijan, absent a positive right of secession under international law. KEYWORDS: Self-Determination, Secession, People, Independence, Azerbaijan, Armenia, Nagorno-Karabakh, Territorial Integrity, Sovereignty

I. Introduction … the fact remains that claims for self-determination do not disappear, but continue to grow in vehemence and, as viewed over a longer span of history, may eventually lead to a reconfiguration of the states, irrespective of the ‘legitimacy’ of such claims.1

Professor of Law and Associate Dean, Cleveland-Marshall College of Law. Joshua Castellino, International Law and Self-Determination: Peoples, Indigenous Peoples, and Minorities, in: Christian Walter/Antje von Ungern-Sternberg/Kavus Abushov (eds.), Self-Determination and Secession in International Law (2014), 44. 1

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International law grants “peoples” the right to self-determination. The notion of self-determination stems back to the end of World War I and Woodrow Wilson’s idea that minority groups ought to become capable of determining their future political fate. Self-determination served as the driving ideology behind the decolonisation movement post World War II, allowing colonised peoples the right to become free of coloniser oppression through the creation of their own independent States.2 Postdecolonisation, the contours of the right to self-determination under international law became more uncertain. It is unclear whether the right applies equally in the nondecolonisation context, and even if it does, it is uncertain whether non-colonial peoples have solely the right to internal self-determination and autonomy within their mother State, or if such non-colonial peoples can rely on external self-determination, to claim independence through remedial secession. Various non-colonial peoples have claimed the right to self-determination and secession; if international law recognised a positive right of external self-determination leading to remedial secession, this would obviously conflict with the norm of territorial integrity, preserving the territory of each existing State. This tension in international law, between preserving the territorial integrity of States while also bestowing group rights on peoples, persists today. The International Court of Justice (ICJ) did not provide much clarity on this subject in its 2010 Advisory Opinion regarding the independence of Kosovo.3 Other secessionist conflicts remain legally unsolvable, in light of uncertainty regarding the right to self-determination and secession. One such conflict is Nagorno-Karabakh, a small region in the Caucasus, which is de jure a part of Azerbaijan, but which has been occupied by Armenia since 1994. This article will examine the Nagorno-Karabakh conflict through the lens of selfdetermination and secession. This Article will first provide historical background on Nagorno-Karabakh (II.), before proceeding to examine the relevant international law norms and principles of territorial integrity, uti possidetis, self-determination, and secession (III.). The recent Kosovo secession (IV.) will then be discussed before applying the above-mentioned international law doctrine and the Kosovo “precedent” to the situation in Nagorno-Karabakh (V.). The article will conclude that the people of 2

Antonio Cassese, Self-Determination of Peoples – A Legal Reappraisal (1995), 11–27.

ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403. 3

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Nagorno-Karabakh do not have the right to secede from Azerbaijan because international law does not currently recognise a positive right of secession for peoples. Because international law merely tolerates secession, without recognising an express right to secede, the people of Nagorno-Karabakh are only entitled to exercise self-determination rights internally, within their mother State of Azerbaijan. The people of NagornoKarabakh may be able to argue that they have a right to external self-determination, if they can establish that it would not be possible for them to meaningfully exercise internal self-determination rights within Azerbaijan. In this instance, the people of Nagorno-Karabakh would have to peacefully negotiate with Azerbaijan about vehicles for self-determination, which may include secession, like in the Kosovo case. Presently, international law does not bestow on the people of Nagorno-Karabakh the right to claim secession from Azerbaijan. If international law were to evolve in the future in order to embrace a positive right of secession, this potential development would benefit the people of Nagorno-Karabakh by allowing them to exercise the right of secession.

II. Factual Background: Nagorno-Karabakh Nagorno-Karabakh is a mountainous region in the Caucasus which had, for thousands of years, been a transit zone for different ethnic groups. Over the centuries, different empires clashed for control over this region – Russia, Persia, and the Ottoman Empire attempted to conquer Nagorno-Karabakh throughout history, and many of these attempts were accompanied by the influx of ethnic groups. For example, when Russians established control over the region in the 19th century, this lead to a heavy influx of Armenians. “Russia envisaged consolidating its control over the Whole Caucasus region by means of a policy of Christianization and settlement of Armenians.”4 In 1920, the Russian Red Army invaded the Caucasus and by 1921, the Soviet leadership decided to keep Nagorno-Karabakh under Azeri rule.5 NagornoKarabakh was purposely placed within the new Soviet Republic of Azerbaijan, despite its predominantly Armenian population, and thus positioned as a “sore spot” between the Azeris and the Armenians.

4

Heiko Kruger, Nagorno-Karabakh, in: Walter et al. (note 1), 215.

5

Ibid.

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GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 Stalin knew that by including the disputed and by then majority Armenian-populated region wholly within the boundaries of the new Soviet Republic of Azerbaijan, it would forever remain a sore spot between the two republics that would ensure Moscow’s position as power broker.6

The region was relatively peaceful during the Soviet era, but conflict flared up in the late 1980s, when, in light of Gorbachev’s loosening of the tight Soviet control over the region, Armenians in Nagorno-Karabakh demanded that the region join Armenia.7 Azerbaijan refused and thousands of refugees, Armenian and Azeri, were forced to flee the region as a result of ongoing violence. In 1989, the Supreme Court of Armenia proclaimed the unification of Nagorno-Karabakh and Armenia.8 By the spring of 1991, the region was in chaos as Soviet troops joined in the fighting that had already involved Azeri and Armenian forces. After the collapse of the Soviet Union, Nagorno-Karabakh rejected unification with Armenia and instead proclaimed independence.9 Between 1992 and 1993, Armenians gradually occupied NagornoKarabakh and began to control its territory, as well as surrounding Azeri territory. In order to halt the conflict, mediation initiatives between Azerbaijan and Armenia were attempted by several countries, including Russia, Kazakhstan, Iran, Turkey, and France. Most significant mediation efforts were led by the then Conference on Security and Cooperation in Europe (now the Organisation for Security and Cooperation in Europe), and in particular, the so-called “Minsk Group” countries, a subset of CSCE member States.10 Unfortunately, little progress has been made through the Minsk Group involvement. Azerbaijan has refused to negotiate with Nagorno-Karabakh as a party to any peace talks because Azerbaijan considers the region as part of its own territory and not an independent State actor. Armenia has insisted that it had not played any role in Nagorno-Karabakh’s struggle for independence and that the regional representa-

Patricia Carley, Nagorno-Karabakh: Searching for a Solution – A United States Institute of Peace Roundtable Report, Peaceworks, United States Institute of Peace 25 (1998), 1. 6

7

Kruger (note 4), 215.

8

Ibid.

9

Ibid.

Ibid. The Minsk Group countries include Armenia, Azerbaijan, Belarus, the Czech Republic, France, Germany, Italy, the Russian Federation, Sweden, Turkey, and the United States. 10

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tives should be a party to any settlement talks.11 To date, Nagorno-Karabakh continues to insist that it is an independent entity, although it has not been recognised by any other country, including Armenia.12 Armenia has refused to withdraw troops from Nagorno-Karabakh and the surrounding Azeri territory until the region’s status is resolved. And Azerbaijan insists that its territorial integrity must be respected and that Nagorno-Karabakh should continue to exist, with a significant degree of autonomy, within the Azeri mother State. Overall, an estimated 25,000 individuals, Armenian and Azeri, have perished as a result of the ongoing conflict in Nagorno-Karabakh, and approximately 350,000 Armenians and almost 800,000 Azeris have been displaced.13 In April 2016, violence erupted again in Nagorno-Karabakh, resulting in four days of heavy fighting between Armenian and Azeri forces and in 200 human casualties.14 As of today, the status of Nagorno-Karabakh remains disputed and uncertain, and violence could erupt again at any time.

III. International Law on Secession In order to assess the legal issue of whether Nagorno-Karabakh has the right to secede from Azerbaijan, this section will examine the most relevant international law principles and doctrines, including the norms of territorial integrity and uti possidetis (A.), self-determination (B.), and remedial secession (C.). Each of these international law theories is directly relevant to the Nagorno-Karabakh case and a discussion thereof will shed light on this difficult situation.

Ibid. It should be noted that the Minsk Group countries have insisted that the parties should negotiate an agreement, and that in the absence of such an agreement, the Minsk Group countries are unable to push one solution over another. Ibid., 231. 11

12

Ibid., 216.

13

Ibid.

Nina Casperson, Will there be peace in Nagorno-Karabakh? Two things stand in the way, The Washington Post, 31 May 2016, available at: https://www.washingtonpost.com/news/monkey-cage/ wp/2016/05/31/nagorno-karabakhs-frozen-conflict-has-two-big-obstacles-to-a-peaceful-solution/ (accessed on 17 November 2016). 14

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GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 A. Territorial Integrity and Uti Possidetis

The international law norm of territorial integrity protects the territorial existence of States. It is a key component of State sovereignty and a fundamental norm of the international legal order. The principle is embedded in the Charter of the United Nations (UN Charter)15. Article 2 (4) UN Charter provides that “no state shall use force against the territorial integrity or political independence of any other state.”16 The prohibition flows from the Charter’s traditional conception of State sovereignty. Sovereignty has historically implied that States were free to engage in whatever behaviour they saw fit within their own borders. Moreover, States could not intervene in the internal affairs of other States, no matter how reprehensible such affairs may have been. Sovereignty functioned as a shield, protecting States from intrusion by external actors, and shielding their borders from outside interference and attempts at border alteration. The principle of territorial integrity of States is also a norm of customary international law and as such cannot be easily derogated from.17 Azerbaijan has continuously invoked the principle of territorial integrity in order to justify its claim to Nagorno-Karabakh – that Nagorno-Karabakh belonged to Azerbaijan de jure and that any independence attempts are illegal under international law because they disrupt Azeri territory. The principle of territorial integrity is closely linked to another fundamental principle of international law, that of uti possidetis. The principle of uti possidetis provides that the territorial borders of various units were established during colonial times, and that newly created States inherited boundaries from their colonial rulers. According to the ICJ, uti possidetis is “a principle which upgraded former administrative delimitations, established during the colonial period to international frontiers …”18 The main purpose behind the principle of uti possidetis was to secure respect for territorial borders at the time when independence was achieved. In other words, the function of this principle is to secure “the essential requirement of stability in order to

15

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

16

Article 2 (4) UN Charter.

17

Kruger (note 4), 225.

ICJ, Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22 December 1986, ICJ Reports 1986, 554, para. 23. 18

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survive, to develop and gradually to consolidate their independence in all fields.”19 Uti possidetis protects an existing boundary, regardless of the validity of the same boundary – thus, uti possidetis may protect unfair or unreasonable boundaries, in order to prevent territorial squabbles by newly emerging States. An uncertainty persists whether uti possidetis applies in the decolonisation context only, or if this principle can be applied in non-decolonisation secessionist conflicts, resulting in the creation of new State entities. The ICJ discussed uti possidetis in the Frontier Dispute Case (Burkina Faso v. Mali) quoted above. The world court’s judgment is ambiguous on this issue – on the one hand, the ICJ develops general statements on uti possidetis implying that the principle was generally applicable, outside of the decolonisation context, but on the other, the ICJ describes the principle as one connected to the phenomenon of obtaining of independence.20 The ICJ held that “[t]here is no doubt that the obligation to respect pre-existing frontiers in the event of State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis.”21 Although the ICJ left the issue of uti possidetis’ applicability outside of the decolonisation context unresolved, the Badinter Commission, in the context of the dissolution of the former Yugoslavia, specifically recognised this principle as one of general scope and application. The Commission held that “[u]ti possidetis, though initialy applied in settling decolonization issues in America and Africa, is today recognized as a general principle …” and that the principle was applicable to “the obtaining of independence, wherever it occurs.”22 The Badinter Commission applied uti possidetis to the former Yugoslav republics, elevating their intra-State status to that of international boundaries. This approach has been criticised by some as not consistent with international law. Hurst Hanuum observed that “[t]his opinion is dubious if it purports to identify a rule of international law which requires the maintenance of existing administrative borders outside the colonial context.”23 19

Ibid., para. 26.

Anne Peters, The Principle of Uti Possidetis Juris: How Relevant is it for Issues of Secession?, in: Walter et al. (note 1), 110–111. 20

21

ICJ, Frontier Dispute Case (note 18), para. 20.

Conference on Yugoslavia, Arbitration Commission Opinion No. 3, 31 International Legal Materials (I.L.M.) 1499 (1992), para. 2. 22

Hurst Hanuum, Self Determination, Yugoslavia and Europe: Old Wine in New Bottles, Transnational Law and Contemporary Problems 3 (1993), 57, 66. 23

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Others, however, have defended the Badinter Commission’s approach by emphasising that the ICJ judgment in Burkina Faso v. Mali was ambiguous at best and that the Badinter Commission “was entitled to develop further the law in one particular direction which was already … encapsulated in the ICJ’s case law.”24 It is helpful to analyse the principles of territorial integrity and uti possidetis together, in order to determine their aim and purpose. The ICJ has held in the Burkina Faso v. Mali case that the “obvious purpose” of uti possidetis was “to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.”25 Moreover, the world court explained that “the essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved.”26 Thus, the purpose of uti possidetis, according to the world court, is to elevate prior colonial administrative boundaries to the status of international frontiers, and to then protect the latter from further encroachment and interference. The Badinter Commission extended the application of uti possidetis to former Yugoslav republics, protecting intra-State administrative borders by raising them to the level of new international ones as Yugoslavia was breaking apart. If uti possidetis were to apply to secessionist conflicts, like the one in Nagorno-Karabakh, it could presumably resolve the secessionist conflict by its reference to prior existing administrative boundaries. A newly founded state can therefore only rely on the principle of territorial integrity vis-àvis a breakaway region if the region had belonged to its administrative area beforehand in accordance with the uti possidetis rule and correspondingly lay at all within its national borders after the founding of the state.27

In other words, the principle of territorial integrity applies to a newly-created State, whose borders are prior administrative delimitations within another larger State, through the application of uti possidetis. The newly-created State’s territory and sovereignty is thus shielded from further territorial encroachments, and its borders become protected through both principles of territorial integrity and uti possidetis. 24

Peters (note 20), 111.

25

ICJ, Frontier Dispute Case (note 18), para. 20.

26

Ibid., para. 23.

27

Heiko Kruger, The Nagorno Karabakh Conflict: A Legal Analysis (2010), 42.

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Under this reasoning, Nagorno-Karabakh belongs to Azerbaijan, because NagornoKarabakh was a territory within the Soviet republic of Azerbaijan, and because the principle of uti possidetis applied to Azerbaijan at its independence, sealing its existing Soviet boundaries and elevating them to the status of international frontiers. The above reasoning, however, may appear contrary to the principle of self-determination. The ICJ recognised this tension in the Burkina Faso v. Mali opinion, when it held that despite legitimate self-determination struggles, the “maintenance of the territorial status quo in Africa is often seen as the wisest course.”28 The ICJ further held that [t]he essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.29

It appears, from reading the Burkina Faso v. Mali opinion, that the principle of self-determination may be of lesser importance in the creation of new States, and that it may have to yield to uti possidetis, in order to preserve order and stability. The section below will address self-determination, its evolution and its applicability in the non-decolonisation context, in order to attempt to resolve the tension between selfdetermination and the territorial integrity of States.

B. Self-Determination

Self-determination refers to a people’s right to choose its political, economic, and social status. It may not necessarily conflict with territorial integrity and uti possidetis because self-determination does not always entail a territorial separation of the selfdetermination seeking people from its mother State, and because, even in cases where self-determination leads toward remedial secession, self-determination applies before independence, whereas territorial integrity and uti possidetis apply post-independence.30 This section will explore the history behind the principle of self-determination, as well as its various iterations in the post-decolonisation era. 28

ICJ, Frontier Dispute Case (note 18), para. 25.

29

Ibid.

30

Peters (note 20), 126.

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The right to self-determination was initially expressed in the American and French revolutions at the end of the 18th century, and it was considered as a principle which would guarantee democratic consent within an emerging State entity.31 Self-determination was subsequently used as the driving ideology behind Latin American decolonisation, when former Spanish and Portuguese colonies sought to establish independent States.32 Thus, through self-determination independence was gained for colonially defined territorial units (the same approach would later be used in Africa). After World War I, United States’ President, Woodrow Wilson, applied the concept of self-determination to minorities, offering them the choice of political belonging through plebiscites. In a 11 February 1918 speech to the United States Congress, Wilson famously stated that “self-determination is not a mere phrase; it is an imperative principle of action which statesmen will henceforth ignore at their peril.”33 Wilson’s ideas were translated somewhat directly onto the dissolution of the Austro-Hungarian and Ottoman Empires in the wake of World War I, resulting in the creation of multiple smaller States (Austria, Hungary, Turkey, Czechoslovakia, Yugoslavia, Finland, Estonia, Latvia, Lithuania, and Poland). During the same period, Lenin relied on self-determination in order to express the idea of peoples expressing their political will, in order to rid themselves of bourgeois oppression.34 During World War II, self-determination was used by the Nazi regime to justify the reunification of German nations.35 In the preUnited Nations Charter era, however, self-determination was more of a political ideology rather than a legal norm. The Covenant of the League of Nations did not mention self-determination, and no international treaty espoused self-determination prior to the United Nations Charter itself. In the United Nations’ era, self-determination became one of the main vehicles of decolonisation. Article 1 UN Charter states that one of the main purposes of the United Nations is “[t]o develop friendly relations among nations based on respect for Thomas M. Franck, The Emerging Right to Democratic Governance, American Journal of International Law (AJIL) 92 (1998), 46. 31

32

Alejandro Alvarez, Latin America and International Law, AJIL 3 (1909), 269, 271.

33

56 Congressional Record, 11 February 1918, 8671.

Anthony Whelan, Wilsonian Self-determination and the Versailles Settlement, International and Comparative Law Quarterly 43 (1994), 99. 34

Srdjan Cvijic, Self-determination as a Challenge to the Legitimacy of Humanitarian Intervention: The Case of Kosovo, German Law Journal 8 (2007), 57. 35

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the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”36 Self-determination continued to transform from a political ideology to a legal norm through the International Covenant on Civil and Political Rights (ICCPR)37 in 1966 as well as through several General Assembly resolutions. Article 1 ICCPR provides that “[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”38 The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples provides in Article 2 that “[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.”39 In 1970, the so-called Friendly Relations Declaration attempted to enshrine the legal norm of self-determination within the United Nations system, by declaring that States have a duty to refrain from forcible actions which would deprive peoples of their right to self-determination, and that colonised peoples have the right to self-determination under the United Nations Charter.40 Three most relevant questions in modern-day international law regarding the right to self-determination include how to define peoples for the purposes of self-determination, whether the right extends beyond the decolonisation context, and what the contours of the right are. First, many in the international community agree that defining the term “people” for the purposes of self-determination is a difficult task.41 Scholars have elaborated that criteria for peoplehood involve a subjective and an objective element. The subjective element consists of a commonly held belief, by all members of a group, that they constitute a unit and that they share a common history, language, culture, heritage, and political aspirations. The objective elements examines whether members of a particular group share commonalities, such as those 36

Art. 1 UN Charter.

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171 (ICCPR). 37

38

Art. 1 ICCPR.

Declaration on the Granting to Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) of 14 December 1960. 39

40 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 (Friendly Relations Declaration). 41

See, e.g., Castellino (note 1), 32.

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mentioned previously (language, culture, ethnicity, political will). Another objective element that scholars have looked at is whether a group has claims to a particularly delineated territory.42 Moreover, most agree that peoples are different from minorities – the right to self-determination attaches to the former but not the latter. Minorities have been defined as follows: a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nations of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, religion or language.43

The main distinction between minorities and peoples lies in the notion that minorities live within a larger mother State with a representative government, and that minorities may not have a specific territorially-linked autonomy claim. Moreover, peoples are typically viewed as “whole peoples” or an entire group within a specific nation.44 Minorities, on the other hand, may constitute simply pockets or smaller subgroups of a whole people. In practice, the distinction between peoples and minorities may be extremely difficult to draw. Do indigenous groups qualify as peoples, or should one view those as minorities? If one considers Palestinians, Tibetans, and Kurds as peoples, should the same status attach to the Basque, Kashmiris, Chechens, and Tamils? Do the citizens of Nagorno-Karabakh constitute a “people”? If one conceives of a people as a “whole people” or an entirety of a nation, one may have serious questions about whether the inhabitants of Nagorno-Karabakh do constitute a people. It may be that they are simply Armenian, or Azeri, or a mixture of the two. Assuming that the citizens of Nagorno-Karabakh are a people, what kind of a right to selfdetermination may they have? This issue will be explored fully in section V. below. Second, it is disputed whether the right to self-determination applies to cases which do not involve decolonisation. It may be argued that the United Nations Charter, the ICCPR, and the two General Assembly resolutions specifically refer to the decolonisation context and would not be relevant for today’s secessionist conflicts. Specifically relevant here is the 1970 Friendly Relations Declaration, which posits the See, e.g., Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, Denver Journal of International Law and Policy 31 (2003), 373. 42

Francesco Capotorti, Special Rapporteur, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN.4/Sub.2/384/Rev.1 (1977). 43

44

Castellino (note 1), 33.

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right to self-determination within the decolonisation paradigm and bestows it on peoples whose government does not represent their interests. Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.45

Many have interpreted the Friendly Relations Declaration as not only applying to those peoples whose governments do not act in compliance with principles of “equal rights” and “self-determination of peoples.” Scholars have based this argument upon a careful analysis of the Declaration’s overall textual provisions, which mention the term “self-determination” a total of eight times, with the first seven mentions occurring either as a general reference or in the decolonisation context.46 In addition, scholars have arrived at this conclusion based on an examination of the Declaration’s negotiating record, which reflects numerous States’ concerns about the possible negative impact that a broad right to self-determination would have on existing State boundaries.47 Moreover, scholars have argued that State practice at the time that the Declaration was adopted clearly indicates State support for self-determination in the decolonisation context only.48 Finally, scholars have pointed out that even if the Declaration were read to confer a broad right of self-determination, this would not imply that such a right would automatically become a part of international law. According to prominent authors, international law did not contain, in 1970, a customary norm authorising self-determination of non-colonial peoples, and even today, it may be argued that States show extreme reluctance to recognise self-determination as a norm of law outside of the decolonisation context.49 45

Friendly Relations Declaration.

See, e.g., Milena Sterio, The Right to Self-Determination under International Law: “Selfistans”, Secession and the rule of the Great Powers (2013), 14. 46

47 Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-Operation among States, UN General Assembly, 25th Sess., Suppl. 18, 99, 98, UN Doc. A/8018 (1970).

See Donald L. Horowitz, A Right to Secede?, in: Stephen Macedo/Allen Buchanan (eds.), Secession and Self-Determination (2003), 50, 60. 48

49 See, e.g., Ian Brownlie, Principles of Public International Law (7th. ed. 2008), 601–602; Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th ed. 1997), 334, 339–340; James Crawford, State Practice and International Law in Relation to Secession (1999), 114.

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The right to self-determination has been invoked nonetheless post-decolonisation. Some scholars have argued that international law has evolved to embrace the right to self-determination outside of the decolonisation context. This argument is based in part on an overall assessment of the Friendly Relations Declaration, read in context with the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, which both bestow a right of “all peoples” to self-determination, as well as with subsequent United Nations’ declarations in the 1990s, affirming this right for linguistic, national, or cultural groups.50 Moreover, scholars in the late 20th century expressed the idea that all peoples should have a right to self-government through meaningful choice and democratic processes. This idea applies both in the decolonisation as well as in the non-decolonisation paradigms. International law’s deepening devotion to democracy remains what is has long been – a commitment above all to full participatory rights within established states. Emerging norms recognizing a right to self-government lend support to separatist claims principally when those same norms have already been profoundly, irrevocably breached.51

In addition to the scholarly argument about the evolving right of self-determination for all peoples, State practice beginning in the late 20th century reflects a willingness on behalf of many States to entertain the possibility of democratic principles in examining separatist and self-determination claims. In 1994, the United Nations Security Council authorised a military intervention in Haiti, in order to restore “the legitimately elected President.”52 Moreover, States have supported plebiscites across the globe, in order to assess the will of various peoples to remain, or not, within a larger mother State. Such plebiscites have occurred in East Timor, Quebec, and Scotland and have enabled peoples to have a voice in choosing their future political fate.53 Separatist groups have also relied on the right to self-determination, starting in the late 20th century, in order to provide legal basis to their claims. The Quebecois citizens of Canada claimed that they were entitled to self-determination in the 1990s, 50

See Sterio (note 46), 12–13.

Diane Orenlichter, International Responses to Separatist Claims: Are Democratic Principles Relevant?, in: Macedo/Buchanan (eds.) (note 48), 21. 51

52

SC Res. 940 of 31 July 1994.

Sterio (note 46), 13; Andrew Sparrow/Claire Phipps/Paul Owen, Scottish independence referendum: Scotland vote no – as it happened, The Guardian, 19 September 2014, available at: https://www. theguardian.com/politics/scottish-independence-blog/live/2014/sep/18/scottish-referendum-resultslive-coverage-of-the-independence-vote (accessed on 21 November 2016). 53

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and so did Serbs living in the newly emerging State of Bosnia and Herzegovina during the same period.54 More recently, Kosovar Albanians have claimed the right to selfdetermination from Serbia, and so have South Ossetians and Abkhazians with respect to Georgia. The ICJ somewhat infamously failed to pronounce itself on the issue of self-determination in the non-decolonisation context in its Kosovo opinion, where it held that the Kosovar declaration of independence was lawful under international law, without declaring whether the Kosovar Albanians had the right to self-determination.55 Some scholars have attempted to separate legitimate self-determination claims from illegitimate ones by arguing that the right to self-determination attaches only to peoples who lay a territorial claim to a clearly pre-defined territorial unit;56 in practice, however, it is difficult to accurately assess the legitimacy of competing territorial claims. In sum, it is unclear in international law whether the right to selfdetermination exists outside of the decolonisation paradigm, and even if the right does exist, it is unclear what its parameters may be. With respect to Nagorno-Karabakh, the right to self-determination would attach to the people living in this region only if one were to conclude that self-determination clearly extends to non-colonial peoples. If one adopts the view that self-determination should be confined to the decolonisation paradigm, then the people of Nagorno-Karabakh may not be entitled to rely on this right. Third, it is unclear what the contours of the right to self-determination may be outside of the decolonisation paradigm. Self-determination of peoples can be achieved through various ways: through autonomy, self-government, free association, or, in the most extreme cases, through separation from the mother State and the formation of a new State. Self-determination exists on two distinct levels: through internal means of expressing autonomy, or through external means, leading toward secession.57 Many peoples have been able to exercise their right to internal self-determination within a larger mother States. Such has been the case for the Quebecois in Canada, the Scots in Great Britain, the Catalans in Spain; in addition, various other minority groups with 54

Sterio (note 46), 13.

55

ICJ, Kosovo Opinion (note 3).

Stefan Oeter, Recognition and Non-Recognition with Regard to Secession, in: Walter et al. (eds.) (note 1), 54 (“There has never been any serious international support for a claim of self-determination raised by a simple ‘ethnic group’ having no firm territorial basis in a pre-existing political entity”). 56

57

Sterio (note 46), 18–19.

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statuses falling short of peoplehood have had internal rights recognised within larger federal States, such as in Brazil, Australia, the former Yugoslavia, etc.58 The right to internal self-determination, because of its less intrusive nature and its respect for the principle of territorial integrity of existing States, is thus less controversial and can be exercised meaningfully within most contexts. The right to external self-determination, which is exercised through a people’s separation from the mother State, is more difficult to assess legally, in light of competing principles of territorial integrity and uti possidetis, as discussed above. States have been reluctant to recognise the existence of the right to external self-determination outside of the decolonisation context. No international treaties address the principle of self-determination directly, and the international documents discussed above, such as the Friendly Relations Declaration, do not shed light on how one is supposed to distinguish between internal and external self-determination and on whether the latter is ever available to non-colonial peoples.59 Most international law scholars would agree that in light of this situation, the right to external self-determination accrues only in the most extreme instances where a people’s right to internal self-determination has not been respected by the mother State.60 National and international courts have addressed the issue of self-determination a handful of times, and the most relevant cases on the distinction between internal and external self-determination include the Aaland Islands Case and the Quebec Case. In addition, the Badinter Commission has discussed self-determination issues and the ICJ tangentially addressed these in the Kosovo Opinion. The Aaland Islands are a small island nation situated between Finland and Sweden. When Finland gained independence following World War I, Aaland Islands became a part of the new Finnish State.61 Aalanders claimed that they were ethnically Swedish and sought to separate from Finland in order to join Sweden. This exercise would suggest that Aalanders, as a people, would exercise their right to external self58

Sterio (note 46), 19.

See Christian Walter/Antje von Ungern-Sternberg, Self-Determination and Secession in International Law – Perspectives and Trends with Particular Focus on the Commonwealth of Independent States, in: Walter et al. (note 1), 2 (“the exact contents of the right [to self-determination] remain a matter of dispute: who is entitled … Is the right, due to its historical origins, solely applicable in situations of decolonization …” “And what exactly does self-determination comprise: minority rights, autonomy or, as a matter of last resort, a right to secession …”). 59

60

See, e.g., Scharf (note 42), 381.

61

See League of Nations Official Journal, Special Suppl. No. 3, at 5–10 (1920).

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determination in order to secede from Finland and merge with Sweden. The Aaland Islands case ended up before the Commission of Rapporteurs, operating within the auspices of the League of Nations; the Commission held that the Aalanders had rights to various form of autonomy within Finland, but that the right to separate from Finland would not be triggered unless Finland disrespected the Aalanders’ meaningful exercise of autonomy within Finland.62 The Commission suggested that secession could be available as a “last resort when the State lacks either the will or the power to enact and apply just and effective guarantees” for minority group rights.63 A similar view was expressed decades later by the Supreme Court of Canada, in the Quebec case.64 The Quebecois population of Canada had, throughout the second half of the 20th century, demanded greater rights within Canada. These demands culminated in a 1995 referendum in which the Quebecois were asked to express their view on whether to separate from Canada to form an independent State of Quebec. By an extremely slim margin, the Quebecois voted to remain a part of Canada; in light of such uncertain referendum results, the Canadian Parliament requested the Supreme Court to issue an opinion on the legality of the proposed Quebecois secession. The Canadian Supreme Court distinguished between the right to internal self-determination versus the right to external self-determination. The Court defined the former as “a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state” and the latter as arising “in only the most extreme cases” and “potentially tak[ing] the form of the assertion of a right to unilateral secession.”65 The Court suggested that when a people’s right to self-determination is “being totally frustrated” internally, that people may be entitled to exercise external self-determination, through remedial secession.66 However, the Court was careful to analyse the right to self-determination within the larger context of territorial integrity of States. The Court held that the exercise of any self-determination right “must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the

62 The Aaland Islands Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, LN Doc. B7/21/68/106 (1921). 63

Ibid.

64

Supreme Court of Canada, Reference re Secession of Quebec, 20 August 1998, 2 S.C. Res. 217.

65

Ibid., para. 126.

66

Ibid., para. 135.

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stability of relations between sovereign states.”67 In addition, the Court concluded that “the general state of international law with respect to the right of self-determination is that the right operates within the overriding protection granted to the territorial integrity of ‘parent’ states.”68 In other words, the right to self-determination should be exercised internally, while protecting the territorial integrity of the existing mother State, and only in the most extreme circumstances and cases may a people claim the right to external self-determination. The Canadian Supreme Court concluded that the Quebecois people in Canada had full respect of their internal selfdetermination rights, and the Court thus declined to elaborate on circumstances which would lead toward the possibility of external self-determination. Thus, the Aaland Islands Commission and the Canadian Supreme Court espoused similar views on the distinction between internal and external self-determination, while using different terminology. [T]he Canadian Supreme Court, like the Aaland Islands Commission, reaffirmed the supremacy of territoriality and the territorial integrity of existing stats over any notions of self-determination; the latter may disrupt territoriality only in the most extreme circumstances, where a people is oppressed by the mother state.69

A similar view of self-determination as existing within the bounds of the larger, and perhaps more relevant, norm of State territorial integrity was expressed by the Badinter Commission, in the context of the dissolution of the former Yugoslavia. The Badinter Commission held that international law “does not spell out all the implications of the right to self-determination” and that the right to self-determination “must not involve changes to existing frontiers at the time of independence.”70 In the Kosovo Case, the ICJ was asked to issue an advisory opinion on the legality of the Kosovar Declaration of Independence under international law.71 The more specific circumstances of the Kosovo Case will be analysed below, but for the purposes of this section, it suffices to highlight that the world court refused to discuss the right to self-determination in this opinion or to elaborate on wh en this right may accrue. 67

Ibid., para. 130.

68

Ibid., para. 131.

69

Sterio (note 46), 32.

70

Conference on Yugoslavia Arbitration, Commission Opinion No. 2, 31 I.L.M. 1497 (1992).

71

ICJ, Kosovo Opinion (note 3).

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Instead, the world court held that the Kosovar declaration of independence itself did not violate any specific international law norms, without deciding whether Kosovar Albanians had a positive entitlement to self-determination, leading to secession.72 In light of the above, it may be argued that the people of Nagorno-Karabakh would have to demonstrate that their rights to internal self-determination were being completely frustrated by the Azeri government, in order to claim that their rights to external self-determination had been triggered. Because the most difficult legal issue regarding self-determination pertains to its most extreme, external form, resulting in the people’s secession from the mother State, the following section will discuss the right to secession under international law.

C. Remedial Secession

If a people exercises its right to external self-determination, this entails a separation from the mother State through secession. Because secession seems inherently at odds with the norms of territorial integrity and uti possidetis, it is understandable that many in the international community view secession with suspicion. Marc Weller has argued that “[t]he right to opposed unilateral secession stands in obvious tension with the claim to territorial integrity and unity of existing states.”73 The principle of territorial integrity is a ius cogens norm of international law allowing no derogations.74 Coupled with the principle of uti possidetis – which itself imposes an obligation on States to respect pre-existing international frontiers – the principle of territorial integrity would “The Court is not required by the question is has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it.” Ibid., para. 56. It should be noted, however, that one of the dissenting opinions, by Judge Koroma, expressed a clear view that international law does not confer the right to separate from an existing State on any groups, outside of the decolonisation context. “To accept otherwise, to allow any ethnic, linguistic or religious group to declare independence and break away from the territory of the State of which it forms part, outside the context of decolonization, creates a very dangerous precedent”, ICJ, Kosovo Opinion (note 3), Dissenting Opinion of Judge Koroma, para. 4. 72

73

Marc Weller, Escaping the Self-Determination Trap (2008), 32.

Ius cogens is defined in Art. 53 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT)) as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. 74

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seemingly disallow any forcible disruptions of existing State territory through processes such as secession.75 Thus, many territorial entities which have exercised the right to external self-determination, through a de facto secession, have been denied the attribute of Statehood by the international community. Examples include Northern Cyprus, which used force to attain de facto separation from Cyprus, Southern Rhodesia which unilaterally declared independence from Great Britain by a white minority government, and Republika Srpska which has claimed independence from Bosnia after engaging in unlawful ethnic cleansing practices.76 Other examples of similar territorial quests exercised by a group claiming peoplehood and the right to self-determination include South Ossetia and Abkhazia, Chechnya, and Transnitria.77 “In all such instances of unlawful secession, the central government of the larger state from which these entities attempted to separate has claimed the right to forcefully reincorporate the renegade territory.”78 It may be argued that international law does not contain a positive right of secession, but that it tolerates secession, as an exercise of external self-determination, in the most extreme instances where the mother State is not representative of the seceding people and has engaged in a history of oppression toward the seceding people. This type of secession has been referred to as a just cause theory of secession – a secession accomplished for “cause” because the seceding people had been abused, discriminated against, and because its rights to autonomy and internal self-determination had not been respected by the mother State.79 Some scholars have embraced the view that secession may be tolerated in international law in limited circumstances. Antonio Cassese had argued that a non-colonial people may have the right to external self-determination, in light of the Friendly Relations Declaration, But see Peters (note 20), 114–115 (arguing that the principle of uti possidetis, while applicable in the decolonisation context, does not automatically apply to all secessions and that uti possidetis does not apply at the same time as the principle of self-determination, because uti possidetis “refers to a rule for the identification of boundaries following the proclamation of independence and is without prejudice to the existence of a right to proclaim independence”). 75

76

Sterio (note 46), 21.

Oeter (note 56), 64–65 (arguing that entities such as Northern Cyprus and Transnitria, as well as some former Yugoslav republics, have been denied Statehood because of non-recognition by the international community, because their process of formation did not respect the “normative underpinnings of the international community” as they came into existence through forceful means). 77

78

Sterio (note 46), 21.

79

See, e.g., Scharf (note 42), 381.

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[w]hen the central authorities of a sovereign state persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a [peaceful settlement within the framework of the State structure.80

In addition to the Friendly Relations Declaration, the 1993 Vienna Declaration of the World Conference on Human Rights repeats that the right of self-determination does not authorise the disruption of territory of States which conduct themselves in compliance with the principles of equal rights and self-determination.81 This Declaration, alongside the Friendly Relations Declaration, can be interpreted as authorising external self-determination, and thus secession, in instances where the mother State chooses to disrespect equal rights and self-determination. Two subsequent United Nations bodies have referred to secession as an ultimate measure of protection of a group which has been consistently abused.82 In addition, the African Commission on Human Rights, similarly to the Canadian Supreme Court in the Quebec Case, has suggested that a group whose rights to participate meaningfully in the political life and society of its mother State have been consistently undermined and abused may have the right to exercise external self-determination leading to secession. The African Commission held, in the context of the Katanga people seeking external selfdiscrimination from Zaire, that [i]n the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government … the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire

80

Cassese (note 2), 119.

Vienna Declaration and Programme of Action, World Conference on Human Rights, UN Doc. A/CONF.157/23 (1993), para. 2 (Vienna Declaration). It should be noted that the Vienna Declaration, unlike the Friendly Relations Declaration, did not limit the list of prohibited distinctions to those based on “race, creed or color”, thereby implying that distinctions based on other grounds, such as religion, ethnicity, language, etc., may also trigger the right to external self-determination. 81

82 Commission on Human Rights: Sub-commission on Prevention and Protection of Minorities, Protection of Minorities: Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, UN Doc. E/CN.4/Sub.2/1993/34 (1993), para. 84; Report of the Committee on the Elimination of Racial Discrimination, GAOR, 51st Sess., Suppl. No. 18, 125– 126, para. 11, UN Doc. A/51/18 (1996).

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and that “the Quest for independence of Katanga therefore has no merit under the African Charter on Human and Peoples’ Rights.”83 It may be inferred in this case, like in the Quebec case, that peoples whose rights to autonomy and internal self-determination were not respected by the mother State would have the right to external selfdetermination, through the exercise of secession. In addition to Cassese, other scholars have embraced the argument that remedial secession may be accepted in instances where the fundamental right of survival of a defined group or people is placed in danger by the mother State. Thomas Burri has argued that a right of remedial secession may exist in international law in the most extreme instances of massive human rights violations committed against a people. He has concluded that in case of massive and widespread violations of human rights, the mother State should face the “ultimate punishment: the loss of sovereignty over a part of territory.”84 Stefan Oeter has somewhat similarly argued that: If a state completely blocks any ‘internal self-determination’, erodes existing arrangements of autonomy, and takes recourse to brutal forms of violent oppression, ending in gross and consistent patterns of crimes against humanity, forms of ‘ethnic cleansing’, and perhaps even genocide, a ‘right to secession’ as an emergency tool seems to be arguable.85

However, scholars like Burri and Oeter have been careful to point out that secessions may have a legitimate cause only in the most extreme instances, and that the legitimacy of any proposed or accomplished secession should be sorted out through peaceful negotiations.86 The above-discussed norms of territorial integrity and uti possidetis, as well as the theories of self-determination and secession highlight the tension existing in modernday international law, between preserving State sovereignty and territorial integrity on the one hand, while respecting human rights and protecting minority groups on the other. The recent Kosovo case underscores this tension and also serves as an excellent comparison to the Nagorno-Karabakh case. Section IV. below will discuss Katangese Peoples’ Congress v. Zaire, African Commission On Human and Peoples’ Rights, Comm. No. 75/92, (1995), para. 6. 83

Thomas Burri, Secession in the CIS: Causes, Consequences, and Emerging Principles, in: Walter et al. (note 1), 145. 84

85

Oeter (note 56), 57.

86

Burri (note 84), 154; Oeter (note 56), 64.

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Kosovo, whereas Section V. will focus on applying the relevant principle of international law, as well as the Kosovo “precedent” to the situation in Nagorno-Karabakh.

IV. Anomaly: The Kosovo Case Stefan Oeter has argued that some secession cases, including Kosovo, are “hard cases that make bad law.”87 Oeter argues that even if one supports the doctrine of remedial secession as a general matter, in cases of extreme emergency, Kosovo and a few other cases “do not provide solid grounds for arguing for the necessity of secession, as instances of an ‘external right of self-determination’.” According to Oeter, Kosovar Albanians did not have a good argument for secession, because their case was too unique and exacerbated by other circumstances, such as the international community’s ongoing involvement.88 Kosovo may be “bad” precedent for secession legally speaking, but Kosovo is an example of a successful secession and this case has provided secessionist precedent to other separatist movements around the world.89 Thus, the Kosovo case will be examined in more detail below. Kosovo is a small land-locked area. It had been the site of a medieval Serbian kingdom until the Battle of Kosovo in 1389, when Serbia lost independence and was invaded by the Ottoman Empire.90 After the break-up of the Ottoman Empire in 1912, Kosovo was annexed by the Kingdom of Serbia.91 After the Socialist Federal Republic of Yugoslavia (SFRY) was established in 1945, Kosovo became an autonomous region and later a province of Serbia.92 Under the 1974 Constitution of the SFRY, Kosovo acquired its own constitution, government, legislature, judiciary, police and bank.93 87

Oeter (note 56), 59.

88

Ibid., 60.

For example, Russia recognised the Georgian breakaway regions of South Ossetia and Abkahzia as independent, citing the Kosovo secession precedent. Statement by the Ministry of Foreign Affairs of the Russian Federation, 26 August 2008; Statement by the President of Russia Dimitry Medvedev, UN Doc. S/PV.5969 8 (2008). 89

90

James Summers, Kosovo, in: Walter et al.(note 1), 236.

91

Ibid.

92

Ibid.

93

Ibid., 237.

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After the death of Yugoslav leader Josip Broz Tito in 1980, Kosovo continued to participate in the Yugoslav federal structure, but the system proved to be weak and ineffective.94 Under the leadership of Slobodan Milosevic, starting in the late 1980s, Serbia sought to dominate the other Yugoslav republics and provinces, and starting in the early 1990s, Yugoslavia began to dissolve.95 Following declarations of independence by Slovenia, Bosnia and Macedonia, Kosovars also declared independence on 21 September 1991.96 Because recognition policies by the European authorities seemed dictated by the application of the uti possidetis principle to the existing Yugoslav republics, but not autonomous provinces, Kosovo was denied recognition.97 During the 1990s, conflict erupted in Kosovo as ethnic Albanians increasingly demanded independence from Serbia and as Milosevic continued to engage in brutal repression.98 In the spring of 1999, NATO countries engaged in a three-month long series of air strikes against the Milosevic regime, in order to halt the latter’s repressive tactics in Kosovo.99 The air campaign ended with the signing of the so-called Rambouillet Accords and a Peace Agreement in June 1999.100 On 10 June 1999, the Security Council passed resolution 1244 which laid out the framework for the international administration of Kosovo, which involved an international security presence and substantial United Nations and NATO participation.101 The international administration of Kosovo was established in order to enable Kosovars to self-govern; upon the Kosovar’s fulfilment of self-governing standards, the international administration of Kosovo was supposed to be transferred to Kosovar provisional authorities.102 The final 94

Ibid.

95

Ibid., 237–238.

Ibid., 237 (noting that Kosovar Albanians’ declaration of independence in 1991 was also supported by a referendum, where 99.87% of voters endorsed independence; the referendum turn-out was significant at 87.01% of the total population of Kosovo). 96

See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. 2, 31 I.L.M. 1498 (1992), para. 1. 97

98

Sterio (note 46), 118–119.

99

Ibid., 119.

100

Ibid.

See, e.g., Enver Hasani, Self-Determination Under the Terms of the 2002 Union Agreement Between Serbia and Montenegro: Tracing the Origins of Kosovo’s Self-Determination, Chicago-Kent Law Review 80 (2005), 305–323. 101

102

Hasani (note 101), 323–325.

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status of Kosovo, however, remained unclear and the United Nations remained involved in negotiations with Serbia and with the Kosovar authorities about this issue. On 17 February 2008, the Kosovar Assembly unilaterally declared independence, and Kosovo was almost immediately recognised as a sovereign State by many western nations, including the United States, France, the United Kingdom, Germany, etc.103 Serbia continued to protest Kosovo’s independence and it requested, through a General Assembly resolution, the ICJ to issue an opinion about whether the Kosovar Declaration of Independence violated international law.104 The Court held in a 10-4 vote that it did not, but the court infamously refused to issue any type of legal pronouncement on the vexing issues of Kosovar self-determination, or the right of secession under international law.105 The Court held that the right to territorial integrity is confined to inter-State relations and as such, did not apply to the authors of the Kosovar declaration of independence, who were not a State entity.106 The Court however did not specify whether a general right of secession existed, and instead seemed to suggest that in the Kosovo case, secession would be tolerated because it was accomplished by non-State actors and thus was not contrary to the principle of territorial integrity.107 The court also noted that States generally disagreed on the existence of the right to remedial secession and thus refused to issue a general pronouncement on this issue.108 The Kosovo case is difficult because it represents a de facto secession which has resulted in the recognition of Kosovo as an independent State by about half of the world’s countries, in which there is little consensus among recognising States as to why Kosovo should be recognised.109 Is it because Kosovar Albanians have a positive right to external self-determination leading to remedial secession, or is it because Kosovo is a sui generis 103

Sterio (note 46), 119.

104

Summers (note 90), 244.

105

Ibid.

106

Ibid., 246.

Ibid., 250; see also ICJ, Kosovo Opinion (note 3), para. 80 (“the scope of the principle of territorial integrity is confined to the sphere of relations between States”). 107

ICJ, Kosovo Opinion (note 3), para. 82 (noting that a general right to independence based no selfdetermination was “a subject on which radically different views were expressed by those taking part in the proceedings”). 108

109 As of today, 112 United Nations member States have recognised Kosovo. See, Who Recognized Kosova as an Independent State?, available at: http://www.kosovothanksyou.com/ (accessed on 24 November 2016).

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case which establishes no other secessionist precedent – a position advocated by the United States’ Department of State.110 Scholars have argued that Kosovo is also a difficult case because even if one accepts the existence of a general right of secession, Kosovar Albanians did not establish the secessionist threshold. First, at the time that independence was declared, Kosovo was no longer oppressed and had been internationally administered for over eight years.111 Second, Serbia had changed its leadership and its political standards and the oppression justifying “just cause” secession was no longer present.112 Third, abuses suffered by minority groups in Kosovo may undermine the legitimacy of the Albanian self-determination claim and could legitimise separatist claims by those non-Albanian minorities.113 These arguments would militate in favour of recognising that Kosovar Albanians had a right to internal self-determination, but that their right to external self-determination had not been triggered and that they were thus not entitled to remedial secession in 2008. What does the Kosovo precedent signify for Nagorno-Karabakh? Does the Kosovo precedent establish that the right to remedial secession exists, and if so, could this right also apply to the people of Nagorno-Karabakh? Or, is Kosovo an anomaly in international law and a “hard case” that should not result in the creation of “bad law?” The section below will discuss the case of Nagorno-Karabakh, in light of abovediscussed international law principles and in light of the Kosovo case. V. Analysis: Nagorno-Karabakh In light of the foregoing analysis of the right to self-determination under international law, does Nagorno-Karabakh have the right to secede from Azerbaijan? Be110 The United States Secretary of States, Condoleeza Rice, famously argued in 2008 that the Kosovo case is sui generis and does not create any type of precedent for any other situations around the world (“The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as precedent for any other situation in the world today”). Secretary Condoleeza Rice, United States Recognizes Kosovo as Independent State, 18 February 2008, Washington DC, 18 February 2008, available at: http://kosova.org/post/United-States-Recognizes-Kosovo-as-Independent-State.aspx (accessed on 24 November 2016). 111

See, e.g., Summers (note 90), 253; Sterio (note 46), 122; Oeter (note 56), 60.

112

Ibid.

113

Summers (note 90), 253.

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cause international law currently does not establish a positive right of secession and merely tolerates select instances of successful secession, like the Kosovo case, the people of Nagorno-Karabakh do not have the right to secede from Azerbaijan, absent a peaceful negotiation. If international law were to evolve and to develop a positive right of secession, as some scholars have advocated, then the people of Nagorno-Karabakh would be able to rely on this right in order to separate from Azerbaijan and establish an independent State. First, in light of the above, it may be concluded that international law tolerates secession, but does not bestow a positive right of secession on any particular groups. This view is supported by a strict reading of the Friendly Relations Declaration, which confirms the principle of territorial integrity and refers to self-determination in the decolonisation context, as well as by the work of most scholars in international law, who refuse to acknowledge a positive right of secession and instead propose selfdetermination within the larger context of the mother State’s territorial integrity as the appropriate solution. Prominent international law scholars such as James Crawford, Lea Brilmayer, and Christopher Borgen have concluded that international law does not contain a positive right of secession; Theodor Christakis has acknowledged the same, and even scholars arguing in favour of secession, such as Thomas Franck, have written about it in terms of a “privilege” rather than a “right,” arising only in very narrow circumstances.114 This view may also be supported by the ICJ’s decision in the Kosovo Case, as the world court refused to pronounce itself on any positive right of seSee, e.g., James Crawford, State Practice and International Law in Relation to Unilateral Secession, in: Anne Bayefsky (ed.), Self-Determination in International Law: Quebec and lessons learned (2000), 60; Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, Yale Journal of International Law 16 (1991), 177, 183 (“international law does not provide a right of secession”); Christopher J. Borgen, Can Crimea Secede by Referendum?, Opinio Juris, 6 March 2014, available at: http://opiniojuris.org/2014/03/06/can-crimea-secede-referendum/ (accessed on 24 November 2016) (“there is no right to secede under international law”); see also Theodor Christakis, Secession, Oxford Bibliographies, available at: http://www.oxfordbibliographies.com/view/document/obo-97801997 96953/obo-9780199796953-0044.xml (accessed on 24 November 2016) (arguing that under international law there is no right to secession, but that international law may simply tolerate secession in some instances); Thomas Franck, in: Suzanne Lalando, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (2002), 209 (“[t]here is a privilege of secession recognized in international law …”); Christopher J. Borgen, Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition, ASIL Insights, 29 February 2008, available at: https://www.asil.org/insights/volume/12/ issue/2/kosovos-declaration-independence-self-determination-secession-and#_edn1 (accessed on 6 December 2016) (“[a]lthough issues of secession rarely receive formal adjudication, state practice, court opinions, and other authoritative writings, point the way to categorizing what are the “extreme cases” and “carefully defined circumstances” under which the privilege of secession exists”). 114

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cession. International law may tolerate secession in specific instances, like in the Kosovo case, because of unique circumstances or simply because secession is a fait accompli with no possibility of going back to the mother State’s previously existing territorial borders. Moreover, the ICJ seemed to suggest in the Kosovo case that international law does not prohibit, allow, or regulate secession, especially where the authors of the declaration of independence, leading to secession, are non-State actors.115 Scholars have questioned whether the ICJ applied the traditional Lotus principle in the Kosovo Case, by proclaiming that everything which is not expressly prohibited in international law may be allowed.116 Secession may be allowed in some instances because it is not expressly prohibited by international law, but no positive entitlement to secession exists under international law. In light of this conclusion – that international law does not establish a positive right of secession – it may be concluded that Nagorno-Karabakh does not have the right to secede from Azerbaijan. International law contains firmly established norms of State sovereignty and territorial integrity. These norms protect Azerbaijan’s territory from encroachment and provide that this State’s territory may only be altered through peaceful negotiations and agreement. In addition, the principle of uti possidetis, discussed above, further protects Azerbaijan’s territorial borders and allows for their disruption only with Azerbaijan’s consent, through negotiations. Nagorno-Karabakh was, at the time of Azerbaijan’s independence, a unit within the new Azeri State. “After the secession of the Azerbaijan SSR from the Soviet Union, these borders were converted, pursuant to the uti possidetis principle, into the international borders of the Republic of Azerbaijan, including Nagorno-Karabakh.”117 It should be noted that Armenia has consistently questioned the application of the uti possidetis principle to the Nagorno-Karabakh situation, but that in order for this argument to succeed, Armenia would have to demonstrate that Nagorno-Karabakh belonged to Armenia before the foundation of the Soviet Union and that this fact should matter today.118 This “[S]ince the international legal principle of territorial integrity is not applicable to non-state actors, and since no other international legal norms are applicable to the case, international law is silent.” Christian Walter, The Kosovo Advisory Opinion: What It Says and What It Does Not Say, in: Walter et al. (note 1), 25. 115

116

Ibid., 23–24.

117

Kruger (note 4), 226.

118

Kruger (note 4), 226.

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argument is tenuous at best, and is inconsistent with the way in which the uti possidetis principle has been applied to the dissolution of the Soviet Union and of the former Yugoslavia, converting past republican intra-State delimitations to international boundaries. The application of uti possidetis here favours the elevation of Azerbaijan’s republican borders, which included Nagorno-Karabakh, to the status of internationallyprotected frontiers. Moreover, because international law merely tolerates secession, this argument militates in favour of recognising those secessions which have already been accomplished, and which have resulted in the creation of independent entities, such as the Kosovar secession from Serbia. Armenia has argued that Nagorno-Karabakh has become a stabilised, State-like entity and that the international community should simply accept the fact that a new State has been born.119 In the case of Nagorno-Karabakh, it appears that this entity is far from independent – it has been occupied by Armenian military forces, and its own government is heavily dependent on Armenian support.120 Thus, unlike Kosovo which had de facto seceded from Serbia, Nagorno-Karabakh has not seceded from Azerbaijan, and its case for independence should not be tolerated by international law. Even if one accepts the claim that the citizens of Nagorno-Karabakh are a defined people, one would conclude that they have the right to self-determination but that this right can be achieved internally, through autonomy within the larger Azeri State. Armenia’s interference in Nagorno-Karabakh has disrupted the possibility of such internal self-determination, but it is possible that such internal self-determination could have been achieved in the past and could still be achieved in the future, through a negotiation process with Azerbaijan. Thus, because no international law right to secession exists, the people of Nagorno-Karabakh have the right to self-determination only, and this right would have to be exercised within the territory of the larger Azeri State. In other words, the people of Nagorno-Karabakh have the right to internal selfdetermination, which can be exercised through political and regional autonomy within the Azeri State. Second, it should be noted that some have argued that international law establishes a positive right of remedial secession for groups and peoples which have been the 119

Ibid., 227.

120

Ibid., 228.

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subject of heinous human rights violations. This view has not reached the status of customary law and it would be difficult to argue that the right to secession is a positive norm of international law today. However, because this view is relevant for secessionist conflicts and because it may some day morph into a norm of international law, it is important to discuss it here. Scholars, such as Cassese and Burri, mentioned above, have argued that peoples under circumstances of extreme oppression may have the right to secede from their mother States. Cassese has proposed a threshold of secession as “[e]xtreme and unremitting persecution and the lack of any reasonable prospect for peaceful challenge.”121 Burri has proposed a similar view, focusing on the loss of territorial status and sovereignty for the mother State, if it abuses a group’s rights in a widespread and particularly heinous manner.122 Two States submitting statements to the ICJ in the Kosovo case have also laid out conditions for a possible exercise of remedial secession. Finland and Germany have argued that a group may claim the right to remedial secession if two elements are present: first, a denial of human rights and participation in government (thus, a denial of the right to internal self-determination), and second, the conclusion that secession is the only option for resolving the crisis.123 If one adopts this view, the relevant inquiry becomes whether the threshold of the right to secession has been reached in the Nagorno-Karabakh case. The legal case for Nagorno-Karabakh’s secession and ultimate independence becomes stronger under this paradigm. First, it is undeniable that human rights violations have occurred in Nagorno-Karabakh, and it is doubtful that its citizens could accomplish meaningful internal self-determination within Azerbaijan, in light of the latter’s authoritarian regime and unwillingness to respect democracy for all of its citizens. Second, secession may be the only option for resolving this crisis. Most Azeris have already moved out of Nagorno-Karabakh and the region has become populated by a majority of ethnic Armenians. Here, a comparison to the Kovoso situation is particularly relevant. In Kosovo, most Serbs had left at the time of the Kosovar declaration of independence, and the relationship with Serbia had become so fragile that many in the international community seemed unable to 121

Cassese (note 2), 120.

122

Burri (note 84), 145.

Statement of Finland, 16 April 2009, para. 8012, available at: http://www.icj-cij.org/docket/files/ 141/15630 (accessed on 6 December 2016); Written Statement of Germany, 15 April 2009, paras. 33–34, available at: http://www.icj-cij.org/docket/files/141/15624.pdf (accessed on 6 December 2016). 123

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conceive of Kosovo as remaining within Serbia. A similar situation exists in NagornoKarabakh, and it is extremely difficult to envision meaningful negotiations between the government of Azerbaijan and the citizens of Nagorno-Karabakh, resulting in meaningful autonomy for the latter. If one accepts the notion that the right to remedial secession ought to exist in international law, then this right may apply in situations like Kosovo and Nagorno-Karabakh and may enable the people of these regions to rely on this right in order to justify their legal claim to secession from their mother States. As stated above, however, international law today does not embrace a positive right of secession, and the argument described directly above – that oppressed people may have a right to remedial secession – may be at best a developing principle of international law. Third, does the Kosovo case shed light on the situation in Nagorno-Karabakh? As the previous section discussed, Kosovar Albanians seceded from Serbia in 2008, through a unilateral declaration of independence which their assembly unanimously voted. Many States in the international community accepted the secession as a fait accompli and recognised Kosovo as a new independent nation. Other States have, to this day, refused to recognise Kosovo. The ICJ, upon being requested to issue an advisory opinion on Kosovo, satisfied itself by issuing a narrow legal ruling on the issue of the legality of the declaration of independence itself, not the Kosovar Albanians’ right to self-determination and secession. It may be argued that the ICJ determined in the Kosovo case that secession is permissible under international law, because it is not expressly prohibited. While some secessionist forces, such as the one in Nagorno-Karabakh, may interpret the Kosovo precedent more broadly, as bestowing a positive right of secession on peoples, it is legally accurate to conclude that the ICJ Kosovo Advisory Opinion does not establish a positive right of secession. The Kosovo Advisory Opinion reflects the international community’s concern about secession, and its willingness to tolerate de facto secessions, and perhaps those that can be accomplished through peaceful means. The Kosovo case can also be viewed as sui generis, because of the unique circumstances existing in this region, such as extensive international community and United Nations involvement, and a history of oppression of Kosovar Albanians, as described above in Section IV. Or, as Oeter has argued, Kosovo may be viewed as a hard case which should not create new bad law, establishing a right of secession.124 The Kosovo case, although 124

See Oeter (note 56), 59.

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lacking clarity on secession issues, does not establish a positive right of secession and as such cannot serve as precedent for the secessionist movement in Nagorno-Karabakh.

VI. Conclusion International law on the right to self-determination and on secession is unclear. While everyone in the international community agrees that colonial peoples are entitled to self-determination and the formation of their own independent States, it is uncertain whether non-colonial peoples possess the same right. It may be argued that most scholars would agree that non-colonial peoples have the right to internal self-determination, but disagreement persists about whether non-colonial peoples have the right to external self-determination, leading toward a separation, through remedial secession, from their mother State. International law on remedial secession is unclear – permissive, as suggested by the ICJ in the Kosovo Advisory Opinion, prohibitive, according to some scholars, or affirmative, establishing a positive right to secession, according to a minority view. In light of the above, it may be concluded that the people of Nagorno-Karabakh do not have the right to secede from Azerbaijan because international law currently does not contain a positive norm on secession. Assuming that the citizens of NagornoKarabakh are a people, they would have the right to internal self-determination within Azerbaijan. They may have the right to external self-determination, if one accepts the view that peoples whose rights to internal self-determination have not been respected by the mother State accrue the right to external self-determination. Under this view, the people of Nagorno-Karabakh could exercise the right to external self-determination vis-à-vis Azerbaijan; if Nagorno-Karabakh were able, through a peaceful process, to negotiate secession from Azerbaijan, via the vehicle of external self-determination; international would tolerate this result, like in the Kosovo case. However, international law does not bestow on the people of Nagorno-Karabakh the positive right to secede from Azerbaijan. Almost all scholars adopting the view that international law either tolerates secession or establishes a remedial right to secession caution that secession is to be arrived at through a negotiation with the mother State. Thus, the citizens of Nagorno-Karabakh would have to negotiate with Azerbaijan in order to first claim a right to external self-determination, and to then attempt to negotiate a proposed

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secession therefrom. The citizens of Nagorno-Karabakh may not claim, however, that international law contains a positive right of secession; if they were to forcefully secede from Azerbaijan, it is extremely likely that the international community would condemn that type of secession as illegal under international law. In the absence of a meaningful negotiation between all the parties, including Azerbaijan, Armenia, and Nagorno-Karabakh, on vehicles for self-determination and perhaps secession, the conflict in Nagorno-Karabakh may persist in the near future.

Moldova: Law and Complex Crises in a Systemic Borderland CHRISTOPHER J. BORGEN

ABSTRACT: Moldova is a young State facing the intertwined domestic challenges of secessionism, political instability, and endemic corruption. Moreover, it is trying to navigate relations with a Russia that opposes Moldova’s increasing ties with the EU. This essay is about the interrelationship of these domestic and international challenges and the role of law in addressing them. The first section will review aspects of Moldovan history that illuminate its position as a borderland between the Russian and EU normative systems and also contextualises the secessionist conflict over Transnistria. Section II. assesses arguments concerning the right of self-determination and their application to Transnistria. Section III. considers the challenges in stabilising the domestic policies and politics of a young State. Section IV. turns to the role of treaty regimes as a means of helping State stabilisation and the dilemmas of foreign relations for a State that is a systemic borderland. In particular, how does being in an area of normative competition between Russia and the EU affect the ability to enter into treaty regimes with one or the other? Finally, the conclusion addresses how domestic political turbulence affects attempts at settling the Transnistrian conflict, and vice versa, and what role law may have regarding each. Moldova’s challenges are inter-related; so, too, are the tools used to address them: international law, domestic law, and political negotiations. KEYWORDS: European Union, Moldova, Russia, Secession, Self-Determination, Statehood, Transnistria

Introduction Moldova is a small country with big problems. It has been entangled in a separatist conflict over Transnistria, a strip of land between the Nistru River and the border of Ukraine, for over twenty-five years.1 It is buffeted by endemic corruption and political in-fighting that episodically seizes the political system and destabilises the economy of what is already one of the poorest countries in Europe. Russia – which both Professor of Law and Co-Director, Center for International and Comparative Law, St. John’s University School of Law, New York. 1

Also called Trans-Dniester and, by Russian speakers, Pridnestrov’ia.

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supports the Transnistrian separatists but is also a mediator in the conflict – is increasingly angered by Moldova turning to the European Union (EU) for assistance in addressing these complex crises and has applied sanctions on Moldova. This article looks at the interrelationship of these challenges and the role of international law in addressing them. Moldova is an historic crossroads of culture bordered by EU Member State Romania on one side and Ukraine on the other. It is a former Soviet State that is in the Russian ‘Near Abroad’ but also part of the EU’s ‘Neighbourhood’. Moldova has a diverse population with ethnic Romanians, Russians, Ukrainians, and Turkic peoples (among others).2 While some in Transnistria seek to leave Moldova altogether, citizens in the main part of Moldova consider whether their country should be oriented towards Brussels or Moscow. Moldova is not just a geographic borderland; it is also a “systemic borderland” between two regions with significantly different normative systems.3 The rules and norms that define a society are of central importance to this story. Unlike the conflicts over Nagorno-Karabakh or South Ossetia, the dispute over Transnistria is not primarily an ethnic conflict. Both the ‘left bank’ of the Nistru (Transnistria) and the ‘right bank’ (the rest of Moldova) are ethnically mixed.4 While Romanian-speaking Moldovans comprise about 76% of the population of the right bank and about twice the ratio of Moldovans in Transnistria speak Russian than in the rest of Moldova,5 “there is little animosity between the populations on the two sides of [the] river Nistru” and there is daily travel by average citizens across the supposed border.6 But there are fundamental questions of identity, of what it The Soviets, however, labelled this population as ethnically ‘Moldovan,’ and asserted that they were not ethnically Romanian. The Union of Soviet Socialist Republics (USSR) also called the Romanian language ‘Moldovan’, and underscored this by outlawing the use of the Latin alphabet and requiring the use of Cyrillic letters. Although the reason for this nomenclature was political, rather than ethno-linguistic, it was carried over by the current Moldovan government after independence. 2

See Christopher J. Borgen, Whose Public, Whose Order?: Imperium, Region, and Normative Friction, Yale Journal of International Law (YJIL) 32 (2007), 331 (defining related “systemic borderlands” and “normative friction”). 3

4

See Nicu Popescu, EU Foreign Policy and Post-Soviet Conflicts: Stealth Intervention (2011), 39.

John O’Loughlin/Gerard Toal/Rebecca Chamberlain-Creanga, Divided space, divided attitudes? Comparing the Republics of Moldova and Pridnestrovie (Transnistria) using simultaneous surveys, Eurasian Geography and Economics 54 (2013), 227, 232–234. 5

6

Popescu (note 4) 39; see generally, O’Loughlin/Toal/Chamberlain-Creanga (note 5).

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means to be ‘Moldovan,’ and whether Moldova will be able to forge a multi-ethnic conception of itself. Although this is not a conflict along sharp ethnic divisions, there are multiple tensions and negotiations within negotiations. On one level, there is the attempt to resolve the conflict between the government of Moldova and the leadership of the breakaway Transnistria. But there is also a tension between the EU and Russia concerning whether the future of Moldova will be oriented to the EU or to Moscow. Moreover, there is the tension within Moldova between those who would prefer to be oriented towards the EU versus those seeking the rebuilding of close integration with Russia. High politics in a systemic borderland that is both the EU’s ‘Neighbourhood’ and Russia’s ‘Near Abroad’ is about the adoption of norms. Following this introduction, this essay has five sections. The first section will review aspects of Moldovan history that illuminate its position as a systemic borderland and contextualises the conflict over Transnistria. Section II. will turn to arguments concerning the right of self-determination and its application to the Transnistria conflict.7 Section III. will consider the role of international law and institutions in stabilising the domestic policies and politics of a new State. Section IV. will turn to the challenge of foreign relations for a State that is a systemic borderland. In particular, how does the fact of being in an area of normative competition affect the ability to enter into treaty regimes with one group of States or another? Finally, the conclusion will address how domestic political turbulence affects attempts at settling the Transnistrian conflict, and vice versa, and what role law may have regarding each.

This article draws upon the report of the New York City Bar’s Mission to Moldova of which I was the principle author, see Special Committee on European Affairs of the New York City Bar, Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova, Record of the Association of the Bar of the City of New York 61 (2006), 196 as well as Christopher J. Borgen, Public International Law and the Conflict Over Transnistria, in: Mensur Akgün (ed.), Managing Intractable Conflicts: Lessons from Moldova and Cyprus (2013), a chapter from a study comparing the conflicts in Moldova and Cyprus that takes into account events subsequent to the New York City Bar Moldova Report, including the reaction of United Nations (UN) Member States to Kosovo’s declaration of independence, the subsequent International Court of Justice (ICJ) case, and the 2008 Georgia War. See also, Christopher J. Borgen, Imagining Sovereignty, Managing Secession: The Legal Geography of Eurasia’s “Frozen Conflicts,” Oregon Review of International Law 9 (2007), 477 and id., Great Powers, Small States, and the Rhetoric of Self-Determination: The Cases of Kosovo and South Ossetia, Chicago Journal of International Law 10 (2009), 1. 7

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Settling the dispute over Transnistria may help in framing approaches for similar conflicts. Leaving this conflict unresolved supports those who say that separatist disputes cannot be resolved short of military confrontation or coercion. Even small States can have high stakes.

I. A History of Interconnected Challenges and Complex Crises Transnistria is a 30 kilometre wide strip of land between the Nistru River and the border of Ukraine. It has a population of approximately 513,000, while the rest of Moldova has about 3.56 million inhabitants.8 In the spring of 1992 a group of Russianbacked separatists fought the Moldovan government for this territory, which contains Moldova’s key industrial infrastructure. Since then, Transnsitria has been controlled by a separatist regime that calls itself the Transnistrian Moldovan Republic (TMR).9 Although the actual military conflict over Transnistria was only about three months long, the events leading up to it were centuries in the making, and its aftermath is now in its third decade. This first section will note some of the events particularly relevant for the discussion in this article.

A. Moldovan History

1. Prior to the Second World War Moldova may be a young State but it is a land with a long history.10 The plains and rolling hills northwest of the Black Sea have been a transit point and a borderland between empires for two thousand years. The territory that is the Moldovan State Regarding Transnsitria’s size, Charles King, The Moldovans: Romania, Russia, and the Politics of Culture (2000), 178. Population estimates by O’Loughlin/Toal/Chamberlain-Creanga (note 5). The Central Intelligence Agency (CIA) Factbook lists total population of Moldova as 3.51 million, see CIA, World Factbook, Moldova, available at: https://www.cia.gov/library/publications/the-world-factbook/ geos/md.html (accessed on 31 May 2017). 8

This article will use the ‘Transnistria’ nomenclature although when quoting from another author’s work we will preserve that author’s nomenclature within the quotation. 9

The following historical narrative is in part drawn from the New York City Bar Moldova Report, Special Committee on European Affairs of the New York City Bar, (note 7), 210–223. 10

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today includes the historical regions of Bessarabia – the lands west of the Nistru (or Dniester) River, at times called the ‘right bank’ – and Transnistria, on the east or ‘left bank’ of the Nistru. In the Middle Ages, Bessarabia was part of a group of ethnically Romanian principalities under Ottoman control while Transnistria was part of the Slavic kingdoms of Kievan Rus’ and Galicia-Volhynia,11 until it was later conquered by the Ottoman Empire, as well. Russia gained control of Transnistria in 1792 and founded Tiraspol, which the TMR would later claim as its capital.12 However, Russia “did not consider this land to be connected to nearby Bessarabia,” which remained within the Ottoman Empire.13 The two sides of the Nistru River became “an historic zone of competition between the Russian and Ottoman Empires.”14 About twenty years after taking control of Transnistria, Russia acquired Bessarabia from the Ottoman Empire in 1812.15 The lands west of the Prut River remained under Turkish control. Over the next halfcentury, while the Romanian principalities under Ottoman control consolidated into what would become Romania in 1866,16 Bessarabia remained under Russian control and was not part of this process. Rather, as of 1871 the Russian Empire pursued a policy of ‘Russification’ in Bessarabia. The arrival of other ethnic groups from other parts of the Empire as a source of labour made the region multi-ethnic, rather than solely Romanian.17 Bessarabia remained part of the Russian Empire until 1917, at which point during the Rus11

King (note 8), 179.

12

O’Loughlin/Toal/Chamberlain-Creanga (note 5), 229.

See Serhy Yekelchyk, Out of Russia’s Long Shadow: The Making of Modern Ukraine, Belarus, and Moldova, in: Oliver Schmidtke and Serhy Yekelchyk (eds.), Europe’s Last Frontier?: Belarus, Moldova, and Ukraine between Russia and the European Union (2008), 8, 14. 13

14

O’Loughlin/Toal/Chamberlain-Creanga (note 5), 229.

Steven D. Roper, Regionalism in Moldova: The Case of Transnsitria and Gagauzia, Regional and Federal Studies 11 (2001), 101, 102. 15

16

See Yekelchyk (note 13), 13.

See Steven D. Roper, Post-Soviet Moldova’s National Identity and Foreign Policy, in: Oliver Schmidtke/Serhy Yekelchyk (eds.), Europe’s Last Frontier?: Belarus, Moldova, and Ukraine between Russia and the European Union (2008), 79–80. After the start of the Russification programs, the comparative size of the Moldovan population had decreased by almost 40%, although Romanian-speakers were still the largest single group. See also, Roper (note 15), 102. 17

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sian Revolution it declared that it was an independent State, the Moldavian Democratic Republic (MDR). Neither Tiraspol nor the lands east of the Nistru were included in the MDR,18 which subsequently merged with Romania.19 In the 1920s, Stalin re-established control over lands lost during the Russian revolution. Bessarabia, however, remained part of Romania. In 1924, Stalin established the Moldavian Autonomous Soviet Socialist Republic (or MASSR) as an autonomous province within the Ukrainian Soviet Socialist Republic, which included Transnistria for propaganda purposes in support of Soviet claims on the “Moldavian” territory of Bessarabia.20 In 1939, the USSR and Germany signed the Molotov-Ribbentrop Pact, which, among other things, provided for the USSR’s annexation of Bessarabia.

2. World War II and the Soviet Period Stalin formed the Moldavian Soviet Socialist Republic (MSSR) by combining Bessarabia with the MASSR. The fifteenth republic in the Soviet Union, the MSSR “inherited a large Russian-speaking community from the MASSR, and immigration particularly of industrial workers furthered Russification of Moldova’s urban areas.”21 Soviet policy attempted to construct a unique identity for the MSSR that included “close cultural ties to Russia” in order to undercut any nostalgia for Romanian identity.22 As part of the USSR, the MSSR used Russian as its primary language and adopted the Cyrillic script for written Romanian and called the language Moldavian.23 By 1989, only 10% of the kindergartens in Chisinau were taught primarily in Romanian.24

18

O’Loughlin/Toal/Chamberlain-Creanga (note 5), 229.

19

Ibid.

Pal Kolstø/Andrei Edemsky/Natalya Kalashnkova, The Dniester Conflict: Between Irredentism and Separatism, Eurasian Studies 45 (1993), 978. See also, Roper (note 17), 81; see also, William H. Hill, Russia, the Near Abroad, and the West: Lessons from the Moldova-Transdniestria Conflict (2012), 48. 20

21

Roper (note 17), 81.

22

Ibid., 82.

European Court of Human Rights (ECtHR), Case of Ilascu and others v. Moldova and Russia (Case of Ilascu), Judgment of 8 July 2004, RJD 2001-VIII, 1, para. 28. 23

24

Roper (note 15), 104.

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The issue of national identity returned once again in the waning days of the Soviet Union. As part of an upwelling of nationalist sentiment, in August 1989 the Moldovan Supreme Soviet enacted a law making Romanian with the Latin script the official language of the MSSR.25 Russian-speakers, and especially the leadership in Transnistria, were taken aback “because it was the clearest sign of the shifting balance of political power away from Russian-speakers to Romanian-speakers.”26 Ethnic Russians, Ukrainians, and Bulgarians organised pro-Russian culture groups and used Tiraspol as a centre of operation.27 On 2 September 1990, Transnistrian leaders first tried to declare its separation from the MSSR and sought the status of a Union republic (the same status as the MSSR) within the Soviet Union. However, no other entity in the USSR, including the central leadership in Moscow, accepted this declaration.28 On 27 August 1991, the Moldovan Parliament, in the aftermath of the attempted putsch against Gorbachev, declared that Moldova was an independent republic. Its capital would be the city of Chisinau. By contrast, Igor Smirnov, the leader of the Transnistrian separatists, praised the putschists as “saviors of the Soviet state,”29 and argued that the independence of the TMR was necessary to protect the Russian minority in Transnistria from the possible reunification of Moldova with Romania. On 6 September 1991, the Supreme Soviet of the TMR “issued an order placing all establishments, enterprises, organisations, militia units, public prosecutors’ offices, judicial bodies, KGB units and other services in Transnistria, with the exception of military units belonging to the Soviet armed forces, under the jurisdiction of the ‘Republic of Transdniestria.’”30 The TMR announced that Igor Smirnov had been elected its first President on 1 December 1991.31 When the USSR dissolved in late December 1991, the new States that emerged were demarcated by the USSR’s internal boundaries. 25

Ibid.

26

Roper (note 17), 83.

27

Roper (note 15), 104–105.

28

See Agnia Grigas, Frozen Conflicts: A Tool Kit for US Policymakers (2nd ed. 2016), 5.

29

King (note 8), 191.

30

ECtHR, Case of Ilascu (note 23), para. 35.

W. Alejandro Sanchez, The ‘Frozen’ Southeast: How the Moldova-Transnsitria Question has become a European Geo-Security Issue, Journal of Slavic Military Studies 22 (2009) 153, 157. 31

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However, while these newly independent States received formal international recognition, many of these States had not yet developed a cohesive national identity.32

3. Moldova Since the Dissolution of the USSR Tensions between Chisinau and Tiraspol escalated until there was an outbreak of armed conflict in the summer of 1992. The Russian Fourteenth Army intervened on the side of the Transnistrians. Besides direct participation of the Russian military, there were also arms transfers that may or may not have been authorised by Moscow.33 The fighting resulted in approximately 1,000 deaths and 130,000 people either internally displaced or seeking refuge in other countries.34 On 21 July 1992, the fighting ended with Moldova signing a cease-fire agreement that was notably countersigned by Russia, as opposed to the Transnistrian leadership.35 That agreement contemplated, among other things, the gradual withdrawal of the Fourteenth Army.36

a) 1992–2002: State Consolidation and Transnistrian Negotiations The Organization for Security and Cooperation in Europe (OSCE) began its mission in Moldova in February 1993.37 A Joint Control Commission – Moldova and See Thomas W. Simons, Jr., Eurasia’s New Frontiers: Young States, Old Societies, Open Futures (2008), 23–24. 32

In the Ilascu decision, the ECtHR stated that “In 1991–1992, during clashes with the Moldovan security forces, a number of military units of the USSR, and later of the Russian Federation, went over with their ammunition to the side of the Transdniestrian separatists, and numerous items of the Fourteenth Army’s military equipment fell into separatist hands. The parties disagreed about how these weapons came to be in the possession of the Transdniestrians.” ECtHR, Case of Ilascu (note 23), para. 56. See also, Special Committee on European Affairs of the New York City Bar (note 7), 279–280. 33

34

King (note 8), 178.

Graeme P. Herd, Moldova & the Dniestr Region: Contested Past, Frozen Present, Speculative Futures? Conflict Studies Research Centre, Central & Eastern Europe Series 5 (7) (2005), 3, available via: http://www.da.mod.uk/Publications/category/68/moldova-the-dniestr-regioncontested-pastfrozenpresent-speculative-futures0507-1539 (accessed on 2 June 2017). 35

36

Kolstø et al. (note 20), 994.

Stefan Wolff, A Resolvable Frozen Conflict? Designing a Settlement for Transnistria, European Centre for Minority Issues Issue Brief No. 26, November 2011, 3, available via: http://www.ecmi.de/publications/ detail/a-resolvable-frozen-conflict-designing-a-settlement-for-transnistria-226/ (accessed on 2 June 2017). 37

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Transnistria with the addition of Russia, Ukraine, and the OSCE as three observers – was established to oversee the peacekeeping. Post-independence politics in Moldova were driven by trying to define what a postSoviet ‘Moldovan’ identity would be. There were significant tensions over language rights as Romanian-speakers sought to reinstate their language after a history of explicit and de facto Russification. On 24 November 1994, a new Moldovan Constitution was ratified, which gave autonomy to Transnistria and to Gagauzia, a region made up primarily of an Orthodox Turkic people.38 In these early years after the dissolution of the Soviet Union, EU policy towards Moldova was focused on providing technical assistance, not Transnistrian conflict resolution. Mediation of the conflict was via the OSCE, Russia, and Ukraine. On 8 May 1997, the President of Moldova and the leader of the TMR signed a memorandum regarding the normalisation of the relations between Chisinau and Tiraspol.39 William Hill, who served as the Head of the OSCE Mission to Moldova from 1999–2001 and from 2003–2006, explains that what came to be known as the ‘Moscow Memorandum’ was “negotiated largely under the auspices of [the] Russian foreign minister, Yevgeny Primakov,” and called for the parties to, in the words of the document, “construct their relations within the framework of a common state,”40 although there was much disagreement as to what a ‘common State’ entailed. The TMR’s leadership understood the term to mean an equal partnership between two States with “divided powers, delegated powers, unified powers, and borders within the former Moldovan Soviet

Article 111 The Constitution of the Republic of Moldova, 18 July 1994, Monitorul Oficial al R. Moldova, N1, entitled “Special Autonomy Statutes of Gagauzia,” states, in part “Gagauzia is an autonomous territorial-unit having a special statute and representing a form of self-determination of the Gagauzian people, shall constitute an integrant and inalienable part of the Republic of Moldova and shall independently solve, within the limits of its competence, pursuant to the provisions of the Republic of Moldova Constitution, in the interest of the whole society, the political, economic, and cultural issues”. See also Article 1 (1) The Law on the Special Legal Status of Gagauzia (Gagauz Yeri), 23 December 1994, available at: http://www.regione.taa.it/biblioteca/minoranze/gagauziaen.pdf (accessed on 2 June 2017); see also, Marc Weller, Settling Self-Determination Conflicts: Recent Developments, European Journal of International Law 20 (2009), 119. 38

Memorandum for the Bases of Normalization between the Republic of Moldova and Transdniestria, 8 May 1997, available at: http://www.osce.org/moldova/42309?download=true (accessed on 2 June 2017); see also Herd (note 35), 3 (referring to agreements “granting further autonomy and calling for more talks”). 39

40

Hill (note 20), xi (quoting from the “Moscow memorandum”).

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Socialist Republic.”41 In short, negotiators from Chisinau sought reintegration of Transnistria in a unitary State while negotiators from Tiraspol sought effective sovereignty.42 A significant domestic political shift occurred when the Communist Party of Moldova won 71 out of 101 seats in Parliament in the 2001 election.43 This led to a period of proposed legislation to increase the teaching of Russian and decrease the teaching of Romanian history being met with protests in the streets, leading to the proposal being dropped, only to be followed by a new policy from the Ministry of Education requiring Russian language instruction as of January 2002.44 This upheaval over language of instruction was but a further iteration of Moldova’s internal struggle to define itself.

b) 2002–2003: The Kiev Document and Kozak Memorandum As part of the 1999 OSCE Summit in Istanbul, Russia agreed to withdraw troops from Transnistria by 2002.45 Although this commitment originally did not have any pre-conditions, after Putin’s election to the Russian presidency on 2000, he linked withdrawal to settlement of the final status of Transnistria.46 In 2002, Russian troops were still in Transnistria, the conflict dragged on, and negotiations were at an impasse. Nonetheless, the next two years brought the parties closer to resolving the Transnistrian crisis than any other time until then. In July 2002, the ‘Kiev Agreement’ proposed the federalisation of Moldova and the restructuring of the Parliament into a bicameral legislature.47 While federalisation or power-sharing structures have been used as tools to resolve other conflicts, Moldova’s history as a unitary State made many

41

Roper (note 15), 112.

42

See Special Committee on European Affairs of the New York City Bar (note 7), 226; 230–233.

43

Roper (note 17), 88.

44

Ibid., 88–89.

Organization for Security and Cooperation in Europe (OSCE), Istanbul Summit Declaration, Istanbul Document 1999, 19 November 1999, 49, para. 19, available at: http://www.osce.org/mc/ 39569?download=true (accessed on 2 June 2016). 45

46

Roper (note 17), 87.

47

See ibid., 91.

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of its citizens wary or even hostile to federalisation.48 There was also the concern that the amount of power afforded Transnistria in the proposal would provide a wedge for Moscow to affect Moldova’s internal politics on an ongoing basis.49 Further complicating matters, at about this time, the Transnistrian negotiators shifted from seeming to treat the discussions seriously to being obstructionist.50 The politics were not aligned to allow for the bargaining needed to make a breakthrough in negotiations. Russia tasked Dmitri Kozak, a senior member of the Presidential Administration, with trying to find a solution. “Working alongside but not as part of the formal negotiating process,”51 Kozak produced a settlement proposal in November 2003. Former OSCE Head of Mission William Hill describes how he and his colleagues at the OSCE: were particularly concerned by the provisions of the Memorandum for Transdniestrian representation in the upper house (Senate) of the proposed bicameral legislature. Transdniestria would have only slightly more than one-third of the senators, whereas the agreement called for a two-thirds vote in both houses for even the most routine federal legislation to be adopted. In effect, the Transdniestrian representatives would have a veto over almost all the activities of the reunited national government – clearly nor a formula for a viable state.52

This was not so much federalisation, as refashioning Moldova into a loose confederation. Hill wrote: “The OSCE Mission, after all, had already concluded publicly in November 1993 that a confederation was not a realistic or viable solution to the Transdniestrian problem, and a decade of negotiation and evolution had not altered this assessment.”53 Revised versions of the Kozak Memorandum “attempt[ed] to exclude other actors and ensure unilateral Russian control of security arrangements […]. ”54 This was a technique that Moscow had used in various conflicts: ‘bilateralising’ what is ostensibly a multilateral negotiation. However, the EU, the OSCE and the United States (US) all told the Moldovan leadership that they were against Moldova signing 48

Hill (note 20), 61.

49

See ibid., 60–61.

50

Ibid., 61.

51

Ibid., xi.

52

Ibid., 141.

53

Ibid., 121.

54

Ibid., 148.

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the Kozak Memorandum.55 In a turn of events that would surprise the Russian leadership and have long repercussions, the day before the final version of the agreement was to be signed, Moldovan President Voronin notified Russia that Moldova would not sign the agreement. Political scientist Nicu Popescu draws the lesson from the foundering of the Kozak Memorandum “that no solution to the conflict could be found without the EU being part of the solution.”56 However, Popescu also notes that “the EU lacked the channels and the institutions to systematically influence the conflict settlement process. By sending Kozak as a special envoy, Russia easily sidelined the EU, the OSCE and Ukraine by engaging in secret talks with Moldova.”57 As a matter of political reality, a lasting solution to the situation in Moldova will likely require cooperation, or at least acquiescence, by both Russia and the EU.

c) 2005–2011: Action Plans and Association Agreements The period immediately following the collapse of the Kozak Memorandum also marked a time of increasing EU involvement in addressing the situation in Transnistria. Between 1992 until the launch of the European Neighbourhood Policy (ENP) in 2002 there had been no direct EU involvement in settling the Transnistrian conflict, nor was there direct involvement in the mediation program by EU Member States. This is in contrast to other frozen conflicts where EU Member States did become directly involved in mediation, such as France in Nargorno-Karabakh and Germany, France and the United Kingdom (UK) regarding South Ossetia.58 In the case of the Transnistrian conflict, the OSCE was the lead European institution. In March 2003, the European Commission initiated consultations with Ukraine and Moldova concerning border controls.59

55

Popescu (note 4) 46.

56

Ibid., 47.

57

Ibid.

58

Ibid., 42.

59

Ibid., 44.

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That same year, the EU explored the idea of joint EU-Russia peacekeeping. However, Russia “was not willing to trade its dominance in the conflict management mechanisms in Transnistria for some illusory form of cooperation with the EU.”60 Given the leverage that Russia has had by being the only mediator with ‘boots on the ground’ in conflict zone plus the lesson that Russia had seemed to take from its inability to finalise the Kozak Memorandum in the face of EU, US, and OSCE scepticism, this is not a surprising result. This was also the time of the colour revolutions in Georgia (2003–2004), Ukraine (2004–2004), and Kyrgyzstan (2005).61 In Moldova, 2005 brought the re-election of the Communists, but the Voronin presidency from 2005 to 2009 was “a less-thandemocratic government with an unclear external alignment.”62 Moldova was now considering how to approach an angered Russia that was wary of any non-Russian involvement in regards to Moldova and an increasingly-active EU that was concerned with the situation that, after the 2007 enlargement to Romania, would be on the EU’s eastern border. 2005 also marked the start of the EU’s Border Assistance Mission to Moldova and Ukraine (EUBAM) to help monitor smuggling via Transnistria as well as the expansion of the Transnistrian negotiations into the ‘5+2’ format, with the EU and US joining as observers. In addition, the EU and Moldova signed Moldova’s Action Plan under the ENP for increasing cooperation and harmonisation with the EU. (The ENP will be discussed in Section IV.). By contrast, in 2005 Russia banned the importation of Moldovan wines, ostensibly for safety reasons.63 The ban lasted until 2007. Moldova’s economic ties to the EU continued to strengthen in 2006 as Moldova received beneficial EU trade status that lowered tariff barriers.64 However, in order for 60

Ibid., 45.

Christian Hagemann, External Governance on the Terms of the Partner? The EU, Russia and the republic of Moldova in the European neighborhood Policy, Journal of European Integration 35 (2013), 768 (footnotes omitted); see generally, Lincoln A. Mitchell, The Color Revolutions (2012). 61

62

Hagemann (note 61), 768.

Steven Woehrel, Moldova: Background and U.S. Policy, Congressional Research Service, 5 June 2013, available at: https://www.hsdl.org/?view&did=738815 (accessed on 9 June 2017), 6. 63

64

Popescu (note 4), 57.

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Transnistrian companies to receive these benefits, they had to be registered in Moldova. Transnistrian companies had been avoiding regulatory oversight by Chisinau by exporting through Ukraine, which accepted Transnistrian goods even without custom stamps from Chisinau. The EU was able to persuade Ukraine to stop doing so as of March 2006, which then incentivised Transnistrian companies to register with Chisinau.65 Almost all did so and Transnistrian exports to the EU increased by 59% between 2006 and 2008.66 “EU trade incentive gave strong incentives for Transnistrian companies to operate under Moldovan law.”67 Nonetheless, the Transnistrian and Russian political leadership characterised this as an economic blockade and the Transnistrians stopped participating in the 5+2 negotiations.68 Regional events would soon change the context of the dispute over Transnistria. First, the EU enlarged to include Romania and Bulgaria as of 1 January 2007. Transnistria was now a conflict in a State on the EU’s border. Then, in February 2008, Kosovo declared independence and the US and many EU Member States recognised its Statehood, over Russian objections. Six months later, Russia invaded Georgia in support of separatists in South Ossetia and Abkhazia. At first, despite the uncertainty caused by these events, this was a time of guarded optimism for Moldova’s pro-EU political parties. The EU itself was increasing its engagement with Moldova with the inauguration of the ENP’s Eastern Partnership programme in 2009. A group of EU-oriented parties became the governing coalition in Moldova’s Parliament. Along with increased ties to the EU and a new, more clearly western-oriented ruling coalition, there were advances in the Transnistrian negotiations on a variety of technical issues, such as railway transportation and telephone service.69 The 5+2 format was spurred in 2011 by “the US-Russian foreign relations ‘reset,’ deepening German-Russian relations and the change of leadership in Ukraine.”70 Moreover, Igor Smirnov’s leadership of the TMR ended in 2011 with the election in December of Yevgeny Shevchuk, who had emphasised a relaxation of border checks and 65

Ibid., 58–59.

66

Ibid., 57.

67

Ibid.

68

Popescu (note 4), 59; see also Woehrel (note 63), 3–4.

69

Wolff (note 37), 3.

70

O’Loughlin/Toal/Chamberlain-Creanga (note 5), 230.

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“free movement of people and goods” across the Nistru.71 And, despite intense Russian lobbying against pursuing further integration with the EU (to be discussed below), Moldova and Georgia initialled the EU Association Agreement in November 2013 and Ukraine signed certain sections of its own Association Agreement. All three countries anticipated having completed Association Agreements in the coming months. Unfortunately, this cautious optimism soon gave way to renewed concern. Following these steps towards completing the Association Agreements, Russia annexed Crimea in February 2014 and Eastern Ukraine descended into military conflict. In March 2014, members of the TMR Parliament asked Russia to annex Transnistria, as it had Crimea.72 Russian special envoy on Transnistria Dmitry Rogozin said in May 2014 that “Russia, as a guarantor of peace and stability on the Dnestr River, will do everything to prevent the isolation of Transdnestr.”73 However, Russia did not seem to be pushing towards any form of annexation of Transnistria. Gennady Konenko of the Moscow-based Institute of CIS Studies said: “The problem is that we do not have a common border with Transdnestr, and we do not feel that our citizens are under threat.”74 Rather, in the week following Moldova signing the Association Agreement, Rogozin signed memoranda with Yevgeny Shevchuk, the current ‘President’ of Transnistria, covering expansion of trade between Russia and the secessionist region.75 Tensions between Tiraspol and Moscow have also waxed and waned with Shevchuk’s rise to power, with some contending that Moscow decreased assistance at times in a seeming hope to drive him from the leadership of the breakaway regime.76

71

Ibid.

Ivan Nechepurenko, Rogozin Vows to Protect Russians in Transdnestr – Just Like in Crimea, Moscow Times, 11 May 2014, available at: https://themoscowtimes.com/articles/rogozin-vows-toprotect-russians-in-transdnestr-just-like-in-crimea-35328 (accessed on 6 June 2017). 72

73

Ibid.

74

Ibid.

Russia Seeks Closer Ties With Transdnestr After Moldova's EU Deal, The Moscow Times, 3 July 2014, available at: https://themoscowtimes.com/articles/russia-seeks-closer-ties-with-transdnestr-aftermoldovas-eu-deal-36982 (accessed on 6 June 2017). 75

William H. Hill, Is Moldova Headed East? Wilson Center Kennan Cable No. 8. June 2015, 5, available via: http://www.acg.edu/ckeditor_assets/attachments/1635/8-kennan_cable-hill.pdf (accessed on 1 July 2017). 76

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The period since 2009 has also been a time of domestic political gridlock, embezzlement scandals, and constitutional crises on the right bank, which will be discussed in section III., below.

B. Disentangling Ongoing Challenges and Complex Crises

In part, Transnistrian separatism is an attempted “secession of the successful” where Soviet-era managers seek to maintain control of the valuable industrial resources concentrated on the left bank of the Nistru.77 This explains the motivation of some of the political and economic elites in Transnistria, but not the interests of the average Transnistrian. The general public, not just in Transnistria but on both the left bank and the right bank, has concerns that are both broader and deeper. At the most basic level, there are questions of identity. What does it mean to be ‘Moldovan’? Is this the eastern edge of Europe or the western border of a Eurasian region led by Moscow? Or is there a border that runs down the Nistru, between the areas controlled by Chisinau and by Tiraspol? In addressing these questions, one confronts three interlocking challenges: (a) the challenge of secessionism; (b) the ongoing challenge of State stabilisation; and (c) the challenge of foreign relations in such situations. The first is the question of how to respond to Transnistrian separatism. The second considers the challenges of Moldova as a young State in a land with a long history and a heterogeneous population. Third, the challenge of foreign relations considers the particular dilemmas of small States on the normative borderland between two larger powers. Each of these challenges affects the others. The next section will consider Transnistrian separatism, first by elucidating the relationship between the right of self-determination to the act of secession. And, second, by considering how legal rhetoric has been used in the Transnistrian conflict.

77 O’ Loughlin, et al. explain that the Soviets had made Transnitria “a showcase for heavy industry, whereas right-bank Moldova was conceived as a rural farming region (King 2002). This industrialagricultural split has greatly affected the ethno-linguistic makeup and material wealth of the two regions”, O’Loughlin/Toal/Chamberlain-Creanga (note 5), 235.

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II. The Challenge of Secessionism and the Uses of International Legal Argument A. The Law

After a long gestation in political theory, self-determination emerged as a right under international law in the twentieth century. In particular, Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights states: “All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”78 Issues of self-determination can be disconcertingly personal. How does one describe one’s own personal identity? (Moldovan? Transnistrian? Russian? Something else?) To which community or communities does one feel an affinity? In such a context, the role of law can be easily misunderstood (at best) or deliberately distorted (at worst). In particular, separatists often claim a right to ‘remedial’ secession as part of the right of self-determination. Secessionism is a dilemma for both domestic politics and international law. By crossing the wires of geopolitics and personal identity, separatist conflicts such as the one in Moldova are difficult to regulate or resolve. To shed light, as opposed to heat, there are two aspects of the definition of selfdetermination that need clarification: specifying what is a ‘people’ and elucidating what would constitute “freely determin[ing] and freely pursu[ing] political status and economic, social and cultural development.”

78 Article 1 (1), International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171; Article 1 (1), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS 993, 3. Moreover, The UN Charter referred to self-determination in Article 1, stating that one of the purposes of the UN was “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples […]” See Art. 1 (2) and Art. 55 Charter of the United Nations. See also, Ian Brownlie, Principles of Public International Law (7th ed. 2008), 580 (describing self-determination as “the right of cohesive national groups (‘peoples’) to choose for themselves a form of political organization and their relation to other groups”); Daniel Thürer, Self-Determination, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4 (2000), 367.

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Rather than focusing on older ideas of whether a people are defined primarily by ethnicity or language or geography,79 James Crawford concluded that there are actually a variety of ‘units’ that in modern practice may claim a right of self-determination, including: – Former colonies and trust territories; – States; – Distinct politico-geographic areas that are effectively non-self-governing; – Situations where the parties to the dispute mutually agree in the self-determination status of the entity in question.80 As for the substantive content of a right of self-determination, the Québec Commission, a group of experts convened by a committee of the National Assembly of Québec to provide advice concerning the legal issues implicated by a hypothetical secession of Québec, found that the right to self-determination is context-dependent and that secession is clearly recognised as a remedy only in the case of decolonisation.81 The International Court of Justice (ICJ) later noted in the Kosovo Advisory Opinion

As the Canadian Supreme Court put it in the Secession of Quebec opinion, the meaning of “peoples” is “somewhat uncertain”, Supreme Court of Canada, Reference re Secession of Quebec [1998] 2 SCR 217, para. 123. For example, the commission of jurists that addressed the status of the Aaland Islands in 1920–1921 used such an ethnographic definition. But, see Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995), 73 (arguing that an ethnographic definition would lead to instability). According to the Italian jurist Antonio Cassese, the “UN has remained silent in response to claims” by ethnic groups such as the Kurds or the Basques seeking self-determination, ibid., 103. In the era of decolonisation, a “people” was the population of a colony. See e.g. GA Res 1514 (XV) of 14 December 1960. This pointedly ignored the ethnographic construction as colonial borders sliced across ethnic communities. By defining a people in this way, the self-determination rule supported existing boundaries and undercut the claims of subnational groups seeking secession. 79

80

See James Crawford, The Creation of States in International Law (2nd ed. 2006), 127.

Expert opinion prepared in 1992 upon request of the Government of Quebec: Thomas M. Franck/Rosalyn. Higgins/Allain Pellet/Malcolm N. Shaw/Christian Tomuschat, “The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty”, in: Anne F. Bayefsky (ed.), Self-Determination in International Law: Quebec and Lessons Learned (2000), 241, para. 3.07. But, see, Reference re Secession of Quebec (note 79) at para. 123 (with the Canadian Supreme Court opining that “[a] right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme cases and, even then, under carefully defined circumstances […]”). 81

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that, although there are “radically different views” among States concerning remedial secession, almost no State proposed remedial secession as a primary argument.82 As Marc Weller wrote in 2008, despite Russia’s support of the Transnistrian separatists: the Russian Federation, and many other States faced with an equivalent claim [as that of Chechnya], made sure that the doctrine of self-determination [as a positive entitlement to secession] was framed to apply only in the classical and narrowly defined circumstances of salt-water colonialism which practically no longer exist.83

Rather than secession, the prevalent view in the international community is that the choice of political system and pursuit of economic, social and cultural development would occur within the pre-existing State and self-determination (outside of decolonisation) does not require the establishment of a new State. Such ‘internal selfdetermination’ makes self-determination related to the respect of minority rights. While there may not be a right to remedial secession outside of the colonial context, nor can one credibly argue that secession in and of itself is a breach of international law.84 If anything, international law is largely silent regarding a supposed right to secession, and attempted secessions are, first and foremost, assessed under domestic law.85 Thus, the pertinent aspects of the law of self-determination after the era of decolonisation, can be summarised as follows: – Self-determination for a colonised people allows for the ability to separate the colony from the colonial State so that the colony may gain independence and become a sovereign State; – For a State as a whole, self-determination means the right to be free from external interference in its pursuit of its political, economic, and social goals; International Court of Justice (ICJ), Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403, paras. 82–83. 82

83

Weller (note 38), 113.

84

See Crawford (note 80), 390.

Concerning the silence of international law, see for example, Nguyen Quoc Dinh/Patrick Daillier/ Alain Pellet, Droit International Public (7th ed. 2002), 526, para. 344 No. 1: “la sécession n’est pas prise en compte en elle-même par le droit international,” that is, “secession in itself is not taken into account by international law”. 85

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– For communities that are not colonies and are within existing States, self-determination means internal self-determination, essentially the pursuit of minority rights within the existing State.86 However, as a matter of political practice, States strongly disfavour secession. States have built a superstructure of international law that may not make secession illegal but it does make separation difficult to achieve. For example, it can be illegal for an outside State to provide material support to secessionists.87 But for certain circumstances (such as in an operation authorised by the United Nations (UN) Security Council), such support could be considered a violation of the sovereignty of the pre-existing State from which the secessionists are attempting to separate. Moreover, military intervention by an outside State in support of secessionists is especially problematic as it would violate the UN’s prohibition on the use of force and could be considered an act of aggression and a violation of territorial integrity. (The Russian military interventions in Georgia and Ukraine show, however, that legal principles are sometimes only noted in their breach.)

B. Law and the Transnistrian Challenge: In Theory and in Practice

In the days after the ICJ’s Kosovo Advisory Opinion, the Transnistrian leadership (and the leaders of other separatist groups) claimed the opinion was a victory for their claims. The TMR stated: “The decision of the International Court of Justice is of international and legal importance since it levels any unilateral attempts of other states to impede the will of the people through adoption of their own laws.”88 But this ignores not only the opinion itself, but also the framework of the law of self-determination. First, one must assess whether either the so-called Transnistrian Moldovan Republic or its population can be properly understood as a “self-determination unit,” to use James Crawford’s terminology. Transnistria is not a former colony. As such, it cannot claim secession as a right. Nor have the parties to this dispute mutually agreed the 86

See Crawford (note 80), 127–128.

87

See Special Committee on European Affairs of the New York City Bar (note 7), 276–278.

Statement of the Foreign Ministry of the Transdniestrian Moldavian Republic in view of the Decision of the International Court of Justice on Kosovo, 26 July 2010, available at: http://mfapmr.org/en/jvn (accessed on 6 June 2017). 88

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population of Transnistria has a right of self-determination that is different from the population of Moldova.89 If neither a colony, not the subject of mutual agreement between the parties, the two other categories one must assess are whether Transnistria is already a State or whether it is essentially a non-self-governing territory within Moldova. We will consider each in turn. Had the declaration of the TMR (either in 1990 or 1991) already transformed Transnistria into a State? The Transnistrian leadership has, at various times either directly claimed or implied that the TMR is already a separate State but just has not been formally recognised as such. The former OSCE Head of Mission William Hill has described the negotiating stances of the parties from 1992 to 2002 in this way: Moldovan representatives resisted any attempt to suggest that Transdniestria had any status other than that of an integral part of a unitary Moldovan state […]. This was in stark contrast to Tiraspol’s contention that Transdniestria had been part of the Soviet Union, but never part of an independent Moldovan state.90

The Transnistrian leadership may have been arguing that its declaration of being a sovereign republic within the USSR on 2 September 1990 predated Moldova’s own declaration of independence in 1991 as well as the dissolution of the USSR. The TMR’s leadership has asserted that the TMR has achieved all of the Montevideo criteria for Statehood, but for the actual fact of recognition.91 In assessing issues such as whether Transnistria is already a State or whether it is a region within Moldova struggling for Statehood, “a certain date, or several dates, will assume prominence in the process of evaluating the facts.”92 The critical date would be 89 Regarding this latter point, one can contrast this to the situation in Gagauzia. Weller finds that the settlement that Chisinau reached with the Gagauz leadership is particularly interesting because while it confirms that Gaggauzia is a self-determination unit, it also “emphasiz[es] that the parties have adopted autonomy as the most appropriate form of self-determination in this instance. In this way, Gagauzia did not have to surrender its claim to self-determination as a precondition for a settlement, but it has implemented that right through the settlement.” Weller (note 38), 119. 90

Hill (note 20), 85.

91

Special Committee on European Affairs of the New York City Bar (note 7), 254–255.

Brownlie (note 78), 125, 126; Permanent Court of Justice (PCIJ), Legal Status of Eastern Greenland (Norway v. Denmark), Series A/B, No. 53, 45 (the Court finding that the Norwegian proclamation of 10 July 1931 was the critical date); Robert Jennings/Arthur Watts (eds.), Oppenheim’s International Law, Vol. 1 (9th ed. 1992), § 273, 710–712. 92

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the date that establishes any relevant boundaries. In the case of Moldova, the relevant date was the dissolution of the USSR and the subsequent recognitions of the Republic of Moldova. The boundaries at the time of dissolution included Transnistria as part of Moldova. No United Nations (UN) Member State – including the USSR in 1990 or, later, the Russian Federation – had or has (as of this writing) recognised Transnistria as separate from Moldova. The boundaries recognised by Russia and other countries included the territory of Transnistria as being within Moldova. Applying uti possidetis, as it has been adjusted by the Badinter Commission, Transnistria is a region within the State of Moldova, not an independent State.93 If neither a former colony nor an existing State, one should assess whether Transnistria is a: distinct political-geographical area[], whose inhabitants are arbitrarily excluded from any share in the government either of the region or of the State to which they belong, with the result that the territory becomes in effect, with respect to the remainder of the State, nonself-governing.94

The era of the dissolution of the Soviet Union was a time in which the young Moldovan State shifted from defining its identity based on the USSR to one that is more related to Romanian culture (ending the use of Cyrillic script, favouring Moldovan – really Romanian – as the language of instruction, the adoption of a flag with the Romanian tricolour). While this was not what a segment of the population in Transnistria – or in Bessarabia, for that matter – wanted, this is not the same as making that region non-self-governing. And, even if that were the case, there would still be no right of secession, but rather the obligation of Moldova to protect the political, cultural, and linguistic rights of the Transnistrian population. This underscores once again why the issues of the rule of law in Moldova are critical to settling the Transnistrian case. In any case, the TMR remains unrecognised by any UN Member State, including Russia. Such non-recognition is not an anomaly of politics; to the contrary, it can be

93 See Conference on Yugoslavia Arbitration Commission, Opinion No. 2, International Legal Materials (ILM) 31 (1992), 1497; Conference on Yugoslavia Arbitration Commission, Opinion No. 3, ILM 31 (1992), 1499. 94

Crawford (note 80), 127.

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better understood as how the international community enforces legal norms.95 While recognition is a political decision within a legal framework, it is that same legal framework that contextualises decisions to withhold recognition. If one can readily analyse the legal issues, why, as of this writing, is Transnistria still a challenge 25 years after the battles of 1992? One cannot say that the intransigence of the Transnistrian situation is due to a deep ideological divide separating the populations on each bank of the Nistru. John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga found “that separateness has not created an attitudinal chasm […] attitudes on both banks have greater commonalities than are usually acknowledged.”96 Both sides of the conflict are unsatisfied with the direction of their own polity with just over one quarter of the respective populations being satisfied. Satisfaction levels were highly correlated with material well-being.97 Rather than being a story of ideological separation of two communities, the intransigence of the Transnistrian conflict is a reminder of the limits of international law. While many may hope that law would provide a framework for conflict resolution, the rhetoric of international law has at times been used to exacerbate the situation. In this case, the insistence of a right to secession by the Transnistrian leadership paints them into a corner where a negotiated solution with anything less than sovereignty could make them look weak. At other times, the language of law has not been asserted strongly enough. While it may not be a breach of international law for a sub-national actor to declare independence, international responsibility can more clearly attach to the actions of States in relation to an attempted secession. Russia’s involvement in the Transnistrian dispute, including direct military intervention, the continued garrisoning of troops, the transfer of arms to the secessionists, and political and economic assistance are each potential breaches of international law.98 Sir Hersch Lauterpacht had described non-recognition as “the minimum of resistance which an insufficiently organized but law-abiding community offers to illegality; it is a continuous challenge to a legal wrong”, Hersch Lauterpacht, Recognition in International Law (1947), 431. For a discussion of attempted secessions that did not achieve widespread recognition, see Crawford (note 80), 403–418. 95

96

O’Loughlin/Toal/Chamberlain-Creanga (note 5) , 227–228.

97

Ibid., 238.

Regarding the use of Russian troops in the 1992 War, see ECtHR, Case of Ilascu (note 23), para. 382. Regarding the use of the Fourteenth Army and its continued presence in Transnistria, as well 98

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Regardless as to whether certain actions would lead to State responsibility, Russia’s actions go beyond that of a neutral mediator and into the area of active participation. The role of the Fourteenth Army in the 1992 war, Russia’s combination of sanctions on Chisinau and active economic assistance for Tiraspol is in tension with its role as a mediator. More recently, its policy offering Russian passports to Russian-speakers in Transnistria is worrisome due to Russia’s interpretation of its right to intervene to protect Russian co-nationals in neighbouring countries. In 2011, it was estimated that Russia had issued 100–140 thousand passports in Transnistria.99 Moreover, Russia has used its position as a mediator to its own advantage. Pursuing separate bilateral negotiations, such as in the negotiations over Primakov’s Moscow Memorandum in 1997 and Kozak’s memorandum in 2003, has allowed Russia to leverage its privileged position as a mediator. Russia’s goal to maintain influence in Moldova, even after settlement, is shown in each of these texts, especially by the ability of Moscow’s client Transnistria to act as a spoiler in both Moldovan foreign affairs and domestic legislation. International law could be a framework within which the parties attempt to address the conflict, but rather than being a frame, it is very much part of the picture. The rhetoric of law has become part of the strategy of the parties. It is not the frame of the conflict; it is part of the conflict. This brings one back to issues of State stabilisation.

III. The Challenge of Stabilising a Young State The resolution of the Transnistrian conflict is intertwined with the challenge of stabilising the Moldovan polity, which is still transitioning from its Soviet past. To understand the problem of stabilising Moldova, we must consider the intertwined problems of political gridlock and official corruption.

as Russian support of Transnsitria more generally, see Special Committee on European Affairs of the New York City Bar (note 7), 278–298. In response to the Ilascu judgment, Moscow denied control or direct involvement in Transnistria and the Ministry of Foreign Affairs condemned the judgment for applying a “double standard” against Russia. Lauri Mälksoo, Russian Approaches to International Law (2015), 162. Matthew Rojansky, Prospects for Unfreezing Moldova’s Frozen Conflict in Transnistria, Briefing by Matthew Rojansky, Deputy Director, Russia and Eurasia Program Carnegie Endowment for International Peace, 14 June 2011, 4–5. 99

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A. Political Gridlock

Moldova, situated in both the EU’s ‘Neighbourhood’ and the Russian ‘Near Abroad’, and comprised of a population with linguistic and ethnic ties to Romania, Russia, Ukraine, and elsewhere, is a State where questions of national identity become political debates. The result is highly-contested domestic politics and – when coupled with the siren-call of political corruption – an impetus to political gridlock. The post-independence era has also been a time of vacillating politics and electoral turmoil. In July 2000 the Parliament overwhelmingly backed a constitutional amendment for the election of the President by Parliament instead of by popular election.100 A 3/5ths super-majority of Parliament, amounting to 61 votes, was required to elect a President.101 Parliament subsequently became deadlocked over the choice of a new President and, by the new rules; Parliament was dissolved in December 2000. The new parliamentary elections, in 2001, brought the Communist Party back to power and Vladimir Voronin was elected President. As discussed above, the policies of the period swung between building ties with Russia to deepening the relationship with the EU. The Communists were accused of rigging the April 2009 parliamentary elections, resulting in widespread protests that included a brief take-over of the Parliament building and the Presidential offices.102 As a result of that election, no single party or coalition of parties had 61 votes and the ability to elect a President. Consequently the Parliament was dissolved and snap elections were held in July 2009, this time resulting in a ‘pro-European’ coalition in the majority. However, from then until March 2012 no party or coalition had the required 61 votes. During these three years, Moldova was without a President until an expanded pro-European coalition of parties was able to break the gridlock and elect Nicolae Timofti.103 But the political crises were not over. In December 2012, a series of accusations and counter-accusations centring on an accidental death in a hunting party of political and business elites spilled into the political arena, leading to a rift in the leadership of pro100

Hill (note 20), 59.

101

Woehrel (note 63), 1.

See Luke Harding, Anti-communist protesters storm Moldova parliament after election, The Guardian, 7 April 2009, available at: https://www.theguardian.com/world/2009/apr/07/moldovaprotests-chisinau (accessed 2 July, 2017); see also, Hill (note 76), 1. 102

103

Woehrel (note 63), 1.

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European parties that eventually ended the coalition.104 Although the then-current Prime Minister lost his position, most of the coalition members regrouped into a new coalition in 2013 and were able to name the new Prime Minister. Further adding to the stress of the political system, in three days prior to the 2014 parliamentary elections, over $750 million was improperly withdrawn from three Moldovan banks, about 12% of Moldova’s GDP, requiring an emergency infusion of approximately $850 million, putting Moldova into a public finance crisis.105 A subsequent report by an external forensic auditor detailed a multiyear scheme of embezzlement and the laundering of Russian money.106 In the fallout from the accusations, counter-accusations and criminal cases, the pro-European coalition collapsed.107 A decision by the Constitutional Court in early 2016 returned the direct election of the President. Some analysts believe this “should improve the stability of the institutional structure.”108 Later that year, Igor Dodon, an independent candidate who had formerly been a member of the Moldovan Communist Party and was largely seen as the ‘pro-Russia’ candidate, was elected President. The Prime Minister at the time of this writing is Pavel Filip, from the ‘pro-EU’ Alliance for European Integration coalition of parties. Current reports focus on statements being made by Dodon against EU association then being refuted by Filip. Time will tell if this is a new era of gridlock.

B. Corruption and the Moldovan State

In addition to gridlock, the related problem of corruption also affects the soundness of the Moldovan State. Recent examples include the sale of banks without proper regulatory oversight, the “dubious sale of the Chisinau Airport management conces-

104

See ibid., 2.

Ivana Kottasova, How to steal $1 billion in three days, CNN Money, 7 May 2015, available at: http://money.cnn.com/2015/05/07/news/economy/moldova-stolen-billion/ (accessed on 3 July 2017). 105

106 Anon., Small Enough to Fail, The Economist, 21 November 2015, available at: http://www. economist.com/news/europe/21678831-year-after-colossal-bank-fraud-country-imploding-smallenough-fail (accessed on 6 June 2017). 107

Ibid.

108

Michael Emerson/Denis Cenusa, Moldova and Europe: A Short Guide (2016), 4.

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sion,” and the 2014 looting of nearly $1 billion dollars, discussed above.109 In early 2016, two commentators argued that “[a]t the moment, the biggest danger for Moldovan democracy is not Russian meddling, but that deep-seated corruption could lead to complete disillusionment with Western democratic, free-market values.”110 Similarly, “The U.S. Department of State declared that in 2012 ‘[t]he most significant human rights problem’ in Moldova ‘was government corruption, which undermined the credibility and effectiveness of the police and the judiciary as well as respect for the rule of law.’”111 The Economist reported in November 2015 that: A recent poll found that 79% thought their country was heading in the wrong direction, up from 47% in September 2014. Nearly 70% said that their households were worse off than a year ago. If elections were held now, parties claiming to be “pro-Russian” would win.112

Corruption in Moldova is nothing new. Moldovan political scientist Igor Botan explains that among factors leading to “relatively tolerant attitudes toward corruption” in Moldova as being the history of official corruption, a traditional tolerance for small corruption, a tradition of patriarchy, a majority rural society, and the Soviet tradition of blat (the informal use of connections and favours).113 Nonetheless, political in-fighting has made corruption difficult to uproot. Botan describes the era from 1993 to 2001 as a “period when corruption gained deep roots, but the existent ethnolinguistic cleavages prevented the public from observing and fighting corruption.”114 Political corruption is compounded by judicial corruption, in part due to the low salaries of public officials involved in enacting laws and the administration of justice:

109

See Hill (note 76), 4.

Natalia Otel Belan/Marc Schleifer, Moldova’s pro-Western facade, Politico, 30 January 2016, available at: http://www.politico.eu/article/moldovas-pro-western-facade-protest-chisinau-russia-ukraine/ (accessed on 6 June 2017). 110

Judithanne Scourfield McLauchlan, The Rule of Law, Judicial Reform and the Protection of Human Rights in Moldova and Transnistria, Intercultural Human Rights Law Review 9 (2014), 103, 117; U.S. Department of State, Moldova 2012 Human Rights Report (2012), available at: http://www. state.gov/documents/organization/204527.pdf (accessed on 6 June 2017). See also, European Commission, Implementation of the European Neighborhood Policy in the Republic of Moldova: Progress in 2014 and recommendations for action, 25 March 2015, 6. available at: http://eeas.europa.eu/archives/ docs/enp/pdf/2015/repulic-of-moldova-enp-report-2015_en.pdf (accessed on 6 June 2016). 111

112

Otel Belan/Schleifer (note 110).

Igor Botan, Letter From Chişinău, Strategic Europe, 4 December 2015, available at: http:// carnegieeurope.eu/strategiceurope/?fa=62180 (accessed on 7 June 2017). 113

114

Ibid.

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members of parliament, judges, and prosecutors.115 Former OSCE Special Representative Kalman Mizsei contends that, at least compared to Ukraine, Moldova has a better record overall in terms of the local administration of power and also limiting presidential power but it has greater problems concerning judicial corruption.116

C. Domestic Politics, Geopolitics, and the Rule of Law

The citizens of Moldova face a vicious cycle: on the one hand, one of the “main obstacles” to resolving the conflict over Transnistria is the political instability of Moldova,117 on the other hand, the conflict in Transnistria weakens and destabilises Moldovan domestic political institutions. Resolving Transnistria will help the stability of the Moldovan State but it is difficult to solve Transnistria in a time of political turbulence. Thus, the rule of law on both banks of the Nistru is important for resolving the situation in Transnistria. One must avoid using the international security dilemma as a reason to downplay domestic corruption. Political analyst Igor Botan has written that pro-European parties are essentially asserting: “‘We are pro-European thieves, but if you don’t like us the pro-Russians will come’.”118 But the domestic rule of law and the accountability of leadership has geopolitical significance, especially in systemic borderlands. While Chisinau may have stumbled at times in its pursuit of the rule of law, the situation across the Nistru has been far worse: “[…] while the civil war forced fundamental change in the Moldovan government, the conflict entrenched the Transnistrian leadership,”119 with the same person holding the position of ‘President’ of the TMR from 1991 to 2011. Transnistrian political development, much like the conflict itself, became ‘frozen’. Judithanne Scourfield McLauchlan concluded that:

115 Kalman Mizsei, Rule-of-law is key for Moldova and Ukraine, IPN, 21 March 2016, available at: http://www.ipn.md/en/integrare-europeana/75455 (accessed on 7 June 2017). 116 Ibid. Arguing “In Moldova, the situation is perhaps better related to local power and limits to presidential one; however, it is not better related to the judiciary”. 117

Wolff (note 37), 4.

Small Enough to Fail (note 106); Otel Belan/Marc Schleifer (note 110) (writing that “calling this government ‘pro-European’ is not helping”). 118

119

See Roper (note 17), 84.

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Transnistria trails behind Abkhazia (only “partly free”) and Nagorno-Karabakh. It only slightly outperforms South Ossetia, which since 2008 has been effectively transformed into a Russian military fortress in the South Caucasus.120

The European Parliament wrote that it “strongly deplores the lack of respect for human rights and human dignity in Transnistria” and “condemns the continued repression, harassment and intimidation of representatives of the independent media, NGOs and civil society by the Transnistrian separatist regime.”121 The populations on both sides of the Nistru are disaffected. Strengthening Moldovan democracy is important as an end in itself, but it may also build a bridge to the population of Transnistria. While Russia remains a key variable to settlement, a vibrant democracy and a healthy economy on the right bank could spur interest in reunification among the Transnistrian populace (though not necessarily among the Transnistrian political and economic elites).

IV. The Challenge of Foreign Policy in a Systemic Borderland A. Moldova and the European Neighbourhood Policy

This section will consider the effects of the ENP and the ENP’s Eastern Partnership program (EaP) in relation to the adoption of EU norms in Moldova, the ongoing crisis over Transnistria, and foreign relations with Russia.122 While one goal of the ENP is to fortify Moldova’s domestic order, it complicated both Moldova’s domestic politics and its international position by angering Russia as well as the segment of the 120

McLauchlan (note 111), 129.

121

As quoted in ibid., 129.

Predating any of these efforts, though, is the role of the ECtHR. While an analysis of the hundreds of cases with Moldova as a party before the ECHR is beyond the scope of this article, a few brief notes are warranted. From 1959 to 2016, the ECtHR issued 339 judgments related to Moldova; 288 of which found at least one violation. The most common claims concerned the right to a fair trial (124 claims), the protection of property (106), inhumane or degrading treatment (80), and liberty and security (74). ECtHR, Violations by article and by States, available at: http://www.echr.coe.int/ Documents/Stats_violation_1959_2016_ENG.pdf (accessed on 7 June 2017); see also ECtHR, Press Country Profile: Republic of Moldova, available at: http://www.echr.coe.int/Documents/CP_ Republic_of_Moldova_ENG.pdf (accessed on 7 June 2017); McLauchlan (note 111), 120. I discuss normative transfer by means of international tribunals at greater length in Christopher J. Borgen, Transnational Tribunals and the Transmission of Norms: The Hegemony of Process, George Washington International Law Review 39 (2007), 685. 122

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Moldovan population that looked to Moscow, rather than Brussels. These are among the challenges of foreign policy in a systemic borderland. On 27 June 2014, Moldova signed an Association Agreement with the EU that, along with those that the EU concluded with Ukraine and with Georgia, have been at the centre of much controversy among Russia, the EU, and these States. The path to the signature table stretched at least as far back as 2005, when the EU and Moldova entered into an Action Plan as part of the EU’s ENP. The EU added 12 new States to the Union between 2004 and 2007, expanding to the borders of Moldova and Ukraine. The frozen conflicts, once considered issues of the former Soviet Union, were now matters of EU security. In this context, the ENP is a “follow-up programme” to EU enlargement in order to create a “circle of friends” among sixteen countries around the EU’s borders.123 It is both a framework for cooperation and a referencepoint for domestic reformers in the Neighbourhood partner countries.124 The first step was the drafting of an Action Plan between the EU and each neighbour. The Action Plan stated that it had the “perspective of moving beyond cooperation to a significant degree of integration, including through a stake in the EU’s Internal Market, and the possibility for Moldova to participate progressively in key aspects of EU policies and programs.”125 There would be “[a]n upgrade in the scope and intensity of political cooperation” as well as “deepening trade and economic relations.”126 One priority was the “further strengthening the stability and effectiveness of institutions guaranteeing democracy and the rule of law, ensuring the democratic conduct of parliamentary elections (February 2005) in Moldova in accordance with European standards.”127

123 Hagemann (note 61), 767 (footnotes omitted). Regarding the sixteen countries in the ENP, see High Representative of the European Union for Foreign Affairs and Security Policy, Towards a New European Neighbourhood Policy, 4 March 2015, 4. 124

Hagemann (note 61), 768.

EU/Moldova Action Plan (2005), available at: https://eeas.europa.eu/sites/eeas/files/moldova_ enp_ap_final_en.pdf (accessed on 7 June 2017). 125

126

Ibid., 2–3.

127

Ibid., 4 (emphasis added).

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As part of the emphasis on ‘European standards’, the Plan included specific references to human rights and international criminal justice, including the amendment of domestic laws on religious freedom, effective execution of judgments of the European Court of Human Rights, and a commitment by Moldova to ratify the Rome Statute of the International Criminal Court.128 The Action Plan also included provisions for increasing the effectiveness of anti-corruption measures as well as an anti-money laundering regime.129 With the inauguration of the Eastern Partnership in 2009, the EU refined its policy focus for six ENP countries that were formerly part of the USSR: Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine. Under the EaP, the ENP Action Plans could lead to Association Agreements and related Deep and Comprehensive Free Trade Agreements (DCFTAs), which would be “tools for closer political association and economic integration of partners,”130 although without any promise of becoming an EU Member State. Various EU leaders viewed the EaP as a means to build a circle of friends and/or a circle of stable States,131 a slight difference in nuance that would have broader implications in policy. Moldova started its Association Agreement negotiations in 2010 and DCFTA negotiations in 2012. Moldova initialled an Association Agreement on 29 November 2013, and fully signed the agreement on 27 June 2014.132 It envisioned increasing economic cooperation and trade relations with Moldova and harmonising Moldovan

128

Ibid., 6–9.

129

Regarding anti-corruption efforts, see ibid., 6. Concerning money-laundering see ibid., 33.

High Representative of the European Union for Foreign Affairs and Security Policy (note 123), 5. 130

See Florence Gaub/Nicu Popescu, The EU Neighbours 1995–2015: Shades of Grey, European Union Institute for Security Studies Chaillot Papers 136 (2015), 7 (noting that some EU leaders focused on the “ring of friends” concept, while others on a “ring of well-governed countries” and that being one does not necessarily mean you are the other). 131

132 Although the Association Agreements had not yet been fully ratified in the domestic political systems of these countries, the Association Agreement stated that it “shall be applied provisionally” pending its entry into force. European Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, 16 June 2014, OJ 2014 L 260, 1, Article 3 (1).

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legislation to that of the EU. This would “lead[] towards the Republic of Moldova’s gradual integration in the EU internal market as stipulated in this Agreement […].”133 Further rooting the Association Agreement in ‘European standards’, the Agreement referenced treaties and declarations that would provide a framework for Moldova’s relation to EU, including the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Helsinki Final Act of 1975.134 The EU and Moldova entered into the Association Agreement for a variety of reasons. The EU wanted to secure a friendly, politically stable, neighbour. Moldova hoped to steady the ship of State, further the goal of Transnistrian reintegration, and provide a foundation for a hoped-for future membership in the EU. Why these goals would prove elusive tells a story about the interrelationship of law and politics.

B. The ENP, Domestic Stability, and Secessionism

1. Treaties and the Challenge of Domestic Political Stabilisation The early days of the Association Agreement were full of promise. After signing the Association Agreement, the General Secretary of the Council of Europe noted that Moldova’s “[e]xports increased, the economy grew and, in return for a series of reforms, including improving human rights, Moldovan citizens were granted visa-free travel into EU territory.”135 In 2012 Štefan Füle, the EU Commissioner responsible for the ENP, lauded Moldova for being the “most prominent member” of the EaP.136 But critiques have emerged over time. Some were concerned that advances in trade and in the economy have not benefited the majority of the people, who continue to bear the 133 Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of, the other part, 30 August 2014, OJ 2014 L 260/4, Article 2. 134

Ibid.

Thorbjorn Jagland, Op-Ed: Bring Moldova Back From the Brink, New York Times, 10 August 2015, available at: http://nytimes.com/2015/08/11/opinion/bring-moldova-back-from-the-brink.html (accessed on 7 June 2017). 135

David Rinnert, The Republic of Moldova in the Eastern Partnership: From ‘Poster Child’ to ‘Problem Child’?, Friedrich Ebert Siftung (2013), 1, available at: http://library.fes.de/pdf-files/id-moe/ 10184.pdf (accessed on 7 June 2017). 136

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burdens of endemic corruption and “punishingly low incomes”.137 Others have argued there has been “hardly any progress” in democracy, human rights, and the rule of law, as political elites block reforms that would erode their dominance.138 The result is a population continuing to flee its own country through emigration. The marginal effect (so far) on the deeper problems in Moldovan political culture may be due in part to EU reform efforts “focus[ing] too much on legislative reforms and not ascrib[ing] enough importance to structural challenges, such as those seen in public administration.”139 The goals of harmonising to European values are all well and good, but such reforms need an effective public administration apparatus in order to have their promise realised. The smaller-than-expected effect may also be the result of the EU not sufficiently applying the conditionality that was built into the Association Agreement in relation to civil and political rights.140 The result, according to various observers, is that the ENP and EaP have been more successful in terms of trade liberalisation than in promoting democracy, supporting the protection of civil and political rights, or decreasing corruption.

2. The European Neighborhood Policy and the Challenge of Transnistrian Secessionism While supporting democracy, a healthy economy, and good governance are ends in themselves, there is also the hope that they will aid in resolving the situation in Transnistria. The ENP and the EaP directly addressed the Transnistrian conflict. In the same year that the Transnistrian mediation expanded to include the EU as an observer, the 2005 Action Plan envisioned “[c]ontinu[ing] and develop[ing] political dialogue and cooperation with the EU on Transnistria, regional and international issues, including within the framework of Council of Europe and OSCE.”141 The EU pledged “to further step up its involvement in supporting the OSCE and mediators in this process, assist the efforts of the Joint Constitutional Commission, and to prepare 137

Jagland (note 135).

138

See for example, Hagemann (note 60), 776, 780.

139

Rinnert (note 136), 1.

140

See Hagemann (note 60), 778.

141

EU/Moldova Action Plan (note 125), 9.

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engagement in post-settlement scenario.”142 The EU also promised “to continue its efforts to ensure the fulfilment by Russia of the Istanbul commitments [such as troop removal] with regard to Moldova.”143 Although technically an observer, the EU’s practical role in the mediation was no different than any of the other third-parties.144 From the EU’s perspective, Moldova (and its problems) would be on the EU’s border after the enlargement that would include Romania. However, to Russian ears, this may have sounded like the EU inserting itself into what Russia considered its own ‘Near Abroad’. The wars in Georgia and Ukraine highlighted not only the risks of festering separatist conflicts but also the degree to which Russia was willing to intervene to pursue its foreign policy goals. The participants of the 2015 EaP summit stated that “[t]he acts against Ukraine and the events in Georgia since 2014 have shown that the fundamental principles of sovereignty and territorial integrity within internationally recognized borders cannot be taken for granted in the 21st century on the European continent.”145 Specifically in regards to Moldova, the summit participants: welcome the EU’s strengthened role in conflict resolution and confidence building efforts in the framework or in support of existing agreed formats and processes, including through field presence when appropriate. They highlight the importance of advancing the negotiations in the 5+2 format on a comprehensive political settlement of the Transnistrian conflict and welcome intensified Chisinau-Tiraspol dialogue in all formats.146

Even if Russia never fires another shot in Moldova, it already has boots on the ground in the form of the Fourteenth Army and it can further pursue its interests using the various levers available to it as a mediator in the 5+2 talks, even when the negotiations are mired in technical details rather than addressing questions of final status. If Russia’s strategic interest is to remain a power broker in Moldova that can disrupt the process of deeper cooperation with the EU, then a slow 5+2 can actually 142

Ibid., 12.

143

Ibid.

Popescu (note 4), 50. However, between the expenditures from ENP and for border assistance, Moldova after 2007 became the second biggest per capita recipient of EU funding in the ENP, after Palestine. Ibid., 57. 144

145 Joint Declaration of the Eastern Partnership Summit (Riga, 21–22 May 2015), 21–22 May 2015, available at: http://eeas.europa.eu/archives/docs/eastern/docs/riga-declaration-220515-final_en.pdf (accessed on 9 June 2017), para. 3. 146

Ibid., para 5.

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support that strategy. Also, in contrast to the EU’s reliance on multilateral institutions and negotiating formats, Russia tends to address regional conflicts (especially since 1991) via a web of bilateral relationships. Ultimately, Russia will be able to exert significant influence in framing possible endgames for the Moldovan conflict, as exemplified by Primakov’s Moscow Memorandum negotiations and the Kozak negotiations. Russia seems to be less interested in maintaining multilateralism than with the goals that it is able to achieve by leveraging its (possibly conflicting) roles as both mediator and actor. This relates to a worldview that favours bilateralism over multilateralism in international law: Lauri Mälksoo finds that “[l]ittle Russian [legal] literature enthusiastically embraces the idea that international law has made a giant leap from bilateralism to community interest.”147 Popescu contends that the EU has had no effect on changing Russian policies concerning Transnistria and its diplomacy only had “modest” effect on the Transnistrian conflict, in part because the Transnistrians could simply walk away from the negotiating table whenever it suited them.148 “However,” he continues, the EU’s initiatives “have contributed to a situation of creeping de facto reintegration of Moldova on [an] economic level which could yield some results in the future should the political will to solve the conflict become prevailing in both Moldova and Transnistria.”149 Moldova is in the neighbourhood of both the EU and of Russia and each has pursued a strategy to support its own respective norms. Due to its heterogeneous population that is periodically in internal tension with itself over issues such as language and cultural rights, as well as due to corruption in competing political factions, Moldovan society is being pulled in at least two directions.

C. Moldova in the EU Neighbourhood and in the Russian Near Abroad

A key challenge for Moldovan foreign policy is that it is geographically and normatively a borderland between the EU and Russia. In a January 2017 opinion piece, busi147

Mälksoo (note 98), 102.

148

Popescu (note 4), 62.

149

Ibid., 63.

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ness leader and chairman of the Democratic Party of Moldova, Vladimir Plahotniuc (one of the politicians involved in the internal battles within the ‘pro-European’ coalition) wrote that: Rather than a battleground, Moldova wants to be a bridge between East and West. We would welcome transformation of the zero-sum environment where, if Moldova reaches out to the European Union and the United States, it is misunderstood as anti-Russian, and where goodwill gestures to Russia are misinterpreted as a retreat from Western integration.150

While the EU has been institutionalising relations with its new neighbours, Russia has been attempting to reintegrate with former Soviet republics in a planned Eurasian Economic Union (EAEU). While some may view the ENP as a bridge to the East or, conversely, the Moscow-led EAEU as a bridge to the West, others may view treaty regimes as walls defining which countries are within, and which outside, a particular community. How Moldova, the EU, and Russia each approach this issue affects not only the treaties in question, but also, at its broadest level, Moldova’s place in Europe and, at its most specific, the resolution of Transnistria.

1. Treaties as Bridges or Treaties as Walls Whether it is possible to be a party both to an EU Association Agreement and the EAEU is in part a question of politics – whether the current members of these treaty regimes are willing to allow States to be a member of both regimes – and in part a question of treaty design: do the obligations incumbent on being a member of each regime conflict with one another to an extent that makes dual membership an irresolvable conflict of laws? Štefan Füle, who at the time was the EU Commissioner for the ENP, said in 2013: It is true that the [Eurasian] customs-union membership is not compatible with the DCFTAs […]. This is not because of ideological differences; this is not about a clash of economic blocs; or a zero-sum game. This is due to legal impossibilities. For instance, you

150 Vladimir Plahotniuc, A message for Trump and the US: Moldova wants to be a bridge, not a battleground, between East and West, Fox News, 7 January 2017, available at: http://www.foxnews. com/opinion/2017/01/07/message-for-trump-and-us-moldova-wants-to-be-bridge-not-battlegroundbetween-east-and-west.html (accessed on 9 June 2017).

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cannot at the same time lower your customs tariffs as per the DCFTA and increase them as a result of the customs-union membership.151

The DCFTA not only ties Moldova’s economic future more closely to the EU, but is a step in further normative convergence with the EU. And States joining Russia’s EAEU will converge with Russia. One can trade with both, one can be friends with both, but it would be difficult to significantly harmonise one’s domestic norms and regulations towards two different points simultaneously. However, Füle also noted that the EU encouraged states in the EaP program to engage with Russia and to cooperate with the Eurasian Customs Union, perhaps as observers. He further stated that the EU must reassure Russia that the EaP “is not at your expense, it is not against you, it is not against your interests […].”152

2. Russian Responses: Sticks and Carrots States are free to form their own alliances. As a matter of international law there is nothing preventing Moldova from pursuing an integration agreement with the EU. However, as a matter of international relations, Russia views such treaties as an intrusion, transforming its own historic buffer States into the EU’s new circle of friends. In 2005, Andrei Kokoshkin, then the chairman of the Russian State Duma Committee on Commonwealth of Independent State Affairs, warned that Moldova may lose its status as a strategic partner if it deepened its ties with the EU.153 At about that time, Russia was purchasing 80% of Moldova’s wine exports and supplying 98% of Moldova’s energy imports.154 In early 2006 Russia banned importation of wine and

151 As quoted in Rikard Jozwiak, Fuele Deplores Russian Pressure On EU's Eastern Neighbors, Radio Free Europe/ Radio Liberty, 11 September 2013, available at: http://www.rferl.org/a/eu-russiathreats-unacceptable/25103235.html (accessed on 9 June 2017). 152

Ibid.

153

Hagemann (note 60), 774.

154

Ibid., 774, citing Spanu for 2006 wine statistics and Larsson for 2006 energy statistics.

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meat from Moldova.155 However, Russia “was careful to justify and explain its new activism in economic and technical terms,” as opposed to geopolitical reasons.156 Russia treated the situation as an either/or choice for Moldova and other DCFTA candidates, in the words of the New York Times: “whispering threats and gripping throats, bluntly telling smaller neighbors that they would be better off joining Russia’s customs union with Kazakhstan and Belarus.”157 In one ominous example, prior to the Russian intervention in Crimea and the subsequent outbreak of fighting in Eastern Ukraine, one of Vladimir Putin’s senior advisers had warned that if Ukraine chose to pursue association with the EU, the Russian minority in Ukraine may choose to secede and that Russia could legally assist the secession.158 Up to that point, there had not been significant concern of violent secessionism in Ukraine. Deputy Prime Minister Rogozin said in May 2014: “I will insist on a revision of our economic relations with Moldova if it decides to associate [with the EU].” He went on: “The former relationship will be over. I am positive that association with the EU will alter the neutral status of Moldova.”159 In part, Russia’s leadership was worried that the Association Agreements would hurt the Russian economy and that “the Russian market could be flooded by cheap goods from the EU that would hit Russian producers.”160 (The Transnistrian separatist leadership, for their part, had stated their intention to accede to Russia’s Customs Union.161)

Russian ends trade ban on Moldova, BBC News, 29 November 2006, available at: http://news. bbc.co.uk/2/hi/europe/6194072.stm (accessed on 2 July, 2017). The ban on wine and meats was lifted in November 2006. But see Woehrel (note 63), 6, which states the ban began in 2005 and ended in 2007. 155

156

Simons (note 32), 80.

David M. Herszenhorn, Russia Putting a Strong Arm on Neighbors, The New York Times, 22 October 2013, available at: http://www.nytimes.com/2013/10/23/world/europe/russia-putting-astrong-arm-on-neighbors.html (accessed on 9 June 2017). 157

158 Ben Hoyle, Russia threatens to back Ukraine split, The Times, 23 September 2013, available at: http://www.thetimes.co.uk/article/russia-threatens-to-back-ukraine-split-tjz257pzzdw (accessed on 9 June 2017). 159 Bucharest’s threats to land Russian govt delegation’s plane deserve harsh response – Russian Deputy PM, Voice of Russia, 12 May 2014, available at: https://sputniknews.com/voiceofrussia/news/ 2014_05_12/Bucharests-threats-to-land-Russian-govt-delegations-plane-deserve-harsh-responseRussian-Deputy-PM-2994/ (accessed on 9 June 2017). 160 Steven Rosenberg, EU signs pacts with Ukraine, Georgia and Moldova, BBC News, 27 June 2014, available at: http://www.bbc.com/news/world-europe-28052645 (accessed on 9 June 2017). 161

Woehrel (note 63), 4.

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But this was secondary to the “geopolitical concerns” spurred by the agreements: the whole idea of former Soviet states, countries that Moscow still views as being within its sphere of influence, drifting towards Europe and one day possibly becoming part of the EU – that really grates with Moscow, particularly in the case of Ukraine.162

Rogozin also argued that association with the EU would be a step towards NATO membership, because, as he put it “There is a certain rule all NATO members are aware of: you have to join NATO before entering into the EU. This rule will not be changed for Moldova.”163 There is no such requirement. In fact, Austria, Cyprus, Ireland, Sweden, Finland, and Malta are all EU Member States without being members of NATO. But this comment showed Russia’s deep-seated strategic concerns. While the EU emphasised the carrot of EU Association – easier trade, visa-free travel, technical assistance, and so on – Russia emphasised the sticks that could be used if Moldova continued with EU integration: trade embargoes and energy problems being the most prevalent. And there were other actions: Hill writes that “Moscow supported anti-Romanian, pro-Russian demonstrations in Baltsi, and encouraged the autonomous region of Gagauzia to hold a February 2014 referendum on independence, should Moldova lose its sovereignty (i.e. join Romania).”164 Russia also seemed to actively support certain candidates in the 2014 parliamentary elections, especially Igor Dodon’s Socialist Party.165 However, Russia’s threatened use of various sticks was in part because its own carrot, the EAEU, did not seem as appealing as the one offered by the EU.166 In 2013 the only members of the nascent EAEU were Russia, Belarus, and Kazakhstan. Armenia and Kyrgyzstan have since become members. The Association Agreements were likely perceived by Russia as impediments to the construction of the EAEU. Compare the chronology leading to Moldova’s Association Agreement with that of Russian attempts at regional integration. Since at least the early 2000’s, Moldova has 162

Rosenberg (note 160).

163

Voice of Russia (note 159).

164

Hill (note 76), 4.

165

Ibid.

It should also be noted, Russia has tried other incentives at various points, such as the offer of decreased energy prices if Moldova agreed to the terms of the Kozak Memorandum. Hagemann (note 60), 774. 166

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not sought membership in Russian-led regimes, but rather focused on association and integration with the EU. In 2003 President Voronin had announced that Moldova would not join the Common Economic Space, Russia’s then-current attempt at regional organisation. Moldova signed its ENP Action Plan in 2005. In 2007, Russia, Belarus, and Kazakhstan announced a customs union. The EU’s EaP began in 2009. Then in 2010, trade policy coordination measures establishing a common external tariff among its members, the basic requirements of the Eurasian Customs Union, came into force. Moldova and Georgia initialled their Association Agreements in November 2013 (and Moldova, Georgia, and Ukraine signed their agreements in June 2014). Russia, Kazakhstan, and Belarus signed a treaty of limited economic union on 29 May 2014.167 The EAEU treaty’s purpose was ostensibly to move from customs union towards the free movement of goods, capital, and people among the member States, but as of this writing it is still a work-in-progress. Besides Ukraine, Moldova, or Georgia not joining the EAEU, the economic logic of the organisation is at best “unclear”.168 Alexander Knobel, the Director of international trade studies at the Gaidar Institute for International Economic Policy in Moscow, explained that “[p]roblems arise because the countries within the union have different technical and sanitation standards for imported products.”169 Rushing towards integration has left many issues unresolved.170 Neil MacFarquhar, Russia and 2 Neighbors Form Economic Union That Has a Ukraine-Size, The New York Times, 29 May 2014, available at: https://www.nytimes.com/2014/05/30/world/ europe/putin-signs-economic-alliance-with-presidents-of-kazakhstan-and-belarus.html?_r=2 (accessed on 9 June 2017). 167

168 Radio Free Europe notes that, at least in 2013–2014, Belarus and Kazakhstan each had declining trade relations with Russia, while Russia and Kazakhstan had increasing trade with the EU. Robert Coalson, Despite Ukraine Crisis, Russia Pursues Eurasian Integration Dream, Radio Free Europe/Radio Liberty, 28 May 2014, available at: http://www.rferl.org/a/russias-eurasian-integration-dream-steamsahead-despite-ukraine-crisis/25401714.html (accessed on 9 June 2017). Moreover, according to the Moscow Times, the EEAU free market will not include energy for the time being. Thus, for example, Belarus “will have to continue paying duties to Moscow on its exports of oil products based on oil imported from Russia, said Julian Cooper, professor of the Centre for Russian and East European Studies at University of Birmingham […]. [Belarus’ President] Lukashenko also was promised that export duties will be eliminated when a single market for energy is created, something not planned until 2025.” Alexander Panin, For Russia, Eurasian Union is About Politics, Not Economy, The Moscow Times, 29 May 2014, available at: https://themoscowtimes.com/articles/for-russia-eurasian-union-isabout-politics-not-economy-35952 (accessed on 9 June 2017). 169

Panin (note 168); see also Coalson (note 168).

170

Panin (note 168).

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However, despite its name, the EAEU may be less about economics than about norms. Radio Free Europe reports: Aleksandr Lukin, deputy director of the Russian Foreign Ministry’s Diplomatic Academy, wrote recently that the [Eurasian Economic Space] is “an independent power center in Eurasia” and that “although economic considerations are important, they are also secondary to a set of values differing from those preached by the West.”171

Rather than careful economic policy-making, signing the EAEU treaty at this time seemed to be about making a political statement. As the EU expanded, and then integrated its neighbours, Russia may have been pursuing a sort of ‘me too multilateralism’, trying to show that the former Soviet space was also uniting economically and tying former Soviet States to Moscow, rather than leaving them to Brussels. Alexander Cooley, a professor of political science and Director of Columbia University’s Harriman Institute, explains that “[i]t is meant to signal that these Western programs and opprobrium are not having an effect on the economy and that Russia is developing into a distinct pole in the multipolar system.”172 The EAEU as a broad normative project may not sit well with potential and current EAEU members concerned about Russian domination.173 There comes a point when normative harmonisation is really about power projection. Mälksoo describes Moscow’s perception as assuming that “smaller peoples” are subject to “competing outside influences and to some extent ‘brainwashed’ by the predominant power(s)” limiting their free will to essentially a choice between “Groβräume”.174 (In my discussion, I focus on the concept of different normative orders.). While some in Transnistria and Russia may view the EaP as a means of the EU extending its normative realm into the Russian ‘Near Abroad’, some current or potential members of the EAEU have expressed concerns about Russian

171

Coalson (note 168).

172

MacFarquhar (note 167).

Iana Dreyer/Nicu Popescu, The Eurasian Customs Union: the economics and the politics, EU Institute for Security Studies Brief No. 11, 21 March 2014, available at http://www.iss.europa.eu/ uploads/media/Brief_11_Eurasian_Union.pdf (accessed on 9 June 2017). Leaders in Kazakhstan, for example, have rejected the notion that the EAEU would authorise Russian influence in Kazakhstan’s foreign policy. The New York Times reports: “‘We are not creating a political organization; we are forming a purely economic union,’ Bakytzhan Sagintayev, the first deputy prime minister and lead negotiator, said in an interview. ‘It is a pragmatic means to get benefits. We don’t meddie into what Russia is doing politically, and they cannot tell us what foreign policy to pursue.’” MacFarquhar (note 167). 173

174

Mälksoo (note 98), 175.

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domination through that treaty regime. In a systemic borderland, legal harmonisation can be a source of conflict. And, of course, ‘legal harmonisation’ is itself a pat phrase. It makes it seem as if contentious politics are replaced by neutral laws that resolve conflicts. But law is not neutral. There is more than one version of the rule of law. The question is actually: whose law rules?175

3. Treaties as Bridges or Treaties as Walls: the Challenge of Foreign Relations in a Systemic Borderland The heart of the matter is whether Moldova will become more fully integrated into European institutions or reintegrate with revamped Russian institutions. At times a State definitively places itself within a particular normative system: some States are clearly part of the EU normative order, while others are in Russia’s. In such cases, normative boundaries coincide with national boundaries. But in other cases, there is significant contestation within the country in question. In Moldova, that is evidenced not only by Transnistrian separatism, but also in the political gridlock on the right bank. Moldova is a borderland between two normative systems, a single State containing aspects of both normative orders.176 This is all the more significant in multi-ethnic, multi-language, and multi-confessional States such as Moldova. This can relate to domestic laws, such as whether a particular conception of civil and political rights will be adopted. It can also concern international legal norms, such as to which treaties a State will become a signatory, which international organisations a State may join, the recognition of national borders, and issues of non-intervention. When normative systems overlap and jostle within a country, the result can be normative friction.177

175

For a longer discussion of this question, see Borgen, Whose Public, Whose Order (note 3).

See Christopher J. Borgen, Russia, Moldova, and the EU: Realpolitik as Normative Competition, Opinio Juris, 23 October 2013, available at: http://opiniojuris.org/2013/10/23/russia-moldova-eurealpolitik-normative-competition/ (accessed on 12 June 2017). 176

177 For further discussion, see Borgen, Whose Public, Whose Order? (note 3); see also Borgen, Russia, Moldova and the EU (note 176).

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Whether Moldova would associate with the EU, or join the EAEU, or whether it could do both, has significant implications in addressing normative friction within this systemic borderland. While this issue may be framed as a question of ideological or economic preferences, the EU’s Füle described attempting to both associate with the EU and join the EAEU as being prevented by “legal impossibilities.”178 This posits a legal question: whether one may or may not reconcile conflicts between these two treaty regimes. In addition to traditional canons of interpretation, Article 30 Vienna Convention on the Law of Treaties (VCLT) codifies certain techniques concerning conflicts between “successive treaties relating to the same subject-matter.”179 Based on Article 30, if Moldova had both signed an Association Agreement with the EU and joined the EAEU, then its responsibilities to EU Member States would be defined by the Association Agreement and to the EAEU Member States by the EAEU treaty. As I have written in the Oxford Handbook on Treaties: The VCLT does, however, acknowledge that this is without prejudice to questions of responsibility that ‘may arise for a State from the conclusion or application of a treaty, the provisions of which are incompatible with its obligations towards another State under another treaty’. The issue thus becomes not a question of conflict resolution, but of the law of responsibility. Otherwise, though, the parties are left to negotiate whatever solution they are able.180

In attempting to bridge differences between the EU and EAEU rules, one technique could be to try to find commonalities by reference to the global system. Sir Robert Jennings, had written that: Universality does not mean uniformity. It does mean, however, that such regional international law, however variant, is part of the system as a whole, and not a separate system, and it ultimately derives its validity from the system as a whole.181

178

Jozwiak (note 151).

Article 30 (1) Vienna Convention on the Laws of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). 179

180 See Christopher J. Borgen, Treaty Conflicts and Normative Fragmentation, in: Duncan B. Hollis (ed.), The Oxford Handbook on Treaties (2012), 462, (footnotes omitted). 181 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (2006), 105 (quoting Robert Jennings).

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Similarly, the EU’s Füle observed that, in Radio Free Europe’s paraphrasing, “EU norms often are adopted internationally and are fully compatible or identical with World Trade Organization rules, which should help everyone, including Russia, to modernize and open up to globalization.”182 While this may be a technique that could assist in bridging some of the differences regarding trade, it does have two potential shortfalls. The first is if either treaty regime requires the Member States to accord each other, and only each other, the best terms of market access. This would likely need to be resolved by the EU, Russia, or both, relaxing any such requirement. Second, attempting to use global rules as a bridge between two regional regimes is not likely to be very helpful in regards to the harmonisation of laws, regulations, and standards. While some in the EAEU argue that it is primarily about trade rules, Russia has described it as a body meant to uphold a certain set of norms. To the extent that it would be difficult for Moldova to harmonise its domestic laws both to the rules set out in the EU Association Agreement and the as-yet ill-defined norms promoted by the EAEU, there is no easy solution beyond hard-bargaining among the interested parties. In the end, the legal question may collapse back into one of political will: do the various parties choose to find interpretational work-arounds and compromises in order to have a borderland country act as a bridge rather than a wall? Without that, the jostling over Moldova between Russia and the EU will remain a geopolitical struggle over norms and laws: regulatory competition, writ large.

V. Identity, Power, Sovereignty, and Law: Complex Intersections in a Systemic Borderland Secessionism, State stabilisation, and foreign relations are inter-related challenges for Moldova. The history of being a multi-ethnic, multi-linguistic, borderland in the midst of ethnically-defined nation-States has pushed and pulled at Moldova since independence. The result has been political instability and both pitched battles over the territory of the State – the 1992 fighting over Transnistria – and figurative battles over the direction of the polity. Moldovan political scientist Botan believes that “ethnolinguistic, ideological, and geopolitical” conflicts “were perceived as more important than fighting corruption and establishing the rule of law” and its domestic in182

Jozwiak (note 151).

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stitutions.183 Thus, secessionism, which has been a factor in the Moldovan polity since the waning days of the USSR, has played a part in stunting domestic political reform. Conversely, endemic corruption and cycles of political dysfunction have played into the arguments of the Transnistrian leadership supporting separation. As these problems are intertwined, so too are the tools we use to address them: international law, domestic law, and political negotiations. This essay considered the role of international institutions in providing norms to address domestic political instability and secessionist conflicts. But, beyond this, it also considered how the diffusion of norms – although meant to be conflict-resolving – may also be exacerbating the conflict. Moldova, facing a set of decisions as to which treaties to join and in which direction to harmonise its laws, is in a difficult position, literally and metaphorically, between the EU and Russia. However, O’Loughlin, Toal, and ChamberlainCreanga, observe: While the habits of great powers and local elites may be to spatialize the world into binary geopolitical categories, the experiences and attitudes of ordinary residents across the region do not affirm such clear and clean divides.184

Another poll found that “the most popular course among Moldovans is to seek good relations with both East and West.”185 Simply put, living on one side or another of a strategically-contested boundary or facing choices concerning membership in different treaty-regimes may not define the viewpoints of people living in these borderlands. They have more immediate concerns. Thorbjorn Jagland explains: Many still look to Brussels for the answer, while others instead believe that prosperity lies with the Eurasian Economic Union, led by Russia. What unites both camps is their palpable resentment toward venal elites. Ask an average Moldovan how life varies under the different parties and you’ll frequently hear that it makes no difference.186

This may posit a way forward based on fostering economic development as a component of conflict resolution. But such approaches are impeded by the geopolitics of ‘either/or’ choices, trade embargos, and energy politics.

183

Botan (note 113).

184

O’Loughlin/Toal/Chamberlain-Creanga (note 5), 255.

185

Hill (note 76), 3.

186

Jagland (note 135).

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OSCE diplomat Kalman Mizsei had warned against letting geopolitics triumph over domestic legality “since pure geopolitical thinking rendered much less attention to holding politicians responsible to serve the interests of the people and to behaving ethically.”187 Rather, addressing domestic legality is part of a smart geopolitical strategy. One implication is the need for a continuing and deepening emphasis on the domestic rule of law. For example, the fight against corruption is one of the issues of particular concern to many voters: it affects their pocketbooks, their daily lives, and their trust in government. Showing that a particular conception of the rule of law is effective in dealing with corruption is a small but important step towards a broader discussion concerning the direction of the State. Other factors include promoting effective institutions of public administration and the support of democratic institutions. Such a bottom-up approach is the converse of making geopolitics the defining factor of all discussions, which is a temptation in a systemic borderland. Perceiving the relationship between supporting the domestic rule of law and conflict resolution is not a magic bullet. There are no magic bullets. This is only one of many parts that may fit together to become a robust solution. Russia remains a critical factor and it is willing to use the sticks of trade embargos and supporting separatists. So, another part of a solution will be engaging Russia. Finally, one should consider the future of the ENP and EaP as means of supporting friendly, stable, neighbours. Perhaps, as Mark Galeotti has argued: if the EU wants to regain its influence and credibility in the country there needs to be both sticks and carrots; a serious sense that EU membership is achievable would offer both. The move towards EU accession has proved effective in Central Europe and is giving both clear guidance as to what could be done, and also an incentive for elites and societies alike to comply.188

But what does the EU’s current strategy of integration – if not a hypothetical future strategy oriented towards possible accession – mean in an era of Brexit, Eurozone crises, and resurgent populism? How much can Europe promise? The turbulence over the Euro and EU budget pressures has made some sceptical about further integration with one or more poorer countries, let alone accession. And, for some, the insecurity 187

Mizsei (note 115).

As quoted by Ana Davila, The Moldovan Awakening, World Policy Blog, 4 December 2015, available at: http://www.worldpolicy.org/blog/2015/12/04/moldovan-awakening (accessed on 12 June 2017). 188

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caused by the Transnistrian situation strikes a further note of caution. Providing clarity as to the EU’s own views concerning the ongoing integration process is important. If Russia is willing to use a stick of trade embargos, the EU need to make clear what carrots it is offering, be it access to the Single Market, ease of working in the EU, and/or other benefits. In addition, this needs to be linked to explaining to the Transnistrians – through both political negotiations and public diplomacy – why their future as part of a Moldovan polity that respects the rule of law and is integrated in the world economy is better than that in an unrecognised enclave. Moldova is a small country with big problems and no easy answers. But there are many parts that may fit together to construct a solution. Some are about law and ‘high politics’, such as continually framing the Transnistrian negotiations within the context of international law: for example, that there is no general ‘right’ to secede. But other parts are about law and ‘low politics’, such implementing effective anti-corruption measures. No single piece is the answer but law is the glue that binds the pieces together into a cohesive whole. It is not a choice between geopolitics or pursuing the rule of law. The rule of law is crucial to an effective strategy for political stability and economic development in Moldova.

Unfreezing and Settling the Conflict over Kosovo ENRICO MILANO

ABSTRACT: Frozen conflicts are normally associated with intractable territorial disputes, in which, despite a relatively peaceful situation on the ground, the underlying contentious issues remain unresolved and the danger of the outbreak or resumption of hostilities remains present. Given the above definition, the sovereignty dispute over Kosovo must be differentiated from the situation in the Serb-inhabited north of the country, only the latter having displayed over the years many of the typical features of frozen conflicts. The present article examines the diplomatic efforts undertaken to settle the Kosovo crisis and ‘unfreeze’ the ethnic conflict in the North, with special attention devoted to the 2013 Brussels Agreement on the normalisation of relations between Serbia and Kosovo. The role of international law rules and principles in this process is taken into consideration. The argument made is that progress in the so-called called ‘EU-facilitated’ dialogue will be decisive in ‘unfreezing’ the conflict in the North and that, in turn, will lead to the final settlement of the Kosovo contention; such progress will be greatly enhanced by legal consistency, political flexibility, and an overall effort towards reconciliation between Serbs and Kosovars. KEYWORDS: Frozen Conflicts, Kosovo, Dispute and Conflict Settlement, Treaty Instrument, International Law, Reconciliation

I. Introduction Frozen conflicts are normally associated with intractable territorial disputes, in which, despite a relatively peaceful situation on the ground, the underlying contentious issues remain unresolved and the danger of the outbreak or resumption of hostilities and armed conflict remains present. The ‘intractable’ nature of the dispute is also normally associated with significant duration in time and the lack of, or limited, involvement of the international community in trying to settle and terminate the conflict. One may recall the frozen conflicts that have arisen out of the collapse of the Soviet Union, including Abkhazia, Nagorno-Karabakh, and South Ossetia. Associate Professor of International Law, University of Verona.

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The picture that emerges from the history of Kosovo in the last 25 years does not entirely fit into the above description. On the one hand, Kosovo has indeed displayed some typical features of frozen conflicts: if we exclude the two years of armed conflict between the Kosovo Liberation Army (KLA) and Serbian security forces, the North Atlantic Treaty Organisation’s (NATO) ensuing intervention and the widespread riots in 2004, the situation, albeit tense, has remained peaceful on the ground; despite the many issues still unresolved between the Serbian government and the KosovoAlbanian leadership. On the other hand, if during the 1990’s and before the outbreak of the civil conflict, Kosovo under Serbian rule displayed all the features of an interethnic conflict contained through repression, after NATO’s military intervention and the establishment of the United Nations (UN) interim administration, the sustained effort of the international community in settling the conflict and the fluidity of the political process (which has led Kosovo to become recognised as a sovereign country by more than 100 States) show a very different pattern as compared to other territorial conflicts in the European continent, especially in the Post-Soviet space. One must not be oblivious to the fact that Kosovo between 1999 and 2007 has received per capita 50 times the number of military personnel deployed and 25 times the aid received by Afghanistan and that the international community, mainly through the European Union, has devolved to Kosovo by far the largest sum per capita ever devolved to a developing country.1 Kosovo can be described as the most extensive and intense effort of State-building ever undertaken by the international community. Where, instead, the patterns typical of a frozen conflict have been displayed in full is Northern Kosovo, which can be qualified ‘a dispute within the dispute’. Northern Kosovo is the area of Kosovo, north of the River Ibar, bordering central Serbia and inhabited by a population estimated at between 40,000 and 50,000 residents, the overwhelming majority of which are Serbs. The population’s recalcitrance to accept any rule other than that of Serbia became clear already in 1999, when the UN deployed an interim administration in the territory of Kosovo in compliance with UN Security Council Resolution (UNSCR) 1244.2 In the years between the deployment of the UN Interim Administration Mission in Kosovo (UNMIK) and Kosovo’s 1 James Dobbins (ed.), America’s Role in Nation-Building, From Germany to Iraq (2003), xvii–xviii; Andrea Capussela, Lo stato dell’economia, in: Laura Pineschi/Alessandro Duce (eds.), La questione del Kosovo nella sua dimensione internazionale: profile storici, economici, politici e giuridici (2011), 73, 74. 2

SC Res. 1244 of 10 June 1999.

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declaration of independence in 2008, Northern Kosovo was run by parallel structures of self-government, organised in four municipalities, financed and fully supported by the Serbian government, with sporadic clashes between the local population and the Kosovo Force (KFOR), the NATO-led security operation operating on the ground under the mandate established by UNSCR 1244. De facto, during those years, Northern Kosovo was neither administered by Serbia, itself unable to enforce the law after the passing of UNSCR 1244 and KFOR’s deployment; nor part of the UN-administered Kosovo, given the local structures’ fierce resistance to any meaningful exercise of authority by the international community. After Kosovo’s declaration of independence in 2008 and despite the consolidation of State institutions in Kosovo, the government in Pristina has had considerable difficulties in asserting authority north of the River Ibar, consolidating the frozen nature of the conflict in those territories. Whereas the two conflicts may be differentiated and distinguished, one has to accept that they are mutually intertwined. Definitively settling the dispute over Kosovo between Kosovo’s government and Serbia’s government requires ‘unfreezing’ the conflict in Northern Kosovo with an overall deal participated by the two latter governments and the local population. In other words, one may reasonably argue that the ‘unfreezing’ of the conflict over Northern Kosovo is the last stumbling block in the settlement of the dispute. It is on the ‘dynamics’ of the two conflicts and disputes that we shall focus in the present article, questioning the role of international law in contributing to their overall settlement and termination or, else, in aggravating and exacerbating them.

II. Settling Kosovo The international involvement in the effort to settle the conflict over the government and sovereignty in Kosovo between Serbia’s central government and the political leaders of the ethnic Albanians of Kosovo has spanned over a period of more than two decades and can be divided in four successive phases. If we exclude the first phase, despite the intractable nature of the dispute, the continuing and sustained involvement of the international community in leading to a political settlement of the Kosovo issue and the fluidity of the situation on the ground do not point to the crystallisation of a frozen conflict.

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The first phase begins with the breakup of the Former Yugoslavia and the creation of new independent republics in its former territory and lasts until the beginning of the internal armed conflict in Kosovo in 1998. During those years, the issue remained essentially an internal matter concerning the treatment of an ethnic minority within the State and the international community limited itself to soft forms of diplomatic intervention, as the Special Group on Kosovo created by the European Economic Community (EC) London Conference in 1992 and the short-lived mission of the Conference for Security and Cooperation in Europe (CSCE) in Kosovo between 1992 and 1993, both focused in particular on the protection of language rights in schools attended by ethnic Albanians.3 Kosovo’s application for recognition to the EC established Badinter Commission was not even taken into consideration, as much as the Federal Republic of Yugoslavia was not asked to seek recognition; Kosovo remained outside the scope of the negotiations concerning peace in Bosnia and Herzegovina, which was sanctioned by the Dayton Agreements.4 As already mentioned, the political and territorial conflict was frozen, with Belgrade able to impose its rule through repressive policies and the creation of rudimentary structures of parallel selfgovernment by the ethnic Albanian leadership. The subsequent phase began with the more robust intervention of the international community in 1998 in conjunction with the outbreak of the internal armed conflict between the Kosovo Liberation Army (KLA) and Serbian security forces. In this period – which lasts until 2008, with the declaration of independence of Kosovo – the international community was actively engaged in seeking to shape the future of the governance over the territory. The harsh repression undertaken by the Milosevic regime, reaching its climax during the period of armed confrontation, and the humanitarian crisis produced by the conflict convinced influential parts of the international community that a solution had to be based on self-government for Kosovo, pending a final settlement, and the exclusion of Belgrade from the government of the province. The most comprehensive attempt to settle the crisis according to a model of transitional self-administration of the province was the plan devised in the Rambouillet Agreements, a deal promoted by the Western countries of the Contact Group (US, Britain, France, Germany, and Italy) and negotiated in February 1999 at 3

Marc Weller, Contested Statehood. Kosovo’s Struggle for Independence (2009), 50.

4

Ibid., 46.

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the peak of the crisis.5 The deal provided for the full withdrawal of Serbian security forces from Kosovo, self-administration of the people of Kosovo with the support of an European Union(EU)/Organization for Peace and Security in Europe (OSCE) civil presence, and NATO’s deployment of a security force in the province (including full freedom of transit throughout the whole of the territory of the Federal Republic of Yugoslavia). Within three years a process on the definition of the final status should have been initiated, with the ‘will of the people’ as a decisive factor in the definition of Kosovo’s future.6 Despite Belgrade’s refusal to accept the agreement, NATO’s military intervention between March and June 19997 forced the Serbian government to accept quite 5 On the Rambouillet Conference see Marc Weller, The Rambouillet Conference on Kosovo, International Affairs (1999), 211; Emmanuel Decaux, La Conférence de Rambouillet: Négociation de la dernière chance ou contrainte illicite, in: Christian Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment (2002), 45. See also Letter of the Federal Republic of Yugoslavia to the Security Council, UN Doc. S/1999/107 (1998). 6 See the letter of the US Secretary of State, Madeleine Albright, of 22 February 1999, to the Delegation of Kosovo: “[t]his letter concerns the formulation (attached) proposed for Chapter 8, Article 1 (3) of the interim Framework Agreement. We will regard this proposal, or any other formulation, of that Article that may be agreed at Rambouillet, as confirming a right for the people of Kosovo to hold a referendum on the final status of Kosovo after three years”, reported in: United Kingdom House of Commons Foreign Affairs Committee Fourth Report, 23 May 2000, para. 60, available at: http://www. publications.parliament.uk/pa/cm199900/cmselect/cmfaff/28/2802.htm (accessed on 19 October 2016). According to Henry Kissinger, “[t]he Rambouillet text, which called on Serbia to admit NATO troops throughout Yugoslavia, was a provocation, an excuse to start bombing. Rambouillet is not a document that an angelic Serb could have accepted. It was a terrible diplomatic document that should never have been presented in that form”, Boris Johnson, Cold War warrior scorns ‘new morality’, Daily Telegraph, 28 June 1999, 34. 7 On the legality of NATO’s military intervention see e.g. Ian Brownlie, Kosovo Crisis Inquiry: Memorandum on the International Law Aspects, International and Comparative Law Quarterly (ICLQ) 49 (2000), 878; Christine Chinkin, The Legality of NATO’s Action in the Former Republic of Yugoslavia (FRY) under International Law, ICLQ 49 (2000), 910; Christopher Greenwood, International Law and the NATO Intervention in Kosovo, ICLQ 49 (2000), 926; Jonathan Charney, Anticipatory Humanitarian Intervention in Kosovo, American Journal of International Law (AJIL) 93 (1999), 834; Richard Falk, Kosovo, World Order, and the Future of International Law, AJIL 93 (1999), 847; Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, European Journal of International Law (EJIL) 10 (1999), 23; Id., A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis, EJIL 10 (1999), 791; Nico Krisch, Unilateral Enforcement of Collective Will: Kosovo, Iraq and the Security Council, Max Planck Yearbook of United Nations Law 3 (1999), 59; Beatrice Mégevand Roggo, After the Kosovo Conflict, a Genuine Humanitarian Space: A Utopian Concept or an Essential Requirement?, International Review of the Red Cross 82 (2000), 31; Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (2001); Daniel Joyner, The Kosovo Inter-

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similar terms, which were formally embodied in UNSCR 1244: pending a final settlement on the question of status of the province, Kosovo was put under UN administration, with a NATO-led security presence fully deployed in the province; Serbia was forced to withdraw its security presence in Kosovo, while self-government of the local population was promoted by the UN. As a result of the implementation of the regime established by UNSCR 1244, and notwithstanding the latter’s ‘ritual’ reaffirmation of Member States’ commitment to the territorial integrity and political independence of Serbia, Kosovo became de facto independent from Belgrade, with its own interim constitutional and legal framework established under the authority of the UN and fully detached from Serbia’s constitutional order.8 It is in this context, characterised by the local population’s increasing impatience towards the status quo culminating in anti-Serbs widespread riots in 2004, that the UN Envoy, Marrti Ahtisaari, after some rounds of unsuccessful bilateral talks, elaborated in 2007 the Comprehensive Proposal for Kosovo Status Settlement (Ahtisaari Plan).9 The Plan provided for the independence of Kosovo under international supervision, in order to adopt and implement international standards concerning decentralisation, the rule of law, the rights of minorities and the protection of Serb religious, and cultural heritage in Kosovo. The UN was to be replaced by a new international civil presence that of the International Civilian Representative, to be appointed and guided by a number of international stakeholders gathered in the International Steering Group. A European Security and Defence Policy operation also had to be deployed in order to foster the rule of law in the country, while a NATO security presence would remain on the ground, especially with a view to protecting Serb religious sites. The Plan proved unacceptable to Belgrade – which was ready to come to terms with anything less than independence, but not independence – and the attempt to have it endorsed by the UN Security Council failed in July 2007.10

vention: Legal Analysis and a More Persuasive Paradigm, EJIL 13 (2002), 597; Enrico Milano, Security Council Action in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status, EJIL 14 (2003), 999. United Nations Mission in Kosovo (UNMIK), Constitutional Framework for Provisional SelfGovernment in Kosovo, UNMIK/REG/2001/9 (2001). 8

9 UNSC, Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S/2007/168/add.1 (2007). 10

Weller (note 3), 222.

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The third phase is that following Kosovo’s declaration of independence, issued in February 2008. Having failed the attempt to reach independence from Belgrade by virtue of an agreement on the basis of the Ahtisaari Plan, Kosovo’s authorities, as supported by influential sectors of the international community, unilaterally defined Kosovo’s status as a sovereign and independent country.11 Despite the ensuing acts of recognition by numerous States, the support granted to the new Kosovan authorities through the Athisaari based International Steering Group and the effectiveness of the new independent Kosovan government over the territory of the former province, except the northern part, the international community remained divided over the question of final status, with the UN Security Council unable to act and division even reaching the EU (with five countries opposed to the recognition of Kosovo). Lacking UN backing and as a result of Belgrade’s continuing stiff opposition to independence, between 2008 and 2012 Kosovo was part of a sui generis international regime, based on a modified form of the Ahtisaari Plan, with the relationship of dependence from the International Steering Group and the International Civilian Office formalised in the unilateral undertaking expressed in the last paragraph of the declaration of independence and in the transitional provisions of the new Constitution enacted in June 2008.12 Independence in the sense of international law was only achieved with the termination of the Ahtisaari supervision in September 2012.13 The advisory proceedings before the International Court of Justice (ICJ), which took place between 2008 and 2010 upon a diplomatic initiative of the Serbian government within the General Assembly of the UN (UNGA), did not contribute to the Kosovo Declaration of Independence, Pristina, 17 February 2008, available at: http://www. assembly-kosova.org/?cid=2,128,1635 (accessed on 15 October 2016). 11

12 Ibid., para. 12; Constitution of the Republic of Kosovo (Kushtetuta e Kosovës), 15 June 2008, Official Gazette of the Republic of Kosovo, Arts. 143, 146 and 147. See Enrico Milano, Formazione dello Stato e State-Building nel diritto internazionale. Kosovo 1999–2013 (2013). 13 See Communique, Sixteenth and Final Meeting of the International Steering Group for Kosovo, Pristina (10 September 2012), available at: http://www.ico-kos.org/f/pdf/COMMUNIQUE16thISGEng.pdf (accessed on 20 June 2016): “[f]ollowing its judgement on 2nd July 2012 that the Comprehensive Proposal for the Kosovo Status Settlement (CSP) had been substantially implemented, and noting that consistent with their commitments the Kosovo institutions have now passed packages of amendments to the Constitution and to primary legislation satisfactorily capturing the remaining elements of the CSP within the Kosovo Constitutional and legal framework, the International Steering Group today declares the end of the supervision of Kosovo’s independence, and the end of the mandate of the International Civilian Representative. […] With immediate effect, the CSP no longer exists as a separate and superior legal power, and the Constitution of the Republic of Kosovo now constitutes the sole basis for the country’s legal framework”.

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settlement of the dispute, as they were, in the first place, the result of an attempt by the Serbian government to have the Court reaffirm Serbia’s territorial integrity and the illegality of the declaration of independence, rather than being instrumental to the settlement of the question of final status.14 Whereas the Court’s ruling was disappointing in many respects, especially due to the evasion of all major issues of general international law, including the relationship between self-determination and territorial integrity in the post-colonial context, its conclusion that the declaration of independence was not in violation of international law certainly supported the process of State-building in Kosovo, in that it facilitated the accession of the country to several international fora and organisations and led to a slow, but steady, increase in the number of international recognitions.15 It also led the Serbian government to shift to a position of substantial acceptance of the fait accompli, while formally maintaining 14 International Court of Justice (ICJ), Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403. For the debate surrounding the Kosovo Advisory Opinion see Theodore Christakis, The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?, Leiden Journal of International Law (LJIL) 24 (2011), 73; Elena Cirković, An Analysis of the ICJ Advisory Opinion on Kosovo’s Unilateral Declaration of Independence, German Law Journal 11 (2010), 895; Olivier Corten, Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law, LJIL 24 (2011), 87; Andrea Gattini, “You Say You’ll Change the Constitution”. The ICJ and Non-State Entities in the Kosovo Advisory Opinion, in: Peter Hilpold (ed.), Kosovo and International Law. The ICJ’s Advisory Opinion of 22 July 2010 (2012), 233; Hurst Hannum, The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?, LJIL 24 (2011), 155; Dov Jacobs, Yannick Radi, Waiting for Godot: An Analysis of the Advisory Opinion on Kosovo, LJIL 24 (2011), 331; Marcelo Kohen, Katherine Del Mar, The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law’?, LJIL 24 (2011), 109; Marko Milanovic/Michael Woods (eds.), The Law and Politics of the Kosovo Advisory Opinion (2015); Kerstin Odendahl, The Scope of Application of the Principle of Territorial Integrity, German Yearbook of International Law (GYIL) 54 (2010), 511; Anne Peters, Does Kosovo Lie in the Lotus-Land of Freedom?, LJIL 24 (2011), 95; Antonello Tancredi, Some Remarks on the Relationship between Secession and General International Law in the Light of the ICJ’s Kosovo Advisory Opinion, in: Peter Hilpold (ed.), Kosovo and International Law. The ICJ’s Advisory Opinion of 22 July 2010 (2012), 79; Jure Vidmar, The Kosovo Advisory Opinion Scrutinized, LJIL 24 (2011), 355; Chiara Vitucci, Kosovo’s Statehood Beyond the ICJ’s Advisory Opinion, in: Maurizio Arcari/Louis Balmond (eds.), Questions de droit international autour de l’avis consultatif de la Cour internationale de justice sur le Kosovo – International Law Issues Arising from the International Court of Justice Advisory Opinion on Kosovo (2011), 191; Marc Weller, Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion?, LJIL 24 (2011), 127.

See ICJ, Advisory Opinion (note 14), 454 (Declaration of Vice-President Tomka), 467 (Dissenting opinion of Judge Koroma), 478 (Declaration of Judge Simma). After the issuing of the ICJ advisory opinion, Kosovo has gained 37 recognitions by other States and it has obtained membership in the European Bank for Reconstruction and Development, the Development Bank of the Council of Europe and the International Olympic Committee. 15

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its formal claim to Kosovo and negotiating over the rights of the Serb minority in Kosovo as a way to foster the accession process in the EU, but the same time renouncing to set the clock back and trying to reassert sovereignty over its former province. The fourth phase has been indeed initiated by UN General Assembly Resolution (UNGAR) 298 adopted in September 2010, whereby the UNGA has “acknowledge[d] the content of the advisory opinion” and “welcome[d] the readiness of the European Union to facilitate a process of dialogue between the parties”.16 The so-called “EU-facilitated dialogue”, which is led by the EU High Representative for Foreign Affairs, is instrumental to paving the way for the accession of both Serbia and Kosovo to the EU and reaching compromises on a number of outstanding thorny issues in the bilateral relations between Belgrade and Pristina, the most prominent being that of the Serb population living in Northern Kosovo. As already mentioned the situation in the north of Kosovo has shown many typical features of a frozen conflict. It is from the ‘unfreezing’ of that situation that the overall settlement of the political conflict and the legal dispute depends. We now turn our attention to the progress made in this latter respect.

III. The ‘Frozen’ Conflict over Northern Kosovo Throughout the period of the UN administration, Northern Kosovo was run by local, parallel structures of self-government, with the UN unable to extend their administration over the area. Tensions in Northern Kosovo flared again in 2008, when the authorities of Kosovo declared independence from Serbia, and in 2011 when Kosovo’s special forces unsuccessfully sought to take control of the border crossings between Serbia proper and Kosovo, meeting armed resistance from local groups and leading to one casualty among Kosovo’s police.17 Subsequently, as a result of the so-called ‘EU-facilitated dialogue’ between Pristina and Belgrade, several important agreements were concluded between Serbia and Kosovo, including on freedom of 16 Request for an Advisory Opinion of the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo is in Accordance with International law, GA Res. 64/298 of 9 September 2010. 17 See Letter from the Ministry of Foreign Affairs of the Republic of Serbia Vuk Jeremic to the Secretary-General of the United Nations, 29 July 2011, available at: http://www.un.int/serbia/Statements/ 101.pdf (accessed on 20 June 2016).

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movement and joint border management, with the agreements mainly aimed at settling the question of northern Kosovo as a prerequisite for the final settlement of the dispute over sovereignty in Kosovo.18 Undoubtedly the most important of them has been the First Agreement of Principles on Normalisation of Relations initialled in Brussels (BA) on 19 April 2013 by the then-Prime Minister of Serbia Ivica Dačić and the Prime Minister of Kosovo Hashim Thaçi, which is ultimately aimed at establishing Pristina’s authority north of the River Ibar by providing for the integration of the municipalities, of the local police and of the judiciary in Kosovo’s national legal order and institutional structures.19 And yet the population’s stiff opposition to any extension of authority by the government of Kosovo has apparently remained unscathed: in a vote organised by the community of the Serbian municipalities in 2012, 99% of the population expressed its desire to remain part of Serbia, with a turnout of about 75% of eligible voters.20 Noteworthy is the fact that the first local elections under the laws of Kosovo were held in November 2013 and that new municipalities were formed as a result: though again the turnout was far from impressive (about 20 per cent) and the elections had to be repeated due to a number of violent incidents at polling stations.21 The above outlined sets out the factual and political context in which a potentially intractable conflict emerged and was consolidated. On the one hand, a former province Supra, note 16; Agreed Conclusions on Integrated Border Management, 2 December 2011, available at: http://www.srbija.gov.rs/kosovo-metohija/index.php?id=82315 (accessed on 20 June 2016). 18

19 First Agreement of Principles Governing the Normalization of Relations (First Agreement of Principles), 19 April 2013. The text of the First Agreement of Principles is attached to the law of ratification passed by the Parliament of Kosovo in June 2013. See Law on Ratification of the First International Agreement of Principles Governing the Normalization of Relations between the Republic of Kosovo and the Republic of Serbia, 27 June 2013, Official Gazette of the Republic of Kosovo Law 04/L-199, available at: http://www.kuvendikosoves.org/common/docs/ligjet/Law%20on%20ratification%20of%20 agreement%20-normalization%20of%20relations%20between%20Kosovo%20and%20Serbia.pdf (accessed on 20 June 2016). A copy of the original text signed by the EU High Representative and the Prime Minister of Serbia is available at: http://euobserver.com/media/src/0807580ad8281aefa2a89e38 c49689f9.pdf (accessed on 20 June 2016). 20 In the referendum organised by the local municipal authorities and held on 14 and 15 February 2012, 99.74% of voters declared their opposition to the integration of the municipalities in the rest of Kosovo. See International Civilian Office (ILO), State Building and Exit: The International Civilian Office and Kosovo’s Supervised Independence 2008–2012, December 2012, available at: http:// www.ico-kos.org/f/pdf/StateBuildingandExit-LargeFile.pdf (accessed on 20 June 2016), 103–104. 21 Rosa Balfour/Alice Pappas, Kosovo’s Local Elections and the Way Ahead, European Union Institute for Security Studies – Alert 41 (2013), available at: http://www.iss.europa.eu/uploads/media/ Alert_41_Kosovo.pdf (accessed on 20 June 2016).

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controversially, and yet effectively, achieved independence with the active support of influential sectors in the international community; on the other hand, part of the province, bordering the parent State, was strongly opposed to becoming part of the secession process and, ultimately, to accepting the authority of the seceded government. For a long time, the law – and in particular international law – has been considered by many as ‘part of the problem’, rather than ‘part of the solution’, as it has become, at best, the terrain on which conflicting claims based on territorial integrity and, alternatively, self-determination have been construed. The BA has constituted a turning point in the above dynamics, as it apparently represents the first attempt to anchor the political process in a legal instrument. In the following sections, we will evaluate its content and legal nature and assess its immediate and long-term consequences on the dispute over northern Kosovo, in particular, and, in general, on the prospects of a comprehensive settlement of the dispute over Kosovo.

IV. Nature and Content of the Brussels Agreement The title of the BA rightly indicates its programmatic, non-self-executing nature: it is an ‘agreement of principles’. The principles spelled out in the agreement are that an Association/Community of Serb municipalities will be formed,22 that the judiciary and the police will be incorporated into Kosovo’s national legal and institutional structures,23 that municipal elections will be held under the laws of Kosovo and new municipalities will be formed accordingly,24 and that neither side will hinder or block the other’s path towards the EU.25 Clearly, the agreement is a framework instrument requiring further measures for implementation. And yet a preliminary question arises when we examine the BA from the perspective of international law: is it really a legal instrument? Undoubtedly, the BA is a strange ‘creature’. It is made of two separate texts, of equal content, initialled by the EU High Representative for Foreign Affairs Catherine Ashton and, respectively, the Prime Ministers of Serbia and of Kosovo. Kosovo and Serbia are designed in the agreement as ‘sides’, 22

First Agreement of Principles (note 19), paras. 1–3.

23

Ibid., paras. 7 and 10.

24

Ibid., para. 11.

25

Ibid., para. 14.

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not as ‘parties’, as the two ‘parties’ to each instrument are Serbia and the EU, and Kosovo and the EU, respectively. That is clearly shown in the statement added in handwriting beneath the Serbia-EU text by Prime Minister Dačić, where he declares that “[…] this is the text proposal on whose acceptance or refusal both sides shall submit their respective decisions”.26 The decisions to accept the bilateral commitments spelled out in the agreement materialised, in the case of Kosovo, with the ratification of the BA by the Parliament on 27 June 2013, arguably, in the case of Serbia, with the Decision of the Cabinet adopted on 22 April 2013.27 On that score, two possible technical, preliminary interpretations over the nature of the BA are possible, on the assumption that the BA is indeed a treaty governed by international law: a ‘substantive’ interpretation is that the BA is in effect equal to one agreement concluded by Serbia and Kosovo through an exchange of notes of identical content;28 in the alternative, a more ‘formalistic’ interpretation is that the BA is made of two separate agreements concluded by the two sides with the EU, with the bilateral effect of the commitments undertaken in the agreement ensured through non-party acceptance in conformity with Article 34 Vienna Convention on the Law of Treaties (VCLT)29.30 However, the assumption that the BA is a legal instrument producing international legal obligations for Serbia was challenged by Serbia’s Constitutional Court (the Court)

26

Ibid.

Law on Ratification of the First International Agreement of Principles (note 19); Decision of the Cabinet of Serbia, 05 no. 02-3570/2013, 22 April 2013 (reproduced in Official Gazette of the Republic of Serbia, n. 13/2015, 2 February 2015, 11). 27

28 A treaty can also be constituted of a double exchange of letters or notes, as the decision of the International Court of Justice in Qatar/Bahrain shows, see ICJ, Case Concerning Maritime Delimitation and Certain Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 1 July 1994, ICJ Reports 1994, 112, para. 17; in that instance, the two States had exchanged identical letters with a third mediating party, Saudi Arabia, proposing certain settlement procedures, including referral of the dispute to the International Court of Justice. According to Aust, “[t]his complicated scheme was necessary because of political sensitivities, and the text of each letter and of the announcement had been agreed in advance with Saudi Arabia by Qatar and Bahrain; and, thus, although three states were involved, there were in fact only two parties, Qatar and Bahrain”; Anthony Aust, Modern Treaty Law and Practice (2014), 19. 29

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331(VCLT).

According to Art. 34 VCLT, “[a]n obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing”. 30

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in a decision rendered on 10 December 2014.31 The Court rejected a referral made by a group of Serbia’s members of parliament (MPs) seeking a declaration of the BA’s unconstitutionality. According to those MPs, the agreement would constitute a form of de jure recognition of Kosovo’s Statehood and independence and, to that extent; it would be in breach of Article 182 (2) Serbian Constitution, which provides for the autonomy of the province of Kosovo and Metohija to be regulated by special constitutional legislation.32 After an extensive analysis, the Court reached the conclusion that the BA is a political compact only, having no legal relevance and effect in Serbia’s legal order and, to that extent, it cannot be reviewed by the Court, which, according to Article 167 Serbian Constitution, can only review legal acts.33 More specifically, according to the Court, the agreement is not a treaty in accordance with the definition given by the VCLT, as Kosovo is not a sovereign entity having jus contrahendi, and Serbia has consistently protested its unilateral separation and has never recognised Kosovo as a new State. The ICJ Advisory Opinion rendered on 22 July 2010 is legally untenable and, in any case, Kosovo’s recognition by numerous countries produces effects in bilateral relations between Kosovo and those countries only. While implied recognition is indeed possible when an unambiguous intention to that effect is established – and the 1996 agreements of the Federal Republic of Yugoslavia on normalisation of relations with Croatia and cooperation with Macedonia, according to the Court, are two examples of that possibility – the BA cannot be considered a form of implied recognition of Kosovo’s independence, as no indication of the ‘Republic of Kosovo’ can be found in the text of the agreement, and the negotiating mandate approved by the Parliament on 13 January 2013 specifically stated that such negotiations and the results thereof should not be construed as recognition of the unilateral declaration of independence.34 The Court also notes that the BA has not been sent to the UN Secretariat for registration in accordance with Article 102 UN Charter.35 The Court finally points to the fact that the ordinary pro31 Decision 247/2013 was issued on 10 December 2014 and published on 2 February 2015, see Official Gazette of the Republic of Serbia, n. 13/2015, 2 February 2015, 9. 32 Constitution of the Republic of Serbia, Official Gazette of the Republic of Serbia, n. 98/2006, 30 September 2006. 33

Ibid.

34

Ibid.

35

Ibid.

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cedures required for the implementation of international treaties in Serbia’s legal order were not followed, and that further substantiates the conclusion that the agreement is not an international treaty, but a political compact only.36 The Court’s conclusions and arguments make perfect sense from the perspective of Serbia’s legal order, of which the Court represents the supreme guardian. The Court seems less concerned with showing deference to its executive on matters of international relations or, conversely, with reprimanding the executive for its blatant disregard for domestic procedures of treaty incorporation than with reaffirming Kosovo’s territorial status within the province of Serbia’s constitutional order, hence the legal impossibility of entering into an international treaty with the authorities of a territory that is still under Serbia’s sovereignty. The possibility of the BA being an international treaty concluded in simplified form is not even taken into consideration by the Court. According to Serbia’s domestic law, the BA is indeed merely a political compact between the national government and the authorities of a self-proclaimed entity that claims sovereignty over Serbian territory. Not surprisingly, the perspective of Kosovo’s legal order is the opposite. In a decision issued in December 2013 on a request for review filed by a number of MPs opposed to the conclusion and ratification of the BA, the Constitutional Court of Kosovo does not even evoke the possibility that the BA may not have a legal character; it comes to the controversial conclusion that, from the perspective of Kosovo’s legal system, the agreement, which has been ratified in full compliance with the constitutional procedure provided under the Constitution of Kosovo, is in substance not reviewable exactly because it constitutes an international treaty and the Constitution does not expressly confer such competence to the Court.37

Ibid. The decision included four dissenting opinions (Judges Stojanović, Nenadić, Vučić, Manojlović Andrić), all disputing the conclusion reached by the Court as to the political nature of the challenged act. 36

37 Constitutional Court of the Republic of Kosovo, Constitutional Review of the Law, No. 04/L-199, on Ratification of the First International Agreement of Principles Governing the Normalization of Relations between the Republic of Kosovo and the Republic of Serbia and the Implementation Plan of this Agreement, Judgment of 9 September 2013, Case No. KO 95/13, available at: http://www.gjk-ks.org/repository/docs/ gjkk_ko_95_13_ang.pdf (accessed on 20 June 2016). For a critical view of the case law of the Court concerning the most politically charged issues, including the BA, see Andrea Capussela, A Critique of Kosovo’s Internationalized Constitutional Court, European Diversity and Autonomy Paper 2 (2014), available at: http://www.eurac.edu/it/research/autonomies/minrig/publications/Pages/publicationdetails.aspx? pubId=0102585&pubType=E (accessed on 20 June 2016).

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However, from the perspective of international law, neither of the two opposite conclusions is entirely convincing. To be sure, the informal procedure through which the agreement was concluded, the programmatic and generic language often employed, the recurrent use of ‘will’ in the text, the lack of registration at the UN Secretariat are all elements pointing to the political nature of the agreement. On the other hand, as noted in one of the dissenting opinions to the decision of the Serbian Constitutional Court,38 the BA also contains mandatory language for the two ‘sides’ that is typical of international treaties: as for Kosovo, ‘shall’, instead of ‘will’, is employed for the veto power of the participation of the Serb municipalities in the dissolution of the Association/Community of Serb municipalities, for the latter representative role to the central authorities, for the Serb command of the regional police, including the procedure of appointment; whereas for Serbia, mandatory language is employed with regard to the integration of local police in the national police of Kosovo and with regard to the organisation of local elections “in accordance with Kosovo law and international standards”. Also resort to the verbal expression ‘[i]t is agreed’ with regard to the mutual commitment to refrain from blocking each other’s progress on the path to EU accession is indicative of something more than a mere political understanding. Moreover, Serbia’s Cabinet, in endorsing the BA three days after its conclusion, ordered the relevant ministries to undertake all necessary measures to implement the agreement;39 the language employed seems to indicate that the government felt legally bound to give effect to what had been initialled in Brussels. Finally, differently from what the Court held, it is submitted that Kosovo, since the termination of its international supervision in September 2012 and the deletion of the transitional constitutional provisions on the recognition of the Ahtisaari Plan as a superior legal source, displays all the essential features of Statehood under international law, namely an effective and independent authority over a population and a defined territory, and it is endowed with treaty-making capacity; that without prejudice to Serbia’s claim to territorial integrity.40 38

See, in particular, the dissenting opinion of Judge Stojanović, supra, note 31.

39

Decision of the Cabinet of Serbia, supra, note 27.

UNSC (note 9); Communique, Sixteenth and Final Meeting of the International Steering Group for Kosovo, Pristina (10 September 2012), cited in International Civilian Office, State-Building and Exit. The International Civilian Office and Kosovo’s Supervised Independence 2008–2012,135–136, available at: https://dgap.org/sites/default/files/article_downloads/state_building_and_exit_-_reduced file.pdf (accessed on 20 April 2017). See also Milano (note 12). 40

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The crux of the matter is that the BA is replete with constructive ambiguity not only in form, but also in substance. Such ambiguity was probably devised to afford diverging interpretations of its provisions and nature. Take, for instance, the question of the Association/Community of Serb municipalities, which was considered controversial in Kosovo’s political debate, as it would add a further guarantee to the Serb minority beyond what was already envisaged in the Ahtisaari Plan. The term ‘Association’ was chosen to accommodate the requests made by Kosovo, which had been very vocal in claiming that the ‘Association’ should be nothing more than a legal entity established under private law; whereas the term ‘Community’ was instead the result of Serbia’s requests, which aimed at a fully-fledged public law status for the ‘Community’. More importantly, the third sentence of paragraph 2 BA States: “Legal guarantees will be provided by applicable law and constitutional law (including the 2/3 majority rule)”.41 One would expect that ‘legal guarantees’ would be provided under the law of Kosovo, given that the main objective of the agreement is to integrate the north into the rest of the country, while ensuring that the rights of the Serb minority are not threatened. And yet, it is arguable that the reference to ‘constitutional law’ refers to Serbian constitutional law, i.e., a special piece of legislation that is enacted in the procedure envisaged for amendments of the Constitution. This interpretation is in line with Article 205 Serbian Constitution, which provides for constitutional laws and the two-thirds majority requirement for their adoption. It is also in line with Article 182(2) Serbia’s Constitution, which provides that the substantial autonomy of Kosovo and Metohija shall be regulated by constitutional law. It is based on the identity between ‘constitutional law’ and the ‘2/3 majority’ in the BA, and ‘constitutional law’ and the two-thirds majority requirement in Articles 182 and 205 Serbian Constitution, coupled with the fact that Kosovo’s constitutional system does not recognise, or have, constitutional laws as such. In other words, the BA seems to recognise the possibility for Serbia to construe its provisions on the Association/Community of Serb Municipalities in order to provide for legal protection under its domestic legal system; this provision seems to devise a system of ‘dual sovereignty’ over parts of Kosovo, which is analogous to a traditional form of condominium, an institution not unknown to international law.42 On the other hand, if that is the correct interpretation of the provision, namely that constitutional 41

First Agreement of Principles, supra, note 19.

ICJ, Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening), Judgment of 11 September 1992, ICJ Reports 1992, 351, paras. 398–409. 42

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guarantees will be provided under Serbian constitutional law, the BA does not envisage a commitment, not even political, by Kosovo’s authorities to guarantee a special status, let alone a constitutionally guaranteed status, for the Serb communities of Kosovo beyond what has already been put in place with the domestic legislation implementing the Ahtisaari Plan. A political commitment by the government of Kosovo to guarantee a special status for the Association/Community of Serb Municipalities can instead be clearly found in the recent agreement on implementation of the BA reached in Brussels with the Serbian government on 25 August 2015, in which the status, powers and competencies of the Association/Community are spelled out.43 But the exclusively political nature of the agreement and of the commitments contained therein is not in doubt, and the clause that legal provision for its constitution will be established by a “decree directly applicable, which will be reviewed by the Constitutional Court [of Kosovo]”, and not by legislation or constitutional amendment, leaves the process of implementation still fraught with legal uncertainty. In sum, we agree with Serbia’s Constitutional Court that the BA is indeed a political deal, not an international treaty instrument governed by international law. The EU’s statement in the Negotiating Framework for the Accession of Serbia adopted in January 2014 that the process of the comprehensive normalisation of relations between Kosovo and Serbia should ultimately lead to ‘a legally binding agreement’ seems to confirm that the EU also does not consider the BA a treaty instrument.44 However, what went unnoticed in the analysis of the Court were the unilateral undertakings clearly expressed by the ‘sides’ in the agreement, accepted by the other side, and guaranteed by the EU’s participation in the process through the initialling of the two documents. Those undertakings are a source of international legal obligations as a result 43 The unofficial text of the agreement is available at: http://eeas.europa.eu/statements-eeas/docs/ 150825_02_association-community-of-serb-majority-municipalities-in-kosovo-general-principles-mainelements_en.pdf (accessed on 20 September 2016). The agreement specifies that the Statute of the Association/Community will be prepared by the ‘Management Team’ and approved by the High Level Dialogue; it will then be “endorsed by decree upon agreement in the Dialogue”. The Association/ Community will be endowed with an Assembly, a Council, a President, a Board and its own administration. It will have legal capacity, including the possibility of bringing proceedings before local courts and Kosovo’s Constitutional Court. Two further deals have been signed by the two governments, namely on energy and telecommunication and on the opening of the bridge in Mitrovica. 44 Ministerial Meeting Opening the Intergovernmental Conference on the Accession of Serbia to the European Union, General EU Position, 21 January 2014, para. 12, available at: http://www.seio.gov. rs/upload/documents/pristupni_pregovori/neg_frame.PDF (accessed on 20 June 2016).

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of the application of the principles of good faith and estoppel, regardless of the nature of the instrument, in the context of which they were expressed.45 The steps taken by the government of Serbia through decrees to dissolve the four municipalities in the north of Kosovo and to remove police officers from the north are further evidence that the government felt bound by the undertakings undersigned with the BA.46 Ultimately, the effects may have been tantamount to the conclusion of the treaty, but it was political flexibility and constructive ambiguity that the governments sought, especially for their respective local constituencies, and it is doubtful that a formal treaty instrument could have achieved them.

V. The Brussels Agreement’s Legal Consequences on the Question of Status and its Contribution to the Settlement of the Conflict Without entering into a discussion of the merits of the international law arguments employed by the Serbian government in Belgrade and by the government of Kosovo in Pristina in order to support their positions over questions of status, invocation of territorial integrity has been seen by many observers as a zero-sum game for Northern Kosovo. On the one hand, Serbia has argued that self-determination in its external meaning would not apply to Kosovo, that its territorial integrity should be respected and that, even conceding to a process of factual separation of Kosovo from Serbia, the choice of the local population in the north should be respected; on the other hand, the government in Pristina has invoked its right to territorial integrity, in its former provincial borders, as established by the Ahtisaari Plan and by the application of the principle of uti possidetis, with no recognition of the right of the population of the north to separate from the new country or even require autonomy within the State. Hence, Northern Kosovo was caught in a conundrum, in a zero-sum game of conflicting claims. For several years, Northern Kosovo has been characterised as an emerging ‘frozen conflict’ and a ‘legal vacuum’.

With regard to political instruments, such as memoranda of understanding, producing legal effects on the basis of unilateral legal undertakings, see Aust (note 28), 50–52. 45

46

See dissenting opinion of Judge Stojanović, supra, note 31.

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Apart from the question of progress on single specific issues, it is submitted that the BA will be a decisive part of the solution in the settlement of the dispute over Kosovo, and Northern Kosovo in particular, if it paves the way for a settlement of all underlying issues concerning the applicability of general principles of international law, namely territorial integrity, self-determination and uti possidetis. If a technocratic approach is indefinitely prioritised over the territorial, political dimension of the situation especially in Northern Kosovo, the agreement may turn into a constitutive element of the problem rather than an important bit of the solution. The glass, so far, is half full. First, the agreement temporarily settles the matter of competing claims to the violation of territorial integrity, as on the Serbian side, it may be considered a form of consent to the exercise of lawful authority by the government in Kosovo, also in the Serb-inhabited north of its province, and, to that extent, it is a circumstance precluding wrongfulness in accordance with Article 20 International Law Commission Articles on State responsibility,47 even maintaining a sovereign claim to Kosovo;48 on the Kosovan side, it sees the cessation of activities by Belgrade aimed at supporting the parallel structures of self-government that have been seen by Pristina as undermining its territorial integrity and the acceptance by Belgrade that those structures shall be integrated into Kosovo’s national institutions and legal order. Second, if the agreement is fully implemented in practice, despite Serbia’s Constitutional Court claim to the contrary, it could be considered a form of implied recognition by Belgrade of Kosovo’s separation by Serbia and of its Statehood and, ultimately, represent the “political settlement” that was already envisaged by UNSCR 1244 back in 1999 and which is still in force.49 Express recognition and the opening of diplomatic relations would then probably become a matter of time, but they are not a precondition for a settlement. Note also that such a solution would not be irreconcilable with a modus vivendi in which Belgrade continues to maintain legal and political links with the Serb municipalities in Kosovo, as the provisions on legal

47 Responsibility of States for Internationally Wrongful Acts, 12 December 2001, GA Res. 56/83 (ILC Articles on State Responsibility). 48 UNGA, International Law Commission, Articles on State Responsibility with Commentary, Report of the Fifty-third Session, UN Doc. A/56/10 (2001), 72–74. 49

SC Res. 1244 of 10 June 1999, para. 11.

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guarantees of the Community of Serb municipalities inserted in the BA seem to envisage. Third, the agreement, by setting the spatial frame of legitimate authority within the provincial borders of Kosovo, may be seen also as an ex post facto application of the principle of uti possidetis in a situation in which the uti possidetis principle acted ‘procedurally’ ex ante as a limit on the territorial claims of the seceding entity, but not as a device of automatic crystallisation of international borders at the critical date of independence (in our view September 2012, when the international community ended its international supervision), as had occurred in the 1990s with the break-up of the former Yugoslavia. Whereas the uti possidetis principle surely transforms internal boundaries into international boundaries in processes of dissolution of federal States, State practice related to its application to cases of unilateral secession, as in the case of Kosovo, is far from clear and extensive, and the principle of effectiveness still dictates the scope of sovereign authority as recognised and protected by international law.50 What is sure is that the BA consensually sorts out the problem of the application of the principle in Kosovo by paving the way for the integration of Northern Kosovo in the rest of the country. The respect in which, on the other hand, the BA and the process of its implementation have been less effective, to say the least, concerns the principle of self-determination. If self-determination is meant as a normative entitlement to separation from the State accruing upon a people, we can easily find a consensus about the fact that the Serbs in Northern Kosovo do not represent a people for the purpose of international law, as the ethnic Albanians of Kosovo did not represent a people entitled to secession. We may also find a consensus that, even conceding the emergence of a right to remedial secession in international law – a concession we are reluctant to make – that such right does not apply to the Serbs in the north, as it arguably did not apply to the ethnicAlbanian majority in the rest of Kosovo.51 Where, however, self-determination as a John Dugard, The Secession of States and Their Recognition in the Wake of Kosovo, Recueil des Cours (RdC) 357 (2011), 9, 106–107. 50

51 Dietrich Murswiek, The Issue of a Right of Secession – Reconsidered, in: Christian Tomuschat (ed.), Modern Law of Self-Determination (1993), 21; Lee Buchheit, Secession: The Legitimacy of SelfDetermination (1978). The right to remedial secession for the people of Kosovo was argued by 13 States appeared before the ICJ in the 2008–2010 advisory proceedings. See ICJ, Advisory Opinion (note 14); Written statement of Germany, 13 April 2009, 34; Written comments of Switzerland, 17 July 2009, paras. 57–97; Written statement of Estonia, 13 April 2009, 4–12; Written statement of Albania,

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general principle of international law comes into play is its emergence as a legal principle regulating the processes by which territorial changes are achieved, which must reflect the general and free will of the people of the interested territory, ideally expressed through a referendum ensuring a free manifestation of such will. This is a dimension of self-determination that has been discussed by some authors in the literature,52 and that constitutes a critical element in the current situation in Northern Kosovo and in the implementation of the BA. While one may have doubts about the legitimacy of the referendum held in 2012 by the parallel structures of self-government, where 99% of voters said ‘No’ to the incorporation of the four municipalities into Kosovo, and in particular over the referendum’s compliance with international standards, it is a fact that the turnout in the north in the second local elections held in November 2013 in accordance with the BA, the laws of Kosovo and under international supervision was poor, with less than 20% of eligible voters going to the polls, the first local election two weeks earlier having been annulled due to violent incidents at the polls and with widespread accusations of double voting in certain polling stations. It is fair to conclude that the new municipal administrations, for the first time created under the laws of Kosovo and fully supported by Belgrade, do not reflect the will of the people they are called on to administer, and that the population of the north, at the time of writing, does not want to be integrated into the rest of Kosovo. Note also that the elections saw, for the first time, the affirmation of a new party, the Serb List, promoted and sponsored by Belgrade, and that is further evidence that until now the process of the ‘normalisation of relations’ through integration of the north has been directed from outside (Belgrade, Pristina, Brussels), with very limited involvement of the local population.

14 April 2009, paras. 74–85; Written statement of Finland, 16 April 2009, paras. 5–12; Written statement of Ireland, 17 April 2009, paras. 27–34; Written statement of Latvia, 17 April 2009, 2; Written statement of The Netherlands, 17 April 2009, 6–13; Written statement of Poland, 14 April 2009, 22–29; Written statement of Slovenia, 17 April 2009, paras. 7–8; Oral pleadings by Saudi Arabia, UN Doc. CR 2009/26 (2009), 32–34; Oral pleadings by Denmark, UN Doc. CR 2009/29 (2009), 73–74; Oral pleadings by Jordania, UN Doc. CR 2009/31 (2009), 26–42. It is submitted that the argument is unconvincing as in 2008, at the time of the declared independence, Serbia was ruled by a democratic government committed to the respect of human and minority rights. In 1999, when the circumstances would have justified the invocation of such a right, the possibility of secession was clearly rejected by the international community. 52

E.g., Peters (note 14).

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In a realist perspective, one could argue that the ‘self-determination’ of about 40,000 people should not stand in the way of the settlement of a long-standing, major international issue involving the interests of a number of international actors, including regional States and international organisations active on the ground such as the EU, the UN and NATO. And yet, if the BA is seen as a political tool for the transfer of sovereignty over Northern Kosovo, and if the procedural dimension of selfdetermination is taken seriously as an emerging international norm conditioning the process of territorial changes, the need to ensure that the local population is on board should be considered an important priority. To that extent, the upbeat attitude expressed by the EU representatives in Kosovo in the days after the local elections of November 2013 is not justified, and it perpetuates the EU’s strategy of prioritising the appearance of progress over the achievement of tangible results in Kosovo’s fragile democracy.53 A further effort aimed at the local population in the north is required in order to square the circle and to make sure that the ‘unpretentious’ BA will be remembered in history books as one of the most important steps in the settlement of the Kosovo question and as paving the way towards the full European integration of all countries in the Western Balkans and the historical reconciliation between Serbs and Kosovars. Ignoring the will of the people, instead, may turn out to be detrimental to the attempt to ‘unfreeze’ the conflict over Northern Kosovo, with local, regional and international actors eager to use the BA and its implementation process to further their own political agendas and the local population ‘trapped’ in a legal vacuum in which corruption and illegal activities continue to flourish.

VI. Concluding Remarks The BA and its implementation process can be pinpointed as the single, most successful diplomatic effort in the EU foreign policy post-Lisbon Treaty so far. The EU has managed to bring to the negotiating table the two parties and strike a number of practical compromises on areas of mutual cooperation, which are decisively contributing to the normalisation of relations and the settlement of the conflict, while allowing the parties to maintain their respective positions on the status of the Former 53 For a critique of the EU’s role in Kosovo, especially of the results achieved by the European Union Rule of Law Mission in Kosovo (EULEX) operation, see Andrea Capussela, State-Building in Kosovo: Democracy, Corruption and the EU in the Balkans (2015), 68–74.

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Yugoslav province. The dangers of another frozen conflict in the heart of Europe have been considerably reduced and the imminent opening of the EU-funded and restructured bridge in the divided town of Mitrovica is an important symbolic achievement in that process. Yet the path undertaken is not free from perils, as the legal bases on which the process is grounded are still fragile. The decisions of Serbia’s Constitutional Court striking down three decrees implementing decisions taken within the ‘EU-facilitated dialogue’ before the adoption of the BA, namely on the recognition of university diplomas, on the special procedure for processing data in Kosovo’s land cadastres and on border controls between Serbia and Kosovo, show that significant legal obstacles in the process of the normalisation of relations remain and that the devil may lie in the details.54 If the Community of Serb Municipalities is indeed enacted through constitutional legislation in Serbia following the ambiguous provisions of the BA, possible challenges against the BA before Serbia’s Constitutional Court would likely be rejected on the basis of its compliance with the Constitution in that respect. However, the adoption of such constitutional legislation, apart from raising tensions with Kosovo, may clash with the EU requirement, found in the EU-Serbia Negotiating Framework adopted in January 2014, that “Serbia shall in particular ensure that adopted legislation, including its geographical scope, does not run counter to the comprehensive normalisation of relations with Kosovo”.55 Ideally, a balance should be sought by the parties in dispute and by the EU in allowing a degree of flexibility in the way the parties maintain their sovereign claims and their legal ties to the municipalities in the north, at the same avoiding unilateral, provocative actions which endanger progress in the process of normalisation of relations. Not least, reconciliation between Serbs and Kosovars in Kosovo and in the region should be the ultimate objective. The controversial adoption in September 2013 of the Amnesty Law by the parliament of Kosovo for political crimes committed against the 54 Decree on the Special Procedure for Recognition of University Certificates and Evaluation of Study Programs of Universities in the Territory of the Autonomous Province of Kosovo and Metohija which do not Perform their Activities in Accordance with Regulations of the Republic of Serbia, no. 110-969/2012, 9 February 2012, Official Gazette of the Republic of Serbia no. 16/12; Decree on the Special Procedure for Processing Data in Land Cadastres for the Autonomous Province of Kosovo and Metohija, Official Gazette of the Republic of Serbia no. 94/11; Decree on Control over the Crossing of the Administrative Line with the Autonomous Province of Kosovo and Metohija, Official Gazette of the Republic of Serbia no. 98/11. 55

Ministerial Meeting (note 42), para. 38.

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constitutional order of Kosovo, but excluding international crimes, and the creation in August 2015 of a new war crimes chamber within Kosovo’s judicial system in order to investigate alleged crimes committed against Serbs in the aftermath of NATO’s military intervention, together with the prospective opening of the bridge in Mitrovica, are concrete steps in this direction.56 Full truth in relation to all grave violations of international law committed during the conflict and in its aftermath, including the 2004 riots against the Serb population of Kosovo, prosecution of those responsible and an apology by both Serbian institutions for the crimes committed during the Milosevic regime and by the Kosovar institutions for the crimes committed in the aftermath of the 1999 conflict and during the 2004 riots will be indispensable elements in the effort to seek reconciliation within a common European perspective. Ultimately, a good faith, sustained effort to shed full light over historical events and to agree on adequate forms of reparation for the harm suffered are the two essential elements in the path towards full cooperation and reconciliation between Serbia and Kosovo.

Law on Amnesty, 19 September 2013, Official Gazette of the Republic of Kosovo, Law No.04/L209; Law on Specialist Chambers and Specialist Prosecutor’s Office, 3 August 2015, Official Gazette of the Republic of Kosovo Law No. 05/L-053. On the Specialist Chambers see Emanuele Cimiotta, The Specialist Chambers and the Specialist Prosecutor’s Office in Kosovo, Journal of International Criminal Justice 14 (2016), 53. 56

The Conflict in Western Sahara After Forty Years of Occupation: International Law versus Realpolitik JUAN SOROETA

ABSTRACT: After fifteen years of war (1975–1991) and 25 spent in a failed peace process (1991–2016), a wall spanning 2,700 km continues to cut off the Non-Self-Governing Territory of Western Sahara, dividing its population between those who, despite not having had recourse to violence, suffer Moroccan repression in their own land, and those who struggle to survive in refugee camps in Tindouf (Algeria). The 1988 Settlement Plan remains blocked as a result of the intransigent position of Morocco, which refuses to countenance the holding of a referendum on self-determination, for which MINURSO has already drawn up a census, and as a result of France’s veto, which prevents the Security Council from acting under Chapter VII of the UN Charter to compel the holding of the referendum. Despite this bleak picture, the December 2015 Judgment of the General Court of the European Court of Justice, which annuls the implementation of a free trade agreement between the European Union and Morocco insofar as it refers to Sahrawi territory, appears to shed some light on the conflict. Moreover, while the Spanish government is content to merely be a member of the “Group of Friends of Western Sahara”, its national courts have confirmed Spain’s responsibility as the administering Power of the territory. Are these developments a prelude to a new phase where the Law will start to take precedence over realpolitik? KEYWORDS: Western Sahara, Self-Determination, Human Rights, European Union, United Nations, Peace Plan, Administering Power, Natural Resources

I. Introduction More than four decades have now passed since Spain’s withdrawal from the territory of Western Sahara and its occupation by Morocco. 40 years of suffering of a people who have been all but forgotten by the international community; a people who, though small in number, have shown their greatness when in 1991 they renounced their armed struggle, the legitimacy of which had been recognised by the Lecturer of Public International Law at the University of the Basque Country (Spain).

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United Nations (UN), putting their faith in an organisation which promised to undertake a process of decolonisation similar to that which had given independence to the rest of Africa’s large territories. At that moment in time, an important debate took place within the POLISARIO Front between those who believed in the need to continue the armed struggle, arguing that it would not take long before Morocco gave up on a war which it could ill afford to wage, given the enormous burden on its economy, and those who were in favour of placing trust in the UN and exchanging their weapons for the polls in a referendum on self-determination. Regrettably, 25 years of interminable and futile negotiations, where the weaker party has given way time and again under pressure from the stronger party and its allies, leading to the deadlocked situation that we currently find ourselves in, would seem to vindicate those who advocated an armed solution to the conflict. Despite this, the Sahrawi people remain committed to a peaceful solution. As we shall see in this article, even if the peace process, which began in 1991, has led nowhere as a result of Morocco’s fundamental opposition to the exercise by the Sahrawi people of their right to self-determination coupled with the unconditional support of France, Morocco’s principal ally, at the time of writing, there are grounds for hope and belief that the Law, capitalised for emphasis, can, once and for all, set aside considerations of realpolitik, and start to pave the way towards the decolonisation of the territory of Western Sahara, which has up to now been marred with obstacles.

II. ‘Spanish Sahara’ (1884–1975) One of the questions which have not been the subject of controversy between the parties throughout the conflict is the question of the land boundaries of the territory, which were established under various Hispano-French agreements from the early 20th century.1 However, the rich natural resources of the Sahrawi coast, together with the fact that the decolonisation of the territory remains an issue yet to be resolved, continue The territorial boundaries of Western Sahara were established through the Hispano-French agreements of 27 June 1900, 3 October 1904, and 14 November 1912, see United Nations General Assembly (UN GA), Report of the United Nations Visiting Mission to Spanish Sahara, UN Doc. A/ 10023/Add.5 (1975), para. 117. 1

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to be a permanent source of friction between the neighbouring States and the reason why the maritime boundaries between them have not yet been delimited. In contrast to the colonisation processes undertaken by the other European powers, the initial objective behind Spain’s colonial endeavour, when it began in 1884, was not the exploitation of the natural resources of the territory, but rather an attempt to keep alive the flame of a moribund ‘Spanish empire’. The wars in Cuba, Puerto Rico, and the Philippines and Spain’s unstable internal situation meant that its interest in the territory of Western Sahara remained of secondary importance, until the discovery of substantial phosphate deposits in the 1960s belatedly awoke Spanish colonial ambitions. With the support of the United States of America (USA), Spain joined the UN on 14 December 1955, thereby overcoming what Winston Churchill had called “the Spanish Question”, which had been pending since 1946 when the UN condemned Franco’s dictatorship. From this point onwards, the UN exerted great pressure on Spain so that Spanish Sahara be included in the list of Non-Self-Governing (NSG) territories and so that the Spanish government discharge its obligations as administering Power. One year later, following the Portuguese example, by means of the Decree of 21 August 1956,2 Spain proceeded to “convert” its African colonial territories into “Spanish provinces”, as a result of which the Spanish government declared in 1958 that it did not possess any colonies but, rather, “Overseas Provinces”. But, finally, under pressure from the UN, the Spanish government decided, on 11 November 1960, “to notify the Secretary-General of the territories referred to in Chapter XI of the Charter”,3 a statement which presupposed the inclusion of Spanish Sahara in the NSG list of territories. In resolution 2229 (XXI),4 the General Assembly affirmed “the inalienable right of the peoples of Spanish Sahara to self-determination” and invited Spain to organise a referendum on self-determination – and to respect the resolutions of the General Assembly on the activities of foreign economic interests operating in Spanish Sahara, Decree Approving the Change of Name of the Directorate General of Morocco and the Colonies (Decreto por el que se dispone el cambio de denominación de la Dirección General de Marruecos y Colonias), 21 August 1956, Boletin Oficial del Estado num. 263 of 19 September 1956, 6031. 2

3

UN GA, Fourth Committee, 1047th Meeting, UN Doc. A/C.4/SR.1047 (1960).

4

GA Res. 2229 (XXI) of 20 December 1966.

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and invited all other States to refrain from making investments in the territory; in resolutions 2711 (XXV) and 2983 (XXVII),5 the General Assembly also reaffirmed “that it recognizes the legitimacy of the struggle being waged by the colonial peoples for the exercise of their right to self-determination and to freedom of choice, and calls upon all States to provide them with all necessary assistance”, thereby highlighting the support of the General Assembly for an incipient national liberation movement, which would in time become the POLISARIO Front. As a result of this pressure being brought to bear by the UN, Spain finally communicated to the Secretary-General that [the Spanish Government] will hold a referendum, to be under the auspices of and supervised by the United Nations, during the first six months of 1975 […]; it will take the necessary measures to ensure that the indigenous inhabitants of the Territory exercise their right of self-determination in conformity with resolution 3162 (XXVIII), of December 14, 1973.6

For its part, Morocco rejected the possibility of independence, proposing that the model to be followed in the quest to settle the conflict was the procedure undertaken in West Irian, which would entail the ‘bilateralisation’ of the dispute between Spain and Morocco – a proposal which was not accepted by Spain, as it had never claimed sovereignty over the territory.7 From then on, Morocco’s aim was to block the organisation of the referendum, which it ultimately achieved with the approval by the General Assembly in 1974 of resolution 3292 (XXIX).8 This resolution in essence involved three matters: the request for an advisory opinion from the International Court of Justice (ICJ), the request to Spain to postpone the referendum, and, finally, the despatch of a visiting mission to the territory. As regards the first question, the resolution requests the ICJ to give an advisory opinion on the following questions: (I) Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonisation by Spain a territory belonging to no one (terra nullius)? 5

GA Res. 2711 (XXV) of 14 December 1970; GA Res. 2983 (XXVII) of 14 December 1972.

UN GA, Letter dated 20 August 1974 from the Permanent Representative of Spain addressed to the Secretary-General, UN Doc. A/9714 (1974). 6

At the time of writing (August 2016), Algeria has made public its rejection of the idea of negotiating a bilateral solution to the dispute with Morocco, an old attempt by Morocco to convert the decolonisation question into a territorial dispute between two States. 7

8

GA Res. 3292 (XXIX) of 13 December 1974.

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If the answer to the first question is in the negative, (II) What were the legal ties between this territory and the kingdom of Morocco and the Mauritanian entity?

As regards the second question, the resolution calls upon Spain to postpone the referendum it contemplated holding in Western Sahara until the General Assembly decides on the policy to be followed in order to accelerate the decolonization process in the territory, in accordance with Resolution 1514 (XV), in the best possible conditions, in the light of the advisory opinion to be given by the International Court of Justice.

Lastly, the General Assembly asked the Special Committee to send a visiting mission to the territory, with a view to obtaining first-hand information on the wishes and aspirations of the population. Thus, the Mission was able to verify that “[w]ithin the [t]erritory, […] the population, or at least almost all those persons encountered by the Mission, was categorically for independence and against the territorial claims of Morocco and Mauritania”.9 The Mission Report also reinforced the need to consult the population so that it might “provide a lasting solution and preserve peace in the region”.10 With the hindsight afforded by the four decades which have elapsed since the adoption of resolution 3292 (XXIX), one can only regret the opportunity missed by the General Assembly, which, in adopting this resolution, threw away over twenty years of effort, by preventing the dispute from being settled through the holding of the referendum on self-determination. This paralysis in the process allowed Morocco to organise what was already considered an open secret: the Green March, which would lead to the occupation of the territory of Western Sahara, to the flight of a large part of the Sahrawi population to what have now become refugee camps in Tindouf (Algeria), and mark the start of an armed conflict lasting fifteen years.

III. The Advisory Opinion of the ICJ In answer to the first question posed by the General Assembly, the Court found that at the time of Spanish colonisation, the territory was not terra nullius. In answer 9 UN GA, Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/ 10023/Add.5 (1975), para. 11 (18). 10

Ibid., para. 32.

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to the second question, and after having clarified that the phrase “legal ties between the territory and the Kingdom of Morocco and the Mauritanian entity”, used in resolution 3292 (XXIX), was to be understood as referring to “such legal ties as may affect the policy to be followed in the decolonization of Western Sahara”,11 the Court asserted the following: The materials and information presented to the Court show the existence, at the time of Spanish colonisation, of legal ties of allegiance between the Sultan of Morocco and some of the Tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. However, the Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the kingdom of Morocco or the Mauritanian entity. Thus, the Court has not found legal ties of such a nature as might affect the application of Resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.12

Although the Court has been criticised for having missed the opportunity to clarify “certain unclear aspects of the law on decolonization”,13 and the Opinion has even been described as ambiguous, the fact remains that this last paragraph is sufficiently categorical in terms of guiding the General Assembly on what was the policy to be followed in the decolonisation of Western Sahara (the main reason for the request to the Court for an Opinion): the holding of a referendum on self-determination.

IV. The Withdrawal of Spain and its Consequences (1975–1991) A. The Green March and the Tripartite Madrid Accords

In light of the ICJ Opinion, the Secretary-General decided to make public the socalled Waldheim Plan, the first and only plan compliant with international law put 11 International Court of Justice (ICJ), Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 12, para. 85 (emphasis added). 12

Ibid., para. 162 (emphasis added).

Juan Antonio Carrillo Salcedo, Libre determinación de los pueblos e integridad territorial de los Estados en el dictamen del T.I.J. sobre el Sahara Occidental, Revista Española de Derecho Internacional XXIX-1 (1976), 33, 49. 13

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forward by a Secretary-General. It proposed the withdrawal of Spain from the territory, the establishment of a provisional international administration in the territory, and a popular consultation, to be carried out within approximately six months. However, by then, the King of Morocco had already launched the Green March, a march of “unarmed civilians” who would peacefully occupy the territory. Even though the Security Council, acting under the framework of Chapter VI of the Charter of the United Nations (UN Charter)14 (which, as we shall see, would shape the future stages of the dispute), addressed to Morocco “an urgent request to put an end forthwith to the declared march”15 and, after the event, “deplor[ed] the holding of the march”, calling upon Morocco “immediately to withdraw from the Territory of Western Sahara all the participants in the march”,16 the occupation of the territory led to the outbreak of war. Given the content of the resolutions of the Security Council, there is no doubt that the Green March entailed a violation of Article 2 UN Charter, as it constituted a breach of the recognised boundaries of a NSG territory, compounded by the occupation of that territory through the use of force. Although Morocco claimed that the march was peaceful in nature, its troops had already crossed the frontier some days before the march had begun, and had occupied Spanish military bases as well as the city of Smara. While the dictator Francisco Franco was on his deathbed, casting a shadow of uncertainty over Spain and its future, his government and the governments of Morocco and Mauritania signed, on 14 November 1975, the “Madrid Declaration of Principles”.17 This Declaration stated, on the one hand, that “Spain confirms its resolve, repeatedly stated in the United Nations, to decolonize the Territory of Western Sahara by terminating the responsibilities and powers which it possesses over that Territory as administering Power”; that it undertakes “to institute a temporary administration in the territory, in which Morocco and Mauritania will participate, in collaboration with the Djemaa” (an assembly of Sahrawi notables instituted 14

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

15

Security Council (SC) Res. 377 of 22 October 1975 and 379 of 2 November 1975.

16

SC Res. 380 of 6 November 1975.

Declaration of Principles on Western Sahara, 14 November 1975, Spain-Morocco-Mauritania, UNTS 988, 259. 17

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by Spain); and transfers to that administration the above-mentioned responsibilities and powers. On the other hand, the three States undertook to respect “the views of the Saharan population expressed through the Djemaa”. Bearing witness to the confusion engulfing the General Assembly upon the realisation of the consequences of the adoption of resolution 3292 (XXIX), which paralysed the holding of a referendum that would have put an end to the conflict, the Assembly adopted, on 10 December 1975, resolutions 3458 A (XXX) and 3458 B (XXX), which although both reaffirmed “the inalienable right of the people of the Spanish Sahara to self-determination”,18 also contained contradictory elements. Thus, resolution 3458 A (XXX) requested the Government of Spain, as the administering Power, […] to take immediately all necessary measures […] so that all Saharans originating in the Territory may exercise fully and freely, under United Nations supervision, their inalienable right to self-determination;

while resolution 3458 B (XXX), on the other hand, put the same request to the “temporary administration” (which in the end was never established), which was, to use the graphic expression of Thomas M. Franck, “like inviting a cat to consult the canaries”.19 On 26 February 1976, the Spanish government communicated to the SecretaryGeneral that the persistence of circumstances beyond its control has made it impossible thus far to organize the popular consultation provided for in the agreements of 14 November 1975 […] In accordance with the provisions of paragraph 2 of the Madrid Declaration of Principles of 14 November 1975, the Spanish Government, as of today, definitively terminates its presence in the Territory of the Sahara,

and “considers itself henceforth exempt from any responsibility of an international nature in connection with the administration of the said Territory”.20 There is virtual unanimity among commentators on international law that these Accords are null and void. On the one hand, because their object and purpose was to 18

GA Res. 3458 A (XXX) and 3458 B (XXX) of 10 December 1975.

Thomas M. Franck, The Stealing of the Sahara, American Journal of International Law 70 (1976), 694, 717. 19

UN GA/SC, Letter dated 26 February 1976 from the Permanent Representative of Spain to the United Nations addressed to the Secretary-General, UN Docs. A/31/56 (1976), S/11997 (1976), 2. 20

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deny a people its right to self-determination and independence, a right which is a norm of jus cogens, thereby violating Article 53 Vienna Convention on the Law of Treaties;21 and, on the other, because of the lack of legitimacy of the subjects that participated in the Accords, given that neither Spain (the administering Power, but not possessing sovereignty over the territory), nor Morocco, nor Mauritania (the ICJ had already found that these latter States held no sovereign title over the territory) had any legal authority over such a NSG territory and its population. These two latter States had even violated, in 1976, the principle of uti possidetis juris, a principle which, as established by the ICJ, is of general application to the process of decolonisation, when they ‘shared out’ the territory of Western Sahara under the Rabat Agreement.22

B. The Armed Conflict

Following the invasion of the territory by Morocco and Mauritania, the Sahrawi population was divided between those who remained in the territory under the occupation because they either did not wish to flee or were not able to (before withdrawing from the territory, the Spanish army fenced off the most important cities with barbed wire in order to facilitate their occupation), those who remained in the part of the territory which continues to this day to be under the control of the POLISARIO Front, and those who fled, enduring bombings with napalm and white phosphorus, to the most inhospitable part of the Algerian desert (Tindouf), which since then has housed the improvised refugee camps.23 In the midst of this exodus, the Sahrawi Arab Democratic Republic (SADR) was proclaimed on 27 February 1976. After three years of combat, in November 1979, Mauritania decided to withdraw itself from the conflict and to recognise the SADR, ceding the territory it had occupied to the POLISARIO Front. Morocco, however, which had previously recognised that this part of the territory did not belong to it, immediately proceeded to occupy it. At the same time as this was happening, the UN General Assembly once again 21

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 332.

Convention concerning the State Frontier Line Established between the Islamic Republic of Mauritania and the Kingdom of Morocco, 14 April 1976, Mauritania-Morocco, UNTS 1035, 120. 22

On the bombing of the civilian population and its consequences see Carlos Martín Beristain/ Eloísa González Hidalgo, El Oasis de la Memoria: Memoria Histórica y Violaciones de Derechos Humanos en el Sahara Occidental, Vol. I (2012), 99–161. 23

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considered the question of the Sahrawi conflict. Resolution 34/37 takes note of the decision of the Assembly of Heads of State of the Organisation of African Unity (OAU) of July 1979,24 which reaffirms “the inalienable right of the people of Western Sahara to self-determination and independence”, and the legitimacy of the struggle being carried out by the POLISARIO Front, “the representative of the people of Western Sahara”, whose participation is recommended in the search for solutions to the conflict. Finally, this important resolution “deeply deplores the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently evacuated by Mauritania”25. Resolution 35/19 requests Morocco and the POLISARIO Front, “representative of the people of Western Sahara, to enter into direct negotiations with a view to arriving at a definitive settlement of the question of Western Sahara”.26 This resolution served as a model for the other resolutions which the General Assembly, almost routinely, would approve, all of which would have the common characteristic that they placed the UN at a second level as regards the OAU, which would be given the initiative in the decolonisation process of the territory. Between 1981 and 1987, Morocco built up to eight walls, extending approximately 2,700 kilometres, which have since then served to split the Sahrawi territory in two, reserving for itself the ‘useful triangle’, which took in the Sahrawi cities of El-Aaiun and Smara, and the Bou Craa phosphate mines. Throughout the armed conflict, the POLISARIO Front waged a guerrilla war, which it never had a hope of winning militarily, given the enormous superiority of Morocco, both in terms of the quality of its weaponry and its troop numbers. However, the economic cost for Morocco to mobilise hundreds of thousands of soldiers to monitor the length of the wall finally forced King Hassan II27 to come to the negotiating table with the representatives of the POLISARIO Front, whom he had, until then, qualified as ‘terrorists’. We now find ourselves at the end of the 1980s; the Cold War was coming to an end; Namibia, the other large African territory submitted to colonial domination, 24 Assembly of Heads of State and Government of the Organization of African Unity, Resolution on the Question on Western Sahara, Decision AHG/Dec.114 (XVI), UN Doc. A/34/552 (1979), Annex II, 90. 25

GA Res. 34/37 of 21 November 1979 (emphasis added).

26

GA Res. 35/19 of 11 November 1980.

27

See Eyal Benvenisti, The International Law of Occupation (2012), 173.

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was about to achieve independence; the Oslo and Washington Accords sought to resume the peace process in relation to the Palestine conflict … Everything seemed to indicate that the peace process was on the right track and that the conflict would finally be resolved. Regrettably for the Sahrawi people, the roadmap for the peace process was to coincide with the outbreak of the bloody civil war in Algeria, when the government suspended the second round of elections after the victory in the first round of the Islamic Salvation Front (FIS). King Hassan II identified in this internal conflict the possibility of a change in Algeria’s position vis-à-vis the Western Sahara conflict, and although this never materialised, from that time onwards, Morocco made use of the peace process with the sole objective of postponing sine die the holding of the referendum, envisaging that with the passing of time the status quo would prevail in the territory. Thankfully, and even though the referendum has not yet been held, as things stand today, no State has recognised Morocco’s annexation.

V. The Peace Process (1991–2000) A. Introduction

With the adoption of resolution 621 (1988),28 the Security Council took up again, after thirteen years, the question of the referendum. This resolution took note of the agreement in principle given by the Kingdom of Morocco and the Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro on 30 August 1988 to the joint proposals of the Secretary-General and the current Chairman of the OAU […] with a view to the holding of a referendum for self-determination of the people of Western Sahara, organized and supervised by the UN in cooperation with the OAU.

The next step was the creation of the United Nations Mission for the Referendum in Western Sahara (MINURSO), in accordance with resolution 690 (1991).29 Finally, on 6 September 1991, the ceasefire came into force.

28

SC Res. 621 of 20 September 1988.

29

SC Res. 690 of 29 April 1991.

198 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 B. The Settlement Plan and the Creation of MINURSO

The Report of the Secretary-General of 18 June 199030 constituted the basis for the peace process. It is made up of two parts: The first includes the “Proposals of the Secretary-General of the UN and of the current President of the Assembly of Heads of State and Government of the OAU in order to achieve a settlement of the Western Sahara question accepted, in principle, by the parties on August 30, 1988” (the Settlement Plan), while the second refers to the “Implementation Plan proposed by the Secretary-General in accordance with Resolution 621 (1988) of the Security Council”. In addition to addressing questions in relation to the conclusion of a ceasefire (the confinement of troops and associated issues), the Settlement Plan laid down the criteria to be respected by the Identification Commission in drawing up the census for the purposes of the referendum and the prior conditions for the holding of that referendum and confirmed the commitment of the parties to accept and abide by the result of the referendum, which was to include only two options: independence or integration with Morocco. For its part, the Implementation Plan conferred new powers to the UN in the process: “The Secretary-General will issue regulations” which “will provide the fundamental basis for the organization and conduct of the referendum and will thus, to the extent of any incompatibility, prevail over existing laws or measures in force in the Territory”31 and “will monitor […] the maintenance of law and order, to ensure that the necessary conditions exist for the holding of a free and fair referendum”.32 As already mentioned, resolution 690 (1991) of the Security Council created MINURSO, whose main functions consisted in monitoring the ceasefire, verifying the reduction of Moroccan troops in the territory, overseeing the confinement of each party’s troops, ensuring the release of political prisoners, supervising the exchange of prisoners of war, implementing the repatriation programme, and, primarily, identifying and registering individuals entitled to vote, ensuring a free referendum and announcing its results. Without doubt, in terms of peacekeeping, this was one of the most ambitious operations ever conducted by the UN. However, after a year, 30 UN SC, The Situation concerning Western Sahara, Report of the Secretary-General, UN Doc. S/ 21360 (1990). 31

Ibid., para. 58.

32

Ibid., para. 47 (g).

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MINURSO had only realised 10% of its potential, thereby already giving some measure of appreciation as to the genuine level of political will behind the operation. It had originally been envisaged that the presence of MINURSO on the territory would be for a maximum of 35 weeks. Over 40 years have now passed … Although those who support the maintenance of the status quo point out that the peace process is at a standstill due to technical questions relating to the census, which, they argue, render the holding of the referendum impossible, this, as we shall now see, is not true. The Settlement Plan clearly laid down the criteria for identifying individuals entitled to vote in the referendum. The starting-point was the census of 1974 made by the Spanish authorities, which needed to be updated to take into account the real growth of the Sahrawi population in the period between 1974 and the date of organisation of the referendum, and the return of Sahrawi refugees resident outside of the territory. The fact of the matter is that, despite all of the obstacles put in place by Morocco throughout the identification process, in the year 2000, MINURSO made public the definitive census for the purposes of the referendum. There is absolutely no technical problem of any sort, just a lack of will.

C. The Exploitation of the Census Problem in Order to Bury the Settlement Plan

1. First Blow to the Peace Process: Javier Pérez de Cuéllar Modifies the Identification Criteria (1982–1991) Despite the fact that the Settlement Plan had clearly established the criteria to be applied to update the 1974 Spanish census (which included 73,497 individuals with a right to vote), Morocco, realising that these criteria would result in a referendum victory for the independence option, directed all of its efforts towards the inclusion in the census of approximately 170,000 people belonging to three tribes resident in the south of Morocco, outside of the borders of Western Sahara. The Settlement Plan recognised the right of family groups or sub-fractions of tribes that were “settled in the territory” to participate in the referendum. Morocco was of the view that it was sufficient for one single representative of a tribe to feature in the 1974 Spanish census in order to allow for all members of that tribe to participate in the referendum, even if the tribe was settled in Morocco. The POLISARIO Front

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maintained that a group could only be considered as settled within the territory if a majority of its members had been registered in the Spanish census. Astonishingly, in his last Report as Secretary-General,33 Pérez de Cuéllar decided to accept the Moroccan proposal, on the basis of two arguments which, it goes without saying, the parties were well aware of before they negotiated the Settlement Plan: on the one hand, the nomadic character of Sahrawi society, and, on the other, the migratory trend towards the south of Morocco which had occurred as a result of the conflicts that had taken place in the territory before the withdrawal of Spain as well as for environmental and/or economic reasons. The severity of this decision of the Secretary-General, which unilaterally modified an agreement that had been freely negotiated by the parties, led to the paralysis of the identification process and the resignation of his very own Special Representative for Western Sahara, Johannes Manz.

2. Second Blow to the Peace Process: Boutros Boutros Gali Seeks to Dismantle MINURSO (1992–1996) After two years in office, during which time it was proposed that MINURSO’s presence in the territory should come to an end, Boutros Gali put before the Security Council three possible courses of action: the holding of the referendum, even without the cooperation of the parties if need be; the continuation of the work of the Identification Commission, but with a time-limit of three months by which time the Security Council must have decided on the modalities for the completion of the process; and, finally, the progressive dismantling of MINURSO. He, personally, seems to be in favour of the third option, because it was the most cost-effective (economic) option.34 Fortunately, the Security Council chose the second option. In his last Report as Secretary-General,35 Boutros Gali proposed that the identification process be suspended until “such time as both parties provide concrete and 33 UN SC, Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/23299 (1991). 34 Id., The Situation concerning Western Sahara, Report by the Secretary-General, UN Doc. S/ 1994/283 (1994).

Id., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/ 1996/343 (1996). 35

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convincing evidence that they are committed to resuming and completing it [the process]” and that there be a 20% reduction in the military component. This was his last attempt, luckily in vain, to put an end to the UN’s presence in the territory.

3. Third (and Definitive?) Blow to the Peace Process: Kofi Annan Abandons the Settlement Plan and Seeks a Solution Based on the Establishment of an Autonomous Western Sahara Within Morocco (1997–2006) Since he was appointed Secretary-General, Kofi Annan has publicly defended the need to unblock the process and to provide a definitive solution to the conflict. With this objective in mind, he convened the parties in Houston in order to seek to resume the identification process. However, just as Marrack Goulding, former UN UnderSecretary-General, was to make public in 2002, the real intentions of the SecretaryGeneral were quite different: “Annan asked me in 1997 to go to Houston to persuade James Baker III to accept an appointment as Special Representative and try to negotiate a deal based on enhanced autonomy for Western Sahara within the Kingdom of Morocco.”36 This unacceptable assignment given by the Secretary-General to his Special Representative enables us to better understand both the content of the two Baker Plans and the laudatory comments about these plans contained in Annan’s Report, as discussed further below.

a) Officially, Annan Resumes the Settlement Plan (the Houston Agreements) … The ‘official’ route got underway in July 1997, with the conclusion of the Houston Agreements37 which, at least provisionally, had the effect of unblocking the identifica36

Marrack Goulding, Peacemonger (2002), 214–215.

UN SC, Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/1997/742 (1997), Annex III. The supporting protocols and guidelines to the Houston Agreements can be found in: id., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/1999/483/Add.1 (1999); id., Letter dated 13 May 1999 from the Secretary-General addressed to the President of the Security Council, UN Doc S/1999/554 (1999); and id., Letter dated 13 May 1999 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/1999/ 555 (1999). 37

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tion process. Under the terms of these Agreements, Morocco agreed that it would not directly or indirectly sponsor or present for identification anyone belonging to the three tribal groups not settled in Western Sahara, so as to allow MINURSO to resume the identification process for the remaining applicants. In just a few months, the results of the identification process in relation to tribal groups settled within the territory were made public. In light of the results (approximately 82,000 voters), the POLISARIO Front decided once more to accept the conditions imposed by Morocco, and to allow the identification by MINURSO of the applicants belonging to the three contentious tribal groups, trusting that, in keeping with the impartiality shown by the UN in the previous phase, the increase in the census would not be very significant. Finally, in February 2000, the results of this process were made public. Of the 198,469 applications submitted, only 86,386 were accepted, which equated to an increase in the census of around 4,000 voters.38 By proceeding in this manner, the UN had taken advantage of the opportunity provided to demonstrate that, with the proper means and capacity, it could act with determination and objectivity. Under these circumstances, Morocco decided to lodge more than 100,000 appeals, thereby calling into question the impartiality of the Identification Commission’s rigorous work, and seeking to use this appeals phase to take the identification process back to its original starting point.39 Although initially not in favour,40 in the end the POLISARIO Front even accepted the possibility that MINURSO carry out the identification process without the approval of the sheiks or tribal leaders put forward by POLISARIO and Morocco. But by this point, Morocco had already decided to definitively give up on the possibility of holding, at any given time, a referendum on self-determination in the territory – that is, if it had ever believed in that possibility to start with. Indeed, and even though Morocco’s position in this regard had been crystal clear since the time of Pérez de Cuellar, at this juncture it openly expressed its total opposition to any type of referendum: It would never accept a referendum on self-determination unless it would serve

38 Id., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/ 2000/131 (2000), para. 6. 39

Ibid.

40

UN SC (note 35).

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to confirm that Western Sahara was part of Morocco. In truth, Morocco was thus openly stating what it had been indirectly saying since 1991. In these circumstances, Kofi Annan specifically asked the Security Council to put aside the Settlement Plan in order to look for a solution to the conflict through political means, concealing the fact that he had already put in motion this ‘informal approach’ since his arrival at the UN Secretariat. However serious it was to have put aside the implementation of a plan that had been freely negotiated between the parties and approved by the Security Council, even more worrying were the reasons of the Secretary-General. One the one hand, Annan asserted that even if the census were completed, there was a “lack of an enforcement mechanism for the results of the referendum”.41 Certainly, the unquestionable use by France of its veto power would block any recourse to Chapter VII of the UN Charter, but the Secretary-General should have reminded the Security Council of its duty to ensure compliance with the results of the referendum, rather than seeking to justify his proposal on the basis of the non-acceptance by the stronger party – which is the party acting in breach of international law – of those results. On the other hand, he declared that any adjustments to the Settlement Plan would be of no use, since “the endgame would still produce one winner and one loser”.42 This expression is a constant in the reports by Annan, who deserves harsh criticism for seeking to place on the same level a State that is illegally occupying a NSG territory and the people subjected to that occupation. Are we perchance meant to understand that in the decolonisation process the idea is to share out territory, resources, and rights between the coloniser and the colonised? Is a State to be considered the ‘losing side’ if, after years of violating international law, it complies with, or is forced to comply with, its international obligations? That said, more serious still is the repeatedly-made statement that Morocco is acting “in its capacity as Administering Power”, a statement the truth of which was denied by the Office of the Legal Counsel of the UN itself, but one which the Secretary-General continued to include in his reports. I will revert to this point further on.

Id., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/ 2001/613 (2001), para. 29 (emphasis added). 41

42

Ibid., para. 53.

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b) … But in Reality he had Already Buried it (Baker Plans I and II) The first Baker Plan (“The Framework Agreement on the Status of Western Sahara”)43 was rejected by the Sahrawi representatives from the outset on the grounds that it amounted to a proposal for autonomy and, as such, was utterly distinct from the right to self-determination of peoples; indeed it was a proposal which could easily have been put forward by Morocco, and so I shall not spend any time considering it further. The second Baker Plan (“The Peace Plan for the Self-Determination of the People of Western Sahara”)44 established an autonomy regime for a period of five years, in which only those Sahrawi individuals included in the MINURSO census would be eligible to participate, as elector and/or elected; after that period, a referendum would be held on the future of the territory in which, in addition to Sahrawi voters, persons who “have resided continuously in Western Sahara since 30 December 1999”,45 i.e. settlers, would also be eligible to vote. In the words of Annan, this referendum will “provide bona fide residents of Western Sahara with an opportunity to decide their future”.46 No longer is reference being made to the Sahrawi people as the sole and authentic beneficiaries of the right to self-determination, but instead there is reference to “bona fide residents”. The Secretary-General thereby introduced a novel concept in public international law, a concept which surely should be introduced in handbooks on the subject: the right of self-determination of “bona fide residents”… Despite the legal absurdity that the proposal entailed, the POLISARIO Front – persuaded that, even with a majority of Moroccan voters (the number of settlers in the territory was around 70% of the resident population), Morocco would not run the risk of holding the referendum – in the end, accepted the second Baker Plan, which, in the event, was rejected by Morocco.

43

Ibid., Annex I.

Id., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/ 2003/565 (2003), Annex II. 44

45

Ibid., para. 5.

46

Ibid., para. 49 (emphasis added).

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4. With the Peace Process Blocked, Ban Ki-moon Focuses his Efforts on Seeking to Protect the Human Rights of the Sahrawi People (2007–2016) Mindful that the position of those States that support Morocco means that the Security Council is prevented from acting under Chapter VII of the UN Charter in order to impose a definitive resolution to the conflict, Secretary-General Ban Kimoon, from the start of his mandate, chose the lesser evil and focused his efforts on seeking to alleviate, to the extent possible, the suffering of the local population in its own territory.47 To that end, he requested the Security Council to set up a mechanism for the monitoring of human rights, or, at least, with that objective in mind, that it approve a widening in scope of the mandate of MINURSO.48 However, these good intentions have, time and again, come up against the implacable opposition of France, even in the face of concrete proposals to that effect from the United States,49 as a result of which very little progress has been made either with regard to human rights or with regard to all other matters raised by the conflict. Notwithstanding the limited scope of his objectives in dealing with the conflict, at least in the last months of his mandate Ban Ki-moon reconnected with the essence of the Sahrawi plight. With a view to gaining at first hand an understanding of the situation, in 2015 the SecretaryGeneral decided to visit Western Sahara and the Tindouf refugee camps, although he was unable to visit the part of the territory under Moroccan control due to the refusal of that government. Following that visit, the Secretary-General drafted his report of 29 April 2016,50 in which he clearly identifies Morocco’s intransigent position as the principal cause for the deadlock in terms of reaching an agreement (“The King stated that the autonomy initiative ‘is the most Morocco can offer’”),51 and states that “more than ever, the staId., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/ 2009/200 (2009). 47

48 “Human rights do not have borders. All stakeholders are obliged to uphold the human rights of all people”, id., Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/2016/355 (2016), para. 100. 49

SC Res. 1871 of 30 September 2009.

UN SC, Report of the Secretary-General on the Situation concerning Western Sahara, UN Doc. S/2016/355 (2016). 50

Ibid., para. 10. The Moroccan Minister for Foreign Affairs indicated to him that “the basis of the process was the ‘2004 understanding’ [the autonomy], which, in his view, consisted of a political solu51

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tus quo [is] no longer an option”.52 In the opinion of the Secretary-General, in addition to the well-rehearsed structural reasons, another series of changing regional dynamics create an urgent need to find a definitive solution. Among these developments, two stand out in particular: the real danger relating to the radicalisation of Sahrawi youths, given the daily worsening of the existing situation in the refugee camps and, moreover, given the regional context of grave instability,53 and the distinct possibility that the POLISARIO Front may decide to take up arms again. This report also alludes to the problems derived from certain statements made during the course of the Secretary-General’s visit to the refugee camps, when he referred to the part of Western Sahara controlled by Morocco as “occupied territories”.54 In retaliation for this statement, which merely reflects reality, in addition to publically discrediting the UN Secretary-General, the Moroccan government ordered the expulsion of 84 personnel members of MINURSO, putting in danger the very existence of the mission, and creating an unprecedented situation in the history of UN peacekeeping operations. Fortunately, the first veiled threat addressed to Morocco by the Security Council in 40 years – when it asserted that, in order to bring back the members of MINURSO to the territory, it was ready to adopt measures which, if necessary, might go against the wishes of the Moroccan authorities – was quick to have effect.55

tion that did not bring the status of Western Sahara into question, inasmuch as ‘the Sahara is already Moroccan’”, ibid., para. 20. 52

Ibid., para. 17 (emphasis added).

“In the Smara refugee camp, I saw first-hand the deep emotions and profound frustrations resulting from more than 40 years of living without the prospect of a better future […] I recoiled at the inhumane conditions and extremely harsh environment in which the refugees live”, ibid., para. 30. 53

See e.g. Aziz El Yaakoubi/Louis Charbonneau, Morocco accuses U.N.’s Ban of dropping neutrality over West Sahara, Reuters, 10 March 2016, available at: http://uk.reuters.com/article/uk-morocco-unwesternsahara-idUKKCN0WB14S (accessed on 3 November 2016). 54

55 “Requests the Secretary-General to brief the Council within 90 days on whether MINURSO has returned to full functionality and expresses its intention, if MINURSO has not achieved full functionality, to consider how best to facilitate achievement of this goal”, SC Res. 2285 of 20 April 2016 (emphases in the original).

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VI. The Legal Status of the Territory A. Spain is the Administering Power of Western Sahara

1. International Law Western Sahara is a NSG territory and, as such, it remains to be decolonised. This is why it continues to feature on the UN’s list of NSG territories, even though, as Spain has consistently recalled every time the matter comes up, in the paragraph in which the name of the administering Power should appear, there is a footnote which indicates the following: On 26 February 1976, Spain informed the Secretary-General that as of that date it had terminated its presence in the Territory of the Sahara and deemed it necessary to place on record that Spain considered itself thenceforth exempt from any responsibility of any international nature in connection with the administration of the Territory […].

Since then, successive governments in that democracy have continued to maintain that Spain is not the administering Power of the territory. Despite this, and, as reiterated every year by the UN General Assembly, in the absence of a decision by the General Assembly itself that a NSG Territory has attained a full measure of self-government in terms of Chapter XI of the UN Charter, the administering Power concerned should continue to transmit information under Article 73 e) of the Charter with respect to that Territory.56

In accordance with these resolutions, it is clear that, from the point of view of international law, Spain remains the administering Power of the territory, given that the General Assembly has never adopted a decision asserting any change in Spain’s status in that regard. What is very serious indeed is that Spain has not only failed to fulfil its obligations as the administering Power, but has also remained impassive in the face of the systematic violations of human rights that have occurred in the territory since 1975, and has, on top of that, benefited from the illegal exploitation of Sahrawi natural resources.57 56

GA Res. 69/97 of 5 December 2014, and 70/94 of 15 December 2015.

Indeed, significantly, former Spanish President José Luis Rodríguez Zapatero was awarded the Order of the Throne, one of the highest State decorations given personally by the King of Morocco, in recognition of his support for Moroccan foreign policy. Previously (March 2015) Rodríguez Zapatero 57

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2. Spanish Law In contrast to the attitude of the Spanish executive, which professes to maintain a position of ‘active neutrality’ in the conflict – as though it were possible to espouse a neutral position with regard to the Law (if one does not support the application of the Law, it follows that one supports its breach, and cannot thus be deemed neutral) – in the last few years, the judiciary has confirmed that Spain is the administering Power of the territory. Two decisions of the Spanish Audiencia Nacional (an organ with jurisdiction over the entire territory of the nation, dealing with the most serious crimes and crimes with the greatest social bearing), with the support of the office of the Public Prosecutor, have confirmed, in a crystal clear manner, Spain’s jurisdiction over the territory, not by reference to the principle of universal jurisdiction, but rather by reference to the principle of territoriality. Furthermore, another highly significant fact corroborates this statement: Spain still continues to monitor Sahrawi air space, although it is very careful not to publicise the fact.

a) Spanish Jurisdiction over the Territory According to Spanish Courts On 14 September 2006, relatives of Sahrawis who disappeared or were murdered since the invasion of Western Sahara in 1975 filed a case before the Investigating Court of the Audiencia Nacional against the Moroccan perpetrators of the crime of genocide, and connected acts involving murder, injuries, and torture. Following the entry into force of the reform modifying the principle of universal jurisdiction (Organic Law 1/2014),58 which restricted its application under Spanish law, and forced the Audiencia Nacional to dismiss the proceedings already underway in relation to the crime of genocide in Tibet, Guatemala, Guantanamo, and Palestine, the Investigating Court decided to consult the office of the Public Prosecutor as to whether or not, as had taken part, in the occupied city of Dakhla, in a congress which advocated that Western Sahara formed part of Morocco. His presence at the congress even elicited a complaint from the Spanish Minister for Foreign Affairs. 58 Spanish Law for the Protection of Part-Time Workers and Other Urgent Measures in the Economic and Social Order (Ley 1/2014 para la protección de los trabajadores a tiempo parcial y otras medidas urgentes en el orden económico y social), 28 February 2014, Boletin Oficial del Estado num. 52 of 1 March 2014, 19294.

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a consequence of the entry into force of said Law, it should shelve the proceedings brought by the relatives of Sahrawi victims. In accordance with the report of the office of the Public Prosecutor, the Audiencia Nacional decided to proceed with the case given that some of the events had occurred “in territory which, to all intents and purposes, should be considered to be part of Spain at the time when the offences were committed”. In addition, the Audiencia Nacional widened the scope of jurisdiction of the Spanish courts ratione temporis up to the present day, because a number of the offences were committed against Spanish citizens during a time when Western Sahara was a Spanish province […] and thus Spain should assume jurisdiction over the events that occurred after the departure from the territory of the Spanish authorities, to the extent that these later events are related to the earlier ones.59

A few months later, in connection with the death of a Sahrawi citizen who was shot by Moroccan police in 2010 in the Gdeim Izik camp, the Audiencia Nacional reinforced these arguments, in the following terms, which require no commentary: Spain remains, de jure, if not de facto, the administering Power of the territory, and, as such, until the period of decolonization is completed, retains the obligations contained in Articles 73 and 74 of the UN Charter; including, providing protection, even jurisdictional protection, to its citizens from all abuse, for which it must widen the scope of its territorial jurisdiction to cover the acts referred to in the complaint.60

b) Spain Monitors the Air Space over Western Sahara Although on 26 February 1976, Spain affirmed that it was putting an end to its obligations as administering Power, the truth is that it has effectively continued its monitoring of the Sahrawi air space: the Canary Island Air Navigation Directorate manages air traffic services in the Canary Island archipelago and in Western Sahara.61 The reason why Spain still continues in 2016 to monitor the air space over Western Audiencia Nacional, Preliminary Proceedings, Summary Procedure 362/2007, Ruling (Auto) of 15 April 2014 (emphases added). 59

60

Id., 40/2014, Ordinary Procedure 80/2013, Ruling (Auto) of 4 July 2014 (emphases added).

See ENAIRE, Espacio aéreo en que ENAIRE suministra servicios de navegación aérea, available at: http://www.enaire.es/csee/ccurl/880/114/fir_espacio_suministro.swf (accessed on 2 November 2016). 61

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Sahara is simple: The military occupation of territory and even the control of Sahrawi maritime spaces can be achieved through the use of force, even though this would be in breach of international law. But for Morocco to be able to monitor the air space, it would require the recognition by the International Civil Aviation Organization (ICAO) of Morocco’s sovereignty over the territory, which it obviously cannot do, as it would thereby incur international responsibility. Moreover, Spain monitors the entirety of the air space over Western Sahara: both the area under Moroccan occupation and that under the control of the POLISARIO Front. This is another element which confirms that Spain is, arguably even ‘de facto’, the administering Power of the territory. B. Morocco is not the ‘de facto Administering Power’, but Rather the Occupying Power of Western Sahara

Despite the reprisals adopted by the Moroccan government following the statements of Ban Ki-moon to that effect, from the perspective of international law, Morocco’s presence in Western Sahara can only be qualified as an ‘occupation’, with a similar legal status to that of Israel in the Occupied Palestinian Territories.62 For this reason, in its Advisory Opinion on the legality of the wall in the Occupied Palestinian Territory,63 the legal characterisation by the International Court of Justice of Israel’s position vis-à-vis the West Bank is applicable mutatis mutandis to Morocco’s position vis-à-vis Western Sahara. For that matter, various UN organs have characterised the presence of Morocco in the territory as an ‘occupation’. Thus, when the Green March took place, the Security Council called “upon Morocco immediately to withdraw from the Territory of Western Sahara all the participants in the march”; following the peace treaty between Mauritania and the SADR, the General Assembly deeply deplored “the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently evacuated by Mauritania”.

On this question see Valentina Azarova, Mending the Gap: Morocco’s Activities in Western Sahara under International Law and Practice, Journal of International Humanitarian Legal Studies (2016) (forthcoming). 62

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. 163. 63

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Likewise, other UN organs have qualified Morocco’s presence in the territory as a “continued occupation” or “persistent occupation”.64 Consequently, it cannot be said that Morocco is the ‘de facto administering Power’, a statement which – as happens when it is made by the European Commission65 – seeks to attribute powers to Morocco which are not recognised as belonging to it under international law. The fact that a Power illegally possesses de facto control over a territory does not imply that as a result it should acquire the status of administering Power; this status is granted by the General Assembly, upon expressly recognising the right of a State to administer a NSG territory, which it has never done with regard to Morocco. On 29 January 2002, the Legal Counsel of the UN, Hans Corell, submitted, at the request of the Security Council, an opinion on the legality of various contracts concluded by Morocco with foreign companies for the exploration of mineral resources in the territory, the clear terms of which opinion leaves no room for doubt: The Madrid Agreement did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power, a status which Spain alone could not have unilaterally transferred. […] Following the withdrawal of Mauritania from the Territory in 1979 […], Morocco has administered the Territory of Western Sahara alone. Morocco, however, is not listed as the administering Power of the Territory in the UN list of NSG Territories.66

64 SC Resolution 380 (1975) (note 16); GA Resolution 34/37 of 12 November 1979, para. 5, GA Resolution 35/19 of 11 November 1980, para. 3; UN Human Rights Commission Resolution 4 (XXXVI) of 15 February 1980 or Resolution 12 (XXXVII) of 6 March 1981 (emphases added).

“According to the UN position, to which the EU abides, Western Sahara remains listed by the UN as a NSG Territory and Morocco is therefore considered today as the ‘de facto’ administering power”, European Parliament, Parliamentary Questions, E-006564/2015, 8 July 2015. 65

UN SC, Letter from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, UN Doc. S/2002/161 (2002), paras. 6–7 (emphases added). 66

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VII. The Exploitation of Natural Resources A. The Corell Opinion and the Exploitation of the Natural Resources of the Territory

Since the approval of General Assembly resolution 1803 (XVII), there is no doubt that the right of peoples to permanent sovereignty over their natural resources is a core element of the right to self-determination, and that its breach “is contrary to the spirit and principles of the UN Charter and hinders the development of international cooperation and the maintenance of peace”.67 As has been pointed out by Rosa Riquelme, it is not a question of prohibiting the exploitation of natural resources in a NSG territory, but rather of ensuring, on the one hand, that said activities are in conformity with the wishes and needs of the territory’s population, and are to its benefit, and, on the other, that both the administering Power and any other company, State, or international organisation that has business dealings with the former must avoid engaging in any activity that runs counter to the economic interests of the indigenous population, to the extent that such activity may constitute an obstacle to that population’s right to self-determination.68 This is the message of General Assembly resolution 50/33, when it acknowledges that foreign economic investment, when done in collaboration with the peoples of the NSG Territories and in accordance with their wishes, could make a valid contribution to the socio-economic development of the Territories and could also make a valid contribution to the exercise of their right to self-determination.69

The literal wording of this resolution (“in collaboration with the peoples” and “in accordance with their wishes”) contrasts with the opinion of Hans Corell, which contains a clear contradiction: After affirming that Morocco is not the administering Power of the territory, he holds that there exists an opinio juris by virtue of which, when the natural resources of a NSG territory are exploited “for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives”, 67

GA Res. 1803 (XVII) of 14 December 1962, para. 7.

Rosa Riquelme Cortado, La soberanía permanente del pueblo saharaui sobre sus recursos naturales, Cursos de Derecho internacional y Relaciones internacionales de Vitoria-Gasteiz 2011 (2013), 385, 396. 68

69

GA Res. 50/33 of 9 February 1996 (emphases added).

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this exploitation is considered compatible with the obligations imposed on the administering Power under the Charter.70 It makes no sense to assert in what way the exploitation of natural resources by an administering Power could be legal, when it has previously been stated that Morocco does not have that status. Moreover, it is hard to ascertain what exact State practice is being referred to, let alone at what moment in time this supposed practice crystallised into a genuine opinio juris, whose existence I certainly do not subscribe to. It is telling that the three cases mentioned concerning the exploitation of natural resources (Nauru, Timor-Leste, and Namibia) have proved the opposite. Even if – despite the above, and for purely dialectic purposes – we were to admit that this interpretation could validly be applied to a State, such as Morocco, which is an occupying Power, the fact remains that in order for the exploitation of natural resources to be in accordance with international law, two cumulative conditions (not alternative, as Corell seems to suggest) would have to be fulfilled: Any such exploitation must be “for the benefit” of the peoples of those Territories, “on their behalf” and (not or) “in consultation with their representatives”. This nuance is important, because it allowed the General Court of the European Union (EGC), in its December 2015 ruling to find that it was sufficient for one single condition to be met, to wit, that the exploitation of natural resources should benefit the population, and indeed the Court further weakened this condition by simply requiring that said exploitation should not be “to the detriment” of the population.71 As a result of this finding, the EGC wrongly concluded that the legal validity of the agreement between the European Union (EU) and Morocco was not dependent on the approval of the POLISARIO Front.72 In the absence of a referendum, the only way of ascertaining the will of the people is to consult that entity which, in accordance with the resolutions of the General Assembly, consti-

70

UN SC (note 66), para. 24 (emphases added).

General Court of the European Union (EGC), Front Polisario v. Council, Case T-512/12, Judgment of 10 December 2015, para. 228. 71

Ibid., paras. 132–139. “Morocco would have to engage in proper consultations with persons authorised to represent the people of Western Sahara before such activities would be allowed, as was done by the United Nations in East Timor”, Hans Corell, The Legality of Exploring and Exploiting Resources in Western Sahara, in: Neville Botha/Michèle Olivier/Delarey van Tonder (eds.), Multilateralism and International Law with Western Sahara as a Case Study (2010), 231, 283. 72

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tutes the “sole and legitimate representative of the Sahrawi people”, i.e., the POLISARIO Front. Or are we going back to “inviting the cat to consult the canaries?”73

B. The Legality of the Agreements Between the EU and Morocco for the Exploitation of the Natural Resources of the Territory

Given the space limitations of this paper, and despite the diversity and importance of such natural resources, which include phosphates, as already mentioned above, and sand, which is exported in large amounts to the beaches of the Canary Islands, as well as the potential oil and gas reserves in the continental shelf of Western Sahara, all of which were noted in the opinion by Hans Corell, I shall focus on the fisheries and agricultural sectors because of the related controversial international treaties between Morocco and the EU, and because, at the time of writing, these agreements are under judicial consideration by the EU.

1. The Agreement Between the European Union and the Kingdom of Morocco Concerning Reciprocal Liberalisation Measures on Agricultural Products, Processed Agricultural Products, Fish and Fishery Products (2012) In furtherance of the Euro-Mediterranean Agreement of 1 March 2000, which saw the creation of the Association Agreement between the European Communities and their Member States and Morocco,74 approval was given in September 2012 to the Decision of the Council of the European Union which endorsed the liberalisation agreement,75 and to the Commission Implementing Regulation (EU) No. 812/2012 amending Council Regulation (EC) No. 747/2001 as regards tariff quotas of the 73

See supra, note 19.

Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part of 26 February 1996, OJ 2000 L 70, 2. 74

Council Decision of 2 December 2010 on the signature of the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the EuroMediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ 2012 L 241, 1. 75

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Union for certain agricultural and processed agricultural products originating in Morocco.76 Both the Decision and the Implementing Regulation, as well as the acts taken in implementation of them, formed the object of an appeal for their annulment lodged by the POLISARIO Front on 19 November 2012.77 On 10 December 2015, the EGC rendered a historic judgment78 annulling the Council Decision insofar as it applied to Western Sahara,79 finding that the scope of application of the contested agreement included a NSG territory, which, as such, did not form part of Morocco, and over which Morocco did not act as administering Power. The EGC stated that the Council had failed to comply with its obligation to ensure, before the signing of the agreement, that the exploitation of the natural resources of the territory would not be to the detriment of its inhabitants and of their fundamental rights. The Council lodged an appeal against the judgment of the EGC, which, at the time of writing, is still pending. Perhaps the most important aspect of this judgment is the recognition of the ius standi of the POLISARIO Front to appear before the judicial institutions of the European Union, given the avenues that are opening up to the Sahrawi national liberation movement in its quest to defend the rights of its people through judicial means, even though, as noted earlier, the EGC got it wrong when it stated that for the agreement to be deemed in conformity with international law, the approval of the POLISARIO Front was not needed. The reason why this ius standi aspect is key is because, on the other hand, the European institutions and the intervening States made it clear that they did not recognise Moroccan sovereignty over the territory. In perfect keeping with this clumsy – albeit, in terms of international law, unimpeachable – statement of the Commission in its Memorial, which I reproduce below,

76 Commission Implementing Regulation (EU) No 812/2012 of 12 September 2012 amending Council Regulation (EC) No. 747/2001 as regards tariff quotas of the Union for certain agricultural and processed agricultural products originating in Morocco, OJ 2012 L 247, 7.

EGC, Front Polisario v. Council, Case T-512/12, Action brought on 19 November 2012, OJ 2013, C 55, 14. 77

78

Id., Front Polisario v. Council, Case T-512/12, Judgment of 10 December 2015.

Given the space constraints of this paper, I would kindly take the opportunity to refer the reader to my article La Sentencia de 10 de diciembre de 2015 del Tribunal General de la UE (t-512/12), primer reconocimiento en vía judicial europea del estatuto del Sahara Occidental y de la subjetividad internacional del Frente POLISARIO, Revista General de Derecho Europeo 38 (2016), 202. 79

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and which did not go unnoticed by the Grand Chamber at the oral hearing held on 19 February 2016, the EGC should confirm the ruling:80 l’approche du Tribunal implique qu’en l’absence d’une clause excluant explicitement le Sahara occidental, tout accord avec le Maroc s’y appliquerait automatiquement, ce qui semble être contraire à l’article 31(3)(c) de la Convention de Vienne lu ensemble avec son Article 34, ainsi qu’au principe de l’autodétermination du peuple du Sahara occidental, et irait également à l’encontre de la pratique internationale selon laquelle les accords internationaux ne s’appliquent généralement pas aux territoires non-autonomes, sauf extension expresse.

Given that – just as the Council recognised during the oral proceedings and as the EGC confirmed in its judgment – the agreement applies to Western Sahara, the Commission itself seems to be in the process of recognising the reasons why the agreement is illegal.

2. The Fisheries Agreements Unlike what occurred with the agreement that was partially annulled by the EGC, the subsequent fisheries agreements, initially between Spain and Morocco (1983), and later between the EU and Morocco (1988, 1992, 1995, 2006, and 2013),81 specifically refer to the scope of their territorial application, while “purposefully using nuanced expressions to distinguish between Moroccan territorial waters and Sahrawi fishing grounds”,82 thereby demonstrating the awareness of the signatories as to the illegality of the agreements. During this long journey, and in the face of the high-handed approach of the Council, special mention should be made of the role played by the European Parliament, when, in asserting the right of self-determination of the Sahrawi people, it 80 European Court of Justice (ECJ), Council v. Front Polisario, Case C-104/16 P, Response by the European Commission of 3 May 2016, para. 30.

On the fisheries agreements, see Juan Soroeta, La posición de la Unión Europea en el conflicto del Sahara Occidental, una muestra palpable (más) de la primacía de sus intereses económicos y políticos sobre la promoción de la democracia y los derechos humanos, Revista de Derecho Comunitario Europeo 34 (2009), 823–864. 81

82 Reply by the Spanish Government to a question posed by Spanish Parliamentary deputy Mr. López Raimundo in relation to Spain’s policy towards Sahara, Official Bulletin of the Spanish Congress of 23 September 1983 (translation by the author).

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insisted “on the necessity to call on UN bodies to propose the setting-up of a human rights monitoring mechanism in Western Sahara”,83 and made the application of the fisheries agreements contingent on respect for the human rights of the population. Thus, for example, before approving the agreement of 28 July 2005, it tabled important amendments to the text of the agreement, in a mandatory, but not binding, report, which the Commission ultimately ignored. Among other matters, this report made conditional the approval of the agreement “to its implementation in accordance with international law” giving the following justification: The right to self-determination, including the right of permanent sovereignty over natural wealth and resources, is a norm of international law from which no derogation is permitted. Neither the Regulation nor the Agreement as they stand provide any safeguards for the Community (or the Member States) in the event of contraventions.84

The Commission ignored this report, relying on its now commonly-used warped interpretation of the Corell opinion, an interpretation which even surprised the author himself:85 “The interpretation given by the UN legal adviser recognises the competence of Morocco to conclude these types of agreements and in this way implies that Morocco is a de facto administrative power of the territory of Western Sahara”.86 In 2011, the European Parliament went as far as to refuse to give its approval to the Extension of the 2006 Fisheries Agreement,87 explaining, among other reasons, that 83 European Parliament, Resolution of 25 November 2010 on the situation in Western Sahara, OJ 2012 C 99 E, 87. 84 Id., Report on the proposal for a Council regulation on the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco of 4 May 2006, A60163/2006, 6. 85 “I find it incomprehensible that the Commission could find any such support in the legal opinion, unless of course the Commission had ascertained that the people of Western Sahara had been consulted, had accepted the agreement and the manner in which the profits from the activity was to benefit them. However, an examination of the Agreement actually leads to a different conclusion”, Corell (note 72), 286.

Statement of Joe Borg, Member of the Commision, EC-Morocco Fisheries Partnership Agreement Debate of 15 May 2006, PV 15/05/2006-18. 86

87 Council Decision 2012/15/EU of 20 December 2011, OJ 2012 L 6, 1. See Juan Domingo Torrejón Rodríguez, El Parlamento Europeo, el Sahara Occidental y el Acuerdo de pesca de 2006 entre la Unión Europea y Marruecos, Revista de investigaciones políticas y sociológicas 12 (2) (2013), 127, and id., La Unión Europea y la cuestión del Sahara Occidental: La posición del Parlamento Europeo (2014); Inmaculada González García, Los acuerdos comunitarios de pesca con Marruecos y el problema de las aguas del Sahara Occidental, Revista Española de Derecho Europeo 36 (2010), 521; and Rosa Riquelme

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it had not been demonstrated that the Agreement benefitted the native population. However, the purely cosmetic changes contained in the 2013 draft Fisheries Protocol,88 together with the rhetorical statement envisaging “a mechanism to allow for the suspension [of the Agreement] in the event of a breach of human rights and democratic principles”, were sufficient for the Parliament to give its approval to an agreement which was, to all intents and purposes, practically the same as the 2011 proposal. Faced with this backtrack on behalf of the Parliament, the POLISARIO Front decided, for the first time, to bring annulment proceedings against the Decision of the Council which had approved the agreement.89 At the time of writing, the proceedings before the EGC are on hold pending the outcome of the appeal before the Court of Justice of the European Union (ECJ) regarding the liberalisation agreement. But it seems apparent that, if the ECJ confirms the judgment, the fisheries agreement will still remain null and void insofar as it concerns the jurisdictional waters of Western Sahara.

VIII. Concluding Remarks At least two things have been revealed by this 25 year peace process. On the one hand, that Morocco never had any intention of holding a referendum on selfdetermination, given its realisation, now just as in 1975, that a popular consultation could and can only lead to one outcome: independence. On the other hand, that the UN has been gradually giving in to pressure exerted by the occupying State and its allies, taking the conflict down a dead end. France’s right of veto, which has even had the effect of preventing MINURSO from monitoring the human rights situation, renders it impossible for the UN to act under Chapter VII of the Charter, thereby imposing a resolution which, as a matter of fact, would not require much legal or political ingenuity either. It would be sufficient for the Security Council to require the application of the Settlement Plan according to the terms that were freely negotiated by the parties in 1988, i.e. ensuring the holding of the referendum on self-determinaCortado/Paz Andrés Sáenz de Santamaría, El Sahara Occidental en las relaciones UE-Marruecos, in: Antonio Remiro Brotóns (ed.), Unión Europea-Marruecos: Una vecindad privilegiada? (2012), 533. 88

Proposal for a Council Decision of 23 September 2013, COM(2013) 649 final.

89

EGC, Front Polisario v. Council, Case T-180/14, Action brought on 14 March 2014.

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tion on the basis of the census drawn up by MINURSO in 2000 and compelling both sides to accept the result. It is not true, as claimed by Annan, that problems of a technical or interpretive nature would prevent the process of decolonisation of the territory to be carried out successfully. The work has been done. It is ‘just’ the political will that is lacking. The weary disillusionment of the Sahrawi people, after decades of humiliation and violations of their human rights in their own land, and the sense of helplessness in the face of UN inaction culminated in the organisation by that people of a protest camp in October 2010, counting more than 20,000 protesters, in the region of Gdeim Izik, near El Aaiun, in what Noam Chomsky was to consider the first mobilisation of the Arab Spring.90 Despite the fact that the Moroccan government recognised the legitimacy of the socio-economic demands of the population, and had reached an agreement with the representatives of the Sahrawi people at the camp, aimed at improvements in terms of housing and the labour market, on 8 November 2010 the Moroccan army and police force proceeded to violently dismantle the camp. The protests of the Sahrawi people were harshly repressed, giving way to serious violations of human rights which extended to the entirety of the territory occupied by Morocco.91 These events occurred on the same day that Morocco and the POLISARIO Front resumed negotiations under the auspices of the Personal Envoy of the SecretaryGeneral in New York … These events sum up perfectly the crux of the conflict. Morocco represses the Sahrawi people in their own land, while this same people seeks to engage in nonviolent resistance and Sahrawi representatives try to negotiate a solution to the conflict, even in such extreme circumstances as faced in Gdeim Izik.92 Disregarding the reality of the situation, the EU proceeds with its unscrupulous exploitation of the natural resources of the territory, although not solely for economic reasons. Just like Spain, the EU is subject to permanent blackmail by the Alawite kingdom, which 90

Luis Villamarin Pulid, Primavera Árabe: Radiografía política del Medio Oriente (2015), 167.

See Asociación Internacional para la Observación de los Derechos Humanos, Report on the trial held before the Permanent Military Tribunal related to the events at the Gdeim Izik Camp, 18 March 2013, available at: http://www.aiodh.org/phocadownload/Report%20Gdeim%20Izik%20eng.pdf (accessed on 29 July 2016). 91

92 After a lengthy dormant period, the Sahrawi authorities are now setting in motion important legal and political initiatives, such as declaring a 200-nautical mile Exclusive Economic Zone (26 January 2009) and ratifying the Geneva Conventions and Additional Protocol I (23 June 2015).

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revolves around three main arguments, which are ‘coincidentally’ revived every time that the decolonisation process is reactivated: incidents in Ceuta and Melilla, massive influx of immigrants to the coasts of the Canary Islands, and putting into question cooperation initiatives relating to the terrorism threat. In the meantime, the Security Council limits itself to adopting every year the resolution proposals of the ill-named “Group of Friends of Western Sahara” – made up of the United States, Russia, France, Great Britain, and Spain – which seeks to maintain an impossible sense of balance between the occupier of the territory and the victim of that occupation, resorting to an expression which entails a contradiction in terms, given that Morocco rejects the Sahrawi people’s right to self-determination: The Security Council calls upon the parties to continue negotiations […] without preconditions and in good faith […], with a view to achieving a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara.93

As Ban Ki-moon has recalled, the living conditions of the Sahrawi refugees, which are worsening by the day, together with the extremely complex regional context and the possibility that the POLISARIO Front might resume the armed struggle that it had abandoned in 1991, are all factors which should mobilise the UN to find a definitive resolution to the conflict. Despite this bleak picture, the judicial proceedings before the ECJ give cause for hope. In the face of the unacceptable and arrogant “warning” given to the Court by France regarding the serious consequences for the EU that would flow from a confirmation of the judgment of 15 December 2015,94 now is the time for the judges to stand up for the Law and, ignoring considerations of political expediency, to contribute towards bringing a resolution to the conflict a step closer.95 93

SC Res. 285 of 29 April 2016 (emphases added).

94

ECJ, Council v. Front Polisario, Case C-104/16 P, Statement in Intervention of France of 31 May

2016.

95 This article was written prior to 21 December 2016, when the Grand Chamber of the ECJ overruled the 10 December 2015 decision of the European Union General Court. The judges used a similar argument but reversed its application: As Western Sahara does not form part of Morocco, the treaty cannot be declared null and void in territory which does not belong to one of the parties. Despite this reversal by the Court, the ruling has three positive aspects: It reasserts the POLISARIO Front’s ius standi, it confirms that Western Sahara is not part of Morocco, and it leaves the way open for the Court to nullify the fishing agreement (approved by the Council on 16 December 2013 on behalf of the European Union and setting out the protocol to be observed by the European Union and the Kingdom

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If there is one thing that has been proven in the more than 40 years of this conflict, it is that it will not come to an end until the Sahrawi people can freely decide their own future through a referendum on self-determination; if others decide for them, by imposing, for example, an autonomy regime, the conflict will remain unresolved. Should this happen, the Sahrawi people cannot be accused of not having explored all imaginable peaceful means to put an end to their suffering.

of Morocco over fishing rights and financial retribution provided for under the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, OJ 2013, L 349, 1). The geographical coordinates defining the area to be fished in under the agreement include Western Saharan waters. The POLISARIO Front appealed against this decision on 14 March 2014, see supra, note 89.

The Paradox of the Europeanisation of Intrastate Conflicts NIKOS SKOUTARIS

ABSTRACT: It has been argued that the European Union can have a positive impact on intrastate conflicts by linking the final outcome of the conflict to a certain degree of integration of the parties involved into European structures. According to this argument, it is the impact of conditionality and socialisation that might have a ‘catalytic’ effect on conflict transformation. The paper does not dispute that the closer the form of association with the EU, the stronger the potential to achieve the respective conflict resolution goal. It highlights, however, that after the accession of any candidate State, the Union tends to accommodate the conflict within its political and legal order rather than mobilise its resources to resolve it. This is largely due to its very limited legal toolbox that does not allow the EU to undertake a more active role in conflict resolution within its borders. KEYWORDS: EU Law, Europeanisation, Intrastate Conflicts, Enlargement, European Neighbourhood Policy, Conflict Resolution

I. Introduction The EU’s historical success as a peacemaker between France and Germany has inspired many to wonder whether the EU may also bring peace to other conflict zones, especially in its immediate neighbourhood.1 This query is even more justified given that the Union has pointed out that conflict resolution is a key foreign priority in its southern and eastern neighbourhoods, presenting it as an “essential aspect of the EU’s external action.”2 In the recently published ‘Global Strategy for the European Lecturer in EU law, University of East Anglia. See generally Emel Akçali, The European Union’s Competency in Conflict Resolution: The Cases of Bosnia, Macedonia and Cyprus, in: Thomas Diez/Nathalie Tocci (eds.), Cyprus: A Conflict at the Crossroads (2009), 180; Elise Féron/Fatma Güven Lisaliner, The Cyprus Conflict in a Comparative Perspective: Assessing the Impact of European Integration, in: ibid., 198. 1

See for instance European Commission, European Neighbourhood Policy Strategy Paper, COM (2004)373 final, 12 May 2004, 3. 2

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Union’s Foreign and Security Policy’ it is underlined that “[t]he EU will engage in a practical and principled way in peacebuilding, concentrating our efforts in surrounding regions to the east and south, while considering engagement further afield on a case by case basis.”3 With regard to its immediate neighbourhood Tocci has pointed out that the “EU’s ‘structural diplomacy’ ie the various forms of association and integration offered by the EU, is potentially well-tailored to induce long-run structural change both within and between countries.”4 According to that rationale, the closer the form of association is with EU, the stronger the potential to achieve the respective conflict resolution goal. Europeanisation in the field of secessionist conflict settlement and resolution should be understood as a process which is activated and encouraged by European institutions, primarily the European Union, by linking the final outcome of the conflict to a certain degree of integration of the parties involved in it into European structures.5

So, “[t]he European Union is not in itself the initiator of the peace process in any direct sense. Instead, it serves as an added factor that encourages conflict resolution to take place more quickly than might have been expected.”6 It is the impact of conditionality and socialisation that might have a positive effect on conflict transformation, thus emphasising both the direct and the indirect forms of EU impact. However, the accession of the Republic of Cyprus (RoC) to the EU failed to ‘catalyse’ a settlement of the age-old dispute shedding doubts on whether the ‘catalytic effect’ thesis could accurately represent the reality. Equally, the minimum (if any) involvement of the Union in the settlement of other intrastate conflicts that have 3 High Representative of the Union for Foreign Affairs and Security Policy, Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy, June 2016, 28, available at: https://europa.eu/globalstrategy/sites/globalstrategy/files/about/ eugs_review_web_0.pdf (accessed on 10 September 2016). 4 Nathalie Tocci, EU Accession Dynamics and Conflict Resolution (2004), 173; see also id., Comparing the EU’s Role in Neighbourhood Conflicts, in: Marise Cremona (ed.), Developments in EU External Relations Law (2008), 216. 5 Bruno Coppieters et al. (eds.), Europeanization and Conflict Resolution: Case Studies from the European Periphery (2004), 2.

James Ker-Lindsay, The European Union as a Catalyst for Conflict Resolution: Lessons from Cyprus on the Limits of Conditionality, Working Paper Series No. 1, Helen Bamber Centre for the Study of Rights and Conflict, Kingston University London, April 2007, available at: http://eprints. kingston.ac.uk/5596/1/Ker-Lindsay-J-5596.pdf (accessed on 10 September 2016). 6

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taken place within its borders, such as the one in Northern Ireland, pointed to the limits of the theory. In other words, the empirical evidence questions (at the very least) any linear conceptualisation of a catalytic effect of EU integration on intrastate conflicts. Instead, it suggests that there is a clear ‘break point’ in the linearity of enhanced conflict resolution potential on the part of the EU at the moment of the accession of any given State. The EU is better equipped to ‘catalyse’ the resolution of a conflict before the EU accession of a candidate State rather than after. This ‘break point’ is what we call ‘the paradox of the Europeanisation of intrastate conflicts’. So, the present paper does not dispute per se the argument according to which the closer the form of association with the EU, the stronger the potential to achieve the respective conflict resolution goal. It highlights, however, that after the accession of any candidate State, the Union tends to accommodate the conflict within its political and legal order rather than mobilise its resources to resolve it. This is not just because the conditionality ‘carrot’ disappears but is also due to endemic characteristics of the Union legal order. The paper compares the toolbox that is available to the EU in the context of the European Neighbourhood Policy (ENP) and the accession negotiations (II.). The analysis points to the many ways that the Union approach towards intrastate conflicts in its neighbourhood is conditioned upon the different contractual relationships between the EU and the relevant States. It shows that the instruments available to the Union in the context of the enlargement process can be deemed more effective in ‘catalysing’ the settlement of an intrastate conflict than the ENP ones. Having noted that, section III. explains the reasons why those enhanced pre-accession instruments did not prove sufficient to ‘catalyse’ the settlement of the Cyprus issue. Instead, it seems that after the RoC’s accession, the Union has mainly focused on accommodating rather than resolving the age-old dispute. The paper suggests that it is the very architecture of the Union constitutional order that does not allow the EU to undertake a more active role in the resolution of conflicts within its borders other than accommodating them (IV.). Of course, this does not mean that the Europeanisation of a given intrastate conflict may not indirectly contribute to its resolution by using the EU framework as an inspiration and a paradigm of peaceful cooperation (V.).

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II. The Closer the Association with the EU, the Stronger the Potential for Conflict Resolution According to the ‘catalytic effect’ thesis, the closer the form of association with the EU, the stronger the potential to achieve the respective conflict resolution goal. This is generally true if one assesses and compares the policy and legal instruments available to the Union with regard to conflicts that take place in ENP countries and EU candidate States. The ENP ‘soft law’ framework prevents the EU from being active in ‘catalysing’ the resolution of a conflict. On the other hand, the accession negotiations allow the EU to set strict conditions relating to the settlement of a given conflict in order for the candidate State to accede.

A. European Neighbourhood Policy

The EU officially launched the European Neighbourhood Policy in 2003 as a new framework for its relations with sixteen neighbouring countries, twelve of which are already fully participating.7 Its genesis, however, could be traced back to the later stages of the ‘Big Bang’ enlargement process. References to a more substantive ‘proximity policy’ were contained in Strategy Papers attached to the pre-accession country reports in 2001 and 2002, in a joint position paper in the form of a letter from Javier Solana and Chris Patten8 and in a speech made in December 2002 by the then President of the Commission, Romano Prodi. In this speech Prodi referred to a proximity policy based on “mutual benefits and obligations, which is a substantial contribution by the EU to global governance.”9 He also underlined the link between enlargement and ENP by mentioning that the new policy was to be based on the idea that “accession was not the only game in town.” “We have to be prepared to offer more than partnership and less than the membership”. The overall long-term goal of this new 7 The twelve countries are Armenia, Azerbaijan, Egypt, Georgia, Israel, Jordan, Lebanon, Moldova, Morocco, Palestine, Tunisia, and Ukraine. Algeria is currently negotiating an ENP Action Plan. Belarus, Libya, and Syria remain outside most of the structures of ENP. 8 Javier Solana/Christopher Patten, Joint Letter on Wider Europe, 7 August 2002, cited in Bart Van Vooren/Ramses A. Wessel, EU External Relations Law: Text, Cases and Materials (2014), 541.

Romano Prodi, A Wider Europe: A Proximity Policy as the Key to Stability, Brussels, 5–6 December 2002, SPEECH/02/619. 9

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policy is to create a ‘ring of friends’ in the periphery of the enlarged Union by incorporating the neighbours into an EU-led economic region.10 More importantly for the purposes of the current paper, Article 8 Treaty on European Union (TEU)11 provides that the special relationship of the EU with its neighbours be “characterised by close and peaceful relations”. In that sense, the General Affairs and External Relations Council highlighted the importance of “shared responsibility for conflict prevention and conflict resolution” among ENP partners and the EU and it prioritised greater cooperation in conflict prevention and crisis management.12 Despite the existence of these ambitious objectives, the EU has not managed to “achieve a great deal in its neighbourhood in the sphere of sustainable conflict resolution.”13 This is largely due to the limited legal toolbox that is available to the Union in order to realise the vision of an increasingly closer relationship with the neighbouring countries and a zone of stability, security, and prosperity for all. The ENP is chiefly a bilateral process that involves the EU on the one side and the relevant partner country on the other. At the outset of the process, the Commission had to prepare Country Reports analysing the political and economic situation in every partner State as well as institutional and sectoral aspects. It did so in order to assess when and how it was possible to deepen relations with the relevant country. The next stage was the development of ENP Action Plans with each country. Those are non-binding instruments that are agreed on between the EU and the ENP States. They are tailor-made for each country based on the country’s needs and capacities as well as their and the EU’s interests. In those Action Plans, the EU and the partner States jointly define an agenda of political and economic reforms by means of short- and medium-term priorities pointing to the ‘joint ownership’ character of the ENP. The incentives on offer in return for progress on relevant reforms are greater integration into European programmes and networks, increased assistance, 10

Michelle Pace, The Politics of Regional Identity: Meddling with the Mediterranean (2006), 106.

11

Treaty on European Union, 24 December 2002, OJ 2012 C 326, 13 (consolidated version) (TEU).

12 General Affairs and External Relations Council, Council Conclusions of 16 June 2003, Press Release No. 10369/03 (Presse 166), 33.

Steven Blockmans/Ramses Wessel, The European Union and Peaceful Settlement of Disputes in the Neighbourhood: The Emergence of a New Regional Security Actor?, in: Antonis Antoniadis/ Robert Schütze/Eleanor Spaventa (eds.), The European Union and Global Emergencies: A Law and Policy Analysis (2011), 73, 90. 13

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and enhanced market access. The implementation of the mutual commitments and objectives contained in the Action Plans is regularly monitored through sub-committees with each country, dealing with those sectors or issues.14 In practice, this means that “[p]olitically sensitive actions to resolve conflict will […] only be included in the Action Plans if the countries for which they are drawn up agree to it.”15 This has led to a very uneven picture with regard to how the different Action Plans prioritise conflict settlement in the various countries. For instance, Priority Area 6 of the Action Plan for Georgia refers specifically to a number of actions that this country would have to undertake in order to promote the peaceful resolution of the its ‘frozen conflicts’ in Abkhazia and South Ossetia.16 Similar priorities are contained in the Action Plans for Israel17 and the Palestinian Authorities18 with regard to the Middle East conflict as well as in the Action Plan for Moldova19 with regard to the Transnistria conflict.20 On the other hand, although the EU/ Morocco Action Plan21 refers to conflict prevention in general, it does not mention the dispute over Western Sahara.22 So, although the relationship with ENP partners is still based on international agreements, such as the Euro-Mediterranean Association Agreements for the southern neighbours, the nature and structure of the Action Plans underline the fact that the ENP is mainly a framework of ‘soft law’. In that sense, the legal toolbox that is 14 For a detailed analysis of the Action Plans and the methodologies of the ENP see Marise Cremona, The European Neighbourhood Policy: More than a Partnership?, in: Marise Cremona (ed.), Developments in EU External Relations Law (2008), 244, 245. 15

See Blockmans/Wessel (note 13).

EU/Georgia Action Plan, available at: https://eeas.europa.eu/sites/eeas/files/georgia_enp_ap_ final_en_0.pdf (accessed on 10 September 2016). 16

EU/Israel Action Plan, available at: https://eeas.europa.eu/sites/eeas/files/israel_enp_ap_final_ en.pdf (accessed on 10 September 2016). 17

European Union – Palestinian Authority Action Plan, available at: https://eeas.europa.eu/sites/ eeas/files/pa_enp_ap_final_en.pdf (accessed on 10 September 2016). 18

EU/Moldova Action Plan, available at: https://eeas.europa.eu/sites/eeas/files/moldova_enp_ap_ final_en.pdf (accessed on 10 September 2016). 19

20 See on this conflict Christopher Borgen, Moldova: Law and Complex Crises in a Systemic Borderland, German Yearbook of International Law (GYIL) 59 (2016), 115. 21 EU-Morocco Action Plan, available at: http://eeas.europa.eu/sites/eeas/files/morocco_enp_ap_ final_en.pdf (accessed on 10 September 2016). 22 See on this conflict Juan Soroeta, The Conflict in Western Sahara After Forty Years of Occupation: International Law versus Realpolitik, GYIL 59 (2016), 187.

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available to the EU to effectively intervene in ‘frozen conflicts’ through the ENP is rather weak. Having said that, one also has to mention that the rather limited legal toolbox of the ENP framework has not stopped the EU from participating in broader political initiatives for the settlement of disputes in the area. To this effect, we note that the Union is a full participant in the Quartet for the Middle East conflict and an observer in the so-called 5+2 talks for Transnistria.23

B. Enlargement Process

While the ENP is a framework of ‘soft law’ that does not allow the EU to be more active in the settlement of ‘frozen conflicts’ in its wider neighbourhood, the enlargement policy provides the EU with a much stronger legal arsenal to intervene in the conflict resolution processes in its candidate States. Theoretically speaking, at least, the “magnetic appeal”24 of the EU and the “lure of membership”25 may lead to the transformation of a given ‘frozen conflict’. Such “power of attraction”26 of the EU is supported by a powerful legal toolbox that may contribute to the resolution of a conflict. This is why it is often said that “[t]he EU’s enlargement policy is, in a loose sense, a peacebuilding exercise.”27 Article 49 TEU provides that “[a]ny European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.” After receiving such an application, the Council has to unanimously decide on opening the accession negotiations after consulting with the

The five being Russia, Ukraine, OSCE, the EU, and the US, the two being Moldova and Transnistria. 23

Ian Black, Inside Europe, The Guardian, 1 March 2004, available at: https://www.theguardian. com/world/2004/mar/01/eu.politics (accessed on 30 October 2016). 24

25

Robert Kagan, Embraceable E.U., Washington Post, 5 December 2004, B07.

Gabriel Munuera, Preventing Armed Conflict in Europe: Lessons from Recent Experience, 1 June 1994, available via: http://www.iss.europa.eu/publications/detail/article/preventing-armed-conflict-ineuropebrlessons-from-recent-experience/ (accessed on 10 September 2016). 26

27 Simon Duke/Aurélie Courtier, EU Peacebuilding: Concepts, Players and Instruments, December 2009, 23, available at: http://www.peacepalacelibrary.nl/ebooks/files/335882072.pdf (accessed on 30 October 2016).

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Commission and receiving the consent of the majority of the component members of the European Parliament.28 The pre-accession strategy, as a whole, is based upon the evolution of the bilateral relations between the EU and the respective candidate State under the relevant international agreement. For instance, during the fifth enlargement it was the Europe or Association Agreements that were reoriented under the reinforced pre-accession strategy in order to provide a vehicle for accession,29 while with regard to Turkey it is the Ankara Agreement that plays this role. The instruments that reorient those international agreements from the aim of association to the aim of accession are the Accession Partnerships (APs). The APs set out in a single framework both the pre-accession actions to be taken by the candidate countries as well as the policy and financial instruments to be taken by the EU to help the candidates in their preparations for accession. They are the key legal instruments in the administrative and political matrix of policy instruments that underpin the pre-accession strategy, which builds on the bilateral structures and achievements to date under the relevant bilateral agreement. Being unilateral decisions of the Council, the APs bind the EU institutions and the Member States only, which are legally bound to scrutinise a candidate State’s progress against the relevant priorities. More importantly for the purposes of the current paper, because they are unilateral decisions of the EU – unlike the ENP Action Plans where the EU and the partner States jointly define the agenda of the reforms –, the EU can really shape their form and content and be prescriptive as to the actions that a candidate State should undertake with regard to a ‘frozen conflict’. For instance, all the APs for Turkey underline Turkey’s obligation to support a comprehensive settlement of the Cyprus issue.30 In response to the priorities and objectives laid down in those APs the candidate State adopts a national programme for the adoption of the acquis (NPAAs). Thus, For a brief analysis see Christophe Hillion, EU Enlargement, in: Paul Craig/Gráinne de Búrca, (eds.), The Evolution of EU Law (2nd ed. 2011), 187. 28

29 For a more detailed analysis see Kirstyn Inglis, The Europe Agreements Compared in the Light of Their Pre-Accession Reorientation, Common Market Law Review 37 (2000), 1173. 30 See generally EC Council Decision 2001/235 of 8 March 2001, OJ 2001 L 85, 13; EC Council Decision 2003/398 of 19 May 2003, OJ 2003 L 145, 40; EC Council Decision 2006/35 of 23 January 2006, OJ 2006 L 22, 34; EC Council Decision 2008/157 of 18 February 2008, OJ 2008 L 51, 4.

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APs and NPAAs should be seen as mutually complementing measures that run in parallel to each other. The European Commission monitors the candidates’ performance in implementing the relevant priorities in the APs, and consequently in the NPAAs. In case of a failure the Council may step in to resolve the matter.31 So, although “often presented as a negotiation process, the accession ‘negotiations’ are more one-sided with the onus being on the candidates satisfying the European Commission and the Member States of their ability” to satisfy the conditions set by the EU and thus to accede to the Union.32 Once there is an agreement that the candidate State has complied with all the relevant conditions contained in all the negotiating chapters, an Accession Treaty is drafted. The Treaty provides for all “[t]he conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails.”33 The signatories are the Union Member States and the candidate State. The Member States have to ratify the Accession Treaty in accordance with their respective constitutional requirements. Innocuous as it may sound, this might prove a cumbersome process given some recent constitutional developments. For instance, the amended Article 88-5 French Constitution34 provides that the ratification of an Accession Treaty could be submitted to referendum unless the parliament decides differently with an enhanced majority of three fifths. In that sense, the Member States can veto the accession of a candidate State even after the signing of the Accession Treaty. What is particularly interesting to us is that since the European Council of 1993 that set out the so-called ‘Copenhagen criteria’, EU membership requires that the candidate country has achieved inter alia stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities.35 A few years later, in Helsinki, the Member States made also clear that the candidates 31

See for example Art. 4 EC Council Regulation 390/2001 of 26 February 2001, OJ 2001 L 58, 1.

32

See Duke/Courtier (note 28).

33

Art. 49 (2) TEU.

Constitution de la République Française du 4 Octobre 1958 (Constitution of the French Republic of 4 October 1958), Journal Officiel de la République Française (JORF) No. 0238, 5 October 1958, 9151, as amended on 23 July 2013, JORF No. 0171, 24 July 2008, 11890. 34

35 Copenhagen European Council, Conclusions of the Presidency, Copenhagen, 21–22 June 1993, available at: http://www.europarl.europa.eu/summits/copenhagen/co_en.pdf (accessed on 30 October 2016).

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ought to settle their bilateral disputes before entering the EU.36 Both those accession conditions, that are incorporated and further articulated in the pre-accession instruments of candidate States that face conflicts within their territory, point to the fact that the Union possesses a much more powerful toolbox than the ENP one. Such toolbox together with the ‘carrot’ of membership can support the transformation of a conflict. An example of successful use of the pre-accession toolbox for conflict resolution has been the case of Macedonia. During the first half of 2001, violent clashes between the Albanian National Liberation Army (NLA) and the Macedonian security forces took place. Given the imminent danger that those clashes could escalate to a fullyfledged civil war, the international community intervened. The then High Representative for the Common Foreign and Security Policy (CFSP) Javier Solana used the ratification of the Stabilisation and Association Agreement “as a strong lever to persuade the Macedonian government to engage in negotiations to reform the Constitution and establish equal rights for Slavic and Albanian communities.”37 Indeed, the international pressure on the Macedonian elites together with the incentive of closer relationship with the EU led to the signing of the Framework Agreement of 13 August 2001.38 The so-called Ohrid Agreement aimed at providing a “framework for securing the future of Macedonia’s democracy and permitting the development of closer and more integrated relations between the Republic of Macedonia and the Euro-Atlantic Community.”39 The EU was also successful in lifting the deadlock in the relations between Serbia and Montenegro when they were both parts of the Former Republic of Yugoslavia (FRY) in the period 2001–2002. Javier Solana used the lever of opening negotiations “between the FRY and the EU, with its immediate economic advantages and its alluring promise of future EU membership.”40 He “was also reported to have threat36 Helsinki European Council, Presidency Conclusions, 10–11 December 1999, available at: http:// www.europarl.europa.eu/summits/hel1_en.htm (accessed on 30 October 2016).

Steven Blockmans, The EU and Conflict Resolution: “de facto” States in the Neighbourhood, in: Finn Laursen (ed.), The EU as a Foreign and Security Policy Actor (2009), 115, 126. 37

Framework Agreement of 13 August 2001 (Ohrid Agreement), available at: http://ec.europa.eu/ enlargement/pdf/the_former_yugoslav_republic_of_macedonia/framework_agreement_ohrid_1308 01_en.pdf (accessed on 2 November 2016). 38

39

Preamble Ohrid Agreement.

40

See Blockmans (note 37).

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ened Montenegro with cutting off at least half of the EU’s financial aid if Podgorica pursued its plans to stage a referendum on independence.”41 Those tactics led to the Final Agreement of 14 March 2002 (Belgrade Agreement).42 According to it, the new State union of Serbia and Montenegro was created. More importantly, both of the composite republics had to agree to wait for a three-year period before they could hold a referendum on independence. In May 2006, Montenegro decided to become independent in a nation-wide referendum. Although the Belgrade Agreement proved short-lived, it provided for a pathway for consensual, democratic, and peaceful secession without hindering the progress of either Serbia or Montenegro towards European integration. Taking into account the bloody civil war that followed the dissolution of the former Yugoslavia, one has to appreciate how the “power of attraction” of the EU led to the peaceful lift of such political deadlock. The most recent example of successful use of the toolbox provided by the accession negotiations for conflict settlement is the EU-brokered fifteen-points Brussels Agreement between the governments of Serbia and Kosovo. The agreement was mediated by the then EU High Representative Baroness Ashton and agreed by the then Prime Ministers of Serbia Ivica Dačić and Kosovo Hashim Thaçi on 19 April 2013.43 According to the Agreement, the normalisation of relations between Serbia and Kosovo entailed inter alia the establishment, scope, and functions of a proposed ‘Association/Community of Serb majority municipalities in Kosovo’,44 the existence of one police force for all of Kosovo including its northern parts,45 and the agreement of the parties that municipal elections shall be held in all of Kosovo under Kosovo law.46

41

Ibid.

Starting Points for the Restructuring of Relations Between Serbia and Montenegro (Belgrade Agreement), available at: http://peacemaker.un.org/sites/peacemaker.un.org/files/ME%20RS_020 314_The%20Agreement%20on%20Principles%20of%20relations%20between%20Serbia%20and% 20Montenegro.pdf (accessed on 10 September 2016). 42

43 First Agreement of Principles Governing the Normalization of Relations, Serbia-Kosovo, 19 April 2013 (Brussels Agreement), available at: http://www.kryeministri-ks.net/repository/docs/FIRST_ AGREEMENT_OF_PRINCIPLES_GOVERNING_THE_NORMALIZATION_OF_RELATI ONS,_APRIL_19,_2013_BRUSSELS_en.pdf (accessed on 2 November 2016). 44

Ibid., paras. 1–6.

45

Ibid., paras. 7–9.

46

Ibid., para. 11.

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More importantly for the present paper, Paragraph 14 provides that “neither side will block, or encourage others to block, the other side’s progress in their respective EU paths.” Indeed, the signing of the Agreement brought Serbia close to EU accession talks and Kosovo to initialing a Stabilisation and Association Agreement, which was signed in October 2015.

III. The Limits of the ‘Catalytic Effect’: The Case of the Accession of Cyprus to the EU While the ENP framework allows the neighbouring States to avoid politically sensitive issues, the nature of the accession negotiations provide the EU with many opportunities to intervene in an intrastate conflict to catalyse its resolution. For the States that are candidates for EU accession the emphasis is on confirming that they have respected the conditions set by the EU and not on negotiating them. This is why the EU has managed to successfully use the process of the accession negotiations to reach solutions on some disputes such as the one in Macedonia. Having said that, the enlargement process is far from being a panacea. A closer look at the Cyprus case points to the limits of the ‘catalytic effect’ of the EU. The lift of conditionality for the Greek Cypriots has allowed the rejection of the UN-sponsored Comprehensive Settlement of the Cyprus Problem, commonly known as the Annan Plan.47 At the same time, the EU accession of Cyprus without a comprehensive settlement led to the accommodation of the Cyprus problem within the political and legal order of the EU rather than its resolution.

A. The Limits of the ‘Catalytic Effect’: Lifting the Conditionality

On 4 July 1990, the then Foreign Minister of the Republic of Cyprus George Iacovou, on behalf of the whole island, presented an application for membership to the European Community. Three years later, the Commission issued its 47 Basis for a Comprehensive Settlement of the Cyprus Problem, 26 February 2003, available at: http://www.globalsecurity.org/military/library/report/2004/annan-cyprus-problem_maps_26feb03. pdf (accessed on 8 November 2016).

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opinion.48 There, it considered Cyprus to be eligible for membership49 but noted that the fundamental freedoms laid down by the Treaty, […] and the universally recognised political, economic, social and cultural rights […] would have to be guaranteed as part of a comprehensive settlement restoring constitutional arrangements covering the whole of the Republic of Cyprus.50

This is the main reason why it concluded that “Cyprus’s integration with the Community implies a peaceful, balanced and lasting settlement of the Cyprus question.”51 It felt, however, that it was necessary to clarify that in case of a failure to reach a settlement through the inter-communal talks under the UN auspices, the situation should be reassessed.52 In 1995, the Council decided to start accession negotiations with the RoC and in exchange to establish a customs union with Turkey. In its historic report, ‘Agenda 2000: The Challenge of Enlargement’, containing its final recommendations on accession negotiations, the European Commission expressed the Union’s support for a settlement within the UN framework. More importantly, it stressed that “[t]he Union is determined to play a positive role in bringing about a just and lasting settlement in accordance with the relevant United Nations Resolutions”.53 At the same time, hoping to use the ‘carrots’ and ‘sticks’ offered by the accession negotiations, the then UN Secretary-General Kofi Annan invited the two communities to re-launch their talks. In December 1999, the Helsinki European Council,54 commenting on those important developments, expressed its “strong 48 Bulletin of the European Communities, Supplement 5/93, The Challenge of Enlargement, Commission Opinion on the Application by the Republic of Cyprus for Membership, on the Basis of COM (93)313 final, 30 June 1993. 49

Ibid., para. 48.

50

Ibid., para. 10.

51

Ibid., para. 47.

52

Ibid., para. 51.

European Commission, Agenda 2000 Strengthening the Union and Preparing Enlargement, 15 July 1997, available at: http://ec.europa.eu/enlargement/archives/pdf/press_corner/publications/ corpus_en.pdf (accessed 10 September 2016). 53

Helsinki European Council, Presidency Conclusions, Helsinki, 10–11 December 1999, available at: http://www.europarl.europa.eu/summits/hel1_en.htm (accessed on 30 October 2016). 54

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support for the UN Secretary-General’s efforts to bring the process to a successful conclusion.” It also underlined that a political settlement would “facilitate the accession of Cyprus to the European Union” but clarified that, in case a settlement was not reached by the completion of the negotiations, the Council’s decisions would “be made without the above being a precondition. In this, the Council would ‘take all the relevant factors’ into account.”55 In exchange, Turkey became a candidate State for accession to the EU. It is difficult to overemphasise the importance of the conclusions of the European Council in Helsinki. The rationale of lifting the conditionality for the Greek-Cypriot-run RoC rested on a realist logic of conflict settlement. According to it, the Turkish and Turkish Cypriot desire to reap the conditional benefits of membership, and the high costs entailed in the absence of a solution before accession, would create the ‘ripe’ conditions for a settlement by generating Turkish incentives to change their positions. In other words, a conditional ‘stick’ both to Turkey and the breakaway State of the Turkish Republic of Northern Cyprus (TRNC) would raise the costs of the status quo. In addition, the EU ‘carrot’ would encourage the parties, including the Greek Cypriots, to support reunification within the EU. Such a strategy was effective enough to ensure the support of Turkey, and most importantly the Turkish Cypriots, to the Annan Plan. Their community overwhelmingly voted in favour of the reunification of the island in the simultaneous referendums in April 2004. However, it failed to foresee the stance of the Greek Cypriots after they signed the Treaty of Accession in 2003 when they had, thereby, ensured that the RoC would become an EU Member State. In fact, the then President of the RoC Papadopoulos, in his dramatic speech on 7 April 2004, asked the Greek Cypriots to say “a resounding NO on 24 April,”56 pointing out that if the Greek Cypriots rejected the Plan it would be the internationally recognised Republic of Cyprus and not the United Cyprus Republic that would

55

Ibid., para. 9.

Press and Information Office of the Republic of Cyprus, Declaration by the President of the Republic Mr Tassos Papadopoulos regarding the referendum of 24th April 2004, Press Release, 7 April 2004. 56

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“become a full and equal member of the European Union.”57 Indeed, the Greek Cypriot community rejected the Annan Plan in an almost 3:1 ratio.

B. Accomodating an Intrastate Conflict

A week later, on 1 May 2004, Cyprus became an EU Member State on terms provided inter alia in Protocol No. 10 on Cyprus of the Act of Accession 2003.58 This legal instrument is the main tool that the EU has used in order to accommodate within its legal order this unresolved dispute. In that sense, a closer analysis of it reveals how the Union offers an insight into how the EU manages intrastate conflicts that take place within its borders. In its Preamble, the EU Member States and the acceding States including the RoC reaffirmed their commitment to a comprehensive settlement of the Cyprus problem. However, since such a comprehensive settlement had not yet been reached, they considered that it was necessary to provide for the suspension of the application of the acquis in northern Cyprus, a suspension which shall be lifted in the event of a solution. In addition, they provided for the terms under which the relevant provisions of EU law would apply to the territorial ‘border’ between northern Cyprus and the government-controlled areas (Green Line). So, Article 1 (1) Protocol No. 10 provides that the application of the acquis is suspended in northern Cyprus. The main scope of Article 1 is to limit the responsibilities and liability of Cyprus as a Member State under EU law. Although Cyprus joined the Union with its entire territory, its government cannot guarantee effective implementation of EU law in the north.59 In fact, according to international courts,60 Turkey exercises effective control in those areas. However, it should be noted that the scope of the suspension is territorial. This means that the Turkish Cypriot citizens of the Cyprus Republic residing in 57

Ibid.

58

Protocol No. 10 on Cyprus, Act of Accession 2003, OJ 2003 L 236, 955.

European Court of Justice (ECJ), Meletis Apostolides v. David Charles Orams and Linda Elizabeth Orams, Case C-420/07, Opinion of Advocate General Kokott of 18 December 2008, paras. 40–41. 59

European Court of Human Rights (ECtHR), Cyprus v. Turkey, Judgment of 10 May 2001, RJD 2001-IV, para. 77. 60

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the northern part of the island should be able to enjoy, as far as possible, the rights attached to Union citizenship that are not linked to the territory as such.61 Concerning the withdrawal of the suspension, we have to underline that according to Article 1 (2) Protocol No. 10 it is the Council, acting unanimously on the basis of a proposal from the Commission, that will eventually decide. Nothing in this provision prevents the partial withdrawal of the suspension of the acquis. It should also be noted that, according to the preamble, a “comprehensive settlement”, to which the first two recitals refer, is not a prerequisite for the withdrawal of the suspension. A “solution” to the Cyprus problem is deemed enough.62 Until the withdrawal of the suspension takes place, Article 2 allows the Council, acting unanimously on the basis of a proposal from the Commission, to define the terms under which the provisions of EU law shall apply to the territorial ‘border’ between the government-controlled areas and northern Cyprus. This Article provided the legal basis for the adoption of Regulation 866/2004 (Green Line Regulation),63 which constitutes the main legislative device for the partial application of the acquis in the northern part of the island. This is an interesting piece of legislation because it regulates the free crossing of people and goods between an area of a Member State where the free movement acquis applies and which is within the customs union, on the one hand, and one where the free movement acquis does not apply and which is outside the customs union, on the other hand. Concerning the free movement of persons, we note that Article 21 Treaty on the Functioning of the European Union (TFEU),64 according to which every EU citizen has the “right to move and reside freely within the territory of the Member States”, applies only south of the Green Line but not in northern Cyprus. In order to deal with this situation, the Green Line Regulation defines inter alia the terms under which the free movement of persons applies to this ‘territorial 61

Max Uebe, Cyprus in the European Union, GYIL 46 (2004), 375, 384.

Recital (4) Preamble Protocol No 10. The distinction between a “comprehensive settlement” and a “solution” is a rather fine one. According to Uebe it implies that a “solution” to the Cyprus issue requires something less than a fully-fledged “comprehensive settlement” plan such as the Annan Plan, see Uebe (note 61). 62

63

EC Regulation 866/2004 of 29 April 2004, OJ 2004 L 161, 128 (Green Line Regulation).

Treaty on the Functioning of the European Union, 13 December 2007, OJ 2012 C 326, 47 (consolidated version) (TFEU). 64

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border’ between an area of Cyprus where the acquis applies and where it does not. The central provision is Article 2 (1). According to it, the RoC has the responsibility to carry out checks on all persons crossing the Green Line with the aim of combating illegal immigration of third-country nationals and to detect and prevent any threat to public security and public policy.65 With regard to the free movement of goods, the main hurdle that the EU had to surpass in order to establish trade relations with a part of its territory where there is an unrecognised government was exactly to avoid any form of recognition of it. In order to do so, the EU, in agreement with the RoC, authorised a Turkish Cypriot NGO, the Turkish Cypriot Chamber of Commerce,66 to issue accompanying documents so that goods originating in northern Cyprus may cross the line and be circulated in southern Cyprus and the Union market. The Commission has also pointed out that it was not the intention of the drafters of Protocol No. 10 “to exclude the application of all provisions of Community law with a bearing on areas under the control of the Turkish Cypriot community.”67 To that effect, Article 3 Protocol No. 10 allows measures with a view to promoting the economic development of northern Cyprus. The existence of such a provision clarifies that the division of the island should not rule out economic assistance of the Union to the less privileged part of the island. Indeed, on 27 February 2006, the Council unanimously adopted Regulation 389/2006 which establishes an instrument for encouraging the economic development of the Turkish Cypriot community (Financial Aid Regulation).68 Although the legal basis for this Regulation was Article 308 TEC69 (now Articles 352 and 353 TFEU), in the preamble there is also a reference to Article 3 Protocol No. 10. Finally, in the event of a settlement, the Protocol provides for the Council to decide unanimously on adaptations of the terms concerning the accession of Cyprus with regard to the Turkish Cypriot community. Article 4 clearly depicts 65

Art. 2 (2) Green Line Regulation.

Art. 4 (5) Green Line Regulation; EC Commission Decision 2004/604 of 7 July 2004, OJ 2004 L 272, 12. 66

67

See ECJ, Meletis Apostolides (note 59), para. 40.

68

EC Council Regulation 389/2006 of 27 February 2006, OJ 2006 L 65, 5.

Treaty Establishing the European Community, 29 December 2006, OJ 2006 C 321E, 37 (consolidated version). 69

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the willingness of the Union to accommodate the terms of a solution of the Cyprus issue in the Union legal order. Indeed, if the April 2004 referendums had approved the new state of affairs envisaged in the Annan Plan, the Council of the European Union, having regard to that Article, would have unanimously adopted the Draft Act of Adaptation of the Terms of Accession of the United Cyprus Republic to the European Union as a Regulation. Those four Articles that make up Protocol No. 10 reveal the seemingly depoliticised and technical approach that the Union has adopted with regard to the Cyprus issue after the RoC’s accession to the EU. The Protocol together with the Regulations on the Green Line and on Financial Aid show that the EU mainly aimed at accommodating the conflict rather than resolving it. The Union has focused on finding ways to alleviate the tensions created by the fact that the RoC’s government does not exercise effective control over northern Cyprus. It did so by suspending the acquis in the north, regulating the free movement of people and goods between the two sides of the island, and providing for some financial assistance to the less privileged part. But there is nothing in those Articles, that regulate the situation in Cyprus after its accession, that could suggest that the EU could be deemed an entity that could engage in ‘catalysing’ a solution. This is in stark contrast to the content of the pre-accession instruments. Such a policy of minimum involvement is far from unexpected given the role of the EU in similar situations such as the conflict in Northern Ireland where the Union reduced its involvement to the funding of cross-border projects mainly through the INTERREG III programme.70

IV. Understanding the Limits of the ‘Catalytic Effect’: A Law Perspective In section II. of the article we showed that the closer the association a State has with the EU, the stronger the potential for resolving its ‘frozen conflict’. We based our argument on the fact that the EU possesses a much stronger toolbox to 70 Trevor Salmon, The EU’s Role in Conflict Resolution: Lessons from Northern Ireland, European Foreign Affairs Review 7 (2002), 337; Brigid Laffan/Diane Payne, INTERREG III and Cross-Border Cooperation in the Island of Ireland, in: Angela K. Bourne (ed.), The EU and Territorial Politics within Member States: Conflict or Co-operation? (2004), 157.

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intervene in a given conflict in the context of the accession negotiations than in that of the ENP. Section III., however, pointed to the limits of this ‘catalytic effect’ thesis. The empirical evidence from the Cyprus case contradicts emphatically any linear conceptualisation of a ‘catalytic effect’ of integration on intrastate conflicts. In fact, it shows that there is a clear difference between the Union approach when dealing with conflicts that take place outside its borders and those ‘internal’ to its territory. It is true that lifting the conditionality with regard to the Greek-Cypriot community meant that the rejection of the comprehensive settlement plan came without any cost to the RoC’s EU integration. To this effect, Tocci noted that “[d]espite the potential in [the] ‘structure’ [of the enlargement process], the Union failed in the realm of ‘agency’.”71 It is equally true that the absence of postaccession conditionality is partly responsible for the EU not being able to ‘catalyse’ a settlement after the accession of Cyprus. At the end of the day, it is well documented that the absence of enhanced surveillance mechanisms post-accession creates a discrepancy between the conditions that have to be satisfied when a State is a candidate and after it has acceded in areas such as minority protection.72 However, I would argue that the observation that the ‘break point’ in the linearity of enhanced conflict resolution potential on the part of the EU lies at the moment of the accession of any given State is not just because the conditionality ‘carrot’ disappears. It is also due to the structural working of the EU itself. There are intrinsic characteristics of the Union constitutional structure that constrain the EU from becoming active in intrastate conflicts within its borders. The Member States as ‘Masters of the Treaties’ refrain from allowing the EU to become active in an area that touches on the very core of their sovereignty. This becomes particularly evident if one examines closely whether the EU has a legal basis to act as an honest broker in such conflicts.

71

See Tocci, EU Accession Dynamics (note 4).

See for instance Peter Van Elsuwege, Minority Protection in the EU: Challenges Ahead, in: Kirstyn Inglis/Andrea Ott (eds.), The Constitution for Europe and an Enlarging Union: Unity in Diversity (2005), 257. 72

242 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 A. Member States as ‘Masters of the Treaties’

Dashwood once famously proclaimed that the EU is a “constitutional order of States.”73 This means inter alia that the Member States as Herren der Verträge have to unanimously agree on the text of the EU Treaties in order to design the constitutional framework of the Union. They are the authors of the constitutional charter of the Union.74 Taking that into account, it is hardly surprising that the Member States do not want to impute any particular role to the EU with regard to issues that touch upon their national sovereignty, such as intrastate conflicts. Those conflicts often question the sovereignty of a metropolitan State over a given territory and thus the very essence of statehood. Protocol No. 10 of the Act of Accession 2003 provides an example. It was signed by the then fifteen Member States and the ten acceding ones including Cyprus. In that sense, Cyprus was one of the co-authors of this piece of primary legislation. Although it was drafted at a moment in which there was dynamism and hope in the negotiation process for the reunification of the island, the Member States did not recognise any role to the EU other than to accommodate a solution or its lack thereof. Similarly, the two legislative instruments to which we have referred – the Green Line and the Financial Aid Regulations – aim at managing the crisis that comes from the fact that Cyprus has joined the Union without solving its intrastate conflict. The Member States and in particular Cyprus have never allowed the Union to assume a more dynamic role that could ‘catalyse’ a solution to the conflict. Of course, Protocol No. 10 is a specific piece of primary legislation that tries to deal with an unprecedented situation and at the same time to respect the sensitivities of a Member State. It is rather difficult to reach broader conclusions just based on it. However, if we look more broadly at the text of the EU Treaties, it is rather impossible to reach a different conclusion. Apart from generic references to “[t]he Union’s aim […] to promote peace”75 that are often referring to its

73 Anthony Arnull et al. (eds.), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (2011). 74

ECJ, The Greens (Les Verts) v. The Parliament, Case C-294/83, Judgment of 23 April 1986.

75

Art. 3 (1) TEU.

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relations with the wider world,76 there is no explicit reference to the role of the EU in intrastate conflicts that take place within its territory. Again, this is hardly unexpected given the painful compromises that Treaty amendments have always entailed and how difficult it has been to reach those compromises in each and every intergovernmental conference. So, reaching a consensus on how the EU could deal with intrastate conflicts that exist within their own borders would have been a Sisyphean task for the 28 Member States that have not even adopted a common position with regard to the recognition of Kosovo. Instead, there is quite some constructive ambiguity with regard to how the EU law framework may accommodate even the peaceful resolution of an intrastate conflict that takes place within its borders. The most recent example of this phenomenon has been the debate on the continuing EU presence of Scotland if it becomes independent from the UK. The debate was whether a new independent State that has been created after a consensual and democratic process of secession from a Union Member State could continuously remain within the EU. Even in this case, the EU law framework does not seem capable of providing for a definite answer. Instead, the interested parties interpreted the Treaties in opposing ways. Following the landslide win of the Scottish National Party in 2011, there was a debate on whether the Scottish parliament had the legislative competence to unilaterally organise an independence referendum.77 In other words, the question was whether an act of the Scottish parliament allowing the organisation of an independence referendum could be deemed ultra vires. The ‘two governments of Scotland’ decided to resolve this important constitutional question with a political agreement,78 the Edinburgh Agreement. According to this agreement, David Cameron and Alex Salmond – as the then heads of ‘Scotland’s two governments’ – 76

Arts. 3 (5), 8 (1), 21 (2)(c) TEU.

For an analysis of the debate see Cormac Mac Amhlaigh, … Yes, But Is It legal? The Scottish Independence Referendum and the Scotland Act 1998, 12 January 2012, available at: ukconstitutionallaw. org/2012/01/12/cormac-mac-amhlaigh-yes-but-is-it-legal-the-scottish-independence-referendum-andthe-scotland-act-1998/ (accessed on 10 September 2016). 77

For an analysis of the legal nature of the Edinburgh Agreement see Christine Bell, The Legal Status of the Edinburgh Agreement, 5 November 2012, available at: http://www.scottishconstitutionalfutures. org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/ChristineBell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx (accessed on 10 September 2016). 78

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agreed to amend the text of the Scotland Act of 1998 to the effect that a new Section 29A was introduced. This new Section explicitly conferred the power on Holyrood to organise an independence referendum by no later than 31 December 2014. Despite the fact that the Scottish independence would have been achieved in accordance with a consensual and democratic process, there was a debate on whether Scotland enjoyed a right for a continuing EU membership. On the one hand, the official position of the Commission at the moment was that [if] part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.79

Thus, Scotland would have to follow the procedure under Article 49 TEU in order to become an EU Member State. However, the Scottish government held a different view. They based their argument80 on the fact that the Scottish situation is sui generis. It would have been the first time that a region would secede from an EU Member State by a consensual and lawful constitutional process. It did so in order to distinguish itself from other secessionist claims in Europe and to ease the concerns of the respective metropolitan States. According to the Scottish position, Article 49 President of the European Commission José Manuel Barroso, Letter of 10 December 2012 to the House of Lords Economic Affairs Committee regarding the status of EU membership for Scotland in the event of independence, available at: http://www.parliament.uk/documents/lords-committees/ economic-affairs/ScottishIndependence/EA68_Scotland_and_the_EU_Barroso's_reply_to_Lord_ Tugendhat_101212.pdf (accessed on 1 November 2016). In fact, this letter follows almost verbatim a similar position expressed by a previous President of the Commission, Romano Prodi, in 2004. According to it, “[w]hen a part of the territory of a Member State ceases to be a part of that state, e.g. because the territory becomes an independent state, the treaties will no longer apply to that territory. In other words, a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the Treaties would from the day of its independence, not apply anymore […]” If the new country wished them again to apply there would need to be “a negotiation on an agreement between the Applicant State and the Member States on the conditions of admission and the adjustments to the treaties which such admission entails. This agreement is subject to ratification by all Member States and the Applicant State”, President of the European Commission Romano Prodi, Answer to Written Question P-0524/04, OJ 2004 C 84E, 421. 79

See Scottish Government, Scotland’s Future: Your Guide to an Independent Scotland, 216–224, available at: www.gov.scot/resource/0043/00439021.pdf (accessed on 10 September 2016). 80

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only regulates “conventional enlargement where the candidate country is seeking membership from outside the EU.”81 But Scotland has been part of the EU since 1973. Therefore, the appropriate legal basis that would facilitate Scotland’s transition to Union membership is Article 48 TEU, the generic provision on the amendment of the EU Treaties. In other words, the Scottish position has been that the amendment of Article 52 TEU, which provides for the States to which the Treaties apply and the relevant articles concerning the composition of the EU institutions would be, by and large, sufficient in order for Scotland to become an EU Member State after its independence. Such considerable ambiguity as to how EU law applies in a situation like that82 is partly due to the fact that there is no consensus between the Member States as to how such political developments should be addressed. In fact, in the long hours of the morning of 19 September 2014, the then Spanish Foreign Minister made clear that if Scotland had become independent, it would have had to join the queue of the other candidate States, underlining how time-consuming this might be. More importantly, his statement shed doubt on whether Spain would ever accept Scotland as a Member State, fearing that this would create a dangerous precedent especially for the secessionist movements that exist in Spain.83 Again, this shows that the Member States as ‘Masters of the Treaties’ have never intended to allow the Union to have a more active role in ‘catalysing’ settlements of their intrastate conflicts.

B. The Legal Basis Problem

According to the ‘catalytic effect’ argument the Union is not expected per se to become the initiator of a peace process in any direct sense. Instead, this theory considers the EU “as an added factor that encourages conflict resolution to take

81

Ibid., 221.

For the different academic views on this debate see http://verfassungsblog.de/category/focus/ scotlands-eu-membership/ (accessed on 10 September 2016). 82

83 A summary of the views of the Spanish government on the Scottish independence referendum 2014 is available at: https://www.theguardian.com/politics/2014/sep/17/spain-independent-scotlandyears-eu-membership (accessed on 13 November 2016).

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place more quickly than might have been expected.”84 Having said that, from an international law point of view, Chapter VI and especially Article 33 Charter of the United Nations85 do not prevent the Union from becoming the mediator in any initiative for a solution of any intrastate conflict. Indeed, as we shall see in the next sub-section, the Union has adopted a number of decisions to facilitate and contribute to conflict resolution in a number of areas of the world.86 However, Article 5 TEU clarifies that the Union is an organisation of conferred powers. The Union can only act on competences that the Member States have conferred on it. A closer look to its present institutional and legal framework clearly shows that although the Union can become a mediator in any conflict that takes place beyond its borders, it cannot assume such a role for intrastate conflicts that are within its territory. This lack of competence shows how much more difficult it is for the EU to ‘catalyse’ the settlement of an intrastate conflict inside its borders than outside. It also points to the fact that there is a clear ‘break point’ in the linearity of enhanced conflict resolution potential on the part of the EU at the moment of the accession of any given State.

1. The Common Foreign and Security Policy In its relations with the wider world, the Union has to contribute inter alia to peace and security.87 That is why the adoption of a legislative act that could allow the EU to engage in principal mediation in negotiations for the settlement of any intrastate conflict could be prima facie legally based on the provisions for the Common Foreign and Security Policy. The Union could assume such a role in order to safeguard its values, fundamental interests, security, independence and integrity; consolidate and support democracy, the rule of law, human rights and the principles of international law; preserve peace, prevent conflicts and strengthen international security.88 84

See Ker-Lindsay (note 6).

85

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

86

See infra, notes 92–95.

87

Art. 3 (5) TEU.

88

Art. 21 (2) TEU.

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In order to achieve this CFSP scope, the Union could adopt a decision defining the relevant actions to be undertaken.89 The device of the CFSP decisions has been introduced by the Lisbon Treaty and, in essence, it replaces what was known in the pre-Lisbon era as joint actions.90 The joint actions were addressing specific situations where operational action by the EU was deemed necessary.91 They have concerned inter alia activities such as support for peace and stabilisation processes through the convening of an inaugural conference,92 general support of a specific peace process,93 a contribution to a conflict settlement process,94 and the appointment of a Special Representative.95 Thus, both the current provisions of the Treaties and the Union practice in the past suggest that the role of the negotiator between the parties in a dispute could be attributed to the EU by a decision defining an action. The adoption of such a decision for an intrastate conflict within the borders of a Member State, however, may be problematic from a legal point of view. If the Treaty on European Union is interpreted in accordance with the ordinary meaning to be given to its terms, following the well-established rule of Article 31 (1) Vienna Convention on the Law of the Treaties,96 it would be difficult to justify the use of a CFSP device for an area that is part of the Union and for mediation between parties whose members are Union citizens. In that sense, the adoption of a CFSP decision by the Council, in order to authorise the Union to play the role of the honest broker in an intrastate conflict that takes place within its borders, can be considered an ultra vires act since a CFSP device cannot be used for an area that is part of the Union.

89

Art. 25 TEU.

90

Ex Art. 12 TEU.

91

Ex Art. 14 (1) TEU.

92

EU Council Decision 93/728 of 20 December 1993, OJ 1993 L 339, 1.

93

EU Council Decision 94/276 of 19 April 1994, OJ 1994 L 119, 1.

94

EU Council Joint Action 2001/759 of 29 October 2001, OJ 2001 L 286, 4.

95

EU Council Joint Action 2002/211 of 11 March 2002, OJ 2002 L 70, 7.

96

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

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2. Other Union Competences Unsurprisingly, conflict resolution does not appear in Title I of the Treaty on the Functioning of the EU, which deals with categories and areas of Union competence. Thus, one could rightly argue that prima facie the TFEU cannot provide for any legal basis in order for the Union to authorise itself as the principal actor in negotiations for the resolution of an intrastate conflict. However, the EU does possess a residual power in accordance with Article 352 (1) TFEU: If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.

To the extent that assuming the role of the mediator in an intrastate conflict can be deemed as necessary for the achievement of one of the Treaty objectives, one could argue that Article 352 TFEU could provide the legal basis. However, the Lisbon Treaty has clarified that the aforementioned Article cannot serve as “a basis for attaining objectives pertaining to the common foreign and security policy.”97 This follows the well-established case law of the Court of Justice which has held that “recourse to that provision demands that the action envisaged should,” on the one hand, relate to the “operation of the common market” and, on the other, be intended to attain “one of the objectives of the Community.”98 “That latter concept, having regard to its clear and precise wording, cannot on any view be regarded as including the objectives of the CFSP.”99 As already mentioned, the role of the ‘broker’ in peace negotiations is considered as rather serving CFSP objectives. For the sake of argument, however, let us imagine that the Council unanimously approves a Commission proposal under Article 352 TFEU. Such legisla97

Art. 352 (4) TFEU.

ECJ, Kadi and Al Barakaat v. Council of the European Union, Joined Cases C-402/05 P and C-415/05 P, Judgment of 3 September 2008, para. 200. 98

99

Ibid., para. 201.

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tive act would authorise the Union to become the principal actor in the negotiations for a settlement of an intrastate conflict such as the Cyprus one. Even in this case, the 2/94 Opinion100 of the Court of Justice questions the legality of such a decision. On that occasion, the Council had requested the Opinion of the ECJ, both as regards the competence, under the then EC Treaty, for the Community to accede to the European Convention of Human Rights and the compatibility of such an accession with substantive provisions and principles of EC law. In particular, the Court focused on the exclusive jurisdiction of the Court of Justice and the autonomy of the Community legal order. For the purposes of the present paper, it is important to note that, according to the Court, ex Article 308 TEC (now Article 352 TFEU) could not serve as a basis for widening the scope of EC powers beyond the general framework created by the Treaty provisions as a whole, and by those that defined the tasks and the activities of the then EC.101 Article 352 TFEU (ex Article 308 TEC) cannot be used as a basis for the adoption of provisions whose effect, in substance, would be to amend the Treaty without following the procedure provided for that purpose.102 If that proposition applied to this case, it would mean that by attributing the role of the principal mediator to the Union following the adoption of a legislative act under Article 352 TFEU, the scope of the Union competences contained in the TFEU would most probably be widened beyond the general framework created by the provisions of this Treaty. Therefore Article 352 TFEU should not be used as a legal basis to that effect. On the other hand, one has to note that accession to the European Convention on Human Rights would have been, in substance, a Treaty amendment without following the procedure provided for by the Treaty. Thus, it is rather difficult to draw conclusions from this Opinion for the purposes of this paper given that the constitutional significance of extending the scope of Union competences under the TFEU to include dispute resolution would have been much more trivial than the accession to the European Convention on Human Rights. Id., Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, Avis 2/94, Opinion of 28 March 1996. For a comprehensive analysis of that judgment and the use of ex Art. 308 TEC see generally Robert Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (2009), 133–143. 100

101

ECJ (note 100), paras. 27–30.

102

Ibid.

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In any case, I would argue that Article 352 TFEU does not provide for a legal basis for authorising the Union to play the role of the honest broker in dispute settlement either. Such an argument is based on the competences attributed to the Union, the delimitation of Article 352 TFEU by the Lisbon Treaty, the Kadi Judgment and the reasoning of the Court in its 2/94 Opinion.

3. An Informal Way Out of the Legal Conundrum: The EU Role in the Croatia-Slovenia Border Dispute Overall, it has been shown that there are important legal constraints in the present Union institutional framework that would make the attribution of the role of principal mediator to the Union for intrastate conflicts that take place within the borders of its Member States rather unlikely. The Union does not seem to have a competence to act as mediator between parties in such intrastate conflicts. However, the leading role that the European Commission played in bridging the differences of Croatia and Slovenia over a border dispute might suggest that the political reality is more nuanced than presented before. In that particular case the then Commissioner for enlargement Olli Rehn “took the unusual role of mediating between a Member State and a candidate country.” Indeed the agreement that was signed in November 2009 unblocked the accession negotiations between Croatia and the 27 Member States. 103 By analogy, this could mean that if the parties to an intrastate conflict ask the Union to act as mediator in a conflict situation – as Slovenia and Croatia have done – it would be rather difficult for the EU to reject such a request. In that sense, the EU could use a rather informal setting, as it has done in the aforementioned case, in order to act as a mediator and to ‘catalyse’ a settlement in an intrastate conflict. In any case, a limited reading of the role that the Union could play in the quest for the settlement of a conflict may disregard the fact that the scope of the CFSP over the years has been defined widely and the role of the European Council has been construed broadly. Frank Hoffmeister, The European Union and the Peaceful Settlement of International Disputes, Chinese Journal of International Law 11 (2012), 77, 102. 103

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V. Socialisation The Union failed to ‘catalyse’ a comprehensive settlement in the age-old dispute in Cyprus mainly because conditionality was lifted for the Greek Cypriots in order for the EU to deal with the intransigence of the then Turkish Cypriot leader Denktash and Turkey. At the same time, the differences between the pre-accession legal framework and the Union’s constitutional order account for the fact that the Union is better equipped to ‘catalyse’ a solution in an intrastate conflict before a State accedes to the EU rather than afterwards. This does not mean that Union membership should be understood as a trivial change of context that cannot alter the dynamics of a given conflict and contribute to its resolution. For instance, Guelke suggested as early as in 1989 that the place of Northern Ireland in the EU, European standards on democracy, human rights, and the treatment of minorities would be just as important as the interlocking internal, north-south, and east-west dimensions of a solution inspired by local and BritishIrish ideas.104 Some years later, Meehan argued that the broader European background and new perceptions of sovereignty that EU membership has facilitated influenced the designing of the Good Friday Agreement.105 To be sure, the EU has had no impact on sectarian factionalism within Northern Ireland. However it has provided a framework for improved practical relations between the UK and Irish governments. In this way, the sharing of sovereignty within the EU has spilled over into some sharing of sovereignty over Northern Ireland.106

In the case of Cyprus, the Union could potentially offer some inspiration with regard to issues of shared sovereignty and consociational policy mechanisms. At the end of the day, the Union’s comparative advantage is in its long-term efforts to change the environments out of which conflicts spring, so as to inoculate

104

Adrian Guelke, Northern Ireland: The International Perspective (1988), 135–153.

Elizabeth Meehan, Britain’s Irish Question: Britain’s European Question? British-Irish Relations in the Context of European Union and The Belfast Agreement, Review of International Studies 26 (2000), 83. 105

106 Sionaidh Douglas-Scott, A UK Exit from the EU: The End of the United Kingdom or a New Constitutional Dawn?, 5 March 2015, 9, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2574405## (accessed on 10 September 2016).

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against them.107 Twelve years after the accession of Cyprus to the EU, the view according to which the EU mode of governance could move historical antagonists to new routes of cooperation has not been verified yet.

VI. Conclusion The main argument of the paper is that there is an inherent paradox in the Europeanisation of intrastate conflicts. Although the comparison between the policy and legal instruments available to the Union in the context of enlargement and the ENP verifies that the closer the association, the stronger the potential for the Union to ‘catalyse’ a settlement in a given conflict, the accession of a State to the Union does not increase such potential. Instead, the Member States have been very reluctant in allowing the Union to effectively intervene in ethnopolitical conflicts within their borders. This is rather expected if one takes into account that the Member States as ‘Masters of the Treaties’ have the power to reduce the say of the EU in issues that touch on the core of their sovereignty. At the same time, the Union, being an organisation of conferred powers, does not seem to have the competence to mediate and thus ‘catalyse’ resolution of intrastate conflicts that take place within its borders. This is not to suggest that Union membership is not important in creating a positive environment for the peaceful cooperation of enemies of the past. In fact, the events that followed the Brexit referendum might suggest that withdrawing from the EU might lead to the exacerbation of nationalist sentiments and the reopening of debates concerning the constitutional status of areas that have a tense relationship with their metropolitan State. The morning after the referendum, the First Minister of Scotland, Nicola Sturgeon, made abundantly clear that she intends to “take all possible steps and explore all options to give effect to how people in Scotland voted – in other words, to secure [their] continuing place in the EU and in the single market in

Christopher Hill, EPC’s Performance in Crisis, in: Reinhardt Rummel (ed.), Toward a Political Union: Planning a CFSP in the EC (1992), 135, 146. 107

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particular.”108 The reason being that “Scotland faces the prospect of being taken out of the EU against [their] will.”109 At the same time, Sinn Féin has called for a referendum for the unification of Ireland and thus for Northern Ireland to remain in the EU.110 It has even been reported that Gibraltar is in talks with Scotland in order to remain in the EU.111 So, the question that we might have to pose ourselves in the future is whether the ‘de-europeanisation’ of intrastate conflicts leads to the ‘resurrection’ of the spectre of nationalism …

108 Nicola Sturgeon, Response to the EU Referendum Result, 24 June 2016, available at: https:// firstminister.gov.scot/news-conference-eu-referendum-result/ (accessed on 10 September 2016). 109

Ibid.

Anon., Sinn Fein seeks Irish reunification vote as Britain votes for Brexit, The Business Post, 24 June 2016, available at: www.businesspost.ie/sinn-fein-seeks-irish-reunification-vote-as-britain-votesfor-brexit/ (accessed on 10 September 2016). 110

111 Gabriel Gatehouse, Brexit: Gibraltar in talks with Scotland to stay in EU, BBC, 27 June 2016, available at: http://www.bbc.co.uk/news/uk-politics-eu-referendum-36639770 (accessed on 10 September 2016).

GENERAL ARTICLES

From Problem to Opportunity?: An Analytical Framework for Vagueness and Ambiguity in International Law ANDREAS KULICK

ABSTRACT: As law hinges on the imprecise instrument that is language, legal norms or legally relevant acts, accordingly, may often be vague or ambiguous. International law is no exception in this regard. However, in international legal thinking on the interpretation of international norms or acts, vagueness and ambiguity (VaA) are usually perceived as a problem, an obscurity to be resolved. This contribution intends to take a fresh look at vagueness and ambiguity in this latter context. It will present an analytical framework systematising five different ways of looking at VaA in interpreting international law and thereupon employ these categories to scrutinise, in descending order of abstraction, VaA’s implications vis-à-vis several issues of international legal thinking, including the exercise of authority and international adjudication. Thereby, it seeks to demonstrate the benefits of moving vagueness and ambiguity from the periphery to the centre of international legal thinking on interpretation. KEYWORDS: Interpretation in International Law, Vagueness and Ambiguity as Opportunity, International Law and Language, International Legal Thinking, International Law and Authority, International Judicial Function

I. Introduction Lawyers seem to strive for clarity. Whether we interpret a statute, try to discern the ratio decidenci of a court judgment or seek to identify a norm of international custom, we look for a clear-cut, ideally brief and easily comprehensible underlying rule or principle, ratio or general logic that will present the solution to the legal question at hand. Legal certainty and predictability play a central role in creating, developing and preserving both domestic and international legal orders or regimes.1 Clarity is their Senior Research Fellow, Eberhard Karls University Tübingen, Faculty of Law. See Jean-François Gerkens, Legal Certainty v Legal Precision – Some Thoughts on Comparative Law, Fundamina 16 (2010), 121. For an argument that legal certainty plays a more fundamental role in 1

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prerequisite. As Roberto Ago, then Chairman of the International Law Commission (ILC) famously stated at the first reading of the draft articles of what later became the Vienna Convention on the Law of Treaties (VCLT)2, “the main objective” of the ILC’s work – in treaty law and beyond – “[is] certainty of the law.”3 Similarly, when a court or tribunal is confronted with a legal question, it is in its own and in the interest of the parties to the dispute to present a clear and unambiguous answer and thereby resolve the dispute before it. Whether the issue pertains to whether Japan’s whaling policy is not in conformity with the exemption from the prohibition of killing, taking and treating whales as enshrined in Article VIII(1) International Convention for the Regulation of Whaling (ICRW),4 whether the customary law on State immunity contains an exception for acts of grave atrocities committed during wartime5 or how the operative clause of a previous judgment must be read,6 to take only three examples from recent decisions of the International Court of Justice (ICJ), both the disputing parties and the Court seek to clarify the issue at hand. And yet, law hinges upon language7 – and language often is not clear, but the opposite, i.e. either vague or ambiguous.8 If I say “The sentence was unconscionably long”, by using the word ‘sentence’ I may refer either to a linguistic unit or to a period

European legal thought than it does in the American legal tradition see James Maxeiner, Legal Certainty: A European Alternative to American Legal Indeterminacy? Tulane Journal of International and Comparative Law 15 (2007), 541. 2

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT).

International Law Commission (ILC), Summary records of the sixteenth session (11 May–24 July 1964), UN Doc. A/CN.4/SER.A/1964, Yearbook of the International Law Commission, 1964, Vol. I, 23, para. 34. 3

4 Convention for the Regulation of Whaling, 24 September 1931, LNTS CLV, 349; see International Court of Justice (ICJ), Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Merits, Judgment of 31 March 2014, ICJ Reports 2014, 226, paras. 48–50.

See ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Merits, Judgment of 3 February 2012, ICJ Reports 2012, 99, paras. 81–97. 5

6 See ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 11 November 2013, ICJ Reports 2013, 281, paras. 81–99. 7 On the use of language in international law generally see Philip Allott’s still unrivalled 1971 piece in the British Yearbook of International Law: Philip Allott, Language, Method and the Nature of International Law British Yearbook of International Law (BYbIL) 45 (1971), 79. 8

On the possible distinction of ambiguity and vagueness see further below in this section.

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of incarceration.9 Moreover, what constitutes a ‘long’ sentence (under both meanings) is far from clear in this example. Are 50 days of incarceration ‘long’? Yes, if your perpetration was cycling on the wrong side of the road; certainly not, if you killed someone. Equally, you may find that the last sentence of the preceding paragraph is a ‘long’ one but it dwarfs in comparison with several enormous conglomerates in Thomas Mann’s Doktor Faustus10 or the last hundred pages of James Joyce’s Ulysses.11 The qualifier ‘unconscionably’ is also vague and taking the entire sentence, both as the combination of these separately ambiguous and vague terms and as an entity, further adds to the confusion. As for the distinction of vagueness and ambiguity (VaA), according to Michael Thaler,12 ambiguity is characterised by the lack of determination of a term’s connotation (Bedeutung) whereas vagueness means the lack of determination of a term’s denotation (Bezug). In another understanding, ambiguity pertains to discreteness whereas vagueness pertains to fuzziness: applied to the above example “The sentence was unconscionably long”, ‘sentence’ has two discrete meanings – a linguistic union or a period of incarceration – and is hence ambiguous while ‘long’ and ‘unconscionably’ lack such discreteness and are thus vague.13 I will use the terms ‘vagueness’ and ‘ambiguity’ in this latter sense, i.e. as different levels of lack of clarity.14 Some posit that interpretation is futile if the semantic meaning of a text is vague.15 However, 9 The example is taken from Jill Anderson, Misreading like a Lawyer: Cognitive Bias in Statutory Interpretation, Harvard Law Review 127 (2014), 1521, 1535.

Thomas Mann, Doktor Faustus – Das Leben des deutschen Tonsetzers Adrian Leverkühn, erzählt von einem Freunde ( Fischer, 1990). 10

11

James Joyce, Ulysses (Wordsworth, 2010).

Michael Thaler, Mehrdeutigkeit und juristische Auslegung (1982), 2; see also Jörg Kammerhofer, Uncertainty in International Law (2011), 118. 12

13

See Anderson (note 9), 1535.

For a similar distinction between ambiguity and vagueness see Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in: Lawrence M. Solan/Peter M. Tiersma (eds.), Oxford Handbook of Language and Law (2012), 128, 129: “Ambiguity […] is about multiple meanings; vagueness is about meaning in borderline cases.” “Borderline cases are cases in which one just does not know whether to apply the expression or withhold it, and one’s not knowing is not due to ignorance of the facts.” See also 133: “Ambiguity assumes a precise meaning – although it may be unclear what it is; vagueness presupposes a lack of precision – even in the presence of precise concepts”. 14

Daniel Peat/Matthew Windsor, Playing the Game of Interpretation: Meaning and Metaphor in International Law, in: Andrea Bianchi/Daniel Peat/Matthew Windsor (eds.), Interpretation in Inter15

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‘construction’ – as opposed to ‘interpretation’ – that needs to be employed according to such view when the text is vague16 is exactly what is often required in the ‘interpretation’ of international treaties or other acts and falls squarely in several of the most interesting issues of the present inquiry, e.g. treaty negotiation or judicial law-making. As lawyers, and no less as international lawyers, we may perceive that our role is to dispel such confusion caused by VaA by the means of interpretation and therefore mostly look at VaA as something to be resolved: which territory around the temple of Preah Vihear is in its ‘vicinity’ and thus under Cambodian territorial sovereignty?17 Has the domestic court jurisprudence in some countries exempting jus cogens violations from the protective scope of State immunity gained customary status?18 VaA pose a problem to which finding the solution appears the primary task of a lawyer. However, international legal scholarship of the past several decades has grappled with and discussed in extenso the ‘indeterminacy’ of international law caused by the indeterminacy of language from a birds-eye perspective, which is a debate I do not want to rehash here.19 Instead, this contribution will look at the implications of VaA in the interpretation of international law from a meso-level, i.e. neither from the heights of abstraction of general legal theory or the ‘indeterminacy’ of international law as a discipline nor with regard to specific doctrinal issues pertaining to Articles 31–33 VCLT. Rather, this piece seeks to zoom into the consequences of language’s lack of clarity with respect to interpretation of international norms by international legal actors and develops a framework for the seemingly unframeable: a systematisation of VaA. By way of systematising VaA, it intends to demonstrate the gains of changing perspective, i.e. taking VaA from the periphery – as an obscurity to get rid of – to the centre of thinking about interpretation in public international law. This enables us to see VaA not merely as a problem but also as a solution, an opportunity or a chal-

national Law (2015), 3, 11, citing Timothy Endicott, Interpretation and Indeterminacy: Comments on Andrei Marmor’s Philosophy of Law, Jerusalem Review of Legal Studies 10 (2014), 46. Cf. Lawrence Solum, The Interpretation-Construction Distinction, Constitutional Commentary 27 (2010), 95, 108. 16

17

See ICJ, Request for Interpretation of the Temple of Preah Vihear Judgment (note 6), paras. 81–99.

18

See Jurisdictional Immunities of the State (note 4), paras. 81–97.

For a summary and overview see Jean d’Asprement, Formalism and the Sources of International Law (2011), 138–146. 19

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lenge20 when international legal actors, particularly but not exclusively international adjudicatory bodies, interpret international law.21 If we want to understand how VaA affect international law it is necessary to seek to comprehend the relationship of law and language as a form of communication and thus, requires insights from the philosophy of language, in particular hermeneutics, and a nod to the ‘linguistic turn’ in (public international) law22 (II.). Next, a considerable part of this study will be dedicated to systematising VaA in order to better comprehend their operation with respect to interpretation of international law (III.). Point of departure will be the two manifestations of VaA (III. A.), their production and their reception, which can be both strategic and non-strategic, as well as the VaA actors (III. B.), i.e. the authors and audience of VaA as consequence of the different forms of manifestations of VaA and according to the sources of international law-making. Such manifestations will help in approaching the forms (III. C.) and functions (III. D.) of VaA. The section on the forms of VaA will look at VaA from different levels of abstraction. The functions of VaA pertain to the manifestation of strategic VaA production, most pertinently aiming at confusion and obscurity, flexibility, preservation and inclusiveness. This section will conclude with the aspects (III. D.) of VaA, pertaining to VaA as problem, solution, opportunity and challenge (aspects). The overview of VaA actors will instruct the succeeding parts. These will look at interpretation issues in public international law in descending order from levels of high abstraction to relative concreteness, commencing with the relationship of VaA and authority (IV.) and adjudication and the judicial function (V.), and ending with an inquiry into the so-called ‘constructive ambiguity’ strategy in the practice of international law-making (VI.). Building on the insights from the ‘linguistic turn’ in section II. and putting to use the systematisation of VaA from section III., in part IV, I will reflect on how VaA enable political actors to exercise authority by way of creating and winning ‘semantic struggles’, which leads to, in Ingo Venzke’s words, ‘semantic authority’, i.e. “an actor’s capacity to influence and shape meanings as well 20

See infra, III. E.

Please note that while the overall argument made in this article is a normative one, my methodological approach regarding the different categories of the systematisation – to the extent possible – is descriptive. 21

See, with an ironic twist, Richard Rorty, Wittgenstein, Heidegger, and the Reification of Language, in: Richard Rorty (ed.), Essays on Heidegger and Others, Vol. 2 (1991), 50. 22

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as the ability to establish its communications as authoritative reference points in legal discourse.”23 Section V. will develop this point further with regard to decisions of international courts and tribunals but will in addition focus on how courts and tribunals as well as disputing parties as VaA actors make use of VaA in order to generate additional aspects of VaA, particularly viewing them as an opportunity to make policy choices and thereby expand the judicial function of the court or tribunal called upon to decide the dispute brought before it. Section VI. looks at ‘constructive ambiguity’ as a specific example of VaA production and reception (VI. 1.). Section VII. concludes this study.

II. Law, Language and VaA Where does the meaning of a text or act derive from? A classical positivist international lawyer24 might be quick to direct us to States’ will.25 In more abstract terms, many would say that the speaker’s intention is what needs to be looked at and scrutinised in order to determine what a particular phrase or expression is meant to say. On the other hand, Article 31(1) VCLT is usually understood to have opted for the objective approach, but nonetheless reflects subjective elements when speaking of the ‘ordinary meaning’ to be looked at in light of its ‘context’ and ‘object and purpose’ in order to interpret a clause in an international treaty. Postulating the ‘ordinary’ meaning of a text as the point of departure, the VCLT nonetheless thus seemingly puts a limit to what can be ascribed to such meaning by the means of State will. However, based on insights from modern linguistics and as mentioned in section I., language is predominantly vague and/or ambiguous. In fact, some linguists even contest that any such thing as an ‘ordinary meaning’ actually exists because words lack any inherent meaning but can mean practically anything the speaker may wish.26 23

Ingo Venzke, How Interpretation Makes International Law (2012), 58 et seq., 63.

See only, with regard to treaty interpretation, Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation, BYbIL 28 (1951), 1, 3–4: “[T]he aim of treaty interpretation is to give effect to the intentions of the parties”. 24

25 On the history of thought pertaining to States’ will as the main source of legitimacy of international law see Martti Koskenniemi, The Gentle Civilizer of Nations (2001), 188–193.

See, e.g., Stanley Fish, There is No Textualist Position, San Diego Law Review 42 (2005), 629, 632–633: “Words alone, without an animating intention, do not have power, do not have semantic 26

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While such outright denial of any fixed meaning is itself highly contested,27 it is less controversial, however, that the way in which the audience processes the speaker’s intention heavily influences the meaning of a word or sentence. The audience, in turn, brings a myriad of preconceptions to the table and the interpretive process itself, in which the audience necessarily has to engage, “is deeply embedded in a societal context where different actors interact with one another.”28 On this account, meaning is to some extent a social construct29 that changes or at least adapts according to the ‘interpretative community’30 the audience interpreting the words spoken or written, is placed in. In a similar vein, hermeneutics teaches us that interpretation, as the act of seeking to understand the meaning of a text, is inevitably constructive. For HansGeorg Gadamer, understanding “is not understanding of language, but understanding through language.”31 “All knowledge is interpretation because all knowledge is constituted linguistically.”32 Every person approaches an interpretation with her specific preconception (Vorverständnis), presupposition and situated-ness in societal, cultural etc. contexts that make up the ‘horizon’ with which she looks at things.33 Therefore and in other words, according to Gadamer, every word and every assembly of words forming a text may inhere VaA. Consequently, the outcome of the word’s interpretation hinges on the author’s intention as much as it does on the audience’s understand-

shape, and are not yet language […] My point is that if you do not want to know about intention, you do not want to know about meaning. […] [T]hey are inseparable from one another”. 27 See only Timothy Endicott, Vagueness in Law (2000), 7–29; Michael P. Spikes, A Kripkean Critique of Stanley Fish, Soundings: An Interdisciplinary Journal 73 (1990), 327.

Andrea Bianchi, Textual Interpretation (International) Law Reading: the Myth of (In)determinacy and the genealogy of meaning, in: Peter Bekker/Rudolf Dolzer/Michael Waibel (eds.), Making Transnational Law Work in the Global Economy – Essays in Honour of Detlev Vagts (2010), 34, 35. 28

29

Ibid., 51.

According to Stanley Fish, an interpretive community is “made up of those who share interpretive strategies not for reading (in the conventional sense) but for writing texts, for constituting their properties and assigning their intentions. In other words, these strategies exist prior to the act of reading and therefore determine the shape of what is read rather than, as is usually assumed, the other way around.” Stanley Fish, Is There a Text in This Class? (1980), 171. 30

31

Hans-Georg Gadamer, Truth and Method (1989), 139.

32

Richard Shapcott, Justice, Community and Dialogue in International Relations (2001), 135.

33

Cf. Gadamer (note 31), 299, 300–307; see also Ronald Dworkin, Law’s Empire (1986), 52.

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ing that, by way of its specific way of looking at the text, inevitably also becomes the author of the text’s interpretation.34 These critical perspectives on the nature of interpretation themselves have sparked critical legal studies approaches to public international law seeking to unmask all interpretation as construction. Most famously, in “From Apology to Utopia” Martti Koskenniemi describes the references to ordinary meaning, context and object and purpose in Article 31(1) VCLT as “constructive justifications for an interpretation rather than something which existed by themselves and could be looked at when concepts proved ambiguous.”35 Thus, “Interpretation creates meaning rather than discovers it.”36 Consequently, on this account, the VaA of words or language themselves are potentially very effective tools in the hands of the powerful. In section IV. I will elaborate on VaA’s relation to the exercise of authority in international law. In a less pessimistic narrative, VaA are an opportunity37 for the interpreter to construct meanings according to her specific political, ethical, societal, cultural etc. preferences. However, in order to unfold its full thrust, such construction disguised as interpretation requires a Rawlsian ‘veil of ignorance’38 on either the side of the author or the audience of interpretation, or both. It must pretend to discover clarity, “as in a hunt for buried treasure,”39 that is hidden somewhere behind a merely seeming vagueness or ambiguity.40 Otherwise, it loses its authority. This is the paradox of VaA in (international) law: They enable interpreters to pretend that there is clarity while in fact there is a multitude of constructed clarities and thus the opposite, i.e. VaA.41 On ‘situationality’ in international law see further Outi Korhonen, New International Law: Silence, Defense or Deliverance?, European Journal of International Law 7 (1996), 1, 4 et seq.; see also generally, id., International Law Situated – An Analysis of the Lawyer’s Stance Towards Culture, History and Community (2000). 34

35

Martti Koskenniemi, From Apology to Utopia ( Reissue with New Epilogue, CUP 2005), 18.

36

Ibid., 531.

37

See also infra, III. E.

38

John Rawls, A Theory of Justice (1999), 11, 118–123.

39

Joseph Raz, Between Authority and Interpretation (2009), 241.

40

Cf. also Koskenniemi (note 35), 530–531; Peat/Windsor (note 15), 12–13.

As Ian Scobbie demonstrates we get similar insights from rhetorical theory, see Ian Scobbie, Rhetoric, Persuasion and Interpretation in International Law, in: Bianchi/Peat/Windsor (eds.) (note 15), 61, 64–65. 41

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III. Systematising VaA: Actors and Aspects, Forms, Functions and Manifestations This part sets out the framework within which the remaining parts will look at VaA in order to better comprehend their influence on and operation with respect to issues of interpretation in international law. The five categories identified here – in order of presentation: manifestations, authors, forms, functions and aspects – represent different ways to regard VaA that are not clinically isolated from each other but which may overlap. Further, although they are supposed to highlight the – in my opinion – most pertinent features of VaA in international law, they do not aspire to be exhaustive.

A. VaA Manifestations

There are two manifestations of VaA, VaA production and VaA reception. VaA are being produced constantly. The lessons learned from hermeneutics and linguistics42 tell us that literally any use of language may produce VaA. Hence, any treaty, resolution, judgment, etc. may potentially produce VaA. What needs to be distinguished for the purposes of this study, however, is inadvertent from deliberate VaA production, i.e. strategic from non-strategic VaA production. Non-strategic VaA production is the most common occurrence, e.g. the definition of a term in a United Nations Security Council (UNSC) Resolution laying out sanctions against a recalcitrant State. The sanctions regime is supposed to be highly specific in order to avoid loopholes as well as targeting the wrong industries or persons. If, for example, the definition of ‘chemical weapons’ remains ambiguous or even vague, this may seriously undermine the effect of the sanction. On the other hand, the same resolution, at least in the intention of some of its drafters, may deliberately remain vague and/or ambiguous in order to (a) reach a consensus among the required majority of the Security Council members, including particularly the Permanent five Members (P5);43and (b) at the same time allow for as much leeway of interpretation that some members may pursue a goal that other 42

See supra, II.

43

See only Malcom Shaw, International Law (7th ed. 2014), 877–879.

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members sought to prevent, while not going beyond what the language of the resolution permits. A good example of such strategic VaA production are the UNSC Resolutions on Libya in 2011 that enabled France, Britain and the United States (US) to fly air strikes against the regime of Muammar al-Qaddafi for purposes of regime change.44 We may call this VaA manifestation ‘semi-strategic’ VaA production as only some of the authors45 of the resolution deliberately inserted language that could be read in ways not intended by, in particular, the two Permanent Members abstaining, China and Russia. An example of a strategic (in this case) vagueness production on behalf of all authors would be enshrining the word ‘necessary’ in Article XX(b) General Agreement on Tariffs and Trade (‘GATT’):46 The Contracting Parties to the GATT deliberately chose a broad term in order to encompass a huge variety of not fully foreseeable measures that may relate to the legitimate protection of “human, animal or plant life or health.” The second manifestation represents VaA reception. Equally, here, insights from hermeneutics and linguistics are instructive. If interpretation is at least as much about the audience’s understanding of a word, phrase, etc. as it is about the speaker’s intention,47 then the VaA reception is pivotal. As with VaA production, VaA reception can be strategic and non-strategic. The most obvious form of strategic VaA reception is (the attempt) to reduce VaA, e.g. by way of correction or amendment, or – if the means of correction or amendment are not (realistically) available, as would usually be the case with international treaties, for example – by way of interpretation. However, the audience of an act, treaty, etc. may also inadvertently misunderstand such act, treaty etc. which eventually leads again to VaA production.

B. VaA Actors

Closely related to the aforementioned, VaA are produced by their authors. Contracting parties – both, States and international organisations (‘IOs’) – create treaties 44

SC Res. 1973 of 17 March 2011; see also infra, VI.

45

See infra, III. B.

General Agreement on Tariffs and Trade 1994 (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 190. 46

47

See supra, II.

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the provisions of which are subject to interpretation and hence potentially vague or ambiguous. The same applies to resolutions or other decisions of IOs as well as unilateral acts, being authored by States, IOs but also other non-State actors,48 which can have a vague or ambiguous nature. Custom and general principles are particularly interesting with regard to authorship of VaA because in the traditional understanding of the theory of sources of international law they are created by States – custom by continuous and consistent practice based on an opinio iuris; general principles by shared legal traditions as shaped by States’ legal orders.49 However, as a matter of fact, both only take effect if they are identified by their audience, which by their reception contributes to the actual production of customary international law and general principles – or by drawing a line as to what does not meet the standard. These hidden authors may be international courts or tribunals – just take the ICJ’s 2012 judgment in Jurisdictional Immunities as an example of an international court determining what forms part and what does not form part of the customary law of State immunity50 – domestic courts – again, think of State immunity51 – but also non-State actors such as the International Committee of the Red Cross (ICRC) ‘identifying’ and thereby at least partly ‘creating’ custom in the field of international humanitarian law.52 All these overt or hidden authors may produce VaA, strategically or non-strategically. The scope of VaA actors increases even further when looking at the audience of VaA. This is because authors of legal acts usually produce VaA both for themselves and for others. The audience of a treaty includes the contracting parties themselves as 48 For example, an investor’s waiver of its rights may bear relevance in investor-State dispute settlement before an international arbitral tribunal, see e.g. Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award of 6 February 2008, para. 118 (albeit assimilating waiver with estoppel).

See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 1–26; see also generally Hersh Lauterpacht, Private Law Sources and Analogies of International Law (1927). 49

50

See ICJ, Jurisdictional Immunities of the State (note 4).

See Xiaodong Yang, State Immunity in International Law (2012), 26: “The rules and principles regarding State immunity have evolved chiefly from within the States, not between them; that is, such rules are primarily the result of hundreds of cases decided by various domestic courts […]” (emphasis in the original). 51

52 On this debated issue see, e.g. George Aldrich, Customary International Humanitarian Law – An Interpretation on Behalf of the International Committee of the Red Cross, BYbIL 76 (2005), 503 and Jean-Marie Henckaerts, Customary International Humanitarian Law – A Rejoinder to Judge Aldrich, BYbIL, 76 (2005), 525.

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well as third States53 and the international community at large, often including individuals – for example with regard to human rights treaties. They all may understand a specific treaty norm differently than intended by the authors and thereby again reproduce VaA; or they may seek to reduce the VaA produced – again, both strategically or non-strategically – by the author(s). The same applies, mutatis mutandis, with respect to resolutions and other decisions of IOs, unilateral acts, custom, and general principles of law. Further, decisions of international courts and tribunals and of domestic courts applying international law may be understood by their audience – the parties to the dispute, intervening third parties and the international community (of States and at large) – in a vague and/or ambiguous manner. Or such audience may be confronted with a judgment using vague and/or ambiguous language, for example in its operative part, and have to react to it. This leads me to the special role of international courts and tribunals as VaA actors in international law. While I focus on the repercussions of the phenomenon of ‘judicialisation’ of international law viewed through the lens of VaA in section V., here I would like to highlight that international courts and tribunals, when interpreting the law and issuing a decision, are at the same time influential authors and audience of VaA. They may produce VaA, strategically or non-strategically, but they also have to deal with VaA as a problem, solution, opportunity, and challenge.54 Adding to the confusion are procedural mechanisms, present in one way or the other in most international adjudication, that enable courts or tribunals – absent a fully-fledged appeal mechanism and only upon application of either of the disputing parties – to interpret their own previous judgments.55 Examples are Article 60 ICJ Statute56, Article 33(3) ITLOS Statute57 or Article 50 Convention on the Settlement of Investment Disputes between

53 Either indirectly when understanding which privileges the contracting parties have granted each other or even directly, e.g. in case of most-favoured-nation clauses in Free Trade Agreements (FTAs). 54

See infra, III. E.

On the scope of such interpretation see Andreas Kulick, Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata, Leiden Journal of International Law (LJIL), 73 and infra, V. 55

56

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355.

Statute of the International Tribunal for the Law of the Sea (Annex VI of the United Nations Convention on the Law of the Sea), 10 December 1982, UNTS 1833, 396. 57

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States and Nationals of Other States (ICSID Convention)58. Here, (usually) non-strategic VaA production leads an international court, i.e. a standing body, to be both author and audience in the very same dispute.

C. VaA Forms

Let me next turn to what I call the forms of VaA in international law. Such forms describe different levels of abstraction in thinking about how VaA characterise and influence international law and international legal thinking. At the first, very high level of abstraction, the ‘ambiguous’ nature of international law as a discipline deserves some further attention. Koskenniemi has famously described what we may call substantive59 or structural ambiguity: torn between State will and a universal normativity, international law is inevitably and inextricably caught between these two opposing and mutually exclusive positions, i.e. apology and utopia.60 This is vexing precisely because international law (like any law), strives for clarity and its actors use a common professional syntax based on the assumption that this syntax constitutes “a fixed and highly determined set of discursive techniques.”61 As this contribution focuses on issues of interpretation in international law, such understanding of ambiguity is outside the scope of this present study and hence does not pertain to what VaA in the present context refers to. However, as we shall see with regard to the functions of VaA, this form of “indeterminacy is an absolutely central aspect of international law’s acceptability”62 and hence may indirectly affect certain issues of interpretation. A second, related feature in abstracto pertains to what we may call its epistemic lack of clarity. Considering the almost indefinite multitude of possible ways to look 58 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, UNTS 575,160.

See also Duncan Hollis, The Existential Function of Interpretation in International Law, in: Bianchi/Peat/Windsor (eds.) (note 15), 78, 83. 59

Koskenniemi uses the term ‘indeterminacy’, cf. Koskenniemi (note 35), 34–41, 590–596. See also supra, I. 60

61

Hollis (note 59), 78, 83.

62

Koskenniemi (note 35), 591.

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at international law, it is shaped and constantly being shaped by its actors, authors and audience,63 bringing to the table their different professional, educational, traditional, and cultural backgrounds.64 This becomes even more pertinent due to the emergence of distinct and separate ‘epistemic communities’,65 who share several or all of the aforementioned backgrounds and thereby shape specific sub-fields of international law because they view this sub-field, or even international law as a whole,66 through their individual lens. Human rights law or international investment law are examples for such closely-knit epistemic communities.67 Again, such epistemic lack of clarity is in itself not within the realm of the present study which is concerned with the interpretation of international law. However, where two or more of the aforementioned epistemic forces clash, this may bear on the interpretation of a legal norm and thereby we are at the laboratory of VaA as defined here. For example, the approach of the European Court of Human Rights (ECtHR) towards general public international law questions such as State responsibility for conduct of State-owned enterprises in Ališić and Others v. Bosnia and Herzegovina and Others is instructive. When discussing whether the respondent States had passive standing given that the acts in question were undertaken by State-owned banks, the Court ignored the customary rules on attribution of acts of non-State organs, in particular the work of the ILC culminating in the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts.68 Instead, it resorted to its own case law on the active standing of

63

See supra, III. B.

64

See Jean d’Aspremont, Epistemic Forces in International Law (2015), viii.

On the related but partly different concept of ‘interpretive communities’ see Fish (note 30), 147– 173 and Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory, Literary and Legal Studies (1990), 141; see also Michael Waibel, Interpretive Communities in International Law, in: Bianchi/Peat/Windsor (eds.) (note 15), 147, 151. 65

66

If, indeed, they do not hold the view that there is no such thing as ‘international law as a whole’.

See Stephan Schill, Ordering Paradigms in International Investment Law: BilaterlismMultilateralism-Multilateralization, in: Zachary Douglas/Joost Pauwelyn/Jorge Viñuales (eds.), The Foundations of International Investment Law: Bringing Theory Into Practice (2014), 109, 123; Waibel (note 65), 155; see also Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, American Journal of International Law 107 (2013), 45, 54. 67

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

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a State-owned entity as applicant and applied its finding in these cases mutatis mutandis to the issue of passive standing of the respondent States.69 Eventually, looking at the specific act of interpretation, there is what I may call VaA of norms and VaA of outcome. VaA of norms may take the form of one individual norm possessing or being ascribed several possible meanings. If the meanings are distinguishable, it is a case of ambiguity of norms, otherwise of vagueness. But VaA of norms may also take the form of norm conflict,70 i.e. one norm being propped up against another norm and thereby turn what seemed to be clear into at least two possible ways of interpretation.71 This is part of the context of a treaty clause and thus, despite being external to the treaty clause itself, must be taken account of in the interpretation process.72 However, not only the object of interpretation but also the outcome may be vague or ambiguous and hence trigger a new process of interpretation. Interpretation proceedings before international courts and tribunals are a practical emanation of this: What was intended to be the end of an interpretive act – a judgment – due to its (usually non-strategic) VaA production becomes the starting point of a new interpretative process.73 As this depends on the eye of the beholder, i.e. the audience of VaA, I refer in this regard to section III. B. D. VaA Functions

The functions of VaA pertain to strategic VaA production and are central to investigating VaA in international law. For the purpose of this study, I identified four 69 See European Court of Human Rights (ECtHR), Case of Ališić and Others v. Bosnia and Herzegovina and Others, Judgment of 16 July 2014, available at: http://hudoc.echr.coe.int/eng#{%22itemid% 22:[%22001-145575%22]} (accessed on 16 May 2017), in particular paras. 114–116. 70 See for a similar distinction, albeit pertaining to what he termed “unregulated disputes” in the English common law, see Joseph Raz, The Authority of Law (1979), 193.

Which, again, would be a case of ambiguity of norms, if the interpretations were distinguishable. On norm conflict see Joost Pauwelyn, Conflict of Norms in Public International Law (2003); Jan Klabbers, Treaty Conflict and the European Union (2009); Kammerhofer (note 12), ch 5; Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law (2014). See also infra, III. D. and VI. 71

72

Cf. Article 31(2) and (3), in particular Article 31(3)(c) VCLT.

See only Article 60 Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute); Article 33(3) Statute of the International Tribunal for the Law of the Sea; see also Kulick, (note 55) 73. 73

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such functions: (i) confusion and obscurity; (ii) flexibility; (iii) preservation; and (iv) inclusiveness. There is at least one major function lacking here, that is the exercise of power or, better, authority, which will be addressed in a separate part.74 Confusion and obscurity are characteristics that are commonly associated with VaA.75 This kind of strategic VaA production is being employed to undermine the operation of a norm. One example would be strategically created norm conflicts, i.e. VaA of norms in the form of norm conflict in the terminology of section III. C. In her recent book, “Strategically Created Treaty Conflicts and the Politics of International Law”, Surabhi Ranganathan refers to the policy of the US concluding so-called Bilateral Immunity Agreements (‘BIAs’) under Article 98 Rome Statute on the International Criminal Court (ICC)76 as a prime example for a strategically created treaty conflict. By concluding, as a non-ICC Member, such BIAs with Member states to the ICC the US did not merely succeed in exempting its citizens from the potential jurisdiction of the ICC but also created normative confusion among the ICC members thereby undermining the ICC regime from outside.77 However, besides such familiar but rather destructive VaA function, I posit there is an underestimated and – in legal thinking – underdeveloped constructive side to VaA. The first of these constructive functions to be mentioned is flexibility. VaA allow their actors to refrain from making a definitive choice for one or the other (exclusive) meaning. Treaty negotiators finding themselves in the tough position of having to reconcile at least two if not more different and even opposing positions enjoy the flexibility that VaA enable them to employ.78 Similarly, judges or arbitrators, usually in larger judicial panels such as the ICJ or ITLOS, profit from the same effect when they have to find a common denominator when phrasing the judgment in order to build a majority. Equally, a norm inhering more than one possible meaning gives judicial actors leeway79 74

See infra, IV.

And fall squarely within the aspect of VaA as associated by most lawyers, i.e. VaA as problem, see infra, III. E. 75

76

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90.

77

See Ranganathan (note 71), ch 5.

78

For an example see infra, VI.

See also, for the area of international investment law, Anne van Aaken, International Investment Law Between Commitment and Flexibility: A Contract Theory Analysis, Journal of International Economic Law 12 (2009), 507, 528–531. 79

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to pursue functions beyond mere dispute settlement and engage in judicial law-making or even in shaping (legal) policy.80 Finally, the preservation and inclusiveness function of VaA enhance a norm’s practical scope of application by enabling a larger number of participants to ascribe to it. For example, a multilateral treaty provision inhering several or in fact many possible meanings makes it possible for States to accept the treaty whereas they might have shied away from ratification had its wording been narrower (inclusiveness function). Had the term ‘family’ in Article 23 International Covenant on Civil and Political Rights (ICCPR)81 been narrowly defined as, say parents, siblings and grandparents, most European countries might still have been willing to ascribe to this whereas other societies would have found it unacceptable not to include, e.g., the second cousin.82 In similar vein, were such qualifier ever be included in the ICCPR, there might be some Arabic or Asian States considering terminating the ICCPR for such reason. The vagueness of ‘family’ hence furthers the preservation of the Covenant’s integrity too (preservation function).

E. VaA Aspects

Equally central to understanding VaA’s influence on international law-making and international legal thinking on interpretation are, eventually, what I may call the aspects of VaA, i.e. whether, from the perspective of the actors involved, they constitute a problem, solution, opportunity or challenge. The most common aspect (international) lawyers have in mind, as mentioned earlier,83 is viewing VaA as a problem: a government adviser, judge, or counsel confronted with an ambiguous or vague provision bestowed with the task of arriving at a decision or give advice may seek to resolve the vagueness or ambiguity. This is most pertinent in case of what Duncan Hollis has termed ‘existential interpretations’, i.e. a ‘binary’ situation (ambiguity) where the For further explanation on this contested notion of international judicial law-making that underlies these considerations see infra, V. 80

81

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171.

See only Sarah Joseph/Melissa Castan, The International Covenant on Civil and Political Rights – Cases, Materials and Commentary (2013), 668–673. 82

83

See supra, I.

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interpreter is confronted with two alternative readings of the law triggering a “process of deciding whether or not the subject of interpretation exists or has validity.”84 However, VaA may also constitute a solution instead of a problem. VaA can present the solution to a negotiation deadlock among the Contracting Parties to a treaty85 or with regard to the drafting of a resolution of an IO. A good example of the latter form of consensus-building arguably is UN General Assembly (UNGA) Resolution 1514 (XV) of 14 December 1960, the “Declaration on the Granting of Independence to Colonial Countries and Peoples.” With an emphasis on self-determination (in particular in paragraph 2) on the one hand and on territorial integrity in paragraph 6 on the other hand, it contains two principles that seem hard to reconcile – and proved to be. The same applies to the wording of paragraph 6 itself86 which could only find its way into the resolution by way of fudging the text to gain the vote of Guatemala and certain other countries.87 Moreover, VaA can present an opportunity. This aspect is the emanation of the constructive VaA functions, in particular flexibility. VaA enhance the options of interpretation and thus, for example, enable a court or tribunal to engage in judicial law- or policy-making. One good example of this is the creation of a demilitarised zone by the ICJ in the provisional measures order in the Temple interpretation case.88 Further, treaty negotiators enjoy the flexibility and inclusiveness of ‘constructive ambiguity’ without which many multilateral treaties would not be concluded.89 Also, as time passes VaA in a treaty’s language allow adaptations to new and unforeseen situations by way of evolutionary interpretation.90 As Christine Bell demonstrates, this 84

Hollis (note 59), 79.

85

See infra, VI.

See also in this regard the ICJ’s “inherent[ly] ambigu[ous]” (Malcom Shaw, The Western Sahara Case, BYbIL 49 (1978), 119, 148) statement in ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, 12, 53. 86

See Thomas Franck/Paul Hoffman, The Right of Self-Determination in Very Small Places, NYU Journal of International Law and Politics 8 (1976), 331, 370. 87

See ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, ICJ Reports 2011, 537. 88

89

See infra, VI.

See only Ulf Linderfalk, On the Interpretation of Treaties – The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (2007), 218–221. 90

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is especially important in the case of peace agreements where adjustments in light of unprecedented circumstances are pivotal to prevent armed conflict from re-surging.91 Finally, actors can view VaA as a challenge. Falling squarely in the middle between opportunity and problem, such a sub-category is intended to capture situations where VaA actors may find themselves at the turn of the tide or where it yet remains ambiguous (!) whether the specific VaA of a norm, judgment, etc. presents itself as problem or rather as opportunity. In that vein, VaA as a challenge also demonstrate that VaA aspects are not fixed but rather in constant flux. Whether the balance tips to the problem or opportunity side is highly dependent on the circumstances involved and the actors’ (both authors’ and audiences’) perspective.

IV. VaA and Authority VaA in (international) law possesses an inherently political potential. As expounded in section II., if we enter the interpretation of a text with certain preconceptions, looking at it through the lens of our societal, cultural, etc. situated-ness, we inevitably will adapt the meaning to our world view as meaning exists only within our ‘horizon’ – which is also shaped by our political conception of the world. In many instances this may happen inadvertently, i.e. non-strategically, but the political potential of VaA may also be used deliberately, i.e. strategically.92 This is not a new insight.93 As Koskenniemi reminds us, it is not so much the fact that a meaning can often be twisted in several different directions but rather that classical legal thought has shrouded such subjectivity in a language and demeanour of objectivity that makes interpretation such a powerful tool.94 VaA are the fuel on which this engine runs. Just 91

Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (2008), 167–169.

Of note, however, main proponents of hermeneutics such as Heidegger and Gadamer regard interpretation as a politically neutral act, see Jens Olesen, Towards a Politics of Hermeneutics, in: Bianchi/ Peat/Windsor (eds.) (note 15), 311, 312. 92

Cf., e.g., Nietzsche’s notion of the ‘will to power’ see in particular Friedrich Nietzsche, On the Genealogy of Morality (CUP 2006), 12, 112. 93

94 See Martti Koskenniemi, International Law and Hegemony: A Reconfiguration, Cambridge Review of International Affairs 17 (2004) 197, 199: “[T]he objective of the contestants is to make their partial view of that meaning appear as the total view, their preferences seem like the universal preference” (italics in the original); see also id. (note 35), 530–532. See also supra, II.

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look at the highly vague notion of ‘self-determination’ in international law95 employed as a means for Russia to justify Crimea’s secession from Ukraine and incorporation into the Russian Federation.96 Venzke has recently introduced the concepts of ‘semantic struggle’ and ‘semantic authority’ to international legal thinking in order to capture and better explain how law and legal interpretation may be used to exercise ‘authority’ – the term Venzke prefers over “power” or “hegemony”.97 ‘Semantic struggles’ denote the fight among the participants in (international) legal discourse vis-à-vis, e.g., the meaning of specific treaty clauses, the content of a customary norm or the scope of a legal concept such as ‘self-determination.’ As the weapons in such fight are not usually real ones but those of interpretation, i.e. semantics, linguistics, logic, reason, and practicality, among others, much depends on acceptance by way of persuasion. An actor’s way to nudge the understanding of a particular norm in her preferred direction depends, according to Venzke, on her ‘semantic authority’, i.e. her ‘capacity to influence and shape meanings as well as the ability to establish [her] communications as authoritative reference points in legal discourse.’98 A classical example99 would be permanent international courts such as the ICJ, whose judgments bear considerable authority vis-à-vis, e.g. the emergence of a rule of custom.100 Another one would be, to stay with custom, the recognition of a customary norm of international humanitarian law by the ICRC.101 95

See only James Crawford, The Creation of States in International Law (2007), 107–131.

See Vladimir Putin, Address by President of the Russian Federation, 18 March 2014, available at: http://eng.kremlin.ru/news/6889 (accessed on 19 August 2016); see also Lauri Mälksoo, Russian Approaches to International Law (2015), 2–3, 180–184; Brad Roth, The Virtues of Bright Lines: SelfDetermination, Secession, and External Intervention, German Law Journal 16 (2015), 385. 96

See Venzke (note 23), 63: “To have authority is distinct from having power in that it implies a certain degree of deferred judgment on part of others. It feeds on social legitimacy – on the general belief of society, which upholds that one should do what the authority says”. 97

98

Ibid.

99

For further examples see ibid., 64–71.

This cuts both ways. Note how it is often stressed that the precautionary principle has not accrued to customary status under international environmental law because the ICJ did not pick up on it in Gabčíkovo-Nagymaros. See ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7 and Sumudu Atapattu, Emerging Principles of International Environmental Law (2006), 287; see also Andreas Kulick, Global Public Interest in International Investment Law (2012), 228–230. 100

101

On this debated issue see, e.g. Aldrich (note 52) and Henckaerts (note 52). See also supra, III. B.

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VaA enable their actors, both authors and audience, to assert their semantic authority by choosing from the pool of possible ways to look at a norm or concept. Here, we come back to what I have termed above the ‘paradox of VaA’.102 VaA (of language, norms, etc.) enable the exercise of “semantic authority” in the first place but such exercise thrives on the premise that the audience considers that such exercise is to reduce VaA and to bring about clarity and objectivity – while the specific interpretations chosen may be no more than constructions taken from the pool of a myriad of possible meanings. Beyond making use of already existing VaA, actors may exercise their authority, “semantic” or otherwise, to strategically produce VaA where there is actual (relative) clarity. The NATO intervention against Serbia in 1999 was framed by NATO members as a permissible exception to the (then) relatively clear-cut UN Charter regime allowing use of force only in case of self-defence or as mandated by the UNSC under Chapter VII,103 based on humanitarian considerations. According to the line of argument employed then, international law cannot shield governments that deny a people self-determination and engage in ethnic cleansing or other massive human rights violations.104

V. VaA, Adjudication and the Judicial Function International courts and tribunals are central actors of VaA. As demonstrated in sections III. A. and B. above, they are both audience and authors of VaA, involved in VaA reception and in VaA production. A court judgment is meant to resolve a dispute that often arises over the meaning of a specific treaty clause, customary norm etc. and thereby intends to reduce vagueness and/or ambiguity. But such judgment also enjoys international normativity and thus is of a considerable law-making nature – among the disputing parties but usually also beyond.105 Such normative effect of a judgment, in 102

See supra, II.

Which is not to say that this regime was strictly being observed before 1999 or that humanitarian intervention is the only concept employed to justify the use of force beyond Article 51 and Chapter VII United Nations Charter, 26 June 1945, UNCIO 15, 335, see Christine Gray, International Law and the Use of Force (2008), in particular Chapter 2–5. 103

On this see generally Fernando Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (1988). See also Koskenniemi (note 94), 202–203. 104

105

Hernández notes how surprisingly uncontentious this notion is these days, citing such different

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turn, may produce VaA. With regard to the latter VaA manifestation by judicial actors I have already pointed at the judicial mechanism of interpretation proceedings as international adjudication’s response to non-strategic VaA production by courts. The judgment of the ICJ of 11 November 2013106 on the interpretation of its earlier judgment of 15 June 1962107 regarding the issue of territorial sovereignty over the area around the Temple of Preah Vihear at the border between Cambodia and Thailand is illustrative. The Court had decided, in the operative clause of its 1962 judgment, that Thailand was under obligation to withdraw all its armed forces from ‘the vicinity’ of the temple.108 Thailand understood this to mean merely the temple building themselves whereas Cambodia considered the temple’s ‘vicinity’ to include, inter alia, the entire promontory on which the temple was situated. This dispute over the interpretation of the Court’s judgment triggered armed hostilities between the parties that almost led to open armed conflict which only subsided once Cambodia seized the Court to interpret its judgment of half a century ago, pursuant to Article 60 ICJ Statute.109 While the Temple of Preah Vihear Case demonstrates the aspect as a problem,110 commonly associated with (in this case) ambiguity,111 the aspect of VaA as opportunity is particularly instructive with respect to international adjudication and the international judicial function. It enables judicial actors to choose from a variety of possible meanings or understandings of a legal norm or concept and thus puts them in a position to exercise a variety of judicial functions beyond mere settlement of the dispute at hand. International courts and tribunals may thereby take on the role of law- or policy-makers and thereby serve further-reaching functions such as the promotion of the international rule of law, the constitutionalisation of international law, authors as the likes of Dworkin, Kelsen and Lauterpacht, see Gleider Hernández, The International Court of Justice and the Judicial Function (2014), 87–93. 106

ICJ, Request for Interpretation of the Temple of Preah Vihear Judgment (note 6).

Id., Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962, 6. 107

108

Ibid., 37.

For a presentation of the arguments raised by the parties in both the original and the interpretation proceedings as well as the Court’s decisions and separate and dissenting opinions see Andreas Kulick, Zwischen Dogmatik und Rechtspolitik – Die Interpretationsentscheidung des Internationalen Gerichtshofs im Fall Temple of Preah Vihear, Archiv des Völkerrechts 51 (2013), 453. 109

110

See supra, III. E.

Since there were several distinct and distinguishable meanings of which areas may form part of the temple’s “vicinity”. 111

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the furtherance of democracy on the domestic and international level, or merely the politics of its own role within a treaty regime or the international community at large.112 Let me illustrate how international courts and tribunals employed VaA as opportunity by way of a recent example from international case law. This example derives from the field of international investment treaty law and arbitration. In the case of Poštová banka and Istrokapital v. Hellenic Republic, a Slovak bank and its Cypriot mother company, who had purchased financial interests in Greek Government Bonds (GGBs) in 2010, challenged the bail-out measures the Greek government undertook in 2012 as conditionality demanded by the so-called ‘Troika’ (EU Commission, ECB, IMF). These measures had forced the claimants to accept new terms to the GGBs, considerably reducing the value of their interest in the bonds as a consequence of this ‘hair-cut.’113 In the proceedings, one crucial issue pertained to whether the tribunal had jurisdiction ratione materiae under the applicable bilateral investment treaty (BIT), i.e. whether claimants actually had made an ‘investment’ in accordance with Article 1 BIT. The question arose, inter alia, because the claimants themselves did not hold direct rights in the GGBs but rather only had indirect interests in the bonds by way of several layers of intermediate traders. The relevant passage of Article 1(1) BIT read as follows: For the purposes of this Agreement: 1. “Investment” means every kind of asset and in particular though not exclusively includes: […] c) loans, claims to money or any performance under contract having a financial value, […]114

112 On these various judicial functions see Karen Alter, The New Terrain of International Law – Courts, Politics, Rights (2014), 9 et seq. On democratic legitimacy and international adjudication see generally Armin von Bogdandy/Ingo Venzke, In Whose Name? – A Public Law Theory of International Adjudication (2014). 113 See Poštová banka, a.s. and Istrokapital SE v. Hellenic Republic, ICSID Case No. ARB/13/8, Award of 9 April 2015, paras. 44–90. 114 Article 1(1) Agreement between the Government of the Czech and the Slovak Federal Republic and the Government of the Hellenic Republic for the Promotion and Reciprocal Protection of Investments, 3 June 1991, available at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/3515

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The tribunal basically had three interpretations to choose from. On its face, the wording of the chapeau is considerably broad: “every kind of asset” is an “investment,” adding an illustrative albeit not exclusive list of examples, including the above-referenced lit c). Therefore, one option for the tribunal to interpret the clause may simply have been to rely on the broad wording of the chapeau and hence treat also the GGB interests as “investments” according to the BIT. Notably, several tribunals in other investment disputes had already found that sovereign bonds constituted “investments” under similarly worded provisions in other BITs.115 If dismissing this line of argument, considering that otherwise the list following the chapeau would be redundant, the tribunal could have subsumed the GGB interests under the terms “claims to money.” While quite dissimilar in nature to a “loan”, it appears difficult to argue that a financial interest in government bonds does not at least constitute a “claim to money.” This interpretation presupposes, however, that one reads lit. c) as referring to three distinct notions of (a) “loans”, (b) “claims to money”, and (c) “any performance under contract having a financial value”. Instead, a semantically possible third reading is also that “under contract having a financial value” does not only refer to “any performance” but also to “claims to money” and maybe also “loans”. Only in the latter case was it possible for the tribunal to dismiss jurisdiction ratione materiae under the BIT, since the GGB interests did not establish contractual relations between the Hellenic Republic and the claimants. The tribunal – explicitly referring to the canon of interpretive rules enshrined in Article 31 VCLT – opted for this latter interpretation and unanimously found that the claimants’ GGB interests were not to be considered “investments” for the purposes of jurisdiction under the applicable BIT. Firstly, it stressed that “investor-State tribunals are [not] authorized to expand the scope of the investments that the State parties intended to protect merely because the list of protected investments in the treaty is not a closed list”116 and that “if the interpretation stops by simply indicating (accessed on 23 March 2017). Following the dissolution of Czechoslovakia, the Slovak Republic has succeeded as party to this treaty. See, e.g., Abaclat and Others v. Argentine Republic, ICSID Case No. ARB/07/5 (formerly Giovanna a Beccara and Others v. Argentine Republic), Decision on Jurisdiction and Admissibility of 4 August 2011, paras. 352, 354–357; Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9 (formerly Giordano Alpi and others v. Argentine Republic), Decision on Jurisdiction and Admissibility of 8 February 2013, paras. 488–495. 115

116

ICSID, Poštová banka (note 113), para. 288.

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that any asset is an investment, the examples [in the list of Article 1(1) of the applicable BIT] will be unnecessary, redundant or useless.”117 Instead, the tribunal reasoned, “the State parties to the treaty wanted an ample definition of what could constitute an investment, but within certain categories that are also broad, but not unlimited.”118 This is a prime example of – in this particular case, as “every kind of asset” has no distinguishable meaning, referring to any possible notion that is or may potentially be perceived an “asset” – vagueness reception: The arbitral tribunal, faced with a treaty clause potentially very broad (“every kind of asset”), chose to narrow the scope of what the applicable BIT would protect as an “investment.” Secondly, the tribunal dismissed the claim that the GGB interests constituted an asset protected under lit. c) of Article 1(1) either, arguing that the latter clause did not encompass “claims to money” per se but only such “claims to money […] under contract having a financial value.”119 Since no direct contractual relation existed between Greece and the claimants but the latter merely had acquired the GGB interests from third party traders, the claim must fail, so the tribunal held. While semantically possible, as mentioned earlier, this reading does not seem at all intuitive. Rather, it appears that “under contract having a financial value” is a qualifier relating exclusively to the otherwise extremely broad “any performance,” considering also that “having a financial value” is a redundant qualifier vis-à-vis “claims to money” and “under contract” is redundant regarding “loans.” Hence, in this instance the tribunal rather produced ambiguity by adding another semantically distinct reading of the treaty clause.120 The tribunal making use of, in this case, vagueness reception (regarding “every kind of asset” in the chapeau) and ambiguity production (regarding lit. c)) is particularly interesting with respect to the aspect of VaA as opportunity for an international court or tribunal to expand its judicial function, as concerns the underlying policy considerations that arguably drove the Poštová tribunal to choose this kind of inter-

117

Ibid., para. 294 (referring to the principle of effet utile (ut res magis valeat quam pereat)).

118

Ibid., para. 314.

119

Ibid., para. 343.

Admittedly, this qualification as ambiguity production is itself ambiguous, given that the clause was at least semantically ambiguous and thus the tribunal’s interpretation could equally be qualified again as ambiguity reception. 120

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pretation. The stakes were particularly high in this case as the claimants’ claim de facto constituted a fully-fledged attack against the rescue measures taken by Greece in response to the Euro crisis and would, if eventually successful, have potentially jeopardised Greece’s participation in the monetary union or the existence of the Euro zone altogether.121 Fully aware of the potentially severe economic and political consequences of an award in favour of the claimants, including setting a dangerous precedent, the tribunal arguably made the policy choice to stifle any attempt in this respect from the very outset and hence send a clear signal to all other holders of GGB interests that lost money due to the hair-cut. The broad wording of the chapeau of Article 1(1) BIT allowed the tribunal to choose among several potential meanings the one that served best its policy goal to narrow the scope of protection of what constituted an “investment” under the applicable treaty. In addition and for the same purpose, it created ambiguity vis-à-vis the interpretation of lit. c) of the same provision in order to be able to hold that the GGB interests were no “claims to money.” To conclude this section on VaA and international adjudication, the decisions and separate opinions of international courts and tribunals in themselves may finally also produce VaA as an opportunity. The necessity of building a consensus among the majority of the panel of judges or arbitrators requires compromise in choosing the wording of certain reasoning or the dispositif. A certain amount of vagueness and/or ambiguity may permit such consensus building. Further, the capacity of judges or arbitrators to write separate or dissenting opinions, declarations etc. contributes to illustrating the complexity of the judicial body’s internal deliberation processes. It also enables the judges or arbitrators to make bolder attempts than is possible with regard to the consensus-driven majority opinion in order to advance the law and thereby promote future debate that might eventually lead to a sea change in the legal opinion of the majority of commentators and/or stakeholders.122

121 On the political background see also Kyriaki Karadelis, Greece defeats sovereign debt claim, 14 April 2015, available at: http://globalarbitrationreview.com/article/1034373/greece-defeats-sovereigndebt-claim (accessed on 16 May 2017). 122

See on this Hernández (note 105), 95–98.

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VI. VaA Production and Reception in the Practice of International Law-Making: The Example of ‘Constructive Ambiguity’ In this final section, I will investigate a specific strategy in the practice of the creation of international norms in relation to VaA production and reception, so-called ‘constructive ambiguity.’123 In the context of international negotiations on the adoption of treaties, resolutions, etc., ‘constructive ambiguity’ describes the phenomenon of negotiators deliberately – i.e. usually deliberately on all sides of the negotiation table – inserting terms and phrases into the respective document that blur the meaning of the text in order to build consensus by getting all sides to commit to a final document that allows for everybody to ascribe it a meaning suitable for his or her purposes. Differently put, “Constructive ambiguity attempts to fashion agreement where there is none.”124 Within the terminology posited here, both ambiguity and vagueness may be constructed (and constructive) in the way described. What are the benefits of this strategy? The problems entailing ambiguity (or vagueness) are obvious and potentially disastrous: imagine, e.g., an armistice treaty that does not clearly define the front lines or a peace treaty that leaves vague the conditions to be fulfilled by either party in order to permanently withdraw military personnel from occupied land. ‘Constructive ambiguity’ “push[es] fundamental disagreement from the drafting stage to the implementation stage”125 which with respect to peace agreements may result in the opposite, i.e. war. On the other hand, often – and particularly if the question of war and peace is at stake – reaching an agreement is better than none at all, whatever its flaws. In this vein, VaA represent the solution126 to negotiation deadlock. Further, constructive ambiguity or vagueness make it possible for both sides to claim victory at the negotiation table without having to determine the victor in actual military confrontation. E.g. regarding trea-

123 Which, according to the above terminology established at I., is usually rather ‘constructive vagueness’. 124

Bell (note 91), 166.

125

Ibid.

126

See supra, III. E.

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ties, Article 2(ii) 1998 Belfast Agreement, ending decades-long violence between Irish Nationalists and British Unionists in Northern Ireland, states [T]hat it is for the people of the Island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self- determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.127

Not only the length but also the wording of this passage entails considerable vagueness. The Irish people’s right to self-determination made it in the same sentence as the emphasis on the will of the (British Unionist) majority, both lacking discrete potential meanings. However, as Christine Bell and Kathleen Cavanaugh observe Irish Nationalists get a reference to ‘the people of the island of Ireland alone,’ and British Unionists get a reference to the ‘consent of the majority’ of the people of Northern Ireland. Each side knows that it is a ‘fudge’ but can live with it, and ‘sell’ it to their own constituents as victory, or at least not a defeat.128

Furthermore, VaA mean flexibility,129 which is a valuable asset with regard to agreements that require a long period of implementation or in any case with ‘constitutional’ treaties that are supposed to establish a long-term framework. The more precise the language chosen the more specific it has to get and the more it is prone to loopholes or to leaving out the regulation of entire sets of issues that the Contracting Parties may not have been able to anticipate at the time of the conclusion of the agreement.130 Beyond treaties, ‘constructive ambiguity’ (or vagueness) plays a prominent role in the negotiations of resolutions of international organisations. Sticking with the particularly sensitive area of war and peace, the second example of constructive VaA

Good Friday Agreement, 10 April 1998, available at: https://www.dfa.ie/media/dfa/alldfaweb sitemedia/ourrolesandpolicies/northernireland/good-friday-agreement.pdf (accessed on 16 May 2017) (Belfast Agreement). 127

Christine Bell/Kathleen Cavanaugh, “Constructive Ambiguity” or Internal Self-Determination? Self-Determination, Group Accommodation and the Belfast Agreement, Fordham International Law Journal 22 (1999), 1345, 1356. 128

129

See supra, III. D.

130

See Bell (note 91), 169.

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pertains to UNSC Resolution 1973131 enabling the NATO intervention ‘Operation Unified Protector’ in Libya in 2011.132 Resolution 1973, together with its precursor Resolution 1970,133 was put in place as reaction to the atrocities committed by the crumbling dictatorship of Muammar al-Qaddafi in order to suppress civilian uprising and in response to the ensuing precarious humanitarian situation in Libya. During the long and tough negotiations among the members of the UNSC it was stressed by those delegations rather sceptical about authorising a NATO-led military intervention that such military intervention should be limited to alleviating the humanitarian crisis in Libya and by no means should turn into a full-scale operation targeted at regime change.134 The operative part of the resolution starts with demanding “the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians” and calling on the Qaddafi regime to respect its obligations under international law and to “take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance.”135 Moreover, the preamble of the resolution already emphasises that the situation in Libya constitutes a threat to international peace and security thus triggering action by the UNSC under Chapter VII UN Charter.136 Paragraphs 4 and 8 then give a robust mandate for the use of force (“all necessary measures”137) to all UN Member States willing to intervene unless they notify the UN Secretary-General: [The UNSC:] […] 4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of 131

SC Res. 1973 of 17 March 2011.

A similar example is SC Res. 1441 of 8 November 2002; see also Michael Byers, Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity, Global Governance 10 (2004), 165. 132

133

SC Res 1970 of 26 February 2011.

Only see the statements of the Brazilian, Indian, German, Chinese, and Russian delegations at the adoption of Resolution 1973, UNSC, The situation in Libya, UN Doc S/PV.6498 (2011), 5–8. 134

135

See supra, note 131, paras. 1 and 3.

136

Supra, note 131, recital 21 and 22 Preamble.

137

A term that is in itself a fine example of VaA as opportunity.

286 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; [...] 8. Authorizes Member States that have notified the Secretary-General and the SecretaryGeneral of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation with the League of Arab States to coordinate closely with the Secretary General on the measures they are taking to implement this ban, including by establishing an appropriate mechanism for implementing the provisions of paragraphs 6 and 7 above, [...].138

Despite the apparent robustness of the mandate with respect to the use of force there are also several considerable caveats and limits to it built into the text of the resolution. First, the use of “all necessary measures” is always linked to specific, rather limited goals (protection of civilians, enforcement of the no-fly zone). Second, paragraph 4 expressly “exclud[es] a foreign occupation force of any form on any part of Libyan territory.” Third, the 19th recital of the preamble “reaffirm[s] [the UNSC’s] strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya.” Obviously, all these caveats were consequence of the compromise among the P5 in order to get China and Russia to tolerate UNSC action in Libya against the Qaddafi regime.139 According to Beijing and Moscow, use of force for purposes of regime change were off limits. All these caveats, however, beg the question: how can the finding of a situation that threatens international peace and security, the acknowledgment of the serious atrocities committed by the Qaddafi regime, its blatant failure “to protect the Libyan population”140 and thus the resolution’s direct appeal to the notion of ‘responsibility to protect’141 (R2P)142 be reconciled with the rationale to prevent a full-scale military intervention for the purposes of regime change? 138

See supra, note 131, paras. 4 and 8 (emphases added).

See Constantine Antonopoulos, Legitimacy to Legitimise: The Security Council Action in Libya under Resolution 1973, International Community Law Review 14 (2012), 359, 371. 139

140

See supra, note 131, recital 4 Preamble.

141

See supra, note 133, recital 9 Preamble.

Catherine Powell notes that this was the very first time the UNSC expressly invoked R2P for the authorisation measures under Chapter VII UN Charter, see Catherine Powell, Libya: A Multilateral Constitutional Moment?, American Journal of International Law 106 (2012), 298. 142

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Apart from the vagueness of the underlying rationales of R2P and non-intervention the wording of the caveats for the permissible use of force against the Qaddafi dictatorship is ambiguous. Such VaA provided the opportunity for NATO, led by the permanent UNSC Members Great Britain, France, and the US, to use UNSC Res. 1973 for overthrowing Qaddafi nonetheless. Arguably, the resolution was already drafted strategically vague and ambiguous by those UNSC Members in the sense described. In any case, at least their VaA reception was strategic. VaA provided flexibility to NATO to interpret and subsequently apply the robust mandate in paragraphs 4 and 8 of Resolution 1973 in a manner that it could attack the regime and contribute to its demise while at the same time being able to argue that such attacks were within the confines of the mandate of the Resolution, i.e. for purposes of civilian protection and to enforce the no-fly zone. Particularly the first caveat, protection of the civilian population (paragraph 4), proved an ideal avenue to expand the scope of the mandate towards regime change.143 This is particularly so in light of the resolution’s other ambiguity of rationale. Given the passages referring and appealing to R2P, NATO was able to claim that its air strikes always pursued the aim – at least as the ultimate goal – to “protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya.” Since – another layer of, in this particular case, vagueness – paragraph 4 does not determine how directly or indirectly the use of force should be linked to the pursuit of this goal, almost any military action besides sending ground troops was at least defendable under Resolution 1973. Russia, who abstained but did not veto Resolution 1973, expressed concerns on the day of the voting over the potentially broad scope of paragraph 4, stating that it would “potentially open the door to large-scale military intervention,”144 something that it thought should be avoided at all costs. It thus recognised the resolution’s inherent VaA. Eventually, though, it did not block the resolution.145 However, the Libya intervention also teaches the limits and downsides of VaA as opportunity if it is employed semi-strategically – i.e. strategically only by one side – in a setting where the actors have to collaborate on a long-term basis. Merely half a year 143 This was heavily criticised by several Latin American States as exceeding the mandate of Resolution 1973, see UNGA, UN Doc A66/PV.2 (2011), 7–10. See also Antonopoulos (note 139), 371. 144

See UNSC (note 134), 8.

According to the Russian delegation, their decision not to veto the resolution was based on assurances by the resolution’s sponsors that they would not engage in a large-scale military intervention aimed at regime change, see ibid. 145

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after the adoption of Resolution 1973, on 4 October 2011, the Russian delegation vetoed a UNSC resolution with similar wording in regard to Syria, expressly referring to the (ab)use of the mandate for military intervention of civilian purposes in Libya to fuel regime change.146 The war in Syria has been continuing ever since without any meaningful action of the UNSC or joint action of the P5 thus far. VII. Concluding Remarks In this contribution, I have attempted to paint, with very broad strokes, a first sketch of how VaA can serve as a means of looking at and understanding issues of interpretation in international law and their relationship, among others, to authority147 and international adjudication and the international judicial function.148 While the aim of this study was first and foremost to introduce the concept, offer some analytical framework149 to systematise and use the framework introduced to scrutinise VaA in selected areas of international law and international legal thinking, this account is neither complete nor was it aspiring to be so. My central aim in this contribution, instead, was to illustrate the underestimated and under-scrutinised aspects150 of VaA in interpreting international law, including the role of VaA manifestations151 vis-à-vis international adjudication and international law-making. I submit that international law would benefit if VaA were moved from the periphery – as an unfortunate obscurity to be avoided – to the forefront of international legal thinking on matters of interpretation. See UNSC, The situation in the Middle East, UN Doc S/PV.6627 (2011), 4: “The situation in Syria cannot be considered in the Council separately from the Libyan experience. The international community is alarmed by statements that compliance with Security Council resolutions on Libya in the NATO interpretation is a model for the future actions of NATO in implementing the responsibility to protect. It is easy to see that today’s ‘Unified Protector’ model could happen in Syria [...] These types of models should be excluded from global practices once and for all.” The Syrian crisis has turned into a full-scale civil war with hundreds of thousands of casualties and almost five million refugees (see UNHCR, Syria Regional Refugee Response, available at: http://data.unhcr.org/syrianrefugees/regional. php (accessed on 20 November 2016)), with only faint prospects of betterment at the time of writing. This account sets a sober note to what more enthusiastic commentators have declared a “multilateral constitutional moment” regarding UNSC Res 1973, see Powell (note 142), 303–304. 146

147

See supra, IV.

148

See supra, V.

149

See supra, III.

150

See supra, III. E.

151

See supra, III. A.

What Came First: The Obligation or the Belief? A Renaissance of Consensus Theory to Make the Normative Foundations of Customary International Law More Tangible LANDO KIRCHMAIR

ABSTRACT: This article draws on the paradox of the two-element approach to the emergence of customary international law (CIL), as many have done so before. How can a State, acting in a certain way, be convinced of its legal obligation to behave in that manner, if this particular act has not yet been established as CIL, but is solely in the process of emerging? By stepping out of CIL theory and looking at similar conundrums, this article finds that consensus theory is the most prominent candidate for providing a solution. Against the common view, the argument offered here suggests that the most obvious flaws of this explanation are, actually, its greatest strengths. In brief, this understanding enables us to see Article 38 ICJ Statute as a means for identifying the final CIL norm, which is to be distinguished from its formal source. An unwritten meta-norm, as the argument goes, guides the process of CIL emergence. This meta-norm is the correct place to discuss what general (State) practice and opinio iuris must look like to count as making an offer and accepting that offer so as to finally give rise to a CIL norm. Consensus theory, thus, teaches us that we need to state more clearly how to evince general (State) practice with its accompanying legal conviction, a task which could and should be addressed by the International Law Commission. Based on this understanding, this article aims to propose a formula grounded in theory to guide the genesis of CIL. Clearly, asking for more specific rules guiding the emergence and succinct identification of general (State) practice and opinio iuris undermines the fluidity and dynamics of CIL. However, it is consensus theory that teaches us that legal certainty has its price. KEYWORDS: Customary International Law, Two-Elements Approach, Opinio Iuris Paradox, Consensus Theory, Article 38 ICJ Statute, Legal Theory, International Law Commission, Sources of International Law

Paper presented (due to a sports injury via video) at the McCoubrey’s Making International Custom More Tangible conference at the Law School of the University of Hull. I am furthermore grateful for discussions, comments, and helpful critique to Tamás Hoffmann, Thomas Rauter, Donald Riznik, Gábor Sulyok, Vassilis Tzevelekos, the editors, and two anonymous reviewers. Post-doc research and teaching associate at the Institute for Public Law and Public International Law at Bundeswehr University Munich.

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I. Introduction Even though so-called modern customary international law (CIL) has revolted against its traditional methodological underpinning, general (State) practice and opinio iuris are still the two elements necessary to identify CIL.1 But how do we deal with the eminent paradox that “the acts concerned amount to a settled practice” only become CIL if and when this practice is accompanied by “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it”2 (II.)? Hence, what came first: the obligation or the belief? This constitutes a conundrum which was already echoed by Aristotle (at least implicitly), albeit with regard to the question as to whether the chicken or the egg came first. However, we can still learn from this for our debate and understand CIL as an evolutionary process (III.). Firstly, we learn that lines are always hard to draw and legal definitions in particular are based on legally introduced conceptions to a great extent. Yet we need to draw the lines somewhere. As the argument goes, this is best illustrated by consensus theory, the most obvious flaws of which are defended here, namely the fiction of ‘tacit agreement’ and the question as to why new States are bound by CIL (IV.). However, consensus theory is not advocated as a superior truth but as an approach which best explains core questions relating to the normative foundations of CIL. As a consequence of this understanding, it follows that Article 38 Statute of the International Court of Justice (ICJ Statute)3 should not be understood as the definition of the ‘formal source’ of CIL and its genesis but as a means to identify the already established rule of CIL. A formal, unwritten meta-norm of creating CIL is assumed to exist as the normative foundation, which is somehow related to but not identical with Article 38 ICJ Statute. This meta-norm is the correct place to discuss the genesis of CIL and possibly inbuilt mechanisms such as ‘tacit agreement’, ‘persistent objectors’, and why new States are bound by CIL (V.). The frame of this meta-norm is consensus theory See International Court of Justice (ICJ), North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 77; as well as id., Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, para. 55 with further references. Cf. International Law Commission (ILC), Report on the Work of its 65th Session to the General Assembly, UN Doc. A/68/10 (2013), paras. 102 and 105; as well as id., Second Report on Identification of Customary International Law, UN Doc. A/CN.4/672 (2014), Draft Conclusion 2. 1

2

ICJ, North Sea Continental Shelf Cases (note 1), para. 77.

3

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute).

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understood as an ongoing, evolutionary process, which is simply required so as to be able to call a norm customary. In the end the suggested understanding of the genesis of CIL as an offer and acceptance within the framework of consensus theory helps make CIL more tangible when identifying it. Having defined the context, questions about the content of a CIL norm or the burden of proof might be seen more clearly (VI.). We might even face such claims as proposed in this article that we need evidence of general (State) practice following a specific formula as a guideline, asking, for instance, for a specific frequency of practice by one quarter of all potentially participating States, accompanied by statements reflecting opinio iuris – as a minimum. Clearly, this undermines the fluidity and dynamics of CIL. Yet we learn from consensus theory that legal certainty has its price.

II. The Classical Two-Elements Approach and the Prominent Paradox General (State) practice and opinio iuris are the two elements necessary to identify customary international law. They are to be found in Article 38 ICJ Statute, and have been succinctly confirmed by the jurisprudence of the International Court of Justice (ICJ), which clearly stated in the North Sea Continental Shelf Cases that “two conditions must be fulfilled [for] the acts concerned to amount to a settled practice”, namely practice must be accompanied by “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”4 Finally, the International Law Commission (ILC) and its Special Rapporteur Sir Michael Wood also favour the two-elements approach, asking for general (State) practice (consuetudo) and opinio iuris.5 Thus, the starting point for this article is the two-elements approach as well. The element of general (State) practice can be succinctly summarised as a longer lasting6 (ratione temporis) “constant and uniform” practice7 (ratione materiae) (possi4

See supra, note 1.

See ILC, Report on the Work of its 65th Session (note 1), paras. 102 and 105; as well as id., Second Report on Identification of Customary International Law (note 1), Draft Conclusion 2; and recently, id., Report on the Work of its 68th Session, UN Doc. A/71/10 (2016), para. 62, Conclusion 2. 5

See ICJ, North Sea Continental Shelf Cases (note 1), para. 74: “the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on 6

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bly) related to a geographical space (ratione loci).8 These components are relative with respect to each other, which is to say that they might be present in differently weighted proportions without diminishing the prerequisite of practice.9 Secondly, this practice must be borne by the conviction that it reflects a legal obligation (opinio iuris) in order to be considered as law instead of a practice which is legally irrelevant.10 In addition, it is possible that a CIL norm is limited regionally in terms of the presence of its elements.11 Thus, a CIL norm according to Article 38 (1) ICJ Statute is a general practice (consuetudo) borne by the conviction that it reflects a legal obligation (opinio iuris). The subjective element of opinio iuris is the conviction of States that they must follow a particular practice because they are legally obliged to do so. Yet if we do not concentrate on the identification of CIL alone but also consider its genesis, this understandthe basis of what was originally a purely conventional rule”. Cf. James Crawford, Brownlie’s Principles of Public International Law (8th ed. 2012), 24; Anthony D’Amato, The Concept of Custom in International Law (1971), 56 et seq.; and Michael Akehurst, Custom as a Source of International Law, British Yearbook of International Law (BYIL) 47 (1974–75), 1, 14. 7 Cf. ICJ, Asylum Case (Columbia v. Peru), Judgment of 20 November 1950, ICJ Reports 1950, 266, 276: “that the rule invoked […] is in accordance with a constant and uniform usage practiced by the States in question […]”. See also id., North Sea Continental Shelf Cases (note 1), para. 74: “State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked”; and id., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 186: “The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule”. Cf. Crawford (note 6), 24 et seq. 8 Cf. Robert Kolb, Selected Problems in the Theory of Customary International Law, Netherlands International Law Review 50 (2003), 133; Malcolm N. Shaw, International Law (7th ed. 2014), 58 et seq. For omission counting as State practice see Akehurst (note 6), 10 et seq.; and Jörg Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (2011), 67 with further references in footnote 40.

See ICJ, North Sea Continental Shelf Cases (note 1), para. 74; id., Military and Paramilitary Activities (note 7), para. 186; as well as Kolb (note 8), 133 et seq. 9

Cf. ICJ, North Sea Continental Shelf Cases (note 1), para. 77, opinio iuris is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates”. 10

11 Cf. Shaw (note 8), 65 et seq.; as well as Bruno Simma, Das Völkergewohnheitsrecht, in: Hanspeter Neuhold et al. (eds.), Österreichisches Handbuch des Völkerrechts, Vol. I: Textteil (4th ed. 2004), 33.

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ing proves to be contradictory. How is it possible for a new CIL norm to arise if any practice must already be supported by the belief of States that they are obliged to act in this way by an already existing rule of CIL? A well-known way to pass by this contradiction was simply to suppose12 that this first belief of States to be legally obliged to act in a certain way is an erroneous belief.13 This, however, was understandably criticised by Hans Kelsen as an unconvincing fundament for the emergence of CIL norms.14 Another understanding offered by Kelsen himself comes close to an evolutionary process – which I will discuss below15 – but nonetheless falls short of offering a solution to the core problem: He simply stated that the individuals “must believe that they apply a norm, but they need not believe that it is a legal norm which they apply.”16 The problem is only displaced. How this norm – whatever source it might have – evolves to a legal norm remains unclear. Hiroshi Taki still defended Kelsen’s approach.17 To overcome the “problem of error” and to explain how customary norms become international customary law he simply Or, as John Tasioulas, Opinio Juris and the Genesis of Custom: A Solution to the ‘Paradox’, Australian Yearbook of International Law (AYIL) 26 (2007), 199, added: “states mistakenly believing, or successfully pretending mistakenly to believe” (emphasis in the original). 12

13 See David Lefkowitz, (Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach, Canadian Journal of Law and Jurisprudence 21 (1) (2008), 129, 129 identifying François Gény, Methode d’interpretation et sources en droit prive positif (2nd ed. 1919), 367–371; with reference to Peter Benson, François Gény’s Doctrine of Customary Law, Canadian Yearbook of International Law 20 (1982), 267, as the first person to have proposed such an understanding. Cf. Hans Kelsen, Théorie du Droit International coutumier, (N.S.) Revue International de la Théorie du Droit 1 (1939), 263. Cf. also Bin Cheng, United Nations Resolutions on Outer Space: ‘Instant’ Customary International Law?, Indian Journal of International Law 5 (1965), 45, especially in footnote 107; as well as D’Amato (note 6), 66 et seq. 14 See Hans Kelsen, General Theory of Law and State (transl. Anders Wedberg, 1945), 114: “The usual interpretation of this requirement [opinio iuris] is that individuals constituting by their conduct the law-creating custom must regard their acts as determined by a legal rule; they must believe that they perform a legal duty or exercise a legal right. This doctrine is not correct. It implies that the individuals concerned must act in error: since the legal rule which is created by their conduct cannot yet determine this conduct, at least not as a legal rule.” This famous critique of the traditional understanding was labeled ‘the problem of error’ by Hiroshi Taki, Opinio Juris and the Formation of Customary International Law: A Theoretical Analysis, German Yearbook of International Law (GYIL) 51 (2008), 447, 452. 15

See infra, III.

See Hans Kelsen, Principles of International Law (1952), 307. However, not very far from what Kelsen criticised (and Taki labelled) as the problem of error, for him (ibid., 308) “custom is unconscious and unintentional lawmaking”. 16

17

Taki (note 14), 447.

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refers to a material distinction of practice: “[G]eneral and consistent usage becomes customary international law when its content is related to ‘a matter of international law’, but it remains as international comity and so forth when this is not the case.”18 Hence, the subjective element of opinio iuris is simply discharged and even though Taki himself offers the objection of Alfred Verdross19 pointing towards the high relativity of the judgement with regard to what is important for making something international law instead of a simple usage, he nevertheless seems to be satisfied with referring to the “entire positive international law”20 as sufficient guidance for such judgment. John Tasioulas’ solution to the paradox suffers from a similar problem despite being quite different in nature.21 His proposal to answer the challenge22 seems to overvalue the other element. Opinio iuris, for him, can be characterised as the creation of an international legal rule according to which the specified pattern of behaviour would be lawful is ethically justified. Such a legal rule should be created by means of a process that involves general state practice consistent with it and an ethical endorsement by states of its establishment as a legal rule.23

He thereby simply shifts the problem to the presupposition of “a broader, systemic ethical commitment on the part of a state”.24 Where the “moral attractiveness of a customary norm” as “a matter of objective truth”25 comes from and how it can be identified remains unclear. This might be an interesting approach for CIL norms in

18 See ibid., 461. Finally (ibid., 466), he joins Kelsen again by quoting that “in order to determine that customary international law has been established, one does not need to prove the presence of opinio juris, but only the presence of consciousness of ‘any norm whatever’”. 19 See ibid., 463, referring to Alfred Verdross, Das völkerrechtliche Gewohnheitsrecht, The Japanese Annual of International Law 7 (1963), 4. 20

See Taki (note 14), 461.

See Tasioulas (note 12); id., Custom, Jus Cogens, and Human Rights, in: Curtis A. Bradley (ed.), Custom’s Future: International Law in a Changing World (2016), 95. 21

Id. (note 12), does not call it a paradox, but a “serious flaw” because if States mistakenly believe that a specific behaviour is already legally valid this is not “self-contradictory” strictly speaking. 22

23

Ibid. (emphasis added).

To be fair to him, his goal seems to be to “harness customary international law to a global justice agenda”, ibid. 24

25

See id. (note 21), 105, footnote 20.

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the realm of global justice,26 but very likely must fail as a universal explanation for the emergence of CIL. Hence, we are still left with the trouble to explain how a binding norm becomes law.27 David Lefkovitz seeks to grapple this with reference to Hart’s rule of recognition.28 Arguably, his approach is the most sophisticated one in terms of aiming at an explanation for how mere usage becomes customary law. Lefkovitz explains that the paradox arises from the confusion that the agents who first have to believe in the existence of a customary rule (the first step) are the same agents whose adherence to the rule of recognition turns (in a second step) the customary rule into a legal rule of customary international law. Hence, he displaces the ‘law or not law’ question not towards some external, objective morality (Tasioulas) or the entire body of international law (Taki), but ‘(dis)solves’ it within one and the same agent. Whether we deem this to be a satisfactory solution or not is actually not particularly decisive for my argument here.29 My point here is that all these ‘solutions’ proposed refer – some more, some less implicitly – to an evolutionary process. In other words, the two-elements approach always was and still is faced with the paradoxical question of what came first: the obligation or the belief to be bound?30 This is also subject of the following conundrum which is said to have been first expressed by Aristotle in this way:

Which is – to be fair – apparently a key goal of Tasioulas (note 12). However, his critique of a rational choice theory of CIL solely focusing on preferences of States (id. (note 21), 98 et seq.: “But a preference, thus broadly understood, does not necessarily purport to identify a consideration that is even in principle capable of justifying the claim to legitimacy (moral bindingness) inherent in law”) can be returned to him. How to identify morally irrelevant customary norms as law? He seems to be somehow aware of this by considering “an objection to the foregoing analysis, one that takes issue with the liberal use of the adjective ‘ethical’ in characterising the beliefs and commitments” of States, id. (note 12). 26

27 Cf. Emily Kadens/Ernest A. Young, How Customary Is Customary International Law?, William & Mary Law Review 54 (2013), 885, 907: “The central problem of custom concerns the ‘extra ingredient’ necessary to transform a repetitive practice into a binding norm. And a central lesson of our historical discussion is that this has always been the central problem”. 28

See Lefkovitz (note 13).

To the contrary, I think for the purpose of my argument here it is safe to say that more precise criteria for identifying what the law, in our case customary international law, is, would be also welcome within the Hartian approach Lefkovitz (note 13) adheres to. 29

30

Shaw (note 8), 62 et seq. and D’Amato (note 6), 66 et seq.

296 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 If there has been a first man […] he must have been born without father or mother – which is repugnant to nature. [… For] there could not have been a first egg to give a beginning to birds, or there should have been a first bird which gave a beginning to eggs; for a bird comes from an egg.31

III. The Way Out: an Evolutionary Perspective This question has perplexed humanity for quite some time. One of the first said to have discussed this paradox, Aristotle proposed that the ‘actual’ chicken came before the ‘potential’ egg.32 The bible also suggests an easy way out as on day five God created “every winged bird according to its kind.”33 Finally, in 2010, the bible’s view was supposedly supported by its – assumed – opponent: hard science. An article on the protein ovocleidin-17 by researchers at the universities of Warwick and Sheffield, who used a supercomputer based in Edinburgh, were credited in the popular media for finally having settled the question.34 However, for us as lawyers the final say in this It is very likely that this famous quote stems from François Fénelon, Lives of the Ancient Philosophers (1825), 202 (translated from Abrégé des vies des anciens philosophes, Paris 1726, 314), while aiming to explain Aristotle’s thoughts as expressed in his Metaphysics, book Theta (9. 1049b: “since we have distinguished the several senses of priority, it is obvious that actuality is prior to potentiality”). Thus, very likely Plutarch was the first person to expressly use the example of the chicken and the egg in Quaestiones Convivales (2.3.2), see Plutarch, Morals (corrected and revised by William W. Goodwin, 1874), available at: http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2008.01.031 2%3Abook%3D2%3Achapter%3D3%3Asection%3D2 (accessed on 2 November 2016). I am grateful to Miklós Könczöl for pointing me to Plutarch. For this metaphor see also Lando Kirchmair, Die Theorie des Rechtserzeugerkreises: Eine rechtstheoretische Untersuchung des Verhältnisses von Völkerrecht zu Staatsrecht am Beispiel der österreichischen Rechtsordnung (2013). 31

See e.g. Edward Halper, Aristotle’s Metaphysics: A Reader’s Guide (2012), 87. Cf. Theosophy, Ancient Landmarks: Plato and Aristotle, Theosophy 27 (11) (1939), 483. Cf. Aristotle, Metaphysics, book Theta and the discussion of actuality and potentiality at 1049b. 32

33

See Genesis 1:21.

University of Warwick researchers Mark Rodger and David Quigley, in collaboration with colleagues at the University of Sheffield, were able to apply a powerful computing tool called metadynamics and the UK national supercomputer in Edinburgh to crack this egg problem. The conclusion was that the chicken had won the race as it claimed that it produced this special protein which is indispensable for creating egg shells. However, this can also be seen as a textbook example of how the popular media sometimes overstate research results in order to make them understandable and possibly also a bit more sexy. The crucial point of this chemistry article was quite different and the interesting point for us here is that this special protein was indispensable for creating chicken egg shells. Thus, this research project did not solve the question of the chicken/bird and the egg, but the chicken and the chicken egg (and to be fair to the researchers, they did not claim to have done so). See University of Warwick, Researchers Apply Computing Power to Crack Egg Shell Problem, 9 July 2010, available at: http://www2. 34

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discussion is actually not important. This holds especially true as the actual paradox is very much related to a core issue of us as lawyers, namely labelling and defining concepts and notions, something which is quintessential for us in order to be able to use and work with the concepts and definitions we constructed before. Thus, the chicken might be first, as we call this particular bird a chicken if it has specific chicken-like attributes, and the egg might be second, as we ascribe the ‘chicken egg’ specific attributes (including a specific characteristic of the egg shell which can only be produced by the protein ovocleidin-17). As a consequence, the chicken precedes the ‘chicken egg’.35 However, if we open up our definition of the ‘chicken egg’ slightly, being less strict about the concept of what we conceive as a ‘chicken egg’ and simply asking for a certain – albeit very thin – (egg) shell in which chickens can develop, we have to start from scratch.36 Thus, we rather strive for a different understanding, acknowledging an answer which is already to be found in the contradiction expressed in the statement attributed to Aristotle. To cut a long story short: We have known since Darwin that Adam and Eve were not the first humans but that we developed slowly but steadily from homininae to homini. The scientific perspective enables us to overcome the creationist position of Adam and Eve as the first humans by thinking of the genesis of humans as an evolutionary process. In the same vein, it is obvious that the chicken neither fell from heaven nor hatched from a mysterious first egg but has its ancestors in other creatures. Thus, we as lawyers neither must take up the solution offered by Aristotle37 nor do we have to deal with what natural scientists did find.38 We can stop the natural

warwick.ac.uk/newsandevents/pressreleases/researchers_apply_computing/ (accessed on 2 November 2016). See Colin L. Freeman et al., Structural Control of Crystal Nuclei by an Eggshell Protein, Angewandte Chemie International Edition 49 (30) (2010), 5135. See also for a concise explanation Christopher M. Langan, The Art of Knowing: Expositions on Free Will and Selected Essays (2002), 97 et seq. He first, in order to prevent ambiguities, rephrases the question into four, more precise questions: “1. Which came first, the chicken or (just any old) egg? 2a. Which came first, the chicken or an egg laid by a chicken? 2b. Which came first, the chicken or an egg containing a chicken? 2c. Which came first: the chicken, or an egg laid by and containing a chicken?” The answers to these questions are “(1) The egg. (2a) The chicken. (2b) The egg. (2c) The chicken”. 35

36

Cf. ibid.

37

See supra, notes 31 and 32.

38

See supra, note 34.

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science debate here,39 learning for our case that neither a pre-existing obligation nor a mistaken belief is the key to our puzzle. Instead, the evolutionary process is as follows: A certain practice of a State might be adequate practice without already supporting the belief that the State is legally obliged to act in this way. The subjective element opinio iuris might be added as time goes by and other States act similarly and thus adjust their acts.40 Slowly but steadily, as time passes, a subjective conviction of a legal obligation can arise. Nothing else is expressed by the term ‘custom’, which implies a sort of repetitive, spatial component. This evolving process is the prerequisite for the emergence of a CIL norm. However, the paradox is not fully solved by this differentiated perspective. The fast pace of current times also provides challenges for the law as a regulatory phenomenon. Even if custom implies a certain duration, the rapidly changing world supports the call for a more rapidly emerging CIL.41 However, the faster the process is, the more questionable the explanation just given becomes. The more spontaneous or quicker the evolution of a CIL norm is, the more important the requirements for a conscious legal process will be. Guidance for the identification of quick and consciously emerging CIL norms (as well as for more slowly emerging ones) is – as the central argument of this article goes – provided by consensus theory.

IV. A Renaissance of Consensus Theory What we can learn from this evolutionary perspective is the importance of distinguishing between the emergence of CIL norms and the identification of that final product. The latter is only possible once the process of genesis has been finalised. Yet the line between emerging and existing customary international law is hard to draw.42 For those interested in an overview, see Renée Schroeder, Die Henne und das Ei: Auf der Suche nach dem Ursprung des Lebens (2011), 81 et seq. 39

40 Cf. Brian D. Lepard, Customary International Law: A New Theory with Practical Implications (2010), 112, who suggested that “opinio juris be interpreted as a requirement that states generally believe that it is desirable now or in the near future to have an authoritative legal principle or rule prescribing, permitting, or prohibiting certain state conduct.” See also id., Customary International Law as a Dynamic Process, in: Bradley (ed.) (note 21), 62. 41

See Cheng (note 13), 23. For a critical view see Simma (note 11), 36.

42

Cf. also Kammerhofer (note 8), 80 et seq.

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However, precisely such a line is at the core of any law-making process: We need to call norms law at some point in order to ascribe them their special consequences (like their binding nature, often combined with sanctions or the threat of them in the event of non-compliance).43 The argument in this article is that consensus theory does the best job of, firstly, highlighting that this point is crucial, and secondly, even proposing guidance as to how such line-drawing with regard to customary law is best addressed. Consensus theory here is simply understood as the need for acceptance of the formation (or modification) of a CIL norm in order to create customary international law, whereas for the identification (and preservation) of a CIL norm a belief that some customary norm is law is sufficient.44 Understood in this way consensus theory is therefore not as demanding as consent theory. Whereas the latter asks for straight forward consent to a rule, the former is more open towards tacit agreement of some States complementing explicit consent expressed by other States.45 The consent of those States which do not explicitly consent to a certain CIL norm is according to consensus theory included already in the meta-norm of regulating CIL emergence.46 The subjective element of opinio iuris is understood as explicitly or implicitly expressing the acceptance of the offer of a specific practice by its repetition (or non-objection).47 Instead of asking for explicit consent of a State, the offer of a raised claim can also be accepted through tacit agreement. To be more specific, the formula proposed 43 Cf. Niklas Luhman, Soziale Systeme. Grundriß einer allgemeinen Theorie (1984), which reduces law to a binary code of law and non-law. 44 Cf. ILC, Second Report on Identification of Customary International Law (note 1), para. 66: “In particular, some have debated whether the subjective element does indeed stand for the belief (or opinion) of States, or rather, for their consent (or will).” With further reference in footnote 206 to the ILA London Statement of Principles, 30: “It is possible to achieve an elision or apparent reconciliation of these two approaches by using such terms as ‘accepted’ or ‘recognized’ as law.” Cf. for a critique of explicit consent as unanimity requirement with regard to CIL Andrew T. Guzman/Jerome Hsiang, Reinvigorating Customary International Law, in: Bradley (ed.) (note 21), 275, 281 et seq. See also Oliver P. Hauser et al., Cooperating with the Future, Nature 511 (2014), 220.

Cf. Lefkovitz (note 13), 142: “It is consensus, not consent, that provides the basis for social norms.” However, see critically Tasioulas (note 21), 103, in particular footnote 17: “The failure to distinguish consent from consensus is ubiquitous, even among critics of voluntarism”. 45

46

See infra, note 82 and accompanying text.

See infra, V. C. Cf., for instance, on the persistent objector rule James A. Green, The Persistent Objector Rule in International Law (2016), 273, quoting Max Sørensen, Theory and Reality in International Law, Proceedings of the American Society of International Law 75 (1981), 140, 147: “the persistent objector rule can ‘reasonably claim a permanent place [in the system] even when the positive emphasis in the law-creating process is shifted from consent to the less rigid notion of consensus’”. 47

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below implies that a specific fraction of States has to accept via practice and opinio iuris, and other potential actors give their tacit agreement if they do not persistently object.48 Such broad understanding including the concept of acquiescence is consistent with the notion of ‘acceptance as law’ as opposed to ‘belief that something is the law’ and, hence, is consistent with the approach of the ILC.49 However, note that the ILC report speaks of “accepted as law”, which of course, is only accurate in terms of identifying CIL, but traps into the CIL paradox with regard to CIL emergence. Consensus theory, thus runs the argument, is the only convincing theory to handle the aforementioned paradox, while still remaining within the two-elements approach.50 Yet consensus theory is not advocated as a superior truth but as an approach which best explains core questions of the normative foundations of CIL.51 The suggested understanding of the genesis of CIL as offer and acceptance within the framework of consensus theory shall help, in the end, to make CIL more tangible.52 Hence, I do not aim at a theoretical ‘solution’ of the paradox. I am satisfied with highlighting the troublesome point of CIL norm emergence in theoretical terms and as a consequence ask for practical guidance in order to diminish uncertainty with regard to CIL norm emergence and, subsequently, identification.53 Consensus theory forces us to provide more concrete criteria for clarifying when exactly a certain CIL norm came to existence. Without such clarification the identification of CIL norms is Cf. Alain Pellet, Article 38, in: Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed. 2012), 731, para. 225, with further reference to the travaux préparatoires of the Statute of the Permanent Court of International Justice in footnote 615 quoting Baron Descamps and Root. Cf. also Karol Wolfke, Custom in Present International Law (1964), 56, who holds that CIL is “a continuous process of raising mutual claims and the adoption of an attitude to such claims”. 48

49 See ILC, Report on the Work of its 68th Session (note 5), para. 62, in particular Conclusion 9. The wording in Art. 38 (1)(b) ICJ Statute speaks of “accepted as law”, which is solely expressing the applicable law for the ICJ and guides the identification of a CIL norm (cf. infra, note 82 and accompanying text). For the emergence of a CIL norm we have to reconstruct the actual meta-norm for CIL emergence according to the identification of CIL regulated in Art. 38 ICJ Statute. Therefore the notion of ‘acceptance as law’ for CIL emergence is the most suitable one. 50

Cf. supra, III.

Cf. Alfred Verdross, Entstehungsweisen und Geltungsgrund des universellen völkerrechtlichen Gewohnheitsrechts, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 29 (1969), 636. 51

52

See infra, V.

Hence, the aim is not “to try to fit the round peg of voluntarism in the square hole of social reality”, as Green (note 47), 249, has eloquently put it. 53

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nebulous and remains troublesome. This does not exclude the possibility that a State might act in the erroneous belief that it is legally obliged to act in a certain manner (as was proposed to explain the emergence of CIL).54 However, the evolutionary view minimises such erroneous acts to a negligible degree. With regard to this article, a formal source of law is simply understood as the settlement of procedural criteria aimed at making law.55 Such a formal source thus eases the identification of law as it regulates which procedures or elements might deliver legal rules (and which might not). In the process some relevant features of law-making such as, for instance, majority voting might be established.56 Again, it is important to differentiate sharply between the process of emergence and the identification of the new-born CIL rule. In this vein – as a by-product – it is interesting to see that it is important to distinguish between the content of a rule, or better, what someone wants the content to be like (i.e. the final result), and the process describing how we can achieve this result. As a consequence of this insight, we need to strive to somehow disconnect the result of the process from what we want the result to look like.57 Sharply distinguishing between the emergence and the identification of a CIL norm is crucial but rather problematic as CIL is largely unwritten and even the weighting of both necessary elements is controversial.58 This gives rise to many uncertainties regarding, for instance, which acts qualify as State practice,59 which in turn makes it harder to identify the element as such.60 With regard to CIL the difficulties are connected with those formal criteria as they are not clearly regulated. Thus, as a 54

See supra, note 14.

55

See also Kirchmair (note 31), 68 et seq.

Cf. also Maurice H. Mendelson, The Subjective Element in Customary International Law, BYIL 66 (1996), 177, 190: “But given that States have in fact consented to the existence of a system of international law as a whole […] it does not necessarily follow that the creation and binding force of each individual rule in the system is dependent on the consent of each and every subject at each and every moment. […] It is States, as the principal subjects of the systems, who decide what processes will be recognized as generating rules of law. If they chose, they could recognize papal pronouncements or the randomly generated choices of a computer, say, as sources of legal obligation”. 56

57

See Jeremy Waldron, Law and Disagreement (1999), 88–118.

See also 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 (2004), 523. 58

59

For an overview on the discussion see Kammerhofer (note 8), 62 et seq.

60

Cf. ibid., 68 et seq.

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consequence, identification is a virulent problem, too.61 The identification of a CIL norm is, at its core, a cognitive problem, which can be eased by describing the procedure by which certain acts qualify as CIL. Exactly this description of certain criteria is usually accomplished by a formal source of law. Consensus theory presses us to acknowledge this. The goal of this article is to propose that consensus theory can help to overcome or at least deal with these well-known difficulties more easily if its theoretical pursuit is taken serious in the practical realm. Thus, simply put (and idealised), by acting in a certain way, a State is suggesting that this specific consuetudo could become law if it is accepted by further States.62 Those States that adjust their behaviour to the offer agree and as a consequence CIL emerges.63 In theory the paradox is explained, even in the event of spontaneously emerging CIL.64 In this manner CIL is established by confirming State practice borne by the will to accept the offer. This understanding is reflected by consensus theory.65 The importance of this insight is not only theoretical. On the contrary, the theoretical challenges reflect practical problems.66 Hence, this See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), 431, who asks hypothetically whether uncertainty with regard to CIL would diminish if it were clear which acts count as State practice and how they can be evinced. 61

See Raphael M. Walden, The Subjective Element in the Formation of Customary International Law, Israel Law Review 12 (1977), 344, 355: “The tacit consent theory, in all its forms, has the great merit of recognising the constitutive nature of custom”. 62

63 Similarly Shaw (note 8), 62: “If a state proclaims a twelve-mile limit to its territorial sea in the belief that although the three-mile limit has been accepted law, the circumstances are so altering that a twelve-mile limit might now be treated as becoming law, it is vindicated if other states follow suit and a new rule of customary law is established. If other states reject the proposition, then the projected rule withers away and the original rule stands, reinforced by state practice and common acceptance”. Cf. Sir Humphrey Waldock, The Legal Basis of the Continental Shelf, Transactions of the Grotius Society 36 (1950), 115, 138 et seq., who describes the process as: “[…] an invitation to other States to join in a deliberate and legislative development of customary law”. 64

For the thesis that erroneous belief is necessary for the emergence of customary law cf. supra, note 13.

For a recent overview with further references see Green (note 47), 239–273. See also Verdross (note 51), 636 et seq. Cf. Grigory I. Tunkin, Remarks on the Juridical Nature of Customary Norms of International Law, California Law Review 49 (3) (1961), 419; Gennady M. Danilenko, The Theory of Customary International Law, GYIL 31 (1988), 9; Olufemi Elias, The Nature of the Subjective Element in Customary International Law, International and Comparative Law Quarterly (ICLQ) 44 (1995), 501; Karol Wolfke, Custom in Present International Law (2nd ed. 1993), 57. For a critical view see Kolb (note 8), 144: “some form of organic law-making through practice […] involving some mixture of willelements (opinio iuris) and non-will elements (general practice binding all states)”. 65

However, see ILC, Second Report on Identification of Customary International Law (note 1), para. 66: “The subjective element of customary international law has, however, ‘created more difficulties 66

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article seeks to demonstrate how such practical consequences of taking consensus theory seriously might look like.

V. Practical Implications of Consensus Theory A. The Challenge of Tacit Agreement and the Necessity to Distinguish the Identification of CIL Regulated in Article 38 ICJ Statute from the Emergence of CIL Guided by a Meta-Norm

Probably the most common and obvious criticism directed against consensus theory to explain CIL is that a large number of States which do not actively engage in practice are nonetheless bound by the established norm.67 Firstly, we have to distinguish this desire for active practice from active practice in the form of an omission (still counting as practice).68 However, considering the rather limited frame of omissions, the objection still holds. Thus, secondly, another response to this challenge is that a State might express its objection against the emerging norm. If it does so persistently, it is not bound by the new CIL norm. Overstating the point, one could argue that a State might even opt to remain silent and thereby agree to be bound. Whether this is a good illustration of a tacit agreement remains to be seen. However, the relevance of consensus decreases (and the objection against tacit agreement increases) the less States actively participate in practice.69 This becomes especially obvious if the topics concerned are deemed to be of utmost relevance although they have not yet been regulated in positive law. Hence, the temptation is strong to deem such fundamental norms as ‘given’ CIL,70 thereby bypassing the evidence of such in theory than in practice’, and the theoretical torment which may accompany it in the books has rarely impeded its application in practice.” However, see for a critique of such “knee-jerk pragmatism” Tasioulas (note 21), 95. 67 See for example Kelsen (note 16), 311. Cf. Ian C. MacGibbon, Customary International Law and Acquiescence, BYIL 33 (1958), 130: “[I]n the early stages of the development of a customary right other States are faced with the choice of objecting or remaining passive. From their inaction the inference of consent in and acceptance of the validity of the claim may be drawn”. 68

See supra, note 8.

69

Cf. Kammerhofer (note 8), 77.

70

Ibid., 78 et seq.

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norms.71 As an answer, some scholars proposed that only those States might acquiesce silently which knew or could have known of the emerging CIL norm (“potentially affected States”)72.73 Still, critical voices question silent acquiescence.74 To satisfy these critical voices, an additional response is to point towards the freedom of States to establish a formal source with regard to CIL allowing for such a tacit agreement.75 Thus, once such a formal source has been established, it is possible that tacit agreement features CIL in a similar way as it is possible to establish a formal source for ‘majority decisions’. If we include the idea of acquiescence in the frame of the formal source, we can deal with this sort of criticism. In positive words, the formal source includes an authorisation for ‘active States’ and their practice, giving them the power to bind also inactive States (if they do not disagree persistently).76 To address remaining scepticism, an analogy to the ‘first constitution’ of a State might be persuasive. Social contract theory is confronted with similar objections. Criti71 Cf. similarly D’Amato (note 6), 218 et seq.: “The root of the problem may involve an age-old device of political philosophers who, to add to their own persuasiveness, claim that the behavioral norms they set forth are in fact obeyed by mankind in general. Marx, Hobbes, Hegel, and Austin, among many others, have attempted to show ‘scientifically’ that what ought to be the case is in fact the case, and that nothing the reader may do will derail what the writer perceives as historically inevitable. So too McDougal argues that the Lasswellian values not only should be accepted by all reasonable and decent men, but in fact they are so accepted throughout the world. What, then, if someone rejects them? McDougal would consign such men to the extra-legal world, much as Rousseau, for example, solved the problem of dissent in his Social Contract by banishing the dissenters from the body politic”. I leave it to the reader’s imagination at this point as to which norms of modern CIL could be particularly affected. 72

See infra, note 127 and accompanying text.

See Mendelson (note 56), 186 with reference to ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116, paras. 138 et seq.; cf. also Shaw (note 8), 63 et seq. 73

74 Kammerhofer (note 8), 78, regards acquiescence as a “legal fiction”. Cf. also Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (1999), 143 et seq.; as well as Mendelson (note 56), 186 et seq.; and Torsten Gihl, The Legal Character of Sources of International Law, Scandinavian Studies in Law 1 (1957), 79. 75

See supra, note 56.

For a pragmatic description see Gerald G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law, BYIL 30 (1953), 1, 68: “Where a general rule of customary international law is built up by the common practice of States, although it may be a little unnecessary to have recourse to the notion of agreement (and a little difficult to detect it in what is often the uncoordinated, independent, if similar, action of States), it is probably true to say that consent is latent in the mutual tolerations that allow the practice to be built up at all; and actually patent in the eventual acceptance (even if tacit) of the practice, as constituting a binding rule of law”. 76

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cism holds that such a fundamental consensus (empowering active States in our case) is utopian and thus fictive. However, this was already answered by Immanuel Kant when he openly admitted the fictive element of such a contract.77 Actually the very first consensus, as the argument goes, is (fictively) assumed and deals with accepting a majority decision even with regard to the very first constitution.78 This preceding consensus is based on the assumption that all subjects involved are in agreement that having any constitution is in the interests of all. In other words, the very first consensus (whether fictive or tacit is blurry and not of utmost importance) is that we need some agreement, which is better than unregulated chaos. Thus, even if the ‘first constitution’ is not the desired result of all subjects involved, people are united in the belief that they are in need of a constitution.79 As a consequence we should not ask those individuals who did not vote for the concrete result (‘the actual first constitution’) whether they agree on the specific content of this very first constitution. Rather, the question should be whether the very first (tacit) consensus (acceptance of the majority decision in order to have any constitution) leading to the first constitution is to be opposed with the alternative of unregulated chaos. Being confronted with the choice of chaos or constitution, most of the disagreeing minority will probably agree. Yet if the result of the majority ‘compromise’ goes too far, forcing a minority to prefer chaos, for instance, we are faced with a (smaller but still existent) problem regarding the ‘first constitution’. Luckily we can step out of our metaphor now, because with regard to CIL we have the concept of persistent objection to deal with this problem.80 Returning to our topic, we have learnt three things from the theoretical discussion on the foundations of CIL. Firstly, that the necessity of CIL for a working international legal order can be perceived as a common foundation unifying all States, so See Peter Koller, Neue Theorien des Sozialkontrakts (1987), 14, who makes reference to Immanuel Kant, Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis (1793), 153. 77

78

Whether explicit, tacit, or fictive might be left open here.

For an interesting line of a similar argument regarding majority decisions and the authority of legislation see Waldron (note 57), 159–160. 79

Cf. ICJ, Fisheries Case (note 73), 131; id., Asylum Case (note 7), 277 et seq. Cf. Akehurst (note 6), 25 with further references in footnotes 5 and 6; as well as Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, Harvard International Law Journal 26 (1985), 457. For a critical perspective see Jonathan Ian Charney, The Persistent Objector Rule and the Development of Customary International Law, BYIL 56 (1985), 1. For a recent, comprehensive account see Green (note 47). 80

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important that the concept of silent acquiescence is accepted. Secondly, the danger of being bound by inactive behaviour is relativised by the possibility of expressing persistent objection.81 If a State persistently objects, it simply rejects the offer. Thirdly, uncertainty with regard to silent acquiescence can also be differentiated from the metaphoric example of the ‘first constitution’ as the formal source of CIL has its basis in positive international law. Hence, with regard to CIL, such a formal source in positive law does exist, but it is not Article 38 (1)(b) ICJ Statute, which is regulating how CIL emerges. Thus, it does not deal directly with the process of how CIL emerges.82 Still, Article 38 determines how to identify the result of the formal CIL source and can and must, therefore, be used in order to reconstruct the formal source leading to this result.83 In other words, Article 38 is a cornerstone for the identification of CIL and at least a touchstone regarding the emergence of CIL. And it allows for a reconstruction of this formal source as it establishes how to identify CIL, which outlines the prerequisites of emerging CIL norms. The foundational consensus regarding CIL as a source of international law includes the concept of acquiescence with regard to emerging CIL norms.84

81 See Charney (note 80), 16: “It is difficult to see how the acceptance of the [persistent objector] rule does not reflect an acceptance of the consent theory of international law. If a mere objection to an evolving rule of law can prevent application of that rule to the State, then each State has the unilateral power to decide whether or not to be bound by the rule.” However, see Kolb (note 8), 144, who asserts that “[i]f customary law were really voluntary, the whole doctrine of the persistent objector would be useless.” Yet it is possible to understand the doctrine of persistent objectors – analogously to the burden of proof – as a sheet anchor. As Nils Petersen, The Role of Consent and Uncertainty in the Formation of Customary International Law, Preprints of the Max Planck Institute for Research on Collective Goods Bonn (2011/4), 2, points out, treaty law can be perceived as an ‘opt in’, and customary law as an ‘opt out’ system.

See also with regard to Art. 38 ICJ Statute in general Pellet (note 48), para. 80 with further reference in footnote 180, among others to Sir Robert Y. Jenning/Sir Arthur Watts, Oppenheim’s International Law (9th ed. 1992), 24; Sir Gerald Fitzmaurice, Some Problems Regarding the Formal Sources of International Law, in: Frederik Mari van Asbeck et al. (eds.), Symbolae Verzijl (1958), 153, 176; Jean d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (2011), 149. 82

83 However, see ICJ, Jurisdictional Immunities (note 1), para. 55: “It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the existence of ‘international custom, as evidence of a general practice accepted as law’ conferring immunity on States and, if so, what is the scope and extent of that immunity. To do so, it must apply the criteria which it has repeatedly laid down for identifying a rule of customary international law” (emphasis added). 84

See supra, note 47.

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This is also very much related to the paradox discussed above. Precisely this paradox was the reason why many commentators have described the formulation of Article 38 (1) ICJ Statute as unfortunate.85 However, considering the arguments just presented, this is not convincing. The definition in Article 38 presupposes what some commentators want to get out of it: As the ICJ might only identify already existing norms of CIL, the purpose of the ICJ Statute is ‘only’ to define how to identify the result of the formal sources of international law.86 In other words, the nature of the ICJ Statute is to define applicable legal sources and not to establish or regulate the genesis process of the same sources. Thus, a court only needs to find “whether the fruit is ripe, not when it ripened”.87 This is also an important difference with regard to national constitutional orders, where usually the law-making process of national laws is clearly regulated, or with regard to international treaties as a source of law, which are governed by the Vienna Convention on the Law of Treaties. The unwritten formal source of CIL stands in contrast to this.88 From Article 38 (1) ICJ Statute we can only reconstruct the formal source of CIL and thus the emergence procedure.89 This reconstruction, however, can lead us to the formal source, which is an 85

See for instance Verdross (note 51), 649, especially in footnote 67; Simma (note 6), 33.

For a similar argument (albeit with Art. 53 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT) in mind) see Ulf Linderfalk, The Creation of Jus Cogens: Making Sense of Article 53 of the Vienna Convention, ZaöRV 71 (2011), 359. 86

For such a metaphor see Mendelson (note 56), 179 in footnote 9: “[A] court need only decide whether the rule had come into being for the parties at the ‘critical date’ (or equivalent) – in other words, whether the fruit is ripe, not when it ripened”. See also Fitzmaurice (note 82), 173, for whom Art. 38 “does not really profess to contain an abstract statement of the sources of international law”. He goes on by saying that “Article 38 is simply a sort of standing directive to the Court as to what it is to apply in deciding cases brought before it”. From a critical perspective, Gennady M. Danilenko, Law-Making in the International Community (1993), 36: states that “[e]xamples of state practice indicating a wide acceptance of Art. 38 as an authoritative enumeration of sources of international law are numerous”. 87

Cf. Louis Henkin, International Law, Politics and Values (1995), 31 et seq.: “The international system implies a number of assumptions and conceptions of axiomatic ‘constitutional’ character”. 88

However, see also erroneously ICJ, Military and Paramilitary Activities (note 7), para. 207 quoting id., North Sea Continental Shelf Cases (note 1), para. 77: “[F]or a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates’”. Critically also Mendelson (note 56), 183. See recently ICJ, Jurisdictional Immunities (note 1), para. 55: “It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the existence of ‘international custom, as evidence of a general practice accepted as law’’’ (emphasis added). 89

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unwritten meta-norm. This meta-norm is the correct place to discuss the normative foundation and practical implications of CIL. Also the work of the ILC on this subject matter is of utmost importance and would be well-advised in dealing with the process of the emergence of CIL instead of only focusing on its identification. Consensus is thus a characteristic element in the process of CIL emergence. Yet CIL is characteristically modified – if we do not speak simply of a supplementary norm – by a breach of existing practice.90 In the frame of consensus theory this is to be understood as a conscious breach of existing laws with the (legally allowed) aim of modifying existing laws. If a critical number of States follow the suggested modification of the former, the breach is healed. If the suggested modification is not successful, the illegality of the proposed change remains and is confirmed by the majority of States.91 A conscious expression of opinio iuris might be helpful in order to clearly identify the current status and thus contributes to legal certainty.92

B. Inductive v. Deductive Approach and Consensus Theory

What has been discussed so far is closely related to the question of whether CIL is generated and subsequently identified by an inductive93 or a deductive94 approach. Induction can be characterised as inferring a general rule from individual instances.95 90 This is, of course, the other extreme of a simple extension. Of course a sort of middle way between both extremes is conceivable. Thus, ‘bending’ an existing rule instead of breaching it might also be a way of amending an existing norm. This would fit in with the offered understanding of an evolutionary process very well. However, for the sake of clarity I refer to a breach of the existing norm in the text. I am grateful to Gábor Sulyok for the idea of ‘bending’ norms. 91 See ICJ, Military and Paramilitary Activities (note 7), para. 207: “Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law”. Cf. Simma (note 6), 40; as well as Kammerhofer (note 8), 74 et seq., who introduces a meta-level to substantiate the possibilities of modification. 92

Cf. also Akehurst (note 6), 8.

See Anthea E. Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, American Journal of International Law (AJIL) 95 (2001), 757, 758, who calls the inductive process traditional. 93

The deductive process is referred to as modern by Roberts, see ibid., 758 et seq. Critically Bruno Simma/Philip G. Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, AYIL 12 (1988–89), 88. 94

Cf. Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology Between Induction, Deduction and Assertion, EJIL 26 (2) (2015), 417, 420. 95

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A consistent, long-lasting process is more likely to be accounted for by an inductive approach, collecting acts of practice empirically. Quicker, if not to say instant, CIL, however, may be more easily explained as an answer to the spontaneously emerging necessities of a global world with reference to the deduction of legal convictions derived from ‘universal pre-existing’ norms or opinions.96 Deduction can be qualified as inferring a specific rule from an overarching rule or principle.97 Both methods of identifying CIL very likely lead, in a radical way, to the omission of one of the two elements of CIL.98 The deductive approach – in a radical version – first interprets State practice already as a simple proof for the existence of the CIL norm in question, which is said to rest on the foundation of a universal legal conviction.99 Thus, from this perspective only the element of opinio iuris is deemed to be constitutive for the emergence of CIL.100 The affirming practice of other States or their tacit agreement is swept away in favour of a strong focus on a universal legal conviction (opinio iuris) which, for instance, is derived – in a modern version – from multilateral treaties or UN resolutions.101 To exaggerate a bit, we could hold that a deductive approach does not need or care about the agreement of other States because even the first practice is only deduced from a pre-existing norm which was already transcendentally present in the legal consciousness of all States. It is, thus, only made visible. The proximity to natural law, completely detached from consensus, is obvious. Hence, early approaches to CIL saw first practice as simple ‘recognition’ of a 96 Cf. Alberto Alvarez-Jiménez, Methods for the Identification of Customary International Law in the International Court of Justice’s New Millennium Jurisprudence: 2000–2009, ICLQ 60 (2011), 686. 97

Cf. Talmon (note 95), 420.

98

Cf. critically with regard to the one element approach Kammerhofer (note 8), 61 et seq.

See Cheng (note 13); as well as Karl Strupp, Les règles générales du droit international de la paix, Recueil des Cours (RdC) 47 (1934-I), 259. Apparently also Tasioulas (note 21). For the same qualification of Tasioulas’ approach, see Lepard, Dynamic Process (note 40), 75, footnote 45. 99

Note again that it is still important to distinguish the case of omissions, which can be clear practice if demonstrated convincingly. See supra, note 8. 100

See Roberts (note 93), 758 et seq. (referring to ICJ, Military and Paramilitary Activities in and against Nicaragua (note 7), para. 186): “The court did not make a serious inquiry into state practice, holding that it was sufficient for conduct to be generally consistent with statements of rules, provided that instances of inconsistent practice had been treated as breaches of the rule concerned rather than as generating a new rule”. Cf. Jonathan Ian Charney, Universal International Law, AJIL 87 (1993), 529, 545 et seq. However, it is doubtable whether the ICJ actually had such a modern deductive approach in mind (despite the wording). See Shaw (note 8), 55; as well as Alvarez-Jiménez (note 96), 688. 101

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transcendentally present norm.102 The ‘modern’, deductive approach to identifying CIL does, at least, substitute the transcendental, natural norm with the legal conviction of States proving practice and its binding nature. Still, the spatial element, which is at least related to the semantic interpretation of the word ‘custom’, remains neglected.103 As a consequence, the designation of ‘customary’ becomes questionable.104 Accordingly, the proposal to subordinate such law emanating from a universal opinio iuris to another legal source, namely general principles,105 is entirely understandable. Having spoken of Article 38 (1)(b) ICJ Statute before – not as the legal source of CIL but as the definition of how to identify CIL – this is enough to clearly refute a radical deductive approach. In contrast, the inductive approach – again in a radical version – may also amount to a one-element approach, however, this time neglecting the subjective element of opinio iuris.106 This leads us to the problematic situation that behaviour under the flag of courtesy or other (than legal) means cannot be distinguished from mandatory legal actions.107 However, a more moderate version of inductive identification allows space for the legal conviction of States. Thus, CIL emerges inductively by looking at the new practice of a State supported by legal conviction of proposing a new law (opinio iuris) as well as a quantifiable number of further States who – by following this 102

Cf. Kammerhofer (note 8), 78 et seq.

103

See also Simma/Alston (note 94), 89 et seq. Critically Akehurst (note 6), 14.

See Robert Y. Jennings, What Is International Law and How Do We Tell It When We See It?, Annuaire Suisse de Droit International 37 (1981), 59, 67: “Perhaps it is time to face squarely the fact that the orthodox tests of custom – practice and opinio juris – are often not only inadequate but even irrelevant for the identification of much new law today. And the reason is not far to seek: much of this new law is not custom at all, and does not even resemble custom”. 104

Cf. with regard to fundamental human rights Simma/Alston (note 94). Cf. Nils Petersen, Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation, American University International Law Review 23 (2007–2008), 275. 105

Cf. Kelsen (note 16), 264–266, who, however, revised it to solely refer to State practice later, in id., Principles of International Law (2nd ed. 1966), 450 et seq.; Cf. Paul Guggenheim, Traité de droit international public (1953), 46 et seq.; id., Les deux éléments de la coutume en droit international, in: LGDJ (ed.), La technique et les principes du droit public: Etudes en honneur de Georges Scelle, Vol. I (1950), 275; this was later revised in id., Traité de droit international public, Vol. I (2nd ed. 1967), 103 et seq.; see also Lazare Kopelmans, Custom as a Means of the Creation of International Law, BYIL 18 (1937), 127 et seq., with some exceptions (135); see also Gihl (note 74), 53 and 84. 106

Cf. D’Amato (note 6), 57: “Finally, a failure to protest might manifest not acquiescence but a belief that the usage was simply outside the legal realm, belonging to the realm of social courtesy or comity”. 107

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proposal – accept the offer and thereby establish law. This is supplemented by silence from inactive States.108 Thus, empirical facts lead to the induction of a legal rule. A modest version of the inductive and deductive approach combined (i.e. an acknowledgment of both elements) might thus lead to the emergence and succinct identification of CIL.109 In this vein the relationship between the element of State practice and opinio iuris might be described as somewhat relative, as the concentrated presence of one of the two might compensate for a slightly less clear presence of the other element.110 However, this relativity is not absolute. The strong presence of one element might, thus, not compensate for the complete absence of the other element.111 As a consequence, relying on consensus theory and interpreting the identification of CIL according to Article 38 (1)(b) ICJ Statute asks for the presence of both elements for CIL to emerge. The emergence of CIL on the basis of just one element might only work if Article 38 (1) ICJ Statute were to be changed. This is an effect of the reconstruction of the formal source of CIL emergence from the definition of how CIL norms are identified. Recent tendencies in the case law of international criminal tribunals have led scholars to focus on and propagate a ‘modern’ CIL, very often leading to the neglect of one element, whether this be consuetudo or opinio iuris.112 Yet, I am very much convinced that – even though this is a fascinating field for analysis – this must be seen as an exception to the rule rather than the opposite, i.e. indicating a ground-breaking See also Shaw (note 8), 63: “Customary law is thus established by virtue of a pattern of claim, absence of protest by states particularly interested in the matter at hand and acquiescence by other states” with further references to ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports 1992, 3, para. 405. 108

109 See also William T. Worster, The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches, Georgetown Journal of International Law 45 (2) (2014), 445; Alvarez-Jiménez (note 9), 689 et seq. Cf. also Talmon (note 95), 417, who concludes “that the main method employed by the Court [ICJ] is neither induction nor deduction but, rather, assertion”.

See Frederick L. Kirgis, Custom on a Sliding Scale, AJIL 81 (1987), 147, 149, who, however, extends his “sliding scale” to the replacement of one element. See also Oskar Schachter, Entangling Treaty and Custom, in: Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), 717, 731. 110

111

See supra, note 6.

For an extensive overview of the case law see Thomas Rauter, Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege, Doctoral Thesis, University of Salzburg (2016) (on file with the author). 112

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shift in the normative foundations of CIL. Reasons for these exceptions might be, for instance, the very vague, if not to say non-existent, (international criminal) law regarding some problems which have been and still are subject to adjudication by international criminal tribunals (from whom, nonetheless, results were/are expected). This has almost unavoidably provoked a very problematic use of traditional methods for CIL identification or – if we take up the perspective of those who want to ring in a new age of CIL – simply shows the shift in CIL identification.113 Hence, even though we are facing striking examples and challenges from this area of international law for CIL, this is to be perceived much more as a warning (and yet understandable example) for the need to have a clearer framework for CIL emergence and identification rather than a revolution in terms of international sources. The reason for that is simply that adjudication is not the right place for law-making (even though the lines are often blurred).114 Needless to say, it is utopian to hold that the judge is only “la bouche de la loi”, as Montesquieu once famously stated.115 Sometimes this is more evident, sometimes it is less so. And the matter is one of degree. However, far too often an analysis stops at this point, already satisfied with having – albeit sometimes very convincingly – blurred the lines (in this case of law-making and adjudication). Having done so, it is far too easy to forget that the point simply is: We need lines. Our whole thinking works in categories and labels. This holds true even though the lines are very often hard to draw. Thus, to cut it short: Adjudication sometimes might be a bit too active, blurring the line between interpreting and making the law. However, blurring the 113

For a detailed analysis see ibid.

Cf. also Tamás Hoffmann, The Gentle Humanizer of Humanitarian Law: Antonio Cassese and the Creation of the Customary Law of Non-International Armed Conflicts, in: Carsten Stahn/Larissa van den Herik (eds.), Future Perspectives on International Criminal Justice (2010), 58. For the argument that judges, beyond identifying custom, also have the power to define what custom is as a source of law see Vassilis Tzevelekos, Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (Their) Ideology in Custom Making, in: Nikolas M. Rajkovic et al. (eds.), Power of Legality: Practices of International Law and Their Politics (2016), 188. According to this view what judges want is decisive for whether custom is the result of a tacit agreement or not. 114

115 In this regard it is striking to see that even one of the most prominent positivistic scholars, Hans Kelsen, understood judicial decisions (within their narrow frame as guided by the law) as making the law, and he himself was a very active and progressive constitutional judge. See Ewald Wiederin, Der österreichische Verfassungsgerichtshof als Schöpfung Hans Kelsens und sein Modellcharakter als eigenständiges Verfassungsgericht, in: Thomas Simon/Johannes Kalowada (eds.), Schutz der Verfassung: Normen, Institutionen, Höchst- und Verfassungsgerichte (2013), 283.

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lines is not a sufficient argument for abolishing the lines. In our case, the arguments are even not good enough to shift the lines by openly awarding international adjudicators the role and competence of law-making (even if they sometimes overstepped their competence and their activism was welcomed by commentators and sometimes even States). Especially so-called hard cases (mostly blurring the lines) are difficult to handle because they cannot be solved to a satisfying degree (or with one ‘right’ answer) in contrast to more clear-cut cases. However, using the benchmark of the clearcut cases for the hard cases might blur the lines, which is problematic. This does not mean that we should refrain from thinking critically about the lines or even refrain from shifting them when, after due consideration and well-grounded reasoning, they have to be moved (at best to minimise hard cases and – often overseen – not to create new ones). But even if we abolish some lines, in general, we need these boundaries, at least at some point.

C. The Challenge of ‘New States’, Consensus Theory, and what we can Learn to Make CIL More Tangible

Yet another challenge consensus theory faces is new States joining the international community and the question of how they could possibly be bound by existing CIL without having explicitly expressed their consent. This challenge is different from the argument presented before as the ‘new States’ did not have the chance to object to a rule while it was emerging. Thus, they are faced with being bound by existing CIL norms when they join the community. However, firstly, we can hold that this is no pressing practical question anymore116 as the international legal order is more or less stable with regard to territory. Secondly, this point of criticism can be counteracted with a slightly different but generally similar answer as posed in favour of tacit agreement before. One can argue that new States might be said to tacitly agree to existing norms in order to be able to profit fruitfully from the stability of the existing legal order.117 The price, as the argument goes, is to accept the existing laws.118 The literature quoted regarding this problem mostly dates back to the 1960s: see, for instance, Tunkin (note 65), 429; Georges Abi-Saab, The Newly Independent States and International Law (1963), 8–10; Jonathan Ian Charney, The New States and International Legal Order, RdC 118 (1966), 1; Michael Schweitzer, Das Völkergewohnheitsrecht und seine Geltung für neuentstehende Staaten (1969). 116

Note that this is different from the argument above as these new States could not have consented (even hypothetically) to the underlying formal source of the CIL and the analogous consensus of the 117

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Hence, instead of understanding this as a flaw of consensus theory we can turn the issue upside down: Consensus theory is helpful as it clearly highlights where the real problems lie. It shows us what is problematic and important for the normative foundations of CIL. Thus, we learn from consensus theory that it is crucial to know when the offer has been accepted. Made clear with regard to new States, this insight also holds true for ‘normal’ cases of CIL emergence. Consensus theory draws our attention clearly to the need for specifying quantitative criteria in order to determine an offer and its acceptance. To simply ask for a specific number, saying that the offer is accepted if five States agree to the invitation, is very likely not to do justice to the complicated and demanding events in this rapidly changing international legal order. However, a more complex formula might do. To grapple better with the question of which behaviour should count when looking at State practice, it was suggested to look at those States which were actively involved or at least aware of a specific practice and capable of intervening.119 A corresponding but slightly different point is to focus on those States which actually have an interest in the practice concerned. Wellknown examples are the law of the sea (where States without access to the sea are an example for at least very limited interest) or space law (where some States are not able to participate in space missions simply due to financial and/or technical constraints), both demonstrating that some States are obviously prevented from consenting.120 It is interesting to see how such arguments are similar to the problem of how to bind new States.121 In a similar vein one could ask how can States be bound by a certain CIL norm if they did not even have the chance (due to limited access and/or interest to the law of the sea) to object to a CIL norm, let alone consent consciously and freely to such a norm. And more specifically, how can we explain or say that this problem is guided by consensus theory with regard to CIL emergence? However, this is a rather one-sided perspective. If we take up the perspective of those States engaging in a certain field, for instance the law of the sea, we can ask: Why should they worry ‘first constitution’ mentioned, at least not in the form of the very same State as is subject to being bound now. Thus, the concept of a fictitious consent regarding the first consensus is not a very convincing tool in this case. 118

Cf. e.g. Grigory I. Tunkin, Theory of International Law (transl. W. E. Butler, 1974), 129.

119

See supra, note 73.

120

Cf. Petersen (note 81), 3.

121

See above.

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about possible future actors in the present? Or to put it a bit more specifically, why should we not be able to find a customary legal solution to a certain problem at present just because, in the future, some new actors might possibly appear? And slightly more provocatively, should a space mission not be regulated by any CIL norm just because there is still one small State which is not able or does not want to financially engage in space missions?122 Regarding space we can understand that any nonparticipating State may, all of a sudden, finally find the financial means or otherwise simply decide to participate in a space mission as a new State. And, thus, we can argue in a similar vein as we did regarding new States in the 1960s. We could hold that those new States do consent to the existing CIL norms by participating in the legal order. Thus, they could also consent to the existing CIL regime regarding space when they start their own space missions. Furthermore, those new States are not completely subjected to the existing regime. They can even propose new CIL norms, thereby extending or bending and so modifying the current regime, which might be successful if they find enough other States willing to accept their offer. The point is that at present we also strive for the legal regulation of a specific act or field, such as in the above-mentioned example of outer space. It is not a very strong argument to prevent a regulation in the present by saying that in the future the case might be different (especially if we are speaking about vague future actors). This is the perspective of currently active States (be it with regard to space, the sea, or some other possibly narrower field). Admittedly, this does not solve the potentially problematic issue that new States or States starting to become active in a certain field are faced with existing CIL norms concerning a given CIL regime. However, even though the question of ‘fairness’ might pop up here, it is not the task of CIL (or not exclusively at least) to provide for a fair solution in this regard. How could that be? CIL emerges via actors and thereby guides their relationship to each other. CIL is based on action. That is why it is rather limited in scope and content and – importantly here – regarding new actors. How could you behave with regard to something non-existent? So, CIL as such is not able to respond to this demand for a ‘fair solution’ independently of time. (Concerning a time-dependent status quo – depending on the notion and understanding of fairness – CIL does provide for a more or less fair solution to the extent that consensus might deliver such a solution.) Hence, we should rather praise However, note the difference here between whether we are speaking of those States which have an interest in a certain practice or those which are simply unable to act in a certain way. 122

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consensus theory for clearly pointing towards a sensitive topic, namely how to bind new States (with regard to their existence or potential to act in a certain field). Yet it is not the purpose of a theory to solve this issue. That is left to practice. The theory did its job if we were clearly directed towards the problem. Thus, this is no weakness of consensus theory aiming to explain or give a framework to the emergence of CIL. Rather the opposite is true: It is the strength of consensus theory to point out these difficulties and some of its impossibilities. It is the great merit of consensus theory to clearly highlight that on the one hand we cannot demand too much from CIL (a quite likely fallacy for many lawyers and scholars), unless we completely abolish the concept as such and argue for what is often called a ‘modern’ CIL emergence process with only one element driven by a higher reasoning and based upon opinio iuris having its source in a (sometimes vague, sometimes undefined) transcendental authority123 (likely to be as fallible as wishful thinking or to represent the interests of strong individual actors).124 On the other hand, it is exactly this insight, which puts us in a position to come up with criteria to make CIL more tangible in practice. Against this background Conclusion 3, concretising the “assessment of evidence for the two constituent elements”, of the most recent report of the ILC is very welcome (even though – as this article argues – such criteria belong to the normative framework on how CIL emerges rather than how it is identified).125 In accordance with this attempt to concretise CIL even more precise criteria could help to make CIL emergence more tangible and, hence, its identification less uncertain. In a nutshell, the formula I wish to propose here in order to make CIL norm emergence more tangible, must focus on potentially active States.126 Thus, the point of the 123

Cf. supra, V. B.

Cf. Lepard, Dynamic Process (note 40), 80: “Perhaps the biggest problem with opinio jurisfocused theories is that they risk treating lex ferenda as lex lata. They are particularly prone to ‘wishful thinking’. Without the confirmation of consistent state practice, there is at least the possibility that states do not actually endorse the norm as a legal norm that should or does bind them; it may be merely aspirational”. 124

125

ILC, Report on the Work of its 68th Session (note 5), para. 62, Conclusion 3.

Note that this is different from the concept of “States whose interests are specially affected” (cf. supra, note 72 and accompanying text) to which the ICJ referred to in North Sea Continental Shelf Cases (note 1), para. 74. Specially affected States are thought to have a special weight in terms of considering a certain practice within a “short period of time” nonetheless “both extensive and virtually uniform.” Yet, of course both concepts might overlap as a specially affected State is within the category of potentially active States. However, vice versa this is not always the case. Cf. for specially affected States also 126

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parture is the number of States which are potentially able to act in a certain field (be it the sea, the space, or a narrower field). The decisive point when CIL emerged and can be identified as such (i.e. the point when the offer is accepted) is thus a specific fraction of this number. This should – ideally – be subject to empirical research on case law in order to obtain an educated estimate, which has proven to be a rather effective number. However, for the sake of the argument, I wish to offer here a guess, namely that 25% as a minimum number of potentially active States shall suffice. Whether this guess is educated remains to be seen. Thus, a CIL norm emerges if and when, out of twenty potentially active States, we have the consistent practice of five States supported by opinio iuris. Whether they are new as such or are engaging in a new field, new States are thus confronted with an existing CIL regime guiding the world or a specific field of it. This is just being realistic. In the past exploring new territories was also rewarded with the possibility of acquiring the unexplored area. First come, first served. Or in slightly different words, offering rewards to explorers is a principle we still refer to rather often in many different legal and non-legal ways. Why not with regard to CIL? Yet this has to be seen as a guiding standard instead of an absolute number or formula.127 Thus, exceptions might be possible. Furthermore, the number of 25% of potentially active States clearly depends on what we perceive as an active State, and more specifically, what the attribute ‘potentially’ refers to. This is also subject to a clear definition in order to make CIL more tangible. Similarly, this understanding could help in terms of who shall be charged with the question of proof. The framework of this meta-norm is consensus theory. Yet, we have also learned that we as lawyers have a special need to work with concepts and definitions and so we have to draw lines. The meta-norm is the place where we should start drawing them. The Mark E. Villiger, Customary International Law and Treaties: A Study of Their Interactions and Interrelations with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (1985), 13 et seq., with reference in footnotes 112 and 113 to Max Sørensen, Principes de droit international public, RdC 101 (1960-III), 1, 40; and Verdross (note 51), 650 suggesting to focus on practice of those States which had “the opportunity to engage in such practice”. However, also such a limitation might prove to be too narrow except if the opportunity to engage is defined quite broadly, for instance, including also articulating an interest in a certain practice (compare the example of Villiger, ibid., 14, that “‘unaffected’ States, such as landlocked countries, have taken a keen interest in the rules on the exploitation of the EEZ or the continental shelf”). Thus, I wish to propose as an even slightly broader framework potentially active States. 127

Cf. e.g. Petersen (note 81), 5 et seq., highlighting different variations requiring different solutions.

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ILC and its reports might wish to take up this issue and suggest even more specific guidelines than the vague formula proposed here in order to give CIL more (legal) certainty, thereby highlighting and emphasising an important element in the genesis of CIL which is often overlooked but of utmost importance, namely trust. To be clear, this article aims to highlight a framework within which we could make CIL more tangible and remains quite abstract in its proposals. More specific suggestions remain open for further analysis – by academics or by the ILC and its distinguished Special Rapporteur.

VI. Conclusion Whether the chicken preceded the egg, or the egg the chicken, is a tricky question. Even though there have been prolific and fascinating attempts by philosophers and other scientists to give an answer, its charm of masterly illustrating circularity remains. This article took up this conundrum in order to provide arguments for resurrecting, or even better, reanimating consensus theory as the theoretical framework for CIL and its normative foundations. The point, in a nutshell, is that the commonly perceived flaws of consensus theory are actually not its flaws, but rather its great strengths: Consensus theory, as the argument goes in this article, shows the basic logic and problems or potential conflicts of CIL and its normative foundations more clearly than other theories. Dealing with a formal source of international law creates problems without a clearly regulated written framework defining which processes and to which extent actions and convictions are decisive. Thus, acknowledging the evolutionary process of CIL emergence makes clear, firstly, that Article 38 ICJ Statute is an important reference point. It is the cornerstone for identifying CIL. Yet, it is only a touchstone for how CIL emerges. Its emergence still remains vague, relying, as it does, on a positive, but unwritten, formal source of international law which can only be reconstructed by using the illustration of Article 38 ICJ Statute. Secondly, seeing the situation more clearly, it is a different question from how we should deal with the virulent problems of such a vague law-making process. What are the consequences of such a seemingly self-perpetuating evolutionary process of CIL emergence? Just like the question of the chicken and the egg becomes easier to solve if we know whether we are talking about any old egg, a chicken egg, or an egg containing a chicken without

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having been laid by a chicken, consensus theory tells us that we need to focus on some (somewhat arbitrary) lines in order to be able to have a common understanding of when a CIL rule is emerging and when it becomes a valid and binding norm. Thus, instead of waiting too long, as the Montagues and Capulets did in Shakespeare’s Romeo and Juliet (to use another example of self-perpetuating circles), continuing their feud by blaming each other for having started it, until tragically suffering the loss of their beloved, we should rather aim to understand that we need to step out of this self-perpetuating circle. Consensus theory forces us to define more precisely what an offer is in the realm of CIL and when it is accepted. This article proposed a formula stating how much State practice and opinio iuris is needed for the emergence of a CIL norm and what framework might be suitable as a guideline. Clearly, this is debatable. The need to make CIL more tangible in the correct place, namely with reference to its meta-norm, which is to be reconstructed according to the definition of the result (the definition of how to identify CIL according to Article 38 ICJ Statute), is less debatable. Only the future will tell – possibly supported by the work of the ILC and its Special Rapporteur – whether we “shall be pardon’d, and some punished” or whether the following will still apply to us for never was a story of more woe Than this of Juliet and her Romeo?128

See William Shakespeare, Romeo and Juliet (1597), lines 331–332, available at: http://www. bartleby.com/70/3853.html (accessed on 2 November 2016). 128

The Crime of Genocide and the Problem of Subjective Substantiality PAUL BEHRENS

ABSTRACT: The legal understanding of genocide presupposes a crime carried out with intent to destroy a protected group “in whole or in part”. The words “in part” have been read by the international criminal tribunals and scholars on the law of genocide as meaning “in substantial part”. Yet the identification of substantiality has caused considerable difficulties. This article critically analyses the main approaches which have been advanced in this context in the past (the numerical, the functional, and the geographical approach) and it explores their strengths and weaknesses – in particular in view of the need to establish objective criteria for the evaluation of this legal element. The article also discusses a fourth approach (termed the ‘individualised approach’) which has not received extensive treatment in past case law but which, it is suggested, is better suited for an assessment of substantiality as an element closely linked to the intent of the individual perpetrator and which, through the establishment of objective parameters, provides conditions which avoid the arbitrariness that inhabits the methods on which the tribunals have focused that far. KEYWORDS: Genocide Convention, Genocide, Specific Intent, Dolus Specialis, Substantiality, Quantitative Approach, Qualitative Approach, Individualised Approach, International Criminal Law

I. Introduction Questioning the substantiality of genocide may seem a peculiar endeavour: It is, after all, an element that appears to inhabit the very concept of the crime. That certainly is the way in which genocide is approached in the social sciences, where this aspect retains its place on the objective side of the phenomenon: Genocide is consid-

Reader in Law, University of Edinburgh.

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ered substantial because of the large number of victims, which is deemed to be one of its indispensable elements.1 And yet, it is at this very point that the legal understanding has followed a fundamentally different path. Within that framework, substantiality is not part of the objective elements of genocide – at least not to that degree that it would be possible to distinguish its required objective impact from that of homicide or indeed certain crimes below that threshold. Genocide, under the definition of the crime which the international criminal tribunals follow, does not presuppose the existence of a campaign or mention a collectivity of actors on the side of the perpetrators, and neither the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) nor the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY), of the International Criminal Tribunal for Rwanda (ICTR), or of the International Criminal Court (ICC) require the existence of widespread atrocities or an organised structure in which the individual perpetrator would have been integrated.2 Where the victims are concerned, there had traditionally been some debate in the literature about the number of persons which must have 1 See, for instance, the numerical distinction made by Kuper and Charny between “genocide” and “genocidal massacres”, Israel Charny, Toward a Generic Definition of Genocide, in: George Andreopoulos (ed.), Genocide: Conceptual and Historical Dimensions (1994), 64. 2 Art. II (a) and (b) Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS 78, 277 (Genocide Convention); Art. 4 (2)(a) and (b) Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827 of 25 May 1993 (ICTY Statute); Art. 2 (2)(a) and (b) Statute of the International Criminal Tribunal for Rwanda, SC Res. 955 of 8 November 1994 (ICTR Statute); Art. 6 (a) and (b) Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90 (Rome Statute). See on this International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber, The Prosecutor v. Goran Jelisić, IT-95-10-T, Judgment of 14 December 1999, para. 100 (Jelisić (Trial Chamber)). The Appeals Chamber, while taking a critical line of Jelisić’s acquittal, did not disturb the Trial Chamber’s approach in this regard, ICTY, Appeals Chamber, The Prosecutor v. Goran Jelisić, IT-95-10-A, Judgment of 5 July 2001, para. 71. See also Lars Berster, Article II, in: Christian Tams/Lars Berster/Björn Schiffbauer (eds.), Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), 138. However, for a critical view, see William Schabas, Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia, Fordham International Law Journal 25 (2001/2002), 31. In this regard, the concept which several authors in the social sciences follow differs considerably from the legal understanding of the crime. Chalk and Jonassohn, for instance, speak of a “state or authority” that intends to destroy the group, Frank Chalk/Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies (1990), 23; Fein talks about an “actor organised over a period”, Helen Fein, Genocide: A Sociological Perspective (1990), 24; Horowitz even requires a “structural and systematic destruction […] by a state bureaucratic apparatus”, Irving Horowitz, Taking Lives: Genocide and State Power (1980), 17.

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been affected by the crime.3 However, as the Elements of Crime make clear, a substantial threshold is not to be expected in this context either: It is sufficient that one member of a protected group had been victim of a genocidal act.4 Even the contextual element, to which that instrument refers, will not always introduce a significant threshold.5 Quite apart from the ongoing debate about the legal status of this aspect,6 the fact must be taken into account that the phrase “in the context of” is also meant to incorporate “initial acts in an emerging pattern”7 – at the very stage, therefore, at which substantiality on the objective side cannot be expected to be in existence. For the legal concept of genocide, therefore, any notion of substantiality has to be seen on the subjective side of the crime: It must lie in the intent of the perpetrators rather than the nature or consequences of their actions. That, however, carries particular difficulties for trial chambers tasked with the identification of its existence. Objective substantiality may be easy enough to establish: The existence of large victim numbers or of a widespread pattern of destructive conduct Cf. the discussion in Hans-Heinrich Jescheck, Die internationale Genocidium-Konvention vom 9. Dezember 1948, Zeitschrift für die gesamte Strafrechtswissenschaft 66 (1956), 193, 212, and Pieter Drost, The Crime of State: Penal Protection for Fundamental Freedoms of Persons and Peoples, Vol. 2: Genocide (1959), 85. 3

4 Art. 6 Elements of Crime of the International Criminal Court, UN Doc. PCNICC/2000/1/ Add.2 (2000) (Elements of Crime), the first two elements to each alternative. But see Kai Ambos, Internationales Strafrecht (2008), 205 for a critical view. This is another field in which the concept of genocide employed by scholars in the social sciences can show significant differences by comparison to the legal definition of the crime. Chalk and Jonassohn talk in this regard about genocide as “one-sided mass killing”, Chalk/Jonassohn (note 2), 23; Charny refers to the “mass killing of substantive numbers of human beings”, Charny (note 1), 75; in Horowitz’ view, genocide is the “physical dismemberment and liquidation of people on large scales”, Horowitz (note 2), 85. 5 The Elements of Crime stipulate that the perpetrator’s conduct must have taken place “in the context of a manifest pattern of similar conduct directed against that group” or must have been conduct “that could itself effect such destruction”, Art. 6 (a)–(e) Elements of Crime, the last element of each alternative. 6 Triffterer, for one, expressed the view that this element is not consistent with the wording of the Rome Statute and thus conflicts with Art. 9 Rome Statute, Otto Triffterer, Genocide: Its Particular Intent to Destroy in Whole or in Part the Group as Such, Leiden Journal of International Law (LJIL) 14 (2001), 399, 407. However, see also International Criminal Court (ICC), Pre-Trial Chamber, The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision on the Prosecution’s Application for a Warrant of Arrest of 4 March 2009, paras. 128 and 132. 7

Art. 6 Elements of Crime, Introduction.

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is often not difficult to prove and does not attract reasonable doubt. Subjective substantiality, however, shares the difficulties that most elements of the mens rea of genocide display. That certainly includes challenges on the evidentiary level. But they are joined by questions which attach to the very standard of assessing substantiality. The identification of objective tests to evaluate this element is a complex undertaking. Leaving the formulation of the relevant approach to the discretion of the individual trial chambers is an even more questionable path. Yet it is this way which the tribunals appear to have taken. As a result, a variety of methods have at times been promoted by individual benches, with results which are not always beyond question and justified critique. This chapter engages in a critical analysis of the concept of subjective substantiality as one of the characteristic elements of the crime of genocide. In so doing, it examines the three methods which have traditionally been employed to approach this concept – it explores their strengths and weaknesses, but also raises questions about the legitimacy of their existence (II.). Section III. introduces another approach (the ‘individualised approach’) which has received only cursory attention by the tribunals that far, but whose role, it is suggested, is of paramount importance for any attempt to identify substantiality in the mindset of the relevant perpetrator. The final section (IV.) offers concluding reflections on the position of substantiality within the law of genocide and the mechanisms best suited to the evaluation of this element.

II. Requirement and Challenge: The Establishment of Subjective Substantiality Under the legal concept of genocide, the importance of the subjective part of the crime is well recognised. It is this aspect – and, in particular, specific intent as its defining part – which, in the words of the international criminal tribunals, “characterises” and “distinguishes” the crime.8 The particular blameworthiness of genocide is See International Criminal Tribunal for Rwanda (ICTR), Trial Chamber, The Prosecutor v. JeanPaul Akayesu, ICTR-96-4-T, Judgment of 2 September 1998, para. 517 (Akayesu (Trial Chamber)); ICTY, Trial Chamber, The Prosecutor v. Radoslav Brđanin, IT-99-36-T, Judgment of 1 September 2004, para. 695 (Brđanin (Trial Chamber)); id., Trial Chamber, The Prosecutor v. Milomir Stakić, IT97-24-T, Judgment of 31 July 2003, para. 520 (Stakić (Trial Chamber)); ICTR, Trial Chamber, The Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgment of 21 May 1999, para. 91 (Kayishema (Trial Chamber)). 8

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thus founded on the destructive intent of the perpetrator, and the substantial extent of the intended destruction is a key aspect of that element. And yet, from a strictly literal perspective, the requirement even of subjective substantiality is not immediately obvious. Genocidal intent, according to the Genocide Convention and subsequent instruments, is the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.9 There is no mention of a threshold requirement: Mathematically, even intent to destroy one member of the group would qualify as intent to destroy the group “in part”. It is interesting to note that this difficulty had been appreciated even at an early stage in the drafting of the Genocide Convention. The Ad Hoc Committee, which the UN Economic and Social Council (ECOSOC) had convened to debate the draft of the future convention, decided not to include a reference to the possibility of partial destruction, after concerns had been voiced that the resulting threshold for the commission of genocide might be too low.10 It was only when the text was debated in the (General Assembly’s) Sixth Committee that the phrase “in whole or in part” was included (the Sixth Committee followed a suggestion by Norway in this regard).11 But it was not long before the reference to (intended) partial destruction gave rise to further interpretive questions. Two years after the conclusion of the Genocide Convention, when adoption of the text was discussed in the United States (US), Raphael Lemkin (the legal scholar who had created the word ‘genocide’ and had also been involved in the codification of the crime), wrote a letter to the US Senate in which he pointed out that the (intended) “destruction in part must be of a substantial nature so as to affect the entirety.”12 With this, he supplied an interpretive direction which has not lost its significance today. In 1996, the International Law Commission (ILC) expressed itself in terms similar to Lemkin: The crime, “by its very nature” required an intention to destroy “at

Art. II Genocide Convention; see also Art. 4 ICTY Statute; Art. 2 ICTR Statute; Art. 6 Rome Statute. 9

10

See on this William Schabas, Genocide in International Law (2009), 274.

United Nations General Assembly Official Records (UN GAOR), 3rd Session, 6th Committee, 73rd Meeting, 89, 92, 97. 11

United States (US) Congress, Executive Session of the Senate Foreign Relations Committee, Historical Series, Vol. 2 (1976), 370. 12

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least a substantial part of a particular group”.13 The international criminal tribunals likewise demand that the intended destruction must refer at least to a “substantial part” of the group.14 The inclusion of the adjective “substantial” is thus a deviation from the literal interpretation. But it is not a reading of the crime which conflicts with the principle of legality;15 it does not expand the scope of the crime, but limits it through the addition of an element for which the prosecution has to adduce the relevant evidence. However, while subjective substantiality as an element of genocide can rely on a broad basis of acceptance, it is the determination of its parameters which has caused interpretive problems to tribunals and commentators on that issue. Lemkin’s letter to the Senate reflected on aspects which carry some importance for his evaluation of that element. In reference to the killing of the Armenians in Turkey in 1915, he pointed out that “not all Armenians living in Turkey were killed,” but that “this great destruction affected the very existence of the Armenian religious group.”16 And he named figures, referring to 1,200,000 Armenian victims of the relevant crimes.17 It is an approach towards the evaluation of “part” of the group which exerts influence even today. A more systematic method for evaluating substantiality was provided in the 1985 Whitaker Report whose author referred to a “reasonably significant International Law Commission (ILC), Report on the Work of Its 48th Session, Yearbook of the International Law Commission (ILC Yearbook) 1996, Vol. II, Part 2, 45, para. 8. 13

14 ICTY, Appeals Chamber, The Prosecutor v. Radislav Krstić, IT-98-33-A, Judgment of 19 April 2004, para. 12 (Krstić (Appeals Chamber)); ICTR, Trial Chamber, The Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Judgment of 7 June 2001, para. 64; ICTY, Trial Chamber, Prosecutor v. Radislav Krstić, IT-98-33-T, Judgment of 2 August 2001, para. 586 (Krstić (Trial Chamber)); id., Trial Chamber, The Prosecutor v. Vujadin Popović, Ljubisa Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, Vinko Pandurević, IT-05-88-T, Judgment of 10 June 2010, para. 831 (Popović et al. (Trial Chamber)); Brđanin (Trial Chamber) (note 8), para. 701; see also International Court of Justice (ICJ), Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, 126, para. 198.

See, on the principle in general, ICTY, Appeals Chamber, Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura, IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility of 16 July 2003, para. 34. 15

16

US Congress (note 12).

17

Ibid.

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number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership”.18 These considerations form the basis for two of the principal methods which the trial chambers have adopted in this regard and which will be discussed below: the numerical and the functional approach to substantiality. In the deliberations of the tribunals, they are joined by a third approach – the geographical method – which by necessity overlaps the other two.

A. Between Percentage and Absolute Numbers: The Numerical Approach

The numerical (or quantitative) approach received one of its clearest expressions in the Report of the Preparatory Committee on the Establishment of an International Criminal Court of 14 April 1998, which found that the intended partial destruction of the group had to refer to “more than a small number of individuals who are members of a group”.19 The Kayishema Trial Chamber was similarly outspoken in its adoption of that interpretation: “[I]n part”, in the view of the Chamber, required the “intention to destroy a considerable number of individuals who are part of the group”.20 Later case law was more cautious in that regard – in Jelisić for instance, the judges saw the numerical approach as only one possible method;21 and the Krstić Appeals Chamber spoke of it as a “necessary” starting point, but “not in all cases the ending point of the inquiry”.22 In any event, the assessment of the numerical significance of the part is not exhausted by an examination of actual numbers, but also needs to involve an evaluation of the part of the group in relation to the overall group size.23 In that regard, the Krstić Appeals Chamber found that the number of targeted individu-

18 UN Economic and Social Council (ECOSOC), Whitaker Report, UN Doc. E/CN.4/Sub.2/ 1985/6 (1985), para. 29. 19 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2/Add.1 (1998), 11, Art. 5, footnote 1. 20

Kayishema (Trial Chamber) (note 8), para. 97.

21

Jelisić (Trial Chamber) (note 2), para. 82.

Krstić (Appeals Chamber) (note 14), para. 12. See also Brđanin (Trial Chamber) (note 8), para. 702, and Popović et al. (Trial Chamber) (note 14), para. 832. 22

23

See Brđanin (Trial Chamber) (note 8), para. 702.

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als “should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.”24 The numerical approach is not free from controversy. In the 1980s, LeBlanc noted the difficulty of establishing substantiality on the basis of this method: “Is a part or a substantial part of a group 1 out of 5, 5 out of 20, 1,001 out of 2,000, 100,001 out of 200,000, etc.?” and concluded that the discussion had “often degenerated into a numbers game”.25 Twenty years later, this concern has found new justification through the considerations of the international criminal tribunals. The Appeals Chamber in Krstić and the Trial Chamber in Brđanin went to some extent to compare the number of Bosnian Muslims in Srebrenica26 and in the municipalities of the Autonomous Region of Krajina respectively27 to the overall group size. In the Sikirica Judgment on the Defence Motion to Acquit, the Chamber noted that in 1991 the total population of the Prijedor region amounted to “112,543: 49,351 (43.9%) identified themselves as Muslims; 47,581 (42.3%) identified themselves as Serbs; and 6,316 (5.6%) identified themselves as Croats”. It then found that the victims in the Keraterm camp amounted to approximately 1,000–1,400 persons and stated that this “would represent between 2% and 2.8% of the Muslims in the Prijedor municipality and would hardly qualify as a ‘reasonably substantial’ part of the Bosnian Muslim group in Prijedor”.28 Making the protection of the Genocide Convention dependent on an arithmetic mechanism is certainly a questionable procedure. Its potential of depriving victims once more of their individuality becomes particularly apparent when a trial chamber

24

Krstić (Appeals Chamber) (note 14), para. 12.

Lawrence J. LeBlanc, The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding, American Journal of International Law 78 (1984), 380, in the context of the discussion on substantiality then taking place in the United States. 25

26

Krstić (Appeals Chamber) (note 14), notes 25–27.

27

Brđanin (Trial Chamber) (note 8), para. 967.

ICTY, Trial Chamber, Prosecutor v. Sikirica, Došen, Kolundžija, IT-95-8-T, Judgment on Defence Motions to Acquit of 3 September 2001, paras. 69–72 (Sikirica, Defence Motions). It appears that the number of 1,000–1,400 persons would have included non-Muslim detainees at Keraterm. 28

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resorts to terms such as “negligible” in its reference to the number of victims in an infamous detainment camp.29 And yet, the numerical approach still has prominent supporters, including the International Court of Justice (ICJ). In Bosnia v. Serbia, the Court raised three matters in the context of the determination of “part” of the group – a reference, in fact, to three methods of establishing subjective substantiality.30 In so doing, the Court gave clear preference to the “quantitative” approach31 – a point which will be revisited at a later stage.32 Yet there is a further consideration which attaches to the adoption of the numerical approach and which casts doubt on its suitability for the evaluation of substantiality. LeBlanc, in his 1984 article, notes that the establishment of substantiality cannot be expected to proceed on the basis of “some rigid mathematical formula”, but that, “in the final analysis, the matter calls for a judicial construction”.33 It is a seductive approach; and yet, the very acceptance of a judicial decision in lieu of objective parameters causes difficulties of its own. The ICTY Trial Chamber’s decision in Sikirica on the Defence Motion to Acquit, offers an illustration. If the Chamber dismissed the figure of “between 2% and 2.8%” as sufficient for the requirements of a “reasonably substantial” part of a protected group,34 the question may justifiably be asked on what basis this finding had been reached.

29

camp.

Ibid., para. 74, with regard to the number of Bosnian Muslims and Bosnian Croats in that same

The ICJ literally states, first, that the perpetrator’s intent “must be to destroy at least a substantial part of the particular group” (Bosnia v. Serbia (note 14), para. 198). That, however, is correctly read as a reference to the numerical approach: In the following paragraph, the Court refers to the geographical approach (ibid., para. 199, see infra, II. C.) and in para. 200 to the functional approach. It is only the last approach which it calls “qualitative rather than quantitative”, ibid. 30

31 Ibid., para. 200. This is also the way Judge Bhandari understood the Court’s decision, ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, Separate Opinion of Judge Bhandari, para. 20 (Bhandari Opinion). 32

See infra, text at note 98.

33

LeBlanc (note 25), 380.

34

See supra, text at note 28.

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In this context, Alonzo Maizlish refers to the example of the Muslim group in India, in whose case the figure of 2% would amount to three million people.35 It is understandable that some observers of this situation would consider numbers in this region to fulfil substantiality requirements36 and there is evidence that some trial chambers would agree with that.37 The fact remains that the numerical approach provides courts with a considerable measure of discretion, and what may, at first sight, seem to be the application of a mathematical mechanism,38 is in fact the imposition of a figure which is based on little more than the individual judges’ own preference. In that regard, a considerable element of arbitrariness informs the decision,39 and the numerical approach thus relies very strongly on subjective conditions. It is, as will be seen, not the only approach which carries this difficulty.

B. Between Strategic Importance and Leadership: The Functional Approach

1. Towards an Assessment of Functionality The second method of assessing substantiality, which the Whitaker Report had outlined, is most appropriately termed the “functional approach”.40 The perpetrator in that scenario does not necessarily select a numerically significant part of the group, but instead targets a section which has significance for the group because of particular functions associated with it.41

35 David Alonzo-Maizlish, In Whole or in Part: Group Rights, the Intent Element of Genocide, and the ‘Quantitative Criterion’, New York University Law Review 77 (2002), 1386, 1398. 36

Cf. for instance ECOSOC, Whitaker Report (note 18), para. 29.

In Brđanin, for instance, the Chamber considered the numerical approach to rely on two factors: “absolute terms” and the relation of the part “to the overall size of the entire group”, Brđanin (Trial Chamber) (note 8), para. 702. 37

38

314. 39

Thus Angela Paul, Kritische Analyse und Reformvorschlag zu Art. II Genozidkonvention (2008), See also Alonzo-Maizlish (note 35), 1398.

See supra, text at note 18. In this context, reference is sometimes made to the “qualitative” criterion. It is an unfortunate phrase which, for reasons outlined below (infra, text at note 88) will not be preferred in this article. 40

41

See on this ECOSOC, Whitaker Report (note 18), para. 29.

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This approach, too, has been embraced by the international criminal tribunals which invoke it as one among several valid methods of establishing substantiality. In Jelisić, the Trial Chamber noted that genocidal intent may consist of the “desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such”.42 Academic literature has likewise voiced its support for this approach43 and has sometimes based it on the view that campaigns against a group have often begun by targeting specific members of the group (the group leadership, intellectuals, etc.).44 Yet there is still a considerable amount of variation regarding the determination of the targeted part of the group under this method – so much so, that the functional approach has to be seen as the most complex of the three “traditional” methods employed by the international criminal tribunals to assess substantiality. The Brđanin Trial Chamber, for instance, referred to the “prominence” which the targeted part enjoyed within the group; whereas to the Jelisić judges, the selection “of the most representative figures” would have mattered.45 The Krstić Appeals Chamber on the other hand expressed the view that the targeted Bosnian Muslims of Srebrenica were “emblematic of the Bosnian Muslims in general”.46 In Karadžić, the Trial Chamber supported the view that the significance of the location of a particular section of the group can matter: While the Bosnian Muslims in Srebrenica, in the eyes of the Chamber, “constituted a numerically small percentage” of the protected group, the Chamber also referred to the strategic importance of Srebrenica, its “symbolic stature as a refuge for Bosnian Muslims” and the fact that “its elimination despite its status as a safe area would be demonstrative of the potential fate of all Bosnian Muslims”.47

42 Jelisić (Trial Chamber) (note 2), para. 82. Other trial chambers made reference to the targeting of a “significant section” of the group; see Brđanin (Trial Chamber) (note 8), para. 703; Sikirica, Defence Motions (note 28), para. 525. 43

Cf. Kriangsak Kittichaisaree, International Criminal Law (2001), 73.

44

Paul (note 38), 314.

The Trial Chamber found that it was not possible to conclude beyond reasonable doubt that the defendant had performed such a selection, Jelisić (Trial Chamber) (note 2), para. 93. 45

46 Krstić (Appeals Chamber) (note 14), para. 37 and see para. 16. See also Popović et al. (Trial Chamber) (note 14), para. 832 and para. 865.

ICTY, Trial Chamber, The Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Judgment of 24 March 2016, para. 5672. 47

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A section which features with some regularity in the considerations of the tribunals is the leadership of the group. Both the Whitaker Report and the Report of the Commission of Experts on Yugoslavia had made particular reference to that part of the group;48 the latter concluding that a finding of genocide was possible if “essentially the total leadership” of a group had been targeted; and stating that the concept of leadership embraced “political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others”.49 The trial chambers today accept that the targeting of “a significant section of the group, such as its leadership” may be sufficient under the functional approach towards substantiality,50 with some chambers relying heavily on that particular factor.51 Other sections which have received prominent consideration include men of military age – a consideration which played a particular role in the Krstić case, where the killing of the Bosnian Muslim men in Srebrenica was concerned52 – but also the targeting of law enforcement or security personnel.53 A further example introduced by Kittichaisaree is the destruction of all child-bearing women: Even if they accounted for “only” 5–10% of the entire protected group, a finding of genocide would, in his view, still be possible.54 As in the case of the numerical approach, the assessment of substantiality does not only require that a part of the group has been identified, but also involves an evaluation of the effect that the targeting of this part has on the group as a whole. In that regard, the Jelisić Trial Chamber pointed out that, under the functional approach, a “more limited number” of targeted persons suffices if they were “selected for the im-

ECOSOC, Whitaker Report (note 18), para. 29; United Nations Security Council (UN SC), Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 (1994), Annex, para. 94. 48

49

UN SC (note 48).

Brđanin (Trial Chamber) (note 8), para. 703; see also Florian Jessberger, The Definition and the Elements of the Crime of Genocide, in: Paola Gaeta (ed.), The UN Genocide Convention: A Commentary (2009), 109. 50

51

Cf. Sikirica, Defence Motions (note 28), para. 77 and cf. para. 81.

52

Krstić (Trial Chamber) (note 14), para. 579.

53

UN SC (note 48), para. 94; similarly arguably Popović et al. (Trial Chamber) (note 14), para. 833.

54

Kittichaisaree (note 43), 73.

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pact that their disappearance would have upon the survival of the group as such”.55 The Commission of Experts on Yugoslavia had already noted that the character of an attack “on the leadership [of a protected group] must be viewed in the context of the fate or what happened to the rest of the group”,56 an opinion later echoed in the case law of the tribunals.57 Similar considerations were made with regard to persons selected on the basis of their representativeness of the group,58 and in Krstić, the tribunals went to some length to elaborate on the impact which the disappearance of the military-aged men would have had on the community of the Bosnian Muslims in Srebrenica “as such”,59 with the Appeals Chamber stating that the “physical destruction of the men […] had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction.”60

2. Towards the Disappearance of Substantiality? The Trouble with the Functional Approach The Krstić case certainly served to clarify the link between the intended part of the group and the impact of its fate on the group as a whole. Yet it was in the context of the same case – while still at trial stage – that certain difficulties in the application of the functional approach emerged which cannot be said to have lost their significance today. The case highlighted the concern that a consistent application of this approach might in the end defeat the very purpose of substantiality. The political leadership of a group, or its intellectuals, or its religious authorities, will usually constitute only a limited fraction of its size. In Krstić, it was a different part of the group which raised questions with regard to its significance for the group as a whole. According to the Defence, the Trial Chamber had concluded that Krstić had targeted the Bosnian 55

Jelisić (Trial Chamber) (note 2), para. 82.

56

UN SC (note 48), para. 94.

57

Cf. Sikirica, Defence Motions (note 28), para. 77.

58

Jelisić (Trial Chamber) (note 2), para. 93.

59

Krstić (Trial Chamber) (note 14), para. 597.

Krstić (Appeals Chamber) (note 14), para. 28. For another example of a reference to the fate of the group as a whole see Popović et al. (Trial Chamber) (note 14), para. 866. 60

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Muslim men of military age of Srebrenica. These formed part of the Bosnian Muslims of Srebrenica, which in turn were part of the actual protected group – the Bosnian Muslims.61 In the words of the Defence, the Trial Chamber had therefore identified “part of a part” of a group.62 If the Bosnian Muslim men of Srebrenica were just seen as part of the protected group as a whole (the Bosnian Muslims), it would not have been acceptable to see them as fulfilling the requirements of substantiality.63 In this particular case, the argument of the Defence was rejected – the Appeals Chamber found that the military-aged men had been considered not as “part of a part” of a group, but that their killing had been used as evidence for the fact that the perpetrator had intent to destroy a (substantial) part of the group, i.e. the Bosnian Muslims of Srebrenica.64 But the case does highlight difficulties which are inherent to the functional approach. It is its very purpose to allow the consideration of a “more limited number” of persons for the assessment of the “part of the group”,65 and it is a realistic concern that such limited numbers can considerably lower the threshold which substantiality was supposed to establish. More recently, the Tolimir case underlined the problem. Zdravko Tolimir, a highranking Bosnian Serb military commander, stood accused of genocide committed in Eastern Bosnia. The Prosecution supported its findings in this regard, inter alia, with a reference to the seizing and killing of three Bosnian Muslim leaders from the town of Žepa.66 It is this case which led Judge Bhandari in the ICJ case of Croatia v. Serbia to comment that the Trial Chamber had entered a finding of genocide “where only three killings [had been] proven”,67 and it is certainly true that the majority of the judges found

61

Krstić (Appeals Chamber) (note 14), para. 18.

62

Ibid., Partial Dissenting Opinion of Judge Shahabuddeen, para. 43.

63

Krstić (Appeals Chamber) (note 14), para. 18.

64

Ibid.

65

See Jelisić (Trial Chamber) (note 2), para. 82.

ICTY, The Prosecutor v. Zdravko Tolimir, IT-05-88/2-PT, Prosecution, Third Amended Indictment of 4 November 2009, para. 23.1. 66

67

ICJ, Croatia v. Serbia, Bhandari Opinion (note 31), para. 20.

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that “the acts of murder against these three men constitute[d] genocide”.68 It is also true that, in order to support its findings, it had cited with approval the above named conclusions by the Jelisić Trial Chamber on the functional approach69 – as did the Appeals Chamber when, in 2015, it reviewed the Tolimir judgment.70 And yet, it is questionable whether the functional approach had, in this case, been appropriately applied. The protected group, as the Trial Chamber affirmed, consisted of the Bosnian Muslims.71 If the “substantial” part of that group consisted of the three community leaders, the Jelisić formula would demand that they had been selected for the impact that their disappearance would have had on the Bosnian Muslims as a whole. Not even the Prosecution went as far as to claim that. If, on the other hand, the substantial part of the group had been the Bosnian Muslims of Eastern Bosnia (as the Trial Chamber at one point accepted),72 the Krstić problem would manifest itself again: The community leaders would be “part of a part” of the protected group,73 and their substantiality would be subject to justifiable doubt.74 In Krstić, the Appeals Chamber had found that the killing of the military-aged men had been used merely as evidence for the perpetrator’s intent to destroy a part of the group.75 In Tolimir, the Appeals Chamber was not quite as clear: In approving the Trial Chamber’s methodology, it stated that there was no error in finding that the selective targeting of community leaders “may amount to genocide and may be indicative of ICTY, Trial Chamber, Prosecutor v. Zdravko Tolimir, IT-05-88/2-T, Judgment of 12 December 2012, para. 780 (Tolimir (Trial Chamber)). 68

69

Ibid., para. 777, and see supra, text at note 42.

ICTY, Appeals Chamber, Prosecutor v. Zdravko Tolimir, IT-05-88/2-A, Judgment of 8 April 2015, para. 261 (Tolimir (Appeals Chamber)). 70

71

Tolimir (Trial Chamber) (note 68), para. 750.

72

Ibid., para. 774.

73

See supra, text at note 62.

In fact, the Trial Chamber in Tolimir did not even claim that the disappearance of the three leaders would have had a destructive impact on the Bosnian Muslims of Eastern Bosnia (which it had accepted as a substantial part of the group, supra, note 72), let alone on the Bosnian Muslims which it accepted as the protected group (ibid.). Instead, it noted that it took “into account the fate of the remaining population of Žepa”, Tolimir (Trial Chamber) (note 68), para. 781. Similarly Tolimir (Appeals Chamber) (note 70), para. 267. 74

75

See supra, text at note 64.

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genocidal intent”.76 It is a curious statement which leaves open the question whether the Chamber was referring to the selection of the leadership as evidence for intent or as a constitutive element of the crime – i.e. as incorporating subjective substantiality. What is clear, however, is the fact that the Appeals Chamber gave its seal of approval to the functional approach. In the circumstances of the particular case, it was not convinced that the disappearance of the community leaders had a destructive impact on the group as such,77 and it therefore reversed Tolimir’s conviction in that regard.78 But it expressly supported the underlying methodology and the possibility of finding that “genocide may be committed through the killings of only certain prominent members of the group”, provided always that they were selected with a view to the impact which their disappearance would have on the survival of the group.79 On that basis, however, it would in principle appear possible to establish substantiality when three members of a group had been selected – or indeed, depending on the circumstances – if the number had been lower than that. If the fate of the group is that closely tied up with the fate of its leaders, this might even be a consistent approach. But it is an approach which not only leads far away from the ordinary concept of “substantiality”, but also raises questions about the rationale for the imposition of the stigma of genocide. In an extreme case, a perpetrator who killed an influential community leader may be guilty of the same crime as a perpetrator who killed thousands of members of a protected group. One may question whether the degree of the criminal energy which either perpetrator has to expend is truly on the same level.

3. Further Questions Relating to the Functional Approach: The Problem of Selectivity There is a further question which the functional approach invites and which arises directly from the selected part that tends to constitute a strong focal point of consid76

Tolimir (Appeals Chamber) (note 68), para. 263.

77

Ibid., para. 267.

78

Ibid., para. 272.

Ibid., para. 263 and see also paras. 261–262. This criterion has indeed been understood as applying to all approaches which the tribunals have supported, Jessberger (note 50); Berster (note 2), 149. 79

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eration within the international criminal tribunals: i.e. the political leadership of the group. The difficulties which this perspective carries gain particular clarity in light of the group element which inhabits the concept of the crime of genocide. Political groups had been mentioned among the victims of genocide in General Assembly Resolution 96/I,80 but after considerable debate in the codification process, the decision was made not to include them within the remit of the Convention.81 The reasons advanced for that included in particular the view that they did not constitute stable groups;82 and the reference to “stable and permanent” groups to which the Convention supposedly intended to grant protection, did indeed survive into the age of the international criminal tribunals.83 (It is a view that courts criticism: If stability were in fact the determining factor, the inclusion of religious groups would certainly be not free from doubt.)84 Yet if this opinion were followed, the emphasis placed on the political leadership of the group as a section that carries substantiality would appear particularly curious. Political groups as such would not appear to be stable enough to warrant the protection of the Genocide Convention. Yet they would be sufficiently stable to represent national, racial, ethnic, and religious groups – the four groups that were expressly mentioned in the instrument. The impression would be hard to dispel that, through the application of this mechanism, certain political groups had been brought within the scope of the Convention through the back door. When the Tolimir case reached appeals stage, the applicant pointed out that the leadership of the group had in fact been given preferred status by comparison to the other members of the group.85 The Appeals Chamber did not accept that and stated that the functional approach aimed “at ensuring that the protective scope of the crime of genocide encompasse[d] the entire group”.86 And yet, the fact remains that 80

GA Res. 96 (I) of 11 December 1946, The Crime of Genocide, para. 2.

81

See on the debate Patrick Thornberry, International Law and the Rights of Minorities (1991), 68.

Ibid., 69, and Sonali Shah, The Oversight of the Last Great International Institution of the Twentieth Century: The International Criminal Court’s Definition of Genocide, Emory International Law Review 16 (2002), 351, 357. 82

83

Akayesu (Trial Chamber) (note 8), para. 516.

84

See on this Shah (note 82), 384.

85

Tolimir (Appeals Chamber) (note 68), para. 263.

86

Ibid.

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the killing of three, or possibly even three thousand, other members of the group might not have triggered the applicability of the Genocide Convention. The allocation of a particular status to some members of the group in preference to others became particularly apparent in Sikirica, when the Trial Chamber, in discussing the “leadership status” of those interned in the Keraterm camp, dismissed the suggestion that the prisoners were considered leaders of their communities and pointed out that there was evidence that “among those detained were taxi-drivers, schoolteachers, lawyers, pilots, butchers and café owners”.87 Some voices in the literature and indeed in international courts and tribunals go further and refer to a “qualitative group” which the perpetrator targeted, or a “qualitative criterion” that had been applied.88 These are unfortunate phrases: They invite the interpretation that the commentators follow the thinking which the perpetrators had laid down and accept that a differentiation among group members according to their “quality” is a possibility. It is true that the Tolimir Appeals Chamber, in line with existing case law, emphasised that the focus on the leadership of the group was justified by the fact that they had been selected for the impact that their disappearance would have on the group as a whole.89 This, indeed, is a mechanism that carries some significance: In particular, it imposes a cap on a judicial discretion which would otherwise know few bounds. At the same time, it appears questionable whether these parameters of the functional approach have always been appropriately applied in practice. A categorical emphasis on the leadership of the group90 can yield fundamentally different results, depending on the status which this section enjoys within the group itself. Some groups may foster a particularly cynical attitude towards their leadership, and the disappearance of this section may therefore have very limited effect on the survival of the group. Some religious groups may accord such reverence to their leaders that the killing of the latter might result in the collective suicide of the group. Other groups may find it impossible to survive in a hostile climate without the spiritual guidance offered by their teachers, 87

Sikirica, Defence Motions (note 28), para. 80.

Paul (note 38), 314; Krstić (Trial Chamber) (note 14), para. 634; ICJ, Bosnia v. Serbia (note 14), para. 200. 88

Tolimir (Appeals Chamber) (note 70), para. 263; see also Jelisić (Trial Chamber) (note 2), para. 82. 89

90

See Stakić (Trial Chamber) (note 8), para. 525; Brđanin (Trial Chamber) (note 8), para. 703.

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rather than their administrative or political leaders; a categorical rejection of teachers as qualifying for subjective substantiality91 may thus not always represent an adequate reflection of the importance which that section of society carries. Particular questions arise when the part of the group has been selected for the “strategic importance” of the location it inhabits:92 On its own, the position which a particular territory plays in the military planning of the perpetrators has little informative value for the question whether a “substantial” part of the group has been targeted. In theory, it is quite conceivable that the survival of the group can be guaranteed in spite of attempts to conquer the region in which it resides. Similar problems arise when the targeted part of the group is seen as “emblematic” for the group as a whole:93 The identification of the qualifying part of the group is not, after all, a quest for its most representative image, but for a part that carries substantiality. At the same time, the link which at least in theory has to exist between the targeted part of the group and the impact of its disappearance on the group as a whole does at least constitute an attempt to limit the arbitrariness of judicial decisions which is so apparent in the application of the numerical approach. And yet, traditionally, there had been a certain caution among the tribunals at least with regard to the independent application of the functional approach. In Krstić, the Appeals Chamber made clear that this approach was “only one of several” methods to assess the substantiality of the group.94 The numerical approach, on the other hand, had been considered the “necessary and important starting point” of any such assessment.95 The ICJ, in Bosnia v. Serbia, likewise expressed the view that the “qualitative approach cannot stand alone”96 and stated that “the Court does give the first criterion” – i.e. the numerical approach – “priority”.97 Tolimir may indeed have heralded a change in direction: In Judge Bhandari’s words, the Trial Chamber’s decision con91

See supra, text at note 87.

ICTY, Trial Chamber, Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Judgment of 24 March 2016, para. 5672 (Karadžić (Trial Chamber)). 92

93

Popović et al. (Trial Chamber) (note 14), para. 832; Krstić (Appeals Chamber) (note 14), para. 37.

94

Krstić (Appeals Chamber) (note 14), para. 12, footnote 22.

95

Ibid., para. 12.

96

ICJ, Bosnia v. Serbia (note 14), para. 200.

97

Ibid., para. 201. See on this reading of the judgment supra, note 31 and accompanying text.

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stituted “a departure from the Bosnia formula’s dogged insistence that the numerosity of the victims of predicate acts under Article II of the Genocide Convention be considered a pre-eminent factor in the substantiality equation”.98

C. Between Municipalities and the World: The Geographical Approach

When the ILC in 1996 issued its Draft Code of Crimes against the Peace and Security of Mankind, it pointed out, in the context of its analysis of the dolus specialis, that the intended destruction of a protected group “from every corner of the globe” was not a necessary requirement of the crime of genocide.99 Fourteen years earlier, the General Assembly had already referred to a very localised massacre – the killing of Palestinian civilians in the Sabra and Shatila refugee camps as “genocide”.100 These perspectives invite the consideration of a third way of assessing the required “part” of a protected group under the Genocide Convention: a method which may be termed the “geographical approach”. If this interpretation were applied, the destruction of the relevant part of the group would have to be assessed in the geographical context in which the crime had taken place. On the whole, the trial chambers have embraced the view that the relevant part of the group might well be limited to a particular geographical zone,101 a view which is also reflected in the case law of some domestic courts102 and which finds support in the literature.103

98

ICJ, Croatia v. Serbia, Bhandari Opinion (note 31), para. 20.

99

ILC (note 13), 45, Art. 17, para 8.

100

GA Res. 37/123D of 16 December 1982.

See Brđanin (Trial Chamber) (note 8), para. 703; Krstić (Trial Chamber) (note 14), para. 590; Jelisić (Trial Chamber) (note 2), para. 83. 101

Federal Court of Justice (Bundesgerichtshof), BGHSt 45, 65, 78; Federal Constitutional Court (Bundesverfassungsgericht), Decision of 12 December 2000, Europäische Grundrechte-Zeitschrift 28 (2001), 76, 79. 102

Nehemia Robinson, The Genocide Convention (1960), 63; Drost (note 3), 85; Jessberger (note 50), 108. 103

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In that regard, the view has been expressed that the part of the group might be limited to a single region or community.104 In its Review of the Indictment Pursuant to Article 61 in the case of Dragan Nikolić, the Trial Chamber focused only on the Vlasenica region when discussing the possibility that genocide might have been committed.105 In Krstić, the Trial Chamber outlined the possibility that genocide might be committed even in a municipality, and made express reference to the General Assembly resolution on Sabra and Shatila.106 Having considered both the Nikolić Review and the Sabra and Shatila resolution, the Jelisić Trial Chamber found that the “object and goal” of the Genocide Convention as well as its subsequent interpretation militated in favour of including genocidal intent which was limited only to a particular geographic zone.107 Opposition to the geographical approach tends not to concern the basic principle that genocidal intent can be limited to a particular area, but rather seeks to introduce a certain selectivity with regard to the qualifying area. The Sikirica Trial Chamber for instance accepted that the “part” of the group can be limited to “a country or a region or a single community”.108 But it would not have allowed a perspective that focused on those Bosnian Muslims and Bosnian Croats that had been victims of underlying acts of genocide “while detained in the Keraterm camp”.109 In the literature, Paul voiced objections to the inclusion of single municipalities (Ortschaften) as delineating the extent of the part of a group.110 These concerns highlight a problem which the geographical approach shares with the functional approach: Here too, the threshold for the commission of genocide might be lowered considerably. These difficulties were recognised by several trial chambers: In the Brđanin case, the Chamber expressed the view that a limitation of Sikirica, Defence Motions (note 28), para. 68; see also Robinson (note 103), 63, and ICTY, Trial Chamber, Prosecutor v. Dragan Nikolić, IT-94-2-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence of 20 October 1995, para. 34 (Nikolić, Review). 104

105

Nikolić, Review (note 104), para. 34.

106

Krstić (Trial Chamber) (note 14), para. 589.

107

Jelisić (Trial Chamber) (note 2), para. 83.

108

Sikirica, Defence Motions (note 28), para. 68.

109

Ibid.

110

Paul (note 38), 317.

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the “part” of the group to certain municipalities of the Autonomous Region of the Krajina could have a “distorting effect”,111 and a similar concern was voiced by the Stakić Trial Chamber, which however followed the geographical approach “with some hesitancy”.112 A further difficulty arises from the need to establish an intent on the side of the perpetrator which, while it may envisage only part of the group as the object of destruction, still has to target the group “as such”. The smaller the accepted geographical region, the more likely it is that intent can encompass factors which lie outside the objective to eliminate the group as such – especially if the perpetrator’s area of control extended beyond the boundaries of the particular zone. In some cases, perpetrators may have deliberately limited their intent to a specific region and could therefore not have been said to have targeted the group “as such”. Situations of this kind arise when a municipality or other geographic area is selected as the object of a punitive expedition – acts which will usually be covered by crimes against humanity, but might, because of their very limited nature, not fulfil the requirements of genocidal intent. This is more than a question of evidence: A motivation which diverges from the intent to destroy a protected group may occupy such a dominant position in the mindset of a perpetrator that it induces relative incompatibility with the dolus specialis of genocide.113 Most of all, however, the danger of the employment of arbitrary criteria forms as much part of the geographical as of the numerical approach.114 For one, terms like “municipality” are only on a very superficial level capable of establishing a notion of objectivity: Some municipalities may cover thousands of inhabitants, others have a population that counts in double digits.115 Yet even if the definition of the relevant geographical units showed a greater degree of uniformity, the question might still be asked on what basis their employment for the establishment of substantiality is performed. Why, for instance, would it be acceptable to consider genocidal intent as 111

Brđanin (Trial Chamber) (note 8), para. 966.

112

Stakić (Trial Chamber) (note 8), para. 523.

See on this Paul Behrens, Genocide and the Question of Motives, Journal of International Criminal Justice 10 (2012), 501, 519–522. 113

114

See supra, text at note 39.

In 2016, it was reported that the Swiss municipality Corippo had thirteen inhabitants, anon., Bewährungsprobe für Lega bei Tessiner Gemeindewahlen, Schweizerische Depeschenagentur Basisdienst Deutsch, 31 March 2016. 115

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limited to a region but not to a municipality?116 Why should a municipality qualify but not a detainment camp (especially given the fact that the population of some camps may exceed that of certain municipalities)?117 Would the population of individual houses fulfil the requirements of substantiality? The question is not entirely theoretical. In Croatia v. Serbia, the applicant referred, in substantiation of the claim that Serbian paramilitaries possessed genocidal intent, to an incident in which the Serbian paramilitary leader Željko Ražnatović (better known as “Arkan”) had reportedly told his troops to take care not to kill Serbs and that, “since Serbs were in the basements of buildings and the Croats were upstairs, rocket launchers should be used to ‘neutralize the first floor’”.118 In the eyes of the Court, this constituted only “one isolated phase in the very lengthy siege of Vukovar”, and the judges found that it was “difficult to infer anything from one isolated instance”.119 But if it is the main purpose of the geographical approach to avoid an unrealistically restrictive concept of genocidal intent – one where the perpetrator would be required to pursue the elimination of the group from the entire world120 – then there is no reason why the substantial part of the group could not consist of the population of a municipality, a detainment camp, or indeed individual houses. Yet what the divergent interpretations of the geographical approach show, is that the establishment of substantiality under this method is, once again, dependent on the decisions of individual chambers; and what may at first sight have appeared an application of objective parameters reveals itself as the subjective, and ultimately arbitrary, choice of the relevant judges. For all its faults, the geographical approach must, however, be credited with recognising one of the key characteristics of the concept. Genocide, even when carried out in the context of a larger campaign, is a crime committed by individuals; and individuals may find themselves involved in different aspects of such a campaign and endowed with different degrees of authority. Each individual’s range of action is limited 116

See supra, text at note 108 and at note 111.

117

See supra, text at note 109.

ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, para. 438. 118

119

Ibid.

120

See supra, text at note 99.

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by a variety of factors – of which geography is one – and the limitations of each individual need to be assessed in cases in which genocide has been charged. This consideration leads to the formulation of yet another approach: one whose focal point is the personality of the perpetrator itself. As such, it may claim to be best aligned with the nature of genocide as a crime predicated on the individual mindset of the person committing it. The international criminal tribunals did touch upon this approach, but it does not appear to have been recognised by them as a method in its own right. It is an approach which shall in the context of this chapter be termed the ‘individualised approach’ towards subjective substantiality, and it is suggested that this particular approach has a decisive role to play in any attempt to assess this element of specific genocidal intent.

III. Towards a New Assessment? The Individualised Approach Towards Substantiality A. The Individualised Approach and its Treatment in the Courts

The individualised approach is a method which takes as its basis the reach and authority of the particular perpetrator whose liability is at issue. It is based on the consideration that the consequences of a perpetrator’s (intended) activities depend to a significant degree on their own rank and position and that factors such as the number of victims that may be affected by a perpetrator’s actions and the geographical extent of their activities cannot be appropriately assessed without an investigation of their individual status. The adoption of this method is therefore predicated on the view that substantiality is not a static parameter, but a factor that is inseparable from the person of the perpetrator. Early appearances of the individualised approach in the case law of the tribunals reveal the close connection to the geographical approach from which the chambers derived it. In Krstić, the Appeals Chamber discussed the examples of Nazi Germany and of Rwanda in 1994 and found that the desire of the perpetrators to eliminate the Jews “probably did not extend, even at the height of [their] power, to an undertaking of that enterprise on a global scale”, and that the perpetrators of genocide in Rwanda

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“did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders”.121 On this basis, the Chamber argued that intent to destroy “will always be limited by the opportunity” presented to the perpetrator; the area of their activity “as well as the possible extent of [their] reach, should be considered”.122 This consideration was taken aboard by other chambers and the ICJ; yet the individualised approach could hardly be said to have emancipated itself from the geographical method of assessing substantiality. In most cases, the Krstić finding, linking “area of activity” and “possible extent of their reach”, was taken aboard with no or only minimal changes,123 and the analysis of this “extent of the reach” has, in the absence of geographical factors, not been given adequate weight. In Croatia v. Serbia, the ICJ mentioned the geographical approach, the functional approach, and the “quantitative element” as aspects it was prepared to take into account, but did not refer to the perpetrator’s personal reach as an individual factor.124 In Bosnia v. Serbia, the Court expressed a certain hesitancy towards the individualised method, but confused its approaches: It acknowledged that “the opportunity available to the perpetrators [was] significant”, but then found that the opportunity “might be so limited that the substantiality criterion is not met” and claimed that the ICTY had underlined the need for caution, “lest this approach might distort the definition of genocide”.125 Quite apart from the circular reasoning which inhabits that phrase, the Court misinterpreted the Trial Chamber in the Stakić case on whose judgment it sought to rely. There, the ICTY had expressly referred to the geographical approach and indeed to the use of specific geographical units: The Chamber had followed only “with hesitancy” an approach which allowed the establishment of specific intent where it referred “only to a limited geographical area, such as a municipality”.126 Ignoring the individualised approach is, however, much more than a missed opportunity. If, as the international criminal tribunals today agree, specific intent is the 121

Krstić (Appeals Chamber) (note 14), para. 13.

122

Ibid.

See Brđanin (Trial Chamber) (note 8), para. 702; Popović (Trial Chamber) (note 14), para. 832; Karadžić (Trial Chamber) (note 92), para. 555. 123

124

ICJ, Croatia v. Serbia (note 118), para. 142.

125

Id., Bosnia v. Serbia (note 14), para. 199.

126

Stakić (Trial Chamber) (note 8), para. 523.

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element which “characterises” genocide,127 then genocide is a concept which is predicated on elements which are highly personal to the individual perpetrator. Intent varies from situation to situation and from perpetrator to perpetrator: It is thus hardly adequate to work with an immutable formula under which destructive intent exists whenever “more than 3%” of a population are affected or where “more than a municipality” has been targeted. The perpetrator’s reach and control is an inescapable consideration in the determination of the question whether the required intent existed. The authority of a footsoldier is quite different from that of a commander of an army, and the substantiality of the part of the group differs accordingly. A hundred victims may mean that the footsoldier has done what they could have done to achieve the destruction of the group within their reach. The same number killed on orders of a general capable of controlling the fates of thousands may raise the question why they had limited their actions to that part of the group, if their reach was much more extensive. It is for that reason that the evaluation by the ICJ in Croatia v. Serbia of certain instances with which the parties sought to substantiate a finding of genocide is to be regretted. Reference has already been made to the situation involving the Serbian paramilitary leader Arkan who had specified parts of buildings at which rocket launchers should be aimed so that Croats, and not Serbs, would be targeted.128 It is certainly true that this speech, by itself, would not be conclusive for a finding on the matters with which the Court was concerned. Further inquiries would have been indicated, including an examination of Arkan’s general scope of control in the siege of Vukovar. For a conclusion on the responsibility of Serbia for the relevant acts, additional questions would have had to be raised about the attribution of Arkan’s actions to Serbia – as the ICJ itself pointed out.129 However, the simple dismissal of the incident with a reference that the speech constituted an “isolated instance”130 hardly amounts to an investigation which had dealt with the matter in appropriate depth. It is, in particular, difficult to dismiss the possibility that at least some of Arkan’s troops had, with these instructions, been given the opportunity to do all they

127

See supra, text at note 8.

128

See supra, text at note 118.

129

ICJ, Croatia v. Serbia (note 118), para. 438.

130

See supra, text at note 119.

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could have done to achieve the destruction of the group and that, therefore, from an individualised perspective, substantiality did exist. In her memorial, Croatia had also referred to cases of sexual mistreatment and to ethnically derogatory utterances which were made during the infliction of violence of this kind – a consideration which appears in the list of factors on whose basis the applicant advanced her claim that genocidal intent had existed.131 In this context, the fate of a male victim in Bapska may be seen as carrying particular significance for the establishment of intent: According to his statement, he had been told, during severe mistreatment of his genitals, that he would not “make any more little Croats”.132 The ICJ did find these statements credible and gave them “evidential weight”.133 It found that members of a protected group had been subjected to ill-treatment,134 and that the actus reus of genocide (in the alternative of Article II (b) Genocide Convention) had been fulfilled.135 However, where the establishment of genocidal intent was concerned, the Court contented itself with a rather generalised approach: It referred to the “overall context” of the act and supported the view that the actus reus had not been “committed with intent to destroy the Croats, but rather with that of forcing them to leave the regions concerned”; the context, in the ICJ’s eyes, did not allow the conclusion that genocidal intent was “the only reasonable inference to be drawn.”136 With specific reference to the list of factors which Croatia had supplied to support a finding of genocidal intent, the ICJ simply stated that these aspects did not “lead to the conclusion that there was an intent to destroy, in whole or in part, the Croats in the regions concerned”.137 See ICJ, Croatia v. Serbia (note 118), para. 408. The ICJ interprets the list of seventeen points as factors which Croatia invited the court to consider for a finding that a “systematic policy of targeting Croats with a view to their elimination from the regions concerned” existed. The nearly identical list in Croatia’s memorial, however, makes reference to “genocidal intent” which the State felt had been evidenced through these factors, ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Memorial of the Republic of Croatia (Vol. 1), 1 March 2001, 381–385, para. 8.16 (Croatia Memorial). 131

132

ICJ, Croatia v. Serbia, Croatia Memorial (note 131), 170, para. 4.91.

133

Id., Croatia v. Serbia (note 118), para. 314.

134

Ibid., para. 315.

135

Ibid., para. 360.

136

Ibid., para. 428.

137

Ibid., para. 439.

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In light of that, it appears that the above mentioned incident of sexual mistreatment, with the accompanying remarks, did not have a significant effect on the Court’s determination of genocidal intent. It rather seems that the ICJ applied broad brushstrokes to the establishment of that element – a method which cannot be said to be appropriate for a crime which so strongly depends on personalised factors.138 That is true even for a court which has to deal with genocide in the context of State responsibility: There, too, the finding that the conduct had been committed has to begin with the acts of individual perpetrators whose conduct is attributable to the State – and indeed with their specific mindset.139 The lack of attention dedicated to the perpetrator’s statements in particular is surprising: Derogatory utterances have, of course, been accepted by international criminal tribunals as aspects on which a finding of genocidal intent can be based.140 For the individualised approach, their significance reaches beyond the level of evidentiary value: Situations of this kind may well confirm that a low-ranking individual perpetrator had fulfilled their personal aim to destroy a significant part of the group and thus established a constitutive condition of the crime. The fact that this possibility did not enter the ICJ’s discussions on substantiality is arguably in line with the reluctance which the Court had expressed on the individualised approach even in Bosnia v. Serbia.141 It is also true that the evaluation of genocidal intent, which involves a factual and detailed consideration of the mindset of individual perpetrators, carries difficulties for a body which has no criminal jurisdiction.142 It is, in that regard, illuminating to consider the Separate Opinion of Judge Skotnikov, who noted that the Court had to deal with matters “which it is ill-equipped to resolve”.143 At the same time, the result which the Court reached, and the way which led to its adoption, leads far away from the concept of genocide as a crime that is committed by See, on the whole, the discussion in Paul Behrens, Between Abstract Event and Individualised Crime: Genocidal Intent in the Case of Croatia, LJIL 28 (2015), 923, 925–932. 138

See on this ILC, Report on the Work of Its 53rd Session, ILC Yearbook 2001, Vol. II, Part 2, 34, Art. 2, comm. para. 3. 139

140

See, e.g., Kayishema (Trial Chamber) (note 8), para. 538.

141

See supra, text at note 125.

142

See on this Behrens (note 138), footnote 2.

ICJ, Croatia v. Serbia (note 118), Separate Opinion of Judge Skotnikov, para. 12. For an opposing view, see ibid., Separate Opinion of Judge Sebutinde, para. 21. 143

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individuals and strongly dependent on factors that find their basis in their relevant intent.

B. The Individualised Approach and the Search for Objectivity

The ICJ’s failure to appreciate the nature of genocidal intent as conditioned by highly individualised factors is not the only criticism that attaches to the generalised approach towards genocide which the Court promoted in Bosnia v. Serbia. A dismissal of the individualised method of establishing substantiality also means that the evaluation of this factor has to rely on methods which fail to fulfil the need for objectivity in the assessment of the constitutive elements of international crimes. By comparison, it must count among the particular advantages of the individualised approach that it overcomes the spectre of arbitrariness that haunts the numerical and geographical approaches and is often enough present even in the application of the functional approach. It might seem ironic that the existence of objectivity (and the lack thereof) can so strongly run counter to first appearances. Both the numerical and the geographical approach appear, at first blush, to identify objective factors (a certain percentage, a certain geographical unit) to establish substantiality. That, however, masks a highly subjective procedure – for the determination of the relevant units lies within the discretion of the individual chamber. The individualised approach seems to lack objective parameters from the outset: The substantiality of the relevant part of the group can vary widely from case to case. And yet, it employs an objective and immutable yardstick: In every case, the decisive question concerns the substantiality that the individual perpetrator, within their particular reach and authority, could have achieved. This is an element which can be verified and which, if the trial chamber committed an error in its assessment, can be subject to review on appeal. A further consideration, which is closely linked to the objectivity of the individualised approach, arises from the application of fundamental principles of international criminal justice – and in particular, from the rule nullum crimen sine lege,144 which is Art. 15 (1) International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171; Art. 7 (1) European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 April 1950, UNTS 213, 221; Art. 9 American Convention on Human Rights, 21 November 1969, UNTS 1144, 123. 144

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enshrined in the major human rights treaties as well as the Statute of the ICC.145 Its main emanations, including the requirement of a foreseeable and accessible law, have also been accepted by the international criminal tribunals.146 In that regard, the European Court of Human Rights found that “an offence must be clearly defined in law”, and that this requirement is satisfied when the individual can know “if need be, with the assistance of the courts’ interpretation” of the relevant rule, “what acts and omissions will make him criminally liable.”147 That, however, presupposes as a very minimum, a reasoning by the relevant courts which is based on objective and verifiable factors: The adoption of arbitrary considerations does not offer any legal certainty. As the examination of the geographical approach has shown, different legal commentators have advanced widely differing understandings of the geographical unit that can be said to suffice for a finding of substantiality in that regard.148 Given the fact that, for instance, regarding the qualification of municipalities in this context, the Krstić Trial Chamber relied on the view that intent to destroy a group “even” within a municipality “may be characterised as genocide”,149 while the Brđanin Trial Chamber found that “narrowing down the scope of the ‘targeted part’” to municipalities of the Autonomous Region of Krajina “could have a distorting effect”,150 the “assistance” provided by the courts’ interpretation of the crime of genocide towards the establishment of foreseeability cannot be said to be particularly productive. It is in this context that the individualised approach demonstrates particular strength. Where the application of this method is concerned, the perpetrators are not asked to reach a correct understanding of substantiality on the basis of static parameters – they are not required to know whether a municipality or a detention camp qualifies in that regard or whether 2% or 3% constitute a sufficiently substantial proportion of the population. The question is simpler than that: The task of the interna145

Art. 22 (1) Rome Statute.

ICTY, Appeals Chamber, Prosecutor v. Milorad Krnojelac, IT-97-25-A, Judgment of 17 September 2003, para. 220. 146

147 European Court of Human Rights, Cantoni v. France, Appl. No. 17862/91, Judgment of 11 November 1996, para. 29. 148

See supra, text at notes 108–110.

149

Krstić (Trial Chamber) (note 14), para. 589.

150

Brđanin (Trial Chamber) (note 8), para. 966.

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tional criminal tribunals is to evaluate whether, in the context of the perpetrator’s own field of control and in their own field of vision, the targeted part of the group had been substantial. That is an objective and verifiable standard; and once this element has been positively established, it is difficult for any perpetrator to claim that the foreseeability of this part of the crime had not been in existence.

IV. Concluding Thoughts The assessment of substantiality moves precariously between two principal purposes of the Genocide Convention: on the one hand, the criminalisation of behaviour whose particular gravity also implies a particular threshold; on the other hand, the protection of the relevant groups against their intended destruction. It is this latter aspect which underlines the strength of the legal concept of genocide and of the focus which it places on the subjective side of the crime. If the concept of genocide were to refer to a phenomenon which required substantiality on the objective side and which, for instance, were only fulfilled once actual victim numbers had surpassed a certain threshold, a finding of its existence would invariably mean that the preventive measures of the international community have failed. If prevention is to be achieved through the threat of criminal law at all, it has to start at an earlier stage of the development. As genocide begins in the mind of the perpetrator, the affirmed resolve of a génocidaire forms an essential element of their liability, and there is justification for a law which triggers the preventative obligation even at a stage when subjective substantiality is not yet matched by substantiality on the objective side. But even the identification of subjective substantiality is, in light of these considerations, not an easy task – especially when judges proceed on the basis of approaches which employ static parameters. A threshold which is set too high – say, at the targeted destruction of nearly the entire group or the destruction of the group from nearly “every corner of the world” – risks the inapplicability of the Genocide Convention to the great majority of situations and can thus result in the failure of its protective purpose. A threshold which is set too low no longer conveys the particular stigma which criminalisation of genocide carries and thus dilutes the deterrent effect which inhabits a prosecution under this category.

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A further difficulty arises from the need to assure, in the assessment of the criterion of substantiality, a degree of certainty of the law. It is an aspect which occupies a position of considerable importance: Not only does it constitute part of the rights of the accused, but it also plays, especially through the condition of foreseeability of the criminal law, a significant role for the general acceptability of the system of international criminal law. A system of this kind can only have any hope of support among those whom its rules address if its message is clear and its interpretation as free as possible from arbitrary considerations. It may even be the case that the international criminal tribunals appreciate the shortcomings that arise in this regard from the imposition of static, yet subjective, requirements for the establishment of substantiality. An understanding of this kind would at least explain efforts of the Appeals Chamber in Krstić to play down the significance of the various approaches towards substantiality by referring to them as “useful guidelines” and stating that their applicability and weight will “vary depending on the circumstances of a particular case”.151 At the same time, this observation only compounds the problem, and it almost unavoidably endangers the consistency of the law. If the assessment of the “part” of the group is ultimately left to the discretion of trial chambers,152 it is entirely possible that a perpetrator who intended to kill thousands of members of a protected group, is acquitted of genocide because their judges had applied a strict numerical approach, whereas their fellow in crime, whose destructive intent was limited to a much smaller municipality, is convicted under an interpretation which places greater emphasis on the geographical approach. That does not mean that the numerical approach should be preferred to the geographical method. But as the law currently stands, defendants are subjected to an arbitrary evaluation of their activities, and the certainty and consistency of international criminal law suffers as a result. It is for that reason that it is suggested that the individualised approach must be an inevitable part of any assessment of a situation in which subjective substantiality as an element of genocide is at issue. Unlike the other methods which have been employed by the international criminal tribunals it allows for a consistent evaluation of the Krstić (Appeals Chamber) (note 14), para. 14; see also Brđanin (Trial Chamber) (note 8), para. 702; Popović et al. (Trial Chamber) (note 14), para. 832. Cf. Jessberger (note 50), 108. 151

152

Krstić (Trial Chamber) (note 14), para. 590.

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“substantial” part of the group and leads to the application of objective parameters which withdraw the assessment from the realm of arbitrariness and result in conclusions capable of review by a higher instance. It is, at the same time, not a consideration which should be entirely alien to courts and tribunals tasked with the interpretation of the Genocide Convention and the subsequent instruments of international criminal law: It is merely the consistent application of genocide as a crime whose particular characteristic lies in the perpetrator’s destructive intent. If the blameworthiness that distinguishes genocide from other crimes is to be seen on the subjective side, then the interpretation of the “part of the group” which the perpetrator seeks to destroy, has to be seen in the same context: The relevant part is substantial because, given their reach and the limits of their opportunity, it is substantial to the perpetrator. The individualised approach can thus claim to be the method which is best aligned with the concept of genocide as a crime predicated upon individual intent. It does not remove the threshold of the crime: A perpetrator still has to take a high psychological hurdle if they are to direct their intent at the destruction of a protected group and to formulate a resolve to eliminate that part of it which, from their perspective, is substantial. But the individualised approach also fulfils the protective purpose of the Genocide Convention and arguably does so better than the other approaches. It removes the stereotypical image of genocide as a crime whose perpetrators are persons in high authority. The development of genocidal intent is possible by average individuals, and the international community does not require an act by a political or military leader to engage in preventative efforts. It is an uncomfortable, yet inescapable, fact that genocide can be committed by ordinary persons. The footsoldier, the journalist, the priest are quite capable of fulfilling the requirements of substantiality – and of thinking the unthinkable.

Certain Iranian Assets: The Limits of Anti-Terrorism Measures in Light of State Immunity and Standards of Treatment PHILIPP JANIG AND SARA MANSOUR FALLAH

ABSTRACT: On 14 June 2016, Iran lodged an application against the United States in the Case concerning Certain Iranian Assets before the ICJ. The case was filed shortly after the US Supreme Court’s judgment in Bank Markazi v. Peterson, confirming that victims of terrorist attacks, in which Iran was allegedly involved, may execute domestic judgments against property of Iran’s central bank. Over the course of the last decades, the US has gradually opened its courts for tort claims of terrorism victims against Iran by various legislative and executive acts. Iran now argues that those measures violate provisions of the 1955 Treaty of Amity, Economic Relations, and Consular Rights. This article discusses the pressing question Iran’s application raises for contemporary international law: To what extent may anti-terrorism measures prevail over State immunity and treatment standards? To answer the question, this contribution provides an analysis of legal issues raised in the application and discusses potential arguments by both States. By doing so, it highlights the most controversial questions the ICJ is requested to resolve, such as the legal validity of a terrorism exception to State immunity, the content of contemporary treatment standards for foreign investments, and their relevance in light of unilateral measures against State-owned corporations. KEYWORDS: Certain Iranian Assets, United States, Iran, State Immunity, Standards of Protection, Expropriation, Fair and Equitable Treatment, Full Protection and Security, Terrorism Exception

I. Factual Background While reaching consensus on the Iranian nuclear programme, diplomatic tensions persist, as Iran lodged a new application against the United States of America (US)

Researchers and Lecturers at the Section for International Law and International Relations, University of Vienna. The authors may be contacted via [email protected] and sara.mansour. [email protected], respectively.

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before the International Court of Justice (ICJ).1 This is already the fourth case between the two States before the ICJ that to an extent revolves around their 1955 Treaty of Amity, Economic Relations, and Consular Rights (Treaty of Amity).2 The new case concerns the treatment of blocked Iranian assets – both bank accounts as well as real properties – located in the US. Apart from imposing various sanctions on Iran based on its disputed nuclear energy programme and non-compliance with the Non-Proliferation Safeguards Agreement and authorised by the United Nations (UN), the US has also taken unilateral measures against Iran for supporting terrorist organisations and violating human rights.3 The measures challenged by Iran in this case are those taken unilaterally by the US for Iran’s alleged involvement in terrorist activities based, domestically, on its classification as a ‘State sponsor of terrorism’ by the US State Department.4 The US framework of anti-terrorism measures against Iran in part dates back to 1983, when the US was targeted by suicide bombers presumably belonging to Hezbollah – an organisation Iran is said to have continuously supported5 – who attacked US army barracks in Beirut. In the attack 241 US servicemen were killed, making it the most fatal prior to 11 September 2001.6 Subsequently, and in response to other terrorist attacks, the US took several legislative and executive measures to allow victims of terror attacks to resort to remedies against International Court of Justice (ICJ), Certain Iranian Assets (Iran v. United States), Application Instituting Proceedings of 14 June 2016. 1

2 Treaty of Amity, Economic Relations, and Consular Rights Between the United States of America and Iran, 15 August 1955, UNTS 284, 93 (Treaty of Amity); ICJ, United States Diplomatic and Consular Staff in Tehran (Tehran Hostages) (United States v. Iran), Merits, Judgment of 24 May 1980, ICJ Reports 1980, 3; id., Aerial Incident of 3 July 1988 (Iran v. United States), Order of 22 February 1996, ICJ Reports 1996, 9 (discontinued after the governments came to a settlement, in which the US agreed to pay USD 131.8 million in damages for shooting down an Iranian passenger airplane); id., Oil Platforms (Iran v. United States), Merits, Judgment of 6 November 2003, ICJ Reports 2003, 161. 3 For summaries and overviews on the current sanctions regime see US Department of State, Iran Sanctions, available at: http://www.state.gov/e/eb/tfs/spi/iran/index.htm (accessed on 1 September 2016). 4 See id., State Sponsors of Terrorism, available at: http://www.state.gov/j/ct/list/c14151.htm (accessed on 1 September 2016).

Matthew Lewitt, The Origins of Hezbollah, The Atlantic, 23 October 2013, available at: http:// www.theatlantic.com/international/archive/2013/10/the-origins-of-hezbollah/280809/ (accessed on 1 September 2016). 5

6 Victor Grandaubert, Is there a place for sovereign immunity in the fight against terrorism? The US Supreme Court says ‘no’ in Bank Markazi v. Peterson, 19 May 2016, available at: http://www.ejiltalk. org/is-there-a-place-for-sovereign-immunity-in-the-fight-against-terrorism-the-us-supreme-court-saysno-in-bank-markazi-v-peterson/ (accessed on 1 September 2016).

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‘State sponsors of terrorism’ in domestic US courts by granting them a private right of action. Moreover, the US took measures to block assets held by or on behalf of those States in the US. The first step for this was made by introducing the terrorism exception into the Foreign Sovereign Immunities Act of 1976 (FSIA) by an amendment in 1996 (which was later expanded in 2008), essentially removing immunities in terror-related proceedings,7 and allowing that judgments in such cases are executed against property of the State and of separate juridical entities.8 The possibilities to enforce those judgments were broadened by the Terrorism Risk Insurance Act 2002 (TRIA), which provided that “the blocked assets of that terrorist party” – including State sponsors of terrorism – are subject to execution.9 In 2012, all property of Iran and Iranian financial institutions was declared blocked assets by way of Executive Order 13599.10 In particular the measures taken in 2012 have led to a spike in blocked Iranian assets in the US,11 which currently amount to close to USD 2 billion in assets in addition to twelve blocked real properties of unknown value in major US cities.12 Over the course of the years, a considerable number of terrorism cases were lodged against Iran in US courts,13 the most

Cases “in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency”, see 28 U.S.C. § 1605A (a) (1). 7

8

28 U.S.C. § 1610 (g).

9

Terrorism Risk Insurance Act (TRIA), H.R. 3210, Publ.L. 107–297, Section 201 (1).

Executive Order 13599, Blocking Property of the Government of Iran and Iranian Financial Institution, 5 February 2012, Federal Register Vol. 77, No. 26, 6659. 10

11 From USD 55.4 million in 2011 to USD 1,936.4 million in 2012, see Office of Foreign Assets Control US Department of the Treasury, Terrorist Asset Report: Calendar Year 2012, 12, available at: https://www.treasury.gov/resource-center/sanctions/Programs/Documents/tar2012.pdf (accessed on 26 August 2016).

See id., Terrorist Asset Report: Calendar Year 2015, 12–14, available at: https://www.treasury. gov/resource-center/sanctions/Programs/Documents/tar2015.pdf (accessed on 2 December 2016). 12

13 See ICJ, Certain Iranian Assets (note 1), Appendix 2, Table 2 (listing judgments as of 12 June 2016); cf. Terrorism Judgments against Iran, available at: https://www.kirk.senate.gov/pdfs/American IranianJudgments.pdf (accessed on 27 August 2016); Orde Kittrie, Iran Still Owes $53 Billion in Unpaid U.S. Court Judgments to American Victims of Iranian Terrorism, 9 May 2016, available at: http:// www.defenddemocracy.org/media-hit/orde-kittrie-after-supreme-court-decision-iran-still-owes-53billion-in-unpaid-us-cour/ (accessed on 26 August 2016).

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pertinent being Peterson v. Iran, based on the Beirut bombings in 1983.14 The Iran Threat Reduction and Syria Human Rights Act 2012 (ITRSHRA) further enumerated assets that are subject to execution, explicitly referring to Peterson v. Iran.15 Iran initially declined to participate in domestic US court proceedings by referring to its State immunity. As of now, that stance has evolved into fierce protest and accumulated in challenging the measures before the ICJ.16 On the one hand, Iran categorically denies that it sponsors terrorism and was involved in terrorist attacks such as the Beirut bombings or – as recent judgments in US courts claim to have determined – the attacks of 9/11.17 On the other hand, it argues that the US measures violate its rights under the Treaty of Amity and in particular relies on arguments concerning State immunity and standards of treatment for property of Iranian entities in the US.18

14 US Supreme Court, Bank Markazi v. Peterson, No. 14–770, 578 U.S. ___(2016); other cases registered so far against Iran arise out of a wide range of terrorist incidents, i.a. the attacks of 9/11 (11 September 2001) and an attack on an Israeli car along the Westbank border by the Palestine Islamic Jihad (17 June 2003).

Iran Threat Reduction and Syria Human Rights Act (ITRSHRA), 3 January 2012, H.R. 1905, 22 U.S.C. Chapter 94. 15

Rick Gladstone, Iran Accuses U.S. of Theft in $2 Billion Court Ruling for Terror Victims, New York Times, 21 April 2016, available at: http://www.nytimes.com/2016/04/22/world/middleeast/iranaccuses-us-of-theft-in-2-billion-court-ruling-for-terror-victims.html (accessed on 1 September 2016). 16

In Havlish v. Bin Laden a US District Court – citing the 9/11 Commission Report – held that Iran provided “direct and material support for al Qaeda’s 9/11 attacks” by allowing some of the future hijackers to travel through Iran to Afghanistan without stamping their Saudi passport, as well as by being responsible for a “senior Hizbollah operative” who supported travel coordination for the hijackers, see United States District Court (Southern District of New York), In Re Terrorist Attacks on September 11, 2001, paras. 132–134, available at: http://nylawyer.nylj.com/adgifs/decisions/122711daniels.pdf (accessed on 26 April 2017). 17

18 So far, the proceedings are at a very early stage. On 1 May 2017, the United States filed preliminary objections on jurisdiction and admissibility. As a result, the ICJ suspended the proceedings on the merits and fixed the time limits for the written statements of Iran on jurisdiction and admissibility for 1 September 2017. This article therefore departs from Iran’s application and domestic court proceedings as a basis to discuss arguments.

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II. Jurisdiction of the International Court of Justice A. The Treaty of Amity and its Current Legal Status

For close to 40 years, the US-Iranian ties were characterised by rather unfriendly – formally non-existing – diplomatic relations, a sanctions regime crippling their economic interaction, and several violent incidents.19 Yet, the two States are parties to a treaty on friendship, commercial and consular relations. The Treaty of Amity is only one instance in a long-standing tradition of the US to conclude Friendship, Commerce, and Navigation Treaties (FCN) and a successor to other bilateral cooperation treaties concluded between the US and Iran since the 1920s.20 In light of the decades-long tensions, it is conceivable to question whether the Treaty still persists at all. Indeed, in some instances the Treaty’s validity was contested: In Phelps Dodge Corp. v. Iran, Iran argued that the Treaty had been terminated by “implication” as a result of US military and economic sanctions.21 In fact, various factual circumstances might warrant the parties’ unilateral termination based on either material breaches22 (e.g. diplomatic and consular rights violations by Iran confirmed in Tehran Hostages, or the sanctions regimes imposed by the US claimed to be in breach of the Treaty of Amity) or fundamental changes of circumstances23 (e.g. the Islamic revolution in Iran, or the rise of terrorism following 9/11). Thus, grounds for termination are not lacking, and the Treaty itself even provides for the possibility to terminate without reason upon one year’s written notice.24 However, the question of validity – at least Such as, i.a., the Hostage Crisis of 1979, in which the US embassy in Tehran was stormed by Iranian militants and 52 American diplomats and citizens were held hostage for 444 days, or the Aerial Incident of 1988, in which an Iranian passenger flight was shot down on its way to Dubai by a US Navy missile killing all 290 passengers. 19

20 See, e.g., Provisional Agreement relating to Commercial and other Relations, 14 May 1928; Provisional Agreement relating to Personal Status and Family Law, 11 July 1928; Reciprocal Trade Agreement, 8 April 1943.

A claim that was rejected by the tribunal in that case, see Iran-US Claims Tribunal (IUSCT), Phelps Dodge Corp. v. Iran, Award of 19 March 1986, 10 IUSCTR 121; Charles Nelson Brower/Jason Brueschke, The Iran-United States Claims Tribunal (1998), 482. 21

Under customary international law as codified in Art. 60 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). 22

23

Art. 62 VCLT.

The US has made use of this option in relation to Nicaragua, when it terminated the 1956 Treaty of Friendship on 1 May 1985 in the course of the proceedings before the ICJ. ICJ, Military and Para24

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in judicial practice – has remained quite undisputed, with both the Iran-US Claims Tribunal (IUSCT) and the ICJ upholding the Treaty’s validity on various occasions.25 On the one hand, there has never been a formal termination by one of the parties. A tacit termination or suspension of the treaty that would take automatic effect by virtue of ongoing violations of treaty provisions by both parties is neither provided for in the VCLT nor in customary law, as explicitly held by the ICJ in Gabčíkovo-Nagymaros.26 On the other hand, it has been acknowledged that the parties continuously refer to the Treaty or its provisions.27 The Treaty of Amity therefore remains in force until notice of termination is given by either party. Hence, the interesting – and predominantly political – issue here is why both States seek to be continuously bound by the Treaty. Although the reasons for the ‘no war – no peace’ status quo between the US and Iran remain heavily discussed in political science, it is commonly accepted that both countries are – on occasion – geopolitically dependent on mutual strategic cooperation.28 Until their ties revert to manifest military Activities In and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 36; Art. XXIII (3) Treaty of Amity. 25 See ICJ, Oil Platforms (Iran v. United States), Preliminary Objections, Judgment of 12 December 1996, ICJ Reports 1996, 803, para. 15 (“the Parties do not contest that the Treaty of 1955 […] is moreover still in force. The Court recalls that it had decided in 1980 that the Treaty of 1955 was applicable at that time […]; none of the circumstances brought to its knowledge in the present case would cause it now to depart from that view”); see also IUSCT, American International Group Inc. v. Iran, Concurring Opinion of Judge Richard Mosk, 19 December 1983, 4 IUSCTR 111, 112–116 (stating that the Treaty has never been terminated and therefore remained in effect); id., INA Corp. v. Iran, Award of 13 August 1985, 8 IUSCTR 373, 378–379; id., Petrolane Inc. v. Iran, Award of 14 August 1991, 27 IUSCTR 64, 99.

See ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 114 (“this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States […] might be unilaterally set aside on grounds of reciprocal noncompliance.”); IUSCT, Amoco International Finance Corp. v. Iran, Award of 14 July 1987, 15 IUSCTR 189, 217; on the customary duty to notify of a termination see Mario Prost, Article 65, in: Olivier Corten/Pierre Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary, Vol. II (2011), 1487. 26

This is both true for Iran, with the application at hand, as well as the US, see, e.g., United States, Memorandum of the Department of State Legal Adviser on the Application of the Treaty of Amity to Expropriation in Iran of 13 October 1983, ILM 22 (1983), 1406; see also more recently US Court of Appeals for the District of Columbia Circuit, McKesson Corp. et al. v. Iran, Brief for the United States as Amicus Curiae, 5; United States Court of Appeals (2nd Circuit), Weinstein v. Iran, 609 F.3d 43 (2010), 52 (“the treaty of amity […] took effect in 1957 and still remains in place”). 27

Reza Sanati, Beyond the Domestic Picture: the Geopolitical Factors That Have Formed Contemporary Iran-US Relations, Global Change, Peace & Security 26 (2014), 125, 132. 28

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friendship again, both sides of the dispute – being well aware of this interdependence – seem to leave doors open for any kind of dispute settlement fora that are in place, including by virtue of the Treaty of Amity.29

B. The Compromissory Clause as Applied to Certain Iranian Assets

The relic-like Treaty, originating from times of close cooperation, still proves to be a useful tool to initiate proceedings before the ICJ. As neither Iran nor the US currently recognise the ICJ’s compulsory jurisdiction, Iran relies on the compromissory clause contained in Article XXI (2) Treaty of Amity. Accordingly, any dispute between the parties as to the “interpretation or application of the present treaty, not satisfactorily adjusted by diplomacy” may be submitted to the ICJ.30 By adopting various measures against Iran and Iranian companies, the US allegedly violated provisions of the Treaty and thus created a dispute on the application of the Treaty. This Treaty clause has, in fact, already served as a basis for jurisdiction in two previous cases, Tehran Hostages and Oil Platforms. While in Tehran Hostages it was quite clear that the taking of hostages was covered by the Treaty of Amity’s scope of application, the question was rather disputed in Oil Platforms. In the latter, the ICJ employed a test which essentially demanded assessing whether the alleged violations would fall within the provisions of the treaty.31 This approach has sparked some criticism by judges of the Court as being too ‘inviting’32 or as reaching too far into the merits of the dispute and thus being inappropriate for the jurisdictional phase.33

29 Farshad Kashani, America and Iran: Still Friends, According to This Little-Known Treaty, The National Interest, 9 June 2016, available at: http://nationalinterest.org/feature/america-iran-still-friendsaccording-little-known-treaty-16524?page=2 (accessed on 17 January 2017). 30

Art. XXI (2) Treaty of Amity.

31

ICJ, Oil Platforms, Preliminary Objections (note 25), para. 16.

Judge Oda noted that “the Court […] should rather have determined that a dispute […] arising from the attack on and destruction of the Iranian oil platforms falls within the purview of the 1955 Treaty of Amity” and that “the Court might […] invit[e] a case ‘through the back door’”, see ibid., Separate Opinion of Judge Oda, ICJ Reports 1996, 899, paras. 25–26. 32

33 Ibid., Separate Opinion of Judge Shahabudeen, ICJ Reports 1996, 840; see also ibid., Separate Opinion of Judge Ranjeva, ICJ Reports 1996, 846.

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Applying the test employed in Oil Platforms, Iran will – in all probability – succeed to generally establish the jurisdiction of the ICJ, while its extent still remains unclear.34 Iran argues breaches that appear to fall under the following provisions of the Treaty: ignoring the separate judicial status of Iranian entities (Article III (1) Treaty of Amity), denying them access to justice by way of dismissing claims of immunity (Article III (2)), according unfair and inequitable treatment (Article IV (1)), denying their constant protection under international standards by abrogating immunities and allowing for execution against property (Article IV (2)), and the denial of a quite general inter-State guarantee of “freedom of commerce” (Article X (1)). It appears unlikely that none of the allegations by Iran falls – as a matter of jurisdiction ratione materiae – within one of these treaty provisions, especially considering the broad scope of Article X (1). Most of these provisions contain, however, rights conferred upon ‘nationals’ and ‘companies’, raising the question whether the entities pertinent to Certain Iranian Assets – namely State-owned corporations – may be subsumed under these terms. In the event that jurisdiction on the basis of these provisions is denied, Article X (1) may serve as a jurisdictional ‘fall-back’ argument, since it is an obligation owed to the State itself.35 As the ICJ has previously determined that an attack on an offshore oil platform falls within the protected scope of “freedom of commerce”,36 Iran will probably not encounter difficulties in arguing that the seizure and taking of assets is capable of running contrary to such a guarantee. In conclusion, the ICJ will most likely not dismiss the case on jurisdictional grounds. However, its decision in this regard will affect a great deal of Iran’s arguments on the merits (especially regarding the interpretation of ‘companies’ and ‘nationals’, see infra, IV. B.).

34 See also Julian Ku, Does the International Court of Justice Have Jurisdiction over Iran’s Claim Against the U.S? Actually, Maybe It Does, Opinio Juris Blog, 16 June 2016, available at: http://opinio juris.org/2016/06/16/does-the-international-court-of-justice-have-jurisdiction-over-irans-complaintagainst-the-u-s-actually-maybe-it-does/ (accessed on 1 September 2016); Elena Chachko, Iran Sues the U.S. in the ICJ: Preliminary Thoughts, Lawfare Blog, 18 June 2016, available at: https://www.law fareblog.com/iran-sues-us-icj-%E2%80%93-preliminary-thoughts (accessed on 1 September 2016).

“Between the territories of the two High Contracting Parties there shall be freedom of commerce and navigation”, Art. X (1) Treaty of Amity. 35

36 In essence, the ICJ derived its conclusion from the fact that the destruction of the oil platforms was capable of negatively affecting export trade and thereby impeding the “freedom of commerce”, see ICJ, Oil Platforms, Preliminary Objections (note 25), para. 51.

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III. Some Preliminary Issues of Treaty Interpretation A. The Current Understanding of Treatment Standards in the Treaty of Amity

A majority of the arguments to be brought forward in Certain Iranian Assets depends on treaty interpretation as a precondition. Standards such as Fair and Equitable Treatment (FET), Full Protection and Security (FPS), or Most Favoured Nation (MFN) treatment have been interpreted expansively in modern day investment arbitration. The question arising is, however, whether terms used in a treaty concluded in 1955 may be interpreted using contemporary practice of investment arbitration tribunals.37 The traditional customary rules of treaty interpretation enshrined in Articles 31 and 32 Vienna Convention on the Law of Treaties38 emphasise the primary importance of the ordinary meaning of the terms.39 As the terms in question, such as ‘fairness’ and ‘equity’, appear to be too vague in order to determine a content by way of the classic textual interpretation, recourse needs to be taken to secondary means of interpretation: i.e. the treaty’s object and purpose, subsequent practice of the parties, and, alternatively, their intention (derived inter alia from the treaty’s preparatory work).40 The Treaty’s object is, amongst others, the “encouraging [of] mutually beneficial trade and investments and closer economic intercourse generally”,41 and arbitral awards relating to the same terminology provide guidance to the fulfilment of the Treaty’s main object. Moreover, the present Treaty runs in line with the terminology used in various FCN treaties the US has concluded since the early 1900s and in sub-

37 Whether one can rely on the practice of investment tribunals to interpret the terms of the 1955 Treaty of Amity has not been explicitly addressed by the ICJ, see however ICJ, Oil Platforms, Preliminary Objections (note 25), Separate Opinion of Judge Higgins, ICJ Reports 1996, 847, para. 39. 38 These rules are applicable to treaties concluded before the entry into force of the VCLT, see ICJ, Kasiliki Sedudu Island (Botswana v. Namibia), Merits, Judgment of 13 December 1999, ICJ Reports 1999, 1045, para. 18. 39 See Marc Jacob/Stephan Schill, Fair and Equitable Treatment: Content, Practice, Method, in: Marc Bungenberg et al. (eds.), International Investment Law (2015), 700, 714. 40

Art. 32 VCLT.

41

See ICJ, Oil Platforms, Preliminary Objections (note 25), para. 27 (emphasis added).

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sequent US Model Bilateral Investment Treaties (BITs).42 Additionally, comments by the States parties support the notion that their intention was to set protection standards equal to those stipulated in other FCN treaties or BITs,43 as well as by general customary international law.44 Consideration of all three factors hence leads to the conclusion that it is generally appropriate to use subsequent judicial decisions and interpretations of the broad concepts of FET, FPS, and MFN for determining the content of the Treaty of Amity’s provisions. This interpretation also finds support in an examination of the standards’ development over the years: It is safe to assume that – for instance – the FET standard of 1955 had not differed considerably from those used in subsequent BITs and applied in later arbitration cases,45 making a discussion on static or dynamic treaty interpretation rather unnecessary.46 This is partly owed to the fact that uniform definitions of these standards have neither existed in 1955 nor today as to them clearly excluding certain guarantees.47 Thus, the focus should lie on a case-by-case examination of the Kim Scott Gudgeon, United States Bilateral Investment Treaties: Comments on their Origin, Purposes, and General Treatment Standards, International Tax and Business Lawyer 4 (1986), 105, 110; John Coyle, The Treaty of Friendship, Commerce and Navigation in the Modem Era, Columbia Journal of Transnational Law 51 (2012–2013), 302, 311 (confirming that the Treaty of Amity is considered a FCN treaty). 42

E.g., the US confirmed that the Treaty’s terminology of “just compensation” in Art. IV (2) must be seen to reflect the generally used standard of “prompt, effective, and fair compensation” and refers to similar language in other FCN treaties as well as US courts, see United States (note 27), 1406, 1408, and 1410 footnote 43. 43

44 In several expropriation cases the IUSCT has found that the treaty and customary rules on compensation terms are the same, see IUSCT, Sola Tiles Inc. v. Iran, Award of 22 April 1987, 14 IUSCTR 223, 234 (“the same standard would be required in this case by customary law as by the direct application of the treaty itself”).

Saluka Investments (The Netherlands) v. Czech Republic, UNCITRAL, Partial Award of 17 March 2006, para. 291, available via: https://pca-cpa.org/es/cases/101/ (accessed on 1 May 2017) (difference between treaty standard and customary minimum when applied to specific facts of a case may well be more apparent than real); similarly in Azurix Corporation v. Argentina, ICSID Case No. ARB/01/12, Award of 14 July 2006, para. 361; Biwater Gauff v. Tanzania, ICSID Case No. ARB/05/22, Award of 24 July 2008, para. 592; Jacob/Schill (note 39), 708. 45

Dynamic methods of interpretation, such as evolutive or ‘effective’ interpretation would influence interpretation outcomes for terms that have significantly changed their meaning over time, see Sondre Torp Helmersen, Evolutive Treaty Interpretation: Legality, Semantics and Distinctions, European Journal of Legal Studies 6 (2013), 161, 167. 46

47

133.

Rudolf Dolzer/Christoph Schreuer, Principles of International Investment Law (2nd ed. 2012),

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pertinent facts and on whether there has been a considerable development of the understanding of the standard concerned.48 In this contribution, recourse will therefore be taken to definitions developed by arbitral decisions and to specific documentation on the interpretation of the Treaty of Amity whenever this is necessary and possible.

B. Terms of the Treaty of Amity: Interpreting ‘Companies’ and ‘Nationals’

The arguments advanced by Iran are largely based on the underlying presumption that its State-owned corporations are to be considered ‘nationals’49 and ‘companies’ within the meaning of the Treaty of Amity and therefore enjoy investment protection under its provisions.50 The Treaty itself defines ‘companies’ as “corporations, partnerships, companies and other associations, […] whether or not for pecuniary profit”.51 The central question is whether the treaty term includes governmentowned entities as well, a contention the US Department of Justice challenged in its amicus curiae brief to Bank Markazi v. Peterson before the US Supreme Court.52 It argued that the Treaty’s definition of ‘companies’ does not make reference to “government agencies or instrumentalities” and “is not naturally read to include” an

48 In the ELSI Case, ICJ, Elettronica Sicula SpA (ELSI) (United States v. Italy), Merits, Judgment of 20 July 1989, ICJ Reports 1989, 15, paras. 113–114, the United States alleged that Italy violated the FPS and protection of expropriation standards under the 1948 FCN Treaty. The ICJ did not resort to the investment law framework for support of its interpretation, and only mentioned the existence of investment treaties once (para. 113). However, considering the enormous increase in arbitration awards over the past decades, this might be different today.

The US Department of Justice argued that, based on a contextual interpretation of the Treaty, ‘nationals’ only covers natural persons, as certain rights granted in the Treaty necessarily can only be enjoyed by natural persons, such as the right to travel and to ‘human treatment’ in custody, see Bank Markazi (note 14), Brief for the United States as Amicus Curiae, 21. 49

50 These are: Art. II (1) (“companies […] shall have their juridical status recognized”); Art. III (2) (“companies […] shall have freedom of access to the courts”); Art. IV (1) (“accord fair and equitable treatment to nationals and companies”); Art. VI (2) (“property of nationals and companies […] shall receive the most constant protection and security”). 51

Art. III (1) Treaty of Amity.

52

Bank Markazi, US Amicus Curiae Brief (note 49), 21–23.

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agency of the State carrying out sovereign functions.53 At the same time, elsewhere in the Treaty, “government agencies and instrumentalities” are included into the term ‘enterprises’, often considered a synonym to the term ‘companies’.54 The Treaty is therefore not entirely clear on whether a central bank might qualify as a ‘company’. A different, yet very similar question was addressed by the tribunal in CSOB v. Slovakia, where Slovakia argued that a State-owned bank is not a “juridical person” pursuant to Article 25 (2) (b) Convention on the Settlement of Investment Disputes between States and Nations of Other States (ICSID Convention)55 and rather a State agency of the Czech Republic. The tribunal was not convinced that the term “juridical person” was intended to exclude wholly or partially government-owned companies.56 Government-owned companies may fall under “juridical persons” as well, unless they are “acting as an agent for the government or […] discharging an essentially governmental function.”57 The tribunal adopted a rather permissive interpretation holding that even if the bank was promoting governmental policies or purposes of the State, “the activities themselves were essentially commercial rather than governmental in nature.”58 It will therefore be imperative to examine Bank Markazi’s legal status, functions, and activities. The bank’s responsibility clearly entails sovereign tasks, such as the “formulation and implementation of the monetary and credit policies” of the country.59 Therefore it is not only wholly owned by Iran’s government but also exercises sovereign tasks, excluding it from qualifying as a fully commercial company. At the same time, it is established as a legal entity subject to the laws pertaining to “joint53 The judgment, however, did not discuss this matter and rather revolved around constitutional issues of separation of powers, see Bank Markazi (note 14).

Bryan Garner (ed.), Black’s Law Dictionary (10th ed. 2014), 648 (defining enterprise i.a. as “[a]n organization or venture, especially for business purposes”). 54

Convention on the Settlement of Investment Disputes between States and Nations of Other States, 18 March 1965, UNTS 575, 160. 55

Ceskoslovenska obchodní banka, a.s. (CSOB) v. Slovakia, ICSID Case No. ARB/97/4, Decision of the Tribunal on Objections to Jurisdiction of 24 May 1999, para. 16. 56

57

Ibid., para. 17.

The activities concerned the assignment of certain non-performing loan portfolio receivables to two ‘Collection Companies’ established by the Czech Republic in an effort to facilitate privatisation of the bank; ibid., para 20. 58

Art. 10 (a) Monetary and Banking Act of Iran, 9 July 1972, available at: http://www.cbi.ir/simple list/1457.aspx (accessed on 30 November 2016). 59

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stock companies” and “shall not be subject to the general laws […] applying to ministries, government corporations and agencies”.60 This would in fact make it a “company constituted under the applicable laws and regulations” of Iran under Article III Treaty of Amity. In light of the unclear treaty terminology as to whether governmental entities may be considered ‘companies’, and Bank Markazi’s exercise of State authority while being established as a company under its national laws, both the US and Iran could bring convincing arguments to the table. The discussion will however alter when it comes to other financial institutions that are owned by the government but do not act in governmental capacity (e.g. Bank Melli). While the ICJ’s interpretation of the term “companies” could render a major part of Iran’s arguments redundant, Article X (1) and Article VII (1) (“neither contracting party shall apply restrictions on the making of payments”) would stand independently from this interpretation. However, it is doubtful whether these provisions provide substantial remedy for Iran’s position.

IV. State Immunity of Iranian State-Owned Corporations A. Subsuming State Immunity Under the Treaty of Amity

While the Treaty of Amity itself does not provide for State immunity, Iran advances two arguments to nevertheless rely on it: firstly, the freedom of access to courts for Iranian companies61 and, secondly, the guarantee of FPS of their property.62 Already at this point, one can see the jurisdictional limits posed to Iran’s arguments. In absence of similar rights enshrined in the Treaty of Amity granted to the State itself – preventing Iran from claiming immunities for the State proper – it has to rely on the separate legal status of its companies63 in order to establish the ICJ’s jurisdiction over the question of State immunity. 60

Art. 10 (c)–(d) Monetary and Banking Act.

61

Art. III (2) Treaty of Amity.

Art. IV (2) Treaty of Amity; while the Treaty speaks of the “most constant protection and security”, the terms are in practice seen as interchangeable, see Christoph Schreuer, Full Protection and Security, Journal of International Dispute Settlement 1 (2010), 353, 353. 62

63

ICJ, Certain Iranian Assets (note 1), para. 32 (b); Art. III (1) Treaty of Amity.

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With regard to Iran’s first argument, Article III (2) Treaty of Amity provides that Iranian companies shall enjoy “freedom of access to the courts […] in defense and pursuit of their rights, to the end that prompt and impartial justice be done.” In particular, access should be granted under “terms no less favorable than those applicable to nationals and companies […] of any third country”.64 Generally, such provisions are concerned with ensuring individuals the possibility to pursue their substantive rights through the exercise of procedural rights, on an equal footing with nationals of the respective State. Thus, they are concerned with the judicial process itself, rather than the respective outcome.65 That being said, as Article III (2) Treaty of Amity entails a MFN clause, Iran might seek to argue that the US treatment of its State-owned corporations is discriminatory, as they are granted a different level of legal protection than companies of other States. Such different treatment must be objectively justified.66 It might be particularly problematic that the different treatment is contingent on a political determination, namely the designation as a ‘State sponsor of terrorism’ by the US State Department,67 or that it explicitly applies solely to Iranian assets.68 Concerning FPS, the Treaty of Amity provides that the property of Iranian companies shall “receive the most constant protection and security […] in no case less than that required by international law” in the US.69 Iran claims that such a minimal standard entails the protection of State immunity as prescribed by customary law.70 However, it is unclear why a referral to an international standard regarding the treatment of individuals should be interpreted as to encompass immunity rights of the State. Within investment law, FPS has primarily been understood as to oblige a State to ensure the physical protection of an investment from the government and non-

64

ICJ, Certain Iranian Assets (note 1), para. 32 (d); Art. III (2) Treaty of Amity.

Francesco Francioni, Access to Justice, Denial of Justice and International Investment Law, European Journal of International Law (EJIL) 20 (2009), 729. 65

Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award of 11 September 2007, paras. 366–371. 66

67 Claims against Saudi Arabia following 9/11, similar to those against Iran, have been dismissed due to State immunity, as no such designation has been made, see United States District Court (Southern District of New York), In Re Terrorist Attacks on September 11, 2001 (note 17). 68

See the ITRSHRA (note 15).

69

Art. IV (2) Treaty of Amity.

70

ICJ, Certain Iranian Assets (note 1), para. 32 (d).

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State actors alike.71 In contrast to other treatment standards – such as FET – it “is typically not concerned with the process of decision-making by the organs of the host state”.72 However, judicial practice has at least partly recognised that FPS also guarantees legal security, i.e. “protection against infringement of the investor’s rights”.73 Thus, States have to provide a stable legal framework.74 Problematic in this context is in particular the ITRSHRA, which arguably amended the domestic legal framework with regard to the ongoing proceedings of Peterson v. Iran (see also infra, V. B.). Overall, Iran’s line of argumentation appears somewhat oxymoronic, as it seeks to incorporate a right exclusively enjoyed by States – i.e. State immunity75 – into provisions intended to protect individuals’ rights.76 For obvious reasons, such issues do not arise in investment disputes.77 Should Iran be able to convince the ICJ that the conduct of the US is in contravention of those treatment standards, this might allow the Court to find a violation of the pertinent treaty provisions. However, looking at the arguments outlined above, this would in effect only enable Iran to secure for its Stateowned corporations a certain standard of State immunity as enshrined in US domestic legislation, and not in customary international law.

Giuditta Cordero Moss, Full Protection and Security, in: August Reinisch (ed.), Standards of Investment Protection (2008), 131, 131–132; cf. ICJ, Tehran Hostages (note 2), para. 67. 71

72 Lone Wandahl Mouyal, International Investment Law and the Right to Regulate: A Human Rights Perspective (2016), 40–41. 73

Dolzer/Schreuer (note 47), 163 et seq.; cf. ICJ, ELSI (note 48), paras. 109–112.

74

See, e.g., Azurix v. Argentina (note 45), para. 408; Biwater Gauff v. Tanzania (note 45), para. 729.

Which roots in the sovereign equality of States as enshrined in Art. 2 (1) Charter of the United Nations, 26 June 1945, UNCIO 15, 335, see ICJ, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Merits, Judgment of 3 February 2012, ICJ Reports 2012, 99, para. 57; while that right may also protect the property of private legal entities, namely State-owned corporations, it nevertheless remains a right of the State itself. 75

76 Under somewhat similar circumstances, in Tehran Hostages, the ICJ acknowledged that such rights might overlap. It found that – for jurisdictional purposes – the dispute regarding a violation of FPS under the 1955 Treaty of Amity is “at the same time a dispute arising out of the interpretation or application of the Vienna Conventions” on diplomatic and consular rights. However, it had a jurisdictional basis for both treaty violations, see ICJ, Tehran Hostages (note 2), para. 50. 77 If anything, State immunity has been considered as a nuisance for investors, see AIG Capital Partners, Inc v. Kazakhstan [2005] EWHC 2239 (Comm), para. 80 (holding that State immunity as enshrined in the Jurisdictional Immunities Convention is “a legitimate restriction on the right of parties to enforce against State property”).

370 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 B. Immunity from Adjudication

Assessing the merits of Iran’s State immunity argument, a distinction has to be drawn between immunity from adjudication and immunity from enforcement (measures of constraint).78 With regard to the first, the domestic US court proceedings were taken against varying defendants, which were mostly part of the government. In addition to Iran itself,79 these include Iranian ministries or ministers,80 other senior officials of Iran, members of the Iranian government (including the Supreme Leader),81 the Revolutionary Guards (a branch of Iran’s Armed Forces)82 as well as ‘John Does’.83 As discussed above, the ICJ will lack jurisdiction to find violations of State immunity with regard to domestic cases directed at the State proper. Only cases based on the terrorist attacks on 11 September 2001 included separate legal entities such as the Iranian central bank and various State-owned corporations as defendants.84 In this context, two exceptions appear pertinent: the commercial exception and the territorial tort exception. Under the 2004 UN Convention on Jurisdictional Immunities of States and Their Property (Jurisdictional Immunities Convention), State-owned corporations that are entitled to perform acts in the exercise of sovereign authority enjoy immunity from adjudication,85 except, i.a., from proceedings “arising out of” commercial transactions.86 However, the domestic proceedings in the US do not “arise out of” the 78

ICJ, Jurisdictional Immunities (note 75), para. 113.

79

United States District Court (District of Columbia), Cicippio v. Iran, 18 F.Supp.2d 62 (1998).

Mostly the Ministry of Information and Security and the respective minister, see id., Anderson v. Iran, 90 F.Supp.2d 107 (2000); id., Peterson v. Iran, 515 F.Supp.2d 25 (2007); id., Estate of Brown v. Iran, 872 F.Supp.2d 37 (2012). 80

Id., Flatow v. Iran, 999 F.Supp. 1 (1998); id., Levin v. Iran, 529 F.Supp.2d 1 (2007); id., Stern v. Iran, 271 F. Supp.2d 286 (2003). 81

82 See, e.g., id., Owens v. Republic of Sudan, 826 F. Supp.2d 128 (2011); id., Flanagan v. Iran, 87 F. Supp.3d 93 (2015).

See, e.g., id., Eisenfeld v. Iran, 172 F. Supp.2d 1 (2000); id., Estate of Heiser v. Iran, 466 F. Supp.2d 229 (2006). 83

Such as the national tanker, oil, and gas corporations as well as Iran Airlines, see United States District Court (Southern District of New York), In Re Terrorist Attacks on September 11, 2001 (note 17). 84

85 Art. 2 (1)(b)(iii), United Nations Convention on Jurisdictional Immunities of States and Their Property, UN Doc. A/RES/59/38 (2004) (Jurisdictional Immunities Convention). 86

Art. 10 Jurisdictional Immunities Convention.

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activities of Iranian State-owned corporations per se – which have allegedly provided material or financial support for terrorists, or facilitated the transfer of cash or the travel of terrorists.87 Most importantly, there are no contractual relationships between Iran’s State-owned corporations and the claimants. Somewhat differently, courts and tribunals generally refer to the dichotomy of acta iure imperii and acta iure gestionis and employ a nature test for their determination – namely whether the relevant acts might be performed by private individuals. However, domestic courts are not consistent in applying that approach, the limits of which may be seen with regard to activities such as (supporting) terrorism which arguably fit in neither category. For instance, Jin v. Ministry of State Security concerned the (alleged) hiring of thugs by the Chinese Ministry of State Security in the US in order to suppress practitioners of Falun Gong. A US district court concluded that that was not a commercial activity due to the “broader political context”. In the court’s view, the “ministries’ mandate to implement China’s policy and its authority to hire ‘thugs’” is an “exercise of the quintessential police power” of the State and thus is protected by sovereign immunity.88 Thus, domestic courts in part rely on the purpose of the activity (a certain policy goal) in order to determine that an activity is not commercial.89 Additionally, with regard to the legal proceedings following the 9/11 attacks, the US might seek to rely on the territorial tort exception, as enshrined in Article 12 Jurisdictional Immunities Convention. This exception would allow the forum State to exercise jurisdiction with regard to tort claims resulting from death or personal injury.90 While the acts must be “alleged to be attributable to the State”, this refers to a domestic and not the international91 standard of attribution.92 However, as the United States District Court (Southern District of New York), In Re Terrorist Attacks on September 11, 2001 (note 17), paras. 48–56. 87

88 United States District Court (District of Columbia), Jin v. Ministry of State Security, 557 F. Supp. 2d 131 (2008), 141–142; Xiaodong Yang, State Immunity in International Law (2012), 81–82. 89

Cf. Art. 2 (2) Jurisdictional Immunities Convention.

90

Art. 12 Jurisdictional Immunities Convention.

Arts. 4–11 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq.; (ILC Articles on State Responsibility) for a short discussion on that issue see infra the text accompanying notes 133–136. 91

92 Joanne Foakes/Roger O’Keefe, Article 12, in: Roger O’Keefe/Christian J. Tams (eds.), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (2013), 209, 220–221.

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Jurisdictional Immunities Convention is not yet in force,93 its provisions are only insofar relevant as they reflect customary international law, and the precise extent of the territorial tort exception is not entirely certain. In Jurisdictional Immunities, the ICJ refused to make general statements on its customary nature94 and rather held that the exception would not extend to acts committed by armed forces or during armed conflict.95 Nevertheless, the exception was affirmed in domestic case law usually in the context of more “quotidian accidents and incidents”96 than the acts relevant to Certain Iranian Assets, although US courts have also allowed claims following assassinations conducted by State agents.97

C. Immunity from Enforcement

With regard to such terrorism tort cases US law allows execution measures to be taken against all “blocked assets” of a “terrorist party”.98 This includes assets of ‘State sponsors of terrorism’,99 irrespective of whether they would otherwise enjoy immunity.100 The blocked assets include “all property and interests in property” of Iran, its central bank, or of any Iranian financial institution which is located in the US or held by a US person.101 In 2015, this included close to USD 2 billion in assets as well as twelve real properties of unknown value in various larger US cities.102 While one might doubt that blocking of assets already amounts to a measure of constraint engaging State immunity, allowing execution unquestioningly does. While the Convention was ratified by Iran, it was not signed by the US and lacks the 30 ratifications overall required to come into force, see the current status of the Convention, available at: https:// treaties.un.org/Pages/showDetails.aspx?objid=0800000280057946 (accessed on 16 August 2016). 93

94

ICJ, Jurisdictional Immunities (note 75), para. 65.

95

Ibid., para. 78.

96

Foakes/O’Keefe (note 92), 224.

See United States Court of Appeals (9th Circuit), Liu v. Republic of China, 892 F.2d 1419 (1989); United States District Court (District of Columbia), Letelier v. Republic of Chile, 488 F.Supp. 665 (1980). 97

98

TRIA (note 9).

99

Ibid.; the designation as a State sponsor of terrorism is made by the US Department of State.

100

28 U.S.C. § 1610 (b) (3), in conjunction with § 1605A.

101

Executive Order 13599 (note 10).

102

See supra, note 12.

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Article 19 Jurisdictional Immunities Convention provides for a general rule of immunity from post-judgment measures of constraint and foresees a list of exceptions. Most pertinently, under Article 19 (c), property that is used for “other than government non-commercial purposes” should not enjoy immunity from enforcement, as long as measures are “taken against property that has a connection with the entity against which the proceeding was directed”.103 However, in Jurisdictional Immunities, when the ICJ was concerned with the status of Article 19, it limited itself to confirming that the condition that the property has to be “in use for an activity not pursuing government non-commercial purposes” was of customary nature.104 In particular with regard to bank accounts of central banks, “sovereign purposes” has been understood broadly. In AIG Capital Partners, Inc v. Kazakhstan, the England and Wales High Court held that the Kazakh central bank, when making investments in financial assets to secure “high profitability levels”, undertook it as “part of the overall exercise of sovereign authority” as the “aim […] was and is to enhance the national fund”.105 A further issue arising with regard to bank accounts is their treatment in case they are used for both commercial and sovereign purposes. In practice this issue arose with regard to embassy accounts. Courts and tribunals often granted such accounts a presumption of sovereign purposes usage, putting the burden of proof on the claimant to show that the account is (almost) solely used for commercial purposes.106 While earlier decisions partly allowed for attachment of mixed accounts,107 current practice overwhelmingly considers such accounts to be immune unless the use for sovereign purposes is negligible.108 103

Art. 19 (c) Jurisdictional Immunities Convention.

104

ICJ, Jurisdictional Immunities (note 75), para. 118 (citing domestic judicial decisions as support).

AIG Capital Partners, Inc v. Kazakhstan (note 77), para. 92; Dmitri Zdobnõh/René Värk, State Immunity from Execution: In Search of a Remedy, Acta Societatis Martensis 4 (2009–2010), 161, 165. 105

106 August Reinisch, European Court Practice Concerning State Immunity from Enforcement Measures, EJIL 17 (2006), 803, 831–833; Zdobnõh/Värk (note 105), 174–175; Federal Constitutional Court of Germany (Bundesverfassunsgericht), Philippine Embassy Bank Account Case, BVerfGE 46, 342, 65 ILR 146, 148, 188. 107 United States District Court (District of Columbia), Birch Shipping Corporation v. Embassy of The United Republic of Tanzania, 507 F.Supp. 311 (1980), 63 ILR 524.

Federal Constitutional Court of Germany (note 106); District Court of Rotterdam, The Netherlands v. Azeta BV, 14 May 1998, 128 ILR 688, 688–689; Alcom v. Republic of Columbia, 1 AC (1984) 580, 604; Court of Appeal of Brussels, Iraq v. Vinci Constructions, 4 October 2002, 127 ILR 101, 105–106. 108

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That being said, with regard to publicly owned enterprises engaging in business activities and their property, Article XI (4) Treaty of Amity stipulates that they may not claim immunity from “execution of judgment or other liability to which privately owned and controlled enterprises are subject”.109 It is safe to assume that private entities are also liable for the support of terrorist activities. However, one might argue that Iranian State-owned corporations are subject to a further-reaching regime, as the US allows execution of all judgments in terrorism cases against their assets.110 In this context, Iran apparently also seeks to rely on the requirement of a nexus enshrined in Article 19 (c) Jurisdictional Immunities Convention, namely that enforcement measures may only be taken against entities that have been part of the original proceedings on the merits.111 This becomes apparent in Iran’s claim that the US fails to recognise the ‘separate juridical status’ of Iranian State-owned corporations.112 Indeed, should all domestic US judgments be enforced, measures will necessarily be taken against property of entities that were not part of the proceedings on the merits in the majority of cases,113 such as Bank Markazi or other State-owned corporations, to which most blocked assets belong. With regard to ICSID awards, domestic jurisprudence has been rather reluctant to allow execution against assets of entities related to but not identical with the State.114 However, while the US Supreme Court established a presumption of separate juridical status of a State’s ‘instrumentalities’ for the purposes of the FSIA in Bancec,115 the Ninth Circuit Court of Appeals Quite interestingly, Iran uses that provision for an e contrario argument that its companies should be entitled to immunity for acta iure imperii, see ICJ, Certain Iranian Assets (note 1), para. 32 (b). 109

110

For the definition of terrorist acts see supra, note 7.

Art. 19 (c) Jurisdictional Immunities Convention; Chester Brown/Roger O’Keefe, Article 19, in: O’Keefe/Tams (eds.) (note 92), 293, 321. 111

112

ICJ, Certain Iranian Assets (note 1), para. 32 (a).

The outstanding damages awarded as of now are USD 53 billion, while the blocked assets amount to close to USD 2 billion as well as twelve real properties of unknown value, see supra, notes 12–13. 113

114 Court of Cassation of France, Benvenuti & Bonfant Srl v. Banque Commercial Congolaise, 21 July 1987, 1 ICSID Rep. 373, 374; AIG Capital Partners, Inc v. Kazakhstan (note 77); August Reinisch, Enforcement of Investment Awards, in: Katia Yannaca-Small (ed.), Arbitration Under International Investment Agreements: A Guide to the Key Issues (2010), 671, 695–696.

United States Supreme Court, First National City Bank v. Banco Para El Comercio, 462 U.S. 611 (1983); Jeremy Ostrander, The Last Bastion of Sovereign Immunity: A Comparative Look at Immunity from Execution of Judgments, Berkeley Journal of International Law 22 (2004), 541, 563–564. 115

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held that Congress “purposely overrode the Bancec presumption” in the present context.116 In any event, the plaintiff may evidence the circumstances that would justify piercing the corporate veil, such as extensive control of the ‘instrumentality’ by the owner.117 A US District Court suggested that with regard to Bank Markazi and other State-owned corporations.118 In any event, it is unclear whether this requirement of a nexus constitutes customary international law119 and the ICJ remained silent in Jurisdictional Immunities with regard to this part of the provision.120 An additional question arises with regard to property held by Bank Markazi, and whether it enjoys a higher degree of immunity, as foreseen by Article 21 (1)(c) Jurisdictional Immunities Convention. That provision expressly stipulates that property by the central bank is never considered used for “other than government non-commercial purposes” and therefore remains immune regardless of its actual usage.121 Yet, again, judicial as well as legislative State practice so far have been reluctant to award special protection to property of a central bank.122 Only a limited number of States

United States Court of Appeals (9th Circuit), Bennett v. Islamic Republic Iran, 817 F.3d 1131, 1140 (2016). 116

117

See supra, note 115.

See United States District Court (Southern District of New York), In Re Terrorist Attacks on September 11, 2001 (note 17), para. 44 (“Each of these corporate defendants is, however, tightly connected to the government of Iran, and each is an organ of the government and/or has been owned, directed, and controlled by the Iranian state.”), para. 55 (“In practice, the Iranian government exercises tight control over [Bank Markazi] and ignores the law by issuing direct orders to the [Bank Markazi]. […] From an economic perspective, ‘[Bank Markazi] has less independence from the Iranian government than do the central banks in most developed countries.’”). 118

119 Brown/O’Keefe (note 111), 327; Peter-Tobias Stoll, State Immunity, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (MPEPIL), Vol. IX (2012), 498, para. 76 (stating that “State practice has so far been inconclusive”). The US Foreign Sovereign Immunities Act (FSIA) requires a certain nexus between the property and the underlying claim, see 28 U.S.C. § 1610 (a) (2) (“the property is or was used for the commercial activity upon which the claim is based”). However, this only applies to property of the State proper, see Ostrander (note 115), 558–560. 120

ICJ, Jurisdictional Immunities (note 75), paras. 117–118.

Art. 21 (1)(c) Jurisdictional Immunities Convention; see Stoll (note 119), para. 67 (“a suggestion of the Special Rapporteur to add the words ‘and used for monetary purposes’ […] was not incorporated in the final text, due to a lack of consensus.”); cf. 28 U.S.C. § 1611. 121

For a review of the practice of European courts, see Reinisch (note 106), 826–827; Hazel Fox/ Philippa Webb, The Law of State Immunity (3rd ed. 2013), 523–525; cf. Chester Brown/Roger O’Keefe, Article 21, in: O’Keefe/Tams (eds.) (note 92), 334, 343. 122

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enacted legislation as to that effect.123 Thus, the customary nature of this provision is “contentious”,124 and courts usually apply the general rules to property of the central bank as well.

D. The ‘Terrorism Exception’ Under General International Law and Concluding Remarks on State Immunity

Alternatively, the US might seek to rely on a ‘terrorism exception’ as a purported new exception under customary international law, allowing for proceedings against States for acts of terrorism and execution of such judgments into State property otherwise immune. The burden of proof with regard to such a new exception would lie on the US,125 which would have to show “extensive and virtually uniform” State practice accompanied by opinio juris.126 This is rather unlikely.127 In 2012, the ICJ observed that the US was the only country having adopted pertinent legislation128 and since then apparently only Canada has followed that approach.129 The US might rely on an exception for jus cogens violations, which finds somewhat broader acceptance in State practice.130 Nevertheless, such an argument will arguably be shaky both on a legal131 and on a factual level. As supporting terrorism by itself is unlikely to amount to a jus cogens violation,132 the US would have to show that Iran is internationally responsible for the specific acts of terrorism constituting, e.g., crimes 123

416. 124

That being the US, the UK, and China, see Fox/Webb (note 122), 523; Xiaodong (note 88), 410– Brown/O’Keefe (note 122), 346.

ICJ, Asylum Case (Colombia v. Peru), Merits, Judgment of 20 November 1950, ICJ Reports 1950, 266. 125

126 Id., North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands), Merits, Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 74. 127

Grandaubert (note 6).

128

ICJ, Jurisdictional Immunities (note 75), para. 88.

Justice for Victims of Terrorism Act, 13 March 2012, S.C. 2012, c. 1, s. 2; Sec. 6.1 State Immunity Act, R.S.C., 1985, c. S-18, as amended on 13 March 2012. 129

130

Kazemi Estate v. Iran [2014] 3 S.C.R. 176, para. 44.

131

ICJ, Jurisdictional Immunities (note 75), para. 96.

Depending on the circumstances it might violate the principle of non-intervention or UN Security Council resolutions, see also infra, note 194. 132

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against humanity.133 This would require that the acting persons’ conduct is attributable to Iran, i.e. that they have acted “under the direction or control of” it.134 Given the high threshold the ICJ established for this test in Nicaragua,135 this will prove difficult for the US.136 In conclusion, should the ICJ follow Iran’s arguments and incorporate the customary protection of State immunity into the Treaty of Amity, the US will have great difficulties to show the lawfulness of its conduct. While the exact conclusions will in large parts depend on the factual assessments made by the Court, in particular the broad understanding of ‘sovereign purposes’ will prove difficult for the US, making it doubtful that it will be able to demonstrate that all assets were used entirely for commercial purposes.

V. Expropriation and Standards of Treatment Under the Treaty of Amity The Treaty of Amity guarantees quite comprehensive protection of privately owned property which Iran seeks to claim for the Iranian assets subject to the dispute. The most promising appear to be the allegations of breaches of Article IV (2) (providing for most constant protection and security as well as conditions for lawful expropriations) and Article IV (1) (stipulating the obligation of FET). In particular, Iran argues that the treatment accorded to Bank Markazi and other entities as well as their assets is “unfair, inequitable, discriminatory and unreasonable” and therefore in breach of Article IV (1) Treaty of Amity.137 Iran specifically refers to the enactment of Section 502 ITRSHRA in this regard and its explicit mentioning of Sofie G. Syed, Sovereign Immunity and Jus Cogens: Is There A Terrorism Exception for ConductBased Immunity?, Columbia Journal of Law and Social Problems 49 (2016), 251, 285; cf. United States Court of Appeal (District of Columbia), Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (1984). 133

134

Art. 8 ILC Articles on State Responsibility.

135

ICJ, Military and Paramilitary Activities In and Against Nicaragua (note 24), paras. 109, 115.

See, however, the findings in United States District Court (Southern District of New York), In Re Terrorist Attacks on September 11, 2001 (note 17), para. 61 (“At all relevant times, defendant Hizballah […] was directed and controlled by the Iranian state”), para. 86 (“Iran […] entered into an alliance with al Qaeda […] to work together to conduct terrorist operations against the United States”). 136

137

ICJ, Certain Iranian Assets (note 1), 14.

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the financial assets subject to the Peterson et al. v. Iran proceedings (see infra, V. B.).138 Iran furthermore claims that Article IV (2) Treaty of Amity has been breached by way of expropriating property of Iranian companies, including State-owned corporations such as Bank Markazi (see infra, V. A.).139

A. Article IV (2) – Most Constant Protection and Security and Expropriation

1. General Issues of Expropriation As part of the guarantee of the most constant protection and security for foreign property, the Treaty of Amity provides that property shall not be taken except for public purposes and upon prompt payment of just compensation.140 The terminology can be considered to address both direct and indirect expropriation equally, without their explicit mention in treaty provisions.141 With the Treaty of Amity therefore imposing a prohibition of expropriation unless certain conditions are met, the question to examine is whether the acts of the US amounted to an expropriation and whether they qualify as unlawful. Direct expropriations are forcible deprivations of property by means of administrative or legal measures142 that share the transferring of title as a distinctive element.143 138 22 U.S.C. § 8772 (“The financial assets described in this section are the financial assets that are identified in and the subject of proceedings […] in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG)”); United States District Court (District of Southern New York), Peterson et al. v. Iran, Opinion and Order of 28 February 2013, 2013 U.S. Dist. LEXIS 40470, 16. 139

In relation to FPS Iran also refers to immunities, see supra, IV.

140

Art. IV (2) Treaty of Amity.

International courts and tribunals have treated both equally, although in recent investment treaty practice, it has become a standard to mention both expropriation as well as “measures having equal effect”, see Ursula Kriebaum, Expropriation, in: Bungenberg et al. (eds.) (note 39), 959, 973; cf. Permanent Court of International Justice, Certain German Interests in Polish Upper Silesia (Germany v. Poland), Judgment of 25 May 1926, Series A, No. 7, 44; IUSCT, Starrett Housing Corporation et al. v. Iran et al., Award of 19 December 1983, 4 IUSCTR 122, 154. 141

LG&E Energy Corp, LG&E Capital Corp. and LG&E International Inc. v. Argentina, ICSID Case No. ARB/02/1, Decision on Liability of 3 October 2006, para. 187. 142

143

Kriebaum (note 141), 971.

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Indirect expropriations do not affect legal title to the property but constitute an interference leading to the investor “losing the effective use of the property”, as confirmed by the IUSCT.144 While Iran’s application lacks details on the facts alleged to constitute expropriations, it emphasises the right to protection from “takings consequential upon judicial acts”.145 The acts likely to be challenged in that regard may be, on the one hand, the blocking of assets of Iran’s government and Iranian financial institutions, including Bank Markazi, pursuant to Executive Order 13599.146 On the other hand, there is the seizure and turnover of assets of Iranian entities due to court judgments and orders for execution,147 which Iran seems to address by “takings consequential upon judicial acts”. Although both appear to have similar effects on the usage of property, they still ought to be distinguished by their nature: The first type is ordered by administrative acts while the second arises out of findings of a court in compensatory proceedings. There is a certain reluctance of arbitration tribunals to find violations of treatment standards caused by the judiciary,148 let alone unlawful expropriations. Indeed this might be with good reason, as court rulings are generally elaborate findings, wellfounded on evidence and domestic law.149 Otherwise, every court decision awarding rights to one party (private or State) and depriving the other party (such as an inves144 IUSCT, Constantine Gianoplus v. Iran, Award of 20 June 1986, 11 IUSCTR 217, 221; id., Tippets, Abbett, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, Government of Iran et al., 6 IUSCTR, 225; Brower/Brueschke (note 21), 384. 145

ICJ, Certain Iranian Assets (note 1), 15.

146

Executive Order 13599 (note 10).

As of 12 June 2016, nearly all of the enforcement proceedings initiated so far resulted in an order for turnover of assets in execution of judgments against Iran. The entities against which execution has been sought and, partially, granted are Bank Markazi, Bank Melli Iran, the Iranian Ministry of Defense, the Iranian Cultural Heritage Organisation, and the Iranian Telecommunication Infrastructure Company, see ICJ, Certain Iranian Assets (note 1), Annex 2, Table 2. 147

148

346.

Muthucumaraswamy Sornarajah, The International Law on Foreign Investment (3rd ed. 2010),

Saipem v. Bangladesh, ICSID Case No. ARB/05/7, Award of 30 June 2009, para. 133 (“If this were true, any setting aside of an award could then found a claim for expropriation, even if the setting aside was ordered by the competent state court upon legitimate grounds”); another concern is that with such findings, one would also admit international review of domestic rulings under the pretence of seeking compliance with investment standards and hence “pu[t] the label of international wrong on what is a domestic error”, see Loewen Group, Inc. v. The United States, ICSID Case No. ARB(AF)/98/3, Award of 26 June 2003, para. 242; Robert Azinian, Kenneth Davitian & Ellen Baca v. Mexico, ICSID Case No. ARB(AF)/97/2, Award of 1 November 1999, para. 99. 149

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tor) of them would technically have the effect of ‘expropriating’ the judgment debtor. In this context, one might distinguish between the (emerging) ‘police powers’ doctrine150 and its counterpart, the ‘sole effects’ doctrine. These vary in their methods to determine whether a governmental measure constitutes an expropriation. While the latter solely focuses on the measure’s effect,151 the former does not find an expropriation at all if the measure was motivated by a valid public purpose. The application of the ‘police powers’ doctrine appears reasonable for cases in which courts award compensatory damages to victims.152 However, there is judicial practice confirming that also courts of a State may contribute to an unlawful expropriation, even if there was a public purpose.153 The conditions applied to determine their unlawfulness are far from uniform and rather still developing. These conditions and their application to the present case will be examined below (see infra, V. A. 3.).

2. Expropriation Through the Blocking of Assets The blocking of assets has in general been dealt with in only a limited number of arbitral decisions. While such measures generally appear to satisfy the test for an indirect expropriation mentioned above, as the owner lost effective use of their property, consideration must be given to the specific circumstances of the case and the duration of the asset freeze. In American Bell International Inc. v. Iran an indirect 150 Ben Mostafa, The Sole Effects Doctrine, Police Powers and Indirect Expropriation under International Law, Australian International Law Journal 15 (2008), 267.

IUSCT, Starrett Housing Corporation v. Iran (note 141), 154 (often cited as authority for the ‘sole effect doctrine’); see Dolzer/Schreuer (note 47), 114. 151

152 In Weinstein v. Iran a US Court of Appeals rejected that there was an expropriation, as the measures were based on Bank Melli’s “unlawful actions in support of terrorism” and the bank had “clear notice” from the law and its effect on its own assets, see United States Court of Appeals (2nd Circuit), Weinstein v. Iran (note 27), 54.

Rumeli v. Kazakhstan, ICSID Case No. ARB/05/16, Award of 29 July 2008, para. 702 (“Whereas most cases of expropriation result from action by the executive or legislative arm of a State, a taking by the judicial arm of the State may also amount to an expropriation”), similarly in IUSCT, Oil Field of Texas Inc v. Iran, Award of 8 October 1986, 12 IUSCTR 308, para. 42; on the general responsibility of a State for judicial wrongs see Eduardo Jiménez de Aréchaga, International Law in the Past Third of a Century, Recueil des Cours 159 (1978), 1. 153

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expropriation was found in the taking of a bank account.154 The Chamber found that when “the purpose and effect of the acts are totally to deprive one of the funds without […] consent, the finding of a compensable taking […] is inevitable, unless there is clear justification for the seizure.”155 In Tza Yap Shum v. Peru the claimant’s bank account had been seized due to tax debt by Peruvian tax authorities. Although the measure was lifted after six months, it did not only freeze the accounts but more seriously affected the making of payments and contracts with suppliers. The committee in the Decision on Annulment made clear that the measures, as a whole, deprived the claimant of his investment.156 Other decisions, however, stress the fact that such asset freezes are temporary and do not constitute permanent takings.157 Thus, factors considered by tribunals included a consideration of the factual access of the owner to the funds in the bank account, the duration of the denial of access, and the effects the unavailability of the account and transactions had on the entire investment, as well as the justification given for the seizure. In relation to Executive Order 13599, the denial of access to the funds seems quite unproblematic. The measures have continued for about four years to date and the funds do not appear to be made available again, especially considering the attachment to execution of the funds in several proceedings.158 The effect of the freeze is likely to have been crucial in light of Iran’s shortage of foreign currency and the entities’ inability to make payments using the funds. However, the justification given for the seizure seems rather weighty: The order is given acting on the national emergency declared in 1995159 and is based, amongst other things, on “the deceptive practices of The account was jointly owned by the claimant and an Iranian State company, from which funds could not be retrieved by claimant, and ultimately had to be transferred to the Iranian State company upon order by an Iranian ministry. 154

IUSCT, American Bell International Inc v Iran, Award of 19 September 1986, 12 IUSCTR 170, 214, para. 150 (“The only conceivable justification for the taking of the funds would have been the settlement of outstanding accounts with landlords and creditors of American Bell Industries Inc.”). 155

156 Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, Decision on Annulment of 12 February 2015, paras. 191–192.

Continental Casualty Co. v. Argentina, ICSID Case No. ARB/03/9, Award of 5 September 2008, para. 202 (“The Tribunal notes that the imposition of the bank freeze is a typical short-term measure used by monetary authorities in order to block withdrawals from banks and block capital flight”). 157

158

ICJ, Certain Iranian Assets (note 1), Annex 2, Table 3.

Executive Order 12957 of 15 March 1995, Prohibiting Certain Transactions With Respect to the Development of Iranian Petroleum Resources, available at: https://www.treasury.gov/resource-center/ sanctions/Documents/12957.pdf (accessed on 1 September 2016). 159

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the Central Bank of Iran and other Iranian banks to conceal transactions of sanctioned parties.”160 If arriving at this stage of the proceedings, the ICJ will probably look into whether this justification is legitimate in light of its duration of almost four years. If expropriation was not caused by the freeze in 2012, it might however still be argued to have occurred through the subsequent court orders.

3. Expropriation Through Court-Ordered Execution The few arbitral decisions dealing with court-ordered expropriations looked at different conditions to establish judicial expropriations and their unlawfulness. In Saipem v. Bangladesh the tribunal on the one hand held that the nullification of an award by the International Chamber of Commerce through the Supreme Court “substantially depriv[ed] Saipem of the benefit” of contractual rights and therefore constituted a measure tantamount to expropriation.161 On the other hand, it did not find that a factual and substantial deprivation would be sufficient to give rise to a claim of expropriation; the actions must also have been “illegal”.162 The illegality of the taking was derived from an abuse of rights by the domestic court which handed a “grossly unfair ruling” resulting from an inappropriate application of legal standards to the facts.163 In another instance, Azinian v. Mexico, the tribunal held that a court’s decision declaring a concession contract invalid could not be regarded an (unlawful) expropriation per se, unless it involved, for example, a denial of justice.164 This would require that procedural errors occurred or that the result reached by the court was “arbitrary or unsustainable in light of the evidentiary record.”165 Similarly, in Paushok v. Mongolia

160

Executive Order 13599 (note 10), Preamble.

161

Saipem v. Bangladesh (note 149), para. 129.

162

Ibid., para. 133.

Besides a violation of Article II New York Convention, ibid., para. 155; Andrew Stephenson/Lee Carroll/Jonathon Deboos, Interference by a local court and a failure to enforce: Actionable under a bilateral investment treaty? in: Chester Brown/Kate Miles (eds.), Evolution in Investment Treaty Law and Arbitration (2012), 429, 435. 163

164

Robert Azinian et al. v. Mexico (note 149), para. 99.

165

Ibid., para. 120; Francioni (note 65), 731.

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an asset freeze imposed by Mongolian courts was found lawful as they did not “act in bad faith or without respect for due process.”166 Hence, the test for judicial expropriations apparently focuses on flaws within the procedure or the ruling contravening the requirement of due process (violated by way of e.g. denial of justice or abuse of rights).167 However, it is not entirely clear in all cases whether it is regarded a requirement for finding an expropriation as such, or for establishing its unlawfulness. Furthermore, the – usually strictly applied – condition to pay compensation is weighted differently in assessing the unlawfulness of courtordered takings. This may derive from a rejection of the idea that States should compensate for an expropriation following a judgment that was compensatory in its own right, for instance, when an investor did not comply with a contract. There is, therefore, a considerable uncertainty as for how to determine an (unlawful) expropriation by courts. When it comes to the court-ordered seizures and transfers of Iranian assets to US judgment debtors, proving that there was a substantial deprivation of its property rights would not be problematic. Iran may bring forward two issues with regard to a possible denial of justice and the due process requirement, which enjoy – as demonstrated – a stronger focus when applied to courts. The ‘expropriated’ entities were almost never party to the proceedings that resulted in an order for execution against their property.168 Moreover, its involvement and connection to the terrorist attack at stake is mostly not proven directly but rather by evidencing Iran’s involvement and assuming the central bank’s cooperation in that plot. The latter argument may also affect the US’s argument on acting upon a public purpose, since the measure taken has to have a “reasonable nexus” with the declared public interest in the sense of being

166 Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. Mongolia, UNCITRAL, Award on Jurisdiction and Liability of 28 April 2011 paras. 661–663. 167 Some authors however argue that judicial expropriations do not necessarily have to involve a denial of justice and should be treated as a concept different from the latter. Sebastian Mantilla Blanco, Justizielles Unrecht im internationalen Investitionsschutzrecht (2016), 151. 168 A different opinion was expressed in United States Court of Appeals (9th Circuit), Bennett v. Iran (note 116): “Nor does Bank Melli have an independent interest to assert: Because its attachment immunity with respect to the funds held by Visa and Franklin is abrogated by the TRIA and section 1610(g), Bank Melli is Iran for the limited purposes of this interpleader action. This is solely a collection proceeding, and a judgment debtor isn’t generally considered an indispensable party to an action to enforce its debts”.

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at least capable to further that purpose.169 While the public purpose of the presidential order is to counter activities violating sanctions, the seizures of assets by courts pursue the aim of satisfying claims by private parties for damages arising from terrorist acts. Both can be argued to constitute legitimate interests of the public, and while the connection of the purpose with the measure seems to be given factually (the funds allow for satisfaction of claims), the used measure might be argued to prove somewhat legally unrelated (seizing assets of an entity not party to proceedings) and excessive. It is important to emphasise, however, that such a strict application of the public purpose doctrine is not necessarily to be expected and the US might have solid grounds to argue to this effect. The determination of an expropriation in this case will hence pose legal questions of high complexity. It will ultimately depend on whether the ICJ chooses to follow the ‘sole effects’ or ‘police powers’ doctrine and its considerations with regard to the requirement of lawfulness for judicial expropriations.

B. Article IV (1) – Fair and Equitable Treatment

Amongst the treaty provisions Iran claims to have been breached, is Article IV (1), essentially stipulating that FET shall be accorded to nationals and companies and that no unreasonable or discriminatory measures shall be applied. In scholarly work, the requirement of FET has been accurately summarised as a “guarantee of the rule of law” for the treatment of foreign investments.170 As such, certain principles such as due process, access to justice, protection of legitimate interests, stability of the legal framework, non-discrimination, and proportionality171 are seen to be enshrined in it.172 In relation to the FET standard, Iran mentions “the treatment currently […] accorded to Bank Markazi and other Iranian companies, […] and their respective assets” generally, and brings the ITRSHRA as a specific example.173 Indeed, some of Vestey Group Ltd v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/06/4, Award of 15 April 2016, para. 296. 169

170 Stephan Schill, Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law, in: id. (ed.), International Investment Law and Comparative Public Law (2010), 151.

El Paso Energy International Company v. Argentina, ICSID Case No. ARB/03/15, Award of 31 October 2011, para. 373; Jacob/Schill (note 39), 735. 171

172

Jacob/Schill (note 39), 719; see also Dolzer/Schreuer (note 47), 145.

173

ICJ, Certain Iranian Assets (note 1), 14.

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the administrative or judicial acts of the United States could possibly touch upon some of these principles, in particular non-discrimination, due process, and stability of the legal framework. As for discrimination, the ITRSHRA has to be analysed again. After a long process of court rulings and changes in the domestic law of the US, President Obama signed into law this legislative act that allows accessing Bank Markazi’s assets.174 This act explicitly referred to Peterson v. Iran. It is this explicit referral and the ongoing law changes seemingly directed at ensuring access to assets of Bank Markazi that are particularly relevant in light of the principle of non-discrimination. In treaties, both FET and the prohibition of discriminatory measures are often used in the same sentence, emphasising that they are closely intertwined, as is the case with Article IV (1) Treaty of Amity.175 Acts are considered discriminatory measures if the investor was “specifically targeted”.176 Therefore, discriminatory intent of the government is a required criterion.177 As a result, Iran has to prove that the US had the intention to discriminate against Iranian entities and that – which will pose the more difficult task – there is no justification for the difference in treatment.178 Not only could the enactment of the ITRSHRA prove problematic due to the specific targeting of Bank Markazi’s assets, as Iran contends, it also stipulates a retroactive change of the law.179 US Supreme Court Justices Roberts and Sotomayor highlighted in their joint dissenting opinion to the proceedings in which the 2012 Act was challenged, that “Section 8772 seems to change the law in order to ensure in this specific proceeding that respondents, namely the US, win”.180 Two arguments Iran 174

See 22 U.S.C. § 8772 (note 138).

Kenneth Vandevelde, A Unified Theory of Fair and Equitable Treatment, NYU Journal of International Law & Politics 43 (2010–2011), 43, 63. 175

Alex Genin, Eastern Credit Limited Inc. v. Estonia, ICSID Case No. ARB/99/2, Award of 25 June 2001, paras. 369 and 371; the court in Peterson v. Iran, however, focuses on the provision not containing a “country-based discrimination”. 176

Ian Brownlie, Principles of Public International Law (5th ed. 1998), 541, footnote 96 (“[t]he test of discrimination is the intention of the government”). This was applied in Alex Genin, Eastern Credit Limited Inc, v. Estonia (note 176), para. 369. 177

178 Ursula Kriebaum, Arbitrary/Unreasonable or Discriminatory Treatment, in: Bungenberg et al. (eds.) (note 39), 790, 802. 179

ICJ, Certain Iranian Assets (note 1), 14.

180

Bank Markazi (note 14), Joint Dissenting Opinion of Roberts CJ and Sotomayor J, 7–8.

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may bring forward in this regard are that the US failed to accord FET since it enacted changes of law to a certain end and even provided for a retroactive effect of the law resulting in a deterioration of the legal position of Iran’s State-owned corporations. In investment arbitration, a State’s regulatory power is undisputed and there is no duty of sovereign States to “freeze their legal system”. Nevertheless, this power must be exercised in a reasonable way.181 Retroactive legislation has in some instances been found to violate the FET standard.182 The US courts that dealt with these retroactivity claims denied them based on the fact that even if there were retroactive law changes, they did not affect liability but rather only pertained to matters of execution.183 The ICJ will therefore have to deal with the question whether the latter equally presents a substantial impairment of the entities’ rights. With the FET standard being a ‘fall-back’ clause that is regularly used whenever other treaty violations were not found (such as expropriation), arguments discussed above might probably arise in the context of FET again. As to the fact that not all entities upon which the compensatory judgments are executed have initially been party to the proceedings, Iran might also argue a lack of due process amounting to unfair and inequitable treatment. Furthermore, some tribunals have required a genuine relationship of end and means184 which might not be given in the case of enforcement of compensation payments upon distinct entities for terrorist acts that have – not in all cases very precisely – been linked to the State.185 181 I.e. within the boundaries of international law (Suez v. Argentina, ICSID Case No. ARB/03/19, Decision on Liability of 30 July 2010, paras. 148–150); however, see also Yuri Bogdanov and Yulia Bogdanov v. Republic of Moldova, SCC Case No. V091/2012, Final Award of 16 April 2013, para. 193 (“protecting the environment is a legitimate aim and legislation to that effect has an objective and reasonable justification. This also means that the imposition of charges of this kind in itself can in no way violate the fair and equitable standard”). 182 Petrobart Limited v. Kyrgyz Republic, ARB No. 126/2003, Arbitral Award of 29 March 2005, para. VIII.8.17 (“the adoption of a new law which establishes that a previous law shall be interpreted in a restrictive way is retroactive legislation […] it is highly doubtful whether the adoption […] was compatible with […] duty under the Treaty to protect foreign investments.”); Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Concurring Opinion of Luis Herrera Marcano of 27 December 2010, para. 10. 183 United States Court of Appeal (9th Circuit), Bennett v. Iran, 799 F.3d 1281, 1288 (2016) (“But the TRIA and section 1610(g) do not impose retroactive liability on Iran—they merely provide a means of collection for judgments where liability has already been established. Iran was liable for its terrorismrelated conduct long before [they] were enacted”). 184

Continental Casualty Co. v. Argentina (note 157), paras. 196–197.

185

See supra, note 17.

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VI. ‘Essential Security Interests’ and Countermeasures The US argument that its measures are warranted in their ‘war on terror’ may be subsumed under Article XX (1)(d) Treaty of Amity, which provides that the “Treaty shall not preclude the application of measures: […] necessary to protect essential security interests” of a party.186 The ICJ considered that ‘essential security interests’ do not have to reach the level of severity of an armed attack187 or amount to a situation constituting a state of necessity under customary international law.188 Most importantly, however, such provisions are not self-judging and measures taken remain subject to judicial review.189 To that effect, the ICJ employed a two-tier test, first assessing whether the risk to essential security interests is “reasonable” and then whether the “measures presented […] are not merely useful but ‘necessary’” for their protection.190 Thus, it is not enough that the measures “tend to protect the essential security interests […] but must be ‘necessary’ for that purpose”.191 Considering the frequency and scale of terrorist attacks against the US, their prevention will most likely be an essential security interest192 and blocking pertinent assets might arguably be necessary to counter that threat. US courts have moreover argued that punitive damages awards are important “as a means to deter states from supporting terrorist organizations”.193 However, it is unclear how enabling the execution of awards against assets that are already blocked – and thus out of reach of any terrorist organisation – is ‘necessary’ for purposes of 186

Art. XX (1)(d) Treaty of Amity.

ICJ, Nicaragua (note 24), para. 224; cf. William J. Moon, Essential Security Interests in International Investment Agreements, Journal of International Economic Law 15 (2012), 481, 486. 187

William W. Burke-White/Andreas von Staden, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties, Virginia Journal of International Law 48 (2008), 307, 396. 188

ICJ, Nicaragua (note 24), para. 282; id., Oil Platforms, Merits (note 2), para. 43; cf. Moon (note 187), 485–487. 189

190

ICJ, Nicaragua (note 24), para. 224.

191

Ibid., para. 282; id., Oil Platforms, Merits (note 2), para. 43.

The US already invoked that preventing that the lives of its nationals are put at risk constitutes an ‘essential security interest’, which has been in principle recognised by Iran, see id., Oil Platforms, Merits (note 2), paras. 49, 73. 192

193 United States District Court (District of Columbia), In Re Islamic Republic of Iran Terrorism Litigation, 659 F.Supp.2d 31, 44 (2009).

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national security, in particular as it negates an important incentive to cease such activities by definitely dissolving those assets. Alternatively, the US might argue that its measures were justified as a countermeasure, taken in response to internationally wrongful acts of Iran. Even if terrorist groups’ actions are not attributable to Iran, financial and material support to them probably amounts to a prohibited intervention in the internal affairs of other States.194 However, apart from procedural rules, that defence might prove problematic on the requirement that the effects of countermeasures should be, as far as possible, reversible.195 Again, the issue lies with allowing execution into the assets of Iranian entities. While financial damages are generally considered to be reversible,196 this might be doubtful with regard to execution against blocked real property.197

VII. Conclusion Over the last fifteen years, the ‘war on terror’ has posed numerous challenges to public international law. Provided that Certain Iranian Assets goes beyond the jurisdictional phase, Iran’s application might allow the ICJ to address some of those important issues. Unlike other cases, Certain Iranian Assets is shaped by the somewhat narrow jurisdictional basis of the Court. In absence of those hurdles, Iran might be able to advance much more robust arguments in various fields. An underlying issue of the entire case is the treatment of State-owned corporations. Apart from matters of interpretation – whether a wholly State-owned corporation may be considered a ‘company’ by virtue of the Treaty of Amity – the issue arises whether States are generally required to recognise the separate judicial status of such entities. In this context, the Court might clarify under which circumstances a State may ‘pierce the corporate veil’, an issue that was rather unsatisfactorily addressed in Barcelona Traction.198 194

Which include the “formulation of foreign policy”, cf. ICJ, Nicaragua (note 24), paras. 205, 242.

195

Art. 49 (3) ILC Articles on State Responsibility.

196

James Crawford, Counter-Measures as Interim Measures, EJIL 5 (1994), 65, 68.

Cf. Alice Ollino, Iran E Stati Uniti Di Nuovo Davanti Alla Corte, SIDIBlog, 29 June 2016, available at: http://www.sidiblog.org/2016/06/29/iran-e-stati-uniti-di-nuovo-davanti-alla-corte/ (accessed on 1 September 2016). 197

ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970, 3, paras. 56–58. 198

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With regard to State immunity, the biggest challenge posed to Iran concerns, once again, the jurisdictional limits of the ICJ, as the issues have to be subsumed under standards contained in the Treaty of Amity. Nevertheless, a range of questions might arise that the 2012 Jurisdictional Immunities Case has left unanswered. In its judgment, the Court might be able to shed light on matters such as the exact regime relating to the property of central banks (and thus address the gap between the stricter provisions of the Jurisdictional Immunities Convention and more ‘liberal’ State practice) or might more closely address the extent of the territorial tort exception. As for standards of treatment in general, the Court is called upon to deal with terms mostly found in international investment law – such as FET or FPS. Therefore, it will be asked to offer guidance in a field that has evolved significantly since ELSI and gained considerable importance in the contemporary practice of public international law. In this context, controversial questions raised include the application of treatment standards – normally designed to protect private investors – to Stateowned corporations, the conditions under which domestic court judgments or orders might constitute unlawful expropriations, or the legal relevance of the ‘war on terror’ in investment law. Also, on a broader note, the Court might have to deal with the impact of terrorism on the field of State responsibility. Issues of attribution, while apparently not falling within the ambit of the jurisdictional or the merits phase, might be of importance in discussions of anti-terrorism measures in general. However, looking at Iran’s argument as presented at the current stage, it wants to have the best of both worlds, as it claims both State rights as well as rights of individuals for its State-owned corporations. Thus, before reaching the merits stage, Iran might be forced to bet on the right horse and choose a more specific litigation strategy. Nevertheless, apart from the legal issues in Certain Iranian Assets, if the US approach finds greater application, it might turn out to be a double-edged sword. It is conceivable that similar domestic cases might be brought against the US itself. Given its support of anti-government factions in various (non-international) conflicts – one only has to look at Nicaragua or the present-day conflict in Syria – the US may be open to great liability as well.

Clearing Up? Transparency in the Dispute Settlement of International Trade Agreements CHRISTOPH SCHEWE

ABSTRACT: The article explores the purpose and development of transparency in international trade dispute settlement. Focusing on the WTO and CETA, it displays recent tendencies and furthermore highlights developments in other FTAs. The initial analysis is dedicated to exploring the interest in global trade disputes and in a transparent dispute settlement procedure. For that purpose, the article analyses the general significance and value of transparency before turning to WTO and CETA dispute settlement. Accordingly, this article presents the debate on this matter and the respective developments in WTO dispute settlement, and in recent FTAs concluded by the EU. Given that the latter mostly foresee open hearings in dispute settlement proceedings they seem to provide more transparency. Simultaneously however, the research observes that, parallel to an increasing number of FTAs, the number of WTO disputes between the FTA partners tended to drop to zero i.e. that there are almost no trade disputes between FTA parties. The article discusses these findings, questioning to what extent this may be seen as a tendency towards a higher degree of dispute settlement. Finally, the article links the topic of transparency in trade disputes with transparency in ISDS, which are so far mostly analysed in isolation from each other. Identifying parallels and differences, it discusses, to what extent considerations regarding transparency in trade dispute settlement may be transposed on ISDS. KEYWORDS: International Law, International Trade, Dispute Settlement, Transparency, WTO, Free Trade Agreements, FTAs, Investment Protection, Investor-State-DisputeSettlement, ISDS

I. Introduction Today, the ‘Megaregionals’ such as the Transatlantic Trade and Investment Partnership (TTIP), the Transpacific Partnership (TPP) and the Comprehensive Economic and Trade Agreement (CETA) are controversially discussed globally, given Dr. Christoph J. Schewe M.E.S. (Salamanca), DAAD-Associate Professor at the University of Latvia, Faculty of Law, Department of International and European Law; [email protected].

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their potential impact on States and their citizens. One of the most heavily criticised aspects besides this effect is the secrecy not only surrounding the negotiations of Free Trade Agreements (FTAs) such as the TTIP1 but also within dispute settlement, particularly in Investor-State-Dispute-Settlement (ISDS).2 At the same time, the general interest in the World Trade Organization (WTO) seems to have faded. This is surprising, firstly, given that it still remains the principal agreement for global trade and secondly, given that some of the most debated issues for the Megaregionals bear a strong similarity to matters that have already been the subject of WTO related debates. One of these controversial topics, related to the fact that decisions of international adjudicators lack democratic legitimacy, is transparency in dispute settlement, where today’s debate on these recent Free Trade Agreements (FTAs) focuses on ISDS. Possibly less intense than today’s controversy, a decade ago, the WTO dispute settlement system was nevertheless heavily criticised for lack of transparency.3 Furthermore, it is astonishing4 that reports on trade and investment agreements neglect informing about these aspects, given that the first and

1 Waldemar Hummer, Was haben TTIP, CETA und TISA gemeinsam? Investor-To-State Dispute Settlement (ISDS) als umstrittenes Element der Freihandelsabkommen, integration 18 (1) (2015), 3–25; Gertrude Lübbe-Wolff, Rechtskolumne. Geheimniskrämerei bei TTIP, Merkur, 2 August 2016, available at: https://www.merkur-zeitschrift.de/2016/08/02/rechtskolumne-geheimniskraemerei-beittip/ (accessed on 27 April 2017). 2 See for instance the initiative to stop TTIP that succeeded to mobilising 350.000 demonstrators in Berlin in October 2015: Stop TTIP, Europäische Initiative gegen TTIP und CETA, available via: https://stop-ttip.org (accessed on 27 April 2017). 3 Steve Charnovitz, The WTO and Cosmopolitics, in: Ernst-Ulrich Petersmann (ed.), Reforming the World Trading System (2005), 437, 440; Peter Sutherland (et al.), The Future of the WTO – Adressing Institutional Changes in the New Millenium, Geneva: WTO (2004), 58; generally, Robert Howse, How to Begin to Think About the “Democratic Deficit”, in: Stefan Griller (ed.), International Economic Governance and Non-Economic Concerns: New challenges for the International Legal Order (2003), 79–101; Evangelischer Entwicklungsdienst (EED)/Forum Umwelt & Entwicklung/Greenpeace, Schieflage mit System: Das Streitschlichtungsverfahren der Welthandelsorganisation (WTO) (2005), 21, available at: http://forumue.de/wp-content/uploads/2015/05/AG_Handel_Schieflage_ mit_System.pdf (accessed on 27 April 2017).

Interestingly, some World Trade Organization (WTO) law text books dedicate some pages on transparency in WTO dispute settlement (see for instance: Peter Van den Bossche/Werner Zdouc, The Law and Policy of the World Trade Organization (3rd ed. 2013), 251 et seq., or Simon Lester/Bryan Mercurio/Arwel Davies, World Trade Law Text, Materials and Commentary (2nd ed. 2012), 190–193), whereas only few articles provide a deeper analysis of transparency in international trade dispute settlement. 4

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major issue criticised during the TTIP negotiations – the ‘chlorinated chicken’5 – was a trade issue. Remarkably, today, most critics of the Megaregionals do not even mention the rules governing trade dispute settlement but concentrate on ISDS. This raises a range of questions: Firstly, whether the respective rules in the WTO – and also in CETA/TTIP trade rules – have been adjusted to the wishes of critics. Or is it rather, that the former criticism has turned out to be unfounded or disproportionate for trade matters? If this should be the case, one may question, why – around the same time the debate on the chlorinated chicken emerged – transparency became one of the most controversial aspects in ISDS but not in trade matters. In other words, the substantial parallels to be drawn between both debates, and the observation, that today investment disputes seem to be seen almost exclusively as critical, raise the question whether investment disputes are considered to be more problematic than trade disputes and, if so, for what reasons. However, the awareness of these problems led to a number of studies on transparency in ISDS,6 and to new rules which aim at bringing more open and transparent investor-State arbitration7 and even triggered

5 The critique of the Transatlantic Trade and Investment Partnership (TTIP) initially concentrated on the different standards in the United States (US) and the European Union (EU) regarding the processing of chicken meat, see for instance: Friends of the Earth Europe, A Rotten Deal: Why TTIP threatens EU food safety standards for poultry, 11 March 2015, available via: http://www.foe europe.org/rotten-deal-110315 (accessed on 4 May 2017).

See for instance: Dimitrij Euler/Markus Gehring/Maxi Scherer, Transparency in International Investment Arbitration, A Guide to the UNCITRAL Rules on Transparency in Treaty-Based InvestorState Arbitration (2015) and, Marc Bungenberg/August Reinisch (eds.), Special Issue: The Anatomy of the (Invisible) EU Model BIT, The Journal of World Investment & Trade, Five Times Transparency in International Investment Law 15 (3–4) (2014), and, United Nations Conference on Trade and Development (UNCTAD), Transparency – A Sequel, UNCTAD Series on Issues in International Investment Agreements II, 31 December 2012, available at: http://dx.doi.org/10.18356/694e6c15-en (accessed on 4 May 2017); David Gaukrodger/Kathryn Gordon, Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community, OECD Working Papers on International Investment 2012/03, available at: http://www.oecd.org/investment/investment-policy/WP-2012_3.pdf (accessed on 31 March 2016). 6

7 United Nations Commission on International Trade Law (UNCITRAL), UNCITRAL Arbitration Rules (with new article 1, paragraph 4, as adopted in 2013), 2014, available at: http://www.uncitral. org/pdf/english/texts/arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf (accessed on 7 May 2017). See the amendments of Rule 32 ICSID Arbitration rules in 2006, for background information and further references see: Confidentiality and Transparency – ICSID Convention Arbitration, available at: https://icsid.worldbank.org/en/Pages/process/Confidentiality-and-Transparency.aspx (accessed on 13 June 2017) and UNCTAD (note 6). Furthermore, see the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, GA Res. 69/116 of 10 December 2014 (the Mauritius Convention on Transparency).

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public hearings broadcast on the internet.8 The number of corresponding publications on transparency in international trade disputes however, is comparatively low and does not explore the tendencies in FTAs.9 One reason, why transparency has become an important issue is the fact that it is seen as one of the most efficient instruments to mitigate the shortcomings of democratic legitimacy of international adjudication.10 While even free trade sceptics may admit that rules and dispute settlement are necessary for regulating economic globalisation, coherent and viable mechanisms ensuring legitimacy and accountability are yet to be developed. Transparency however, seems to eliminate some deficiencies and thus promises an improvement within the existing systems. Accordingly, this article aims at presenting the question of transparency in international trade disputes in a thorough manner, commenting not only on the WTO but also parallel developments, particularly in CETA and in other recent trade and investment agreements. Firstly, the article will elaborate on transparency, defining the term and explore its objectives in trade dispute settlement (II.). Hereafter, it proceeds with the analysis of transparency in WTO and CETA dispute settlement, and of relevant developments in the last decades (III.). Subsequently, the essay provides an insight into corresponding tendencies in the recent FTAs concluded by the EU, questioning whether FTAs go beyond the transparency level of WTO dispute settlement. Furthermore, it discusses to what extent trade dispute settlement differs to investment disputes and if experiences with trade dispute settlement could contribute to the current discussions regarding transparency in ISDS (IV.), before summing up the findings in the conclusion (V.). See Dispute Resolution in Germany, Peter Bert’s Blog about Litigation, Arbitration and Mediation in Germany – Art Law, Case Law, News etc., Transparency in Investment Arbitration: Video Stream of Hearing in Vattenfall v. Germany, available at: http://www.disputeresolutiongermany.com/2016/10/ transparency-in-investment-arbitration-video-stream-of-hearing-in-vattenfall-vs-germany/?sthash. oBxmWWnm.mjjo (accessed on 4 May 2017). 8

Gonzalo Villalta Puig/Bader Al-Haddab, The Transparency Deficit of Dispute Settlement in the World Trade Organization, Manchester Journal of International Economic Law 8 (1) (2011), 2, 3, provide an overview of the existing studies until 2011; the most recent study: Panagiotis Delimatis, Institutional Transparency in the WTO in: Andrea Bianchi/Anne Peters (ed.), Transparency in International Law (2013), 125–126 is dedicated to transparency in the WTO. None of the studies though comment on parallel developments in FTAs. 9

Armin von Bogdandy/Ingo Venzke, In wessen Namen? (2014), 203 et seq., 232; English language, version also available In whose name? (2014). 10

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II. Transparency and International Trade Dispute Settlement The almost 70 year long history of increasingly rule based world trade is mostly regarded as a success story: After two world wars, for which the deficiencies of the global economy had been a contributing factor, the General Agreement on Tariffs and Trade (GATT) and later, the WTO helped to foster and stabilise international trade.11 Today, the WTO has 164 members, and thus covers almost all trade relations of the entire world.12 One important reason, why the WTO has become interesting for international law scholars is the success of its dispute settlement system which is illustrated by the fact, that 500 disputes have reached the organisation in the twenty years of its existence.13 Besides this impressive number being one reason for the WTO Dispute Settlement System’s reputation, it is also remarkable that members usually comply with the findings of the WTO Panels or the Appellate Body. Compliance with the reports may to some extent also be seen as a consequence of a system, which makes it possible to enforce the findings by using the retaliation mechanism. Despite this positive assessment both success stories are nevertheless criticised for several shortcomings.14 As international trade regulation was initially conceived as a rather technical matter, specifically addressing the interests of those engaging in trade, it only attracted minor interest from the wider public. With the growing success of the GATT, technical developments and the global trading system expanding in quantity and quality, trade issues have ceased to be exclusively trade related (if they ever were).15 Since the 1990s, problematic aspects have been commonly addressed under the term globalisation, for which the WTO had become a symbol. In 1999, the 11 Craig VanGrasstek, The History and the Future of the WTO (2013), 8–14, available at https:// www.wto.org/english/res_e/publications_e/historyandfuturewto_e.htm (accessed on 10 September 2016). 12 WTO, Members and Observers, available at: https://www.wto.org/english/thewto_e/whatis_e/ tif_e/org6_e.htm (accessed on 5 May 2017). 13 WTO, WTO disputes reach 500 mark, dispute settlement, 10 November 2015, available at: https://www.wto.org/english/news_e/news15_e/ds500rfc_10nov15_e.htm (accessed on 5 May 2017); to date, 513 disputes have been brought to the WTO, see WTO, Current status of disputes, available at: https://www.wto.org/english/tratop_e/dispu_e/dispu_current_status_e.htm (accessed on 5 May 2017). 14

See supra, note 3.

15

For instance Griller (ed.) (note 3).

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‘Battle of Seattle’, a demonstration against the creation of the WTO which escalated, illustrated that in fact the public had strong reservations.16 Since then, this criticism has become more nuanced and is addressed not only by demonstrators but also by States and WTO members, companies, associations and Non-Governmental Organisations (NGOs). Most recently, similar aspects have been articulated in the media in the context of TTIP negotiations, in which the chlorinated chicken has become the most prominent example of the fear of free trade implications on the public and which generated great public interest.17 Accordingly, trade disputes may imply situations, where free trade stands in conflict with opposing public interests. While purely technical disputes may remain rather unnoticed by the public, there is a major interest concerning this category of disputes, and critics have pointed out deficiencies in the WTO dispute settlement. One of these issues has been the lack of transparency in the proceedings as the hearings of the Panel or the Appellate Body used to be closed to the public. Critics commented on this aspect, noting that the Dispute Settlement Understanding (DSU) stood in contrast to one of the main principles of court proceedings of most WTO members.18 Frequently, the conclusions drawn from these observations indicate that important decisions of the WTO were taken without any democratic participation or control by impartial observers. This aspect thus seemed to support the thesis of globalisation critics: that the WTO was a biased instrument for secretly advancing the interests of industrialised countries or transnational corporations (TNCs). Today, this debate is echoed in the controversies on recent FTAs and thus raises the question whether the dispute settlement system of the WTO – but also of recent FTAs – lack transparency. Transparency is in fashion19 and expectations of its effects as an element of good governance are high. To explain this phenomenon and the implications for interna16

VanGrasstek (note 11), 387.

17

See supra, note 2.

Steve Charnovitz, The WTO and Cosmopolitic, in: Ernst-Ulrich Petersmann, Reforming the World Trading System (2005), 437, 440; Peter Sutherland et al., The Future of the WTO – Adressing Institutional Changes in the New Millenium (2004), 58; generally Howse (note 3); EED/Forum Umwelt & Entwicklung/Greenpeace (note 3). 18

19 See for instance: Stephan Schill, Editorial: Five Times Transparency in International Investment Law, The Journal of World Investment & Trade 15 (3–4) (2014), and the preface of Bianchi/Peters (ed.) (note 9), and also in 2015 with the “sunlight project” became the topic of the fiction bestseller by Jonathan Frantzen, Purity (2015).

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tional trade dispute settlement, one needs to address a range of questions, namely: What is transparency? What is the purpose of transparency? Why should one wish for more transparency in international trade dispute settlement? Regarding the frequent comparison with transparency in national court proceedings, do the critics consider that State-to-State disputes may imply important particularities, given that positions presented in disputes are the results of nuanced administrative governance, a process which is traditionally governed by a relatively high degree of secrecy? Given that the system of limited transparency has not only survived, but worked well for decades – what are the drawbacks of transparency, and if one should strive for more transparency, what precisely can and should be improved.

A. Transparency – Meaning, Objective and Historic Development in Context

The literal meaning of transparency is translucency, pellucidness and penetrability of processes but also, clarity, comprehensibility and the possibility of perception and identification.20 In the fields of politics and law the term is mainly used for making processes visible, clear and comprehensible, which is mainly achieved by opening them to the public, structuring procedures and providing the necessary background information.21 For these purposes, transparency is sometimes described as publicness, which is mostly used as a synonym. The relevance of transparency differs according to the level of its application, the addressee and the subject concerned. In legal proceedings, transparency serves different objectives but it might also affect parties’ interests in a negative way. In today’s political and constitutional legal context, transparency is increasingly seen as an instrument of good governance aiming at achieving a higher degree of 20 Concise information on the term, implying its’ etymology – though in German language – is provided by: Dudenverlag, Duden, Das große Fremdwörterbuch (3rd ed. 2003); in sum corresponding to the explanations in various dictionaries (online versions) such as: Angus Stevenson (ed.), Oxford Dictionary of English (3rd ed. 2010); Peter Hugoe Matthews (ed.), The Concise Oxford Dictionary of Linguistics (3rd ed. 2014); or Terry Hoad (ed.), The Concise Oxford Dictionary of English Etymology (2003).

Michael Johnston, “Transparency”, Encyclopaedia Britannica Academic, available at: http:// academic.eb.com/EBchecked/topic/2002443/transparency (accessed on 5 May 2017), defines transparency as “capacity of outsiders to obtain valid and timely information about the activities of government or private organizations”. 21

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democratic legitimacy in publicly relevant decision making processes.22 While this particular aspect will be explored in more detail below (II. C.), for the purpose of clarifying the essence of transparency including its potential shortcomings, it is helpful to take note of secrecy as its opposing principle, which was the governing principle which absolutist regimes and monarchies cultivated in governance matters during the era of the modern State. For them, secrecy served as a tool for governance and eventually became a necessary requirement for political prudence.23 During the era of liberalism, enlightenment led to a change of paradigms, for which knowledge, its use, continuous development and dissemination increasingly became an ideal. Subsequently, the claim for more transparency – or publicity – in public matters (today: governance) was raised, and concepts were further elaborated, as prominently by Immanuel Kant, or Jeremy Bentham.24 The subsequent period of restoration however, induced a step backwards, and led towards more secrecy in public administrative proceedings in a number of States.25 Until today, even in liberal democratic States, such as Germany26, this tradition of secrecy plays a role for governance and administration, making transparency a relatively new phenomenon in administrative governance.27

B. Transparency in Courts and Dispute Settlement

Frequently, critics claim that WTO dispute settlement and ISDS stood in contrast to most court proceedings. Similar to the above mentioned considerations on transparency, it is also not an end in itself in court proceedings but aims at safeguarding 22

von Bogdandy/Venzke (note 10), 232; particularly regarding international institutions and courts.

Extensively, see: Bernhard Wegener, Der geheime Staat, Arkantradition und Informationsfreiheitsrecht, 2006, 3–119, available at: https://www.oer2.rw.fau.de/files/2016/04/habil.pdf (accessed on 5 May 2017). 23

24

Ibid., 195–196.

25

Ibid., 295.

Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act) (Informationsfreiheitsgesetz), 1 January 2006, Bundesgesetzblatt (BGBl.) I, 2722, as amended on 15 August 2013, BGBl. I, 3154, 3160. So far twelve Bundesländer enacted corresponding laws. 26

27 Wegener (note 23), 3–30; regarding the historic development in Germany, ibid., 312–406; regarding most recent tendencies and theoretic foundations, ibid., 406–511.

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and fostering elementary principles of law. Accordingly, it does not follow a single aim but has different objectives which may be regrouped into different categories which also holds true for the field of dispute settlement, where transparency may serve several objectives.

1. Objectives and Legal Foundation Historically, publicness was brought into courts with the French revolution, after which the audience publique was introduced in criminal proceedings and was later integrated into the principle of open court hearings of Napoleons Code de procédure civile in 1806.28 It gradually spread geographically within the following decades, serving several purposes. Initially, transparency – which was mainly achieved by opening a trial or court proceedings to the public – was a way to ensure the independence of the judge as the public monitors the process and hence may ensure that decisions are taken without influence or manipulation from outside. Thus, transparency had two main objectives: firstly, to guarantee the independence of the judge and secondly, to control justice. Today, a third function has become more prominent – to inform the public of developments in dispute settlement and evolving case law.29 Interest groups and journalists observe decisions and analyse the reasoning of judges especially in cases attracting public interest – for instance those with a political background or which might have systemic relevance and importance for the interpretation of upcoming cases. Even though transparency is not counted among the principles of law – and the attitude towards transparency may differ considerably in different legal orders and traditions30 – the three objectives mentioned above indicate, that it finds its basis in 28

Ibid. 206.

The WTO does not have ‘caselaw’, in the common law sense of precedence. Notwithstanding, Panels and Appellate Body (AB) constantly refer to previous decisions to provide predictability and legal certainty for the interpretation of WTO law. The AB even stated that it expected Panels to follow the AB’s conclusion in earlier disputes. WTO, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, Report of the Appellate Body of 29 November 2004, WT/DS268/AB/R, para. 188; id., United States – Final Anti-dumping measures on Stainless Steel from Mexico, Report of the Appellate Body of 30 April 2008, WT/DS344/AB/R, para. 160. 29

30 Liljana Biukovic, Selective Adaptation of WTO Transparency Norms and local practices in China and Japan, Journal of International Economic Law (JIEL) 11 (4) (2008), 803, regarding Japan, 813, and China, 818.

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the principles of law. In particular, the traditional objective – to ensure independence of the judges and thus secure the separation of powers – illustrates the context of the governing principle of ‘the rule of law’. The same applies for the second objective (to control judicial powers), which is attributed to the same principle. Furthermore, transparency aims at ensuring that the judiciary exerts its powers in accordance with existing laws and the constitution, i.e. demonstrating legality of a legal system. By monitoring courts practice, transparency also helps to ensure that decisions conform to the mandate of voters and thus is considered to enhance legitimacy of decisions. Accordingly, in democratic systems, it also finds its foundation in the ‘principle of democracy’.

2. Negative Aspects of Transparency Regarding the foregoing explanations on the positive effects of transparency in courts and dispute settlement that support fundamental principles of democratic States, governed by the rule of law one is tempted to support this objective without reservation. However, there are good reasons that speak in favour of secrecy, confidentiality or limitation of transparency in certain issues, given that, in practice, transparency can also be problematic. Installing transparency procedures may be expensive and complex. Furthermore, it is prone to manipulation as those interested in hiding information may release wrong information or create or disseminate material in incomprehensive forms or in abundant volume.31 Moreover, institutions and procedures for implementing transparency and genuine commitment to the principle itself need constant attention. Apart from problems of a general nature, transparency may need to be limited in the light of important conflicting values and interests. This concerns for instance the obligation to reveal strategic decisions in military matters or confidential business information.32 However, determining these limits and their application is itself also complicated, given that decision-makers – including judges and arbitrators – need a sphere of autonomy within which they can freely debate options without the risk of 31

Andrea Bianchi, On Power and Illusion, in: Bianchi/Peters (ed.) (note 9),10.

32

With references to relevant cases, Van den Bossche/Zdouc (note 2), 251–253.

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intervention or pressure from opposing groups. This concerns particularly delicate deliberations, necessary for implementing decisions authoritatively. Specifically regarding the objective of the judiciary to peacefully settle disputes, increased transparency and involvement of other actors may render this objective complicated.

C. Who is Interested in International Trade Dispute Settlement, or: Why Enhance Transparency?

Above, the question as to why one should wish for more transparency in international trade dispute settlement was raised. With regard to the positive connotations explained, the question may appear redundant; however, it brings with it the need to clarify the implications of the effect of dispute settlement in international trade disputes, identifying the relevant interests and actors involved.

1. The Interest in Settling International Trade Disputes Particularly after World War II the international community recognised that it was of uttermost importance to prevent future wars. Accordingly, Article 2 Charter of the United Nations33 (UN Charter) established the principle that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Moreover, the six provisions of Chapter VI UN Charter are dedicated to this principle and recommend means for peacefully settling disputes (Article 33 (1) UN Charter). The 1947 GATT reflected34 this spirit in the provisions of Articles XXII and XXIII which, having been inspired by the experiences under the GATT, were elaborated upon further under the DSU. Besides the organisations’ aims laid down in the WTO preamble of “… expanding … trade in goods and services …” through the “substantial reduction of tariffs and other barriers to trade” and the “elimination of discriminatory treatment in international trade relations”, it is also driven by the 33

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

Given that the ITO was supposed to have an elaborated dispute settlement system, incorporating additional norms to these two provisions was not considered to be important, Robert Hudec, The GATT Legal System and World Trade Diplomacy (1975), 9. 34

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objective of adhering to its rules. This latter element is furthermore expressed in Article 3 DSU. In trade disputes, these two objectives – peacefully settling disputes and achieving compliance with rules – may however conflict with each other. Despite the stipulations in Article 3 (4, 5 and 7) DSU, the disputing members might be tempted to prefer mutually acceptable solutions which would formally be inconsistent with WTO law, a situation raising the question, which of the two objectives should have priority. With regard to DSU rules and decisions of the Panels/Appellate Body, it appears that there is a preference for the former, to peacefully settle disputes.35 While for example via the most favoured nation principle, in the WTO the aspect of rule conformity may have direct relevance for other WTO members, this differs somewhat in the bilateral FTAs where the aspect of peaceful dispute settlement thus may enjoy priority over rule conformity. The fact that international trade disputes are member driven, signifies that the parties are usually State representatives (respectively, the European Commission (EC)) i.e. the executive. Regarding transparency, this implies a particularity which differs to private commercial disputes, given that the WTO members’36 positions are the result of internal administrative processes. Traditionally however, administrative processes even in liberal democracies have been marked by a relatively high degree of secrecy37 which consequently – following this logic – translates into the subsequent procedures, i.e. claim for secrecy in State-to-State dispute settlement.

2. International Trade Dispute Settlement and Democratic Legitimacy While disputes are per se marked by opposing views, some arguments in trade disputes may be categorised as trade favouring and others as protecting public interests. Given that both positions may have valid grounds, it is a challenge for the WTO/FTAs, however, to reconcile these opposing interests in line with WTO law. 35 Andreas von Arnauld, Völkerrecht (2nd ed. 2014), 396, para. 934; similar considerations apply for CETA and other FTAs, Art. 29.19 CETA; see infra III. B. 3. also read Art. 3 (7)(3) DSU. 36

In principle, the structural considerations below for the WTO and its members apply to FTAs.

37

See supra, II. A.

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In principle, WTO law has a liberalising effect and aims at freer trade. Accordingly, some critics claim that this principle orientation neglects important societal values like the environment, health or consumer safety – which may exert a protectionist effect. Pro trade arguments, in contrast, emphasise that this focus on free trade is a necessary consequence of the organisations’ aim. As the World Trade Organization, the WTO would necessarily need to concentrate on trade and not on other interests which are the objectives of other international organisations. Factually however, if the WTO adjudicators solely followed this latter line of argumentation, disputes involving public interests would be dominated by pro trade considerations. If exclusively relying on the efficiency of other international organisations, the protection of societal interests would be highly problematic, as the WTO appears to be more efficient and rule based than international organisations aiming for instance at the protection of the environment or consumer interests. Different to most other organisations, the efficient organisation and commitment to its law is reflected in the dispute settlement mechanism of the WTO. Through the reversed consensus principle,38 the decisions of the Dispute Settlement Body (DSB) are de facto binding for the disputing parties. Depending on the subject matter of the dispute, members may be obliged to alter trade practice and change legislation. Accordingly, WTO law – through the decisions of the DSB – is capable of having an impact on national law or politics and thus on individuals, even if members have not been parties to the dispute.39 So far, a number of cases have drawn broad public attention because matters were conceived to have considerable relevance beyond trade matters. Particularly controversial were the debates regarding disputes which had implications for the environment, health or plant life, such as the cases EC Asbestos, EC Hormones, US Shrimps, EC Seal Products and most recently, Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging.40 38

Laid down in the footnote to Art. 2 (4) DSU.

39

WTO, A Handbook on the WTO dispute settlement system (2004), 41.

WTO, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Panel of 18 September 2000, WT/DS135/R and WT/DS135/AB/R; id., Canada – Continued suspension of obligations in the EC-Hormones dispute, Report of the Panel of 31 March 2008, WT/ DS320 and WT/DS321; id., United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, Report of the Appellate Body of 12 October 1998; id., European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Report of the Panel of 25 November 40

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Accordingly, international trade dispute settlement is criticised, given that adjudicators lack (at least direct) democratic legitimacy, are not accountable and national parliaments do not play any substantive role.41 As noted above, the importance of the cases generates a strong interest for the public to gain insight into what is being negotiated and thus possibly influence respective decisions. Transparency of the dispute settlement procedure is a prerequisite for these objectives.

3. Actors and Interests in International Trade Disputes Even though the WTO is a member-driven organisation42 and only WTO members can be parties to its dispute settlement, actors behind disputes are usually associations or international companies, frequently referred to as multinational or transnational corporations, (MNCs or TNCs). Trade disputes involve strong economic interests and hence, relevant stakeholders exercise political pressure on WTO members. In their own interest, actors in international trade monitor trade rules and exert pressure on the politics of WTO members43 – also when it comes to the point of initiating trade disputes. The influence of private interests in WTO disputes does not always become entirely clear to ‘outsiders’, given that they are usually hidden behind a member. Nevertheless, there are several examples such as the case of ‘Fuji-Kodak’ in which these two companies provided considerable factual input and argumentation for the dispute.44 The argument in this case was led by law firms and trade experts contracted 2013, WT/DS400; WT/DS401; id., Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO/DS434. 41

von Bogdandy/Venzke (note 10), 185.

42

This respectively applies to FTAs and their parties.

Simultaneously, there are companies that might have an interest in the same case but from the opposing perspective thus arguing in favour of protectionist interests in order to prevent competition, Christoph Schewe, Die Beteiligung nichtstaatlicher Akteure in Streitschlichtungssystemen (2008), 89–95. 43

WTO, Japan – Measures Affecting Consumer Photographic Film and Paper, Report of the Panel of 31 March 1998, WT/DS44. Similarly, the dispute WTO, Brazil – Exportfinancing Programme for Aircraft, Report of the Panel of 14 April 1999, WT/DS46, is said to have been financed by the European (Bombardier) and Brasilian (Embraer) aircraft industry whose interested were accordingly represented, EED/Forum Umwelt & Entwicklung/Greenpeace (note 3), 44, footnote 183. Other examples where the direct interest of companies is well-known are the cases Havana Club, involving the companies Ricard and Bacardi or Airbus vs. Boeing, see: Schewe (note 43), 118–122. 44

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by these MNCs. Furthermore, they engaged in political lobbying to get the support of US Congress deputies or other WTO members, in particular of the EC. Apart from this factual rather informal method to exert influence, there are also formalised instruments. Specific provisions in the US or the EC/EU45 take this particular interest of companies into account and provide them with the legal instruments to request the Commission or the governments to initiate an investigation of the trade practices of another country and defend their interests. Usually, these instruments follow the aim of identifying protectionist measures and open markets. Given that the WTO and its dispute settlement system aim at liberalising trade, disputes are only initiated towards this objective. However, also the opposing position finds support by other members or by private actors. As has been indicated above, some groups may specifically advocate for non-trade related public interests in trade disputes. Frequently, these are NGOs having as an objective defending these particular societal interests. However, also companies, associations, trade unions and others may have an interest in these matters, potentially motivated by genuine societal interests or for protecting their own position from competitors.

III. Transparency in International Trade Dispute Settlement: The WTO and CETA WTO dispute settlement preferably aims at achieving “A solution mutually acceptable to the parties of a dispute and consistent with the covered agreements …”.46 The provisions however reflect that trade disputes pass through different stages. Correspondingly, CETA provisions foresee consultations and (facultatively) mediation47 before entering the stage of the Arbitration Panel procedure. In line with the different techniques of dispute settlement listed in Article 33 UN Charter, they recommend their use to a varying extent, thus taking into account the relevant stage of a dispute. Dispute settlement techniques presuppose a varying degree of transparency ranging from rather confidential proceedings in the stages governed by diplomatic In the EU, Trade Barriers Regulation, Council Regulation No. 3286/94 and in the US, U.S. Trade Act of 1974, Section 301. 45

46

Art. 3 (7) DSU.

47

Art. 29 (5) CETA, see also Annex 29-C Rules of Procedure for Mediation CETA (Annex 29-C).

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methods to increasingly transparent proceedings in the more rule oriented stages of a dispute.

A. Transparency on the Different Procedural Levels of Trade Dispute Settlement

Apart from differing between the various stages of WTO disputes, one may also distinguish between internal and external transparency. Internal transparency concerns the relation among WTO members whereas external transparency describes the relation towards non-members. In a dispute one can furthermore distinguish between three levels of internal transparency, concerning the information available for the parties of a dispute, third parties and other WTO members. Evidently, the situation in bilateral FTAs differs, given that there are neither third parties nor other agreement parties that might enjoy respective rights.

1. Trade Dispute Settlement – An Overview of the Different Stages While the bilateral FTAs principally do not foresee any appeals for trade disputes, WTO dispute settlement differs. Accordingly for the WTO and CETA, which is based on the WTO dispute settlement mechanism48 following stages are commonly distinguished: Firstly, the WTO and CETA49 foresee a consultative phase, in which parties informally consult each other to resolve an issue before a Panel is established. If consultations fail, the Panel procedure begins and a Panel50 is established which examines “the matter referred to the DSB [Dispute Settlement Body] …” and assists the DSB “… in making the recommendations or in giving the rulings …” (Article 7 (1) DSU). Again, the CETA provisions resemble this concept, possibly leading to a Panel report, to which parties have to comply51 (see infra A. 2.). 48 European Commission, Dispute settlement, 11 April 2017, available at: http://ec.europa.eu/ trade/policy/accessing-markets/dispute-settlement/ (accessed on 6 May 2017). 49

Art. 29 (4)(6) CETA.

The documents initiating consultations are available on the WTO website, WTO, Current status of disputes, available at: https://www.wto.org/english/tratop_e/dispu_e/dispu_current_status_e.htm (accessed on 6 May 2017). 50

51

Articles 29 (10) and 20 (12) CETA.

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After the WTO Panel report has been adopted by the DSB, a party might appeal and the dispute enters the Appellate Body procedure. Similar to the composition of Panels, usually three members of the Appellate Body review the matter52 and draft reports which also have to be adopted by the DSB. In some cases, parties argue whether the losing party has adequately complied with the findings of a report and the initial Panel will deal once more with the case in the so called implementation phase. As has been pointed out before, the applied methods of dispute settlement within these stages have the objective of settling the dispute between the parties but also, the ensuring that the WTO rules are respected, however, to a differing degree. Similar to other dispute settlement systems, a preliminary rather informal procedure aims at obtaining a mutual agreement between the parties through negotiations and consultations. When entering the Panel procedure however, the dispute settlement techniques shift from rather informal diplomatic53 to more rule oriented methods.54 This sequence in fact corresponds to Article 33 UN Charter, which stipulates that “The parties to any dispute, …, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” Even though the order suggested under the UN Charter is not binding, it appears as logical and practical to start the settling of disputes with diplomatic means. For WTO members however, consultations are mandatory (Art. 4 (7) DSU).

52 WTO, Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2016, available at: https://www.wto.org/english/tratop_e/dispu_e/ab_e.htm (accessed on 1 May 2017) (Working Procedures) Rule 6 (1).

Diplomatic oriented means settling disputes with/by diplomatic means i.e. through negotiations between the parties, whereas rule oriented means that a decision is taken by an impartial judge or arbitrator on the basis of the applicable law. As diplomatic dispute settlement frequently implies a more influential negotiation position for a more powerful party, this technique is also considered to be a ‘power oriented’ method. More extensively: Ernst-Ulrich Petersmann, The GATT/WTO Dispute Settlement System (1997), 66; John G. Merrills, International Dispute Settlement (5th ed. 2011), 83. 53

Schewe (note 43), 61, 75–76 with further references. A number of studies analyse the evolution from the GATT to the WTO. Regarding the development of dispute settlement under the GATT see particularly: Hudec (note 34), 9. 54

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2. Transparency in the Different Stages of WTO and CETA Trade Dispute Settlement Diplomatic means of dispute settlement stand in opposition to rule oriented methods of dispute settlement. The former are generally characterised by a higher degree of flexibility in which the parties negotiate a dispute with the primary objective of settling it. Given that the priority is set on the settling of the dispute, negotiations may also entail a variety of solutions which may imply talks about confidential aspects. For that reason, negotiations and consultations are usually held confidentially. Given that parties are freer to discuss options in the absence of broader public attention, confidentiality is considered beneficial for the settling of a dispute in consultations. The more a dispute is settled on the basis of rules administered by a third party, the less flexibility may principally55 be granted to the disputing parties to deviate from the governing rules.

a) The Consultative Phase In accordance with the predominant objective of consultations to settle the dispute, the rules in the first stage of trade dispute settlement are more diplomatically oriented than the more rule oriented later stages. In line with the aforementioned, Article 4 (6) DSU reflects the confidential character of the consultations stating that “Consultations shall be confidential and without prejudice to the rights of any Member in any further proceedings.” Parties are supposed to come to a mutually acceptable solution without any external interference and in fact, have frequently been successful.56 Similar to the WTO rules, the CETA and other FTAs provides for confidentiality in consultations.57

In practice, the DSU provides for diplomatic settlement under all stages (Art. 3 DSU); also arbitration is seen rather as a rule-based, legal method of dispute settlement, Merrills (note 53), 83, 97; confidentiality is commonly seen as one of the principal features, see Rolf Schütze, Schiedsgericht und Schiedsverfahren (5th ed. 2012), 120–122, paras. 411–413. 55

56 110 cases were declared as resolved bilaterally or withdrawn whereas for the remaining 108 cases, no outcome has been notified to the WTO, see supra note 13, available at: https://www.wto.org/ english/news_e/news15_e/ds500rfc_10nov15_e.htm (accessed on 6 May 2017). 57

Art. 29 (4)(6) CETA.

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Confidentiality applies not only externally but also internally as not even the WTO secretariat58 is involved. Furthermore, the content of consultations remains undisclosed to any Panel subsequently assigned the matter. For other WTO members the only possibility to be present is by becoming a third party, which they may become by requesting the consulting members and the DSB within ten days after the circulation of the original request for consultations.

b) WTO Panel and CETA Arbitration Panel Procedure If consultations have failed in WTO disputes, a Panel may be established,59 which correspondingly applies for CETA, if parties chose it as a forum.60 The public will be informed hereof,61 whereas in the WTO, only parties to a dispute will be informed of the composition of the Panels. Subsequently, the parties submit their arguments to the Panel. These submissions are not made public by the WTO secretariat but according to Article 18 (2) DSU, the parties are free to publish their own submissions and also those of the other party if it is not opposed. Even in this case, any member is entitled to request a non-confidential summary of the party’s submissions for disclosure. Article 10 (3) DSU stipulates that the third parties shall also receive the submissions of the parties to the dispute to the first meeting. CETA goes beyond this practice, given that it expressly stipulates, that parties shall generally make their submissions publicly available.62 However, the Panel reports reflect and summarise the factual and legal allegations and arguments made before the Panel. Hereafter – in the WTO – the first of two oral

58 Corresponding to the Arbitrators under CETA, see paras. 17–19 Annex 29-B Code of Conduct for Arbitrators and Mediators, CETA (Annex 29-B). 59 Art. 12 DSU deals with the Panel procedures; however, in para. 1 it refers to Appendix 3 DSU which establishes the Working Procedures providing additional details concerning the procedures (Working Procedures). On the selection process see von Bogdandy/Venzke (note 10), 225 with further references.

Art. 29 (3) CETA; Art. 29(6)–(8) CETA; paras. 3–10 Annex 29-A Rules of Procedure for Arbitrators, CETA Annex 29-A; although CETA uses the term arbitration Panels. 60

61

Para. 26 Annex 29A.

According to paras. 38 (8)–(10) Annex 29-A, parties shall generally (para. 39) make their submissions publicly available. 62

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hearings is organised; generally both hearings are not public.63 Only panellists, the parties, secretariat staff and interpreters are present throughout the entire hearing. Third parties are usually admitted during a special third party session held after the Panel’s hearing of the parties.64 CETA differs in that respect, given that – following the aim of rapid dispute settlement – it foresees only one hearing,65 which in contrast to the WTO is generally open to the public.66 In the WTO, a second oral hearing exclusively involves the parties,67 while a third hearing may only optionally be scheduled.68 Hereafter, Panels deliberate about the case and the findings for an interim report, a feature, which is also provided for under CETA.69 According to Article 14 DSU, Panel deliberations are confidential70 and reports drafted without the presence of the parties and opinions shall be anonymous. After having been drafted, the Panels – also in CETA71 – issue a confidential72 interim report to the parties (Article 15 (2) DSU). On the basis of this interim report, the parties may request the Panel to reconsider some aspects. In the WTO, this is particularly important regarding the facts of a case, given that at a later stage, the Appellate Body73 will be limited to reviewing solely the legal, not the factual aspects (Article 17 (6) DSU). Within two weeks following the conclusion of the interim report, the Panels submit its report to the parties. 63

Rule 2 Working Procedures.

64

Rule 6 Working Procedures; see also: WTO (note 52), 50.

As a general (dispositive) rule, para. 28 Annex 29-A stipulates that there should be only one hearing. 65

66

CETA generally foresees open hearings, see para. 38 Annex 29-A.

67

Rule 7 Working Procedures.

68

The last sentence of Rule 12 Working Procedures.

69

Art. 29 (9) CETA.

70

See also: Rule 3 Working Procedures.

Similarly, CETA foresees the presentation of a confidential interim Panel report, Art. 29 (9)(3) CETA. 71

72 Art. 15 (2) DSU does not explicitly say “confidential” but this follows from Art. 14, 18 (2) DSU. In practice however, there have repeatedly been cases in which confidentiality was not maintained. A particularly illustrative example is the WTO case, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS/291–293, where the leaked interim report was even published on the internet sites of the NGOs Friends of the Earth and Genewatch. Leakages however, jeopardise the viability of the dispute settlement system, as noted by Delimatis (note 9), 125–126.

On the composition and selection process of the Appellate Body see: von Bogdandy/Venzke (note 10), 226, 233. 73

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c) The DSB (Adoption Phase) On the basis of the interim report, Panels issue a final report which is circulated among WTO members in order to be adopted (Article 16 DSU) and remains confidential before it is published.74 In general, a Panel or Appellate Body report is on average 600 pages long which has led to a total of about 60.000 pages of WTO jurisprudence.75 In contrast, none of the EU’s FTAs has so far reported any dispute.76

d) The Appellate Body Procedure The procedure of the Appellate Review77 is only rudimentarily governed under Articles 16 (4) and 17 DSU, the latter stipulates in Article 17 (10) DSU that proceedings are confidential. Furthermore, some Articles (1, 3, 18, and 19 DSU) are applicable to both Panels and Appellate Body. In addition, the Appellate Body has adopted Working Procedures for Appellate Review on the basis of Article 17 (9) DSU, which in fact govern most of the practical questions.78 After having decided to appeal, the appellant submits its appeal to all the other parties or third participants.79 Within 25 days from the notice of appeal, the appellee(s) have to file their submissions.80 The same time frame applies for the written submissions of third parties. 30 to 45 days after the notice of appeal, the Appellate

74

Similarly, Art. 29 (10)(3) CETA.

Anon., Who runs the world – Wrestling for influence, The Economist, 3 July 2008, available at: http://www.economist.com/node/11664289 (accessed on 6 May 2017). 75

76

Regarding provisions on compliance in CETA, see infra.

CETA does not foresee appeals to trade disputes, see Art. 29 (10) CETA. Art. 8 (28) however, stipulates that an Appellate Body is established for investment disputes. Important matters regarding administration and organisation will need to be addressed by a decision of the CETA Joint Committee (Art. 8 (28)(7) CETA). 77

78 The Working Procedures have been amended six times since 1995. The most recent amendments took effect for appeals initiated on or after 15 September 2010 and are reflected in the revised, consolidated version of the Working Procedures that was circulated to WTO members on 16 August 2010 as a WTO document, WT/AB/WP/6. 79

Appellate Body Working Procedures, Rule 18 (2).

80

Ibid., Rule 22 (2).

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Body holds a sole oral hearing.81 In principle, the hearing is not public and organised along similar lines as the substantive meetings at the Panel stage. Hereafter, the Appellate Body deliberates confidentially (Article 17 (10) DSU) and drafts the Appellate Body report. This report is finally circulated to all WTO members and becomes a public document.

e) The 21 (5) Implementation-Procedure/CETA Compliance Under the procedure of Article 21 (5) DSU parties may request a Panel in order to determine, whether the obligations to bring a measure into conformity with WTO law was met. In this “compliance” Panel procedure,82 usually the original Panel examines the matter in an expedited manner. Even though it is not mentioned in Article 21 (5) DSU, appeals against compliance Panel reports are possible. The proceeding may require the inclusion of the full pre- and post-Panel procedures which, in practice, may render it difficult to respect the shortened time frame of Article 21 DSU.83 Inspired by these WTO rules, CETA states that the final Panel reports are binding on the parties which shall take any measure necessary to comply with within a reasonable period of time. In the case of a dispute, the arbitration Panel shall issue its ruling within twenty days.84

B. Tendencies in WTO Disputes: Enhancing Transparency?

Probably in response to public criticism and to parallel developments regarding greater transparency in national administrative matters and governance, particularly the EU, the United States (US) and Canada have opened the hearings in a number of cases for the public. In 1998, the former US President Clinton announced that he

81

Ibid., Rule 27 (1).

82

Similarly, the compliance procedure under Art. 29 (12)–(14) CETA.

Arthur Steinmann, Art. 21 DSU, in: Rüdiger Wolfrum/Peter-Tobias Stoll/Karen Kaiser, WTOInstitutions and Dispute Settlement, No. 61. 83

84

Art. 29 (13)(2) DSU.

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would open all hearings of cases in which the US was involved to the public.85 Similarly, the EC stated, that it favoured open hearings.86 Accordingly, notwithstanding the description of the formal procedures under the WTO, on the initiative of these members and Canada, WTO disputes have been opened to the public.

1. The First Open Hearings: The “Beef Hormones” Dispute The ‘beef hormones’ dispute87 between the US, Canada und EC was the first case where hearings were opened to the public.88 The first meeting of the Panels with the parties took place on 12–15 September 2005.89 Upon request of the parties, the Panels had agreed to open the hearing for the interested public, arguing that the provision regarding closed hearings was at the disposition of the parties.90 However, with regard to the opposition of third parties, only these Panels’ meetings remained closed. 85 Speech held on 18 May 1998, International Trade Reporter, 15, 20 May 1998, 889; see the Office of the United States Trade Representative’s (USTR) press release, United States Proposes Greater Openness for WTO Disputes, 8 September 2002, available at: https://ustr.gov/archive/Document_Library/ Press_Releases/2002/August/United_States_Proposes_Greater_Openness_for_WTO_Disputes.html (accessed on 6 May 2017); see also the proposals of the USA in communication TN/DS/W/79.

Communication from the European Communities and its Member States, 13 March 2002, TN/ DS/W/1, 6 and Communication from the European Communities, WT/GC/W/92, 14 July 1998. 86

WTO, Hormones dispute (note 40). All documents related to the beef-hormones dispute and other WTO cases mentioned are available at WTO, Index of dispute issues, available at: http:// www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#hormones,_meat (accessed on 6 May 2017). 87

International Centre for Trade and Sustainable Development, DSU Update: GMOS, Beef Hormones, Bridges Weekly (ICTSD Bridges) 8 (38) (2004) provides background information on the case, available at: http://www.ictsd.org/bridges-news/bridges/issue-archive/small-economies-seek-attentionspecial-treatment (accessed on 6 May 2017). 88

89 Information and registration website of the WTO: WTO, Registration begins for public hearings of “Continued suspension of obligations in the EC – hormones dispute” Panels 12–15 September 2005 in Geneva, available at: http://www.wto.org/english/tratop_e/dispu_e/public_hearing_e.htm (accessed on 7 May 2017); communication of the Panel Chairman, WT/DS320/8 and WT/DS321/8. 90 In detail, they argued that Art. 14 (1) DSU does not prohibit open hearings. They reasoned that the wording ‘deliberations’ must be confidential, only referred to the internal decision making process, whereas proceedings in a wider sense were regulated under the non-compulsory standard working procedure, Appendix 3, para. 2. The WTO, the USA and the European Commission announced the open hearings, see the announcement of the European Commission, Registration begins for the public hearings in the WTO disputes “United States and Canada – Continued suspension of obligations in the EC-Hormones dispute” (note 40), available at: http://trade.ec.europa.eu/doclib/docs/2006/july/tradoc_ 129221.pdf (accessed on 6 May 2017) and the WTO (note 87).

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The Secretariat of the WTO provided 400 seats for spectators who had to apply within a rather short time to join the open hearing. Despite the high expectations of the WTO, only 207 applications had reached the WTO and only 65 and 20 spectators attended the hearings, which were broadcasted via closed-circuit television.91 Also the hearings of the subsequent second session were opened to the public. Similar to the first hearing, only a few interested persons attended – mostly delegates of other WTO members.92

2. Open Hearings After Beef Hormones Today, this first practice of the US and the EC seems to have consolidated. After the first hearing in the beef hormone dispute, Panel hearings in United States – Measures Affecting Trade in Large Civil Aircraft93 were also opened to the public. Parties94 to the dispute and the WTO alike advertised the opening of hearings on their internet sites and in their newsletters.95 Also the hearing in a third case, European Communities – Regime for the Importation, Sale, and Distribution of Bananas: Recourse to Article 21.5 of the DSB between the two parties was opened for the public.96 In 91 Sparse Attendance, ICTSD Bridges 9 (9) (2005), 11; WTO in Brief, Beef hormones dispute peanel holds second public hearing, ICTSD Bridges 10 (32) (2006), available at: http://ictsd.net/i/ news/bridgesweekly/7731/ (accessed on 6 May 2017); International Trade Reporter 22, 15 September 2005, 1457. 92

Id., WTO in Brief.

WTO, United States – Measures Affecting Trade in Large Civil Aircraft, Report of the Appellate Body of 12 March 2012, WT/DS353/AB/R. 93

94 The European Commission announced the open hearings: European Commission, Public viewing of First Panel Hearing of the WTO Dispute Settlement Panel in United States – Measures Affecting Trade in Large Civil Aircraft (DS 353), 28 September 2007, available at: http://trade.ec.europa.eu/ doclib/docs/2007/september/tradoc_135918.pdf (accessed on 6 May 2017). 95 Lothar Ehring, Public Access to dispute settlement hearings in the WTO, JIEL 11 (2008), 1021, 1027 critically analyses the practice of announcing public hearings, which the WTO derogated to the parties. 96 European Communities – Regime for the Importation, Sale, and Distribution of Bananas: Recourse to Article 21.5 of the DSB, dispute DS27 announcements by the European Commission, Trade policy, 21 February 2017, available at: http://ec.europa.eu/trade/issues/respectrules/dispute/iph251007_en. htm (accessed on 6 May 2017) and the WTO, WTO hearings on banana dispute opened to public, 29 October 2007, available at: http://www.wto.org/english/news_e/news07_e/dispu_banana_7nov 07_e.htm (accessed on 6 May 2017).

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January and April 2008, hearings in a fourth case, again between the two parties, United States – Continued existence and application of zeroing methodology were opened to the public.97 Apart from this tendency to open Panel hearings, in July 2008, also the Appellate Body opened a first hearing in the Hormones Sanctions case to public observation.98 Shortly later, in October 2008, also the Appellate Body hearings in European Communities – Regime for the Importation, Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador99 and European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States were opened to the public.100 In order to open hearings, the Appellate Body needed to overcome a considerable hurdle in so far, as Article 17.10 DSU stipulates “The proceedings of the Appellate Body shall be confidential”. In a lengthy argumentation, the Appellate Body however concluded that confidentiality was not absolute but – among other – parties are free to forego confidentiality protection for themselves.101 The opening of a fifth Panel hearing in September 2008 was novel in the sense, that also Australia and New Zealand requested open Panel hearings in their disputes. In the dispute Australia – Measures Affecting the Importation of Apples from New 97 European Commission, UPDATE: Public viewing of the hearings of the WTO Dispute Settlement Panel in “United States – Continued existence and application of zeroing methodology” (DS 350), 13 December 2007, available at: http://trade.ec.europa.eu/doclib/docs/2007/october/tradoc_136614.pdf (accessed on 6 May 2017). 98 Disputes DS320 and DS321; the public hearing was cut whenever China or Brazil intervened, as they had not given their permission for an open audience, see: Center for International Environmental Law (CIEL), CIEL attends first open WTO Appellate Body hearing in the famous Hormones dispute, Increased transparency in WTO dispute settlement achieved, 30 July 2008, available at: http://www. ciel.org/news/ciel-attends-first-open-wto-appellate-body-hearing-in-the-famous-hormones-dispute/ (accessed on 6 May 2017). 99 WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 of the DSU by Ecuador of 7 April 2008, WT/DS27/RW2/ECU.

Id., European Communities – Regime for the Importation, Sale and Distribution of Bananas, Recourse to Article 21.5 of the DSU by the United States of 19 May 2008, WT/DS27/RW/USA and Corr.1; WTO, Appellate Body hearing on banana disputes opened to the public, 22 September 2008, available at: https://www.wto.org/english/news_e/news08_e/hearing_22sept08_e.htm (accessed on 6 May 2017). 100

See summary in the reports of the AB, Hormones dispute (note 40), WT/DS321/AB/R, 16 October 2008, paras. 31–33 and Annex IV. 101

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Zealand,102 the Panel agreed to open its first substantive meeting with the parties and third parties to public viewing. Also for a first time, Japan agreed to opening Panel hearings for the public in the dispute United States – Measures Related to Zeroing and Sunset Reviews; Recourse to Article 21.5 of the DSU.103 After the open Panel hearings in United States – Continued Existence and Application of Zeroing Methodology,104 also the Appellate Body hearings in United States – Laws, Regulations, and Methodology for Calculating Dumping Margins,105 held in 2009, were opened for the public. At the request of the parties in the dispute European Communities and its Member States – tariff treatment of certain information technology products106, the Panel agreed that parts of its first and second meeting with the parties should be open for public viewing at the WTO Headquarters in Geneva. Similarly, at the request of the parties in the disputes Canada – Certain Measures Affecting the Renewable Energy Generation Sector107 and Canada – Measures Relating WTO, Australia – Measures Affecting the Importation of Apples from New Zealand Dispute, Report of the Panel of 9 August 2010, WT/DS367. 102

103 WTO, United States – Measures Related to Zeroing and Sunset Reviews, Report of the Panel of 20 September 2006, WT/DS322; see also US Trade Representative, Notice of Public Meeting in the WTO Dispute: United States – Measures Related to Zeroing and Sunset Reviews; Recourse to Article 21.5 of the DSU by Japan (WT/DS322), available at: https://ustr.gov/archive/assets/Trade_ Agreements/Monitoring_Enforcement/Dispute_Settlement/WTO/View_Dispute_Settlement_ Hearings/asset_upload_file58_15176.pdf (accessed on 6 May 2017).

WTO, United States – Continued Existence and Application of Zeroing Methodology, Report of the Panel of 1 October 2008, WT/DS350. 104

WTO, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing), Report of the Panel of 31 October 2005, WT/DS294 “Zeroing” (Article 21.5). See also USTR, Notice of Public Meeting in the WTO Dispute: United States – Laws, Regulations, and Methodology for Calculating Dumping Margins (“Zeroing”) (Article 21.5) (WT/DS294), available at: https://ustr.gov/archive/assets/Trade_Agreements/Monitoring_Enforcement/Dispute_Settlement/ WTO/View_Dispute_Settlement_Hearings/asset_upload_file716_15411.pdf (accessed on 6 May 2017). 105

106 WTO, European Communities and its Member States – Tariff treatment of certain information technology products, Report of the Panel of 16 August 2010, WT/DS375/376/377.

WTO, Canada – Certain Measures Affecting the Renewable Energy Generation Sector, Report of the Panel of 19 December 2012, WT/DS412. 107

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to the Feed-in Tariff Program108, the Panels agreed to start the first and second meeting with the parties and third parties to public viewing at the WTO Headquarters in Geneva. The Appellate Body Division also decided to authorise public observation of Appellate Bodies oral hearing. Following a request from the participants in the disputes European Communities – Measures Prohibiting the Importation and Marketing of Seal Products,109 first the Panel agreed to open its second substantive meeting, followed by the Appellate Body, which decided in the appellate proceedings to open the oral hearing to public observation via simultaneous closed-circuit broadcast to a separate viewing room. Most recently, after open Panel and Appellate Body hearings between the US, Mexico and Canada on US – COOL110 on 3 August 2015, for the first time arbitrations hearings were opened to the public.111

3. With or Without Open Hearings – is WTO Dispute Settlement Transparent? WTO dispute settlement is organised in a tiered system of several stages that are marked to a varying extent by the different methods of dispute settlement. While it is possible during all stages to settle the dispute amicably112, the stages tend to initially apply diplomatic means of dispute settlement and, in the later Panel and Appellate Body stages, shift to the use of more rule oriented methods. Hence, transparency tends to increase with the shift towards the more rule oriented stage. While this correlates to national court proceedings, two aspects are particularly noticeable when 108 Id., EU – Canada, Measures Relating to the Feed-in Tariff Program, Report of the Panel of 19 December 2012, WT/DS426. 109

WTO, European Communities – Seal Products (note 40).

Id., United States – Certain Country of Origin Labelling (COOL) Requirements, Panel Report of 18 November 2011, WT/DS384, WT/DS386, and the announcement of the public hearing by the WTO: WTO, Public viewing of “US-COOL” dispute hearing set, 18 and 19 February 2014, available at: https://www.wto.org/english/news_e/news14_e/hear_ds_18feb14_e.htm (accessed on 6 May 2017). 110

WTO, Registration opens for public viewing of oral hearing in “US-COOL” appeal, available at: https://www.wto.org/english/news_e/news15_e/hear_ds384_386_21jan15_e.htm (accessed on 20 June 2017). 111

112

Art. 3 (7) and (11) DSU; see also: WTO (note 39), 6.

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comparing these systems113: Firstly, in national proceedings, the submissions of parties are principally confidential. In the WTO, members themselves frequently publish their submissions on their websites. In case a member does not chose this option, parties are upon request obliged to provide a public version for publishing. Secondly, it is striking that hearings of Panels and the Appellate Body, as a rule, are not public, different to the procedure found in most national courts proceedings. Apart from these major differences, it is rather common for court proceedings in various judicial systems in democratic States, that disputes may be settled in all stages amicably and that particularly the earlier stages focus to a higher degree on negotiations and consultations, typically without involving third parties or the public. In sum, transparency of WTO dispute settlement partially goes beyond national court procedures while having a transparency deficit regarding the closed hearings. However, since 2005, the hearings of nine disputes (including nine cases with open Panel hearings and three open Appellate Body hearings) have been opened to the public. Most of the cases involved the US, EC/EU and Canada but meanwhile, other members such as Australia, New Zealand, Japan, and Mexico have also agreed to this practice.114 With regards to the relatively low number of disputes that have so far been opened to the public – nine Panel cases and three Appellate Body hearings, which from 2005–2008 constituted over 25% of hearings115 – one cannot yet speak of an open practice. However, the recent history of WTO dispute settlement appears to have reacted to the criticism of a lack of transparency, which was particularly raised when it came to cases which implied public interest. This tendency, which seems to adjust the standards to those of national court proceedings regarding open hearings, however, does not fully respond to the question, as to how meaningful the criteria analysed above are for setting up valid benchmarks for measuring transparency. Despite increased transparency, disputes at all stages remain open to mutually acceptable solutions, a process which is not open to the public. This possibility in fact, is a frequently used option116 and when making use of it, transparency is virtually elimiA comparative overview of several national procedural systems and the proceedings at the EU Courts see Schewe (note 43), 176–182. 113

114

Ehring (note 95), 1034 provides a tabular overview of cases and the modalities of hearings.

115

Ibid., 1026.

In fact, 110 cases were declared as resolved bilaterally or withdrawn whereas for the remainder of 108 cases, no outcome has been notified to the WTO, see supra, note 12. 116

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nated. Notwithstanding this aspect, the formal procedure is organised transparently. When recurring to the parameters indicated above, WTO disputes show a high degree of transparency in all categories117: Not only that transparency concerning the outcome is reflected in the reports; also the documentation of different steps provides a high degree of procedural transparency. Even though one may object that the abundant volume of reports may diminish transparency, summaries however, highlight the main aspects thus providing transparency of content. Moreover, given that ‘decisionmakers’ – i.e. Panels and Appellate Body, including their composition – are known, WTO-dispute settlement is marked by a high level of transparency of accountability.

IV. Transparency in the Dispute Settlement Today and Tomorrow: Lessons for Other FTAs and ISDS? Both, the EU and the US justify the need to conclude FTAs not only because of the WTO’s stagnation but also to realise the potential to adjust trade rules to today’s needs and incorporate higher standards. Accordingly, one may expect that the FTAs of both WTO members correspond to their proposals in the WTO. While the corresponding CETA-provisions have been discussed jointly with WTO rules more extensively, the following section will provide an overview of the corresponding relevant provisions of other recent FTAs. As has been mentioned, similar aspects regarding a lack of transparency are discussed in ISDS. However, similar to the regulation of the two regimes, the matters are mostly discussed in isolation from each other. However, investment and trade have a range of similarities and parallels, for which the process of enhancing transparency in trade dispute settlement seems to be ideal for sharing experiences and giving recommendations in the controversial debate on ISDS. Subsequently, this section will briefly discuss the findings in an ISDS-context, questioning how far regimes and interests differ and whether standards on transparency may be applied to ISDS.

117

Jürgen Bröhmer, Transparenz als Verfassungsprinzip, 2004, 19–23.

420 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 A. Transparency in Trade Dispute Settlement Today and Tomorrow

As indicated, WTO dispute settlement mainly leaves room for more transparency through open hearings. However, the decade-long process of opening of hearings in an organisation of 164 members needs to be seen, at least partially, in the context of the parallel development of transparency in liberal national States, which also took decades and even those States are still in a process of transformation. Against this backdrop it appears at least natural that the WTO requires time whereas FTAs, in which trade partners may immediately negotiate corresponding provisions, are more flexible. However, their respective rules may potentially indicate the future of the WTO.

1. Elements Providing Transparency in EU and US FTAs Generally, the rules of CETA and other recent FTAs concluded by the EU118 as for instance with Singapore,119 South Korea,120 and Vietnam121 on trade dispute settlement resemble those of the WTO’s Panel procedure,122 they differ, however, in so far as the rules incorporate the EU’s proposals on transparency. The fact that the FTAs concluded by the EU foresee the same or similar provisions, illustrates the EU’s commitment to influence rule-making and to set standards for international trade agreements. Similar to the above mentioned developments in cases with the EU as a disputing party, consultations,123 deliberations of the arbitration Panels124 and the Corresponding rules in earlier FTAs concluded by the US and the EU contain similar provisions, see Schewe (note 43), 192–199. 118

119 European Commission, EU-Singapore Free Trade Agreement. Authentic text as of May 2015, available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=961 (accessed on 6 May 2017). 120 See the agreement text, Council decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, OJ 2011 L 127, 6, available via: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L:2011:127: FULL&from=EN#L_2011127EN.01000601 (accessed on 6 May 2017). 121 European Commission, EU-Vietnam Free Trade Agreement: Agreed text as of January 2016, available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437 (accessed on 20 June 2017). 122 Art. 12 DSU deals with the Panel procedures; however, in para. 1. it refers to Appendix 3 of the DSU which establishes the Working Procedures providing additional details concerning the procedures. 123

FTA. 124

Art. 29 (4)(6) CETA; Chapter 13, Art. 3 para. 3 EU-Vietnam FTA; Art. 15 (3)(3) EU-Singapore Chapter 13, Art. 8 para. 7 EU-Vietnam FTA; Annex 15-A, para. 39 EU-Singapore FTA.

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interim reports125 are confidential. In contrast, the hearings are publicly announced,126 generally public127 and the decisions and rulings of the arbitration Panels shall in general be publicly available.128 The submissions of the parties are to a limited extent public,129 depending on the relevant FTA partner.130 The US strives131 for comparable rules132 in their trade agreements, as had been expressed in the TPP. Similarly to the EU FTAs, the TPP also foresees these standards, deliberations of the Panels are held without the presence of parties and consultations are confidential. However, hearings are generally open133 and submissions of the parties134 and reports of the Panels publicly accessible.

2. Is Dispute Settlement Under EU and US FT as More Transparent? The above made observations indicate that EU and US FTA dispute settlement is more transparent than under the WTO. Yet, some particularities need to be noted before reaching a final conclusion. Firstly, the dispute settlement systems under these 125 Art. 29 (9)(3) CETA; Chapter 13, Art. 10 EU-Vietnam FTA is silent on the confidentiality of interim reports and it is not sure if Art. 22 applies to them; Annex 15-A, para. 39 EU-Singapore FTA. 126 Annex 29-A, para. 26; Chapter 13, Annex I para. 21 EU-Vietnam FTA; Annex 15-A, para. 26 EU-Singapore FTA. 127 CETA generally foresees open hearings, see Annex 29-A, para. 38; Chapter 13, Art. 8 (4) EUVietnam FTA; Art. 15 (16)(2) EU-Singapore FTA. 128 Art. 29 (10)(3) CETA; Chapter 13, Art. 22 (2) EU-Vietnam FTA; Art. 15 (19)(2) EU-Singapore FTA. 129 According to Annex 29-A, para. 38(8)–(10), parties shall generally (para. 39) make their submissions publicly available. Differently however, Chapter 13, Art. 8 para. 5 and 7 EU-Vietnam FTA which seems to foresee confidentiality of the submissions. The formulation in Art. 9 Annex 14-A EU-Korea FTA; Annex 15-A, para. 39 EU-Singapore FTA are relatively open, leaving the publication of own submissions to the parties while providing the right to request non-confidential versions of the other party for publication. 130 Differently though Annex 29-A, para. 38 CETA, where “… each party shall make its submissions publicly available …”.

It must be noted that US President Trump did not follow the previous US trade tradition and the US officially withdrew from TTIP, see: USTR, The United States Officially withdraws from the Trans-Pacific Partnership, January 2017, available at: https://ustr.gov/about-us/policy-offices/pressoffice/press-releases/2017/january/US-Withdraws-From-TPP (accessed on 6 May 2017). 131

132

See supra, III. B.

133

Art. 28 (13)(a) TPP.

134

Though drafted in a more careful manner, see Art. 28 (13)(d) TPP.

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FTAs differ in one important aspect from the WTO, as they do not provide for an appeal system. While the EU indicates these mechanisms – i.e. without any appeal – as speedy it bears the risk though that, unlike the WTO, decisions cannot be corrected by an appeal instance. This may be seen as a deficiency, which resembles one of the aspects criticised in the ISDS debate.135 Herein, critics argue, the awards issued by undemocratically appointed arbitrators may be final and binding for States, without any realistic possibility of appeal or redress.136 The risk is thus seen for matters of societal interest and indicates that transparency is of particular importance for these single instance proceedings. Given that, so far, no case has been reported for any of the EU’s FTAs, it seems improbable that politically unwanted developments might develop under these dispute settlement rules. Accordingly – at least for the moment – the missing appeal instance in trade matters under FTAs has not been criticised. The fact that so far no dispute under FTA has been reported needs to be seen in a second context. Mavroidis and Sapir137 examined the correlation between FTAs and the number of disputes between the trade partners under the WTO. They showed that, with the mere existence of FTAs between WTO members, the number of WTO disputes between them considerably decreased – mostly to zero disputes. The exact reasons for this development however, are still unknown. At first glance one may interpret the overall effect of FTAs as positive, given that the number of disputes decreases. More thorough reflection however, gives no indication, why the FTAs would have the effect of making disputes avoidable. Notwithstanding the assumption indicated above, that the recent EU/US FTAs a priori enhance transparency in dispute settlement, the outcomes of the Mavroidis/Sapir-study implicitly questions at least the significance of this conclusion. Given that the number of disputes has dropped without revealing any plausible cause, it begs the question, what may have occurred in the opaque phase before a formal notification of the dispute. Here, one 135

See for instance von Bogdandy/Venzke (note 10), 226, 232, 251 and supra, I. B.

The CETA conception astonishes in so far, as the single instance trade dispute settlement proceedings stand in contrast to the corresponding concept of the settlement of investment disputes in Art. 8 (28) CETA; this however, having the option for an appeal, differs to the traditional concepts applied in ISDS. These traditional single instance concepts in ISDS are typically said to correspond to the parties’ interests for a rapid settlement of disputes. The CETA provision may insofar be seen as a novelty in ISDS; however, the differing concepts for trade and investment disputes appear to be inconsistent. 136

Petros Mavroidis/André Sapir, Dial PTAs for Peace, Journal of World Trade 49 (3) (2015), 351–372. 137

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reasonable explanation would be the use of diplomatic, i.e. power oriented dispute settlement methods, i.e. that one party ‘persuades’ the trade partner in consultations. This interpretation seems particularly plausible in cases of diverging economic power of the two FTA partners.138 Accordingly, FTAs which are initially supposed to increase transparency in dispute settlement would instead decrease transparency, as it is not possible to monitor, how disputes were avoided. An alternative explanation can be found in other mechanisms of these FTAs which aim at preventing tensions and disputes between the trade partners.139 These are for instance the common forums for regulatory matters as critically discussed for the TTIP and CETA140 though already a reality in previous FTAs. While one might argue, that these forums provide more transparency on regulatory issues, it is questionable, whether the reasons leading to the decisions taken in these fora are known and decisions thus transparent. In sum, the increased levels of transparency implemented in the FTAs mentioned may à priori be seen as positive developments. Notwithstanding, when combining this finding with the outcome of Marvroidis’ and Sapir’s study, that newly concluded FTAs bring the number of disputes between the FTAs parties to zero, one may question the presumed merits for enhancing transparency. Given that the most plausible explanation for this tendency is a different form of non-transparent dispute settlement, the level of transparency in trade dispute settlement under FTAs rather seems to decrease.141

B. Transparency and ISDS – Lessons (to be) Learned from Trade Dispute Settlement?

With regard to the experiences in international trade dispute settlement regarding transparency, one may question, whether these have contributed to the field of ISDS, 138

Ibid., 360.

139

Ibid., 360–361.

See for instance the Regulatory Cooperation Forum, Art. 21 (6) CETA or the Joint Committee in the European Economic Area, see Art. 92 EEA, available via: http://www.efta.int/eea/eea-institutions/ eea-joint-committee (accessed on 20 June 2017). 140

141

Mavroidis/Sapir (note 136), 360–361.

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or if not, if they may do so. Investment protection and dispute settlement is an area which is closely linked with trade activities and regulated by most modern FTAs. Similar to trade dispute settlement, transparency is a controversial topic in ISDS. Subsequently, this raises the question, whether the two regimes and interests are comparable to an extent, where the trade experiences can simply be adopted. If not, where are those differences that are to be found, and to what extent do they require substantial differing rules, and for what reasons?

1. The Differing Regimes for Investment and Trade Disputes In practice, international commercial activities frequently comprise both aspects: investments are to some extent necessary for engaging in trade and, vice versa, trade frequently requires investments in other States. Despite this overlap, the governing legal regimes for trade and investments diverge, as the WTO is a centralised system, whereas ISDS with approximately 3000 bilateral investment treaties (BITs)142 with different arbitral forums constitutes a de-centralised system. Subsequently, this raises the question as to how far these economic activities differ regarding motivations and risks, for which they would require different rules. Foreign investments are typically subject to the law of the host State and thus, to its power to amend the regulatory environment – also to the detriment of investors. Furthermore, having a mid- or long-term character, the nature of FDIs principally implies, that, they cannot be easily withdrawn or redirected, which makes them particularly sensitive to legislative changes. This aspect indicates the investors’ interest in obtaining guarantees by the host State for the continuance of the legislative environment at the time of investing. Initially, i.e. some 50 years ago, ICSID reflected this interest of investors, who negotiated investment conditions with the host States, and was thus rather drafted for dealing with contract disputes.143 Meanwhile, this legal area has further developed, and BITs concluded by States further strengthened the rights of investors. Today, BITs usually not only provide procedural but also substanSee UNCTAD, International Investment Agreements Navigator, available at: http://investment policyhub.unctad.org/IIA (accessed on 6 May 2017). 142

143 Joost Pauwelyn, The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus, 1 October 2015, available at: https://ssrn.com/ abstract=2549050 or http://dx.doi.org/10.2139/ssrn.2549050, 45 (accessed on 6 May 2017).

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tive rules, which investors may directly invoke at international arbitration tribunals when considering them to be infringed. Apart from increasing the investors’ rights, this instrument also aims at de-politising investor State disputes. By consenting to this strategy, the host States intend to attract foreign capital which would contribute to the development of the country. In exchange, even investing in presumably unstable States would become more attractive for investors, as their risk of losing the investment without compensation were minimised. Accordingly, international investment law and ISDS are considered as an efficient tool to harness risks and to promise legal predictability and stability. However, the aim of de-politising investor-State-disputes has an additional effect. While previously, investors generally depended on the willingness of their home State to mediate in disputes, ISDS enables them to act independently from their home States. Accordingly, under ISDS investors have become central actors with a strong individual position, detached from their home States. Eventually, the ISDS system, thus considerably differs to the traditional Stateto-State dispute settlement, particularly regarding its decentralisation under BITs and the different arbitral forums. Arbitration rules in ISDS may differ considerably under these regimes and it goes beyond the scope of this study to discuss them.144 The procedural norms of most BITs regulating ISDS however, are rooted in commercial arbitration and are still coined by this initial structure that rather displays the corresponding interests and is also reflected in arbitration rules. These rules principally provided for confidentiality in the proceedings,145 and those opting for this method of dispute settlement frequently appreciate this aspect of arbitration.146 Subsequently, it is possible under some regimes that not even the existence of cases is made public, that the submissions of the parties as well as hearings, deliberations, and awards are confidential. Trade disputes under the GATT/WTO differ in various instances from these aspects. Firstly, trade disputes are grounded on a multilateral treaty, which not only set out procedural, but also the substantive rules that have been developing since the See for instance the overview provided by Neale Bergmann, Transparency of the Proceedings and Third Party Participation, in: Chiara Giorgetti (ed.), Litigating International Investment Disputes (2014), 375, 383. 144

145

Schütze (note 55), 120–122, paras. 411–413.

See e.g. Norton Rose Fulbright, 2016 Litigation Trends Annual Survey, 15 September 2016, available at: http://www.nortonrosefulbright.com/news/142350/norton-rose-fulbright-releases-2015litigation-trends-annual-survey (accessed on 6 May 2017). 146

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conclusion of the GATT 1947. These rules had found the consent of WTO members, which liberalised trade in order to enhance trade relations with the aim of bringing welfare benefits to their economies. These expectations are principally based on David Ricardo’s theory on the comparative advantages147 and accordingly, WTO members not only expect a bigger variety of foreign products and services, but also aim to enhance trade relations between domestic producers and service providers. These commitments, however, require the reciprocity of the States’ concessions, as in practice, States seldom grant trade advantages unilaterally.148 Furthermore, principally different to investments, exporters do not necessarily require considerable volumes,149 nor do they require a stable and comprehensive and long-term integration into the foreign States’ sphere of control. Furthermore, regarding potential policy risks in the trade-partner State, losses of property may be lower than in the case of fixed investments, given that trade is more flexible regarding the redirection or displacement of goods and services. Apart from these aspects, the interest of home States in their locally based producers and exporters principally differs to that towards the capital-exporting actors. The exporters’ home State benefits from the economic success of local companies, which contribute to its economy, employment, social security system and tax revenue. The principal interest of exporters thus correlates with their home States’ interest in promoting exports and representing trade interests internationally.150 For this reason, it appears consistent that States would defend their traders’ interests in international trade disputes151 which also explains the inter-State (in the WTO: member driven) 147 See for instance the WTO, Understanding the WTO: Basics, The case for open trade, available at: https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact3_e.htm (accessed on 12 September 2016).

Alan Sykes, Public v. Private Enforcement of International Economic Law: Of Standing and Remedy, University of Chicago Law & Economics, Olin Working Paper No. 235, February 2005, 17, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=671801 (accessed on 6 May 2017). Commitments to LDCs are to be seen as an exception to this fact. 148

For the importance of Small Medium Enterprises for the EU Member States see for instance the Eurostat study of September 2015, Statistics on small and medium-sized enterprises, available at: http:// ec.europa.eu/eurostat/statistics-explained/index.php/Statistics_on_small_and_medium-sized_enterprises (accessed on 6 May 2017). 149

See for instance the structure and aims of ‘Germany Trade & Invest’, the economic development agency of the Federal Republic of Germany which (among other) supports export promotion, available via: http://www.gtai.de (accessed on 6 May 2017). 150

See the transposition of this logic in the EU to the Trade Barriers Regulation, EC Council Regulation No. 3286/94, OJ 1994 L 349, 71, and in the US, U.S. Trade Act of 1974, 19 U.S.C. § 2411. 151

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nature of trade dispute settlement. Correspondingly, this mutual interest of States and exporters translated in the inter-State dispute settlement which is marked by the respective peculiarities, such as a high degree of diplomacy. These considerations explain some of the differences between trade and investment regimes, yet today’s economic reality further complicates the stringent separation of the interests and matters. Globalised economy with global production chains and the factual overlaps of trade and investment relations question the validity of the aforementioned.152 In addition, States acknowledge positive effects for their economies through capital exports and FDIs. Notwithstanding, the structural differences between trade and investments and the interests involved still are reflected in the historically grown structures of the WTO and other trade and investment agreements and their respective dispute settlement systems. However, economic actors are also flexible as they test both regimes in the same or related matters.153

2. The Growing Interest in Transparency Requirements in ISDS While the aforementioned at least partially explains the different character of international investment arbitration and international trade dispute settlement, it does not indicate, why the standards for transparency in the two dispute settlement regimes should differ.154 Subsequently, before commenting on this aspect, the following relatively new developments provide reasons for the growing interest in ISDS and transparency: Firstly, ISDS is a relatively recent phenomenon, given that there were only This applies at least when assuming that, despite global value chains there is a certain extent of a local manufacturing; on these aspects see: Sergio Puig, The Merging of International Trade and Investment Law, Berkeley Journal of International Law 33 (2015), 4. 152

See for instance the WTO and ISDS cases on plain packaging: Australia – Certain Measures Concerning Trademarks and Other Plain Packaging, Requirements Applicable to Tobacco Products and Packaging, Report of the Panel of WTO/DS434 or the corresponding UNCITRAL case Philip Morris Asia Limited (Hong Kong) v. The Commonwealth of Australia, the government of Australia published further information on both cases, available via: https://www.ag.gov.au/tobaccoplainpackaging (accessed on 6 May 2017); see also: Mark Feldman, Distinguishing Investors from Exporters under Investment Treaties, Chapter 33, in: Jean Kalicki/Anna Joubin-Bret, Reshaping the Investor-State Dispute Settlement System (2015), 760. 153

154 CETA, trade disputes are dealt with in Chapter 29 and Chapter 8 in ISDS; similar to the overall separation of the two regimes, the transparency requirements are discussed separately, today having a strong focus on transparency in ISDS, as noted in the Introduction.

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ten cases until 1998, a stark contrast to an overall of 739 cases today.155 Secondly, the interest stems from a growing number of cases which have potential implications on the respective States’ budget,156 as investors claim compensation for their damages from the States’ budgets. For that reason, taxpayers may eventually find that they pay for investors and considerable costs of the arbitration process.157 Thirdly, with the increasing use of ISDS, a political dimension gained importance: Recent investment disputes not only comprise contract claims but were also directed against legislative acts of States. Similar to some WTO disputes mentioned,158 some claims concern politically sensitive issues, such as the privatisation of water,159 nuclear energy, fracking, or public health, i.e. decisions that are typically reserved to the domain of the legislator. In these cases, the influence by private actors and particularly, foreign investors through ISDS was particularly negatively received by the public.160 Finally, the grown interest in ISDS in Western Europe, Canada and Australia can be explained by the fact that some of the more recent claims in sensitive areas were not only brought against developing countries, but also against industrialised States such as Germany, Canada, or Australia. With regard to these implications of ISDS, it appears natural that confidentiality has caused criticism and led to demands for transparency. In contrast to these demands, norms of most BITs regulating ISDS however, are still coined by the initial structure of international investment law that rather displays the interests of commercial arbitration. Correspondingly, this character is also reflected in the arbitration rules which principally foresee confidentiality in the proceedings.161 155 According to UNCTAD, there are currently 2953 BITs, of which 2322 are in force plus 362 Treaties with Investment Provisions of which 294 are in force, available via: http://investmentpolicy hub.unctad.org/IIA (accessed on 12 September 2016). 156 UNCTAD provides a database on the amount of damages paid under ISDS, available at: http:// investmentpolicyhub.unctad.org/ISDS/FilterByAmounts (accessed on 6 May 2017). 157 See for instance Petra Pinzler/Wolfgang Uchatius/Kerstin Kohlenberg, Schattenjustiz: Im Namen des Geldes, Die Zeit, 27 February 2014, available at: http://www.zeit.de/2014/10/investitionsschutzschiedsgericht-icsid-schattenjustiz (accessed on 31 March 2016). 158

See supra, II. C. 2.

159

Aguas del Tunari v. Bolivia, ICSID Case No. Arb/02/3, Award of 21 October 2005.

Toby Landau/Romesh Weeramantry, A Case for Transparency in Investment Arbitration, Chapter 48, Aguas del Tunari v. Bolivia, ICSID Case No. Arb/02/3, in: Kalicki/Joubin-Bret (note 152), 669; also: Petra Pinzler, Freihandelsabkommen: “TTIP ist ein Angriff auf Demokratie und Rechtsstaat”, Interview with Klaus Staeck, Die Zeit, 14 May 2014, available at: http://www.zeit.de/wirtschaft/201405/interview-staeck (accessed on 12 September 2016). 160

161

Schütze (note 55), 120–122, paras. 411–413.

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3. The Transferability of Trade Dispute Transparency-Standards to ISDS These structural differences of the regimes on the one hand and striking similarities between trade and investment dispute settlement on the other hand, raise the question whether there are parallels that would make experiences of transparency in international trade dispute settlement transferable to the ISDS debate. Principally, the considerations regarding the general aspects elaborated above (II. B.), regarding aims and interests in trade disputes for international dispute settlement seem to be identical in ISDS, as it should be the main aim to solve and settle the dispute.162 This aspect thus lends itself to the use of diplomatic means and thus confidential means of dispute settlement seem to apply to both areas to the same degree. While trade disputes are made public from the establishment of a Panel, this is not necessarily the case for ISDS.163 Furthermore, the appointment of ISDS arbitrators is constantly criticised for a lack of transparency and (democratic) legitimation,164 as well as for the fact that submissions are usually confidential and hearings are generally not public.165 Frequently, not even the awards are publicly accessible.166 Returning to the interest in transparency elaborated above, one may question, what valid reasons other than confidential business information may play a role. At first glance, none of the concerns seem to apply, however, a more nuanced look may reveal that publication for both, investors and States may have drawbacks. The revelation of an investor initiating a claim against a State may e.g. decrease his popularity or affect his reputation whereas a State might have to deal with imitators and subsequent claims. Particularly the latter aspect, with a virtually unlimited number of claimants, constitutes a risk for a State. States furthermore need to coherently stick to one line of argumentation whereas investors are flexible to adopt different strategies and arguments. Moreover, private companies may in practice avoid payments e.g. to 162 Frequently investors use the menace of initiating an ISDS proceeding as instrument for exerting pressure on governments. 163

Bergmann (note 144), 383.

164

Gaukrodger/Gordon (note 6), 93; von Bogdandy/Ventzke (note 10), 225, with further references.

Regarding the practical aspects regarding the previously lacking rules on transparency read: Landau/Weeramantry (note 160), 669. 165

166 Referring to unknown cases: UNCTAD, Investor-State Dispute Settlement: Review of Developments in 2015, 8 June 2016, 2, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb 2016d4_en.pdf (accessed on 6 May 2017).

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the winning State for compensating its costs by carefully restructuring the company or transferring its assets. A State in contrast does not have these means at its disposal but will always have to pay, which indicates that for transparency, dispute settlement among equals seems to be easier to handle. Notwithstanding these aspects, the macro structures seem to recommend similar transparency standards, given that both types of disputes typically involve considerable amounts of money, costs and damages, which – in the case of ISDS – eventually have to be borne by the tax payers. This aspect automatically generates broad interest without any further necessity for dramatic public concerns as mentioned above. Furthermore, transparency and public awareness would generate additional control on arbitrators, ensuring that decisions are balanced and take social and democratic concerns into consideration to the same extent as economic ones. Accordingly, scholarly focus and public attention led to numerous studies on transparency in ISDS,167 to new rules which bring more open and transparent investor-State arbitration,168 and even to public hearings broadcasted on the internet.169 Particularly worth mentioning among the indicated recent agreements on ISDS which foresee transparency as a rule, are the United Nations Commission on International Trade Law (UNCITRAL) Transparency Rules which foresee that ISDS should be open. However, so far they only have a limited impact, given that these rules only apply after April 2014,170 and thus are not used for the around 3,000 pre-existing BITs. This aspect is addressed by an initiative which led to the Mauritius 167

See supra, note 8.

UNCITRAL Arbitration Rules (note 7); See the amendments of Rule 32 ICSID Arbitration rules in 2006, for background information and further references see: Confidentiality and Transparency – ICSID Convention Arbitration, available at: https://icsid.worldbank.org/en/Pages/process/ Confidentiality-and-Transparency.aspx (accessed on 23 June 2017) and UNCTAD, Series on Issues in International Investment Agreements II – Transparency (UNCTAD/DIAE/IA/2011/6), 31 December 2012, available at: http://unctad.org/en/PublicationsLibrary/unctaddiaeia2011d6_en.pdf (accessed on 6 March 2017). Furthermore, see the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, GA Res. 69/116 of 10 December 2014 (the “Mauritius Convention on Transparency”) [on the report of the Sixth Committee (A/69/496)]. 168

169 See Dispute Resolution in Germany, Peter Bert’s Blog about Litigation, Arbitration and Mediation in Germany, Transparency in Investment Arbitration: Video Stream of Hearing in Vattenfall v. Germany, 3 October 2016, available at: http://www.disputeresolutiongermany.com/2016/10/transparency-ininvestment-arbitration-video-stream-of-hearing-in-vattenfall-vs-germany/?sthash.oBxmWWnm.mjjo (accessed on 6 May 2017). 170

Art. 1 (4) UNCITRAL Transparency Rules.

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Convention,171 allowing the application of the UNCITRAL Transparency Rules to arbitrations commenced under investment treaties concluded before 2014. Having been first signed on 17 March 2015, today, twenty States are signatories; however, it can only enter into force after ratification by three States. This step was only recently accomplished with the ratification of Canada on 12 December 2016 and Switzerland (18 April 2017); the Convention will enter into force six months later on 18 October 2017. Notwithstanding, some treaties explicitly started to state that they would apply these rules to the public disclosure of information.172 CETA for instance, explicitly refers to the UNCITRAL Transparency Rules.173

V. Conclusion Decisions taken under the WTO dispute settlement system may have an impact on issues that go beyond what may be regarded as strictly trade-related. Accordingly, since the creation of the organisation, the wider public has already become interested in monitoring disputes having societal interest. With regard to limited access to information, one point of criticism concerned the lack of transparency and concentrated on the hearings of Panels and the Appellate Body, which are principally closed to the public, different to court proceedings of democratic WTO members. Open hearings in national court proceedings primarily serve the aim of ensuring independence of the judiciary and the monitoring of jurisprudence. This general interest in open hearings is transferable to WTO dispute settlement, and accordingly, its’ transparency has a specific importance not only for the economic actors and other WTO members, but also for societal groups striving to defend public interests. Over the years, some WTO members and the Panels/Appellate Body have reacted to the transparency deficit and a number of hearings of disputes have been opened to the public. This in fact may be seen as a positive development, given that in WTO disputes, few aspects – with the potential exception of confidential business informa171 UNCITRAL, Status United Nations Convention on Transparency in Treaty-based InvestorState Arbitration, 2014, available at: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/ 2014Transparency_Convention_status.html (accessed on 6 May 2017). 172 Stephan Schill, The Mauritius Convention on Transparency, Journal of World Investment and Trade Law 16 (2015), 201, 203. 173

Art. 8 (36) CETA.

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tion – would generally require confidentiality. Furthermore, during the preliminary stages of a dispute, the members have extensive opportunity to confidentially settle the disputes in negotiations or consultations. While the procedures initially foresee confidential consultations, only the later more rule- oriented stages gradually increase transparency requirements. Given that this practice principally also applies internally, i.e. in the WTO, other WTO members also do not necessarily gain insight into disputes during their early stages. However, they have the possibility to become a third party and thus receive the early submissions of the parties. By taking this option they may gain information earlier, plus, provide a substantial input into the dispute settlement process. Externally, i.e. from a non-member perspective, transparency is more limited. Those who are interested in gaining information are limited to what is published by the WTO or by the disputing parties. In practice however, this frequently includes the submissions to Panels and to the Appellate Body as sources of information. Compared to national court proceedings, in which only parties are entitled to receive the submissions, in this regard, the WTO practice means an increase of transparency. In other words, external transparency in WTO disputes may, in this stage of a dispute – prior to the hearings – even be considered to be higher than in national court proceedings. However, Panels and Appellate Body have responded to the main point of criticism that hearings are closed to the public and have agreed, upon request of the disputing members, to open hearings. Indeed, meanwhile it seems that this has become a practice of the EU and the US. Given that both members are by far the most active complainants and respondents, it is probable that the number of open hearings will continue to grow. Furthermore, also other WTO members – Australia, New Zealand, Canada and Mexico – have opted for the opening of hearings, not counting the third parties in other cases which agreed to this practice.174 In other disputes hearings were not opened to the public due to the opposition of third parties. It thus remains to observe the development in the WTO, which however, has shown to be very slow due to the diversity and multitude of interests among the 164 members. On other levels of international trade – namely in FTAs concluded by the EU and the US – one may observe, to what extent suggestions for increased transparency and The number may today amount to more than twenty members, see the references in Ehring (note 94), 1027. 174

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public participation are integrated in the rules and thus are coherent with their positions in WTO dispute settlement. So far, however, these FTAs do not have any record of dispute settlement decisions, for which the rules have a rather symbolic character. Factually, they instead seem to exercise an adverse effect on transparency, given an inverse correlation between the existence of a FTA and trade disputes between the FTA partners. Once, FTAs are negotiated, the partners seem to abstain from filing trade disputes under the WTO. In the light of the absence of disputes, so far there is no evident explanation for this effect. Accordingly, despite formally increasing the level of transparency in FTAs dispute settlement, the FTAs instead rather bring opacity, as the reasons of dispute avoidance are not known. Subsequently, the impact of this tendency on the WTO and its dispute settlement system remains to be observed. In parallel to the developments in international trade dispute settlement, one may observe similar tendencies for enhancing transparency in ISDS. Contrary to the traditionally more confidential concept of arbitration, on diverse levels transparency is increased in BITs but also in the model rules of the arbitral fora. The EU and Canada claim, that the corresponding CETA provisions, referring to the UNCITRAL Transparency Rules,175 bring high transparency standards to the investment rules of this FTA. While theoretically, the concept of bilateralism facilitates enhancing transparency, the process nevertheless requires patience.

175

Art. 8 (36) CETA.

The Social Dimension of Sustainable Development in EU Trade Agreements: Strengthening International Labour Standards LILIAN RICHIERI HANANIA

ABSTRACT: The article examines the social and labour provisions contained in the chapters on sustainable development of trade agreements negotiated by the European Union since 2008. It sets forth a systematised view of the legal techniques used in those agreements to foster respect for and enforcement of international labour standards recognised within the International Labour Organization, going from the reaffirmation and incorporation of those standards to raising protection levels and establishing control mechanisms. The article sheds light on how the European Union trade agreements may contribute to strengthening such standards and, ultimately, to consolidating this facet of the social dimension of sustainable development at the international level. In its concluding remarks, it raises discussions on future perspectives for social and sustainable development in trade agreements. KEYWORDS: International Labour Standards, Sustainable Development, International Trade Agreements, European Union, International Labour Organisation, Social Dimension of Sustainable Development

I. Introductory Remarks: International Trade Agreements and Labour Standards During the Uruguay Round of negotiations, which led to the foundation of the World Trade Organization (WTO), the General Agreement on Tariffs and Trade (GATT) Contracting Parties were unable to agree on the inclusion of social and

Attorney, PhD in International Law from the University Paris 1 – Panthéon-Sorbonne (2007), Collaborator at the CEST (Centro de Estudos Sociedade e Tecnologia, University of São Paulo – USP), Associate Researcher at the IREDIES (Institut de recherche en droit international et européen de la Sorbonne, University Paris 1) and the CUREJ (Centre universitaire rouennais d’études juridiques, University of Rouen). The author would like to thank Magdalena Ličková and Olivier Millot for their careful reading of an earlier version of this article.

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labour standards (the so-called ‘social clauses’) into the WTO Agreements.1 Explicit references in the WTO to such dimension remain thus limited to very few provisions. The clearest reference is probably the first paragraph of the Preamble of the Marrakech Agreement, which recognises that WTO Members’ relations in the trade and economic field: should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development (…) (emphasis added).

Reference to the comprehensive concept of ‘sustainable development’ certainly provides openness for social considerations in the organization. However, the state of discussions with respect to this issue in the WTO has not significantly progressed since 1996, when the WTO Ministerial Conference held in Singapore summarised it as follows: We renew our commitment to the observance of internationally recognized core labour standards. The International Labour Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them. We believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO Secretariats will continue their existing collaboration.2

1 See, for instance, WTO, Press Brief – Trade and Labour Standards, available at: https://www. wto.org/english/thewto_e/minist_e/min96_e/labstand.htm (accessed on 16 March 2016); WTO, Trade and Labour Standards – A difficult issue for many WTO member governments (2001), Doha World Trade Organization (WTO), Ministerial 2001: Briefing notes, available at: https://www.wto.org/ english/thewto_e/minist_e/min01_e/brief_e/brief16_e.htm (accessed on 16 March 2016). On international labour standards, see ILO, Labour standards, available at: http://www.ilo.org/global/ standards/lang--en/index.htm (accessed on 17 March 2016). 2 WTO, Singapore WTO Ministerial Declaration (1996), WT/MIN(96)/DEC, 13 December 1996, available at: https://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm (accessed on 16 March 2016).

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WTO Members are therefore committed to respecting core labour standards,3 but the ILO continues to be the competent international organisation to deal with and promote those standards.4 Since 1994, a working group exists within the ILO to address the ‘social dimension of international trade’. In fact, incorporating labour standards into WTO obligations has been strongly contested by developing countries, whereas certain developed Members, e.g. the European Union (EU) and the United States (US), wish to reduce the ‘social dumping’ effect that might result from lower levels of protection resulting from other countries’ national labour and social law. In 2008, the ILO Declaration on Social Justice for a Fair Globalization summarised these contradictory positions regarding the linkage between trade and labour standards. It recalled that “respecting, promoting and realizing the fundamental principles and rights at work” are among the strategic objectives of the ILO, while “noting: (…) that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes”.5

3 The International Labour Organizatoin (ILO) uses the expression ‘fundamental principles and rights at work’ to refer to (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. See ILO, ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998), adopted by the International Labour Conference at its Eighty-Sixth Session, Geneva, 18 June 1998 (Annex revised 15 June 2010), Art. 2, available at: http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang-en/index.htm (accessed on 17 March 2016). It is worth recalling the originality of this Declaration, which states, also in its Art. 2, that (…) all [ILO] Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions (…) (emphasis added).

As other international organisations, the WTO and the ILO have their own specialised competencies. Certain transversal subjects may require, though, greater coordination not only between two or more organisations, but also at the national level, when governments delineate their positions in different international fora. Since November 2015, the WTO comprises 162 Members, while the ILO membership accounts for 187 countries. Except for Liechtenstein, Macao and Chinese Taipei, all WTO Members are also Members of the ILO. See WTO, Understanding the WTO: The Organization – Members and Observers (2016), available at: https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (accessed on 28 March 2016); and ILO, Alphabetical list of ILO member countries (2016), available at: http://www.ilo.org/public/english/standards/relm/country.htm (accessed on 28 March 2016). 4

ILO, ILO Declaration on Social Justice for a Fair Globalization (2008), adopted by the International Labour Conference at its Ninety-Seventh Session, Geneva, 10 June 2008, available at: http:// www.ilo.org/wcmsp5/groups/public/---dgreports/---cabinet/documents/genericdocument/wcms_ 371208.pdf, 11 (accessed on 16 March 2016). 5

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Since the matter has been extremely confrontational at the multilateral level and particularly within the WTO, some developed countries have included reference to widely accepted ILO labour standards in their bilateral and/or regional trade liberalisation agreements.6 Labour standards are usually referred to in those agreements according to two approaches: a ‘conditional’ rationality (i.e. the respect for international labour standards is linked to economic sanctions or incentives, e.g. in agreements concluded by the US or Canada)7; or a ‘promotional’ logic (based on dialogue, cooperation and monitoring, e.g. bilateral or regional agreements negotiated by the EU, New Zealand, as well as some South-South trade agreements).8 While conditionality based on the ratification of international legal instruments on labour standards has been found to lead to significant changes in national labour law, these changes have ultimately been highly dependent on the political will of partner countries and work done by those countries’ civil society (and mainly workers organisations),9 aspects that are directly targeted under the promotional approach. Moreover, the conditional approach has often been accompanied by (promotional) cooperation initiatives that have proven to be quite useful in practice.10 The EU offers a prolific example of the promotional approach to reinforce labour provisions in its bilateral and regional trade agreements in the 90’s and beginning of the 2000’s with the inclusion, in more recent agreements, of a legally binding chapter on sustainable development. Since the Economic Partnership Agreement (EPA) conAlso, to export its own standards and norms. See Axel Marx/Brecht Lein/Nicolás Brando, The Protection of Labour Rights in Trade Agreements: The Case of the EU-Colombia Agreement, Journal of World Trade 50 (4) (2016), 587, 589. 6

The same approach applies to the EU unilateral Generalized Scheme of Preferences plus (GSP+), which grants preferential treatment to selected countries which ratify and implement core international conventions on human and labour rights, environment and good governance. See European Commission, Trade – Generalised Scheme of Preferences (GSP), available at: http://ec.europa.eu/trade/policy/ countries-and-regions/development/generalised-scheme-of-preferences/ (accessed on 8 July 2016). 7

8 See ILO, Studies on Growth and Equity – The Social Dimensions of Free Trade Agreements (revised edition 2015), available at: http://www.ilo.org/wcmsp5/groups/public/---dgreports/---inst/documents/ publication/wcms_228965.pdf (accessed on 16 March 2016).

Ibid., 29–42. On the difficulties in transposing a new institutional and regulatory framework on labour rights into practice, with a preference for a conditional approach, see Marx/Lein/Brando (note 6), 587 et seq. 9

10 For a comparative analysis of the effects of these two approaches, arguing that both lead to improvement of labour rights, be it ex ante (e.g. in US agreements) or ex post with more gradual effects (e.g. in EU agreements), see Evgeny Postnikov/Ida Bastiaens, Does dialogue work? The effectiveness of labor standards in EU preferential trade agreements, Journal of European Public Policy 21 (2014), 923.

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cluded in 2008 with the CARIFORUM (Caribbean Forum) countries,11 the EU chapter on sustainable development contains, moreover, a comprehensive institutional framework. The present article examines the use and promotion by the EU of ILO labour standards in this ‘new model’ employed with its trade partners since 2008. The inclusion of international labour standards in the EU bilateral and regional trade agreements have allowed a more ambitious approach, when compared to discussions at the WTO. The reaffirmation of ILO labour standards as part of sustainable development efforts in recent EU trade agreements (section II.) is corroborated by a sequence of legal techniques which may progressively contribute to their respect and enforcement in practice. Those techniques pertain to the delimitation of protection levels (section III.), as well as the establishment of control mechanisms (section IV.). In its conclusions, the article raises discussions on future perspectives for social and sustainable development with respect to trade provisions.

II. Labour Standards Towards Sustainable Development The concept of sustainable development is at the core of the account taken for labour standards in trade agreements signed by the EU. The general premise is that trade and labour standards should be mutually supportive to be conducive to sustainable development. This is in line with the recently-adopted United Nations Sustainable Development Goals (SDGs)12 and their integrative approach based on the economic, social and environmental dimensions of sustainable development. The protection of labour rights in accordance with ILO standards is one of the objectives of the 2030 Agenda for Sustainable Development,13 which also recalls that “[i]nternational trade is an engine for inclusive economic growth and poverty reduction, and contributes to the promotion of sustainable development.”14 (SDGs, paragraph 68) While the social facet of sustainable development promoted by the SDGs goes beyond

11 The CARIFORUM (Caribbean Forum) comprises: Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Surinam, Trinidad and Tobago and the Dominican Republic. 12

GA Res. 70/1 of 25 September 2015.

13

See, for instance, ibid., paras. 27 and 67 as well as Goals 8.3, 8.5, 8.7, 8.8 and 8.b.

14

Ibid., para. 68.

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labour standards,15 sustainable development chapters in EU trade agreements have focused on that specific aspect,16 together with environmental objectives.17 For instance, the Preamble of the 2008 EU-CARIFORUM EPA18 highlights “the need [for the Parties] to promote economic and social progress for their people in a manner consistent with sustainable development by respecting basic labour rights in line with the commitments they have undertaken within the International Labour Organisation (…)”. In the 2010 Free Trade Agreement (FTA) with South Korea,19 the Parties also reaffirmed their desire to “strengthen the development and enforcement of labour and environmental laws and policies, promote basic workers’ rights and sustainable development and implement this Agreement in a manner consistent with these objectives” (Preamble). The Preamble of the trade agreement signed with Peru and Colombia in June 201220 also establishes the commitment of the Parties towards the objective of sustainable development, which includes the economic, social (respect for labour rights) and environmental aspects of such concept. A similar provision exists in Title VIII, Article 284, of the trade pillar of the Association agreement signed in June 2012 with Central American countries.21 A sustainable development frame for labour standards is equally found in the Comprehensive Economic and Trade Agreement (CETA) negotiated between Canada and the EU22 and signed in October 2016. CETA starts by reaffirming, in its fourth preambular paragraph, the commitment of the Parties “to promote sustainable 15 Relating more largely to human progress, dignity and development, the United Nations Sustainable Development Goals (SDGs) include, for instance, concerns with social inclusion, eradication of poverty and cultural diversity. On the latter, see notably ibid., paras. 8 and 36, as well as Goals 4.5, 4.7, 8.9, 11.4 and 12.b. 16 In certain cases, those chapters also refer to other sections of the agreement where additional social concerns have been addressed. 17

Environmental aspects in EU trade agreements are not addressed in this article.

EU, Economic Partnership Agreement between the CARIFORUM States, of the one part, and European Community and its Member States, of the other part, 15 October 2008, OJ 2008 L 289, 3. 18

19 Free Trade Agreement between the European Union and Its Member States, of the one part, and the Republic of Korea, of the other part, 6 October 2010, OJ 2011 L 127, 6.

Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part, 26 June 2012, OJ 2012 L 354, 3. 20

Agreement Establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other, 29 June 2012, OJ 2012 L 346. 21

Comprehensive Economic and Trade Agreement (CETA) between Canada, of the One Part, and the European Union and its Members States, of the Other Part, 30 October 2016, OJ 2017 L 11/23. 22

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development and the development of international trade in such a way as to contribute to sustainable development in its economic, social and environmental dimensions”. CETA chapter on Trade and Sustainable Development provides the context for two specific chapters, one on Trade and Labour and the other on Trade and Environment. It states that the Parties recognise that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development, and they reaffirm their commitment to promoting the development of international trade in such a way as to contribute to the objective of sustainable development, for the welfare of present and future generations.23

The scope adopted for the social part of the sustainable development chapter in this agreement remains, as in other EU agreements, focused on labour provisions. It is arguable, moreover, that the negotiating Parties to CETA, both Parties to the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CDCE),24 could have mentioned a more explicit cultural dimension of sustainable development in the CETA. Even though culture and cultural diversity have not been recognised as a distinct pillar of sustainable development in the SDGs, both the UNESCO Universal Declaration on Cultural Diversity (Article 3) and the CDCE (Article 13) acknowledge the contribution of culture to sustainable development and call for the inclusion of culture in sustainable development policies. The sustainable development chapter in the CETA could have been an opportunity for its negotiating parties to reaffirm this cultural dimension, particularly considering that these parties have been strong promoters of the CDCE and its implementation, and have included explicit references to the CDCE elsewhere in the agreement.25

23

Ibid., Chapter on Sustainable Development, Article 1, §1.

Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CDCE), 20 October 2005, UNTS 2440, 311. On this convention, see Lilian Richieri Hanania, Diversité culturelle et droit international du commerce (2009), as well as Lilian Richieri Hanania (ed.), Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2014). 24

See Lilian Richieri Hanania, Le débat commerce-culture à l’ère numérique: quelle application pour la Convention de l’UNESCO sur la diversité des expressions culturelles au sein de l’économie créative?, 29 April 2015, 12, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2600647 (accessed on 16 March 2016). 25

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In the EU-Singapore FTA,26 the negotiating parties also agreed on a chapter on Trade and Sustainable Development, which recalls their previous multilateral agreements on the matter. Among them, the 1996 Singapore WTO Ministerial Declaration and the 2008 ILO Declaration on Social Justice for a Fair Globalization (Article 13 (1)(1)) mentioned earlier. As in previous EU agreements, the parties to the EU-Singapore FTA also recognise economic, social and environmental development as “mutually reinforcing components of sustainable development” (Article 13 (18)(2)) and highlight their objective to strengthen trade and cooperation in a manner that foster sustainable development (Article 13 (1)(4)). Finally, the position paper presented by the EU to the US during negotiations of the Transatlantic Trade and Investment Partnership (TTIP) clearly expressed the EU intention to extend the EU experience with its recent trade agreements.27 The orientation to be adopted is still unknown, as well as whether the promotional approach traditionally employed by the EU might shape a more generalised legal model to encourage implementation of international labour standards through trade agreements.

Free Trade Agreement between the European Union and the Republic of Singapore, not yet signed, authentic text as of May 2015, available at: http://trade.ec.europa.eu/doclib/press/index.cfm? id=961 (accessed on 16 March 2016). The European Commission, pursuant to Art. 218(11) of the Treaty on the Functioning of the European Union (TFEU), requested that the Court of Justice assesses the compatibility of the EU-Singapore FTA with EU law and, more particularly, the division of competences between the European Union and the EU Member States in respect of this agreement – and whether the EU can conclude the Singapore FTA alone or if both the Union and the Member States will become parties to it. The Court’s assessment will have an impact on the conclusion of the CETA as well. See Court of Justice of the European Union, Request for an opinion submitted by the European Commission pursuant to Art. 218(11) TFEU (2016), Opinion 2/15, available at: http:// curia.europa.eu/juris/document/document.jsf?text=&docid=170868&pageIndex=0&doclang=EN &mode=lst&dir=&occ=first&part=1&cid=167194 (accessed on 28 March 2016). 26

27 See European Commission, Initial EU Position Paper, EU – US Transatlantic Trade and Investment Partnership, Trade and Sustainable Development, 16 July 2013, available at: http://trade.ec. europa.eu/doclib/docs/2013/july/tradoc_151626.pdf (accessed on 16 March 2016). A more detailed Position Paper was presented to the United States in May 2014 and was made public in January 2015: European Commission, Trade and Sustainable Development Chapter/Labour and Environment: EU Paper outlining key issues and elements for provisions in the TTIP, available at: http://trade.ec.europa. eu/doclib/docs/2015/january/tradoc_153024.pdf (accessed on 16 March 2016). It is, however, unclear whether this agreement will materialise, considering the strong opposition from France at the time of writing.

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III. Reinforcing Protection of International Labour Standards When addressing labour issues, EU trade agreements concluded since 2008 generally acknowledge the value of existing ILO treaties, incorporate them into the obligations bilaterally undertaken by the parties, and explicitly highlight main principles to be respected (subsection B.). In addition, through increased cooperation among trade partners, the agreements also call for implementation and ratification of those treaties (subsection A.).

A. Fostering Cooperation, Including Through International Assistance

In the examined EU trade agreements negotiated with developing countries, cooperation provisions aim at fostering capacity-building and technical assistance to contribute to a more effective enforcement of labour standards in those countries. The impact of those provisions will certainly depend on the financial and human means allocated to cooperation initiatives in this area, but the institutional framework and control mechanisms established in the agreements (section IV. infra) could play a major role in encouraging such allocation. Compliance with labour standards is indeed among the priorities envisaged in the EU-CARIFORUM EPA regarding development cooperation. The parties aim at the “[enhancement] of the technological and research capabilities of the CARIFORUM States so as to facilitate development of, and compliance with, (…) internationally recognised labour and environmental standards” (Article 8 (1)(v), emphasis added). In Title IV (Trade-related issues), a Chapter on ‘Social aspects’ contains a specific provision (Article 196) dealing with cooperation and the kind of support that the EU may provide to CARIFORUM partners – e.g. the exchange of information on policies and regulations, the formulation and strengthening of legislation, education, awarenessraising, training and capacity-building initiatives. Dialogue and cooperation among the parties is also one of the objectives of Title IX on Trade and Sustainable Development in the agreement with Peru and Colombia (Article 267 (2)(a)). Article 269 states that “[t]he Parties will dialogue and cooperate

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as appropriate on trade-related labour issues of mutual interest”.28 Article 267 (3) dismisses reciprocity among the parties, by admitting that implementation of obligations under this Title will depend on the capacities of each party, “in particular technical and financial capacities”, which relatively diminishes expectations on efforts to be conducted on the matter. Article 286 on Cooperation on Trade and Sustainable Development refers, moreover, to the Technical Assistance and Trade-Capacity Building Title of the agreement and foresees an exemplificative list of areas of mutual interest where cooperation activities should be developed. Those relating to the social aspect of sustainable development refer to the implementation of ILO Conventions; joint studies on the impacts of the agreement, as well as levels and standards of labour protection; and the “trade-related aspects of the ILO Decent Work Agenda,[29] including on the interlinkages between trade and productive employment, core labour standards, social protection and social dialogue”30. The reinforcement of such technical assistance could progressively respond to some of the issues recently identified by Colombian stakeholders regarding the practical implementation of labour provisions under the agreement.31 In the EU-Central America agreement, the parties commit to consulting and cooperating on trade-related labour matters (Article 286 (5)), but it is also expressly stated that their different levels of development are to be considered (Article 284 (3)). Article 302 refers to Title VI (Economic and Trade Development) of Part III of the agreement (Cooperation) for cooperation and technical assistance provisions. Under Article 42 (1) Part III, the Parties “agree to cooperate in order to promote employment and social protection through actions and programmes (…)”. ‘Cooperation and Technical Assistance on Trade and Sustainable Development’ (Article 63) should be implemented together with the provisions relating to cooperation in view of social cohesion, found in Title III (Social Development and Social Cohesion) of Part III. Among actions to be taken by the Parties, technical assistance, training and capacity-building in a series of areas are indicated. In the social field, it refers to On the first outcomes of such dialogue, see Sub-Committee on Trade and Sustainable Development, EU-Peru and Colombia Trade Agreement, Joint Statement, 6 February 2014, available at: http://trade.ec.europa.eu/doclib/docs/2014/february/tradoc_152200.pdf (accessed on 8 July 2016). 28

29 See ILO, Decent work agenda, available at: http://www.ilo.org/global/topics/decent-work/lang-en/index.htm (accessed on 17 March 2016). 30

EU-Peru and Colombia Trade Agreement (note 20), Article 286(k).

31

On such issues, see Marx/Lein/Brando (note 6), 599.

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“strengthening institutional frameworks, development and implementation of policies and programs regarding Fundamental Principles and Rights at Work (…) and the implementation and enforcement of [ILO] (…) conventions and labour laws, as agreed by the Parties” (Article 63 (2)(e)). Cooperation provisions are naturally less focused on technical assistance in EU agreements based on greater reciprocity between the parties. Annex 13 EU-South Korea FTA32, for instance, establishes a list of indicative areas of cooperation. It includes the exchange of opinions regarding the impact of the agreement on sustainable development; cooperation in international fora addressing issues of sustainable development (e.g. the WTO and the ILO); exchange of information; and cooperation on trade-related aspects of the ILO Decent Work Agenda. Dialogue and exchange of information regarding ratification and implementation of labour provisions have indeed been at the heart of the meetings held since 2012 by the Committee on Trade and Sustainable Development under the EU-South Korea FTA.33 In the first article of the Trade and Sustainable Development chapter of CETA, a series of general objectives to be pursued by the parties briefly announces the extent of their cooperation. They commit to cooperating at the international level, including within international organisations such as the WTO and the ILO. Moreover, not only should they engage in better coordination and integration of their labour, environment and trade policies, as well as in dialogue and cooperation, but they should also aim at enhancing the enforcement of domestic labour laws and respect for international agreements on the matter. Another objective, namely of improving participation of civil society in consultations and in the development of regulations and policies (inter alia through the creation of a ‘Civil Society Forum’), should also contribute to the attainment of the previous goals. 32 Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, 15 October 2009, OJ 2011 L127, 6. 33 See Trade and Sustainable Development Committee under the Korea-EU Free Trade Agreement, Joint statement to the Civil Society Forum on the outcomes of the 1st Trade and Sustainable Development Committee, 27 June 2012, available at: http://trade.ec.europa.eu/doclib/docs/2014/january/ tradoc_152047.pdf (accessed on 8 July 2016); Joint Statement of the 2nd Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA, 11 September 2013, available at: http://trade.ec.europa.eu/doclib/docs/2014/january/tradoc_152048.pdf (accessed on 8 July 2016); and Joint Statement of the 3rd Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA, 8 December 2014, available at: http://trade.ec.europa.eu/doclib/docs/2014/ december/tradoc_152981.pdf (accessed on 8 July 2016).

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The parties to the EU-Singapore agreement similarly “commit to consulting and cooperating as appropriate on trade-related labour and employment issues of mutual interest” (Article 13 (3)(1)), some of which are identified in a non-exhaustive list of areas established under Article 13 (4). Finally, the TTIP text is expected to follow the trend observed in the previous agreements regarding labour-related cooperation activities to be developed among the parties, and might even go further on this matter, by listing more detailed and specific bilateral cooperative actions regarding each fundamental principle and right at work recognised at the ILO.34

B. Reaffirming Protection Obligations

Protection obligations and principles regarding labour standards in the EU trade agreements examined herein may be assembled under three main aspects: the incorporation of ILO standards into the trade agreement provisions; the promotion of labour standards when investors from the parties operate; and the clarification of the linkage between trade and those standards – the ‘social clause’ issue. The following sub-sections exemplify and comment on each of these aspects.

1. The Incorporation of ILO Standards ILO obligations have been incorporated into EU trade agreements through provisions where the parties reiterate their commitment towards ILO treaties (mostly the ILO fundamental conventions), their objective to attain the main principles and obligations recognised in those treaties and their intention to promote ratification and enforcement of the latter. On the other hand, the agreements also specify that each party has the right to establish the level of protection it deems appropriate, provided it is consistent with internationally recognised rights recalled by the parties. Moreover, in case of trade agreements signed by the EU with developing countries, the examined trade agreeSee European Commission, Trade and Sustainable Development Chapter/Labour and Environment: EU Paper outlining key issues and elements for provisions in the TTIP (note 27). 34

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ments usually soften those provisions by recalling the differences in circumstances of each trade partner, which might understandably – yet regrettably – justify a different level of commitment and expectations among the parties. Such domestically-adapted perspective, combined with the fact that ILO standards are incorporated into each of those agreements through similar yet varied provisions, might raise coherence issues when implementing ILO conventions. Constant involvement of ILO representatives is therefore needed and foreseen – although not bindingly – under those agreements throughout implementation of the trade and sustainable development chapters (section IV. infra). In the CARIFORUM EPA, “[t]he Parties reaffirm their commitment to the internationally recognised core labour standards, as defined by the relevant ILO Conventions (…)” (Article 191 (1), Chapter on ‘Social aspects’). While the parties acknowledge their right to “establish their own social regulations and labour standards in line with their own social development priorities” (Article 192), they shall ensure that [their] own social and labour regulations and policies provide for and encourage high levels of social and labour standards consistent with the internationally recognised rights set forth in Article 191 and shall strive to continue to improve those laws and policies (Article 192).

In the same way, the South Korea FTA clarifies that the parties do not intend to harmonise their labour standards (Article 13 (1)(3)), but that they shall – more modestly – “seek to ensure” that their “laws and policies provide for and encourage high levels of environmental and labour protection, consistent with (…) internationally recognised standards” (Article 13(3)). The parties “commit to respecting, promoting and realising, in their laws and practices, the principles concerning the fundamental rights” enshrined in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (Article 13 (4)(3)), to “effectively implementing the ILO Conventions” they have ratified and to “mak[ing] continued and sustained efforts” to ratify other ILO Conventions (Article 13 (4)(3), last paragraph). International standards, guidelines and recommendations are also to be considered by the parties when preparing and implementing measures on this matter (Article 13 (8)), providing therefore space for advancements in fora such as the ILO to be progressively integrated into the parties’ actions in the future. In the FTA signed with Peru and Colombia, the provision recalling the right of the parties to regulate is accompanied by language referring to priorities and domestically-

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determined levels of protection (Article 268). The same provision establishes, nevertheless, the obligation to “strive to ensure that [their] relevant laws and policies provide for and encourage high levels of environmental and labour protection” (emphasis added). The Parties also commit to promoting and effectively implementing “internationally recognised core labour standards as contained in the fundamental Conventions of the International Labour Organisation” (Article 269 (3)) and recognise the importance of “scientific and technical information and relevant international standards, guidelines or recommendations” (Article 278). The agreement with Central American countries is very similar on this matter, recalling the right of the Parties to regulate and “set their own sustainable development priorities” (Article 285 (1)), and their commitment to “strive to ensure” high levels of protection “consistent with the internationally recognised standards and agreements” referred to in the treaty. Additional language in this same provision specifies that this should be “appropriate to its social, environmental and economic conditions”, further highlighting the differences among the parties regarding their level of development and, consequently, also their level of commitment on the matter. Despite that, under Article 286 (1), the parties recall their obligations as members of the ILO regarding the fundamental ILO Conventions, making an explicit reference to the 1998 ILO Declaration of Fundamental Principles and Rights at Work. Moreover, Article 292 mentions the importance of “relevant international standards, guidelines or recommendations” for the parties, and establishes a precautionary principle that is applicable to both the environmental and social aspects of sustainable development.35 Likewise, in CETA, Article 2 of the Trade and Labour chapter recognises the “right of each party to set its labour priorities, to establish its levels of labour protection and to adopt or modify its relevant laws and policies”, while each party shall also pursue “the goal of providing high levels of labour protection”. In the CETA Preamble, the parties clearly reaffirm their determination to “implement [the] Agreement in a manner consistent with the enhancement of the levels of labour and environmental protection and the enforcement of their labour and environmental laws and policies, building on their international commitments on labour and environment The agreement with Peru and Colombia seems to limit the application of a precautionary principle to environmental matters, by exclusively associating it with the 1992 Rio Declaration on Environment and Development in a footnote to Art. 278. Article 278 refers, nevertheless, not only to environmental concerns, but also to health and safety at work. 35

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matters” (CETA Preamble, emphasis added). While the Fundamental Principles and Rights at Work are already mandatory for CETA parties due to their membership to the ILO, the legal language used in CETA – stronger than in previous EU trade agreements – seems to go further when committing the parties to “ensuring” that their labour law and practices protect fundamental principles and rights at work (Article 3.1). Indeed, the language chosen by the parties in the CETA Trade and Labour chapter is in general mostly binding, independently from the level of commitment under the international instruments they refer to. Thus, the parties “shall ensure” that the objectives of the Decent Work Agenda in respect of health and safety at work, minimum employment standards and non-discrimination in working conditions, including of migrant workers, are domestically promoted (Article 3 (2)), and that relevant scientific and technical information, as well as international standards, guidelines and recommendations on safety and health are taken into account (Article 3 (3)). CETA also reaffirms commitments under the 2008 ILO Declaration on Social Justice for a Fair Globalization, as well as ILO Conventions ratified by the parties (Article 3 (4)). Finally, the recently negotiated EU-Singapore agreement also refers to “the principles of internationally recognised standards or agreements” (Article 13 (2)(1)). Once more, while it highlights that the parties have the right to establish their own levels of protection (Article 13 (2)) and do not intend to harmonise their labour standards “in light of the specific circumstances of each Party” (Article 13 (1)(4)), they commit to “improving” their laws and policies on the matter and to “striving” towards high levels of labour protection (Article 13 (2)(2)). Despite the weakly binding language of this provision, under Article 13 (3)(3) the parties explicitly “commit to respecting, promoting and effectively implementing the principles concerning the fundamental rights at work” as recognised in the 1998 ILO Declaration and commit to effectively implementing other ILO conventions to which they are parties. They are also expected to consider the ratification and effective implementation of other ILO conventions, “taking into account domestic circumstances” (Article 13 (3)(4)). International standards, guidelines and recommendations, “including the precautionary principle as enshrined in such international standards, guidelines or recommendations”, are also to be considered when the Parties prepare and implement measures with respect to health and safety at work (Article 13 (5)).

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Considering the positions adopted by the EU and the US at the multilateral level, and notably at the WTO, regarding the articulation between trade and labour standards, it may be expected that the relatively more ambitious approach adopted between the EU and Canada might also be applied to a future relationship between the EU and the US on this matter. Furthermore, per the above-mentioned EU position paper published in January 2015, the commitment of the TTIP parties regarding the ILO fundamental conventions and other United Nations instruments establishing social principles might lead to specific bilateral actions that would expectedly also reach third countries. These would include, for example, the promotion of worldwide implementation of the labour-related principles identified in TTIP and “adherence to, and ratification of, relevant international instruments”.36

2. The Promotion of Corporate Social Responsibility While the obligations reiterated in the EU trade agreements with respect to labour standards apply to the parties and target the parties’ actions, policies and regulations, certain provisions – yet modest – also attempt to have a more direct impact on investors from the parties. As part of the agreements’ sustainable development provisions, they should be exclusively subject to control mechanisms applicable to the latter (section IV infra). In the EU-South Korea and the EU-Central America agreements, corporate social responsibility is merely mentioned concisely, together with sustainable practices that should be promoted by the parties when fostering trade (Article 13 (6) EU-South Korea Agreement and Article 288 EU-Central America trade agreement, respectively).37 The trade agreement with Peru and Colombia also briefly states that “[the] Parties agree to promote best business practices related to corporate social responsibility” (Article 271 (3)). European Commission, Trade and Sustainable Development Chapter/Labour and Environment: EU Paper outlining key issues and elements for provisions in the TTIP (note 27). 36

The last sentence of Art. 13.6.2 EU-South Korea agreement reads: “The Parties shall strive to facilitate and promote trade in goods that contribute to sustainable development, including goods that are the subject of schemes such as fair and ethical trade and those involving corporate social responsibility and accountability” (emphasis added). Art. 288.2 (c) EU-Central America agreement contains very similar wording. 37

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The agreements with the CARIFORUM States, Canada and Singapore include more developed provisions on the matter, which might also be transposed into a future agreement with the US.38 In the EU-CARIFORUM EPA, the parties explicitly agreed that “[i]nvestors act in accordance with core labour standards as required by the International Labour Organization (ILO) Declaration on Fundamental Principles and Rights at Work, 1998, to which the EC Party and the Signatory CARIFORUM States are parties” (Article 72 (b) – see also Article 72 (c)). With less binding wording, CETA Parties “encourage enterprises operating within their territory or subject to their jurisdiction to respect internationally recognized standards and principles of corporate social responsibility, notably the OECD Guidelines for multinational enterprises and to pursue best practices of responsible business conduct” (CETA Preamble, emphasis added). The EU-Singapore FTA also explicitly refers to international guidelines on corporate social responsibility under Article 13 (11)(4). The language in this article remains though weakly compulsory, explicitly recognising that practices on this matter are adopted on a voluntary basis: When promoting trade and investment, the Parties should make special efforts to promote corporate social responsibility practices which are adopted on a voluntary basis. In this regard, each Party shall refer to relevant internationally accepted principles, standards or guidelines that it has agreed or acceded to, such as the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises, the UN Global Compact, and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (emphasis added).

3. The ‘Social Clause’ Issue Regarding the articulation between social norms and trade, the EU trade agreements examined herein seem to merely consolidate the understanding attained at the multilateral level by the trade partners involved. As observed in the examples below, the language employed in these provisions to account for the complexity of interests involved remains though hardly measurable, making any attempt to assess their effects quite difficult.39 European Commission, Trade and Sustainable Development Chapter/Labour and Environment: EU Paper outlining key issues and elements for provisions in the TTIP (note 27). 38

See, for instance, EU, Monitoring the Implementation & Results of the CARIFORUM – EU EPA AGREEMENT (EUROPEAID/129783/C/SER/multi – Lot 1: Studies and Technical assistance 39

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For instance, in a chapter on Commercial presence, the EU-CARIFORUM EPA introduces an obligation for the parties to “ensure that foreign direct investment is not encouraged by lowering domestic environmental, labour or occupational health and safety legislation and standards or by relaxing core labour standards (…)” (Article 73). Another provision in the same direction states the agreement of the parties not to encourage trade or foreign direct investment to enhance or maintain a competitive advantage by: (a) lowering the level of protection provided by domestic social and labour legislation; (b) derogating from, or failing to apply such legislation and standards (Article 193).

On the other hand, under Article 191 (4) “[t]he Parties agree that labour standards should not be used for protectionist trade purposes.” A similar intent is expressed among the objectives of the EU-South Korea FTA, in which Article 1 (1)(2)(h) states that foreign direct investment should be promoted without reducing labour standards and their enforcement and Article 13 (2)(2) recalls that “labour standards should not be used for protectionist trade purposes”, while the parties’ “comparative advantage should in no way be called into question.” It also recalls the mutually supportiveness approach adopted in the agreement regarding the different components of sustainable development, by stating that core labour standards and decent work favour “economic efficiency, innovation and productivity” and calls for “greater policy coherence between trade policies, on the one hand, and employment and labour policies on the other” (Article 13 (6)(1)). Failure to effectively enforce its labour laws “through a sustained or recurring course of action or inaction” or weakening or derogating from its labour standards “in a manner affecting trade or investment between the Parties” is also prohibited per the agreement (Article 13 (7)). The agreement with Peru and Colombia comprises in Articles 269 (5) and 271 (1) very similar provisions to Articles 13 (2)(2) and 13 (6)(1) South Korea FTA. Its Article 277 (1) also employs language similar to Article 193 CARIFORUM EPA and 13 (7) Korea FTA to prohibit the weakening or derogation of protection levels to encourage trade or investment. The agreement with Central American countries also rejects the use of labour standards for protectionist purposes, while recognising the comparative advantage a party may have on this issue (Article 286 (4)). Article 291 takes up provisions of previous agreements regarding the weakening or derogation of in all sectors), 57–58, available at: http://trade.ec.europa.eu/doclib/docs/2014/october/tradoc_152 824.pdf (accessed on 8 July 2016).

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labour standards for trade or investment purposes, by stating that “it is inappropriate to encourage trade or investment by lowering the levels of protection afforded in domestic environmental and labour laws” (Article 291 (1), emphasis added). In any case, though, “[a] Party shall not fail to effectively enforce its labour and environmental legislation in a manner affecting trade or investment between the Parties” (Article 291 (3)). CETA also reflects the position expressed by its parties at the multilateral level on this subject by equally recognising that “it is inappropriate to encourage trade or investment by lowering the levels of protection embodied in domestic labour law and standards” (Article 4 (1)). However, a binding obligation exists for the parties to maintain the full applicability of their labour law (Article 4 (2)) and to effectively enforce the latter (Article 4 (3)). The objective is to guarantee a level playing field in terms of trade and investment conditions among the parties. Finally, the EU-Singapore agreement also recalls the trade and labour standards linkage previously enunciated at the multilateral level, by stating that [t]he Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in domestic labour and environment laws. At the same time, the parties stress that environmental and labour standards should not be used for protectionist trade purposes. (Article 13(1)(3)).

Article 13 (3)(5) states, moreover, that “the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage” and, under Article 13 (12), the parties commit not to derogating from their labour laws or failing to effectively enforce those laws “through a sustained or recurring course of action or inaction, in a manner affecting trade or investment between the Parties.” The EU position paper on the TTIP reflects the EU intention to transpose these same elements to an agreement to be concluded with the United States.40 In order to contribute to the effective enforcement of the provisions analysed above, the examined EU trade agreements foresee a certain number of control and supervision mechanisms. Such mechanisms add to procedures existing at the international level to foster compliance with ILO labour standards. The following section addresses this specific component of the EU trade agreements provisions on sustainable development. European Commission, Trade and Sustainable Development Chapter/Labour and Environment: EU Paper outlining key issues and elements for provisions in the TTIP (note 27). 40

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IV. Controlling Enforcement of International Labour Standards The ILO Constitution41 offers a comprehensive framework for promoting compliance with conventions, recommendations and declarations adopted under its auspices, which has proven to be relatively effective despite being strongly based on political pressure from other Members and workers’ and employers’ representatives, as well as on technical assistance and capacity-building provided by the organisation. As mentioned earlier and in accordance with a rather ‘promotional approach’, compliance may be ultimately, yet progressively, attained through dialogue procedures, cooperation and involvement of civil society, aspects which are strongly pursued in the EU agreements examined in this article. The following subsection A succinctly presents the ILO framework, to which the parties in the examined EU trade agreements have added specific control or follow-up mechanisms to promote enforcement of labour standards. Those mechanisms are reviewed in subsection B. A. ILO Compliance Mechanisms

In accordance with the pacta sunt servanda principle in Public International Law,42 once a convention is ratified by an ILO Member, the latter “will take such action as may be necessary to make effective the provisions of such Convention” (Article 19 (5)(d) ILO Constitution). Reports on ratified Conventions and their effects are also due by each Member pursuant to Article 22 ILO Constitution. Employers’ and workers’ organisations may comment on the reports. Moreover, a Committee of Experts examines the reports and provide impartial and technical legal assessment of the application of the international labour standards concerned, by making either observations (comments on fundamental questions that have been raised, which are published in the Committee’s annual report) or direct requests (technical questions or demands for further information, communicated to the concerned governments). ILO, Constitution of the International Labour Organization, available at: http://www.ilo.org/ dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO (accessed on 17 March 2016). 41

42 Art. 26 1969 Vienna Convention on the Law of Treaties states this principle when affirming that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”, Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT).

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The Committee’s report is then submitted to the International Labour Conference for examination by the tripartite Committee on the Application of Standards (CAS), which provides a more political analysis. The CAS may raise discussions, provide recommendations or invite ILO missions or technical assistance to remedy an application problem that has been identified.43 In addition, three other special supervisory mechanisms testify to the originality of the ILO system.44 The first one is the possibility of a ‘representation of non-observance’ by an association of employers or workers against a member that has failed to comply with a convention it has ratified. This may trigger dialogue between that member and the concerned associations (Article 24 ILO Constitution) and even the publication of such representation to the other ILO members if no satisfactory response is provided by the member according to the ILO Governing Body (Article 25). The second refers to ‘complaints of non-observance’, presented by a member against another member that has not given effect to a convention they have both ratified (Article 26 ILO Constitution). In this latter case, a Commission of Inquiry may be appointed to vet the issue and provide a report containing its findings, recommendations of steps to be taken, as well as the timeframe for setting them up (Article 28 ILO Constitution). The Commission’s report is published and, within three months, the members designated in the report shall indicate whether they accept the recommendations of the Commission or if they propose to submit the issue to the International Court of Justice (ICJ) (Article 29). Notwithstanding the use of the non-compulsory term ‘recommendations’, complementary mechanisms are foreseen in case a member does not respect the recommendations made by the Commission or the ICJ: The Governing Body may recommend to the ILO Conference “such action as it may deem wise and expedient to secure compliance therewith” (Article 33 ILO Constitution). 43 Regarding recommendations adopted at the ILO, which per se should not contain binding obligations for the Members, the latter are still obliged to: “report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given, or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them (Article 19.6 (d) of the ILO Constitution)”. 44 ILO, Applying and promoting International Labour Standards, available at: http://www.ilo.org/ global/standards/applying-and-promoting-international-labour-standards/lang--en/index.htm (accessed on 17 March 2016).

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A third special supervisory procedure is conducted by the Committee on Freedom of Association (CFA), created in 1951 to address complaints by workers’ or employers’ organisations against a member, even if the latter has not ratified the relevant ILO conventions on freedom of association. If the CFA finds that a violation has occurred, the questioned member is required to report on the implementation of the CFA’s recommendations. The results of the CFA’s work on over 3,000 cases testify to the effectiveness of this monitoring procedure.45 The complementary bilateral and regional mechanisms established under the EU trade agreements seem in a certain sense to be inspired by the ILO experience, not only regarding the possibility for workers’, employers’ or civil society representatives generally to participate and raise issues relating to the implementation of labour standards, but also in respect of the type of non-binding – but still promising in terms of effectiveness – monitoring mechanisms created.

B. Complementary Mechanisms in EU Trade Agreements

In the Trade and Labour chapters or sections of the trade agreements examined herein, the EU has complemented the ILO procedures outlined above with specific obligations from the trade partners and mechanisms to “promote compliance with and … effectively enforce [their] labour law” (Article 5 (1) CETA). Since ILO labour standards have been incorporated into the EU agreements, those mechanisms offer additional means to foster compliance with international standards and, in that sense, ultimately contribute to their strengthening. They have been grouped below into four categories: the assessment by the parties of the implementation of labour standards; the transparency and openness towards civil society; the emphasis put on cooperation and international consultation for problem solving; and specifically-established dispute settlement mechanisms. In January 2015, the EU announced its intention to follow its previous experience in each of those areas when negotiating provisions on sustainable development in a future agreement with the US.46 45 ILO, Committee on Freedom of Association, available at: http://www.ilo.org/global/standards/ applying-and-promoting-international-labour-standards/committee-on-freedom-of-association/lang-en/index.htm (accessed on 8 November 2016).

European Commission, Trade and Sustainable Development Chapter/Labour and Environment: EU Paper outlining key issues and elements for provisions in the TTIP (note 27), 12, 14. 46

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1. Assessment of Implementation Assessment of the impact of EU trade agreements on the implementation of labour standards is conducted through the institutional framework established by each agreement and notably within meetings of joint bodies specifically devoted to trade and sustainable development. The EU-South Korea FTA foresees “trade-related sustainability impact assessments” as part of the commitment of the parties “to reviewing, monitoring and assessing the impact of the implementation of [the] Agreement on sustainable development, including the promotion of decent work” (Article 13 (10)). Meetings of the Committee on Trade and Sustainable Development under this FTA have been held since 2012 and have been dedicated to the exchange of information on the ratification of ILO Conventions, improvements of domestic labour laws and procedures, as well as Corporate Social Responsibility (CSR) initiatives.47 Likewise, the agreement with Peru and Colombia establishes an obligation to “review, monitor and assess the impact of the implementation of [the] Agreement on labour and environment”, but highlights each party’s responsibility and decision power on the matter by adding “as it deems appropriate, through its respective domestic and participative processes” (Article 279). In the agreement with Central America, the Parties commit to jointly assessing the impact of the agreement on sustainable development (Article 293). Similarly, the EU-Singapore agreement foresees joint or independent assessment of the impact of the FTA on sustainable development in its Article 13 (14). CETA is more detailed on the matter. It defines under Article 8 specific control measures allowing the parties to assess the implementation of the obligations undertaken in the Trade and Labour chapter. As in the other agreements, a committee is created to review progress and effectiveness of those obligations. But more interestingly, the language used in CETA goes beyond the above-referred agreements, by also 47 See Trade and Sustainable Development Committee under the Korea-EU Free Trade Agreement, Joint statement to the Civil Society Forum on the outcomes of the 1st Trade and Sustainable Development Committee, 27 June 2012, available at: http://trade.ec.europa.eu/doclib/docs/2014/january/ tradoc_152047.pdf (accessed on 8 July 2016); Joint Statement of the 2nd Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA, 11 September 2013, available at: http://trade.ec.europa.eu/doclib/docs/2014/january/tradoc_152048.pdf (accessed on 8 July 2016); and Joint Statement of the 3rd Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA, 8 December 2014, available at: http://trade.ec.europa.eu/doclib/docs/2014/ december/tradoc_152981.pdf (accessed on 8 July 2016).

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addressing the effectiveness of domestic proceedings. In fact, parties shall ensure that effective and appropriate action against infringement of labour laws is domestically available. To this end, the trade agreement obligations require that domestic proceedings “are not unnecessarily complicated or prohibitively costly, do not entail unreasonable time limits or unwarranted delays, provide injunctive relief, where appropriate, and are fair and equitable” (Article 5 (2)). Public awareness at the domestic level regarding those enforcement and compliance procedures is also required (Article 6 (2)).

2. Involvement of Civil Society and Transparency Transparency, openness to public consultation and civil society participation are a common feature of the sustainable development provisions in the examined EU trade agreements. Firstly, this appropriately reproduces the vital involvement of workers’ and employers’ organisations within the ILO tripartite operation and their intrinsic function in promoting and controlling compliance. Secondly, it reflects the unquestionable role and contribution of lato sensu civil society in subject matters relating to sustainable development, which requires greater coordination and coherence among policies, regulations, as well as concrete actions adopted in different fields.48 An effective articulation of civil society efforts both at the ILO level and in the framework of trade agreements concluded with the EU should unquestionably contribute to such coherence and to compliance with labour standards at the national level.49 The EU-South Korea FTA thus highlights the need for transparency, public consultation and participative processes and institutions (Articles 13 (9) and following) and details institutional mechanisms to foster the implementation of the sustainable development chapter, including regarding its obligations in the social and labour fields. Article 13 (12) prescribes the establishment of contact points and multistakeholder domestic advisory groups, as well as the involvement of the Committee For a reflection on this subject applied to cultural diversity matters, see Lilian Richieri Hanania, The UNESCO Convention on the Diversity of Cultural Expressions as a Coordination Framework to promote Regulatory Coherence in the Creative Economy, The International Journal of Cultural Policy 22 (2015), 11, 12. 48

Through their influence on national civil society actions, EU trade agreements have been qualified as “institutionalized channels of policy diffusion through learning”. See Postnikov/Bastiaens (note 10), 927 et seq. 49

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on Trade and Sustainable Development established by the agreement. A ‘Civil Society Forum’ has also been foreseen “to conduct a dialogue encompassing sustainable development aspects of trade relations between the Parties” (Article 13.13). Per the agreement with Peru and Colombia, a Sub-committee on Trade and Sustainable Development shall also “promote transparency and public participation in its work” (Article 280 (7)). Domestic consultation mechanisms are also prescribed (Article 281) and Article 282 foresees increased dialogue between the Sub-committee and civil society.50 Advisory groups able to express their views and make recommendations to the parties are also foreseen under the agreement signed with Central American countries (Article 294 (4) and (5)). A bi-regional ‘Civil Society Dialogue Forum’ is also created (Article 295) and may provide its opinions during meetings of the Board on Trade and Sustainable Development, to foster discussions on the effectiveness of the Trade and Sustainable Development Title of the agreement (Article 295 (2)). CETA also responds to the need for domestic public debate around policies relating to labour standards (Article 6 (1)) and domestic advisory groups are to be formed and consulted (Article 8 (3)). The parties have, indeed, an obligation to consult a domestic labour or sustainable development advisory group, allowing for a large civil society representation. Moreover, the parties have an obligation to “give consideration” to communications received from the public, including when they address implementation concerns. Finally, the parties in the EU-Singapore agreement express their intention to allow for open participation in the adoption of measures of general application to protect labour conditions when they affect trade and investment, by assuming an obligation to develop, introduce and administer such measures “in a transparent manner and with due notice and opportunities for interested persons to submit their views” (Article 13 (13)) – even if this is to be put into practice “in accordance with its domestic law and Chapter Fourteen (Transparency)” of the agreement. Furthermore, each meeting of the Board on Trade and Sustainable Development, to be created by the parties, shall comprise a public session permitting widely represented stakeholders to exchange on the implementation of the Trade and Sustainable Development chapter

50 Even if such dialogue still needs to be improved in practice, as claimed in Marx/Lein/Brando (note 6), 600 et seq.

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(Article 13 (15)(4)). Domestic advisory groups are also to be consulted by the parties (Article 13 (15)(5)) under the EU-Singapore agreement.

3. Cooperation and Problem-Solving Through International Consultation Complementarity and search for coherence with work conducted at the ILO regarding international labour standards appear in the examined EU trade agreements through bridges established with that organisation, allowing for ILO advice in discussions among the parties. Under the EU-CARIFORUM EPA, for example, the parties may have recourse to the ILO (Article 195 (3)) when having trouble implementing the Chapter on Social aspects, or they may consult with each other (Article 195 (2)). Consultations are also expected under the EU-South Korea FTA in case a matter arises among the parties (Article 13 (14)(2)). A mutually satisfactory resolution is to be found by the parties and it should “[reflect] the activities of the ILO (…) so as to promote greater cooperation and coherence between the work of the Parties and [this organization]”. Advice from the ILO is also to be sought “where relevant” and “subject to the agreement of the Parties” (Article 13 (14)(2)).51 The Committee on Trade and Sustainable Development may also be convened for further discussion (Article 13 (14)(3)). Under the agreement with Peru and Colombia, intergovernmental consultation is the first step to attain a mutually satisfactory resolution of a matter (Article 283 (1) and (2)). This may imply seeking the opinion of any person, organisation or body, including the ILO. The Sub-committee on Trade and Sustainable Development may also be convened to address the issue (Article 283 (3)), having, among its objectives, to promote dialogue, oversee the implementation of the Trade and Sustainable Development Title and find mutually satisfactory solutions to difficulties encountered by the parties (Article 280). An intriguing clarification regarding the extent to which the parties may influence each other’s domestic procedures and mechanisms is stated in Article 277 (4) of this agreement: “[n]othing in this Title shall be construed to

The ILO has participated in meetings of the Committee on Trade and Sustainable Development under this agreement. See notably Trade and Sustainable Development Committee under the KoreaEU Free Trade Agreement, Joint Statement of the 3rd Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA (note 47). 51

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empower the authorities of a Party to undertake labour and environmental law enforcement activities in the territory of another Party”. A very similar clarification exists in Article 291 (4) of the agreement with Central American countries. In the latter, a Board on Trade and Sustainable Development (Article 294 (2)) should also oversee the implementation of the sustainable development provisions, but the powers given to this body seem narrower than those conferred to the equivalent joint governmental bodies established under other examined EU trade agreements. Moreover, as seen in previous agreements, a matter under the Trade and Sustainable Development Title is firstly to be dealt with via consultations among the parties, in accordance with Article 296. An interesting specification appears in paragraph 2 of the latter provision, which states that “[d]uring consultations, special attention shall be given to the particular problems and interests of developing country Parties.” Advice and assistance from the ILO, as the parties may deem appropriate, is also available (Article 296 (2)) and in the event a party considers, after consultations, that further discussion is still needed, the matter is referred to the Board on Trade and Sustainable Development, “unless the consulting Parties agree otherwise” (Article 296 (3)). The parties involved may therefore agree not to submit the matter to the Board. If the matter is referred to the latter, the Board may adopt, again by agreement between the parties, “decisions or recommendations” (Article 294 (3)). Likewise, in the event a matter arises among CETA parties regarding the Trade and Labour chapter, a governmental consultation procedure is foreseen under Article 9. The ILO, the domestic advisory groups or any other person, organisation or group agreed by the parties may participate in the consultation procedure. Solutions encountered are made publicly available, once more fostering transparency in the implementation of the trade and labour obligations. Coherence and cooperation is also to be sought by the parties with the work developed by the ILO and one may expect, based on the experience with joint meetings under the EU-South Korea FTA, that this could be pursued through significant involvement of the ILO in meetings held by the parties. Finally, a contact point in each party of the EU-Singapore FTA is to be created for the implementation of the Trade and Sustainable Development chapter (Article 13 (15)(1)), as well as a Board on Trade and Sustainable Development (Article 13 (15) (2)). In case of disagreement among the parties, government consultations are the

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first step to find a mutually satisfactory solution (Article 13 (16)), but to foster greater cooperation and coherence with the ILO, the activities of the latter should be considered in that process (Article 13 (16)(3)). The Board on Trade and Sustainable Development may also be convened to examine the matter under discussion (Article 13 (16)(4)).

4. Specific Dispute Settlement Mechanisms Dispute resolution provisions specific to trade and sustainable development issues respond to the need for expert assessment and for coherence when implementing international labour standards. Despite the legally non-binding character of the outcomes foreseen in those provisions, previous ILO experience in the same field allows to expect a relatively effective, yet progressive, contribution to compliance with those standards, based on political pressure. Under the EU-CARIFORUM EPA, in the event a matter has not been satisfactorily resolved through consultations, a party may request the establishment of a Committee of Experts, which is mandated to issue a report on the matter and provide it to the CARIFORUM-EC Consultative Committee (Articles 195 (5) and 195 (6)). A Panel of Experts is also foreseen in the EU-South Korea FTA (Article 13 (15)) and the parties “shall make their best efforts to accommodate advice or recommendations of the Panel of Experts” (Article 13 (15)(2)). While the result of the panel expertise is non-binding for the parties, implementation of its recommendations is to be monitored by the Committee on Trade and Sustainable Development created under the FTA. Moreover, matters raised under the sustainable development chapter of the agreement are to be dealt with through the mechanisms prescribed in that chapter (Article 13 (16)), the general dispute settlement mechanisms established under the FTA remaining inapplicable to those issues. The exclusive or specific character of those mechanisms is also found in the EU trade agreements that followed, as the agreement with Peru and Colombia (Article 285 (5)), with Central America (Article 284 (4)), CETA (Article 11) and the EU-Singapore FTA (Article 13 (16)(1)). The agreement with Peru and Colombia also establishes a procedure based on the establishment of a Group of Experts in case governmental consultations do not work

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(Article 284 (1)). The Group has a very precise obligation of determining “whether a Party has fulfilled its obligations under [the Trade and Sustainable Development] Title” (Article 284 (2)), even though its reports are limited to non-binding recommendations (Article 285). The agreement is also more detailed than the previous EUSouth Korea FTA regarding implementation and monitoring of those recommendations: the party concerned in a dispute under the EU-Peru-Colombia agreement has the obligation to “inform the Sub-committee on Trade and Sustainable Development of its intentions as regards the recommendations of the Group of Experts, including the presentation of an action plan”. Monitoring by the Sub-committee is to be conducted based on such plan (Article 285 (4)). In the agreement with Central America, and unless the consulting parties differently agree, the establishment of a Panel of Experts may be required by a party also in case the parties decided not to submit a matter to the Board. The Panel is “to examine whether there is a failure by a Party to comply with the obligations set out under [inter alia the ILO fundamental conventions and obligations regarding protection levels under Article 291],” make non-binding recommendations and, when matters refer to the enforcement of domestic legislation, to “determine if there is a sustained or recurring failure by a Party to effectively implement its obligations” (Article 299 (3)). The difference in development level among the parties is once more stressed at this stage of the procedure, Article 300 (3) stating that “[t]he Panel's recommendations shall take into account the particular socio-economic situation of the Parties.” The latter have an obligation to “endeavour to discuss appropriate measures to be implemented” (emphasis added) based on the Panel’s report and, as in the agreement with Peru and Colombia, the party concerned by the recommendations informs the Board on its intentions and may, “where appropriate”, present an action plan, which will be then monitored by the Board (Article 301 (3)). Under CETA, a party may request the establishment of a Panel of Experts in accordance with the procedure under Article 10. The panel is mandated to examine the matter in the light of the Trade and Labour chapter and to make recommendations, which shall be submitted to discussion between the parties and to decision on a mutually satisfying action plan. The parties’ advisory groups and the Civil Society Forum are also to be involved in this dispute resolution phase. Finally, at any time the parties may use other non-binding dispute settlement mechanisms, e.g. good offices, conciliation or mediation (Article 11).

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The EU-Singapore FTA also foresees the possibility of establishing a Panel of Experts (Article 13 (17)) to solve a dispute. After analysing the issue and requesting advice as appropriate from the ILO (paragraph 7), the Panel provides the parties with a report containing recommendations. Based on such report, the parties are requested to discuss the appropriate measures to be adopted and the concerned party then decides on actions and measures to be implemented. They shall also respect a specific timeframe for their decision: It should be made within three months of the report submission by the Panel. The Board is responsible for monitoring the implementation of the report and stakeholders may bring up observations to it (Article 13 (17) (9)).

V. Conclusion This article offers a comprehensive and systematised view of the way trade agreements concluded by the EU since 2008 incorporate and attempt to strengthen existing international labour standards. Despite differences observed in the agreements examined above, in each of them the EU has managed to bring into a trade framework ‘social dumping’ concerns which have been kept outside the WTO arena. Based on the difficulties in conveying such considerations into the multilateral WTO trade system, the incorporation of ILO labour standards into the EU agreements turns out to be significant. Moreover, the additional control and enforcement procedures introduced in those regional and bilateral trade agreements regarding labour standards might prove useful towards more effective compliance with ILO labour standards. Admittedly, results from the use of those techniques are mostly still to be observed, since the agreements examined here are very recent (some still pending ratification) and practical implementation depend significantly on the political will of the parties and their civil societies’ concrete means. However, existing cooperation experience in joint meetings of the Committee on trade and sustainable development under the agreements with South Korea, as well as Peru and Colombia, seems promising. Furthermore, contemplating such standards within the framework of the sustainable development chapter of those agreements is not irrelevant in terms of consolidation of the social dimension of that concept. By promoting those standards in its trade relationships, the EU contributes more generally to crystallising this facet of the

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social dimension of sustainable development at the international level. From this latter perspective, the EU is contributing to the pursuit of the UN Sustainable Development Goals, which, as indicated above, include labour standards and issues among their targets. A few prospective questions may result from the analysis of the EU trade agreements developed above. First, by signing trade agreements with partners in diverse geographical areas and with varied national circumstances, might WTO Members such as the EU gradually contribute to a more general acceptance of the inclusion of ‘social clauses’ in trade agreements? Indeed, through progressive spreading of those standards and concepts related to them, it is defendable that the EU might eventually increase adherence to those standards in a trade context and reduce reluctance to them, also at the multilateral level. Moreover, to which extent might such possible broader acceptance contribute ultimately to the consolidation and reinforcement of the social pillar of sustainable development within the international trade system? Might the increasing acknowledgment at the international level (including in bilateral and regional trade treaties) of this specific facet of social development, regarding international labour standards, affect the interpretation of the objective of sustainable development already embodied in WTO law? Evolutionary interpretation has indeed been employed by the WTO judge several times and the concept of ‘sustainable development’ seems to be particularly suitable for recourse to that technique.52

52 See Steven Van Uytsel, The CDCE and the WTO – in search for a meaningful role after ChinaAudiovisuals, in: Lilian Richieri Hanania (ed.), Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2014), 40, 43 et seq.

GERMAN PRACTICE

In Germany International Law may be Honoured in the Breach: The Federal Constitutional Court Gives the Legislature Carte Blanche to Override Treaties THOMAS GIEGERICH

I. Introduction By order of 15 December 2015, the Federal Constitutional Court (FCC) ruled that the German constitution (Basic Law, BL)1 allows the legislature to override binding international treaties at will.2 This short-sighted order exposes the alleged friendliness of the BL towards international law as a lie and constitutes a major

An earlier German version of this note (Völkerrechtsfreundlichkeit ‘light’ – Viel Schatten und wenig Licht im BVerfG-Beschluss zum Treaty Override) is available at: http://jean-monnet-saar.eu/wpcontent/uploads/2013/12/TreatyOverride_TG.pdf (accessed on 17 January 2017). Univ.-Prof. Dr. iur., LL.M. (Univ. of Virginia), Chair for European Law, International Law and Public Law and Director, Europa-Institut, Saarland University. 1 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 (BL). 2 Federal Constitutional Court (FCC, Bundesverfassungsgericht), 2 BvL 1/12 of 15 December 2015, available (in German) at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/ 2015/12/ls20151215_2bvl000112.html (accessed on 13 October 2016). See the FCC’s Press Release No. 9/2016 of 12 February 2016, Treaty Overrides by National Statutory Law are Permissible Under the Constitution, available at: http://www.bundesverfassungsgericht.de/SharedDocs/Presse mitteilungen/EN/2016/bvg16-009.html (accessed on 16 November 2016). Translations of passages of this order are by the author. See also the case notes by Klaus Ferdinand Gärditz, Treaty Override, American Journal of International Law 110 (2016), 339, and Walter Frenz, Deutsches Verwaltungsblatt 2016, 509 (who agree with the DTA order) as well as by Michael Sachs, Juristische Schulung 2016, 571, Ulrich Fastenrath, Anmerkung, Juristen Zeitung 2016, 636, and Mehrdad Payandeh, Grenzen der Völkerrechtsfreundlichkeit: Der Treaty Override-Beschluss des BVerfG, Neue Juristische Wochenschrift 2016, 1279 (who criticises it).

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setback for the rule ‘pacta sunt servanda’ – no less than the Grundnorm of the international legal order.3

II. Facts and Procedural Basis The order is about the 1985 double taxation agreement (DTA) with Turkey to which the German Parliament had consented in 1989 by enacting the requisite federal law pursuant to Article 59 (2)(1) BL.4 The DTA, which was meanwhile replaced by a new one, provided that income derived from employment in Turkey was not subject to income tax in Germany. Later, the Tax Amendment Law 2003 (TAL 2003) made the exemption from German income tax in this and other DTAs contingent on a further condition not included in the DTA: With the entry into force of the TAL 2003, taxpayers benefitted from the exemption only if they could show that the State entitled to tax the earned income had either waived its right of taxation or that the taxpayer had actually paid the income tax imposed by that State. The new condition was intended to promote tax compliance vis-à-vis the other parties to the various DTAs. The government had introduced the TAL 2003 bill with an explanatory memorandum which opined that the legislature could override a law consenting to a treaty in the sense of Article 59 (2)(1) BL by a later law, provided that its intention to effect such override was made clear. A taxpayer with income derived from employment in Turkey who could not produce the evidence required under the TAL 2003 was fully taxed. He brought an action in the competent tax court but lost. On appeal, the Federal Supreme Tax Court (FSTC) wanted to side with the taxpayer, concluding that the TAL 2003 was unconstitutional because it effected an override of the DTA. The FSTC therefore made a reference to the FCC pursuant to Article 100 (1) BL.5 Under this provision, 3

Hans Kelsen, Reine Rechtslehre (1934), 129 et seq.

Art. 59 (2)(1) BL: “Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law”, quoted from the translation published by the German Federal Ministry of Justice and Consumer Protection, available at: https://www.gesetzeim-internet.de/englisch_gg/englisch_gg.html#p0274 (accessed on 13 October 2016). 4

5 Federal Supreme Tax Court (FSTC), Order I R 66/09 of 10 January 2012, reprinted in: Juristen Zeitung 67 (2012), 903 with a negative annotation by Christian Thiemann.

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only the FCC has the power to declare an act of parliament void for unconstitutionality. The FSTC’s reference order which overruled this court’s settled case law permitting treaty overrides was heavily criticised by most commentators.6 Unfortunately, the FSTC’s belated attempt to take up the cudgels for international law badly backfired: It produced an FCC decision expressly approving the legislature’s power to disregard the rule ‘pacta sunt servanda’. In Germany and many other States, treaty overrides mostly affect DTAs. It is to be hoped that the German legislature does not feel encouraged by the DTA order to extend that practice to other kinds of treaties.

III. The Decision’s Shaky Ground in International Law At the outset, the FCC left the question unanswered whether the FSTC was correct in assuming that the TAL 2003 was incompatible with the DTA. That proposition – which the FCC considered as plausible – had expressly been rejected by the federal government. In its written observations the latter argued that the TAL 2003 did no more than concretise a general exception against the abuse of rights which was an unwritten part of all DTAs. This proposition was certainly at least as plausible. With regard to the specific DTA with Turkey, it would have been possible to find out whether the Turkish government agreed with the interpretation proposed by the federal government, all the more since that interpretation was in accordance with Turkish interests. If so, the TAL 2003 would have turned out to be perfectly compatible with the DTA applicable in the instant case. However, no one cared to find out. In other words, the FCC may well have needlessly compromised Germany’s international reputation as a treaty-abiding nation based on the FSTC’s potential misinterpretation of the DTA. This approach is not only incompatible with the FCC’s selfproclaimed special responsibility to prevent Germany from incurring international responsibility in consequence of any misinterpretation of international law by GerRobert Frau/Matthias Trinks, Zum Spannungsverhältnis von Völker- und Verfassungsrecht, Die öffentliche Verwaltung 2013, 228; Marcel Krumm, Legislativer Vertragsbruch im demokratischen Rechtsstaat, Archiv des öffentlichen Rechts 138 (2013), 363; Alexander Kees, Bricht Völkerrecht Landesrecht?, Der Staat 54 (2015), 63. See, however, the positive reactions by Dietrich Rauschning, Verfassungspflicht zur Befolgung völkerrechtlicher Verträge, in: Marten Breuer et al. (eds.), Der Staat im Recht: Festschrift für Eckart Klein (2013), 287, and Heiko Sauer, Staatsrecht III (4th ed. 2016), 106 et seq. (who welcomes the outcome but criticises the FSTC’s arguments). 6

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man courts.7 It is also irresponsible because the rule ‘pacta sunt servanda’ is too fundamental for the international legal order to be challenged for no good reason.

IV. The FCC’s Vacillation Between the Nazi Reichskonkordat and the Communist Land Reform On the aforementioned shaky ground in international law the FCC felt obliged to answer the question whether the BL prohibits the enactment of a federal law which is incompatible with an earlier international treaty that was concluded with the consent of the federal legislature in the form of a federal law pursuant to Article 59 (2)(1) BL. Three previous FCC decisions provided conflicting clues for the right answer: the judgment on the Nazi Reichskonkordat of 19578 and the order on the Communist Land Reform in the former Soviet occupation zone9 as well as the order in the Görgülü case of 2004.10 A. The Konkordat Judgment of 1957: Foundation of the Post-War Foreign Relations Law

1. Content and History of the Konkordat Judgment In the Konkordat judgment, the FCC held that the friendliness of the BL towards international law stopped short of ensuring compliance with existing treaties by requiring the legislature’s adherence to the corresponding national law. In difference to the general rules of international law which took precedence over the laws pursuant to Article 25 BL,11 treaty commitments did not enjoy such precedence. Accord-

7

FCC, BVerfGE 111, 307, 328 (Görgülü).

8

Id., BVerfGE 6, 309 (Konkordat).

9

Id., BVerfGE 112, 1 (CLR).

10

Id., Görgülü (note 7).

Art. 25 BL: “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” (See supra, note 4.) These “general rules of international law” comprise the rules of universal 11

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ingly, the legislature retained the power to change the law despite contrary treaty commitments, unless the latter codified general rules of international law in the sense of Article 25 BL.12 Placing that passage of the 1957 judgment in its proper context, one needs to take the historical background into consideration: The Reichskonkordat with the Holy See had been concluded by the Hitler dictatorship without any involvement of parliament. It continued to be in force for the Federal Republic of Germany, which was identical with the Reich as a legal person. The BL had, however, transferred the competence for fulfilling the treaty commitments arising from the Konkordat to the constituent States (Länder). The FCC was called upon to decide whether the BL imposed an obligation on the legislature of one constituent State vis-à-vis the Federation to abide by the Konkordat. This question was answered in the negative. There are thus a number of important distinctions between the old Konkordat case and the current DTA case: The parliamentary legislator enacting the lex posterior which was arguably incompatible with international law had never consented to the earlier treaty in the Konkordat case. Rather, that treaty had been single-handedly concluded by a dictator who was unwilling to fulfil it. This is why the FCC made quite an effort to prove that the Konkordat had been validly concluded at all.13 Moreover, the Konkordat case contained a federalism problem not present in the DTA case. Despite the particularities of the Konkordat case, however, the FCC case law on the relationship between the BL and public international law still firmly rests on the Konkordat judgment, and also the DTA decision quotes it several times. 2. The FCC’s Cornerstones of Foreign Relations Law The following three cornerstones of foreign relations law under the BL were laid by the FCC in 1957 and never moved: (1) The relationship between international law and German law continues to be determined by the dualistic conception advocustomary international law and the general rules of law in the sense of Art. 38 (1)(b) and (c) Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (see FCC, BVerfGE 124, 135). 12

FCC, Konkordat (note 8), 362 et seq.

13

Ibid., 330 et seq.

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cated by Triepel in the late 19th century.14 (2) The general rules of international law in the sense of Article 25 BL are not accorded constitutional rank; rather, they rank above the federal laws but below the BL (intermediate rank). (3) Within the German legal order, treaties concluded by the Federation share the rank of the federal laws enacted pursuant to Article 59 (2)(1) BL. They can accordingly be overridden by any later federal law (lex posterior). With these three cornerstones, the FCC early on minimised the friendliness of the BL towards international law, although it expressly reaffirmed that very concept in the Konkordat case. All three cornerstones can plausibly be derived from the BL but none of them with cogent force: It would just as well be possible to assume that the BL adopted the monistic approach,15 that it gives the general rules of international law constitutional rank, and that it subjects the legislature to the rule of ‘pacta sunt servanda’.16 In 1971, the FCC missed an opportunity to revise cornerstone (3) and upgrade the status of treaties within German law in a way more friendly towards international law. In that case, an applicant had argued that by disregarding a treaty, the FSTC had at the same time violated the rule ‘pacta sunt servanda’ which qualified as a general rule of international law in the sense of Article 25 BL. The FCC, however, refused to accept that the rule ‘pacta sunt servanda’ transformed the provisions of a treaty into general rules of international law in the sense of Article 25 BL and thereby gave them superior rank within German law.17 B. The Order of 2004 on the Communist Land Reform (CLR): A Change of Mentality?

1. Extension and Elevation of the BL’s Friendliness Towards International Law ... In the order of 2004 on the Communist Land Reform, the FCC held that the BL’s friendliness towards international law imposed the obligation to respect international 14

Heinrich Triepel, Völkerrecht und Landesrecht (1899).

15

But see FCC, Görgülü (note 7), 318.

16

See in more detail Giegerich (note *), 8. See also Payandeh (note 2), 1280 et seq.

17

FCC, BVerfGE 31, 145, 178. For a critique see Giegerich (note *), 9.

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law on all German State organs.18 The Court thereupon distinguished three dimensions of this obligation to respect international law: (1) German State organs are obliged to abide by the norms of public international law binding upon Germany and to avoid contraventions if possible. (2) The legislature has to ensure that the German legal order provides mechanisms for correcting violations of international law committed by German State organs. (3) German State organs can also be obliged to uphold international law within their own area of authority if foreign States violated it, thereby neutralising or at least mitigating the consequences which such foreign violations have in Germany. While the CLR order concentrated on dimension (3), the first two dimensions are relevant for the DTA decision. The first dimension, obliging “the German State organs” to abide by binding norms of public international law and avoid contraventions wherever possible, is apparently also imposed on the legislature. The second dimension is even expressly addressed to the legislature: If they are to provide corrective mechanisms to undo violations of international law which have already been committed, they should a fortiori be obliged to refrain from such violations themselves. The impression that the CLR order marked a significant turn to increased friendliness towards international law was underlined by the introduction to the aforementioned passage, which reads as follows: “Pursuant to Art. 20 (3) BL, the German State organs are bound by international law which claims domestic validity as treaty law under Art. 59 (2)(1) BL and with its general rules, in particular as customary international law, under Art. 25 (1) BL.”19 Article 20 (3) BL20 is usually considered as the principal embodiment of the rule of law principle (Rechtsstaatsprinzip) in the BL which may not even be affected by constitutional amendments.21 Accordingly, the friendliness towards international law seemed to have been identified as one of the essential and inviolable principles of the BL.

18

FCC, CLR (note 9), 24 et seq.

Ibid. The English translation published on the website of the FCC is slightly different, see http:// www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2004/10/rs20041026_2bvr09 5500en.html (accessed on 17 October 2016). 19

20 Art. 20 (3) BL: “The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice”. 21

Art. 79 (3) BL.

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The FCC did not stop at identifying the friendliness towards international law as a component of the rule of law principle but elevated it even further in the ensuing paragraph of the CLR order: The BL integrates the State constituted by it in a public-international-law system that preserves freedom and peace because it seeks a harmony between its own free peaceful order and a public international law that not only relates to the coexistence of the States, but is intended to be the basis of the legitimacy of every State order […] The constitution emphasises particular institutions and sources of law of international cooperation and public international law (Art. 23 (1), Art. 24, Art. 25, Art. 26 and Art. 59 (2) BL). In this respect, the BL facilitates the genesis of public international law with the participation of the Federation and ensures the effectiveness of existing public international law. The BL places the State organs in the indirect service of the enforcement of public international law and in this way reduces the risk that international law is not observed […].22

2. ... But Only “Controlled Commitment” of German Institutions to Some Rules of International Law From the very beginning, however, there were doubts concerning the qualification of the CLR order as evidence for a true change of mentality in the FCC. Such doubts were cast by the express reservation that the German institutions were obliged to refrain from infringements of international law only “if possible”. Provided that there is the requisite political will, violations of international law can of course always be avoided. So why was that reservation necessary? Those doubts were aggravated by a further passage immediately following the one quoted at the end of the preceding paragraph and emphasising that the direct constitutional duty to enforce public international law is not to be assumed indiscriminately for any and every provision of public international law, but only to the extent that it corresponds to the conception of the BL laid down in Articles 23 to 26 BL and in Art. 1 (2) and Art. 16 (2)(2) BL. The BL aims to achieve the opening of the domestic legal system for public international law and international cooperation in the form of a controlled commitment; it does not provide that the German legal system should be subordinated to the system of public international law and that public international law should have absolute priority over constitutional law, but instead, it seeks to increase respect for international organisations that preserve peace and freedom, and for 22 FCC, CLR (note 9), 25. The FCC here referred to its Görgülü order (note 7). English version quoted from the aforementioned translation (supra, note 19), with minor changes.

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public international law, without giving up the final responsibility for respect for human dignity and for the observance of fundamental rights by German State authority […].23

This “controlled commitment” of German State organs with regard to only some provisions of international law left the BL’s glass of friendliness towards international law at best half full. Yet, these reservations seemed to be less dramatic if one took the reasoning of the FCC into account which closely circumscribed them. The reasoning underlined that the reservations were merely intended to prevent the submission of the German legal order to the international legal order, the absolute supremacy of international law over German constitutional law, and the renunciation of a certain “final responsibility”. The grammatical construction of the sentence shows that the FCC referred to the final responsibility of the BL to ensure respect for human dignity and for the observance of fundamental rights by German State authority. Friends of public international law could live with that all the more since international law has never tried to prevent German State authority from respecting human dignity and fundamental rights.

C. The Internationalist Potential of the Görgülü Order of 2004

Despite those doubts the CLR order possessed considerable potential for reforming the three cornerstones laid by the Konkordat judgment in a way which would make them friendlier towards international law. That potential became clearer if the CLR order was read together with the Görgülü order that had been handed down only twelve days earlier and was quoted several times in the former. As a matter of fact, the Görgülü order had not been unreservedly friendly towards international law either because it reconfirmed cornerstones (1) and (2) of the Konkordat judgment.24 Cornerstone (3) was, however, modified considerably: The BL aims to integrate Germany into the legal community of peaceful and free States, but does not waive the sovereignty contained in the last instance in the German constitution. There is therefore no contradiction with the aim of friendliness toward international law if the legislature, exceptionally, does not comply with the law embodied in an internaIbid. English version quoted from the aforementioned translation (supra, note 19), with minor changes. 23

24

Id., Görgülü (note 7), 318.

478 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 tional agreement, provided this is the only way in which a violation of fundamental principles of the constitution can be averted.25

Since the Görgülü order concerned the violation of the European Convention on Human Rights (ECHR)26 by a court decision, the quoted passage was an obiter dictum. One could, however, deduce from it that a legislative treaty override would henceforth only be permissible if there was no other way to protect the fundamental constitutional values which Article 79 (3) BL immunises even against constitutional amendments.27 Most commentators indeed interpreted the passage in this way which was very friendly towards international law.28 The DTA order has now unfortunately made clear that this was a misinterpretation of the Görgülü order.29

V. The ‘Friendliness Towards International Law’ of the DTA Order Disappoints Friends of International Law A. Reaffirmation and Expansion of the Three Cornerstones of the Konkordat Judgment

The DTA order has now disappointed the expectations (or perhaps only the hopes) of the friends of international law by not only reaffirming cornerstone (3) of the Konkordat judgment quite bluntly but seemingly also eternalising it as part and parcel of the principle of democracy (Article 20 (2) in conjunction with Article 79 (3) BL). What it had already begun in its case law on European integration,30 the FCC now continues also in its case law on public international law – namely turning Ibid., 319, quoted with some modifications from the English translation published on the website of the FCC, available at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/ 2004/10/rs20041014_2bvr148104en.html (accessed on 20 October 2016). 25

26 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, UNTS 213, 222 (ECHR). 27 Art. 79 (3) BL: “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.” See supra, note 4. 28

See the references given by the DTA order, FCC, DTA (note 2), para. 59.

29

Ibid. See infra, V. E. 2.

30

See in particular FCC, BVerfGE 123, 267, 340 et seq. (Lisbon Treaty).

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the constitutional principle of democracy into the main adversary of the BL’s international openness. The FCC’s concept of democracy, being geared towards the classical nation State, legitimises and may even force a violation of European Union law and public international law. Such a concept of democracy should have no place in a constitutional system friendly towards European Union law and public international law. Constitutional principles should not thus be played off against each other. The DTA order initially underlines cornerstones (1) and (2) of the Konkordat judgment31 before it reaffirms the case law based on cornerstone (3).32 It adds quite correctly that the BL – in difference to other constitutions (and, as one might add, also to Article 216 (2) Treaty on the Functioning of the European Union (TFEU))33 – does not (expressly) provide for any general supremacy of international treaties over federal laws.34 But the FCC then goes one step further, arguing that cornerstone (3), according to which international treaties had the rank of federal statutes only, was a special part of the BL’s foreign relations law system and could therefore not be overcome by the general constitutional principle of friendliness towards international law.35

B. Disrespect for the Fundamental Rule ‘Pacta Sunt Servanda’

In the DTA order, the FCC moreover reaffirms its aforementioned order of 1971, according to which the rule ‘pacta sunt servanda’, read together with Article 25 BL, did not impose any limits on legislative treaty override:36 That rule did in particular not transform all provisions of international treaties into general rules of international law in the sense of Article 25 BL with precedence over the laws.

31

Id., DTA (note 2), paras. 34 et seq.

32

Ibid., paras. 43 et seq.

Treaty on the Functioning of the European Union, 13 December 2007, OJ 2012 C 326, 47 (consolidated version). 33

34

FCC, DTA (note 2), para. 42.

35

Ibid., paras. 73 et seq.

36

Ibid., para. 47.

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The DTA order ignores an important difference between the DTA case at hand and the case of 1971. The latter was only about the interpretation of a certain General Agreement on Tariffs and Trade (GATT)37 provision by the FSTC which the FCC did not want to subject to a de novo review but only to a review as to its compatibility with specific constitutional rules. It narrowly interpreted the scope of those rules as a justification for not intervening in the FSTC’s interpretation of the GATT. In the case at hand much more is at stake, namely whether the federal legislature may renege at will on a promise to perform a certain treaty in good faith that it gave earlier in the form of a federal law enacted in accordance with Article 59 (2)(1) BL. Not only the German State as a subject of international law, but also its institutions, including the legislature, are bound by the treaty. This is because the bona fide performance of a treaty, due under international law,38 “is possible in a State under the rule of law governed by the principle of the separation of powers only if all the institutions exercising sovereign power are bound by the [treaty].”39 The quoted passage refers to the ECHR but can be generalised and extended to other treaties as well. The question in the DTA case therefore is: May the legislature deliberately annul its own earlier commitment to perform a treaty and thereby automatically cause the German State to commit a breach of that treaty? Such an action calls the binding character of treaties for Germany quite generally into question. It does not only contravene the concrete treaty provision which is overridden but negates the rule ‘pacta sunt servanda’ as such and consequentially the inviolability of the international legal order as a whole. Accordingly, such a legislative action is clearly incompatible with Article 25 BL, even if one assumes that an isolated court decision contrary to a treaty would not violate that provision.

37

General Agreement on Tariffs and Trade, 30 October 1947, UNTS 55, 194.

See Art. 26 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT) (declaratory of a rule of customary international law). 38

FCC, Görgülü (note 7), 323, quoted with some modifications from the English translation, supra, note 25. 39

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C. Playing Off the Principle of Democracy Against the Principle of Friendliness Towards International Law: The Emperor’s New Clothes

1. International Law Reduced to a Plaything of Republican Power Politics In the DTA order, the FCC rejects any obligation of the legislature to abide by laws consenting to treaties which it passed earlier pursuant to Article 59 (2)(1) BL. The Court does so by reference to the principle of democracy (Article 20 (1) and (2) BL) and the principle of parliamentary discontinuity:40 Democracy was temporary rule. Therefore, an earlier legislature could not commit a later legislature which remained free to change legislative decisions of the past, within the limits defined by the BL. This applied also to earlier laws consenting to treaties pursuant to Article 59 (2)(1) BL. These laws were intended to provide self-executing international treaties with a sufficient level of democratic legitimacy, and not to lower that level (compared with ordinary laws). The requirement of prior legislative consent in the process resulting in treaty commitments should protect the autonomy of decision of the legislature.41 In this line of argument, ‘democracy’ is but the name for the new clothes of the emperor, i.e. the 19th century sovereign monarchy playing naked power games with international law.

2. The Treaty-Friendly Interpretation of the Principle of Democracy is Preferable It is true that laws expressing consent to treaties pursuant to Article 59 (2)(1) BL are intended to enhance the democratic legitimacy of those treaties. However, they also aim to ensure effective treaty performance by Germany. The autonomy of decision of the legislature is indeed to be protected, but in the sense that it must give its prior consent to treaties whose performance requires legislative action. Article 59 (2)(1) BL purposes to prevent Germany from entering into treaty commitments 40

Id., DTA (note 2), paras. 52 et seq.

41

Ibid., para. 53.

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which necessitate legislative action without previous legislative approval. The German legislature shall not be placed in the dilemma of either having to enact a law which was pre-formulated in a treaty without its involvement or violating international law. But the purpose of Article 59 (2)(1) BL would be turned into its opposite if one read it in the way advocated by the DTA order – namely as leaving the legislature entirely free to annul at will the prior consent it gave to the conclusion of a treaty in the form of a federal law. Rather, the enactment of such a law contains the binding legislative promise to perform the treaty in good faith. The consent law in the sense of Article 59 (2)(1) BL is not a law like any other because it goes along with an international legal commitment to the other party or parties to the treaty which Germany entered into on the basis of a joint and deliberate decision by its executive and legislature. The BL has established a constitutional order that is open towards international cooperation and friendly towards international law42 and was adopted by the German people “inspired by the determination to promote world peace as an equal partner in a united Europe”.43 On this background, the BL’s principles, including the fundamental principles entrenched by Article 79 (3) BL, among them the principle of democracy (Article 20 (1) and (2) BL), should preferably be interpreted in a way that promotes instead of impedes the integration of Germany into the European Union and the international community as a whole.44 This will almost always be possible – not least because those principles are rather abstract – and would have been possible in the DTA case as well. Within the overall system of a constitution which is open to international cooperation and friendly towards international law one can of course construe Article 20 (1) and (2) BL in such a way that it does not give carte blanche to the legislature to override treaties. The democracy established by the BL does not permit the legislature to renege on a solemn promise which it once gave to the other contracting party or parties through the federal president and the federal government acting as intermediaries.45 That interpretation of Article 20 (1) and (2) BL is not only possible but also The DTA order reaffirms that the unwritten principle of friendliness towards international law has constitutional rank, FCC, DTA (note 2), para. 65. 42

43

Preamble of the BL (quoted from the translation referenced supra, note 4).

With regard to the European integration see Thomas Giegerich, Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozeß (2003), 1346 et seq. 44

45

Art. 59 (1)(2) in conjunction with Art. 58 BL.

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required if one takes the constitutional principle of friendliness towards international law seriously.

3. Misleading Parenthesis on the Rule of Law Principle The DTA order does not stop at playing off the principle of democracy against the BL’s friendliness towards international law. It also misuses the rule of law principle (of all constitutional principles) for that purpose. The FCC states that pursuant to Article 20 (3) BL, the legislature was only bound by the constitutional order and not by ordinary laws. “If the legislature lost its legislative authority to the extent in which it had approved international treaties in the form of a federal law, this would result in a commitment inconsistent with Art. 20 (3) BL.”46 This conclusion is incorrect because the constitutional order binding upon the legislature is friendly towards international law. Accordingly, the assumption that the legislature was bound by federal laws enacted pursuant to Article 59 (2)(1) BL for the purpose of giving prior approval to international treaties can definitely be squared with Article 20 (3) BL if one is ready to interpret that provision in the light of the BL’s friendliness towards international law. Article 25 BL, which adopts the international legal rule ‘pacta sunt servanda’, strongly suggests that this is the correct interpretation of Article 20 (3) BL.47

4. The Unfortunate Legacy of the Pershing Judgment: The Foreign Relations Power Continues to be an Executive Domain The DTA order adduces a further unconvincing argument in support of its view that the principle of democracy guarantees the legislature’s right to override treaties at will: The legislature would otherwise remain permanently and inescapably bound by its earlier law approving a certain treaty because it lacked the competence for the denunciation of treaties.48 For this proposition, the FCC invokes its Pershing judg-

46

FCC, DTA (note 2), para. 54.

47

Concerning the rule of law principle, see further infra, V. F.

48

FCC, DTA (note 2), para. 53.

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ment of 1984.49 Back then, the Court had explained that unilateral declarations by the executive having international legal consequences such as denunciations of treaties did not require the prior consent of the legislature in the form of a federal law. Article 59 (2)(1) BL could be applied neither directly nor analogously to such declarations. That constitutional provision did not confer powers of initiative, alteration of legal relationships, or control in the sphere of foreign affairs on the legislature, beyond the latter’s power of authorising the executive in the form of a federal law to conclude certain types of treaties. This strict circumscription of the powers accorded to the legislature by Article 59 (2)(1) BL was an element of the separation of powers system established by the BL (Article 20 (2)(2) BL). In foreign affairs, it was impermissible to attribute to the federal parliament important decision-making powers of an executive character. In the Pershing judgment, the FCC had strongly objected to wrongly deducing from the principle of democracy a kind of power monism in the form of a comprehensive parliamentary prerogative which would be incompatible with the BL’s separation of powers system.50 But even if one rejects such a comprehensive parliamentary prerogative and also assumes that the executive alone is competent for the denunciation even of treaties which had been concluded with legislative consent, the outcome of this is only that the legislature has no power of its own to denounce treaties. It simply does not follow, however, that with the enactment of a law consenting to a treaty pursuant to Article 59 (2)(1) BL, the legislature would relinquish its right of legislation permanently if it did not retain the power to override the treaty. For the following three reasons, such a power, which is utterly unfriendly towards international law, is unnecessary to preserve the parliament’s legislative powers.51 Firstly, legislation is anyhow typically initiated by the federal government – that was also the case with regard to the TAL 2003, which gave rise to the DTA case.52 Since the federal government’s authority undoubtedly includes the foreign relations power, it can easily ensure that Germany’s obligations under public international law 49

Id., BVerfGE 68, 1, 83, 85 et seq. (Pershing).

50

Ibid., 87.

51

See also Payandeh (note 2), 1281 et seq.

See Art. 76 (1) BL: “Bills may be introduced in the Bundestag by the Federal Government, by the Bundesrat, or from the floor of the Bundestag.” Quoted from the translation referenced supra, note 4. 52

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remain compatible with the internal legal situation under statutory law. It is even constitutionally obliged to guarantee such coherence because Article 25 BL adopts the rule ‘pacta sunt servanda’ as a general rule of international law and makes it part of the federal law. Secondly, if the legislative initiative originates from the floor of the federal parliament, the parliamentary majority which intends to pass the bill in the form of a federal law usually has great political influence on the federal government in the parliamentary system established by the BL. It can accordingly prompt the federal government either to denounce the conflicting treaty or to negotiate an interpretative or amending agreement with the other States parties in order to ensure harmony between the legal situation on the international and national levels.53 Thirdly, if the political influence of the parliamentary majority turns out to be insufficient in exceptional cases, it can enact a law obliging the federal government to exercise its foreign relations power in the aforementioned way. While such a piece of legislation would indeed be unusual in the German separation of powers system, it can be based on a plausible interpretation of the BL since it provides the opportunity of reconciling the fundamental principles of democracy and friendliness towards international law without inadmissibly interfering in the core area of executive responsibility. Thus, the view expressed in the DTA order that legislative treaty override at will was the only means to uphold the principle of democracy54 is not true. As I demonstrated, there are indeed more moderate alternatives compatible with both international law and German constitutional law.

5. Is the Arbitrary Treaty Override Even Under the Protection of Article 79 (3) BL? The DTA order brings in the heavy artillery by invoking the principles of democracy and the rule of law as arguments in favour of the freedom of the legislature to break international treaties arbitrarily. The FCC thereby seemingly made this destructive See the dissenting opinion by Judge König to the DTA order (para. 11). See also FCC, Pershing (note 49), 89. 53

54

FCC, DTA (note 2), para. 89 et seq.

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freedom part and parcel of two of the essential structural principles of the BL that may not even be affected by constitutional amendments (Article 79 (3) read together with Article 20 BL). Does that mean that the legislature, acting by the required constitutionamending two-thirds majority,55 would be prevented from including a provision in the BL expressly stating a rule which can be found in the constitutions of several EU Member States and in Article 216 (2) TFEU – that international treaties take precedence over the laws?56 Would such a constitutional amendment, making the BL friendlier towards international law, inadmissibly “affect” the principles laid down in Article 20 BL?

6. The Antithesis: Compliance with International Law as Component of the Democracy Concept of Carlo Schmid A concept of democracy totally different from the one in the DTA order was expressed by Carlo Schmid, one of the Founding Fathers of the Federal Republic of Germany, in a speech in the constituent assembly (Parlamentarischer Rat) which drafted the BL in 1948–1949: One of the elements of democracy is the acceptance of the statement that law takes precedence over power, and I believe and would assert that a State can today only call itself fully democratic if it recognises this principle in the relation to other States. I need not remind you of the magnificent idea of Immanuel Kant […] that a State can only embed man in law if it is itself embedded in law in the relation to other States.57

If democracy means more than unfettered rule by the respective political majority, compliance with international law is certainly a prominent substantive value to be 55

Art. 79 (2) BL.

See, e.g., Art. 10 Constitution of the Czech Republic (Ústava České Republiky), 1 January 1993, Sbírka Zákonů 1/1993, as amended on 1 June 2013, Sbírka Zákonů 98/2013; Art. 55 French Constitution (Constitution Française), 4 October 1958, Journal Officiel de la République Française (JORF) No. 0238, 9151, as amended on 23 July 2008, JORF No. 0171, 11890; Art. 94 Constitution for the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Nederlanden), 30 March 1814, as amended on 27 June 2008, Staatsblad 2008, Nr. 348; and Art. 91 (2) Constitution of the Republic of Poland (Konstytucja Rzeczypospolitej Polskiej), 17 October 1997, Dziennik Ustaw 78, 483, as amended on 12 October 2010, Dziennik Ustaw 114, 946. 56

Second Session of the Plenary, 8 September 1948, translated from the German original reprinted in: Der Parlamentarische Rat 1948–1949, Akten und Protokolle, Vol. 9 (1996), 40. 57

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included in that principle, in particular in a constitutional system friendly towards international law such as that established by the BL.

D. The Violation of International Law Accompanying any Treaty Override is Downplayed by the FCC

Contrary to the impression created by the DTA order, any treaty override gives rise to a violation of international law and therefore entails the international responsibility of Germany.58 It is true that international law does not void State acts committed in violation of an international obligation because it lacks automatic effects within national law, being unable to pierce the veil of sovereignty. This is an important weakness of international law which therefore is particularly dependent on the help of State organs, including the legislature, in the enforcement of its rules. But international law of course prohibits a State not only from enacting incompatible legislation but also from maintaining it in force. Rather, it obliges that State to reestablish the situation which existed before that wrongful act was committed.59 International law in other words requires that any legislative treaty override be immediately repealed and all its consequences completely eliminated. The FCC mistakenly believes that international law does no more than regulating the permissible reactions to a treaty override by other States and denying the responsible State the invocation of provisions of its internal law as justification for its failure to perform the treaty. As a matter of fact, international law goes much further: It prohibits legislative treaty overrides as such by virtue of the rule ‘pacta sunt servanda’ and only additionally regulates the legal consequences of potential violations of that prohibition. The DTA order downplays the fact that a treaty override means no less than a frontal attack on the Grundnorm of international law. The FCC merely remarks that the adoption of legal acts in violation of international law constituted a contravention that was “not irrelevant”.60 This is a gross understatement. Putting matters in the proper perspective, the deliberate violation of an international treaty by the parliament 58

FCC, DTA (note 2), paras. 60 et seq.

See Art. 35 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, 12 December 2001, United Nations General Assembly (UN GA) Res. 56/83. 59

60

FCC, DTA (note 2), para. 63.

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of a State which proudly portrays itself as being committed to the rule of law and friendly towards international law is a very serious incident. It amounts to no less than the repudiation of the sanctity of treaties and thus the inviolability of international law by one of its formerly most faithful adherents. “Each deliberate breach of treaty compromises Germany’s reliability as a partner in international legal relations.”61 Put more poetically: “Remain loyal to treaties! What you are, you are but through treaties.”62 One should never forget that from the Peace of Westphalia of 1648 to the TwoPlus-Four Treaty of 1990, Germany’s position in Europe and the world community as a whole has more depended on treaties than that of most other States. Furthermore, the German entry into both World War I and World War II went along with deliberate material breaches of treaty commitments with disastrous consequences for Europe and the wider world, which had made Germany a pariah State twice in one generation: The German invasion of Belgium on 4 August 1914 violated Article 2 Treaty of London of 19 April 1839 in which Prussia (among other States) had guaranteed the perpetual neutrality of Belgium as agreed in Article 7 of the separate treaty of the same date which had been concluded between the Kingdom of the Netherlands and the new Kingdom of Belgium.63 This provided the background for Article 227 Treaty of Versailles of 28 June 1919: “The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties […]”.64 The German invasion of Poland on 1 September 1939 clearly contravened the General Treaty for the Renunciation of War (Briand-Kellogg Pact) of 27 August 1928.65 It was in reaction to these (and many other) German violations of international law that specific provisions were inserted into the German constitutions of 1919 (the Weimar Constitution) and even more explicitly of 1949 (the BL) to ensure 61

This is correctly underlined by the dissenting opinion (para. 23).

This is Fasolt’s admonition to Wotan. Richard Wagner, Der Ring der Nibelungen, 2nd scene, in: id., Die Musikdramen (1971), 539 et seq. (translation by the author). 62

63 Treaty between Austria, France, Great Britain, Prussia and Russia, and the Netherlands, 19 April 1839, CTS 88, 411; text also available at: http://mjp.univ-perp.fr/constit/be1839.htm (accessed on 28 October 2016). See Stephen C. Neff, War and the Law of Nations (2005), 240. 64 Treaty of Peace between the Allied and Associate Powers and Germany, 28 June 1919, CTS 225, 188, also available at: https://www.loc.gov/law/help/us-treaties/bevans/m-ust000002-0043.pdf (accessed on 17 January 2017).

General Treaty for the Renunciation of War (Briand-Kellogg Pact), 27 August 1928, LNTS 94, 57, RGBl. 1929 II, 97. 65

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that Germany would henceforth faithfully abide by its treaty commitments and other obligations under international law.66 In his speech celebrating the 20th anniversary of the International Tribunal for the Law of the Sea in Hamburg on 7 October 2016, the German federal president said this: Germany has a particular interest to safeguard achievements in international law and to make further progress – because of an obligation arising from her history and in view of her increased international responsibility. Legitimacy, stability, and predictability – as conveyed by common rules – will benefit all States, including the powerful ones.67

E. Reduction of the Constitutional Principle of Friendliness Towards International Law to a Mere Means of Interpretation

1. But the FCC Immediately Disregards that Means of Interpretation It is particularly disappointing that the FCC considers the unwritten constitutional principle of friendliness towards international law, which it expressly reaffirms, as insufficient to render laws deliberately violating international law (such as treaty overrides) unconstitutional.68 The Court indeed acknowledges that the aforementioned principle derives from the conjunction of several BL provisions which incorporate a “constitutional decision for an international cooperation based on the respect for and the strengthening of international law”.69 Those provisions moreover oblige public authority in all its forms “to counteract divergences between the legal situation on the international and national levels and to avoid the emergence of the international responsibility of Germany from a violation of international law […]”.70 Finally, “the BL places the State organs in the service of the implementation of Art. 4 Weimar Constitution (Die Verfassung des Deutschen Reichs), 11 August 1919, RGBl. 1919, 1383, and even more clearly Art. 25 BL. 66

67 German Federal President, Bundespräsident Joachim Gauck beim Festakt zum 20-jährigen Bestehen des Internationalen Seegerichtshofs, 7 October 2016, available at: http://www.bundespraesident.de/ SharedDocs/Downloads/DE/Reden/2016/10/161007-Internationaler-Seegerichtshof.pdf?__blob= publicationFile (accessed on 17 November 2016) (translation by the author). 68

FCC, DTA (note 2), paras. 64 et seq.

69

Ibid., para. 65.

70

Ibid.

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international law and thereby minimises the risk of non-compliance with international legal rules […]”.71 Yet, surprisingly, the constitutional principle of friendliness towards international law includes “no constitutional obligation of absolute compliance with all international treaties” but rather serves only as a means of interpretation of constitutional and statutory law.72 Then, however, the DTA order does anything but use the principle of friendliness towards international law to interpret the constitutional principles of democracy and the rule of law in a way which would keep them compatible with international law. Instead, it virtually pushes them into an avoidable conflict with the rule ‘pacta sunt servanda’.

2. May Germany of Late Sovereignly Defy International Law? The first argument which the FCC adduces in support of its reduction of the principle of friendliness towards international law consists of a bare statement: The BL did not relinquish sovereignty that was embodied in the final say of the German constitution.73 What the Court means is that in cases of conflict with international law, the BL should always prevail. As a matter of fact, the BL does not use the multifaceted term ‘sovereignty’74 because the Federal Republic of Germany was not yet sovereign in 1949 when the BL entered into force. Rather, it regained its sovereignty for the most part when the Occupation Statute was finally revoked on 5 May 195575 and completely only on 15 March 1991 with the entry into force of the so-called Two-Plus-Four-Treaty.76 While the drafters of the BL strove for the recovery of the 71

Ibid., para. 66.

72

Ibid., para. 67.

73

Ibid.

See Thomas Giegerich, Die Souveränität als Grund- und Grenzbegriff des Staats-, Völker- und Europarechts, in: Utz Schliesky et al. (eds.), Die Freiheit des Menschen in Kommune, Staat und Europa: Festschrift für Edzard Schmidt-Jortzig (2011), 603. 74

75 Proclamation of the Allied High Commission of 5 May 1955, Official Gazette of the Allied High Commission for Germany, No. 126 (1955), 3272, available at: http://deposit.ddb.de/online/vdr/ rechtsq.htm (accessed on 28 October 2016). 76

1318.

Art. 7 Treaty on the Final Settlement with Respect to Germany, 12 September 1990, BGBl. II,

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sovereignty of Germany that had been lost at the end of World War II, they did so not in order to fortify it like a “rocher de bronze” but to transfer it to a united Europe in an act of free self-determination.77 Even more disturbing than the FCC’s ahistorical “rocher de bronze” approach is the fact that its aforementioned statement lacks any reference to the Görgülü order and the Treaty of Lisbon judgment where the sovereignty argument had been used before by the same senate of the FCC.78 It seems that the DTA order wants to shake off the constitutional fetters concerning international treaties which those two earlier decisions had placed on sovereignty, using the following formulation: “In this respect, it does not run counter to the objective of friendliness towards international law if the legislature exceptionally disregards treaty provisions where this is the only way to prevent an infringement of essential constitutional principles.”79 Henceforth, the BL – as interpreted by the FCC – in other words apparently claims the sovereignty for the German State to disregard international treaties at will. It does not need to prove any longer that treaty overrides are necessary to preserve essential constitutional principles. This is a disquieting step backward to conceptions of sovereignty prevailing in the first half of the 20th century, which the BL wanted to overcome because they had ruined Germany twice in the course of one generation. As late as 2009, the FCC correctly stated in the Treaty of Lisbon judgment: The Basic Law abandons a self-serving and self-glorifying concept of sovereign statehood and returns to a view of the State authority of the individual State which regards sovereignty as ‘freedom that is organised by international law and committed to it’ […].80

The FCC’s new notion of sovereignty is not only foreign to the BL but also and a fortiori to international law. Sovereignty in the international legal sense of the term means that every State remains free to decide on which treaties to conclude. But if a State has exercised its sovereign right of entering into a treaty, it can no longer invoke See the statement by Carlo Schmid in the Parliamentary Council which was met with applause, quoted in: Giegerich (note 44), 1400 et seq. 77

78

FCC, Görgülü (note 7), 319; id., Lisbon Treaty (note 30), 400 et seq.

Id., Görgülü (note 7), 319. The Treaty of Lisbon judgment added that the legislature would have to accept the consequences in international relations arising from such a disregard of treaty provisions. 79

80 Id., Lisbon Treaty (note 30), 346, English translation taken from the version published on the FCC’s website, available at: http://www.bverfg.de/e/es20090630_2bve000208en.html (accessed on 28 October 2016), para. 223.

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its sovereignty as a ground for reneging on its commitments. It can only terminate them by denouncing the treaty within the limits set by international law and now codified in Articles 54 et seq. Vienna Convention on the Law of Treaties.81 As long as a State remains bound by a treaty, however, international law requires the faithful and complete fulfilment of all its treaty commitments at any time and without exception.82 The rule ‘pacta sunt servanda’ constitutes the cornerstone of the modern international legal system, which is primarily based on numerous multilateral law-making treaties. Our international legal system, centering on the UN Charter,83 is the mainstay of peaceful international relations, justice, economic and social progress, respect for human rights, and environment protection around the globe. It is no coincidence that in 1945 the peoples of the United Nations declared their determination in the preamble of the UN Charter “to establish conditions under which […] respect for the obligations arising from treaties and other sources of international law can be maintained”.

3. The “Controlled Commitment” Reservation Formulated in the CLR Order is Stripped of its Constitutional Constraint The DTA order then takes up the “controlled commitment” reservation with regard to international law formulated in the CLR order of 2004 only to abandon the constitutional constraint it had attached to it back then. In 2004, the “controlled commitment” was intended to maintain the final responsibility of the BL to ensure respect for human dignity and for the observance of fundamental rights by German State authority.84 Now, “controlled commitment” means that the legislature can freely decide whether or not Germany will continue to fulfil its treaty obligations. In other words, legislative arbitrariness henceforth controls Germany’s compliance with the rule ‘pacta sunt servanda’. This is no longer “controlled commitment”, it is no commitment at all.85 81 See already Permanent Court of International Justice, S. S. Wimbledon, Judgment of 17 August 1923, Series A, No. 1, 25. 82

See supra, V. D.

83

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

84

See supra, IV. B. 2.

Gärditz (note 2), 345, calls the DTA order “a liberating act from the legalism that can stifle the body politic with an ever-tighter web of regulation”. 85

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There is a theoretical possibility that the political majority controlling the legislature at a certain time may be tempted “to immunize current legislation against future amendment” by transforming it into a treaty.86 But we are still waiting for such an abuse to occur in practice, and in a case where the treaty cannot be denounced. The BL’s friendliness towards international law should not be prematurely and comprehensively dismantled, also with regard to normal cases such as the one at hand. The FCC correctly states that the constitutional principle of friendliness towards international law, having been deduced from a combined consideration of the pertinent BL provisions, cannot be applied in a way which contradicts these specific BL provisions.87 However, it has already been stated that Articles 25 and 59 (2)(1) BL do not cogently require that laws consenting to international treaties be surrendered to the arbitrariness of a later parliament.88 The principle of friendliness towards international law can surely have its effects only within the framework of the BL’s system of democracy and the rule of law, leaving the principle of democratic self-determination untouched.89 But the principles of democracy and the rule of law must not be understood as antitheses to the principle of friendliness towards international law. Rather, all three principles are interdependent and interrelated and therefore need to be coordinated in a way that ensures the coherence of the constitutional system as a whole. This is why in the constitutional system established by the BL as an order friendly towards international law, democratic self-determination does not permit manifest breaches of a treaty. F. Not even the Rule of Law Principle is Said to Prohibit Breaches of Treaties

Finally, the DTA order dismisses the argument that the rule of law principle prohibited the legislature from overriding treaties. It here again refers to the necessity of maintaining systemic coherence with the specific provisions of Articles 25 and 59 (2)(1) BL and with the principle of democracy which it interprets in the aforemen86

Ibid.

87

FCC, DTA (note 2), paras. 69 et seq.

88

See supra, V. A. II.

89

FCC, DTA (note 2), para. 72.

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tioned way that is decidedly unfriendly towards international law and therefore unconvincing.90 The FCC even suggests in another part of the DTA order that Article 20 (3) BL virtually compels legislative freedom to override treaties.91 As a matter of fact, only the converse interpretation of the rule of law principle does justice to the friendliness of the BL towards international law. Rule of law essentially means that political (and also economic, social, religious, and other forms of) power are effectively reined in by law. That principle constitutes a civilisational achievement whose importance can hardly be overestimated. In the global age of the 21st century, the States have voluntarily tied themselves together in a network of international treaties in order to juridify and thereby civilise international relations and to pursue common goals with combined efforts. They do this because they know that it serves their long-term interests in stability, peaceful coordination, and reliable international cooperation. Today, the legal containment of the political power of States both outwards and inwards emerges to a considerable extent from international law. In such a situation, international law qualifies as an important natural component of the rule of law in a constitutional system which is as friendly towards international law as the BL. By contrast, the DTA order tries to exclude international law from that principle. The FCC neglects the damage to the credibility of a State which pretends to implement the rule of law but disavows its international legal commitments vis-à-vis the outside world. The Court should instead have followed the example of Article 5 (4) Constitution of the Swiss Confederation92 which includes abidance by the norms of international law among the precepts of the rule of law.93 G. Is there a Human Rights Bright Spot in the Cloud of the DTA Order?

The DTA order indicates, without clearly articulating it, that human rights treaties are not to the same extent subject to discretionary legislative override as other treaties. 90

Ibid., paras. 77 et seq. See supra, V. A.

91

See supra, V. C. 3.

Federal Constitution of the Swiss Confederation (Bundesverfassung der Schweizerischen Eidgenossenschaft), 18 April 1999, Systematische Rechtssammlung 101. 92

While the primacy of international law is accepted as the general rule in Switzerland, there are exceptions, see Tobias Tschumi/Benjamin Schindler, Article 5, in: Bernhard Ehrenzeller et al. (eds.), Die schweizerische Bundesverfassung: St. Galler Kommentar, Vol. 1 (3rd ed. 2014), Art. 5 MN 71 et seq. 93

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The two indications are as follows: Firstly, the DTA order underlines under reference to Article 1 (2) BL that the inalienable human rights are antecedent to the BL and not even at the disposal of the constitution-making power (pouvoir constituant).94 Secondly, the FCC distinguishes between “peremptory norms [of international law] which are beyond the power of the constitution-maker, in particular the inviolable and inalienable human rights (Article 1 (2) BL), and other norms of international law […]”.95 By making this distinction, the FCC tries to explain why certain passages in earlier decisions indicating that the legislature was bound by treaties could not readily be transferred to double taxation agreements because they had all referred to human rights treaties. Hence there is hope that the FCC would not permit legislative overrides of human rights treaties, in particular the ECHR, at least not with regard to all their provisions and not without hesitation. It remains unclear, however, what other rules of international law the FCC would qualify as peremptory. Perhaps that refers to jus cogens in the sense of Articles 53, 64 Vienna Convention on the Law of Treaties.

VI. The Balancing Approach in the Dissenting Opinion of Judge König The only international lawyer in the international law chamber of the FCC96 fought a lost battle.97 She considered the cornerstones of the Konkordat judgment to be outdated. But the change of mentality which in her eyes was necessary had not taken place in the Court. On the contrary, the majority seems to have reverted to a stage of mentality thought overcome. Anyhow, the dissenting opinion offers one of the few bright spots of the DTA order. Judge König correctly explains that the corner94

FCC, DTA (note 2), para. 34.

95

Ibid., para. 76.

The Second Senate of the FCC is competent to decide in proceedings in which the interpretation and application of international law is the main issue, see Sec. 14 (2), (4) Law on the FCC (Bundesverfassungsgerichtsgesetz), 12 March 1951, BGBl. I, 243, as amended on 31 August 2015, BGBl. I, 1474, in conjunction with para. A.IV.1. Order of the FCC Plenary of 24 November 2015, available in German at: http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/DE/GV_Plenum/GV_Plenum_ 2015-11-24.pdf?__blob=publicationFile&v=4 (accessed on 10 January 2017). 96

97

See Gärditz (note 2), 344.

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stones of the Konkordat judgment were no longer convincing in a globalised world in which States were intertwined by treaties in multiple ways and the international legal order for its part also contained the rule of law principle in the form of the international rule of law.98 As an alternative to the majority, Judge König proposes a proper balancing between the principle of democracy, on the one hand, and the rule of law principle in conjunction with the principle of friendliness towards international law, on the other hand. In her eyes, the rule of law principle should be interpreted internationally friendly in the sense that it required the legislature as a rule to abide by treaties. The most important function of the principle of friendliness towards international law was to ensure coherence between the treaty commitments of Germany and her national law and to avoid conflicts.99 In the instant case, Judge König identifies a conflict between the principle of democracy and the rule of law principle. While the former spoke for the legislature’s freedom to override treaties, the latter, if interpreted in an internationally friendly way, favoured the legislature’s strict commitment. This conflict was to be resolved in the form of a gentle balancing of the two principles so that they both retained as much effect as possible. The following criteria had to be considered in the balancing process: the importance and urgency of the regulatory goal of the later law, the chance of finding a solution which would be compatible with international law, and the legal consequences to be expected from the violation of international law.100 Unless there was a preponderance of the criteria supporting the unilateral departure from the treaty in the concrete case, the treaty override was unconstitutional. Applying that balancing method to the instant case, Judge König finds a preponderance of the reasons against the treaty override, not least because Germany could easily have found a solution which was compatible with international law: It could either have denounced the DTA or agreed with Turkey on an interpretation of the DTA along the lines of the German suggestion. The unnecessary defiance of treaty commit-

98 See in particular UN GA, Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels, UN GA Res. 67/1 of 24 September 2012. 99 100

FCC, DTA (note 2), Dissenting Opinion Judge König, para. 12. Ibid., para. 8.

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ments by Germany had a negative signal effect.101 Actually, that treaty override raises doubts of a quite general character as to the continuous fidelity of Germany to international law. Although the dissenting opinion points out an alternative solution for the instant case that would have been in conformity with international law, the general approach it advocates has its own problems. It is not clear why a balancing of the principle of democracy and the rule of law principle should be required at all. If abidance by international treaties is constitutionally required by virtue of the rule of law principle, as interpreted in a way friendly towards international law, then the legislature is simply bound to abide by them. The legislature is likewise bound to adhere to other unwritten obligations derived from the rule of law principle (such as the prohibition of retroactive laws, the presumption of innocence, and the proportionality principle) as well as to constitutional obligations quite generally. Article 20 (3) BL states that “the legislature shall be bound by the constitutional order”, with no exceptions. The democratic system established by the BL is characterised by majority rule under constitutional constraints. There is no room for balancing away these constraints because the democratic majority prefers to disregard them.102 And there is no room in this regard for discrimination against the one constitutional constraint distinguishing the BL from many other constitutions, namely its friendliness towards international law – a constitutional principle which is not inferior to other constitutional principles binding on the democratic majority.

VII. Conclusion: The Friendliness of the BL Towards International Law – A Swan Song What should one think of a constitutional order’s friendliness towards international law which permits the respective parliamentary majority to enact laws in deliberate breach of a treaty that had been concluded with the consent of an earlier parliament? Worse still – of a constitutional order which seems to turn the arbitrary 101

Ibid., paras. 17 et seq.

See the critique of the balancing approach by Andreas Funke, Keine Abwägung im Auswärtigen, Die Öffentliche Verwaltung 2016, 833, who takes the opposite approach from the one suggested here, arguing that treaty overrides are permissible without any balancing. 102

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disregard of the rule ‘pacta sunt servanda’, so essential for international law, into a fundamental and unamendable constitutional principle? To declare that such a constitutional order is friendly towards international law amounts to false labelling. The events leading up to the DTA order, beginning with the governmental bill, continuing with the parliamentary enactment of the law, and culminating in the FCC decision upholding that law, are unworthy of our constitutional State having always prided itself on its openness towards international cooperation and friendliness towards international law. The government and parliament recklessly defied Germany’s treaty commitments in a rather unimportant case in which alternatives compatible with international law would have been available. The governmental bill does not at all assess the impact of the future law on the international legal order. It remains unclear whether the parliamentary majority was sufficiently aware of the fact that it violated the essential international legal rule ‘pacta sunt servanda’. The FCC has for its part used this internationally irresponsible behaviour as an opportunity to dismantle the BL’s friendliness towards international law. This is a black day not only for the status of international law in Germany, but for the international legal order as a whole whose effective implementation depends so much on the faithful cooperation of State organs. Casting doubt on Germany’s fidelity to treaties compromises the international legal certainty and wantonly impairs the international rule of law. Because the fidelity to international law is interdependent with the fidelity to national law and the international rule of law and the German rule of law are closely interrelated, the FCC’s carte blanche for the German legislature to engage in international lawlessness will have negative repercussions on the German constitutional system. This is because “[t]he problem of establishing a perfect civil constitution depends on the problem of lawful external relations between States and cannot be solved without the latter.”103 Lawlessness here tends to breed lawlessness there.

Immanuel Kant, Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht, in: Manfred Riedel (ed.), Schriften zur Geschichtsphilosophie (1985), 21, 29 et seq. (translation by the author, emphasis in the original). 103

“Gliding O’er All”: Human Dignity and Constitutional Identity in the Federal Constitutional Court’s Recent Jurisprudence FELIX TELSCHOW

I. Introduction On the same day the Federal Constitutional Court (FCC) released its disconcerting decision on the override of international treaties,1 legal scholars were thrown into yet another dither: In an order of 15 December 2015 it had found a violation of Article 1 Basic Law (BL)2 in the situation of a European arrest warrant.3 Due to an unusual argumentation on the scope of human dignity, at first glance it seemed like it had declared European Union (EU) law inapplicable following identity review.4 The article at hand starts by providing a critical overview of this concept (II.). It will then turn to the order of December 2015 engaging in a more detailed analysis of the case (III.). As it would be beyond the scope of this article to give an all-embracing review of every relevant question, it will focus on the main questions arising in a broader European perspective. For these purposes, the order will inter alia be put in relation

Dipl. Jur., Doctoral Candidate and Research Associate at the Walther Schücking Institute for International Law, University of Kiel. 1 See on that decision Thomas Giegerich, In Germany International Law May Be Honoured in the Breach: The Federal Constitutional Court Gives the Legislature Carte Blanche to Override Treaties, German Yearbook of International Law (GYIL) 59 (2016), 469. 2 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.), 1, as amended on 23 December 2014, BGBl. I, 2438 (BL).

Federal Constitutional Court (FCC) (Bundesverfassungsgericht), European Arrest Warrant, BVerfGE 140, 317. 3

4 Maximilian Steinbeis, Europarechtsbruch als Verfassungspflicht: Karlsruhe zündet die Identitätskontrollbombe, 26 January 2016, available at: http://verfassungsblog.de/europarechtsbruch-alsverfassungspflicht-karlsruhe-zuendet-die-identitaetskontroll-bombe/ (accessed on 15 January 2017).

500 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

to prior jurisprudence of the European Court of Justice (ECJ) and subsequent jurisprudence of the FCC as well as the ECJ.

II. Identity Review and its Theoretical Conceptualisation Even though the term ‘constitutional identity’ in respect of the BL was already mentioned in earlier decisions, its theoretical conceptualisation was first substantially outlined in the 2009 Lisbon Judgment5 by the FCC.6 Until then it was used rather rudimentarily. The FCC first used the term to safeguard its own competence to adjudicate human rights claims in European contexts, claiming the fundamental rights section of the BL an essential ground structure of the constitution’s identity.7 When it later ruled to generally abstain from adjudicating fundamental rights claims in European contexts,8 it still confirmed this conception.9 However, the reason for this drawback was that it then found the fundamental rights standard of the community essentially similar to its own standards under the BL.10 Today, constitutional identity is understood more narrowly. To explain this, we shall start with Article 23 BL, which constitutes the normative legitimisation of EU law in Germany.11 In particular, the competences of national legislative organs to transfer sovereign rights to the EU stem from Article 23 BL. As this transfer is in fact an act of amending the constitution,12 Article 23 (1) BL refers to Article 79 (3) BL, which deals with limits of constitutional amendments. Article 79 (3) BL excludes the possibility of amending specific constitutional guarantees, such as the federal structure of the State or the principles laid down in Articles 1 and 20 BL. Article 1 BL renders 5

FCC, Lisbon, BVerfGE 123, 267.

Albert Ingold, Die verfassungsrechtliche Identität der Bundesrepublik Deutschland: Karriere – Konzept – Kritik, Archiv des öffentlichen Rechts (AöR) 140 (2015), 1, 6. 6

7

FCC, Solange I, BVerfGE 37, 271, 279 et seq.

8

FCC, Solange II, BVerfGE 73, 339, 387.

9

Ibid., 375 et seq.

10

Ibid., 378.

11

See generally Heiko Sauer, Staatsrecht III (4th ed. 2016), 29.

FCC, Eurocontrol, BVerfGE 58, 1, 36; Robert Uerpmann-Wittzack, Artikel 23, in: Ingo von Münch/Philip Kunig (eds.), Grundgesetz Kommentar, Vol. 1 (6th ed. 2012), 1556, 1593; adversely Sauer (note 11), 38. 12

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human dignity intangible, and Article 20 lays down general objectives such as the principle of democracy, the principle of rule of law, the social State, and the principle of republic. Plainly spoken, even the constitutional lawmaker – eventually being the German people represented by the Bundestag and Bundesrat13 – cannot change the constitution with regard to these principles.14 Therefore, an act by European authorities touching upon the constitution’s identity – i.e. the substance of Articles 1 and 20 BL – cannot have any basis in primary law and therefore cannot have any effect.15 This follows from the FCC’s conception that the EU’s legal personality, and therefore the effectiveness of its law, stems from the EU Member States, who are to be regarded as Herren der Verträge.16 In order to secure constitutional identity, the FCC claims for itself the right to engage in identity review of European law.17 The ECJ however takes a different stance: It considers the notion of national identity contained in Article 4 (2) Treaty on European Union (TEU)18 to be a relative concept, which serves as an element that “may be taken into consideration” to e.g. strike a balance between legitimate interests of the State and subjective rights under European law.19 The FCC on the other hand explicitly rejects this by arrogating an own interpretation of Article 4 (2) TEU.20 Admittedly, as an act by a State contrary to its national law still can have legal consequences in international law, an argumentation based only on national law is too narrow.21 Nonetheless, it is questionable whether general international law as manifested by Article 27 Vienna Convention on the Law of Treaties22 (prohibition to invoke its internal law as justification for the 13

See Art. 79 (2) BL and Art. 20 (2) BL.

14

FCC, Lisbon (note 5), 343.

15

Ibid., 348; id., OMT I, BVerfGE 134, 366, 384.

16

FCC, Lisbon (note 5), 348 et seq.

17

Ibid., 354.

Treaty on European Union, 13 December 2007, OJ 2008 C 115, 13, as amended by OJ 2012 L 112, 21. 18

19 See e.g. European Court of Justice (ECJ), Sayn-Wittgenstein, Case C-208/09, Judgment of 22 December 2010, para. 83. 20

FCC, OMT I (note 15), 386 et seq.

Heiko Sauer, „Solange“ geht in Altersteilzeit – Der unbedingte Vorrang der Menschenwürde vor dem Unionsrecht, Neue Juristische Wochenschrift 2016, 1134, 1136. 21

22

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331.

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State’s failure to perform a treaty) would be applicable in European law.23 Even the ECJ itself seems to differentiate general international law from EU law in affirming the latter’s domestic character.24 Still, as the FCC tries to oppose the ECJ’s concept of national identity, it can only do so by applying European law, too. Consequently, it argues that identity review does not breach the principle of loyal cooperation under Article 4 (3) TEU and is, in substance, moored in Article 4 (2) TEU.25 Since its OMT I judgment of 2014 this is smoothed out by referring to the jurisprudence of other constitutional and higher courts of EU Member States.26 However, the FCC fails to outline the normative influence of such national jurisprudence on the interpretation of EU law. If any, it could be classified as somewhat general principles, which is not any less problematic: According to ECJ jurisprudence, these need not only stem from national law or be derived from other international treaties,27 but must in fact be compatible with the structure and framework of the community.28 This framework is reflected by Article 19 (1) TEU, which confers the competence to derive general principles of law on the ECJ.29 Further, general principles have rather been derived to strengthen the legal work of the Union, such as cre-

On this matter see e.g. Bruno Simma, Self-Contained Regimes, Netherlands Yearbook of International Law 16 (1985), 111, 123; in detail cf. Paul Gragl, The Silence of the Treaties: General International Law and the European Union, GYIL 57 (2014), 375 et seq. 23

24 ECJ, Costa v. ENEL, Case C-6/64, Judgment of 15 July 1964, 1964 ECR 585, 593; id., Kadi and Barakaat v. Council and Commission, Case C-402/05 P, C-415/02 P, Judgment of 3 September 2008, para. 281 (“constitutional charter”). 25 FCC, Lisbon (note 5), 354; id., OMT I (note 15), 386; id., European Arrest Warrant (note 3), para. 44.

Id., OMT I (note 15), 387; id., European Arrest Warrant (note 3), para. 47; critically on the suitablity of the national judgments in question Claus Dieter Classen, Zu wenig, zu fundamentalistisch – zur grundrechtlichen Kontrolle „unionsrechtlich determinierter“ nationaler Hoheitsakte, Europarecht 51 (2016), 304, 312. 26

27 ECJ, Nold v. Commission, Case C-4/73, Judgment of 14 May 1974, para. 13; id., Hauer v. Land Rheinland-Pfalz, Case C-44/79, Judgment of 13 December 1979, para. 15.

Id., Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case C-11/70, Judgment of 17 December 1970, para. 4. 28

29

See Rudolf Streinz, Europarecht (10th ed. 2016), 154.

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ating fundamental rights, and to enhance the rule of law.30 They have not been used to restrict the ECJ in its functions. Even though it has been argued that the ECJ in its jurisprudence might be obliged from a common tradition within the Member States,31 this still makes clear that the ECJ is to be considered the right forum to deal with these issues. This might be the reason why the FCC abstained from categorising its comparative constitutional studies under this mode of interpretation. It only fits within the FCC’s perception of the Member States as Herren der Verträge: In the end, the effectiveness of EU law is derived from ratifying the treaties. However, in order to frame a national law reasoning by a European law reasoning, it would have been necessary to use the standards recognised under the latter. As the authority to do so lies with the ECJ, it is legally impossible for the FCC to do so. Hence, granting the Member States the last word in interpreting Article 4 (2) TEU is a non-legal but political finding.32 The FCC’s attitude on its own role in multi-layered jurisprudence seems considerably ambivalent: On the one hand it respects – at least purportedly – the ECJ’s methods of reasoning when aiming to refer to a preliminary ruling by the ECJ first, before it would render a European act invalid following identity review;33 on the other hand it claims for itself the right to interpret Article 4 (2) TEU and to decide on the conformity of identity review with European law in the first place.34

30 See examples at Bernhard W. Wegener, Artikel 19 TEU, in: Christian Calliess/Matthias Ruffert (eds.), EUV/AEUV mit Europäischer Grundrechtecharta: Kommentar (5th ed. 2016), 305, 324 et seq.

Ibid.; Koen Laenerts, Interlocking Legal Orders in the European Union and Comparative Law, International and Comparative Law Quarterly 52 (2003), 873, 878; surprisingly cautious: FCC, OMT II, 2 BvR 2728/13, 2 BvR 2729/13, 2 BvR 2730/13, 2 BvR 2731/13, 2 BvE 13/13 of 21 June 2016, para. 160; see generally on comparative constitutional reasoning in this regard Mattias Wendel, Richterliche Rechtsvergleichung als Dialogform: Die Integrationsrechtsprechung Nationaler Verfassungsgerichte in Gemeineuropäischer Perspektive, Der Staat 52 (2013), 339, 368 et seq. 31

“Judikative Kommunikationspolitik”, see relatedly Christoph Schönberger, Anmerkung, Juristenzeitung (JZ) 8 (2016), 422, 424; critical also Martin Nettesheim, Anmerkung, JZ 8 (2016), 424, 425, and 428; see also Ingold (note 6), 2 et seq. 32

33

Newly FCC, OMT II (note 31), paras. 157 et seq.

See also Dana Burchardt, Die Ausübung der Identitätskontrolle durch das Bundesverfassungsgericht: Zugleich Besprechung des Beschlusses 2 BvR 2735/14 des BVerfG vom 15.12.2015 (“Solange III”/“Europäischer Haftbefehl II”), Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 76 (2016), 527, 538. 34

504 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

III. Analysis of the Case at Hand A. Facts and Ruling

1. Facts and History of Proceedings In 1992, an American national was convicted by an Italian court in absentia to 30 years imprisonment for membership in a criminal association and drug crime. Upon issuing of a European arrest warrant, he was arrested by German authorities. Article 4a (1) Council Framework Decision35 sets out under which circumstances, in cases of trials in absentia, the executing judicial authority may refuse to execute the European arrest warrant. The Framework Decision is implemented by the Act on International Cooperation in Criminal Matters.36 According to Sections 73 and 83 of this Act, execution must be refused if it is not compatible with basic principles of the German legal system. This especially is the case if the trial leading to the conviction was carried out in absentia, unless, e.g., the person concerned will be granted a trial de novo in which all charges will be entirely reviewed within the seeking State. Moreover, the defendant must be granted a right to be present during this trial. The Düsseldorf Higher Regional Court issued an order37 to extradite the defendant. It was convinced that the above mentioned exception would not apply because according to the Italian law of criminal procedure there was merely the possibility of reinstatement upon his request. Depending on its positive adjudication, he would be granted a new hearing, which would be subject to factual and legal review. Following that, the defendant lodged a constitutional complaint with the FCC claiming a violation of his fundamental rights, primarily a violation of human dignity and his right to a fair trial.

35 Council Framework Decision 2002/584/JHA of 13 June 2002, OJ 2002 L 190, 1, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, OJ 2009 L 81, 24.

Act on International Cooperation in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen), 27 June 1994, BGBl. I, 1537, back then effective in its amendment of 20 July 2006, BGBl. I, 1721. 36

Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), Order of 7 November 2014, available at: https://openjur.de/u/873910.html (accessed on 14 May 2017). 37

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2. The FCC’s Ruling in Overview The FCC finds the complaint admissible by adding to the older general standard of Bananenmarkt38 a new individual case plausibility standard for violations of human dignity.39 On the merits it starts with reaffirming its jurisprudence on the possibility and lawfulness of identity review in general.40 Hereafter it gives an extensive and convincing material explanation why the principle of individual guilt (Schuldgrundsatz) as rooted in human dignity (Article 1 (1) BL) is violated by the Düsseldorf Higher Regional Court’s order.41 It then outlines the obligation of German courts to always respect Article 1 BL irrespective of any EU law determination, rejecting any concerns one might express in light of the ECJ’s Melloni42 Judgment.43 The last part of the FCC’s ruling is astonishing in a twofold manner: First, by delivering its own interpretation of the Framework Decision, it finds that even European law would not oblige Germany to extradite the defendant. Consequently, there shall be no reason to invoke identity review,44 rendering its preceding explanation of this concept an obiter dictum. Secondly, well aware of its actual obligation to submit the matter to the ECJ pursuant to Article 267 (3) Treaty on the Functioning of the European Union (TFEU),45 it considers its own interpretation of EU law an acte clair, making a request for a preliminary ruling superfluous.46

38

FCC, Bananenmarkt, BVerfGE 102, 147.

39

Id., European Arrest Warrant (note 3), para. 34.

40

Ibid., paras. 36 et seq.

41

Ibid., paras. 51 et seq.

42

ECJ, Melloni v. Ministerio Fiscal, Case C-399/11, Judgment of 26 February 2013.

43

FCC, European Arrest Warrant (note 3), paras. 76 et seq.

44

Ibid., paras. 84 et seq.

Treaty on the Functioning of the European Union, 13 December 2007, OJ 2008 C 115, 47, as amended by OJ 2012 L 112, 21. 45

46

FCC, European Arrest Warrant (note 3), para. 125.

506 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 B. Introducing an Individual Case Admissibility Standard

It is remarkable that the FCC found the complaint admissible because on first sight this does not seem to be in line with its Bananenmarkt ruling.47 In that case the FCC recurred on its finding in Solange II to abstain from adjudicating fundamental rights in situations determined by European law, as long as the standard to guarantee fundamental rights within the EU is essentially similar to the standard under the BL.48 It therefore concluded that constitutional complaints will be inadmissible ab initio if the statement of reasons therein does not substantially show that the general level of protection of fundamental rights in the EU is no longer essentially similar to the standard required in Solange II.49 As reaching this threshold can be qualified as practically impossible, this decision was seen as putting an end to possible adjudication of national fundamental rights in European law contexts.50 In the case at hand the FCC introduced an individual case admissibility standard for invoking identity control. If the applicant plausibly claims a violation of human dignity, the FCC will engage in identity review, regardless of its jurisprudence in Solange II and Bananenmarkt.51 This led to a discussion about the relationship between the old and new standard. It needs to be emphasised that identity review is not only linked to human dignity, as also other principles contained in Article 79 (3) BL shall be subject to review. Identity review rather follows its own rules, which leads to separate application areas of both standards, not to an abolishment of the other.52 If a simple violation of fundamental rights is claimed, the standard to apply is Bananenmarkt. If the defendant claims a qualified violation of human rights, namely their human dignity, the new individual case standard needs to be applied. To protect the Court from actio popularis, human dignity itself requires higher prima facie evidence to lead to admissibility.53 47

Id., Bananenmarkt (note 38).

48

Id., Solange II (note 8), 387.

49

Id., Bananenmarkt (note 38), 164.

50

Sauer (note 11), 192.

51

FCC, European Arrest Warrant (note 3), para. 34.

Relatedly Sauer (note 21), 1135; see also Cem Karaosmanoğlu/Björn P. Ebert, Einzelfallbezogener Grundrechtsschutz gegen EU-Akte: Abkehr von der Solange-Rechtsprechung?, Deutsches Verwaltungsblatt 2016, 875, 877; critical also Burchardt (note 34), 534. 52

FCC, European Arrest Warrant (note 3), para. 50; further Christoph Goos, Solange Zweieinhalb – Teil II, 11 February 2016, available at: https://www.juwiss.de/15-2016/ (accessed on 10 January 2017). 53

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C. Ex Ante Conformity with ECJ Jurisprudence?

The latest ECJ jurisprudence was described as pushing back Member States from exercising jurisdiction on constitutional rights.54 In this regard we shall look at the judgments of Åkerberg Fransson and Melloni. In Åkerberg Fransson – which was criticised by the FCC subsequently –55 the ECJ presented a wide understanding of its jurisdiction, in ruling the Charter on Fundamental Rights of the European Union (CFR)56 to be applicable within the “scope of Union law”.57 This shall even be the case if there is only an indirect connection to obligations arising from EU law together with a general Member State’s obligation to take “effective measures to counter illegal activities affecting the financial interests of the European Union” pursuant to Article 325 TFEU.58 Even rules of national criminal law – commonly referred to as genuine national domain59 – were seen as an implementation of European law.60 Whereas in this field national courts may have recourse to national fundamental rights, the standards of those rights are not to be lower than the standards of EU fundamental rights as interpreted by the ECJ.61 First of all, in light of the wide scope of application of national fundamental rights, some might argue that it was totally in line with Åkerberg Fransson to have recourse to Article 1 BL in the case at hand. Secondly, it was even argued that there was not any European determination at all because there would not have been any room for the principle of supremacy of EU law due to the lack of incongruence of national and European law.62 However, if we apply Åkerberg Fransson, this latter point seems 54

Cf. Sauer (note 21), 1138.

55

FCC, Antiterrordatei, BVerfGE 133, 277, 316.

Charter of Fundamental Rights of the European Union, 7 December 2000, OJ 2012 C 326, 391 (CFR). 56

57

ECJ, Åkerberg Fransson, C-617/10 P, Judgment of 26 February 2013, paras. 20 et seq.

58

Ibid., paras. 24 et seq.

Stefan Bucher, Die Bindung der Mitgliedstaaten an die EU-Grundrechtecharta bei Ermessensspielräumen, insbesondere in Fällen der Richtlinienumsetzung und unter Berücksichtigung der Folgerechtsprechung zu „Åkerberg Fransson“, Zeitschrift für Europarechtliche Studien (ZEUS) 19 (2016), 203, 220. 59

60

ECJ, Åkerberg Fransson (note 57), para. 27.

61

Ibid., para. 29.

62

Sauer (note 21), 1135 et seq.

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difficult to maintain. To address the former issue, we must additionally take into account Melloni. Since they were released on the same day and as Åkerberg Fransson refers to Melloni,63 it seems reasonable to view both judgments together.64 In Melloni, the ECJ, in a reference from the Spanish Tribunal Constitucional, essentially dealt with the scope of exceptions to a European arrest warrant with respect to trials in absentia. It held that a State may only invoke the exceptions contained in the Framework Decision, and that it would be incompatible with the principle of supremacy of EU law if a State invoked its national laws as a ground not to comply with EU law, even if part of the “constitutional order”.65 This unambiguously rejects the Tribunal Constitucional’s – and therefore also the FCC’s – approach to invoke its constitution in a human dignity context.66 Accordingly, a national court is only free to apply national fundamental rights if there is merely – like in Åkerberg Fransson – an indirect connection to EU law. If EU law exclusively deals with exceptions, the clear limit in Melloni must be applied, regardless of whatever value the Member State awards to the constitutional rule in question. The FCC attempts to relativise this clear-cut rule by distinguishing its case from Melloni,67 but ultimately recognises the ECJ’s conception that Article 4a Council Decision deals with grounds to refuse extradition exclusively.68 However, it finds itself not to be hampered from refusing extradition due to violations of Article 1 (1) BL, as human dignity – totally in line with its conceptualisation of constitutional identity – stands outside the principle of supremacy of EU law pursuant to Article 23 (1) in conjunction with Article 79 (3) BL.69 Yet this is incompatible with Åkerberg Fransson and Melloni, showing once again the FCC’s inability to rebut a reasoning based in European law when it falls back to constitutional provisions.

63

ECJ, Åkerberg Fransson (note 57), para. 29.

Christoph Safferling, Der EuGH, die Grundrechtecharta und nationales Recht: Die Fälle Åkerberg Fransson und Melloni, Neue Zeitschrift für Strafrecht 34 (2014), 545, 550. 64

65

ECJ, Melloni (note 42), para. 59.

66

Ibid., para. 20.

67

FCC, European Arrest Warrant (note 3), para. 78.

68

Ibid., paras. 79 et seq.

69

Ibid., para. 83.

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D. Identity Review as Obiter Dictum

After having engaged in an enormous effort to reissue its conceptualisation of identity review and concluding in a violation of Article 1, according to the FCC there is no need to limit the principle of primacy of EU law: It is possible to interpret the provisions of the European arrest warrant – namely Article 1 (3) Framework Decision –70 and the implementing law’s provisions in a manner compatible with Article 1 BL.71 Admittedly, it seems that the FCC hereby somewhat arrogates a verfassungskonforme Auslegung of EU law for itself. In national cases this is a well-established method in order to interpret an ordinary national provision in a manner compatible with the constitution.72 However, on the following pages of the order the FCC – although by itself –73 lays down a plausible European law standard.74 This is not to be seen as a genuine verfassungskonforme Auslegung, which is applied in circumstances where a constitutional view must be added to the misleading wording of a provision. It is rather comparable to the method the ECJ uses when it finds an isolated European law-based interpretation first before examining if this result again is compatible with the European Convention on Human Rights (ECHR)75 according to Article 52 (3) CFR.76 The FCC explicitly deems a nationally based interpretation unnecessary77 but instead uses reference to European Court of Human Rights (ECtHR) case law in order to interpret EU law.78

70

Ibid., para. 93.

71

Ibid., para. 84.

See e.g. Hans D. Jarass, Artikel 20, in: Bodo Pieroth/Hans D. Jarass (eds.), Grundgesetz für die Bundesrepublik Deutschland: Kommentar (14th ed. 2016), 512, 539. 72

73 Of course some subjective flavours are inevitable, Tobias Reinbacher/Mattias Wendel, Menschenwürde und europäischer Haftbefehl: Zum ebenenübergreifenden Schutz grundrechtlicher Elementargarantien im europäischen Auslieferungsverfahren, Europäische Grundrechte-Zeitschrift 43 (2016), 333, 343. 74

FCC, European Arrest Warrant (note 3), paras. 85 et seq.

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR). 75

76

On the ECJ’s approach see Reinbacher/Wendel (note 73), 339.

77

FCC, European Arrest Warrant (note 3), para. 107.

78

E.g. ibid., paras. 90, 98 et seq.

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One could raise the question how it is even possible for the FCC to deem the invocation of identity review unnecessary while simultaneously finding human dignity violated. According to its own jurisprudence, a constitutional complaint under Article 93 (1)(4a) BL can only be grounded in an alleged violation of national fundamental rights under the constitution, especially not in a violation of EU law.79 However, the FCC is not doing this. Its contention is that Article 1 BL – standing outside the principle of primacy of EU law – is always applicable.80 Therefore, in cases of human dignity the FCC sees a parallel jurisdiction of European fundamental rights and the BL.81 Accordingly, Article 1 BL also stands outside of its concept that it is only possible to review regular national fundamental rights where European law leaves a margin of appreciation for the German implementing authority.82

E. Acte Clair?

The FCC invokes the ECJ’s CILFIT judgment to make use of the acte clair doctrine and circumvent an obligation to refer to the ECJ under Article 267 (3) TFEU. In accordance with this doctrine a court can only abstain from submitting the question to the ECJ if it is “convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice.”83 In light of the FCC’s enormous effort and its standard setting reasoning, the actual existence of an acte clair can reasonably be doubted from an ex ante point of view,84 and – in light of the twofold

FCC, Nachtarbeitsverbot, BVerfGE 82, 259, 191; id., Kampfhunde, BVerfGE 110, 141, 145 et seq.; id., Sportwetten, BVerfGE 115, 276, 299 et seq.; generally and for counterviews Steffen Detterbeck, Artikel 93, in: Michael Sachs (ed.), Grundgesetz: Kommentar (7th ed. 2014), 1964, 1993. 79

80

FCC, European Arrest Warrant (note 3), para. 83.

81

Reinbacher/Wendel (note 73), 340.

FCC, Treibhausgas-Emissionsberechtigungen, BVerfGE 118, 79, 97 et seq.; id., BVerfGE 122, 1, 20 et seq.; id., Antiterrordatei (note 55) 313 et seq.; Julian Nowag, EU Law, Constitutional Identity, and Human Dignity: A Toxic Mix?, Common Market Law Review 53 (2016), 1441; Mathias Hong, Human Dignity and Constitutional Identity: The Solange-III-Decision of the German Constitutional Court, 18 February 2016, available at: http://verfassungsblog.de/human-dignity-and-constitutional-identitythe-solange-iii-decision-of-the-german-constitutional-court/ (accessed on 15 January 2017). 82

83

ECJ, CILFIT v. Ministry of Health, Case C-283/81, Judgment of 6 October 1982, para. 16.

84

Reinbacher/Wendel (note 73), 342 et seq.; oppositely Sauer (note 21), 1135.

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test in Aranyosi –85 entirely be denied ex post.86 Therefore, it would have been welcome if the FCC had submitted these questions to the ECJ, although the ECJ – ironically in Åkerberg Fransson – was the one to incidentally call its CILFIT jurisprudence to attention.87 Still, what remains for the FCC is that an acte clair appears the more implausible, the more effort the national court has put into its argumentation.88

F. Diluting Human Dignity?

The FCC was criticised for having diluted the concept of human dignity in substantially relying solely on Article 1 BL to establish a breach of the principle of individual guilt, whereas the right to a fair trial according to Article 2 (1) in conjunction with Article 20 (3) BL would have fit better.89 In fact, basing every concretisation of the principle of individual guilt merely on the wording “Die Würde des Menschen ist unantastbar” (human dignity shall be intangible) in Article 1 (1) BL seems problematic in relation to legal certainty (Article 20 (3) BL), if not resulting in a deterring effect on States that are about to introduce the concept of human dignity.90 On the other hand, Article 1 (3) BL itself refers to the “following” fundamental rights as directly binding. Accordingly, it has been argued that in every single fundamental right there is an intangible core of human dignity, making it possible to review this dignity core in light of Article 1 BL within identity review.91 The FCC in turn sees Article 1 BL as the root of all other fundamental rights92 and has interpreted fundamental 85

See infra, III. G.

86

Notwithstanding that an ex post view might not be relevant for the lawfulness of an acte clair.

87

ECJ, Åkerberg Fransson (note 57), para. 47.

To that extent Ulrich Karpenstein, Artikel 267, in: Eberhard Grabitz/Meinhard Hilf/Martin Nettesheim (eds.), Das Recht der Europäischen Union, Vol. III (2016), 1, 19. 88

89

Schönberger (note 32), 423 et seq.

90

Goos (note 53).

Karaosmanoğlu/Ebert (note 52), 878; Goos (note 53) sees this option in the FCC’s use of the words “higher admissibility standards”. This would have been redundant if not to grant the possibility to review the dignity cores of simple fundamental rights because it already lies in the nature – and therefore not noteworthy – of human dignity to require a higher standard of prima facie evidence; adversely Reinbacher/Wendel (note 73), 335. 91

92

FCC, Soldaten sind Mörder, BVerfGE 93, 266, 293.

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rights in light of human dignity,93 moreover even recognised an intangible core in certain fundamental rights.94 Eventually, it acknowledged the possibility to review every fundamental right’s dignity core in its later OMT II decision.95 Therefore, in the case at hand it would have been possible for the FCC to get to the same conclusion by reviewing the dignity core of the right to a fair trial. In an even more recent order the FCC was faced again with a constitutional complaint regarding a European arrest warrant: The defendant was to be extradited to the United Kingdom, facing a trial where his remaining in silence was about to be used against him. In reiterating its concept of identity review the FCC engaged in reviewing the dignity core of the right to a fair trial.96 It emphasised that – whereas there is a simple violation of the right to a fair trial – its dignity core was not affected, and therefore no violation of Article 1 BL can be established, leading to a rejection of the constitutional complaint.97 Although the right to a fair trial is explicitly rooted in human dignity,98 it in itself is only a relative right.99 Thus, we can see that the FCC engages in reviewing normal human rights in relation to the human dignity core, without focusing merely on Article 1. One way or the other, whether the FCC applies Article 1 only or whether it refers to the dignity cores of normal fundamental rights to ascertain a breach of human dignity: It is in any case faced with problems of legal certainty in defining human dignity. This is of fundamental importance because the FCC sees human dignity intangible with the effect that a violation cannot be justified by counterbalancing a conflicting rule or principle.100 Certainly, there is an ongoing scholarly debate on

93 Id., BVerfGE 53, 341, 357; id., Versorgungsausgleich, BVerfGE 53, 257, 300; id., BVerfGE 56, 363, 393. 94

Id., Großer Lauschangriff, BVerfGE 109, 279, 310 et seq.

95

Id., OMT II (note 31), para. 138.

96

Id., 2 BvR 890/16 of 6 September 2016, paras. 36 et seq.

97

Ibid., para. 41.

98

Id., Verständigung im Strafverfahren, BVerfGE 133, 168, 201.

99

Id. (note 96), para. 36.

Id., Tonband, BVerfGE 34, 238, 245; id., Großer Lauschangriff (note 94), 313; also in connection with Art. 79 (3) BL, id., OMT I (note 15), 386. 100

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whether or not human dignity is to be conceived as absolute or relative.101 However, introducing it into the fundamental rights conflict between European courts does not dilute human dignity; the FCC rather showed that it is in fact not rubber-stamping human dignity claims. What is left is the familiar problem of how to determine a violation: In light of the absolute conception of human dignity in European law,102 at least in this regard unison should be maintained.

G. The ECJ’s Response in Aranyosi: Ex Post Conformity?

In a judgment of 4 April 2016 the ECJ following a reference by the Higher Regional Court of Bremen interpreted Article 1 (3) Framework Decision, according to which the Framework Decision shall not have any effect on the obligation to guarantee fundamental rights pursuant to Article 6 TEU. According to the referring court, the defendants might face inhuman or degrading treatment in breach of Article 3 ECHR and Article 6 TEU. The ECJ first pointed out the “fundamental importance” of the principle of mutual trust and the principle of mutual recognition, namely within the realm of the Framework Decision,103 before it set out a regime of exceptions to these principles. It referred to the Member States’ obligation to comply with the CFR according to Article 1 (3) Framework Decision pointing out that Article 4 CFR must be regarded in connection with Article 51 (1) CFR.104 Corresponding to Article 3 ECHR and its absolute character,105 it emphasised the absolute character of the prohibition of inhuman and degrading treatment in Article 4 CFR and its close connection to human dignity according to Article 1 CFR.106 If the executing State finds reliable evidence of inhuman treatment in the issuing State, it must assess the situation in a twofold manner: First, it must assess the general situation with regard to See generally Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (2015), 227 et seq.; in favour of relativity Robert Alexy, Menschenwürde und Verhältnismäßigkeit, AöR 140 (2015), 497, 509 et seq.; dissenting Hong (note 82). 101

102

See Katrin Schwarzburg, Die Menschenwürde im Recht der Europäischen Union (2012), 363 et seq.

ECJ, Aranyosi and Căldăraru, Cases C-404/15, C-659/15 PPU, Judgment of 5 April 2016, paras. 78 et seq. 103

104

Ibid., paras. 83 et seq.

105

As no derogation is possible pursuant to Art. 15 (2) ECHR, ibid., paras. 86 et seq.

106

Ibid., para. 85.

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deficiencies.107 However, general deficiencies do not suffice to refuse the execution of the arrest warrant: On a second level it must specifically assure itself of the risk that the person concerned will face inhuman or degrading treatment.108 Even though the emphasis on the absolute character of Article 4 CFR and its strong connection to human dignity can be seen as a direct reaction to the FCC’s order,109 mainly abstaining from adding fuel to the fire,110 the FCC’s approach clearly fails to comply with the twofold system of the ECJ: The FCC’s exception to the principle of mutual trust in general international law – that is to omit the review of the specific individual’s situation if in the seeking State there is a general practice of gross and systematic human rights violations –111 shall also be applicable with respect to European arrest warrants if human dignity is at stake.112 The ECJ, in contrast, does not know any exception to its two-level assessment, even though in the FCC’s case not Article 4 but Articles 47 and 48 CFR were at stake.113 Due to its abstention to refer the matter to the ECJ, we do not know whether the ECJ would also uphold its twofold standard in violations of the right to a fair trial; but bearing in mind that the ECJ even upheld the high twofold standard in a context of inhuman and degrading treatment – closely connected to Article 3 ECHR and its absolute character –114 this is to be answered most likely in the affirmative. Further, according to the ECJ, evidence for assuming systematic deficiencies shall be obtained from reliable sources such as the United Nations or bodies of the Council of Europe, judgments of the 107

Ibid., paras. 88 et seq.

108

Ibid., paras. 91 et seq.

Heiko Sauer, Mit den eigenen Waffen geschlagen: Die Reaktion des EuGH auf den unbedingten Vorrang der Menschenwürde vor dem Unionsrecht nach dem BVerfG, 7 April 2016, available at: http:// verfassungsblog.de/mit-den-eigenen-waffen-geschlagen-die-reaktion-des-eugh-auf-den-unbedingtenvorrang-der-menschenwuerde-vor-dem-unionsrecht-nach-dem-bverfg/ (accessed on 11 January 2017). 109

“Welcome balance” (“begrüßenswerte Balance”), Kristina Müller, Vertrauen ist gut, Kontrolle ist besser: Einordnung des neuen EuGH-Urteils zum Europäischen Haftbefehl in das grundrechtliche Mehrebenensystem in Europa, ZEUS 19 (2016), 345, 367. 110

111

FCC, European Arrest Warrant (note 3), para. 71.

“Dies gilt […] auch für”, ibid., para. 72; with opposite reasoning but similar outcome Müller (note 110), 365; sketchy Sauer (note 21), 1137. 112

113

FCC, European Arrest Warrant (note 3), para. 97.

For its absolute character see fundamentally European Court of Human Rights, Selmouni v. France, Judgment of 28 July 1999, RJD 1999-V, 149, para. 95; also id., Gäfgen v. Germany, Appl. No. 22978/05, Judgment of 1 June 2010, para. 87. 114

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ECtHR, or even judgments of the issuing State.115 The FCC again seems to rely on its own craftsmanship in this regard. IV. Conclusion The latest jurisprudence of the FCC can be qualified as plausible only within its own realm of logical reasoning. In several regards it conflicts with European law, and when the FCC tries to safeguard its national reasoning from a European law perspective, it always shows up circular: The Member States are to be regarded as Herren der Verträge that are granted the last word in defining their national identities. Human dignity as comprised by Article 1 BL therefore becomes a kind of Grundnorm capable of overruling anything, even European law. It is in fact “gliding o’er all”.116 Even though this was established in a purportedly European friendly way – for the time being abstaining from revoking European law – there was apparently no reason to once again refine identity review. Although this again was done in a very thought-out manner: To introduce an actual European unfriendly reasoning without need results in political explosiveness if it falls into hands of States that do not in every aspect share the same value to differentiated solutions. The declared hope117 to further the people’s trust into European integration and the national State’s role therein must be regarded thwarted when the FCC’s reasoning is used to promote dubious national tendencies, as was shown most lately by the Hungarian Constitutional Court: It inter alia recurred on the FCC’s concept of identity review to legitimise less protection of human rights than under EU law.118 Facing the frequent use of “national identity” in contemporary nationalist rhetoric all over Europe, the “area of freedom, security and justice”119 seems challenged more than ever. As the FCC meant to use “national identity” to increase protection of fundamental rights, it is important to condemn any misuse of this reasoning. 115

ECJ, Aranyosi and Căldăraru (note 103), para. 89.

Borrowed from Walt Whitman, Gliding O’er All, in: Walt Whitman (ed.), Leaves of Grass (1891– 1892), 218. 116

117

Wolfgang Ewer, Was garantiert eigentlich die „Ewigkeitsgarantie“?, Anwaltsblatt 2015, 335.

Cf. Gábor Halmai, The Hungarian Constitutional Court and Constitutional Identity, 10 January 2017, available at: http://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutionalidentity/ (accessed on 15 January 2017). 118

119

See Art. 3 (2) TEU.

Deployment of Soldiers for the Protection of Nationals Abroad and Inner-State Justification: The German Federal Constitutional Court’s Decision on the Operation of German Military in Libya MAREIKE NÜRNBERG AND DAVID SCHENK

I. Introduction In the rise of civil conflicts in February 2011 and before an official mandate was provided by the United Nations (UN) Security Council,1 the German government autonomously evacuated 132 persons, among them 22 German nationals, from the small desert city Nafurah in Libya.2 The so-called “Operation Pegasus” succeeded without the use of armed force. Yet, it raised several legal question marks in regard to German domestic law and public international law. In its decision of 23 September 2015, the German Federal Constitutional Court (FCC) (Bundesverfassungsgericht) decided on the claim of a parliamentary group of the German Parliament (Bundestag) on the question whether military actions like the one at hand require the ex post approval of the parliament. The Court rejected this claim and stressed the legal admissibility of autonomous decisions of the executive to

Mareike Nürnberg is a student of law at the Christian-Albrechts-Universität zu Kiel (Kiel University) and student assistant to Professor Kerstin von der Decken (Walther Schücking Institute for International Law); David Schenk, B.A., is a student of law at Kiel University and student assistant to Professor Nele Matz-Lück (Walther Schücking Institute for International Law) as well as to Professor Sebastian Graf von Kielmansegg (Institute for Public Law and Medicine Law). 1

Security Council Resolution 1973 of 17 March 2011.

Alexander Haneke, Libyen-Einsatz der Bundeswehr: Rettung nur mit Zustimmung des Bundestages, 28 January 2015, available at: http://www.faz.net/aktuell/politik/staat-und-recht/bundesverfassungs gericht-prueft-libyen-einsatz-der-bundeswehr-13396046.html (accessed on 9 January 2017). 2

518 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

deploy armed forces in the face of urgent threats.3 This raises the question whether the operation constituted a step away from the acclaimed German approach to treat the use of force “almost exclusively [as] a question of democracy and law.”4 Apart from this issue, the FCC did not deal with the question whether such military operations to rescue nationals are generally lawful under international law due to the fact that no armed force was actually exercised.5 But since the two military aircrafts used for the evacuation were staffed with armed soldiers and mock targets,6 the question of justification under international law is not resolved yet. In opposition to the argument of the German government, the FCC only noted that there was no consent – implicit or explicit – given by the Libyan government.7 It seems as if evacuation missions that have the potential of a need for the use of force are silently accepted.8 The question arises if and to which extent actions can be justified under the doctrine of protection of nationals abroad and specifically the actions of the German forces in Libya.

II. Deployments of the German Armed Forces Under National Law A. The Facts of the Rescue Operation Pegasus Case

On 26 February 2011 two military transport airplanes of the German armed forces entered Libya to evacuate German nationals and persons of other nationalities from the premises of a German industrial firm.9 Each of the two airplanes was staffed with 3

Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 140, 160.

Russell A. Miller, Germany’s Basic Law and the Use of Force, Indiana Journal of Global Legal Studies 17 (2010), 197, 206. 4

5 Anne Peters, The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 1), 21 October 2015, available at: http:// www.ejiltalk.org/the-non-judicialisation-of-war-german-constitutional-court-judgment-on-rescueoperation-pegasus-in-libya-of-23-september-2015-part-1/ (accessed on 12 January 2017).

German Parliament (Bundestag), Answer to a minor interpellation regarding the evacuation operation ‘Pegasus’, 11 July 2011, Bundestagsdrucksachen (BT-Drs.) 17/6564, 3 et seq. 6

7

FCC (note 3), 204 et seq.

8

Christine Gray, International Law and the Use of Force (3rd ed. 2008), 159.

German Parliament, Answer to a minor interpellation regarding the deployment of armed forces in Libya, 4 April 2011, BT-Drs. 17/5359, 2. 9

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armed soldiers and mock targets for self-protection.10 The Minister of Foreign Affairs informed the chairpersons of the parliamentary groups of the Bundestag before and after the operation via telephone.11 Even though the German government requested the permission to enter Libyan air space, the Libyan government did not explicitly give such consent prior to or after the operation.12 After the evacuation mission had been accomplished, the German government argued that there was no need for the ex post approval by the parliament since the evacuation operation in Nafurah was a purely humanitarian deployment and it was clearly expected that weapons were not to be used.13 In follow-up to this position issued by the Minister of Foreign Affairs, the Green Parliamentary Group in the Bundestag seized the FCC in August 2011 with a view to reinforcing the constitutional right of the parliament to participate in the decision on the deployment of armed forces. The parliamentary group claimed that the government infringed this important parliamentary right by omitting to obtain an ex post permission of the parliament.14

B. The National Legal Framework and its Development (the Requirement of Parliamentary Approval)

To fully understand the meaning of the decision of the FCC on the evacuation mission in Libya in 2011, the evolution of its jurisprudence regarding the requirement of parliamentary approval is particularly interesting. In the early years of the 1990s after the German reunification and the final rehabilitation through the Two Plus Four Treaty,15 Germany began to play a greater role in

10

See German Parliament (note 6), 3 et seq.

11

Ibid., 3.

12

Ibid., 3.

13

FCC (note 3), 168 et seq.

14

Ibid., 171 et seq.

15

Treaty on the Final Settlement With Respect to Germany, 12 September 1990, UNTS 1992, 124.

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international conflicts again.16 Despite the prevailing view that the German Basic Law17, in particular Article 87a (1) Basic Law, only allowed the deployment of armed forces for the purpose of defending German or North Atlantic Treaty Organization (NATO) territory, Germany increased the deployments of its armed forces beyond this purpose, for example in Bosnia-Herzegovina, Somalia, and Serbia-Montenegro.18 This progressing international integration of Germany was first addressed by the FCC in its famous Airborne Early Warning and Control System (AWACS)/Somalia decision in 1994.19 It marks the foundation of the constitutional requirement of parliamentary approval which the Court based on an analogy from the constitutional history.20 By basing the parliamentary prerogative directly on constitutional law, the Court limited the government in its use of the armed forces, however, at the same time confirming the constitutionality of the government’s new deployment practice going beyond the purpose of defence.21

1. The German Statute on Parliamentary Participation In order to codify the constitutional case law on this matter, the German Statute on Parliamentary Participation (Parlamentsbeteiligungsgesetz) (ParlBG)22 was drafted and entered into force in March 2005.23 It guarantees the implementation of the

16 Andreas L. Paulus/Henrik Jacobs, Neuere Entwicklungen bei der Parlamentsbeteiligung für den Auslandseinsatz der Bundeswehr, Die Friedens-Warte: Journal of International Peace and Organization 87 (2012), 23, 31; Miller (note 4), 201. 17 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) I, 1 as amended on 23 December 2014, BGBl. I, 2438. 18

Miller (note 4), 201 et seq.

19

FCC, BVerfGE 90, 286.

20

Paulus/Jacobs (note 16), 31 et seq.

21

Miller (note 4), 202.

German Statute on Parliamentary Participation (Parlamentsbeteiligungsgesetz), 18 March 2005, BGBl. I, 775. 22

23

Peters (note 5).

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parliamentary approval in practice.24 It is noteworthy that the Statute only has subordinate status in relation to the prevailing determinations of the FCC.25 The core provision of the Statute is the definition on the “deployment of German armed forces” which triggers the need for parliamentary approval (Section 1 (2) ParlBG). According to Section 2 (1) ParlBG, “[a] deployment of armed forces is present when soldiers of the German army are involved in armed undertakings or when the involvement in an armed undertaking is to be expected.” Exceptions to this are only preparatory activities and planning as well as “humanitarian assistance and services of the armed forces in which case weapons are only carried for self-defence if it is not expected that the soldiers will be involved in armed undertakings” (Section 2 (2)(3) ParlBG).26 In the context of Operation Pegasus, subsequent to the evacuation from Nafurah, the Minister of Foreign Affairs pointed out the humanitarian character of the deployment27 and, thus, referred to this provision. He claimed that Operation Pegasus was not a deployment that triggers parliamentary participation rights.28

2. AWACS II Uncertainties regarding what constitutes a “deployment” in the sense of the Basic Law remained, in particular in the context of Germany’s involvement in alliance systems. It was addressed by the FCC in its AWACS II decision in 2008 regarding the involvement of German soldiers in an aerial surveillance mission of the NATO above Turkish territory.29 24 Ulrich Hufeld, Stellungnahme zur Fortentwicklung der parlamentarischen Beteiligung bei der Entscheidung über den Einsatz bewaffneter Streitkräfte im Ausland, Anhörung zum Gesetzentwurf der Fraktionen der CDU/CSU und SPD (BT-Drucks. 18/7360) im Ausschuss für Wahlprüfung, Immunität und Geschäftsordnung des Deutschen Bundestages am 13. April 2016, 6 April 2016, available at: https://www.bundestag.de/blob/418844/cf5b54aedde68d6dd7aac2b1a8b5d3c3/hufeld-data.pdf (accessed on 12 January 2017), 1. 25

Ibid., 1.

26

Translation by the authors.

27

FCC (note 3), 168.

28

Ibid.

29

FCC, BVerfGE 121, 135.

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The FCC determined a negative threshold for the “deployment” criterion by relying on the term of a “well-founded expectation”, meaning that a deployment requires approval if the objective of the specific mission, the political and military circumstances, and the scope of the deployment powers point to the use of armed force and the concrete expectation of German soldiers to be involved in it.30 The denomination of a mission is, however, irrelevant for the actual determination of such circumstances, for example when trivialised by calling it an “alliance routine”.31 Eventually, the Court found a violation of the constitutional parliamentary prerogative even though it had rejected interim measures in its earlier decision on that matter in 2003.32 It reaffirmed that decisions on deployments should be made “only on the basis of the essential approval of the German Bundestag”.33 Consequently, the German armed forces are generally regarded as “Parlamentsheer” (Parliamentary Armed Forces).34

C. The Novelties of the Rescue Operation Pegasus Judgment

In the Pegasus decision, the FCC consequently applied the principles established in its AWACS I and II decisions. It found that there was “a well-founded expectation” that German soldiers could be involved in armed hostilities.35 Based on this, it found that the evacuation operation in Libya constituted a deployment of armed forces in the sense of the Basic Law – contrary to the claim of the Foreign Office and the Minister of Foreign Affairs.36 Since the deployment powers of the troops went beyond self-defensive purposes and there was an actual danger of a military attack, the FCC was convinced of sufficient evidence and proximity to the potential use of force.37 In doing so, it pointed out the limits of the executive prerogative. Not even in 30

Ibid., 165 et seq.

31

Ibid.

32

Id., BVerfGE 108, 34.

33

Id. (note 29), 163.

34

Ibid., 161.

35

Id. (note 3), 203.

36

Ibid.

37

Ibid., 207 et seq.

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situations of emergency, as in this case, the executive can be granted the authority to interpret whether there is a deployment of armed forces.38 In fact, the prerogative of the executive in foreign policy decisions is restricted whenever a deployment of armed forces is at issue.39 Thus, the government’s effort to hush up Operation Pegasus as a humanitarian action was unsuccessful. The terminology used by the government was irrelevant for the actual quality of the deployment – as already found in AWACS II. The Court also reiterated the important role of the parliament: The government in general may not independently decide whether armed forces should be deployed.40 Yet, the decision is also viewed as being “in tension with the Court’s insistence on an otherwise joint and unified power of Government and Parliament” (“Entscheidungsverbund”)41.42 Indeed, the Court drew a clear line between the precept of co-decision prior to a deployment and the exclusive competence of the government to act on its own in cases of emergency. The Court concluded that co-decision, which is the purpose of parliamentary approval,43 is not required if a rescue operation that was conducted on the basis of such governmental urgency powers is already over.44 It affirmed that this is a temporary exception from the obligation to make a joint decision together with the parliament and that, in principle, there is a parliamentary participation right even if the government acts on the basis of its emergency competence.45 Yet, after the conclusion of the operation an ex post refusal of the parliament would only result in the ex tunc unlawfulness.46 But it is exactly this authority to assess the legality of an oper38

Ibid., 189 and 197.

Paulina Starski, Wenn das Kind im Brunnen liegt: Ex-post-facto-Kontrolle des Bundestags beim Einsatz bewaffneter Streitkräfte, Verfassungsblog, 5 September 2015, available at: http://verfassungsblog. de/wenn-das-kind-im-brunnen-liegt-ex-post-facto-kontrolle-des-bundestags-beim-einsatz-bewaffneterstreitkraefte/ (accessed on 20 December 2016). 39

40

FCC (note 3), 189.

41

Ibid., 194.

Anne Peters, The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 2), 22 October 2015, available at: http:// www.ejiltalk.org/the-non-judicialisation-of-war-german-constitutional-court-judgment-on-rescueoperation-pegasus-in-libya-of-23-september-2015-part-2/ (accessed on 12 January 2017). 42

43

Ibid.

44

FCC (note 3), 200 et seq.

45

Ibid., 196.

46

Ibid., 200 et seq.

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ation which lies solely in the hands of the FCC.47 The novelty of the judgment, the rejection of an obligation of the government to seek ex post approval by the parliament, was therefore only logical. The decision should not be interpreted as a step away from the original concept of a “Parlamentsheer”. The democratic process is still well protected through the FCC’s consequent allocation of powers among the parliament, the government, and itself. The strength of this judgment lies in striking the right balance. It also emphasised the parliament’s right to be properly informed about all matters regarding the ongoing emergency operation.48 Apart from these findings, the Court did not specifically deal with the question whether Operation Pegasus was generally lawful under public international law. However, or precisely for that reason, the question may be asked whether the decision of the FCC contributes to a customary right of States to protect nationals abroad. Thus, the contentious issue of a right to protect nationals abroad under public international law in general ought to be discussed first.

III. The Doctrine of the Protection of Nationals Abroad A. Overview

In international law, the ‘doctrine of the protection of nationals abroad’ is a widely discussed issue being the focus of justification for military operations such as the Russian intervention in South Ossetia in August 2008 or the Canadian operation in order to rescue 14,000 citizens in Lebanon in July 2006.49 In order to determine whether Operation Pegasus was legal under current international law it is pertinent to elaborate on the developments regarding military operations in order to rescue a State’s citizens and thereby having a deeper look at their status under customary international law. That is necessary in particular because German military was autho-

47

Ibid.

48

Ibid., 202.

Andrew W.R. Thomson, Doctrine of the Protection of Nationals Abroad: Rise of the NonCombatant Evacuation Operation, in: Washington University Global Studies Law Review 11 (2012), 627, 628. 49

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rised to use force in self-defence while not explicitly relying on Article 51 Charter of the United Nations (UNCh)50.51 Already Sir Humphrey Waldock has set up certain criteria to be looked at before launching rescue operations in the sense of the doctrine. If those criteria are met, he argues, a right to protect nationals abroad can be presumed. The first prerequisite is the imminent threat of injury to nationals followed by the inability or failure on the part of the territorial sovereign to protect those nationals. Lastly, Waldock demands that the measures of protection taken shall be strictly linked to the object of protecting the nationals against harm.52 In that context, he does not mention – likely because he implied that step to be taken before all others – the possibility of an operation backed by the foreign authorities (consent), which would be without legal problems in terms of justification.53 If consent is not given or cannot be requested in due time, a State shall notify the entered State. If State power has collapsed and there are no official authorities to be asked, the entering State shall coordinate its operation with the other parties to the conflict. These criteria can be furthermore expanded by other prerequisites such as the neutral nature of the operation and the fact that those operations may not be used to achieve goals other than the sole evacuation of nationals abroad. Moreover, weapons may only be carried for the purpose of self-defence.54

B. Customary International Law Status

It is argued that the protection of nationals abroad is a result of self-defence pursuant to Article 51 UNCh. Therefore, it does not – in cases where force is used or threatened – constitute a violation of Article 2 (4) UNCh.55 That exception from a 50

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

51

FCC (note 3), 162.

Humphrey Waldock, The Regulation of the Use of Force by Individual States in International Law, Recueil des Cours 81 (1952), 455, 467. 52

53 Tom Ruys, The ‘Protection of Nationals’ Doctrine Revisited, Journal of Conflict & Security Law 13 (2008), 233, 235. 54

Andreas von Arnauld, Völkerrecht (3rd ed. 2016), 502 et seq.

55

Thomson (note 49), 629.

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violation of the prohibition of use of force is given especially in cases of freeing nationals from hostage-taking situations as they often involve the use of force (since hostage-takers usually respond with violent resistance).56 Another point of view refers to a simple evacuation operation lacking the intention of the operating State to use or to threaten force and therefore not falling within the scope of the UNCh.57 Those considerations need to be viewed in the light of customary international law. Even if the right to protect nationals abroad is presumed as custom in terms of an invocation of Article 51 UNCh by some authors,58 others say that such a right is still disputed or at least subject to an ongoing development.59 Customary international law as a source of international law pursuant to Article 38 (1)(b) Statute of the International Court of Justice60 encompasses State practice and opinio iuris. State practice is the “constant and uniform” application of a rule61 – written or unwritten – as the material behaviour of a State.62 Opinio iuris, on the other hand, is the belief that the State is acting according to a rule and that it has a legal obligation to do so.63 The UN Charter does not explicitly mention nor exclude the right to protect nationals abroad. Thus, references need to be made to cases where both approaches have been invoked64 even though there are just a few instances.65 Among those cases where force has been used and the prohibition of the use of force has been excused by an invocation of Article 51 UNCh, the Suez Crisis of 1956 stands out. During that crisis the United Kingdom (UK) – along with the initial support of Israel and later France – interfered in Egypt claiming that its nationals were 56

von Arnauld (note 54), 502.

57

Ruys (note 53), 235.

58

Thomson (note 49), 629.

59

von Arnauld (note 54), 502.

60

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355.

International Court of Justice (ICJ), Asylum Case (Colombia v. Peru), Judgment of 20 November 1950, ICJ Reports 1950, 276 et seq. 61

62

Malcolm N. Shaw, International Law (7th ed. 2014), 52 et seq.

63

Ibid., 53.

Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (1985), 19; Ruys (note 53), 238. 64

65

Gray (note 8), 156 et seq.

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threatened and that therefore a protection of nationals abroad referring to Article 51 UNCh was legitimised. In fact, there had not been a concrete and imminent threat to the nationals and the bombing of Egyptian airports went far beyond what the UK has claimed to be a peacekeeping mission. Most commentators therefore regarded the mission as a clear abuse of the doctrine.66 Another example for the use of force during a rescue operation is Operation Entebbe. After terrorists had hijacked an airplane on its way from Israel to France in 1976, Israel sent soldiers to Entebbe in Uganda, where the airplane had finally landed, in order to free the hostages kept in the plane. Without Ugandan consent the soldiers executed the plan and, in the course of it, killed the hijackers as well as three passengers, wounded some Ugandan soldiers, and destroyed several airplanes. The remaining hostages were freed.67 Israel defended itself with a right to protect its nationals “in mortal danger” even outside its own territory.68 The United States (US) backed that position heavily.69 Many other States contested that view and argued that – even if there had been an imminent threat to the lives of the hostages and even if the operation was aimed only at rescuing them – Israel was harming Uganda’s territorial integrity. They mentioned that Israel did not give Uganda an adequate chance to play a positive role and liberate the hostages on its own (thereby referring to the third criterion of Waldock).70 In the Grenada case of 1983 the US sent soldiers to the island after a socialist coup was successful. Claiming that US citizens were in danger the US rescued US Americans and then stayed on the island in order to oversee the installation of a new government. The US claimed not only a protection of nationals but also a general peacekeeping mission. There is profound doubt that US citizens were in imminent danger. It was more likely that the US were following very own interests.71 Thomas C. Wingfield/James E. Meyen (eds.), Lillich on the Forcible Protection of Nationals Abroad, In Memory of Professor Richard B. Lillich, Naval War College, International Law Studies 77 (2002), 98; Ruys (note 53), 239. 66

David J. Gordon, Use of Force for the Protection of Nationals Abroad: The Entebbe Incident, Case Western Reserve Journal of International Law 9 (1977), 117, 117 et seq. 67

68

UN Security Council, 1939th Meeting, UN Doc. S/PV.1939 (1976), paras. 105–121.

69

Id., 1941st Meeting, UN Doc. S/PV.1941 (1976), paras. 77–81.

70

Ruys (note 53), 249 et seq.

Joseph H. Weiler, Armed Intervention in a Dichotomized World: The Case of Grenada, in: Antonio Cassese (ed.), The Current Legal Regulation of the Use of Force (1986), 241; Gray (note 8), 157 et seq. 71

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Similar to Grenada, the US intervened in Panama in 1989 and here extensively referred to the doctrine. After a long good relationship with dictator Manuel Noriega, President George Bush Sr. had ordered troops to invade Panama after a US citizen had been wounded at a border post and died a few days after that incident. Prior to that, the relationship deteriorated and US diplomacy was unable to resolve the tensions between both States. It turned out that the US were interested in the installation of a new government and reasonable doubt existed as to the threat to US citizens.72 In the most recent case of an invocation of the doctrine, Russia – after intervening in Eastern Ukraine and Crimea – first relied on the doctrine with the respective rights deriving from the UN Charter and then withdrew that point of view and instead justified its conduct with an “intervention by invitation”73 as the government of the independent region of Crimea (which was established later in the conflict) asked for an intervention.74 As there has been definitely no imminent threat to the lives of Russian citizens (and even though their identity might be unclear as most of them still had Ukrainian papers) this justification failed on all grounds.75 That might have been the reason why Russia later withdrew that conception.

C. Assessment and Outlook

Following from the cases discussed above, some major players on the international parquet such as the United States, the United Kingdom, France, and Israel take the view that a right to protect nationals abroad is to be derived from the UN Charter and that Article 51 UNCh can be invoked subject to the fulfilment of the Waldock criteria.76 The doctrine has been invoked by States which in fact have used force or were willing to use force. This being evidence of customary international law is 72

Gray (note 8), 158.

Sina Etezazian, Ukraine Insta-Symposium: The Crisis in Crimea – The Protection of Nationals Abroad and the Legality of Ukraine’s Possible Use of Force in Self-Defence, 9 March 2014, available at: www.opiniojuris.org/2014/03/09/ukraine-insta-symposium-crisis-crimea-protection-nationals-abroadlegality-ukraines-possible-use-force-self-defense/ (accessed on 7 January 2017). 73

Christian Marxsen, The Crimea Crisis, An International Law Perspective, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 74 (2014), 367, 367 et seq. 74

75

Etezazian (note 73).

76

Ruys (note 53), 259 et seq.

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problematic insofar as the General Assembly, inter alia, has condemned the actions taken by the US in the Panama and Grenada cases77 and a universal approach of States to that concept can hardly be endorsed. And even if that condemnation was to be seen in connection with the fact that the US (among others) intended not only to rescue its citizens but to influence internal matters of the respective States, many States disregarded a right to protect its nationals abroad in the sense of Article 51 UNCh as such78 or did not even comment on the possibility to have such a right.79 In the Entebbe case many States have contested such a right in general as well, even though almost all criteria, as laid down before, were met.80 And finally, even if there is such a right, some authors claim that the actions must comply with the principles of necessity and proportionality.81 In that sense the aforementioned cases do not meet these requirements and exceeded what might be necessary under international law.82 In conclusion, a right to protect nationals abroad is a highly controversial but very important issue. It appears to be a logical approach to assume that such a right still does not exist (as for lack of a universal State practice not even to mention a common belief in that concept) but that the evacuation of nationals abroad without the use of force can be seen as possible intervention off the tracks of the UN Charter. Hence, the doctrine may not be construed on the textual basis of the UN Charter. It should instead – as other authors suggest – be transferred into a ‘non-combatant evacuation’ operation with the clear wording of ‘evacuation’. That would give no possibility or at least little chance to misinterpret the concept as it happened so far.83 If following that approach, States shall first try to obtain the consent of the State interfered with and, where this is not possible, at least notify that State and then launch a protection operation with the initial intention only to rescue and not to militarily interfere. That was the case in the “Libelle” incident, Germany’s first rescue operation. After public The resolution on Grenada was passed 108-9-27, see General Assembly (GA) Res. 38/7 of 31 October 1983; the resolution on Panama was passed 75-20-40, see GA Res. 44/240 of 29 December 1989; as well as Gray (note 8), 158. 77

78

Ruys (note 53), 261 et seq.

79

Ibid., 262 as well as Gray (note 8), 157.

See here also the opinion of Ian Brownlie and Peter Kabatsi in International Law Commission, Yearbook of the International Law Commission 2000, Vol. I, 42, 49. 80

81

Thomson (note 49), 629; Etezazian (note 73).

82

For Russia’s intervention in Georgia see for example Etezazian (note 73).

83

Ruys (note 53), 267.

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order collapsed in Albania, German troops flew to Tirana, the capital of Albania, in March 1997 and evacuated over 20 Germans and 95 other nationals. In the course of the operation German troops exchanged fire with Albanian gunmen and left some wounded. It was reported that Germany could not get in contact with Albanian authorities in due time and that the consent, therefore, was implied.84 In that sense, Germany has set up rules for evacuation operations very early, explicitly mentioning that those operations must be proportionate and evacuation-based only.85 If the international community of States is still not willing to accept such an approach, States interfering into the affairs of other States may always rely on Article 51 UNCh exculpating them from a violation of Article 2 (4) UNCh. Therefore, misuse of the concept as has taken place, for example, in the Russo-Georgian War 2008 when Russia issued identity papers for citizens of the region of South Ossetia and then claimed that it had to protect its ‘new’ nationals abroad,86 could happen easily. Hence, if the concept is narrowed down, these States are either forced to refrain entirely from such illegal uses of force or justifications on their side must be much more persuading not to raise serious resistance within the international community. And even if a universal conviction of law might not exist, a State may at any time impose countermeasures on the State in which its nationals are located insofar as that State is not engaged enough in helping those nationals,87 in accordance with the International Law Commission’s Articles on State Responsibility.88

84 Stefan Talmon, Changing Views on the Use of Force: The German Position, Baltic Yearbook of International Law 5 (2005), 41, 71 et seq.; Hans-Joachim Heintze, Territoriale Integrität der Staaten: Fortbestehende Grundlage des Völkerrechts: Untersuchung vor dem Hintergrund des Berg-KarabachKonflikts zwischen Armenien und Aserbaidschan (2016), 50; Christian Hillgruber, Art. 87a GG: Streitkräfte, in: Dieter C. Umbach/Thomas Clemens (eds.), Grundgesetz: Mitarbeiterkommentar und Handbuch (2nd ed. 2002), 849, 859. 85 Federal Ministry of Defence (Bundesministerium der Verteidigung), Handbuch für Einsätze und Verwendungen der Bundeswehr im Frieden außerhalb des Hoheitsgebietes der Bundesrepublik Deutschland (1997), Part C, 102. 86

Ibid.

87

Shaw (note 62), 577 et seq.

ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 88

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531

IV. Conclusion With regard to Operation Pegasus there has been no objection to the conduct of Germany on the international level. The operation was meant to be a sole evacuation operation without the intention to use force and has been conducted in such a way. It is to be seen in line with other interventions which were not contested by the international community as it has been an evacuation of persons only.89 Hence, Article 51 UNCh would not have been applicable here. In the light of international law the German military operation in Libya is therefore to be seen as an operation in the frame of a consistent development of the evacuation of nationals abroad towards to a somewhat customary international law-based concept with the restrictive intention not to use force. Even if Article 51 UNCh had been invoked, applying the criteria laid down above, Germany has acted in accordance with such, notably the neutral character of the operation, the imminent threat to the German nationals, the inability of Libyan authorities to resolve the imminent threat (respectively that there were no authorities anymore being capable of doing so)90 as well as the fact that the deployed soldiers carried weapons only for the purpose of self-defence.91 Operation Pegasus can be perceived as a case of State practice and, more importantly, a spell-out of Germany’s opinio iuris regarding a right of protection of nationals abroad: The legal basis, more precisely the emergency competence of the government to deploy forces in case of imminent danger (Section 5 (1) ParlBG), the application of the law by the executive, and the FCC’s general authorisation of the evacuation mission in Libya suggest so. This corresponds with the position taken already in 1994 by the Federal Ministry of Defence in context of the considerations of a deployment to rescue employees of the Deutsche Welle from the imminent dangers posed by the civil war in Rwanda. The Ministry found rescue missions to be in compliance with international law as well as

89

Ruys (note 53), 238.

90

FCC (note 3), 163 et seq.

91

See German Parliament (note 6), 3 et seq.

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constitutional law.92 Another instance of State practice can be seen in the evacuation of German nationals in Albania 1997 (see supra, III. C.). At that time Germany already set up rules for evacuation operations and explicitly based those operations on the purpose of rescuing and not interfering. Therefore, Germany showed and is still showing that it did not follow any intentions other than the rescue of nationals which, as set out, is a crucial element for the affirmation of non-combatant evacuation operations. It is questionable whether a right to evacuate could also extend to the use of force according to German opinio iuris. In regard to Operation Pegasus, it is notable that the government’s primary line of argument relied on the assessment that the situation in Nafurah did not require the use of force. However, the FCC found that there was “deployment” in the sense of the Basic Law because of the actual danger of entanglement in an armed conflict. The judgment confirms that use of force to protect German nationals abroad was factored in the decision of deployment and finds it permissible at least as a last resort. Thus, the German opinio iuris comprises the use of force as a legitimate measure, yet restrained for emergency situations. If the doctrine on the protection of nationals abroad is understood in a restrictive way tailored only to situations of a State’s breakdown and in the event that no consent for an intervention by invitation is possible, Operation Pegasus can be viewed as a good example for State practice that remains within such strict bounds. The right to parliamentary participation is significant in terms of legitimacy. Since the procurement of legitimacy is one of the noblest tasks of parliament,93 future evacuation deployments, provided that the parliament approved them, can be a more persuasive expression of opinio iuris. The principles of co-decision and parliamentary participation as integral part of the ‘war powers’ of Germany enhance legitimacy and thus increase the value of State practice and opinio iuris for a right to protect nationals abroad.

The Federal Ministry of Defense assumed “dass die Rettung deutscher Staatsangehöriger dem Völkerrecht entspricht und unter dem Gesichtspunkt der Schutzpflicht des Staates für in Lebensgefahr geratene Bürger auch staatsrechtlich zulässig ist”, Press Release of 18 April 1994, cited in Dieter Blumenwitz, Der Einsatz deutscher Streitkräfte nach der Entscheidung des BVerfG vom 12. Juli 1994, Bayerische Verwaltungsblätter 125 (1994), 678, 679. 92

93

Hufeld (note 24), 4.

The German Federal Constitutional Court’s First Reference for a Preliminary Ruling to the European Court of Justice: A 2016 Follow-Up BERENIKE SCHRIEWER

On 21 June 2016, a judgment1 by the German Federal Constitutional Court (FCC) brought the conclusion to judicial proceedings that in 2014 had premiered the FCC’s first reference2 for a preliminary ruling to the European Court of Justice (ECJ). The proceedings in question dealt with the Outright Monetary Transactions (OMT) programme of the European Central Bank (ECB).3 Central to the case was the Decision of the Governing Council of the ECB of 6 September 2012 on Technical Features of Outright Monetary Transactions (OMT Decision) which had been announced via a press release.4 In its referral decision, the FCC had raised the question of whether the OMT Decision was compatible with the See Berenike Schriewer, The German Federal Constitutional Court’s Reference for a Preliminary Ruling to the European Court of Justice, German Yearbook of Internaional Law 57 (2014), 701, with further references to the literature and a detailed description of both the German Federal Court’s reference as well as the factos of the case. Attorney. 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 21 June 2016, available at: https://www.bundes verfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/06/rs20160621_2bvr272813.html (accessed on 17 January 2017) (Judgment). 1

2 FCC, 2 BvR 2728/13, 2 BvR 2729/13, 2 BvR 2730/13, 2 BvR 2731/13, 2 BvE 13/13 of 14 January 2014, reprinted in: Neue Juristische Wochenschrift (NJW) 2014, 907; English translation available at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2014/01/ rs20140114_2bvr272813en.html (accessed on 17 January 2017) (Referral Decision). 3

See Schriewer (note 1), 708 et seq.

European Central Bank (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/pr 120906_1.en.html (accessed on 17 January 2017). 4

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ECB’s monetary policy mandate. Thus, the distinction between monetary policy (for which the EU has exclusive competence)5 and economic policy (which primarily falls into the competence of the Member States)6 was crucial for the case.7 In its referral decision, the FCC had also raised the question of whether the OMT Decision was to be qualified as a manifest and structurally significant ultra vires act.8 On a deeper level, the outcome of proceedings therefore had relevance for determining the general relationship between the FCC and the ECJ which – over the decades – has been marked by complexity9 and differing levels of cooperation.10

I. Procedural History The OMT proceedings before the FCC consisted of four constitutional complaints (Verfassungsbeschwerden) and an action initiated by the left parliamentary group “Die Linke” against the Bundestag (Organstreitverfahren). According to the FCC’s assessment in its referral decision, the complainants and the applicant specifically challenged (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.11 In its decision of 14 January 2014, the FCC suspended these proceedings. Pursuant to Article 19 (3)(b) Treaty on European Union,12 Article 267 (1)(a) and (b) Treaty on the Functioning of the European Union (TFEU),13 it referred a series of Art. 3 (1)(c) Treaty on the Functioning of the European Union, 13 December 2007, OJ 2012 C 326, 47 (consolidated version) (TFEU). 5

6

Arts. 2 (3), 5 (1), 120 et seq. TFEU.

7

FCC, Referral Decision (note 3), paras. 61–63.

8

Ibid., para. 33.

9

See Schriewer (note 1), 703 et seq.

Massimo Starita, Openness Towards European Law and Cooperation with the Court of Justice Revisited: The Bundesverfassungsgericht Judgment of 21 June 2016 on the OMT Programme, European Papers 1 (2016), 395. 10

11

FCC, Referral Decision (note 3), para. 1.

12

Treaty on European Union, 24 December 2002, OJ 2012 C 326, 13 (consolidated version).

13

See supra, note 6.

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questions to the ECJ for a preliminary ruling.14 The referral decision revolved around the question of whether the OMT Decision is incompatible with Article 119 and Article 127 (1) and (2) TFEU and with Articles 17–24 Protocol of the Statute of the European System of Central Banks and of the European Central Bank15 because it exceeds the ECB’s monetary policy mandate.16 The FCC concluded that the OMT Decision is likely not covered by the ECB’s mandate because it primarily constitutes an economic policy act.17 However, in its judgment of 16 June 2015, the ECJ held that the OMT programme is covered by the ECB’s mandate. 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. 18

It remarked that a programme such as the one announced by the OMT Decision falls into the area of monetary policy.19 In arriving at this assessment, the ECJ primarily relied on the programme’s objectives; it also mentioned the relevance of the instruments the measure employed.20

II. The FCC’s Judgment of 21 June 2016 In its judgment of 21 June 2016, the FCC dealt with the dispute underlying the reference to the ECJ. It declared the constitutional complaints admissible only insofar as they were directed against the failure of the German federal government to act

14

FCC, Referral Decision (note 3), para. 15.

Protocol of the Statute of the European System of Central Banks and of the European Central Bank, OJ 2012 C 326, 320. 15

16

FCC, Referral Decision (note 3), paras. 55 et seq.

17

Ibid., para. 65.

European Court of Justice (ECJ), Peter Gauweiler and Others v. Deutscher Bundestag, Case C–62/ 14, Judgment of 16 June 2015, para. 127. 18

19

Ibid., para. 56.

20

Ibid., para. 46.

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against the OMT Decision.21 Similarly, it found that the application for the Organstreit proceedings was admissible only to the extent to which it aimed at the declaration that the Bundestag is obliged to work towards a revocation of the OMT Decision.22 To the extent that the constitutional complaints and the application for Organstreit proceedings were admissible, the FCC held them to be unfounded.23 It stated that if the conditions formulated by the ECJ in its judgment are met, the complainants’ rights under Article 38 (1) cl. 1, Article 20 (1) and (2) in conjunction with Article 79 (3) Basic Law (Grundgesetz)24 are not violated by the fact that the federal government and the Bundestag have not taken suitable steps to revoke or limit the effect of the OMT Decision.25 It also held that the Bundestag’s rights and obligations with regard to European integration, including its overall budgetary responsibility, are not impaired. In its judgment, the FCC described its serious concerns about the manner of judicial specification regarding the way the facts of the case were established, the way the principle of conferral was discussed, and the way the judicial review of acts of the ECB that relate to the definition of its mandate was conducted.26 More specifically, the FCC criticised that the ECJ accepts the assertion that the OMT programme pursues a monetary policy without questioning the soundness of the underlying factual assumptions.27 Furthermore, the FCC inter alia disapproved of the ECJ essentially relying on the objectives of the measure as indicated by the ECB in its qualification of the OMT programme as an instrument of monetary policy.28 The FCC also criticised the ECJ for not addressing that the independence granted to the ECB leads to a noticeable reduction in the level of democratic legitimacy of its actions, as well as

21

FCC, Judgment (note 2), para. 76.

22

Ibid.

23

Ibid., para. 114.

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 (BL). 24

25

FCC, Judgment (note 2), para. 174.

26

Ibid., para. 181.

27

Ibid., para. 182.

28

Ibid., para. 183.

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the resulting necessity for a restrictive interpretation and a particularly strict judicial review of the ECB’s mandate.29 Despite these concerns, the FCC held that the OMT Decision (if interpreted in accordance with the ECJ’s judgment) does not manifestly exceed the competences attributed to the ECB.30 III. Evaluation An evaluation of a case as complex as the one at hand deserves a careful approach. It is not without reason that, as a critic remarked “the Court takes months and months to decide, […] the two senior judges dissent and […] the economics and central bank specialist are unable to find a consensus […].”31 Thus, it may be unrealistic to assume that an outside observer could adequately grasp the full extent of the questions at play. In terms of the relationship between the two courts, several aspects in this case warrant attention. One of them is the fact that over half a century after this procedure was created, there is now a precedent for a reference for a preliminary ruling by the FCC to the ECJ.32 What stands out about this reference is what Advocate General Cruz Villalón in his opinion described as its “‘functional difficulty”33 which relates to the problem of a national court’s reference already including “the possibility that it will in fact depart from the answers received.”34 And while the FCC concluded in its judgment that the constitutional complaints and the application for Organstreit proceedings were unfounded and thus in principle did not depart from the ECJ’s preliminary ruling, it also did not refrain from addressing the ECJ’s arguments in depth, critically evaluating its reasoning, and stating areas of concern. A commentator interpreted the FCC’s approach as seeming “to challenge the principle of the CJEU’s 29

Ibid., para. 187.

30

Ibid., para. 197.

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, 138. 31

32 See Art. 177 Treaty establishing the European Economic Community, 25 March 1957, BGBl. 1957 II, 766, also available in all official languages of the founding States via: http://eur-lex.europa. eu/legal-content/EN/TXT/?uri=CELEX:11957E/TXT (accessed on 16 March 2017). 33

ECJ (note 16), Opinion of Advocate General Cruz Villalón of 14 January 2015, paras. 33 et seq.

34

Ibid., para. 36.

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exclusive competence of declaring invalidity of EU acts,”35 while also acknowledging that it is not clear if it establishes a “general principle of relationship with the [ECJ]”36 or if it is merely “a unique solution applicable to the specific circumstances of the case.”37 It could be the latter: As the legal representative of one of the claimants in the case remarked, the FCC often takes a “yes-but” approach in high profile, political cases which concern the European integration.38 However, in the case at hand the FCC was incapable of making a “yes-but” decision since, unlike the ECJ, it cannot place conditions on the ECB.39 In evaluating the outcome of the proceedings, it is noteworthy to remember that the initial reference had caused several commentators to be concerned about a “game of chicken” between the FCC and the ECJ.40 By that they specifically referred41 to the classic scene in the movie “Rebel Without a Cause” where two adolescents, Jim (portrayed by James Dean) and Buzz, race their respective cars towards an abyss. The first one to shy away from the danger by jumping out of the car or braking loses the game. The gravity of this comparison shows the level of concern some commentators had about the proceedings. However, the outcome of the proceedings – which ultimately allowed both the FCC and the ECJ to save face42 – should calm the worry that courts are willing to play irresponsible “games of chicken” with each other.43 Accordingly, the proposed takeaway from the extended OMT proceedings is that the 35

Starita (note 11), 402.

36

Ibid., 403.

37

Ibid.

Dietrich Murswiek, ECB, ECJ, Democracy, and the Federal Constitutional Court: Notes on the Federal Constitutional Court’s Referral Order from 14 January 2014, GLJ 15 (2) (2014), 147, 161. 38

39

Ibid.

Mayer (note 32), 111 et seq.; Matthias Kumm, Rebel 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. 40

41

Ibid.

Lorenzo F. Pace, The OMT Case, the ‘Intergovernmental Drift’ of the Eurozone Crisis and the (Inevitable) Rectification of the BVerfG Jurisprudence in Light of the ECJ’s Gauweiler Judgment, Diritto dell’Unione Europea, forthcoming, para. 10, available at: https://ssrn.com/abstract=2862533 (accessed on 17 January 2017), instead sees what he calls a “showdown” with “winners” (ECB, ECJ, European legal scholarship) and “losers” (Bundesbank, FCC). 42

43 See also Niels Petersen, Karlsruhe Not Only Barks, But Finally Bites: Some Remarks on the OMT Decision of the German Constitutional Court, GLJ 15 (2) (2014), 321, 326 et seq.

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judicial institutions can be counted on to fulfil their respective mandates in a responsible and level-headed fashion, even in instances of partial and sometimes intense disagreement. It is also noteworthy to remember that when the FCC published its reference to the ECJ in 2014, it legitimately was a big deal: German media stated that the underlying case “had created legal history”44 and the academic world did not disagree. The German Law Journal dedicated a special issue to the decision and it was remarked that the FCC “seems to have the power to unsettle the world economy.”45 Looking back at this just two years later, the most striking observations are of a more general nature: 2016 brought a series of unexpected events of a political nature which arguably made these legal proceedings pale in comparison. It is thus fitting that press coverage about the FCC’s 2016 judgment – which was published just two days before the United Kingdom European Union membership referendum – had a more prosaic tone than in 2014 and often referred to an absence of a scandal.46 The OMT proceedings may thus serve as a welcome reminder that unlike the political sphere, the judicial system within the EU has a certain inherent stability – even in cases where commentators fear a continued confrontation.47

44 Anon., Europe or Democracy? What German Court Ruling Means for the Euro, Der Spiegel, 10 February 2014, available at: http://www.spiegel.de/international/europe/german-court-calls-ecb-bondbuying-into-question-a-952556.html (accessed on 17 January 2017). 45

Mayer (note 32), 134.

See, e.g., Michael Reissenberger, Kein Eklat: BVerfG folgt dem EuGH, Legal Tribune Online, 21 June 2016, available at: http://www.lto.de/recht/hintergruende/h/bverfg-2-bvr-2728-13-ezb-omtbeschluss-rechtmaessig-auflagen-eugh/ (accessed on 17 January 2017). 46

See, e.g., Starita (note 11), 396, who calls the FCC’s judgment a “reaffirmation of the latest, less cooperative, approach” in its relation with the ECJ. 47

Genocide in Rwanda: The Judgment of Frankfurt’s Higher Regional Court Against a Former Rwandan Mayor of 29 December 2015 ISABELL BÖHM

I. Introduction More than twenty years after the beginning of the Rwandan genocide, a court in Frankfurt has sent a former Rwandan mayor to prison for life.1 He had been accused of organising one of the massacres in the 1994 genocide. It was a historic trial that came to an end with this judgment of late December 2015, almost five years after it started off in January 2011.2 Onesphore Rwabukombe (R.) was found guilty of actively participating in the Kiziguro churchyard massacre. It was the first time that a German court has handed down a judgment in a case involving the Rwandan genocide of the Tutsi minority.3 Student Research Assistant at the chair of Prof. Dr. iur. Andreas Zimmermann, LL.M. (Harvard), University of Potsdam. The author would like to thank PD Dr. Marcus Schladebach, LL.M., for his support and review of drafts of this article. Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt/Main), 4-3 StE 4/10 - 4 - 1/15, Judgment of 29 December 2015, available in German at: https://beck-online.beck.de/Dokument? vpath=bibdata/ents/beckrs/2016/cont/beckrs.2016.00515.htm&pos=0&hlwords=on&lasthit=True (accessed on 6 November 2016). 1

The main hearing began on 18 January 2011. The reasons for this long duration were not only caused by the Court itself but also by the special circumstances of the case, cf. Natalie von Wistinghausen, VStGB und Strafverfahren: Beweisaufnahme und Angeklagtenrechte, in: Christoph Safferling/ Stefan Kirsch (eds.), Völkerstrafrechtspolitik: Praxis des Völkerstrafrechts (2014), 199. 2

Hilke Fischer, 14 year jail term in Germany’s first Rwandan genocide trial, DW, 17 February 2014, available at: http://www.dw.com/en/14-year-jail-term-in-germanys-first-rwandan-genocide-trial/a-174 38793 (accessed on 6 November 2016); Patrick Kroker, Universal Jurisdiction in Germany: The Trial of Onesphore R. Before the Higher Regional Court of Frankfurt, German Yearbook of International Law (GYIL) 54 (2011), 671; Christoph Safferling/Johanna Grzywotz, Die Völkermordabsicht nach 3

542 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

Only weeks after the beginning of the trial against R. in Frankfurt, another trial was opened before the Higher Regional Court of Stuttgart against two alleged leaders of the Forces Démocratique de Libération du Rwanda (FDLR) for war crimes and crimes against humanity in the Democratic Republic of the Congo; the judgment was handed down on 28 September 2015.4 The convicts are said to have, besides others, ordered killings in the Democratic Republic of the Congo through modern means of communication from German territory. The legal basis for this trial is different to the one in Frankfurt5 as the crimes happened only in 2009; it was the first trial after the coming into force of the German Code of Crimes against International Law (CCIL) (Völkerstrafgesetzbuch)6.7 As the offence in this case took place on German territory, not abroad, the trial is not based on the principle of universal jurisdiction but on the territorial principle.8

Karlsruher Meinung, Juristische Rundschau 4 (2016), 186; Gerhard Werle/Boris Burghardt, Der Völkermord in Ruanda und die deutsche Strafjustiz, Zeitschrift für Internationale Strafrechtsdogmatik (ZIS) (2015), 46. 4 Higher Regional Court of Stuttgart (Oberlandesgericht Stuttgart), 5-3 StE 6/10, Judgment of 29 September 2015 (not yet published and not yet final), press release in German available at: http:// www.olg-stuttgart.de/pb/,Lde/Startseite/PRESSE/OLG+Stuttgart+verurteilt+Funktionaere+der+_ FDLR_/?LISTPAGE=1178276 (accessed on 6 November 2016). Suspected Hutu extremists and their supporters were also on trial in another case in Düsseldorf, but the charges only relate to membership in a criminal or terrorist organisation and not to grave international crimes: Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), III – 6a StS 1/13, Judgment of 5 December 2014, press release in German available at: http://www.olg-duesseldorf.nrw.de/behoerde/presse/archiv/Pressemitteilungen_ aus_2014/20141206_PM_FDLR_Urteil/index.php (accessed on 6 November 2016); Dominic Johnson, Schuldig und auf freiem Fuß, TAZ, 5 December 2014, available at: http://www.taz.de/!5026854/ (accessed on 6 November 2016).

In contrast to the trial in Frankfurt, the trial in Stuttgart is directly based on the charge of crimes in accordance with Secs. 7, 8, and 9 German Code of Crimes against International Law and in accordance with Secs. 129a, 129b German Criminal Code for being a member of a criminal and terrorist organisation abroad. 5

6 Code of Crimes against International Law (Völkerstrafgesetzbuch, CCIL), 26 June 2002, Bundesgesetzblatt (BGBl.) I, 2254, as amended on 22 December 2016, BGBl. I, 3150.

Jürgen Schäfer, Die Rechtsprechung des Bundesgerichtshofs zum Völkerstrafrecht, in: Safferling/ Kirsch (eds.) (note 2), 237, 246; Julia Geneuss, Völkerrechtsverbrechen und Verfolgungsermessen (2013), 241; Gerhard Werle/Florian Jeßberger, Völkerstrafrecht (4th ed. 2016), MN 449; Andreas Schüller, Lange Haftstrafen für FDLR-Milizenführer, LTO, 28 September 2015, available at: http:// www.lto.de/recht/hintergruende/h/olg-stuttgart-urteil-3-ste-6-10-ruanda-voelkerkriegsrecht-buerger krieg/ (accessed on 6 November 2016); cf. infra, II. B. 7

8

Cf. Sec. 3 German Criminal Code.

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This article aims to provide an overview of the facts of the case of R., the legal framework, and the history of the proceedings. Finally, an evaluation of the trial and especially of the principle of universal jurisdiction and future prospects of possible similar trials in Germany will be made.

II. The Case of R. Before the German Courts A. Facts of the Case

Since 2011 R. had been standing trial before the Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt/Main). He was accused of participating in several killings during the genocide in Rwanda in 1994. Non-governmental organisations reported human rights abuses being perpetrated against the tribe of the Tutsi for the first time as early as March 1993.9 On 6 April 1994, a plane carrying then President of Rwanda, Juvenal Habyarimana, and his counterpart of Burundi, Cyprien Ntaryamira, – both Hutus – was shot down, killing everyone on board. Hutus, the largest ethnic group in Rwanda, blamed Tutsis, the next largest ethnic group, for shooting down the plane and vice versa. Eventually, this incident marked the beginning of the genocide.10 From 6 April to 18 July 1994 members of the Hutu majority killed between 500,000 and 1,000,000 people, mostly members of the Tutsi minority and political opponents but also moderate Hutus. The killings began in Kigali, the capital of Rwanda, and quickly spread throughout the country. In July 1994, the Tutsi minority gained control of the country through a military offensive and brought the genocide to an end.11

Fausto Pocar, International Criminal Tribunal for Rwanda, Max Planck Encyclopedia of Public International Law (MPEPIL), November 2007, para. 1, available via: http://www.mpepil.com (accessed on 16 January 2017); Alison Des Forges, Kein Zeuge darf überleben: Der Genozid in Ruanda (3rd ed. 2008), 126 et seq. 9

Cf. Pocar (note 9), para. 1; anon., Rwanda genocide: 100 days of slaughter, BBC, 7 April 2014, available at: http://www.bbc.com/news/world-africa-26875506 (accessed on 6 November 2016). 10

11

Cf. Des Forges (note 9), passim.

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In the commune of Murambi in the northeast of Rwanda the killings began on 7 April 1994. Many Tutsi had fled to the Kiziguro churchyard believing they would be safe there. On 11 April 1994, however, at least 450 people12 were killed in and around the church by soldiers, gendarmes, community police, militia, and civilians.13 R., a member of the Hutu majority and mayor of a commune about 80 kilometres away from Murambi, was accused of ordering the attack on this churchyard in Kiziguro along with other local authorities.14 R. denies having been at the site of the killings. R., who sought political asylum in Germany in 2002, was arrested in 2008 on an international warrant and has been in custody since then (with interruptions in late 2008 and in 2009).15 He was not extradited to Rwanda after the German authorities concluded that he could not receive a fair trial there.16

The actual number of victims is highly disputed and vague, cf. Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt/Main), 5-3 StE 4/10 - 4 - 3/10, Judgment of 18 February 2014, paras. 235, 259, available in German at: http://www.lareda.hessenrecht.hessen.de/lexsoft/default/hessenrecht_ lareda.html#docid:7413865 (accessed on 17 March 2017); Florian Hansen, Zwischenbericht zur Verfahrensbeobachtung im Strafverfahren gegen Onesphore R. vor dem Oberlandesgericht Frankfurt, in: Safferling/Kirsch (eds.) (note 2), 433, 437 (“at least 1200 victims”). As to the problem of the number of victims of the genocide in general, see Des Forges (note 9), 33 et seq. 12

13

et seq.

Cf. Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 236

14 Cf. ibid., paras. 231, 254 et seq.; Kroker (note 3), 671; Nicolai Bülte et al., Monitoring the Trial of Onesphore R. Before the Oberlandesgericht Frankfurt, German Law Journal 16 (2015), 285, 289; cf. as to the role of mayors during the genocide in general Des Forges (note 9), 285 et seq.

Cf. Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), para. 132; Kroker (note 3), 674, 679 et seq.; Geneuss (note 7), 208; Bülte et al. (note 14), 289 et seq. 15

16 Cf. Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt/Main), 2 Ausl. A 175/07, Decision of 6 November 2008, reprinted in: Neue Zeitschrift für Strafrecht Rechtsprechungsreport (NStZ-RR) 14 (2009), 82 with reference to the then consistent legal authority of the International Criminal Tribunal for Rwanda (ICTR): ICTR, Trial Chamber III, The Prosecutor v. Munyakazi, ICTR-97-36- R11bis, Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda of 28 May 2008, and id., Appeals Chamber, The Prosecutor v. Munyakazi, ICTR-97-36R11bis, Decision on the Prosecutor’s Appeal against Decision on Referral under Rule 11bis of 8 October 2008, both available via: http://jrad.unmict.org/webdrawer/webdrawer.dll/webdrawer/search/rec& sm_ncontents=ictr-97-36a&sort1=rs_datecreated&count&template=reclist&from=225669&page=4 (accessed on 17 March 2017); Bülte et al. (note 14), 289 et seq.; Dieter Magsam, Die Opfer in völkerstrafrechtlichen Prozessen in Deutschland, in: Safferling/Kirsch (eds.) (note 2), 181, 184 et seq.

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B. Legal Framework

Under the legal principle of universal jurisdiction,17 genocide, alongside other major crimes (‘core crimes’), can be punished anywhere in the world, not only in the country in which the crime has taken place.18 In Germany, the principle of universal jurisdiction is primarily concretised in Section 6 German Criminal Code (CC) (Strafgesetzbuch).19 German criminal jurisdiction is extended to a catalogue of crimes which deal with legal rights that are to be protected internationally.20 For the case at hand, the applicability of German criminal law is given through Section 6 No. 1 CC old version, which was in force at the time of the criminal offence in Rwanda. This provision constituted the application of the principle of liability for the crime of genocide committed abroad regardless of the nationality of the perpetrator and the victim, Section 220a CC old version.21 Since 2002, the CCIL is in force.22 Section 6 CC is amended by Section 1 CCIL which states that the principle of universal jurisCf. Andreas von Arnauld, Völkerrecht (2nd ed. 2014), MN 345, 1148, 1277; Werle/Jeßberger (note 7), MN 236 et seq. with further references; Christoph Safferling, Internationales Strafrecht (2011), 28 et seq.; Geneuss (note 7), 121 with further references; Ilias Bantekas, Criminal Jurisdiction of States under International Law, MPEPIL, March 2011, paras. 22 et seq., available via: http://www.mpepil.com (accessed on 9 March 2017); Caroline Volkmann, Die Strafverfolgung des Völkermordes nach dem Weltrechtsprinzip im internationalen Strafrecht und im Völkerstrafrecht (2009), passim; Johannes Wessels/Werner Beulke/Helmut Satzger, Strafrecht Allgemeiner Teil (45th ed. 2015), MN 92. 17

Besides the territorial principle, there are the principles of active and passive personality, cf. Safferling (note 17), 21 et seq. 18

19 German Criminal Code (Strafgesetzbuch), 15 May 1871, consolidated version of 13 November 1998, BGBl. I, 3322, as amended on 22 December 2016, BGBl. I, 3150.

Cf. Albin Eser, Geltungsbereich, in: Adolf Schönke/Horst Schröder (eds.), Strafgesetzbuch Kommentar (29th ed. 2014), Vorbemerkung §§ 3–9, MN 19, § 6, MN 1; Helmut Satzger, § 6, in: Helmut Satzger/Wilhelm Schluckebier/Gunter Widmaier (eds.), Strafgesetzbuch Kommentar (3rd ed. 2016), MN 1; Klaus Ferdinand Gärditz, Weltrechtspflege (2006), 169 et seq.; Kai Ambos, Internationales Strafrecht (4th ed. 2014), 69; Volkmann (note 17), 37 et seq. 20

21 Inserted in consequence of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS 78, 277, Criminal Code as amended on 9 August 1954, BGBl. II, 729; cf. Federal Court of Justice (Bundesgerichtshof), BGHSt 45, 64; Federal Constitutional Court (Bundesverfassungsgericht), 2 BvR 1290/99 of 12 December 2000, available at: http://www.bundes verfassungsgericht.de/SharedDocs/Entscheidungen/DE/2000/12/rk20001212_2bvr129099.html (accessed on 9 March 2017). The German Federal Court of Justice then demanded a link between the defendant and the Federal Republic of Germany, which was no problem in the case at hand because R. had resided in Germany since 2002. 22 Cf. Hansen (note 12), 434; Geneuss (note 7), 218, 220 with further references; Werle/Jeßberger (note 7), MN 433 et seq. with further references; Wessels/Beulke/Satzger (note 17), MN 103 et seq.

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diction applies to the crime of genocide, crimes against humanity, and war crimes as well.23 R. was tried under the old law due to the principle of nulla poena sine lege and the principle of non-retroactivity as the CCIL had not been in force in the early 1990s and thus could not be applied to the case.24 C. Proceedings of the Case

The trial against R. before the Higher Regional Court in Frankfurt began on 18 January 2011.25 R. was accused of genocide on three counts in concurrence with offences of murder according to Sections 220a old version, 211, and 52 CC. He was accused of being involved in the killings of 3,732 people in total. The indictment was focused on three massacres although during the proceedings the Court modified and limited the charges to only one massacre, the one at the churchyard in Kiziguro.26 The Court did so in correspondence with Section 154a German Code of Criminal Procedure27 upon application of the federal attorney-general.28 1. Judgment of the Higher Regional Court of Frankfurt of 2014 In 2014, Frankfurt’s Higher Regional Court ruled that R. had overseen and assisted in the murder at the Kiziguro church compound and sentenced him to fourteen years Cf. Satzger (note 20), MN 2; Amnesty International, Germany: End Impunity Through Universal Jurisdiction (2008), 22 et seq., available at: https://www.amnesty.de/downloads/germany-end-impunitythrough-universal-jurisdiction (accessed on 16 December 2016). 23

24

Cf. von Wistinghausen (note 2), 200.

Cf. the Trial-Monitoring Programme of the International Research and Documentation Centre for War Crimes Trials (ICWC), Philipps-University Marburg, available at: https://www.uni-marburg. de/icwc/monitoring/monitoring-prozessbeobachtung-marburg-frankfurt-olg-onesphore-r (accessed on 6 November 2016). 25

Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 267 et seq.; cf. id., Judgment of 29 December 2015 (note 1), paras. 167, 172. 26

27 Code of Criminal Procedure (Strafprozessordnung), 7 April 1987, BGBl. I, 1074, 1319, as amended on 11 October 2016, BGBl. I, 2226, english version available at: https://www.gesetze-im-internet.de/ englisch_stpo/ (accessed on 6 November 2016). 28

Bülte et al. (note 14), 290.

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in jail for aiding and abetting the crime, Sections 220a (1) No. 1 old version, 27 (1) CC.29 For the Court, the principal offences were the actual killings and the demands of G., another Hutu local authority who is supposed to have had a very dominant influence on the others. G. was the principal perpetrator who had control over both the situation and the attackers.30 R. only aided his crime in asking the attackers to “help” and in bringing people to the churchyard with his car in order to have more people around for the killings. The Court was convinced that R. knew about the significance of G.’s demands for the attackers and that they all, G. as well as the attackers, had the aim to kill the people who had been on the churchyard because they were mostly Tutsi.31 The Court could not prove R.’s control of the act and his own intent to destroy the minority of the Tutsi.32 It had not made any findings as to whether R. himself had the intention to commit genocide;33 a conviction for perpetration was thus not possible. R. was furthermore not found guilty of killing anyone himself.34 This judgment could be seen as the plausible attempt of the Court to avoid the legal consequence of life-long imprisonment, which is compulsory when convicting as offender of genocide.35 Both sides appealed this ruling. 29 Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 700 et seq., 749 et seq.

Cf. ICTR, Trial Chamber III, The Prosecutor v. Jean-Baptiste Gatete, ICTR-2000-61-T, Judgment of 31 March 2011, available at: http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-0061/trial-judgements/en/110331.pdf (accessed on 17 March 2017). The Appeals Chamber has explicitly confirmed the proportionality of the sentence of imprisonment for life, but limited it to 40 years in compensation to the overlong duration of the proceedings, cf. id., Appeals Chamber, Jean-Baptiste Gatete v. The Prosecutor, ICTR-00-61-A, Judgment of 9 October 2012, paras. 286 et seq., available at: http:// unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-00-61/appeals-chamber-judgements/ en/121009.pdf (accessed on 17 March 2017). 30

31

et seq. 32

Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 612, 623 Ibid., paras. 617, 728, 745.

Ibid., para. 745; R. showed a very ambivalent behaviour towards the members of the Tutsi minority in his commune: ibid., paras. 208–214, 306–311; cf. Bülte et al. (note 14), 285. 33

34 Cf. Madeline Chambers, German court sentences man to life in Rwanda genocide case, Reuters, 29 December 2015, available at: http://www.reuters.com/article/us-germany-rwanda-court-idUSKB N0UC11R20151229 (accessed on 6 November 2016). 35

Cf. Sec. 220a (1) old version CC.

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2. Judgment of the German Federal Court of Justice of May 2015 On 21 May 2015 the German Federal Court of Justice in Karlsruhe found that the defendant’s previous sentence was too lenient. It said R. had also been actively involved in the killings and, citing evidence from the original trial, referred the case back to another senate in Frankfurt while maintaining the findings of the physical elements of the crime.36 The Court found that it suffices for genocidal intent if the destruction of the group marks an intermediate objective of the offender.37 It does not necessarily have to be their driving force or final aim. The Court was convinced that for R. the destruction of at least parts of the Tutsi minority was a necessary way for maintaining his position as a local authority in the public system of Rwanda, and thus their destruction an intermediate objective.38 One commentator of this judgment said that the German Federal Court of Justice obviously does not construe the requirements for the ‘intent to destroy’ as narrowly as the UN Tribunals for Rwanda and Yugoslavia did. The International Tribunals would have, in his opinion, rather convicted R. of acting as an accomplice in genocide and by the same act of murder as offender.39

3. Judgment of the Higher Regional Court of Frankfurt of December 2015 Another senate than the one which handed down the judgment in 2014 of the Higher Regional Court in Frankfurt stated in its judgment of 29 December 2015 that 36 Federal Court of Justice (Bundesgerichtshof), 3 StR 575/14 of 21 May 2015, available at: https:// beck-online.beck.de/Dokument/?vpath=bibdata/ents/beckrs/2015/cont/beckrs.2015.15116.htm (accessed on 2 April 2017). 37 Safferling/Grzywotz (note 3), 187 et seq.; Werle/Jeßberger (note 7), MN 875 with further references; Safferling (note 17), 174 et seq. 38

Federal Court of Justice (note 36), paras. 13 et seq.

Friedrich-Alexander-Universität Erlangen-Nürnberg, Urteil im Frankfurter Völkermordprozess ist rechtskräftig, 5 August 2016, quoting Christoph Safferling, available at: https://www.vstr.rw.fau. de/2016/08/05/urteil-im-frankfurter-voelkermordprozess-ist-rechtskraeftig/ (accessed on 6 November 2016); cf. Christoph Safferling/Stefan Kirsch, Zehn Jahre Völkerstrafgesetzbuch, Juristische Arbeitsblätter 44 (2012), 481, 482 et seq. 39

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it agreed with the German Federal Court of Justice. R. was sentenced to prison for life for actively participating in the Kiziguro churchyard massacre in accordance with Sections 220a (1) No. 1 old version, 25 (2) CC. The particular seriousness of his guilt (Section 57a (1) No. 2 CC) was also declared by the Court. The Court found that it was not R.’s own particular desire to destroy the Tutsi minority. But he wanted to keep his position as mayor and thus had to represent public doctrine. R. was involved in the preparations for the massacre on the days before it actually happened and he was eventually present as the killings began and prompted the attackers to “help”. He even brought more attackers to the churchyard with his own car.40 Those who appreciate the judgment say that at this point it contains convincing clarifications on questions regarding the commission of an offence and complicity as well as clarifications about the necessary ‘genocidal intent’ as part of the crime of genocide.41 Those who criticise the judgment say that the Court would have had to prove that it was R.’s very aim to destroy the whole Tutsi minority in Rwanda during the massacre at the churchyard.42 Only this reprehensible aim could justify the life-long imprisonment. Otherwise he would have acted as an accomplice of the genocide with the knowledge of the elimination policy, as the Court in Frankfurt ruled in 2014.43 These critics regard R.’s aim to destroy especially the Tutsi minority as not proven. He only wanted to keep his position as mayor and thus had to represent public doctrine. If this doctrine had been to kill the Twa, disliked members of the Hutus, or any other group, he might have acted similarly.44 They argue that the ‘intent to destroy’ as part of the crime of genocide is not equal to the intention to kill. In the present case, this Higher Regional Court of Frankfurt, Judgment of 29 December 2015 (note 1), paras. 125 et seq., 141, 151. 40

41

Boris Burghardt, Anmerkung zum Urteil, JuristenZeitung (JZ) 71 (2016), 106.

Cf. Lars Berster, Entscheidungsanmerkung BGH Urt. v. 21.5.2015 – 3 StR 575/14, ZIS 1 (2016), 72, 74: The intent to destroy can only be affirmed if the part of the group the offender wants to destroy represents a “substantial” part of this group. R.’s intent was limited to those members of the Tutsi who took shelter at the churchyard in Kiziguro, i.e. 450 people according to the Court’s findings. Supposed the total number of living Tutsi was at least 500,000 on the day of the massacre, 450 people only make 0.09% of the whole group. 42

Safferling/Grzywotz (note 3), 190; cf. Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 744 et seq.; cf. id., Judgment of 29 December 2015 (note 1), paras. 103 et seq., 164. 43

44

Berster (note 42), 74.

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specific intention is doubtful not least due to his ambivalent behaviour towards the Tutsi in his community and due to contradictory witness statements on the question whether R. had been at the churchyard and what exactly he did there.45 As to the conviction of the Court, R. put himself deliberately into service of the publicly formulated aim of the destruction of the Tutsi minority with his contributions.46 This justifies the classification of his offences as complicity in genocide and not only abetment. For the supporters of the judgment it is only consistent that an official who incited people to kill other people in an apparatus of State which committed genocide is sentenced as an offender and not as an accomplice. The sentence of imprisonment for life for them seems to be related to the seriousness of the crime which led to the cruellest death of at least 450 human beings.47 The appeal of the defence has been rejected without merit by the German Federal Court of Justice on 26 July 2016.48 Thus the judgment is now final.

III. Concluding Remarks and Future Prospects The trial against R. was Germany’s first trial related to the mass killings during the genocide in Rwanda and it obviously posed some noteworthy legal problems. The defence thought Germany was not the right place to pass judgment on crimes that were committed in Rwanda. “Our system is simply not suited to clearing up what really happened, even though everybody put in a lot of effort”, said von Wistinghausen, one of R.’s lawyers.49 The conduct of such proceedings against genocide and other serious crimes obviously reveals, inter alia, the limits of the principle of universal jurisdiction and of universal criminal justice. German courts do face considerable difficulties when Cf. Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 208– 214, 306–311; id., Judgment of 29 December 2015 (note 1), paras. 102–108. 45

46

Cf. id., Judgment of 29 December 2015 (note 1), paras. 186 et seq.

47

Friedrich-Alexander-Universität Erlangen-Nürnberg (note 39).

Federal Court of Justice (Bundesgerichtshof), 3 StR 160/16 of 26 July 2016, cf. Higher Regional Court of Frankfurt, Judgment of 29 December 2015 (note 1). 48

49

Cf. Fischer (note 3).

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dealing with cases like the present one. Cases which are based on universal jurisdiction are highly political and often lead to diplomatic tensions.50 Critics see a potential for misuse as the proceedings conducted until today were almost exclusively addressed against politically and economically weak States and their citizens, and they see the principle of ne bis in idem at risk.51 They argue universal jurisdiction favours the rights of the victim over the rights of the accused, which should not be the case.52 The proceedings are expensive, costly in terms of time, and not procedurally economical.53 There often is, not only in the case at hand,54 essentially no relevant written proof, no DNA tests, no original pictures, no film or tape recordings, no autopsies for the case, and this list can be continued. The courts are dependent on the cooperation of other States or courts55 and the judicial culture and language of the accused and witnesses are different. Cf. Maximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, American Journal of International Law 105 (2011), 1, 2. 50

Werle/Jeßberger (note 7), MN 248; George P. Fletcher, Against Universal Jurisdiction, Journal of International Criminal Justice (JICJ) 1 (2003), 580 et seq.; Bettina Weißer, Das Prinzip der Weltrechtspflege in Theorie und Praxis, Goltdammer’s Archiv für Strafrecht 159 (2012), 416, 424 et seq.; diff. op.: Georges Abi-Saab, The Proper Role of Universal Jurisdiction, JICJ 1 (2003), 596, 597 et seq. 51

52

Fletcher (note 51), 583; diff. op.: Abi-Saab (note 51), 596.

53

Werle/Jeßberger (note 7), MN 246; Gärditz (note 20), 430; Abi-Saab (note 51), 600.

The Court had to base its findings basically only on the statements of witnesses. But the case dates back to the early 1990s which is over 20 years ago. It is only human to forget details over the years; additionally the situation was very traumatic for most of the witnesses. Thus, it was only partly possible to reconstruct what exactly had happened; cf. Hansen (note 12), 434. As for the difficulties related to the witnesses, see Higher Regional Court of Frankfurt, Judgment of 18 February 2014 (note 12), paras. 331 et seq.; Gärditz (note 20), 429 et seq.; a witness is considered the most unreliable kind of evidence, cf. Rolf Bender/Armin Nack/Wolf-Dieter Treuer, Tatsachenfeststellung vor Gericht: Glaubwürdigkeits- und Beweislehre, Vernehmungslehre (3rd ed. 2007), MN 17: “Als Zeuge ist der Mensch eine Fehlkonstruktion”; Klaus Schroth/Marvin Schroth, Die Rechte des Opfers im Strafprozess (2nd ed. 2011), 33; Kroker (note 3), 683 et seq. with further references. 54

55 Cf. the discontented reactions of the presiding judges of the trials in Frankfurt and Stuttgart: Dominic Johnson, Haft für den Präsidenten, TAZ, 28 September 2015, available at: http://www.taz. de/!5236145/ (accessed on 6 November 2016); Dagmar Dehmer, 14 Jahre Haft wegen Beihilfe zum Völkermord in Ruanda, Tagesspiegel, 18 February 2014, available at: http://www.tagesspiegel.de/ politik/urteil-im-frankfurter-voelkermordprozess-14-jahre-haft-wegen-beihilfe-zum-voelkermord-inruanda/9498872.html (accessed on 6 November 2016); Josef Kelnberger, Wo die deutsche Justiz an ihre Grenzen stößt, Süddeutsche Zeitung, 28 September 2015, available at: http://www.sueddeutsche. de/politik/strafrecht-wo-die-deutsche-justiz-an-ihre-grenzen-stoesst-1.2668853 (accessed on 6 November 2016).

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On the other hand, such cases are desirable under aspects of criminal policy as they allow for decentralised prosecution and combat impunity and ‘safe havens’.56 Those cases pave the way for the criminal defence of universally recognised values which are in the interest of society at large.57 As a result of this brief consideration about the limits of universal jurisdiction, I think the principle is nevertheless a useful complementary tool to combat impunity with trials before national courts, but only if a fair and impartial trial in the country where the crime has been committed or before an international court is not possible.58 This, on the one hand, ensures effective prosecution and counteracts impunity. On the other hand, it respects the sovereignty of States and international courts or tribunals that are closer to the crime.59 In the case at hand it was up to the German courts to conduct this case against R. It cannot be an argument against the trial in Germany that it was the first one and thus new ground.60 To scale down the debate about the principle of universal jurisdiction it should be mentioned that in the last 30 years, only about 30 people around the world have been criminally convicted on the basis of this principle.61 Besides, as the case before the Higher Regional Court in Stuttgart62 shows, the practical problems of a case can be 56 Cf. Gerhard Werle, Völkerstrafrecht und deutsches Völkerstrafgesetzbuch, JZ 8 (2012), 373, 377; Kai Ambos, Vorbemerkung zu § 3, in: Wolfgang Joecks/Klaus Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch, Vol. 1 (3rd ed. 2017), MN 48. 57 Kai Ambos, § 1 Völkerstrafgesetzbuch (Anwendungsbereich), in: Wolfgang Joecks/Klaus Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch, Vol. 8 (Nebenstrafrecht III) (2nd ed. 2013), MN 4 with further references; Abi-Saab (note 51), 597. 58 Werle/Jeßberger (note 7), MN 246 with further references to “subsidiary jurisdiction”; Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction, JICJ 1 (2003), 589, 593; Fannie Lafontaine, Universal Jurisdiction: the Realistic Utopia, JICJ 10 (2012), 1277, 1286; cf. Federal Constitutional Court (Bundesverfassungsgericht), 2 BvR 1/11 of 1 March 2011, reprinted in: Europäische Grundrechte-Zeitschrift 38 (2011), 186.

Werle/Jeßberger (note 7), MN 246. Rwanda generally prefers suspects to be extradited to face justice at home. The ICTR was specialised in the prosecution of those persons presumed most responsible for the genocide due to its limited capacity. R. is clearly not one of them and thus it has never been an issue that he might be convicted there. The ICTR is closed since 31 December 2015 anyway. The fugitives of the genocide can thus only be charged before national courts or before the follow-up body, the Mechanism for International Criminal Tribunals. 59

60

Cf. Ambos (note 20), 73.

61

Cf. Langer (note 50), 45: “in the last twenty-five years […] only twenty-six people”.

62

See supra, I.

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quite similar even if the legal basis is the principle of territory and not the one of universal jurisdiction.63 In contrast, another recent case before the Higher Regional Court of Frankfurt64 demonstrates that universal jurisdiction can work perfectly if the body of evidence is sufficient.65 So if the appropriate combination of suitable law, adequate resources, institutional commitment, and political willingness is given, universal jurisdiction can be very advantageous and courts should make use of it. R. could, however, have been one of the last genocide suspects from Rwanda to be tried in Europe under the principle of universal jurisdiction. Extradition to Rwanda is now possible, which was not yet the case in the trial against R.66 There has been a change in case law due to the improved legal situation in Rwanda.67 But it is very likely that there might follow other charges and proceedings regarding crimes committed in Syria68 or elsewhere. In conclusion, I think that the idea of creating a senate at one Higher Regional Court competent only for international criminal law is very worth thinking about.69 The “War Crimes Unit” of the federal attorney-general is nowadays better equipped with staff than it has been the case some years ago. The German Federal Office of Criminal Investigation keeps an own department for the investigations in proceed63 Difficult criminal investigation, access to evidence, the protection of witnesses, necessary translations, etc. Cf. Johnson (note 55).

Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt/Main), 5-3 StE 2/16 - 4 - 1/16, Judgment of 12 July 2016, available in German at: http://www.lareda.hessenrecht.hessen.de/lexsoft/ default/hessenrecht_lareda.html#docid:7661851 (accessed on 17 March 2017). 64

War crimes, Sec. 8 (1) No. 9 CCIL. The convict has taken pictures with impaled heads of dead soldiers on metal bars in the Syrian civil war and uploaded them on Facebook. The pictures were publicly accessible and the case was not about the solving of the murders as such. 65

66

See supra, II. A.

Cf. European Court of Human Rights, Ahorugeze v. Sweden, Appl. No. 37075/09, Judgment of 27 October 2011, paras. 117 et seq.; Kroker (note 3), 675 et seq. 67

In Syria, proceedings against suspects of crimes are obviously not possible at the moment. Before the International Criminal Court they cannot be charged as Syria has not ratified the Rome Statute yet and the UN Security Council does not refer jurisdiction to the Court as Russia and China block this measure. 68

Hansen (note 12), 443 et seq.; Human Rights Watch, The Long Arm of Justice, 16 September 2014, available at: https://www.hrw.org/report/2014/09/16/long-arm-justice/lessons-specialized-warcrimes-units-france-germany-and (accessed on 6 November 2016); cf. Ambos (note 57), MN 34. 69

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ings in international criminal law.70 Thus it would only be consequent to have such a special department at a court as well. The creation of a special senate at a Higher Regional Court would make it easier to deal with the problems mentioned above regarding cultural differences, cooperation of other States, and the examination of witnesses through translators. The judges would then be used to dealing with such circumstances and could conduct the trial appropriately.

Bundeskriminalamt, Zentralstelle für die Bekämpfung von Kriegsverbrechen und weiteren Straftaten nach dem Völkerstrafgesetzbuch (ZBKV), see: https://www.bka.de/DE/UnsereAufgaben/ Aufgabenbereiche/Zentralstellen/ZBKV/zbkv_node.html (accessed on 6 November 2016); Human Rights Watch (note 69); Amnesty International (note 23), 87 et seq., 108; cf. German Parliament (Deutscher Bundestag), Answer to a Request Concerning 10 Years of Code of Crimes against International Law, 7 November 2012, Bundestagsdrucksachen (BT-Drs.) 17/11339. 70

German Chairmanship of the Organization for Security and Co-operation in Europe in 2016 JENS KAISER

I. Introduction The Conference for Security and Co-operation in Europe (CSCE) was renamed Organization for Security and Co-Operation (OSCE) on 1 January 1995.1 The OSCE works for stability, peace, and democracy through political dialogue about shared values and through practical work. Its security concept covers the politicomilitary, the economic and environmental, and the human dimensions.2 Its 57 participating States include countries from Europe and Central Asia as well as Canada and the United States.3 The OSCE has several decision-making bodies. Summits, i.e. meetings of heads of State or government, are held as needed and give political direction to the OSCE. The Ministerial Council, comprised of the foreign ministers from OSCE States, meets once at the end of every year and is the OSCE’s high-level decision-making body. Finally, the Permanent Council and the Forum for Security Co-Operation, comprised of OSCE State representatives at the ambassadorial level, convene weekly in Vienna. Both institutions are the OSCE’s regular negotiating and decision-making bodies, with the Forum being responsible for issues of security and military stability. Teaching and Research Associate at the Chair of Prof. Dr. Kerstin von der Decken, Walther Schücking Institute for International Law, University of Kiel. Organization for Security and Co-operation in Europe (OSCE), Budapest Summit Declaration, para. 2, in: id., CSCE Budapest Document 1994: Towards a Genuine Partnership in a New Era, 6 December 1994, 1, available at: http://www.osce.org/mc/39554 (accessed on 30 January 2017). 1

2

Id., What we do, available at: http://www.osce.org/what-we-do (accessed on 16 February 2017).

Id., Participating States, available at: http://www.osce.org/participating-states (accessed on 16 February 2017). 3

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Additionally, several institutions support the decision-making process within the OSCE. The Parliamentary Assembly, comprised of over 300 parliamentarians from the participating States, offers input on OSCE-related work and on facilitating cooperation between lawmakers. The Chairmanship, which a different participating State holds each year, coordinates decision-making and sets the OSCE’s priorities. The chairing country’s foreign minister acts as Chairperson-in-Office. On 1 January 2016 Germany assumed Chairmanship of the OSCE, with FrankWalter Steinmeier as Chairperson-in-Office.4 Having previously headed the organisation in 1991, Germany’s chairmanship lasted through 2016, after which Austria took over at the helm of the world’s largest regional security organisation.5 This article will first examine the legal basis, responsibilities, and competences of the OSCE Chairmanship generally. It will then examine OSCE activities in 2016, focusing on the Chairmanship and Germany’s priorities for its tenure.

II. The OSCE Chairmanship A. Determining the Chairing State

OSCE Chairmanship is held for one calendar year by the participating State designated as such by a decision of the Ministerial Council.6 The idea of a rotating Chairmanship has a tradition within the organisation: During the discussions preceding the Helsinki Final Act in 1973–1975, chairmanship of the meetings rotated once or sometimes even twice daily.7 4 Id., Strengthening dialogue, trust and security in the OSCE region at the heart of German Chairmanship in 2016, press release of 1 January 2016, available at: http://www.osce.org/mc/130426 (accessed on 19 September 2016).

Id., Defusing conflicts – re-establishing trust – fighting radicalization and violent extremism: Austria’s priorities for 2017 OSCE Chairmanship, press release of 1 January 2017, available at: http:// www.osce.org/cio/291771 (accessed on 17 January 2017); OSCE Ministerial Council, Decision No. 4/ 14 – OSCE Chairmanship in the Year 2017, OSCE Doc. MC.DEC/4/14 of 5 December 2014. 5

6 OSCE Ministerial Council, Decision No. 8 – Role of the OSCE Chairmanship-in-Office, OSCE Doc. MC(10).DEC/8 of 7 December 2002, para. 1; OSCE Chairmanship, Who we are, available at: http://www.osce.org/cio/108325 (accessed on 9 November 2016).

OSCE, Final Recommendations of the Helsinki Consultations, 3 July 1973, 15, available at: http://www.osce.org/mc/40213 (accessed on 30 January 2016). 7

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The Chairmanship in its current format exists since the Charter of Paris established the Ministerial Council, to meet once a year and to be chaired by the host country,8 with Germany holding the first Chairmanship from June 1991 until June 1992.9 The 1992 Helsinki Document first established responsibilities and competences of the Chairperson-in-Office.10 At the 1994 Budapest Summit, the CSCE decided that overall responsibility for executive action would remain with the Chairperson-in-Office,11 and specified the term of the Chairmanship to one year.12 Finally, in 2002, the Ministerial Council adopted guidelines for the activities of the Chairmanship-in-Office, and designated the Summit or the Ministerial Council as the competent organs to determine future Chairpersons-in-Office, as a rule two years before the Chairmanship’s term of office begins.13 Accordingly, the 2014 Ministerial Council in Basle decided Germany’s 2016 Chairmanship.14 The preceding and the incoming Chair (Serbia15 and Austria,16 respectively) acted in an advisory capacity; together the three States formed the OSCE ‘Troika’.17

B. Responsibilities and Competences of the Chairmanship

While the Chairperson-in-Office’s responsibilities and competences are described to some extent in various OSCE documents, the office largely functions on an Id., Charter of Paris for a New Europe, 21 November 1990, 15, available at: http://www.osce.org/ mc/39516 (accessed on 21 October 2016). 8

9 Id., Final Document of the First Meeting of the CSCE Council of Ministers, OSCE Doc. 1 BERL91.e, 2 of 20 June 1991. 10 Id., CSCE Helsinki Document 1992: The Challenges of Change, 10 July 1992, Chapter I Decisions 12–22, Chapter II Decisions 13, 14, 17–20, Chapter II Decisions 5, 9, 20, 26, 35, 39, 43, 44, 49, available at: http://www.osce.org/mc/39530 (accessed on 21 October 2016). 11

Id. (note 1), Chapter I Decision 19.

12

Ibid.

13

OSCE Ministerial Council (note 6), para. 1.

Id., Decision No. 3/14 – OSCE Chairmanship in the year 2016, OSCE Doc. MC.DEC/3/14 of 5 December 2014. 14

Id., Decision No. 1/12 – OSCE consecutive Chairmanships in 2014 and 2015, OSCE Doc. MC. DEC/1/12 of 10 February 2012. 15

Id., Decision No. 4/14 – OSCE Chairmanship in the year 2017, OSCE Doc. MC.DEC/4/14 of 5 December 2014. 16

17

Cf. OSCE (note 10), Chapter I Decision 15.

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informal basis. This is mostly due to the OSCE’s character as a political institution, but also owing to its lack of a legal framework.18 Neither the Helsinki Final Act nor the Charter of Paris is primarily concerned with the establishment of institutional rules for the OSCE. The organisation itself seems largely unperturbed by this, and attempts19 to strengthen the legal framework of the organisation remain unfinished. Rather, such rules were established in a piece-meal fashion, at various Summits and Ministerial Councils. For example, the manner of determining the Chairmanship by all appearances has remained unchanged since 1991, but was formalised as late as 2002. The various responsibilities and competences of the Chairmanship broadly fall into three categories: policy-making and representation, administration and coordination, and communication and information.

1. Policy-Making and Representation By far the most important task of the Chairmanship is to determine the OSCE’s priorities. The Chairperson-in-Office presides over Summits, the Ministerial Council, and the Permanent Council as well as their respective subsidiary bodies,20 thus holding the reins in almost all of the OSCE’s regularly scheduled decision-making meetings. The Chairperson-in-Office also represents the OSCE externally,21 is responsible for the coordination of current OSCE business, and provides drafts, reports, overviews, and recommendations to the Permanent Council.22

Cf. id., 23rd OSCE Ministerial Council, Speech by the Chairperson-in-Office and Foreign Minister Frank-Walter Steinmeier, Closing Session, 9 December 2016, OSCE Doc. MC.DEL/42/16 of 12 December 2016. 18

See e.g. Draft Convention on the International Legal Personality, Legal Capacity, and Privileges and Immunities of the OSCE, in: id., Final Document of the Fifteenth Meeting of the Ministerial Council, Madrid 2007, 65, available at: http://www.osce.org/node/33180 (accessed on 19 January 2017); OSCE Ministerial Council, Decision No. 4/08 – Strengthening the Legal Framework of the OSCE, OSCE Doc. MC.DEC/4/08 of 5 December 2008. 19

20

OSCE Ministerial Council (note 6), para. 2(a).

21

Ibid., para. 2(g).

22

Ibid., paras. 2(b)–(d); OSCE (note 10), Chapter I Decision 12.

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2. Administration and Coordination To ensure better coordination of efforts in specific areas, the Chairperson-in-Office can appoint personal and special representatives.23 He or she also nominates and monitors the head of OSCE peacekeeping missions,24 assures financial accountability of such missions,25 and provides operational guidance.26 Finally, he or she is involved in OSCE Secretariat staffing decisions27 and recommends a person for the office of OSCE Secretary General, who is under the Chairperson-in-Office’s guidance.28

3. Communication and Information The Chairmanship functions as an information nexus, with several OSCE bodies reporting to the Chairperson-in-Office, who in turn reports to institutions within or outside of the OSCE. The OSCE High Commissioner on National Minorities, who provides “early warning” and “early action” regarding tensions involving national minority issues,29 renders such early warnings to the Chairperson-in-Office, who in turn informs the Permanent Council30 at its next meeting.31 Furthermore, the High Commissioner reports to the Chairperson-in-Office when he or she visits a participating State to address a tension involving national minorities.32 The Chairperson-inOffice also acts as an intermediary between the High Commissioner and the partici23

OSCE Ministerial Council (note 6), para. 2(h).

24

OSCE (note 10), Chapter III Decisions 43, 44.

25

Ibid., Chapter III Decision 49.

26

Ibid., Chapter III Decision 39.

Id., Final Document of the Fourth Meeting of the CSCE Council of Ministers, Rome 1993, Chapter VII Decision 10, available via: http://osce.org/de/mc/40403 (accessed on 12 July 2017). 27

Id., Final Document of the Third Meeting of the CSCE Council of Ministers, Stockholm 1992, 21, available via: http://www.osce.org/node/40342 (accessed on 19 January 2017). 28

29

Id. (note 10), Chapter II Decision 3.

The Helsinki Document refers to the Committee of Senior Officials (CSO). The CSO was later replaced by the Senior Council, see id. (note 1), Chapter 1 Decision 17, which in turn became the Permanent Council in 2006, see OSCE Ministerial Council, Decision No. 4/06 – OSCE Senior Council, OSCE Doc. MC.DEC./4/06 of 26 July 2006. 30

31

OSCE (note 10), Chapter II Decisions 13, 14.

32

Ibid., Chapter II Decisions 17, 18.

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pating State before the High Commissioner transmits its report to the Permanent Council.33 Furthermore, requests for the initiation of peacekeeping operations must be made to the Permanent Council, through the Chairperson-in-Office,34 and he or she will consult with OSCE participating States.35 The Chairperson-in-Office is also responsible for keeping the United Nations Security Council informed of OSCE peacekeeping activities.36 He or she further serves as a first point of contact in situations within the OSCE area that have the potential to develop into crises.37 Finally, he or she communicates decisions of the Ministerial Council and the Permanent Council to OSCE institutions.38

III. The German Chairmanship in 2016 Germany themed its tenure “Renewing dialogue, rebuilding trust, restoring security”.39 Its overarching goals were to foster dialogue and restore trust, thus enhancing long-term security in Europe.40 Germany outlined its prospective policies and measures in six different categories: crisis and conflict management,41 strengthening the OSCE’s capacities over the entire conflict cycle,42 using the OSCE as a platform for dialogue,43 promoting sustainable connectivity and good governance in the OSCE area,44 focusing on the human dimension,45 and strengthening exchange between 33

Ibid., Chapter II Decision 19.

34

Ibid., Chapter III Decision 26.

35

Ibid., Chapter III Decision 35.

36

Ibid., Chapter III Decision 20.

37

Ibid., Chapter III Decisions 3, 5.

38

Ibid., Chapter I Decision 13.

Id., Renewing dialogue, rebuilding trust, restoring security – the priorities of the German OSCE Chairmanship in 2016, available via: http://www.osce.org/cio/215791 (accessed on 20 January 2017). 39

40

Ibid., 2.

41

Ibid., 3–4.

42

Ibid., 5.

43

Ibid., 6–8.

44

Ibid., 9.

45

Ibid., 10–11.

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societies and the public.46 With over 300 events organised by the Chairmanship,47 a detailed review of all OSCE activities under the auspices of Germany is beyond the scope of this article. Referring to the aforementioned categories, this section will take stock of selected OSCE actions in 2016, referring to activities of the Chairmanship and the Chairperson-in-Office where appropriate.

A. Crisis and Conflict Management

Focus during the German Chairmanship lay on four major European conflict areas: Ukraine, Nagorno-Karabakh, Transnistria, and Georgia.

1. Conflict Area Ukraine The OSCE’s key forum regarding Ukraine is the Trilateral Contact Group (TCG). Therein, representatives of Ukraine, Russia, and the OSCE48 consult on and negotiate concrete steps towards implementation of the Minsk agreements. While the TCG did agree on a Framework Decision relating to disengagement of forces and hardware49 on 21 September 2016, implementation of this arrangement has been unsatisfactory.50 In 2014, the OSCE created a Special Monitoring Mission to Ukraine (SMM), tasked with observing and reporting impartially and objectively on the situation in Ukraine and facilitating dialogue among all parties to the crisis.51 SMM’s current man-

46

Ibid., 12.

Id., 2016 in Review: OSCE Chairperson-in-Office Steinmeier, 29 December 2016, available at: http://www.osce.org/cio/291546 (accessed on 25 January 2017). 47

48 Specifically, the Special Representative of the OSCE Chairperson-in-Office in Ukraine and in the Trilateral Contact Group. 49 OSCE, Framework Decision of the Trilateral Contact Group relating to disengagement of forces and hardware, 21 September 2016, available (in Russian only) at: http://www.osce.org/cio/266266 (accessed on 21 January 2017). 50 Permanent Mission of Germany to the OSCE, Address by Martin Sajdik at the side event on Ukraine in the margins of the OSCE Ministerial Council on 8 December 2016 in Hamburg, available at: http://www.wien-osze.diplo.de/Sajdik (accessed on 21 January 2016).

OSCE Permanent Council, Decision No. 1117 – Deployment of and OSCE Special Monitoring Mission to Ukraine, OSCE Doc. PC.DEC/1117 of 21 March 2014. 51

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date lasts until 31 March 2018.52 SMM relies heavily on voluntary contributions; in 2015, 61% of its staff was seconded, 21% of its revenue came from outside the OSCE’s budget, and 16% of all property, plants, and equipment acquired was donated.53 Germany pledged to make voluntary financial and staff contributions and to focus on sending personnel to SMM. By its own statement, Germany funds around 12% of the annual SMM budget.54 In terms of personnel, in 2016 the total number of mission monitors deployed to SMM increased by 5%, while the number of German monitors grew by 10%.55 The Chairperson-in-Office, the Special Representative of Germany for the 2016 Chairmanship Gernot Erler (SR Erler), and the Special Representative of the Chairperson-in-Office in Ukraine and in the Trilateral Contact Group Martin Sajdik (SR Sajdik) visited SMM56 and attempted to de-escalate the conflict.57 Further OSCE efforts in Ukraine include an observer mission at the Russian-Ukrainian border.58

Id., Decision No. 1246 – Extension of the Mandate of the OSCE Special Monitoring Mission to Ukraine, OSCE Doc. PC.DEC/1246 of 16 March 2017. 52

53 OSCE, Financial Report and Financial Statements for the year ended 31 December 2015 and the Opinion of the External Auditor, 30, para. 7, available via: http://www.osce.org/secretariat/253311 (accessed on 20 January 2017).

Federal Foreign Office of Germany, OSCE crisis management in Ukraine, 9 January 2017, available at: http://www.auswaertiges-amt.de/EN/Aussenpolitik/Laender/Aktuelle_Artikel/Ukraine/ OSZE.html (accessed on 20 January 2017). 54

55 January 2016: 27 German monitors, 662 total, see OSCE, SMM Status Report as of 13 January 2016, available at: http://www.osce.org/ukraine-smm/216006 (accessed on 20 January 2017); December 2016: 30 German monitors, 693 total, see id., SMM Status Report as of 21 December 2016, available at: http://www.osce.org/ukraine-smm/290561 (accessed on 20 January 2017).

Visits to Ukraine and SMM by the Chairperson-in-Office, SR Erler and SR Sajdik, see OSCE, Reports on the Activities of the Chairperson-in-Office, OSCE Docs. CIO.GAL/30/16 of 3 March 2016, CIO.GAL/58/16 of 28 April 2016, CIO.GAL/200/16 of 4 November 2016, CIO.GAL/89/16 of 10 June 2016. 56

57 De-escalating remarks regarding ceasefire violations by SR Erler, see id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/52/16 of 15 April 2016; letters sent by the Chairperson-in-Office to Russia and Ukraine regarding ceasefire violations, see id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/58/16 of 28 April 2016.

OSCE Permanent Council, Decision No. 1130 – Deployment of OSCE Observers to Two Russian Checkpoints on the Russian-Ukrainian Border, OSCE Doc. PC.DEC/1130 of 24 July 2014. 58

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2. Conflict Area Nagorno-Karabakh The OSCE’s efforts to find a peaceful solution to the Nagorno-Karabakh conflict are spearheaded by the Minsk Group, which is co-chaired by France, Russia, and the United States.59 April 2016 saw intense fighting between Armenia and Azerbaijan in what has been called the “worst clashes in decades”.60 However, the Chairperson-in-Office met with the conflict sides and other international actors,61 and a ceasefire62 as well as an OSCE-facilitated exchange of bodies63 followed. With further visits by OSCE representatives to the conflict area64 and meetings with the Minsk Group,65 no additional major skirmishes occurred in 2016.

59 OSCE, OSCE Minsk Group, available at: http://www.osce.org/mg (accessed on 21 January 2016). 60 Anon., Nagorno-Karabakh violence: Worst clashes in decades kill dozens, BBC, 3 April 2016, available at: http://www.bbc.com/news/world-europe-35949991 (accessed on 21 January 2017). 61 OSCE, Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/46/16 of 8 April 2016.

Anon., Nagorno-Karabakh: Azeri-Armenian ceasefire agreed, BBC, 5 April 2016, available at: http://www.bbc.com/news/world-europe-35964213 (accessed on 21 January 2017). 62

OSCE, Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/52/16 of 15 April 2016. 63

Visit to Armenia by Special Representative Bächler, id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/57/16 of 21 April 2016; visit to the line of contact by Personal Representative of the Chairperson-in-Office Kasprzyk, id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/70/16 of 12 May 2016; meeting between the Chairperson-in-Office and the Foreign Minister of Azerbaijan, id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/70/16 of 12 May 2016; visit to Armenia and Azerbaijan by the Chairperson-in-Office, id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO. GAL/111/16 of 8 July 2016. 64

65 Meetings of the Chairperson-in-Office with the Minsk Group on 20 April and 23 June 2016, see id., Report on the Activities of the Chairperson-in-Office, OSCE Docs. CIO.GAL/57/16 of 21 April 2016, CIO.GAL/100/16 of 24 June 2016.

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3. Conflict Area Transnistria On 2 June 2016, after several months of preparation, Transnistrian settlement talks in the “5+2 Format”66 resumed in Berlin after a two-year break.67 The talks resulted in the Berlin Protocol, containing a number of commitments by Moldova and Transnistria to proceed with outcome-based negotiations.68 Both the Special Representative of the Chairperson-in-Office for the Transdniestrian Settlement Process Cord Meier-Klodt (SR Meier-Klodt) and the Chairperson-in-Office himself visited Moldova and Transnistria to follow up on the 5+2 talks,69 and on 12–13 July 2016, a conference on confidence-building measures in the Transnistrian conflict was held in Bad Reichenhall, Germany.70 The 2016 Ministerial Council also agreed on a statement reaffirming the goals of the Berlin Protocol.71

4. Conflict Area Georgia To address the consequences of the 2008 Russo-Georgian conflict, the OSCE, together with the European Union and the United Nations, co-chairs the Geneva International Discussions (GID).72 The Chairmanship, specifically the Special Repre66 The 5+2 format includes the conflict parties, Transnistria and Moldova, as well as the OSCE, Russia, Ukraine, the European Union, and the United States as mediators and observers. 67 OSCE, Renewed Transdniestrian settlement talks provide impetus for real progress in the coming weeks, says OSCE Special Representative, 3 June 2016, available at: http://www.osce.org/cio/244651 (accessed on 21 January 2017).

Id., Protocol of the official meeting of the permanent conference for political questions in the framework of the negotiating process on the Transdniestrian settlement, 3 June 2016, available at: http://www.osce.org/moldova/244656 (accessed on 21 January 2017). 68

Visits by the Chairperson-in-Office and SR Meier-Klodt to Moldova and Transnistria, see id., Reports on the Activities of the Chairperson-in-Office, OSCE Docs. CIO.GAL/100/16 of 24 June 2016, CIO.GAL/134/16 of 28 July 2016, CIO.GAL/171/16 of 5 October 2016, CIO.GAL/178/16 of 14 October 2016. 69

Id., Bavaria conference reinforces German OSCE Chairmanship’s emphasis on an outcomes-based Transdniestrian settlement process, 14 July 2016, available at: http://www.osce.org/cio/253901 (accessed on 21 January 2017). 70

OSCE Ministerial Council, Ministerial Statement on the Negotiation on the Transdniestrian Settlement Process in the “5+2” Format, OSCE Doc. MC.DOC/2/16 of 9 December 2016. 71

OSCE, Press releases related to the Geneva International Discussions, available at: http://www. osce.org/home/104211 (accessed on 30 January 2017). 72

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sentative of the Chairperson-in-Office for the South Caucasus Günther Bächler, represented the OSCE at these talks.73 Achievements of the GID in 2016 include a simultaneous release of detainees74 and a resumption of the Incident Prevention and Response Mechanism (IPRM).75 The IPRM consists of meetings to discuss inter alia the identification of potential risks, the follow-up of incidents, and the exchange of information, held in cooperation with the European Union Monitoring Mission in Georgia.76

B. Strengthening the OSCE’s Capacities over the Entire Conflict Cycle

The “conflict cycle” refers to the phases of a conflict: early warning, conflict prevention, crisis management, and post-conflict rehabilitation.77 In this regard, the German Chairmanship organised and participated in a variety of events in 2016. Inter alia, on 17 April, SR Erler participated in a seminar of the Parliamentary Assembly with a particular focus on protracted conflicts.78 On 18 November, German Federal Minister of Family Affairs, Senior Citizens, Women, and Youth Manuela Schwesig participated in a Chairmanship event on the implementation of United Nations Security Council Resolution 1325,79 focusing on the role of women in ensuring international peace and security.80 73 Id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/178/16 of 14 October 2016.

Id., Statement by the Co-Chairs of the Geneva International Discussions on the release of detainees, press release of 11 March 2016, available at: http://www.osce.org/cio/226871 (accessed on 25 January 2017). 74

75 Id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/46/16 of 8 April 2016.

Id., Press releases related to the Incident Prevention and Response Mechanism (IPRM), available at: http://www.osce.org/home/104212 (accessed on 25 January 2017). 76

77

Id. (note 39), 5.

Id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/57/16 of 21 April 2016. 78

Federal Foreign Office of Germany, No peace without women – conference at the Federal Foreign Office on implementing UNSCR 1325, press release of 18 November 2016, available at: http:// www.auswaertiges-amt.de/EN/Infoservice/Presse/Meldungen/2016/161117-Konf_Res-1325.html (accessed on 25 January 2017). 79

80

Ibid.

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The German Chairmanship also endeavoured to make progress on the issue of the OSCE acquiring a legal personality under international law.81 While Germany did enact a new regulation enhancing the OSCE’s legal status within Germany,82 the issue remains unsolved.83 Russian opposition84 also prevented Germany’s goal85 to revise the Vienna Document, which contains various confidence- and security-building measures with regard to military operations of OSCE participating States.86 C. Using the OSCE as a Platform for Dialogue

To renew substantive discussion on fundamental issues of European security and common threats, the German Chairmanship organised and participated in numerous events, inter alia: – A cyber security conference on information and telecommunication technology on 20 January in Berlin, addressing measures to prevent cyber-related tensions.87 – The Chairperson-in-Office participated in the 2016 Munich Security Conference on 12–14 February.88 – A counter-terrorism conference on 31 May in Berlin, focusing on preventing and countering Violent Extremism and Radicalization that Lead to Terrorism (VERLT).89 81

OSCE (note 39), 5.

Regulation on Privileges and Immunities of the OSCE (Verordnung über Vorrechte und Immunitäten der Organisation für Sicherheit und Zusammenarbeit in Europa), 4 February 2016, Bundesgesetzblatt (BGBl.) II, 138. 82

83

See supra, II. B.

OSCE Forum for Security Co-operation, Statement by the Delegation of the Russian Federation, 834th Plenary Meeting, OSCE Doc. FSC.JOUR/840, of 9 November 2016, Annex 3. 84

85

OSCE (note 39), 7.

86

Id., Vienna Document 2011, OSCE Doc. FSC.DOC/1/11 of 30 November 2011.

Id., Berlin OSCE Cyber conference looks to reduce the risk of conflict stemming from Information and Communication Technologies, 20 January 2017, available at: http://www.osce.org/cio/ 217426 (accessed on 26 January 2017). 87

88 Munich Security Conference, Munich Security Conference 2016 – Agenda and Participants, available at: https://www.securityconference.de/en/activities/munich-security-conference/msc-2016/ agenda-and-participants/ (accessed on 25 January 2017).

OSCE, OSCE Counter-Terrorism conference, Berlin 2016, 23 June 2016, available at: http:// www.osce.org/secretariat/248271 (accessed on 25 January 2017). 89

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– A conference on the OSCE Code of Conduct on Politico-Military Aspects of Security on 2–3 June in Berlin, focusing on democratic control of armed forces.90 – The Annual Police Experts Meeting on 9 June in Vienna, focusing on intelligence-led policing.91 – The Annual Security Review Conference on 28–30 June in Vienna, focusing on European security, challenges arising from current migration trends, and countering terrorism in the OSCE area.92 – The 2016 OSCE Mediterranean Conference on 5–6 October in Vienna, focusing on best practices for countering violent extremism and migration management.93 – The Annual Conference on Combating Threat of Illicit Drugs on 13–14 October in Vienna.94 Germany also aimed at progress regarding the Treaty on Conventional Armed Forces in Europe (CFE Treaty),95 an arms control treaty which Russia unilaterally suspended in 200796 and does no longer participate in at all since 2015.97 However, while a CFE Treaty review conference took place, the situation remained unchanged. Germany also aimed to procure a national observation aircraft in the context of the Treaty on Open Skies98 but did not follow up on this plan. 90 Federal Foreign Office of Germany, The OSCE Code of Conduct on politico-military aspects of security, 16 August 2016, available at: http://www.auswaertiges-amt.de/EN/Aussenpolitik/Friedens politik/Abruestung/konventionelleWaffen/OSZE-CoC_node.html (accessed on 26 January 2017).

OSCE, Intelligence-led policing in focus of OSCE Annual Police Experts Meeting in Vienna, 9 June 2016, available at: http://www.osce.org/secretariat/245996 (accessed on 26 January 2017). 91

92 Id., 2016 Annual Security Review Conference, available at: http://www.osce.org/cio/246311 (accessed on 25 January 2017). 93 Id., 2016 OSCE Mediterranean Conference, available at: http://www.osce.org/partners-forcooperation/mediterranean/258506 (accessed on 26 January 2017).

Id., 2016 OSCE-wide Conference on Combating Threat of Illicit Drugs and Diversion of Chemical Precursors, available at: http://www.osce.org/secretariat/267736 (accessed on 26 January 2017). 94

95

Treaty on Conventional Armed Forces in Europe, 19 November 1990, UNTS 2441, 285.

Anon., Russia suspends arms control pact, BBC, 14 July 2007, available at: http://news.bbc.co.uk/ 2/hi/europe/6898690.stm (accessed on 26 January 2017). 96

Arms Control Association, Russia Completes CFE Treaty Suspension, available at: https://www. armscontrol.org/taxonomy/term/29 (accessed on 16 February 2017). 97

Treaty on Open Skies, 24 March 1992, available at: http://www.osce.org/library/14127 (accessed on 26 January 2016). 98

568 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 D. Promoting Sustainable Connectivity and Good Governance in the OSCE Area

“Sustainable connectivity” refers to the OSCE’s economic and environmental dimension.99 The main event in 2016 was the annual OSCE Economic and Environmental Forum on 14–16 September in Prague, focusing on good governance, particularly fighting corruption, money-laundering, and financing of terrorism, as well as environmental and migration governance.100 On 18–19 May, the Chairmanship also held a conference titled “Connectivity for Commerce and Investment”, discussing infrastructure projects, transports corridors, trade, energy safety, and digital connectivity.101

E. Focusing on the Human Dimension

The OSCE’s human dimension is the field of human rights and fundamental freedoms. Germany particularly aimed to combat anti-semitism,102 and the Chairperson-in-Office attended the Interparliamentary Conference on Combating AntiSemitism on 14–15 March in Berlin.103 The Chairmanship also organised a meeting of experts on combating anti-semitism from all OSCE participating States, focusing on the definition of anti-semitism and exchanging best practices.104 Further Chairmanship activities in this area encompassed a wide variety of subject matters, inter alia: – An appearance of the Chairperson-in-Office at World Press Freedom Day on 3 May.105 99

OSCE (note 39), 9.

Id., Concluding Meeting of the 24th OSCE Economic and Environmental Forum, available at: http://www.osce.org/event/24th_eef_2016 (accessed on 26 January 2017). 100

101 Id., Connectivity for Commerce and Investment, available at: http://www.osce.org/cio/240046 (accessed on 26 January 2017). 102

Id. (note 39), 11.

United Nations Educational, Scientific and Cultural Organization, Director-General speaks on combating anti-Semitism at Berlin conference, available at: http://en.unesco.org/news/director-generalspeaks-combating-anti-semitism-berlin-conference (accessed on 27 January 2017). 103

OSCE, Experts from OSCE Participating States stress importance of continuous fight against antiSemitism, 20 June 2016, available at: http://www.osce.org/cio/247681 (accessed on 29 January 2017). 104

105 Id., On World Press Freedom Day OSCE Chairperson Steinmeier and OSCE Representative Mijatović stress importance of free and independent media, 3 May 2016, available at: http://www.osce. org/fom/238026 (accessed on 27 January 2017).

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– An appearance of the Chairperson-in-Office at the Human Dimension Implementation Meeting, organised by the OSCE Office for Democratic Institutions and Human Rights on 19 September in Warsaw.106 – A Chairmanship conference on 20 October in Berlin, exploring the contribution of tolerance and diversity to stable and peaceful societies and discussing policy tools and good practices.107

F. Strengthening Exchange Between Societies and the Public

Germany planned to strengthen transnational exchange between societies and to actively involve civil society.108 To that end, the Chairmanship organised and participated in a number of events. On 24 February, SR Erler met with the OSCE Network of Think Tanks and Academic Institutions,109 a network of research institutions in the OSCE area providing expertise, stimulating discussion, and raising awareness of the OSCE. The 2016 OSCE Security Days on 23–24 June in Berlin took place in cooperation with Germany’s two most important party political foundations and aimed at contributing to creating a dialogue to return to cooperative security in Europe.110 Finally, a conference in cooperation with the Schwarzkopf Foundation Young Europe on 10–11 November in Berlin debated different notions of security in the OSCE region from a youth perspective.111

Id., Human Dimension Implementation Meeting 2016: Consolidated Summary, 5, available via: http://www.osce.org/odihr/274416 (accessed on 29 January 2017). 106

Id., OSCE Chairmanship Conference on Tolerance and Diversity, available at: http://www.osce. org/cio/273976 (accessed on 29 January 2017). 107

108

Id. (note 39), 12.

Id., Report on the Activities of the Chairperson-in-Office, OSCE Doc. CIO.GAL/30/16 of 3 March 2016. 109

110

Id., OSCE Security Days Conference Report, OSCE Doc. SEC.DAYS/17/16 of 27 July 2016, 1.

Id., Concluding youth event of Germany’s OSCE Chairmanship to give stronger voice to young people on current security challenges, 11 November 2016, available at: http://www.osce.org/cio/ 281006 (accessed on 29 January 2016). 111

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IV. Summary Germany’s Chairmanship year culminated in the 23rd OSCE Ministerial Council on 8–9 December in Hamburg,112 resulting in a number of decisions and declarations. Among the many policy suggestions, two results stand out. First, the OSCE participating States committed to establishing national advance passenger information systems to collect passenger and crew data from airlines operating in their territories.113 Second, the Council agreed upon a statement on the Transnistrian settlement process, after intense fighting in April.114 Looking at the state of Europe today, one could argue that Germany’s agenda for 2016 – renewing dialogue, rebuilding trust, restoring security – has, by all appearances, failed. The European Union faces the biggest crisis of its existence in the Brexit, Turkey seems on track to becoming an autocracy, the conflicts in Ukraine, NagornoKarabakh, Transnistria, and Georgia remain at an impasse, and nationalist tendencies are on the rise in many European States. Adding to this, current developments in the United States, an OSCE participating State, do not engender a particularly optimistic prognosis for transatlantic political and trade relations. Notwithstanding, the OSCE may serve as a beacon of hope in dark times. Its activities in 2016 show that the willingness to work together on difficult issues, to overcome differing opinions in the interest of achieving security and stability, and the primacy of cooperation over isolation yet prevail in the OSCE area. Europe should not give up on the vision of common and cooperative security, or, in the words of Chairperson-in-Office FrankWalter Steinmeier (recalling Helmut Schmidt’s quip that visionaries might be best served with a doctor’s visit): “No doctor will be able to help anyone who has neither visions nor a compass for the future at a time of fundamental upheavals and challenges.”115

112 See id., Ministerial Council 2016, available at: http://www.osce.org/oscemc16 (accessed on 30 January 2017). 113 OSCE Ministerial Council, Decision No. 6/16 – Enhancing the Use of Advance Passenger Information, OSCE Doc. MC.DEC/6/16 of 9 December 2016. 114 Id., Ministerial Statement on the Negotiations on the Transdniestrian Settlement Process in the “5+2” Format, OSCE Doc. MC.DOC/2/16 of 9 December 2016.

Id., 23rd OSCE Ministerial Council – Speech by the Chairperson in Office and Foreign Minister Frank-Walter Steinmeier, 9 December 2016, OSCE Doc. MC.DEL/42/16 of 12 December 2016. 115

Are the Maghreb States ‘Safe’? AVRIL RUSHE AND JOSCHKA PETERS-WUNNENBERG

I. Introduction The last two years have tested Europe’s mettle and brought with them the largest mass movement of people since the immediate post-war period. The Federal Republic of Germany (Germany) has been and remains for many the destination of choice within the European Union (EU), having received 745.545 asylum applications in 2016,1 a staggering six times more applications than its EU counterparts on average.2 To this backdrop attempts have been made to expand the German ‘safe country of origin’ list to include the so-called ‘Maghreb States’ – Morocco, Algeria, and Tunisia. Inclusion of countries on this list triggers a rebuttable presumption that persons from this State are not in need of protection and entails a number of procedural consequences, including an accelerated asylum procedure and a shortened period for appealing the first instance decision. This piece will first look at the origin and rationale of the safe country of origin concept, before moving on to the application of the concept in Germany. Finally, an assessment of the legal situation pertaining in Morocco, Algeria, and Tunisia will be conducted to examine whether they fulfil the requirements of Annex I to the Asylum Procedures Research and Teaching Assistant. Student assistant to Prof. Kerstin von der Decken at the Walther Schücking Institute for International Law, University of Kiel. Bundesministerium für Asyl und Migration, Asyl Schlüsselzahlen 2016, available at: http://www. bamf.de/SharedDocs/Anlagen/DE/Publikationen/Flyer/flyer-schluesselzahlen-asyl-2016.pdf?__blob= publicationFile (accessed on 18 April 2017). 1

2 Eurostat, Asylum and first time asylum applicants by citizenship, age and sex, Annual aggregated data, available at: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyappctza&lang=en (accessed on 18 April 2017).

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Directive3 (APD) or are simply being shoehorned into the category of safe country or origin to serve the political goal of reducing the number of asylum applications.

II. Origin and Rationale of the Safe Country of Origin Concept The safe country of origin concept is one of two safe country concepts employed in the assessment of asylum applications – safe country of origin and safe third country. Developed as part of the arsenal to deal with the increased number of asylum applications at the end of the 1980s, the ‘safe country’ concept results in a country being seen as inherently safe and thus a non-refugee-generating State.4 The concept was developed by national legislatures, in an attempt to create unfavourable conditions for seeking international protection5 in the hope of preventing economic migrants seeking to circumvent immigration legislation from lodging unmeritous asylum claims. As such claims are detrimental to those genuinely in need of international protection due to the creation of an unnecessary burden on the State where the claim is lodged; use of the concept would also serve to expedite the asylum procedure in general. Currently, Germany is one of fifteen EU Member States using the safe country of origin concept in their asylum procedures and another seven have made provision for such in their national law following the transposition of the APD.6 The concept may be appealing to States as quite obviously the more countries a State designates as safe the less it will be subjected to the carrying out in depth case by case assessments and this may also have a chilling effect on the number of asylum applications made. Indeed, Kai Hailbronner has described the concept as functioning as a “psychological deterrent to achieve this end, rather than having any direct procedural gains”.7 3 European Union Directive 2013/32 of 29 June 2013, OJ 2013 L 180, 60 (Asylum Procedures Directive). 4 Michael John Hopkins, The Emperor’s New Safe Country Concepts: A UK Perspective on Sacrificing Fairness on the Altar of Efficiency, International Journal of Refugee Law (IJRL) 21 (2009), 218, 219.

Matthew Hunt, The Safe Country of Origin Concept in European Asylum Law: Past, Present and Future, IJRL 26 (2014), 500, 501. 5

European Commission, Information Note on the follow-up to the European Council Conclusions of 26 June 2015 on “safe countries of origin”, July 2015, 11, available at: http://bit.ly/1MCLLb3 (accessed on 18 April 2017). 6

Kai Hailbronner, The Concept of “Safe Country” and Expeditious Asylum Procedures: A Western European Perspective, IJRL 5 (1993), 31, 32. 7

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III. Are Safe Lists Contrary to Fundamental Rights Standards? As early as 1991, the Office of the United Nations High Commissioner for Refugees (UNHCR), expressed concern over the safe country concept – “if it serves to block an access to a status determination procedure, or where it results in serious inroads into procedural safeguards, it is to be strongly discouraged”.8 If the concept functioned to a priori preclude a certain class of asylum seekers, it would be in the UNHCR’s view “inconsistent with the spirit and possibly the letter of the 1951 Convention relating to the Status of Refugees”.9 Crucially, it cannot be applied to the question of admissibility but only to the issue of determination.10 Thus, the acceptability of the concept turns on the integrity of the available procedure to gain asylum and how it is applied in practice, including safeguards. It has been suggested by some organisations that the designation of a country as safe is contrary to the prohibition of discriminatory treatment on the grounds of country of origin enshrined in Article 3 Refugee Convention,11 Article 14 European Convention on Human Rights12 (ECHR) and Article 21 Charter of Fundamental Rights13 (CFR). The Court of Justice of the European Union (CJEU) found that in order to avoid any discrimination the prioritised procedure must not deprive applicants of the guarantees required by Article 23 of Directive 2005/85 (now Article 31), which apply to all forms of procedure, providing that an accelerated examination procedure must be in accordance with the basic principles and guarantees as laid down in the second chapter of the Directive.14

Office of the United Nations High Commissioner for Refugees (UNHCR), Background Note on the Safe Country Concept and Refugee Status, EC/SCP/68, 26 July 1991, para. 10, available at: http:// www.unhcr.org/3ae68ccec.html (accessed on 10 November 2016). 8

9

Ibid.

UNHCR, Global Consultations on International Protections, 2nd Meeting, Asylum Processes (Fair and Efficient Asylum Procedures, UN Doc. EC/GC/01/12 (2001). 10

11

Convention Relating to the Status of Refugees, 28 July 1951, UNTS 189, 137.

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, UNTS 213, 222 (ECHR). 12

13

Charter of Fundamental Rights of the European Union, OJ 2010 C83, 2, 389.

14

Asylum Procedures Directive.

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The designation of safe country of origin is a rebuttable presumption, and such designation may only occur if the applicant in question “has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with Directive 2011/95/EU”.15 The CJEU held that applicants must have: a sufficient period of time within which to gather and present the necessary material in support of their application, thus allowing the determining authority to carry out a fair and comprehensive examination of [the application] and to ensure that the applicants are not exposed to any dangers in their country of origin.16

Pursuant to Article 14 APD applicants must be given a personal interview on the substance of the application before a decision is taken in the first instance, while Article 15 provides for the right to have a trained personal interpreter. However, the requirement of Article 14 may be dispensed with if the determining authority on the basis of available evidence can make a positive decision on the question of refugee status. Given the burden on applicants from safe countries to rebut the presumption it would seem particularly important not to dispense with this requirement in order to give an opportunity to adequately present their case. Currently, the provision of free legal and procedural assistance is only made by Articles 20–23 in cases of appeals. However, Article 20 (3) has an exemption clause allowing Member States to refrain from providing free legal assistance and representation where the appeal has no tangible prospects of success. Owing solely to the designation as a safe country it would seem highly likely that such an appeal would be treated as falling within the exemption clause. It is the opinion of the Fundamental Rights Agency (FRA) that this should be extended to applicants in the first instance, again considering the special difficulties they face in rebutting the presumption of safety.17 Failure to provide adequate legal assistance may be an infringement of the right to a practical and Ibid.; Art. 36 (1)(b) EU Directive 2011/95 of 13 December 2011, OJ 2011 L 337, 9 (emphasis added). 15

16 European Court of Justice (ECJ), H.I.D., B.A. v. Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General, Case C-175/11, Judgment of 31 January 2013, para. 75. 17 Fundamental Rights Agency (FRA), Opinion concerning an EU common list of safe countries of origin, 19, available at: http://fra.europa.eu/en/opinion/2016/fra-opinion-concerning-eu-common-listsafe-countries-origin (accessed on 1 February 2017) (FRA Opinion).

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effective remedy (against a refusal of asylum) as enshrined in Article 47 which the CJEU has found to be part of the principle of effective judicial protection.18 In its pursuit of a common asylum policy the EU must ensure compliance with the principle of non-refoulement, which is the cornerstone of the Refugee Convention. Indeed Article 19 CFR specifically prohibits refoulement along with collective expulsion. The FRA suggested that applicants from the proposed EU common list of safe countries be granted an automatic right to stay in the Member State during an appeal procedure again owing to the particular risk of refoulement which they may face.19

IV. Safe Country of Origin Concept in Germany In 1993 the Sozialdemokratische Partei Deutschlands, the Christlich Demokratische Union/Christlich-Soziale Union, and the Freie Demokratische Partei initiated a change of the Basic Law and thereby introduced Article 16 (a)(3) cl. 1 Basic Law.20 With the approval of the Federal Council (Bundesrat) the German Parliament (Bundestag) can enact a law and therein declare certain States safe countries of origin. The conditions set out in the Basic Law are that it must be safely concluded that these States are exempt from political persecution and inhuman or degrading treatment or punishment based on the laws of these States, enforcement practices and general political conditions. Through a combination of amendments and the introduction of new asylum laws Germany has since modified and developed this concept. The Asylum Act21 in its Section 29a (2) refers to Annex II which contains a list of safe countries of origin in accordance with Article 16 (a)(3) cl. 1 Basic Law. There is a rebuttable presumption that in these States no person is subjected to persecution. Section 29a (1) Asylum Act provides for the rejection of asylum applications on the grounds of being manifestly unfounded. Such a rejection entails a shortened time ECJ, Centre public d’action sociale d’Ottignies Louvain-la-Neuve v. Moussa Abdida, Case C-562/ 13, Judgment of 18 December 2014, para. 45. 18

19

FRA Opinion (note 17).

Basic Law for the Federal Republic of Germany (Grundgesetz), 23 May 1949, Bundesgesetzblatt (BGBl.) I, 1, as amended on 23 December 2014, BGBl. I, 2438. 20

Asylum Act (Asylgesetz), 2 September 2008, BGBl. I, 1798, as amended on 11 March 2016, BGBl. I, 394. 21

576 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

limit of just one week to bring an action.22 While regular decisions based on the Asylum Act allow for a time limit of two weeks23 and in general, German administrative law allows for a time limit of one month to bring action, cf. sections 70, 74 Code of Administrative Court Procedure24. At the same time, the person concerned must file for a postponement of the deportation, as otherwise the appeal will be dealt with in their absence. Further changes to the Asylum Act affecting rights and obligations of persons arriving from ‘safe countries of origin’ occurred at the end of 2015. Minors from safe countries of origin do not benefit from the general rule that minors receive a “temporary suspension of deportation” (‘Duldung’ or ‘tolerance’) to finish their education as provided for by section 60a (2) cl. 4 Residence Act.25 Section 11 (7) cl. 1 No. 1 Residence Act allows the bureau responsible for deciding asylum applications (Bundesamt für Migration und Flüchtlinge (BAMF)) to put a travel ban on those persons. Furthermore, until conclusion of the asylum procedure, they are forced (unlike other asylum seekers) to live in the housing to which they were first allocated.26 Finally, section 61 (1) Asylum Act forbids any employment during their stay in Germany. Currently the German list of safe countries of origin comprises eight States: Albania, Bosnia and Herzegovina, Ghana, Kosovo, the Former Yugoslav Republic Macedonia, Montenegro, Senegal, and Serbia. On 2 May 2016 the Bundestag agreed to a legislative change27 that is supposed to soon include the so-called Maghreb States: Tunisia, Algeria, and Morocco.28 Despite the low rates of positive asylum decisions for all three countries (5.2% of Moroccan, 4.2% of Algerian, and 1.3% of Tunisian 22

Section 74 (1), 36 (1), (3) Sentence 1 Asylum Act.

23

Section 74 (1) Asylum Act.

Code of Administrative Court Procedure (Verwaltungsgerichtsordnung), 27 April 1953, BGBl. I, 157, as amended on 10 October 2013, BGBl. I, 3786. 24

25 Residence Act (Aufenthaltsgesetz), 25 February 2008, BGBl. I, 162, as amended on 11 March 2016, BGBl. I, 394. 26

Section 47 (1)(a) Asylum Act.

German Parliament (Bundestag), Draft Law of the Federal Government, 6 April 2016, Bundestagsdrucksachen (BT-Drs.) 18/8039. 27

Bundestag, Recommendation and Report of the Committee on Internal Affairs – printed matter 18/8039, 2 May 2016, BT-Drs. 18/8311. 28

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asylum seekers were granted protection in Germany in 2016),29 Bulgaria is the only Member State of the EU to list Algeria as a safe country of origin up until now. No other Member State has (yet) listed a Maghreb State as safe according to Directive 2013/32/EU.30 After several postponements of a final decision in summer 2016, on 10 March 2017 the Federal Council (Bundesrat) rejected the proposal to include the Maghreb States into the list because of massive objections by the Green Party.31 If the German Government or the Federal Council wishes to further pursue the issue, one of them must forward the matter to the Mediation Committee (Vermittlungsausschuss) – a move which thus far, has not been undertaken.

V. The Individual Countries Bearing in mind these preconditions set by constitutional law as well as European law, an assessment of the individual countries can ensue. Has the Bundestag sufficiently shown that it can be safely concluded that the Maghreb States are safe? Which circumstances must be evaluated? What are the specifics for the individual countries? With regard to all three Maghreb States not only the parliamentary opposition32 but also the German Institute for Human Rights,33 non-governmental organisations,34 as well as clerical institutions35 have criticised the draft legislation. 29 Bundestag, Supplementary Information on the Asylum Statistics, 21 February 2017, BT-Drs. 18/ 11262, 4. 30

Asylum Procedures Directive.

Federal Council of Germany (Bundesrat), Decision of the Federal Council, 10 March 2017, Bundesratsdrucksachen (BR-Drs.) 257/16. 31

Bundestag, Resolution Proposal of the Third Session on the Draft Law of the Federal Government – printed matters 18/8039, 18/8311, 11 May 2016, BT-Drs. 18/8425. 32

33 German Institute for Human Rights, Written statement of the German Institute for Human Rights to the draft legislation, 2 February 2016, available at: http://www.institut-fuer-menschenrechte.de/ fileadmin/user_upload/Publikationen/Stellungnahmen/Stellungnahme_des_Instituts_zum_Referenten entwurf_der_Bundesregierung_Sichere_Herkunftsstaaten_AMT.pdf (accessed on 26 March 2017). 34 Stellungnahme an den Innenausschuss für die Sachverständigenanhörung am 25.04.2016, 22 April 2016, Ausschussdrucksache des Innenausschusses 18(4)546 C. 35 Evangelic Church in Germany (Evangelische Kirche in Deutschland) and Commissariat of German Bishops (Kommissariat der Deutschen Bischöfe), Common statement on the draft legislation, 2 February 2016, available at: https://www.ekd.de/download/2016-2-2-Gemeinsame_Stellungnahme_der_Kirchen. pdf (accessed on 29 June 2016).

578 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 A. Morocco

The Kingdom of Morocco, lead by Head of State King Mohammed VI and Head of Government Abdelilah Benkirane, is inhabited by around 33 million mainly Sunni Muslim people. Its territory purportedly comprises the region of Western Sahara, being occupied by Morocco since 1975 and since then leaving open the question of independence demanded by its population.36 Efforts to enhance the process of independence have repeatedly been violently crushed.37 In July 2011, a new Constitution was adopted which was well received by international observers.38

1. Freedom of Expression and Assembly Articles 28 and 165 Moroccan Constitution of 201139 formally grant freedom of expression as well as the freedom of the media. At the same time, a new section of the Penal Code40 – supposedly preventing people from crossing “red lines” such as criticism of the monarch or the Islamic religion or supporting the independence of Western Sahara – repeatedly led to imprisonments of non-violent speech offenses during 2015 and 2016.41 In addition, several human rights activists have been stopped Clemens Feinäugle, Western Sahara (Advisory Opinion), in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Vol. X (2012), 861, 864. 36

37 Human Rights Council (HRC), Report of Special Rapporteur on torture and other cruel, unhuman or degrading treatment or punishment, Juan E. Méndez, UN Doc. A/HRC/22/53/Add.2 (2013), para. 84. 38

Ibid., para. 68.

Constitution of Morocco (Constitution), 30 July 2011, Bulletin Officiel n° 5964 bis, available at: http://publicofficialsfinancialdisclosure.worldbank.org/sites/fdl/files/assets/law-library-files/Morocco_ Constitution_2011_fr.pdf (accessed on 30 May 2017). 39

Criminal Code of Marocco (Code Pénal), 5 June 1963, Bulletin Officiel n° 2640 bis, available at: http://www.abhoer.ma/pages_externes//Textes%20juridiques/dahir/Dahir%20n%C2%B01-59-413% 20du%2026%20novembre%201962%20portant%20approbation%20du%20text%20du%20code%2 0p%C3%A9nal.pdf (accessed on 30 May 2017). 40

41 Human Rights Watch, World Report 2017, available via: https://www.hrw.org/world-report/ 2017 (accessed on 18 April 2017), 432 et seq.; Amnesty International, Report 2015/16: The State of the World’s Human Rights, 23 February 2016, available at: https://www.amnesty.org/en/documents/pol 10/2552/2016/en/ (accessed on 18 April 2017), 257; United States (US) State Department, Human Rights Report Morocco 2015, available at: https://www.state.gov/documents/organization/253151.pdf (accessed on 18 April 2017), 13 et seq.

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from leaving the country to attend human rights events abroad and were subjected to interrogations.42 The new Constitution of 2011 also guarantees freedom of assembly and association, however, various interest groups were still denied official registration. For example, Moroccan Courts upheld the decision that the Ifni Memory and Rights Association endangers Morocco’s territorial integrity by merely demanding further political rights of the population of the Ifni region.43 In August 2016, eight activists were sentenced to prison for one year after they peacefully protested for the enhancement of the rights of the Ifni people.44 Other groups, such as al-Adl wal-Ihsan, that openly question the religious and spiritual authority of the King, have been denied registration without official explanation.45

2. Torture and Other Ill-Treatment Incidents of torture and other ill-treatment inflicted on detainees to produce confessions have repeatedly come to light both in case of national security and terrorism and beyond.46 For example, Ali Aarass remains in prison despite the fact that three years ago, the UN Working Group on Arbitrary Detention found that his conviction was based on a confession obtained under torture.47 After reports became public that he and other detainees had been subjected to ill-treatment, he was transferred to another prison where he still remains in solitary confinement.48

42

Amnesty International (note 41).

43

Human Rights Watch (note 41), 433.

44

Amnesty International (note 41), 259.

45

Human Rights Watch (note 41), 433.

HRC (note 37), paras. 72, 74, 81, 83; US State Department (note 41), 3; Amnesty International (note 41), 259. 46

47

Amnesty International (note 41), 260.

48

Ibid.

580 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

3. Rights of LGBTI Persons In 2015, five men were sentenced to prison based on Article 489 Penal Code, which punishes consensual same-sex sexual relations49 and others have been fined for minor offences based on this law.50 In addition, the government deems LGBTI orientation illegal and the protection of anti-discrimination laws is not enjoyed by LGBTI persons, leaving them highly stigmatised.51

4. Women’s Rights The so-called Moudawana, the Moroccan family law, passed in 1958 and significantly revised in 2004, formally grants equality to men and women.52 In order to marry, both men and women must be eighteen years old, 53 however, exceptions can be made if both the parents and a competent court find that the minor girl is mature enough to fulfil her marital duties.54 Despite such a high formal threshold, from 2007 to 2013, an average of 85-92% of such applications were accepted by competent courts.55 Since the 2004 revision, women may file for a divorce.56 However, contrary to men filing for divorce, women must provide a substantial reason, in many cases preventing them from filing for divorce in the first place.57 Furthermore, there are no laws which criminalise domestic violence or establish protections for domestic violence victims.58 49

Ibid.; Bundestag, Human Rights Situation in Marocco, 7 June 2016, BT-Drs. 18/08693, 9 et seq.

50

Bundestag (note 49).

51

US State Department (note 41), 33.

Staatssekretariat für Migration SEM der Schweizerischen Eidgenossenschaft, Focus Marokko: Frauen in der marokkanischen Gesellschaft, 18 November 2015, 4, available via: https://www.sem. admin.ch/sem/de/home/internationales/herkunftslaender.html (accessed on 18 April 2017). 52

53

Ibid., 3.

54

Ibid.

55

Human Rights Watch (note 41), 437; US State Department (note 41), 33.

56

Ibid.

57

Ibid.

58

Human Rights Watch (note 41), 437.

GERMAN PRACTICE

581

B. Algeria

The People’s Democratic Republic of Algeria is a multiparty republic whose Head of State, President Abdelaziz Bouteflika has been repeatedly re-elected since 1999. Its estimated 40 million inhabitants are largely Sunni Muslims.

1. Freedom of Expression and Assembly Generally, this right is granted by the Algerian Constitution in Articles 36 and 41.59 Still, a major source for advertising in newspapers are governmental grants.60 In order to liberate this sector, in 2014, the Government allowed for more privatisation.61 However, as it contains various restrictions like a high dependence on revenues from public-sector advertising,62 this liberation is hardly suitable to effectively end an overall censorship by the government. Several activists, including bloggers, have been sentenced to either fines or in some cases even imprisonment.63 The German government condemned certain incidents, like the imprisonment of Youcef Ouled Dada for two years for showing a video of a clash where policemen robbed a shop, as being in violation of the internationally granted freedom of expression.64 As in Morocco, many interest groups have been denied registration; the most notorious example being Amnesty International65 and the registration of LGBTI interest 59 Constitution of Algeria, 8 December 1996, Journal officiel de la République algérienne démocratique et populaire (JORADP) No. 76, available at: http://www.servat.unibe.ch/icl/ag00000_.html (accessed on 30 May 2017). 60 HRC, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, UN Doc. A/HRC/20/17/Add.1 (2012), para. 45; US State Department, Human Rights Report Algeria 2015, available at: https://www.state.gov/documents/ organization/253129.pdf (accessed on 18 April 2017), 13; Bundestag, Menschenrechliche Lage in Algerien, 7 June 2016, BT-Drs. 18/08694, 10. 61

Human Rights Watch (note 41), 74; Bundestag (note 60), 10.

62

Ibid.

63

Human Rights Watch (note 41), 74; Amnesty International (note 41), 65 et seq.

64

Bundestag (note 60), 11.

65

Amnesty International (note 41), 63.

582 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

groups is prohibited.66 The New Law on Association67 contains various vague notions, including the possibility to deny registration if the applicants aims are not “in the general interest” of Algeria, cf. Article 2. Members of unregistered groups face up to six months’ imprisonment and fines.68 There is a ban on all assemblies in Algeria’s capital Algiers due to the declaration of a state of emergency (Article 91 Constitution of Algeria) and recently in December 2015, a court imprisoned several individuals for one year following an unarmed and peaceful demonstration on the grounds of offending public institutions.69

2. Torture and Other Ill-Treatment The Algerian authorities block access to UN human rights mechanisms, including those mandated to investigate incidents of torture and other ill-treatment, counter terrorism and enforced disappearance.70 Even though State officials committing torture face up to twenty years imprisonment (cf. Article 263 ter Algerian Penal Code71), various claims have been brought by detainees during 2015.72 For example, certain imprisoned members of the Movement for the Autonomy of Mzab, including their leader, claimed being abused by their guards and later also being denied medical support after a hunger strike.73 Similar claims have come to light in the last year. Among them a young female detainee who filed a complaint against a police officer alleging he raped her. While an investigation of DNA samples was initiated, the investigators refused to publish the results.74 No convictions based on the prohibition 66

Bundestag (note 60), 8.

Associations Act (Loi No. 12-06 relative aux associations), 12 January 2012, JORADP No. 02, available at: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/dmag/dv/dmag2012 0125_09_/dmag20120125_09_fr.pdf (accessed on 30 May 2017). 67

68

Human Rights Watch (note 41), 73; Amnesty International (note 41), 63.

69

Human Rights Watch (note 41), 72; Amnesty International (note 41), 63.

70

Amnesty International (note 41), 63.

Penal Code (Code Pénal, Ordonnance No. 66–156), 8 June 1966, JORADP No. 49, available at: http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/68519/77621/F991193036/DZA-68519.pdf (accessed on 30 May 2017). 71

72

US State Department (note 60), 3.

73

Ibid.

74

Ibid.

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of torture or other ill-treatment by State agents have become public during the last number of years.75

3. Rights of LGBTI Persons Sections 338 and 333 (2) Algerian Penal Code punish consensual same-sex relations. Furthermore, no public records are kept in relation to prosecutions under these sections.76 The German government presumes that the sections are actually applied and also that affected persons are indeed being attacked.77

4. Women’s Rights In Algeria, women’s rights have traditionally been heavily restricted and in many areas such as employment and access to fundamental education in rural areas women are not granted equal rights.78 However, the Penal Code has been amended and now penalises physical violence against a spouse and inappropriate public assaults on women.79 Comprehensive legal and factual protection is still lacking though, for example raping girls under the age of eighteen still provides criminal immunity of the offender if he marries the victim (Article 334 Penal Code).80

C. Tunisia

The Republic of Tunisia with its estimated 11 million predominantly Sunni Muslim inhabitants is led by President Béji Caïd Essebsi. Following the Jasmine Revolution of 2011, a new Constitution was adopted by the National Constituent Assembly on 27 Jan75

Ibid.

76

Bundestag (note 60), 8.

77

Ibid.

HRC, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, UN Doc. A/HRC/17/26/Add.3 (2011), paras. 74, 75. 78

79

Human Rights Watch (note 41), 74; Amnesty International (note 41), 67.

80

Amnesty International (note 41), 67.

584 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

uary 2014 and while it does guarantee several key civil, political, cultural and economic rights, some of these guarantees are still contradicted by various pieces of legislation. The state of emergency declared after the 2015 terrorist attacks has been extended on numerous occasions by President Essebsi and remained in force in early January 2017.81

1. Freedom of Expression and Assembly In the aftermath of the series of deadly terror attacks a state of emergency was declared on 24 November 2015 pursuant to a 1978 decree,82 enabling the banning of strikes or demonstrations considered a threat to public order and gatherings “likely to provoke or sustain disorder” and enabling the house arrest of persons whose “activities are deemed to endanger security and public order”. Violations of the provisions of the decree are punishable by imprisonment from six months to two years and/or a fine of 60 to 2500 dinars.83 The Penal Code84 and the Code of Military Justice85 still provide for imprisonment following speech related offences such as defamation of public officials, spreading false information and harming public order and public morals. Article 91 Code of Military Justice, provides for three years imprisonment for the offence of “offending the army” and Penal Code Article 125 which makes “insulting a public official” a criminal offence. Counter terrorism legislation also forms part of the arsenal for the prosecution of journalists and bloggers, specifically complicity in terrorism. Human Rights Watch in its 2017 country report on Tunisia cited various high profile examples of prosecutions for alleged “insult” of State officials, “offending the army” in Anon., Tunisian State of Emergency Extended, Middle East Monitor, 19 October 2016, available at: https://www.middleeastmonitor.com/20161019-tunisian-state-of-emergency-extended/ (accessed on 17 April 2017). 81

1978 Decree (Décret n° 78-50), 26 January 1978, Journal Officiel de la République Tunisienne No. 07, French language version available at: http://legacy.legislation-securite.tn/fr/node/28159 (accessed on 17 April 2017). 82

83

Article 9 1978 Decree.

Tunisian Penal Code (Code Penal Tunisien), approved by Law No. 2005-46 of 6 June 2005, available at: http://www.e-justice.tn/fileadmin/fichiers_site_francais/codes_juridiques/Code_penal_12_ 07_2010_fr.pdf (accessed on 17 May 2017). 84

Tunisian Code of Military Justice, Decree of 10 January 1957, available at: http://legislationsecurite.tn/node/40920. 85

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585

relation to Facebook posts criticising the minister for defence and on charges of “complicity in terrorism”.86

2. Torture and Ill Treatment Police torture of suspects in detention remains a problem in Tunisia. Human Rights Watch has documented at least two cases of suspicious death in police custody since 2013.87 There were also several documented incidents of torture and other mistreatment in 2015. Investigations have been opened by the prosecutor at the Court of First Instance in Sidi Bouzi in relation the case of Abdelmajid Ejday who died on 13 May while held at the city’s National Guard headquarters. Ejday had filed a torture complaint four weeks earlier against officers from the same police unit force who had detained him in February. A forensic medical examination reported finding injuries on his body. On 2 February 2016, revisions of the Code of Criminal Procedure adopted by the Parliament, granting suspects the right to a lawyer from the onset of detention, and to shorten the maximum pre-charge detention to 48 hours with the possibility of one renewal. Previously Tunisian law allowed the denial of access to a lawyer for the first six days of detention.88

3. Rights of LGBTI Persons Section 230 Tunisian Penal Code89 provides for punishment of consensual samesex-relations with up to three years in prison. Additionally, under this provision there was also a three year prohibition of stay in the incident city. Human Rights watch reported a number of incidents in the past year where young males were sentenced in relation to homosexuality charges having been subjected to forced anal examinaHuman Rights Watch, 2017 Country Report: Tunisia, 12 January 2017, available at: http:// www.ecoi.net/local_link/334720/463167_en.html (accessed on 1 February 2017). 86

87

Ibid.

Human Rights Watch, Universal Periodic Review Submission on Tunisia, Third cycle of the UPR, 27th session, 6 October 2016, available at: https://www.hrw.org/news/2016/10/06/universalperiodic-review-submission-tunisia (accessed on 18 April 2017). 88

89

Article 230 Tunisian Penal Code.

586 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

tions.90 In relation to six students sentenced by a court in Kairouan to three years imprisonment and three years prohibition of stay in this city, thirteen non-governmental organisations (NGOs) described the punishment of banishment as ‘medieval’. On 28 December 2015, the Tunisian Court of First Instance ordered the suspension of Shams (an NGO pursuing sexual and gender equality and the decriminalisation of homosexual activities in Tunisia and the first of its kind to receive official authorisation) activities for 30 days as they were accused of violating NGO Law No. 88/2011.91 This suspension was overturned on appeal on 23 February 2016.92

4. Women’s Rights Women enjoy greater rights within the family than those allowed by other States in the region and Tunisia has the reputation as the most progressive Arab country regarding women’s rights.93 The adoption of a gender parity requirement in the new electoral law required political parties to alternate male and females on their lists of candidates. The subsequent 2014 parliamentary election saw women take 68 of the 217 seats.94 On 10 November 2015, Parliament adopted a law which enables women to travel with their minor children without first gaining permission from the children’s father.95 In relation to sexual violence, however, the Penal Code allows persons accused of raping women between the ages of fifteen and twenty to evade prosecution if they marry the victim.96 90

Human Rights Watch (note 86).

Decree No. 88/2011 (Décret-loi n° 2011-88), 24 September 2011, Journal Officiel de la République Tunisienne No. 74, 1977, English version available at: http://www.icnl.org/research/library/ files/Tunisia/88-2011-Eng.pdf (accessed on 28 January 2017). 91

92 Amnesty International, Report: Tunisia 2016/2017, available at: https://www.amnesty.org/en/ countries/middle-east-and-north-africa/tunisia/report-tunisia/ (accessed on 1 May 2017). 93

Human Rights Watch (note 88).

National Democratic Institute, Final Report on the 2014 Legislative and Presidential Elections in Tunisia, 60, available at: https://www.ndi.org/sites/default/files/Tunisia%20Election%20Report% 202014_EN_SOFT%20(1).pdf (accessed on 1 May 2017). 94

95 Human Rights Watch, Tunisia: A Step Forward for Women’s Rights, available at: https://www. hrw.org/news/2015/11/12/tunisia-step-forward-womens-rights (accessed on 1 May 2017). 96

Article 227(a) Tunisian Penal Code.

GERMAN PRACTICE

587

VI. Does the Designation by Germany of Morocco, Algeria and Tunisia Comply with the Terms of the Annex I to the APD? Pursuant to Article 37 (1) APD and part of the harmonisation process of the Common European Asylum System Member States may introduce legislation that allows for the national designation of safe countries of origin for the purposes of examining applications for international protection. Annex I to the APD lays down three criteria which must be answered in the negative in order to qualify for designation as a safe country of origin: generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In order to assess the situation account must be taken inter alia of the extent to which protection is provided against persecution or mistreatment on the basis of the legal system and the pertinent laws and regulations and the concrete manner in which they are practically applied, thus the de jure and de facto situation must be assessed to gain a real picture of the situation in the country. Particular attention is to be paid to whether the rights and freedoms enshrined in the ECHR (in particular non-derogable rights set out in Article 15 (2)), the rights of the International Covenant on Civil and Political Rights97 (ICCPR), and United Nations Committee for the Prevention of Torture are guaranteed. Equally important is the availability of a system of effective remedies against violations of these rights and freedoms, which presupposes adequate investigation of the allegations and incidents.

A. Generally and Consistently No Persecution

As defined in Article 9 EU Directive 2011/9598 an act of persecution must be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights in particular those rights from which no derogation can be made under Article 15 (2) ECHR or be an accumulation of different measures including human 97

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171.

98

Art. 9 EU Directive 2011/95

588 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

rights violations which have a sufficiently severe effect on the individual. Examples of such acts include: acts of physical or mental violence, including acts of sexual violence, prosecution or punishment which is disproportionate, denial of judicial redress resulting in a disproportionate or discriminatory punishment due to a protected characteristic mentioned in Article 10 EU Directive 2011/95 or acts of a genderspecific nature. In all three countries there is legislation criminalising homosexuality. The fact that a person could adopt a heterosexual narrative and hide their sexuality, something called the “reasonable tolerability” test99 was rejected by the CJEU stating that: when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin.100

However, it must be borne in mind that persecution is not the same as discrimination and a much higher threshold must be met. In response to the XYZ Judgment Amnesty International stated that the CJEU had shown itself to be “out of step with international human rights and refugee law”101 for its failure to find that criminalisation alone constitutes persecution. Guy Goodwin-Gill agrees with the CJEU in that “legislation may set the scene, but persecution requires actual or likely human intervention and an assessment of risk”102 and suggests that actual imprisonment could constitute persecution but the presence of just mere legislation would not. Indeed, there have been various high profile instances of homosexuals being imprisoned based on the offending legislation and it could be argued that these instances form part of a program of systematic persecution of homosexuals. 99 The test had already been discredited by the UK Supreme Court in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31.

ECJ, X, Y, Z v. Minister voor Immigratie en Asiel, Cases C-199/12, C-200/12, C-201/12, Judgment of 7 November 2013, 76. 100

Amnesty International, EU Court ruling a setback for refugees, Press Release, 7 November 2013, available at: https://www.amnesty.org/en/press-releases/2013/11/eu-court-ruling-setback-refugees/ (accessed on 17 April); see also, Amnesty International and the International Commission of Jurists, Observations by Amnesty International and the International Commission of Jurists on the case X, Y and Z v Minister voor Immigratie, Integratie en Asiel (C-199/12, C-200/12 and C-201/12) following the Opinion of Advocate General Sharpston of 11 July 2013, 2 October 2013, available at: https://www.icj.org/wp-content/uploads/2013/10/Observations-by-AI-and-ICJ-on-X-Y-and-Z-CJEUref-2-OCT-2013-FINAL-with-index-number-and-logos.pdf (accessed on 17 April 2017). 101

102

Guy S. Goodwin-Gill, The Dynamic of International Refugee Law, IJRL 25 (2013), 664.

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Common to all three countries is legislation which is discriminatory to women; however, it seems unlikely that the treatment of women while undesirable and a form of lower legal status would rise to the level of actual persecution. In relation to freedom of expressions and assembly, while there have been numerous instances of activists and bloggers being imprisoned in all three countries stifling constructive debate and criticism of the authorities, it may be difficult to find that they are being persecuted for the fact they are bloggers or activists. Concern has been expressed in relation to the conformity of, for example, the Tunisian 1978 decree with Article 4 ICCPR, but these rights are not absolute and as set out in the ECHR may be restricted if it serves a legitimate aim and the abrogation is proportionate to the aim sought. It is likely that the curtailment of freedom of expression and assembly could still be classed as having a legitimate aim.

B. No Torture or Inhuman or Degrading Treatment or Punishment

There are documented allegations of torture in all three countries and there is also a concerning lack of accountability and judicial remedies. In Assenov and Others v. Bulgaria103 the European Court of Human Rights (ECtHR) held that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the state unlawfully and in breach of Article 3 ECHR an effective official investigation must take place.104 The United Nations Special Rapporteur on Torture, during his follow-up mission to Tunisia in May 2014 reported that “although there was progress in fighting torture, and victims now are less afraid to file complaints, there is unfortunately very little action by prosecutors and by judges” in terms of pursuing complaints of torture alleged during the Ben Ali era and for the post 2011 revolution cases. This includes failure to conduct a “thorough, prompt and impartial investigation”105 of all suspicious deaths in custody to determine not only European Court of Human Rights (ECtHR), Assenov and Others v. Bulgaria, Appl. No. 90/ 1997/874/1086, Decision of 28 October 1998. 103

104 Although this obligation only applies to States parties to the ECHR in relation to ill-treatment alleged to have been committed within their jurisdiction, it still highlights the importance that is placed on the importance of an investigation capable of leading to punishment of those responsible.

Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Economic and Social Council (ECOSOC) Res. 1989/65 of 24 May 1989. 105

590 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

the person responsible but whether some pattern can be discerned whether there is a systemic element.106 Regarding Algeria, although some of the crimes committed by security forces and certain armed non-State actors during the armed conflict in the 1990s might amount to crimes against humanity; impunity for these crimes is upheld until today.107 The Algerian authorities block access to UN human rights mechanisms, including those mandated to investigate incidents of torture and other illtreatment, counter terrorism and enforced disappearance.108 No convictions based on the prohibition of torture or other ill-treatment by Algerian State agents have become public during the last years. In Morocco, incidents of torture and other ill-treatment inflicted on detainees to produce confessions have repeatedly come to light both in case of national security and terrorism and beyond.109 For example, Ali Aarass remains in prison despite the fact that three years ago, the UN Working Group on Arbitrary Detention found that his conviction was based on a confession obtained under torture.110 In the seminal case of Ireland v. the United Kingdom, the Court held degrading treatment to be that which is said “to arouse in its victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them”but insisted that the assessment of the minimum level of severity relating to degrading treatment depends on all the circumstances of the case.111 In Smith and Grady, the ECtHR was asked to decide whether the dismissal of persons from the British Armed Forces based on their sexual orientation, amounted to degrading treatment. The Court found the treatment to be humiliating but having looked at all the circumstances of the case found the treatment did not reach the minimum level of severity required to bring it under the rubric of Article 3 ECHR.112 106 Amnesty International, Annual Report 2016/2016 Tunisia, available at: https://www.amnesty. org/en/countries/middle-east-and-north-africa/tunisia/report-tunisia/ (accessed on 17 April 2017). 107

Human Rights Watch (note 41), 76; Amnesty International (note 41), 65.

108

Amnesty International (note 41), 63.

HRC (note 37), paras. 72, 74, 81, 83; US State Department (note 41), 3; Amnesty International (note 41), 259. 109

110

Amnesty International (note 41), 260.

111

ECtHR, Ireland v. the United Kingdom, Appl. No. 5310/71, Decision of 18 January 1978, 66,

167

Id., Smith and Grady v. the United Kingdom, Appl. No. 33985/96 and 33986/96, Decision of 27 September 1999. 112

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In the most recent case of the CJEU dealing with degrading treatment, a single slap of minors while in police custody was considered to be degrading treatment. The Grand Chamber stated that “the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity” and that “there is a particularly strong link between the concepts of “degrading” treatment or punishment within the meaning of Article 3 of the Convention and respect for “dignity””.113 The treatment of homosexuals including; the widespread use of anal examinations which have “no medical justification”,114 and imprisonment based on sexual orientation amounting to arbitrary detention,115 represent a severe affront to their dignity and deprivation of their liberty, and constitutes degrading treatment as conceived by the ECtHR.

C. No Threat by Reason of Indiscriminate Violence in Situations of International or Internal Armed Conflict

It is clear that while situation of internal armed conflict did exist in the Maghreb States a number of years ago, the political situation has settled considerably and there does not exist a situation of internal armed conflict, thus the first criterion is currently satisfied.

VII. Conclusion It is clear from the preceding that the designation of the Maghreb States as safe is not in compliance with the terms of Annex I. Although it may be harder to show that the criterion of consistently and generally no persecution is not fulfilled, without question the second criterion in relation to inhuman and degrading treatment is met. In particular the situation remains problematic in relation to homosexuals. The 113

Id., Bouyid v. Belgium, Appl. No. 23380/09, Decision of 28 September 2015.

Committee Against Torture, Concluding observations on the third periodic report of Tunisia, 10 June 2016, para. 42, available via: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download. aspx?symbolno=CAT%2FC%2FTUN%2FCO%2F3&Lang=en (accessed on 1 May 2017). 114

115 Human Rights Council, Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, 17 November 2011, UN Doc. A/HRC/ 19/41 (2011), para. 14.

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recital to the APD talks about the need to take cognisance of “the complexity of gender-related claims” when dealing with safe country of origin procedures, indeed it seems that particular groups such as women and LGBTI disproportionately face abuse and discrimination.116 Already some States have separate country direction as to whether the country is safe for men or women; however, in the case of the Maghreb States this would also need to be extended for other groups such as LGBTI. As previously noted Article 36 (1) APD does in fact provide for such an eventuality with its “serious ground for considering the country of origin not to be safe due to the particular circumstances of the applicant” – membership of the minority group might fulfil this criterion. Indeed, the FRA recommended that the safe country of origin rule should not apply to minority groups including LGBTI, as they are at a higher risk of refoulement.117 Like international refugee law, European asylum law must be concerned with the individual circumstances, and policy reasons should not justify a move towards a generalised assessment based on a presumption, albeit a rebuttable one. It is difficult in practice to reconcile the conducting of such a generalised and expedited asylum procedure with the fundamentally individual assessment required by refugee law. The apprehension being that it triggers an inferior determination process whereby an arbitrary distinction is being drawn and applicants have inadequate opportunity to present their personal or group specific “counter-indications” for rebutting the presumption. This concern is particularly acute when appeals are conducted out of country. It is undesirable to politicise a humanitarian process, the key concern must remain the nature and level of risk attached to a particular person. As we have seen from the foregoing the use of the safe country concept can have troubling implications for fundamental rights obligations, particularly in relation to specific groups. The designation of the Maghreb States as ‘safe countries of origin’ does not satisfy the criterion laid down in Annex I APD as it may entail a breach of the obligation of nonrefoulement for certain groups of persons.

116

Recital 32 Preamble Asylum Procedures Directive.

117

FRA Opinion (note 17).

Finding a Solution Without Addressing the Problem: The 2014 Ems-Dollard Treaty SEBASTIAN THO PESCH I. Introduction On 24 October 2014, the Federal Republic of Germany and the Kingdom of the Netherlands concluded a treaty concerning the use and administration of the territorial sea between three and twelve nautical miles (nm) in the border region between them. The German Parliament (Bundestag) authorised the ratification of the treaty in June 2016.1 The conclusion of this treaty marks the preliminary end of a maritime border dispute preceding modern international law. It is preliminary in that it does not actually solve the dispute at hand but rather freezes the status quo. However, the rules of the treaty are so comprehensive that there are now only few incentives for the parties to ever seek a permanent solution for the underlying controversy. Then again, this might have been the strategy the States were pursuing all along. II. The Background The border between the Netherlands and Germany through the river Ems dates back to the Middle Ages. Then, it was a border between two feudal States. A feudal Research Fellow at the Center for Security and Law, and Doctoral Candidate at Bucerius Law School, Hamburg; Associate of the International Max Planck Research School for Maritime Affairs. The author thanks Julian Udich and Inês Aguiar Branco for their helpful comments on earlier drafts. Any errors are solely those of the author. Vertrag zwischen der Bundesrepublik Deutschland und dem Königreich der Niederlande über die Nutzung und Verwaltung des Küstenmeeres zwischen 3 und 12 Seemeilen, 24 October 2014, Bundesgesetzblatt (BGBl.) II 2016, 603 (2014 Ems-Dollard Treaty). 1

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agreement from 1464 fixed the border at the low-water line of the western shore of the river Ems.2 Modern Germany argues that the feudal agreement still governs the course of the border between the neighbouring States. This would put the entire river and its estuary under German sovereignty. Because the mouth of the Ems widens significantly as it approaches the North Sea, this division of territory would be very advantageous for Germany. Furthermore, it would have significant implications on the course of the border in the territorial sea as it would veer off to the northwest, cutting into waters directly off the Dutch coast. The Netherlands, however, are of the opinion that the border is governed by general international law, resulting in the application of the thalweg principle.3 The thalweg is the deepest point of a river bed. This line is thus most advantageous for shipping. Controlling the thalweg implies control of the river and the goods transported on it. In order to avoid one of two littoral States monopolising such control, a river border is assumed under general public international law to run along the thalweg. However, the thalweg principle is only applicable if there is no special agreement or practice to indicate another boundary.4 The Netherlands argue that there is no such agreement or practice and that the border therefore runs along the thalweg. For the territorial sea, Article 15 United Nations Convention on the Law of the Sea (UNCLOS)5 codified the rule that the border runs along the equidistance line, which is favoured by the Netherlands. Germany sees the 1464 feudal agreement as a historic title, thus triggering an exception explicitly provided for in Article 15 UNCLOS.

2 For details see Pascal Hector, Maßgeschneiderte Zuständigkeitsabgrenzung statt Grenzziehung, in: Wolfgang Benedek et al. (eds.), Bestand und Wandel des Völkerrechts: Beiträge zum 38. Österreichischen Völkerrechtstag 2013 in Stadtschlaining (2014), 87, 92, and Hermann Aubin/Eberhard Menzel, Gutachten über die niederländischen Ansprüche auf die Emsmündung (1949).

Rüdiger Wolfrum/Johann-Christoph Woltag, Ems-Dollard, Max Planck Encyclopedia of Public International Law, November 2010, para. 4, available via: http://www.mpepil.com (accessed on 4 January 2016). 3

4 See Geoffrey Marston, Boundary Waters, in: Rudolph Bernhardt (ed.), Encyclopedia of Public International Law, Vol. I (1992), 482. Also, the concepts of median line and thalweg can be used to denote the same principle, see International Court of Justice (ICJ), Case concerning Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999, ICJ Reports 1999, 1045, para. 25.

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 5

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III. The Ems-Dollard Regime The parties first agreed to preserve the status quo in 1929.6 They formalised their relations concerning their border in the mouth of the river Ems in 1960 with the first Ems-Dollard Treaty.7 Besides general provisions (Articles 1–7), the treaty contains numerous sections on specific practical aspects, i.e. hydraulic works (Articles 8–12), sea-marks (Articles 13–15), payment of costs (Articles 16–18), river police (Articles 19–21), notifications and complaints (Articles 22–26), surveys, soundings, and hydrological investigations (Articles 27–28), the Ems Commission (Articles 29–31), detailed special provisions (Articles 32–45), and questions surrounding the use of an arbitral tribunal (Articles 50–54). Compared to these issues, the international frontier (Articles 46–47) seems to have played a rather minor role. Most importantly, Article 46 (1) contains a sans préjudice clause, that reads: The provisions of this Treaty shall not affect the question of the course of the international frontier in the Ems Estuary. Each Contracting Party reserves its legal position in this respect.8

According to Article 7 (1), the term ‘Ems Estuary’ is further defined in Annex B section 1 1960 Ems-Dollard Treaty. Through this reference, the parties have effectively defined the area in which they could not agree on the course of a border. By explicitly defining the area of the dispute, the parties contained the geographical scope of the dispute. Later, this disagreement had its implications on the negotiations concerning the continental shelf in the North Sea. In 1964, Germany and the Netherlands concluded a treaty to delimit their parts of the continental shelf.9 However, this treaty only concerned a small part of the continental shelf’s most southern part. Given the fact that Germany could not find an agreement with its North Sea neighbours, the 6 Hans-Dietrich Treviranus, Der deutsch-niederländische Ems-Dollart-Vertrag, Heidelberg Journal of International Law (HJIL) 35 (1963), 536, 540.

Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning Arrangements for the Co-operation in the Ems Estuary, 8 April 1960, UNTS 509, 4 (1960 Ems-Dollard Treaty). See also BGBl. II 1963, 602. 7

8

For an unofficial English translation of the 1960 Ems-Dollard Treaty see UNTS 509, 64.

Vertrag zwischen der Bundesrepublik Deutschland und dem Königreich der Niederlande über die seitliche Abgrenzung des Festlandsockels in Küstennähe, 1 December 1964, BGBl. II 1965, 1142 (1964 Continental Shelf Treaty). 9

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German continental shelf boundary with the Netherlands was only determined after the 1969 judgment of the International Court of Justice.10 Besides the 1964 Continental Shelf Treaty, the original 1960 Ems-Dollard Treaty was supplemented and extended by a number of other treaties and protocols over the years.11 After the conclusion of the UNCLOS, the peace created by the Ems-Dollard regime was threatened by the possibility to extend the territorial sea from three to twelve nm. The Netherlands did so in 1985,12 followed by Germany in 1994.13 10 ICJ, North Sea Continental Shelf (Germany v. Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3.

Zusatzabkommen zu dem zwischen der Bundesrepublik Deutschland und dem Königreich der Niederlande am 8. April 1960 unterzeichneten Vertrag über die Regelung der Zusammenarbeit in der Emsmündung, 14 May 1962, BGBl. II 1963, 652; Abkommen zur Änderung des Vertrages vom 8. April 1960 zwischen der Bundesrepublik Deutschland und dem Königreich der Niederlande über die Regelung der Zusammenarbeit in der Emsmündung, 17 November 1975, BGBl. II 1978, 309; Vertrag zwischen der Bundesrepublik Deutschland und dem Königreich der Niederlande über die Zusammenarbeit im Bereich von Ems und Dollart sowie den angrenzenden Gebieten (Kooperationsvertrag Ems-Dollart), 10 September 1984, BGBl. II 1986, 509; Abkommen zwischen der Regierung der Bundesrepublik Deutschland und der Regierung des Königreichs der Niederlande über die Schiffahrtsordnung in der Emsmündung, 22 December 1986, BGBl. II 1987, 141; Protokoll zur Regelung der Zusammenarbeit zum Gewässer- und Naturschutz in der Emsmündung (Ems-Dollart-Umweltprotokoll), 22 August 1996, BGBl. II 1997, 1702. 11

12 Wet van 9 januari 1985, houdende vaststelling van de grenzen van de territoriale zee van Nederland (Staatsblad 1985, 129), Art. 1 1.: “De territoriale zee van Nederland strekt zich uit tot de lijn, waarvan elk punt gelegen is op een afstand van twaalf internationale zeemijlen, zijnde tweeëntwintig kilometer en tweehonderd vierentwintig meter, gemeten zeewaarts vanaf het dichtstbijgelegen punt van de laagwaterlijn langs de kust, met dien verstande dat, waar geheel of gedeeltelijk binnen deze afstand van deze laagwaterlijn een natuurlijk gevormde, bij eb droogvallende bodemverheffing is gelegen, die bij hoogtij onder water komt, gemeten wordt vanaf het dichtstbijgelegen punt van de laagwaterlijn van die bodemverheffing”. English translation: “The territorial sea of the Netherlands shall extend to a line, each point on which lies twelve international nautical miles, or twenty-two kilometres two hundred and twenty-four metres, seawards of the nearest point on the low-water line along the coast, with the proviso that, where a naturally formed elevation of the seabed which is covered at high tide but dry at low tide lies within this distance from the low-water line, the territorial sea shall be measured from the closest point on the low-water line of such an elevation”, Section 1 para. 1 Netherlands Territorial Sea (Demarcation) Act of 9 January 1985, UN Law of the Sea Bulletin, No. 6 1985, 16. 13 “Die seewärtige Abgrenzung des Küstenmeeres der Bundesrepublik Deutschland in der Nordsee verläuft in einem Abstand von 12 Seemeilen, gemessen von der Niedrigwasserlinie und den geraden Basislinien.”, Bekanntmachung der Proklamation der Bundesregierung über die Ausweitung des deutschen Küstenmeeres, 11 November 1994, BGBl. I 1994, 3428; English translation: “The outer limit of the territorial sea of the Federal Republic of Germany in the North Sea shall be a line running at a distance of 12 nautical miles, measured from the low-water line and the straight baselines, as appropriate”, Section I para. 1 Proclamation of 11 November 1994 by the Government of the Federal Republic of Germany concerning the extension of the breadth of the German territorial sea, UN Law of the Sea Bulletin, No. 27 1995, 55.

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Because the geographical application of the old Ems-Dollard regime was fixed by coordinates rather than through the use of the dynamic term ‘territorial sea’, the EmsDollard regime did not extend automatically with the territorial sea to twelve nm. Although the parties had agreed on the division of their parts of the continental shelf starting at three nm, this division became obsolete because by its very definition in Article 76 (1) UNCLOS, a continental shelf does not exist in the territorial sea.14 Between three and twelve nm, the extension of the territorial sea had essentially wiped out the contractual continental shelf boundary. Even though the 1964 Continental Shelf Treaty still defined a factual border between the Dutch and the German territorial sea,15 the parties saw the need to explicitly formalise the status of the territorial sea between three and twelve nm.

IV. The 2014 Treaty Although the territorial sea of both States was extended more than two decades ago, the problem only became urgent when German authorities approved the construction of an offshore wind park that was to be partly built in the disputed area between three and twelve nm.16 The Netherlands objected to this construction because, according to their legal position, it would be constructed in Dutch territorial waters. This incident caused both parties to negotiate the 2014 Ems-Dollard Treaty.

A. An Extended Sans Préjudice Clause

Again the core of the new treaty contains a sans préjudice clause in Article 4 that is identical to Article 46 (1) 1960 Ems-Dollard Treaty in its sentences two and three. A key difference, however, is that the 2014 treaty also contains a new first sentence that reads: 14

On this aspect see supra, II. B.

See Doris König/Sebastian tho Pesch, Der Festlandsockelvertrag von 1964 und seine Auswirkungen auf die deutsch-niederländische Küstenmeergrenze, HJIL 73 (2013), 483; for a different opinion see Hector (note 2), 98. 15

See Rainer Lagoni, Die Abgrenzung des Küstenmeers außerhalb der Emsmündung, Archiv des Völkerrechts 50 (2012), 348, 348–349, 371. 16

598 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 The provisions of this Treaty shall not affect the question of the course of the international frontier in the territorial sea between 3 and 12 nautical miles off the coast.17

The youngest Ems-Dollard treaty therefore does not define the area of dispute but is rather applicable in the entire territorial sea, thereby presuming the existence – and necessarily the extent – of a territorial sea. This approach might entail the danger of a circular statement because the extent of the territorial sea between three and twelve nm is what the parties disagree about. Using the territorial sea as a reference in Article 4 might therefore not seem ideal. To prevent such circularity, Article 4 has to be interpreted as to include the unspoken agreement between the parties that the area off the German and Dutch coast between three and twelve nm definitely belongs to one of the two parties. A closer examination of the wording of Article 4 supports this interpretation since it only questions the course of the international frontier and not the existence of the frontier itself. This aspect might also be important to prevent other States from abusing the current situation: Because the entire area off the German-Dutch coast between three and twelve nm is either German or Dutch territorial sea, no State can claim that the area has to be treated as High Seas.

B. A Different Approach

With the 2014 treaty, the parties chose a slightly different approach compared to previous treaties. The easy and obvious option would have been to simply extend the scope of the already comprehensive Ems-Dollard regime to cover the area between three and twelve nm. However, they chose to only address the problems at hand rather than addressing the roots of the problem. Like the old treaty regime applicable until three nm, a line defined in Article 6 divides certain competences geographically between the parties. Substantively, the line only divides the rights of Germany and the Netherlands concerning installations for the production of renewable energy and all other installations, cables and pipelines, and all non-living resources without prejudice to each party’s legal position concerning the application of the 1964 continental shelf treaty between three and twelve nautical miles.18

17

Translation by the author.

18

Art. 5 2014 Ems-Dollard Treaty; translation by the author.

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This rather narrow area of application is clearly set out to address the construction of the wind park. Apart from this, the wording of Article 5 also hints at a disagreement concerning the application of the 1964 Continental Shelf Treaty. Such a disagreement is entirely unnecessary because both parties are obviously of the opinion that the disputed area is covered by territorial sea. As evident from Article 76 (1) UNCLOS, to which both States are parties, the legal continental shelf only starts beyond the territorial sea. This means that there can never be a continental shelf in the territorial sea because the regimes are legally exclusive. This is only logical, because the coastal State already has full sovereignty over its territorial sea,19 so there is no room for additional “sovereign rights for the purpose of exploring it and exploiting its natural resources”20 in territorial waters. Because the 1964 Continental Shelf Treaty delimits the continental shelf and not the territorial sea, it cannot apply to the newly territorial waters between three and twelve nm. Disagreement in this regard is therefore unnecessary.

C. A Central Marine Traffic Management and Other Provisions Concerning Waterworks

Finally, a central marine traffic management will be set up.21 Its seat will be in Germany,22 but costs are shared by the two countries23 and decisions will be made by a bipartisan commission.24 In addition, the 2014 Ems-Dollard Treaty comprises numerous provisions on different aspects of waterworks.25

V. Critique Although the entire Ems-Dollard regime addresses the public international law part of the conflict comprehensively, the parties did not explicitly clarify the effect of 19

Art. 2 (2) UNCLOS.

20

Art. 77 (1) UNCLOS.

21

Art. 7 (1) 2014 Ems-Dollard Treaty.

22

Art. 7 (2) 2014 Ems-Dollard Treaty.

23

Art. 7 (3) 2014 Ems-Dollard Treaty.

24

Art. 7 (2), (5), and (6), and Arts. 19–22 2014 Ems-Dollard Treaty.

25

Arts. 9–18 2014 Ems-Dollard Treaty.

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the treaty in domestic law. To illustrate, German law is geographically, in principle, only applicable on German territory. While it might be applicable on the German continental shelf and in the German exclusive economic zone, it certainly is not applicable in the Dutch territorial sea. But if there is a disputed area between three and twelve nm at the western end of the German territorial sea, how is the area of application of German law determined?26 Anybody who wants to apply domestic law is confronted with the 2014 Ems-Dollard Treaty and its core message that the parties could not agree on a border. There is a line, but its substantive effect is very limited. As long as the actual border is still shrouded in mystery, there will be a certain uncertainty surrounding the application of domestic law in the vicinity of the disputed area. This problem could be easily curtailed either by a provision on treaty level, allowing both countries to apply their domestic law until the line defined in Article 6, or at least through domestic legislation, considering the disputed area east of the line defined by Article 6 to be German territory for the purpose of applying German law.

VI. Conclusion and Outlook The parties have – once again – achieved a truce in their dispute without solving the underlying conflict. It is hard to say how long this treaty will be able to sufficiently govern the need of both States to further develop the area. However, it must be acknowledged that the way in which this dispute concerning territory (and implicitly maritime areas) was treated has been rather unique and it might be the blueprint for the solution of other maritime disputes. Germany and the Netherlands managed to implement a framework in which both parties can exploit resources and safeguard their economic interests in a contested area without giving up their claims. It shows that clever drafting can limit the importance of definite borders as long as the rights and interests normally associated with sovereignty can be exercised. Even though this solution only works in practice due to the good neighbourly terms on which Germany and the Netherlands operate (the treaty was signed on a boat in the middle of the disputed area!), such arrangements show the potential of negotiation and legal creativity. With good will and real effort, similar arrangements could be a solution for 26 This question was raised in proceedings concerning interim legal protection, see the ruling of the Higher Administrative Court of Schleswig (Oberverwaltungsgericht Schleswig), 4 B 58/13, Decision of 14 November 2013, reprinted in: Recht der Transportwirtschaft 2014, 371.

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major maritime conflicts like the myriad of territorial claims in the South China Sea. If, however, a practical solution concerning the economic interests of the parties could be reached, such a consensus might prove to be more tempting than the pursuit of territorial claims that, due to their contested nature, are worthless in practice or at least a threat for the political reputation. Keeping up territorial claims formally but agreeing on a modus operandi in practice could prove to be a catalyst for peace. The Ems-Dollard regime is a pragmatic approach to a real problem. It might, at first, be hard to understand how a border dispute can be governed without addressing the border itself. However, if the parties really want to find a solution, and an agreement concerning the border itself is unattainable, the solution might be to agree on everything but the border. Traditionally, public international law (implicitly) regards borders as a prerequisite for the proper exercise of sovereignty. Cooperative agreements, such as the youngest Ems-Dollard Treaty, render such presumptions obsolete. They show that modern international law can move away from the dogma of borders and towards practical agreements tailored to the needs of the parties.

The Germanwings Disaster: Legal Debates and Consequences MARCUS SCHLADEBACH

I. The Chronology of the Disaster In general, the aviation sector is a high-tech branch: Most of the flight time aircrafts can fly automatically, radar surveillance check the concrete flight position every second, and anti-collision systems,1 like GPWS2 and ACAS/TCAS,3 help to avoid dangerous situations in the sky. Nevertheless, the Germanwings Disaster of 24 March 2015 has shown that up to this day the technical flight safety is violable by other factors: the personal constitution of the pilot, the communication inside the flight crew, the locked or unlocked state of cockpit doors, and with it conditions which are not to be regulated technically: the human factor. The dramatic events in the morning hours of 24 March 2015 can be summarised basically as follows:4 On 24 March 2015 the Airbus A 320-211 took off from Düsseldorf at 6.01 a.m. bound for Barcelona with the 34-year-old flight captain at the controls and a 27-yearold co-pilot. While the captain should fly the aircraft to Barcelona, it had been agreed that the co-pilot should fly back to Düsseldorf. Several altitude selections towards Chair for Didactics of Law and Media Law, University of Potsdam. Heinrich Mensen, Handbuch der Luftfahrt (2nd ed. 2013), 959–973; id., Moderne Flugsicherung (3rd ed. 2004), 372–389. 1

2

Ground Proximity Warning System.

3

Airborne Collision Avoidance System/Traffic Alert and Collision Avoidance System.

Chronology and findings are based on: Bureau d’ Enquêtes et d’ Analyses pour la sécurité de l’ aviation civile (BEA), Final Report of 13 March 2016: Accident on 24 March 2015 at Prads-Haute-Bléone (Alpes-de-Haute-Provence, France) to the Airbus A 320-211 registered D-AIPX operated by Germanwings, 2016, available at: https://www.bea.aero/uploads/tx_elydbrapports/BEA2015-0125.en-LR.pdf (accessed on 5 December 2016). 4

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100 feet were recorded during the descent phase of that flight, while the co-pilot was alone in the cockpit, obviously preparing the following accident flight. The aircraft landed in Barcelona at 7.57 a.m. without any problem. After a break of one hour the Airbus took off from Barcelona bound for Düsseldorf with the same six crew members (two flight crew and four cabin crew) and 144 passengers at 9.00 a.m. from Runway 07R with flight number 4U9525. The co-pilot was Pilot Flying. The autopilot was engaged during climb period. The captain left the cockpit at 9.30 a.m. While the co-pilot was alone in the cockpit, the aircraft started a continuous and controlled descent on the basis of the autopilot system. Marseille control centre and French military defence tried to contact the flight crew without receiving any answer. At 9.34 a.m. the captain requested access to the cockpit, but the co-pilot did not open the door. An opening of the door is only possible from inside the cockpit. Meanwhile the selected speed of the aircraft increased to maximum operating speed possible. Cabin crew and captain sent calls into the cockpit and knocked with increasing intensity on the cockpit door. The flight crew of another aircraft tried to contact the crew without any success. At 9.40 a.m. aural warning “Terrain, Terrain, Pull up, Pull up” started and remained active until the end of the flight. At 9.41 a.m. the Airbus crashed on the ground at Prads-Haute-Bléone in the French Alpes. All 150 persons on board died. The extensive investigations of the Bureau d’ Enquêtes et d’ Analyses pour la sécurité de l’ aviation civile (BEA) disclosed that the co-pilot suffered from a mental disorder with psychotic symptoms. This disease led to the committed suicide. After a remarkable suspension of his training at the Lufthansa Flight Training Pilot School already in 2008/2009 for medical reasons he passed all exams which are necessary for working as a co-pilot. From July 2009 he obtained each year a class 1 medical certificate valid for one year, however, it was endorsed with the note “Note the special conditions/ restrictions of the waiver FRA 091/09 – REV –”. His separate Multi-Crew Pilot License included the limitation “SIC incl. PPL” which means “Specific regular medical examinations – contact the license issuing authority.” In the months before the accident anti-depressant and sleeping aid medication was prescribed to the co-pilot. He was in contact with a number of psychotherapists and psychiatrists, but neither these persons nor the co-pilot himself nor the health care providers contacted the aviation authority (Luftfahrt-Bundesamt, Braunschweig) or any

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other authority. Therefore the co-pilot went on flying as commercial pilot carrying passengers. None of the pilots or instructors who flew with him in the months preceding the accident indicated any concern about his attitude or behaviour during flights.

II. Legal Debates A. Political Discussion

The release by the French prosecution authority of the circumstances which led to the catastrophe opened a political discussion about provisions which could avoid such accidents in the future.5 Four basic claims were brought forward: First, the establishment of the two-person cockpit rule, which obligates two persons to be present in the cockpit during the whole duration of the flight. Second, the loosening of the doctorpatient confidentiality obligation and the duty to supply information to the aviation authorities. Third, the improvement of the psychological examination which takes place during the annual suitability check for pilots. Fourth, frequent drug and alcohol tests. The aviation authorities did not react to these political proposals. The Deutsche Lufthansa AG as the holding company of Germanwings GmbH stated that the copilot had a correct certificate of fitness which declared him to be able to fly passenger aircrafts.

B. Legal Discussion

It is remarkable that the legal discussion of this accident has exclusively concentrated on German law aspects. Essentially four parts have been discussed on the basis

5 Robert Goyer, Germanwings Plane Crash: We could be doing much more to prevent pilot suicide, Time, 26 March 2015, available at: http://time.com/3760381/germanwings-cockpit-security-pilotsuicide/ (accessed on 2 December 2016); Melissa Eddy/Dan Bilefsky/Nicola Clark, Co-Pilot in Germanwings crash hid mental illness from employer, authorities say, New York Times, 27 March 2015, available at: http://www.nytimes.com/2015/03/28/world/europe/germanwings-crash-andreas-lubitz.html?_r=0 (accessed on 2 December 2016); Nicholas Kulish/Nicola Clark, Germanwings Crash Exposes History of Denial on Risk of Pilot Suicide, New York Times, 18 April 2015, available at: http://www.nytimes.com/ 2015/04/19/world/europe/germanwings-plane-crash-andreas-lubitz-lufthansa-pilot-suicide.html (accessed on 2 December 2016).

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of the German legal order: compensation law,6 insurance law,7 penal law,8 and the doctor-patient confidentiality obligation.9 Unquestionably, the disaster was caused by a German aviation company and a German pilot. Yet, the circumstances of this flight are not limited to a certain State. The cross-border character of international aviation leads to the indisputable thesis that exclusion of aircraft pilots with suicidal intentions is a matter of international relevance. Hence, the absence of literature with a special focus on European or international air law represents an astonishing result.

C. The Previous Mozambique Airline Accident of 2013

However, for experts in international aviation the Germanwings disaster could not be a real surprise. About one and a half year earlier, a similar tragedy occurred in Africa. This Mozambique Airline accident of 29 November 201310 was precisely known to all national, European, and international aviation authorities, but led remarkably to no reaction in international and European air law: On 29 November 2013 an ERJ-190 passenger aircraft, operating flight TM470 from Maputo, Mozambique, to Luanda, Angola, crashed in the Bwabwata National Park in Namibia. The aircraft was destroyed and all 27 passengers and six crew Marc-Philippe Weller/Bettina Rentsch/Chris Thomale, Schmerzensgeld nach Flugzeugunglücken, Neue Juristische Wochenschrift 2015, 1909; Thomas Kadner-Graziano, Angehörigen- oder Trauerschmerzensgeld: Die Würfel fallen, Recht der internationalen Wirtschaft 2015, 549; Gerhard Wagner/ Marcus Bsaisou, Schadensersatz für die Opfer von Flugzeugabstürzen, Jura 2016, 579; Hans-Peter Schwintowski, Angehörigenschmerzensgeld: Zeit zum Umdenken!, Verbraucher und Recht 2016, 18. 6

Alexander Wittwer, Der EuGH und das internationale Haftpflichtversicherungsrecht, European Law Reporter 2016, 67. 7

Wolfgang Mitsch, Der Germanwings-Absturz: Eine strafrechtliche Nachlese, Juristische Schulung 2015, 884; id./Alix Giraud, Der Germanwings-Absturz in den französischen Alpen: Mord oder Totschlag?, Juristische Rundschau 2016, 174; Christian Fahl, Zur Strafbarkeit eines in Selbstmordabsicht herbeigeführten Flugzeugsabsturzes: „Germanwings-Fall“, Juristische Arbeitsblätter 2016, 401. 8

Ronen Avraham/Joachim Meyer, The Optimal Scope of Physicians’ Duty to Protect Patients’ Privacy, Minnesota Law Review 100 (2016), 30; Gunnar Duttge, Ärztliche Schweigepflicht als Sicherheitsrisiko?, medstra 2016, 129; Beryll Krenkel, Flug 4U 9525: Anlass für eine Reform der ärztlichen Schweigepflicht?, Zeitschrift für das Juristische Studium 2015, 271; Felix Herzog, Hände weg von der ärztlichen Schweigepflicht!, Zeitschrift für Rechtspolitik 2015, 121. 9

10 Directorate of Aircraft Accident Investigations Namibia, Final Report of 30 March 2016 (ACCID/112913/1-12), available at: http://www.iacm.gov.mz/doc/AIG/RelatorioTM470.pdf (accessed on 5 December 2016).

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members were killed. Minutes before the crash the co-pilot left the cockpit for the lavatory. The captain then manually changed the altitude pre-selector from 38,000 feet to 592 feet. The airspeed was manually selected several times until the end of the recording and remained close to the maximum operating speed limit. On the cockpit voice recorder sounds were heard of someone pounding on the cockpit door. It was discovered that the captain went through numerous significant life experiences ranging from an uncompleted divorce process over the suspected suicide of his son on 21 November 2012 to a recent heart surgery of his youngest daughter. The Investigation Commission recommended to the Mozambique Civil Aviation Authorities that measures should be put in place to ensure that the principle of two people in the flight deck is adhered to at all times.11 It has also been recommended to the International Civil Aviation Organization (ICAO) that a working group should be established to look into the operation and threat management emanating from both sides of the cockpit door and that recommendations should be made to avert the locking-out of the cockpit of authorised crew members. It was further demanded that visual recording devices should be installed inside and outside the cockpit that provide information on who was in the cabin and who was controlling the aircraft at the time of an accident. It was also postulated that research with regard to the implementation of aircraft tracking and localisation should be sped up.

III. Consequences in EU Law A. European Air Law

European air law reacted only three days after the Germanwings disaster. In affairs of security matters, European air law distinguishes between issues of technical-operational safety (air safety) and those of police force security (air security).12 Relevant incidents concerning aircraft operation can usually be assigned to one or the other field and its particular legal provisions. The special characteristic of the Germanwings catastrophe is the connection between technical problems (cockpit door could not be 11

See ibid., 37.

12

Marcus Schladebach, Luftrecht (2007), 68 et seq.

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opened from outside the cockpit) and issues of police security (co-pilot with suicidal tendencies). Since European air law offered no connection from the police security point of view, the EU had no choice but to only act on technical-operational safety law. In the EU, the European Aviation Safety Agency (EASA)13 is competent for these questions. The EASA was established by EU Regulation 216/200814 and also monitors the application of the operative regulations and directives. In accordance with Article 18 of Regulation 216/2008 the EASA is entitled to issue recommendations. Regardless of their non-binding nature, the national aviation authorities and the aviation companies in practice comply with these recommendations.

B. EASA Recommendation

On 27 March 2015 the EASA issued a recommendation to the national aviation authorities and the aviation companies in the EU.15 As legal basis the EASA referred to the operational EU Regulation 965/2012.16 Annex IV to this regulation on Commercial Air Transport Operations stresses in para. CAT.GEN.MPA 135 that (1) The operator shall ensure that no person, other than a flight crew member assigned to a flight, is admitted to, or carried in, the flight crew compartment […]. (2) The commander shall ensure that: (1) admission to the flight crew compartment does not cause distraction or interference with the operation of the flight; […] (3) [and] shall make the final decision regarding the admission to the flight crew compartment.

For the application of this technical provision, the EASA released the following recommendation: 13 Norbert Lohl/Michael Gerhard, The European Aviation Safety Agency (EASA), in: Stephan Hobe/Nicolai von Ruckteschell/David Heffernan (eds.), Cologne Compendium on Air Law in Europe (2013), 166, paras. 644 et seq. 14 Regulation (EC) 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, OJ 2008, L 79, 1.

European Air Safety Agency (EASA), Safety Information Bulletin No. 2015-04, 27 March 2015, available via: http://ad.easa.europa.eu/ad/2015-04 (accessed on 5 December 2016). 15

16 Commission Regulation (EU) 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) 216/2008 of the European Parliament and of the Council, OJ 2012, L 296, 1.

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The Agency recommends operators to re-assess the safety and security risks associated with flight crew members leaving the flight crew compartment due to operational or physiological needs during non-critical phases of flight. Based on this assessment, operators are recommended to implement procedures requiring at least two persons authorised in accordance with CAT.GEN.MPA.135 to be in the flight crew compartment at all times, or other equivalent mitigating measures to address risks identified by the operator’s revised assessment. Any additional risks stemming from the introduction of such procedures or measures should be assessed and mitigated. National Aviation Authorities should ensure that operators under their oversight are aware of the content of this SIB [Safety Information Bulletin].17

However, this recommendation was increasingly seen critically by aviation companies and several aviation authorities. They have been requiring the presence of two authorised persons in the flight crew compartment at all times. After a consultation period the EASA has also seen no indication for a substantial security advantage of the two-person-rule. The EASA referred again to EU Regulation 965/2012, in whose Annex IV para. CAT.OP.MPA.210 stipulates that flight crew members “required to be on duty in the flight crew compartment shall remain at the assigned station, unless absence is necessary for the performance of duties in connection with the operations or for physiological needs, provided at least one suitably qualified pilot remains at the controls of the aircraft at all times.” Due to these reasons the EASA withdrew the Recommendation of 27 March 2015 and replaced it with a new Recommendation of 21 July 2016:18 [T]he Agency recommends operators to assess the safety and security risks associated with a flight crew member remaining alone in the flight crew compartment. This assessment should take the following elements into account: 1) the operator’s psychological and security screening policy of flight crews; 2) employment stability and turnover rate of flight crews; 3) access to a support programme, providing psychological support and relief to flight crew when needed; and 4) ability of the operator’s management system to mitigate psychological and social risks. If the assessment leads the operator to require two authorised persons in accordance with CAT.GEN.MPA.135 to be in the flight crew compartment at all times, operators should ensure that: a) the role of the authorised person, other than the operating pilot, in the flight crew compartment is clearly defined, considering that his/her main task should be to open the secure door when the flight crew member who left the compartment returns; b) only suitably qualified flight crew members are allowed to sit at the controls; c) safety and 17

EASA (note 15).

Id., Safety Information Bulletin No. 2016-09, 21 July 2016, available via: http://ad.easa.europa. eu/ad/2016-09 (accessed on 5 December 2016). 18

610 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016 security procedures are established for his/her presence in the flight crew compartment (e.g. operation of the flight deck, specific procedure for entry, use of observer seat and oxygen masks, avoidance of distractions etc.); d) training needs are addressed and identified as appropriate; e) safety risks stemming from the authorised person leaving the passenger cabin are assessed and mitigated, if necessary; and f) resulting procedures are detailed in the Operations Manual and, when relevant, the related security reference documents. National Authorities should ensure that the content of this SIB is taken into account by operators under their oversight.

The withdrawal of the two-person-rule has to be reviewed. In fact, the two-personrule cannot exclude every dramatic accident in an aircraft’s cockpit. Still, it is possible that a physically stronger person is able to defeat another weaker person. Nevertheless, the permanent presence of a second well-selected person minimises the risk of a deliberately induced plane crash. After the present recommendation of July 2016 the only substantial result in European air law is a simple inspection order for the aviation companies to assess certain risk factors. Not providing for any binding procedures appears insufficient and dangerous.

C. European Initiative in the ICAO

In preparation of the 39th Session of the ICAO Assembly, an initiative was launched by the EU, the EU Member States, the European Civil Aviation Conference (ECAC), and Eurocontrol to the Technical Commission of the ICAO.19 The ICAO has been requested (1) to establish a Task Force on Aviation Medicine to analyse, in the light of information derived from recent aviation accidents where a mental health condition has been identified as a causal factor to the accident, the risks associated with flight crew mental fitness, and the aeronautical medicine current evaluation system (including self-declaration and medical verification) taking into account the social and psychological context of pilots undergoing aeromedical evaluation and the need to avoid any negative side effects; and (2) to adopt, where relevant adequate risk mitigation measures, including the development of new requirements, or the revision of the existing ones.

The arrangements in answer to the Germanwings disaster have been presented by the EU institutions to the Technical Commission of the ICAO in a report of 15 Sep19

2016.

International Civil Aviation Organization (ICAO), Working Paper A39-WP/106, 12 August

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tember 2016.20 The EU institutions have pointed out that Germanwings Flight 9525 reminded the international aviation community that the medical and mental conditions of flight crews, if not detected, can lead to a catastrophic outcome. The report explains in particular the described EASA Recommendations and other action plans and task-force initiatives. Precise legal actions are not incorporated. As mentioned above, all these measures in EU aviation law are only declarations of intention and are legally not binding. Furthermore, the ICAO is not obliged to realise the proposal of the EU institutions.

IV. Consequences in International Law A. ICAO Statement

After the Germanwings disaster the ICAO released a statement in which the organisation expressed its regret for the accident.21 At the same time, the ICAO republished those regulations of international air law which are meant to avoid such disasters. These norms of Annexes 6, 8, and 17 to the Convention on International Civil Aviation (Chicago Convention)22 concern the cockpit door and the obligation to prevent unauthorised persons from entering the cockpit. Changes to these Annexes were neither passed nor announced, which obviously suggests that the ICAO holds them to be sufficient. In general, the statement represents a remarkably short reaction to the accident.

B. The 39th Session of the ICAO Assembly

The 39th Session of the ICAO Assembly took place from 27 September to 7 October 2016 in Montreal. The Assembly meets at least once every three years and

20

Id., Working Paper A39-WP/196, 15 September 2016.

Id., Statement on Germanwings Flight 9525, available at: http://www.icao.int/Newsroom/Pages/ GERMANWINGS-FLIGHT-9525.aspx (accessed on 2 December 2016). 21

22

Convention on International Civil Aviation, 7 December 1944, UNTS 15, 295.

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reviews technical, economic, and legal cooperation between the Member States.23 Consultation results are then provided to the other bodies of the ICAO and to its 191 Member States in order to guide their work as prescribed in Article 49 Chicago Convention. The initiative of the European institutions24 has been discussed in the Technical Commission of ICAO. An outcome has not yet been published.

V. Conclusion: A Technical Recommendation Neither European nor international law has reacted appropriately to the disaster. Many task forces and action plans testify to helplessness. One and a half year after the disaster there is no practicable proposal which would be likely to be taken up in a legal rule. Not only thousands of flight passengers, who daily use aircrafts worldwide, but also the air law scene might confirm the thesis that European and international air law can give no effective answer to this new aspect of air security. Nevertheless, this study cannot end with such a non-result and a tip to the inability and missing creativity of the aviation authorities on European and international level. Aviation authorities overlook the fact that aircrafts own a very modern board technology. The extensive possibilities of flight navigation of a passenger aircraft represent the technical background of the following recommendation by the author: Every passenger aircraft should be equipped with a new emergency safety system. This system should be programmed in such a way that in case of an inexplicable significant descent of the aircraft an automatic emergency system is activated and brings the aircraft on a safe flight altitude again. The procedure guarantees valuable additional time to clear up the situation in the cockpit, to avoid an aircraft crash, and thus – above all – to protect the life of all people on board. The air-traffic controller on the ground, responsible for the concrete flight segment, also gets additional time for instructions to the pilots as far as they are accessible. Against this proposal one cannot argue that the offered pre-programmed automatic emergency system is violable by external manipulations by radio or internet frequencies. The system should be pre-programmed as an immune system which is closed for external interventions. As mentioned above, Ludwig Weber, International Civil Aviation Organization (ICAO), in: Hobe/von Ruckteschell/ Heffernan (eds.) (note 13), 25, paras. 8 et seq. 23

24

See supra, III.

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it only activates itself in the described case. Of course the aircraft cannot be held in the air forever. If it runs out of fuel, the activated emergency system leads the aircraft automatically to the nearest airport and lands it there also automatically. The aviation branch knows that the technical possibilities allow the programming of such an emergency safety system. Its realisation protects the life of all passengers and crew members and excludes air accidents like the Germanwings disaster for the future.

The German Federal Court of Justice Marks a Possible Way for the CJEU’s Preliminary Ruling: The Compatibility of Investment Arbitration Clauses in Intra-EU Bilateral Investment Treaties with European Union Law THOMAS HOPPE

I. Introduction A recent topic of discussion within the investment arbitration community is the compatibility of investment arbitration clauses in intra-European Union (EU) Bilateral Investment Treaties (BITs) with EU law, but also in general the compatibility of intra-EU BITs with EU law.1 Until today the Court of Justice of the European Union (CJEU) has not decided whether an arbitration clause contained in an intraEU BIT is in accordance with EU law. Especially, it has not decided whether such an arbitration clause complies with Articles 344, 267, and 18 Treaty on the Functioning of the European Union (TFEU)2.3 The issue arises out of the fact that after the fall of Thomas Hoppe, LL.M. (Virginia), Assessor Candidate and Doctoral Candidate at the Walther Schücking Institute for International Law, University of Kiel. Cf. e.g. Marc Bungenberg/Stephan Hobe, The Relationship of International Investment Law and European Union Law, in: Marc Bungenberg et al. (eds.), International Investment Law: A Handbook (2016), 1602, 1607; Friedl Weiss/Silke Steiner, The investment regime under Article 207 of the TFEU – a legal conundrum: the scope of ‘foreign direct investment’ and the future of intra-EU BITs, in: Freya Baetens (ed.), Investment Law within International Law: Integrationist Perspectives (2013), 355, 367; Angelos Dimopoulos, The Validity and Applicability of International Investment Agreements between EU Member States under EU and International Law, Common Market Law Review 48 (2011), 63. 1

2 Treaty on the Functioning of the European Union, 13 December 2007, OJ 2012 C 326, 47 (consolidated version).

Cf. Federal Court of Justice (FCJ) (Bundesgerichtshof), I ZB 2/15 of 3 March 2016, para. 22, available at: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art= en&sid=ef779267aaf5b1c4e73675b1636d4c6a&nr=74612&pos=12&anz=25 (accessed on 21 November 2016). 3

616 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

the Berlin wall many Member States of the European Union concluded BITs with former Warsaw Pact States in the early 1990s.4 With the accession of those States to the European Union the non-EU BITs became automatically intra-EU BITs. The European Commission, participating as amicus curiae in several investment arbitration proceedings,5 has a clear stance on this issue and is of the opinion that intra-EU BITs should be terminated consensually by the Member States or are in any event not compatible or might collide with European Union law.6 Arbitral tribunals should thus not be allowed to decide disputes between an investor and Member States of the EU based on intra-EU investment arbitration clauses.7 In March 2016 the aforementioned issues were brought to the First Senate of the Federal Court of Justice (Bundesgerichtshof) (FCJ) in Karlsruhe. The FCJ had to decide upon the compatibility of the arbitration clause contained in Article 8 (2) Dutch-Slovakian BIT8 with Articles 344, 267, and 18 TFEU. It provided a thorough analysis of the problems and indicated its position towards the acceptance of the compatibility of the provisions with EU law. Because of the fact that the CJEU has not yet decided whether an arbitration clause contained in an intra-EU BIT is in accordance with EU law and a clear position cannot be derived from its jurisprudence, the FCJ brought the raised questions for a preliminary ruling pursuant to Article 267 TFEU before the CJEU (III.9). Cf. e.g. Estonia-Netherlands BIT (1992), available via: http://investmentpolicyhub.unctad.org/ IIA/country/148/treaty/1464; Germany-Poland BIT (1989), available via: http://investmentpolicy hub.unctad.org/IIA/country/168/treaty/1740; France-Poland BIT (1989), available via: http://invest mentpolicyhub.unctad.org/IIA/country/168/treaty/1602; Czech Republic-Germany BIT (1990), available via: http://investmentpolicyhub.unctad.org/IIA/country/55/treaty/1186; France-Lithuania BIT (1992), available via: http://investmentpolicyhub.unctad.org/IIA/country/121/treaty/1578; Slovakia-Spain BIT (1990), available via: http://investmentpolicyhub.unctad.org/IIA/country/191/ treaty/2916 (all accessed on 17 January 2017). 4

Cf. e.g. AES v. Hungary, ICSID Case No. ARB/07/22, Award of 23 September 2010; Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, Award of 25 November 2015. 5

6 Bungenberg/Hobe (note 1), 1606; Frank Hoffmeister/Güneş Ünüvar, From BITS and Pieces Towards European Investment Agreements, in: Marc Bungenberg/August Reinisch/Christian Tietje (eds.), EU and Investment Agreements: Open Questions and Remaining Challenges (2013), 57, 58.

Cf. U.S. Steel v. The Slovak Republic, UNCITRAL, PCA Case No. 2013-6, Amicus Curiae Brief of 15 May 2014, para. 40. 7

8 Netherlands-Slovakia BIT (1991), available via: http://investmentpolicyhub.unctad.org/IIA/ mostRecent/treaty/2650 (accessed on 17 January 2017). 9

FCJ (note 3).

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II. Facts of the Case In 1991 the Czech and Slovak Federal Republic and the Netherlands concluded a BIT to promote investments in both countries and protect investors from any infringements of the BIT by the respective host State. In 1993 the Czech and Slovak Federal Republic was dissolved and Slovakia as its legal successor stepped into the shoes of the BIT with the Netherlands.10 With the accession of Slovakia to the European Union in May 2004 the Dutch-Slovakian BIT turned into an intra-EU BIT. In 2004 Slovakia liberalised its market for national and foreign insurers allowing them to offer private medical insurance. The Dutch insurer Eureko, being the legal predecessor of Achmea, invested in the medical insurance market in Slovakia. After a governmental change the liberalisation of the market was partially revoked. In 2008, Achmea initiated as an investor investment arbitration proceedings against Slovakia claiming infringements of the Dutch-Slovakian BIT by Slovakia as the host State.11 The parties agreed upon Frankfurt am Main, Germany as the seat of the arbitral proceedings. During the investment arbitration proceedings Slovakia challenged the jurisdiction of the arbitral tribunal by arguing that the offer to arbitrate in Article 8 (2) Dutch-Slovakian BIT was not applicable after Slovakia’s accession to the EU, as the provision is not compatible with EU law.12 After the arbitral tribunal rendered an award13 in December 2012, ordering Slovakia to pay € 22.1 million damages plus interest to Achmea, Slovakia appealed against the arbitral award to the Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt), which rejected the request to set aside the arbitral award.14 It held that Slovakia, despite its accession to the European The Netherlands-Slovakia BIT (1991) and the Czech Republic-Netherlands BIT (1991), available via: http://investmentpolicyhub.unctad.org/Download/TreatyFile/968 (accessed on 17 January 2017), are identical in wording. 10

Cf. Achmea B.V. v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13 (formerly Eureko B.V. v. The Slovak Republic), Award on Jurisdiction, Arbitrability, and Suspension of 26 October 2010, para. 10, available at: http://www.italaw.com/sites/default/files/case-documents/ita0309.pdf (accessed on 17 January 2017). 11

12

Cf. ibid., para. 9.

Achmea B.V. v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13 (formerly Eureko B.V. v. The Slovak Republic), Award of 7 December 2012, available at: http://www.italaw.com/sites/default/ files/case-documents/italaw3206.pdf (accessed on 26 November 2016). 13

14 Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt am Main), 26 SchH 3/13 of 18 December 2014, available at: http://www.italaw.com/sites/default/files/case-documents/italaw 7079.pdf (accessed on 26 November 2016).

618 GERMAN YEARBOOK OF INTERNATIONAL LAW 59 2016

Union, was still bound by its standing offer to arbitrate alleged breaches of the Dutch-Slovakian BIT.15 Accordingly, Slovakia submitted its appeal against the decision of the Higher Regional Court of Frankfurt to the Federal Court of Justice.16

III. Questions Referred to the CJEU for a Preliminary Ruling The Federal Court of Justice stated its legal opinion about the compatibility of investment arbitration clauses in intra-EU BITs with EU law in its request for a preliminary ruling by the CJEU. Thereby, the FCJ gave a legal analysis of how it would resolve the issue. It asked the CJEU to decide about the compatibility of such an intra-EU investment arbitration clause with the provisions of Article 344 TFEU (A.), Article 267 TFEU (B.), and Article 18 TFEU (C.).

A. Compatibility of the Investment Arbitration Clause with Article 344 TFEU

The first question the Federal Court of Justice elaborated on was whether the arbitration clause in Article 8 (2) Dutch-Slovakian BIT infringed Article 344 TFEU. Article 344 TFEU obliges Member States not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement except for those provided for in the European Treaties. The purpose of the provision is, inter alia, to safeguard the competence of the CJEU to be the chief interpreter of the Treaties and their application.17 This purpose could be undermined in cases where a Member State of the European Union submits itself to the jurisdiction of an arbitral tribunal in cases of disputes with a private person where the infringement of EU law might be at stake.18 15

Ibid., paras. 46 et seq.

16

FCJ (note 3).

Cf. Daniel-Erasmus Khan, Article 344, in: Rudolf Geiger/Daniel-Erasmus Khan/Markus Kotzur (eds.), EUV/AEUV Kommentar (6th ed. 2017), 1075; Matthias Ruffert/Bernhard Wegener, Article 344, in: Christian Calliess/Matthias Ruffert (eds.), EUV/AEUV, Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta: Kommentar (5th ed. 2016), 2689; Marco Athen/ Oliver Dörr, Article 344, in: Eberhard Grabitz/Meinhard Hilf/Martin Nettesheim (eds.), Das Recht der Europäischen Union, Kommentar, Vol. III (loose leaf supplement 2013), MN 3. 17

18

FCJ (note 3), para. 23.

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The core question asked was whether Article 344 TFEU is only applicable to disputes among Member States concerning the application and interpretation of the Treaties or whether it also applies to disputes between a private investor and a Member State. The Federal Court of Justice was of the opinion that disputes between a private juridical person and a Member State are not within the scope of Article 344 TFEU.19 It followed the reasoning of the Higher Regional Court in Frankfurt am Main by stating that Article 8 (2) Dutch-Slovakian BIT does not constitute a method of settlement pursuant to Article 344 TFEU.20 Consequently, Article 8 (2) Dutch-Slovakian BIT providing for a dispute settlement mechanism between a private investor and a Member State would not bypass the jurisdiction of the CJEU in matters concerning the interpretation and application of the Treaties. Further, the Federal Court of Justice stated that it would rather be a breach of Article 344 TFEU when the subject matter of the decision of the arbitral tribunal is the interpretation and application of EU law itself.21 Therefore, it would not constitute an infringement of Article 344 TFEU if the arbitral tribunal used EU law just as a tool to interpret a provision of the BIT which in itself is not a part of the European Union law.22 However, as the wording of Article 344 TFEU is ambiguous in so far as it does not clearly state whether the provision is applicable in cases of disputes between a juridical or private person and a Member State, the FCJ submitted this question to the CJEU.

B. Compatibility of the Investment Arbitration Clause with Article 267 TFEU

Further, the Federal Court of Justice had to decide upon the compatibility of the arbitration clause contained in Article 8 (2) Dutch-Slovakian BIT with Article 267 19

Ibid., para. 26.

20

Ibid.; cf. Higher Regional Court of Frankfurt (note 14), paras. 50 et seq.

FCJ (note 3), para. 32; cf. European Court of Justice (ECJ), Commission v. Ireland, Case C-459/ 03, Judgment of 30 May 2006, paras. 140, 149, 151 et seq. 21

22

FCJ (note 3), para. 32.

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TFEU. The provision, being the key provision to safeguard a uniform application of EU law in the Member States, obliges the national courts of the Member States to request the CJEU for a preliminary ruling with regard to questions of interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices, and agencies of the EU. The Federal Court of Justice was of the opinion that the arbitration clause in Article 8 (2) Dutch-Slovakian BIT is in conformity with Article 267 TFEU.23 It argued that the fact that an arbitral tribunal is not a court in the sense of Article 267 TFEU and thus not competent to request the CJEU for a preliminary ruling does not imply a breach of Article 267 TFEU. Even though the arbitral tribunal has the obligation to consider and rely on EU law as a default procedure pursuant to Article 8 (6) Dutch-Slovakian BIT and does not have the possibility to ask the CJEU for a preliminary ruling according to Article 267 TFEU, it has other options to safeguard its compliance with Article 267 TFEU in cases of doubt. The FCJ indicated some options for an investment arbitration tribunal to rely upon for the compliance with Article 267 TFEU. It considered that pursuant to Section 1050 German Code of Civil Procedure24 an arbitral tribunal is allowed to seek a national court of the seat of arbitration to ask for a preliminary ruling.25 However, this can be problematic in cases where the national code of civil procedure does not allow for that option or the applicable rules of procedure, such as e.g. the United Nations Commission on International Trade Law (UNCITRAL) Rules, do not include a provision to ask a national court for a preliminary ruling. Further, a uniform interpretation of EU law can be safeguarded during the enforcement procedure of an investment arbitration award in which a national court has to consider the compatibility of the award with national law. Pursuant to Section 1059 (2) German Code of Civil Procedure a national court has to scrutinise an arbitral award for its compatibility with EU law and can thus, in cases of ambiguity, seek the CJEU for a preliminary ruling. Thereby it safeguards the uniform interpretation of EU law. 23

Ibid., para. 45.

German Code of Civil Procedure (Zivilprozessordnung), 5 December 2005, Bundesgesetzblatt (BGBl.) I, 3202, as amended on 10 October 2013, BGBl. I, 3786. 24

25

FCJ (note 3), para. 51.

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A national court during the enforcement procedure of an arbitral award has to review the award for its compatibility with the ordre public, which does also rely on rules of EU law. Generally, not every breach of EU law constitutes an infringement of the ordre public.26 EU law will only form part of the ordre public in cases where a fundamental rule, indispensable for the realisation of the EU’s tasks and especially for the functioning of the European Single Market is at stake.27 Thus, it may occur that the arbitral tribunal does not comply with EU law which is not considered to be part of the ordre public. In that case the last word of the CJEU would not be retained. According to the Federal Court of Justice this would still not lead to a breach of Article 267 TFEU by the arbitration clause in Article 8 (2) DutchSlovakian BIT.28

C. Compatibility of the Investment Arbitration Clause with Article 18 TFEU

The last submission by Slovakia was the question of the compatibility of the arbitration clause in Article 8 (2) Dutch-Slovakian BIT with Article 18 TFEU. Article 18 TFEU provides that any discrimination on grounds of nationality, within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, shall be prohibited. The Federal Court of Justice saw a discrimination of the investors of Member States of the European Union other than the Netherlands and Slovakia.29 It argued that it is an advantage for the Dutch and Slovakian investors to have a dispute in English, as a commonly used language, in front of an arbitral tribunal and not in a foreign language in front of a national court of the other party.30 Further, it stated that having an arbitral tribunal constituted just for the special case and with arbitrators being often highly qualified in this special field of law, is of advantage over the 26

Ibid., para. 56.

ECJ, Eco Swiss v. Benetton International NV., Case C-126/97, Judgment of 1 June 1999, para. 36; id., Mostaza Claro v. Centro Movil Milenium SL., Case C-168/05, Judgment of 26 October 2006, para. 37; cf. FCJ (note 3), para. 56. 27

28

FCJ (note 3), paras. 56 et seq.

29

Ibid., paras. 74 et seq.

30

Ibid., para. 72.

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seizure of a national court. Furthermore, the fact that the claimant has the choice between a variety of dispute settlement procedures constitutes an additional benefit not granted to the investors of the other Member States of the European Union as they can only seek the national courts of the other disputing party.31 The Federal Court of Justice is of the opinion that according to the jurisprudence of the CJEU a solution for the discrimination would be to grant the discriminated investors the same advantages the privileged investors have, which would mean that the discriminated investors would be granted access to arbitration in the same way as Dutch and Slovakian investors.32 In consequence, investors of other Member States of the European Union could rely on Article 8 (2) Dutch-Slovakian BIT and be granted the same protection as Dutch investors in Slovakia and Slovakian investors in the Netherlands. The scope of the BIT between the Netherlands and Slovakia would thus be extended to a multilateral investment treaty with investors of the other EU Member States as beneficiaries.

IV. Conclusion and Implications for the Future The findings by the FCJ in its decision of 3 March 2016 mark a possible way for the CJEU’s preliminary ruling. It remains to be seen whether the CJEU will follow all of the findings made by the FCJ concerning Articles 344, 267, and 18 TFEU. If so, in the case at hand, the award in favour of Achmea could be set aside pursuant to Section 1059 (2)(1)(a) German Code of Civil Procedure if it constitutes a breach of Article 18 TFEU. The question would be whether the CJEU would draw the same consequence as the FCJ indicated. That is to say, whether the access to investment treaty arbitration pursuant to Article 8 (2) Dutch-Slovakian BIT would be broadened up for all investors of the Member States of the EU. But this decision would also have important implications for the arbitration clauses within other intra-EU BITs. Investment arbitration tribunals might face a high risk of their awards being set aside in the future. This could hypothetically lead to investors seeking protection in front 31

Ibid.

Ibid., paras. 77–78; cf. ECJ, Maria Martinez Sala v. Bavaria, Case C-85/96, Judgment of 12 May 1998, para. 63; cf. Hanno Wehland, Schiedsverfahren auf der Grundlage bilateraler Investitionsschutzabkommen zwischen EU-Mitgliedsstaaten und die Einwendung des entgegenstehenden Gemeinschaftsrechts, Zeitschrift für Schiedsverfahren 6 (2008), 222. 32

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of domestic courts of Member States rather than relying on investment arbitration based on arbitration clauses in intra-EU BITs.33 However, it remains questionable whether the CJEU will even follow all of the findings of the FCJ concerning the compatibility with Articles 344 and 267 TFEU. It seems very unlikely, especially with regard to previous decisions of the CJEU relating to the interpretative authority of EU law, that the CJEU will rubber-stamp the other findings. As chief interpreter of the treaties, such parallel decisions by investment arbitration tribunals on the interpretation and application of EU law without a concise possibility of scrutiny by the CJEU might be neither in the Court’s interest nor in accordance with its jurisprudence. Besides the fact that non-compliance with EU law not being part of the ordre public by arbitral tribunals remains without scrutiny and could thus infringe Article 267 TFEU, another aspect might be of concern. In cases of International Centre for Settlement of Investment Disputes (ICSID) arbitration there is no possibility for State courts to review the award on public policy aspects during the enforcement pursuant to Article 54 (1) Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention),34 as an award rendered by an ICSID tribunal shall be recognised as if it were a final judgment of a court in the State where the award shall be enforced.35 Thus, the autonomous ICSID regime for recognition and execution would exclude the applicable provisions of the Code of Civil Procedure and its remedies.36 Hence, in ICSID cases the lack of possible scrutiny37 might also constitute an infringement of Article 267 TFEU. 33 See also Dominik Moskvan, The Clash of Intra-EU Bilateral Investment Treaties With EU Law: A Bitter Pill To Swallow, Columbia Journal of European Law 22 (2015), 101, 135. 34 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, UNTS 575, 159.

Cf., however, the position of the European Commission in Ioan Micula, Viorel Micula, S.C. European Food S.A., S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, ICSID Case No. ARB/ 05/20, Final Award of 11 December 2013, para. 336, where it “contends that if a national court in the EU were asked to enforce an ICSID award that is contrary to EU law and EU state aid policy rules, the proceedings would have to be stayed under the conditions of Article 234 of the EC Treaty so that the ECJ may decide on the applicability of Article 54 of the ICSID Convention, as transposed into the national law of the referring judge”; Catharine Titi, Recent Developments in International Investment Law, in: Marc Bungenberg et al. (eds.), European Yearbook of International Economic Law (2016), 703, 716. 35

36

Christoph Schreuer, The ICSID Convention: A Commentary (2nd ed. 2009), 1131–1132.

37

Cf. Dimopoulos (note 1), 88.

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Another aspect of a decision by the CJEU might be that the current debate and the possible negative outcome for the investment arbitration clauses in intra-EU BITs could accelerate the decision of a group of States to implement a plan to create a new and common multilateral investment regime within the Member States of the European Union. Thereby, such a multilateral investment treaty would create investment standards for EU investors within the EU. European investors would not have to rely on domestic courts applying domestic and EU law to pursue their rights as investors granted by the multilateral investment treaty but rather seek an investment arbitration tribunal and thus could bypass domestic courts. A consequence the European Commission initially wanted to avoid as it would lead to a mistrust in the domestic courts of EU Member States, an increase of ‘forum shopping’, and a broader fragmentation of international law.38 Consequently, the preliminary ruling by the CJEU requested by the FCJ will have a substantial impact on the future of intra-EU BITs and is thus highly awaited. The question remains whether the CJEU will follow all or any of the findings made by the FCJ.

38 Achmea B.V. v. The Slovak Republic (note 11), para. 185; Rumiana Yotova, The new EU competence in foreign direct investment and intra-EU investment treaties: does the emperor have new clothes?, in: Baetens (ed.) (note 1), 387, 405–406.

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Michael Bowman/Peter Davies/Edward Goodwin (eds.): Research Handbook on Biodiversity and Law. Cheltenham & Northampton, Massachusetts 2016, 512 pages, ISBN 978 1781004784. The market for handbooks on international law is becoming increasingly crowded. The Oxford Handbooks, published by Oxford University Press, and Research Handbooks, published by Edward Elgar, contribute significantly to the rising supply. Consequently, the titles of these handbooks cover more specific topics, which is certainly not a negative development. One of the most recent examples of this trend is the Research Handbook on Biodiversity and Law, published by Edward Elgar in its series ‘Research Handbooks in Environmental Law’. This series comprises about half a dozen volumes so far, much less than its older sister ‘Research Handbooks in International Law’. From the description of these two series, the main difference between them, besides the different topics covered, appears to be its approach and subsequent choice of chapter titles. This is important to point out to prevent potential readers from having the feeling that the handbook does not live up to their expectations. The editors of research handbooks on international law – and this is admittedly generalised – base the content on particular aspects of the field of international law covered. These handbooks highlight the most important topics, issues and debates in a particular branch of international law. The research handbooks on environmental law focus much more on an appraisal of the current state of thinking and deal with pressing issues in the field. Hence, these books also lay the basis for pointing at possible future research questions. Against this background, it makes full sense that the Research Handbook on Biodiversity and Law appears in the series on environmental law rather than the one on international law. This is only emphasised by editors’ remark that ‘fundamental ethical questions continue to be raised, many of which embrace interests of other than a purely anthropocentric kind’ (xii). Having said that, the volume at hand – as most other volumes in the series, although only one of them has ‘international’ in its title1 – deals largely with international environmental law. Michael Bowman, Peter Davies, and Edward Goodman, the editors of the volume, are well-known in the field and so is the University of Nottingham where they are based. Bowman and Davies wrote together with Catherine Redgwell the second edition of Lyster’s International Wildlife Law2, Bowman and Redgwell edited International Law and the Conservation of Biological Diversity3, and Bowman and Alan Boyle edited Environmental Damage in Inter1

Rosemary Rayfuse (ed.), Research Handbook on International Marine Environmental Law (2015). Michael Bowman/Peter Davies/Catherine Redgwell, Lyster’s International Wildlife Law Second Edition (2010). 3 Michael Bowman/Catherine Redgwell (eds.), International Law and the Conservation of Biological Diversity (1996). 2

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national and Comparative Law4. Alexander Gillespie acknowledges in his review on the back of the cover that the volume ‘comprises the best scholars in the field covering all the essential elements needed to understand and respond to the foremost conservation challenges of the 21st century.’ The authors, however, work almost exclusively in Great Britain, Scandinavia, the Netherlands, Australia and New Zealand. This does not necessarily mean that the volume has an exclusive focus on industrialised states though. Nicole Mohammed’s chapter focuses on participatory management in Jamaican forestry. Duncan French’s analysis of common heritage and common concern cannot get around the division between north and south. Emilie Cloatre describes bioprospecting clearly as part of a larger historical economic problem between north and south. The volume consists of four parts each with three to five chapters. The first part bears the title ‘Visions, values and voices’. Bowman starts off with the longest chapter of the book. All editors’ chapters are among the longest but Bowman’s contribution comprehends so much that it rightly could only fit in this first very broad part of the book. He sets out promising with the listing the principle drivers of biodiversity loss: habitat change, overexploitation, pollution, invasive species and climate change (3). All of these are touched upon in one or more chapters of the volume, either as its main theme or indirectly. After two pages, however, Bowman’s chapter turns into a reply to a book review – written by a political scientist – of the second edition of Lyster’s International Wildlife Law. This continues for almost twenty pages and Bowman wanders off to a redundant discussion of vision (5–8) and community (18–21), and defends fiercely the approach taken to update Lyster’s famous work. It is questionable if the opening chapter of a research handbook profits from the inclusion of attacks on the author of a critical book review concerning an earlier work with a much smaller scope. In between, Bowman touches upon intrinsic value (13, 14), the international community (26), NGO involvement in the regulatory process (32) and analyses the value of Romanticism (9– 12) and the Enlightenment (40, 41) for conservation. After this amalgamation of visions, Mattia Fosci and Tom West are luckily much more to the point in their discussion of instrumental and intrinsic value. Their description of the distinction between the two (55, 56) and their importance for the development of international environmental law (57, 60, 61) are clear. That ecosystem services exemplify instrumental value seems obvious (64). In three steps, instrumental valuation can lead to greater legal protection of nature. First, after an increase in scientific knowledge, this should second be translated into public consciousness and then third, lead to greater legal protection (65). Intrinsic value surfaces through both biocentric and ecocentric approaches but it is more difficult to point to clear legal consequences (68–72). Intrinsic value seems to lead to a need for prioritisation in natural protection, which is difficult to achieve (74). The last two chapters of the first part mainly put forward voices concerning fairly specific topics. Nicole Mohammed touches upon public participation, participatory rights and community management (78–80). Her point that NGOs and local knowledge represent voices otherwise ignored or by-passed by decision makers (80, 81) is picked up in Elizabeth A. Kirk’s chap4

Michael Bowman/Alan Boyle (eds.), Environmental Damage in International and Comparative Law, Problems of Definition and Valuation (2002).

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ter on the role of non-state actors in treaty regimes for the protection of marine biodiversity. Kirk lists the differences among regimes in the allowance for participation of NGOs (101– 108). There appear to be differences between international and national or local NGOs in this regard (108). It is nevertheless easy to redefine participatory rights because they are most often not laid down in the treaty itself (113). Nonetheless, ‘States remain in control of decisionmaking’ (116). The second part of the research handbook deals with significant threats to biodiversity and starts with Rosemary Rayfuses chapter on climate change and marine biodiversity. The first three paragraphs only cover natural science. Rayfuse then discusses climate change-induced high seas fish species migration (134) and what international conventions have on offer for polar bears (136, 137). However, the 1992 United Nations Framework Convention on Climate Change is not about the ocean (138, 139). Neither is ocean acidification acknowledged as a regime focus in the law of the sea or any other treaty regime (144). Edward Goodwin’s focus is also on the ocean, more specifically on the conservation of vulnerable marine ecosystems. First, he makes a difference between vulnerability and resilience (149) and then highlights the five main causes of (marine) biodiversity loss already listed in Bowman’s chapter (150 et seq). Goodwin’s introduction to why the current division in maritime zones adds to the vulnerability of marine ecological systems is very helpful (152–154). Curiously, he states that ‘tourist activities focused upon interest in marine ecosystems, such as coral reefs, represent a form of exploitation of both the living and non-living resources’ and consequently fall under the regime of the exclusive economic zone (156). Goodwin also categorises bottom trawling as pollution (166, 167). Although political will to reduce land-based sources of pollution is generally lacking (167, 168), the Caribbean is arguably the region with the best practice (168, 169). Davies picks up on Goodwin’s discussion of invasive species (172, 173) but then from the perspective of the European Union (193–195). The precautionary approach hardly plays a role in the listing of invasive species (197, 201). Arie Trouwborst’s chapter is innovative in focusing on how international wildlife regimes counter fragmentation. Connectivity conservation and climate change become increasingly linked (219). Both the 1971 Wetlands Convention and the 1972 World Heritage Convention are more likely to facilitate a network of protected areas than connecting corridors (225, 226). The 1979 Migratory Species Convention and 1992 Biodiversity Convention are more advanced on connectivity (226–233) and so are regional conventions in Africa and Europe (234–237). But although the European Court of Justice has highlighted the importance of connectivity (243), the European Union’s Habitat Directive does not necessarily focus on it (241, 242). Karen Hulme sees in her chapter on armed conflict and biological diversity the absence of ‘biodiversity’ from international humanitarian law as unsurprising, although environmental protection does surface (249). Nevertheless, there is not much limitation of wartime environmental damage (251). The precautionary approach, for instance, finds no application in international humanitarian law or use of weapons (254). Hulme’s suggestion that the environment might be a civilian object is interesting (252). In addition, the international treaty obligations to remove certain types of weapons might benefit the environment (256).

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The third part of the volume on general principles of international environmental law contains just three chapters. Koester focuses in his chapter on the concept of sustainable development and the 1992 Biodiversity Convention more on the Convention’s Conference of the Parties (282–292) than on the Convention itself (279–282). If he had posed his questions for further research (295, 296) in the beginning instead of at the end, the chapter might have become more valuable. Malgosia Fitzmaurice analyses the concept of intra- and intergenerational equity in relation to whaling. Her description of the former could also have been a description of sustainable development (301, 302) but she gives a very good introduction to the latter (312–317). Fitzmaurice’s discussion of aboriginal whaling is a little long and detailed (303–311) but the remark that it is not always easy to distinguish between aboriginal and commercial whaling is worth mentioning (304). She comes to the conclusion that the 2014 judgment of the International Court of Justice in the Whaling case is of little value for intergenerational equity (324) and rightly so, but then one might question why it is necessary to elaborate on the case so extensively in the first place. In her discussion on sanctuaries the Pelagos Sanctuary for the protection on marine mammals in the Mediterranean Sea is notably absent. The following paragraph on small and medium-size cetaceans is irrelevant for intergenerational equity (329). French saves this part of the volume from being regarded as not very supportive for a research handbook. His chapter compares the common heritage and common concern principles (342, 343) but focuses on the latter in treaty regimes (347) and relation to other principles (349). French makes a strong and convincing case for the common concern concept to be a legal principle (356). The last part of the research handbook deals with regulatory challenges and responses. Cloatre helpfully starts with a definition of bioprospecting (361). The 1992 Biodiversity Convention plays an important role in its regulation (369). What it means to share benefits fairly might not be clear in every regard but Cloatre lists a few clarifying arguments (375). Intellectual property concepts do not seem to fit bioprospecting very well (378–382). Kees Bastmeijer’s contribution about ecological restoration is a welcome addition to the handbook although the chapter is a bit citation-heavy (especially 404–409). Restoration should be distinguished from prevention (396–402) but there is interaction between the two (410, 411): ‘conservation objectives may only be achieved through strengthening prevention, paralleled by effective restoration’ (412). After Karen N. Scott elaborates on non-compliance procedures in international wildlife treaties, Richard Caddell closes the volume with a worthy analysis of regime interaction and the global conservation of biological diversity. He starts with listing the problems of treaty congestion (437) and then a description of the possibilities for institutional arrangements of multilateral environmental agreements follows (440–443). Unfortunately, “there is a deceptively limited degree of common overlap between the [Biodiversity-Related Conventions]” (448). A positive example forms the Chairs of the Scientific Advisory Boards meeting of the different conventions (453). In addition, there exists co-operation within Joint Work Programmes and National Biodiversity Strategies and Action Plans (457–459) but ‘beyond a general ethos towards the responsible husbandry of natural resources, there is limited commonality between these regimes in terms of conservation priorities, species and thematic range and unifying regulatory objectives’ (450).

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Sometimes the reader might be surprised about the amount of detail in some chapters taking into account that it is research handbook. And there is an inescapable difference in quality and helpfulness among the chapters. But, after having read the whole volume, the reader will realise that the research handbook covers a large share of the current issues and thinking in the legal community concerning biological diversity and therewith, the research handbook lives up to aim of the series it is published in. For scholars who wish to dive into this or searching for new avenues of research, this research handbook might turn out to be very supportive. ERIK VAN DOORN Research Associate Walther Schücking Institute for International Law at the University of Kiel

Eric de Brabandere, Investment Treaty Arbitration as Public International Law – Procedural Aspects and Implications. Cambridge University Press, Cambridge 2014, 264 pages, ISBN 9781107066878. With this monograph Eric de Brabandere in a way wants to bring back investment treaty arbitration to its ‘roots’, which are, that investment treaty arbitration is a branch and thus a part of public international law. What has started, at least in its modern, post-WW II way, by the implementation of the first bilateral investment treaty (BIT) between Germany and Pakistan in 1958, as part of the public international law regime, has been footed, since the inclusion of the right of a private investor to file an investor-State arbitration claim in the 1990’s, on hybrid or public law grounds by different scholars and practitioners. However, it is the main objective of de Brabandere’s work to shift back the position of investment treaty arbitration – as one of the most important dispute settlement mechanisms in international law – from a private or commercial to a public international law dispute settlement method (1). As investment treaty arbitration is concerned with the international legal obligations of States under public international law and founded on an international treaty – be it bilateral or multilateral (e.g. NAFTA) – containing the sovereign consent of a State to arbitration and granting foreign investors substantive protections, it constitutes a public international law dispute settlement mechanism (1–2). Characterisations of investment treaty arbitration as a ‘hybrid’ legal system5 or equations with public or administrative law are thus – pursuant to de Brabandere – not fully reflecting its contemporary nature. 5

Cf. Zachary Douglas, The Hybrid Foundations of Investment Treaty Arbitration, British Yearbook of International Law 74 (2004), 151.

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Eric de Brabandere’s monograph is divided into two major parts. In the first part he elaborates on the public international law character of investment treaty arbitration, the second part covers up the subtitle of its monograph and examines the procedural aspects and implications of the public international law character of investment treaty arbitration. In the first chapter of the ‘first’ part de Brabandere sets the stage for his main thesis by addressing the public international law foundations of investment treaty arbitration. Thereby he mainly focuses on the treaty aspect – as can be derived from the title of the book – of international investment arbitration and excludes the investment contract level from its major findings. I.e. that it is not concealed that investment contracts may play a role through umbrella clauses or tribunals may have jurisdiction upon contract breaches within investment treaty arbitration. Nonetheless they shall inter alia not be embraced by characterising the investment treaty regime, because the vast majority of investment tribunals are provided for in an investment treaty rather than in an investment contract between a State and a foreign investor. Further, he points to similarities between investment treaty arbitration and other public international law dispute settlement mechanisms and distinguishes it from international commercial arbitration. Thereby he stretches the importance of the express consent of the States to investment treaty arbitration as it is also required in general international law (23) and qualifies it as a sovereign act. The investment treaty arbitration resembles more the interstate arbitration than commercial arbitration. This is also underlined as the subject matters concern the sovereign powers of a State and its international obligations, and a breach thereof towards a foreign investor entails the international responsibility of that State. The second chapter emphasises the legal character of the direct access of investors to investment treaty arbitration. It distinguishes between substantive and procedural rights of the investor and also between the derivative and direct rights approach. As the investment treaty has a broad objective, which is to promote foreign investment, and not just giving an investor a direct access to the investment arbitration regime, this should additionally lead to a more profound embedment of investment treaty arbitration within public international law. In the ‘second part’ of his monograph de Brabandere draws implications from the procedural aspects of the investment treaty regime and by its application of main principles of public international law as to the public international law character of investment treaty arbitration. By examining the impact of the public international law extent upon the role, function and qualifications of arbitrators (Chapter 3), the applicable law and non-investment considerations (Chapter 4), the transparency and public access (Chapter 5), and the public international law remedies (Chapter 6) in investment treaty arbitration, it can be deducted that investment treaty arbitration includes many features of other public international law dispute settlement mechanisms. de Brabandere positions the role of the arbitrators in investment treaty arbitration somewhere between the role of arbitrators and judges in inter-State disputes and international commercial arbitration. The regard in which public international law is held within the investment treaty arbitration context further depends much on the specific legal background of the arbitrator.

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Concerning the applicable law and non-investment considerations in investment treaty arbitration it is notable, that the arbitral tribunals only give themselves the jurisdiction concerning possible human rights violations when they are related or affect the involved investment and generally remain reluctant to consider human rights obligations within investment treaty arbitration. de Brabandere further explains why investment treaty arbitration should be transparent and public (150–151) and establishes that e.g. non-disputing party submissions and amicus curiae submissions are also allowed under other public international law dispute settlement mechanisms such as the European Court of Human Rights, the Inter-American Court of Human Rights and international criminal tribunals and courts. In the last chapter of the monograph he reaffirms that investment treaty arbitration strongly relies on public international law remedies, be it in cases of compensation or nonpecuniary remedies and only in cases of moral damages can move away from general principles of international law, not falling within the jurisdiction of the investment tribunal (196). Critics might say that the focus on the treaty part of investment treaty arbitration is a deliberate and thoughtful choice, which however leaves the categorisation of contractual claims and disputes open. The same could be argued for the main focus being on the ICSID Convention and investment treaty arbitrations under its auspices, leaving open the categorisation of investment treaty arbitrations under other commercial arbitration rules, whose awards can e.g. be scrutinised by domestic courts in their enforcement stage, other than those being privileged pursuant to Article 54 ICSID Convention. Further, concerning the second part of the monograph, it might be argued that implications from procedural aspects can be a helpful tool to characterise a legal subject matter, however, they might not always be the most reliable and significant ones, especially as they even differ in different dispute settlement procedures within public international law. Eventually, de Brabandere’s monograph constitutes a stimulating piece which is in line with the current trend of classifying investment treaty arbitration within a legal framework, be it public law, or on the edge of public international law and international commercial arbitration and where especially States – who might probably be in favor of de Brabandere’s approach – try to reassert their control over the whole investment treaty arbitration process. Therefore, without a doubt, future elaborations about the nature and classification of investment treaty arbitration within the matrix of law will have to deal with de Brabandere’s monograph. THOMAS HOPPE Doctoral Candidate Walther Schücking Institute of Public International Law at the University of Kiel

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Stuart Casey-Maslen/Andrew Clapham/Gilles Giacca/Sarah Parker: The Arms Trade Treaty: A Commentary. Oxford University Press, Oxford/New York 2016, xxviii+502 pages, ISBN 9780198723523. After years of negotiations and several failures to reach consensus on a treaty regulating conventional arms transfers, the UN General Assembly adopted the Arms Trade Treaty (ATT) on 2 April 2013. It entered into force on 24 December 2014 and at the time of writing 91 States are parties to the treaty.6 The difficulties in drafting a treaty that would be acceptable to all or most States participating in the conferences on the ATT are reflected in the text that was eventually adopted. Some of its provisions, even crucial ones, are framed in rather vague terms. The ATT’s success in establishing “the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms” (Article 1 ATT) thus stands and falls with its uniform application and implementation by State parties. The present commentary, published in the Oxford Commentaries on International Law series, greatly facilitates this endeavour by providing an in-depth analysis of the content and background of each of the treaty’s provisions. It was co-authored by Stuart Casey-Maslen, Andrew Clapham, Gilles Giacca and Sarah Parker, all of whom participated in the negotiations on the Arms Trade Treaty either as advisors to States or representing non-governmental organisations. The book analyses the treaty’s provisions article by article. After an introduction into the historical background of and rationale for the treaty (1–9), the title, preamble and principles are analysed (14–32), before each article is discussed in greater detail (41–471). The discussion of specific articles is usually structured in the same way in that it starts with an overview, continues with clarifying the relationship to other provisions and sets out the preparatory discussions and negotiations, before commenting on different aspects or paragraphs of the article. The book ends with a few remarks on the adoption of the treaty (472). It would go beyond the scope of this review to deal with the commentary to all articles. Instead, only the core obligations of Articles 6 and 7 ATT will be discussed. These provisions prohibit arms transfers and establish criteria for States parties’ decisions on export authorisations and apply to conventional arms listed in Article 2 (1) ATT as well as to ammunition/munitions and parts and components as defined in Articles 3 and 4 ATT, respectively. Article 6 ATT is arguably the most far-reaching provision of the treaty in that it comprises a number of absolute transfer prohibitions for conventional arms. Transfer authorisations are to be denied if the transfer would violate a State party’s obligations under measures adopted by the United Nations Security Council (Article 6 (1) ATT) or under international agreements to which it is a party (Article 6 (2) ATT) and if, at the time of authorisation, it has knowledge that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a party (Article 6 (3) ATT). After a short overview and analysis of the Article’s relationship to other provisions, Stuart Casey-Maslen and Gilles Giacca describe its 6

The status of signatures and ratifications is available at: https://treaties.un.org/pages/ViewDetails. aspx?src=TREATY&mtdsg_no=XXVI-8&chapter=26&clang=_en (accessed on 1 February 2016).

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drafting process, in particular that of Article 6 (3) ATT, which underwent the most significant changes. The actual commentary then turns to discuss each paragraph of Article 6 and their elements in greater detail. The authors analyse the framework for Security Council arms embargoes under the UN Charter and the types of transfers covered under Article 6 (1) ATT as well as whether non-Member States are also bound by Security Council sanctions. They proceed to discuss the relevance of a number of treaties under Article 6 (2) ATT with a focus on two questions that were discussed in the drafting process of the treaty but ultimately left open, namely whether there is an outright prohibition to transfer arms to armed non-State actors and whether human rights treaties are also covered under Article 6 (2) ATT. Andrew Clapham outlines what is required for a State to have knowledge that the arms concerned would be used for the commission of any of the listed acts in Article 6 (3) ATT and what level of risk of such an act to occur is necessary. He continues by defining the acts listed in Article 6 (3) by drawing on other international agreements as well as relevant jurisprudence. Should an export not already be prohibited under Article 6 ATT, a State party, before authorising an export of arms, has to assess whether they would contribute to or undermine peace and security or could be used to commit or facilitate serious violations of international humanitarian or human rights law or an act of terrorism or transnational organised crime under Article 7 ATT. It must also consider measures that could mitigate the afore-mentioned risks. If, however, the State party comes to the conclusion that there is an overriding risk for the negative consequences to occur, it may not authorise the export. Again, the provision’s relationship to other articles and its drafting process are set out before the actual commentary explains the meaning of the terms used. Crucially, Andrew Clapham devotes much attention to clarifying the meaning of serious violations of international humanitarian law and international human rights law. Equally important and an even more contentious issue during the drafting of the treaty is the employment of the term “overriding risk” in Article 7 (3) ATT that is addressed and rightfully criticised by Stuart Casey-Maslen. As is apparent from the foregoing, the commentary constitutes a meticulous and wellstructured study of the ATT that will be highly useful not only to academics but also to practitioners working on the subject of arms transfers. Above all, it sheds light on a number of vague terms and potential loopholes in the ATT by reference to the treaty’s drafting process, its object and purpose, States parties’ other relevant obligations under international law and their initial views on how the treaty should be interpreted. While criticism with regard to the treaty’s language is not completely absent from the commentary, it is very nuanced and the authors’ goal clearly is to make the treaty work as well as possible. It is to be hoped that States parties’ will widely consult the commentary both when deciding on individual transfer authorisations and generally when implementing the treaty at the domestic level. MARLITT BRANDES LL.M. Doctoral Candidate Walther Schücking Institute for International Law, University of Kiel Research Associate at the University of Potsdam

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Alice Edwards/Laura van Waas (eds.): Nationality and Statelessness under International Law. Cambridge University Press, Cambridge 2014, 306 pages, ISBN 9781107032446. This collection of essays addresses international statelessness law and closely related issues pertaining to regulation and content of nationality under international law. In the first chapter, ‘The Meaning of Nationality’, Alice Edwards offers an overview of the current meaning and implications of nationality in international law, addressing both “procedural” and “substantive” aspects of this regime and emphasising its link to international human rights law. Edwards’ contribution thus paves the way for the discussion in the following chapters, together with Matthew Gibney’s ‘Statelessness and citizenship in ethical and political perspective’. In his theoretical-political analysis of the implications (51–52) and “uses” (53) of statelessness the author notes that today stateless people, unlike those living in inter-war Europe, are not necessarily subject to a risk of deportation or other treatments, “which make deportation look civilized” (52), thanks also to the emergence of human rights standards not linked to nationality. At the same time, he invites us “not to exaggerate the protection and virtues of modern citizenship for most of the world’s denizens: where one is born into citizenship is almost as important as whether one is born into citizenship”. It may also be noted, in this regard, that where one is born into statelessness is equally decisive in terms of the level of protection of fundamental rights likely to be enjoyed throughout life. Indeed the link between nationality law, statelessness law, and human rights emerges, as a common thread, in all subsequent contributions; rather than engaging in a comprehensive discussion of all aspects of international nationality and statelessness law, these contributions focus mainly on action at UN level in addressing issues such as ‘The UN Statelessness conventions’ (Laura van Waas); ‘The UNHCR’s mandate and activities to address statelessness’ (Mark Manly); ‘Women, nationality and statelessness – The problem of unequal rights’ (Radha Govil and Alice Edwards); and ‘The nexus between statelessness and migration’ (Sophie Nonnenmacher and Ryszard Cholewinski). This is in line with the expertise of several authors, who are actively involved in the efforts of UNHCR and other agencies to tackle the legal aspects of nationality and statelessness at the global level. Whereas the perspective adopted by the book implies that it does not include separate analysis of regional efforts in this field, developments at the regional level are taken into account in specific chapters; for instance, Jorunn Brandvoll considers the case law of the Inter-American and European Courts of Human Rights and of the Court of Justice of the European Union when discussing ‘Deprivation of nationality – Limitations on rendering persons stateless under internal law’; GerardRené De Groot addresses also the European Convention on Nationality in ‘Children, their right to a nationality and child statelessness’; and Ineta Ziemele deals not only with the ILC codification exercise on the topic but also with developments within the Council of Europe in her chapter on ‘State succession and issues of nationality and statelessness’. Several contributions also offer interesting insights on national practice. Notably the final chapter – ‘More or less secure? Nationality questions, deportation and dual nationality’ by Kim Rubenstein and Niamh Lenagh-Maguire – includes two case studies on the United Kingdom and Australia. While the whole book confirms the assumption of Matthew Gibney, that “[p]ossession of

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citizenship is almost always a necessary condition for securely holding fundamental rights in the contemporary world” (62) these case studies show how under specific circumstances possessing two or more nationalities may render deprivation of nationality easier – and, hence, the individual’s position ‘less secure’. All contributions are clear, informed and provide an interesting overview of both the historical background of the current legal framework of statelessness and of problematic contemporary developments. The book as a whole offers a coherent and insightful picture of the international regulation of nationality and statelessness, where specific issues are analysed by considering the broader regulatory context. As Mark Manly rightly points out with reference to the 1954 UN Convention Relating to the Status of Stateless Persons and 1961 UN Convention on the Reduction of Statelessness, ‘these two treaties cannot be applied in isolation and should be viewed as forming part of a much wider web of international standards relating to prevention and reduction of statelessness and protection of stateless persons’ (93); this systemic approach is apparent in the analysis of a number of other issues such as the interconnection between the UN Refugee and Statelessness Conventions (in van Waas’ contribution, 53–54); or the link between statelessness and, on one hand, discrimination against women (discussed by Govil and Ewards) and irregular migration (as highlighted by Nonnenmacher and Cholewinski) on the other hand. A few minor inaccuracies in the editing (e.g. Latin is not always impeccable) do not detract from the interest of this collection; the clarity and concision in presenting the different contributions and their internal coordination makes them, and the book as such, a useful teaching tool – an aspect that is enhanced by the list of questions at the end of each chapter, which are aimed at fostering discussion and reflection. At the same time the collection provides stimulating reading for researchers interested in International Law of nationality and statelessness – but also in International Human Rights and International Law in general. For instance, Manly’s discussion of the role of UNHCR in promoting implementation of international guarantees against statelessness touches upon one aspect of a broader trend whereby compliance with international standards is often ensured through technical assistance and non-confrontational means, a phenomenon of growing importance well beyond international human rights law. This and other examples confirm the editors’ contention that ‘international statelessness law has much to contribute to our understanding of the functioning of the modern international legal system’ (1). The book under review provides useful guidance and raises several challenging questions also in this respect. SERENA FORLATI Associate Professor of International Law University of Ferrara

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Yves Haeck/Oswaldo Ruiz-Chiriboga/Clara Burbano-Herrera (eds.): The Inter-American Court of Human Rights: Theory and Practice, Present and Future. Intersentia, Cambridge 2015, 832 pages, ISBN 9781780683089. In 2014, the Inter-American Court of Human Rights (IACtHR) celebrated its 35th anniversary. The topics of the court’s jurisprudence, which range from violent internal armed conflicts to the protection of vulnerable groups, reflect many of the shifting challenges of human rights protection in Latin America after the wave of re-democratisation of the 1980’s. These challenges also influenced the court’s sometimes distinct development of the American Convention on Human Rights’ (ACHR) guarantees and institutions. Today, an accurate view on the Inter-American System of Human Rights necessitates an in-depth analysis of caselaw of the IACtHR. The book under review commemorates the court’s anniversary and aims to provide such a “multifaceted and comprehensive” analysis of the court’s practice. It is structured into ten parts and collects 33 contributions. Among its many distinguished authors are two former judges of the court, several former staff attorneys of the court and/or the Inter-American Commission of Human Rights as well as several established academics in the field. While there is a foreword of the IACtHR’s registrar, Pablo Saavedra Alessandri, who provides a short introduction into the court’s development, there is no introduction or conclusion by the editors. The first part of the volume relates to “the reasoning of the court”. Regarding the court’s interpretative method, Marijke de Pauw analyses the IACtHR’s use of external sources which are not limited to binding human rights treaties but include international soft law instruments as well as treaties not ratified by the Member State in question. Defending the IACtHR from criticism regarding the legitimacy of its universalist approach, she argues that the regional background, characterised by the prevalence of systematic human rights abuses, required the court to look further than regional practice and a regional consensus on human rights. The effet utile principle also underlies the court’s flexible and informal approach to evidence in cases of massive human rights violations. In his piece, Álvaro Paúl concedes that international courts may require a higher degree of flexibility than domestic courts. However, in the light of the IACtHR’s binding orders to prosecute specific individuals responsible for human rights violations he argues that the court should start to establish clear evidentiary rules. The second part deals with “procedural aspects”. It contains an article by Diana ContrerasGarduño, Kristin Xueqin Wu and Leo Zwaak regarding the IACtHR’s Legal Assistance Fund which began its operation in 2010. The authors scrutinise the procedures of the fund and the reimbursement clause under Article 5 of the Fund’s Rules of Operation, which allow the IACtHR to “order” reimbursement against the respondent State at its discretion. In their opinion, the fact that the assessment of applications to the fund is uniquely done by the President of the IACtHR raises questions concerning the fund’s interference in the litigation of the case. Drawing lessons from other international courts, they recommend to establish clear guidelines on the assessment of applications and to shift some of the decision-making power from the President to an administrative body.

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Parts three to seven of the book relate to the development of the substantive guarantees of the ACHR and cover a wide range of special subjects. An important aspect of the Court’s case law concerns the development of economic, social and cultural rights under the ACHR. In his case study of the the IACtHR’s judgment in Yakye Axa v. Paraguay, Scott McKenzie shows how the court developed the right to water as part of the right to a dignified life (Art. 4 ACHR). Thomas Antkowiak’s contribution provides context to this decision as he analyses the general approach of the IACtHR’s to social, economic and cultural rights. The IACtHR so far neither relied on the Additional Protocol on Economic, Social and Cultural Rights (Protocol of San Salvador) nor on Art. 26 ACHR, which refers to the rights “implicit” in the OAS Charter. Instead, the court actively developed these rights “by other means” under the substantive guarantees in the first part of the ACHR. The author suggests that the court could give substance to Art. 26 ACHR by referring to the American Declaration on Human Rights and recommends to find Article 26 violations particularly when national legislation regressively impacts social, economic and cultural rights. A more established line of the court’s case law concerns the consequences of gross and systematic human rights violations and the rights of victims. Regarding reparations under Article 63 (1) ACHR, the contribution of Agostina N. Cichero and Sebastián A. Green Martínez picks up the debate on the punitive nature of the court’s orders. While the former president of the IACtHR Cançado Trindade argued in favour of the recognition of concept of the crime of the State, the authors maintain that the court’s reparation orders were not of a punitive but of a compensatory nature. Frédéric Mégret and Jean-Paul S. Calderón contribute to the debate on the “Criminalization of Inter-American Human Rights Law” due to the IACtHR’s case law on the duty to prosecute human rights violation. Over the years, the IACtHR developed a strict view regarding this duty which it also framed as victims’ rights under Articles 8 and 25 ACHR. Part eight and nine of the volume cover the relationship of the IACtHR to domestic courts and to other international courts. In its decision in Almonacid Arellano v. Chile the IACtHR famously developed the obligation of domestic institutions under Art. 1 (1) ACHR “to exercise a sort of ‚conventionality control’ between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights”. Laurence Burgogue-Larsen retraces the development of the conventionality control doctrine and analyses the burgeoning number of publications on this subject. As Eric Tardif shows, an important impact of the conventionality control doctrine can be seen in Mexico, which introduced corresponding standards in its 2011 constitutional reform on human rights. Regarding the interaction with other international courts, two articles cover the European Court of Human Rights (ECtHR). Cristiana Domínguez’ analysis shows the importance of the ECtHR’s case law, which its Inter-American counterpart cited in nearly two thirds of its contentious cases. Regarding the more recent past, the author finds a growing tendency of the European court to cite the IACtHR’s jurisprudence. Martín Nicolás Montoya Céspedes deepens the study of this subject with regard to positive obligations. The author finds that the Strasbourg court has influenced an important part of the IACtHR’s positive obligations, although there are some rights in which the court did not rely on European case law. Con-

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versely, the author detects a growing tendency to rely on the IACtHR’s case law concerning the duties to investigate, prosecute and repair human rights violations. The last part of the book concerns the ongoing discussion on the Inter-American System’s reform. Since the year 2011 these developments gained momentum under a new working group in the OAS Permanent Council. Claudia Martín und Diego Rodríguez-Pinzón retrace the debate and argue that the latest initiatives run the risk of damaging the independence and functional capacity of the Inter-American Commission. In fact, the grave financial crisis of the Commission in 2016, albeit not directly connected to the “strengthening process”, clearly showed the dangers to this fragile and highly politicised regional human rights system. This short selection of articles shows the broad spectrum of subjects covered by the collection under review. The book’s manifold contributions illustrate the increasingly varied case law of the IACtHR and contribute to many different and ongoing scholarly debates. While it certainly is a “multifaceted” contribution the book is not a “comprehensive” study of the IACtHR’s practice during the first 35years of its existence. It lacks introductory chapters which would have allowed the reader to contextualise and connect the different contributions and leaves out a number of important subjects in the court’s case law, such as freedom of speech or judicial independence. Nevertheless, it provides for a detailed picture of many crucial developments and will certainly retain its relevance beyond the next anniversary of the Inter-American Court. PHILIPP STÖCKLE Doctoral Candidate Walther Schücking Institute for International Law at the University of Kiel

Pierre Hauck/Sven Peterke (eds.): International Law and Transnational Organised Crime. Oxford University Press, Oxford 2016, xlvi+555 pages, ISBN 9780198733737. Transnational organised crime constitutes both a challenge for national societies and a current threat to international peace and security, which is potentially able to undermine both democratic institutions and regional stability. Prior to the 1980s, organised crime was essentially considered to be an internal problem of a few States; with ongoing globalisation the phenomenon has increasingly developed into a transnational challenge, bringing to light the need for improved international regulatory frameworks and better capacity building by States, including new tools and strategies for combating impunity. The issue has long been disregarded by international legal doctrine and it still plays a rather marginal role in academic writings. A comprehensive examination of such a complex phenomenon in an international law perspective is not an easy task, because it requires a huge number of competences both in criminal law and in different fields of international law. Thus, an in-

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depth analysis of the issue can only be multidisciplinary in its approach and encompass different fields of knowledge. The aim of this book is precisely that – to fill the gap in current academic legal literature by giving a thorough account of the key concepts relevant to this area of international law in a systematic publication offering deep insights into transnational organised crime. The book aims to approach the subject in a comprehensive way, relying on a team of thirty authors, both academics and practitioners, with a public international law and/or criminal law background to provide the necessary multidisciplinary tools. The collection contains 23 essays organised in five parts. Section I analyses a number of ‘general questions’ relating to transnational organised crime, also taking into account the criminological fundamentals that are essential for a critical understanding of the topic. Frank G. Madsen offers a detailed framework of the issue in a historical perspective. He provides an overview of the evolution of international cooperation against transnational organised crime, from the fight against piracy in the seventeenth century to the formal roots of criminal police cooperation in the late nineteenth century, to the developments of the modern era. Arndt Sinn seeks to enucleate the fundamental definitional concepts relating to organised crime in order to identify the specific elements and features distinguishing organised crime from other phenomena characterised by some common elements. Thomas Feltes and Robin Hofmann outline the impact of transnational organised crime upon States and societies from a socio-economic, political and legal viewpoint. Bernd Hecker analyses the multifaceted efforts put in place to fight transnational organised crime in the European Union. Hecker recognises that the European Union is called upon continuously to adapt its response to transnational organised crime and coordinate measures within and outside its borders in an effort in which operational cooperation between the authorities of the Member States plays a central role. With a view to reinforcing effective cooperation among States, both the exchange of information between the law enforcement authorities of the Member States and European Union agencies and the use of joint investigation teams should be intensified and made more effective (83). Finally, Bettina Weißer undertakes to analyse different forms of terrorism in a historical perspective, highlighting the current notion of terrorism and the features distinguishing it from transnational organised crime; the author also looks at possible convergences and the growing nexus between terrorism and transnational organised crime in their more recent manifestations. Definitional issues surrounding the notion of transnational organised crime are repeatedly considered in the essays included in this first section (e.g. 16–17; 24–25; 42; 97–98). However, the notion of transnational organised crime does not seem to have been enucleated in clear-cut terms, leaving room for further analysis. Section II contains systematic assessments of the pertinent international treaties and documents dealing with suppression of the phenomenon at the universal level. The United Nations core conventions on transnational organised crime are extensively examined, including the 2000 United Nations Convention against Transnational Organised Crime (Palermo Convention) and its three additional Protocols on the trafficking of human beings, smuggling

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of migrants and illicit manufacturing of and trafficking in firearms, their parts and components and ammunition (respectively analysed by Neil Boister, Hans-Joachim Heintze and Charlotte Lülf, Andreas Schloenhardt and Aaron X. Fellmeth) and the 2000 United Nations Convention against Corruption (Michael Kubiciel and Anna Cornelia Rink). Less explored conventions such as the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances are also taken into account (Richard Vogler and Shahrzad Fouladvand). They are all wide-ranging analyses. The authors offer an accurate picture of the frame of reference adopted within the United Nations in respect of treaties and combine the historical aspects of their conclusions with considerations on the efforts at collaboration among States parties to the relevant instruments, which range from informal police cooperation and the exchange of information to legal assistance in fighting the various forms of transnational organised crime. The analyses highlight that international regulation within the United Nations offers States a set of strong tools to aid them in their fight against transnational organised crime. However, there is a sense that the purpose of the Palermo Convention and its Protocols and other relevant conventions has not been fully realised. Loopholes and inefficiencies still remain in their domestic implementation (see 127–128; 236–237). Furthermore, with respect to the Palermo Convention, Boister maintains that although the goal of establishing a mechanism for reviewing its implementation by States parties was a subject of discussion as early as 2004, at the first session of the Conference of the Parties, at the time of writing no such mechanism had been agreed on (147). However, it should be noted that an agreement in this respect was finally reached during the last session of the Conference of the Parties held in 2017 (after the publication of the book). Section III analyses the impact of transnational organised crime in the context of other relevant international regimes and issues, such as the anti-money laundering regime (Louis de Koker and Mark Turkington), the illegal trade in endangered species of wild fauna and flora (Hennie Strydom), the sale of children, child prostitution, and pornography (Thorsten Müller), cultural property (Bernhard Kretschmer), and cybercrime (Dominik Brodowski). This section attempts to respond to the demand for a systematic compilation of the various international regimes that set standards for national legislators and highlights some current inefficiencies both in international norm-setting activity and in domestic implementation (263; 272; 285; 302). One merit of this section is that it takes account of the increasing fragmentation of international law, an aspect that deserves special reflection from the perspective of the relevant subareas. It also analyses usually neglected fields, including new challenges linked with cybercrime. Section IV seems to be particularly interesting and innovative because it adopts an original approach and focuses upon an issue that has not previously been the subject of in-depth analysis in the international legal doctrine. It analyses the role of transnational organised crime in relation to certain branches of international law, namely the use of force and the law of armed conflict, international human rights, international criminal law, and the law of the sea. In their assessment, the authors observe that the phenomenon of transnational organised crime does not fit easily into the framework of international law, mainly due to the fact that the international legal order was created as a legal relationship between States (379). In many ways, this order is not sufficiently equipped to address problems that non-State actors such as organised criminal groups pose today (ibid.).

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Pierre Thielbörger seeks to answer some of the most important legal questions relating to the interplay between transnational organised crime on the one hand and the use of force in international law on the other: whether the use of force against a foreign territory from which organised criminal groups operate can be justified as self-defence (367 et seq.) and whether addressing the problem of organised crime lies within the competence of the Security Council under Chapter VII UN Charter (375 et seq.). In its 2005 judgment in the Case Concerning Armed Activities on the Territory of the Congo, the International Court of Justice left the question of a right of self-defence against non-State actors explicitly open (para. 147), although the case presented a prime opportunity to clarify this highly contested issue. Based on the open wording of Article 51 UN Charter, Thielbörger argues that organised criminal groups can commit ‘armed attacks’ just like States and thus trigger the right to self-defence by another State (379). Furthermore, transnational organised crime reaching a certain severity is also grounds for action by the Security Council under Chapter VII United Nations Charter (see again 379). On the one hand, Article 39 UN Charter does not require that the threat to international peace and security be caused by State action. On the other hand, the Council has already dealt with transnational organised crime as a threat to international peace and security. The Council has addressed the phenomenon both as a whole, and on a case-by-case basis by focusing on specific regions particularly affected by transnational organised crime and it has also mandated UN peacekeeping and peacebuilding missions to combat the phenomenon and/or to assist national authorities in their own fight against organised criminal activity. Sven Peterke and Joachim Wolf aim to assess the legal status of organised crime groups and their members during an armed conflict of both an international and non-international nature. Organised crime groups are generally excluded from becoming a party to an international armed conflict. States are free to recognise insurgents as belligerents and such recognition would trigger the applicability of the law of international armed conflict. Thus, international humanitarian law may come into play in cases of criminal insurgency where there is sustained control of a certain territory by a criminal organisation that the government is not capable of dismantling, despite the help of armed forces. In practice, however, it is extremely unlikely that States would recognise such situations as triggering international humanitarian law because they fear that this would confer political legitimacy on criminals and give them a privileged legal status (385–386). The same still holds true with respect to internal armed conflicts. In principle, organised crime groups only qualify as organised armed groups under international humanitarian law in exceptional circumstances (391–392). Math Noortmann and Dawn Sedman analyse the relationship between transnational organised crime and human rights and affirm that international legal literature, documents, and policies seem to reveal a confused relationship between criminal offences and human rights violations and underpin the idea that these two issues sit in different policy areas (407). They trace three intersections between transnational organised crime and human rights: the impact of the crime committed on a right of the victim; at the prosecution stage, the perpetrator’s right to a fair trial; and, finally, the branch of law used to remedy the harm caused by the crime (411). According to Noortmann and Sedman, however, there is little difference between ‘crimes’ and infringements of ‘human rights’ because harm or injury is recognised in both cases and whether it is labelled a criminal offence or a human rights violation is secondary to the

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recognition itself. However, the way in which the harm or injury is classified becomes much more pertinent when considering how to respond to it (420). In this respect, the authors examine the relationship between the activities of transnational criminal organisations and human rights issues and the danger that a priority will be given to repressing criminal activity rather than to protecting individual rights; they argue, accordingly, that transnational criminal law enforcement and the prosecution of transnational criminal organisations require a robust and rigorous supervision mechanism to secure the rights of individuals and organisations engaged in transnational criminal activities. Alexander Proelss and Tobias Hofmann analyse how the international law of the sea contributes to the prevention of and fight against transnational organised crime and set out the circumstances and conditions under which States may interdict foreign ships engaged in transnational organised crime. After introducing their essay with a brief overview of maritime zones and jurisdiction under the international law of the sea, the authors focus on the exercise of jurisdiction over ships suspected of being involved in major crimes, such as piracy, human trafficking, drug trafficking, and the transport of weapons of mass destruction. However, they do not specifically address the smuggling of migrants, which is the most recent and controversial activity associated with transnational organised crime at sea. Finally, they analyse the scope of interdiction measures and the limits imposed upon enforcement measures by international human rights law. Pierre Hauck looks at the relationship between transnational organised crime and international criminal law, focusing on the issue of impediments hampering the inclusion of transnational organised crime in the Rome Statute and the general conditions for elevating these offences onto the level of international jurisdiction so that they fall within the scope of international criminal law. Hauck’s analysis shows that transnational organised crime does not fall under the jurisdiction of the International Criminal Court de lege lata; however, the Rome Statute may at least allude to the core crimes where clear intersections occur, especially in cases of crimes against humanity (451 et seq.). In fact, according to the author, transnational organised crime can be an offence triable de lege lata on the basis of international law by some national courts, such as, for example, the Court of Bosnia and Herzegovina, founded by the High Representative of the United Nations in 2000 and having jurisdiction over both war crimes and organised crime (456). Hauck also states that transnational organised crime may form an international crime de lege ferenda and, in this perspective, the jurisdiction of the International Criminal Court over transnational offences may be derived either from customary international law or from other State consent (460 et seq., 469). Section V, finally, considers a number of procedural and technological challenges for the investigation of transnational organised crime from both a national and international standpoint. Sheelagh Brady analyses the current obstacles national authorities meet when seeking to effectively fight transnational organised crime, as well as the existing loopholes in national law enforcement strategies, and highlights some proactive policing tools States can adopt in order to tackle organised crime. In regard to the latter, the author provides an overview of both classic and new law enforcement strategies for addressing the phenomenon at the domestic level: These include the use of informants and whistle blowers, seizure of assets, intelligence gathering, electronic surveillance, and traditional and online (cyber) undercover

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operations. Frank G. Madsen outlines the principal operative cooperation tools adopted by international law-enforcement authorities in the fight against international organised crime, examining both the actors (including Interpol, Europol and, Frontex) and the forms of cooperation (exchange of data, information and evidence, undercover operations and extradition). The author offers a critical analysis of modern forms of law enforcement, including the increasing militarisation of the police (508–509), their close links with the security services, and the resulting impact upon privacy rights (507–508). If one looks at the whole picture, the editors have presented a helpful and thoughtful overview of transnational organised crime; the book provides useful tools for both practitioners and academics who are interested in disciplines dealing with transnational organised crime and seek easy access to this area of law. The authors’ contributions furnish an accurate, up-todate and well-structured guide to the issues involved, providing the reader with a comprehensive picture of the current status of international law addressing transnational organised crime. Moreover, they highlight current stimulating challenges relating to transnational organised crime, suggesting directions for future research in this field. The editors do not review the topic of every essay of the book in the general conclusions, which, in my personal opinion, would be useful for the reader, also due to the number of different points of view and the range of issues examined in the collection as a whole; in any case, they partially compensate for this lacking with a clear and well-structured preface, which gives a comprehensive outline of the book’s structure and methodological approach to the issue. LAURA SALVADEGO Assistant Professor in International Law University of Macerata

Gro Nystuen/Stuart Casey-Maslen/Annie Golden Bersagel (eds.): Nuclear Weapons under International Law. Cambridge University Press, Cambridge 2015, 503 pages, ISBN 978 1316500699. With the approval of the UN General Assembly on 24 December 2016 of its First Committee’s decision to “to convene in 2017 a United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination” beginning in March 2017,7 analyses of the legality of nuclear weapons under international law will likely receive renewed attention as the drafting of a treaty banning nuclear weapons commences. 7

See GA Res. A/RES/71/258 of 24 December 2016 adopted with 113 in favour, 35 against and 13 abstentions, as well as GA First Committee Res. A/C.1/71/L.41 of 27 October 2016 (Taking forward multilateral nuclear disarmament negotiations) adopted with 123 in favour, 38 against and 16 abstentions.

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When the editors, distinguished experts in weapons law, and renowned contributing scholars and practitioners first published ‘Nuclear Weapons under International Law’ in 2014, they intended to offer a comprehensive and “dispassionate” analysis of the status of nuclear weapons under existing international law. Given that the main research of the book seems to have been concluded in the autumn of 2013, developments in international treaty and customary law are reflected until this point in time, with a particular focus being put on the influence of the International Court of Justice’s (ICJ) Nuclear Weapons Advisory Opinion since 1996. The publication hence constituted an important recent contribution to the existing legal literature on nuclear weapons. The book is preceded by a factual introduction and divided into seven parts of which six address substantive issues relating to nuclear weapons and the use of force, international humanitarian law (IHL), international criminal law, international environmental law, international disarmament law as well as international human rights law, and of which one provides concluding observations.8 After a first chapter dealing with the use of nuclear weapons by a State in self-defence against another State in which he concludes that “the possibility of nuclear weapons being used in compliance with necessity and proportionality cannot be ruled out in all conceivable circumstances ”(30), Nobuo Hayashi examines the legality of the threat of use of nuclear weapons under ius ad bellum in a second chapter. Whereas it addresses an important issue, this chapter is not easily accessible as certain aspects, e.g. the notion of ‘intention’, reappear throughout the chapter (37 and 51). In a later chapter, which can be considered particularly valuable because it engages a neglected aspect of the Advisory Opinion, Gro Nystuen discusses – and rejects – the validity of the ICJ’s claim that the threat of nuclear weapons is generally also contrary to IHL (149). This chapter should be of interest to anyone dealing with the separation of ius ad bellum and ius in bello and nicely complements the equally recommendable chapter by Jasmine Moussa who compellingly argues against ‘conflationist attempts’ and in favour of the ‘separation principle’ (62). The chapters by Stuart Casey-Maslen and Simon O’Connor on the legality of the use of nuclear weapons in the conduct of hostilities, as reprisals and under the ‘unnecessary suffering rule’ respectively discuss the application of general IHL provisions to the use of nuclear weapons. While certain sections might have benefited from more succinctness in the general parts, the chapters raise important nuclear weapons-specific issues (144), employ different theoretical scenarios (146) and convincingly subsume the use of nuclear weapons. A notable exception includes the cursory treatment of IHL rules applicable in non-international armed conflicts (126). Similarly, the subsequent chapters by Stuart Casey-Maslen and Annie Golden Bersagel recap the most relevant international criminal law notions (including forms of criminal liability such as ‘aiding and abetting’ by providing weapons-grade material or technology, (220)) when

8

See also Eleanor Mitchell, Nuclear Weapons under International Law (Book Review), International Review of the Red Cross 97 (2015), 913, and Dieter Fleck, Nuclear Weapons under International Law (Book Review) Journal of Conflict and Security Law 20 (2) (2015), 328.

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considering the possibility of nuclear weapon use constituting an international crime and being subject to the jurisdiction of the International Criminal Court (228). The book’s following part on international environmental law is one of its strongest ones. Martina Kunz’s and Jorge E. Viñuales’ chapter on environmental approaches to nuclear weapons provides an excellent overview of the international environmental law framework governing nuclear weapons use, but also production, transport, maintenance or dismantlement. In addition to setting out different approaches to the effects of armed conflict on international environmental law, i.e. on the continued operation of treaties, treaty-specific responses and the relationship with IHL, in a very comprehensible way (271), the chapter thus addresses the regulation of activities short of detonation and practical measures to enforce them (284). Its reading is recommended prior to Erik v. Koppe’s chapter dealing with the protection of the environment during international armed conflicts specifically. In describing the links between testing and disarmament, Don Mackay establishes the basis for subsequent chapters and discusses the implications of not only the Comprehensive Nuclear-Test-Ban Treaty (CTBT) and regional treaties, but also the Non-Proliferation Treaty (NPT). He hence argues that while “most non-nuclear weapon States are bound by a treaty obligation [NPT or regional] not to test” (301), nuclear weapon States are not yet subject to a comprehensive treaty prohibition, but to an emerging customary norm prohibiting testing (294), in any case atmospheric testing (316). Cecilie Hellestveit and Daniel Mekonnen make the case for nuclear weapon-free zones (NWFZ) asserting that their importance has not diminished, but increased since the end of the Cold War (369). While their chapter examines the historical, political and legal particularities of NWFZ, a particularly helpful, comparative analysis of legal issues arising in NWFZtreaties (e.g. the definition of area covered or impact of armed conflict) can be found in Marco Roscini’s chapter (324) on a possible NWFZ/WMDFZ in the Middle East. Gro Nystuen’s and Torbjørn Graff Hugo’s knowledgeable analysis of the NPT’s background and three-pillared ‘grand bargain’ is very insightful for today’s nuclear weapons discourse. It is logically supplemented by Daniel H. Joyner’s chapter on the interpretation of Article VI NPT, in which he maintains that Article VI constitutes a legal obligation (416) and examines its different aspects (410). Stuart Casey-Maslen’s following chapter describes initiatives to combat ‘nuclear terrorism’ by non-State actors and leads to a final part in which Louise Doswald-Beck substantiates the added value of a human rights perspective inter alia with the existence of enforcement mechanisms (435) and analyses pertinent human rights, such as the right to life, in the context of armed conflict and nuclear weapon use. Stuart Casey-Maslen concludes with an evaluation of the right to a remedy under human rights law. After some preliminary thoughts on the existence of responsibility, the chapter discusses possible remedies for victims of nuclear weapons use. Arguing that “a potentially effective guarantee of non-repetition is a comprehensive ban” (476), the chapter makes a transition to Gro Nystuen’s conclusion. She recalls the authors’ predominant interim result that while no explicit and general prohibition against nuclear weapon

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use, production, possession, testing etc. currently exists, international law imposes important restrictions. The negotiations on a nuclear weapons ban treaty might break the debate’s ‘stalemate’ and lead to such explicit prohibitions. Scholars and practitioners interested in learning more about the legal controversies surrounding nuclear weapons will then surely appreciate this book’s comprehensive and detailed analyses. KATJA SCHÖBERL Legal and Dissemination Advisor German Red Cross, Berlin

Ben Saul (ed.): The International Covenant on Economic, Social and Cultural Rights. Travaux Préparatoires 1948–1966. Oxford University Press, Oxford 2016, two volumes, cxxvi + 2580 pages, ISBN 9780198758327. The International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR) has long led a somewhat inconspicous existence, although the rights contained therein – to work under just conditions, to physical and mental health, to a minimum standard of living, education and cultural participation – are actually those that capture most of people’s basic everyday needs in any kind of society, under any kind of government. Due to the weak phrasing of its Article 2 (1) which allows the State parties to the convention to progressively realise these rights in accordance with their capability, the ICESCR has suffered from the perception of being a second-rate treaty, so to speak, in terms of legal commitment, especially in comparison with its sister convention, the International Covenant on Civil and Political Rights (ICCPR). It is perhaps for this reason that a collection of its travaux préparatoires was so long in coming, when Bossuyt’s Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights appeared in 1986. Nevertheless, the attention to economic, social and cultural rights is increasing, and in view of this, the main objective of Saul’s extensive collection of preparatory documents is twofold: to close “a major gap” in the library of travaux préparatoires of human rights treaties already in existence, and to make the ICESCR documents, which are strewn about in hardcopy as well as online, more accessible for scholars and legal practitioners alike (xciii). Apart from their historical value, the travaux préparatoires of any international treaty can be used as a supplementary means of interpretation of the treaty’s contents, according to Article 32 Vienna Convention on the Law of Treaties of 1969, as well as identical customary law. The introduction gives necessary – and interesting – background to the ICESCR’s drafting process. It was protracted and complicated, particularly since the rights discussed for inclusion in the Covenant arrived there only after some lengthy travels in various forms, most notably through the Charter of the United Nations (UNC), the Universal Declaration of

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Human Rights (UDHR) and, as a last stopover, the splitting of the single draft UN covenant on human rights into two conventions. It is rather sobering to note that in this process, the arguments produced by State representatives against social, economic and cultural commitments in the form of rights have been much the same in 1948 as they are today. Atfer the introduction, the editor included two excerpts from main influences on the drafting of the UDHR related to social, cultural and economic rights as well, the Statement of Essential Human Rights by A Committee Appointed by the American Law Institute of 1944 (Annex I) and the Inter-American Juridical Committee’s Draft Declaration of the International Rights and Duties of Man of 1945 (Annex II). Both are commented to some extent in the introduction. As to the main part, the document collection, a comparison with Bossuyt’s Guide to the ICCPR suggests itself naturally. Bossuyt arranged and systemised the preparatory materials for the ICCPR mainly along the final set of articles contained in the Covenant explicitly intending to provide guidance to the reader thereby. Saul follows a purely chronological approach instead, at least as far as this is practically possible: Necessarily, the wealth of material – the introduction speaks of tens of thousands of pages – had to be filtered, selected and redacted to become accessible in the chosen form of just two volumes, as explained in the preface. Each of these procedures has its merits. While Bossuyt’s thematic systematisation grants easier access to the material, Saul’s approach leaves more of the original documents’ contents intact, allowing the reader to retrace, to a certain extent, the interdependence of subjects and of the political and the legal realms involved as well. To simplify the research process related to specific themes, Saul does provide subject keywords for each document in the Detailed Contents section at the beginning of volume 1. This is helpful, but would perhaps have been even more so if the strict chronological approach had been broken with for once and the sequence arranged by subject. The index at the end of volume 2 facilitates a keyword search, and it is extensive, but the sheer number of pages listed under many of the keywords here is numbing and makes for rather tedious research work. Generally, the documents selected appear well chosen and presented. Saul focuses on actually rights-related documents as well as on more procedural discussions dealing with matters of interest today, especially concerning the progressive realisation of rights which is symptomatic of the ICESCR. The editing could at times perhaps been indicated more clearly, in order to prevent the impression of all-embracing completeness which must, despite the warnings given in the introduction, sooner or later creep into the reader’s perception; because the wealth of material screened, edited and presented in the two volumes is truly overwhelming. Thus, the work is a great and necessary addition to any human rights library. TINA ROEDER Postdoctoral Reseacher Walther Schücking Institute for International Law at the University of Kiel

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Yuval Shany: Questions of Jurisdiction and Admissibility before International Courts. Cambridge University Press, Cambridge 2016, 186 pages, ISBN 9781107038790. INTRODUCTION: A cursory look at the title of this book may elicit a hasty conclusion that this book may lack the capacity to add any new and ground-breaking scholarship to the academic literature dealing with jurisdiction and admissibility of international courts. Accordingly, an apology may be demanded from the author in consonance with the postulation of one William Paley, an eighteenth century English theologian and philosopher who postulated that an author owed his readers an apology for authoring another run-of-the-mill work. Beneath the title of the book, however, lies an academic goldmine of inestimable value. Contrary to the large literature on jurisdiction and admissibility with respect to international courts, this book focuses specifically on “jurisdiction as a form of delegation of power (the power to exercise judicial power and decide on the interpretation and application of the law).” By extension it views “admissibility as a framework for deciding upon the propriety of exercising such power.” By exploring this uncharted theory of jurisdiction and admissibility, the book has extended the knowledge frontiers in the subject matter in a variety of ways which I will later highlight. The content layout of the book is admirable. In addition to the Introduction and Conclusions, the entire book encompasses three parts. Part I focuses on the concept of jurisdiction and admissibility in international adjudication. The sub-parts under Part I include jurisdiction as a policy tool, jurisdiction as delegated authority, jurisdiction as a power constraint on international courts, the role of admissibility in the exercise of judicial power, and the conflicting considerations governing the review of jurisdiction and admissibility. Part II focuses on jurisdictional decisions of international courts. The sub-parts under Part II include jurisdiction in abstracto and in concreto, distinguishing jurisdiction from substantive law, international court decisions on jurisdiction as a form of category-based case selection, and individual case-by-case selection. Part III focuses on questions of admissibility before international courts. The sub-parts under Part III include the taxonomical challenge and admissibility as a policy tool. In this Part I the author discusses pungently and extensively, the concept of jurisdiction as a policy tool for two major constituencies. The first constituency, the author rightly describes, as the mandate providers which include the states and the international organisations while the second constituency includes the parties. These constituencies collaborate in the establishment of international courts and the submission of their international disputes to the court for adjudication to the end of the “perceived functional utility of adjudication in addressing policy problems confronting international actors”. In other words, the author surmises this policy tool as “a way to advance the goals, interests and values of international actors belonging to relevant political communities or legal regimes.” In this part also, the author pragmatically highlights the advantages of submitting international disputes to international courts and grounded all the advantages in the unique quality of international courts as law-based dispute resolution mechanism.

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Of all the sub-parts under Part I, jurisdiction as delegated authority commands a special focus due to its novelty in the subject of jurisdiction of international courts. The author robustly discussed this sub-part in sub themes like foundational and specific jurisdiction, jurisdiction as delegation, delegation by International Governmental Organisations (IGOs), shared decision making by IGOs and international courts, delegation from domestic courts, agents versus trustees, and jurisdiction as consent. We shall analyse this concept in more details under the General Overview. As a legal and logical follow-up to jurisdiction as delegated authority, the author discusses jurisdiction as a power constraint on international courts. The author correctly asserts that just as jurisdiction encompasses the legal powers conferred on international courts, it also encompassed the limitations on the exercise of such legal powers. Such limitations to jurisdiction may include personal jurisdiction, subject-matter jurisdiction, consent, exhaustion of domestic remedies, etc. Another example of innovative reasoning by the author is the discussion of the sub-part on the role of admissibility in the exercise of judicial power. The author argues that inherent in the legal powers conferred on international courts to adjudicate international disputes is the power of the court not to adjudicate all disputes. In other words, that the legal powers conferred by jurisdiction do not imply the adjudication of all disputes brought before the court. In this sub-part, the author discusses other policy considerations which may impact the exercise of the powers of jurisdiction and admissibility. Generally, such policy considerations may be categorised into two broad topics – effectiveness and legitimacy. In essence, the author argues that these other policy considerations are taken into account by international courts in deciding whether to exercise jurisdiction and admissibility in a particular case. In this last sub-part, the author addresses a subject which, though not so prominent, infrequently influences the decision of an international court in the exercise of jurisdiction. The author classified these considerations as institutional concerns which are borne out of the survivalist concerns of the courts. In Part II the author discusses the subject of jurisdiction from two prisms – in abstracto and in concreto. Underlying this demarcation of jurisdiction is the distinction between the conferral of general jurisdiction or jurisdiction in abstracto and the practical exercise of jurisdiction in concreto. Another innovative topic in this part is the commendable attempt by the author to untwine the legal misconception between jurisdiction and substantive law. On the face of it, jurisdictional questions appear clearly distinguishable from substantive law questions. In practice, however, there arises much confusion as to how to clearly delineate the questions arising from jurisdiction and those arising from substantive law. In the exercise of its jurisdiction, international courts are confronted with the challenge of how to select cases for adjudication. By the postulation of category-based case selection as a criterion for the exercise of the court’s jurisdiction, the author has proffered a legal and logical justification for how the courts apply (and should apply) their jurisdictional mandate. A follow-up to the case selection criteria by international courts is the exercise of discretion by the courts. No doubt, international courts enjoy a certain level of discretion in deciding on

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the type of case to select for adjudication. In the exercise of such discretion, the court may engage in what the author called “individual case-by-case selection.” The exercise of such unrestricted discretion, the author acknowledges, may erode the court’s legitimacy which is the bedrock of its survival. In Part III, the author addresses the taxonomical challenge in delineating the questions of jurisdiction from that of admissibility. The author clearly articulated these questions in the context of “the difference between power to adjudicate and power not to exercise the power to adjudicate.” He asserts, and I concur, that his articulation is in consonance with the judgment of Judge Fitzmaurice in Northern Cameroons ( Cameroon v. United Kingdom ICJ Report 1963, 15). In essence, questions of admissibility do not erode the jurisdiction of the court, but rather permit the court to decline to exercise jurisdiction in the overriding interests of justice. A follow-up to the questions of admissibility and its practical significance is articulated by the author in his postulation of admissibility as a policy tool employed by international courts for judicial propriety. The Jurisdiction of International Courts: Several authors, inclusive of Armin von Bogdandy and Ingo Venzke, have highlighted the critical functions which international courts perform in the international community. In addition to their other functions, international courts facilitate conflict resolution and the interpretation of relevant legal norms. Creatively, the author extended the frontiers of the functions of international courts by the addition of the rules governing jurisdiction and admissibility to the functions of international courts in the international community. The functionality or instrumentality approach with respect to the rules on jurisdiction and admissibility is the bedrock for the garden variety functions performed by international courts. Indisputably, without jurisdiction and by extension admissibility, international courts will be bereft of judicial power to resolve conflicts or interpret legal norms. Nemo dat quod non habet. Another important contribution to knowledge by this book is the application of the principle of delegated authority to the conferral of jurisdiction upon international courts for the following reason. The principle of delegated authority had been popularised and limited to domestic or municipal law dealing with the exercise of some legislative power delegated to the executive branch of government. Under domestic or municipal law, a delegate is prohibited from delegating any part of the delegated power by the maxim of delegatus non potest delegare. In the specialised field of the law governing international institutions, the trinity principle ties the states/international actors, multilateral treaty and international organisation in a trinital bond. Practically, the agreement of States to enter into a multilateral treaty produces essentially international organisations with different nomenclatures. This book has creatively gone beyond the scope of the trinity theory of establishing an international organisation. Rather, the author argues convincingly that “entrusting courts with jurisdiction to adjudicate cases implies a transfer of legal power from states and other international actors to international courts.” In essence, the trinity theory’s end product should not

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be limited to the establishment of an international organisation. Thankfully, this book has added another end product – international courts and their concomitant jurisdiction. The concept of jurisdiction conferral implies the conferral of adjudicatory power to international courts by the States and other international actors. This act of conferral connotes the transfer of two kinds of jurisdiction – foundational and specific jurisdiction. Judge Daxner’s dissent in Corfu Channel referred to them as the two fundamental meanings of jurisdiction in international law. First, the author described foundational jurisdiction as the power of the court to compel the appearance of the disputants before it. Second, specific jurisdiction was described as the power of the court to adjudicate on international disputes. To that end I agree with the author that the practical effect of foundational jurisdiction is the conferral of potential (or in abstracto) power upon international courts. In the same vein, the practical effect of specific jurisdiction is to confer actual (or in concreto) power upon international courts to adjudicate specific international disputes. Other policy and administrative implications arising from the two categories of jurisdiction are with respect to their order and hierarchy. In the order of conferral, foundational jurisdiction is conferred upon international courts prior to the conferral of specific jurisdiction. Justifiably, a foundational jurisdiction is the bedrock upon which the specific jurisdiction is established. Hierarchically, the foundational jurisdiction serves as a check on any attempt by the disputing parties to enlarge the specific jurisdiction of the court. On the contrary, the disputing parties cannot enlarge the foundational jurisdiction of the courts. SUNDAY GOZIE OGBODO Associate Professor University of Benin

Malcolm Shaw: Rosenne’s Law and Practice of the International Court 1920–2015. 5th edition. Martinus Nijhoff Publishers, Leiden/Boston 2016, 1975 pages, ISBN 978900 4217980. The 5th edition of Rosenne’s Law and Practice of the International Court 1920–2015, to be reviewed hereinafter, brings Rosenne’s standard work, now modernised by Malcolm Shaw, on the law and practice of the International Court of Justice (ICJ) up to date since it now includes the work of the Court until the end of 2015. Once again, given the increased workload of the ICJ and the parallel increase in its judicial output, the still four-volume set of books by now covers the more recent jurisprudence of the Court. This is certainly a development to be welcomed – unlike the enormous hike in its price which has almost doubled since the last edition now costing €999 (sic!) despite the fact that the vast part of the content, and certainly more than 90% of it, has virtually remained unchanged since the last edition was published.

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Not the least, and as already mentioned with regard to the last edition, one therefore continues to wonder whether the last volume, which solely contains documents, all of which are publicly available on the Court’s website, is not completely redundant. What is more is that each of the four volumes also contains a complete table of contents and notes on abbreviations. Accordingly, a quite significant number of pages could be spared, in which case the overall work could be quite easily brought into two volumes, which in turn could have significantly lowered the price of the work, or could at least have limited the increase in its price. The 5th edition once again exactly follows the set-up and structure of the last edition which in turn had covered the period up to 2005. As a matter of fact, the content of the overall work, apart from the inclusion of updates and references to more recent judgments of the Court, and more subtle changes in substance required by changes in the Court’s approaches to issues of its procedural law, has remained the same. Thus, as before, Volume I covers, apart from a general introduction and the history of the Court, mainly the Court’s relationship with the United Nations in all its various aspects, as well as the personal and the finances of the Court. Volume II in turn, deals with what might be called the most essential question, namely the extent of the Court’s jurisdiction in both contentious and advisory proceedings. Finally, Volume III analysed the Court’s procedure, again covering interstate cases and advisory proceedings, while, as aforementioned Volume IV contains various documents governing the functioning of the Court, as well as various indices. As in earlier editions, the ‘Rosenne’ particularly convinces by its extremely comprehensive coverage of the Court’s judicial practice, even if it comes at the price that the Court is extensively quoted throughout the whole book. The same is true for the drafting history of the relevant provisions of the Charter of the United Nations, the Court’s statute itself, as well, as far as available, the Court’s rules of procedure. The change in authorship notwithstanding, the ‘Rosenne’ has therefore remained by far more descriptive than analytical in nature, in particular where the Court has already adopted a position on a given legal question, even if references to legal writings on the Court are by now somewhat more frequently referred to. It is worth noting, however, that as far as may be discerned from the work’s index of names, the 2015 book by Juan Quintana, Litigation at the international Court of Justice also published by Brill/Nijhoff, is not referred to at all despite being among the by now three major ‘competitors’ to the Rosenne. Generally, and as rightly put by another reviewer of the last edition, which may by also echoed by this reviewer as far as the new edition is concerned, while the ‘Rosenne’ “may be the first stop whenever a practitioner, academic, or judge has a question about the Court”, and while “it provides a useful, descriptive summary of the Court’s decisions […] and may cautiously comment on inherent problems” it “does not take the matter to a deeper level.”9 It ought to be further noted, however, that some more recent developments in the Court’s jurisprudence are however not even being dealt with in detail, but rather only at the margins, if at all. This relates inter alia first to the requirement of a dispute in order to bring a case, which requirement ever since the Court’s 2011 judgement in the Georgia v. Russia case plays an ever increasing role in the Court’s jurisprudence, the most recent relevant instance being 9

Cf. Sean Murphy, American Journal of International Law, 2006, 963 et seq.

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the various cases brought by the Marshall Islands. It is thus surprising that the Georgia v. Russia case is not even mentioned in the chapter on the dispute requirement at 525 et seq. A second example relates to the interrelationship between the Court and the Security Council (130 et seq.) where the reader would have also expected to see an analysis of the Court’s approach on the matter taken by the Court in the advisory proceedings relating to the 2008 unilateral declaration of independence made by Kosovo. In the same vein, one might have also expected a reference to the Bosnian Genocide case, and thus an analysis of the way the Court dealt in the said case with the relevance of the practice of the International Criminal Tribunal for Yugoslavia for its own judicial practice within the chapter addressing the relationship of the Court with other judicial organs (144 et seq.). Moreover, in the chapter on agents (1151 et seq.) one would have also expected an analysis of the purported appointment of a co-agent in the Bosnian Genocide case, who had then tried to discontinue the case, as well as an analysis of mutatis mutandis the same issue as it had come up in the Case concerning Certain Questions concerning Diplomatic Relations (Honduras v. Brazil). Finally, when dealing with the Court’s power to indicate provisional measures, the somewhat novel requirement of a plausible case, as developed in the Court’s own jurisprudence during the last years, and namely in the Court’s 2014 order on provisional measures in the Case concerning Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia),10 is not dealt with at all reference only being made to the requirement of “the existence [prima facie] of the existence of the rights claimed” (1457), which might however be understood as a mere reference to the de jure existence of such rights, rather than their plausible violation, the latter being more an issue of facts. This is surprising to say the least given that the above-mentioned work by Quintana devotes eleven pages to that very topic, and does rightly so (see ibid., 659 et seq.). It is this kind of lacunae which sometimes leaves the reader with a somewhat bitter taste, while on the other hand one continues to admire the meticulous collection of the Court’s practice even with regard to questions which at least at first glance, might be perceived to be of a rather banal nature. As mentioned, apart from documents relevant to the Court’s judicial function, Volume IV also contains various indices, i.e. more specifically a table of cases, a table of names, a table of articles of the Charter, the Statute and the rules of Court cited, and finally a general index. As to the table of cases, this reviewer recalls its request already made with regard to the last edition, to split the cases listed up according to their origin, i.e. whether they are cases decided by the ICJ, the Permanent Court of International Justice, other international (arbitral) courts and tribunals, or finally cases decided by domestic courts of various jurisdictions. Besides, it would have also been helpful to include references where to find these cases in the table of 10

International Court of Justice (ICJ), Case concerning Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), Order of 3 March 2014, ICJ Report 2014, 152 et seq.

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cases, too. The general index, while not being extremely comprehensive, is of good quality and proved to be quite helpful when searching for specific terms. For everybody who has to deal with the Court or its practice, be it either as counsel, agent or judge, or as an academic, and indeed for all those interested in other international judicial institutions, the latest edition of Rosenne’s Law and Practice of the International Court (1920–2015) is certainly mandatory and indeed strongly recommended reading, the abovementioned short-comings notwithstanding. ANDREAS ZIMMERMANN Professor of International and European Law University of Potsdam

Katja Weigelt: Die Auswirkung der Bekämpfung des internationalen Terrorismus auf die staatliche Souveränität (How the war against international terrorism affects State sovereignty). Duncker & Humblot, Berlin 2016, 154 pages, ISBN 9783428145287. The recent terror attacks in Europe have shown how easily terrorists seem to move from State to State. Terrorist networks can coordinate their attacks across all boundaries. States, on the other hand, are bound by their sovereign rights and obligations, and have no effective legal mechanism to prosecute terrorist networks and individuals as soon as they reside in another State. States thus have to exchange information and cooperate with one another to effectively prevent terrorism in their own territory. However, the States of residence are often unable, or deliberately unwilling, to combat the emergence of threats on their territory. Nowadays, terrorist networks usually operate in so-called areas of limited statehood, such as Syria, Iraq, Libya, Afghanistan, or Somalia. In reaction to these threats, law enforcement authorities of affected States have been intervening into terrorists’ States of residence to fight threats to internal (homeland) security. The current debate in Germany about the legality of the military intervention of western States in Syria to fight Islamic State of Iraq and the Levant (ISIL) and the German contribution to it has raised questions regarding the legality of this longstanding practice. Are interventions to fight terrorism a violation of the right to territorial integrity of the State of residence? Or is the intervention justified by a right to self-defense of the intervening State? In her doctoral thesis Katja Weigelt attempts to find a solution for this challenge for international law and especially the principle of sovereignty. Weigelt first examines the rights of States, which try to defend themselves against terrorist acts by intervening in other States’ territories to combat non-State actors that pose a threat to their national security. Weigelt also discusses whether States of residence are obliged to combat terrorism or, in case of inability or unwillingness, whether they have to tolerate the combating of terrorism by intervening third States. By focusing on the rights and duties stemming from the principle of sovereignty, she

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asks whether a ‘responsibility to counter-terrorism’ for the State of residence is emerging as a new principle of international law. The book is divided into two main parts: In the first part, Weigelt provides for a contextualisation of the topic in international law. She introduces diverse definitions of terrorism and concludes that there exists no generally accepted definition of terrorism in international law. She differentiates international terrorism from other types of violence and analyses the possibilities of attribution of non-State violence to States by focusing inter alia on the Articles on State Responsibility and relevant decisions of the International Court of Justice (ICJ) and the International Criminal Tribunal for Yugoslavia. She concludes that not every transboundary non-State violence is attributable to the State of residence. The second part is structured in five chapters and constitutes the core of the analysis. The first chapter presents the State practice of military intervention against cross-border terrorism on foreign State territory beginning with the intervention of Israel in Lebanon in 1968 (32), and ends with the military operations of the United States of America and other States against ISIL in Iraq and Syria in 2014 (65). Weigelt compiles seventeen cases in total and identifies that intervening States have mostly been appealing to the right to self-defence. While the presentation of the case studies provides for a comprehensive account of a range of State practices to counter cross-border terrorism and addresses the practices’ politicisation, her work could have benefited from more precision in her methodological underpinnings. Weigelt does not explicate how the compilation gains significance for the legal debate. She neither asks under which conditions a rule of customary international law may have come into existence, nor does she explain to which extent the compilation of State practices may influence the interpretation of international law. Weigelt’s conclusion on the difficulty of deducing a consistent legal opinion from the compiled State practice is thus not fully convincing (70). In the second chapter, Weigelt discusses whether Article 51 UN Charter contains a right to self-defence against attacks of private actors. Based on the jurisprudence of the ICJ she interprets the terms “attack” (with regard to the legal requirement of statehood of the attacker) and “armed” (with regard to terrorist attacks). She also discusses the legal requirement of intensity. Although Weigelt briefly introduces the importance of the Vienna Convention on the Law of Treaties (VCLT) (74), she only presents grammatical, systematical, teleological, and historical interpretations and does not consider her research on State practice as subsequent State practice within the meaning of Article 31(3)(b) VCLT. Moreover, she refutes the possibility that a customary right to self-defence against non-State actors could have been emerging in addition to Article 51 UN Charter by referring to the intentions of the founding fathers of the UN Charter and the Nicaragua Judgement of the ICJ from 1986 (72). Since Weigelt’s research on State practice analyses fourteen out of seventeen cases of cross-border intervention against private actors after 1986, her work could have formed the basis for tracing the development of a customary law rule subsequent to the ICJ Judgment of 1986. The third chapter analyses the prerequisites for the application of Article 51 UN Charter for the self-defence against private actors by taking into account the territorial integrity of the State of residence. She convincingly argues different possibilities to harmonise the claims to self-defence and territorial integrity. In the fourth chapter, Weigelt briefly presents alternative

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models for the justification of violations of the territorial integrity of the State of residence, but rejects all of them. The last chapter discusses the impacts of cross-border counter-terrorism on sovereignty. Concerning the responsibility to engage in counter-terrorism, Weigelt argues that States do not only have the right to the highest authority within their territory, but also an obligation to exercise control regarding possible threats to other States in order to contribute to world peace and international security. As a whole, Weigelt’s book could have benefited from a clearer methodology. The frequent reference made by the author to general media reports, e.g. for the number of casualties in an attack, prevents the examination from being as compelling as it could be. Overall, however, the author provides a helpful introduction to understand the impacts of cross-border counterterrorism on the principle of sovereignty and the international legal order. LINUS MÜHREL Research Assistant DFG Collaborative Research Center 700 “Governance in areas of limited statehood” Freie Universität Berlin